United States Court of Appeals
For the First Circuit
No. 08-1753
REMEXCEL MANAGERIAL CONSULTANTS, INC.,
MARÍA S. KORTRIGHT,
Plaintiffs, Appellees,
v.
EDGARDO ARLEQUÍN,
MUNICIPALITY OF GUAYANILLA,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador Casellas, U.S. District Judge]
Before
Torruella, Tashima,* and Lipez, Circuit Judges.
Jorge Martínez-Luciano, with whom Johanna M. Emmanuelli
Huertas and Emil Rodríguez-Escudero were on brief, for appellants.
Pedro R. Vázquez III, for appellees.
October 1, 2009
*
Of the Ninth Circuit, sitting by designation.
LIPEZ, Circuit Judge. We consider for the second time
this political discrimination case, in which plaintiffs claim they
were denied payment for services performed on behalf of the
municipality of Guayanilla, Puerto Rico, in violation of the First
Amendment. In the original appeal, we vacated the district court's
dismissal of the case for failure to state a claim, holding that
the plaintiffs' complaint adequately pleaded the necessary elements
of a political discrimination action under 42 U.S.C. § 1983.
Ramírez v. Arlequín, 447 F.3d 19, 25 (1st Cir. 2006). Subsequent
to our decision, the district court reinstated the claims and
eventually entered a default judgment against defendants, the
municipality of Guayanilla, Puerto Rico ("the Municipality"), and
its mayor, Edgardo Arlequín, as a result of repeated discovery
violations.
In this appeal, defendants argue that: 1) the district
court abused its discretion in entering the default judgment, and
2) even in light of the default judgment, the plaintiffs cannot
prevail because their complaint does not make out a prima facie
case of political discrimination. For reasons we shall explain, we
conclude that there was no abuse of discretion in the entry of a
default judgment, and that the law of the case doctrine bars
defendants' attempt to reargue the adequacy of plaintiffs'
complaint. We therefore affirm.
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I.
A. Background
Although the background facts of this complaint are
described in our earlier decision in this case, id. at 20-22, we
will recount them here succinctly. Plaintiff Remexcel Managerial
Consultants ("Remexcel") is a company owned by Reinaldo Ramírez.
Remexcel entered into a contract with the former mayor of
Guayanilla, Ceferino Pacheco Guidicelli ("Mayor Pacheco"), a member
of the New Progressive Party ("NPP"), to perform accounting
services for the Municipality that would identify residents who
owed taxes. Id. at 20-21. Remexcel was to receive ten percent of
the money obtained as a result of its services. When Remexcel
identified a tax deficiency of $4,444,058.87 owed to the
Municipality by Stinnes Interoil, an oil supply company, the
Municipality informed Stinnes of that determination, and Stinnes
filed a lawsuit against the Municipality in Puerto Rico Superior
Court seeking to dispute any outstanding tax liability. See Veba
Oil Supply v. Municipality of Guyanilla, Civ. No. JCO 96-003
(Super. Ct. Ponce).
Plaintiff María S. Kortright is a lawyer who was hired by
Mayor Pacheco and the Municipality to defend that lawsuit under a
contingency arrangement which, like the agreement with Remexcel,
would pay her ten percent of the money collected as a result of her
work. Ramírez, 447 F.3d at 21. Working on the case until 2000,
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Kortright filed the summary judgment motions which led to a
favorable resolution of the case for the Municipality. Id. After
she performed this work, however, defendant Edgardo Arlequín
("Mayor Arlequín") took office, replacing Mayor Pacheco. Mayor
Arlequín is a member of the Popular Democratic Party ("PDP"). Id.
The complaint alleges that after taking office, Mayor
Arlequín began "a pattern and practice of discrimination by taking
adverse action against anyone associated with the prior New
Progressive Party administration at any level," and, as a result,
refused to continue the Municipality's professional association
with the plaintiffs. Kortright was replaced as counsel for the
Veba Oil case. According to the complaint, "[t]he new counsel did
nothing of record but enter his appearance before the court granted
summary judgment for the Municipality in the amount of $4.5
million, based on Kortright's work." Id. The new lawyer then
settled the suit for $1.8 million to be paid to the Municipality.
