Coyante v. PR Ports Authority

USCA1 Opinion











UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 95-2050

ROSSY COYANTE,

Plaintiff - Appellant,

v.

PUERTO RICO PORTS AUTHORITY, ET AL.,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge] ___________________

____________________

Before

Coffin and Campbell, Senior Circuit Judges, _____________________

and DiClerico, Jr.,* District Judge. ______________

_____________________

Antonio Jim nez-Miranda for appellant. _______________________
Raymond P. Burgos, with whom Pinto-Lugo & Rivera was on __________________ _____________________
brief for appellee Puerto Rico Ports Authority; Roberto M rquez- _________________
S nchez with whom Law Offices of Benjam n Acosta, Jr. was on _______ _____________________________________
brief for appellee Mangual Maintenance Services, Inc.



____________________

January 23, 1997
____________________



____________________

* Of the District of New Hampshire, sitting by designation.












DICLERICO, Chief District Judge. The plaintiff, Rossy DICLERICO, Chief District Judge. ____________________

Coyante, filed a complaint against the defendants, Puerto Rico

Ports Authority ( Ports Authority ) and Mangual Maintenance

Services, Inc. ( Mangual ), seeking damages she claims to have

suffered as a result of slipping and falling on certain premises

allegedly owned or controlled by the defendants. Following nine

days of testimony at trial, the plaintiff rested and the

defendants moved for judgment as a matter of law under Fed. R.

Civ. P. 50(a) asserting that the plaintiff had produced no

evidence to establish that the defendants owned or controlled the

area where the plaintiff slipped and fell. The district court

agreed with the defendants and, finding that ownership and

control were necessary elements of the plaintiff s case, entered

a judgment against her. In this appeal, the plaintiff challenges

the district court s ruling on the defendants motion under Fed.

R. Civ. P. 50(a) and several other rulings made during the course

of the litigation. For the reasons expressed below, we affirm

the district court s judgment.



Factual and Procedural Background Factual and Procedural Background _________________________________

On July 24, 1990, the plaintiff slipped and fell,

suffering personal injury after disembarking from an

international flight at the Luis Mu oz Mar n International

Airport in San Juan, Puerto Rico. On January 3, 1991, she filed






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suit against the defendants, Ports Authority and Mangual,1 for

negligently failing to make safe a dangerous condition about

which they knew or should have known.2 The plaintiff claimed she

suffered damages arising not only from the accident itself, but

also from the pain she suffered and medical expenses she incurred

when she became addicted to and went through withdrawal from

prescription medications she was taking because of the accident.

On March 30, 1993, the district court, after resolving

an initial challenge to its jurisdiction, granted the plaintiff

leave to amend her complaint and ordered the defendants to answer

the amended complaint on or before April 12, 1993. On March

31, 1993, the plaintiff resubmitted her amended complaint (first

submitted on February 25, 1992) but the defendants did not answer

by April 12 as required by the court s order. However, the

plaintiff did not bring this failure to the court s attention

until more than two years later.

On December 16, 1993, the district court issued a

pretrial conference report requiring the parties to submit a list

of uncontested facts. The parties agreed to a Joint Statement

of Uncontested Material Facts to Supplement Pretrial Order

( joint statement ) on December 17, 1993. The plaintiff attaches

____________________

1 Mangual is a janitorial company with which the Ports Authority
has contracted.

2 Coyante brought a separate action asserting similar claims
against L nea Aeropostal Venezolana, the airline on which she had
traveled. On June 22, 1992, the two cases were consolidated. On
January 25, 1994, the plaintiff and the airline settled their
dispute, leaving as defendants only Ports Authority and Mangual.

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particular significance to the following provisions of the joint

statement:

7. On July 24, 1990, co-defendant Mangual
provided janitorial services at the Luis
Mu oz Mar n International Airport pursuant to
a contract with the Puerto Rico Ports
Authority.

