Smith v. Rivera-Llamas et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ARIANA SMITH,
Plaintiff,
v.
SANDRA RIVERA LLAMAS,
BEAUMEDICS LLC, INSURANCE
COMPANY A, INSURANCE COMPANY
B, INSURANCE COMPANY C, JOHN
DOES 1-10,
Defendants.
Civil No. 24-1547 (ADC) (MBA)
REPORT AND RECOMMENDATION
Before the Court is the Defendants’ Joint Motion to Dismiss with prejudice for Plaintiff Ariana
Smith’s failure to prosecute. (ECF No. 36). Smith, who was duly notified, has failed to respond to the
motion. U.S. District Judge Aida M. Delgado-Colón referred the case to me for pretrial management,
including report and recommendations on all dispositive motions. (ECF No. 24). For the reasons set
forth below, I recommend the motion to dismiss with prejudice be GRANTED.
BACKGROUND
On November 27, 2024, Ariana Smith, through counsel, filed a complaint against Dr. Sandra
Rivera Llamas, Beaumedics LLC (“Beaumedics”), Insurance Company A, Insurance Company B,
Insurance Company C, and John Does 1-10 following a “non-invasive cosmetic procedure” that
resulted in pain during the procedure, as well as first, second, and third degree burns some of which
she alleges are now permanent scars. (ECF No. 1 at 2-3). Llamas and Beaumedics both answered.
(ECF No. 10, 11). On August 7, 2025, Beaumedics requested the Court deem their first request for
admissions to Plaintiff as admitted for failure to respond within 30 days in accordance with FRCP
36(a)(3). (ECF No. 25). Counsel for Smith opposed, but acknowledged that he had failed to read the
request until August 20, 2025. (ECF No. 26). Then, on September 3, 2025, counsel for Smith filed a
motion to withdraw as attorneys because of “an irreconcilable impasse regarding the direction and
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management of this litigation.” (ECF No. 30 at 1). Counsel requested the Court grant Smith 60 days
to obtain new counsel. (Id. at 2). Beaumedics opposed, challenging the timing and the plaintiff’s
“meritless, costly litigation tactics” considering that Smith was “on clear notice of Beaumedics[] lack
of involvement regarding Plaintiff’s claims.”1 (ECF No. 31 at 2-3). Beaumedics added that Smith had
offered to move to voluntarily dismiss her claims without prejudice, with each party bearing its own
attorney’s fees and costs, but that while it was willing to bear its fees and costs, dismissal had to be
with prejudice. (Id. at 2-3).
The Court held a hearing on the matter on September 11, 2025. (ECF No. 32). Ultimately, the
Court granted the motion to withdraw and ordered Plaintiff Smith to appear with new counsel by
November 10, 2025, and warned her that “[f]ailure to comply may result in dismissal for failure to
prosecute.” (ECF No. 33, 34). Smith failed to appear with new counsel and on November 15, 2025,
Defendants jointly filed a motion to dismiss with prejudice for lack of prosecution. (ECF No. 36).
Smith was timely mailed a copy of the relevant filings (See ECF No. 33; Exhibit 1: Notice of delivery
to Ariana Smith re 36 Motion to Dismiss). To date, Smith has failed to appear.
DISCUSSION
“A court undoubtedly has the power to dismiss with prejudice under Rule 41(b).” Asociación de
Empleados del Instituto de Cultura Puertorriqueña v. Rodriguez-Morales, 538 F.2d 915, 916 (1st Cir. 1976)
(affirming dismissal of action with prejudice where there was a “clear record of delay . . . by the
plaintiffs”) (citing Link v. Wabash Railroad Co., 370 U.S. 626, 629-33 (1962)). But, because “the sanction
of dismissal with prejudice for want of prosecution is a unique and awesome one,” “fairness requires
that some limits be placed on its use.” Pomales v. Celulares Telefonica, Inc., 342 F.3d 44, 48 (1st Cir. 2003)
(cleaned up). This is one of those “rare occasions when the court in its discretion determines that
none of the ‘lesser sanctions available’ would be truly appropriate.” Asociación de Empleados del Instituto
de Cultura Puertorriqueña, 342 F.2d at 917 (quoting Richman v. General Motors Corp., 437 F.2d 196, 199
(1st Cir. 1971)).