Id.
The plaintiffs brought suit under 42 U.S.C. § 1983,
alleging, inter alia, that their First Amendment associational
rights were violated because Mayor Arlequín and the Municipality
refused to pay them money they were rightfully owed solely because
of their association with Mayor Pacheco. Defendants moved in the
district court to dismiss the suit for failure to state a claim.
The district court granted the motion, concluding that, pursuant to
the Supreme Court's decisions in Elrod v. Burns, 427 U.S. 347
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(1976), and Branti v. Finkel, 445 U.S. 507 (1980), plaintiffs' jobs
were not entitled to protection from political discrimination
because they involved policymaking positions. Ramírez, 447 F.3d at
21-22.1
In the appeal brought by plaintiffs, we were "called upon
to decide whether a deliberate executive decision by a state actor,
based only on a partisan political change of administration, to
deprive independent contractors of a payment to which they are
legally entitled, violates the contractors' First Amendment
rights." Id. at 20. Ruling favorably for the plaintiffs, we
concluded that the Elrod/Branti doctrine's exemption of
policymakers from protection against political affiliation
discrimination does not apply "to someone who is neither a
government employee nor seeks a continuing relationship with the
government, but who merely asks to be paid in accordance with a
contract which that person has already performed." Id. at 23. We
wrote that, "[a]lthough we must always be concerned about
constitutionalizing traditional common law claims, we see no
theoretical bar to the First Amendment claim that is alleged here."
Id. We went on to say that "Remexcel and Kortright must plead that
they engaged in protected association, that they were entitled to
payment under their contracts, and that the Municipality denied the
1
The district court also determined that, unlike his company
Remexcel, plaintiff Ramírez lacked standing to bring suit. We
accepted the dismissal of Ramírez's claims because he did not
contest that ruling. Id. at 22.
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payment in retaliation for their exercise of associational rights.
These elements are adequately pleaded in the complaint." Id. at 25
(citation omitted). Hence we reversed the district court's
dismissal of Remexcel's and Kortright's First Amendment retaliation
claims.
B. The Renewed Proceedings in the District Court
1. Defendants' motion for judgment on the pleadings
In light of our decision, the district court re-opened
the case on June 22, 2006. Approximately two months later, on
August 30, 2006, the Municipality filed a motion for judgment on
the pleadings, arguing that "plaintiffs failed to state a theory of
political discrimination that, even with evidentiary support, would
constitute a violation of said parties' First Amendment rights."
See Fed. R. Civ. P. 12(c). Plaintiffs opposed the motion and asked
the court to impose sanctions pursuant to 28 U.S.C. § 1927, because
of defendants' unreasonable and vexatious multiplication of
proceedings.2
On December 1, 2006, the district court denied the
Municipality's motion for judgment on the pleadings, noting our
ruling in the first appeal that the complaint adequately pleaded a
First Amendment retaliation claim. It also granted plaintiffs'
2
28 U.S.C. § 1927 reads: "Any attorney . . . who so
multiplies the proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the excess
costs, expenses, and attorneys' fees reasonably incurred because of
such conduct."
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motion for sanctions because we had already decided that
defendants' arguments lacked merit.3 Quoting our decision in Cruz
v. Savage, 896 F.2d 626, 632 (1st Cir. 1990), it noted that "[t]his
is the type of multiplying of proceedings that § 1927 is designed
to avoid . . . . Counsel for the Municipality acted 'in disregard
of whether his conduct constitute[d] harassment . . . thus
displaying a serious and studied disregard for the orderly process
of justice.'" The court went on to say:
Filing a motion for judgment on the pleadings,
based in arguments already rejected by a court
of higher level is clearly vexatious conduct
that disregards the orderly process of justice
and must be sanctioned . . . . If the
Municipality, or its Counsel, disagreed with
the First Circuit's decision, it should have
filed a [petition for] certiorari before the
United States Supreme Court.4
The district court ordered the defendants to pay $2,000 to the
plaintiffs "in satisfaction of excess costs, expenses, and
attorneys' fees they reasonably incurred in re-litigating an issues
previously ruled on by a higher court."
