1

Defendant formerly appeared in the case caption as Bank One; however, Defendant indicated in its Certificate

of Interested Parties that JPMorgan Chase Bank, N.A., as the successor by merger to Bank One, N.A., should appear

in the caption instead (See Docket Entry No. 2.)

 2On November 16, 2005, the Court issued an order directing Plaintiff to file a response by December 6, 2005. 

To date, Plaintiff has filed no response.

-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SOFIAN ELKHAROUBI, §

§

Plaintiff, §

§ Civil Action No. 3:05-CV-0256-BH (P)

v. §

§ ECF Case

JPMORGAN CHASE BANK, N.A.,1 §

§

Defendant. § Consent Case

MEMORANDUM OPINION AND ORDER

Pursuant to the District Court’s Order Transferring Case, filed March 14, 2005, this matter

has been transferred to the undersigned United States Magistrate Judge for the conduct of all further

proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c). Before the Court is

Defendant JPMorgan Chase Bank, N.A.’s Motion for Summary Judgment (“MSJ”), filed November

16, 2005. Plaintiff did not file a response.2

 Based on the motion and the applicable law, the Court

finds that the motion should be GRANTED.

I. BACKGROUND

Plaintiff Sofian Elkharoubi (“Plaintiff”) filed suit in state court against Defendant JPMorgan

Chase Bank (“Chase”) on January 18, 2005, in the 101st District Court of Dallas County, Texas.

Plaintiff alleges in his original petition that on or about August 1, 1992, he opened a savings account

with Chase. (Orig. Pet. at 2.) At that time, he also rented a safety deposit box at a fee of $25 per

 

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year, with the fee to be automatically billed to his Chase account. Id. The safety deposit box, he

asserts, contained his citizenship documents, driver’s license, marriage certificate, passport,

educational degrees, other legal documents, and family jewelry valued at $30,000. Id. Plaintiff’s

original petition further alleges that he periodically checked the contents of the safety deposit box

and discovered in April 2004 that the contents of the box were missing. Id. On the basis of these

events, Plaintiff brings breach of contract, Deceptive Trade Practices Act (“DTPA”), bailment,

premises liability, and trespass claims against Chase. Id. at 3-5. By his suit, Plaintiff seeks

economic damages, damages for mental anguish, attorney’s fees, and other compensation. Id. at 5-6.

Chase removed the action to federal court on February 4, 2005, on diversity grounds. On

November 16, 2005, Chase moved for summary judgment, arguing that all of Plaintiff’s claims

sound in contract and are time-barred. (MSJ at 1.) 

II. ANALYSIS

A. Summary Judgment Standard

Summary judgment is proper when the pleadings and evidence on file show that no genuine

issue exists as to any material fact and that the moving party is entitled to judgment as a matter of

law. FED. R. CIV. P. 56(c). “[T]he substantive law will identify which facts are material.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists

“if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id.

The movant makes a showing that there is no genuine issue of material fact by informing the court

of the basis of its motion and by identifying the portions of the record which reveal there are no

genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The pleadings,

depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material

 

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fact exists. FED. R. CIV. P. 56(c).

Once the movant makes this showing, the non-movant must then direct the court’s attention

to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.

Celotex, 477 U.S. at 323-24. To carry this burden, the “opponent must do more than simply show

. . . some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-movant must show that the evidence is

sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.

While all of the evidence must be viewed in a light most favorable to the motion’s opponent,

Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)),

neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant’s summary

judgment burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian

v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). Summary judgment in favor of the movant is

proper if, after adequate time for discovery, the motion’s opponent fails to establish the existence

of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex,

477 U.S. at 322-23.

Where, as here, the nonmovant fails to respond to the motion for summary judgment, such

failure does not allow the court to enter a default summary judgment. Hibernia Nat’l Bank v. Admin.

