
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1662                           JOSE A. RIVERA-MARCANO, ET AL.,                               Plaintiffs, Appellants,                                          v.                           NORMEAT ROYAL DANE QUALITY A/S,                         (formerly NORMEAT-HOLDING & EXPORT),                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Hector Cuebas  Tanon with whom Vicente  & Cuebas was  on brief for            ____________________           _________________        appellants.            Ivan  R. Fernandez-Vallejo with whom Raymond E.  Morales and Brown            __________________________           ___________________     _____        Newsom & Cordova were on brief for appellee.        ________________                                 ____________________                                    July 13, 1993                                 ____________________                      CAMPBELL, Senior Circuit Judge.  The district court                                ____________________            granted summary judgment for appellee on appellants' claim of            malicious prosecution.  Finding no error, we affirm.                                          I.                                          I.                      Appellant  Jose A. Rivera Marcano ("Rivera") is the            sole  owner   and  operator   of  J.A.R.  Enterprises,   Inc.            ("J.A.R."), a brokerage and distribution firm in Puerto Rico.            Beginning in 1983, J.A.R.  served as the exclusive broker  in            Puerto  Rico  of the  luncheon meat  and other  food products            manufactured  by  appellee  Normeat  Royal  Dane Quality  A/S            ("Normeat"),  a  corporation  with  its  principal  place  of            business in Denmark.    Normeat normally  shipped merchandise            to J.A.R. on a credit basis.  J.A.R. would then transport the            merchandise  to  customers  in  Puerto  Rico  and  bill  them            directly.  After customers paid J.A.R.    usually by means of            checks  made payable to  either Normeat  or J.A.R.     J.A.R.            would  deposit the  money  in its  bank  account, keep  three            percent of  the amount as  a sales commission, and  remit the            balance  to Normeat.    Ordinarily,  J.A.R.  had  an  account            payable to Normeat with an outstanding balance of hundreds of            thousands of dollars.                        Sometime in 1987, Normeat's new management informed            Rivera that it would no longer extend credit for shipments to            J.A.R. and demanded immediate payment of J.A.R.'s outstanding            account balance of approximately $500,000.  Rivera  protested                                         -2-            the   change,  informing   Normeat   that   the  new   policy            contradicted  long-standing  practice and  created  financial            difficulties for  J.A.R.   Negotiations  between the  parties            failed to resolve the dispute, and Normeat notified Rivera in            October  1987 that  it would  cease  shipping merchandise  to            J.A.R.  and would  proceed to  collect all  sums  due through            appropriate legal channels.                      Two  years  later,  in June  1989,  Ken  Rasmussen,            deputy managing director  of Normeat, gave a  sworn statement            to  a  state prosecutor  in  the  Puerto  Rico Department  of            Justice  regarding Rivera's failure, as owner and operator of            J.A.R., to turn over one or more customer payments  allegedly            belonging to Normeat.  The  record contains neither a copy of            Rasmussen's sworn  statement nor  anything else  showing what            Rasmussen told the  prosecutors.  The Puerto  Rico Department            of  Justice  conducted an  investigation of  the accusations,            although the  extent of the  investigation is not  clear from            the record.                       In September 1989, a Department of Justice attorney            filed criminal charges  against Rivera in the  Superior Court            of  Puerto Rico, alleging  six separate counts  of aggravated            unlawful appropriation    in violation  of Article 166 of the            Puerto  Rico Penal  Code,  33  L.P.R.A.    42721     and  two                                            ____________________            1.  33 L.P.R.A.   4272 provides, in relevant part:                                         -3-            counts of  forgery of  documents    in  violation of  Article            271,  33 L.P.R.A.     45912     all  felonies.   The  charges            accused Rivera, in essence, of depositing in the J.A.R.  bank            account  six checks  written  by  customers  as  payment  for            Normeat  merchandise and not transferring the payments, minus                                            ____________________                           Any  person  committing  the offense                      described in  section 4271 of  this title                      [Unlawful    Appropriation]    shall   be                      punished by imprisonment for a fixed term                      of ten (10) years, whenever the following                      circumstances exist:                           . . .                           (b)  Unlawfully   appropriating  the                      property of another valued at two hundred                      dollars or more; . . . .                 33  L.P.R.A.     4271,  referred  to  in  section  4272,            provides:                           Any     person     who    unlawfully                      appropriates,    without   violence    or                      intimidation, personal property belonging                      to another person,  shall be punished  by                      imprisonment for a term not exceeding six                      months, a fine not exceeding five hundred                      dollars, the  penalty of  restitution, or                      any   combination    thereof,   in    the                      discretion of the court.            