Leon v. Municipality of San Juan

United States Court of Appeals
For the First Circuit

No. 01-2408

RAYMOND LEÓN; CARMEN PANTOJAS-MALDONADO;
CONJUGAL PARTNERSHIP, LEON-PANTOJAS;
RAYMANUELLE LEON-PANTOJAS, minor,

Plaintiffs, Appellants,

v.

MUNICIPALITY OF SAN JUAN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch and Howard, Circuit Judges,
and Shadur,* Senior District Judge.

Rick Nemcik-Cruz, for appellant.

Maritza Torres-Rivera, with Adrián Mercado on brief, for
appellee.

February 14, 2003

*
Of the Northern District of Illinois, sitting by designation.
 SHADUR, Senior District Judge. Raymond Leon, Carmen

Pantojas-Maldonado, their marital partnership and their son

Raymanuelle Leon-Pantojas ("Raymanuelle")(collectively

"Plaintiffs") appeal from the district court's grant of summary

judgment in favor of the defendant Municipality of San Juan1

("Municipality" or "San Juan") in this diversity of citizenship

action. Plaintiffs contend (1) that the Municipal Hospital of the

City of San Juan was negligent and in breach of its statutory

duties when it failed to screen Raymanuelle for phenylketonuria

("PKU") as an infant and (2) that all necessary preconditions for

this lawsuit have been met.

After reviewing the parties' submissions on San Juan's

motion for summary judgment under Fed. R. Civ. P. ("Rule") 56, the

district court granted that motion because Plaintiffs had failed to

notify San Juan within 90 days of learning of the damages claimed

as required by Article 15.003 of the Autonomous Municipalities Act

of the Commonwealth of Puerto Rico ("Municipal Notice Statute").

We reverse the district court's grant of summary judgment in favor

of San Juan and remand this case for further proceedings consistent

with this opinion.

1
All other defendants that remained in the case, physicians
who had treated Raymanuelle in Puerto Rico at some point in time,
their spouses and their marital partnerships, were voluntarily
dismissed without prejudice to allow this appeal to go forward.

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 Subject Matter Jurisdiction

Although the parties failed to note the less-than-precise

nature of the pleadings as to the establishment of the required

diversity of citizenship, we of course have the obligation to

consider such subject matter jurisdictional issues sua sponte. We

have done so, and as the brief ensuing discussion reflects, we have

confirmed that jurisdiction exists.

Plaintiffs' Second Amended Complaint ("Complaint")

alleges that they are "residents" of Florida. Because 28 U.S.C.

§1332 ("Section 1332") vests federal courts with jurisdiction over

cases involving "citizens" of different states who meet the amount

in controversy requirement (an element clearly satisfied here),

Plaintiffs' terminology is both imprecise and technically

incorrect. In this Circuit, however, the failure to use the term

"citizen" or "domiciliary" rather than "resident" does not

necessarily preclude diversity jurisdiction (see Cantellops v.

Alvaro-Chapel, 234 F.3d 741, 742-43 (1st Cir. 2000)).

Here the record contains evidence that at the time of

suit Plaintiffs were not only residents of Florida but were also

domiciled there, intending to remain indefinitely as required under

Section 1332. Plaintiffs relocated to Florida in part to secure

better medical treatment for Raymanuelle, who will likely need long

term care. At the time the Complaint was filed, they had lived for

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three years in Florida, where both parents are employed and

Raymanuelle is enrolled in the elementary school system.

Despite the deficient terminology in their pleading,

then, Plaintiffs' residence plainly coincides with their state of

citizenship, so that Section 1332's diversity jurisdiction was

properly invoked. We therefore turn to the merits.

Standard of Review

We review the grant of summary judgment de novo, applying

the same standard as did the district court (Carroll v. Xerox

Corp., 294 F.3d 231, 237 (1st Cir. 2002)). Under Rule 56(c)

summary judgment is appropriate only "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." Familiar Rule 56 principles

impose on San Juan as movant the initial burden of establishing the

lack of a genuine issue of material fact (Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986)). On appellate review we, like the

district court, are required to draw all reasonable inferences in

the light most favorable to nonmovant Plaintiffs (Carroll, 294 F.3d

at 237).

