Court of Appeals
For the First
FRANCISCO CORRADA BETANCES,
SEA-LAND SERVICE, INC.,
APPEAL FROM THE UNITED STATES
FOR THE DISTRICT OF PUERTO
[Hon. Jaime Pieras, Jr.,
Senior U.S. District Judge]
Selya, Boudin and Lynch,
Harry Anduze Montaño and Noelma Colon Cordoves on brief
Raquel M. Dulzaides, Carlos George, and Jimenez,
Graffam & Lausell on brief for appellee.
SELYA, Circuit Judge. In this appeal, plaintiff-appellant Francisco
Corrada Betances (Corrada) invites us to reverse a summary judgment
order entered in favor of his former employer, defendant-appellee
Sea-Land Service, Inc. (Sea-Land). We decline the invitation.
The summary judgment record (which,
as we shall see, consists almost entirely of Sea-Land's submissions)
reveals that, in late 1992, Corrada began working as assistant
manager of Sea-Land's marine department in Puerto Rico. His duties
involved supervising the loading and unloading of vessels and
performing ancillary administrative tasks.
At all times relevant hereto, Sea-Land
had in force a personnel policy prohibiting employees both from
drinking while working and from appearing at work under the influence
of alcohol. The policy stipulated that a first infraction would
result in a two-week suspension without pay and that a second
infraction, occurring within eighteen months of the first, would
result in loss of employment. Sea-Land furnished a copy of this
policy to Corrada coincident with his hiring.
At the end of his shift on April
21, 1997, Corrada left Sea-Land's premises with Ernie Ostolaza,
a fellow supervisor. The pair visited various watering holes,
imbibing as they went. Five hours later, they returned to Sea-Land's
premises to retrieve Ostolaza's car. After they arrived, they
did not simply drive away, but, rather, entered the marine department
office (where others were still toiling) and engaged in raucous
behavior. The matter apparently was reported through channels
and, on April 22, Corrada and Ostolaza were suspended for two
weeks. For aught that appears, this suspension was neither vacated
Corrada returned to work in May.
On November 11, 1997, he called the office to say that he would
be late for work. When he arrived, he was wearing the same clothes
that he had been wearing the day before, and a fellow supervisor,
Victor Ortega, smelled a strong odor of alcohol on his breath.
Various co-workers noticed slurred speech, bloodshot eyes, slumped
posture, and other indicia of inebriation. The marine manager,
Juan Carrero, spent a few minutes with Corrada, obviously disliked
what he saw, told Corrada that he was in no shape to work, and
ordered him to leave the premises. The next day, Sea-Land terminated
Invoking diversity jurisdiction,
28 U.S.C. § 1332(a), Corrada sued Sea-Land in Puerto Rico's
federal district court. He charged that his firing was unjustified,
that statements made by Sea-Land's hierarchs regarding his discharge
violated his privacy rights, and that Sea-Land had defamed him.
The case ended when the district court granted Sea-Land's motion
for summary judgment. Corrada Betances v. Sea-Land
Serv., Inc., No. 99-1671 (D.P.R. July 24, 2000) (unpublished).
This appeal ensued.
There is little point in attempting
to reinvent a well-fashioned wheel. Where, as here, a trial judge
astutely takes the measure of a case and hands down a convincing,
well-reasoned decision, "an appellate court should refrain
from writing at length to no other end than to hear its own words
resonate." Lawton v. State Mut. Life Assur. Co.,
101 F.3d 218, 220 (1st Cir. 1996); accord Cruz-Ramos
v. P.R. Sun Oil Co., 202 F.3d 381, 383 (1st Cir. 2000);
Ayala v. Union de Tronquistas de P.R., 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). Consequently,
with one exception (discussed infra), we affirm the judgment
below for substantially the reasons elucidated in Judge Pieras's
thoughtful rescript. We add only a few comments about Corrada's
wrongful discharge claim, and then discuss the one aspect of
the case where we disagree with the district court's rationale.
