Marcano-Martinez et al v. Cooperativa de Seguros Multiples de Puerto Rico et al, No. 3:2019cv01023 - Document 38 (D.P.R. 2020)
Court Description: OPINION AND ORDER granting 29 MOTION for Summary Judgment. Judgment shall be entered accordingly. Signed by US Magistrate Judge Camille L. Velez-Rive on 2/6/2020. (ari) Modified on 2/7/2020to edit title (gmm).
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Marcano-Martinez et al v. Cooperativa de Seguros Multiples de Puerto Rico et al Doc. 38 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO HECTOR MARCANO-MARTINEZ, et al., Plaintiffs, CIVIL NO. 19-10 23 (CVR) v. COOPERATIVA DE SEGUROS MULTIPLES DE PUERTO RICO, et al., Defendants. OPIN ION AN D ORD ER IN TROD U CTION The present case is one in a long line of cases arising in the afterm ath of Hurricane María’s passing through Puerto Rico, where it im pacted on Septem ber 20 , 20 17. Plaintiffs Héctor Marcano-Martínez and Wanda Hernández-Díaz (“Plaintiffs”) filed this case against their insurer, Defendant Cooperativa de Seguros Múltiples de Puerto Rico (“CSM” or “Defendant CSM”), averring that Defendant refused to pay for the dam ages their insured property suffered because of the hurricane, which am ount to over $ 750 ,0 0 0 .0 0 . Defendant now seeks sum m ary disposition of this case, contending that the case is tim e-barred as the applicable policy indicates that any legal claim m ust be filed within one year of the loss. (Docket No. 29).1 Defendant argues that the hurricane occurred on Septem ber 20 , 20 17 and the claim was filed som e 16 m onths later, that is, on J anuary 9, 20 19. As such, the claim is tim e-barred because the contractual language of the policy between the parties indicates that suit m ust be brought within one year of the incident 1 Before the Court are also Plaintiffs’ opposition thereto (Docket No. 36) and Defendant’s Reply to Plaintiffs’ opposition (Docket No. 37). Dockets.Justia.com Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 2 _______________________________ that caused the loss. In addition, Defendant CSM contends that the prescriptive period was never interrupted for Plaintiffs’ Com plaint to be considered tim ely on the date it was filed. Therefore, the case is tim e-barred under Puerto Rico law and m ust be dism issed. For the reasons explained below, Defendants’ Motion for Sum m ary J udgm ent is GRANTED. (Docket No. 29). STAN D ARD Sum m ary judgm ent is appropriate when “the pleadings, depositions, answers to interrogatories and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed.R.Civ.P. 56 (c). Pursuant to the language of the rule, the m oving party bears the two-fold burden of showing that there is “no genuine issue as to any m aterial facts,” and that he is “entitled to judgm ent as a m atter of law.” VegaRodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997). After the m oving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists “a trial worthy issue as to som e m aterial fact.” CortésIrizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deem ed “m aterial” if it potentially could affect the outcom e of the suit. Id. Moreover, there will only be a “genuine” or “trial worthy” issue as to such a “m aterial fact,” “if a reasonable fact-finder, exam ining the evidence and drawing all reasonable inferences helpful to the party resisting sum m ary judgm ent, could resolve the dispute in that party’s favor.” Id. At all tim es during the consideration of a m otion for sum m ary judgm ent, the Court m ust exam ine the entire record “in the light m ost flattering to the non-m ovant and indulge all Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 3 _______________________________ reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994). The Court of Appeals for the First Circuit has “em phasized the importance of local rules like Local Rule 56 [of the District of Puerto Rico].” Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 20 0 7); see also Colón v. Infotech Aerospace Servs., Inc., 869 F.Supp.2d 220 , 225-226 (D.P.R. 20 12). Rules such as Local Rule 56 “are designed to function as a m eans of ‘focusing a district court's attention on what is -and what is notgenuinely controverted.’ ” Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 20 0 6)). Local Rule 56 im poses guidelines for both the m ovant and the party opposing sum m ary judgm ent. A party m oving for sum m ary judgm ent m ust subm it factual assertions in “a separate, short, and concise statem ent of m aterial facts, set forth in num bered paragraphs.” Loc. Rule 56(b). A party opposing a m otion for sum m ary judgm ent m ust then “adm it, deny, or qualify the facts supporting the m otion for sum m ary judgm ent by reference to each num bered paragraph of the m oving party’s statem ent of facts.” Loc. Rule 56 (c). If they so wish, they m ay subm it a separate statem ent of facts which they believe are in controversy. Tim e and again, the First Circuit has highlighted that facts which are properly supported “shall be deem ed adm itted unless properly controverted.” Loc. Rule 56(e); P.R. Am . Ins. Co. v. Rivera-Vázquez, 60 3 F.3d 125, 130 (1st Cir. 20 10 ) and Colón, 869 F.Supp.2d at 226. Due to the im portance of this function to the sum m ary judgm ent process, “litigants ignore [those rules] at their peril.” Hernández, 486 F.3d at 7. Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 4 _______________________________ U N CON TESTED FACTS 1. Plaintiffs are nam ed insureds under Policy No. MPP-2280 791 issued by CSM, which runs from April 8, 20 17 to April 8, 20 18. D. Exhibit 3. 2. Insurance Policy No. MPP-2280 791 is subject to its lim its of liability, exclusions, term s and conditions. D. Exhibit 3. 3. Policy No. MPP-2280 791 issued by CSM states that “[n]o legal action can be brought against us unless there has been full com pliance with all the term s of this policy” and “[u]nder the Property Coverage Part the legal action m ust start within one year of the date of loss”. D. Exhibit I, p. 2, par. D. 4. Hurricane María struck the island of Puerto Rico on Septem ber 20 , 20 17. 5. On J anuary 9, 20 19, Plaintiffs filed their action for losses to their property in Vistam ar Marina resulting from the effects of hurricane María. Docket No. 1. 6. In Plaintiffs’ March 26, 20 19 Rule 26 Initial Disclosures letter, Plaintiffs’ Counsel stated that “[c]om m unications related to extrajudicial claim s under the CSM Policy m ade by Plaintiffs, or on behalf of them , shall be produced as soon as counsel receives them .” D. Exhibit 4. 7. At the Initial Settlem ent and Scheduling Conference held on April 12, 20 19, a deadline of April 26, 20 19 was established to supplem ent initial disclosures under Rule 26. Docket No. 17. 8. No extrajudicial claims were produced by Plaintiffs or on their behalf. D. Exhibits 5, 6 and 7. 9. On May 23, 20 19, counsel for Plaintiffs filed a m otion with the Court indicating that “[h]owever, plaintiffs’ counsel never received any such com m unications that Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 5 _______________________________ aren’t already in the possession of CSM as all of these were form s which were subm itted by and to CSM”. Docket No, 19, par. 3. 10 . No form 27.164 or com plaint regarding “bad faith com pliance” was filed with the Office of Insurance Com m issioner or received by CSM as a prerequisite for bringing civil action as required under Section 27.164 of Law No. 247-20 18. D. Exhibits 5, and 8. LEGAL AN ALYSIS Puerto Rico law governs this diversity case because Plaintiffs are residents of Florida. Erie R.R. Co. v. Tom pkins, 30 4 U.S. 64, 58 S.Ct. 817 (1938). Under Puerto Rico law, a contract is valid when it is “not contrary to law, m orals, or public order.” P.R. Laws Ann. tit. 31, § 3372. Article 1233 of the Puerto Rico Civil Code further provides that “when the term s of a contract are clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its stipulations shall be observed.” P.R. Laws Ann. tit. 31, § 3471. However, where a policy’s language is unclear, the Court m ust construe the provisions against the insurer. Great Am . Ins. Co. v. Riso, Inc., 479 F.3d 158, 162 (1st Cir. 20 0 7). “[A] term is considered ‘clear’ when it is sufficiently lucid to be understood to have one particular m eaning, without room for doubt.” Hopgood v. Merrill Lynch, Pierce, Fenner & Sm ith, 839 F.Supp. 98, 10 4 (D.P.R.1993). Am biguity is present in a policy if a word or phrase is reasonably susceptible to m ore than one construction. Riso, 479 F.3d at 163 (stating that “[t]he am biguities canon applies only where the policy can reasonably be read two ways, and the touchstone of coverage is expectation of protective insurance reasonably generated by the term s of the policy”). Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 6 _______________________________ In that sam e vein, insurance contracts generally are viewed as adhesion contracts under Puerto Rico law, requiring liberal construction in favor of the insured. Fajardo Shopping Ctr., S.E. v. Sun Alliance Ins. Co. of P.R., Inc., 167 F.3d 1, 7 (1st Cir. 1999) (citing Quiñones López v. Manzano Pozas, 141 D.P.R. 139, 155 (1996)). However, where a contract’s wording is explicit and its language unam biguous, the parties are bound by its clearly stated term s and conditions, with no room for further debate. Vulcan Tools of P.R. v. Makita U.S.A., Inc., 23 F.3d 564, 567 (1st Cir. 1994) (where no doubt or am biguity lies am idst the m eaning of a contract’s term s, “the court cannot dwell on the ‘alleged’ intent of the parties at the tim e they entered into the contract.” Finally, Article 1873 of the Civil Code of Puerto Rico provides that, “[p]rescription of actions is interrupted by their institution before the courts, by extrajudicial claim of the creditor, and by any act of acknowledgm ent of the debt by the debtor.” P.R. Laws Ann. tit. 31, § 530 3. When prescription is raised as an affirm ative defense, “the burden of proving that prescription has been interrupted shifts to the plaintiff”. Rodriguez v. Suzuki Motor Corp., 570 F.3d 40 2, 40 6 (1st Cir. 20 0 9) (quoting Tokyo Marine & Fire Ins. Co. v. Pérez & Cía. de P.R., Inc., 142 F.3d 1, 4 (1st Cir. 1998)). In the present case, Defendant avers that the contract between the parties clearly stipulates that a lawsuit m ust be com m enced within one year of the occurrence that caused the loss, which was not done here as the case was filed over 15 m onths after the hurricane hit Puerto Rico. The Insurance Policy in the case at bar specifically states the following: “Under the Property Coverage Part the legal action m ust start within one year of the date of loss”. See D. Exhibit I, p. 2, par. D. Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 7 _______________________________ In the alternative, as stated above, the one year prescriptive period to file the lawsuit m ay be interrupted by any of the three m ethods outlined in the Civil Code. 2 Defendant CSM avers this case is tim e-barred because no action was tim ely filed in any court, no extrajudicial claim was sent, and there has been no acknowledgem ent of the debt within the one year term established by the parties. Defendant CSM further asserts that Plaintiffs have failed to com ply with the requirem ents of Puerto Rico Law No. 247-20 18. This law, passed after Hurricane María, provides additional civil rem edies for the claim ants in the event of breaches and violations of certain provisions of the Insurance Code by an insurer. In section 27.164, it sets forth a prerequisite for bringing civil action under its provisions and requires a claim ant to fill out and file a specific form notifying the Com m issioner and the insurer of the alleged violation and/ or breach prior to filing the civil action before the court. This law was passed on Novem ber 27, 20 18 and went into effect im m ediately thereafter. P.R. Laws Ann. tit 26, § 1119. The Puerto Rico Civil Code requires parties to be bound by the contracts they sign, holding that “a contract exists from the m om ent one or m ore persons consent to bind him self or them selves, regarding another or others, to give som ething or to render som e service”. P.R. Laws Ann. tit. 31, § 3371. The Civil Code further states that “[c]ontracts are perfected by m ere consent, and from that tim e they are binding…”. P.R. Laws Ann. tit. 31, § 3375. Thus, the Court concludes that Plaintiffs were bound by the clause in the 2 Am endm ents were m ade to the Puerto Rico Insurance Code via Law 242 of Novem ber 27, 20 18 which explicitly state that a claim m ay be interrupted by any of the three m ethods outlined in the Civil Code in P.R. Laws Ann tit. 31, § 1873. Puerto Rico In surance Code Article 11.190 ; P.R. Laws Ann. tit. 26, § 1119 (6). See also Ruling Letter CN-20 19-246-D, issued by then Com m issioner of Insurance J avier Rivera Ríos dated J anuary 11, 20 19, explaining said am endm ent to the law. Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 8 _______________________________ insurance policy which m andated that any legal claim be com m enced within one year of the loss. Applying this holding to the facts of this lawsuit, the present case was filed on J anuary 9, 20 19, m ore than a year after hurricane María hit Puerto Rico. Plaintiffs therefore clearly failed to m eet the one-year contractual requirem ent for bringing this lawsuit. Thus, the question becom es whether Plaintiffs adequately and tim ely tolled the prescriptive period pursuant to the Puerto Rico Civil Code. Defendant CSM argues that Plaintiffs failed to toll the applicable prescriptive period. In support of this argum ent, Defendant CSM subm its unsworn statem ents from em ployees J osé Colón Sánchez, Idaris Rivera de J esús and Raisa Torres Torres, attesting to the fact that no claim s were filed with CSM by or on behalf of Plaintiffs. On the other hand, Plaintiffs argue that they tolled the prescriptive period, and the case is not tim e-barred. Nevertheless, they failed to subm it any evidence of the interruption of said term . Plaintiffs further adm it that they do not have copies of any written com m unications they sent to CSM because they are already in the possession of CSM. In support of this proposition, they offer their own, self-serving statem ents as to these facts, and further argue that they m ade “m any attem pts” to “m ake an extrajudicial claim ” regarding their loss. (Docket No. 33, Exhibits B and C). Plaintiffs also state that, when they were finally able to get a hold of som eone from CSM on the phone, they were “assured” they would be called back and never were, and after they finally m anaged to reach som eone over the telephone, CSM ignored “m eaningful com m unications” from them . Id. Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 9 _______________________________ The problem with Plaintiffs’ argum ent is that they have failed to evidence that an interruption was done. They proffer no evidence whatsoever to buttress their allegations that they tolled the period, and their attem pts lack specificity as to who they spoke with, on what date they spoke to a CSM representative, and what was said. No docum ents were filed with the Court, such as copies of the letters they allegedly sent, copies of the return receipt of a certified letter sent to CSM, for exam ple, or a claim num ber. Perhaps realizing their predicam ent, Plaintiffs proffer instead that CSM’s bad faith requires the Court to not consider CMS’s tim e-bar defense, citing to the case of De León v. Caparra Center, 99 TSPR 24. However, De León is instructive on another level, m ainly exactly what is required for a party to properly toll the prescriptive period. De León states that to tim ely toll a claim , the following elem ents m ust be present, to wit: “a) opportunity or tim eliness, which requires that the claim be m ade before the lim itation period runs out; b) standing, which requires that the claim be m ade by the holder of the right or party to the action whose lim itation period is sought to be tolled; c) adequacy of the m eans em ployed to m ake the claim ; and d) identity between the right claim ed and the right affected by the statute of lim itations. Id. Spanish Com m entator Diez-Picazo, on the other hand, states that “an extrajudicial claim does in fact include virtually any dem and form ulated by the creditor. The only lim itations are that the claim m ust be m ade by the holder of the substantive right (or his legal representative), ... it m ust be addressed to the debtor or passive subject of the right, not to a third party, ... and it m ust require or dem and the sam e conduct or relief ultim ately sought in the subsequent lawsuit”. Luis Diez-Picazo, La prescripción en el Código Civil at Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 10 _______________________________ 130 (Barcelona, Ed. Bosch 1964); see also Caraballo v. Hosp. Pavía Hato Rey, Inc., 377 F. Supp. 3d 99, 116 (D.P.R. 20 19). In other words, if nothing else, it requires that tim ely and adequate notice be made, by the correct party, to the correct party, and m ust detail the claim s and the relief requested. Although Puerto Rico law im poses no form al requirem ents on extrajudicial tolling, the Court has been unable to find any case where a telephone call can effectively toll a claim and Plaintiffs point to none in their docum ents. The case of Deutsche Bank Tr. Co. Am ericas v. Doral Fin. Corp., 841 F. Supp. 2d 593, 60 3 (D.P.R. 20 12) m entions in passing that Puerto Rico law perm its both written and verbal tolling, citing to Galib-Frangie v. El Vocero de Puerto Rico, 138 D.P.R. 560 (1995), for this proposition. Nonetheless, El Vocero case does not explicitly state this. Rather, the issue there was whether a letter served to toll the prescriptive period and focused on the specific contents of the letter. Deutsche Bank further stated that “courts in this jurisdiction favor a liberal approach to extrajudicial tolling, with the conservation of rights been regarded as the norm ”, and that “[i]nterruption of the lim itations period occurs with the “unm istakable m anifestation of one, who threatened with the loss of his right, expresses his wish not to lose it”. In Kery v. Am . Airlines, Inc., 931 F. Supp. 947, 953 (D.P.R. 1995), this district tackled the elem ents of the notice requirem ent and com pared the different local case holdings. Som e cases focused on whether the claim had been received instead of whether defendants had “actual knowledge” of the claim , and others m erely required that the claim arrive at its destiny, thus suggesting that at a m inim um , the notice m ust be m ade in writing. In fact, the Puerto Rico Suprem e Court has often stated that a notice m ust “be Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 11 _______________________________ received” by the debtor for tolling to occur. Zam brana-Maldonado, 129 D.P.R. 740 (1992); Hawayek v. A.F.F., 123 D.P.R. 526 (1989); Díaz de Diana v. A.J .A.S. Ins. Co., 110 D.P.R. 471 (1980 ). In the end, all caselaw leans toward the requirem ent that the prescriptive period must be interrupted in writing. Turning to the instant case, Defendants raised the tim e bar defense. Thus, the burden shifted to Plaintiffs to dem onstrate that they tim ely and adequately interrupted the prescriptive period. Although the Court agrees with Plaintiffs that claim s from dam ages suffered from hurricanes Irm a and María are subject to tolling as any regular claim would be, they have failed to bring forth evidence before the Court that they did interrupt the term . Tim e and again, Plaintiffs say that they interrupted the claim , yet all they proffer in support thereof is that they “attem pted” to m ake a claim , m ade som e phone calls, and nothing else. This does not conform to the requirem ents set forth in De León, or any of the Puerto Rico caselaw regarding tolling. Even if Defendant CSM had been tim ely notified, the m ethod used by Plaintiffs was still not adequate. A phone call with no other evidence, not even a claim num ber, is insufficient to toll the prescriptive period, and at sum m ary judgm ent m ore is needed than the affidavits filed by Plaintiffs. Adequate notice of the claim s, dam ages and relief sought m ust be m ade to the debtor. If it was done, as Plaintiffs allege, that evidence is not on the record. There are no docum ents or other proof to demonstrate that Plaintiffs adequately tolled the prescriptive period with an extrajudicial claim. Consequently, the Court m ust conclude that the claim s are tim e-barred. As an alternative, Plaintiffs proffer that the Court should not reward Defendant’s bad faith, because Defendant allegedly dragged its feet during this process and forced Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 12 _______________________________ them to sue. Thus, the tim e bar defense should be stricken pursuant to Puerto Rico Suprem e Court precedent in Velilla v. Pueblo Superm arkets, 111 D.P.R. 585 (1981). Nevertheless, the Pueblo case is distinguishable from the present case. In Pueblo, Pueblo itself referred the claim ant to the adjuster and was fully aware that the claim ant was trying to reach an agreem ent with said adjuster. It was not until a year afterwards, when the prescriptive period ran out, and after the com plaint had already been filed, that Pueblo cam e clean and revealed that it was not