United States Court of Appeals
For the First Circuit
No. 03-2225
ARMANDO E. VARGAS-RUIZ,
Plaintiff, Appellant,
v.
GOLDEN ARCH DEVELOPMENT, INC.,
(MCDONALD'S SYSTEM DE PUERTO RICO, INC.),
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Selya, Circuit Judge,
Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.
Jaime-Albizu Lamboy-Riley, with whom Díaz, Lamboy & Asociados
was on brief, for appellant.
Myriam Y. Fernández-González, with whom Carlos A. García Pérez
and Goldman, Antonetti & Cordova, PSC were on brief, for appellee.
May 10, 2004
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
SELYA, Circuit Judge. In this diversity case, a customer
who sustained injuries when he ordered his milk cold but received
it hot, brought a civil action against the restauranteur for
negligence under Article 1802 of the Puerto Rico Civil Code, 31
P.R. Laws Ann. § 5141. In due course, the defendant moved to
dismiss on the ground that the plaintiff had sued too late. The
district court converted the motion to one for summary judgment,
see Fed. R. Civ. P. 12(b), wrote a thoughtful rescript explaining
why the limitations period had expired, and granted judgment
accordingly. Vargas-Ruiz v. Golden Arch Dev., Inc., 283 F. Supp.
2d 450 (D.P.R. 2003). The plaintiff now appeals.
We often have stated, and today reaffirm, that when a
trial court accurately sizes up a case, applies the law faultlessly
to the discerned facts, decides the matter, and articulates a
convincing rationale for the decision, there is no need for a
reviewing court to wax longiloquent. See, e.g., Cruz-Ramos v. P.R.
Sun Oil Co., 202 F.3d 381, 383 (1st Cir. 2000); Lawton v. State
Mut. Life Assur. Co., 101 F.3d 218, 220 (1st Cir. 1996); Ayala v.
Union de Tronquistas, 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). This
case fits neatly within that integument. We therefore affirm the
judgment below for substantially the reasons set forth in the
district court's finely honed opinion.
-2-
There is one aspect of the case, however, that requires
additional comment. In this venue, the plaintiff presses an
argument not squarely presented below (and, hence, not addressed by
the district court). In order to put this nascent point in
context, we briefly rehearse both the legal landscape and the
district court's opinion.
The parties agree that Puerto Rico law governs in this
diversity tort action. See, e.g., Daigle v. Me. Med. Ctr., Inc.,
14 F.3d 684, 689 (1st Cir. 1994); Rolon-Alvarado v. Municipality of
San Juan, 1 F.3d 74, 77 (1st Cir. 1993). Consequently, the
plaintiff's claim is subject to a one-year limitations period. See
31 P.R. Laws Ann. § 5298(2). Because the "hot milk" incident
occurred on February 13, 2001, the limitations period began to run
on that date. Rodriguez-Suris v. Montesinos, 123 F.3d 10, 13 (1st
Cir. 1997). The plaintiff did not commence his action until March
27, 2002. Thus, as the district court explained, "unless the
prescription of the cause of action was interrupted, the present
tort action is time-barred." Vargas-Ruiz, 283 F. Supp. 2d at 456.
Under Puerto Rico law, interruption of the one-year
limitations period in a personal injury case can occur, inter alia,
"by extrajudicial claim of the creditor [or] by any act of
acknowledgment of the debt by the debtor." 31 P.R. Laws Ann. §
5303. Once such an interruption occurs, it restarts the
limitations clock as of the date of the extrajudicial claim or
-3-
acknowledgment of debt. Tokyo Marine & Fire Ins. Co. v. Perez &
Cia. de P.R., Inc., 142 F.3d 1, 4 (1st Cir. 1998).
The plaintiff asserted below that a claim letter sent to
the defendant's adjuster occasioned such an interruption. Although
he did not proffer the letter itself, the district court noted that
the adjuster had responded on March 6 and therefore concluded that
the plaintiff had sent such a missive on or before that date.
Vargas-Ruiz, 283 F. Supp. 2d at 456. Assuming this to be an
extrajudicial claim capable of tolling the limitations period, a
new one-year period began to run at that time. See id. That did
not cure the temporal problem, however, because this new period
would have expired no later than March 7, 2002 — yet the plaintiff
did not commence his action until nearly three weeks after that
date.
In the district court, the plaintiff attempted to skirt
the temporal hazard by contending that the adjuster's turn-down
letter (dated January 11, 2002) constituted an acknowledgment of
debt and that this fresh interruption marked the beginning of yet
another one-year prescriptive period. The trial court rejected
that contention, id. at 457, and the plaintiff makes only a half-
hearted effort to convince us that the court erred in so ruling.
We do not discuss that contention, but, rather, endorse the
district court's rejection of it.
-4-
On appeal, the plaintiff recasts his argument and insists
that he did not have access to the adjuster's file; that if such
access had been afforded, he might have discovered more weighty
evidence of a fresh interruption; and that, therefore, the lower
court erred in rushing to an adverse judgment.
Because this argument was not squarely presented below,
the plaintiff has forfeited the right to urge it here. Teamsters
Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st
Cir. 1992); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987).
We analyze it, however, to ensure that no plain error exists. We
discern none.
Where, as in this case, a party professes an inability to
respond to a summary judgment motion because of incomplete
discovery, his recourse is by way of Fed. R. Civ. P. 56(f).1 That
rule "describes a method of buying time for a party who, when
confronted by a summary judgment motion, can demonstrate an
1
The rule reads:
Should it appear from the affidavits of a
party opposing the motion [for summary
judgment] that the party cannot for reasons
stated present by affidavit facts essential to
justify the party's opposition, the court may
refuse the application for judgment or may
order a continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such other
order as is just.
Fed. R. Civ. P. 56(f).
-5-
authentic need for, and an entitlement to, an additional interval
in which to marshal facts essential to mount an opposition."
Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198,
1203 (1st Cir. 1994).
Here, however, the plaintiff did not invoke Rule 56(f)
before the district court.2 By the same token, he filed no motion
to defer the decision, prepared no affidavit delineating either the
etiology or the dimensions of his inability to proceed, and offered
the district court no coherent explanation of why he needed extra
time or what fruits he anticipated that extra time might yield.
While we do not insist on slavish compliance with the
imperatives of Rule 56(f) in order to obtain its benefits, see
Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d
985, 988 (1st Cir. 1988); Taylor v. Gallagher, 737 F.2d 134, 137
2
At oral argument in this court, the plaintiff attempted to
explain his failure by insinuating that he was taken unawares when
the district court converted the defendant's motion to dismiss to
a motion for summary judgment. See Fed. R. Civ. P. 12(b)
(providing that if, on a Rule 12(b)(6) motion, "matters outside the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of
as provided in Rule 56"). We find that suggestion disingenuous.
After all, it was the plaintiff who, in opposing the defendant's
dispositive motion, made a documentary proffer, consisting, inter
alia, of the turn-down letter and other miscellaneous
correspondence between the plaintiff's lawyer and the adjuster. In
taking that tack, the plaintiff invited the conversion — and he
cannot credibly claim to have been surprised when the court
accepted his invitation. Gurary v. Winehouse, 190 F.3d 37, 43 (2d
Cir. 1999); Collier v. City of Chicopee, 158 F.3d 601, 603 (1st
Cir. 1998).
-6-
(1st Cir. 1984), we do insist upon substantial compliance. As we
explained in Paterson-Leitch:
[A party] departs from the plain language of
[Rule 56(f)] at his peril. When a departure
occurs, the alternative proffer must simulate
the rule in important ways. It should be made
in written form and in a timely manner . . . .
The statement must be made, if not by
affidavit, then in some authoritative manner —
say, by the party under penalty of perjury or
by written representations of counsel subject
to the strictures of Fed. R. Civ. P. 11 — and
filed with the court. Then, too, it should
articulate some plausible basis for the
party's belief that specified "discoverable"
material facts likely exist which have not yet
come in from the cold. There must also be
shown some realistic prospect that the facts
can be obtained within a reasonable
(additional) time, and will, if obtained,
suffice to engender an issue both genuine and
material. Last, the litigant must demonstrate
good cause for failure to have conducted the
discovery earlier.
840 F.2d at 988.
The plaintiff argues, in effect, that he substantially
complied with the requirements of Rule 56(f). That argument rings
hollow. He mentioned the absence of the adjuster's file to the
district court only in the most oblique terms and his proffers
failed in several important ways to simulate what Rule 56(f)
requires. We first describe those references and then describe
their shortcomings.
The defendant's dispositive motion was filed on December
30, 2002. In an opposition to it, filed on March 18, 2003, the
plaintiff stated that he had written "a letter requesting the
-7-
[adjuster's] file" and had made follow-up telephone calls "without
any results." If obtained, he predicted that the file would show
"that plaintiff made a timely claim to defendant." To be sure, the
plaintiff at one point suggested that, in his view, "the instant
case should not be dismissed until [the adjuster's] file . . . is
produced." But he then undercut this observation by asking the
court to deny the motion outright instead of delaying its
adjudication. In all events, the reference quoted above was buried
in the body of a memorandum, devoted mostly to other matters. Its
peripheral nature is emphasized by the fact that the defendant's
rebuttal memorandum, filed on April 25, 2003, did not even mention
the adjuster's file.
On May 1, 2003, the plaintiff served a sur-reply. In a
footnote, he mentioned that, on the same date, he had made a
request for production of the adjuster's file. Once again,
however, he did not ask the court to delay adjudication of the
dispositive motion. To the contrary, he continued to press for its
denial.
The plaintiff's proffers to the district court bear no
real resemblance to what Rule 56(f) requires. To begin, the
plaintiff's first allusion to the adjuster's file was not made
promptly upon service of the defendant's dispositive motion, but,
rather, almost three months later. A party seeking relief under
-8-
Rule 56(f) must act celeritously to inform the trial court of his
predicament. See N. Bridge Assocs., 22 F.3d at 1203-05.
For another thing, a petitioning party must offer the
trial court more than optimistic surmise. He must give the court
reason to believe that undiscovered facts exist and that those
facts, if obtained, would help defeat the pending motion. See id.
at 1203, 1206-08. The plaintiff did neither of these things. In
his opposition to the dispositive motion, he indicated only that
the adjuster's file contained evidence that he had "made a timely
claim to defendant." Fairly read, this allusion seems to emphasize
the initial claim letter; and the plaintiff's proffers, taken as a
whole, contained nothing sufficient to inculcate a plausible belief
that the adjuster's file held something, apart from the claim
letter, that might serve to restart the limitations clock. As to
the claim letter itself, the district court gave the appellant its
full benefit and, thus, the formality of producing the physical
letter could not conceivably have affected the resolution of the
matter.
Last — but far from least — a party seeking to postpone
the adjudication of a summary judgment motion on the ground of
incomplete discovery must explain why, in the exercise of due
diligence, he has been unable to obtain the necessary information.
See N. Bridge Assocs., 22 F.3d at 1203, 1205-06. The plaintiff
shirked this obligation with respect to the adjuster's file. The
-9-
timeliness issue had been in the case since the defendant first
answered the complaint, asserting a statute of limitations defense.
The action had been pending for nine months when the defendant made
its dispositive motion and for over fifteen months when the lower
court ruled on that motion. The plaintiff had available to him a
full complement of discovery devices. Yet he apparently chose not
to use these devices in a timely fashion and he made no effort to
enlighten the district court as to why he had not undertaken the
necessary discovery with reasonable dispatch. This lassitude is
fatal to his argument on appeal. See Herbert v. Wicklund, 744 F.2d
218, 222 (1st Cir. 1984) ("Although a district court should
generally apply Rule 56(f) liberally, the court need not employ the
rule to spare litigants from their own lack of diligence.").
To sum up, when the defendant sought brevis disposition,
the plaintiff flouted both the letter and the spirit of Rule 56(f).
To make a bad situation worse, he asked the district court to rule
then and there on the dispositive motion. The court followed his
urging and decided the pending motion on the record before it. The
plaintiff's disappointment with that ruling is understandable, but
there is no principled way that we can turn back the clock and give
him a further opportunity to reconfigure the record.
We need go no further. Having scoured the briefs,
entertained oral argument, and carefully canvassed the record, we,
like the district court, find no significantly probative evidence
-10-
sufficient to create a genuine dispute as to any material fact.
The defendant was, as the district court ruled, entitled to
judgment as a matter of law.
Affirmed.
-11-