Comite Fiestas de la Calle San Sebastian, Inc. v. Cruz et al

Filing 203

MEMORANDUM AND ORDER re 141 Motion for Sanctions; and re 172 Motion for Order to Show Cause. The Court GRANTS plaintiff Comite's motion for sanctions, (Docket No. 141), and motion for an order to show cause, (Docket No. 172). Show Cause Response due by April 25. 2016. Signed by Judge Francisco A. Besosa on 04/11/2016. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
COMITE FIESTAS DE LA CALLE SAN
SEBASTIAN, INC.,
Plaintiff,
CIVIL NO. 14-1929 (FAB)

v.
CARMEN YULIN CRUZ, et al.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Comite Fiestas de la Calle San Sebastian, Inc. (“Comite”)
brought this action against Mayor Carmen Yulin Cruz (“Mayor Cruz”)
and the Municipality of San Juan (“Municipality”) alleging that
they

violated

statements,

Comite’s

and

used

First

Comite’s

Amendment

rights,

trademarks

made

during

libelous

planning

and

celebration of the Fiestas de la Calle San Sebastian (“Fiestas”).
(Docket No. 53.) Upon plaintiff Comite’s motions to compel and for
reconsideration,

(Docket

Nos.

80,

115),

the

Court

defendants to produce documents, (Docket No. 117).

ordered

Before the

Court are plaintiff Comite’s motion for sanctions and motion for an
order to show cause alleging that defendants did not comply with
the Court’s production order.

(Docket Nos. 141, 172.)

For the

following reasons, the Court GRANTS plaintiff Comite’s motions.

Civil No. 14-1929 (FAB)

2
BACKGROUND

Plaintiff

Comite

sent

a

discovery

request

to

defendants

requesting, among other things, the following:
3.

Produce the documentation of Buena Vibra Group’s
compliance with its obligation to send the profits
of four kiosks as well as the 50/50 split of the
profits from the drinks to the Luis Muñoz Marin
Park pursuant to Contract Number 2013-00515.

4.

Produce evidence of the creation of a special
account to benefit the Luis Muñoz Marin Park as
stated in Contract Number 2013-00515.

5.

Produce the detailed invoice required by Contract
Number 2013-00515 in clause Four.1

6.

Produce all contracts with kiosks in 2013 for the
Fiestas de la Calle San Sebastian.

7.

Produce copies of the Certificate of Good Standing,
Corporate Resolution, Insurance Policy benefitting
the Municipality of San Juan, Copy of promoter’s
license, Workers’ Compensation Policy, Negative
Certificate of Municipal Tax owed, and Merchant’s
Certificate of Registry for Contract 2014-001507.

8.

Produce evidence of all money paid to Buena Vibra
Group, Inc. by the Municipality of San Juan as a
consequence of Contract 2014-001507. . . .

10.

Produce copies of all the contracts, invoices, and
documentation as to sponsors as required by
Contract 2014-001507 under the “Specific Aspects”
section.

(Docket No. 115-1 at pp. 6-7.)

1

Contract Number 2013-00515 clause four states, “[t]o be able to
make the payment, it will be necessary that [Buena Vibra] present
a bill where it states in detail the services rendered and the
corresponding registry of hours worked, which will be certified by
the Executive Director or its authorized representative.” (Docket
No. 170-11 at pp. 7-8.)

Civil No. 14-1929 (FAB)

3

In their June 1, 2015 response to plaintiff Comite’s discovery
request, defendants objected to requests for production 2-8 and 10,
arguing that they “exceed[] [the] permissible scope of discovery
[by] seek[ing] information not related to the eight claims for
relief included by the Plaintiff on [sic] its Amended Complaint”
because plaintiff’s amended complaint focuses on the 2015 Fiestas,
while the requests seek information regarding the 2013 and 2014
Fiestas.

(Docket No. 89-2 at pp. 4-7.)

Plaintiff Comite moved to compel defendants to produce the
documents requested in items 2-8 and 10.
4.) Defendants opposed.

(Docket No. 80 at pp. 3-

(Docket No. 89.)

