Corrada Betances v. Sea-Land Service, Inc.

          United States Court of Appeals
                     For the First Circuit


No. 00-2153

                  FRANCISCO CORRADA BETANCES,

                     Plaintiff, Appellant,

                              v.

                    SEA-LAND SERVICE, INC.,

                     Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

     [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]


                            Before

                    Selya, Boudin and Lynch,

                        Circuit Judges.


     Harry Anduze Montaño and Noelma Colon Cordoves on brief for
appellant.
     Raquel M. Dulzaides, Carlos George, and Jimenez, Graffam &
Lausell on brief for appellee.




                          May 3, 2001
            SELYA, Circuit Judge.          In this appeal, plaintiff-

appellant Francisco Corrada Betances (Corrada) invites us to

reverse a summary judgment order entered in favor of his former

employer, defendant-appellee Sea-Land Service, Inc. (Sea-Land).

We decline the invitation.

                                     I

            The summary judgment record (which, as we shall see,

consists almost entirely of Sea-Land's submissions) reveals

that, in late 1992, Corrada began working as assistant manager

of Sea-Land's marine department in Puerto Rico.                  His duties

involved supervising the loading and unloading of vessels and

performing ancillary administrative tasks.

            At all times relevant hereto, Sea-Land had in force a

personnel policy prohibiting employees both from drinking while

working    and   from   appearing   at    work   under   the   influence   of

alcohol.    The policy stipulated that a first infraction would

result in a two-week suspension without pay and that a second

infraction, occurring within eighteen months of the first, would

result in loss of employment.       Sea-Land furnished a copy of this

policy to Corrada coincident with his hiring.

            At the end of his shift on April 21, 1997, Corrada left

Sea-Land's premises with Ernie Ostolaza, a fellow supervisor.

The pair visited various watering holes, imbibing as they went.


                                    -3-
Five       hours    later,   they    returned    to    Sea-Land's    premises   to

retrieve Ostolaza's car.                  After they arrived, they did not

simply drive away, but, rather, entered the marine department

office (where others were still toiling) and engaged in raucous

behavior.          The matter apparently was reported through channels

and, on April 22, Corrada and Ostolaza were suspended for two

weeks.        For aught that appears, this suspension was neither

vacated nor overturned.1

              Corrada returned to work in May.               On November 11, 1997,

he called the office to say that he would be late for work.

When he arrived, he was wearing the same clothes that he had

been wearing the day before, and a fellow supervisor, Victor

Ortega, smelled a strong odor of alcohol on his breath.                    Various

co-workers         noticed     slurred     speech,    bloodshot    eyes,   slumped

posture, and other indicia of inebriation.                    The marine manager,

Juan       Carrero,    spent    a   few    minutes    with    Corrada,   obviously

disliked what he saw, told Corrada that he was in no shape to

work, and ordered him to leave the premises.                   The next day, Sea-

Land terminated Corrada's employment.

                                            II


       1
     This undermines the claim made in Corrada's appellate
brief, that his initial suspension was unwarranted under a
literal interpretation of the personnel policy (which threatens
suspension if an employee "is found to be drinking on the job or
if [he] reports to work under the influence of alcohol").

                                           -4-
          Invoking diversity jurisdiction, 28 U.S.C. § 1332(a),

Corrada sued Sea-Land in Puerto Rico's federal district court.

He charged that his firing was unjustified, that statements made

by Sea-Land's hierarchs regarding his discharge violated his

privacy rights, and that Sea-Land had defamed him.      The case

ended when the district court granted Sea-Land's motion for

summary judgment.   Corrada Betances v. Sea-Land Serv., Inc., No.

99-1671 (D.P.R. July 24, 2000) (unpublished).        This appeal

ensued.

                               III

          There is little point in attempting to reinvent a well-

fashioned wheel.    Where, as here, a trial judge astutely takes

the measure of a case and hands down a convincing, well-reasoned

decision, "an appellate court should refrain from writing at

length to no other end than to hear its own words resonate."

Lawton v. State Mut. Life Assur. Co., 101 F.3d 218, 220 (1st

Cir. 1996); accord Cruz-Ramos v. P.R. Sun Oil Co., 202 F.3d 381,

383 (1st Cir. 2000); Ayala v. Union de Tronquistas de P.R.,

Local 901, 74 F.3d 344, 345 (1st Cir. 1996); Holders Capital

Corp. v. Cal. Union Ins. Co. (In re San Juan Dupont Plaza Hotel

Fire Litig.), 989 F.2d 36, 38 (1st Cir. 1993).     Consequently,

with one exception (discussed infra), we affirm the judgment

below for substantially the reasons elucidated in Judge Pieras's


                               -5-
thoughtful rescript.         We add only a few comments about Corrada's

wrongful discharge claim, and then discuss the one aspect of the

case where we disagree with the district court's rationale.                          We

rely entirely on the trial court's rescript vis-à-vis Corrada's

privacy claims.         And, inasmuch as Corrada's appellate brief

contains no developed argumentation in support of his defamation

claim, we deem that claim abandoned.                 United States v. Zannino,

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

                                        IV

            Corrada     complains       bitterly          that   the   lower     court

impermissibly credited Sea-Land's version of the facts.                             But

