United States Court of Appeals
For the First Circuit
No. 06-2495
NELSON RIVERA-TORRES ET AL.,
Plaintiffs, Appellants,
v.
CESÁR REY-HERNÁNDEZ ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Dyk,** Circuit Judge.
Francisco R. González Colón, with whom F.R. González Law
Office was on brief, for appellants.
Luis Rodríguez Muñoz, with whom Roberto Sánchez Ramos,
Secretary of Justice, Salvador Antonetti Stutts, Solicitor General,
Eduardo Vera Ramírez, and Landrón & Vera, LLP were on brief, for
appellees.
September 6, 2007
*
Of the Federal Circuit, sitting by designation.
SELYA, Senior Circuit Judge. The Bard of Avon once
warned that "delays have dangerous ends." William Shakespeare, The
First Part of King Henry the Sixth act 3, sc. 2. This case, in
which the plaintiffs procrastinated for the better part of three
years and cavalierly flouted the discovery deadlines announced by
the district court, bears out that admonition. The tale follows.
The pertinent facts are easily summarized. The sixty-
four plaintiffs claim to be members of the New Progressive Party
(NPP). In the turn-of-the-century general election, held in
November of 2000, the NPP lost control of Puerto Rico's central
government and its main rival, the Popular Democratic Party (PDP),
ascended to power. A new administration took office in January of
2001.
As part and parcel of this changing of the guard, Cesár
Rey-Hernández (Rey) became Secretary of the Puerto Rico Department
of Education (DOE). He, in turn, appointed José Aldanondo-Rivera
(Aldanondo) to head up the DOE's adult education program (AEP) and
Santos Meléndez as the AEP's general supervisor. All of these men
had ties to the PDP.
Prior to the 2001-2002 school year, the plaintiffs were
employed by the AEP under serial one-year contracts. Those
contracts were not renewed for the 2001-2002 school year. When
that happened, the plaintiffs sued Rey, Aldanondo, and Meléndez in
the federal district court. Invoking 42 U.S.C. § 1983 and various
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provisions of Puerto Rico's civil code, they chiefly alleged
political discrimination. See, e.g., Branti v. Finkel, 445 U.S.
507, 515-16 (1980); Elrod v. Burns, 427 U.S. 347, 373 (1976).
From our coign of vantage, the travel of the case is more
important than the details of the plaintiffs' substantive claims.
Consequently, we do not dwell on their allegations but, rather,
limn the relevant procedural history. This is the chronology:
1. June 23, 2003. The plaintiffs
commenced their civil action.
2. August 19, 2004. The district
court issued a case-management order that,
among other things, required discovery to be
completed by January 15, 2005.
3. August 30, 2004. The plaintiffs
filed an amended complaint designed to add the
nine regional directors of the AEP as
additional defendants. The district court
issued summonses to be served on the regional
directors by September 20, 2004.
4. February 21, 2005. The plaintiffs
(who had not yet served the regional
directors) moved for re-issuance of the now-
expired summonses.
5. March 3, 2005. With the discovery
deadline already in the rear-view mirror, the
plaintiffs requested an additional period of
between 30 and 50 days within which to conduct
discovery.
6. March 22, 2005. The plaintiffs
sent written depositions to the regional
directors without subpoenaing them even though
the regional directors had never been served
with summonses or otherwise made parties to
the case.
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7. April 7, 2005. The district court
refused to re-issue summonses for the regional
directors (see Item No. 4, supra), calling the
plaintiffs' failure to serve them in a timely
manner "inexcusable" and "negligent." The
court also denied the plaintiffs' request to
reopen the discovery period (see Item No. 5,
supra). In its order, the court left the
parties free to conduct consensual discovery,
but warned that it "will not entertain any
disputes regarding . . . discovery" and that
"[no] deadlines or settings [will] be
changed."
8. July 29, 2005. Citing the
dismissal of a federal discrimination claim in
another case involving the AEP,1 the district
court gave the defendants until September 30,
2005 (later extended until October 24, 2005)
to file dispositive motions. The court gave
the plaintiffs until November 30, 2005 to file
oppositions to any such motions.
9. October 23, 2005. The defendants
filed a motion for summary judgment.
