Nieto-Vincenty v. Valledor
| Decision Date | 30 May 2014 |
| Docket Number | Civil No. 12–1585 FAB. |
| Citation | 22 F.Supp.3d 153 |
| Court | U.S. District Court — District of Puerto Rico |
| Parties | Rafael Ismael NIETO–VINCENTY, et al., Plaintiffs, v. Ronald Jose VALLEDOR, et al., Defendants. |
Eugene F. Hestres–Velez, Bird, Bird & Hestres, Old San Juan, PR, for Plaintiffs.
Henry O. Freese–Souffront, McConnell Valdes, Amancio Arias–Guardiola, Arias Cestero & Arias Guardiola, Fernando Sabater–Clavell, Ian P. Carvajal–Zarabozo, Saldana, Carvajal & Velez–Rive, Psc., Manolo T. Rodriguez–Bird, Jimenez, Graffam & Lausell, San Juan, PR, for Defendants.
Before the Court are three motions for summary judgment: one filed by Jose A. Valledor, Concepcion Valledor, and their conjugal partnership (Docket No. 75); a second filed by those same defendants, as well as Zurqui, Inc. d/b/a Sea Watch Divers (“Zurqui”), and Ronald Jose Valledor (Docket No. 80); and a third filed by Palmasdel Mar Yacht Club and Marina (“PDMYC”) (Docket No. 81.) Also pending is a motion to strike. (Docket No. 95.) After considering all relevant motions and replies, the Court now GRANTS the motions for summary judgment at Docket Numbers 75 and 81, GRANTS IN PART and DENIES IN PART the motion for summary judgment at Docket Number 80, and DENIES the motion to strike at Docket Number 95.
Summary judgment serves to assess the evidence and determine if there is a genuine need for trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). The Court may grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it has the potential to “affect the outcome of the suit under the governing law.” Id. A dispute is “genuine” when it “could be resolved in favor of either party.” Calero–Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir.2004). The party moving for summary judgment has the initial burden of “demonstrat[ing] the absence of a genuine issue of material fact” with definite and competent evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). It must identify “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ ” which support its motion. Id. (citing Fed.R.Civ.P. 56(c) ). Once a properly supported motion has been presented, the burden shifts to the non-moving party “to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal citation omitted).
It is well-settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A] party opposing summary judgment[, therefore,] must ‘present definite, competent evidence to rebut the motion.’ ” Maldonado–Denis, 23 F.3d at 581 (internal citation omitted). In making this assessment, the Court must take the entire record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 779–80 (1st Cir.2011).
Defendants Zurqui, Inc. d/b/a Sea Watch Divers (“Zurqui, Inc.”), Ronald Jose Valledor, Jose A. Valledor, Concepcion Valledor, and the conjugal partnership between Jose and Concepcion Valledor (collectively, “the Valledor defendants”) move for summary judgment on three different grounds. (Docket No. 80.) After addressing defendants' motion to strike plaintiffs' expert witness (Docket No. 95), the Court will address each ground for summary judgment in turn.
Pursuant to deadlines agreed upon by the parties, plaintiffs' written answers to discovery were due on August 30, 2013, their expert reports on September 3, 2013, and their expert names and curricula vitae on September 6, 2013; discovery closed on February 7, 2014. (Docket No. 95.) On August 30, 2013, plaintiffs provided defendants with a preliminary report by an expert witness with whom they had consulted, Commander John Deck III. (Docket Nos. 103–1 & 103–2.) On April 21, 2014, plaintiffs submitted a supplemental report by Commander Deck as an attachment to their opposing statement of material facts. (Docket No. 87–15.) That same day, Zurqui, Inc. and the Valledor defendants moved to strike Commander Deck's unsworn declaration and supplemental report, and to preclude the designation of Commander Deck as an expert witness. (Docket No. 95.) Defendants contend that, despite their allowing plaintiffs multiple extensions of time to comply with discovery obligations and deadlines, plaintiffs failed to designate their expert witness and submit a supplemental expert report before the mutually agreed upon deadline. Id.
Federal Rule of Civil Procedure 37 provides for the exclusion of tardy expert witness disclosures “unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Plaintiffs do not offer any justification for their failure to comply fully with their supplemental discovery and disclosure deadlines, and the Court sympathizes with defendants' frustration. Nevertheless, the Court finds that plaintiffs' tardiness was harmless. Defendants had knowledge of plaintiffs' expert's identity and the substance of his preliminary report on August 30, 2013. (Docket Nos. 103–1 & 103–2.) Additionally, defendants assure that they did not “throw caution to the wind and simply assume that [p]laintiffs had not designated an expert witness,” but rather retained two expert witnesses of their own. (Docket No. 95 at ¶ 15.) Their suspicion that plaintiffs would eventually designate Captain Deck takes the wind out of the sails of defendants' prejudice argument and indicates that defendants could have similarly arranged to depose him prior to the close of discovery. Accordingly, defendants' motion to strike (Docket No. 95) is DENIED. The Court declines to reopen discovery; any future non-compliance on behalf of either party, particularly the plaintiffs, however, will result in sanctions.
On July 24, 2011, the M/V Sea Watch (“Sea Watch”), a seagoing diesel-propelled vessel, sank approximately 3.4 miles off the coast of Humacao, Puerto Rico. (Docket No. 82–1 at ¶ 9.) At that time, twenty-three persons were on board the vessel, including twenty-one plaintiffs as passengers, Ronald Valledor at the helm, and crew-member Edwin Sanchez.1 (Docket No. 82–1 at ¶ 7.) All passengers on board the vessel were rescued. (Docket No. 1 at ¶ 54.) Plaintiff Alicia Vincenty–Medina, the wife of co-plaintiff and passenger Camillo Cangani, was not a passenger aboard the Sea Watch. (Docket Nos. 1 at ¶ 37; 82–2 at pp. 16–17.)
A few days before July 24, 2011, plaintiff Rafael Ismael Nieto–Vincenty (“Nieto–Vincenty”) contacted Ronald Valledor to discuss the possibility of transporting a group of friends and family members, including several children, from the Palmas del Mar marina to Vieques. (Docket Nos. 82–1 at ¶ 4; 1 at ¶ 33.) On July 23, 2011, plaintiff Nieto–Vincenty and his wife, plaintiff Zelma Charlotte Chiesa–Fuxench, met with Ronald Valledor and paid him $100.00.2 (Docket Nos. 87–3 at p. 2; 94–1 at ¶ 8.) The twenty-one passengers arrived at Palmas del Mar Yacht Club and Marina (“PDMYC”) on the morning of July 24, 2011. (Docket No. 82–1 at ¶ 6.) The Sea Watch had a total seating capacity for twenty-two persons, not including the helmsman's seat. (Docket No. 82–3 at p. 2.)
From the beginning of the voyage, smoke came from the vessel; the crew informed the passengers that the smoke was a normal occurrence, and the trip continued. (Docket Nos. 87–3 & 87–6 at pp. 12–13.) Approximately midway through the voyage, the Sea Watch began to take on water below deck. (Docket Nos. 87–2; 87–3; 87–5 at pp. 25–26.) Ronald Valledor—assisted by Sanchez—was operating the Sea Watch at the time of its sinking. (Docket No. 87 at p. 10.) The United States Coast Guard subsequently conducted a search and rescue operation and investigation, but could not definitively determine the cause of the vessel's flooding and sinking. (Docket Nos. 87–9; 87–11 at ¶ 5.)
On July 25, 2011, Ronald Valledor and others dove in the location where the Sea Watch had sunk in order to recover some of the passengers's personal belongings; they inspected and photographed the vessel, and discovered that the hull had been perforated. (Docket Nos. 82–1 at ¶ 10–11; 87–10.)
Zurqui, Inc. and the Valledor defendants claim that because plaintiffs were not “seamen” pursuant to admiralty law, they were not entitled to a warranty of seaworthiness, or any protection derived from that warranty, from defendants. Defendants contend that plaintiffs' first cause of action is tantamount to a warranty of seaworthiness claim, under which the vessel and her owner are liable for the injuries suffered by a “seaman” caused by the unseaworthiness of the ship. See The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903) (superseded in part by statute 46 U.S.C. § 30104, as stated in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009) ). “The duty of seaworthiness is absolute and independent of negligence....” 1 Thomas Schoenbaum, Admiralty & Maritime Law § 6–25 (5th ed.2012). This duty is owed to Id. at § 6–27. See also Kermarec v. Compagnie...
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