United States Court of Appeals
For the First Circuit
No. 00-1707
FRANCO MORALES; GLORIA VILLARUBIO;
CONJUGAL PARTNERSHIP MORALES-VILLARUBIO,
Plaintiffs, Appellants,
v.
A. C. ORSSLEFF’S EFTF,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Harry A. Ezratty for appellants.
William A. Graffam, with whom Patricia A. Garrity was on
brief, for appellee.
April 11, 2001
COFFIN, Senior Circuit Judge. This is a maritime tort
action in which plaintiff-appellant Franco Morales, a San Juan
harbor pilot, appeals from a summary judgment in favor of
defendant-appellee, owner of the vessel M/V Malene. Morales
seeks damages for an injury occasioned by a fall as he was
disembarking from the Malene and boarding the plaintiff's pilot
boat after guiding the Malene out of San Juan Harbor. The
complaint alleged that defendant was negligent for failing to
"make a lee," i.e., to turn the Malene perpendicular to the
waves as requested in order to minimize pitching on the leeward
side of the boat from which plaintiff was disembarking. Morales
also claimed that the rope ladder used to exit the Malene was
not in a safe position, and that the area was not properly
illuminated. On the basis of facts deemed admitted because they
were not controverted by the plaintiff, and his own deposition
testimony, the district court held that the sole cause of the
accident was Morales' own negligence. We affirm.
This case is a lesson in summary judgment practice.
As might be expected, the various motion papers, memoranda,
exhibits, affidavits, and depositions of parties, witnesses, and
experts produced an appendix of two thick volumes. In such a
case, the filing of a motion for summary judgment signals a
formidable search for a genuine issue of material fact. If this
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is not to impose the daunting burden of seeking a needle in a
haystack, the court needs help from counsel. Almost two decades
ago, we confessed our increasing "frustration [with] the more
and more typical phenomenon . . . of a district court having to
decide a motion for summary judgment without the assistance the
court should expect from counsel." Stepanischen v. Merchants
Despatch Transp. Corp., 722 F.2d 922, 927 (1st Cir. 1983). We
encouraged district courts to adopt "anti-ferreting" rules,
which warn parties opposing summary judgment that, to preclude
judgment as a matter of law, they must identify factual issues
buttressed by record citations. "[O]nce so warned," we added,
"a party's failure to comply would, where appropriate, be
grounds for judgment against that party." Id. at 931.
The district of Puerto Rico has such a rule, Local Rule
311.12, which in relevant part requires a party opposing summary
judgment to submit "a separate, short, and concise statement of
the material facts as to which it is contended that there exists
a genuine issue to be tried, properly supported by specific
reference to the record." D.P.L.R. 311.12. We have recently
reiterated, with reference to this particular rule, that
"parties ignore [it] at their own peril," and that "failure to
present a statement of disputed facts, embroidered with specific
citations to the record, justifies deeming the facts presented
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in the movant's statement of undisputed facts admitted." Ruiz
Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (citing prior
cases).
Along with its motion for summary judgment, defendant-
appellee submitted to the district court, in accordance with the
local rule, a statement meticulously enumerating some three
dozen uncontested facts. Plaintiff responded by filing
contemporaneously two separate documents, his own designation of
uncontested facts and an opposition to defendant's statement of
uncontested facts, both of which were deficient.
Two thirds of the items listed in plaintiff's
designation of uncontested facts are either completely
unsupported by citations to the record, or else only reference
an entire deposition or statement without page citations. There
is not a single record citation in plaintiff's opposition to
defendant's statement of uncontested facts. Plaintiff accepted
two-thirds of the proffered statements. Among those to which
the plaintiff objected, the district court found none sufficient
to raise a triable issue, and accordingly granted summary
judgment in favor of defendant.
The district court found that by conceding facts
proffered by the defendant, and then lending support to those
uncontroverted facts in his deposition, Morales admitted that he
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alone was at fault for his injury. Although plaintiff contested
the general proposition that harbor pilots take over the command
of vessels once aboard, he accepted defendant's proffered fact
number 8, which stated that, on this occasion, Morales gave all
instructions and navigational orders for maneuvering the Malene
"up to and including the positioning of the vessel for his
disembarkation." He also accepted number 30, defendant's
characterization of the critical moment: "[Morales] stepped from
the ladder into the pilot boat when he deemed it safe to do so."
This admission was based on Morales' own deposition testimony,
specifically referenced by defendant in number 30:
Q. [H]ow long a time was it that you waited at the
ladder for the captain to make this turn that you had
asked him to make?
