Burgos-Yantin et al v. Municipality of Juana Diaz et al, No. 3:2007cv01146 - Document 308 (D.P.R. 2010)
Court Description: OPINION AND ORDER granting re 267 MOTION to dismiss as to Osvaldo Medina-Mercado filed by Angel Colon-Gonzalez, Gary Conde, Miguel Torres Signed by Chief Mag. Judge Justo Arenas on 7/9/2010.(nydi)
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Burgos-Yantin et al v. Municipality of Juana Diaz et al 1 Doc. 308 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 CARMEN D. BURGOS-YANTà N, et al., 5 6 Plaintiffs 7 v. 8 MUNICIPALITY OF JUANA Dà AZ, et al., 9 10 CIVIL 07-1146 (JA) Defendants 11 12 OPINION AND ORDER 13 14 As the result of a routine traffic stop by municipal police officers escalating 15 into something much more, Osvaldo Medina-Mercado was shot in the leg and 16 Miguel à ngel Burgos in the head. Burgos, a minor, died shortly after being shot. 17 18 Medina-Mercado died later but not as a result of the injury. 19 This matter is before the court on motion to dismiss claims of plaintiff 20 Osvaldo Medina-Mercado filed by the co-defendants Miguel Torres-Santiago, Gary 21 Conde-González, and à ngel Colón-González on June 10, 2010. (Docket No. 267.) 22 23 24 25 26 27 For the reasons set forth below, the co-defendants motion to dismiss the claims of plaintiff Osvaldo Medina-Mercado is hereby GRANTED. BACKGROUND Osvaldo Medina-Mercado filed a civil action on February 22, 2007, seeking money damages under 42 U.S.C. § 1983 for injuries he sustained by the co- 28 Dockets.Justia.com 1 CIVIL 07-1146 (JA) 2 2 3 defendants alleged use of excessive force, which he claims deprived him of his 4 5 constitutional and civil rights. Family members of Miguel à ngel Burgos are also 6 plaintiffs in the section 1983 suit due to the co-defendants alleged use of 7 excessive force which caused the death of Burgos ( plaintiffs ). On November 7, 8 2008, plaintiffs filed an amended complaint. (Docket No. 84.) On December 1, 9 10 2008, the co-defendants moved to strike the amended complaint because, among 11 other reasons, plaintiff Medina-Mercado was eliminated from the complaint 12 without properly voluntarily dismissing his claims pursuant to Federal Rules of Civil 13 Procedure 41. (Docket No. 90.) Plaintiffs alleged in their response to the co- 14 15 defendants motion, that the elimination of plaintiff Medina-Mercado was a mistake 16 and that there was no request for voluntary dismissal. (Docket No. 95.) The 17 court denied the motion and allowed the amended complaint. (Docket No. 98.) 18 On February 11, 2009, the co-defendants filed a motion to request the entry 19 20 of partial summary judgment dismissing plaintiff Medina-Mercado s claims. 21 (Docket No. 109.) Despite the fact that the voluntary dismissal procedure of Rule 22 41(a) was not followed, the co-defendants argued that because the amended 23 complaint was allowed and it no longer included plaintiff Medina-Mercado1, 24 judgment should be entered dismissing plaintiff Medina-Mercado s claims. The 25 26 27 28 motion was granted on the same day. (Docket No. 110.) On February 18, 2009, 1 Plaintiff Medina-Mercado was removed from the case caption, the section listed Parties , and the body of the causes of action. 1 CIVIL 07-1146 (JA) 3 2 3 plaintiffs filed a motion for reconsideration again asserting that the elimination of 4 5 plaintiff Medina-Mercado was a mistake and requesting that they be allowed to file 6 a second amended complaint to correct the mistaken elimination of plaintiff 7 Medina-Mercado. 8 (Docket No. 113.) That same day, the court vacated the February 11, 2009 order and allowed plaintiffs to file a second amended 9 10 complaint. (Docket No. 116.) 