Del Pilar Salgado v. Abbott Laboratories, 06-1465 (DRD).

Decision Date23 October 2007
Docket NumberNo. 06-1465 (DRD).,06-1465 (DRD).
PartiesJannette E. DEL PILAR SALGADO, Plaintiff v. ABBOTT LABORATORIES, et als., Defendant.
CourtU.S. District Court — District of Puerto Rico

Luis E. Pabon-Roca Clarisa Sola-Gomez, Faccio & Pabon Roca, San Juan, PR, for Plaintiff.

Eileen Marie Garcia-Wirshing, Jose F. Benitez-Mier, Jorge L. Capo-Matos, O'Neill & Borges, San Juan, PR, Luis A. Gonzalez-Perez, L.A. Gonzalez Law Office P.A., Orlando, FL, for Defendants.

AMENDED OPINION AND ORDER NUNC PRO TUNC

DANIEL R. DOMINGUEZ, District Judge.

The instant case arises out of Plaintiff, Jannette E. Del Pilar's claims against the Defendants, Abbott Laboratories and Cesar Ruiz, his wife and the Conjugal Partnership comprised by them, for employment discrimination and retaliation based on sex and political affiliation under Title VII of the Civil Rights Act, 42 U.S.C.A. §§ 2000e-2000e-15, Puerto Rico's Law No. 100 of June 30, 1959, P.R. Laws Ann., tit. 29, §§ 146-151 ("Law 100"), Law No. 69 of July 6, 1985, P.R. Laws Ann., tit. 29, §§ 1321-1341 ("Law 69"), Law No. 115 of December 20, 1991, P.R. Laws Ann., tit. 29, §§ 194-194(b) ("Law 115"), and Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann., tit. 31, § 5141, 5142.

Pending before the Court is co-defendants', Motions for Summary Judgment (Docket Nos. 36 and 39), and Plaintiff's, Joint Memorandum of Law in Opposition to Cesar Ruiz, Mariana Perez Romero and the Conjugal Partnership's Motion for Summary Judgment and Memorandum of Authorities and Abbott's Motion for Summary Judgment and Memorandum of Law in Support thereof (Docket No. 50). On April 9, 2007 the Court referred the pending motions to Magistrate Judge Marcos E. Lopez (Docket No. 66) and on September 11, 2007, Magistrate Judge Lopez, entered a Report and Recommendation (Docket No. 75). The Magistrate Judge recommended that both Defendants' Motions for Summary Judgment be GRANTED. Consequently, on September 18, 2007, co-defendant Abbott Laboratories filed a Partial Objection to Report and Recommendation (Docket No. 80) and on September 21, 2007, Plaintiff filed its objections to the Magistrate Judge's Report and Recommendation (Docket No. 81).

After reviewing all of the pending motions and reviewing de novo the portions of the Magistrate Judge's Report and Recommendation to which the Parties have expressed objections, the Court agrees in toto, with the findings and recommendations made by Magistrate Judge Marcos E. Lopez. The Court finds that after taking into consideration all of Plaintiffs and Defendant's objections, the Court has reached the same conclusions as those reached by the Magistrate Judge in his Report and Recommendation. For the reasons stated below, the Court ACCEPTS and ADOPTS by reference, the Magistrate's Report and Recommendation (Docket No. 21), to the instant Order. Consequently, the Defendants' Motions for Summary Judgment (Docket No. 36 and 39) are hereby GRANTED.

I. STANDARD OF REVIEW

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); FED. R.CIV.P. 72(b); Rule 72(a), Local Rules, District of Puerto Rico. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the Magistrate's report and recommendation by filing its objections within ten (10) days after being served a copy thereof. See Local Rule 72(d); FED.R.CIV.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1) (1993), in pertinent part, provides that:

Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

(Emphasis ours),

If no objections are filed against a Magistrate Judge's Report and Recommendation, the Court, in order to accept the unopposed R & R, needs only satisfy itself by ascertaining that there is no "plain error" on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir,. 1996)(en banc)(extending the deferential "plain error" standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir., 1982)(en banc)(appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R., 2001)("Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous")(adopting the Advisory Committee note regarding FED.R.CIV.P. 72(b)); Garcia v. INS., 733 F.Supp. 1554, 1555 (M.D.Pa., 1990)("when no objections are filed, the district court need only review the record for plain error").

"Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985)(emphasis ours). Moreover, "failure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objections are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir., 1992). See also Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir. 2000); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994)(holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that "[o]bjection to a magistrate's report preserves only those objections that are specified"); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir., 1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"). See also United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

In the instant case both parties have timely lodged objections, hence our standard of review is de novo as to those portions objected. 28 U.S.C. 636(b)(1).

II. Summary Judgment Standard

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Pursuant to the mandate of the language of the rule, the moving party bears the two-fold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997). After the moving party has satisfied this burden, the burden shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact." Cortes-Irizarry v. Corporation Insular, 111 F.3d 184, 187 (1st Cir.1997). A fact will be deemed "material" if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a "genuine" or "trial worthy" issue as to such a "material fact," "if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Id.

The non-movant must affirmatively show that "sufficient evidence supporting the claimed factual dispute [exists] to require a jury or judge to resolve the parties' differing versions of truth at trial." First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968), reh'g denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968). The non-movant cannot rest upon mere allegations or denial of the pleadings. Fed.R.Civ.P. 56(e). Local Rule 56 for the District of Puerto Rico, clearly states that if a party does not oppose a motion for summary judgment "[a]ll material facts set forth in the statement required to be served by the moving party shall be deemed to be admitted." Local Rule 56. This does not mean that summary judgment will be granted automatically, just because the defendant failed to file an opposition. Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir.1990). "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P.56(e); see also NEPSI Inc. v. Town of Houlton, 283 F.3d 1, 7-8 (1st Cir.2002)(Emphasis added). Although summary judgment is not granted automatically "the non-moving party does waive the right to object to the material facts set forth by the movant." Feliciano Rivera v. Medical & Geriatric Admin. Serv., 254 F.Supp.2d 237, 239 (D.P.R.2003). However, notwithstanding that there is no opposition to a summary judgement, the Court must entertain the motion on the merits and may not grant the same as a sanction even if there is no opposition on file. De La Vega v. San Juan Star, 377 F.3d 111(1st Cir.2004).

At all times during the consideration, of a motion for summary judgment the Court must examine the entire record "in the light most flattering to the non-movant and indulge all reasonable inferences in the party's favor." Maldonado-Denis v. Castillo-Rodriguez...

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