Fontanillas-Lopez v. Morell Bauzá Cartagena & Dapena, LLC

United States Court of Appeals
For the First Circuit

No. 15-1326

LOURDES DEL ROSARIO FONTANILLAS-LOPEZ,

Plaintiff, Appellant,

MILDRED M. LOPEZ-MARTINEZ; LUIS A. FONTANILLAS-PINO,

Plaintiffs,

v.

MORELL BAUZÁ CARTAGENA & DAPENA, LLC; PEDRO A. MORELL-LOSADA;
ANTONIO BAUZÁ SANTOS; EDGARDO CARTAGENA-SANTIAGO; RAMÓN E.
DAPENA-GUERRERO; LOURDES M. VÁZQUEZ,

Defendants, Appellees.

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

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges,
and McAuliffe,* District Judge.

Roberto Márquez-Sánchez on brief for appellant.
Rosangela Sanfilippo-Resumil on brief for appellees.

* Of the District of New Hampshire, sitting by designation.
August 5, 2016
 KAYATTA, Circuit Judge. In March 2012, Lourdes del

Rosario Fontanillas-Lopez ("Fontanillas") filed sex discrimination

claims under federal and Puerto Rico law against her former

employer, Morell Bauzá Cartagena & Dapena, LLC ("MBCD"), and

several individual defendants. Following discovery, the district

court granted summary judgment in favor of MBCD on Fontanillas's

federal claims and, having dismissed all of Fontanillas's other

claims, later awarded attorneys' fees to the defendants.

Fontanillas moved for relief from the summary judgment order and

for reconsideration of the fees award. The district court denied

both motions. On appeal, Fontanillas challenges the denial of

both motions, as well as the denial of her request to exceed the

normal page limits in filing those motions. She also directly

challenges the award of attorneys' fees to the defendants. For

the following reasons, we affirm.

I. Background

Fontanillas began working as an attorney in MBCD's Tax

Department in January 2009.1 Fontanillas-Lopez v. Morel Bauza

Cartagena & Dapena LLC ("Fontanillas I"), 995 F. Supp. 2d 21, 28

(D.P.R. 2014). Fontanillas's supervisor soon grew concerned with

Fontanillas's poor relationships with her female co-workers,

1 At that time, MBCD was operating under a different name.
Fontanillas-Lopez v. Morel Bauza Cartagena & Dapena LLC, 995
F. Supp. 2d 21, 28 (D.P.R. 2014). For simplicity, we refer to
Fontanillas's former employer as MBCD throughout.

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substandard work performance, and failure to comply with MBCD

rules. Id. at 40. On the supervisor's recommendation, MBCD's

capital partners decided in August 2011 to terminate Fontanillas.

Id. Several months later, Fontanillas filed a complaint against

MBCD and its co-owners and administrator in federal district

court.2 Fontanillas's complaint raised sexual harassment, gender

discrimination, and retaliation claims under Puerto Rico law and

Title VII of the federal Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq., as well as claims sounding in Puerto Rico

employment and tort law.

Almost a year into the proceedings, during the course of

discovery, the individual defendants moved to dismiss the federal

claims against them. The district court granted this motion over

Fontanillas's opposition, leaving MBCD as the lone remaining

defendant on Fontanillas's federal claims. Several months

thereafter, the defendants moved for summary judgment on all

remaining claims. In a thorough written opinion, the district

court granted summary judgment in favor of MBCD on Fontanillas's

federal claims and dismissed Fontanillas's supplemental claims

under Puerto Rico law without prejudice. Fontanillas I, 995 F.

Supp. 2d at 53.

2
Fontanillas's parents were also initially plaintiffs in this
suit. However, at the parents' request, the district court
dismissed all their claims with prejudice.

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 Following entry of judgment on February 7, 2014, the

defendants moved for attorneys' fees. The district court, in a

November 18, 2014, written opinion, accepted the defendants'

argument that Fontanillas had continued to litigate even after she

had been "duly apprised" during the course of discovery that "her

claims were devoid of any merit." Fontanillas-Lopez v. Morel Bauza

Cartagena & Dapena LLC ("Fontanillas II"), 59 F. Supp. 3d 420, 425

(D.P.R. 2014). In consequence, the district court found

Fontanillas liable to the defendants for the $53,662.50 in

attorneys' fees they had accrued following the point at which, in

the district court's estimation, Fontanillas should have been

aware that she held a losing hand. Id. at 427.

On December 16, 2014, Fontanillas filed a 40-page motion

for reconsideration of the attorneys' fees award under Federal

Rule of Civil Procedure 59(e)3 ("the Rule 59(e) motion") and a

motion for relief from the underlying summary judgment order under

Federal Rule of Civil Procedure 60(b) ("the Rule 60(b) motion"),

the latter of which was accompanied by a 39-page memorandum.4

3 Fontanillas characterized this motion as a motion pursuant
to "Federal Rule of Civil Procedure 59 and/or 60." We construe
the motion to be a motion to alter or amend the judgment pursuant
to Federal Rule of Civil Procedure 59(e). See Marie v. Allied
Home Mortg. Corp., 402 F.3d 1, 7 (1st Cir. 2005).
4 MBCD observes that certain exhibits were in fact filed on
December 17, 2014, which fell outside the 28-day period following
the attorneys' fees award that constituted the only window within
which a Rule 59(e) motion as to that award could be filed. See
Fed. R. Civ. P. 59(e). But these exhibits were filed in connection

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Because these filings exceeded the 25-page limit applicable to

certain motions and memoranda under the district court's local

rules, see D.P.R. Civ. R. 7(d), Fontanillas filed a contemporaneous

motion for leave to submit filings in excess of the allowed pages.

