Cosme-Perez v. Municipality of Juana Diaz

• Decision Date: 30 September 2008
• Docket Number: Civil No. 07-1942 (DRD).
• Citation: 585 F.Supp.2d 229
• Court: U.S. District Court — District of Puerto Rico
• Parties: Higinia COSME-PÉREZ, et al., Plaintiffs, v. MUNICIPALITY OF JUANA DÍAZ; Ramón A. Hernández-Torres, Mrs. Hernández-Torres, and their Conjugal Partnership; Commonwealth of Puerto Rico; John Doe; Richard Doe; and their Respective Insurance Companies, Defendants.

585 F.Supp.2d 229

Higinia COSME-PÉREZ, et al., Plaintiffs, v. MUNICIPALITY OF JUANA DÍAZ; Ramón A. Hernández-Torres, Mrs. Hernández-Torres, and their Conjugal Partnership; Commonwealth of Puerto Rico; John Doe; Richard Doe; and their Respective Insurance Companies, Defendants.

Civil No. 07-1942 (DRD).

United States District Court, D. Puerto Rico.

September 30, 2008.

COPYRIGHT MATERIAL OMITTED

Monica A. Sanchez-Rivera, Departamento de Justicia, Valerie Maldonado-Rivera, Department of Justice, Commonwealth of Puerto Rico, San Juan, PR, Charles E. Vilaro-Valderrabano, Jose Antonio Tulla Law Office, Monica A. Sanchez-Rivera, Departamento de Justicia, San Juan, PR, Johanna M. Emmanuelli-Huertas, Alvarez Law Offices, Ponce, PR, for Defendants.

Juan Ramon Rodriguez-Lopez, Rodriguez-Lopez Law Office, Ponce, PR, for Plaintiff.

ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court are: (a) Motion To Dismiss Pursuant To Rule 12(b)(6) Of the Federal Rules Of Civil Procedure filed by the Commonwealth of Puerto Rico and the Hon. Ramón A. Hernández Torres ("Mayor Hernández"), in his personal and official capacity, as Mayor of the Municipality of Juana Diaz (Docket No. 8); (b) Motion To Dismiss filed by the Municipality of Juana Diaz ("Municipality") (Docket No. 11); and (c) plaintiffs' Response To Motion To Dismiss (Docket No. 17). The Court notes that plaintiffs moved for voluntary dismissal as to the Commonwealth of Puerto Rico (Docket No. 16), under Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").

This matter was referred to the United States Magistrate Judge Vélez-Rive ("Magistrate Judge") for report and recommendation on (Docket entries No. 22 and 23).

On July 2, 2008, the Magistrate Judge's Report and Recommendation was entered (Docket No. 24). In the Report and Recommendation, the Magistrate recommended that defendants' motion to dismiss be granted in part and denied in part. The Magistrate Judge allowed the defendants ten (10) days to object to the Report and Recommendation, that is, until July 17, 2008. The record shows that the Municipality of Juana Diaz timely objected to the Report and Recommendation (Docket No. 25), as well as Mayor Hernández' request to join the objections filed by the Municipality (Docket No. 26). The Court notes that plaintiffs did not object to the Report and Recommendation. For the reasons set forth below, the Report and Recommendation issued by the Magistrate Judge is adopted in toto, albeit on alternate grounds, as to the standard of a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").

Factual Background

Plaintiff Higinia Cosme-Pérez ("Cosme") was sixty-nine years old at the time the instant complaint was filed on October 4, 2007. See Complaint, Docket No. 1, ¶ 11. Cosme worked with the Municipality's Head Start Program from September 12, 2003 through January 12, 2007, as a full time employee.¹ During the year 2006, Cosme's health was "suffering incapacitating health condition that required medical treatment including surgery." See Complaint, Docket No. 1, ¶ 12. Cosme was on medical leave from August 10, 2006 until January 12, 2007. See Complaint, Docket No. 1, ¶ 12. During this time, Cosme alleges that she was constantly harassed and discriminated against by Mayor Hernández, and other personnel, in the "presence of third parties." See Complaint, Docket No. 1, ¶ 13. Cosme claims that this situation moved her to request a sick leave without pay. Instead, she was transferred from Coamo to Juana Diaz, only to find that another person was "doing her assigned duties." See Complaint, Docket No. 1, ¶ 15. Cosme felt "forced to resign" and requested leave of one-year without pay upon tendering her resignation. See Complaint, Docket No. 1, ¶ 16. Mayor Hernández met with Cosme on January 10, 2007, and the Mayor "told plaintiff not to worry that he already told Carlitos (Carlos Colon, defendant's special aid) and told her to see Carlitos." See Complaint, Docket No. 1, ¶ 16. Subsequently, "Plaintiff went to Carlos Colon's office where he told her that the Mayor has explained her request and he will [sic] take care of the approval of the one-year leave without pay." See Complaint, Docket No. 1, ¶ 16. However, "the one-year leave without pay was never granted." See Complaint, Docket No. 1, ¶ 16.

Cosme resigned on January 12, 2007, only two (2) days after her meetings with Mayor Hernández and with Carlos Colón. See Complaint, Docket No. 1, ¶ 11. Cosme filed a complaint with the United States Equal Employment Commission ("EEOC") on April 9, 2007, and the Notice of Right to Sue was issued on July 9, 2007. See Complaint, Docket No. 1, ¶ 19. The instant action ensued on October 4, 2007.

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); Fed.R.Civ.P. 72(b); Local Civil Rule 72(a) of the Local Rules of the United States District Court for the District of Puerto Rico ("L.Civ. R."). 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 Fed.R.Civ.P. 72(b) and L.Civ.R. 72(d). 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).

"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). 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).

The Court, in order to accept the unopposed report and recommendation, 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. I.N.S., 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").

The standard for an objected report and recommendation is de novo review as to those issues that are properly objected. Borden v. Secretary of H.H.S., 836 F.2d at 6.

Hence, the Court will review de novo the specific objections of the Municipality and Mayor Hernández in his official and personal capacities, and will review the Magistrate Judge's findings pertaining to plaintiffs, under the plain error standard, as the Report and Recommendation stands unopposed by plaintiffs. Thus, the Court, in order to accept the unopposed Report and Recommendation, 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. I.N.S., 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").

The objections filed by the Municipality and joined by Mayor Hernández are: (a) the Magistrate Judge's use of an incorrect motion to dismiss standard under Rule 12(b)(6),...