PADILLA-RUIZ et al v. COMTEK COMMUNICATION TECHNOLOGIES, INC., et al

Filing 47

ORDER re 34 Report and Recommendations; granting in part and denying in part 22 First Motion to Dismiss for Failure to State a Claim. The court does hereby SUSTAIN the objection to the R&R filed by COMtek with respect to the Puerto Rico labo r law claim. Accordingly, the Puerto Rico labor law claim is DISMISSED for failure to state a claim upon which relief may be granted. Further, the court DENIES COMtek's Motion to Dismiss the Plaintiffs' Puerto Rico tort law claim for failur e to state a claim upon which relief may be granted. Additionally, the court, REJECTS the findings set forth in the R&R regarding the timeliness of the USERRA claim, and FINDS that the claim is not time-barred and may proceed. Accordingly, the cou rt GRANTS IN PART and DENIES IN PART COMtek's Motion to Dismiss. The case will go forward on the USERRA and Puerto Rico tort law claims. A copy of this order was forwarded to all parties on 2/15/18. Signed by Chief District Judge Rebecca Beach Smith and filed on 2/15/18. (tbro)

UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

RAUL PADILLA-RUIZ, et al.,
Plain-tiffs,
CIVIL ACTION NO,

V.

2:16cv630

COMTEK COMMUNICATION

TECHNOLOGIES,

INC.,

Defendant.
MEMORANDUM OPINION

This

and

matter

Memorandum

comes

in

Defendant,

COMtek

on May 12,

2017.

before

the

Support

22,

23.

Raul

and

Society

(collectively,

Earnings)

their

Memorandum in Opposition on June 9,
filed

a

Reply

on

June 13, 2017,

filed on October 26,
On

United

June

15,

States

magistrate

28 U.S.C.

§

72(b),

conduct

to

necessary,

this

636(b) (1) (B)

and

to

and

hearings,
submit

2017,

including

to

Dismiss

filed

ECF No.
29.

28,

The

by

C'COMtek"),
Vivian J.

Partnership

{Legal

filed

a

and COMtek

Complaint

was

1.

referred

pursuant

the

Inc.

"Plaintiffs"),

Federal

to

"Motion")

Conjugal

ECF No.

court

judge,

Motion

Padilla-Ruiz,

2016. Compl., ECF No.

2017,

the

Technologies,

Franceschini-Rodriguez,

of

on

(collectively,

Communication
ECF Nos.

court

to

Rule

the

the
of

to

provisions

Civil

evidentiary

undersigned

Motion

a

of

Procedure

hearings,

district

if

judge

proposed

findings

of

fact,

if

applicable,

and

recommendations

for the disposition of the Motion. ECF No. 30.

The magistrate judge denied COMtek's request for a hearing,
ECF

No.

record.

32,

finding

Report

September 15,
recommended

part.

Id.

and

the

the

Motion

21.

By

be

copy

could

("R&R")

magistrate

the

1,

issues

Recommendation

2017,

that

at

that

of

the

decided

on

5,

at

judge

granted

be

ECF No.

34.

filed
in

R&R,

the

part

the

R&R,

and

the
On

which

denied

magistrate

in

judge

advised the parties of their right to file written objections to
the

findings

and

recommendations

contained

the consequences of foregoing that right.
On
R&R.

September
Obj.,

October 27,
Obj.

ECF
2017,

Reply,

December 13,

file

22,

No.

COMtek

35.

well

as

Id. at 21-22.

filed

The

as

an

objection

Plaintiffs

to

replied

the
on

but did not make any objections of their own.

ECF

No.

2017,

40.

The

court

conducted

a

hearing

on

after which the parties were granted leave to

supplemental

replies,

2017,

therein,

briefs.

Both

parties

have

filed

briefs

and

and the matter is ripe for decision.

Pursuant

to

28

U.S.C.

§

636(b) (1)

and Rule

72(b) (3)

of the

Federal Rules of Civil Procedure, the court shall make a ^

novo

determination of those portions of the R&R to which a party has

objected.

While

disregarded,

clearly

a

procedurally

defaulted

issue

is

normally

the court may sua sponte ensure that the R&R is not

erroneous

or

contrary

to

law.

See

Thomas

v.

Arn,

474

U.S.

140,

150

(1985)

(announcing

that

district

precluded from sua sponte review ''under a ^
standard" if no objection is
Accident

Ins.

Co.,

416

filed);

F.3d 310,

absence of a timely filed objection,

are

not

novo or any other

Diamond v.

315

judges

(4th Cir.

Colonial Life &
2005)

r[l]n the

a district court

.

.

. must

^only satisfy itself that there is no clear error on the face of
the

record.'"

