Opinion
CIVIL NO. 99-1627 (JAG)
April 18, 2002
MEMORANDUM AND ORDER
Defendants Eli Lilly and Company ("ELC") and several of its individual officers and/or employees, including: Randall Tobias ("Tobias"), Brenda Juarbe ("Juarbe"), Anthony G. Sykes ("Sykes") and Thomas Chisler ("Chisler") moved to dismiss this action f or lack of in personam jurisdiction, alleging that they had insufficient contacts with Puerto Rico. (Docket No. 5). The Court referred the pending motion to U.S. Magistrate Judge Justo Arenas for a report and recommendation. In a comprehensive and well-reasoned report, the Magistrate Judge recommended that the motion for summary judgment for lack of in personam jurisdiction over defendants be GRANTED. Plaintiffs, however, have filed objections to said recommendation, which the court now considers. After reviewing the objections, the Court ADOPTS the Report and Recommendation. (Docket No. 17).
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. 28 U.S.C. § 636 (b)(1)(B); Fed.R.Civ.P. 72(b); Local Rule 503. The losing party may contest the Report and Recommendation by filing written objections within ten days of being served with a copy of the Report and Recommendation. 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. 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 objection are waived on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992).
FACTUAL BACKGROUND
The factual background and legal analysis are taken from the Magistrate-Judge's Report and Recommendation.
Plaintiff Jorge Morales ("Morales") began working at Lilly del Caribe, Inc. ("LCI") in August of 1987. Presently, he is an engineer associate in LCI's maintenance department. Plaintiff Jimmy Varela ("Varela") began working for LCI's Carolina plant in June of 1989 and currently holds the position of maintenance team leader.
As maintenance employees of LCI, both Morales and Varela worked directly with dust collectors and ventilation systems at the Carolina plant and were thus exposed to dust and product powder. The only protection used by these employees when handling product powder was a 3M mask. Plaintiffs allege that their exposure to products and dangerous substances at LCI's Carolina plant led to the chronic hepatic condition (liver disease) which they now suffer. Neither Morales or Varela has ever been employed by LCI's parent company, ELC.
In a effort to seek redress for their injuries, Morales, Varela, and their families, filed the present lawsuit on June 8, 1999, against defendant ELC and several of its individual officers and/or employees, including: Tobias, Juarbe, Sykes and Chisler. In their complaint against the parent company of their employer, Morales and Varela seek damages for the defendants' alleged negligent failure to provide a safe workplace.
ELC is a global research-based pharmaceutical corporation, incorporated under the laws of the state of Indiana with its principal place of business in Indianapolis. Codefendants Juarbe, Sykes and Chisler are all employees of ELC's facilities in Indianapolis, and residents of Indiana. Co-defendant Tobias was ELC's former Chief Executive Office. ELC is the sole owner of LCI, a corporation organized under the laws of the Cayman Islands with its principal place of business in Puerto Rico, where plaintiffs were employed.
DISCUSSION
In diversity suits this Court's power to assert in personam jurisdiction over a nonresident defendant is governed by the Puerto Rico long-arm statute. See Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994). The Puerto Rico long-arm statute extends personal jurisdiction to the constitutionally permissible limits of the Due Process Clause. See Pritzker, 42 F.3d at 60; see also Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995); Ind. Siderugica v. Thyssen Steel Caribbean, 114 D.P.R. 548, 558 (1983). "The Due Process Clause dictates that a non-resident defendant have at least minimum contacts with the forum jurisdiction, so that the defendant can reasonably anticipate being haled into that forum's court." E E Inv., Inc. v. Simmons Co., 169 F.R.D. 467, 472-73 (D.P.R. 1996) (citing International Shoe Co. v. Washington, 326 U.S. 310 (1945); McGee v. International Life Ins. Co., 355 U.S. 220 (1957); hanson v. Denckla, 357 U.S. 235 (1958)).
Because defendants motion for summary judgment relied on pleadings, affidavits and supporting documents, Morales and Varela needed to make a prima facie showing of jurisdiction based on "specific facts alleged in submitted pleadings, affidavits, and exhibits." See E E Inv., Inc. v. Simmons Co., 169 F.R.D. at 472 (citing U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d 9, 11 (1st Cir. 1990)); see also Ticketmaster-New York, Inc. v. Ahoto, 26 F.3d 201, 204 (1st Cir. 1994); Rosa v. Philip Morris Prod., Inc., R.I., 975 F. Supp. 161, 164 (D.P.R. 1997) (citing Ealing Corp. v. Harrods, Ltd., 790 F.2d 978, 979 (1st Cir. 1986); Rivera v. Bank One, 145 F.R.D. 614, 616 (D.P.R. 1993)). "Ordinarily, plaintiff[s] cannot rest upon the pleadings, but [are] obliged to adduce evidence of specific facts." Foster-Miller, Inc. v. Babcock Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995).
In determining whether the defendants were subject to the Commonwealth's jurisdiction, the Magistrate Judge entertained the following arguments and evidence proffered by Morales and Varela:
1) Varela and Morales' assertion that Tobias, in his capacity as ELC's president, assured his obligation to the employees' health and safety. (Docket No. 8, plaintiffs' statement of facts, No. 49.);
2) Varela and Morales' contention that Juarbe, Sykes and Chisler, formulated, recommended, monitored, supervised or actively participated in the implementation of specific safety measures at LCI's Carolina plant (Docket 17 at 12);
3) Varela and Morales' claim that ELC was in control of LCI's safety matters.
Varela and Morales also specifically asserted that ELC had control over LCI's safety matters because (Docket 17 at 17):
(1) ELC's personnel constantly visited LCI to deal with safety issues; (Id.)
(2) during said visits ELC's employees made recommendations as to the procedures that needed to be followed to have a safe work environment; (Id.)
(3) ELC published literature (i.e., the employee handbooks) where it mentioned the importance of a healthy and safe work environment, and the company's commitment to safety; (Id.); and
(4) the inspection of the LCI's equipment was conducted based on the protocols provided by ELC. Id.
The Magistrate Judge determined, however, that the arguments and evidence proffered by Morales and Varela were insufficient to make a prima facie showing of personal jurisdiction over the defendants. The Magistrate Judge first noted that plaintiffs did not claim that Tobias, Juarbe, Sykes or Chisler ever conducted personal business in Puerto Rico. (Docket 17 at 9). See Alvarado-Morales v. Digital Eqtiip. Corp, 843 F.2d 613, 617 (1st Cir. 1988); Hernandez v. Union Caribe Corp., 642 F. Supp. 1000, 1001 (D.P.R. 1986). He found that there was "no evidence of Tobias' control or authority over the safety measures implemented at LCI, nor over its day to day operations." (Docket 17 at 10). See Diaz v. Becton Dickinson Co., S.A., 618 F. Supp. 539, 542 (D.P.R. 1985). He also observed that there was "no evidence in the record that showed that Juarbe, Sykes and Chisler, formulated, recommended, monitored, supervised or actively participated in the implementation of any specific safety measure at LCI's Carolina plant." (Docket 17 at 12). He then noted that Morales and Varela only proffered conclusory statements to support their contention that ELC controlled the activities of LCI relative to the health and safety matters of the Carolina plant (Docket 17 at 16), and had failed to point out specific events supporting their allegation that ELC controlled health matters at LCI's facilities. (Docket 17 at 17). He found that ELC only "provided general and occasional assistance to LCI relative to the plant's safety", and that there was no evidence in the record suggesting that ELC conducted any business in Puerto Rico, other than having a subsidiary, LCI. (Id.) Finally, he concluded that "LCI was solely responsible for the implementation of safety precautions at the Carolina plant." (Docket 17 at 15).
In the alternative, Morales and Varela argued that, even though they had proffered sufficient facts to establish the Court's personam jurisdiction over defendants, they should also be afforded the opportunity to pursue discovery under Rule 56(f) of the Federal Rules of Civil Procedure. (Docket 17 at 18). Morales and Varela, however, did not file a properly supported Rule 56(f) motion requesting additional time for discovery prior to opposing defendants' motion, nor did they make an alternative proffer through any other mechanism provided by law. Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988). The Magistrate Judge, therefore, found that plaintiffs had failed to make a showing warranting discovery and, thus, recommended that plaintiffs' attempt "to seek refuge under Rule 56 (f) be denied." (Docket 17 at 19).
Plaintiffs filed timely objections to the Magistrate-Judge's Report and Recommendation. (Docket No. 21). Plaintiffs' objections, however, are a slightly revised version of the original plaintiffs' Opposition to the Motion for Summary Judgment. See Lopez v. Chater, 8 F. Supp.2d 152, 155 (D.P.R. 1998) (Dominguez, D.J.). In Lopez, the Court specifically admonished plaintiff's counsel, because the objections "barely complie[dl with the rule's requirements to the objectionable parts of the Magistrate-Judge's report." Id. Here, plaintiffs' counsel has not made a serious effort to heed the warnings issued by this Court in prior cases. Not only do the objections fail to comply with Local Rule 510.2 for lack of specificity, but they also simply restate the arguments that the Magistrate-Judge considered. Plaintiffs cannot do this and then expect the Court to treat their filing seriously. The Court has, therefore, reviewed de novo the Report and Recommendation without the benefit of any new arguments of substance embodied in plaintiffs' objections and finds there is no reason why it should not be adopted in toto.
CONCLUSION
Accordingly, upon consideration, of the well-reasoned report and recommendation of the Magistrate Judge, as well as the timely objections filed by the parties and after having independently and thoroughly reviewed the record, the Court adopts the report and recommendation in its entirety. Judgment shall be entered dismissing the Complaint with prejudice.