Hernandez et al

Filing 23

OPINION AND ORDER re 2 Motion for Preliminary Injunction: DENIED and this action is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rules of Civil Procedure 41(b) for failure to prosecute. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 06/28/2018. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ARTURO HERNÁNDEZ a/k/a DVJ KING
ARTHUR,
Plaintiff,
v.

Civil No. 17-2208 (FAB)

RUBÉN NÚÑEZ a/k/a DJ RED NOISE,
et al.,
Defendants.

OPINION AND ORDER 1
BESOSA, District Judge.
Before the Court is plaintiff Arturo Hernández a/k/a DVJ King
Arthur (“Hernández”)’s motion requesting a preliminary injunction
against defendants Rubén Núñez a/k/a DJ Red Noise (“Núñez”), Jane
Doe, and the conjugal partnership existing between Núñez and Jane
Doe (“conjugal partnership”), filed pursuant to the Lanham Act, 15
U.S.C. § 1114, et seq., Federal Rule of Civil Procedure 65(b), and
the Puerto Rico Trademark Act, P.R. Laws Ann. tit 10, § 171 et
seq., (Docket No. 2.)

For the reasons set forth below, Núñez’s

motion is DENIED. This civil action is DISMISSED WITHOUT PREJUDICE
pursuant to Federal Rule of Civil Procedure 41(b) (“Federal Rule
41(b)”), for failure to prosecute.

1

Jeremy S. Rosner, a third-year student at Emory University School of Law,
assisted in the preparation of this Opinion and Order.

Civil No. 17-2208 (FAB)
I.

2

Background
Hernández commenced this action against Núñez, Jane Doe, and

the conjugal relationship existing between them on September 14,
2017.

(Docket No. 1.) 2

Federal Rule of Civil Procedure 4(m)

(“Federal Rule 4(m)”) required Núñez to serve each defendant by
December 14, 2017, three months after Núñez filed the complaint.
See Docket No. 1. 3

Núñez failed to serve the defendants within

the three-month period set forth in Federal Rule 4(m).
On January 24, 2018, Hernández requested an extension of time
to serve the defendants.

(Docket No. 12.)

The Court granted

Hernández’s request, allowing him until March 6, 2018 to serve
process on the defendants, six months after he filed the complaint.
(Docket No. 13.)
In
processor

January
to

2018,

locate

Hernández

Núñez.

commissioned

(Docket

No.

14,

a

professional

Ex.

1.)

The

2 The Clerk of the Court informed Hernández that the complaint failed to comply
with Local Civil Rule 3(a), requiring that litigants include a civil cover sheet
and category sheet with all complaints. (Docket No. 3.) Failure to correct
this deficiency within twenty-four hours could have resulted in dismissal. Id.
Hernández submitted the cover sheet and category sheet two months after filing
the complaint, on November 16, 2017. (Docket No. 5.)
3

Federal Rule of Civil Procedure 4(m) provides that:
If a defendant is not served within 90 days after the complaint is
filed, the court — on motion or on its own after notice to the
plaintiff — must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m).

Civil No. 17-2208 (FAB)
processor’s

attempts

unsuccessful.

Id.

3
to

locate

Núñez,

however,

proved

Subsequently, Hernández requested leave from

the Court to serve Núñez and the Núñez/Doe conjugal partnership
(but not Jane Doe, Núñez’s spouse) by publication pursuant to
Puerto Rico Rule of Civil Procedure 4.6 (“Puerto Rico Rule 4.6”).
(Docket No. 14 at p. 2; citing P.R. Laws Ann. tit. 32, App. III R.
4.6.) 4
the

The Court granted Hernández’s request to serve Núñez and

conjugal

Accordingly,
published

partnership
summons

“in

a

were

by

publication.

issued

newspaper

of

on

(Docket

February

general

21,

No.

2018

circulation

15.)
to

in

be
the

Commonwealth of Puerto Rico” pursuant to Puerto Rico Rule of Civil
Procedure 4.5 (“Puerto Rico Rule 4.5”).

