The opinion of the court was delivered by: James H. Jarvis United States District Judge
This is an action originally brought in the Chancery Court for Campbell County, Tennessee, by the Home Federal Bank Corporation (Home Federal), arising out of a bank account opened with an allegedly forged check in the amount of approximately $1.8 million. It resulted in a judgment in favor of Home Federal against John D. Henegar in the approximate amount of $114,000 plus interest. The state court action also had a third-party complaint by Mr. Henegar, the payee listed on the $1.8 million check, against third-party defendant Agilysys, Inc. (Agilysys), the payor on the check. Following the entry of judgment in favor of the Bank, Agilysys removed the remainder of the case to this court on the basis of diversity of citizenship, 28 U.S.C. §1332. On August 11, 2006, this court entered summary judgment in favor of Agilysys following the plaintiff's failure to timely respond to Agilysys' summary judgment motion.
Following the entry of summary judgment, plaintiff John Henegar filed the following motions:
(1) Plaintiff's motion for relief from summary judgment [Court File #13];
(2) Plaintiff's motion for summary judgment [Court File #14];
(3) Plaintiff's motion for a new trial [Court File #16]; and
(4) Plaintiff's amended motion for relief and motion for new trial [Court File #17].
For the reasons that follow, each of those motions will be denied and this action dismissed.
Mr. Henegar contends that he was unable to timely respond to the motion for summary judgment because he was out of town and unaware of the motion. The court is mindful that Mr. Henegar is proceeding pro se. Accordingly, the court will reconsider the entry of summary judgment in the defendant's favor in light of the submissions the plaintiff and defendant have made following the entry of summary judgment. The court concludes that even in light of those submissions, the defendant is nevertheless entitled to summary judgment.
Plaintiff's factual allegations are contained in his brief in support of his motion for summary judgment. Plaintiff's allegations relevant to the summary judgment motion are as follows:
I entered into a contract with Agilysys Canada, Inc., (ACI), a subsidiary of Agilysys, Inc., in January of 2005, to purchase a data base I had created. The discussion had originally started when I was searching for a company to help develop it and place it on CD Rom. I [sic] turned out, it was going to cost more than I could afford, so I had asked Mr. Ahmed Kudizoo, purchasing director for Agilysys, Inc., if they might be interested in purchasing the data base and all of its rights. A few days later Mr. Kudizoo had e-mailed me with an offer of $1.8 million to buy the data base. I accepted the offer. Mr. Kudizoo then stated that I would receive a contract, and to sign it and mail it back. On January 30, 2005, I received the contract. I read it, signed it, and mailed it back to Agilysys, Inc., in Solon, OH. On February 17, 2005, I received a check in the amount of $1,843,322.39, via DHL.
On February 24, 2005, Mr. Williams (Home Federal Bank) notified me that the check had cleared, and the funds were available. So, as any other normal person would do, I paid some bills, and bought three new vehicles and three four-wheelers for my children. On February 28, 2005, I had written a check to a friend for a $5,000 loan. About an hour later, the person called me and told me that the check was no good. I immediately called the bank and Mr. Williams was not available. I spoke with Angie Poteet, who stated that there was a problem with the check and to call back in an hr. and speak with Mr. Williams.
I called back and spoke with Mr. Williams. He stated that the defendant's (Agilysys, Inc.) bank, the Bank of Montreal, had placed a hold on the check at the defendant's insistence. The Bank of Montreal stated ...