United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on Defendant FedEx Office &
Print Services, Inc.'s (“FedEx”) Motion for
Summary Judgment. (Doc. 53). Plaintiff Bondary McCall has not
technically responded in opposition, but has filed a Notice
and two letters to the Court. (Docs. 54, 57, and 58).
Defendant has replied and this matter is now ripe for review.
Bondary McCall initiated this case in the Franklin County
Court of Common Pleas on April 3, 2017. (See Doc.
2). Defendants removed the case to this Court on May 4, 2017.
(Doc. 1). In his Amended Complaint, Plaintiff alleges that on
April 19, 2016, he parked in the FedEx parking lot and
entered FedEx to send a fax. (Doc. 12, Am. Compl. ¶
13-14). While in the FedEx store, Plaintiff observed his
vehicle being towed by a Fumble Recovery tow truck. Plaintiff
ran out of the store and confronted the tow truck driver.
Plaintiff provided a receipt from the store. The tow truck
driver ultimately left with Plaintiff's vehicle.
Plaintiff then returned to the FedEx store and spoke with the
store manager, Brenda Keim, and demanded that his car be
returned. (Id. at 14). Plaintiff's car was then
returned to the FedEx parking lot within fifteen minutes.
(Docs. 53-1 and 53-3). Defendant asserts that the decision to
tow Plaintiff's car was made by Fumble Recovery's
spotter, not by any employee of FedEx. Rather, it was FedEx
employee Brenda Keim who assisted in getting Plaintiff's
car returned so quickly. Plaintiff initiated this lawsuit
seeking damages based on claims for unlawful seizure,
trespass, and removal of his vehicle.
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. Defendant moves for
summary judgment on these claims.
discussed in the Court's Opinion and Order denying
Plaintiff's Motion for Summary Judgment, Plaintiff has
failed to sufficiently allege any facts to support a claim
against FedEx. Further, Defendant asserts that Plaintiff has
failed to respond to discovery to establish a genuine issue
of material fact. All of the allegations in Plaintiff's
Amended Complaint suggest that the actions taken with respect
to the towing of Plaintiff's car were made by a third
party, Fumble Recovery. The only evidence presented with
respect to FedEx establishes that Plaintiff was a customer of
FedEx when his car was towed. Plaintiff has not set forth any
legal ground upon which to recover money damages from FedEx.
Plaintiff has not submitted any evidence that he suffered any
type of harm as a result of the alleged actions in this case.
Plaintiff has not alleged harm to his property, to the car
that was towed, or to his person. The car was immediately
returned to Plaintiff and he was merely inconvenienced.
because Plaintiff has not established the elements to prove
any claims against Defendant FedEx, nor has he alleged any
specific actions taken by FedEx, Defendant FedEx is entitled
to summary judgment on Plaintiff's claims. Accordingly,
Defendant's Motion for Summary Judgment is
that Plaintiff's claims against FedEx have been
dismissed, if FedEx no longer wishes to prosecute its third
party claim against Fumble Recovery, FedEx should file a
notice of voluntary dismissal under Rule 41 of the Federal