Rodriguez-Miranda v. Benin

United States Court of Appeals
For the First Circuit

Nos. 14-1334, 14-1518

ÁNGEL EDGARDO RODRÍGUEZ-MIRANDA,

Plaintiff, Appellee,

v.

MALIK BENIN; COQUICO, INC.; 18 DEGREES NORTH, LLC;
ACQUANETTA M. BENIN,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Lipez, and Thompson,
Circuit Judges.

Eddi Z. Zyko for appellants.
Jane A. Becker Whitaker for appellee.

July 13, 2016
 THOMPSON, Circuit Judge. This appeal represents yet

another installment in the protracted employment dispute between

two former colleagues — plaintiff-appellee Ángel Edgardo

Rodríguez-Miranda (Rodríguez) and defendant-appellant Malik Benin

(Benin). Here, we must contend with the apparent efforts of Benin

to avoid paying a judgment entered against his company, Coquico,

Inc. (Coquico), in favor of Rodríguez for $348,821.23. Benin

evidently sought to avoid the judgment by transferring Coquico's

assets to his mother, Acquanetta M. Benin (Acquanetta), and to a

new company, 18 Degrees North, LLC (18 Degrees North). The

principal issue on appeal is, in essence, whether the district

court erred in using Federal Rule of Civil Procedure 25(c) to hold

Coquico, Benin, Acquanetta, and 18 Degrees North (collectively,

appellants) liable for the judgment originally entered against

Coquico only. Benin also challenges the district court order

finding him in civil contempt and imposing a $5,000 sanction.

After careful consideration of appellants' arguments, we affirm.

I. HOW WE GOT HERE

This case has an unusual, somewhat circuitous history;

therefore, it is necessary for us to go into some detail in laying

out its factual and procedural background.

The saga began in 2000 when Rodríguez left his position

in the Puerto Rico Federal Affairs office in Philadelphia,

Pennsylvania, and was subsequently recruited by Benin to join

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Benin's Pennsylvania-based1 start-up venture — Coquico.

Coquico manufactures and distributes plush-toy animals,

including a line of toys designed to resemble a small brown tree

frog that is adored in Puerto Rico — the coquí. Because the

company was a start-up, Rodríguez, who oversaw the company's growth

in Puerto Rico while Benin supervised from afar in Philadelphia,

initially agreed to lend the company money (the record does not

make clear what these loans were for) and to forego salary and

incentive payments until the business got on its feet.

A. The Relationship Sours: A Tale of Two Lawsuits

Rodríguez worked for Coquico for four years, but became

disgruntled when Benin continued to withhold compensation and loan

repayments from him even as the company began making money.

Eventually, Rodríguez left Coquico and filed a collection claim

against the company in San Juan Superior Court for money owed.2

And that's not all. After filing suit, Rodríguez approached

Coquico's suppliers and began to distribute apparently similar

plush-toy coquís himself in Puerto Rico through his own company,

Identiko, Inc. (Identiko). In response to this upstart venture,

Coquico sued Identiko and Rodríguez in federal court in Puerto

1 Coquico is a Pennsylvania corporation with a registered
office in Wayne, Pennsylvania. Benin is its Chief Executive
Officer and principal shareholder.
2 Rodríguez alleged that Coquico owed him $165,000 in salary
and expenses, $119,000 in commissions, and $99,402 in unpaid loans.

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Rico for, among other things, copyright infringement, alleging

that Rodríguez and Identiko had infringed Coquico's copyrights for

the coquí plush-toys (more on this later). For the reader's ease,

we refer to this as the "copyright action" from here on out.

After a preliminary injunction hearing in the copyright

action, the district court entered an order enjoining Rodríguez

and Identiko from continuing to market the plush-toy coquís.3

Coquico then sought contempt sanctions and damages before the

district court.

In turn, Rodríguez dismissed, without prejudice, his

collection claim, which had still been pending in San Juan Superior

Court, and re-filed the action in federal court in Puerto Rico

against Coquico, Benin, and Benin's wife, Phillipa Ashby, seeking

payment of his promised wages and loan money.4 It is this

"collection action" that is the case at issue here.

3 Rodríguez and Identiko filed an interlocutory appeal
challenging the injunction, and this court affirmed. See Coquico,
Inc. v. Rodríguez-Miranda, 562 F.3d 62, 65 (1st Cir. 2009).
4 Rodríguez initially sought to pursue these claims as a
counterclaim against Coquico in the copyright action, but the
district court denied his request to amend his answer. In his
complaint in the collection action, Rodríguez initially included
a claim for defamation, alleging that Benin had knowingly and
falsely accused Rodríguez of using his political influence (as a
member of the Puerto Rico House of Representatives since 2008) to
gain an advantage in the copyright litigation. Rodríguez later
voluntarily dismissed his defamation claim.

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 Both cases moved forward in parallel proceedings before

different district judges.5 In the copyright infringement action,

the district court found that "Identiko and Rodríguez infringed

[Coquico's] copyrights and that [Coquico was] therefore entitled

to recover damages." Coquico, Inc. v. Rodríguez-Miranda, No. 07-

1432 JP, 2010 WL 3372388, at *3 (D.P.R. Aug. 24, 2010). But

Coquico "elected to seek statutory damages in lieu of actual

damages," and, on August 24, 2010, the district court awarded

Coquico $15,000 based on the evidence presented at the bench trial.

Id. at *2-3.

As for the collection action, it went to trial, and, on

July 27, 2011, a jury found for Rodríguez against Coquico only6 in

the amount of $348,821.23.7 Coquico did not appeal, and, on

September 19, 2011, the district court issued a writ of execution

of judgment.

B. Post-Judgment Shenanigans

Nearly a year later, on August 21, 2012, Rodríguez, who

5 Judge Jaime Pieras, Jr. presided over the copyright action,
but after final judgment was entered, the case was later assigned
to Judge Fusté for limited post-trial matters.
6 The record does not make clear why the other parties — Benin
and his wife, Phillipa Ashby — were not also listed on the
judgment.
7 The jury awarded $71,554.23 for outstanding loan payments,
$187,832 in salary, $32,085 in commission payments, and $57,350 in
reimbursements for expenses.

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had been unable to recover one dime on his judgment, electronically

filed a motion asking the district court to order the sale of

Coquico's assets to satisfy the judgment.8 Accordingly, on

September 11, 2012, the district court approved the seizure and

sale of Coquico's copyrights and trademarks to satisfy the debt.9

In June 2013, Coquico received notice from the district

court that the sale of its intellectual property had been scheduled

for July 11, 2013. On July 8, 2013, three days before the scheduled

sale, Benin's mother, Acquanetta, who was not represented by

counsel, sought to intervene in the collection action and to stay

execution, claiming that she was the record owner of the property

set for sale having previously purchased the relevant intellectual

property from Coquico years before. Notably, in support of her

motion to intervene, Acquanetta filed notarized transfer documents

8 When motions are filed electronically using the CM/ECF
system, notifications are automatically sent to all parties in the
case who have provided an e-mail address. According to district
court rules, the court sends pro se litigants who are not
registered to use the CM/ECF system paper copies of all documents
filed in their case.
9 The district court approved the sale of the same copyrights
and trademarks that had been at issue in the copyright action,
namely: (1) "Comun by Coquico" Copyright number VA0001075653;
(2) "Coquico: We Sing" Copyright numbers TX0005550274,
TX0005535397; (3) "Musical plush toy frog named 'Comun' A
commissioned work for Coquico, Inc. by Michael Tian" Copyright
number V3473D525; (4) "Rufus/by Coquico, Inc." Copyright number
VA0001138519; (5) "Tata/by Coquico, Inc." Copyright number
VA0001138520; and (6) Trademarks: Reg. Nos. 2,534,754; 2,560,104;
2,541,228. For clarity, we will refer to the copyrights and
trademarks collectively as "intellectual property."

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that seemed to show that Benin, acting as "CEO & Founder" of

Coquico, had assigned the intellectual property to her in 200610 —

over a year before Coquico filed its copyright action against

Rodríguez and Identiko. To complicate matters further,

Acquanetta's filings indicated that the copyright assignment had

not been recorded with the United States Copyright Office until

June 4, 2012 — more than six years after it was ostensibly assigned

to her and, important for our purposes today, a year after

Rodríguez obtained judgment against Coquico in the collection

action.

In tandem with his mother's filing in the collection

action, Benin moved pro se11 to likewise stay the sale12 of the

10The text of the purported copyright assignment actually
contains no date but the second page of the document, which
contains the signatures, includes a notary public signature dated
January 23, 2006.
11According to the district court docket, Coquico's and
Benin's trial attorney was terminated as of October 3, 2011, a few
weeks after the writ of execution of judgment was entered. No
other attorney entered an appearance on their behalf. Both Benin's
and Acquanetta's motions to stay were identified as being pro se
motions. Rodríguez pointed out to the district court, however,
that Benin's motion to vacate appeared to have been written and
signed by an attorney. In a subsequent bankruptcy proceeding,
discussed in more detail below, Benin acknowledged that the motions
were in fact prepared by Coquico's bankruptcy attorney, Kahiga A.
Tiagha, and mailed for filing from his law office in Philadelphia.
In re Coquico, Inc., 508 B.R. 929, 935 (Bankr. E.D. Pa. 2014).
The bankruptcy court mused that these attorney filings in pro se
clothing may have constituted "fraud on the court."
12Unlike Acquanetta, Benin, if you recall, was already a
party to the action and did not need to move to intervene. To
review, although the judgment was entered against Coquico only,

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intellectual property, arguing, for the first time, that

Acquanetta was an "indispensable party to the action" because she,

not Coquico, owned the property.13 In short, despite Benin's prior,

consistent representations, not only in his copyright action but

also in the collection action, that Coquico — not Acquanetta — was

the owner of the copyrights, Benin now asserted that his mother

had "purchased" the intellectual property back in 2006. Therefore,

he claimed that she was a necessary party to the collection action

with "an interest relating to the subject of the action," Fed. R.

Civ. P. 19(a)(1)(B), who had been improperly excluded.

The district court denied both Acquanetta's motion to

intervene and Benin's motion to stay by paper order, explaining

that it would "not allow intervention on a matter concluded by

judgment a long time ago," especially when the public auction for

the sale of the intellectual property was set for the next day.

At the time it docketed this order, on July 9, 2013, the

district court was not aware that just that day Coquico,

represented by counsel, had filed for bankruptcy under Chapter 7

of Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.,

Coquico, Benin, and Benin's wife, Phillipa Ashby, had all been
parties to the collection action.
13 Benin also argued that Rodríguez had failed to properly
serve the defendants — Benin, his wife, and Coquico — with
Rodríguez's motion requesting the sale of Coquico's intellectual
property. But Rodríguez's motion was filed electronically using
the CM/ECF system.

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in the bankruptcy court for the Eastern District of Pennsylvania.

Upon learning of the filing, the district court stayed the case

pending resolution of the bankruptcy proceeding.

C. A Detour to Bankruptcy Court

In its bankruptcy filings, Coquico, through Benin,

claimed to have little to no assets. As for creditors, aside from

the judgment owed to Rodríguez, the majority of Coquico's purported

creditors were Benin's own friends and family. And, consistent

with Benin's and Acquanetta's motions to stay filed in the

collection action, Coquico professed in its filings to own no

intellectual property, claiming instead that all intellectual

property was "subject to a claim of Acquanetta Benin."

Rodríguez, who appeared in the bankruptcy action as a

creditor of Coquico's, moved to dismiss the bankruptcy petition

for lack of good faith pursuant to 11 U.S.C. § 707, arguing "that

the sole reason for the [bankruptcy] filing was to prevent the

Judicial Sale [of Coquico's intellectual property]." Rodríguez

noted that the notarized transfer documents — which supposedly

showed that the intellectual property had been assigned to

Acquanetta — didn't even appear to be genuine. For example,

Rodríguez pointed out that, although Benin claimed he had assigned

the copyright for another of Coquico's products, the "Vejigante

Bear," to his mother on January 23, 2006, the "Vejigante Bear"

copyright was not registered with the United States Copyright

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Office until February 24, 2006. So, Benin could not have assigned

it to his mother, Acquanetta, a month before the copyright even

existed.14 In addition, Rodríguez argued that Coquico had

intentionally "diverted [its] business and operations . . . to a

new entity to attempt to avoid payment to Rodríguez."

Responding to Rodríguez's motion to dismiss, the

bankruptcy court held a two-day evidentiary hearing on December 2,

2013, and January 13, 2014. Noteworthy here, during the

evidentiary hearing, Benin explained that he was operating a newly

surfaced Pennsylvania limited liability company — 18 Degrees

North — which he had registered with Pennsylvania's Department of

State Corporation Bureau in March 2010. Somewhat remarkably, Benin

admitted at the evidentiary hearing that 18 Degrees North was

essentially the same business as Coquico, "minus [Rodríguez's]

judgment." And, in fact, the similarities are considerable:

 Benin is the Chief Executive Officer, President, and
principal shareholder of 18 Degrees North, as with
Coquico;

14
At the two-day evidentiary hearing in the bankruptcy court,
Benin attempted to explain the discrepancy by admitting that he
had altered the notarized documents submitted to the copyright and
trademark offices, submitting "amended" transfer documents but
using the same signature page. Benin explained that he thought
this was appropriate because the original was simply a
"placeholder." The bankruptcy court later speculated that Benin’s
conduct, altering a notarized document, may have amounted to "a
first-degree misdemeanor."

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  18 Degrees North has the same mailing address as
Coquico and manufactures and sells the same plush toys
as Coquico;

 Acquanetta licensed her intellectual property
exclusively to Coquico until 2016, and then (somehow)
also licensed it to 18 Degrees North, effective August
31, 2009;

 18 Degrees North's bank account and Pennsylvania
registration are under the name "18 Degrees North,
LLC, d/b/a Coquico;"

 18 Degrees North's customers overlap with Coquico's
customers and were derived from Coquico's customer
lists;

 Orders made at Coquico's website are filled by 18
Degrees North, and Benin testified that "the front-
end of [Coquico's] website [is] essentially the brand
Coquico, but the transactions and the inventory [are]
associated with 18 Degrees North;"

 In a single year Coquico transferred approximately
$45,000 to 18 Degrees North.

At the conclusion of the two-day evidentiary hearing,

the bankruptcy court granted Rodríguez's motion to dismiss Benin's

bankruptcy petition, finding it was filed in bad faith. See In re

Coquico, Inc., 508 B.R. 929, 933 (Bankr. E.D. Pa. 2014). The

bankruptcy court determined that Coquico's bankruptcy schedules

"contain[ed] so many material falsehoods, inaccuracies, and

omissions" that it was "shocking." Highlighting that Coquico's

bank accounts "reflected the commingling of funds," "the payment

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of personal expenses,[15] prepetition defalcations, [and] post-

petition unauthorized transactions," the bankruptcy court found

that "virtually every bad faith criteria [was] met . . . without

question." See also In re Coquico, Inc., 508 B.R. at 944 (noting

that "[t]he evidence established that Benin looted Coquico both

prepetition and postpetition, and that he lied in multiple court

filings as to Coquico's assets").

The bankruptcy court further noted that 98 percent of

Coquico's debt was held by Benin's family members — his wife, his

father, and, of course, his mother, Acquanetta. What's more, the

bankruptcy court found Benin's testimony to be "extremely evasive,

not credible, contrived and, frankly, coached."

Finally, the bankruptcy court found the timing of the

filing suspicious, especially given Benin's own (striking)

testimony "that the purpose of the bankruptcy filing was to stop

the judicial sale." The bankruptcy court concluded that Coquico's

bankruptcy filing was "nothing more . . . than an attempt to

relitigate the copyright lawsuit and the collection lawsuit," and

to "spirit away the only valuable asset . . . the copyrights . . .

[t]aking the customers, the products, everything and . . .

transitioning them . . . into 18 [D]egrees [N]orth simply to attain

15 Benin had readily admitted to the bankruptcy court that
Coquico paid basically all of his personal expenses, as well as
his family's personal expenses, including, for example, charges to
Nordstrom Rack and DirecTV services in his wife's name.

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relief from a judgment creditor." See also In re Coquico, Inc.,

508 B.R. at 943-44 (noting that "Benin's own testimony from the

Dismissal Motion hearing made crystal clear that it was his

ultimate intention to spirit away the business and assets of

Coquico in order to leave Coquico judgment proof and his plush toy

business insulated from the Rodr[í]guez judgment").

D. Another Attempt to Collect the Judgment

After the bankruptcy case was dismissed, on January 29,

2014, Rodríguez filed yet another motion in the district court in

Puerto Rico in the collection action seeking to compel payment of

the judgment. The miscellaneous motion — titled "Motion Asking

This Court To Order Defendant And Respondents To Pay the Judgment

In This Case On Penalty Of Contempt" — invoked concepts of

successor liability, veil piercing, and fraud and sought to join

Benin, Acquanetta, and 18 Degrees North to the action and to hold

them jointly and severally liable for the judgment. Rodríguez

attached Coquico's bankruptcy schedules, the bankruptcy hearing

transcript, and the bankruptcy judge's oral decision to the motion.

Rodríguez filed the motion electronically and also sent

copies of the motion by regular mail to Coquico, 18 Degrees North,

Benin, and Acquanetta. Upon receiving and reviewing Rodríguez's

motion, the district court issued an electronic order setting the

motion for hearing on February 28, 2014. The district court also

ordered Rodríguez to "notify all parties in interest" of the

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hearing and that failure to appear would result in sanctions.

