LA POLICIA MUNICIAPAL DE CAROLINA LLENA DE DELINCUENTES.
Por Redacción DE Radio El faropr.com
Aquí
esta el caso contra la policía Municipal de Carolina por violación de derechos
civiles, esta demanda fue por una paliza que le propinaron en crimen de odio varios
agentes Municipales al Dominicano Yonatta Crispin Tavera en el Estadio Roberto
Clemente, en la Serie del Caribe, incluyendo al teniente Jhonny Cruz González,
Rubén Moyeno Cintron, Luis Díaz Ruiz y otros usaron a Juan Carlos Cana para
mentir ante al gran Jurado, y eso no caduca nunca mi hermano y uno de los
abogados de estos facinerosos fue el Lcdo. Lorenzo Palomares Starbuck, quien
nos ha tratado de amedrentar los
personeros del crimen no merecen seguir en la Policía Municipal de Carolina
lean como se comportan, se esconden para no se emplazados, mienten
descaradamente y ofrecen y después no cumplen eso se lo hicieron a Cana,
estamos investigando ya que el Lcdo. Emilio Soleé de la Paz quien es mi amigo
personal hace muchos anos ya verán lo que acontece evalúenlo ustedes, es en
ingles como lo publica el Tribunal, son bribones y violadores de las leyes
y conspiran para violarla junto a
Abogados inescrupulosos, se esconden para no ser emplazados y violentan ordenes
del Tribuna, que curitas nos representan que seguridad hay en Carolina,
Yonatta
Crispin-Taveras v. Municipality
of Carolina
1st Cir.
05-25-2011
Nos. 09-2625, 09-2626
05-25-2011
Nos. 09-2625, 09-2626
SILER, Circuit Judge.
Plaintiff-Appellee Yonatta Crispin-Taveras ("Crispin") brought a
civil rights action against Defendants-Appellants Municipality of Carolina (the
"Municipality") and various Municipality police officers. The
district court defaulted the defendants for discovery violations. After a jury
trial on damages, the district court entered a judgment in favor of Crispin in
the amount of $75,000. The Municipality and the individual officers now appeal,
challenging the default sanction, the admission of psychological treatment
evidence, the jury instructions, and the sufficiency of service of process. For
the reasons stated below, we affirm.
I. BACKGROUND
A. Factual Background
During a baseball game between the
Puerto Rico national team and the Dominican
Republic national team held at the Roberto Clemente
Stadium in Carolina , Puerto
Rico , in 2007, a spectator known as "Oscar" was
celebrating in the aisles with a Dominican flag. The Carolina Municipal Police
Department intervened in order to eject Oscar from the stadium.
Crispin, a U.S. Marine from the Dominican Republic
Both sides faced criminal charges.
Crispin was charged with aggravated assault and destruction of property, but
the charges were dismissed. Three of the officers, Lieutenant John
Cruz-Gonzalez ("Cruz"), Sergeant Luis Diaz-Ruiz ("Diaz"),
and Officer Karimar Peraza-Delgado ("Peraza") were indicted on
federal civil rights violations, but were acquitted.
B. Procedural Background
On October 25, 2007, Crispin filed a
civil rights action in the District of Puerto Rico against the Municipality,
the mayor of the Municipality, an association of Municipality police officers,
two Commonwealth
of Puerto Rico
1. Service of Process
On April 3, 2008, Moyeno filed a motion
to dismiss, and Cruz, Diaz, and Peraza filed a motion to join it. They alleged
they were served with the summons and complaint on February 28 and 29, 2008,
which was more than 120 days after the filing of the complaint in violation of
Federal Rule of Civil Procedure 4(m). Crispin responded that dismissal was not
required because there was no prejudice and Rule 4(m) allows the district court
to direct service by a specified time, which was now unnecessary because the
defendants were served. The district court denied the motions.
The Municipality filed an answer on
September 4, 2008, and the individual defendants filed an answer on September
26, 2008. The individual defendants later filed a motion to withdraw their
answer because they alleged that Cruz, Diaz, and Peraza were included in the
answer by "human error." The district court granted the motion and
allowed the withdrawal of their answer.
In February 2009, Peraza and Cruz filed
a motion to dismiss for improper service. They alleged that Crispin failed to
effectuate personal service and failed to do so within the time afforded by
Rule 4(m). In opposition, Crispin argued that the defendants did not challenge
the method of service in their April 2008 motion to dismiss. He further argued
that service was properly executed upon an attorney in the Municipality's legal
department. The district court denied the motion.
