VÁzquez–rijos v. Anhang

• Decision Date: 17 August 2011
• Docket Number: No. 09–1928.,09–1928.
• Citation: 80 Fed.R.Serv.3d 1155,654 F.3d 122
• Parties: Áurea VÁZQUEZ–RIJOS, Plaintiff, Appellant,v.Abraham ANHANG, Barbara Anhang, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

654 F.3d 122

80 Fed.R.Serv.3d 1155

Áurea VÁZQUEZ–RIJOS, Plaintiff, Appellant,

v.Abraham ANHANG, Barbara Anhang, Defendants, Appellees.

No. 09–1928.

United States Court of Appeals, First Circuit.

Heard Nov. 2, 2010.Decided Aug. 17, 2011.

Nicolás Nogueras Cartagena, with whom Patricia Ramírez Gelpí was on brief, for appellant.Luis G. Rullán–Marín, with whom Law Offices of Luis G. Rullán, PSC was on brief, for appellees.Before TORRUELLA, LEVAL,^* and LIPEZ, Circuit Judges.LIPEZ, Circuit Judge.

Plaintiff Áurea Vázquez–Rijos (“Vázquez”) sued her deceased husband's parents, Abraham and Barbara Anhang, seeking a share of his apparently sizable estate. More than three years after the suit was filed, the district court dismissed it with prejudice due to Vázquez's noncompliance with court orders, her many lengthy delays in prosecuting the suit, and her failure to serve Barbara Anhang. Vázquez appeals, arguing that the district court abused its discretion. Finding no such abuse, we affirm.

I.

A. The Murder of Adam Anhang Uster

On September 22, 2005, Adam Anhang Uster was leaving a restaurant in San Juan, Puerto Rico, with Vázquez, his wife of six months, when a man attacked the pair, stabbing Adam and fracturing his skull. Vázquez was seriously wounded; Adam died that evening. Prosecutors initially secured the conviction of a man who, several months later, was exonerated by an FBI investigation. The same investigation also led a federal grand jury to indict Vázquez and one Alex Pabón Colón under 18 U.S.C. § 1958(a), which criminalizes the use of interstate commerce facilities in the commission of murder-for-hire. According to the June 4, 2008 indictment, Vázquez offered Pabón three million dollars to murder her husband and, on the fatal night, lured her husband to an agreed-upon spot in Old San Juan, where Pabón killed him. Pabón pled guilty shortly after his arrest but has not yet been sentenced.

B. Vázquez Sues the Anhangs

On March 29, 2006, six months after her husband's death, Vázquez sued Adam's parents, Abraham and Barbara Anhang, in Puerto Rico Superior Court. Vázquez alleged that the Anhangs had assumed control of Adam's estate and had prevented her from accessing the assets therein. She claimed that she is entitled to a portion of the estate under the terms of the prenuptial agreements that she and Adam had executed, as well as the provisions of the Puerto Rico Civil Code governing a widow's usufructuary interest and community property.¹ Vázquez also sought damages from both defendants to compensate for the harm caused by their “obstinate attitude and disregard of [her] physical and emotional condition and financial situation.”

Abraham Anhang was served with the summons and complaint on August 8, 2006. On August 28, the case was removed to the District Court for the District of Puerto Rico. Abraham answered the complaint on September 5, 2006. In February of 2007, the court set an initial scheduling conference for April 4. Initial scheduling conference memoranda were due March 23. See D.P.R. Cv. R. 16(a). Abraham filed his memorandum on that date; Vázquez filed her memorandum eleven days late, on April 3.

On April 4, 2007, Vázquez requested, for the first time, that the court issue a summons for Barbara Anhang.² Vázquez's motion stated that Barbara was an indispensable party to the action and that she had not yet been served. The summons was issued April 19.

Also on April 4, the court held the planned scheduling conference. The minutes reflect that the parties advised the court that some of the discovery they needed for the case was unavailable due to the pendency of a related state-court criminal suit. In an order issued the same day, the court set various discovery deadlines and explained that they would be rigorously enforced and that no extensions would be granted except upon a certified showing of good cause. The court further warned that it would not hesitate to sanction any obstinacy from the parties.

Discovery proceeded and the parties agreed that Vázquez would be deposed August 27, 2007, at defense counsel's office in Puerto Rico. She was deposed on August 27 and 28.

On September 7, Vázquez filed a motion requesting the issuance of another summons for Barbara Anhang. She explained that, because Barbara resided in Canada, Vázquez had been unable to “proceed with [the prior] [s]ummon[s] and the same has already expired.” Abraham opposed the motion, which was denied as moot after Vázquez filed a return of service reflecting that the complaint and summons had been sent in a UPS package delivered October 9. Barbara moved to dismiss the complaint due to insufficient process, insufficient service of process, and failure to join an indispensable party.³ See Fed.R.Civ.P. 12(b)(4), (5), (7).

On April 24, 2008, Abraham filed a motion to compel Vázquez to appear and continue her deposition. Defense counsel represented that efforts had been made to coordinate the deposition but that Vázquez could not return from Rome ⁴ for a deposition until August of 2008. The court granted the motion, stating that discovery would not be delayed any further. In the order, the court “forewarn[ed] Plaintiff that failure to comply may warrant the harshest of sanctions.”

On May 22, 2008, Vázquez filed a motion for reconsideration, explaining that she had become a suspect in the FBI's investigation of Adam's murder, and arguing that it was unreasonable to ask her to appear for a deposition at which she would be asked questions related to the criminal matter. Vázquez also stated that she was pregnant with twins and was advised not to travel to Puerto Rico until after her children were born. As purported evidence of the pregnancy and medical advice, Vázquez filed two documents in Italian which were not translated. The court denied the motion to reconsider on the grounds that the discovery deadline had already been extended by several months and that not all of the questions at the deposition were likely to touch upon matters that implicated Vázquez's Fifth Amendment right against self-incrimination. The court also noted that Vázquez's repeated postponements of her deposition led the court to question the credibility and reliability of the Italian medical certificate.

Despite the court's refusal to excuse Vázquez from the continuation of her deposition, she failed to appear at the appointed time. Abraham promptly moved for dismissal under Federal Rule of Civil Procedure 37.⁵ V ázquez opposed the motion and filed a handwritten note in Italian that she claimed was a statement from her doctor explaining her medical condition and confirming that the condition prevented Vázquez from returning to Puerto Rico. Once again, no translation was filed.

On June 11, 2008, Vázquez requested that the court stay the proceedings due to the criminal indictment that had just been returned against her. She argued that one of the main issues in the civil case was her entitlement to part of Adam's estate which turned to a great extent upon whether she had been complicit in his murder.⁶

In a July 2, 2008 order, the court denied both the motion to dismiss for failure to appear at the deposition and the motion to stay the proceedings. In a combined order, the court reviewed this circuit's precedent regarding the harshness of dismissing a case under Rules 37 or 41, and stated that Vázquez's noncompliant conduct was not “extreme” and that Abraham had not shown what prejudice, if any, that conduct had caused. The court also opined that Vázquez's effort to serve Barbara approximately 183 days after the summons issued was not unreasonably untimely, and gave Vázquez an additional 60 days to perfect service on Barbara. Barbara's motion to dismiss was denied as moot and another summons issued on August 29, 2008. With respect to the motion to stay, the court reiterated that not all of the questions at the deposition would potentially implicate Vázquez's Fifth Amendment privilege.

Defense counsel tried once again to depose Vázquez, on October 21, 2008, but neither Vázquez nor her counsel appeared. Shortly thereafter, on October 24, Abraham moved to dismiss the complaint under both Rule 37 and Rule 41(b), due to Vázquez's extreme delays and flouting of the court's authority and processes. After Vázquez received an extension of time to respond ⁷ but did not meet the extended deadline, Abraham filed a second motion to dismiss on December 1, 2008. The same pattern repeated ⁸ and Abraham filed a third motion to dismiss on January 8, 2009.⁹ Finally, Abraham filed a motion to dismiss for lack of prosecution on February 3, 2009. Vázquez responded to the motions on February 19, arguing again that she should not be blamed for avoiding a deposition because she had already been deposed for two days, and because her appearance in Puerto Rico was precluded by her health and that of her twin daughters, as well as the murder-for-hire indictment. Once more, she attached Italian documents she claimed were “medical certificates” regarding her twins. Vázquez also suggested that her deposition be taken by “telephone or other remote means.”

In an order issued May 29, 2009, the court dismissed the case with prejudice. It expressed its frustration with Vázquez's continued failure to appear for a deposition, especially in light of repeated warnings that discovery deadlines were strict and noncompliance with court orders would be sanctioned by dismissal. Finding the various medical certificates to be inadmissible both under Federal Rule of Evidence 802 and Local Rule 10(b), the court saw nothing in the record to justify postponement of the deposition and discovery. ¹⁰ The court also found that the failure to serve Barbara, an indispensable party, was an egregious lapse, particularly in light of the numerous extensions of time Vázquez had received to complete service. Vázquez had been warned in April, May, and July of 2008 that continued delays would result in dismissal. In...