Park v. Citibank, N.A. (Guam)

• Court: District Court, D. Guam
• Decided: April 7, 2008
• Docket: 1:05-cv-00006
• Status: Unknown

Opinion

1 2 3 4 5 6 DISTRICT COURT OF GUAM 7 TERRITORY OF GUAM 8 9 JIN SOO PARK, Civil Case No. 05-00006 10

Plaintiff, 11 vs. 12 ORDER RE: DEFENDANT’S MOTION FOR 13 CITIBANK, SUMMARY JUDGMENT Defendant. 14 15 16 This matter came before the court for a hearing on the Defendant’s Motion for Summary 17 Judgment on April 1, 2008. The Defendant Citibank argued that Jin Soo Park’s (the “Plaintiff”) 18 claims were barred by the applicable statute of limitations or by a contractual time limitation 19 period. Having considered the parties’ arguments and submissions, as well as relevant caselaw 20 and authority, the court hereby GRANTS the Defendant's motion and issues the following 21 decision. 22 FACTUAL BACKGROUND 23 The Plaintiff is a 50-year-old Korean citizen and resident of Korea who has limited 24 English ability. At one time, he was a licensed ophthalmologist who had opened his own clinic 25 in Inchon City, Korea in 1990. See Docket No. 62, Mem. Supp. Mot., Ex. 1. However, he 26 stopped seeing patients in January or February of 2000 because he felt that people were trying to 27 steal his money and were “attacking” him. Id., Ex. 47; 39: 13-25 and 40:1-25. Eventually, the 28 Plaintiff closed his medical clinic around July 1, 2001. Id., Ex. 2. On July 26, 2001, the Plaintiff 1 was declared a bankrupt. See Docket No. 8, Compl., Ex. 3. 2 In February 1998, the Plaintiff and two of his sisters-in-law, Soon Ie An and Myund Kae 3 Kim came to Guam from Korea and opened and deposited six (6) separate time deposit accounts 4 in the amount of One Hundred Thousand Dollars ($100,000.00) respectively, and one (1) time 5 deposit in the amount of Seventy-Three Thousand Dollars ($73,000.00) for a total of Six 6 Hundred Seventy-Three Thousand Dollars ($673,000.00). The accounts were jointly held by the 7 three of them, with any one of them having the ability to withdraw or otherwise deal with the 8 accounts acting alone. The accounts automatically rolled-over at each thirty-day maturity. See 9 Docket No. 62, Mem. Supp. Mot., Ex. 5. The accounts were governed by certain “Terms and 10 Conditions” as agreed to by the Plaintiff. Id., at 6. The Plaintiff indicated that he had read them 11 several times. Id., at Ex. 48; 25:1-13. 12 In addition to opening the time deposit accounts, the Plaintiff and his two sisters-in-law 13 opened two checking accounts at Citibank Guam. One checking account - No. 595640 - was in 14 all three names, and the other - No. 595659 - was only in the Plaintiff’s name. When the 15 Plaintiff set up the time deposit accounts, Citibank informed him that he could transfer the funds 16 from the deposit accounts to his checking accounts. 17 Thereafter, the Plaintiff attempted to transfer his funds from the deposit accounts to his 18 checking account at Citibank, New York. The Plaintiff alleges that he made numerous requests 19 to transfer funds during the period of October 1998 through September 2000 and again during 20 the period of July 2001 through December 2001. See Docket No. 1, Compl., at ¶¶s 10, 13, 16, 21 18, 20, 20, 22, 26 and 28. He made written requests dated October 2, 1998, November 16, 1998, 22 January 20, 1999, February 10, 1999, May 24, 1999, July 14, 1999, September 12, 1999, 23 December 25, 1999, January 15, 2000, February 15, 2000, April 13, 2000, August 14, 2000 and 24 September 4, 2000. See Docket No. 62, Mem. Supp. Mot., Exs. 7-19. Citibank denies having 25 received any of the 13 transfer requests.1 Although 11 of the 13 letters were supposedly 26 27 1In his complaint, the Plaintiff alleges that he requested that funds be transferred into his active Citibank New York checking account. See Complaint, at ¶ 10. However, a review of the 28 letters produced and that the Plaintiff claims he sent to Citibank (Exs. 7-19) reveal that he requested 1 addressed to Citibank’s Compliance Director, Keen Setiadi,2 she denies receiving any of them. 2 See Docket No. 63, Declaration of Keen Setiadi (“Setiadi Decl.”), at ¶ 25. 