IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

PAUL FLETCHER, )

)

Plaintiff, )

) Cause No. 2:14-CV-231

vs. )

)

HOEPPNER WAGNER & EVANS, )

LLP, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on: (1) Defendant Wayne

Golomb’s Motion For Summary Judgment, filed by Defendant, Wayne

Golomb, on January 9, 2017 (DE #137); (2) Defendant Wayne Golomb’s

Motion For Sanctions, filed by Defendant, Wayne Golomb, on January

9, 2017 (DE #139); and (3) Defendant Wayne Golomb’s Motion to

Strike Certain Exhibits, filed by Defendant, Wayne Golomb, on July

11, 2017 (DE #196). For the reasons set forth below, the Motion

for Summary Judgment (DE #137) is GRANTED, and all claims against

Defendant Wayne Golomb (Counts II-IV of the first amended

complaint), are DISMISSED WITH PREJUDICE. Additionally, the Motion

for Sanctions (DE #139) is DENIED. Finally, the Motion to Strike

Certain Exhibits (DE #196) is DENIED. This case remains pending on

Count I against Defendant, Hoeppner Wagner & Evans, LLP. 

BACKGROUND

Plaintiff, Paul Fletcher, who is currently pro se, has
asserted three claims against Defendant, Wayne Golomb: constructive

fraud, constructive trust, and “accounting and turnover.” (DE #38,

First Am. Compl.) The instant case stems from Fletcher’s belief

that he is entitled to inherit money after his friend Scott

Taylor’s death, and his belief that Wayne Golomb and another

individual, Mark Zupan, conspired together to have Taylor’s

beneficiary changed unbeknownst to Taylor. Specifically, Fletcher

believes that Zupan impersonated Taylor on a telephone call to

Fidelity requesting a beneficiary change form, and that Taylor’s

signature was forged on that document. (DE #189 at 22-23.) Taylor

entrusted Golomb to manage some of his financial accounts, and

Golomb had limited trading authority on three of Taylor’s Fidelity

retirement accounts. 

Defendant, Wayne Golomb, filed the instant motion for summary

judgment on January 9, 2017 (DE #137), asking for judgment on the

claims against Golomb. On January 19, 2017, Golomb filed a notice

of the summary judgment motion, alerting pro se Plaintiff to his

duty to respond in accordance with Timms v. Frank, 953 F.2d 281

(7th Cir. 1992). After a series of extensions and other pretrial

motions, Fletcher filed a response on June 13, 2017 (DE #189). On

July 11, 2017, Golomb filed a reply (DE #198). Fletcher then filed

a surreply on August 7, 2017 (DE #203). 

On the same day he filed his motion for summary judgment,

Golomb also filed a motion for sanctions (DE #139). Golomb argues

2
that from the beginning of this litigation, it has been clear that

Fletcher lacks any evidence supporting his claims against Golomb,

and the case is patently frivolous. As such, Golomb requests the

Court impose sanctions and compensate Golomb for the costs and fees

expended in defending this alleged frivolous claim. In his

response filed on February 16, 2017, Fletcher contends that he does

possess circumstantial evidence to support his claims, and that he

has been actively seeking additional discovery during the

litigation, so his claims cannot be frivolous. (DE #154). Golomb

filed a reply on February 22, 2017 (DE #158), arguing Fletcher’s

response was untimely, and that sanctions are appropriate and

warranted. 

On July 11, 2017, Golomb filed a Rule 56 motion to strike

certain exhibits that Plaintiff attached to his response in

opposition to Golomb’s motion for summary judgment. (DE #196.)

Fletcher filed a response in opposition to the motion to strike on

August 7, 2017. (DE #202.) 

All of the instant motions are fully briefed and ready for

adjudication. 

DISCUSSION 

Undisputed Facts

This case involves a lengthy set of facts. On July 7, 2014,

Plaintiff filed a pro se Complaint for Legal Malpractice in the

above captioned matter (DE #1). On October 17, 2014, before

3
service was made on any defendant, Attorney Alison Downs Spanner

appeared on behalf of Fletcher (DE #6). Shortly thereafter, on

November 17, 2014, Attorneys Donald L. Johnson and Julie A. Boynton

filed Applications to Appear Pro Hac Vice on behalf of Fletcher (DE

##10, 11). Attorney Spanner withdrew her appearance on December

11, 2014 (DE ##20, 21). Attorneys Johnson and Boynton withdrew

their appearances in August and November 2016, and Fletcher has

represented himself pro se ever since. 

On March 6, 2015, Plaintiff, by counsel, filed his Amended

Complaint (DE #38). In the Amended Complaint, Plaintiff alleges

that Taylor told Fletcher he was the beneficiary of his investment

accounts which were valued at just under $1,000,000.00. (DE# 38 at

¶ 17.) Plaintiff further alleges that based on "conversations

which Taylor had with Plaintiff and other friends before his death,

[the defendant] Golomb had control over Taylor's accounts at

Fidelity and approximately $500,000 in maturing certificates of

deposit belonging to Taylor." (DE 38 at ¶ 21). Despite these

claims, Plaintiff acknowledges in his Amended Complaint that he

"has been unable to corroborate with documentary evidence what he

had been told by Taylor." (DE 38 at ¶ 89). However, Fletcher does

attach documents to his memorandum in opposition showing that

Fletcher was at one point the primary beneficiary on the three

Fidelity retirement accounts. (DE #189-1, Ex. A.) 

Golomb previously filed a Motion to Dismiss for Failure to

4
State a Claim with this Court on April 20, 2015 (DE #46). Golomb

argued the Amended Complaint only contained self-serving,

unsupported conspiracy theories (DE #46). Plaintiff acknowledged

in his response that he lacked evidentiary support for his

allegations against Golomb; however, he cast blame on Golomb for

failing to disclose information and documents, and on his own

former attorneys. (DE #60.) This Court denied Golomb’s motion to

dismiss on July 29, 2015 (DE #66). In considering the procedural

posture of the case, this Court found Plaintiff had successfully

pled his causes of action when the facts were construed in the

light most favorable to Plaintiff (as they must be at the dismissal

stage). (DE #66).

Since the denial of Golomb’s motion to dismiss, this matter

has been subjected to more than a year of discovery. This

discovery has included the depositions of Wayne Golomb, Paul

Fletcher, and Carole Wockner (Mr. Fletcher's wife). It has also

included the exchange of written discovery, including

Interrogatories, Requests for Production and Requests for

Admissions. Plaintiff initially claimed in his Amended Complaint

and response to the motion to dismiss that he did not have

evidentiary support for his allegations because Golomb supposedly

had the information. Therefore, Plaintiff issued Interrogatories

to Golomb. (See DE #140-1, Ex. A.) In these Interrogatories,

Golomb was asked about the current location of funds or assets that

5
belonged to Scott Taylor. (Id. at Interrogatory No. 1.) In

response, Golomb answered that his "involvement with Scott Taylor's

investment accounts was limited to having trading authority as to

some of Scott Taylor's retirement accounts held by Fidelity

Investments during Scott Taylor's lifetime." Id. Golomb further

indicated that he had no record of those accounts. Id. Golomb was

also asked whether he was currently in possession or control of any

of Mr. Taylor's assets, and Golomb stated that he was not. (Id. at

Interrogatory No. 15.) In addition to Golomb having limited

trading authority over Taylor’s Fidelity retirement accounts, they

had another relationship - Taylor was also a skilled mechanic who

worked on Golomb’s cars. (First Am. Compl. ¶¶ 13, 19.)

Plaintiff also served Golomb with Requests for Production. 

(See DE #140-2, Ex. B.) At that time, Plaintiff requested that

Golomb produce, inter alia, the following materials:

Your entire file related to Scott Taylor.

Documents related to any funds or assets belonging to or in

which Scott Taylor had an interest that you held, received,

managed, accessed, controlled, invested, transacted, advised,

kept, or otherwise had any involvement including but not

limited to account statements, cancelled checks, portfolios,

and the like.

Documents reflecting any transfer of funds or assets owned by

Scott Taylor or in which Scott Taylor transferred to you, a

relative of yours, an agent of yours, or a designee of yours.

Documents related to any funds you held, received, accessed,

managed, controlled, invested, transacted, advised, kept, or

otherwise had any involvement which Scott Taylor owned or had

an interest.

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Documents related to or concerning Scott Taylor and/or his

assets.

All certificates of deposit in which Scott Taylor had an

interest.

Statements from any stock brokerage firms or from commodity

brokerage firms for accounts wholly or partially in the name

of Scott Taylor or under the name of any other person or

entity which are being held for the benefit of Scott Taylor.

