Mouliert-Vidal v. Flores-Galarza ( 2006 )


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  •                    Not For Publication in West's Federal Reporter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. 04-1665
    BENJAMÍN MOULIERT-VIDAL, et al.,
    Plaintiffs, Appellants,
    v.
    JUAN ANTONIO FLORES-GALARZA & ROSALIA NIEVES,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Salvador E. Casellas, U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Lipez, Circuit Judge,
    and Schwarzer,* Senior District Judge.
    Francisco R. González for appellants.
    Luis Sánchez Betances, with whom Sánchez-Betances & Sifre,
    P.S.C. was on brief, for appellees.
    January 12, 2006
    _________________
    *
    Of the Northern District of California, sitting by designation.
    LIPEZ, Circuit Judge.        The plaintiffs, twenty-four named
    employees of the Puerto Rico Department of the Treasury (PRDT) and
    an organization claiming to represent them, brought suit in the
    district court, alleging that they had been discriminated against
    at work because of their political views.            After lengthy discovery
    and several extensions of time, the district court entered summary
    judgment   for   the     defendants    on    a   motion   that   it   considered
    unopposed. The plaintiffs argue on appeal that they were denied an
    opportunity to depose a third-party witness wrongfully and that the
    district court should have allowed them more time to prepare and
    file an opposition to summary judgment.2            We affirm.
    I.
    A member of the New Progressive Party (NPP) occupied the
    Puerto Rico governorship from 1993 to 2001.               In 2001, a Popular
    Democratic Party (PDP) member became governor. The plaintiffs, who
    are members of or otherwise favor the NPP, filed suit in January
    2002. Their claims, though not entirely uniform, consisted largely
    of allegations that they had been stripped of job functions,
    bonuses, and perquisites after the 2000 election, in favor of
    employees sympathetic to the PDP.
    In their complaint, the plaintiffs promised a class
    action   that    would    involve     300    similarly-situated       employees.
    1
    The organization does not appeal the judgment against it.
    Nor do four of the individual plaintiffs.
    -2-
    However, the plaintiffs never sought class certification and never
    produced the additional 276 aggrieved individuals.      Similarly, the
    named plaintiffs included an organization called "Asociación de
    Empleados del Departamento de Hacienda por la Democracia."           The
    plaintiffs   never   produced    any    evidence   pertaining   to   the
    organization, and the district court ultimately remarked that it
    was "not even positive that [the organization] exists."
    Discovery was supervised largely by a magistrate judge.
    The materials produced were massive, supporting a summary judgment
    record 3500 pages long.3        The defendants arranged for several
    political officials to be produced for depositions.       Nonetheless,
    the plaintiffs were unable to schedule the deposition of a witness
    named María del Carmen Betancourt-Vázquez, Assistant Secretary for
    the Human Resources Area at PRDT.
    The defendants had notified the plaintiffs early in the
    discovery process that Betancourt-Vázquez had refused to be deposed
    unless subpoenaed, and the plaintiffs apparently attempted to
    subpoena her for a deposition several times.       The parties dispute
    exactly what happened.   According to the plaintiffs, Betancourt-
    Vázquez avoided attempts to subpoena her, going so far as to hide
    from a process server.     But the plaintiffs did manage to serve
    Betancourt-Vázquez with a subpoena two weeks after the discovery
    2
    If the plaintiffs' late filed oppositions to summary judgment
    are included in the count, the record swells past 6500 pages.
    -3-
    period had concluded, shortly before the defendants' motion for
    summary judgment was to be filed. The magistrate judge granted the
    defendants' motion to quash that subpoena as untimely.
    The defendants moved for summary judgment on May 12,
    2003.       The roughly 3000 pages of evidence that the defendants
    arrayed      in   support   of   their    motion      included   an   eleven-page
    declaration       by   Betancourt-Vázquez.         Her   declaration   consisted
    mostly of a summary of the personnel records of the plaintiffs,
    which tended to show that none of them had suffered termination or
    reduction in status since the election.
