Chin v. Garda CL New England, Inc.

Filing 96

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons set forth herein, Defendants Motion to Strike -(Dkt. No. 85) is DENIED in part and GRANTED in part. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MAURICE CHRISTOPHER CHIN,
Plaintiff,
v.
GARDA CL NEW ENGLAND, INC.,
Defendant.

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Civil Action No. 15-cv-13110-TSH

MEMORANDUM & ORDER REGARDING
DEFENDANT’S MOTION TO STRIKE
(Dkt. No. 85)
ROBERTSON, U.S.M.J.
Plaintiff Maurice Christopher Chin (“Chin” or “Plaintiff”) alleges that Defendant Garda
CL New England, Inc., (“Garda” or “Defendant”) falsely accused him of a number of thefts that
occurred while Chin was an employee of Garda, an armored car company, and maliciously
instituted and maintained criminal charges against him in connection with the thefts without
probable cause. Chin asserts claims against Defendant for negligence, defamation, malicious
prosecution, and negligent infliction of emotional distress (Dkt. No. 1-1).
Defendant has filed a motion for summary judgment on all counts of Chin’s complaint,
which Chin opposes. Defendant’s instant motion, which is unopposed, seeks to strike the
entirety of Chin’s statement of disputed facts for failure to comply with L.R. 56.1 and to have
Defendant’s statement of undisputed facts deemed admitted. Additionally, Defendant seeks to
strike from the summary judgment record a document attached to an affidavit from Chin’s
counsel as unauthenticated and inadmissible hearsay. For the reasons set forth below,
Defendant’s motion is DENIED in part and GRANTED in part.

I. FACTS
A thorough recitation of the facts can be found in the Report & Recommendation
regarding Defendant’s special motion to dismiss and motion for summary judgment. For
purposes of this motion, a brief sketch suffices.
On January 14, 2013, Garda client support notified Gary Holland, the branch manager of
the Springfield, Massachusetts branch of Garda (hereinafter “Garda Springfield”), that two
Garda clients were reporting that cash Garda had picked up from them on December 20, 2012
was never deposited in their banks and was missing (DF 6-7; PF 34-35; DR 34-35). 1 Holland
undertook to investigate the matter and determined that 29 small bags of money had arrived at
Garda Springfield on December 20, 2012, been counted, and been placed inside a large, heavy
gauge bag called a “clearing bag,” which was then placed inside the branch’s vault (DF 7-9; PF
35; DR 35). The following day, December 21, 2012, Chin and Jose Garcia, both employees of
Garda, took possession of the clearing bag for delivery to a Loomis facility in Boylston,
Massachusetts (“Loomis Boylston”) (DF 10). When Chin and Garcia delivered the clearing bag
in question to Loomis Boylston on December 21, 2012, it contained only 24 smaller bags of
money, not 29 (DF 11). The five missing bags contained a total of $76,000.00 in cash (DF 12).
Garcia promptly notified Melvin Diaz, the Garda Springfield night vault manager, that the bags
were missing from the delivery to Loomis Boylston (PF 2; 31).
Garda security investigators Michael Kelly and Michael Zanatta were assigned to
investigate the loss (DF 14). Among other things, Kelly and Zanatta interviewed Chin and
Garcia on January 18, 2013, and obtained written statements from each of them (DF 16; 18-19;
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References are to Defendant’s statement of undisputed material facts in support of Defendant’s
motion for summary judgment (“DF”) (Dkt. No. 65), Plaintiff’s statement of disputed and
undisputed facts (“PF”) (Dkt. No. 77), and Defendant’s response to Plaintiff’s statement of
undisputed facts (“DR”) (Dkt. No. 84).
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PF 39, 63, 75; DR 39, 63, 75). Both denied any involvement in or knowledge about the missing
bags (DF 18-19). Holland interviewed Diaz, who also denied taking any of the money (DF 19).
Neither Kelly nor Holland could recall interviewing Diaz or taking a written statement from him
(PF 64-65; DR 64-65). However, Garda produced in discovery a handwritten document dated
January 18, 2013, labeled “Statement,” and beginning, “I Melvin Diaz ….” (PF 65; DR 65).
Later in the day on January 18, 2013, Kelly and Zanatta went to the Springfield Police
Department (“SPD”), where they met with Lieutenant Maurice Kearney (“Lt. Kearney”), to
report the loss (DF 24-25; PF 89; DR 89). Kelly and Zanatta advised Lt. Kearney that Chin and
Garcia had been the driver and messenger, respectively, on the truck from which the money had
gone missing (DF 25). They provided him with supporting paperwork and a copy of the portion
of Garda’s surveillance video showing the 29 bags of money arriving at Garda Springfield and
being placed into the clearing bag (DF 26; PF 90-91, 93; DR 90-91, 93). Kelly told Lt. Kearney
that he believed Chin and Garcia were responsible for the theft (PF 4, 92). On December 20,
2012, Lt. Kearney filed a criminal complaint for the loss and requested and obtained an arrest
warrant for Chin (DF 39; PF 114; DR 114)). Garda passed on information about three additional
losses to the SPD, and, on February 26, 2013, complaints issued against Chin in connection with
losses occurring on September 17, 2012 and January 2, 2013 (DF 42-43; PF 116, 122, 131, 143,
147, 150; DR 116, 122, 131, 143, 147, 150). Chin was ultimately indicted for the December 21,
2012 loss only; the charge was dismissed after Garda failed to produce material evidence,
including video surveillance, in discovery in the criminal case (DF 50, 58; PF 132, 137; DR 132,
137).

