Gonzalez-Berrios et al v. Kmart of Puerto Rico, Inc et al
OPINION AND ORDER granting 17 MOTION to dismiss. Judgment is to be issued accordingly. Signed by Judge Daniel R. Dominguez on 11/8/2017. (EA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WANDA I. GONZÁLEZ BERRÍOS,
CIVIL NO. 16-2130 (DRD)
KMART OF PUERTO RICO, INC., et. al.,
OPINION AND ORDER
Pending before the Court is a motion to dismiss the complaint due to failure to toll
the statute of limitations against co-defendants, Kmart Corporation and Kmart
Operations. See ECF No. 17. Specifically, the controversy at hand requires a determination
as to whether Plaintiffs’ action is time barred because in the State Court case Plaintiffs
sued Kmart of Puerto Rico, Inc., a corporation that does not exist, and no service of
process was made to co-defendants prior to the dismissal of the State Complaint (the
“complaint”). For the reasons stated herein, the Court GRANTS the motion to dismiss
and DISMISSES with prejudice the instant complaint.
FACTUAL AND PROCEDURAL OVERVIEW
This action arises out of a slip-and-fall accident suffered by Plaintiff, Wanda
González Berríos on July 13, 2014 at a Kmart store located in Montehiedra Town Center,
in San Juan, Puerto Rico, in which she suffered damages. On February 13, 2015, Plaintiffs
filed a complaint at the Puerto Rico Court of First Instance, Superior Court of Caguas,
caption Wanda I. González Berríos, Lorenzo Ramos Montañez y la Sociedad Legal de Gananciales
Compuesta por Ambos v. Kmart of Puerto Rico, Inc.; Dueño A; Aseguradora I; Dueño B; and
Aseguradora II, civil case number K DP2015-0166 (808). Neither Kmart Corporation nor
Kmart Operations, LLC were named defendants in the complaint. Furthermore, no
amendments were made to the complaint when filed in State Court.
Then, on June 26, 2015, Plaintiffs moved for voluntary dismissal without prejudice
from the State Court. Such motion was granted and Judgment of Dismissal entered on
July 23, 2015, which was notified on July 14, 2015. No defendants were served during
these proceedings prior to its dismissal.
On June 20, 2016, Plaintiffs filed the instant claim before the Court, in which the
named defendants are Kmart of Puerto Rico, Inc., Kmart Corporation, Kmart Operations,
LLC, Owner A, Owner B, and ABC Insurance Company. See ECF No. 1.
Pending before the Court is Kmart Corporation and Kmart Operations, LLC’s
(hereinafter, “Kmart Corporation”) motion to dismiss for failing “to toll the statute of
limitations against Kmart Corporation and Kmart Operations, LLC”. See ECF No. 17 §
11; Plaintiffs opposed to this motion (ECF No. 21), Kmart Corporation filed a reply (ECF
No. 22) and Plaintiffs filed a sur-reply (ECF No. 25).
In detail, Kmart Corporation proffers in a sworn statement not challenged by
Plaintiffs that “Kmart of Puerto Rico is a separate entity, one that as of today has been
dissolved, one that was never involved at any relevant time as an owner or operator of
the Kmart store at Montehiedra Town Center where the facts of this case took place.” See
ECF No. 17 § 1 ¶ 2.
However, prior to addressing the merits of said motion, the Court must review the
applicable legal foundation.
A. Statute of Limitations under Article 1802 Claims
For diversity tort actions such as the instant case, the statute of limitations is
substantive law and Puerto Rico law controls. See Erie v. Tompkins, 304 U.S. 64, 78, 58
S.Ct. 817, 822 (1938); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464 (1945); Daigle v.
Maine Medical Center, 14 F.3d 684, 689 (1st Cir. 1994). Puerto Rico’s Civil Code provides
that personal injury actions carry a one year statute of limitations from the moment the
aggrieved person has knowledge of the injury. 31 P.R. LAWS § 5298; Rodriguez v. Suzuki
Motor Corp., 570 F.3d 402, 406 (1st Cir.2009) (“the statute of limitations starts to run once
the injured party knows both that he has suffered a harm and who is responsible for it.”).