(quoting

Fed.

R.

Civ.

P.

72(b)

Advisory

Committee's note to 1983 amendment)).

Under
modify,

this

in

magistrate

framework,

whole
judge,

instructions."

or
"or

28

in

''the
part,"

recommit

U.S.C.

court

may

the

the

accept,

reject,

recommendation

matter

§ 636(b)(1);

to

s^

.

.

Fed.

.

of

the

[him]

R.

or

with

Civ.

P.

72(b) (3) .
I.

The

facts

of

this

by the magistrate judge.

case are

fully

and accurately set

See R&R at 2-8.

For context,

forth

however,

a

brief outline of the relevant events is set forth below.^
The

Plaintiffs

discriminated
August 13,

against

2008,

allege,

and

inter

terminated

alia,

Mr.

that

COMtek

Padilla-Ruiz

on

in violation of the Uniform Services Employment

^ The court assumes without deciding the facts set forth in
the Complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572
(2007)
(The court "must accept as true all of the factual
allegations contained in the complaint" in ruling on a motion to
dismiss, (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508
n.l

(2002))).

and

Reemployment

and

in

Rights

violation

Compl.

SISL 15,

bring

30,

this

of

Act

Puerto

38.

This

action

('"USERRA") ,
Rico's

is

the

against

for

attempt

the

was

District

dismissed

Padilla-Ruiz v.

2010

WL

at

without

*5

Rico.

Apr.

R&R

Inc.,

26,

the

Padilla-Ruiz v.

(D.P.R.

2012),

second

Plaintiffs

a

Rico

Complaint,

District

The

improper

No.

first

venue,

09-1695

2010).

to

Plaintiffs

3-4.

United States,

suit

different

statutes

October 26,

laws.

The

(SEC),

Plaintiffs

2016,

893 F.

Supp.

2d

apparently believing that the additional

Puerto

face

relevant

at

for

inclusions would remedy the venue problem.
and

the

United States

prejudice

(D.P.R.

tort

second suit that named additional defendants and

causes of action,

304

Puerto

4301-35,

third attempt

Twice,

in the

§§

and

Plaintiffs'

COMtek Commc'ns Techs.,

1728311,

then brought a

301,

of

U.S.C.

labor

COMtek.

unsuccessfully filed these claims
Court

38

and whether

barrier:

limitations

the

the

dismissed.

adjudicative

of

when

was

See id.

Plaintiffs

Plaintiffs

It did not,
Id.

Now,

the

whether

the

expired
filed

alleged

before

the

present

sufficient

facts

to support violations of Puerto Rico law.

In

this

magistrate

regard,

judge

there

that

Plaintiffs'

USERRA

applicable

statute

Plaintiffs

have

are

claim

stated

were

of
a

two

issues

relevant
is

time-barred

limitations;
cause

here:

of

action

and
under

presented

(1)

to

the

whether

the

pursuant
(2)

to

the

whether

the

Puerto

Rico

labor

or tort law.
at

9-13,

Def.'s Suppl.

ECF

No.

magistrate judge,
828,

835-36

42

Mem.

Supp.

("Def.'s

2013),

Dismiss and Obj .

R&R

Mem.").

Suppl.

citing Baldwin v.

(4th Cir.

Mot.

the

First,

City of Greensboro,
that

found

714 F.3d
(4)

USERRA's

four

year

limitations period had lapsed before commencement of the instant
action

for

two

Act of 2008
{codified

reasons:

{^^VBIA"),

at

38

(1)

Pub.

U.S.C.

the

L.

Veterans'

No.

Benefits

110-389,

§ 4327),

122 Stat.

effective

which amended USERRA by eliminating the four

limitations,

did

tolling was

not

also noted the
would be
at

not

apply

justified.
Plaintiffs'

subject

to the

10-13.

4145,

October 10,

(4)

retroactively;

R&R at

Improvement
4163
2008,

year statute of

and

(2) equitable

The magistrate

judge

stipulation that their USERRA claim

four

(4)

year

limitations period.

Id.

10.

Second,

alleged

the

magistrate

sufficient

labor law.

Id.

facts

to

judge

found

state

a

that

claim

the

under

Plaintiffs

Puerto

Rico

at 16-18.^ Because the magistrate judge found a

^ COMtek objects to this finding based on the retroactivity
principles
was

not

discussed
discussed

infra Sections
in

this

context

II.A,
at

II.C.
this

Retroactivity
stage

of

the

proceeding before the magistrate judge, because COMtek did not
raise the issue in its Motion. Def.'s Mem. Supp. Mot. Dismiss
at 8-9, 13, ECF No. 23. The closest COMtek came to raising this
argument before the R&R was filed was through a generic argument
that

''[t]he

support a

Plaintiffs

have

failed

to

allege

any

facts

to

conclusion that Padilla was terminated because of his

status as a
however, can

servicemember." Id.
at 13. COMtek's generality,
perhaps be attributed to the Complaint's lack of

clarity. See Compl.

