United States District Court, D. New Jersey, Camden Vicinage
Kenneth White FCI Fort Dix Inmate Mail/Parcels Pro Se
Ginzburg, Esq. The Ginzburg Law Firm, P.C. Attorney for
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.
matter is before the Court upon a motion for summary judgment
filed by Plaintiff, appearing pro se [ECF No. 23], and a
motion for summary judgment filed by Defendants U.S. Bank
National Association (“U.S. Bank”) and Richard K.
Davies (collectively the “Defendants”). For the
within reasons, Defendants' motion will be granted, and
Plaintiff's motion will be denied. All other remaining
motions are dismissed as moot or without merit.
about July 20, 2016, Plaintiff, pro se, filed a Complaint in
the Superior Court of New Jersey, Burlington County. The
Complaint alleged that on August 20, 2009, Defendants
“took, purloined, confiscated, from Kenneth White
(d.b.a Urban Investment Group, Inc.) out of separate business
accounts $50, 104.94 (savings account) and the sum of $183,
130.13 (business checking account) without any legal or
personal authorization to do so.” (Notice of Removal
Ex. 1 (“Compl.”) at 3 [ECF No. 1-1].) Plaintiff
did not allege separate causes of action, but alleged
generally that he was “entitled under the Constitutions
of New Jersey, Minnesota, and the United States to be secure
in his person, houses, papers and effects. This right was
violated by U.S. Bank when it took Mr. White's effects
(money), and also state and federal laws.” Id.
September 23, 2016, Defendants removed the action to this
Court under diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. Plaintiff was alleged to be a citizen of the
State of Ohio, although he is presently incarcerated at FCI
Fort Dix, New Jersey serving a lengthy sentence with a
projected release date in 2029.
following facts are taken from Defendants' Statement of
Undisputed Material Facts pursuant to L.Civ.R. 56.1(a)
(“DSUMF”). Plaintiff has not disputed these
facts, although he has generally denied Defendants'
defenses. In ruling on Defendants' Motion for Summary
Judgment, the Court construes all inferences, liberally in
favor of Plaintiff, the non-moving party. Meyer v. Riegel
Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
October 2, 2008, Plaintiff opened a U.S. Bank account, with
an account number ending in 6154 (the “6154
Account”). The account was in the name of Urban
Investment Group Inc. (“Urban Investment”).
Plaintiff made himself a joint owner of that account. DSUMF
¶ 2 [ECF No. 17-1]. On November 7, 2008, Plaintiff
opened another U.S. Bank account, account number ending in
5258 (the “5258 Account”) and also in the name of
Urban Investment. Plaintiff made himself a joint owner of
that account. Id. ¶ 3.
13, 2009, Plaintiff deposited a check in the amount of $93,
376.61, drawn on the account of the United States Treasury
Department, into the 5258 Account. The payee on the check was
Conan Thompson, a non-party, who endorsed the check to Urban
Investment and sent a notarized letter to U.S. Bank
authorizing Plaintiff to deposit the check as part of a
purported real estate transaction. Id. ¶ 4.
Four days later, on July 17, 2009, a wire transfer in the
amount of $205, 000 came into the 5258 Account. The wire
transfer was from the Bank of America, N.A. account of Bags
by Rich, which is a non-party entity owned by Richard Dukes,
who is also a non-party. Id. ¶ 5. These large
deposits raised concerns within U.S. Bank, which contacted
Bank of America. In turn, Bank of America informed U.S. Bank
that the Bags by Rich account had recently been funded by
several large U.S. Government tax refund checks, each made
out to Ohio residents. Id. ¶ 6.
21, 2009, U.S. Bank contacted the Internal Revenue Service
(“IRS”), which confirmed that the $93, 376.61
check was a legitimate check from the U.S. Treasury
Department, but the IRS had determined that it was part of a
series of checks issued as a result of false tax returns
being filed by or on behalf of various individuals. This was
also true of the money wired into U.S. Bank, as the IRS
confirmed that each of the checks negotiated through the Bags
by Rich account at Bank of America was the product of false
tax return filings. Id. ¶¶ 7, 8.
to U.S. Bank's Deposit Agreement with Plaintiff (the
“DAA”), U.S. Bank was permitted to place a hold
on Plaintiff's accounts if it suspected any fraudulent
activity. Specifically, the DAA stated:
We reserve the right to place a hold on your account if we
suspect irregular, fraudulent, unlawful or other unauthorized
activity involved with your account. We may attempt to notify
you of such a hold, but we are not required to provide notice
prior to placing the hold. You agree that we may maintain
such a hold until all claims against you or us to the funds
held in your account, whether civil or criminal in nature,
have been resolved fully in our sole satisfaction.
Id. ¶ 15. Moreover, U.S. Bank reserved the
right to close any account “for any reason or for no
reason at all.” Id. ¶ 16.
August 3, 2009, U.S. Bank transferred funds from the 5258
Account and the 6154 Account, in the combined amount of $233,
235.07, to a holding account pending further direction from
the IRS. Id. ¶ 17. On October 7, 2009, the IRS
sent a letter to U.S. Bank advising that it had issued
certain tax refunds incorrectly and requested U.S. Bank's
assistance to recover any amounts in its possession, up to
$330, 000, given to Plaintiff. Id. ¶ 18. On
November 12, 2009, U.S. Bank sent a cashier's check to