Boyd v. Wells Fargo Financial Bank, Inc. et al
Filing
34
ORDER granting Wells Fargo Bank, N.A.'s 27 Motion for Summary Judgment. The parties shall have seven days from today's date to provide evidence as to whether WFFBI is a legal entity capable of being sued. Signed by Judge Lisa G. Wood on 10/23/2017. (ca)
3in t^t ?l9[mteb States! Btsitnct Conrt
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Pntttofottli Btbtotott
MICHAEL BOYD,
Plaintiff,
CV 216-151
V.
WELLS FARGO FINANCIAL BANK,
INC., WELLS FARGO BANK, N.A.,
Defendants.
ORDER
This matter comes before the Court on Defendant Wells Fargo
Bank,
N.A.'s
27).
This Motion has been fully briefed and is now ripe for
review.
('"WFBNA")
For the
Motion
for
Summary
Judgment
reasons set forth below, the
(Dkt.
Motion
No.
will be
GRANTED.
FACTUAL BACKGROUND
Plaintiff
August
2009,
Michael
Boyd
Defendant
published
Plaintiff's indebtedness to
Dkt.
No.
1-1,
p.
127
asserts
51
that
false
at
statements
various credit
3.
Plaintiff
various
times
regarding
reporting agencies.
asserts
that
statements adversely affected his ability to obtain a loan.
5[
A0 72A
(Rev. 8/82)
5.
Plaintiff
further
asserts
that
he
in
notified
the
these
Id.
various
credit reporting agencies that these statements were false but
that Defendant failed to correct the faulty information.
5
7.
PROCEDURAL HISTORY
This case has a procedural history dating back to 2009.
September
4,
2009,
Plaintiff filed
a
complaint against
On
Wells
Fargo Financial Bank, Inc. (^"WFFBI") in the State Court of Glynn
County.
Dkt. No. 1-1 p. 6; Dkt. Nos. 27-1, 30-1 1 1.
Defendants were named.
falsely
communicated
Equifax
Information
including
a
statement
Id.
That Complaint alleged that WFFBI
material
information
Services,
that
No other
about
Experian,
Plaintiff
was
Plaintiff
and
indebted
Dkt. No. 1-1 p. 6; Dkt. Nos. 27-1, 30-1 12,
to
Transunion,
to
WFFBI.
In an attempt to
serve WFFBI, Plaintiff delivered the Complaint to Mary Glembin,
an employee of WFFBI in Minnehaha County, South Dakota.
No. 1-1, p. 9; Dkt. Nos. 27-1, 30-1 1 4.
in
the
case,
and the
state
WFFBI never appeared
court entered
favor of Plaintiff on November 5, 2014.
Dkt.
default judgment in
Dkt. No. 1-1, pp. 11-
12; Dkt. Nos. 27-1, 30-1 1 5-6.
On April 5, 2016, WFBNA moved to set aside the judgment on
the basis that WFFBI did not exist and that WFBNA was unaware of
the suit when default judgment was entered.
90-91.
Dkt. No. 1-1, pp.
The state court accordingly set aside the judgment on
August 12, 2016.
Id. at 104; Dkt.
Nos. 27-2, 30-1 1 7.
On
August 11, 2016, Plaintiff moved to add WFBNA as a party in the
state
court action.
Dkt.
No. 1-1,
p.
110.
The
state
court
granted this request, without explaining its reasoning.
111.
p.
Defendant ultimately removed the action to this Court on
November 11, 2016, and this Court denied Plaintiff's motion to
remand.
Dkt. No. 1; Dkt. No. 25.
LEGAL STANDARD
Summary judgment is required where ^^the movant shows that
there is no genuine dispute
as to any material fact and the
movant is entitled to judgment as a matter of law."
Civ. P. 56(a).
A fact is ^'material" if it ^^might affect the
outcome of the suit under the governing law."
Grp.
V.
FindWhat.com,
(quoting
Anderson
(1986)).
Fed. R.
v.
658
F.3d
1282,
1307
Liberty Lobby, Inc.,
FindWhat Inv'r
(11th
477
Cir.
2011)
U.S. 242, 248
A dispute is "genuine" if the "evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Id.
In making this determination, the court is to view all of
the evidence in the light most favorable to the nonmoving party
and
draw
Johnson
v.
all
reasonable
Booker
T.
inferences
Washington
in
Broad.
that
Serv.,
party's
Inc.,
favor.
234
F.3d
501, 507 (11th Cir. 2000).
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
V. Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp.
The movant must show the
court that there is an absence of evidence to support the
nonmoving party's case.
Id. at 325.
If the moving party
discharges this burden, the burden shifts to the nonmovant to go
beyond the pleadings and present affirmative evidence to show
that a genuine issue of fact does exist.
Anderson, 477 U.S. at
257.
The nonmovant may satisfy this burden in two ways.
First,
the nonmovant ^^may show that the record in fact contains
supporting evidence, sufficient to withstand a directed verdict
motion, which was ^overlooked or ignored' by the moving party,
who has thus failed to meet the initial burden of showing an
absence of evidence."
Fitzpatrick v. City of Atlanta, 2 F.Sd
1112, 1116 {'llth Cir. 1993) (quoting Celotex Corp., 477 U.S. at
332 (Brennan, J., dissenting)).
Second, the nonmovant "may come
forward with additional evidence sufficient to withstand a
directed verdict motion at trial based on the alleged
evidentiary deficiency."
Id. at 1117.
Where the nonmovant
attempts to carry this burden instead with nothing more "than a
repetition of his conclusional allegations, summary judgment for
the defendants [is] not only proper but required."
Morris v.
Ross, 663 F.2d 1032, 1033-34 (llth Cir. 1981) (citing Fed. R.
