Lechoslaw v. Bank of America, N.A.

• Decision Date: 08 September 2008
• Docket Number: Civil Action No. 07-40017-FDS.
• Citation: 575 F.Supp.2d 286
• Parties: Szymas LECHOSLAW, Plaintiff, v. BANK OF AMERICA, N.A; Bank Handlowy W. Warszawie SA; and Fleet Bank, Defendants.
• Court: U.S. District Court — District of Massachusetts

575 F.Supp.2d 286

Szymas LECHOSLAW, Plaintiff, v. BANK OF AMERICA, N.A; Bank Handlowy W. Warszawie SA; and Fleet Bank, Defendants.

Civil Action No. 07-40017-FDS.

United States District Court, D. Massachusetts.

September 8, 2008.

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Timothy J. Burke, Burke & Associates, Braintree, MA, for Plaintiff.

Donn A. Randall, Mary Ellen Manganelli, Bulkley Richardson & Gelinas LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

SAYLOR, District Judge.

This is an action arising out of the sale, and ultimate loss, of an official bank check. Plaintiff Szymas Lechoslaw contends that defendant Bank of America improperly sold him such a check, which he intended to use to fund a construction project in Poland, and then lost it.¹ Specifically, Lechoslaw brings claims for (1) negligence in the sale of the check, (2) breach of contract in the sale of the check, (3) negligence in the processing of the check, (4) breach of contract generally, (5) breach of the implied covenant of good faith and fair dealing, (6) infliction of emotional distress, (7) misrepresentation, and (8) violation of Mass. Gen. Laws ch. 93A.

The parties have filed cross-motions for summary judgment.² For the reasons stated below, plaintiff's motion for summary judgment will be denied, and defendant's motion for summary judgment will be granted in part and denied in part.

I. Background

The following facts are undisputed unless otherwise noted.

A. Purchase and Processing of the Official Check

Plaintiff Syzmas Lechoslaw is a citizen of the United States who resides in Worcester, Massachusetts. His primary language is Polish, although he can speak and understand simple English terms.

In the 1990's, Lechoslaw began construction of a hotel and restaurant in Poznan, Poland. At some point during the construction process, and prior to July 2000, Lechoslaw applied to the European Cooperative Bank ("ECB") to secure a loan to complete construction of the hotel. ECB agreed to finance the completion of the complex if it was 20% complete by December 2000.³

On July 28, 2000, Lechoslaw visited a Bank of America ("BOA") branch in Worcester. He went there for the purpose of sending money to Poland. The parties agree that when Lechoslaw entered the bank, he had no pre-existing expectation concerning the exact method by which funds would be transferred.

Lechoslaw met with Adam Glass, a BOA customer service representative. He told Glass that he wished to send money to PKO, a bank in Poland. Lechoslaw did not tell Glass or any other BOA employee the purpose for which he wished to transfer the money.

Lechoslaw contends that Glass told him that the "best" way to send money to Poland would be for Lechoslaw to purchase an official check.⁴ Glass also allegedly told Lechoslaw that he would be able to cash the check anywhere in the world "without a problem."⁵

Glass did not inform Lechoslaw that if an official check is lost, it would take an additional thirty days to track and process it.⁶ At no point did either Glass or Lechoslaw mention the possibility of sending money via international wire transfer.⁷

Ultimately, Lechoslaw purchased an official check in the amount of $31,787.34, with himself as the payee. On July 31, 2000, he traveled to Poland with the check. He presented it to Bank Handlowy on October 2, 2000, more than two months later. Lechoslaw contends that he presented the check at this time because he needed the money within the next week or two.

Lechoslaw contends that after presentment, Bank Handlowy sent the check to BOA by registered mail, using the Polish postal system. Either the check never arrived, or it arrived and was lost; BOA does not concede that it received it.

On October 10, Lechoslaw noticed that the money had not yet been deposited in his account and contacted the manager of Bank Handlowy. He contends that on that date, the manager contacted BOA to voice Lechoslaw's concerns.⁸

Lechoslaw contends that on December 1, 2000, the project's general contractor informed him that it was terminating their contract due to a failure to provide required materials and failure to pay.

On December 4, Bank Handlowy contacted a BOA representative named Josephine Parolisi. Parolisi determined that BOA had no record of receiving the check from Bank Handlowy, and that it was still outstanding with Bank One Colorado (the drawee).⁹ Parolisi .informed Bank Handlowy of those facts on that same day.

