United States Court of Appeals
For the First Circuit
No. 13-1834
REDONDO CONSTRUCTION CORPORATION,
Plaintiff, Appellant,
v.
JOSÉ IZQUIERDO, in his official capacity as Secretary of the
Department of Transportation and Public Works; PUERTO RICO
HIGHWAY AND TRANSPORTATION AUTHORITY; PUERTO RICO PUBLIC
BUILDINGS AUTHORITY; THE GOVERNOR OF THE COMMONWEALTH OF PUERTO
RICO, in his official capacity; FERNANDO FAGUNDO; CONJUGAL
PARTNERSHIP FAGUNDO-DOE; JOSÉ LLUCH-GARCÍA; CONJUGAL PARTNERSHIP
LLUCH-DOE; CONJUGAL PARTNERSHIP IZQUIERDO-DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Yolanda Benítez de Alegría, with whom Luis Cotto-Román was on
brief, for appellant.
Raúl Castellanos-Malavé, with whom Development & Construction
Law Group, LLC was on brief, for appellee Puerto Rico Highway and
Transportation Authority.
Susana I. Peñagaricano-Brown, Assistant Solicitor General,
with whom Margarita L. Mercado Echegaray, Solicitor General, was on
brief, for appellees José Izquierdo, Fernando Fagundo, José Lluch-
García, and the Governor of Puerto Rico.
Luis F. del Valle-Emmanuelli for appellee Puerto Rico Public
Buildings Authority.
March 19, 2014
LYNCH, Chief Judge. Plaintiff Redondo Construction
Corporation has been in litigation against the defendants -- the
Puerto Rico Highway and Transportation Authority (PRHTA), the
Puerto Rico Public Buildings Authority (PBA), and several officials
at both agencies (the individual defendants) -- for over a decade.
Redondo alleges that the defendants were in breach of certain
settlement agreements with Redondo, that this caused Redondo's
bankruptcy, and that the defendants are liable in damages. The
district court granted the PRHTA's and the individual defendants'
motions for summary judgment on the grounds that the record
contained insufficient evidence to prove damages. See Redondo
Constr. Co. v. Izquierdo, 929 F. Supp. 2d 14, 24 (D.P.R. 2013). It
also dismissed Redondo's claims against the PBA sua sponte. See
id. We affirm the district court's entry of summary judgment as to
the PRHTA and the individual defendants but vacate the dismissal of
the claim against the PBA and remand for further proceedings.
I.
A. Guilty Plea and Initial Contract Cancellations
The events leading to this case began on April 15, 1999,
when Redondo entered into a plea agreement with federal
prosecutors. Under the agreement, Redondo pled guilty to aiding
and abetting the making of false statements to the U.S. Department
of Transportation and to Banco Santander de Puerto Rico in the
course of its work on a federal highway project. See 18 U.S.C.
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§§ 2, 1014, 1020. The next day, the PRHTA informed Redondo that,
in light of the guilty plea, it was revoking the bids it had
awarded Redondo before the plea and was suspending Redondo from
bidding on new contracts for 30 days, with an extension likely to
be announced in the future. In May 1999, the PBA did the same.
Redondo challenged both decisions, initiating two
administrative proceedings. The proceeding against the PBA ended
with a settlement agreement allowing Redondo to resume bidding for
PBA contracts on April 16, 2000. The proceeding against the PRHTA
ended with a settlement agreement allowing Redondo to resume
bidding for PRHTA contracts on December 11, 2000, subject to the
oversight of a monitoring service for approximately a year and a
half.
B. Enactment of Law 458
Redondo's eligibility to bid for Puerto Rico contracts
shortly came into question again, this time under a new Puerto Rico
statute. On December 29, 2000, Puerto Rico passed Law 458. See
P.R. Laws Ann. tit. 3, §§ 928-928i. Law 458 prohibits Puerto Rico
agencies from awarding contracts to any person or corporation
convicted of fraud, embezzlement, or other similar offenses
involving public funds, for a period of 20 years after a felony
conviction and 8 years after a misdemeanor. Id. §§ 928, 928b,
928d. Law 458 included a provision explaining that it "shall not
apply retroactively nor shall [it] . . . interfere with contracts
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in effect." Id. § 928h. The law was effective as of the date of
its passage.