On January 23, 2015, the district court denied Fontanillas leave

to exceed the page limits and so struck her Rule 59(e) motion and

her Rule 60(b) motion, with its accompanying memorandum, from the

record. The order denying leave invited Fontanillas to re-file

compliant motions, which she did six days later, on January 29,

2015.5

While awaiting decision on these motions, Fontanillas

filed on February 23, 2015, a notice of appeal as to the

November 18, 2014, award of attorneys' fees and the January 23,

2015, denial of leave to file in excess of the local page limits.

with Fontanillas's Rule 60(b) motion, which was not constrained by
the same filing deadline. See id. 60(c). Accordingly, we need
not address the consequence, if any, of a tardy exhibit filed
appurtenant to a timely motion.
5 Fontanillas does not explain her assumption that her filings
were subject to the 25-page limit applicable under the local rules
to "motions to dismiss, for judgment on the pleadings, requesting
summary judgment, for injunctive relief, or appeals from a decision
by a magistrate judge," and not to the 15-page limit applicable to
"[n]on-dispositive motions and memoranda or oppositions to those
motions." D.P.R. Civ. R. 7(d). Neither the defendants nor the
district court intimated below that Fontanillas's newly filed Rule
59(e) motion and memorandum in support of the Rule 60(b) motion,
which were twenty-five and twenty pages, respectively, were
overlength, so we, like Fontanillas, assume that her January 29,
2015, filings were compliant.

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Just after the initial appellate briefing schedule had been set,

the district court issued an opinion and order on September 30,

2015, denying Fontanillas's Rule 59(e) and 60(b) motions.

Fontanillas-Lopez v. Morel Bauza Cartagena & Dapena LLC

("Fontanillas III"), 136 F. Supp. 3d 152, 160 (D.P.R. 2015).

Fontanillas then timely amended her notice of appeal to include

challenges to these denials. In all, Fontanillas asks us to review

four of the district court's rulings: (1) the denial of leave to

submit filings in excess of the local page limits; (2) the award

of attorneys' fees to the defendants; (3) the denial of her Rule

59(e) motion to reconsider that award; and (4) the denial of her

Rule 60(b) motion for relief from the underlying summary judgment

order. We consider these rulings in turn.

II. Analysis

A. Leave to Exceed Local Page Limits

Fontanillas's first claim of error is that the district

court abused its discretion in declining to allow her Rule 59(e)

motion and the memorandum in support of her Rule 60(b) motion to

exceed the page limits established by the district court's local

rules. Fontanillas recognizes that district courts' "broad

latitude in administering local rules" entitles those courts "to

demand adherence to specific mandates contained in th[ose] rules."

Air Line Pilots Ass'n v. Precision Valley Aviation, Inc., 26 F.3d

220, 224 (1st Cir. 1994). But Fontanillas seeks to turn this broad

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discretion to her advantage, arguing that because the District of

Puerto Rico's local rules permit a district court to waive the

applicable page limits "by prior leave," D.P.R. Civ. R. 7(d), the

district court here had "ample latitude" to allow her overlength

filings.

Fontanillas's argument flips abuse-of-discretion review

on its head by suggesting that we may reverse the district court

merely because it could have exercised its "ample latitude"

differently. This is not the prerogative of an appellate court.

Cf. NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7 (1st Cir. 2002)

(finding it "within the district court's discretion" to enforce

local rules where "the result does not clearly offend equity").

Fontanillas did not offer the district court any reason to grant

an exception to the usual page restrictions beyond the bare

assertion that her arguments required her to "address numerous

issues of fact and quote extensively from the evidence in the

case." Nor does Fontanillas provide a more robust explanation on

appeal as to why she required the extra pages she sought. Instead,

she observes that the district court had previously granted the

defendants' motion to file an overlength motion for summary

judgment and suggests that "[w]hat's good for the goose, is good

for the gander." The district court, though, was within its

discretion to find that the defendants, having the burden of

persuasion in trying to prove a negative (i.e., that there are no

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disputed issues of material fact supportive of a discrimination

claim) and the need to anticipate arguments that might or might

not be made in response, presented a more persuasive case for an

exception to the usual page limits than did Fontanillas. Under

these circumstances, the district court did not abuse its wide

discretion in holding Fontanillas to the default standards the

local rules establish as appropriate for the typical litigant.

B. Attorneys' Fees

1. Jurisdiction

Fontanillas next appeals both the award of attorneys'

fees to the defendants and the district court's denial of her

Rule 59(e) motion for reconsideration of that award. The

defendants accept that this court has jurisdiction over the latter

appeal but argue that we do not have jurisdiction over the former.

