[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1940
HIDEKO T. WORCESTER AND CHARLES E. WORCESTER,
Plaintiffs, Appellants,
v.
FILENE'S BASEMENT, CORPORATION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
Hideko T. Worcester and Charles E. Worcester on brief pro se.
Joseph P. Musacchio and Melick & Porter, LLP on brief for
appellees Filene's Basement Corporation, Howard Nyman, Ray McCarthy,
Colleen Fitzpatrick, Maureen Supple, and Retail Enterprises, Inc.
Merita A. Hopkins and Robert J. Boyle, Jr. on brief for appellees
Francis M. Roache, Ralph Caulfield, and Leo Coogan.
September 5, 1997
Per Curiam. Appellants Hideko and Charles
Worcester appeal from the amount of damages the jury awarded
and from two orders of the district court entered prior to
trial. For the following reasons, we find that appellants'
contentions lack merit.
1. Damages. First, "[w]e generally will not
review a party's contention that the damages award is
excessive or insufficient where the party has failed to allow
the district court to rule on the matter." O'Connor v.
Huard, 117 F.3d 12, 18 (1st Cir. 1997). The record reflects
that the district court was never provided with such an
opportunity. In any event, the only evidence appellants
present in support of their claim that the damages award was
too low is new evidence. Of course, this court does not
consider arguments or evidence not presented to the district
court. Matthews v. Marsh, 755 F.2d 182, 183-84 (1st Cir.
1985).
2. Joseph Doe's Dismissal. We think that what
appellants really are complaining about is the district
court's denial of their motion to substitute "Robert
Constine" for "Joseph Doe," which we treat as a motion to
amend the complaint to add an additional defendant. We
review the denial of such a motion for abuse of discretion.
Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.
1994). "[U]nseemly delay, in combination with other factors,
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may warrant denial of a suggested amendment." Quaker State
Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517
(1st Cir. 1989).
Here, appellants waited to move to amend the
complaint for about one year after the other police officer
involved in Hideko's arrest had been identified. In such a
situation, "the movant[s] ha[ve] the burden of showing some
valid reason for [their] neglect and delay." Grant v. News
Group Boston, Inc., 55 F.3d 1, 6 (1st Cir. 1995). Appellants
do not present such reasons. First, to the extent that
appellants allege that the actions of their prior counsel
contributed to the delay in moving to amend the complaint,
appellants are bound by the acts or omissions of their
attorneys. United States v. One Lot of $25,721 in Currency,
938 F.2d 1417, 1422 (1st Cir. 1991).
Second, the record reveals that after counsel
withdrew, it was appellants' own inaction which caused the
further delay. Such inaction cannot constitute a valid
reason. See Hayes v. New England Millwork Distributors,
Inc., 602 F.2d 15, 20 (1st Cir. 1979). In any event, we
think that both the court and the police defendants would
have been prejudiced by the addition of a new defendant so
late in the case because discovery would have had to be
reopened. See Grant, 55 F.3d at 5-6.
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3. Motion of Francis M. Roache for Summary
Judgment. The district court did not abuse its discretion in
denying appellants' request for more time in which to conduct
the discovery necessary to oppose this motion because the
record reveals that prior to the motion, ample time had
existed for such discovery. See Price v. General Motors
Corp., 931 F.2d 162, 164 (1st Cir. 1991) (a party must show
"good cause" for the failure to have conducted discovery
earlier). Further, "[a] court may grant summary judgment
despite an opposing party's claim that discovery would yield
additional facts where the opposing party has not alleged
specific facts that could be developed through such
discovery." Taylor v. Gallagher, 737 F,2d 134, 137 (1st Cir.
1984). Appellants alleged no such facts here.
We have reviewed the remainder of appellants'
arguments and can find no reason to disturb the judgment of
the district court. Affirmed.
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