3 On July 25, 2001, the Plaintiff alleges that he submitted a written request that Citibank 4 transfer $670,000.00 from his deposit accounts according to his instructions. See Docket No. 1 5 Compl., at ¶ 13. The Plaintiff claims he submitted written instructions again on December 6 and 6 7, 2001 to Citibank that all funds in deposit account should be withdrawn and transferred. 7 The Plaintiff also alleges that he executed and mailed four checks to Citibank directing 8 that it make payment to his New York checking account or to his Salomon Smith Barney 9 account. On or about July 30, 2001, the Plaintiff mailed a check to Citibank in the amount of 10 Three Thousand Dollars ($3,000.00) to be paid to his Citibank New York checking account. 11 See Docket No. 1 Compl., at ¶ 16. 12 On or about August 1, 2001, the Plaintiff mailed a check to Citibank in the amount of 13 Two Thousand Dollars ($2,000.00) to be paid to his Citibank New York checking account. 14 See Docket No. 1 Compl., at ¶ 18. On or about August 3, 2001, the Plaintiff mailed a check to 15 Citibank in the amount of two thousand dollars ($2,000.00) to be paid to his Salomon Smith 16 Barney account. See Docket No. 1, Compl., at ¶ 20. On or about August 4, 2001, the Plaintiff 17 mailed a check to Citibank in the amount of three thousand dollars ($3,000.00) to be paid to his 18 Salomon Smith Barney account. See Docket No. 1, Compl., at ¶ 22. 19 The Plaintiff alleges that the requests were not honored and there was a delay in 20 transferring his funds which caused him great mental distress. He also claims that because of 21 Citibank’s actions, it is responsible for the closure of his medical clinic in 2000 and his 22 designation as bankrupt in July 26, 2000. Id. at ¶ 34. 23 On January 17, 2005, the Plaintiff filed suit against Citibank arising from the delay in 24 transferring his funds. The Plaintiff alleges six counts related to banking transactions involving 25 international or foreign banking and/or banking in a dependency or insular possession of the 26 27 refers to a letter dated October 25, 2000, which was never produced. 28 2Ms. Setiadi’s full title is as Citibank’s Asia Pacific Consumer Bank Anti-Money Laundering 1 United States, namely Guam. In Count I the Plaintiff alleges that he was a depositor with 2 Citibank and that Citibank wrongfully dishonored banking items presented to Citibank. In Count 3 II the Plaintiff alleges that Citibank breached a covenant of good faith and fair dealing with him. 4 In Count III the Plaintiff asserts fraudulent misrepresentation.3 The Plaintiff alleges in Count 5 IIIA that Citibank negligently caused him to suffer emotional distress. In Count IV the Plaintiff 6 alleges that Citibank made negligent misrepresentations relating to banking transactions, and 7 Count V alleges the tortious breach of the covenant of good faith and fair dealing. 8 HISTORY OF INTERACTIONS: 9 As noted, the Plaintiff claims he made several demands to transfer his funds from 1998 10 through September 2000. However, Citibank found no records of such demands. After 11 reviewing its own records, Citibank found that its contact with the Plaintiff began in March of 12 2001. On March 2, 2001, Citibank received a letter purportedly from the Plaintiff in which he 13 claimed he was being persecuted by the South Korean government, informing Citibank that he 14 was trying to escape South Korea, implying that he was trying to evade South Korean laws 15 relating to foreign currency exchanges and instructing Citibank not to release any information to 16 the South Korean government or to his joint account holders. See Docket No. 62, Mem. Supp. 17 Mot., Ex. 20; Docket No. 63, Setiadi Decl. at ¶ 4. The letter instructed Citibank not to transfer 18 funds out of the accounts, even to the joint account holders, which was inconsistent with the 19 terms of the accounts. Id. According to Ms. Setiadi, the bank’s compliance officer, the contents 20 of the letter were suspicious and raised concerns. Id. 21 During June and July of 2001 a person purporting to be the Plaintiff repeatedly called 22 Citibank. Ms. Setiadi gave all employees instructions that telephone calls from the Plaintiff 23 should be routed to her and that Steven Lee, an officer with the bank, would act as a translator. 