Goya Foods, Inc. v. Unanue-Casal

United States Court of Appeals
For the First Circuit

No. 98-1553
No. 99-1307
No. 99-2056
No. 99-2211

GOYA FOODS, INC.,

Plaintiff, Appellee,

v.

LILIANE UNANUE and KALIF TRADING, INC.,

Defendants, Appellants.
__________

ULPIANO UNANUE-CASAL,
a/k/a CHARLES UNANUE

Defendant.

No. 98-1554
No. 99-1308
No. 99-2057
No. 99-2212

GOYA FOODS, INC.,

Plaintiff, Appellee,

v.

ULPIANO UNANUE-CASAL,
a/k/a CHARLES UNANUE,

Defendant, Appellant.
__________
 LILIANE UNANUE and KALIF TRADING, INC.,

Defendants.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Selya, Circuit Judge,

Wallace,* Senior Circuit Judge,

and Boudin, Circuit Judge.

Jan Alan Brody with whom Roger Juan Maldonado, Jared
Forminard and Balber Pickard Battistoni Maldonado & Van Der
Tuin, PC were on consolidated brief for defendants Liliane
Unanue and Kalif Trading, Inc.
Ulpiano Unanue-Casal, a/k/a Charles Unanue, pro se.
David J. Eiseman, Jose-Manuel A. de Castro and Golenbock,
Eiseman, Assor & Bell on consolidated brief for defendant
Ulpiano Unanue-Casal, a/k/a Charles Unanue.
Ira Brad Matetsky, Legal Department, Goya Foods, Inc., with
whom Arturo J. Garcia Sola and McConnell Valdes were on
consolidated brief for plaintiff.

November 28, 2000

*Of the Ninth Circuit, sitting by designation.
 BOUDIN, Circuit Judge. This case involves an effort

by a judgment creditor to reach both certain assets of the

debtor nominally owned by the debtor's wife, and all assets

owned by the debtor's alleged corporate "alter ego," Kalif

Trading, Inc. The judgment creditor is Goya Foods, Inc., a

major business founded in the 1930s which is now a Delaware

corporation with its principal place of business in New Jersey.

The debtor is Ulpiano Unanue-Casal, known as Charles, and his

bankruptcy estate. The factual background and prior proceedings

are as follows.

From the late 1940s until 1969, Charles served as one

of the chief officers of Goya, a company founded by his father.

In June 1969, in a quarrel among family members, Charles was

dismissed and litigation ensued. As a result of settlements in

1972 and 1974, Charles received more than $4 million from Goya

and, in exchange, gave up his interest in Goya. Charles also

agreed not to bring any further claim or suit regarding his

father's will or estate. The agreement provided for liquidated

damages of twice the winning side's litigation expenses,

including attorney's fees, if any signatory wrongfully initiated

new litigation against another signatory.

In 1987, Charles made a claim for a share of the

inheritance from his parents, and litigation in New Jersey state

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court followed, with his brothers seeking a declaration that

Charles had no interest in either his father's estate or his

inter vivos trust. In 1990, while the New Jersey litigation

proceeded, Charles filed for bankruptcy in Puerto Rico, and his

bankruptcy estate thereafter became a party to the New Jersey

litigation. In February 1995, the New Jersey court entered a

judgment against both Charles and his estate for about $6.9

million, representing liquidated damages for Goya, a signatory

of the 1974 settlement that Charles had violated by making his

inheritance claims.1

Meanwhile, prior to this New Jersey judgment, Goya had

begun adversary proceedings in Charles' bankruptcy case in

Puerto Rico, asserting that Charles was concealing his own

assets under the names of his wife, Liliane, and two other

companies, Emperor Equities, Inc., a Delaware corporation wholly

owned by Liliane, and Kalif Trading, a Panamanian corporation

which was organized by Charles. 2 On September 12, 1995, the

1The New Jersey judgment was entered, In re Unanue, No. M-
128817, slip op. (N.J. Super. Ct. Ch. Div. Feb. 23, 1995), and
has since been affirmed, 710 A.2d 1036, 1041 (N.J. Super. Ct.
App. Div.), cert. denied, 724 A.2d 801 (N.J. 1998).
2In 1991, after Emperor sold a piece of real property and
proceeds were transferred to a Swiss bank account in Liliane's
name, the bankruptcy court restrained remaining sales of real
property pendente lite. See Quiros-Lopez v. Unanue-Casal (In re
Unanue-Casal), 144 B.R. 604, 606-07 (D.P.R. 1992).

