Aponte-Bermudez v. Berrios et al

Filing 73

OPINION AND ORDER re 62 MOTION for Reconsideration of Order entered at Dkt. 60 and for Dismissal of Action; 66 MOTION for Reconsideration; 70 MOTION to Strike Amended Complaint and Issuance of Summons. Signed by US Magistrate Judge Camille L. Velez-Rive on 9/8/16.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
YEITZA MARIE APONTE BERMUDEZ,
Plaintiff,
v.

CIVIL NO. 15-1034 (CVR)

HECTOR H. BERRIOS, ET AL.,
Defendants.

OPINION AND ORDER
On January 16, 2015, Plaintiff filed the present case against several Defendants,
including several insurance companies, referred to in the Complaint as “Insurance
Companies A through H” as their proper names were not known to Plaintiff at that time.
The Complaint alleged that these insurance companies covered Defendants’ liability for
the damages suffered.
On July 29, 2016, Plaintiff filed a motion seeking several remedies. (Docket No.
57). Among them was a request to file an Amended Complaint to identify and substitute
the previously unnamed insurance companies with their proper names. On August 2,
2016, the Court granted said request. (Docket No. 60).
Before the Court now are three motions by co-Defendants Colón, Berríos and
Medina/Cristalería Vega, seeking reconsideration of the Court’s allowance of the
substitution, requesting dismissal of the causes of actions against the insurance
companies and the striking of the Amended Complaint. (Docket Nos. 62, 66 and 70).
Defendants allege that Plaintiff’s claims against the insurance companies are time barred,
insofar as Plaintiff knew the real names of the insurance companies very early in the case

Yeitza Marie Aponte Bermúdez v. Héctor H. Berríos, et al.
Opinion and Order
Civil No. 15-1034 (CVR)
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and failed to substitute and serve them with process, not only within the 120 day time
frame required by the rules, but also within the one year statute of limitations. Therefore,
Defendants posit that relation back under Fed. R. Civ. P. 15 is not allowed.
In turn, Plaintiff contends that, pursuant to both the federal and Puerto Rico Rules
of Civil Procedure, the effect of a failure to timely serve summons is dismissal without
prejudice, and therefore, Defendants’ argument is a non-starter.
LEGAL ANALYSIS
At the outset, it is important to note that, as Plaintiff correctly points, the
arguments raised regarding the time bar issue were not raised by the insurance companies
themselves, but rather by the parties. This brings forth the issue of whether the parties
have standing to assert a defense that is proper for the insurance company, not the
insured. This issue has not been properly briefed by the parties. As such, the Court will
not venture in to this issue at this time, but will nevertheless examine the other arguments
before it, and hereby DENIES Defendants’ motions.
When a plaintiff seeks to add a claim against a new defendant in an amended
complaint filed after the limitations period has run, the claim is considered “time-barred
as a matter of law unless the amended complaint ‘relates back’ to the original complaint.”
Coons v. Industrial Knife Co., 620 F.3d 38, 42 (1st Cir. 2010). Whether an amendment
relates back, in turn, is governed by Fed. R. Civ. P. 15 (c). Under Rule 15 (c)(1)(A), an
amendment will relate back when “the law that provides the applicable statute of
limitations allows relation back.” Thus, in effect, Rule 15 (c)(1)(A) “cements in place a
one-way ratchet; less restrictive state relation-back rules will displace federal relation-

Yeitza Marie Aponte Bermúdez v. Héctor H. Berríos, et al.
Opinion and Order
Civil No. 15-1034 (CVR)
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back rules, but more restrictive state relation-back rules will not.” Morel v.
DaimlerChrysler AG, 565 F.3d 20, 26 (1st Cir. 2009).
The Court of Appeals for the First Circuit has held that the question of whether an
amendment substituting a party relates back to the original complaint in a diversity case
has a direct substantive effect and that, since the application of the federal rule of
procedure defeated substantive state rights, state law should be applied. Marshall v.
Mulrenin, 508 F.2d 39, 44 (1st Cir. 1974); Covell v. Safetech, Inc., 90 F.R.D. 427, 433
(D.C.Mass. 1981).
Like the Federal Rules of Civil Procedure, the Puerto Rico Rules of Civil Procedure
provide a mechanism by which a plaintiff may interrupt the statute of limitations by
relating the substitution of an unknown defendant back to the time of the filing of the
original complaint. Rule 15.4 states that, if a defendant’s name is unknown, a plaintiff
may use a fictitious name to identify him/her temporarily. Plaintiff must also specifically
state the claims he/she is bringing against that party and, upon discovering the real name,
may then amend to substitute the fictitious name for the newly identified defendant. See
P.R. R. Civ. P. 15.4. The effect of this procedural mechanism is clearly substantive, since
the newly identified party will be considered a defendant from the moment the original
complaint was filed. By virtue of this, the statute of limitations is deemed interrupted
since the original filing pursuant to Article 1873 of the Puerto Rico Civil Code. Therefore,
the date in which a defendant is first included in an original complaint will be the date to
be considered for purposes of statute of limitations issues. Figueroa Díaz v. Escobales,
101 DPR 173 (1973); Bithorn v. Santana, 68 PRR 281 (1948); Santiago v. Becton Dickinson
& Co., S. A., 539 F. Supp. 1149, 1152-53 (D.P.R. 1982).