24 See Docket No. 63, Setiadi Decl., at ¶ 5. The caller was unable to provide the Citibank 25 representatives with the required personal information to confirm his identity. Id. at ¶ 5. During 26 27 3The Complaint contains six causes of action. However, they are misnumbered and the counts for fraud and negligent infliction of emotional distress are both designated as “Count III.” 28 Accordingly, the court will treat the later recited cause of negligent infliction of emotional distress 1 the conversations, the Plaintiff gave Ms. Setiadi and other bank employees inconsistent 2 instructions concerning his account. Id. ¶ 6. In some conversations he wanted to transfer his 3 money to New York, but in others he wanted to transfer his funds to New Zealand. And, in other 4 conversations, he wanted to transfer his money into one or another of his Guam checking 5 accounts. Id. The Plaintiff inquired as to whether he would be able to conduct a transaction if 6 he came to Guam with a passport under a different name and if Citibank could wire funds to 7 New Zealand under a different name. Id. 8 In her translated conversations with the Plaintiff of July 9 and 27, 2001, Ms. Setiadi told 9 the Plaintiff that unless he and his co-account holders came to Guam with the proper 10 identification, Citibank would disallow any transfer of his funds. Setiadi Decl., at ¶ 6. The 11 Plaintiff asked if Citibank would act on instructions made through his attorney. Id. Ms. Setiadi 12 restated that she would need to establish his identity first. Id. 13 On July 12, 2001, the Plaintiff telefaxed another letter to Citibank and said that a “. . . 14 party of Korean people was attacking me and the Korean person (Banker or teller)” should not 15 have access to this account because Korean person is “always connected with Korean Party 16 (political party or religious group organization).” See Docket No. 62, Mem. Supp. Mot., Ex. 21. 17 He complained that Citibank Guam’s Korean speaking employee, Mr. Lee, was a “very high risk 18 person,” and that Mr. Lee’s conduct was “illegal” and should be investigated. Id. He further 19 requested information about how to transfer money “to some New Zealand Bank or U.S. Bank” 20 or to one of his two Guam checking accounts. Id. 21 On July 27, 2001, Citibank received a letter addressed to one of its employees, Rogel E. 22 Bondoc, and an executed Funds Transfer Agreement. See Docket No. 62, Mem. Supp. Mot., 23 Exs. 22-23. The Plaintiff instructed Mr. Bandoc to transfer the time deposit funds to his 24 checking account in New York and alternatively, to transfer them to his checking account on 25 Guam. He stated that “Keen Setiadi (Chinese) and Steve Lee (Korean) absolutely must not be 26 access to those documents [Funds Transfer Agreement].” Id. 27 On July 25, 2007, Ms. Setiadi received a telefax from a Rob Dowler with ABN AMRO 28 Craigs, a bank in New Zealand. Mr. Dowler told Ms. Setiadi that the Plaintiff wanted to transfer 1 “all or part of” of his money and requested instructions. See Docket No. 62, Mem. Supp. Mot., 2 Ex. 24. On August 6, 2001, Ms. Setiadi responded that someone “who claims to be Dr. Park 3 continues to request that funds in accounts held jointly by three individuals be withdraw,” but 4 Citibank had been unable to properly identify the caller. She further informed Mr. Dowler that 5 all three account holders would need to present themselves on Guam with proper identification. 6 Id., Ex. 25. Two days later, Mr. Dowler responded and stated that Citibank’s requirement of 7 having the account holders travel to Guam was “obviously demanding.” See Docket No. 62, 8 Mem. Supp. Mot., Ex. 26. He asked if the Bank might suggest alternative methods for the 9 account holders to identify themselves. Id. 10 In response to Mr. Dowler’s request, Citibank arranged for the Plaintiff and the co- 11 account holders to identify themselves to a Citibank employee in Seoul, Korea, a one, Mr. Kyu- 12 Jin Park. On August 10, 2001, Citibank’s in-house counsel, Joe McDonald, telefaxed Dr. Park 13 and explained the procedure. See Docket No. 62, Mem. Supp. Mot., Ex. 27. Mr. McDonald 14 explained: 15 We have received conflicting information concerning your accounts. In order to safeguard your funds, we have undertaken the strictest scrutiny of any activity 16 remotely connected with your accounts. Please understand that we must adhere to strictest banking standards because of the peculiar facts with which we are faced. 