Rivera-Torres v. Rey-Hernandez

             United States Court of Appeals
                        For the First Circuit


No. 06-2495

                     NELSON RIVERA-TORRES ET AL.,

                        Plaintiffs, Appellants,

                                  v.

                      CESÁR REY-HERNÁNDEZ ET AL.,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF PUERTO RICO

             [Hon. Gustavo A. Gelpí, U.S. District Judge]


                                Before

                         Howard, Circuit Judge,
                     Selya, Senior Circuit Judge,
                       and Dyk,** Circuit Judge.


     Francisco R. González Colón, with whom F.R. González Law
Office was on brief, for appellants.
     Luis Rodríguez Muñoz, with whom Roberto Sánchez Ramos,
Secretary of Justice, Salvador Antonetti Stutts, Solicitor General,
Eduardo Vera Ramírez, and Landrón & Vera, LLP were on brief, for
appellees.



                           September 6, 2007



     *
         Of the Federal Circuit, sitting by designation.
           SELYA, Senior Circuit Judge.           The Bard of Avon once

warned that "delays have dangerous ends." William Shakespeare, The

First Part of King Henry the Sixth act 3, sc. 2.             This case, in

which the plaintiffs procrastinated for the better part of three

years and cavalierly flouted the discovery deadlines announced by

the district court, bears out that admonition.           The tale follows.

           The pertinent facts are easily summarized.           The sixty-

four plaintiffs claim to be members of the New Progressive Party

(NPP).     In the turn-of-the-century general election, held in

November of 2000, the NPP lost control of Puerto Rico's central

government and its main rival, the Popular Democratic Party (PDP),

ascended to power.     A new administration took office in January of

2001.

           As part and parcel of this changing of the guard, Cesár

Rey-Hernández (Rey) became Secretary of the Puerto Rico Department

of Education (DOE).     He, in turn, appointed José Aldanondo-Rivera

(Aldanondo) to head up the DOE's adult education program (AEP) and

Santos Meléndez as the AEP's general supervisor.          All of these men

had ties to the PDP.

           Prior to the 2001-2002 school year, the plaintiffs were

employed   by   the   AEP   under   serial   one-year   contracts.   Those

contracts were not renewed for the 2001-2002 school year.             When

that happened, the plaintiffs sued Rey, Aldanondo, and Meléndez in

the federal district court.         Invoking 42 U.S.C. § 1983 and various


                                      -2-
provisions of Puerto Rico's civil code, they chiefly alleged

political discrimination.   See, e.g., Branti v. Finkel, 445 U.S.

507, 515-16 (1980); Elrod v. Burns, 427 U.S. 347, 373 (1976).

          From our coign of vantage, the travel of the case is more

important than the details of the plaintiffs' substantive claims.

Consequently, we do not dwell on their allegations but, rather,

limn the relevant procedural history.   This is the chronology:

                 1.   June 23, 2003.    The plaintiffs
          commenced their civil action.

                 2.   August 19, 2004.    The district
          court issued a case-management order that,
          among other things, required discovery to be
          completed by January 15, 2005.

                 3.   August 30, 2004.   The plaintiffs
          filed an amended complaint designed to add the
          nine regional directors of the AEP as
          additional defendants.    The district court
          issued summonses to be served on the regional
          directors by September 20, 2004.

                  4. February 21, 2005. The plaintiffs
          (who   had  not   yet  served  the  regional
          directors) moved for re-issuance of the now-
          expired summonses.

                 5. March 3, 2005. With the discovery
          deadline already in the rear-view mirror, the
          plaintiffs requested an additional period of
          between 30 and 50 days within which to conduct
          discovery.

                 6.   March 22, 2005.    The plaintiffs
          sent written depositions to the regional
          directors without subpoenaing them even though
          the regional directors had never been served
          with summonses or otherwise made parties to
          the case.



                               -3-
                  7. April 7, 2005. The district court
          refused to re-issue summonses for the regional
          directors (see Item No. 4, supra), calling the
          plaintiffs' failure to serve them in a timely
          manner "inexcusable" and "negligent."      The
          court also denied the plaintiffs' request to
          reopen the discovery period (see Item No. 5,
          supra).    In its order, the court left the
          parties free to conduct consensual discovery,
          but warned that it "will not entertain any
          disputes regarding . . . discovery" and that
          "[no]    deadlines  or  settings   [will]   be
          changed."

                 8.     July 29, 2005.       Citing the
          dismissal of a federal discrimination claim in
          another case involving the AEP,1 the district
          court gave the defendants until September 30,
          2005 (later extended until October 24, 2005)
          to file dispositive motions. The court gave
          the plaintiffs until November 30, 2005 to file
          oppositions to any such motions.

                 9. October 23, 2005. The defendants
          filed a motion for summary judgment.

                 10. October 25, 2005. The plaintiffs
          requested an additional period (until January
          20, 2006) within which to oppose the summary
          judgment motion.

                 11.   November 8, 2005.   The district
          court granted the plaintiffs their requested
          extension to file an opposition to the summary
          judgment motion (see Item No. 10, supra). The
          court   warned   explicitly  that   "no   more
          extensions will be allowed."

                 12. January 18, 2006. Notwithstanding
          the district court's express caveat (see Item
          No. 11, supra), the plaintiffs requested a
          further extension, until March 20, 2006, for


     1
      The decision that the district court cited was recently
affirmed on appeal. See Hatfield-Bermudez v. Aldanondo-Rivera, ___
F.3d ___ (1st Cir. 2007) [2007 WL 2231623]. It has no bearing on
the issues before us.

                               -4-
filing an opposition to the summary judgment
motion.

       13.   March 3, 2006.   The plaintiffs
subpoenaed documents held by Rey's successor
as Secretary of Education, Rafael Aragunde
(not a party to the action).     Among other
things, the subpoena sought a list of all
school directors and other employees of the
AEP during the 2000-2001 and 2001-2002
academic years. The plaintiffs never received
the list and the defendants deny that such a
list ever existed.

       14.   March 7, 2006.    The plaintiffs
filed yet another motion for an extension of
time to respond to the summary judgment
motion. This time, they invoked Fed. R. Civ.
P. 56(f) and professed a need for more
discovery in order to oppose summary judgment.
In an accompanying memorandum, their attorney
claimed that he needed to depose the regional
directors before composing such an opposition.

       15.   March 23, 2006. The defendants
requested that the court deem their summary
judgment motion unopposed.

       16.   April 5, 2006. The case was
transferred to the calendar of a newly
appointed district judge.

       17. May 31, 2006. The district court
denied as moot the plaintiffs' January 18,
2006 request for an extension of time within
which to oppose the summary judgment motion
(see Item No. 12, supra).

       18. August 14, 2006. Pursuant to the
filling of yet another judicial vacancy, the
case was again transferred to the calendar of
a newly-appointed district judge.

       19.   August 17, 2006.    The district
court denied the Rule 56(f) motion (see Item
No. 14, supra) and granted the defendants'
entreaty to deem the summary motion unopposed
(see Item No. 15, supra).

                     -5-
                     20.   August 23, 2006.   Discerning no
              genuine issue as to any material fact, the
              district court (Gelpí, J.) entered summary
              judgment in favor of the defendants.

              This timely appeal ensued.          In it, the plaintiffs assail

the district court's refusal to grant further extensions of the

discovery deadline; its decision to deem the summary judgment

motion unopposed; and its subsequent entry of summary judgment.

              For the most part, these claims of error are so weak as

not to warrant extended discussion.              The district court exhibited

great patience with the plaintiffs, warned them explicitly that

continued noncompliance would have consequences, and took final

action      only   when   the   plaintiffs      had    piled   delay   upon   delay.

"[C]ourts — like the deity — are more prone to help those who help

themselves," Williams v. Drake, 146 F.3d 44, 50 (1st Cir. 1998),

and   the     plaintiffs,       through   their       indolence,   forfeited     any

plausible claim to further indulgences.

              The one point that merits elaboration is the plaintiffs'

attempt to invoke Federal Rule of Civil Procedure 56(f).2                     We turn


      2
          The rule states:

              Should it appear from the affidavits of a
              party opposing the motion [for summary
              judgment] that the party cannot for reasons
              stated present by affidavit facts essential to
              justify the party's opposition, the court may
              refuse the application for judgment or may
              order a continuance to permit affidavits to be
              obtained or depositions to be taken or
              discovery to be had or may make such other
              order as is just.

                                          -6-
to the district court's ruling on that issue, mindful that a

district court's denial of a Rule 56(f) motion is reviewed on

appeal solely for abuse of discretion.                See, e.g., Mass. Sch. of

Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 44 (1st Cir.

1998).

            We begin with bedrock: Rule 56(f) serves a salutary

purpose within the summary judgment framework.                     When a party

confronted by a motion for summary judgment legitimately needs

additional    time   to   marshal   the       facts    necessary   to   mount    an

opposition,    the   rule   provides      a    useful    safety    valve.       See

Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198,

1203 (1st Cir. 1994).       Deployed appropriately, "[t]he rule . . .

safeguard[s] against judges swinging the summary judgment axe too

hastily."    Id.

            Be that as it may, the prophylaxis of Rule 56(f) is not

available merely for the asking.          A litigant who seeks to invoke

the rule must act with due diligence to show that his predicament

fits within its confines. To that end, the litigant must submit to

the trial court an affidavit or other authoritative document

showing (i) good cause for his inability to have discovered or

marshalled the necessary facts earlier in the proceedings; (ii) a

plausible basis for believing that additional facts probably exist

and can be retrieved within a reasonable time; and (iii) an

explanation of how those facts, if collected, will suffice to


                                    -7-
defeat the pending summary judgment motion.    See Vélez v. Awning

Windows, Inc., 375 F.3d 35, 40 (1st Cir. 2004); Paterson-Leitch Co.

v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir.

1998).

          We add a further caveat: Rule 56(f) is not designed to

give relief to those who sleep upon their rights. See Ayala-Gerena

v. Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996).

Consequently, a party seeking to derive the benefit of Rule 56(f)

must demonstrate due diligence both in conducting discovery before

the emergence of the summary judgment motion and in pursuing an

extension of time once the motion has surfaced.     See Resolution

Trust, 22 F.3d at 1203.

          Viewed through this prism, we do not think that the

district court abused its discretion in denying the plaintiffs'

Rule 56(f) motion.   In the first place, the plaintiffs' proffer

fell far short of the requisite showing.   In the second place, the

plaintiffs' conduct, both before and after the emergence of the

summary judgment motion, was characterized by the polar opposite of

due diligence.   We explain briefly.

          To begin, the plaintiffs' Rule 56(f) motion failed to

show good cause for their professed inability to conduct the

desired discovery at an earlier date.   The district court afforded

the parties a reasonable interval for pretrial discovery — they had




                                -8-
almost 18 months from the inception of the action — and, for aught

that appears, the plaintiffs simply frittered the time away.

            This is not to say that the plaintiffs are short on

excuses;    they   variously    blame      the   defendants'   uncooperative

attitude during discovery, the regional directors' evasiveness, the

transfer of the case from judge to judge, and what they perceive as

a gadarene rush to judgment in the summer of 2006.             But once past

the plaintiffs' rhetorical flourishes, the frailty of these excuses

becomes readily apparent.       None of them shows good cause for the

plaintiffs' inordinate delay.

            The claim that the defendants disrupted the discovery

process is belied by the plaintiffs' abject failure to use the

available means of discovery during the generous discovery period

allowed by the district court.          Indeed, the plaintiffs' claim of

disruption centers on something that occurred after the close of

formal discovery and during the subsequent period of consensual

discovery permitted by the district court (see Item No. 8, supra):

the defendants' refusal to hand over a list of AEP directors and

employees   for    the   2000-2001   and    2001-2002   school   years.   In

addition to an obvious lack of timeliness, this claim suffers from

no fewer than three major infirmities: the plaintiffs have not

shown that such a list existed, nor have they shown that they could

not have compiled such a list themselves from the copious documents

transmitted to them in the discovery process, nor have they shown


                                     -9-
that   they    seasonably       availed    themselves   of   any    of    the     usual

remedies for a failure of production during the discovery period.

See, e.g., Fed. R. Civ. P. 37.

              In all events, the list had no direct bearing on the

plaintiffs' ability to conduct the discovery sought in their Rule

56(f) motion: the depositions of the regional directors.                        Those

depositions could (and should) have been taken in a timely manner

regardless of the availability of the evanescent list.

              Much the same can be said about the plaint that the

regional directors' failure to answer the written depositions

addressed     to   them    handicapped       the   plaintiffs.           First,    the

plaintiffs' appellate brief conspicuously fails to justify why they

failed   to    submit     the    written    depositions      (and   subpoena        the

witnesses, if necessary) within the discovery period.                        Second,

notwithstanding the regional directors' lack of cooperation, the

plaintiffs inexplicably waited an entire year before asking the

court for additional discovery vis-à-vis the regional directors.

              This brings us to the plaintiffs' importuning that the

transfer of the case from judge to judge, together with Judge

Gelpí's prompt adjudication of outstanding motions once the case

was assigned to his calendar, unfairly surprised them.                             This

importuning rings hollow.           Parties have no vested right to have

their cases heard by a particular judge.                See United States v.

Colon-Munoz, 292 F.3d 18, 22 (1st Cir. 2002); Sinito v. United


                                          -10-
States, 750 F.2d 512, 515 (6th Cir. 1984).         And to deem the court's

adjudication "hasty" is ludicrous.              Nearly ten months passed

between the filing of the defendants' motion for summary judgment

and the granting of the defendants' request to deem that motion

unopposed. That hardly can be characterized as a rush to judgment.

Cf. D.P.R.R. 7(b) (allowing ten days within which to respond to

motions).

            To cinch matters, the district court explicitly warned

the plaintiffs in November of 2005 that no further extensions of

time would be permitted in connection with the pending summary

judgment motion.      See Item No. 11, supra.       Given this aposematic

statement,    the   plaintiffs   had    every    reason   to    believe   that

continued inattention to the summary judgment motion would prove

problematic.      Parties ought to expect that courts will say what

they mean and mean what they say.             See, e.g., Torres v. Puerto

Rico, 485 F.3d 5, 10 (1st Cir. 2007).            Seen in this light, the

district court's disposition of the motion in August of 2006 could

not have come as a surprise.

            At the expense of carting coal to Newcastle, we add that

the plaintiffs also failed to satisfy the second and third elements

of   the   Rule   56(f)   standard.     The   motion   papers    disclose   no

plausible basis for a belief that deposing the regional directors

would lead to material facts that might defeat summary judgment.

To the contrary, the motion is wholly conclusory; it merely states


                                      -11-
that "the information that could be obtained from the regional

directors' depositions [is] essential" to crafting an opposition to

the summary judgment motion.     Speculative conclusions, unanchored

in facts, are not sufficient to ground a Rule 56(f) motion.             See,

e.g., Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 4 (1st

Cir.   2004)   (explaining   that,    in    this   context,   a   plaintiff's

"optimistic surmise" carries no weight); Paterson-Leitch, 840 F.2d

at 989 (stating that "cryptic allusions [that] fail[] to set out

any basis for believing that some discoverable material facts . .

. exist" are "entirely insufficient to extract the balm of Rule

56(f)").

           The final straw is the plaintiffs' utter disregard for

deadlines throughout the course of this litigation. The plaintiffs

were afforded ample time within which to conduct discovery.             They

were given one extension and warned that no further extensions

would be forthcoming.    In all, a full twenty-eight months passed

between the commencement of the action and the filing of the

summary judgment motion.     We think it significant that, early on,

the plaintiffs recognized the potential importance of the regional

directors; after all, they attempted to amend their complaint to

add the regional directors as defendants on August 30, 2004 (see

Item No. 3, supra).     At that point in time, the discovery period

was still open and the summary judgment motion was more than a year

from being filed.    The plaintiffs nonetheless neglected to secure


                                     -12-
the regional directors' testimony during the time allotted for

pretrial discovery.

            Even after the defendants moved for summary judgment, the

plaintiffs dragged their feet: they lollygagged more than five

months before filing their Rule 56(f) motion and announcing their

professed need to depose the regional directors.       That was too

little and too late: Rule 56(f) is meant to minister to the

vigilant, not to those who sleep upon perceptible rights.

            On this record, we conclude without serious question that

the district court acted within the realm of its discretion in

denying the plaintiffs' Rule 56(f) motion.3   Relatedly, we conclude

that the court, faced with a summary judgment motion that had been

pending for nearly ten months without a substantive response, acted

within its discretion in deeming that motion unopposed. See Vélez,

375 F.3d at 41.

            That brings us to the merits of the motion for summary

judgment.   We have reviewed that motion and the supporting papers,

mindful that even an unopposed motion for summary judgment should

not be granted unless the record discloses that there is no genuine

issue as to any material fact and that the movant is entitled to


     3
      As an added justification for their failure to oppose the
motion for summary judgment in a timely manner, the plaintiffs
allude to their counsel's poor health. This allusion does not help
their cause: the attorney's "transient ischemic attack" reportedly
occurred on June 13, 2006 — five months after the opposition was
due and three months after the plaintiffs filed their (inadequate)
Rule 56(f) motion.

                                 -13-
judgment as a matter of law.     See id. at 42; Mendez v. Banco

Popular de P.R., 900 F.2d 4, 7-8 (1st Cir. 1990); see also Fed. R.

Civ. P. 56(e) (instructing that if the adverse party fails to

respond, "summary judgment, if appropriate, shall be entered")

(emphasis supplied). The instant motion passes that rigorous test.

            We need go no further.    The plaintiffs have made a

gallimaufry of other arguments, but all of them are either plainly

incorrect, insufficiently developed, or both. Accordingly, we hold

that the district court did not err in entering summary judgment in

favor of the defendants.



Affirmed.




                               -14-