Ramos-Baez v. Bossolo-Lopez

United States Court of Appeals
For the First Circuit

No. 99-2026

CRUZ ESTHER RAMOS-BAEZ,

Plaintiff, Appellant,

v.

DR. EDWIN BOSSOLO-LOPEZ; IRMA RIVERA-DE-BOSSOLO;
CONYUGAL PARTNERSHIP, BOSSOLO-RIVERA,
EXPRESS EMERGENCY CARE, INC.;
ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL;
AND SINDICATO DE ASEGURADORES DE IMPERICIA MEDICO
HOSPITALARIA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Mayra Vazquez-Morales for appellant.
Mirta E. Rodriguez-Mora for appellees Dr. Edwin Bossolo-
Lopez; Irma Rivera-de-Bossolo; Conyugal Partnership, Bossolo-
Rivera; Sindicato de Aseguaradores de Impericia Medico
Hospitalaria.
Roberto Marques-Sanchez for appellee Ashford Presbyterian
Community Hospital.
February 15, 2001
 COFFIN, Senior Circuit Judge. This is a diversity tort

action, brought in the district court of Puerto Rico, in which

the plaintiff-appellant, who alleged medical malpractice against

a doctor and a hospital, appeals from a grant of summary

judgment for defendants-appellees that dismissed the action as

time barred. We affirm.

After suffering burns on her legs from an oven mishap,

appellant received treatment from appellee, Dr. Bossolo-Lopez,

on November 24, 1988. On the next day, she received further

treatment from appellee, Ashford Presbyterian Community

Hospital. Three days later on November 28th, appellant, still

in pain and unsatisfied, sought further medical help from

another doctor, who told her she had been negligently treated by

both Dr. Bossolo and the hospital.

The law of Puerto Rico, which governs this diversity

case, sets a one-year statute of limitations for tort actions.

31 P.R. Laws Ann. § 5298; see also Daigle v. Maine Med. Ctr.,

Inc., 14 F.3d 684, 689 (1st Cir. 1994) ("A federal court sitting

in diversity jurisdiction and called upon in that role to apply

state law is absolutely bound by a current interpretation of

that law formulated by the state's highest tribunal."). Suit

was brought on July 5, 1990, long after November 29, 1989, when

the one-year period expired. Under Puerto Rico law, however,

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the period of limitation may be tolled by one of three events:

a court action, an acknowledgment of debt by a debtor, or an

extrajudicial claim. 31 P.R. Laws Ann. § 5303. The issue

presented in this case is whether the one-year limitations

period was tolled by subsequent extrajudicial claims.

Five letters, appellant argues, constituted

extrajudicial claims that tolled the statute of limitations.

The first three were considered in a motion for summary

judgment; the latter two were presented in a post-judgment

motion for reconsideration. The district court found that the

first letter, sent on March 21, 1989, by appellant's counsel to

Dr. Bossolo, who acknowledged receipt, met the criteria of an

extrajudicial claim required by Puerto Rico law. This preserved

the cause of action until March 22, 1990, but was of no avail to

appellant, whose suit was not filed until almost four months

later. A second letter from appellant's counsel to Dr.

Bossolo's insurer dated July 5, 1989, enclosed a medical report

diagnosing appellant's allegedly inadequate treatment. The

district court held that this letter lacked the specificity

needed to state an extrajudicial claim. The third letter, dated

November 22, 1989, sent by appellant to the hospital, was found

to meet all of the requirements of an extrajudicial claim, but

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did not toll the statute of limitations because there was no

proof the hospital actually received the letter.

After the court rendered summary judgment for

appellees, appellant moved for reconsideration, seeking to amend

the judgment. See Fed. R. Civ. P. 59(e). Appended to that

motion were two letters, dated November 10 and November 17,

1989, in which the hospital purportedly acknowledged appellant's

claim. The court denied the motion in a margin endorsement.

As there is no dispute over the adequacy of the March

21st letter, we begin our analysis with the July 5th letter,

which reportedly submitted a medical report to Dr. Bossolo’s

insurer and indicated that counsel was willing to discuss

settlement. We say "reportedly" because the letter, written in

Spanish, has not been produced in the appendix in an English

translation. Under our local rules, this Court may not consider

non-English documents unless a translation is provided. See 1st

Cir. R. 30.7 (“The court will not receive documents not in the

English language unless translations are furnished.”). In the

past we have refused to consider untranslated documents provided

in an appendix. See United States v. Angueira, 951 F.2d 12, 14

n.1 (1st Cir. 1991).

