An-Port, Inc. v. MBR Industries, Inc.

• Decision Date: 11 September 1991
• Docket Number: Civ. No. 91-1050 (JP).
• Citation: 772 F. Supp. 1301
• Parties: AN-PORT, INC., Plaintiff, v. MBR INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

772 F. Supp. 1301

AN-PORT, INC., Plaintiff, v. MBR INDUSTRIES, INC., Defendant.

Civ. No. 91-1050 (JP).

United States District Court, D. Puerto Rico.

September 11, 1991.

COPYRIGHT MATERIAL OMITTED

Fernando L. Gallardo, Woods & Woods, Hato Rey, P.R., for plaintiff.

Pedro J. Santa Sánchez, O'Neill & Borges, Hato Rey, P.R., for defendant.

OPINION AND ORDER

PIERAS, District Judge.

This is an action for damages predicated upon the Puerto Rico Dealer's Act, Law 75 of June 24, 1964, as amended 10 L.P.R.A. sec. 278 et seq. ("Law 75") resulting from the alleged wrongful termination of an alleged dealership agreement between plaintiff, An-Port, Inc. ("An-Port"), and defendant, MBR Industries, Inc. ("MBR"). Now pending before the Court are MBR's Motion for Summary Judgment filed on August 12, 1991 and MBR's Motion to Dismiss Complaint filed on July 19, 1991. An-Port failed to oppose the Motion For Summary Judgment and tardily opposed the Motion to Dismiss Complaint.

For the reasons set forth in this Opinion and Order, MBR's Motion for Summary Judgment is hereby granted.¹

This Court's decision requires a two-step analysis. First, we must set forth the interplay of the procedural mechanisms establishing the undisputed facts and then we must determine if in light of those admitted facts, MBR is entitled to summary judgment as a matter of law. We start with the procedural history of the case.

I. PROCEDURAL HISTORY

An-Port filed its complaint on January 10, 1991. MBR was served personally in Miami, Florida on February 22, 1991. Having obtained extensions of time to plead, MBR timely filed its answer to the complaint on April 15, 1991.

Shortly thereafter, the parties exchanged interrogatories. On April 24, 1991 An-Port served MBR with its set of interrogatories. On May 8, 1991, MBR served An-Port with its First Set of Interrogatories, Requests for Admissions and for Production of Documents.

The Initial Scheduling Conference ("ISC") was held on May 13, 1991. On May 16, 1991 this Court issued its Initial Scheduling Conference Report ("ISC Report") outlining the stipulated and controverted facts, the legal issues of the case, the documentary evidence of the parties, the witnesses for each side and the discovery schedule.

The discovery schedule contained in the ISC Report established the following pertinent deadlines:

a. All outstanding interrogatories to be answered by June 30, 1991.

b. An-Port had to notify MBR of its expert witness by June 30, 1991.

c. MBR had to notify its expert witnesses by July 31, 1991 d. All dispositive motions had to be filed no later than August 12, 1991.

e. An-Port had until August 30 to depose MBR's expert.

f. Discovery was to conclude on August 30, 1991.

On May 21 and May 30, 1991, respectively, MBR served upon An-Port its Second and Third Sets of Interrogatories, Request for Admissions and for Production of Documents. MBR served upon An-Port its Answers to An-Port's interrogatories within thirty (30) days of their receipt. An-Port, on the other hand, moved for an extension of time to answer MBR's three outstanding interrogatories on June 17, 1991.

At the time that An-Port requested the extension of time, An-Port had already defaulted in its obligation to respond to MBR's First Set of Interrogatories, Request for Admissions and Request for Production of Documents propounded on May 8, 1991, which had become due on June 8, 1991. On June 24, 1991 this Court issued a clear, unequivocal and unambiguous Order instructing An-Port to serve its answers to MBR's three outstanding interrogatories on or before July 7, 1991. In granting the extension, this Court advised An-Port in no uncertain terms that "you are the plaintiff and created the complaint and should know all the facts." (Emphasis supplied).

When An-Port failed to answer the three outstanding interrogatories on July 7, 1991, MBR filed a Motion Advising Court of the Facts which Have Been Admitted by Plaintiff ("Motion on Admitted Facts"). MBR also filed on July 12, 1991 a Motion Requesting the Court to Preclude Plaintiff from Utilizing Experts at Trial for Its Failure to Comply with the June 30, 1991 deadline set to notify its expert witness for trial ("Motion to Preclude"). An-Port did not oppose either motion.

In light of the continuing lack of compliance with the ISC Report and our Order of June 24, 1991, MBR filed the Motion to Dismiss Complaint. We subsequently granted MBR's Motion to Preclude, barring An-Port from naming and utilizing an expert witness at trial. On the same date, July 23, 1991, we also granted MBR's Motion of Admitted Facts, thereby establishing as admitted all the requests for admissions made by MBR which An-Port had failed to answer.

On August 12, 1991 MBR filed the Motion for Summary Judgment based upon the facts voluntarily admitted by An-Port at the ISC and those conclusively established by our Order of July 23, 1991. The undisputed facts were also set forth in an affidavit subscribed by Mr. Bernard Pomeranc, President of MBR (the "affidavit") and in the Statement of Material Facts as to Which There is No Genuine Issue to be Tried (the "Statement of Material Facts"), both filed with the Motion for Summary Judgment pursuant to Rule 311.12 of the Local Rules of this Court.

As previously noted, An-Port has not filed an Opposition to MBR's Motion for Summary Judgment and has not controverted Mr. Pomeranc's affidavit. In fact, An-Port did not move for reconsideration of our July 23, 1991 Order admitting the requests set forth by MBR. Instead, on August 13, 1991, An-Port tardily served upon MBR its answers to MBR's three set of interrogatories ("the Answers"). The Answers arrived over one hundred (100) days after An-Port was served with MBR's First Set of Interrogatories, Request for Admissions and for Production of Documents, over seventy (70) days after service of MBR's Third Set of Interrogatories, Request for Admissions and for Production of Documents and more than thirty (30) days after the July 7, 1991 deadline. In addition, the Answers were served barely two (2) weeks short of the August 30, 1991 discovery deadline imposed by the ISC Report.

On August 20, 1991, An-Port filed its Opposition to MBR's Motion to Dismiss Complaint. On August 22, 1991 MBR filed a Motion Submitting Defendant's Position with Respect to Discovery ("Motion Submitting") apprising this Court of An-Port's non-compliance with the discovery deadline and reserving its right to conduct discovery beyond the Court-mandated deadline of August 30, 1991. Finally, on August 27, 1991 MBR moved this Court for leave to reply to An-Port's Opposition to MBR's Motion to Dismiss and proceeded to tender its reply therewith.

II. THE ADMITTED FACTS

Before setting forth the admitted and undisputed facts of the case, we turn to the procedural mechanism which conclusively established MBR's requests as admitted.

A. Rule 36(a)

Fed.R.Civ.P. 36(a) provides that each matter of which an admission is requested is "... admitted unless, within thirty (30) days of service of the requests or within such shorter or longer time as the Court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter signed by the party or the party's attorney."

The facts admitted either by the Court or by the parties themselves constitute the law of the case for all legal purposes. Jordan v. Kelly, 728 F.2d 1 (1st Cir.1984); Brooks Village North Associates v. General Electric Co., 686 F.2d 66 (1st Cir.1982); Rainbolt v. Johnson, 669 F.2d 767 (D.C.Cir.1981); Chart House Inc. v. Bornstein, 636 F.2d 9 (1st Cir.1980); Russell v. Commissioner of Patents and Trademarks, 695 F.Supp. 572 (D.D.C.1988); Vermont v. Staco, Inc., 684 F.Supp. 822 (D.Vt.1988). These facts can be, and usually are, the basis for summary judgment pursuant to Fed.R.Civ.P. 56. Fiberglass, Inc. v. Techni-Glass Industries, Inc., 804 F.2d 1577 (11th Cir.1986); Milene Music, Inc. v. v. Gotauco, 551 F.Supp. 1288 (D.R.I.1982); United States v. Kenealy, 646 F.2d 699 (1st Cir.1978), cert. denied 454 U.S. 941, 102 S.Ct. 478, 70 L.Ed.2d 250 (1981); Luick v. Graybar Elec. Co., Inc., 473 F.2d 1360 (8th Cir.1973); Williams v. Krieger, 61 F.R.D. 142 (1973). Moosman v. Blitz, Inc., 358 F.2d 686, 688 (2d Cir. 1966); O'Campo v. Hardisty, 262 F.2d 621 (9th Cir.1958); Mahaney v. Doering, 260 F.Supp. 1006 (D.Penn.1966); Jackson v. Kotzebue Oil Sales, 17 F.R.D. 204 (D.Ak. 1955); Creedon v. Arielly, 8 F.R.D. 265 (D.C.N.Y.1948).

As we established earlier, MBR served An-Port with its First, Second and Third Sets of Interrogatories, Request for Admissions and Request for Production of Documents on May 8, May 21 and May 30, 1991 respectively. Pursuant to Fed.R.Civ.P. 36(a), An-Port had to notify the Answers on June 7, 1991, June 20 and June 30, 1991 respectively, and definitely none should be served after June 30, 1991, the deadline set by the ISC Report.

When An-Port filed its motion for an extension of time to answer the three sets of interrogatories on June 17, 1991, it had already defaulted on its duty to answer the first request for admissions, and thus, the facts included therein had already been deemed admitted by virtue of Rule 36(a). An-Port's failure to respond to the second and third requests for admissions within the enlarged period given, up to July 7, 1991, similarly resulted in the automatic admission of all the requests contained therein. Thus, our Order of July 23, 1991 granting MBR's Motion of Admitted Facts conclusively established the admitted facts as the law of the case and they can be now utilized to support the summary judgment ordered herein.

B. Fed.R.Civ.P. 37(b) Sanctions

In addition to the provisions of Rule 36(a), we are empowered to order that the matters regarding the request for admissions be established and to preclude An-Port from opposing the matters, all by virtue of Rule 37(b).

Rule 37(b)(2)(A) and (B...