Accordingly, Rodríguez engaged a process server, who personally

served Acquanetta with Rodríguez's motion and with the district

court's order. And, although Benin avoided personal service, he

ultimately acknowledged that he had also received the motion and

the district court's order.

Shortly before the hearing on Rodríguez's motion, Benin

filed a letter, "as an officer of Coquico," informing the district

court that he did not have the resources to hire an attorney and

that he would not be able to attend the hearing. Aside from

perfunctorily mentioning that the judgment had been entered

against Coquico "and no other parties," Benin did not respond to

the substance of Rodríguez's motion. Rodríguez replied to Benin's

letter, informing the district court that Benin had, in fact, been

able to hire two attorneys to represent him in the bankruptcy case.

The district court denied Benin's motion (such as it was) and the

hearing continued as scheduled.

Despite having been noticed and ordered to appear,

Benin, Acquanetta, 18 Degrees North, and Coquico all failed to

attend the district court hearing or to oppose Rodríguez's motion.

But the hearing proceeded, and Rodríguez entered into evidence the

transcript from the bankruptcy hearing, including Benin's

testimony, and the bankruptcy court's findings of fact and

conclusions of law.

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 On March 6, 2014, the district court entered an order

that joined Benin, Acquanetta, and 18 Degrees North to the action

pursuant to Rule 25(c) and held them liable for the judgment. The

district court determined that all three were joinable under Rule

25(c), specifically concluding "that 18 Degrees North [] is a

successor corporation and alter ego of Coquico" and, therefore,

"is liable for [Coquico's] debts, including the judgment, costs,

and interest award," and that Benin and Acquanetta are alter egos

of both Coquico and 18 Degrees North and, consequently, are also

liable for the judgment.

The district court also held Coquico, Benin, Acquanetta,

and 18 Degrees North in civil contempt for failure to appear at

the hearing and ordered Benin to pay $5,000, "[g]iven the magnitude

and the variety of the offenses" he committed to avoid paying the

judgment. The district court did not sanction Acquanetta but

indicated that if she continued to violate the district court's

orders it would do so.

Benin paid the contempt sanction, and appellants timely

appealed.

II. DISCUSSION

On appeal, appellants challenge, in essence, (1) the

district court's use of Rule 25(c) to join Benin, Acquanetta, and

18 Degrees North to the judgment and (2) the district court's order

finding Benin in civil contempt and imposing a $5,000 sanction.

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 A. Rule 25(c)

1. Notice: Clearing the Underbrush

The heart of appellants' argument on appeal, is that the

district court erred in using Rule 25(c) to hold them liable for

the judgment entered in favor of Rodríguez.16 But before tackling

appellants' primary Rule 25(c) arguments, we must first address a

threshold issue. Appellants seem ("seem" because their positions

are often hard to tease out) to argue that, although Rodríguez's

motion sought to join them as parties and hold them liable for the

judgment, Rodríguez's motion was insufficient because it did not

cite Rule 25(c) as the procedural vehicle for doing so. Appellants

point to Federal Rule of Civil Procedure 7(b)(1) for the

proposition that motions must "state the relief sought." Fed. R.

Civ. P. 7(b)(1)(C). The implication being, it seems, that because

Rodríguez's motion did not specifically mention Rule 25(c), it did

not state with sufficient particularity the relief Rodriquez was

seeking. Thus, appellants argue, the district court "essentially

grant[ed] summary judgment on a theory not raised in the motion

papers and without advance notice."

16
Appellants also argue that the district court lacked
personal jurisdiction over them. Although we would typically
address jurisdictional questions first, because our conclusions
with regard to the district court's application of Rule 25(c)
resolve any jurisdictional issues, we will address appellants'
jurisdictional arguments in due course.

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 But the relevant Rule 7 question is whether appellants

were "prejudiced by a lack of particularity" and whether the

district court could "comprehend the basis for the motion and deal

with it fairly." Cambridge Plating Co. v. Napco, Inc., 85 F.3d

752, 760 (1st Cir. 1996) (quoting Registration Control Sys.,

Inc. v. Compusystems, Inc., 922 F.2d 805, 807-08 (Fed. Cir. 1990));

see also 5 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 1192

(3d ed.) ("[T]he niceties of specifying the relief or order sought

by the motion are unimportant in some situations and can be

disregarded by the court.").

Rodríguez's motion clearly seeks to join Benin,

Acquanetta, and 18 Degrees North as parties to the action and to

hold them liable for the judgment entered against Coquico. In

support of his request, Rodríguez's motion described, in detail,

how Benin and Acquanetta attempted to shield Coquico from

Rodríguez's judgment by fraudulently transferring Coquico's

intellectual property to Acquanetta, and ultimately shifted those

assets to 18 Degrees North in an effort to continue Coquico's

business free from liability. The motion likewise detailed how

Benin and Acquanetta allegedly raided both corporations' reserves

for their own personal use, rendering their personal assets and

the corporate assets indistinguishable. Moreover, as described in

some detail above, there is no question that appellants received

a copy of Rodríguez's motion along with the text of the district

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court order setting the hearing. Therefore, Rodríguez's motion

unmistakably afforded appellants notice of the grounds and relief

sought, if not the procedural mechanism for getting there.17 And

so, appellants' assertions of error are without merit.

2. Application of Rule 25(c)

Having disposed of appellants' notice arguments, we now

turn to the merits of their Rule 25(c) challenge. Construed

generously, appellants raise two Rule 25(c) arguments — one more

substantive than the other. First, appellants seem to suggest

that Rule 25(c) can only be invoked when a transfer of interest

occurs during the pendency of the litigation, not after judgment

has been entered. Next, they argue that the district court

improperly relied on Rule 25(c) as a vehicle for joining them

because the Rule 25(c) inquiry cannot include veil piercing and

alter ego theories, which alter the parties' substantive rights.

