United States Court of Appeals
For the First Circuit
No. 00-2153
FRANCISCO CORRADA BETANCES,
Plaintiff, Appellant,
v.
SEA-LAND SERVICE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Harry Anduze Montaño and Noelma Colon Cordoves on brief for
appellant.
Raquel M. Dulzaides, Carlos George, and Jimenez, Graffam &
Lausell on brief for appellee.
May 3, 2001
SELYA, Circuit Judge. In this appeal, plaintiff-
appellant Francisco Corrada Betances (Corrada) invites us to
reverse a summary judgment order entered in favor of his former
employer, defendant-appellee Sea-Land Service, Inc. (Sea-Land).
We decline the invitation.
I
The summary judgment record (which, as we shall see,
consists almost entirely of Sea-Land's submissions) reveals
that, in late 1992, Corrada began working as assistant manager
of Sea-Land's marine department in Puerto Rico. His duties
involved supervising the loading and unloading of vessels and
performing ancillary administrative tasks.
At all times relevant hereto, Sea-Land had in force a
personnel policy prohibiting employees both from drinking while
working and from appearing at work under the influence of
alcohol. The policy stipulated that a first infraction would
result in a two-week suspension without pay and that a second
infraction, occurring within eighteen months of the first, would
result in loss of employment. Sea-Land furnished a copy of this
policy to Corrada coincident with his hiring.
At the end of his shift on April 21, 1997, Corrada left
Sea-Land's premises with Ernie Ostolaza, a fellow supervisor.
The pair visited various watering holes, imbibing as they went.
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Five hours later, they returned to Sea-Land's premises to
retrieve Ostolaza's car. After they arrived, they did not
simply drive away, but, rather, entered the marine department
office (where others were still toiling) and engaged in raucous
behavior. The matter apparently was reported through channels
and, on April 22, Corrada and Ostolaza were suspended for two
weeks. For aught that appears, this suspension was neither
vacated nor overturned.1
Corrada returned to work in May. On November 11, 1997,
he called the office to say that he would be late for work.
When he arrived, he was wearing the same clothes that he had
been wearing the day before, and a fellow supervisor, Victor
Ortega, smelled a strong odor of alcohol on his breath. Various
co-workers noticed slurred speech, bloodshot eyes, slumped
posture, and other indicia of inebriation. The marine manager,
Juan Carrero, spent a few minutes with Corrada, obviously
disliked what he saw, told Corrada that he was in no shape to
work, and ordered him to leave the premises. The next day, Sea-
Land terminated Corrada's employment.
II
1
This undermines the claim made in Corrada's appellate
brief, that his initial suspension was unwarranted under a
literal interpretation of the personnel policy (which threatens
suspension if an employee "is found to be drinking on the job or
if [he] reports to work under the influence of alcohol").
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Invoking diversity jurisdiction, 28 U.S.C. § 1332(a),
Corrada sued Sea-Land in Puerto Rico's federal district court.
He charged that his firing was unjustified, that statements made
by Sea-Land's hierarchs regarding his discharge violated his
privacy rights, and that Sea-Land had defamed him. The case
ended when the district court granted Sea-Land's motion for
summary judgment. Corrada Betances v. Sea-Land Serv., Inc., No.
99-1671 (D.P.R. July 24, 2000) (unpublished). This appeal
ensued.
III
There is little point in attempting to reinvent a well-
fashioned wheel. Where, as here, a trial judge astutely takes
the measure of a case and hands down a convincing, well-reasoned
decision, "an appellate court should refrain from writing at
length to no other end than to hear its own words resonate."
Lawton v. State Mut. Life Assur. Co., 101 F.3d 218, 220 (1st
Cir. 1996); accord Cruz-Ramos v. P.R. Sun Oil Co., 202 F.3d 381,
383 (1st Cir. 2000); Ayala v. Union de Tronquistas de P.R.,
Local 901, 74 F.3d 344, 345 (1st Cir. 1996); Holders Capital
Corp. v. Cal. Union Ins. Co. (In re San Juan Dupont Plaza Hotel
Fire Litig.), 989 F.2d 36, 38 (1st Cir. 1993). Consequently,
with one exception (discussed infra), we affirm the judgment
below for substantially the reasons elucidated in Judge Pieras's
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thoughtful rescript. We add only a few comments about Corrada's
wrongful discharge claim, and then discuss the one aspect of the
case where we disagree with the district court's rationale. We
rely entirely on the trial court's rescript vis-à-vis Corrada's
privacy claims. And, inasmuch as Corrada's appellate brief
contains no developed argumentation in support of his defamation
claim, we deem that claim abandoned. United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
IV
Corrada complains bitterly that the lower court
impermissibly credited Sea-Land's version of the facts. But
Corrada himself neither volunteered an affidavit nor filed any
other materials of evidentiary quality to contradict Sea-Land's
documented account. A party who opposes a properly
substantiated motion for summary judgment but fails to muster
counter-affidavits or other evidentiary materials does so at his
peril. Kelly v. United States, 924 F.2d 355, 358 (1st Cir.