However, such one-year term is subject to tolling. The Supreme Court of Puerto
Rico has stated that “[t]he tolling act represents the unequivocal manifestation of intent
to put an end to the inactivity that takes place before the period of deliberation runs out.”
Galib Frangie v. El Vocero de P.R., 1995 WL 905884 (P.R.), 12 P.R. Offic. Trans. 971. Article
1873 of the Civil Code provides three ways by which the statute of limitations may be
tolled. Tokyo Marine and Fire Ins. Co. v. Perez & CIA de Puerto Rico, Inc., 142 F.3d 1, 4 (1st
Cir. 1998). This may be accomplished (1) “by the institution of an action before the courts
[;]” (2) “by extrajudicial claim of the creditor[;] and” (3) “by any act of acknowledgment
of the debt by the debtor.” Id. (quoting Civil Code of Puerto Rico, 31 P.R. LAWS
§ 5303)(internal quotation omitted).
Under Puerto Rican law, the filing of a complaint and not the service of summons
tolls the statute of limitations. Duran Cepeda v. Morales Lebron, 1982 WL 210627 (P.R.), 12
P.R. Offic. Trans. 776. Further,“[i]n order for a previously filed judicial action to toll the
statute of limitations as to a later filed complaint, the second complaint must assert a
cause of action identical to the one in the first.” García Rodríguez v. Laboy, 598 F. Supp. 2d
186, 2008 U.S. Dist. LEXIS 107371 (D.P.R. 2008). Once the complaint is filed, the limitations
period is tolled until the judicial proceedings have definitively concluded (in Spanish,
“final y firme”). See Lopez-Gonzalez v. Municipality of Comerio, 404 F.3d 548, 552 (1st Cir.
2005); Silva–Wiscovich v. Weber Dental Mfg. Co., 835 F.2d 409, 410 (1st Cir.1987); see also
Martínez Arcelay v. Peñagaricano, 1998 WL 199586 (P.R.); Agosto v. Municipio de Rio
Grande, 1997 WL 289933 (P.R.); Durán–Cepeda v. Morales–Lebrón, 1982 WL 210627 (P.R.),
12 P.R. Offic. Trans. 776; Moa v. Commonwealth, 100 P.R.R. 572, 589 (1972). On the date the
judicial proceedings definitively conclude, a new one-year term commences. Agosto Ortiz
v. Municipio de Rio Grande, 1997 WL 289933 (P.R.).
The Puerto Rico Supreme Court has stated that “the secondary effects of the
traditional solidarity—among which, the tolling of the statute of limitations—do not
apply.” Fraguada Bonilla v. Auxilio Mutuo, 186 P.R. Dec. 365 (2012)1. It thus held that in
actions for damages [involving imperfect solidarity (“in solidum”)], the injured party
“must toll the statute of limitations as to each one of them [in imperfect solidarity]”, id.,
and “timely filing of a complaint against one solidary co-tortfeasor of an extracontractual
Certified Translation at ECF No. 29-2.
damage does not have the effect of tolling the statute of limitations as to rest of the alleged
tortfeasors [in imperfect solidarity].” Id. at 377. (Emphasis ours).
Additionally, the filing of a complaint against nonexistent or fictitious parties,
when an indispensable party whose identity and name are known exists, does not
interrupt the statute of limitations and its subsequent amendment to include said party
after the expiration of the period to file the action does not relate back to the time of the
filing of the original petition, as set forth in Fuentes v. Tribunal de Distrito de P.R., 73 P.R.R.
893, 916 1952 PR Sup. LEXIS 260 (P.R. 1952) as follows:
“If the original complaint is legally sufficient and a defendant is joined
under a fictitious name inasmuch as, his identity but not his specific name
is known, the complaint may be subsequently amended to insert the real
name of the persons when it is known. But said rule must not be applied
when the amendment as to that defendant is made after the expiration of
the limitation period in a case in which the original complaint is legally
insufficient because it was filed against the nonexistent defendants without
including an indispensable party as defendant, or where it is merely a case
of ignorance as to the name of the party to the suit, although knowing his
identity, or where as in the instant case, plaintiff originally knew the name
and identity of a person who should have been included as defendant
because she was an indispensable party.”