As to the PBA, between April 16 and December 29, 2000,
Redondo had placed fourteen bids for PBA projects and had been
awarded one contract. After Law 458 became effective, the PBA
cancelled ten of Redondo's fourteen bids, as well as the contract
which it had already executed with Redondo. At the time, the PBA
stated that it lacked sufficient funds to proceed with the
projects.
As to the PRHTA, between December 11 and December 29,
2000, Redondo did not place any bids for PRHTA contracts. Shortly
after Law 458 became effective, however, on February 14, 2001, the
PRHTA informed Redondo that it was withdrawing from the settlement
it had reached with Redondo, citing Redondo's failure to comply
with a settlement term requiring it to deposit $25,000 into escrow
to fund the monitoring service. Later deposition evidence tended
to show that the PRHTA was motivated by the policy of Law 458
regardless of the Law's non-retroactivity provision. Redondo
deposited the funds into escrow. The PRHTA then sought to reopen
administrative proceedings against Redondo to determine the length
of Redondo's suspension. As described later, the PRHTA eventually
prevailed at the administrative level, and Redondo later sought
judicial review of the administrative decision in the Puerto Rico
courts.
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C. Procedural History
While the Puerto Rico administrative proceedings between
Redondo and the PRHTA were pending, in December 2001, Redondo filed
a complaint in federal court, alleging that the PRHTA, the PBA, and
the individual defendants had unlawfully applied Law 458 to
Redondo, putting the agencies in breach of their respective
settlement agreements. Redondo's complaint alleged that the
application of Law 458 violated various provisions of the U.S.
Constitution, including its Due Process and Ex Post Facto Clauses.
The complaint also stated supplemental claims under Puerto Rico law
for damages arising out of the alleged breach of contract. Shortly
after filing the complaint, Redondo filed for bankruptcy.
The defendants in the federal action filed a motion to
dismiss. In response, in October 2002, the district court held
that Redondo had failed to state a federal claim with respect to
the Ex Post Facto, Double Jeopardy, and Due Process clauses. See
Redondo Constr. Corp. v. Izquierdo (Redondo I), No. 01-2690, slip
op. at 6-23 (D.P.R. Oct. 30, 2002). In reaching that conclusion,
the district court explicitly considered Redondo's argument that
Law 458 "runs afoul of the presumption against retroactivity
inherent in the common law tradition." Id. at 27. The district
court explained that although the law takes into account past
behavior in the form of past convictions, it operates only
prospectively: "In essence, no bid or public contract after
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December 2000 shall be awarded to anyone convicted of the crimes
listed in the debarment statute." Id. at 23.
While providing that construction of the statute, the
district court did not dismiss the case outright. Instead, it held
that some of Redondo's claims could be "re-characterized" as a
Contracts Clause challenge, which could survive the motion to
dismiss. Id. Thus, the remaining claims after Redondo I were the
Contracts Clause claim and the supplemental claims under Puerto
Rico law.
Following the ruling on the motion to dismiss, the
federal proceedings were stayed on the PRHTA's motion until the
Puerto Rico administrative proceedings concluded.
Redondo's administrative hearing occurred in 2003. The
hearing examiner concluded that the PRHTA could not withdraw from
the settlement based on Redondo's failure to place the funds into
escrow promptly, concluding that this failure was not a material
breach of the settlement agreement. The Secretary of the
Department of Transportation and Public Works initially adopted the
examiner's report but, on the PRHTA's motion, later reversed his
decision and ruled in favor of the PRHTA in October 2004. Redondo
sought judicial review of the agency decision in the Puerto Rico
Court of Appeals. On May 31, 2005, the Puerto Rico Court of
Appeals ruled that, even if Redondo was in breach of the settlement
agreement, the breach was not sufficient to excuse the PRHTA from
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its obligations. The court held that the PRHTA had to comply with
the settlement agreement and ordered specific performance. See
App. 863 (certified translation of Redondo Constr. Corp. v. P.R.