Corrada himself neither volunteered an affidavit nor filed any

other materials of evidentiary quality to contradict Sea-Land's

documented       account.         A    party        who     opposes      a    properly

substantiated motion for summary judgment but fails to muster

counter-affidavits or other evidentiary materials does so at his

peril.     Kelly v. United States, 924 F.2d 355, 358 (1st Cir.

1991)    (warning     of    the   dangers      of    giving      one's       litigation

adversary    a   free      hand   in   configuring         the   summary      judgment

record).

            To be sure, Corrada's attorney did file legal memoranda

in the district court suggesting, for example, that Sea-Land's

stated reliance on corporate policy was pretextual and that its


                                        -6-
real   reasons      for    cashiering      Corrada    were   spiteful.       Such

filings, however, are manifestly insufficient to create genuine

issues of material fact (and, thus, to deflect the blade of the

summary judgment ax).         We have held before, and today reaffirm,

that statements contained in a memorandum or lawyer's brief are

insufficient,       for    summary    judgment       purposes,    to    establish

material facts.       See, e.g., Fragoso v. Lopez, 991 F.2d 878, 887

(1st Cir. 1993); Kelly, 924 F.2d at 357.

           By the same token, Corrada does not profit, in the

circumstances of this case, from his filing of a so-called

"Counterstatement of Uncontested Material Facts."                      We explain

briefly.

           The District of Puerto Rico has adopted a local rule

that requires a party who moves for summary judgment to submit,

in   support   of    the    motion,   "a    separate,    short,    and    concise

statement of the material facts as to which the moving party

contends there is no genuine issue to be tried and the basis of

such contention as to each material fact, properly supported by

specific reference to the record."             D.P.R.R. 311.12.         Once Sea-

Land complied with this directive — as it did — the same rule

then obligated Corrada, as the opposing party, to proffer a

comparable statement limning "the material facts as to which it

is contended that there exists a genuine issue to be tried,


                                        -7-
properly supported by specific reference to the record."                    Id.

(emphasis supplied).

              With regard to this particular section of the rule, we

have       recently   reiterated   that      the   nonmovant's   "failure    to

present a statement of disputed facts, embroidered with specific

citations to the record, justifies the court's deeming the facts

presented       in    the   movant's   statement      of   undisputed   facts

admitted."       Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.

2000); accord Morales v. A.C. Orssleff's EFTF, ___ F.3d ___, ___

(1st Cir. 2001) [No. 00-1707, slip op. at 3].              These authorities

undermine Corrada's attempted reliance on his response to Sea-

Land's meticulous Rule 311.12 statement as a basis for this

appeal.      That response was woefully deficient.          Although Corrada

stalwartly refused to admit many of the facts assembled by Sea-

Land, he utterly failed to point to any record references, let

alone any admissible evidence, that might support a contrary

version.2

              That ends this portion of our inquiry.             Bombast and

bluster, wholly detached from verified facts of record, cannot



       2
      In all events, Corrada's counter-statement did not contest
the existence of Sea-Land's "no drinking on the job" policy, the
occurrence of his earlier suspension, or the fact that he
reported to work intoxicated on the day before Sea-Land fired
him.      He   apparently   concedes  that   these   facts   are
incontrovertible.

                                       -8-
serve to blunt the force of a movant's statement of undisputed

facts.        Thus,      the    district     court       acted   appropriately       in

crediting Sea-Land's statement of material facts not in dispute.

                                             V

              Corrada asserts that the district court should have

allowed him more time for pretrial discovery before ruling on

Sea-Land's dispositive motion.                   This assertion comes too late.

              We will not belabor the obvious.               Corrada did not file

a Rule 56(f) motion, nor did he bring to the district court's

attention in any equivalent manner the "denial of discovery"

plaint      that    he    voices     here.        Those    omissions     defeat     his

afterthought claim.             If any principle is firmly established in

this       circuit,      it    is   that,    in    the    absence   of   excusatory

circumstances — and none are apparent here — arguments not

seasonably raised in the district court cannot be raised for the

first      time    on    appeal.      Teamsters       Union,     Local   No.   59    v.

Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992); McCoy v.

Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991).                            That

principle pertains here.3

                                            VI



       3
      In all events, Corrada had ample time within which to
conduct discovery. He started suit on June 16, 1999, and Sea-
Land did not move for summary judgment until nearly a year later
(May 31, 2000).

                                            -9-
         Our last comment requires us to part company with the

lower court.   Among his array of claims, Corrada asserted a

cause of action under 29 P.R. Laws Ann. §§ 185a-185m (Law 80).