HSI 38,

40,

42

{citing merely the ''labor laws

cause

of

concluded

action

that

available

the

under

Plaintiffs

could

claim based on the same conduct.
labor or employment
plaintiff
[tort]

seeks

claim .

(D.P.R.

[]he

Id.

is

. based on the

Franceschi-Vazquez

not

Rico

labor

proceed

at

18

on

law,

their

{'MWjhen a

he

tort

specific

law covers the type of conduct for which a

relief,
.

Puerto

v.

2016))).

CVS

barred

same

making

also

bringing

alleged conduct."

Pharmacy,

After

from

183

F.

his

Supp.

3d

a

(quoting
333,

recommendations,

344
the

magistrate judge informed the parties of their right to have the
R&R reviewed by filing timely objections and the consequences of
failing to adhere to that procedure.

COMtek
Puerto
Mr.
time

Rico

timely
labor

Padilla-Ruiz
of

filed

an

law

was

termination,

not
or

claim
a

to

could

member

of

labor

law

finding

proceed,
a

that

arguing

protected

class

that

the

one

claim

had

alternatively,

the

the

at

the
that
the

(1)

year

expired.

Obj .

limitations

period

at 2-4.

Plaintiffs only responded to COMtek's objection and

The

for

objection

did not make any objections of their own.

See Obj. Reply.

of Puerto Rico against discrimination Public Law No. 80 of may
[sic] 30, 1976, also claims under Puerto Rico Civil Code Article
1802, 1803 31 L.P.R.A. Sec. 5141, et. seq.,
(Torts)" as bases
for relief (emphasis in original)).

II.

A. Puerto Rico Labor Law Claim

Mr.

being

Padilla-Ruiz

allegedly

active

duty

status.

discriminated

may

P.R.

not

Laws

this

a

be

had

as

a

tit.

August

due

to

15,

SISl

29,

§

13,

30.

protected

discriminated

Ann.

his

Puerto

class;

against

146.

class

in

retroactive

terminated

See

magistrate

judge's

effect

approximately

enactment.

R&R at

2012,

four

16.

finding

he

to

Mr.

(4)

that

the

as

has

such,
of

an

an
such

magistrate

servicemembers
address

prior

therefore,

the

as

Padilla-Ruiz,

years

COMtek,

not

after

Rico

because

Though

did

2008,

status

under the laws of Puerto Rico,

protected

law

on

against

Compl.

servicemembers

judge noted that,
became

terminated

servicemember.

categorized
individual

was

to

whether
who

the

law's

objected

Plaintiffs'

was

to

Puerto

the

Rico

labor law claim survived its Motion. Obj. at 2-3.
Like

presumed
expressly

federal

to
or

legislative
F.3d 742,

have
by

no

avail

labor

law

himself,

1995).

cause

he

v.

statutes

only,

See

of

action

was

P.R.
of

the

demonstrates
Puerto

On its face,

2012

generally

unless

Rico

Laws

which

a

Tel.

are

statute
contrary
Co.,

64

§ 146 does not apply

legislative history does

intent.

when

inference

Rivera-Flores

and the

such

Rico[]

effect

inescapable

(1st Cir.

retroactively,

was

"Puerto

prospective

intent."

751

demonstrate

laws,

not

232.

Mr.

As

inescapably
such,

Padilla-Ruiz

terminated by COMtek.

there
could

Consequently,

upon ^

novo

review,

COMtek's

objection

is

SUSTAINED,

and

the

Puerto Rico labor law claim is DISMISSED.^
B.

The

magistrate

because he

found

labor

claim.

law

Motion
under

Puerto Rico Tort Law Claim

in

judge

that

Puerto
Rico

labor

dismissed,

this

proceed with

a

court
tort

Plaintiffs'

law incorporates
See Compl.
''Facts").
§

5141.

did

claim

now

for

is

based

Compl.

1

''Causes of Action"

42

{raising

or

(Torts)").
omission

of

"claims

damage

to

state

a

the

claim
to

claim

Plaintiffs
alleged

Ann.

tit.

31,

§

5141.

Under

is

may

conduct.

Puerto

Rico

under

Laws Ann.
the

another

tit.

31,

provisions

1803 31 L.P.R.A.

the

tort

in the Complaint.