Id. In response to each of these requests, Golomb responded that

he did not have any responsive documents. Id. 

On March 23, 2016, Plaintiff took the deposition of Golomb. 

Golomb testified that during the last two years of Taylor’s life,

Taylor “was not interested in whatever happened to the money” and

Golomb did not remember making trades for him anymore. (Golomb

Dep. at 39-40.) Yet, Fletcher points to Fidelity’s Symphony log

which shows that Golomb was still calling about Taylor’s accounts,

making certain actions on them, requesting information about them,

and trying to gain additional trading authorization, even through

2007 and 2008. (DE #189-3, Ex. E.) 

Later during the litigation, Golomb issued Requests for

Admissions to the Plaintiff in June 2016. (See DE #140-3, Ex. C.) 

Plaintiff was first asked to admit that he does not have any

evidence that Scott Taylor owned any certificates of deposit at the

time of his death. (Id. at Request No. 1.) Plaintiff said he had

received documents from Fidelity and Chase, but he was still

"awaiting documents and deposition testimony." Id. Similarly,

Plaintiff was asked to admit that he did not have any evidence that

7
Golomb possessed or controlled any certificates of deposit that may

have been held by Taylor. (Id. at Request No. 2.) Plaintiff said

he was unable to answer because "he is awaiting documents and

deposition testimony which may establish who has the CD proceeds." 

Id. 

In the Requests for Admissions, Plaintiff was further asked to

admit that he does not have any evidence that Golomb conspired or

collaborated with Mark Zupan, or anyone else, to change Mr.

Taylor's beneficiaries on any accounts. (Id. at Request No. 6.) 

Plaintiff indicated that he "simply is unable based on the

information available to him to admit or deny this allegation." 

Id. Similarly, Plaintiff was "simply [ ] unable based on the

information available to him to admit or deny" whether he had any

evidence that Golomb, or any other individual, forged Taylor's name

on any beneficiary form. (Id. at Request Nos. 7 and 8.) Plaintiff

was also "simply [ ] unable based on the information available to

him to admit or deny" whether he had any evidence that Golomb

conspired with anyone to deprive Plaintiff of any assets from

Taylor's estate or retirement accounts; whether he had any evidence

that Golomb wrongfully obtained any assets or funds from Taylor; or

whether he had any evidence that Golomb was aware that Scott Taylor

had changed his beneficiary on any of his accounts. (Id. at

Request Nos. 9, 10 and 12.) Finally, Plaintiff was unable to admit

or deny whether he had any evidence that Golomb withheld or

8
transferred any funds belonging to Plaintiff or whether Golomb

currently holds any funds that belong or belonged to Taylor or the

plaintiff because "he is awaiting documents and deposition

testimony." (Id. at Request Nos. 13 and 14.)

On October 12, 2016, Plaintiff’s deposition was taken. (See

DE #140-4, Ex. D, Fletcher Dep. at 1.) During his deposition,

Fletcher was asked why he sued Golomb. (Id. at p. 199, ll. 14-15.) 

In response, Plaintiff indicated, "based on a lot of the phone

records from AT&T that he was somehow involved with Mark Zupan in

controlling what transpired with Scott's savings." (Id. at p. 199,

ll. 16-19.) Plaintiff was additionally questioned:

Q: Okay. And you mentioned phone records that showed

some calls between Mr. Zupan and Mr. Golomb; is that right?

A: Yes.

Q: And correct me if I'm wrong, but those phone records show

who placed the call; is that right?

A: Yes.

Q: And the duration of the call, is that right?

A: Yes.

Q: But they do not show, obviously, a transcript of the call?

A: No.

Q: So, is it fair to say that you do not have any information

regarding what was discussed during any of those - -

A: No.

Q: Telephone conversations?

A: No. I don't have any information.

9
Q: So, you don't know whether these accounts were discussed

during any of those conversations, is that correct?

A: I wouldn't be able to prove it, no.

(Id. at p. 201, ll. 18-25; p. 202, ll. 1-14.)

Fletcher has attached to his memorandum in opposition to the

motion for summary judgment Fidelity “symphony logs” for Taylor’s

accounts, which, while somewhat difficult for the Court to

decipher, show dates and times of phone calls about Taylor’s

Fidelity account, and notes by the Fidelity employee about each

conversation. (DE #189-1 Ex. E.) While Golomb testified during

his deposition that he never did anything to assist Taylor in

changing beneficiaries (Golomb Dep. at 117-18), Kim Rice from

Fidelity stated in her deposition in the underlying state case that

Golomb asked her to send Taylor a beneficiary change form. (Rice

Dep., DE #189-5, Ex. X at 56-57.) Rice testified that she returned

Taylor’s telephone call (Fletcher believes Zupan impersonated

Taylor during this call), and per Taylor’s request, she pre-filled

Mark Zupan’s name and information on the change of beneficiary

form, and then sent it to Taylor’s home in Arkansas for his

signature. (Id. at 23-29.) Fletcher has also produced Zupan’s

phone records which show that between January 1, 2008, through

early October 2008, Golomb called Zupan’s home phone number 6

times. (DE #189-4, Ex. R.) Finally, while Golomb testified during

his deposition that he did not know if Taylor had CD accounts

(Golomb Dep. at 30-31), there is evidence in the Fidelity Symphony

10
Log that might support an inference that he did know about the CDs

(DE #189-1, Ex. E). 

Plaintiff was also asked during his deposition about his

allegations pertaining to the alleged forgery of the beneficiary

form. (DE #138-3, Fletcher Dep. at 209-210.) Plaintiff conceded

that he did not have any "physical evidence" that the change of

beneficiary form was falsified in any way. (Id. at 211-12.) 

Further, Plaintiff testified that he did not have any evidence that

Golomb had any knowledge of any individual forging Taylor's name on

any beneficiary form. (Id. at 218.) Plaintiff was asked during

his deposition whether he had any evidence that Golomb held

$500,000.00 in certificates of deposit owned by Mr. Taylor, and he

admitted he did not have any such evidence. (Id. at 214.)

Similarly, Plaintiff testified that he did not have any evidence of

certificates of deposit held by Scott Taylor at all at the time of

his death. (Id. at 216.) In opposition to the motion for summary

judgment, Fletcher has now attached documents as exhibits showing

there were CD accounts held at Chase Bank in Crown Point, Indiana,

but there is no evidence that Fletcher was ever a beneficiary on

these accounts (only that he was at one point the beneficiary on

the three retirement accounts at Fidelity), or that Golomb had any

trading authority on the Chase Bank CD accounts. (DE #189-2, Ex.

F.) 

When asked about the alleged conspiracy between Golomb and

11
Mark Zupan, Plaintiff again indicated that he does not have any

direct evidence to support this claim. (Fletcher Dep. at 217-18.) 

Plaintiff also admitted that he did not have any evidence that

Golomb wrongfully obtained any assets or funds. (Id. at 219-20.) 

However, Taylor’s mother did give Golomb $30,000 afer Taylor died,

because, according to Elsie Taylor, her son made a mistake on one

of Golomb’s engines and he would have liked Golomb to be

compensated for it. (Golomb Dep. at 128.) 

I. Motion to Strike Certain Exhibits

Golomb moves to strike certain exhibits attached to Fletcher’s

response in opposition to the motion for summary judgment. He

argues that Exhibits A-F, L, and R-W (documents from Fidelity,

JPMorgan Chase, probate, AT&T call records, and Taylor’s driver

records), are not authenticated and inadmissible hearsay. (DE

#196.) Additionally, he argues that Exhibits J, K, N, and O

(affidavits), should be stricken because they are not based on

personal knowledge and they contain unsupported speculation,

hearsay, and conclusory statements, and Exhibit Y should be

stricken because it was not produced in discovery. (Id.) Finally,

Golomb argues that Exhibits A through Y should be stricken because

they are irrelevant to any pending claim before the court. (Id.) 

 As to the argument that the call records and financial

records are unauthenticated, on a motion for summary judgment, “[a]

party may object that the material cited to support or dispute a

12
fact cannot be presented in a form that would be admissible in

evidence.” Fed. R. Civ. P. 56(c)(2) (emphasis added). “In other

words, the Court must determine whether the material can be

presented in a form that would be admissible at trial, not whether

the material is admissible in its present form.” Stevens v.

Interactive Fin. Advisors, Inc., No. 11 C 2223, 2015 WL 791384, at

*2 (N.D. Ill. Feb. 24, 2015); see also Olson v. Morgan, 750 F.3d

708, 714 (7th Cir. 2014) (“We note that the Federal Rules of Civil

Procedure allow parties to oppose summary judgment with materials

that would be inadmissible at trial so long as facts therein could

later be presented in an admissible form.”) (emphasis in original).