See also Laboy, 598 F.Supp.2d at 195 (holding that because defendant-canine officers in a
first lawsuit, which was timely filed, were not identical to defendants in a second lawsuit,
which was untimely, as the officers were never identified in the first suit pursuant to Rule
15.4 of Title 32, the filing of the prior complaint did not toll the statute of limitations as to
any defendants in the second lawsuit, pursuant to this section.)
B. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Under Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff must “provide
the grounds of his entitlement [with] more than labels and conclusions.” See Ocasio–
Hernandez v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir.2011) (“in order to ‘show’ an
entitlement to relief a complaint must contain enough factual material ‘to raise a right to
relief above the speculative level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).’ ”) (quoting Twombly, 550 U.S. at 555) (citation
omitted). Thus, a plaintiff must, and is now required to, present allegations that “nudge
[his] claims across the line from conceivable to plausible” in order to comply with the
requirements of Rule 8(a). Id. at 570; See e.g. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Rule 12(b)(6) provides the mechanism in order to raise defenses to a claim for
relief. “A party may assert the following defenses by motion: . . . (6) failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). However, when a court
considers matters outside the pleadings in a Rule 12(b)(6) motion, Rule 12(d) requires that
“the motion must be treated as one for summary judgment under Rule 56.” Tackett v. M
& G Polymers, USA, LLC, 561 F.3d 478, 487 (6th Cir. 2009). “The element that triggers the
conversion is a challenge to the sufficiency of the pleader's claim supported by extrapleading material.” 5 Fed. Prac. & Proc. Civ. § 1366 (3d ed.).
Considering the fact that the parties submitted to the Court extra-material outside
the scope of pleadings in order to sustain their allegations, and that the Court is
considering those documents in order to make its ruling, Defendants’ Motion to Dismiss
must be ruled upon as a Motion for Summary Judgment.
C. Federal Rule of Civil Procedure 56
A motion for summary judgment is governed by Rule 56 of the Federal Rules of
Civil Procedure, which entitles a party to judgment if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “A dispute is ‘genuine’ if the evidence about the fact is such
that a reasonable jury could resolve the point in favor of the non-moving party.” See
Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013); Prescott v. Higgins, 538 F.3d 32, 40
(1st Cir. 2008) (citing Thompson v. Coca–Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986); Calero–Cerezo v. U.S. Dep't of
Justice, 355 F.3d 6, 19 (1st Cir. 2004). The analysis with respect to whether or not a
“genuine” issue exists is directly related to the burden of proof that a non-movant would
have in a trial.
“[T]he determination of whether a given factual dispute requires
submission to a jury must be guided by the substantive evidentiary standards that apply
to the case.” Liberty Lobby, Inc., 477 U.S. at 255 (applying the summary judgment standard
while taking into account a higher burden of proof for cases of defamation against a
public figure). In order for a disputed fact to be considered “material” it must have the
potential “to affect the outcome of the suit under governing law.” Sands v. Ridefilm Corp.,
212 F.3d 657, 660–661 (1st Cir. 2000) (citing Liberty Lobby, Inc., 477 U.S. at 247–248);
Prescott, 538 F.3d at 40 (1st Cir. 2008) (citing Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st
The objective of the summary judgment is to “pierce the pleadings and to assess
the proof in order to see whether there is a genuine need for trial.” DeNovellis v. Shalala,
124 F.3d 298, 306 (1st Cir. 1997) (citing the advisory committee note to the 1963
Amendment to Fed. R. Civ. P. 56(e)). The moving party must demonstrate the absence
of a genuine issue as to any outcome-determinative fact on the record. Shalala, 124 F.3d
at 306. Upon a showing by the moving party of an absence of a genuine issue of material
fact, the burden shifts to the nonmoving party to demonstrate that a trier of fact could
reasonably find in his favor. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The non-movant may not defeat a “properly focused motion for summary judgment by
relying upon mere allegations,” but rather through definite and competent evidence.
