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Ponder v. Prophete

United States District Court, D. Kansas

January 29, 2019

BRIAN LAMAR PONDER, Plaintiff,
v.
DONALD SONY PROPHETE, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         Defendant 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.

         Prior 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 guests.

         On 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.

         Plaintiff, 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.

         Plaintiff 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.

         II. Legal Standards

         Summary 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.

         In 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.

         III. Analysis

         Defendant 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.

         As 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 ...


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