1991) (warning of the dangers of giving one's litigation
adversary a free hand in configuring the summary judgment
record).
To be sure, Corrada's attorney did file legal memoranda
in the district court suggesting, for example, that Sea-Land's
stated reliance on corporate policy was pretextual and that its
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real reasons for cashiering Corrada were spiteful. Such
filings, however, are manifestly insufficient to create genuine
issues of material fact (and, thus, to deflect the blade of the
summary judgment ax). We have held before, and today reaffirm,
that statements contained in a memorandum or lawyer's brief are
insufficient, for summary judgment purposes, to establish
material facts. See, e.g., Fragoso v. Lopez, 991 F.2d 878, 887
(1st Cir. 1993); Kelly, 924 F.2d at 357.
By the same token, Corrada does not profit, in the
circumstances of this case, from his filing of a so-called
"Counterstatement of Uncontested Material Facts." We explain
briefly.
The District of Puerto Rico has adopted a local rule
that requires a party who moves for summary judgment to submit,
in support of the motion, "a separate, short, and concise
statement of the material facts as to which the moving party
contends there is no genuine issue to be tried and the basis of
such contention as to each material fact, properly supported by
specific reference to the record." D.P.R.R. 311.12. Once Sea-
Land complied with this directive — as it did — the same rule
then obligated Corrada, as the opposing party, to proffer a
comparable statement limning "the material facts as to which it
is contended that there exists a genuine issue to be tried,
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properly supported by specific reference to the record." Id.
(emphasis supplied).
With regard to this particular section of the rule, we
have recently reiterated that the nonmovant's "failure to
present a statement of disputed facts, embroidered with specific
citations to the record, justifies the court's deeming the facts
presented in the movant's statement of undisputed facts
admitted." Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.
2000); accord Morales v. A.C. Orssleff's EFTF, ___ F.3d ___, ___
(1st Cir. 2001) [No. 00-1707, slip op. at 3]. These authorities
undermine Corrada's attempted reliance on his response to Sea-
Land's meticulous Rule 311.12 statement as a basis for this
appeal. That response was woefully deficient. Although Corrada
stalwartly refused to admit many of the facts assembled by Sea-
Land, he utterly failed to point to any record references, let
alone any admissible evidence, that might support a contrary
version.2
That ends this portion of our inquiry. Bombast and
bluster, wholly detached from verified facts of record, cannot
2
In all events, Corrada's counter-statement did not contest
the existence of Sea-Land's "no drinking on the job" policy, the
occurrence of his earlier suspension, or the fact that he
reported to work intoxicated on the day before Sea-Land fired
him. He apparently concedes that these facts are
incontrovertible.
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serve to blunt the force of a movant's statement of undisputed
facts. Thus, the district court acted appropriately in
crediting Sea-Land's statement of material facts not in dispute.
V
Corrada asserts that the district court should have
allowed him more time for pretrial discovery before ruling on
Sea-Land's dispositive motion. This assertion comes too late.
We will not belabor the obvious. Corrada did not file
a Rule 56(f) motion, nor did he bring to the district court's
attention in any equivalent manner the "denial of discovery"
plaint that he voices here. Those omissions defeat his
afterthought claim. If any principle is firmly established in
this circuit, it is that, in the absence of excusatory
circumstances — and none are apparent here — arguments not
seasonably raised in the district court cannot be raised for the
first time on appeal. Teamsters Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992); McCoy v.
Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991). That
principle pertains here.3
VI
3
In all events, Corrada had ample time within which to
conduct discovery. He started suit on June 16, 1999, and Sea-
Land did not move for summary judgment until nearly a year later
(May 31, 2000).
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Our last comment requires us to part company with the
lower court. Among his array of claims, Corrada asserted a
cause of action under 29 P.R. Laws Ann. §§ 185a-185m (Law 80).
