Fontanillas-Lopez v. Morell Bauzá Cartagena & Dapena, LLC ( 2016 )


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  •             United States Court of Appeals
    For the First Circuit
    No. 15-1326
    LOURDES DEL ROSARIO FONTANILLAS-LOPEZ,
    Plaintiff, Appellant,
    MILDRED M. LOPEZ-MARTINEZ; LUIS A. FONTANILLAS-PINO,
    Plaintiffs,
    v.
    MORELL BAUZÁ CARTAGENA & DAPENA, LLC; PEDRO A. MORELL-LOSADA;
    ANTONIO BAUZÁ SANTOS; EDGARDO CARTAGENA-SANTIAGO; RAMÓN E.
    DAPENA-GUERRERO; LOURDES M. VÁZQUEZ,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
    Before
    Kayatta and Barron, Circuit Judges,
    and McAuliffe,* District Judge.
    Roberto Márquez-Sánchez on brief for appellant.
    Rosangela Sanfilippo-Resumil on brief for appellees.
    *   Of the District of New Hampshire, sitting by designation.
    August 5, 2016
    KAYATTA, Circuit Judge.          In March 2012, Lourdes del
    Rosario Fontanillas-Lopez ("Fontanillas") filed sex discrimination
    claims under federal and Puerto Rico law against her former
    employer, Morell Bauzá Cartagena & Dapena, LLC ("MBCD"), and
    several individual defendants.      Following discovery, the district
    court granted summary judgment in favor of MBCD on Fontanillas's
    federal claims and, having dismissed all of Fontanillas's other
    claims,   later    awarded    attorneys'     fees      to    the   defendants.
    Fontanillas moved for relief from the summary judgment order and
    for reconsideration of the fees award.          The district court denied
    both motions.      On appeal, Fontanillas challenges the denial of
    both motions, as well as the denial of her request to exceed the
    normal page limits in filing those motions.                 She also directly
    challenges the award of attorneys' fees to the defendants.                For
    the following reasons, we affirm.
    I.   Background
    Fontanillas began working as an attorney in MBCD's Tax
    Department in January 2009.1        Fontanillas-Lopez v. Morel Bauza
    Cartagena & Dapena LLC ("Fontanillas I"), 
    995 F. Supp. 2d 21
    , 28
    (D.P.R. 2014).     Fontanillas's supervisor soon grew concerned with
    Fontanillas's     poor   relationships   with    her    female     co-workers,
    1 At that time, MBCD was operating under a different name.
    Fontanillas-Lopez v. Morel Bauza Cartagena & Dapena LLC, 
    995 F. Supp. 2d 21
    , 28 (D.P.R. 2014). For simplicity, we refer to
    Fontanillas's former employer as MBCD throughout.
    - 3 -
    substandard work performance, and failure to comply with MBCD
    rules.    
    Id. at 40
    .     On the supervisor's recommendation, MBCD's
    capital partners decided in August 2011 to terminate Fontanillas.
    
    Id.
       Several months later, Fontanillas filed a complaint against
    MBCD and its co-owners and administrator in federal district
    court.2   Fontanillas's complaint raised sexual harassment, gender
    discrimination, and retaliation claims under Puerto Rico law and
    Title VII of the federal Civil Rights Act of 1964, 42 U.S.C.
    §§ 2000e et seq., as well as claims sounding in Puerto Rico
    employment and tort law.
    Almost a year into the proceedings, during the course of
    discovery, the individual defendants moved to dismiss the federal
    claims against them.     The district court granted this motion over
    Fontanillas's     opposition,   leaving   MBCD   as   the   lone   remaining
    defendant    on   Fontanillas's   federal    claims.        Several   months
    thereafter, the defendants moved for summary judgment on all
    remaining claims.      In a thorough written opinion, the district
    court granted summary judgment in favor of MBCD on Fontanillas's
    federal claims and dismissed Fontanillas's supplemental claims
    under Puerto Rico law without prejudice.          Fontanillas I, 995 F.
    Supp. 2d at 53.
    2
    Fontanillas's parents were also initially plaintiffs in this
    suit.   However, at the parents' request, the district court
    dismissed all their claims with prejudice.
    - 4 -
    Following entry of judgment on February 7, 2014, the
    defendants moved for attorneys' fees.               The district court, in a
    November   18,    2014,    written     opinion,     accepted        the    defendants'
    argument that Fontanillas had continued to litigate even after she
    had been "duly apprised" during the course of discovery that "her
    claims were devoid of any merit." Fontanillas-Lopez v. Morel Bauza
    Cartagena & Dapena LLC ("Fontanillas II"), 
    59 F. Supp. 3d 420
    , 425
    (D.P.R.    2014).         In    consequence,      the    district         court   found
    Fontanillas      liable    to    the   defendants       for   the    $53,662.50     in
    attorneys' fees they had accrued following the point at which, in
    the district court's estimation, Fontanillas should have been
    aware that she held a losing hand.             Id. at 427.
    On December 16, 2014, Fontanillas filed a 40-page motion
    for reconsideration of the attorneys' fees award under Federal
    Rule of Civil Procedure 59(e)3 ("the Rule 59(e) motion") and a
    motion for relief from the underlying summary judgment order under
    Federal Rule of Civil Procedure 60(b) ("the Rule 60(b) motion"),
    the latter of which was accompanied by a 39-page memorandum.4
    3 Fontanillas characterized this motion as a motion pursuant
    to "Federal Rule of Civil Procedure 59 and/or 60." We construe
    the motion to be a motion to alter or amend the judgment pursuant
    to Federal Rule of Civil Procedure 59(e).    See Marie v. Allied
    Home Mortg. Corp., 
    402 F.3d 1
    , 7 (1st Cir. 2005).
