Segarra-Jimenez v. Banco Popular De Puerto Rico , 235 F. App'x 2 ( 2007 )

                   Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1816
ALIRIO SEGARRA-JIMENEZ,
Plaintiff, Appellant,
v.
BANCO POPULAR DE PUERTO RICO; JAVIER OTERO-COLON;
DORIS L. ROMAN-MILAN; PAYLESS SHOE STORES; JUAN VASQUEZ,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lipez, Circuit Judge,
Gibson* and Stahl, Senior Circuit Judges.
Rudolph C. Campbell Valdez and Julio Gil de Lamadrid on brief
for appellant.
Israel Roldan Gonzalez on brief for appellee Román-Milán.
Luis N. Saldaña, Frances R. Colón Rivera, Francisco M. Viejo
López, and Saldaña & Carvajal, P.S.C. on brief for appellees Banco
Popular de Puerto Rico and Otero-Colón.
May 25, 2007
*
Of the Eighth Circuit, sitting by designation.
STAHL, Senior Circuit Judge.   Appellant Alirio Segarra-
Jimenez brought claims of slander, malicious prosecution, false
imprisonment, and intentional infliction of emotional distress
against a variety of defendants.   Finding no factual basis in the
record upon which these allegations could be proven, the district
court granted summary judgment as to all claims in favor of the
defendants.   Finding no error in the district court's decision, we
affirm the grant of summary judgment, for substantially the reasons
outlined by the court below.
Because we write primarily for the parties, we do not
provide a detailed recitation of the facts.1   This case arose out
of the defendants' suspicion that Segarra-Jimenez used a stolen ATM
card to fraudulently withdraw money from defendant Doris Román-
Milán's bank account at Banco Popular de Puerto Rico (“Banco
Popular“).    When Banco Popular, also a defendant, was alerted to
the fraudulent withdrawals, it assigned fraud investigator Javier
Otero-Colón, also a defendant, to investigate the matter.   As part
of his investigation, Otero-Colón invited Segarra-Jimenez to a
meeting at the bank, which was held in an open cubicle and lasted
a little over an hour.      During the meeting, the investigator
1
Because Segarra-Jimenez failed to comply with Local Rule
56(c), which requires the non-moving party to file a detailed
statement admitting, denying, or qualifying the moving party's
statement of material facts, the district court deemed admitted the
defendants' version of the facts. We draw from that version here
as well.
-2-
accused Segarra-Jimenez of withdrawing the money, and allegedly
threatened to press criminal charges against him if he left the
meeting.     Segarra-Jimenez summoned his attorney to the bank, and
subsequently    left   the   bank   accompanied    by   his   attorney.    As
Segarra-Jimenez was leaving, the investigator allegedly yelled that
he was going to put Segarra-Jimenez in jail and that he should
ignore his attorney's advice.2           Based on the events at the bank
meeting, Segarra-Jimenez alleges that the investigator and the bank
committed slander and false imprisonment.
The owner of the stolen ATM card, Román-Milán, filed a
criminal complaint against Segarra-Jimenez, believing he was the
person who had taken her card and used it to withdraw money from
her account.    Both she and the investigator provided affidavits to
the police outlining the reasons they suspected Segarra-Jimenez of
the fraud.     Finding probable cause, the police arrested Segarra-
Jimenez and bail was set at $400.          Subsequently, at a preliminary
hearing, a judge determined there was not probable cause for
prosecution, and all charges against Segarra-Jimenez were dropped.
Because of the court action, Segarra-Jimenez claims that the
defendants'     acts   resulted     in     a   malicious    prosecution   and
intentional infliction of emotional distress.              He alleges that as
2
As to Otero-Colón's alleged threat during the meeting and
alleged statements as Segarra-Jimenez was leaving the bank, the
defendants denied that they had actually occurred, but deemed them
uncontested facts for purposes of their motion for summary
judgment.
-3-
a result of the defendants' actions he was forced to quit his job,
move to Florida, and seek medical care for psychological problems.
Alleging $3 million in damages, Segarra-Jimenez filed suit in the
United States District Court for the District of Puerto Rico,
claiming diversity jurisdiction.              Following the district court's
grant   of   summary    judgment   to    defendants,    this   timely   appeal
followed.
We review the district court's grant of summary judgment
de novo.     See Fontánez-Núñez v. Janssen Ortho LLC, 

447 F.3d 50

, 54
(1st Cir. 2006).       “[M]otions for summary judgment must be decided
on the record as it stands, not on litigants' visions of what the
facts might some day reveal. As we have warned, 'brash conjecture,
coupled with earnest hope that something concrete will eventually
materialize,     is    insufficient      to     block   summary   judgment.'“
Maldonado-Denis v. Castillo-Rodriguez, 

23 F.3d 576

, 581 (1st Cir.
1994) (quoting Dow v. United Bhd. of Carpenters, 

1 F.3d 56

, 58 (1st
Cir. 1993)).
We agree with the district court's cogent reasons for
granting summary judgment to the defendants as to all of Segarra-
Jimenez's claims.      Based on the uncontested material facts in the
record, Segarra-Jimenez plainly cannot meet the required elements
of any of the claims he has brought against defendants.             As to the
slander claim, as the district court concluded, the statements that
Otero-Colón allegedly yelled at Segarra-Jimenez as he was leaving
-4-
the bank are simply not defamatory; the statements did not speak to
Segarra-Jimenez's character, nor were they injurious.                   See Pardo
Hernandez v. Citibank, N.A., 

141 F. Supp. 2d 241

, 244 (D.P.R.
2001).     In addition, according to the record before us, Otero-
Colón's statement during the meeting that he suspected Segarra-
Jimenez of fraud was not published by communication to a third
party.     See Porto v. Bentley P.R., Inc., 

132 P.R. Dec. 331

, 346-47
(1992).
As to the malicious prosecution claim, Segarra-Jimenez
offers     no    record   evidence,      but   only   pure   speculation,    that
defendants initiated a criminal complaint with malice and without
probable cause.        See Raldiris v. Levitt, 

103 P.R. Dec. 778

, 782
(1975).     As to the false imprisonment claim, Segarra-Jimenez does
not point to any record evidence to suggest that he was restricted
in   his   movements      during   the   meeting.      The   meeting,    attended
voluntarily by Segarra-Jimenez, was held in an open cubicle, and
Segarra-Jimenez was free to leave at any time, which he eventually
did.     Otero-Colón's alleged threat did not rise to the level of
deprivation of freedom of movement required to support a false
imprisonment claim.         See Ayala v. San Juan Racing Corp., 

112 P.R. Dec. 804

, 813 (1982).          Finally, Segarra-Jimenez has waived his
claim of intentional infliction of emotional distress, as he fails
on appeal to support this claim in any detail.               See United States
v. Zannino, 

895 F.2d 1

, 17 (1st Cir. 1990) (“[I]ssues adverted to
-5-
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.“).
We also briefly note that Segarra-Jimenez's argument on
appeal   that    summary   judgment   was   granted    prematurely,    before
discovery was complete, is without merit.             The appellant did not
file a Rule 56(f) motion with the district court for an extension
of the summary judgment deadline in order to conduct further
discovery.      See Fed. R. Civ. P. 56(f) (“Should it appear from the
affidavits of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify the
party's opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may
make such other order as is just.“).            Therefore, he cannot now
argue that the district court granted summary judgment before he
had   the   opportunity    to   conduct     sufficient    discovery.     See
Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 

181 F.3d 15

, 23 (1st
Cir. 1999) (“Ordinarily, a party may not attempt to meet a summary
judgment challenge head-on but fall back on Rule 56(f) if its first
effort is unsuccessful.“) (internal quotation omitted); see also
Kiman v. New Hampshire Dep't of Corrections, 

451 F.3d 274

, 282 n.7
(1st Cir. 2006).
The grant of summary judgment by the district court is
therefore affirmed.
-6-