Civ. P. 56(e)).
DISCUSSION
Defendant moves for summary judgment, arguing that it was
sued
after
the
statute
of
limitations
had
run
and
that
the
claims do not relate back to those filed before the limitations
period had run.
Dkt. No. 4.
Plaintiff added^ WFBNA on August
17, 2016, asserting claims under the Fair Credit Reporting Act
(^'FCRA"),^
actions
which
that
has
a
allegedly
two-year
occurred
statute
in
of limitations, for
August
2009.
15
U.S.C.
§ 1681p(l); Dkt. Nos. 27-1, 30-1 SISI 3, 8. Because the statute of
limitations
has
run.
Plaintiff
can
only
bring
claims
against
WFBNA if they relate back to those filed against WFFBI in August
2009 according to Federal Rule of Civil Procedure 15(c).
In federal court^, claims asserted after the running of the
statute of limitations against a new defendant relate back to
those
filed
when
(1) the
before
claim
its
running
arose
out
against
of
the
a
different
same
defendant
transaction
or
occurrence as that alleged in the original complaint; (2) the
new defendant received notice of the action within ninety days^
of the original complaint; and (3) the new defendant knew within
^ The result is the same regardless of whether WFBNA was added or substituted.
^ Though the complaint does not make clear what claims are asserted. Plaintiff
maintains in his briefs that he brought both FCRA and defamation claims. The
addition of the defamation claim does not save Plaintiff. The applicable
Georgia statute of limitations is one year.
O.C.G.A. § 9-3-33.
^ Because the Federal Rules do not apply in state court, the State Court of
Glynn County has not addressed whether Plaintiff s claims against WFBNA
relate back to those filed against WFFBI, contrary to Plaintiffs
speculation.
^ The presumptive time of serving a defendant was 120 days before 2015.
change has no bearing on a case like the present one.
The
ninety days of the original complaint that the action would have
been brought against it but for a mistake concerning the proper
party's identity.
Fed. R. Civ. P. 15(c)(1)(C)(i)-(ii).
Plaintiff easily satisfies the first requirement:
both the
original claim against WFFBI and the new claim against WFBNA
arose out of a Wells Fargo entity's allegedly false statements
to various credit reporting agencies regarding Plaintiff's debt
status.
Dkt. Nos. 27-1, 30-1 SIS 3, 11.
But Plaintiff does not
fare so well for the second and third requirements.
As already found by the state court, WFBNA (and WFFBI, for
that
matter)
had
not
received
notice
of
the
claim
filed
in
September 2009 when default judgment was entered in 2014—much
less within ninety days of the complaint.
108.
That
judgment.
when
is
Id.
its
the
employee,
to
Mary
court,
accept
related entity."
court
Glembin,
which
service
set
received
aside
the
default
found,
on
receive
O.C.G.A. § 9-11-4(e)(1).
the
Complaint
in
This argument already lost
^'Mary
behalf
Dkt. No. 1-1, p. 108.
statutorily authorized to
itself.
state
Dkt. No. 30 p. 2.
state
authorized
the
Plaintiff asserts that Defendant received notice
September 2009.
in
why
Dkt. No. 1-1, p. 104-
of
Glembin
any
was
Wells
not
Fargo-
Mere employees are not
service for the
corporation
Neither is her awareness of a
lawsuit imputed to her employer, especially where Glembin has
not been employed at WFBNA since November 2009.
Dkt. No. 1-1,
p. 84.
Plaintiff
has
provided
no
evidence
that
Glembin
was
anything but a mere employee.
Defendant has shown through the
affidavits
Trent
of
WFBNA
employees
Arndt
and
Enrique
Lopez
(Dkt. Nos. 1-1, pp. 83-86) that Glembin was a Loan Servicing
Specialist 3—not a president, officer, or registered agent for
service.
Plaintiff has provided no evidence to contradict this
showing.
Nothing
in
the
record
indicates
that
she
was
authorized to receive service of process or held a position that
would
bind
prejudiced
her
in
actual
employer.
defending
occurred nine years ago.
a
Moreover,
suit
for
which
WFBNA
would
actions
be
allegedly
Defendant's argument that evidence and
witnesses of the underlying facts have dissipated is persuasive.
As
a
result.
Defendant
did
not
receive
notice
of
the
action
within the appropriate time, and Plaintiff fails to satisfy the
second requirement for relation back.
Failure of any of the three requirements dooms the relation
back.
No
But Plaintiff also fails to meet the third requirement.
evidence
Plaintiff
Even
has
would
assuming
WFBNA,
the
events
that
been
have
that
sued
it
itself
suggest
showing
but
Gemblin's
complaint
would
produced
for
a
knowledge
lacked
to
that
WFBNA
WFBNA
mistake
could
details
that
of
it
knew
in
be
the
was
that
identity.
imputed
to
underlying
the
proper
defendant.
The complaint did not detail communications between
Wells Fargo entities and the credit reporting agencies.
Thus,
Plaintiff's
those filed
claims
against
against WFFBI, and
WFBNA
do
not
relate
back to
Defendant's Motion for Summary
Judgment will be GRANTED.
CONCLUSION
For
Bank,
the
N.A.'s
GRANTED.
reasons
Motion
set
for
forth
Summary
above,
Defendant
Judgment
(Dkt.
Wells
No.
Fargo
27)
is
It is the Court's understanding that Defendant WFFBI
has been deemed a
but concede so.
nonexistent entity.
Plaintiff's briefs all
The parties shall have seven days from today's
date-to provide evidence as to whether WFFBI is a legal entity
capable of being sued.
SO ORDERED, this 23^^ day of October, 2017.
LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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