Baez-Cruz et al v. Municipality of Dorado et al, No. 3:2009cv01088 - Document 89 (D.P.R. 2011)

Court Description: OPINION AND ORDER granting re 87 MOTION to ContinueFirst MOTION to Withdraw Attorney as to Juan M. Rivera-Gonzalez filed by Municipality of Dorado, Set Hearings Jury Trial reset for 4/4/2011 09:00 AM in Courtroom 6 before Chief Mag. Judge Justo Arenas.Signed by Chief Mag. Judge Justo Arenas on 3/8/2011.(nydi)

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Baez-Cruz et al v. Municipality of Dorado et al 1 Doc. 89 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 OSVALDO Bà EZ-CRUZ, et al., 5 6 Plaintiffs 7 v. 8 MUNICIPALITY OF DORADO, et al., 9 CIVIL 09-1088 (JA) Defendants 10 11 OPINION AND ORDER 12 13 14 This matter is before the court on Motion for Continuance of Trial and to Withdraw Legal Representation filed on Sunday, March 6, 2011. (Docket No. 87.) 15 16 Defense counsel Juan M. Rivera González notes that on February 28th, after four 17 days of hearing (actually after eight days of jury trial, that is, February 15-18 and 18 22-25, 2011) he suffered a medical emergency and had to visit his attending 19 physician. After ordering a battery of tests, the attending physician referred the 20 21 attorney to a neurologist. The attorney made an appointment with neurologist 22 Julio A. Calcaño for Saturday, March 5, 2011. Counsel explains that he sincerely 23 doubts if he will be able to continue the legal representation of the defendant 24 because of his state of health, which has resulted in the Municipality of Dorado 25 26 requesting that he withdraw from this Title VII case which is discrimination based 27 on sex, retaliation and also failure to provide a reasonable accommodation for two 28 of the six plaintiffs, all then members of the Dorado Municipal Police Force. Dockets.Justia.com 1 CIVIL 09-1088 (JA) 2 2 3 4 5 The jury trial in this case commenced as scheduled on February 15, 2011 6 at 9:00 A.M. and has been tried on successive work days beginning at 9:00 A.M. 7 and ending at between 3:00 P.M. and 5:00 P.M. On Monday, February 28, 2011, 8 defense counsel apparently appeared at the United States Courthouse but decided 9 10 to go to emergency with a medical condition. Later in the afternoon, his office 11 informed that a physician had directed him to have bed rest for the rest of the 12 week and to undergo some tests. The jury was excused at about 9:10 A.M. until 13 further notice. 14 15 On Tuesday, March 1, 2011, I entered an order resetting the case for trial 16 for March 7, 2011. The order continued Because the jury will have been excused 17 by then for one week, a particularized voir dire will be conducted at that time, 18 regardless of the presence or absence of defense counsel, although it is my hope 19 20 that defense counsel will be present and ready to participate. If a modification of 21 the current trial schedule is required due to counsel s health reasons, that subject 22 will be addressed then. (Docket No. 84.) 23 24 Plaintiffs, facing a vacuum of information in relation to defense counsel, request that any future continuances be based upon conclusive evidence of 25 26 medical emergency as this delay greatly prejudices plaintiffs in the case, in 27 particular because of the approaching retirement date of the presiding judge. 28 1 CIVIL 09-1088 (JA) 3 2 3 4 5 Plaintiffs also ask that the court try the case on full days, that is, from 9:00 A.M. 6 to 5:00 P.M. due to unforeseen circumstances and the possibility that further 7 delays may occur. (Docket No. 85.) 8 Dr. Calcaño has written a note TO WHOM IT MAY CONCERN dated March 5, 9 10 2011 stating that he evaluated the patient due to an acute episode of severe 11 disorientation just walking to the Court Room. Patient related a sustained stress, 12 minimal sleep, and heavy continuous work related for a recent case 13 representation. The doctor noted preventive rest and neurological work-up 14 15 16 17 18 19 20 21 scheduled for the next four to eight weeks. Medical advice to trial court practice may not be guaranteed. (Docket No. 87-1.) It is clear that [t]rial courts enjoy broad discretion when evaluating a motion for continuance. United States v. De Castro-Font, 583 F. Supp. 2d 243, 244 (D.P.R. 2008) (citing Morris v. Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983); Macaulay v. Anas, 321 F.3d 45, 49 (1st Cir. 2003)); Ramos-Borges v. Puerto Rico, 2010 WL 2044543, at *1 (D.P.R. May 20, 2010). 22 23 24 25 26 27 28 Moreno-Pérez v. Toledo-Dávila, --- F. Supp. 2d ----, 2011 WL 503445, at *2 (D.P.R. Feb. 14, 2011). 1 CIVIL 09-1088 (JA) 4 2 3 4 5 Clearly, counsel is not available to continue with the jury trial under any 6 schedule which I may select.1 Indeed, he did not appear in court on March 7, 7 2011. The Municipality of Dorado was represented in court by Lieutenant Rosa 8 Ramos of the Municipality of Dorado Municipal Police. The Municipality of Dorado 9 10 has asked that attorney Rivera González withdraw legal representation because 11 of his medical condition. Therefore the motion to withdraw legal representation 12 is granted. The Municipality of Dorado is granted until April 4, 2011 to acquire 13 legal representation. 