1 As documented in U.S. Magistrate Judge Marcos E. López’s Opinion and Order, in its Rule 11 letter
Beaumedics offered to provide this evidence to Smith’s counsel, but Smith’s “counsel never allegedly
reached out to schedule a meeting or inquire into the referenced evidence.” (ECF No. 20 at 8).
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Here, there is no lesser sanction available to the Court. As argued by Beaumedics in its motion
to deem its requested admissions admitted, Rule 36(a)(3) provides that “[a] matter is admitted unless,
within 30 days after being served, the party to whom the request is directed serves on the requesting
party a written answer or objection addressed to the matter and signed by the party or its attorney.”
(ECF No. 25). Thus, operation of the Rule forecloses some of the remedial sanctions this Court could
impose. Moreover, this appears to be more than an isolated event. As mentioned in the Court’s
Opinion and Order, Beaumedics had already advanced that counsel for Smith had not responded to
its invitation to inspect evidence of their noninvolvement.2 (ECF No. 20; ECF No. 31 at 2). In
addition, in Beaumedics opposition to counsel’s motion to withdraw, it informed that Smith had
already offered to dismiss her action without prejudice, which Beaumedics rejected. (ECF No. 31 at
2). It was faced with this unique procedural posture that the Court granted Smith 60 days to appear
with new counsel and warned in its Minute Entry that “[f]ailure to comply may result in dismissal for
failure to prosecute.” (ECF No. 33). The Court ensured that notification be sent directly to Smith.
(Id.). Despite more than 90 days having passed from the Court’s order, Smith has failed to appear.
Smith’s clear disregard of the Court’s order combined with her apparent lack of interest in prosecuting
her case necessitate the imposition of the ultimate sanction. See Zavala Santiago v. Gonzalez Rivera, 553
F.2d 710, 713 (1st Cir. 1977) (affirming dismissal with prejudice where “plaintiffs’ counsel’s failure
either to appear at the pre-trial conference or properly to excuse himself . . . was not only an
unprofessional and discourteous act; it indicated plaintiffs’ lack of interest in vindicating whatever
rights they might have had”). Indeed, dismissal without prejudice would present a windfall for Smith,
who could restart the discovery clock, and an undue hardship to the defendants, who have zealously
litigated their case. Smith has failed to meet the basic requirement of appearing before the Court. A
lesser sanction would be both ineffective and impractical. All this to say dismissal with prejudice is
warranted. See Corchado v. Puerto Rico Marine Management, Inc., 665 F.2d 410, 413 (1st Cir. 1981) (“We
hope that we have made it clear by now that a district court’s discretion to use the extreme sanction
of dismissal for failure of counsel to respond properly to discovery orders or to fail to appear at
2 Defendants position has been that Smith’s damages were due to negligent acts or omissions of a
third party, as to which neither of them is liable. (ECF No. 20 at 6; ECF No. 22 at 5-6).
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scheduled conferences or hearings will be upheld unless abused.”).
CONCLUSION
For the aforementioned reasons, the Court recommends Defendants’ joint motion to dismiss
with prejudice be GRANTED.
This report and recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(d)
of the Local Rules of this Court. Any objections to the same must be specific and must be filed with
the Clerk of Court within fourteen days of its receipt. Failure to file timely and specific objections to
the report and recommendation is a waiver of the right to appellate review. See Thomas v. Arn, 474 U.S.
140, 155 (1985); Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992); Paterson-Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988); Borden v. Sec’y of Health & Human Servs., 836 F.2d 4, 6
(1st Cir. 1987).
IT IS SO RECOMMENDED.
In San Juan, Puerto Rico this December 30, 2025.
s/ Mariana E. Bauzá-Almonte
MARIANA E. BAUZÁ-ALMONTE
United States Magistrate Judge
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