    4 MBCD observes that certain exhibits were in fact filed on
    December 17, 2014, which fell outside the 28-day period following
    the attorneys' fees award that constituted the only window within
    which a Rule 59(e) motion as to that award could be filed. See
    Fed. R. Civ. P. 59(e). But these exhibits were filed in connection
    - 5 -
    Because these filings exceeded the 25-page limit applicable to
    certain motions and memoranda under the district court's local
    rules, see D.P.R. Civ. R. 7(d), Fontanillas filed a contemporaneous
    motion for leave to submit filings in excess of the allowed pages.
    On January 23, 2015, the district court denied Fontanillas leave
    to exceed the page limits and so struck her Rule 59(e) motion and
    her Rule 60(b) motion, with its accompanying memorandum, from the
    record.       The order denying leave invited Fontanillas to re-file
    compliant motions, which she did six days later, on January 29,
    2015.5
    While awaiting decision on these motions, Fontanillas
    filed    on    February   23,   2015,   a   notice   of   appeal   as   to   the
    November 18, 2014, award of attorneys' fees and the January 23,
    2015, denial of leave to file in excess of the local page limits.
    with Fontanillas's Rule 60(b) motion, which was not constrained by
    the same filing deadline. See 
    id. 60
    (c). Accordingly, we need
    not address the consequence, if any, of a tardy exhibit filed
    appurtenant to a timely motion.
    5 Fontanillas does not explain her assumption that her filings
    were subject to the 25-page limit applicable under the local rules
    to "motions to dismiss, for judgment on the pleadings, requesting
    summary judgment, for injunctive relief, or appeals from a decision
    by a magistrate judge," and not to the 15-page limit applicable to
    "[n]on-dispositive motions and memoranda or oppositions to those
    motions." D.P.R. Civ. R. 7(d). Neither the defendants nor the
    district court intimated below that Fontanillas's newly filed Rule
    59(e) motion and memorandum in support of the Rule 60(b) motion,
    which were twenty-five and twenty pages, respectively, were
    overlength, so we, like Fontanillas, assume that her January 29,
    2015, filings were compliant.
    - 6 -
    Just after the initial appellate briefing schedule had been set,
    the district court issued an opinion and order on September 30,
    2015,    denying   Fontanillas's    Rule     59(e)   and   60(b)   motions.
    Fontanillas-Lopez     v.    Morel   Bauza      Cartagena   &   Dapena   LLC
    ("Fontanillas III"), 
    136 F. Supp. 3d 152
    , 160 (D.P.R. 2015).
    Fontanillas then timely amended her notice of appeal to include
    challenges to these denials. In all, Fontanillas asks us to review
    four of the district court's rulings:          (1) the denial of leave to
    submit filings in excess of the local page limits; (2) the award
    of attorneys' fees to the defendants; (3) the denial of her Rule
    59(e) motion to reconsider that award; and (4) the denial of her
    Rule 60(b) motion for relief from the underlying summary judgment
    order.   We consider these rulings in turn.
    II.   Analysis
    A.   Leave to Exceed Local Page Limits
    Fontanillas's first claim of error is that the district
    court abused its discretion in declining to allow her Rule 59(e)
    motion and the memorandum in support of her Rule 60(b) motion to
    exceed the page limits established by the district court's local
    rules.     Fontanillas     recognizes   that    district   courts'   "broad
    latitude in administering local rules" entitles those courts "to
    demand adherence to specific mandates contained in th[ose] rules."
    Air Line Pilots Ass'n v. Precision Valley Aviation, Inc., 
    26 F.3d 220
    , 224 (1st Cir. 1994). But Fontanillas seeks to turn this broad
    - 7 -
    discretion to her advantage, arguing that because the District of
    Puerto Rico's local rules permit a district court to waive the
    applicable page limits "by prior leave," D.P.R. Civ. R. 7(d), the
    district court here had "ample latitude" to allow her overlength
    filings.
    Fontanillas's argument flips abuse-of-discretion review
    on its head by suggesting that we may reverse the district court
    merely   because   it   could   have     exercised   its   "ample   latitude"
    differently.    This is not the prerogative of an appellate court.
    Cf. NEPSK, Inc. v. Town of Houlton, 
    283 F.3d 1
    , 7 (1st Cir. 2002)
    (finding it "within the district court's discretion" to enforce
    local rules where "the result does not clearly offend equity").
    Fontanillas did not offer the district court any reason to grant
    an exception to the usual page restrictions beyond the bare
    assertion that her arguments required her to "address numerous
    issues of fact and quote extensively from the evidence in the
    case."   Nor does Fontanillas provide a more robust explanation on
    appeal as to why she required the extra pages she sought. Instead,
    she observes that the district court had previously granted the
    defendants'    motion   to   file   an    overlength   motion   for   summary
    judgment and suggests that "[w]hat's good for the goose, is good
    for the gander."        The district court, though, was within its
    discretion to find that the defendants, having the burden of
    persuasion in trying to prove a negative (i.e., that there are no
    - 8 -
    disputed issues of material fact supportive of a discrimination
    claim) and the need to anticipate arguments that might or might
    not be made in response, presented a more persuasive case for an
    exception to the usual page limits than did Fontanillas.              Under
    these circumstances, the district court did not abuse its wide
    discretion in holding Fontanillas to the default standards the
    local rules establish as appropriate for the typical litigant.
    B.     Attorneys' Fees
    1.   Jurisdiction
    Fontanillas next appeals both the award of attorneys'
    fees to the defendants and the district court's denial of her
    Rule    59(e)   motion   for   reconsideration   of   that   award.    The
    defendants accept that this court has jurisdiction over the latter
    appeal but argue that we do not have jurisdiction over the former.
    This distinction could matter:        on appeal from the denial of a
    Rule 59(e) motion, it is not fully settled to what extent the
    reviewing court may revisit the underlying judgment, see McKenna
    v. Wells Fargo Bank, N.A., 
    693 F.3d 207
    , 213–14 & n.5 (1st Cir.
    2012), and, in any event, "Rule 59(e) relief is granted sparingly,
    and only when 'the original judgment evidenced a manifest error of
    law, if there is newly discovered evidence, or in certain other
    narrow situations,'" Biltcliffe v. CitiMortgage, Inc., 
    772 F.3d 925
    , 930 (1st Cir. 2014) (quoting Global Naps, Inc. v. Verizon New
    Eng., Inc., 
    489 F.3d 13
    , 25 (1st Cir. 2007)); see also Ira Green,
    - 9 -
    Inc. v. Military Sales & Serv. Co., 
    775 F.3d 12
    , 28 (1st Cir. 2014)
    ("[R]evising a final judgment [pursuant to Rule 59(e)] is an
    extraordinary remedy . . . .").
    Whether we have jurisdiction to entertain the merits of
    Fontanillas's challenge to the attorneys' fees award turns on
    whether the notice of appeal seeking review of that award was
    timely.   A civil appellant must typically file a notice of appeal
    "within 30 days after entry of the judgment or order appealed
    from."    Fed. R. App. P. 4(a)(1)(A).            The district court entered
    its   order    granting     attorneys'        fees    to    the    defendants       on
    November 18, 2014, and Fontanillas filed her notice of appeal as
    to that order on February 23, 2015--well outside the usual 30-day
    window.   Without more, this timeline would defeat our jurisdiction
    over the appeal.       See McKenna, 693 F.3d at 213 ("[I]t is settled
    that a civil appeal filed out of time is barred, [and] that the
    error in timing cannot be waived . . . .").
    There is a relevant exception, however.              When a litigant
    files a timely Rule 59(e) motion asking the district court to
    reconsider    a     judgment,   "the   time    to    file   an    appeal"    of    the
    underlying judgment "runs . . . from the entry of the order
    disposing     of"     the   Rule   59(e)      motion.       Fed.     R.     App.    P.
    4(a)(4)(A)(iv). Here, Fontanillas filed a Rule 59(e) motion within
    the requisite 28 days, see Fed. R. Civ. P. 59(e), after entry of
    the fees award.       The district court then "dispos[ed] of," Fed. R.
    - 10 -
    App. P. 4(a)(4)(A)(iv), that timely motion on January 23, 2015, by
    rejecting it as overlength, and Fontanillas filed her notice of
    appeal   of    the    underlying   fees    award    within       30    days      of   that
    disposition.          It   would   seem,       then,    that     Fontanillas           has
    appropriately        availed   herself    of   an   exception         to   the    normal
    jurisdictional window for appeal.
    The    defendants    nonetheless         respond    that        when     the
    district court rejected Fontanillas's timely filed Rule 59(e)
    motion as overlength, it struck that motion from the record
    entirely.     By taking this step, the defendants argue, the district
    court created a record that treated Fontanillas's Rule 59(e) motion
    as though it had never been filed and, in so doing, rendered
    Fontanillas's submission of that timely but noncompliant motion
    incapable of having delayed, or "tolled," the beginning of the 30-
    day appeal window triggered by the November 18, 2014, fees award.
    Because we have already upheld the district court's decision to
    restrict Fontanillas's timely but noncompliant Rule 59(e) motion
    to the ordinarily applicable page limits, and because Fontanillas
    raises no challenge to the district court's act of striking that
    motion as the specific means of enforcing its decision, the
    determinative question is whether, as defendants urge, the order
    striking Fontanillas's timely motion from the record vitiated the
    tolling effect that the motion would have had if the district court
    - 11 -
    had simply denied it, whether on the merits or for noncompliance
    with the local rules, without striking it.
    At first glance, our decision in Air Line Pilots Ass'n
    v. Precision Valley Aviation, Inc., 
    26 F.3d 220
     (1st Cir. 1994),
    would seem to suggest so.        In Air Line Pilots, the appellant had
    filed a timely Rule 59(e) motion in the district court, seeking
    reconsideration of a summary judgment order.               
    Id. at 222
    .        The
    motion, however, failed to comply with an applicable local rule.
    
    Id.
       The clerk of court refused to accept the noncompliant motion
    for filing, and the district court endorsed the clerk of court's
    exclusion of the motion from the record.                  
    Id.
         Although the
    appellant   then    submitted    a   compliant    Rule    59(e)    motion,    the
    statutory window for filing original Rule 59(e) motions had closed
    in the interim, and the district court rejected the compliant
    motion as untimely.      
    Id.
     at 222–23.
    The    appellant    filed   a   notice   of   appeal    as   to   the
    underlying summary judgment order within 30 days of the order
    rejecting the compliant but untimely Rule 59(e) motion (though not
    within 30 days of the summary judgment order itself nor of the
    district court's endorsement of the clerk's exclusion of the
    noncompliant filing from the record).            
    Id. at 223
    .       We held that
    we lacked jurisdiction over the appeal.           
    Id. at 226
    .       An untimely
    Rule 59(e) motion does not toll the 30-day window for filing an
    appeal, 
    id.
     at 223–24, and we held that the untimely Rule 59(e)
    - 12 -
    motion could not relate back to the filing date of the timely but
    noncompliant Rule 59(e) motion because--critically--that earlier
    motion, having never become part of the record, was "a nullity,"
    
    id. at 225
    .
    The defendants seize upon this characterization of a
    motion that never became part of the record and seek to extend it
    to a motion that was filed and then later struck.        But central to
    the reasoning in Air Lines Pilots was a critical factor altogether
    absent here.    Specifically, the New Hampshire Local Rules at issue
    in Air Line Pilots expressly stated that "[t]he Clerk shall not
    accept any motions not in compliance with procedures outlined in
    these Rules."       
    Id.
     at 224 n.5 (alteration in original) (quoting
    D.N.H. Civ. R. 11(a)(1) (1994)).        That provision, we found, both
    confirmed that "the local rules do not accord a noncompliant motion
    any force or effect," 
    id. at 225
    , and provided an "explicit[]
    warn[ing]" or "red flag[]" for litigants as to the inevitable
    consequence    of    noncompliance,   
    id. at 224
    .   Eliminating   any
    "lingering doubt" as to the local rules' treatment of noncompliant
    motions was the district court's statement in its order refusing
    the noncompliant motion "that the old motion was dead and that a
    new motion, having a new filing date, would be required."        
    Id. at 225
    .
    Here, in contrast, there is nothing in Puerto Rico's
    local rules warning a litigant that an overlength motion or, for
    - 13 -
    that matter, an otherwise noncompliant motion, such as a motion
    that lacks page numbers or a motion that is not "stapled or
    otherwise attached," D.P.R. Civ. R. 7(d), is to be given no tolling
    effect whatsoever, even if initially accepted for filing.        Nor did
    the district court construe the local rules to require as much.
    The district court's order striking Fontanillas's noncompliant
    Rule 59(e) motion reads:
    ORDER denying . . . Motion for Leave to File
    motion in excess of pages allowed by local
    rule [7(d)].      [Fontanillas's Rule 59(e)
    motion, as well as her Rule 60(b) motion and
    accompanying memorandum] are hereby stricken
    from the record. Should the plaintiff wish to
    re-file these motions, they must comply with
    the local rules' page limit.
    Nothing in this order implies that the motion was wholly without
    effect during the period it sat, as in fact filed, under the
    district court's consideration.
    That said, Air Line Pilots did suggest in dicta that New
    Hampshire's local rules may not have been dispositive to that
    case's outcome.      The Air Line Pilots court observed that the local
    rule directing the clerk of court to refuse any noncompliant
    filings was in tension with a then-current provision of the Federal
    Rules   of   Civil   Procedure--substantially   identical   to   today's
    Rule 5(d)(4)--which provided that "[t]he clerk shall not refuse to
    accept for filing any paper presented for that purpose solely
    because it is not presented in proper form as required by [the
    - 14 -
    Federal Rules of Civil Procedure] or any local rules or practices."
    Air Line Pilots, 
    26 F.3d at
    227 n.7 (alteration in original)
    (quoting   Fed.   R.   Civ.   P.   5(e)   (1994)).   Observing   that   the
    appellant had waived any reliance on the federal rule, the court
    nevertheless opined in dicta that this waiver was likely harmless
    because the district court's endorsement of the clerk's refusal to
    file the noncompliant motion "le[ft] the record in essentially the
    same posture as though the motion had been received and then
    stricken."     
    Id.
         The court thus implied that, even had the
    appellant successfully challenged New Hampshire's local rule, the
    district court would have had authority to nullify the noncompliant
    Rule 59(e) motion and that striking the motion from the record
    would have been equivalent to doing so.
    Whatever the force of this dicta, it was issued in the
    context of a different jurisdictional question than the one we
    face here.     In Air Line Pilots, the appellant had not filed a
    notice of appeal within 30 days of the district court's endorsement
    of the clerk's refusal to file the noncompliant Rule 59(e) motion.
    It was therefore immaterial whether that endorsement was itself an
    "order disposing of," Fed. R. App. P. 4(a)(4)(A), a Rule 59(e)
    motion:    even had we found it to be such an order, such that it--
    rather than the underlying summary judgment order--triggered the
    onset of the 30-day window for appeal, the appellant's notice of
    appeal would have been untimely regardless.            Accordingly, the
    - 15 -
    appellant in Air Line Pilots relied instead on the argument that
    a later-filed compliant motion could relate back to the date of a
    timely but noncompliant motion that had not become part of the
    record, and it was this argument that Air Line Pilots rejected.
    We need not determine, then, whether Air Line Pilots'
    rejection of that argument controls where, as here, there is no
    local rule providing that a noncompliant motion is a nullity or
    indeed where the district court specifically invites re-filing
    after striking a noncompliant motion. Cf. Lexon Ins. Co. v. Naser,
    
    781 F.3d 335
    , 339–40 (6th Cir. 2015) (an invited revision of a
    timely but noncompliant Rule 59(e) motion related back to the
    filing date of the original, noncompliant motion, even though that
    original motion had been stricken from the record).         Even assuming
    that it does, the district court's order rejecting Fontanillas's
    Rule 59(e) motion for its noncompliance with the local rules was
    an   "order   disposing   of"   that    motion,     Fed.    R.     App.   P.
    4(a)(4)(A)(iv),   notwithstanding      the   fact    that        the   order
    "dispos[ed] of" the Rule 59(e) motion by, in particular, striking
    it from the record.   Interpreting the order not as a disposition
    of a botched motion but rather as some sort of incantation that
    not only voided the noncompliant Rule 59(e) motion's future effects
    but also conclusively established that the motion had never existed
    in the first place would render the order striking that nonexistent
    motion a logical incongruity and, more importantly, would allow
    - 16 -
    metaphysical niceties to deprive the parties of a resolution on
    the merits.      See Krupski v. Costa Crociere S. p. A., 
    560 U.S. 538
    ,
    550 (2010) (describing "the preference expressed in the Federal
    Rules of Civil Procedure in general . . . for resolving disputes
    on their merits").6
    We therefore hold that, at least barring any sort of
    contrary contextual indicators in the local rules or in the
    district court's interpretation of those rules, a district court's
    order       striking   a   Rule    59(e)     motion    from   the    record   for
    noncompliance with local rules is an order disposing of that
    motion, such that the order's entry represents the beginning of
    the 30-day window for appealing the judgment that forms the
    underlying      subject    of     the   Rule   59(e)    motion.       Therefore,
    Fontanillas's noncompliant Rule 59(e) motion of December 16, 2014,
    tolled the onset of the 30-day window for appeal of the attorneys'
    fees award until the district court disposed of that motion by
    striking it from the record on January 23, 2015.                    As a result,
    6
    We recognize that the Sixth Circuit's opinion in Lexon
    Insurance Co. v. Naser, 
    781 F.3d 335
     (6th Cir. 2015), declined to
    treat a district court's order striking a noncompliant Rule 59(e)
    motion as an order "disposing of" that motion where the order
    invited re-filing and so "lacked the requirements of finality
    integral to an order 'disposing of' a motion," id. at 339. Lexon,
    however, rejected the proposition that we here assume to be true
    --that even an expressly invited revision of a timely but
    noncompliant motion that has been struck from the record does not
    relate back to the date of the original, timely motion, see id. at
    339–40--so that case's persuasive force is correspondingly
    attenuated.
    - 17 -
    Fontanillas's February 23, 2015, notice of appeal as to the fees
    award was timely filed, and, our jurisdiction assured, we may now
    turn to the merits of that appeal.
    2.   Merits
    The default rule in American litigation is that all
    litigants must pay their own attorneys' fees.             See Christiansburg
    Garment Co. v. EEOC, 
    434 U.S. 412
    , 415 (1978). Title VII, however,
    overrides the default by expressly providing that "[i]n any action
    or proceeding under [Title VII] the court, in its discretion, may
    allow the prevailing party . . . a reasonable attorney's fee
    (including    expert    fees)   as   part   of    the   costs."     42    U.S.C.
    § 2000e-5(k).       Fontanillas does not dispute that the defendants
    were the "prevailing part[ies]," id., in her discrimination suit.
    Therefore, in line with the text of Title VII, we ask whether the
    district court acted within its discretion in awarding attorneys'
    fees to the prevailing defendants.               See EEOC v. Caribe Hilton
    Int'l, 
    821 F.2d 74
    , 76 (1st Cir. 1987) (per curiam).
    The Supreme Court has provided specific guidance as to
    "what standard should inform a district court's discretion in
    deciding whether to award attorney's fees to a successful defendant
    in a Title VII action."         Christiansburg Garment Co., 
    434 U.S. at 417
       (emphasis     omitted).     Because   excessive     generosity      toward
    prevailing    defendants    would    "substantially      add   to   the   risks
    inhering in most litigation and would undercut the efforts of
    - 18 -
    Congress to promote the vigorous enforcement of the provisions of
    Title VII" by discouraging private plaintiffs, "a plaintiff should
    not be assessed his opponent's attorney's fees unless a court finds
    that his claim was frivolous, unreasonable, or groundless, or that
    the plaintiff continued to litigate after it clearly became so."
    
    Id. at 422
    .       Thus, "an award of fees in favor of a prevailing
    plaintiff in a civil rights suit is 'the rule, whereas fee-shifting
    in favor of a prevailing defendant is the exception.'"        Lamboy-
    Ortiz v. Ortiz-Vélez, 
    630 F.3d 228
    , 236 (1st Cir. 2010) (quoting
    Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 
    38 F.3d 615
    ,
    618 (1st Cir. 1994)).
    In finding that this case was such an exception, the
    district court did not express the view that Fontanillas's suit
    was frivolous when filed.      See Fontanillas II, 59 F. Supp. 3d at
    423.       Rather, it determined that this case was among the "rare
    occasions," Lamboy-Ortiz, 
    630 F.3d at 241
    , in which litigation
    that was not necessarily frivolous at the outset continued past
    the moment at which it became clear that the claims asserted were
    "frivolous and without foundation," Fontanillas II, 59 F. Supp. 3d
    at 425.      That revelatory moment, according to the district court,
    was the taking of Fontanillas's deposition testimony.7     Id.
    7
    Although Fontanillas's deposition on October 3 and 4, 2012,
    was the point beyond which the district court found continued
    litigation to be frivolous, the defendants requested fees only for
    work done after December 17, 2012, the date of a letter they sent
    - 19 -
    With the arguable exception of several beside-the-point
    and underdeveloped assertions made in appealing the denial of her
    Rule 60(b) motion, Fontanillas offers no challenge to the district
    court on this point.        Making no merits-based argument against the
    district court's finding that her deposition testimony revealed
    her   suit     to   be   frivolous,   she   simply   warns    against   "the
    understandable temptation to engage in post hoc reasoning by
    concluding that, because a plaintiff did not ultimately prevail,
    his action must have been unreasonable or without foundation."
    Christiansburg Garment Co., 
    434 U.S. at
    421–22.              But Fontanillas
    gives us no reason to think that the district court engaged in
    such ex post thinking, as she does not even attempt to explain
    why, viewed ex ante, her case appeared sufficiently well founded
    to    merit     continued     litigation    following   her      deposition.
    Certainly, Fontanillas contends generally that her case might have
    prevailed had it not foundered on the district court's "harsh
    application of a Local Rule that excluded [her] otherwise valid
    evidence to controvert MBCD's allegedly uncontested facts," but
    her appellate brief does not specifically reference a single piece
    Fontanillas's   counsel  to  point   out  the   implications   of
    Fontanillas's deposition. The district court, then, used the date
    of the letter rather than the dates of the deposition in
    calculating the fees award. See Fontanillas II, 59 F. Supp. 3d at
    426.
    - 20 -
    of excluded evidence that would have strengthened her case, and we
    have found none.
    Instead, Fontanillas seems to argue that the district
    court abused its discretion by impermissibly basing its fees award
    in part on her conduct during discovery and not on the frivolity
    of her claims or, alternatively, by using fee-shifting as a
    substitute for sanctions.       See Indep. Fed'n of Flight Attendants
    v. Zipes, 
    491 U.S. 754
    , 761 (1989) ("[U]nless the plaintiff's
    action is frivolous a district court cannot award fees to the
    prevailing Title VII defendant."); Fed. R. Civ. P. 11(c)(5)(A)
    (court may not impose monetary sanctions on a represented party
    for advancing claims that are unwarranted by existing law).              But
    although     the   district     court   made     passing     reference    to
    Fontanillas's litigation conduct and other factors, such as her
    refusal to voluntarily dismiss her federal claims against the
    individual defendants, it is clear from the district court's
    opinion that the basis for the fees award was its view that
    "Fontanillas was duly apprised that her claims were devoid of any
    merit"     following   her    deposition   and   that      she   nonetheless
    "continued to vexatiously and unreasonably litigate a claim that,
    after the taking of her deposition, had clearly become frivolous
    and without foundation."       Fontanillas II, 59 F. Supp. 3d at 425.
    Again eschewing any argument as to the non-frivolity of
    her discrimination claims, Fontanillas next contests the notion
    - 21 -
    that she sought to continue litigating, pointing to a voluntary
    motion to dismiss with prejudice she submitted on October 7, 2013,
    after the district court, having made a "perfunctory review" of
    the defendants' summary judgment motion, had "forewarned [her] of
    the possibility that her claims be summarily dismissed and that
    attorney fees be awarded to the Defendants upon dismissal" if the
    district court determined that those claims were frivolous.                      Id.
    at 424.     Fontanillas concedes that the district court acted within
    its discretion in denying her motion to dismiss at that late stage,
    but she argues that, in light of her willingness to accept a
    dismissal     with    prejudice,    it     was   an    abuse   of   discretion    to
    determine that she acted inappropriately in continuing to litigate
    the case after the district court had essentially refused to allow
    her to surrender.
    Assuming that we would ordinarily agree that a plaintiff
    may   not   be    saddled   with    her    opponents'      attorneys'    fees    for
    continuing       to   litigate     after     her      unconditional     motion    to
    voluntarily dismiss with prejudice is denied, the problem for
    Fontanillas is that she did not simply move to dismiss with
    prejudice.       Rather, she moved to dismiss "with prejudice and
    without the imposition of costs, expenses or attorney's fees."
    (Emphasis supplied.)        In essence, Fontanillas told the district
    court, "I will continue to litigate these frivolous claims unless
    the defendants surrender any argument that my litigation of the
    - 22 -
    claims to date has been frivolous."           Cf. Fid. Guar. Mortg. Corp.
    v. Reben, 
    809 F.2d 931
    , 937 (1st Cir. 1987) (plaintiff's "decision
    to terminate an ill conceived and wrongly prosecuted law suit
    cannot serve to limit the consequences of a course of action [she]
    initiated and persistently followed").          The district court did not
    abuse its discretion in finding that Fontanillas's conspicuously
    conditional offer to discontinue litigation of claims it found to
    be "frivolous, unreasonable, or groundless" was tantamount to
    "continu[ing] to litigate" those claims.           Christiansburg Garment
    Co., 
    434 U.S. at 422
    .
    Having    thus      failed   to    demonstrate     any     abuse   of
    discretion, Fontanillas mounts an alternative attack on the fees
    award, arguing that at least a portion of the award in MBCD's favor
    is barred as a matter of law by the Supreme Court's decision in
    Kay v. Ehrler, 
    499 U.S. 432
     (1991), which held that pro se
    litigants, including attorneys who represent themselves, cannot
    seek attorneys' fees under the Civil Rights Attorney's Fees Awards
    Act of 1976, see 
    id.
     at 437–38.        Because one of the two attorneys
    representing MBCD in this litigation, Rosangela Sanfilippo-Resumil
    ("Sanfilippo"),    was   "a    salaried     associate   of   .   .   .   MBCD,"
    - 23 -
    Fontanillas    argues,   "MBCD   was   representing    itself"   through
    Sanfilippo and so has no claim to compensation for her work.8
    This argument fails.      Sanfilippo was not among the
    individual    named   MBCD   defendants,   and   as   for   Fontanillas's
    argument that Sanfilippo's status as an MBCD employee rendered
    MBCD a pro se litigant in this case, Kay itself provides that "an
    organization is not comparable to a pro se [individual] litigant
    because the organization is always represented by counsel, whether
    in-house or pro bono, and thus, there is always an attorney-client
    relationship."     
    Id.
     at 436 n.7.     Accordingly, every circuit we
    know to have considered the issue has determined that Kay does not
    prohibit the award of fees to an attorney who represents his or
    her own law firm. See Treasurer, Trs. of Drury Indus., Inc. Health
    Care Plan & Tr. v. Goding, 
    692 F.3d 888
    , 897–98 (8th Cir. 2012)
    (fees under the Employee Retirement Income Security Act); Baker &
    Hostetler LLP v. U.S. Dep't of Commerce, 
    473 F.3d 312
    , 315 (D.C.
    Cir. 2006) (fees under the Freedom of Information Act); Bond v.
    Blum, 
    317 F.3d 385
    , 398–400 (4th Cir. 2003) (fees under the
    Copyright Act), abrogated on other grounds by Kirtsaeng v. John
    Wiley & Sons, Inc., 
    136 S. Ct. 1979
    , 1983 (2016); cf. also Gold,
    Weems, Bruser, Sues & Rundell v. Metal Sales Mfg. Corp., 
    236 F.3d 8
     Of the $53,662.50 in attorneys' fees awarded to the
    defendants, $49,500.00 was attributable to Sanfilippo's work.
    Fontanillas II, 59 F. Supp. 3d at 427.
    - 24 -
    214, 218–19 (5th Cir. 2000) (relying on Kay to find that a law
    firm litigant may collect attorneys' fees for its employees' work
    under a Louisiana state statute).            We agree with our sister
    circuits'   straightforward   reading   of    Kay   and   see   no   reason,
    moreover, not to apply Kay's generally applicable reasoning in the
    Title VII context.   We therefore hold that MBCD was not prohibited
    as a matter of law from seeking attorneys' fees for the work
    Sanfilippo contributed to this litigation.
    Having considered and rejected all of Fontanillas's
    arguments to the contrary, we hold that the district court acted
    within its discretion in awarding attorneys' fees to the prevailing
    defendants.9   And in light of that determination, we further hold
    that the district court acted within its discretion in declining
    to overturn that fees award in response to Fontanillas's Rule 59(e)
    motion for consideration.     Despite our ruling here, however, we
    sound a reminder that "decisions to grant defendants their fees"
    9 Aside from her categorical challenge to the portion of the
    fees award corresponding to Sanfilippo's work--a challenge we have
    now rejected--Fontanillas does not appear to challenge the
    district court's calculation of the amount owed. She does vaguely
    insinuate that Sanfilippo "never billed the firm nor was paid by
    them" and that the fees award therefore does not accurately
    represent the defendants' legal expenses.      Beyond the patent
    incredibility of Fontanillas's unsupported suggestion that
    Sanfilippo was not being compensated for her work on behalf of
    MBCD, Fontanillas offers no developed argument as to why the
    district court erred in coming to the opposite conclusion. She
    has therefore waived any argument to that effect.      See United
    States v. Zannino, 
    895 F.2d 1
    , 17 (1st Cir. 1990).
    - 25 -
    in the Title VII context "are, and should be, rare."    Tang v. State
    of R.I., Dep't of Elderly Affairs, 
    163 F.3d 7
    , 13 (1st Cir. 1998).
    While "one relevant factor" in determining whether a prevailing
    defendant is entitled to attorneys' fees is whether the plaintiff
    has managed to put forward a prima facie case of discrimination,
    Foster v. Mydas Assocs., Inc., 
    943 F.2d 139
    , 144 (1st Cir. 1991),
    the mere fact that a plaintiff fails to do so on summary judgment
    does not imply that the plaintiff's decision to continue litigation
    up to the summary judgment stage has been "frivolous, unreasonable,
    or groundless," Christiansburg Garment Co., 
    434 U.S. at 422
    .
    Indeed, this court on occasion reverses grants of summary judgment
    to defendants in discrimination cases.         See, e.g., Burns v.
    Johnson, No. 15-1982, 
    2016 WL 3675157
    , at *1 (1st Cir. July 11,
    2016); Reyes-Orta v. P.R. Highway & Transp. Auth., 
    811 F.3d 67
    , 70
    (1st Cir. 2016); Soto-Feliciano v. Villa Cofresí Hotels, Inc., 
    779 F.3d 19
    , 22 (1st Cir. 2015); García-González v. Puig-Morales, 
    761 F.3d 81
    , 84 (1st Cir. 2014); Acevedo-Parrilla v. Novartis Ex-Lax,
    Inc., 
    696 F.3d 128
    , 131 (1st Cir. 2012).     In this particular case,
    the district court expressly acknowledged the need for "[g]reat
    caution" in making awards of this type.       Fontanillas II, 59 F.
    Supp. 3d at 423 (alteration in original) (quoting Lamboy-Ortiz,
    
    630 F.3d at 241
    ).    And, as we have noted, Fontanillas does not
    offer   any   substantive   challenge   to   the   district   court's
    determination that her deposition testimony revealed her claims to
    - 26 -
    be frivolous.   We can therefore affirm the award as within the
    district court's discretion without in any way implying that the
    standard for making such awards is at all loosened.
    C.   Denial of Relief from Summary Judgment
    Finally, Fontanillas contends that the district court
    erred in declining to grant her Rule 60(b) motion for relief from
    the summary judgment order issued in the defendants' favor.10   This
    claim, argued in cursory fashion, is meritless.    "[R]elief under
    Rule 60(b) is extraordinary in nature and . . . motions invoking
    that rule should be granted sparingly."        Rivera-Velázquez v.
    Hartford Steam Boiler Inspection & Ins. Co., 
    750 F.3d 1
    , 3 (1st
    Cir. 2014) (quoting Karak v. Bursaw Oil Corp., 
    288 F.3d 15
    , 19
    (1st Cir. 2002)).   Moreover, we review a district court's decision
    10
    The district court ruled on Fontanillas's Rule 60(b) motion
    after she had already filed a notice of appeal in this court.
    Typically, "[t]he filing of a notice of appeal is an event of
    jurisdictional significance--it confers jurisdiction on the court
    of appeals and divests the district court of its control over those
    aspects of the case involved in the appeal." Griggs v. Provident
    Consumer Disc. Co., 
    459 U.S. 56
    , 58 (1982) (per curiam). Under
    the Federal Rules of Appellate Procedure, however, a notice of
    appeal filed while a Rule 60(b) motion is outstanding in the
    district court "becomes effective" only once that motion is
    resolved. Fed. R. App. P. 4(a)(4)(B)(i); see also Fed. R. App. P.
    4(a)(4) advisory committee's note to 1993 amendment ("A notice [of
    appeal] filed . . . after the filing of a motion [such as a Rule
    60(b) motion] but before disposition of the motion is, in effect,
    suspended until the motion is disposed of . . . ."). The district
    court therefore acted within its jurisdiction in denying
    Fontanillas's Rule 60(b) motion and, consequently, we have
    jurisdiction over Fontanillas's properly noticed, see Fed. R. App.
    P. 4(a)(4)(B)(ii), appeal of that denial.
    - 27 -
    to   grant   or   withhold    such     exceptional   relief    for     abuse   of
    discretion, see id. at 4, "revers[ing] only if it plainly appears
    that the court below committed a meaningful error of judgment,"
    West v. Bell Helicopter Textron, Inc., 
    803 F.3d 56
    , 66 (1st Cir.
    2015) (quoting Anderson v. Cryovac, Inc., 
    862 F.2d 910
    , 923 (1st
    Cir. 1988)).
    Rule 60(b) allows a court to "relieve a party . . . from
    a final judgment, order, or proceeding" for a number of specified
    reasons.      Fed.    R.   Civ.   P.   60(b).    Among   those      reasons    are
    "fraud . . . , misrepresentation, or misconduct by an opposing
    party," id. 60(b)(3), and "mistake," id. 60(b)(1).                   Fontanillas
    argues that such circumstances arose in her case.                The district
    court disagreed, see Fontanillas III, 136 F. Supp. 3d at 157–60,
    and we see no error, meaningful or otherwise, in its judgment.
    As for fraud, misrepresentation, or misconduct under
    Rule 60(b)(3), Fontanillas pointed below to a number of supposedly
    bad-faith factual denials and supposedly perjured statements made
    by the defendants during the course of litigation.                  The district
    court found that, even if Fontanillas had successfully adduced the
    requisite     clear    and   convincing     evidence     of   her     opponents'
    misconduct, see Anderson, 
    862 F.2d at 926
    , she had not shown how
    any such misconduct had substantially inhibited her from "fully
    and fairly preparing her case," Fontanillas III, 136 F. Supp. 3d
    at 158; see also Karak, 
    288 F.3d at
    21–22 ("When a party is capable
    - 28 -
    of   fully       and    fairly    preparing     and    presenting     his      case
    notwithstanding the adverse party's arguable misconduct, the trial
    court is free to deny relief under Rule 60(b)(3).").                She makes no
    effort at such a showing on appeal, and so she has waived the
    opportunity to do so.            See Karak, 
    288 F.3d at 21
     (burden is on
    movant     to    demonstrate     that   alleged   misconduct      substantially
    interfered with the movant's ability to prepare the case).11
    As for mistake under Rule 60(b)(1), Fontanillas pointed
    to a laundry list of alleged errors the district court made in its
    admission       and    consideration    of   certain   evidence     and   in   its
    application of certain legal principles.12               The district court,
    however,        understood   Fontanillas      simply    to   be    "rehash[ing]
    11Fontanillas also briefly suggests that relief is warranted
    under Rule 60(d)(3), which permits a court to "set aside a judgment
    for fraud on the court." Fed. R. Civ. P. 60(d)(3). Assuming that
    Fontanillas has not waived this claim for lack of development, she
    has failed to make any demonstration that Rule 60(d)(3)'s
    requirement of "an unconscionable scheme or the most egregious
    conduct designed to corrupt the judicial process" has been
    satisfied here. Irving v. Town of Camden, No. 12-1850, 
    2013 WL 7137518
    , at *1 (1st Cir. Apr. 17, 2013) (quoting Roger Edwards,
    LLC v. Fiddes & Son Ltd., 
    427 F.3d 129
    , 133 (1st Cir. 2005)).
    12Before the district court, Fontanillas suggested that her
    claims of judicial mistake also provided grounds for relief under
    Rule 60(d)(1), which permits a court to "entertain an independent
    action to relieve a party from a judgment, order, or proceeding."
    Fed. R. Civ. P. 60(d)(1). She does not cite this provision on
    appeal, and it would be unavailing in any event, as she has not
    sufficiently argued the sort of "grave miscarriage of justice"
    that would justify a Rule 60(d) action. LinkCo, Inc. v. Naoyuki
    Akikusa, 
    367 F. App'x 180
    , 182 (2d Cir. 2010) (unpublished opinion)
    (quoting United States v. Beggerly, 
    524 U.S. 38
    , 47 (1998)).
    - 29 -
    arguments from her opposition to the motion for summary judgment,
    and alternatively, advanc[ing] theories that could have been set
    forth     for   the   court's   consideration   a[t]   that   procedural
    juncture."      Fontanillas III, 136 F. Supp. 3d at 159.      While that
    observation alone provided valid grounds for the district court to
    deny extraordinary relief under Rule 60(b), we further observe
    that this circuit does not understand Rule 60(b)(1)'s reference to
    "mistake" to include a district court's mistaken ruling on a point
    of law.    See Hoult v. Hoult, 
    57 F.3d 1
    , 5 (1st Cir. 1995); Silk v.
    Sandoval, 
    435 F.2d 1266
    , 1268 (1st Cir. 1971) (rejecting an
    interpretation of Rule 60(b)(1) that would cause it to overlap
    with a movant's ability to correct legal error through a Rule 59(e)
    motion for reconsideration).
    Finding no merit in any of Fontanillas's underdeveloped
    claims under Rule 60,13 we affirm the district court's rejection
    of those claims.
    III.   Conclusion
    Finding that Fontanillas has failed to show that the
    district court abused its discretion in holding her to the local
    rules' ordinary page limits, in awarding attorneys' fees to the
    prevailing defendants, or in rejecting her motions to set aside
    13 Fontanillas      makes no argument that the district court
    improperly rejected      her additional request for relief under the
    catch-all provision     of Rule 60(b)(6), see Fontanillas III, 136 F.
    Supp. 3d at 159–60,     so we deem that request abandoned.
    - 30 -
    the summary judgment order and the fees award, we affirm.   Costs
    to defendants.
    - 31 -