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bankruptcy court dismissed Charles' bankruptcy case without

granting him a discharge. In re Unanue-Casal, No. 90-04490,

slip op. at 5 (Bankr. D.P.R. Sept. 12, 1995).

In November 1995, nine months after obtaining the New

Jersey judgment for $6.9 million, Goya brought the present

action in federal district court in Puerto Rico against Charles,

Liliane, and Kalif Trading, seeking to enforce the New Jersey

judgment against Charles and against properties that Goya

claimed belonged to Charles but were held in the name of Liliane

or Kalif Trading. A ten-day bench trial ensued in the district

court in July 1997, and both Charles and Liliane testified. On

October 31, 1997, the court filed a lengthy decision in Goya's

favor, Goya Foods, Inc. v. Unanue-Casal, 982 F. Supp. 103

(D.P.R. 1997). Clarifying amendments to the judgment followed

on March 10 and December 14, 1998.

The district court concluded that Charles was the true

owner of specified cash, securities and various real properties

held in the names of Liliane, Emperor Equities, and Kalif

Trading. The court rejected as false assertions by Charles and

Liliane that Kalif Trading was owned by a wealthy Arab (who did

not appear at trial), and that a supposed fortune inherited by

Liliane from her family accounted for various of the real

properties held in her name.

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 The judgment, as finally amended, determined that Kalif

Trading was Charles' alter ego and was therefore responsible for

the New Jersey judgment to the full extent of its assets. As

for Liliane, the court's judgment provided that Goya could

execute only against the following: (1) the proceeds of the

Sutton House apartment Liliane had earlier owned in New York but

since sold; (2) "any residence registered to her name, including

the Fuengirola, Malaga, Spain villa, and the Paris apartment";3

and (3) the stock of Emperor Equities, all of which was held in

Liliane's name, and which the court directed Liliane to deposit

with the court.

Charles, Liliane and Kalif Trading have now appealed

from the district court's judgment. They contest the findings

of fact and legal conclusions that led the district court to

impose liability for the New Jersey judgment on property held in

the name Liliane, Kalif Trading and Emperor Equities. They also

contend that the statute of limitations and a contractual

release debar Goya's claims and say that the district court

3Fairly read, the judgment encompasses another New York
apartment on Park Avenue which was the subject of evidence at
trial and was held in Liliane's name at the time of the
judgment. Apart from these three real properties, it is not
clear what other real property held in Liliane's name at the
time of the judgment was meant to be included.

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committed various procedural errors. We consider the merits of

those arguments that have not been forfeited.

1. Kalif Trading. It is easiest to begin with the

district court's treatment of Kalif Trading, an off-shore

company that Charles organized in 1979 and for which he and

Liliane have had general power of attorney since incorporation.

In November 1980, Charles transferred over $1 million to Kalif

Trading in assets from his own securities account. At about

this time, he ceased to pay alimony to a former wife and also

stopped paying taxes, claiming that he no longer had any income

or assets. In August 1983, Kalif Trading was also given title

of a penthouse apartment in Puerto Rico previously held by

Emperor Equities and apparently acquired with Charles' assets.

At trial, Charles claimed that Kalif Trading was owned

by one Mohammed Kalif, but the court found that there was no

evidence that Mohammed Kalif existed (he did not appear at

trial), and that the company was a vehicle used by Charles to

conceal his own assets. This finding was supported not only by

Charles' effective control of the assets, but also by his use of

Kalif Trading's bank accounts to pay hundreds of thousands of

dollars in bills for Charles and his wife, by the transfer of

assets from Charles to Kalif Trading, and by the timing of Kalif

Trading's creation.

