United States District Court, M.D. Florida, Jacksonville Division
ABDULLAH M. AL-RAYES, et al., Plaintiffs,
ERIKA M. WILLINGHAM, individually and as Trustee of the Erika M. Willingham Trust, Defendant.
MORALES HOWARD, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Defendant Erika M.
Willingham's Motion for Summary Judgment (Doc. No. 153;
Motion), filed on June 27, 2017. On July 11, 2017, Plaintiffs
filed their Opposition to Defendant Erika M. Willingham's
Renewed Motion for Summary Judgment (Doc. No. 157; Response).
With leave of Court, see Endorsed Order (Doc. No.
162), Erika Willingham filed her Reply to Plaintiffs'
Response in Opposition to Defendant's Renewed Motion for
Summary Judgment (Doc. No. 163; Reply) on July 31, 2017, and
Plaintiffs filed their Sur-Reply in Further Opposition to
Defendant Erika M. Willingham's Renewed Motion for
Summary Judgment (Doc. No. 164; Sur-Reply) on August 11,
2017. Accordingly, this matter is ripe for
action arises from Plaintiffs' as-yet unsuccessful
efforts to collect on a Consent Judgment entered against
Defendant Erika Willingham's husband, Ben Willingham, in
2007. See Third Amended Complaint and Demand for
Jury Trial (Doc. No. 103; TAC) ¶ 1. Erika Willingham is
a dual citizen of Switzerland and the United States currently
residing in Jacksonville, Florida. See id. ¶
15; Defendant Erika M. Willingham's Answer and
Affirmative Defenses to Plaintiffs' Third Amended
Complaint (Doc. No. 152; Answer) ¶ 3. She has been
married to Ben Willingham, who is not a party to this action,
for approximately thirty-five years. See TAC ¶
15; Answer ¶ 3. Plaintiff Abdullah M. Al-Rayes
(Al-Rayes) is a citizen of Saudi Arabia currently residing in
Switzerland. See TAC ¶ 9. Al-Rayes brings this
action together with various corporate entities under his
control (collectively, Creditors).
1994 to 1999, Creditors purchased nine properties through Ben
Willingham and several of his corporate entities.
See Kranjac Decl. ¶ 5. In 2005, an officer of
the Plaintiff corporations, Mario M. Kranjac, uncovered what
he believed to be a fraudulent scheme perpetrated by Ben
Willingham and his companies in connection with these
transactions. Id. ¶¶ 1, 9. As a result, on
April 20, 2006, Creditors filed a lawsuit against Ben
Willingham and others, asserting various fraud-based claims
related to the purchases. See id. ¶ 32; see
also Al-Rayes v. Willingham, No. 06-cv-362-J-34JRK, ECF
No. 1 (M.D. Fla. Apr. 20, 2006) (complaint). The parties
resolved this 2006 lawsuit on March 15, 2007, via the entry
of a consent judgment whereby, without admitting liability,
Ben Willingham agreed to pay Creditors the amount of $25,
707, 605. See Kranjac Decl. ¶ 33, Ex. 13:
Consent Judgment (Doc. No. 158-13; Consent Judgment).
However, since that time, Creditors have been able to collect
only $39, 943.81 from Ben Willingham. See id. ¶
156. As a result of their stymied collection efforts,
Creditors bring the instant lawsuit in which they contend
that Erika Willingham has assisted her husband in
orchestrating and carrying out a different fraudulent scheme,
this one designed “to conceal [Ben Willingham's]
assets in order to hinder, delay, or impede Plaintiffs'
ability” to collect on the amount due under the Consent
Judgment. TAC ¶ 1.
January 9, 2008, Creditors deposed Ben Willingham for the
purpose of obtaining information about his assets in
furtherance of their efforts to collect on the Consent
Judgment. See Kranjac Decl. ¶ 35, Ex. 14:
January 9, 2008 Deposition of Ben H. Willingham, Jr. (Doc.