This distinction could matter: on appeal from the denial of a

Rule 59(e) motion, it is not fully settled to what extent the

reviewing court may revisit the underlying judgment, see McKenna

v. Wells Fargo Bank, N.A., 693 F.3d 207, 213–14 & n.5 (1st Cir.

2012), and, in any event, "Rule 59(e) relief is granted sparingly,

and only when 'the original judgment evidenced a manifest error of

law, if there is newly discovered evidence, or in certain other

narrow situations,'" Biltcliffe v. CitiMortgage, Inc., 772 F.3d

925, 930 (1st Cir. 2014) (quoting Global Naps, Inc. v. Verizon New

Eng., Inc., 489 F.3d 13, 25 (1st Cir. 2007)); see also Ira Green,

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Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 28 (1st Cir. 2014)

("[R]evising a final judgment [pursuant to Rule 59(e)] is an

extraordinary remedy . . . .").

Whether we have jurisdiction to entertain the merits of

Fontanillas's challenge to the attorneys' fees award turns on

whether the notice of appeal seeking review of that award was

timely. A civil appellant must typically file a notice of appeal

"within 30 days after entry of the judgment or order appealed

from." Fed. R. App. P. 4(a)(1)(A). The district court entered

its order granting attorneys' fees to the defendants on

November 18, 2014, and Fontanillas filed her notice of appeal as

to that order on February 23, 2015--well outside the usual 30-day

window. Without more, this timeline would defeat our jurisdiction

over the appeal. See McKenna, 693 F.3d at 213 ("[I]t is settled

that a civil appeal filed out of time is barred, [and] that the

error in timing cannot be waived . . . .").

There is a relevant exception, however. When a litigant

files a timely Rule 59(e) motion asking the district court to

reconsider a judgment, "the time to file an appeal" of the

underlying judgment "runs . . . from the entry of the order

disposing of" the Rule 59(e) motion. Fed. R. App. P.

4(a)(4)(A)(iv). Here, Fontanillas filed a Rule 59(e) motion within

the requisite 28 days, see Fed. R. Civ. P. 59(e), after entry of

the fees award. The district court then "dispos[ed] of," Fed. R.

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App. P. 4(a)(4)(A)(iv), that timely motion on January 23, 2015, by

rejecting it as overlength, and Fontanillas filed her notice of

appeal of the underlying fees award within 30 days of that

disposition. It would seem, then, that Fontanillas has

appropriately availed herself of an exception to the normal

jurisdictional window for appeal.

The defendants nonetheless respond that when the

district court rejected Fontanillas's timely filed Rule 59(e)

motion as overlength, it struck that motion from the record

entirely. By taking this step, the defendants argue, the district

court created a record that treated Fontanillas's Rule 59(e) motion

as though it had never been filed and, in so doing, rendered

Fontanillas's submission of that timely but noncompliant motion

incapable of having delayed, or "tolled," the beginning of the 30-

day appeal window triggered by the November 18, 2014, fees award.

Because we have already upheld the district court's decision to

restrict Fontanillas's timely but noncompliant Rule 59(e) motion

to the ordinarily applicable page limits, and because Fontanillas

raises no challenge to the district court's act of striking that

motion as the specific means of enforcing its decision, the

determinative question is whether, as defendants urge, the order

striking Fontanillas's timely motion from the record vitiated the

tolling effect that the motion would have had if the district court

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had simply denied it, whether on the merits or for noncompliance

with the local rules, without striking it.

At first glance, our decision in Air Line Pilots Ass'n

v. Precision Valley Aviation, Inc., 26 F.3d 220 (1st Cir. 1994),

would seem to suggest so. In Air Line Pilots, the appellant had

filed a timely Rule 59(e) motion in the district court, seeking

reconsideration of a summary judgment order. Id. at 222. The

motion, however, failed to comply with an applicable local rule.

Id. The clerk of court refused to accept the noncompliant motion

for filing, and the district court endorsed the clerk of court's

exclusion of the motion from the record. Id. Although the

appellant then submitted a compliant Rule 59(e) motion, the

statutory window for filing original Rule 59(e) motions had closed

in the interim, and the district court rejected the compliant

motion as untimely. Id. at 222–23.

The appellant filed a notice of appeal as to the

underlying summary judgment order within 30 days of the order

rejecting the compliant but untimely Rule 59(e) motion (though not

within 30 days of the summary judgment order itself nor of the

district court's endorsement of the clerk's exclusion of the

noncompliant filing from the record). Id. at 223. We held that

we lacked jurisdiction over the appeal. Id. at 226. An untimely

Rule 59(e) motion does not toll the 30-day window for filing an

appeal, id. at 223–24, and we held that the untimely Rule 59(e)

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motion could not relate back to the filing date of the timely but

noncompliant Rule 59(e) motion because--critically--that earlier

motion, having never become part of the record, was "a nullity,"

id. at 225.

The defendants seize upon this characterization of a

motion that never became part of the record and seek to extend it

to a motion that was filed and then later struck. But central to

the reasoning in Air Lines Pilots was a critical factor altogether

absent here. Specifically, the New Hampshire Local Rules at issue

in Air Line Pilots expressly stated that "[t]he Clerk shall not

accept any motions not in compliance with procedures outlined in

these Rules." Id. at 224 n.5 (alteration in original) (quoting

D.N.H. Civ. R. 11(a)(1) (1994)). That provision, we found, both

confirmed that "the local rules do not accord a noncompliant motion

any force or effect," id. at 225, and provided an "explicit[]

warn[ing]" or "red flag[]" for litigants as to the inevitable

consequence of noncompliance, id. at 224. Eliminating any

"lingering doubt" as to the local rules' treatment of noncompliant

motions was the district court's statement in its order refusing

the noncompliant motion "that the old motion was dead and that a

new motion, having a new filing date, would be required." Id. at

225.

Here, in contrast, there is nothing in Puerto Rico's

local rules warning a litigant that an overlength motion or, for

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that matter, an otherwise noncompliant motion, such as a motion

that lacks page numbers or a motion that is not "stapled or

otherwise attached," D.P.R. Civ. R. 7(d), is to be given no tolling

effect whatsoever, even if initially accepted for filing. Nor did

the district court construe the local rules to require as much.

The district court's order striking Fontanillas's noncompliant

Rule 59(e) motion reads:

ORDER denying . . . Motion for Leave to File
motion in excess of pages allowed by local
rule [7(d)]. [Fontanillas's Rule 59(e)
motion, as well as her Rule 60(b) motion and
accompanying memorandum] are hereby stricken
from the record. Should the plaintiff wish to
re-file these motions, they must comply with
the local rules' page limit.

Nothing in this order implies that the motion was wholly without

effect during the period it sat, as in fact filed, under the

district court's consideration.

That said, Air Line Pilots did suggest in dicta that New

Hampshire's local rules may not have been dispositive to that

case's outcome. The Air Line Pilots court observed that the local

rule directing the clerk of court to refuse any noncompliant

filings was in tension with a then-current provision of the Federal

Rules of Civil Procedure--substantially identical to today's

Rule 5(d)(4)--which provided that "[t]he clerk shall not refuse to

accept for filing any paper presented for that purpose solely

because it is not presented in proper form as required by [the

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Federal Rules of Civil Procedure] or any local rules or practices."

Air Line Pilots, 26 F.3d at 227 n.7 (alteration in original)

(quoting Fed. R. Civ. P. 5(e) (1994)). Observing that the

appellant had waived any reliance on the federal rule, the court

nevertheless opined in dicta that this waiver was likely harmless

because the district court's endorsement of the clerk's refusal to

file the noncompliant motion "le[ft] the record in essentially the

same posture as though the motion had been received and then

stricken." Id. The court thus implied that, even had the

appellant successfully challenged New Hampshire's local rule, the

district court would have had authority to nullify the noncompliant

Rule 59(e) motion and that striking the motion from the record

would have been equivalent to doing so.

Whatever the force of this dicta, it was issued in the

context of a different jurisdictional question than the one we

face here. In Air Line Pilots, the appellant had not filed a

notice of appeal within 30 days of the district court's endorsement

of the clerk's refusal to file the noncompliant Rule 59(e) motion.

It was therefore immaterial whether that endorsement was itself an

"order disposing of," Fed. R. App. P. 4(a)(4)(A), a Rule 59(e)

motion: even had we found it to be such an order, such that it--

rather than the underlying summary judgment order--triggered the

onset of the 30-day window for appeal, the appellant's notice of

appeal would have been untimely regardless. Accordingly, the

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appellant in Air Line Pilots relied instead on the argument that

a later-filed compliant motion could relate back to the date of a

timely but noncompliant motion that had not become part of the

record, and it was this argument that Air Line Pilots rejected.

We need not determine, then, whether Air Line Pilots'

rejection of that argument controls where, as here, there is no

local rule providing that a noncompliant motion is a nullity or

indeed where the district court specifically invites re-filing

after striking a noncompliant motion. Cf. Lexon Ins. Co. v. Naser,

781 F.3d 335, 339–40 (6th Cir. 2015) (an invited revision of a

timely but noncompliant Rule 59(e) motion related back to the

filing date of the original, noncompliant motion, even though that

original motion had been stricken from the record). Even assuming

that it does, the district court's order rejecting Fontanillas's

Rule 59(e) motion for its noncompliance with the local rules was

an "order disposing of" that motion, Fed. R. App. P.

