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Fletcher v. Hoeppner Wagner & Evans LLP

United States District Court, N.D. Indiana, Hammond Division

September 25, 2017

HOEPPNER WAGNER & EVANS, LLP, et al., Defendants.



         This matter is before the Court on: (1) Defendant Wayne Golomb's Motion For Summary Judgment, filed by Defendant, Wayne Golomb, on January 9, 2017 (DE #137); (2) Defendant Wayne Golomb's Motion For Sanctions, filed by Defendant, Wayne Golomb, on January 9, 2017 (DE #139); and (3) Defendant Wayne Golomb's Motion to Strike Certain Exhibits, filed by Defendant, Wayne Golomb, on July 11, 2017 (DE #196). For the reasons set forth below, the Motion for Summary Judgment (DE #137) is GRANTED, and all claims against Defendant Wayne Golomb (Counts II-IV of the first amended complaint), are DISMISSED WITH PREJUDICE. Additionally, the Motion for Sanctions (DE #139) is DENIED. Finally, the Motion to Strike Certain Exhibits (DE #196) is DENIED. This case remains pending on Count I against Defendant, Hoeppner Wagner & Evans, LLP.


         Plaintiff, Paul Fletcher, who is currently pro se, has asserted three claims against Defendant, Wayne Golomb: constructive fraud, constructive trust, and “accounting and turnover.” (DE #38, First Am. Compl.) The instant case stems from Fletcher's belief that he is entitled to inherit money after his friend Scott Taylor's death, and his belief that Wayne Golomb and another individual, Mark Zupan, conspired together to have Taylor's beneficiary changed unbeknownst to Taylor. Specifically, Fletcher believes that Zupan impersonated Taylor on a telephone call to Fidelity requesting a beneficiary change form, and that Taylor's signature was forged on that document. (DE #189 at 22-23.) Taylor entrusted Golomb to manage some of his financial accounts, and Golomb had limited trading authority on three of Taylor's Fidelity retirement accounts.

         Defendant, Wayne Golomb, filed the instant motion for summary judgment on January 9, 2017 (DE #137), asking for judgment on the claims against Golomb. On January 19, 2017, Golomb filed a notice of the summary judgment motion, alerting pro se Plaintiff to his duty to respond in accordance with Timms v. Frank, 953 F.2d 281 (7th Cir. 1992). After a series of extensions and other pretrial motions, Fletcher filed a response on June 13, 2017 (DE #189). On July 11, 2017, Golomb filed a reply (DE #198). Fletcher then filed a surreply on August 7, 2017 (DE #203).

         On the same day he filed his motion for summary judgment, Golomb also filed a motion for sanctions (DE #139). Golomb argues that from the beginning of this litigation, it has been clear that Fletcher lacks any evidence supporting his claims against Golomb, and the case is patently frivolous. As such, Golomb requests the Court impose sanctions and compensate Golomb for the costs and fees expended in defending this alleged frivolous claim. In his response filed on February 16, 2017, Fletcher contends that he does possess circumstantial evidence to support his claims, and that he has been actively seeking additional discovery during the litigation, so his claims cannot be frivolous. (DE #154). Golomb filed a reply on February 22, 2017 (DE #158), arguing Fletcher's response was untimely, and that sanctions are appropriate and warranted.

         On July 11, 2017, Golomb filed a Rule 56 motion to strike certain exhibits that Plaintiff attached to his response in opposition to Golomb's motion for summary judgment. (DE #196.) Fletcher filed a response in opposition to the motion to strike on August 7, 2017. (DE #202.)

         All of the instant motions are fully briefed and ready for adjudication.


         Undisputed Facts

         This case involves a lengthy set of facts. On July 7, 2014, Plaintiff filed a pro se Complaint for Legal Malpractice in the above captioned matter (DE #1). On October 17, 2014, before service was made on any defendant, Attorney Alison Downs Spanner appeared on behalf of Fletcher (DE #6). Shortly thereafter, on November 17, 2014, Attorneys Donald L. Johnson and Julie A. Boynton filed Applications to Appear Pro Hac Vice on behalf of Fletcher (DE ##10, 11). Attorney Spanner withdrew her appearance on December 11, 2014 (DE ##20, 21). Attorneys Johnson and Boynton withdrew their appearances in August and November 2016, and Fletcher has represented himself pro se ever since.

         On March 6, 2015, Plaintiff, by counsel, filed his Amended Complaint (DE #38). In the Amended Complaint, Plaintiff alleges that Taylor told Fletcher he was the beneficiary of his investment accounts which were valued at just under $1, 000, 000.00. (DE# 38 at ¶ 17.) Plaintiff further alleges that based on "conversations which Taylor had with Plaintiff and other friends before his death, [the defendant] Golomb had control over Taylor's accounts at Fidelity and approximately $500, 000 in maturing certificates of deposit belonging to Taylor." (DE 38 at ¶ 21). Despite these claims, Plaintiff acknowledges in his Amended Complaint that he "has been unable to corroborate with documentary evidence what he had been told by Taylor." (DE 38 at ¶ 89). However, Fletcher does attach documents to his memorandum in opposition showing that Fletcher was at one point the primary beneficiary on the three Fidelity retirement accounts. (DE #189-1, Ex. A.)

         Golomb previously filed a Motion to Dismiss for Failure to State a Claim with this Court on April 20, 2015 (DE #46). Golomb argued the Amended Complaint only contained self-serving, unsupported conspiracy theories (DE #46). Plaintiff acknowledged in his response that he lacked evidentiary support for his allegations against Golomb; however, he cast blame on Golomb for failing to disclose information and documents, and on his own former attorneys. (DE #60.) This Court denied Golomb's motion to dismiss on July 29, 2015 (DE #66). In considering the procedural posture of the case, this Court found Plaintiff had successfully pled his causes of action when the facts were construed in the light most favorable to Plaintiff (as they must be at the dismissal stage). (DE #66).

         Since the denial of Golomb's motion to dismiss, this matter has been subjected to more than a year of discovery. This discovery has included the depositions of Wayne Golomb, Paul Fletcher, and Carole Wockner (Mr. Fletcher's wife). It has also included the exchange of written discovery, including Interrogatories, Requests for Production and Requests for Admissions. Plaintiff initially claimed in his Amended Complaint and response to the motion to dismiss that he did not have evidentiary support for his allegations because Golomb supposedly had the information. Therefore, Plaintiff issued Interrogatories to Golomb. (See DE #140-1, Ex. A.) In these Interrogatories, Golomb was asked about the current location of funds or assets that belonged to Scott Taylor. (Id. at Interrogatory No. 1.) In response, Golomb answered that his "involvement with Scott Taylor's investment accounts was limited to having trading authority as to some of Scott Taylor's retirement accounts held by Fidelity Investments during Scott Taylor's lifetime." Id. Golomb further indicated that he had no record of those accounts. Id. Golomb was also asked whether he was currently in possession or control of any of Mr. Taylor's assets, and Golomb stated that he was not. (Id. at Interrogatory No. 15.) In addition to Golomb having limited trading authority over Taylor's Fidelity retirement accounts, they had another relationship - Taylor was also a skilled mechanic who worked on Golomb's cars. (First Am. Compl. ¶¶ 13, 19.)

         Plaintiff also served Golomb with Requests for Production. (See DE #140-2, Ex. B.) At that time, Plaintiff requested that Golomb produce, inter alia, the following materials:

Your entire file related to Scott Taylor.
Documents related to any funds or assets belonging to or in which Scott Taylor had an interest that you held, received, managed, accessed, controlled, invested, transacted, advised, kept, or otherwise had any involvement including but not limited to account statements, cancelled checks, portfolios, and the like.
Documents reflecting any transfer of funds or assets owned by Scott Taylor or in which Scott Taylor transferred to you, a relative of yours, an agent of yours, or a designee of yours.
Documents related to any funds you held, received, accessed, managed, controlled, invested, transacted, advised, kept, or otherwise had any involvement which Scott Taylor owned or had an interest.
Documents related to or concerning Scott Taylor and/or his assets.
All certificates of deposit in which Scott Taylor had an interest.
Statements from any stock brokerage firms or from commodity brokerage firms for accounts wholly or partially in the name of Scott Taylor or under the name of any other person or entity which are being held for the benefit of Scott Taylor.

Id. In response to each of these requests, Golomb responded that he did not have any responsive documents. Id.

         On March 23, 2016, Plaintiff took the deposition of Golomb. Golomb testified that during the last two years of Taylor's life, Taylor “was not interested in whatever happened to the money” and Golomb did not remember making trades for him anymore. (Golomb Dep. at 39-40.) Yet, Fletcher points to Fidelity's Symphony log which shows that Golomb was still calling about Taylor's accounts, making certain actions on them, requesting information about them, and trying to gain additional trading authorization, even through 2007 and 2008. (DE #189-3, Ex. E.)

         Later during the litigation, Golomb issued Requests for Admissions to the Plaintiff in June 2016. (See DE #140-3, Ex. C.) Plaintiff was first asked to admit that he does not have any evidence that Scott Taylor owned any certificates of deposit at the time of his death. (Id. at Request No. 1.) Plaintiff said he had received documents from Fidelity and Chase, but he was still "awaiting documents and deposition testimony." Id. Similarly, Plaintiff was asked to admit that he did not have any evidence that Golomb possessed or controlled any certificates of deposit that may have been held by Taylor. (Id. at Request No. 2.) ...

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