Grajales et al v. Puerto Rico Ports Authority et al

Filing 342

MEMORANDUM AND ORDER re 333 Motion requesting Order; and re 334 Motion in Limine. P.R.P.A.'s motion regarding compliance is GRANTED. P.R.P.A.'s motion in limine is GRANTED IN PART as to the expert witness report and DENIED IN PART as to the remaining items. The parties are ORDERED to submit a joint pre-trial order by March 31, 2014. Signed by Judge Francisco A. Besosa on 03/18/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DANIEL GRAJALES, et al.,
Plaintiffs,
v.

CIVIL NO. 09-2075 (FAB)

PUERTO RICO PORTS AUTHORITY, et
al.,
Defendants.

MEMORANDUM & ORDER
BESOSA, District Judge.
Before the Court are two motions by defendant Puerto Rico
Ports Authority (“PRPA”): (1) an “urgent motion to request order
regarding adequate compliance with docket number 331,” (Docket
No. 333); and (2) a motion in limine seeking to exclude items
raised in plaintiffs’ pre-trial memorandum, (Docket No. 334).

For

the reasons stated below, the Court GRANTS PRPA’s urgent motion
regarding the pre-trial memorandum (Docket No. 331), and GRANTS IN
PART and DENIES IN PART PRPA’s motion in limine (Docket No. 334).
I.

Procedural Background
This case was tried before a jury in February, 2013.

plaintiffs’

claims

but

the

retaliation

claim

were

All of

dismissed

pursuant to Federal Rule of Civil Procedure 50, (Docket No. 279),
and the
No. 282.)

jury

deadlocked

as

to

the

retaliation

claim (Docket

Thus, the retaliation claim remains to be re-tried. The

Civil No. 09-2075 (FAB)

2

Court ordered the entry of default against PRPA on August 28, 2013.
(Docket

Nos.

311

&

312.)

On

October

18,

2013,

PRPA

moved

unsuccessfully to set aside the entry of default. (Docket Nos. 315
& 317.)

A default hearing to establish liability has not yet been

held; this case is on the Court’s ready-to-try calendar.

At such

hearing, PRPA may participate but may not present evidence as to
liability or damages.

(Docket No. 331.)

On November 6, 2013, the Court ordered the parties to submit
a joint proposed pre-trial order by November 19, 2013.
No.

331.)

Plaintiff

November 19, 2013.
filed

the

two

submitted

(Docket No. 332.)

above-mentioned

plaintiffs’ pre-trial memorandum.
II.

a

pre-trial

(Docket

memorandum

on

On November 29, 2013, PRPA

motions

raising

issues

with

(Docket Nos. 333 & 334.)

Urgent Motion Regarding Pre-trial Memorandum
PRPA first objects to plaintiffs’ pre-trial memorandum because

(1) it was not “joint;” and (2) it does not provide a clear
statement of plaintiffs’ legal theory, in violation of Local Rule
of Civil Procedure 16(d)(3).1
has

reviewed

1

the

pre-trial

As to the second ground, the Court
memorandum

and

finds

that

it

The rule specifies that a pre-trial order should contain “a
brief statement of the party’s contentions with respect to any
controverted material facts, contested issues of law, including
evidentiary questions, together with supporting authority.” Loc.
R. Civ. P. 16(d)(3).

Civil No. 09-2075 (FAB)

3

sufficiently complies with Local Rule 16; the memorandum provides
a brief description of the controverted factual and legal issues.
(See Docket No. 332.)

Moreover, given that PRPA has already

participated in a jury trial in this case, the Court finds baffling
PRPA’s claim to not understand plaintiffs’ legal theory.
The Court agrees with PRPA, however, regarding the first issue
raised.

Plaintiffs contend that because PRPA is in default and

cannot present evidence as to its liability at the default hearing,
PRPA was not entitled to participate in the pre-trial order.
(Docket No. 337.)

The Court disagrees.

Though it is true that a

“defaulting party ‘is taken to have conceded the truth of the
factual allegations in the complaint as establishing the grounds
for liability . . .,” Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 6263 (1st Cir. 2002) (quoting Franco v. Selective Ins. Co., 184 F.3d
4, 9 n.3 (1st Cir. 1999)), PRPA’s ability to participate in the
case requires that it have the opportunity to contribute to the
joint pre-trial order. Accordingly, PRPA’s motion is GRANTED. The
parties are ORDERED to submit a joint pre-trial order by March 31,
2014.
III. PRPA’s Motion In Limine
Next, PRPA moves to exclude from trial the following evidence
mentioned in plaintiffs’ pre-trial memorandum:

(1) evidence of

Civil No. 09-2075 (FAB)

4

Puerto Rico Department of Labor (“PR DOL”) determinations; (2) the
testimony

of

PR

DOL

investigators;

and

(3)

hearsay

evidence

consisting of a Facebook posting and an expert witness report.
(Docket No. 334.) The Court addresses each category of evidence in
turn.
A.

Evidence of PR DOL Determinations
PRPA cites a Puerto Rico Supreme Court case, Acevedo

Santiago v. Western Digital Caribe, Inc., 140 D.P.R. 452, 468-69
(1996), for the proposition that PR DOL determinations are not
conclusive in a subsequent judicial action.

The Court need not

consider this argument because (1) the cited case is not in English
(see Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58, 67 (1st
Cir. 2008); 48 U.S.C. § 864); and (2) Puerto Rico Supreme Court
evidentiary

decisions

do

not

control

the

district

court’s

evidentiary rulings.
B.

Testimony of PR DOL Investigators
PRPA further contends that the testimony of PR DOL

investigators is barred by (1) the best evidence rule; and (2) the
parol evidence rule.

PRPA contends that because the investigators

intend to testify regarding investigations — the findings of which
were recorded in reports — the best evidence and parole evidence
rules prohibit them from testifying “as to the contents of their

Civil No. 09-2075 (FAB)

5

written reports, as said reports speak for themselves, are the best
evidence of their content, [and] do not require any extrinsic
evidence for their interpretation.”

(Docket No. 334 at pp. 4-5.)

This argument completely misses the mark.
The best evidence rule is codified in Federal Rules of
Evidence 1001 to 1008.

Rule 1002 provides, “An original writing,

recording, or photograph is required in order to prove its content
unless these rules or a federal statute provides otherwise.”
R. Evid. 1002.

Fed.

The rule “requiring the producing of the original

document applies only when the proponent is attempting to prove the
contents or terms of a writing.”

R & R Assocs., Inc. v. Visual

Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984) (quoting G. Lilly, An
Introduction to the Law of Evidence § 116 (1978)).

The fact that

a written record of an event was made does not mean that the rule
applies to bar nondocumentary evidence of that event.
Evid. 1002 advisory committee’s note.

Fed. R.

Were the Court to accept

this argument, it would engender an absurd disincentive against
investigative

note-taking,

and

a

problematic

preference

documentary recollections over testimonial recollections.

for

Here,

the named witnesses are absolutely permitted to testify from their
first-hand experience about the investigations they undertook.

Civil No. 09-2075 (FAB)

6

PRPA further contends that the parol evidence rule bars
“the introduction of prior or contemporaneous written or oral
arguments that contradict, vary or broaden an integrated writing.”
(Docket No. 334 at p. 3) (quoting Berezin v. Regency Bank, 234 F.3d
68, 72 (1st Cir. 2000)).

The parol evidence rule is a rule of

substantive contract law.

See Restatement (Second) of Contracts §

213 (1981); Wheeler v. Blumling, 521 F.3d 1, 4-5 (1st Cir. 2008).
As such, the rule is wholly inapplicable here.

This case is not a

contract dispute, nor do the investigators purport to testify
regarding a contract.
C.

Hearsay Evidence
Lastly, PRPA seeks to exclude (1) an expert witness

report, and (2) evidence of a Facebook posting by a PRPA employee
as

inadmissible

hearsay.

The

Court

witness’s report is inadmissible hearsay.

agrees

that

the

expert

Redondo Constr., Co. v.

Izquierdo, 929 F. Supp. 2d 14, 19 (D.P.R. 2013).

Nevertheless, at

trial the expert witness may be permitted, or required, to disclose
the facts or data upon which his or her opinion is based.

See Fed.

R. Evid. 705.
The Facebook posting by Jorge Santiago, an employee of
PRPA,

is

likely

admissible

as

an

opposing

party’s

statement

pursuant to Rule 801(d)(2)(D). If this evidence is offered at

Civil No. 09-2075 (FAB)

7

trial, the Court will at that time determine whether the evidence
is admissible pursuant to Rule 801’s requirements.
Accordingly, PRPA’s motion in limine is GRANTED IN PART
as to the expert witness report, and DENIED IN PART as to the
Facebook posting, the PR DOL investigators’ testimony, and evidence
of the PR DOL determination.
IV.

Conclusion
For

the

reasons

compliance is GRANTED.

stated

above,

PRPA’s

motion

regarding

The parties are ORDERED to submit a joint

pre-trial order by March 31, 2014.

PRPA’s motion in limine is

GRANTED IN PART as to the expert witness report and DENIED IN PART
as to the remaining items.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 18, 2014.

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