United States Court of Appeals
For the First Circuit
No. 98-1553
No. 99-1307
No. 99-2056
No. 99-2211
GOYA FOODS, INC.,
Plaintiff, Appellee,
v.
LILIANE UNANUE and KALIF TRADING, INC.,
Defendants, Appellants.
__________
ULPIANO UNANUE-CASAL,
a/k/a CHARLES UNANUE
Defendant.
No. 98-1554
No. 99-1308
No. 99-2057
No. 99-2212
GOYA FOODS, INC.,
Plaintiff, Appellee,
v.
ULPIANO UNANUE-CASAL,
a/k/a CHARLES UNANUE,
Defendant, Appellant.
__________
LILIANE UNANUE and KALIF TRADING, INC.,
Defendants.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Selya, Circuit Judge,
Wallace,* Senior Circuit Judge,
and Boudin, Circuit Judge.
Jan Alan Brody with whom Roger Juan Maldonado, Jared
Forminard and Balber Pickard Battistoni Maldonado & Van Der
Tuin, PC were on consolidated brief for defendants Liliane
Unanue and Kalif Trading, Inc.
Ulpiano Unanue-Casal, a/k/a Charles Unanue, pro se.
David J. Eiseman, Jose-Manuel A. de Castro and Golenbock,
Eiseman, Assor & Bell on consolidated brief for defendant
Ulpiano Unanue-Casal, a/k/a Charles Unanue.
Ira Brad Matetsky, Legal Department, Goya Foods, Inc., with
whom Arturo J. Garcia Sola and McConnell Valdes were on
consolidated brief for plaintiff.
November 28, 2000
*Of the Ninth Circuit, sitting by designation.
BOUDIN, Circuit Judge. This case involves an effort
by a judgment creditor to reach both certain assets of the
debtor nominally owned by the debtor's wife, and all assets
owned by the debtor's alleged corporate "alter ego," Kalif
Trading, Inc. The judgment creditor is Goya Foods, Inc., a
major business founded in the 1930s which is now a Delaware
corporation with its principal place of business in New Jersey.
The debtor is Ulpiano Unanue-Casal, known as Charles, and his
bankruptcy estate. The factual background and prior proceedings
are as follows.
From the late 1940s until 1969, Charles served as one
of the chief officers of Goya, a company founded by his father.
In June 1969, in a quarrel among family members, Charles was
dismissed and litigation ensued. As a result of settlements in
1972 and 1974, Charles received more than $4 million from Goya
and, in exchange, gave up his interest in Goya. Charles also
agreed not to bring any further claim or suit regarding his
father's will or estate. The agreement provided for liquidated
damages of twice the winning side's litigation expenses,
including attorney's fees, if any signatory wrongfully initiated
new litigation against another signatory.
In 1987, Charles made a claim for a share of the
inheritance from his parents, and litigation in New Jersey state
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court followed, with his brothers seeking a declaration that
Charles had no interest in either his father's estate or his
inter vivos trust. In 1990, while the New Jersey litigation
proceeded, Charles filed for bankruptcy in Puerto Rico, and his
bankruptcy estate thereafter became a party to the New Jersey
litigation. In February 1995, the New Jersey court entered a
judgment against both Charles and his estate for about $6.9
million, representing liquidated damages for Goya, a signatory
of the 1974 settlement that Charles had violated by making his
inheritance claims.1
Meanwhile, prior to this New Jersey judgment, Goya had
begun adversary proceedings in Charles' bankruptcy case in
Puerto Rico, asserting that Charles was concealing his own
assets under the names of his wife, Liliane, and two other
companies, Emperor Equities, Inc., a Delaware corporation wholly
owned by Liliane, and Kalif Trading, a Panamanian corporation
which was organized by Charles. 2 On September 12, 1995, the
1The New Jersey judgment was entered, In re Unanue, No. M-
128817, slip op. (N.J. Super. Ct. Ch. Div. Feb. 23, 1995), and
has since been affirmed, 710 A.2d 1036, 1041 (N.J. Super. Ct.