Following the close of

discovery on October 16, 2016, (Docket No. 96), the Court found
plaintiff Comite’s motion to compel moot.

(Docket No. 104.)

Plaintiff moved for reconsideration of the Court’s order, (Docket
No. 115), which the Court granted, (Docket No. 117), despite
defendants’ opposition, (Docket No. 116).

The Court ordered

defendants to produce the documents requested by Comite no later
than November 18, 2015.

(Docket No. 117.)

On November 18, 2015, defendants produced fifty-five pages of
certificates and other documents.

(Docket Nos. 133, 193-1.)

Viewing defendants’ production as insufficient, plaintiff Comite
moved the Court to accept the underlying facts as proven or
sanction defendants until they fully comply with the Court’s

Civil No. 14-1929 (FAB)
order.2

4

(Docket No. 141 at p. 4.)

Defendants responded by arguing

that they should not be sanctioned because they had only “four
working days” between the Court’s order and the production deadline
and they intended to continue to locate and produce relevant
documents.

(Docket No. 163 at p. 2.)

Plaintiff Comite moved for an order requiring defendants to
show cause why they should not be held in contempt for failing to
produce all documents required by the Court’s order.
No. 172.)3

(Docket

On December 30, 2015, defendants produced an additional

document to supplement their November 18 production.
Nos. 194 at p. 1; 194-1.)

(Docket

The parties disputed whether the

produced documents satisfy the Court’s order.

(Docket Nos. 185,

188, 191.)
The Court, seeking clarification, ordered the parties to
provide copies of the documents that defendants had produced.
(Docket No. 192.)

The Court’s order stated that for each request

a $100 fine will be assessed – to defendant if they have not fully
complied with the request, and to plaintiff if defendants have
complied.

Id.

Plaintiff Comite submitted the fifty-five pages of

documents from defendants’ November 18 production, (Docket No. 193-

2

Plaintiff Comite does not move for sanctions based on defendants’
failure to produce documents in response to request 2. See Docket
No. 141.

3

Plaintiff also omitted request 2 from this motion. See Docket
No. 172.

Civil No. 14-1929 (FAB)

5

1), and defendants submitted the additional document from their
December 30 production, (Docket No. 194-1).

Thereafter, the

parties continued to dispute whether the documents satisfied the
(Docket Nos. 195, 198, 201.)4

Court’s production order.

DISCUSSION
Federal Rule of Civil Procedure 26(b)(1) states that “[u]nless
otherwise limited by court order, . . . [p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the
case.”

Fed. R. Civ. P. 26(b)(1).

Evidence is relevant if it makes

a fact of consequence to the action “more or less probable than it
would be without the evidence.”

Fed. R. Evid. 401.

“Information

within th[e] scope of discovery need not be admissible in evidence
to be discoverable.”

Fed. R. Civ. P. 26(b)(1).

“A party seeking discovery may move for an order compelling
. . . production . . .
. . .”

if:

a party fails to produce documents .

Fed. R. Civ. P. 37(a)(3)(B)(iv).

“If a party . . . fails

to obey an order to provide or permit discovery, . . . the court .
.

.

may

issue

further

just

orders,”

including

accepting

as

established the facts the document would have addressed, striking

4

Each party also argues that the opposing party did not comply
with Federal Rule of Civil Procedure 34(b)(2)(E)(i), which requires
parties to “produce documents as they are kept in the usual course
of business or . . . organize and label them to correspond to the
categories in the request.” See Fed. R. Civ. P. 34(b)(2)(E)(i);
Docket Nos. 195 at pp. 1, 4; 198 at pp. 1-2. Neither party fully
organized its submission to the Court by request number.

Civil No. 14-1929 (FAB)

6

pleadings, and finding the nonproducing party in contempt. Fed. R.
Civ. P. 37(b)(2)(A)(i),(iii),(vii).
Here,
plaintiff

the

Court

Comite

produce them.

found

were

that

the

discoverable

(Docket No. 117.)

documents

requested

by

ordered

defendants

to

and

After reviewing the parties’

submissions, the Court must determine if the documents produced by
defendants satisfy plaintiff Comite’s production requests 3-8 and
10.5

The

plaintiff’s

Court

reviews

requests

discovery request.
I.

defendants’

according

to

the

production
numbers

in

to

each

of

plaintiff’s

See Docket No. 115-1 at pp. 6-7.

