Alejandro–Ortiz v. Puerto Rico Elec. Power Auth., Civil No. 10–1320 (FAB).
| Decision Date | 17 January 2012 |
| Docket Number | Civil No. 10–1320 (FAB). |
| Citation | 872 F.Supp.2d 133 |
| Parties | Orlando ALEJANDRO–ORTIZ, et. al., Plaintiffs, v. PUERTO RICO ELECTRIC POWER AUTHORITY, et. al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
OPINION TEXT STARTS HERE
David Efron, David Efron Law Offices, San Juan, PR, Douglas W. Matthews, Toby B. Fullmer, Matthews & Fuller Law Firm, Houston, TX, for Plaintiffs.
Jorge Stefan Molina–Mencia, Velilla & Velilla, Bayamon, PR, Jeannette M. Lopez, Pinto–Lugo, Oliveras & Ortiz, PSC, San Juan, PR, for Defendants.
A district court may refer a pending non-dispositive motions to a magistrate judge for a report and recommendation. See28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Rule 72(c). Any party adversely affected by the report and recommendation may file written objections within fourteen days of being served with the magistrate judge's report. A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191–92 (D.P.R.2005) ( citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). Failure to comply with this rule precludes further review. See Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). In conducting its review, the court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez–Mejias v. General Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) ( citing LaCedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 125–126 (D.R.I.2004)).
On September 29, 2011, the United States magistrate judge issued a Report and Recommendation (R & R) in this case, recommending that defendant PREPA's motion to annul the complaint and dismiss because the plaintiff filed the complaint before the decision of the State Insurance Fund became final be DENIED. (Docket No. 212) Defendant PREPA objected to the R & R on October 2, 2011. (Docket No. 214.) In their opposition to the R & R, PREPA alleges that the magistrate judge “did not make any specific factual finding as to whether the complaint was de facto filed prematurely” and was therefore in violation of local law. Id. In support of its argument, PREPA cites to a Supreme Court of Puerto Rico case in Spanish, with no official translation. The Court will not consider this case or entertain PREPA's arguments regarding interpretation of the relevant statute, because the Court may not consider matters cited in Spanish without an English translation. See Puerto Ricans for Puerto Rico Party v. Dalmau, 544 F.3d 58, 67 (1st Cir.2008).
As the magistrate judge states in the R & R, the Puerto Rico Workmen's Accident Compensation Act, 11 L.P.R.A. § 32, “is not intended to be a tool for the third party to use in an effort to avoid being liable to plaintiff.” (Docket No. 212 at 4.) In addressing this very argument, the First Circuit Court of Appeals has held that the “primary purpose” of the statute “is to give the Manager of the State Insurance Fund out of which [ ] an employee has been compensated the right to be subrogated for the benefit of the Fund to the rights of the employee to such a recovery from a third party....” Waterman Steamship Corporation v. Rodriguez, 290 F.2d 175, 177–178 (1st Cir.1961). The statute “is not intended to provide a shield for a third party tort-feasor....” Id. at 178. Thus, defendant PREPA does not have standing to use this statute to seek dismissal.
Moreover, PREPA has allowed this suit to continue for over a year and half since the date when plaintiff initially filed the complaint, without making any objections on the grounds of prematurity until now.1 As the Waterman court states, “[w]e regard it as immaterial that the suit was not dismissed and reinstituted after that date [on which the decision of the plaintiff's compensation claim became final], since the law does not require such a useless formalism.” Id. at 178. Accordingly, the remedy defendant requests is neither timely nor appropriate.
The Court has made an independent examination of the entire record in this case, including both parties' objections to the R & R, and ADOPTS the magistrate judge's findings and recommendations as the opinion of this Court. Accordingly, defendant's motion for dismissal for premature filing of the complaint is DENIED.
