Colon v. Blades, No. 3:2007cv01380 - Document 109 (D.P.R. 2009)
Court Description: OPINION AND ORDER denying re 108 MOTION for Reconsideration re 107 Opinion and Order filed by Ruben Blades Signed by Chief Mag. Judge Justo Arenas on 10/14/2009.(nydi)
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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 WILLIAM ANTHONY COLà N, 5 Plaintiff 6 v. CIVIL 07-1380 (JAG) (JA) 7 8 9 RUBà N BLADES, ROBERTO MORGALO, Defendants 10 11 OPINION AND ORDER 12 13 14 This matter is before the court on the defendant Rubén Blades Motion for Reconsideration of the Court s August 21, 2009, Order Denying Blades Motion for 15 16 Summary Judgment or 28 U.S.C. § 1292(b) Certification. (Docket No. 108.) The 17 defendant s motion was filed on August 31, 2009. 18 below, defendant s motion is DENIED. 19 For the reasons set forth I. FACTUAL AND PROCEDURAL BACKGROUND 20 21 On May 4, 2007, plaintiff filed this action seeking $115,000 in 22 compensation. (Docket No. 1.) On May 28, 2009, defendant filed a motion for 23 summary judgment, arguing that plaintiff had failed to satisfy the amount in 24 controversy requirement for subject matter jurisdiction before this court. 25 26 27 28 (Docket No. 95.) That motion was denied in an Opinion and Order (the opinion ) issued on August 21, 2009. (Docket No. 107.) The defendant now asks the court 1 CIVIL 07-1380 (JAG) (JA) 2 2 3 to reconsider or that in the alternative that he be given leave to file an 4 5 interlocutory appeal. (Docket No. 108.) 6 The facts of this case are as contained in the August 21 opinion. 7 January 22, 2003, Roberto Morgalo ( Morgalo ), Arturo MartÃnez ( MartÃnez ), and 8 On their company, MartÃnez, Morgalo & Associates ( MMA ) entered into an 9 10 engagement contract with DISSAR productions on defendant s and plaintiff s 11 behalf. (Docket No. 95-2.) The contract provided that plaintiff and the defendant 12 would perform a music concert on May 3, 2003 in exchange for a guaranteed 13 payment of $350,000 from DISSAR. (Id.) Plaintiff and the defendant were to 14 15 split the proceeds evenly, after deducting certain expenses, including a $35,000 16 commission for MMA. (Docket No. 95, at 6-7.) Plaintiff avers that the defendant 17 was to be in charge of collecting payments from DISSAR, while the defendant 18 contends that the collection was MMA s responsibility. (Docket No. 48, at 5.) 19 Plaintiff alleges that a few days prior to the concert, the defendant informed 20 21 him that MartÃnez had disappeared with the money to be paid to Colón. (Docket 22 No. 1.) However, plaintiff claims that the defendant told him that he would be 23 personally responsible for the amount owed plaintiff. Thus, plaintiff performed at 24 the concert, but he has only received an $72,917.10 in compensation to this 25 26 point. 27 controversy is only $65,751.06, (Docket No. 95, at 9), while plaintiff contends 28 (Docket No. 104, at 4.) The defendant alleges that the amount in 1 CIVIL 07-1380 (JAG) (JA) 3 2 3 that $87,582.52 is at stake. The Opinion concluded that plaintiff satisfied the 4 5 jurisdictional requirement that the amount pleaded be greater than $75,000. 6 (Docket No. 107.) 7 8 II. DISCUSSION A. Motion for Reconsideration 9 10 The Federal Rules of Civil Procedure do not specifically provide for the filing 11 of motions for reconsideration. Villanueva-Méndez v. Nieves Vázquez, 360 F. 12 Supp. 2d 320, 323 (D.P.R. 2005) (citing Sierra Club v. Tri-State Generation & 13 Transmission Assoc., Inc., 173 F.R.D. 275, 287 (D. Colo. 1997); Hatfield v. Bd. 14 15 of County Comm rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995)). 16 Nevertheless, any motion seeking the reconsideration of a judgment or order is 17 considered as a motion to alter or amend a judgment under Fed.R.Civ.P. 59(e) if 18 it seeks to change the order or judgment issued. Villanueva-Méndez v. Nieves 19 20 21 Vázquez, 360 F. Supp. 2d at 323 (citing Hatfield v. Bd. of County Comm rs for Converse County, 52 F.3d 858 at 861). 22 Although the defendant fashioned his motion for reconsideration as one 23 under Rule 59(e), the truth of the matter is that it cannot be treated as such 24 because the opinion issued is not a final judgment since the only issue that was 25 26 addressed was whether or not the court had subject matter jurisdiction. See 27 Portugués-Santa v. B. Fernández Hermanos, Inc., 614 F. Supp. 2d 221, 226 28 1 CIVIL 07-1380 (JAG) (JA) 4 2 3 (D.P.R. 2009) ( Neither [Rule59(e) nor Rule 60(b)] applies at this juncture of the 4 5 case . . . because both rules apply only to final judgments. ) (citing United States 6 v. Baus, 834 F.2d 1114, 1118 (1st Cir. 1987)). 7 8 Therefore, the decision as to whether or not to reconsider the denial of [defendant s] summary judgment motion falls squarely within the plenary power 9 10 of the court that issued the initial ruling, this court. Portugués-Santa v. B. 11 Fernández Hermanos, Inc., 614 F. Supp. 2d at 226 (deciding to exercise [the 12 court s] discretion in favor of entertaining the motion for reconsideration. ) (citing 13 Campos v. P.R. Sun Oil Co., 536 F.2d 970, 972 n.6 (1st Cir. 1976). 14 15 The defendant alleges that the court erred in three different respects. First, 16 he contends that it was error for the court to conclude that Plaintiff claims that 17 he had reached a new verbal contract, for $175,000.00 with Mr. Blades when he 18 refused to perform at the concert . . . . (Docket No. 108, at 3) (citing Docket 19 20 No. 107, at 12.) The opinion stated the following: It appears that plaintiff acted 21 under the belief that a new verbal agreement had been reached in which the 22 defendant would personally take responsibility for the plaintiff s full payment. 23 (Docket No. 107, at 14, ¶ 1.) The court s acknowledgment of a party s factual 24 claim and the court s adoption of that claim as fact are two distinct things, and 25 26 they were treated as such in the opinion. Nowhere did the court find that there 27 was a new verbal contract for $175,000 between the parties. Nevertheless, the 28 1 CIVIL 07-1380 (JAG) (JA) 5 2 3 court would not have erred if it had determined that such a contract existed, since 4 5 a court may, and indeed must, always decide, when a motion for summary 6 judgment is filed, whether there exists sufficient disputed material evidence to 7 allow a factfinder to determine whether a contract existed at the relevant time. 8 Roger Edwards, LLC. v. Fiddes & Son, Ltd., 245 F. Supp. 2d 251, 256 (D. Me. 9 10 2003). It is the parties' factual submissions in connection with each particular 11 motion for summary judgment that provide the basis for the court's determination 12 on that point. Id. Therefore, the defendant s first argument is unavailing. 13 The defendant s second argument charges the court with misapplying the 14 15 legal certainty test for determining whether a plaintiff has satisfied the 16 jurisdictional amount in controversy requirement. (Docket No. 108, at 3 & 8.) 17 The court has jurisdiction if the matter in controversy exceeds the sum or value 18 of $75,000.00. 28 U.S.C. § 1332(a). As stated in the Opinion, 19 20 21 22 23 The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. 24 Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001) (quoting St. Paul 25 Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938)). 26 The defendant claims that the court incorrectly placed the burden of refuting the 27 28 existence of jurisdiction upon him. (Docket No. 108, at 8.) He also claims that 1 CIVIL 07-1380 (JAG) (JA) 6 2 3 the court relied only on the good faith prong of the test, while ignoring the 4 5 requirement that plaintiff demonstrates a lack of legal certainty that the claim is 6 for less than the jurisdictional amount. 