Otero-Torres et al v. Collazo-Rivera et al, No. 3:2009cv02006 - Document 52 (D.P.R. 2010)

Court Description: OPINION AND ORDER grating 44 Motion to Dismiss Counterclaim; finding as moot 16 MOTION for Default Entry; denying 49 Motion to Strike: 46 Response in Opposition to Motion. Settlement Conference set for 8/13/2010 10:00 AM in SEC's Chambers before Judge Salvador E Casellas.Signed by Judge Salvador E Casellas on 8/4/2010.(THD)

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Otero-Torres et al v. Collazo-Rivera et al Doc. 52 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 CARLOS A. OTERO-TORRES, et al Plaintiff 4 Civil No. 09-2006 (SEC) v. 5 6 FEDERICO COLLAZO-RIVERA, et al Defendants 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 OPINION AND ORDER Pending before the Court is Carlos A. Otero-Torres ( Plaintiff ) Motion to Dismiss (Docket # 39). Co-defendants Erasmo Collazo, Olga Rivera, and the Rivera-Collazo conjugal partnership (collectively Defendants ) filed a Response in Opposition thereto, to which Plaintiff proffered a Reply.1 After considering the pleadings and the applicable law, Plaintiff s Motion to Dismiss will be GRANTED. Factual & Procedural Background The relevant facts pertaining to the present Motion to Dismiss are straightforward. On October 21, 2005, Plaintiff filed a civil complaint against Defendants in the Puerto Rico Court of First Instance, Bayamón Part, Civil No. DKDP-2005-0623. The suit was brought under Articles 1802 and 1803 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, §§ 5141 & 5412 for damages resulting from an alleged shooting by Plaintiff s former employer and Codefendant Collazo-Rivera on October 23, 2004. The local court granted Plaintiff s motion to voluntarily dismiss said suit without prejudice, and judgment was entered on January 14, 2009. Defendants did not object to the dismissal without prejudice. Plaintiff alleges that he originally 23 24 25 1 26 The remaining co co-defendants Collazo-Rivera ( Collazo-Rivera ), Ecori Tranport, Inc., and Transportes Collazo-Rivera, Inc. did not join the counterclaim. Dockets.Justia.com 1 CIVIL NO. 09-2006 (SEC) 2 2 brought the suit in local court because he was not appraised of his right to bring a claim under 3 diversity jurisdiction, nor was he adequately advised by his prior counsel. 4 Regardless of the motivations for switching forums, on September 30, 2009, Plaintiff 5 filed the present action, and on March 2, 2010, Defendants answered and also filed a 6 counterclaim against Plaintiffs. The counterclaim asserts that Otero assaulted Erasmo Collazo, 7 and that Collazo-Rivera, Defendants son, was left with no other option than to turn his weapon 8 against Plaintiff. Defendants seek damages for pain, suffering, and emotional distress. 9 Plaintiff denies these allegations, and also argues that Defendants counterclaim is time10 barred, because they failed to file a compulsory counterclaim in the local court case, and thus 11 never tolled Article 1802 s one-year statue of limitations. 12 Standard of Review 13 Fed. R. Civ. P. 12(b)(6) 14 To survive a Rule 12(b)(6) motion, Plaintiffs well-pleaded facts must possess enough 15 heft to show that [they are] entitled to relief. Clark v. Boscher, 514 F. 3d 107, 112 (1 st Cir. 16 2008).2 In evaluating whether Plaintiffs are entitled to relief, the court must accept as true all 17 of their well-pleaded facts [and indulge] all reasonable inferences therefrom in the plaintiff s 18 favor. Twombly, 127 S. Ct. at 1964. The First Circuit has held that dismissal for failure to state 19 a claim is appropriate if the complaint fails to set forth factual allegations, either direct or 20 inferential, respecting each material element necessary to sustain recovery under some 21 actionable legal theory. Gagliardi v. Sullivan, 513 F. 3d 301, 305(1st Cir. 2008). Courts may 22 augment the facts in the complaint by reference to documents annexed to the complaint or fairly 23 24 25 26 2 FED . R. CIV . P. 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to allow the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). 1 CIVIL NO. 09-2006 (SEC) 3 2 incorporated into it, and matters susceptible to judicial notice. Id. at 305-306. However, in 3 judging the sufficiency of a complaint, courts must differentiate between well-pleaded facts, 4 on the one hand, and bald assertions, unsupportable conclusions, periphrastic circumlocution, 5 and the like, on the other hand; the former must be credited, but the latter can safely be 6 ignored. LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (quoting Aulson v. Blanchard, 7 83 F.3d 1, 3 (1st Cir.1996)); Buck v. American Airlines, Inc., 476 F. 3d 29, 33 (1 st Cir. 2007); 8 see also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). Thus Plaintiffs must rely in more 9 than unsupported conclusions or interpretations of law, as these will be rejected. Berner v. 10 Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 11 (1st Cir. 1988)). 