McNamara v. Picken ( 2013 )


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  •                            UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    __________________________________________
    )
    SCOTT A. McNAMARA, M.D.,                   )
    )
    Plaintiff/Counter-Defendant,   )
    )
    v.                             ) Civil Action No. 11-1051 (ESH)
    )
    CATHERINE A. PICKEN, M.D., et al.,         )
    )
    Defendants/Counter-Plaintiffs. )
    __________________________________________)
    MEMORANDUM OPINION
    Before the Court is defendants’ motion for partial summary judgment with respect to
    Count Two (May 20, 2013 [ECF No. 83] (“Mot.”)). For the reasons stated below, and based on
    the pretrial status conference held on June 20, 2013, defendants’ motion will be granted in part
    and denied in part.
    BACKGROUND
    The relevant factual background was laid out in this Court’s earlier opinion ruling on
    defendants’ motion for judgment on the pleadings. McNamara v. Picken, 
    866 F. Supp. 2d 10
    ,
    13-14 (D.D.C. 2012).
    ANALYSIS
    Defendants seek summary judgment on Count Two, which requests an accounting and
    recovery for conversion. Conversion has been defined as “an unlawful exercise of ownership,
    dominion, and control over the personalty of another in denial or repudiation of his right to such
    property.” Wash. Gas Light Co. v. Public Serv. Comm’n of Dist. of Columbia, 
    61 A.3d 662
    , 675
    (D.C. 2013) (quoting Baltimore v. District of Columbia, 
    10 A.3d 1141
    , 1155 (D.C. 2011)).
    1
    Generally speaking, conversion applies to chattel; however, “[m]oney can be the subject of a
    conversion claim . . . if the plaintiff has the right to a specific identifiable fund of money.”
    Cannon v. Wells Fargo Bank, N.A., 
    2013 WL 764964
    , at *18 (D.D.C. Mar. 1, 2013) (quoting
    Curaflex Health Servs., Inc. v. Bruni, 
    877 F. Supp. 30
    , 32 (D.D.C. 1995)).
    Defendants argue that plaintiff cannot establish the essential elements of his conversion
    claim because (a) there is no specific, identifiable fund of money which plaintiff had an
    immediate right to possess, and (b) “an action in conversion cannot coexist with a claim to
    enforce a contractual obligation to pay money.” (Mot. at 3-4.) Plaintiff responds that his
    conversion claim is distinct from his breach of contract claims and that it is premised on specific
    funds to which he had an immediate right to possess. (Opposition to Motion for Partial
    Summary Judgment on Count Two, June 3, 2013 [ECF No. 97] (“Opp’n”).)
    In his opposition and at the pretrial status conference, plaintiff clarified that his
    conversion claim is premised on two categories of money. First, he alleges that Picken used joint
    partnership funds to pay debts and expenses that were previously incurred by WENT, in
    contradiction to the terms of the oral partnership agreement that plaintiff claims he entered into
    with Picken. (Amended Complaint, Jan. 29, 2013 [ECF No. 62-1] ¶¶ 32-34.) He estimates that
    the amount spent on such debts and expenses was approximately $30,000. And second, he
    alleges that defendants converted “monies earned and owed to him for work performed prior to
    the merger.” (Opp’n at 8.)
    For each of those challenged funds, the Court must determine whether plaintiff has a
    property interest in that money, such that an action for conversion is proper, or simply a
    contractual right. With respect to the first category—partnership money allegedly used for debts
    incurred prior to September 1, 2010—plaintiff has only a contractual right to recover those
    2
    funds. Defendants correctly compare this case to Curaflex, 
    877 F. Supp. 30
    . There, the
    defendant was contractually obligated to place monies received for services rendered by the
    plaintiff into a lock box. 
    Id. at 32
    . Thus, there was a specific identifiable fund of money that
    plaintiff claimed he was entitled to. However, the Court found that plaintiff did not have the
    immediate right to possess that money because plaintiff only had access to the funds if defendant
    transferred them from the lock box to Curaflex’s account, as it was contractually required to do.
    