14 15 The jury will not be discharged. The jurors were voir dired in relation to 16 anything which might have happened during the week-long recess that might 17 have an effect on their impartiality. The jury unanimously accepted being excused 18 until April 4, 2011 to resume their duties. The jury was not informed of the 19 20 reasons for the lengthy continuance simply because it is my belief that the jury 21 need not receive more information than is necessary for it to remain fair, impartial 22 and unbiased. As in every case prior to adjournment, the jurors, in a nutshell, 23 24 25 26 27 28 1 As an aside, the present case is not unlike other discrimination cases which have proceeded to trial in this court. The normally nine to five scheduled has been modified to nine to three to accommodate professional obligations, this with the approval of the jury. See, e.g., Manual for Complex Litigation, Fourth § 12.11 (Federal Judicial Center 2004). There have been numerous objections fielded by both sides and a transcript of proceedings should reflect the cordial if forceful balanced atmosphere that is reflected in the litigation. 1 CIVIL 09-1088 (JA) 5 2 3 4 5 were instructed not to discuss the case among themselves or with anyone else 6 and to keep an open mind and not make any decisions until they receive the jury 7 instructions after all of the evidence has been presented. Upon the jury s return 8 in a month, they will again be voir dired to assure that the month has not 9 10 presented any challenges to their impartiality. Again, courts have broad discretion 11 in whether or not to grant a continuance, and under the circumstances, I find that 12 the scope of my lawful powers is not exceeded by granting the Municipality of 13 Dorado one month to contract the services of an attorney to take over trial 14 15 representation. See generally United States v. Pandozzi, 878 F.2d 1526, 1534 16 (1st Cir. 1989). 17 continuance. See Slappy v. Morris, 649 F.2d 718, 722 (9th Cir. 1981), cited in 18 And there is certainly no improper purpose in seeking the Morris v. Slappy, 461 U.S. at 11, n.4. 19 20 A large amount of judicial and litigation resources have been dedicated to 21 this case. Parties have filed proposed jury instructions and verdict forms, and one 22 plaintiff traveled from Okinawa where he is currently stationed, in order to testify 23 at trial. 24 Less than half a day remains for plaintiffs to rest their case. The attentive jurors have been taking notes during trial and I will provide about 100 25 26 pages of my own typewritten trial notes to both plaintiffs and substitute defense 27 counsel. If I cannot continue to preside at the trial, a substitute judicial officer will 28 1 CIVIL 09-1088 (JA) 6 2 3 4 5 continue to preside at trial upon certifying that he or she has familiarized himself 6 or herself with the record of the trial, and after determining that the case may be 7 completed without prejudice to the parties. See Fed. R. Civ. P. 63.2 Another 8 solution would be for me to be recalled from retirement for purposes of presiding 9 10 11 over and completing the trial. See 28 U.S.C. § 636(h).3 2 12 13 14 15 16 If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness. 17 18 19 20 21 22 23 24 25 26 27 28 Fed. R. Civ. P. 63. 3 (h) A United States magistrate judge who has retired may, upon the consent of the chief judge of the district involved, be recalled to serve as a magistrate judge in any judicial district by the judicial council of the circuit within which such district is located. Upon recall, a magistrate judge may receive a salary for such service in accordance with regulations promulgated by the Judicial Conference, subject to the restrictions on the payment of an annuity set forth in section 377 of this title or in subchapter III of chapter 83, and chapter 84, of title 5 which are applicable to such magistrate judge. The requirements set forth in subsections (a), (b)(3), and (d) of section 631, and paragraph (1) of subsection (b) of such section to the extent such paragraph requires membership of the bar of the location in which an 1 CIVIL 09-1088 (JA) 7 2 3 4 5 For the reasons set forth above, the motion to withdraw legal representation 6 is granted. The request to continue the trial setting is granted. Trial is reset for 7 Monday, April 4, 2011 at 9:00 A.M. The Municipality of Dorado is granted until 8 April 4, 2011 to contract the services of counsel who is to be ready to continue 9 10 11 with the trial on that date. At San Juan, Puerto Rico, this 8th day of March, 2011. 12 S/ JUSTO ARENAS Chief United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 individual is to serve as a magistrate judge, shall not apply to the recall of a retired magistrate judge under this subsection or section 375 of this title. Any other requirement set forth in section 631(b) shall apply to the recall of a retired magistrate judge under this subsection or section 375 of this title unless such retired magistrate judge met such requirement upon appointment or reappointment as a magistrate judge under section 361. 28 U.S.C. § 636(h).

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