Orlowski et al v. Bates et al

Filing 578

ORDER denying 431 Motion for Summary Judgment. Signed by Judge Jon Phipps McCalla on 1/25/2016. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DAMIAN ORLOWSKI, et al.,
Plaintiffs, on behalf of
themselves and all others
similarly situated,
v.
LARRY BATES, et al.,
Defendants.

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No. 2:11-cv-01396-JPM-cgc

ORDER DENYING DEFENDANT STANDLEY’S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant Cecilia “Cindy” K. Standley’s
Motion for Summary Judgment, filed July 27, 2015.
No. 431.)

(ECF

On November 17, 2015, Plaintiffs filed a Response.

(ECF No. 540.)

Defendant Standley filed a reply brief on

November 25, 2015.

(ECF No. 546.)

the motion on December 22, 2015.

The Court held a hearing on
(Min. Entry, ECF No. 560.)

For the following reasons, Defendant Standley’s Motion for
Summary Judgment is DENIED.
I.

BACKGROUND
A.

Factual Background

This case involves allegations of a complex, large-scale
scheme to defraud hundreds of people over the course of many
years.

(See 3d Am. Compl., ECF No. 375.)

The Court has

summarized the facts of this case more fully in previous Orders.
(See ECF Nos. 416, 543.)

The following facts are pertinent to

Plaintiffs’ conversion claim against Defendant Standley, which
is at issue in the instant motion.
In 1983, Defendant Larry Bates established First American
Monetary Consultants (“FAMC”) 1 to sell precious metals.

(Charles

Larry Bates (“Larry Bates”) Dep. 19:4-15, 40:2-7, ECF No. 183;
Barbara Bates Dep. 14:15-21, ECF No. 87-1.)
Tennessee and Colorado.

FAMC had offices in

(Robert Bates Dep. 56:25-57:2, ECF No.

89-1.)
Standley was employed by FAMC from August 1992 until
November 2013.
No. 376-1.)

(Standley Dep. 16:2-4, 17:16-18, 23:6-16, ECF

Between 2004 and November 2013, Standley was FAMC’s

Vice President of Administration and managed the Colorado
office.

(3d Am. Compl. ¶¶ 28, 47, ECF No. 375; Answer ¶¶ 28,

47, ECF No. 419; Standley Dep. 16:2-18, 16:25-17:5, ECF No. 3761.)

Standley was the only officer of FAMC who lived in

Colorado.

(Standley Dep. 163:11-14, ECF No. 376-1.)

As Vice

President, Standley’s responsibilities included depositing
customer checks for the purchase of precious metals.

(Larry

Bates Dep. 246:7-15, ECF No. 183; Am. Compl. ¶ 47, ECF No. 375;
Answer ¶ 47, ECF No. 419.)

Standley also transacted business

with clients, answered questions at the Colorado office
1
First American Monetary Consultants was comprised of two separate
entities: FAMC, Incorporated and FAMC PM, LLC (together “FAMC”). (See Larry
Bates Dep. 20:6-13, 44:2-9, 155:5-15, ECF No. 183.) Most precious metals
were sold through FAMC, Inc., but metals to Tennessee customers were sold
through FAMC PM, LLC to avoid state sales tax. (Larry Bates Dep. 44:10-45:8,
ECF No. 183.)

2

concerning orders, and was the only employee in Colorado with
the key to FAMC’s safe.

(Am. Compl. ¶ 47, ECF No. 375; Answer

¶ 47, ECF No. 419; Standley Dep. 43:7-16, 43:24-44:5, ECF No.
376-1.)

Additionally, from 2008 until 2013, Standley was in

charge of FAMC’s payroll.

(Standley Dep. 44:15-24, ECF No. 376-

1.)
Only Standley, Defendant Barbara Bates, and Larry Bates
were authorized to write checks and wire funds to and from FAMC
bank accounts.

(Id. 53:17-21; see also Barbara Bates Dep.

53:11-20, ECF No. 87-1; Larry Bates Dep. 92:11-17, 220:19-221:7,
ECF No. 183.)

Standley testified that she also kept a ledger on

each bank account to monitor the incoming and outgoing
transactions.

(Standley Dep. 53:25-54:6, ECF No. 376-1.)

In

addition to managing the bank accounts, Standley also managed
the credit card processing transactions at FAMC.
161:2.)

(Id. 160:24-

The court-appointed Receiver, John Ryder, testified,

and the FAMC American Express statements reflect, that Standley
was authorized to use the FAMC corporate credit card.

(Ryder

Dep. 6:4-7, 105:12-106:8, ECF No. 433-1, Butler Dep. Exs., ECF
Nos. 435-2 to 437-2.)
After the Receiver for FAMC was appointed in October 2013,
he retained Rhett Butler, a certified public accountant and
certified fraud examiner, to examine the company’s financial
records.

(Ryder Dep. 6:4-9, 11:4-14, ECF No. 433-1; see also
3

Butler Report at PageID 5843, ECF No. 426-5.)

Among other

tasks, Butler was asked to identify transactions between FAMC
and members of the Bates family as well as between FAMC and
Standley.

(Butler Dep. 11:20-12:14, 139:6-9, ECF No. 435-1;

Statement of Undisputed Facts (“SUF”) ¶ 2, ECF No. 432; Response
to SUF ¶ 2, ECF No. 541; see also Butler Report at PageID 5843,
Ex. H at PageID 5860, ECF No. 426-5.)
With respect to Standley, Butler identified $15,897.00 in
charges on FAMC’s American Express and Citi Bank credit cards
that appeared to be “potentially non-business related.”

(Butler

Dep. 23:12-18, ECF No. 435-1; Butler Report, Ex. H at PageID
5860, ECF No. 426-5; SUF ¶ 8, ECF No. 432; Response to SUF ¶ 8,
ECF No. 541.)

Butler did not have expense reports or other

supporting documents to support his findings and, therefore,
based his opinion on his background as a certified public
accountant and certified fraud experience, his experience
performing audits, and his education.

(Butler Dep. 15:12-18:10,

19:7-13, 140:10-25, 143:3-19, 144:8-18, 147:11-19, 155:7-13, ECF
No. 435-1.)

Because Butler did not have itemized receipts or

records from these purchases, however, he was unable to form an
opinion with greater certainty.

(Butler Dep. 18:11-20:6, 25,

32, 155:7-13, 158:25-159:25, ECF No. 435-1; SUF ¶ 6, ECF No.
432; Response to SUF ¶ 8, ECF No. 541.)

4

B.

Procedural Background

Plaintiffs filed the Complaint in this action on December
28, 2011.

(Compl., ECF No. 1.)

Plaintiffs then filed their

First Amended Complaint on August 13, 2012 (ECF No. 53), and
their Second Amended Complaint on March 14, 2014 (ECF No. 224).
On December 17, 2013, Plaintiffs moved for class
certification.

(ECF No. 182.)

The Court held a hearing on the

motion for class certification on April 29, 2014.
ECF No. 285.)

(Min. Entry,

The Court granted Plaintiffs’ motion for class

certification on April 30, 2014.

(ECF Nos. 289, 290.)

On May 16, 2014, Standley filed a Motion to Dismiss.
No. 300.)

(ECF

Plaintiffs responded in opposition on June 27, 2014.

(ECF No. 321.)

The Court held a hearing on the Motion to

Dismiss on July 10, 2014 (Min. Entry, ECF No. 336), and ordered
the parties to file a status report after Standley’s deposition
(ECF No. 334).

On September 29, 2014, Plaintiffs filed a status

report, requesting leave to amend their complaint to “stat[e]
the allegations of wrongdoing by Defendant Standley with more
specificity, and . . . [to] delet[e] the breach of contract
causes of action as to her.”

(ECF No. 364 at 2.) 2

On October 6,

2014, the Court granted Plaintiffs’ request for leave to amend
their complaint as to Defendant Standley and granted Standley
2

The status report filed on September 29, 2014, neglected to include a
signature page. (See ECF Nos. 364, 367.) Plaintiffs corrected this
deficiency by re-filing the status report with a signature page on October 1,
2014. (ECF No. 368.)