We rely entirely on the trial court's rescript vis-à-vis
Corrada's privacy claims. And, inasmuch as Corrada's appellate
brief contains no developed argumentation in support of his defamation
claim, we deem that claim abandoned. United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Corrada complains bitterly that
the lower court impermissibly credited Sea-Land's version of
the facts. But Corrada himself neither volunteered an affidavit
nor filed any other materials of evidentiary quality to contradict
Sea-Land's documented account. A party who opposes a properly
substantiated motion for summary judgment but fails to muster
counter-affidavits or other evidentiary materials does so at
his peril. Kelly v. United States, 924 F.2d 355,
358 (1st Cir. 1991) (warning of the dangers of giving one's litigation
adversary a free hand in configuring the summary judgment record).
To be sure, Corrada's attorney did
file legal memoranda in the district court suggesting, for example,
that Sea-Land's stated reliance on corporate policy was pretextual
and that its real reasons for cashiering Corrada were spiteful.
Such filings, however, are manifestly insufficient to create
genuine issues of material fact (and, thus, to deflect the blade
of the summary judgment ax). We have held before, and today reaffirm,
that statements contained in a memorandum or lawyer's brief are
insufficient, for summary judgment purposes, to establish material
facts. See, e.g., Fragoso v. Lopez,
991 F.2d 878, 887 (1st Cir. 1993); Kelly, 924 F.2d at
By the same token, Corrada does
not profit, in the circumstances of this case, from his filing
of a so-called "Counterstatement of Uncontested Material
Facts." We explain briefly.
The District of Puerto Rico has
adopted a local rule that requires a party who moves for summary
judgment to submit, in support of the motion, "a separate,
short, and concise statement of the material facts as to which
the moving party contends there is no genuine issue to be tried
and the basis of such contention as to each material fact, properly
supported by specific reference to the record." D.P.R.R.
311.12. Once Sea-Land complied with this directive -- as it did
-- the same rule then obligated Corrada, as the opposing party,
to proffer a comparable statement limning "the material
facts as to which it is contended that there exists a genuine
issue to be tried, properly supported by specific reference
to the record." Id. (emphasis supplied).
With regard to this particular section
of the rule, we have recently reiterated that the nonmovant's
"failure to present a statement of disputed facts, embroidered
with specific citations to the record, justifies the court's
deeming the facts presented in the movant's statement of undisputed
facts admitted." Ruiz Rivera v. Riley, 209
F.3d 24, 28 (1st Cir. 2000); accord Morales v.
A.C. Orssleff's EFTF, ___ F.3d ___, ___ (1st Cir. 2001)
[No. 00-1707, slip op. at 3]. These authorities undermine Corrada's
attempted reliance on his response to Sea-Land's meticulous Rule
311.12 statement as a basis for this appeal. That response was
woefully deficient. Although Corrada stalwartly refused to admit
many of the facts assembled by Sea-Land, he utterly failed to
point to any record references, let alone any admissible evidence,
that might support a contrary version.(2)
That ends this portion of our inquiry.
Bombast and bluster, wholly detached from verified facts of record,
cannot serve to blunt the force of a movant's statement of undisputed
facts. Thus, the district court acted appropriately in crediting
Sea-Land's statement of material facts not in dispute.
Corrada asserts that the district
court should have allowed him more time for pretrial discovery
before ruling on Sea-Land's dispositive motion. This assertion
comes too late.
We will not belabor the obvious.
Corrada did not file a Rule 56(f) motion, nor did he bring to
the district court's attention in any equivalent manner the "denial
of discovery" plaint that he voices here. Those omissions
defeat his afterthought claim. If any principle is firmly established
in this circuit, it is that, in the absence of excusatory circumstances
-- and none are apparent here -- arguments not seasonably raised
in the district court cannot be raised for the first time on
appeal. Teamsters Union, Local No. 59 v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992); McCoy
v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991).
That principle pertains here.(3)
Our last comment requires us to
part company with the lower court. Among his array of claims,
Corrada asserted a cause of action under 29 P.R. Laws Ann. §§
185a-185m (Law 80). That statute provides remediation for employees
at will who are discharged without good cause.