Any such alteration, they say, must be presented in an independent

action.

17 Appellants also seem to argue that Rodríguez's motion
sought only to hold Benin, Acquanetta, and 18 Degrees North in
contempt for failure to pay the judgment without first making them
liable for the judgment itself. This proposition is belied by the
record. A review of Rodríguez's motion easily shows that he moved
to hold appellants liable to pay the judgment, specifically
requesting that the district court hold them "jointly and severally
liable" for the judgment entered against Coquico.

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 a) Clarifying the Standard of Review

In his opening salvo, Rodríguez argues that appellants

waived any and all arguments by failing to raise them below. See

Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003)

(noting that "it is a virtually ironclad rule that a party may not

advance [a new argument] for the first time on appeal"). We are

inclined to agree. As discussed above, Coquico, Benin, Acquanetta,

and 18 Degrees North had ample notice that the district court was

considering joining them to the action and holding them "jointly

and severally liable to pay the judgment." They likewise had full

opportunity to appear in the district court and to contest any

aspect of Rodríguez's motion, yet they filed no written opposition,

declined to attend the motion hearing, and raised not a single

argument below that the district court should refrain from holding

them liable for the judgment entered in favor of Rodríguez. As a

result, they likely waived, or, at the very least, forfeited, their

Rule 25(c) arguments. See United States v. Eisom, 585 F.3d 552,

556 (1st Cir. 2009) (explaining that "waiver implies an intention

to forgo a known right, whereas forfeiture implies something less

deliberate — say, oversight, inadvertence, or neglect in asserting

a potential right").

In response to Rodríguez's assertions of waiver,

appellants simply rehash their notice argument, contending that

they could not have raised a challenge to the district court's use

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of Rule 25(c) because "Rodríguez's motion below never recited [the

rule]." But, as discussed above, appellants did know that

Rodríguez's motion sought to join them to the action and to hold

them liable for the judgment and they made no argument — Rule 25(c)

related or otherwise — challenging the district court's authority

to grant their joinder. But even so, say appellants, waiver should

not be a "straightjacket," and they urge us to relax the rule.

Ultimately, however, we need not decide whether appellants'

arguments were waived because even assuming, favorably to

appellants, that their Rule 25(c) challenges were merely

forfeited, appellants' arguments falter under plain error review.

See Eisom, 585 F.3d at 556 (noting that "a waived claim is dead

and buried," but that a forfeited claim may "be resurrected on

appeal" under plain error review).

b) Rule 25(c) Primer

Rule 25(c), which governs the substitution of parties,

provides, in relevant part:

Rule 25. Substitution of Parties . . .

(c) Transfer of Interest. If an interest is
transferred, the action may be continued by or
against the original party unless the court, on
motion, orders the transferee to be substituted in
the action or joined with the original party.

Fed. R. Civ. P. 25(c). In other words, the rule serves as a

procedural mechanism to bring a successor in interest into court

when "it has come to own the property in issue." Negrón-Almeda v.

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Santiago, 579 F.3d 45, 53 (1st Cir. 2009) (quoting Maysonet–

Robles v. Cabrero, 323 F.3d 43, 49 (1st Cir. 2003)). For example,

as is the case here, the rule may be "invoked to substitute a

successor in interest who . . . obtained the assets of the

corporation against whom judgment had been rendered." Id.

(omission in original) (quoting Explosives Corp. of Am. v. Garlam

Enters. Corp., 817 F.2d 894, 906 (1st Cir. 1987)). Be that as it

may, "[t]he merits of the case and the disposition of the property

are still determined vis-a-vis the originally named parties."

Maysonet-Robles, 323 F.3d at 49 (quoting Minn. Mining & Mfg. Co.

v. Eco Chem, Inc., 757 F.2d 1256 (Fed. Cir. 1985)).

c) Appellants' Rule 25(c) Timing Argument

Disposing first of appellants' suggestion — also

referenced at oral argument — that Rule 25(c) is not available

when the transfer occurs after judgment has been entered, we

conclude that there was no error, much less plain error. See

United States v. Jimenez, 512 F.3d 1, 3 (1st Cir. 2007) ("Plain-

error review places a burden on an appellant to show (i) that an

error occurred, (ii) which was clear and obvious, (iii) which

affected his substantial rights, and (iv) which seriously impaired

the fairness, integrity, or public perception of the

proceeding.").

Rule 25(c) applies to actions that are "pending," but

this does not preclude substitution during subsequent proceedings

- 21 -
brought to enforce a judgment. See Negrón-Almeda, 579 F.3d at 52

("Rule 25(c) governs substitution where a party to a lawsuit

transfers an interest during the pendency of the lawsuit or after

judgment has been rendered."); Explosives Corp. of Am., 817 F.2d

at 907 ("Substitution may be ordered after judgment has been

rendered in the district court for the purpose of subsequent

proceedings to enforce judgment."); Panther Pumps & Equip. Co. v.

Hydrocraft, Inc., 566 F.2d 8, 23 (7th Cir. 1977) (citing 3B Moore's

Federal Practice P 25.03(1), at 25-101 (2d ed. 1977)) (explaining

that Rule 25 applies in subsequent proceeding to enforce a

judgment). A proceeding to enforce a judgment is "pending again,

and Rule 25 applies." Panther Pumps, 566 F.2d at 23.

It is also worth noting that in this case it is unclear

when the relevant transfer of interest even occurred. To hear

appellants tell it, the intellectual property was transferred to

Acquanetta almost four and a half years before Rodríguez instituted

the collection action (query then why Coquico was simultaneously

pursuing the copyright action), and Acquanetta granted 18 Degrees

North a license to use the intellectual property (breaching

Coquico's supposed exclusive license) nearly a year before

Rodríguez filed the collection action. So, it would be

disingenuous, to say the least, for appellants to argue now that

the district court erred in its application of Rule 25(c) because

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the transfer of interest occurred after judgment had been entered.

