Opinion
Cause No. IP98-1370-C-T/G
July 19, 2000
Statement of Facts
In 1986, Mr. and Mrs. Pryor purchased a time share interval at a condominium complex in Kissimmee, Florida. (Jennie Pryor Dep. at 11-12; John Pryor Dep. at 13-14.) At this time, they also became members of RCI. (Jennie Pryor Dep. at 22.) RCI is a company that facilitates the exchange of time share intervals. A member may deposit a time share interval owned by that member into RCI's "SPACEBANK," and then remove a time share interval owned by another RCI member at another time and location, depending on availability. (Hamamouche Aff. ¶¶ 8-9.)
RCI Travel, Inc. is a Michigan Corporation which provides travel agency services to RCI members. (Reinhardt Aff. ¶¶ 8-9.) RCI Travel, Inc. has no interest in the Villas Jazmin property. ( Id. ¶ 10.) RCI Travel, Inc. played no part in the arrangements for the use of the Villas Jazmin condominium by the Pryors. ( Id. ¶ 11.) Its only participation was to arrange for a rental car in the Dominican Republic with a third-party rental car company, and it received no compensation for this reservation. ( Id. ¶ 12.) RCI Quality Services, Inc. was merged into RCI on December 31, 1989, and did not exist on September 10, 1996, the date of the attack. ( Id. ¶ 13.) It played no part in the arrangements for the use of the condominium, ( id. ¶ 15), and has had no interest in the Villas Jazmin property. ( Id. ¶ 14.) RCI Canada, Inc. is an Indiana corporation and is a time share exchange company that for a fee facilitates the exchange of time share intervals for members of RCI Canada, Inc., who are citizens of Canada. ( Id. ¶¶ 16-17.) RCI Canada, Inc., has no interest in the Villas Jazmin property, ( id. ¶ 18), and played no part in the arrangements for the use of the Villas Jazmin by the Pryors. ( Id. ¶ 19.) Finally, RCI of the Dominican Republic does not exist as an RCI related company. ( Id. ¶ 20.)
The Pryors maintained their RCI membership by paying their fees and, were provided with, among other materials, the periodical magazine Endless Vacation, and the RCI Directory of Resorts. (Hamamouche Aff. ¶ 12; Jennie Pryor Dep. at 160.) The Pryors used their RCI membership at different times to secure accommodations at various locations, all without incident. (John Pryor Dep. at 32-38.)
The applicable rules and regulations of RCI membership are included routinely in the RCI Directory of Resorts, and periodically in the Endless Vacation magazine. (Hamamouche Aff. ¶ 13; Dep. Ex. 19.)
In the summer of 1996, the Pryors used RCI's toll-free telephone number to secure reservations at the Villas Jazmin condominium resort in The Dominican Republic. (John Pryor Dep. at 42-43; Jennie Pryor Dep. at 44-55.) The Villas Jazmin condominium resort is owned by Club Vacaciones Encantadas S.A. (Hamamouche Aff. ¶ 11.) RCI, including all of its related companies, does not own, nor has it ever owned, in whole or in part, the Villas Jazmin condominium resort. ( Id. ¶ 16.) No RCI employee has ever, in the course and scope of employment with RCI, managed, maintained, or exercised any control over the Villas Jazmin condominium resort. ( Id. ¶ 17.)
RCI and Club Vacaciones Encantadas S.A. entered into an affiliation agreement regarding the Villas Jazmin resort whereby the Villas Jazmin agreed to submit enrollment applications to RCI on behalf of purchasers of time shares at the Villas Jazmin and to permit the exchange of time share units through the RCI exchange program. ( Id. ¶ 11 Ex. A.) RCI and RCI affiliated resorts, including the Villas Jazmin, are separate entities, and the services provided by the RCI are distinct from those provided by the affiliated resorts. ( Id. ¶ 15 Ex. B, § 5(2).)
The Terms and Conditions of RCI Membership in effect in 1996 provide in part:
Information about resorts provided by RCI is based on information obtained from resorts, and RCI makes reasonable efforts to ensure that resort information provided by RCI is accurate and complete as of the date such resort information is published by RCI. However, RCI expressly disclaims liability for inaccurate, incomplete or misleading resort information.
(Hamamouche Aff. ¶ 15 Ex. B, § 5(5).) RCI sends representatives to its affiliated resorts to assess the amenities and activities offered by each resort, but it does not specifically investigate the security or safety of the affiliated resorts. ( Id. ¶ 18.) As a result of its basic research, RCI was aware that the Villas Jazmin condominium had installed security doors and windows. ( Id. ¶ 19.)
During their stay at the Villas Jazmin condominium resort, the condominium unit assigned to the Pryors was secured by multiple locks on the doors, (Jennie Pryor Dep. at 88; John Pryor Dep. at 111-12), and iron bars on the windows. (Jennie Pryor Dep. at 95; John Pryor at 121.)
On September 10, 1996, at approximately 2:00 A.M., at least four men broke into the Pryors' condominium unit when they used a pick-ax to separate the iron bars from a window, and disassembled the window itself, which allowed one man to gain entrance and get the Pryors' keys from the dining room table to unlock the front door for the remaining assailants. (Jennie Pryor Dep. at 96-97.) The assailants entered the upstairs bedroom with knives and machetes and inflicted injury upon the Pryors. ( Id. at 87-96; John Pryor Dep. at 117-128.)
The Pryors filed this negligence action on September 10, 1998, alleging that RCI knew, or should have known, of the inherent danger surrounding the Villas Jazmin and had a duty to warn individuals similarly situated to the Pryors, but failed to do so.
Legal Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if "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). An entry of summary judgment is mandated if, after adequate time for discovery, a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To oppose a motion for summary judgment, "there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining whether a genuine issue of material fact exists, all facts are construed in the light most favorable to the non-moving parties (Mr. and Mrs. Pryor) and all reasonable inferences are drawn in favor of those parties. See Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000) (citing Anderson, 477 U.S. at 255).
Here, the moving party, RCI, does not bear the burden of proof at trial. In Celotex, the Supreme Court held that the burden on a moving party that does not bear the burden of proof at trial "may be discharged by `showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Since the motion asserts that Mr. and Mrs. Pryor lack proof to establish a requisite element of their claim for negligence, RCI must show the absence of facts to support the Pryors' claims.
In response, the burden on Mr. and Mrs. Pryor is to demonstrate the existence of a genuine dispute. Under Rule 56(e), "an adverse party may not rest upon mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). However, neither "the mere existence of some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, nor the existence of "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will defeat a motion for summary judgment.
In addition, under the version of Local Rule 56.1 in effect at the time the Defendants filed their summary judgment motions, in response to a summary judgment motion, the non-moving party must serve and file the following:
a separate Response to Statement of Material Facts in compliance with L.R. 56.1(f) that contains (A) a response to each factual assertion in the moving party's Statement of Material Facts and, (B) if applicable, a separate Statement of Additional Material Facts that warrant a denial of summary judgment;
to the extent not previously filed, any additional affidavits and other admissible evidence to support material facts the opposing party relies upon under L.R. 56.1(b)(1), including, but not limited to, portions of depositions and discovery responses; and an answer brief.
S.D. Ind. L.R. 56.1. Failure by a non-moving party to contest the statement of material facts provided by the moving party is an admission of those facts. See Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1983). Though the Pryors provided a "Facts and Circumstances" section in their brief, and a separate "Designation of Issues as to Which There is a Genuine Dispute," the submission was not compliant with Local Rule 56.1. Since they failed to "specifically controvert" to RCI's statement of material facts in compliance with Local Rule 56.1(g), the court will assume that the facts as claimed and supported by admissible evidence are admitted to exist without controversy. S.D. Ind. L.R. 56.1(g).
In addition, since the Pryors did not respond to the motion for summary judgment filed by the Unrelated Defendants, the facts as claimed and supported by the Unrelated Defendants also are assumed to exist without controversy with respect to that motion.
Furthermore, the Pryors did not file a Statement of Additional Material Facts as Rule 56.1(c) requires if evidence beyond that proffered by the movant is submitted. In deciding RCI's summary judgment motion, the court is under no obligation to search for genuine issues of material fact that are not properly presented in the parties' factual statements or responses thereto. See Brasic v. Heinemann's Inc., 121 F.3d 281, 285 (7th Cir. 1997) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995) ("It is not our task, or that of the district court, to scour the record in search of a genuine issue of triable fact.")); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994) (holding that statements required by 56.1 are "roadmaps, and without them the court should not have to proceed further, regardless of how readily it might be able to distill the relevant information from the record on its own"); cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs.") The court declines to do so here.
Even if the court were to overlook the Pryors' procedural shortcomings and delve, without their guidance, into the materials they designated in support of their opposition to RCI's motion, much of their materials are inadmissible in any event, as discussed below.
Analysis Motion to Strike
RCI has raised various concerns about portions of the Pryors' designated testimony and one of the evidentiary materials designated in opposition to RCI's Motion for Summary Judgment. In particular, RCI has moved to strike portions of Mr. and Mrs. Pryors' depositions as hearsay. Rule 32 allows for the use of any part of a deposition, "so far as [it is] admissible under the rules of evidence." Fed.R.Civ.P. 32(a). Thus, deposition statements that include hearsay are to be stricken. See, e.g., Griffin v. City of Milwaukee, 74 F.3d 824, 828 (7th Cir. 1996) (statements were stricken as inadmissible hearsay that would not preclude summary judgment); Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (hearsay testimony may not be considered in summary judgment proceeding). Additionally, RCI has filed a motion to strike the Consular Information Sheet from the U.S. Department of State, dated June 3, 1996, since it has not been authenticated. The court will deal with RCI's objections on an item-by-item basis.
"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. § 801(c).
1. Mrs. Pryor's Designated Testimony
Regarding Jennie Pryor's deposition, RCI has moved to strike page 63, lines 7-17; page 64, line 13 to page 65, line 23; page 73, line 15 to page 74, line 5; page 81, lines 8-25; page 82, lines 3-9; and page 98, line 12 to page 99, line 10, as hearsay.
In addition, RCI objects to the Pryors' explanation that page 84, lines 5-12 can be described as "Client was advised that it was unsafe to walk in the resort vicinity at night unescorted." Since the statement used by the Pryors to describe this portion of the deposition is not evidence and only the deposition testimony itself will be considered, this objection has no real significance.
According to the Pryors, the testimony on page 63, lines 7-17, is not inadmissible hearsay since it is an admission against the interest of RCI made by one of its representatives showing its knowledge of the high crime rate at the Villas Jazmin. However, this statement is in fact hearsay within hearsay. Under Rule 805 of the Federal Rules of Evidence, "hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule. . . ." Fed.R.Evid. 805. Neither of the two statements falls within a hearsay exception. First, the statement of what an American Embassy staff member said to Mrs. Pryor is hearsay. In addition, the statement by the embassy employee of what someone else said is also hearsay. Though the Pryors contend the statement was made by a representative of RCI, the individual making the statement was not identified as an RCI representative. The "contents of the statement . . . are not alone sufficient to establish" that the individual was an agent of RCI. Fed.R.Evid. 801(d)(2). Thus, the embassy employee's statement of what the individual said is inadmissible hearsay. Since neither level of the hearsay testimony is admissible, lines 7-17 from page 63 shall be STRICKEN.
RCI has also moved to strike page 64, line 13 to page 65, line 23. As to page 65, lines 11-23, the questions focused on Villas Jazmin's security problems in relation to those of other resorts. Mrs. Pryor was unable to answer these questions. As a result, there is no hearsay, and these lines are not stricken. However, the remaining lines provide information concerning what Mrs. Pryor learned from the American Embassy regarding whether the Villas Jazmin was located in a high crime area. Though statements made by embassy personnel may be trustworthy, "the statement is [not] more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts." Fed.R.Evid. 807(b). This information could have been obtained by either affidavit or deposition from individuals in the American Embassy. As a result, page 64, line 13 to page 65, line 10 is STRICKEN.
RCI also contends that the residual exception does not apply because the Pryors failed to provide RCI with notice of their intent to use this hearsay, including the identification of the name and address of the declarant. Fed.R.Evid. 807. Provided such notice was not given, this would be another reason to strike these lines from Mrs. Pryor's deposition.
The Pryors contend that page 73, line 15 to page 74, line 5; page 81, lines 8-25; and page 82, lines 3-9 are not hearsay since the statements were made by Richard Leroux, a public relations officer of RCI. Thus, they consider the statements as admissions against interest of RCI. However, under Rule 801(d)(2), there must be some evidence other than the statement by the alleged agent to establish the agency relationship. There is no such evidence to establish that Mr. Leroux is an agent of RCI. Thus, page 73, line 15 to page 74, line 5, page 81, lines 8-25, and page 82, lines 3-9 are STRICKEN as hearsay.
The only proffered evidence is a hearsay statement from Mrs. Pryor regarding Mr. Leroux's alleged statement that he was an agent of RCI. Not only does Mrs. Pryor produce business cards from Mr. Leroux and Helene Bourke which indicate they are employees of the Villas Jazmin, but other evidence also shows they are employees of the Villas Jazmin. (Jennie Pryor Dep. Ex. 7.) In Exhibit 7 there is handwriting under Mr. Leroux's name which states "RCI Public Relations," but it is Jennie Pryor's handwriting. (Jennie Pryor Dep. at 76-77.) Additionally, Michele Hamamouche's uncontradicted affidavit establishes that no RCI employee manages or controls Villas Jazmin; and there were no RCI employees at the Villas Jazmin at the time of the Pryors' vacation.
RCI has also moved to strike line 12 on page 98 to line 10 on page 99. For the most part, these statements relate to Mrs. Pryor's opinion of why the assailants entered their condominium. However, the sentence on page 99, lines 1-3, which relates to what someone at the American Embassy said to Mrs. Pryor is STRICKEN as hearsay. None of the other lines in this designated portion constitute hearsay.
The sentence to be stricken states, "As I stated previously, the American Embassy said they have had many robberies here." (Jennie Pryor Dep. at 99.)
2. Mr. Pryor's Designated Testimony
Regarding Mr. Pryor's deposition, RCI has moved to strike page 71, line 19 to page 72, line 7; page 83, line 6 to page 84, line 25; and page 211, lines 13-16 as inadmissible hearsay.
Page 71, line 19 to page 72, line 7, involves Mr. Pryor's discussion of statements made by Villas Jazmin employees during the orientation, and on page 83, line 6 to page 84, line 25, statements made by Mr. Leroux are recounted. These statements are inadmissible for the same reasons that Mrs. Pryor's statements from page 73 of her deposition are inadmissible. Thus, page 71, line 19 to page 72, line 7 is STRICKEN and page 83, line 6 to page 84, line 25 is STRICKEN.
Finally, RCI objects to page 211, lines 13-16. Mr. Pryor's statement that he had "hear[d] about break-ins before" at the Villas Jazmin is hearsay, since it is introduced "for the truth of the matter asserted." Fed.R.Evid. 801(c). This is exactly the kind of statement that should be excluded. However, even if the statement were to remain, it does not establish a material fact since there is no indication that RCI knew of any prior break-ins at the Villas Jazmin. Thus, page 211, lines 13-16 are STRICKEN.
3. Consular Information Sheet (U.S. State Department Bulletin-Travel Advisory)
RCI also objects to the Consular Information Sheet because it is not authenticated. The Pryors contend that it is an official publication that is self-authenticating under Rule 902(5) of the Federal Rules of Evidence. However, the Consular Information Sheet is not an official publication, but rather, a photocopy of a document that purports to be a domestic public document or public record. Thus, it must satisfy Rule 902(1), (2) or (4), each requiring some sort of attestation or certification by an authorized person. No attestation or certification accompanies the Consular Information Sheet. Since it is not a self-authenticating document, the Consular Information Sheet is STRICKEN.
Even if this document was found to be self-authenticating, it would be immaterial since it does not create a genuine issue regarding proximate cause.
