United States District Court, S.D. Georgia, Statesboro Division
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is Defendant's Motion for Summary Judgment.
(Doc. 7.) The Clerk has given Plaintiffs notice of the
summary judgment motion and the summary judgment rules, of
the right to file affidavits or other materials in
opposition, and the consequences of default. (Doc. 8.)
Therefore, the notice requirements of Griffith v.
Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per
curiam), have been satisfied. Plaintiffs have failed to
respond to Defendant's motion for summary judgment; with
the time for filing materials in opposition having expired,
the motion is ripe for consideration. Thus, Defendant's
motion is deemed unopposed. LR 7.5, SDGa. ("Failure to
respond within the applicable time period shall indicate that
there is no opposition to a motion."). For the following
reasons, Defendant's motion is GRANTED.
case presumably revolves around Defendant Wells Fargo
Principal Lending, LLC's "processing" of
Plaintiffs' mortgage loan application. (Doc. 1, at 5.) On
August 18, 2016, Plaintiffs initiated this action in the
Magistrate Court of Bulloch County, Georgia, alleging that
Defendant violated the Equal Credit Opportunity Act
("ECOA"), 15 U.S.C. § 1961 et seg. and
Georgia's Fraudulent Misrepresentation Statute, O.C.G.A.
§ 23-2-52. (Id.) Defendant subsequently removed
Plaintiffs' complaint to this Court. (Doc. 1.) On January
13, 2017, Defendant served a request for admission, pursuant
to Federal Rule of Civil Procedure 36. (Howard Aff., Doc.
7-2, ¶ 3.) Plaintiffs did not answer or object to
Defendant's request within thirty days. (Id.)
Defendant subsequently moved for summary judgment on November
29, 2017. (Doc. 7.) Plaintiffs have failed to respond to
Defendant's motion and have apparently not participated
in this case since its removal.
motion for summary judgment will be granted if there is no
disputed material fact and the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). Facts are material if
they could affect the results of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) .
The court must view facts in the light most favorable to the
non-moving party and draw all inferences in its favor.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The movant initially
bears the burden of proof and must demonstrate the absence of
a disputed material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) . The movant must also show no
reasonable jury could find for the non-moving party on any of
the essential elements. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) . The movant
may meet this standard by showing "that an adverse party
cannot produce admissible evidence to support the fact."
Fed.R.Civ.P. 56(c) (1) (B) .
movant carries its burden, the non-moving party must come
forward with significant, probative evidence showing there is
a material fact in dispute. Fitzpatrick, 2 F.3d at
1116. The non-movant must respond with affidavits or other
forms of evidence provided by Federal Rule of Civil Procedure
56. Id. at 1116 n.3. The non-movant cannot survive
summary judgment by relying on its pleadings or conclusory
statements. Morris v. Ross, 663 F.2d 1032, 1033-34
(11th Cir. 1981). After the non-movant has met this burden,
summary judgment is granted only if "the combined body
of evidence is still such that the movant would be entitled
to a directed verdict at trial - that is, such that no
reasonable jury could find for the non-movant."
Fitzpatrick, 2 F.3d at 1116.
preliminary matter, the Court must decide whether Defendant
satisfied its burden of showing the absence of a material
fact. Defendant supports its motion with the Request for
Admission it served on
Plaintiffs.”[R]equests for admissions are
automatically deemed admitted if not answered within 30 days,
and that the matters therein are conclusively established
unless the court on motion permits withdrawal or amendment of
the admissions." United States v. 2204 Barbara
Lane, 960 F.2d 126, 129 (11th Cir.1992) (internal
quotations omitted). Nevertheless, a party may not request an
admission of a legal conclusion. In re Tobkin, 578
Fed.Appx. 962, 964 (11th Cir. 2014) .
question in Defendant's Request for Admission is a legal
conclusion that cannot be admitted through Rule 36.
(See Request for Admission, Doc. 7-3, ¶¶
1-10.) Yet Defendant also points out that there is no
evidence in the record to support Plaintiffs' claims. By
doing so, Defendant has satisfied its burden of showing that
there is no genuine issue of fact. Fed. R. 56(c)(1)(B) (the
moving party's burden may be satisfied by showing
"that an adverse party cannot produce admissible
evidence to support the fact."). Accordingly, the burden
has shifted to Plaintiffs to support the essential elements
of their claims with affirmative evidence.
complaint includes an allegation that Defendant violated
Georgia's Fraudulent Misrepresentation Statute, O.C.G.A.
23-2-52 and the ECOA. (Doc. 1, at 5.) Because neither claim
is supported by evidence in the record, summary judgment is
Plaintiffs' Fraudulent Misrepresentation Claim
state a claim for fraudulent misrepresentation, the plaintiff
must prove:” (1) that the defendant made
representations; (2) that at the time he knew they were
false; (3) that he made them with the intention and purpose
of deceiving the plaintiff; (4) that the plaintiff relied on
the representations; and (5) that the plaintiff sustained the
alleged loss and damage as the proximate result of their
having been made." Bacote v. Wyckoff, 310
S.E.2d 520, 523 (Ga. 1984). Here, Plaintiffs have failed to
provide evidence for any of these elements. Because there is
no evidence in the record to support any element of
Plaintiffs' fraudulent misrepresentation claim, summary
judgment is appropriate.
Plaintiffs' Equal Credit ...