Requests 3, 4, 5, and 6
Upon review of the documents provided by plaintiff Comite and

defendants,

(Docket

Nos.

193-1,

194-1),

documents in response to these requests.

the

Court

finds

no

Accordingly, the Court

fines defendants $400, $100 per each request.
II.

Request 7:

Documents Related to Contract Number 2014-001507

The Municipality and Buena Vibra executed Contract Number
2014-001507,

5

which

addresses

the

activities

that

Buena

Vibra

Plaintiff Comite’s motion to compel sought the production of
documents in response to requests 2-8 and 10. (Docket No. 80.) The
Court’s production order granting the motion extended only to these
requests. See Docket No. 117. Comite’s motion for sanctions and
motion for an order to show cause challenge the sufficiency of
defendants’ production in response to requests 3-8, 10, and 17-18.
See Docket Nos. 141 at pp. 2-3; 172 at pp. 1-3; 115-1 (numbering
requests). Because plaintiff Comite failed to include request 2 in
its motions for sanctions and for an order to show cause, and
because requests 17-18 are beyond the scope of the Court’s original
production order, only requests 3-8 and 10 are before the Court.

Civil No. 14-1929 (FAB)

7

provided in connection with the 2014 Fiestas. (Docket No. 194-1 at
p. 5 n.5.)

The 2014 Fiestas were held January 16-19, 2014.

(Docket No. 194-1 at p. 2 n.1.)
Request 7 requires defendants to produce several documents.
See Docket No. 115-1 at p. 7. The Court reviews each individually.
A.

Certificate of Good Standing: Although the certificates

of good standing that defendants produced, (Docket No. 193-1 at pp.
12 (covering June 24 - September 22, 2013), 17 (covering January 22
- April 22, 2013), and 40 (covering January 13 - April 13, 2015)),
do not cover the time period of the 2014 Fiestas, defendants
referred plaintiff Comite to the Puerto Rico Department of State’s
website where the certificate of good standing covering the time
period of the 2014 Fiestas is located.6

(Docket No. 185 at p. 2.)

By producing this information, defendants have met their burden of
production in response to this portion of the request.

Further

production by defendant would be duplicative in violation of
Federal Rule of Civil Procedure 26(b)(2)(C)(i).
B.

Corporate

Resolution:

By

producing

the

Corporate

Resolution of Buena Vibra, (Docket No. 193-1 at p. 18 (dated
January 7, 2013, and containing no expiration date)), defendants

6

In addition to the March 3, 2014 certificate of good standing
that defendants reference, the website contains certificates of
good standing covering October 23, 2013 - January 21, 2014 and
March 25 - June 23, 2014.
See Estado Libre de Puerto Rico,
Registro
de
Corporaciones
y
Entidades,
https://prcorpfiling.f1hst.com/CorpInfo/CorpInfoCerts.aspx

Civil No. 14-1929 (FAB)

8

have met their burden of production in response to this portion of
the request.
C.
Defendants

Insurance
have

Policy

failed to

portion of the request.

Benefitting

the

Municipality:

produce documents in response to this

Defendants produced several certificates

regarding their insurance policy, (Docket No. 193-1 at pp. 21, 47
(covering November 26, 2014 - June 30, 2015), 23-37 (covering
February 2, 2014 - February 2, 2015 and naming the Municipality as
an “additional insured”), but none of the certificates cover the
date range in which the 2014 Fiestas were held.
D.

Promoter’s License: Defendants have failed to produce

documents in response to this portion of the request.

Defendants

produced a Promoter’s License of Buena Vibra, (Docket No. 193-1 at
p. 16 (valid October 1, 2012 - September 20, 2013)), however, this
certificate, which expired in September 2013, does not cover the
date range in which the 2014 Fiestas were held.
E.
to

Workers’ Compensation Policy:

Defendants

have

failed

produce documents in response to this portion of the request.

