Marano, M.D. et al v. RBS Citizens Financial Group, Inc. et al

Filing 41

MEMORANDUM AND ORDER granting 39 Motion for Summary Judgment against Defendant Stephen Marano as to Count V of the Complaint. So Ordered by Judge Mary M. Lisi on 4/17/2014. (A copy of the attached document was forwarded to pro se Defendant Stephen Marano via first-class mail on 4/17/2014.) (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
ALBERT J. MARANO, M.D.,
ALBERT J. MARANO, M.D., INC.,
Plaintiffs,
v.

C.A. No. 12-639

RBS CITIZENS FINANCIAL GROUP
INC., and STEPHEN MARANO,
Defendants.
MEMORANDUM AND ORDER
Plaintiffs, Albert J. Marano, M.D., (“Dr. Marano”) and Albert J. Marano, M.D., Inc.,
(“Marano, M.D., Inc.”) (collectively “Plaintiffs”) have moved for summary judgment against
Defendant, Stephen Marano (“Defendant”), as to Count V of the complaint.1 Count V of the
complaint alleges that Defendant misappropriated, converted and embezzled Plaintiffs’ funds for
his own personal use. For the reasons stated herein, Plaintiffs’ motion is granted.
I. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). An issue is “genuine” if the pertinent evidence is such that a rational factfinder could
resolve the issue in favor of either party, and a fact is “material” if it “has the capacity to sway
the outcome of the litigation under the applicable law.” National Amusements, Inc. v. Town of
Dedham, 43 F.3d 731, 735 (1st Cir. 1995).

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Defendant is proceeding pro se, thus the Court construes his papers more liberally than those drafted by an
attorney. Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). Nevertheless, Defendant’s pro se status does not
excuse him from complying with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.
1997).

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The moving party bears the initial burden of showing the Court that no genuine issue of
material fact exists. Id. Once the moving party makes this showing, the non-moving party must
point to specific facts demonstrating a trialworthy issue. Id. The Court views all facts and draws
all reasonable inferences in the light most favorable to the nonmoving party. Continental
Casualty Co. v. Canadian Universal Insurance Co., 924 F.2d 370 (1st Cir. 1995).
To aid the Court in identifying genuine issues of material fact, this District has adopted
Local Rule Cv 56. “Valid local rules are an important vehicle by which courts operate. Such
rules carry the force of law . . . and they are binding upon the litigants and upon the court itself . .
. .” Air Line Pilots Association v. Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir.
1994) (citations and footnote omitted). Local Rule Cv 56 provides that, in addition to a
memorandum of law, the moving party in a motion for summary judgment “shall” also file a
separate statement of undisputed facts. D.R.I. LR Cv 56(a)(1). An “objecting party that is
contesting the movant’s Statement of Undisputed Facts shall file a Statement of Disputed Facts,
which shall be numbered correspondingly to the Statement of Undisputed Facts, and which shall
identify the evidence establishing the dispute . . . .” Id. at (a)(3). “[A]ny fact alleged in the
movant’s Statement of Undisputed Facts shall be deemed admitted unless expressly denied or
otherwise controverted by a party objecting to the motion.” Id. Parties who ignore Local Rule
Cv 56 do so at their own peril. See generally Gosselin v. Webb, 242 F.3d 412, 415 n.2 (1st Cir.
2001); see also Pope v. Potter, No. 03-544, 2005 WL 3178179 (D.R.I. November 28, 2005)
(under similar prior version of local rule, the court held that an attempt to dispute facts by merely
incorporating them into a memorandum opposing a motion for summary judgment does not meet
the requirements of the local rule; a separate statement must be filed).

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In addition to its motion and memorandum, Plaintiffs filed a statement of undisputed
facts. See D.R.I. LR Cv 56(a)(1). Defendant answered the complaint but did not respond to the
motion for summary judgment. Thus, the facts as delineated in Plaintiffs’ statement of
undisputed facts are deemed admitted. See D.R.I. LR Cv 56(a)(3); Indian Harbor Insurance Co.
v. Assurance Co. of America, No. CA 08-146 ML, 2010 WL 2365571 (D.R.I. May 21, 2010),
report and recommendation adopted, No. CA 08-146 ML, 2010 WL 2346654 (D.R.I. June 9,
2010).
II. Background
Dr. Marano is a practicing physician in Rhode Island. Dr. Marano maintained a business
account for Marano M.D., Inc. with Citizens Bank. Defendant was the business manager for
Marano M.D., Inc. from 2006 through April 2012. As business manager, among other things,
Defendant was in charge of maintaining Dr. Marano’s and Marano M.D., Inc.’s bank accounts,
depositing checks into those accounts, and ensuring that patient co-payments were being
submitted to Marano M.D., Inc. in a timely manner. Defendant was responsible for depositing
payments made to Plaintiffs into the appropriate account.
From December 5, 2006, until September 10, 2007, Defendant was the sole owner of a
personal checking account with Citizens Bank. Defendant deposited checks made out to Dr.
Marano and Marano M.D., Inc. into his account without the knowledge or authorization of
Plaintiffs. Citizens Bank accepted the checks for deposit into the account even though (1)
Defendant was the sole owner of the account and (2) the checks were made payable to Plaintiffs.
On September 11, 2007, Defendant forged the name of Dr. Marano on a Citizens Bank
signature card and purported to create a joint account with Dr. Marano as a co-owner of

