Gonzalez Figueroa v. JC PENNEY PUERTO RICO

United States Court of Appeals
For the First Circuit

No. 08-1032

CARLOS GONZÁLEZ FIGUEROA ET AL.,

Plaintiffs, Appellants,

v.

J.C. PENNEY PUERTO RICO, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Selya and Leval,*
Circuit Judges.

Marcelle D. Martell Jovet, with whom Law Offices of Marcelle
D. Martell Jovet, PSC was on brief, for appellants.
Kenneth C. Suria, with whom William Estrella Law Offices, PSC
was on brief, for appellee.

June 11, 2009

*
Of the Second Circuit, sitting by designation.
 SELYA, Circuit Judge. This appeal requires us to

consider the interplay between the statute of limitations and the

maintenance of derivative tort claims brought by relatives of an

age discrimination plaintiff. The district court dismissed the

relatives' claims as time-barred, holding that the limitations

period had begun to run when the relatives learned of the principal

plaintiff's demotion and continued to run without interruption

despite the pendency of that plaintiff's discrimination claim

before the Equal Employment Opportunity Commission (EEOC).

González Figueroa v. J.C. Penney P.R., Inc. (González I), 247

F.R.D. 274, 281-82 (D.P.R. 2007). We affirm in substantial part

but reverse as to a plaintiff who has not yet attained the age of

majority.

I. BACKGROUND

Because this appeal follows the granting of a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), we recount

the facts alleged in the amended complaint and draw all plausible

inferences in favor of the appellants. See Warren Freedenfeld

Assocs., Inc. v. McTigue, 531 F.3d 38, 43 (1st Cir. 2008);

McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006).

In 1970, the defendant, J.C. Penney Puerto Rico, Inc.

(J.C. Penney), hired the principal plaintiff, Carlos González

Figueroa (González). Over the next thirty-five years, González

worked his way up the corporate ladder, receiving a series of

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promotions and pay increases. He ultimately rose to the position

of assistant store manager.

In June of 2005, J.C. Penney insisted that González

either retire or accept a demotion. González temporized over this

Hobson's choice and, on September 18, J.C. Penney unilaterally

demoted him. In his new position — loss prevention manager — he

absorbed a $25,000 per annum pay cut.

In roughly the same time frame, González applied for

promotions to open positions within the organization that offered

salaries comparable to what he had been earning. J.C. Penney

awarded each such position to a younger employee.1

González, who was then 50 years of age, concluded that

his demotion was part of a concerted corporate campaign to oust

older managers. On May 11, 2006, he filed an administrative

complaint with the EEOC charging that J.C. Penney had engaged in

unlawful age discrimination. On December 28, 2006, the EEOC issued

a right-to-sue letter. See 29 U.S.C. § 626(e).

Three months later González, his wife Elsa, and their

three children (Carlos, Karla Michelle, and Karla Marie) sued J.C.

1
The amended complaint alleges that "[a]t the same time" it
demoted González, J.C. Penney "opened positions similar in pay
grade" to his former job, but did not offer any of those positions
to him. Similarly, the charge that González filed with the EEOC
alleged that the discriminatory conduct began and ended on
September 18, 2005 (the date of his demotion). For ease in
exposition, we therefore refer to the September 18 demotion as
embodying the totality of the allegedly discriminatory conduct.

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Penney in Puerto Rico's federal district court. Their amended

complaint is the operative pleading for purposes of this appeal.2

The amended complaint alleges violations of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, and

certain Puerto Rico statutes. This appeal focuses on the

plaintiffs other than González himself (the relatives). Insofar as

the relatives are concerned, the gravamen of the action is their

assertion that the discriminatory demotion gives rise to a separate

but derivative cause of action in their favor under Article 1802 of

the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141.

Acting on the defendant's motion to dismiss, the district

court concluded that the relatives' Article 1802 claims were time-

barred. González I, 247 F.R.D. at 281-82. In reaching that

conclusion, the court ruled that the one-year statute of

limitations applicable to these claims began to run as soon as the

relatives had notice of J.C. Penney's allegedly discriminatory

treatment of González. Id. at 281. Because the limitations period

was not tolled as to other persons during González's exhaustion of

his administrative remedies, the relatives' claims were time-

barred. Id. at 282.

The district court later entered a partial judgment

2
In a ruling that is not contested on this appeal, the lower
court decided that the amended complaint relates back to the date
of the commencement of the action (March 27, 2007). See González
I, 247 F.R.D. at 281.

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against the relatives and certified that judgment as final under

Federal Rule of Civil Procedure 54(b). This interlocutory appeal

followed.

It soon came to light that the district court had

certified the partial judgment without making any findings. We

therefore remanded, albeit retaining appellate jurisdiction, so

that the district court could remedy this oversight. See González

Figueroa v. J.C. Penney P.R., Inc., No. 08-1032 (1st Cir. Jan. 18,

2008) (unpublished order). The district court responded promptly,

see González Figueroa v. J.C. Penney P.R., Inc., Civ. No. 07-1258,

2008 WL 203654, at *2 (D.P.R. Jan. 23, 2008), and the appeal

proceeded.

We pause at this point. Although Rule 54(b) allows the

entry of judgment on a subset of the claims asserted in a multi-

plaintiff, multi-claim action, "there is a long-settled and

prudential policy against the scattershot disposition of

litigation." Spiegel v. Trs. of Tufts Coll., 843 F.2d 38, 42 (1st

Cir. 1988). Thus, a district court should certify a judgment under

Rule 54(b) only after it has determined that (i) the ruling in

question is final and (ii) there is no persuasive reason for delay.

