Cortes v. Burset

909 F.Supp.2d 91

Ibrahim A. Sauri CORTES, et al., Plaintiff(s),

v.Luis Fortuno BURSET, et al., Defendant(s).

Civil No. 09–1650 (DRD).

United States District Court, D. Puerto Rico.

Dec. 20, 2012.

As Amended Nunc Pro Tunc by Supplemental Order Dec. 27, 2012.

Annabelle L. Mullen–Pacheco, Leila S. Castro–Moya, San Juan, PR, Eduardo A. Vera–Ramirez, Eileen Landron–Guardiola, Luis A. Rodriguez–Munoz, Maria L. Santiago–Ramos, Landron & Vera LLP, Guaynabo, PR, Julio Cesar Alejandro–Serrano, Bayamon, PR, for Plaintiffs.

Claudio Aliff–Ortiz, Sheila J. Torres–Delgado, Ivan M. Castro–Ortiz, Michael C. McCall, Aldarondo & Lopez Bras, Guaynabo, PR, for Defendants.

AMENDED OPINION AND ORDER NUNC PRO TUNC

DANIEL R. DOMINGUEZ, District Judge.

Pending before the Court are: (a) defendants' Memorandum of Law Requesting Summary Judgment; (b) defendants' Statement of Uncontested Facts in Support of Motion for Summary Judgement, Docket entries No. 98–99; and (c) plaintiffs' opposition thereto, Docket entries No. 111 and 112. For the reasons set forth below, the defendants' request for summary judgment is granted.

Introduction

The instant case constitutes a political discrimination case that stems from the change in administration after the New Progressive Party (“NPP”) won the elections in the year 2008. After the new Governor and defendant herein, Luis Fortuño Burset (hereinafter “Fortuño”) started his term on January 2, 2009, encountered a critical and difficult dire financial situation in the Government of Puerto Rico. Hence, severe and drastic economic measures had to be taken forthwith by Governor Fortuño to avoid a worst scenario. One of the legislative measures taken was the enactment of the Act No. 7 of March 9, 2009, 3 L.P.R.A. §§ 8791 et seq. (hereinafter “Act No. 7”), which provides for deep government spending cuts in order to cut a $3.2 billion structural deficit. See Domínguez Castro v. E.L.A., 178 D.P.R. 1 (2010),¹ wherein the Puerto Rico Supreme Court upheld the constitutionality of Act No. 7. See also United Automobile, Aerospace, Agricultural Implement Workers of America International Union, et al. v. Fortuño, et al., 633 F.3d 37 (1st Cir.2011), wherein the Act No. 7 passed federal scrutiny. One of the measures taken by Governor Fortuño was to reduce the size of the government, amongst others, including the number of the government employees designated at the Governor's mansion best known as “La Fortaleza.” ² Plaintiffs herein generally allege that they were unjustly laid off because they were members of the opposing political party, the Popular Democratic Party (“PDP”).

The instant action is premised on plaintiffs' alleged violations under the Constitution of the United States, to wit, the First Amendment, Due Process and Equal Protection Clauses, as well as violations under the Constitution of the Commonwealth of Puerto Rico, “and pray equitable relief in the form of economic and punitive damages, pursuant to the Civil Rights Act of 1866 [sic], 42 U.S.C. § 1983.” Plaintiffs, however, failed to identify the specific violations under the Constitution of the Commonwealth of Puerto Rico and/or any other Puerto Rico law albeit their request for supplemental jurisdiction. The Court deems this argument waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (explaining that legal points alluded to in a perfunctory manner, but unaccompanied by developed argumentation, are deemed abandoned); Dávila v. Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9, 14–15 (1st Cir.2007) (“A party waives a right only if he intentionally relinquishes or abandons it; he forfeits a right by failing to assert it in a timely manner.”) See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Rodríguez, 311 F.3d 435, 437 (1st Cir.2002). Hence, the matter now pending beforethe Court is the defendants' motion for summary judgment.

Factual and Procedural Background

The instant case was filed on July 13, 2009. An Amended Complaint was filed on July 30, 2009, Docket No. 10, as an action under the Civil Rights Act, 42 U.S.C. § 1983. Plaintiffs allege that they are career employees and were laid off because they were members of the PDP without first reviewing their employee file. Plaintiffs also allege in the Amended Complaint that they have not been paid their salaries, vacations, and any other benefits, as of the date of July 13, 2009, the date of the filing of the Amended Complaint. Plaintiffs further allege that “prior to the 2008 General Election each and all plaintiffs were employed at the Governor's Mansion as public employees that performed non-policy making functions.” See Amended Complaint, Docket No. 10, ¶ 4.

On September 3, 2009, the defendants filed a Motion to Dismiss under Fed.R. Civ.P, 12(b)(6) and/or for Judgment on the Pleadings Pursuant to Fed.R. Civ.P. 12(c), Docket No. 20. Plaintiffs filed their opposition on September 14, 2009, see Docket No. 24. On November 9, 2011, the Court granted in part and denied in part the defendants' motion to dismiss based on the related opinions issued by the United States Court of Appeals for the First Circuit (hereinafter the “First Circuit”), Peñalbert–Rosa v. Fortuño–Burset, et al., 631 F.3d 592 (1st Cir.2011); Ocasio–Hernández, et al. v. Fortuño–Burset, et al., 640 F.3d 1 (1st Cir.2011).

In the instant case, the Court dismissed with prejudice the plaintiffs' Equal Protection Clause claims. The Court also dismissed without prejudice all personal claims of the plaintiffs' spouses under Puerto Rico law, although the Court reserved its ruling on the conjugal partnerships and/or domestic partnerships for a later stage in the proceedings. Lastly, the Court also denied the defendants' request to assert qualified immunity at this stage of the proceedings, as well as plaintiffs' Due Process Clause claims. In the instant case, plaintiffs claim that the defendants have: (a) violated their right to due process as they are career employees under applicable Puerto Rico law; and, (b) the defendants' actions violated the Classification Plan at La Fortaleza, by failing to provide a pretermination hearing and failure to comply with the proper notice requirement.³See Opinion and Order of September 9, 2011, Docket No. 35.

The Discovery

After an intense, troublesome, rocky road through the discovery, the defendants moved the Court for summary judgment. See Docket entries No. 98 and 99. The response to the motion for summary judgment was due on June 25, 2012. See Order of May 29, 2012, Docket No. 95. Plaintiffs' opposition was filed on July 5, 2012 under Docket No. 111, after several motions for extension of time. On July 17, 2012, the defendants filed a Motion To Strike Plaintiffs' Opposing Statements of Fact, That Certain Defendants' Statements Of Uncontested Facts Be Deemed Admitted And That Summary Judgment Be Granted, Docket No. 116. On July 20, 2012, plaintiffs filed Plaintiffs' Motion To Strike Defendants Objection, Docket No. 119. However, for the reasons set forth below, plaintiffs' opposition filed under Docket No. 111 was stricken from the record for failure to comply with the Court's Orders, see Docket entries No. 132 and 141.

When considering whether to grant the motion to strike filed by the defendants under Docket No. 116, the Court had to restate the convoluted discovery track in this case, which it is summarized below.

The record shows a rather long history of disagreements amongst counsel regarding the discovery. The Court's summary starts from the latest events set forth in the Minutes of April 20, 2012, Docket No. 87, wherein the Court set a final case management Order to move the case forward. Paragraph number 4 of the Minutes, Docket No. 87, specifically provides that “[i]f the documents are not furnished on or before April 28, 2012, counsel [for plaintiffs] will be unable to use them at trial, and they will be treated as adverse evidence under the negative inference principle.” (Emphasis in the original).

On May 1, 2012, defendants moved the Court by Motion Requesting Order For Plaintiffs Not To Be Able To Use At Trial Documents Not Produced By April 28, 2012; And That They Be Deemed As Adverse Evidence Under The Negative Treatment Principle, Pursuant To Order At Docket Document No. 87, Docket No. 90. On May 2, 2012, the Court entered an Order granting the plaintiffs three business days to answer why the defendants' motion filed under Docket No. 90, should not be granted, see Docket No. 91. Plaintiffs' reply was filed on May 7, 2012 under Docket No. 92. However, on May 30, 2012, the defendants filed a Reply To Plaintiffs' Motion In Opposition To Defendants' Motion Requesting Order, Docket No. 96, wherein the defendants reiterate that the documents that plaintiffs allege were produced, as set forth in their motion filed under Docket No. 92, have not been duly disclosed, as the documents had not been produced, with a few exceptions set forth in the defendants' motion filed under Docket No. 96.

On June 6, 2012, the defendants' Memorandum Of Law Requesting Summary Judgment, as well as the Statement Of Uncontested Facts In Support Of Motion For Summary Judgment followed, see Docket entries No. 98 and 99. The amended due date to file the plaintiffs' opposition to the motion for summary judgment was June 25, 2012, see Docket entries No. 94 and 95. Notwithstanding, plaintiffs moved the Court on June 7, 2012 for an extension of time until August 25, 2012, which was granted in part and denied in part, as the jury trial was set to begin on August 20, 2012. The Court granted plaintiffs until June 29, 2012 to file their opposition, see Docket entries No. 101 and 105. Moreover, on June 29, 2012, plaintiffs filed a Plaintiffs' Emergency Motion Requesting A Final Brief Term Of Three Additional Working Days, Until 5 July 2012, To File Their Opposition To Defendants' Motion For Summary Judgment And Statement of Uncontested...