United States Court of Appeals
For the First Circuit
No. 05-1255
JORGE PÉREZ-CORDERO,
Plaintiff, Appellant,
v.
WAL-MART PUERTO RICO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Toruella and Lipez, Circuit Judges,
Fusté,* District Judge.
Wilma E. Reverón Collazo, for the appellant.
Kenneth C. Suria, with whom William Estrella Law Offices, PSC
was on brief, for the appellees.
March 13, 2006
____________
*
Of the District of Puerto Rico, sitting by designation.
LIPEZ, Circuit Judge. Jorge Pérez-Cordero sued his
employer, Wal-Mart Puerto Rico, Inc., and his supervisors at that
company, alleging that they had subjected him to gender
discrimination in the form of sexual harassment and then retaliated
against him for complaining. The district court entered summary
judgment for the defendants, on a motion it deemed unopposed.
Pérez-Cordero argues on appeal that the district court should not
have disregarded his opposition to summary judgment. After careful
consideration of this case's procedural history, we agree. We
vacate the judgment for Wal-Mart and remand so that the district
court can evaluate the motion for summary judgment in light of
Pérez-Cordero's opposition.
I.
Pérez-Cordero filed suit against Wal-Mart in October
2001. The litigation proceeded without incident for about a year,
as both parties accumulated materials in discovery. The events
pertinent to our decision then ensued.
A. Events in September - December 2002
At a scheduling conference in September 2002, the
district court set a December 2nd deadline for summary judgment
motions. On November 27th, Wal-Mart requested an extension until
December 19th to file its summary judgment motion. While Wal-
Mart's motion for an extension was pending, Pérez-Cordero's counsel
filed an "informative motion" with the court, noting that she had
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scheduled a trip to Spain around the court's previous scheduling
order and had reservations to be out of the country from December
24 to January 10, 2003. Counsel requested that the court "take
this schedule in consideration when scheduling any conference or
issuing any order" in response to Wal-Mart's motion for an
extension. The judge granted Wal-Mart an extension on December
5th, noting "Opp. will be due by 1/13/03 and reply by 1/24/03 and
sur reply by 2/3/03," and that no further extensions would be
granted. The following day, counsel formally moved to extend the
deadline for the summary judgment opposition until February 3rd,
explaining again that Wal-Mart's delay in moving for summary
judgment had created a conflict with her vacation, which she had
scheduled around the district court's previous deadline, and a jury
trial in another federal case that she had scheduled for January
2003. Counsel had filed all previous motions in a timely fashion.
The district court neither granted nor denied counsel's
motion. Instead, the court issued an order stating that it would
hold counsel's motion for an extension "in abeyance" until it
received Wal-Mart's motion for summary judgment. Wal-Mart filed
its summary judgment motion just before the December 19th deadline.
Counsel says that she received her copy of the motion on Christmas
Eve. She left for Spain the following day.
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B. January and February 2003
Shortly after counsel returned to the country, she filed
one dual-purpose motion on January 15th, requesting that the court
postpone the pre-trial conference and "reiterat[ing]" her request
for a separate extension of time to oppose summary judgment. On
January 27th, the district court responded to the motion with the
following docket entry: "Granted. The Clerk of the Court shall
reschedule the pretrial conference . . .." Although the order did
not refer specifically to the motion to extend time for the summary
judgment opposition, counsel interpreted the order as a
confirmation that her request for extra time to file the opposition
had been granted.
Counsel proceeded to draft an opposition. While checking
the electronic docket on Saturday, February 1st, in preparation for
filing her motion, counsel found that the district court had
granted Wal-Mart's summary judgment motion two days earlier,
treating it as unopposed. The following Monday, counsel filed
Pérez-Cordero's opposition to summary judgment and a motion to set
aside the order the district court had issued on January 30th.