On September 28, 2011, the United States magistrate judge issued a Report and Recommendation (R & R) in this case, recommending that defendant PREPA's motion to dismiss the complaint for lack of diversity be DENIED. (Docket No. 211.) PREPA filed an objection to the R & R on October 3, 2011. (Docket No. 215.) Plaintiffs filed a response on October 6, 2011. (Docket No. 217.) The magistrate judge found that plaintiff provided sufficient evidence to establish that he is domiciled in Texas, thus providing diversity jurisdiction. As the First Circuit Court of Appeals has held, “[f]or the purposes of diversityjurisdiction, citizenship is usually equated with domicile.” Valentin v. Hospital Bella Vista, 254 F.3d 358, 366 (1st Cir.2001) (citing Rodriguez–Diaz v. Sierra–Martinez, 853 F.2d 1027, 1029 (1st Cir.1988)). As a general matter, domicile requires satisfaction of two elements: (1) physical presence in a state and (2) the intent to remain there indefinitely. Valentin, 254 F.3d at 366. The analysis requires a “totality of the evidence” approach, and some of the factors considered in making the determination are the following: “(1) the person's place of voting; (2) the location of the person's real and personal property (such as furniture and motor vehicles); (3) the state issuing the person's drivers license; (4) the state where the person's bank accounts are maintained; (5) club or church membership; and (6) the person's place of employment.” Palermo v. Abrams, 62 F.Supp.2d 408, 410 (D.P.R.1999).
The magistrate judge found that plaintiff established that his domicile was Texas by providing the following information: a copy of a residential lease showing that plaintiff currently rents property in Tomball, Texas; plaintiff's voter registration certificate in Texas; evidence of plaintiff's intent to sell his property in Cidra, Puerto Rico; copies of plaintiff's Texas identification card and his wife's Texas driver's license; evidence of payment of several utilities including a cell phone, gas, water, phone service, and electricity using plaintiff's Texas address; and a sworn affidavit submitted by plaintiff attesting to all those facts. See Docket No. 207. No single factor controls the outcome of the Court's determination of whether diversity exists; rather, the Court must engage in a case-by-case analysis and use a “totality of the evidence” approach. See Palermo, 62 F.Supp.2d 408, 410 (D.P.R.1999). The Court agrees with the magistrate judge's determination that plaintiff has submitted sufficient information to establish that his domicile is Texas, and that diversity jurisdiction in this case is appropriate.
Finally, the magistrate judge further determined, and this Court agrees, that an evidentiary hearing to determine the credibility of plaintiff's assertions is unwarranted because defendant PREPA alleged a sufficient lack of information to determine the domicile of plaintiff, and did not raise any allegations of plaintiff's lack of credibility. See Docket No. 200.
The Court has made an independent examination of the entire record in this case, including both parties' objections to the R & R, and ADOPTS the magistrate judge's findings and recommendations as the opinion of this Court. Accordingly, defendant's motion for dismissal for lack of diversity jurisdiction is DENIED.
On October 13, 2011, defendant PREPA filed a motion under Local Rule 72(d) asking this Court to revisit the Report and Recommendation adopted by this Court, denying defendant's request for summary judgment. (Docket No. 220.) Local Rule 72(d) states, in part, the following:
Any party may object to the magistrate judge's report of proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1) within fourteen (14) days after being served a copy of it. The party shall file with the clerk and serve on all parties written objections with shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection.
A district judge shall make de-novo determination of those portions to which objection is made and may accept, reject or modify, in whole or in part, the findingsor recommendations made by the magistrate judge.
PREPA appears to believe that this local rule may be used by a party to “revisit” a motion that has already been denied by this Court. PREPA cites no legal authority in support of its proposition that such a request can be made “under” Local Rule 72(d), and in fact, there is none. It had its opportunity to present its objections to the magistrate judge's report and recommendation under Rule 72(d), which it did, and the Court was free to “accept, reject or modify” the report and recommendation accordingly. This Court adopted the magistrate judge's report and recommendation in full and denied defendant's motion for summary judgment. PREPA's efforts to re-litigate the summary judgment proceeding is improper, procedurally defective, and a waste of this Court's time.
PREPA also alleges that the magistrate judge has...
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