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UNITED STATES DISTRICT COURT DISTRICT OF MAINE PATCO CONSTRUCTION )COMPANY, INC., ) ) Plaintiff ) )v. ) No. 2:09-cv-503-DBH )
PEOPLE’S UNITED BANK
) d/b/a OCEAN BANK, ) ) Defendant ) RECOMMENDED DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Defendant People‟s United Bank d/b/a Ocean Bank (“Ocean Bank”
or “Bank”
) moves forsummary judgment as to all six counts of the operative complaint of Patco Construction
Company, Inc. (“Patco”), and Patco cross
-moves for summary judgment as to Count I.
See
Defendant People‟s United Bank‟s Motion for Summary Judgment (“Defendant‟s S/J Motion”)(Docket No. 62) at 1; Plaintiff‟s Motion for Summary Judgment (“Plaintiff‟s S/J Motion”)
(Docket No. 74) at 1. Ocean Bank also moves to exclude the expert testimony of George F.
Thomas and to strike Patco‟s jury demand, while Patco moves to exclude in part the expert
testimony of Peter A. Makohon.
See
Defendant People‟s United Bank‟s
Daubert
/
Kumho
MotionTo Exclude Expert Testimony of George F. Thomas
(“Defendant‟s Motion To Exclude”)
(Docket No. 64);
Defendant People‟s United Bank‟s Motion To Strike Plaintiff‟s Jury TrialDemand (“Defendant‟s Motion To Strike”) (Docket No. 66); Plaintiff‟s Motion To ExcludeCertain Testimony of Peter A. Makohon (“Plaintiff‟s Motion To Exclude”) (Docket No. 77).
For the reasons that follow, I recommend that the court
grant Ocean Bank‟s motion for
summary judgment
as to all counts of Patco‟s operative
Second Amended Complaint and deny
Patco‟s cross
-motion for summary judgment as to Count I. This disposition, if adopted by the
Case 2:09-cv-00503-DBH Document 120 Filed 05/27/11 Page 1 of 70 PageID #: 2928
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court, would moot the parties‟ motions to exclude expert testimony and the Bank‟s motion tostrike Patco‟s jury trial demand. Hence, I do not consider the latter three motions.
I. Applicable Legal StandardsA. Federal Rule of Civil Procedure 56
Summary judgment is
appropriate “if the movant shows that there is no genuine disputeas to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P.56(a);
Santoni v. Potter
, 369 F.3d 594, 598 (1st Cir. 2004). “A dispute is genuine if the evidence
about the fact is such that a reasonable jury could resolve the point in the favor of the non-
moving party.”
Rodríguez-
Rivera v. Federico Trilla Reg’l Hosp. of Carolina
, 532 F.3d 28, 30(1st Cir. 2008) (quoting
Thompson v. Coca-Cola Co.
, 522 F.3d 168, 175 (1st Cir. 2008)). “Afact is material if it has the potential of determining the outcome of the litigation.”
Id
. (quoting
Maymi v. P.R. Ports Auth.
, 515 F.3d 20, 25 (1st Cir. 2008)).The party moving for summary judgment must demonstrate an absence of evidence to
support the nonmoving party‟s case.
Celotex Corp. v. Catrett
, 477 U.S. 317, 325 (1986). Indetermining whether this burden is met, the court must view the record in the light mostfavorable to the nonmoving party and give that party the benefit of all reasonable inferences inits favor.
Santoni,
369 F.3d at 598. Once the moving party has made a preliminary showing thatno genuine issue of material fact exists, the
nonmovant must “produce specific facts, in suitableevidentiary form, to establish the presence of a trialworthy issue.”
Triangle Trading Co. v. Robroy Indus., Inc.
, 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted);Fed. R. Civ. P. 56(c).
“As to any essential factual element of its claim on which the nonmovant
would bear the burden of proof at trial, its failure to come forward with sufficient evidence togenerate a trialworthy issue warrants summary judgment to the moving party.
”
In re Spigel
, 260
Case 2:09-cv-00503-DBH Document 120 Filed 05/27/11 Page 2 of 70 PageID #: 2929
3F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).
“This framework is not altered by the presence of
cross-motions for summary judgment
.”
Cochran v. Quest Software, Inc
., 328 F.3d 1, 6
(1st Cir. 2003). “[T]he cou
rt must mull each
motion separately, drawing inferences against each movant in turn.”
Id
. (citation omitted);
seealso, e.g., Wightman v. Springfield Terminal Ry. Co
., 100 F.3d 228, 230
(1st Cir. 1996) (“Cross
motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment
per se.
Cross motions simply require us to determine whether either of theparties deserves judgment as a matter of law on facts that are not disputed. As always, weresolve all factual disputes and any competing, rational inferences in the light most favorable to
the [nonmovant].”) (citations omitted).
B. Local Rule 56
The evidence that the court may consider in deciding whether genuine issues of materialfact exist for purposes of summary judgment is circumscribed by the local rules of this district.
See
Loc. R. 56. The moving party must first file a statement of material facts that it claims arenot in dispute.
See
Loc. R. 56(b). Each fact must be set forth in a numbered paragraph andsupported by a specific record citation.
See id
. The nonmoving party must then submit a
responsive “separate, short, and concise” statement of material facts in which it must “admit,
deny or qualify the facts by reference to each numbered paragraph
of the moving party‟sstatement of material facts[.]” Loc. R. 56(c). The nonmovant likewise must support each denial
or qualification with an appropriate record citation.
See id
. The nonmoving party may alsosubmit its own additional statement of material facts that it contends are not in dispute, eachsupported by a specific record citation.
See id
. The movant then must respond to the nonmoving
party‟s statement of additional facts, if any, by way of a reply statement of material facts in
Case 2:09-cv-00503-DBH Document 120 Filed 05/27/11 Page 3 of 70 PageID #: 2930
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Patco Constr. Co. v. People's United Bank, 09-Cv-00503 (D. Me.; May 27, 2011)
Court grants summary judgment against plaintiff who argued that its bank failed to act reasonably to prevent unauthorized online access to its account.
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