11 On February 19, 2009, the co-defendants filed a motion requesting an order 12 directing the filing of plaintiff Medina-Mercado s pleadings. The co-defendants 13 requested that plaintiffs amend the complaint to include each and all factual 14 15 16 17 18 allegations/claims asserted by Mr. Osvaldo Medina-Mercado. (Docket No. 122, at 2.) The court denied the motion on February 26, 2009. (Docket No. 125.) On March 2, 2009, the co-defendants moved to dismiss the claims of plaintiff Medina-Mercado. (Docket No. 132.) The co-defendants asserted that the 19 20 controlling amended complaint did not include what exactly is it that Medina 21 claims that each defendant aggrieved him and what kind of relief does he want. 22 Therefore the complaint should be dismissed for failure to state any claims 23 whatsoever. (Docket No. 132, at 3.) In response, plaintiffs referred to the 24 court s order of February 18, which allowed the plaintiffs to file a second amended 25 26 complaint precisely to include Mr. Medina s allegations. (Docket No. 134, at 1.) 27 The court denied the co-defendants motion to dismiss and ordered plaintiffs to file 28 1 CIVIL 07-1146 (JA) 4 2 3 a second amended complaint. (Docket No. 135.) The second amended complaint 4 5 was filed on March 16, 2009. (Docket No. 137.) 6 On January 19, 2010, plaintiff Osvaldo Medina-Mercado died. The court 7 became aware of plaintiff Medina-Mercado s death during a settlement conference 8 on February 12, 2010. On May 10, the court ordered parties to file proposed voir 9 10 dire, jury instructions and verdict forms by June 7, 2010. (Docket No. 260.) 11 Plaintiffs first mention of Medina-Mercado s death was in their motion in 12 compliance with order of May 10 and Local Rule 51. (Docket No. 265, dated June 13 8, 2010.) On June 8, 2010, in compliance with the order, plaintiffs filed a motion 14 15 adopting the proposed voir dire, jury instructions and verdict forms submitted by 16 the co-defendants with the exception of minor modifications. (Docket No. 265, 17 at 1.) In proposed jury instruction #1, plaintiffs requested that the instruction 18 include Osvaldo Medina who died before the trial. (Id.) Plaintiffs further 19 20 21 22 23 24 requested that the court add an instruction in light of the death of Plaintiff Osvaldo Medina . . . . (Id. at 2-3.) Due to plaintiff Osvaldo Medina-Mercado s death in January, the codefendants filed a motion to dismiss his claims on June 10, 2010. (Docket No. 267.) On June 11, 2010, three days before trial, plaintiffs filed an informative 25 26 motion informing the court that Osvaldo Medina-Mercado s heirs are Arleen 27 Isamar Medina-DÃaz and Michelle Medina-Márquez. 28 (Docket No. 270.) In 1 CIVIL 07-1146 (JA) 5 2 3 response to plaintiffs motion, the co-defendants suggested that the purpose of 4 5 plaintiffs informative motion is to substitute plaintiff Medina-Mercado with his 6 heirs. (Docket No. 272.) The co-defendants requested that this court dismiss 7 Medina-Mercado s claims and disregard plaintiffs motion because plaintiffs failed 8 to properly substitute a party by not complying with the requirements of Federal 9 10 11 Rule of Civil Procedure 25(a). (Docket No. 267.) Plaintiffs did not file an opposition to the motion to dismiss prior to trial. 12 DISCUSSION 13 The co-defendants have once again requested that the court dismiss the 14 15 claims of plaintiff Osvaldo Medina-Mercado. The co-defendants argue that 16 Medina-Mercado s claims have been extinguished due to his death. Alternatively, 17 the co-defendants argue that the claims should be dismissed because a motion to 18 substitute plaintiff Medina-Mercado has not been filed pursuant to Federal Rule of 19 20 21 Civil Procedure 25(a). A. Survival of Medina-Mercado s claims 22 Pursuant to Federal Rule of Civil Procedure 25(a), [i]f a party dies and the 23 claim is not extinguished, the court may order substitution of the proper party. 24 The co-defendants move this court to dismiss plaintiff Medina-Mercado s claims 25 26 27 28 arguing that his claims have been extinguished due to his death. 