Velez-Colon v. Caribbean Produce Exchange, Inc., No. 3:2008cv01607 - Document 62 (D.P.R. 2009)
Court Description: OPINION AND ORDER. GRANTED IN PART AND DENIED IN PART 40 Emergency MOTION for Sanctions filed by Caribbean Produce Exchange, Inc. Plaintiffs' request for voluntary dismissal is DENIED. Signed by Judge Salvador E Casellas on 12/8/2009.(LB)
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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 JOSE CARLOS VELEZ-COLON Plaintiff v. 5 Civil No. 08-1607 (SEC) 6 7 8 CARIBBEAN PRODUCE EXCHANGE, INC. Defendants 9 10 OPINION and ORDER 11 On July 9, 2009, Plaintiff filed a Notice of Voluntary Dismissal Without Prejudice 12 Pursuant to F ED. R. C IV. P. 41(a)(1)(A)(i). Docket # 50. According to Plaintiff, his request for 13 dismissal stems from his inability to tolerate or handle opposing counsel s disrespectful and 14 15 brutal behavior against him. Id. at 1. According to Plaintiff, insofar as Defendant has not filed an answer to the complaint, or a motion for summary judgment, he is entitled to dismissal 16 without prejudice as a matter of right. Plaintiff further notes that prior to filing the instant 17 notice, he sent an email to opposing counsel and proposed a fresh start and subsequently 18 proposed to file a joint motion with the Court informing that [they] were able to resolve [their] 19 differences amicably, but Defendant s counsel denied his request. Id. at 1. O n e v e n d a t e , 20 Defendant filed a motion in opposition to Plaintiff s request for dismissal without prejudice, 21 averring that Plaintiff s notice is based on false statements, and is misleading to this Court. 22 Docket # 49. In support of said assertion, Defendant included the communications via email that 23 took place on July 8, 2009, between themselves and Plaintiff. 24 Upon reviewing the attached document, this Court notes that on July 7, 2009, at 11:21 p.m., Plaintiff sent an email to Defendant proposing that they file a joint motion requesting that 25 the case be dismissed without prejudice. Despite the foregoing, Plaintiff also expressed his 26 1 interest in continuing his claims against CPE. After opposing counsels rejection of said offer, 2 Plaintiff responded, and informed opposing counsel that he would request that the motion for 3 entry of default be set aside, and that new summons be issued as to Guadalberto and Luis 4 Rodriguez-Rodriguez. He continued noting that he cannot dismiss with prejudice this action 5 6 because several national authorities on the FCRA say that it is not clear if there is a permissible purpose to obtain a consumer report for business credit... Docket # 49-2. Finally, Plaintiff encouraged Defendant to file an answer to the complaint, noting that if Defendants failed to 7 do so, he might request dismissal without prejudice and [opposing counsel s] client will be 8 9 unable to recover...attorney fees. Plaintiff also stated that if Defendant did not file an answer by July 10, 2009, he would dismiss without prejudice at 1:00 p.m. and [he would] file a new 10 complaint [on July 11, 2009] and arrange the immediate service to CPE. Id. Subsequently, 11 Plaintiff noted [t]his is not an abuse of the judicial process; it[ s] an absolute legitimate right 12 that I have. Id. 13 This Court first notes that Defendant s motion to dismiss at Docket # 7, was properly 14 converted to a motion for summary judgment. See Docket # 21. Thus Plaintiff is not entitled to 15 request dismissal without prejudice under Rule 41 (a)(1)(A)(i), and instead must seek this 16 Court s leave for dismissal. As such, the instant notice of voluntary dismissal will be ruled 17 upon as a motion for dismissal pursuant to Rule 41 (a)(2). Secondly, the impropriety of 18 19 Plaintiff s actions are blatant. Despite the absence of First Circuit case law on the issue, this court has held that the semblance of judge-shopping...[] is a concern when a litigant discontinues a fray, only to start over again on another day. Vaqueria Tres Monjitas v. Rivera- 20 Cubano, 341 F.Supp. 2d 69, 71 (D.P.R. 2004) (citing Nat l Treasury Em. Union v. IRS, 765 21 22 F.2d 1174, 1175 n. 5 (D.C. Cir. 1985). A court faced with such conduct has the authority to act to preserve the integrity and control of its docket. Id. (citations omitted). Thus the abuse 23 of Rule 41, in order to harass the opposing party, or circumvent the court s orders, is highly 24 unethical, and sanctionable by this Court. 25 Plaintiff is a third year law student at the University of Puerto Rico. Despite his 26 expressions regarding his inexperience, he has filed a great number of pleadings, including a 1 30-page memorandum of law in the instant action. Moreover, he has filed additional suits in this 2 district. Specifically, Plaintiff recently filed a case with this Court, which was assigned to the 3 undersigned (Civil No. 09-1179 SEC). On July 6, 2009, Plaintiff filed a notice of voluntary dismissal without prejudice in said case, and re-filed a suit against said Defendant on the same 4 day, even before this Court s judgment of dismissal was entered in Civil No. 09-1179 (SEC). 5 Therefore, he is no stranger to manipulating this Court s procedural rules. Although he may 6 deem himself inexperienced, the First Circuit has held that law school students as pro se 7 litigants should be held to a higher standard than pro se novices. Specifically, the Appeals Court 8 dismissed as frivolous and malicious, a suit filed by a third year law student, after stating: 9 10 11 12 this is not a case involving an uneducated, naive plaintiff who may have inartistically stated a valid cause of action. . . . He comes before this Court wearing the cloak of a pro se applicant, and seeks to extract from us the solicitude ordinarily afforded one appearing without counsel. But this should not shield him from rebuke when merited. He is an intelligent, able and sophisticated litigant, who is no stranger to this Court. . . . Moreover, we are not to be manipulated by resourceful but meritless moves . . .[which] serve only to distract us from important judicial business. 13 Castro v. United States, 584 F. Supp. 252 , 264 (1st Cir. 1984) (citing Raitport v. Chemical 14 Bank, 74 F.R.D. 128, 133 (S.D.N.Y. 1977) (citations omitted). 15 Conduct unbecoming a lawyer is harshly viewed upon by courts. A law school student s 16 status as a pro se litigant does not shield herein Plaintiff from sanctions by this Court, especially 17 in light of his flagrant disregard for this Court s integrity. Thus Plaintiff is sternly reprimanded 18 for his conduct, and is warned that similar conduct in the future will be severely sanctioned. 19 Conclusion 20 Based on the foregoing, Plaintiff s notice of voluntary dismissal is DENIED. 21 IT IS SO ORDERED. 22 San Juan, Puerto Rico, this 8th day of December, 2009. 23 24 25 26 S/Salvador E. Casellas Salvador E. Casellas U.S. District Judge
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