8. On July 24, 1990, the Puerto Rico Ports
Authority owned and operated the Luis Mu oz
Mar n International Airport.

However, the plaintiff alleges that she did not know of the

existence of this document until after she filed her appeal.

On February 9, 1994, the plaintiff attempted to

supplement her list of expert witnesses with a loss-of-income

expert.3 On June 9, 1995, the court denied her request to

include this expert as a witness without articulating the reasons

for its denial.

On December 12, 1994, the court entered a scheduling

order requiring discovery to be concluded by April 20, 1995. On

February 22, 1995, the plaintiff fired her counsel and, on

February 27, 1995, filed a pro se motion so informing the court.

On March 16, 1995, the court held a status conference. At that

conference, the court granted a motion filed by the plaintiff s

counsel to withdraw from the case and for scheduling purposes

asked counsel whether further discovery was pending at that time.



____________________

3 The plaintiff also attempted to add other witnesses who would
have bolstered her case on the issue of damages. We focus on the
district court s ruling on the loss-of-income expert because the
issues involved are identical.

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Counsel informed the court that no further discovery was pending,

and the court let stand its April 20, 1995, discovery deadline.

On March 23, 1995, current counsel appeared on the

plaintiff s behalf.4 The file he received from prior counsel was

reportedly in disarray and reflected that the plaintiff had

undertaken no discovery of the defendants. On April 19, 1995,

one day before the deadline set for discovery to be completed,

the plaintiff moved to extend the discovery deadline and take a

deposition. This motion was denied by the court on May 24, 1995.

On June 9, 1995, the plaintiff moved to supplement the

pretrial order issued on December 17, 1993, to reflect subsequent

changes in her case. The same day, the court held a pretrial

conference and ruled that it would use without amendment the

December 17, 1993, pretrial order, that the plaintiff s loss-of-

income expert would not be allowed to testify, and that no

further discovery would be allowed.

In July 1995, after four and one-half years, trial

appeared imminent. However, three days before trial the

plaintiff submitted a motion requesting that default be entered

against the defendants for their failure to answer her amended

complaint. The district court did not rule on this motion until

August 3, 1995, after the conclusion of the trial, at which time

it declared the motion moot.
____________________

4 The plaintiff s counsel at trial and on appeal was the seventh
lawyer to appear for her in this litigation, not counting her
brief pro se appearance. Prior lawyers were fired or left the
plaintiff s employ for such reasons as irreconcilable
differences and loss of confidence.

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At trial, the plaintiff s case focused almost

exclusively on her damages resulting from the fall. Beyond her

own testimony, she produced only one occurrence witness, Mirta

Silva, to describe the scene of the accident. The two witnesses

provided a detailed description both of the scene of the accident

and of how the accident occurred.5 However, neither Silva nor

the plaintiff identified specifically where within the airport

the accident occurred. There was no testimony about what gate

the flight used, which hallway the passengers traveled, or where

customs was located. No testimony specifically identified the

location of the accident within the larger context of the

airport.6 No testimony connected either defendant to the

location where the accident occurred or established what duty, if

any, the defendants owed to the plaintiff to make the location

safe. In fact, at trial the plaintiff made little mention of

defendant Ports Authority and produced no testimony at all

mentioning defendant Mangual.

At the close of the plaintiff s nine-day case, the

defendants moved for judgment as a matter of law under Fed. R.

Civ. P. 50(a), alleging that the plaintiff had not presented any
____________________

5 The accident occurred in a hallway which connected the area
where the passengers left the airplane with an adjoining customs
area. A pool of water, which apparently formed due to a crack in
the ceiling, covered almost the entire width of the hallway in
front of the door to customs. The plaintiff fell while
attempting to traverse the pool.

6 For example, an employee connected with the airport prepared a
report about the accident shortly after it happened that was
presented at trial but the report failed to specify the location
of the accident.

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evidence from which it could be found that the defendants were in

control of and responsible for maintaining the location where the

accident occurred. The district court granted the motion.

On September 1, 1995, the plaintiff filed a notice of

appeal from the district court s Rule 50(a) decision. In

connection with her appeal, the plaintiff requested a copy of the

file from the district court clerk and upon inspection of the

file allegedly discovered for the first time the joint statement.

The plaintiff had not mentioned the joint statement during the

presentation of evidence in her case or when opposing the

defendants Rule 50(a) motion.



Discussion Discussion __________

The plaintiff on appeal has assigned as error a number

of decisions by the district court during the course of this

litigation.

A. Rule 50(a) Decision A. Rule 50(a) Decision _______________________

The plaintiff contends that the district court

improperly dismissed her case under Fed. R. Civ. P. Rule 50(a).

Rule 50(a)(1) states:

If during a trial by jury a party has been
fully heard on an issue and there is no
legally sufficient evidentiary basis for a
reasonable jury to find for that party on
that issue, the court may determine the issue
against that party and may grant a motion for
judgment as a matter of law against that
party with respect to a claim or defense that
cannot under the controlling law be
maintained or defeated without a favorable
finding on that issue.


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We review the grant of a Rule 50(a) motion de novo. Katz v. City _______ ____ ____

Metal Co., 87 F.3d 26, 28 (1st Cir. 1996); Andrade v. Jamestown __________ _______ _________

Hous. Auth., 82 F.3d 1179, 1186 (1st Cir. 1996). In doing so, we ___________

use the same standards as the district court, considering all the

evidence and inferences reasonably to be drawn from it in the

light most favorable to the non-movant. Katz, 87 F.3d at 28; ____

Andrade, 82 F.3d at 1186. However, [t]o warrant submission of _______

an issue to the jury, the plaintiff must present more than a

mere scintilla of evidence and may not rely on conjecture or

speculation. Katz, 87 F.3d at 28 (quoting Richmond Steel, Inc. ____ ____________________

v. Puerto Rican American Ins. Co., 954 F.2d 19, 22 (1st Cir. ________________________________

1992)).

The plaintiff s attack on the trial court s decision to

enter judgment against her as a matter of law centers on two

factors that she claims bolster the minimal evidence she

presented: the joint statement and the knowledge of the jurors.

According to the plaintiff, either factor, when combined with the

testimony about the location of the accident, was sufficient to

allow the jurors to make an inference in her favor as to the

ownership and control of the area.

1. The Joint Statement 1. The Joint Statement _______________________

The plaintiff argues that the joint statement should

have been considered as part of her case, and contends that it

was sufficient to establish that Ports Authority owned and

Mangual maintained the area of the airport where the accident

occurred. However, the plaintiff s argument suffers from a fatal


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defect, namely, the joint statement was never introduced into

evidence.7 It is a basic tenet of trial procedure that a

stipulation concerning uncontested facts must be introduced into

evidence by the party who intends to rely on it in order for

those facts to be considered by the trier of fact, whether it be

jury or judge. Contrary to the plaintiff s assertion, it was her

responsibility, and not the court s or the defendants , to ensure

that the joint statement was introduced into evidence. As we

have explained,

in our adversary system of justice it is the
parties responsibility to marshal evidence
and prove their points. Litigants cannot
expect the court to do their homework for
them. [Citations omitted].

Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 356-57 (1st Cir. _____________________ _______

1994). The plaintiff, for whatever reason having failed to

introduce the joint statement into evidence, cannot now avoid the

consequences of her inaction by claiming the court or the

defendants had the responsibility to introduce it.8
____________________

7 Even if the plaintiff had introduced the joint statement into
evidence, it is by no means a foregone conclusion that it would
have sufficiently cured the deficiency in her evidence to
withstand the Rule 50(a) motion. We need not confront this
issue, however, because the plaintiff never introduced the joint
statement into evidence.