Facts

Raymanuelle was born on August 25, 1988 in the Municipal

Hospital of the City of San Juan ("Hospital"), a facility operated

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by San Juan. Blood samples taken from Raymanuelle were tested for

certain diseases, but it is uncontested that he was not screened

for PKU at that time. Raymanuelle's mother was discharged from the

Hospital on August 26, 1988, and the newborn was discharged the

following day.

Early in Raymanuelle's life his parents noticed problems

with their son's development, and they sought medical treatment for

him from numerous doctors and clinics. In 1996 Plaintiffs moved to

Tampa, Florida, in large part to obtain better medical and

rehabilitative care for their son. Tampa Dr. Terry DeClue first

diagnosed Raymanuelle's condition as classic PKU on July 30, 1998,

and he notified the parents of that diagnosis in an August 5, 1998

letter.

Until that time Raymanuelle's parents had believed that

their son had been properly screened by the hospital at the time of

his birth. But in light of the PKU diagnosis, Dr. DeClue then

began efforts to obtain Raymanuelle's medical records from Puerto

Rico. Based on his review of those records, the Plaintiff parents

first learned that the Hospital had not screened Raymanuelle for

PKU.

According to the Complaint, PKU is a metabolic disease

that results in mental retardation and other neurological problems

when treatment is not initiated within the first few weeks of an

infant's life. On July 2, 1987 Puerto Rico enacted a statute that

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required the creation and adoption of regulations to implement

mandatory genetic screening for all Puerto Rico newborns (24 P.R.

Laws Ann. §§3152-3155). In October 1988, shortly after

Raymanuelle's birth, regulations pursuant to that statute were

approved that required all hospitals in Puerto Rico to screen

newborn infants for PKU.

In their original Complaint filed on August 4, 1999,

Plaintiffs sued the Hospital as well as the physicians who treated

Raymanuelle in Puerto Rico for negligently failing to screen for

and diagnose Raymanuelle's PKU. Plaintiffs allege that because

Raymanuelle's condition went undiagnosed and untreated for years,

he suffered irreversible neurological damage and severe mental

retardation, as a result of which he will require lifelong care.

Notice of the original Complaint was served on San Juan on

August 13, 1999.

San Juan later filed a Rule 56 motion, arguing (1) that

Appellants had failed to notify the Municipality within 90 days of

learning of the damages claimed as required by the Municipal Notice

Statute (21 P.L.R.A. §4703), (2) that the action was time-barred

and (3) that there was no duty to screen Raymanuelle for PKU at the

time of his birth in August 1988. On August 6, 2001 the District

Court granted San Juan's motion on the first ground and dismissed

the action. This appeal followed.

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 Municipal Notice Statute

This action concerns the application of Puerto Rico's

Municipal Notice Statute (21 P.R. Laws Ann. §4703):

Any person who has a claim of any kind against a
municipality for personal or property damages due to the
fault or negligence of the municipality shall so notify
the Mayor, in writing, stating clearly and concisely the
date, place, cause and general nature of the damages
suffered. Said notification shall also specify the amount
of monetary compensation or the kind of relief
appropriate for the damages suffered, the names and
addresses of his/her witnesses, the claimant's address
and, in cases of personal damages, the place where
medical treatment was first received.

* * *

If the injured party is a minor or a ward, the
person exercising patria potestas or the custody of the
minor, or the guardian, as the case may be, shall be
obliged to notify the Mayor of the claim within ninety
(90) days of the date on which he/she learned of the
damages claimed. The above shall not be an obstacle to
the minor or ward's making said notification on their own
initiative within the specified term, if the person
exercising patria potestas, or custody or guardianship
fails to do so.

(b) Jurisdictional requirement.-- No legal
action of any kind shall be initiated against a
municipality for damages due to negligence unless
written notification is made in the form, manner
and terms provided in this subtitle.

Interpreting that statute, the Supreme Court of Puerto Rico has

held, most recently in Mendez Pabon v. Mendez Martinez, 2000 TSPR

119 (2000), that the notice requirement, while not jurisdictional

in nature, is a "condition precedent requiring strict compliance"

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(J.S.T. at 222; see also Passalacqua v. Municipality of San Juan,

116 P.R.R. 756, 766 (1985), quoting Mangual v. Superior Court, 88

P.R.R. 475, 483 (1963)).