Regardless, the district court did not err.

d) Appellants' Veil Piercing and Alter Ego Arguments

Appellants' main argument — that the district court

improperly relied on Rule 25(c) to alter the parties' substantive

rights by invoking the doctrines of veil piercing and alter

ego - presents a more substantial question. After careful

consideration, however, we cannot say that the district court's

application of Rule 25(c) amounted to an error that was so "clear

or obvious," United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001), that the district court should have "act[ed] even without

an objection." Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 78

(1st Cir. 2010).

As a reminder, the district court joined 18 Degrees North

under Rule 25(c) as "a successor corporation and alter ego of

Coquico," and joined Benin and Acquanetta as alter egos of both

Coquico and 18 Degrees North. And appellants do not appear to be

challenging 18 Degrees North's joinder to the extent that it was

only joined as "a successor corporation" of Coquico. In fact, in

their briefing, appellants concede that a successor theory — as

opposed to veil piercing or alter ego theories — is properly

"within the ambit" of Rule 25(c), arguing only that "[w]here there

is no successor corporation . . . substitution and liability . . .

is not authorized by [the rule]." (emphasis added). Instead,

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appellants seem to argue only that the district court erred when

it used Rule 25(c) to join 18 Degrees North, Benin, and Acquanetta

as alter egos of Coquico.

The distinction, at least as appellants interpret it, is

the scope of their liability. They contend that under a successor-

in-interest analysis, which they concede is appropriate under Rule

25(c), a party's joinder should be limited to reaching the

"interest only." In other words, they argue that under a proper

application of Rule 25(c) the district court may join parties who

have come to own or control a corporation's assets (i.e., the

transferred interest), but only up to the value of those

transferred assets. Here, because the district court also

concluded that Coquico, 18 Degrees North, Benin, and Acquanetta

are all alter egos of each other — and therefore legally a single

entity — the district court did not limit their liability to the

value of Coquico's transferred assets, but found them jointly and

severally liable to Rodríguez for the entire $348,821.23 judgment

(plus costs and interest). Appellants view this as, essentially,

a substantive determination that is well beyond the scope of Rule

25(c).

Although not elegantly briefed, this is a thought-

provoking argument. Unfortunately for appellants, "[p]lain error

is one hard test to meet, particularly in civil litigation,"

Bielunas, 621 F.3d at 78, and appellants cite no cases, in this

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circuit or otherwise, that expressly limit Rule 25(c) joinder to

the amount of the transferred assets. To the contrary, several

other circuits have applied Rule 25(c) in almost exactly the same

manner as the district court did here. See, e.g., Panther Pumps,

566 F.2d at 27-28 (allowing the substitution of a corporation's

president under Rule 25(c) and holding him personally liable for

the full judgment where he had fraudulently attempted to avoid the

judgment by transferring the defendant-corporation's assets to a

new corporation); Explosives Corp. of Am., 817 F.2d at 907

(allowing substitution of a parent corporation under Rule 25(c)

and holding them "liable for the full amount of the judgment" as

"the real party in interest" because the parent "owned all of the

outstanding stock" and financed and controlled the litigation).

Of particular relevance, perhaps, is Minnesota Mining &

Manufacturing Company. In that case, the plaintiff, Minnesota

Mining and Manufacturing Co. (3M), obtained a default judgment

against Eco Chem, Inc. (ECI) for patent infringement. 757 F.2d at

1258. After the suit against ECI was instituted, ECI's president,

Stephanie Rynne, and her husband, George Rynne, who served as ECI's

secretary-treasurer, set up a new corporation, EcoChem Limited

(ECL), and transferred all of ECI's assets to the new company.

Id. at 1258-59. They exchanged their ECI shares for ECL shares,

"converted all of ECI's assets to ECL, including the formulae,

customer lists, trademarks and inventory," deposited ECI's checks

- 25 -
into ECL's accounts, and "informed their customers that ECL had

succeeded ECI." Id. (footnote omitted). 3M then moved to add

the Rynnes and ECL as parties to their infringement action pursuant

to Rule 25(c). Id. at 1259. After a hearing, the district court

granted 3M's motion and joined "the Rynnes and ECL 'as successors

in interest and alter egos' of ECI" and held them liable for the

full damages and attorney's fees. Id. On appeal, the Rynnes and

ECL challenged their joinder — mainly on jurisdictional grounds —

but the Federal Circuit affirmed and held "that the district court

reached the right result in rejecting [the Rynnes'] efforts at

avoidance or evasion . . . ." Id. at 1258.

What this means for us is: when we have never expressly

limited Rule 25(c) joinder to the amount of the transferred assets,

and other circuits, especially on such similar facts, have

sanctioned the use of Rule 25(c) to join parties as alter egos and

hold them liable for the full judgment, "any error cannot be plain

or obvious." United States v. Diaz, 285 F.3d 92, 96 (1st Cir.

2002). As such, we cannot say that the district court plainly

erred in its application of the rule.

Application aside, appellants do not appear to challenge

the district court's conclusion that Benin, 18 Degrees North, and

Coquico "are all alter egos of one another." However, they do

seem to argue — in a single parenthetical — that the district court

erred in concluding that Acquanetta was "the alter ego of a party."

- 26 -
Regardless, the district court did not err in finding any of the

appellants to be alter egos of one another. Indeed, 18 Degrees

North is, by nearly every measure, a mere continuation of Coquico.18

See Explosives Corp. of Am. v. Garlam Enters. Corp., 615 F. Supp.

364, 368 (D.P.R. 1985) (quoting Dayton v. Peck, Stow & Wilcox Co.