Maldonado–Denis v. Castillo Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The non-movant’s
burden thus encompasses a showing of “at least one fact issue which is both ‘genuine’
and ‘material.’” Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990); see also Suarez v.
Pueblo Int'l., 229 F.3d 49, 53 (1st Cir. 2000) (stating that a non-movant may shut down a
summary judgment motion only upon a showing that a trial-worthy issue exists). As a
result, the mere existence of “some alleged factual dispute between the parties will not
affect an otherwise properly supported motion for summary judgment.” Liberty Lobby,
Inc., 477 U.S. at 247–248.
Similarly, summary judgment is appropriate where the
nonmoving party rests solely upon “conclusory allegations, improbable inferences and
unsupported speculation.” Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 95 (1st
Cir. 1996); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
When considering a motion for summary judgment, the Court must “draw all
reasonable inferences in favor of the non-moving party while ignoring conclusory
allegations, improbable inferences, and unsupported speculation.” Smith v. Jenkins, 732
F.3d 51, 76 (1st Cir. 2013) (reiterating Shafmaster v. United States, 707 F.3d 130, 135 (1st Cir.
2013)). The Court must review the record as a whole and refrain from engaging in the
assessment of credibility or the gauging the weight of the evidence presented. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); see also Pina v. Children's Place, 740 F.3d 785, 802 (1st Cir. 2014).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Reeves, 530 U.S. at 150
(quoting Anderson, 477 U.S. at 250–51).
Summarizing, “[t]he court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” (Emphasis provided). See Fed. R. Civ. P. 56(a).
Hence, in order to prevail, Defendants must demonstrate that, even admitting
well-pleaded allegations in light most favorable to Plaintiff, the applicable law compels a
judgment in its favor.
Defendants aver that Kmart Corporation was the owner and operator of Kmart’s
Montehiedra Town Center store, on the date of the incident, July 13, 2014, and currently
still is the owner and operator of such store.2 Further, Defendants aver that Kmart of
Puerto Rico, Inc., does not exist nor did it exist on the date of the incident. 3 Kmart
Corporation also claims that the attorneys that filed the State Court complaint have
previously filed other cases against Kmart Corporation for incidents in Kmart store
premises.4 Plaintiffs did not mention such allegation in their opposition nor on their surreply to Kmart Corporation’s motions.
Meanwhile, Plaintiffs aver that filing the State Court claim against Kmart of Puerto
Rico, Inc. was a simple misnomer, and the Court should consider their intention of tolling
the statute of limitations against Kmart. They further explained that, it is the filing of the
complaint and not the service of process, the action that tolls the statute of limitations.
Also, Plaintiffs allege that Defendants knew of the claim from the day of the accident
since Plaintiffs filed an accident report that same day. The Court disagrees with such
reasoning of Plaintiff. An accident report is not a claim and it is not one of the three (3)
ways by which the statute of limitations may be tolled. The Court agrees that under
Puerto Rico law, the filing of the complaint and not the service of summons tolls the
As part of the evidence submitted by Kmart Corporation to sustain its allegations, Defendants produced
a Declaration Under Penalty of Perjury by Frank Calabrese, Assistant Corporate Secretary of Kmart
Corporation and Kmart Operations, LLC in which he declared that “Kmart Corporation currently is, and
since before July 13, 2014, has been the owner and operator of the Kmart store located at Montehiedra Town
Center. It is also the employer of all Kmart associates working at said store.” ECF No. 17-1 ¶ 3.
According to the Corporation Registry of the Department of State of the Commonwealth of Puerto Rico,
Kmart of Puerto Rico, Inc., file 126,260 was a stock corporation organized under the laws of Puerto Rico,
which was dissolved on March 14, 2002. (Twelve years prior to the date of the accident, that is, July 13,
The Court takes judicial notice of a previous case filed in the District Court by counsel for Plaintiffs against
Kmart Corporation back in 2009. See Sandra Quiñonez-López, et. al. v. Kmart Corporation, et. al., Civil No. 092054 (CCC).
statute of limitations. See Duran Cepeda, 112 D.P.R. at 625. However, even if the Court
were to agree with Plaintiffs’ argument, the accident report was prepared the same day
of the accident. Hence, the statute of limitations was not changed or tolled in its
application, and Plaintiffs were due to toll the statute of limitations against Kmart
Corporation and Kmart Operations, LLC on or before July 13, 2015.