4(a)(4)(A)(iv), notwithstanding the fact that the order

"dispos[ed] of" the Rule 59(e) motion by, in particular, striking

it from the record. Interpreting the order not as a disposition

of a botched motion but rather as some sort of incantation that

not only voided the noncompliant Rule 59(e) motion's future effects

but also conclusively established that the motion had never existed

in the first place would render the order striking that nonexistent

motion a logical incongruity and, more importantly, would allow

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metaphysical niceties to deprive the parties of a resolution on

the merits. See Krupski v. Costa Crociere S. p. A., 560 U.S. 538,

550 (2010) (describing "the preference expressed in the Federal

Rules of Civil Procedure in general . . . for resolving disputes

on their merits").6

We therefore hold that, at least barring any sort of

contrary contextual indicators in the local rules or in the

district court's interpretation of those rules, a district court's

order striking a Rule 59(e) motion from the record for

noncompliance with local rules is an order disposing of that

motion, such that the order's entry represents the beginning of

the 30-day window for appealing the judgment that forms the

underlying subject of the Rule 59(e) motion. Therefore,

Fontanillas's noncompliant Rule 59(e) motion of December 16, 2014,

tolled the onset of the 30-day window for appeal of the attorneys'

fees award until the district court disposed of that motion by

striking it from the record on January 23, 2015. As a result,

6
We recognize that the Sixth Circuit's opinion in Lexon
Insurance Co. v. Naser, 781 F.3d 335 (6th Cir. 2015), declined to
treat a district court's order striking a noncompliant Rule 59(e)
motion as an order "disposing of" that motion where the order
invited re-filing and so "lacked the requirements of finality
integral to an order 'disposing of' a motion," id. at 339. Lexon,
however, rejected the proposition that we here assume to be true
--that even an expressly invited revision of a timely but
noncompliant motion that has been struck from the record does not
relate back to the date of the original, timely motion, see id. at
339–40--so that case's persuasive force is correspondingly
attenuated.

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Fontanillas's February 23, 2015, notice of appeal as to the fees

award was timely filed, and, our jurisdiction assured, we may now

turn to the merits of that appeal.

2. Merits

The default rule in American litigation is that all

litigants must pay their own attorneys' fees. See Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 415 (1978). Title VII, however,

overrides the default by expressly providing that "[i]n any action

or proceeding under [Title VII] the court, in its discretion, may

allow the prevailing party . . . a reasonable attorney's fee

(including expert fees) as part of the costs." 42 U.S.C.

§ 2000e-5(k). Fontanillas does not dispute that the defendants

were the "prevailing part[ies]," id., in her discrimination suit.

Therefore, in line with the text of Title VII, we ask whether the

district court acted within its discretion in awarding attorneys'

fees to the prevailing defendants. See EEOC v. Caribe Hilton

Int'l, 821 F.2d 74, 76 (1st Cir. 1987) (per curiam).

The Supreme Court has provided specific guidance as to

"what standard should inform a district court's discretion in

deciding whether to award attorney's fees to a successful defendant

in a Title VII action." Christiansburg Garment Co., 434 U.S. at

417 (emphasis omitted). Because excessive generosity toward

prevailing defendants would "substantially add to the risks

inhering in most litigation and would undercut the efforts of

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Congress to promote the vigorous enforcement of the provisions of

Title VII" by discouraging private plaintiffs, "a plaintiff should

not be assessed his opponent's attorney's fees unless a court finds

that his claim was frivolous, unreasonable, or groundless, or that

the plaintiff continued to litigate after it clearly became so."

Id. at 422. Thus, "an award of fees in favor of a prevailing

plaintiff in a civil rights suit is 'the rule, whereas fee-shifting

in favor of a prevailing defendant is the exception.'" Lamboy-

Ortiz v. Ortiz-Vélez, 630 F.3d 228, 236 (1st Cir. 2010) (quoting

Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615,

618 (1st Cir. 1994)).

In finding that this case was such an exception, the

district court did not express the view that Fontanillas's suit

was frivolous when filed. See Fontanillas II, 59 F. Supp. 3d at

423. Rather, it determined that this case was among the "rare

occasions," Lamboy-Ortiz, 630 F.3d at 241, in which litigation

that was not necessarily frivolous at the outset continued past

the moment at which it became clear that the claims asserted were

"frivolous and without foundation," Fontanillas II, 59 F. Supp. 3d

at 425. That revelatory moment, according to the district court,

was the taking of Fontanillas's deposition testimony.7 Id.

7
Although Fontanillas's deposition on October 3 and 4, 2012,
was the point beyond which the district court found continued
litigation to be frivolous, the defendants requested fees only for
work done after December 17, 2012, the date of a letter they sent

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 With the arguable exception of several beside-the-point

and underdeveloped assertions made in appealing the denial of her

Rule 60(b) motion, Fontanillas offers no challenge to the district

court on this point. Making no merits-based argument against the

district court's finding that her deposition testimony revealed

her suit to be frivolous, she simply warns against "the

understandable temptation to engage in post hoc reasoning by

concluding that, because a plaintiff did not ultimately prevail,

his action must have been unreasonable or without foundation."

Christiansburg Garment Co., 434 U.S. at 421–22. But Fontanillas

gives us no reason to think that the district court engaged in

such ex post thinking, as she does not even attempt to explain

why, viewed ex ante, her case appeared sufficiently well founded

to merit continued litigation following her deposition.

Certainly, Fontanillas contends generally that her case might have

prevailed had it not foundered on the district court's "harsh

application of a Local Rule that excluded [her] otherwise valid

evidence to controvert MBCD's allegedly uncontested facts," but

her appellate brief does not specifically reference a single piece

Fontanillas's counsel to point out the implications of
Fontanillas's deposition. The district court, then, used the date
of the letter rather than the dates of the deposition in
calculating the fees award. See Fontanillas II, 59 F. Supp. 3d at
426.

