Opinion
C/A No. 6:14-cv-4904-HMH-MGB
07-14-2017
Brian T. Roberts, PLAINTIFF, v. EBay Inc., Auction Insurance Agency, Centennial Casualty Insurance, Visa Inc., Thomas Adams, Jr., PayPal Inc., Steven Tisland, Alabama Department of Insurance, Jeff Cregger, DEFENDANTS.
Report & Recommendation
The Plaintiff, proceeding pro se and in forma pauperis, filed the instant action against eBay Inc. and Action Insurance Agency ("AIA") on December 30, 2014, under diversity jurisdiction. (Dkt. No. 1.) On February 4, 2016, an Amended Complaint added Defendants Centennial Casualty Insurance ("CCC"), Visa Inc., Thomas Adams, Jr., PayPal Inc., Steven Tisland, Alabama Department of Insurance, and Jeff Cregger. (Dkt. No. 40.) Now before the court are Defendant eBay Inc.'s Motion for Summary Judgment (Dkt. No. 126) and Defendants Auction Insurance Company, Centennial Casualty Company and Thomas Adams Jr.'s Motion for Summary Judgment. (Dkt. No. 127.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons stated herein, the undersigned recommends that the Defendants' motions be granted.
The Complaint named "Ebay, Inc." in the caption. (Dkt. No. 1.) The correct name of the party is eBay, Inc.
Defendants Visa, Paypal, Steven Tisland, and Alabama Department of Insurance were dismissed from this case pursuant to the district court's Order filed on February 9, 2017. (Dkt. No. 146.) Defendant Jeff Cregger was dismissed with prejudice from this case pursuant to the district court's Order filed on March 7, 2016. (Dkt. No. 58.)
Procedural History
The Plaintiff filed his Complaint on December 30, 2014, and filed his Amended Complaint, with leave of the court, on February 4, 2016. (Dkt. Nos. 1 & 40.) Defendants Visa, Paypal, Steven Tisland, and Alabama Department of Insurance, and Jeff Clegger have been dismissed from this suit. (See Dkt. Nos. 58 & 146.) On October 3, 2016, Defendant eBay Inc.'s Motion for Summary Judgment (Dkt. No. 126.) and Defendants Auction Insurance Company, Centennial Casualty Company and Thomas Adams Jr.'s Motion for Summary Judgment (Dkt. No. 127.) were filed. The following day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Plaintiff was advised of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 128.)
On November 11, 2016, the Plaintiff responded to the two motions for summary judgment. (Dkt. No. 130.) The Plaintiff's response was substantive, but requested "formal discovery proceedings" as well. (Id.) The Defendants replied to the Plaintiff's response on November 21, 2016. (Dkt. Nos. 132 & 133.)
On December 22, 2016, the Plaintiff filed a motion seeking a hearing and pretrial conference. (Dkt. No. 134.) The Defendants responded to the motion on January 5, 2017. (Dkt. Nos. 137, 138, & 139.) The Plaintiff filed a reply on January 13, 2017. (Dkt. No. 141.) On April 6, 2017, the undersigned issued a Text Order denying the Plaintiff's request for a hearing, but the Text Order set forth a schedule for discovery and time to supplement the already-filed motions for summary judgment and responses. (Dkt. No. 149.)
The Plaintiff filed a Motion to Compel on May, 16, 2017. (Dkt. No. 158.) This court held a telephonic hearing on the motion to compel on May 18, 2017. (Dkt. No. 162.) The Plaintiff and Defense Counsel James Osborn, Jr., were present on the call. The court granted in part and denied in part portions of the motion to compel. (Id.) The motion was then withdrawn on the record by the Plaintiff. (Id.)
The Plaintiff's Response to Motion for Summary Judgment was filed on June 14, 2017. (Dkt. No. 166.) The Defendants replied on June 23, 2017. (Dkt. Nos. 169 & 170.)