No. 158-14; 2008 BW Dep.). During this deposition, Ben
Willingham disclosed the existence of three USAA Federal
Savings Bank accounts (USAA Accounts) which he jointly owned
with Erika Willingham. See 2008 BW Dep. at
21:22-22:17. He further testified that: (1) he did not have
any accounts or assets in Switzerland, where Erika Willingham
is from and where the Couple previously resided; (2) Erika
Willingham possessed at least one Swiss bank account over
which she had sole control; and (3) Erika Willingham made
regular wire transfers from that account to the USAA Accounts
to help pay for the Couple's living expenses. See
id. at 47:23-48:1; 60:21-61:16; 68:8-69:22.
that year, on May 29, 2008, Creditors deposed Erika
Willingham. See Kranjac Decl. ¶ 39, Ex. 15: May
29, 2008 Deposition of Erika Willingham (Doc. No. 158-15;
2008 EW Dep.). During this deposition, Erika Willingham
testified that she was unaware of any accounts aside from the
USAA Accounts, and that she did not have any other bank
accounts in her individual name. See 2008 EW Dep. at
17:24-18:1; 33:16-19. At the same time, she noted that her
husband was primarily responsible for managing the
Couple's finances and paying the bills, including
mortgage payments. See id. at 8:6-12; 21:3-14. As
part of this discussion, Creditors' counsel inquired as
to whether Erika Willingham owned the Couple's
then-current home (the Fair Lane Drive Property), as well as
whether the mortgage on the Fair Lane Drive Property was in
her name alone. See id. at 6:15-24; 7:21-8:5. She
responded that, although the house was in her name alone, she
could only “guess” that the mortgage was as well.
October 27, 2010, Creditors deposed Ben Willingham for the
second time as part of their efforts to collect on the
Consent Judgment. See Kranjac Decl. ¶ 47, Ex.
19: October 27, 2010 Deposition of Ben Hill Willingham (Doc.
No. 158-19; 2010 BW Dep.). During this deposition, consistent
with his prior testimony, Ben Willingham testified that he
did not have any accounts in his name alone, and that his
wife did not have any undisclosed checking or savings
accounts, save for a trust account created for her by her
parents. See 2010 BW Dep. at 15:9-17:22; 25:6-16;
26:17-21. He also testified that, although he was certain his
wife was on the mortgage for the Fair Lane Drive Property, he
did not know if he countersigned it. See id. at
48:24-49:2. However, a review of the mortgage agreement for
the Fair Lane Drive property reflects that on May 3, 1999,
eight years before entry of the Consent Judgment, both Ben
and Erika Willingham signed the document. See
Kranjac Decl. ¶ 110, Ex. 45: Mortgage Agreement (Doc.
February 17, 2011, Ben Willingham filed a Chapter 7
bankruptcy action (Bankruptcy Action) in the United States
Bankruptcy Court in and for the Middle District of Florida,
Jacksonville Division (Bankruptcy Court). Id. ¶
49. In another attempt to collect on the Consent Judgment,
Creditors initiated an adversary proceeding (Adversary
Proceeding) in the Bankruptcy Action on May 23, 2011.
Id. ¶ 50. On December 8, 2011, Creditors
deposed Erika Willingham in connection with the Adversary
Proceeding. Id. ¶ 51, Ex. 20: December 8, 2011
Deposition of Erika Willingham (Doc. No. 158-20; 2011 EW
Dep.). During her deposition, Erika Willingham testified that
she did not have any funds in Switzerland, and that the only
transfers made from Switzerland to the USAA Accounts were her
and her husband's Swiss-equivalent Social Security
payments. See 2011 EW Dep. at 18:1-20:2. When
confronted with records reflecting wire transfers to the USAA
Account from an account in Switzerland, she testified that
she was unaware of the account, and that she had given her
husband complete control over the money she inherited from
her parents. See id. at 21:10-25:14 (“Q: Did
you even know that this account existed? // A: Which account?
Q: That is transferring money into USAA. // A. No.” . .
. “A: And he - I left everything to Ben because I trust
him. // Q. So you gave him control over the account in
Switzerland? // A. Yes. Always.”). She also maintained
that her husband managed the Couple's finances and that
she did not actually know how many bank accounts she had.
