United States District Court, E.D. Virginia, Norfolk Division
REBECCA BEACH SMITH CHIEF JUDGE.
matter comes before the court on the Motion to Dismiss and
Memorandum in Support (collectively, "Motion")
filed by Defendant, COMtek Communication Technologies, Inc.
("COMtek"), on May 12, 2017. ECF Nos. 22, 23. Raul
Padilla-Ruiz, Vivian J. Franceschini-Rodriguez, and their
Conjugal Partnership (Legal Society of Earnings)
(collectively, "Plaintiffs"), filed a Memorandum in
Opposition on June 9, 2017, ECF No. 28, and COMtek filed a
Reply on June 13, 2017, ECF No. 29. The Complaint was filed
on October 26, 2016. Compl., ECF No. 1.
15, 2017, this court referred the Motion to a United States
magistrate judge, pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B) and Federal Rule of Civil Procedure
72(b), to conduct hearings, including evidentiary hearings,
if necessary, and to submit to the undersigned district judge
proposed findings of fact, if applicable, and recommendations
for the disposition of the Motion. ECF No. 30.
magistrate judge denied COMtek's request for a hearing,
ECF No. 32, finding that the issues could be decided on the
record. Report and Recommendation ("R&R") at 5,
ECF No. 34. On September 15, 2017, the magistrate judge filed
the R&R, which recommended that the Motion be granted in
part and denied in part. Id. at 1, 21. By copy of
the R&R, the magistrate judge advised the parties of
their right to file written objections to the findings and
recommendations contained therein, as well as the
consequences of foregoing that right. Id. at 21-22.
September 22, 2017, COMtek filed an objection to the R&R.
Obj., ECF No. 35. The Plaintiffs replied on October 27, 2017,
but did not make any objections of their own. Obj. Reply, ECF
No. 40. The court conducted a hearing on December 13, 2017,
after which the parties were granted leave to file
supplemental briefs. Both parties have filed briefs and
replies, and the matter is ripe for decision.
to 28 U.S.C. § 636(b)(1) and Rule 72(b)(3) of the
Federal Rules of Civil Procedure, the court shall make a de
novo determination of those portions of the R&R
to which a party has objected. While a procedurally defaulted
issue is normally disregarded, the court may sua
sponte ensure that the R&R is not clearly erroneous
or contrary to law. See Thomas v. Arn, 474 U.S. 140,
150 (1985) (announcing that district judges are not precluded
from sua sponte review "under a de
novo or any other standard" if no objection is
filed); Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) ("[I]n the
absence of a timely filed objection, a district court . . .
must 'only satisfy itself that there is no clear error on
the face of the record."7 (quoting Fed.R.Civ.P. 72(b)
Advisory Committee's note to 1983 amendment)).
this framework, "the court may accept, reject, or
modify, in whole or in part, '' the recommendation of
the magistrate judge, "or recommit the matter to . [him]
with instructions." 28 U.S.C. § 636(b)(1); see
Fed.R.Civ.P. 72(b) (3).
facts of this case are fully and accurately set forth by the
magistrate judge. See R&R at 2-8. For context,
however, a brief outline of the relevant events is set forth
Plaintiffs allege, inter alia, that COMtek
discriminated against and terminated Mr. Padilla-Ruiz on
August 13, 2008, in violation of the Uniform Services
Employment and Reemployment Rights Act ("USERRA"),
38 U.S.C. §§ 4301-35, and in violation of Puerto
Rico's labor and tort laws. Compl. ¶¶ 15, 30,
38. This is the Plaintiffs' third attempt to bring this
action against COMtek. Twice, the Plaintiffs unsuccessfully
filed these claims in the United States District Court for
the District of Puerto Rico. R&R at 3-4. The first
attempt was dismissed without prejudice for improper venue,
Padilla-Ruiz v. COMtek Commc'ns Techs., Inc.,
No. 09-1695 (SEC), 2010 WL 1728311, at *5 (D.P.R. Apr. 26,
2010). The Plaintiffs then brought a second suit that named
additional defendants and causes of action, Padilla-Ruiz
v. United States, 893 F.Supp.2d 301, 304 (D.P.R. 2012),
apparently believing that the additional inclusions would
remedy the venue problem. See id. It did not, and
the second Puerto Rico suit was dismissed. Id. Now,
the Plaintiffs face a different adjudicative barrier: whether
the relevant statutes of limitations expired before October
26, 2016, when the Plaintiffs filed the present Complaint,
and whether the Plaintiffs alleged sufficient facts to
support violations of Puerto Rico law.
regard, there were two issues presented to the magistrate
judge that are relevant here: (1) whether the Plaintiffs'
USERRA claim is time-barred pursuant to the applicable
statute of limitations; and (2) whether the Plaintiffs have
stated a cause of action under Puerto Rico labor or tort law.
Def.'s Suppl. Mem. Supp. Mot. Dismiss and Obj . R&R
at 9-13, ECF No. 42 ("Def.'s Suppl. Mem.").
First, the magistrate judge, citing Baldwin v. City of
Greensboro, 714 F.3d 828, 835-36 (4th Cir. 2013), found
that USERRA's four (4) year limitations period had lapsed
before commencement of the instant action for two reasons:
(1) the Veterans' Benefits Improvement Act of 2008
("VBIA"), Pub. L. No. 110-389, 122 Stat. 4145, 4163
(codified at 38 U.S.C. § 4327), effective October 10,
2008, which amended USERRA by eliminating the four (4) year
statute of limitations, did not apply retroactively; and (2)
equitable tolling was not justified. R&R at 10-13. The
magistrate judge also noted the Plaintiffs' stipulation
that their USERRA claim would be subject to the four (4) year
limitations period. Id. at 10.
the magistrate judge found that the Plaintiffs alleged
sufficient facts to state a claim under Puerto Rico labor
law. Id. at 16-18. Because the magistrate judge
found a cause of action available under Puerto Rico labor
law, he concluded that the Plaintiffs could not proceed on
their tort claim based on the same conduct. Id. at
18 ("[W]hen a specific labor or employment law covers
the type of conduct for which a plaintiff seeks relief, he
is barred from also bringing a [tort] claim . . . based on
the same alleged conduct." (quoting
Franceschi-Vazquez v. CVS Pharmacy, 183 F.Supp.3d
333, 344 (D.P.R. 2016))). After making his recommendations,
the magistrate judge informed the parties of their right to
have the R&R reviewed by filing timely objections and the
consequences of failing to adhere to that procedure.
timely filed an objection to the finding that the Puerto Rico
labor law claim could proceed, arguing that Mr. Padilla-Ruiz
was not a member of a protected class at the time of
termination, or alternatively, that the one (1) year
limitations period for the labor law claim had expired. Obj .
at 2-4. The Plaintiffs only responded to COMtek's
objection and did not make any objections of their own.
See Obj. Reply.
Puerto Rico Labor Law Claim
Padilla-Ruiz was terminated on August 13, 2008, after being
allegedly discriminated against due to his status as an
active duty servicemember. Compl. ¶¶ 15, 30. Puerto
Rico has categorized servicemembers as a protected class; as
such, an individual may not be discriminated against because
of such status. P.R. Laws Ann. tit. 29, § 146. Though
the magistrate judge noted that, under the laws of Puerto
Rico, servicemembers became a protected class in 2012, he did
not address whether this law had retroactive effect to Mr.
Padilla-Ruiz, who was terminated approximately four (4) years
prior to the law's enactment. See ...