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Jones v. Commerce Bank

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 Plaintiff then discovered that the missing funds had been fraudulently withdrawn by unknown persons, that a separate fraudulent account at Commerce had been opened in her name, and that a fraudulent check from her insurance company had been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. ...


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