United States District Court, M.D. Tennessee, Nashville Division
JESUS M. LOPEZ, Plaintiff,
SUN TRUST BANK, Officially, Defendant.
KEVIN H. SHARP, Chief District Judge.
Before the Court are plaintiff Jesus M. Lopez's objections to Magistrate Judge Joe Brown's recommendation that the complaint be dismissed as barred by the doctrine of res judicata . Based on the plaintiff's objections, the Court has considered de novo the defendant's motion to dismiss in light of the plaintiff's arguments in opposition both to the defendant's and to the Report and Recommendation ("R&R"). For the reasons set forth herein, the Court will overrule the plaintiff's objections, grant the defendant's motion to dismiss, and dismiss this action prejudice. All other pending motions will be denied as moot.
I. Procedural and Factual Background
Lopez is a state prisoner presently incarcerated in Navasota, Texas. He filed his complaint (ECF No. 1) originally against defendants Barbara M. Strong, alias Barbara Lopez, Janet Shehata, First Call Incorporated, SunTrust Bank ("SunTrust"), and Tennessee Farmers Mutual Insurance Company (ECF No. 1). The Court granted the plaintiff's application to proceed in forma pauperis and, on initial review, dismissed the claims against all defendants except SunTrust.
In his complaint, the plaintiff alleges that he owns a home located in Nashville, Tennessee that was damaged by a fire on May 23, 2009 (Compl., ECF No. 1, at 1-2). The plaintiff alleges that he signed a limited power of attorney conferring upon defendant Barbara Strong, also known as Barbara Lopez, the authority "[t]o inquire about obtaining insurance on [the plaintiff's home]." (Compl. Ex. A, ECF No. 1-1, at 2.) On August 27, 2009, defendant Tennessee Farmers Mutual Insurance Company issued a check in the amount of $95, 745.35 jointly to defendant First Call and to the plaintiff. (Compl. Ex. C, ECF No. 1-2, at 4.) Barbara Strong endorsed the check to First Call by signing the plaintiff's name and appending: "by Barbara M. Strong P.O.A." ( Id. )
On September 10, 2009, First Call drafted a check in the amount of $79, 949.21 to the plaintiff (Compl. Ex. B, ECF No. 1-2, at 2), and those funds were deposited into the plaintiff's checking account, account no. xxxx3673, held by defendant SunTrust.
That account is held in the name of Jesus Lopez or Barbara Lopez. (Compl. Ex. F, ECF No. 1-2, at 10.) On October 23, 2009, SunTrust sent the plaintiff a letter notifying him that it had updated the account with "the correct name for Barbara M Strong AKA Barbara Lopez, " and requesting that the plaintiff sign and notarize the enclosed updated signature card for the account. (Compl. Exs. I & J, ECF No. 1-2, at 17, 19.) Although the plaintiff never signed the new signature card containing Barbara Strong's name, the signature card indicates that it was revised as of October 21, 2009 to reflect that Ms. Strong was authorized to draw on the account. (Ex. J, ECF No. 1-2, at 19.)
On October 1, 2009, the plaintiff executed a power of attorney to his son Jesus Lopez authorizing him to "withdraw $79, 949.21 from [his] SunTrust Bank Account # xxx3673, effective immediately" and to deposit the funds into different accounts held only in the plaintiff's name. (Compl. Ex. K, ECF No. 1-2, at 21.) There is no indication in the record regarding whether the plaintiff's son acted on that authorization.
On October 21, 2009, SunTrust issued a cashier's check in the amount of $30, 000.00 made out to "Barbara Lopez AKA Barbara Strong, " which the plaintiff indicates was debited from account no. xxxx3673. (Compl. Ex. D, ECF No. 1-2, at 6.) On the same day, Barbara Lopez withdrew $3, 000.00 from the account by a counter withdrawal ticket which she signed "Barbara Strong aka Barbara Lopez." (Compl. Ex. G, ECF No. 1-2, at 13.) On October 23, 2009, SunTrust honored a $3, 000.00 check made payable to Jesus Lopez that was drawn on the same account, signed by Barbara Lopez. (Compl. Ex. G, ECF No. 1-2, at 12.)
The plaintiff filed this action on November 14, 2013, alleging breach of contract against all defendants. The Court granted the plaintiff's application to proceed in forma pauperis and conducted an initial screening of the complaint pursuant to the Prison Litigation Reform Act. In conducting this review, the Court found, for purposes of the initial screening only, that the complaint stated a colorable claim against defendant SunTrust for breach of contract that did not appear to be barred by Tennessee's statute of limitations that pertains to "actions on contracts not otherwise expressly provided for, " Tenn. Code Ann. § 28-3-109(a)(3). The Court directed service of process upon defendant SunTrust but dismissed the claims against all other defendants.
In response to the complaint, SunTrust promptly filed a motion to dismiss and supporting memorandum of law (ECF Nos. 9 & 10), asserting that the alleged contract in this case is "otherwise provided for" in the three-year statute of limitations found at Tenn. Code Ann. § 47-4-111, and that plaintiff's claim against it is barred by that statute. The plaintiff filed a response in opposition to the motion and a motion for a hearing (ECF Nos. 34, 38). Magistrate Judge Brown issued an R&R in which he recommended that the complaint be dismissed on the ground that the claim asserted therein is barred by the doctrine of res judicata (ECF No. 46).
The magistrate judge's recommendation is based upon the fact that, as recognized in this Court's initial review, the complaint in this action is "for all practical purposes, identical to a complaint filed by the same plaintiff in this Court [in February 2013], except the prior complaint sought to recover damages under theories of fraud and violation of the plaintiff's constitutional rights, while the present complaint asserts jurisdiction on the basis of diversity and attempts to make out the elements of a claim for breach of contract." (ECF No. 3, at 1, referring to Lopez v. Strong (the "Prior Action"), 3:13-cv-0115 (M.D. Tenn. Feb. 13, 2013) (order of dismissal for failure to state a claim).)
The plaintiff filed objections to the R&R (ECF No. 49) and subsequently, with the Court's permission, filed a supplemental memorandum titled "Written Objection to the Memorandum of Law in Support of Sun Trust Bank's Motion to Dismiss" (ECF No. 59). SunTrust filed a response to those objections (ECF No. 60)
Thereafter, the plaintiff filed his own motion for summary judgment and motion for an order compelling discovery. The defendant has filed a motion to ascertain the status of the case and a response in opposition to the plaintiff's motion for summary judgment.
II. Standard of Review
When a magistrate judge recommends the disposition of a motion to dismiss, the district judge must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(B). See also Fed.R.Civ.P. 72(b) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). An objection is "properly" made if it is sufficiently specific to "enable the district judge to focus ...