Velazquez v. Schindler Corporation of Puerto Rico

Filing 21

ORDER: Denying without prejudice 15 Motion to Dismiss. Signed by Judge Gustavo A. Gelpi on 9/13/2013. (TC)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF PUERTO RICO

3
4

MARTA M. VELAZQUEZ,

5

Plaintiff,

6

v.

7

SCHINDLER CORPORATION OF

8

PUERTO RICO,

9

Defendant.

Civil No. 13-1278 (GAG)

10
11
OPINION AND ORDER

12
13

Plaintiff Marta Velazquez (“Plaintiff”) bring this action against Schindler Corporation of

14

Puerto Rico (“Schindler” or “Defendant”) for injuries suffered when she fell from an escalator at the

15

Luis Munoz Marin International Airport in San Juan, Puerto Rico on September 20, 2009. (See

16

Docket No. 1.) Plaintiff claims the escalator was improperly maintained by Defendant. (See id.)

17

Plaintiff filed her complaint on April 5, 2013. Defendant moved to dismiss on July 5, 2013 (Docket

18

No. 15), which Plaintiff opposed (Docket No. 18). After reviewing these submissions and the

19

pertinent law, the court DENIES without prejudice Defendant’s motion to dismiss at Docket No.

20

15.

21

I.

Standard of Review

22

“The general rules of pleading require a short and plain statement of the claim showing that

23

the pleader is entitled to relief.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st

24

Cir. 2009) (citations omitted) (internal quotation marks omitted). “This short and plain statement

25

need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it

26

rests.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

27

Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to

28

state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). To survive a Rule

1

Civil No. 13-1278 (GAG)

2

12(b)(6) motion, a complaint must contain sufficient factual matter “to state a claim to relief that is

3

plausible on its face.” Twombly, 550 U.S. at 570. The court must decide whether the complaint

4

alleges enough facts to “raise a right to relief above the speculative level.” Id. at 555. In so doing,

5

the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff’s

6

favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008). However, “the tenet that a court must

7

accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”

8

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). “Threadbare recitals of the elements

9

of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,

10

550 U.S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the

11

mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’ -‘that the pleader

12

is entitled to relief.’” Iqbal, 556 U.S. 662, 129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)).

13

II.

2

Factual and Procedural Background

14

Upon arriving at the airport, Plaintiff proceeded towards the Customs and Border Patrol

15

checkpoint. (See Docket No. 1 ¶ 6.) To proceed from the first to the second floor, Plaintiff took an

16

escalator. (See id. ¶ 7.) Whilst riding on the escalator, it suddenly jerked and reversed direction,

17

causing Plaintiff to be thrown to the ground. (See id. ¶ 10.) This fall caused Plaintiff physical

18

injuries. (See id. ¶ 13.)

19

Plaintiff filed suit against American Airlines in the federal district court of the Virgin Islands

20

on September 7, 2010. (See Docket No. 18-1.) That case resulted in a stipulation of dismissal on

21

September 22, 2012. (See id.) On July 14, 2012, during discovery in that case, Plaintiff learned that

22

Schindler was the company in charge of maintaining the escalator that caused her injuries. After the

23

stipulation in the previous case, Plaintiff brought the present suit against Schindler.

24

III.

Discussion

25

The parties agree Puerto Rico’s one-year statute of limitations for tort actions applies to this

26

case. P.R. LAWS ANN. tit. 31, § 5298. Two aspects of this law are relevant to this analysis. First,

27

the start of the prescriptive period when the plaintiff is not immediately aware of the identity of the

28

alleged tortfeasor, and; second, whether Plaintiff reasonably delayed her investigation to ascertain

1

Civil No. 13-1278 (GAG)

2

the identity of the alleged tortfeasor. Essentially, to survive Defendant’s motion to dismiss, the court

3

must find Plaintiff’s injury did not accrue prior to April 5, 2012.

3

4

A.

Accrual of Plaintiff’s Claim

5

“For accrual purposes, the injured person must have both notice of her injury and knowledge

6

of the likely identity of the tortfeasor.” Espada v. Lugo, 312 F.3d 1, 3 (1st Cir. 2002) (citing Tokyo

7

Marine & Fire Ins. Co. v. Perez & Cia., De Puerto Rico, Inc., 142 F.3d 1, 3 (1st Cir.1998)). Plaintiff

8

had notice of her injury on September 20, 2009, the date she was injured. (See Docket No. 1 ¶ 5.)

