United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE
diversity matter is before the Court on plaintiffs Dennis and
Sheila Hammonds' (“plaintiffs” or “the
Hammonds”) motion for summary judgment against
remaining defendant Amber Lewis, a/k/a Amber D. Black, a/k/a
Amber D. Woodward. Plaintiffs filed suit against defendants
Mueller Prost LC, Pine Lake Corporation d/b/a Financial
Support Services, Midland States Bancorp, Inc., and Amber
Lewis. The corporate defendants settled with plaintiffs and
the claims against those defendants have been dismissed. In
the First Amended Complaint, plaintiffs assert claims against
Lewis for fraud (Count XIV), breach of fiduciary duty (Count
XV), conversion (Count XVI), and replevin (Count XVII). Lewis
has failed to respond to the motion for summary judgment and
the time to do so has passed. For the following reasons, the
motion will be granted.
standards applicable to summary judgment motions are well
settled. Pursuant to Federal Rule of Civil Procedure 56(a), a
court may grant a motion for summary judgment if all of the
information before the court shows “there is no genuine
dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
initial burden is placed on the moving party. City of Mt.
Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838
F.2d 268, 273 (8th Cir. 1988) (the moving party has the
burden of clearly establishing the non-existence of any
genuine issue of fact that is material to a judgment in its
favor). Once this burden is discharged, if the record shows
that no genuine dispute exists, the burden then shifts to the
non-moving party who must set forth affirmative evidence and
specific facts showing there is a genuine dispute on a
material factual issue. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
the burden shifts, the non-moving party may not rest on the
allegations in its pleadings, but by affidavit and other
evidence must set forth specific facts showing that a genuine
issue of material fact exists. Fed.R.Civ.P. 56(c);
Herring v. Canada Life Assur. Co., 207 F.3d 1026,
1029 (8th Cir. 2000); Allen v. Entergy Corp., 181
F.3d 902, 904 (8th Cir. 1999).
Court adopts the Statement of Undisputed Material Facts
presented by plaintiffs with their Motion for Summary
Judgment, and incorporates it herein by this reference. The
plaintiffs' statement of facts is supported by the
plaintiffs' declarations, defendant Lewis's responses
to plaintiffs' discovery requests, letters written by
Lewis, and many bank records and credit card statements.
Further, defendant Lewis has not disputed plaintiffs'
statements of the facts as she failed to respond to the
Motion for Summary Judgment. Because Lewis failed to submit a
statement of material facts as to which she contends a
genuine issue exists, as required by Local Rule 4.01(E), for
purposes of this motion defendant is deemed to have admitted
all facts which were not specifically controverted. See
Deichmann v. Boeing Co., 36 F.Supp.2d 1166, 1168 (E.D.
Mo. 1999); see also Roe v. St. Louis Univ., 746 F.3d
874, 881 (8th Cir. 2014) (if an opposing party does not raise
objections to a movant's statement of facts as required
by Local Rule 4.01(E), “a district court will not abuse
its discretion by admitting the movant's facts.”);
Ridpath v. Pederson, 407 F.3d 934, 936 (8th Cir.
2005) (where plaintiff did not controvert defendant's
statement of material fact, it was deemed admitted under E.
D. Mo. Local Rule 4.01(E)).
summary, plaintiff Dennis Hammond owned an investment
advisory firm, Hammond Associates, which employed defendant
Lewis from 2002 through January 2011. During that time, and
until May 2011, the Hammonds employed defendant Lewis to
assist with the management of their family finances. In that
capacity, Lewis was responsible for paying bills and
completing other tasks, and was required to act in the
Hammonds' best interests in handling their finances.
Lewis had access to certain of the Hammonds' bank
accounts during this time, but was not authorized to charge
funds from the Hammonds' accounts for her personal use or
to receive payment from their personal bank accounts for
services she rendered to the Hammonds.
establish that without their knowledge, defendant Lewis was
withdrawing money from their personal accounts both during
and after her employment, through the unauthorized writing of
checks on their accounts, ATM withdrawals, miscellaneous
purchases, payment transfers directly to her bank accounts,
and payments to her Capital One credit card. Lewis admitted
paying her credit card, rent, personal bills, and personal
phone bills with funds from the Hammonds' accounts. Lewis
never disclosed to the Hammonds that she was withdrawing
funds from their accounts for her personal use, and
represented that she was at all times performing her job by
monitoring, handling and accessing their bank records in
their interest. Lewis's unauthorized activity was not
detected until April 15, 2014 when Capital One inquired
concerning a third party payment from one of the
Hammonds' bank accounts to Lewis's credit card.
Thereafter, the Hammonds discovered that Lewis committed 213
unauthorized withdrawals, transfers and charges amounting to
$297, 778.01 she took that belonged to the Hammonds.
review of plaintiffs' Motion, the Court finds summary
judgment to be proper. The material facts are undisputed,
plaintiffs' arguments are well founded, and defendant
Lewis has provided no arguments or evidence to the contrary.
Plaintiffs have met their burden to establish the absence of
any genuine issue of fact material to a judgment in their
for the reasons set forth in plaintiffs' Memorandum in
Support of their Motion, summary judgment will be entered in
plaintiffs' favor and against defendant Lewis on
plaintiffs' claims for fraud, breach of fiduciary duty,
conversion, and replevin in Counts XIV-XVII of the First
Amended Complaint. The Court will enter judgment in favor of
plaintiffs and against defendant Amber Lewis, a/k/a Amber D.
Black, a/k/a Amber D. Woodward, in the amount of $297,
IT IS HEREBY ORDERED that plaintiffs' Motion for Summary
Judgment against ...