Bell-Sparrow v. Paul Wiltz, Mone'T Inc.
| Decision Date | 27 June 2014 |
| Docket Number | No. C 12-02782 SI,C 12-02782 SI |
| Court | U.S. District Court — Northern District of California |
| Parties | ARLENE BELL-SPARROW, Plaintiff, v. PAUL WILTZ, MONE'T INC., and WONDA MCGOWAN Defendants. |
Now before the Court is a motion by plaintiff Arlene Bell-Sparrow for summary judgment against defendant Wonda McGowan. Docket No. 70. The Court scheduled a hearing on the matter for June 27, 2014, but when the matter was called by the Court, plaintiff was not present in the courtroom and could not be reached at any of the telephone numbers she had provided to the Court. Therefore, the matter was submitted for decision on the papers filed. Having considered the parties' arguments, the Court hereby DENIES plaintiff's motion for summary judgment. In addition, the Court SCHEDULES a further telephonic case management conference for Friday, July 25, 2014 at 3:00 p.m. to discuss the scheduling of a bench trial or alternatives to a bench trial in this matter.
Defendant Mone't Inc. ("Mone't") is an Illinois corporation that provides funding for commercial property. Docket No. 28, FAC at 6; Docket No. 73 at 16, 18. Defendant Paul Wiltz is the owner and CEO of Mone't, and defendant Wonda McGowan was the Executive Vice-President andSenior Marketing Director of Mone't.1 Docket No. 73 at 12-15, 18-20; Docket No. 73-2 at 4, 12-13.
Around August 2009, plaintiff contacted Mr. Wiltz seeking help with the purchase of a commercial property. FAC at 6. On September 11, 2009, Mr. Wiltz forwarded to plaintiff, through an email by Don Lucas, a retention agreement and requested that plaintiff execute the agreement and send the required retention fee to Mone't by September 15, 2009. Docket No. 73 at 8-9. Plaintiff states that the contract contained a clause requiring a non-refundable up-front fee of $11,500. FAC at 6. On September 13, 2009, plaintiff sent an email to Mr. Wiltz and Mr. Lucas stating that $7,500 was all the money she had and asking them to change the fee provision in the contract making the required fee refundable. Docket No. 73 at 8-9; Docket No. 73-1 at 5. Plaintiff alleges that she later called Mr. Wiltz and requested that the contract be changed so that she would receive the $11,500 fee back if the commercial project was not funded. FAC at 6-7. Plaintiff states that Mr. Wiltz agreed to change the terms of the contract and stated that plaintiff would be reimbursed the $11,500 if the project did not go through. Id. at 6-7, ¶¶ 2-3; Docket No. 72, Bell-Sparrow Decl. ¶¶ 2, 14.
Plaintiff entered into the contract with Mone't, and, on September 17, 2009 wired the $11,500 fee to Mone't. FAC ¶¶ 1, 49; Docket No. 72, Bell-Sparrow Decl. ¶ 1; Docket No. 73 at 10-11. On September 24, 2009, Ms. McGowan sent plaintiff an email acknowledging that the $11,500 had been received. Docket No. 73 at 20-21.
Plaintiff found a commercial property called Emerald Square Apartments listed for $4,700,000 and made an offer on the property. Docket No. 72, Bell-Sparrow Decl. ¶ 4; Docket No. 73 at 22-32. On October 8, 2009, Mr. Wiltz sent plaintiff an email informing her that in order to obtain funding for the property, plaintiff would have to wire an additional $60,000 to Mone't.2 Docket No. 73 at 33-36;Docket No. 73-1 at 22-24; see also Docket No. 73-1 at 6, 8 (). Plaintiff alleges that this additional payment was not required under the terms of the contract. FAC ¶¶ 107-08; Docket No. 72, Bell-Sparrow Decl. ¶ 18. Plaintiff attempted to but was ultimately unable to obtain the additional money. Docket No. 72, Bell-Sparrow Decl. ¶ 19; see, e.g., Docket No. 73-1 at 25-26. On January 20, 2010, plaintiff sent an email to Ms. McGowan stating that she no longer wished to continue working with Mone't to obtain a loan and requesting a refund of her $11,500 fee. Docket No. 73 at 33-36. Ms. McGowan forwarded plaintiff's refund request to Mr. Wiltz. Id.