2.  33 L.P.R.A.   4591 provides in relevant part:                           Any person  who, with the  intent to                      defraud  another,  falsely draws  up,  in                      whole or in part,  a document, instrument                      or   writ   through  which   any   right,                      obligation   or   interest   is  created,                      transferred,   terminated   or  otherwise                      affected,   or   who    falsely   alters,                      counterfeits,  suppresses  or  destroys a                      genuine one in whole or in part, shall be                      punished by imprisonment for a fixed term                      of nine (9) years. . . .                                         -4-            J.A.R.'s sales  commission, to  Normeat.3   A Superior  Court            judge found  probable cause  to issue  an arrest  warrant for            Rivera on all  eight charges, and referred the  case to three            different courts for preliminary hearings because the alleged            crimes  took place in  three different jurisdictions.   Three            magistrates  separately  considered  the  charges  and  found            probable  cause to  proceed  to  trial on  six  of the  eight            charges.  One aggravated unlawful appropriation count and one            forgery count, both relating to a November 12, 1986 check for            $59,274.12 from a company called Mister Price, were dismissed            for lack of probable cause.4                                            ____________________            3.  The six counts of aggravated  unlawful appropriation were            based on the following transactions:                   1)  a November 12, 1986 check for $59,274.12 from Mister            Price, Division  of Belca Equipment  Corporation, payable  to            Normeat;                  2) a November 22, 1986 check for  $60,557.41 from Pueblo            International, Inc. payable to J.A.R.;                 3) a  December 29, 1986 check for $61,337.16 from Mister            Price payable to Normeat;                 4) a February  10, 1987 check  for $30,645.15 from  Alba            Imports Corporation payable to J.A.R.;                 5) a  March  24, 1987  check  for $58,674.96  from  Alba            Imports payable to J.A.R.; and,                  6)  an April  22, 1987  check for  $30,646.67 from  Alba            Imports payable to J.A.R.            The two counts of forgery  were based on the two  checks made            payable to Normeat.            4.  In the district  court, appellants submitted copies  of a            cancelled  check purporting to  show that J.A.R.  did in fact            pay Normeat $57,495.90  for the Mister  Price shipment a  few            months  after  receiving  the  $59,274.12  check from  Mister            Price.                                         -5-                      The remaining counts were consolidated for trial at            the  San Juan Superior Court.  After  one day of testimony on            February  21, 1990, the  main prosecution witness, Rasmussen,            left  Puerto  Rico for  Denmark  and  never returned  to  the            island.   The prosecutor moved for  dismissal of the criminal            charges,  and the court  granted dismissal with  prejudice on            February  26,  1990.    The   dismissal  is  now  final   and            unappealable.                      Rivera,  along  with his  wife  and  their conjugal            partnership, brought this diversity action against Normeat on            November 26,  1990, in the  United States District  Court for            the  District of  Puerto Rico,  seeking  damages pursuant  to            Puerto Rico tort law for the alleged malicious prosecution of            Rivera by Normeat.   Normeat moved to dismiss  for failure to            state a claim.  See Fed. R. Civ. P. 12(b)(6).  Because it had                            ___            numerous exhibits before  it from both parties,  the district            court  treated Normeat's motion  as one for  summary judgment            and granted  it on April 21, 1992.   See Fed. R.  Civ. P. 56.                                                 ___            Appellants now appeal from that final judgment.5                                         II.                                         II.                      We review summary judgment  grants de novo, reading                                                         __ ____            the  record in  the  light most  favorable  to the  nonmoving            party.  August v. Offices  Unlimited, Inc., 981 F.2d 576, 580                    ______    ________________________                                            ____________________            5.  The district court had diversity jurisdiction pursuant to            28 U.S.C.   1332(a)(2).  This court has jurisdiction pursuant            to 28 U.S.C.   1291.                                         -6-            (1st Cir. 1992).   To demonstrate the existence  of a genuine            issue  of material fact,  plaintiffs must point  to concrete,            admissible  evidence.  Id.   Mere allegations,  or conjecture                                   ___            unsupported in the record, are insufficient.  Id.                                                          ___                      Under   Puerto  Rico  law,  a  plaintiff,  such  as            appellant, alleging malicious prosecution bears the burden of            proof.   Vince v. Posadas de  Puerto Rico S.A.,  683 F. Supp.                     _____    ____________________________            312, 315  (D.P.R. 1988);  Par s v. Ruiz,  19 P.R.R.  323, 327                                      _____    ____            (1913).  The four essential elements of the tort are: (1) the            criminal   action  was  initiated   and  instigated   by  the            defendant; (2) the criminal action terminated in favor of the            plaintiffs; (3)  the  defendant  initiated  the  action  with            malice and without probable cause;  and (4) as a consequence,            the  plaintiffs suffered damages.  Ocasio  v. Rosa, 88 J.T.S.                                               ______     ____            42 (P.R. 1988); Par s,  19 P.R.R. at 327.   The third element                            _____            may  also be  described  as  two  separate  elements  because            plaintiffs  must  show  both that  the  defendant  acted with                                    ____            malice and that he acted  without probable cause.  Vince, 683                   ___                                         _____            F.  Supp. at 315  & n.4.   Failure to prove  any element bars            recovery.  Id.  at 315-16; Torres v. Marcano,  68 P.R.R. 813,                       ___             ______    _______            817 (1948); Par s, 19 P.R.R. at 332.                        _____                      The  district court  granted  summary judgment  for            appellee Normeat  on the ground  that nothing  in the  record            supports a finding that Normeat acted without probable cause.            "[P]robable  cause for  imputing the  commission  of a  crime                                         -7-            consists  in the  fact  that  there  are  reasonable  grounds            therefor, supported by circumstances which  are sufficient to            warrant a reasonable belief that the defendant is the  author            of  the crime."    Jim nez  v. S nchez,  76  P.R.R. 347,  352                               _______     _______            (1954); see Vince,  683 F. Supp. at 316; Par s,  19 P.R.R. at                    ___ _____                        _____            331.   Probable cause does not  depend on the actual guilt or            innocence  of  the   accused,  but  simply  on   whether  the            circumstances  are "sufficient  to produce  in the mind  of a            reasonable  person  the belief  that the  charge he  makes is            true."  Par s, 19 P.R.R. at 331.                    _____                      In  respect  to  five  of  the  six   transactions,            appellants pointed to  no evidence tending to  establish that            Normeat   lacked   probable   cause  to   accuse   Rivera  of            misappropriating  and forging the alleged checks.  The record            indicates  that  Rivera  received   those  five  checks  from            customers and deposited them in the J.A.R.  bank account, but            nothing shows that he  forwarded the paid amounts, minus  his            commission, to Normeat.   In addition, the record  shows that            the Department of  Justice attorney, after  an investigation,            found probable cause  sufficient to file the  charges against            Rivera, and a  Superior Court judge  found probable cause  on            all eight charges  sufficient to issue an  arrest warrant for            Rivera.  Three different magistrates, in separate preliminary            hearings, found that  evidence on the counts related to these            five transactions was sufficient to  send the case to  trial.                                         -8-            Because  appellants  failed  to  produce  any  evidence  that            Normeat  lacked probable cause  to prosecute Rivera  based on            those five checks, appellants would not be able to maintain a            claim for malicious prosecution based on those charges.                      Appellants  instead   focus  on  the   two  charges            dismissed after  a preliminary  hearing before a  magistrate,            both of  which were  related to the  November 12,  1986 check            from the  Mister Price company  in the amount  of $59,274.12.            Appellants argue that Normeat lacked probable cause to accuse            Rivera of misappropriating and forging this particular check.            The  record contains  a  cancelled check  purportedly showing            that  on February 13,  1987, J.A.R. paid  Normeat $57,495.90,            the balance due for the shipment of goods to the Mister Price            company, and  a sworn  statement from  Rivera asserting  that            J.A.R. paid Normeat for the Mister Price shipment.                        Whether and in  what circumstances a plaintiff  may            maintain   a  malicious  prosecution   action  based  on  one            groundless accusation, when probable cause existed for one or            more  other  accusations made  concurrently,  has never  been            addressed  by  the  Puerto  Rico Supreme  Court.    In  other            jurisdictions,  courts have  permitted  such  actions if  the            charges  stem from  different sets  of facts  and if  all the            other  elements  of   a  malicious   prosecution  claim   are            fulfilled.  See, e.g.,  Posr v. Doherty, 944 F.2d 91, 100 (2d                        ___  ____   ____    _______            Cir. 1991)  (holding that plaintiff  could maintain malicious                                         -9-            prosecution claim  based on  groundless charges  of resisting            arrest  and  assault  even  if  probable  cause  existed  for            disorderly conduct charge); Singleton v. Perry, 289 P.2d 794,                                        _________    _____            799-800   (Cal.  1955)   ("[P]laintiff,  having   shown  that            defendant maliciously  joined an  unjustified  charge with  a            justified charge, does not have the further burden of showing            that  her   damage  was  specifically  attributable   to  the            malicious prosecution as opposed to the prosecution which the            jury found was not malicious."); see also DeLaurentis v. City                                             ________ ___________    ____            of  New Haven, 597  A.2d 807, 821-22  (Conn. 1991) (reviewing            _____________            cases).  But see Ruff v. Eckerds Drugs, Inc., 220 S.E.2d 649,                     _______ ____    ___________________            651-52  (S.C. 1975)  ("[A]n action for  malicious prosecution            should not be  available, where, as here,  both charges arise            out of the same set of circumstances.").                      