Hart v. Verizon Communications, Inc. ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1287
JAMES H. HART,
Plaintiff, Appellant,
v.
VERIZON COMMUNICATIONS, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
James H. Hart on brief pro se.
John P. McLafferty, Victoria Woodin Chavey and Day, Berry &
Howard LLP on brief for appellees.
March 29, 2005
Per Curiam. Pro se plaintiff-appellant James H. Hart
("Hart") appeals from a judgment entered after a jury verdict
denying him relief under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a), for his sexual harassment claim, alleging
various trial errors. Hart also appeals from the prior dismissal
of his other claims. We affirm.1
Hart, who was represented by counsel at trial, did not
object to the alleged trial errors. Accordingly, our review is
only for plain error. Microfinancial, Inc. v. Premier Holidays
Int'l, Inc., 385 F.3d 72, 81 (1st Cir. 2004). Hart first argues
that the court erred by allowing defendant Verizon Communications,
Inc. ("Verizon") to introduce evidence of Hart's conviction for
operating a motor vehicle under the influence ("OUI"). In response
to Hart's pre-trial motion to preclude use of this conviction, the
court had initially limited Verizon's cross-examination to the
facts of his OUI arrest and prohibited Verizon from eliciting the
fact of his conviction. In response to questions about his arrest,
however, Hart volunteered that a juror had told him "You have
grounds for a mistrial." Hart later said that the arrest was
upsetting but the trial "was vindication for me after what
1
We do not address defendants' separate contention that
Hart's appeal fails because of his brief's flagrant failure to
comply with the procedural requirements of the Federal Rules of
Appellate Procedure. A pro se party is not insulated from
complying with those rules. Ahmed v. Rosenblatt, 118 F.3d 886, 890
(1st Cir. 1997). Because Hart's appeal lacks substantive merit, we
elect to proceed on that basis.
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happened." The court then permitted Verizon to inquire into the
result of that trial, without objection from Hart's counsel.
Because Hart opened the door to the actual result of his OUI trial,
the court did not err in allowing the inquiry into his conviction.
See, e.g., Beck v. Haik, 377 F.3d 624, 642 (6th Cir. 2004) (holding
that testimony of drowning victim's mother that victim "wasn't
convicted" when asked on cross-examination in civil rights action
whether he had ever gotten into trouble opened door to question
regarding whether victim had ever gone to prison). Hart also
argues that the court erred by allowing evidence of a prior
conviction for contempt. Verizon, however, never offered evidence
of that conviction.
Hart next argues that the court erred by excluding the
testimony and/or affidavits of certain present and former Verizon
employees. Hart never called any of them as witnesses or sought to
introduce any of their affidavits. Accordingly, there was no
error. See, e.g., Andrews v. Bechtel Power Corp., 780 F.2d 124,
140 (1st Cir. 1985) (noting that claim of error cannot be
predicated upon evidence which is never actually offered to court).
Hart further argues that the court erred in allowing an
improper comment by the court's clerk. There is no record of this
comment in the trial transcript. Nor did Hart ever bring it to the
district court's attention. Thus, the court could not have erred
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in failing to address an allegation articulated for the first time
on appeal.
Hart also argues that the court violated his due process
rights by dismissing his other claims prior to trial without
holding a hearing, despite his request for oral argument. Hart
contends that he should have been afforded a hearing because he was
proceeding pro se at the time. A pro se plaintiff is not
automatically entitled to a hearing. Here, Hart presented his
position in writing in his opposition to defendants' motion to
dismiss, and, more importantly, has not pointed to any relevant
factual question or legal theory that he was precluded from
bringing to the court's attention by lack of a hearing. Thus, this
claim has no merit.
We add a few comments. Hart's brief makes vague,
fragmentary and passing references to some other claims. We need
not consider them. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) (noting that issues raised in perfunctory manner
are deemed waived). Also, Hart attaches to his brief a court order
dismissing a second action against Verizon. This action was filed
while the present case against Verizon was pending and dismissed on
res judicata grounds after final judgment had entered in this case.
Hart appealed from the dismissal of the second action, but the
appeal was dismissed after he failed to file an opening brief.
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While Hart appears to be seeking a second bite at the apple, that
second action is not properly before us.
Hart's motion for oral argument is denied.
The judgment of the district court is summarily affirmed.
See Loc. R. 27(c).
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