Here, Golomb has not argued that any of the documents are not what

they purport to be, or that they cannot be presented in a form that

would be admissible as evidence. 

With regards to the affidavits and other attached documents,

motions to strike are heavily disfavored, and usually only granted

in circumstances where the contested evidence causes prejudice to

the moving party. Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695

(N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303,

2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007). Furthermore, it

is the function of this Court, with or without a motion to strike,

to carefully review the evidence and to eliminate from

consideration any argument, conclusions, and assertions unsupported

by the documented evidence of record offered in support of the

13
statement. See, e.g., S.E.C. v. KPMG LLP, 412 F.Supp.2d 349, 392

(S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co.,

Inc., No. 04 C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D.

Ill. Apr. 10, 2016); Tibbetts v. RadioShack Corp., No. 03 C 2249,

2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v.

Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004). 

In this case, the Court has sifted through the voluminous

evidence and has considered it under the applicable federal rules,

giving each piece the credit to which it is due. Accordingly, the

Court denies the motion to strike (DE #196) as unnecessary. 

II. Motion for Summary Judgment

Summary judgment must be granted when “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). A genuine

dispute of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986). Not every dispute between the

parties makes summary judgment inappropriate; “[o]nly disputes over

facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Id. To

determine whether a genuine dispute of material fact exists, the

Court must construe all facts in the light most favorable to the

non-moving party and draw all reasonable inferences in that party’s

14
favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). 

However, “a court may not make credibility determinations, weigh

the evidence, or decide which inferences to draw from the facts;

these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003) (citations omitted). 

A party opposing a properly supported summary judgment motion

may not rely on allegations in his own pleading but rather must

“marshal and present the court with the evidence [he] contends will

prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d

651, 654 (7th Cir. 2010). “[I]nferences relying on mere

speculation or conjecture will not suffice.” Stephens v. Erickson,

569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the nonmoving party fails to establish the existence of an essential

element on which he bears the burden of proof at trial, summary

judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006). 

Before analyzing the three claims brought by Fletcher, the

Court addresses Golomb’s request that it take judicial notice of a

state court case: Fletcher filed a forgery suit against Mark Zupan

in Lake Superior Court under Cause No. 45D02-1405-PL-00014, in

which following a bench trial, on July 22, 2016, the Honorable

Hawkins entered a judgment in favor of the defendant. (DE #138, at

3 n. 1.) Fletcher opposes the request for judicial notice, arguing

it would be prejudicial to him because of his attorney’s deficient

15
performance at that trial. (DE #189 at 2.) Court records are the

most commonly noticed facts, and it is proper for this Court to

take judicial notice of the state case against Zupan. Gen. Elec.

Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081-82

(7th Cir. 1997); Daniel v. Cook County, 833 F.3d 728, 742 (7th Cir.

2016) (“Courts routinely take judicial notice of the actions of

other courts or the contents of filings in other courts.”); Fed. R.

Evid. 201(b). 

On the other hand, the Court will not treat the decision by

Judge Hawkins as collateral estoppel in this case, because Golomb

only first raised his collateral estoppel argument in his reply

memorandum. Although this argument may have merit, arguments

raised for the first time in a party’s reply brief are waived, and

the argument is therefore not considered by the Court. Cameron v.

Frances Slocum Bank & Trust Co., 824 F.2d 570, 575 n.4 (7th Cir.

1987); see also Shlay v. Montgomery, 802 F.2d 918, 922 n.2 (7th

Cir. 1986). 

A. Constructive Fraud

Some of Fletcher’s evidence seems to go against statements

Golomb made during his deposition. However, even if we take

Fletcher’s evidence as true - that Golomb was active with Taylor’s

accounts the few years before he died, that he knew about the Chase

CDs, that Golomb spoke with Rice from Fidelity and let her know

that Taylor would be requesting a change of beneficiary form, and

16
that Golomb and Zupan spoke on the phone at times, this does not

alter or lessen Fletcher’s duty to properly establish a cause of

action. 

For constructive fraud, a plaintiff must plead: (1) a duty

owing by the party to be charged to the complaining party due to

their relationship; (2) violation of that duty by the making of

deceptive material misrepresentations of past or existing facts or

remaining silent when a duty to speak exists; (3) reliance thereon

by the complaining party; (4) injury to the complaining party as a

proximate result thereof; and (5) the gaining of an advantage by

the party to be charged at the expense of the complaining party. 

