Moreno-Perez v. Toledo, et al, No. 3:2007cv01863 - Document 85 (D.P.R. 2010)

Court Description: OPINION AND ORDER granting re 77 MOTION for Reconsideration (Resolution of Motion for Reconsideration) re 62 Order on Motion for Reconsideration, 72 Order on Motion for Entry of Default MOTION for Reconsideration (Resolution of Motion for Reconsideration) re 62 Order on Motion for Reconsideration, 72 Order on Motion for Entry of Default filed by Robert Moreno-Perez Signed by Chief Mag. Judge Justo Arenas on 3/11/2010.(nydi)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 ROBERT MORENO-Pà REZ, 5 6 Plaintiff 7 v. 8 PEDRO TOLEDO-Dà VILA, et al., 9 CIVIL 07-1863 (JA) Defendants 10 11 OPINION AND ORDER 12 13 14 This matter is before the court on motion for reconsideration filed by plaintiff, Robert Moreno-Pérez, on January, 20, 2010. (Docket No. 77.) The 15 16 defendants, Pedro Toledo-Dávila, Diana Marrero-Trinidad, Carmen Bruno-Pabón, 17 Luis R. Márquez-Martínez, and José Rivera-Alicea, filed a motion in opposition on 18 January 5, 2010. (Docket No. 81.) For the reasons set forth below, plaintiff s 19 motion is GRANTED. 20 21 I. BACKGROUND 22 On August 11, 2009, plaintiff filed a request for leave to file a third amended 23 complaint to include Diego Santos-Pabón ( Santos ) and Edric Medina-Laureano 24 ( Medina ) as defendants in this case. (Docket No. 43.) On September 4, 2009, 25 26 plaintiff s motion was granted by the court. (Docket No. 45.) On September 11, 27 2009, plaintiff filed the third amended complaint. (Docket No. 46.) On 28 September 15, 2009, plaintiff filed a request for issuance of summons addressed 1 CIVIL 07-1863 (JA) 2 2 3 to Santos and Medina. (Docket No 47.) On that same day the court granted 4 5 plaintiff s motion. (Docket No. 48.) On September 17, 2009, the summons were 6 issued by the clerk. (Docket No. 49.) On December, 15, 2009, plaintiff filed a 7 motion for extension of time until March 5, 2010, to serve the summons. (Docket 8 No. 50.) Plaintiff s motion was denied by the court on December 16, 2009. 9 10 (Docket No. 51.) 11 On January 15, 2010, the defendants filed a motion to dismiss pursuant to 12 Federal Rule of Civil Procedure 4(m). (Docket No. 60.) In their motion, the 13 defendants argued that the summons as to Santos and Medina were not served 14 15 by plaintiff within 120 days after the third amended complaint was filed. (Id. at 16 2, ¶ 3.) According to the defendants the summons were supposed to have been 17 served by January 9, 2010. (Id.) The defendants motion was denied for lack of 18 standing. (Docket No. 61.) Despite of this the court, on its own motion, 19 20 21 22 23 24 dismissed without prejudice plaintiff s claims against Santos and Medina. (Docket No. 62.) On January 19, 2010, plaintiff filed a motion requesting entry of default against the defendants for failing to answer the third amended complaint. (Docket No. 67.) Plaintiff also requested the court to reconsider the order 25 26 dismissing the claims against Santos and Medina. (Id.) On that same day, after 27 the defendants filed a motion in opposition, the court issued an order denying 28 1 CIVIL 07-1863 (JA) 3 2 3 plaintiff s request for entry of default. (Docket Nos. 68 & 72.) However, the court 4 5 did not address plaintiff s request for reconsideration. (Id.) 6 As a result, on January 20, 2010, plaintiff filed a motion requesting that the 7 court reconsider its order dismissing the claims against Medina and Santos. 8 (Docket No. 77.) In his motion plaintiff makes several arguments to support his 9 10 request. First, plaintiff states that if he had been given notice prior to the 11 dismissal he could have informed the court that the summons as to Medina and 12 Santos were served a couple of days after the deadline, on January 12 and 13, 13 2010. (Id. at 4.) Plaintiff claims that the reason why the summons were served 14 15 after the deadline was in part due to a delay in the Clerk s Office in issuing the 16 summons. (Id.) Second, he argues that contrary to what the court held in its 17 order an extension of time to serve the summons was requested. (Id.) Plaintiff 18 states that he also sought leave to serve the summons by publications but that 19 20 his request was not addressed by the