Opinion
Civil No. 01-1542 (JAG/GAG).
October 18, 2005
OPINION AND ORDER
At trial yesterday, during plaintiff José A. Reyes Cañada's direct testimony, he made the following statement in reference to counsel's question as to how he was aware of defendant Lizzette Pillich's political affiliation: " She sued the Department [of Education] for political persecution; also I read her complaint against Cesar Rey" (translation by the Court). As pandemonium was about to erupt at the defense table, the Court excused the jury and struck said statement from the evidence. The Court, however, has no doubt that the jury, which is entirely bilingual, heard the statement.
The statement was made in Spanish and was not translated.
Defendants all moved for a mistrial since the Court had clearly instructed the parties not to make mention of Pillich's lawsuit, more so the fact that Rey was a defendant therein. The Court yesterday denied the oral motions without prejudice, and, in turn, requested that the matter be submitted via motion. The Court, however, informed the parties that it felt compelled to impose a drastic sanction. Having considered the matter further, the Court, at this time, again denies without prejudice the request for mistrial. However, the Court will proceed to sanction plaintiff Reyes Cañada. The Court's reasons follow.
1. Mistrial
At this juncture, the Court is not in a position to determine whether a mistrial is warranted or not. This is so because the Court has not definitely ruled that additional evidence of the lawsuit filed by Pillich against Dr. Rey on September 29, 2005 will be further disallowed in toto. As the Court has expressed time after time during trial, a ruling as to admissibility of the lawsuit for any other purpose will be made once the issue is squarely presented, if at all. This could be during plaintiffs' case, or during the defendants' case. Should the Court, at some point in trial, admit said evidence, any prejudicial effect of plaintiff Reyes Cañada's statement may perhaps be dissipated. Contrariwise, if said evidence is not admitted, the statement may perhaps have an incurable prejudicial effect. Accordingly, the defendants' mistrial motions are hereby DENIED without prejudice.
2. Sanction Against Plaintiff Reyes Cañada
Before entering into the appropriate sanction for plaintiff's highly improper comment, some background is necessary.
Since trial commenced two weeks ago, the issue of presenting evidence to the jury of Pillich's recent lawsuit against Dr. Rey has been vigorously litigated. Initially, when attorney Hill disclosed said evidence, the Court instructed all parties not to make mention of it to the jury, until any further Court order directing otherwise. The Court, day after day, repeatedly gave the parties this very same order.
On October 13, 2005, the Court issued a written order on the matter (see Docket No. 673). In the same, it allowed a very limited use of the evidence of the Pillich-Rey lawsuit. The Court further instructed that no mention could be made of Dr. Rey as a party to the lawsuit (see Docket No. 673 at page 2). The Court also instructed the parties that any other intended use of the complaint had to be pre-announced in advance (see id). Finally the Court warned the parties that " any attempt to directly or indirectly circumvent this ruling will result in severe sanctions to the violating party" (see id.). The directives of this order could not be made any clearer.
The following day, Friday, October 14, 2005, during trial, the Court amended its ruling, to the effect that it would take judicial notice of Pillich's admissions in the lawsuit pertaining to her political affiliation. The Court, at the close of trial on said date, took judicial notice of said information and accordingly instructed the jury. Once the jury was excused, the Court instructed counsel to inform all parties of its ruling concerning Pillich's complaint. The Court stressed that no further mention of the Pillich lawsuit could be made by any party, unless the Court previously permitted so. At no time, however, did the Court vacate its October 13, 2005 order, which was only modified as to the manner in which said evidence would be disclosed to the jury.
In regards to plaintiff Reyes Cañada, the Court notes that he has been sporadically present throughout the trial, prior to his taking the witness stand. The Court, after excusing the jury, called him back to the stand and inquired about his statement. Plaintiff responded that he did not recall being informed of the Court's order by counsel; and, that, because he was working long hours in the Commonwealth Senate, he must not have been present when counsel so instructed his co-plaintiffs. He deeply apologized for his action, and prayed that if any action be taken, it be against him and not against co-plaintiffs.
Counsel for plaintiff, on the other hand, argued that apparently he had not been present when all other plaintiffs were given instructions on the Pillich-Rey matter. Also, counsel suggested that Reyes Cañada's violation of the Court's order was not willful, nor an act of bad faith. More so, counsel argued that the violation could be cured by an instruction to the jury. The Court disagrees with such characterization of the violation.
Plaintiff's arguments are further elaborated in his Motion in Compliance (Docket No. 693), filed on this date.
Fed.R.Civ.P. 41 (b) provides that " for failure of the plaintiff to . . . comply with . . . any order of Court, a defendant may move for dismissal of an action." "Although Rule 41(b) anticipates a motion by the defendant, it places no limitation on the Court's exercise of its inherent power to dismiss a case sua sponte" 8 Moore's Federal Practice § 41.50 [6] [b] (3rd ed 2005 suppl.) (citing Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962)).
A finding of bad faith is not a condition precedent to imposing a sanction of dismissal. Young v. Gordon, 330 F. 3d 76, 82 (1st Cir. 2003). Plaintiff's misconduct, however, must be extreme. Id. at 81. Disobedience of a court order may constitute extreme misconduct. Id. A Court need not exhaust lesser sanctions before ordering dismissal of an action. Latin American Music, Inc. v. Archidiocese of San Juan, 2005 WL 1847013 * 7 (D.P.R. 2005) (citing Asociación de Empleados del Instituto de Cultura Puertorriqueña v. Rodríguez Morales, 538 F. 2d 915, 917 n. 6 (1st Cir. 1976)).
A court contemplating a Rule 41 (b) dismissal must, on a case by case basis, "consider all the pertinent circumstances and balance a myriad of factors, including the trial court's need to maintain order and prevent undue delay, the prejudice (if any) to the offender's adversary, and the salutary policy favoring the disposition of cases on the merits". Id. at 82.
In the case at bar, plaintiff cannot deny he violated a Court order of significance importance. This very specific order of October 13, 2005, as amended on October 14, 2005, was preceded by the Court's repeated instructions that no mention be made by any party of the Pillich-Rey complaint, unless the Court otherwise ordered.
Reyes Cañada's ignorance of the judicial orders carries no weight before this Court. His counsel and co-plaintiffs were aware of the orders. Reyes Cañada himself has been present at Court during the case. More significant, Reyes Cañada did have the opportunity to learn that Pillich had sued Cesar Rey, and that in the complaint she admitted she was a member of the Popular Democratic Party. Just as plaintiff was able to obtain this information, he should be expected to also learn of and follow the Court's repeated instructions as to the use thereof as evidence.
The prejudice to defendants due to plaintiffs' violation is abundantly clear. Plaintiff circumvented a preclusive order of the Court premised on Fed.R.Evid. 403. More so, the evidence given by plaintiff is extremely damaging to defendants.
The Court agrees with defendants that imposing any other sanction to plaintiff would only constitute a mere slap on the wrist. His is a serious violation, which the Court cannot tolerate. If the Court cannot maintain order at trial, then all plaintiffs and defendants alike would have carte blanche to circumvent other orders of the Court precluding their use of evidence (such as that precluding all use by defendants of the plaintiffs' DE-16 forms). The fact that plaintiff, during the pretrial phase, complied with all Court orders is, therefore, inconsequential at this time.
See Docket No. 686.
The Court certainly would like to have seen the disposition of plaintiff's case on the merits after four years of litigation. However, this is one instance of egregious and blatant disregard of its orders that cannot be condoned under any circumstance. Simply put, given the delicate nature of the evidence of the Pillich-Rey complaint in regards to this case, as well as the Court's repeated orders as to its non-use, plaintiffs' ignorance simply is not an acceptable excuse.
Accordingly, the Court hereby DISMISSES all claims presented in this case by plaintiff Reyes Cañada. Judgment will be entered along with the eventual judgment in this case.
The Court will resume trial tomorrow, October 19, 2005 at 9:30 a.m. Plaintiffs shall present their next witness thereat. The Court, at said time will instruct the jury to disregard all of plaintiff Reyes Cañada's testimony, which shall be stricken from the record.
The parties are further instructed not to make any mention of the dismissal of Reyes Cañada to the jury, nor to make any further comments to the jury regarding the matter or the Court's instructions.
No oral motions for reconsideration will be accepted at the start of trial. SO ORDERED.