10. October 25, 2005. The plaintiffs
requested an additional period (until January
20, 2006) within which to oppose the summary
judgment motion.
11. November 8, 2005. The district
court granted the plaintiffs their requested
extension to file an opposition to the summary
judgment motion (see Item No. 10, supra). The
court warned explicitly that "no more
extensions will be allowed."
12. January 18, 2006. Notwithstanding
the district court's express caveat (see Item
No. 11, supra), the plaintiffs requested a
further extension, until March 20, 2006, for
1
The decision that the district court cited was recently
affirmed on appeal. See Hatfield-Bermudez v. Aldanondo-Rivera, ___
F.3d ___ (1st Cir. 2007) [2007 WL 2231623]. It has no bearing on
the issues before us.
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filing an opposition to the summary judgment
motion.
13. March 3, 2006. The plaintiffs
subpoenaed documents held by Rey's successor
as Secretary of Education, Rafael Aragunde
(not a party to the action). Among other
things, the subpoena sought a list of all
school directors and other employees of the
AEP during the 2000-2001 and 2001-2002
academic years. The plaintiffs never received
the list and the defendants deny that such a
list ever existed.
14. March 7, 2006. The plaintiffs
filed yet another motion for an extension of
time to respond to the summary judgment
motion. This time, they invoked Fed. R. Civ.
P. 56(f) and professed a need for more
discovery in order to oppose summary judgment.
In an accompanying memorandum, their attorney
claimed that he needed to depose the regional
directors before composing such an opposition.
15. March 23, 2006. The defendants
requested that the court deem their summary
judgment motion unopposed.
16. April 5, 2006. The case was
transferred to the calendar of a newly
appointed district judge.
17. May 31, 2006. The district court
denied as moot the plaintiffs' January 18,
2006 request for an extension of time within
which to oppose the summary judgment motion
(see Item No. 12, supra).
18. August 14, 2006. Pursuant to the
filling of yet another judicial vacancy, the
case was again transferred to the calendar of
a newly-appointed district judge.
19. August 17, 2006. The district
court denied the Rule 56(f) motion (see Item
No. 14, supra) and granted the defendants'
entreaty to deem the summary motion unopposed
(see Item No. 15, supra).
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20. August 23, 2006. Discerning no
genuine issue as to any material fact, the
district court (Gelpí, J.) entered summary
judgment in favor of the defendants.
This timely appeal ensued. In it, the plaintiffs assail
the district court's refusal to grant further extensions of the
discovery deadline; its decision to deem the summary judgment
motion unopposed; and its subsequent entry of summary judgment.
For the most part, these claims of error are so weak as
not to warrant extended discussion. The district court exhibited
great patience with the plaintiffs, warned them explicitly that
continued noncompliance would have consequences, and took final
action only when the plaintiffs had piled delay upon delay.
"[C]ourts — like the deity — are more prone to help those who help
themselves," Williams v. Drake, 146 F.3d 44, 50 (1st Cir. 1998),
and the plaintiffs, through their indolence, forfeited any
plausible claim to further indulgences.
The one point that merits elaboration is the plaintiffs'
attempt to invoke Federal Rule of Civil Procedure 56(f).2 We turn
2
The rule states:
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.
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to the district court's ruling on that issue, mindful that a
district court's denial of a Rule 56(f) motion is reviewed on
appeal solely for abuse of discretion. See, e.g., Mass. Sch. of
Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 44 (1st Cir.
1998).
We begin with bedrock: Rule 56(f) serves a salutary
purpose within the summary judgment framework. When a party
confronted by a motion for summary judgment legitimately needs
additional time to marshal the facts necessary to mount an
opposition, the rule provides a useful safety valve. See
Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198,
1203 (1st Cir. 1994). Deployed appropriately, "[t]he rule . . .
safeguard[s] against judges swinging the summary judgment axe too
hastily." Id.
