USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1940
HIDEKO T. WORCESTER AND CHARLES E. WORCESTER,
Plaintiffs, Appellants,
v.
FILENE'S BASEMENT, CORPORATION, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge] ___________________
____________________
Before
Selya, Boudin and Stahl,
Circuit Judges. ______________
____________________
Hideko T. Worcester and Charles E. Worcester on brief pro se. ___________________ ____________________
Joseph P. Musacchio and Melick & Porter, LLP on brief for _____________________ _______________________
appellees Filene's Basement Corporation, Howard Nyman, Ray McCarthy,
Colleen Fitzpatrick, Maureen Supple, and Retail Enterprises, Inc.
Merita A. Hopkins and Robert J. Boyle, Jr. on brief for appellees _________________ ____________________
Francis M. Roache, Ralph Caulfield, and Leo Coogan.
____________________
September 5, 1997
____________________
Per Curiam. Appellants Hideko and Charles ____________
Worcester appeal from the amount of damages the jury awarded
and from two orders of the district court entered prior to
trial. For the following reasons, we find that appellants'
contentions lack merit.
1. Damages. First, "[w]e generally will not _______
review a party's contention that the damages award is
excessive or insufficient where the party has failed to allow
the district court to rule on the matter." O'Connor v. ________
Huard, 117 F.3d 12, 18 (1st Cir. 1997). The record reflects _____
that the district court was never provided with such an
opportunity. In any event, the only evidence appellants
present in support of their claim that the damages award was
too low is new evidence. Of course, this court does not
consider arguments or evidence not presented to the district
court. Matthews v. Marsh, 755 F.2d 182, 183-84 (1st Cir. ________ _____
1985).
2. Joseph Doe's Dismissal. We think that what _______________________
appellants really are complaining about is the district
court's denial of their motion to substitute "Robert
Constine" for "Joseph Doe," which we treat as a motion to
amend the complaint to add an additional defendant. We
review the denial of such a motion for abuse of discretion.
Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. _______________________ ____
1994). "[U]nseemly delay, in combination with other factors,
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may warrant denial of a suggested amendment." Quaker State ____________
Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517 ___________________ ________________
(1st Cir. 1989).
Here, appellants waited to move to amend the
complaint for about one year after the other police officer
involved in Hideko's arrest had been identified. In such a
situation, "the movant[s] ha[ve] the burden of showing some ______
valid reason for [their] neglect and delay." Grant v. News _____ ____
Group Boston, Inc., 55 F.3d 1, 6 (1st Cir. 1995). Appellants __________________
do not present such reasons. First, to the extent that
appellants allege that the actions of their prior counsel
contributed to the delay in moving to amend the complaint,
appellants are bound by the acts or omissions of their
attorneys. United States v. One Lot of $25,721 in Currency, _____________ ______________________________
938 F.2d 1417, 1422 (1st Cir. 1991).
Second, the record reveals that after counsel
withdrew, it was appellants' own inaction which caused the
further delay. Such inaction cannot constitute a valid
reason. See Hayes v. New England Millwork Distributors, ___ _____ ____________________________________
Inc., 602 F.2d 15, 20 (1st Cir. 1979). In any event, we ____
think that both the court and the police defendants would
have been prejudiced by the addition of a new defendant so
late in the case because discovery would have had to be
reopened. See Grant, 55 F.3d at 5-6. ___ _____
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3. Motion of Francis M. Roache for Summary _____________________________________________
Judgment. The district court did not abuse its discretion in ________
denying appellants' request for more time in which to conduct
the discovery necessary to oppose this motion because the
record reveals that prior to the motion, ample time had
existed for such discovery. See Price v. General Motors ___ _____ ______________
Corp., 931 F.2d 162, 164 (1st Cir. 1991) (a party must show _____
"good cause" for the failure to have conducted discovery
earlier). Further, "[a] court may grant summary judgment
despite an opposing party's claim that discovery would yield
additional facts where the opposing party has not alleged
specific facts that could be developed through such
discovery." Taylor v. Gallagher, 737 F,2d 134, 137 (1st Cir. ______ _________
1984). Appellants alleged no such facts here.
We have reviewed the remainder of appellants'
arguments and can find no reason to disturb the judgment of
the district court. Affirmed. ________
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