    The plaintiffs argued that without deposing Betancourt-
    Vázquez they could not adequately oppose the motion for summary
    judgment.         They have maintained this position adamantly.              The
    plaintiffs moved pursuant to Fed. R. Civ. P. 56(f) to arrange a
    deposition of Betancourt-Vázquez.               The defendants objected.      The
    district      court     suggested   that        the   parties    "amicably   and
    professionally resolve" their dispute "and promptly schedule the
    deposition of" Betancourt-Vázquez.              Nonetheless, the disagreement
    between the parties persisted, and the district court referred the
    matter to the magistrate judge.                The magistrate judge concluded
    that no further discovery was warranted.4
    3
    We reject the plaintiffs' assertion that the magistrate judge
    somehow lacked authority to resolve the matter as he did.
    -4-
    Now angry about their continuing inability to depose
    Betancourt-Vázquez, the plaintiffs asked the district court to
    reverse the magistrate judge's decision and to allow an additional
    120 days to oppose summary judgment.    The district court refused
    both requests. Nearly a full month later, the plaintiffs attempted
    to appeal the district court's order.     We denied permission to
    bring the appeal.
    Perhaps distracted by the Betancourt-Vázquez discovery
    dispute, the plaintiffs failed to file a timely opposition to the
    defendants' summary judgment motion despite a series of extensions
    running roughly four months beyond the deadline provided by the
    local rules.   Time actually ran out on the plaintiffs twice.
    Acting on the plaintiffs' request, the district court had allowed
    the plaintiffs nearly 60 days to oppose summary judgment.     (The
    local rules provided a fifteen-day deadline.) The magistrate judge
    refused the plaintiffs' request to extend the deadline further.
    But in July, after the 60-day deadline passed without word from the
    plaintiffs, the defendants, in an apparent effort to establish a
    firm final deadline for the plaintiffs' response, essentially
    requested a second extension on the plaintiffs' behalf.5       The
    district court then granted the plaintiffs an additional 45 days,
    until the end of August, to oppose summary judgment.
    4
    The district court later noted this oddity in rejecting the
    plaintiffs' contention in their motion for reconsideration that
    they had filed timely requests for extensions of time.
    -5-
    When the August deadline neared, the plaintiffs requested
    an additional 40 days from the magistrate judge,6 who granted the
    request, but limited the extension to twenty days and warned that
    no further extensions would be allowed.           After the twenty days
    expired, the plaintiffs notified the court that they would need
    still more time "to begin filing" their opposition. The plaintiffs
    ultimately submitted what the district court termed a "piecemeal
    opposition"   to   summary    judgment;    it   arrived   in    installments
    commencing two weeks after the final deadline for submission and
    continuing for two and a half months thereafter.
    Citing    the      plaintiffs'   untimeliness        and   "blatant
    disregard to the Court's case management orders,"7 the district
    court decided to consider the defendants' opposition to summary
    judgment as unopposed. Still, as required by Rule 56, the district
    court reviewed each of the plaintiffs' claims, assessing separately
    how the evidence already in the summary judgment record related to
    each individual plaintiff.        See Fed. R. Civ. P. 56(e) ("If the
    5
    Accompanying the motion was the plaintiffs' representation
    that they had been told by one of the defendants' lawyers that "he
    was resigning the case because the defendants wanted to hide
    information." The plaintiffs repeated the same allegation at oral
    argument before us. However, as the record reveals, the lawyer in
    question submitted a sworn declaration, in response to the
    plaintiffs' allegations, denying any such statement.
    6
    In addition to twice missing the deadline to oppose summary
    judgment, the plaintiffs previously had been asked to show cause
    why they should not be sanctioned for failing to appear at a
    scheduled conference with the magistrate judge.
    -6-
    adverse     party     does    not   so      respond,    summary      judgment,   if
    appropriate,    shall        be   entered    against     the   adverse      party.")
