Rodriguez-Bruno v. Doral Mortgage

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