court. (Id.) Third, plaintiff claims that he 21 made all diligent efforts to complete service within the 120 day period prescribed 22 by Rule 4(m). (Id. at 5.) Fourth, plaintiff sustains that the delay in service does 23 not prejudice the defendants in any way. (Id. at 6.) Finally, plaintiff claims that 24 justice would be best served if the court allowed a nunc pro tunc extension of time 25 26 27 28 until January 15, 2010, for service of process on Santos and Medina. (Id.) 1 CIVIL 07-1863 (JA) 4 2 3 On February 5, 2010, the defendants filed a motion in opposition requesting 4 5 the court to deny plaintiff s request for reconsideration. (Docket No. 81.) The 6 defendants argue that justice would not be served by allowing an extension of 7 time. 8 (Id. at 2, ¶ 5.) According to the defendants, plaintiff has been given multiple opportunities to amend his complaint and correct the deficiencies 9 10 contained in it. (Id.) They also contend that if plaintiff knew that summons were 11 served after the 120 day period, he should have filed the proof of service 12 immediately after they were executed. 13 (Id. at 3, ¶ 7.) Furthermore, the defendants believe that vacating the court s order at this time would mean that 14 15 discovery in this case would have to be reopened in order for Santos and Medina 16 to properly defend against plaintiff s claims. (Id. ¶ 8.) However, the defendants 17 state that in the event that the order is vacated they will ask the court to allow 18 them to file a dispositive motion regarding the claims made by plaintiff against 19 20 21 Santos and Medina. (Id. ¶ 10.) II. STANDARD OF REVIEW 22 A motion for reconsideration may only be granted by a district court if the 23 moving party demonstrates that there is: (1) newly discovered evidence that 24 would change the result, (2) an intervening change in controlling law, or (3) the 25 26 need to correct a manifest error of law or fact. Silva Rivera v. State Ins. Fund 27 Corp., 488 F. Supp. 2d 72, 78 (D.P.R. 2007) (citing Dodge v. Susquehanna Univ., 28 1 CIVIL 07-1863 (JA) 5 2 3 796 F. Supp. 829, 830 (M.D. Pa. 1992)); see also Marks 3-Zet-Ernst Marks GmBh 4 5 & Co. KG v. Presstek, Inc., 455 F.3d 7, 15 (1st Cir. 2006). 6 reconsideration, however, may not be used to repeat old arguments previously 7 considered and rejected, or to raise new legal theories that should have been 8 raised earlier. Sánchez-Rodríguez v. Departamento de A motion for Correción y 9 10 Rehabilitación, 537 F. Supp. 2d 295, 297 (D.P.R. 2008) (quoting Nat l Metal 11 Finishing Com. v. Barcalys Am./Commercial, Inc., 899 F.2d 119, 123 (1st Cir. 12 1990)). 13 III. ANALYSIS 14 15 Summons 16 1. Notice 17 Plaintiff argues that the court dismissed, on its own motion, without notice, 18 all of the claims against Santos and Medina. (Docket No. 77, at 4.) He states that 19 20 21 22 23 24 25 26 27 28 if the court had given him notice he would have had time to file the proof of service. (Id.) Rule 4(m) states, in pertinent part, as follows: If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m). 1 CIVIL 07-1863 (JA) 6 2 3 In order to dismiss a complaint sua sponte, the rule requires that prior 4 5 notice of the impending dismissal be awarded by the district court. Panzardi- 6 Santiago v. Univ. of P.R., 200 F. Supp. 2d 1, 24-25 (D.P.R. 2002); see Ruiz-Varela 7 v. Sánchez-Vélez, 814 F.2d 821, 823 (1st Cir. 1987) (the First Circuit found that 8 the notice requirements were not violated because the district court s order of 9 10 dismissal itself gave plaintiff notice of the issue as well as the opportunity to argue 11 good cause for the failure of service); see also Brown v. District of Columbia, 514 12 F.3d 1279, 1286-87 (D.C. Cir. 2008) (where the district court erred in sua sponte 13 dismissing claims against individual defendants for a failure to effect service when 14 15 16 17 18 the plaintiff had neither actual nor constructive notice of the court s impending action). However, [w]hen the plaintiff has had an adequate opportunity to argue good cause for the failure to serve, such as in a motion for reconsideration, some 19 20 circuits have held that a warning by the trial court prior to dismissal is not 21 required. Betancourt v. Toledo, 199 F.R.D. 447, 448 (D.P.R. 2001) (quoting 22 Smith-Bey v. Cripe, 852 F.2d 592, 593 (D.C. Cir. 1988) (citing Ruiz-Varela v. 23 Sánchez-Vélez, 814 F. 2d at 823)). In other words, an order of dismissal in itself 24 can serve as a proper means of notifying a plaintiff of the issue as long as he is 25 26 given the opportunity to argue good cause for the failure of service. Betancourt 27 v. Toledo, 199 F.R.D. at 448. 