Rolon et al v. Univision Television Group, Inc.
Filing
23
OPINION AND ORDER granting 9 Motion to Dismiss. Signed by Judge Jay A Garcia-Gregory on 9/27/2012. (RJC) Modified on 9/27/2012 to add word opinion(ab).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WANDA ROLON, et al.,
Plaintiffs
v.
CIVIL NO.
11-1903 (JAG)
UNIVISION TELEVISION GROUP,
INC.,
Defendant.
OPINION & ORDER
Garcia-Gregory, D.J.
Defendant
Univision
Television
Group,
Inc.
(“Univision”)
moves the Court to abstain from deciding the present case under
Colorado River Water Conservation District v. United States, 424
U.S. 800 (1976), and Wilton v. Seven Falls, 515 U.S. 277 (1995).
Upon
consideration
of
Univision’s
motion,
as
well
as
the
opposition filed by Plaintiffs Wanda Rolon, Pablo Ortega and the
conjugal partnership comprised between them (“Plaintiffs”), the
Court
finds
abstention
that
is
this
proper.
is
The
one
of
Court
those
rare
therefore
cases
GRANTS
in
which
Univision’s
motion. Under Colorado River, a district court may elect to stay
or dismiss the case in question. On the circumstances present
here, the Court finds it proper to dismiss this case without
prejudice.
2
CIVIL NO. 11-1903 (JAG)
BACKGROUND
On October 20, 2010, Plaintiffs filed a tort action in
state
court
Velez
against
Arcelay,
Univision
her
husband
Puerto
and
Rico,
the
reporter
conjugal
Yolanda
partnership
comprised between them. (Docket No. 22-1). The complaint sought
damages for alleged defamation and slander suffered at the hands
of the state court defendants. (Docket No. 9, p. 2). Further,
the
complaint
requested
declaratory
judgment
on
an
issue
apparently unresolved by the Puerto Rico Supreme Court. (Id.).
On
September
24,
2011,
Plaintiffs
filed
an
action
in
diversity against defendant Univision Television Group, Inc.,
alleging the same facts and seeking the same relief as the suit
filed in state court. 1 (Docket No. 9, p. 2; Docket No. 22-1).
Like
its
state-court
counterpart,
the
federal
complaint
is
essentially a slander and defamation action brought under the
Constitution of Puerto Rico, the Libel and Slander Act of 1902,
1
Plaintiffs had originally filed the federal action on October
20, 2010. (See Civ. No. 10-2018 (JAG)). However, Plaintiffs
moved to dismiss that case without prejudice under Rule 41 in
August 2011. The Court granted their request, and judgment was
entered on September 12, 2011. Just two days after entry of
judgment, Plaintiffs sued again, filing the same complaint
against the same defendant in federal court. This time, the case
was assigned to Judge Dominguez. Suspecting that Plaintiffs were
judge-shopping, Univision filed a motion requesting a transfer
to this Court. Judge Dominguez granted Univision’s request, and
with this Court’s consent, the case was transferred back to the
undersigned’s docket.
3
CIVIL NO. 11-1903 (JAG)
and Puerto Rico’s tort statute, Article 1802 of the Puerto Rico
Civil Code. (See Docket No. 1, p. 32).
Apart
Court
to
from
damages,
“declare
the
the
present
respective
complaint
rights
and
petitions
duties
the
of
the
parties in this matter.” (Id.). Finally, Plaintiffs request that
“the
matter
concerning
the
applicability
of
presumptions
in
defamatory cases be certified to the Supreme Court of Puerto
Rico
through
a
Writ
of
Certification
prior
to
the
final
adjudication of all claims brought before this Honorable Court.”
(Id.).
ANALYSIS
Federal courts have a “virtually unflagging obligation” to
exercise their jurisdiction and resolve matters properly before
them. Colorado River, 424 U.S. at 817. There are exceptions to
this rule, and departure from it is allowed under “exceptional
circumstances, where denying a federal forum would clearly serve
an important countervailing interest.” Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 716 (1996). One of these exceptions,
established by the Supreme Court in Colorado River, allows a
federal
court
to
decline
the
exercise
of
jurisdiction
upon
“considerations of wise judicial administration, giving regard
to
conservation
disposition
of
of
judicial
litigation.”
resources
Colorado
River,
and
424
comprehensive
U.S.
at
817
4
CIVIL NO. 11-1903 (JAG)
(quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342
U.S. 180, 183 (1952)).
To determine whether abstention is proper, the Court must
assess whether this case presents exceptional circumstances that
“tip
a
scale
federal
heavily
weighted
jurisdiction.”
in
favor
Nazario-Lugo
v.
of
the
exercise
Caribevision
of
Holdings,
Inc., 670 F.3d 109, 115 (1st Cir. 2012). Over the years, federal
caselaw has amassed a series of factors that help a district
court make this determination. To wit:
1.
2.
3.
4.
5.
6.
whether either court has assumed jurisdiction over a res;
the geographical inconvenience of the federal forum;
the desirability of avoiding piecemeal litigation;
the order in which the forums obtained jurisdiction;
whether state or federal law controls;
the adequacy of the state forum to protect the parties'
interests;
7. the vexatious or contrived nature of the federal claim;
8. respect for the principles underlying removal jurisdiction.
Nazario-Lugo, 670 F.3d at 115. This list is not exhaustive, and
no single factor is determinative.
The
River
decision
doctrine
“to
must
yield
rest
on
jurisdiction
the
clearest
under
of
the
Colorado
justifications
displayed by exceptional circumstances.” Id. (citing Moses H.
Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 25 (1983);
Colorado River, 424 U.S. at 818–19). The Court will now examine
whether Univision’s arguments tip the scale convincingly in the
direction of abstention.
5
CIVIL NO. 11-1903 (JAG)
The
Court
will
streamline
this
analysis
by
noting
that
factors 1, 2, 6, 7 and 8 are relatively inconsequential to our
analysis.
over
a
First,
res.
geographical
neither
Second,
court
here
both
Third
terms.
forums
has
are
(sixth
assumed
equally
factor),
jurisdiction
convenient
given
that
in
the
complaint relies exclusively on state law, there can be no doubt
that
the
Puerto
Rico
forum
is
well-equipped
to
protect
the
parties' interests. See United States v. Fairway Capital Corp.,
483 F.3d 34, 43 (1st Cir. 2007) (holding that the adequacy of
the
state
forum
abstention).
is
relevant
only
when
it
would
disfavor
Fourth (seventh factor), there is no federal claim
asserted here. Finally (eighth factor), since this case is not
before the Court on a removal petition, nor does it seem that
the principles underlying removal jurisdiction are injured, the
eighth factor is also inconclusive.
The
Court
also
discards
from
the
outset
Plaintiffs’
argument that Colorado River analysis is precluded because there
is
no
parallel
state
action
asserted
against
the
federal
defendant here. Several circuits have held that the parallel
nature
of
the
lawsuits
is
not
defeated
merely
because
the
plaintiff chose to sue some parties in state court and others in
federal
court.
See
Sto
Corp.
v.
Lancaster
Homes
Inc.,
11
Fed.Appx. 182, 187 (4th Cir. 2001); see also Nakash v. Marciano,
6
CIVIL NO. 11-1903 (JAG)
882 F.2d 1411, 1417 (9th Cir. 1989) (stating that courts “should
be
particularly
reluctant
to
find
that
the
actions
are
not
parallel when the federal action is but a ‘spin-off’ of more
comprehensive state litigation.”). This rings especially true
when, as is the case here, the underlying facts and the claims
asserted in both forums are essentially the same.
With
whether
the
stage
Colorado
set,
River
the
Court
abstention
will
is
proceed
to
appropriate
examine
under
the
third, fourth and fifth factors outlined above.
Avoiding Piecemeal Litigation
The First Circuit has clarified that, in assessing this
factor, courts should not focus on the “risk of inexpediency,”
Nazario-Lugo, 670 F.3d at 119, or the “routine inefficiency that
is the inevitable result of parallel proceedings.” Jimenez v.
Rodriguez-Pagan,
597
F.3d
18,
29
(1st
Cir.
2010).
Similarly
immaterial is the fact that both forums could end up deciding
the same issue. KPS & Assocs., Inc. v. Designs by FMC, Inc., 318
F.3d 1, 10-11 (1st Cir. 2003). Instead, the Court must center
its
analysis
litigating
“on
suits
the
implications
deriving
from
the
and
practical
same
effects
transaction
in
of
two
separate fora, and weigh in favor of dismissal only if there is
some exceptional basis for dismissing one action in favor of the
other.” Id. (internal quotation marks and citations omitted).
7
CIVIL NO. 11-1903 (JAG)
The benchmark for abstention under this factor is whether
there
is
a
litigation.
federal
See
policy
Colorado
in
favor,
River,
424
or
against,
U.S.
at
piecemeal
819
(finding
abstention appropriate in case where federal law created policy
of avoiding piecemeal litigation with respect to water rights);
cf.
Moses
H.
Cone,
460
U.S.
at
20
(holding
abstention
inappropriate because Federal Arbitration Act required piecemeal
litigation). Here, however, there is no federal policy in sight.
But the First Circuit has acknowledged that the “potential for
fragmented
adjudication,
to
be
distinguished
from
merely
duplicative adjudication,” is a factor that militates in favor
of abstention even in the absence of any federal policy on the
matter. Jimenez, 597 F.3d 18 (citing Sto Corp. v. Lancaster
Homes, Inc., 11 Fed.Appx. 182, 188 (4th Cir. 2001); Federated
Rural Elec. Ins. Corp. v. Ark. Elec. Coops., Inc., 48 F.3d 294,
298 (8th Cir. 1995); Cont'l Cas. Co. v. Robsac Indus., 947 F.2d
1367, 1373 (9th Cir. 1991), overruled on other grounds, Gov't
Employees Ins. Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998)).
The policies that undergird Colorado River abstention are
rooted
in
considerations
of
efficiency
and
favor
the
“comprehensive disposition of litigation.” Colorado River, 424
U.S. at 817. The Eighth Circuit noted that this policy is best
served
by
choosing
the
forum
that
holds
the
“most
complete
8
CIVIL NO. 11-1903 (JAG)
action.” See Federated Rural Elec. Ins. Corp., 48 F.3d 294 at
298.
Accordingly,
this
type
of
abstention
is
well-suited
to
those cases where, as here, “non-diverse parties are joined in
the state-court action but not the federal action.” Jimenez, 597
F.3d at 30.
In Sto Corp., the Fourth Circuit decided along these lines.
There, the plaintiff sued in both the federal and state forum,
but one of the state-court defendants was not joined in the
federal
action.
Circuit
found
Sto
that
Corp.,
the
11
Fed.Appx.
potential
for
at
182.
The
piecemeal
Fourth
litigation
existed because a ruling on the federal defendant’s liability
may not have reached the state-court defendant, thus leaving an
issue open for resolution in state court. Id. at 188; see also
Jimenez, 597 F.3d at 30 (finding abstention appropriate where
state court action could comprehensively adjudicate defendants’
liability to diverse and non-diverse plaintiffs).
Like in Sto and Jimenez, the potential for fragmented and
inconsistent
litigation
here
weighs
in
favor
of
abstention.
Plaintiffs claim that reporter Yolanda Velez-Arcelay, employed
by
Univision
Puerto
Rico,
2
“viciously
defamed
and
slandered
2
“Univision Puerto Rico” is a named defendant in the state court
complaint. (See Docket No. 22-1). Though Univision Puerto Rico
is not mentioned in the complaint filed here, the pleadings
allow for an inference that Univision Television Group, the
9
CIVIL NO. 11-1903 (JAG)
Plaintiff Rolón” by falsely accusing Rolón of making illegal
campaign contributions with religious funds, and “by tying her
to a group of three other religious leaders whose names appeared
on the internet as being actively engaged in politics at the
expense of their congregations.” (Docket No. 1, ¶ 20-21). At
some point in the television show, furthermore, a suggestion was
made
that
“the
religious
leaders
engaged
in
illegal
money
laundering activities, which are proscribed under Article 228 of
the Penal Code of Puerto Rico.” (Id. at ¶ 23).
In the federal action, Plaintiffs essentially claim that
defendant
Univision
is
vicariously
liable
for
the
defamatory
expressions made by its employee. 3 Consequently, the resolution
of this issue depends on the resolution of the underlying claim
against
the
reporter.
While
the
state
court
could
comprehensively adjudicate both the liability of the reporter
and
that
of
Univision,
this
Court
cannot,
for
there
is
no
complete diversity among all parties. Consequently, the “most
complete action,” or at least the one which has the potential of
federal defendant here, controls or otherwise owns Univision
Puerto Rico. (See Docket No. 1, ¶ 5-15).
3
Plaintiffs assert that, “[s]ince defendant UTG is the owner of
both WLII and WSUT-TV and as such exercised complete control
and/or tutelage over both television stations, upon information
and belief, the transmission aired on September 27, 2010 on
which the plaintiff Wanda Rolón was publicly defamed by reporter
Yolanda
Velez-Arcelay
was
broadcasted
with
the
consent,
authorization and/or approval of defendant UTG.” (Docket No. 1,
¶ 32)(our emphasis).
10
CIVIL NO. 11-1903 (JAG)
being so, is clearly the one in state court. The Court also
notes that, if this action is allowed to remain, our decision
here could potentially lie at odds with the one in the local
court. The claim asserted by Plaintiffs against Univision is in
a sense dependent of the one made against the reporter; for
instance, it would not be consistent for this Court to find
Univision liable if the state court finds that the comments made
by the reporter are not defamatory. Given the preference towards
comprehensive disposition of litigation, the Court finds this
factor tilts the scale heavily towards abstention.
Fourth Factor: Order in which Jurisdiction Was Obtained
This
factor
also
favors
abstention.
Though
Plaintiffs
initially filed suit in both forums at the same time, they later
voluntarily dismissed without prejudice the federal action. In
an
apparent
judge-shopping
attempt,
Plaintiffs
filed
anew
in
federal court. (See Footnote 1, supra). At this point, then, a
span of one year separated their state and federal suits.
Nevertheless, the matter is not settled by looking at which
complaint
was
filed
first.
The
Court
must
also
look
at
the
progress each case has made in both forums. See Moses H. Cone,
460 U.S. at 21. This case is unfortunately still at the pleading
stages, due in part to Plaintiff’s dismissal of the first case,
and also because of the congestion of civil cases in this Court.
11
CIVIL NO. 11-1903 (JAG)
In contrast, by the time the present motions were fully briefed
(around eight months ago), the state court case was already at
an
advanced
exchanged
stage.
and
By
that
answered
and
time,
interrogatories
depositions
had
had
been
been
taken.
Furthermore, the state court had scheduled a pretrial hearing
for February 21, 2012. (See Docket No. 22, p. 2). Therefore, it
cannot be disputed that the state case is, for better or worse,
“running well ahead” of this one. Moses H. Cone, 460 U.S. at 22.
Consequently, this factor clearly weighs in favor of abstention.
Fifth Factor: Whether State or Federal Law Controls
This factor presents perhaps the most compelling reason to
abstain under Colorado River in this case. To start with, the
case
at
bar
presents
no
issue
of
federal
law
whatsoever.
