Opinion
Case No. C-1-01-359
July 15, 2002
ORDER
This matter is before the Court on Plaintiffs Motion for Summary Judgment (Doc. 29), Defendants First Security Mortgage Corporation and Bill Dutton's Motion for Summary Judgment (Doc. 30), Defendant Washtenaw Mortgage Company's Motion for Summary Judgment on All Claims (Doc. 31), Defendant Washtenaw Mortgage Company's Brief in Opposition to Plaintiffs Motion for Summary Judgment (Doc. 32), Defendants First Security Mortgage Corporation and Bill Dutton's Response to Plaintiffs Motion for Summary Judgment (Doc. 33), Defendant Joe Burnside's Motion to Dismiss and Response to Motions for Summary Judgment and Responses (Doc. 34), Plaintiffs Motion Contra to Defendant Joe Burnside's Motion to Dismiss (Doc. 35), Plaintiffs Motion Contra to Defendant Washtenaw's Motion for Summary Judgment (Doc. 36), Plaintiffs Motion Contra to Motion for Summary Judgment of Defendants First Security Mortgage Corporation and Bill Dutton (Doc. 37), and Defendant Washtenaw Mortgage Company's Reply Brief in Support of Its Motion for Summary Judgment on All Claims (Doc. 38).
Plaintiff brings this action against Defendant Bill Dutton in his individual capacity, as well as his capacity as an agent of First Security Mortgage Corporation. However, there is no evidence that Defendant Bill Dutton has been personally served with a summons and copy of the Complaint. Therefore, this decision relates only to Defendant Bill Dutton in his capacity as agent for First Security Mortgage Corporation.
BACKGROUND
Plaintiff has brought this action alleging violations of 15 U.S.C. § 1635 of the Truth in Lending Act ("TILA") and supplemental state law claims of fraud, intentional and negligent infliction of emotional distress. Plaintiff brings this action against her ex-husband, Joe Burnside, the Washtenaw Mortgage Company ("Washtenaw"), which lent Defendant Burnside money secured by a mortgage on the Burnside's property at 1155 Gleim Rd., Wheelersburg, Ohio, First Security Mortgage Corporation ("First Security"), the broker which handled the transaction for Washtenaw Mortgage Company, and its agent, Bill Dutton who was physically present during the closing of the transaction at issue.
Plaintiff and Defendant Burnside were divorced in 1994. (Doc. 31, Ex. A, Deposition of Susan Burnside at 8-9, attached). Pursuant to their separation agreement, they agreed to maintain joint ownership of their marital home, although Defendant Burnside would reside in the home with the couple's children and continue to make the mortgage payments on the home. (Id. at 10-13, 107; Ex. B, Divorce Decree at ¶ 8 of Separation Agreement, attached). The divorce settlement also provided that should the Defendant Burnside wish to refinance the mortgage on the residence, it must be done by agreement of the parties. (Id. at ¶ 8(d); Plaintiff depo. at 145). In 1996, Defendant Burnside refinanced the home, with Plaintiffs consent, by obtaining a note from Desco Federal Credit Union in the amount of $58,000, secured by a mortgage on the home. (Doc. 31, Ex. C; Plaintiffs depo. at 22, 30-31). Plaintiff was not obligated in the loan but was named as a party to the mortgage because of her joint ownership in the home. (Doc. 31, Ex. D, Open-End Mortgage at 6, Plaintiff depo. at 29).
In November, 2000, Defendant Burnside contacted Plaintiff and asked her to consent to another refinancing of the marital home. (Plaintiff depo. at 20-21, 50, 136). Plaintiff agreed to the refinancing and attended a closing in Proctorville, Ohio on the evening of November 6, 2000. (Id. at 21, 89). First Security assisted Defendant Burnside in completing his application for a loan and secured a lender, Washtenaw Mortgage Company, which supplied all the loan documents which ultimately funded the loan. (Doc. 30 Ex. A, Affidavit of T. Edward Sexton at ¶¶ 4, 5, attached). Washtenaw sent its standard loan package to the closing attorney, Klein Hall. (Id.). At the closing, Defendant Burnside signed a new note borrowing $65,000 from Washtenaw. (Doc. 31, Ex. E, Note, attached). Both Plaintiff and Defendant Burnside signed a mortgage securing the note with their interest in the marital home. (Doc. 31, Ex. F, Mortgage, attached).
Defendant Washtenaw does not specifically address these facts in any of its memoranda regarding summary judgment. Thus, we find these facts to be undisputed. Defendant Washtenaw does contest that it or its agent physically handed the Notice of Right to Cancel to Plaintiff.
At the closing, Defendant Dutton gave Plaintiff a "Notice of Right to Cancel" form, which stated that she had three days in which to cancel the transaction. (Plaintiff depo. at 89; Doc. 31, Ex. G, Notice, attached). Plaintiff telephoned Defendant Burnside the following day, November 7, 2000, and asked him about the details of the transaction. (Plaintiff depo. at 155). Unsatisfied with the answers, she executed the cancellation form on November 8, 2000, and mailed it to Washtenaw by next day mail. (Id. at 155-56; Doc. 31, Ex. I, Letter dated December 15, 2000 from Plaintiffs counsel).
Plaintiff dated this notice November 6, 2000, although she testified that she executed it on November 8, 2000. (Doc. 31, Ex. H).
The cancellation was not processed immediately and the funds were disbursed to Defendant Burnside despite Washtenaw's receipt of the notice. Washtenaw paid $50,133.30 directly to Desco Federal Credit Union, in satisfaction of Defendant Burnside's previous note, and $1,770.08 directly to First USA Bank, to pay off Defendant Burnside's credit card. The remainder of the loan, $9,261.62, was paid directly to Defendant Burnside. (Doc. 31, Ex. J, January 18, 2001 letter from Washtenaw's counsel). Once the cancellation form was processed by Washtenaw, it informed Plaintiff and Defendant Burnside that it would be willing to honor the rescission if the funds were repaid. Id. All of the parties refused to return the funds. (Id.).
On January 22, 2001, Washtenaw sent Plaintiff a letter informing her that it had become aware that Plaintiff was not living in the home and informing her that her rescission was ineffective as the right to rescind the transaction is granted only to resident homeowners under federal law. (Doc. 31, Ex. K, January 22, 2001 letter from Washtenaw's counsel).
OPINION
A motion for summary judgment should be granted if the evidence submitted to the court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323.
A party may move for summary judgment on the basis that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law. In response to a summary judgment motion properly supported by evidence, the nonmoving party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. Sixty Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987); Harris v. Adams, 873 F.2d 929, 931 (6th Cir. 1989). Conclusory allegations, however, are not sufficient to defeat a properly supported summary judgment motion. McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990). The non-moving party must designate those portions of the record with enough specificity that the Court can readily identify those facts upon which the non-moving party relies. Karnes v. Runyon, 912 F. Supp. 280, 283 (S.D. Ohio 1995) (Spiegel, J.). "[A]fter a motion for summary judgment has been filed, thereby testing the resisting party's evidence, a factual issue may not be created by filing an affidavit contradicting [one's own] earlier deposition testimony." Davidson Jones Dev. Co. v. Elmore Dev. Co., 921 F.2d 1343, 1352 (6th Cir. 1991).
The trial judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 249-50. In so doing, the trial court does not have a duty to search the entire record to establish that there is no material issue of fact. Karnes, 912 F. Supp. at 283. See also Street v. J.C. Bradford Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989); Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988). The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 249-50.
If, after an appropriate time for discovery, the opposing party is unable to demonstrate a prima facie case, summary judgment is warranted. Street, 886 F.2d at 1478 (citing Celotex and Anderson). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Truth in Lending
Defendant First Security moves the Court for summary judgment arguing that it is entitled to judgment as a matter of law because it is not a "creditor" as defined by TILA and thus, is not subject to said statute's requirements. Therefore, the question before the Court is whether First Security Mortgage Corporation is a "creditor" under TILA, and thus, subject to its provisions.
The term "creditor" under TILA is defined as a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of the indebtedness . . . .15 U.S.C. § 1602 (f). Regulation Z defines a creditor as
a person (A) who regularly extends consumer credit that is subject to a finance charge or is payable by written instrument in more than four installments (not including a down payment), and (B) to whom the obligation is initially payable[,] on the face of the note . . .12 C.F.R. § 226.2 (a)(17).
In the present case, Plaintiff has offered no evidence that Defendant First Security is a "creditor" as defined by TILA. Plaintiff claims that First Security "held itself out to plaintiff as a creditor" and as the person to whom the debt arising from the consumer credit transaction was initially payable. However, the evidence does not support Plaintiffs arguments. The documents to which Plaintiff directs the Court do not indicate that First Security "regularly extends credit, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required." The Federal Truth in Lending Disclosure Statement merely reflects that it was prepared by First Security Mortgage Corp. and nothing else. Moreover, the Notice of Right to Cancel, which is at the crux of this matter, in which Plaintiff apparently placed much stock, clearly indicates Washtenaw Mortgage Company as the lender and the party to which the cancellation notice must be mailed. (Doc. 29, Ex. B). That Plaintiff mailed her cancellation notice to Washtenaw indicates that she was, in fact, aware that Washtenaw was the party loaning said funds to Defendant Burnside and the party holding the mortgage at issue. Indeed, in face of Plaintiffs acknowledgment in her Motion for Summary Judgment that First Security "acted as a broker for Washtenaw Mortgage Company," Plaintiffs argument to the contrary appears disingenuous at best. (Doc. 29 at 2).
Additionally, Plaintiff has failed to show that First Security meets the second part of TILA's definition for "creditor," namely that First Security is the person to whom the debt is initially payable "on the face of the evidence of the indebtedness." There is no document indicating that First Security is the party to whom the debt was initially payable. In fact, the promissory note, which was signed by Defendant Burnside, clearly reflects that Washtenaw is the party to whom the debt was initially payable. (Doc. 31, Ex. E, Note, attached). Thus, we find that Defendant First Security Mortgage Corporation was merely a broker for Washtenaw Mortgage Company and not a creditor under TILA. See Noel v. Fleet Finance, Inc., 971 F. Supp. 1102 (E.D. Mich. July 21, 1997). Accordingly, the Motion for Summary Judgment by Defendants First Security Mortgage Corporation and Bill Dutton, as an agent of First Security (Doc. 30), is hereby granted with respect to Plaintiffs claims under the Truth in Lending Act, 15 U.S.C. § 1601 et seq.
Next, Defendant Washtenaw asserts that summary judgment in its favor against Plaintiff is appropriate as Plaintiff is not an "obligor" for purposes of TILA and thus the right to rescind granted by this statute does not extend to her.