28 1 CIVIL 07-1863 (JA) 7 2 3 Although it is correct that no warning was given prior to dismissal it does not 4 5 mean that plaintiff was prejudiced. It was plaintiff who had the obligation of 6 informing the court that the summons were served regardless of whether or not 7 notice was given before the impending dismissal. See Fed. R. Civ. P. 4(l)(1) 8 ( Unless service is waived, proof of service must be made to the court. ). There 9 10 is simply no excuse that can justify plaintiff s lack of diligence. It was not until the 11 court dismissed plaintiff s claims that he informed that the summons had been 12 served. As the defendants point out, if plaintiff knew that the summons were not 13 served within the time limit, he should have filed a proof of service immediately 14 15 after they were executed. (Docket No. 81, at 3, ¶ 7.) 16 However, the fact that plaintiff did not file a proof of service before the 17 claims were dismissed does not mean that he has failed to provide any reason 18 that would justify the delay in serving the summons. Although plaintiff filed a 19 20 motion for entry of default and reconsideration, no ruling was made as to whether 21 there was good cause for justifying the delay in serving the summons. As such, 22 the court will now address the issue. 23 24 2. Good Cause [A] plaintiff may escape dismissal in the face of insufficient service in two 25 26 circumstances: [(1)] where there is good cause for the failure, or [(2)] even if 27 there is not good cause shown, where the court in its discretion decides to grant 28 1 CIVIL 07-1863 (JA) 8 2 3 the plaintiff more time to effect service. Bunn v. Gleason, 250 F.R.D. 86, 88 (D. 4 5 Mass. 2008) (citing Fed. R. Civ. P. 4(m); Advisory Committee's Notes on Fed. R. 6 Civ. P. 4 ( The [1993 amendment] explicitly provides that the court shall allow 7 additional time if there is good cause for the plaintiff's failure to effect service in 8 the prescribed 120 days, and authorizes the court to relieve a plaintiff of the 9 10 consequences of an application of this subdivision even if there is no good cause 11 shown. ); Riverdale Mills Corp. v. U.S. Dep't of Transp. Fed. Aviation Admin., 225 12 F.R.D. 393, 395 (D. Mass. 2005)). 13 Good cause is likely (but not always) to be found when the plaintiff s failure 14 15 to complete service in timely fashion is a result of a third person, typically the 16 process server, the defendant has evaded service of the process or engaged in 17 misleading conduct, the plaintiff has acted diligently in trying to effect service or 18 there are understandable mitigating circumstance[s], or the plaintiff is proceeding 19 20 pro se or in forma pauperis. Bunn v. Gleason, 250 F.R.D. at 89 (quoting McIsaac 21 v. Ford, 193 F. Supp. 2d 382, 383 (D. Mass. 2002) (quoting 4B Charles Alan 22 Wright & Arthur R. Miller, Federal Practice and Procedure § 1137, at 342 (3d ed. 23 2002)). 24 However, [i]f good cause is lacking, the determination of whether to extend 25 26 the time for service of process is based on a number of factors, including whether: 27 (a) the party to be served received actual notice of the lawsuit; (b) the defendant 28 1 CIVIL 07-1863 (JA) 9 2 3 would suffer . . . prejudice; and (c) plaintiff would be severely prejudiced if his 4 5 complaint were dismissed. United States v. Tobins, 483 F. Supp. 2d 68, 79-80 6 (D. Mass. 2007) (quoting Riverdale Mills Corp v. U.S. Dep t of Transp. Fed. 7 Aviation Admin., 225 F.R.D. at 395 (quoting In re Sheehan, 253 F.3d 507, 512 8 (9th Cir. 2001)). 9 10 The court finds that plaintiff has shown good cause for his delay in serving 11 the summons as to Medina and Santos. Plaintiff made reasonable efforts to serve 12 the summons within the time limit noted in Rule 4(m) after the third amended 13 complaint was filed. The record shows that plaintiff requested the help of both 14 15 the Department of Justice ( DOJ ) and the Puerto Rico Police Department 16 ( PRPD ) because he had no knowledge of the last known addresses of Santos and 17 Medina. (Docket No. 50.) However, since neither the DOJ nor the PRPD were 18 able to help, plaintiff requested an extension of time to serve the summons. (Id.) 19 20 Then, after his request was denied by the court, plaintiff hired a private detective 21 in order to find and serve Medina and Santos. (Docket Nos. 67-2, 67-3 & 77, at 22 5-6.) Needless to say, the detective was able to find them and serve process. 23 (Id.) Thus, it is clear that plaintiff exercised due diligence in effecting service of 24 process within the 120 day period. 25 26 Furthermore, there are two mitigating circumstances that justify plaintiff s 27 delay in serving the summons. First, plaintiff s motion requesting an extension 28 1 CIVIL 07-1863 (JA) 10 2 3 of time to serve the summons was denied because trial was scheduled for 4 5 February 1, 2010. (Docket No. 51.) However, the trial date was vacated and has 6 not been rescheduled. (Docket No. 63.) Second, as plaintiff points out there was 7 a delay in the issuance of the summons. (Docket No. 77, at 4-5.) The reason for 8 the delay plaintiff explains was due to a problem with the summons. (Id.) 9 10 According to plaintiff, after filing the third amended complaint along with the 11 summons on September 11, 2009, he was notified by the clerk s office that the 12 form that was used was outdated. (Id.) After being informed of the problem, 13 plaintiff on September 15, 2009, filed a motion for issuance of summons. 14 15 (Docket No. 47.) On that same day, the court entered an order granting plaintiff s 16 motion for issuance of summons. (Docket No. 48.) The new summons were 17 issued on September 17, 2009. (Docket No. 49.) All in all six days transpired 18 from the moment the plaintiff filed the third amended complaint until the 19 20 21 summons of Santos and Medina were issued. Plaintiff had until January 8, 2010, to serve the summons. 22 The record shows that the summons were served five days after the 23 deadline. (Docket Nos. 67-2 and 67-3.) Medina was served on January 12, 2010, 24 while Santos was served on January 13, 2010. (Id.) Therefore, this means that 25 26 if not for the problems encountered by plaintiff in obtaining the summons they 27 would have been served within the 120 days. Hence, plaintiff s claims against 28 1 CIVIL 07-1863 (JA) 11 2 3 Medina and Santos probably would not have been dismissed by the court. Thus, 4 5 in light of all of these circumstances the court s order dismissing plaintiff s claims 6 must be vacated. Even though there was a short delay in serving the summons 7 of Medina and Santos, the court finds that all of the defendants were properly 8 served. 9 10 The court would have arrived to the same conclusion, by exercising its 11 discretion, even if plaintiff had failed to show good cause for his failure to serve 12 the summons within the time period permitted by Rule 4(m). 13 The fact that defendants were served expediently gives the court reason to believe that both 14 15 Medina and Santos were aware of the claims asserted against them. In other 16 words, Medina and Santos ability to defend themselves will not be affected or 17 diminished. 18 Moreover, the defendants have not shown that by vacating the order 19 20 dismissing plaintiff s claims against Medina and Santos they will be prejudiced. 21 The defendants only argue that vacating the order will entail reopening the 22 discovery in this case. The defendants argument, however, is unavailing. The 23 fact that plaintiff s claims were dismissed without prejudice does not mean that 24 the ideal course of action is to hold a separate trial against Medina and Santos, 25 26 much less when there was only a short delay in the service process. To hold 27 otherwise would only result in the waste of judicial resources. 28 1 CIVIL 07-1863 (JA) 12 2 3 IV. CONCLUSION 4 5 For the reasons set forth above, plaintiff s motion is hereby granted. 6 Accordingly, the court s order dismissing plaintiff s claims against Medina and 7 Santos is vacated. 8 At San Juan, Puerto Rico, this 11th day of March, 2010. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge

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