Hahn v. Star Bank, PLAINTIFFS-APPELLANTS

Citation190 F.3d 708
Decision Date05 August 1999
Docket NumberDEFENDANTS-APPELLEES,No. 98-3680,PLAINTIFFS-APPELLANTS,98-3680
Parties(6th Cir. 1999) MICHAEL F. HAHN AND MARIE HAHN,, v. STAR BANK, ET AL., Submitted:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 97-00677--Joseph P. Kinneary, District Judge. [Copyrighted Material Omitted] Kim M. Astrella (briefed), Lane, Alton & Horst, Columbus, Ohio, Robert H. Willard (briefed), Columbus, Ohio, John W. Beatty, Wendy L. Anderson (briefed), Dinsmore & Shohl, Cincinnati, Ohio, Karen E. Rubin, Keith L. Carson (briefed), Thompson, Hine & Flory, Cleveland, Ohio, for Appellees.

Michael F. Hahn, Marie Hahn (briefed), Columbus, Ohio, pro se.

Before: Jones, Siler, and Gilman, Circuit Judges.

OPINION

Ronald Lee Gilman, Circuit Judge.

Michael F. Hahn and Marie Hahn appeal from three adverse rulings of the district court that in the aggregate disposed of all of their claims arising from the alleged improper disclosure of their Star Bank loan file. For the reasons set forth below, we AFFIRM the decision of the district court.

I. BACKGROUND

Star Bank approved a loan application submitted by Michael and Marie Hahn in September of 1990. The Hahns used the loan proceeds to build a new house. Because the drywall used in the construction proved to be defective, they filed a lawsuit in the Court of Common Pleas of Franklin County, Ohio against 84 Lumber, the retail seller of the drywall. 84 Lumber impleaded the manufacturer of the drywall, Domtar Gypsum, as a third-party defendant. Domtar is now owned by Georgia-Pacific Corporation ("G-P"). Star Bank was not a party in the state court proceeding.

The suit resulted in a jury verdict in favor of the Hahns. At the Conclusion of the trial on October 29, 1993, the attorney for 84 Lumber, John Gonzales, handed the Hahns their loan file that Gonzales had obtained from Star Bank pursuant to a subpoena. The subpoena had requested "[a]ny and all files, documents, or other papers regarding Construction Loan No. 13953, in the name of Michael F. or Maria A. Hahn."

Michael Fusco was the attorney representing the Hahns in the drywall case. Gonzales's affidavit stated that he had served Fusco with a copy of the subpoena on October 8, 1993. He attached to the affidavit a copy of the October 8, 1993 transmittal letter from himself to Fusco. Fusco's original affidavit asserted that he had no recollection of receiving a copy of the subpoena from Gonzales. In a subsequent affidavit, however, Fusco stated that his prior affidavit was based solely on his recollection of events that had occurred four years previously and that he has not reviewed his files to determine if he had in fact received a copy of the subpoena.

On October 28, 1996, the Hahns filed suit against Star Bank and two of its employees in the United States District Court for the Southern District of Ohio. The Hahns' new counsel was Tobias Elsass. They alleged that Star Bank improperly provided their loan file to Gonzales, and that this conduct constituted a breach of confidentiality, invasion of privacy, defamation, breach of trust, interference with business relations, negligence, the tort of outrage, and emotional distress. Specifically, the Hahns claimed that no subpoena had been issued to Star Bank and that the production of the loan file was therefore improper. Star Bank filed a motion to dismiss on the basis that neither diversity of citizenship nor federal question jurisdiction existed. While the motion was pending, the Hahns voluntarily dismissed the suit on February 10, 1997.

On June 13, 1997, the Hahns, still represented by Elsass, refiled their complaint in the district court. They again named Star Bank as a defendant and added a number of new defendants. The "Star Bank defendants" consist of Star Bank and five of its officers. John M. Gonzales and the law firm in which he is a partner, Crabbe, Brown, Jones, Potts & Schmidt, will be referred to as the "Gonzales defendants." The "G-P defendants" consist of G-P, Domtar Gypsum (n/k/a G-P Gypsum), Domtar's lawyer from the drywall action, William B. Leahy, and the law firm in which Leahy is a partner, Thompson, Hine & Flory. The last group of defendants, known as the "84 Lumber defendants," is comprised of 84 Lumber, Pierce-Hardy Real Estate, Inc., and 84 Associates, Inc.