12 Applicable Law and Analysis 13 The limitations period for actions brought pursuant to Article 1802 is one year, as 14 established by Article 1868 of the Civil Code of Puerto Rico. See P.R. Laws Ann. tit. 31, § 15 5298(2). Furthermore, [t]hat period ordinarily begins to run at the time that the aggrieved party 16 knows (or should have known) of both his injury and the identity of the party who caused it. 17 Gonzalez Figueroa v. J.C. Penney Puerto Rico, Inc., 568 F.3d 313, 318 (1 st Cir. 2009); see also 18 Montañez v. Hosp. Metropolitano, 157 P.R. Dec. 96, 106 (2002). The term to sue then begins 19 to run on the day after the claim accrues. 20 In the case at hand, the incident giving rise to the counterclaim was a violent 21 confrontation, which ended traumatically with Collazo-Rivera shooting Otero. Defendants have 22 alleged that Otero s aggression caused them pain and suffering, as well as physical injuries. 23 Nevertheless, no allegations have been made that their damages were somehow latent for any 24 period of time before being discovered, or that the incident carried on creating further damages 25 that were not discovered until a future date. Therefore, this Court holds that the effective date 26 1 CIVIL NO. 09-2006 (SEC) 4 2 of accrual for any damages claims must be October 23, 2004, the date of the incident with 3 Otero. 4 Accordingly, under Article 1802, in the absence of an act interrupting or tolling the 5 limitations period, it would have ended on October 23, 2005. However, Plaintiff sued in state 6 court on October 21, 2005, effectively tolling his claims. The suit also appears to have tolled 7 Defendants counterclaims, but the facts of the case are not so simple. 8 Under Puerto Rico law, the limitation of tort actions is not a procedural, but a 9 substantive matter . . . covered by the Civil Code. Febo Ortega v. Tribunal Superior, 102 10 D.P.R. 405, 2 P.R. Offic. Trans. 506 (1974). However, Febo clearly adopted the Spanish Civil 11 Code doctrine that, the interruption arising from the filing of a complaint also favors the 12 defendant conterclaimant when his action derives from the same facts that gave rise to the 13 original complaint. Id. The reasoning behind this is that, as a limitations period runs, the 14 defendant might believe the plaintiff has lost interest in the matter and not file a claim. Should 15 the filing of a complaint not toll the period for both parties, plaintiffs could take advantage of 16 this situation by waiting until the end of the limitations period to file, leaving defendants with 17 no right to assert counterclaims but an obligation to defend themselves against plaintiffs 18 allegations. The Supreme Court of Puerto Rico found that allowing such a practice would 19 offend common conceptions of justice and lead to no social utility. Id. 20 The Febo holding appears to favor Defendants, but the facts in the present case are 21 markedly different from those considered in said decision. As discussed above, the present 22 claim was filed before the Commonwealth courts in 2005, but no counterclaim was proffered 23 until March of this year. Defendants are benefitted by the tolling of their claims when plaintiffs 24 first file suit, but Puerto Rico Rule of Civil Procedure 11.1, governing compulsory 25 counterclaims, provides for preclusion of these claims if they are not plead in the answer to the 26 complaint or in a timely fashion. To wit, Rule 11.1 states: 1 CIVIL NO. 09-2006 (SEC) 5 2 5 A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. 6 (Official translation).3 This district has concluded that [t]he preclusion covers those issues 7 actually litigated and adjudicated and extends to those issues which could have been litigated 8 and adjudicated in the previous suit. R-G Financial Corp. V. Vergara-Nunez, 381 F.Supp. 2d 9 1, 4 (D.P.R. 2005); see also Del Carmen Tirado v. Department of Education, 296 F.Supp.2d. 10 127, 130 (D.P.R. 2003). Furthermore, it is only logical to conclude that failure to file a timely 11 counterclaim would reactivate the limitations period. 3 4 12 Here, the parties and claims are identical to those which engendered the 13 Commonwealth action first brought in 2005. Therefore, this Court must conclude that because 14 Defendants failed to exercise their right to file a compulsory counterclaim in the first 15 Commonwealth court action, said counterclaim is now precluded. After several years of 16 inaction, and a change of forum, Defendants have undoubtedly lost their right to counterclaim 17 whether through time-bar, or equity. It is too late in the day for the interests of justice to favor 18 Defendants claims. 19 Conclusion 20 Based on the foregoing, Plaintiff s motion to dismiss is GRANTED. Defendants 21 counterclaim is DISMISSED with prejudice. Judgement shall be entered accordingly. 22 IT IS SO ORDERED. 23 San Juan, Puerto Rico, this 4 th day of August, 2010. S/Salvador E. Casellas Salvador E. Casellas 24 25 3 26 The federal rule is nearly identical. Pursuant to Fed. R. Civ. P. 13(a)(1)(A), [a] pleading must state as a counterclaim any claim that ... the pleader has against an opposing party if the claim[ ] arises out of the transaction or occurrence that is the subject matter of the opposing party's claim[.] 1 CIVIL NO. 09-2006 (SEC) 6 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 U.S. Senior District Judge

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