2. Discovery Disputes
In December 2008, Crispin filed a
motion to compel, alleging that the individual defendants had failed to produce
Rule 26 disclosures or answer Crispin's interrogatories or requests for
production. The individual defendants opposed the motion, arguing that they
were not aware of any unproduced documents. The district court denied Crispin's
motion without prejudice.
After a stay of the case during the
pendency of the federal criminal proceedings, the district court conducted a
scheduling conference. See Fed. R. Civ. P. 16. During the conference, the
district court ordered the defendants to answer all pending written discovery
requests within ten days and ordered discovery to be completed by June 30,
2009. Moyeno sent his Rule 26 initial disclosures to Crispin the day after the
conference.
On June 11, 2009, Crispin filed a
motion for sanctions against the Municipality, Cruz, Diaz, and Peraza, alleging
they had failed to provide Rule 26 disclosures or respond to discovery requests.
The district court conducted a telephone conference on June 24, 2009, and
decided to hold the motion for sanctions in abeyance. Following the conference,
the court issued the following ruling:
Rule 26 Meeting Report due by 7/3/2009.
I have noted the content of [Crispin's motion for sanctions] and make reference
to the directions given by me during the telephone conference held today. If
any of the mentioned parties have failed to fully comply with Rule 26
disclosures, then their last clear chance for compliance is the date set
herein. Otherwise, sanctions will be imposed including striking evidence not
included in Rule 26 disclosures. Be guided accordingly.
On June 24, 2009, Crispin moved for
entry of default against Cruz, Diaz, and Peraza for their failure to file a
responsive pleading.
Crispin also filed a motion on June 30,
2009, seeking additional time for his expert report because Cruz, Diaz, and
Peraza never answered his interrogatories or requests for production of
documents. Another reason he sought additional time was because the
Municipality allegedly failed to comply with its continuing Rule 34
obligations. See Fed. R. Civ. P. 26 & 34. During the depositions of the
officers, Crispin learned that the Municipality's Internal Affairs Department
was conducting an investigation. Crispin alleged that, besides a two-page sworn
statement by Diaz, the Municipality did not produce any documents arising out
of this investigation. The district court gave Crispin an extension to produce
the expert report.
On July 4, 2009, Crispin filed a motion
"in compliance with" the district court's order holding Crispin's
June 11, 2009 motion for sanctions in abeyance. Crispin requested numerous
sanctions, including the imposition of a default judgment.
The defendants never filed an
opposition to Crispin's June 11, 2009 motion for sanctions. On July 8, 2009,
the district court found the Municipality, Cruz, Diaz, and Peraza in default,
concluding:
Having examined Defendants' track
record of non-compliance with discovery obligations, and considering the
averments contained in [Crispin's motions], the court ORDERS as follows:
The Municipality filed a motion for
reconsideration. It alleged it sent initial Rule 26 disclosures and produced
all documents in its possession. In support, it attached a list of the exhibits
it produced and a copy of its initial Rule 26 disclosures. Cruz, Diaz, and
Peraza joined and supplemented the Municipality's motion. They alleged that their
default was not willful because their DOJ attorney withdrew, leaving them
without counsel and unable to respond to the motion for sanctions.
Crispin filed a "second motion for
sanctions" against Moyeno, Puerto Rico Police Officers Vanessa Carmona and
Alfredo Rivera-Suarez, and Carolina Police Commander, Colonel Carlos Haddock.
He alleged they had not complied with outstanding discovery requests or
produced Rule 26 disclosures. Moyeno never filed a response.
The district court ordered Crispin's
counsel to file a list of outstanding discovery owed to Crispin by each
defendant, and Crispin did so two days later.
The district court then granted
Crispin's second motion for sanctions as to the other defendants, including
Moyeno. It struck their pleadings and entered a default for their failure to
provide timely discovery. The district court also denied the Municipality's
motion for reconsideration of the default sanction.
3. Trial
A jury trial on damages commenced in
October 2009. Before and during trial, the Municipality objected to the
introduction of evidence concerning Crispin's psychological treatment on the
grounds that Crispin failed to provide all of his medical records during
discovery. Despite Crispin's failure to provide all of his medical records, the
Municipality was able to acquire Crispin's medical records by subpoena.
The district court did not allow
Crispin to present any evidence that he did not provide to the Municipality. On
the other hand, the district court permitted the Municipality to use all of the
medical records that it had acquired on its own by subpoena.