Through several communications, Mr. Wiltz and Ms. McGowan represented to plaintiff that she would receive a refund of her $11,500 fee. Docket No. 73 at 38-40; Docket No. 73-1 at 2, 10-16, 35-36; Docket No. 73-2 at 39-42. However, plaintiff ultimately never received a refund of her $11,500 payment. Docket No. 72, Bell-Sparrow Decl. ¶ 22.
On May 31, 2012, plaintiff filed a complaint against defendants Paul Wiltz, Mone't Inc. and Wonda McGowan. Docket No. 1. On October 12, 2012, defendant McGowan filed an answer and a motion to dismiss the complaint.3 Docket No. 15. On February 20, 2013, plaintiff filed a first amended complaint, alleging causes of action against the defendants for: (1) breach of contract; (2) negligent misrepresentation; (3) promissory fraud; (4) fraud; (5) violation of California's Unfair Competition Law ("UCL"); and (6) breach of the implied covenant of good faith and fair dealing. Docket No. 28.
On January 6, 2014, defendant McGowan filed a motion to dismiss the first amended complaint. Docket No. 58. On February 4, 2014, the Court granted in part and denied in part Ms. McGowan's motion to dismiss, dismissing plaintiff's claims for breach of contract and breach of the implied covenant of good faith and fair dealing against Ms. McGowan. Docket No. 61 at 4-5.
By the present motion, plaintiff moves for summary of judgment of her claims for civil conspiracy, violation of the Truth In Lending Act ("TILA"), breach of fiduciary duty, negligentmisrepresentation, and fraud. Docket No. 71, Pl.'s Mot at 11-25. In her opposition, defendant McGowan argues that plaintiff's action against her should be dismissed for lack of subject matter jurisdiction and for lack of personal jurisdiction. Docket No. 77, Def.'s Opp'n at 2-6. Both plaintiff and defendant are acting pro se.
Summary judgment is proper "if the movant shows that 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). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate to the Court that there is an absence of evidence to support the non-moving party's case. Id. at 325.
Once the moving party has met its burden, the burden shifts to the nonmoving party to "set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 324). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In deciding a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raisegenuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). The evidence the parties present must be admissible. Fed. R. Civ. P. 56(c)(2).
In her opposition, defendant McGowan argues that the action should be dismissed for lack of subject matter jurisdiction. Def.'s Opp'n at 2-5. Specifically, defendant McGowan argues that the Court lacks diversity jurisdiction because the parties are not diverse and the amount in controversy has not been met. Id.
Federal courts are courts of limited jurisdiction. United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008). Without subject matter jurisdiction Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). A federal court's subject-matter jurisdiction can never be waived or forfeited, objections to the court's jurisdiction may be resurrected at any point in the litigation, and courts are obligated to consider sua sponte whether subject matter jurisdiction exists. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1035-36 (9th Cir. 2013). As the party invoking federal jurisdiction, plaintiff bears the burden of establishing the existence of subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
Here, plaintiff alleges that the Court has diversity jurisdiction. Docket No. 1, Compl. at 1. Diversity jurisdiction requires complete diversity of citizenship among the parties and a minimum amount in controversy of over $75,000. See 28 U.S.C. § 1332. Complete diversity of citizenship requires that not a single plaintiff is a citizen of the same state as any of the defendants. Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 553 (2005). For diversity jurisdiction purposes, a corporation is "deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business." 28 U.S.C. § 1332(c)(1). A naturalperson's...
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