3
The standard for evaluating a motion to dismiss is the same
as that for a motion for judgment on the pleadings. See, e.g.,
Citibank Global Markets, Inc., v. Rodríguez Santana, et al., 573
F.3d 17, 23 (1st Cir. 2009) ("to survive a motion to dismiss (or a
motion for judgment on the pleadings), the complaint must plead
facts that raise a right to relief above the speculative level.");
see also Charles Alan Wright and Arthur R. Miller, 5 Federal
Practice and Procedure § 1203 ("[T]he form and sufficiency of a
statement of a claim for relief under Rule 8(a)(2) may be tested by
a motion to dismiss for failure to state a claim upon which relief
can be granted, Rule 12(b)(6), [or] by a motion for judgment on the
pleadings, Rule 12(c) . . . .").
4
The defendants never filed such a petition.
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2. Discovery violations
On September 18, 2006 , October 11, 2006, and January 9,
2007, plaintiffs moved to compel the production of requested
discovery and for sanctions based on defendants' consistent failure
to provide discovery, as well as their alleged failures to appear
at scheduled depositions and to respond to a subpoena duces tecum.
Defendants opposed the motions, arguing, inter alia, that they had
not answered the discovery requests because they had objected to
them.
On April 19, 2007, the district court granted plaintiffs'
motions to compel and denied their motions for sanctions. Because
the response to plaintiffs' motions to compel depended on the
merits of defendants' objections to the requests for discovery, the
court painstakingly addressed each of defendants' objections.
Before compelling the production of any of the objected-to
materials, it explained why it disagreed with the defendants that
the requested information was either irrelevant or privileged.
In rejecting plaintiffs' request for sanctions, the court
explained that it did not fault the defendants for refusing to
produce the objected-to documents until the court had ruled on
those objections. It did, however, admonish the defendants for not
producing other documents to which it had not objected. It went on:
We refuse . . . to make an account here of
each document requested and produced, and
those which remain to be produced. Defendants
are to make such an exercise and comply with
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this order by the time provided below . . . .
Should counsel continue to have differences of
this sort, the Court will schedule such a
conference and will not hesitate to impose
sanctions upon the party engaging in
professional misconduct, or both parties if
the Court finds both responsible.
3. Default Judgment
Despite the district court's admonishment, defendants
failed to respond to the discovery requests on time. Instead,
approximately two weeks after the new deadline for the discovery
responses, defendants, according to plaintiffs, "delivered . . . a
hodgepodge of documents, unnumbered, unidentified, and without any
attempt to specify which document related to which request."
Plaintiffs then asked the court to impose a default judgment as a
sanction for defendants' failure to provide responsive discovery.
On December 6, 2007, the district court granted that motion.
Again, the court carefully explained its reasoning. It
said that the defendants' failure to respond adequately was "just
the cherry on top of the sundae," in light of defendants' many
other failures to abide by its orders. It described the troubled
history of the discovery process in this case and how it had
previously sternly warned defendants that it would issue sanctions
for failure to comply with its April 19, 2007 order. The court
also listed four separate orders it had issued during the course of
the litigation warning defendants that it would issue sanctions if
they failed to cooperate with discovery, and also cited its
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December 1, 2006 order imposing sanctions for defendants'
"vexatious" and "stubborn" conduct.
4. The "Motion to Set Aside Default"
A hearing on damages was set for March 24, 2008. On
Easter Sunday, the eve of trial, the Municipality moved in the
district court to set aside the default judgment, arguing that the
"recent" decision of Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), mandated that result. In fact, Twombly had been decided in
May 2007 -- ten months before the Municipality's motion "to set
aside default" and two months before the entry of default judgment.
In their motion, defendants once again argued that the complaint
did not state a claim for relief. This time, they added the new
twist that "under Twombly, plaintiffs' complaint would never have
survived defendants' Rule 12(b)(6) motion."
On March 24, 2008, the district court rejected the
"eleventh hour" motion as both "untimely" and "without merit." The
court characterized the motion as a "misnamed" motion for
reconsideration of the defendants' earlier motion for judgment on
the pleadings, because it only argued the sufficiency of the
pleadings and did not otherwise argue that the default was an abuse
of discretion. The court stated that:
[U]nder the more stringent Twombly standard,
Plaintiffs still plead a cause of action.