A. It would have been three or five seconds, five
minutes. Not seconds; minutes.
* * *
Q. [D]id the MALENE actually start the turn to the
left, as you had asked them?
A. As I asked, and he would run back in and I guess
he would put more w[heel] to the ship and the ship
would have come down. By that time, not only would
the ship help the swell, but the swell would ease down
with the boat and as the boat came up, I saw that it
was safe enough for me to grab the boat and release
the ladder and that's what I did. It so happened
that[,] as I let go of the ladder[,] the boat just
went down, the swell went down, and I went down with
it.
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Thus, Morales' deposition testimony reflecting his own judgment
about the conditions for disembarkation foreclosed any
possibility of recovery from defendant.
On appeal, recognizing the damning nature of his own
testimony, Morales points to other evidence, which, he argues,
contradicts the version of events articulated in his deposition
and thereby creates a triable issue for a jury. He cites two
items, neither of which we find persuasive.
The first, deposition testimony of another harbor
pilot, Montes, who claimed to have seen the Malene heading due
north out to sea, suggests that the vessel at some unidentified
time was not turning to shelter the leeward side as requested by
Morales. But this fact, even if true, does nothing to
contradict the uncontested facts that Morales was in charge of
the Malene's course during the positioning maneuver and that he
and he alone decided when to jump. Furthermore, in his
submissions to the district court, plaintiff made only a general
reference to Montes' testimony without pinpointing where in that
89-page deposition support for that reference could be found.
This is precisely the situation that Local Rule 311.12 seeks to
avoid. As the district court generously observed, although
plaintiff did not fully comply with Local Rule 311.12, that
deficiency was "not at all outcome determinative in the instant
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case." In this circumstance, we would not be inclined to give
such hitherto unreferenced testimony dispositive effect on
appeal. Forgiving plaintiff's noncompliance with the local rule
would undercut our efforts over the years to enlist counsel as
aides to the court.
The other evidence from which plaintiff purports to
raise an issue of fact is Morales' affidavit, which was filed in
opposition to defendant's motion for summary judgment some
twenty months after his deposition, and which contradicts his
prior deposition testimony. In the affidavit, Morales averred
that the Malene turned ten degrees to port as requested, but
that was not enough. He returned from the ladder to the deck
and shouted to the captain to turn more to port. Then, the
affidavit states:
I waited some time and returned to the ladder. I
still did not have what I asked for. I told the men
standing by, [sic] about my problem. At this time no
one was complying with my requests. I had no choice
but to try to board the pilot boat under these
conditions. I waited for the correct moment to go
into the pilot boat. I would say it took me about a
half hour from the time I left the wheelhouse until I
was finally able to get on to the pilot boat. That
was the time I injured myself.
The disparity of views between those expressed in this
affidavit and those in Morales' earlier deposition is dramatic.
In his deposition, Morales testified that he leaped when he
thought it was safe. The affidavit, by contrast, describes him
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as having "no choice" but to jump when he did. The distinct
implication of Morales' deposition testimony was that the ship
was responding to his instructions; the affidavit states that
there was absolutely no compliance.
These disparities, however, do not create a jury
question. We have refused to allow issues of fact to be created
simply by submitting a subsequent contradictory affidavit.
Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1, 4-5 (1st Cir.
1994) ("When an interested witness has given clear answers to
unambiguous questions, he cannot create a conflict and resist
summary judgment with an affidavit that is clearly
contradictory, but does not give a satisfactory explanation of
why the testimony is changed."); see also Torres v. E.I. DuPont
De Nemours & Co., 219 F.3d 13, 20-21 (1st Cir. 2000). We adhere
to that practice now.
We therefore conclude as a matter of law that the
defendant was not at all negligent in its maneuvering of the
vessel during plaintiff's disembarkation. The two remaining
issues, ladder position and illumination, are likewise precluded
by plaintiff's own account. Morales admitted that there was
nothing physically wrong with the ladder and that it was secured
firmly. He did not contend that a lack of visibility on the
part of the harbor pilot had anything to do with the accident.
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Nor does he argue that improper lighting in any way affected his
decision when to disembark. There is simply no basis to
conclude that the ladder or visibility had anything to do with
the accident.
Appellant devotes a surprising amount of space in his
brief to arguing that the court improperly relied on the opinion
evidence of his former expert, who subsequently gave damaging
testimony supporting the defendant. Although this testimony was
also not controverted, it played no significant part in our
analysis.
Affirmed.
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