On December 19, Parolisi again informed Bank Handlowy that the check was apparently lost in transit and remained outstanding in Bank One Colorado's records. On December 21, Bank Handlowy sent BOA an indemnified photocopy of the check by facsimile.¹⁰

On December 31, ECB notified Lechoslaw that it would not lend him the funds necessary for the completion of the project. Lechoslaw contends that the reason given for ECB's denial was the failure to meet the "20% complete" requirement.

On January 9, the indemnified photocopy of the check arrived in BOA's Adjustments Department and was placed in line to be processed for payment. On February 2, BOA representative Mary Brybag informed Bank Handlowy that BOA had initiated a $31,787.34 payment to Citibank New York in favor of Bank Handlowy. In early February 2001—five months after he presented it—Bank Handlowy paid Lechoslaw the full face value of the check.

Lechoslaw contends that after he lost financing from ECB, he was unable to secure funds from any other source. He also contends that because construction was suspended, the project was "practically destroyed" during the winter of 2001— the structure was covered in mold and fungi, skylights were stolen, and electrical items were ruined. He also asserts that his physical and mental health rapidly deteriorated, and that he subsequently became suicidal.

Lechoslaw alleges that he suffered the following damages: (1) the loss of $700,000 in anticipated appreciation in the value of the hotel, (2) costs to repair the damage to the hotel in the amount of $1.1 million, (3) lost profits of more than $4.4 million as of August 2007, and (4) medical and emotional damages.

B. Procedural History

Lechoslaw filed this action in Worcester Superior Court on October 1, 2003, against BOA, Bank Handlowy, and Citibank. Bank Handlowy and Citibank were dismissed from the case by the Superior Court in December 2004. BOA moved for summary judgment as to all counts; on November 18, 2005, the Superior Court denied the motion for summary judgment as to Counts 3, 4, 5, 6, and 7, without addressing Counts 1, 2, and 8.¹¹ BOA then removed the case to this Court on January 18, 2007.¹² BOA has now moved for summary judgment as to all claims.

II. Analysis

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). A genuine issue is "one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant ... would permit a rational fact finder to resolve the issue in favor of either party." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

As noted, BOA moved for, and was denied, summary judgment as to Counts 3, 4, 5, 6, and 7 before the case was removed to this Court. By statute, "injunctions, orders, and other proceedings had in such [state] action prior to its removal shall remain in full force and effect until dissolved or modified by the district court." 28 U.S.C. § 1450. Interlocutory state court orders thus "are transformed by operation of 28 U.S.C. § 1450 into orders of the federal district court to which the action is removed." Louisiana v. Guidry, 489 F.3d 692, 698 (7th Cir.2007) (citing Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1304 (5th Cir.1988)); see also Munsey v. Testworth Laboratories, 227 F.2d 902, 903 (6th Cir.1955).

Accordingly, the Court will treat defendant's motion for summary judgment as to those counts as a motion for reconsideration. See, e.g., Nissho-Iwai, 845 F.2d at 1304 ("[the state court's ruling] ... remains subject to reconsideration just as it had been prior to removal"). As to Counts 1, 2, and 8, it appears that the Superior Court did not consider the issue, and therefore the Court will simply apply the summary judgment standard set forth in Fed.R.Civ.P. 56.

The Court's analysis will begin with the motion for reconsideration.

A. Whether the Decision of the Superior Court Should Be Reconsidered

To be entitled to relief on a motion for reconsideration, the moving party must "demonstrate either that newly discovered evidence (not previously available) has come to light or that the rendering court committed a manifest error of law." Palmer v. Champion Mortgage, 465 F.3d 24, 30 (1st Cir.2006). Defendant contends that the Superior Court committed the following manifest errors of law: (1) it relied upon an affidavit not made with personal knowledge, (2) it determined that the presumption of delivery applies to a letter originating internationally, (3) it determined that plaintiff made the required showing to receive the benefit of the presumption, and (4) it improperly took judicial notice of the alleged reliability of the Polish mail system. See Lechoslaw v. Fleet Nat. Bank, 20 Mass. L. Rptr. 382, 2005 WL 3722419 *1, *1-3 (Mass.Super.2005).

The Superior Court's memorandum of decision first notes that BOA "moves for partial summary judgment on counts [3, 4, 5, 6, and 7] of the Amended Complaint," and then recounts the facts of the case. Id. at *1-2. Without elaboration, it then states that "on the record before the court, [BOA] is entitled to summary judgment unless there is evidence from which a jury would be warranted in finding that [BOA] received Lechoslaw's check." Id....