They argue that they were entitled to some
payments under a contract with the
Municipality and that the new Mayor, a member
of the PDP, refused to pay them only because
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of Plaintiffs' association with the former
Mayor, a member of the NPP.
Citing our earlier decision in this case, the court remarked that
"said discrimination is exactly what the First Amendment is
designed to protect, and therefore, [plaintiffs] have plead enough
to show plausible entitlement to relief under the First Amendment."
After the damages hearing, the court entered judgments of $180,000,
plus pre- and post-judgment interest, for both Remexcel and
Kortright. This appeal followed.
II.
Defendants challenge the imposition of the default
judgment as a sanction for their repeated discovery violations. We
review the entry of a default judgment for abuse of discretion.
Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 25-26 (1st Cir. 2006).
The party challenging this type of sanction "'bears a heavy burden
of demonstrating that the trial judge was clearly not justified in
entering an order of [default] under Rule 37.'" Id. at 25,
(modification in original) (quoting Spiller v. U.S.V. Labs, Inc.,
842 F.2d 535, 537 (1st Cir. 1988)).
The entry of a default judgment "provides a useful remedy
when a litigant is confronted by an obstructionist adversary and
plays a constructive role in maintaining the orderly and efficient
administration of justice." KPS & Assocs., Inc. v. Designs by FMC,
Inc., 318 F.3d 1, 13 (1st Cir. 2003) (quotation marks and citation
omitted). Nonetheless, it is a "drastic" sanction, Affanato v.
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Merrill Bros., 547 F.2d 138, 140 (1st Cir. 1977) (quotation marks
and citation omitted), that runs contrary to the goals of resolving
cases on the merits and avoiding "harsh or unfair results." KPS
& Assocs., 318 F.3d at 13 (quotation marks and citation omitted).
"Since default judgments implicate sharply conflicting policies .
. . the trial judge, who is usually the person most familiar with
the circumstances of the case and is in the best position to
evaluate the good faith and credibility of the parties, is
entrusted with the task of balancing these competing
considerations." Id. (quotation marks and citation omitted).
Defendants have but one argument in support of their
contention that the district court abused its discretion in
entering the default judgment -- namely, that the district court
abused its discretion in ordering the production of the documents
in the first place. "District courts exercise broad discretion to
manage discovery matters," and we review discovery orders for abuse
of discretion. Heidelberg Americas, Inc. v. Tokyo Kikai
Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003). "[W]e may
reverse a district court only upon a clear showing of manifest
injustice, that is, where the lower court's discovery order was
plainly wrong and resulted in substantial prejudice to the
aggrieved party." In re: Subpoena to Witzel, 531 F.3d 113, 117
(1st Cir. 2008) (quotation marks and citations omitted).
The court carefully categorized the interrogatories and
document requests by the type of information sought, and then
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explained why the information in each category was relevant. For
example, for one such category the court explained:
All of the questions and requests for
documents directed to establish the reasons
for the terminations or non renewal of
Plaintiffs' contract and the persons
responsible for or having knowledge of these
reasons are clearly relevant to determine
whether the termination of their contracts was
neutral or discriminatory in nature. Also,
all questions that might lead to information
about the circumstances surrounding the
termination or non renewal of Plaintiffs'
contract with the Municipality are relevant as
well.
For another category of requests, the court explained that
"questions related to changes in the Municipality's personnel after
Mayor Arlequín took over are relevant to Plaintiffs' allegations
that the Mayor engaged in a custom and/or practice of
discriminating against all employees and contractors hired or
engaged by the prior administration." In the end, almost every
objection was categorized in this manner and the court's rejection
of it explained. The scope of discovery is broad, and "to be
discoverable, information need only appear to be 'reasonably
calculated to lead to the discovery of admissible evidence.'"5
5
The district court recognized this principle, writing, for
example, that "[t]he production of said evidence might lead to
circumstantial evidence in support of Plaintiff's case." In
support of that conclusion, the court cited our decision in
Pueguero-Moronta v. Gabriel Santiago, 464 F.3d 29, 45 (1st Cir.
