UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2227
NYDIA G. RODRIGUEZ, a/k/a
NYDIA G. RODRIGUEZ BRUNO,
Plaintiff, Appellee,
v.
DORAL MORTGAGE CORP.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Selya, Cyr and Stahl, Circuit Judges.
Radames A. Torruella, with whom Carmencita Velazquez-Marquez
and McConnell Valdes were on brief, for appellant.
Erick Morales-Perez, with whom Humberto Ramirez was on
brief, for appellee.
June 23, 1995
SELYA, Circuit Judge. This appeal invites us to
SELYA, Circuit Judge.
explore, and in turn to demarcate, the outer boundaries of a
promontory of federal judicial power. At the base of the appeal
is a sexual harassment suit brought by Nydia G. Rodriguez Bruno
(Rodriguez) against her former employer, Doral Mortgage
Corporation (Doral).1 Premising jurisdiction on the assertion
of a federal civil rights violation, see 28 U.S.C. 1331,
1343(a)(4), the plaintiff pressed a claim under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e to 2000e-17 (1988),
and hitched to it a pendent claim under a Puerto Rico statute
known colloquially as Law 100.2 After first holding that the
amendments embodied in the Civil Rights Act of 1991, Pub. L. No.
102-166, 105 Stat. 1071 (1991) (codified as amended at scattered
sections of 42 U.S.C.), did not apply to this case in light of
Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994), the district
court rejected each of the plaintiff's pleaded claims. The court
nonetheless entered judgment in her favor based on Law 17, P.R.
Laws Ann. tit. 29, 155-155(l) (Supp. 1992)3 and did so
1Technically, Rodriguez and her parents sued Doral and
several associated individuals and entities, including Miguel
Berrios, her immediate supervisor. Because none of these claims
is relevant to this appeal, we treat the case as if it involved
only a suit by Rodriguez (plaintiff-appellee) against Doral
(defendant-appellant).
2In pertinent part, Law 100 forbids, on penalty of both
civil and criminal sanctions, adverse employment actions based on
any one of several protected characteristics, including sex. See
P.R. Laws Ann. tit. 29, 146 (1985).
3In substance, Law 17 penalizes sexual harassment by
employers or their agents. Under its terms as interpreted by the
district court, employers are held strictly liable for damages
2
notwithstanding that the plaintiff had neither pleaded a cause of
action thereunder nor invoked the statute at trial.
Three questions are now before us. (1) May a district
court enter judgment for a plaintiff on a cause of action that
was neither pleaded in the complaint nor raised during the course
of trial? (2) May a district court prior to the close of trial
unilaterally introduce an unpled cause of action into the
proceedings? (3) In any event, may a district court, on remand,
assume supplemental jurisdiction over a nonfederal cause of
action that could have been introduced during trial, when (a)
neither the plaintiff nor the district court in fact introduced
the cause of action before the end of the trial, and (b) the
foundational federal claim, though originally colorable, has
since been repulsed on the merits? Because we answer the first
question in the negative, we must vacate the judgment below.4
We turn then to choice of remedy, and, after answering both the
second and third questions in the affirmative, we remand for
further proceedings.
arising out of harassment in the workplace (at least when
perpetrated by a supervisor). The statutory language is
inexplicit, however, and the Puerto Rico Supreme Court has handed
down only one opinion construing Law 17. See Delgado Zayas v.
Hospital Interamericano de Medicina, 94 J.T.S. 149 (P.R. 1994).
That opinion does not speak to the question of strict liability,
and we regard Law 17's precise meaning as problematic.
4In actuality, the judgment below represents a split
decision. While it encompasses the district court's rulings in
Doral's favor on all the pleaded claims, Rodriguez has not
challenged these rulings and they are unaffected by this appeal.
All references herein to the judgment are, therefore, limited to
the second portion of the judgment, which comprises the award of
damages to the plaintiff under Law 17.
3
I. FACTUAL AND PROCEDURAL HISTORY
I. FACTUAL AND PROCEDURAL HISTORY
We begin with the facts as supportably found by the
district court after a bench trial. See Rodriguez Bruno v. Doral
Mortgage Corp., No. 92-2497, slip op. at 1-9 (D.P.R. Sept. 19,
1994) (D. Ct. Op.). We then proceed to chart the procedural
history of the litigation.
Doral hired Rodriguez in March of 1990 as a loan
processor and transferred her the following January to its Hato
Rey branch. There, she worked as a receptionist under the
hegemony of Miguel Berrios. Over a period of several weeks,
multiple incidents of sexual harassment occurred, including
nonconsensual physical contacts initiated by Berrios. Rodriguez
reported the harassment to two of Doral's top executives. These
officials assured her that Berrios would be transferred, and, as
it turned out, he resigned soon thereafter.
Despite Berrios' departure, Rodriguez filed a complaint
with the Puerto Rico Department of Labor in which she charged
sexual harassment in consequence of an unlawfully hostile work
environment. This grievance ultimately spawned the federal suit.
The case was tried to the bench. The judge found the work
environment to be "hostile" within the meaning of Title VII, but
also found that Doral had neither actual nor constructive notice
of the problem prior to Rodriguez' internal complaints. He
concluded, therefore, that Doral could not be held liable under
Title VII. The judge also ruled that Berrios could not be held
liable because Title VII, as it stood before the 1991 amendments,
4
did not impose liability on individual harassers. See D. Ct. Op.
at 14. So ended the plaintiff's federal claims.
The court, however, did not consign the plaintiff to
the ignominy of unmitigated defeat. Without passing in so many
words on the Law 100 claim, the court departed from the pleadings
on its own initiative and decided the suit in the plaintiff's
favor by recourse to Law 17. Describing Law 17 as a
"complementary statute regarding sexual harassment," and
interpreting it as "provid[ing] for strict liability where the
alleged harasser is a supervisor," id. at 15, the court held
Doral liable to Rodriguez for $100,000 in damages, see id. at 19,
and entered judgment accordingly. Doral now appeals.
II. THE UNPLEADED CLAIM
II. THE UNPLEADED CLAIM
We begin our trek through the thicket of controversy by
attempting to ascertain whether the lower court's entry of
judgment based on Law 17 can be justified from a procedural
standpoint. Because the necessary inquiry focuses on the
inclusion and exclusion of claims in a civil action in a federal
district court, the Federal Rules of Civil Procedure govern. See
Fed. R. Civ. P. 1; see also 28 U.S.C. 2072(b); see generally
Charles A. Wright, Law of Federal Courts 62 (5th ed. 1994).
The lower court's action in respect to the Law 17 claim
implicates no fewer than three of these rules, namely, Rule 8(a),
Rule 15(b), and Rule 54(c). We conduct our examination mindful
of two precepts: (1) that the Civil Rules cannot conjure up
jurisdiction where none otherwise exists, see Fed. R. Civ. P. 82
5
(admonishing that the Civil Rules "shall not be construed to
extend . . . the jurisdiction of the United States district
courts"); Wendy C. Perdue, Finley v. United States: Unstringing
Pendent Jurisdiction, 76 Va. L. Rev. 539, 563 n.146 (1990)
(addressing this limitation), and (2) that apart from the Civil
Rules, "the district courts retain the inherent power to do what
is necessary and proper to conduct judicial business in a
satisfactory manner," Aoude v. Mobil Oil Corp., 892 F.2d 1115,
1119 (1st Cir. 1989).
A. Rule 8(a).
A. Rule 8(a).
Fed. R. Civ. P. 8(a)(2) requires that a complaint
contain, inter alia, "a short and plain statement of the claim
showing that the pleader is entitled to relief . . . ." The
mandate of Rule 8(a)(2) comprises a threshold requirement.
Despite the admonition that "[a]ll pleadings shall be so
construed as to do substantial justice," Fed. R. Civ. P. 8(f),
failure to comply with Rule 8(a)(2) may render an unpleaded claim
noncognizable when the plaintiff (or the court, for that matter)
subsequently teases it out of adduced facts. It would not serve
the interests of justice, for instance, to redeem a totally
unpleaded, unlitigated claim in circumstances that threaten
significant prejudice to a defendant.
The bottom line is simply this: while courts should
construe pleadings generously, paying more attention to substance
than to form, they must always exhibit awareness of the
defendant's inalienable right to know in advance the nature of
6
the cause of action being asserted against him. See Beacon
Theatres, Inc. v. Westover, 359 U.S. 500, 506 (1959); Conley v.
Gibson, 355 U.S. 41, 47 (1957); Campana v. Eller, 755 F.2d 212,
215 (1st Cir. 1985); Shelter Mut. Ins. Co. v. Public Water Supply
Dist. No. 7, 747 F.2d 1195, 1197 (8th Cir. 1984). A fundamental
purpose of pleadings under the Federal Rules of Civil Procedure
is to afford the opposing party fair notice of the claims
asserted against him and the grounds on which those claims rest.
See Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 227 (1st
Cir. 1990). Honoring this purpose ensures that cases will "be
decided on the merits after an adequate development of the
facts." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).
In the case at hand, the plaintiff wholly failed to
plead a Law 17 claim. Her complaint did not delineate such a
claim when filed; she did not add one by formal amendment; she
did not mention the statute in her pretrial filings; and she did
not explicitly refer to it at any point during the trial. In
short, this is not a case in which a properly pleaded legal
theory has been obscured by the parties' concentration on other
theories, cf. Campana, 755 F.2d at 215, but, rather, a case in
which a particular legal theory was never so much as a gleam in
the pleader's eye.
It is true, as the district court observed, that the
pretrial order referred at one point to "strict liability," the
very property with which the district court imbued Law 17. See
D. Ct. Op. at 15. Whatever the potential legal significance of
7
this fleeting mention, it is not sufficiently informative to
satisfy the "short and plain statement" requirement of Rule
8(a)(2). See, e.g., Campana, 755 F.2d at 215. By like token, it
surely did not give Doral fair notice that the plaintiff would
assert a claim premised on Law 17 or that the judge would pull
one out from beneath his robe, like a rabbit from a magician's
hat.