Factual Background
The Amended Complaint contains three causes of action. (Dkt. No. 42.) The first cause of action relates to the sale of a 2008 Howard Deck Boat by the Plaintiff to Jeff Cregger and is asserted against all Defendants. (Id. at 4-7.) The Plaintiff advertised and sold a 2008 Howard Deck Boat in "as is, where is" condition to Jeff Cregger for $59,995.00 on August 20, 2014. Following the sale of the boat, Mr. Cregger filed a claim through eBay's "Buyer Protection Program" ("VPP") because he was not satisfied with the boat. (Id. at 4-7.) Defendant Auction Insurance Agency ("AIA") investigated on eBay's behalf as the claim administrator. (Dkt. No. 126-3 at 5, 8-9.) On or about November 13, 2014, the Plaintiff's eBay account was indefinitely suspended. (Dkt. No. 42 at 4.) At the time of the suspension, the Plaintiff had over 350 positive reviews on eBay. On or about December 9, 2014, AIA paid Mr. Cregger $20,000 to settle his claim. The Plaintiff told AIA that he did not want the settlement paid to Cregger because the boat was sold in "as is, where is" condition.
The Amended Complaint refers to the "Buyer Protection Program." (Dkt. No. 42 at 4) as well as the "VPP" (Dkt. No. 42 at 6.) The actual name of the program in the "vehicle protection program," which is referred to as the "VPP." (Dkt. No. 127-3 ¶ 3.) The VPP "offers protection for vehicle purchasers for failures of sellers to provide accurate listing information" when selling vehicles on eBay. (Id.)
AIA investigated the claims by Mr. Cregger. (Dkt. No. 127-3.) Following the investigation, Tony Zeidler, a vice president for AIA, sent an email to Lynette Ruttinger-Jones, an eBay employee, on November 13, 2014. (Dkt. No. 127-8.) The body of the email stated the following:
Please suspend the seller "btrenterprisesllc" as a result of the undisclosed hull & engine damage claim for item 331295679579. The eligible damage exceeds $25,000 and seller says he is unable to resolve the complaint. The buyer has sued the seller.(Dkt. No. 127-8 at 2.) Ms. Ruttinger-Jones responded to Mr. Zeildler within three hours stating "This seller has been suspended. Thanks for the information." (Id.) "Btrenterprisesllc" was the Plaintiff's eBay account and was suspended indefinitely by eBay.
Defendant Thomas Adams, Jr. was the president of CCC and AIA at all times relevant to this action. (Dkt. No. 127-3 ¶ 19.) The Plaintiff alleges that Adams "conspired" with eBay to use AIA and CCC to defraud users of eBay out of millions of dollars by illegally insuring transactions and causing "irreparable harm" to the Plaintiff. (Dkt. No. 42 at 5.)
CCC is an insurance company licensed in the state of Alabama. The funds used to indemnify Mr. Cregger "were drawn on an account in the name of Defendant Centennial Casualty Company" ("CCC"). (Dkt. No. 42 at 5.) CCC insured eBay for losses incurred through the VPP. (Dkt. No. 127-3 ¶ 8.) The Plaintiff alleges that eBay's website states that the VPP is not an insurance policy, but, despite this disclaimer, the VPP mirrors an insurance policy. (Dkt. No. 42 at 5.) The Plaintiff alleges that eBay pays a fee to AIA for every transaction on eBay. The Plaintiff alleged that this fee is a premium payment. Defendants AIA, CCC, and eBay are not licensed to insure transactions in all fifty (50) states. The Plaintiff has "exposed the acts" of AIA, CCC, and eBay to the Alabama Department of Insurance ("the Department"). (Dkt. No. 42 at 6.)
The Plaintiff's second cause of action relates to the sale of a 2003 Mazda MPV van in "as is, where is" condition to Steven Tisland for $2,500.00 on August 22, 2014. (Dkt. No. 42 at 7.) The only remaining defendant in the Plaintiff's second cause of action is eBay. The purchaser of the van left the Plaintiff positive feedback on eBay. On or about September 16, 2014, the purchaser of the van sent the Plaintiff an email stating that the van required repairs and that he expected the Plaintiff to pay for them. The Plaintiff replied that the van was sold "as is, where is" and that there was no warranty. Several weeks later, Defendant Tisland filed a "chargeback" to recoup the funds for the van through Visa. On or about September 23, 2014, PayPal recovered approximately $2500.00 from the Plaintiff's PayPal account. The Plaintiff informed PayPal that the van had been sold in "as is, where is" condition and that Tisland had retained possession and title of the van. The Plaintiff told PayPal he had incurred financial loss due to PayPal's negligent and irresponsible actions. The Plaintiff does not possess the van or title to the van. The Plaintiff has tried to recover the funds on multiple occasions without success. The Plaintiff was told by PayPal that the chargeback was initiated by Visa and that Visa had recovered the funds from PayPal.
