Puerto Rico Medical Emergency Group, Inc. v. Iglesia Episcopal Puertorriquena, Inc. et al

Filing 131

MEMORANDUM AND ORDER re 123 Motion Requesting Order, and re 127 Response in Opposition to Motion. The Court DENIES defendants' motion for an extension of the discovery period (Docket No. 123), and GRANTS PRMEG's request for sanctions (Docket No. 127). Notice of compliance due November 1, 2016. Signed by Judge Francisco A. Besosa on 10/18/2016. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PUERTO RICO MEDICAL EMERGENCY
GROUP, INC.,
Plaintiff,
v.

Civil No. 14-1616 (FAB)

IGLESIA EPISCOPAL
PUERTORRIQUEÑA, INC., et al.,
Defendants.

MEMORANDUM AND ORDER1
BESOSA, District Judge.
Before the Court is a request for the modification of the
scheduling order filed by Hospital Episcopal San Lucas, Inc.,
Iglesia Puertorriqueña, Inc., Servicios Generales Episcopales,
Inc.,

and

Servicios

“defendants”).
Emergency

de

Salud

Episcopales,

(Docket No. 123.)

Group,

Inc.

imposition of sanctions.

(“PRMEG”)

Inc.

(collectively

Plaintiff Puerto Rico Medical
opposes

and

moves

for

the

(Docket No. 127.)

Also before the Court is a related informative motion filed by
defendants, (Docket No. 124), PRMEG’s response, (Docket No. 105),
and defendants’ second informative motion, (Docket No. 129.)
For the reasons that follow, the Court DENIES defendants’
motion for an extension of the discovery period, (Docket No. 123),
and GRANTS PRMEG’s request for sanctions, (Docket No. 127.)

1

Natalia Vilá-Palacios, a second-year student at the University of
Puerto Rico School of Law, assisted in the preparation of this
Memorandum and Order.

Civil No. 14-1616 (FAB)

2
I.

BACKGROUND

On December 1, 2014, the Court entered a Case Management Order
which required the parties to complete discovery by November 9,
2015.

(Docket No. 18.)

Following this order, the discovery

deadline was extended on two occasions.
extension

on

November

6,

2015.

PRMEG first requested an

(Docket

No.

86.)

Despite

opposition from defendants, Docket No. 89, the Court granted a 120
day extension and a delay of the discovery period until March 8,
2016.

(Docket No. 90.)

On February 9, 2016, PRMEG filed a motion to compel discovery
due

to

defendants’

requests

and

to

failure

produce

to

comply

with

representatives

organizations for examination.

written

of

(Docket No. 92.)

the

discovery

defendants’

Consequently, on

March 6, 2016 PRMEG filed its second motion to request an extension
of the discovery period due to defendants’ noncompliance with
discovery requests.

(Docket No. 104.)

consented to the requested extension.

This time, defendants

Id.

On July 26, 2016, the

Court ordered defendants to produce PRMEG’s discovery requests by
August 12, 2016, or face sanctions pursuant to Federal Rule of
Civil

Procedure

37(b)(2)(A)(i)-(vii);

discovery period until August 26, 2016.

it

also

extended

the

(Docket No. 121.)

On July 30, 2016, PRMEG requested that defendants provide a
list of the designated persons, and their areas of knowledge, who
would represent the defendants’ organizations in the court-ordered
depositions.

(Docket No. 127-1, Exhibit 1.)

When defendants did

Civil No. 14-1616 (FAB)

3

not respond to this communication, PRMEG asked for a Federal Rule
of Procedure 26(f)(1) conference between the parties.

Id.

at

Exhibit 2. During this conference, which took place via telephone,
the parties agreed to schedule the deposition for August 24, 2016.
Id. at Exhibit 3.
On August 12, 2016 - the deadline set by the Court for
defendants’ compliance with PRMEG’s discovery requests - defendants
requested

an extension

of

five

days

to

upload

the requested

discovery documents. (Docket No. 123-1.) Defendants also asked to
amend the Initial Conference Memorandum by extending the discovery
period 120 days “in order to complete pending depositions and the
opportunity of new depositions pursuant to the information obtained
through

the

documents

being

provided.”

Id.

PRMEG

made

no

objection to the five day extension, but asked defendants for a
list of those newly identified persons and the matters on which
those individuals were knowledgeable in order to evaluate their
request for extension.

Id.