    (emphasis added); Adickes v. S.H. Kress & Co., 
    398 U.S. 144
    , 159-60
    (1970).     The court concluded that the plaintiffs had produced
    little more than "bare, boilerplate and conclusory allegations
    unsupported by any specific facts," and that their case fell short
    on a number of grounds.             The court focused its analysis on a
    threshold point:       because the plaintiffs were maintained in "their
    official designated post[s]," kept the "same level and salary," and
    suffered "no changes in rank," the plaintiffs had failed to produce
    evidence that they had "suffered a 'constitutionally significant
    burden' capable of giving rise to relief."                     Mouliert Vidal v.
    Flores Galarza, Civil No. 02-1101 at 7, 23 (D.P.R. 2004) (quoting
    Agosto-de-Feliciano v. Aponte-Roque, 
    889 F.2d 1209
    , 1216-18 (1st
    Cir. 1989)).    The plaintiffs' efforts to seek relief from judgment
    were unsuccessful, and this appeal followed.
    II.
    The plaintiffs appear to raise four issues on appeal:
    whether the district court could permissibly deny their Rule 56(f)
    motion to depose Betancourt-Vázquez; whether the district court
    could     disregard    their      late-arriving        oppositions     to    summary
    judgment; whether the district court should have granted relief
    pursuant to Fed. R. Civ. P. 60(b)(3) on account of the defendants'
    unwillingness or inability to produce Betancourt-Vázquez for a
    -7-
    deposition; and, assuming that the summary judgment motion should
    not have been considered unopposed and that the district court
    should have considered the late submissions in opposition to
    summary    judgment,    whether    the    defendants'       motion   for   summary
    judgment was granted properly.                Because we disagree with the
    plaintiffs on the first, second, and third issues, we need not
    decide the fourth.
    A.   The Rule 56(f) Motion
    Our review of a denial of a Rule 56(f) motion recognizes
    the "broad . . . considerable discretion" of the district court
    over such matters.       Ayala-Gerena v. Bristol Myers-Squibb Co., 
    95 F.3d 86
    , 91 (1st Cir. 1996).             We reverse denials of Rule 56(f)
    motions "only upon a clear showing of manifest injustice, that is,
    where the lower court's discovery order was plainly wrong and
    resulted    in     substantial    prejudice      to   the    aggrieved     party."
    Filiatrault v. Comverse Tech. Inc., 
    275 F.3d 131
    , 137-38 (1st Cir.
    2001).    The plaintiffs have made no such showing.
    Rule     56(f)   allows,     in    certain      circumstances,     for
    supplemental discovery after a motion for summary judgment has been
    filed.     But, while "district courts should construe Rule 56(f)
    motions generously," discovery pursuant to Rule 56(f) is not
    granted as a matter of course.         Ayala-Gerena, 
    95 F.3d at 92
    .          As we
    have explained:
    To benefit from the protections of Rule 56(f),
    a litigant ordinarily must furnish the nisi
    -8-
    prius court with a timely statement -- if not
    by affidavit, then in some other authoritative
    manner -- that (i) explains his or her current
    inability to adduce the facts essential to
    filing   an  opposition,    (ii)  provides   a
    plausible basis for believing that the sought-
    after facts can be assembled within a
    reasonable time, and (iii) indicates how those
    facts would influence the outcome of the
    pending summary judgment motion.
    Velez v. Awning Windows, Inc., 
    375 F.3d 35
    , 40 (1st Cir 2004).   In
    addition, the party must "set forth good cause to explain the
    movant's failure to have conducted the desired discovery at an
    earlier date."   Massachusetts School of Law at Andover, Inc. v.
    American Bar Ass'n, 
    142 F.3d 26
    , 44 (1st Cir. 1998).
    Even upon submission of the required materials, the
    district court is entitled to refuse a Rule 56(f) motion if it
    concludes that the party opposing summary judgment is unlikely to
    garner useful evidence from supplemental discovery, especially when
    the discovery requested would further delay a long-pending case.
    See FDIC v. Kooyomjian, 
    220 F.3d 10
    , 15 (1st Cir. 2000); Greebel v.
