Opinion
Case No. 04-1820 (HL/GAG).
December 2, 2004
Eduardo A. Vera Ramirez, Esq., Eileen Landron Guardiola, Esq., Julio Cesar Alejandro Serrano, Esq., Frederic Chardon Dubos Law Firm, San Juan, Puerto Rico, Attorney(s) for Plaintiff or Petitioner.
Francisco J. Colon Pagan, Esq., Colon, Colon Martinez, San Juan, Puerto Rico, Charles De Mier Le-Blanc, De Corral De Mier, Attorney(s) for Defendant or Respondent.
ORDER
On December 1, 2004 the undersigned was referred BMJ Foods Puerto Rico's Motion to Dismiss and/or for Summary Judgment. (Docket Nos. 8 and 12). After review of the complaint and uncontested facts, the Court issued a Report and Recommendation to the effect that the complaint be dismissed for failure to establish complete diversity as required by 28 U.S.C. § 1332. (Docket No. 13).
The plaintiffs now appear before the Court to request reconsideration of said Report and Recommendation, claiming that they "have raised arguments in their opposition which would cause a different result to be reached." Motion to Reconsider, p. 2 (Docket No. 15). However, the plaintiffs fail to note that their Opposition to BMJ's motion for summary judgment has been filed well past its due date. As provided in Local Rule 7.1 (b), a party has ten days to file a written objection to motions such as the one filed by BMJ. Failure to do so results in a waiver of objections to said motion. Rule 7.1 (b), Local Rules of the United States District Court for the District of Puerto Rico (2004).
In the case at bar, BMJ filed its Motion to Dismiss and/or Summary Judgment on October 7, 2004. (Docket No. 8). Plaintiffs did not file an opposition or reply until yesterday, December 1, 2004, after the undersigned had already issued his Report and Recommendation. This was done clearly beyond the ten day period established in Local Rule 7.1. In addition, at no point did the plaintiffs file a motion requesting an extension of time to file their opposition. This Court is not obligated to consider the plaintiffs untimely opposition to summary judgment.See Méndez v. Banco Popular de Puerto Rico, 900 F. 2d. 4, 7 (1ST Cir. 1990). "Rules are rules and the parties must play by them." Id. "There comes a point when the question arises who is running the court, counsel or the judge. To this there can be but one answer." Higuera v. Pueblo International, Inc., 585 F. 2d. 555, 557 (1ST Cir. 1978). Moreover, even if the Court were to accept the plaintiffs' opposition to summary judgment, the same failed to comply with Local Rule 56 (c)'s requisite statement of contested facts, for which the facts laid out in BMJ's Rule 56 (b) statement of uncontested facts are deemed admitted.
Along with its motion, BMJ filed numerous exhibits and a Local Rule 56 (b) statement of uncontested facts. (See Docket No. 8).
As a result of the preceding, and as stated in the Court's Report and Recommendation, it is clear that BMJ was a the real party of interest. As such, dismissal is appropriate for failure to establish complete diversity. Moreover, while the defendant eloquently attempts to evade the complaint's deficiencies, the fact is that "Ponderosa Restaurant in Cupey", a non-diverse party, is explicitly named as a defendant. ¶ 12, Complaint, p. 3 (Docket No. 1). The plaintiffs cannot avoid dismissal by merely alleging that said party was included as "a precautionary measure which sought to exhaust as many avenues as were available for serving the proper defendant." ¶ 6, Plaintiff's Opposition to Summary Judgment, p. 4 (See Docket No. 14). Hence the plaintiffs fail to establish complete diversity as called for by 28 U.S.C. § 1332.
Consequently, the Court hereby DENIES the plaintiffs' Motion for Reconsideration. (Docket No. 15).