Cent. Sociedad Anonima, 776 F.2d 1277 (5th Cir. 1985) (citing John v. La. (Bd. of Trs. for State

Colls. & Univs.), 757 F.2d 698, 709 (5th Cir. 1985)). However, “[a] summary judgment nonmovant

who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute

summary judgment evidence.” Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996)

(citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). In addition,

 

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Chase’s evidence may be accepted as undisputed. Thompson v. Eason, 258 F. Supp. 2d 508, 515

(N.D. Tex. 2003) (citing Eversly v. Mbank, 843 F.2d 172, 174 (5th Cir. 1988); Bookman, 945 F.

Supp. at 1002).

B. Statutes of Limitations

Because the Court’s jurisdiction in this case is based on diversity of citizenship, the Court

applies Texas law. See Herrmann Holdings Ltd. v. Lucent Techns. Inc., 302 F.3d 552, 558 (5th Cir.

2002) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79-80 (1938)). Under Texas law, the statute

of limitations on Plaintiff’s breach of contract claims is four years. TEX. BUS. & COM. CODE §

2A.506(a)(b). For Plaintiff’s bailment, premises liability, trespass, and DTPA claims, the statute

of limitations is two years. TEX. CIV. PRAC. & REM. CODE § 16.003; TEX. BUS. & COM. CODE §

17.56. Thus, Plaintiff’s breach of contract claim is barred by the statute of limitations if it accrued

prior to January 2001, and his remaining claims are barred by the statute of limitations if they

accrued prior to January 2003.

1. Accrual of the Cause of Action

“[W]hen a cause of action accrues is a question of law.” Provident Life and Acc. Ins. Co.

v. Knott, 128 S.W.3d 211, 221 (Tex. 2003) (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348,

351 (Tex. 1990)). “As a general rule, a cause of action accrues and the statute of limitations begins

to run when facts come into existence that authorize a party to seek a judicial remedy.” Knott, 128

S.W.3d at 221 (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514

(Tex.1998); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990)). “In most cases,

a cause of action accrues when a wrongful act causes a legal injury, regardless of when the plaintiff

learns of that injury or if all resulting damages have yet to occur.” Knott, 128 S.W.3d at 221 (citing

 

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S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)).

Chase asserts that “[a]ll of [Plaintiff’s] claims (if any) accrued in August 1998 when he

stopped paying rent on Box 0011385.” (MSJ at 8.) Alternatively, Chase argues that “[a]t the very

latest, the claims accrued a month later in September 1998 when he received his August bank

statement and it did not contain a debit for the $25.00 annual fee for lease of Box 0011385.”

Plaintiff’s claims focus on his assertion that Chase materially breached the rental agreement by

failing to keep the safety deposit box for his exclusive use and failing to return the contents of the

box to him. (Orig. Pet. at 3.) According to documents provided in support of Chase’s summary

judgment motion, any nonpayment of rent on Plaintiff’s part would have set into motion a series of

actions on the bank’s part which would have spanned several months. (MSJ App. at 35.) Thus, the

date of Plaintiff’s first nonpayment of rent would not indicate the precise date on which the box’s

contents would have been removed. Instead, the dates of August 1998 and September 1998 point

to occasions on which Plaintiff may first have had notice of a problem with respect to his safety

deposit box. 

While Plaintiff’s cause of action does not appear to have accrued as early as August or

September 1998, evidence Chase submitted with the summary judgment motion indicates that Box

0011385 was leased to a new individual on November 10, 1998. (MSJ App. at 4, 39.) It is therefore

clear that the actions Plaintiff complains of–Chase’s alleged failure to keep the box for his exclusive

use and return the contents to him–occurred at the latest on November 10, 1998. See Pecoraro v.