See id. at 22:5-26:8 (“Q: Do you have any idea
how many accounts you have? // A: No.”).
conjunction with the Bankruptcy Action, on August 8, 2012,
Ben Willingham submitted a breakdown of the Couple's
assets and liabilities to the Bankruptcy Court. See
Kranjac Decl., Ex. 21: Summary of Schedules & Schedules
(Doc. No. 158-21; Schedules). Notably, Ben Willingham signed
a declaration, under penalty of perjury, as to the accuracy
of the Schedules, but the document is not signed by his wife.
See Schedules at 6. In the Schedules, Ben Willingham
represented that the Couple had no significant assets and a
combined average monthly income of $4, 062. See
Kranjac Decl. ¶ 55; Schedules. However, one week later,
on August 15, 2012, the Couple “submitted an
application to the Naval Continuing Care Retirement
Foundation, Inc. (NCCRF) for a residence at a retirement
community [located in Jacksonville, Florida, ] named Fleet
Landing[, ]” in which they represented that they owned
real estate valued at $750, 000, investments valued at $395,
000, and had approximately $40, 000 in cash, among other
things. Id. ¶¶ 57-58, Ex. 22: Fleet
Landing Confidential Data Application (Doc. No. 158-22;
Application). Then, on October 22, 2012, without
informing the Bankruptcy Court, the Couple formally
“entered into a contract with NCCRF for a residence at
Fleet Landing” and “agreed to pay an entrance fee
of $254, 962.50 for their residence[, ]” as well as
monthly fees in the amount of $4, 611. Id.
¶¶ 64-67, Ex. 27: Fleet Landing Residency Contract
(Doc. No. 158-27; Residency Contract). Both Ben and
Erika Willingham signed the Application and the Residency
Contract. See Application at 4; Residency Contract
on May 7, 2012, the trustee in the Bankruptcy Action
(Bankruptcy Trustee) filed an application to employ a special
attorney (Kranjac Decl., Ex. 29: Application for Authority to
Employ Nina M. LeFleur as Special Attorney (Doc. No. 158-29;
LeFleur Application)), stating that he was in need of
“special counsel to prosecute avoidable fraudulent
transfers, ” among other things. See Kranjac
Decl. ¶¶ 71-72 (citing LeFleur Application at 1).
Soon after, on May 25, 2012, the Bankruptcy Trustee filed a
motion seeking turnover of Erika Willingham's Swiss
accounts, which based on her 2011 deposition testimony, the
Bankruptcy Trustee contended were part of Ben
Willingham's bankruptcy estate given that they were
actually “owned and controlled by [him].” See
Id. ¶ 74, Ex. 30: Trustee's Motion for Turnover
of Property of the Estate (Doc. No. 158-30; First Turnover
Motion) at 2. After conducting an evidentiary hearing, on
February 15, 2013, the Bankruptcy Court issued its Findings
of Fact and Conclusions of Law on the First Turnover Motion.
See Kranjac Decl., Ex. 31: Findings of Fact and
Conclusions of Law (Doc. No. 158-31; Findings on First
Turnover Motion). In its Findings, the Bankruptcy Court
determined that between December 13, 2007, and November 22,
2010, approximately 68 wire transfers were made from a Swiss
bank account, titled solely in Erika Willingham's name,
into a joint USAA checking account owned by the Couple.
See Findings on First Turnover Motion at 2. Notably,
the Bankruptcy Court observed that the Couple gave
contradictory testimony with respect to these wire transfers
with Ben Willingham testifying that Erika Willingham managed
the accounts herself, would tell him what transfers to make,
and has talked to the bank on the phone, and Erika Willingham
denying all knowledge of the existence of the Swiss account
or the wire transfers. See id. at 2-5.
Bankruptcy Court found that it was “unable to determine
whether the proceeds of the Swiss Account” are property
of Ben Willingham's bankruptcy estate. See id.
at 6. However, the Bankruptcy Court did find good cause to
order Erika Willingham to produce records relating to
“the Swiss Account” as relevant and indispensable
to the Trustee's claim. See id. at 6-7. Shortly
thereafter, Creditors received account records from the
Couple as well as directly from various Swiss banks.
See Kranjac Decl. ¶¶ 82-83. The records
revealed a large number of wire transfers of Ben
Willingham's “salary, social security, and health
insurance payments, ” into Erika Willingham's Swiss
Account (the PostFinance Account) between 2002 and 2013.