We will not loiter. Though we fully appreciate that a
complaint may be constructively amended as a case proceeds, see,
e.g., Toth v. USX Corp., 883 F.2d 1297, 1298 (7th Cir.), cert.
denied, 493 U.S. 994 (1989), this principle cannot mean that
plaintiffs may leave defendants to forage in forests of facts,
searching at their peril for every legal theory that a court may
some day find lurking in the penumbra of the record. Under the
Civil Rules, notice of a claim is a defendant's entitlement, not
a defendant's burden. The truth-seeking function of our
adversarial system of justice is disserved when the boundaries of
a suit remain ill-defined and litigants are exposed to the
vicissitudes of trial by ambush.
At a bare minimum, even in this age of notice pleading,
a defendant must be afforded both adequate notice of any claims
asserted against him and a meaningful opportunity to mount a
defense. The district court's revisionist treatment of the case
deprived Doral of these perquisites. Thus, unless the district
court's purported adjudication of the Law 17 claim can be
salvaged on some other basis, it must be set aside.
8
B. Rule 15(b).
B. Rule 15(b).
To this end, we next train the lens of inquiry on Fed.
R. Civ. P. 15(b). That rule permits the consideration of
unpleaded claims "by express or implied consent" of the
parties.5 Because the record here discloses no whisper of
express consent even the plaintiff concedes its absence our
inquiry narrows to the possibility of implied consent.
For purposes of Rule 15(b), implied consent to the
litigation of an unpleaded claim may arise from one of two
generic sets of circumstances. First, the claim may actually be
introduced outside the complaint say, by means of a
sufficiently pointed interrogatory answer or in a pretrial
memorandum and then treated by the opposing party as having
been pleaded, either through his effective engagement of the
claim or through his silent acquiescence. See, e.g., Action
Mfg., Inc. v. Fairhaven Textile Corp., 790 F.2d 164, 167 (1st
Cir.) (as amended per curiam) ("As a general principle the
presentation of claims beyond the complaint without objection is
5The rule provides in pertinent part:
When issues not raised by the pleadings are
tried by express or implied consent of the
parties, they shall be treated in all
respects as if they had been raised in the
pleadings. Such amendment of the pleadings
as may be necessary to cause them to conform
to the evidence and to raise these issues may
be made upon motion of any party at any time,
even after judgment; but failure so to amend
does not affect the result of the trial of
these issues. . . .
Fed. R. Civ. P. 15(b).
9
considered an informal amendment of the complaint."), cert.
denied, 479 U.S. 854 (1986); see also Lynch v. Dukakis, 719 F.2d
504, 508 (1st Cir. 1983). Second, and more conventionally,
"[c]onsent to the trial of an issue may be implied if, during the
trial, a party acquiesces in the introduction of evidence which
is relevant only to that issue." DCPB, Inc. v. City of Lebanon,
957 F.2d 913, 917 (1st Cir. 1992); accord Law v. Ernst & Young,
956 F.2d 364, 375 (1st Cir. 1992); Campana, 755 F.2d at 215;
Lynch, 719 F.2d at 508. In other words, "[t]he introduction of
evidence directly relevant to a pleaded issue cannot be the basis
for a founded claim that the opposing party should have realized
that a new issue was infiltrating the case." DCPB, 957 F.2d at
917; accord Galindo v. Stoody Co., 793 F.2d 1502, 1513 (9th Cir.
1986) ("It is not enough that an issue may be `inferentially
suggested by incidental evidence in the record'; the record must
indicate that the parties understood that the evidence was aimed
at an unpleaded issue.") (quoting Cole v. Layrite Prods. Co., 439
F.2d 958, 961 (9th Cir. 1971)).
Here, no such constructive amendment occurred. The
first avenue to implied consent is a dead end: the fleeting
reference to "strict liability" contained in the pretrial order,
see supra pp. 7-8, cannot by any stretch of even the most fertile
imagination support such a finding. See Grand Light & Supply Co.
v. Honeywell, Inc., 771 F.2d 672, 680 (2d Cir. 1985) (cautioning
that "[t]he purpose of Rule 15(b) is . . . not to extend the
pleadings to introduce issues inferentially suggested"). And
10
apart from that one passing allusion, there is nothing to suggest
that a Law 17 claim was insinuated at trial, let alone engaged or
embraced by Doral. The second avenue that sometimes leads to
implied consent is equally unpassable in this setting: the
plaintiff did not introduce any evidence that was relevant only
to a claim under Law 17. Nor is this surprising; when, as now,
the pleaded and unpleaded claims are of much the same genre, the
likelihood of differential discernment on the defendant's part is
relatively low.
In fine, the absence of express or implied consent
renders it impossible to fit the district court's freelancing
within the confines of Rule 15(b). Though we appreciate that the
root purpose of the rule is to combat "the tyranny of formalism,"
Rosden v. Leuthold, 274 F.2d 747, 750 (D.C. Cir. 1960), it cannot
be so liberally construed as to empty Rule 8(a) of all meaning.6
C. Rule 54(c).
C. Rule 54(c).
The plaintiff's last justificatory basis for the
district court's action is Fed. R. Civ. P. 54(c). The rule,
which we have explicated on earlier occasions, see, e.g., Dopp v.
HTP Corp., 947 F.2d 506, 517-18 (1st Cir. 1991); United States v.
6We note that, even if we could detect some indicium of
consent, access to the unguent of Rule 15(b) might well be
blocked on another ground. One limit on the operation of Rule
15(b) is that the opposing party not be prejudiced. See DCPB,
957 F.2d at 917 ("It is axiomatic that amendments which unfairly
prejudice a litigant should not be granted."). Here, Doral had
no advance warning of the Law 17 claim and no meaningful
opportunity to defend against it. Hence, the likelihood of
unfair prejudice looms large. See id.; see also Cioffe v.
Morris, 676 F.2d 539, 542 (11th Cir. 1982).
11
Marin, 651 F.2d 24, 31 (1st Cir. 1981), provides, in relevant
part, that "every final judgment shall grant the relief to which
the party in whose favor it is rendered is entitled, even if the
party has not demanded such relief in the party's pleadings."
According to the plaintiff, the judgment is simply a means of
granting her the relief which she deserved, even though she had
not,inthelanguageoftherule,"demandedsuchreliefin [her]pleadings."
This thesis is hollow at its core. "Rule 54(c) creates
no right to relief premised on issues not presented to, and
litigated before, the trier." Dopp, 947 F.2d at 518; see also In
re Rivinius, Inc., 977 F.2d 1171, 1177 (7th Cir. 1992) (holding
that "Rule 54(c) does not allow [a party] to obtain relief based
upon a . . . theory that was not properly raised at trial");
Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 920, 923-24 (3d
Cir. 1984) (explaining that the rule permits relief predicated on
a particular theory "only if that theory was squarely presented
and litigated by the parties at some stage or other of the
proceedings"); Cioffe v. Morris, 676 F.2d 539, 541 (11th Cir.
1982) (similar). Thus, Rule 54(c)'s concern for appropriate
relief does not include relief which a plaintiff has foregone
because of failures in the pleadings or in the proof. See 6
James W. Moore et al., Moore's Federal Practice 54.62 (2d ed.
1985). Since Rodriguez offers us no principled way around this
settled interpretation of Rule 54(c), we must decline her
invitation to invoke the rule to her advantage.
D. Recapitulation.
D. Recapitulation.
12
We summarize succinctly. In the absence of mutual
consent, a district court may not enter judgment for a plaintiff
on a cause of action that was neither pleaded in the complaint
nor raised during the course of trial. Here, the district
court's resort to Law 17 contravenes this tenet. Moreover, the
court's maneuver cannot be justified under the Civil Rules.
Specifically, the plaintiff did not plead a Law 17 claim within
the purview of Rule 8(a); the nonexistence of consent (express or
implied) negates any suggestion that the pleadings were
constructively amended under Rule 15(b) to include such a claim;
and Rule 54(c) does not overcome these deficiencies because its
safety net cannot be stretched so widely as to grant a plaintiff
relief on an unpleaded theory of which the defendant had no
notice.
For these reasons, we hold that no claim under Law 17
was ever properly before the district court, and that the
judgment cannot stand. A federal district court may not, of its
own volition, after the parties have rested, recast the complaint
and, without notice, predicate its decision on a theory that was
neither pleaded nor tried. See Greene v. Town of Blooming Grove,
935 F.2d 507, 510-11 (2d Cir.) (reversing exercise of
jurisdiction over pendent claim that was neither pleaded nor
discretely raised during the litigation), cert. denied, 502 U.S.
1005 (1991); Ruiz v. Estelle, 679 F.2d 1115, 1157 (5th Cir.)
(rejecting concept that a court may, after trial, spontaneously
consider unpleaded state-law claims through the simple expedient
13
of reshaping the plaintiffs' suit), modified on other grounds,
688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983);
Cioffe, 676 F.2d at 541-43 (to like effect).
III. THE NEXT STEP
III. THE NEXT STEP
Setting aside the judgment takes us only part of the
way. We must now consider the next step. The defendant
beseeches us to direct the entry of a take-nothing judgment.
Because the plaintiff lost on the merits of each of her pleaded
claims, we recognize that it is within our power to oblige.
Before charting our course, however, we pause to mull whether
remand is an available alternative, and, if so, whether that
alternative is preferable.
Undoubtedly, a remand under the conditions that obtain
here presents potential problems. For one thing, the propriety
of the district court's unilateral effort to insinuate an
unpleaded claim into the case is open to question. For another
thing, the foundational federal claims are now out of the picture
the plaintiff never cross-appealed from the adverse judgment on
those claims, see supra note 4 and the district court's
continued jurisdiction over a supplemental claim arising solely
under Puerto Rico law may seem suspect. Third, the Law 17 claim
itself, if free-standing, would now be time-barred. Finally,
even if none of these factors absolutely precludes the
discretionary exercise of remandatory jurisdiction, remand may
not be the best available alternative. In the pages that follow,
we address these concerns and then settle upon our next step.
14
A. The Court's Power.
A. The Court's Power.
Since the question of whether a district court has the
power to introduce an unpleaded claim on its own initiative even
up to (or beyond) the close of the trial and the question of
whether a district court has the power to introduce such a claim
on remand are closely related, we consider them in the ensemble.
1. In General. The proper functioning of our
1. In General.
adversarial system of justice depends not only on the parties'
vigorous advocacy of their positions but also on the judge's
adroit supervision of the litigation. The sphere of case
management extends to the definition of legal issues. To mention
one of many possible illustrations, a district court possesses
the authority to recommend to a plaintiff how she might reshape
the complaint to escape dismissal. See, e.g., Friedlander v.
Nims, 755 F.2d 810, 813 (11th Cir. 1985). Similarly, a district
court, exercising its powers under Fed. R. Civ. P. 15(b), in a
proper case, "may amend the pleadings merely by entering findings
on the unpleaded issues," Galindo, 793 F.2d at 1513 n.8
(collecting cases), even though neither party has essayed a
formal amendment.
We think it follows that a district court has the power
to introduce a claim (or, rather, to prompt a party to introduce
a claim) at any time during the course of litigation. This power
does not vanish at the tail end of a trial, even though both
sides have rested. See, e.g., Campana, 755 F.2d at 215
(recognizing court's authority to permit amendment as late as
15
during jury deliberation). This conclusion does not clash with
either the letter or the spirit of Fed. R. Civ. P. 15(a).
Although that rule plainly favors early amendments, see, e.g.,
id. (authorizing one revision "as a matter of course" if made
within certain time constraints), it sets no outer time limit on
amendments; the drafters chose instead to leave the matter within
the discretion of the nisi prius court. See Benitez-Allende v.
Alcan Aluminio do Brasil, S.A., 857 F.2d 26, 36 (1st Cir. 1988),
cert. denied, 489 U.S. 1018 (1989); see also Fed. R. Civ. P.
15(a) (providing that leave to amend "shall be freely given when
justice so requires").
As this discussion indicates (and as Fed. R. Civ. P. 15
and 28 U.S.C. 1367 confirm, see infra), the court below could
properly have called attention to the prospect of a new,
unpleaded (but related) claim at any time as long as it adopted
appropriate measures to safeguard against unfair prejudice.
2. On Remand. Of course, the posture of the case is
2. On Remand.
now somewhat different. Doral argues that, on remand, the
district court, even if it originally enjoyed the authority to
introduce or entertain a new, unpleaded (but related) claim,
would not still possess that power. We do not agree. Since a
new, unpleaded (but related) claim could have been asserted
during the trial, we see no reason to constrain a party from
asserting such a claim on remand, or, correspondingly, to limit
the district court's discretion in terms of entertaining such a
claim. See Benitez-Allende, 857 F.2d at 36; Duckworth v.
16
Franzen, 780 F.2d 645, 656-57 (7th Cir. 1985), cert. denied, 479
U.S. 816 (1986). We hold, therefore, that, apart from incipient
jurisdictional problems, a district court, on remand, retains its
discretionary authority to entertain a new, unpleaded (but
related) claim.7
B. Supplemental Jurisdiction.
B. Supplemental Jurisdiction.
Having traced the contours of the district court's
discretionary power to entertain a new, unpleaded (but related)
claim, both at trial and on remand, and finding that the
plaintiff's Law 17 claim fits into this category, we must yet
determine whether the court below can exercise supplemental
jurisdiction over such a claim on remand even though the
foundational federal claim is now ancient history. After
carefully considering the conundrum, we conclude that the
exercise of supplemental jurisdiction would be proper.8
1. In General. The controlling statute, 28 U.S.C.
1. In General.
1367(a), states in relevant part:
7The fact that the statute of limitations for the claim may
have lapsed does not present an insurmountable obstacle. If the
new claim arises out of the same nucleus of operative fact, it
will ordinarily relate back to the date of the institution of the
suit. See Fed. R. Civ. P. 15(c); see also Benitez-Allende, 857
F.2d at 36; Duckworth, 780 F.2d at 656-57.
8"Supplemental jurisdiction" is the currently fashionable
term, embraced by Congress in drafting 28 U.S.C. 1367, that now
blankets both "pendent jurisdiction" and its kissing cousin,
"ancillary jurisdiction." See Wright, supra, at 9, 19
(discussing ancillary and pendent jurisdiction, respectively, and
how those doctrines have been codified and modified by section
1367). Balancing the past and the present melding the wisdom
of tradition with the virtue of progress we opt for a middle
course and use the terms "supplemental jurisdiction" and "pendent
jurisdiction" interchangeably.
17
[I]n any civil action of which the district
courts have original jurisdiction, the
district courts shall have supplemental
jurisdiction over all other claims that are
so related to claims in the action within
such original jurisdiction that they form
part of the same case or controversy under
Article III of the United States
Constitution. . . .
In enacting section 1367, Congress essentially codified the
rationale articulated in United Mine Workers v. Gibbs, 383 U.S.
715 (1966). See Edmondson & Gallagher v. Alban Towers Tenants
Ass'n, 48 F.3d 1260, 1266 (D.C. Cir. 1995); Borough of W. Mifflin
v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995); see generally
Elizabeth Delagardelle, Note, Defining the Parameters of
Supplemental Jurisdiction After 28 U.S.C. 1367, 43 Drake L.
Rev. 391 (1994). The Gibbs Court instructed that pendent
jurisdiction exists when "the relationship between [the federal]
claim and the state claim permits the conclusion that the entire
action before the court comprises but one constitutional `case.'"
Gibbs, 383 U.S. at 725.9 In particular, "[t]he state and
federal claims must derive from a common nucleus of operative
fact." Id. Thus, "if, considered without regard to their
federal or state character, a plaintiff's claims are such that
[she] would ordinarily be expected to try them all in one
judicial proceeding, then, assuming substantiality of the federal
issues, there is power in federal courts to hear the whole."
9The references to "state" law or "state" claims in Gibbs
and in the statute, see 28 U.S.C. 1367(c)-(d), are not to be
construed literally. Section 1367(e) expressly provides that
"the term `State' includes . . . the Commonwealth of Puerto Rico
. . . ."
18
Id.; see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349
(1988); Vera-Lozano v. International Broadcasting, 50 F.3d 67, 70
(1st Cir. 1995); Brown v. Trustees of Boston Univ., 891 F.2d 337,
356 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990); Ortiz v.
United States, 595 F.2d 65, 68-69 (1st Cir. 1979).
The relationship between the plaintiff's Title VII
claim and her inchoate claim under Law 17 matches the Gibbs
Court's description in all significant respects. Both claims are
civil rights claims; both derive from a reservoir of common
facts; and, as a consequence, both would ordinarily be heard
together in a single consolidated trial. See, e.g., Andrea
Catania, State Employment Discrimination Remedies and Pendent
Jurisdiction Under Title VII: Access to Federal Courts, 32 Am.
U. L. Rev. 777, 793 (1983). Despite this apparent fit, appellant
argues for an opposite result, contending that Congress, in
enacting Title VII, forbade jurisdiction over supplemental claims
by implication. Although there appears to be a smattering of
authority in favor of this position, see, e.g., Executive
Software N. Am., Inc. v. United States Dist. Court for the Cent.
Dist. of Cal., 24 F.3d 1545, 1554 n.6 (9th Cir. 1994) (noting
cases so holding); 13B Charles A. Wright et al., Federal Practice
and Procedure 3567.1, at 24 & nn.30.1-30.2 (Supp. 1995) (same),
we reject it outright.
In our judgment, section 1367 itself disproves
appellant's hypothesis. Whatever may have been the situation
19
before the enactment of the supplemental jurisdiction statute10
it may have been possible then to detect scattered signs of
implied negation, see Kitchen v. Chippewa Valley Sch., 825 F.2d
1004, 1010 (6th Cir. 1987) (citing district court cases finding
implied negation of pendent jurisdiction under Title VII prior to
the passage of 28 U.S.C. 1367) section 1367 specifically
authorizes supplemental jurisdiction "[e]xcept . . . as expressly
provided otherwise by Federal statute . . . ." 28 U.S.C.
1367(a). Since the statutory text is unambiguous, and no court
or commentator ever has maintained that Title VII expressly
negates pendent jurisdiction, there is simply no credible basis
on which the statute's broad jurisdictional grant can be
shortstopped in the Title VII context.
One additional point is worth making. While habit or
practice is by no means the barometer of jurisdictional power, we
find it telling that we have not heretofore encountered, let
alone embraced, the radical hypothesis advanced by the appellant.
To the precise contrary, we have regularly entertained suits in
10Even prior to the enactment of section 1367, the case for
implied negation was asthenic. See, e.g., Thompkins v. Stuttgart
Sch. Dist. No. 22, 787 F.2d 439, 442 (8th Cir. 1986) (rejecting
negation argument and holding that a district court "properly
could have exercised jurisdiction over a state claim pendent to
the . . . Title VII claim"); Catania, supra, at 796 ("Neither the
language nor legislative history of title VII reveals any
congressional intent to negate the exercise of pendent
jurisdiction over related nonfederal claims asserted against the
title VII defendant."); Richard D. Freer, Compounding Confusion
and Hampering Diversity: Life After Finley and the Supplemental
Jurisdiction Statute, 40 Emory L.J. 445, 462 (1991) (remarking
that "[m]ost courts that bothered to mention the need for a
statutory basis . . . appear to have upheld jurisdiction").
20
which plaintiffs have joined Title VII claims with pendent state-
law claims and we have done so both before and after the
passage of section 1367. See, e.g., Vera-Lozano, 50 F.3d at 70;
Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 121 (1st Cir.
1992) (per curiam); Conway v. Electro Switch Corp., 825 F.2d 593,
595 (1st Cir. 1987).
To recapitulate, a sexual harassment claim brought
pursuant to state law falls within the district court's
supplemental jurisdiction when, as now, the court's original
jurisdiction derives from the assertion of a Title VII claim
arising out of the same facts. Thus, the court below plainly
possessed the raw power to exercise supplemental jurisdiction
over a claim under Puerto Rico Law 17, had one been asserted.
2. On Remand. Having determined that supplemental
2. On Remand.
jurisdiction would have attached had a Law 17 claim been advanced
ab initio, we must further determine whether such jurisdiction
remains available on remand, given that the district court has by
now slain the plaintiff's Title VII claim on the merits. Based
on controlling law, we conclude that supplemental jurisdiction
would be proper despite the interment of the plaintiff's
foundational federal cause of action.
As a general principle, the unfavorable disposition of
a plaintiff's federal claims at the early stages of a suit, well
before the commencement of trial, will trigger the dismissal
without prejudice of any supplemental state-law claims. See,
e.g., Gibbs, 383 U.S. at 726 ("[I]f the federal claims are
21
dismissed before trial, . . . the state claims should be
dismissed as well."); Martinez v. Colon, F.3d , (1st
Cir. 1995) [No. 94-2138, slip op. at 24] (affirming the dismissal
without prejudice of pendent claims when the district court
determined "far in advance of trial that no legitimate federal
question existed"). But this praxis is not compelled by a lack
of judicial power. It signifies only that, "in the usual case in
which all federal law claims are eliminated before trial, the
balance of factors to be considered under the pendent
jurisdiction doctrine judicial economy, convenience, fairness,
and comity will point toward declining to exercise jurisdiction
over the remaining state-law claims." Carnegie-Mellon Univ., 484
U.S. at 350 n.7. In an appropriate situation, a federal court
may retain jurisdiction over state-law claims notwithstanding the
early demise of all foundational federal claims. See, e.g.,
Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284, 1287-88 (6th
Cir. 1992). Thus, as long as the plaintiff's federal claim is
substantial, the mere fact that it ultimately fails on the merits
does not, by itself, require that all pendent state-law claims be
jettisoned. See, e.g., Duckworth, 780 F.2d at 656-57; Warehouse
Groceries Mgt., Inc. v. Sav-U-Warehouse Groceries, Inc., 624 F.2d
655, 658-59 (5th Cir. 1980). In other words, a court need not
always throw out the bath water with the baby.
To be sure, the exercise of supplemental jurisdiction
in such circumstances is wholly discretionary. And, moreover,
the district court, in reaching its discretionary determination
22
on the jurisdictional question, will have to assess the totality
of the attendant circumstances. Because each case is bound to
have its own distinctive profile, we are reluctant to compose a
list of important elements. Instead, we cite two examples to
illustrate the wide variety of considerations that may
appropriately enter into the calculus. The running of the
statute of limitations on a pendent claim, precluding the filing
of a separate suit in state court, is a salient factor to be
evaluated when deciding whether to retain supplemental
jurisdiction. See, e.g., Wright v. Associated Ins. Cos., 29 F.3d
1244, 1251 (7th Cir. 1994); Newman v. Burgin, 930 F.2d 955, 963
(1st Cir. 1991). Another factor to be weighed is the clarity of
the law that governs a pendent claim, for a federal court may be
wise to forgo the exercise of supplemental jurisdiction when the
state law that undergirds the nonfederal claim is of dubious
scope and application. See, e.g., 28 U.S.C. 1367(c)(1)
(authorizing district courts to "decline to exercise supplemental
jurisdiction over a claim . . . if . . . the claim raises a novel
or complex issue of State law"); see also Moor v. County of
Alameda, 411 U.S. 693, 716 (1973); Gibbs, 383 U.S. at 726 & n.15.
We will not attempt to single out all the elements that
could potentially tip the balance here. That is grist for the
district court's mill. It suffices for our purposes to remark
the obvious: that although the plaintiff's Title VII claim
ultimately succumbed on the merits, it was colorable when
brought. Consequently, the district court's power to exercise
23
discretionary supplemental jurisdiction over a putative Law 17
claim, extant at the time of trial, will remain intact on remand.
C. Charting a Course.
C. Charting a Course.
To this point, we have held (1) that, as a general
proposition, supplemental jurisdiction over state-law claims is
not precluded in Title VII actions; (2) that, in this case, had
proper procedures been employed, the district court could
appropriately have exercised supplemental jurisdiction over a
claim brought pursuant to Puerto Rico Law 17; and (3) that the
district court remains empowered, in its discretion, to entertain
a Law 17 claim on remand. This means, of course, that remand
ranks as a viable option from our standpoint.
We believe that remand is not only a viable option but
also the best available course. In the first place, a hoary
policy of the law favors the disposition of claims on the merits.
See, e.g., HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas,
Inc., 847 F.2d 908, 917 (1st Cir. 1988) (discussing need to
consider "the policy of the law favoring the disposition of cases
on the merits"). In the second place, considerations of fairness
counsel in favor of a remand as opposed to a disposition by fiat.
After all, a trial is a search for the truth, not merely a battle
of wits between jousting attorneys. Third and perhaps most
important our determination rests upon a close analysis of the
nature of the decisionmaking that a remand would entail. We
explain briefly.
The multifaceted decision about whether to permit the
24
plaintiff to proffer a Law 17 claim and whether to exercise
supplemental jurisdiction over it lies in the heartland of
judicial discretion. Because the plaintiff neither pleaded nor
otherwise seasonably advanced a Law 17 claim, the court may in
its discretion simply deem the case concluded and enter a take-
nothing judgment on the pleaded claims. In the alternative, the
court may in its discretion choose to reopen the proceedings and
invite the plaintiff to move, under Fed. R. Civ. P. 15(a), for
leave to amend her complaint in order to assert a Law 17 claim.
If that is done, the court (and the parties) will then face a
series of judgment calls. For example, adjudicating the Rule 15
motion necessitates a further exercise of the court's
discretion.11 See Coyne v. City of Somerville, 972 F.2d 440,
446 (1st Cir. 1992); Correa-Martinez v. Arrillaga-Belendez, 903
F.2d 49, 59 (1st Cir. 1990). The court will also have to
determine whether it will exercise supplemental jurisdiction,
another decision that is largely discretionary. See, e.g.,
Gibbs, 383 U.S. at 726 (explaining that pendent jurisdiction "is
a doctrine of discretion, not of plaintiff's right"); see also
11We doubt that the district court, if it decides to cross
this bridge, will have an easy time in passing upon a Rule 15(a)
motion. Although the rule evinces a definite bias in favor of
granting leave to amend, see Jamieson v. Shaw, 772 F.2d 1205,
1208 (5th Cir. 1985), it frowns upon undue delay in the amendment
of pleadings, particularly if no legitimate justification for the
delay is forthcoming, see, e.g., Quaker State Oil Ref. Corp. v.
Garrity Oil Co., 884 F.2d 1510, 1517-18 (1st Cir. 1989); United
States Inv. & Dev. Corp. v. Cruz, 780 F.2d 166, 168 (1st Cir.
1986). A host of other factors also may be relevant and may
compound the decisionmaker's difficulties. See, e.g., Foman v.
Davis, 371 U.S. 178, 182 (1962) (listing several considerations).
25
Newman, 930 F.2d at 963 (reviewing factors pertinent to the use
or withholding of supplemental jurisdiction); cf. 28 U.S.C.
1367(c)(3) (expressly authorizing a district court to decline the
exercise of supplemental jurisdiction when it "has dismissed all
claims over which it has original jurisdiction").
Given the critical role of discretion in the decisions
that must be made, we think that the district court is better
equipped to take the laboring oar and to determine whether the
case should proceed (and if so, on what terms). As we have
remarked before, "[t]he very nature of a trial judge's
interactive role assures an intimate familiarity with the nuances
of ongoing litigation a familiarity that appellate judges,
handicapped by the sterility of an impassive record, cannot hope
to match." Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st Cir. 1994).
Here, choosing not to remand would effectively ignore the
district court's special competence in the realm of discretionary
decisionmaking. Because we can discern no basis for displacing
the trier in so peremptory a manner, we conclude that remand
represents the most appropriate remedy in this instance.
IV. CONCLUSION
IV. CONCLUSION
We need go no further. The authority of the federal
courts to entertain grievances is neither autopoetic nor
illimitable; it must, in all instances, be traceable to and
constrained by an antecedent constitutional or statutory grant.
See generally U.S. Const. art. III, 1-2; Cary v. Curtis, 44
U.S. (3 How.) 236, 245 (1845). Here, because the record reveals
26
no such mode of empowerment the district court's award rested
on a claim that was never properly introduced into the case the
judgment entered below cannot stand.
Nonetheless, the district court continues to possess
the power to entertain a properly presented claim under Puerto
Rico Law 17 even at this late date. Hence, we remit the case for
a more considered appraisal of this aspect of the matter. On
remand, the trial court may simply bring the litigation to a
close,12 or it may elect, in its discretion, to allow the
plaintiff the opportunity to present and to develop such a claim,
subject to any constraints imposed by the jurisprudence of Fed.
R. Civ. P. 15 and 28 U.S.C. 1367. If the court pursues the
latter route, it must concomitantly ensure that the parties are
provided adequate discovery and "the standard prophylaxis that
generally obtains at trial." Lussier v. Runyon, 50 F.3d 1103,
1113 (1st Cir. 1995), petition for cert. filed (U.S. June 5,
1995) (No. 94-1979). Nothing we have said in this opinion should
be interpreted as an effort to suggest a result to the lower
court.
12Should the district court opt, in its discretion, to
follow this course and deny leave to amend, it may further choose
to condition that order on the defendant's stipulation not to
raise a statute-of-limitations defense if the plaintiff attempts
to press a Law 17 claim in a Puerto Rico court. See Edwards v.
Okaloosa Cty., 5 F.3d 1431, 1435 n.3 (11th Cir. 1993) ("When
considering dismissal of pendent claims after a state statute of
limitations has run, district courts commonly require the
defendants to file a waiver of the statute of limitations defense
as a condition of dismissal."); Duckworth, 780 F.2d at 657
(conditionally remanding pendent claim).
27
Vacated and remanded. No costs.
Vacated and remanded. No costs.
28