Santos-Santos v. Torres-Centeno , 842 F.3d 163 ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1782
    WILMARY SANTOS-SANTOS,
    Plaintiff, Appellant,
    v.
    REYNALDO TORRES-CENTENO, ET AL.,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
    Before
    Lynch, Selya, and Lipez,
    Circuit Judges.
    Eric C. Marion, with whom Law Office of Eric Marion was on
    brief, for appellant.
    Michelle Camacho-Nieves, Assistant Solicitor General of
    Puerto Rico, with whom Margarita L. Mercado-Echegaray, Solicitor
    General of Puerto Rico, was on brief, for appellee.
    November 23, 2016
    LIPEZ, Circuit Judge.            Appellant Wilmary Santos-Santos
    ("Santos"), an officer with the Puerto Rico Police Department
    ("PRPD"), filed this employment discrimination case against the
    Commonwealth    of   Puerto   Rico,    the   PRPD,   and   a   number   of    her
    coworkers under various federal and Puerto Rico statutes.               Santos
    alleges that she was transferred against her wishes to a different
    department within the PRPD after she co-signed a sexual harassment
    complaint against a coworker, acted as a witness in a separate
    investigation of that coworker, and filed an unrelated complaint
    regarding the misuse of police property by her superiors.               Santos
    sought compensatory and punitive damages, as well as an injunction
    barring the PRPD from further discrimination.
    The district court granted summary judgment for the
    defendants on all of Santos's claims in two rulings in August 2012
    and November 2014.      On appeal, Santos attempts to challenge both
    entries of summary judgment.          Because Santos failed to adhere to
    procedural     requirements    relating      to   the   dispositions     of     a
    magistrate judge as set forth by Federal Rule of Civil Procedure
    72(b) and Puerto Rico Local Rule 72(d), we affirm the district
    court's decisions without reaching the merits of Santos's claims.
    I.
    We recount in detail the complicated procedural history
    of this case because it is determinative of the appeal. Santos
    filed this action in January 2011. While several discovery motions
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    were pending before the district court, the defendants moved for
    summary judgment.   Instead of filing a standard opposition to the
    defendants' summary judgment motion, Santos, citing Rule 56(d) of
    the Federal Rules of Civil Procedure, filed a response asserting
    that she still required certain documents that were among her
    discovery requests to effectively counter the defendants' motion.
    In August 2012 the district court granted summary judgment in favor
    of defendants on nearly all of Santos's claims,1 finding that her
    attempted reliance on pending discovery related only to her First
    Amendment claim -- which the court dismissed for failing to state
    a claim upon which relief could be granted under Garcetti v.
    Ceballos, 
    547 U.S. 410
     (2006).2   Only Santos's retaliation claims
    under Title VII and Law 115 survived, and the court instructed
    Santos to file her opposition to the summary judgment motion on
    these issues.
    1 Santos's principal claims alleged violations of her free
    speech rights under the First Amendment, retaliation under Title
    VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17,
    and retaliation under Act No. 115 of December 20, 1990, 
    P.R. Laws Ann. tit. 29, §§ 194
    -194b ("Law 115").       She also alleged a
    conspiracy among her employer and coworkers to interfere with her
    civil rights under 
    42 U.S.C. § 1985
    , along with a number of other
    violations of federal and Puerto Rico laws.
    2 The court found that Santos failed to demonstrate that any
    of her comments for which she alleged retaliation in violation of
    the First Amendment were made while speaking in her capacity as a
    private citizen, which Garcetti requires. See 
    547 U.S. at 418
    .
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    After    Santos   filed    her    opposition   memorandum,   the
    district court dismissed her Title VII retaliation claims against
    individual defendants Gregorio Merced-Vázquez, Reynaldo Torres-
    Centeno, William Ruiz-Borrás, and Miguel Santiago-Rivera, and her
    Law 115 claim against William Ruiz-Borrás.           At that point, the
    surviving claims consisted of Santos's Title VII claims against
    the Commonwealth of Puerto Rico and the PRPD and her Law 115 claims
    against the Commonwealth of Puerto Rico, the PRPD, Merced-Vázquez,
    Torres-Centeno, and Santiago-Rivera.