(Pexto), 739 F.2d 690, 693 (1st Cir. 1984)) (describing key

elements of continuation). It is registered under the name "18

Degrees North, LLC, d/b/a Coquico." The companies share an

address, a bank account, and a website. They have the same

inventory and clients — due, in part, to Acquanetta's apparent

willingness to grant both companies an "exclusive" license to use

her intellectual property. An order placed with Coquico is filled

by 18 Degrees North and Coquico regularly transfers money to cover

18 In reaching this conclusion, the district court applied
Puerto Rico law. Appellants argue that the district court should
have applied Pennsylvania law. In this unusual case, the
application of Pennsylvania versus Puerto Rico law may be a
distinction without a difference. Compare Lumax Indus., Inc. v.
Aultman, 669 A.2d 893, 895 (Pa. 1995) with Explosives Corp. of
Am., 615 F. Supp. at 368. That said, we find that the district
court did not plainly err in applying Puerto Rico law. Applying
Puerto Rico's choice of law rules, the district court reasonably
determined that Puerto Rico had the "most significant contacts"
with the action. "Among the contacts to consider are the parties'
place of incorporation and of business, the place where the
injurious conduct occurred, the place where the injury
materialized, and the place where the relationship between the
parties is centered." Goya Foods, Inc. v. Unanue-Casal, 982 F.
Supp. 103, 107 (D.P.R. 1997). Here, the majority of Coquico's
sales were in Puerto Rico, the parties' relationships were centered
in Puerto Rico, and the injury occurred there. As such, the
district court did not err in applying Puerto Rico law.

- 27 -
18 Degrees North's financial obligations. Benin is the principal

shareholder and chief executive of both companies, and,

astonishingly, he admitted under oath in the bankruptcy proceeding

that 18 Degrees North was essentially the same business as Coquico,

"minus [Rodríguez's] judgment." Consequently, it was no great

leap for the district court to conclude that Benin employed 18

Degrees North as a mechanism to continue Coquico's business absent

the specter of Rodríguez's judgment.

Likewise, the district court did not err in concluding

that Benin and Acquanetta are alter egos of Coquico and 18 Degrees

North. See United States v. JG-24, Inc., 331 F. Supp. 2d 14, 63

(D.P.R. 2004), aff'd, 478 F.3d 28 (1st Cir. 2007) (listing factors

courts should consider to determine whether to disregard the

corporate form). Benin, as the sole shareholder and principal of

Coquico, exercised total control over Coquico (and then 18 Degrees

North) and did not maintain Coquico's corporate form, comingling

Coquico's funds with his own accounts. Coquico regularly paid

Benin and Acquanetta's personal expenses, despite the fact that

Acquanetta was not even an employee of the company. And, in myriad

other ways, the record demonstrates that Benin and his family

routinely treated Coquico's coffers as their own, charging

personal expenses and shopping trips to the company. Accordingly,

the district court did not err in concluding that Coquico, 18

- 28 -
Degrees North, Benin, and Acquanetta "are all alter egos of each

other."19

In any event, even if the district court had erred, under

plain error review, "we need not intervene unless the error . . .

seriously impugn[ed] the 'fairness, integrity, or public

reputation of judicial proceedings.'" Bielunas, 621 F.3d at 78

(quoting United States v. Roy, 506 F.3d 28, 30 (1st Cir.2007)).

Given appellants' conduct, we cannot conclude that the district

court's application of the rule — using it to hold appellants

jointly and severally liable for Rodríguez's judgment — impugns

the fairness of these proceedings. If anything, the opposite may

be true as the record supports the district court's conclusion

that Benin and Acquanetta engaged in the fraudulent transfer of

Coquico's intellectual property from Coquico to Acquanetta — and

from Acquanetta to 18 Degrees North — for the sole purpose of

making Coquico judgment proof.20 To effectuate this fraudulent

19Given our conclusion that the district court did not plainly
err in its application of Rule 25(c) we will not consider whether
any such error affected appellants' "substantial rights."
20 If Coquico's copyright infringement action against
Rodríguez was honestly pursued after Coquico's transfer, through
Benin, of its intellectual property to Acquanetta, that may amount
to a fraud on the court. See Aoude v. Mobil Oil Corp., 892 F.2d
1115, 1118 (1st Cir. 1989) ("A 'fraud on the court' occurs where
it can be demonstrated, clearly and convincingly, that a party has
sentiently set in motion some unconscionable scheme calculated to
interfere with the judicial system's ability impartially to
adjudicate a matter by improperly influencing the trier or unfairly
hampering the presentation of the opposing party's claim or
defense."). Alternatively, if Coquico did not transfer its

- 29 -
transfer, Benin and Acquanetta altered notarized documents and

appear to have submitted fraudulent assignment papers to the

Copyright Office, the district court, and the bankruptcy court.

Moreover, the transfer of assets from Coquico to Acquanetta did

not end the shenanigans. Even as appellants tell it, Benin and

Acquanetta breached Coquico's so-called "exclusive" licensing

agreement by also licensing 18 Degrees North to use Acquanetta's

intellectual property. This breach of Coquico's licensing

agreement also seemed to serve no other purpose than to further

effectuate the transfer of Coquico's corporate assets, including

its inventory and customers, to Benin's other company. Nor, we

note, does it appear that 18 Degrees North paid Coquico for the

use of its name, website, and customer lists.

Under these extraordinary circumstances, we cannot say

that the district court plainly erred in joining 18 Degrees North,

Benin, and Acquanetta to the action and holding them jointly and

severally liable for the judgment pursuant to Rule 25(c). Further,

as noted above, even if an error occurred, because it did not

"seriously impair[] the fairness, integrity, or public perception

of the proceeding," Jimenez, 512 F.3d at 3, the district court did

not plainly err, see United States v. Caraballo-Rodriguez, 480

intellectual property before pressings its copyright infringement
claim, Benin's and Acquanetta's actions here may amount to the
same.

- 30 -
F.3d 62, 70 (1st Cir. 2007) (explaining that a no-plain-error

holding does not constitute a "ruling on the merits").

