Mojica-Escobar v. Roca ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit

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          No. 96-1497



                               ABIGAIL MOJICA-ESCOBAR,



                                Plaintiff - Appellant,



                                          v.



                                 GASPAR ROCA, ET AL.,



                               Defendants - Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Selya, Circuit Judge.
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               Nicol s Nogueras, Jr. for appellant.
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               Juan  R.  Marchand-Quintero,  with  whom  Rivera  Cestero  &
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          Marchand Quintero was on brief for appellees.
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                                     May 7, 1997

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                    Per  Curiam.  Plaintiff-appellant contends that summary
Per  Curiam.
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          judgment was improvidently granted to the defendant newspaper, El



          Vocero de Puerto Rico,  and its publisher in this  defamation and



          invasion  of  privacy suit  governed by  Puerto  Rico law.   Upon



          careful  consideration  of  the  record,  appellate  briefs,  and



          arguments in this case,  we affirm the district court's  grant of



          summary  judgment to  the defendants  for substantially  the same



          reasons provided in its Opinion and Order.  See Mojica Escobar v.
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          Roca, 926 F. Supp. 30 (D. P.R. 1996).
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                    Regardless   of   whether   the  appellant's   spouse's



          political  prominence was  sufficient to  render the  appellant a



          public figure,  the falsity of the  alleged defamatory statements



          was  a necessary  element  appellant had  to  prove in  order  to



          sustain relief  under  Puerto Rico  defamation law.   See  Ayala-
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          Gerena  v. Bristol  Myers-Squibb Co.,  95 F.3d  86, 98  (1st Cir.
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          1996).  Appellant,  the non-movant, failed  to come forward  with



          anything  other than the most conclusory and vague allegations of



          falsity, and thus fell far short of establishing the existence of



          a "genuine  issue for trial"  with regard  to the falsity  of the



          newspaper articles, making summary judgment appropriate.  LeBlanc
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          v. Great American Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993).
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                    We  are  unmoved  by   appellant's  argument  that  the



          defendants' failure  to respond to a  discovery request prevented



          her  from coming  forward  with concrete  evidence  to rebut  the



          summary judgment motion.   The newspaper articles giving  rise to



          appellant's  defamation   claims   were  published   and   widely



          distributed, and it is impossible to imagine that for want of the



























          information   sought  in   her  unanswered   discovery  request,1



          appellant was unable to proffer any competent evidence tending to



          show that any of  defendants' statements were false, in  light of



          the fact  that, after  all, the  statements mainly concerned  the



          appellant's  (and  her  husband's)  finances  --  matters   which



          appellant should be in a fine position to address.   For example,



          appellant failed to come forward with  any proof that defendants'



          statements  regarding the financing of the purchase of a house in



          Orlando, Florida,  were false,  when it  is reasonable  to assume



          that  appellant possesses  records regarding  that purchase  -- a



          purchase which she claims she herself made.



                    With regard  to appellant's invasion  of privacy claim,



          we note that the right to privacy  as set forth in sections 1, 8,



          and 10  of  Article II  of  the Puerto  Rico Constitution  is  an



          important  right that  is  firmly safeguarded  under Puerto  Rico



          Supreme Court case law.  See,  e.g., Col n v. Romero Barcel , 112
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          D.P.R.  573  (1982) (finding  violation  of  privacy right  where



          photograph of  murdered relative  was publicized for  purposes of



          crime-prevention advertisement).   Nevertheless, as the  district



          court  has stated,  the  photograph of  appellant's house,  which



          appellant does not deny was taken  from a public area outside  of



          the house, does not constitute an actionable invasion of privacy,


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          1   In  the unanswered  discovery request  that is  reproduced at

          length  in  her   appellate  brief,  appellant  mainly   requests

          information as  to how  the defendant newspaper's  reporters went
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          about  obtaining  information  about   the  appellant.    In  the

          circumstances  of this  case,  however, such  information is  not

          needed  to  prove  the   falsity  of  the  newspaper's  published

          statements.



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          for  it  is  not  "unreasonably  intrusive."    Dopp  v.  Fairfax
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          Consultants, Ltd., 771 F. Supp. 494, 497 (D. P.R. 1990) (applying
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          Puerto Rico's constitutional privacy  guarantees).  There is also



          no legal  support for  appellant's claim  of invasion of  privacy



          based on the receipt of a single telephone call from an El Vocero



          reporter.



                    Affirmed.  Costs on appeal are granted to appellees.
Affirmed.
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