In this case, the district court, without demur,

accepted the untranslated document, referring to it in the

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summary judgment ruling. It was a letter of only four lines of

text, from which we might accurately divine the essential

message. But overlooking our mandatory rule would raise

difficult questions: Can the district court's generous

accommodation render meaningless our rule governing appellate

presentations? Can we feel free to invoke the rule for

communications we deem complex but ignore the rule for

relatively simple documents we feel competent to interpret? To

answer either of these questions affirmatively would make our

"rule" no more subject to even application than the legendary

chancellor's foot. What might be sensible in the benign arena

of equity is not transferable to a workable rule of procedure.

All counsel, therefore, have the undelegable

responsibility to know and follow the rules applicable to

appeals in this court. That translations may not have been

insisted upon by a district court does not give license to

ignore the appellate rules. Our insistence on adhering to Local

Rule 30.7 arises not from any ideological preference but from a

recognition that loose application leads to uneven, and

therefore unjust, treatment.

We therefore do not consider the July 5th letter, nor

the other untranslated Spanish letters. For whatever balm it is

worth, we do not think appellant is sorely prejudiced by this

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procedural misstep. Puerto Rico law takes a restrictive

approach to recognizing extrajudicial claims. See, e.g.,

Andino-Pastrana v. Municipio De San Juan, 215 F.3d 179, 180 (1st

Cir. 2000); Fernandez v. Chardon, 681 F.2d 42, 54 (1st Cir.

1982) (citing Diaz de Diana v. A.J.A.S. Ins. Co., 110 P.R.R.

602, 607-08 n.1 (1980) ("[A]nything causing an interruption must

be interpreted restrictively.")). The Puerto Rico Supreme

Court's recent application of extrajudicial claim tolling

indicates its limited nature. See De Leon Crespo v. Caparra

Center, 99 TSPR 24 (1999) (trans.).

In De Leon Crespo, the Puerto Rico Supreme Court

construed a letter from a claimant who refused a nominal

settlement and added, "[w]e will promptly file the pertinent

action in the Courts of Puerto Rico." Id., Offic. Trans. at 6.

The court found this language "not a model of perfection, but at

least it met the minimum requirements for an extrajudicial

claim." Id. at 8. It held that the letter tolled the

applicable statute. The letter of July 5th, by contrast, "did

not contain the precision and specificity needed for an

extrajudicial claim." Dist. Ct. Op. at 9. In short, we doubt

the July 5th letter would qualify as an extrajudicial claim.

The third letter, that of November 22, 1989, written

in English, met all extrajudicial claim requirements except for

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proof of receipt by the putative tortfeasor. At oral argument,

counsel for the first time sought to rely on an unidentified

statutory presumption of receipt where letters were properly

addressed and mailed. This argument had never been made in the

district court or briefed to us, and is therefore waived. See,

e.g., Romero v. Colegio De Abogados De Puerto Rico, 204 F.3d

291, 296 n.4 (1st Cir. 2000) (citing United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990)).

This brings us to the last two letters, which didn't

surface until after summary judgment. Two procedural barriers

bar our consideration of these letters. First, the letters of

November 10th and 17th, like the July 5th letter, were provided

to us only in Spanish. Second, they were first disclosed to the

district court in a post-judgment motion for reconsideration,

without any explanation of why they could not have been

discovered earlier. See Appeal of Sun Pipe Line Co., 831 F.2d

22, 25 (1st Cir. 1987) ("[W]e will not overturn the trial

court's decision on [a motion for reconsideration] unless the

appellant can persuade us that the refusal to grant the motion

was a manifest abuse of discretion."). We find no such abuse.

Finally, we do not reach appellant's argument that a

"relationship of solidarity" between Dr. Bossolo and Ashford

Hospital made them joint tortfeasors such that a claim which

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tolled for one, tolled for the other. This argument founders on

our failure to discern any qualifying extrajudicial claim.

Affirmed.

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