Melendez v. Sap Andina Y Del Caribe, C.A.

• Decision Date: 24 September 2007
• Docket Number: Civil No. 05-1778 (ADC).
• Citation: 518 F.Supp.2d 344
• Parties: William MELÉNDEZ, Plaintiff v. SAP ANDINA Y DEL CARIBE, C.A., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

518 F.Supp.2d 344

William MELÉNDEZ, Plaintiff v. SAP ANDINA Y DEL CARIBE, C.A., et al., Defendants.

Civil No. 05-1778 (ADC).

United States District Court, D. Puerto Rico.

September 24, 2007.

William E. Melendez, San Juan, PR, pro se.

Ana M. Santiago-Ramirez, Jose F. Benitez-Mier, Luis A. Nunez-Salgado, O'Neill & Borges, Juan J. Casillas-Ayala, Fiddler, Gonzalez & Rodriguez, San Juan, PR, for Defendants.

OPINION AND ORDER

AIDA M. DELGADO-COLON, District Judge.

On July 14, 2005, Plaintiff, William Meléndez ("Plaintiff' or "Meléndez") filed this action against Defendants, SAP Andina y del Caribe, Pedro Muñoz and César Ovideo ("Defendants"), seeking monetary and injunctive relief for alleged national origin discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et. seq. Plaintiff also brings supplemental state law claims pursuant to Puerto Rico's anti-discrimination statute, Law 100. 29 L.P.R.A. § 146. Plaintiff alleges, in essence, that SAP Andina refused to hire him because of his national origin and age. (Docket No. 1).

Now before the Court are Plaintiff's objections (Docket Nos. 134 & 135) to the report and recommendations ("R & Rs") (Docket Nos. 129 & 130) issued by Magistrate-Judge, Camille Vélez-Rivé ("Magistrate-Judge" or "Magistrate-Judge Vélez") on August 13, 2007, which recommended granting Defendants' Motion for Summary Judgment (Docket No. 87) and three motions to dismiss pursuant to Federal Rule of Civil Procedure 37. (Docket Nos. 83, 84, 117).¹ Defendants oppose the objections. (Docket No. 136).

After reviewing the R & Rs, objections, pleadings, statements of fact, exhibits and memoranda in support and opposition to Plaintiff's objections (Docket Nos. 83, 84, 87, 88, 121, 129, 130, 134 & 135), the Court adopts the R & Rs, in full, thereby granting Defendants' Motion to for Summary Judgment and motions to dismiss pursuant to FRCP 37.

I. Factual and Procedural Background

The Court recounts the factual and procedural background necessary to address Plaintiffs objections. A more comprehensive discussion of the travel of this case, including the heavy motion practice relating to various motions relating to noncompliance with discovery and court orders appears in the R & R addressing the Rule 37 motions. (Docket No. 130).

At the commencement of this action, Plaintiff was represented by counsel, Enrique A. Báez ("Báez") and Miguel A. Cuadros ("Cuadros"). (Docket Nos. 1, 20). However, on December 9, 2005, Báez and Cuadros sought leave to withdraw representation. (Docket No. 20). Before leave was granted, the Judge assigned to the case at the time, Judge Carmen Consuelo Cerezo, ordered counsel to provide Plaintiffs mailing address, presumably in order to receive service of documents. (Docket No. 23).² A second motion to withdraw representation was filed and granted on March 6, 2006. (Docket No. 30).

On March 16, 2006, Plaintiff, appearing pro-se, filed a motion requesting permission to file motions and documents through the court's electronic filing system. (Docket No. 32). The Court granted the motion and directed Plaintiff to "contact the pro-se office for assistance with the filings of pleadings." (Docket No. 43).

On June 1, 2006, a status conference was held. Plaintiff was urged to retain counsel and provided twenty days in which to do so. The Court also encouraged him to review the Rules of Civil Procedure and Local Rules. (Docket No. 58). On July 3, 2006, Plaintiff requested an extension of time to oppose a pending motion to dismiss (for discovery violations) in order to retain counsel. (Docket No. 64). Three days later, the morning Plaintiff was scheduled to appear at his deposition, Plaintiff filed another motion informing the court that he had identified counsel to retain but required more time to secure representation. (Docket No. 64). The Court denied the motion, advising Plaintiff that as stated in the last conference, no further continuances were to be allowed and that he had to appear for taking of his deposition. (Docket No. 66). Plaintiff did not appear and Defendants again moved to dismiss. (Docket No. 67).

At this stage, rather than dismissing the action, the Court ordered Plaintiff to show cause why sanctions should not be imposed for his failure to appear at the deposition. (Docket No. 69). Plaintiff, through newly retained counsel, José R. Cintrón ("Attorney Cintróm"), requested that the case not be dismissed and offered to pay costs associated with the non-appearance. (Docket No. 71).

