WHITE v. U.S. BANK NATIONAL ASSOCIATION et al

Filing 40

OPINION. Signed by Judge Renee Marie Bumb on 5/11/2017. (TH, )

[ECF Nos. 14, 17, 18, 36, 38]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KENNETH WHITE,
Civil Action No. 16-5879
(RMB/KMW)

Plaintiff,
v.

OPINION

U.S. BANK, et al.,
Defendants.

Appearances:
Kenneth White
36473-060
FCI Fort Dix
Inmate Mail/Parcels
EAST: P.O. BOX 2000
Fort Dix, New Jersey

08640

Pro Se Plaintiff
Daniel Ginzburg, Esq.
The Ginzburg Law Firm, P.C.
151 Highway 516, Unit 736
Old Bridge, New Jersey 08857
Attorney for Defendants
BUMB, United States District Judge
This matter is before the Court upon a motion for summary
judgment filed by Plaintiff, appearing pro se [ECF No. 23], and
a motion for summary judgment filed by Defendants U.S. Bank
National Association (“U.S. Bank”) and Richard K. Davies
(collectively the “Defendants”).

For the within reasons,
1

Defendants’ motion will be granted, and Plaintiff’s motion will
be denied.

All other remaining motions are dismissed as moot or

without merit.
On or about July 20, 2016, Plaintiff, pro se, filed a
Complaint in the Superior Court of New Jersey, Burlington
County.

The Complaint alleged that on August 20, 2009,

Defendants “took, purloined, confiscated, from Kenneth White
(d.b.a Urban Investment Group, Inc.) out of separate business
accounts $50,104.94 (savings account) and the sum of $183,130.13
(business checking account) without any legal or personal
authorization to do so.”
3 [ECF No. 1-1].)

(Notice of Removal Ex. 1 (“Compl.”) at

Plaintiff did not allege separate causes of

action, but alleged generally that he was “entitled under the
Constitutions of New Jersey, Minnesota, and the United States to
be secure in his person, houses, papers and effects.

This right

was violated by U.S. Bank when it took Mr. White’s effects
(money), and also state and federal laws.”

Id.

On September 23, 2016, Defendants removed the action to
this Court under diversity jurisdiction pursuant to 28 U.S.C. §
1332.

Plaintiff was alleged to be a citizen of the State of

Ohio, although he is presently incarcerated at FCI Fort Dix, New

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Jersey serving a lengthy sentence with a projected release date
in 2029.1
The following facts are taken from Defendants’ Statement of
Undisputed Material Facts pursuant to L.Civ.R. 56.1(a)
(“DSUMF”).

Plaintiff has not disputed these facts, although he

has generally denied Defendants’ defenses.

In ruling on

Defendants’ Motion for Summary Judgment, the Court construes all
inferences, liberally in favor of Plaintiff, the non-moving
party.

Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d

Cir. 1983).
On October 2, 2008, Plaintiff opened a U.S. Bank account,
with an account number ending in 6154 (the “6154 Account”).

The

account was in the name of Urban Investment Group Inc. (“Urban
Investment”).
account.

Plaintiff made himself a joint owner of that

DSUMF ¶ 2 [ECF No. 17-1].

On November 7, 2008,

Plaintiff opened another U.S. Bank account, account number
ending in 5258 (the “5258 Account”) and also in the name of
Urban Investment.
account.

Plaintiff made himself a joint owner of that

Id. ¶ 3.

Plaintiff has never disputed that he is a citizen of Ohio.
An incarcerated person does not take citizenship of the state in
which he is incarcerated. McCracken v. Murphy, 129 F. App’x
701, 702 (3d Cir. 2005) (“In this case, because [the plaintiff]
was incarcerated when he filed his complaint, his citizenship is
determined by his state of domicile immediately before being
incarcerated.”).
1

3

On July 13, 2009, Plaintiff deposited a check in the amount
of $93,376.61, drawn on the account of the United States
Treasury Department, into the 5258 Account.

The payee on the

check was Conan Thompson, a non-party, who endorsed the check to
Urban Investment and sent a notarized letter to U.S. Bank
authorizing Plaintiff to deposit the check as part of a
purported real estate transaction.

Id. ¶ 4.

Four days later,

on July 17, 2009, a wire transfer in the amount of $205,000 came
into the 5258 Account.

The wire transfer was from the Bank of

America, N.A. account of Bags by Rich, which is a non-party
entity owned by Richard Dukes, who is also a non-party.
5.

Id. ¶

These large deposits raised concerns within U.S. Bank, which

contacted Bank of America.

In turn, Bank of America informed

U.S. Bank that the Bags by Rich account had recently been funded
by several large U.S. Government tax refund checks, each made
out to Ohio residents.

Id. ¶ 6.

On July 21, 2009, U.S. Bank contacted the Internal Revenue
Service (“IRS”), which confirmed that the $93,376.61 check was a
legitimate check from the U.S. Treasury Department, but the IRS
had determined that it was part of a series of checks issued as
a result of false tax returns being filed by or on behalf of
various individuals.

This was also true of the money wired into

U.S. Bank, as the IRS confirmed that each of the checks

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negotiated through the Bags by Rich account at Bank of America
was the product of false tax return filings.

Id. ¶¶ 7, 8.

Pursuant to U.S. Bank’s Deposit Agreement with Plaintiff
(the “DAA”), U.S. Bank was permitted to place a hold on
Plaintiff’s accounts if it suspected any fraudulent activity.
Specifically, the DAA stated:
We reserve the right to place a hold on your account
if we suspect irregular, fraudulent, unlawful or other
unauthorized activity involved with your account. We
may attempt to notify you of such a hold, but we are
not required to provide notice prior to placing the
hold. You agree that we may maintain such a hold until
all claims against you or us to the funds held in your
account, whether civil or criminal in nature, have
been resolved fully in our sole satisfaction.
Id. ¶ 15.

Moreover, U.S. Bank reserved the right to close any

account “for any reason or for no reason at all.”

Id. ¶ 16.

On August 3, 2009, U.S. Bank transferred funds from the
5258 Account and the 6154 Account, in the combined amount of
$233,235.07, to a holding account pending further direction from
the IRS.

Id. ¶ 17.

On October 7, 2009, the IRS sent a letter

to U.S. Bank advising that it had issued certain tax refunds
incorrectly and requested U.S. Bank’s assistance to recover any
amounts in its possession, up to $330,000, given to Plaintiff.
Id. ¶ 18.

On November 12, 2009, U.S. Bank sent a cashier’s

check to the IRS in the amount of $233,235.07, which represented
all of Plaintiff’s available funds in U.S. Bank’s possession.
Id. ¶ 19.
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SUMMARY JUDGMENT
Summary judgment should be granted if “there is no genuine
issue as to any material fact and that the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(c)(2).

A fact

is “material” if it will “affect the outcome of the suit under
the governing law . . . .”
U.S. 242, 250 (1986).

Anderson v. Liberty Lobby, Inc., 477

An issue is “genuine” if it could lead a

“reasonable jury [to] return a verdict for the nonmoving party.”
Id. at 250.
When deciding the existence of a genuine issue of material
fact, a court’s role is not to weigh the evidence: all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Products

Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).

However, “a mere

scintilla of evidence,” without more, will not give rise to a
genuine issue for trial.

Anderson, 477 U.S. at 249.

In the

face of such evidence, summary judgment is still appropriate
“where the record . . . could not lead a rational trier of fact
to find for the nonmoving party . . . .”

Matsushita Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587
(1986).

“Summary judgment motions thus require judges to assess

how one-sided evidence is, or what a fair-minded jury could
reasonably decide.”

Williams v. Borough of West Chester, Pa.,

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891 F.2d 458, 460 (3d Cir. 1989) (internal quotation marks
omitted).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”
56(e)).

Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to

concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir.
1995).
As best this Court can determine, Plaintiff’s claim against
Defendants is one of conversion under both New Jersey Law and
Minnesota Law.

The statute of limitations for such claim under

each state’s law is six years.
541.05(4).

N.J.S.A. 1A:14-1; M.S.A. §

Plaintiff waited almost seven years before filing

this lawsuit.

He has set forward no basis as to why the six
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year statute of limitations should not be enforced in this case.2
Indeed, as Defendants point out in the DSUMF, which Plaintiff
does not dispute, on July 23, 2009, a U.S. Bank representative
spoke with Plaintiff’s criminal defense counsel who noted that
Plaintiff was under criminal indictment.

DSUMF ¶ 8.

Presumably, Plaintiff was aware of the accounts’ activity and
U.S. Bank’s conduct.
Moreover, Plaintiff makes no allegations at all against the
individual Defendant, Richard K. Davis, the Chairman and Chief
Moreover, even if he had, U.S.

Executive Officer of U.S. Bank.

Bank has submitted evidence that Davis had no involvement with
this matter.

Plaintiff, once again, has not disputed this at

summary judgment.

Accordingly, summary judgment is granted in

favor of Defendant Davis.3
Summary judgment will be granted in favor of Defendants.
For the same reasons, Plaintiff’s Motion for Summary Judgment

Defendants contend that Plaintiff should have abided by
the terms of the DAA and contacted U.S. Bank within 30 days of
receiving notice of the alleged improper transfers, or to have
commenced a legal action against U.S. Bank within one year as
required by the DAA. Because this action is time-barred in any
event without reference to the shortened limitations period set
forth in the DAA, the Court need not reach this issue.
2

The Court need not reach Defendants’ argument that even if
they did not properly transfer the funds to the IRS pursuant to
the provisions of the DAA, such funds would have been
transferred to the United States anyway because Plaintiff owes
restitution in the amount of $2,183,568.47 to the United States
as a result of his criminal fraud conviction.
3

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will be denied.

The remaining pending motions are thus denied

as moot4 or without merit.5

[ECF Nos. 18, 36, 38].
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

Dated: May 11, 2017

Having dismissed the case at summary judgment, the Court
finds it unnecessary to reach Plaintiff’s motions for the
appointment of counsel. Should the Plaintiff seek to present
evidence on the tolling of the statute of limitations, he may
bring a new motion for the appointment of counsel, which the
Court will address at that point. Prior to such a motion being
brought, however, Plaintiff would need to seek relief from a
final order by way of Federal Rule of Civil Procedure 60(b).
4

Plaintiff has sought Rule 11 sanctions against Defendants
for purportedly failing to serve him with a request for
automatic extension of the return date of a motion and failure
to serve him with a letter to the Court concerning Defendants’
notification of its contacting the IRS for documents. Plaintiff
additionally appears to request sanctions for the very decision
to ask for an extension of time. None of the grounds put forth
by Plaintiff warrants sanctions under Rule 11 or any other
sanctioning power. Gordon v. United Continental Holding, Inc.,
73 F. Supp. 3d 472, 481 (D.N.J. 2014) (“Generally sanctions are
prescribed only in the exceptional circumstance where a claim or
motion is patently unmeritorious or frivolous.” (quoting Ford
Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 289 (3d
Cir. 1991)).
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