See id. ¶¶ 85-87, Ex. 32: 2002-2005
PostFinance Account Statements (Doc. No. 158-32) and Ex. 33:
2006-2016 PostFinance Account Statements (Doc. No. 158-33).
The records also showed transfers into the PostFinance
Account from other Swiss accounts. See id.
¶¶ 88-89, Exs. 32-33.
April 24, 2014, during the pendency of the Bankruptcy Action,
the Couple sold the Fair Lane Drive Property. See
id. ¶ 106, Ex. 41: General Warranty Deed (Doc. No.
158-41). The Couple received $334, 295.53 in proceeds from
the sale. Id. ¶ 111, Ex. 47: Settlement
Statement (Doc. No. 159-4). However, at no time did the
Couple notify Creditors or the Bankruptcy Court that they had
sold the Fair Lane Drive Property or that they had made a
profit on the sale. See id. ¶ 115. Later that
year, between June and July of 2014, Creditors deposed Ben
Willingham for a third time, this time regarding the
newly-produced records of the Swiss accounts. Id.
¶ 116, Exs. 1, 43: June 18 and July 18, 2014 Deposition
of Ben Hill Willingham (Doc. Nos. 158-1, 158-43; 2014 BW
Dep.)). During his deposition, Ben Willingham identified
numerous deposits and transfers - via wire - of his social
security payments and salary, as well as health insurance
payments and tax refund payments of the Couple, into Erika
Willingham's PostFinance account from 2002 onward.
See 2014 BW Dep. at 165:20-22, 169:5-13 (discussing
social security); 169:24-170:25, 172:12-19, 184:2-5,
251:15-18 (discussing salary); 203:21-204:13 (discussing
health insurance); 211:5-212:1 (discussing income tax
refunds). Ben Willingham acknowledged that some of the funds
in the PostFinance Account were used to pay for the
Couple's personal living expenses. See,
e.g., id. at 208:7-209:5, 236:11-238:9,
242:8-11, 246:23-247:4, 291:2-7. He also identified transfers
in the PostFinance Account related to three investment
accounts that he maintained were owned by his wife: an
account at SwissQuote, an account at Bank Sarasin, and an
account at Bank Leu, later named Clariden Leu. See
id. at 213:22-217:25, 230:9-19. He testified that the funds
in the investment accounts came from his wife's
retirement money, cashed out life insurance policies on him
and his wife, and his wife's inheritance from her
parents. Id. at 217:17-25.
to Ben Willingham, his wife was generally aware that he was
making these transfers, and in fact consented to him doing
so. Id. at 248:1-249:1. Indeed, with respect to
several transactions listed on the PostFinance bank records,
Ben Willingham testified that he was unable to identify the
transaction because it was initiated by his wife.
See, e.g., id. at 225:23-226:24,
230:3-7, 233:20-234:17. As a result of this testimony, on
August 28, 2014, the Bankruptcy Trustee filed a renewed
motion for turnover of the assets contained in the Swiss
accounts. See Kranjac Decl. ¶ 120, Ex. 48:
Trustee's Renewed Motion for Turnover of Property of the
Estate (Doc. No. 159-5). Shortly thereafter, on September 11,
2014, the Bankruptcy Court entered a consent judgment
(Kranjac Decl., Ex. 49: Consent Judgment as to
Dischargeability of Debt (Doc. No. 159-6)), ordering that
Creditors' 2007 Consent Judgment would not be discharged
under the Bankruptcy Action. See Kranjac Decl.
October 31, 2014, Erika Willingham acquired a condominium in
Jacksonville, Florida (the Ortega Boulevard Condo) for
approximately $120, 000. See id. ¶ 123, Ex. 50:
General Warranty Deed (Doc. No. 159-7) and Ex. 51: Settlement
Statement (Doc. No. 159-8). Although the Ortega Boulevard
Condo was purchased using funds from the Couple's
jointly-owned USAA Accounts, title was placed in Erika
Willingham's name alone. See id. ¶ 124
(citations omitted). Additionally, the Couple did not
disclose the purchase to Creditors or the Bankruptcy Court.
