UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF PUERTO RICO

Carlos A. Morales, et al.

v. NH Civil No. 05-ds-114-JD

PR Civil No. 04-17560

Puerto Rico Department

of Education, et al.

O R D E R

Following entry of default against the defendants in this

case, the court denied the defendants’ motion for reconsideration

and their motion to reopen discovery before the hearing on

damages. The court ordered the plaintiffs to file a written

specification of damages, setting forth the specific details of

any item of claimed damage and copies of any written

documentation to support any claimed damages on or before June

23, 2006. See Order, May 31, 2006 (document no. 27). On June

19, 2006, the court issued a procedural order noting that the

First Circuit Court of Appeals had issued a decision in a case

that would provide the governing law as to the remedies available

in this case, Diaz-Fonseca v. Commonwealth of P.R., 451 F.3d 13

(1st Cir. 2006), and directing the parties to review that

decision and to use their best efforts to settle this case before

Case 1:05-ds-00114-JD Document 37 Filed 07/26/06 Page 1 of 8
1The damages hearing was initially scheduled for July 6,

2006, and was then rescheduled at the defendants’ request. The

hearing is now scheduled for August 21, 2006, to be held by video

conference.

2

August 1, 2006.1

On June 29, 2006, the plaintiffs filed “Motion in Compliance

with Order and Designation of Damages,” without any supporting

details or written documentation of their claimed damages. As

part of that motion, the plaintiffs asked the court to excuse

their late filing because of “the complex legal implications of

the Diaz-Fonseca decision.” The defendants filed “Motion to

Strike and Requesting Judgment on the Pleadings” the same day. 

The plaintiffs responded by filing “Motion in Response to Motion

to Stay and for Judgment on the Pleadings and Identifying

Remaining Claims.”

I. Motion to Strike

The defendants move to strike the plaintiffs’ designation of

damages because it is untimely and lacks the supporting

information ordered by the court. The defendants are correct

that the plaintiffs failed to comply with the deadline set in the

court’s order issued on May 31, 2006, and failed to file a motion

seeking an extension of time. The plaintiffs’ designation of

damages without providing or filing specific details and

Case 1:05-ds-00114-JD Document 37 Filed 07/26/06 Page 2 of 8
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supporting documentation is also contrary to the court’s order. 

Such conduct is subject to the imposition of sanctions, including

dismissal of the plaintiffs’ claims. Court orders are to be

complied with strictly and not taken lightly. 

The damages hearing is now scheduled for August 21, which

allows sufficient time for the plaintiffs to file and to provide

to the defendants the information ordered by the court on May 31,

2006. The plaintiffs are ordered to provide the following

specific detail and supporting documentation:

a. Enrollment at Centro de Intervencion Temprana, Inc.

$22,500.00 (Sept. 2004 - -May 2005)

Evidence of the cost of tuition and proof of payment

such as bills and receipts or cancelled checks or of outstanding

liability for the amount.

b. Psychological services with Dr. Angeles Acosta - $630.00 

Evidence of the purpose, time, and cost of the services

and proof of payment or outstanding liability for the amount

billed.

c. Speech therapies with Evelyn E. Rivera - $160.00

Evidence of the purpose, time, and cost of the therapy

and proof of payment or outstanding liability for the amount

billed.

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d. Services provided at IMEI - $2,000.00

Evidence of the type of services provided, their

purpose, time, cost of each service, and proof of payment or 

liability for the amount claimed.

e. Interests paid on loan to pay enrollment at Centro de

Intervencion Temprana, Inc. - $3,536.69

 Evidence of the loan, its terms, its purpose, and any

payments made.

f. Services to be rendered by Jessica Ortiz on July 20,

2006, for an evaluation - $130.00

If the evaluation has been completed, provide evidence

supporting the amount claimed and proof of payment or liability

for the amount billed.

g. Attorneys’ fees and expenses - $37,647.78

Contemporaneous billing records, identifying the

attorney, the time spent, and the nature of each task billed, the

hourly rate, and the detail of the expenses claimed.

The plaintiffs shall file and provide to the defendants on

or before August 11, 2006, the supporting detail and

documentation for their claims as specified above. Should the

plaintiffs again fail to comply with the court’s order, their

claims will be dismissed with prejudice. 

In addition, the parties were previously directed to use

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their best efforts to resolve the damages claims in this case.

The court has received no indication that any effort was made to

settle these matters. When the defendants receive the supporting

detail and documentation from the plaintiffs, counsel shall

confer for the purpose of settling the damages claims. Counsel

shall notify the court as to the status of their settlement

efforts on or before August 15, 2006.

II. Motion for Judgment on the Pleadings

The plaintiffs, who are the parents of Veronica M. Morales

Davila, filed suit on her behalf under the Individuals with

Disabilities Education Act (“IDEA”), the Rehabilitation Act, the

Civil Rights Act of 1964, 42 U.S.C. § 2000a, the Americans with

Disabilities Act, and 42 U.S.C. § 1983, and Puerto Rico law. The

plaintiffs contend that the Department of Education of Puerto

Rico; Cesar Rey, Secretary of the Department; Elsie Rivas,

Supervisor of the Department of Special Education, and

Administrative Judge Carmen Beauchamp Gonzalez violated

Veronica’s rights under the cited statutes by failing to provide

her with an educational environment that is appropriate, given

her disabilities. Default was entered against the defendants

when they failed to file an answer and failed to comply with the

court’s order to provide the administrative record in this case.

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The defendants move for judgment on the pleadings,

contending that the plaintiffs failed to state claims under the

Civil Rights Act of 1964, 42 U.S.C. § 2000a, lack standing to sue

under 42 U.S.C. § 1983, and failed to state claims under the

Americans with Disabilities Act, the Rehabilitation Act, and §

1983. As such, the defendants now contest the merits of the

plaintiffs’ claims against them and challenge their liability

under those claims. 

The defendants’ arguments are too late. Once default is

entered, “each of [the plaintiffs’] allegations of fact must be

taken as true and each of [their] claims must be considered

established as a matter of law.” Goldman, Antonetti, Axtmayer &

Hertell v. Medfit Int’l, Inc., 982 F.2d 686, 693 (1st Cir. 1993)

(internal quotation marks omitted). At this stage, the

defendants can contest damages but not the merits of the

plaintiffs’ claims against them. Conetta v. Nat’l Hair Care

Ctrs., Inc., 236 F.3d 67, 73 (1st Cir. 2001).

As the court has previously instructed the parties, the

First Circuit’s decision in Diaz-Fonseca provides the governing

law as to the remedies available in this case. Despite some

remarks to the contrary, the plaintiffs acknowledge the limits on

their recovery under Diaz-Fonseca. The plaintiffs now seek only

reimbursement for educational expenses and attorneys’ fees and

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“renounce, without prejudice to re-filing under local laws and in

local Court[,] their right to seek recovery for the damages

suffered by all of them.” Motion in Response at 5 (document

no. 36). Therefore, the plaintiffs’ claims under the Americans

with Disabilities Act, the Rehabilitation Act, the Civil Rights

Act of 1964 (42 U.S.C. §§ 2000 and 1983), and under Puerto Rico

law and their claims against the individual defendants are

dismissed without prejudice. 

Conclusion

For the foregoing reasons, the defendants’ motion to strike

and for judgment on the pleadings (document no. 35) is denied. 

The plaintiffs’ claims under the Americans with Disabilities Act,

the Rehabilitation Act, the Civil Rights Act of 1964 (42 U.S.C. §

§ 2000 and 1983), and under Puerto Rico law (second through fifth

causes of action in the second amended complaint) and their

claims against the individual defendants are dismissed without

prejudice. 

The plaintiffs shall file and provide to the defendants the

detail and documentation supporting their claims for damages on

or before August 11, 2006, failing which their claim under the

IDEA will be dismissed with prejudice. Counsel shall confer and

use their best efforts to reach a settlement of the damages

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issues remaining in this case and notify the court on or before

August 15, 2006, as to the status of their settlement efforts. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

July 26, 2006

cc: Alfredo Fernandez-Martinez, Esquire

Kristine Burgos Santiago, Esquire

USDC-PR, Clerk

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