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of excluded evidence that would have strengthened her case, and we

have found none.

Instead, Fontanillas seems to argue that the district

court abused its discretion by impermissibly basing its fees award

in part on her conduct during discovery and not on the frivolity

of her claims or, alternatively, by using fee-shifting as a

substitute for sanctions. See Indep. Fed'n of Flight Attendants

v. Zipes, 491 U.S. 754, 761 (1989) ("[U]nless the plaintiff's

action is frivolous a district court cannot award fees to the

prevailing Title VII defendant."); Fed. R. Civ. P. 11(c)(5)(A)

(court may not impose monetary sanctions on a represented party

for advancing claims that are unwarranted by existing law). But

although the district court made passing reference to

Fontanillas's litigation conduct and other factors, such as her

refusal to voluntarily dismiss her federal claims against the

individual defendants, it is clear from the district court's

opinion that the basis for the fees award was its view that

"Fontanillas was duly apprised that her claims were devoid of any

merit" following her deposition and that she nonetheless

"continued to vexatiously and unreasonably litigate a claim that,

after the taking of her deposition, had clearly become frivolous

and without foundation." Fontanillas II, 59 F. Supp. 3d at 425.

Again eschewing any argument as to the non-frivolity of

her discrimination claims, Fontanillas next contests the notion

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that she sought to continue litigating, pointing to a voluntary

motion to dismiss with prejudice she submitted on October 7, 2013,

after the district court, having made a "perfunctory review" of

the defendants' summary judgment motion, had "forewarned [her] of

the possibility that her claims be summarily dismissed and that

attorney fees be awarded to the Defendants upon dismissal" if the

district court determined that those claims were frivolous. Id.

at 424. Fontanillas concedes that the district court acted within

its discretion in denying her motion to dismiss at that late stage,

but she argues that, in light of her willingness to accept a

dismissal with prejudice, it was an abuse of discretion to

determine that she acted inappropriately in continuing to litigate

the case after the district court had essentially refused to allow

her to surrender.

Assuming that we would ordinarily agree that a plaintiff

may not be saddled with her opponents' attorneys' fees for

continuing to litigate after her unconditional motion to

voluntarily dismiss with prejudice is denied, the problem for

Fontanillas is that she did not simply move to dismiss with

prejudice. Rather, she moved to dismiss "with prejudice and

without the imposition of costs, expenses or attorney's fees."

(Emphasis supplied.) In essence, Fontanillas told the district

court, "I will continue to litigate these frivolous claims unless

the defendants surrender any argument that my litigation of the

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claims to date has been frivolous." Cf. Fid. Guar. Mortg. Corp.

v. Reben, 809 F.2d 931, 937 (1st Cir. 1987) (plaintiff's "decision

to terminate an ill conceived and wrongly prosecuted law suit

cannot serve to limit the consequences of a course of action [she]

initiated and persistently followed"). The district court did not

abuse its discretion in finding that Fontanillas's conspicuously

conditional offer to discontinue litigation of claims it found to

be "frivolous, unreasonable, or groundless" was tantamount to

"continu[ing] to litigate" those claims. Christiansburg Garment

Co., 434 U.S. at 422.

Having thus failed to demonstrate any abuse of

discretion, Fontanillas mounts an alternative attack on the fees

award, arguing that at least a portion of the award in MBCD's favor

is barred as a matter of law by the Supreme Court's decision in

Kay v. Ehrler, 499 U.S. 432 (1991), which held that pro se

litigants, including attorneys who represent themselves, cannot

seek attorneys' fees under the Civil Rights Attorney's Fees Awards

Act of 1976, see id. at 437–38. Because one of the two attorneys

representing MBCD in this litigation, Rosangela Sanfilippo-Resumil

("Sanfilippo"), was "a salaried associate of . . . MBCD,"

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Fontanillas argues, "MBCD was representing itself" through

Sanfilippo and so has no claim to compensation for her work.8

This argument fails. Sanfilippo was not among the

individual named MBCD defendants, and as for Fontanillas's

argument that Sanfilippo's status as an MBCD employee rendered

MBCD a pro se litigant in this case, Kay itself provides that "an

organization is not comparable to a pro se [individual] litigant

because the organization is always represented by counsel, whether

in-house or pro bono, and thus, there is always an attorney-client

relationship." Id. at 436 n.7. Accordingly, every circuit we

know to have considered the issue has determined that Kay does not

prohibit the award of fees to an attorney who represents his or

her own law firm. See Treasurer, Trs. of Drury Indus., Inc. Health

Care Plan & Tr. v. Goding, 692 F.3d 888, 897–98 (8th Cir. 2012)

(fees under the Employee Retirement Income Security Act); Baker &

Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 315 (D.C.

Cir. 2006) (fees under the Freedom of Information Act); Bond v.

Blum, 317 F.3d 385, 398–400 (4th Cir. 2003) (fees under the

Copyright Act), abrogated on other grounds by Kirtsaeng v. John

Wiley & Sons, Inc., 136 S. Ct. 1979, 1983 (2016); cf. also Gold,

Weems, Bruser, Sues & Rundell v. Metal Sales Mfg. Corp., 236 F.3d

8 Of the $53,662.50 in attorneys' fees awarded to the
defendants, $49,500.00 was attributable to Sanfilippo's work.
Fontanillas II, 59 F. Supp. 3d at 427.