Defendants have produced a negative certificate of debt, (Docket
No. 193-1 at pp. 8-9 (covering August 23 - December 31, 2013)), and
a certificate authorizing Buena Vibra to obtain insurance on
November 26, 2014, (Docket No. 193-1 at p. 21).
not

establish

that

Buena

Vibra

had

a

These documents do

workers’

compensation

Civil No. 14-1929 (FAB)

9

insurance policy during the date range in which the 2014 Fiestas
were held.
F.

Negative Certificate of Municipal Tax Owed: By producing

the negative certificate of municipal debt, (Docket No. 193-1 at
p. 6 (dated August 21, 2013)), defendants have met their burden of
production in response to this portion of the request.
have

also

produced

a

negative

certificate

of

Defendants

municipal

debt

reporting no debt for years 2008-2015, (Docket No. 193-1 at p. 49
(dated January 14, 2015)), which plaintiff Comite admits complies
with this portion of the request, (Docket No. 188 at pp. 3-4).
G.

Merchant’s

2014-001507:

Certificate

of

Registry

for

Contract

By producing the Merchant Registration Certificate

(Docket No. 193-1 at p. 38 (dated January 30, 2012, and containing
no

expiration

date)),

defendants

have

met

their

burden

of

production in response to this portion of the request.
Because defendants have complied with only some portions of
request 7, they have not fully complied.

Accordingly, the Court

fines defendants $100.
III. Request 8: Evidence of All Money Paid to Buena Vibra As a
Result of Contract Number 2014-001507
In response to this request, defendants produced the Financial
Report for the 2014 Fiestas, which contains a detailed review of
payments made by defendants to Buena Vibra as a consequence of
Contract Number 2014-001507 as of the date of the report.
No. 194-1 at pp. 5-6 (dated August 22, 2014).)

(Docket

The financial

Civil No. 14-1929 (FAB)
report

indicates,

10

however,

that

as

of

August

22,

2014,

the

Municipality was withholding payment for some of Buena Vibra’s
reported charges until Buena Vibra produced evidence to support
them.

Id. at p. 5.

Defendants have not produced any document

regarding these outstanding payments. Because the report indicates
that it is not a complete record of all payments made to Buena
Vibra by the Municipality as a consequence of Contract 2014-001507,
and

because

defendants

have

produced

regarding these payments, defendants

no

additional

have failed

documents in response to this request.

to

documents

produce all

Accordingly, the Court

fines defendants $100.
IV.

Request 10: Sponsor Contracts, Invoices, and Documentation
Required by the “Specific Aspects” Section
of Contract
2014-001507
In response to this request, defendants produced the Financial

Report for the 2014 Fiestas, which contains some information
regarding the identity and payments made to sponsors.
194-1 at pp. 2-4, 6-7.)

The Financial Report does not, however,

include invoices or contracts.
to

produce

documents

(Docket No.

to

See id.

comply

Defendants

fully

with

have

this

failed
request.

Accordingly, the Court fines defendants $100.
CONCLUSION
Because defendants have not fully complied with plaintiff
Comite’s document requests 3-8 and 10, the Court GRANTS plaintiff
Comite’s motion for sanctions, (Docket No. 141), and motion for an

Civil No. 14-1929 (FAB)

11

order to show cause, (Docket No. 172). The Court ORDERS defendants
to pay $700 to the Clerk of the Court, no later than April 25,
2016, as follows: the Municipality will pay $350 and Mayor Cruz
will pay $350 from her own funds.

The Court further ORDERS

defendants to SHOW CAUSE by April 25, 2016, why the Court should
not accept as fact the following, which plaintiff Comite asserts
would be established by the unproduced documents:
“The Municipality of San Juan, entered into contracts with
Buena Vibra Group, Inc. for the 2013 and 2014 Fiestas de Calle San
Sebastian without first obtaining all required documents and proof
of compliance with previous contracts, but refused to enter into a
contract with Comite Fiestas de la Calle San Sebastian until they
produced those documents.”
IT IS SO ORDERED.
San Juan, Puerto Rico, April 11, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE