De-Jesus-Sanchez v. C.P.G. Ashford Avenue, L.P.S.E. et al

Filing 41

ORDER denying 39 request for certification under 28 U.S.C. Section 1292(b) contained in Motion for Leave to Appeal. Signed by Judge Carmen C. Cerezo on 5/18/11. (mmd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

RAMON DE JESUS
Plaintiff
vs

CIVIL 09-1665CCC

C.P.G. ASHFORD AVENUE, L.P., S.E.;
RADISSON AMBASSADOR PLAZA
HOTEL & CASINO
Defendants
ORDER
On April 18, 2011 the Court issued an Opinion and Order (docket entry 35) denying
defendants’ Motion for Summary Judgment based on the fact that plaintiff failed to state a
cause of action under Title VII. The cause of action that the summary judgment referred to
were contained in a pro-se complaint filed by plaintiff who was subsequently represented by
counsel who never explained why the pro-se complaint was not amended. In his opposition
to the Motion for Summary judgment plaintiff, represented by counsel, admitted that he had
“brought his action pursuant to the wrong statute.” To that end, the Court in its Order
denying summary judgment, observed:
. . . It was not until he filed the opposition that plaintiff finally admitted that he
had erred by invoking Title VII. He correctly contends that, this
notwithstanding, his factual allegations support a retaliation claim under ADA
and that he had previously filed administrative claims against defendants for
such conduct.
Defendants’ acknowledge in their statement of uncontested material
facts (docket entry 27), at ¶¶ 8-10, that plaintiff’s administrative claims were
made pursuant to the ADA. Therefore, notwithstanding plaintiff’s failure to
timely correct the error, defendants have known, since notification of the
administrative charges, the actual cause of action against them based on
retaliation under the ADA. They have not been prejudiced by this error.
Although the dispositive motion was denied, plaintiff was economically sanctioned
and defendants were requested to file a motion for costs and attorney’s fees incurred in the
preparation of their motion for summary judgment. Pending before the Court is such a

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Motion (docket entry 37), filed on April 20, 2011, in which defendants request an award of
$3,369.50 in attorney’s fees and $439.00 in costs.
Defendants have also filed a Petition for Leave to Appeal (docket entry 39) requesting
that the Court issue a 28 U.S.C. §1292(b) certification for an interlocutory appeal. Having
considered defendants’ discussion of the four requisites of appealability established in Boreri
v. Fiat S.P.A., 763 F.2d 17, 21 (1st cir. 1985), the Court concludes that defendants have not
established requisites 1, 3 or 4 set forth therein. The order does not involve an issue
essentially unrelated to the merits of the main dispute, since what it resolves is that,
although incorrectly identified as a Title VII retaliation action, the complaint survives as a
retaliation claim under the ADA. The order goes to define the very nature of the controversy
set forth in the pro-se complaint. The order does not involve a right incapable of vindication
on appeal from final judgment. Defendants aver otherwise, at p. 3 of their petition, that they
will be forced to defend themselves from a claim not properly raised in the complaint. To
start with, defendants were vindicated regarding the situation related to the claim that was
not properly raised in the complaint. Economic sanctions were imposed, precisely because
the pro-se complaint misidentified the applicable statutory provision.

However, the

necessary factual allegations were included in the pro-se complaint in support of an ADA
retaliation claim. Additionally, plaintiff had previously filed administrative claims pursuant to
the ADA against these defendants for that same conduct. That movants will have to defend
themselves does not point to a right incapable of vindication on appeal from final judgment.
The Court’s order places them in the situation of any other defendant whose motion for
summary judgment is denied. Finally, the order does not, by any means, involve an
important and unsettled question of controlling law. Rather, it is merely a question of the
proper exercise of the Court’s discretion in ruling on the merits, or lack thereof, of a
dispositive motion. Also, in its discretion, the Court imposed costs and attorney’s fees upon
plaintiff’s attorney, not upon plaintiff, for his inexcusable neglect in failing to acknowledge

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that the factual allegations of his client’s pro-se complaint belonged within ADA retaliation
framework, not a Title VII matter. That was strictly a legal matter that the attorney should
have corrected in a timely amendment.
For the reasons stated, defendants’ request for certification under 28 U.S.C. §1292(b)
contained in their Petition for Leave to Appeal (docket entry 39) is DENIED.
SO ORDERED.
At San Juan, Puerto Rico, on May 18, 2011.

S/CARMEN CONSUELO CEREZO
United States District Judge