Instead, the entire complaint is grounded exclusively under the
laws and constitution of Puerto Rico. (See Docket No. 1).
Not only that, but both parties agree that the complaint
poses a novel legal issue based on Puerto Rico constitutional
law.
In
Puerto
essence,
Rico
–in
Plaintiffs
contrast
to
argue
the
that
the
federal
Constitution
standard
of
of
law
regarding defamation- allows for a “judicial presumption which
shifts
the
burden
of
proof
[in
a
defamation
case]
to
the
defendant.” (Docket No. 1, ¶ 69). Plaintiffs have asked this
Court to certify the matter to the Supreme Court of Puerto Rico.
12
CIVIL NO. 11-1903 (JAG)
According to defendants, the complaint filed in state court
also asks that court to certify the same question. It is unclear
whether the state court actually granted the request. To date,
however, the parties have not informed the Court of any decision
by the Supreme Court on the matter. And absent such a decision,
this Court would have to resolve the issue itself. The novel
nature of Plaintiff’s argument, coupled with the fact that it
probably
poses
constitutional
a
law,
difficult
forces
the
question
of
conclusion
Puerto
Rican
this
factor
that
weighs heavily in favor of abstention. See Jimenez, 597 F.3d at
30
(“abstention
may
be
preferable
when
the
parties'
claims
present particularly novel, unusual or difficult questions of
legal interpretation”) (citing Elmendorf Grafica, Inc. v. D.S.
Am. (East), Inc., 48 F.3d 46, 52 (1st Cir. 1995)).
A Final Note
Univision also argues that this Court has discretion to
abstain
under
Wilton
v.
Seven
Falls,
515
U.S.
277
(1995),
because Plaintiffs request declaratory relief. While this would
be true if Plaintiffs had only requested declaratory relief, the
fact
that
the
complaint
exponential
and
unnecessary
analysis.
also
requests
degree
of
damages
complexity
adds
to
an
this
13
CIVIL NO. 11-1903 (JAG)
Normally,
if
a
federal
plaintiff
seeks
coercive
relief,
such as damages or an injunction, a district court may abstain
only in the presence of “exceptional circumstances.” Colorado
River,
424
U.S.
at
817.
In
contrast,
a
different
standard
applies if what is sought is declaratory relief. In that case,
“a
district
court
has
broad
discretion
to
stay
the
federal
action as long as the necessary parties have been joined in the
state court proceeding and the claims of all parties in interest
can
satisfactorily
Massachusetts
be
Biologic
adjudicated
Laboratories
by
of
that
the
tribunal.”
University
of
Massachusetts v. MedImmune, LLC, 2012 WL 2552317, *3 (D.Mass.
2012)(citing Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491,
495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 281–90
(1995)).
The problem lies where the district court is faced with a
mixed complaint, seeking both declaratory and coercive relief.
In
this
situation,
there
is
a
gargantuan
split
among
the
Circuits on the question of which standard to apply. At least
five distinct approaches have emerged. See New England Ins. Co.
v. Barnett, 561 F.3d 392, 395–96 (5th Cir. 2009) (cataloguing
the approaches). As of today, the First Circuit has yet to take
a clear position on which of these approaches it will choose, or
whether it will fashion its own. MedImmune, 2012 WL 2552317 *5.
14
CIVIL NO. 11-1903 (JAG)
Given that the Court believes abstention under the tougher
“exceptional circumstances” test is appropriate here, it will
decline to address Univision’s argument regarding Seven Falls
and Brillhart at this juncture.
CONCLUSION
Considering all the relevant factors discussed above, and
giving due regard to “conservation of judicial resources and
comprehensive disposition of litigation,” Colorado River, 424
U.S. at 817, the Court hereby abstains from deciding this case.
Judgment shall therefore be entered dismissing this case without
prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 27th day of September, 2012.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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