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leave to respond and to amend her motion to dismiss.

(ECF No.

370.)
On October 20, 2014, Plaintiffs filed their Third Amended
Complaint.

(ECF No. 375.)

Defendant filed a Supplemental

Memorandum of Facts and Law in Support of her Motion to Dismiss
on November 6, 2014.

(ECF No. 378.)

On March 31, 2015, the

Court entered an Order denying Standley’s Motion to Dismiss as
to the conversion claim and granting the Motion to Dismiss as to
all other claims.

(ECF No. 416.)

On July 27, 2015, Standley filed a Motion for Summary
Judgment as to the remaining conversion claim.

(ECF No. 431.)

Plaintiffs filed a Response in Opposition on November 17, 2015.
(ECF No. 541.)
2015.

Standley filed a reply brief on November 25,

(ECF No. 546.)

The Court held a hearing on the instant

motion on December 22, 2015.
II.

(Min. Entry, ECF No. 560.)

LEGAL STANDARD
A party is entitled to summary judgment “if the movant

shows that 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).

“A fact is ‘material’ for purposes of

summary judgment if proof of that fact would establish or refute
an essential element of the cause of action or defense.”
Bruederle v. Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir.
2012).
6

“In considering a motion for summary judgment, [the] court
construes all reasonable inferences in favor of the nonmoving
party.”

Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).

“The moving party bears the initial

burden of demonstrating the absence of any genuine issue of
material fact.”

Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th

Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)).
“Once the moving party satisfies its initial burden, the
burden shifts to the nonmoving party to set forth specific facts
showing a triable issue of material fact.”

Mosholder, 679 F.3d

at 448-49; see also Fed. R. Civ. P. 56(e); Matsushita, 475 U.S.
at 587.

“When the non-moving party fails to make a sufficient

showing of an essential element of his case on which he bears
the burden of proof, the moving parties are entitled to judgment
as a matter of law and summary judgment is proper.”

Martinez v.

Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914
(6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670 F.3d
677, 680 (6th Cir. 2012) (en banc)); see also Kalich v. AT & T
Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012).
“To show that a fact is, or is not, genuinely disputed,
both parties are required to either ‘cite[] to particular parts
of materials in the record’ or ‘show[] that the materials cited
7

do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to
support the fact.’”

Bruederle, 687 F.3d at 776 (alterations in

original) (quoting Fed. R. Civ. P. 56(c)(1)); see also
Mosholder, 679 F.3d at 448 (“To support its motion, the moving
party may show ‘that there is an absence of evidence to support
the nonmoving party’s case.’” (quoting Celotex Corp., 477 U.S.
at 325)).

“Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge[.]”

Martinez,

703 F.3d at 914 (alteration in original) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
“The court need consider only the cited materials, but it
may consider other materials in the record.”
P. 56(c)(3).

Fed. R. Civ.

“[T]he district court has no ‘duty to search the

entire record to establish that it is bereft of a genuine issue
of material fact.’”

Pharos Capital Partners, L.P. v. Deloitte &

Touche, 535 F. App’x 522, 523 (6th Cir. 2013) (per curiam)
(quoting Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.
2008)).

“‘[J]udges are not like pigs, hunting for truffles’

that might be buried in the record.”

Emerson v. Novartis Pharm.

Corp., 446 F. App’x 733, 736 (6th Cir. 2011) (alteration in
original) (quoting United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991)).
8

The decisive “question is whether ‘the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.’”

Johnson v. Memphis Light Gas & Water Div., 777

F.3d 838, 843 (6th Cir. 2015) (quoting Anderson, 477 U.S. at
251–52).

“[A] mere ‘scintilla’ of evidence in support of the

non-moving party’s position is insufficient to defeat summary
judgment; rather, the non-moving party must present evidence
upon which a reasonable jury could find in her favor.”

Tingle

v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012)
(quoting Anderson, 477 U.S. at 251).
III. ANALYSIS
A.

Admissibility of Evidence

As an initial matter, the Court finds that it may consider
the substance of the handwritten notes attached to Standley’s
affidavit (ECF No. 432-18), but that it may not consider the
handwritten ledger attached to Plaintiffs’ Response (ECF No.
541-1) for purposes of summary judgment.
“It is well established that a court may not consider
hearsay when deciding a summary judgment motion.”

