CANDELARIO DEL MORAL v. UBS FINANCIAL SERVICES

• Decision Date: 13 January 2010
• Docket Number: Civil No. 08-1833 (SEC).
• Citation: 691 F. Supp.2d 291
• Parties: Madeline CANDELARIO DEL MORAL, Plaintiff v. UBS FINANCIAL SERVICES INCORPORATED OF PUERTO RICO, Defendants.
• Court: U.S. District Court — District of Puerto Rico

691 F. Supp.2d 291

Madeline CANDELARIO DEL MORAL, Plaintiff v. UBS FINANCIAL SERVICES INCORPORATED OF PUERTO RICO, Defendants.

Civil No. 08-1833 (SEC).

United States District Court, D. Puerto Rico.

January 13, 2010.

David W. Roman, Brown & Ubarri, San Juan, PR, for Plaintiff.

Enrique G. Figueroa-Llinas, Guillermo J. Bobonis, Bobonis, Bobonis & Rodriguez Poventud, San Juan, PR, for Defendants.

OPINION and ORDER

SALVADOR E. CASELLAS, Senior District Judge.

Pending before this Court is Defendant UBS Financial Services Incorporated of Puerto Rico's ("UBS") Motion for Summary Judgment (Dockets ##23 & 24), Plaintiff Madeline Candelario del Moral's ("Candelario" or "Plaintiff") opposition thereto (Docket # 31), UBS's reply (Docket #43), and Plaintiff's sur-reply (Docket # 59). Plaintiff then filed a Cross-Motion for Summary Judgment (Dockets ## 38 & 39), to which UBS opposed (Dockets ##54 & 56), Plaintiff replied (Dockets ##67-69), and UBS sur-replied (Docket # 72). Upon reviewing the filings, and the applicable law, Plaintiff's motion is GRANTED in part and DENIED in part, and UBS's motion is GRANTED in part and DENIED in part.

Factual Background

On August 8, 2008, Plaintiff filed the present diversity under Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141. In the complaint, Plaintiff alleges that UBS failed to conserve, and negligently released her ex-husband, David Efrón's ("Efrón") assets, despite the Commonwealth court's orders of seizure and attachment issued in October 2006 ("Order and Writ of Execution"). Candelario argues that, as a result of UBS's actions, Efrón depleted his accounts with UBS, and consequently, she did not receive $3,808,739.48, plus interest that she was entitled to pursuant to the Commonwealth courts' rulings.

On April 3, 2009, UBS moved for summary judgment, arguing that Plaintiff's claims were time-barred. UBS further contends that Plaintiff has no actionable claim under Article 1802. Dockets ## 23 & 24. In support thereof, UBS posits that the October 2006 Order and Writ of Execution were verbally vacated by Puerto Rico Superior Court Judge, Charles Jiménez-Nettleship ("Judge Jiménez-Nettleship"), during a hearing held on November 13, 2006. UBS further argues that the attachment of Efrón's accounts was removed after a careful review of the Superior Court's verbal order issued in open court, the Minutes for said proceedings, Plaintiff's appeals to the Puerto Rico Court of Appeals and Supreme Court, and said courts' rulings on the matter.

Plaintiff opposed, and on May 6, 2009, she filed a cross motion for summary judgment. Docket ##37-39. According to Plaintiff, the Order and Writ of Execution, issued in accordance with the Puerto Rico Court of Appeals' February 16, 2006 Judgment, constitute the law of the case. Plaintiff further avers that Judge Jiménez-Nettleship's verbal order did not affect the Order and Writ of Execution's validity. According to Plaintiff, the Minutes of the November 13, 2006 hearing were never signed by the Judge, nor certified and notified to the parties by the Courtroom Clerk, as required by the Rule 32(b)(1) for the Administration of the Court of First Instance of the Commonwealth of Puerto Rico (Rule 32), P.R. Laws Ann. tit. 4, R. 32. As a result thereof, Plaintiff argues that Judge Jiménez-Nettleship's verbal order was never valid or enforceable.

The parties filed numerous replies and sur-replies. On October 20, 2009, in light of the issues of state law raised in the present case, this Court requested Certification from the Supreme Court of Puerto Rico. Docket # 80. However, On November 13, 2009, the Supreme Court declined to exercise its jurisdiction in the present case. See Docket # 84. As such, this Court must now rule upon the pending motions for summary judgment.

Standard of Review

R. FED. CIV. P. 56

The Court may grant a motion for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1st Cir.2005). In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines the record in the "light most favorable to the nonmovant," and indulges all "reasonable inferences in that party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994).

Once the movant has averred that there is an absence of evidence to support the nonmoving party's case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be resolved in favor of either party' and, therefore, requires the finder of fact to make `a choice between the parties' differing versions of the truth at trial.'" DePoutot v. Raffaelly, 424 F.3d 112, 116 (1st Cir.2005)(citing Garside, 895 F.2d at 48 (1st Cir.1990)); see also SEC v. Ficken, 546 F.3d 45, 51 (1st Cir.2008).

In order to defeat summary judgment, the opposing party may not rest on conclusory allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 407 F.3d 11, 15 (1st Cir.2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). Once the party moving for summary judgment has established an absence of material facts in dispute, and that he or she is entitled to judgment as a matter of law, the "party opposing summary judgment must present definite, competent evidence to rebut the motion." Méndez-Laboy v. Abbott Lab., 424 F.3d 35, 37 (1st Cir.2005) (citing Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994)). "The non-movant must `produce specific facts, in suitable evidentiary form' sufficient to limn a trial-worthy issue. ... Failure to do so allows the summary judgment engine to operate at full throttle." Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (warning that "the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence."); Medina-Muñoz, 896 F.2d at 8 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989)) (holding that "the evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve.").

Because the instant motions are for summary judgment, the parties must comply with the requirements of Local Rule 56, and file a statement of facts, set forth in numbered paragraphs, and supported by record citations. See Local Rule 56(b). In turn, when confronted with a motion for summary judgment, the opposing party must:

submit with its opposition a separate, short, and concise statement of material facts. The opposition shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule.

Local Rule 56(c). If the opposing party fails to do so, "summary judgment should, if appropriate, be entered." FED.R.CIV.P. 56(e)(2). These rules "are meant to ease the district court's operose task and to prevent parties from unfairly shifting the burdens of litigation to the court." Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.2007). When the parties ignore the Local Rule, they do so at their peril. See Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.2000).

Uncontested Facts

Candelario is of legal age, a citizen of the United States, and a resident of Florida. Plaintiff's Statement of Uncontested Facts (Docket # 38) ("Plaintiff's SUMF") ¶ 1. She is an attorney at law, graduated from the Interamerican University of Law in 1976, and also earned a Masters Degree in Law from the University of Miami in 1977. UBS's Statement of Uncontested Facts (Docket # 23) ("UBS's SUMF") ¶ 3. UBS is a wholly owned subsidiary of UBS Financial Services, Inc., and a registered broker-dealer authorized to do business in Puerto Rico. UBS's SUMF ¶ 1. It is a corporation created under the laws of Puerto Rico, with its principal place of business in Puerto Rico, with capacity to sue and be sued. Plaintiff's SUMF ¶ 2; UBS's SUMF ¶ 1. Plaintiff was married to Efrón, and both of them formed part of a community property regime. Plaintiff's SUMF ¶ 3; UBS's SUMF ¶ 3. On May 3, 2001, the marriage ended in divorce by Judgment of the Court of First Instance of Puerto Rico, San Juan Section ("Superior Court"). Plaintiff's SUMF ¶ 4; UBS's SUMF ¶ 3. Since then, they have been engaged in litigation before the Superior Court regarding the liquidation of their marital community property. UBS's SUMF ¶ 3.

During the proceedings, Superior Court Judge Orama-Monroig entered judgment in favor of Candelario for the monthly payment of $50,000.00, as part of her participation in the assets of the conjugal partnership previously constituted by her and Efrón. Plaintiff's SUMF ¶ 5. The assets of Efrón and Candelario's conjugal partnership exceed $70,000,000, all under the absolute control of Efrón. Id. The $50,000 monthly payments were to be paid from June 4, 2001. Id. Both Efrón and Candelario appealed on different grounds to the Puerto Rico Court...