Driessen v. Woodforest National Bank
Filing
30
REPORT AND RECOMMENDATION1 THAT: (1) DEFENDANTS MOTION FOR SUMMARY JUDGMENT (Doc. 17 ) BE GRANTED; (2) PRO SE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT (Doc. 26 ) BE DENIED; AND (3) JUDGMENT BE ENTERED AGAINST PLAINTIFF AND IN FAVOR OF DEFENDANT AS TO ALL CLAIMS SET FORTH AGAINST IT IN PLAINTIFF'S COMPLAINT (Doc. [1-3]) Objections to R&R due by 10/15/2012. Signed by Magistrate Judge Michael J Newman on 09/28/12. (pb1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROCHELLE DRIESSEN,
Case No. 3:12-cv-91
:
Plaintiff,
:
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
-vs.:
WOODFOREST NATIONAL BANK,
:
Defendant.
REPORT AND RECOMMENDATION1 THAT:
(1) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 17)
BE GRANTED; (2) PRO SE PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT (Doc. 26) BE DENIED; AND (3) JUDGMENT BE ENTERED AGAINST
PLAINTIFF AND IN FAVOR OF DEFENDANT AS TO ALL CLAIMS SET FORTH
AGAINST IT IN PLAINTIFF’S COMPLAINT (Doc. 1-3)
I.
INTRODUCTION
Plaintiff Rochelle Driessen, a resident of Dade County, Florida, brings this case pro se2
raising claims under the Electronic Fund Transfer Act, 15 U.S.C. § 1601 et seq. (“EFTA”),
which regulates the participants in electronic fund transfer systems. See doc. 3.
Because
Plaintiff’s claim arises under EFTA, this matter is within the Court’s federal question
jurisdiction. See 28 U.S.C. § 1331.
Plaintiff initiated this action based upon a series of emails she received from various
@hotmail.com and @skymail.mn email addresses. See doc. 4-1 at PageID 13-16. The emails
stated that the “United Nation” [sic] deposited $8,300,000.00 for her at Woodforest National
1
Attached hereto is NOTICE to the parties regarding objections to the Report and
Recommendation.
2
The Court previously granted Plaintiff’s motion to proceed in forma pauperis. See doc.
2.
Bank3 (hereinafter “Woodforest”), Defendant in this action. Id. The emails also explained that
Plaintiff could get the $8.3 million from Woodforest only if she paid a “transfer fee” of $450.00
to the sender of the emails. Id. Plaintiff did not pay the transfer fee, and instead filed this action
against Woodforest, under EFTA, for its alleged failure to disburse the $8.3 million purportedly
being held in her name.
This case is before the Court on Woodforest’s motion for summary judgment (doc. 17),
and pro se Plaintiff’s cross-motion for summary judgment (doc. 26). Both motions, having been
fully briefed, are ripe for Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B). For the
reasons that follow, the Court recommends that: (1) Woodforest’s motion for summary judgment
be granted; (2) Plaintiff’s motion for summary judgment be denied; and (3) that judgment be
entered against Plaintiff and in favor of Woodforest as to all claims set forth against it in
Plaintiff’s complaint (doc. 1-3).
II.
RELEVANT FACTS
On March 13, 2012, Plaintiff received an email from the email address
“woodfostbank@skymail.mn” [sic] stating, inter alia:
Subject: ATIENTION [sic]: THIS IS TO NOTIFY YOU THAT YOUR FUNDS
ARE CURRENTLY» BEING LODGED INTO WOOD FOREST NATIONAL
BANK [sic] IN DAYTON OHIO BRANCH BECAUSE» WE HELD MEETING
[sic] TODAY WITH THE (UNITED NATION) [sic] BECAUSE THEY
TOTALLY GIVES» [sic] BENEFICAIRIES [sic] LIKE YOU THE
OPPORTUNITY TO TRANSFER FUNDS VIA TELEPHONE» BANKING TO
BE ABLE TO ESCAPE INTERNATIONAL MONETARY POLICIES
AGAINST» TRANSFER OF FUNDS ABOVE MILLION US DOLLARS [sic].
HOWEVER, THIS NEW PAYMENT» ARRANGEMENT IS DESIGNED TO
HELP YOU GET ACCESS TO GLOBAL TELEPHONE BANKING» AND
COMPLETE TRANSFER OF FUNDS WITHOUT ANY DELAY. [sic]
FINALLY, FURNISH US» YOURcULL [sic] NAME AND YOUR MOBILE
TELEPHONE NUMBER AND A COPY OF YOUR ID ,IS» [sic] ALL WE
3
Woodforest is a national bank association operating under the Federal Deposit Insurance
Corporation (“FDIC”). Doc. 7.