Tranter v.

Orick, 460 F. App’x 513, 514 (6th Cir. 2012) (per curiam).
Bailey v. Floyd County Board of Education, the Sixth Circuit

In

explained:

9

Rule 56 requires the plaintiff to present evidence of
evidentiary quality that demonstrates the existence of
a genuine issue of material fact.
Examples of such
evidence include admissible documents or attested
testimony, such as that found in affidavits or
depositions.
The proffered evidence need not be in
admissible form, but its content must be admissible.
For instance, deposition testimony will assist a
plaintiff in surviving a motion for summary judgment,
even if the deposition itself is not admissible at
trial, provided substituted oral testimony would be
admissible and create a genuine issue of material
fact.
106 F.3d 135, 145 (6th Cir. 1997) (citations omitted).

The

Sixth Circuit has also repeatedly emphasized “that
unauthenticated documents do not meet the requirements of Rule
56(e).”

Alexander v. CareSource, 576 F.3d 551, 558-59 (6th Cir.

2009).
Plaintiffs have not properly authenticated the handwritten
ledger through an affidavit or other means.

See United States

v. Rhodes, 788 F. Supp. 339, 342 (E.D. Mich. 1992) (finding that
“there is no affidavit authenticating the [handwritten]
notations, therefore, the notations do not come under the
business record exception to the hearsay rule contained in Fed.
R. Evid. 803(6)”).

Accordingly, the Court finds that it may not

consider the handwritten ledger for purposes of this motion.
On the other hand, Standley has incorporated her
handwritten notes into her sworn affidavit.
¶ 5, ECF No. 432-18.)

(See Standley Aff.

She has further sworn under oath that to

the best of her recollection, none of the expenses she reviewed
10

from the 2007-2013 American Express statements were personal in
nature.

(Id. ¶ 7.)

To the extent that the substance of these

notes is based on Standley’s personal knowledge, and she could
testify to these facts at trial, the Court will consider the
notes.

Standley has put forth no basis for the admissibility of

the document itself, however, and accordingly, the Court makes
no finding on the admissibility of this document for trial
purposes.

Nevertheless, the information contained in Standley’s

handwritten notes merely supports the statements made in
Standley’s affidavit and has minimal independent effect.
B.

Summary Judgment

Defendant argues that she is entitled to summary judgment
because she can be held liable only for her own tortious conduct
and not her employers’ and because there is no evidence that she
appropriated customer monies to her own use and benefit.
No. 431-1 at 2-5.)

(ECF

Defendant further argues that she did not

have “control” over FAMC funds to show the exercise of
“dominion” for the purposes of common-law conversion.
5-7.)

(Id. at

Defendant also argues that Butler’s opinion that certain

charges were “potentially non-business related” is not
admissible under Rule 702, and moreover, that her (Standley’s)
affidavit and explanation of the charges negate an essential
element of Plaintiffs’ case.

(Id. at 7-10.)

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Plaintiffs identify numerous facts that they believe
preclude summary judgment.

(ECF No. 540 at 3-4.)

Plaintiffs

further argue that Standley’s affidavit does not negate Butler’s
testimony that the charges were potentially non-business
related.

(Id. at 7.)

“A conversion, in the sense of the law of trover, is the
appropriation of the thing to the party’s own use and benefit,
by the exercise of dominion over it, in defiance of plaintiff’s
right.”

Mammoth Cave Prod. Credit Ass’n v. Oldham, 569 S.W.2d

833, 836 (Tenn. Ct. App. 1977) (quoting Barger v. Webb, 391
S.W.2d 664, 665 (Tenn. 1965)).

“To be liable for conversion,

the defendant ‘need only have an intent to exercise dominion and
control over the property that is in fact inconsistent with the
plaintiff’s rights, and do so.’”

