JOHN B. KIMBLE, Plaintiff,
DEAN WITHERS, et al., Defendants.
MICHAEL F. URBANSKI, District Judge.
This matter is before the court for review of the second report and recommendation issued by the magistrate judge in this case (Dkt. # 27). Plaintiff has filed objections to the report. For the reasons set forth below, the court adopts the magistrate judge's recommendation and dismisses plaintiff's claims.
Plaintiff John B. Kimble ("Kimble"), who is proceeding pro se, filed his complaint in this case on October 11, 2012, alleging that defendants wrongfully denied access to funds held in accounts at F & M Bank for his mother, Kay J. Kimble. Kimble asserts that because defendants denied his mother access to her funds, she could not afford adequate medical care, resulting in her death on October 6, 2010. Kimble brings causes of action for negligence/gross negligence, breach of contract, and common law fraud and conspiracy.
Defendants filed a motion to dismiss on November 27, 2012. In his response to that motion, Kimble asserted that he was bringing this action on behalf of his mother's estate as its administrator. The motion to dismiss was referred to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), and the parties appeared before the magistrate judge for a hearing held on January 8, 2013. By Order entered the same date, the magistrate judge ordered plaintiff to secure counsel of record and file any amended complaint by January 31, 2013. Kimble failed to comply with the January 31st deadline. On February 5, 2013, the magistrate judge filed a report and recommendation recommending that this matter be dismissed for failure to prosecute, noting pro se litigants can only file claims personal to them. Kimble filed an objection to the report, claiming he was not able to find counsel to take the case, he could not afford to retain counsel, and he is entitled to represent himself or, alternatively, "the Court can on its own initiative appoint counsel if needed in this matter." Dkt. # 17. By Order dated April 9, 2013, the court adopted the magistrate judge's report and recommendation and dismissed Kimble's case for failure to prosecute, noting plaintiff cannot maintain this action pro se on behalf of his mother's estate if the estate has creditors or beneficiaries. See Pridgen v. Andresen , 113 F.3d 391, 393 (2d Cir. 1997).
On April 17, 2013, Kimble filed a motion for reconsideration, which the court construed as a motion to alter judgment pursuant to Rule 59(e). In his motion, Kimble suggested that he may in fact be able to maintain this action pro se because he either has alleged claims on behalf of himself individually and/or because his mother's estate does not have creditors or beneficiaries. Given Kimble's representations, and out of an abundance of caution, the court vacated its April 9th Order dismissing the case for failure to prosecute and referred this matter back to the magistrate judge for further consideration, with instructions to conduct any hearings, including evidentiary hearings, as necessary, and to submit proposed findings of fact and recommendations for disposition as to whether plaintiff is able to maintain this action pro se and if so, whether his complaint states a claim for which relief can be granted.
The magistrate judge held a second hearing on July 2, 2013. By agreement of the parties, the court considered testimonial evidence outside of the pleadings and thus converted defendants' motion to dismiss into a motion for summary judgment. Following the hearing, defendants submitted additional exhibits, which consist of account signature cards, a copy of a June 2, 2009 durable power of attorney, and correspondence between the bank and Kimble and the bank and Kimble's mother. The magistrate judge issued a second report and recommendation on September 11, 2013, recommending that the court grant defendants' motion and dismiss Kimble's claims. Kimble filed objections to the report pursuant to Rule 72(b).
The facts of this case, as recited in the magistrate judge's report and as contained in the evidence of record, are as follows. Kay J. Kimble was the owner of a checking account and three certificates of deposit at F&M Bank. The CDs permitted premature withdrawal with a penalty. Each CD was payable on death to plaintiff and his brother. See Dkt. # 26-1. Kimble was not a signatory on the CDs but was an authorized signer on the checking account. See Dkt. # 26-1, 26-2. A power of attorney had been on file with the bank but was cancelled in writing in October 2008.
In April 2010, the bank received a fax purporting to be from Kay Kimble requesting a transfer of funds. There was no original signature documenting the request. See Dkt. # 26-4 at 27. In response, the bank sent Kay Kimble a withdrawal slip for signature and noted someone would be calling her to verify the transaction. See Dkt. # 26-4 at 28. The slip was returned and signed; however, the signature did not match the signature on file for Kay Kimble.
On April 16, 2010, the bank received a faxed copy of a power of attorney dated June 2, 2009, naming plaintiff as attorney-in-fact. This power of attorney, however, does not contain an original signature from Kay Kimble. Nor was it notarized. See Dkt. # 26-3. Accordingly, the bank declined to honor the request for funds. In a letter to plaintiff dated April 16, 2010, Darlene Sites wrote on behalf of the bank:
I received the fax today concerning the Power of Attorney naming you as Attorney-in-Fact for your mother. However, we must have the original form with Kay's signature and it must be notarized.
Considering the circumstances, I will not be able to make the withdrawal as she has requested until I speak with her in person. Please ask her to call me or ...