Sec.

of

5141,

"A person who by an
through

fault

negligence shall be obliged to repair the damage so done."

Laws

the

(incorporating Part III,

That provision provides:

causes

COMtek's

3d at 344.

The Complaint then references P.R.

Seq.

act

same

violations

Puerto Rico Civil Code Article 1802,

et.

the

and

claim

Puerto Rico

objection

the

all previously stated facts

Part IV,

to

COMtek's

on

tort

address

failure

whether

Supp.

for

not

sustained

reviews

183 F.

claim

He

Because

action

See Franceschi-Vazquez,
The

17-18.

law.

law

Plaintiffs'

could bring a

dismissal

tort

the

Plaintiffs

at

to

Rico

Puerto

the

R&R

regards

dismissed

low-threshold

or
P.R.

pleading

^ Given the court's ruling on COMtek's objection, the court
does

not

address

the

statute of

limitations

issue on t h i s

claim.

standard

court
for

of

Ashcroft

FINDS

the

that

v.

Iqbal,

the pleading

Plaintiffs

to

have

556

is

U.S.

sufficient,

stated a

678

at

claim for

be granted under Puerto Rico tort law,
this

662,

(2009),

this

which

the

juncture,
relief may

and the Motion to Dismiss

claim i s DENIED.

At

a

threshold

level,

before

consideration

of

the

merits,

there is a question whether any tort law claim by the Plaintiffs

under

Puerto

Rico

law

is

time-barred.^

^'In

Puerto

Rico,

the

statute of limitation for general tort claims elapses after one
year

^from

the

time

thereof.'" Torres

543-44

(D.P.R.

However,

this

v.

the

Hosp.

2011)
statute

aggrieved

person

San Cristobal,

831

(quoting P.R.
of

had

knowledge

limitations may be

Supp.

tit.

Laws Ann.

F.

31,

2d 540,

§

5298).

tolled pursuant

to

Article 1873 of Puerto Rico's Civil Code by the "institution [of
the claim]

before the courts."

Rodriguez v.

Suzuki Motor Corp.,

^ This ruling does not preclude later dispositive motions
upon

discovery,

which

whether

necessary

the

statute

is
to

unclear,
"claims"

of

due

claim

to

is

for

the

court

the

time-barred under

to

as discussed infra in text.

It

law

be

Rico law,

^

tort

also

determine

references

the

may

general

in COMtek's Motion,

limitations

on

the

tort

law

and

whether
claim

is

Puerto

unspecified
the

issue

raised.

of
See

Mem. Supp. at 3, 5, 8, 9. The issue should be raised as an
affirmative defense in a pleading, in order for the court to
rule on i t . See, e.g., Eriline Co. S.A. v. Johnson, 440 F.3d
648, 653 (4th Cir. 2006)
("[T]he statute of limitations is an
affirmative defense, meaning that the defendant generally bears
the burden of affirmatively pleading its existence."); Fed. R.
Civ.

P.

8(c) (1).

570 F.Sd 402,
But,

407

{1st Cir.

2009)

{internal quotations omitted).

the inquiry does not end here.
Under
based

Puerto Rico tolling rules,
on
the
Spanish
civil

institution

commonly
running

of

are
the

court

is

only to
interrupt
applicable
statute

the
of

an

held not
of
the

limitations

which
law,

but,

at

action

least

in

in

the

event

of

a

voluntary or usual non-prejudicial dismissal
of the original action, to cause the entire
limitations period to run anew from the date
the previous action came to a definite end.

Id.

(emphasis added)

Comerio,

a

404 F.Sd 548,

definite end, '

is

v.

"[T]he

rule

(alteration
at 554).

Mun.

Puerto

exception

[tolling]

(1st Cir.

dismissed

Rodriguez-Garcia

possible

552

inter alia,

voluntarily

2004)).

(quoting in full

is

in

to

original)

Moreover,

where

Mun.

of

"An action comes to

on the date upon which such action

prejudice."

Caguas,

Rico

abused

2005)).

without

of

the

Lopez-Gonzalez v.

354

Supreme

restart
or

used

(quoting
"an

Court

rule
in

F.Sd

91,

97

ha[s]

Mf]or

bad

Id.

(1st

Cir.

suggested

cases

faith.'"

where
Id.

Lopez-Gonzalez,

involuntary

(citing

a

the

at

408

404
[is]

dismissal

F.Sd
made

without prejudice but as a sanction," such a dismissal "does not
toll

the

s t a t u t e of

Here,
August

first

the

Plaintiffs

IS,

2008,

filed

on

limitations.

limitations."

The

when Mr.

July

22,

relevant

had

Id.

knowledge

of

the

alleged

Padilla-Ruiz was terminated.