App. Div.), cert. denied, 724 A.2d 801 (N.J. 1998).
2In 1991, after Emperor sold a piece of real property and
proceeds were transferred to a Swiss bank account in Liliane's
name, the bankruptcy court restrained remaining sales of real
property pendente lite. See Quiros-Lopez v. Unanue-Casal (In re
Unanue-Casal), 144 B.R. 604, 606-07 (D.P.R. 1992).
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bankruptcy court dismissed Charles' bankruptcy case without
granting him a discharge. In re Unanue-Casal, No. 90-04490,
slip op. at 5 (Bankr. D.P.R. Sept. 12, 1995).
In November 1995, nine months after obtaining the New
Jersey judgment for $6.9 million, Goya brought the present
action in federal district court in Puerto Rico against Charles,
Liliane, and Kalif Trading, seeking to enforce the New Jersey
judgment against Charles and against properties that Goya
claimed belonged to Charles but were held in the name of Liliane
or Kalif Trading. A ten-day bench trial ensued in the district
court in July 1997, and both Charles and Liliane testified. On
October 31, 1997, the court filed a lengthy decision in Goya's
favor, Goya Foods, Inc. v. Unanue-Casal, 982 F. Supp. 103
(D.P.R. 1997). Clarifying amendments to the judgment followed
on March 10 and December 14, 1998.
The district court concluded that Charles was the true
owner of specified cash, securities and various real properties
held in the names of Liliane, Emperor Equities, and Kalif
Trading. The court rejected as false assertions by Charles and
Liliane that Kalif Trading was owned by a wealthy Arab (who did
not appear at trial), and that a supposed fortune inherited by
Liliane from her family accounted for various of the real
properties held in her name.
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The judgment, as finally amended, determined that Kalif
Trading was Charles' alter ego and was therefore responsible for
the New Jersey judgment to the full extent of its assets. As
for Liliane, the court's judgment provided that Goya could
execute only against the following: (1) the proceeds of the
Sutton House apartment Liliane had earlier owned in New York but
since sold; (2) "any residence registered to her name, including
the Fuengirola, Malaga, Spain villa, and the Paris apartment";3
and (3) the stock of Emperor Equities, all of which was held in
Liliane's name, and which the court directed Liliane to deposit
with the court.
Charles, Liliane and Kalif Trading have now appealed
from the district court's judgment. They contest the findings
of fact and legal conclusions that led the district court to
impose liability for the New Jersey judgment on property held in
the name Liliane, Kalif Trading and Emperor Equities. They also
contend that the statute of limitations and a contractual
release debar Goya's claims and say that the district court
3Fairly read, the judgment encompasses another New York
apartment on Park Avenue which was the subject of evidence at
trial and was held in Liliane's name at the time of the
judgment. Apart from these three real properties, it is not
clear what other real property held in Liliane's name at the
time of the judgment was meant to be included.
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committed various procedural errors. We consider the merits of
those arguments that have not been forfeited.
1. Kalif Trading. It is easiest to begin with the
district court's treatment of Kalif Trading, an off-shore
company that Charles organized in 1979 and for which he and
Liliane have had general power of attorney since incorporation.
In November 1980, Charles transferred over $1 million to Kalif
Trading in assets from his own securities account. At about
this time, he ceased to pay alimony to a former wife and also
stopped paying taxes, claiming that he no longer had any income
or assets. In August 1983, Kalif Trading was also given title
of a penthouse apartment in Puerto Rico previously held by
Emperor Equities and apparently acquired with Charles' assets.
At trial, Charles claimed that Kalif Trading was owned
by one Mohammed Kalif, but the court found that there was no
evidence that Mohammed Kalif existed (he did not appear at
trial), and that the company was a vehicle used by Charles to
conceal his own assets. This finding was supported not only by
Charles' effective control of the assets, but also by his use of
Kalif Trading's bank accounts to pay hundreds of thousands of
dollars in bills for Charles and his wife, by the transfer of
assets from Charles to Kalif Trading, and by the timing of Kalif
Trading's creation.
