Sanchez-Pineiro v. Department of Housing and Urban Development et al, No. 3:2008cv01374 - Document 54 (D.P.R. 2008)
Court Description: ORDER denying 35 Motion to Set Aside Judgment; granting 46 Motion to Dismiss; denying 52 Motion to Remand to State Court. Signed by Judge Raymond L. Acosta on 12/16/08. (ans)
Download PDF
<![CDATA[
Sanchez-Pineiro v. Department of Housing and Urban Development et al Doc. 54 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 LUZ SANCHEZ PIÑERO, 4 Plaintiff, 5 v. 6 7 8 CIVIL NO. 08-1374 (RLA) DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants. 9 10 ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO SET ASIDE PARTIAL JUDGMENT AND MOTION TO REMAND 11 12 Currently before the court for disposition are plaintiff’s 13 Motion to Set Aside Partial Judgment (docket No. 35), the federal 14 defendant’s Motion to Dismiss (docket No. 46) and plaintiff’s request 15 for remand (docket No. 52). 16 17 18 The court having reviewed the arguments presented by the parties as well as the evidence on record hereby disposes of the outstanding motions as follows. I. PROCEDURAL BACKGROUND 19 This action arose due to plaintiff’s damages allegedly resulting 20 from her fall due to a slippery substance while walking down the 21 stairs at the V&B Apartments in Barceloneta, Puerto Rico. 22 23 24 25 26 Named defendants to the complaint were: United States DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (“HUD”) and EXCELLENCE MANAGEMENT AUDITS AND REALTY, CORP. (“EMARCO”). The claims asserted against HUD are premised on the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680 whereas EMARCO’s Dockets.Justia.com 1 CIVIL NO. 08-1374 (RLA) Page 2 2 liability is based on negligence as provided for in art. 1802 of the 3 Puerto Rico Civil Code, P.R. Laws Ann. tit. 4 31, § 5141 (1990). On September 10, 2008 (docket No. 33), the court issued a 5 partial judgment dismissing the claims asserted against codefendant 6 EMARCO as time-barred.1 7 Plaintiff has moved the court to set aside EMARCO’s dismissal 8 arguing that this action is not time-barred inasmuch as defendants to 9 these proceedings are joint tortfeasors and the administrative claim 10 submitted to HUD on April 3, 2007 pursuant to 28 U.S.C. § 2675(a) 11 tolled the statute of limitations as to both. 12 13 Subsequently, HUD petitioned dismissal of the claims asserted against it. Plaintiff did not oppose HUD’s motion but rather, she concurred with the arguments set forth by the federal defendant in 14 support of the dismissal and requested instead remand of the claims 15 asserted against EMARCO to the state court.2 16 Because we find the arguments advanced by HUD in its motion to 17 18 19 dismiss dispositive of the issues set forth by plaintiff in support of her motion to vacate EMARCO’s partial judgment, we shall address them first. 20 II. MOTION TO DISMISS 21 First, we must note that the United States of America is the 22 sole proper party defendant in an action based on negligence filed 23 under the FTCA. Roman v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000). 24 1 25 26 The court further found that jurisdiction over this codefendant. 2 there See Motion in Compliance (docket No. 52). was no in personam 1 CIVIL NO. 08-1374 (RLA) Page 3 2 Thus, plaintiff may not prosecute her negligence claim directly 3 against HUD. 4 The United States, as a sovereign, is immune from suit unless it 5 waives its immunity by consenting to be sued. See, United States v. 6 Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) 7 (“It is axiomatic that the United States may not be sued without its 8 consent and that the existence of consent is a prerequisite for 9 jurisdiction.”); Bolduc v. United States, 402 F.3d 50, 55 (1st Cir. 10 2005) (United States immune except to extent it waives its immunity); 11 Dynamic Image Tech., Inc. v. United States, 221 F.3d 24, 39 (1st Cir. 12 13 2000) (“As a sovereign nation, the United States is immune from liability except to the extent that it consents to suit.”); Day v. Massachusetts Air Nat’l Guard, 167 F.3d 678, 681 (1st Cir. 1999) 14 (“[a]s sovereign, the United States may not be sued for damages 15 without its consent.”) Limitations to the sovereign immunity of the 16 United States such as the FTCA must be strictly construed and are not 17 18 subject to waiver. Patterson v. United States, 451 F.3d 268, 270 (1st Cir. 2006); Dynamic Image Tech., 221 F.3d at 39. 19 The FTCA waives the sovereign immunity of the United States “in 20 the same manner and to the same extent as a private individual under 21 like circumstances.” See, Sosa v. Alvarez-Machain, 542 U.S. 692, 700, 22 124 S.Ct. 2739, 159 L.Ed.2d 718 (2005) (FTCA designed to remove 23 immunity from torts similar to private individuals); Santoni v. 24 Potter, 369 F.3d 594, 602 (1st Cir. 2004) (“[FTCA] provides a limited 25 congressional waiver of the sovereign immunity of the United States 26 for torts committed by federal employees acting within the scope of 1 CIVIL NO. 08-1374 (RLA) Page 4 2 their 3 4 5 employment [similar to private parties in similar circumstances]”); Roman v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000) (“FTCA waives the sovereign immunity of the United States with respect to tort claims”). 6 Pursuant to the FTCA, the United States is liable for the 7 negligence of its employees. Government employees are defined as 8 “officers or employees of any federal agency.” 28 U.S.C. § 2671. 9 Federal agencies in turn are “instrumentalities or agencies of the 10 United States but does not include any contractor with the United 11 States.” Id. Hence, it is axiomatic that the federal government will not be 12 13 liable for the negligence of independent contractors. United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue 14 v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973); 15 Larsen v. Empresas El Yunque, Inc., 812 F.2d 14 (1st Cir. 1986); 16 Brooks v. A.R. & S. Enterprises, Inc., 622 F.2d 8, 10 (1st Cir. 1980). 17 18 An independent contractor relationship exists in situations where the United States does not have the authority to control the 19 contract’s performance. Logue, 412 U.S. at 523. In this vein, the 20 determining factor is, “whether the United States directs the manner 21 in 22 contract.” Brooks, 622 F.2d at 11. The “key question [is] ‘whether 23 the day-to-day operations of the agency were supervised by the 24 Federal Government.’” Larsen, 812 F.2d at 15 (quoting Orleans, 425 25 U.S. at 815). “If day-to-day control over the contractor exists, the 26 which the contractor carries out its obligations under the United States is liable for injuries caused by the negligence of the 1 CIVIL NO. 08-1374 (RLA) Page 5 2 contractor’s employees. We must determine, therefore, whether the 3 United States maintained sufficient control over the daily operations 4 of [the independent contractor] to 5 liability 6 employees”. Brooks, 622 F.2d at 10-11. for the negligence of subject [the the independent government to contractor’s] 7 It is important to note, however, that “‘[t]he right to inspect 8 does not nullify the general rule that the government is not liable 9 for torts of independent contractors.’” Larsen, 812 F.2d at 15 10 (quoting Brooks, 622 F.2d at 12). See also, Perez v. United States, 11 594 F.2d 280, 287 (1st Cir. 1979). In this case it stands undisputed that at all times relevant HUD 12 13 had no interest in or control over the V&B Apartments. It did not provide rental subsidies or any other financial assistance to the 14 property where the alleged incident occurred. Additionally, HUD was 15 not the financier or insurer of the mortgage securing the V&B 16 Apartments. 17 18 In other words, the V&B Apartments were not owned by HUD; were not under its control, and do not fall under HUD’s regulatory 19 jurisdiction. 20 jurisdiction over the accident site. As such, HUD is not liable for 21 the alleged lack of illumination of the area nor any purported 22 dangerous condition which caused plaintiff’s fall. 25 26 HUD did not have any control or Additionally, in its motion to dismiss the federal defendant 23 24 Consequently, notes that the United States DEPARTMENT OF AGRICULTURE, RURAL 1 CIVIL NO. 08-1374 (RLA) Page 6 2 DEVELOPMENT (“RD”), does have an interest in the V&D Apartments.3 3 However, it is uncontroverted that RD’s interest does not include the 4 5 supervision of the daily operations and maintenance of the apartment complex at issue. 6 As correctly pointed out by the Government, federal funding and 7 the right to inspect to ensure compliance with a federal contract 8 terms and conditions does not render the United States liable for the 9 negligent acts or omissions of an independent contractor. Further, in 10 this case, the Government’s position that RD was not responsible for 11 the day to day operations or maintenance of the physical facilities 12 13 comprising the V&B Apartments is unchallenged. Accordingly, the Motion to Dismiss filed by the United States of America (docket No. 46) is GRANTED and the claims asserted against 14 HUD are hereby DISMISSED. 15 III. MOTION TO SET ASIDE PARTIAL JUDGMENT 16 Plaintiff has moved the court to set aside the Partial Judgment 17 18 issued on September 10, 2008 (docket No. 33) dismissing the claims asserted against codefendant EMARCO as time-barred. In essence, 19 plaintiff avers that she tolled the limitations period by means of an 20 extrajudicial claim submitted to the United States, EMARCO’s alleged 21 joint tortfeasor. 22 23 In its opposition to plaintiff’s request, EMARCO raises two separate arguments in support of the validity of the Partial 24 3 25 26 V&B Apartments is a rental housing project financed by a direct government loan from the Rural Rental Housing Program, 42 U.S.C. § 1485. It also receives rental assistance payments under the Rental Assistance Program, 42 U.S.C. 1490a. 1 CIVIL NO. 08-1374 (RLA) Page 7 2 Judgment. First, codefendant contends that any entreaties made to the 3 United States did not have any tolling effect on the claims asserted 4 against it. Additionally, EMARCO argues that plaintiff having twice 5 moved for voluntary dismissal of her suits she is now precluded from 6 filing yet a third complaint. 7 8 The following summarizes the relevant events for purposes of the statute of limitations in this case: 1/22/06 Plaintiff’s accident. 10 3/16/064 Complaint filed in state court. 11 5/18/06 Case removed to federal court. 5/26/06 Plaintiff’s request for voluntary dismissal in federal 9 12 case. 13 5/30/06 Judgment dismissing federal case upon plaintiff’s 14 request for voluntary dismissal. 15 *** Plaintiff’s request for voluntary dismissal in state 16 court case. 17 9/27/06 18 Judgment dismissing state court case upon plaintiff’s request for voluntary dismissal. 19 4/3/07 Plaintiff submitted administrative claim to HUD. 20 9/24/07 Plaintiff’ claim letter to EMARCO. 21 9/28/07 HUD denied plaintiff’s administrative claim. 22 3/28/08 Instant complaint filed. 23 24 25 26 4 The complaint was stamped twice by the Clerk of the Court, once on March 16, 2006 and the other on March 23, 2006. However, for purposes of this Order this difference is immaterial. 1 CIVIL NO. 08-1374 (RLA) Page 8 2 A. Twice Dismissed Rule 3 According 4 occurred on to the January evidence 22, 2006, before and us, plaintiff’s plaintiff filed her accident initial 5 complaint in the Manati state court on March 16, 2006 [CD06-332]. 6 Codefendant HUD removed the state action to federal court on or about 7 May 8, 2006,5 where it was assigned Civ. No. 06-1452. Thereafter, on 8 May 26, 2006, plaintiff requested voluntary dismissal of the federal 9 suit. Judgment of dismissal was entered on May 30, 2006, pursuant to 10 11 12 13 Rule 41(a)(1) Fed. R. Civ. P. At some point plaintiff also requested dismissal of the Manati proceedings which the local court granted without prejudice on September 27, 2006, pursuant to P.R. Civ. P. Rule 39.1(a)(1). Codefendant raises the “two-time filing” rule which provides 14 that a voluntary dismissal filed pursuant to Rule 41(a)(1)(A) Fed. R. 15 Civ. P. is without prejudice “[b]ut if the plaintiff previously 16 dismissed any federal-or-state-court action based on or including the 17 18 same claim, a notice of dismissal operates as an adjudication on the merits.”6 19 Thus, the relevant inquiry for purposes of this Order is whether 20 Manati case CD06-332 and the removed action, i.e., Civ. No. 06-1452, 21 are two separate suits or should be deemed only one for purposes of 22 the “twice dismissed” rule. 23 24 25 5 See Notice of Removal (docket No. 1) in Civ. No. 06-1452. 26 6 P.R. Civ. P. Rule 39.1(a)(2) essentially provides the same. 1 CIVIL NO. 08-1374 (RLA) Page 9 2 Removal to the federal court merely entails continuation of the 3 original suit in a different forum based on the complaint initially 4 filed in state court. “After removal of an action from state court, 5 the federal district court acquires full and exclusive subject matter 6 jurisdiction over the litigation. The case will proceed as if it had 7 been brought in the federal court originally.” 14C Charles Alan 8 Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and 9 Procedure § 378 p. 390 (3d ed. 1998). 10 Based on the foregoing, we must conclude that both the state and 11 federal removal actions are but the continuation of one. Accordingly, 12 13 EMARCO’s argument for dismissal based on the twice dismissed provision established in Rule 41(a)(1)(A) is found inapposite to the situation at bar. 14 B. Timeliness 15 In Puerto Rico, the applicable period for instituting actions 16 sounding in tort is one year as provided for in P.R. Laws Ann. tit. 17 18 19 31, § 5298 (1990). This term may be tolled either via: (1) judicial proceedings, (2) extra-judicial claims, and (3) acknowledgment of the debt by the person liable. § 5303. 20 (I) Judicial Proceedings 21 As previously noted, pursuant to § 5303 one of the options 22 available 23 instituting judicial proceedings. The tolling takes effect by the 24 mere filing of the complaint - without regard to service of process 25 or 26 the for fact tolling that the the one-year court may limitations eventually be period found is to by lack jurisdiction - and lasts until the judicial proceedings have come to 1 CIVIL NO. 08-1374 (RLA) Page 10 2 an end. Martínez Arcelay v. Peñagaricano, 145 D.P.R. 93 (1998); 3 Agosto v. Municipio de Rio Grande, 143 D.P.R. 174 (1997); Durán4 5 Cepeda v. Morales-Lebrón, 112 D.P.R. 623 (1982); Moa v. Commonwealth, 100 P.R.R. 572, 589 (1972). 6 Once the judicial proceedings have concluded7 the full one-year 7 term will commence to run anew. De León Crespo v. Caparra Center, 147 8 D.P.R. 797 (1999); Silva-Wiscovich v. Weber Dental Mfg. Co., 119 9 D.P.R. 550 (1987); Durán-Cepeda. See also, Rodriguez Narvaez v. 10 Nazario, 895 F.2d 38, 43 (1st Cir. 1990). (ii) Extra Judicial Claims 11 12 13 It is plaintiff's burden to establish the adequacy of an extrajudicial claim which complies with the pertinent legal requirements. González Rodríguez v. Wal-Mart, Inc., 147 D.P.R. 149 (1998). See 14 also, Acosta Quiñones v. Matos Rodríguez, 135 D.P.R. 668, 675 (1994) 15 16 17 18 19 20 21 22 23 24 25 26 7 The Puerto Rico Supreme Court has determined that in those particular instances wherein plaintiff voluntarily desists from his claim pursuant to P.R. R. Civ. P. Rule 39.1(a)(1) - before the opposing party has answered the complaint or filed a summary judgment request - the new limitations period will run from that date and not from the date when pertinent judgment is issued by this court. This is so because at that particular point in the proceedings the plaintiff still has an unconditional right to withdraw his claim. Thus, in cases falling within the provisions of Rule 39.1(a)(1) the judgment acknowledging plaintiff’s will is a mere formality. [T]he filing of the notice of dismissal with the court puts an end to the litigation and, thus, is the date on which a new period of limitations begins to run. The unequivocal expression of the intent to dismiss the action conclusively determines that the interruptive effect of the judicial action ceased. Subsequent events, such as the date on which the court renders judgment, files and serves notice of the same, or the date on which the judgment becomes final and unappealable, have nothing to do with the effectiveness of said expression of intent and are therefore totally irrelevant. Garcia Aponte v. Commonwealth of P.R., 1994 P.R.- Eng. 909243, 135 D.P.R. 137 (1994). 1 CIVIL NO. 08-1374 (RLA) Page 11 2 (it behooves claimant to prove the extra-judicial claim by direct or 3 circumstantial evidence). 4 In order for extra-judicial claims to effectively toll the 5 statutory period the demand must be made by the injured party or his 6 representative to the person responsible for the damages, prior to 7 the lapse of the statutory period, and 8 of 9 Rodríguez. The demand need not comply with any formal requirement. 10 However, it must convey an unequivocal desire by an injured party not 11 to lose a right when threatened to lose it. Acosta Quiñones, 135 12 13 action alleged in the must relate to the same cause complaint. De León Crespo; González D.P.R. at 675 (quoting Zambrana Maldonado v. E.L.A., 129 D.P.R. 740, 752 (1992)). That is, “it must require or demand the same conduct or relief ultimately sought in the subsequent lawsuit.” Tokyo Marine and 14 Fire Ins. Co., Ltd., 142 F.3d 1, 5 (1st Cir. 1998) (citing Rodriguez 15 Narvaez, 895 F.2d at 44). 16 (iii) The Facts 17 18 We shall begin by examining the previous related judicial proceedings to ascertain whether or not they effectively tolled the 19 applicable limitations period. However, in order to properly assess 20 the potential tolling effect of these prior cases, we must first 21 consider the nature of the removal process and its consequences on 22 the underlying local proceedings. 23 Once the party seeking removal has complied with all the 24 necessary legal measures provided for in 28 U.S.C. § 1446, the local 25 court is proscribed from acting any further in the state case. 26 “[R]emoval is effected by the defendant taking three procedural 1 CIVIL NO. 08-1374 (RLA) Page 12 2 steps: filing a notice of removal in the federal court, filing a copy 3 of this notice in the state court, and giving prompt written notice 4 to all adverse parties” Wright & Miller § 3737 p. 381, whereupon “the 5 State court shall proceed no further unless and until the case is 6 remanded.” 28 U.S.C. § 1446(d). 7 Upon movant having met the aforementioned procedural 8 requirements, “the state court is divested of jurisdiction... [and] 9 must stop all proceedings unless and until the case is remanded. Any 10 state action after the filing of the removal notice is void, even if 11 the case is subsequently remanded... Further, the state court has no 12 13 authority to act after a federal court dismisses rather than remands a case.” 16 James Wm. Moore et al., Moore’s Federal Practice - Civil ¶ 107.31. 14 Plaintiff’s first complaint was filed in the Manati state court 15 on March 16, 2006, well within the one-year limitations period.8 16 However, upon the case being removed to the federal forum the local 17 18 action vanished for all practical purposes and merged with Civ. No. 06-1452. The Manati court had no authority to take any further action 19 in CD06-332 once the United States perfected the removal process in 20 May 2006. Hence, the judgment issued by the local court on September 21 27, 2006, is void and could have had no valid tolling effect. 22 Based on the foregoing, even though we take the date of filing 23 of the initial local complaint as the start of the tolling period, 24 25 26 8 The accident occurred on January 22, 2006. 1 CIVIL NO. 08-1374 (RLA) Page 13 2 the date when the federal removed proceedings concluded is the 3 relevant one for purposes of when the tolling period ceased. 4 The removed federal action concluded in May 20069 and the instant 5 suit was filed on March 28, 2008, that is, over one year subsequent 6 thereto. This would render plaintiff’s negligence claim against 7 EMARCO stale unless plaintiff effectively tolled the limitations 8 period via other means provided for in § 5303. 9 Plaintiff alleges that the administrative claim presented to HUD 10 on April 3, 2007, as mandated by 28 U.S.C. § 2675(a), also operated 11 as an extrajudicial demand with respect to EMARCO because both 12 13 defendants are purportedly joint tortfeasors. While it is true that pursuant to § 5304 tolling as to one tortfeasor will affect all other persons jointly liable for the 14 damages, see, Tokyo Marine, in this case HUD10 is not liable for the 15 allegedly negligent circumstances propitiating plaintiff’s fall. 16 Specifically, based on the uncontested evidence on record, we have 17 18 19 20 21 previously concluded in this Order that the federal government had no duty of care regarding the allegedly dangerous condition of the premises where plaintiff’s unfortunate accident took place. Thus, any extra judicial demands made upon the United States could have no possible tolling effect on codefendant EMARCO. 22 23 9 24 25 26 For purposes of our ruling, it is immaterial whether this period is calculated from the filing of plaintiff’s voluntary dismissal request on May 26, 2006, or from the date when the corresponding Judgment was entered on May 30, 2006. 10 Or any other federal agency for that matter. 1 CIVIL NO. 08-1374 (RLA) Page 14 2 Plaintiff did forward EMARCO a letter on September 24, 2007. 3 Assuming this correspondence complied with the prerequisites for a 4 valid extra-judicial claim under § 5303, it was forwarded to EMARCO 5 well beyond the one-year term plaintiff had available to prosecute 6 her claim against codefendant which term commenced to run anew at the 7 end of May 2006. 8 9 Based on the foregoing, we find that plaintiff’s claim against EMARCO is time-barred. IV. REQUEST FOR REMAND 10 11 12 13 Plaintiff conceded that no viable claim exists against HUD and petitioned the court for remand of the remaining cause of action against EMARCO. However, apart from the fact that the claims asserted against codefendant EMARCO are time-barred, remand is not a legally 14 feasible option for plaintiff in these proceedings inasmuch as this 15 case was initiated in the federal forum. 16 V. CONCLUSION 17 18 Based on the foregoing, it is hereby ORDERED as follows: - The Motion to Dismiss filed by the United States of America 19 (docket No. 46) is GRANTED and the claims asserted against 20 HUD 21 accordingly. 22 - are hereby DISMISSED. Judgment shall be entered Plaintiff’s Motion to Set Aside Partial Judgment (docket No. 35)11 is DENIED. 23 24 25 11 26 See Response in Opposition (docket No. 41), Reply (docket No. 42) and Sur-Reply (docket No. 43). 1 CIVIL NO. 08-1374 (RLA) Page 15 2 3 4 5 Plaintiff’s Motion in Compliance and Requesting Remand (docket No. 52)12 is DENIED. IT IS SO ORDERED. San Juan, Puerto Rico, this 16th day of December, 2008. 6 7 S/Raymond L. Acosta RAYMOND L. ACOSTA United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 12 See Federal Defendant’s Opposition (docket No. 53).
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
