Hodge v. American Home
Opinion
USCA1 Opinion
May 27, 1994 [Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-2091
WALTER HODGE,
Plaintiff, Appellant,
v.
AMERICAN HOME ASSURANCE COMPANY, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Cyr, Boudin, and Stahl,
Circuit Judges.
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Carlos R. Noriega for appellant.
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John E. Mudd with whom Dario Rivera-Carrasquillo and Cordero,
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Miranda & Pinto were on brief for appellees.
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Per Curiam. Plaintiff-appellant Walter Hodge
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appeals the district court's grant of defendant-appellees',
American Home Assurance Co. and Underwriter Adjustment Co.,
motion to dismiss with prejudice. We affirm.
I.
I.
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BACKGROUND
BACKGROUND
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Plaintiff filed a complaint on October 3, 1989,
alleging that defendants had failed to reimburse him for
damages to his insured property resulting from a series of
earthquakes on the island of St. Martin. Defendants argued
that the damages were the result of faulty construction and
therefore exempt from coverage.
On the eve of the trial and almost four years after
the date of filing of the complaint, defendants filed a
motion in limine, seeking to disqualify plaintiff's liability
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expert for lack of qualifications. The motion was granted
and thereafter, plaintiff's counsel sought to withdraw as
counsel, claiming irreconcilable differences with his client.
This motion was denied and the trial began as scheduled.
During opening arguments, in clear disregard of
Fed. R. Evid. 408, plaintiff's counsel referred to an offer
of settlement apparently made by defendants. After
sustaining defendants' objection and warning plaintiff's
counsel not to refer to settlement negotiations, the court
instructed the jury to disregard counsel's remark.
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2
Notwithstanding the court's admonition, plaintiff's counsel
resumed his opening by telling the jury that the defendants
were unwilling to settle. Defendants objected and
immediately moved for a mistrial. After discussion with both
parties, the court declared a mistrial and informed
plaintiff's counsel that "Upon request of counsel I will
impose what I consider a non resident bond, to defray some
costs in this case." Plaintiff's counsel did not object.
On May 10, 1993, the court issued a written order
setting forth its reasons for declaring a mistrial. In the
same order, the court also granted defendants' D.P.R.L.R.
3041 motion requesting plaintiff post a $3000 non-resident
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1. D.P.R.L.R. 304 states, in relevant part, that:
When the plaintiff is domiciled
outside of Puerto Rico or is a foreign
corporation, a bond shall be required to
secure the costs, expenses and attorneys'
fees which may be awarded. All
proceedings in the action may be stayed
until bond is posted, which shall not be
less than $250.00. The Court may require
an additional bond upon a showing that
the original bond is not sufficient
security, and may stay the proceedings in
the action until such additional bond is
given.
After the lapse of sixty (60) days
from the service of the order requiring
bond or additional bond, without bond
having been posted, the Court may dismiss
the action.
This rule shall be liberally
interpreted in favor of the plaintiff so
as not to preclude his or her right to
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bond "to secure the costs, expenses and attorneys' fees which
may be awarded." Plaintiff neither objected to nor
complied with this order. Subsequently, defendants filed a
verified, detailed bill of costs in the amount of $73,079.99
for expenses incurred in preparation for the defense,
together with a motion requesting the non-resident bond be
increased to $50,000. The court granted defendants' motion.
Again, plaintiff neither objected to nor complied with this
court order.
After plaintiff had ignored the court's bond order
for sixty days, the time prescribed by D.P.R.L.R. 304,
defendants moved to dismiss the action pursuant to Fed. R.
Civ. P. 41(b)2 and D.P.R.L.R. 304.
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sue through excessive bond requirement.
Consistent with this, the Court, for good
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cause shown, may dispense with this
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requirement. (emphasis supplied).
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