Though the Pryors cite to three different cases in support of the admissibility of the Consular Information Sheet, none of these cases hold that such a document is self-authenticating. In addition, none of them address whether such documents are admissible in opposition to a summary judgment motion. See Guidi v. Inter-Continental Hotels Corp., No. 95-CIV-9006-LAP, 1999 WL 228360 (S.D.N.Y. Apr. 20, 1999); Jewel Seafoods, Ltd. v. M/V Peace River, 39 F. Supp.2d 628 (D.S.C. 1999); Bank Melli Iran v. Phalavi, 58 F.3d 1406 (9th Cir. 1995).
In accordance with Rule 56 of the Federal Rules of Civil Procedure and the Federal Rules of Evidence, the Motion to Strike portions of the Pryors' depositions is GRANTED IN PART as to page 63, lines 7-17; page 64, line 13 to page 65, line 10; page 73, line 15 to page 74, line 5; page 81, lines 8-25; page 82, lines 3-9; and page 99, lines 1-3, of Mrs. Pryor's deposition; GRANTED as to page 71, line 19 to page 72, line 7; page 83, line 6 to page 84, line 25; and page 211, lines 13-16 of Mr. Pryor's Deposition, and GRANTED as to the Consular Information Sheet.
B. Negligence Claim
Mr. and Mrs. Pryor allege that their injuries were the result of RCI's negligence in failing to "adequately investigate the premises known as the [Villas Jazmin]," failing to "adequately warn of the danger and threat posed by third parties at [the Villas Jazmin]," and that RCI had a duty to "reasonably investigate and warn against known hazards and dangers upon the aforementioned premises, but failed to do so." (Compl. ¶ 9.)
In order to establish a prima facie case of negligence, admissible evidence must demonstrate that RCI owed the Pryors a duty, that RCI breached that duty, and that the breach proximately caused the Pryors' injuries. See Dickison v. Hargitt, 611 N.E.2d 691, 694 (Ind.Ct.App. 1993) (citing Flott v. Cates, 528 N.E.2d 847, 848 (Ind.Ct.App. 1988)). Even when all facts and inferences are assumed in a light most favorable the Pryors, and the court assumes that RCI assumed a duty by conducting a general investigation of the Villas Jazmin and breached that duty by not communicating its observations of security measures, Mr. and Mrs. Pryor are unable to establish a prima facie case of negligence because they are unable to raise a genuine issue regarding proximate cause.
The parties agreed at the April 13, 1999 status conference that Indiana law would govern this case. In addition, the Terms and Conditions of RCI Membership provide that Indiana law shall govern all disputes between RCI and its members. (Hamamouche Aff., Ex. B, § 10(7).)
Under Indiana law, "a party's act is the proximate cause of an injury if it is the natural and probable consequence of the act and should have been reasonably foreseen and anticipated in light of the circumstances." Basicker ex rel. Johnson v. Denny's, Inc., 704 N.E.2d 1077, 1080 (Ind.Ct.App. 1999) (citing Walker v. Jones, 511 N.E.2d 507, 509 (Ind.Ct.App. 1987)), trans. denied. However, a "willful, malicious criminal act of a third party is an intervening act which breaks the causal chain between the alleged negligence and the resulting harm." Id. (citing Fast Eddie's v. Hall, 688 N.E.2d 1270, 1274 (Ind.Ct.App. 1997)). Though "proximate cause is generally a question of fact, it becomes a question of law when only a single conclusion can be drawn from the facts." Id.
When a person's negligence creates a situation in which a third party might commit a criminal act, the negligence is not a proximate cause of any resulting injuries unless the negligent person "realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime." Restatement (Second) of Torts § 448 (1965).
In Basicker, the plaintiffs were eating at the defendant's restaurant when two armed men attempted to rob the establishment. During the incident, the plaintiffs were shot and taken hostage. As a result, they filed a lawsuit, alleging the defendant failed to exercise reasonable care for the plaintiffs' safety. The court held that the intentional criminal acts of the two armed men served as a break in the causal chain since they were the ones that initiated the tragic circumstances. See id. According to the court, it was the assailant who should have foreseen and anticipated that his actions would hurt somebody; to hold otherwise would render the defendants responsible for events that were out of its control. See id.
The Pryors cite to Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968 (Ind. 1999), to establish that when determining if a criminal attack is foreseeable, the totality of circumstances test is employed. However, as RCI points out, Delta Tau Delta dealt with premises liability and whether the criminal acts were foreseeable enough to hold a premises owner liable to an invitee. See id. at 971. The court declines to extend Delta Tau Delta to a situation, where, as here, the Defendant neither owns nor controls the premises.
The present case is very similar to Basicker. No admissible evidence suggests that the Villas Jazmin was located in a high crime area or experienced a higher than normal rate of crime. In fact, even the newspaper article submitted by the Pryors states that this event was "something isolated," and that the Villas Jazmin was "secure for vacationers." (Pl.'s Ex. 7 at 2.) Thus, even assuming a duty to warn of the apparent security measures given the relationship between RCI and the Pryors, the Pryors have not come forward with admissible evidence to create a reasonable inference that criminal activity was reasonably foreseeable. See Bradtmiller v. Hughes Props., Inc., 693 N.E.2d 85, 90 (Ind.Ct.App. 1998) ("mere relationship between landlord and tenant did not impose a legal duty to protect against intentional criminal acts of unknown third parties"). Since the third party criminal acts of the Pryors' assailants would sever the causal chain, no reasonable trier of fact could find proximate causation. Since the Pryors are unable to demonstrate proximate cause, summary judgment should be GRANTED to RCI.
Even if the new doors and iron bars raised suspicion of potential criminal activity, such activity is not reasonably foreseeable given the obstacles imposed by these security measures.
The Pryors cite to City of Alexandria v. Allen, 552 N.E.2d 488 (Ind.Ct.App. 1990), in their analysis of proximate cause. However, this case deals with duty rather than proximate cause and has nothing to do with the forseeability of a third party's criminal acts.
C. Unrelated Defendants' Motion for Summary Judgment
The undisputed facts show that besides Resort Condominiums International, Inc., none of the other RCI Defendants played any role in the time share exchange whereby the Pryors acquired the right to stay in the Villas Jazmin. Since none of the Unrelated Defendants facilitated the time share exchange, there is no relationship sufficient to incur a duty owed to the Pryors. Without a duty, there can be no liability for negligence. See Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) ("To premise a recovery on a theory of negligence, a plaintiff must establish . . . a duty on the part of the defendant to form his conduct to a standard of care arising from his relationship with the plaintiff.") As a result, the Unrelated Defendants' Motion for Summary Judgment should be GRANTED.
In addition, the Pryors did not oppose this motion.
The Unrelated Defendants also point out that there is no contractual relationship between any of them and Mr. and Mrs. Pryor with respect to the time share exchange. Thus, they cannot be held liable under a theory of contract.
Conclusion
RCI's Motion to Strike is GRANTED IN PART as to the challenged portions of Mrs. Pryor's deposition, GRANTED as to the challenged portions of Mr. Pryor's deposition, and GRANTED as to the Consular Information Sheet.
Given that Mr. and Mrs. Pryor have failed to raise a genuine issue as to proximate causation, one of the prima facie elements of their negligence claim, RCI's Motion for Summary Judgment will be GRANTED, and the Motion for Summary Judgment made by the unrelated RCI defendants also will be GRANTED. The Motion to Bifurcate therefore is DENIED as moot.
There being no just reason for delay, the court DIRECTS the Clerk to enter judgment in favor of the Defendants, Resort Condominiums International, Inc. (now known as Resort Condominiums International, LLC), RCI Travel, Inc., RCI Quality Services, Inc., RCI Management, Inc., RCI of Canada, Inc. and RCI of the Dominican Republic (believed not to exist and against the Pryors.
The Pryors are hereby ORDERED TO SHOW CAUSE on or before August 18, 2000, why this cause of action should not be dismissed pursuant to Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure as against Defendants, Villas Jazmin En Costambar of The Dominican Republic, Club Villas Jazmin En Costambar of The Dominican Republic, Helen Bourke and Richard Leroux, for failure of the Plaintiffs to serve these Defendants and/or for the failure of the Plaintiffs to prosecute their claim against these Defendants.
ALL OF WHICH IS ORDERED.