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 In imposing liability on Kalif Trading, the district

court applied New York law, after finding that Puerto Rico

courts would apply a "most significant contacts" test, A.M.

Capen's Co. v. American Trading & Prod. Corp., 74 F.3d 317, 320

(1st Cir. 1996), and that New York's contacts with transactions

involving Kalif Trading were greater than those of any other

relevant jurisdiction. The brief filed for Liliane and Kalif

Trading does not dispute the decision to apply New York law;

Charles does so in his reply brief, but his arguments are terse,

unpersuasive and too late. Rivera-Muriente v. Agosto-Alicea,

959 F.2d 349, 354 (1st Cir. 1992).4

Under New York law, the corporate veil may be

disregarded where the challenger shows two facts: (1) complete

domination of the corporation by its alleged alter ego, and (2)

use of that domination to commit a fraud or wrong against the

plaintiff. Morris v. New York State Dep't of Taxation & Fin.,

623 N.E.2d 1157, 1160-61 (N.Y. 1993); see also New York v.

Easton, 647 N.Y.S.2d 904, 908 (N.Y. Sup. Ct. 1995). Although

4 Panama, as the state of incorporation, may well supply the
presumptively applicable legal regime for veil piercing claims;
but under the Restatement rule, apparently followed in Puerto
Rico, New York law could nevertheless be applied where, as here,
Kalif Trading's business activities occurred primarily in New
York and have no connection to Panama. See Wadsworth, Inc. v.
Schwarz-Nin, 951 F. Supp. 314, 320-21 (D.P.R. 1996) (citing
Restatement (Second) of Conflict of Laws § 309 (1971)).

-8-
veil piercing is usually employed to make an individual or a

corporate parent liable for the debts of a corporation, so-

called "reverse piercing" (which makes the corporation liable

for the debts of its owner or parent) is allowed under New York

law where the assets at issue are held by the target corporation

and the liability is that of the individual who dominates the

corporation and is using it to perpetrate a fraud or wrong. Wm.

Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 933

F.2d 131, 138 (2d Cir. 1991).

It may be open to dispute whether Kalif Trading was

initially formed for the purpose of shielding assets from Goya.

Although the district court's decision so suggests, New York law

requires "clear and convincing" evidence of such fraud,

Lowendahl v. Baltimore & Ohio R.R. Co., 287 N.Y.S. 62, 76 (N.Y.

App. Div.), aff'd, 6 N.E.2d 56 (N.Y. 1936), and such evidence

seems lacking because Kalif Trading's formation and the transfer

of Charles' assets to it took place after Charles' original

litigation with Goya had been settled (in 1972 and 1974) and

before Charles made his 1987 claim for a share of his parents'

estate.

Nevertheless, even if Kalif Trading's origin is not

tainted by fraud, New York still permits veil piercing where the

corporate vehicle is being used to inflict "wrongful or

-9-
inequitable consequences." TNS Holdings, Inc. v. MKI Sec.

Corp., 703 N.E.2d 749, 751 (N.Y. 1998). New York courts have

held that this test can be satisfied when a corporation is "a

mere shell dominated and controlled by another for the latter's

own purposes."5 Guptill Holding Corp. v. New York, 307 N.Y.S.2d

970, 973-74 (N.Y. App. Div. 1970), aff’d, 292 N.E.2d 782 (N.Y.

1972), is inapposite here because, given Charles' denial of

ownership of Kalif Trading, there is no easy way for Goya to

levy directly on Charles' formal ownership interest in Kalif

Trading.

There is ample proof that Kalif Trading is effectively

the alter ego of Charles--who created it, initially funded it

with his own assets, managed it, and paid his own and his wife's

expenses with its assets. Whether or not it was originally

created to shield assets from creditors, it is not a business

separate from Charles, and there is no indication it has any

owners other than Charles. It appears to us, as to the district

court, to be nothing other than Charles himself under another

name, and therefore under New York law it is permissible to

strip away the corporate fig leaf.

