Sanchez v. McClintock

GUY SANCHEZ, et. al., Plaintiffs, v. KENNETH MCCLINTOCK, et. al., Defendants.

CIVIL NO. 11-1542 (CVR)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

January 27, 2016

OPINION AND ORDER

INTRODUCTION

This case is one in a long line of cases that have been filed over the years challenging the practices of the Puerto Rico Real Estate Board & Business Regulations.¹ Plaintiffs in the present case are Guy Sánchez and Katherine Figueroa ("Plaintiffs" or "Plaintiff Figueroa" or "Plaintiff Sánchez"). At the inception of this case, Defendants were many and only the following remain: the Puerto Rico Real Estate Board & Business Regulations (the "Real Estate Board"), a governmental entity of the Commonwealth of Puerto Rico created by Law No. 10 of April 26, 1994, P.R. Laws Ann. tit. 20, § 3024; Kenneth McClintock ("McClintock"), former Secretary of State and Eduardo Ballori ("Ballori"), former Deputy Secretary of State (both sued in their official capacity, for prospective injunctive relief only); Víctor Figueroa López ("Figueroa López"), former President of the Real Estate Board, and Pablo J. Claudio Pagán ("Claudio"), former member of the Real Estate Board (both sued in their individual capacities); and Gilberto Casillas Esquilín ("Casillas"), President of the Real Estate Board (sued in his official capacity, for prospective injunctive relief only).

This case stems from damages arising from alleged defamatory and libelous statements made by co-Defendant Figueroa López, acting as President of the Real Estate Board, which began when Plaintiff Figueroa was appointed to the Board in August of 2007 by then Governor of Puerto Rico, Hon. Luis Fortuño. She was confirmed by the Senate in November, 2007. Plaintiff Figueroa avers that co-Defendant Figueroa López opposed her appointment, and made slanderous and libelious attacks against her and her husband, Plaintiff Sánchez, in a number of ways. This behavior culminated in a public attack against Plaintiffs during an industry roundtable meeting attended by many industry professionals, where co-Defendant Figueroa López stated, among others, that Plaintiffs had lied under oath, stole government documents and were incompetent in carrying out of their duties. Plaintiffs allege this public attack occurred as a result of their exercise of their free speech rights by testifying before the Housing and Urban Development Commission, entity that was conducting investigative hearings in the House of Representatives of the Commonwealth of Puerto Rico concerning irregularities and illegal behavior within the Real Estate Board. Plaintiffs, who were brokers and members of the Real Estate Board, were not invited to this roundtable meeting, nor were they contacted by anyone from the San Juan Board of Realtors² or the Real Estate Board to give them the opportunity to defend themselves from the accusations they were the subject of duringthe conference, which they allege were slanderous, false and caused them humiliation and damaged their reputations.

Before the Court now is the Motion for Summary Judgment filed by Defendants Real Estate Board, McClintock, Ballori, Figueroa López, Casillas and Claudio inviting this Court to dismiss all claims brought against them. (Docket No. 188). With one exception, the Court declines their invitation. For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

STANDARD

Summary judgment is appropriate 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). Pursuant to the language of the rule, the moving party bears the two-fold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).

After the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact." Cortés-Irizarry v. Corporatión Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed "material" if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a "genuine" or "trial worthy" issue as to such a "material fact," "if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Id. At all times during the consideration of a motion for summary judgment, the Court must examine the entire record "in the light most flattering to the non-movant and indulge all reasonable inferences in the party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994).

The First Circuit Court of Appeals has "emphasized the importance of local rules similar to Local Rule 56 [of the District of Puerto Rico]." Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007); see also Colón v. Infotech Aerospace Servs., Inc., 869 F.Supp.2d 220, 225-226 (D.P.R. 2012). Rules such as Local Rule 56 are designed to function as a means of 'focusing a district court's attention on what is -and what is not-genuinely controverted.' Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006). Local Rule 56 imposes guidelines for both the movant and the party opposing summary judgment. A party moving for summary judgment must submit factual assertions in "a separate, short, and concise statement of material facts, set forth in numbered paragraphs." Loc. Rule 56(b). A party opposing a motion for summary judgment must "admit, deny, or qualify the facts supporting the motion for summary judgment by reference to each numbered paragraph of the moving party's statement of facts." Loc. Rule 56 (c). If they so wish, they may submit a separate statement of facts which they believe are in controversy. Facts which are properly supported "shall be deemed admitted unless properly controverted." Loc. Rule 56(e); P.R. Am. Ins. Co. v. Rivera-Vázquez, 603 F.3d 125, 130 (1st Cir. 2010) and Colón, 869 F.Supp.2d at 226. Due to the importance of this function to the summary judgment process, "litigants ignore [those rules] at their peril." Hernández, 486 F.3d at 7.

LEGAL ANALYSIS

A. First Amendment Claims.

The Court gives short shrift to Defendants' Motion for Summary Judgment, as it is evident that there are material issues of fact in controversy that preclude summary disposition of the claims presented by Plaintiffs.

Title 42, United States Code, § 1983 "provides a remedy for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924, 102 S.Ct. 2744 (1982) (internal quotation marks omitted). A claim pursuant to § 1983 must satisfy two essential elements: "the defendant must have acted under color of state law, and his or her conduct must have deprived the plaintiff of rights secured by the Constitution or by federal law." Grajales v. Puerto Rico Ports Auth, 682 F.3d 40, 46 (1st Cir. 2012); Gagliardi v. Sullivan, 513 F.3d 301 (1st Cir. 2008). There are two aspects to the second inquiry: "(1) there must have been a deprivation of federally protected rights, privileges or immunities, and (2) the conduct complained of must have been causally connected to the deprivation." Gutiérrez-Rodríguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989). Moreover, a plaintiff must link each particular defendant to the alleged violation of federal rights. See González-Piña v. Rodríguez, 407 F.3d 425 (1st Cir. 2005). A plaintiff may do so by indicating any "personal action or inaction [by the defendants] within the scope of [their] responsibilities that would make [them] personally answerable in damages under Section 1983." Pinto v. Nettleship, 737 F.2d 130, 133 (1st Cir. 1984).

Plaintiffs' § 1983 claims, as expressed below, are grounded upon alleged infringements of the First Amendment. A public employee's statement is protected activity when (1) in making it, the employee spoke as a citizen on a matter of public concern; (2) the court must balance the employee's First Amendment rights against the government's interest in efficient agency performance and (3) the plaintiff can show that the protected expression was a substantial or motivating factor in the adverse employment decision. Pérez v. Agostini, 37 F.Supp.2d 103 (D.P.R. 1999); see also Pickering v. Bd. of Educ. of Township High Sch., 391 U.S. 563, 88 S.Ct. 1731 (1968), and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684 (1983).

Defendants posit that the § 1983 claim cannot lie because "[t]he evidence does not substantiate anything more than Defendant Víctor Figueroa López' making use of his right to free speech to comment and refute any and all speech freely made by plaintiffs against the PRB and himself as president of the PRB." (Docket No. 195, p. 7). In other words, Defendants' argument is that they were defending themselves from Plaintiffs' accusations and they, too, were commenting on matters of public concern (mainly, malfeasance by Plaintiffs), and thus, their speech is protected. Defendants further aver that "the purpose of the roundtable was to gather real estate industry professionals and provide relevant information related to the concerns expressed by said persons" and that the "motivations were never to slander or retaliate against the Plaintiffs, but rather to preserve the Board's good will." (Docket No. 195, p. 9).

The first two prongs of the analysis are clearly met, insofar as Plaintiffs candidly admitted in testifying in their personal capacity at the hearings and Defendants have not contested this. That...