Grajales et al v. Puerto Rico Ports Authority et al

Filing 226

OPINION AND ORDER re 185 Motion to Strike; and 193 Response to Motion. The Court DENIES plaintiffs' motion to strike, for an order to show cause, and for sanctions. (Docket No. 185.) The Court also DENIES defendant PRPA's motion for a protective order. (Docket No. 193.) Signed by Judge Francisco A. Besosa on 01/23/2013. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DANIEL GRAJALES, WANDA GONZALEZ
and
CONJUGAL
PARTNERSHIP
GRAJALES-GONZALEZ,
Plaintiffs,
v.

CIVIL NO. 09-2075 (FAB)

PUERTO RICO PORTS AUTHORITY, et.
al.,
Defendants.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court is plaintiffs’ motion to strike pursuant to
Federal Rule of Civil Procedure 12(f) (“Rule 12(f)”) and defendant
the Puerto Rico Ports Authority’s (“PRPA”) motion for a protective
order. (Docket Nos. 185 and 193, respectively.) Having considered
the plaintiffs’ motion, (Docket No. 185), the defendants’ response,
(Docket

No.

193),

and

the

plaintiffs’

reply

to

defendants’

opposition, (Docket No. 205), the Court DENIES plaintiffs’ motion
to strike.

Additionally, the Court DENIES defendant PRPA’s motion

for a protective order.

(Docket No. 193.)
DISCUSSION

I.

Background
Plaintiffs

(“Gonzalez”),

Daniel
and

Grajales

their

(“Grajales”),

conjugal

partnership

Wanda

Gonzalez

(collectively,

Civil No. 09-2075 (FAB)

2

“plaintiffs”), allege that defendant PRPA, a public corporation,
and other defendants subjected him to political discrimination
through a variety of occurrences.

(Docket No. 146.)

Plaintiffs’

third amended complaint includes a general claim for civil rights
violations under 42 U.S.C. sections 1983 and 1985, state claims for
damages under the laws of the Commonwealth of Puerto Rico, and
Puerto Rico Law No. 100 for alleged discrimination.

Id.

On November 30, 2012, plaintiffs filed a motion to strike
pursuant to Rule 12(f), alleging that defendant PRPA has failed to
produce a witness pursuant to Federal Rule of Civil Procedure
30(b)(6)1 (“Rule 30(b)(6)”) and in violation of the Court’s order.
(Docket No. 185 at pp. 1 and 5.)

Plaintiffs request that the Court

issue an order to show cause and to bar defendant PRPA from
presenting any evidence or witness at trial.

Id. at p. 5.

Additionally, plaintiffs argue that, pursuant to Rule 12(f), the
Court should (1) sanction the individual defendants in their

1

Rule 30(b)(6) provides in relevant part: “Notice or Subpoena
Directed to an Organization. In its notice or subpoena, a party
may name as the deponent a public or private corporation . . . or
other entity and must describe with reasonable particularity the
matters for examination.
The named organization must then
designate one or more officers, directors, or managing agents, or
designate other persons who consent to testify on its behalf; and
it may set out the matters on which each person designated will
testify . . . The persons designated must testify about information
known or reasonably available to the organization . . . .”
(emphasis added). Fed.R.Civ.P. 30(b)(6).

Civil No. 09-2075 (FAB)

3

official capacity for their failure to answer the written discovery
requests, and (2) sanction defendant PRPA for “having made the
plaintiff file this motion . . . ”

Id.

On December 10, 2012, defendant PRPA filed a response to
plaintiffs’ motion to strike.

(Docket No. 193.)

It argues that

Rule 12(f) does not apply to discovery disputes and that defendant
PRPA produced
designated

for

as

deposition

30(b)(6)

a

number

witnesses.

of
Id.

witnesses
at

pp.

who were
1

and

3.

Furthermore, it argues that plaintiffs’ motion is untimely because
the discovery period terminated on November 20, 2012.
and 5.

Id. at pp. 3

Therefore, defendant PRPA requests the Court to deny

plaintiffs’ motion to strike and for sanctions.

Id. at p. 5.

It

also requests the Court to issue a protective order deeming the
“unspecified [Rule] 30(b)(6) discovery issues irrelevant to the
pending motions for summary judgment.”
On

December

28,

2012,

the

Id.

plaintiffs

filed

a

reply

to

defendant PRPA’s response. (Docket No. 205.) Plaintiffs reiterate
that defendant PRPA has failed to produce a Rule 30(b)(6) witness.
Id. at p. 2.

To support their argument, plaintiffs discussed how

each of the witnesses that defendant PRPA attempted to produce for
a Rule 30(b)(6) deposition had no knowledge of plaintiffs’ Rule

Civil No. 09-2075 (FAB)

4

30(b)(6) Notice of Deposition.2

(Docket No. 205 at pp. 3–5; Docket

No. 150.) The Court finds the plaintiffs’ arguments unavailing and
will address each argument in turn.
II.

Legal Analysis
A.

Applicable Law Governing Depositions of an Organization
and Sanctions Relating to Discovery
The Federal Rules of Civil Procedure “provide[] the basic

framework” for discovery requirements.