9

It is disputed whether Plaintiff knew or should have known Schindler’s identity prior to July

10

14, 2012. (See Docket No. 1 ¶ 8.)

11

statutory term, plaintiff bears the burden of proving timeliness by establishing that she lacked the

12

necessary knowledge or imputed knowledge before instituting the action.” Espada, 312 F.3d at 4

13

(citing Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 19 (1st Cir. 2001)). A plaintiff is

14

required to perform due diligence to ascertain the identity of an alleged tortfeasor. See Espada, 312

15

F.3d at 4. Due diligence requires a plaintiff to be active in performing reasonable efforts to ascertain

16

the identity of the tortfeasor. See Quintana Lopez v. Liggett Group, Inc., 336 F. Supp. 2d 153, 157

17

(D.P.R. 2004). “It is known that under Puerto Rico law, ‘due diligence does not mean waiting for

18

answers to fall from the sky, but rather requires reasonable, active efforts to seek answers and clarify

19

doubts.’” Id. (quoting Alicano Ayala v. Philip Morris, Inc., 263 F. Supp. 2d 311, 317 (D.P.R. 2003)).

20

In applying Puerto Rico law, the First Circuit stated “[I]t is unfair, by and large, to bar a tort

21

action by the mere passage of time if a plaintiff, exercising due diligence, cannot ascertain the

22

tortfeasor’s identity.” Fragoso v. Lopez, 991 F.2d 878, 886 (1st Cir. 1993). Without knowledge as

23

to the identity of the tortfeasor, the plaintiff will be unable to institute the action. See Garcia Colon

24

v. Garcia Rinaldi, 340 F. Supp. 2d 113, 122 (D.P.R. 2004). “The key inquiry under this prong of

25

the knowledge requirement is whether plaintiff knew or with the degree of diligence required by law

26

would have known whom to sue.” Kaiser v. Armstrong World Indus., Inc., 872 F.2d 512, 516 (1st

27

Cir. 1989) (internal citation omitted) (internal quotation marks omitted). Therefore, the court

28

“In cases where a tort claim is filed beyond the one-year

1

Civil No. 13-1278 (GAG)

2

employs a review of Plaintiff’s actions to determine if they were objectively reasonable.

4

3

In circumstances similar to the present case, the district court allowed an amended complaint

4

outside the limitations period to include an additional defendant in Bocanegra-Acevedo v. Toyota

5

Motor Sales USA, Inc., Civil No. 07-1893 (JP), 2009 WL 1098084, at * 2-3 (D.P.R. Apr. 23, 2009).

6

While the original suit was filed within the time period, the amended complaint targeting an

7

additional defendant was not. See id. The plaintiffs originally sued a related corporation, partly

8

based on a misrepresentation from an employee, but later amended the complaint having received

9

knowledge of the actual tortfeasor. See id. Further, even though it was possible for the plaintiffs

10

to ascertain the identity of the actual torfeasor by searching the records of the Puerto Rico state

11

department, the plaintiffs’ claims were not be time-barred for failing to do so. See id. However, in

12

Estate of Castro Martinez v. Philip Morris Inc., the court found a wait of more than four years to

13

bring suit for smoking related health conditions unreasonable because due diligence would have

14

informed the plaintiffs of numerous suits filed by state governments years prior to the plaintiffs’ suit.

15

No. Civil .No. 02–2171(HL), 2004 WL 870677, at *3 (D.P.R. Mar. 30, 2004). Finally, in Fragoso,

16

the court dismissed the plaintiff’s claims because the delay was not credibly explained. 991 F.2d

17

at 887 (allowing summary judgment when plaintiff provided no credible basis for expiration of

18

prescriptive period).

19

The facts here demonstrate that Plaintiff did not sit on her rights. Plaintiff, having

20

knowledge of her injury, sued American Airlines, the party she thought was responsible for

21

maintaining the escalator. (See Docket No. 18-1.) This claim was brought within the one-year

22

limitations period. (See id.) Plaintiff also points out the duration of the previous case and the delays

23

encountered therein as reasons for her delay in acquiring the identity of Schindler. (See id.)