Under the provisions of TILA, an obligor is granted a right of rescission for consumer credit transactions in certain circumstances. 15 U.S.C. § 1635 provides in pertinent part that:
. . . in the case of any consumer credit transaction . . . in which a security interest . . . is . . . acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction . . . .15 U.S.C. § 1635 (a). See also 12 C.F.R. § 226.15 (a)(1)(i). Plaintiff has failed to establish that she is entitled to this right under the provisions of TILA. It is undisputed that Plaintiff is not financially obligated to Washtenaw, as Defendant Burnside is solely responsible for the mortgage payments on the home. (Doc. 31, Ex. E; Plaintiffs depo. at 117). Plaintiff is not the person to whom credit was extended, and thus, cannot be considered an "obligor" under the statute. Even assuming that, as Plaintiff argues, her indebtedness to Washtenaw lies in her interest in the collateral which is encumbered by the mortgage at issue, it is undisputed that Plaintiff has not used the home as her principal dwelling since her 1994 divorce. Thus, we find that 15 U.S.C. § 1635 does not grant a right of rescission to Plaintiff. See Simmons v. American Budget Plan, Inc., 386 F. Supp. 194,200 (E.D.La. 1974) (right of rescission available to party when obligated to pay loan); see also Scott v. Long Island Savings Bank, 937 F.2d 738, 740-41 (2d Cir. 1991) (where plaintiff lived in home for two months and never paid on mortgage, it was not his "principal dwelling" for purposes of 15 U.S.C. § 1635 (a)); Glover v. Doe Valley Dev. Corp., 408 F. Supp. 699, 706 (W.D.Ky. Nov. 20, 1975) (property bought for investment not plaintiffs' "principal dwelling" for purposes of statute). Plaintiff concedes this point in both her motions (See Docs. 29, 32), but argues that Washtenaw conferred that right upon Plaintiff when she was presented with the Notice of Right to Cancel. We find this argument unavailing and agree with Washtenaw's position that it cannot confer upon Plaintiff a right to which she is not entitled under the statute. For these reasons, we find that Plaintiff does not have the right to rescind the transaction pursuant to 15 U.S.C. § 1635 and Defendant Washtenaw did not violate TILA by refusing to accept Plaintiffs attempted rescission. Accordingly, we find that Defendant Washtenaw is entitled to judgment as a matter of law with respect to Plaintiffs claims for violations of the Truth in Lending Act, 15 U.S.C. § 1601, et seq.
Fraud
Plaintiff also claims that Defendants acted fraudulently "in inducing [her] to enter into the loan transaction." Plaintiff claims that Defendants Dutton and First Security acted fraudulently in giving Plaintiff the Notice of Right to Cancel when they allegedly knew that they were not required to do so under TILA. Plaintiff claims that Defendant Washtenaw also acted fraudulently in representing, through the Notice of Right to Cancel, that she had the right to rescind the transaction. Finally, Plaintiff claims that Defendant Burnside unduly pressured her into entering into the transaction.
To prevail on her fraud claim, Plaintiff must prove:
(1) a representation or concealment of a fact; (2) which was material to the transaction at hand; (3) made falsely, with knowledge of the falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) a resulting injury caused by the reliance.
W.D.I.A. Corp. v. McGraw-Hill, Inc., 34 F. Supp.2d 612, 626 (S.D. Ohio 1998) (citing Burr v. Board of County Commissioners, 491 N.E.2d 1101 (Ohio 1986)).
With regard to Defendant Washtenaw, Plaintiff has completely failed to carry her burden. She alleges that Washtenaw misrepresented her right to rescind the transaction when Defendant Dutton, acting as Washtenaw's agent, gave her the Notice of Right to Cancel. Regardless of whether or not this constitutes a representation by Washtenaw, Plaintiff cannot show that this "representation" was made with knowledge of its falsity or with such reckless disregard as to its truthfulness that knowledge can be inferred. Indeed, the evidence shows that no agent from Washtenaw was present at the closing. Defendant Dutton, on behalf of Defendant First Security, handled the closing. Under § 1635, it is the obligor who has the right to rescind the transaction where the property is used as the principal dwelling "of the person to whom credit is extended." 15 U.S.C. § 1635 (a) (emphasis added). While it is true that Washtenaw had the duty to make reasonable efforts to ascertain whether the person to whom the credit was extended was using the home as a primary residence, Plaintiff was not the obligor and thus, Washtenaw was required to ascertain only whether, Defendant Burnside, the obligor, used the home as his primary residence. With regard to the fourth element, Plaintiff has offered no evidence as to Washtenaw's intent to mislead Plaintiff into relying on the representation. Furthermore, although Plaintiff contends that she relied upon this representation of her right to rescind and that she never would have agreed to the transaction without said right, she clearly testified that she attended the closing with the intention of signing the mortgage, before she was given the Notice of Right to Cancel. (Plaintiffs depo. at 92-94). Thus, Plaintiff has not shown that she justifiably relied on the representation of her right to rescind.
Plaintiffs fraud claim also fails as it relates to Defendant First Security. While First Security disputes that it made any representations, false or otherwise, to Plaintiff in connection with her rights under the law and said documents, it concedes that its employee, Bill Dutton, may have told Plaintiff that she had the right to rescind the loan. It is also undisputed that Defendant Dutton, as First Security's agent, presented Plaintiff with the Notice of Right to Cancel. However, Plaintiff has offered no evidence that Defendant Dutton did so with knowledge that Plaintiff did not have said right. Moreover, Plaintiff has offered no evidence of Defendant First Security's intent to mislead her. As discussed above, Plaintiff has failed to show that she justifiably relied on this statement when agreeing to the transaction. As such, this Court finds that Plaintiff has offered no evidence that Defendants' statement to Plaintiff that she had the right to rescind the transaction was anything more than an honest mistake.
For these reasons, we find that summary judgment is appropriate in favor of Defendants Washtenaw, First Security and Bill Dutton, as an agent for First Security, with respect to Plaintiffs claims for fraud.
Intentional Infliction of Emotional Distress
Plaintiff also alleges that the conduct of Defendants with respect to the entire transaction amounts to the intentional infliction of emotional distress. In order to recover for intentional infliction of emotional distress, Plaintiff must prove that: (1) the actor either intended to cause emotional distress or knew or should have known that the actions taken would result in serious emotional distress; (2) the actor's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered utterly intolerable in a civilized community; (3) the actor's actions were the proximate cause of the victim's psychic injury; and (4) the mental anguish suffered by the victim is serious and of a nature that no reasonable person could be expected to endure it. Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, and Helpers of America, 453 N.E.2d 666, 671 (Ohio 1983); Condon v. Body, Vickers, Daniels, 649 N.E.2d 1259, 1265 (Ohio Ct.App. 1994).
The second element has been the subject of interpretation. For example, Crawford v. ITT Consumer Financial Corp., 653 F. Supp. 1184 (S.D. Ohio 1986); Polk v. Yellow Freight System, 801 F.2d 190 (6th Cir. 1986); Neal v. Hamilton County, 87 Ohio App.3d 670, 622 N.E.2d 1130 (Ohio Ct. App. 1993); and Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759 (Ohio 1983), all involved some judicial line-drawing. "[S]erious embarrassment and humiliation, as well as psychological and physical problems do not, as a matter of law, state a viable claim for intentional infliction of emotional distress." Crawford, 653 F. Supp. at 1188. In the present case, the thresholds of outrageous conduct and serious mental anguish have not been crossed. Rather, the evidence fails to demonstrate that Defendants' conduct was extreme and outrageous. Furthermore, any emotional distress suffered by Plaintiff is complicated by the fact that at least to some degree, Plaintiffs emotional damage may have been caused by past events. Accordingly, we find that Defendants Washtenaw, First Security and Bill Dutton are entitled to summary judgment with respect to Plaintiffs claim for intentional infliction of emotional distress.
As a basis for her emotional distress claims, Plaintiff claims that her relationship with her children has suffered as a result of Defendants' actions. However, Plaintiff testified that her relationship with her children was already strained prior to this transaction due to her divorce from their father. She testified that her children were aware of her adulterous relationship with her current boyfriend, were bitter about the divorce and chose to remain with their father. (Plaintiffs depo. at 36-37, 39-40, 108-111).
Negligent Infliction of Emotional Distress
Plaintiff also brings a claim for negligent infliction of emotional distress against defendants for the conduct described above. A claim of negligent infliction of emotional distress is limited to instances "where the plaintiff has either witnessed or experienced a dangerous accident or appreciated the actual physical peril." Halton v. Great Clips, Inc., 94 F. Supp.2d 856, 872 (N.D. April 20, 2000) (quoting Heiner v. Moretuzzo, 652 N.E.2d 664, 669 (Ohio 1995)). Moreover, "it is well settled that a claim for negligent infliction of emotional distress can be recovered in Ohio where `a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.'" (Id.) (quoting Paugh v. Hanks, 451 N.E.2d 759, 765 (Ohio 1983)).
In the present case, Plaintiff has failed to produce any evidence that she ever witnessed or experienced physical peril, or appreciated the actual physical peril. As such, summary judgment in Defendants' favor is appropriate with respect to Plaintiffs negligent infliction of emotional distress claim.
Defendant Joe Burnside's Motion to Dismiss
Defendant Joe Burnside moves the Court for dismissal of Plaintiffs claims against him pursuant to Fed.R.Civ.P. 12(b)(6). Defendant Burnside argues that, because he is not a "creditor" under TILA, he is not subject to the provisions of said statute and Plaintiffs Complaint fails to state a claim upon which relief can be granted. Since Defendant's Motion presents material outside the pleading, it shall be considered purely as a Motion for Summary Judgment in accordance with Fed.R.Civ.P. 12(b).
15 U.S.C. § 1640 (a) provides in pertinent part that "any creditor who fails to comply . . . is liable . . ." Plaintiff has not alleged in any of her pleadings that Defendant Burnside is a creditor under TILA (See Doc. 1, Complaint, ¶ 5). Likewise, Plaintiff makes no attempt to prove the Defendant is a creditor. Plaintiffs only argument as to why her Complaint should not be dismissed against this defendant is that he is a "co-debtor" with Plaintiff and a "necessary party to the loan transaction."
We find that Defendant is not a creditor under TILA and therefore, not subject to its provisions. (See discussion supra at 5-7). As such, Defendant Burnside is entitled to judgment as a matter of law with respect to Plaintiffs claim under TILA, 15 U.S.C. § 1601, et seq.
Fraud. Intentional and Negligent Infliction of Emotional Distress
Plaintiffs claims against Defendant Burnside can be summed up with her assertion that "Defendant Joe Burnside, took plaintiff to the offices of defendant, First Security Mortgage Corporation, where Bill Dutton, an agent/employee of First Security Mortgage Company, and defendant, Joe Burnside proceeded to unduly pressure plaintiff into entering a credit transaction . . ." (Complaint at ¶ 9).
Plaintiffs deposition testimony completely belies these allegations. Plaintiff specifically testified that her son, not Defendant, drove her to the closing. (Plaintiffs depo. at 83-84, 114). She further testified that she went to the closing voluntarily and that Defendant did not force her to attend the closing. (Id. at 114-16, 119). She further testified to one meeting with Defendant Burnside at her home during which he attempted to convince her to rescind her cancellation. (Plaintiffs depo. at 52). In light of the evidence presented, Plaintiff has failed to meet her burden of showing that Defendant's actions were fraudulent or constituted the intentional or negligent infliction of emotional distress as those claims are set forth above. (See discussion supra at 9, 11-12). Accordingly, Defendant Burnside is entitled to summary judgment with respect to Plaintiffs claims for fraud, intentional and negligent infliction of emotional distress.
IT IS THEREFORE ORDERED THAT:
1) Plaintiffs Motion for Summary Judgment (Doc. 29) is DENIED.
2) Defendants First Security Mortgage Corporation and Bill Dutton's Motion for Summary Judgment (Doc. 30) is GRANTED.
3) Defendant Washtenaw Mortgage Company's Motion for Summary Judgment (Doc. 31) is GRANTED.
4) Defendant Joe Burnside's Motion to Dismiss (Doc. 34) is GRANTED.