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In imposing liability on Kalif Trading, the district
court applied New York law, after finding that Puerto Rico
courts would apply a "most significant contacts" test, A.M.
Capen's Co. v. American Trading & Prod. Corp., 74 F.3d 317, 320
(1st Cir. 1996), and that New York's contacts with transactions
involving Kalif Trading were greater than those of any other
relevant jurisdiction. The brief filed for Liliane and Kalif
Trading does not dispute the decision to apply New York law;
Charles does so in his reply brief, but his arguments are terse,
unpersuasive and too late. Rivera-Muriente v. Agosto-Alicea,
959 F.2d 349, 354 (1st Cir. 1992).4
Under New York law, the corporate veil may be
disregarded where the challenger shows two facts: (1) complete
domination of the corporation by its alleged alter ego, and (2)
use of that domination to commit a fraud or wrong against the
plaintiff. Morris v. New York State Dep't of Taxation & Fin.,
623 N.E.2d 1157, 1160-61 (N.Y. 1993); see also New York v.
Easton, 647 N.Y.S.2d 904, 908 (N.Y. Sup. Ct. 1995). Although
4 Panama, as the state of incorporation, may well supply the
presumptively applicable legal regime for veil piercing claims;
but under the Restatement rule, apparently followed in Puerto
Rico, New York law could nevertheless be applied where, as here,
Kalif Trading's business activities occurred primarily in New
York and have no connection to Panama. See Wadsworth, Inc. v.
Schwarz-Nin, 951 F. Supp. 314, 320-21 (D.P.R. 1996) (citing
Restatement (Second) of Conflict of Laws § 309 (1971)).
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veil piercing is usually employed to make an individual or a
corporate parent liable for the debts of a corporation, so-
called "reverse piercing" (which makes the corporation liable
for the debts of its owner or parent) is allowed under New York
law where the assets at issue are held by the target corporation
and the liability is that of the individual who dominates the
corporation and is using it to perpetrate a fraud or wrong. Wm.
Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 933
F.2d 131, 138 (2d Cir. 1991).
It may be open to dispute whether Kalif Trading was
initially formed for the purpose of shielding assets from Goya.
Although the district court's decision so suggests, New York law
requires "clear and convincing" evidence of such fraud,
Lowendahl v. Baltimore & Ohio R.R. Co., 287 N.Y.S. 62, 76 (N.Y.
App. Div.), aff'd, 6 N.E.2d 56 (N.Y. 1936), and such evidence
seems lacking because Kalif Trading's formation and the transfer
of Charles' assets to it took place after Charles' original
litigation with Goya had been settled (in 1972 and 1974) and
before Charles made his 1987 claim for a share of his parents'
estate.
Nevertheless, even if Kalif Trading's origin is not
tainted by fraud, New York still permits veil piercing where the
corporate vehicle is being used to inflict "wrongful or
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inequitable consequences." TNS Holdings, Inc. v. MKI Sec.
Corp., 703 N.E.2d 749, 751 (N.Y. 1998). New York courts have
held that this test can be satisfied when a corporation is "a
mere shell dominated and controlled by another for the latter's
own purposes."5 Guptill Holding Corp. v. New York, 307 N.Y.S.2d
970, 973-74 (N.Y. App. Div. 1970), aff’d, 292 N.E.2d 782 (N.Y.
1972), is inapposite here because, given Charles' denial of
ownership of Kalif Trading, there is no easy way for Goya to
levy directly on Charles' formal ownership interest in Kalif
Trading.
There is ample proof that Kalif Trading is effectively
the alter ego of Charles--who created it, initially funded it
with his own assets, managed it, and paid his own and his wife's
expenses with its assets. Whether or not it was originally
created to shield assets from creditors, it is not a business
separate from Charles, and there is no indication it has any
owners other than Charles. It appears to us, as to the district
court, to be nothing other than Charles himself under another
name, and therefore under New York law it is permissible to
strip away the corporate fig leaf.