The Municipality proposed a lengthy
jury instruction on causation, but the district court declined to give the
proposed instruction. The jury rendered a verdict in favor of Crispin, and against
the Municipality in the amount of $35,000, Moyeno in the amount of $10,000,
Cruz in the amount of $10,000, Peraza in the amount of $10,000, and Diaz in the
amount of $10,000.*fn2 This appeal followed.
II. ANALYSIS
A. Service of Process
The individual defendants argue that
they were never properly served with process under Federal Rules of Civil
Procedure 4(e) and (m) and, as a result, the judgment should be reversed. The
district court's decision regarding dismissal for insufficient service of
process is reviewed for abuse of discretion. See Perez-Sanchez v. Pub. Bldg.
Auth., 531 F.3d 104, 106 (1st Cir. 2008).
Federal Rule of Civil Procedure 4(m),
which governs the timing of service, provides,If a defendant is not served
within 120 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.
Federal Rule of Civil Procedure 12
allows a party to file a motion to dismiss for insufficient service of process.
This motion "must be made before pleading if a responsive pleading is
allowed." Fed. R. Civ. P. 12(b).
"[A] party that makes a motion
under [Rule 12] must not make another motion under this rule raising a defense
or objection that was available to the party but omitted from its earlier
motion." Fed. R. Civ. P. 12(g)(2). Omitting a defense under these
circumstances results in waiver. Fed. R. Civ. P. 12(h)(1)(A); Chute v. Walker
Moyeno filed a motion to dismiss for
improper service under Rule 4(m) on April 3, 2008, and Cruz, Diaz, and Peraza
filed a motion to join Moyeno's motion on April 14, 2008. These motions were
filed before their responsive pleadings and thus were timely.
In their motions, the individual
defendants challenged the timing of the service of process. Crispin's complaint
was filed on October 25, 2007, and therefore service of process was due on or
before February 22, 2008. See Fed. R. Civ. P. 4(m). The individual defendants
were not served until February 28 and 29, 2008. Thus, the individual defendants
were served over 120 days after the filing of the complaint in violation of
Rule 4(m).
The problem for the individual
defendants is that, when they filed these initial motions, they admitted that
they were served and challenged only the timing of the service.*fn3 (DE 8 ("Ruben Mo[y]eno Cintron .
. . w[as] served with summons on February 29, 2008.")); (DE 9 ("On
February 28, 2008, the appearing defendants, [Cruz, Diaz, and Peraza], were
served with summons and a copy of the Amended Complaint . . ..")). A
district court is not required to dismiss a defendant when service is not made
within the 120-day deadline. See Fed. R. Civ. P. 4(m). The district court also
has the option to "order that service be made within a specified
time." Id.
The individual defendants' later motion
challenging the method of service does not help them. This motion was filed on
February 19, 2009, almost a year after the alleged service of process. By this
time, it was too late. The individual defendants had already sought dismissal
for improper service in April 2008. They could have objected to the method of
service at that time. Their failure to do so means their objection to the
method of service was waived. See Fed. R. Civ. P. 12(g)(2); Fed. R. Civ. P.
12(h)(1)(A); SEC v. Beisinger Indus. Corp., 552 F.2d 15, 20 (1st Cir. 1977)
(holding that insufficient service defense was waived where the defendants'
initial motion to dismiss alleged only that service was impossible, not that
service was improperly effectuated under Rule 4).
B. Default
Appellants argue the record does not
support the district court's imposition of a default judgment. The district
court's imposition of a default judgment as a sanction is reviewed for abuse of
discretion. Remexcel Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 51
(1st Cir. 2009).
Federal Rule of Civil Procedure 37(b)
gives the district court a "veritable arsenal of sanctions" for
failure to comply with discovery orders, including designating facts as
established, striking pleadings, or rendering a default judgment. Malot v. Dorado Beach
When faced with a motion for sanctions,
the non-moving party must file an opposition. District of Puerto Rico Local
Rule 7(b) states, "Unless within fourteen (14) days after the service of a
motion the opposing party files a written objection to the motion,
incorporating a memorandum of law, the opposing party shall be deemed to have
waived objection." A party's failure, on account of ignorance or neglect,
to timely oppose a motion in the district court constitutes forfeiture. See
Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 102 (1st Cir. 2003).
The Municipality, Cruz, Diaz, and
Peraza never filed a response to Crispin's June 11, 2009 motion for sanctions.
