Albizu-Merced et al v. Autoridad de Energia Electrica de Puerto Rico
Filing
145
OPINION AND ORDER denying 134 Motion in Limine; granting 141 Motion for Reconsideration. Judgment shall be entered accordingly. Signed by Judge Jay A. Garcia-Gregory on 11/12/2014. (CLM) Modified on 11/12/2014 to correct title (cm).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALBIZU-MERCED, et al.,
Plaintiffs,
v.
CIVIL NO. 11-1969(JAG)
THE PUERTO RICO ELECTRIC
POWER AUTHORITY
Defendant.
OPINION AND ORDER
Garcia-Gregory, D.J.
Before the Court are a Motion in Limine to Exclude Evidence
and Witnesses filed by Juan Albizu-Merced and Maria E. Martinez
(collectively “Plaintiffs”), (Docket No. 134), and a Motion for
Reconsideration under Fed. R. Civ. P. 59 filed by the Puerto
Rico Electric Power Authority (“PREPA” or “Defendant”). (Docket
No. 141). For the reasons stated below, the Motion in Limine is
hereby
DENIED
and
the
Motion
for
Reconsideration
is
hereby
GRANTED.
Since
the
factual
background
of
this
case
was
already
discussed in the Opinion and Order denying Defendant’s Motion
for Summary Judgment, (Docket No. 131), the Court will proceed
directly to the legal analysis and discussion of the two pending
motions.
Civil No. 11-1969 (JAG)
2
DISCUSSION
A. Plaintiffs’ Motion in Limine
Plaintiffs ask this Court to exclude Defendant’s witnesses,
Marisabel
Cordero-Bigay
and
Teresa
Mercado-Roman,
and
their
respective testimonies. (Docket Nos. 134, 143). Plaintiffs argue
that
the
witnesses
and
their
testimonies
should
be
excluded
because they were not identified in a timely fashion as required
in Fed. R. Civ. P. 26(a)(3). Id.
Rule 26(a)(3) establishes that parties must identify those
witnesses
that
they
expect
to
use,
as
well
as
disclose
any
relevant evidence that they may present at trial. Failure to do
so means that the nondisclosing party will be unable to use the
witnesses “unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). District courts have broad
discretion to determine whether the late disclosure is harmful
or unjustified for purposes of Rule 37(c)(1).
See, e.g.,
S.
States Rack And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d
592, 597 (4th Cir. 2003); Thibeault v. Square D Co., 960 F.2d
239, 246 (1st Cir. 1992).
The
First
preclusion
Circuit
inquiry
is
has
indicated
mainly
upon
“that
surprise
the
and
focus
of
a
prejudice,
including the opponent’s ability to palliate the ill effects
stemming from the late disclosure.” Thibeault, 960 F.2d 239, 246
(1st Cir. 1992) (citing Johnson v. H.K. Webster, Inc., 775 F.2d
Civil No. 11-1969 (JAG)
3
1, 7 n.7 (1st Cir. 1985)) (emphasis added). Among the factors to
be
considered
as
part
of
this
preclusion
inquiry
are
“the
conduct of the trial, the importance of the evidence to its
proponent, and the ability of the [opposing] party to formulate
a response.” Licciardi v. TIG Ins. Grp., 140 F.3d 357, 363 (1st
Cir. 1998) (quoting Johnson, 775 F.2d at 8)). District courts in
other circuits have also considered: (1) the surprise to the
opposing party; (2) the possibility that the testimony would
disrupt
the
trial;
and
(3)
the
explanation
for
the
late
disclosure. See, e.g., S. States Rack And Fixture, Inc., 318
F.3d
at
595-96
district
courts
(listing
in
several
carrying
out
factors
the
that
Rule
should
37(c)(1)
guide
exclusion
analysis); Woodworker's Supply, Inc. v. Principal Mut. Life Ins.
Co., 170 F.3d 985, 993 (10th Cir. 1999) (listing and explaining
the various factors to be applied in an exclusion analysis).