Demming v. Underwood, 943 N.E.2d 878, 892 (Ind. Ct. App. 2011)

(citing Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind. 1996)). 

Importantly, the plaintiff has the burden of proving the first and

last of these elements. Demming, 943 N.E.2d at 892. In other

words, to prove constructive fraud, Fletcher must show the

existence of a duty owed by Golomb to him because of their

relationship, and that Golomb gained an advantage. See Morfin v.

Estate of Martinez, 831 N.E.2d 791, 802 (Ind. Ct. App. 2005). 

The duty can arise “in one of two ways: by virtue of the

existence of a fiduciary relationship, or in the case where there

is a buyer and a seller, where one party may possess knowledge not

possessed by the other and may thereby enjoy a position of

superiority over the other.” Morfin, 831 N.E.2d at 802. 

17
Generally, whether a legal duty exists between parties is a

question of law. See Purcell v. Old Nat’l Bank, 972 N.E.2d 835,

842-43 (Ind. 2012). 

Golomb argues that there is no fiduciary relationship between

Golomb and Fletcher. (DE #138 at 10.) “A confidential or fiduciary

relationship exists when confidence is reposed by one party in

another with resulting superiority and influence exercised by the

other.” Morfin, 831 N.E.2d at 802 (quotation omitted); see also No

Baloney Mktg., LLC v. Ryan, No. 1:09-cv-0200-SEB-TAB, 2010 WL

1286720 (S.D. Ind. Mar. 26, 2010). In this case, it cannot be said

that Fletcher gave his confidence to Golomb, as it was Taylor who

gave Golomb limited trading authority over the Fidelity investment

accounts. “Examples of common relationships where Indiana courts

have recognized the potential for a fiduciary duty include

‘relations of attorney and client, principal and agent, husband and

wife, and parent and child.’” Zusy v. Int’l Med. Group., Inc., 500

F.Supp.2d 1087, 1099 (S.D. Ind. 2007) (quoting Sanders v. Townsend,

582 N.E.2d 355, 358 (Ind. 1991)). Fletcher and Golomb do not fit

neatly into any of these recognized categories. Moreover, a

trustee owes a fiduciary duty to a trust’s beneficiaries and is

obligated to carry out the trust according to its terms and to act

with fidelity and good faith. In re Estate of Muppavarapu, 836

N.E.2d 74, 77 (Ill. App. Ct. 2005). Yet, Golomb and Fletcher do

not exactly have a trustee/beneficiary relationship either, as

18
Fletcher himself quotes Fidelity’s Trading Authorization scope when

acting on behalf of account holder Taylor, which gave Golomb

limited trading authority to: buy and sell securities in the

account holder’s account; trade in the owner’s account; and receive

trade confirmations and account statements. (DE #189 at 8; Pl.’s

Ex. D.) 

Fletcher provides the Court with no legal argument or case law

in support of the proposition that Golomb (who had limited trading

authority on some of Taylor’s retirement accounts held by

Fidelity), owes Fletcher (the at one time beneficiary on those

accounts), a fiduciary duty. While it seems possible that maybe

Golomb owed Fletcher a duty, as a beneficiary, to properly manage

the Fidelity funds so Fletcher would have something to inherit, it

is a further stretch that Golomb owed Fletcher a duty to protect

his status as beneficiary (or, as Fletcher alleges, to not assist

his beneficiary status in being fraudulently changed). Moreover,

there is no evidence in the record that Golomb had the power to

change the beneficiary on Taylor’s behalf. As such, it appears

that Fletcher has not established a fiduciary relationship between

himself and Golomb. 

However, even if Fletcher could show that Golomb owed him a

fiduciary duty, Fletcher still cannot satisfy the fifth part of the

test - that Golomb gained an advantage at Fletcher’s expense. 

Constructive fraud arises where a course of conduct “would secure

19
an unconscionable advantage.” In re Rueth Dev. Co., 976 N.E.2d 42,

52 (Ind. Ct. App. 2012). Fletcher has not presented any evidence

that Golomb received any money from funds or certificates of

deposit upon Taylor’s death, much less presented evidence that

Golomb received money from funds that would have gone to Fletcher

if Fletcher was still the beneficiary. Moreover, Golomb has stated

he does not currently hold any funds that belonged to either Taylor

or Fletcher, and Fletcher has produced no contrary evidence. 

