Bartolowits v. Wells Fargo Bank NA
MEMORANDUM OPINION AND ORDER: Wells Fargo's 64 second motion for summary judgment is granted, and this case is dismissed with prejudice by judgment filed today. (Ordered by Judge Sidney A Fitzwater on 1/3/2017) (sss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WELLS FARGO BANK, N.A., AS
TRUSTEE FOR OPTION ONE
MORTGAGE LOAN TRUST
2007-FXD1, AS TRUSTEE OF CCC,
§ Civil Action No. 3:13-CV-4666-D
In this action arising from an attempted foreclosure, defendant Wells Fargo Bank,
N.A. (“Wells Fargo”)1 moves for a second time for summary judgment on plaintiff Brian
Bartolowits’ (“Bartolowits’”) claim for negligent hiring and retention of Anthony Forsberg
(“Forsberg”).2 Bartolowits has not responded to the motion, and it is ripe for decision.
Concluding that a reasonable jury could not find that Wells Fargo employed Forsberg, the
court grants the motion and dismisses this action by judgment filed today.
Wells Fargo is the defendant in its capacity as Trustee for Option One Mortgage
Loan Trust 2007-FXD1, as Trustee of CCC. For ease of reference, the court will refer to
Wells Fargo as the defendant without differentiating between its various roles.
The court granted Wells Fargo leave to file a second motion for summary judgment.
Bartolowits v. Wells Fargo Bank, N.A., 2016 WL 6650858, at *2 (N.D. Tex. Nov. 10, 2016)
The relevant background facts are set out in the court’s first memorandum opinion and
order in this case. See Bartolowits v. Wells Fargo Bank, N.A., 2016 WL 1436430, at *1
(N.D. Tex. Apr. 11, 2016) (Fitzwater, J.) (“Bartolowits I”). Bartolowits’ amended complaint
alleges that Wells Fargo negligently hired and retained employees “by failing to implement
proper quality control standards, supervision, or protocols that would reasonably insure that
[Bartolowits’] loan was not improperly foreclosed on.” Am. Compl. ¶ 25. In Bartolowits’
response to Wells Fargo’s first motion for summary judgment, he asserted that this claim
applied to the negligent hiring, retention, and supervision of Phillip Spann (“Spann”) and
In Bartolowits I the court granted summary judgment for Wells Fargo on all of
Bartolowits’ claims except for his claim for negligent hiring and retention of Forsberg.
Bartolowits I, 2016 WL 1436430, at *1. Relevant here, the court held that a reasonable jury
could not find in favor of Bartolowits on a theory of negligent hiring and retention of Spann
because the record clearly showed that Spann was an employee of Specialized Loan
Servicing (“SLS”), the company that Wells Fargo hired to service Bartolowits’ loan, not an
employee of Wells Fargo. Id. at *7-8. Thereafter, the court denied Bartolowits’ motion to
dismiss the remaining claim without prejudice, and granted Wells Fargo leave to file a
second motion for summary judgment. Bartolowits v. Wells Fargo Bank, N.A., 2016 WL
6650858, at *2 (N.D. Tex. Nov. 10, 2016) (Fitzwater, J.).
Wells Fargo then filed the instant second motion for summary judgment, contending
that Bartolowits has no evidence to support the elements of his claim for negligent hiring and
retention, or, in the alternative, that the claim is barred by both the statute of limitations and
the judicial proceedings privilege. Bartolowits has not responded to the motion.
When the summary judgment movant will not have the burden of proof on a claim at
trial, it can obtain summary judgment by pointing the court to the absence of evidence on any
essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the movant does so, the nonmovant must go beyond his pleadings and
designate specific facts demonstrating that there is a genuine issue for trial. See id. at 324;
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An
issue is genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s
failure to produce proof as to any essential element renders all other facts immaterial. See
TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater,
J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little,
37 F.3d at 1076.
Because Wells Fargo has pointed to the absence of evidence that Forsberg was an
employee of Wells Fargo, the court first considers whether Bartolowits has submitted
sufficient evidence to enable a reasonable jury to find that he was.
A negligence claim requires proof of a legal duty owed by the defendant to the
plaintiff, a breach of that duty, and damages proximately caused by that breach. Lee Lewis
Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001) (citing Praesel v. Johnson, 967
S.W.2d 391, 394 (Tex. 1998)). “An employer can be liable for negligence if its failure to use
due care in hiring, supervising, or retaining an employee creates an unreasonable risk of harm
to others.” Clark v. PFPP Ltd. P’ship, 455 S.W.3d 283, 287 (Tex. App. 2015, no pet.)
(citations omitted). Although the Supreme Court of Texas “has yet to rule definitively on the
‘existence, elements, and scope of [causes of action for negligent retention and supervision]
and related torts such as negligent training and hiring,’” id. (alteration in original) (quoting
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n. 27 (Tex. 2010)), “it has indicated that
to recover on these theories, a plaintiff must show more than just negligent hiring practices,”
id. (citing Wansey v. Hole, 379 S.W.3d 246, 247 (Tex. 2012) (per curiam)). “The plaintiff
must also show [he] ‘suffer[ed] some damages from the foreseeable misconduct of an
employee’ who was hired, supervised or retained pursuant to the defendant’s negligent
practices.” Id. (quoting Wansey, 379 S.W.3d at 247). This court also held in Bartolowits I
that the plaintiff must submit some evidence that the defendant actually employed the
individual in question. See Bartolowits I, 2016 WL 1436430, at *7-8 (granting summary
judgment where record clearly showed that defendant did not employ individual who
plaintiff alleged was negligently hired and retained).
In a declaration, Forsberg avers that he is not an employee of Wells Fargo, but is
instead an employee of SLS. D. App. 158 (“I was not, and have never been, an employee
of Wells Fargo.”).3 As noted, Bartolowits has not responded to Wells Fargo’s motion.
Although his failure to respond does not permit the court to enter a “default” summary
judgment in Wells Fargo’s favor, see, e.g., Tutton v. Garland Independent School District,
733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.), “[a] summary judgment
nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings,
which do not constitute summary judgment evidence,” Bookman v. Shubzda, 945 F. Supp.
999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Associates,
929 F.2d 160, 165 (5th Cir. 1991)). Moreover,
[i]f a party fails . . . to properly address another party’s assertion
of fact as required by Rule 56(c), the court may . . . (2) consider
the fact undisputed for purposes of the motion [and] (3) grant
summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the movant is entitled to it[.]
Fed. R. Civ. P. 56(e)(2), (3). Accordingly, because Bartolowits has not submitted any
evidence to refute Forsberg’s declaration, the summary judgment record would only enable
a reasonable jury to find that Forsberg is an employee of SLS, not Wells Fargo. The court
therefore holds that Wells Fargo is entitled to summary judgment on the basis that Wells
Fargo cannot be held liable on a claim for negligent hiring and retention based on the conduct
Forsberg’s declaration was not in the record when the court decided Bartolowits I.
of someone who was not its employee. See Bartolowits I, 2016 WL 1436430, at *7-8.
For the reasons explained, Wells Fargo’s second motion for summary judgment is
granted, and this case is dismissed with prejudice by judgment filed today.
January 3, 2017.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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