24

Through the discovery process, Plaintiff learned the identity of Schindler on July 14, 2012. (See

25

Docket No. 1 ¶ 8.) Thus, Plaintiff reasonably sought out the responsible party. Through her diligent

26

efforts, she learned the identity of the tortfeasor and brought suit within the one-year limitations

27

period by filing the present suit on April 5, 2013. (See Docket No. 1.)

28

1

Civil No. 13-1278 (GAG)

5

2

Further, Plaintiff also alleges she was lead to believe that American Airlines was the entity

3

in charge of maintaining the escalator. “[D]uring the litigation against American Airlines and based

4

on the information provided in the discovery, plaintiff was led to believe that it was in fact American

5

Airlines the entity that was in charge of said escalator.” (Docket No. 18 at 5-6.) The allegation that

6

Schindler’s identity was withheld or not promptly offered is similar to the case of

7

Bocanegra-Acevedo, where the plaintiff’s suit was timely. 2009 WL 1098084, at * 2-3 (D.P.R. Apr.

8

23, 2009). The court agrees with the holding in Bocanegra-Acevedo, especially as the parties have

9

not undertaken discovery and the allegations of the complaint must be read as true.

10

In arriving at the conclusion that Plaintiff’s suit is timely, the court notes Plaintiff need not

11

take all possible steps to ascertain the identity of Schindler. Plaintiff need only act as a reasonable

12

person in her position to determine the identity of the tortfeasor. Therefore, the court finds Plaintiff

13

met her burden and acted reasonably in attempting to resolve her claim. Defendant’s motion to

14

dismiss for violation of the statute of limitations is DENIED without prejudice. The court allows

15

Defendants the opportunity to renew this motion, if during discovery Defendants obtain additional

16

evidence demonstrating Plaintiff learned of Schindler’s identity prior to July 14, 2012.

17

B.

Judicial Estoppel

18

Alternatively, Defendant seeks dismissal on judicial estoppel grounds. Judicial estoppel is

19

an equity doctrine that bars a party from taking a particular position in a legal position that is

20

contrary to a position previously held in a previous legal proceeding. See Guay v. Burack, 677 F.3d

21

10, 16 (1st Cir. 2012). Basically, when a party succeeds by asserting a particular legal position, that

22

same party cannot subsequently change positions simply because its interests have changed. See id.

23

This doctrine is primarily applied to ensure the integrity of the judicial system. See id. However,

24

a major consideration in applying this doctrine is whether the party attempting to assert a new legal

25

position will derive an unfair advantage from the change. See Knowlton v. Shaw, 704 F.3d 1, 10

26

(1st Cir. 2013). While no rigid test exists, estoppel is appropriate when the party’s position is

27

inconsistent, the initial position was accepted by a court, and the party will derive an unfair

28

advantage from the shift in position. See id. (citing New Hampshire v. Maine, 532 U.S. 742, 750

1

Civil No. 13-1278 (GAG)

2

(2001); Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010); Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374

3

F.3d 23, 30 (1st Cir. 2004)).

6

4

Here, Defendant asserts that Plaintiff has previously litigated her claims against American

5

Airlines and reached a settlement. (See Docket No. 15 at 9.) Defendant does not provide the court

6

with any evidence on which to evaluate this argument. No party provided the court with a copy of

7

the previous complaint or any of the documents submitted to that court. Only the docket sheet has

8

been provided, which is insufficient for the court to rule on this matter. Therefore, the court

9

DENIES without prejudice Defendant’s motion to dismiss under the judicial estoppel doctrine.

10

Once discovery is complete, Defendant may renew this argument with sufficient supporting

11

materials to allow the court to analyze Plaintiff’s position in the initial case and how that contradicts

12

the rights Plaintiff asserts in this case.

13

IV.

Conclusion

14

For the reasons set forth above, the court DENIES without prejudice Defendant’s motion

15

to dismiss for violation of the statute of limitations and DENIES without prejudice Defendant’s

16

motion to dismiss pursuant to the judicial estoppel doctrine.

17
18

SO ORDERED.

19

In San Juan, Puerto Rico this 13th day of September, 2013.

20

s/ Gustavo A. Gelpí

21

GUSTAVO A. GELPI
United States District Judge

22
23
24
25
26
27
28