McCall et al v. Fedex Corporation et al

Filing 59

ORDER granting 53 Defendant FedEx Office & Print Services, Inc.'s Motion for Summary Judgment. Plaintiffs claims against FedEx have been dismissed, so if FedEx no longer wishes to prosecute its third party claim against Fumble Recovery, FedEx should file a notice of voluntary dismissal under Rule 41 of the Federal Rules of Civil Procedure so that the Court may close this case. Signed by Judge George C. Smith on 5/10/18. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BONDARY MCCALL,
Plaintiff,
vs.

Case No.: 2:17-cv-381
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers

FEDEX CORPORATION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendant FedEx Office & Print Services, Inc.’s
(“FedEx”) Motion for Summary Judgment. (Doc. 53). Plaintiff Bondary McCall has not
technically responded in opposition, but has filed a Notice and two letters to the Court. (Docs.
54, 57, and 58). Defendant has replied and this matter is now ripe for review.
I.

BACKGROUND
Plaintiff Bondary McCall initiated this case in the Franklin County Court of Common

Pleas on April 3, 2017. (See Doc. 2). Defendants removed the case to this Court on May 4,
2017. (Doc. 1). In his Amended Complaint, Plaintiff alleges that on April 19, 2016, he parked
in the FedEx parking lot and entered FedEx to send a fax. (Doc. 12, Am. Compl. ¶ 13–14).
While in the FedEx store, Plaintiff observed his vehicle being towed by a Fumble Recovery tow
truck. Plaintiff ran out of the store and confronted the tow truck driver. Plaintiff provided a
receipt from the store. The tow truck driver ultimately left with Plaintiff’s vehicle. Plaintiff then
returned to the FedEx store and spoke with the store manager, Brenda Keim, and demanded that
his car be returned. (Id. at 14). Plaintiff’s car was then returned to the FedEx parking lot within

fifteen minutes. (Docs. 53-1 and 53-3). Defendant asserts that the decision to tow Plaintiff’s car
was made by Fumble Recovery’s spotter, not by any employee of FedEx. Rather, it was FedEx
employee Brenda Keim who assisted in getting Plaintiff’s car returned so quickly. Plaintiff
initiated this lawsuit seeking damages based on claims for unlawful seizure, trespass, and
removal of his vehicle.
II.

STANDARD OF REVIEW
Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure. Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716–17 (6th Cir. 2012). The Court’s
purpose in considering a summary judgment motion is not “to weigh the evidence and determine
the truth of the matter” but to “determine whether there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds
a jury could return a verdict, based on “sufficient evidence,” in favor of the nonmoving party;
evidence that is “merely colorable” or “not significantly probative,” however, is not enough to
defeat summary judgment. Id. at 249–50.
The party seeking summary judgment shoulders the initial burden of presenting the Court
with law and argument in support of its motion as well as identifying the relevant 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). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts

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showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant
must “produce evidence that results in a conflict of material fact to be resolved by a jury”).
In considering the factual allegations and evidence presented in a motion for summary
judgment, the Court “views factual evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of
fact sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F.
Supp. 2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence
to support [the non-moving party’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251.
III.

DISCUSSION
Plaintiff appears to be bringing a claim for unlawful seizure of his property against

Defendant FedEx and seeking judgment on an administrative action as a result of his car being
towed from the FedEx parking lot on April 19, 2016. Defendant moves for summary judgment
on these claims.
As discussed in the Court’s Opinion and Order denying Plaintiff’s Motion for Summary
Judgment, Plaintiff has failed to sufficiently allege any facts to support a claim against FedEx.
Further, Defendant asserts that Plaintiff has failed to respond to discovery to establish a genuine
issue of material fact. All of the allegations in Plaintiff’s Amended Complaint suggest that the
actions taken with respect to the towing of Plaintiff’s car were made by a third party, Fumble

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Recovery.1 The only evidence presented with respect to FedEx establishes that Plaintiff was a
customer of FedEx when his car was towed. Plaintiff has not set forth any legal ground upon
which to recover money damages from FedEx. Plaintiff has not submitted any evidence that he
suffered any type of harm as a result of the alleged actions in this case. Plaintiff has not alleged
harm to his property, to the car that was towed, or to his person. The car was immediately
returned to Plaintiff and he was merely inconvenienced.
Therefore, because Plaintiff has not established the elements to prove any claims against
Defendant FedEx, nor has he alleged any specific actions taken by FedEx, Defendant FedEx is
entitled to summary judgment on Plaintiff’s claims. Accordingly, Defendant’s Motion for
Summary Judgment is GRANTED.
Given that Plaintiff’s claims against FedEx have been dismissed, if FedEx no longer
wishes to prosecute its third party claim against Fumble Recovery, FedEx should file a notice of
voluntary dismissal under Rule 41 of the Federal Rules of Civil Procedure so that the Court may
close this case.
The Clerk shall remove Document 53 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

1

On August 21, 2017, Defendant FedEx filed a Third Party Complaint against Fumble Recovery, LLC. However,
to date, Fumble Recovery still has not been served. (See Doc. 21).

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