See Harriman v. Hancock

County, 627 F.3d 22, 29 (1st Cir. 2010).

Rule 30(b)(6) allows a

party to notify or subpoena an organization to serve as a deponent.
Fed.R.Civ.P. 30(b)(6).
particularity

the

It must also “describe with reasonable

matters

for

examination.”

Id.

The

named

organization must designate at least one person who agrees to
testify on behalf of the organization.

Id.

The organization may

–but is not required to–specify the topics on which each designated
person will testify.

Id.

“A Rule 30(b)(6) designee must be able

to testify on behalf of an organization ‘about information known or
reasonably available to the organization.’”

Baker v. St. Paul

Travelers Ins. Co., 670 F.3d 119, 124 (2012) (citing Fed.R.Civ.P.
30(b)(6)).

If a party fails to comply with Rule 30(b)(6) or fails

to cooperate in discovery generally, the Federal Rules of Civil

2

This notice of deposition complies with Rule 30(b)(6) and sets
out all the different categories about which plaintiffs intended
to inquire at the depositions.

Civil No. 09-2075 (FAB)
Procedure

allow

Fed.R.Civ.P. 37.

the

5
court

to

impose

sanctions.

Id.;

Specifically, pursuant to Federal Rule of Civil

Procedure 37(d)(1)(A)(i), a court may impose a sanction “if the
Rule 30(b)(6) witness ‘fails, after being served with proper
notice, to appear for that person’s deposition.’”

Id. at 24.

Furthermore, Federal Rule of Civil Procedure 30(d)(2) authorizes a
court sanction any “person who impedes, delays, or frustrates the
fair examination of the deponent.”

Baker, 670 F.3d at 123 (citing

Fed.R.Civ.P. 30(d)(2)).
B.

Plaintiffs’
Depositions

Claims

Regarding

its

Rule

30(b)(6)

After reviewing the plaintiffs’ and defendants’ motions,
the

relevant

exhibits,

and

the

applicable

rules,

the

Court

disagrees with plaintiffs’ arguments. First, the plaintiffs failed
to file their motion pursuant to any rules governing discovery
matters.

Second, even if the plaintiffs moved the Court for

sanctions under the appropriate Federal Rules of Civil Procedure,
they fail to show that defendant PRPA refused to cooperate with
discovery matters.
motion.

Accordingly, the Court DENIES plaintiffs’

Civil No. 09-2075 (FAB)
First,

the

6

plaintiffs

filed

their

motion

to strike

pursuant to Rule 12(f),3 which governs motions to strike from
pleadings not discovery.

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

Plaintiffs’ motion

to strike clearly seeks recourse for alleged failure to comply with
its Rule 30(b)(6) notice of deposition.

(See Docket No. 185.)

Therefore, Rules 30(d)(2) and 37(d)(1)(A)(i) are the appropriate
rules to seek sanctions relating to Rule 30(b)(6) depositions.
Plaintiffs filed its motion under the incorrect Federal Rule of
Civil Procedure.
Even if the plaintiffs had moved the Court for sanctions
pursuant to the appropriate rules, plaintiffs fail to show that
defendant PRPA refused to cooperate with plaintiffs’ Rule 30(b)(6)
notice of deposition.

On the contrary, defendants provided a

number of witnesses as designated persons to testify on behalf of
defendant PRPA.

(See Docket Nos. 185-1, 185-2, 185-3, and 185-4.)

Indeed, plaintiffs attached partial transcripts of the depositions
of Elmer Emeric-Oliver (“Emeric”), Roberto Ramos-Cruz (“Ramos”),
Alberto Escudero-Morales (“Escudero), and Miguel Alcover-Colon
(“Alcover”). Id. Therefore, plaintiffs cannot claim that pursuant

3

Rule 12(f) provides in relevant part: “Motion to Strike. The
court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter . . . .”
Fed.R.Civ.P. 12(f). (emphasis supplied)

Civil No. 09-2075 (FAB)

7

to Rule 37(d)(1)(A)(i), the Court should issue a sanction because
a witness failed to appear for the deposition.
Plaintiffs also cannot claim that, under Rule 30(d)(2),
anyone impeded, delayed, or frustrated the fair examination of any
of the persons that defendant PRPA designated to testify on its
behalf.

The

plaintiffs

argue

that

during

each

of

the

four

depositions, the deponents had not seen plaintiffs’ Rule 30(b)(6)
Notice of Deposition. (Docket No. 205 at pp. 3–5; Docket No. 150.)
Plaintiffs’ counsel concluded on his own that because the deponents
had not seen the notice, they were not prepared to testify on
behalf of defendant PRPA.

(Docket No. 205 at pp. 4-5.)

Plaintiffs

did not confirm his inference, however, by asking any of the four
witnesses questions regarding defendant PRPA.
205-1,

205-2,

205-3,

and

205-4.)

In

at

(See Docket Nos.
least

two

of

the

depositions, either defendant PRPA’s counsel or the witness himself
indicated

that

the

witness

was

prepared

to

serve

as

a

representative of defendant PRPA and to testify on defendant PRPA’s
behalf pursuant to Rule 30(b)(6).
21; Docket No. 205-2 at p. 2.)