On August 23, 2006, the Court awarded costs of $1,304 to Defendants and noted:

While plaintiff counsel argues that miscompliance was due to plaintiff's inability to retain counsel, it is an undisputed fact that at the conference held on June 1, 2006, the Court clearly warned plaintiff of his duty to appear at the scheduled deposition even if still unable to retain counsel. Besides, the record clearly reflects that plaintiff has failed, in spite of repeated instructions and explanations of his role as pro se litigant, to comply with instructions and orders regarding discovery .... and depositions.

* * *

While co-defendants have moved, twice; for dismissal of the action, this Court while not imposing the ultimate harsher sanction (dismissal), sanctions plaintiff to pay and reimburse defendants ... (Docket No. 74)

On September 26, 2006, Attorney Cintróm filed a motion to withdraw, noting that his client had asked him to withdraw, and further requested 30 days for Plaintiff to again find and retain counsel. (Docket No. 82).

On October 6, 2006 and November 21, 2006, Defendants filed two more motions to dismiss on the grounds that Plaintiff failed to again appear at another scheduled deposition and pay the previously assessed monetary sanction. (Docket Nos. 83 & 84).

On November 22, 2006, the Court granted Attorney Cintróm's motion to withdraw and allowed Plaintiff until December 30, 2006 to retain new counsel. The Court warned that "[F]ailure to do so will compel him to litigate his own case. Under such scenario, plaintiff will be subjected to, the Local Rules and Rules of Civil Procedure as any other litigant represented by counsel. Plaintiff has been similarly warned in prior instances. Plaintiff shall subject himself to deposition prior to January 20, 2007.... Failure to abide will prompt dismissal of the action." (Docket No. 85). In light of this one last opportunity afforded to Plaintiff, the Court held Defendant's motion to dismiss in abeyance. (Docket No. 86).

That same day, Defendants filed a Motion for Summary Judgment. (Docket Nos. 87 & 88). Defendants argued, in substance, that Plaintiff could not establish that he had applied for the position sought, much less able to demonstrate that he was qualified for the position. Id. Although Plaintiff's response to the motion was due by December 5, 2006, he did not submit an opposition. On December 12, 2006, Defendants filed a motion requesting that the motion be deemed unopposed. (Docket No. 89).

On December 31, 2006, Plaintiff, appearing pro-se, sought to strike from the record the Motion for Summary Judgment and other motions, arguing, among other things, that he had not been served with any case filings since September 27, 2006. (Docket No. 91). In response, Defendants submitted copies of emails showing that courtesy copies of filings had been sent to Plaintiff. (Docket No. 95).

On June 26, 2007, the Court referred all pending motions to dismiss and the Motion for Summary Judgment to Magistrate-Judge Vélez for the issuance of reports. and recommendations. (Docket No. 124). Thereafter, on August 13, 2007, Magistrate-Vélez issued an R & R, recommending, inter alia, that the Court grant the Motion for Summary Judgment on the grounds that Plaintiff failed to establish a prima facie case of age or national origin discrimination. Id. Specifically, Magistrate-Vélez found the lack of evidence that, Plaintiff had applied for employment with SAP Andina or, even assuming that he had applied, that he was qualified for the position to be fatal to both the age and national origin discrimination claims. See Docket No. 129 at 11-12, 15. The Magistrate-Judge also recommended that the Court exercise pendant jurisdiction and dismiss the state law claim for essentially the same reason. Id. at 19.³

On the same date, Magistrate-Vélez issued an R & R recommending, in the alternative, that the Court grant the motions to dismiss pursuant to Rule 37. (Docket Nos. 83, 84, 117, 130). Although these motions were now most likely mooted by the Motion for Summary Judgment, the Magistrate-Judge nevertheless concluded that dismissal of the action pursuant to Rule 37 was also appropriate. (Docket No. 130). In so finding, the Magistrate Judge noted that Plaintiff had "been apprised on numerous occasions that his lack of diligence, failure to comply with the orders of the court, and his challenged attitude in not making himself available for depositions, were subject to sanctions, including dismissal" and found that "in consideration of the historical trend followed by plaintiff Meléndez in this case, it is recommended that co-defendant's requests for dismissal be GRANTED." Id. at 6-7.

As noted above, Plaintiff objected to both R & Rs' and Defendants submitted an opposition. (Docket Nos. 134, 135, 136).

II. Standard of Review for Objections to a Report and Recommendation

A District Court may refer pending motions to a Magistrate-Judge for a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Rule 72(a). Any party adversely affected by the recommendation issued may file written objections within ten days of being served with the Report and Recommendation. See 28 U.S.C. § 636(b)(1). 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...