C. After February 2003
There are no pertinent docket entries until October 2003,
when the court appears to have granted counsel's December 2002
motion to postpone the deadline for filing the opposition to
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summary judgment.1 Half a year later, on March 1, 2004, the
district court denied Pérez-Cordero's motion to vacate the January
30, 2003 opinion and order. Through counsel, Pérez-Cordero then
asked the district court to alter its judgment. The district court
denied that motion as well, ruling in January 2005 that Pérez-
Cordero's opposition to summary judgment had been untimely, and
that counsel should have heeded the court's December 2002
admonition that no further extensions would be granted. Having
exhausted his options in the district court, Pérez-Cordero brought
this appeal.
II.
The district court has significant discretionary
authority to set and enforce filing deadlines in accordance with
the Federal Rules of Civil Procedure, even when those deadlines are
difficult for lawyers to meet. See Macaulay v. Anas, 321 F.3d 45,
49 (1st Cir. 2003) ("Courts simply cannot afford to let lawyers'
schedules dominate the management of their dockets."); McIntosh v.
1
The docket suggests some confusion about the district court's
intentions in the October 2003 order. The docket sheet states that
the "motion to Extend Time until 2/3/03 to opp mot for summ jdgmt"
had been granted. The original order states that the motion given
docket number 33 -- which was Pérez-Cordero's motion to extend the
deadline for his summary judgment opposition, had been granted, but
refers to a motion "requesting time to file other translated
exhibits." Wal-Mart argues that the district court never intended
to grant Pérez-Cordero an extension. That may be so. But the
court's order, combined with the absence of any previous denial of
Pérez-Cordero's request for an extension, reasonably indicated to
counsel that the extension had been granted.
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Antonino, 71 F.3d 29, 38 (1st Cir. 1995) ("Litigants cannot expect
that courts will dance to their every tune, granting extensions on
demand to suit lawyers' schedules."); Mendez v. Banco Popular de
Puerto Rico, 900 F.2d 4, 7 (1st Cir. 1990) ("[A] district judge
must often be firm in managing crowded dockets and demanding
adherence to announced deadlines.").
When a non-moving party fails to file a timely opposition
to an adversary's motion for summary judgment, the court may
consider the summary judgment motion unopposed, and take as
uncontested all evidence presented with that motion. NEPSK, Inc.
v. Houlton, 283 F.3d 1, 7-8 (1st Cir. 2002). While an unopposed
summary judgment motion still must be scrutinized in accordance
with Fed. R. Civ. P. 56, id.,2 a district court's decision to treat
a summary judgment motion as unopposed is serious business. In
most cases, a party's failure to oppose summary judgment is fatal
to its case. Normally, we will not disturb a district court's
decision to consider a summary judgment motion unopposed because a
party has missed the deadline for filing an opposition.
2
In his opening brief before this court, Pérez-Cordero complained
that the district court had dismissed his case as a sanction for
his failure to file a timely opposition. The court did no such
thing. It granted summary judgment on the record as of January
30th, 2002 -- before Pérez-Cordero had filed an opposition. The
district court's January 2002 order reveals that the court
evaluated the evidence before it using the proper Rule 56 standard,
and that Pérez-Cordero's case was dismissed as a result of this
analysis, not as a sanction for late filing.
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In the rare cases where we have found an abuse of
discretion in a district court's refusal to grant an extension of
time, our analysis has been highly fact-specific. See United
States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995) ("For the
purpose of determining whether a denial of a continuance
constitutes an abuse of discretion, each case is sui generis.").
We have granted relief when the appealing litigant was reasonably
surprised by the deadline or the action of the court, or the events
leading to the contested decision were unfair. See United States
v. Fraya, 145 F.3d 1, 4 (1st Cir. 1998) (reversing grant of summary
judgment where non-moving party's delay was attributable to "an
ambiguity in the Local Rules" and a snafu in the district court
clerk's office); United States v. Roberts, 978 F.2d 17, 20-21 (1st
Cir. 1992) (overturning grant of motion to suppress when
government's failure to respond was due to "interlocking rules .
