United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT
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.
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.
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).
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.
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.)
the instant motions are fully briefed and ready for
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.
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.)
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).
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.)
also served Golomb with Requests for Production.
(See DE #140-2, Ex. B.) At that time, Plaintiff
requested that Golomb produce, inter alia, the
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
Documents related to or concerning Scott Taylor and/or his
All certificates of deposit in which Scott Taylor had an
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.
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.
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.) ...