2009,

thereby

claims

10

in

tolling

that

suit

the
were

tort

on

Suit was

statute

of

dismissed

without prejudice on April

on April 25,
limitations

claims

2011,

October 28,

period

and

filed on October 26,
limitations
expired

period

under

Rodriguez,

prejudice

F.3d

again

on
was

less than one year later.

Thus,

the

Rico's
at

relevant

court

tort

407

before

the

this

the

suit

filed

year statute of

Thereafter,

current

2016,
for

(1)

without

this

Puerto

570

The second suit was

expired.

dismissed

2015,

2010.

one day before the one

restart

were

26,

claim

tolling
(quoting

appears

and

not

restart

to

have

rule.

See

404

F.3d

Lopez-Gonzalez,

at 552).

However,

i t is unclear from the record before this court at

this juncture whether the second filing of the lawsuit in Puerto
Rico,

after the first dismissal of the claim for improper venue,

constituted ''bad faith" or an "abuse" of the tolling and restart
rule in Puerto Rico.
Rico

tort

claim

is

Accordingly,

whether the Plaintiffs'

time-barred,

pursuant

to

the

Puerto

applicable

statute of limitations, remains an issue in the case.®
C.

USERRA Claim

1.

The magistrate
of

limitations

Plaintiffs

filed

on

judge
the

found

that

USERRA

the Complaint.

the

claim

R&R at

® See supra note 4.
11

four

had

(4)

expired

10-16.

year

statute

before

the

Not only did the

Plaintiffs

fail

to
the

correctly notes,

is

governed

Mem.
28;

by

Law Supp.

object

Plaintiffs

a

four

(4)

Response

to

this

finding,

stated

year

statute

in Opp'n Mot.

Def.'s Response Mem.

Pis.'

that

but

their

COMtek

USERRA

claim

limitations.

of

Pis.'

Dismiss at

Opp'n at 2,

as

3,

ECF No.

5,

ECF No.

29.

The court

from

reviewing

turns sua sponte to review this issue.^
COMtek

this

asserts

issue because

that

the

by failing to object.
Milyard,

566 U.S.

554 U.S.

237,

616,

622

(4th

Cir.

R.

72(b) (3)).

P.

472-75

2007);

Inc. ,

Civ.

Plaintiffs

(2008);

Food Mkts. ,

court

993 F.

Mem.

(2012);

barred

at

4-7

Greenlaw v.

United States v.
DietGoal

Supp.

The

is

waived their

Def.'s Suppl.

463,

245-46

this

cited cases

598
and

United States,

LLC

(E.D. Va.
rule

court

held

a

hearing

on

December

review

(citing Wood v.

Weqmans

2013);

are

13,

478 F.3d

v.

dispositive here,® as no categorical bar exists for

^ The

to

Midgette,

Innovations

2d 594,

right

Fed.

simply not

reviewing

2017,

and

informed the parties of its thoughts thereon and the need for
sua sponte review. Additionally, at the hearing, the parties
were given leave to file supplemental briefs on this issue.
Cf.
Day V. McDonough, 547 U.S. 198, 210 (2006) ('MB]efore acting on
its own initiative, a court must accord parties fair notice and
an opportunity to be present in their positions.").

® Wood concerned a court of appeals' sua sponte review in a
habeas
corpus
case
of
an
intelligently waived
statute
of
limitations
defense
by
the
state
during
district
court
proceedings. 566 U.S. at 473. Relatedly, Greenlaw involved a sua
sponte enhancement of a criminal sentence on appeal, when the
benefiting party did not cross-appeal. 554 U.S. at 245-4 6. The
third case,
Midgette,
dealt
with
review of
non-objected-to
portions of an R&R by a court of appeals. 478 F.3d at 621.
12

courts,

in appropriate circumstances,

to relieve a

party from a

judicial admission and correct a clear error of law.

A

judicial

""conclusive
withdrawn.

(4th Cir.
1199

2004)

to

conclusion

case,"

unless

v.

Berkshire

Cir.

waivers
prove
of

a

1995)).

that

the

law."

Id.

at

court

Ins.

Life

Co.,

include

the

necessary

372

264-65.

F.3d

58

courts,

is

to

261,

be
264

F.3d 1194,

party

establish

Trial

it

"intentional

opposing
to

that

allows

United States,

They

release

facts

representation

the

(quoting Keller v.

(7th

unambiguous

is

the

Meyer

n.8

burden

in

admission

from

the

and

its

waived

however,

are

"'given broad discretion to relieve parties from the consequences

of

judicial

admissions

[c] onsiderations

of

in

fairness

appropriate
and

judicial admissions." MacDonald v.
337,

340

527

F.2d

ha[ve]

(6th Cir.
941,

944

1997)
(1st

the

Gen.

cases"

policy

of

1975)).

