Fox v. Palmas Del Mar Properties, Inc., Civil No. 07-2238 (DRD).

• Decision Date: 31 March 2009
• Docket Number: Civil No. 07-2238 (DRD).
• Citation: 620 F.Supp.2d 250
• Parties: Manny FOX, Cinda Fox, and their Conjugal Partnership, Plaintiffs, v. PALMAS DEL MAR PROPERTIES, INC., Palmas Del Mar Homeowners Association, Inc., Defendants.
• Court: U.S. District Court — District of Puerto Rico

620 F.Supp.2d 250

Manny FOX, Cinda Fox, and their Conjugal Partnership, Plaintiffs, v. PALMAS DEL MAR PROPERTIES, INC., Palmas Del Mar Homeowners Association, Inc., Defendants.

Civil No. 07-2238 (DRD).

United States District Court, D. Puerto Rico.

March 31, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Francisco R. Moya-Huff, Law Firm of Francisco R. Hoya Huff, San Juan, PR, for Jorge R. Acosta.

Fausto D. Godreau-Zayas, Latimer, Biaggi, Rachid & Godreau, San Juan, PR, for Maxon Engineering Services Inc.

Monsita Lecaroz-Arribas, U.S. Trustee Office, San Juan, PR, for US Trustee, Edificio Ochoa.

Rafael A. Gonzalez-Valiente, Latimer, Biaggi, Rachid & Godreau, San Juan, PR, for Noreen Wiscovitch-Rentas.

Eileen J. Barresi-Ramos, Barresi Law Office, Trujillo Alto, PR, Erick Morales-Perez, Erick Morales Law Office, Carolina, PR, for Milagros Ayala-Gonzalez.

Idza Diaz-Rivera, P.R. Department of Justice-Federal Litigation, San Juan, PR, for Police Department of Puerto Rico, Dr. Luis A. Quinones-Esquilin, The Commonwealth of Puerto Rico, Department of Justice, Pedro A. Toledo-Davila, Superintendent of Police of the Commonwealth of Puerto Rico.

Fernando J. Fornaris-Fernandez, James W. McCartney, Cancio, Nadal, Rivera & Diaz, San Juan, PR, for Conjugal Partnership Fox-Fox, Cinda Fox, Manny Fox.

Eduardo A. Zayas-Marxuach, Roberto C. Quinones-Rivera, Britt E. Arrieta-Rivera, McConnell Valdes, San Juan, PR, for Palmas del Mar Properties, Inc.

Doris Quinones-Tridas, Luisa Velazquez-Aparicio, Quinones Tridas Law Office, PSC, San Juan, PR, for Alvaro Aranda.

Julio Cesar, Alejandro-Serrano, Luis A. Alvarado-Hernandez, Luis A. Rodriguez-Munoz, Eduardo A. Vera-Ramirez, Landron & Vera LLP, Guaynabo, PR, for Conjugal Partnership Rosa-Rosa, Joseph J. Newman, Marilyn Rosa, Nelson Rosa.

Jaime E. Morales-Morales, Morales Morales Law Offices, Sari Juan, PR, for Miguel Garraton.

Jose A. Gonzalez-Villamil, Gonzalez Villamil Law Office, San Juan, PR, for Zulma Gonzalez.

Juan Antonio Pedrero-Lozada Arroyo, Monrouzean & Associates, San Juan, PR, for Hospital Auxilio Mutuo de Puerto Rico, Sociedad Espanola de Auxilio Mutuo y Beneficiencia, Incorporated, Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico.

Jorge J. Lopez-Lopez, Otero & Lopez, LLP, Freddie Perez-Gonzalez, Freddie Perez Gonzalez & Assoc. PSC, San Juan, PR, for Eugenio Portela.

Jose L. Gonzalez-Castaner, Gonzalez Castaner & Morales Cordero Law Office, Maria C. Taboas, Fiddler, Gonzalez & Rodriguez, San Juan, PR, for William Taboas.

Luis F. Montijo, Montijo & Montijo Law Office, San Juan, PR, for Noel Totti.

Manuel A. Rodriguez-Banchs, Rio Piedras, PR, for Movimiento Solidiario Sindical.

Juan J. Casillas-Ayala, Enrique R. Padro, Fiddler, Gonzalez & Rodriguez, San Juan, PR, for Pepsiamericas, Inc.

Manuel E. Fuster, Manuel E. Fuster Martinez Law Office, Guayama, PR, for Super Roof & General Contractor.

OPINION AND ORDER ADOPING REPORT AND REOMMENDATION

DANIEL R. DOMINGUEZ, District Judge.

Pending before the Court are the following motions: (a) defendant Palmas del Mar Properties, Inc. ("PDMPI")'s Motion To Dismiss Amended Complaint (Docket No. 28); (b) plaintiffs' opposition (Docket No. 29); and (c) PDMPI's reply to plaintiffs' opposition (Docket No. 34).

