The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
BARBARA SCHIFFMAN, Case No. 6:18-cv-00474-AA
OPINION & ORDER
Plaintiff,
v.
WELLS FARGO BANK, NATIONAL
ASSOCIATION, a nationally chartered bank,
Defendant.
AIKEN, District Judge:
This 1s a case about an allegedly missing certificate of deposit (“CD”). Barbara
Schiffman (“Plaintiff”) has sued Wells Fargo (“Defendant”) alleging breach of contract
and conversion for a CD that Defendant claims to have no record of. Defendant has
moved for summary judgment on all issues. For the reasons below, the Court
GRANTS Defendant’s motion (doc. 11).
NNN
YAN
Page 1 - OPINION AND ORDER
BACKGROUND
On or about February 2, 1987, Plaintiff bought a CD for $21,000 at the First
Interstate Bank, now a subsidiary of Defendant. Although by its terms the CD
accrued 5.5% interest every six-months, it renewed automatically, and interest
payments were added to the principal. Plaintiff tried to redeem her CD in 2017 but
Defendant declined and claims to have no record of it. Plaintiff filed suit alleging
breach of contract and, in the alternative, conversion. Defendant now moves for
summary judgment.
STANDARD OF REVIEW
A party is entitled to summary judgment if the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter oflaw.” Fed. R. Civ. P. 56(a). The moving party has the burden of establishing
the lack of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Ifthe moving party can meet this burden, the burden shifts to the non-
moving party to show that a genuine dispute of material fact exists. Rivera v. Philip
Morris, Inc., 395 F.8d 1142, 1146 (9th Cir. 2005). To meet its burden, “the non-
moving party must do more than show there is some metaphysical doubt as to the
material facts at issue.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (8th Cir.
2010).
The court must view the evidence in the light most favorable to the non-movant
and draw all reasonable inferences in the non-movant’s favor. Clicks Billiards Inc.
u. Sixshooters Inc., 251 F.8d 1252, 1257 (th Cir. 2001). However, “a mere
disagreement or the bald assertion that a genuine issue of material fact exists is not
Page 2~ OPINION AND ORDER
sufficient to preclude the grant of summary judgment.” Cook v. Brown, 364 F. Supp.
8d 1184, 1187 (D. Or. 2019) (quoting Harper v. Wallingford, 877 F.2d 728, 731 (9th
Cir. 1989)). Although credibility determinations, weighting the evidence, and
drawing inferences are usually left to the jury, the “mere existence of a scintilla of
evidence in support of the plaintiff's position [is] insufficient.” Anderson v. Liberty
Lobby, Inc., 477 U.S, 242, 252, 255, (1986). “Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v. Zentth Radio Corp., 475 U.S. 574, 587,
(1986) (cleaned up).
DISCUSSION
Defendant argues that Plaintiff cannot meet her burden on summary judgment
because she hasn’t provided evidence to support her claim that Defendant lost or stole
her CD. Plaintiff argues that she has met. her burden because she avers that she
never withdrew her funds and supports her contention with an affidavit. She argues
that the only inference that can be drawn is that Defendant lost or stole her CD. For
the following reasons, I agree with Defendant.
Plaintiffs error on summary judgement is that she assumes her only burden
is to provide evidence that she never redeemed her CD. But Plaintiffs actual legal
claims are for breach of contract and conversion. Both of these claims require some
level of action or inaction on the part of Defendant, and Plaintiff has failed to come
forward with evidence that Defendant is in possession of her CD or that Defendant
lost track of her funds. As Defendant points out, Plaintiffs CD may have been
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redeemed by her husband without her knowledge or Plaintiff may have redeemed her
CD and forgotten about it. And while Plaintiffs affidavit indicates that she believes
these scenarios to be unlikely, that affidavit is not enough to draw the necessary
inferences to support her burden for her breach of contract or conversion claim.
Put another way there is no evidence beyond Plaintiffs affidavit (which simply
states that she never redeemed her CD) that Defendant lost or stole her funds. On
summary judgment, “a mere disagreement or the bald assertion that a genuine issue
of material fact exists is not sufficient to preclude the grant of summary judgment.”
Cook vu. Brown, 364 F. Supp. 3d 1184, 1187 (D. Or. 2019) (quoting Harper v.
Wallingford, 877 F.2d 728, 731 (9th Cir. 1989); see also Galen v. County of Los Angeles
(a mere scintilla of evidence is insufficient to withstand summary judgment). Thus,
the question becomes what evidence does Plaintiff have to support her specific
contention that Defendant lost or stole her funds, t.e., evidence in support of her
specific legal claims of breach of contract and conversion. Plaintiff has failed to
provide any such evidence and an affidavit that states Plaintiff does not believe she
ever redeemed her CD is insufficient.
Additionally, much of the evidence that Plaintiff points to does not support her
position. For example, Plaintiff points to a receipt that she obtained at the time of
the purchase of her CD as evidence that she never redeemed it. But surrender of the
receipt was not required to redeem the CD, and the evidence at best only supports
the contention that a CD was purchased from Defendant, without any effect on the
issue of loss or theft on the part of Defendant. Other evidence that one might expect
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Plaintiff to have also does not exist, e.g., tax documents indicating payment of interest
on the CD throughout the last few decades. In fact, Plaintiff admits that she never
received any 1099-INT forms from Defendant—which Defendant would have been
required to send had Plaintiff not redeemed the CD, and which Defendant has been
sending other chents for years.
Still, the remaining evidence points to the possibility that Plaintiffs CD was
likely redeemed at some point in the past. Plaintiffs husband was listed as one of
the account holders on the receipt of the CD and he listed interest income from a CD
with Defendant on his tax returns in 1992. The listed interest amount was about
how much Plaintiff would have received from her investment, which supports the
contention that her husband was aware of the CD’s existence, was managing the
investment, and may have redeemed it without Plaintiffs knowledge.
The parties have also indicated that discovery has completed. The only record
a fact-finder will have to go on is the record before the Court and the only material
evidence supporting Plaintiffs contention is her own affidavit indicating that she has
not redeemed her funds. But this is simply insufficient for a rational trier of fact to
find for Plaintiff on either her breach of contract or conversion claim. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986) (cleaned up). Thus,
I find that Defendant is entitled to summary judgment.
Page 5 — OPINION AND ORDER
CONCLUSION
Defendant’s motion for summary judgement (doc. 11) is GRANTED and this
case 1s DISMISSED.
ITIS SO ORDERED.
pate
Dated this “““day of September, 2019.
Jen Clcbee
Ann Aiken
United States District Judge
Page 6 — OPINION AND ORDER