Courts

to

encouraging

Motors Corp.,

(quoting United States v.
Cir.

due

110

F.3d

Belculfine,

""unquestionably [ ]

the right to relieve a party of his judicial admission if

There, the Fourth Circuit applied the appellate waiver rule,
finding that the ""requirement to make objections preserves the
district court's role as the primary supervisor of magistrate
judges."
Id.
DietGoal
Innovations
involved
a
review
of
a
magistrate judge's non-dispositive order under Rule 72(a) of the
Federal Rules of Civil Procedure.
993 F.
Supp.
2d at 598.

Federal Rule of Civil Procedure 72(b) (3) establishes ^
novo
review for objected portions of an R&R. These cases and rules
simply do not address the district court's entry of a final
judgment on sua sponte clear error review, absent objections to
a magistrate judge's R&R, as was specifically addressed by the
Supreme Court in Thomas, 474 U.S. at 154.
13

i t appears that the admitted fact is clearly untrue and that the

party was laboring under a mistake when he made the admission."
New

Amsterdam

Cas.

Co.

v.

1963}

(footnote omitted).

legal

principles,

Waller,

323

Furthermore,

as

he

conceives

he

makes

no

judicial

estoppel

which

would

facts

.

applicable,

.

.

understands

On

,

the

them."

prevent

the

proper

F.2d

20,

and

which

admission

court

and

from

Cir.

establishes

admission,

2017,

2014).

that

made

the

Here,

it

is

counsel's
parties

admission.
mistake

principles

counsel,

was

appropriate

to

Cruz,

up

to

the

filed

no

the

[c]ourt

the

because
a

323

mistake"
F.2d

involving

it

the

at

a

Maypa,

Motion

773 F.3d

discussed

statute

erroneous.

relieve

under

Amsterdam,
one

44.

of

The

relief from a

admission

''laboring

is

thinks

sets

as

Plaintiffs

Plaintiffs'

for

New

here

No.

request

judicial

were

ECF

the

by

this motion as a

Cir.

Id.

December 22,

{4th

he

applying

Requesting Judicial Notice/Knowledge of Cruz v.
138

(4th

"[w]hen counsel speaks of

them

legal

24

below,

limitations

court

construes

judicial admission.

Plaintiffs
is

clear

their

that

the

made

the

Furthermore,

the

when
24.

of

they

applicable

law;

nothing

prevents the court from addressing and applying the correct law.
See

id.

Finally,
from

and

reviewing

importantly,

district

non-objected-to
14

judges

portions

of

are
an

not

barred

R&R

before

disposition
final

of

the

authority,

order,

but a

Thomas,

474

577 F.3d 752,

R&R);

Fed.

either

as

a

magistrate

at

154;

760-61

Schur v.

(7th Cir.

(requiring ^
R.

Civ.

P.

statute

the

because

district
judge^s

judges

R&R

is

remain

not

recommended disposition to the district
U.S.

§ 636(b)(1)

matter,

or

L.A.

Weight

2009);^

a

the

final

judge.

Loss Ctrs.,

See

Inc.,

generally 28 U.S.C.

novo review of objected portions of an

72(b)(3)

(same).

the

that

rule

It

a

does

not

district

follow

court

is

from

barred

from reviewing portions of the R&R to which objections were not
filed,

when

potential
could

create,

at

Indeed,

is

a

impermissible

dispositive
U.S.

there

i.e.,

issue

154,

by

such

clear

error

of

constitutional

non-Article

an

Aside

implications

the non-consensual

a

law.

III

interpretation

final

a

such a

see

states that ''[w]hen no timely objection is filed,

72(b)

Diamond,

Committee's

note

to

1983

(quoting Fed.
amendment);

R.

474

specifically

the court need

Advisory Committee's note to 1983 amendment;

416 F.3d at 315

a

fallacy.

only satisfy itself that there is no clear error." Fed.
P.

of

Thomas,

logical

the Advisory Committee's Note to Rule 72(b)

the

rule

disposition

judge,
is

from

R.

see,

Civ.
e.g..

Civ.

P.

72(b) Advisory

Pearson

v.

Colvin,

^ Schur is cited in DietGoal Innovations,

993 F.

58

F.

Supp.

2d

at 600, a case relied upon by COMtek. See supra note 8 and
accompanying text. The court in Schur found that a ^'magistrate
judge's recommendation on a dispositive matter is not a final
order, and the district judge makes the ultimate decision to
adopt, reject, or modify it." 577 F.3d at 760 (citing 28 U.S.C.
§

636(b)(1);

Fed.

