Mercado-Santoni et al v. Hospital Buen Samaritano, Inc., No. 3:2009cv01829 - Document 41 (D.P.R. 2010)
Court Description: OPINION AND ORDER granting 29 MOTION to dismiss. We dismiss Plaintiff's claims against HBS. We ORDER Plaintiff to show cause, on or before October 12, 2010, as to why we should not dismiss for the failure to identify and serve unknown defendants. Show Cause Response due by 10/12/2010.Signed by Chief Judge Jose A Fuste on 10/4/2010.(mrj)
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Mercado-Santoni et al v. Hospital Buen Samaritano, Inc. 1 2 3 4 Doc. 41 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO MARCOS MUÑÍZ-MERCADO, 5 Plaintiff, 6 v. 7 Civil No. 09-1829 (JAF) HOSPITAL BUEN SAMARITANO, et al., 8 Defendants. 9 OPINION AND ORDER 10 Plaintiff, Marcos Muñíz-Mercado, brings this diversity action for medical malpractice 11 under Articles 1802 and 1803 of the Puerto Rico Civil Code, 31 L.P.R.A. §§ 5141–5142 (1999), 12 on his behalf and as successor in interest to Isolina Mercado-Santoni, against Hospital Buen 13 Samaritano, Inc. (“HBS”) and various unknown defendants. (Docket No. 1.) HBS moves for 14 summary judgment. (Docket No. 29.) 15 We grant a motion for summary judgment “if the pleadings, the discovery and disclosure 16 materials on file, and any affidavits show that there is no genuine issue as to any material fact 17 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A factual 18 dispute is “genuine” if it could be resolved in favor of either party and “material” if it potentially 19 affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 20 2004). Dockets.Justia.com Civil No. 09-1829 (JAF) -2- 1 The movant carries the burden of establishing that there is no genuine issue as to any 2 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The movant does not need 3 to produce evidence to prove the absence of a genuine issue of material fact but may instead 4 point to a lack of evidence supporting the nonmovant’s case. Id. In evaluating a motion for 5 summary judgment, we must view the record in the light most favorable to the nonmovant, and 6 we must consider the entire record of admissible evidence. See Reeves v. Sanderson Plumbing 7 Prods., 530 U.S. 133, 150–51 (2000). “Once the moving party has made a preliminary showing 8 that no genuine issue of material fact exists, the nonmovant must produce specific facts, in 9 suitable evidentiary form, to establish the presence of a trialworthy issue.” Clifford v. Barnhart, 10 449 F.3d 276, 280 (1st Cir. 2006) (internal quotation marks omitted). The nonmovant “may not 11 rely merely on allegations or denials in its own pleading; rather, its response must . . . set out 12 specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). Local Civil Rule 13 56(b) requires a movant to supplement his summary judgment motion with a supporting 14 statement of material facts. The facts in this statement are deemed admitted unless properly 15 controverted with specific citations to the record. See L. Cv. R. 56(e). 16 HBS moved for Summary Judgment on August 30, 2010, arguing that Plaintiff failed to 17 produce an expert witness report under Federal Rule of Civil Procedure 26(a)(2)(b) to establish 18 medical malpractice and pointing to its own expert’s opinion that the treatment received by 19 Isolina Mercardo-Santoni did not fall below minimum standards of care. (See Docket No. 29- 20 3.) Civil No. 09-1829 (JAF) 1 -3- Federal Rule of Civil Procedure 56(c)(1)(B) clearly states that an opposition to summary 2 judgment must be filed within twenty-one days of service of the summary judgment motion. 3 As of today’s date, Plaintiff has neither responded to HBS’s motion, nor requested an extension 4 of time to file such a response. HBS has fulfilled its burden of pointing to a lack of evidence to 5 establish medical malpractice. In light of both the complete absence of evidence presented by 6 Plaintiff and our duty to accept as true all material facts that have not been properly 7 controverted, we find no genuine issue of material fact exists to require a trial. 8 As to the unnamed insurance companies captioned as Defendants, over a year has passed 9 since the filing of this case and Plaintiff has failed to identify or serve these Defendants. We 10 may dismiss Plaintiff’s claims against these unknown defendants unless Plaintiff shows good 11 cause for his delay. See Fed. R. Civ. P. 4(m). 12 For the foregoing reasons, we hereby GRANT HBS’ motion for summary judgment. 13 (Docket No. 29). We dismiss Plaintiff’s claims against HBS. We ORDER Plaintiff to show 14 cause, on or before October 12, 2010, as to why we should not dismiss for the failure to 15 identify and serve unknown defendants. 16 IT IS SO ORDERED. 17 San Juan, Puerto Rico, this 4 th day of October, 2010. 18 19 20 s/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge
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