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Carl. L. Jimena v. Ubs Ag Bank

June 24, 2011

CARL. L. JIMENA,
PLAINTIFF,
v.
UBS AG BANK, INC., SWITZERLAND HEADQUARTERS; UBS AG BANK, INC., MANHATTAN, NEW YORK BRANCH; UBS FINANCIAL SERVICES, INC., BAKERSFIELD, CALIFORNIA BRANCH; AND UBS FINANCIAL SERVICES, INC., WEEHAWKEN, NEW JERSEY BRANCH; CLIVE STANDISH,
DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER RE PLAINTIFF‟S MOTION TO VACATE, PLAINTIFF‟S MOTION IN LIMINE, AND DEFENDANT UBS AG‟S MOTION FOR SUMMARY JUDGMENT (DOC. 304, 305, 311)

I. INTRODUCTION

Plaintiff Carl L. Jimena ("Plaintiff") proceeds with this action for fraud, violation of state and federal commercial codes, and intentional tort.

Before the court is Defendant UBS AG‟s ("UBS") renewed motion for summary judgment (Doc. 311). Plaintiff filed an opposition, to which UBS replied (Doc. 314). The motion was heard June 20, 2011.

Also before the court are two motions taken under submission without hearing: (1) Plaintiff‟s motion to vacate (Doc. 304), and (2) Plaintiff‟s motion in limine (Doc. 305). UBS filed oppositions to both motions (Docs. 309, 310).

II.FACTUAL BACKGROUND

Plaintiff alleges that he was defrauded in a variant of the "Nigerian advance fee scheme" by Clive Standish*fn1 , then Chief Financial Officer of UBS, who allegedly sent Plaintiff e-mails from clive_standish@yahoo.com and customerservices@privatelcientsubs.cjb.net. From these two e-mails, Clive Standish allegedly offered to transfer $19 million to Plaintiff‟s bank account by convincing Plaintiff to wire $51,000 via Washington Mutual Bank, Bank of New York, and UBS to an account at a fourth bank, HSBC, allegedly to satisfy a nonexistent "Anti Drug/Terrorist Clearance" fee required for money transfers from Nigeria. Plaintiff alleges he wired $51,000 to the banks. Plaintiff never received the $19 million. Plaintiff alleges that UBS is in possession of his $51,000 and the $19 million allegedly wired to UBS by an alleged Nigerian bank, Standard Trust Bank PLC.

III.MOTION FOR SUMMARY JUDGMENT

A.Introduction

UBS moves for summary judgment on all of Plaintiff‟s remaining claims. Doc. 311. UBS contends that Plaintiff has not adduced any cognizable evidence to support his claims, and cannot meet his burden under Rule 56. Plaintiff filed an opposition (Doc. 313), which incorporates by reference: (1) Plaintiff‟s motion in limine (Doc. 305); (2) motion to vacate (Doc. 304); (3) opposition to UBS‟s motion for summary judgment (Doc. 195); (4) opposition to UBS‟s supplemental brief in support of motion for summary judgment (Doc. 253); (5) amended opposition to UBS‟s supplemental brief in support of summary judgment (Doc. 261); and (6) third supplemental brief to Plaintiff‟s opposition to UBS‟s motion for summary judgment (Doc. 288).*fn2 UBS filed a reply. Doc. 314.

B.Disputed Facts

UBS contends that any individual can sign up for a Yahoo.com email account bearing the name [FIRST NAME]_[LAST NAME]@yahoo.com without providing any evidence that he or she is the person whose name is used in the email address, and without providing any evidence that the person whose name is used has consented to the use of the name. UBS also asserts that if a user types privateclientsubs.cjb.net into a web browser, the user is directed to the home page for www.cjb.net, a service that offers subscribers the ability to (a) create email addresses that read [NAME]@[ENTITY].cjb.net, and (b) create "alias" domain names that read [ENTITY].cjb.net that redirect a web browser to some other, unrelated internet domain. Plaintiff disputes the bases for UBS's contentions, i.e., the declaration of its counsel, Jacob Kreilkamp.

UBS contends that all of Plaintiff's allegations regarding the representations of UBS are based on unauthenticated and hearsay emails Plaintiff received bearing the addresses clive_standish@yahoo.com and customerservices@privateclient subs.cjb.net. UBS further contends that no admissible evidence has been offered to support a finding that $19,000,000 was wired from Standard Trust Bank PLC to UBS AG as is alleged in the Third Amended Complaint, or to support a finding that UBS holds any funds belonging to Plaintiff. Finally, UBS asserts no person in his right mind could reasonably expect to receive $19 million in return for a $51,000 fee payment, and the inherent implausibility of the scheme should have put Plaintiff on notice that the scheme was a fraud.

C.Legal Standard

Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56.

The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotation marks omitted). A fact is material if it could affect the outcome of the suit under the governing substantive law; "irrelevant" or "unnecessary" factual disputes are not considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).

If the moving party would bear the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In contrast, if the non-moving party bears the burden of proof on an issue, the moving party can prevail by "merely pointing out that there is an absence of evidence" to support the non-moving party's case. Id.

When the moving party meets its burden, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 255. Rather, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. Only admissible evidence is considered in deciding a motion for summary judgment. Soremekun, 509 F.3d at 984. "Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Id.

D.Discussion

UBS moves for summary judgment based on the contention that Plaintiff has not produced any admissible evidence.

1.Clive Standish E-mails

Plaintiff‟s claims against UBS rest primarily on e-mails purportedly sent by "Clive Standish" from two e-mail addresses: clive_standish@yahoo.com and customerservices@privatelcientsubs.cjb.net. See Plaintiff‟s Exhibits 6-8, 12-13, 19-20, 25-58 (together, "Standish E-mails").

a)Authenticity

Only admissible evidence is considered on a motion for summary judgment. Orr v. Bank of Am. , NT & SA , 285 F.3d 764, 773 (9th Cir. 2002); see Fed. R. Civ. P. 56(e). Authentication is a "condition precedent to admissibility," and can by satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). At the summary judgment stage, the focus is not on the admissibility of the ...


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