8 The plaintiff has also offered two other related theories
concerning the effect of the joint statement. First, she claims
that the agreement that produced the joint statement should have
barred the defendants from moving for judgment as a matter of law
on the issues of ownership and control. She further asserts that
the joint statement functioned as a contract between the parties,
one of the implied terms of which was the defendants promise not
to contest ownership and control, and that breach of this
agreement requires reversal. As the plaintiff has produced
neither legal authority nor well-reasoned arguments for these

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2. The Jury s Experience 2. The Jury s Experience _________________________

The plaintiff next contends that she produced enough

evidence at trial to allow the jurors to infer, based on their

own experience, that defendant Ports Authority owned and

controlled the area of the airport where the accident took

place.9 The trial judge, the plaintiff maintains, impermissibly

substituted his judgment for that of the trier of fact by

removing this decision from the jury.

This case clearly does not present a situation where

the jury could rely on its general knowledge and experience to

determine something as specific as the location and control of

the area where the plaintiff fell. It would be pure speculation

to assume what, if any, knowledge the members of the jury

possessed concerning these specific issues. Although the

plaintiff correctly notes that she is entitled to all reasonable

inferences in her favor, tenuous conclusions extrapolated from

conjectural knowledge attributed to jurors cannot substitute for

evidence tested by the adversary process. As we have said, [t]o

warrant submission of an issue to the jury, the plaintiff must

present more than a mere scintilla of evidence and may not rely

on conjecture or speculation. Katz, 87 F.3d at 28 (quoting ____

____________________

propositions, we decline to find that either one is viable under
the facts of this case.

9 At oral argument, the plaintiff conceded that defendant
Mangual s liability could be established only by the joint
statement, and not by the jurors experience and knowledge,
because the plaintiff produced no evidence at trial that referred
to Mangual.

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Richmond Steel, Inc. v. Puerto Rican American Ins. Co., 954 F.2d _____________________ ______________________________

19, 22 (1st Cir. 1992)). Speculation about what the jurors might

have inferred based on their personal knowledge of airports

cannot and does not save the plaintiff s case.



3. Other Evidence from which an Inference of Ownership or 3. Other Evidence from which an Inference of Ownership or ___________________________________________________________
Control Might Arise Control Might Arise ___________________

We next review de novo the record upon which the ________

plaintiff rested her case for any evidence that might raise a

reasonable inference that Ports Authority owned and Mangual

maintained the area where the accident occurred. A thorough

search of the appellate record reveals no evidence more helpful

to the plaintiff than that considered, and rejected as

inadequate, by the district court.

The trial judge made the following statement after

considering the Rule 50(a) motion:

I cannot take judicial notice of a place
that I don t even know which is the place.
We cannot, by any stretch of the imagination,
and even viewing the evidence in the light
most favorable to the [plaintiff], reach a
reasonable conclusion . . . that the place
where she fell, which we don t know where it
is, we don t know which gate, we don t know
which area of the airport, was under the
control of the Ports Authority . . . .

Our independent evaluation of the paucity of evidence the

plaintiff managed to produce on this point after nine days of

trial draws us inexorably to the same conclusion -- the evidence

produced by the plaintiff was insufficient to withstand judgment

for the defendants as a matter of law.


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We conclude that the district court properly granted

the defendants Rule 50(a) motion. The plaintiff had ample

opportunity at trial to produce evidence from which the location

of the accident and the ownership and control of that location

could be determined, but she failed to do so.



B. Pre- and Post-Trial Rulings B. Pre- and Post-Trial Rulings _______________________________

The plaintiff next challenges several pre- and post-

trial rulings by the district court.

1. Discovery 1. Discovery _____________

The plaintiff asserts that the district court erred in

prematurely ordering that discovery be concluded when it failed

to extend the discovery deadline. She argues that the district

court improperly decided that no further discovery was needed

based on a conference in which an attorney previously dismissed

by the plaintiff purported to act as her counsel. We review the

district court s decision refusing to extend the discovery

deadline for abuse of discretion. Mulero-Rodr guez v. Ponte, ________________ ______

Inc., 98 F.3d 670, 679 (1st Cir. 1996). ____

The persuasiveness of the plaintiff s argument is

undercut by its lack of supporting legal authority. In fact, the

relevant extant authority runs contrary to the plaintiff s

position. As we have noted, courts have discretion

under the inherent power necessarily vested
in [them] to manage their own affairs so as
to achieve the orderly and expeditious
disposition of cases.