(Docket No. 16, Ex. 1.)

Summons were issued to Rubén Núñez and the Conjugal Partnership
Composed Between [sic] Núñez and Jane Doe, (but not Jane Doe).
The summons provided that “[w]ithin ten (10) days following the
publication of the summons, a copy of the complaint shall be mailed

4 Federal Rule of Civil Procedure 4(e) sets forth the manner in which plaintiffs
may serve process. Fed. R. Civ. P. 4(e)(2)(a). Hernández may “deliver[] a
copy of the summons and the complaint to [Núñez] personally.” Alternatively,
Hernández may “[f]ollow state law for serving a summons in an action brought in
the courts of general jurisdiction in the state where the district is located
or where service is made.” Fed. R. Civ. P. 4(e)(1). Puerto Rico Rule of Civil
Procedure 4.4 (“Puerto Rico Rule 4.4.”) provides the framework for personal
service of process within the Commonwealth of Puerto Rico. P.R. Laws Ann. tit.
32 App. III R. 4.4.
Absent a waiver of summons, the plaintiff shall serve
process “[u]pon a person of legal age, by delivering a copy of the summons and
of the complaint to him personally or to an agent authorized by him or appointed
by law to receive service of process. Id.

Civil No. 17-2208 (FAB)

4

to the defendants by certified mail/return receipt requested, to
their last known address.”

Id.

Hernández published the summons in the San Juan Daily Star,
a newspaper of general circulation.

(Docket No. 17.)

The summons

addressed Núñez and the conjugal partnership, but not Jane Doe.
Id.

Hernández mailed Núñez a copy of the summons and the complaint

by certified mail within 10 days of publishing the summons in the
San

Juan

Daily

Star.

Id.

Hernández,

however,

provided

no

documentation establishing that Núñez received the summons and the
complaint,

or

that

the

summons

and

the

complaint

were

undeliverable.
Núñez did not file an answer.

Two months after publication

of the summons, Hernández moved for default judgment pursuant to
Federal Rule of Civil Procedure 55(a).
denied

Hernández’s

motion

for

(Docket No. 19.)

default

judgment,

The Court

noting

that

service of process in this action was deficient for two reasons.
(Docket No. 20.)

First, Hernández provided “no evidence in the

record showing that the complaint and summons were mailed to the
conjugal partnership.”

Id.

Second, Hernández offered no evidence

that “Núñez received the complaint and summons by certified mail
or that the documents were returned.”

Id.

The Court allowed

Hernández until May 14, 2018 to effect proper service of process
on all defendants in this litigation, placing Hernández on notice

Civil No. 17-2208 (FAB)

5

that failure to serve process properly “may entail dismissal of
this case with prejudice.”

Id. (citing Fed. R. Civ. P. 41(b)).

Hernández failed to comply fully with the Court’s order.

He

demonstrated that the summons and compliant addressed to Núñez
were returned as undeliverable.

(Docket No. 21, Ex. 1.)

Serving

Núñez, but not Jane Doe or the conjugal partnership, however, is
insufficient. 5

Pursuant to Puerto Rico law regarding conjugal

partnerships:
[F]or a court to have jurisdiction over both spouses and
the conjugal partnership when all three have been named
in a suit, it is necessary to serve process on each party
separately. . . . A party may not recover from a spouse
or from the conjugal partnership unless they have been
named in the suit and served with process.
Figueroa v. Valdés, No. 15-1365, 2016 U.S. Dist. LEXIS 39729, at
*14-15 (D.P.R. Mar. 24, 2016) (Domínguez, J.) (internal citations
omitted) (emphasis added).

Hernández offered no evidence showing

that he served process on Jane Doe or on the conjugal partnership.

