Crispin-Taveras v. Municipality of Carolina, et al

Filing

OPINION issued by Kermit V. Lipez, Appellate Judge; Eugene E. Siler, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [09-2625, 09-2626]

Case: 09-2625 Document: 00116212884 Page: 1

Date Filed: 05/25/2011

Entry ID: 5553097

United States Court of Appeals
For the First Circuit
Nos. 09-2625; 09-2626
YONATTA CRISPIN-TAVERAS,
Plaintiff, Appellee,
v.
MUNICIPALITY OF CAROLINA; KARIMAR PERAZA-DELGADO; CAPTAIN RUBEN
MOYENO, Director of the Special Unit; LIEUTENANT JOHN
CRUZ-GONZALEZ; SERGEANT LUIS DIAZ-RUIZ,
Defendants, Appellants,
JOSE C. APONTE-DALMAU, as Mayor of the Municipality of Carolina;
COLONEL CARLOS HADDOCK, individually and in his capacity as
Commissioner of the Municipality of Carolina Police Department;
VANNESA CARMONA; ALFREDO RIVERA-SUAREZ; JOHN DOE 1-10; INSURANCE
COMPANY D, E, F,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lipez, Siler,* and Howard,
Circuit Judges.
Johanna M. Emmanuelli Huertas and Jorge Martinez-Luciano on
brief for appellant Municipality of Carolina.
Angel E. Rotger-Sabat on brief for appellants Karimar PerazaDelgado, Captain Rubén Moyeno, Lieutenant John Cruz-González, and
Sergeant Luis Díaz-Ruiz.

*

Of the Sixth Circuit, sitting by designation.

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Mauricio Hernandez Arroyo on brief for appellee.

May 25, 2011

Entry ID: 5553097

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SILER,

Circuit

Judge.

Date Filed: 05/25/2011

Entry ID: 5553097

Plaintiff-Appellee

Yonatta

Crispin-Taveras ("Crispin") brought a civil rights action against
Defendants-Appellants Municipality of Carolina (the "Municipality")
and various Municipality police officers.

The district court

defaulted the defendants for discovery violations.

After a jury

trial on damages, the district court entered a judgment in favor of
Crispin in the amount of $75,000.

The Municipality and the

individual officers now appeal, challenging the default sanction,
the

admission

of

psychological

treatment

evidence,

instructions, and the sufficiency of service of process.

the

jury

For the

reasons stated below, we affirm.
I. BACKGROUND
A.

Factual Background
During a baseball game between the Puerto Rico national

team and the Dominican Republic national team held at the Roberto
Clemente Stadium in Carolina, Puerto Rico, in 2007, a spectator
known as "Oscar" was celebrating in the aisles with a Dominican
flag. The Carolina Municipal Police Department intervened in order
to eject Oscar from the stadium.
Crispin, a U.S. Marine from the Dominican Republic, was
at the game wearing a hat with the insignia of the Dominican flag.
He became involved in the confrontation and alleged that the police
officers violently grabbed and removed him from the stands, struck
him in the head with a metal baton, and then handcuffed and
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detained him in the stadium detention center.

Entry ID: 5553097

He was eventually

transported to a hospital where he received stitches to close a
wound to his head.
Both sides faced criminal charges.

Crispin was charged

with aggravated assault and destruction of property, but the
charges were dismissed.
Cruz-González

Three of the officers, Lieutenant John

("Cruz"),

Sergeant

Luis

Díaz-Ruiz

("Díaz"),

and

Officer Karimar Peraza-Delgado ("Peraza") were indicted on federal
civil rights violations, but were acquitted.
B.

Procedural Background
On October 25, 2007, Crispin filed a civil rights action

in the District of Puerto Rico against the Municipality, the mayor
of

the

Municipality,

an

association

of

Municipality

police

officers, two Commonwealth of Puerto Rico police officers, and
three insurance companies.

He also named as defendants various

individual Municipality police officers, including Captain Rubén
Moyeno

("Moyeno"),

Cruz,

Peraza,

and

Díaz

(collectively

the

"individual defendants").
1.

Service of Process

On April 3, 2008, Moyeno filed a motion to dismiss, and
Cruz, Díaz, and Peraza filed a motion to join it.