M & T Bank Corp., 11 A.D.3d 950, 951, 782 N.Y.S.2d 481 (N.Y. Supr. Ct. 4th App. Dept. 2004)

(finding that plaintiffs’ action for conversion based on destruction of safety deposit boxes accrued

on date boxes were delivered to scrap dealer); Bilinski v. Farmers Bank of the State of Del., 1982

 

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WL 172848, at *1 (Del. Super. Ct. Nov. 9, 1982) (finding that statute of limitations on plaintiff’s

claim that contents of her safety deposit box were wrongfully removed by bank for nonpayment of

rent began running when contents of box were removed). Thus, while Chase has not pinpointed the

precise date that the statute of limitations began running on Plaintiff’s breach of contract claim,

Chase has presented evidence that the injury to Plaintiff, if any, would have occurred by November

10, 1998. For the purpose of deciding the instant motion, then, the Court finds that the statute of

limitations on Plaintiff’s claims began to run at the latest on November 10, 1998. 

Plaintiff filed the instant suit in January 2005, more than six years and one month after the

statute of limitations began running on his claims. Accordingly, unless an exception applies, all of

his claims are barred by the statute of limitations. 

2. Discovery Rule

Plaintiff alleges in his complaint that he did not realize that a problem existed with respect

to his safety deposit box until April 2004. (Orig. Pet. at 2.) Thus, Plaintiff appears to raise the

discovery rule as an exception to the application of the statute of limitations to his claims. Chase

contends in its motion for summary judgment that the discovery rule does not apply to Plaintiff

because he failed to exercise reasonable diligence by reviewing his bank statements or visiting the

safety deposit box. (MSJ at 5.)

In Texas, the discovery rule is “a very limited exception to statutes of limitations.” Wagner

& Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001) (citing Computer Assocs. Int'l, Inc. v.

Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996)). “The discovery rule has been applied in limited

categories of cases to defer accrual of a cause of action until the plaintiff knew or, exercising

reasonable diligence, should have known of the facts giving rise to a cause of action.” HECI

 

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Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998) (citing Altai, 918 S.W.2d at 455). The

discovery rule applies “only when the nature of the plaintiff’s injury is both inherently

undiscoverable and objectively verifiable.” Horwood, 58 S.W.2d at 734 (citing Altai, 918 S.W.2d

at 455-56). 

“An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within

the prescribed limitations period despite due diligence.” Horwood, 58 S.W.3d at 734-35 (citing S.V.

v. R.V., 933 S.W.2d at 7; Altai, 918 S.W.2d at 456). “‘Inherently undiscoverable’ does not mean that

a particular plaintiff did not discover his or her particular injury within the applicable limitations

period.” Horwood, 58 S.W.3d at 735 (citing S.V. v. R.V., 933 S.W.2d at 7). Instead, a court

determines “whether an injury is inherently undiscoverable on a categorical basis[.]” Horwood, 58

S.W.3d at 735 (citing Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001)) (other citations

omitted). “[S]uch an approach ‘brings predictability and consistency to the [discovery rule]

jurisprudence.’” Horwood, 58 S.W.3d at 735 (citing Apex Towing Co., 41 S.W.3d at 122) (other

citations omitted). 

The Texas Supreme Court has never considered whether the discovery rule applies to cases

involving injuries such as those alleged by Plaintiff, nor could the Court locate any decisions by

other Texas courts examining the issue. Thus, the Court must determine whether Chase’s alleged

failure to keep Plaintiff’s box for his exclusive use and return the contents of that box to him are the

types of injuries that generally are discoverable by the exercise of reasonable diligence. Horwood,

58 S.W.3d at 735 (citing HECI, 982 S.W.2d at 886). 

Chase contends that Plaintiff could have discovered that the safety deposit box no longer

contained his possessions had he exercised reasonable diligence. (MSJ at 5.) As the holder of a

 

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 3

While, as noted above, no other Texas cases address whether the discovery rule should be applied to the types

of injuries alleged by Plaintiff, a Delaware court addressed a similar claim in Bilinski v. Farmers Bank of the State of

Delaware and reached a conclusion consistent with the Court’s finding herein. The plaintiff in Bilinski brought suit

after discovering that her bank had drilled her safety deposit box for nonpayment of rent. 1982 WL 172848, *1. 