    FTP Software, Inc., 
    194 F.3d 185
    , 202 n.15 (1st Cir. 1999); see
    also Fennell v. First Step Designs, Ltd., 
    83 F.3d 526
    , 532 (1st
    Cir. 1996) (holding that district court could balance potential
    benefits of Rule 56(f) discovery against the "costs, burdens, and
    delays that the proposed discovery entailed").      Similarly, the
    district court may refuse to authorize Rule 56(f) discovery if the
    information sought will not be pertinent to the theory of law
    -9-
    advanced by the summary judgment motion.      Massachusetts School of
    Law at Andover, Inc., 
    142 F.3d at 44-45
    .
    While the plaintiffs' several motions on the subject
    insist otherwise, the plaintiffs have not demonstrated why they
    needed to delay the proceedings in order to depose Betancourt-
    Vázquez. Betancourt-Vázquez's declaration comprises a tiny portion
    of the summary judgment record and says almost nothing that the
    plaintiffs could not have controverted without further discovery.
    Mostly, Betancourt-Vázquez summarized the plaintiffs' personnel
    files.   The plaintiffs already had access to these files.            In
    short, the plaintiffs failed to show that anything discovered by
    virtue   of   a   deposition   of   Betancourt-Vázquez   "would   [have]
    influence[d] the outcome of the pending summary judgment motion."
    Velez, 
    375 F.3d at 40
    .         Consequently, we cannot say that the
    district court abused its discretion in denying the plaintiffs'
    request for Rule 56(f) relief.
    B.   Treating the Summary Judgment Motion as Unopposed
    Our review of the district court's reaction to the
    plaintiffs' untimeliness is, again, limited.       We have recognized
    that the district court has wide discretion to manage its caseload
    by setting deadlines for filings and holding parties to those
    deadlines.    "In the absence of a manifest abuse of discretion, . .
    . we will not interfere with a district court's reasoned refusal to
    grant incremental enlargements of time."      Mendez v. Banco Popular
    -10-
    de P.R., 
    900 F.2d 4
    , 7 (1st Cir 1990).         When a party fails to meet
    a reasonable deadline for opposing a motion for summary judgment,
    the   district   court   may   treat   the   summary   judgment   motion   as
    unopposed, and deem admitted all facts presented as uncontested by
    the movant.      "This court has held repeatedly that the district
    court in Puerto Rico is justified in holding one party's submitted
    uncontested facts to be admitted when the other party fails to file
    oppositions in compliance with the local rules."          Torres-Rosado v.
    Rotger-Sabat, 
    335 F.3d 1
    , 4 (1st Cir. 2003).
    The plaintiffs received extensions running nearly four
    months.   They failed twice, as the district court pointed out, to
    file for an extension of time before the deadline to oppose summary
    judgment passed. Further, the plaintiffs' opposition dribbled into
    court over the course of two and a half months, not arriving in
    complete form until a full three months after the court's final
    deadline -- seven months after the defendants' motion for summary
    judgment was filed.       This record supports the district court's
    conclusion that the plaintiffs' disregard for the court's deadlines
    was "blatant" and inexcusable. See Cordero-Soto v. Island Finance,
    Inc., 
    418 F.3d 114
    , 118 (1st Cir. 2005) (holding no abuse of
    discretion in district court's denial of request for extension of
    time and treatment of summary judgment motion as unopposed, after
    party's repeated failure to comply with deadlines).
    -11-
    We are not swayed by the plaintiffs' suggestion that they
    should have been allowed extra time to oppose summary judgment
    because they were occupied by the Rule 56(f) matter.               Once their
    motion to depose Betancourt-Vázquez was denied, the plaintiffs
    should have gotten back to the task at hand.         Instead, they wasted
    time on an ill-conceived attempt to file an interlocutory appeal.
    As   we   quickly   informed   the   plaintiffs,   they   should    not   have
    expected to secure an interlocutory appeal of the district court's
    discretionary ruling on a discovery matter.           See, e.g.,       United
    States v. Kouri-Perez, 
    187 F.3d 1
    , 13 (1st Cir. 1999) (explaining
    reluctance of court of appeals to entertain interlocutory appeals
    from discretionary rulings of district court that can be challenged
    on direct appeal).     The district court was not required to save the
    plaintiffs from the consequences of their futile efforts.
    C.   Rule 60(b)(3)
    The plaintiffs also appear to seek appellate review of
    the denial of relief pursuant to Rule 60(b)(3), which allows "[o]n
    motion" for the district court to "relieve a party . . . from a
    final judgment" on account of "fraud . . . , misrepresentation, or
    other misconduct of an adverse party."         The plaintiffs' contention
    is that such relief should have been granted because of the
    defendants'    unwillingness    to   produce   Betancourt-Vázquez      for   a
    deposition, which they allege constituted misconduct by an adverse
    party.    We certainly do not condone any effort by the defendants to
    -12-
    somehow hide Betancourt-Vázquez, if any such conduct actually
    occurred.    But we reject the plaintiffs' request for appellate
    review of any Rule 60(b)(3) claim because they do not suggest how
    they have preserved an appeal on Rule 60(b)(3) grounds.
    The plaintiffs noticed an appeal both of the final
    judgment and of the denial of their "motion for reconsideration."
    Neither appeal encompasses Rule 60(b)(3) relief.   The plaintiffs'
    "motion for reconsideration" never argued in any understandable
    fashion for Rule 60(b)(3) relief. Rather, the plaintiffs asked the
    district court to relieve them from the judgment on account of
    "excusable neglect," pursuant to Rule 60(b)(1).    Having failed to
    include any direct request for Rule 60(b)(3) relief in their motion
    for reconsideration, the plaintiffs have waived any right to ask
    for such relief on appeal from the denial of that motion.       See
    Larch v. Mansfield Mun. Elec. Dep't, 
    272 F.3d 63
    , 76 (1st Cir.
    2001) (holding that failure to raise issue at district court
    forecloses party from raising same issue on appeal).      See also
    Toscano v. Chandris, S.A., 
    934 F.2d 383
    , 386-87 (1st Cir. 1991);
    Com. of Puerto Rico v. S.S. Zoe Colocotroni, 
    601 F.2d 39
    , 42 (1st
    Cir. 1979) (discussing procedure for seeking Rule 60(b) relief
    while a case is on appeal).
    Nor does the plaintiffs' appeal from the final judgment
    itself allow us to entertain their request for Rule 60(b)(3)
    relief.   Our review of the record reveals that the plaintiffs did
    -13-
    make cursory reference to Rule 60(b)(3) in their motion, several
    months before the entry of final judgment, to stay the proceedings
    while they attempted an interlocutory appeal -- essentially a
    motion for more time to oppose summary judgment. But Rule 60(b)(3)
    relief was not available to the plaintiffs until entry of final
    judgment.    Farr Man & Co. v. M/V Rozita, 
    903 F.2d 871
    , 874 (1st
    Cir. 1990) ("It is, by this time, well settled that Rule 60 applies
    only to final judgments.").
    D. Resolution of the Unopposed Summary Judgment Motion
    The plaintiffs suggest that the district court dismissed
    their case with prejudice as a sanction for their failure to timely
    oppose summary judgment.     The district court did no such thing.
    Rather, the district court entered a twenty-four page opinion and
    order that discussed each of the plaintiffs' claims under the
    appropriate summary judgment standard, limiting the record to the
    evidence on file at the time that the period to oppose summary
    judgment expired.     This is exactly what the district court was
    supposed to do.    Cordero-Soto, 
    418 F.3d at 118
    .
    The plaintiffs have provided no basis for granting them
    relief once we have affirmed the district court's decision to
    disregard their late-filed oppositions to summary judgment.    They
    make no argument that, on the record considered by the district
    court, the defendants' motion for summary judgment should have been
    denied. Notably, they do not contend in their appellate brief that
    -14-
    the district court was incorrect in concluding, on the available
    summary judgment record, that none of the plaintiffs had suffered
    a constitutionally cognizable injury.       Consequently, any such
    argument is waived.   See Michelson v. Digital Financial Services,
    
    167 F.3d 715
    , 721 n.2 (1999).   Therefore, we must conclude that the
    district court properly entered judgment for the defendants.
    Affirmed.
    -15-