Hwy. & Transp. Auth. (Redondo II), No. KLRA0400982, 2005 WL 1475931
(P.R. Cir. May 31, 2005)). The Puerto Rico Supreme Court denied
the PRHTA's petition for certiorari and its two motions for
reconsideration. The Puerto Rico Court of Appeals did not discuss
the impact of Law 458, which was not briefed or argued before it.
The federal proceedings resumed after Redondo II, but no
significant action occurred for over a year and a half as the case
was transferred to three successive judges. Eventually, the
district court set a deadline of April 30, 2007 for all dispositive
motions. On that date, the PRHTA and the PBA each moved for
summary judgment on the Contracts Clause claim and argued that,
after summary judgment was granted on that claim, the district
court should decline to exercise supplemental jurisdiction over the
remaining Puerto Rico law claims. Over the next few months,
several other pretrial motions were filed, and trial was set for
February 11, 2008.
On February 7, 2008, about nine months after the summary
judgment motions were filed and just four days before the scheduled
trial date, the district court granted summary judgment in favor of
the defendants and dismissed the supplemental Puerto Rico law
claims without prejudice in accordance with the defendants'
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motions. Redondo Constr. Corp. v. Izquierdo (Redondo III), 550 F.
Supp. 2d 257, 268 (D.P.R. 2008).
Redondo appealed. On appeal, this court upheld the
district court's ruling on the Contracts Clause claim but reversed
its decision to dismiss the supplemental claims. Redondo Constr.
Corp. v. Izquierdo (Redondo IV), 662 F.3d 42 (1st Cir. 2011). We
reasoned that considerations of equity demanded that the court
retain jurisdiction over the supplemental claims because the
parties had dedicated substantial resources to the case and the
summary judgment decision had come just four days before the
scheduled trial date. Id. at 48-50. In doing so, we observed that
the Contracts Clause claim failed in part because "[n]either
Authority has asserted as an affirmative defense that it is excused
by Law 458 . . . from compensating Redondo in damages if Redondo
establishes a breach of contract," meaning that Law 458 did not
impermissibly extinguish Redondo's remedies for breach of contract.
Id. at 48.
Our holding meant that the only remaining claims in the
case were Redondo's breach of contract claims against the various
defendants under Puerto Rico law. See id. at 50. We further noted
that the Puerto Rico courts had already resolved the question of
whether the PRHTA was in breach, meaning that the only remaining
issue as against the PRHTA on remand was "whether Redondo was
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entitled to damages for the Highway Authority's breach, and if so,
how much." Id. at 50.
On remand, the district court invited additional briefing
on the remaining issues. The individual defendants filed a motion
for judgment on the pleadings, which was denied. Later, the PRHTA
and the individual defendants, but not the PBA, moved for summary
judgment. On May 28, 2013, the district court granted the PRHTA's
and individual defendants' motions for summary judgment. See
Redondo Constr. Co. v. Izquierdo (Redondo V), 929 F. Supp. 2d 14,
24 (D.P.R. 2013). It went on to dismiss the entire case, including
the claims against the PBA, sua sponte. See id. The district
court reasoned that, after our decision in Redondo IV, the only
remaining issue was whether Redondo was entitled to damages and, if
so, what amount. It then surveyed the pleadings, observing that
none included any precise statement of damages, or even of the
general nature of damages beyond broad statements such as
"financial collapse." Id. at 18. It concluded that the only
record evidence on this point was a pair of expert reports (one
from 2010 and one from 2007) from Redondo's expert, CPA Rafael
Perez Villarini, and Villarini's related deposition testimony. Id.
at 19.
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Turning to the evidence, the court excluded the 2010
expert report as inadmissible hearsay because it was unsworn.1 Id.
