Colon v. Blades, No. 3:2007cv01380 - Document 154 (D.P.R. 2010)

Court Description: OPINION AND ORDER granting re 148 MOTION to dismiss Defamation Action for Failure To Answer Interrogatories as to Roberto Morgalo filed by Ruben Blades Productions, Inc., Ruben Blades Signed by Chief Mag. Judge Justo Arenas on 3/31/2010.(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 6 Plaintiff 7 v. 8 RUBà N BLADES, ROBERTO MORGALO, MARTà NEZ, MORGALO & ASSOCIATES, 9 10 11 Defendants 12 RUBà N BLADES, 13 Cross-Plaintiff 14 v. CIVIL 07-1380 (JA) 15 18 ROBERT MORGALO, in his personal capacity and as owner and member of MARTà NEZ, MORGALO & ASSOCIATES, LLC, MARTà NEZ, MORGALO & ASSOCIATES, LLC, 19 Cross-Defendants 16 17 20 21 ROBERT J. MORGALO, 22 Plaintiff 23 v. 24 25 RUBà N BLADES, RUBà N BLADES PRODUCTIONS, INC., 26 Defendants 27 28 OPINION AND ORDER 1 CIVIL 07-1380 (JA) 2 2 3 This matter is before the court on motion to dismiss defamation claim for 4 5 failure to answer interrogatories filed on March 23, 2010 by the defendants Rubén 6 Blades ( Mr. Blades ) and Rubén Blades Productions, Inc., ( RBP ). (Docket No. 7 148.) Plaintiff Roberto Morgalo ( Mr. Morgalo ) filed a response on March 26, 8 2010. (Docket No. 150.) Also on March 26, 2010, Mr. Blades and RBP replied. 9 10 11 12 13 (Docket No. 151.) For the reasons set forth below, the motion to dismiss the defamation claim is GRANTED. I. FACTUAL AND PROCEDURAL BACKGROUND On April 29, 2008, plaintiff filed an amended complaint to which defendant 14 15 Blades replied on May 9, 2008. (Docket Nos. 45 & 48.) On June 5, 2008, 16 defendant Blades sought indemnification from Morgalo by filing a cross claim 17 which was amended on July 29, 2008. (Docket Nos. 49 & 56.) 18 In response to comments allegedly made by the defendant to the media, 19 20 Morgalo filed a defamation claim against him and his company, Blades 21 Productions, Inc., in the United States District Court for the Southern District of 22 New York on May 1, 2008. The parties agreed to transfer the claim to this district 23 on August 12, 2008. (Docket No. 58-3.) 24 On September 2, 2008, Morgalo answered plaintiff s amended complaint as 25 26 27 28 well as the defendant s amended cross claim (Docket Nos. 66 & 67) and on 1 CIVIL 07-1380 (JA) 3 2 3 October 17, 2008, defendant answered Morgalo s defamation claim. (Docket No. 4 5 6 7 8 73.) II. ANALYSIS Rule 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure provides, in pertinent part, that [i]f a party . . . fails to obey an order to provide . . . 9 10 discovery . . . the court where the action is pending may issue further just orders. 11 They may include the following: . . . (v) dismissing the action or proceeding in 12 whole or in part. Fed. R. Civ. P. 37(b)(2)(A)(v). However, courts have held that 13 [d]ismissal as a sanction runs counter to judicial policy favoring the disposition 14 15 of cases on the merits. Afreedi v. Bennett, 517 F. Supp. 2d 521, 526-27 (D. 16 Mass. 2007) (citing Velázquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 17 1075-76 (1st Cir. 1990)). Nevertheless, the law is well established in this circuit 18 that where a noncompliant litigant has manifested a disregard for orders of the 19 20 court and been suitably forewarned of the consequences of continued 21 intransigence, a trial judge need not first exhaust milder sanctions before 22 resorting to dismissal. Taylor v. Woods, 241 F.R.D. 421, 423 (D.R.I. 2006) 23 (quoting Angulo-à lvarez v. Aponte de la Torre, 170 F.3d 246, 252 (1st Cir. 1999) 24 (quoting Ruiz v. Alegría, 896 F.2d 645, 649 (1st Cir. 1990)); see Guex v. 25 26 Allmerica Fin. Life Ins. & Annuity Co., 146 F.3d 40, 42 (1st Cir. 1998) (quoting 27 Damiani v. R.I. Hosp., 704 F.2d 12, 15 (1st Cir. 1983)) ( [N]othing in [Rule 37] 28 1 CIVIL 07-1380 (JA) 4 2 3 that states or suggests that the sanction of dismissal can be used only after all the 4 5 other [available] sanctions . . . have been considered and tried. ) 6 When noncompliance with an order occurs, the ordering court should 7 consider the totality of [the circumstances] and then choose from the broad 8 universe of available sanctions in effort to fit the punishment to the severity of 9 10 and circumstances of the violation. Taylor v. Woods, 241 F.R.D. at 423 (quoting 11 Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003)). In assessing what sanction 12 is appropriate, a court must consider: (1) severity of the violation, (2) the 13 legitimacy of the party s excuse, (3) repetition of violations, (4) the 14 15 deliberateness of the misconduct, (5) mitigating excuses, (6) prejudice to the 16 other side and to the operations of the court, and (7) the adequacy of lesser 17 sanctions. Afreedi v. Bennett, 517 F. Supp. 2d at 527 (citing Benítez-García v. 18 González-Vega, 468 F.3d 1, 5 (1st Cir. 2006)). 