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Jones v. Commerce Bank

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


March 6, 2007

KEISHA JONES, PLAINTIFF,
v.
COMMERCE BANK, N.A., JOHN DOES 1-50, AND XYZ CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: Harold Baer, Jr., District Judge

OPINION & ORDER

Plaintiff pro se Keisha Jones ("Plaintiff" or "Jones") brings this motion for reconsideration of my September 15, 2006 Opinion granting summary judgment to defendant Commerce Bank, N.A. ("Defendant" or "Commerce") on Plaintiff's remaining claims.

For the reasons articulated below, Plaintiff's motion for reconsideration is denied.*fn1

I.BACKGROUND

A. Factual Background of the Case

The following facts are taken from prior opinions unless otherwise noted. See Jones v. Commerce Bancorp Inc., 2006 U.S. Dist. LEXIS 32067 (S.D.N.Y. May 23, 2006) ("Commerce I") (granting Defendant's motion to dismiss several claims); Jones v. Commerce Bank, N.A., 2006 U.S. Dist. LEXIS 65630 (S.D.N.Y. September 15, 2006) ("Commerce II") (granting summary judgment to Defendant on remaining claims).

Plaintiff pro se Keisha Jones held a business checking account with Defendant Commerce Bank. On May 22, 2005, Plaintiff discovered that $1,860.00 was missing from that account. Commerce I, 2006 U.S. Dist. LEXIS 32067, at *2-3. Plaintiff then discovered that the missing funds had been fraudulently withdrawn by unknown persons, that a separate fraudulent account at Commerce had been opened in her name, and that a fraudulent check from her insurance company had been deposited to that fraudulent account. Id. On June 9, 2005, after a brief investigation, Commerce credited all of the missing $1,860.00 back to Plaintiff's original account. However, Plaintiff did not learn of this credit until July of 2005. Id.

Plaintiff subsequently brought the instant action in New York State Supreme Court for negligence, breach of fiduciary duty, intentional and negligent infliction of emotional distress, commercial bad faith, consumer fraud, and breach of contract against Defendant Commerce Bank. Commerce II, 2006 U.S. Dist. LEXIS 65630, at *1. Defendant Commerce removed the action to this Court pursuant to 28 U.S.C. § 1441.

On May 23, 2006, I granted Defendant's motion to dismiss Plaintiff's claims of negligent and intentional infliction of emotional distress, commercial bad faith, and consumer fraud, but denied Defendant's motion to dismiss Plaintiff's claims of negligence, breach of fiduciary duty, and breach of contract. See generally Commerce I, 2006 U.S. Dist. LEXIS 32067. At the completion of discovery, Defendant moved for summary judgment on the remainder of Plaintiff's claims. On September 15, 2006, I granted Defendant's motion for summary judgment on all extant claims against Defendant Commerce Bank.*fn2 Commerce II, 2006 U.S. Dist. LEXIS 65630 at *5-7.

B. Defendant's Motion for Summary Judgment

I granted summary judgment to Defendant Commerce on Plaintiff's claims for negligence, breach of fiduciary duty, and breach of contract because Plaintiff presented no evidence of Commerce's breach of its duty of care. Plaintiff presented no evidence linking Commerce to the actual incident of identity theft that led to the fraudulent activities. Commerce II, 2006 U.S. Dist. LEXIS 65630 at *3 (noting that the actual cause of Plaintiff's injury was the identity theft perpetrated by unknown individuals). Additionally, Plaintiff presented no evidence of damages. I noted that even if Plaintiff had shown Commerce was negligent in allowing the unauthorized withdrawals, Commerce replaced Plaintiff's missing funds within weeks. Plaintiff had not shown any compensable injury stemming from the short period of time that her funds were unavailable. Id. I thus granted summary judgment on the above-mentioned claims.*fn3

C. Plaintiff's Motion to Reconsider

On September 29, 2006, Plaintiff submitted her instant motion for reconsideration of the grant of summary judgment. Plaintiff's motion for reconsideration raises several issues relating to her original negligence claims.

Plaintiff reiterates that Commerce had a duty to protect her personal and account information, and that Commerce breached that duty to her. Keisha Jones, Affidavit in Support of Plaintiff's Motion for Reconsideration ("Pl. Aff."), September 29, 2006, at 2, citing Daly v. Metropolitan Life Ins. Co., 782 N.Y.S. 2d 530 (N.Y. Sup. Ct. 2004).*fn4

Plaintiff avers, in essence, that Commerce must have committed a negligent breach of duty because the personal information used to fraudulently obtain a check from Plaintiff's insurance company was only possessed by the Defendant and no other institutions or entities. Pl. Aff. at 5-7.*fn5 Plaintiff also claims that Commerce's deficient handling of the initial investigation was a breach of their duty. As a result, Plaintiff could not timely address other issues stemming from the identity theft. For example, Plaintiff was delayed in returning to the IRS an IRS refund check fraudulently obtained in her name. Id. at 3-6.*fn6

Plaintiff additionally reiterates that she suffered damages. Plaintiff states that the conduct of her business was disrupted by the identity theft, causing her to lose significant earning potential. Pl. Aff. at 6.*fn7 Plaintiff also seeks to introduce new evidence as proof of her damages. Plaintiff offers documents proving the extent of her lost income which were not available to resist the motion for summary judgment. Id. at 6-7. Plaintiff also attaches invoices as proof of psychological counseling she received as a result of the identity theft. Id.

Plaintiff also alleges that Defendant engaged in non-responsive and dilatory discovery tactics, and thus she has been unable to attain access to all the information and documents due to her. Pl. Aff. at 3.*fn8

II. STANDARD OF REVIEW

Plaintiff pro se styles her motion as a "motion for reconsideration" under Fed. R. Civ. P. 60(b), which provides for relief from a judgment or order for "Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc."*fn9 See Fed. R. Civ. P. 60(b). The standard of review for a determination under Rule 60(b) is abuse of discretion. United States v. Bank of New York, 14 F.3d, 759 (2d Cir. 1994). "Relief under this Rule is 'generally granted only upon a showing of exceptional circumstances."

Kearsey v. Williams, 2004 U.S. Dist. LEXIS 18727, at *6 (S.D.N.Y. 2004) (citations omitted).

Plaintiff's motion might concurrently be considered a motion for reconsideration under Local Civil Rule 6.3. This, it would seem, is the more appropriate motion, and I will proceed on the assumption that this was the intention of the pro se Plaintiff. To succeed on a motion for reconsideration, a party "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Davis v. The Gap, Inc., 186 F.R.D. 322, 324 (S.D.N.Y. 1999). A court will not generally reconsider issues properly disposed of previously. Id. at 324.

Further, a pro se litigant is entitled to have her submissions to the court construed liberally. See Kearsey v. Williams, 2004 U.S. Dist. LEXIS 18727, at *3 (S.D.N.Y. 2004) ("this Court holds papers submitted by [pro se Plaintiff] to a less stringent standard than those drafted by attorneys"), citing Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 762 (2d Cir. 1990). This liberality extends to the Court's interpretation and application of procedural requirements. See Stewart v. U.S. Postal Service, 649 F.Supp. 1531, 1535 (S.D.N.Y. 1986), quoting Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1112 (2d Cir.1977) ("A layman representing himself ... is entitled to a certain liberality with respect to proceduralrequirements."). Indeed, "the requisite showing [for granting a Rule 60(b) motion] seems less stringent for pro se litigants." Kearsey v. Williams, 2004 U.S. Dist. LEXIS 18727, at *6.

I will accordingly consider and address the merits of Plaintiff's arguments, to the extent they merit reconsideration of my previous opinion.

III. DISCUSSION

A. Reconsideration of Negligence Claim

Plaintiff reasserts that Commerce had a duty to protect her personal and account information, and was negligent in performing that duty. Pl. Aff. at 2, citing Daly v. Metropolitan Life Ins. Co., 4 Misc. 3d 887, 782 N.Y.S.2d 530 (N.Y. Sup. Ct. 2004). On Defendant's motion for summary judgment, I acknowledged that Commerce may have owed Plaintiff a duty. See Commerce II, 2006 U.S. Dist. LEXIS 65630, at *6 ("failure to safeguard a client's personal identifying information may give rise to a claim for breach of fiduciary duty."), citing Daly v. Metropolitan Life Ins. Co., 782 N.Y.S.2d 530, 535.

However, even assuming arguendo that Commerce owed Plaintiff a duty, Plaintiff must show evidence of causation -- i.e., that Commerce's breach of that duty proximately caused Plaintiff's injuries. See Commerce II at *6, *9 ("[P]laintiff has adduced no evidence linking Commerce to the theft of her personal information.."; plaintiff presented "no evidence that Commerce proximately caused any compensable injury to her."). "It was the theft of Plaintiff's identity by unidentified individuals, in an unknown manner, that caused Plaintiff's injuries, not four unauthorized withdrawals that were soon rectified." Id. at *7. I granted summary judgment to Defendant because Plaintiff could not, on the evidence presented, establish the element of causation.

On reconsideration, construing her arguments liberally, Plaintiff essentially attempts to compensate for her lack of evidence of causation by arguing res ipsa loquitor. "Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant's relation to it." Kambat v. St. Francis Hosp., 678 N.E.2d 456, 458 (N.Y. 1997). Three conditions must be met to establish a prima facie case of res ipsa loquitor. "First, the event must be of a kind that ordinarily does not occur in the absence of someone's negligence." Kambat at 458. "[S]econd, it must be caused by an agency or instrumentality within the exclusive control of the defendant."

Id. "[T]hird, it must not have been due to any voluntary action or contribution on the part of the plaintiff." Id.

Plaintiff avers, in essence, that Commerce must have committed a negligent breach of duty because the combination of personal information used to fraudulently attain a check from Plaintiff's insurance company was only possessed by Commerce, and no other institutions or entities. However, it cannot be said that the identity theft here is an event that "ordinarily does not occur in the absence of someone's negligence," just as it cannot be generally said that criminal activity requires some prior negligence to succeed. The thieves might well have stolen Plaintiff's information without any negligence on the part of Commerce. Additionally, it does not appear that the information that allegedly establishes res ipsa loquitor was in the exclusive control of Commerce.*fn10 In short, the facts of this case do not establish a viable argument for res ipsa loquitor sufficient to overcome the lack of evidence of causation on the part of Commerce.

Plaintiff further reasserts that Commerce separately breached its duty to her by its inadequate investigation of her identity theft and negligent keeping or manipulation of her account records. Pl. Aff. at 4-6. Again, however, Plaintiff does not provide evidence that any alleged breach proximately caused her injuries. Commerce II, 2006 U.S. Dist. LEXIS 65630 at *7 ("Commerce's connection to [Plaintiff's injuries] is wholly speculative.") Plaintiff argument here does not warrant reconsideration of my summary judgment opinion.

Lastly, Plaintiff brings new evidence of her damages. Pl. Aff. at 6. In granting summary judgment, this Court noted that Plaintiff claimed that for a period, "she ultimately became unable to run her business.." Commerce II, 2006 U.S. Dist. LEXIS 65630, at *7. Plaintiff thus submits new evidence of her lost income from the disruption of her business, as well as her subsequent psychological counseling.*fn11 However, without additional proof of causation on the part of Commerce, Plaintiff's alleged resultant damages are irrelevant.

In short, Plaintiff has not provided grounds that warrant reconsideration of my grant of summary judgment to Commerce.

B. Discovery Issues

Additionally, Plaintiff realleges that Defendant engaged in non-responsive and dilatory discovery tactics, and was thus denied all the information and documents properly due to her.

Specifically, Plaintiff alleges that Commerce did not timely answer interrogatories and produce requested documents for a July 20, 2006 scheduled deposition, but rather delivered these items "mere hours" beforehand. Pl. Aff. at 3. Plaintiff claims that Commerce's actions prevented her from taking an effective deposition, and, due to time and monetary constraints, she was never able to take another deposition. Id. The result, according to Plaintiff, is that, "[d]iscovery remains incomplete." Id.

Plaintiff's allegations have already been addressed and disposed of by Magistrate Judge Frank Maas.*fn12 Construed liberally, Plaintiff's allegations might amount to a motion for reconsideration of Magistrate Maas' discovery orders pursuant to Fed. R. Civ. P. 72(a). However, particularly since Plaintiff failed, until now, to raise any objections, Plaintiff would carry a heavy burden to succeed on such a motion.*fn13 "[I]n resolving discovery disputes, the Magistrate is afforded broad discretion, which will be overruled only if abused.'" Grossman v. Schwartz, 1990 U.S. Dist. LEXIS 12877, at *3 (S.D.N.Y. 1990). "Such broad discretion is especially appropriate where the Magistrate has made numerous discovery rulings over a substantial period of time, attempting to balance each party's need for the information sought against the burden on the other party in producing it." Id. at *3-4.

Judge Maas previously considered and ruled upon all the discovery issues Plaintiff raises. Plaintiff brings nothing new today that supports overturning Judge Maas's determinations, nor that warrants reconsideration of my grant of summary judgment.

IV. CONCLUSION

For the foregoing reasons, Plaintiff's motion to reconsider this Court's grant of summary judgment is DENIED.

The Clerk of the Court is directed to close this matter and remove this case from my docket.

SO ORDERED.

March 6, 2007


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