5
888 7th Ave. Assocs. Ltd. P'ship v. Arlen Corp., 569
N.Y.S.2d 16, 17 (N.Y. App. Div. 1991); see also National Union
Fire Ins. Co. v. Bodek, 705 N.Y.S.2d 42, 43 (N.Y. App. Div.
2000); Austin Powder Co. v. McCullough, 628 N.Y.S.2d 855, 857
(N.Y. App. Div. 1995).
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2. Assets in Liliane's Name. The claim as to Liliane's
assets is more complicated. In 1968, Liliane and Charles took
joint title to an apartment in San Juan, Puerto Rico, and in
1971, during the earlier round of litigation between Charles and
Goya, the title to the apartment was transferred to Emperor
Equities, Inc., a Delaware corporation wholly owned by Liliane.
During and after 1972, the year in which Charles received the
first installment of payments from Goya, Liliane and Emperor
Equities developed a pattern of real estate acquisitions in
which they obtained title to other luxury residences in Puerto
Rico, New York, France, and Spain.
At trial, Liliane claimed that these properties had
been acquired with assets provided by her once wealthy Bulgarian
family. However, the district court concluded that this story
was untrue, being uncorroborated and inconsistent with other
evidence. It also concluded that the properties in question had
been purchased by Charles, who used and enjoyed all of the
residences "and in many occasions referred to them as his own in
letters to third parties." Goya Foods, 982 F. Supp. at 112. In
substance, the court found that Charles was "hiding his assets
in the name of his wife for the purpose of impairing his
creditors." Id.
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Liliane's brief makes no persuasive attack on the
district court's findings, which we find were adequately
supported. Rather, the brief concentrates its criticism on the
district court's theory of liability. Because the district
court described Liliane as Charles' "alter ego" in relation to
the acquisitions, Liliane says that the district court wrongly
applied to a human being a theory that is only valid in relation
to corporations. See, e.g., Werner-Jacobsen v. Bednarik, 946
P.2d 744, 747-48 (Utah Ct. App. 1997) ("An individual cannot be
the 'alter ego' of another."). Further, says Liliane, property
held in her name belongs to her "even if it were assumed that
Liliane obtained her properties with Charles' money and not with
her own . . . ."
The district court's use of the "alter ego" language
to describe the relationship between Charles and Liliane may be
inapt--no New York decision appears to use it in such
circumstances--and in New York the property of one spouse
certainly is not automatically subject to seizure for the debts
of the other spouse. But New York courts have used the
equitable theory of "constructive trust" to allow a third-party
creditor to execute judgment on assets nominally owned by
someone other than the debtor but, based on the court's
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findings, actually owned by the debtor himself.6 It appears to
us that, in using the alter ego language, the district court
meant only that the properties in question were Charles'
property but were merely held in his wife's name.
In some circumstances, even an intended transfer of
ownership can be set aside. For example, if a specific transfer
from one spouse to another were made without consideration to
defraud a creditor, a different set of New York doctrines
("actual or constructive fraud") could be invoked, see Scola v.
Morgan, 412 N.Y.S.2d 893, 895 (N.Y. App. Div. 1979); 30 N.Y.
Jur. 2d Creditors' Rts. & Remedies §§ 300-71 (1997); but in this
case there are no detailed findings with respect to each of the
individual transactions at issue that would establish fraudulent
intent, see In re Montclair Homes, 200 B.R. 84, 96 (E.D.N.Y.
1996), or constructive fraud, see N.Y. Debtor & Creditor Law §§
273-75 (McKinney 1990), nor did the district court purport to
make such findings.
However, under the theory of constructive trust, no
such specific findings are required if the purchases were with
Charles' own funds, the transfers of title to Charles' wife
6Duncan v. Laury, 292 N.Y.S. 138, 139-41 (N.Y. App. Div.
1937); cf. Tesmetges v. Tesmetges, 47 B.R. 385, 390-91 (E.D.N.Y.
1984). See generally Latham v. Father Divine, 85 N.E.2d 168,
170 (N.Y. 1949).