1 CIVIL 07-1146 (JA) 6 2 3 In order to determine whether or not plaintiff Medina-Mercado s claims are 4 5 extinguished, his claims must first be identified, then a determination must be 6 made as to whether such claims survive his death. The original complaint has 7 been amended, however, and the second amended complaint does not include 8 claims asserted by plaintiff Medina-Mercado. Despite the court having allowed 9 10 plaintiffs to file a second amended complaint precisely to include Mr. Medina s 11 allegations , the second amended complaint only added plaintiff Medina-Mercado 12 to the caption and in the PARTIES section. (Docket Nos. 84, 134 and 137.) 13 As the co-defendants alleged in their first motion to dismiss on March 2, 14 15 2009, [i]t is black letter law that [a]n amended complaint, once filed, normally 16 supersedes the antecedent complaint and that consequently once an amended 17 complaint is filed the earlier complaint is a dead letter and no longer performs any 18 function in the case. (Docket No. 132, at 2, quoting Connectu LLC v. 19 20 21 Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008)). The second amended complaint also does not include plaintiff Medina- 22 Mercado s allegations. 23 Medina-Mercado s causes of action, and as the co-defendants contended in their 24 (Docket No. 137.) Plaintiffs did not specify plaintiff prior motion to dismiss, plaintiffs failed to plead exactly what [their] claims are 25 26 ... so that defendants could adequately mount a defense against them. (Docket 27 No. 132, at 4.) It is not sufficient to simply include plaintiff Medina-Mercado in the 28 1 CIVIL 07-1146 (JA) 7 2 3 caption and the Parties section of the second amended complaint. See 5A 4 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1326 6 (footnotes omitted) ( references to prior allegations must be direct and explicit, 7 in order to enable the responding party to ascertain the nature and extent of the 8 incorporation. ). 9 10 Consequently, plaintiff Medina-Mercado s claims should be dismissed 11 because the second amended complaint lacks any claims alleged by plaintiff 12 Medina-Mercado. See Kolling v. Am. Power Conversion Corp., 347 F.3d 11, 16 13 (1st Cir. 2003) ( By omitting the common law employee claim from the amended 14 15 complaint, Kolling abandoned it. ); see also 6 Charles Alan Wright, Arthur R. 16 Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice & Procedure § 1476 17 (3d ed.) ( Once an amended pleading is interposed, the original pleading no 18 longer performs any function in the case . . . . ). 19 20 However, assuming that it was error to eliminate plaintiff Medina-Mercado s 21 claims, a generous assumption, a determination must be made as to whether his 22 claims, as alleged in the original complaint, survive his death. It is unlikely that 23 plaintiff Medina-Mercado s claims, as alleged in the initial complaint, would be 24 extinguished upon his death. 25 26 27 28 In the original complaint, plaintiff Medina-Mercado asserted violations of his constitutional and civil rights under 42 U.S.C. § 1983. In Moor v. Alameda 1 CIVIL 07-1146 (JA) 8 2 3 County, . . . the U.S. Supreme Court recognized that 42 U.S.C. § 1983 does not 4 5 address the issue of the survivorship of civil rights actions upon the death of a 6 plaintiff or a defendant. It stated that [a]lthough an injured party s personal 7 claim was extinguished at common law upon the death of either the injured party 8 himself or the alleged wrongdoer . . . it has been held that pursuant to § 1988 9 10 state survivorship statutes which reverse the common-law rule may be used in the 11 context of actions brought under § 1983. Ferrer Encarnación v. Betancourt y 12 Lebrón, 855 F. Supp. 528, 529 (D.P.R. 1994) (quoting Moor v. Alameda County, 13 411 U.S. 693, 702-03 n.14 (1973)). However, [i]n Puerto Rico, no survivorship 14 15 statute exists concerning tort cases in general. But the Puerto Rico Supreme 16 Court has stated that a survivorship statute is unnecessary because survivorship 17 is encompassed within the remedial character of Puerto Rico tort law as expressed 18 in P.R. Laws Ann. tit. 31, § 5141 (1991), which states that [a] person who by an 19 20 act or omission causes damage to another through fault or negligence shall be 21 obliged to repair the damage so done. Ferrer Encarnación v. Betancourt y 22 Lebrón, 855 F. Supp. at 529-30. 23 24 In Ferrer, the court was faced with determining whether a civil action under section 5141 was extinguished with the death of the defendant. Id. at 529-30. 25 26 The court analyzed Vda. De Delgado v. Boston Ins. Co., 101 D.P.R. 598 (1973), 27 101 P.R. Offic. Trans. 824 (1973), and concluded that an action under section 28 1 CIVIL 07-1146 (JA) 9 2 3 5141 survives the death of the defendant. Ferrer Encarnación v. Betancourt y 4 5 Lebrón, 855 F. Supp. at 530. The Delgado court held that although very personal 6 rights do not survive, a cause of action in tort set out in P.R. Laws Ann. tit. 31, 7 § 5141 (1991) is not in the list of very personal rights which die with the 8 person. Ferrer Encarnación v. Betancourt y Lebrón, 855 F. Supp. at 530. 9 Therefore, plaintiff Medina-Mercado s claims would have survived upon his 10 11 death, as they were originally pled. 12 B. 13 Substitution of Parties Under Federal Rule of Civil Procedure 25(a)(1), [i]f a party dies and the 14 15 claim is not extinguished, the court may order substitution of the proper party. 16 If substitution of the party is not timely made, the action by . . . the decedent 17 must be dismissed. Fed. R. Civ. P. 25(a)(1). Under Rule 25(a)(1), a statement 18 noting the death must be suggested on the record and the motion to substitute 19 20 must be filed within 90 days after service of that statement. Proper service of a 21 statement noting death needs be served on the parties as provided in Rule 5 and 22 on non-parties as provided in Rule 4. Fed. R. Civ. P. 25(a)(3); see Grandbouche 23 v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990). 24 First, there must be a formal suggestion of death filed on the record. See 25 26 Grandbouche v. Lovell, 913 F.2d at 836 ( The running of the ninety-day 27 limitations period under Rule 25(a)(1) is not triggered unless a formal suggestion 28 1 CIVIL 07-1146 (JA) 10 2 3 of death is made on the record, regardless of whether the parties have knowledge 4 5 of a party s death. ). Rule 25 does not specify which party should file and serve 6 a statement noting the death, however, once a party dies, his attorney has no 7 authority to add anything to the record. Atkins v. City of Chicago, 547 F.3d 869, 8 873 (7th Cir. 2008) (citing 7C Charles Alan Wright, Arthur R. Miller & Mary Kay 9 10 Kane, Federal Practice and Procedure: Civil § 1955 (3d ed. 2007)). 11 Second, the suggesting party must serve the suggestion of death in the 12 same manner as service of the motion to substitute. In Atkins, the Seventh 13 Circuit acknowledged that if the suggestion of death is filed by the opposing 14 15 party, that party is not required to serve a successor or representative if he 16 doesn t know who that is, and so the 90-day period starts to run from the filing 17 of the suggestion. Atkins v. City of Chicago, 547 F.3d at 873 (citing George v. 18 United States, 208 F.R.D. 29, 32 (D. Conn. 2001)). However, [t]he other side 19 20 21 22 23 24 25 26 27 28 can protect itself by telling the moving party who the successor or representative is . . . . Atkins v. City of Chicago, 547 F.3d at 873. Here, a statement suggesting death has not been filed upon the record nor has a motion to substitute the party been filed. Mercado s claims are dismissed. Therefore, plaintiff Medina- 1 CIVIL 07-1146 (JA) 11 2 3 CONCLUSION 4 5 6 7 In view of the above, the co-defendants motion to dismiss the claims of plaintiff Osvaldo Medina-Mercado is hereby GRANTED. At San Juan, Puerto Rico, this 9th day of July, 2010. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge
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