Ramos-Gonzalez v. Malave-Malave et al
OPINION AND ORDER granting 30 Motion to Dismiss; noting 32 Motion to Withdraw as Attorney. Signed by US Magistrate Judge Marcos E. Lopez on 11/7/17. (Lopez, Marcos)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSUÉ DANIEL RAMOS-GONZÁLEZ,
CIVIL NO.: 15-3104 (MEL)
UNIVERSAL INSURANCE COMPANY,
OPINION AND ORDER
Pending before the court is defendant Universal Insurance Company’s (“Universal”)
motion to dismiss plaintiff Josué Daniel Ramos-González’s (“Ramos-González”) action in this
case with prejudice. ECF No. 30. 1 For the following reasons, Universal’s motion is granted.
On February 7, 2017, at the Initial Scheduling Conference, the court set various case
management deadlines in this case, including that plaintiff had to make himself available to be
evaluated by Dr. Héctor Cortés, defendant’s expert witness, by April 30, 2017 and that all
depositions had to conclude by July 31, 2017. ECF No. 27. On June 26, 2017, however, Manuel
Cobián-Roig, plaintiff’s counsel, filed a motion requesting withdrawal as plaintiff’s counsel of
record in this case. ECF No. 28. In essence, Mr. Cobián-Roig indicates that despite multiple
attempts, he has been unable to have communication with his client both by phone and mail, that
“plaintiff tends to appear sporadically”, and that plaintiff’s “attitude towards this court procedure
lacks interest, but most importantly it its [sic] detrimental to a competent and effective legal
representation, as is to the court’s deadlines and procedures.” Id. at 1-2.
Universal is not disputing negligence; it is, however, contesting whether said negligence caused plaintiff any
damages, and if so, the extent of those damages. ECF No. 30 at 2, n.1.
The following day, the court denied without prejudice Mr. Cobián-Roig’s motion to
withdraw. ECF No. 29. The order contained, in its pertinent part, the following warning:
Plaintiff is hereby put on notice that if a new attorney does not appear on his behalf
by July 13, 2017, he may end up proceeding in this case pro se. Even if plaintiff
becomes a pro se party, he will be held accountable for all the deadlines and
proceedings in this case, and any pro se motions will have to be either in English
or with a certified translation attached. The court will not stay or continue the
deadlines simply because there is a change of attorney. Nothing in this order shall
be construed as extending or altering the current deadlines or settings in this case.
Counsel Manuel Cobián-Roig shall notify this order to the plaintiff. If counsel
Cobián-Roig chooses to resubmit his motion requesting leave to withdraw as
counsel of record, said motion shall specify plaintiff's postal address and the
attempts made by counsel to communicate with his client.
On July 12, 2017, Universal filed the motion to dismiss currently pending before the court,
arguing that as of the said date, plaintiff had failed to inform Universal of the dates that plaintiff
would be coming to Puerto Rico in order to “arrange for the pending discovery”. Id. at 2. More
specifically, Universal claims that as of July 12, 2017, it “has been denied the opportunity to
depose and submit Plaintiff to the indepenent medical examination with its expert….” Id. Almost
a month elapsed without any response to Universal’s motion to dismiss. Under these
circumstances, on August 9, 2017 the court issued the following order:
Pending before the court is Universal Insurance Company's unopposed motion to
dismiss. ECF No. 30. On or before August 18, 2017, plaintiff shall show cause as
to why the complaint should not be dismissed with prejudice for lack of diligent
prosecution and why sanctions not be imposed, monetary or otherwise, such as
exclusion of plaintiff’s expert witness. Furthermore, on or before August 18, 2017,
plaintiff shall make himself available to be deposed by defense counsel and to be
examined by defendant's expert witness. No extensions will be granted to these
deadlines, regardless of whether the plaintiff wishes to remain with his current legal
representation, change his current legal representation, or opt to litigate this matter
pro se. As of today, however, counsel Cobián-[Roig] remains as plaintiff's counsel
ECF No. 31.
On August 14, 2017, Mr. Cobián-Roig filed a second motion to withdraw as plaintiff’s
lawyer in this case. ECF No. 32. In this second motion, Mr. Cobián-Roig reiterates the concerns
raised in the first motion, but with greater detail and clarifying some additional efforts that he has
undertaken. In his renewed motion to withdraw, Mr. Cobián-Roig states that “[p]laintiff’s
inattention has come to the point of making the prosecution of his case most uncertain if not
impossible. Due to the lack of successful communication with our client, the undersigned counsel
stems that an opposition to the Motion to Dismiss [Dkt. No. 30] at the moment is not possible due
to the absence of pertinent information necessary to oppose.” Id. at 1. Mr. Cobián-Roig adds:
“Plaintiff’s failure to effectively communicate with his counsel reflects his lack of interest in the
prosecution of his case.” Id. at 2. In support of his request for withdrawal, Mr. Cobián-Roig
informs that he has – on a weekly basis – during the months of June, July and August of 2017
attempted unsucessfully to reach his client by means of phone calls and text messages and that he
has sent correspondence to plaintiff’s two addresses in Pennsylvania. Id. Mr. Cobián-Roig
summarizes the situation as follows: “We have made every effort trying to contact Mr. RamosGonzález, but we have been unsuccessful in every attempt. Thus, Plaintiff’s ineffective inattention
reflects his poor desire to continue with the proceedings of his case.” Id. at 3. Twelve weeks of
inactivity have elapsed since Mr. Cobián-Roig filed his second motion to withdraw.
“The authority of a court to dismiss sua sponte for lack of prosecution has generally been
considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily
vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). See also Zavala Santiago v.
González Rivera, 553 F.2d 710, 712 (1st Cir. 1977) (“A district court unquestionably has the
authority to dismiss a case with prejudice for want of prosecution; this power is necessary to
prevent undue delays in the disposition of pending cases, docket congestion and the possibility of
harassment of a defendant.”); Jardines Ltd. Partnership v. Executive Homesearch Realty Serv.,
Inc., 178 F.R.D. 365, 367 (D.P.R. 1998).
Despite two motions to withdraw filed by plaintiff’s counsel, two orders issuing warnings
to the plaintiff, and Universal’s pending motion to dismiss that to this day remains unopposed,
plaintiff has “maintained a stoic silence at … [his] peril.” Cintrón-Lorenzo v. Departamento de
Asuntos del Consumidor, 312 F.3d 522, 527 (1st Cir. 2002). Therefore, Universal’s motion to
dismiss (ECF No. 30) is hereby GRANTED. All claims in the complaint against Universal are
DISMISSED WITH PREJUDICE.
Mr. Cobián-Roig’s second motion to withdraw (ECF No. 32) is NOTED. Mr. Cobián-Roig
is granted thirty days to file certified translations to the exhibits that he has submitted in both
motions to withdraw. See ECF Nos. 28, 32. Once those certified translations have been submitted,
the court will rule on the merits of Mr. Cobián-Roig’s withdrawal request.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 7th day of November, 2017.
s/Marcos E. López
U.S. Magistrate Judge
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