There is no question that Defendant’s failure to identify
the witnesses violated Rule 26(a)(3). As to whether Defendant’s
late
disclosure
was
either
justified
or
harmless,
the
Court
recognizes that this is admittedly a close question and finds
that the factors weigh slightly in favor of Defendant. First,
the testimony of the witnesses is essential to Defendant’s legal
theory and, arguably, the most important piece of evidence in
this
case.
underlying
As
it
will
Plaintiffs’
be
discussed
due
process
below,
claim
the
is
main
whether
issue
the
Civil No. 11-1969 (JAG)
4
notifications of the September 16, 2010 and the December 8, 2010
orders were sent and mailed to Plaintiffs. The sworn statements
of Ms. Cordero-Bigay and Ms. Mercado-Roman indicate that they
both prepared and signed such notifications, which were then
sent by regular mail to Plaintiffs. (Docket No. 142; Exs. 1-2).
This testimony is a key piece of evidence that is particularly
important and relevant to this case.
Second, the use of these witnesses should not come as too
much of a surprise to Plaintiffs. Defendant had already produced
the notification of the September 16 Order as signed by Ms.
Cordero-Bigay and the notification of the December 8 Order as
signed
by
Ms.
Mercado-Roman.
(Docket
No.
26;
Exs.
8,
13).
Consequently, Plaintiffs had knowledge of the existence of both
witnesses and their relationship to the notifications.
Third, to the extent that Plaintiffs have been prejudiced
by the late disclosure of Defendant’s witnesses, Plaintiffs had
“ample
time
to
cope
with
any
surprise
or
depose
the
witness[es].” Zoltek Corp. v. United States, 71 Fed. Cl. 160,
169-70 (2006) (citing Moody Nat'l Bank of Galveston v. GE Life &
Annuity Assurance Co., 270 F.Supp.2d 875, 879 n.1 (S.D. Tex.
2003); Wechsler v. Hunt Health Sys., Ltd., 198 F.Supp.2d 508,
527 (S.D.N.Y. 2002); Bellinger v. Deere & Co., 881 F.Supp. 813,
817 (N.D.N.Y. 1995)). When Defendant decided to identify the
witnesses, there were still five months prior to trial. Instead
Civil No. 11-1969 (JAG)
of
asking
the
depositions,
Court
Plaintiffs
5
for
leave
moved
to
to
take
these
two
the
trial
reschedule
simple
to
an
earlier date. (Docket No. 140). It follows that Plaintiffs were
not really interested in coping with the prejudice that could
have stemmed from Defendant’s late disclosure.
In conclusion, given the importance of the testimony and
Plaintiffs’ “ability to palliate the ill effects stemming from
the late disclosure,” the Court finds that exclusion of the
evidence
is
unwarranted
circumstances.
Thibeault,
and
960
inappropriate
F.2d
at
246;
under
see
these
also
Zoltek
Corp., 71 Fed. Cl. at 169-70 (finding that the “[e]xclusion of
evidence is an extreme sanction and should be applied only when
lesser sanctions are inadequate.”) (citations omitted).
Nonetheless, the Court also finds that Defendant did not
provide an adequate justification for its failure to comply with
Rule
26(a)(3).
knowledge
to
Defendant
identify
both
had
sufficient
witnesses
during
opportunity
and
discovery,
and,
thus, its procrastination cannot be excused. Consequently, as an
alternative to exclusion, the Court will award Plaintiffs the
costs for bringing the Motion in Limine and for responding to
Defendant’s Motion for Reconsideration, which relied in great
part upon the testimony of both witnesses. See Fed. R. Civ. P.
37(c)(1) (providing for other sanctions to be awarded for Rule
26 violations).
Civil No. 11-1969 (JAG)
6
B. Defendant’s Motion for Reconsideration
Defendant has filed a motion for reconsideration of this
Court’s
denial
(Docket
No.
Plaintiffs
of
Defendant’s
141).
were
Motion
Defendant,
precluded
inter
from
for
Summary
alia,
filing
Judgment.
argues
the
that:
present
(1)
suit
in
federal court because they failed to appeal the Administrative
Judge’s Resolution before the Puerto Rico Court of Appeals; (2)
PREPA
had
receipt
no
of
further
the
obligation
orders
by
of
verifying
Plaintiffs;
or
and,
confirming
finally,
(3)
Plaintiffs were indeed notified of both the September 16 and
December 8 orders. Id.
PREPA’s
first
argument
misunderstands
the
nature
of
lawsuits filed under 42 U.S.C. § 1983. Contrary to Defendant’s
allegations,
PREPA’s
Plaintiffs
are
administrative
not
seeking
determination.
judicial
Instead,
review
of
crux
of
the
Plaintiffs’ claim is the denial of their federally protected
rights, i.e.,
without
due
Plaintiffs
exhaust
State
the right not to be deprived from electricity
process
bringing
of
suit
administrative
of
Fla.,
457
law.
It
under
§
remedies.
U.S.
496,
is
1983
Patsy
498
well
established
are
v.
(1982);
not
Bd.
required
of
see
that
to
Regents
of
also
Kercado-
Melendez v. Aponte-Roque, 829 F.2d 255, 259 (1st Cir. 1987)
(rejecting the argument that a section 1983 suit “should not
have
been
permitted
.
.
.
in
federal
court
because
of
the
Civil No. 11-1969 (JAG)
7
availability of an appeal within the Puerto Rico administrative
and judicial apparatus.”). Since the whole idea of § 1983 was to
create a right of action that provides immediate judicial access
to the federal courts, Plaintiffs need not first seek relief
from state and local authorities. Id. Consequently, this federal
forum
is
available
to
Plaintiffs
to
seek
redress
for
any
potential violations of their federally protected rights.
Defendant, however, is entitled to judgment as a matter of
law because the deprivation of electricity complied with the
Fourteenth Amendment’s due process of law guarantee. Procedural
due process requires both fair notice of impending state action
and an opportunity to be heard, each of which is a separate
feature governed by different standards. See Dusenbery v. United
States, 534 U.S. 161, 168 (2002) (providing the standard for the
notice
requirement);
Mathews
v.
Elridge,
424
U.S.
319,
333
(1976) (providing a three-prong test for the opportunity to be
heard,
which
is
related
to
the
adequacy
of
the
process
provided).
As
to
the
first
feature,
notice
“must
be
reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action” or deprivation. Mullane
v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)
(emphasis added). Whenever the interested party’s identity is
known or reasonably ascertainable, such as in this case, the
Civil No. 11-1969 (JAG)
8
effort must be reasonably calculated to effect actual notice.
Id.
339
U.S.
at
315.
Actual
notice,
however,
is
not
constitutionally required. See Jones v. Flowers, 547 U.S. 220,
234-35 (2006) (“Due process does not require that a property
owner receive actual notice before the government may take his
property.”);
Instead,
see
due
reasonably
also
process
certain
Dusenbery,
is
to
met
inform
534
whenever
those
U.S.
notice
at
168
“is
affected”
in
or,
(2002).
itself
“where
conditions do not reasonably permit such notice, . . . the form
chosen is not substantially less likely to bring home notice
than other of feasible and customary substitutes.” Mullane, 339
U.S. at 315.
Since actual notice is not required, Plaintiffs’ assertion
that they did not receive any notification of the Adjudicative
Hearing and of the Administrative Judge’s denial of Plaintiffs’
motion for reconsideration is irrelevant for purposes of their
due process claim. Defendant has met its burden of showing that
it provided notice reasonably calculated to effect actual notice
when it sent the notifications via regular mail. Defendant has
provided this evidence in the form of the notifications that
were filed and mailed to Plaintiffs and the sworn statements of
Ms. Cordero-Bigay and Ms. Mercado-Roman. (Docket No. 142; Exs.
