Revestimientos Porcelanite. S.A. DE C.V. v. Azulejos y Ceramica, Inc.

Filing 56

ORDER granting 55 Motion to Dismiss. Motion for Default Judgment due by 8/31/2015. Signed by Judge Juan M. Perez-Gimenez on 8/20/2015. (VCC)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
REVESTIMIENTOS PORCELANITE, S.A. DE
C.V.
Civil No. 13-1639 (PG)
Plaintiff,
v.
AZULEJOS Y CERAMICA, INC.
Defendant.
ORDER
Plaintiff

Revestimientos

Porcelanite,

S.A.

de

C.V.

(“Revestimientos” or “plaintiff”) filed a Fourth Request to Dismiss
Counterclaim and to Strike Defendant’s Answer to Complaint. See Docket
No. 55.

The previous three Requests had been denied by this Court

after the last Scheduling Conference. See Docket No. 54. However,
because defendant failed once again to abide by this Court’s rulings,
the motion is GRANTED.
A brief procedural history will help to illustrate the Court’s
reasoning.

I. Background
Revestimientos filed this action on August 21, 2013. See Docket
No. 1. Azulejos y Ceramica Inc. (“Azulejos” or “defendant”) answered
the Complaint and filed a Counterclaim. See Docket No. 7. The case,
however, was stayed after defendant filed for bankruptcy. See Docket
Nos. 10 and 11. Approximately seven months later, Revestimientos filed
a motion to continue proceedings. See Docket No. 12.
Shortly thereafter, Revestimientos filed an Informative Motion
stating that it no longer had a commercial relationship with Azulejos.
See Docket No. 13. For that reason, Revestimientos announced that it
would

start

to

do

business

again

in

the

local

market.

The

Court

ordered Azulejos to respond to those allegations by July 30, 2014. See
Docket No. 18. After more than a year, no response has been filed.

Civil No. 13-1639(PG)

Page 2

On July 15, 2014, the Court entered a Scheduling Order and set
the case for an Initial Scheduling Conference. See Docket No. 21.
After two continuances on plaintiff’s request, a conference was held
on September 10, 2014. See Docket No. 37. At the hearing, the Court
denied without prejudice a motion to withdraw as legal counsel filed
by Azulejos’ attorney. The Court instructed Azulejos to announce by
September 30, 2014, its new legal representation. Id. Because of the
issue regarding Azulejos’ attorney, the Court could not conduct the
ISC as planned.
On October 17, 2014, Revestimientos filed its first motion to
dismiss

the

counterclaim

Docket No. 38.

due

to

Azulejos’

lack

of

diligence.

See

Plaintiff argued that Azulejos had not yet retained

new counsel and had made no efforts to submit its portion of the Joint
Scheduling Memorandum. Finally, Revestimientos requested that the ISC
be postponed. See Docket No. 39. Azulejos did not file an opposition.
Four

days

later,

the

Court

entered

an

Order

to

Show

Cause

directed to Azulejos. See Docket No. 41. The Court ordered Azulejos to
show cause on or before October 31, 2014 as to why it had failed to
comply

with

its

orders

of

August

27,

2014

(Docket

No.

27)

and

September 10, 2014 (Docket No. 37). The Order warned Azulejos that
should it fail to comply; the Court would strike its Answer to the
Complaint and Counterclaim and enter default.
On the day before the term expired, Azulejos filed a motion to
show cause and for leave to appear. See Docket No. 42. The document
explained

that

Azulejos

needed

to

obtain

authorization

from

the

Bankruptcy Court to retain new counsel in light of attorney Orlando
Perez-Marrero’s motion to withdraw. But it assured the Court that it
had already filed a motion to that effect. In the meantime, Azulejos
asked to Court to grant thirty days for its new counsel, BennazarZequeira, to become acquainted with the case and to prepare the ISC
Memorandum. Id.
Revestimientos duly opposed the motion to show cause. See Docket
No. 43. It averred that the application for appointment of counsel
before the Bankruptcy Court was actually filed on October 16, 2014.

Civil No. 13-1639(PG)

Page 3

That was well after the September 20, 2014 deadline set by the Court.
Id.
By February of 2015, the case was still stalled. Revestimientos
filed

its

Third

Motion

to

Dismiss

the

Counterclaim

and

Motion

to

Strike the Answer to Complaint. See Docket No. 45. Azulejos filed an
Opposition. See Docket No. 46. To justify the delay, Azulejos stated
that “the difficulties of being in bankruptcy and trying to organize
[its] affairs placed a considerable burden...” Id. at ¶6.
At Revestimientos’ instance, the Court held a hearing to discuss
a

timetable

for

future

proceedings.