It then examined the expert's deposition testimony, referring to
the two reports where necessary to illuminate the testimony. After
establishing the framework of the Daubert inquiry, see Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993), the district
court determined that Villarini's testimony was "unreliable"
because it depended on the faulty assumption that Redondo could
have bid for contracts from the time its two debarment periods
ended, in April and December 2000, through the present. See
Redondo V, 929 F. Supp. 2d at 20-21. That was because Law 458
barred Redondo from bidding on contracts after December 2000. The
district court explained that the law of the case established that
point. Id. at 21-22. The court went on to reject Redondo's
counterargument that Redondo IV had required that Law 458 not apply
retroactively, distinguishing between Redondo's future ability to
pursue bids after December 29, 2000, which the law validly
extinguished, and its remedy for any breach of the settlement
agreement, which the law did not and could not affect under Redondo
IV. See id. at 22. There was no evidence of damages segregated
out for the period before December 29, 2000 as to the PRHTA.
Because the expert testimony was unreliable, the court reasoned,
1
The district court did not mention whether the 2007 expert
report was likewise excluded.
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Redondo could point to no evidence of damages against the PRHTA,
meaning that it had failed to make out a necessary element of its
case and could not survive summary judgment. Id. at 23.
The district court concluded by observing that the only
claims against the individual defendants were for damages under the
same theory, which meant that summary judgment was also proper
there because there was likewise no proof of damages. See id. at
23-24.
Finally, acting sua sponte, the court "dismissed" the
case "with prejudice," thereby terminating the claim against the
PBA even though the PBA had not moved for summary judgment. See
id. at 24. Redondo appeals.
II.
We review the district court's grant of summary judgment
de novo. See Bisbano v. Strine Printing Co., 737 F.3d 104, 107
(1st Cir. 2013). We first examine whether the law of the case
places any limits on Redondo's breach of contract claim, then turn
to whether Redondo has presented evidence sufficient to carry a
properly limited claim through summary judgment.
A.
The law of the case doctrine establishes 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."
United States v. Matthews, 643 F.3d 9, 12 (1st Cir. 2011) (quoting
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Arizona v. California, 460 U.S. 605, 618 (1983)) (internal
quotation mark omitted). "[A] legal decision made at one stage of
a civil or criminal case, unchallenged in a subsequent appeal
despite the existence of ample opportunity to do so, becomes the
law of the case for future stages of the same litigation." Id.
(quoting United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993))
(internal quotation marks omitted).
In Redondo I, the district court considered Redondo's
claim that Law 458 had an improper retroactive effect. In doing
so, it gave a statement of the law's construction, explaining:
[Law 458] takes account of past behavior in
order to institute civil debarment
proceedings. The statute, however, does not
operate to regulate past behavior but future
behavior. In essence, no bid or public
contract after December 2000 shall be awarded
to anyone convicted of the crimes listed in
the debarment statute. Therefore, the statute
cannot be said to apply retroactively because
it takes into account past admissions of
guilt.
Redondo I, slip op. at 27 (emphasis added). Under this
construction, Redondo would not be eligible to earn public
contracts after December 2000.2
2
This construction was supported by other statements in
Redondo I. For example, the court also explained that, under Law
458, Puerto Rico "simply refuses to do business with" Redondo, and
that this refusal was not improper. Redondo I, slip op. at 23.
Similarly, in allowing a Contracts Clause claim to proceed, the
district court limited its discussion to a provision of Law 458
that called for the "automatic rescission of all contracts in
effect," id.; it did not discuss the possibility of a Contracts
Clause claim with respect to the failure to award future contracts.
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This statement in Redondo I is a legal decision governing
the application of Law 458. Redondo did not challenge it on appeal
despite an ample opportunity to do so. Consequently, the district
court's 2002 interpretation of Law 458 in Redondo I is law of the
case. Redondo cannot now challenge the conclusion that Law 458
validly prevented it from bidding for public contracts after
December 29, 2000. Nor can it argue that Law 458 did not apply to
it at all; its entire federal case was premised on the notion that
Law 458 did apply.
Redondo argues that even if Redondo I established this
principle, it is no longer law of the case because of intervening
decisions in Redondo II and Redondo IV. In Redondo II, plaintiff
observes, the Puerto Rico Court of Appeals ordered specific
performance, more than four years after Law 458 took effect. See
Redondo II, App. 900. Redondo argues that this order implicitly
assumes that Law 458 does not apply to it, since otherwise specific
performance would be impossible. It also argues that legal
impossibility is an affirmative defense that the PRHTA had to, but
did not, raise.