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214, 218–19 (5th Cir. 2000) (relying on Kay to find that a law

firm litigant may collect attorneys' fees for its employees' work

under a Louisiana state statute). We agree with our sister

circuits' straightforward reading of Kay and see no reason,

moreover, not to apply Kay's generally applicable reasoning in the

Title VII context. We therefore hold that MBCD was not prohibited

as a matter of law from seeking attorneys' fees for the work

Sanfilippo contributed to this litigation.

Having considered and rejected all of Fontanillas's

arguments to the contrary, we hold that the district court acted

within its discretion in awarding attorneys' fees to the prevailing

defendants.9 And in light of that determination, we further hold

that the district court acted within its discretion in declining

to overturn that fees award in response to Fontanillas's Rule 59(e)

motion for consideration. Despite our ruling here, however, we

sound a reminder that "decisions to grant defendants their fees"

9 Aside from her categorical challenge to the portion of the
fees award corresponding to Sanfilippo's work--a challenge we have
now rejected--Fontanillas does not appear to challenge the
district court's calculation of the amount owed. She does vaguely
insinuate that Sanfilippo "never billed the firm nor was paid by
them" and that the fees award therefore does not accurately
represent the defendants' legal expenses. Beyond the patent
incredibility of Fontanillas's unsupported suggestion that
Sanfilippo was not being compensated for her work on behalf of
MBCD, Fontanillas offers no developed argument as to why the
district court erred in coming to the opposite conclusion. She
has therefore waived any argument to that effect. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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in the Title VII context "are, and should be, rare." Tang v. State

of R.I., Dep't of Elderly Affairs, 163 F.3d 7, 13 (1st Cir. 1998).

While "one relevant factor" in determining whether a prevailing

defendant is entitled to attorneys' fees is whether the plaintiff

has managed to put forward a prima facie case of discrimination,

Foster v. Mydas Assocs., Inc., 943 F.2d 139, 144 (1st Cir. 1991),

the mere fact that a plaintiff fails to do so on summary judgment

does not imply that the plaintiff's decision to continue litigation

up to the summary judgment stage has been "frivolous, unreasonable,

or groundless," Christiansburg Garment Co., 434 U.S. at 422.

Indeed, this court on occasion reverses grants of summary judgment

to defendants in discrimination cases. See, e.g., Burns v.

Johnson, No. 15-1982, 2016 WL 3675157, at *1 (1st Cir. July 11,

2016); Reyes-Orta v. P.R. Highway & Transp. Auth., 811 F.3d 67, 70

(1st Cir. 2016); Soto-Feliciano v. Villa Cofresí Hotels, Inc., 779

F.3d 19, 22 (1st Cir. 2015); García-González v. Puig-Morales, 761

F.3d 81, 84 (1st Cir. 2014); Acevedo-Parrilla v. Novartis Ex-Lax,

Inc., 696 F.3d 128, 131 (1st Cir. 2012). In this particular case,

the district court expressly acknowledged the need for "[g]reat

caution" in making awards of this type. Fontanillas II, 59 F.

Supp. 3d at 423 (alteration in original) (quoting Lamboy-Ortiz,

630 F.3d at 241). And, as we have noted, Fontanillas does not

offer any substantive challenge to the district court's

determination that her deposition testimony revealed her claims to

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be frivolous. We can therefore affirm the award as within the

district court's discretion without in any way implying that the

standard for making such awards is at all loosened.

C. Denial of Relief from Summary Judgment

Finally, Fontanillas contends that the district court

erred in declining to grant her Rule 60(b) motion for relief from

the summary judgment order issued in the defendants' favor.10 This

claim, argued in cursory fashion, is meritless. "[R]elief under

Rule 60(b) is extraordinary in nature and . . . motions invoking

that rule should be granted sparingly." Rivera-Velázquez v.

Hartford Steam Boiler Inspection & Ins. Co., 750 F.3d 1, 3 (1st

Cir. 2014) (quoting Karak v. Bursaw Oil Corp., 288 F.3d 15, 19

(1st Cir. 2002)). Moreover, we review a district court's decision

10
The district court ruled on Fontanillas's Rule 60(b) motion
after she had already filed a notice of appeal in this court.
Typically, "[t]he filing of a notice of appeal is an event of
jurisdictional significance--it confers jurisdiction on the court
of appeals and divests the district court of its control over those
aspects of the case involved in the appeal." Griggs v. Provident
Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). Under
the Federal Rules of Appellate Procedure, however, a notice of
appeal filed while a Rule 60(b) motion is outstanding in the
district court "becomes effective" only once that motion is
resolved. Fed. R. App. P. 4(a)(4)(B)(i); see also Fed. R. App. P.
4(a)(4) advisory committee's note to 1993 amendment ("A notice [of
appeal] filed . . . after the filing of a motion [such as a Rule
60(b) motion] but before disposition of the motion is, in effect,
suspended until the motion is disposed of . . . ."). The district
court therefore acted within its jurisdiction in denying
Fontanillas's Rule 60(b) motion and, consequently, we have
jurisdiction over Fontanillas's properly noticed, see Fed. R. App.
P. 4(a)(4)(B)(ii), appeal of that denial.

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to grant or withhold such exceptional relief for abuse of

discretion, see id. at 4, "revers[ing] only if it plainly appears

that the court below committed a meaningful error of judgment,"

West v. Bell Helicopter Textron, Inc., 803 F.3d 56, 66 (1st Cir.

2015) (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st

Cir. 1988)).

Rule 60(b) allows a court to "relieve a party . . . from

a final judgment, order, or proceeding" for a number of specified

reasons. Fed. R. Civ. P. 60(b). Among those reasons are

"fraud . . . , misrepresentation, or misconduct by an opposing

party," id. 60(b)(3), and "mistake," id. 60(b)(1). Fontanillas

argues that such circumstances arose in her case. The district

court disagreed, see Fontanillas III, 136 F. Supp. 3d at 157–60,

and we see no error, meaningful or otherwise, in its judgment.

As for fraud, misrepresentation, or misconduct under

Rule 60(b)(3), Fontanillas pointed below to a number of supposedly

bad-faith factual denials and supposedly perjured statements made

by the defendants during the course of litigation. The district

court found that, even if Fontanillas had successfully adduced the

requisite clear and convincing evidence of her opponents'

misconduct, see Anderson, 862 F.2d at 926, she had not shown how

any such misconduct had substantially inhibited her from "fully

and fairly preparing her case," Fontanillas III, 136 F. Supp. 3d

at 158; see also Karak, 288 F.3d at 21–22 ("When a party is capable

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of fully and fairly preparing and presenting his case

notwithstanding the adverse party's arguable misconduct, the trial

court is free to deny relief under Rule 60(b)(3)."). She makes no

effort at such a showing on appeal, and so she has waived the

opportunity to do so. See Karak, 288 F.3d at 21 (burden is on

movant to demonstrate that alleged misconduct substantially

interfered with the movant's ability to prepare the case).11

As for mistake under Rule 60(b)(1), Fontanillas pointed

to a laundry list of alleged errors the district court made in its

admission and consideration of certain evidence and in its

application of certain legal principles.12 The district court,

however, understood Fontanillas simply to be "rehash[ing]

11Fontanillas also briefly suggests that relief is warranted
under Rule 60(d)(3), which permits a court to "set aside a judgment
for fraud on the court." Fed. R. Civ. P. 60(d)(3). Assuming that
Fontanillas has not waived this claim for lack of development, she
has failed to make any demonstration that Rule 60(d)(3)'s
requirement of "an unconscionable scheme or the most egregious
conduct designed to corrupt the judicial process" has been
satisfied here. Irving v. Town of Camden, No. 12-1850, 2013 WL
7137518, at *1 (1st Cir. Apr. 17, 2013) (quoting Roger Edwards,
LLC v. Fiddes & Son Ltd., 427 F.3d 129, 133 (1st Cir. 2005)).
12Before the district court, Fontanillas suggested that her
claims of judicial mistake also provided grounds for relief under
Rule 60(d)(1), which permits a court to "entertain an independent
action to relieve a party from a judgment, order, or proceeding."
Fed. R. Civ. P. 60(d)(1). She does not cite this provision on
appeal, and it would be unavailing in any event, as she has not
sufficiently argued the sort of "grave miscarriage of justice"
that would justify a Rule 60(d) action. LinkCo, Inc. v. Naoyuki
Akikusa, 367 F. App'x 180, 182 (2d Cir. 2010) (unpublished opinion)
(quoting United States v. Beggerly, 524 U.S. 38, 47 (1998)).

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arguments from her opposition to the motion for summary judgment,

and alternatively, advanc[ing] theories that could have been set

forth for the court's consideration a[t] that procedural

juncture." Fontanillas III, 136 F. Supp. 3d at 159. While that

observation alone provided valid grounds for the district court to

deny extraordinary relief under Rule 60(b), we further observe

that this circuit does not understand Rule 60(b)(1)'s reference to

"mistake" to include a district court's mistaken ruling on a point

of law. See Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995); Silk v.

Sandoval, 435 F.2d 1266, 1268 (1st Cir. 1971) (rejecting an

interpretation of Rule 60(b)(1) that would cause it to overlap

with a movant's ability to correct legal error through a Rule 59(e)

motion for reconsideration).

Finding no merit in any of Fontanillas's underdeveloped

claims under Rule 60,13 we affirm the district court's rejection

of those claims.

III. Conclusion

Finding that Fontanillas has failed to show that the

district court abused its discretion in holding her to the local

rules' ordinary page limits, in awarding attorneys' fees to the

prevailing defendants, or in rejecting her motions to set aside

13 Fontanillas makes no argument that the district court
improperly rejected her additional request for relief under the
catch-all provision of Rule 60(b)(6), see Fontanillas III, 136 F.
Supp. 3d at 159–60, so we deem that request abandoned.

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the summary judgment order and the fees award, we affirm. Costs

to defendants.

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