See

Docket

No.

48.

Azulejos’

counsel informed the Court that a new trustee had been appointed by
the Bankruptcy Court and would need some additional time to work on
the case. See Docket No. 51.
On July 22, 2015, a follow-up Status Conference took place. See
Docket No. 54. The trustee was ordered to submit an application to
employ attorney Bennazar-Zequeira as counsel to represent Azulejos by
no later than July 31, 2015. Id. The Court denied Revestimientos’
three pending Motions to Dismiss.
The July 31, 2015 deadline passed without word from Azulejos. As
a

result,

Revestimientos

filed

its

Fourth

Motion

to

Dismiss

Counterclaim and to Strike Azulejos’ Answer to the Complaint. See
Docket No. 55.
II.

Azulejos’ Inaction

This procedural background highlights the meager zealousness that
Azulejos has shown in prosecuting this case. The complaint was filed
two years ago and, even accounting for the time period in which the
case was stayed, little has happened. This Court has been patient in
allowing Azulejos some leeway due to its bankruptcy filing but can no
longer sit idly while Azulejos disregards its rulings.
The First Circuit has recognized that “courts cannot effectively
administer justice unless they are accorded the right to establish
orderly processes and manage their own affairs.” Young v. Gordon, 330
F.3d 76, 81 (1st Cir. 2003) (citing Chambers v. NASCO, Inc., 501 U.S.
32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)). “Moreover, in the
federal system the Civil Rules reinforce and augment the inherent

Civil No. 13-1639(PG)

Page 4

power of district judges to dismiss cases for disregard of judicial
orders.”
dismissal

Id.

(citing

should

to

only

be

Fed.R.Civ.P.
imposed

37(b),

when

41(b)).
conduct

the

Even
is

though

extreme,

“disobedience of court orders, in and of itself, constitutes extreme
misconduct (and, thus, warrants dismissal).” See Tower Ventures, Inc.
v.

City

of

Westfield,

296

F.3d

43,

46

(1st

Cir.

2002)

(citations

omitted).
The Court is convinced that defendant’s conduct in this case
warrants the dismissal of its counterclaim and the striking of its
answer to the complaint. Azulejos’ constant neglect of this Court’s
orders effectively thwarts our interest in administering the docket.
The Court gave Azulejos several opportunities to move the case forward
and assert its claims, but was met with utter disregard.
Azulejos even admitted to stalling the proceedings on more than
one occasion. See “Defendant-Counterclaimant’s Azulejos’ Opposition to
Plaintiff’s Request to Dismiss Counterclaim,” Docket No. 46 at ¶5
(“The undersigned assumes our portion of the responsibility for the
delay and recognize that we should have been more proactive”); Id. at
¶6 (“We also note that upon the filing of our Motion to Show Cause,
plaintiffs filed a motion entitled “Opposition to Motion to Show Cause
and Appearance of new counsel…”, which the undersigned inadvertently
did not respond to)(emphasis added); see also “Motion to Show Cause,”
Docket No. 42 at ¶3 (“Aside from having to endure the trials and
tribulations of being in bankruptcy and facing the enormous challenges
to

reorganize

authorization

its
from

business,
the

Azulejos

Bankruptcy

Court

also
to

needed

retain

new

to

obtain

counsel

to

continue to represent its interests in this case.”
Suitably, plaintiff saw fit to file four motions to dismiss. The
Court initially dismissed the first three and gave Azulejos one more
chance to get the case back on track. Once again, defendant flouted
the court’s direction. Having amassed such a series of consecutive
failures to comply, dismissal of Azulejos’ Counterclaim is warranted.

Civil No. 13-1639(PG)

Page 5

III. Conclusion
For the reasons set forth herein, Plaintiff’s Fourth Request to
Dismiss Counterclaim and to Strike Defendant’s Answer to Complaint is
GRANTED.

As

to

Plaintiff’s

request

that

the

Court

enter

Default

Judgment against Azulejos, the Court Orders Revestimientos to file a
separate Motion for Default that complies with the Federal Rules of
Civil Procedure within the next ten (10) days.

IT SO ORDERED.
In San Juan, Puerto Rico, August 20, 2015.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE