United States Court of Appeals
For the First Circuit
No. 05-1839
ANTONIO ADORNO, ET AL.,
Plaintiffs, Appellants,
v.
CROWLEY TOWING AND TRANSPORTATION CO. and SEAFARERS
INTERNATIONAL UNION OF NORTH AMERICA,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
J.H. Zidell, with whom J.H. Zidell, P.A. was on brief, for
appellants.
Raquel M. Dulzaides, with whom Mayra M. González Reyes and
Jimenez Graffam & Lausell were on brief, for appellee Crowley
Towing and Transportation Company.
Ellen Silver, with whom Mary T. Sullivan, and Segal, Roitman
& Coleman were on brief, for appellee Seafarers International
Union of North America.
April 4, 2006
HOWARD, Circuit Judge. Plaintiffs are former employees
of Crowley Towing and Transportation Company ("Crowley") who
brought a "hybrid" Section 301/unfair representation action under
the Labor Management Relations Act, 29 U.S.C. § 185, against
defendants Crowley and Seafarers International Union of North
America ("Union").1 Plaintiffs claimed that the layoff methodology
negotiated for the shutdown of Crowley's Puerto Rico operation
violated the seniority provisions of their collective bargaining
agreement (CBA). On appeal, plaintiffs challenge the district
court's denials of their motions to amend their complaint and for
additional discovery to respond to defendants' successful motions
for summary judgment.2
Crowley notified the Union in December 1996 of its
intention to close permanently its operations in Puerto Rico. The
Union and Crowley met to negotiate various aspects of the shutdown,
including which employees would be retained for residual work after
the shutdown and various benefits issues. Some employees,
1
Although the notice of appeal was apparently filed on behalf of
all plaintiffs who brought this action, four of the eight settled
their cases and dismissed their claims and are therefore not
parties to this appeal.
2
Plaintiffs also make passing suggestions that the court erred in
granting defendants' summary judgment motions but have failed to
develop any such argument sufficiently to put the correctness of
the summary judgment rulings in dispute (other than as premised on
the denials of the motions to amend and for additional discovery).
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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including a number of the plaintiffs, attended the negotiation
sessions.
On March 1, 1997, Crowley shut down most of its
operations and laid off most of its employees. On March 6, 1997,
a letter agreement between Crowley and the Union was posted in the
union hall. The agreement listed all the employees laid off as of
March 1, and also those employees who would be temporarily retained
to complete Crowley's residual contractual obligations. The
immediately terminated employees received their last paychecks on
March 7, 1997. On April 17, 1997, the parties reached a second
agreement, known as "the stipulation," which addressed the
"effects" of the shutdown by resolving outstanding benefits issues.
The present case was initiated by six plaintiffs, who
filed a putative class action in the Southern District of Florida
on August 27, 1997, claiming that Crowley and the Union had
violated the CBA's seniority provisions in selecting the employees
who would be retained after the shutdown. The case was transferred
to the District of Puerto Rico and consolidated with a related case
brought in that court by two of the six Florida plaintiffs.
Procedural tangles, discovery disputes, and delays followed. For
our purposes, only the following are of consequence.
The district court denied plaintiffs' motion to certify
a class action on December 29, 1998. On January 28, 1999, one day
before the court's deadline for dispositive motions, plaintiffs
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filed a motion to amend their complaint to add 96 additional
plaintiffs. The following day both Crowley and the Union filed
motions for summary judgment. Thereafter, Crowley and the Union
filed oppositions to the motion to amend, arguing that amendment
was futile because the new plaintiffs' claims were untimely and
filed in bad faith.
At a discovery conference in May 1999, the court ordered
the parties to brief their positions on the timeliness of the
proposed amended complaint and directed defendants to answer
outstanding interrogatories by June 4, 1999. The court also stated
it would "take under advisement whether the motion for summary
[judgment] filed by defendants should be stayed until discovery was
completed." The parties duly filed their briefs on the timeliness
issue. Both sides included evidentiary material in their filings,
much of which duplicated the summary judgment materials.
On June 21, 2000, plaintiffs filed a motion to compel the
depositions of the two affiants who figured prominently in the
defendants' motions for summary judgment. See Fed. R. Civ. P.
56(f). On December 11, 2000, the district court denied the motion
to amend as to 94 of the 96 new plaintiffs, concluding that their
claims were time-barred. The district court did, however, permit
the addition of two other plaintiffs whose claims were not time-
barred because they had filed grievances with the Union about the
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lay-off, thus tolling the statute of limitations. This brought the
total number of plaintiffs to eight.
The case languished for over three years and was then
transferred to a different district judge. On June 28, 2004, the
new judge denied the motion for additional discovery as untimely
and unsupported by the affidavit required by Fed. R. Civ. P. 56(f).
Plaintiffs then filed their response to the pending motions for
summary judgment. On September 30, 2004, the district court
granted partial summary judgment to the Union and Crowley,
dismissing four of the plaintiffs on the ground that their
seniority rights were not violated in the shutdown. The court
denied summary judgment with respect to the other four plaintiffs;
those remaining plaintiffs eventually settled their claims.
The 94 prospective plaintiffs ("the prospective
plaintiffs") whose claims the district court found to have been
time-barred appeal from the court's December 11, 2000 order denying
the motion to amend. The four plaintiffs ("the dismissed
plaintiffs") whose claims were dismissed appeal the court's
September 30, 2004 order partially granting summary judgment in
favor of the defendants. As to this issue, they do not attack the
merits of the summary judgment decision, but rather argue that the
court should have allowed them to conduct additional discovery
before issuing a summary judgment ruling.
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We start with the prospective plaintiffs' challenge to
the denial of their motion to amend. This issue turns on whether
the prospective plaintiffs had timely claims (putting aside the
tolling that occurred while the class action issue was pending).
This question, in turn, turns on when the cause of action accrued.
The district court found, considering the evidence, that the
accrual date was in early March of 1997. The court held that the
motion to amend would be futile for 94 of the 96 prospective
plaintiffs, since their claims were time-barred.
On appeal, the prospective plaintiffs argue that the
accrual date was later than that found by the district court.
Pointing out that motions to amend are to be "freely granted," the
prospective plaintiffs contend that their motion should have been
assessed under the liberal Fed. R. Civ. P. 12(b)(6) standard based
entirely on the "four corners" of the tendered complaint, and that
the district court erred in considering outside evidentiary
materials without notice that it was going to do so. Building on
this position, the prospective plaintiffs further contend that the
court was bound by their allegation that the layoffs did not take
place until April 1, 1997. Alternatively, the prospective
plaintiffs posit that they did not know of their injury until they
learned that defendants had actually violated the CBA's seniority
provisions, and the evidence suggests that did not occur until the
prospective plaintiffs eventually received a copy of the operative
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CBA in July 1997, or, at the earliest, the date of the stipulation
(April 17, 1997).
We review denials of motions to amend pleadings for abuse
of discretion. See Interstate Litho Corp. v. Brown, 255 F.3d 19,
25 (1st Cir. 2001); see also Charles Bank Equity Fund II v. Blinds
to Go, Inc., 370 F.3d 151, 158 (1st Cir. 2004)("An error of law is,
of course, always an abuse of discretion."). Consent to file
amended pleadings "shall be freely given when justice so requires,"
Fed. R. Civ. P. 15(a), unless the amendment would be futile or
reward undue delay, see Steir v. Girl Scouts of the USA, 383 F.3d
7, 12 (1st Cir. 2004); Resolution Trust Corp. v. Gold, 30 F.3d
251, 253 (1st Cir. 1994). In assessing futility, the district
court must apply the standard which applies to motions to dismiss
under Fed. R. Civ. P. 12(b)(6). See Glassman v. Computervision
Corp., 90 F.3d 617, 623 (1st Cir. 1996). The bar for a plaintiff
tendering an amended complaint is higher after a motion for summary
judgment has been filed, as the plaintiff must demonstrate "that
the proposed amendments were supported by substantial and
convincing evidence." Gold, 30 F.3d at 253 (citation and internal
quotation marks omitted); see also Girl Scouts, 383 F.3d at 12.3
3
The prospective plaintiffs' motion to amend was actually filed
one day before the defendants' motions for summary judgment, which
were filed on the deadline for dispositive motions established by
the court. However, all the motions were entered on the electronic
docket the same day, and the district court considered them
together. At bottom, the motion to amend was tendered at the
"eleventh hour to fend off summary judgment," and a court "need not
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We begin on common ground. Both sides agree that a six-
month statute of limitations applies to "hybrid" actions, and that
the clock started ticking when the prospective plaintiffs knew, or
reasonably should have known, of the alleged wrongful acts. See
Arriaga-Zayas v. Int'l Ladies' Garment Workers' Union, 835 F.2d
11, 13 (1st Cir. 1987). The parties also agree, and we accept
arguendo, that the running of the statute was tolled during the
pendency of the motion for class certification. See generally
Basch v. Ground Round, Inc., 139 F.3d 6, 10 (1st Cir. 1998).
Because the prospective plaintiffs did not move to amend the
complaint until January 28, 1999, 30 days after the denial of class
certification, the action is only timely if the case accrued fewer
than five months before the filing of the original class action
complaint on August 27, 1997. The prospective plaintiffs assert
that the accrual date was no earlier than April 1, 1997, rendering
the action timely.
tiptoe through empty formalities to reach foreordained results."
Gold, 30 F.3d at 254 (citation and internal quotation marks
omitted). Also, and in any event, the district court did not err
in assessing the motion under the summary judgment standard. The
prospective plaintiffs were on notice of the possible conversion
when defendants presented evidentiary materials with their briefs,
and the prospective plaintiffs effectively invited the conversion
when they responded in kind, and without objection to defendants'
submissions. See, e.g., Gulf Coast Bank & Trust Co. v. Reder, 355
F.3d 35, 38-39 (1st Cir. 2004); Boateng v. Interamerican
University, Inc., 210 F.3d 56, 60-61 (1st Cir. 2000); Collier v.
City of Chicopee, 158 F.3d 601, 602-604 (1st Cir. 1998).
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The district court correctly concluded that the action
accrued in early March of 1997. The prospective plaintiffs knew,
or had reason to know, of the claimed wrong no later than March 7,
1997, when they received their final paychecks and had the
opportunity to review the letter agreement detailing which workers
were released and which were retained. The prospective plaintiffs
obviously knew that they had been terminated, each knew his or her
individual seniority status, and would have realized that less-
senior employees were retained upon reviewing the letter agreement.
Therefore, the putative amended complaint would have been untimely.
The prospective plaintiffs' contrary arguments are
unpersuasive. With respect to the operative seniority provision in
the CBA that the prospective plaintiffs allege they did not
actually receive until four months after the lay-offs, the
prospective plaintiffs have not contested defendants' assertions
that the provision had been the same for many years and that the
workers were aware of it. The April 17 stipulation is similarly
unhelpful to the prospective plaintiffs, as it deals with the
"effects" of the closing and specifically acknowledges that most of
the workforce was laid off on March 1, 1997. At bottom, the April
1, 1997 layoff date alleged in the complaint is a bare allegation
with no evidentiary support.4 See Nat'l Amusements, Inc. v. Town
4
Indeed, the prospective plaintiffs' actual allegation, as quoted
in their brief, states that the discharges took place from "on or
about February 28th, 1997 to April 1st, 1997." This allegation
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of Dedham, 43 F.3d 731, 735 (1st Cir. 1995)("[W]e need not credit
purely conclusory allegations, indulge rank speculation, or draw
improbable inferences.").
We turn now to the dismissed plaintiffs' argument that
the district court erred in denying their motion for additional
discovery. The dismissed plaintiffs complain that they were misled
by the court's statement that it would take "under advisement" the
question of whether defendants' motions for summary judgment should
be stayed until discovery was completed. The dismissed plaintiffs
also assert that no formal affidavit was required because they
substantially complied with Fed. R. Civ. P. 56(f), and that Rule
56(f) only fully comes into play when an adequate time for
discovery has passed. Central to the dismissed plaintiffs'
argument on this point is their fundamental assertion that deposing
the defendants' affiants was essential to determine the zealousness
of the Union's bargaining tactics.
We review a district court's denial of a Fed. R. Civ. P.
56(f) motion for abuse of discretion. See Resolution Trust Corp.
v. North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994).
While we do not require slavish adherence to Rule 56(f)'s formal
requirements, when additional discovery is sought, such a motion
must (1) be presented in a timely manner; (2) show good cause for
itself implies that some, if not most, of the new claims would be
untimely.
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the failure to discover the necessary facts sooner; (3) set forth
a plausible basis for believing that the necessary facts probably
exist and can be learned in a reasonable time; and (4) establish
that the sought facts, if found, will "influence the outcome of the
pending motion for summary judgment." Id.; see also Velez v.
Awning Windows, Inc., 375 F.3d 35, 39-40 (1st Cir. 2004)
(functionally equivalent statement may substitute for the affidavit
required by Rule 56(f)).
There is a fatal disconnect between the dismissed
plaintiffs' arguments and the district court's summary judgment
decision. The district court granted summary judgment in favor of
defendants on the ground that the dismissed plaintiffs' seniority
rights were not violated in the shutdown. The dismissed
plaintiffs' contentions thus fail to address, let alone cast doubt
upon, the court's rationale on the dispositive issue, see In re
Miles, 436 F.3d 291, 294 (1st Cir. 2006), and disregard Rule
56(f)'s requirement that the requested discovery be capable of
influencing the outcome of the motion for summary judgment, see
Velez, 375 F.3d at 40; Vargas-Ruiz v. Golden Arch Dev., Inc., 368
F.3d 1, 4 (1st Cir. 2004)(the sought "facts, if obtained, would
help defeat pending motion").
Moreover, the dismissed plaintiffs failed to file their
motion for additional discovery until fifteen months after the
motions for summary judgment were filed. This was far too long a
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delay. See Guzman-Ruiz v. Hernandez-Colon, 406 F.3d 31, 35 (1st
Cir. 2005) (three-month delay excessive); Vargas-Ruiz, 368 F.3d at
4 (Rule 56(f) motion should be filed "promptly upon service of
defendant's dispositive motion"). That the district court took
"under advisement" the request to stay the summary judgment motions
until completion of the then-outstanding discovery --
interrogatories that defendants were directed to answer by June 4,
1999 -- cannot reasonably be interpreted to give the dismissed
plaintiffs carte blanche to ignore pending dispositive motions and
discovery deadlines and then propound new discovery requests over
a year later.
It is regrettable that this case languished for years in
the district court. But in the end, the judge to whom the case was
later assigned acted within her discretion in denying the motions
to amend the complaint and for additional discovery. Accordingly,
we affirm the judgments entered on behalf of the defendants in this
matter.
So ordered.
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