Nogueras-Cartagena v. U.S.

• Decision Date: 28 September 2001
• Docket Number: No. CIV. 00-1778(DRD).,CIV. 00-1778(DRD).
• Parties: Nicolas NOGUERAS-CARTAGENA, Abigail Mojica Escobar, Nicolle Nogueras-Mojica, Berta Cartagena, and Daniel Mojica, Plaintiffs v. UNITED STATES of America, Guillermo Gil Bonar, Jorge Vega Pacheco, John Johnson, and Jose E. Gonzalez, Defendants
• Court: U.S. District Court — District of Puerto Rico

172 F.Supp.2d 296

Nicolas NOGUERAS-CARTAGENA, Abigail Mojica Escobar, Nicolle Nogueras-Mojica, Berta Cartagena, and Daniel Mojica, Plaintiffs v. UNITED STATES of America, Guillermo Gil Bonar, Jorge Vega Pacheco, John Johnson, and Jose E. Gonzalez, Defendants

No. CIV. 00-1778(DRD).

United States District Court, D. Puerto Rico.

September 28, 2001.

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Nicolas Nogueras-Cartagena, Esq., San Juan, P.R., for plaintiffs: Nicolas Nogueras-Cartagena Abigail Mojica-Escobar Nicolle Nogueras-Escobar Berta Cartagena Daniel Mojica.

Charles D. Monaco, Esq., Dickie, McCamey & Chilcote, Pittsburgh, PA, for defendant Guillermo Gil-Bonar Jorge E. Vega-Pacheco.

Ruben T. Nigaglioni, Esq., McConnell Valdes, San Juan, P.R., for defendant John Johnson.

Matthew Zabel, Esq., U.S. Department of Justice, Washington, D.C., for defendant United States of America.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Plaintiffs filed their complaint on June 21, 2000 (Docket # 1). An amended complaint was filed on October 18, 2000, raising tort claims pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, and a Bivens claim alleging that the individually named defendants violated the constitutional rights of the Plaintiffs (Docket # 4). Co-Defendant United States of America (hereafter "Defendant") moved to dismiss claims raised pursuant to the FTCA on the following bases: 1) those claims based upon the prosecutors' conduct are barred because they fall outside the United States' limited waiver of sovereign immunity under the FTCA; 2) the negligent investigation claims are jurisdictionally barred by the discretionary function exception to the FTCA; and, 3) and the false arrest, malicious prosecution claim and abuse of process claims fail to state a claim under Puerto Rico law (Docket # 14).

Plaintiffs contended dismissal was not proper as defendants are collaterally estopped from contesting the allegations contained in the complaint due to orders entered by the Court in the underlying criminal case. Further, Plaintiffs claimed that the Court is not required to dismiss claims alleging conduct which might fall within the intentional torts exception to FTCA claims. Finally, as to the claims of negligent investigation, Plaintiffs asserted Co-Defendants U.S. Attorney Guillermo Gil and Assistant U.S. Attorney Jorge Vega were not shielded by limited waiver of sovereign immunity under the FTCA (28 U.S.C. § 2680(h)).

Subsequently, Plaintiffs moved for partial summary judgment against the United States based upon the actions of U.S. Attorney Gil (Docket # 29). Plaintiffs asserted that the United States is barred by collateral estoppel from contesting liability based upon orders entered by the presiding and trial judge in the underlying criminal matter (Criminal No. 96-104(CCC)). Defendant responded that Plaintiffs have failed to set forth material undisputed facts establishing the specific elements of their tort claims which are grounded on false arrest and malicious prosecution. Additionally, the Defendant asserted that Plaintiffs have not shown they are entitled to judgment as a matter of law as jurisdictional issues under the FTCA as well as legal issues under Puerto Rico law bar the issuance of the remedy (Docket # 30).

Defendant then moved for an Order substituting the United States as defendant for the other individually named co-defendants for the claims in this action brought pursuant to the Federal Tort Claims Act (FTCA) (Docket # 36). The Plaintiffs objected to the substitution (Docket # 57).

The motions were referred to the Honorable Magistrate Judge Aida M. Delgado-Colón for a Report and Recommendation (Docket # 45; hereafter "R & R"), pursuant to 28 U.S.C. § 636(b)(1)(B) (1993); Fed.R.Civ.P. 72(b); and Rule 503, Local Rules, District of Puerto Rico. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). On September 10, 2001, Magistrate Judge Delgado issued her R & R in the above referenced case (Docket # 83). Magistrate Judge Delgado made the following recommendations to the Court:

1. That the United States Motion to Dismiss be GRANTED in part and DENIED in part (Docket # 14) as follows:

A. That the Motion to Dismiss be GRANTED for lack of subject matter jurisdiction as to allegations raised against Gil and Vega for false arrest, malicious prosecution and abuse of process (R & R: Section III.B.2.).

B. That the Motion to Dismiss be DENIED as to the allegations of the actions of the investigative and law enforcement officers for false arrest and malicious prosecution (R & R: Section III.B.2).

C. That the Motion to Dismiss be GRANTED as to the abuse of process claims as alleged against investigative or law enforcement officials BUT that said claims be dismissed without prejudice, with leave to amend if Plaintiffs so desire (R & R: Section III.B.2.b).

D. That the Motion to Dismiss be GRANTED (as to prosecutors and law enforcement agents) as to the negligent investigation claims (R & R: Section III.B.3).

2. That Plaintiffs' Motion for Partial Summary Judgment be DENIED (Docket # 29) (R & R: Section IV).

3. That Defendants' Motion for Substitution (Docket #36) be GRANTED and that all Puerto Rico common law claims be dismissed with prejudice against the individually named defendants (R & R: Section II).

The R & R further indicated that Objections thereto were due within ten (10) days of the parties' receipt thereof. On September 17, 2001, Plaintiffs filed a Motion Requesting Review of Sworn Statement for Reconsideration of Report & Recommendation (Docket # 86). Plaintiffs' Motion referred to a non-existing sworn statement. On September 28, 2001, Plaintiffs filed the missing "Sworn Statement", which in effect was a summary of their Amended Complaint (Docket # 94). On September 19, 2001, Defendant moved for an extension of time (Docket # 89) to file possible objections to the R & R, or in the alternative, to have the Court consider their Motion for Reconsideration (Docket # 87) as their Objections to the R & R. On September 26, 2001 the Court denied the time extension as requested, instead granting all parties until 5:00 PM on September 28, 2001, to file any possible R & R objections (Docket # 93). In the event Defendant did not make a subsequent filing, the Court noted Defendant's Motion for Reconsideration would be considered as R & R objections timely filed. Finally, our Order stated "NO FURTHER EXTENSIONS SHALL BE GRANTED." (Emphasis in the original.)

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) (1993); Fed R.Civ.P. 72(b); Rule 503, Local Rules, District of Puerto Rico. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Of course, an adversely affected party may contest the Magistrate's report and recommendation; 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.

This statutory provision is echoed by Fed.R.Civ.P. 72(b) and Local Rule 510.2. In addition, Local Rule 510.2(A) states that "[a]ny objections to the Magistrate Judge's proposed findings, recommendation, or report must be filed with the Clerk of the Court within ten (10) days after being served with [a] copy thereof. Failure to file objections within the specified time waives the right to appeal the District Court's order" (emphasis added). Rules such as this one have been approved by the U.S. Supreme Court. Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("[w]e hold that a court of appeals may adopt a rule conditioning appeal, when taken from a District Court judgment that adopts a magistrate's report and recommendation, upon the filing of objections with the District Court identifying those issues on which further review is desired.").

Plaintiffs' Motion Requesting Review of Sworn Statement for Reconsideration of Report & Recommendation

Plaintiffs' Motion Requesting Review of Sworn Statement for Reconsideration of Report & Recommendation (Docket # 86) is extremely unclear, at best. The only item that is clear is Plaintiffs are not satisfied with the Magistrate's recommendation that the United States be substituted for the individually named defendants (and the Court assumes hence, that all state claims be dismissed as against the individually named defendants). Their three-paragraph, single-page motion contains no specific objections to the R & R whatsoever. In fact, their only reference to the R & R is their first paragraph, which states in its entirety: "That on September 13th, 2001, the Honorable Magistrate Judge entered the Report and Recommendation concerning various matters on the docket."

Plaintiffs through Paragraph 2 then adopt their entire Memorandum of Law in support of their Opposition to Motion to Dismiss, by reference. Paragraph 3 then simply requests that the Court consider a statement of uncontested facts contained in an attached sworn statement "be considered along with [their] opposition to substitution." As noted earlier, the "Sworn Statement" was in essence a restatement of their Amended Complaint, and there was no reference to the R & R within whatsoever.

Our Local Rules are very clear and specific as to procedures to follow in properly objecting to a Magistrate's recommendations. Local Rule 510.2 particularly states an objecting party shall file "written objections which shall...