In their refiled complaint, the Hahns alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681 - 1681u (West & Supp. 1998), their right to privacy under the United States Constitution, and their civil rights under 42 U.S.C. § 1985, as well as numerous causes of action based on state law. Their claims were once again premised upon the theory that no subpoena had ever been issued to Star Bank, thus making the disclosure improper. Based upon this theory, the Hahns' 35-page complaint set forth 13 separate legal theories for recovery and sought $20,000,000 in compensatory and punitive damages against the 15 defendants.

In July of 1997, Star Bank provided the Hahns' counsel with a copy of the subpoena that Gonzales had served on the bank. Pursuant to the "safe harbor" provisions of Rule 11 of the Federal Rules of Civil Procedure, Star Bank requested that the Hahns dismiss their allegedly frivolous action, given that the subpoena was in fact issued to the bank. The Hahns refused to dismiss their lawsuit. One month later, the Star Bank defendants moved for dismissal based on the Hahns' failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Included among the attachments to Star Bank's motion was the original subpoena, which shows that it was received by the bank on October 12, 1993.

The Hahns, though their counsel, filed a memorandum in opposition to the motion and attached a large number of exhibits. The Star Bank defendants' motion was fully briefed and submitted as of September 26, 1997. In November of 1997, discovery was stayed by the magistrate pending a decision on Star Bank's motion. Also in November of 1997, the Hahns' attorney, Elsass, was suspended from the practice of law for reasons unrelated to the Hahns' case. The Hahns have been proceeding pro se since that time.

In an opinion dated March 26, 1998, the district court granted Star Bank's motion for summary judgment. A month and a half later, on May 8, 1998, the district court issued an opinion denying the Hahns' motion for leave to amend their complaint to add four new causes of action. It denied the motion to amend on the basis that the claims set forth in the amended complaint failed to state a cause of action, and thus were futile. Finally, on May 11, 1998, the district court issued an opinion dismissing the Hahns' complaint against all of the remaining defendants. The Hahns now appeal these three rulings.

II. ANALYSIS
A. Summary judgment granted in favor of the Star Bank defendants

1. Standard of review

We review de novo the district court's grant of summary judgment. See, e.g., Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Judge 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 is presented when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

2. The Hahns' FCRA claims are barred by the statute of limitations

All claims brought under FCRA must be brought within two years from the date on which liability arises unless the defendant has "wilfully misrepresented any information required under [FCRA] to be disclosed..." and such information is "material," in which case the limitation is two years after discovery of the misrepresentation. See 15 U.S.C. § 1681p. The Hahns allege that they first discovered that a copy of their loan file had been produced on October 29, 1993. Yet the Hahns did not file their original action regarding the loan file until three years later, on October 28, 1996. So unless the wilful misrepresentation exception applies, all of the Hahns' claims under FCRA are barred by the two year statute of limitations.

According to the Hahns, they were wilfully misled by Jeff Bonynge, a Vice President of Star Bank, when he represented to them that Star Bank had released the loan file pursuant to a valid subpoena. This conversation occurred on July 3, 1995. The Hahns assert that FCRA requires that the subpoena be an order of the court (see 15 U.S.C. § 1681b(a)(1)), and that the relevant subpoena in this case was issued by Gonzales, who is an attorney, not a Judge. Under this theory, the Hahns contend that Bonynge specifically misrepresented the fact that the subpoena was valid. The Hahns maintain that they did not learn that the subpoena was invalid (in their view) until Star Bank provided their former counsel Elsass with a copy of the subpoena on July 7, 1997.

Contrary to the Hahns' argument, we find no need to reach the issue of whether they were wilfully misled by Bonynge's statement regarding the subpoena's validity. In the first place, the subpoena issued by Gonzales has every appearance of being "an order of a court," given that it is signed by Gonzales on behalf of the clerk of the court. See In re Grand Jury Proceedings, 503 F. Supp. 9, 12 (D.N.J. 1980) (...

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