On August 18, 2016, PRMEG once again requested that the
defendants

provide

the

names

and

areas

of

expertise

of

the

witnesses that it planned to depose at the deposition scheduled for
August 24, 2016. (Docket No. 123-4.) Defendants replied that they
would provide the organizations’ designees as soon as they knew
their

names

deposition.

and
Id.

asked

PRMEG

to

hire

an

interpreter

for

the

On that same day, PRMEG notified defendants that

an interpreter had been retained and asked, for a third time, that

Civil No. 14-1616 (FAB)
defendants

provide

the

4
names

designees for the deposition.

and

areas

of

knowledge

of

the

Id.

One day before the agreed upon deposition, defendants notified
PRMEG

that

they

were

not

able

to

designate

appropriate

representatives for their organizations and, thus, requested a
continuance to comply with the court-ordered deposition.
No. 123-5.)

(Docket

PRMEG rejected defendants’ request and confirmed the

agreed upon deposition date.

Id.

Early on August 24, 2016,

defendants informed PRMEG that no witness would appear at the
scheduled

deposition.

(Docket

No.

127-1,

Exhibit

10.)

Consequently, PRMEG was forced to pay a cancellation fee to the
interpreter and an appearance fee to the reporter. (Docket No. 127
at p. 4.)
On August 25, 2016 defendants moved for an extension of the
discovery period.

(Docket No. 123.)

the imposition of sanctions.
II.

PRMEG opposed and requested

(Docket No. 127.)
DISCUSSION

Defendants argue that there is good cause for an extension of
the discovery period because, despite their due diligence, it would
have been impossible to complete discovery by August 24, 2016.
(Docket No. 123 at p. 9.)

Defendants also claim that they are

entitled to an extension because, when producing the written
documentation

requested

by

PRMEG,

they

became

aware

of

new

individuals with potential areas of knowledge that they were
interested in deposing.

Id. at p. 10.

Civil No. 14-1616 (FAB)
PRMEG

counters

5

that

defendants

are

not

entitled

to

the

extension because they have acted obstinately by failing to comply
with the Court’s Order at Docket No. 121 to produce the required
witnesses for pending depositions.2
Furthermore,
defendants

PRMEG

for

its

moves

the

Court

non-compliance

(Docket No. 127 at pp. 5-7.)

(Docket No. 127 at pp. 4-5.)
to

with

impose
the

sanctions

discovery

on

order.

Specifically, PRMEG asks for the

elimination of defendants answers to the complaint and the issuance
of a notice of default.
A.

Id.

Modification of the Discovery Schedule
1.

Standard
Federal Rule of Civil Procedure 16(b)(4) (“Rule 16(b)”)

states that “[a] schedule may be modified only for good cause and
with the judge’s consent.”

Fed. R. Civ. P. 16(b)(4).

This

stringent “good cause” standard requires “showing that the deadline
cannot be reasonably met despite the diligence of the party seeking
the extension.” O’Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d
152, 154 (1st Cir. 2004) (internal citations omitted).

Other

factors, such as prejudice to the opposing party, may be considered
by the Court, but the “dominant criteria” is the diligence of the
party seeking the extension.

Comité Fiestas de la Calle San

Sebastian, Inc. v. Cruz, 314 F.R.D. 23, 25 (D.P.R. 2016) (Besosa,
J.) (citing O’Connell). When evaluating if there is good cause for
2

The Court’s ruling at Docket No. 121 also ordered defendants to
produce a series of written documents. PRMEG is still evaluating
whether the documents produced by defendants comply with its
discovery requests.

Civil No. 14-1616 (FAB)

6

a modification of the discovery schedule, the court’s inquiry
should

end

if

the

discovery process.

moving

party

was

not

diligent

during

the

See Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 609 (9th Cir. 1992).
2.

Analysis
On July 26, 2016, the Court ordered defendants to produce

representatives for their organizations’ depositions.

(Docket

No. 121 at pp. 19-20.) Accordingly, the parties agreed to schedule
these

depositions

Exhibit 3.)

for

August

24,

2016

(Docket

No.

127-1,

Defendants, thus, had one month to identify the

appropriate individuals to represent their organizations.

During

this month, defendants gave no warning about their inability to
identify these representatives.

In fact, six days before the

agreed upon date, defendants asked PRMEG to hire an interpreter for
the depositions, (Docket No. 123-4), which PRMEG diligently did.
Nevertheless,

it

was

not

until

the

day

before

the scheduled

deposition that defendants notified PRMEG that they were unable to
produce appropriate representatives for their organizations and
requested a continuance.

(Docket No. 123-5.)

