[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1903
JOSE M. APONTE, ET AL.,
Plaintiffs, Appellees,
v.
MARTHA TABARES, D/B/A MANHATTAN HOLDING COMPANY, ET AL.,
Defendants, Appellees.
DELIA ESTHER RIVERA-PEREZ, D/B/A MANHATTAN HOLDING COMPANY,
D/B/A TRADING CAPITAL INTERNATIONAL CORP.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Carlos M. Mangual Lopez on brief for appellant.
Frank D. Inserni on brief for appellees.
May 8, 1997
Per Curiam. Delia E. Rivera-Perez ("Rivera")
appeals from a judgment entered after a jury verdict in favor
of plaintiffs on their fraud claims. We have carefully
considered her arguments on appeal and determined that they
are without merit.
I. Subject Matter Jurisdiction
Appellant challenges the federal district court's
subject matter jurisdiction on the ground that plaintiffs
failed to satisfy the jurisdictional amount in controversy
requirement. Limits on subject matter jurisdiction are not
waivable and, therefore, may be raised at any time. 15 James
Wm. Moore, et al., Moore's Federal Practice 102.13 (3d ed.
1997). "For the purposes of establishing diversity
jurisdiction, the amount in controversy is determined by
looking to the circumstances at the time the complaint is
filed." Coventry Sewage Assocs. v. Dworkin Realty Co., 71
F.3d 1, 4 (1st Cir. 1995). Therefore, "the jurisdictional
amount test is not dependent upon the amount actually
recovered by plaintiff." 14A Charles A. Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure
3702 at 31 (1985).
In a case like this one where a defendant has
challenged plaintiffs' allegations concerning the amount in
controversy, "the plaintiff must produce sufficient evidence
to meet the requirements of the 'legal certainty' test by a
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preponderance of the evidence supported by competent proof.
'Competent proof' has been defined as proof to a reasonable
probability that jurisdiction exists." 15 Moore's Federal
Practice, supra, 102.107[1]. Under the legal certainty
test, plaintiffs must establish "that it does not appear to a
legal certainty that the claim is below the jurisdictional
minimum." Id., 102.106[1].
We assume for purposes of this appeal that these
plaintiffs' claims cannot be aggregated for purposes of
calculating the requisite jurisdictional amount. See 15
Moore's Federal Practice, supra, 102.108[3][b]. We have
included claims for damages for pain and suffering in the
calculation. Pain and suffering damages are recognized under
Puerto Rico tort and contract law. See Serrano v. Nicholson
Nursery, Inc., 844 F. Supp. 73, 76 (D. Puerto Rico, 1994).
We conclude that each plaintiff met his burden of
demonstrating that it does not appear to a legal certainty
that his claim is below $50,000.
II. Judgment as a Matter of Law and Failure
to State a Claim
Appellant argues that the district court erred in
denying her motion pursuant to Fed. R. Civ. P. 50, for
judgment as a matter of law where "there is no legally
sufficient evidentiary basis for a reasonable jury to find
for that party on that issue." In reviewing the denial of a
motion for judgment as a matter of law, we review the record
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to determine whether it "provides an adequate evidentiary
basis for the district court's decision to submit the matter
to the jury." Santiago Hodge v. Parke Davis & Co., 909 F.2d
628, 634 (1st Cir. 1990). Without the trial transcripts,
which appellant has not provided, this court cannot make that
determination. Therefore, appellant is not entitled to
relief on the ground that the district court erred in denying
her motion for judgment as a matter of law.1 See Valedon
1
Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806
F.2d 1128, 1135 (1st Cir. 1986) (this court will not review a
claim of error if appellant has failed to include a
transcript of the pertinent proceedings in the record on
appeal).
Appellant argued in her motion to dismiss, as she
does on appeal, that the complaint failed to state a claim
against her for fraud or breach of contract. She argued that
she was not a party to the contracts between MHC and
plaintiffs and, therefore, was not liable thereon. She
further contended that "in the absence of contractual
obligation a party cannot be charged with fraud." The
elements of a fraud claim under Puerto Rico law are 1) a
false representation by defendant, (2)the plaintiff's
1 Similarly, Rivera's claim that, as a matter of law, co-
1
plaintiff Carlos Fernandez "did not have a cause of action
against Delia Rivera based on his testimony [at trial],"
cannot be reviewed without the trial transcripts.
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reasonable and foreseeable reliance thereon, injury to
plaintiff from his reliance, and (4) intent to defraud by
plaintiff. See Wadsworth, Inc. v. Schwarz-Nin, 951 F. Supp.
314, 323 (D. Puerto Rico 1996). The complaint sufficiently
alleged each of the required elements.
III. Attachment
We affirm the district court's order dated August
1, 1995 essentially for the reasons stated therein. We add
only the following comments concerning appellant's arguments
on appeal that the bond amount was insufficient and that the
hearing was inadequate because no evidence was introduced.
Under Rule 56.3 of the Puerto Rico Rules of Civil
Procedure, P.R.Laws Ann. Tit. 32, App. III, the amount of a
bond to support an ex parte attachment must be "sufficient to
secure all damages arising from the remedy." P.R.R. Civ. P.
56.3. The Supreme Court of Puerto Rico has cautioned that
"the amount [of an attachment bond] should not be so
excessive as to thwart the plaintiffs' purpose of securing
the effectiveness of the judgment to be timely rendered."
Conjugal Partnership v. Rodriguez, 116 D.P.R. 463 (1985).
Moreover, "the amount of the bond would always be subject to
change if the defendant could show that the damage the
attachment causes him exceeds the amount of the bond." Id.
Appellant did not object to the amount of the bond until the
hearing requested by plaintiffs and she did not seek to
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introduce any evidence to demonstrate that the amount of the
bond was inadequate to cover potential damages from the
attachment. Under these circumstances, the district court
did not err in setting the amount of the bond at $20,000.
Appellant argues that the post-attachment hearing
was inadequate because it was not a full evidentiary hearing.
From the minutes of the hearing, it appears that Rivera did
not request the opportunity to present evidence or object to
plaintiffs' failure to present evidence. Rule 56.5 of the
Puerto Rico Rules of Civil Procedure does not require a full
evidentiary hearing. Cf. HMG Property Investors v. Parzue
Indus. Rio Canas, 847 F.2d 908, 914 (1st Cir. 1988) (holding
that Rule 56.2 "requires notice and a fair chance to marshal
supporting facts and theories -- nothing more"). Appellant
still has not explained what evidence ought to have been
presented and how it would have changed the outcome of the
attachment hearing.
The district court order affirming the attachment
order is affirmed. The district court judgment in favor of
plaintiffs dated June 10, 1996, is affirmed. See Loc. R.
27.1.
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