Id. at 42-43. We review the district court's finality

determination de novo and its finding that there is no just reason

to delay for abuse of discretion. See U.S. Gen., Inc. v. Albert,

792 F.2d 678, 681 (7th Cir. 1986).

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 In this instance, the finality of the disputed ruling is

not open to question. See, e.g., Acha v. Beame, 570 F.2d 57, 62

(2d Cir. 1978). The court's explanation of why there was no reason

for delay is more problematic, but we cannot say that the court

abused its discretion in making that finding. Consequently, we

proceed to the merits.3

II. ANALYSIS

Appellate review of an order granting a motion to dismiss

for failure to state a claim upon which relief can be granted is

plenary. Young v. Lepone, 305 F.3d 1, 8 (1st Cir. 2002). Where,

as here, the dismissal is grounded on a statute of limitations, we

will affirm only if the record, construed in the light most

flattering to the pleader, leaves no plausible basis for believing

that the claim may be timely. See Warren Freedenfeld Assocs., 531

F.3d at 44; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-

56 (2007).

As a general rule, we look to the pronouncements of a

state's highest court in order to discern the contours of that

3
Even though we accept the certification in this instance, we
caution that piecemeal appeals are disfavored and that, therefore,
Rule 54(b) should be employed with great circumspection. A
certifying court must weigh efficiency concerns, see, e.g.,
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980);
consider the various criteria delineated in our case law, see,
e.g., Spiegel, 843 F.2d at 43 & n.3; and articulate a cogent
rationale supporting certification, see, e.g., Quinn v. City of
Boston, 325 F.3d 18, 26 (1st Cir. 2003). A Rule 54(b)
certification should not be made available simply because a party
requests it.

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state's law. See Andrew Robinson Int'l, Inc. v. Hartford Fire Ins.

Co., 547 F.3d 48, 51 (1st Cir. 2008). In regard to law-

determination, Puerto Rico is the functional equivalent of a state.

See Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 11 (1st

Cir. 2008). Accordingly, an on-point decision of the Puerto Rico

Supreme Court normally will control.

Here, however, the Puerto Rico Supreme Court has not

spoken directly to the precise question that confronts us. Thus,

our task is to vaticinate how that court likely would decide the

issue. See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151

(1st Cir. 1996). In carrying out that task, our first step is to

consult pertinent statutory language and analogous decisions of the

state supreme court. Andrew Robinson Int'l, 547 F.3d at 51; Warren

v. United Parcel Serv., Inc., 518 F.3d 93, 98 (1st Cir. 2008).

The relatives ground their claims in Puerto Rico's

generic tort statute (Article 1802), which under certain

circumstances has been authoritatively interpreted to provide a

cause of action in favor of close kinfolk of a victim of unlawful

workplace discrimination. See Santini Rivera v. Serv Air, Inc.,

137 P.R. Dec. 1, 14 (1994); see also Maldonado Rodríguez v. Banco

Cent. Corp., 138 P.R. Dec. 268, 276 (1995). The limitations period

for actions brought pursuant to Article 1802 is one year. See P.R.

Laws Ann. tit. 31, § 5298(2). That period ordinarily begins to run

at the time that the aggrieved party knows (or should have known)

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of both his injury and the identity of the party who caused it.

Torres v. E.I. DuPont De Nemours & Co., 219 F.3d 13, 18 (1st Cir.

2000); Montañez v. Hosp. Metropolitano, 157 P.R. Dec. 96, 106

(2002).

In this case, the relatives allege that they have

suffered emotional distress and consequential damages as a result

of J.C. Penney's discriminatory treatment of González. It is

common ground that the relatives learned of the allegedly

discriminatory conduct at around the time of González's demotion.

Thus, it would seem logical to conclude that the one-year statute

of limitations on their claims began to run at that moment and

expired in September of 2006 (several months before they sued).

The relatives labor to cast doubt on this conclusion.

Their most loudly bruited contention is that the principal

plaintiff's successful prosecution of his discrimination claim is

an element of their derivative claims and, thus, the latter claims

will not accrue unless and until the principal plaintiff prevails.

To use an analogy, the relatives would have us treat their

derivative claims like claims for malicious prosecution, which do

not accrue until the aggrieved party, in a separate proceeding,

obtains a favorable termination of the criminal charge. See, e.g.,

Heck v. Humphrey, 512 U.S. 477, 489 (1994).

That is a false analogy. A civil suit for malicious

prosecution requires the favorable termination of an antecedent

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criminal proceeding. See id. at 484. To the contrary, the

relatives' claims do not mix civil and criminal determinations but,

rather, are wholly civil. The Puerto Rico Supreme Court has

expressly held that a derivative claim premised on underlying

discrimination requires proof only of the same three elements as

any other claim under Article 1802, namely: (i) a compensable

injury; (ii) a wrongful act on the defendant's part; and (iii) a

sufficiently tight causal nexus between the injury and the wrong.

Santini Rivera, 137 P.R. Dec. at 6, 11; see Maldonado Rodríguez,

138 P.R. Dec. at 276. It necessarily follows that the Puerto Rico

Supreme Court does not treat the principal plaintiff's success on

the merits as an element of a relative's derivative claim under

Article 1802.

The relatives counter-attack on several fronts. The

chief weapon that they wield is an intermediate appellate court

decision. See González Vázquez v. Quest Diag., Inc., Civ. No. K DP

2004-0460, 2007 WL 1578045, at *5 (P.R. Cir. Apr. 30, 2007).

As a theoretical matter, intermediate appellate decisions

may furnish helpful guidance as to the resolution of unsettled

questions of state law. Andrew Robinson Int'l, 547 F.3d at 51. At

first blush, that principle fits here; Puerto Rico's highest court

has not spoken directly to the question at hand. Nevertheless, the

principle is not one of universal application — and in this

instance, we find González Vázquez to be of little utility.

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 In the first place, the language from González Vázquez

upon which the relatives rely is dictum. Although the court stated

that a derivative claim accrues after the principal plaintiff has

succeeded on the merits, this statement had no effect on the

court's ruling; the court determined that the derivative claim was

timely regardless of the accrual date because it was filed within

one year of the occurrence of the allegedly discriminatory conduct,

see González Vázquez, 2007 WL 1578045, at *3.

In all events, the González Vázquez dictum contradicts

an earlier decision of a different panel of the same court (which

the González Vázquez panel neglects to cite). See Santos Cabrera

v. R.J. Reynolds Tobacco Co., Civ. No. DPE 2004-0943, 2005 WL

3720002, at *7-8 (P.R. Cir. Dec. 15, 2005). The latter case holds

squarely that an Article 1802 derivative discrimination claim

accrues on the date that the relative becomes aware of the

defendant's allegedly discriminatory conduct. Id. at *8. In the

course of its decision, the court explains that postponing the

accrual of a derivative discrimination claim to the date that the

principal plaintiff succeeds on his claim would be contrary to

prevailing procedural norms. Id.

We believe that the Santos Cabrera analysis hews more

closely than does the González Vázquez dictum to the knowledge-

based accrual rule established in Puerto Rico by statute and

binding precedent. See, e.g., P.R. Laws Ann. tit. 31, § 5298(2);

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Montañez, 157 P.R. Dec. at 106; Colón Prieto v. Geigel, 115 P.R.

Dec. 232, 245-47 (1984). We also believe that the González Vázquez

dictum is unsound as a matter of policy: if that dictum were

correct, it would prolong tremendously the life of such litigation,

as derivative claimants would be able to bring suit years after the

event (when the final appeal confirming judgment in favor of the

principal plaintiff had been exhausted). Moreover, such a rule

might require two separate trials in a large number of cases. For

these reasons, we regard the González Vázquez dictum as

unpersuasive.

The relatives' next attack derives from language used by

the Puerto Rico Supreme Court suggesting that a relative's right to

compensation is contingent upon the success of the principal

plaintiff's claim. See, e.g., Martínez Campos v. Banco de Ponce,

138 P.R. Dec. 366, 371 (1995); Maldonado Rodríguez, 138 P.R. Dec.

at 276. The relatives deduce from these authorities that the

principal plaintiff's successful prosecution of his claim must

occur before a derivative claim accrues. We do not agree.

Without exception, the Puerto Rico cases hawked by the

relatives involve claims that were filed simultaneously, in a

single proceeding, by the principal plaintiff and the derivative

plaintiffs. See, e.g., Martínez Campos, 138 P.R. Dec. at 367;

Maldonado Rodríguez, 138 P.R. Dec. at 270. In that configuration,

a relative's cause of action is "contingent" in the sense that,

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when and if the principal plaintiff's claim fails, so too does the

relative's derivative claim. See Maldonado Rodríguez, 138 P.R.

Dec. at 276; see also Martínez Campos, 138 P.R. Dec. at 371. This

makes perfect sense; in a joint suit, the failure of the principal

plaintiff to prove a discriminatory act necessarily estops the

relative from proving the "wrongful conduct" element of her

derivative action.

Federal courts in this circuit have charted a similar

course, dismissing relatives' simultaneously filed derivative

claims as an inevitable concomitant of the merits-based dismissal

of the principal plaintiff's discrimination claim. See, e.g.,

Cabán Hernández, 486 F.3d at 12-13; Marcano-Rivera v. Pueblo Int'l,

Inc., 232 F.3d 245, 258 n.7 (1st Cir. 2000); Baralt v. Nationwide

Mut. Ins. Co., 183 F. Supp. 2d 486, 487-89 (D.P.R. 2002); Domínguez

v. Eli Lilly & Co., 958 F. Supp. 721, 745 (D.P.R. 1997). These

decisions in no way suggest that the timing of the principal

plaintiff's success or failure affects the accrual date of other

plaintiffs' derivative claims under Article 1802.

In a variation on this theme, the relatives assert that

an individual may not institute a standalone action to recover on

a derivative discrimination claim. Instead, she must proceed

jointly with (or after) the principal plaintiff. Noting that an

Article 1802 action accrues only when the plaintiff can exercise

his right to sue, see, e.g., Vega Lozada v. J. Pérez & Compañía,

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135 P.R. Dec. 746, 754-55 (1994), the relatives posit that their

claims did not accrue until (at the earliest) the principal

plaintiff had filed suit.

This is anfractuous reasoning. For one thing, none of

the cases cited by the relatives alters the ordinary knowledge-

based accrual rule articulated in the Civil Code. See P.R. Laws

Ann. tit. 31, § 5298(2). Those cases merely exemplify the workings

of that rule in particular factual scenarios. Because there is no

dispute here as to when the relatives learned of their injury and

its author, these cases offer them no succor.

For another thing, the relatives have not identified any

Puerto Rico Supreme Court decision holding that relatives must file

their derivative claims simultaneously with (or after) the

principal plaintiff's filing of his claim.4 The intermediate

appellate court has suggested that the filing of a standalone claim

is a viable option, see Santos Cabrera, 2005 WL 3720002, at *8, and

we see no logical impediment to the commencement of such an

independent action.

