Noreen Wiscovitch Rentas, Chapter 7 Trustee for the Estate of PMC Marketing Corp v. Glaxo Smithkline Puerto Rico Inc

• Court: United States Bankruptcy Court, D. Puerto Rico
• Decided: August 28, 2018
• Docket: 12-00110
• Status: Unknown

Opinion

1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF PUERTO RICO 2

4 IN RE: CASE NO. 09-02048 BKT 5 6 PMC MARKETING CORP Chapter 7

7 Adversary No. 12-00110 8 9 Debtor(s)

10 NOREEN WISCOVITCH RENTAS, 11 CHAPTER 7 TRUSTEE FOR THE 12 ESTATE OF PMC MARKETING CORP 13 Plaintiff 14 vs. 15 GLAXO SMITHKLINE PUERTO RICO 16 INC 17 18 Defendant(s) FILED & ENTERED ON 08/28/2018

19 20

21 OPINION &ORDER 22 Defendant Glaxo Smithkline Puerto Rico, Inc.’s (hereinafter “Defendant”) Motion to Strike 23 Paragraph 4 from Plaintiff’s “Unsworn Declaration under Penalty of Perjury in Support of Motion 24 25 for Summary Judgment,” Exhibit C to DKT.NO 40 [Dkt. No. 47] is GRANTED, in part, without

1 1 prejudice. Defendant’s objection is twofold – first, the declaration fails to comply with Fed. R. Civ. 2 P. 56(c)(4) since it does not demonstrate affiants personal knowledge, or competency to testify as 3 required by Fed. R. Evid. 602; and, second the declaration is “suspect” or “bogus” because the 4 5 signature page is dated April 10, 2013, and the trustee’s residency and office address differ. 6 The Plaintiff, Chapter 7 Trustee (hereinafter “Trustee”) counters in her Response to “Motion 7 to Strike Paragraph 4 of Plaintiff’s “Unsworn Declaration under Penalty of Perjury in Support of 8 9 Motion for Summary Judgment”, Exhibit C DKT. No. 40” [Dkt. No. 54], that given the 10 circumstances of the case the Trustee’s statement is sufficient because “[a]t this time there are simply 11 not sufficient funds to allow the Defendant to receive more than it would under a distribution.”1 With 12 13 regards to the declaration being “suspect” or “bogus”, Trustee explains that she resides in Florida, 14 but her office is located in Puerto Rico. The date on the affidavit is due to the fact that multiple 15 declarations were prepared simultaneously as a result of the numerous adversaries filed in the related 16 17 legal case 09-02048 PMC Marketing, Corporation. The court deems this particular objection without 18 merit. The date and differing addresses used by the Trustee is at worst harmless error, and has no 19 bearing on this Order, nor on the adjudication of Plaintiff’s summary judgment and Defendant’s 20 21 cross motion. 22 The Plaintiff’s alleged failure to comply with Fed. R. Civ. P. 56(c)(4) is a different matter 23 altogether. Federal Rule of Civil Procedure 56(c)(4), made applicable to bankruptcy proceedings by 24 25 Fed. R. Bankr. P. 7056, states that “[a]n affidavit or declaration used to support or oppose a motion

1 Trustee’s response, Dkt. No. 54, page 2, paragraphs 5 and 6. 2 1 must be made on personal knowledge, set out facts that would be admissible in evidence, and show 2 that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). 3 Defendant contends that paragraph 4 of the submitted declaration is not based on the “personal 4 5 knowledge” mandate of Rule 56(c)(4). “Motions based upon ‘information and belief’ do not satisfy 6 the [Rule 56(c)(4)] standard.” Murphy v. Ford Motor Co., 170 F.R.D. 82, 84 (D.Mass.1997) (quoting 7 Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir.1991)). This court agrees. 8 9 Trustee’s statement in her declaration that “[it] is my understanding that the payments would 10 enable the distribution if the payments had not been made”,2 is not a statement of fact. Rather, it is 11 based on Trustee’s information and belief. This does not satisfy the summary judgment standard for 12 13 declarations supporting or opposing said motions. In re Financial Resources Network, Inc., 867 14 F.Supp.2d 153, 171 (D.Mass.2012). The case law in the First Circuit firmly establishes that a 15 summary judgment declaration which includes conclusory statements, not based upon personal 16 17 knowledge, will be stricken. In re Crentsil, 2017 WL 5760315 (D.Mass.2017); In re Donato Aponte 18 Navedo, 848 F.Supp.2d 171, 180 (D.P.R. 2012). 19 As such, paragraph 4 of the Trustee’s Unsworn Declaration under Penalty of Perjury in 20 21 Support of Motion for Summary Judgment attached to docket number 40 as exhibit C, is hereby 22 stricken. The court orders the Trustee to amend her declaration, if appropriate, to include the 23 liquidation analysis as of the petition date of the legal case pursuant to In re Inofin, Inc., 512 B.R. 24 25 19, 96 (Bankr.D.Mass.2014) (citing In re Tenna Corp., 801 F.2d 819, 821 (5th Cir. 1986)), within

2 Plaintiff’s Unsworn Declaration Under Penalty of Perjury in Support of Motion for Summary Judgment Dkt. No. 40, Exhibit C, page 1, paragraph 4. 3 1 || thirty (30) days. Clerk to follow up. SO ORDERED

4 San Juan, Puerto Rico, this 28th day of August, 2018. 5 COE ’ Brian K. Tester 8 U.S. Bankruptcy Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25