Buechler v. Best Gaming, Inc. et al
MEMORANDUM AND ORDER denying 15 Plaintiff's Motion for Partial Summary Judgment; granting 21 Plaintiff's Motion to Strike Defendant's Sur-Reply; and directing Plaintiff to arrange a telephone conference. Signed by Judge Marvin J. Garbis on 4/30/13. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BEST GAMING, INC., et al.
CIVIL ACTION NO. MJG-12-2491
MEMORANDUM AND ORDER
The Court has before it Plaintiff's Motion for Partial
Summary Judgment [Document 15],
Plaintiff's Motion to Strike
Defendant's Sur-Reply [Document 21] and the materials submitted
The Court finds it unnecessary to consider
Defendant's "sur-reply" [Document 20] and finds no need for a
hearing on the summary judgment motion.
A motion for summary judgment shall be granted if the
pleadings and supporting documents "show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."
Fed. R. Civ. P.
The well-established principles pertinent to such
motions can be distilled to a simple statement:
The Court may
look at the evidence presented in regard to the motion for
summary judgment through the non-movant's rose colored glasses,
but must view it realistically.
After so doing, the essential question is whether a
reasonable fact finder could return a verdict for the non-movant
or whether the movant would, at trial, be entitled to judgment
as a matter of law.
See, e.g., Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).
Plaintiff seeks to impose liability on Defendant by virtue
of the alleged fact that on June 29 and August 1, 2012 he was
charged a $3.00 ATM terminal fee on an ATM machine that did not
have a notice required by the Electronic Funds Transfer Act.
U.S.C. § 1603 et seq.
Plaintiff has presented his sworn
declaration, together with photographs that the Court will
assume1 show the ATM machine without notices at the time of
Defendant is not relying upon the bona fide error defense
under 15 U.S.C. § 1694(h).
of fraudulent conduct.
Rather Defendant accuses Plaintiff
Defendant asserts that Plaintiff
"intentionally and fraudulently either a) removed the fee notice
from the subject machine and placed the notice back on the
machine, or b) took photographs of the machine with the fee
notice attached and "photo-shopped" the image to digitally
The photographs presented are not particularly clear.
Plaintiff's statement can reasonably be interpreted to mean
that the photographs were taken at the time of the transactions
at issue although it does not precisely so state.
remove the fee notice from the photograph."
[Document 18] at 4 (emphasis in original).
the affidavit of the manager of its establishment stating that
she was present on the dates at issue and at many other times
since it was installed in August 2011.
She states that the
machine was in a readily observable location and that she "never
observed the required fee notice not be on the machine."
Smallwood Aff. [Document 18-1] at 1 (emphasis in original).
Plaintiff contends that there is no genuine issue of
material fact because the affidavit is not based on the
affiant's personal knowledge, primarily because in her
affirmation she stated that her statement was "true and correct
to the best of my knowledge, information and belief."
Court does not agree.
There are portions of the Affidavit that
can be viewed as not statements of direct personal observation.
For example, the statement that at the times of the transactions
the "bar area would have been extremely crowded," etc.
However, as to the presence or absence of a notice, the
witness' statement can most reasonably be interpreted to
constitute the affirmative statement that she personally
observed the ATM machine with the notice thereon during relevant
If the jury should find that the witness saw the ATM
machine with the notice thereon at times reasonably close to the
transactions at issue, there would be a reasonable question
raised as to whether Plaintiff took an action as alleged by
The Court finds that there are genuine issues of material
fact that prevent a grant of partial summary judgment to
For the foregoing reasons:
Plaintiff's Motion for Partial Summary Judgment
[Document 15] is DENIED.
Plaintiff's Motion to Strike Defendant's SurReply [Document 21] is GRANTED.
Plaintiff shall arrange a telephone conference,
to be held by May 15, 2013, to schedule trial
SO ORDERED, on Tuesday, April 30, 2013.
Marvin J. Garbis
United States District Judge
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