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Hank Drager, Individually and On Behalf of All Others Similarly v. Bridgeview Bank and Meirtran

September 17, 2012

HANK DRAGER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
BRIDGEVIEW BANK AND MEIRTRAN, INC., DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court are cross motions for summary judgment filed by Defendants Bridgeview Bank and Meirtran, Inc. [74] and by Plaintiff Hank Drager [81]. For the following reasons, the Court grants Defendants' motion for summary judgment [74] and denies as moot Plaintiff Drager's motion [81].

I. Background*fn1

In his one-count amended complaint [10], Plaintiff Hank Drager alleges a violation of the Electronic Funds Transfer Act ("EFTA"), 15 U.S.C. § 1963 et seq. and Regulation E, 12 C.F.R. § 205.1 et seq. On November 1, 2010, Plaintiff used an automated teller machine ("ATM") located at 4753 N. Broadway Avenue, in Chicago to withdraw $20 from his bank account. The ATM charged a $3.00 fee during the transaction, which was paid to Defendant Bridgeview Bank ("Bridgeview"). At the time of Plaintiff's transaction on November 1, the subject ATM did not display a fee notice which advised users that they would be charged a fee for using the ATM.*fn2

However, there was a notice at the top of the machine that read "Bridgeview Bank Customers Use This ATM For Free." Furthermore, Plaintiff could not complete the transaction at the subject ATM unless he was presented with an on-screen notice telling him about the $3.00 transaction fee and then agreed to accept the $3.00 fee. According to his deposition testimony, Plaintiff does not remember seeing the on-screen notice, but he nonetheless completed the transaction, received his $20.00, and paid the $3.00 fee. Plaintiff also testified that he did not see a notice on the subject ATM sometime prior to November 1, 2010, but he could not remember when.*fn3 Plaintiff brings this action on behalf of himself and "all persons who were charged a transaction fee for the use of" the subject ATM.

Defendant Meirtran ("Meirtran") was the owner and operator of the subject ATM. Meirtran installed the ATM and repairs the ATM if it breaks. Meirtran pays $3.00/sticker for fee notice stickers informing consumers that a transaction fee will be imposed at its ATM. These stickers have strong adhesive on the back. If Meirtran does not "service" the ATM-meaning supply the machine with cash-then its employees inspect its ATMs twice a year to ensure that fee notice stickers are in place. If Meirtran does supply the cash for the machines, then its employees inspect its ATMs anywhere from weekly to monthly, depending on how frequently a machine needs to be replenished with cash. Meirtran also expects the entity which supplies the ATMs with cash (either on a weekly or monthly basis) to inspect the machines for the fee notice stickers. Meirtran also had a one-page written policy on compliance with the EFTA. On April 29, 2009, Meirtran took a picture of the subject ATM, which showed the notice below the tray where money is removed.

Bridgeview supplied the weekly cash inventory for withdrawal from the subject ATM during the relevant time period. While supplying the cash inventory, Bridgeview employees also visually checked the ATMs to ensure that fee notice stickers were present. According to the Bridgeview bank teller who typically filled the subject ATM with its cash inventory, the fee notice sticker also was on the ATM on October 16, 2010, just two weeks prior to Plaintiff's withdrawal. Bridgeview does not maintain or program the ATM; rather, if Bridgeview noticed a problem with the ATM, or if a customer informed Bridgeview of a problem, then Bridgeview would call Meirtran to inspect and repair the ATM.

Defendants also have provided evidence that if someone noticed that the ATM did not have a fee sticker, the "immediate response" would be to put a new sticker on and take a picture of the ATM with the new sticker.*fn4 Plaintiff has not provided any evidence that Defendants knew the fee sticker was missing and failed to post a new fee sticker on the ATM. Defendants' investigation revealed evidence that Defendants' current employees did not remove the fee notice sticker, and Plaintiff has not presented any evidence to the contrary. Meirtran admitted to knowledge of instances of alleged vandalisms at its other ATM machines. Plaintiff suggests that "former rogue employees" could have removed the fee sticker or, perhaps more plausibly, the sticker could have fallen off of the ATM. On November 26, 2010, Meirtran placed a new fee notice sticker on the subject ATM, after being informed that the machine did not have a sticker.

II. Summary Judgment Standard

Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (a). On cross-motions for summary judgment, the Court construes all facts and inferences "in favor of the party against whom the motion under consideration is made." In re. United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006) (quoting Kort v. Diversified Collection Servs., Inc., 394 F.3d 530, 536 (7th Cir. 2005)); see also Gross v. PPG Industries, Inc., 636 F.3d 884, 888 (7th Cir. 2011); Foley v. City of Lafayette, Ind.,359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the opposing] position will be insufficient; there must be evidence on which the jury could reasonably find for the [opposing party]." Anderson, 477 U.S. at 252.

III. Analysis

Under the relevant portion of the EFTA, an ATM operator must provide notice to a user of fees charged for use of the machine. 15 U.S.C. ยง 1693b(d)(3). The relevant ...


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