5
888 7th Ave. Assocs. Ltd. P'ship v. Arlen Corp., 569
N.Y.S.2d 16, 17 (N.Y. App. Div. 1991); see also National Union
Fire Ins. Co. v. Bodek, 705 N.Y.S.2d 42, 43 (N.Y. App. Div.
2000); Austin Powder Co. v. McCullough, 628 N.Y.S.2d 855, 857
(N.Y. App. Div. 1995).

-10-
 2. Assets in Liliane's Name. The claim as to Liliane's

assets is more complicated. In 1968, Liliane and Charles took

joint title to an apartment in San Juan, Puerto Rico, and in

1971, during the earlier round of litigation between Charles and

Goya, the title to the apartment was transferred to Emperor

Equities, Inc., a Delaware corporation wholly owned by Liliane.

During and after 1972, the year in which Charles received the

first installment of payments from Goya, Liliane and Emperor

Equities developed a pattern of real estate acquisitions in

which they obtained title to other luxury residences in Puerto

Rico, New York, France, and Spain.

At trial, Liliane claimed that these properties had

been acquired with assets provided by her once wealthy Bulgarian

family. However, the district court concluded that this story

was untrue, being uncorroborated and inconsistent with other

evidence. It also concluded that the properties in question had

been purchased by Charles, who used and enjoyed all of the

residences "and in many occasions referred to them as his own in

letters to third parties." Goya Foods, 982 F. Supp. at 112. In

substance, the court found that Charles was "hiding his assets

in the name of his wife for the purpose of impairing his

creditors." Id.

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 Liliane's brief makes no persuasive attack on the

district court's findings, which we find were adequately

supported. Rather, the brief concentrates its criticism on the

district court's theory of liability. Because the district

court described Liliane as Charles' "alter ego" in relation to

the acquisitions, Liliane says that the district court wrongly

applied to a human being a theory that is only valid in relation

to corporations. See, e.g., Werner-Jacobsen v. Bednarik, 946

P.2d 744, 747-48 (Utah Ct. App. 1997) ("An individual cannot be

the 'alter ego' of another."). Further, says Liliane, property

held in her name belongs to her "even if it were assumed that

Liliane obtained her properties with Charles' money and not with

her own . . . ."

The district court's use of the "alter ego" language

to describe the relationship between Charles and Liliane may be

inapt--no New York decision appears to use it in such

circumstances--and in New York the property of one spouse

certainly is not automatically subject to seizure for the debts

of the other spouse. But New York courts have used the

equitable theory of "constructive trust" to allow a third-party

creditor to execute judgment on assets nominally owned by

someone other than the debtor but, based on the court's

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findings, actually owned by the debtor himself.6 It appears to

us that, in using the alter ego language, the district court

meant only that the properties in question were Charles'

property but were merely held in his wife's name.

In some circumstances, even an intended transfer of

ownership can be set aside. For example, if a specific transfer

from one spouse to another were made without consideration to

defraud a creditor, a different set of New York doctrines

("actual or constructive fraud") could be invoked, see Scola v.

Morgan, 412 N.Y.S.2d 893, 895 (N.Y. App. Div. 1979); 30 N.Y.

Jur. 2d Creditors' Rts. & Remedies §§ 300-71 (1997); but in this

case there are no detailed findings with respect to each of the

individual transactions at issue that would establish fraudulent

intent, see In re Montclair Homes, 200 B.R. 84, 96 (E.D.N.Y.

1996), or constructive fraud, see N.Y. Debtor & Creditor Law §§

273-75 (McKinney 1990), nor did the district court purport to

make such findings.

However, under the theory of constructive trust, no

such specific findings are required if the purchases were with

Charles' own funds, the transfers of title to Charles' wife

6Duncan v. Laury, 292 N.Y.S. 138, 139-41 (N.Y. App. Div.
1937); cf. Tesmetges v. Tesmetges, 47 B.R. 385, 390-91 (E.D.N.Y.
1984). See generally Latham v. Father Divine, 85 N.E.2d 168,
170 (N.Y. 1949).