2
NEED AND YOUR ACCOUNT WILL BE ACTIVATED, [sic] THIS IS TO
MAKE SURE YOU» ARE THE RIGHT PERSON. UPON THE RECEIPT OF
YOUR EMAIL YOUR ACCOUNT WILL BE» ACTIVE IN 24 HRS. THANK
YOU FOR BANKING WITH US. MR.RENEE D ,GRAHAM» [sic]
Id.
The sender of the email, “MR.RENEE D ,GRAHAM [sic]” did not explain why Plaintiff
was suddenly the recipient of any money, let alone $8.3 million. Id. Nevertheless, the email
asked Plaintiff to provide her mobile telephone number and a copy of her identification. Id.
Plaintiff responded with the requested information, via email, on March 14, 2012. Id.
On the morning of March 15, 2012, Plaintiff received another email from the same email
address, woodfostbank@skymail.mn [sic], which directed her to contact “James Lewis” by email
at “woodforstbnk011@hotmail.com [sic]” or by telephone at (940) 604-7098. 4 Doc. 1-4 at
PageID 13. The email, sent from “Mr Renee Graham [sic]” states, inter alia:
ATIENTION [sic]: Rochelle Yvette Driessen Thanks for your mail information
[sic] However, Your payment will now be made to you through a correspondent
paying bank Wood forest Bank [sic] This will be via their Telephone Online
Banking Automated Funds Transfer System. [sic]
Id. The email informed Plaintiff that she was required to make a payment in the amount of
$150.00 to “open and re-activate” her account. Id. Attached to the email was a document
purporting to be a “Certificate of Deposit,” in the amount of $8.3 million from the United
Nations, bearing the Woodforest name and a Dayton, Ohio mailing address. Doc. 1-4 at PageID
13-14.
That same day, Plaintiff received a follow-up email from “James Lewis,” but from a
different email address: “wfnb202@hotmail.com.” Doc. 1-4 at PageID 15. This email claimed
that an account existed at Woodforest, in the name of a “Donald D. Laubach,” which contained
4
The Court takes judicial notice that (940) is an area code for a northern portion of Texas.
3
$8.3 million. Id. Plaintiff was informed: “If you want to this check this account ,please [sic] call
347 943 12555 and you listen [sic] the operator will ask you to press 2 to account department to
check your account and once you press 2 it will ask you to put the account number and pin
number then it will tell you how much is in the account[.] [sic]” Id.
Shortly thereafter, Plaintiff responded via email and indicated that she called the
automated number provided in the previous email, but was informed that she needed a “transfer
code” to access the funds. Id.
At 8:01 p.m. on March 15, 2012, Plaintiff then received an email from “James Lewis” -but from a different email address, “woodforstbnk011@hotmail.com [sic]” -- which informed
her that she needed to pay $450.00 to obtain the “transfer code.” Id. When Plaintiff responded
with emails indicating her refusal to pay for the “transfer code,” she received unsigned emails
from “wfnb202@hotmail.com” which stated that her account would be “suspended.” Doc. 1-4,
PageID 15-16.
The emails from wfnb202@hotmail.com explained: “please if you are not
interested your account will be suspended [sic]” and “we can not wait any longer pay [sic] and
have your fund or else it will over by monday[.] [sic]” Id.
On March 26, 2012, Plaintiff filed this action seeking $8.3 million from Woodforest.
Doc. 1-3.
Woodforest does not dispute that any or all of the above described facts may have
occurred.
See docs. 7, 17, 25.
Nor does Woodforest dispute that each of the email
communications attached to Plaintiff’s complaint were actually received or initiated by her. See
id. Rather, Woodforest argues that Plaintiff has been the target of a scam which was intended to
steal, at the minimum, $450 from her. Id.
5
The Court takes judicial notice that (347) is an area code for a portion of New York City.