5

A conjugal partnership pursuant to Puerto Rico law is a marriage where “the
earnings or profits indiscriminately obtained by either of the spouses during
the marriage shall belong to the husband and the wife, share and share alike,
upon the dissolution of the marriage.” Laws P.R. Ann. tit. 31, § 3621; see
Maurás v. Banco Popular de P.R., Inc., No. 16-2864, 2017 U.S. Dist. LEXIS 185574
(D.P.R. Nov. 7, 2017) (“[Plaintiff] never mentioned [the defendant’s wife] or
the conjugal relationship between [the defendant] and [his wife] in his
complaint, other than to state that they are parties. The Court must assume
that his complaint against those parties are due to their relationship with
[the defendant], and therefore they must be dismissed as well.”) (McGiverin,
Mag. J.).

Civil No. 17-2208 (FAB)

6

II. Dismissal for Failure to Prosecute
Federal Rule 41(b) governs involuntary dismissal for failure
to prosecute.

Fed. R. Civ. P. 41(b).

Federal Rule 41(b) states

that:
If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to
dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this
subdivision (b) . . . operates as an adjudication on the
merits.
Id.

“A district court, as part of its inherent power to manage

its own docket, may dismiss a case sua sponte for any of the
reasons prescribed in [Federal Rule of Civil Procedure 41(b)].”
Cintrón-Lorenzo v. Departamento de Asuntos del Consumidor, 312
F.3d 522, 525-26 (1st Cir. 2002) (citation omitted).

Although

“courts unquestionably have power to dismiss cases for want of
prosecution,” dismissal is a harsh sanction, appropriate only when
lesser sanctions are ineffective.

See Caribbean Transp. Systems,

Inc. v. Autoridad de la Navieras, 901 F.2d 196, 197-98 (1st Cir.
1990) (affirming dismissal for failure to prosecute because the
district

court

“ordered

[plaintiffs]

to

serve

their

amended

complaint on each defendant[, and plaintiffs] failed to do so for
an additional seven months”).
To determine whether dismissal is appropriate, courts weigh
the totality of the circumstances.

See Malot v. Dorado Beach

Civil No. 17-2208 (FAB)

7

Cottages Assocs. S. en C. por A., 478 F.3d 40, 43-44 (1st Cir.
2007) (“The appropriateness of a particular sanction, [such as
involuntary dismissal,] thus depends on the circumstances of the
case.”) (citation omitted).

The First Circuit Court of Appeals

set forth the following considerations:

“the severity of the

violation, the legitimacy of the party’s excuse, repetition of
violations, the deliberateness . . . of the misconduct, mitigating
excuses, prejudice to the other side and to the operations of the
court,

and

the

adequacy

of

lesser

sanctions.”

Robson

v.

Hallenbeck, 81 F.3d 1, 2-3 (1st Cir. 1996) (footnote omitted).
“[T]he district court’s decision to dismiss a claim for failure to
prosecute with
discretion.”

or

without

prejudice

is

ordinarily

within

its

Shell Co. (P.R.) v. Los Frailes Serv. Station, 605

F.3d 10, 26 (1st Cir. 2010).

Here, dismissal without prejudice is

an appropriate sanction for Hernández’s repeated failure to serve
process on Jane Doe and the conjugal partnership.
III. Dismissal is Appropriate
The Court dismisses this action without prejudice.
filed the complaint nine months ago.

Hernández

See Docket No. 1; Docket

No. 21, Ex. 1 (citing Fed. R. Civ. P. 4(m)).

According to Federal

Rule 4(m), Hernández should have served process on all defendants
in December 2017.

See Fed. R. Civ. P. 4(m).

The Court, however,

granted Hernández’s request for an extension of time to serve the

Civil No. 17-2208 (FAB)

8

defendants by March 2018.
the

Court

provided

(Docket Nos. 12, 13.)

Hernández

defendants by May 2018.

a

final

(Docket No. 20.)

Subsequently,

opportunity

to

serve

Hernández never served

process on Jane Doe or the conjugal partnership.
The summons that Hernández published in the San Juan Daily
Star constitutes inadequate service of process for Jane Doe and
the conjugal partnership.

