Serrano v. Ritz-Carlton San Juan Hotel SPA & Casino

• Decision Date: 10 August 2011
• Docket Number: Civil No. 08–1265 (FAB).
• Parties: Joel SERRANO, Plaintiff, v. RITZ–CARLTON SAN JUAN HOTEL SPA & CASINO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

808 F.Supp.2d 393

Joel SERRANO, Plaintiff,

v.RITZ–CARLTON SAN JUAN HOTEL SPA & CASINO, Defendant.

Civil No. 08–1265 (FAB).

United States District Court, D. Puerto Rico.

Aug. 10, 2011.

Ivan Pasarell–Jove, San Juan, PR, for Plaintiff.

Radames A. Torruella–Del–Valle, Luis R. Amadeo–Carron, McConnell Valdes, San Juan, PR, for Defendant.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is the Report and Recommendation (Docket No. 123), regarding defendant's motion for attorney's fees and expenses against Carlos Murati (“Murati”) and Abreu (“Abreu”), (Docket No. 97). Having considered the magistrate judge's recommendations, Murati's objections, and defendant's response to those objections, the Court

ADOPTS IN PART AND REJECTS IN

PART

the Report and Recommendation, (Docket No. 123), and GRANTS IN PART AND DENIES IN PART the motion for attorney's fees, (Docket No. 97).

DISCUSSION

I. BackgroundA. Procedural Background

The motion for attorneys' fees and costs filed by defendant, (Docket No. 97), arises out of a discovery dispute concerning the deposition of two of plaintiff's fact witnesses, Carlos Murati (“Murati”) and Ramon Abreu (“Abreu”). ( See Docket Nos. 72, 97.) For various reasons, the original depositions of Murati and Abreu were not held on their scheduled dates. ¹ Defendant subsequently moved for leave to depose those witnesses beyond the original discovery deadline. (Docket No. 55.) Shortly before his second deposition was scheduled to begin, Murati filed a motion for a protective order to limit the scope of the documents and testimony to be provided to defendant during the deposition. (Docket No. 68.)

On March 4, 2010, the Court denied the motion for a protective order and ordered Murati and Abreu personally to pay to defendant all attorneys' fees, costs and expenses incurred by defendant in its efforts to depose and obtain documents from those witnesses. (Docket No. 72.) The Court also struck the testimony of Murati and Abreu and precluded its use at trial. Id. On March 10, 2010, Murati filed a motion for reconsideration, arguing that there was no basis to deny his motion for a protective order and impose sanctions on him. (Docket No. 77.)

On May 24, 2010, defendant filed its motion requesting the attorney's fees awarded in the Court's order striking the testimony of Murati and Abreu. (Docket No. 97.) In that motion, defendant requests attorney's fees and costs against Murati in the amount of $20,626.55 and against Abreu in the amount of $9,986.05. Id. at 2. On June 6, 2010, Murati filed an opposition to that motion, arguing that there is no basis to impose the sanctions ordered by the Court, and that the attorney's fees and costs requested by defendant are excessive. (Docket Nos. 98 & 98–1.) Defendant filed a reply on June 28, 2010. (Docket No. 103.) On August 2, 2010, the Court referred the motion for attorney's fees to a magistrate judge. (Docket No. 104.)

On November 1, 2010, Magistrate Judge Marcos Lopez held an evidentiary hearing regarding the issues presented in Murati's motion for reconsideration and defendant's motion for attorney's fees. (Docket No. 118.) Following that hearing, the magistrate judge issued a report and recommendation, concluding that sanctions were justified and recommending, with minor adjustments, the awards requested in the motion for attorney's fees. (Docket No. 123.) On May 26, 2011, Murati filed an objection to the report and recommendation, repeating his arguments that his conduct does not merit sanctions and that attorney's fees should not be awarded to defendant. (Docket No. 125.) On June 27, 2011, defendant filed a response to that objection. (Docket No. 129.)

B. Factual Background

Murati does not object to the basic factual background presented in the report and recommendation, but rather challenges the magistrate's conclusion that those underlying facts justify the imposition of sanctions. ( See Docket No. 125.) Given that lack of objection, the following is a brief recitation of the magistrate's factual findings with regard to Murati, which the Court has independently confirmed from the materials submitted by Murati and defendant, as well as the transcript of the evidentiary hearing held on November 1, 2010. ( See Docket Nos. 123 & 130.)

Murati was served with a subpoena to appear at a deposition scheduled for December 16, 2009 at the offices of defendant's attorneys. (Docket No. 123 at 3.) On December 15, 2009, Murati contacted, and eventually met with, Luis R. Amadeo (“Amadeo”), one of defendant's attorneys, to inform him that he would not be able to attend the deposition because he had a hearing with the Equal Employment Opportunity Commission (“EEOC”) on the same day, and also needed to make arrangements to take care of health-related matters for his mother, a cancer survivor. Id. at 3–4. Given those excuses, Amadeo offered to reschedule the deposition.

At the time Murati spoke to Amadeo, however, Murati already knew that he had been excused from appearing at the EEOC on the date scheduled for his deposition. Id. at 4. Murati did not disclose the fact that he was actually not required to attend the EEOC proceedings at the time Amadeo agreed to reschedule the deposition. Id. On December 16, 2009, Murati did not appear at the EEOC despite having represented to Amadeo that his presence was required. Id.

After rescheduling Murati's deposition, Ritz–Carlton's attorneys attempted to serve Murati with a subpoena for a second deposition through a professional process server, Aguedo de la Torre (“De la Torre”). (Docket No. 123 at 4.) De la Torre attempted to serve Murati at his home twice, ultimately leaving his business card with Murati's mother and explaining the nature of his visit. Id. at 4–5. De la Torre then passed the subpoena on to his wife and son, who are also professional process servers. Id. It took five more visits to Murati's home before De la Torre's son was able to serve Murati with the subpoena on January 26, 2010. Id. at 5.

On February 25, 2010, Murati and Victoria Ferrer (“Ferrer”), the attorney representing him at the time, arrived at the offices of defendant's attorneys for his deposition. Id. Upon Murati's arrival, Radames A. Torruella (“Torruella”), another of defendant's attorneys, immediately opened the record and informed Ferrer that Murati had no right to the assistance of counsel during the deposition, but that as a courtesy he would allow Ferrer to be present as long as she would not interrupt or interfere with the deposition. Id. at 6. Ferrer disagreed with any conditions being placed on her presence at the deposition and argued that she had a right to represent her client. Id. Torruella requested that, if Murati and Ferrer were planning on leaving his offices, to return to the deposition room first so that a new deposition date could be chosen on the record in order to avoid any further service costs of future subpoenas. Id. After Ferrer and Murati left the conference room, Torruella followed and stopped them, stating that Murati was obligated to return to the conference room and that it was necessary to choose another deposition date. Id. Ferrer responded that she could not immediately find an appropriate date because she did not have her calendar available. Id. At that time, Torruella said that he would not insist on his previously mentioned conditions. Id. Despite Torruella removing the conditions to which Ferrer objected, Murati and Ferrer left the offices of defendant's attorneys without setting up a date ultimately to take Murati's deposition for the purposes of this case. Id.

II. Legal AnalysisA. Legal Standard for Reviewing a Magistrate's Findings

A district court may refer a case to a magistrate judge for pretrial management and 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 report and recommendation may file written objections within fourteen days of being served with the magistrate judge's report. 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 recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191–92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). Failure to comply with this rule precludes further review. See Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). In conducting its review, the court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(a), (b)(1). Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez–Mejias, 428 F.Supp.2d at 6 (citing Lacedra, 334 F.Supp.2d at 125–126).

B. Murati's Objections

1. The Contempt Finding

Murati objects to the basis for finding him in contempt of the Court's discovery orders and, consequently, imposing attorney's fees and costs on him for that contempt. (Docket No. 125.) Murati specifically objects to the magistrate's conclusion that his conduct during the discovery phase of this case warrants those sanctions. Id. Having reviewed the report and recommendation, Murati's objection, defendant's response to that objection, and the transcript of the evidentiary hearing held by the magistrate, the Court agrees with the magistrate's conclusions regarding Murati's behavior in response to the deposition subpoenas. ( See Docket Nos. 123, 125, 129, 130.)

It is evident from the materials and testimony submitted to the magistrate that Murati was untruthful when rescheduling his first deposition, unnecessarily complicated the service of the subpoena for...