Instituto De Educacion Universal Corp. v. Great Lakes Higher Education Guaranty Corp. , 126 F. App'x 1 ( 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Not for Publication in West's Federal Reporter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. 02-1744
INSTITUTO DE EDUCACION UNIVERSAL CORP. AND
ANGEL RUIZ-RIVERA,
Plaintiffs, Appellants,
v.
GREAT LAKES HIGHER EDUCATION GUARANTY CORPORATION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Santiago R. Palmer on brief for appellee Instituto de
Educacion Universal, Inc.
Angel Ruiz Rivera on brief pro se.
Pedro R. Pierluisi and O'Neill & Borges on brief for appellee
Student Loan Marketing Association.
Jose G. Fagot Diaz on brief for appellee Great Lakes Higher
Education Guaranty Corporation.
March 3, 2005
Per Curiam. Appellants Instituto de Educacion
Universal Corp. (IEU) and Angel Ruiz-Rivera appeal from the
decisions of the district court (1) granting the motion for
summary judgment filed by Great Lakes Higher Education Guaranty
Corp. (Great Lakes) and (2) granting the motion to dismiss
filed by the Student Loan Marketing Association (Sallie Mae).
After carefully reviewing the parties' briefs and the record,
we affirm the judgments of the district court for essentially
the reasons stated in that court's Opinion and Order, dated
August 28, 2001 (docket # 99), and the Opinion and Order, dated
September 28, 2001 (docket # 108). We add only the following
comments.
1. Ruiz-Rivera. In regard to Ruiz-Rivera, he failed
to file an opposition to Sallie Mae's motion to dismiss, and he
ignored the district court's order to show cause concerning
this default. The district court therefore dismissed Ruiz-
Rivera's claims against Sallie Mae and denied Ruiz-Rivera's
motion for reconsideration. Given that the court had warned
Ruiz-Rivera that dismissal was a possible sanction, we can see
no abuse of discretion here. See HMG Property Investors, Inc.
v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 918 (1st Cir.
1988) ("the law is well established in this circuit that where
a noncompliant litigant has manifested a disregard for orders
of the court and been suitably forewarned of the consequences
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of continued intransigence, a trial judge need not first
exhaust milder sanctions before resorting to dismissal").
Ruiz-Rivera similarly neglected to file an opposition
to the motion of Great Lakes for summary judgment. He also has
failed to offer any arguments in his opening brief on appeal
concerning why summary judgment against him should not have
been granted. Ruiz-Rivera therefore has forfeited his claims
against Great Lakes. See Andresen v. Diorio, 349 F.3d 8, 13
(1st Cir. 2003) (arguments presented for the first time in a
party's reply brief have been forfeited).
2. IEU. IEU has decided to forego any appellate
argument concerning the district court's determination that
Sallie Mae's stop payment order was not a defamatory
communication regarding IEU's eligibility to participate in the
student loan programs. As a result, we will not consider the
defamation issue. This leaves IEU's negligence and contract
claims.
As for the negligence claim, the only reference to
Sallie Mae in IEU's amended complaint is that Sallie Mae had
acted in concert with Great Lakes to place the stop payment
orders and that Sallie Mae therefore was responsible for the
resulting damages. In regard to the contract claim, the
amended complaint does not refer to the existence of any
contract to which Sallie Mae was a party, and the opposition to
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the motion to dismiss stated only that Sallie Mae was liable
for breach of contract.
Based on the foregoing, it is plain that IEU simply
has failed to point to any "well-pleaded factual allegations"
-- other than the existence of the stop payment orders
themselves -- in support of the argument that Sallie Mae's
actions in this regard were negligent or in breach of any
contract. Citibank v. Grupo Cupey, Inc., 382 F.3d 29, 31 (1st
Cir. 2004) (in reviewing a district court's grant of a motion
to dismiss, this court need only "accept as true the
well-pleaded factual allegations of the complaint"). Rather,
IEU has only put forth "bald assertions [and] unsupportable
conclusions" concerning Sallie Mae's liability. See In re
Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir.
2003) ("[w]e are not bound . . . to credit bald assertions,
unsupportable conclusions, and opprobrious epithets woven into
the fabric of the complaint") (internal quotation marks and
citation omitted). The district court therefore did not err in
dismissing IEU's claims against Sallie Mae.
This leaves IEU's claims against Great Lakes. As
with Sallie Mae, IEU states, on appeal, that it will not
address its defamation claim against Great Lakes. Thus, there
are no arguments concerning this claim in IEU's opening brief.
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The issue, then, has been forfeited. See Andresen, 349 F.3d at
13.
IEU also has forfeited its contract claim against
Great Lakes by failing to raise the claim in its opposition to
the summary judgment motion. See Landrau-Romero v. Banco
Popular de Puerto Rico, 212 F.3d 607, 612 (1st Cir. 2000)
(where appellant failed to raise an argument in his opposition
to the appellee's motion for summary judgment, the issue has
been waived). In any event, IEU does not make any developed
arguments in its opening brief in regard to the contract claim.
Indeed, aside from a quote from a case concerning the general
obligations of contracting parties, IEU states only (1) that
the relationship between Sallie Mae and Great Lakes is
contractual and (2) that Great Lakes has a contract with DOE.
As we have held, "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
IEU's arguments regarding its negligence claim
against Great Lakes, while more developed, nonetheless fail to
persuade us that summary judgment was in error. IEU first
contends that, although the Department of Education (DOE) had
faxed to Great Lakes a memorandum, dated February 19, 1997,
stating that IEU was ineligible to participate in the federal
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student loan programs, Great Lakes's reliance on this
memorandum was negligent. In particular, IEU contends that
Great Lakes should have known, from the cover sheet to the fax,
that since IEU was appealing the administrative law judge's
(ALJ) decision so finding, IEU remained an eligible institution
pending this appeal. Second, IEU contends that Great Lakes
negligently ignored the information, provided to it by IEU's
Director of Financial Aid, Ms. Gloria M. Oyola, that, despite
the ALJ's decision, IEU still was eligible.
The actual facts, as presented by IEU, do not support
either of these arguments. First, Ms. Oyola, in her affidavit,
does not state that, after February 19, 1997, she informed
Great Lakes that IEU remained eligible to participate in the
student loan program. Rather, Ms. Oyola avers that she told
Great Lakes that IEU was still operating its college division.
Affidavit, ¶ 12. Given that Great Lakes already had received
the February 19, 1997 memorandum from DOE stating that IEU was
ineligible, Ms. Oyola's statement did not necessarily negate
anything in the memorandum. That is, the college division may
still have been functioning, even though IEU's ability to
accept students with federal loans had been terminated.
Similarly, the fax cover sheet to DOE's February 19,
1997 memorandum does not indicate, as IEU represents, that the
ALJ's decision was, in fact, being appealed. Rather, the cover
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sheet, which is a transmittal form, just stated that the
parties were planning to appeal. Significantly, the form did
not state that IEU had appealed, and IEU does not aver that it
ever informed Great Lakes when the appeal actually was filed.
Given this, and given the unequivocal declaration in the
February 19, 1997 memorandum that DOE had terminated IEU's
student loan eligibility, Great Lakes was entitled to summary
judgment on IEU's negligence claim.
Summarily Affirmed. See Local Rule 27(c).
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