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II.

DISCUSSION
A. Chin’s Statement of Facts
Local Rule 56.1 provides as follows:
Motions for summary judgment shall include a concise statement
of the material facts of record as to which the moving party
contends there is no genuine issue to be tried, with page references
to affidavits, depositions and other documentation. …. A party
opposing the motion shall include a concise statement of the
material facts of record as to which it is contended that there exists
a genuine issue to be tried, with page references to affidavits,
depositions and other documentation. …. Material facts of record
set forth in the statement required to be served by the moving party
will be deemed for purposes of the motion to be admitted by the
opposing parties unless controverted by the statement required to
be served by opposing parties.

Id. This rule “was adopted to expedite the process of determining which facts are genuinely in
dispute, so that the court may turn quickly to the usually more difficult task of determining
whether the disputed issues are material.” Brown v. Armstrong, 957 F. Supp. 1293, 1297 (D.
Mass. 1997).
Defendant contends that Chin’s statement of facts fails to comply with the local rule in
that it includes nearly 200 additional statements of fact, some of which repeat those in
Defendant’s statement and some of which are immaterial to the motion. Defendant also argues
that Chin’s L.R. 56.1 statement impermissibly commingles facts with argument and conclusions,
and includes facts that are not supported by the cited evidence. As a sanction, Defendant
requests that this court strike the entirety of Chin’s L.R. 56.1 statement and deem Defendant’s
L.R. 56.1 statement admitted.
The court declines Defendant’s invitation to impose such a draconian sanction where
Chin’s Rule 56.1 statement is not in obvious noncompliance with the rule. In the first thirteen
numbered paragraphs of his statement, Chin identifies the facts that Defendant claims are
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undisputed, but which he disputes, with page references to the summary judgment record. He
then identifies additional disputed material facts, again with page references to the record. It is
true that Chin’s statement cannot fairly be characterizes as concise and that he has made the
work of the court more difficult as a result. Nonetheless, the court finds that the shortcomings
with Chin’s statement present an insufficient basis for deeming the facts set forth in Defendant’s
L.R. 56.1 statement admitted. To the extent that any of Chin’s individual responses or
statements of fact are improper because they are argumentative, conclusory, or not supported by
the cited evidence, the court will not rely on them in its report and recommendation on
Defendant’s motion for summary judgment.
B. The Diaz Statement
Defendant argues that the “alleged statement by Melvin Diaz” should be stricken as
inadmissible because it is not authenticated and is inadmissible as hearsay. The contested
document is one of hundreds of pages attached to an affidavit from Chin’s counsel (Dkt. 78-3 at
18). The court agrees with Defendant that the document as presented is not properly
authenticated, and Plaintiff, who filed no opposition to the instant motion, makes no argument
that it is. Nevertheless, in a related case brought by Garcia, Garcia v. Garda, CL New England,
Dkt. No. 3:15-cv-13093-TSH, the court has held that the very same document is properly
authenticated by circumstantial evidence under Fed. R. Evid. 901. Under these circumstances,
the court declines to strike the document in its entirety, where it seems likely Plaintiff could
properly authenticate it. However, the court agrees with Defendant that Plaintiff offers the
substance of the document for inadmissible hearsay purposes, and, therefore, will not consider its
contents on summary judgment. Specifically, Chin offers the document for the truth of matters
asserted therein, including that Diaz told Garcia not to tell Holland about missing bags and that

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Diaz was aware that there were many missing bags/thefts, but he failed to look into them or
report them to Holland (Dkt. No. 76 at 3-4). The court will take into account the record evidence
that the document was not turned over to the Springfield Police Department or the Hampden
County District Attorney’s Office.
C. CONCLUSION
For the reasons set forth herein, Defendants’ motion to strike (Dkt. No. 85) is DENIED in
part and GRANTED in part.
Dated: August 16, 2017

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE

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