2006), for the proposition that "[a] plaintiff bringing a political
discrimination claim bears the burden of producing sufficient
direct or circumstantial evidence from which a jury reasonably may
infer that [his] constitutionally protected conduct -- in this
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Cusumano v. Microsoft Corp., 162 F.3d 708, 716 n.5 (1st Cir. 1998)
(quoting Fed. R. Civ. P. 26(b)(1)).
The district court was patient, careful, and fair in its
choice of sanctions. The court had issued four warnings over the
course of the litigation specifically directed at defendants'
failures to respond to discovery requests. It had previously
issued milder sanctions for defendants' "vexatious" behavior. In
April 2007, as noted, the court painstakingly addressed each of the
objected-to discovery requests and explained why they were
relevant, declining to issue sanctions at that time but again
warning defendants of the harsh possibilities for failure to
respond. Further, it reprimanded defendants at that time for
failing to produce documents to which it had not objected, and for
objecting to requests for documents that it was automatically
obligated to produce "without awaiting a discovery request"
pursuant to Federal Rule of Civil Procedure 26(a)(1). The court's
choice of sanctions as well as the sternness of its warnings
gradually escalated over the course of the litigation in response
to defendants' persistently troublesome conduct. Under these
circumstances, the district court did not abuse its discretion by
entering a default judgment in response to defendants' repeated
case, political affiliation . . . was a substantial or motivating
factor behind [his] dismissal." (Emphasis added, other
modifications in original.)
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failures to respond to discovery. Indeed, its handling of the
vexatious discovery conduct was exemplary.
III.
Defendants concede that "an entry of default prevents the
defendant from disputing the truth of well-pleaded facts in the
complaint pertaining to liability." Conetta v. Nat'l Hair Care
Ctrs., Inc., 236 F.3d 67, 75-76 (1st Cir. 2001) (citing Goldman,
Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc.,
982 F.2d 686, 693 (1st Cir. 1993)). They argue, however, that they
may still contest the sufficiency of the pleadings before them. It
is true that in the normal case after the entry of default a
"defendant may still contest a claim on the ground that the
complaint does not allege facts that add up to the elements of a
cause of action." Id. at 76; see also Gowen v. F/V Quality One,
244 F.3d 64, 67 n.2 (1st Cir. 2001) ("The default judgment is
conclusive as to facts but does not always defeat later legal
objections" such as failure to state a claim).
This, however, is not the normal case. We have
previously held that plaintiffs' claim does adequately plead the
elements of a cause of action. Ramírez, 447 F.3d 25 ("Remexcel
and Kortright must plead that they engaged in protected
association, that they were entitled to payment under their
contracts, and that the Municipality denied the payment in
retaliation for their exercise of associational rights. These
elements are adequately pleaded in the complaint.") (citing Baker
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v. Coxe, 230 F.3d 470, 475 (1st Cir. 2000)). In light of this
history, the law of the case doctrine poses an obstacle to our
reconsideration of the adequacy of the complaint.
The law of the case doctrine "posits that when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case."
Arizona v. California, 460 U.S. 605, 618 (1983). The doctrine has
two branches. The first, relied upon by the district court in
rejecting the motion for judgment on the pleadings, "'prevents
relitigation in the trial court of matters that were explicitly or
implicitly decided by an earlier appellate decision in the same
case.'" United States v. Wallace, 573 F.3d 82, 88 (1st Cir. 2009)
(quoting United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004)).
The second branch, which is implicated here, "binds successor
appellate panels in a second appeal in the same case unless
certain circumstances justify reconsideration." Negron-Alameda v.
Santiago, No. 08-2360, 2009 WL 2605717 at *3 (1st Cir. Aug. 26,
2009). This branch "contemplates that a legal decision made at
one stage of a criminal or civil proceeding should remain the law
of that case throughout the litigation, unless and until the
decision is modified or overruled by a higher court." Moran, 393
F.3d at 7. We have described the many "salutary policies" that
underlie the law of the case doctrine, including: "afford[ing]
litigants a high degree of certainty as to what claims are -- and
are not -- still open for adjudication"; "further[ing] the abiding
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interest shared by both litigants and the public in finality and
repose"; "promot[ing] efficiency"; and "increas[ing] confidence in
the adjudicatory process." Ellis v. United States, 313 F.3d 636,
647 (1st Cir. 2002).
There are, however, exceptions to the law of the case
doctrine's "presumption against reconsideration." Id. at 647-48.
Defendants argue that one such exception is applicable here
involving "a material change in controlling law." Id. at 648. In
Doe v. Anring, for example, we revisited an earlier ruling because
in the period between the first and second appeal we had, in a
different case, "reconsidered the interpretation of federal law
set forth in Doe v. Anrig I, and we concluded that it was
erroneous." 728 F.2d 30, 31 (1st Cir. 1984).
The defendants argue that we have a similar situation
here because, in the period between the first appeal and this one,
the Supreme Court clarified the standard for determining the
adequacy of pleadings. In Twombly, 550 U.S. 544, the Supreme
Court rejected an earlier description of the standard for stating
a claim, set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
and quoted in our first decision in this case. Ramirez, 447 F.3d
at 24-25. Twombly rejected Conley's statement that "a complaint
should not be dismissed for failure to state a claim unless it
appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
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Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). The
Twombly court explained that:
We could go on, but there is no need to pile
up further citations to show that Conley's "no
set of facts" language has been questioned,
criticized, and explained away long
enough. . . . The phrase is best forgotten as
an incomplete, negative gloss on an accepted
pleading standard: once a claim has been
stated adequately, it may be supported by
showing any set of facts consistent with the
allegations in the complaint.
Id. at 562-63. Twombly explained that a sufficient complaint must
contain "allegations plausibly suggesting (not merely consistent
with)" entitlement to relief. Id. at 557. It further explained:
[W]e do not require heightened fact pleading
of specifics, but only enough facts to state
a claim to relief that is plausible on its
face. Because the plaintiffs here have not
nudged their claims across the line from
conceivable to plausible, their complaint must
be dismissed.
Id. at 570.
We agree with the district court that even after
Twombly's clarification of the pleading standard, plaintiffs have
still pleaded a cause of action.6 Although our earlier opinion
parenthetically quoted Conley's "no set of facts" language,
Ramirez, 447 F.3d at 24-25, we did not base our decision in that
6
The district court admonished the defendants for raising
this argument so late in the game -- Twombly had been decided ten
months before the defendants moved for re-evaluation of the
pleadings in light of that case. Furthermore, Twombly had already
been decided when the district court entered the default judgment.
Nevertheless, because the district court reached the arguments on
the merits, we do as well.
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case on the remote possibility that plaintiffs would eventually
show some unknown set of facts to support their claim. Indeed, in
describing how Conley's "no set of facts" language has been
"questioned, criticized, and explained away long enough," the
Supreme Court listed our circuit as an example of the "judges and
commentators [who] have balked at taking the literal terms of the
Conley passage as a pleading standard." Twombly, 550 U.S. at 562.
It parenthetically quoted our opinion in O'Brien v. DiGrazia, 544
F.2d 543, 546 n.3 (1st Cir. 1976), where we stated that "when a
plaintiff under § 1983 supplies facts to support his claim, we do
not think that Conley imposes a duty on the courts to conjure up
unpleaded facts that might turn a frivolous claim of
unconstitutional official action into a substantial one."
Although we did not explain our earlier decision using Twombly's
language, we essentially concluded, in conformity with Twombly's
requirements, that plaintiffs had pleaded "enough facts to state
a claim to relief that is plausible on its face." Twombly, 550
U.S. at 570. Twombly does not, therefore, present a change in
intervening law that justifies the application of the exception to
the law of the case doctrine dependent on such a change. Ellis,
313 F.3d at 648.
The law of the case doctrine thus bars our
reconsideration of defendants' claim that the plaintiffs have not
pled a cognizable theory of retaliation under the First Amendment.
If defendants feel victimized by this outcome, they have only
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themselves to blame. Their stubborn refusal to participate in
discovery precluded the possibility of any factual development
that might have helped their case. Disobeying the orders of the
trial court has exacted a heavy price. Defendants have now
forfeited the opportunity to make their arguments on a more
developed record.
Affirmed.
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