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Simons v. Wal-Mart Stores East, LP

United States District Court, D. South Carolina, Anderson/Greenvood Division

May 29, 2014

Brian Simons, Plaintiff,
Wal-Mart Stores East, L.P., and Bank of America, N.A., Defendants.


J. MICHELLE CHILDS, District Judge.

Plaintiff Brian Simons ("Simons") filed this action against Defendants Wal-Mart Stores East, L.P. ("Wal-Mart") and Bank of America, N.A. ("BOA") (collectively "Defendants") seeking monetary damages from Defendants after their alleged actions resulted in Simons' arrest and subsequent incarceration for one (1) night in jail.

This matter is before the court on a motion by BOA for partial summary judgment pursuant to Fed.R.Civ.P. 56 ("Rule 56 motion"). (ECF No. 132.) Simons opposes BOA's Rule 56 motion. (ECF No. 138.) For the reasons set forth below, the court GRANTS BOA's Rule 56 motion.


The facts as viewed in the light most favorable to Simons are discussed below.

At all times relevant to this action, Simons maintained a checking account with BOA. (See, e.g., ECF No. 138-6 at 5:4-8.) In the latter part of 2003, Simons moved from 811 Polo Road, Columbia, South Carolina 29223 to 2908 Padgett Road, Hopkins, South Carolina 29061, which relocation was known to BOA by at least March of 2004. (ECF No. 138-1 at 2 ¶ 2, 8.) On June 15, 2004, Simons ordered a box of new checks from BOA requesting that BOA print his new address on the checks and mail them to him in Hopkins, South Carolina. (ECF Nos. 138-1 at 3 ¶ 5, 138-5 at 4.) On or about June 16, 2004, Harland Clarke Corp., BOA's provider of personal checks, sent a box of checks to Simons' former address in Columbia, which checks were numbered 651-800 and contained the customer name and address of "Brian S. Simons, 811 Polo Rd. Apt. 1018, Columbia, S.C. 29223." (ECF Nos. 138-1 at 10, 138-5 at 4.) On July 16, 2004, Simons learned that the checks he ordered on June 15, 2004 were mailed to his former address. (ECF No. 138-1 at 3 ¶ 7.)

Simons alleges that an unidentified person presented the following three (3) misdirected checks to Wal-Mart at its store #624 in Newberry, South Carolina for the payment of goods and services: (a) check #730 in the amount of $210.86 used on October 12, 2004; (b) check #684 in the amount of $214.75 used on October 20, 2004; and (c) check #685 in the amount of $199.05 used on October 20, 2004. (ECF No. 108 at 4 ¶ 16.) Wal-Mart presented the checks to BOA for payment and BOA returned the checks to Wal-Mart with check #730 bearing the stamps "REFER TO MAKER" and "INSUFFICIENT FUNDS, " check #684 bearing the stamp "REFER TO MAKER, " and check #685 bearing the stamp "STOP PAYMENT."[1] (Id. at 5 ¶ 17.) After receiving the returned checks, Wal-Mart allegedly then sought and received warrants for Simons' arrest in Newberry County. (Id. at ¶ 18.)

On November 1, 2004, the Lexington County Sheriff's Department allegedly notified Simons that six (6) warrants had been issued for his arrest for issuing fraudulent checks. (ECF No. 108 at 3 ¶ 12.) On March 30, 2005, Simons completed an affidavit for BOA that identified the following checks as fraudulent: #710, #729, #732, #737, #746, #747, #719, and #720. (ECF No. 132-2.) On May 9, 2005, the Worthless Check Unit of the Lexington County Solicitor's Office sent letters to Wal-Mart, explaining that Simons had provided an affidavit of forgery and a police report and that forgeries were not within the scope of the Solicitor's Worthless Check Program. (ECF No. 138-9 at 14, 19, 24, 29, 34, 39, 44, 49.) The letters advised Wal-Mart to "contact law enforcement to initiate an investigation." (Id.)

Thereafter, Simons testified that he was arrested in 2010 and detained overnight at the Newberry County Jail for warrants related to bad checks #684, #685, and #730.[2] (ECF No. 138-6 at 11:14-23.)

On November 21, 2011, Simons filed an action in this court alleging claims against Wal-Mart and BOA for negligence and false imprisonment/arrest. (ECF No. 1.) On January 2, 2012, Simons moved to amend his complaint, which request was granted by the court on January 23, 2012. (ECF Nos. 20, 26, 27.) Thereafter, in order for the pleadings to conform to the evidence produced during discovery, Simons was granted leave by the court to file a third amended complaint on September 20, 2013, which pleading alleged claims against Wal-Mart for negligence and false imprisonment/arrest and against BOA for negligence and breach of contract. (ECF Nos. 101, 106, 108.)

After Defendants fully responded to the third amended complaint, BOA filed a Rule 56 motion as to specified damages sought by Simons and the claims against it for negligence and breach of contract regarding the mailing of checks to Simons' prior address. (ECF No. 132.) In its Rule 56 motion, BOA asserted that (1) Simons' negligence and breach of contract claims based on the mailing of the checks are barred by the three (3) year statute of limitations; (2) Simons' negligence claim as to the mailing issue fails because he cannot establish that the mailing of the checks to the wrong address caused his purported injuries; and (3) the evidence does not support claims by Simons for damages of lost income, economic loss, pecuniary loss, loss of wages and damage to his credit. (ECF No. 132-1 at 2.) Simons filed opposition to BOA's Rule 56 motion on February 3, 2014, to which BOA filed a reply in support of its Rule 56 motion on February 12, 2014. (ECF Nos. 138, 140.)

On April 29, 2014, the court held a hearing on the pending Rule 56 motion.[3] (ECF No. 147.)


A. Summary Judgment ...

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