The opinion of the court was delivered by: Joe Billy McDade United States District Judge
Before the Court is a Motion for Order of a Final Decree (Doc. 21) filed by Plaintiff, American Skandia, and a Motion for Summary Judgment (Doc. 23) filed by Defendant Lisa Ann Much. Defendant Janet McCarty filed a Response (Doc. 34) to this Motion for Summary Judgment. Also before the Court is a Motion to Strike and a Motion for Summary Judgment (Doc. 24; Doc. 35) filed by Defendant Janet McCarty. Defendant Much filed a Response (Doc. 38) to this Motion. McCarty, in turn filed a Reply (Doc. 41). This Court ordered Defendant Much to file additional briefing on the issue of hearsay and, after missing the deadline, Much has now filed a Motion for Leave to File her Supplement Brief after the Court imposed deadline. (Doc. 45) Defendant McCarty filed a Memorandum in Opposition to this Brief. For the following reasons, the Motions for Summary Judgment and the Motion to Strike are DENIED, and the Motion for Leave to File and the Motion for entry of Order of Final Decree are GRANTED. All other pending motions are MOOT.
The facts of this case are fairly straightforward. Jane Creed (the "Deceased" or "Creed") received financial services from Wachovia Securities LLC. In 1999, Wachovia provided her an annuity from Plaintiff, American Skandia Life Assurance Corporation. Creed completed an application form for the annuity and on that application she listed her sister, Defendant Janet McCarty, as the sole beneficiary. An annuity contract was issued which provided that Creed could change the beneficiary by sending a request in writing. According to the contract changes are effective only after they have been approved by American Skandia. (Doc. 34 at 2.)
Creed also had a daughter, Defendant Lisa Much. According to Much, in 2007 Creed wanted to change the beneficiary and name Much as the beneficiary of the annuity. (Doc. 23 at 2.) Creed called Wachovia on March 15, 2007 (seven days before her death) and requested Wachovia send a change of beneficiary form. (Doc. 23 at 2.) According to Much, Creed filled out her name and address on the change of beneficiary form. She also signed and dated the form March 20, 2007, but never actually filled out the contents of the forms including the box in the form that named the new beneficiary. According to Much, Creed mailed in the form along with an attached post-it note. The note was dated "3/20/2007" and stated as follows: "Leslie, I want to delete Janet R. McCarty and replace it with my daughter, Lisa Ann Much's name. SS # [redacted]. I am confused about this form." According to Much, the note was signed by Creed and mailed back to Wachovia where it arrived on March 21, 2007. On March 22, Creed passed away. (Doc. 23 at 2-3.)
McCarty has a different view of the facts. First, McCarty first emphasizes that American Skandia never approved the change in beneficiary. (Doc. 34 at 6.) Second, McCarty puts forward facts that suggest that the change of beneficiary form was not mailed until after Creed's death. McCarty points to a letter from Wachovia which states that Wachovia received a change of beneficiary form on March 25, 2007, three days after Creed's death. (Doc. 34, Ex A.) McCarty also points to deposition testimony in which Much stated that she may have seen the American Skandia documents at Creed's house after Creed's death. However, she was "not sure" and "could not really remember." (Doc. 34, Ex B at 2.) Likewise, McCarty also points to deposition testimony from Creed's son (and Much's brother), Stuart Creed. In his deposition, Stuart Creed states that he recalled seeing the documents with a post-it note on them and nothing written on the post-it note after his mother's death. Further, he could not remember what happened to the documents that he saw in his mother's house. However, according to Stuart, it is possible that the documents were mailed after her death. (Doc. 34, Ex. B at 2-3.)
In addition, McCarty also alleges that Creed only intended to add Much as a contingent beneficiary. McCarty emphasizes the deposition testimony of Victor Russo, a Wachovia agent and Creed's broker. In that testimony, Russo discusses another partially completed document which impacted one of Creed's separate account. In that document, Creed added Much as the contingent beneficiary rather than the primary beneficiary. (Doc. 41 at 10; Russo Depo at 33-36.)
Much disputes that the change in beneficiary form was mailed after Creed's death and emphasizes that the post-it note itself is dated March 20, 2007. Much also emphasizes a different portion of Russo deposition testimony. Russo states that the packet of material, including the change of beneficiary form arrived on March 21, 2008. (Doc. 38 at 4.) Furthermore, Much highlights additional evidence which only serves to confuse this matter. Much emphasizes a letter from Christy Plunkett, an account administrator at Wachovia that appears as if it was sent to American Skandia. According to the letter, Creed called Wachovia on March 15, 2007 and asked for a change of beneficiary form. The letter inaccurately states that Creed died on March 20, 2007 (Creed died on March 22, 2007) and then states that "[t]he following day we received the paperwork back in the mail and there was a post-it note stuck to the front of the American Skandia Form. . . ." While this letter does state that Wachovia received the change of beneficiary form on March 21, 2008, considering that the letter erred on the date of Creed's death, it is unclear if this letter can be relied upon.
Unfortunately, neither party has come forward with evidence from a postal carrier that could clear up when the change of beneficiary form was mailed. Nevertheless, McCarty and Much have now filed cross-motions for summary judgment.
Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the responsibility of informing the Court as to portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the movant has met its burden, to survive summary judgment the "non-movant must show through specific evidence that a triable issue of fact remains on issues on which [s]he bears the burden of proof at trial." Warsco v. Preferred Tech. Group, 258 F.3d 557, 563 (7th Cir. 2001); See also Celotex Corp., 477 U.S. at 322-24. "The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence." Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997).
This Court must nonetheless "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). In doing so, this Court is not "required to draw every conceivable inference from the record -- only those inferences that are reasonable." Bank Leumi Le-Isreal, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). Therefore, if the record before the court "could not lead a rational trier of fact to find for the non-moving party," then no genuine issue of material fact exists and, the moving party is entitled to judgment as a matter of law. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). However, in ruling on ...