In Rivera's case, even if he has presented evidence            sufficient  to raise a  genuine issue of  fact concerning the            lack of  probable cause  for the two  charges related  to the            November  12,  1986  check from  Mister  Price,  there is  no            evidence  to support the first essential element of malicious            prosecution: to  wit, that Normeat,  as opposed to  the state                         __  ___            prosecutors, initiated  and instigated  these two  particular            charges.6   See  Raldiris v.  Levitt &  Sons of  Puerto Rico,                        ___  ________     _______________________________                                            ____________________            6.  The   district  court  did  not  consider  the  issue  of            instigation of the prosecution, but  we are free to affirm on            any  independently sufficient ground.   Aunyx Corp.  v. Canon                                                    ___________     _____            U.S.A., Inc.,  978 F.2d 3,  6 (1st Cir. 1992),  cert. denied,            ____________                                    ____________            113 S. Ct. 1416 (1993).                                         -10-            Inc.,  103 D.P.R.  778, 3  P.R.  Sup. Ct.  Off'l Translations            ____            1087, 1091-92 (1975).  As  discussed above, under Puerto Rico            law a malicious prosecution plaintiff must show that:                      [the] defendant was actively instrumental                      in  the  initiation  of  the  prosecution                      through some affirmative action by way of                      advice,   petition,    encouragement   or                      pressure.   To furnish  information to  a                      prosecuting attorney  does not  by itself                      constitute    an    instigation,    since                      generally  in those  cases the  efficient                      cause   of   the    initiation   of   the                      prosecution has  been the  initiative and                      decision of the  prosecuting attorney, in                      the  exercise  of his  discretion,  after                      having  carried  out   the  corresponding                      investigation.            Jim nez v. S nchez, 76 P.R.R. at 351.  Where  the decision to            _______    _______            file charges is within  the discretion of the prosecutor,  it            is  not  sufficient for  plaintiffs merely  to show  that the            defendant  gave  incomplete  information to  the  prosecutor.            Plaintiffs must show  that the incomplete  information caused            or  "compelled" the  government authorities  to  file charges            against the plaintiff.  Torres  v. Marcano, 68 P.R.R. at 818-                                    ______     _______            20.  Unless the defendant is shown to have knowingly provided            false  information to the  officials, "[t]he exercise  of the            officer's discretion makes the initiation of  the prosecution            his   own  and  protects  from  liability  the  person  whose            information or accusation has led the officer to initiate the            proceedings."  Id.  at 819 (quoting 3 Restatement  (First) of                           ___                    _______________________            Torts   653(2), cmt.).            _____                                         -11-                      The record  contains no evidence that  Rasmussen or            other Normeat  officials specifically instigated  the charges            based on the November 12, 1986 check, nor  that they were the            source  of incomplete  or  false  information  to  the  state            officials  on that  item.   The  record  indicates only  that            Rasmussen gave a sworn statement to the prosecuting attorneys            regarding  the failure  of J.A.R.  to turn  over one  or more            payments due to  Normeat, a perfectly true  statement insofar            as anything in the record shows.  No actual copy of the sworn            statement  appears in the  record, nor is  there an affidavit            from  Rasmussen  or  a  prosecutor  indicating  exactly  what            Rasmussen  told the prosecutors.  Appellants concede that the            prosecutors conducted  an investigation of  J.A.R.'s dealings            with  Normeat and that a Department  of Justice attorney, not            Rasmussen,  filed the formal charges in court against Rivera.            It  is  conceivable  that  the  two  charges related  to  the            November 12, 1986 check resulted from oversights or errors by            personnel within the  Department of Justice rather  than from            specific   accusations  relative   to  that  check   made  by            Rasmussen.  Appellants bear the  burden of proof on the issue            but  have put  forward  no  concrete  evidence to  show  that            Rasmussen gave  inaccurate or  incomplete information  to the            authorities about  this check nor  that he coerced  them into            filing the charges in question against Rivera.  Consequently,            even if appellants raised a  genuine issue regarding lack  of                                         -12-            probable cause for the charges based on the November 12, 1986            check,  appellants failed  to  raise  a  genuine  issue  over            whether  Normeat initiated or  instigated those  two charges.            Appellants would be  unable at trial to meet  their burden of            proof  on an essential element of their malicious prosecution            claim.7                      Affirmed.  Costs to appellee.                      ________   _________________                                            ____________________            7.  We  have considered  and find  no  merit in  the rest  of            appellants' arguments.                                          -13-