Redondo's argument fails to acknowledge that the impact
of Law 458 was not before the court in Redondo II. Neither party
discussed Law 458 in the briefs, and the court did not mention the
law even a single time. Because the Puerto Rico Court of Appeals
did not consider the effect of Law 458 at all, we do not read its
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order of specific performance as an implicit endorsement of
Redondo's position. Likewise, we do not consider the PRHTA's
failure to brief the issue of Law 458 before the Puerto Rico Court
of Appeals to waive any argument regarding the law's effect,
because the issue of whether specific performance was possible did
not arise until the court issued its opinion ordering specific
performance.3
Redondo goes on to argue that our opinion in Redondo IV
resolves the law of the case issue in its favor. It argues that
our Contracts Clause holding depended on an "understanding" that
Redondo "had an available remedy in damages." This argument is
correct on its own terms; we did explain that the fact that Redondo
still had a remedy in damages meant there was no Contracts Clause
violation. See Redondo IV, 662 F.3d at 48 ("If a state breaches a
contract but does not impair the counterparty's right to recover
damages for the breach, the state has not impaired the obligation
of the contract."). But that conclusion does not lead as far as
Redondo believes. We held only that Law 458 was not available as
an affirmative defense to excuse the defendants "from compensating
Redondo in damages if Redondo establishes a breach of contract."
Id. We did not call into question the district court's prior
3
Additionally, Redondo has not filed suit to compel the
enforcement of the specific performance order from Redondo II, so
the PRHTA still, nine years after Redondo II, has had no need to
raise Law 458 as an affirmative defense.
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decision in Redondo I that Law 458 validly barred Redondo from
bidding after December 2000. Nor did we hold, either expressly or
implicitly, that the agencies had waived the use of Law 458 as an
affirmative defense against any challenge to their decisions
barring Redondo from bidding after December 2000.4
Because neither the Puerto Rico court's decision in
Redondo II nor our decision in Redondo IV called Redondo I's
construction of Law 458 into question, that construction still
governs here. Redondo's damages on its breach of contract claims
cannot be premised on the proposition that, absent any breach by
the PRHTA, Redondo would have had an unfettered right to bid on and
win PRHTA contracts after December 29, 2000.
B.
Because Redondo bears the burden of proof, it must point
to affirmative, admissible evidence supporting its claim for
damages to survive the PRHTA's and the individual defendants'
motions for summary judgment. See FDIC v. Elder Care Servs., Inc.,
82 F.3d 524, 526 (1st Cir. 1996); Garside v. Osco Drug, Inc., 895
F.2d 46, 49 (1st Cir. 1990). We review the district court's
exclusion of evidence on Daubert grounds for abuse of discretion.
See Smith v. Jenkins, 732 F.3d 51, 64 (1st Cir. 2013).
4
Redondo also offers arguments based on the doctrines of res
judicata and judicial estoppel. These arguments fail for the same
reasons detailed above.
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The only record evidence regarding damages caused by the
PRHTA and the individual defendants was the deposition testimony of
CPA Villarini and his two expert reports.5 Even assuming the
reports were admissible,6 this evidence was properly excluded as
unreliable. Villarini's reports and deposition rely on the
assumption that "Redondo could have submitted bids for contracts
from December 11, 2000 to the present, without interruptions, for
construction projects carried out by the [PRHTA]." But as
described above, the law of the case establishes that Redondo could
not have bid for contracts from the PRHTA after December 29, 2000.
The assumption is flawed, and the district court did not abuse its
discretion in concluding that this makes Villarini's evidence
unreliable.
Villarini's evidence cannot be salvaged by trying to
extract from it the amount of damages, if any, corresponding to the
proper time period. The expert reports calculated total damages
between 2000 and 2010 but did not break down the damages for
individual years within that period. The reports show no plausible
5
The content of the reports is essentially the same as the
deposition testimony. Our analysis applies equally to the reports
and the testimony, and we consider them as a single unit for
purposes of simplicity in addressing Redondo's arguments.
