UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2050
ROSSY COYANTE,
Plaintiff - Appellant,
v.
PUERTO RICO PORTS AUTHORITY, ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Coffin and Campbell, Senior Circuit Judges,
and DiClerico, Jr.,* District Judge.
Antonio Jim nez-Miranda for appellant.
Raymond P. Burgos, with whom Pinto-Lugo & Rivera was on
brief for appellee Puerto Rico Ports Authority; Roberto M rquez-
S nchez with whom Law Offices of Benjam n Acosta, Jr. was on
brief for appellee Mangual Maintenance Services, Inc.
January 23, 1997
* Of the District of New Hampshire, sitting by designation.
DICLERICO, Chief District Judge. The plaintiff, Rossy
DICLERICO, Chief District Judge.
Coyante, filed a complaint against the defendants, Puerto Rico
Ports Authority ( Ports Authority ) and Mangual Maintenance
Services, Inc. ( Mangual ), seeking damages she claims to have
suffered as a result of slipping and falling on certain premises
allegedly owned or controlled by the defendants. Following nine
days of testimony at trial, the plaintiff rested and the
defendants moved for judgment as a matter of law under Fed. R.
Civ. P. 50(a) asserting that the plaintiff had produced no
evidence to establish that the defendants owned or controlled the
area where the plaintiff slipped and fell. The district court
agreed with the defendants and, finding that ownership and
control were necessary elements of the plaintiff s case, entered
a judgment against her. In this appeal, the plaintiff challenges
the district court s ruling on the defendants motion under Fed.
R. Civ. P. 50(a) and several other rulings made during the course
of the litigation. For the reasons expressed below, we affirm
the district court s judgment.
Factual and Procedural Background
Factual and Procedural Background
On July 24, 1990, the plaintiff slipped and fell,
suffering personal injury after disembarking from an
international flight at the Luis Mu oz Mar n International
Airport in San Juan, Puerto Rico. On January 3, 1991, she filed
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suit against the defendants, Ports Authority and Mangual,1 for
negligently failing to make safe a dangerous condition about
which they knew or should have known.2 The plaintiff claimed she
suffered damages arising not only from the accident itself, but
also from the pain she suffered and medical expenses she incurred
when she became addicted to and went through withdrawal from
prescription medications she was taking because of the accident.
On March 30, 1993, the district court, after resolving
an initial challenge to its jurisdiction, granted the plaintiff
leave to amend her complaint and ordered the defendants to answer
the amended complaint on or before April 12, 1993. On March
31, 1993, the plaintiff resubmitted her amended complaint (first
submitted on February 25, 1992) but the defendants did not answer
by April 12 as required by the court s order. However, the
plaintiff did not bring this failure to the court s attention
until more than two years later.
On December 16, 1993, the district court issued a
pretrial conference report requiring the parties to submit a list
of uncontested facts. The parties agreed to a Joint Statement
of Uncontested Material Facts to Supplement Pretrial Order
( joint statement ) on December 17, 1993. The plaintiff attaches
1 Mangual is a janitorial company with which the Ports Authority
has contracted.
2 Coyante brought a separate action asserting similar claims
against L nea Aeropostal Venezolana, the airline on which she had
traveled. On June 22, 1992, the two cases were consolidated. On
January 25, 1994, the plaintiff and the airline settled their
dispute, leaving as defendants only Ports Authority and Mangual.
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particular significance to the following provisions of the joint
statement:
7. On July 24, 1990, co-defendant Mangual
provided janitorial services at the Luis
Mu oz Mar n International Airport pursuant to
a contract with the Puerto Rico Ports
Authority.
8. On July 24, 1990, the Puerto Rico Ports
Authority owned and operated the Luis Mu oz
Mar n International Airport.
However, the plaintiff alleges that she did not know of the
existence of this document until after she filed her appeal.
On February 9, 1994, the plaintiff attempted to
supplement her list of expert witnesses with a loss-of-income
expert.3 On June 9, 1995, the court denied her request to
include this expert as a witness without articulating the reasons
for its denial.
On December 12, 1994, the court entered a scheduling
order requiring discovery to be concluded by April 20, 1995. On
February 22, 1995, the plaintiff fired her counsel and, on
February 27, 1995, filed a pro se motion so informing the court.
On March 16, 1995, the court held a status conference. At that
conference, the court granted a motion filed by the plaintiff s
counsel to withdraw from the case and for scheduling purposes
asked counsel whether further discovery was pending at that time.
3 The plaintiff also attempted to add other witnesses who would
have bolstered her case on the issue of damages. We focus on the
district court s ruling on the loss-of-income expert because the
issues involved are identical.
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Counsel informed the court that no further discovery was pending,
and the court let stand its April 20, 1995, discovery deadline.
On March 23, 1995, current counsel appeared on the
plaintiff s behalf.4 The file he received from prior counsel was
reportedly in disarray and reflected that the plaintiff had
undertaken no discovery of the defendants. On April 19, 1995,
one day before the deadline set for discovery to be completed,
the plaintiff moved to extend the discovery deadline and take a
deposition. This motion was denied by the court on May 24, 1995.
On June 9, 1995, the plaintiff moved to supplement the
pretrial order issued on December 17, 1993, to reflect subsequent
changes in her case. The same day, the court held a pretrial
conference and ruled that it would use without amendment the
December 17, 1993, pretrial order, that the plaintiff s loss-of-
income expert would not be allowed to testify, and that no
further discovery would be allowed.
In July 1995, after four and one-half years, trial
appeared imminent. However, three days before trial the
plaintiff submitted a motion requesting that default be entered
against the defendants for their failure to answer her amended
complaint. The district court did not rule on this motion until
August 3, 1995, after the conclusion of the trial, at which time
it declared the motion moot.
4 The plaintiff s counsel at trial and on appeal was the seventh
lawyer to appear for her in this litigation, not counting her
brief pro se appearance. Prior lawyers were fired or left the
plaintiff s employ for such reasons as irreconcilable
differences and loss of confidence.
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At trial, the plaintiff s case focused almost
exclusively on her damages resulting from the fall. Beyond her
own testimony, she produced only one occurrence witness, Mirta
Silva, to describe the scene of the accident. The two witnesses
provided a detailed description both of the scene of the accident
and of how the accident occurred.5 However, neither Silva nor
the plaintiff identified specifically where within the airport
the accident occurred. There was no testimony about what gate
the flight used, which hallway the passengers traveled, or where
customs was located. No testimony specifically identified the
location of the accident within the larger context of the
airport.6 No testimony connected either defendant to the
location where the accident occurred or established what duty, if
any, the defendants owed to the plaintiff to make the location
safe. In fact, at trial the plaintiff made little mention of
defendant Ports Authority and produced no testimony at all
mentioning defendant Mangual.
At the close of the plaintiff s nine-day case, the
defendants moved for judgment as a matter of law under Fed. R.
Civ. P. 50(a), alleging that the plaintiff had not presented any
5 The accident occurred in a hallway which connected the area
where the passengers left the airplane with an adjoining customs
area. A pool of water, which apparently formed due to a crack in
the ceiling, covered almost the entire width of the hallway in
front of the door to customs. The plaintiff fell while
attempting to traverse the pool.
6 For example, an employee connected with the airport prepared a
report about the accident shortly after it happened that was
presented at trial but the report failed to specify the location
of the accident.
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evidence from which it could be found that the defendants were in
control of and responsible for maintaining the location where the
accident occurred. The district court granted the motion.
On September 1, 1995, the plaintiff filed a notice of
appeal from the district court s Rule 50(a) decision. In
connection with her appeal, the plaintiff requested a copy of the
file from the district court clerk and upon inspection of the
file allegedly discovered for the first time the joint statement.
The plaintiff had not mentioned the joint statement during the
presentation of evidence in her case or when opposing the
defendants Rule 50(a) motion.
Discussion
Discussion
The plaintiff on appeal has assigned as error a number
of decisions by the district court during the course of this
litigation.
A. Rule 50(a) Decision
A. Rule 50(a) Decision
The plaintiff contends that the district court
improperly dismissed her case under Fed. R. Civ. P. Rule 50(a).
Rule 50(a)(1) states:
If during a trial by jury a party has been
fully heard on an issue and there is no
legally sufficient evidentiary basis for a
reasonable jury to find for that party on
that issue, the court may determine the issue
against that party and may grant a motion for
judgment as a matter of law against that
party with respect to a claim or defense that
cannot under the controlling law be
maintained or defeated without a favorable
finding on that issue.
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We review the grant of a Rule 50(a) motion de novo. Katz v. City
Metal Co., 87 F.3d 26, 28 (1st Cir. 1996); Andrade v. Jamestown
Hous. Auth., 82 F.3d 1179, 1186 (1st Cir. 1996). In doing so, we
use the same standards as the district court, considering all the
evidence and inferences reasonably to be drawn from it in the
light most favorable to the non-movant. Katz, 87 F.3d at 28;
Andrade, 82 F.3d at 1186. However, [t]o warrant submission of
an issue to the jury, the plaintiff must present more than a
mere scintilla of evidence and may not rely on conjecture or
speculation. Katz, 87 F.3d at 28 (quoting Richmond Steel, Inc.
v. Puerto Rican American Ins. Co., 954 F.2d 19, 22 (1st Cir.
1992)).
The plaintiff s attack on the trial court s decision to
enter judgment against her as a matter of law centers on two
factors that she claims bolster the minimal evidence she
presented: the joint statement and the knowledge of the jurors.
According to the plaintiff, either factor, when combined with the
testimony about the location of the accident, was sufficient to
allow the jurors to make an inference in her favor as to the
ownership and control of the area.
1. The Joint Statement
1. The Joint Statement
The plaintiff argues that the joint statement should
have been considered as part of her case, and contends that it
was sufficient to establish that Ports Authority owned and
Mangual maintained the area of the airport where the accident
occurred. However, the plaintiff s argument suffers from a fatal
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defect, namely, the joint statement was never introduced into
evidence.7 It is a basic tenet of trial procedure that a
stipulation concerning uncontested facts must be introduced into
evidence by the party who intends to rely on it in order for
those facts to be considered by the trier of fact, whether it be
jury or judge. Contrary to the plaintiff s assertion, it was her
responsibility, and not the court s or the defendants , to ensure
that the joint statement was introduced into evidence. As we
have explained,
in our adversary system of justice it is the
parties responsibility to marshal evidence
and prove their points. Litigants cannot
expect the court to do their homework for
them. [Citations omitted].
Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 356-57 (1st Cir.
1994). The plaintiff, for whatever reason having failed to
introduce the joint statement into evidence, cannot now avoid the
consequences of her inaction by claiming the court or the
defendants had the responsibility to introduce it.8
7 Even if the plaintiff had introduced the joint statement into
evidence, it is by no means a foregone conclusion that it would
have sufficiently cured the deficiency in her evidence to
withstand the Rule 50(a) motion. We need not confront this
issue, however, because the plaintiff never introduced the joint
statement into evidence.
8 The plaintiff has also offered two other related theories
concerning the effect of the joint statement. First, she claims
that the agreement that produced the joint statement should have
barred the defendants from moving for judgment as a matter of law
on the issues of ownership and control. She further asserts that
the joint statement functioned as a contract between the parties,
one of the implied terms of which was the defendants promise not
to contest ownership and control, and that breach of this
agreement requires reversal. As the plaintiff has produced
neither legal authority nor well-reasoned arguments for these
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2. The Jury s Experience
2. The Jury s Experience
The plaintiff next contends that she produced enough
evidence at trial to allow the jurors to infer, based on their
own experience, that defendant Ports Authority owned and
controlled the area of the airport where the accident took
place.9 The trial judge, the plaintiff maintains, impermissibly
substituted his judgment for that of the trier of fact by
removing this decision from the jury.
This case clearly does not present a situation where
the jury could rely on its general knowledge and experience to
determine something as specific as the location and control of
the area where the plaintiff fell. It would be pure speculation
to assume what, if any, knowledge the members of the jury
possessed concerning these specific issues. Although the
plaintiff correctly notes that she is entitled to all reasonable
inferences in her favor, tenuous conclusions extrapolated from
conjectural knowledge attributed to jurors cannot substitute for
evidence tested by the adversary process. As we have said, [t]o
warrant submission of an issue to the jury, the plaintiff must
present more than a mere scintilla of evidence and may not rely
on conjecture or speculation. Katz, 87 F.3d at 28 (quoting
propositions, we decline to find that either one is viable under
the facts of this case.
9 At oral argument, the plaintiff conceded that defendant
Mangual s liability could be established only by the joint
statement, and not by the jurors experience and knowledge,
because the plaintiff produced no evidence at trial that referred
to Mangual.
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Richmond Steel, Inc. v. Puerto Rican American Ins. Co., 954 F.2d
19, 22 (1st Cir. 1992)). Speculation about what the jurors might
have inferred based on their personal knowledge of airports
cannot and does not save the plaintiff s case.
3. Other Evidence from which an Inference of Ownership or
3. Other Evidence from which an Inference of Ownership or
Control Might Arise
Control Might Arise
We next review de novo the record upon which the
plaintiff rested her case for any evidence that might raise a
reasonable inference that Ports Authority owned and Mangual
maintained the area where the accident occurred. A thorough
search of the appellate record reveals no evidence more helpful
to the plaintiff than that considered, and rejected as
inadequate, by the district court.
The trial judge made the following statement after
considering the Rule 50(a) motion:
I cannot take judicial notice of a place
that I don t even know which is the place.
We cannot, by any stretch of the imagination,
and even viewing the evidence in the light
most favorable to the [plaintiff], reach a
reasonable conclusion . . . that the place
where she fell, which we don t know where it
is, we don t know which gate, we don t know
which area of the airport, was under the
control of the Ports Authority . . . .
Our independent evaluation of the paucity of evidence the
plaintiff managed to produce on this point after nine days of
trial draws us inexorably to the same conclusion -- the evidence
produced by the plaintiff was insufficient to withstand judgment
for the defendants as a matter of law.
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We conclude that the district court properly granted
the defendants Rule 50(a) motion. The plaintiff had ample
opportunity at trial to produce evidence from which the location
of the accident and the ownership and control of that location
could be determined, but she failed to do so.
B. Pre- and Post-Trial Rulings
B. Pre- and Post-Trial Rulings
The plaintiff next challenges several pre- and post-
trial rulings by the district court.
1. Discovery
1. Discovery
The plaintiff asserts that the district court erred in
prematurely ordering that discovery be concluded when it failed
to extend the discovery deadline. She argues that the district
court improperly decided that no further discovery was needed
based on a conference in which an attorney previously dismissed
by the plaintiff purported to act as her counsel. We review the
district court s decision refusing to extend the discovery
deadline for abuse of discretion. Mulero-Rodr guez v. Ponte,
Inc., 98 F.3d 670, 679 (1st Cir. 1996).
The persuasiveness of the plaintiff s argument is
undercut by its lack of supporting legal authority. In fact, the
relevant extant authority runs contrary to the plaintiff s
position. As we have noted, courts have discretion
under the inherent power necessarily vested
in [them] to manage their own affairs so as
to achieve the orderly and expeditious
disposition of cases.
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Luis C. Forteza & Hijos, Inc. v. Mills, 534 F.2d 415, 418 (1st
Cir. 1976) (quoting Link v. Wabash, 370 U.S. 626, 630-31 (1962)).
The minutes of the March 16, 1995, status conference
indicate that the trial judge did not abuse his discretion in
conducting the conference. At that conference the trial judge
properly recognized the plaintiff s former counsel for the
limited purpose of granting him permission to withdraw from the
case and at the same time made an appropriate inquiry of him as
to the status of any pending discovery. Counsel indicated that
no discovery was pending. The trial judge s decision not to
extend discovery at that time based on counsel s response was an
appropriate exercise of his case management authority given the
fact that the case had been languishing on the district court
docket for more than four years and there had been ample time for
discovery to be completed. There was still an opportunity for
the plaintiff s successor counsel to attempt in a timely fashion
to have the deadline extended. However, he waited for one month
after appearing in this case to request an extension, and that
request was filed on the day before the existing deadline for
discovery. The trial judge had provided ample time for
discovery, and the plaintiff s failure to take advantage of that
opportunity, whether attributable to her personally or to her
attorneys, does not provide an adequate basis for us now to
second-guess the trial judge s determination that, after four
years, the time to conclude discovery had come.
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2. Entry of Default
2. Entry of Default
The plaintiff also asserts that the district court
should have entered a default against the defendants for their
failure to answer her amended complaint rather than allowing the
motion to become moot. As we have noted, [a] default judgment
is itself a drastic sanction that should be employed only in an
extreme situation. Forteza, 534 F.2d at 419; cf. Anderson v.
Beatrice Foods Co., 900 F.2d 388, 396 (1st Cir.) (discovery
abuse, while sanctionable, does not require as a matter of law
imposition of most severe sanctions available), cert. denied,
498 U.S. 891 (1990). The facts of this case do not present an
extreme situation justifying the entry of default.
It is certainly not without significance that the
plaintiff took no action in response to the defendants failure
to answer until more than two years after the deadline had
passed. In addition, the defendants had already answered the
plaintiff s initial complaint and the amended complaint did not
materially alter the plaintiff s theory of the case. There is
nothing in the record to suggest that the district court s
failure to enter a default judgment under these circumstances was
an abuse of discretion. In another context, we have endorsed the
authority of district courts to impose less than the most extreme
sanction available. See Anderson, 900 F.2d at 396 (discovery
abuse). We will not upset the district court s decision, which
rested within its sound discretion, not to enter a default
judgment against the defendants.
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3. Exclusion of Plaintiff s Expert Witness
3. Exclusion of Plaintiff s Expert Witness
The plaintiff next argues that the district court
improperly barred her from amending her pretrial submissions to
include her loss-of-income expert. She argues that allowing her
loss-of-income expert to testify would have created no surprise
or prejudice to the defendants because he was known to them and
that excluding him deprived the plaintiff of her right to present
those facts to the jury.
We need not reach the merits of this argument. Since
the plaintiff failed to establish the defendants liability, the
district court s ruling on this matter did not affect the outcome
of the case.
4. Costs and Expenses
4. Costs and Expenses
Finally, the plaintiff seeks the costs and expenses
she incurred at trial. Since the plaintiff did not prevail at
trial and has provided neither justification nor legal authority
to support her claim that she is entitled to costs and expenses
as a non-prevailing party, we find no abuse of discretion in the
trial court s decision not to award her any costs or expenses.
Conclusion
Conclusion
For the reasons stated above, the judgment of the
district court is affirmed. Costs are awarded to the defendants.
affirmed
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