4
Attached to Woodforest’s motion for summary judgment are affidavits from three
Woodforest employees who aver, inter alia, that: (1) Woodforest has never had any bank
account associated with the name “Rochelle Driessen;” (2) Woodforest has never had any
account numbered “872436547,” which was identified in a March 15, 2012 email, sent from
wfnb202@hotmail.com, as the account number which contained $8.3 million (cf. doc. 1-4 at
PageID 15); (3) Woodforest did not receive a deposit of $8.3 million from the United Nations -or the “United Nation” [sic] -- on or around November 28, 2011, the date indicated on the
“Certificate of Deposit” emailed to Plaintiff (cf. doc. 1-4 at PageID 14); (4) Woodforest has
never issued a Certificate of Deposit with a deposit code of WF00423615, which is the “deposit
code” on the “Certificate of Deposit” emailed to Plaintiff (cf. id.); (5) Woodforest has no
“telephone bank accounts”; and (6) Woodforest did not send Plaintiff any of the communications
alleged in her Complaint. See Affidavit of Lisa Cotton, doc. 17-2 at PageID 81-82 (hereinafter
“Cotton Aff.”); Affidavit of Richard Ferrara, doc. 17-3 at PageID 86 (hereinafter “Ferrarra
Aff.”); Affidavit of James Lewis, doc. 17-1 at PageID 78-79 (hereinafter “Lewis Aff.”)
Additionally, one of the employees, Mr. James Lewis, avers that he is the manager of a
Woodforest branch, but is not the same “James Lewis” who sent the aforementioned emails to
Plaintiff from the @hotmail.com accounts. See Lewis Aff., doc. 17-1 at PageID 78-79.
Plaintiff submitted no affidavits or evidence refuting the averments made by the
Woodforest employees. See doc. 22, 26. Nevertheless, she maintains that Woodforest has
violated EFTA by wrongfully withholding $8.3 million that she claims the United Nations
deposited for her benefit. Doc. 26.
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III. SUMMARY JUDGMENT STANDARD
In this case, the parties have submitted cross motions for summary judgment. Docs. 17,
26. Resolving such competing motions does not alter the applicable legal standards described in
Fed. R. Civ. P. 56. “The filing of cross-motions for summary judgment does not necessarily
mean that the parties consent to resolution of the case on the existing record or that the district
court is free to treat the case as submitted for final resolution on a stipulated record.” Taft Broad.
Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (citations omitted). Instead the Court
grants or denies each motion for summary judgment on its own merits, applying the standards of
Rule 56. See id.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. “A genuine issue of material fact exists when, ‘there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party.’” White v. Wyndham Vacation
Ownership, Inc., 617 F.3d 472, 475-76 (6th Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986)).
However, the non-moving party must present some evidence to
show a genuine issue for trial exists. “[I]f the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Id. at 476 (quoting Anderson, 477 U.S. at 24950) (internal quotation marks omitted).
In ruling on a motion for summary judgment (in other words, in determining whether or
not there is a genuine issue of material fact), “[a] district court is not…obligated to wade through
and search the entire record for some specific facts that might support the nonmoving party’s
claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Thus, a court is
6
entitled to rely, in determining whether a genuine issue of material fact exists on a particular
issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories
and admissions on file, together with any affidavits submitted, specifically called to its attention
by the parties.
IV. ANALYSIS
Plaintiff’s entire case is based upon a series of emails sent from three email addresses:
wfnb202@hotmail.com; woodfostbank@skymail.mn [sic]; and woodforstbnk011@hotmail.com
[sic].
In two of the three email addresses, the “Woodforest” name is spelled incorrectly.
Moreover, two of the addresses are from the hotmail.com domain, a free web-based email
system; the third, skymail.mn, bears the internet country code of Mongolia (.mn). None of the
emails are from woodforest.com, which is the domain name owned and operated by Woodforest,
and the address from which all Woodforest employees are required to utilize when conducting
business on Woodforest’s behalf. See Ferrara Aff., doc. 17-3 at PageID 86; Lewis Aff., doc. 171 at PageID 78-79.
Other than the aforementioned emails, Plaintiff has not produced any evidence
demonstrating that the United Nations -- or the “United Nation” [sic] as identified in the initial
email -- has deposited any money on her behalf at Woodforest. Plaintiff has produced no bank
statements, signature cards, account agreements, wire transfer receipts, or any correspondence
bearing either United Nations or Woodforest letterhead.
Moreover, of the correspondence
Plaintiff has produced, there is no evidence that those emails were actually sent by a Woodforest
agent, and not an imposter who set up a free email account through hotmail.com.
Furthermore, Plaintiff does not refute or provide any evidence contradicting the affidavits
of three Woodforest employees which state that Plaintiff has never had any bank account at
7
Woodforest, let alone any account numbered “872436547” (as identified the a March 15, 2012
email, sent from wfnb202@hotmail.com). See Lewis Aff., doc. 17-1 at PageID 79; Cotton Aff.,
doc. 17-2 at PageID 81-82; cf. doc. 1-4 at PageID 15. Similarly, Plaintiff does not address or
provide any evidence to oppose the Woodforest employees’ assertions that Woodforest never
received a deposit of $8.3 million from the United Nations on or around November 28, 2011 (the
date indicated on the “Certificate of Deposit” emailed to Plaintiff); never issued a Certificate of
Deposit with a deposit code of WF00423615 (which is the “deposit code” on the “Certificate of
Deposit” emailed to Plaintiff); and does not maintain “telephone bank accounts.”
