Rosario et al v. Crowley Puerto Rico Services, Inc. et al

Filing 40

OPINION & ORDER DENYING 38 MOTION. Signed by Judge Jay A Garcia-Gregory on 1/17/2013.(RJC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
BEATRIZ ROSARIO, et. al.,
Plaintiffs

v.
CIVIL NO. 11-1769(JAG)
CROWLEY

PUERTO

RICO

SERVICES,

INC., et. al.,
Defendants

OPINION AND ORDER
Garcia-Gregory, D.J.
Currently before the Court is Plaintiffs’ Motion to Alter
or Amend Judgment pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure.1 Plaintiffs seek an amendment of the Court’s
September

28,

2012

judgment,

which

dismissed

their

complaint

with prejudice for failure to establish a claim entitled to
relief. For the reasons outlined below, Plaintiffs’ Motion to
Alter or Amend Judgment is hereby DENIED.

1

The Plaintiffs are Beatriz Rosario, Víctor M. Escudero-Rosario,
and Enid Beatriz Escudero.

2 

CIVIL NO. 11-1769(JAG)
FACTUAL AND PROCEDURAL BACKGROUND

On July 30, 2010, Mr. Víctor Escudero-Aponte (“Escudero”),
a seaman and/or stevedore, resident of Puerto Rico, suffered an
injury during the course of his employment aboard Defendants’
vessel, the TMT Freight Barge Jacksonville. While the vessel was
docked in the territorial and navigable waters of Puerto Rico
and Escudero was working aboard the vessel, he was struck by a
container chassis being driven in reverse by another employee,
causing trauma to his right leg. Escudero died on August 6, 2010
as a result of his injuries.
On August 6, 2011, Plaintiffs filed an Amended Complaint on
the grounds of the general admiralty law of the United States,
the

Jones

Act,

and

the

Longshore

and

Harbor

Workers’

Compensation Act. On September 28, 2012, the Court held that
Plaintiffs failed to state a claim upon which relief could be
granted, given their sole remedy lied within the Puerto Rico
Workmen’s

Accident

Compensation

Act

(“PRWACA”),

rather

than

federal law. As an insured employer under PRWACA, Crowley was
entitled to employer immunity for the work-related injuries and
death

of

dismissing
36).

Escudero.

Accordingly,

Plaintiffs’

complaint

the

Court

entered

with

prejudice.

judgment

(Docket

No.

3 

CIVIL NO. 11-1769(JAG)

Plaintiffs then filed a Motion to Amend or Alter Judgment,
averring

that

granting

the

motion

was

necessary

to

prevent

manifest injustice. (Docket No. 38) Plaintiffs, however, do not
seek

to

amend

or

alter

judgment

as

to

the

dismissal

under

PRWACA’s immunity doctrine in favor of appearing Defendants2.
Rather, Plaintiffs now ask the Court to allow the complaint to
proceed against other unnamed Defendants who are not covered by
the statutory immunity doctrine under PRWACA. Plaintiffs argue
that dismissal of the claim in its entirety would bar them from
carrying on legal proceedings against other Defendants who could
be held liable for negligence or damages in either federal or
state court.
STANDARD OF LAW
Pursuant to Fed.R.Civ.P. 59(e), a party may move the Court
“to

amend

its

judgment

based

on

newly

discovered

material

evidence or because the Court committed a manifest error of law
or fact.” Colon v. Fraticelli, 181 F.Supp.2d 48, 50 (D.P.R.
2002) (citing Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir.
1997)). Rule 59(e), however, is “aimed at reconsideration, [and]
not initial consideration,” and thus is not a proper mechanism
to

advance

arguments

that

should

have

been

presented

before

2

Defendants are: Crowley Puerto Rico Services,
Maritime Services, Inc.; Crowley Towing and
Company, Inc.; Crowley Marine Services, Inc.;
Services, Inc.; and The West of England Ship
Insurance Association’s (Luxembourg) (“Crowley”).

Inc.; Crowley
Transportation
Crowley Liner
Owners Mutual

4 

CIVIL NO. 11-1769(JAG)

judgment was entered, but were not. See Jorge Rivera Surillo &
Co., Inc. v. Falconer Glass Indus., Inc., 37 F.3d 25, 29 (1st
Cir. 1994) (citing F.D.I.C. v. World Univ. Inc., 978 F.2d 10, 16
(1st Cir. 1992)); see also Aybar, 188 F.3d at 16.

DISCUSSION
To cater to Plaintiffs’ request, the Court would need to
allow them to amend their complaint to include new parties and
new claims. Not only that, but the Court would also need to
allow Plaintiffs additional time to serve those parties under
Fed. R. Civ. P. 4, as the original time has elapsed long ago.
Because Plaintiffs have not been diligent in prosecuting their
case, the Court DENIES Plaintiffs’ request.
Extension of Time to Serve Unknown Defendants
It

is

well

known

that

“effectuation

of

service

is

a

precondition to suit.” See Jenkins v. City of Topelka, 136 F. 3d
1274,

1275

(10th

Cir.

1998).

The

service

of

process

is

the

method through which a court may acquire jurisdiction over a
defendant. In the absence of service of process, a court may not
exercise power over a party the complaint names as defendant.
See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526
U.S. 344, 350 (1999). There is time limit of 120 days during
which the plaintiff must deliver a summons and a copy of the
complaint. See FED. R. CIV. P. 4(m).

5 

CIVIL NO. 11-1769(JAG)

The Court may extend the period for service of process if
the plaintiff shows good cause for the delay. Good cause is
shown “when some outside factor ... rather than inadvertence or
negligence, prevented service.” Mann v. Castiel, 681 F.3d 368,
374

(D.C.

Cir.

2012).

However,

courts

have

established

that

simple attorney neglect does not constitute a basis for “good
cause”. See Floyd v. U.S., 900 F.2d 1045 (7th Cir. 1990). Under
Rule 4(m), if “good cause” is shown, “district courts must grant
an extension and, if none is shown, it is discretionary whether
to dismiss or not.” Cuebas v. Davila, 618 F. Supp. 2d 124, 132
(D.P.R. 2009).
“Where unknown defendants exist, however, courts must take
into account a plaintiff's good faith investigation to determine
if ‘good cause’ exists” to justify non-compliance with Rule 4.
Id.

“As a general matter a plaintiff may bring suit against a

fictitious or unnamed party where a good faith investigation has
failed to reveal the identity of the relevant defendant and
there is a reasonable likelihood that discovery will provide
that information.” Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3,
8 (1st Cir. 2007); see also Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiffs request the Court to permit the continuance of
the case against defendants whose identities have not yet been
discovered

and

to

whom

service

of

process

has

not

yet

been

6 

CIVIL NO. 11-1769(JAG)
delivered.

This

request

would

entail

affording

Plaintiffs

additional time to investigate and ascertain the identity of
those defendants, as well as time to effectuate service upon
them.
Unfortunately,

Plaintiffs

do

not

offer

any

reasonable

excuse –other than their own negligence or lack of diligencefor their failure to comply with Rule 4 within the specified
time limit. Plaintiffs have also not shown they have made any
reasonable

effort

to

procure

the

names

of

their

possible

tortfeasors. More than two years have passed since the date of
the accident which led to this claim, and Plaintiffs have not
demonstrated diligence in trying to ascertain the identity of
the

unnamed

Defendants.

See

Corey-Lanuza

v.

Medic

Emergency

Specialties, Inc., 229 F. Supp. 2d 92 (D.P.R. 2002). “[T]he
record is devoid of any measures having been utilized —either
judicial or extrajudicial— in this direction.” Id. at 99.
Plaintiffs complain that because the appearing Defendants
did

not

answer

the

Complaint,

the

discovery

process

never

initiated before the case was dismissed. Thus, Plaintiffs argue
that

it

Defendants
doctrine.

was

not

were
By

possible
covered

their

own

or

for

them

not

by

admission,

to
the

know

whether

employer

Plaintiffs

other

immunity

appear

to

have

relied solely on the discovery process and hold the appearing
Defendants

responsible

for

their

failure

to

substitute

7 

CIVIL NO. 11-1769(JAG)

fictitious names for real names. But Plaintiffs cannot stand
idle and rest entirely upon Defendants for the discovery of
information.

“Plaintiff[s]

must

be

diligent

in

procuring

the

substitution.” Id. at 103. They have not done so, and their
omission spells doom for their request.

Amendment of Claims under Article 1802
Plaintiffs’ motion would also require the complaint to be
amended to include new state law claims. In light of the Court’s
ruling above, this request is moot.
CONCLUSION
“Manifest injustice does not exist where, as here, a party
could easily have avoided the outcome, but instead elected not
to act until after a final order had been entered.” Ciralsky v.
CIA, 355 F.3d 661, 673 (D.C. Cir. 2004). For the reasons stated
above, Plaintiffs motion to alter or amend judgment is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 17th day of January, 2013.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge