United States Court of Appeals
For the First Circuit
No. 96-1676
CARLOS YAMIL AYBAR, MARIA I. MORALES-LABOY,
Plaintiffs, Appellants,
v.
DIGNA CRISPIN-REYES, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Stahl, Circuit Judge,
Aldrich and Campbell, Senior Circuit Judges.
Eduardo M. Joglar with whom Esther Crispin was on brief for
appellants.
John F. Navares with whom Lizzi M. Portela and Smith & Nevares
were on brief for appellees.
June 26, 1997
STAHL, Circuit Judge. This appeal concerns the
STAHL, Circuit Judge.
district court's dismissal of and subsequent refusal to
reconsider plaintiffs-appellants' 42 U.S.C. 1983 claims
against two law enforcement officials of the Commonwealth of
Puerto Rico.
Background
Background
On March 25, 1993, appellees Sonia Otero-Martinez,
Assistant District Attorney of the Commonwealth of Puerto
Rico, and Diana Crispin-Reyes, a Commonwealth of Puerto Rico
police officer, filed criminal charges against appellant
Carlos Yamil Aybar for the commission of sexual misconduct,
based on the allegations of a witness named Emily Rivera. On
April 29, 1993, officer Crispin-Reyes visited Aybar's place
of employment, Wometco of Puerto Rico, and informed Aybar's
superiors of the charges against him. Wometco subsequently
terminated Aybar's employment. According to Aybar, his
termination resulted from Crispin-Reyes' visit to Wometco.
On July 13, 1993, appellant Maria I. Morales-Laboy, Aybar's
then girlfriend and future wife who also was a Wometco
employee, resigned from her position at Wometco citing as the
cause of her resignation harassment from co-workers
concerning the charges against Aybar. On July 1, 1994, the
district court of Puerto Rico dismissed all charges against
Aybar.
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On July 1, 1994, Aybar and Morales-Laboy filed a
complaint in federal district court naming numerous
defendants and deriving from the prosecution of Aybar and his
subsequent termination of employment. The complaint charged
Otero-Martinez and Crispin-Reyes with violations of the
Federal Civil Rights Act, 42 U.S.C. 1983, allegedly for
malicious prosecution of Aybar, violation of Aybar's right
not to be subject to defamation, and infringement of his
right to secure employment. Morales-Laboy alleged a
continuous tort and, with Aybar, injury to their conjugal
relationship, both stemming from the alleged violations of
Aybar's civil rights. Aybar and Morales-Laboy also named the
Commonwealth of Puerto Rico, Pedro Rossello (the Governor of
Puerto Rico), Pedro Pierluisi (the Attorney General of Puerto
Rico), and Pedro Toledo (the Puerto Rico Superintendent of
Police) as defendants both in their official and in their
personal capacities. On August 9, 1994, Aybar and Morales-
Laboy amended the complaint to increase the damages sought.
On September 13, 1994, the Commonwealth and
Pierluisi (in his official capacity) filed a motion to
dismiss the claims against them based on the immunity
afforded by the Eleventh Amendment to the Constitution. On
November 30, 1994, Rossello and Pierluisi, in his personal
capacity, joined the motion to dismiss and filed a
supplemental memorandum in support thereof. On February 7,
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1995, Toledo also joined the motion to dismiss. Neither
Otero-Martinez nor Crispin-Reyes joined in the motion. Aybar
and Morales-Laboy failed to respond to the motion.
On March 15, 1995, the district court for the
district of Puerto Rico (Fuste, J.) entered a final judgment
pursuant to Fed. R. Civ. P. 12(b)(6) dismissing appellants'
complaint against all defendants, including Otero-Martinez
and Crispin-Reyes. The district court determined that
appellants' 1983 claim against all appellees for malicious
prosecution did not state a claim for either a procedural or
a substantive due process violation. The district court also
found that although appellants' actions may have violated
Aybar's Fourth Amendment rights, the applicable one year
statute of limitations barred this claim. With respect to
appellants' claimed violation of Aybar's right to secure
employment, Judge Fuste ruled that Aybar, as an employee of a
private corporation, did not possess a property interest
protected by the Fourteenth Amendment. The district court
also concluded that defamation alone "cannot be the basis for
a claim under 42 U.S.C. 1983." The court further indicated
that the Eleventh Amendment barred appellants' suit against
Puerto Rico, Rossello, Pierluisi, and Toledo. Finally, the
court held that appellants' claims against Otero-Martinez
were barred because Otero-Martinez enjoyed absolute immunity
as a state prosecutor prosecuting the state's case.
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On March 31, 1995, appellants filed a motion for
reconsideration of this judgment claiming, among other
things, that the statute of limitations had tolled because he
was a minor during the relevant period. On January 30, 1996,
the district court denied the motion, again finding that the
statute of limitations barred the malicious prosecution claim
based on the alleged Fourth Amendment violation. Although
the district court acknowledged that Aybar was a minor during
much of the time preceding the filing of the complaint (a
fact which normally would toll the running of the statute of
limitations), the court concluded that Aybar's marriage
"emancipated" him under Puerto Rico law, and thus precluded
tolling. The district court upheld its earlier rulings for
substantially the same reasons it previously had enunciated.
Undaunted, the appellants then filed a motion,
pursuant to Federal Rules of Civil Procedure 52(b) and 59(e),
to amend and reconsider the district court's January 30, 1996
order.1 In this motion, appellants contended that Aybar was
not married during the period between March 25, 1993 (the
date of Aybar's arrest) and April 16, 1994 (the date of
1. Rule 52(b) states in pertinent part: "On a party's
motion filed no later than 10 days after entry of judgment,
the court may amend findings--or make additional findings--
and may amend the judgment accordingly. The motion may
accompany a motion for a new trial under Rule 59." Rule
59(e) dictates: "Any motion to alter or amend a judgment
shall be filed no later than 10 days after entry of the
judgment."
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Aybar's marriage to Morales-Laboy), and, therefore, that his
minority status in fact did toll the statute of limitations
until the latter date. On May 7, 1996, the district court
denied this motion. Although Judge Fuste recognized that
Aybar actually was not married during much of the time
preceding the filing of the complaint, he found that Aybar
represented to the court that in fact he was married during
the relevant time by referring to Morales-Laboy as his wife
and claiming injury to their conjugal relationship. After
reminding the appellants of their duties to the court
pursuant to Fed. R. Civ. P. 11, the district court concluded
that the appellants had failed to demonstrate that it
"erroneously assessed their averments." This appeal
followed.2
Standard of Review
Standard of Review
Our standard of review of a dismissal pursuant to
Fed. R. Civ. P. 12(b)(6) is well established. We accept all
well-pleaded facts as true and we draw all reasonable
inferences in favor of the appellants. See Washington Legal
Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st
Cir. 1993). "Because a dismissal terminates an action at the
earliest stages of litigation without a developed factual
basis for decision, we must carefully balance the rule of
2. Aybar and Morales-Laboy do not appeal the district
court's dismissal as to either the Commonwealth of Puerto
Rico or Rossello, Pierluisi, and Toledo.
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simplified civil pleadings against our need for more than
conclusory allegations." Id. As we previously have
explained, however, "once a motion to dismiss or a motion for
summary judgment has been granted, the district court has
substantial discretion in deciding whether to reopen the
proceedings in order to allow the unsuccessful party to
introduce new material or argue a new theory." Mackin v.
City of Boston, 969 F.2d 1273, 1279 (1st Cir. 1992).
"Consequently, we will overturn the trial court's decision on
such a matter only if an appellant can persuade us that the
refusal to grant favorable reconsideration was a clear abuse
of discretion." Id.; see Vasapolli v. Rostoff, 39 F.3d 27,
36 (1st Cir. 1994) (explaining that "[w]e review a trial
court's motion to alter or amend a judgment for manifest
abuse of discretion"); Fragoso v. Lopez, 991 F.2d 878, 886
(1st Cir. 1993) ("The trial court's decision on such a motion
will be overturned only if the appellant convinces us that
the court committed a clear abuse of discretion.").
Discussion
Discussion
To determine the scope of this appeal, we first
must resolve a threshold issue. Otero-Martinez and Crispin-
Reyes argue that Aybar appealed only the district court's
order of May 7, 1996, denying their second reconsideration
motion. If true, then the only substantive issue for our
resolution entails whether or not the district court abused
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its discretion in determining that Aybar's Fourth Amendment
claim was barred due to the expiration of the statute of
limitations. If, on the other hand, Aybar's notice of appeal
pertained not only to the May 7th order, but also to the
underlying judgment, then we must consider a number of issues
in addition to Aybar's Fourth Amendment claim.
"Under Fed. R. App. P. 4(a) timely motions under
Rules . . . 52(b) and 59 suspend the finality of the
original judgment, and the time for appeal from both that
judgment and denial of the motions runs from the entry of the
order denying the motions." Fiore v. Washington County
Community Mental Health Ctr., 960 F.2d 229, 234 (1st Cir.
1992); see Fed. R. App. P. 4(a)(4)(B) & (C). In this case,
appellants timely filed their first motion for
reconsideration of the district court's initial March 15,
1995 order dismissing their claims.3 Subsequent to the
district court's denial of appellants' motion on January 30,
1996, appellants filed a renewed motion for reconsideration
3. Although appellants did not label this a Rule 59(e)
motion for reconsideration, "regardless of how it is
characterized, a post-judgment motion made within ten days of
the entry of judgment that questions the correctness of a
judgment is properly construed as a motion to alter or amend
judgment under Fed. R. Civ. P. 59(e)." Skagerberg v. State
of Okla., 797 F.2d 881, 883 (10th Cir. 1986); see Acevedo-
Villalobos v. Hernandez, 22 F.3d 384, 390 (1st Cir. 1994).
The motion was timely because Rule 59(e) provides that "[a]
motion to alter or amend the judgment shall be served not
later than 10 days after entry of the judgment." See also
Fed. R. Civ. P. 6(a).
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on February 13, 1996. Following the district court's May 7,
1996 denial of the latter motion for reconsideration,
appellants appealed to this court on May 16, 1996. The
appellants thus followed the procedural guidelines to
preserve their appeal of the May 7th order. See Mariani-
Giron v. Acevedo-Ruiz, 945 F.2d 1, 2 n.3 (1st Cir. 1991).
The appellants, however, did not timely appeal the
underlying judgment. Fed. R. App. P 4(a)(1) dictates that
"the notice of appeal required by Rule 3 must be filed with
the clerk of the district court within 30 days after the date
of entry of the judgment or order appealed from." While an
initial motion for reconsideration filed within ten days of
the entry of the final judgment tolls the period in which a
litigant must file a notice of appeal, see Fed. R. Civ. P.
59(e); Fiore, 960 F.2d at 234; Feinstein v. Moses, 951 F.2d
16, 18 (1st Cir. 1991), a subsequent motion for
reconsideration served within ten days of the order denying
the initial motion for reconsideration but more than ten days
after the entry of the original judgment does not toll "the
time for appealing from that judgment," Acevedo-Villalobos v.
Hernandez, 22 F.2d 384, 389 (1st Cir. 1994); see Glinka v.
Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996) ("Allowing
subsequent motions to repeatedly toll the filing period for a
notice of appeal would encourage frivolous motions and
undermine a fundamental canon of our legal system, to promote
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the finality of judgments."); Wright v. Preferred Research,
Inc., 891 F.2d 886, 889 (11th Cir. 1990) ("Both the language
and purpose of Rule 4(a)(4) indicate that the time for appeal
is postponed only by an original motion of the type
specified. I.e., a motion to reconsider an order disposing
of such a motion will not further postpone the time to
appeal.") (quoting 9 Moore's Federal Practice 204.12[1]);
Charles L.M. v. Northeast Indep. Sch. Dist., 884 F.2d 869,
870 (5th Cir. 1989) ("[T]he second motion was a successive
motion for reconsideration, condemned by well-established
authority in this and other circuits. . . . [T]he filing of
the second motion did not toll the running of the thirty-day
time for appeal . . . .").
In this case, the district court dismissed
appellants' amended complaint on March 15, 1995. Appellants
filed their initial motion for reconsideration on March 31,
1996, thus tolling Rule 4's thirty day appeal period. The
district court denied appellants' motion for reconsideration
on January 30, 1996. Because the appellants' second motion
for reconsideration -- filed on February 13, 1996 -- was not
filed within ten days of the initial judgment -- the thirty
day appeal period of Rule 4 expired well before appellants
filed their May 16, 1997 notice of appeal. We thus lack
appellate jurisdiction to consider an appeal of the district
court's March 15, 1995 dismissal of the appellants'
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complaint. See Glinka, 90 F.3d at 74; Hernandez, 22 F.3d at
390; Wright, 891 F.2d at 889; Charles L.M., 884 F.2d at 870-
71.4
Because this appeal "concerns only the Rule 59(e)
denial,5 the question properly before us is whether the trial
4. The Charles L.M. court explained the difference between
an initial motion for reconsideration and successive
reconsideration motions as follows: "[W]here an appellant
files a second motion to reconsider 'based upon substantially
the same grounds as urged in the earlier motion,' the filing
of the second motion does not interrupt the running of the
time for appeal, and the appeal must be dismissed." 884 F.2d
at 870 (quoting Ellis v. Richardson, 471 F.2d 720, 721 (5th
Cir. 1973) (per curiam)); see Hernandez, 29 F.3d at 390. In
the instant case, appellants' second motion for
reconsideration returned to an issue raised unsuccessfully in
the first motion for reconsideration, namely the running of
the statute of limitations for a 1983 action in Puerto
Rico. As the Charles L.M. court further explained, "there is
no tolling where an order 'den[ies] timely postjudgment
motions under [rule 59] and leave[s] the original judgment in
effect and unchanged.'" Id. (quoting Brown v. United Ins.
Co., 807 F.2d 1239, 1242 (5th Cir. 1987) (per curiam)). In
this case, the district court's denial of the appellants'
first motion for reconsideration did not alter its previous
dismissal of their complaint because it reached the same
conclusion. See Harrell v. Dixon Bay Transp. Co., 718 F.2d
123, 128 n.4 (5th Cir. 1983) (indicating that original
summary judgment was unchanged by amended judgment because
both judgments denied all relief); 9 Moore's Federal Practice
204.12[1] (indicating that in order for second
reconsideration motion again to toll appeal period, the trial
court's disposition of the first motion "must result[] in a
judgment which is substantively altered"). "The interest of
finality requires that parties generally get only one bite at
the rule 59(e) apple for purpose of tolling the time for
bringing an appeal." Charles L.M., 884 F.2d at 871.
5. We note that appellants argue that they clearly intended
to appeal the district court's underlying dismissal of their
claims. See In re San Juan Dupont Plaza Hotel Fire
Litigation, 45 F.3d 564, 567 (1st Cir. 1995) (ruling that a
"mistake in designating a judgment in the notice of appeal
will not ordinarily result in a loss of the appeal 'as long
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court abused its discretion in denying . . . [appellants'
second] motion to vacate the judgment of dismissal."
Acevedo-Ruiz, 945 F.2d at 3. In their second motion for
reconsideration, appellants argued that the district court
improperly ruled that their Fourth Amendment claim was time
barred on the grounds that one year had elapsed from the time
of Aybar's arrest and that Aybar's marriage to Morales-Laboy
functioned to preclude application of the rule permitting the
one year statute of limitations to be tolled for a minor
plaintiff until the minor's twenty-first birthday.6
Appellants supplied the district court with evidence that
they were not married until April 16, 1994, almost thirteen
months after Aybar's arrest on March 25, 1993. Appellants
insisted that the one year statute of limitations for their
Fourth Amendment claim had not expired because Aybar was an
as the intent to appeal from a specific judgment can be
fairly inferred from the notice, and appellee is not misled
by the mistake'" (quoting Kelly v. United States, 789 F.2d
94, 93 n.3 (1st Cir. 1990))). We need not evaluate this
assertion, however, in light of our determination that we
lack appellate jurisdiction to consider an appeal of any
decision other than the May 7, 1996 order in this case.
6. The applicable statute of limitations in this 1983 case
is one year. See Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610
(1st Cir. 1994). This one year period is tolled until a
plaintiff's twenty-first birthday in the event that the
plaintiff is a minor at the time the action is filed. See
P.R. Laws Ann. tit. 32, 254(1) (1991). If, however, a
plaintiff marries while still a minor, the statute of
limitations ceases to toll as of the date of the marriage.
See P.R. Laws Ann. tit. 32, 932, 933 (1991); Martinez v.