Id. ¶ 125. In mid-November of 2014, the Couple
moved out of Fleet Landing and into the Ortega Boulevard
Condo. See id. ¶ 126 (citation omitted).
Subsequently, on December 19, 2014, the Couple received a
partial refund of their entrance fee to Fleet Landing from
NCCRF in the amount of $140, 436. See id. ¶
127, Ex. 53: Check (Doc. No. 159-10; NCCRF Check). Notably,
the check was made out to Ben Willingham, and not to Erika
Willingham. See NCCRF Check. Again, the Couple
failed to disclose this transaction to Creditors or the
Bankruptcy Court. See Kranjac Decl. ¶ 130.
on these events, on January 20, 2015, Creditors filed their
initial complaint. See Complaint and Demand for Jury
Trial (Doc. No. 1; Complaint). They subsequently amended
their Complaint three times, and on November 18, 2016,
Creditors filed the TAC, which is now the operative pleading
in this action. See generally TAC. In the TAC,
Creditors allege the following nine causes of action against
Erika Willingham: a claim for violation of 18 U.S.C. §
1962(c), part of the federal Racketeer Influenced and Corrupt
Organizations (RICO) Act (Count I); a claim under 18 U.S.C.
§ 1962(d) for conspiracy to violate the RICO Act (Count
II); a claim for violation of Fla. Stat. § 895, et
seq., Florida's RICO Act (Count III); a claim for
fraud (Count IV); a claim for fraudulent concealment (Count
V); a claim for negligent misrepresentation (Count VI); a
claim for civil conspiracy (Count VII); a claim for violation
of Fla. Stat. § 726.105(1)(a), the Florida Uniform
Fraudulent Transfer Act (FUFTA) (Count VIII); and a claim for
aiding and abetting a violation of FUFTA (Count IX). See
generally id. Creditors contend that, as a result of the
Couple's actions, they “have been unable to recover
almost all of the [money] that was wrongfully taken by [Ben
Willingham] and his related entities and/or collect on their
[Consent Judgment].” Id. ¶ 165.
the commencement of this action, on January 27, 2015, the
Bankruptcy Trustee filed his Notice of Intention to
Compromise (Kranjac Decl., Ex. 54: Trustee's Notice of
Intention to Compromise (Doc. No. 159-11; Notice)) regarding
his Renewed Motion for Turnover, in which the Trustee agreed
to settle the claim for turnover of the funds in the Swiss
accounts for $53, 000. See Kranjac Decl.
¶¶ 131-32. That same day, Erika Willingham created
the Erika M. Willingham Trust, named herself as trustee, and
executed a quitclaim deed transferring title to the Ortega
Boulevard Condo to herself as trustee. See id.
¶ 137, Ex. 55: Erika M Willingham Trust (Doc. No.
159-12) and ¶ 138, Ex. 56: Quitclaim Deed (Doc. No.
159-13). In the Quitclaim Deed, Erika Willingham
reserved a life estate in the Ortega Boulevard Condo for
herself and her husband. See Quitclaim Deed. The
Couple failed to disclose this conveyance to Creditors or the
Bankruptcy Court. See Kranjac Decl. ¶ 140.
March 2, 2015, the Bankruptcy Trustee filed a Motion for
Order Approving Compromise (Kranjac Decl., Ex. 57: Motion for
Order Approving Compromise (Doc. No. 159-14; Compromise
Motion)) with respect to the funds in the Swiss accounts, and
the Bankruptcy Court entered an order granting the Compromise
Motion the following day. See Kranjac Decl.
¶¶ 141; 143, Ex. 58: Order Approving Compromise
(Doc. No. 159-15; Compromise Order). On April 13, 2015, the
Bankruptcy Trustee filed his final report in the Bankruptcy
Action (Kranjac Decl., Ex. 59: Trustee's Final Report
(Doc. No. 159-16; Final Report)), in which he stated that
each individual plaintiff would receive $6, 657.30 as a
creditor of Ben Willingham in full satisfaction of his
interest in the Swiss accounts, for a combined total of $39,
943.81. See Kranjac Decl. ¶ 145. In the Final
Report, the Bankruptcy Trustee again “made no mention
of any claim for fraudulent transfer.” Id.
