Opinion
CIVIL NO. 19-1777 (CCC)
12-23-2020
Dusica PEJCIC, Plaintiff, v. CHOICE HOTELS INTERNATIONAL, INC., et al., Defendants.
Carmen Yolanda Cartaya, James C. Sawran, Pro Hac Vice, McIntosh Sawran & Cartaya, P.A., Fort Lauderdale, FL, Francisco J. Colon-Pagan, Colon & Colon PSC, San Juan, PR, for Plaintiff. Jose A. Andreu-Collazo, Jose J. Lamas-Rivera, Andreu & Sagardia Law Office, San Juan, PR, for Defendants.
Carmen Yolanda Cartaya, James C. Sawran, Pro Hac Vice, McIntosh Sawran & Cartaya, P.A., Fort Lauderdale, FL, Francisco J. Colon-Pagan, Colon & Colon PSC, San Juan, PR, for Plaintiff.
Jose A. Andreu-Collazo, Jose J. Lamas-Rivera, Andreu & Sagardia Law Office, San Juan, PR, for Defendants.
OPINION AND ORDER
GUSTAVO A. GELPI, Chief United States District Judge
Plaintiff Dusica Pejcic, a female Serbian citizen, was sexually assaulted in her hotel room while in Puerto Rico. (Docket Nos. 133 ¶ 10; 137-1 ¶ 12). As a result of this heinous incident, Pejcic brought this diversity action against the hotel's management. (Docket No. 31). Currently, before the Court is Codefendants Choice Hotels International ("Choice") and RC Hospitality Corporation's ("RC Hospitality") motion for partial summary judgment. (Docket No. 131). After careful review of the parties’ submissions, the Court GRANTS Choice and RC Hospitality's motion for summary judgment.
I. Local Rule 56(c)
The Court first addresses the fact that Plaintiff failed to oppose Codefendants’ motion for summary judgment properly. (Docket No. 136). Specifically, Pejcic did not comply with Local Rule 56(c). Said Rule requires a party opposing a motion for summary judgment to include "a separate, short, and concise statement of material facts." D.P.R. Civ. R. 56(c). In that separate statement of facts, the party "shall 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 material facts." Id. "The purpose of this rule is to relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute." CMI Capital Market Investment, LLC v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008).
The Local Rules for the United States District Court for the District of Puerto Rico were recently amended and became effective December 21, 2020. Local Rule 56(c)’s text did not change.
Pejcic's Opposition failed to comply with the two requirements mentioned above. She did not comply with Local Rule 56(c) because she denied or qualified Choice and RC Hospitality's Proposed Statement of Undisputed Facts by engaging in a narrative discussion of Codefendants’ proposed facts. Thus, she disregarded Local Rule 56(c)’s mandate to deny or qualify the proposed facts in a separate reference to each numbered paragraph in the moving party's statement of material facts. See D.P.R. Civ. R. 56(c). By proceeding accordingly, Plaintiff defeated the purpose of Local Rule 56(c) by improperly shifting the burden of organizing the evidence presented in the case to this Court. See Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 31 (1st Cir. 2010).
Plaintiff, for example, does not duly oppose Defendants Choice's main factual proposition, to wit, that: "Choice did not own or operate Hotel Le Consulat on the day of the incident." (Docket 131-1 ¶ 20). As the Opposition stands, the Court has to bulldoze its way to decipher Plaintiff's pleading and see if this material fact is genuinely in dispute. To comply, Pejcic should have included a separate, short, and concise statement as mandated by D.P.R. Civ. R. 56(c).
The First Circuit in CMI Capital Market Investment, LLC v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008) faced a similar noncompliance with Local Rule 56(c). Like Pejcic, the defendants therein failed to counter plaintiff's motion for summary judgment by not submitting a separate statement of material facts in its opposition. Id. In its discretion, the district court below ruled that defendants failed to comply with Local Rule 56(c) and deemed admitted plaintiff's statement of facts. Id. The First Circuit upheld the district court's decision. Id. at 62-63 ; see also D.P.R. Civ. R. 56(e). ("Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted"). Accordingly, this Court will deem Codefendants’ proposed facts as uncontroverted. See CMI Capital Market Investment, LLC, 520 F.3d at 62.
II. Relevant Factual Background
The following facts are undisputed since Pejcic failed to duly oppose Codefendants’ motion for partial summary judgment.
Plaintiff Pejcic sued Codefendants Choice, RC Hospitality, and RC Hotel Management, Inc. ("RC Hotel") for the damages she endured as a consequence of a sexual assault by a third-party at Hotel Le Consulat. (Docket No. 31 at 15). Plaintiff alleges that Codefendants’ Choice and RC Hospitality were the owners of Hotel Le Consulat, and that they "had a duty to have reasonable security measures in place at the hotel's premises to ensure the safety of its guests." (Docket No. 131-1 ¶¶ 4; 15). Pejcic's complaint also asserts that Choice is vicariously liable for RC Hospitality and RC Hotel's negligence in protecting their guests. Id. ¶ 17.
At the time of the incident, RC Hotel was the legal entity that owned, operated, and ran the day-to-day operations of Hotel Le Consulat. Id. ¶ 13. Choice was a RC Hotel's franchisor. Id. ¶ 22. Their agreement, called Membership Agreement, stated that Choice was to provide RC Hotel with marketing, advertising, and access to its online reservation platform. Id. Choice also agreed to run a quality assurance program to evaluate RC Hotel's compliance with Choice's franchise Rules and Regulations. Id. ¶ 24. The quality assurance program consisted of evaluating Hotel Le Consulat's guest satisfaction, cleanliness, and conditions guest's rooms and public spaces. Id. ¶ 33.
In turn, under the Membership Agreement, RC Hotel agreed to follow Choice's franchise Rule and Regulations. Id. ¶ 25. RC Hotel also agreed to "[c]onstruct, operate, furnish, maintain, and advertise the [h]otel according to [the Membership Agreement] and the Rules and Regulations." Id. ¶ 26. It further agreed to follow "all local, state and federal laws, rules, regulations or agency orders applicable to [RC Hotel] and the construction, maintenance and promotion of the Hotel." Id. ¶ 27.
The Rules and Regulations that RC Hotel agreed to follow do not contain standards of security, guest safety, or measures to avoid criminal acts. Id. ¶ 30. Such rules leave to the franchisee, e.g., RC Hotel, "to comply with local law and regulation regarding security and safety." Id. ¶ 29. Therefore, Choice's inspections of Hotel Le Consulat were not intended to evaluate RC Hotel's compliance with personal safety. Id. ¶ 31.
On the other hand, RC Hotel hired RC Hospitality to provide outsourcing services to RC Hotel. Id. ¶ 7. Both parties’ agreement, called the "Shared Services Agreement," established that RC Hospitality would provide RC Hotel professional services, such as accounting, human resources, financial services, reservation system services, tariff and tax services, information system services. Id. ¶ 8. RC Hotel did not require RC Hospitality to provide any other service besides those agreed upon in the Shared Services Agreement. Id. ¶ 10. At the time of the incident, RC Hospitality only provided RC Hotel with human resources and accounting services. Id. ¶ 11. The Shared Service Agreement did not require RC Hospitality to provide security services or "ensure that Hotel Le Consulat had reasonable security services in place at its premises." Id. at ¶ 9.
III. Standard of Review
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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see FED. R. CIV. P. 56(a). "An issue is genuine if ‘it may reasonably be resolved in favor of either party’ at trial ... and material if it ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’ " Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (internal citations omitted).
The moving party bears the initial burden of demonstrating the lack of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. "The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmovant may establish a fact that is genuinely in dispute by citing particular evidence in the record or showing that either the materials cited by the movant "do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1)(B). If the Court finds that a genuine issue of material fact remains, the resolution of which could affect the outcome of the case, then the Court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
When considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party and give that party the benefit of any and all reasonable inferences. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Also, at the summary judgment stage, the Court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the nonmoving party's case rests merely upon "conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003) ).
IV. Discussion
Choice and RC Hospitality move for summary judgment asking the Court to dismiss Pejcic's negligence-based tort claims against them, (Docket No. 131), under P.R. LAWS. ANN. tit. 31 § 5141. Codefendants’ motion contends that they do not have a duty of care towards Plaintiff because they were not the owners of Hotel Le Consulat at the time of the sexual assault. Id. at 2. Additionally, Choice posits that it is not vicariously liable under Article 1803 of the Puerto Rico Civil Code, P.R. LAWS. ANN. tit. 31 § 5142 as Article 1803 "does not establish that a franchisor is vicariously liable for the liability imposed on their franchisees." Id. at 11.
a. Article 1802 of the Puerto Rico Civil Code
For Codefendants Choice and RC Hospitality to be held liable to Plaintiff under Article 1802, the Court must find that at the time of the incident, Codefendants had a duty "to conform to a certain standard of conduct[.]" Baum-Holland v. Hilton El Con Management, LLC, 964 F.3d 77, 88 (1st Cir. 2020) (discussing the requirements to recover on a negligence-based tort claim pursuant to Article 1802). More specifically, the Court must determine whether Codefendants had a duty as hotel-keepers of Hotel Le Consulat. Under Puerto Rico law, hotel-keepers or operators have a heightened duty of care towards guests. Baum-Holland, 964 F.3d at 88 (citing Blomquist v. Horned Dorset Primavera, Inc., 925 F.3d 541, 547 (1st Cir. 2019) ). Such duty requires hotel operators "to maintain its premises in such conditions that its guests will not suffer foreseeable injuries[.]" Blomquist, 925 F.3d at 547. "[I]n other words, the hotel must ensure that the areas to which its guests have access are safe." Id. (citing Cotto v. C.M. Ins. Co., 116, P.R. Dec. 644, 16 P.R. Offic. Trans. 786, 793 (P.R. 1985) ).
In this diversity case, Commonwealth substantive law applies. See Montalvo v. Gonzalez-Amparo, 587 F.3d 43, 46 (1st Cir. 2009).
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Here, however, the record shows that Choice and RC Hospitality were not Hotel Le Consulat's hotel-keepers on the day of the incident. The uncontested facts demonstrate that Choice was a "franchisor" that provided Hotel Le Consulat with marketing, advertising, and access to its online reservation platform. (Docket No. 131-1 ¶ 22). In turn, RC Hotel hired RC Hospitality to outsource some services, which were accounting and human resources services at the time of the assault. Id. Moreover, there is no issue as to the fact that Choice and RC Hospitality did not run the day-to-day operations of Hotel Le Consulat because the nature of both parties’ agreements with RC Hotel is uncontroversially clear. Accordingly, the Court holds that Choice and RC Hospitality were not the hotel-keepers or the operators of Hotel Le Consulat at the time of the unfortunate event.
Pejcic's Opposition to Codefendants’ summary judgment posits that Choice and RC Hospitality had contractual duties, which required them to establish security measures in Hotel Le Conusulat. See Docket No. 136 at 2-4. However, she has not provided any legal nor factual support for this bald assertion. As noted previously, it is uncontested that neither Choice's Membership Agreement nor its Rules and Regulations required Choice to provide security services or measures to Hotel Le Consulat. (Docket No. 131-1 ¶¶ 22, 30). Rather, Choice's Rules and Regulations leave to its franchisees, such as RC Hotel, to comply with local law and security and safety regulations. Id. ¶ 29. More so, RC Hospitality's Shared Services Agreement does not require RC Hospitality to provide security services or otherwise ensure that Hotel Le Consulat employed security measures. Id. ¶¶ 8-10.
In sum, Plaintiff Pejcic has failed to show how Choice and RC Hospitality had a heightened duty of care as Hotel Le Consulat's innkeepers or otherwise had a contractual obligation to foresee the unfortunate incident and keep the hotel's premises safe. Accordingly, the Court must dismiss Plaintiff's negligence tort claims against Choice and RC Hospitality. Horowitz v. Luxury Hotels International of Puerto Rico, Inc., 322 F. Supp. 3d 279, 283-284 (D.P.R. 2018) ("Failure to establish a duty of care is fatal to a cause of action pursuant to Article 1802").
b. Article 1803 of the Puerto Rico Civil Code
Finally, Choice also moves to dismiss the vicarious liability claim against it, arguing that under Article 1803 of the Puerto Rico Civil Code, it cannot be vicariously liable for the actions of its franchisee, RC Hotel. The Court agrees with Choice. Article 1803 provides a list of specific instances where vicarious liability applies. See P.R. LAWS ANN. tit. 31, § 5142. This list is "taxative" and does not allow a vicarious liability claim for a franchisee's tortious actions. See Burgos-Oquendo v. Caribbean Gulf Refining Corp., 741 F. Supp. 330, 333 (D.P.R. 1990) (holding that a franchisor is not vicariously liable for franchisee's acts). Accordingly, as Choice's relationship with RC Hotel was that of a franchisor, (Docket No. 131-1 ¶ 22), Plaintiff's vicarious liability claim against Choice fails. See Burgos-Oquendo, 741 F. Supp. at 333.
V. Conclusion
For the reasons stated above, Choice and RC Hospitality's motion for summary judgment at Docket No. 131 is GRANTED in its entirety and all claims against them are dismissed. Partial judgment shall be entered accordingly.