Arroyo-Perez v. Demir Group International et al, No. 3:2009cv02231 - Document 104 (D.P.R. 2011)

Court Description: OPINION AND ORDER granting re 96 First MOTION to Continue Trial filed by Haygo Demir, Demir Group International Signed by Chief Mag. Judge Justo Arenas on 2/17/2011.(nydi)

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Arroyo-Perez v. Demir Group International et al 1 Doc. 104 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 5 EUNICE ARROYO-Pà REZ, 6 Plaintiff 7 v. 8 CIVIL 09-2231 (JA) 10 DEMIR GROUP INTERNATIONAL aka DGI GROUP; and HAYGO DEMIR aka HAYGO DEMIRIAN, 11 Defendants 9 12 13 OPINION AND ORDER 14 15 This matter is before me on Defendants Urgent Request to Continue Trial 16 filed on February 9, 2011. (Docket No. 96.) The case is now scheduled for trial 17 18 19 20 21 for March 7, 2011. That scheduling was made on August 20, 2010. (Docket No. 36.) RECENT PROCEDURAL BACKGROUND Shortly after the trial was scheduled, plaintiff moved to strike fourteen of 22 23 the defendants affirmative defenses to enter partial judgment on those defenses. 24 (Docket No. 38.) The defendants responded to the motion on September 2, 2010. 25 (Docket No. 40.) The motion to strike was rendered moot by the filing of an 26 27 amended answer to the complaint. Plaintiff moved for partial summary judgment 28 on four affirmative defenses on October 23, 2010. (Docket No. 46.) The 29 defendants filed a response to the motion for partial summary judgment and in Dockets.Justia.com 1 CIVIL 09-2231 (JA) 2 2 3 4 turn moved for partial summary judgment on November 22,2010. (Docket No. 5 66.) 6 summary judgment on December 9, 2010. 7 Plaintiff responded in opposition to the defendants motion for partial (Docket No. 70.) Then on December 29, 2010, the defendants moved for summary judgment. (Docket No. 8 9 76.) On January 10, 2011, I issued an opinion and order (Docket No. 78) 10 granting plaintiff s motion for summary judgment (Docket No. 46) and denying the 11 defendants motion for summary judgment on two defenses. (Docket No. 66.) 12 13 The defendants moved for reconsideration of the January 10, 2011 opinion 14 and order on January 18, 2011. 15 opposition to the motion for reconsideration on January 21, 2011. (Docket No. 16 (Docket No. 82.) Plaintiff responded in 91.) Plaintiff responded in opposition to the motion for summary judgment on 17 18 January 19, 2011. (Docket No. 83.) Also on that date the defendants filed a 19 counterclaim against plaintiff. (Docket No. 88.) Plaintiff moved to strike the 20 counterclaim and/or moved to dismiss the counterclaim on January 20, 2011. 21 22 (Docket No. 90.) The defendants then responded to the motion to dismiss the 23 counterclaim on February 4, 2011. (Docket No. 95.) Then, on February 9, 2011, 24 the defendants moved to continue the trial date. 25 (Docket No. 96.) Plaintiff opposed the motion for continuance on February 14, 2011. (Docket No. 99.) On 26 27 28 29 February 15, 2011, the defendants moved for leave to file a reply. (Docket No. 100.) That motion is granted. A supplemental motion to the urgent request to 1 CIVIL 09-2231 (JA) 3 2 3 4 5 6 7 continue trial was filed on the same date. (Docket No. 101.) Plaintiff filed a response to this motion on the following day. (Docket No. 102.) The defendants seek continuance of the trial in their 10-page motion for a myriad of reasons, especially newly discovered allegations that necessitate the 8 9 taking of additional depositions in foreign countries, specifically St. Maarten and 10 St. Thomas. One deposition, that of Ilianny Mera, cannot be completed until 11 February 21, 2011. A motion to compel documents remains pending, and 12 13 additional depositions must still be taken, including that of plaintiff and her 14 husband. There is a motion for summary judgment pending, as well as a motion 15 to dismiss counterclaim. Most importantly, the defendants seek a level playing 16 field at trial and must take depositions to counter Ms. Mera s testimony. 17 18 Notwithstanding the case having been aggressively litigated, see, e.g., Arroyo- 19 Pérez v. Demir Grp. Int l, 733 F. Supp. 2d 322 (D.P.R. 2010), and Arroyo-Pérez 20 v. Demir Grp. Int l, 733 F. Supp. 2d 314 (D.P.R. 2010), and the optimism at the 21 22 scheduling conference held in August, 2010 that the trial date of March could be 23 accomplished, the defendants stress that in hindsight, six and one-half months 24 was not enough to prepare for trial. I am reminded that the court should evaluate 25 each case on its own facts in determining whether a continuation of trial is 26 27 28 29 necessary. United States v. Rodríguez-Durán, 507 F.3d 749, 763 (1st Cir. 2007), (citing United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995)). 1 CIVIL 09-2231 (JA) 4 2 3 4 Plaintiff has filed a 14-page opposition arguing that the defendants provide 5 no legitimate basis for the motion for continuance. Plaintiff calls the motion an act 6 of desperation in the face of overwhelming evidence in support of plaintiff s claim. 7 Plaintiff also argues that the motion is a ploy to have the case assigned to a 8 9 different trial judge (since I am retiring on April 10, 2011), representing the worse 10 form of judge-shopping, since a new judge would have to fit the case into another 11 trial calendar. Plaintiff feels that the case was disproportionately litigated by the 12 13 defendants, forcing plaintiff s counsel to invest more than 500 hours in the case. 14 Stopping the case in its tracks would arguably cause an injustice. Plaintiff recites 15 the details of issues or non-issues with expected witnesses. Plaintiff stresses the 16 incredible hardship sending this case to another judge would entail. 17 18 The defendants supplement the motion to continue based upon a recently 19 discovered medical condition that requires surgery on the part of lead counsel. 20 The condition severely restricts his breathing and causes other problems. The 21 22 first available date for surgery on the surgeon s calendar is March 4, 2011, and 23 counsel would not be allowed to fly for ten days thence. (Docket No. 101.) 24 Plaintiff opposes the continuance under these added circumstances, suggesting 25 a number of alternatives which I will not repeat. 26 27 28 29 The (first) motion to continue the trial date is granted. (Docket No. 96.) Trial courts enjoy broad discretion when evaluating a motion for continuance. United States v. De Castro- 1 CIVIL 09-2231 (JA) 5 2 3 4 5 6 7 Font, 583 F. Supp. 2d 243, 244 (D.P.R. 2008) (citing Morris v. Slappy, 461 U.S. 1, 11 (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). Moreno-Pérez v. Toledo-Dávila, --- F. Supp. 2d ----, 2011 WL 503445, at *2 8 9 (D.P.R. Feb. 14, 2011.) 10 This case is the most recently filed of the cases I currently have scheduled 11 for trial and all cases have pending motions for summary judgment except for the 12 13 case which proceeded to trial on February 15, 2011 and is expected to go beyond 14 February 25, 2011. One case, filed in 2007, is awaiting a trial date on short 15 notice and also has a motion for summary judgment pending. Another case was 16 filed in 2008. It has always been my policy to resolve motions for summary 17 18 judgment before trial rather than to convert them to Rule 50(a) motions during 19 trial. I will rule on all pending motions in this case. Telephone calls to chambers 20 are not favored. Motions that are not consented to will always have 14 days for 21 22 opposite parties to respond. 23 SO ORDERED. 24 At San Juan, Puerto Rico, this 17th day of February, 2011. 25 26 27 28 29 S/ JUSTO ARENAS Chief United States Magistrate Judge

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