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Luis C. Forteza & Hijos, Inc. v. Mills, 534 F.2d 415, 418 (1st ______________________________ _____

Cir. 1976) (quoting Link v. Wabash, 370 U.S. 626, 630-31 (1962)). ____ ______



The minutes of the March 16, 1995, status conference

indicate that the trial judge did not abuse his discretion in

conducting the conference. At that conference the trial judge

properly recognized the plaintiff s former counsel for the

limited purpose of granting him permission to withdraw from the

case and at the same time made an appropriate inquiry of him as

to the status of any pending discovery. Counsel indicated that

no discovery was pending. The trial judge s decision not to

extend discovery at that time based on counsel s response was an

appropriate exercise of his case management authority given the

fact that the case had been languishing on the district court

docket for more than four years and there had been ample time for

discovery to be completed. There was still an opportunity for

the plaintiff s successor counsel to attempt in a timely fashion

to have the deadline extended. However, he waited for one month

after appearing in this case to request an extension, and that

request was filed on the day before the existing deadline for

discovery. The trial judge had provided ample time for

discovery, and the plaintiff s failure to take advantage of that

opportunity, whether attributable to her personally or to her

attorneys, does not provide an adequate basis for us now to

second-guess the trial judge s determination that, after four

years, the time to conclude discovery had come.


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2. Entry of Default 2. Entry of Default ____________________

The plaintiff also asserts that the district court

should have entered a default against the defendants for their

failure to answer her amended complaint rather than allowing the

motion to become moot. As we have noted, [a] default judgment

is itself a drastic sanction that should be employed only in an

extreme situation. Forteza, 534 F.2d at 419; cf. Anderson v. _______ ___ ________

Beatrice Foods Co., 900 F.2d 388, 396 (1st Cir.) (discovery ___________________

abuse, while sanctionable, does not require as a matter of law

imposition of most severe sanctions available), cert. denied, ____________

498 U.S. 891 (1990). The facts of this case do not present an

extreme situation justifying the entry of default.

It is certainly not without significance that the

plaintiff took no action in response to the defendants failure

to answer until more than two years after the deadline had

passed. In addition, the defendants had already answered the

plaintiff s initial complaint and the amended complaint did not

materially alter the plaintiff s theory of the case. There is

nothing in the record to suggest that the district court s

failure to enter a default judgment under these circumstances was

an abuse of discretion. In another context, we have endorsed the

authority of district courts to impose less than the most extreme

sanction available. See Anderson, 900 F.2d at 396 (discovery ___ ________

abuse). We will not upset the district court s decision, which

rested within its sound discretion, not to enter a default

judgment against the defendants.


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3. Exclusion of Plaintiff s Expert Witness 3. Exclusion of Plaintiff s Expert Witness ___________________________________________

The plaintiff next argues that the district court

improperly barred her from amending her pretrial submissions to

include her loss-of-income expert. She argues that allowing her

loss-of-income expert to testify would have created no surprise

or prejudice to the defendants because he was known to them and

that excluding him deprived the plaintiff of her right to present

those facts to the jury.

We need not reach the merits of this argument. Since

the plaintiff failed to establish the defendants liability, the

district court s ruling on this matter did not affect the outcome

of the case.

4. Costs and Expenses 4. Costs and Expenses ______________________

Finally, the plaintiff seeks the costs and expenses

she incurred at trial. Since the plaintiff did not prevail at

trial and has provided neither justification nor legal authority

to support her claim that she is entitled to costs and expenses

as a non-prevailing party, we find no abuse of discretion in the

trial court s decision not to award her any costs or expenses.



Conclusion Conclusion __________

For the reasons stated above, the judgment of the

district court is affirmed. Costs are awarded to the defendants. affirmed ________








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