    Defendants next filed a motion for reconsideration,
    asking the court to dismiss the case in its entirety, which the
    court denied.     While the defendants' motion for reconsideration
    was pending, Santos sought interlocutory review in this court of
    the order dismissing her other claims.         We concluded that we did
    not have jurisdiction to hear her appeal at that time, dismissed
    the interlocutory appeal without prejudice, and returned the case
    to the district court.
    Discovery thus proceeded as the case moved toward trial.
    In June 2014, however, defendants filed a second motion for summary
    judgment on the remaining claims in light of the Supreme Court's
    decision in University of Texas Southwestern Medical Center v.
    Nassar, 
    133 S. Ct. 2517
     (2013).3       Santos filed her opposition, and
    3 Nassar held that Title VII retaliation claims require the
    more stringent "but-for" causation standard of proof rather than
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    the   court    referred      the    matter   to        a    magistrate        judge,      who
    recommended that the motion be granted.                     Santos did not file an
    objection to the magistrate judge's report and recommendation
    within the fourteen-day deadline prescribed by Federal Rule of
    Civil Procedure 72(b) and Puerto Rico Local Rule 72(d).                                   On
    November 20, 2014, the district judge adopted the magistrate
    judge's    report    and     recommendation       in       full   and    entered      final
    judgment    dismissing       Santos's    claims    with       prejudice.             In   its
    dismissal order the court noted that "[a]bsent objection . . . [a]
    district court ha[s] a right to assume that [the affected party]
    agree[s] with the magistrate judge's recommendation" and that the
    court "needs only [to] satisfy itself by ascertaining that there
    is no 'plain error' on the face of the record."                     Santos-Santos v.
    P. R. Police Dep't., 
    63 F. Supp. 3d 181
    , 184 (D.P.R. 2014) (quoting
    Lopez-Mulero v. Velez-Colon, 
    490 F. Supp. 2d 214
    , 217-18 (D.P.R.
    2007)).
    On the same day that final judgment was entered, Santos
    responded     by    filing    a    "Motion   to    Reconsider           and    Set     Aside
    Memorandum and Order as Well as Judgment."                   Santos complained that
    her lawyer was out of the jurisdiction when the magistrate judge
    posted his report and recommendation and, hence, did not see that
    the more lenient "mixed-motive" causation standard permitted in
    Title VII discrimination claims grounded in race, color, religion,
    sex, or national origin. See 
    133 S. Ct. at 2534
    .
    - 5 -
    it had been issued until final judgment was entered.       She also
    asserted that because there was no docket entry informing parties
    of the motion's referral, her lawyer was never aware that it had
    been assigned to a magistrate judge.    Santos asked the court to
    set aside its judgment dismissing her case and requested that she
    be given an opportunity to object to the report and recommendation.
    The district court chose to view Santos's motion as a
    "request for reconsideration," but it responded by cautioning
    Santos as follows in an electronic docket order entered the
    following day:
    [T]he fact that a formal referral was not
    entered in this case is immaterial, since the
    record confirms that (i) the Report and
    Recommendation was notified to [Santos's
    attorney's] email address of record; (ii) it
    included a warning that failure to file
    specific objections within fourteen days would
    constitute a waiver of the right to appellate
    review . . . and (iii) as per [Santos's
    attorney's] admission, the lack of referral
    was not the reason behind his untimely request
    to "closely review, analyze and object" [to]
    the Report and Recommendation. . . . To the
    contrary, [Santos's attorney] admits that, due
    to    numerous    professional    commitments,
    yesterday, for the first time, he saw the
    Report and Recommendation because he "never
    checked the docket until today when the CM/ECF
    e-mails [were] received."       . . . This
    contention cannot serve as [the] basis for
    reconsideration of the order. See[] Santiago-
    Diaz v. Laboratorio Clinico y de Referencia
    del Este and Sara L[ó]pez MD, 
    456 F.3d 272
    ,
    276 n.3 (1st Cir. 2006) (A party is "fully
    chargeable with knowledge of what the docket
    disclosed.").     The Court, however, will
    consider the memorandum of law in support of
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    her request for reconsideration it has
    authorized to be filed before making a final
    determination in this case.
    Santos subsequently filed her memorandum in support of
    her motion for reconsideration on December 16, 2014, attaching an
    additional motion asking the district court to extend the original
    period for filing objections to the magistrate judge's report and
    recommendation.4   She argued that reconsideration was appropriate
    due to the excusable neglect of her attorney -- claiming for the
    first time that notification of the magistrate judge's issuance of
    the report and recommendation had ended up in her attorney's email
    "spam folder."
    The    court   accepted    Santos's   memorandum   of   law   and
    permitted her to file the additional motion on December 17, 2014,
    but it advised her in an electronic docket order that it would
    treat the additional motion as part of her original motion for
    reconsideration.    Defendants opposed Santos's motion, asserting
    that it was improper because it did not "seek[] to correct manifest
    errors of law, present newly discovered evidence, or [assert] an
    intervening change in law" -- the recognized bases for a motion to
    alter or amend a judgment under Federal Rule of Civil Procedure
    4 Santos also submitted her proposed objections. In her
    proposed objections she challenged the magistrate judge's findings
    on the but-for causation standard of proof required for her Title
    VII retaliation claims, but she also attempted to relitigate the
    claims that the court had dismissed two years earlier in its first
    summary judgment order.
    - 7 -
    59(e).5   See, e.g., Prescott v. Higgins, 
    538 F.3d 32
    , 45 (1st Cir.
    2008).    In a reply memorandum, Santos argued that her proposed
    objections to the magistrate judge's report and recommendation --
    describing an alleged manifest error of law or fact in the court's
    adoption of the magistrate judge's report and recommendation --
    and the excusable neglect of her attorney were sufficient to unwind
    the judgment. Defendants filed a final "Informative Motion," again
    urging the district court to reject Santos's argument on the ground
    that she failed to meet the standard for a motion to reconsider.
    On   June   10,   2015,    the    district   court   entered   an
    electronic order denying Santos's motion for reconsideration:
    The Court has carefully re-examined the
    arguments raised by plaintiff in support of
    her motion for reconsideration at Docket No.
    160 and finds no reason to deviate from its
    prior ruling, after adopting the Report and
    Recommendation. In her motion, plaintiff does
    not direct to any newly discovered evidence or
    an intervening change in the law; and has not
    shown that the Court's order was clearly
    unjust or based on a manifest error of law.
    Rather, she insists and elaborates upon her
    previous arguments and even asks the court to
    reconsider an order entered more than two (2)
    years ago. The court declines plaintiff's
    invitation.    As such, and absent a valid
    5 Santos's motion to reconsider did not reference any Federal
    Rule of Civil Procedure, but it appears that defendants assumed
    Santos's motion was a Rule 59(e) motion to amend or alter a
    judgment. Santos, herself, adopted this framework in her reply to
    the defendants' response. However, Santos was not asking the court
    to amend or alter its judgment, but in fact to vacate the judgment
    based on her attorney's excusable neglect. Hence, as we explain
    below, the motion is properly characterized as a Rule 60(b) motion
    for relief from a judgment or order.
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    ground   for   reconsidering   the   previous
    disposition,    plaintiff's     motion    for
    reconsideration at Docket No. 160 is DENIED.
    Santos then timely filed a notice of appeal, asking this court to
    review "the Judgment entered November 20, 2014, tolled by her
    Motion filed December 17, 2014 which was denied on June 10, 2015."6
    On appeal, Santos contends that the district court erred
    when it granted summary judgment for defendants on her First
    Amendment claims in its August 2012 order and when it granted
    summary judgment for defendants on her Title VII and Law 115 claims
    in November 2014.
    II.
    Summary judgment is proper when "there is no genuine
    dispute as to any material fact and the movant is entitled to
    judgment as a matter of law." Fed. R. Civ. P. 56(a); Conjugal
    P'ship Acevedo-Principe v. United States, 
    768 F.3d 51
    , 54 (1st
    Cir. 2014).   In a typical appeal from a district court's grant of
    6 Federal Rule of Appellate Procedure 4(a)(1)(A) typically
    requires that a notice of appeal be filed in the district court
    within 30 days after the entry of the judgment which the party
    wishes to appeal. However, as we note below, Santos's motion for
    reconsideration constituted a Rule 60(b) motion for relief from a
    judgment. When a party files any Rule 60 motion within 28 days of
    the entry of judgment -- as Santos did in this case -- the time to
    file an appeal runs from the entry of the order disposing of the
    Rule 60 motion.   See Fed. R. App. P. 4(a)(4)(A)(vi).      (Because
    Santos's December 17, 2014 motion was filed within 28 days of entry
    of final judgment, we need not decide whether the appropriate date
    to ascribe to her motion for reconsideration for purposes of
    Appellate Rule 4(a)(4)(A)(vi) was the date of her initial November
    20, 2014 motion or her December 17, 2014 follow-up motion.)
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    summary judgment, our review is de novo, and we view the facts in
    the light most favorable to the non-moving party -- in this case
    Santos.    Del Valle-Santana v. Servicios Legales de P.R. Inc., 
    804 F.3d 127
    , 129 (1st Cir. 2015).
    But   this   is   not   a   typical   appeal.    Our   review   is
    contingent on a party's compliance with procedural rules that
    prescribe how issues may be preserved for appeal.             Under Federal
    Rule of Civil Procedure 72(b) and Puerto Rico Local Rule 72(d), a
    party who wishes to challenge a magistrate judge's report and
    recommendation must file written objections within fourteen days.
    Likewise, it has long been the rule in this circuit that under the
    provisions of the Federal Magistrates Act, 
    28 U.S.C. § 636
    (b),
    parties who fail to file objections to a magistrate judge's report
    and recommendation lose their right to appellate review.                Park
    Motor Mart, Inc. v. Ford Motor Co., 
    616 F.2d 603
    , 605 (1st Cir.
    1980) ("We conclude that a party 'may' file objections within [the
    statutorily prescribed number of] days or he may not, as he
    chooses,    but    he    'shall'        do   so   if   he   wishes   further
    consideration."); see also Sch. Union No. 37 v. United Nat'l Ins.
    Co., 
    617 F.3d 554
    , 564 (1st Cir. 2010) ("[O]nly those issues fairly
    raised by the objections to the magistrate's report are subject to
    review in the district court and those not preserved by such
    - 10 -
    objection are precluded on appeal." (quoting Keating v. Sec'y of
    Health & Human Servs., 
    848 F.2d 271
    , 275 (1st Cir. 1988))).7
    As noted above, Santos failed to object to the magistrate
    judge's report and recommendation.            The magistrate judge warned
    her that "[f]ailure to comply with [Puerto Rico Local Rule 72(d)]
    precludes further appellate review."            Santos's failure to comply
    with this rule bars us from examining the merits of her appeal.
    After entry of final judgment, Santos filed a motion for
    reconsideration, asking the district court to reopen the suit and
    providing     the   objections   that   she   would     have    lodged   to   the
    magistrate's report and recommendation if she had not missed the
    deadline set forth by Federal Rule of Civil Procedure 72(b) and
    Puerto Rico Local Rule 72(d).           Santos's motion stated that she
    would not have missed the deadline but for her attorney's excusable
    neglect in failing to realize that the report and recommendation
    had been issued.       "Excusable neglect" is listed as one of the
    specific bases for "grounds for relief from a final judgment,
    order,   or    proceeding"   under    Federal    Rule   of     Civil   Procedure
    7 The Supreme Court has upheld the application of this rule.
    See Thomas v. Arn, 
    474 U.S. 140
    , 155 (1985) ("[A] court of appeals
    may adopt a rule conditioning appeal, when taken from a district
    court judgment that adopts a magistrate's recommendation, upon the
    filing of objections with the district court identifying those
    issues on which further review is desired. Such a rule, at least
    when it incorporates clear notice to the litigants and an
    opportunity to seek an extension of time for filing objections is
    a valid exercise of the supervisory power that does not violate
    either the Federal Magistrates Act or the Constitution.").
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    60(b)(1).     Although Santos never cited the rule in her motion to
    reconsider, her motion is properly characterized as a Rule 60(b)
    motion for relief from the judgment.8     Cf. United States v. $23,000
    in United States Currency, 
    356 F.3d 157
    , 165 & n.9 (1st Cir. 2004)
    (distinguishing a Rule 59(e) motion to modify a judgment from a
    Rule 60(b) motion to vacate a judgment).      Demonstrating excusable
    neglect is a "demanding standard."       
    Id. at 164
    .   The trial judge
    "has wide discretion" in this arena, and "we will not meddle unless
    we are persuaded that some exceptional justification exists."      
    Id. at 164-65
    .    Such an "exceptional justification" must be something
    more than an attorney's failure to monitor the court's electronic
    docket.      "Unfortunately for [Santos,] routine carelessness by
    counsel leading to a late filing is not enough to constitute
    excusable neglect."    Negron v. Celebrity Cruises, Inc., 
    316 F.3d 60
    , 62 (1st Cir. 2003).       The district court acted within its
    discretion when it denied Santos's motion for reconsideration.
    III.
    In her brief Santos urges us to consider her First
    Amendment claim that was dismissed by the district court in August
    8 In its denial of Santos's motion for reconsideration, the
    district court employed the framework of a Rule 59(e) motion, which
    was introduced by defendants in their opposition to Santos's motion
    and adopted by Santos, herself, in her reply.       But as we have
    noted, vacating a judgment on the ground of excusable neglect by
    one party's attorney is governed by Rule 60(b), not Rule 59(e).
    Hence, we analyze whether the district court's denial of Santos's
    motion for reconsideration was proper under Rule (60)(b).
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    2012.   Her notice of appeal, however, refers only to the district
    court's November 2014 decision to accept the magistrate judge's
    report and recommendation on her remaining Title VII and Law 115
    claims and its denial of her motion to reconsider the entry of
    final judgment. "Even though notices of appeal are to be liberally
    construed,    if    the    appellant     'chooses    to    designate     specific
    determinations in [her] notice of appeal -- rather than simply
    appealing from the entire judgment -- only the specified issues
    may be raised on the appeal.'"             Brooks v. AIG SunAmerica Life
    Assurance    Co.,    
    438 F.3d 579
    ,    585   (1st      Cir.   2007)   (quoting
    Constructora Andrade Gutiérrez, S.A. v. Am. Int'l. Ins. Co. of
    P.R., 
    467 F.3d 38
    , 43 (1st Cir. 2006)).             By expressly asking us to
    review specific decisions of the district court to the exclusion
    of all other district court decisions, Santos gave neither this
    court nor appellees proper notice that she intended to dispute the
    earlier ruling on her First Amendment claim, leaving us without
    jurisdiction to review it.         See Constructora Andrade Gutiérrez,
    467   F.3d   at    44.     "[D]esignating       a   completely     separate   and
    independent order loudly proclaims [a] plaintiff's intention not
    to appeal from the former order. . . . As an ancient maxim teaches,
    'expressio unius est exclusio alterius.'"              Kotler v. Am. Tobacco
    Co., 
    981 F.2d 7
    , 11 (1st Cir. 1992) (citation omitted).
    Affirmed.
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