The Plaintiff's third cause of action is brought against eBay and relates to the refund of fees paid by the Plaintiff to eBay. (Dkt. No. 42 at 8.) On August 13, 2014, the Plaintiff called eBay in reference to receiving a refund of fees that the Plaintiff had been charged for sales that were not completed. A customer service agent for eBay agreed to refund the Plaintiff $1238.65 in fees. (Dkt. No. 126-3 ¶¶36-38.) On September 22, 2014, the Plaintiff called eBay again concerning his refund. (Dkt. No. 42 at 8.) He was told by the eBay representative that eBay had made a mistake and was not issuing a refund. (Id.) On or about September 23, 2014, eBay contacted the Plaintiff and offered the Plaintiff $300.00 in lieu of the $1,200.00. The Plaintiff rejected eBay's offer and did not receive any funds.
Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). The court "must construe pro se complaints liberally." Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015), cert. denied, 136 S. Ct. 1829, 194 L. Ed. 2d 834 (2016), reh'g denied, 136 S. Ct. 2503, 195 L. Ed. 2d 836 (2016) (internal quotation marks and citations omitted).
Analysis
A. Defendant eBay Inc.'s Motion for Summary Judgment (Dkt. No. 126.)
Defendant eBay moves for summary judgment on all three causes of action. (Dkt. No. 126.)
1. First Cause of Action
The Plaintiff's first cause of action is characterized by eBay as a breach of contract claim between eBay and the Plaintiff governed by eBay's user agreement. (Dkt. No. 126-1 at 13-16.) The Plaintiff contends that his first cause of action "resembles a personal injury action" and that, despite the user agreement, eBay is responsible for the harm caused by their "negligence and deceptive trade practices." (Dkt. No. 166 at 9, 2.) The Plaintiff alleges that eBay suspended his account based on the dispute over the 2008 Howard Deck Boat. (Dkt. No. 42 at 4-5.) The Plaintiff alleges that his "As is, Where is" language in the listing for the boat was not properly considered and that "preference was given to testimony of the buyer of said vessel." (Id. at 4.)
The eBay user agreement was governed by the laws of the state of Utah.
To recover in a negligence claim under South Carolina law, "a plaintiff must prove the following three elements: (1) a duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty." Bloom v. Ravoira, 529 S.E.2d 710, 712 (S.C.2000). The Plaintiff has not alleged eBay owed any duty owed by eBay outside of the contractual relationship between the parties found in the eBay user agreement. The only duty between the parties is derived directly from the user agreement. "[U]nder South Carolina law, 'if the cause of action is predicated on the alleged breach, or even negligent breach, of a contract between the parties, an action in tort will not lie.'" Enhance-It, L.L.C. v. Am. Access Techs., Inc., 413 F. Supp. 2d 626, 631 (D.S.C. 2006) (quoting Meddin v. Southern Ry.-Carolina Division, 218 S.C. 155, 62 S.E.2d 109, 112 (1950)).
Under Utah law, which controls the eBay user agreement, "[t]he elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages." Bair v. Axiom Design, L.L.C., 20 P.3d 388, 392 (Utah 2001). The eBay user agreement specifically discussed suspension of an eBay account. The user agreement contained a list of eighteen forbidden activities for users. (Dkt. No. 126-4 at 3.) Included in the list was the term that a user may not "post false, inaccurate, misleading, defamatory, or libelous content;...." (Id.) The agreement then stated the following:
If we believe or discover that you are abusing eBay in any of the ways mentioned above or otherwise, we may, in our sole discretion, take any steps to prevent and mitigate such abuse such as limiting, suspending, or terminating your user account(s) and access to our Services, delaying or removing hosted content, removing any special status associated with your account(s), reducing or eliminating any discounts, and taking technical and/or legal steps to prevent you from using our services.(Dkt. No. 126-4 at 3. (emphasis added)). In discrete terms, the user agreement allowed eBay to "refuse or terminate" the Plaintiff's account "for any reason." (Id.) Defendant eBay was permitted by the user agreement to suspend the Plaintiff's account regardless of the outcome of the dispute concerning the boat. The user agreement gave eBay total discretion to terminate the Plaintiff's use of eBay. No genuine issue of material fact exists as to whether eBay breached the user agreement; eBay did not. Therefore, eBay is entitled to summary judgment as a matter of law.
...
Additionally, we reserve the right to refuse or terminate our Services to anyone for any reason at our discretion.
The first cause of action contains allegations that Defendants eBay, Thomas Adams, Jr., AIA, and CCC illegally insured transactions without the necessary state licensures as well. (Dkt. No. 42 at 5-7.) To support his argument, the Plaintiff cites the release signed by Jeff Cregger releasing CCC, eBay, and other related parties from liability in consideration for payment of $20,000 by CCC. (Dkt. No. 166 at 2-3.) The Plaintiff further cites attached "internal memoranda" as "further evidence that claims made under VPP are treated as insurance claims." (Id. at 166.)
Defendant eBay argues that VPP is not insurance and that the Plaintiff does not have standing to assert this claim because he does not have a personal stake in the controversy. (Dkt. No. 126-1 at 16.) "[S]tanding in federal court is a question of federal law, not state law." Hollingsworth v. Perry, 133 S. Ct. 2652, 2667, 186 L. Ed. 2d 768 (2013). To have standing under Article III of the Constitution, a plaintiff must demonstrate the following three elements:
(1) it has suffered an injury in fact;Taubman Realty Grp. Ltd. P'ship v. Mineta, 320 F.3d 475, 480 (4th Cir. 2003) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000).
(2) the asserted injury in fact is fairly traceable to, or caused by, the challenged action of the defendant; and
(3) it is likely rather than just conjectural that the asserted injury in fact will be redressed by a decision in the plaintiff's favor.
Injury-in-fact is "the '[f]irst and foremost' of standing's three elements." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016) (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). "[T]he injury-in-fact element requires that the plaintiff suffer an invasion of a legally protected interest which is concrete and particularized, as well as actual or imminent." Friends for Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 320 (4th Cir. 2002) (internal quotation marks omitted).
For an injury to be "particularized," it "must affect the plaintiff in a personal and individual way." Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be "concrete."Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016) (internal citations omitted).
...
A "concrete" injury must be "de facto "; that is, it must actually exist.
The Plaintiff does not have standing to assert any claim regarding any alleged unregulated insurance "scheme" between the Defendants. (Dkt. No. 42 at 5.) The Plaintiff did not suffer any injury-in-fact. The money paid to Mr. Cregger was paid by CCC on eBay's behalf. The Plaintiff was never out any money; he kept the total amount paid for the deck boat. The Plaintiff was not harmed in any way by CCC paying Mr. Cregger. The Plaintiff was not affected in a personal and individual way. The Plaintiff alleges that the Defendants have been allowed "to deceive, defraud, and steal millions of dollars from an innocent public" and caused "irreparable harm to Plaintiff Brian Roberts." (Dkt. No. 42 at 7.) The Plaintiff cannot assert a claim on behalf of the public.
The only harm that this court can construe the Plaintiff received was the suspension of his account by eBay on the recommendation of AIA. The account suspension is the substance of the Plaintiff's breach of contract claim. The suspension of the account is tangential to the payment to Mr. Cregger. AIA investigated the sale of the boat and recommended eBay suspend the Plaintiff's account. The investigation and recommendation was not "insurance" subject to any regulation. The suspension of the Plaintiff's eBay account was done by eBay in accordance within the terms of eBay's user agreement. This court finds that the Plaintiff does not have standing to bring any claim regarding the relationships between eBay, AIA, and CCC or the payment to Mr. Cregger.
The Defendants argue that the Plaintiff has conceded that he does not have standing because he did not address the Defendants' standing argument in any of his responses. (Dkt. Nos. 133, 170.) "Courts have recognized that a party's failure to address an issue in its opposition brief concedes the issue." Oliver v. Baity, 208 F. Supp. 3d 681, 690 (M.D.N.C. 2016) (collecting cases). This court concludes that the Plaintiff's failure to respond to the Defendants' arguments as to his standing concedes the issue and is an additional reason the undersigned recommends granting eBay's Motion for Summary Judgment.