17 Id. 18 On the same day, Mr. Kyu-Jin Park telefaxed a hand written note in Korean asking the Plaintiff 19 to call him. See Docket No. 62, Mem. Supp. Mot., Ex. 28. On August 13, 2001, Mr. McDonald 20 sent the Plaintiff a second letter repeating that he and joint account holders should identify 21 themselves to Kyu-Jin Park in Korea. See Docket No. 62, Mem. Supp. Mot., Ex. 29 Mr. 22 McDonald added “[o]nce we can positively identify the parties concerned, we will proceed to 23 honor your transfer requests which you will course through Mr. Kyu-Jin Park.” Id. 24 On August 22, 2001, the Plaintiff telefaxed Mr. McDonald to inform him that he and the 25 other two account holders had met with Mr. Kyu-Jin Park in Seoul, Korea. See Docket No. 62, 26 Mem. Supp. Mot., Ex. 31. However, he gave no instructions concerning the transfer of his 27 funds. In subsequent correspondences, the Plaintiff expressed concerns about Kyu-Jin Park and 28 1 Exs. 32 and 33. The Plaintiff instructed Mr. McDonald to contact his attorney, Mr. Mark 2 Cowan, for instructions as to what to do with his accounts. “Before transfer our funds you must 3 be contacted with our solicitor, Mr. Mark Cowan regarding Guam Citibank our accounts” and 4 “[for] transfer procedure, should you contact with our solicitor, Mr. Mark Cowan. Now, only 5 when I and my solicitor involve, should you transfer to other account.” Id., at Ex. 32. 6 On August 30, 2001, the Plaintiff telefaxed a letter to Mr. McDonald informing him that 7 “some Officers in Guam Citibank and Seoul-Korea Citibank are to blame for their conducts and 8 money loss, and more.” See Docket No. 62, Mem. Supp. Mot., Ex. 33. “I or we am or are to 9 turn over the court via our lawyer.” Id. He further stated “[o]ur Lawyer and a representative . . . 10 must deal with a transferring course on be-half of us.” Id. 11 On August 21, 2001, Jossiah Antoine from New York Citibank sent a letter informing the 12 Plaintiff that his checking accounts at that branch had been closed and that he would be receiving 13 a check of the balance. The Plaintiff was informed that “[t]he way in which transactions are 14 conducted on your accounts are unsatisfactory.” See Docket No. 62, Mem. Supp. Mot., Ex. 30. 15 On September 20, 2001, Mr. McDonald telefaxed the Plaintiff and told him Citibank had 16 not been contacted by Mr. Cowan and was still waiting for instructions concerning the Plaintiff’s 17 accounts. See Docket No. 62, Mem. Supp. Mot., Ex. 35. 18 On October 2, 2001 the Plaintiff wrote to the then-country manager of Citibank, Renzo 19 Viegas. See Docket No. 62, Mem. Supp. Mot., Ex. 37. The Plaintiff attached copies of the 20 recent letters he had received from Citibank employees, Mr. McDonald, Mr. Kyu-Jin, Eun Joo 21 Lee and Jossiah Antoine See Docket No. 62, Mem. Supp. Mot., Exs. 28, 29, 31, 35 and 36. He 22 stated “we do not accept that we receive” the letters and “we return to your employee’s letters.” 23 Id., Ex. 37. He complained that “Citibank employees prevented to conduct the transaction in 24 Citibank accounts by a lot of methods . . . they intend to divert the funds methodically.” Id. 25 On November 27, 2001, Mr. Eun Joo Lee again wrote to the Plaintiff and informed him 26 that Citibank was still awaiting instructions from the Plaintiff’s attorney, Mr. Cowan, or some 27 other representative as to what to do with the Plaintiff’s accounts. See Docket No. 62, Mem. 28 Supp. Mot., Ex. 38. 1 On December 4, 2001, Mr. McDonald sent the Plaintiff a facsimile. Mr. McDonald told 2 the Plaintiff that he had spoken to Attorney Cowan but that he had not received any instructions. 