19 20 On January 22, 2010, Mr. Blades served on Mr. Morgalo a second set of 21 interrogatories specifically targeting the defamation claim and damages. The 22 answers were due on February 22, 2010. 23 conference held on February 23, 2010, Mr. Morgalo was told to answer the 24 Apparently, during a telephone interrogatories by March 20, 2010. At a March 1, 2010 hearing, Morgalo agreed 25 26 that he would answer the interrogatories by (Saturday) March 20, 2010. There 27 was no indication during the conference and at the discovery hearing that the 28 1 CIVIL 07-1380 (JA) 5 2 3 interrogatories would not be answered or that there would be an objection to the 4 5 same based upon their exceeding 25 interrogatories. Mr. Morgalo s response to 6 the motion to dismiss relates that the second set of interrogatories contained 46 7 interrogatories and 59 subsections were initially objected to on February 18, 8 2010, but it was agreed at the hearing held on March 1, 2010 that the same 9 10 would be answered by March 22, 2010. (Docket No. 150, at 2, ¶ 5.) Mr. Morgalo 11 claims that because of a confusion, the interrogatories were answered a day later, 12 on March 23, 2010. (Id. ¶ 6.) Monday, March 22, 2010, was a local holiday. 13 Therefore the answers were delivered on March 23, 2010. 14 15 Mr. Blades stresses in his reply that the answers were due on March 20, 16 2010. (Docket No. 151, at 1-2, ¶ 1.) Apart from the tardiness argument, Mr. 17 Blades notes that the answers to interrogatories are incomplete, evasive and 18 inadequate, as well as replete with unjustified objections. (Id. at 2, ¶ 3.) Mr. 19 20 Blades argues that the answers of March 23, 2010 should be treated as a refusal 21 to answer, amounting to malfeasance, willful and contumacious conduct and 22 warranting the sanction of dismissal. (Id. at 3, ¶ 7.) 23 24 It is clear that Mr. Morgalo has waived objection to the interrogatories, first by not objecting in a timely manner and then by selectively answering the 25 26 interrogatories he wished to answer, in this case, the first 19. See Fed. R. Civ. P. 27 33(b)(1)(4); 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal 28 1 CIVIL 07-1380 (JA) 6 2 3 Practice and Procedure § 2168.1 (3d ed.); see, e.g., Allaverdi v. Regents of Univ. 4 5 of N.M., 228 F.R.D. 696, 698 (D.N.M. 2005). An oversight resulting in a one or 6 two day delay in answering interrogatories would not ordinarily trigger a severe 7 sanction. 8 But here there is more. The parties and the court expected the interrogatories to be answered. A protective order was never sought by Mr. 9 10 Morgalo to limit the number of interrogatories he was to answer. See Herdlein 11 Tech., Inc. v. Century Contractors., 147 F.R.D. 103, 104 (W.D.N.C. 1993); Casson 12 Const. Co. v. Armco Steel Corp., 91 F.R.D. 376, 378 (D.C. Kan. 1980). While it 13 may have been more appropriate for leave to be sought from the court by Blades 14 15 before propounding the interrogatories, the fact that there are two parties being 16 sued by Mr. Morgalo would double the normal limit of 25 written interrogatories 17 generally allowed. Fed. R. Civ. P. 33(a)(1). In this case, I have gone through the 18 interrogatories. Generally, Mr. Morgalo simply and conveniently stopped after the 19 20 first 19. Mr. Morgalo s disappointing cardinal conduct results in unnecessary 21 added expenses and delay in an already protracted case which is approaching a 22 plenary trial and a default judgment. This myopic selective litigation tactic which 23 violates a clearly defined discovery rule invites no sanction more appropriate than 24 dismissal of the defamation claim. See, e.g., United States v. One 1987 BMW 25 26 325, 985 F.2d 655, 657 (1st Cir. 1993); Ortiz-Rivera v. Mun. Gov t of Toa Alta, 27 214 F.R.D. 51, 57 (D.P.R. 2003). 28 Morgalo filed no timely objection to the 1 CIVIL 07-1380 (JA) 7 2 3 interrogatories, resulting in a clear waiver. He made no demand for a protective 4 5 order. Finally, he selectively chose which interrogatories to answer rather than 6 requesting Blades to choose within what Morgalo considered the arguably allotted 7 number. The grounds for objection announced on March 23, 2010 could have 8 been announced in late January, 2010. Morgalo s conduct in skirting answers 20 9 10 and above is at best contumacious, and at most contumelious. There is no 11 legitimate excuse for answering the interrogatories in the fashion they were 12 answered. 13 III. CONCLUSION 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In view of the above, Mr. Morgalo s defamation claim against defendants Rubén Blades and Rubén Blades Productions, Inc. is hereby DISMISSED. In San Juan, Puerto Rico this 31st day of March, 2010. S/ JUSTO ARENAS Chief United States Magistrate Judge

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