They alleged

they were served with the summons and complaint on February 28 and
29, 2008, which was more than 120 days after the filing of the
complaint in violation of Federal Rule of Civil Procedure 4(m).
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Crispin responded that dismissal was not required because there was
no prejudice and Rule 4(m) allows the district court to direct
service by a specified time, which was now unnecessary because the
defendants were served.

The district court denied the motions.

The Municipality filed an answer on September 4, 2008,
and the individual defendants filed an answer on September 26,
2008.

The individual defendants later filed a motion to withdraw

their answer because they alleged that Cruz, Díaz, and Peraza were
included in the answer by "human error."

The district court

granted the motion and allowed the withdrawal of their answer.
In February 2009, Peraza and Cruz filed a motion to
dismiss for improper service.

They alleged that Crispin failed to

effectuate personal service and failed to do so within the time
afforded by Rule 4(m).

In opposition, Crispin argued that the

defendants did not challenge the method of service in their April
2008 motion to dismiss.

He further argued that service was

properly executed upon an attorney in the Municipality’s legal
department.
2.

The district court denied the motion.
Discovery Disputes

In December 2008, Crispin filed a motion to compel,
alleging that the individual defendants had failed to produce Rule
26 disclosures or answer Crispin's interrogatories or requests for
production.

The individual defendants opposed the motion, arguing

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that they were not aware of any unproduced documents. The district
court denied Crispin's motion without prejudice.
After a stay of the case during the pendency of the
federal

criminal

proceedings,

scheduling conference.

the

district

court

See Fed. R. Civ. P. 16.

conducted

a

During the

conference, the district court ordered the defendants to answer all
pending written discovery requests within ten days and ordered
discovery to be completed by June 30, 2009.

Moyeno sent his Rule

26 initial disclosures to Crispin the day after the conference.
On June 11, 2009, Crispin filed a motion for sanctions
against the Municipality, Cruz, Díaz, and Peraza, alleging they had
failed to provide Rule 26 disclosures or respond to discovery
requests.

The district court conducted a telephone conference on

June 24, 2009, and decided to hold the motion for sanctions in
abeyance. Following the conference, the court issued the following
ruling:
Rule 26 Meeting Report due by 7/3/2009.
I
have noted the content of [Crispin's motion
for sanctions] and make reference to the
directions given by me during the telephone
conference held today.
If any of the
mentioned parties have failed to fully comply
with Rule 26 disclosures, then their last
clear chance for compliance is the date set
herein. Otherwise, sanctions will be imposed
including striking evidence not included in
Rule 26 disclosures. Be guided accordingly.

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On June 24, 2009, Crispin moved for entry of default
against

Cruz,

Díaz,

and

Peraza

for

their

failure

to

file

a

responsive pleading.
Crispin also filed a motion on June 30, 2009, seeking
additional time for his expert report because Cruz, Díaz, and
Peraza

never

answered

production of documents.

his

interrogatories

or

requests

for

Another reason he sought additional time

was because the Municipality allegedly failed to comply with its
continuing Rule 34 obligations.

See Fed. R. Civ. P. 26 & 34.

During the depositions of the officers, Crispin learned that the
Municipality's

Internal

investigation.

Affairs

Department

was

conducting

an

Crispin alleged that, besides a two-page sworn

statement by Díaz, the Municipality did not produce any documents
arising out of this investigation. The district court gave Crispin
an extension to produce the expert report.
On July 4, 2009, Crispin filed a motion "in compliance
with" the district court's order holding Crispin's June 11, 2009
motion for sanctions in abeyance.

Crispin requested numerous

sanctions, including the imposition of a default judgment.
The defendants never filed an opposition to Crispin’s
June 11, 2009 motion for sanctions.

On July 8, 2009, the district

court found the Municipality, Cruz, Díaz, and Peraza in default,
concluding:
record

Having
examined
Defendants'
track
of
non-compliance
with
discovery
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obligations, and considering the averments
contained in [Crispin's motions], the court
ORDERS as follows:
Defendants Municipality of Carolina,
Karimar Peraza-Delgado, John Cruz-González,
and Luis Díaz-Ruiz will face sanctions for
their failure to comply with discovery
obligations. Plaintiff's factual allegations
are deemed admitted, Defendants' defenses and
pleadings are stricken, and a liability
default finding is made.
The Municipality filed a motion for reconsideration.

