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Bain v. Platinum Realty LLC

United States District Court, D. Kansas

February 14, 2018



          John W. Lungstrum United States District Judge.

         This matter comes before the Court on defendants' motion for summary judgment (Doc. # 88). For the reasons set forth below, the motion is granted in part and denied in part. The motion is granted as unopposed with respect to plaintiffs' claims of breach of fiduciary duty and negligence and their claim for punitive damages, and judgment is awarded to defendants on those claims. The motion is denied with respect to plaintiffs' claim of negligent misrepresentation.

         I. Background

         This case arises from plaintiffs' purchase of a house. Defendant Kathryn Sylvia Coleman (hereafter referred to as “Ms. Sylvia”) acted as the sellers' real estate agent, and she was employed by defendant Platinum Realty, LLC (“Platinum”). The title company for the transaction was Continental Title Company (“CTC”). Prior to the closing of the transaction, plaintiffs had their bank wire the purchase amount to a particular bank account owned not by the sellers, but by some unknown party, and the funds were never recovered. Plaintiffs had acted pursuant to wiring instructions attached to an email to plaintiff Jerry Bain's email account purportedly sent from Ms. Sylvia's email account. In this suit, plaintiffs contend that the unknown party (referred to by the parties as “the hacker”) intercepted an email from CTC to Ms. Sylvia that contained the intended wiring instructions, changed the wiring instructions, created an email address similar to the CTC address, and sent the changed wiring instructions to Ms. Sylvia by email, who then forwarded those instructions to Mr. Bain. Plaintiffs seek to recover damages in the amount of $196, 622.67, the amount wired to the wrong account. By the pretrial order, plaintiffs assert claims against Ms. Sylvia and Platinum for breach of fiduciary duty, negligence, and negligent misrepresentation.[1]

         II. Summary Judgment Standards

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue of fact is “genuine” if “the evidence allows a reasonable jury to resolve the issue either way.” Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006). A fact is “material” when “it is essential to the proper disposition of the claim.” Id.

         The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. (citing Celotex, 477 U.S. at 325).

         If the movant carries this initial burden, the nonmovant may not simply rest upon the pleadings but must “bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof.” Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence pertinent to the material issue “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir. 2002).

         Finally, the court notes that summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

         III. Abandoned Claims

         By the instant motion, defendants seek summary judgment on all claims against them. In their response, plaintiffs have not addressed defendants' arguments with respect to the claims for breach of fiduciary duty, for general negligence, and for punitive damages. Indeed, plaintiffs' brief does not refer to those claims at all. Accordingly, plaintiffs have abandoned any such claims, and the Court grants defendants' motion for summary judgment on those claims as unopposed. See Maestas v. Segura, 416 F.3d 1182, 1190 n.9 (10th Cir. 2005) (party appeared to abandon claim by failing to address it in its brief); Hinsdale v. City of Liberal, Kan., 19 F. App'x 749, 768-69 (10th Cir. 2001) (unpub. op.) (affirming district court's ruling that plaintiff abandoned claim by failing to address it in response to motion for summary judgment) (citing Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1393 (10th Cir. 1992)).

         IV. Negligent Misrepresentation

         A. Representation to Plaintiffs

         Plaintiffs assert a claim against defendants for negligent misrepresentation. According to the pretrial order, plaintiffs contend that Ms. Sylvia negligently supplied false information to plaintiffs “about where to wire the funds” for the purchase of the house. In that regard, plaintiffs argue that in sending the incorrect wiring ...

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