This court does not reach the substance of the Plaintiff's claim regarding whether the contractual relationships between the Defendants creates an insurance product under South Carolina, Utah, or any other state's law. Having found that the Plaintiff lacks standing to assert such claims, this court would be stepping beyond its power to draw any conclusion on the insurance issue. See e.g. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998) ("For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires."). Based on the forgoing, this court concludes that no genuine issue of material fact exists as to the Plaintiff's breach of contract claim and the Plaintiff did not have standing to sue alleging the Defendants were participating in an unregulated insurance scheme.
2. Second Cause of Action
The Plaintiff's second cause of action against eBay contains allegations regarding the Mazda van. (Dkt. No. 42 at 7-8.) The Plaintiff's only allegations concerning eBay in the second cause of action are that he sold the van on eBay and that he "has suffered great financial as well as emotional damages due to Defendant eBays [sic] actions." (Id. at 8.) In Plaintiff's Response to the Motion for Summary Judgment, the Plaintiff argues that his "loss...was due to eBay not acknowledging to Visa that this vehicle was not in the possession of plaintiff, and therefore, the funds should not be returned to the purchaser until the van was returned." (Dkt. No. 166 at 9.)
Ebay argues that is has immunity for its alleged conduct in the second cause of action under the Communications Decency Act ("CDA"), 47 U.S.C. § 230. (Dkt. No, 126-1 at 18.) "The CDA establishes immunity for providers of interactive computer services that provide an online platform allegedly used by third-parties to facilitate wrongful conduct." Mazur v. eBay Inc., No. C 07-3967 MHP, 2008 WL 618988, at *9 (N.D. Cal. Mar. 4, 2008). The CDA states, in relevant part, that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C § 230(c)(1). Other courts have held eBay to be a provider of an interactive computer service. Mazur, C 07-3967 MHP, 2008 WL 618988, at *9 (N.D. Cal. Mar. 4, 2008); Genry v. eBay, 99 Cal.App.4th 816, 834, 121 Cal.Rptr.2d 703 (2002) (holding eBay to be a provider of interactive computer services). The CDA states that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).
While the CDA does provide eBay immunity from certain types of suits, the Plaintiff's allegations in his second cause of action do not relate to any content on eBay's website. The cases cited by eBay relate to the alleged sale and advertisement of illegal goods on eBay and whether a state consumer protection statute applied to eBay when a seller sold fraudulent goods on the site. Stoner v. eBay, Inc., No. 305666, 2000 WL 1705637, at *1 (Cal. Super. Ct. Nov. 1, 2000); Genry v. eBay, 99 Cal.App.4th 816, 834, 121 Cal.Rptr.2d 703 (2002). Both of these cases, and the statute itself, concern the content that third-party users post on eBay. The case at bar does not relate to content posted on eBay. The Plaintiff's allegations are that eBay did not assist him in his dispute with Visa, Paypal, and Mr. Tisland. The CDA does not appear to be applicable to the case at bar.
Although the CDA does not apply, this court concludes that eBay is entitled to judgment as a matter of law. The Plaintiff has not cited any legal duty eBay had to assist him with the chargeback instituted by Tisland through Visa and Paypal. Viewing the facts in the light most favorable to the Plaintiff, eBay played no role in the Plaintiff's dispute with Tisland, Visa, and Paypal regarding the van transaction other than being the site through which the van was sold. The eBay user agreement does not contain any language obligating eBay to assist the Plaintiff with a credit card chargeback. Defendant eBay had no duty to assist the Plaintiff.
The Plaintiff argues that eBay should have acknowledged to Visa that the vehicle was not in the Plaintiff's possession. (Dkt. No. 166 at 9.) Defendant eBay had no duty to acknowledge the Plaintiff's version of events to Visa. There is no evidence in the record that eBay had any role in transporting the van or had any firsthand knowledge of the van's whereabouts. Additionally, there is no evidence in the record that the Plaintiff's dispute with Tisland, Visa, and Paypal regarding the van would have had a different outcome if eBay had contacted Visa. The undersigned concludes that no genuine issue of material fact exists as to the Plaintiff's second cause of action, and eBay is entitled to summary judgment as a matter of law.
