Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

V A Case 3:03-cv-00943-AWT Document 101 -2 Filed 02/05/2007 Page 1P@lgS 2 OM
Westlaw
Not Reported in F.Supp.2d Page 1
Not Reported in F.Supp.2d, 2004 WL 2472280 (D.Conn.) ·
(Cite as: Not Reported in F.Supp.2d)
resort locales). Defendants are entitled to summary
Briefs and Other Related Documents judgment because Plaintiffs have failed to produce
Welch-Rubin v. Sandals Corp.D.Conn.,2004.0nly any evidence that Defendants owned, controlled or
the Westlaw citation is currently available. operated the premises where Ms. Welch-Rubin was
United States District Court,D. Connecticut. injured. Accordingly, there are no genuine issues of
Lori WELCH-RUBIN and David Welch—Rubin, material fact and Defendants are entitled to
Plaintiffs, judgment as a matter of law. -
v.
SANDALS CORPORATION, et al. Defendants. Before addressing the merits of Plaintiffs'
No. 3:03CV48l (MRK). arguments, the Court notes at the outset that there
are numerous defects in Plaintiffs' submissions in
Oct. 20, 2004. opposition to Defendants' summary judgment l
motion. First, Plaintiffs Rule 56(a)2 Statement [doc.
# 29] does not comply with the Court's Local Rules
Michael Stanton Hillis, Dombroski, Knapsack & of Civil Procedure. Local Rule 56(a)3 states that
Hillis, New Haven, CT, for Plaintiffs. every statement of material fact and every denial
of an opponent’s statement of fact in a Local Rule
RULING AND ORDER 56(a)2 Statement "must be followed by a specific
KRAVITZ, J. ` citation to (1) the affidavit of a witness competent
*1 Plaintiffs sue Defendants for negligence in to testify as to the facts at trial and/or (2) evidence
connection with an injury sustained while Plaintiffs that would be admissible at trial." D. Conn. L. Civ.
were visiting the Beaches Turks & Caicos Resort & R. 56(a)3. Nevertheless, while Plaintiffs denied
Spa ("Beaches Resort"). Before the Court is certain facts listed by Defendants in their Rule
Defendants' Motion for Summary Judgment [doc. # 56(a)l Statement [doc. # 25], Plaintiffs failed to
23]. For the reasons stated below, the Court hereby provide even a single citation to an affidavit or
GRANTS Defendants' motion. admissible evidence to support Plaintiffs' denials.
. As the Local Rules provide, that failure alone would
The central issue in this case is whether be sufficient reason to deem Defendants' statements
Defendants—a resort company and a tour of fact admitted, though the Court has not done so
operator-owned, operated, or controlled the in this case. See D. Conn. L. Civ. R. 56(a)l ("All
Beaches Resort where Plaintiff Lori Welch-Rubin material facts set forth in [a Rule 56(a)l Statement
injured her shoulder while attempting to board a ] will be deemed admitted unless controverted by
boat. Plaintiffs' do not dispute that under the statement required to be filed and served by the
Connecticut law, Defendants cannot be liable to opposing party in accordance with Local Rule 56(
Plaintiffs if Defendants did not control, own or a)2.").
operate the premises where Ms. Welch-Rubin was .
injured. See, eg., Mozeleski v. Thomas, 76 Second, in opposing Defendants' summary
Conn.App. 287, 294-95, 818 A.2d 893 (2003) judgment motion, Plaintiffs urge the Court to accept
(legal responsibility for maintaining premises in a the allegations of their Complaint and construe
reasonably safe condition depends on who has them in Plaintiffs' favor. Indeed, Plaintiffs cite their
possession and control of those premises). See also own Complaint as the sole support for certain
Davies v. General Tours, Inc. 63 Conn.App. 17, assertions of fact in their Rule 56(a)2 Statement.
22-23, 774 A.2d 1063 (2001) (tour operators have But as the Defendants rightly point out, allegations
no duty to warn travelers of unsafe conditions at in a complaint are not evidence. A party opposing
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Not Reported in F.Supp.2d Page 2 3
Not Reported in F.Supp,2d, 2004 WL 2472280 (D.Conn.)
(Cite as: Not Reported in F.Supp.2d)
summary judgment "cannot defeat the motion by management of the Beaches Resort, and therefore
relying on the allegations in his pleading, or on do not shed any light on the validity of Plaintiffs
conclusory statements, or on mere assertions that claims against Defendants. Indeed, the fact that this
affidavits supporting the motion are not credible." is all Plaintiffs' investigator could come up with
Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d speaks volumes about Plaintiffs‘ claim against these
Cir.l996) (internal citations omitted). At the Defendants. Accordingly, Mr. Frederick’s report is
summary judgment stage of the proceeding, insufficient to create a genuine issue of material fact
Plaintiffs are required to present admissible about Defendants' ownership, operation or control
evidence in support of their allegations; allegations ofthe Beaches Resort.
alone, without evidence to back them up, are not P
sufficient. See id (°‘In order to defeat a summary Contrary to Plaintiff`s' inadequate submissions,
judgment motion the opposing party is required Defendants have provided the Court with two
to come forward with materials setting forth affidavits signed by corporate officers of each
specific facts showing that there is a genuine issue defendant corporation. The first affidavit is signed
of material fact to be tried."). by Merrick Frey, the managing director of Sandals 5
- . Resorts Int’l Ltd. [doc. # 26]. The second affidavit
*2 The evidence that Plaintiffs do proffer in their is signed by Kevin Froemming, the president of
opposition brief [doc. # 28] does not create any Unique Vacations Inc. [doc. # 27]. Messrs. Frey
genuine issue of fact on the central issue in this and Froemming both unequivocally state that their
case-namely, whether Defendants own, control, or respective companies do not own, operate or
manage the Beaches Resort. Plaintiffs' first point to control the Beaches Resort where Ms. Welch—Rubin
a series e—mails between Ms. Welch—Rubin and an was injured. See Frey Aff. il 6; Froemming Aff. 1]
· unidentified individual at the e-mail address " 2,
[email protected]." These emails merely confirm
receipt of Ms. Welch Rubin's complaint about the Plaintiffs attempt to discredit Defendants' evidence
injuries she sustained. See Ex. A [doc. # 28]. by making much of the fact that one affidavit is
Nothing in this email correspondence even remotely undated. See Fray Aff. [doc. # 26]. The Court has
acknowledges that Defendants own, control or no reason to believe that this omission was
operate the Beaches Resort. _ intentional and declines to be "unnecessarily
hypertechnical and overly harsh on a party who
In their brief, Plaintiffs also cite to an affidavit from unintentionally fails to make certain that all
a self—described "investigative research paralegal" technical, non—substantive requirements of
named Carl Frederick and documents constituting execution are satisfied? Pfeil v. Rogers, 757 F.3d
the fruits of Mr. Frederick's research. See Ex. B 850, 858 (7th Cir.1985). In any event, when this
[doc, # 28]. Mr. Frederick's research uncovered the omission was pointed out to Defendants, they
following: (l) an article from a travel magazine that promptly re—submitted affidavits that fully conform
lists the Beaches Resort as within the with all technical requirements [doc. # 31].
‘ Sandals/Beaches consortium of hotels; (2) an 8th Plaintiffs also baldly assert without any citation to
Circuit decision that names Sandals Resorts Int'l authority, that the affidavits, which are executed by
Ltd. and Unique Vacations Inc. (but not the the president and managing director of Defendants
Beaches Resort) as defendants; (3) a Dun & companies, lack proper foundation. The Court
Bradstreet report that indicates that Unique disagrees. It is a well accepted principle of evidence
Vacations "has an alias of Sandals Resort"; and (4) law that corporate officers are presumed to have ,
a website that lists Unique Vacations as the “ . personal knowledge of the affairs of the
worldwide contact for Sandals and Beaches." See corporation. See, eg., 6 James Wm. Moore et al.,
Frederick Aff Ex. B [doc. # 28]. As Defendants Moore's Federal Practice § 56.14[1][c].
rightly note, these documents (most of which would
be considered inadmissible hearsay) do not make a *3 Plaintiff`s' claims of negligence against
single mention of the legal ownership, control, or Defendants hinge on their allegations that
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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Not Reported in F.Supp.2d Page 3
Not Reported in F.Supp.2d, 2004 WL 2472280 (D.Conn.)
(Cite as: Not Reported in F.Supp.2d)
Defendants owned, managed, or controlled the
resort where Ms. Welch~Rubin was injured. Despite
the fact that Plaintiffs have had ample time to
uncover evidence, through discovery or otherwise,
that would support their claims, Plaintiffs have °
failed to do s0.FNl Accordingly, Defendants‘
Motion for Summary Judgement [doc. # 23] is
GRANTED, The Clerk is directed to close this case.
. FN1. Even though Defendants identified
the entities that own and manage the ·
Beaches Resort-The Bay Hotel and Resort
Ltd. and Royal Bay Resort and Villas Ltd.,
respectively-Plaintiffs made no efforts to
join in this action the entities that would
appear to be the proper defendants. I
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IT IS SO ORDERED.
D.Conn.,2004. .
Welch-Rubin v. Sandals Corp. » (
Not Reported in F.Supp.2d, 2004 WL 2472280
(D.Conn.)
Briefs and Other Related Documents (Back to top)
· 3:03CV0048l (Docket) (Mar. 18, 2003)
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