    Id. at 35
    .
    Here, there was not even such a clearly identifiable fund of money. Plaintiff has not
    established that he personally contributed a certain amount of money to the partnership to be
    used for partnership activities and that Picken improperly used those exact funds to pay off debts
    previously incurred before McNamara joined the partnership. Instead, he argues only that
    general partnership funds—which were derived in part from services he provided—were
    misdirected to debts previously incurred by WENT or Picken. That is a far cry from the
    Curaflex “lock box”; such fungible cash is precisely the type of fund that may not underlie a
    claim for conversion. Moreover, once plaintiff contributed money or resources to the partnership
    it became partnership property, and he lost the immediate right to possess it. Like the plaintiff in
    Curaflex, plaintiff only had access to those funds if defendants fulfilled their contractual
    obligation to give plaintiff 50% of the partnership’s profits. And furthermore, this claim is more
    properly construed as a breach of contract claim. Plaintiff’s claim to the allegedly misused funds
    is premised on his argument that Picken violated the terms of their partnership agreement by
    using funds out of the WENT bank account to pay for debts incurred prior to the merger.
    However, it is well established that “[a] cause of action for conversion . . . may not be
    maintained to enforce a mere obligation to pay money.” Cannon, 
    2013 WL 764964
    , at *18
    3
    (quoting Curaflex, 
    877 F. Supp. at 32
    ). Thus, plaintiff may only seek recovery of that money
    under his claim for breach of the alleged partnership agreement (Count Four).
    With respect to the second category of money, however—money earned by plaintiff for
    work performed prior to the merger—plaintiff has stated a claim for conversion. In his
    opposition, plaintiff claims that checks that were made out to him in his individual capacity for
    work performed prior to the merger were improperly deposited into the joint bank account.
    (Opp’n at 7.) At the pretrial status conference, he clarified that there is actually only one such
    check, amounting to $185.42. The Court agrees that that check is a readily identifiable fund of
    money which plaintiff, as the addressee, would have been in full possession of but for
    defendants’ alleged conversion of those monies. See, e.g., Ficken v. AMR Corp., 
    578 F. Supp. 2d 134
    , 143 (D.D.C. 2008) (“Conversion and trover extend only to intangible rights identified by a
    tangible document that is converted; [t]hus a plaintiff may bring a suit for conversion of a
    promissory note, a check, a bank book, or an insurance policy . . . but not for conversion of a
    debt, the good will of a business or an idea.” (internal quotation marks omitted)); Tooling Mfrg.
    & Tech. Ass’n v. Tyler, 
    2010 WL 5383529
    , at *10 (Mich. Ct. App. Dec. 28, 2010) (“A person
    may sue for the conversion of identifiable money or checks that the defendant had an obligation
    to deliver to the plaintiff.”). This case is directly analogous to Crown Life Ins. Co. v. Smith, 
    657 So. 2d 821
     (Ala. 1994). There, an insurance agent forged an endorsement signature on his
    client’s insurance refund checks and deposited those funds into his own accounts. Id. at 823.
    The Alabama Supreme Court noted that “[t]hese refund checks were specific, identifiable
    property that represented funds owed from [the insurance company] to the [client]. [The agent]
    wrongfully exercised dominion over the checks through his forgeries upon the checks and his
    retention of the funds; therefore, [he] converted these checks.” Id. at 823-24. Similarly, here,
    4
    plaintiff alleges that defendants knowingly deposited a check into the partnership bank accounts
    that was made out to him in his individual capacity as payment for services rendered prior to the
    existence of the partnership. Thus, plaintiff may properly bring a conversion claim for the
    $185.42 check that he alleges was improperly converted by the partnership. 1
    CONCLUSION
    For the foregoing reasons, defendants’ Motion for Partial Summary Judgment on Count
    Two (Conversion) is granted in part and denied in part. A separate Order accompanies this
    Memorandum Opinion.
    /s/
    ELLEN SEGAL HUVELLE
    United States District Judge
    Date: June 21, 2013
    1
    Defendants argue that plaintiff cannot establish a dispute as to a material fact based on his
    interrogatory answers because they are made only to the “best of” his knowledge. (See
    Defendants’ Reply in Support of Their Motion for Partial Summary Judgment on Count Two,
    June 10, 2013 [ECF No. 105] (“Reply”) at 2.) However, Rule 56 clearly states that a party may
    establish a genuine dispute as to a material fact by “citing to particular parts of materials in the
    record including . . . interrogatory answers.” Fed. R. Civ. P. 56(c)(1)(A). Thus, plaintiff’s
    response to interrogatory number 1, in which he discusses the checks made out to him for
    services rendered prior to September 1, 2010, is sufficient to defeat summary judgment. (See
    Opp’n Ex. A at 1.)
    Similarly, the mere fact that plaintiff did not dispute any of the assertions in defendants’ Rule
    7(h)(1) statement does not establish that defendants are entitled to summary judgment, as those
    assertions are either immaterial to plaintiff’s conversion claim (see Reply at 2, ¶¶ 1, 2, 4) or they
    state legal conclusions that require no response. (See id. ¶ 3.)
    5
    

Document Info

Docket Number: Civil Action No. 2011-1051

Judges: Judge Ellen S. Huvelle

Filed Date: 6/21/2013

Precedential Status: Precedential

Modified Date: 10/19/2024