being represented by the adjuster after all and raised the tim e bar issue. The Puerto Rico Suprem e Court ultim ately penalized Pueblo for its bad faith in leading the claim ant on and struck its tim e bar defense. Thus, Pueblo had actual knowledge of the claim and referred the claim ant to the adjuster, who then engaged in negotiations to resolve the claim extrajudicially, thus causing the prescriptive period to run. That is not the situation in the case at bar where Plaintiffs failed to evidence that they notified or filed any sort of claim with CSM, and after that notice, that CSM engaged in bad faith. If m ore were needed, the Court also finds that Plaintiffs failed to com ply with the clear term s of Law 247 of Novem ber 27, 20 18, which requires a claim ant to file a written notice of the violations with the Com m issioner of Insurance, as well as its insurer, as a prerequisite to filing a civil action. 3 The insurer would then have sixty (60 ) days to resolve the claim before any civil action is filed. That prerequisite was not m et here, insofar as Plaintiffs candidly adm it that they did not file any form with the Com m issioner or CSM. 3 Interestingly, the requirem ent that notice be m ade in writing is also present in this recently passed amendm ent to the Insurance Code. Additionally, the notice m ust contain certain specific inform ation: citation to the statute being violated, factual basis for the claim s, nam e of parties involved, specific notice of the applicable policy language that covers the violation, and an indication that the notice is being filed “in order to perfect the right to seek a civil recourse authorized by this section”. Puerto Rico Insurance Code Article 27.164 (3)(a); P.R. Laws Ann. tit. 26 § 2716c. Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 13 _______________________________ (Docket No. 33, item 13). Instead, they proffer that the form was not notified by the Com m issioner until after the Plaintiffs had filed their com plaint. While it m ay be true that the Com m issioner’s Ruling Letter CN-20 19-246-D, which is an inform ative letter, was issued on J anuary 11, 20 19, the law is clear in that the law went into effect im m ediately after its approval, which was on Novem ber 27, 20 18. Plaintiffs’ argum ent is therefore inapposite. Finally, the Court notes that, as part of their opposition, Plaintiffs proffer as an uncontested fact that “the Com plaint was filed with the two-year term for post-Maria claim s” and point to the Com plaint as a citation in support of said statem ent. Allegations contained in a Com plaint are not evidence at sum m ary judgm ent 4 and the Court has been unable to find any legal support for this two-year term position. In sum , the Court finds Plaintiffs failed to file this lawsuit within the one-year period as required under the insurance policy. The Court further finds that Plaintiffs also failed to interrupt the prescriptive period for their claim s by any of the three m ethods provided under Puerto Rico law. A such, Plaintiffs’ cause of action is tim e-barred, and this case is DISMISSED WITH PREJ UDICE. CON CLU SION For all the aforem entioned reasons, Defendants’ Motion for Sum m ary J udgm ent (Docket No. 29) is hereby GRANTED. 4 “Mere allegations are not ‘evidence’” Zilberstein v. Kendall College, 286 Fed. Appx. 938, 940 (7th Cir. 20 0 8); Borges ex rel. S.M.B.W. v. Serrano-Isern, 60 5 F.3d 1, 3 (1st Cir. 20 10 ) (“m ere allegations are not entitled to weight in the sum m ary judgm ent calculus”); Tibbs v. City of Chicago, 469 F.3d 661, 663 fn. 2 (7th Cir. 20 0 6) (“the entire ‘Statement of Facts’ section of Tibbs’s appellate brief cites only to his am ended com plaint; mere allegations of a com plaint are not evidence”); Geshke v. Crocs, Inc., 740 F.3d 74, 78 (1st Cir. 20 14); (“unverified allegation s in a com plaint are not evidence”). Héctor Marcano-Martínez, et al. v. Cooperativa de Seguros Múltiples de P.R., et al. Opinion and Order Civil 19-10 23 (CVR) Page 14 _______________________________ J udgm ent will be entered accordingly. IT IS SO ORDERED. In San J uan, Puerto Rico, on this 6 th day of February 20 20 . S/ CAMILLE L. VELEZ-RIVE CAMILLE L. VELEZ RIVE UNITED STATES MAGISTRATE J UDGE
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