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Liliane were merely nominal, and the parties intended that

Charles continue to possess beneficial ownership of the

properties. See Bankers Sec. Life Ins. Soc'y v. Shakerdge, 406

N.E.2d 440, 440 (N.Y. 1980). This, in substance, is what the

district court found. It does not make Liliane personally

liable for her husband's debts; but it does mean that the

property which he beneficially owns but which happens to be held

in her name can be reached through the constructive trust

doctrine for the benefit of his creditors.

Here, the circumstantial evidence of an implicit

understanding is strong. The timing of the transactions in

relation to prospective litigation, Charles' continued treatment

of the properties as his own, the parallels to the deceptive

operation of Kalif Trading, and the inferences to be drawn from

Liliane's baseless claim that the properties were paid for with

family funds all contribute to the conclusion that the real

estate in question was Charles' and not Liliane's. Given that

Charles and Liliane's "agreement" could be inferred from the

circumstances, see In re Estate of Knappen, 655 N.Y.S.2d 110,

111-12 (N.Y. App. Div.), cert. denied, 683 N.E.2d 335 (N.Y.

1997), there is enough to sustain the district court's

assessment of the situation under a clear error standard.

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 Two New York cases, not cited by the parties, make

clear that a constructive trust is not automatically justified

to undo a property transfer between spouses even when the

purpose of the transfer (in each case, one involving the marital

residence) is to protect against present or future claims by the

creditors of the transferring spouse.7 However, those cases are

distinguishable, for they involved what the New York courts

found to be genuine transfers that occurred without an

understanding between the parties that the property would remain

that of the transferring spouse. In our case, by contrast, the

thrust of the district court's findings is that ownership was

conveyed in name only.

This lack of an effective conveyance (and the resulting

applicability of constructive trust theory) also answers the

argument of Charles and Liliane that the statute of limitations

bars the effort to reach property held in Liliane's name.

Although the New York statute of limitations requires that suit

based on fraudulent conveyance be brought within six years of

the transfer or two of discovery (actual or constructive) of the

fraud, Wall St. Assocs. v. Brodsky, 684 N.Y.S.2d 244, 248 (N.Y.

App. Div. 1999), that is not the theory of recovery. In the

7
Macina v. Macina, 455 N.E.2d 1258, 1259 (N.Y. 1983), aff’g
463 N.Y.S.2d 43 (N.Y. App. Div. 1983); Rossignol v. Silvernail,
635 N.Y.S.2d 772, 773 (N.Y. App. Div. 1995).

-15-
case of a constructive trust, the limitations period (six years,

Maric Piping, Inc. v. Maric, 705 N.Y.S.2d 684, 685 (N.Y. App.

Div. 2000)) begins to run only when "the wrongful withholding"

occurs, Augustine v. Szwed, 432 N.Y.S.2d 962, 965 (N.Y. App.

Div. 1980); accord Whalen v. Gerzof, 564 N.E.2d 656, 657 (N.Y.

1990), and the original date of transfer is not relevant.

The district court's rationale justifies its judgment

to the extent that it recognizes Goya's right to execute against

the identified real property held in Liliane's name,

specifically, the three named properties in New York, Paris, and

Malaga. However, despite its broad literal wording, Goya Foods,

982 F. Supp. at 112, we do not construe the district court

judgment as extending to any residence held in Liliane's name

that has not yet been identified in this litigation. The

constructive trust doctrine cannot easily be applied to property

whose identity and circumstances of acquisition are unknown.

3. Emperor Equities. Next, we consider the various

issues raised by Liliane's ownership of Emperor Equities. One

set of the real properties at issue were three condominium

apartments in Puerto Rico. One was acquired by Charles in 1968,

title being taken in the joint names of Charles and Liliane; in

1971, during Charles' litigation with Goya, this property was

transferred to Emperor, a corporation whose sole shareholder was

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Liliane. Two further condominiums in San Juan were acquired in

1972, after Charles received a large initial payment from Goya.

They too became properties of Emperor. One was transferred in

1983 to Kalif Trading, but the other remained in Emperor's name

until being sold to a third party in 1991.

Despite its involvement in Charles' and Liliane's real

estate transactions, Emperor was not named as a defendant in

Goya's district court action seeking to reach assets of Charles

held in the names of third parties. Liliane says that this is

because Emperor was a Delaware corporation and, as this was also

true of Goya, naming Emperor as the defendant would have

destroyed diversity jurisdiction. Strawbridge v. Curtiss, 7

U.S. (3 Cranch) 267, 267 (1806). Liliane says that it was an

error for the district court to order Emperor, a non-party to

the litigation, to forfeit its property, since Emperor was not

itself a party to the case.

The short answer is that the district court judgment

did not purport to reach properties held by Emperor at all.

Instead, as clarified by the amended judgment of December 14,

1998, the district court directed that the "stock certificates

and shares" of Emperor held by Liliane (it is unclear why both

words were used) should be deposited with the court so that they

could be used to satisfy the judgment. Such a judgment was

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within the district court's power, for Liliane was a party to

the case, and reaching securities that she owns does not require

that the securities' issuer be a party.

4. Miscellany. There remain two other arguments of

importance. First, in his opening brief on appeal, Charles

claims that, in seeking to enforce the New Jersey judgment, Goya

overlooked a procedural precondition. Since the New Jersey

judgment was not initially entered by another federal court, it

could not merely be registered in the federal district court in

Puerto Rico under 28 U.S.C. § 1963 (1994). Rather, enforcement

was governed by Fed. R. Civ. P. 69(a), providing that federal

proceedings to enforce any out-of-state judgment of a state

court should follow the practice of the state in which the

federal district court sits.

Charles asserts that, under Puerto Rico law, for a

foreign judgment to be enforceable in Commonwealth courts, it

must first be validated and domesticated in an "exequatur"

proceeding in the Superior Court of Puerto Rico. Ex parte

Marquez Estrella, 128 D.P.R. 243, 247-56 (1991). This

proceeding allows interested parties to raise certain limited

defenses against the enforcement of a foreign judgment. Charles

says that Goya failed to have the New Jersey judgment validated

in this manner, that the New Jersey judgment was therefore "not

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properly before the District Court," and that lack of an

exequatur proceeding deprived Charles of his right to challenge

validation of the judgment on the permitted grounds.

It may be (we take no position on the matter) that to

enforce a state court judgment in the federal district court in

Puerto Rico, there must be a prior exequatur proceeding8 or some

equivalent opportunity to challenge the non-Commonwealth

judgment in the federal proceeding itself. However, Charles and

Liliane first made their exequatur argument in July 1999, more

than a year and a half after the district court had initially

entered judgment against them. Thus, this argument was not made

in a timely fashion, whether viewed as subject to the ten-day

rule of Fed. R. Civ. P. 59(e) or the more relaxed one-year or

reasonable-time restrictions of Fed. R. Civ. 60(b).9

The exequatur objection is not one that goes to the

district court's subject matter jurisdiction and which might

8Compare Hibbs v. Yashar, 522 F. Supp. 247, 249-54 (D.R.I.
1981) (Rhode Island statute requiring preliminary judicial
screening of medical malpractice cases), with Feinstein v.
Massachusetts Gen. Hosp., 643 F.2d 880, 889 (1st Cir. 1981)
(Massachusetts law requiring screening of medical malpractice
claims by an administrative tribunal). See generally 19 Wright,
Miller & Cooper, Federal Practice and Procedure § 4511 (1996).
9Neither of the amended judgments substantively altered the
original judgment or provided any other excuse for the failure
to raise the exequatur issue in timely fashion. See Berwick
Grain Co. v. Illinois Dep't of Agric., 189 F.3d 556, 560 (7th
Cir. 1999).

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therefore be exempt from the ordinary requirements of

timeliness. See Sea-Land Serv., Inc. v. Ceramica Europa II,

Inc., 160 F.3d 849, 852 (1st Cir. 1998). Nor, it is worth

adding, is there any indication that Charles and Liliane were

precluded from raising in the district court any substantive

objections to the enforcement of the New Jersey judgment that

might have been asserted in a Commonwealth exequatur proceeding.

Charles did claim that the New Jersey court lacked jurisdiction

to enter the judgment against him, but he did not pursue this

issue on appeal in his opening brief, and it is therefore

forfeited.

Second, Liliane claims that the district court erred

by entering a default judgment against her and, later, by not

affording her a jury trial even though the court ultimately

allowed her to present her case on the merits. The district

court entered a default against Liliane in March 1997 as a

sanction for repeated failures to comply with court orders.

Liliane's earlier demand for a jury trial was then struck on

Goya's motion (no other party having made a timely request for

a jury trial). Nevertheless, at trial the district court

reversed field and allowed Liliane’s counsel to offer witnesses

and to present a defense, and it then resolved the claims

against her on the merits. At no time during the trial did

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Liliane offer an objection to the bench trial or ask the court

to reinstate her jury trial request.

On this appeal, little need be said about Liliane’s

challenge to the original default. Although the remedy was

severe, it followed obstreperous acts and clear advance warning

from the district court, and it was not an abuse of discretion.

Cf. Faigin v. Kelly, 184 F.3d 67, 84 (1st Cir. 1999); John's

Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101,

108-10 (1st Cir. 1998). The more troublesome question is

whether, insofar as the district court proceeded to try and

decide Liliane’s case on the merits, it should also have

afforded her the jury trial she originally demanded. In posing

this question, we assume dubitante that the original jury trial

request was proper.10

Assuming that a right to jury trial otherwise existed,

it was not preserved. Once the default was effectively

withdrawn, Liliane could not proceed to present her case without

telling the district court that she wanted the jury request

10
Imposition of a constructive trust is equitable in nature
and, thus, may not trigger the right to a jury trial under the
Seventh Amendment. See Granfinanciera, S.A. v. Nordberg, 492
U.S. 33, 40-42 (1989); RTC v. Pasquariello, 16 F.3d 525, 531 (3d
Cir. 1994); see also Latham v. Father Divine, 85 N.E.2d 168, 170
(N.Y. 1949) ("[A] constructive trust is merely the formula
through which the conscience of equity finds expression . . . ."
(internal quotation marks and citations omitted)).

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reinstated and then, after losing, complain that a jury should

have been afforded. This kind of mouse-trapping, whether

deliberate or inadvertent, is forbidden. Daigle v. Maine Med.

Ctr., Inc., 14 F.3d 684, 687-88 (1st Cir. 1994). A claim to a

jury trial can be forfeited just like any other non-

jurisdictional request or objection.

Appellants present other arguments, including claims

that personal jurisdiction over Charles and Liliane was lacking,

that Charles was denied adequate discovery, that Charles was

entitled to rely on Liliane's request for jury trial, that

(according to Charles) New York law does not apply, and that

misconduct by Goya warranted sanction and dismissal. However,

all of these claims have been raised only in reply briefs, and

it is well-settled that the attempt to present issues in this

manner is untimely and that such claims therefore need not be

considered. Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354

(1st Cir. 1992).

Finally, the appellants argue that a 1974 contractual

release given by Goya precludes Goya's present claims. This

argument was admittedly not presented to the district court and

is therefore forfeited in this court. It is doubtful that such

a defense, if not seasonably asserted, could ever be rescued by

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the plain error doctrine, but in any event there is no

miscarriage of justice in its forfeiture here.

The appellants also have made, or at least insinuated,

a variety of other arguments; to the extent these arguments are

properly before us, we believe that they are without merit, and

we reject them without detailed discussion. For the reasons

stated, the judgment of the district court is affirmed with the

clarification that insofar as the judgment permits Goya to levy

against real properties held in Liliane's name at the time of

judgment, it extends only to those real properties identified in

the district court proceedings and not other unnamed properties.

Appellants have pending a motion for reconsideration of our

prior order striking various exhibits, and we now deny the

motion to reconsider.

It is so ordered.

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