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McCall v. Fedex Corp.

United States District Court, S.D. Ohio, Eastern Division

March 30, 2018

FEDEX CORPORATION, et al., Defendants.

          Deavers Magistrate Judge.



         This matter is before the Court on Plaintiff Bondary McCall's Motion for Summary Judgment. (Doc. 11). Defendant FedEx Corporation (“FedEx”)[1] has responded in opposition and Plaintiff replied in support. This matter is now ripe for review.[2] For the reasons that follow, Plaintiff's Motion is DENIED.

         I. BACKGROUND

         This 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.).

         Plaintiffs 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).

         Plaintiff Bondary McCall is seeking to recover $150, 000 from Defendant FedEx, as well as attorneys' fees and court costs. (Doc. 12, Compl. at ¶ 26).[3]


         Plaintiff 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.

         The 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”).

         In 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.


         Plaintiff 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 ...

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