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Liliane were merely nominal, and the parties intended that
Charles continue to possess beneficial ownership of the
properties. See Bankers Sec. Life Ins. Soc'y v. Shakerdge, 406
N.E.2d 440, 440 (N.Y. 1980). This, in substance, is what the
district court found. It does not make Liliane personally
liable for her husband's debts; but it does mean that the
property which he beneficially owns but which happens to be held
in her name can be reached through the constructive trust
doctrine for the benefit of his creditors.
Here, the circumstantial evidence of an implicit
understanding is strong. The timing of the transactions in
relation to prospective litigation, Charles' continued treatment
of the properties as his own, the parallels to the deceptive
operation of Kalif Trading, and the inferences to be drawn from
Liliane's baseless claim that the properties were paid for with
family funds all contribute to the conclusion that the real
estate in question was Charles' and not Liliane's. Given that
Charles and Liliane's "agreement" could be inferred from the
circumstances, see In re Estate of Knappen, 655 N.Y.S.2d 110,
111-12 (N.Y. App. Div.), cert. denied, 683 N.E.2d 335 (N.Y.
1997), there is enough to sustain the district court's
assessment of the situation under a clear error standard.
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Two New York cases, not cited by the parties, make
clear that a constructive trust is not automatically justified
to undo a property transfer between spouses even when the
purpose of the transfer (in each case, one involving the marital
residence) is to protect against present or future claims by the
creditors of the transferring spouse.7 However, those cases are
distinguishable, for they involved what the New York courts
found to be genuine transfers that occurred without an
understanding between the parties that the property would remain
that of the transferring spouse. In our case, by contrast, the
thrust of the district court's findings is that ownership was
conveyed in name only.
This lack of an effective conveyance (and the resulting
applicability of constructive trust theory) also answers the
argument of Charles and Liliane that the statute of limitations
bars the effort to reach property held in Liliane's name.
Although the New York statute of limitations requires that suit
based on fraudulent conveyance be brought within six years of
the transfer or two of discovery (actual or constructive) of the
fraud, Wall St. Assocs. v. Brodsky, 684 N.Y.S.2d 244, 248 (N.Y.
App. Div. 1999), that is not the theory of recovery. In the
7
Macina v. Macina, 455 N.E.2d 1258, 1259 (N.Y. 1983), aff’g
463 N.Y.S.2d 43 (N.Y. App. Div. 1983); Rossignol v. Silvernail,
635 N.Y.S.2d 772, 773 (N.Y. App. Div. 1995).
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case of a constructive trust, the limitations period (six years,
Maric Piping, Inc. v. Maric, 705 N.Y.S.2d 684, 685 (N.Y. App.
Div. 2000)) begins to run only when "the wrongful withholding"
occurs, Augustine v. Szwed, 432 N.Y.S.2d 962, 965 (N.Y. App.
Div. 1980); accord Whalen v. Gerzof, 564 N.E.2d 656, 657 (N.Y.
1990), and the original date of transfer is not relevant.
The district court's rationale justifies its judgment
to the extent that it recognizes Goya's right to execute against
the identified real property held in Liliane's name,
specifically, the three named properties in New York, Paris, and
Malaga. However, despite its broad literal wording, Goya Foods,
982 F. Supp. at 112, we do not construe the district court
judgment as extending to any residence held in Liliane's name
that has not yet been identified in this litigation. The
constructive trust doctrine cannot easily be applied to property
whose identity and circumstances of acquisition are unknown.
3. Emperor Equities. Next, we consider the various
issues raised by Liliane's ownership of Emperor Equities. One
set of the real properties at issue were three condominium
apartments in Puerto Rico. One was acquired by Charles in 1968,
title being taken in the joint names of Charles and Liliane; in
1971, during Charles' litigation with Goya, this property was
transferred to Emperor, a corporation whose sole shareholder was
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Liliane. Two further condominiums in San Juan were acquired in
1972, after Charles received a large initial payment from Goya.
They too became properties of Emperor. One was transferred in
1983 to Kalif Trading, but the other remained in Emperor's name
until being sold to a third party in 1991.
Despite its involvement in Charles' and Liliane's real
estate transactions, Emperor was not named as a defendant in
Goya's district court action seeking to reach assets of Charles
held in the names of third parties. Liliane says that this is
because Emperor was a Delaware corporation and, as this was also
true of Goya, naming Emperor as the defendant would have
destroyed diversity jurisdiction. Strawbridge v. Curtiss, 7
U.S. (3 Cranch) 267, 267 (1806). Liliane says that it was an
error for the district court to order Emperor, a non-party to
the litigation, to forfeit its property, since Emperor was not
itself a party to the case.
The short answer is that the district court judgment
did not purport to reach properties held by Emperor at all.
Instead, as clarified by the amended judgment of December 14,
1998, the district court directed that the "stock certificates
and shares" of Emperor held by Liliane (it is unclear why both
words were used) should be deposited with the court so that they
could be used to satisfy the judgment. Such a judgment was
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within the district court's power, for Liliane was a party to
the case, and reaching securities that she owns does not require
that the securities' issuer be a party.
4. Miscellany. There remain two other arguments of
importance. First, in his opening brief on appeal, Charles
claims that, in seeking to enforce the New Jersey judgment, Goya
overlooked a procedural precondition. Since the New Jersey
judgment was not initially entered by another federal court, it
could not merely be registered in the federal district court in
Puerto Rico under 28 U.S.C. § 1963 (1994). Rather, enforcement
was governed by Fed. R. Civ. P. 69(a), providing that federal
proceedings to enforce any out-of-state judgment of a state
court should follow the practice of the state in which the
federal district court sits.
Charles asserts that, under Puerto Rico law, for a
foreign judgment to be enforceable in Commonwealth courts, it
must first be validated and domesticated in an "exequatur"
proceeding in the Superior Court of Puerto Rico. Ex parte
Marquez Estrella, 128 D.P.R. 243, 247-56 (1991). This
proceeding allows interested parties to raise certain limited
defenses against the enforcement of a foreign judgment. Charles
says that Goya failed to have the New Jersey judgment validated
in this manner, that the New Jersey judgment was therefore "not
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properly before the District Court," and that lack of an
exequatur proceeding deprived Charles of his right to challenge
validation of the judgment on the permitted grounds.
It may be (we take no position on the matter) that to
enforce a state court judgment in the federal district court in
Puerto Rico, there must be a prior exequatur proceeding8 or some
equivalent opportunity to challenge the non-Commonwealth
judgment in the federal proceeding itself. However, Charles and
Liliane first made their exequatur argument in July 1999, more
than a year and a half after the district court had initially
entered judgment against them. Thus, this argument was not made
in a timely fashion, whether viewed as subject to the ten-day
rule of Fed. R. Civ. P. 59(e) or the more relaxed one-year or
reasonable-time restrictions of Fed. R. Civ. 60(b).9
The exequatur objection is not one that goes to the
district court's subject matter jurisdiction and which might
8Compare Hibbs v. Yashar, 522 F. Supp. 247, 249-54 (D.R.I.
1981) (Rhode Island statute requiring preliminary judicial
screening of medical malpractice cases), with Feinstein v.
Massachusetts Gen. Hosp., 643 F.2d 880, 889 (1st Cir. 1981)
(Massachusetts law requiring screening of medical malpractice
claims by an administrative tribunal). See generally 19 Wright,
Miller & Cooper, Federal Practice and Procedure § 4511 (1996).
9Neither of the amended judgments substantively altered the
original judgment or provided any other excuse for the failure
to raise the exequatur issue in timely fashion. See Berwick
Grain Co. v. Illinois Dep't of Agric., 189 F.3d 556, 560 (7th
Cir. 1999).
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therefore be exempt from the ordinary requirements of
timeliness. See Sea-Land Serv., Inc. v. Ceramica Europa II,
Inc., 160 F.3d 849, 852 (1st Cir. 1998). Nor, it is worth
adding, is there any indication that Charles and Liliane were
precluded from raising in the district court any substantive
objections to the enforcement of the New Jersey judgment that
might have been asserted in a Commonwealth exequatur proceeding.