But that condition has not been applied inexorably

(Mendez Pabon, J.S.T. at 22). Instead the Supreme Court of Puerto

Rico has "allowed the flexible application" of the Municipal Notice

Statute in light of the purposes and objectives of the statute3

(id.). Lopez v. Puerto Rico Highway Auth., 133 P.R. Dec. 243

(1993) explained that some claimants have been exempted from the

notification requirement "because under the circumstances of each

one of those cases the legislative scheme was devoid of vitality;

because in them the purposes and objectives of the requirement

could not be achieved; because legally, there was no raison d'etre

2
All "J.S.T." references are to pages of the parties' joint
stipulated translations of some of the decisions of the Supreme
Court of Puerto Rico cited in this opinion (see n.4).
3
Mendez Pabon, J.S.T. at 21-22 repeated those purposes and
objectives as explained in Mangual:

1) to provide the political bodies an opportunity to
investigate the facts which give rise to the claim;
2) to discourage unfounded claims;
3) to facilitate a prompt settlement;
4) to permit immediate inspection of the scene of the
accident before conditions change;
5) to discover the names of witnesses and interview them
while their recollections of the events is trustworthy;
6) to notify the municipal authorities of a pending legal
action so that the necessary financial reserves are provided
in the annual budget; and
7) to minimize the amount of damages sustained through
prompt intervention offering medical treatment and the
provision of medical facilities to the injured party.

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for applying the requirement to such circumstances since said

requirement was not established for them" (J.S.T. at 8). But

Lopez, id. outlined the congeries of circumstances that would

mandate strict compliance with the requirement: (1) an extra-

contractual claim for damages (2) based on the municipality's

alleged fault or negligence, (3) initiated by claimant (4) directly

against the municipality (5) "in which the municipality has no

means to know the essential details of the damage based upon which

the claim is filed without some adequate notice by the claimant."4

Where the government entity does have its own means to

know of the damage suffered by a claimant without outside notice,

however, the Puerto Rico Supreme Court has taught that the

statutory notice is unnecessary--essentially that the fifth factor

later identified in Lopez is not present (Melendez Gutierrez v.

Commonwealth of Puerto Rico, 13 P.R. Offic. Trans. 1046 (1983)).

For that reason Melendez, id. at 1049 reversed the lower court's

dismissal of a claim that alleged medical negligence on the part of

a Commonwealth hospital. That dismissal had been predicated on

Plaintiffs' non-compliance with Article 2A of the Law of Claims and

Suits against the State ("Commonwealth Notice Statute," 32 P.R.

4
Because the Supreme Court of Puerto Rico has yet to release
an official translation of Lopez, the text here quotes the version
provided by the parties on appeal as a stipulated translation in
compliance with our Circuit Rule 30(d). Plaintiffs argue that the
district court relied on an erroneous translation of the fifth
element in Lopez. As discussed later in the text, however, the
result we reach hereafter does not require us to confront that
issue.

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Laws Ann. §3077a), a provision directly analogous to the Municipal

Notice Statute. Because it found that the operative events had

been thoroughly documented in the records kept by the hospital,

Melendez, id. at 1049 held:

[I]n cases such as the one at bar -- where the
risk of the objective evidence's disappearance
is minimal, where there is effective proof of
the identity of the witnesses, and where the
State may easily investigate and corroborate
the facts alleged in the complaint filed --the
cited § 3077a is not strictly applicable
inasmuch as the objective sought by the
application therefor has no raison d'être.

Although Plaintiffs have understandably stressed

Melendez both in their district court opposition to San Juan's Rule

56 motion and then again before us, San Juan has simply ignored

that decision in all of its court submissions. Instead San Juan

has approached this litigation as though the Municipal Notice

Statute must be viewed as a no-exception requirement.