. . freighted with ambiguity"); see also Douglas v. York County,
360 F.3d 286, 290-91 (1st Cir. 2004) (holding that it was "simply
unfair -- and an abuse of discretion" for district court to deny
non-moving party's motion for reconsideration of summary judgment
after the court had "switched the basic issue without giving the
parties adequate warning"); Resolution Trust Corp. v. North Bridge
Assoc., Inc., 22 F.3d 1198, 1200, 1209 (1st Cir. 1994) (reversing
grant of summary judgment when non-moving party was "laid low" by
the moving party's "rabbit punch," and "the district court should
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not have countenanced, much less rewarded, such dubious conduct");
Mendez, 900 F.2d at 7 (declining to overrule district court's
refusal to extend time in part because "the lawyer had no valid
basis to claim he was surprised" by the filing deadline).
Here, for reasons we will explain, there was unfair
surprise in the district court's refusal to consider Pérez-
Cordero's opposition to Wal-Mart's summary judgment motion. But we
offer two preliminary cautions.
First, while Pérez-Cordero's request for an extension was
a reasonable one, the district court was not required to grant it.
As we noted above, we long have recognized that district courts
must be able to organize their dockets, set deadlines, and
sometimes inconvenience lawyers. There are times when even a short
extension would throw the district court's schedule into disarray
or inconvenience another party. In such cases, a district court
acts well within its discretion in refusing to allow an extension.
Second, counsel played a dangerous game in assuming, even
reasonably, that the extension she requested had been granted
before she went on vacation. In the absence of clarity in a
written response to their requests, lawyers should not assume that
they have been granted filing extensions. Instead, they should
seek further clarification from the court. While counsel did seek
such clarification in her January 15th motion after her return (and
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after the original January 13th deadline had passed), she should
have sought similar clarification in December.
But we vacate the judgment here even though the district
court was not required to grant the extension and even though
counsel should have confirmed in December her reasonable assumption
that the extension had been granted. We do so because at every
stage -- before counsel departed on vacation, after she returned,
and even after the initial summary judgment order was entered --
the district court provided a basis for counsel's reasonable
expectation that her request for extra time had been or soon would
be granted.
A. December 2002
The district court later wrote, in denying Pérez-
Cordero's motion to alter the judgment in January 2005, that
counsel should have understood from the wording of the December
5th, 2002, order granting an extension to Wal-Mart -- which
included the proviso that no further extensions would be granted --
that her motion would be denied. We do not think that the sequence
of events that we sketched above could have imparted that message.
On November 27th, Wal-Mart asked the court to extend its deadline
for filing a summary judgment motion from December 2nd to December
19th. While that request was pending, counsel filed the
informative motion, telling the court that Wal-Mart's proposal
would interfere with her vacation plans unless the court also
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extended the period for responding to the summary judgment motion
beyond the normal ten days. On December 5th, three days after the
original deadline had passed, the court granted Wal-Mart's motion
and set a new schedule that did not seem to take into account
counsel's vacation schedule. To seek clarification, counsel filed
a second motion, this one formally requesting that she be allowed
a short period after her return from vacation to respond to Wal-
Mart's motion. In response, the court made clear that its December
5th order did not foreclose an extension for the opposition to
summary judgment. Instead, the district court took the unusual
step of holding counsel's motion for an extension "in abeyance"
until Wal-Mart's summary judgment motion arrived.
The district court later explained that the motion was
"premature" and that it "had no option but to hold in abeyance the
request until and if defendants filed [their summary judgment
motion]." We are not sure of the district court's meaning.