Charles did claim that the New Jersey court lacked jurisdiction
to enter the judgment against him, but he did not pursue this
issue on appeal in his opening brief, and it is therefore
forfeited.
Second, Liliane claims that the district court erred
by entering a default judgment against her and, later, by not
affording her a jury trial even though the court ultimately
allowed her to present her case on the merits. The district
court entered a default against Liliane in March 1997 as a
sanction for repeated failures to comply with court orders.
Liliane's earlier demand for a jury trial was then struck on
Goya's motion (no other party having made a timely request for
a jury trial). Nevertheless, at trial the district court
reversed field and allowed Liliane’s counsel to offer witnesses
and to present a defense, and it then resolved the claims
against her on the merits. At no time during the trial did
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Liliane offer an objection to the bench trial or ask the court
to reinstate her jury trial request.
On this appeal, little need be said about Liliane’s
challenge to the original default. Although the remedy was
severe, it followed obstreperous acts and clear advance warning
from the district court, and it was not an abuse of discretion.
Cf. Faigin v. Kelly, 184 F.3d 67, 84 (1st Cir. 1999); John's
Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101,
108-10 (1st Cir. 1998). The more troublesome question is
whether, insofar as the district court proceeded to try and
decide Liliane’s case on the merits, it should also have
afforded her the jury trial she originally demanded. In posing
this question, we assume dubitante that the original jury trial
request was proper.10
Assuming that a right to jury trial otherwise existed,
it was not preserved. Once the default was effectively
withdrawn, Liliane could not proceed to present her case without
telling the district court that she wanted the jury request
10
Imposition of a constructive trust is equitable in nature
and, thus, may not trigger the right to a jury trial under the
Seventh Amendment. See Granfinanciera, S.A. v. Nordberg, 492
U.S. 33, 40-42 (1989); RTC v. Pasquariello, 16 F.3d 525, 531 (3d
Cir. 1994); see also Latham v. Father Divine, 85 N.E.2d 168, 170
(N.Y. 1949) ("[A] constructive trust is merely the formula
through which the conscience of equity finds expression . . . ."
(internal quotation marks and citations omitted)).
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reinstated and then, after losing, complain that a jury should
have been afforded. This kind of mouse-trapping, whether
deliberate or inadvertent, is forbidden. Daigle v. Maine Med.
Ctr., Inc., 14 F.3d 684, 687-88 (1st Cir. 1994). A claim to a
jury trial can be forfeited just like any other non-
jurisdictional request or objection.
Appellants present other arguments, including claims
that personal jurisdiction over Charles and Liliane was lacking,
that Charles was denied adequate discovery, that Charles was
entitled to rely on Liliane's request for jury trial, that
(according to Charles) New York law does not apply, and that
misconduct by Goya warranted sanction and dismissal. However,
all of these claims have been raised only in reply briefs, and
it is well-settled that the attempt to present issues in this
manner is untimely and that such claims therefore need not be
considered. Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354
(1st Cir. 1992).
Finally, the appellants argue that a 1974 contractual
release given by Goya precludes Goya's present claims. This
argument was admittedly not presented to the district court and
is therefore forfeited in this court. It is doubtful that such
a defense, if not seasonably asserted, could ever be rescued by
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the plain error doctrine, but in any event there is no
miscarriage of justice in its forfeiture here.
The appellants also have made, or at least insinuated,
a variety of other arguments; to the extent these arguments are
properly before us, we believe that they are without merit, and
we reject them without detailed discussion. For the reasons
stated, the judgment of the district court is affirmed with the
clarification that insofar as the judgment permits Goya to levy
against real properties held in Liliane's name at the time of
judgment, it extends only to those real properties identified in
the district court proceedings and not other unnamed properties.
Appellants have pending a motion for reconsideration of our
prior order striking various exhibits, and we now deny the
motion to reconsider.
It is so ordered.
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