After all, the Puerto Rico Supreme Court consistently has

referred to relatives' causes of action as "separate" or

"independent" from the principal plaintiff's claim. See, e.g.,

4
Although one district court has suggested this possibility,
see Baralt, 183 F. Supp. 2d at 488, that result is not compatible
with either relevant precedent or logic.

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Martínez Campos, 138 P.R. Dec. at 371; Maldonado Rodríguez, 138

P.R. Dec. at 276; Santini Rivera, 137 P.R. Dec. at 5-6. Moreover,

the three elements of a derivative discrimination claim under

Article 1802 — injury, wrongful conduct, and causation — are not

dependent upon the outcome of a parallel action but, rather, are

susceptible of proof in a freestanding action.

To be sure, that proof overlaps to a degree with the

proof that ordinarily would be adduced in the principal plaintiff's

suit; for example, each action would require proof of the

defendant's discriminatory conduct vis-à-vis the principal

plaintiff. But in order to prevail on a derivative claim, a

relative also must prove that she herself suffered an injury

(distinct from any injury endured by the principal plaintiff). And

as with any Article 1802 claim, the relative must show that her

injury was proximately caused by the defendant's wrongful conduct.

Especially given that a derivative discrimination claim

arises from a different font of liability (Article 1802) than the

principal claim and that the two types of claims require proof of

distinct elements, we hold that a relative may maintain an

independent action under Article 1802, separate and apart from any

action prosecuted by the principal plaintiff.5

5
This is not to say that relatives and their principal
cannot, if they so choose, join in a single simultaneously filed
suit. Nor do we overlook that when the principal and the relatives
sue independently, consolidation of the actions frequently will be
the option of choice.

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 This holding blunts the force of the relatives'

suggestion that applying the normal accrual rule would violate due

process because it would place derivative plaintiffs in the

untenable position of having to bring suit on their derivative

claims before they possibly could do so. Cf. Alicea v. Córdova,

117 P.R. Dec. 676, 695-98 (1986) (finding due process violation

because statute of limitations effectively required aggrieved

parties to sue before they knew of their injury). The fears upon

which that suggestion rests are imaginary because, as we have

explained, the relatives could have brought standalone claims at

any time within the one-year limitations period. They were not

obliged to await any particular action by the principal plaintiff,

much less a resolution of the principal plaintiff's claim.

At any rate, the relatives could have awaited the

principal plaintiff's filing of suit yet still have safeguarded

their rights by the simple expedient of making an extrajudicial

claim within the one-year limitations period. See P.R. Laws Ann.

tit. 31, § 5303; Santos Cabrera, 2005 WL 3720002, at *8. That

proffer would have informed J.C. Penney of the nature of their

grievance and their desired relief. See Secretario del Trabajo v.

Finetex Hosiery Co., 116 P.R. Dec. 823, 827 (1986). Such an

extrajudicial claim would have required no particular formality.

Rodríguez Narváez v. Nazario, 895 F.2d 38, 44 (1st Cir. 1990).

This device easily could have been used, had the relatives so

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elected, as a means of awaiting the principal plaintiff's

exhaustion of administrative remedies.

To recapitulate, a favorable resolution of the principal

plaintiff's discrimination claim is not an element of a relative's

derivative claim under Article 1802. That being so, the relatives'

claims in this case accrued at the time that they learned of

González's demotion in September of 2005. They could have either

sued independently on those claims at any time within the one-year

limitations period (regardless of whether or when the principal

plaintiff sued) or stopped the ticking of the clock by filing

extrajudicial claims. They did neither, and the limitations period

expired. Consequently, their claims are time-barred unless they

are entitled to the benefit of tolling. It is to that subject that

we now turn.

This appeal requires us to discuss two different forms of

tolling. To begin, Puerto Rico law contemplates tolling when an

action accrues during the minority of an individual plaintiff. See

P.R. Laws Ann. tit. 32, § 254(1). Here, the amended complaint

describes one of the derivative plaintiffs, Carlos Manuel González

Bermúdez (the principal plaintiff's son), as twelve years old. The

age of majority in Puerto Rico is twenty-one. See P.R. Laws Ann.

tit. 31, § 971. Thus, the statute of limitations on Carlos's

Article 1802 claim is tolled until he reaches that age. See, e.g.,

Rentas Santiago v. Autonomous Mun'y of Ponce, 453 F. Supp. 2d 387,

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392 (D.P.R. 2006). It follows that the district court erred in

dismissing Carlos's claim as untimely.

The other relatives are adults and, thus, are not

entitled to the benefit of age-based tolling. If tolling applies

to their behoof, it must be rooted in a different mechanism.

Although the relatives' brief is vague in this respect, the only

possibility appears to stem from the principal plaintiff's filing

of an administrative complaint with the EEOC.

Of course, González was required to employ certain

administrative procedures before proceeding with his ADEA claim.

See 29 U.S.C. §§ 626(d)(1), 633(b). But that filing served only to

enable González to perfect his ADEA claim, and to toll the time for

suing on his claim under Puerto Rico's anti-discrimination law.

See, e.g., Rodríguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d

52, 61 (1st Cir. 2005); Mercado-García v. Ponce Fed. Bank, 979 F.2d

890, 895-96 (1st Cir. 1992); see also P.R. Laws Ann. tit. 29, §

150; Matos Molero v. Roche Prods., Inc., 132 P.R. Dec. 470, 486

(1993). The relatives' claims are Article 1802 claims, not

discrimination claims as such. In other words, they lie beyond the

reach of this tolling effect. Thus, González's filing with the

EEOC did not toll the statute of limitations on the relatives'

Article 1802 claims. Sánchez Ramos v. P.R. Police Dep't, 392 F.