Estado Libre Asociado, 110 P.P.R. 877 (1981).
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unemancipated minor during this time and, therefore, the
statute of limitations was tolled until his twenty-first
birthday on February 7, 1994. Appellants indicated that they
filed their complaint on July 1, 1994, less than five months
after Aybar turned twenty-one and thus more than seven months
before the one year limitations period would expire, and
argued, therefore, that their claim was not time barred.
The district court concluded that the appellants
made representations that led it to believe that they were
married at the time of the alleged constitutional violations.
Specifically, appellants "alleged damages to their conjugal
partnership. . . . Morales alleged damages stemming from the
alleged malicious prosecution of her husband." Moreover,
according to the district court, appellants had several
opportunities to clarify their pleadings, but failed to do so
when they amended their complaint or when they failed to
respond to the motion to dismiss. Consequently, the district
court ruled that it "reasonably inferred that plaintiffs were
married at the time of the alleged incidents."
We consider the district court's decision in light
of the law governing the disposition of a Rule 59(e) motion.
"Rule 59(e) allows a party to direct the
district court's attention to newly
discovered material evidence or a
manifest error of law or fact and enables
the court to correct its own errors and
thus avoid unnecessary appellate
procedures. The rule does not provide a
vehicle for a party to undo its own
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procedural failures, and it certainly
does not allow a party to introduce new
evidence or advance arguments that could
and should have been presented to the
district court prior to the judgment.
Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)
(citations omitted); see Vasapolli, 39 F.3d at 36-37; Hayes
v. Douglas Dynamics, Inc., 8 F.3d 88, 91 n.3 (1st Cir. 1993);
F.D.I.C. v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir.
1992); National Metal Finishing Co., Inc. v.
BarclaysAmerican/Commercial, 899 F.2d 119, 123 (1st Cir.
1990). In this case, we do not question that appellants
directed the district court to a "manifest error of fact" in
their second reconsideration motion: Contrary to the
district court's determination, appellants were not married
during the period in question.
That the appellants illuminated an error of fact,
however, does not necessitate that we reverse the district
court's decision. "Except for motions to amend based on
newly discovered evidence, the trial court is only required
to amend its findings of fact based on evidence contained in
the record. To do otherwise would defeat the compelling
interest in the finality of litigation." Fontenot v. Mesa
Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986); see Lyons
v. Jefferson Bank & Trust, 793 F. Supp. 989, 991 (D. Colo.
1992), aff'd in part, rev'd in part, 994 F.2d 716 (10th Cir.
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1993). In the instant case, as in Fontenot and Lyons, the
district court
drew an eminently reasonable inference
from the evidence in the record and
relied on that inference in making its
findings of fact. That other evidence
not in the record may negate the
[d]istrict [c]ourt's inference is beside
the point. Blessed with the acuity of
hindsight, [appellants] . . . may now
realize that . . . [they] did not make .
. . [their] initial case as compelling as
. . . [they] might have, but . . .
[they] cannot charge the [d]istrict
[c]ourt with responsibility for that
failure through this Rule 52(b) motion.
Fontenot, 791 F.2d at 1220; see Vasapolli, 39 F.3d at 36-37
("Unlike the Emperor Nero, litigants cannot fiddle as Rome
burns. A party who sits in silence[] [and] withholds
potentially relevant information . . . does so at his
peril."); Hayes, 8 F.3d at 91 n.3 (noting that "none of the
information presented [to the district court in support of
plaintiff's motion for reconsideration] was new, nor was it
unavailable when the summary judgment was filed"); World
Univ., 978 F.2d at 16 (indicating that there was no reason
why appellant could not have asserted its argument before the
district court and appellant's argument did not present newly
discovered evidence).7
7. We recognize that this case comes to us as having been
dismissed pursuant to Rule 12(b)(6), rather than Rule 56, at
which stage courts afford plaintiffs substantial latitude to
develop their claims. See Acadia Motors, Inc. v. Ford Motor
Co., 44 F.3d 1050, 1059 (1st Cir. 1995). This fact, however,
does not persuade us that in this case the district court
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In this case, as in Fontenot, Vasapolli, Hayes, and
World Univ., the evidence that appellants submitted to
support the argument they advanced for the first time in
their second motion for reconsideration was neither new nor
unavailable at the time the district court entered judgment
on March 15, 1995. In their motion to dismiss, Rossello,
Pierluisi, and Toledo argued that the one year statute of
limitations period for appellants' Fourth Amendment claim had
expired. The appellants chose not to defend against this
motion, and thus did not reveal the fact that Aybar's
minority status tolled the statute of limitations because he
and Morales-Laboy were not married until April 1994.8
abused its discretion. See Hernandez, 22 F.3d at 391
(upholding district court's denial of second Rule 59(e)
motion seeking reconsideration of district court's dismissal
pursuant to Rule 12(b)(6)); Figgie Int'l, Inc. v. Miller, 966
F.2d 1178, 1180 (7th Cir 1992) (ruling, in context of
district court's initial dismissal pursuant to Rule 12(b)(6),
that "[b]ecause Figgie presented no competent evidence that
was not previously available, the district court's
[subsequent] decision denying Figgie's motion under the
traditional standards governing Rule 59(e) did not constitute
an abuse of discretion").
8. At oral argument before this court, appellants indicated
that Otero-Martinez and Crispin-Reyes did not join the motion
to dismiss and explained that appellants did not oppose
Rossello, Pierluisi, and Toledo's motion because they
desired to drop these three defendants from the suit. It is
interesting to note, however, that in their first Rule 59(e)
motion, appellants petitioned the district court to
reconsider not only its sua sponte ruling as to Otero-
Martinez and Crispin-Reyes, but also its ruling as to
Rossello, Pierluisi, and Toledo. Appellants' explanation for
their failure to raise the evidence of their marital status
before the district court rendered its judgment dismissing
their claims thus is unpersuasive.
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Appellants did not even mention Aybar's marital status in
their first motion for reconsideration, in which they did
assert that Aybar's minority status functioned to toll the
statute of limitations.9 It was not until they filed their
second Rule 59(e) motion that appellants informed the
9. Appellants, in fact, referred to each other as "husband"
and "wife" in this first Rule 59(e) motion, asserting that
Morales-Laboy "suffered not only her own humiliation as a
wife but also suffered a sense of loss of pride, self esteem
[sic], loss of husband's income, as well as the day by day
suffering of her husband's own humiliation, physical and
mental anguish, depression and loss of reputation." (emphasis
added).
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district court that they were not married during the time in
question.10
In light of these circumstances, we find that the
district court did not clearly abuse its discretion in
denying appellants' second motion for reconsideration. See
Vasapolli, 39 F.3d at 27; Hernandez, 22 F.3d at 391; Hayes, 8
F.3d at 91 n.3; Fragoso, 991 F.2d at 888; World University,
978 F.2d at 16; Figgie Int'l, Inc. v. Miller, 966 F.2d 1178,
1180 (7th Cir. 1992); Fontenot, 791 F.2d at 1220. We thus
affirm the district court's decision to deny appellants'
second motion for reconsideration.
10. Appellants contend that they had no cause to provide the
evidence of their marital status prior to the district
court's denial of their first Rule 59(e) motion because they
had no reason to believe that the district court would
determine that they were married during the period in
question. Appellants assert that their pleadings merely
indicated that they were married at the time they filed the
complaint and that Morales-Laboy could claim injury to their
conjugal partnership before their marriage because they lived
as common law husband and wife and shared a community of
goods at this time. See P.R. Laws Ann. tit. 31, 3622,
3623, 3641(3) (1991); Caraballo Ramirez v. Acosta, 104 P.P.R.
474, 481 (1975). We doubt that the authority appellants cite
supports the conclusion that they constituted common law
husband and wife during the period in question, and thus
legitimately could claim injury to their conjugal
partnership. We believe the district court, considering the
pleadings in a light favorable to the appellants, see Acadia
Motors, 44 F.3d at 1059, reasonably concluded that they were
married at the time of Aybar's arrest. We do not need to
delve into this issue, however, because appellants' failure
to adequately elucidate the relevant facts of the case either
when they faced a motion to dismiss or when they filed their
first Rule 59(e) motion relieves the district court of an
obligation to correct its erroneous factual determination in
this case. See Fontenot, 791 F.2d at 1220.
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Costs to appellees.
Costs to appellees
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