Hanna v. Sheflin, 275 S.W.3d

423, 427 (Tenn. Ct. App. 2008) (quoting Mammoth, 569 S.W.2d at
836).
Property may be converted in three ways. First, a
person may dispossess another of tangible personalty.
Second, a person may dispossess another of tangible
property through the active use of an agent. Third,
under certain circumstances, a person who played no
direct part in dispossessing another of property, may
nevertheless be liable for conversion for “receiving a
chattel.”
PNC Multifamily Capital Institutional Fund XXVI Ltd. P’ship v.
Bluff City Cmty. Dev. Corp., 387 S.W.3d 525, 553 (Tenn. Ct. App.
2012) (citations omitted).

In general, conversion involves

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tangible property, but “[m]isappropriated funds placed in the
custody of another for a definite purpose may be subject to a
suit for conversion.”

Id. at 553-54 (quoting 90 C.J.S. Trover

and Conversion § 16 (2012)).

Specifically, “where the defendant

is under an obligation to deliver specific money to the
plaintiff and fails or refuses to do so, or when wrongful
possession of it has been obtained by the defendant, there is a
conversion for which trover lies.”

Id. at 553 (quoting C.J.S.

Trover and Conversion § 16 (2012)).
1.

Standley’s Personal Liability and Dominion Over
Customer Funds

The Court agrees with Defendant Standley that she can be
held responsible only for her own tortious conduct.
Restatement (Third) of Agency § 7.01.

See

Accordingly, she may only

be liable to the extent that she exercised dominion over
customer funds and appropriated them for her own benefit, rather
than merely for the benefit of FAMC.
The Court disagrees, however, with Standley’s contention
that she did not have dominion or control over customer funds.
A review of the record reveals that Standley was a signatory on
multiple FAMC bank accounts and was authorized to use an FAMC
credit card.

There is little, if any, testimony regarding the

supervision of Standley’s credit card use.

Because Standley

submits no evidence, identifies no facts in her Statement of

13

Undisputed Facts, and fails to cite to facts in the record in
her memorandum in support of her contention that she lacked
“dominion,” Defendant fails to satisfy her burden to demonstrate
the absence of a dispute of material fact on this point. 3
2.

Appropriation for Personal Benefit

Moreover, the Court finds that a dispute of material fact
exists as to whether Standley appropriated the funds for her own
benefit.

First, Defendant argues that Butler’s testimony and

report, which Plaintiffs rely on to contradict Standley’s
affidavit and create a dispute of material fact, are
inadmissible under Rule 702 of the Federal Rules of Evidence.
The Court disagrees with Defendant and finds that Mr. Butler’s
report and testimony are admissible under Rule 702.
Rule 702 provides that an expert opinion is admissible if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to

3
Defendant cites to Kentuckiana Healthcare, Inc. v. Fourth Street
Solutions, LLC, 517 F.3d 446 (7th Cir. 2008), in support of her contention
that signatory authority is not equivalent to “dominion” for the purposes of
common law conversion. (See ECF No. 431-1 at 5-6.) The Court first notes
that this is a Seventh Circuit case that applies Indiana law and therefore
has no binding effect on this Court. Nevertheless, Kentuckiana is easily
distinguishable from the instant matter. In that case, the signatory agents
merely failed to reimburse the plaintiff for funds paid to their employer.
See 517 F.3d at 449. In the instant matter, Plaintiffs allege that Standley
not only maintained their property in FAMC accounts, but also used that money
for her personal expenses.
Moreover, if Standley was, in fact, able to charge personal expenses to
FAMC’s corporate credit card without oversight or repercussion, she almost
certainly had “dominion” over the customer funds. Thus, had Defendant
properly put this element of conversion in issue, the same proof that raises
a dispute of material fact as to whether Standley’s charges were business or
personal, see infra Part III.B.2, would also raise a dispute as to whether
Standley had dominion over the customer funds.

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understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c)
the
testimony
of
the
product
of
reliable
principles and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
“[T]he fact that an expert ‘does not use absolute terms but
rather couches the opinions in terms of “can” or “may” does not
render it speculative or unreliable.’”

In re Heparin Prods.

Liab. Litig., 803 F. Supp. 2d 712, 745 (N.D. Ohio 2011) (quoting
In re Trasylol Prods. Liab. Litig., No. 08-MD-01928, 2010 WL
1489730, at *8 (S.D. Fla. Mar. 19, 2010)).

