Gonzalez v. Otero
Decision Date | 28 March 2016 |
Docket Number | Civil No. 08–1330(DRD) |
Citation | 172 F.Supp.3d 477 |
Parties | Vicente Gonzalez, Linnete Munoz, and their conjugal partnership, Victor Franco, Margarita Rodriguez, and their conjugal partnership, Plaintiff(s), v. Octavio Otero, Rogelio Velez, Edwin Sepulveda, Jorge Quinones, Berta Santiago, James Adamski, Raymond Johnson, Stephen Ackman, Mark Nozaki, Billy Higgason, Ramon Roman, Gunner Pederson, Defendant(s). |
Court | U.S. District Court — District of Puerto Rico |
Nicolas Nogueras–Cartagena, Nicolas Nogueras Law Offices, Jely A. Cedeno–Richiez, San Juan, PR, for Plaintiffs.
Isabel Munoz–Acosta, Lisa E. Bhatia–Gautier, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendants.
Pending before the Court are the following motions: (a) Motion Requesting Leave for Summons by Publication, Docket No. 62; (b) Notice to the Court Regarding Plaintiffs' Request for Service of Publication filed by the federal officers and defendants Jorge Quinones;1 Berta Santiago; Raymond Johnson and Rogelio Vélez (hereinafter defendants “Quinones; Santiago; Johnson and Velez”), Docket No. 63; (c) Motion to Dismiss and Memorandum in Support and Notice of Substitution of Parties, filed by defendants, Quinones; Santiago; Johnson, and Velez, Docket No. 64; (d) Motion to Supplement Motion to Dismiss, Docket No. 66; (e) Opposition to Motion to Dismiss, filed by plaintiffs, Docket No. 71; (f) Defendants' Reply to Plaintiffs Opposition to Motion to Dismiss, Docket No. 78; (g) Motion to Dismiss for Lack of Personal Jurisdiction and Motion for Joinder of Defendants' Motion to Dismiss (Docket 64) and Defendants (Docket 78), filed by defendant Gunnar Pederson (“Pederson”), Docket No. 82; (h) Plaintiffs' Opposition to Defendant Gunnar Pederson's Motion to Dismiss, Docket No. 83; (I) Motion to Supplement Motion in Response to Defendants' Motion to Dismiss under Rule 12(b)(6) filed by plaintiffs, Docket No. 93; and (j) Second Motion to Supplement Response to Motion to Dismiss filed by plaintiffs, Docket No. 94.
In addition, the parties have filed several motions, notwithstanding the fact that the Court specifically ordered that “the stay will remain in effect until the Court entertains the Motion to Dismiss for Lack of Personal Jurisdiction and Motion for Joinder of Defendants' Motion to Dismiss (Docket 64) and Defendants' (Docket 78) . See Minutes of January 31, 2011, Docket No. 107.2
For the reasons set forth below, defendants' Motion to Dismiss and Memorandum in Support and Notice of Substitution of Parties, Docket No. 64; Supplemental Motion to Dismiss, Docket No. 66; and, defendants' Reply to Plaintiffs' Opposition, Docket No. 78, are granted.
This action was originally filed on March 18, 2008, against all defendants in their official and personal capacity. See Docket No. 1. However, prior to the commencement of the instant action both plaintiffs Gonzalez and Franco had initiated administrative proceedings with the Department of the Army of the United States (“Army”), which the Court deems critical in the factual and legal analysis of the instant complaint. This matter will be thoroughly discussed in more detail infra, the Court notes in a nutshell that neither Franco or Gonzalez exhausted their administrative procedures with the Agency and/or the Commission. Instead, plaintiffs opted to file the instant complaint ten months after the Army's final decision was rendered.3
After the filing of the instant complaint on March 18, 2008, plaintiffs filed on September 1, 2009, a third amended complaint against the same defendants but sue them in their personal capacity only, and added a claim under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), entitled “The Conspiracy To Impede Gonzalez's Appointment as Director Of The Directorate of Emergency Services, Hereinafter Referred To As DES, In Fort Buchanan.” See Docket No. 61–2.
On November 9, 2009, plaintiffs filed a Notice of Partial Voluntary Dismissal of Claims Against Jorge Quiñones and James Adamski With Prejudice, Docket No. 72. In addition, plaintiffs moved for the dismissal of all claims related to the First Amendment of the United States Constitution, as the “plaintiffs have conceded that no First Amendment Claims may lie on these facts and hereby voluntarily dismiss the same.” See Docket No. 72. Hence, as of November 9, 2009, the only remaining defendants under the [Third] Amended Complaint, Docket No. 61 are, Octavio Otero, Rogelio Velez, Edwin Sepulveda, Berta Santiago, Raymond Johnson, Stephen Ackman, Mark Nozaki, Billy Higgason, Ramon Roman, Gunner Pederson, and the United States of America.
As of this date, however, the only remaining defendants pending in this case, who have been sued in their personal capacity and have been properly served with service of process [regardless of whether the service of process was timely or not], are four defendants, to wit, Rogelio Velez; Berta Santiago; Raymond Johnson; and, Gunner Pederson.4 Lastly, according to the record of the Court, the United States is not a party in this case, as the United States of America was never served with service of process. The record shows that summons were issued by the Clerk's Office to serve the United States through the United States Attorney General, the United States Attorney for the District of Puerto Rico and the United States Army Garrison. See Docket No. 18. However, there is no evidence in the record of the Court that the summons issued were indeed properly served upon the United States, as they were not returned executed.
Before proceeding any further it is important to enumerate certain key facts and their chronology which are critical to the time frame of the facts in the instant case.
To continue reading
Request your trial-
González v. Vélez, 16-1572
...and muddled briefing—the district court granted the motion and entered judgment in the defendants' favor. See González v. Otero , 172 F.Supp.3d 477, 509 (D.P.R. 2016). The court dismissed all claims against Otero, Sepúlveda, Ackman, Nozaki, Higgason, and Román because the plaintiffs had fai......
-
Quintana-Dieppa v. Dep't of Army
...under both Rules 12(b)(1) and 12(b)(6), it ordinarily ought to decide the former before broaching the latter." González v. Otero, 172 F. Supp. 3d 477, 495 (D.P.R. 2016) (citing Deniz v. Municipality of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002)). "After all, if the court lacks subject matt......
-
Thomas v. Spaulding
...cause for the failure to effect timely service. If this defense was not waived, then it should succeed. See, e.g., Gonzalez v. Otero, 172 F. Supp. 3d 477, 497-98 (D.P.R. 2016). For the reasons set forth above, if the District Court concludes that the Foreign Defendants have not waived their......
- AIG Prop. Cas. Co. v. Green