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. 04-1760

Puerto Rico Department of

Education, et al.

O R D E R

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. They also allege claims

under 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. 

The court entered default against the defendants on March

14, 2006. The defendants have moved to set aside the default and

for reconsideration of that order. The plaintiffs object to the

defendants’ motions.

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Background

An issue arose early in the litigation of this case

concerning the administrative record. The defendants represented

that they had encountered problems with the tapes of the

administrative proceedings and then represented that they would

provide the plaintiffs with new copies of the administrative

hearing tapes, which was to be done by May 31, 2005. Despite the

court’s order to that effect, the defendants did not provide the

plaintiffs with the tapes, file a copy of the administrative

record with the court, or otherwise seek relief from their

obligation to do so. 

On November 21, 2005, the court directed the plaintiffs to

file an amended complaint and ordered further proceedings as

follows:

Counsel for the parties shall confer to determine which

part, if any, of the administrative record is necessary

for the court to resolve the claims as pled in the

amended complaint. The Department of Education shall

file a certified translation of all or the agreed part

of the administrative record with its answer to the

amended complaint. Both the answer and the

administrative record shall be filed within twenty days

after the plaintiffs file their amended complaint. 

After the amended complaint, the answer, and the

administrative record are filed, the court will issue a

procedural order to set the scheduling plan for the

remainder of this case.

The plaintiffs filed an amended complaint on December 6, 2005. 

The defendants did not file an answer or any part of the

administrative record on or before December 26, 2005. The

defendants also did not seek an extension of time to comply with

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the court’s order.

On January 30, 2006, the defendants’ counsel moved to

withdraw from the case because she would no longer be working at

the Federal Litigation Division of the Department of Justice for

the Commonwealth of Puerto Rico, which motion was granted the

next day. Jo Ann Estades Boyer, Director of the Federal

Litigation Division of the Commonwealth Department of Justice,

was added in her place. Nothing was filed on behalf of the

defendants. On March 9, 2006, a third lawyer from the Federal

Litigation Division of the Commonwealth Department of Justice,

Kristine Burgos Santiago entered an appearance in this court on

behalf of the defendants. The docket indicates that Ms. Burgos

Santiago entered her appearance in the District of Puerto Rico on

February 6, 2006.

On March 14, 2006, the court entered a default as to the

defendants and directed the plaintiffs to file a motion for

default judgment by April 14, 2006. The next day, March 15,

2006, the defendants, through counsel, filed “Motion to Set Aside

Entry of Default and Tendering Answer to the Complaint,” the

defendants’ answer to the amended complaint, and a motion for

reconsideration of the court’s default order. Counsel did not

file all or any part of the administrative record, as they were

ordered to do in the order issued on November 21, 2005, or

indicate why the record was not filed. Counsel also has not

indicated whether she has conferred with plaintiffs’ counsel, as

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was ordered on November 21, 2005, for the purpose of determining

what part of the administrative record would be necessary to

resolve the issues in this case.

Discussion

The entry of default may be set aside “[f]or good cause.” 

Fed. R. Civ. P. 55(c). “Good cause” in this context is

“liberally construed” to include consideration of “whether the

default was willful and whether removal of the default would

prejudice the plaintiff.” Venegas-Hernandez v. Sonolux Records,

370 F.3d 183, 187 (1st Cir. 2004). The court may also consider

whether “the alleged defense was meritorious.” United States v.

$23,000 in U.S. Currency, 356 F.3d 157, 163 (1st Cir. 2004). 

In support of the defendants’ motions to set aside default

and for reconsideration, the defendants’ counsel represents that

the case was poorly handled by previous counsel and that she,

current counsel, could not make filings in this court because she

did not have an “ECF login” here. Counsel suggests that the

delay was due to a slow response to her request for an “ECF

login” in this court. 

In fact, however, counsel did not apply for ECF registration

in this court for more than a month after she filed her

appearance in the District of Puerto Rico. Counsel’s ECF

registration form is dated March 9, 2006, and was received in

this court on March 13, 2006. Her login and password were sent

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1Counsel is also put on notice that the case number in this

court is “NH Civil No. 05-ds-114-JD,” which should be included on

all filings here. Further, all original filings are to made in

the District of Puerto Rico with copies of all filings to be

filed in the District of New Hampshire. See Order, Apr. 28, 2005

(document no. 4).

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to her on March 14, 2006. Counsel’s excuses do not adequately

explain the delay the defendants have caused in this case. 

Further, because the defendants have not filed the

administrative record with their answer, as they were ordered to

do, they remain in default in this case. Counsel has not

explained her failure to comply with the order of November 21,

2005. In addition, the defendants’ failure to provide the

administrative record has delayed this case since last spring,

and given the circumstances, the delay cannot be determined not

to be willful.

 The court notes that not only are the defendants represented

by counsel, they are represented by the Department of Justice of

the Commonwealth of Puerto Rico. The court would expect the

Department’s attorneys to provide appropriate representation,

including compliance with court orders and attention to the

docket, which has not occurred in this case.1 The excuses

offered by counsel do not constitute good cause to set aside the

default. There is every indication that the defendants did not

take this case or the court’s orders seriously.

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Conclusion

For the foregoing reasons, the defendants’ motion to set

aside the default (document no. 16) and motion for

reconsideration (document no. 18) are denied. To the extent the

plaintiffs intended to file a motion for default judgment as part

of their opposition to the defendants’ motions to set aside

default and for reconsideration, that request is not considered

here and must be filed separately as a “Motion for Default

Judgment” on or before April 14, 2006.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

March 17, 2006

cc: Jose E. Cespedes-Sabater, Esquire

Alfredo Fernandez-Martinez, Esquire

Kristine Burgos Santiago, Esquire

Jo Ann Estades Boyer, Esquire

Clerk, USDC-PR

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