The district court gave them until June 29, 2009, to file a response to the
motion. Although the district court held the motion in abeyance on June 24,
2009, this did not relieve the parties of their obligation to respond. Indeed,
after the motion was held in abeyance, Crispin continued to file motions
alleging the defendants were not complying with discovery obligations. When the
district court defaulted the Municipality, Cruz, Diaz, and Peraza on July 8,
2009, they had still not responded. It was not until their motion for
reconsideration that the defendants disputed Crispin's allegations. A motion
for reconsideration of a sanction order, however, cannot revive claims that
were forfeited by failing to timely oppose the original motion. See Marks 3
Zet-Ernst Marks GmBh & Co. KG v. Presstek, Inc., 455 F.3d 7, 15 (1st Cir.
2006). Accordingly, the Municipality, Cruz, Diaz, and Peraza forfeited any
objection to Crispin's motion for sanctions.*fn4 See id.
Similarly, Moyeno never responded to
Crispin's July 16, 2009 motion for sanctions and therefore forfeited any
objection to the motion. The district court gave Moyeno until August 3, 2009,
to file a response. When the district court sanctioned Moyeno with default on
August 11, 2009, Moyeno had not filed an opposition.
Because appellants forfeited their
argument by failing to raise it in a timely manner, we review only for plain
error. See Rivera-Torres, 341 F.3d at 102. "We apply the plain error
doctrine 'stringently' in civil cases," Gaydar v. Sociedad Instituto
Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15, 23 (1st Cir. 2003)
(quoting Trull v. Volkswagen of Am., Inc., 320 F.3d 1, 6 (1st Cir. 2002)), and
we are not persuaded that this is "one of those rare occasions when the
standard is met," Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir.
2006).
By not filing responses, the defendants
never informed the district court how they complied with their discovery
obligations. Without any opposition, Crispin's assertions regarding the
inadequacy of the defendants' responses could be credited by the district
court. While default was a harsh sanction, it was brought on by appellants'
persistent failure to comply with the court's discovery orders and was preceded
by the court's "clear advance warning." Goya Foods, Inc. v. Unanue,
233 F.3d 38, 48 (1st Cir. 2000). There was no abuse of discretion--let alone
plain error--in the district court's decision to sanction appellants in this
manner. See Remexcel Managerial Consultants, 583 F.3d at 51.
C. Psychological Testimony
Appellants argue that the district
court should have excluded testimony of Crispin's psychological treatment
because Crispin failed to provide all of his medical records during discovery.
"We review the district court's
decisions to admit or exclude evidence for abuse of discretion." United States
Crispin identified his treating
physicians in his discovery materials, and therefore Rule 37(c)(1) does not
preclude the admission of their testimony. Although Crispin did not provide all
of his medical records during discovery, the admission of the evidence was
harmless to the Municipality because it was able to obtain the records on its
own using a subpoena and the district court did not allow Crispin to use any
records that he failed to provide to it. Accordingly, there was no abuse of
discretion in the admission of evidence regarding Crispin's psychological
treatment.
D. Jury Instruction on Causation
Appellants argue that the district
court's failure to give the Municipality's proposed jury instruction on causation
was reversible error.
"The trial court's refusal to give
a particular instruction constitutes reversible error only if the requested
instruction was (1) correct as a matter of substantive law, (2) not
substantially incorporated into the charge as rendered, and (3) integral to an
important point in the case." White v. N.H. Dep't of Corr., 221 F.3d 254,
263-64 (1st Cir. 2000) (quoting United
States
The Municipality's argument fails at
prong two because the jury was adequately instructed on causation. See id. The
district court explained, "Any award you may enter in this case must be
based on the evidence and must be based on your dispassionate analysis of the
extent of the injuries, if any, sustained by the plaintiff as a result of any
defendant's wrongs, if any." (emphasis added). The district court also
instructed that damages must be found by a preponderance of the evidence and
that "the mere fact that I am discussing the issue of damages doesn't mean
that you have to find damages." These instructions adequately informed the
jury that Crispin must prove the defendants' actions caused the damages and
that damages should not be presumed. Thus, the district court did not err in
refusing to give the Municipality's requested instruction.
AFFIRMED.
Opinion Footnotes
*fn3 Had the individual defendants not
admitted they were served, they might have prevailed because the service was
improper. Crispin attempted to serve the individual defendants by delivering a
copy of the summons and complaint to an attorney in the Municipality's legal
department. This method of service was effective only as to the
official-capacity claims, but it was not effective as to the
individual-capacity claims. See Perez-Sanchez, 531 F.3d at 106.
*fn4 There was at least a forfeiture here
and therefore we will proceed under a forfeiture analysis. Given the local rule
and the knowledge the parties had, they may have actually waived their
objection.
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