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, 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 defendants move for

reconsideration of the court’s decision denying their motion to

set aside the default entered against them.

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Background

The plaintiffs filed their complaint on July 23, 2004, and

the case was assigned to a judge in the District of Puerto Rico. 

The defendants sought and were granted two extensions of time,

until October 11, 2004, to file their responses. The Department

of Education and defendant Cesar Rey filed their answer on

October 11, 2004. Defendants Elsie Reyes and Carmen Beauchamp

Gonzalez moved for a further of extension of time, which was

denied. An answer was filed on behalf of those defendants on

October 22, 2004. 

On November 24, 2004, the plaintiffs filed a motion to

compel the defendants to produce the transcript of the Department

of Education hearing in this case. As part of that motion, the

plaintiffs represented that they had filed a motion in the

administrative proceeding on July 12, 2004, requesting the

hearing transcript and a copy of the administrative record. The

plaintiffs further represented that neither the transcript nor

the record was produced in the administrative proceeding, and the

matter was discussed at the parties’ scheduling meeting in this

action on October 27, 2004. The plaintiffs stated that the

defendants’ counsel requested an additional twenty days to

produce the transcript and the administrative record. The

defendants did not produce the transcript or the record within

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the twenty days, which led to the plaintiffs’ November 24, 2004,

motion to compel their production. 

In that motion, the plaintiffs asked the court to order the

defendants to provide the transcript of the administrative

hearings and a certified copy of the administrative record. The

plaintiffs also stated in the motion: “This Court should also

note that all the information needs to be translated into

English.” The defendants did not respond to the plaintiffs’

motion to compel.

On December 3, 2004, the defendants moved for an extension

of time to February 18, 2005, to complete discovery, which was

due to be completed on January 18, 2005. They assumed that their

obligation to produce the hearing transcript and administrative

record was part of discovery. In support of their motion for an

extension of time, the defendants’ counsel noted that she had two

trials in January and also that the January 18, 2005, deadline

would require work during the “holiday season when most public

employees already planned to go on vacations, and that includes

the counsels [sic] for the parties.” 

In their response filed the same day, the plaintiffs

chronicled the discovery delays caused by the defendants’ counsel

who had agreed to depositions on certain dates and then had

unilaterally cancelled them for her own convenience. The

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plaintiffs did not oppose the requested extension of time but

asked the court to impose sanctions if the defendants’ counsel

again cancelled depositions. The plaintiffs also noted that

their motion to compel production of the hearing transcript and

the administrative record was pending and noted that the

defendants had failed to produce the transcript and record since

July of 2004, when they were first asked to do so. Neither the

plaintiffs’ motion to compel nor the defendants’ motion for an

extension of time was addressed immediately.

On March 3, 2005, the case was reassigned to the undersigned

judge, who is sitting by designation in the District of Puerto

Rico. The parties filed a joint motion to continue the

scheduling deadlines. On April 7, 2005, the court reset the

discovery deadline to May 6, 2005, reset the dispositive motion

deadline to June 6, 2005, and continued the final pretrial

conference and the trial date to a date to be determined after

decisions were issued on any dispositive motions that might be

filed. The court also ordered the defendants to file a response

to the plaintiffs’ motion to compel production of the hearing

transcript and administrative record on or before April 22, 2005. 

The defendants filed their response, “Motion in Compliance

with Court Order,” late, on April 27, 2005. The defendants’

counsel explained that on an unspecified date, she had told the

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plaintiffs’ counsel that the defendants were in the process of

having the hearing tapes transcribed and that she would deliver a

copy of the transcript as soon as it was ready. The defendants’

counsel represented that the plaintiffs accepted that proposal. 

The defendants’ counsel further represented, without

providing a date, that the transcription company notified the

defendants that the tapes were partly empty and were otherwise

unclear so that no transcription could be made. The defendants’

counsel then contacted the plaintiffs and the Department of

Education to see if other copies of the tapes were in better

condition. The Department stated that it had no other copies. 

The defendants’ counsel represents that “[t]he issue was never

mentioned again since Plaintiffs have appeared with several legal

representation [sic] and it has been difficult to keep track of

the issues already covered with each different attorney.” She

stated that as a result of the problem with the tapes and her

difficulty in keeping track of the plaintiffs’ counsel, she had

not been able to provide the transcript. 

She also stated that she would again contact the Department

of Education “to either explore any possibility of getting a

record of the administrative hearing, if there is any at all, or

will request a certification of the non-existence of such a

record.” On May 2, 2005, the court granted the defendants’

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“Motion in Compliance with Court Order” as follows: “Defendants

shall promptly determine if there is a record of the

administrative proceeding in this matter and shall report to the

court on or before May 16, 2005, whether or not such record

exists.” 

The defendants filed a motion to allow them “ten (10)

additional days to deliver to Plaintiff new copies of the

administrative hearing tapes.” In the motion, counsel explained

that the Department had the original tapes from the hearing but

that she did not know the condition of those tapes. On May 23,

2005, the court granted the defendants’ motion and extended the

time to May 30, 2005.

On June 16, 2005, the defendants filed a motion to dismiss

the claims against Carmen Beauchamp Gonzalez, asserting judicial

immunity. The plaintiffs filed a motion to extend the time for

their response to July 8, 2005, which was granted. The

plaintiffs objected to the defendants’ motion on the grounds that

it was untimely, having been filed ten days after the deadline

for dispositive motions, and that Beauchamp Gonzalez was not

entitled to judicial immunity. The plaintiffs also stated that

the defendants still had not produced the administrative record

in the case. 

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

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dismiss. As part of that decision, the court ordered the

plaintiffs to file an amended complaint on or before December 5,

2005, and ordered counsel to “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.” The defendants were ordered to file

their answer and the administrative record within twenty days

after the plaintiffs filed their amended complaint. The

plaintiffs filed their amended complaint on December 6, 2005. 

The defendants did not file their answer or the administrative

record, as they had been ordered to do, did not seek an extension

of time to do so, and did not file any other response. 

When the defendants failed to respond to the plaintiffs’

amended complaint for months, the court entered a default as to

them on March 14, 2005. The next day, the defendants filed a

motion to set aside the default, their answer to the complaint,

and a motion to reconsider the default. The plaintiffs filed

their objection to the defendants’ motions the same day, March

15, 2005. On March 17, 2005, the court denied the defendants’

motions due to the lack of a showing of good cause, noting that

counsel for the defendants had not indicated whether she had

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conferred with the plaintiffs’ counsel about the administrative

record, had not filed the administrative record as she had been

ordered to do, and had provided no explanation for those

failures.

The defendants then filed a motion for reconsideration and a

motion for leave to file a transcript of the administrative

hearing in Spanish. The defendants’ counsel also filed a “Motion

Informing Annual Leave,” in which she asked the court to conform

its schedule to accommodate her anticipated six weeks of leave

from work. On March 31, 2006, the court denied the motion for

scheduling accommodations because the defendants’ counsel could

arrange for another attorney in the Puerto Rico Department of

Justice to provide coverage for this case during her planned

absences. In the same order, the court denied the motion to file

the transcript in Spanish, pointing out that federal litigation

in Puerto Rico must be conducted in English.

The plaintiffs filed a motion for default judgment on March

20, 2006. The defendants did not file a response to that motion. 

On April 25, 2006, the court denied the defendants’ motion

for reconsideration because the defendants still had not filed

the administrative record or otherwise complied with the court’s

November 21, 2005, order. The court also noted that the

defendants had not filed a response to the plaintiffs’ motion for

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default judgment and stated that a hearing on damages would be

scheduled to be held by video conference. Three weeks later, on

May 17, 2006, the defendants filed a “Motion to Alter or Amend

Default Judgment Under Rule 59(e).”

Discussion

 In their motion to alter or amend judgment, the defendants

again argue that the default should be set aside because the

circumstances leading to it were not within their control. They

also ask for discovery on the issue of damages for purposes of

the plaintiffs’ motion for a default judgment. The plaintiffs

object to the defendants’ motion to alter or amend on the grounds

that it is untimely and object to the defendants’ request for

additional discovery.

A. Default

Although the plaintiffs are correct that the defendants’

third attempt to set aside the default would be untimely as a

motion for reconsideration under Federal Rule of Civil Procedure

59(e) and that the circumstances required for relief under Rule

60(b) do not exist, those rules do not strictly apply in these

circumstances where judgment has not been entered. See Fed. R.

Civ. P. 55(c). Therefore, the court will consider the

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defendants’ motion as another motion to set aside default under

Rule 55(c).

As the court explained in its first order denying the

defendants’ motion to set aside the default, 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.” VenegasHernandez 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). 

The defendants acknowledge that on November 21, 2005, the

court ordered them to file the hearing transcript and

administrative record with their answer in response to the

plaintiffs’ amended complaint. They also acknowledge that they

failed to comply with the court’s order. They contend, however,

that their former counsel, Lavinia Aparicio-Lopez, who was an

attorney with the Federal Litigation Division of the Puerto Rico

Department of Justice, was grossly negligent but did not

willfully ignore the court’s order. They point out that

Aparicio-Lopez had problems in other cases and append a decision

in another case in which the court set aside a default entered

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because of Aparicio-Lopez’s neglect of that case and fined the

Department of Justice as a sanction.

The defendants also acknowledge that they still have not

filed the hearing transcript and the administrative record for

this case. They contend that they provided tapes of the hearing

to the plaintiffs. For the first time, they now argue that it is

not their responsibility to translate the record from Spanish to

English because they “are not the producing party of said

document” and “it is not part of defendants’ documentary evidence

in their case in chief.” They also assert that it would be

burdensome for the Department of Education to produce an English

translation of the record because of the fiscal crisis in Puerto

Rico.

When an action is brought in the district court seeking

judicial review of the decision of a state education agency, the

IDEA requires this court to “receive the records of the

administrative proceedings” and to base “its decision on the

preponderance of the evidence.” 20 U.S.C. § 1415(i)(2)(B). The

Puerto Rico Department of Education is the responsible agency and

is also a defendant in this case. The plaintiffs have sought

production of the administrative record for nearly two years; the

defendants represented that they would produce the record a year

ago, and they were ordered to do so six months ago. During all

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of that time, the defendants did not contest their obligation to

produce a certified translation of the transcript and the

administrative record in this case. The court offered the

defendants an opportunity to reach a compromise with the

plaintiffs as to which parts of the record were necessary to

address the claims in this case, but the defendants did not and

still have not attempted to use that opportunity. Instead, the

defendants expect the court to “take judicial notice” of the

fiscal crisis in Puerto Rico, based on a photocopy of a newspaper

article, and to excuse the defendants’ obligation to produce the

record on that basis. 

The defendants’ new excuses and explanations do not satisfy

the requirement of good cause. Even if the defendants’ failure

to comply with the court’s orders pertaining to the record was

initially due to gross negligence, it has now become willful. 

The delay the defendants have caused has prejudiced the

plaintiffs, who are waiting for payment for their daughter’s

education. In addition, it appears that the defendants have now

agreed that the plaintiffs were correct as to the appropriate

placement for their daughter, which would tend to undermine the

merit of their position with respect to the plaintiffs’ IDEA

claim. In what has been a continuing pattern, the defendants and

their counsel have taken a cavalier attitude towards the

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plaintiffs and the court in this litigation, and they have wasted

their resources and those of both the plaintiffs and the court. 

No justifiable reasons have been provided for this conduct.

Therefore, in the absence of good cause, the court will not set

aside the default entered against the defendants.

B. Discovery

The defendants also ask the court to reopen discovery before

the hearing on damages for purposes of the default judgment. The

plaintiffs object to reopening discovery and state that the

defendants failed to conduct discovery previously in this case,

despite the extensions of time allowed by the court.

Once again, the defendants fall victim to their own conduct,

and the court will not reopen discovery. The court will require

the plaintiffs to provide the defendants and the court with a

written specification of their damages, setting forth the

specific details of any item of claimed damage and copies of any

written documentation that support any claimed damage. The

plaintiffs shall file said damage specification with the court

and the defendants on or before June 23, 2006.

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Conclusion

For the foregoing reasons, the defendants’ motion to amend

or alter (NH document no. 28) is denied. The plaintiffs shall

file a specification of damages as provided in this order on or

before June 23, 2006. A hearing on the motion for default

judgment will be scheduled to be held by video conference after

June 23, 2006.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

May 31, 2006

cc: Jose E. Cespedes-Sabater, Esquire

Alfredo Fernandez-Martinez

Kristine Burgos Santiago, Esquire

USDC-PR, Clerk

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