Portugues-Santa v. B. Fernandez Hermanos, Inc.

• Decision Date: 15 May 2009
• Docket Number: Civil No. 05-1527 (FAB).
• Citation: 614 F.Supp.2d 221
• Parties: Victor Omar PORTUGUES-SANTA, Plaintiff, v. B. FERNANDEZ HERMANOS, INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

614 F.Supp.2d 221

Victor Omar PORTUGUES-SANTA, Plaintiff, v. B. FERNANDEZ HERMANOS, INC., Defendant.

Civil No. 05-1527 (FAB).

United States District Court, D. Puerto Rico.

May 15, 2009.

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Ralph Jr. Vallone-Jr., Ralph Vallone, Jr. Law Office, San Juan, PR, for Plaintiff.

Alfredo Fernandez-Martinez, Delgado & Fernandez, Jenyfer Garcia-Soto, Sepulvado & Maldonado, PSC, San Juan, PR, for Defendant.

OPINION & ORDER

FRANCISCO A. BESOSA, District Judge.

On August 18, 2005, plaintiff Victor Omar Portugues-Santa ("Portugues") filed a verified amended complaint in which he claimed that the defendant B. Fernandez Hermanos, Inc. ("BFH") discriminated against him on the basis of race in violation of Title VII of the Civil Rights Act of 1964. (Docket No. 15) Portugues also alleged supplemental commonwealth law claims pursuant to 28 U.S.C. § 1367. (Id.) On January 16, 2007 BFH filed a motion for summary judgment. (Docket No. 130) Portugues opposed BFH's motion for summary judgment (Docket No. 155), and BFH replied to Portugues's opposition. (Docket No. 165) On June 16, 2008, the Court granted a motion requesting that facts stipulated by the parties in their initial scheduling conference be considered as part of the record at summary judgment. (Docket No. 201; see also Docket Nos. 32, 174, 182, 187) On March 10, 2009, the Court granted a motion to strike certain exhibits relied upon by Portugues in his opposition to summary judgment. (Docket No. 208; see also Docket Nos. 173, 181 & 187) On March 19, 2009, the Court summarily denied BFH's motion for summary judgment. (Docket No. 209)

Pending before the Court is BFH's motion for reconsideration of the Court's order denying summary judgment (Docket No. 213), Portugues's opposition (Docket No. 221), and BFH's reply. (Docket No. 224) For the reasons provided below, the Court GRANTS defendant BFH's motion for reconsideration (Docket No. 213) and therefore VACATES the Court's order summarily denying summary judgment (Docket No. 209) and instead GRANTS BFH's motion for summary judgment. (Docket No. 130)

I. Motion for reconsideration

The Federal Rules of Civil Procedure "do not recognize a `motion for reconsideration' in haec verba." See, e.g., Lavespere v. Niagara Mach. & Tool Works Inc., 910 F.2d 167, 173 (5th Cir.1990), cert. denied 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 131, abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir.1994). BFH moves for reconsideration of the Court's denial of its summary judgment motion without citing to any federal rule or case law. Portugues opposes BFH's motion without citing to any legal authority of his own regarding motions for reconsideration. Those motions are usually decided under Federal Rules of Civil Procedure 59(e) or 60(b). See, e.g., In re Sun Pipe Line Co., 831 F.2d 22, 24 (1st Cir.1987) ("Notwithstanding that [appellant] did not denominate any particular rule as the springboard for its reconsideration motion, it is settled in this circuit that a motion which asked the court to modify its earlier disposition of a case because of an allegedly erroneous legal result is brought under FED.R.CIV.P. 59(e)."); see also, United States v. $23,000 in United States Currency, 356 F.3d 157, 165 (1st Cir.2004) (noting that motions requesting modification of a court's earlier disposition of a case because of an erroneous legal result are usually brought under FED.R.CIV.P. 59(e), but utilizing the trial court's Rule 60(b) framework for the motion for reconsideration). Neither rule applies at this juncture of the case, however, because both rules apply only to final judgments. See FED.R.CIV.P. 59(e); FED. R.CIV.P. 60(b); United States v. Baus, 834 F.2d 1114, 1118 (1st Cir.1987). Judgment as used in the Federal Rules is defined as "any order from which an appeal lies." FED.R.CIV.P. 54(a). The Court's denial of defendant's summary judgment motion does not dispose of plaintiffs claims nor does it fall under a special carve-out that would allow for an immediate appeal of the denial of the motion. See, e.g., Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 6-7 (1st Cir.2005) (collecting cases in which certain pretrial orders are deemed immediately appealable and thus falling under FED.R.CIV.P. 59(e)); c.f. also, Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-44, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (discussing judgments that may be appealed even though they are not complete and final judgments). Because Rules 59(e) and 60(b) do not apply, the decision as to whether or not to reconsider the denial of BFH's summary judgment motion falls squarely within the plenary power of the court that issued the initial ruling, this Court. See Campos v. Puerto Rico Sun Oil Co., 536 F.2d 970, 972 n. 6 (1st Cir. 1976); Lewis v. Grinker, 660 F.Supp. 169, 170 n. 1 (E.D.N.Y.1987); Johnson v. Township of Bensalem, 609 F.Supp. 1340, 1342 (E.D.Pa.1985); Above The Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983); see also, John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 90-91, 42 S.Ct. 196, 66 L.Ed. 475 (1922) ("if an interlocutory decree be involved, a rehearing may be sought at any time before final decree, provided due diligence be employed and a revision be otherwise consonant with equity").

The Court shall exercise its discretion in favor of entertaining the motion for reconsideration. Admittedly, there is no record upon which to compare the Court's earlier denial of the summary judgment motion with the Court's present ruling on the motion for reconsideration because the Court denied the summary judgment motion without providing an explanation. Nonetheless, the Court hereby avers that it committed an error of apprehension when it first ruled on BFH's motion for summary judgment, and as such this is one of the rare occasions when a motion for reconsideration serves a valuable function. See Above The Belt, Inc., 99 F.R.D. at 101.

II. Local Rule 56

Local Rule 56 requires parties to support a motion for summary judgment with a statement of material facts. L.CIV.R. 56(b). It also requires a party opposing summary judgment to submit an opposing statement of facts that either admits, denies or qualifies the movant's proposed facts, and it allows that party to submit its own statement of additional proposed facts. L.CIV.R. 56(c). Both rules require the parties to submit "separate, short and concise" statements of fact in numbered paragraphs that are supported by pin cites to admissible evidence. L.CIV.R. 56(b), (c) & (e). As a general principle, parties may not include legal arguments or conclusions in their statement of facts. See MVM Inc. v. Rodriguez, 568 F.Supp.2d 158, 163 (D.P.R.2008); Juarbe-Velez v. Soto-Santiago, 558 F.Supp.2d 187, 192 (D.P.R.2008). Plaintiff Portugues has not complied with this rule.

Time and again plaintiff makes conclusory statements embodying legal principles in his proposed statement of facts. These statements are patently insufficient to carry the plaintiffs' burden of showing disputed issues of material fact at summary judgment because they do not provide any detail as to what occurred in this case. These statements also conflict with the purpose of local rule 56, an "anti-ferreting" rule, because they leave the court to laboriously pore through page after page of attached exhibits. See generally, Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006) ("Such local rules are useful devices for focusing a district court's attention on what is—and what is not—genuinely controverted."); Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 33 (1st Cir.2001).

For example, plaintiff states that the defendant "willfully and recklessly discriminated against Plaintiff and discharged him because of his black race." (Docket No. 158, p. 26, ¶ 24) The plaintiff then states that employees of the defendant repeatedly commented on the plaintiffs sexual orientation. (Id.) As an initial matter, the plaintiffs' sexual orientation-based claim was dismissed prior to the filing of the summary judgment papers in this case, making the second sentence irrelevant to the disposition of this case. (Docket No. 93) Even if the sexual orientation based claim had not been dismissed, the second sentence should have been included in a separate paragraph so that the support for the first second and the second sentence could be easily distinguished. More to the point, the first sentence is a legal conclusion dressed up with language relating to the supposed intent of the defendant (a corporate entity) which is irrelevant to surviving summary judgment. The plaintiff then attempts to support his proposed facts with numerous cites to his own deposition testimony as well as that of others. These cites are to specific facts such as that: (1) the plaintiff was the only director at BFH who did not have a laptop, or (2) the plaintiff's request to take a trip was denied, or (3) the plaintiff was not provided with his performance bonus immediately. These specific facts are not shorthand for the plaintiffs' conclusion that he was discharged because he was black. The way to get these facts into the record is to state them as such: the plaintiff was the only director at BFH who did not have a laptop, etc. The proposed factual statement should then be supported by the record pin cite that actually supports the statement. The citation should not be mixed with other citations that do not support the specific proposed fact.

Legal conclusions, on the other hand, belong in the plaintiffs memorandum of law. That is the document in which the plaintiff may argue that specific facts such as BFH's failure to assign the plaintiff a laptop, when considered alongside other specific proposed facts, are sufficient for the purposes of surviving summary judgment to show that the acts ascribed to BFH were motivated by a racially...