Mouliert-Vidal v. Flores-Galarza

Not For Publication in West's Federal Reporter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.
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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.
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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.
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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
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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
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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
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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
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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.
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