Otero-Torres v. Collazo Rivera

Filing 52

OPINION AND ORDER grating 44 Motion to Dismiss Counterclaim; finding as moot 16 MOTION for Default Entry; denying 49 Motion to Strike: 46 Response in Opposition to Motion. Settlement Conference set for 8/13/2010 10:00 AM in SEC's Chambers before Judge Salvador E Casellas.Signed by Judge Salvador E Casellas on 8/4/2010.(THD)

Otero-Torres et al v. Collazo-Rivera et al

Doc. 52

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO C A R L O S A. OTERO-TORRES, et al P la in tif f Civil No. 09-2006 (SEC) v. F E D E R IC O COLLAZO-RIVERA, et al Defendants

O P I N I O N AND ORDER P e n d in g before the Court is Carlos A. Otero-Torres' ("Plaintiff") Motion to Dismiss (D o c k e t # 39). Co-defendants Erasmo Collazo, Olga Rivera, and the Rivera-Collazo conjugal p a rtn e rs h ip (collectively "Defendants") filed a Response in Opposition thereto, to which P la in tif f proffered a Reply.1 After considering the pleadings and the applicable law, Plaintiff's M o tio n to Dismiss will be GRANTED. Factual & Procedural Background T h e relevant facts pertaining to the present Motion to Dismiss are straightforward. On O c to b e r 21, 2005, Plaintiff filed a civil complaint against Defendants in the Puerto Rico Court o f First Instance, Bayamón Part, Civil No. DKDP-2005-0623. The suit was brought under A rtic le s 1802 and 1803 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, §§ 5141 & 5 4 1 2 for damages resulting from an alleged shooting by Plaintiff's former employer and Cod e f e n d a n t Collazo-Rivera on October 23, 2004. The local court granted Plaintiff's motion to v o lu n ta rily dismiss said suit without prejudice, and judgment was entered on January 14, 2009. D e f e n d a n ts did not object to the dismissal without prejudice. Plaintiff alleges that he originally

The remaining co co-defendants Collazo-Rivera ("Collazo-Rivera"), Ecori Tranport, Inc., and Transportes Collazo-Rivera, Inc. did not join the counterclaim.

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b ro u g h t the suit in local court because he was not appraised of his right to bring a claim under 3 d iv e rs ity jurisdiction, nor was he adequately advised by his prior counsel. 4 R e g a rd le s s of the motivations for switching forums, on September 30, 2009, Plaintiff 5 f i l e d the present action, and on March 2, 2010, Defendants answered and also filed a 6 c o u n te rc la im against Plaintiffs. The counterclaim asserts that Otero assaulted Erasmo Collazo, 7 a n d that Collazo-Rivera, Defendants' son, was left with no other option than to turn his weapon 8 a g a in st Plaintiff. Defendants seek damages for pain, suffering, and emotional distress. 9 P la in tif f denies these allegations, and also argues that Defendants' counterclaim is time10 b a rre d , because they failed to file a compulsory counterclaim in the local court case, and thus 11 n e v e r tolled Article 1802's one-year statue of limitations. 12 Standard of Review 13 F e d . R. Civ. P. 12(b)(6) 14 T o survive a Rule 12(b)(6) motion, Plaintiffs' "well-pleaded facts must possess enough 15 h e f t to show that [they are] entitled to relief." Clark v. Boscher, 514 F. 3d 107, 112 (1 st Cir. 16 2 0 0 8 ).2 In evaluating whether Plaintiffs are entitled to relief, the court must accept as true all 17 o f their "well-pleaded facts [and indulge] all reasonable inferences therefrom" in the plaintiff's 18 f a v o r. Twombly, 127 S. Ct. at 1964. The First Circuit has held that "dismissal for failure to state 19 a claim is appropriate if the complaint fails to set forth factual allegations, either direct or 20 in f e re n tia l, respecting each material element necessary to sustain recovery under some 21 a c tio n a b le legal theory." Gagliardi v. Sullivan, 513 F. 3d 301, 305(1st Cir. 2008). Courts "may 22 a u g m e n t the facts in the complaint by reference to documents annexed to the complaint or fairly 23 24 25 26 FED. R. CIV. P. 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to allow the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
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in c o rp o ra te d into it, and matters susceptible to judicial notice." Id. at 305-306. However, in 3 ju d g in g the sufficiency of a complaint, courts must "differentiate between well-pleaded facts, 4 o n the one hand, and `bald assertions, unsupportable conclusions, periphrastic circumlocution, 5 a n d the like,' on the other hand; the former must be credited, but the latter can safely be 6 ig n o re d ." LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (quoting Aulson v. Blanchard, 7 8 3 F.3d 1, 3 (1st Cir.1996)); Buck v. American Airlines, Inc., 476 F. 3d 29, 33 (1 st Cir. 2007); 8 s e e also Rogan v. Menino, 175 F.3d 75, 77 (1s t Cir. 1999). Thus Plaintiffs must rely in more 9 th a n unsupported conclusions or interpretations of law, as these will be rejected. Berner v. 10 D e la h a n ty, 129 F.3d 20, 25 (1st Cir. 1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 11 (1st Cir. 1988)). 12 A p p lic a b le Law and Analysis 13 T h e limitations period for actions brought pursuant to Article 1802 is one year, as 14 e s ta b lis h e d by Article 1868 of the Civil Code of Puerto Rico. See P.R. Laws Ann. tit. 31, § 15 5 2 9 8 (2 ). Furthermore, "[t]hat period ordinarily begins to run at the time that the aggrieved party 16 k n o w s (or should have known) of both his injury and the identity of the party who caused it." 17 Gonzalez Figueroa v. J.C. Penney Puerto Rico, Inc., 568 F.3d 313, 318 (1 st Cir. 2009); see also 18 M o n ta ñ e z v. Hosp. Metropolitano, 157 P.R. Dec. 96, 106 (2002). The term to sue then begins 19 to run on the day after the claim accrues. 20 In the case at hand, the incident giving rise to the counterclaim was a violent 21 c o n f ro n ta tio n , which ended traumatically with Collazo-Rivera shooting Otero. Defendants have 22 a lle g e d that Otero's aggression caused them pain and suffering, as well as physical injuries. 23 Nevertheless, no allegations have been made that their damages were somehow latent for any 24 p e rio d of time before being discovered, or that the incident carried on creating further damages 25 th a t were not discovered until a future date. Therefore, this Court holds that the effective date 26

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o f accrual for any damages claims must be October 23, 2004, the date of the incident with 3 O te ro . 4 Accordingly, under Article 1802, in the absence of an act interrupting or tolling the 5 lim ita tio n s period, it would have ended on October 23, 2005. However, Plaintiff sued in state 6 c o u rt on October 21, 2005, effectively tolling his claims. The suit also appears to have tolled 7 D e f e n d a n ts ' counterclaims, but the facts of the case are not so simple. 8 Under Puerto Rico law, the limitation of tort actions is "not a procedural, but a 9 s u b s ta n tiv e matter . . ." covered by the Civil Code. Febo Ortega v. Tribunal Superior, 102 10 D .P .R . 405, 2 P.R. Offic. Trans. 506 (1974). However, Febo clearly adopted the Spanish Civil 11 C o d e doctrine that, "the interruption arising from the filing of a complaint also favors the 12 d e f e n d a n t conterclaimant when his action derives from the same facts that gave rise to the 13 o rig in a l complaint." Id. The reasoning behind this is that, as a limitations period runs, the 14 d e f e n d a n t might believe the plaintiff has lost interest in the matter and not file a claim. Should 15 th e filing of a complaint not toll the period for both parties, plaintiffs could take advantage of 16 th is situation by waiting until the end of the limitations period to file, leaving defendants with 17 n o right to assert counterclaims but an obligation to defend themselves against plaintiffs' 18 a lle g a tio n s . The Supreme Court of Puerto Rico found that allowing such a practice would 19 o f f e n d common conceptions of justice and lead to no "social utility." Id. 20 The Febo holding appears to favor Defendants, but the facts in the present case are 21 m a rk e d ly different from those considered in said decision. As discussed above, the present 22 c la im was filed before the Commonwealth courts in 2005, but no counterclaim was proffered 23 u n til March of this year. Defendants are benefitted by the tolling of their claims when plaintiffs 24 f irs t file suit, but 25 c o u n te rc la im s , provides for preclusion of these claims if they are not plead in the answer to the 26 c o m p la in t or in a timely fashion. To wit, Rule 11.1 states: Puerto Rico Rule of Civil Procedure 11.1, governing compulsory

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CIVIL NO. 09-2006 (SEC) A pleading shall state as a counterclaim any claim which at the time of serving the p le a d i n g the pleader has against any opposing party, if it arises out of the tra n s a c tio n or occurrence that is the subject matter of the opposing party's claim a n d does not require for its adjudication the presence of third parties of whom the c o u rt cannot acquire jurisdiction.

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(O f f ic ia l translation).3 This district has concluded that "[t]he preclusion covers those issues a c tu a lly litigated and adjudicated and extends to those issues which could have been litigated a n d adjudicated in the previous suit." R-G Financial Corp. V. Vergara-Nunez, 381 F.Supp. 2d 1 , 4 (D.P.R. 2005); see also Del Carmen Tirado v. Department of Education, 296 F.Supp.2d. 1 2 7 , 130 (D.P.R. 2003). Furthermore, it is only logical to conclude that failure to file a timely c o u n te rc la im would reactivate the limitations period. Here, the parties and claims are identical to those which engendered the

Commonwealth action first brought in 2005. Therefore, this Court must conclude that because D e f e n d a n ts failed to exercise their right to file a compulsory counterclaim in the first C o m m o n w e a lth court action, said counterclaim is now precluded. After several years of in a c tio n , and a change of forum, Defendants have undoubtedly lost their right to counterclaim w h e th e r through time-bar, or equity. It is too late in the day for the interests of justice to favor D e f e n d a n ts ' claims. Conclusion B a s e d on the foregoing, Plaintiff's motion to dismiss is GRANTED. Defendants' c o u n te rc la im is DISMISSED with prejudice. Judgement shall be entered accordingly. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 4 th day of August, 2010. S /S a lv a d o r E. Casellas S a lv a d o r E. Casellas
The federal rule is nearly identical. Pursuant to Fed. R. Civ. P. 13(a)(1)(A), "[a] pleading must state as a c o u n te r c la im any claim that ... the pleader has against an opposing party if the claim[ ] arises out of the transaction or o c c u r r e n c e that is the subject matter of the opposing party's claim[.]"
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CIVIL NO. 09-2006 (SEC) U .S . Senior District Judge

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