Segarra Jimenez v. Banco Popular, Inc.

• Decision Date: 22 March 2006
• Docket Number: Civil No. 03-1475(SEC).
• Citation: 421 F.Supp.2d 452
• Parties: Alirio SEGARRA JIMENEZ, Plaintiff v. BANCO POPULAR, INC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 452

421 F.Supp.2d 452

Alirio SEGARRA JIMENEZ, Plaintiff v. BANCO POPULAR, INC., et al., Defendants.

Civil No. 03-1475(SEC).

United States District Court, D. Puerto Rico.

March 22, 2006.

Julio E. Gil-De-La-Madrid, Rudolph C. Campbell, Gil De Lamadrid, PSC, Bayamon, PR, for Plaintiff.

Frances R. Colon-Rivera, Saldana & Carvajal, Luis N. Saldana-Roman, Saldana & Carvajal, Ivan M. Fernandez, Ivan M. Fernandez Law Office, San Juan, PR, Israel Roldan-Gonzalez, Aguadilla, PR, for Defendants.

OPINION AND ORDER

CASELLAS, Senior District Judge.

Pending before the Court is Co-defendants Banco Popular's and Javier Otero-Colón's motion for summary judgment (Docket # 52), duly accompanied by a statement of uncontested material facts (Docket # 51). Co-defendant Doris L. Román-Milán moved to join Co-defendants Banco Popular's and Javier Otero-Colón's motion for summary judgment (Docket # 53). Plaintiff filed a belated opposition (Docket # 58).¹ Co-defendants Banco Popular and Javier-Otero then replied to that opposition (Dockets ## 59-62). After carefully examining the parties' arguments, the case record and the applicable law, Co-defendants Banco Popular's, Javier Otero-Colón's and Doris Román-Milán's motions will be GRANTED.

Standard of Review

Fed.R.Civ.P. 56(b) provides that: "A party against whom a claim . . . is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part [of the claims asserted against him/her]." The Court may grant the movant's 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).

"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.'" Depoutout v. Raffaelly, 424 F.3d 112, 116 (1st Cir.2005) (quoting from Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990)). By like token, "`material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." Rojas-Ithier v. Sociedad Española de Auxilio Mutuo, 394 F.3d 40, 42-43 (1st Cir.2005) (citations omitted). Therefore, there is a trial-worthy issue when the "evidence is such that there is a factual controversy pertaining to an issue that may affect the outcome of the litigation under the governing law, and the evidence is sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side." Id. (citations omitted).

In addition, the Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir.1994). Summary judgment "admits of no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails." Id. (citing Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987)). Accordingly, if the facts permit more than one reasonable inference, the court on summary judgment may not adopt the inference least favorable to the non-moving party. Id at 684.

Once the movant has established 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). That requires providing the Court with more than 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 for the non-movant to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). The `party opposing summary judgement must present definite, competent evidence to rebut the motion.' Méndez-Laboy v. Abbott Lab., 424 F.3d 35, 37 (1st Cir.2005) (quoting from Maldonado-Denis v. Castillo Rodríguez, 23 F.3d 576, 581 (1st Cir.1994)). "The nonmovant must `produce specific facts, in suitable evidentiary form' sufficient to limn a trialworthy 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, (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989)) (holding that "[t]he 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.").

Local Rule 56(b), moreover, requires the moving party to file annexed to the motion "a separate, short, and concise statement of material facts, set forth in numbered paragraphs, as to which the moving party contends there is no genuine issue of material fact to be tried." The non-movant has a corresponding obligation to file with its opposition a statement admitting, denying, or qualifying the facts "by reference to each numbered paragraph of the moving party's statement of material facts", supporting each denial or qualification of the movant's material facts with a citation to the record. Local Rule 56(c). If the nonmovant fails to properly controvert the movant's statement, all the material facts set forth therein "shall be deemed to be admitted." Local Rule 56(c); Cosme-Rosado v. Serrano-Rodriguez, 360 F.3d 42 (1st Cir.2004). This is the so-called "antiferret rule." See, e.g., Orbi, S.A. v. Calvesbert & Brown, 20 F.Supp.2d 289, 291 (D.P.R.1998). While failure to comply with this rule does not automatically warrant the granting of summary judgment, "it launches the nonmovant's case down the road toward an early dismissal." Tavárez v. Champion Prods., Inc., 903 F.Supp. 268, 270 (D.P.R.1995).

In a recent opinion, the First Circuit reaffirmed the validity of the well-known anti-ferret rule previously codified in Local Rule 311.12. Cosme-Rosado, 360 F.3d 42, 45 (noting that "parties ignore [it] at their peril") (quoting Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.2000) (citations omitted)). As such, the Court is not required to "ferret through the record" lurking for facts that may favor the parties when those facts were not proffered as required by Local Rule 56(c). Morales v. Orssleff's Eftf, 246 F.3d 32, 33 (1st Cir.2001).

The moving Co-defendants have complied with Local Rule 56(b) and filed a statement of material facts (Docket # 51-1 adopted by Co-defendant Román-Milán at Docket # 53). Plaintiff, however, did not file the opposing statement of facts. Although their opposition to the motion for summary judgment mentions some "facts", there is no citation to supporting evidence and any facts alleged in the opposition are not in the form required by Local Rule 56(b). Accordingly, the Court will deem admitted any and all facts in Co-defendants' statement that are supported by the record (see Local Rule 56(e)).

Procedural and Factual Background

On January 13, 2002, Co-defendant Román-Milán made a purchase at the Payless Shoe Store in the Mayagüez Mall store (Docket # 51, SUF # 5). In order to pay for her purchase, she gave the cashier her Banco Popular ATM card and keyed in her pin number (Docket # 54, Ex.2). The only two persons in the area were Codefendant and the cashier (Id). The cashier made the transaction, and then handed Co-defendant Román-Milán her purchase receipt and an ATM card. After leaving the Payless store, Co-defendant Román-Milán attempted to make two other purchases with her ATM card in two different stores (Docket # 51, SUF # 6). Both attempts failed because her ATM card was not accepted (Id).

Two days later, on January 15, 2002, Co-defendant Román-Milán went to a Banco Popular branch, thinking her ATM card was damaged (Docket # 51, SUF # 7). There she was informed that the ATM card was not hers (Id). Both cards, Codefendant Román-Milán's and the other card, were cancelled (Docket # 51, SUF # 9). Co-defendant Román-Milán was then given an account statement (Docket # 51, SUF # 10). Upon reviewing it, Codefendant Román-Milán realized that there were two unauthorized withdrawals (Id). Both withdrawals were for $ 500.00 and had taken place on January 13 and January 14, 2002, respectively (Docket # 51, SUF# 10-11). Co-defendant Román-Milán filed a claim for fraud with the bank and a complaint with the police department (Docket # 51, SUF # 12). On January 18, Co-defendant Roman—Milan again visited the Payless Store and found that the cashier was the same as the one from January 13 (Docket # 51, SUF # 13). She made another purchase and upon comparison of the purchase receipts of January 13 and January 18 found that the same employee's name appeared in both: Aly. (Docket # 51, SUF# 13-14). That was the name that was assigned to Plaintiff for when he worked the cash register (see, Docket # 51, SUF # 16).

Meanwhile, Co-defendant Román-Milán's fraud claim was referred for investigation to Co-defendant Otero-Colón, a fraud investigator in the security division of Banco Popular (Docket # 51, SUF # 17). Co-defendant Otero-Colón examined the ATM reports for Co-defendant Román-Milán's account, interviewed Co-defendant Román-Milán,...