The Court must accept as true all the well plead allegations in the Complaint.
Hence, an analysis of the statute of limitations’ allegations contained in Plaintiff’s
Complaint is necessary in order to ascertain whether the present action is time barred by
the first action in state court.
III. Tolling of the Statute of Limitations
6) On February 13, 2015, plaintiffs filed the cause styled, Wanda I. González
Berríos, Lorenzo Ramos Montañez y la Sociedad Legal de Gananciales
Compuesta por Ambos v. Kmart of Puerto Rico, Inc.; Dueño A;
Aseguradora I; Dueño B y Aseguradora II, Civil No. KDP 2015-0166, Court
of First Instance, Superior Court of San Juan.
7) At plaintiffs’ request, on June 26, 2015, Civil No. KDP 2015-0111 was
dismissed without prejudice. Judgment was entered on July 13, 2015, and
noticed on July 14, 2015. The state court filing tolled the statute of
limitations against defendants on all claims filed herein pursuant to Article
1802 of the Puerto Rico Civil Code, 31 P.R. Stat. Ann. Section 5141.
ECF No. 1, p. 3 ¶¶ 6-7. The Court finds that even when accepting well-pleaded facts in
the light most favorable to Plaintiff, pleadings 6 and 7 confirm the fact that the state
complaint was filed against Kmart of Puerto Rico, Inc. and not against Kmart Corporation
and Kmart Operations, LLC.
Further, the Court must assess the adequacy of Plaintiffs’ State Court complaint,
in light of the tolling requirements set forth by the Puerto Rico Supreme Court, namely:
“(a) opportunity or timeliness, which requires that the action be filed before
the limitation period runs out; (b) standing, is what gives a party the right
to file an action; (c) identity, means that the action must exactly correspond
to the right affected by the statute of limitations; and (d) fitness of the means
employed.” Galib Frangie, 138 D.P.R. at 567.
Plaintiffs’ complaint was timely filed on June 26, 2015, well within the one-year
limitations period to bring suit, on July 13, 2014. Furthermore, Plaintiff slipped and fell
while on Defendants’ premises and, therefore, has standing to bring suit seeking redress
for her injuries. With regards to the third prong, identity, the instant suit is not being
litigated by the same parties. In the state court claim, the named defendant was Kmart of
Puerto Rico, Inc., while on the instant case, Kmart Corporation and Kmart Operations,
LLC, were named defendants for the first time. Finally, Plaintiff’s suit in state court
certainly meets the fourth requirement of “fitness of the means employed.” However, the
Court finds Plaintiff’s state court complaint failed to effectively toll the statute of
limitations considering that the jurisprudence that governs clearly establishes that
Plaintiff must toll the statute of limitations against all defendants separately and neither
Kmart Corporation nor Kmart Operations, LLC were named defendants in the State
The Court is forced by law to determine that Defendants’ actions in the state claim
had the fatal effect of not tolling the statute of limitations as to Kmart Corporation and
Kmart Operations, LLC. See Wanda I. González Berríos, Lorenzo Ramos Montañez y la
Sociedad Legal de Gananciales Compuesta por Ambos v. Kmart of Puerto Rico, Inc.; Dueño A;
Aseguradora I; Dueño B; and Aseguradora II, civil case number K DP2015-0166 (808). The
Court simply cannot oversee the fact that Plaintiffs’ State Court complaint was an
ineffective attempt to toll the statute of limitations which cannot be remedied.
Consequently, the instant complaint is time barred.
For the reasons elucidated above, the Court hereby GRANTS Defendants Kmart
Corporation and Kmart Operations, LLC’s Motion to Dismiss (ECF No. 17). Judgment of
DISMISSAL with prejudice is to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 8th day of November, 2017.
S/DANIEL R. DOMÍNGUEZ
Daniel R. Domínguez
United States District Judge
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