(Docket No. 205-1 at pp. 17 and

The proper way to determine whether

a witness can answer the questions related to the topics listed in
the Rule 30(b)(6) notice is to ask the questions relating to the
topics listed in it, not by asking if
notice.

the witness has seen the

Because plaintiffs’ counsel failed to ask his questions

Civil No. 09-2075 (FAB)

8

during the deposition, plaintiffs cannot now claim that defendant
PRPA failed to comply with its notice nor can they claim that
anyone else impeded the fair examination of the witnesses.
Finally, plaintiffs stated that another reason that they
did not proceed with the questioning was because defendant PRPA did
not enumerate which designated persons would testify to which
specific matters listed in the Rule 30(b)(6) notice.
No. 205-1 at pp. 7-12; Docket No. 205 at p. 4.)

(See Docket

Plaintiffs contend

that defendant PRPA’s counsel fails to understand how Rule 30(b)(6)
operates.

(Docket No. 205 at p. 4.)

Specifically, they argue that

defendant must respond to the Rule 30(b)(6) notice with its own
notice and specify which areas each witness will respond to during
the deposition. (Docket No. 205-1 at pp. 7-8.)
ones, however, who misunderstand the rules.

Plaintiffs are the
Rule 30(b)(6) only

requires an organization to designate a person to testify on behalf
of it.

Fed.R.Civ.P. 30(b)(6).

The rule then states clearly that

“[the organization] may set out the matters on which each person
designated will testify” but does not require the organization to
do

so

(emphasis

plaintiffs’

added).

argument

about

Id.

Therefore,

the

requirements

the
of

Court
Rule

finds

30(b)(6)

unavailing.
Defendant PRPA and their witnesses indicated that they
were ready to testify pursuant to plaintiffs’ Rule 30(b)(6) notice

Civil No. 09-2075 (FAB)

9

of deposition. Because plaintiffs failed to ask questions relating
to their Rule 30(b)(6) notice during the deposition, they cannot
now claim

that

defendants

failed

to comply

with

the

notice.

Therefore, the Court DENIES plaintiffs’ motion to strike, for an
order to show cause, and for sanctions.
C.

Defendant PRPA’s Motion for Protective Order
In

its

response

to

plaintiffs’

motion

to

strike,

defendant PRPA also requested a motion for a protective order
“deeming

[the] remaining unspecified 30(b)(6) discovery issues

irrelevant to the pending motions for summary judgment.”
No. 193 at p. 5.)

(Docket

In support of its argument, defendant PRPA

boldly asserts that “Due to time constraints and other pressing
matters, the defendant only pointed out several issues, figuring
that it would not have been necessary to discuss each and every one
of

the

other

impertinent

plaintiff in his letter.”

30(b)6

[sic]

issues

raised

by

the

Defendant PRPA also argues that “The

Court should note that plaintiff has referred to the 30(b)(6)
issues in a general manner without specifying or discussing any
particular one.”

(Docket No. 193 at p. 5.)

Yet, it also states in

a cursory manner that the “remaining 30(b)(6) issues . . . do not
have any relevance or materiality to [defendants’] statement of
material

uncontroverted

facts

which

are

dispositive

of

the

Plaintiff’s Third Amended Complaint.” Id. at p. 6. Defendant PRPA

Civil No. 09-2075 (FAB)

10

fails to make any developed arguments and fails to point to any
evidence in the record or legal authority in support of its claims.
Therefore, the Court deems these issues waived.

See McDonough v.

Donahoe, 673 F.3d 41, 49 n.14 (1st Cir. 2012) (internal citations
omitted).
Finally, even if the issues were not waived, defendant
PRPA acknowledges that the Court has already ruled on this matter
by listing several specific issues that plaintiffs could not ask
about during its Rule 30(b)(6) deposition.
Docket No. 193 at p. 4.)

(Docket No. 168; see

Defendant PRPA has not stated additional

issues or reasons aside from those listed in its original motion
for protective order, (Docket No. 166), or why the Court should
grant its current motion for a protective order, (Docket No. 193).
“Judges are not mind-readers, so parties must spell out their
issues clearly, highlighting the relevant facts and analyzing onpoint authority.”

Rodriguez v. Municipality of San Juan, 659 F.3d

168, 175 (1st Cir. 2011) (internal citations omitted).

The Court

will not consider defendant PRPA’s perfunctory arguments when it
engages in lazy lawyering. Cf. Mulero-Abreu v. Oquendo-Rivera, 729
F.Supp.2d 498, 510 n.7 (2010).
Because defendant PRPA fails to make any effort at
development argumentation, the Court DENIES its motion for a
protective order.

(Docket No. 193.)

Civil No. 09-2075 (FAB)

11
CONCLUSION

For the reasons expressed, the Court DENIES plaintiffs’ motion
to strike, for an order to show cause, and for sanctions.
No. 185.)

(Docket

The Court also DENIES defendant PRPA’s motion for a

protective order.

(Docket No. 193.)

IT IS SO ORDERED.
San Juan, Puerto Rico, January 23, 2012.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE