Velez-Colon v. Caribbean Produce Exchange, Inc.

Filing 62

OPINION AND ORDER. GRANTED IN PART AND DENIED IN PART 40 Emergency MOTION for Sanctions filed by Caribbean Produce Exchange, Inc. Plaintiffs' request for voluntary dismissal is DENIED. Signed by Judge Salvador E Casellas on 12/8/2009.(LB)

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO J O S E CARLOS VELEZ-COLON Plaintiff v. Civil No. 08-1607 (SEC) C A R I B B E A N PRODUCE EXCHANGE, IN C . D e f e n d a n ts

O P I N IO N and ORDER 11 O n July 9, 2009, Plaintiff filed a "Notice of Voluntary Dismissal Without Prejudice 12 P u rs u a n t to FED. R. CIV. P. 41(a)(1)(A)(i). Docket # 50. According to Plaintiff, his request for 13 d ism is s a l stems from his inability to "tolerate or handle" opposing counsel's "disrespectful and 14 15 16 17 18 19 20 21 22 23 24 25 th e case be dismissed without prejudice. Despite the foregoing, Plaintiff also expressed his 26 b ru ta l behavior" against him. Id. at 1. According to Plaintiff, insofar as Defendant has not filed a n answer to the complaint, or a motion for summary judgment, he is entitled to dismissal w ith o u t prejudice as a matter of right. Plaintiff further notes that prior to filing the instant n o tic e , he sent an email to opposing counsel and "proposed a `fresh start' and subsequently p ro p o s e d to file a joint motion with the Court informing that [they] were able to resolve [their] d if f e re n c e s amicably," but Defendant's counsel denied his request. Id. at 1. O n e v e n d a t e , D e f e n d a n t filed a motion in opposition to Plaintiff's request for dismissal without prejudice, a v e rrin g that Plaintiff's notice is based on false statements, and is misleading to this Court. D o c k e t # 49. In support of said assertion, Defendant included the communications via email that to o k place on July 8, 2009, between themselves and Plaintiff. Upon reviewing the attached document, this Court notes that on July 7, 2009, at 11:21 p .m ., Plaintiff sent an email to Defendant proposing that they file a joint motion requesting that

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in te re s t in continuing his claims against CPE. After opposing counsels' rejection of said offer, P la in tif f responded, and informed opposing counsel that he would request that the motion for e n t r y of default be set aside, and that new summons be issued as to Guadalberto and Luis R o d rig u e z -R o d rig u e z . He continued noting that he "cannot dismiss with prejudice this action b e c a u s e several national authorities on the FCRA say that it is not clear if there is a permissible p u rp o s e to obtain a consumer report for business credit..." Docket # 49-2. Finally, Plaintiff " e n c o u ra g e d " Defendant to file an answer to the complaint, noting that if Defendants failed to d o so, he "might request dismissal without prejudice and [opposing counsel's] client will be

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u n a b le to recover...attorney fees." Plaintiff also stated that if Defendant did not file an answer b y July 10, 2009, he would "dismiss without prejudice at 1:00 p.m. and [he would] file a new c o m p la in t [on July 11, 2009] and arrange the immediate service to CPE." Id. Subsequently, P la in tif f noted "[t]his is not an abuse of the judicial process; it['s] an absolute legitimate right th a t I have." Id. This Court first notes that Defendant's motion to dismiss at Docket # 7, was properly c o n v e rte d to a motion for summary judgment. See Docket # 21. Thus Plaintiff is not entitled to re q u e st dismissal without prejudice under Rule 41 (a)(1)(A)(i), and instead must seek this C o u rt's leave for dismissal. As such, the instant "notice of voluntary dismissal" will be ruled u p o n as a motion for dismissal pursuant to Rule 41 (a)(2). Secondly, the impropriety of P la in tif f 's actions are blatant. Despite the absence of First Circuit case law on the issue, this c o u rt has held that "the semblance of judge-shopping...[] is a concern when a litigant d isc o n tin u e s a fray, only to start over again on another day." Vaqueria Tres Monjitas v. RiveraC u b a n o , 341 F.Supp. 2d 69, 71 (D.P.R. 2004) (citing Nat'l Treasury Em. Union v. IRS, 765

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F .2 d 1174, 1175 n. 5 (D.C. Cir. 1985). A court faced with such conduct "has the authority to a c t to preserve the integrity and control of its docket." Id. (citations omitted). Thus the abuse o f Rule 41, in order to harass the opposing party, or circumvent the court's orders, is highly u n e th ic a l, and sanctionable by this Court. Plaintiff is a third year law student at the University of Puerto Rico. Despite his e x p re ss io n s regarding his inexperience, he has filed a great number of pleadings, including a

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3 0 -p a g e memorandum of law in the instant action. Moreover, he has filed additional suits in this d istric t. Specifically, Plaintiff recently filed a case with this Court, which was assigned to the u n d e rs ig n e d (Civil No. 09-1179 SEC). On July 6, 2009, Plaintiff filed a notice of voluntary d ism is s a l without prejudice in said case, and re-filed a suit against said Defendant on the same d a y, even before this Court's judgment of dismissal was entered in Civil No. 09-1179 (SEC).

5 T h e re f o re , he is no stranger to manipulating this Court's procedural rules. Although he may 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 d e e m himself inexperienced, the First Circuit has held that law school students as pro se litig a n ts should be held to a higher standard than pro se novices. Specifically, the Appeals Court d ism is s e d as frivolous and malicious, a suit filed by a third year law student, after stating: th is is not a case involving an uneducated, naive plaintiff who may have in a rtis tic a lly stated a valid cause of action. . . . He comes before this Court w e a rin g the cloak of a pro se applicant, and seeks to extract from us the solicitude o rd in a rily afforded one appearing without counsel. But this should not shield him f ro m rebuke when merited. He is an intelligent, able and sophisticated litigant, w h o is no stranger to this Court. . . . Moreover, we are not to be manipulated by re s o u rc e f u l but meritless moves . . .[which] serve only to distract us from im p o rta n t judicial business. C a s tro v. United States, 584 F. Supp. 252 , 264 (1st Cir. 1984) (citing Raitport v. Chemical B a n k , 74 F.R.D. 128, 133 (S.D.N.Y. 1977) (citations omitted). Conduct unbecoming a lawyer is harshly viewed upon by courts. A law school student's s ta tu s as a pro se litigant does not shield herein Plaintiff from sanctions by this Court, especially in light of his flagrant disregard for this Court's integrity. Thus Plaintiff is sternly reprimanded f o r his conduct, and is warned that similar conduct in the future will be severely sanctioned. Conclusion B a s e d on the foregoing, Plaintiff's notice of voluntary dismissal is DENIED. IT IS SO ORDERED. S a n Juan, Puerto Rico, this 8th day of December, 2009. S /S a lv a d o r E. Casellas S a lv a d o r E. Casellas U .S . District Judge