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In this sense, the Puerto Rico Supreme Court ruled in the case of Ortíz v. Municipal
Government, 94 D.P.R. 472 (1967) that it followed the criteria adopted by California
courts, and stated: “(w)here a complaint attempts to set forth a cause of action against a
defendant designated by a fictitious name and his true name is thereafter discovered and
substituted by amendment, he is considered a party to the action from the filing of the
original complaint, and that is the date to be considered for determining any contention
on extinctive prescription....” Id., at 478.
Additionally, a determination as to the effective date of defendant’s substitution
for a John Doe party must also bring into play Puerto Rico Civil Procedure Rule 13.3. Rule
13.3 states that an amendment will relate back to the original complaint if it arises out of
the same transaction or occurrence, or act as the original action, and the Defendant has
to have had knowledge of existence of the cause of action within the prescriptive period.
P.R. R. Civ. P. 13.3.
In Ortiz v. Municipal Government, 94 D.P.R. at 472, the Court further elaborated
on this issue, and after examining the allegations of the original complaint, concluded
that “absent a deliberate concealment of an indispensable party or an intentional lack of
diligence on plaintiff’s part, the allegations showed the intention of substituting the
insurance company for the John Doe defendant and thus the statute of limitations was
interrupted on the date the original complaint was filed”. Santiago, 539 F.Supp. at 1154
(quoting Ortiz v. Municipal Government, 94 D.P.R. at 479).
In sum, an amendment identifying a John Doe defendant will relate back if the
claim asserted against him arises out of the same occurrence set forth in the original
pleading, specifically states the claims brought against that party, he was notified within

Yeitza Marie Aponte Bermúdez v. Héctor H. Berríos, et al.
Opinion and Order
Civil No. 15-1034 (CVR)
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the prescriptive period, and the parties show an intent to bring suit against the unknown
party.
In the above captioned case, Plaintiff seeks to amend her complaint solely by
substituting the correct insurance companies for the unknown defendants. No new
claims are presented and no new operative facts are alleged. Moreover, the claim asserted
against the insurance companies clearly arises out of the same occurrence. Therefore, the
same substantive defenses are available to Defendants.
In addition, Plaintiff specifically mentioned in her original Complaint the causes
of action she was bringing against the unknown defendant insurance companies, stating
that “Insurance Companies A through H are presently unknown insurance companies
covering the liability of the defendants names herein for the damages claimed in this
complaint. “ (Docket No. 1; p. 3, ¶ 11). Plaintiff further stated that “Defendants Unknown
Insurance Companies A through H have a contractual obligation to compensate those
who are damaged by the negligent acts or omissions of their respective insureds named
as defendants in this complaint” and that “Plaintiff has a right to reclaim directly against
the defendants’ respective insurers”. (Id. p. 8, ¶¶ 32 and 33). These allegations of the
original Complaint specifically asserted the claims against the insurance companies, and
show enough intent to meet the requirements for relation back.
Furthermore, in the Initial Scheduling Memorandum of April 30, 2015 (Docket No.
43), Colón, Berríos, Medina/Cristalería Vega asseverated that they complied with their
Rule 26 disclosures and had produced to Plaintiff their respective insurance policies.
Cooperativa de Seguros Múltiples covered Colón and Universal Insurance covered the
remaining Defendants. It is evident from these disclosures that both of these insurance

Yeitza Marie Aponte Bermúdez v. Héctor H. Berríos, et al.
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companies were on notice, since close to the beginning of the suit, of the claims brought
against them.
Finally, on April 27, 2015, counsel Francisco Colón-Pagán appeared on behalf of
Colón, his wife and his conjugal partnership, presumably on behalf of Colón’s insurance
company, to wit, Coooperativa de Seguros Múltiples. (Docket No. 40).
In any event, even if the claims against the insurance companies would be
dismissed as now requested by Defendants, the dismissal would be without prejudice.
Thus, Plaintiff would be ultimately entitled to present her claims directly against the
insurance companies, which would produce the same result as allowing the substitution
now.
Therefore, in the interest of justice and judicial economy, the motions for
reconsideration and to strike the Amended Complaint are hereby DENIED. (Docket Nos.
62, 66 and 70). Accordingly, the summons requested at Docket No. 69 shall be promptly
issued and served.
CONCLUSION
In light of the above, Defendants’ two motions for reconsideration of the Court’s
Order permitting substitution of parties and the motion to strike the Amended
Complaint are DENIED. (Docket Nos. 62, 66 and 70).
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 8th day of September, 2016.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ-RIVE
UNITED STATES MAGISTRATE JUDGE