R.

Civ.

P.

72(b)(3)).
15

Supp,

3d

grounds,

Supp.

577,
810

3d

grounds,

581

F.3d

626,

204

629

Inc.,

Airlines
2d

535

Cir.

Va.

Supp.

Corp.

(E.D.

2014)

Va.

v.

(same),

2015);

2014)

(4th Cir.

2 F.

Reporting

Va.

(4th

(E.D.

783 F.3d 987

Bankshares,

533,

(E.D.

Jones

(same),

2015);

3d 824,

828

(same).

should not ''rubber stamp" an R&R,

v.

Clarke,

vacated

Masterson v.

(E.D.

Sarrion Travel,

2012)

rev^_d__on__otlier

Va.

on

7

F.

other

Commonwealth

2014)

Inc.,

84 6

(same);
Supp.

this

Accordingly,

F.

court

but should review i t for clear

error and satisfy itself there is none.
2.

USERRA claims
limitations

until

were

subject

October

to
38

2008,

a

four

U.S.C.

(4)
§§

year

statute

4301-35,

at

of

which

time the limitations period was extended in perpetuity by VBIA.
38 U.S.C.

§ 4327(b).

August 2008,
i.e.,
had.

Plaintiffs'

if any,

action

accrued

in

effect the change in the limitations period

The R&R cites one case,
828

(4th

Cir.

773

F.3d at

Baldwin v.

2013),

(4) year period governs.

by Cruz,

USERRA

so the question is what limitations period applies,

what,

F.3d

four

The

144-45,

City of Greensboro,

714

concluding

the

in

However,

that

Baldwin was distinguished

and Cruz was not

addressed in the

R&R.

As

previously

stated,

federal

prospective

effect.

Landgraf

265

{"[T]he

presumption

(1994)

v.

USI

laws

are

Film

Prods.,

against
16

presumed
511

retroactive

to

have

U.S.

244,

legislation

is deeply rooted.").

Importantly,

operate

^retrospectively'

arising

from

at 269

conduct

''[a]

statute does not

merely because it is applied in a case

antedating

the

statute's

enactment."

Id.

(citation omitted).

In

Baldwin,

abolishment

appears,

the

Fourth

USERRA's

of

retroactively.

claim

however,

statute

had

expired

period more than six
at 836.

of

714 F.3d at 835-36.

is not dispositive.

that

Circuit

limitations

that

VBIA's

not

operate

did

This holding,

as clear as it

Baldwin was concerned with a USERRA

under

(6)

ruled

the

four

(4)

year

limitations

months before the VBIA amendment.

Id.

This timing was recognized as a material distinction by

the Fourth Circuit in Cruz,

773

F.3d at 144-45

{citing Baldwin,

714 F.3d at 836) .

Specifically,

in

Cruz,

the

limitations period governs a
at

the

alive.

date

Id.

Trafficking
to

a

four

of

accrual

The

appellant

and

Violence

(4)

year

thereby,

because

limitations

Circuit

claim when the
extended

argued

while

that

the

of

claim

period

addressed

the

claim

her

limitations

was

is

and

to

ten

period.

Id.

at

143-44.

The

Fourth Circuit

Baldwin

implicitly recognized

that
17

a

agreed,

change

in

the

be

proceed

(10)

while her claim was still alive under the original four

of

pursuant
would

nevertheless

extended

still

Victims

claim accrued

could

what

limitations period

although

Protection Act

statute

time-barred
the

is

Fourth

years

(4)

year

holding

that

limitations

period by enactment of new legislation applicable to "unexpired
claims

does

not

^attach[]

new

legal

completed before its enactment,'" and,

to

an

impermissible

at 145

retroactive

(alteration

Lanqraf,

511

claims

U.S.

were

limitations
conduct,'

shorter

in
at

alive
does

at

not

because

limitations

party

a

events

Landgraf,Id.

omitted)
"[a]s

extending
party's

already

period."

under

simply,

enactment,

to

""does not give rise

(footnote

Stated

^increase

the

thus,

effect

original)
270).

consequences

(quoting

long

the

statute

a

as

of

liability

for

liability

under

(quoting

Id.

faced

Landgraf,

511

past
the

U.S.

at 270).

The
case

at

court

is

now

bar—whether

faced with this

the

Plaintiffs'

precise
claim

situation in the

is

governed

the

statute of limitations period in effect

on the

or

took

effect

answers

that

the

longer

USERRA

cause

of

action

the

claim

longer
was

period
accrued

limitations

still

controls.

alive.
Id.

period

Cruz
The

2008,

the

the claim was alive,

Less

statute

Fourth

advances

Circuit

in

than

of

one

(2)

As a

of accrual

while

months

was

later,

the

on

extended while

result,

retroactivity

Id. at 144-45.

argument

Baldwin

two

limitations

just as in Cruz.

principles are not implicated.
COMtek

squarely

Plaintiffs'

on August 13, 2008.

October 10,

that

date

by

held

USERRA's statute of limitations,
18

to

that

avoid

this

Congress,

result:

in

The

amending

expressly spoke to the temporal

scope

of its

amendment.

[of Congress's intent]

Baldwin does

714

F.3d at

578

662

{7th

655,

"inquiry

analyze

could

end

whether

that

the

in the text suggests that

prospectively,"
F.3d

state

836

Cir.

Congress

Id.

in

[VBIA]

{quoting Middleton v.

2009}),

[there]."

''only hint

and

fact

Chicago,

suggested

However,

expressly

applies

that
did

Baldwin

its
not

prescribed

proper reach.

Instead,

court found a

''hint" that VBIA's reach is possibly prospective.

578

F.3d at

662-63

retroactive

Baldwin relied on Middleton,

VBIA's

("Congress was aware that for

effect,

it

needed

to

say

so

in which the

[VBIA]

expressly,

to have
and

the

absence of any such express language in the text indicates that
Congress chose not to do so.").

VBIA was

prospective;

VBIA was

not

the

F.3d at
there

that
578

retroactive

enactment

Middleton

of

did

not

836.

might

would be

some

Id.

a

used

USERRA

Baldwin,

VBIA

to

be

the

USERRA

claims

new

"hint"

claim that

in

fact,

expressly

and importantly,

governed by the

in October 2008,

limitations

In essence,
sentence,

find

to

it

that

to

hold

that

expired before

recognized
prospective.

that
714

Middleton posited that
accrued

statute

of

prior

to

limitations.

VBIA

See

663.

In sum,
statute of

VBIA.

Moreover,
be

F.3d at

rather,

But Middleton did not hold that

for

VBIA eliminated the four

USERRA claims.

However,

{4)

Congress

year
did

COMtek urges this court to look at this one

and this one sentence only, without proper context.
19

not

expressly

enactment
courts

had

indicate
governed

are

in

that
by

Baldwin

already

limitations

and

expired
were

enactment.

This

only

the

new

Middleton

under
not

claims

accruing

statute

held

USERRA's

that

four

retroactively

court,

however,

is

of

not

claim

was

alive

reasoning in Cruz,
that

the

four

when

VBIA

(4)

(4)

year

statute

on

August 13, 2008,

never

October

26,

USERRA

2016.

claim

was

Accordingly,

because

months later.

the

of

a

USERRA

here the
on

the

this court concludes

limitations

timely

which

VBIA's

Relying

USERRA claim,

(2)

upon

Rather,

effect.

The

statute

presented with

expired

alive when VBIA was enacted two

Plaintiffs'

of

claims

year

revived

which clarified Baldwin,

initially governed the Plaintiffs'

run

took

VBIA's

limitations.

USERRA

claim that expired prior to VBIA's enactment.
USERRA

after

filed

in

Plaintiffs'

period

that

which began to

the

claim

was

Therefore,

the

this

court

USERRA

on

action

against COMtek may PROCEED.
III.

The

by

court,

COMtek,

thereto,

and

having examined the

having

made

^

objection to the

novo

findings

R&R filed

with

respect

does hereby SUSTAIN the objection with respect to the

Puerto Rico labor law claim.
law claim is DISMISSED for

relief may be granted.
to

CONCLUSION

Dismiss

the

Accordingly,

failure

Further,

Plaintiffs'

to

the Puerto Rico labor

state a

claim upon which

the court DENIES COMtek's Motion

Puerto

20

Rico

tort

law

claim

for

failure

to

state

a

claim

Additionally,

the

REJECTS

findings

the

court,

upon
upon

set

sua

PART

and

and

DENIES

may
IN

proceed.
PART

relief

sponte

forth

timeliness of the USERRA claim,

time-barred

which

in

may

clear

the

R&R

and FINDS that

Accordingly,

COMtek's

Motion

the
to

be

granted.

error

review,

regarding

the

the claim is not

court

Dismiss.

GRANTS
The

IN

case

will go forward on the USERRA and Puerto Rico tort law claims.

The

Clerk

is

DIRECTED

to

send

a

copy

of

this

Opinion to counsel for the parties.
IT

IS

SO ORDERED.

/S/

Rebecca Beach Smith
REBECCA BEi
CHIEF

February

'

^018

21

JUDGE

ITH

Memorandum