Supp. 2d 167, 181-82 (D.P.R. 2005); Cintrón v. Puerto Rico, 127

P.R. Dec. 582, 595-96 (1990); cf. Johnson v. Ry. Express Agency,

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Inc., 421 U.S. 454, 465-66 (1975) (holding that commencement of

EEOC proceedings for plaintiff's Title VII claim did not toll

statute of limitations applicable to plaintiff's counterpart claim

under 42 U.S.C. § 1981).

The short of it is that the relatives (other than the

minor) have advanced no legitimate reason to support tolling of the

limitations period on their derivative claims. Hence, those claims

are time-barred.

Finally, we deal with the possibility of certification —

a possibility raised sua sponte by our dissenting brother.

Certification of questions of local law from one court to another

is, by its very nature, a cumbersome and time-consuming process.

The use of that device stops a case in its tracks, multiplies the

work of the attorneys, and sharply increases the costs of

litigation. Not surprisingly, then, we have held with monotonous

regularity that certification is inappropriate when the course that

the state courts would take is reasonably clear. See, e.g., Díaz-

Ramos v. Hyundai Motor Co., 501 F.3d 12, 17 (1st Cir. 2007); Porter

v. Nutter, 913 F.2d 37, 41 n.4 (1st Cir. 1990); Bi-Rite Enters.,

Inc. v. Bruce Miner Co., 757 F.2d 440, 443 n.3 (1st Cir. 1985).

This is just such a case. Although the Puerto Rico

Supreme Court has not answered the disputed question in haec verba,

there is every reason to believe that it will do so in the way that

we articulate. The only tea leaf fairly suggesting that a

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derivative claim under Article 1802 does not accrue until there has

been a successful resolution of the principal plaintiff's

discrimination claim is dictum in a decision of an intermediate

appellate court (González Vázquez). That dictum is flatly

contradicted by the holding of the same court in a different case.

See Santos Cabrera, 2005 WL 3720002, at *8.

Equally as important, the rule proposed by the González

Vázquez dictum must be wrong; taken literally, it would mean that

the trials of the principal and derivative claims never could be

joined in a single proceeding because the former would need to be

tried to a conclusion before the latter could be tried. There is

no reason to think that the Puerto Rico Supreme Court would

subscribe to so inefficient an arrangement.6

III. CONCLUSION

We need go no further. We hold that the district court

correctly determined that the claims of the relatives, other than

the minor plaintiff Carlos Manuel González Bermúdez, were untimely

and, thus, appropriately dismissed those claims. We affirm that

6
The dissent expresses concern that our decision not to
certify the question denies the relatives "the proper application
of the law," post at 25 n.4 (Torruella, J., dissenting), because
this court rather than the Puerto Rico Supreme Court has decided
the question. This concern is misplaced for three reasons. First,
the relatives chose a federal forum even though they could have
sued in the local courts. Second, they have not asked us to
certify the question even though they could have done so. Third —
and most salient — we do not believe that there is any reasonable
doubt about the correct result.

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ruling, while at the same time reversing the court's erroneous

dismissal of the minor plaintiff's claim.

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. All parties

shall bear their own costs.

- Concurring/Dissenting Opinion Follows -

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 TORRUELLA, Circuit Judge (Dissenting in part and

Concurring in part). This appeal presents a nebulous issue of

Puerto Rico law, begat by conflicting local jurisprudence and by

the absence of a definitive resolution by Puerto Rico's highest

court. That issue pertains to the date of accrual under Puerto

Rico law for a relative tort claim under Article 1802 that is

"derivative of" and "contingent upon" a principal plaintiff's

discrimination claim. As "the existing case law does not provide

sufficient guidance to allow us reasonably to predict" how the

Puerto Rico Supreme Court would resolve this issue, In re Engage,

Inc., 544 F.3d 50, 57 (1st Cir. 2007), I am firmly convinced that

this appeal presents precisely the type of question that the

certification process was designed to address. See Muñiz-Oliveras

v. Stiefel Labs, Inc., 496 F.3d 29, 39-40 (1st Cir. 2007). Because

I conclude that its resolution should thus come from the Supreme

Court of Puerto Rico, I respectfully dissent.

Our intervention under the circumstances is not only

risky (and perhaps, even presumptuous) but also unwise and

impolitic, considering the procedures that are readily available to

resolve this conundrum. See P.R. Laws Ann. tit. 32, app. III, Rule

53.1(f); VanHaaren v. State Farm Mut. Auto Ins, Co., 989 F.2d 1, 3

(1st Cir. 1997) ("Absent controlling state court precedent, a

federal court sitting in diversity may certify a state law issue to

the state's highest court. . . ."). By following this avenue, a

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court can readily clarify uncertain issues of state law, such as we

have before us. Moreover, the certification process is precisely

fitted to this case because the issue before us involves nuances

and concepts peculiar to Puerto Rico's civil law system which are

foreign to common law courts.1 Thus, we should pause, take an

intellectual deep breath, and allow Puerto Rico's Supreme Court,

whose expertise on the subject of its own legal culture is

unquestionably superior to ours, to first provide an authoritative

answer on this important and complicated question.

1
See Rodríguez-Narváez v. Nazario, 895 F.2d 38, 43 (1st Cir.
1990) ("[T]he courts of Puerto Rico have consistently observed that
civil law tradition, and not common law, governs the rules
applicable to limitation periods and tolling provisions under
Puerto Rican law."); Guevara v. Dorsey Labs., Div. of Sandoz, Inc.,
845 F.2d 364, 366 (1st Cir. 1988) ("The Supreme Court of Puerto
Rico has made clear that the common law of the United States is not
controlling, when filling gaps in the civil law system." (citation
omitted)); Vega Lozada v. J. Pérez & Compañía., Inc., 135 P.R. Dec.
746, 755 (1994) (certified translation) (noting that Puerto Rico
has "adopted the liberal civil-law trend on the statute of
limitation of actions for damages"). For an example of the
different approaches compare, e.g., Normandin v. Levine, 621 A.2d
713, 716 (R.I. 1933) (although claim for loss of consortium is
"derivative in nature and inextricably linked to the injured
spouse's action," "each spouse maintains an entirely unique cause
of action under the law and the assertion of one spouse's right
within the statutory period of limitations will not excuse the
failure of the other spouse to assert within the statute of
limitations his or her own separate right." (internal citation
omitted)) with González Vázquez v. Quest Diagnostic Inc., Civ. No.
K DP 2004-0460, 2007 WL 1578045 (P.R. Cir. Apr. 30, 2007) (a family
member's contingent claim does not accrue and its limitation period
does not start to run until it is determined if there was
discrimination against the primary plaintiff as a matter of fact
and law).

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 Furthermore, the circumstances of this case present a

quintessential example of the conditions that render certification

proper under the law of this circuit. There is clearly an absence

of "controlling precedent" from the Puerto Rico Supreme Court on

this issue. See Engage, 544 F.3d at 53. In fact, the majority

opinion acknowledges that "the Puerto Rico Supreme Court has not

spoken directly to the precise question that confronts us."

(Maj. Op. at 7). It is true that "in the absence of controlling

precedent, certification would [nevertheless] be inappropriate

where state law is sufficiently clear to allow us to predict its

course." Engage, 544 F.3d at 53; see also Collazo-Santiago v.

Toyota Motor Corp., 149 F.3d 23, 25-26 (explaining that "[a]bsent

controlling state precedent, a federal court sitting in diversity

may certify a state law issue to the state's highest court, or

undertake its prediction when the course [the] state courts would

take is reasonably clear." (quotations omitted and emphasis

added)). However, this is hardly the case in which the course of

Puerto Rico law can reasonably be predicted, given that the only

cases precisely on point are two decisions from Puerto Rico's

intermediate appeals court whose ratio decidendi directly conflict

with one another, and which point to completely different outcomes.

Compare González Vázquez, at 52 (a family member's Article 1802

2
As no official translation of this Spanish language opinion
is available, all quotations are from and citations are to the
certified translation submitted by the parties.

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contingent claim does not accrue and its limitation period does not

start to run until it is "determined if there was a discrimination

[against the primary plaintiff] as a matter of fact and law.") with

Santos Cabrera v. R.J. Reynolds Tobacco Co., Civ. No. DPE 2004-

0943, 2005 WL 3720002, at *8 (P.R. Cir. Dec. 15, 2005) (a family

member's Article 1802 contingent claim accrues on the date the

relative becomes aware of the defendant's allegedly discriminatory

conduct against the primary plaintiff). In light of the squarely

conflicting authority, it is puzzling how the majority found

sufficient clarity to predict what course Puerto Rico's Supreme

Court would take if it were faced with this issue.3

In any event, if I were to undertake a prediction, I

would conclude that the Supreme Court would likely go on a

different course than that assumed by the majority in the present

appeal. This is because I find that the appeals court holding in

González Vázquez, the more recent of the two relevant appeals court

decisions, comports more closely with the continuum of binding

3
Other conditions we have deemed relevant to certification
are present in this case as well. This question is clearly
"determinative of the pending cause of action," Engage, 544 F.3d at
52, in that the date of accrual determines whether the relative
plaintiffs' contingent tort claims, filed more than one year after
the primary's plaintiff's demotion, are dismissed as time-barred or
permitted to continue. Moreover, this is not a case in which the
"policy arguments line up solely behind one solution," id. at 57,
given the conflicting interests in fairness, finality, judicial
economy and federalism involved. See also Muñiz-Olivari, 496 F.3d
at 39-40 (certifying novel Puerto Rico law question on the ground
that "questions of local policy, . . . are best addressed by the
Supreme Court of Puerto Rico in the first instance.").

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Puerto Rico Supreme Court decisions preceding it, regarding the

proper application of the statutes of limitations to contingent

causes of action. I am thus doubly persuaded that we should seek

that court's advice before embarking on what could very well be an

erroneous prediction of Puerto Rican law.4

The holding in González Vázquez can best be understood by

reading it within the context of the rest of the opinion. In that

case, the primary plaintiff was terminated from her position at

Quest in August 2002, after which time she exhausted administrative

procedures with the Commonwealth's Anti-Discrimination Unit, prior

to filing, on August 18, 2003, a judicial employment discrimination

claim under Law 100, which was accompanied by her daughter's

contingent claim under Article 1802. See González Vázquez,

4
"The problem, of course, is that when a federal court 'gets
it wrong,' the litigants are denied the proper application of the
law. Jessica Smith, Avoiding Prognostication & Promoting
Federalism: The Need for an Inter-Jurisdictional Certification
Procedure in North Carolina, 77 N.C. L. Rev. 2123, 2134 (1999).
The majority disputes the validity of this concern, in part,
because the parties chose a federal forum and did not request
certification. (Maj. Op. at 19 n.6). But in my view, a party's
entitlement to the "proper application of the law" remains intact
regardless of the forum he elects, and our discretion to certify,
in the interest of such "proper application" is not affected by a
party's failure to request certification. See Engage, 544 F.3d at
57 n.10 (noting that "this court maintains discretion to certify
questions . . . when a party fails to request certification in the
court below, or even sua sponte"). Moreover, an erroneous
application of the law has implications well beyond these parties,
in that, "until the erroneous decision is corrected, non-parties
[will] conform their behavior to an improper legal norm." Smith,
supra, at 2134. Thus, the reasons for certification extend beyond
the interests of the relative-plaintiffs in this case.

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certified translation at 1-2. Quest alleged that the daughter's

action, filed more than one year after her mother's termination,

had prescribed, but the Appeals Court disagreed. Id. at 2, 9. It

held that the statute of limitation with respect to the derivative

action under Article 1802, "start[ed] to count as of the moment in

which the action can be exercised, that is, as of the moment that

it is resolved as a matter of fact and of law that [her mother] was

discriminated [against]." Id. at 9 (emphasis added). Applying its

holding, the court found that the relative's derivative cause of

action under Article 1802 had not prescribed.5 Id.

5
The majority attempts to discount the González Vázquez
holding, that the relative's contingent Article 1802 action does
not "accrue" until discrimination against the primary (Law 100)
plaintiff has been established, as "dicta." We disagree. If
anything, the case presents alternative holdings. This is because
there was factual dispute as to the date of the mother's
termination. Thus, the court concluded that had the termination
taken place on August 16, 2002, as plaintiffs alleged, then given
how weekends and holidays are counted, the daughter's claim, filed
on August 18, 2003, within one-year of the termination for
prescription purposes, was not time-barred. Id. at 5. However,
acknowledging that Quest alleged the termination to have taken
place on August 15, 2002, rendering the filing of the complaint to
have taken place than one year from the date, the court continued
with its analysis to ultimately hold that even if the complaint had
not been filed within one year from the alleged acts of employment
discrimination, the daughter's contingent claims are nevertheless
not time-barred. Id. at 9. In so concluding, the court explicitly
held that the relative's Article 1802 claim accrued and the
prescription term did not start to run until the discrimination of
the primary plaintiff was established. In any event, as neither
González Vázquez nor Santa-Cabrera are decisions of the Puerto Rico
Supreme Court, whether dicta or not, they are both merely
persuasive authority. See Fortini v. Murphy, 257 F.3d 39, 49 (1st
Cir. 2009).

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 In support of its decision, the González Vázquez panel

relied on Santini Rivera v. Serv. Air, Inc., 137 P.R. Dec. 1, 14

(1994), the Puerto Rico Supreme Court decision creating the very

cause of action that is the subject of the present dispute. See

Santini Rivera, 137 P.R. Dec. at 14 (holding that "relatives of an

employee who has been a victim of an Act No. 100 discriminatory

treatment . . . have a cause of action under [Article] 1802 to be

compensated for the harm resulting from said discrimination."

(quoting official translation at 13)). In recognizing the

relatives' Art. 1802 action, the Supreme Court explicitly stated in

Santini that "[i]n said circumstances, the relatives will recover

damages once said discrimination [under Law 100] is established."

Id. (emphasis added & quoting official translation at 13). The

appeals court also relied on the Supreme Court's analysis of

Santini in Maldonado v. Banco Central Corp., 138 P.R. Dec. 268, 276

(1995), in which the Supreme Court indicated that the action of the

relatives is "separate and contingent" to that of the discriminated

employee.6 González Vázquez, at 7. It explained that the

6
This is in keeping with the consistently expressed view of
that court that the relative's cause of action is a "contingent"
cause of action, that is, that the discriminated employee's
relative has a cause of action under Article 1802 of the P.R. Civil
Code that is contingent on the employee establishing his/her cause
of action. See Maldonado, 138 P.R. Dec. at 276; Marcano-Rivera v.
Pueblo Int'l, Inc., 232 F.3d 245, 258 n.7 (1st Cir. 2000); Baralt
v. Nationwide Mut. Ins. Co., 183 F. Supp. 2d 486, 488 (D.P.R.
2002); see also Black's Law Dictionary 31 (6th ed. 1990) (defining
the term "contingent claim" as "one which has not accrued and which
is dependent on some future event that may never happen").

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relatives' action is "separate because it is not governed by the

provisions of Law 100, but of Art. 1802," and contingent "since if

the employee does not prevail, his/her consort . . . cannot claim

for a discrimination that was not proven." Id. (quoting Maldonado,

138 P.R. Dec. at 276).

Recognizing the relative's argument that her cause of

action is a "contingent" one, "which cannot be exercised until the

claim of Law 100 is adjudicated," the appeals court said:

Pursuant to what is provided in Art. 1868 of
the Civil Code, 31 L.P.R.A. sec. 5298, which
establishes the cognoscitive theory of damage,
the prescriptive period of an action for
damages commences to count when the aggrieved
knew of the damage. On the other hand, Art.
1869 of the Civil Code, 31 L.P.R.A. sec. 5299,
sustains that: "The time for the prescription
of all kinds of action, when there is no
special provision that provides otherwise,
will commence to count as of the day in which
they could have been exercised.

González Vázquez, at 8 (emphasis added) (quoting Santiago Rivera v.

Ríos Alonso, 156 P.R. Dec. 181, 188 (2002)). Relying on this

language, the appeals court noted that the true point at which a

cause of action accrues "is the date in which the aggrieved knew of

the damage; who was the author of the same; and also, since he/she

knows the necessary elements to be able to effectively exercise

his/her cause of action." Id.7 But the court continued, noting

7
This reasoning is also consistent with Vega Lozada, in
which the Supreme Court stated that in Puerto Rico an action
"accrues" when the aggrieved party knew of the harm and could
exercise his action. 135 P.R. Dec. at 754.

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that it could not lose sight of the perspective "that prescription

is not a rigid figure but it admits judicial adjustments, as

required by the particular circumstances of the cases and the

notion as to what is fair." Id. It then cited the Supreme Court

decision in Alicea v. Córdova for the proposition that "the

provisions regarding prescription that require that the plaintiffs

file their cause of action before they have a right to said action,

violate their right to due process." Id. (citing 117 P.R. Dec. 676

(1986)).

Relying on Maldonado, the appeals court reasoned that "in

order for [the relative] to be able to file her action for damages

. . . she has to wait for it to be determined if there was . . .

discrimination as a matter of fact and of law; because the relative

'cannot claim a discrimination that is not proven.'" Id. It

concluded that because the [relative's] actions "depends on the

establishment of the illegal act, Art. 1869 of the Code, as applied

in Santiago v. Ríos Alonso, requires that the term start to count

as of the moment in which the action can be exercised, that is, as

of the moment that it is resolved as a matter of fact and of law

that [the primary plaintiff] was discriminated." Id. at 9. It

thus concluded that the daughter's action had not prescribed. Id.

The application of González Vázquez to this case would mean that,

since the primary plaintiff's claim has not yet been adjudicated,

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the relative plaintiffs' contingent claims have not even accrued,

let alone prescribed.8

Although in my opinion, the holding in González Vázquez,

firmly grounded in binding Puerto Rico Supreme Court precedent,

could very well be dispositive of the appeal before us, in view of

the conflicting jurisprudence that exists among Puerto Rico's

8
The majority needlessly assumes that the González Vázquez
rule would mean that the principal and derivative claim could never
be joined in a single proceeding, as the former must be tried to a
conclusion before the latter accrues. (Maj. Op. at 19). However,
that assumption ignores the frequent practice of allowing
technically unaccrued contingent claims, such as third party
claims, to be accelerated and joined with the primary action:

A third-party claim is ordinarily proper even though the
claim is contingent. Indeed, a third-party complaint is
by its nature a contingent claim. Thus, a third-party
action may be brought even though the third party
defendant is only contingently liable . . . In other
words, although the right to recover from the third-party
defendant does not accrue until after judgment or
compromise and settlement, a third-party action against
him or her can be maintained.

59 Am. Jur. 2d Parties § 288 (2009) (citations omitted); see also
Lehman v. Revolution Portfolio LLC, 166 F.3d 389 (1st Cir. 1999)
(holding that impleading a third-party defendant on theories of
indemnification and contribution presented justiciable claims even
though the claims were contingent upon the defendant being found
liable to the plaintiff in the underlying suit); D'Onofrio Constr.
Co. v. Recon Co., 255 F.2d 904 (1st Cir. 1958) (same); Matter of M.
Frenville Co., Inc., 744 F.2d 332, 337 (3d Cir. 1984) (noting that
claim for indemnity does not arise "until the prime obligation to
pay has been established" but citing New York rule that "allows
third-party actions to be commenced in certain circumstances before
they are technically ripe, so that all parties may establish their
rights and liabilities in one action"); Connors v. Suburban Propane
Co., 916 F. Supp. 73 (D. N.H. 1996) ("[U]nder state contribution
statutes that condition the cause of action upon discharge of
common liability to plaintiff, [Fed. R. Civ. P.] 14 can be used to
accelerate the defendant's cause of action for contribution").

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appeals courts, I hesitate to modify my initial view favoring

certification to the Supreme Court of Puerto Rico. That

circumstance makes it singularly tactful that we refer the matter

to that court as the appropriate forum for resolving such

intramural disputes. It is also that court that should properly

deal with the policy considerations raised by the majority. Muñiz

Oliveras, 496 F.3d at 39-40 ("[Q]uestions of local policy . . . are

best addressed by the Supreme Court of Puerto Rico in the first

instance.").9

To conclude, it has been said that in diversity cases,

"the federal judge must often trade his judicial robes for the garb

of a prophet." Smith, supra, at 2133 n.30 (quotation marks

omitted). But in circumstances such as these, where our prophetic

powers are at a nadir due to the existence of directly conflicting

non-binding local precedent, where a wrong prediction may

needlessly extinguish the rights of a party, and where a mechanism

for finding out what the local court would actually do is readily

9
Though I would leave it to the Puerto Rico Supreme Court to
weigh policy considerations, I cannot fail to comment upon the
suggestion made by the majority, to the effect that the relatives
may bring so-called "standalone" claims prior to the establishment
of the principal discrimination. (Maj. Op. at 15). Were such a
practice to become requisite for litigants in this area of the law,
we could very well have the incongruous outcome of the relatives
recovering on their derivative claims notwithstanding the
discriminatee failing to do so in his/her principal suit. Can such
an absurd legal outcome be seriously countenanced? I think the
answer to this question is more self evident than the one that
should be certified to the Supreme Court of Puerto Rico in the
present case.

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available, I, unlike my colleagues, am reluctant to engage in

prophesy. Thus, I respectfully dissent from the majority's

affirmance of the district court's dismissal of the adult

relatives' claims and urge that this question be certified to the

Supreme Court of Puerto Rico.

I join the majority opinion to the extent that it

reverses the district court's dismissal of the minor relative's

claim as time-barred, as Puerto Rico law clearly tolls the statute

of limitations until a child reaches the age of majority. See P.R.

Laws Ann. tit. 32, § 254(a). In all other respects, for the

reasons herein stated, I respectfully dissent.

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