7 8 [T]he amount in controversy is determined by looking at the circumstances at the time the complaint is filed. Coventry Sewages Assocs. v. Dworkin Realty 9 10 Co., 71 F.3d 1, 4 (1st Cir. 1995) (citing Thesleff v. Hardvard Trust Co., 154 F.2d 11 732, 732 n.1 (1st Cir. 1946)); Betancourt v. Bear Stearns & Co., 392 F. Supp. 2d 12 187, 189 (D.P.R. 2005) (citing Spielman v. Genzyme Corp., 251 F.3 at 4). Thus, 13 the amount-in-controversy requirement is usually determined from the complaint 14 15 itself, unless it appears or is [demonstrated] that the amount stated . . . is not 16 claimed in good faith. 17 (1961); see also St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. at 288 18 Horton v. Liberty Mut. Ins., Co., 367 U.S. 348, 353 (footnotes omitted) ( [T]he sum claimed by the plaintiff controls if the claim is 19 20 apparently made in good faith. ). When determining good faith, the court must 21 inquire whether it appear[s] to a legal certainty that the claim is really for less 22 than the jurisdictional amount. Coventry Sewages Assocs. v. Dworkin Realty 23 Co., 71 F.3d at 6 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 24 at 289); see also Duchesne v. Am. Airlines, Inc., 758 F.2d 27, 28 (1st Cir. 1985). 25 26 The language of the opinion assuages both of the defendant s concerns in 27 one sentence, by recognizing that [i]f the defendant challenges the amount of the 28 1 CIVIL 07-1380 (JAG) (JA) 7 2 3 allegation, the party seeking to invoke jurisdiction has the burden of alleging with 4 5 sufficient particularity facts indicating that it is not a legal certainty that the claim 6 involves less than the jurisdictional amount. (Docket No. 107, at 10) (citing 7 Stewart v. Tupperware Corp., 356 F.3d 335, 338 (1st Cir. 2004)). However, in 8 order for this to happen the defendant must first meet his burden of showing that 9 10 there is legal certainty that the plaintiff will not recover damages above the 11 jurisdictional threshold. Radlo v. Rhone-Poulenc, S.A., 241 F. Supp. 2d 61, 63 12 (D. Mass. 2002) (citing Spielman v. Genzyme Corp., 251 F.3d at 5.) 13 14 Although the amount in controversy was challenged, the defendant failed 15 to meet his burden of showing to a legal certainty that plaintiff s claim was really 16 for less than the jurisdictional amount. 17 18 Since the court found that based on the defendant s challenge it could not 19 be determined to a legal certainty that plaintiff s claim was really for less than the 20 jurisdictional amount, the court looked at the circumstances surrounding the case. 21 Essential to the court s inquiry in determining if plaintiff s claim exceeded the 22 jurisdictional amount required was whether plaintiff acted under the belief that a 23 24 new verbal contract had been reached. If so, it would suggest that the amount 25 stated in the complaint was made in good faith. Also, the court took into account 26 whether MMA s $35,000 commission was to be included as a deduction from 27 28 concert revenues. If so, the amount in controversy would be less than $75,000. 1 CIVIL 07-1380 (JAG) (JA) 8 2 3 If not, it would be more. Plaintiff argued that the MMA commission should be 4 5 excluded, and the defendant himself admitted that MMA should not get anything. 6 (Docket No. 104-2, at 6.) 7 amount they think they should have earned. . . . (Id.) In other words, the 8 He stated that they should relinquish whatever defendant has essentially agreed that plaintiff should be entitled to his half of the 9 10 11 12 $35,000 commission. The amount to which plaintiff would be entitled if he succeeds in the present action would therefore exceed $75,000. Furthermore, regardless that plaintiff has already received $72, 917.10, in 13 14 each case whether it be that plaintiff acted under the belief that a new verbal 15 contract had been reached or whether MMA s $35,000 commission was to be 16 excluded as a deduction from concert revenues, the present action would exceed 17 the jurisdictional amount. 18 19 The third error that the defendant charges the court with committing 20 involves the Local Rules of the United States District Court for the District of 21 Puerto Rico. The defendant correctly points out that plaintiff violated Rule 56(c) 22 of the Local Rules by failing to submit with its opposition a separate, short, and 23 24 concise statement of material facts. Local Rule 56(c). The defendant is also 25 correct that facts contained in a supporting statement of material facts shall be 26 deemed admitted unless properly controverted. Local Rule 56(e). These facts 27 28 fail, however, to affect the outcome of the opinion. While plaintiff did not submit 1 CIVIL 07-1380 (JAG) (JA) 9 2 3 an opposing statement of material facts, he nonetheless stated facts with record 4 5 citations in opposition to those set forth by the defendant. (See, e.g., Docket No. 6 104, at 3) (citing Deposition Transcript, Docket No. 104-2, at 6.) In other words, 7 he properly controverted facts set forth by the defendant, albeit not in a 8 standard format, with a citation to the specific page or paragraph of identified 9 10 record material supporting [his] assertion[s]. Local Rule 56(e). Even assuming, 11 arguendo, that he did not comply with the Rules, [a] district court may forgive 12 a party s violation of a local rule . . . . Mariani-Colón v. Dep't of Homeland Sec., 13 511 F.3d 216, 219 (1st Cir. 2007) (quoting Crowley v. L.L. Bean, Inc., 361 F.3d 14 15 22, 25 (1st Cir. 2004)); see Lugo-Mender v. Gov't Commc ns, Inc. (In re El 16 Comandante Mgmt. Co.), 404 B.R. 47, 54 (Bankr. D.P.R. 2008) (accepting 17 plaintiff s opposition to motion for summary judgment despite failure to comply 18 with Local Rule 56(c)). 19 20 21 22 B. Request for 28 U.S.C. § 1292(b) Certification The defendant requests that, should his motion for reconsideration be denied, the court certify the jurisdictional issue for interlocutory appeal pursuant 23 24 to 28 U.S.C. § 1292(b). (Docket No. 108.) Such certification is appropriate if the 25 order to be appealed involves a controlling question of law as to which there is 26 substantial ground for difference of opinion and that an immediate appeal from 27 28 the order may materially advance the ultimate termination of the litigation . . . . 1 CIVIL 07-1380 (JAG) (JA) 10 2 3 28 U.S.C. § 1292(b). [I]nterlocutory certification under 28 U.S.C. § 1292(b) 4 5 should be used sparingly and only in exceptional circumstances, and where the 6 proposed intermediate appeal presents one or more difficult and pivotal questions 7 of law not settled by controlling authority. Palandjian v. Pahlavi, 782 F.2d 313, 8 314 (1st Cir. 1986) (citing In re Heddendorf, 263 F.2d 887, 888-89 (1st Cir. 9 10 1959)). [T]he party seeking such appellate review has the burden of convincing 11 not only the district court, but also the appellate court, that the motion satisfies 12 the three factors under section 1292(b). Camacho v. P.R. Ports Auth., 267 F. 13 Supp. 2d 174, 177 (D.P.R. 2003) (citing Estates of Ungar ex rel. Strachman v. 14 15 Palestinian Auth., 228 F. Supp. 2d 40, 50 (D.R.I. 2002)). 16 Here, the defendant does nothing more than request certification for 17 interlocutory appeal. He cites no law and presents no argument in support of his 18 19 20 21 request. Having failed to present any legal argument in favor of a section 1292(b) certification, the defendant has not met his burden to merit such certification. IV. CONCLUSION 22 23 24 25 In view of the above, the defendant s motion for reconsideration and motion for certification pursuant to 28 U.S.C. § 1292(b) are hereby DENIED. At San Juan, Puerto Rico, this 14th day of October, 2009. 26 27 S/ JUSTO ARENAS 28 Chief United States Magistrate Judge
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