Perhaps the court held counsel's motion "in abeyance" because it
did not want to commit to a February 3rd deadline for the filing of
an opposition to the summary judgment motion until it was sure that
Wal-Mart had met its own December 19th deadline. Perhaps the court
mistakenly thought that it did not have the authority to act on the
request for an extension of time to respond to the summary judgment
motion until the motion itself had been filed. But nothing in the
rules prevented the judge from denying -- or granting -- the motion
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for an extension before the summary judgment motion arrived. See
generally Fed. R. Civ. P. 16. Most importantly, we do not see how
counsel could have been expected to understand that the court's "in
abeyance" ruling was tantamount to a ruling that the "no further
extensions" language in the December 5th order barred her request.
To the contrary, with Wal-Mart having filed its summary judgment
motion by the December 19th deadline (thereby removing that
contingency), counsel could have reasonably assumed that her
request for an extension had been or soon would be granted.
B. January 2003
Upon counsel's return from vacation, this expectation was
reasonably confirmed when the district court once again did not
reject her motion for an extension. Instead, it appeared to
confirm that it had granted an extension. Here, the critical
moment was when the district court responded to counsel's dual
purpose January 15th motion -- to extend the pretrial conference
and to confirm that extra time had been granted to oppose summary
judgment -- by entering in the docket on January 27th a notation
that the motion had been "granted." The additional language in the
court's order -- "The Clerk of the Court shall reschedule the
pretrial conference" -- does not affect the reasonableness of
counsel's reading of the district court's order as an explicit
notice that her request for more time to file the opposition to
summary judgment had been allowed. Only the rescheduling of the
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conference would require the attention of the clerk. The clerk
would not have to reschedule an extended deadline for the filing of
an opposition to summary judgment. Nor does it matter that the
January 27th order came after the initial deadline for opposing the
summary judgment motion had passed. In its disposition of Wal-
Mart's motion for an extension, the district court had already
granted an extension after the preexisting deadline for a filing
had passed.3 Therefore, we think counsel was unfairly surprised by
the district court's January 30th order granting summary judgment
to Wal-Mart. She reasonably had believed that she had until
February 3rd to respond to the summary judgment motion.
3
In the same January 2005 order where it explained its decision to
hold counsel's request for an extension "in abeyance," the district
court explained its January 27, 2003 order granting the dual
purpose motion as follows:
[T]he Court granted plaintiff's request to continue
the pretrial conference [] given that he claimed he
could not prepare both the opposition and the pre-
trial memo at the same time. Being rid of the
burden to prepare the pre-trial memo, plaintiff was
free to finish and file his opposition although
after the January 13 deadline but still timely
enough for the Court to consider it.
The district court granted Pérez-Cordero's motion on January 27th,
three days before it entered a seventeen-page opinion and order
granting summary judgment to Wal-Mart. We do not see how the court
could have assumed that counsel would understand from its January
27th order that her motion had been "granted" but that she had
something less than three more days to oppose summary judgement
instead of the week she had requested. Nor do we understand why
there was any need, on January 27th, for the court to free up
counsel's schedule to write an opposition, unless the deadline for
that opposition had been extended per counsel's request.
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C. February 2003 and beyond
The district court then granted Pérez-Cordero's motion
for an extension, belatedly, in October 2003. A half-year later,
without providing an explanation for the October 2003 order, the
district court denied the motion to reconsider. Again, the
district court had created and then deflated an expectation that
Pérez-Cordero's opposition would be considered.
III.
We do not minimize the heavy caseload of the district
court in Puerto Rico. In that demanding environment, it is
inevitable that mistakes occasionally will occur. Our recognition
of those rare mistakes, which is our function, does not diminish
our respect for the hard work of the district court, or our
understanding that in the vast majority of cases the district court
manages its heavy docket fairly and justly. In the end, however,
for all of the reasons stated, counsel for Pérez-Cordero was
unfairly surprised by the district court's refusal to consider the
opposition to summary judgment that she had prepared for her
client. Unopposed, the motion for summary judgment was virtually
assured of success. The summary judgment motion should have been
evaluated in light of Pérez-Cordero's opposition. We vacate the
judgment of the district court and remand for proper consideration
of the summary judgment motion.
So ordered. Costs to appellant.
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