3. The Remaining Jurisdictional Argument

Finally, here, appellants argue that the district court

lacked personal jurisdiction over them because "they were not

parties to the original judgment" and have insufficient contacts

with the forum. But once personal jurisdiction is established

over the original party, it "is retained over Rule 25(c) successors

in interest," Maysonet-Robles, 323 F.3d at 49, as long as "the

substituted party had an opportunity to challenge its joinder or

substitution." Explosives Corp. of Am., 817 F.2d at 906 (citing

Minn. Mining & Mfg. Co., 757 F.2d at 1262–63 and 7C C. Wright, A.

Miller & M. Kane, Fed. Prac. & Proc. Civ. § 1958 at 559–60 (2d ed.

1986)). "Were this not so, the owners of the property could merely

transfer legal ownership of the assets from one shell corporation

to another in a different jurisdiction, putting a party whose

initial suit satisfied the jurisdictional requirements to the

immense burden of chasing the involved assets from courtroom to

courtroom." Minn. Mining & Mfg. Co., 757 F.2d at 1263. As we

explained, appellants here had notice that Rodríguez sought to

hold them liable for the judgment entered against Coquico and an

opportunity to challenge their joinder before the district court.

Accordingly, personal jurisdiction was properly acquired over

appellants as Rule 25(c) successors in interest.

- 31 -
 B. The Contempt Issue

Benin also argues that the district court erred in

finding him in civil contempt and imposing a $5,000 sanction for

failure to attend the hearing on Rodríguez's joinder motion.

Specifically, Benin argues that although the district court

categorized the contempt finding as "civil," it was actually

criminal in nature and, therefore, he was entitled to additional

due process protections. "Mindful that the district court enjoys

wide latitude in its choice of sanctions," AngioDynamics, Inc. v.

Biolitec AG, 780 F.3d 420, 426 (1st Cir. 2015), cert. denied, 136

S. Ct. 535 (2015), we conclude that the district court did not

abuse its discretion here.21 See Project B.A.S.I.C. v. Kemp, 947

F.2d 11, 15-16 (1st Cir. 1991) (explaining that the district

court's "ultimate finding on contempt is reviewed for abuse of

discretion," while the district court's fact finding is reviewed

for clear error, and legal questions and mixed questions of fact

and law are reviewed de novo).

To determine whether the imposition of contempt

sanctions is civil or criminal, we must "look to the purpose and

character of the sanctions imposed, rather than to the label given

to the proceeding by the court below." In re Kave, 760 F.2d 343,

351 (1st Cir. 1985). "The purpose of a criminal contempt

21Rodríguez does not argue that appellants waived their
contempt arguments.

- 32 -
proceeding is the vindication of the court's authority by punishing

for a past violation of a court order," while "civil contempt is

imposed to coerce present or future compliance with an order of

the court." Id. (emphasis omitted). But "[t]here is no

dichotomous split between coercion and punishment . . . and a civil

contempt sanction may evidence a punitive flavor." AngioDynamics,

780 F.3d at 426.

Here, although Benin is correct that the contempt order

was not reparative and that he was not given the opportunity to

bring himself into compliance with the district court's order,

both of which suggest a punitive purpose, the sanction imposed

also seemed intended to coerce his future compliance with the

district court's orders. To wit, the district court found Benin

in contempt of its order to appear, but also explained that it was

imposing the sanction because of Benin's continued "efforts to

avoid the judgment in this case," suggesting that the district

court may have sought to coerce Benin's future compliance with its

efforts to enforce the judgment.

Indeed, in explaining its decision not to impose a

sanction on Acquanetta, the district court stated that if

Acquanetta continued to violate the district court's orders that

she too could face sanctions in the future. The implication being,

of course, that Acquanetta and Benin would face additional

sanctions for continued noncompliance. This suggests that the

- 33 -
district court was less concerned with punishment and more

concerned with coercing Benin's and Acquanetta's future compliance

with its orders. See Int'l Union, United Mine Workers of Am. v.

Bagwell, 512 U.S. 821, 829 (1994) ("A contempt fine . . . is

considered civil and remedial if it . . . 'coerce[s] the defendant

into compliance with the court's order . . . .'" (citation

omitted)). After careful consideration of the purpose and

character of the sanction imposed in this case, therefore, we are

satisfied that the district court acted within its discretion in

imposing civil, not criminal, sanctions on Benin.

As we read appellants' arguments, that ends the matter.

They do not seem to challenge the district court's contempt finding

beyond contesting the nature of the sanctions imposed. However,

for the sake of completeness, to the extent that appellants do

seek to challenge the merits of the district court's civil contempt

finding, we will review in brief.

To prove civil contempt, the moving party — Rodríguez —

must show by clear and convincing evidence that: "(1) the alleged

contemnor had notice of the order, (2) 'the order was clear and

unambiguous,' (3) the alleged contemnor 'had the ability to comply

with the order,' and (4) the alleged contemnor violated the order."

Hawkins v. Dep't of Health & Human Servs. for N.H., Comm'r, 665

F.3d 25, 31 (1st Cir. 2012) (quoting United States v. Saccoccia,

433 F.3d 19, 27 (1st Cir. 2005)). Here, appellants received notice

- 34 -
of Rodríguez's motion to hold them liable for the judgment "on

penalty of contempt" and of the district court's order setting the

hearing and mandating that "[f]ailure to appear [would] result in

sanctions." The order to appear was clear and unambiguous.

Appellants argued below that they did not have the means to comply

with the order, but the record adequately supports the district

court's conclusion that appellants had the wherewithal to attend

and that their "protestations of penury" were not credible given

their ability to hire an attorney in the bankruptcy proceeding

that had taken place only days before. For these reasons, we

determine that the district court did not abuse its discretion in

finding appellants in civil contempt.

III. CONCLUSION

In sum, we conclude that the district court did not

plainly err in joining Benin, Acquanetta, and 18 Degrees North

under Rule 25(c) as alter egos of Coquico and holding them liable

for the judgment entered in favor of Rodríguez. We likewise affirm

the district court's order finding appellants in civil contempt

and imposing a $5,000 sanction on Benin. Costs to Rodríguez.

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