Diaz Rivera v. Supermercados Econo, Inc. et al

Filing 101

MEMORANDUM AND ORDER re 62 Motion to Dismiss. The Court DENIES Dr. Gonzalez's motion to dismiss. Signed by Judge Francisco A. Besosa on 05/29/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA DE
RIVERA,

LOS

ANGELES

DIAZ-

Plaintiff,
v.
SUPERMERCADOS
al.,

ECONO,

Civil No. 12-1925 (FAB)
INC.,

et

Defendants.

MEMORANDUM & ORDER1
BESOSA, District Judge.
Before the Court is defendant Dr. Benjamin Gonzalez’s motion
to dismiss the claim against him set forth in the second amended
complaint.

(Docket No. 62.)

For the reasons discussed below, the

Court DENIES the motion to dismiss.
I.

BACKGROUND

Plaintiff Maria de los Angeles Diaz-Rivera (“Ms. Diaz”) filed a
complaint on November 9, 2012 (Docket No. 1), an amended complaint
on March 21, 2013 (Docket No. 25), and a second amended complaint
on April 18, 2013 (Docket No. 38).

Ms. Diaz brought a negligence

claim against defendants Hospital Hermanos Melendez, Emergency Room
Corporation, and Dr. Joed M. Laboy in the original complaint.
1

Ian Qua, a third year student at The George Washington
University Law School, assisted in the preparation of this
memorandum.

Civil No. 12-1925 (FAB)

2

(Docket No. 1 at ¶¶ 6-7, 10.)

In the amended complaint, Ms. Diaz

substituted the name WMR Emergency Group, LLC for Emergency Room
Corporation.

(Docket No. 25 at ¶ 11.)

Ms. Diaz named unknown

defendants in both the complaint and the amended complaint:
Defendants John Roe and any other Tortfeasors are the
fictitious names hereby given to the additional parties
whose identities or names are not known to this moment
and whose negligent actions or omissions are proximately
[sic] and direct causes for plaintiffs’ damages. Once
their real identities are discovered, the fictitious
names will be substituted for the real ones.
(Docket Nos. 1 at ¶ 13; 25 at ¶ 14.)

In the second amended

complaint, Ms. Diaz added Dr. Benjamin Gonzalez (“Dr. Gonzalez”) as
a

defendant

treatment
No. 38.)

she

of

alleges

her

is

deceased

liable

husband,

Oscar

of

his

negligent

Figueroa.

(Docket

Dr. Gonzalez moved to dismiss the claim against him on

December 12, 2013.

(Docket No. 62.)

opposed the motion to dismiss.
II.

because

On January 14, 2014, Ms. Diaz

(Docket No. 69.)

LEGAL STANDARD
A.

Choice of Law
Federal courts apply state substantive law in diversity

cases.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

See

also Hanna v. Plumer, 380 U.S. 460, 466 (1965) (quoting Guaranty
Trust Co. v. York, 326 U.S. 99, 109-10 (1945)) (“The question is .
. . does it significantly affect the result of a litigation for a
federal

court

to

disregard

a

law

of

a

State

that

would

be

Civil No. 12-1925 (FAB)

3

controlling in an action upon the same claim by the same parties in
a

State

court?”)

(internal

quotation

marks

omitted).

The

limitation of actions is a question of substantive law in Puerto
Rico, and is addressed in articles 1830 through 1875 of the Civil
Code. P.R. Laws Ann. tit. 31 §§ 5241-5305 (2011); Febo Ortega v.
Tribunal Superior, 2 P.R. Offic. Trans. 506, 508-09 (P.R. 1974).
Because Ms. Diaz is a resident of Florida and all defendants are
residents of Puerto Rico, the Court has diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
result,

the

Court

turns

to

(Docket No. 38 ¶¶ 1-2.)
the

applicable

limitations

As a
and

concomitant tolling provisions in the Civil Code to determine
whether Ms. Diaz’s claim is time-barred. Rodriguez v. Suzuki Motor
Corp., 570 F.3d 402, 406 (1st Cir. 2009); Montalvo v. GonzalezAmparo, 587 F.3d 43, 46 (1st Cir. 2009).
B.

Motion to Dismiss Standard
“The question confronting a court on a motion to dismiss

is whether all the facts alleged, when viewed in the light most
favorable
entitlement

to

the
to

plaintiffs
relief

[sic],

plausible.”

render

the

plaintiff’s

Ocasio-Hernández

v.

Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011) (citations omitted).
A plaintiff cannot “proceed perforce by virtue of allegations that
merely parrot the elements of the cause of action.”
(internal quotation marks and citations omitted).

