Jimenez-Vidal v. R & G Morgage Corp

Filing 12

OPINION & ORDER. DENIED 1 Motion to Withdraw Reference. Signed by Judge Salvador E Casellas on 3/11/2010. (LB) Modified text on 3/11/2010 (su).

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

O S V A L D O JIMENEZ-VIDAL Plaintiff v. R G MORTGAGE CORPORATION D efendant Civil No. 09-1795 (SEC)

OPINION AND ORDER P e n d in g before this Court is pro se Plaintiff Osvaldo Jimenez-Vidal's1 ("Plaintiff") m o tio n for withdrawal of reference (Docket # 1), RG Mortgage Corporation's ("RG") o p p o s itio n thereto (Docket # 9), and Plaintiff's reply2 (Docket # 10).3 After reviewing the f ilin g s , and the applicable law, Plaintiff's motion is DENIED. Factual and Procedural Background O n August 12, 2009, Plaintiff filed a motion to withdraw reference under Puerto Rico B a n k ru p tc y Local Rule 5011-1. Docket # 1. In essence, Plaintiff sets forth claims under the A m e ric a n s with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., and Section 504 of the R e h a b ilita tio n Act, 29 U.S.C. § 794, alleging that RG discriminated against him due to his d isa b ility, and violated his constitutional rights. According to Plaintiff, his home was sold at a u c tio n despite the bankruptcy court's stay, and in total disregard of his disabilities. In

Plaintiff is hearing impaired, and as such, was represented by his mother Maria T. Vidal, who was later assigned as his guardian ad litem. Plaintiff's "Motion to Request Relief Sought in the Withdraw of Reference" at Docket # 10 will be considered as a Reply to RG's response. Plaintiff avers that RG's response cannot be considered by this Court. However, this Court has ample discretion in the management of its cases. Moreover, our rulings are based upon the record, and the applicable law, not the parties' respective arguments. As such, Plaintiff's argument lacks merit.
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o p p o s itio n , RG argues that dismissal of the instant motion is proper on several grounds. RG first p o in ts out that Plaintiff has raised the same issues before bankruptcy, state and federal courts in the past three years to no avail. Specifically, RG notes that Plaintiff's 2008 suit in the United S ta te s District Court for the District of Puerto Rico against RG for the foreclosure of his p ro p e rty in alleged violation of the Rehabilitation Act was dismissed with prejudice, and was a f f irm e d on appeal. See Civil Case No. 08-1252 (ADC)("08-1252 (ADC)"); see Docket # 11. S e c o n d , RG contends that Plaintiff's argument regarding RG's alleged violation of the a u to m a tic stay was properly addressed in Bankruptcy Petitions 06-3693-ESL13 ("06-3693E S L 1 3 " ), and 08-8211-SEK13 ("08-8211-SEK13"). Third, RG notes that in 08-8211-SEK13, th e Bankrupcty Court determined that the sale of Plaintiff's former residence was not voidable, a n d as a result, the property was not part of the estate in said bankruptcy proceedings. A lte rn a tiv e ly, RG contends that issues raised in the present motion are core bankruptcy p ro c e e d in g s , i.e., whether the automatic stay was in effect when the judicial sale took place, that a r e not subject to withdrawal of reference. In his reply, Plaintiff reasserts his previous a rg u m e n ts . Upon reviewing the record in 08-1252 (ADC), 06-3693-ESL13, and 08-8211-SEK13, th is Court finds the facts are as follows.4 On October 2, 2006, Plaintiff filed for bankruptcy u n d e r Chapter 13, seeking to save his home from foreclosure initiated by RG in 2005 as a result o f Plaintiff's failure to make the allotted payments. See 08-8211-SEK13, Docket #53. Shortly th e re a f te r, on December 4, 2006, Judge Enrique S. Lamoutte-Inclan ("Judge Lamoutte")

Plaintiff's motions to the bankruptcy courts, and this district are convoluted at best, and fail to raise his claims above a speculative level, as required by Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). However, since said courts did not address this issue, and he appeared pro se, this Court will rule on the present motion based upon the relevant facts in the prior bankruptcy and district court cases.

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d ism is s e d the case because of Plaintiff's failure to file the required documents, to wit, the c h a p te r 13 plan, schedules, the statement of financial affairs, and official form B-22C. See 063 6 9 3 -E S L 1 3 , Docket # 11. Plaintiff, through his mother Maria T. Vidal, then sought to set aside th e dismissal, arguing that his failure to timely comply with the court's order was due to his d isa b ility, failure to understand English, and lack of financial resources to retain counsel. 063 6 9 3 -E S L 1 3 , Docket # 12. In light of Plaintiff's request, Judge Lamoutte granted RG and tru s te e Alejandro Oliveras Rivera, 20 days to oppose. 06-3693-ESL13, Docket # 13. In re sp o n s e , RG moved for dismissal. 06-3693-ESL13, Docket # 16. Plaintiff did not respond to R G 's request for dismissal within 30 days, as ordered by the bankruptcy court. As a result, the m o tio n to set aside the previous dismissal order was denied (06-3693-ESL13, Docket # 19), and th e case was closed on June 28, 2007 (06-3693-ESL13, Docket # 22). On September 20, 2007, Plaintiff moved to reopen the case, arguing once again that he w a s hearing impaired, unable to communicate in English, and could not afford counsel. 063 6 9 3 -E S L 1 3 , Docket # 23. The bankruptcy court granted RG and the trustee 30 days to reply to Plaintiff's motion, and noted that the possible "reopening of the case entail[ed] the payment o f reopening fees." 06-3693-ESL13, Docket # 24. In their respective replies, RG and the trustee d id not oppose Plaintiff's request to reopen the case. 06-3693-ESL13, Dockets ## 26 & 27. On October 29, 2007, Plaintiff filed a motion informing that on October 17, 2007 P la in tif f was ordered to leave his home because it had been sold at public auction. 06-3693E S L 1 3 , Docket # 28. However, Plaintiff did not submit reopening fees as ordered at Docket # 2 4 . Notwithstanding, there being no opposition to reopen the case, on November 9, 2007, Judge L a m o u tte granted Plaintiff's request to reopen the case, "subject to the debtor appearing through c o u n s e l and payment of reopening fees within thirty days." 06-3693-ESL13, Docket # 29. He a ls o warned that "[i]f [Plaintiff] fail[ed] to comply, the case [would] be dismissed." Id.

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A c c o rd in g ly, in light of Plaintiff's failure to comply with the above-mentioned order, the case w a s once again dismissed, and subsequently closed on October 17, 2008. 06-3693, Docket # 31. O n January 25, 2008, Plaintiff filed a motion asserting that he was discriminated against b e c a u s e of his disability. 06-3693-ESL13, Docket # 33. To this, Judge Lamoutte pointed out th a t dismissal of the bankrupcty case was without prejudice to any legal action before the a p p ro p ria te federal or state forums. 06-3693-ESL13, Docket # 34. C o n s e q u e n tly, on February 28, 2008, Plaintiff filed an "urgent appeal" before the United S ta te s District Court for the District of Puerto Rico, 08-1252 (ADC), arguing that RG d isc rim in a te d against him because of his disability, and foreclosed his home in violation of S e c tio n 504 of the Rehabilitation Act. 08-1252 (ADC), Docket # 2. District Court Judge Aida D e lg a d o -C o lo n ("Judge Delgado") ordered RG to inform the status of the foreclosure case filed b e f o re the Humacao Superior Court, if a judgment was entered or executed in said case, the total a m o u n t owed to RG, whether Plaintiff was represented by counsel at the state proceedings, and a n y jurisdictional issues. 08-1252 (ADC), Docket # 21. RG informed that the Humacao Superior C o u rt entered judgment of foreclosure on October 25, 2005, and the property was sold at public a u c tio n on October 17, 2008, thus no amount was due at that time. 08-1252 (ADC), Docket # 2 4 . RG further noted that Plaintiff was represented by Alberto Alvarez-Villa during the f o re c lo s u re proceedings. Id. Shortly thereafter, RG moved for dismissal arguing that Plaintiff's c o m p la in t was insufficient, insofar as he failed to set forth specific facts showing a violation of th e Rehabilitation Act. Moreover, according to RG, Plaintiff was not denied participation, b e n e f its , or discriminated against because of his disability. 08-1252 (ADC), Docket # 27. RG f u rth e r noted that federally guaranteed loans do not qualify as federal financial assistance, thus th e Rehabilitation Act was inapplicable. Id.

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In the interim, Plaintiff filed a second bankruptcy petition under Chapter 13. 08-8211S E K 1 3 , Docket # 1. Therein, Plaintiff reargued that his home was sold at public auction while th e automatic stay was in effect in 06-3693-ESL13. After several hearings, on March 31, 2009, J u d g e Sara E. De Jesús-Kellog ("Judge De Jesús") issued an order noting that the "[t]he issue a t hand [was] whether the automatic stay was reimposed when [Judge Lamoutte][sic] entered th e conditional reopening of [Plaintiffs'] previous bankruptcy case on December 4, 2007, th e re b y invalidating the sale of [Plaintiff's] residence." 08-8211-SEK13, Docket # 42. On this f ro n t , citing 11 U.S.C. § 362(e)(1), Judge De Jesús held that the issue was moot since "the a u to m a tic stay ha[d] been lifted by operation of law." Id. Specifically, the case has been p re v io u s ly dismissed, and closed pursuant to Judge Lamoutte's orders. Plaintiff then moved for re c o n sid e ra tio n , reiterating that RG obtained title of the property in violation of the automatic s ta y issued in 06-3693-ESL13. 08-8211-SEK13, Docket # 45. Another hearing was held on M a y 8, 2009, in the Spanish language so that Plaintiff's guardian ad litem could understand the b a n k ru p t c y court's ruling. See 08-8211-SEK13, Dockets # 52. In its May 15, 2009, Opinion a n d Order, Judge De Jesús denied Plaintiff's request for reconsideration, pointing out: ...J u d g e Lamoutte's orders contained conditions precedent. These required that th e [Plaintiff] obtain Counsel and pay reopening fees. The orders also appraised th e [Plaintiff] of the consequences of non compliance. The record shows the [ P la in tif f ] did not comply, and so, the case was not reopened and remained d is m is s e d . Both dismissal and closing of a case terminate the automatic stay. 11 U .S .C . § 362(c)(2)(A) & (B). Hence, actions taken by RG to execute its lien took p la c e while that case was not only dismissed, but also closed. Therefore, since th a t case was never reopened and the dismissal was never vacated, the automatic s ta y was never `reimposed by [Judge Lamoutte's] orders.' J u d g e De Jesús also noted that Judge Lamoutte "exercised extreme caution and p a tie n c e ," granting Plaintiff several opportunities to continue his petition, but Plaintiff instead ig n o re d his orders. Id. Lastly, she pointed out that as Judge Lamoutte correctly noted, Plaintiff's " p o s s ib le defenses against the foreclosure could be brought in another court with subject matter

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a n d personal jurisdiction, as the dismissal was without prejudice," and as a matter of fact, there w a s ongoing litigation in the United States District Court for the District of Puerto Rico, i.e., 0 8 -1 2 5 2 (ADC). Id. Subsequently, Judge De Jesús granted Plaintiff's request for withdrawal o f reference, and on August 10, 2009, referred the same to case 08-1252 (ADC), pending before J u d g e Delgado.5 08-8211-SEK13, Docket # 63. U p o n RG's request (08-1252, Dockets ## 27 & 31), and considering Judge De Jesús' d e c is io n , on October 22, 2009, Judge Delgado dismissed Plaintiff's claims, finding that he " f a ile d to present valid defenses to the foreclosure procedures filed before the Puerto Rico State C o u rt and that proceedings have concluded before the Bankruptcy Court." 08-1252 (ADC), D o c k e t # 35. She also noted that "at state level plaintiff was duly represented by counsel and th a t foreclosure proceedings were properly conducted." 08-1252 (ADC), Docket # 35. Standard of Review U n d e r 28 U.S.C.A. § 157(b)(1), "[b]ankruptcy judges may hear and determine all cases u n d e r title 11 and all core proceedings arising under title 11, or arising in a case under title 11, re f e rre d under subsection (a) of this section and may enter appropriate orders and judgments, s u b je c t to review under section 158 of this title." Notwithstanding, Subsection 157(d) allows s o m e matters properly before a bankruptcy judge to be withdrawn to a district court for re so lu tio n . Specifically, "[t]he district court may withdraw, in whole or in part, any case or p ro c e e d in g referred under this section on its own motion or on timely motion of any party, for c a u s e shown. The district court shall, on timely motion of a party, so withdraw a proceeding if th e court determines that resolution of the proceedings requires consideration of both title 11 a n d other laws of the United States regulating organizations or activities affecting interstate

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Notwithstanding, the motion for withdrawal of reference was assigned to the Undersigned.

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c o m m e rc e ." 28 U.S.C.A. § 157(d). While the first part of the cited section refers to permissive w ith d ra w a l, the second part relates to the mandatory withdrawal of reference. Alfonseca-Baez v . Doral Fin. Corp., 376 B.R. 70, 72-73 (D.P.R. 2007). M a n d a to ry withdrawal of reference seeks "to assure that only Article III Judges d e te rm in e issues requiring more than a routine application of federal statutes outside the B a n k ru p tc y code." Alfonseca-Baez, 376 B.R. at 73 (citing In re Ponce Marine Farm, Inc. V. B ro w n e r, E.P.A., 172 B.R. 722, 724 (D. P.R. 1994). Notwithstanding, courts have interpreted m a n d a to ry withdrawals narrowly, "because to do otherwise would eviscerate much of the work o f the bankruptcy courts." Alfonseca-Baez, 376 B.R. at 73. Moreover, it would "create an e s c a p e hatch by which bankruptcy matters could easily be removed to the district court." A lf o n s e c a -B a e z , 376 B.R. at 73 (citing Fajardo, 227 B. R. at 765). Accordingly, "mandatory w ith d ra w a l is proper only where resolution of the adversary proceeding involves substantial and m a te ria l consideration of non-bankruptcy federal statutes." Alfonseca-Baez, 376 B.R. at 73 (c itin g Ponce, 172 B. R. at 724). Interpreting the foregoing, this district has held that "the c o n s id eration of non-code law must entail more than routine application of federal non-code law to the facts." Id. Therefore, "the mere presence of a non-title 11 issue, even if it is o u tc o m e -d e te rm in a tiv e , does not require mandatory withdrawal." Alfonseca-Baez, 376 B.R. at 7 3 (citations omitted). Instead, for "mandatory withdrawal to be required `non-code issues [ m u s t] dominate the bankruptcy issues.'" Alfonseca-Baez, 376 B.R. at 73 (citing Ponce, 172 B .R . at 724). S im ila rly, permissive withdrawal of reference has been narrowly construed, and may o c c u r only "for cause shown." Fajardo, 227 B.R. at 765; see also Alfonseca-Baez, 376 B.R. at 7 4 ; Ponce, 172 B.R. at 724. Section 157(d) grants broad discretion to the district court "on w h e th e r a case should be heard before the bankruptcy court or the district court." Fajardo, 227

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B .R . at 765. As such, the movant must show that there is cause for the district court to withdraw th e reference. Id.; Alfonseca-Baez, 376 B.R. at 74; Ponce, 172 B.R. at 725. In determining w h e th e r permissive withdrawal is proper, courts have considered the "uniformity in bankruptcy a d m in is tra tio n , reducing forum shopping, and confusion, fostering the economical use of the d e b to r's and creditor's resources, and expediting bankruptcy process." Alfonseca-Baez, 376 B .R . at 74 (citing Fajardo, 227 B.R. at 765). However, this district adopted the Fourth Circuit's approach on this front, in that courts " s h o u ld first evaluate whether the claim is core or non-core, since it is upon this issue that q u e s tio n s of efficiency and uniformity will turn." Alfonseca-Baez, 376 B.R. at 74 (citing F a ja rd o , 227 B.R. at 765). This approach is based upon the fact that "hearing core matters in a d istric t court could be an inefficient allocation of judicial resources given that the bankruptcy c o u rt generally will be more familiar with the facts and the issues." Alfonseca-Baez, 376 B.R. a t 75 (citing Fajardo, 227 B.R. at 765). Thus when a core-issue is in dispute, permissive w ith d ra w a l is not favored. Id. Applicable Law and Analysis P la in tif f 's withdrawal of reference hinges on two issues: whether the automatic stay was in effect when his property was sold at auction, and whether he was subject to discrimination b e c a u s e of his disability during the foreclosure proceedings. We will discuss each issue in turn. A u to m a tic Stay P la in tif f argues that the automatic stay was in effect between September 25 and October 2 9 , 2007. Specifically, he posits that the bankruptcy case was reopened on September 25, 2007, p u rs u a n t to his request, thus the public sale that took place on October 17, 2007 was unlawful. However, upon reviewing the record, this Court notes that 06-3693-ESL13 was closed o n June 28, 2007. 06-3693-ESL13, Docket # 22. Plaintiff then moved to reopen the case on

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S e p te m b e r 20, 2007. 06-3693-ESL13, Docket # 23. On September 25, 2007, the bankruptcy c o u rt merely granted RG and the trustee 30 days to reply to Plaintiff's motion, and noted that th e possible "reopening of the case entail[ed] the payment of reopening fees." 06-3693-ESL13, D o c k e t # 24. Thus Judge Lamoutte did not grant Plaintiff's request. Instead, he set deadlines f o r RG and the trustee's responses, and expressly noted that if the case was reopened, Plaintiff w a s obligated to pay the allotted fees. On November 9, 2007, in light of RG and the trustee's a c q u ie s c e n c e to Plaintiff's request, Judge Lamoutte reopened the case, "subject to the debtor a p p e a rin g through counsel and payment of reopening fees within thirty days." 06-3693-ESL13, D o c k e t # 29. He also warned that "[i]f [Plaintiff] fail[ed] to comply, the case [would] be d ism is s e d ." Id. However, Plaintiff failed to comply with said order, and as a result the case was o n c e again dismissed, and finally closed on October 17, 2008. 06-3693-ESL13, Docket # 31. This Court further notes that in her Opinion and Order, Judge De Jesús also pointed out th a t the dismissal was never set aside, and in light of Plaintiff's non compliance, the case was e v e n tu a lly closed. 08-8211-SEK13, Docket #53. Moreover, Judge De Jesús expressly rejected P la in tif f 's arguments that the automatic stay was in effect at the date of the foreclosure. As a m a tte r of fact, she held that the automatic stay was lifted by operation of 11 U.S.C. § 3 6 2 (c )(1 )(A ) & (B), upon dismissal and closure of the case. 08-8211-SEK13, Dockets ## 42 & 53. L a s tly, as RG correctly points out, Plaintiff's withdrawal of reference involves a clear b a n k ru p tc y issue: whether the automatic stay was in effect when Plaintiff's property was sold a t auction. See 11 U.S.C. § (c)(2)(A) & (B). As such, this Court finds that whether the a u t o m a t i c stay was in effect is a core issue which is better left for the bankruptcy court to d e c id e , and in the present case, it has already been decided by said forum. As a result, Plaintiff's w ith d ra w a l of reference on this issue is DENIED.

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CIVIL NO. 09-1795 (SEC) D is c rim in a tio n claims

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A s to Plaintiff's claims of discrimination, they have properly addressed by the district c o u rt in 08-1252 (ADC), and as a result, Plaintiff is barred from revisiting said issues. This Circuit's case law has held that "[e]ven without a motion, `a court on notice that it h a s previously decided an issue may dismiss the action sua sponte, consistent with the res ju d ic a ta policy of avoiding judicial waste.'" Banco Santander de P.R. v. Lopez-Stubbe (In re C o lo n ia l Mortgage Bankers Corp.), 324 F.3d 12, 16 (1st Cir. 2003) (citing Bezanson v. Bayside E n te rp s ., Inc., 922 F.2d 895, 904 (1st Cir. 1990)).6 The First Circuit has further held that when th e judgment for a prior case is "entered by a federal court exercising federal question ju ris d ic tio n , the applicability of res judicata and collateral estoppel is a matter of federal law." S e e Ramallo Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 89 (1st Cir.2007). Under the res ju d ic a ta doctrine, "`a final judgment on the merits of an action precludes the parties or their p riv ie s from relitigating issues that were or could have been raised in that action.'" B a rre to -R o s a v. Varona-Mendez 393 F. Supp. 2d 122,126 (D.P.R. 2005); Coors Brewing Co. v . Mendez-Torres, No. 07-2682, 2009 U.S. App. LEXIS 6638, *10 (1st Cir. 2009) (citing Perez v . Volvo Car Corp., 247 F.3d 303, 311 (1st Cir. 2001) (citing Allen v. McCurry, 449 U.S. 90, 9 4 (1980))). The foregoing "prevents plaintiffs from splitting their claims by providing a strong in c e n tiv e for them to plead all factually related allegations and attendant legal theories for re c o v e ry the first time they bring suit." Apparel Art Int'l v. Amertex Enters., 48 F.3d 576, 583 (1st Cir. 1995).

Sua sponte dismissal on res judicata grounds can only occur when the defense is "definitively ascertainable from the allegations of the complaint, the documents (if any) incorporated therein, matters of public record, and other matters of which the court may take judicial notice. The second condition is that the facts so gleaned must conclusively establish the affirmative defense." Banco Santander de P.R., 324 F.3d at 16 (citing Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001); LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1999).

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T o trigger res judicata, also known as claim preclusion, there must be "`(1) a final ju d g m e n t on the merits in an earlier suit, (2) sufficient identicality between the causes of action a s se rte d in the earlier and later suits, and (3) sufficient identicality between the parties in the t w o suits.'" Coors Brewing, No. 07-2682, 2009 U.S. App. LEXIS 6638 at *10 (citations o m m itte d ); Breneman v. U.S. ex rel. F.A.A., 381 F.3d 33 (1 st Cir. 2004) (citing Banco S a n ta n d e r de P.R., 324 F.3d at 15 (internal quotation marks omitted). There is no controversy a s to the fact that a final judgment was issued in 08-1252 (ADC). Therein, as to Plaintiff's d isc rim in a tio n claims, Judge Delgado noted that Plaintiff failed to present valid defenses to the f o re c lo s u re procedures before the Humacao Superior Court, that Plaintiff was duly represented b y counsel, and the foreclosure proceedings were properly conducted. Therefore, the first factor is met. As to the second factor, the First Circuit has held that when two separate suits involve s u f f ic ie n tly identical causes of action, a judgment in an earlier action precludes litigation of c la im s in a subsequent action. Apparel Art, 48F.3d at 583. This Circuit has adopted the m e th o d o lo g y of the Restatement (Second) of Judgments in defining the cause of action for res ju d ic a ta purposes. Manego v. Orleans Bd. of Trade, 773 F.2d 1, 5 (1st Cir. 1985). Accordingly, in order to determine the identity of the underlying claims or causes of action, a cause of action is defined as a set of facts which can be characterized as a single transaction or a series of re la te d transactions. Manego, 773 F.2d at 5. As a result, the cause of action is a transaction that is identified by a common nucleus of operative facts. Id. Although a set of facts may give rise to multiple claims based on different legal theories, if the facts form a common nucleus that is id e n tif ia b le as a transaction or series of related transactions, then those facts represent one cause o f action. Id. In order to determine whether a party has advanced claims in multiple litigations w h ic h derive from the same nucleus of operative facts, this Court may consider: 1) whether the

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f a c ts are related in time, space, origin or motivation; 2) whether the facts form a convenient trial u n it; and 3) whether treating the facts as a unit conforms to the parties' expectations. Apparel A rt, 48F.3d at 583. Additionally, in determining whether there is an identity of causes, a court m u s t analyze the object or matter over which the action is being brought. Arroyo v. K-Mart Inc., 8 1 F. Supp. 2d 301, 306 (D.P.R. 1999). The requirement is that there be an identity of causes, th a t is, the principal basis or origin of the action. Id. at 307 (citations omitted). Thus, this Court must determine whether the facts set forth by Plaintiff in the instant c o m p la in t arise from the same nucleus of operative facts as those that were adjudicated by the p rio r judgments of the district and bankruptcy courts. Clearly, the prior suits, and the present m o tio n arise out of the foreclosure of Plaintiff's home, that is, from the same nucleus of o p e r a t i v e facts. Since the identity of causes requirement does not prevent the res judicata d o c trin e from being applied to a second case simply because the plaintiff alleges a new legal th e o ry in it, the fact that Plaintiff now alleges disability discrimination under ADA is irrelevant. Id . (Citing Futura Development. v. Centex Corp., 761 F.2d 33, 44 (1st Cir. 1985). In the present c a s e , while it might seem at first glance that a dismissal with prejudice of the first complaint w o u ld not bar the second one, res judicata precedent is clear: issues that could have been b ro u g h t up in a previous action for which judgment has been rendered are precluded from relitig a tio n . Barreto-Rosa 470 F.3d at 45. Although a set of facts may give rise to multiple claims b a s e d on different legal theories, if the facts form a common nucleus that is identifiable as a tra n s a c tio n or series of related transactions, then those facts represent one cause of action for p u rp o s e s of res judicata.7 Kale v. Combined Ins. Co., 924 F.2d 1161, 1166 (1 st Cir. 1991).

This Court has enumerated several factors which are useful in determining whether a party has advanced claims in multiple litigations which derive from the same nucleus of operative facts. Apparel Art, 48 F.3d at 584. These factors include: 1) whether the facts are related in time, space, origin or motivation; 2) whether the facts form a convenient trial unit; and 3) whether treating the facts as a

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M e re ly alleging a new legal theory does not preclude the application of res judicata. Arroyo, 8 1 F. Supp. 2d at 306 (citing Futura Development, 761 F.2d at 44). Thus Plaintiff cannot re tilig a te issues that were, or could have been raised, in 08-1252 (ADC). Since the causes of a c tio n of the suits are identical, the second factor is also satisfied. F in a lly, this Court must determine whether the defendants in all cases are identical, or s u f f ic ie n tly in privity, to satisfy the third element. Banco Santander de P.R., 324 F.3d at 17. Upon reviewing the record, this Court finds that Plaintiff's claims have always been directed to w a rd s RG. Therefore, the defendant is identical in both suits. L a s tly, this Court notes that Plaintiff's proper recourse after the Humacao Superior C o u rt's judgment was to file a timely appeal to the Puerto Rico Court of Appeals, and s u b s e q u e n tly to the Puerto Rico Supreme Court. However, Plaintiff filed the same two years a f t e r the Humacao Superior Court's 2005 judgment of foreclosure, thus his petition was d ism is s e d for lack of jurisdiction. See Docket # 9, n. 2; R & G Mortgage Corp. v. Osvaldo J im e n e z , 2007 P.R. App. Lexis 2773. Moreover, Plaintiff's appeal of Judge Delgado's order o f dismissal in 08-1252 (ADC) was affirmed by Court of Appeals for the First Circuit. See D o c k e t # 11-2. As such, the dismissal of Plaintiff's discrimination claims was affirmed. In a d d itio n , as the First Circuit pointed out, Plaintiff's allegations are devoid of specific facts, b e yo n d mere speculation, that RG's acts were taken on account of his disability. C o n c lu s io n B a s e d on the foregoing, Plaintiff's withdrawal of reference is DENIED. IT IS SO ORDERED. In San Juan, Puerto Rico, this 11th day of March, 2010.

unit conforms to the parties' expectations. Id.

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CIVIL NO. 09-1795 (SEC) S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge

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