Bell v. Sammy Bereznac & Co

Filing 20

REPORT AND RECOMMENDATION: Taking the evidence in the light most favorable to the plaintiff, the undersigned finds that plaintiff has failed to state any claim upon which relief can be granted and to the extent that the trustee/real party in inte rest has indicated that he has no opposition to the Defendant's Motion to Dismiss the undersigned recommends that the Motion to Dismiss (Docket No.11) be GRANTED. Signed by Magistrate Judge Jeffery S. Frensley on 6/20/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

OWEN BELL
Plaintiff,
v.
SAMMY BEREZNAC & CO
Defendant.

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CASE NO. 3:17-cv-640
Chief Judge Crenshaw
Magistrate Judge Frensley

REPORT AND RECOMMENDATION
Pending before the Court is a Motion to Dismiss filed by the Defendant in this matter.
Docket No. 11. The bankruptcy trustee, who was substituted as the plaintiff/ real party in
interest has filed a response to the Motion. Docket No. 19. For the reasons stated herein, the
undersigned recommends that the Defendant’s Motion be GRANTED.
This action was originally filed by the pro se plaintiff asserting causes of action arising
out of the testimony of the Defendant in a previous lawsuit in which pro se plaintiff was a
defendant. Specifically, plaintiff’s complaint alleges in its entirety the following causes of action:
1) conspiracy; 2) intentional misrepresentations; 3) fraud; 4) defamation; 5) malicious
prosecution; and 6) multiple intentional falsifications made during the March 2014 trial, Case
No. 3:11-cv-0674 Docket No.1. The complaint states no factual allegations or further detail
regarding the causes of action alleged. Id. While the complaint identifies the defendant as
Sammy Bereznac “and Co” it does not identify what if any entity “Co” references. Defendant
Sammy Bereznac indicates he is an individual and not a company/corporate entity. Docket No.
11.
In the underlying action, defendant provided expert testimony. Docket No. 12, p. 2. A
verdict was rendered by the jury against the plaintiff in the prior lawsuit. Id. Plaintiff filed this

action on March 24, 2017. Docket No. 1. While the complaint contains no factual allegations in
support of the causes of action it does reference conduct during the trial in the underlying matter.
The pro se plaintiff filed a bankruptcy petition on April 26, 2016 in the United States Bankruptcy
Court for the Middle District of Tennessee in Case No. 3:16-bk-02966. A bankruptcy trustee was
appointed in that matter who subsequently filed a motion to substitute the bankruptcy trustee as
the Plaintiff. Docket No. 13. The bankruptcy trustee was substituted as the plaintiff/real party in
interest in the current action. Docket No.19.
The Defendant alleges that none of the causes of action asserted state any claim upon
which relief can be granted and that the action should be dismissed pursuant to Federal Rules of
Civil Procedure 12(b)(6). Docket No. 11. Specifically, Defendant asserts that the claims for
defamation and malicious prosecution are barred by the one year statute of limitations insofar as
the causes of action arose in the course of the March 2014 trial of the prior lawsuit and the
complaint was filed on March 24, 2017. Docket No. 12, p. 4. Defendant further asserts that
plaintiff’s claim of fraud fails as it is not stated with sufficient particularity. Id. The Defendant
argues that the causes of action based upon intentional misrepresentations, fraud, defamation and
“multiple intentional falsifications” allegedly made by the Defendant the 2014 trial are barred by
the absolute litigation/testimonial privilege. Id. at pp. 4-5. Defendant asserts that the “malicious
prosecution” claim fails insofar as the plaintiff cannot establish the essential elements of the
claim because defendant has not instituted any judicial proceedings against the plaintiff and the
prior lawsuit was not terminated in plaintiff’s favor. Id. at pp. 5-6. Finally, defendant asserts that
the cause of action for “conspiracy” is unsupported by any material facts or pled with any degree
of specificity sufficient to support such a claim. Id. at pp. 6-7.
The Trustee has filed a response to the Defendant’s Motion stating that he has

investigated the matter, reviewed the motion to dismiss and “finds no basis to oppose the
motion.” Docket No. 19.
Taking the evidence in the light most favorable to the plaintiff, the undersigned finds that
plaintiff has failed to state any claim upon which relief can be granted and to the extent that the
trustee/real party in interest has indicated that he has no opposition to the Defendant’s Motion to
Dismiss the undersigned recommends that the Motion to Dismiss (Docket No.11) be
GRANTED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has ten (10) days
from receipt of this Report and Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said objections shall have ten (10)
days from receipt of any objections filed in this Report in which to file any response to said
objections. Failure to file specific objections within ten (10) days of receipt of this Report and
Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v.
Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed. 2d 435 (1985), reh’g denied, 474 U.S. 1111 (1986).

JEFFERY S. FRENSLEY
U. S. Magistrate Judge