Mandes v. Villas del Mar Hau, Inc. et al
Filing
34
OPINION AND ORDER denying without prejudice 33 Motion to Dismiss for Lack of Prosecution. Signed by Judge Silvia L. Carreno-Coll on 6/3/2021. (MCV)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
CARLOS MANDES
Plaintiff,
v.
CIV. NO.: 18-1302 (SCC)
VILLAS DEL MAR HAU, INC.,
Defendant
OPINION AND ORDER
Several days prior to the discovery cut-off deadline set by
this Court, see Docket No. 32, Defendant moved for the
dismissal of the instant action for lack of prosecution
pursuant to Federal Rule of Civil Procedure 41(b) (“Rule
41(b)”). See Docket No. 33. According to Defendant, to date,
Plaintiff has allegedly failed to respond to the written
discovery that he was served on October 31, 2018 and has yet
to submit expert reports. Id. at ¶ 10. Defendant further
MANDES v. VILLAS DEL MAR HAU, INC.
Page 2
contends that the only movement regarding this case, since it
was filed, has been the concession of a six month stay 1 and the
conversion 2
of
two
pre-trial
conferences
into
status
conferences. Id. As such, Defendant understands that Plaintiff
has lost all interest in the instant case and dismissal of the
same is therefore warranted.
Rule 41(b) allows the Court to dismiss an action due to a
plaintiff’s failure to prosecute or comply with the Federal
Rules of Civil Procedure or any order issued by the Court. See
Fed. R. Civ. P. 41(b). However, this particularly harsh dose of
medicine is not to be administered indiscriminately, for
dismissal under this rule is “reserved for cases of ‘extremely
On March 11, 2019, a six month stay went into effect in light of Real
Legacy Assurance Company Inc.’s (“Real Legacy”) liquidation. See Docket
No. 18. The stay was lifted on September 5, 2019. See Docket No. 21. Real
Legacy was identified as Defendant’s insurer in the Complaint. See Docket
No. 1 at ¶ 6. Partial Judgment dismissing with prejudice Plaintiff’s claims
against Real Legacy was entered on March 12, 2019. See Docket No. 19.
1
Plaintiff’s cited the COVID-19 pandemic as the cause for delay affecting
the discovery proceedings. See Docket Nos. 26 and 30. Defendant
consented to Plaintiff’s requests. Id.
2
MANDES v. VILLAS DEL MAR HAU, INC.
Page 3
protracted inaction (measured in years), disobedience of court
orders, ignorance of warnings, contumacious conduct, or
some other aggravating circumstance.’” See Benítez-Garcia v.
González-Vega, 468 F.3d 1, 4 (1st Cir. 2012) (quoting Cosme
Nieves v. Deshler, 826 F.2d 1,2 (1st Cir. 1987)).
Here, Defendant’s motion presents a series of discovery
issues which have been prematurely brought before this
Court. While considerable time has elapsed since the filing of
this case, Defendant filed the instant motion prior to the
discovery cut-off date and did not reference any attempts on
its part to meet and confer with Plaintiff in order to solve the
discovery issues raised in its motion. The Court finds that,
Plaintiff’s conduct—as described by Defendant in its motion
and after a review of the case record—does not warrant
dismissal under Rule 41(b), at this stage. Instead, because the
issues raised in Defendant’s motion are discovery related
disputes, Defendant should first seek relief under Federal
MANDES v. VILLAS DEL MAR HAU, INC.
Page 4
Rule of Civil Procedure 37. 3
Accordingly, Defendant’s motion to dismiss for lack of
prosecution at Docket No. 33 is hereby DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 3rd day of June 2021.
S/ SILVIA CARREÑO-COLL
UNITED STATES DISTRICT COURT JUDGE
The Court reminds Defendant that such “motion must include a
certification that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or discovery in
an effort to obtain it without court action.” See Fed. R. Civ. P. 37(a). To this
extent, the Court adds that Local Rule 26(b) also highlights this point by
stating that “[a] judicial officer shall not consider any discovery motion
that is not accompanied by a certification that the moving party has made
a reasonable and good-faith effort to reach an agreement with opposing
counsel on the matters set forth in the motion. An attempt to confer will
not suffice.” L. Cv. R. 26(b).
3
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