Id. at 12

A court must

Civil No. 12-1925 (FAB)

4

treat any non-conclusory factual allegations in the complaint as
true, “even if seemingly incredible.”

Id. (citations omitted.)

III. DISCUSSION
A.

Factual Allegations
Ms. Diaz alleges that Dr. Gonzalez, Hospital Hermanos

Melendez, Dr. Joed M. Laboy, WMR Emergency Group, LLC and others
negligently maintained Mr. Figueroa, her husband, “under their
control and care [at Hospital Hermanos Melendez] without having the
adequate facilities and resources needed by him, thus preventing
him from receiving the prompt and proper medical care he needed”
for the severe cranial trauma he had suffered.
¶

55.)

Ms.

Diaz

also

alleges

(1)

that

(Docket No. 38 at

Dr.

Gonzalez

was

a

contractor of Hospital Hermanos Melendez and WMR Emergency Group,
LLC, id. at ¶¶ 43-44; (2) that Dr. Gonzalez was working as a doctor
in the emergency room when the events giving rise to the second
amended complaint occurred, id. at ¶¶ 26, 43-45; and (3) that
Dr.

Gonzalez’s

negligence

in

his

treatment

of

Mr.

Figueroa

contributed in part to the delay that caused Mr. Figueroa’s death
on December 1, 2011, id. at ¶ 47.
In

his

motion

to

dismiss,

prescription as an affirmative defense.
Dr.

Gonzalez

contends

that

because

Dr.

Gonzalez

asserts

(Docket No. 62 at ¶ 1.)

the

one-year

statute

of

limitations for civil cases in Puerto Rico began to run when

Civil No. 12-1925 (FAB)

5

Ms. Diaz’s husband died on December 1, 2011, and

Ms. Diaz named

Dr. Gonzalez as a defendant on April 18, 2013, more than one year
after the limitations period started to run, Ms. Diaz’s claim
against him should be dismissed.
B.

Id. at ¶¶ 2-6.

Statute of Limitations
1.

Dr. Gonzalez’s Affirmative Defense
In a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6), a defendant successfully raises a statute
of limitations affirmative defense when “the facts establishing the
defense [are] clear ‘on the face of the plaintiff’s pleadings.’”
Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 320
(1st Cir. 2008) (quoting Blackstone Realty LLC v. Fed. Deposit Ins.
Corp., 244 F.3d 193, 197 (1st Cir. 2001)).

When a plaintiff files

a claim more than a year after the relevant injury, and the
defendant successfully raises a statute of limitations affirmative
defense, the plaintiff bears the burden of proving timeliness.
Tokyo Marine & Fire Ins. Co. v. Perez & Cia. Inc., 142 F.3d 1, 4
(1st Cir. 1998) (citations omitted); Velazquez v. Schindler Corp.,
968 F. Supp. 2d 475, 477 (D.P.R. 2013) (Gelpi, J.) (internal
citation and quotation marks omitted).

To warrant dismissal, a

review of the plaintiff’s pleadings must “‘leave no doubt’ that the
plaintiff’s
Blackstone

action

is

Realty,

244

barred
F.3d

by
at

the

197

affirmative

(quoting

defense.”

LaChappelle

v.

Civil No. 12-1925 (FAB)

6

Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998)).
“Where

the

dates

included

in

the

complaint

show

that

the

limitations period has been exceeded and the complaint fails to
sketch a factual predicate that would warrant the application of
either a different statute of limitations period or equitable
estoppel, dismissal is appropriate.”

Trans-Spec Truck, 524 F.3d

at 320 (internal citation and quotation marks omitted).
In his motion to dismiss, Dr. Gonzalez argues that
Ms. Diaz’s claim against him is time-barred because (1) the injury
to Mr. Figueroa occurred on November 18, 2011; (2) the original
complaint was filed on November 9, 2012; (3) he was made a party to
the suit in the second amended complaint, which was filed on
April 18, 2013; and (4) the one-year statute of limitations had run
for more than one year before he was brought as a party to the
suit.

(Docket No. 62 at ¶¶ 2-6.)

Because Dr. Gonzalez raised the

affirmative defense and Ms. Diaz brought her claim more than a year
after the injury occurred, Ms. Diaz has the burden of demonstrating

Civil No. 12-1925 (FAB)

7

that a doubt exists that her claim is time-barred.2

Tokyo Marine,

142 F.3d at 4; Velazques, 968 F. Supp. 2d at 477.
2.

Accrual of Plaintiff’s Claim
Ms. Diaz successfully demonstrates that a doubt

exists that her claim should be time-barred, however, by arguing
that her claim did not accrue until she became aware through an
expert witness report that Dr. Gonzalez’s actions or omissions were
a cause of the injury.

(Docket No. 69 at ¶¶ 13, 15.)

The Civil

Code provides that the statute of limitations period within which
to commence a civil action for negligence is one year from the time

2

While Ms. Diaz’s reply cites legal authority that might
suggest an argument that the statute of limitations was tolled by
the defendants’ solidarity, she does not articulate that argument.
(Docket No. 69 at ¶ 14.) The Court therefore is not in a position
to decide the motion to dismiss on solidarity grounds, and
Ms. Diaz, therefore, fails to demonstrate any doubt that her claim
should be time barred through a solidarity argument.
The Court is also not in a position to decide the motion to
dismiss on relation-back grounds. Ms. Diaz fails to argue that,
pursuant to article 1873 of the Civil Code, Laws of P.R. Ann.
tit. 31 § 5303, and Puerto Rico Rules of Civil Procedure 13.3 &
15.4, the original complaint tolled the statute of limitations
against Dr. Gonzalez because her claim against Dr. Gonzalez relates
back to her claim against unknown defendants in the original
complaint. (Docket No. 69 at ¶ 10.) A complaint relates back when
a plaintiff knows the defendant’s identity but not his or her name.
Serrano v. Figueroa-Sancha, 878 F. Supp. 2d 301 (D.P.R. 2012)
(Dominguez, J.); Fuentes v. Tribunal de Distrito, 73 P.R.R. 893,
916 (P.R. 1952). This is not the situation here, where Ms. Diaz
argues she did not know Dr. Gonzalez’s identity, let alone his
name, until the expert witness report was filed. (Docket No. 69 at
¶¶ 13, 15.)

Civil No. 12-1925 (FAB)

8

the aggrieved person acquired knowledge of the act or omission
causing damage to another through fault or negligence.
Ann. tit. 31 §§ 5141 & 5298.

P.R. Laws

The Puerto Rico Supreme Court has

established that an aggrieved person acquires knowledge only when
he or she has notice both of the injury and of who caused the
injury. Colon Prieto v. Geigel, 15. P.R. Offic. Trans. 313, 330-31
(1984) (quoting Antoni M. Borrell i Soler, Derecho Civil Español
500,

(Barcelona

Bosch

Ed.,

1955))

(internal

quotation

marks

omitted); Rodriguez-Suris v. Montesinos, 123 F.3d 10, 13 (1st Cir.
1997).
i.

Notice of the injury
A plaintiff acquires notice of the injury if

there are

“some

outward

or

physical

signs

through

which

the

aggrieved party may become aware and realize that he [or she] has
suffered an injurious aftereffect, which when known becomes a
damage even if at the time its full scope and extent cannot be
weighed.”

Delgado Rodriguez v. Nazario de Ferrer, 21 P.R. Offic.

Trans. 342, 356 (1988) (citing Herminio M. Brau del Toro, Los Daños
y Perjuicios Extracontractuales en Puerto Rico 638-40 (J.T.S., ed.,
2d

ed.

1986)).

Ms.

Diaz

became

aware

Mr. Figueroa’s death on December 1, 2011.

of

the

injury

upon

(Docket No. 1 at ¶ 33.)

Ms. Diaz is unable to establish timeliness based solely on her
becoming aware of the injury because she learned of Mr. Figueroa’s

Civil No. 12-1925 (FAB)
injury

prior

to

one

9
year

before

filing

her

claim

against

Dr. Gonzalez.3
ii.

Notice of who caused the injury
A plaintiff acquires notice of who caused the

injury when he or she is “aware of some level of reasonable
likelihood of legal liability on the part of the person or entity
that caused the injury.”

Reyes Santana v. Hosp. Ryder Mem’l.,

Inc., 130 F. Supp. 2d 270, 275 (D.P.R. 2001) (Fuste, J.) (quoting
Rodriguez-Suris, 12 F.3d at 13-14).

Once aware, a plaintiff must

exercise diligence “through minimal investigation” to ascertain the
tortfeasor’s name and institute a lawsuit.

Rosado Serrano v. E.I.

Dupont de Nemours & Co., 797 F. Supp. 98, 103 (D.P.R. 1992)
(Pieras, J.). The requirement that a plaintiff know who caused the
injury assures that victims are able to seek compensation.

Hodge

v. Parke Davis & Co., 833 F.2d 6, 7 (1st Cir. 1987) (citations
omitted).

