Robinson v. Asperilla et al

Filing 37

OPINION AND ORDER denying 26 plaintiff's Motion for Partial Summary Judgment; denying 31 plaintiff's Motion to Strike the Affidavit of Defendant Kurt Robert Septer. See Opinion and Order for details. Signed by Judge John E. Steele on 5/1/2014. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALBERT M. ROBINSON,
Plaintiff,
v.

Case No: 2:13-cv-616-FtM-29DNF

MARIANITO O. ASPERILLA and
KURT R. SEPTER,
Defendants.

OPINION AND ORDER
This matter comes before the Court on the plaintiff’s Motion
for Partial Summary Judgment (Doc. #26) filed on March 17, 2014.
Defendants filed a Response to Plaintiff's Motion for Summary
Judgment (Doc. #28) on March 26, 2014.

Plaintiff filed a Motion

to Strike the Affidavit of Defendant Kurt Robert Septer (Doc. #31)
on April 8, 2014, and defendants filed a Response to the Motion to
Strike (Doc. #34) on April 18, 2014.
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied 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(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The

moving party bears the burden of identifying those portions of the
pleadings, depositions, answers to interrogatories, admissions,
and/or affidavits which it believes demonstrate the absence of a
genuine issue of material fact.

Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986); Hickson Corp. v. N. Crossarm Co., Inc., 357
F.3d 1256, 1259-60 (11th Cir. 2004).

To avoid the entry of summary

judgment, a party faced with a properly supported summary judgment
motion

must

affidavits,

come

forward

depositions,

with

answers

extrinsic
to

evidence,

interrogatories,

i.e.,
and/or

admissions, which are sufficient to establish the existence of the
essential elements to that party’s case, and the elements on which
that party will bear the burden of proof at trial.

Celotex Corp.

v. Catrett, 477 U.S. at 322; Hilburn v. Murata Elecs. N. Am., Inc.,
181 F.3d 1220, 1225 (11th Cir. 1999).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.

2

Co.

v.

M/V

Nan

Fung,

695

F.2d

1294,

1296-97

(11th

Cir.

1983)(finding summary judgment “may be inappropriate where the
parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts”)).

“If a

reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces
a genuine issue of material fact, then the court should not grant
summary judgment.”

Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).
II.
Plaintiff Albert M. Robinson filed this action against Dr.
Marianito O. Asperilla and Kurt R. Septer on August 22, 2013, to
secure

relief

for

violations

of

the

federal

civil

Influenced and Corrupt Organizations Act (RICO).

Racketeer
(Doc. #1.)

Plaintiff asserts that he is entitled to summary judgment because
the undisputed facts demonstrate that defendants stole his mobile
billboard trailer and boat.
the

burden

of

identifying

As the moving party, plaintiff bears
the

portions

of

the

record

that

demonstrate the absence of a genuine issue of material fact. After
reviewing the record, the Court finds that plaintiff has failed to
demonstrate the absence of a genuine issue of material fact.
Section 1962(c) of the RICO Act makes it unlawful “for any
person employed by or associated with any enterprise engaged in,
or the activities of which affect, interstate or foreign commerce,

3

to conduct or participate, directly or indirectly, in the conduct
of such enterprise’s affairs through a pattern of racketeering
activity.”

18 U.S.C. § 1962(c).

To establish a federal civil

RICO violation under § 1962(c), the plaintiff must prove (1)
conduct

(2)

of

an

enterprise

(3)

through

a

pattern

(4)

of

racketeering activity and (5) injury to “business or property” (6)
that was “by reason of” the substantive RICO violation.

Williams

v. Mohawk Indus., 465 F.3d 1277, 1282 (11th Cir. 2006), cert.
denied,

549

1964(c)).

U.S.

1260

(2007)

(citing

18

U.S.C.

§§

1962(c),

For purposes of plaintiff’s motion, the Court will only

address elements (3) and (4)-a pattern of racketeering activity.
To establish a pattern of racketeering activity, plaintiff
must

establish

at

least

racketeering activity.

two

distinct

but

related

Williams, 465 F.3d at 1283.

acts

of

According to

18 U.S.C. § 1961, the term “racketeering activity” includes, among
other things, any act which is indictable under 18 U.S.C. § 1951.
18 U.S.C. § 1961(1)(B).

Section 1951 provides as follows:

(a) Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens
physical violence to any person or property in
furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both.
(b) As used in this section—
(1) The term “robbery” means the unlawful taking or
obtaining of personal property from the person or in the
presence of another, against his will, by means of actual

4

or threatened force, or violence, or fear of injury,
immediate or future, to his person or property, or
property in his custody or possession, or the person or
property of a relative or member of his family or of
anyone in his company at the time of the taking or
obtaining.
(2) The term “extortion” means the obtaining of property
from another, with his consent, induced by wrongful use
of actual or threatened force, violence, or fear, or
under color of official right.
18 U.S.C. § 1951(a)-(b)(1)-(2).
In this case, plaintiff asserts that defendants committed two
acts of theft that interfered with interstate commerce in violation
of § 1951.

Plaintiff, however, has failed to present any evidence

supporting this assertion. 1

Even if plaintiff were to establish

that defendants committed two acts of theft, he would still not be
entitled to summary judgment because he has failed to allege or
establish that defendants took the property through the use of
actual or threated force.

See 18 U.S.C. § 1951(b).

Because

plaintiff has failed to establish a RICO violation, his motion for
summary judgment is denied.
Accordingly, it is now
ORDERED:
1.

Plaintiff’s Motion for Summary Judgment (Doc. #26) is

DENIED.

1Plaintiff’s

evidence actually contradicts his position. The
investigation reports from the Charlotte County Sheriff’s Office
conclude that no crime was committed because the billboard trailer
was not stolen. (Doc. #26-6.)

5

2.

Plaintiff’s Motion to Strike the Affidavit of Defendant

Kurt Robert Septer (Doc. #31) is DENIED as moot.
DONE AND ORDERED at Fort Myers, Florida, this
May, 2014.

Copies:
Pro se parties
Counsel of record

6

1st

day of