UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF PUERTO RICO

Carlos 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, challenging the decision of the

Puerto Rico Department of Education on their request for free and

appropriate education for their daughter under the Individuals

with Disabilities in Education Act (“IDEA”). Default has been

entered as to the defendants due to their failure to file a

timely answer and to comply with the terms of the court’s order.

I. Second Motion to Reconsider

The defendants ask the court to reconsider, for a second

time, the denial of their motion to set aside the default. Their

motion to set aside default and for reconsideration of the entry

of default was previously denied. Order, Mar. 17, 2004. In

considering the defendants’ request for reconsideration, a second

review of the history of this case is instructive.

 The plaintiffs filed suit on July 23, 2004. After two

extensions were granted, the Department of Education and Cesar

Rey filed their answer on October 11, 2004, and the remaining

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defendants filed their answer on October 22, 2004. The issue of

a transcript of the administrative proceeding arose almost

immediately. The case was reassigned to this judge on March 3,

2005.

The court reset deadlines for discovery and motions on April

8, 2005. On May 2, 2005, the court ordered the defendants to

promptly determine if a record of the administrative proceeding

existed and to report their findings to the court on or before

May 16, 2005. On May 20, 2005, the defendants sought an

extension of time to comply, and the court granted their motion

to allow them to provide the plaintiffs with tapes of the hearing

by May 31, 2005. Thereafter, one defendant filed a motion to

dismiss, but the defendants did not provide the tapes or a

transcript of the hearing, as they were required to do, nor did

they request a further extension of time or otherwise address the

issue of the administrative hearing transcript. 

On November 21, 2005, the court denied the motion to

dismiss, ordered the plaintiffs to file an amended complaint by

December 5, 2005, and ordered the defendants to file a transcript

of the administrative record, as provided in that order, within

twenty days of the date of filing of the amended complaint. The

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

defendants did not respond.

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

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1During February of 2006, counsel for the defendants, an

attorney in the Department of Justice of the Commonwealth of

Puerto Rico, mistakenly filed documents pertaining to changes in

representation only in the District of Puerto Rico and neglected

to register for ECF filing in this district until March 9, 2006.

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defendants due to their failure to file any response to the

amended complaint and directed the plaintiffs to file a motion

for default judgment by April 14, 2006.1 The next day the

defendants 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 entry

of default. The defendants failed to file a transcript of the

administrative hearing and failed to explain why the transcript

was missing. The defendants’ motions to set aside default and

for reconsideration were denied on March 17, 2006. 

The plaintiffs filed a motion for default judgment on March

20, 2006. The defendants have not filed a response to that

motion, although more than a month has passed since it was filed.

The defendants filed an emergency motion for reconsideration

and a motion for leave to file the administrative hearing

transcript in Spanish on March 17, 2006. On March 27, the

defendants’ counsel filed a motion seeking scheduling

accommodations for her vacation schedule, and on March 31,

defendants’ counsel filed a “Motion to Clarify” in which she

explained that she had mistakenly filed the emergency motion to

set aside, the answer, the motion for reconsideration, the

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2Defendants’ counsel states, confusingly, at the end of the

motion: “I hereby certify that on this same date, I

electronically filed the foregoing with the Clerk of the Court

using the CM/ECF system to Alfredo Fernandez-Martinez from

Delgado & Fernandez and to Jose E. Cespedes-Sabater from Cobian &

Valls to their respective electronic addresses.” Because the

motion was NOT sent to the CM/ECF system in the District of

Puerto Rico, the court has no way to know if a copy was sent to

plaintiffs’ counsel or not.

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emergency motion for reconsideration, and the motion for leave to

file the transcript in Spanish in the District of New Hampshire

but not in the District of Puerto Rico. 

The court denied counsel’s motion for scheduling

accommodations and to file the transcript in Spanish on March 31,

2006. On April 24, 2006, the defendants’ motion to clarify,

addressing their filing errors, was terminated. As of April 25,

2006, the documents listed in the defendants’ motion to clarify

were not docketed in the District of Puerto Rico. 

The plaintiffs have not filed any response to the

defendants’ emergency motion to reconsider. Because that was one

of the documents filed only in the District of New Hampshire, it

is not clear whether counsel for the plaintiffs was properly

notified of that filing.2 Counsel for the defendants represents

in the motion for reconsideration that she sent a letter to

plaintiffs’ counsel on February 27, 2006, and cites to “Exhibit

1.” “Exhibit 1,” however, is a copy of part of the hearing

transcript in Spanish, and no letter is included with the motion. 

Counsel for the defendants also represents that on March 17,

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2006, she sent a copy of the Spanish transcript of the hearing to

plaintiffs’ counsel.

The defendants have not responded to the court’s order of

March 31, 2006, that denied their request to file the transcript

in Spanish. At this stage in the proceedings, the defendants

remain in default, four months after the date they were ordered

to file their answer and the transcript, having not filed a copy

of the hearing transcript in English. As the foregoing

recitation of the travel of this case clearly demonstrates, the

defendants have consistently, without justification, failed to

comply with the orders of the court. Therefore, the court finds

no grounds to set aside the default.

II. Motion for Default Judgment

The plaintiffs have requested a default judgment, seeking

compensatory damages for private school tuition in the amount of

$44,749.00. The defendants have failed to respond to that

request. In their amended complaint, the plaintiffs allege

claims under the IDEA, the Rehabilitation Act; Title II of the

Americans with Disabilities Act; the Civil Rights Act of 1964, 42

U.S.C. § 2000a; 42 U.S.C. § 1983, and Puerto Rico laws. Because

the defendants failed to provide a timely response to the amended

complaint, as ordered by the court, and failed to respond to the

plaintiffs’ motion for default judgment, a judgment of default

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will be entered after a hearing on damages. See Fed. R. Civ. P.

55(b)(2); United States v. $23,000 in U.S. Currency, 356 F.3d

157, 163 (1st Cir. 2004). Therefore a hearing on damages will be

scheduled to be held by video conference.

Conclusion

For the foregoing reasons, the defendants’ motion for

reconsideration (document no. 21) is denied. The clerk of court

shall set a date for a hearing on damages for default judgment to

be held by video conference and shall notify the parties.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

April 25, 2006

cc: Jose E. Cespedes-Sabater, Esquire

Alfredo Fernandez-Martinez, Esquire

Kristine Burgos Santiago, Esquire

Clerk, USDC-PR

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