It

alleged it sent initial Rule 26 disclosures and produced all
documents in its possession.

In support, it attached a list of the

exhibits it produced and a copy of its initial Rule 26 disclosures.
Cruz, Díaz, and Peraza joined and supplemented the Municipality's
motion.

They alleged that their default was not willful because

their DOJ attorney withdrew, leaving them without counsel and
unable to respond to the motion for sanctions.
Crispin filed a "second motion for sanctions" against
Moyeno, Puerto Rico Police Officers Vanessa Carmona and Alfredo
Rivera-Suárez,
Haddock.

He

and

Carolina

alleged

they

Police
had

not

Commander,
complied

Colonel
with

discovery requests or produced Rule 26 disclosures.

Carlos

outstanding
Moyeno never

filed a response.
The district court ordered Crispin's counsel to file a
list of outstanding discovery owed to Crispin by each defendant,
and Crispin did so two days later.

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The district court then granted Crispin's second motion
for sanctions as to the other defendants, including Moyeno.

It

struck their pleadings and entered a default for their failure to
provide timely discovery.

The district court also denied the

Municipality’s motion for reconsideration of the default sanction.
3.

Trial

A jury trial on damages commenced in October 2009.
Before

and

introduction

during
of

trial,

evidence

the

Municipality

concerning

objected

Crispin's

to

the

psychological

treatment on the grounds that Crispin failed to provide all of his
medical records during discovery.

Despite Crispin's failure to

provide all of his medical records, the Municipality was able to
acquire Crispin’s medical records by subpoena.
The district court did not allow Crispin to present any
evidence that he did not provide to the Municipality.

On the other

hand, the district court permitted the Municipality to use all of
the medical records that it had acquired on its own by subpoena.
The Municipality proposed a lengthy jury instruction on
causation, but the district court declined to give the proposed
instruction.

The jury rendered a verdict in favor of Crispin, and

against the Municipality in the amount of $35,000, Moyeno in the
amount of $10,000, Cruz in the amount of $10,000, Peraza in the

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amount of $10,000, and Díaz in the amount of $10,000.1

Entry ID: 5553097

This appeal

followed.
II.
A.

ANALYSIS

Service of Process
The individual defendants argue that they were never

properly served with process under Federal Rules of Civil Procedure
4(e) and (m) and, as a result, the judgment should be reversed.
The district court's decision regarding dismissal for insufficient
service of process is reviewed for abuse of discretion.

See

Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 106 (1st Cir.
2008).
Federal Rule of Civil Procedure 4(m), which governs the
timing of service, provides,
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.
Federal Rule of Civil Procedure 12 allows a party to file
a motion to dismiss for insufficient service of process.

This

motion "must be made before pleading if a responsive pleading is
allowed."

Fed. R. Civ. P. 12(b).

1

The jury did not assess damages against Haddock, Carmona, and
Rivera-Suárez.
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"[A] party that makes a motion under [Rule 12] must not
make another motion under this rule raising a defense or objection
that was available to the party but omitted from its earlier
motion."

Fed. R. Civ. P. 12(g)(2).

circumstances results in waiver.

Omitting a defense under these
Fed. R. Civ. P. 12(h)(1)(A);

Chute v. Walker, 281 F.3d 314, 319-20 (1st Cir. 2002).
Moyeno filed a motion to dismiss for improper service
under Rule 4(m) on April 3, 2008, and Cruz, Díaz, and Peraza filed
a motion to join Moyeno’s motion on April 14, 2008.

These motions

were filed before their responsive pleadings and thus were timely.
In their motions, the individual defendants challenged
the timing of the service of process.

Crispin's complaint was

filed on October 25, 2007, and therefore service of process was due
on or before February 22, 2008.

See Fed. R. Civ. P. 4(m).

The

individual defendants were not served until February 28 and 29,
2008.

Thus, the individual defendants were served over 120 days

after the filing of the complaint in violation of Rule 4(m).
The problem for the individual defendants is that, when
they filed these initial motions, they admitted that they were
served and challenged only the timing of the service.2

2

(DE 8

Had the individual defendants not admitted they were served,
they might have prevailed because the service was improper.
Crispin attempted to serve the individual defendants by delivering
a copy of the summons and complaint to an attorney in the
Municipality’s legal department.
This method of service was
effective only as to the official-capacity claims, but it was not
effective as to the individual-capacity claims. See Perez-Sanchez,
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("Ruben Mo[y]eno Cintron . . . w[as] served with summons on
February 29, 2008.")); (DE 9 ("On February 28, 2008, the appearing
defendants, [Cruz, Díaz, and Peraza], were served with summons and
a copy of the Amended Complaint . . ..")).

A district court is not

required to dismiss a defendant when service is not made within the
120-day deadline.

See Fed. R. Civ. P. 4(m).

The district court

also has the option to "order that service be made within a
specified

time."

Id.

Given

that

the

individual

defendants

admitted in their motion to dismiss that they were served on
February 28 and 29, 2008, the district court's denial of the motion
was

effectively

a

February 29, 2008.

ruling

that

service

could

be

performed

by

This decision was within the district court’s

discretion under Rule 4(m).
The individual defendants' later motion challenging the
method of service does not help them.

This motion was filed on

February 19, 2009, almost a year after the alleged service of
process.

By this time, it was too late.

The individual defendants

had already sought dismissal for improper service in April 2008.
They could have objected to the method of service at that time.
Their failure to do so means their objection to the method of
service was waived.

See Fed. R. Civ. P. 12(g)(2); Fed. R. Civ. P.

12(h)(1)(A); SEC v. Beisinger Indus. Corp., 552 F.2d 15, 20 (1st
Cir. 1977) (holding that insufficient service defense was waived

531 F.3d at 106.
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where the defendants' initial motion to dismiss alleged only that
service was impossible, not that service was improperly effectuated
under Rule 4).
B.

Default
Appellants argue the record does not support the district

court's imposition of a default judgment.

The district court's

imposition of a default judgment as a sanction is reviewed for
abuse of discretion.

Remexcel Managerial Consultants, Inc. v.

Arlequin, 583 F.3d 45, 51 (1st Cir. 2009).
Federal Rule of Civil Procedure 37(b) gives the district
court a "veritable arsenal of sanctions" for failure to comply with
discovery

orders,

including

designating

facts

as

established,

striking pleadings, or rendering a default judgment.

Malot v.

Dorado Beach Cottages Assocs., 478 F.3d 40, 44 (1st Cir. 2007).
Although a "drastic sanction," "[t]he entry of a default judgment
provides a useful remedy when a litigant is confronted by an
obstructionist

adversary

and

plays

a

constructive

role

in

maintaining the orderly and efficient administration of justice."
Remexcel Managerial Consultants, 583 F.3d at 51 (citations and
internal quotation marks omitted).
When faced with a motion for sanctions, the non-moving
party must file an opposition.

District of Puerto Rico Local Rule

7(b) states, "Unless within fourteen (14) days after the service of
a motion the opposing party files a written objection to the

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motion, incorporating a memorandum of law, the opposing party shall
be deemed to have waived objection." A party’s failure, on account
of ignorance or neglect, to timely oppose a motion in the district
court constitutes forfeiture.

See Rivera-Torres v. Ortiz Velez,

341 F.3d 86, 102 (1st Cir. 2003).
The Municipality, Cruz, Díaz, and Peraza never filed a
response to Crispin's June 11, 2009 motion for sanctions.

The

district court gave them until June 29, 2009, to file a response to
the motion.

Although the district court held the motion in

abeyance on June 24, 2009, this did not relieve the parties of
their obligation to respond.

Indeed, after the motion was held in

abeyance, Crispin continued to file motions alleging the defendants
were not complying with discovery obligations.

When the district

court defaulted the Municipality, Cruz, Díaz, and Peraza on July 8,
2009, they had still not responded.
for

reconsideration

allegations.

that

the

It was not until their motion

defendants

disputed

Crispin’s

A motion for reconsideration of a sanction order,

however, cannot revive claims that were forfeited by failing to
timely oppose the original motion.

See Marks 3 Zet-Ernst Marks

GmBh & Co. KG v. Presstek, Inc., 455 F.3d 7, 15 (1st Cir. 2006).
Accordingly, the Municipality, Cruz, Díaz, and Peraza forfeited any
objection to Crispin’s motion for sanctions.3

3

See id.