Be that as it may, the prophylaxis of Rule 56(f) is not
available merely for the asking. A litigant who seeks to invoke
the rule must act with due diligence to show that his predicament
fits within its confines. To that end, the litigant must submit to
the trial court an affidavit or other authoritative document
showing (i) good cause for his inability to have discovered or
marshalled the necessary facts earlier in the proceedings; (ii) a
plausible basis for believing that additional facts probably exist
and can be retrieved within a reasonable time; and (iii) an
explanation of how those facts, if collected, will suffice to
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defeat the pending summary judgment motion. See Vélez v. Awning
Windows, Inc., 375 F.3d 35, 40 (1st Cir. 2004); Paterson-Leitch Co.
v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir.
1998).
We add a further caveat: Rule 56(f) is not designed to
give relief to those who sleep upon their rights. See Ayala-Gerena
v. Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996).
Consequently, a party seeking to derive the benefit of Rule 56(f)
must demonstrate due diligence both in conducting discovery before
the emergence of the summary judgment motion and in pursuing an
extension of time once the motion has surfaced. See Resolution
Trust, 22 F.3d at 1203.
Viewed through this prism, we do not think that the
district court abused its discretion in denying the plaintiffs'
Rule 56(f) motion. In the first place, the plaintiffs' proffer
fell far short of the requisite showing. In the second place, the
plaintiffs' conduct, both before and after the emergence of the
summary judgment motion, was characterized by the polar opposite of
due diligence. We explain briefly.
To begin, the plaintiffs' Rule 56(f) motion failed to
show good cause for their professed inability to conduct the
desired discovery at an earlier date. The district court afforded
the parties a reasonable interval for pretrial discovery — they had
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almost 18 months from the inception of the action — and, for aught
that appears, the plaintiffs simply frittered the time away.
This is not to say that the plaintiffs are short on
excuses; they variously blame the defendants' uncooperative
attitude during discovery, the regional directors' evasiveness, the
transfer of the case from judge to judge, and what they perceive as
a gadarene rush to judgment in the summer of 2006. But once past
the plaintiffs' rhetorical flourishes, the frailty of these excuses
becomes readily apparent. None of them shows good cause for the
plaintiffs' inordinate delay.
The claim that the defendants disrupted the discovery
process is belied by the plaintiffs' abject failure to use the
available means of discovery during the generous discovery period
allowed by the district court. Indeed, the plaintiffs' claim of
disruption centers on something that occurred after the close of
formal discovery and during the subsequent period of consensual
discovery permitted by the district court (see Item No. 8, supra):
the defendants' refusal to hand over a list of AEP directors and
employees for the 2000-2001 and 2001-2002 school years. In
addition to an obvious lack of timeliness, this claim suffers from
no fewer than three major infirmities: the plaintiffs have not
shown that such a list existed, nor have they shown that they could
not have compiled such a list themselves from the copious documents
transmitted to them in the discovery process, nor have they shown
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that they seasonably availed themselves of any of the usual
remedies for a failure of production during the discovery period.
See, e.g., Fed. R. Civ. P. 37.
In all events, the list had no direct bearing on the
plaintiffs' ability to conduct the discovery sought in their Rule
56(f) motion: the depositions of the regional directors. Those
depositions could (and should) have been taken in a timely manner
regardless of the availability of the evanescent list.
Much the same can be said about the plaint that the
regional directors' failure to answer the written depositions
addressed to them handicapped the plaintiffs. First, the
plaintiffs' appellate brief conspicuously fails to justify why they
failed to submit the written depositions (and subpoena the
witnesses, if necessary) within the discovery period. Second,
notwithstanding the regional directors' lack of cooperation, the
plaintiffs inexplicably waited an entire year before asking the
court for additional discovery vis-à-vis the regional directors.
This brings us to the plaintiffs' importuning that the
transfer of the case from judge to judge, together with Judge
Gelpí's prompt adjudication of outstanding motions once the case
was assigned to his calendar, unfairly surprised them. This
importuning rings hollow. Parties have no vested right to have
their cases heard by a particular judge. See United States v.
Colon-Munoz, 292 F.3d 18, 22 (1st Cir. 2002); Sinito v. United
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States, 750 F.2d 512, 515 (6th Cir. 1984). And to deem the court's
adjudication "hasty" is ludicrous. Nearly ten months passed
between the filing of the defendants' motion for summary judgment
and the granting of the defendants' request to deem that motion
unopposed. That hardly can be characterized as a rush to judgment.