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Defendant’s personal checking account. After forging Dr. Marano’s signature, from September
11, 2007, through April 5, 2011, Defendant deposited checks made payable to Plaintiffs into the
account without the authorization of Plaintiffs. At this time, Plaintiffs were not aware of the
account.
As a result of an audit, Dr. Marano learned of discrepancies in the Marano M.D., Inc.
business account. Dr. Marano learned of Defendant’s personal checking account in April 2012
when he visited a Citizens Bank branch office and was informed by a Citizens employee that
there was a second account into which Marano M.D., Inc. checks were being deposited. Dr.
Marano immediately closed the account. By the time Dr. Marano closed the account, however,
Defendant had already withdrawn $647,270.09 of Plaintiffs’ funds for his own personal use.
III. Analysis
Rhode Island General Laws § 9-1-2 provides, in part, that “[w]henever any person shall
suffer any injury to his . . . person, reputation, or estate by reason of the commission of any
crime or offense, he . . . may recover his . . . damages for the injury in a civil action against the
offender . . . .” R.I. Gen. Laws § 9-1-2. Section 9-1-2 “imposes civil liability for injuries
resulting from a criminal act.” Willis v. Omar, 954 A.2d 126, 131 (R.I. 2008). Section 9-1-2
gives an individual injured as a result of a crime a right of action where none existed at common
law. Walden v. City of Providence, 495 F. Supp. 2d 245 (D.R.I. 2007). A plaintiff may bring an
action under § 9-1-2 even if a criminal complaint has not been filed. Id.; see also § 9-1-2;
Morabit v. Hoag, 80 A.3d 1, 4 (R.I. 2013) (stating that § 9-1-2 “provides civil liability for
criminal offenses” and a “plaintiff may recover civil damages for injury . . . that results from the
commission of a crime or offense, irrespective of whether charges have been filed against the

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offender”).
Section 11-41-3 defines embezzlement as follows:
every officer, agent, clerk, servant, or other person to whom any money or other
property shall be entrusted for any specific purpose. . . who shall embezzle or
fraudulently convert to his or her own use, or who shall take or secrete, with
intent to embezzle or fraudulently convert to his or her own use, any money or
other property which shall have come into his or her possession or shall be under
his or her care or charge by virtue of his or her employment . . . shall be deemed
guilty of larceny . . . .
R.I. Gen. Laws § 11-41-3. The three elements necessary to prove embezzlement are:
(1) that defendant was entrusted with the property for a specific use, (2) that he
came into possession of the property in a lawful manner, often as a result of his
employment, and (3) that defendant intended to appropriate and convert the
property to his own use and permanently deprive that person of the use.
State v. Lough, 899 A.2d 468, 471 (R.I. 2006) (internal quotation marks and citation omitted).
As business manager, Defendant was responsible for depositing payments made to the
Plaintiffs into the appropriate account. Defendant came into possession of Plaintiffs’ funds in a
lawful manner – as a result of his employment as business manager of Marano M.D., Inc. See
generally Lough, 899 A.2d at 471; see also State v. Oliveira 432 A.2d 664, 666 (R.I. 1981) (§
11-41-3 “makes clear that embezzlement involves the violation of a fiduciary or agency
relationship . . . [that] can arise as a result of a person’s employment”). Last, because
Defendant did not respond to the motion for summary judgment, it is undisputed that Defendant
converted Plaintiffs’ funds of $647,270.09 for his own use with the intent to permanently deprive
Plaintiffs of the use of the funds. See generally Lough, 899 A.2d at 473 (an individual “puts
property to his own use when he treats it as his own”).
IV. Conclusion
Based on the uncontroverted facts as set forth in the Plaintiffs’ papers, the Court finds
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that the Plaintiffs’ motion for summary judgment should be and it hereby is granted. The Clerk
is directed to enter judgment in favor of the Plaintiffs in the amount of $647,270.09.

SO ORDERED
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
April 17, 2014

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