Id.
Accordingly, the facts set forth in the Cotton, Ferrara, and Lewis affidavits are undisputed as a
matter of law, and are accepted as true. Anderson, 477 U.S. at 248-50.
Although Plaintiff’s sole cause of action is based upon EFTA, she has not provided any
evidence that she had an “account” at Woodforest, as defined by 15 U.S.C. § 1693a. Nor has
Plaintiff produced evidence that she had any relationship with Woodforest which would invoke
EFTA, or otherwise create a duty of care under any state or federal law. Moreover, Plaintiff has
produced no colorable evidence that an “electronic funds transfer,” as defined by EFTA, actually
occurred here. See 15 U.S.C. § 1693a. Emails stating that an $8.3 million electronic transfer
from the “United Nation” to Woodforest (and for Plaintiff’s benefit) occurred -- sent from
various hotmail.com and skymail.mn email accounts which misspell Woodforest’s name -- are
insufficient proof that an “electronic fund transfer” in fact occurred. Therefore, as Plaintiff is
unable to present a viable claim under the EFTA, summary judgment in Woodforest’s favor is
warranted.
Even if Plaintiff’s complaint is liberally construed to contain a cause of action based in
tort, see Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005) (courts construe pro se filings
8
liberally), recovery against Woodford is likewise impossible under common-law tort principles.
Plaintiff’s lack of any account or relationship with Woodforest as a customer inexorably leads to
the conclusion that Woodforest bore no duty of care to Plaintiff. Ohio tort law limits recovery to
those who have been the victims of a tortfeasor owing them some legally cognizable duty of
care. The first element of a prima facie case under Ohio tort law, therefore, is a showing that the
defendant owed such a duty. See Wolfe v. Continental Cas. Co., 647 F.2d 705, 710 (6th Cir.
1981); 88 O.Jur.3d Torts § 3.
It is well established that even a plaintiff alleging simple
negligence “must prove that the defendant owed the plaintiff a duty, that the defendant breached
that duty, that the plaintiff suffered harm and that the harm was proximately caused by the
defendant’s breach of duty.” Cooperider v. Peterseim, 103 Ohio App. 3d 476, 479 (1995).
The existence or non-existence of a duty is a question of law for the Court. Mussivand v.
David, 45 Ohio St.3d 314, 318 (1989).
Ohio follows the prevailing rule that a bank owes no
duty to a person who is neither a customer nor an account-holder. Loyd v. Huntington Nat’l
Bank, No. 1:08-cv-2301, 2009 U.S. Dist. LEXIS 51858, *7, n. 32 (N.D. Ohio June 18, 2009).
See also Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 227 (4th Cir. 2002) (holding that
banks do not owe non-customers a duty of care); Chaney v. Dreyfus Serv. Corp., 595 F.3d 219,
232 (5th Cir. 2010) (same); Conder v. Union Planters Bank, N.A., 384 F.3d 397, 399-400 (7th
Cir. 2004) (same); IBP, Inc. v. Mercantile Bank of Topeka, 6 F. Supp. 2d 1258, 1265 (D. Kan.
1998) (noting that “nearly every court has reasoned that a bank owes no duty of care to a noncustomer with whom it has no relationship”). The reasoning behind this rule is simple and
sensible -- if banks owed duties to non-customers, they would be exposed to “unlimited liability
for unforeseeable frauds.” Eisenberg, 301 F.3d at 226. Here, based upon the lack of evidence
showing any relationship between Plaintiff and Woodforest, the Court finds that Woodforest
9
owed no duty to Plaintiff, and thus could not have breached a duty to her. Therefore, because
Plaintiff cannot show a breach of any duty, she cannot maintain an action against Woodforest
based in tort.