A plaintiff cannot be required to file his or her action

before he or she knows it exists because that requirement would
violate due process of law. Vega Lozada v. J. Pérez y Cía., Inc.,
135 D.P.R. 746, 754-55 [35 P.R. Offic. Trans. __, __] (1994)
(citing Alicea v. Cordova, 17 P.R. Offic. Trans. 811 (1986)).

3

To comply with the limitations period, Ms. Diaz must have
acquired notice of the injury no earlier than April 18, 2012.
(Docket No. 38.)

Civil No. 12-1925 (FAB)

10

A plaintiff is aware of who caused the injury
when he or she actually knows, or with the degree of diligence
required by law would have known, whom to sue. Rodriguez-Suris, 12
F.3d at 16 (citing Kaiser v. Armstrong World Indus., 872 F.2d 512,
516 (1st Cir. 1989)) (internal quotation marks omitted).

See also

Estate of Alicano Ayala v. Phillip Morris Inc., 263 F. Supp. 2d
311, 320 (D.P.R. 2003) (Perez-Gimenez, J.) (internal citation
omitted) (“[D]eterminations of due diligence . . . can be made at
the motion to dismiss stage . . . . Dismissal under Rule 12(b)(6)
still would be appropriate if a plaintiffs' pleadings do not lend
any support to a finding of due diligence.”)

Due diligence means

“reasonable, active efforts to seek answers and clarify doubts.”
Ayala, 263 F. Supp. 2d at 320.

A plaintiff can satisfy this

diligence requirement by learning the identity of a plaintiff
through the discovery process.

Ramirez-Ortiz v. Corporación del

Centro Cardiovascular, Civ. No. 12-2024 (FAB), 2014 WL 545512, at
*3 n.2 (D.P.R. Feb. 12, 2014) (citing Ortiz-Sanabria v. Corporación
del Centro Cardiovascular, KLCE201400032, 2014 WL 902928, at *10
(P.R. Cir. Jan. 31, 2014)) (“[I]t is reasonable to conclude that
the prescriptive term for the claim . . . began to run when [the
plaintiff] found out who was responsible for [the] harm during
discovery.”); Velazquez v. Schindler Corp., 968 F. Supp. 2d 475,
477-78 (D.P.R. 2013) (Gelpi, J.) (“Through the discovery process,

Civil No. 12-1925 (FAB)

11

plaintiff learned the identity of Schindler . . . . Thus, plaintiff
reasonably sought out the responsible party.”).
Ms.

Diaz

argues

that

she

first

learned

Dr. Gonzalez was responsible through the expert witness report
issued on March 8, 2013, and that she filed the second amended
complaint on April 18, 2013, only 40 days later and well within the
one-year statute of limitations.

(Docket No. 69 at ¶¶ 13, 15, 18.)

In both Ortiz-Sanabria and Velazquez, the court found that the
plaintiffs acted with the required level of diligence when the
plaintiffs learned during discovery the defendants’ identities and
their culpability, and that the plaintiffs’ claims did not accrue
until they acquired notice of who caused their injury.

Ortiz-

Sanabria 2014 WL 902928 at *10; Velazquez, 968 F. Supp. 2d at 478.
Here, Ms. Diaz may have similarly not known — and may not have
known through due diligence — whom to sue until learning of
Dr. Gonzalez’s involvement through the expert witness report.

See

id. The accrual date of Ms. Diaz’s claim against Dr. Gonzalez,
therefore, may be less than one year before Ms. Diaz brought the
claim against him.

(Docket No. 69 at ¶¶ 13, 15.)

This argument

successfully raises a doubt that Ms. Diaz’s complaint is timebarred.

Civil No. 12-1925 (FAB)
IV.

12

CONCLUSION
For the reasons explained above, the Court finds that Ms. Diaz

sufficiently raises a doubt that her complaint is time-barred by
showing that her claim against Dr. Gonzalez accrued when she
learned of his potential liability through the expert witness
report.4

Accordingly, the Court DENIES Dr. Gonzalez’s motion to

dismiss.
IT IS SO ORDERED.
San Juan, Puerto Rico, May 29, 2014.

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

4

Nothing in Ms. Diaz’s or Dr. Gonzalez’s filings mention any
date when Ms. Diaz first received her husband’s medical chart, or
whether the medical chart mentions Dr. Gonzalez or includes
physicians’ notes written and signed by him. The receipt of the
medical chart may have been on a date more than one year before the
filing of the second amended complaint, which included Dr. Gonzalez
as a defendant. This argument is, however, waived.