United States Court of Appeals
For the First Circuit
No. 04-1455
JOSÉ A. HERNÁNDEZ-SANTIAGO,
Plaintiff, Appellant,
v.
ECOLAB, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Torruella, Howard, Circuit Judges,
and Carter,* Senior District Judge.
Javier A. Morales Ramos with whom Juan F. Matos Bonet was on
brief, for appellant.
Luis G. Martínez Lloréns with whom Colón, Colón & Martínez,
P.S.C. was on brief, for appellee.
February 7, 2005
*
Of the District of Maine, sitting by designation.
Per Curiam. Plaintiff-appellant José Hernández-Santiago
appeals from a judgment dismissing his complaint against defendant-
appellee Ecolab, Inc., on the ground that the district court lacked
subject matter jurisdiction. We vacate the judgment and remand for
further proceedings.
Hernández, a citizen of Puerto Rico, filed this diversity
action in federal court against Minnesota-based Ecolab, seeking
damages arising out of injuries that he sustained in a work-related
accident using a cleaning product called Super Trump. Hernández's
complaint alleged that Ecolab violated Puerto Rico's products
liability laws by failing to include appropriate instructions and
warnings with the Super Trump product. After being served with the
complaint, Ecolab answered by denying liability and asserting
several affirmative defenses.
At the Fed. R. Civ. P. 16(b) scheduling conference,
Ecolab's counsel informed the court that it did not believe that it
had manufactured or sold the product to Hernández's employer.
Rather, counsel believed that Ecolab Manufacturing, Inc. --
Ecolab's wholly owned Puerto Rico subsidiary -- had manufactured
and sold the product. At the conclusion of the conference, the
court ordered Ecolab to provide Hernández with information
concerning the entity that had manufactured and sold the product to
his employer.
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Ecolab responded by filing with the court an affidavit
from its general counsel stating that, based on a review of
Ecolab's and Ecolab Manufacturing's records, it appeared that the
product had been manufactured and sold to Hernández's employer by
Ecolab Manufacturing. Construing this filing as a motion to
dismiss for a lack of subject matter jurisdiction, the court issued
Hernández an order to show cause "why [his] case should not be
dismissed for lack of jurisdiction in view of the evidence filed by
[Ecolab] in support of its claim that the product at issue in this
litigation was manufactured, sold and/or delivered to plaintiff's
employer by [Ecolab Manufacturing], [Ecolab's] wholly owned
subsidiary, a Puerto Rico corporation." (Emphasis supplied).
After receiving the show cause order, Hernández sought
both an extension of time to respond and an order requiring Ecolab
to comply with certain discovery requests related to the
manufacturer-identity issue. The court granted the extension and
ordered Ecolab to provide the requested discovery.
Subsequently, Hernández filed a response to the show
cause order and a motion for discovery sanctions. In both
submissions, Hernández complained that Ecolab still had not
provided it with the discovery necessary to ascertain whether
Ecolab Manufacturing, in fact, had manufactured and sold the Super
Trump product to his employer. Hernández also argued that, even if
Ecolab did not manufacture or sell the product, it was nevertheless
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liable under the doctrine of agency by apparent authority because
the product and the included warnings and instructions indicated
that Ecolab was the manufacturer. The court rejected this argument
and dismissed the complaint. See Hernández-Santiago v. Ecolab,
Inc., 303 F. Supp. 2d 51 (D.P.R. 2004). It ruled that Puerto Rico
applies the doctrine of "one's own acts" (instead of the doctrine
of agency by apparent authority) which requires that a plaintiff
seeking to impute liability to a third party demonstrate that the
third party engaged in conduct which created a perception contrary
to reality and that the plaintiff detrimentally relied on the third
party's representation. Id. at 54.1 In the court's view,
Hernández had failed to show detrimental reliance. Hernández
appeals from this ruling.
In issuing the show cause order and ultimately dismissing
the complaint, the district court concluded that the question of
which entity manufactured and sold the Super Trump product to
Hernández's employer implicated its subject matter jurisdiction.
We review this legal conclusion de novo. See Cotter v. Mass. Ass'n
of Minority Law Enforcement Officers, 219 F.3d 31, 34 (1st Cir.
2000).
1
But see Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288,
293 (1st Cir. 1999)(doubting whether principles for imputing
liability to a third party under Puerto Rico law differ from the
traditional agency by apparent authority doctrine).
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In a diversity action where there is no question of
ripeness, mootness, or standing, the existence vel non of subject
matter jurisdiction typically turns on two facts -- diversity of
citizenship and amount in controversy. See Valentin v. Hosp.
Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001); 28 U.S.C. §
1332. Under Fed. R. Civ. P. 12(b)(1), a party may contest the
court's subject matter jurisdiction by challenging the allegations
in the complaint as insufficient on their face or by questioning
the accuracy of those allegations. See Valentin, 254 F.3d at 363.
Where a party challenges the accuracy of the pleaded jurisdictional
facts, the court may conduct a broad inquiry, taking evidence and
making findings of fact. See id. at 363. Thus, if the issue of
the manufacturer's identity presented a jurisdictional question, it
would have been appropriate for the district court to have accepted
evidence (including affidavits) and to have made factual rulings
based on the evidence before it. See id.
Ecolab, however, did not attack the sufficiency or
accuracy of the jurisdictional facts. It did not dispute that the
parties are diverse, that the amount in controversy was satisfied,
or any other fact bearing on the court's power to hear the case.
Instead, Ecolab sought dismissal on the ground that it did not
manufacture or sell the Super Trump product to Hernández's
employer. In other words, it sought a ruling that it was not
liable because it did not commit the act which Hernández claimed
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was tortious. This is a classic merits defense and does not
implicate the court's subject matter jurisdiction. See 5B Wright
& Miller, Federal Practice & Procedure, § 1350 at 106 (3d ed. 2004)
(collecting cases in which the district court erroneously
adjudicated a defense on the merits under Rule 12(b)(1)). Thus,
the court erred in considering Ecolab's motion within the Rule
12(b)(1) framework. See, e.g., Montez v. Dept. of the Navy, 392
F.3d 147, 151 (5th Cir. 2004); see also Valentin, 254 F.3d at 364
("It is pellucid that a trial court's approach to a Rule 12(b)(1)
motion which asserts a factual challenge is quite different from
its approach to a motion for summary judgment.").
Nevertheless, we could still affirm if dismissal of the
complaint would be the obvious result of a remand. See Chiplin
Enters., Inc. v. City of Lebanon, 712 F.2d 1524, 1529 (1st Cir.
1983); cf. Boateng v. InterAmerican Univ., Inc., 210 F.3d 56, 60
(1st Cir. 2000) (finding harmless error even though the district
court did not inform the plaintiff that it was converting a motion
to dismiss into a motion for summary judgment). Because the
district court accepted an affidavit from Ecolab's general counsel
stating that Ecolab did not manufacture or sell the Super Trump
product to Hernández's employer, the court effectively converted
Ecolab's motion to dismiss into one for summary judgment. See,
e.g., Puerto Rican-American Ins. Co. v. Benjamin Shipping Co., 829
F.2d 281, 285 (1st Cir. 1987). We therefore consider whether, on
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the present record, an award of summary judgment in favor of Ecolab
would be appropriate.
For at least three reasons, we are unprepared to so hold.
First, in the motion compel submitted before responding to the show
cause order, in the response to the show cause order, and in the
motion for sanctions filed contemporaneously therewith, Hernández
informed the district court that it needed additional discovery to
respond to Ecolab's evidentiary presentation. The district court
granted Hernández's initial motion to compel discovery but never
ruled on Hernández's subsequent motion for sanctions for
noncompliance therewith. The situation is analogous to one in
which the court awards summary judgment without considering a Fed.
R. Civ. P. 56(f) motion filed by a party opposing the motion for
summary judgment. See Paterson-Leitch v. Mass. Mun. Wholesale
Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988) (describing Rule 56(f)
as an "escape hatch" for a party who genuinely requires additional
discovery to oppose summary judgment).
While we do not know what Ecolab's discovery responses
would have revealed, the documents that Hernández sought certainly
appear relevant to the manufacturer identity question.2 Moreover,
Hernández has at least arguably satisfied most of the Rule 56(f)
2
Hernández requested, inter alia, specific material pertaining
to the Super Trump trademark; the entities that have manufactured
Super Trump; and the marketing, manufacture, and distribution of
Super Trump in Puerto Rico.
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requirements because his counsel filed statements with the court
specifically identifying the needed discovery and explaining its
relevance to ascertaining the manufacturer's identity. See Velez
v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir. 2004) (stating
that to benefit from Rule 56(f) a litigant ordinarily must furnish
the court with an affidavit from counsel explaining the current
inability to adduce sufficient facts to oppose summary judgment,
providing a basis to believe that the facts can be assembled in a
reasonable time, and indicating why the facts are material).3
Thus, there is reason for concern that the court might have abused
its discretion in failing to permit Hernández additional discovery
before ruling on Ecolab's motion. Cf. Resolution Trust Corp. v. N.
Bridge Assocs., 22 F.3d 1198, 1206 (1st Cir. 1994) (vacating
summary judgment ruling because plaintiff was entitled to
additional discovery under Rule 56(f)).
Second, Ecolab's affidavit from its general counsel does
not appear to have complied with the requirements of Fed. R. Civ.
P. 56(e). For an affidavit to constitute evidence in a summary
judgment proceeding, it must be based on personal knowledge and
show that the affiant is competent to testify to the matter stated
3
Hernández's counsel did not comply with the affidavit
requirement. Nevertheless, in appropriate circumstances, we excuse
technical errors in complying with Rule 56(f) where, as here, the
party seeking relief has satisfied the Rule's substantive aspects.
See Vargas-Ruiz v. Golden Arch Dev. Inc., 368 F.3d 1, 3 (1st Cir.
2004).
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in the affidavit. See Fed. R. Civ. P. 56(e); Perez v. Volvo Car
Corp., 247 F.3d 303, 315-16 (1st Cir. 2001). Counsel swore only
that "a review of relevant manufacturing and sales records" of
Ecolab and Ecolab Manufacturing "reveal[ed]" that Ecolab
Manufacturing sold the Super Trump product to Hernández's employer.
He did not attest that he conducted or supervised the review of the
documents or that he had personal knowledge of the results of the
review. We therefore doubt that there is, at present, a sufficient
evidentiary basis for concluding that, in fact, Ecolab did not
manufacture the product sold to Hernández's employer.
Finally, even were we to assume that Ecolab was not the
manufacturer, we have some doubt as to whether Ecolab would be
entitled to summary judgment. The complaint is based on a failure-
to-warn theory of products liability. Hernández submits, without
contrary argument from Ecolab, that a viable failure-to-warn claim
may lie under Puerto Rico law against the author of the
instructions and warnings of a product even if a different entity
manufactured and sold the product.4 This proposition does not
strike us as self-evidently incorrect. And, as set forth above,
4
Ecolab contends that Hernández forfeited the right to make
this argument because Hernández did not present it to the district
court in his response to the show cause order. A review of the
record convinces us, however, that any lapse on Hernández's part
was at least partially attributable to the irregular manner in
which the manufacturer-identity issue arose. We therefore reject
the claim of forfeiture in this instance. See United States v.
Gallant, 306 F.3d 1181, 1187 (1st Cir. 2002).
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there is evidence that Ecolab wrote the instructions and warnings
for the Super Trump product.
Vacated and remanded.
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