The evidence produced by Plaintiff, if anything, indicates that Plaintiff was the target of a
scam perpetrated by an unknown third party, attempting to pass itself off as Woodforest.6 The
text of the emails themselves -- besides being riddled with spelling, grammatical, and
punctuation errors -- should have alerted Plaintiff to their fraudulent nature. The initial email
Plaintiff received identified no legitimate reason as to why Plaintiff would be given $8.3 million
from the United Nations other than an apparent desire to “ESCAPE INTERNATIONAL
MONETARY POLICIES AGAINST» TRANSFER OF FUNDS ABOVE MILLION US
DOLLARS. [sic]” Doc. 1-4 at PageID 13. In addition to the misspellings of the “Woodforest”
name in the hotmail.com email addresses discussed supra, the emails also erroneously refer to
“WOOD FOREST NATIONAL BANK” and “Wood-forest [sic]”-- not the institution’s name a
singular word. Cf. id.; Doc. 1-4 at PageID 13, 15. The emails also contain more nuanced
indicators of fraud, such as the area codes of the telephone numbers Plaintiff was “required” to
call. For instance, the emails directed Plaintiff to phone numbers with area codes of (940) and
6
As Woodforest astutely points out in its motion for summary judgment, this is not the
first time Plaintiff has apparently been the target of an email scam, and not the first time she has
filed suit based upon similar emails similar to the ones at issue here. Doc 17 at PageID 63-64
(citing Driessen v United Nations, et al., Case No. 1:2012-cv-03009 (U.S. District Court,
Southern District of New York) (claiming that the United Nations and several banks failed to
electronically transmit funds after she received an e-mail stating that she should receive
$800,000 from the United Nations as a result of a scam if she sent them her banking account
information); Driessen v. Clinton, et al., Case No. 1:2012-cv- 00227 (U.S. District Court Eastern
District of Texas) (claiming that Hillary Clinton and the FBI informed her via e-mail that she
was entitled to an inheritance of $10.5 million from a relative in Nigeria, which was being
withheld until it was proven not to be terrorist or drug related); Driessen v South African Reserve
Bank, et al., Case No. 1:2012-cv-00309 (U.S. District Court, Eastern District of Texas) (claiming
that her inheritance from Nigeria now totals $30.5 million, that the South African Ministry has
ruled the funds are drug free, and that the demanded fee to transfer the money was improper)).
10
(347) -- not the (937) the area code which covers the city of Dayton, or a toll free code such as
(800) or (877). See doc. 1-4 at PageID 13-16; cf. doc. 22-5 at PageID 144 (identifying (877)
968-7962 as the telephone number for Woodforest mobile banking customer support).
Finally, the Court has reviewed and considered Plaintiff’s motion for summary judgment,
and the exhibits attached thereto.7 For the reasons described supra, Plaintiff’s motion fails to
present sufficient evidence or otherwise demonstrate that she is entitled to judgment as a matter
of law under Fed. R. Civ. P. 56. Although Plaintiff argues otherwise, the fact that the individual
who sent her an email from “woodforstbnk011@hotmail.com [sic]” claims the name “James
Lewis” -- which is the same name of the manager of Woodforest’s York Commons Boulevard
branch in Dayton, Ohio -- is insufficient to create a genuine issue of material fact, given that,
inter alia, the emails upon which she bases her entire case mistakenly spell “Woodforest” as
“woodforstbnk [sic]” in the email addresses, and “Wood Forest” and “Wood-forest” in the email
bodies. See doc. 1-4, PageID 13, 15; cf. Lewis Aff., doc. 17-1. Pro se Plaintiff has presented no
evidence, affidavits, deposition testimony, or other Rule 56 evidence to indicate that the sender
of the emails was acting as an agent of Woodforest, and has offered no evidence to refute Mr.
Lewis’ affidavit testimony that he did not control or use the woodforstbnk011@hotmail.com or
wfnb202@hotmail.com email accounts. See id. Accordingly, Plaintiff’s motion for summary
judgment is without merit, and should be denied. See Fed. R. Civ. P. 56.
V. RECOMMENDATION
Based upon the foregoing, the Court concludes that there exists no genuine issue of
material fact as to any claims set forth in Plaintiff’s complaint (doc. 1-3). As such, Woodforest
is entitled to judgment as a matter of law on all of Plaintiff’s claims. See Fed. R. Civ. P. 56.
7
Plaintiff submitted no affidavits or other Rule 56 evidence in support of her motion.
11
IT IS THEREFORE RECOMMENDED THAT:
1) Woodforest’s motion for summary judgment (doc. 17) be GRANTED;
2) Plaintiff’s motion for summary judgment (doc. 26) be DENIED; and
3) Judgment be ENTERED against Plaintiff and in favor of Woodforest as to all claims set
forth against it in Plaintiff’s complaint (doc. 1-3).
September 28, 2012
s/Michael J. Newman
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being served
with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
automatically extended to seventeen days because this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(B), (C), or (D) and may be extended further
by the Court on timely motion for an extension. Such objections shall specify the portions of the
Report & Recommendation objected to and shall be accompanied by a memorandum in support
of the objections. If the Report & Recommendation is based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party’s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).
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