R-G Premier Bank of Puerto Rico in receivership by the Federal Deposit Insurance Corporation (FDIC-R) v. Empresas Cerromonte Corp. et al

Filing 136

ORDER adopting Report and Recommendation re 84 Report and Recommendation except as to the Dismissal with Prejudice of the claims. Judgment shall be entered Dismissing the claims without Prejudice. Signed by Judge Juan M Perez-Gimenez on 5/6/2013. (VCC)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
FEDERAL DEPOSIT INSURANCE, CORP.,
Plaintiff,
v.

CIVIL NO. 10-1623 (PG)

EMPRESAS CERROMONTE CORP. et. al.,
Defendant.

O R D E R
Before the Court is the Magistrate Judge’s Report and Recommendation
regarding the Federal Deposit Insurance Corporation’s (“FDIC”)1 motion to
voluntary dismiss its claims against defendants Emerito Estrada RiveraISuzu de Puerto Rico and its principal Digno Emerito Estrada Rivera, his
spouse

Edith

Delia

Colón

Feliciano

and

their

conjugal

partnership

(collectively, “the Estrada defendants”) (Docket No. 84). Having reviewed
the same, id., as well as the limited objection filed by the FDIC (Docket
No. 92), the applicable law, and the record of the case, for the reasons
set forth below, the Report and Recommendation is APPROVED AND ADOPTED in
all its parts, except as to the dismissal with prejudice of the claims
against the Estrada defendants.
Following the issuance of a Report and Recommendation, the Court
reviews de novo the matters delimited by timely and appropriately specific
objections.

See 28 U.S.C. § 636(b) (2004), Fed. R. Civ. P. 72(b) (2004),

and Local Rule 72(d) (2004); see also Borden v. Secretary of Health & Human

1

Bank.

The FDIC was appointed receiver of original plaintiff R-G Premier

Civil No. 10-1623 (PG)

Page 2

Servs., 836 F.2d 4, 6 (1st Cir. 1987) (“Appellant was entitled to a de novo
review by the district court of the [Magistrate’s] recommendations to which
he objected, however he was not entitled to a de novo review of an argument
never raised.”) (citation omitted); Phinney v. Wentworth Douglas Hosp., 199
F.3d 1, 3-4 (1st Cir. 1999). An objection is timely if filed within ten
days of receipt of the Magistrate Judge’s Report and Recommendation.

See

28 U.S.C. § 636(b), Fed. R. Civ. P. 72(b), and Local Rule 72(d). The Court
thereafter “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.” Id. The Court
accordingly reviews defendants objections de novo.
The FDIC timely submitted a limited objection; to wit, that the
dismissal issued by the Court be without prejudice. (Docket No. 92 at 1).
In their motion requesting withdrawal of the claims against the Estrada
Defendants (Docket No. 26), the FDIC did not specify whether the dismissal
requested was with or without prejudice. On the Report and Recommendation
(Docket No. 84), the Magistrate recommended that all claims be dismissed
with prejudice. Docket No. 84 at pg. 7.
The FDIC asserts that it has “obtained information regarding the
Estradas’ involvement with Cerromonte, which might demand filing a claim
against them in the future.” Docket No. 92 at pg. 3. Alternatively, it goes
on to explain, if the Court intends to dismiss with prejudice, the FDIC
would withdraw its request for voluntary dismissal. Id. After evaluating
the FDIC’s request, the Court accepts it.
Hence, having carefully reviewed the Magistrate Judge’s Report and
Recommendation, the Court finds the same to be reasonable and absent of
clear error.
WHEREFORE, in light of the foregoing, the Magistrate Judge’s Report
and Recommendation is APPROVED AND ADOPTED, except as to the Dismissal with

Civil No. 10-1623 (PG)

Page 3

Prejudice of the claims. Judgment shall be entered dismissing without
prejudice the FDIC’s claims against defendants Emerito Estrada Rivera-ISuzu
de Puerto Rico and its principal Digno Emerito Estrada Rivera, his spouse
Edith Delia Colón Feliciano and their conjugal partnership.
IT IS SO ORDERED.
In San Juan, Puerto Rico, May 2, 2013.

S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE