Ferreira-Plasencia v. Ruginski ( 2002 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2077
JULIAN FERREIRA-PLASENCIA,
Plaintiff, Appellant,
v.
JOHN H. RUGINSKI, JR.,
CHRIS MARTINEZ,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Julian Ferreira-Plasencia on brief pro se.
James Moretti on brief for appellees.
May 2, 2002
Per Curiam. Julian Ferreira-Plasencia, proceeding
pro se, appeals from the district court’s grant of summary judgment
to defendants John H. Ruginski, Jr. and Chris Martinez in this
diversity-based legal malpractice suit. Below, the plaintiff
claimed that the defendants, his former attorney and the attorney's
legal assistant, failed to file a timely notice of appeal from an
Immigration Judge’s denial of his application for a waiver of
deportability. He further contended that the defendants did not
advise him as to alternative methods to seek relief from
deportation. Subsequent to the dismissal of his untimely appeal,
Ferreira-Plasencia was deported. At some time thereafter, he re-
entered the country, and was later convicted for illegal re-entry,
8 U.S.C. § 1326.
The district court adopted a magistrate judge’s report
and recommendation and granted summary judgment to the defendants
because Ferreira-Plasencia offered no evidence to establish that
the defendants’ failure to file his notice of appeal in a timely
fashion actually caused harm. The court further found that
Ferreira-Plasencia had not provided any expert testimony concerning
the relevant standard of care for his claim that the defendants did
not properly advise him of alternative avenues of relief from
deportation.
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Upon our de novo review, we find that the absence of
evidence to support essential elements of Ferreira-Plasencia’s
claims is fatal to his case. He offered no evidence to establish
that the defendants' untimely filing of his notice of appeal caused
him to be deported and subsequently convicted for illegal re-entry
into the United States. He also failed to present expert testimony
establishing the standard of care owed to him on his claim that
defendants did not properly advise him as to alternative avenues
for relief from deportation. Accordingly, the district court
properly granted summary judgment.
On appeal, Ferreira-Plasencia faults the district court
for not sua sponte granting him a continuance, so he could obtain
the testimony of an expert. He contends that Rule 56(f) of the
Federal Rules of Civil Procedure required the court to either deny
the motion for summary judgment or grant him a continuance. But
he did not seek to invoke Rule 56(f) below, and we have stated that
"in order to savor the balm of Rule 56(f), a party must move for
a discovery continuance in a timely fashion." Mass. Sch. of Law
at Andover, Inc. v. Am. Bar. Ass'n., 142 F.3d 26, 44 (1st Cir.
1998)(internal quotation marks omitted). Not only did Ferreira-
Plasencia fail to make a timely motion for a Rule 56(f)
continuance, but he also failed to make any motion for any sort of
continuance.
-3-
We add, moreover, that a movant must generally show
diligence in conducting discovery. Simas v. First Citizens’ Fed.
Credit Union, 170 F.3d 37, 45 n.4 (1st Cir. 1999). Ferreira-
Plasencia did not state what attempts he had made to obtain
evidence to support his claim. Accordingly, we find no merit in
his argument that the district court erred by not spontaneously
granting him an unrequested continuance.
Ferreira-Plasencia also argues, for the first time on
appeal, that the district court should have given him "fair notice"
of the requirements of Rule 56 of the Federal Rules of Civil
Procedure and the consequences of failing to properly oppose such
a motion. The magistrate judge’s report and recommendation clearly
outlined these requirements, and (assuming, without deciding, that
notice was required) we conclude that Ferreira-Plasencia thus
received "fair notice" of the rule. Furthermore, because he did
not object to the magistrate’s recommendation that summary judgment
be granted to the defendants on the ground that he had no notice
of the requirements of the rule, Ferreira-Plasencia has waived the
argument. See Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d
603 (1st Cir. 1980)(holding that the failure to file timely,
specific objections to a magistrate’s report and recommendation
constitutes waiver of the right to appeal the district court’s
decision).
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The district court’s grant of summary judgment to the
defendants is affirmed.
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