Worcester v. Filene's Basement ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1940





                    HIDEKO T. WORCESTER AND CHARLES E. WORCESTER,



                               Plaintiffs, Appellants,



                                          v.



                       FILENE'S BASEMENT, CORPORATION, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                  [Hon. George A. O'Toole, Jr., U.S. District Judge]
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                                        Before



                               Selya, Boudin and Stahl,

                                   Circuit Judges.
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            Hideko T. Worcester and Charles E. Worcester on brief pro se.
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            Joseph  P.  Musacchio  and Melick  &  Porter,  LLP  on  brief  for
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        appellees  Filene's Basement Corporation,  Howard Nyman, Ray McCarthy,

        Colleen Fitzpatrick, Maureen Supple, and Retail Enterprises, Inc.

            Merita A. Hopkins and Robert J. Boyle, Jr. on  brief for appellees
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        Francis M. Roache, Ralph Caulfield, and Leo Coogan.





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                                  September 5, 1997

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                      Per   Curiam.     Appellants  Hideko   and  Charles
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            Worcester appeal from the amount  of damages the jury awarded



            and from  two orders of  the district court entered  prior to



            trial.  For  the following reasons, we  find that appellants'



            contentions lack merit.



                      1.    Damages.   First,  "[w]e  generally  will not
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            review  a  party's  contention  that  the  damages  award  is



            excessive or insufficient where the party has failed to allow



            the  district court  to rule  on  the matter."   O'Connor  v.
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            Huard, 117 F.3d  12, 18 (1st Cir. 1997).  The record reflects
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            that  the district  court  was never  provided  with such  an



            opportunity.   In  any event,  the  only evidence  appellants



            present in support of their  claim that the damages award was



            too  low is new  evidence.   Of course,  this court  does not



            consider  arguments or evidence not presented to the district



            court.   Matthews v.  Marsh, 755 F.2d  182, 183-84  (1st Cir.
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            1985).



                      2.   Joseph  Doe's Dismissal.  We  think that  what
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            appellants really  are  complaining  about  is  the  district



            court's  denial  of  their   motion  to  substitute   "Robert



            Constine" for  "Joseph Doe,"  which we treat  as a  motion to



            amend  the complaint  to  add an  additional  defendant.   We



            review the denial  of such a motion for  abuse of discretion.



            Resolution Trust  Corp. v. Gold,  30 F.3d 251, 253  (1st Cir.
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            1994).  "[U]nseemly delay, in combination with other factors,







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            may warrant denial  of a suggested amendment."   Quaker State
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            Oil Refining  Corp. v. Garrity  Oil Co., 884 F.2d  1510, 1517
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            (1st Cir. 1989).



                      Here,  appellants  waited  to  move  to  amend  the



            complaint  for about one year after  the other police officer



            involved in Hideko's  arrest had been identified.   In such a



            situation, "the movant[s]  ha[ve] the burden of  showing some
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            valid reason for  [their] neglect and delay."   Grant v. News
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            Group Boston, Inc., 55 F.3d 1, 6 (1st Cir. 1995).  Appellants
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            do  not present  such reasons.    First, to  the extent  that



            appellants allege  that the  actions of  their prior  counsel



            contributed to the  delay in moving  to amend the  complaint,



            appellants  are  bound by  the  acts  or omissions  of  their



            attorneys.  United States v.  One Lot of $25,721 in Currency,
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            938 F.2d 1417, 1422 (1st Cir. 1991).



                      Second,  the  record  reveals  that  after  counsel



            withdrew,  it was appellants'  own inaction which  caused the



            further  delay.    Such inaction  cannot  constitute  a valid



            reason.   See  Hayes v.  New  England Millwork  Distributors,
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            Inc.,  602 F.2d  15, 20 (1st  Cir. 1979).   In any  event, we
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            think  that both  the court and  the police  defendants would



            have been  prejudiced by the  addition of a new  defendant so



            late  in the  case because  discovery  would have  had to  be



            reopened.  See Grant, 55 F.3d at 5-6.
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                      3.    Motion  of  Francis  M.  Roache  for  Summary
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            Judgment.  The district court did not abuse its discretion in
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            denying appellants' request for more time in which to conduct



            the discovery  necessary to  oppose this  motion because  the



            record  reveals that  prior  to the  motion,  ample time  had



            existed  for such  discovery.   See Price  v.  General Motors
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            Corp., 931 F.2d 162, 164  (1st Cir. 1991) (a party  must show
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            "good  cause" for  the failure  to  have conducted  discovery



            earlier).   Further, "[a]  court may  grant summary  judgment



            despite  an opposing party's claim that discovery would yield



            additional facts  where the  opposing party  has not  alleged



            specific   facts  that   could  be  developed   through  such



            discovery."  Taylor v. Gallagher, 737 F,2d 134, 137 (1st Cir.
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            1984).  Appellants alleged no such facts here.



                      We  have  reviewed  the  remainder  of  appellants'



            arguments and can  find no reason to disturb  the judgment of



            the district court.  Affirmed.
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