“Experts are

permitted a wide latitude in their opinions, including those not
based on firsthand knowledge, so long as ‘the expert’s opinion
[has] a reliable basis in the knowledge and experience of the
discipline.’”
(6th Cir. 2000)

Jahn v. Equine Servs., PSC, 233 F.3d 382, 388
(alteration in original) (quoting Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993)).

“Daubert

and Rule 702 require only that the expert testimony be derived
from inferences based on a scientific method and that those
inferences be derived from the facts of the case at hand, not
that they know answers to all the questions a case presents . .
. .”

Jahn, 233 F.3d at 390 (citation omitted).

15

Butler testified that his opinion was based on his
education, knowledge, and experience as a certified public
accountant and certified fraud examiner.

(Butler Dep. 15:12-

18:10, 140:10-25, 143:3-19, 147:11-19, ECF No. 435-1.)

He

further explained that he looked at all of FAMC’s transactions
in aggregate and evaluated which purchases were typically made
by writing checks as opposed to using a credit card.
13:8-14:15, 102:18-104:9.)

(Id. at

Although Butler was limited by the

lack of invoices and receipts, his opinions were based on the
documentation available to him and on a methodology derived from
his technical knowledge and experience as a certified public
accountant and certified fraud examiner.

Accordingly, the Court

finds that Butler’s opinions are admissible under Rule 702.

The

lack of information available to Butler in making these
determinations is a matter for the jury to weigh in evaluating
his testimony.
Second, Defendant argues that, even if admissible, Butler’s
testimony is insufficient to raise a dispute of material fact as
to whether the charges by Standley were for business or personal
expenses.

The Court disagrees.

In her affidavit and explanation of charges, Standley
states under oath that each charge identified by Mr. Butler as
potentially non-business related was, in fact, business related.
(See ECF No. 432-18.)

Standley’s statements, however, provide
16

minimal detail as to the specific circumstances of each charge.
(See id.)

She merely identifies the category of product that

each vendor sells and asserts that the charge was on behalf of
FAMC.

(See id.)

For example, Standley asserts that charges from USPS and
other vendors represent shipping and/or postage charges by FAMC.
(Standley Aff. ¶ 9, ECF No. 432-18.)

Similarly, she asserts

that charges from restaurants including Applebee’s and Cracker
Barrel represent company meals for office staff and/or clients.
(Id. ¶ 25.)

Standley fails, however, to provide additional

detail as to the content or recipient of the mailed packages or
the employees or clients who attended these meals.
In response to Standley’s affidavit, Plaintiffs refer to
Butler’s report and deposition testimony, in which he opines
that certain charges made by Standley were potentially nonbusiness related.

(See ECF No. 540 at 3-4, 7-8.)

Butler’s

opinion that Standley’s charges to FAMC’s credit card were
potentially non-business related is sufficient to refute
Standley’s largely skeletal assertions that the charges were for
business purposes.

See Arendale v. City of Memphis, 519 F.3d

587, 605 (6th Cir. 2008) (discounting plaintiff’s conclusory
assertions, supported only by his own conclusory testimony).
Thus, Plaintiffs sufficiently raise a dispute of material fact
to preclude summary judgment.
17

The Court further notes that Standley, as the credit card
user and manager of the Colorado office, would have had the
opportunity to obtain receipts from and maintain records of each
transaction.

Although there is no evidence that Standley was

under an obligation to do so at the time of the credit card
transactions, allowing her to benefit from her failure to
maintain detailed records would perversely reward doublydishonest individuals who make personal charges on a company
credit card and then neglect to keep receipts.
The question of whether these charges by Standley were, in
fact, for business or personal expenses should be determined by
a jury.
IV.

Accordingly, summary judgment is inappropriate.

CONCLUSION
For the foregoing reasons, Defendant Standley’s Motion for

Summary Judgment is DENIED.
IT IS SO ORDERED this the 25th of January, 2016.

/s/ Jon P. McCalla
JON P. McCALLA
U.S. DISTRICT COURT JUDGE

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