The closest Fletcher comes to arguing that Golomb gained

financially at Fletcher’s expense, is when he points out that

Golomb received $30,000 from Elsie Taylor (Taylor’s mother). 

Taylor used to work on Golomb’s engines, and according to Golomb:

“Scott made a mistake on one of my engines. And it had to be

fixed. And Scott felt bad about it and apparently had told her,

and she brought the matter up. And she said that Scott would have

liked you to have been compensated for it.” (Golomb Dep. at 128.) 

But this was a gift from Taylor’s mother, after Taylor’s death, for

money that Taylor felt he owed Golomb from a mistake he made on his

car. There is no evidence whatsoever that this money came out of

the retirement account that Golomb had limited trading authority

over, or that Fletcher should have received this money if he was

still the designated beneficiary. Therefore, Fletcher has not

shown that Golomb gained financially at the expense of Fletcher. 

Consequently, summary judgment is proper on Count II against

20
Wayne Golomb for Constructive Fraud. 

B. Constructive Trust

A constructive trust is “a legal fiction, a common-law remedy

in equity that may only exist by the grace of judicial action.” In

re Nova Tool & Eng’g Inc., 228 B.R. 678, 680 (Bankr. N.D. Ind.

1998) (quotation omitted). It is an “equitable remedy for certain

claims in restitution.” In re Mississippi Valley Livestock, Inc.,

745 F.3d 299, 305 (7th Cir. 2014). “[A] constructive trust may be

imposed where a person holding title to property is subject to an

equitable duty to convey it to another on the ground that he or she

would be unjustly enriched if permitted to retain it.” Demming v.

Underwood, 943 N.E.2d 878, 895 (Ind. Ct. App. 2011). “An equitable

duty to convey the property may arise if the property was acquired

through a breach of fiduciary duty or constructive fraud.” Id.

Fletcher alleges the following in support of his request for

a constructive trust: 

Golomb is believed to have in his possession funds

which he was holding and managing for Taylor which

were intended to benefit Plaintiff on Taylor’s

death and which Golomb had an actual or equitable

duty not to keep but to convey to Plaintiff in

accord with Taylor’s stated wishes. It was

Taylor’s stated wish that the accounts not be

probated but that Plaintiff be named as beneficiary

on the accounts so that the accounts would go to

Plaintiff outside of probate. 

(First Am. Compl. ¶ 98.) However, the undisputed facts show that

Golomb does not possess, hold, or control any property belonging to

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either Taylor or Fletcher. (See DE #140-2, Ex. B, Interrogatory

No. 15.) Indeed, Fletcher himself quotes the Fidelity Trading

Authorization agreement which states that authorization privileges

terminate upon notification in writing of the death of the account

owner. (DE #189 at 9, Ex. D.) As such, there is no property in

his possession that should be conveyed to Fletcher; moreover, as

established earlier, there is no evidence of any constructive

fraud. As such, summary judgment is appropriate on Count III

against Wayne Golomb for constructive trust. 

C. Accounting and Turnover

Fletcher also seeks the equitable relief of accounting and

turnover. In support, he alleges:

Golomb is holding funds which he was managing for

Taylor and which were intended to be given to

Plaintiff upon Taylor’s death and which information

and belief Golomb had a duty to tender the funds to

Plaintiff, Taylor’s beneficiary, upon Taylor’s

death.

(First Am. Compl. ¶ 100.) As with the previous claim, this

allegation fails because there is no evidence that Golomb holds or

controls any funds belonging to Taylor or Fletcher. Indeed, the

undisputed evidence shows the contrary. 

As such, summary judgment is warranted on Count IV against

Wayne Golomb for accounting and turnover. 

III. Motion for Sanctions

Defendant Golomb has filed a motion for sanctions pursuant to

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Rule 11 of the Federal Rules of Civil Procedure as well as 28

U.S.C. § 1927, contending Plaintiff has pursued a frivolous

lawsuit.