That statute provides remediation for employees at will who are

discharged without good cause.

         In this instance, the district court, having foreclosed

Corrada's other initiatives, declined to address his Law 80

claim on jurisdictional grounds.      The court reasoned that it

lacked subject matter jurisdiction because this claim, standing

alone, failed to satisfy the amount in controversy requirement

($75,000) established as a prerequisite to federal diversity

jurisdiction.4 See 28 U.S.C. § 1332(a).

         We review de novo a district court's determination that

it lacks subject matter jurisdiction.    Barrett v. Lombardi, 239

F.3d 23, 30 (1st Cir. 2001).     Despite our admiration for the

district court's adroit handling of the other issues in this




    4Severance pay is the exclusive remedy afforded by Law 80.
See 29 P.R. Laws Ann. § 185a. The statute provides for varying
payments depending on years of service. Since Corrada worked
for Sea-Land for slightly over five years, he would have been
entitled to two months' wages as severance pay under Law 80 had
he prevailed. See id. Corrada's annual salary at the time of
his discharge was $39,529.34.     Thus, his Law 80 claim, if
successful, would have yielded an award substantially below the
amount in controversy required as a precondition to federal
diversity jurisdiction. See 28 U.S.C. § 1332(a).

                               -10-
case, we think that the court erred in concluding that subject

matter jurisdiction was wanting.

             The critical time for determining the existence vel non

of the amount in controversy is the inception of the suit, i.e.,

the time of filing.         See St. Paul Mercury Indem. Co. v. Red Cab

Co., 303 U.S. 283, 289-90 (1938); Coventry Sewage Assocs. v.

Dworkin Realty Co., 71 F.3d 1, 6 (1st Cir. 1995).                         The amount

claimed at that time controls, so long as asserted in good

faith.      St. Paul, 303 U.S. at 288; Mas v. Perry, 489 F.2d 1396,

1400 (5th Cir. 1974).         Thus, a court can dismiss an action for

insufficiency of the amount in controversy only when, from the

face   of    the    complaint,    the     court    can    conclude       to   a   legal

certainty that the plaintiff is not entitled to recover the

threshold amount.        Barrett, 239 F.3d at 30-31.

             At the inception of this suit, the complaint contained

wrongful discharge, invasion of privacy, and defamation claims

(as well as the Law 80 claim).              These causes of action had the

collective     potential     to    reap    a   harvest      well    in    excess     of

$75,000.       No    more   was   exigible        to    satisfy    the    amount     in

controversy requirement.            See id.            Moreover, once diversity

jurisdiction had attached, subsequent events (e.g., the revealed

impotency of Corrada's potentially more munificent claims) could

not work a divestiture.           See St. Paul, 303 U.S. at 289-90.


                                        -11-
            The district court's error, however, was altogether

harmless.    Consequently, it neither necessitates vacation of the

judgment nor affects the outcome on appeal.        No award is due

under Law 80 if an employee is dismissed for "good cause."       29

P.R. Laws Ann. § 185b.5    The law defines "good cause" to include,

inter alia, situations in which an employee is cashiered for

"indulg[ing] in a pattern of improper or disorderly conduct,"

id. § 185b(a), and those in which he or she is discharged for

repeatedly     violating   "reasonable    rules   and   regulations

established for the operation of the [employer's business],

provided a written copy thereof has been opportunely furnished

to the employee."     Id. § 185b(c).     Both of these definitions

apply here.    Thus, based on the uncontradicted facts, the record

in this case leaves no doubt that good cause (i.e., the serial

violations of the "no drinking on the job" policy) existed for

Sea-Land's decision to hand Corrada his walking papers.

            We therefore affirm the judgment as to the Law 80 claim

on this alternate ground.      See Houlton Citizens' Coalition v.



     5
     A minor discrepancy deserves comment. The title of article
185b refers to dismissal for "just cause," whereas the text
predominantly uses the term "good cause." As a general rule,
the language of the statutory text holds sway over the wording
of the title. Penn. Dep't of Corrs. v. Yeskey, 524 U.S. 206,
212 (1998). In this instance, however, the two terms appear to
be used synonymously.       Accordingly, we treat them as
interchangeable.

                                -12-
Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999) (explaining

that the court of appeals may affirm the entry of judgment on

any ground made manifest by the record).

                                VII

            Since the record, carefully scrutinized, confirms that

(1) Sea-Land had an established personnel policy prohibiting

reporting to work in an intoxicated condition, and (2) Corrada,

having once been suspended for violating the policy, again

flouted it, Sea-Land justifiably fired him in response to the

second violation.    That discharge was for good cause; and, for

the reasons stated by the district court, Sea-Land accomplished

it without infringing Corrada's privacy rights or defaming him.

We need go no further.



Affirmed.




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