Soler v. Puerto Rico Telephone Co., No. CIV.01-2548 (GG).

CourtU.S. District Court — District of Puerto Rico
Writing for the CourtGierbolini
Citation230 F.Supp.2d 232
PartiesDeborah Cruz SOLER, et als. Plaintiffs v. PUERTO RICO TELEPHONE COMPANY, et als. Defendant
Docket NumberNo. CIV.01-2548 (GG).
Decision Date30 September 2002
230 F.Supp.2d 232
Deborah Cruz SOLER, et als. Plaintiffs
v.
PUERTO RICO TELEPHONE COMPANY, et als. Defendant
No. CIV.01-2548 (GG).
United States District Court, D. Puerto Rico.
September 30, 2002.

Page 233

Rafael Colon Flores, Ponce, for Plaintiffs.

Luis F. Del Valle Emmanuelli, Garcia & Fernandez, San Juan, for Defendants.

OPINION AND ORDER

GIERBOLINI, Senior District Judge.


Pending before us are defendants' motions to dismiss under Fed.R.Civ.P. 12(b)(1) & (6) and motions for sanctions under Fed.R.Civ.P. 11 (docket entries # 4, 5, 14, 16, 17 & 21). Also pending is the plaintiffs' "Motion Requesting Dismissal Without Prejudice". (Docket entry # 15).

BACKGROUND

This is a civil action filed on November 13, 2001 by Deborah Cruz Soler and her husband. Mrs. Cruz was an employee1 of the Puerto Rico Telephone Company (PRTC) who claims that on June 10, 2000, the PRTC, through management and co-workers named as additional co-defendants, started violating her civil rights to human dignity and to not "be discriminated [because] of her race, color, sex, birth, origin, social status, political or religious ideas or any other way not applied to the general public." See, ¶ 27 of the Complaint, docket entry # 1. Subject matter jurisdiction is predicated under 28 U.S.C. §§ 1332 & 2675, that is, pursuant to the diversity of citizenship statute and the Federal Tort Claims Act. See, ¶ 1 of the Complaint, supra.

On December 17, 2001, co-defendant PRTC informed us that on December 12 it had served upon the plaintiffs a Rule 11(C)(1)(A) notice requesting them to move for a voluntary dismissal of the action by January 4, 2002. The plaintiffs did not request the voluntary dismissal of the complaint nor in any way objected the request. On January 7, 2001, the PRTC filed a motion to dismiss the action with prejudice based on lack of subject matter jurisdiction and failure to state a cognizable cause of action. In addition, it requested the payment of attorneys' fees and costs.

In view of the clear pleading deficiencies of the complaint, we immediately ordered the plaintiffs to show cause, by January 17, 2002, why the action should not be dismissed with prejudice and severe monetary sanctions should not be imposed upon both the plaintiffs and their counsel. (Docket entry # 6). On January 17, 2002, the plaintiffs requested until February 6, 2002, to obtain the necessary documents to show cause. We granted their request. Meanwhile, the plaintiffs continued serving process upon other co-defendants who then joined PRTC's motion to dismiss and for sanctions. (Docket entries # 8, 11, 12, 18). On February 6, 2002, instead of showing cause as ordered, the plaintiffs simply stated in a conclusory fashion that their claim was not frivolous and that the evidence to be presented would show "specific

Page 234

violations to federal and state antidiscrimination laws". Nonetheless, they requested the dismissal of the action without prejudice in order to exhaust the administrative remedies "provided by the Equal Employment Opportunities Commission." See, Motion Requesting Dismissal Without Prejudice, (docket entry # 15).

Obviously, the PRTC objected and reiterated its request that the dismissal be with prejudice. Thirty-one (31) days later, the plaintiffs reiterated their request for a dismissal without prejudice. In view of the untimeliness and total disregard to the applicable local rules, the PRTC requested that the plaintiffs' reply be stricken. (Docket entry # 21). Thirty-six (36) days after, the plaintiffs filed their opposition to the motion to strike, which curiously provides no explanation for their total failure to comply with Local Rule 311. (Docket entry # 22).

SUBJECT MATTER JURISDICTION

Because federal courts are courts of limited jurisdiction, they can act only where the Constitution and Congress endow them with some affirmative ground to do so. See, Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); U.S.I. Properties Corp. v. M.D. Const. Co., 230 F.3d 489, 499 (1st Cir.2000). Hence, federal jurisdiction is never presumed. See, Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998); Cusumano v. Microsoft Corp., 162 F.3d 708, 712 (1st Cir.1998). Instead, the plaintiffs must carry the burden of demonstrating the existence of federal jurisdiction. See, Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir.1996); Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995). By the same token, the parties cannot confer on federal courts, even by consent, subject-matter jurisdiction when there is none. See, Peretz v. U.S., 501 U.S. 923, 950, 111 S.Ct. 2661, 2676, 115 L.Ed.2d 808 (1991).

DIVERSITY JURISDICTION

Diversity jurisdiction exists when the claims in the complaint are between citizens of different states and when the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). It is hornbook law that when federal jurisdiction is based on diversity of citizenship, complete diversity must exist between the adverse parties in the action. That is, the citizenship of each plaintiff must be diverse from that of each defendant. See, Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74, 98 S.Ct. 2396, 57 L.Ed.2d 274; Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. at 829, 109 S.Ct. 2218 ("When a plaintiff sues more than one defendant in a diversity action, the plaintiff must meet the requirements of the diversity statute for each defendant or face dismissal."); Toste Farm Corp. v. Hadbury, Inc., 70 F.3d 640, 642 (1st Cir.1995); Media Duplication Services Ltd. v. HDG Software Inc., 928 F.2d 1228, 1235 (1st Cir.1991). The existence of diversity jurisdiction must be evident on the face of the complaint in order for a federal court to assume jurisdiction. See, Fifty Associates v. Prudential Insurance Company of America, 446 F.2d 1187 (9th Cir.1970).

In the complaint the plaintiffs explicitly asserted subject matter jurisdiction upon the diversity of citizenship statute. However, the complaint is devoid of any allegation as to the citizenship of the defendants. Not only is this a violation of Rule 8 of the Fed.R.Civ.Proc., but the plaintiffs' naked allegations of diversity of citizenship are insufficient to confer diversity jurisdiction upon this court. See, Alvarez Meléndez v. Citibank, 705 F.Supp. 67 (D.P.R.1988); Kussmaul v. Peters Const. Co., 563 F.Supp. 91 (D.R.I.1983). Worst of all, though the plaintiffs were afforded an opportunity to directly address

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the issue, no explanation has been given to counter the arguments presented by the defendants regarding lack of diversity.2 Thus, in view of the plaintiffs' failure to plead diversity jurisdiction properly, we are without diversity of citizenship jurisdiction.

FEDERAL QUESTION JURISDICTION

Surprisingly, the plaintiffs have also invoked 28 U.S.C. § 2675 as another basis for subject matter jurisdiction. This provision regulates the exhaustion of administrative remedies required by the Federal Tort Claims Act (FTCA). The FTCA vests federal district courts with jurisdiction over claims against the United States of America for damages caused by the negligent or wrongful act or omission of any employee of the Federal Government while acting within the scope of his/her office or employment. See, 28 U.S.C. § 1346(b); Magee v. U.S., 121 F.3d 1, 3 (1st Cir.1997). Obviously, this is totally inapplicable in this case where none of the named defendants is the United States, one of its employees or agencies.

The plaintiffs have also intimated in their complaint that this case arises under 42 U.S.C. § 1983. They assert in the complaint that the PRTC, "an [i]nstrumentality of the Government of the Commonwealth of Puerto Rico" violated Mrs. Cruz Soler's civil rights. See, ¶¶ 1, 5 & 27. The basic premise of this allegation-state actionis totally misplaced. It is well known in this jurisdiction that the PRTC is no longer an instrumentality of the Commonwealth of Puerto Rico and that it has been a private corporation since way before the alleged acts of this case occurred. Therefore, the state action element, which is crucial for a civil rights action under Section 1983, is absent in this case.

The plaintiffs assert that the other cause of action raised in the complaint is for discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. It has been discussed to satiety in the jurisprudence that a claimant who seeks to recover for an asserted violation of Title VII, first must exhaust administrative remedies by filing a charge with the EEOC, or alternatively, with an appropriate state or local agency, within the prescribed time limits. See, 42 U.S.C. § 2000e-5(f); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir.1999); Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st...

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6 practice notes
  • Chico v. Puerto Rico Elec. Power Authority, No. CIV. 01-2150(SEC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 1 Abril 2004
    ...(1978); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Soler v. P.R. Telephone Co., 230 F.Supp.2d 232, 234 (D.P.R.2002) (citing Owen Equip. and Newman-Green). Moreover, the existence of diversity jurisdiction must be evident on the face of ......
  • Tanon v. Muniz, No. CIV. 01-2624(SEC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 31 Marzo 2004
    ...(1978); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Soler v. P.R. Telephone Co., 230 F.Supp.2d 232, 234 (D.P.R.2002) (citing Owen Equip. and Newman-Green). Moreover, the existence of diversity jurisdiction must be evident on the face of ......
  • Celta Agen. v. Denizcilksanayi Ve Ticaaret, No. CIV. 01-1978(RLA).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 18 Octubre 2005
    ...290 F.3d 456, 461 (1st Cir.2002); Top Entertainment Inc. v. Ortega, 285 F.3d 115, 118 (1st Cir.2002); Soler v. P.R. Telephone Co., 230 F.Supp.2d 232, 236 Defendants base their Rule 11 request arguing that in its complaint CELTA failed to advise of a prior transaction whereby it sold most of......
  • Brown v. Banks Grocery Co., CASE NO. 5:12-CV-122-LLK
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 2 Marzo 2015
    ...of diversity of citizenship does not suffice to invoke the federal courts' subject-matter jurisdiction. See Soler v. P.R. Tel. Co., 230 F. Supp. 2d 232, 234 (D.P.R. 2002). At the time it filed its notice of removal, Banks also filed a copy of the complaint and answer filed in the McCracken ......
  • Request a trial to view additional results
6 cases
  • Chico v. Puerto Rico Elec. Power Authority, No. CIV. 01-2150(SEC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 1 Abril 2004
    ...(1978); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Soler v. P.R. Telephone Co., 230 F.Supp.2d 232, 234 (D.P.R.2002) (citing Owen Equip. and Newman-Green). Moreover, the existence of diversity jurisdiction must be evident on the face of ......
  • Tanon v. Muniz, No. CIV. 01-2624(SEC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 31 Marzo 2004
    ...(1978); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Soler v. P.R. Telephone Co., 230 F.Supp.2d 232, 234 (D.P.R.2002) (citing Owen Equip. and Newman-Green). Moreover, the existence of diversity jurisdiction must be evident on the face of ......
  • Celta Agen. v. Denizcilksanayi Ve Ticaaret, No. CIV. 01-1978(RLA).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 18 Octubre 2005
    ...290 F.3d 456, 461 (1st Cir.2002); Top Entertainment Inc. v. Ortega, 285 F.3d 115, 118 (1st Cir.2002); Soler v. P.R. Telephone Co., 230 F.Supp.2d 232, 236 Defendants base their Rule 11 request arguing that in its complaint CELTA failed to advise of a prior transaction whereby it sold most of......
  • Brown v. Banks Grocery Co., CASE NO. 5:12-CV-122-LLK
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 2 Marzo 2015
    ...of diversity of citizenship does not suffice to invoke the federal courts' subject-matter jurisdiction. See Soler v. P.R. Tel. Co., 230 F. Supp. 2d 232, 234 (D.P.R. 2002). At the time it filed its notice of removal, Banks also filed a copy of the complaint and answer filed in the McCracken ......
  • Request a trial to view additional results

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