According to Puerto Rico Rule of Civil

Procedure 4.5:
[t]he court shall issue an order providing for a summons
by publication when the person to be served . . . cannot
be located although pertinent attempts have been made to
locate him/her . . . and it is proved to the satisfaction
of the court through an affidavit stating the steps
taken[.] . . .
[The order shall also provide that,
within the ten (10) days following the publication of
the summons, the defendant shall be sent a copy of the
summons and of the complaint filed, by certified
mail[.]]
P.R. Laws Ann. tit. 32 App. III R. 4.5 (emphasis added).

Hernández

set forth no evidence that he attempted to serve Jane Doe at all
or the conjugal partnership properly.
see

Figueroa

v.

Rivera,

147

F.3d

See Docket No. 14, Ex. 1;

77,

82-83

(1st

Cir.

1998)

(affirming dismissal without prejudice because “[i]n the seventeen
months that elapsed between the filing of the complaint and the
entry

of

judgment,

the

record

discloses

no

attempt

by

the

appellants to identify or serve any of the anonymous defendants”).
Furthermore,

even

though

the

published

summons

includes

the

Civil No. 17-2208 (FAB)

9

Núñez/Doe conjugal partnership, there is nothing in the record
that shows that a copy of the summons and complaint were mailed to
the conjugal partnership.

Consequently, Hernández remains in

violation of the Court’s April 27, 2018 order to serve defendants
by May 14, 2018.

(Docket No. 20.)

The circumstances in this action warrant dismissal without
prejudice.

“[T]his

court

is

precluded

from

exercising

jurisdiction over the defendants” without sufficient service of
process.
572,

578

Cichocki v. Mass. Bay Cmty. College, 174 F. Supp. 3d
(D.

Mass.

2016)

(citing

Hemispherx

Biopharma

v.

Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008)).
The Court granted two extensions to serve process, both of which
Hernández disregarded.

(Docket Nos. 13, 20); see Malot, 478 F.3d

at 44 (repetition of violations were found where counsel repeatedly
requested extensions, but still missed court imposed and selfimposed deadlines); Leonhardt v. Aerostar Airport Holdings LLC,
294 F. Supp. 3d 13, 17 (D.P.R. 2018) (Gelpí, J.) (citing Robson,
81 F.3d at 4) (“The mere fact that Plaintiff has consistently
ignored the Court’s deadlines is sufficient to cause prejudice to

Civil No. 17-2208 (FAB)
the other side.”). 6

10

Failure to serve process on Jane Doe and the

conjugal partnership impedes the timely progression of this action
without good cause.
The Court allotted Hernández ample time serve Jane Doe and
the conjugal partnership.

Failure to serve process on Jane Doe or

to serve the conjugal partnership properly does not constitute
“good

cause”

for

untimely

service

of

process.

Accordingly,

dismissal without prejudice is proper because Hernández has not
served two of the three defendants in this action notwithstanding
the Court’s orders to do so by May 2018.
IV.

CONCLUSION
For the reasons set forth above, Hernández’s motion for a

preliminary injunction (Docket No. 2) is DENIED, and this action
is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rules of Civil
Procedure 41(b) for failure to prosecute.

Judgment shall be

entered accordingly.

6

See also HMG Property Investors, Inc. v. Parque Indus. Río Cañas, Inc., 847
F.2d 908, 918 (1st Cir. 1988) (citations omitted) (“[T]he law is well
established in this circuit that where a noncompliant litigant has manifested
a disregard for orders of the court and been suitably forewarned of the
consequences of continued intransigence, a trial judge need not first exhaust
milder sanctions before resorting to dismissal.”); Hollingsworth v. Asociación
de Taxi Turístico de P.R., Inc., No. 14-1828, 2015 U.S. Dist. LEXIS 145709, at
*2 (D.P.R. Oct. 26, 2015) (Pérez-Giménez, J.) (dismissing action without
prejudice because the Court granted plaintiff leave eight months after the
complaint was filed to identify unknown defendants, and another two months
passed with no action from the plaintiff).

Civil No. 17-2208 (FAB)

11

IT IS SO ORDERED.
San Juan, Puerto Rico, June 28, 2018.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE