Bonilla-Aviles v. Southmark
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Bonilla-Aviles v. Southmark, (1st Cir. 1993).
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2365
GUILLERMO BONILLA-AVILES,
MARIA VELAZQUEZ, C/P BONILLA-VELAZQUEZ,
Plaintiffs, Appellants,
v.
SOUTHMARK SAN JUAN, INC., ET AL,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Friedman,* Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
John Ward Llambias for appellants.
__________________
Maria Soledad Ramirez Becerra with whom Mercado & Soto was on
______________________________ _______________
brief for appellee Saint James Security, Inc.
Ricardo L. Rodriguez Padilla for appellee Southmark San Juan,
_____________________________
Inc.
Ray Fargason, Harding, Bass, Fargason, Booth & Calfin and Maria
____________ ________________________________________ _____
Teresa Agudo Loubriel on brief for appellee Calypso Water Sports, Inc.
_____________________
____________________
May 12, 1993
____________________
_____________________
*Of the Federal Circuit, sitting by designation.
FRIEDMAN, Senior Circuit Judge. The United States District
____________________
Court for the District of Puerto Rico dismissed the
plaintiffs' diversity tort suit on two grounds: (1) that
the Puerto Rico statute of limitations barred the suit and
(2) that dismissal was warranted because of one of the
plaintiffs' repeated failures to comply with the court's
pretrial orders. We affirm the dismissal on the limitations
ground and, therefore, find it unnecessary to reach the
second ground.
I
On April 4, 1991, the plaintiffs, Mr. Bonilla and
his wife, filed a diversity action in the United States
District Court for the District of Puerto Rico against the
defendants. The complaint alleged that on February 5, 1990,
while Mr. Bonilla was a guest at the Sands Hotel in Puerto
Rico and as a result of the hotel's negligence, he suffered
various injuries when he was struck in the head with a
volleyball while in the Jacuzzi area. The complaint sought
damages of $1,450,000.00.
More than 16 months later, following repeated
failures of Mr. Bonilla to comply with various pretrial
(including discovery) orders of the court, the court granted
the defendants' motion for summary judgment and dismissed
- 2 -
the complaint. The court held: (1) that Puerto Rico's one-
year tort statute of limitations barred the suit, since (a)
the suit was filed 14 months after the alleged injury and
(b) Mr. Bonilla had not established any of the statutory
grounds for tolling the statute; and (2) that dismissal "is
also based on plaintiff's failure to comply with court
orders."
II
As noted, Puerto Rico has a one-year statute of
limitations for all tort actions. P.R. Laws Ann. tit. 31,
5298(2) (1991). Since the complaint was filed 14 months
after Mr. Bonilla allegedly was injured, on its face it
appears untimely under the statute.
Puerto Rico, however, has a tolling statute which
provides:
Prescription of actions is
interrupted by their
institution before the courts,
by extrajudicial claim of the
creditor, and by any act of
acknowledgment of the debt by
the debtor.
Id. 5303 (1991).
___
The plaintiffs here contend, as they did in the
district court, that three letters tolled the statute.
These letters were referenced and apparently attached to
- 3 -
motions the plaintiffs filed, but the letters were,
nevertheless, not part of the record before the district
court. The court rejected the tolling contention on the
following ground:
Defendants have shown that the
action was filed more than one
year after the incident
occurred. Plaintiff, as the
non-moving party, must now
produce evidence to create an
issue of fact as to whether
the statute of limitations was
tolled or not. Plaintiff
alludes to letters stating
extrajudicial claims which he
states were sent to the
defendant. However, none of
these letters are included in
the record. Without these
letters, which we need in
order to determine whether or
not the statute of limitations
was tolled under Puerto Rico
law, we cannot proceed. We,
therefore, grant defendants'
summary judgment motion
because plaintiff has failed
to fulfill his burden of
production.
Since the plaintiffs have the burden to support
their claim that the statute was tolled, their failure to
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