3 The Plaintiff was additionally informed that Citibank had decided to close the accounts and to 4 issue a “a check for all funds that [he had] on deposit with Citibank N.A. Guam.” See Docket 5 No. 62, Mem. Supp. Mot., Ex. 39. In response, the Plaintiff sent letters dated December 6 and 7, 6 2001 telling Citibank to send the money to him through his New Zealand lawyers. Id., at Exs. 40 7 and 41. 8 On December 20, 2001, Citibank received a letter from the Brookfield Lawyers 9 confirming their authority to act on behalf of the Plaintiff. See Docket No. 62, Mem. Supp. 10 Mot., Ex. 42. On January 18, 2002, Citibank transferred $785,282.10 to Brookfield trust 11 account, which represented the amounts of the time deposit accounts plus One Hundred Twelve 12 Thousand One Hundred Eighty-Two Dollars and ten cents ($112,182.10) in accrued interest. 13 DISCUSSION 14 The Defendant, Citibank now moves this court for summary judgment. Summary 15 judgment is appropriate when the evidence, read in the light most favorable to the nonmoving 16 party, demonstrates that there is no genuine issue as to any material fact, and the moving party is 17 entitled to judgment as a matter of law. Fed. R. Civ. P. 56( c). The party opposing summary 18 judgment cannot rest on conclusory allegations, but must set forth specific facts showing that 19 there is a genuine issue for trial. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988). Moreover, 20 to defeat a summary judgment motion, the nonmoving party must come forward with evidence 21 sufficient to establish the existence of any disputed element essential to that party's case, and for 22 which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 23 322, 102 S.Ct. 2548 (1986). The Defendant’s claims that all of the Plaintiff’s claims are time 24 barred and this court agrees. 25 A. COUNT I - WRONGFUL DISHONOR 26 Count I of the Plaintiff’s complaint asserts a cause of action for wrongful dishonor under 27 28 1 13 Guam Code Ann. § 4202.4 A cause of action for wrongful dishonor is subject to either a 2 three-year limitation period under 7 Guam Code Ann. § 11305(1) as an action upon a liability 3 created by law or a two-year limitations as action for injury caused by a wrongful act or 4 negligence under 7 Guam Code Ann. § 11306. It is unnecessary to characterize the Plaintiff’s 5 claim under either a contract or tort theory because under either, the time period for the 6 Plaintiff’s cause of action is time barred. The Plaintiff’s cause of action accrued on the date 7 when each of his alleged transfer requests were not acted upon. An action for wrongful dishonor 8 has been held to accrue at the time of dishonor. Pera v. Kroger Co., 674 S.W.2d 715, 720 9 (Tenn.1984). Title 13 of Guam Code Ann. § 3122(2)( c) provides that a “cause of action against 10 the obligor of a demand or time certificate of deposit accrues upon demand, . . . .” 13 Guam 11 Code Ann. § 3122(2). A check is dishonored when it is not paid upon presentment. See 13 12 Guam Code Ann. § 3507(a).5 13 With respect to the requests for the transfer of the funds in his deposit accounts and 14 presentment of the four checks, the latest date such a request was made was on or about 15 December 7, 2001. The Plaintiff filed his complaint on January 17, 2005, over four years later. 16 Accordingly, the cause of action for wrongful dishonor concerning the sixteen requests to 17 transfer the deposit account funds and the presentment of the four checks is time barred. 18 B. COUNT II - BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING 19 The Plaintiff alleges that Citibank breached the Covenant of Good Faith and Fair Dealing 20 because of seven written contracts that he entered into with Citibank on February 18, 1998. The 21 Plaintiff argues that Citibank agreed that it would establish accounts for the Plaintiff, “which 22 23 4§4402. Bank’s Liability to Customer for Wrongful Dishonor. A payor bank is liable 24 to its customers for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages provided. If so proximately 25 caused and proved, damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the 26 wrongful dishonor is a question of fact to be determined in each case. 27 5 §3507(1) (a). Dishonor; Holder’s Right of Recourse; Term Allowing Re-Presentment. 28 An instrument is dishonored when (a) a . . . presentment is duly made and due acceptance or 1 included, without limitation, time deposit accounts.” See Docket No. 1, Compl. at ¶ 53. Plaintiff 2 alleges that there was an implied covenant of good faith and fair dealing in these contracts, and 3 that that covenant was broken when Citibank “refused or failed to honor the transfer requests.” 4 See Docket No.1, Compl. at ¶ 55. Plaintiff alleges injuries, including: lost income, the loss of 5 good will and reputation in the business community, and injury to credit standing. Id. at ¶ 57. 6 Under Guam law, tort actions for bad faith are subject to a three year statute of 7 limitations period. 13 GCA § 11305(7). This statute mirrors the California Code of Civil 8 Procedure § 339, subdivision 1. 9 In this case, the contracts, which gave rise to this claim, were entered into between 1998, 10 and December 7, 2001 (the last date of the requested check). See Docket No. 1, Compl. at ¶¶s 11 10-28. Also, all the asserted damages associated with the breach of the covenant of good faith 12 occurred on or before July 26, 2001, the date the Plaintiff declared bankruptcy. Even viewing 13 these facts in the light most favorable to the Plaintiff, the statute of limitations had run on this 14 claim well before the Plaintiff filed his complaint in January of 2005. 15 C. COUNT III - FRAUD 16 Under Guam law, the statute of limitations for fraud actions are three years from the 17 discovery of the facts constituting the fraud. 13 G.C.A. § 11305(4). Discovery of fraud occurs 18 “when the plaintiff discovers he has a cause of action or, through the use of reasonable diligence 19 should have discovered it.” Hanohano v. Gill, No. CV379-90, 1992 WL 97209, at *3 (D. Guam 20 App. Div. 1992). 21 Here, Plaintiff’s fraud claim concerns Citibank’s representation on February 18, 1998, 22 that the Plaintiff could transfer funds from his time deposit accounts to his checking account. 23 See Docket No.1, Compl. at ¶ 60. However, when the Plaintiff made requests for such transfers 24 his requests were denied. For purposes of the statute of limitations, the Plaintiff knew he had a 25 cause of action in 2001, when he unsuccessfully tried to withdraw money from his account on 26 over twenty different occasions. Since the statute of limitations is three years, and the claim was 27 not brought until January of 2005, the Plaintiff’s actions are time-barred. 28 /// 1 D. COUNT III - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 2 The Plaintiff also brings a suit for Negligent Infliction of Emotional Distress (“NIED”) 3 based on Defendant’s refusal to honor sixteen transfer requests, four checks, and one ATM 4 transaction. These requests took place between October of 1998 and December of 2001. The 5 Plaintiff claims that because he was refused access to his account on these occasions, he suffered 6 emotional distress which was a primary cause of his bankruptcy in July of 2001. See Docket 7 No.1, Compl. at ¶ 34. 8 However, the Plaintiff’s claim for Negligent Infliction of Emotional Distress (“NIED”) is 9 subject to a two-year statute of limitations. 7 G.C.A. § 11306(1). The alleged NIED took place 10 from October 1998 until December 2001, however, the Plaintiff did not bring suit until January 11 of 2005. A cause of action accrues “. . . at the time that a suit may be maintained thereon, and 12 from that date forward the applicable statute of limitations begins to run.” Pac. Rock Corp. v. 13 Dept. of Ed., 2001 Guam 21, ¶49 (citing Cannon v. United States, 146 F. Supp. 827, 829 (Ct. Cl. 14 1956)). As a result, under Guam law, the action is time barred. 7 G.C.A. § 11306(1). 15 E. COUNT IV - NEGLIGENT MISREPRESENTATION 16 Similarly, Plaintiff’s claim for Negligent Misrepresentation is subject to a two-year 17 statute of limitations. 