Opinion
Civil No. 95-2057 (JAG)
August 9, 2002
Linda Backiel, San Juan, PR, Dennis A. Simonpietri-Monefeld, Tres Rios Building, San Patricio, Guaynabo, PR, ATTORNEYS (Plaintiffs).
Jo-Ann Estades-Boyer, Commonwealth Department of Justice, Federal Litigation Division, San Juan, PR, Jose L. Gandara, Bauza Davila, San Juan, PR, ATTORNEYS (Defendants).
OPINION AND ORDER
Plaintiffs Carl Palermo (hereinafter, "Palermo") and Empress Hotel (hereinafter, "Empress") (collectively, "plaintiffs") filed this Complaint on August 23, 1995. On September 29, 1995, plaintiffs filed an amended Complaint. (Docket No. 49.) Co-defendant, defendant, Commonwealth of Puerto Rico, filed a motion to dismiss on August 25, 1998. (Docket No. 60.) On October 7, 1998, plaintiffs voluntarily dismissed their claim against the Commonwealth. (Docket No. 66.) On November 4, 1998, Judge Casellas issued a partial judgment dismissing all claims against co-defendant Commonwealth. (Docket No. 67.) On February 28, 2001, plaintiffs filed a second amended Complaint. (Docket No. 137.) Plaintiffs now seek equitable relief, inter alia, for due process and equal protection violations against defendants the Commonwealth through its Planning Board, the Regulations and Permits Authority (hereinafter, "ARPE", its Spanish Acronym), and ARPE's former director, Eleazar García Marrero (hereinafter, "García") in his personal capacity. The Commonwealth and García in turn have filed a motion to dismiss based on res judicata because of the partial summary judgment entered by Judge Casellas dismissing all claims against the Commonwealth and because the pertinent statute of limitations on the claims against García has run. (Docket No. 141.) The Court referred this motion to Magistrate-Judge Justo Arenas for a Report and Recommendation. On November 29, 2001, Magistrate Judge Arenas recommended that the Court grant defendants' motion (Docket No. 155). On December 14, 2001, plaintiffs filed objections to the report and recommendation (Docket No. 158).
This case was originally assigned to U.S. District Judge Hector M. Laffitte. (Docket No. 1.) It was transferred to U.S. District Judge Salvador E. Casellas on November 26, 1997. (Docket No. 52.) Judge Casellas transferred it to this judge's docket on August 8, 2000. (Docket No. 115.)
Plaintiffs' second amended Complaint seeks: to nullify the current zoning map, declare invalid the Planning Board's resolution, which changed the zoning classification where plaintiffs' property is located, and monetary damages. Plaintiffs claim that the Empress is similarly situated yet treated differently from other area hotels. Plaintiffs state that the resident's association conspired with the municipality of Carolina, its mayor José Aponte de la Torre, the Planning Board and its director Patria Custodio, ARPE and its director, García, and the Commonwealth through its Planning Board and ARPE, to deprive him of his constitutional rights because of his ethnicity. Plaintiffs further claim that this alleged disimilar treatment caused him loss of revenue, mental anguish and physical suffering. (Docket No. 137, Second Amended Complaint ¶¶ 101-125.)
Defendants have not opposed plaintiffs' objections to the Magistrate Judge's Report and Recommendation.
Pending before the Court are plaintiffs' objections to Magistrate-Judge Arenas's Report and Recommendation. Specifically, plaintiffs object to: (1) the Magistrate-Judge's recommendation that plaintiffs' claims for equitable relief against the Commonwealth be barred because of res judicata; and (2) that the claims against García be barred because of the one-year statute of limitations set forth in P.R. Laws Ann. tit. 31, § 5298 (1990).
After careful review of the Magistrate Judge's Report and Recommendation (Docket No. 33), the Court ADOPTS it in its entirety.
FACTUAL BACKGROUND
On January 30, 1989, the Planning Board approved the re-zoning of the area where the Empress is located from an RT-5 zoning classification (tourist zone) to an RT-4 zone. The rezoning would turn the areas adjoining the Empress from high-density to low-density, which would restrict the Empress's music and dance activities. (Docket No. 137, Second Amended Complaint ¶¶ 13-15.) Following the re-zoning, the municipality of Carolina sought preliminary and permanent injunctive relief in the Puerto Rico Superior Court against the Empress's music and dance activities relying on defendant García's representation. Municipio de Carolina v. Empress Hotel, Civil FPE89-0213 (JR) (hereinafter, "the Carolina case"). Based on García's representation, the Carolina court granted the request for an injunction. The injunction would allow plaintiffs to operate a guesthouse with soft music if they obtained a special permit from ARPE. Plaintiffs sought reconsideration, and later certiorari before the Puerto Rico Supreme Court, to no avail.
Plaintiff does not specify what was García's "representation" in the Carolina court.
Plaintiffs thereafter tried to obtain a special permit from ARPE, as required by the Carolina Court. In 1992, during the course of obtaining the permit the Carolina court required, ARPE agents allegedly told plaintiffs they could have music and dance at the Empress without a separate permit. Nonetheless, on July 13, 1992, ARPE denied the request and determined "that plaintiffs' property (Empress) was located on a lot zoned as (RT-5), according to the current Carolina map" and concluded that `plaintiffs' proposed use (for music and dance) was prohibited in "RT-5" zones." (Docket No. 137, Second Amended Complaint ¶¶ 78 and 82.) ARPE's permit denial also cited additional violations for the improper use of signs, terraces, and parking lots at the Empress. Palermo contends that ARPE's permit denial was arbitrary and motivated by his Italian-American ethnicity.
As a result of ARPE's denial, plaintiffs pursued an administrative appeal. In August, 1993, ARPE denied the appeal on the grounds that the plaintiff had operated a swimming pool, a terrace with bar, and a music and dance area without authorization. (Docket No. 137, Second Amended Complaint ¶¶ 79-89.) As a result of the administrative appeal denial, plaintiffs filed suit in Federal Court on August 23, 1995, while still awaiting ARPE's grant of a final permit for music and dancing, as required by the Carolina injunction.
In June, 1995, the plaintiffs' private investigator reviewed the Planning Board's file related to the zoning resolution pursuant to which plaintiffs' property had been changed from an RT-5 zone to an RT-4 zone classification and determined that documents required by law were missing from the file. It was during this investigation that plaintiffs allegedly discovered a conspiracy to violate their civil rights by the Commonwealth, through its Planning Board, its director, Patria Custodio, as well as ARPE, García, Municipio de Carolina and its mayor Jose Aponte de la Torre.
On October 26, 1996, the new ARPE regional director granted plaintiffs a use permit for the operation of a night club, cabaret, restaurant, dance area, hotel, and related uses in the RT-5 district. Palermo contends that notwithstanding the permit, the zoning map continues to show the Empress is zoned as RT-4. (Docket No. 137, Second Amended Complaint ¶¶ 97-99.)
DISCUSSION
I. Standard of Review
A district court may, on its own motion, refer a pending matter to a United States Magistrate-Judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Rule 503, Local Rules, District of Puerto Rico. Pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 510.2, the adversely affected party may contest the report and recommendation by filing written objections "[w]ithin ten days of being served" with a copy of the order. 28 U.S.C. § 636(b)(1). The Court must then make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Lopez v. Chater, 8 F. Supp.2d 152, 154 (D.P.R. 1998). The Court may accept, reject or modify, in whole or in part, the Magistrate-Judge's recommendations. "Failure to raise objections to the report and recommendation waives [that] party's right to review in the district court and those claims not preserved by such objections are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992) (citations omitted).
II. Motion to Dismiss Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court accepts all well-pled factual allegation as true and draws all reasonable inferences in plaintiff's favor. Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 93 (1st Cir. 2000); Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n of New England Inc., 37 F.3d 12, 14 (1st Cir. 1994). To survive a motion to dismiss the plaintiffs must "set forth factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory." Tompkins, 203 F.3d at 93. Even when all inferences must be made in plaintiffs' favor, the Court need not credit "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). The Complaint will be dismissed if under the facts alleged, the Court finds that the plaintiffs will not "prevail on any possible theory." Berezin v. Regency Sav. Bank, 234 F.3d 68, 70 (1st Cir. 2000); Tompkins, 203 F.3d at 93.
III. Plaintiffs's First Objection to the Recommended Dismissal
based on Res Judicata:
Palermo first objects to the Magistrate-Judge's Recommendation that plaintiffs' claim for equitable relief be dismissed because of res judicata. The Magistrate Judge concluded that Judge Casellas' partial judgment of November 4, 1998 (Docket No. 67.) bars plaintiffs from raising any equitable relief claims against the Commonwealth. Plaintiffs, on the other hand, claim that Judge Casellas' partial judgment did not specify whether the equitable relief claims were dismissed. Plaintiffs further contend that the Commonwealth's motion to dismiss only addressed monetary damages and that they voluntarily dismissed only the monetary damages. (Docket No. 158.) The Court disagrees with the plaintiffs.
Judge Casellas' partial judgment did not specify what type of claims it was dismissing. (Docket No. 67.) The partial judgment simply granted the Commonwealth's motion to dismiss in light of the plaintiffs voluntary dismissal and the Commonwealth's motion to dismiss. The plaintiffs' voluntary dismissal contained no limitation. The plaintiffs merely state: "the parties agree with the government's argument and consents [sic] to the dismissal and/or withdrawl of the claim against the Commonwealth." (Docket No. 66). In that same dismissal, the plaintiffs state that their intention was to pursue the claims against the government officials in their individual capacities. This leads the Court to believe that they were not interested in pressing any claims against the Commonwealth.
Judge Casellas' subsequent actions in this case provide further support to our understanding of the November 4, 1988 partial judgment. (Docket No. 67.) On March 30, 2000, the Court granted partial summary judgment against defendant Norma Burgos. (Docket No. 114.) In the March 30, 2000, partial judgment the Court drew a clear distinction between the claims for monetary damages and the claims for injunctive and declaratory relief. The Court made very clear that the latter were being maintained while the former were being dismissed. The Court, however, made no similar distinction when it dismissed the claims against the Commonwealth on the November 4, 1998 partial judgment. (Docket No. 67.) Nor did the Court give any indication that the injunctive and declaratory relief claims were being maintained.
Neither plaintiffs' motion nor Judge Casellas' partial summary judgement gave any indication that the voluntary dismissal of the claim against the Commonwealth would be without prejudice. If the plaintiffs wished to pursue an equitable claim against the Commonwealth, they should have stated so explicitly in their motion for voluntary dismissal. As a result, the Court concludes that Judge Casellas' partial judgment dismissed all claims against the Commonwealth both equitable and monetary. The Court, therefore, adopts the Magistrate Judge's Report and Recommendation dismissing all claims against the Commonwealth and its agencies.
IV. Plaintiffs's Second Objection to the Recommended Dismissal
based on the Running of the Statute of Limitations
Palermo's second objection is to the Magistrate Judge's Recommendation that plaintiffs claims against García, in his personal capacity, be barred by the statute of limitations.
42 U.S.C. § 1983 does not set forth a limitations period for claims brought thereunder. While federal law governs the date of accrual of the cause of action, federal courts borrow the limitations period and tolling doctrine from state law. See Carreras-Rosa v. Alves-Cruz, 127 F.3d 172, 174 (1st Cir. 1997); Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994). Under Puerto Rico law, the applicable limitations period for personal injury actions — and, consequently, for plaintiffs' § 1983 claim — is one year. See P.R. Laws Ann. tit. 31, § 5298 (1990); Carreras-Rosa, 127 F.3d at 174. Under federal law, the one-year period begins to run when the aggrieved party "knows or has reason to know of the injury on which the action is based." Carreras-Rosa, 127 F.3d at 174; Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir. 1992).
After analyzing the facts in this case, the Court finds that plaintiffs knew or should have known during 1989 about García's allegedly illegal conduct. Plaintiffs' second amended Complaint points out that they did not learn about García's involvement in an alleged conspiracy to violate their civil rights until June 1995 through their private investigator. (Docket No. 137 ¶ 94.) Plaintiffs, however, contend that a Carolina Court, relied on García's representation when it entered a permanent injunction prohibiting music and dance activities in the Empress as far back as May 31, 1989. (Docket No. 137, ¶ 63.) During the Court proceedings in Carolina Superior Court in 1989, the plaintiffs knew or should have known about the extent and nature of García's and the Commonwealth's alleged actions against them. Although they claim to have found out in 1995 as a result of their private investigator's visit to the Planning Board and review of the rezoning files from 1989 to 1995, plaintiffs have not given any reasonable explanation for their six year delay in filing the original Complaint nor their additional two year delay in adding García to the amended suit as defendant for the first time in 1997. If plaintiffs had any concerns about the legitimacy surrounding the re-zoning by the Planning Board and denial by ARPE of the permits for their property by ARPE or the role that García may have played in such a denial, they should have been more diligent. As Magistrate Judge Arenas points out: "At best, plaintiff named García Marrero as a defendant 26 months after he knew or should have known of his involvement (when he filed his initial Complaint in 1995) and at worst he named him some seven years later." (Docket No. 155 at 7.) The Court concurs with Magistrate Judge Arenas that "plaintiffs' second amended Complaint does not point to any reason for this delay" and like the Magistrate Judge "neither does the Court encounter a possible explanation in any of the pleadings." id. The record, therefore, points to only one conclusion: plaintiffs' claims against García were brought after the one-year statute of limitations had run.
García was first joined as a defendant in the Amended Complaint filed in September 1997. (Docket No. 49.)
Accordingly, the Court adopts the Magistrate Judge's Recommendation. Plaintiffs' claims under 42 U.S.C. § 1983 and 1985 against García are time barred, and must be DISMISSED with prejudice.
CONCLUSION
After analysis and review of the Magistrate-Judge's Report and Recommendation, the Court ADOPTS it in its entirety. (Docket No. 155). Partial judgment shall be entered in accordance with this opinion.