Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2385
JOSUÉ A. COLÓN ORTIZ,
Plaintiff, Appellant,
v.
HECTOR R. ROSARIO, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Jorge Carazo-Quetglas, with whom Carazo-Quetglas Law Offices
was on brief, for appellant.
Eduardo Vera Ramírez, with whom Eileen Landrón Guardiola,
Landrón & Vera, LLP, Roberto Sánchez Ramos, Secretary of Justice,
Jo Ann Estades Boyer, Director, Federal Litigation Division,
Department of Justice, and Lilliam E. Mendoza Toro, were on brief,
for appellees.
May 27, 2005
Per Curiam. Plaintiff-appellant Josué Colón-Ortiz
challenges the district court's entry of summary judgment against
him on his claims that the Puerto Rico Electrical Power Company
(plaintiff's employer) and certain of its supervisors unlawfully
discriminated against him because of his political beliefs when,
approximately eight months after the November 2000 general
election, they reclassified him from an E-5 to an E-4 career
position (having concluded that his reclassification from a trust
position to an E-5 position in the weeks following the election was
itself unlawful). Judgment was rendered in favor of defendants
after the statement of uncontested facts submitted in connection
with their summary judgment motion was deemed admitted pursuant to
the Puerto Rico district court's local rules, see D.P.R. R. 311.12,
because plaintiff failed to oppose defendants' motion.
Plaintiff does not directly challenge the district
court's conclusion that defendants' statement of uncontested facts,
once admitted, warranted the entry of judgment for defendants. See
Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 4 (1st Cir. 2003)
(emphasizing that an unopposed motion for summary judgment should
only be granted if the movant's statement of uncontested facts and
other evidentiary facts of record show that the party is entitled
to summary judgment). Rather, he presents two peripheral
arguments. First, he contends that certain materials he submitted
well more than a month past the date on which his opposition was
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due -- materials submitted in connection with (1) a so-called
"Urgent Motion" in which he (arguably) sought, inter alia, to
reopen discovery and amend his complaint,1 and (2) a motion to
reconsider the summary judgment ruling -- were sufficient to
forestall the entry of judgment against him. Second, he argues
that the district court abused its discretion by failing to mention
his urgent motion in its memorandum and order and thereby declining
to act favorably on his requests to reopen discovery and to amend
the complaint.
Plaintiff's arguments are not convincing. The materials
that plaintiff sought to introduce in connection with his urgent
motion -- materials which tended to establish that certain of
plaintiff's witnesses were being harassed for supporting him -- had
little to no bearing on whether the employment actions that are the
subject of the complaint were themselves unlawful and/or motivated
by unlawful political discrimination. Thus, even if we were to
assume dubitante that the district court was obliged to consider
these late-filed materials in connection with its summary judgment
ruling, we would not upset the ruling. And, of course, the court
acted well within its discretion in declining to consider the
materials submitted in connection with the motion to reconsider the
1
Actually, these requests were so buried within plaintiff's
motion and so undeveloped that the district court would have acted
well within its discretion in regarding them as forfeit. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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summary judgment ruling -- especially since plaintiff failed to
explain why these materials were not timely made part of the
summary judgment record. Cf. U.S. Steel v. M. DeMatteo Constr.
Co., 315 F.3d 43, 51 (1st Cir. 2002) (discussing the requirements
for prevailing on a motion for relief from summary judgment under
Fed. R. Civ. P. 60(b)(2) for newly discovered evidence).
So too with the district court's implicit denials of the
requests to reopen discovery and/or to amend the complaint imbedded
within the urgent motion. Leaving aside plaintiff's failure to
account for why he did not timely oppose the summary judgment
motion, the materials submitted in connection with plaintiff's
urgent motion neither indicated that reopening discovery would lead
to evidence that might tip the summary judgment balance nor gave
indication that plaintiff himself would state a viable new claim
were he permitted to amend his complaint. Cf. Hernandez-Santiago
v. Ecolab, Inc., 397 F.3d 30, 34-35 (1st Cir. 1st Cir. 2005)
(motions to extend discovery period under Fed. R. Civ. P. 56(f)
must explain why the additional material sought is material);
Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)
(motions to amend after summary judgment motions are filed must be
justified by "substantial and convincing evidence").
The urgent motion, on its face, did not refer to a new
claim the plaintiff wished to add to his complaint and was most
reasonably read as seeking a postponement of the trial and remedies
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to protect witnesses. The motion thus assumed that the plaintiff
was entitled to a trial, but he was not, having failed to meet his
burden in opposition to summary judgment. It was not an abuse of
discretion for the trial judge to fail to allow amendment when the
motion itself did not seek to do so.
While a more explicit ruling on the urgent motion might
have been preferable, plaintiff has not come close to establishing
that its implicit denial, or the denial of his motion to
reconsider, constituted an abuse of discretion.
Affirmed.
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