There was at least a forfeiture here and therefore we will
proceed under a forfeiture analysis. Given the local rule and the
knowledge the parties had, they may have actually waived their
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Similarly, Moyeno never responded to Crispin’s July 16,
2009 motion for sanctions and therefore forfeited any objection to
the motion.

The district court gave Moyeno until August 3, 2009,

to file a response. When the district court sanctioned Moyeno with
default on August 11, 2009, Moyeno had not filed an opposition.
Because appellants forfeited their argument by failing to
raise it in a timely manner, we review only for plain error.

See

Rivera-Torres, 341 F.3d at 102. "We apply the plain error doctrine
'stringently'

in

civil

cases,"

Gaydar

v.

Sociedad

Instituto

Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15, 23 (1st
Cir. 2003) (quoting Trull v. Volkswagen of Am., Inc., 320 F.3d 1,
6 (1st Cir. 2002)), and we are not persuaded that this is "one of
those rare occasions when the standard is met," Diaz-Fonseca v.
Puerto Rico, 451 F.3d 13, 36 (1st Cir. 2006).
By not filing responses, the defendants never informed
the

district

obligations.

court

how

Without

they
any

complied

opposition,

with

their

Crispin's

discovery
assertions

regarding the inadequacy of the defendants' responses could be
credited

by

the

district

court.

While

default

was

a

harsh

sanction, it was brought on by appellants' persistent failure to
comply with the court's discovery orders and was preceded by the
court's "clear advance warning."
F.3d 38, 48 (1st Cir. 2000).

Goya Foods, Inc. v. Unanue, 233

There was no abuse of discretion—let

objection.
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alone plain error—in the district court’s decision to sanction
appellants in this manner.

See Remexcel Managerial Consultants,

583 F.3d at 51.
C.

Psychological Testimony
Appellants argue that the district court should have

excluded testimony of Crispin's psychological treatment because
Crispin

failed

to

provide

all

of

his

medical

records

during

discovery.
"We review the district court's decisions to admit or
exclude evidence for abuse of discretion."
Jadlowe, 628 F.3d 1, 23 (1st Cir. 2010).

United States v.

Federal Rule of Civil

Procedure 37(c)(1) states, "If a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless."
Crispin

identified

his

treating

physicians

in

his

discovery materials, and therefore Rule 37(c)(1) does not preclude
the admission of their testimony. Although Crispin did not provide
all of his medical records during discovery, the admission of the
evidence was harmless to the Municipality because it was able to
obtain the records on its own using a subpoena and the district
court did not allow Crispin to use any records that he failed to
provide to it.

Accordingly, there was no abuse of discretion in

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the

admission

of

evidence

Date Filed: 05/25/2011

regarding

Crispin's

Entry ID: 5553097

psychological

treatment.
D. Jury Instruction on Causation
Appellants argue that the district court's failure to
give the Municipality's proposed jury instruction on causation was
reversible error.
“The

trial

court's

refusal

to

give

a

particular

instruction constitutes reversible error only if the requested
instruction was (1) correct as a matter of substantive law, (2) not
substantially incorporated into the charge as rendered, and (3)
integral to an important point in the case.”

White v. N.H. Dep't

of Corr., 221 F.3d 254, 263-64 (1st Cir. 2000) (quoting United
States v. DeStefano, 59 F.3d 1, 2 (1st Cir. 1995)).
The Municipality's argument fails at prong two because
the jury was adequately instructed on causation.

See id.

The

district court explained, "Any award you may enter in this case
must

be

based

on

the

evidence

and

must

be

based

on

your

dispassionate analysis of the extent of the injuries, if any,
sustained by the plaintiff as a result of any defendant's wrongs,
if any."

(emphasis added).

The district court also instructed

that damages must be found by a preponderance of the evidence and
that "the mere fact that I am discussing the issue of damages
doesn't mean that you have to find damages."
adequately

informed

the

jury

that

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Crispin

These instructions
must

prove

the

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defendants' actions caused the damages and that damages should not
be presumed.

Thus, the district court did not err in refusing to

give the Municipality's requested instruction.
AFFIRMED.

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