That, however, is a basic misconception. To be sure,

Melendez dealt with the application of the Commonwealth Notice

Statute rather than the Municipal Notice Statute. But because of

the common source, the nearly identical language and the

intertwined history of the two statutes, the Supreme Court of

Puerto Rico has consistently interpreted them in tandem (see, e.g.,

Passalacqua, 116 P.R.R. at 763-64). Indeed, the recent Mendez

Pabon decision expressly cited Melendez and specifically looked to

judicial interpretations of the Commonwealth Notice Statute to shed

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light on the application of the notification requirement to a suit

against the municipality (J.S.T. at 22).

Thus San Juan's omission of cases interpreting the

Commonwealth Notice Statute from its analysis reflects precisely

the "erroneous impression" of Puerto Rican law adverted to in the

concurring opinion in Lopez, J.S.T. at 15 (Rebollo Lopez, J.,

concurring). Instead cases such as Mendez Pabon make it clear that

courts are to apply the Melendez-created judicial exception to the

Commonwealth Notice Statute with equal force to the Municipal

Notice Statute.

Just as was true in Melendez, newborn Raymanuelle's

medical records--which have been in the Hospital's control since

his birth and are still present there--thoroughly document the key

facts at issue and identify the percipient witnesses to his

treatment by the Hospital. And that being so, the question becomes

whether that knowledge on the Hospital's part--memorialized as it

is in incontestable documents that have been retained over the

intervening years--satisfies the fifth Lopez-identified element

needed to allow the exception to the notice statute. Melendez

teaches an affirmative answer to that question, and we agree.

As indicated in n.4, Plaintiffs seek to add another

string to their bow by urging that the district court, relying on

an erroneous translation of the fifth element, wrongly asked

whether the Hospital (and hence San Juan) had no way to know the

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essential details of Plaintiffs' claim for damages absent notice,

rather than whether the municipality had no other way to know the

essential details of the harm for which Plaintiffs have demanded

compensation. They point to the fact that the Supreme Court of

Puerto Rico has not made available an official translation of

Lopez. But we need not enter the fray on that score, for Melendez

compels our conclusion here under the stipulated translation of

Lopez that has been provided by the parties.

In sum, the Hospital's records themselves unquestionably

gave San Juan knowledge of the damage to Raymanuelle based on which

Plaintiffs' claim is filed without any need for further

notification from Plaintiffs--those retained records definitively

show the Hospital's failure to test Raymanuelle for PKU. And under

Melendez such absence of any need for notification took Plaintiffs'

claim out of the reach of the Municipal Notice Statute. Because

Melendez controls here, we reverse the result reached by the

district court.

Equal Protection Challenge

Because we have found the district court's ruling on

applicability of the Municipal Notice Statute to be erroneous, we

also need not consider Plaintiffs' alternative contention that the

legislation violates the Equal Protection Clause. But that issue

is not properly before us in any event, for Plaintiffs failed to

raise it in the court below.

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 Other Rule 56 Issues

As stated earlier in this opinion, San Juan's Rule 56

motion also argued that Plaintiffs' claim is time-barred and that

the Hospital had no duty to test newborn Raymanuelle for PKU.

Although the district court reached neither of those contentions

because it dispatched the case on the ground discussed at length

here, the principle that an affirmance on appeal can be based on

any available ground compels us to spend a few moments on those

matters as well.

As to the limitations issue, San Juan contends this

action was untimely because it was not brought until August 4,

1999, more than a year after Dr. De Clue diagnosed Raymanuelle's

PKU condition on July 30, 1998. But the documentary record of Dr.

DeClue's notice of that diagnosis to Raymanuelle's parents is his

August 5, 1998 letter to them, dated less than a year before suit

was filed.5 Unless San Juan were somehow able to establish on

remand that the doctor advised the parents of the diagnosis before

he wrote them, then, its limitations argument fails.

As for the duty of care issue, the absence of any

resolution of that facet of Plaintiffs' negligence claim by the

5
Before us San Juan asserts, without any support in the
record, that Plaintiffs themselves learned of Raymanuelle's PKU
diagnosis on July 30, 1998 (when the doctor first arrived at that
diagnosis) rather than upon their receiving the doctor's August 5
letter.

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district court makes it one of the matters to be resolved on

remand. We therefore express no view on the subject.

Conclusion

We REVERSE the order of the district court granting San

Juan's Rule 56 motion for summary judgment. We REMAND the case to

the district court for further proceedings in light of this

opinion.

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