The bank argued that the plaintiff’s suit was barred by the 3 year statute of limitations applicable to her claim,

because it was filed over 3 years after the bank had drilled her safety deposit box. Id. The court found that neither

of the two exceptions to the running of the statute of limitations applied, as the plaintiff had alleged no fraudulent or

affirmative concealment, nor was the “time of discovery” rule applicable. Id. at *2. The court observed that the

decisions applying the discovery rule involved plaintiffs who were laypersons relying on the expertise of

professionals performing services involving no observable or objective factors that could put a plaintiff on notice of

a problem. Id. In contrast, the drilling of the safety deposit box was not “inherently unknowable,” as the plaintiff

could have observed the box at any time she chose to, and the box itself was “objectively observable.” Id. 

Moreover, the lease agreement she signed provided her with notice of the bank’s drilling policy for nonpayment of

rent. Id. On these grounds, the court found that the time of discovery rule did not apply to that fact situation. Id. 

Thus, Bilinski lends support to Court’s decision that the discovery rule does not apply to the injuries alleged by

Plaintiff.

-8-

safety deposit box, Plaintiff clearly had some obligation to exercise reasonable diligence to protect

his interest in that box. Chase presents evidence that it sent Plaintiff monthly bank statements

allowing him to monitor the annual deduction of the safety deposit box fee. (MSJ App. at 5-28.)

In addition, Chase points out that Plaintiff could have visited the safety deposit box at any time.

(MSJ at 5, 8-9.) Reasonable diligence in the leasing of a safety deposit box would include review

of monthly bank statements and occasional physical checks of the box. Plaintiff does not contend

that Chase failed to send statements, withheld access to the box, or fraudulently concealed

information about the safety deposit box, or in any way prevented him from discovering that his box

had been leased to another individual. The Court therefore finds that the injuries Plaintiff complains

of were not inherently undiscoverable. Moreover, had Plaintiff exercised reasonable diligence, he

could have discovered that his safety deposit box had been leased to another individual within the

four-year running of the statute of limitations on the breach of contract claim, or the two-year statute

of limitations on Plaintiff’s other claims. Accordingly, the Court finds that the discovery rule does

not apply to defer the accrual of Plaintiff’s claims.3

 Because the Court finds that the injury alleged

by Plaintiff is not inherently undiscoverable, the Court need not consider whether it is objectively

 

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 4

Chase also argues that all of Plaintiff’s allegations are based on Chase’s alleged breach of a contract with

Plaintiff for the rental of the safety deposit box, and that his other claims are therefore moot under Texas law. (MSJ

at 6, 9.) The Court need not reach this issue, however, based on its finding that the all of Plaintiff’s claims are

barred by the statute of limitations. 

-9-

verifiable. Horwood, 58 S.W.3d at 737. 

In sum, Chase has established the affirmative defense of limitations by conclusively showing

that Plaintiff’s causes of action accrued more than 4 years before he filed suit. In addition, Chase

has demonstrated that no genuine issue of material fact exists with respect to whether the discovery

rule applies to the injuries alleged by Plaintiff. Thus, Chase has shown that Plaintiff’s action is

barred by the statute of limitations. Plaintiff, who did not respond to Chase’s motion, has failed to

adduce summary judgment proof raising a fact issue with respect to the application of the statute of

limitations or an exception thereto. Accordingly, the Court finds that Chase’s motion for summary

judgment based on the statute of limitations should be granted.4

 

IV. CONCLUSION

For the foregoing reasons, Defendant JPMorgan Chase Bank, N.A.’s Motion for Summary

Judgment is GRANTED, and Plaintiff’s claims are DISMISSED with prejudice.

SO ORDERED on this 5th day of January, 2006.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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