¶ 146 (citing Final Report).
of 2015, the Couple formed Osborn of Jacksonville, Inc.
(Osborn). Id. ¶ 149, Ex. 61: Osborn of
Jacksonville, Inc. Articles of Organization and Company
Agreement (Doc. No. 159-18). On September 11, 2015, the
Bankruptcy Court closed Ben Willingham's Bankruptcy
Action. Id. ¶ 148. However, between the time of
Osborn's formation and the close of the Bankruptcy
Action, Ben Willingham deposited $176, 630 in Osborn's
corporate bank account without disclosing the deposits to
Creditors or the Bankruptcy Court. See id.
¶¶ 151, 152, 155 (citations omitted).
February 23, 2017, Creditors deposed Erika Willingham in
connection with the present action. See generally
id. ¶ 90, Ex. 17: February 23, 2017 Deposition of
Erika Willingham (Doc. No. 158-17; 2017 EW Dep.). During her
deposition, Erika Willingham admitted to
“possibly” having some Swiss bank accounts,
specifically, a postal account and an account with Bank Leu,
but denied any awareness as to other accounts in her name.
See 2017 EW Dep. at 55:2-56:11, 97:3-12,
102:23-104:7. She also testified that she “wasn't
involved with the account[s]” in that she had
previously given her husband authorization to use them.
See 2017 EW Dep. at 55:2-56:11; 90:1-91:9.
Specifically, Erika Willingham admitted to giving her husband
signatory authority over her accounts after they got married
so that he could manage the Couple's finances. See
id. at 114:22-115:21. Indeed, with respect to general
business and financial matters, Erika Willingham testified
that she does not “want to know the details of these
things” and that she had “trusted [her husband]
for the last forty years.” Id. at 124:11-15.
later, Creditors deposed Ben Willingham. See
generally Kranjac Decl. Ex. 35: February 24, 2017
Deposition of Ben H. Willingham (Doc. No. 158-35; 2017 BW
Dep.). During his deposition, Ben Willingham admitted to
receiving signatory authority over Erika Willingham's
Swiss accounts. See id. at 22:4-17; 25:6-15. He also
admitted to using funds from an account created for Osborn to
pay his wife's legal fees for this action, purportedly as
repayment on a loan she had initially made to the company.
See id. at 30:7-31:3. He could not, however, produce
any documentation supporting his contention that these
payments were actually loan repayments. See id. at
33:8-23. Later in the deposition, Ben Willingham explained
that he viewed the money in their joint account as belonging
to his wife and provided the following explanation:
The money in the Bank Leu account, back when there was money,
was hers. It came from an insurance pension fund that was to
our benefit. I had signed it over to her 20 years ago. And
when it was closed, it was hers, and went into the Bank Leu.
And then, later, the money came from her parents' estate.
It went to her in Bank Leu. Everything that went down was
See id. at 48:19-49:7. However, Ben Willingham did
concede that his Social Security payments were generally
deposited into one of the Swiss accounts and later
transferred to the jointly-owned USAA Accounts. See
id. at 51:16-52:22.
Standard of Review
Rule 56, Federal Rules of Civil Procedure (Rule(s)),
“[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Rule 56(a). The record to be considered on a
motion for summary judgment may include “depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials.” Rule 56(c)(1)(A). An issue is
genuine when the evidence is such that a reasonable jury
could return a verdict in favor of the non-movant. See
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (quoting Hairston v. Gainesville Sun
Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)).
“[A] mere scintilla of evidence in support of the
non-moving party's position is insufficient to defeat a
motion for summary judgment.” Kesinger ex rel.
Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247
(11th Cir. 2004) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)).
party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined
at trial. See Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991). “When a moving party
has discharged its burden, the non-moving party must then go
beyond the pleadings, and by its own affidavits, or by
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a
genuine issue for trial.” Jeffery v. Sarasota White
Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995)
(citations and quotation marks omitted). Substantive law
determines the materiality of facts, and “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248.
In determining whether summary judgment is appropriate, a
court “must view all evidence ...