United States District Court, D. Vermont
HOUSTON CASUALTY COMPANY, as assignee and/or subrogee of Agri-Mark, Inc., Plaintiff,
RONALD J. RUP, JR., Defendant.
MEMORANDUM AND ORDER (DOC. 18)
Garvan Murtha United States District Judge.
Houston Casualty Company, as assignee and/or subrogee of
Agri-Mark, Inc., asserts claims for conversion, unjust
enrichment and constructive trust, fraud, money had and
received, and equitable subrogation, seeking damages of at
least $1, 550, 925, against Defendant Ronald J. Rup, Jr., an
inmate proceeding pro se. (Doc. 1.) Defendant answered the
complaint. (Doc. 4.) Plaintiff now moves for summary judgment
in the amount of $1, 522, 935. (Docs. 18, 18-3 at 2.) The
motion is unopposed; Defendant Rup has filed no response by
the filing deadline of July 6, 2017, or to date.
employed by Agri-Mark, Inc. as Manager of IT Infrastructure,
Rup ordered extra equipment, approved payment, and then sold
the equipment to third parties for personal gain. Plaintiff
paid Agri-Mark's claim for the theft of its property in
the total amount of $1, 538, 425. Agri-Mark assigned all its
rights to recover from Rup to Plaintiff.
November 5, 2015, Rup entered a guilty plea before this Court
to one count of wire fraud, in violation of 18 U.S.C. §
1343. On July 14, 2016, the Court sentenced Rup to a term of
imprisonment, and ordered him to forfeit $1, 000, 000 in the
form of a personal money judgment and to pay restitution in
the amount of $1, 550, 925: $12, 500 to Agri-Mark,
representing its deductibles; and $1, 538, 425 to Plaintiff,
representing its payments to Agri-Mark. Plaintiff has
received partial restitution in the amount of $15, 490,
leaving the remaining amount due $1, 522, 935.
Standard of Review
judgment is appropriate only where the parties'
submissions show that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56. The Court must resolve
ambiguities and draw inferences in favor of the non-moving
party and decide whether a rational juror could decide in
favor of that party under applicable law. Scott v.
Harris, 550 U.S. 372, 378 (2007); Salahuddin v.
Goord, 467 F.3d 263, 272 (2d Cir. 2006) (citation
omitted). A material fact is one that “might affect the
outcome of the suit.” Roe v. City of
Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). To defeat
summary judgment, a party must “do more than simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). There must be
“evidence on which the jury could reasonably
find” for the opposing party. Jeffreys v. City of
New York, 426 F.3d 549, 553-54 (2d Cir. 2005) (internal
quotation marks and citation omitted).
court's function is not to resolve disputed issues of
fact but only to determine whether there is a genuine issue
of material fact to be tried. See, e.g.,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d
Cir. 1996). “If, as to the issue on which summary
judgment is sought, there is any evidence in the record from
which a reasonable inference could be drawn in favor of the
opposing party, summary judgment is improper.”
Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir. 1997)
(internal quotation marks and citation omitted).
Defendant Rup has not responded to the Plaintiff's
motion. Rule 56, however, requires the Court to examine and
verify if the Plaintiff's submission suffices to support
an entry of judgment. Vt. Teddy Bear v. 1-800 Beargram
Co., 373 F.3d 241, 244 (2d Cir. 2004). Especially
because Rup is pro se, the Court must afford him
“special solicitude” before granting the motion
for summary judgment. Ruotolo v. IRS, 28 F.3d 6, 8
(2d Cir. 1994). “Rule 56 does not allow district courts
to automatically grant summary judgment on a claim simply
because the summary judgment motion . . . is
unopposed.” Jackson v. Fed. Express, 766 F.3d
189, 194 (2d Cir. 2014).
criminal conviction constitutes estoppel in a subsequent
civil proceeding as to the matters determined by the judgment
in the criminal case. United States v. Podell, 572
F.2d 31, 35 (2d Cir. 1978); Gelb v. Royal Globe Ins.
Co., 798 F.2d 38, 42-43 (2d Cir. 1986). See also
Crum & Forster Ins. Co. v. Goodmark Indus., Inc.,
488 F.Supp.2d 241, (E.D.N.Y. 2007) (“[U]nder federal
law, a party other than the government may assert collateral
estoppel based on a criminal conviction.” (internal
quotation marks and citation omitted)).
estoppel applies if: (1) the issues in both proceedings must
be identical; (2) the issue in the prior proceeding must have
been actually litigated and actually decided; (3) there must
have been full and fair opportunity for litigation in the
prior proceedings; and (4) the issue previously litigated
must have been necessary to support a valid and final
judgment on the merits. Gelb, 798 F.2d at 44.
pled guilty to a scheme to defraud Agri-Mark, was convicted,
and ordered to pay restitution to Agri-Mark, which has been
assigned to Plaintiff. Plaintiff now seeks a civil judgment
ordering Rup to pay the restitution he is obligated to pay
under the criminal judgment. The Court finds Rup is
collaterally estopped from asserting he is not liable for the
money owed to Plaintiff based on his criminal conviction.
Accordingly, there ...