Rule 11(c)(2) provides that a motion for sanctions “must be

served under Rule 5, but it must not be filed or be presented to

the court if the challenged paper, claim, defense, contention, or

denial is withdrawn or appropriately corrected within 21 days after

service . . . .” Fed. R. Civ. P. 11(c)(2); see also Matrix IV,

Inc. v. Am. Nat. Bank & Trust Co. Of Chicago, 649 F.3d 539, 552

(7th Cir. 2011) (“Rule 11(c) (2) provides that a motion for

sanctions must be served on the opposing party, but that it cannot

be filed with the court until 21 days have passed from the date of

service of the motion.”). This 21-day “safe harbor” provision is

“not merely an empty formality.” Divane v. Krull Elec. Co., 200

F.3d 1020, 1026 (7th Cir. 1999). While a minor technical violation

may be excused (for example, where the party seeking sanctions sent

a letter or demand more than 21 days in advance rather than a

formal motion), see Egan v. Huntington Copper Moody & Maguire,

Inc., No. 12 C 9034, 2015 WL 1631547, at *3 (N.D. Ill. Apr. 10,

2015), that is not the case here, where Golomb did not alert

Fletcher in advance that he would seek sanctions if Fletcher did

not dismiss the allegations against Golomb.1 “[A] district court

1 Golomb asserts in his memorandum that “[a]t several points

in this litigation,” it became clear that there was no evidence

supporting Plaintiff’s claims, and “[a]t each of these points,

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cannot impose Rule 11 sanctions by motion where the movant ignores

the safe harbor.” Egan, 2015 WL 1631547, at *3 (citing Divane, 200

F.3d at 1025). Therefore, Golomb cannot prevail under Rule 11. 

Golomb’s additional seeking of sanctions under section 1927 is

also unsuccessful. 28 U.S.C. section 1927 provides that “[a]ny

attorney or other person admitted to conduct cases in any court .

. . who so multiplies the proceedings in any case unreasonably and

vexatiously may be required by the court to satisfy personally the

excess costs, expenses, and attorneys’ fees reasonably incurred

because of such conduct.” 28 U.S.C. § 1927. A court can impose

such statutory sanctions against attorneys upon a showing of

subjective or objective bad faith. Kotsilieris v. Chalmers, 966

F.2d 1181, 1184 (7th Cir. 1992). Subjective bad faith must be

demonstrated “by evidence of malice or ill will,” and objective bad

faith may be shown by evidence of “extremely negligent conduct,

like reckless and indifferent conduct.” Granite State Ins. Co. v.

Pulliam Enterps., Inc., No. 3:11-cv-432, 2015 WL 8904807, at *3

(N.D. Ind. Nov. 17, 2015)(quoting Webster v. Hilex Poly Co., No.

1:06-cv-529-RLY-DML, 2008 WL 5235975, at *2 (S.D. Ind. Dec. 15,

2008)). Reckless conduct is sanctionable when “the attorney’s

actions [are] generally so completely without merit as to require

the plaintiff had the opportunity to voluntarily dismiss” (DE

#140 at 9), but nowhere in the motion for sanctions or

accompanying memorandum does Golomb state he gave Plaintiff the

requisite notice that if he did not dismiss his claims, Golomb

would seek Rule 11 sanctions. 

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the conclusion that they must have been undertaken for some

improper purpose.” Id. (quoting Camarillo v. Pabey, No. 2:05-CV455 PS, 2007 WL 3102144, at *7 (N.D. Ind. Oct. 22, 2007)).

While there is some controversy about whether section 1927

could apply to an initial complaint (as opposed to just misconduct

by an attorney during the course of a case), the provision

authorizes the Court to award only “excess costs, expenses, and

attorneys’ fees reasonably incurred because of [the unreasonable

and vexatious conduct].” Egan, 2015 WL 1631547, at *4 (citing

quoting 28 U.S.C. § 1927 (emphasis in original).) Golomb has not

shown which excess costs were caused by Fletcher’s previous

attorneys’ alleged vexatious behavior and consequent multiplication

of the proceedings. Nor has he presented any evidence that his

former attorneys acted with any malice or ill will, or conduct that

must have been undertaken for some improper purpose. As such,

Golomb cannot prevail under section 1927 either. 

CONCLUSION

For the reasons set forth below, the Motion for Summary

Judgment (DE #137) is GRANTED, and all claims against Defendant

Wayne Golomb (Counts II-IV of the first amended complaint), are

DISMISSED WITH PREJUDICE. Additionally, the Motion for Sanctions

(DE #139) is DENIED. Finally, the Motion to Strike Certain

Exhibits (DE #196) is DENIED. This case remains pending on Count

I against Defendant, Hoeppner Wagner & Evans, LLP. 

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DATED: September 25, 2017 /s/ RUDY LOZANO, Judge

United States District Court

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