1-2).
These sworn statements show that the notifications of the
orders were prepared and sent via regular mail according to the
Civil No. 11-1969 (JAG)
9
established procedure of PREPA’s Clerk’s Office of Adjudicative
Proceedings. Id.
Plaintiffs
have
not
offered
any
evidence
to
dispute
or
contradict this fact. Instead, Plaintiffs argue that PREPA has
not produced any evidence showing that the notifications were in
fact received. Since the failure to receive the notifications
does not necessarily entail that PREPA had failed to mail them,
it follows that Plaintiffs’ allegations, insofar as they relate
to
PREPA’s
mailing
of
the
notifications,
are
“inherently
incredible” and contain unreasonable inferences. See Ricci v.
Alternative
(“Evidence
Energy
Inc.,
presented
on
211
F.3d
summary
157,
judgment
161
(1st
may
be
Cir.
2000)
‘inherently
incredible’ and so disregarded.”) (citation omitted);
Greenburg
v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.
1987)
of
(stating that courts need not resolve conflicts in favor
the
nonmoving
party
when
the
evidence
presented
is
“inherently incredible”).
Plaintiffs
also
contend
that
PREPA
could
have
sent
the
notifications via certified mail, thus ensuring actual notice.
(Docket No. 126).
The Due Process Clause, however,
does not
require the use of certified mail. See Akey v. Clinton Cnty.,
N.Y., 375 F.3d 231, 235 (2d Cir. 2004) (“As notice by mail is
deemed to be reasonably calculated to reach property owners, the
state is not required to go further, despite the slight risk
Civil No. 11-1969 (JAG)
that
notice
sent
by
10
ordinary
mail
might
not
be
received.”)
(emphasis added).
In fact, the Supreme Court has noted that “certified mail
is dispatched and handled in transit as ordinary mail,” and,
since the signature requirement of certified mail limits when
this type of mail may be delivered, it follows that ordinary
mail
increases
the
possibility
of
actual
notice.
See
Snider
Int'l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 148
(4th Cir. 2014) cert. denied, 134 S. Ct. 2667 (2014) (quoting
Jones, 547 U.S. at 234-35). In any event, any advantages that
certified
mail
may
have
over
ordinary
mail
in
terms
of
conferring actual notice do not justify making certified mail
the
constitutional
threshold
for
due
process
purposes.
Id.
(quoting Dusenbery, 534 U.S. at 172) (“[O]ur cases have never
held
that
improvements
necessarily
in
demonstrate
the
the
reliability
infirmity
of
of
new
those
procedures
that
were
replaced.”)).
In
determining
whether
the
type
of
notice
provided
is
reasonably calculated to confer actual notice, it is safe to
conclude
that
notice
constitutional
threshold
identities
the
of
via
of
ordinary
due
recipients
mail
process.
are
In
known,
satisfies
fact,
such
as
the
where
the
here,
due
process requires “a serious effort to inform them personally of
the
[action],
at
least
by
ordinary
mail
to
the
record
Civil No. 11-1969 (JAG)
11
addresses.” Mullane, 339 U.S. at 316 (emphasis in original).
This is exactly what PREPA did.
PREPA’s
recorded
mailing
address
requirement
of
of
via
the
the
notifications
regular
Due
mail
Process
to
satisfies
Clause.
Plaintiffs’
the
notice
Specifically,
such
mailing was reasonably calculated to effect actual notice since
Plaintiffs had already received other notifications in the same
address,
hearing,
including
which
the
scheduling
Plaintiff
order
for
Albizu-Merced
the
preliminary
attended,
and
the
November 4, 2010 Resolution on the merits, to which Plaintiff
Albizu-Merced objected by filing a motion for reconsideration.
See Snider Int'l Corp., 739 F.3d at 147 (stating that “repeated
success of first-class mail delivery suggests the reasonableness
of this method . . . .”). Furthermore, PREPA did not get any of
the
notifications
returned
by
the
U.S.
Postal
Service
as
undeliverable. See id. (“[Defendant] lacked any indication, e.g.
envelopes returned as undeliverable, that first-class mail could
not reasonably provide actual notice.”) (citations omitted).
Finally,
there
is
no
question
that
Plaintiffs
had
an
opportunity to be heard. Not only did Plaintiffs attend the
preliminary
hearing,
reconsideration
of
but
the
they
also
Administrative
filed
a
Judge’s
motion
for
Resolution.
Moreover, the availability of an appeal in state court also
indicates
that
Plaintiffs
had
numerous
opportunities
to
be
Civil No. 11-1969 (JAG)
12
heard, as required by the Due Process Clause. Therefore, their
due process claim relies exclusively on PREPA’s alleged failure
to provide adequate notice.
In fact, Plaintiffs do not allege that the administrative
process
delineated
Procedure
Act
is
in
Puerto
inadequate.
Rico’s
Instead,
Uniform
Administrative
Plaintiffs
argue
that
PREPA’s failure to send the notifications via certified mail and
to enter default against them prior to the case’s disposition
violated some of the provisions in the Puerto Rico’s Uniform
Administrative Procedure Act. (Docket No. 126). While the Court
is skeptical of Plaintiffs’ interpretation of the Act, the Court
need not determine whether PREPA complied with the requirements
contained
in
such
“[c]onduct
violating
statutory
provisions.
state
without
law
will not give rise to a § 1983 claim.”
This
violating
is
because
federal
law
Snider Int'l Corp., 739
F.3d at 145. It follows that any possible violation of the Act
by PREPA does not give rise to a cognizable claim under federal
law.
In conclusion, “due process only requires notice of the
pendency of the action and an opportunity to respond.” Miner v.
Clinton
Cnty.,
(citations
N.Y.,
omitted).
541
F.3d
Plaintiffs
464,
had
474
(2d
both.
Cir.
2008)
Contrary
to
Plaintiffs’ assertions throughout this case, due process “does
not require . . . [sending] ‘additional notices as each step in
Civil No. 11-1969 (JAG)
the
.
.
.
omitted).
parties’
13
proceedings
Therefore,
arguments,
[is]
after
completed’.”
careful
which
for
Id.
(citations
reconsideration
the
most
part
of
were
the
highly
deficient in terms of citations and legal support, the Court
concludes that Defendant is entitled to judgment as a matter of
law.
As to Plaintiffs’ state law claims, the Court declines to
exercise its supplemental jurisdiction under 28 U.S.C. § 1367.
See Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st
Cir. 1995) (“As a general principle, the unfavorable disposition
of a plaintiff's federal claims . . . will trigger the dismissal
without
prejudice
of
any
supplemental
state-law
claims.”)
(citations omitted). In other words, since Defendant is entitled
to judgment as a matter of law as to Plaintiffs’ sole federal
claim, the Court will not entertain Plaintiffs’ state law claims
in the absence of an independent basis for federal jurisdiction.
See Acevedo-Lopez v. Police Dept. of the Commonwealth of Puerto
Rico, 81 F. Supp. 2d 293, 297 (D.P.R. 2000).
CONCLUSION
For
the
Plaintiffs’
reasons
Motion
in
stated
above,
Limine,
the
(Docket
Court
No.
hereby
134),
but
DENIES
awards
Plaintiffs the costs for bringing said motion and for responding
to
Defendant’s
Motion
for
Reconsideration.
As
to
Defendants’
Motion for Reconsideration, (Docket No. 141), the Court hereby
Civil No. 11-1969 (JAG)
GRANTS
it.
PREJUDICE
Plaintiffs’
and
their
14
due
state
process
law
claim
claims
are
is
dismissed
dismissed
WITH
WITHOUT
PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 13th day of November, 2014.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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