Opinion
Civil No. 03-1451 (PG).
May 26, 2004
REPORT AND RECOMMENDATION
On April 28, 2003, plaintiffs, Juanita Marrero Negrón and Ruth E. Cruz Marrero, filed the present medical malpractice action pursuant to Article 1802, Puerto Rico Civil Code, 31 L.P.R.A. § 5141 claiming diversity jurisdiction under 28 U.S.C. § 1332(a)(1) against Dr. Francisco Raffucci ("Dr. Raffucci"), among other co-defendants. (Docket entry #1).
Pending before the Court is a Motion for Summary Judgment, Memorandum in Support thereof and Statement of Uncontested Material Facts filed by defendant Dr. Raffucci on October 10, 2003. (Docket entry # 18). Dr. Raffucci's Motion for Summary Judgment, with its corresponding exhibits, was referred to this Magistrate Judge for report and recommendation (Docket entry #29).
Dr. Raffucci's Motion for Summary Judgment only claims that plaintiffs' action is time-barred. This same issue was originally raised by Dr. Raffucci in a previous Motion to Dismiss filed on July 17, 2003. (Docket entry # 9). The presiding judge, Hon. Juan E. Pérez-Giménez, issued an Order on April 21, 2004 denying Dr. Raffucci's Motion to Dismiss because plaintiff Marrero "promptly tolled the statute of limitations. Hence, this case is not time barred." (Docket entry #28).
A review of Dr. Raffucci's Motion for Summary Judgment reveals that he has made the same arguments originally made in his Motion to Dismiss. In fact, the Motion for Summary Judgment is a re-hashing of the original arguments included in the Motion to Dismiss but for some additional comments related to the fact that he was not included as a defendant in the original complaint and, therefore, was not summoned with a copy of said complaint.
This issue was expressly addressed by Hon. Judge Pérez-Giménez in his Order denying Dr. Raffucci's Motion to Dismiss when he indicated the following:
The fact that in the first complaint Dr. Raffucci is named as Dr. John Doe does not alter our conclusion. In the first complaint Marrero alleged the same set of facts against Dr. Raffucci as in the second and third complaints. Specifically, Marrero claimed that the doctor who treated and operated her on May 17, 1999, at Hospital Auxilio Mutuo was solidarily liable to her with Hospital Auxilio Mutuo for the damages she suffered. (See Docket No. 15, Exh. A). Dr. Raffucci was the only doctor who operated Marrero in Hospital Auxilio Mutuo on the seventeenth.
(Docket entry #28, pp. 5-6).
Therefore, the fact that Dr. Raffucci was not included as a defendant in the original compliant and was not summoned as such does not alter the Court's conclusion that the action is not time barred.
There are no additional new arguments in Dr. Raffucci's Motion for Summary Judgment that merit this Court to reconsider its prior ruling that plaintiffs' cause of action is not time barred.
Accordingly, it is recommended that defendant's Motion for Summary Judgment BE DENIED under the same grounds ruled upon by the Court when denying Dr. Raffucci's previous Motion to Dismiss.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").
IT IS SO ORDERED.