6
Redondo asserts, without citation to the record, that the
reports were "authenticated" during Villarini's deposition, and
that this would be enough to render the reports admissible, citing
11-56 Moore's Federal Practice § 56.94[4][b]. We assume this
point, without deciding, in Redondo's favor.
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way, and Redondo suggests none, to distinguish the damages premised
on the faulty assumption that Redondo could win PRHTA contracts
after December 29, 2000 from those that do not rely on that
assumption. That problem is compounded with respect to the
individual defendants, for whom there is no reliable way to
separate either the proper time period or the proportion of damages
attributable to the individual defendants.
Without Villarini's evidence, Redondo has no record
evidence of damages against the PRHTA or the individual defendants.
The district court correctly entered summary judgment accordingly.
III.
We next consider the district court's sua sponte
dismissal7 of the breach of contract claims against the PBA. We
apply "especially rigorous appellate review" to the district
court's sua sponte dismissal, although the ultimate de novo
standard of review does not vary. Santiago v. Puerto Rico, 655
7
The district court did not explicitly discuss the claims
against the PBA. Instead, it addressed them after granting the
PRHTA's and individual defendants' motions for summary judgment
simply by stating "[t]his case is DISMISSED, with prejudice." We
will refer to the "dismissal" as a proxy for entry of summary
judgment against Redondo on the claims against the PBA. The label
does not change our analysis, because the standards for reviewing
sua sponte dismissals and sua sponte entry of summary judgment are
largely identical. Compare, e.g., Chute v. Walker, 281 F.3d 314,
319 (1st Cir. 2002) (standard for sua sponte dismissal), with
Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996)
(standard for sua sponte summary judgment).
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F.3d 61, 72 (1st Cir. 2011); N.H. Right to Life Political Action
Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996).
There are two important limits on a district court's
authority to enter judgment sua sponte at the summary judgment
stage:
First, a district court ordinarily may order
summary judgment on its own initiative only
when discovery is sufficiently advanced that
the parties have enjoyed a reasonable
opportunity to glean the material facts.
Second, the court may enter summary judgment
sua sponte only if it first gives the targeted
party appropriate notice and a chance to
present its evidence on the essential elements
of the claim or defense.
Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996)
(citations omitted).
We are satisfied that the first condition was met here.
The district court entered judgment on the claims against the PBA
well after the close of discovery, and no party has argued that
additional time for discovery was needed. However, the sua sponte
entry of summary judgment fails on the second condition. Since the
PBA did not seek summary judgment or dismissal, Redondo was never
put on notice that entry of judgment was a possibility, nor was it
given the opportunity to present its evidence to avoid that result.
The district court explained that one defendant's motion
for summary judgment may be sufficient to put the plaintiff on
notice of the need to identify proof as to the other defendants.
That may be true when the same proof applies to both defendants.
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Here, however, the claim against the PBA is differently situated
than the claims against the PRHTA and the individual defendants.
Under the law of the case, Redondo was eligible to bid for PBA
contracts between April 16 and December 29, 2000. It actually did
place several bids during that period and was awarded a PBA
contract for one project, the Van Scoy school project. The PBA
later cancelled the Van Scoy contract after Law 458 was passed.
This contrasts with Redondo's relationship with the PRHTA for
several reasons, including that the Van Scoy contract was
terminated8 and that Redondo had not placed any bids with the PRHTA
during that time.
The district court's failure to provide Redondo notice
and the opportunity to put forward that different evidence was
error. Because the court did not meet the second necessary
condition for entering judgment sua sponte at this stage, its sua
sponte dismissal of the claims against the PBA cannot stand.
IV.
For the reasons stated above, the district court's entry
of summary judgment in favor of the PRHTA and the individual
defendants is affirmed. The dismissal of the claims against the
8
Without in any way indicating a view on its admissibility
as part of Redondo's case, we note that the PBA's expert report
states that, if the PBA owes damages at all, the sum of damages for
the cancelled contract is $190,088.
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PBA is vacated and the case remanded for further proceedings
consistent with this opinion.
Costs are awarded to the PRHTA and individual defendants.
No costs are awarded with respect to the PBA.
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