Cf. D.P.R.R. 7(b) (allowing ten days within which to respond to
motions).
To cinch matters, the district court explicitly warned
the plaintiffs in November of 2005 that no further extensions of
time would be permitted in connection with the pending summary
judgment motion. See Item No. 11, supra. Given this aposematic
statement, the plaintiffs had every reason to believe that
continued inattention to the summary judgment motion would prove
problematic. Parties ought to expect that courts will say what
they mean and mean what they say. See, e.g., Torres v. Puerto
Rico, 485 F.3d 5, 10 (1st Cir. 2007). Seen in this light, the
district court's disposition of the motion in August of 2006 could
not have come as a surprise.
At the expense of carting coal to Newcastle, we add that
the plaintiffs also failed to satisfy the second and third elements
of the Rule 56(f) standard. The motion papers disclose no
plausible basis for a belief that deposing the regional directors
would lead to material facts that might defeat summary judgment.
To the contrary, the motion is wholly conclusory; it merely states
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that "the information that could be obtained from the regional
directors' depositions [is] essential" to crafting an opposition to
the summary judgment motion. Speculative conclusions, unanchored
in facts, are not sufficient to ground a Rule 56(f) motion. See,
e.g., Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 4 (1st
Cir. 2004) (explaining that, in this context, a plaintiff's
"optimistic surmise" carries no weight); Paterson-Leitch, 840 F.2d
at 989 (stating that "cryptic allusions [that] fail[] to set out
any basis for believing that some discoverable material facts . .
. exist" are "entirely insufficient to extract the balm of Rule
56(f)").
The final straw is the plaintiffs' utter disregard for
deadlines throughout the course of this litigation. The plaintiffs
were afforded ample time within which to conduct discovery. They
were given one extension and warned that no further extensions
would be forthcoming. In all, a full twenty-eight months passed
between the commencement of the action and the filing of the
summary judgment motion. We think it significant that, early on,
the plaintiffs recognized the potential importance of the regional
directors; after all, they attempted to amend their complaint to
add the regional directors as defendants on August 30, 2004 (see
Item No. 3, supra). At that point in time, the discovery period
was still open and the summary judgment motion was more than a year
from being filed. The plaintiffs nonetheless neglected to secure
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the regional directors' testimony during the time allotted for
pretrial discovery.
Even after the defendants moved for summary judgment, the
plaintiffs dragged their feet: they lollygagged more than five
months before filing their Rule 56(f) motion and announcing their
professed need to depose the regional directors. That was too
little and too late: Rule 56(f) is meant to minister to the
vigilant, not to those who sleep upon perceptible rights.
On this record, we conclude without serious question that
the district court acted within the realm of its discretion in
denying the plaintiffs' Rule 56(f) motion.3 Relatedly, we conclude
that the court, faced with a summary judgment motion that had been
pending for nearly ten months without a substantive response, acted
within its discretion in deeming that motion unopposed. See Vélez,
375 F.3d at 41.
That brings us to the merits of the motion for summary
judgment. We have reviewed that motion and the supporting papers,
mindful that even an unopposed motion for summary judgment should
not be granted unless the record discloses that there is no genuine
issue as to any material fact and that the movant is entitled to
3
As an added justification for their failure to oppose the
motion for summary judgment in a timely manner, the plaintiffs
allude to their counsel's poor health. This allusion does not help
their cause: the attorney's "transient ischemic attack" reportedly
occurred on June 13, 2006 — five months after the opposition was
due and three months after the plaintiffs filed their (inadequate)
Rule 56(f) motion.
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judgment as a matter of law. See id. at 42; Mendez v. Banco
Popular de P.R., 900 F.2d 4, 7-8 (1st Cir. 1990); see also Fed. R.
Civ. P. 56(e) (instructing that if the adverse party fails to
respond, "summary judgment, if appropriate, shall be entered")
(emphasis supplied). The instant motion passes that rigorous test.
We need go no further. The plaintiffs have made a
gallimaufry of other arguments, but all of them are either plainly
incorrect, insufficiently developed, or both. Accordingly, we hold
that the district court did not err in entering summary judgment in
favor of the defendants.
Affirmed.
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