Morales v. Instituto Comercial De Puerto Rico

Page 62

40 F.Supp.2d 62

Idanis Garcia MORALES, et al., Plaintiffs, v. INSTITUTO COMERCIAL DE PUERTO RICO JURIOR COLLEGE, et al., Defendants.

No. Civ. 97-1766(SEC).

United States District Court, D. Puerto Rico.

March 2, 1999.

Jesus R. Rabell-Mendez & Pedro J. Salicrup, Rosello-Rentas & Rabell-Mendez, San Juan, PR, for plaintiffs.

Luis N. Blanco-Matos, San Juan, PR, for defendants.

OPINION AND ORDER

CASELLAS, District Judge.

This case is before the Court on plaintiffs' motion (Docket # 13) to alter or amend the above-captioned judgment entered on March 16, 1998 (Docket # 12), dismissing their complaint with prejudice. For the reasons set forth below, plaintiff's motion (Docket # 13) is hereby DENIED in part and GRANTED in part.

Background

This is an action for alleged sex discrimination due to pregnancy and disability discrimination. Before addressing the issues at hand, a brief account of the procedural history of this case is in order. On July 10, 1995, plaintiff Idanis García Morales was discharged by her employer, defendant Instituto Comercial de Puerto Rico Junior College ("ICPR"). Thereafter, García Morales filed a discrimination charge against ICPR before the Anti-Discrimination Unit of the Puerto Rico Department of Labor. This agency referred the charge to the Equal Employment Opportunity Commission ("EEOC") for dual filing purposes. On June 5, 1996, the EEOC issued a notice of right to sue, commonly referred to as a "right to sue letter." Accordingly, on August 12, 1996, García Morales, and co-plaintiffs Edgar Rafael Rivera de Jesús, her husband, and the conjugal partnership formed by them, filed suit in the district court, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the American with Disabilities Act, 42 U.S.C. § 12117(a) et seq.; 42 U.S.C. § 1988; and 28 U.S.C. § 1331. Supplemental jurisdiction was invoked pursuant to 28 U.S.C. § 1367, in connection with various state claims. That case was numbered Civil No. 96-1975.

After their counsel withdrew from the case, plaintiffs experienced difficulty in securing a replacement. On December 19, 1996, the Court granted plaintiffs thirty days to acquire new counsel. On February 3, 1997, the Court granted plaintiffs an extension of time, and instructed them to secure representation by February 24, 1997. The Court advised plaintiffs that no further extensions would be granted. By February 26, no appearance had been entered on behalf of plaintiffs, so the Court dismissed their complaint without prejudice, pursuant to Fed.R.Civ.P. 41(b) (See Docket # 14 in Civ. No. 96-1975).¹ Post-trial motions were filed and denied, and an appeal ensued.

On May 15, 1997, plaintiffs filed the complaint in the instant action which, aside from some insignificant variances, is identical to the one filed on August 12, 1996. Again plaintiffs claimed discrimination due to pregnancy and disability discrimination, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the American with Disabilities Act, 42 U.S.C. § 12117(a) et seq.; 42 U.S.C. § 1988; and 28 U.S.C. § 1331. Again they invoked supplemental jurisdiction for their state law claims. Defendants answered on August 5, 1997, denying all the material allegations of the complaint.

About a week later, on August 14, the Court ordered the parties to show cause why the case should not be dismissed, considering that plaintiffs' federal causes of action under Title VII had to be filed within 90 days of receipt of the right to sue letter from the EEOC, 42 U.S.C. § 2005e-5(f)(1), and plaintiffs filed their complaint more than 350 days after the EEOC issued its authorization.² The parties complied. On March 16, 1998, the Court dismissed plaintiffs' second complaint under the rationale of Chico Velez v. Roche Products, Inc., 971 F.Supp. 56 (D.Puerto Rico 1997) (Casellas, J.), aff'd, 139 F.3d 56 (1st Cir. 1998), reasoning that the dismissal of the first complaint had left the situation as if the suit had never been brought. Thus, since the second complaint was filed long after the 90-day period following the issuance of the right to sue letter had expired, their action was time-barred. The Court further found that there were no equitable factors present which merited the tolling of the 90-day statute of limitations (see Docket # 11).

On March 27, 1998, plaintiffs filed the motion now before the Court. They are requesting that the Court set aside its judgment dismissing this action or, alternatively, that the Court amend its judgment so the dismissal of their state causes of action be without prejudice to whatever rights they may have to prosecute them in the courts of Puerto Rico. We will in turn address each of plaintiffs' arguments in support of their motion.³

Rule 59(e)

"Rule 59(e) motions are aimed at reconsideration, not initial consideration." FDIC v. World University, Inc., 978 F.2d 10, 16 (1st Cir.1992) (citations and internal quotations omitted). It permits a party to direct a district court's attention to newly discovered material evidence or a manifest error of law or fact, enabling it to correct its own errors, and thus avoid unnecessary appellate procedures. See Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir.1997). The decision whether to alter or amend a judgment under Rule 59(e) is entrusted to the sound discretion of the trial court. See Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir.1991) (citations omitted). "A district court's denial of a Rule 59(e) motion, although final and appealable, may be reversed only for a manifest abuse of discretion." Id. (citations omitted).

Failure to Assert Statute of Limitations Defense

Defendants did not plead statute of limitations as a defense in their answer to the complaint (See Docket # 4 at 3-4). Soon thereafter, however, the Court raised and directed the parties to brief the issue in its order to show cause of August 14, 1998 (Docket # 5). In their brief in compliance with this order, plaintiffs asserted that their action was not time-barred and that, in any case, defendants had waived the statute of limitations defense by not pleading it in their answer. Plaintiffs again raise the waiver issue in their present motion.

Rule 8(c) of the Federal Rules of Civil Procedure directs that:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

In interpreting this rule, courts have held that all affirmative defenses are ordinarily waived unless pleaded in the original answer. See, e.g., Ringuette v. City of Fall River, 146 F.3d 1, 4 (1st Cir.1998); Knapp Shoes, Inc. v. Sylvania Shoe Manu. Corp., 15 F.3d 1222, 1226 (1st Cir. 1994); FDIC v. Ramirez-Rivera, 869 F.2d 624, 626 (1st Cir.1989). Therefore, "[t]o avoid waiver, a defendant must assert all affirmative defenses in the answer." McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 505 (1st Cir.1996).

The First Circuit has nevertheless recognized that "`[w]hen there is no prejudice and when fairness dictates, the strictures of [the raise or waive] rule may be relaxed.'" Conjugal Partnership v. Conjugal Partnership, 22 F.3d 391, 400 (1st Cir.1994) (quoting Jakobsen v. Massachusetts Port Authority, 520 F.2d 810, 813 (1st Cir.1975)). Accordingly, a district court should permit a party to amend its pleadings under Fed.R.Civ.P. 15(b) if prejudice does not result. See id. Also, the court may treat an affirmative defense that was not timely raised as if it had been asserted in the original pleadings, when the defense has actually been tried by the express or implied consent of the parties. See id.; Knapp Shoes, 15 F.3d at 1226; Ramirez-Rivera, 869 F.2d at 626-27. In addition, the First Circuit has held that a district court may sua sponte dismiss an action in forma pauperis pursuant to 28 U.S.C. § 1915(e)(2)(i) — previously § 1915(d)—, where from the complaint it appears that the claim has expired under the applicable statute of limitations. See Street v. Vose, 936 F.2d 38, 39 (1st Cir.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 948, 117 L.Ed.2d 117; Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir.1991).

While the present case does not strictly fit any of the foregoing exceptions, and even though the 90-day period prescribed in § 2000e-5(f)(1) is nonjurisdictional,⁴ it was within the Court's discretion to raise the statute of limitations issue on its own. First, the parties were given the opportunity to fully brief the issue. Second, while defendants did not raise the statute of limitations defense in their answer, it could be readily ascertained from plaintiffs' complaint that this action was filed long after the 90-day requirement of § 2000e-5(f)(1) had elapsed. Third, the issue was raised at a stage in which it caused plaintiffs no surprise, but enabled them to address it adequately and controvert the defense. Plaintiffs, therefore, suffered no prejudice for purposes of Rule 8(c). See Knapp Shoes, 15 F.3d at 1226 (noting that "the reason why affirmative defenses under Rule 8(c) must be pled in the answer is to give the opposing party notice of the defense and a chance to develop evidence and offer arguments to controvert the defense") (citation omitted).⁵

Plaintiffs next mount three attacks on the statute of limitations: (1) that the 90-day period was tolled by the filing of their original complaint in Civil No. 96-1975; (2) that Chico Velez should not be applied retroactively; and (3) that this is a case suitable for equitable tolling. Since...