3. Third Cause of Action
The Plaintiff's third cause of action is alleged against eBay and regards an eBay customer service agent's promise to refund the Plaintiff fees. (Dkt. No. 42 at 8.) Defendant eBay argues that its agent's promise to refund the fee was a gratuity and that it was under no legal or contractual obligation to refund the fees. (Dkt. No. 126-1 at 18-19.)
Under Utah law, which controls the eBay user agreement, "in order for a contract to be valid and binding, each party must be bound to give some legal consideration to the other by conferring a benefit upon him or suffering a legal detriment at his request." Manwill v. Oyler, 11 Utah 2d 433, 436, 361 P.2d 177, 178 (1961). Defendant eBay's website listed the terms for selling on eBay's "motors" section and stated that "[i]nsertion fees and advanced listing upgrade fees apply to each listing you create, are charged at the time of listing, and are nonrefundable." (Dkt. No. 126-5 at 5.) The Plaintiff's allegations are that he called eBay and requested a refund of fees he paid eBay for listings where the buyers did not complete the transaction. (Dkt. No. 42 at 8.) Defendant eBay's customer service representative agreed to refund $1,200 in fees. (Id.) Over a month later, the Plaintiff called back to check on the refund and was told eBay would not make "the $1200 promised refund." (Id.) EBay contends, and the Plaintiff does not dispute, that the refund was not made because the customer service agent's supervisor did not approve the refund. (Dkt. No. 126-3 ¶¶ 38-39.) The Plaintiff does not allege he was entitled to the refund under the eBay user agreement.
No genuine issue of material fact exists as to the Plaintiff's claim for the refund. Under the contract between the Plaintiff and eBay, the fees were nonrefundable. Defendant eBay's subsequent promise to refund the fees was not supported by any consideration. Defendant eBay's promise was not an enforceable contract. While a promise creates a moral obligation, it does not create a legal obligation unless supported by consideration. Manwill, 11 Utah 2d at 436, 361 P.2d at 179 (for a contract to exist, "there must be something beyond a bare promise, as of an offered gift or gratuity"). Therefore, this court concludes that no genuine issue of material fact exists as to the Plaintiff's third cause of action, and Defendant eBay is entitled to summary judgment as a matter of law. The undersigned recommends that Defendant Ebay Inc.'s Motion for Summary Judgment (Dkt. No. 126) be granted.
B. Defendants Auction Insurance Agency, Centennial Casualty Company and Thomas Adams Jr.'s Motion for Summary Judgment (Dkt. No. 127.)
The only allegations against Defendants AIA, CCC, and Adams are in the Plaintiff's first cause of action. The Defendants AIA, CCC, and Adams argue that eBay suspended the Plaintiff's account and that the Plaintiff does not have standing to challenge the VPP as an alleged insurance scheme. (Dkt. No. 127-1.) The Plaintiff argues that Defendants AIA, CCC, and Thomas "played a vital role in the suspension of Plaintiff's eBay account." (Dkt. No. 166 at 7.)
As discussed at length supra, there is no dispute that eBay had complete discretion as to whether to suspend the Plaintiff's account. Whether or not any of these Defendants played a role in eBay's decision-making process is not material. The fact that eBay is the one who ultimately suspended the Plaintiff's account is undisputed. Therefore, this court recommends that AIA, CCC, and Thomas are entitled to judgment as a matter of law.
This court has already addressed the Plaintiff's allegations that the Defendants were colluding to run an unregulated insurance scheme. This court concludes that the Plaintiff does not have standing to make these claims because he did not suffer any injury-in-fact. Therefore, this court recommends granting Defendants Auction Insurance Company, Centennial Casualty Company and Thomas Adams Jr.'s Motion for Summary Judgment. (Dkt. No. 127.)
Conclusion
Based on the foregoing, this court recommends that Defendant ebay Inc.'s Motion for Summary Judgment (Dkt. No. 126) and Defendants Auction Insurance Company, Centennial Casualty Company and Thomas Adams Jr.'s Motion for Summary Judgment (Dkt. No. 127) be GRANTED.
IT IS SO RECOMMENDED. July 14, 2017 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).