Asking PRMEG to

retain an interpreter only to cancel the court-ordered deposition
one day before the agreed upon date does not reflect the level of
due diligence required by Rule 16(b)’s “good cause” standard.
Defendants also argue that there is “good cause” to
extend the discovery period because, in the process of producing
the written documentation requested by PRMEG pursuant to the order

Civil No. 14-1616 (FAB)

7

at Docket No. 121, they became aware of new individuals with
potential knowledge.

(Docket No. 123 at p. 10.)

Pursuant to

Federal Rule of Civil Procedure 26(a)(1)(A)(i) (“Rule 26(a)”),
however, defendants were obligated to identify individuals who are
“likely

to

have

discoverable

information”

disclosures, prior to the discovery period.
26(a)(1)(A)(i).

during

initial

Fed. R. Civ. P.

The Case Management Order of this case provides

that initial disclosures must be “based on the information then
reasonably

available”

to

the

party,

who

is

not

excused

from

producing these disclosures simply “because it has not fully
completed its investigation of the case.”

(Docket No. 18 at pp. 7-

8.) Because defendants’ own documentation was reasonably available
to

them

prior

to

the

discovery

period,

and

because

the

new

individuals were discovered through review of this documentation,
defendants had an obligation to identify them in its initial
disclosures pursuant to Rule 26(a).
While courts have allowed late disclosures due to the
emergence of new evidence, that is not the case here.

See Diaz

García v. Surillo-Ruiz, 98 F.Supp. 3d 396, 402 (D.P.R. 2015)
(Besosa, J.) (finding that the emergence of new evidence justifies
the untimely disclosure of witnesses with relevant information).
In this case, defendants did not encounter new evidence that would
justify their

untimely

identification

of

potential

witnesses;

rather, they became aware of those new individuals when reviewing
their own documentation.

Defendants’ failure to investigate their

Civil No. 14-1616 (FAB)

8

case diligently and to identify these individuals with potential
knowledge effectively prior to the discovery period does not
satisfy Rule 16(b)’s “good cause” standard.
In a final attempt to show that there are grounds to
extend the discovery period, defendants urge the Court to consider
additional factors other than diligence, such as the fact that they
have not “unduly delayed the instant action” and that PRMEG would
not be “unduly prejudiced by the modification.”

(Docket No. 123.)

Defendants, however, have waived these “avenue[s] of relief” by
failing to act diligently in the discovery process.
F.3d at 155.

O’Connell 357

Because the moving party was not diligent, the

inquiry regarding an extension of the discovery period must end.
Mammoth Recreations, 975 F.2d at 609.
Because
exercised

the

defendants

level

of

due

have

failed

diligence

to

prove

necessary

that
to

they

satisfy

Rule 16(b)’s “good cause” standard, the Court DENIES their motion
for modification of the scheduling order.
B.

Imposition of Sanctions for the Failure to Comply with a
Discovery Court Order
1.

Standard
Federal Rule of Civil Procedure 37(b) (“Rule 37(b)”)

allows courts to sanction a party for disobeying a discovery order.
Fed. R. Civ. P. 37(b).

If a party fails to obey a discovery order,

courts may issue any of the following sanctions:

“(i) directing

that the matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the prevailing

Civil No. 14-1616 (FAB)
party

claims,

(ii)

9

prohibiting

the

disobedient

party

from

supporting or opposing designated claims or defenses, or from
introducing

designated

matters

in

evidence,

(iii)

striking

pleadings in whole or in part, (iv) staying further proceedings
until the order is obeyed, (v) dismissing the action or proceeding
in whole or in part, (vi) rendering a default judgment against the
disobedient party, or (vii) treating as contempt of court the
failure to obey any order.”

Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).

Regardless of whether the Court ultimately imposes one or more of
these sanctions, it must order the disobedient party to pay the
reasonable

expenses

noncompliance

was

caused

by

its

“substantially

noncompliance,

justified.”

Fed.

unless
R.

that

Civ.

P.

37(b)(2)(C).
When

assessing

the

appropriateness

of

a

discovery

sanction, courts must evaluate the totality of the circumstances.
Mulero-Abreu v. Puerto Rico, 675 F.3d 88, 93 (1st Cir. 2012).

This

inquiry is “not a mechanical one” and varies from case to case.
Benítez-García v. González-Vega, 468 F.3d 1, 5 (1st Cir. 2006).
Some of the factors to consider are the:

(1) severity of the

violation, (2) legitimacy of the party’s excuse, (3) repetition of
violations,

(4)

deliberateness

vel

non

of

the

misconduct,

(5) mitigating excuses, (6) prejudice to the other side and to the
operations of the court, and (7) adequacy of lesser sanctions. See
Id.

(citing Robson v. Hallenbeck, 81 F.3d 1, 2-3 (1st Cir. 1996).

Civil No. 14-1616 (FAB)
2.

10

Analysis
On July 26, 2016, the Court ordered the defendants to

identify

appropriate

representatives

(Docket No. 121 at pp. 19-20.)

for

pending

depositions

Nevertheless, one day before the

agreed upon deposition date, defendants notified PRMEG that they
were unable to produce these representatives and that no witness
would arrive at the deposition. (Docket No. 123-5.) Consequently,
PRMEG was forced to pay a cancellation fee to the interpreter and
an appearance fee to the reporter.

(Docket No. 127 at p. 4.)

In

light of these events, the Court concludes that defendants failed
to comply with its discovery order and is, thus, subject to
sanctions pursuant to Rule 37(b).3

The question that remains is

which among Rule 37(b)’s sanctions is appropriate to impose in this
case.4

3

Defendants were warned about the possibility of sanctions on
numerous occasions, including the Case Management Order, Docket
No. 18 at pp. 7-8, and the Court’s last Opinion and Order, Docket
No. 121 at p. 20.

4

PRMEG requests the elimination of the defendants’ answers to the
complaint and the issuance of a default judgment. Default
judgments, however, have been described as a “drastic sanction”
that must be carefully evaluated.
Taveras v. Municipality of
Carolina, 647 F.3d 1, 7 (1st Cir. 2009) (internal citations
omitted). “Because default judgment is ‘contrary to the goals of
resolving cases on the merits and avoiding harsh or unfair
results,’ a district court must ‘balance these competing
considerations before entering default.’” Hawke Capital Partners
LP v. Aeromed Services Corp., 300 F.R.D. 52, 56 (D.P.R.
2014)(Casellas, J.)(citing Companion Health Services, Inc. v.
Kurtz, 675 F.3d 75, 84 (1st Cir. 2012)). Given the facts before it,
a default judgment is not appropriate at this time. Nevertheless,
an order of default may become necessary if the defendants continue
their noncompliance with the Court’s directives.

Civil No. 14-1616 (FAB)

11

In Freira Trading Co.v. Maizoro S.A. de C.V., 187 F.R.D.
47, 49 (D.P.R. 1999) (Pieras, J.), a party unilaterally canceled,
without a reasonable excuse, court-ordered depositions that were
scheduled one and a half months before the agreed upon date.
Holding that additional monetary sanctions were an effective remedy
to punish the disobeying party’s misconduct and to “deter future
violations”, the court ordered the payment of the costs, fees and
expenses related to the canceled deposition in addition to a $500
sanction for the party’s failure to appear at the deposition.

Id.

at 50.
Here, the facts are similar to those present in Freira
Trading Co. Defendants were ordered to produce representatives for
a

deposition,

but

they

failed

to

do

so

without

providing

a

reasonable excuse, thereby causing PRMEG to incur cancellation fees
and a delay in the Court’s proceedings (Docket No. 127 at p. 4.)
Given these appreciable similarities, the Court finds that the
sanctions imposed in Freira Trading Co. are also appropriate for
this case.
amount

of

Therefore, the Court SANCTIONS the defendants in the
$500.00

to

be

paid

to

the

Court,

and

ORDERS

the

defendants to pay the costs, fees and expenses incurred by PRMEG as
a result of the canceled deposition.
III.

CONCLUSION

For the reasons discussed above, the Court DENIES defendants’
motion for an extension of the discovery period, (Docket No. 123),
and GRANTS PRMEG’s request for sanctions, (Docket No. 127.)

Civil No. 14-1616 (FAB)

12

The Court ORDERS the defendants to:
1.

Comply with Docket No. 121 by November 1, 2016, and

produce the organizations’ representatives for pending depositions,
or be subject to harsher sanctions pursuant to Federal Rule of
Civil Procedure 37(b)(2)(A)(i)-(vii).
2.

Pay the costs, fees and expenses of PRMEG resulting from

the canceled deposition.

PRMEG SHALL submit a memorandum of these

costs no later than November 1, 2016.
The Court SANCTIONS the defendants in the amount of
$500.00 to be paid to the Court not later than November 1, 2016.
In addition, the parties SHALL meet and provide for the Court’s
consideration a proposed schedule leading up and including a trial
date.
IT IS SO ORDERED.
San Juan, Puerto Rico, October 18, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE