United States District Court, S.D. Ohio, Eastern Division
Deavers Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Plaintiff Bondary McCall's
Motion for Summary Judgment. (Doc. 11). Defendant FedEx
Corporation (“FedEx”) has responded in opposition
and Plaintiff replied in support. This matter is now ripe for
review. For the reasons that follow,
Plaintiff's Motion is DENIED.
case arises out of an event that occurred on April 19, 2016,
in which Plaintiff's car was towed while in a parking lot
controlled by FedEx at 180 North High Street, Columbus, Ohio.
(Doc. 12, Am. Compl. at ¶¶ 12-13). Plaintiff
alleges, and Defendants confirm, that there was a contract
between FedEx and Fumble Recovery LLC (“Fumble
Recovery”) that authorized Fumble Recovery to tow any
unauthorized vehicle from the lot. (Id. at ¶
12; Doc. 53-1, Keim Aff. ¶ 4, attached to Def.'s
Response). Non-party Albert McCall parked their vehicle, a
gray Ford Edge, license plate number GRY-9445, in the lot and
went directly into the FedEx office, and Plaintiff Bondary
McCall walked in shortly after. (Id. at ¶ 13).
Both Albert and Bondary McCall used and paid for FedEx's
services to send and receive faxed documents and received
receipts of their respective transactions. (Id. at
¶¶ 13-14). While waiting for the completion of
their faxed documents, Bondary McCall noticed the vehicle
being towed outside the office by Fumble Recovery.
(Id. at ¶ 14). Both Albert and Bondary McCall
exited the building to stop the tow and showed the driver
their FedEx receipts, but their efforts were unsuccessful and
the vehicle was towed. (Id.).
returned to the store and demanded the vehicle be brought
back. (Id.). Despite alleging that the FedEx store
manager indicated that there was nothing they could do,
Brenda Keim stated that she called Fumble Recovery and the
tow truck returned Plaintiff's car to the FedEx parking
lot within 15 minutes of it being removed. (Doc. 52-1, Keim
Aff. ¶ 6). Ms. Keim stated that “[t]he decision to
tow the Plaintiff's vehicle was made by the Fumble
Recovery, LLC spotter in his sole discretion and without any
input from or consultation with myself or any other employee
at the FedEx Office facility.” (Id. at ¶
5). She further clarified that “[a]t no time on the
date of this incident did I or anyone from FedEx Office
direct or authorize Fumble Recovery, LLC to tow or remove the
Plaintiff's vehicle from the FedEx Office parking
lot.” (Id. at ¶ 9).
Bondary McCall is seeking to recover $150, 000 from Defendant
FedEx, as well as attorneys' fees and court costs. (Doc.
12, Compl. at ¶ 26).
STANDARD OF REVIEW
moves for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Summary judgment is appropriate
when “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); Berryman v. SuperValu
Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012).
The Court's purpose in considering a summary judgment
motion is not “to weigh the evidence and determine the
truth of the matter” but to “determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine
issue for trial exists if the Court finds a jury could return
a verdict, based on “sufficient evidence, ” in
favor of the nonmoving party; evidence that is “merely
colorable” or “not significantly probative,
” however, is not enough to defeat summary judgment.
Id. at 249-50.
party seeking summary judgment shoulders the initial burden
of presenting the court with law and argument in support of
its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed.R.Civ.P. 56). If this initial burden is
satisfied, the burden then shifts to the nonmoving party to
set forth specific facts showing that there is a genuine
issue for trial. See Fed. R. Civ. P. 56(e); see
also Cox v. Kentucky Dep't of Transp., 53 F.3d 146,
150 (6th Cir. 1995) (after burden shifts, nonmovant must
“produce evidence that results in a conflict of
material fact to be resolved by a jury”).
considering the factual allegations and evidence presented in
a motion for summary judgment, the Court “views factual
evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party's
favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). But self-serving affidavits alone
are not enough to create an issue of fact sufficient to
survive summary judgment. Johnson v. Washington Cty.
Career Ctr., 982 F.Supp.2d 779, 788 (S.D. Ohio 2013)
(Marbley, J.). “The mere existence of a scintilla of
evidence to support [the non-moving party's] position
will be insufficient; there must be evidence on which the
jury could reasonably find for the [non-moving party].”
Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.
1995); see also Anderson, 477 U.S. at 251.
appears to be bringing a claim for unlawful seizure of his
property against Defendant FedEx and seeking judgment on an
administrative action as a result of his car being towed from
the FedEx parking lot on April 19, 2016. Plaintiff's
Motion for Summary Judgment states:
1. On the 25th day of February, 2017 A.D.,
Plaintiff requested notarial services by Linda Brown, a
notary public for the County of Franklin, Ohio. Plaintiff
requested that Ms. Brown re-present the instrument upon the