This case was referred to Chief, U.S. Magistrate Judge Justo Arenas ("Magistrate Judge") for a report and recommendation on October 27, 2008 (Docket entries No. 35 and 36). On February 17, 2009, the Magistrate Judge issued Magistrate Judge's Report And Recommendation (Docket No. 39). On February 18, 2009, the Court entered an Order shortening to five (5) days the period to object to the Report and Recommendation (Docket No. 40). Plaintiffs' objections to the Report and Recommendation were filed on February 25, 2009 (Docket No. 45). PDMPI's objections to the Report and Recommendation was filed on February 27, 2009 (Docket No. 48); and PDMPI's response to plaintiffs' objections was filed on March 4, 2009 (Docket No. 51). The Magistrate Judge recommended that PDMPI's motion to dismiss under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."), be denied. The Magistrate Judge also recommended that all federal claims be dismissed, as well as the state law claims, and the request for attorneys fees (Docket No. 39). For the reasons set forth below, the Court agrees with the findings and recommendations made by the Magistrate Judge, and adopts in toto the Report and Recommendation (Docket No. 39).

Analysis

Any written objections must "specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the legal basis for such objections." L.Civ.R. 72(c). "Failure to file objections within the specified time waives the right to appeal the District Court's order." U.S. v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). Additionally, claims which are "not preserved by such objections are precluded upon appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). Thus, timely objections are required in order to challenge the findings of a magistrate's recommendation, as well as the magistrate's failure to make additional findings. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994). Additionally, only objections to the magistrate's recommendation which are specified are preserved. Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993). Therefore, the objecting party is only entitled to a de novo review of the issues which are specifically raised by the objection. See, e.g. U.S. v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); See also Gioiosa v. U.S., 684 F.2d 176, 178 (1st Cir.1982).

Fed.R.Civ.P. 72(b) provides that "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject or modify the recommended disposition...." Local Civil Rule 72(d) provides that "a district judge shall make a de novo determination of those portions to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." The Court, however, is bound to make a de novo review when the objecting party has filed its objections timely. In the instant case, the record shows that both plaintiffs and defendants filed their objections timely.

Factual and Procedural Background

The Court adopts and incorporates the findings of fact made by the Magistrate Judge that are uncontested:

Plaintiffs advance their action against PDMPI and the Palmas del Mar Homeowners' Association ("PDMHA") under the citizen suit provision of the Endangered Species Act ("ESA"). 16 U.S.C. § 1540(G)(1). Plaintiffs claim that construction performed by defendants has unlawfully harmed the nesting area of certain endangered sea turtles, including the hawksbill sea turtle and green sea turtle. They also bring several causes of action under Puerto Rico law. They seek declaratory and injunctive relief as well as compensatory damages and attorney's fees. (Docket No. 21.)

The well-pleaded facts of plaintiffs' amended complaint are assumed true and set forth below in the light most favorable to plaintiffs. Pérez Lang v. Corp. De Hoteles, S.A., 522 F.Supp.2d 349, 358 (D.P.R.2007). Plaintiff Cinda Fox owns several properties within Puerto Rico's Palmas del Mar residential complex, including a lot on the beach in the development known as Shell Castle. (Docket No. 21, at 1, ¶ 1.) "The beach at Shell Castle is a nesting area for endangered sea turtle species, including but not limited to the Hawksbill Sea Turtle ... and the Green Sea Turtle." (Id. at 2, ¶ 7.)

The Foxes used to walk the beach daily and derived great pleasure from observing the nesting sea turtles' activities. (Id. ¶ 8.) They monitored hatchlings and enjoyed watching the small turtles make their dash to the ocean. (Id.) They also spent time personally cleaning the beach to help the turtles in their dash. (Id.) The Foxes invited guests, including school children, to observe the turtles, and educated them regarding the importance of conserving these species' natural habitats and spawning sites. (Id.) In July 2006, contractors hired by PDMPI began construction on the beach at Shell Castle. (Id. at 3, ¶ 9.) The Foxes notified the Puerto Rico Department of Natural and Environmental Resources ("DNER") of this, and DNER ordered the contractors to cease construction. (Id. ¶¶ 10-11.) Antonio Maldonado, the Executive Director of PDMHA, then applied for permits from DNER on behalf of PDMPI, to allow PDMPI to perform construction and earth extraction on the beach at Shell Castle. (Id. ¶¶ 12-13.) This permit application did not, disclose that the construction had already begun and had been halted. (Id. ¶ 13.) DNER issued a permit to PDMPI that contained significant restrictions and conditions. (Id. 14.) The PDMPI contractors proceeded to cut down trees, move earth, create ditches, alter and/or fill a waterway feeding into the ocean, and install a gravel roadway. (Id. ¶ 15.) The construction included "bulldozing and introducing heavy equipment in nesting areas of endangered sea turtles...." (Id. ¶ 16.)

A stated purpose for the construction was to improve access to the beach for area residents. (Id. at 5, ¶ 22.) "This improved access includes widening the access from" the street to the beach "so that golf carts and other vehicles can access the beach even though golf cart access is illegal and will increase the take [Fn. 3]¹ of the endangered sea turtle species." (Id.) The complaint does not make clear that this widening ever took place or that any vehicles have actually accessed or driven on the beach. Nor do the factual allegations of the complaint indicate whether the construction is still ongoing or has concluded. Defendants attached an affidavit to their motion to dismiss averring that the construction concluded on September...