That statute provides remediation for employees at will who are
discharged without good cause.
In this instance, the district court, having foreclosed
Corrada's other initiatives, declined to address his Law 80
claim on jurisdictional grounds. The court reasoned that it
lacked subject matter jurisdiction because this claim, standing
alone, failed to satisfy the amount in controversy requirement
($75,000) established as a prerequisite to federal diversity
jurisdiction.4 See 28 U.S.C. § 1332(a).
We review de novo a district court's determination that
it lacks subject matter jurisdiction. Barrett v. Lombardi, 239
F.3d 23, 30 (1st Cir. 2001). Despite our admiration for the
district court's adroit handling of the other issues in this
4Severance pay is the exclusive remedy afforded by Law 80.
See 29 P.R. Laws Ann. § 185a. The statute provides for varying
payments depending on years of service. Since Corrada worked
for Sea-Land for slightly over five years, he would have been
entitled to two months' wages as severance pay under Law 80 had
he prevailed. See id. Corrada's annual salary at the time of
his discharge was $39,529.34. Thus, his Law 80 claim, if
successful, would have yielded an award substantially below the
amount in controversy required as a precondition to federal
diversity jurisdiction. See 28 U.S.C. § 1332(a).
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case, we think that the court erred in concluding that subject
matter jurisdiction was wanting.
The critical time for determining the existence vel non
of the amount in controversy is the inception of the suit, i.e.,
the time of filing. See St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 289-90 (1938); Coventry Sewage Assocs. v.
Dworkin Realty Co., 71 F.3d 1, 6 (1st Cir. 1995). The amount
claimed at that time controls, so long as asserted in good
faith. St. Paul, 303 U.S. at 288; Mas v. Perry, 489 F.2d 1396,
1400 (5th Cir. 1974). Thus, a court can dismiss an action for
insufficiency of the amount in controversy only when, from the
face of the complaint, the court can conclude to a legal
certainty that the plaintiff is not entitled to recover the
threshold amount. Barrett, 239 F.3d at 30-31.
At the inception of this suit, the complaint contained
wrongful discharge, invasion of privacy, and defamation claims
(as well as the Law 80 claim). These causes of action had the
collective potential to reap a harvest well in excess of
$75,000. No more was exigible to satisfy the amount in
controversy requirement. See id. Moreover, once diversity
jurisdiction had attached, subsequent events (e.g., the revealed
impotency of Corrada's potentially more munificent claims) could
not work a divestiture. See St. Paul, 303 U.S. at 289-90.
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The district court's error, however, was altogether
harmless. Consequently, it neither necessitates vacation of the
judgment nor affects the outcome on appeal. No award is due
under Law 80 if an employee is dismissed for "good cause." 29
P.R. Laws Ann. § 185b.5 The law defines "good cause" to include,
inter alia, situations in which an employee is cashiered for
"indulg[ing] in a pattern of improper or disorderly conduct,"
id. § 185b(a), and those in which he or she is discharged for
repeatedly violating "reasonable rules and regulations
established for the operation of the [employer's business],
provided a written copy thereof has been opportunely furnished
to the employee." Id. § 185b(c). Both of these definitions
apply here. Thus, based on the uncontradicted facts, the record
in this case leaves no doubt that good cause (i.e., the serial
violations of the "no drinking on the job" policy) existed for
Sea-Land's decision to hand Corrada his walking papers.
We therefore affirm the judgment as to the Law 80 claim
on this alternate ground. See Houlton Citizens' Coalition v.
5
A minor discrepancy deserves comment. The title of article
185b refers to dismissal for "just cause," whereas the text
predominantly uses the term "good cause." As a general rule,
the language of the statutory text holds sway over the wording
of the title. Penn. Dep't of Corrs. v. Yeskey, 524 U.S. 206,
212 (1998). In this instance, however, the two terms appear to
be used synonymously. Accordingly, we treat them as
interchangeable.
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Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999) (explaining
that the court of appeals may affirm the entry of judgment on
any ground made manifest by the record).
VII
Since the record, carefully scrutinized, confirms that
(1) Sea-Land had an established personnel policy prohibiting
reporting to work in an intoxicated condition, and (2) Corrada,
having once been suspended for violating the policy, again
flouted it, Sea-Land justifiably fired him in response to the
second violation. That discharge was for good cause; and, for
the reasons stated by the district court, Sea-Land accomplished
it without infringing Corrada's privacy rights or defaming him.
We need go no further.
Affirmed.
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