7 G.C.A. § 11305(7). The alleged Negligent Misrepresentation took place 18 on February 18, 1998, when the Defendant allegedly made a false statement that the Plaintiff 19 could transfer money from his time deposit to his checking account. Plaintiff, however, did not 20 bring suit until January of 2005. A cause of action accrues “. . . at the time that a suit may be 21 maintained thereon, and from that date forward the applicable statute of limitations begins to 22 run.” Pac. Rock Corp., 2001 Guam 21, ¶49. Similar to the fraud claim, once Citibank refused 23 the Plaintiff access to the account on multiple occasions, the statute of limitations began to run. 24 The Plaintiff was clearly on notice that Citibank was not honoring its representation that the 25 Plaintiff could freely transfer funds. Because the Plaintiff did not bring suit until over four years 26 after his cause of action accrued, under Guam law, the action is time barred. 7 G.C.A. § 27 11305(7). 28 /// 1 F. COUNT V -TORTIOUS BREACH OF COVENANT OF GOOD FAITH & FAIR DEALING 2 As stated above, the statute of limitations for a contract action for breach of the covenant 3 of good faith and fair dealing is four years. 7 G.C.A. §11303(1). The Plaintiff argues that each 4 time that Citibank refused to honor one of his transfer checks, it constituted a separate breach of 5 the covenant of good faith and fair dealing. The Plaintiff made sixteen such requests to Citibank. 6 As such, each cause of action arose at the time the check was refused, and ran four years after the 7 initial cause of action. Consequently, all checks written between October 1998, and September 8 4, 2000, are barred from litigation by the statute of limitations. 9 Thirteen of the sixteen requests are barred by the four year statute of limitations. Three 10 of the Plaintiff’s requests, however, fall within the four-year time frame: a transfer request on 11 July 20, 2001, and requests on December 6 and 7, 2001. Although not barred by the statute of 12 limitations, the three requests falling within the four year time frame are barred by the 13 contractual time limitations provision that the Plaintiff agreed to in the Funds Transfer 14 Agreement. That agreement contains language which states “if I fail to notify Citibank of any 15 claim concerning the funds transfer within one year from the date that I have received 16 notification that the funds transfer was executed, any claim by me will be barred under 17 applicable law.” (See Section 16 of Exhibit 23). The Plaintiff signed this agreement on July 20, 18 2001. The agreement also contained a provision stating “I have read and agreed to the terms and 19 conditions stated in the Funds Transfer Agreement.” Additionally, the Plaintiff stated that he 20 read the Agreement carefully. See Docket No. 62, Exhibit 50, p. 71 line 9-15. 21 Because the Plaintiff did not bring to the attention of Citibank any of his concerns 22 regarding the transfer of funds within the one year period, he is now time barred from bringing 23 legal action against it. Guam law holds that limitation periods which condition the right to sue 24 are enforceable. The Supreme Court of Guam upheld a one year limitation on a construction 25 contract in Dillingham v. Brown, 2003 Guam 2, 2003 WL 60744. The court held that a 26 contractual limitations period “which shortens a statute of limitations can be validly contracted 27 as long as it is not in itself unreasonable or is not so unreasonable as to show imposition or 28 undue advantage.” Id. at ¶ 25. 1 In this instance, there was no showing that the contractual clause in question 2 || unreasonably imposed upon the Plaintiff or that it was unduly advantageous to Citibank. The 3 || Plaintiff was free to bank at any number of institutions, and was aware of the contractual 4 || limitation when he signed the agreement. Accordingly, the Plaintiff’s three remaining claims are 5 || barred under the contractual limitation provision. 6 CONCLUSION 7 Based upon the foregoing the court finds that all of the Plaintiffs claims are time barred 8 || by the applicable statute of limitations, or by the contractual time limitation contained in the 9 || Funds Transfer Agreement. Accordingly, the court GRANTS the Defendant’s Motion for 10 |} Summary Judgment. 11 SO ORDERED. 12 13 14 15 /s/ Frances M. Tydingco-Gatewood 16 ar Chief Judge Dated: Apr 07, 2008 17 ca 18 19 20 21 22 23 24 25 26 27 28 13