United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
matter arises from an incident that occurred between
plaintiff Brian Lamar Ponder and defendant Donald Sony
Prophete in the Dominican Republic. Plaintiff claims that on
February 5, 2016, defendant battered, assaulted, and falsely
imprisoned him at a villa allegedly owned in-part by
defendant. Defendant denies all of plaintiff's
allegations. The matter is now before the court on
defendant's Motion for Summary Judgment (Doc. 61).
Defendant argues that plaintiff has provided no evidence to
support his allegations of battery, assault and false
imprisonment and that defendant is therefore entitled to
judgment as a matter of law. For the reasons set forth below,
the court denies the motion.
and three other individuals formed a limited liability
company, Nero Quantum, LLC, in 2015. Nero Quantum purchased
and owned an investment rental villa in Sousa, Dominican
Republic. At some point, and for reasons unrelated to the
present case, defendant and two other members decided to
remove Titus Duncan from his membership in Nero Quantum.
Duncan retained plaintiff to represent him in litigation
involving Nero Quantum.
to retaining plaintiff, Duncan was represented by Peter
Hasbrouck. On January 5, 2016, defendant notified Hasbrouck
and Duncan that he intended to use the villa from February
4-8, 2016. On January 12, 2016, plaintiff sent a letter to
defendant notifying him that he had been retained by Duncan.
Plaintiff and defendant then began exchanging emails
regarding the villa. Plaintiff informed defendant that Duncan
was the sole owner of the villa, and that defendant and other
members of Nero Quantum were not permitted to use it. On
February 3, 2016, plaintiff notified defendant that the villa
had been rented out during the time defendant intended to use
the property. He informed defendant that the villa was
occupied and proper measures would be taken to keep it secure
from unauthorized entry by defendant and his clients or
February 5, 2016, defendant arrived at the villa with two
business acquaintances and a Puerto Plata police officer.
Upon arrival, defendant discovered that plaintiff, a female
acquaintance, and a personal chef were occupying the villa.
At this point, the parties' stories diverge. Defendant
alleges that soon after his arrival, three to five men
arrived at the villa claiming they had flown in from Atlanta
at plaintiff's invitation to watch the Super Bowl.
Defendant then insisted that plaintiff and his guests
immediately leave the villa. Plaintiff, claiming he was going
to collect his belongings, locked himself in a bedroom for
several hours and only left after his guests, the local
police, and local Dominican attorneys convinced him to do so.
Defendant maintains that he never touched or threatened
plaintiff or any of plaintiff's guests.
however, claims that he was staying at the villa at the
invitation of Duncan. At some point defendant arrived at the
villa and began yelling at plaintiff and demanding to know
his name. He then “charged at” plaintiff.
Plaintiff retreated to the bedroom and defendant followed him
and “aggressively pushed” him. After a man pulled
defendant away, plaintiff was able to close and lock the
bedroom door. Defendant continued to yell at plaintiff
through the locked bedroom door, threatening to kill him and
beat him up. After being locked in the bedroom for
approximately one hour, plaintiff- with the assistance of a
friend-exited the bedroom through a sliding glass door.
Plaintiff's friend escorted him toward the pool so that
he could retrieve his belongings. At that point, defendant
again “charged” toward plaintiff, picked up a bar
stool, and attempted to throw it at plaintiff.
Defendant's attempt was thwarted by another man at the
scene who grabbed the chair before defendant could throw it.
Plaintiff and his friends then left the premises by taxi. At
some point before returning to the United States, plaintiff
filed a police report against defendant.
filed a complaint against defendant for battery, assault, and
false imprisonment on February 10, 2016 in the Southern
District of New York. On June 6, 2016, the matter was
transferred to the District of Kansas because the incident
occurred outside of the United States and defendant was a
resident of Kansas.
judgment is appropriate if the moving party demonstrates that
there is “no genuine issue as to any material
fact” and that it is “entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(c). A
“genuine” factual dispute requires more than a
mere scintilla of evidence. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). The party seeking
summary judgment bears the initial burden of showing the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party demonstrates an absence of evidence in support
of an element of the case, the burden then shifts to the
nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248. The nonmoving party
“may not rest upon the mere allegations or denials of
his pleading.” Id.
making the summary judgment determination, the court must
view the evidence and reasonable inferences in the light most
favorable to the nonmoving party. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). Ultimately, the court evaluates
“whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it
is so one-sided that one party must prevail as a matter of
law.” Liberty Lobby, 477 U.S. at 252.
argues he is entitled to summary judgment because
plaintiff's claims lack proof and that he has no evidence
to support essential elements of his claims. Plaintiff
maintains there are disputed issues of material fact that
preclude summary judgment.
mentioned above, plaintiff has pleaded battery, false
imprisonment, and assault against defendant. This matter is
before this court on diversity jurisdiction. Plaintiff is a
citizen of New Jersey and defendant is a citizen of Kansas.
The alleged torts were committed in the Dominican Republic.
In the Pretrial Order, defendant argues that Kansas law
applies pursuant to 28 U.S.C. § 1652. Plaintiff,
however, claims New Jersey law applies because he was a
citizen of New Jersey at the time he filed the complaint.
Defendant cites Kansas law in his motion for summary