In this instance, the district court,
having foreclosed Corrada's other initiatives, declined to address
his Law 80 claim on jurisdictional grounds. The court reasoned
that it lacked subject matter jurisdiction because this claim,
standing alone, failed to satisfy the amount in controversy requirement
($75,000) established as a prerequisite to federal diversity
U.S.C. § 1332(a).
We review de novo a district court's
determination that it lacks subject matter jurisdiction. Barrett
v. Lombardi, 239 F.3d 23, 30 (1st Cir. 2001). Despite
our admiration for the district court's adroit handling of the
other issues in this case, we think that the court erred in concluding
that subject matter jurisdiction was wanting.
The critical time for determining
the existence vel non of the amount in controversy
is the inception of the suit, i.e., the time of filing. See
St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 289-90 (1938); Coventry Sewage Assocs. v. Dworkin
Realty Co., 71 F.3d 1, 6 (1st Cir. 1995). The amount claimed
at that time controls, so long as asserted in good faith. St.
Paul, 303 U.S. at 288; Mas v. Perry, 489 F.2d
1396, 1400 (5th Cir. 1974). Thus, a court can dismiss an action
for insufficiency of the amount in controversy only when, from
the face of the complaint, the court can conclude to a legal
certainty that the plaintiff is not entitled to recover the threshold
amount. Barrett, 239 F.3d at 30-31.
At the inception of this suit, the
complaint contained wrongful discharge, invasion of privacy,
and defamation claims (as well as the Law 80 claim). These causes
of action had the collective potential to reap a harvest well
in excess of $75,000. No more was exigible to satisfy the amount
in controversy requirement. See id. Moreover, once
diversity jurisdiction had attached, subsequent events (e.g.,
the revealed impotency of Corrada's potentially more munificent
claims) could not work a divestiture. See St. Paul,
303 U.S. at 289-90.
The district court's error, however,
was altogether harmless. Consequently, it neither necessitates
vacation of the judgment nor affects the outcome on appeal. No
award is due under Law 80 if an employee is dismissed for "good
cause." 29 P.R. Laws Ann. § 185b.(5)
The law defines "good cause" to include, inter alia,
situations in which an employee is cashiered for "indulg[ing]
in a pattern of improper or disorderly conduct," id.
§ 185b(a), and those in which he or she is discharged for
repeatedly violating "reasonable rules and regulations established
for the operation of the [employer's business], provided a written
copy thereof has been opportunely furnished to the employee."
Id. § 185b(c). Both of these definitions apply here.
Thus, based on the uncontradicted facts, the record in this case
leaves no doubt that good cause (i.e., the serial violations
of the "no drinking on the job" policy) existed for
Sea-Land's decision to hand Corrada his walking papers.
We therefore affirm the judgment
as to the Law 80 claim on this alternate ground. See Houlton
Citizens' Coalition v. Town of Houlton, 175 F.3d 178,
184 (1st Cir. 1999) (explaining that the court of appeals may
affirm the entry of judgment on any ground made manifest by the
Since the record, carefully scrutinized,
confirms that (1) Sea-Land had an established personnel policy
prohibiting reporting to work in an intoxicated condition, and
(2) Corrada, having once been suspended for violating the policy,
again flouted it, Sea-Land justifiably fired him in response
to the second violation. That discharge was for good cause; and,
for the reasons stated by the district court, Sea-Land accomplished
it without infringing Corrada's privacy rights or defaming him.
We need go no further.
1. This undermines
the claim made in Corrada's appellate brief, that his initial
suspension was unwarranted under a literal interpretation of
the personnel policy (which threatens suspension if an employee
"is found to be drinking on the job or if [he] reports to
work under the influence of alcohol").
2. In all events,
Corrada's counter-statement did not contest the existence of
Sea-Land's "no drinking on the job" policy, the occurrence
of his earlier suspension, or the fact that he reported to work
intoxicated on the day before Sea-Land fired him. He apparently
concedes that these facts are incontrovertible.
3. In all events,
Corrada had ample time within which to conduct discovery. He
started suit on June 16, 1999, and Sea-Land did not move for
summary judgment until nearly a year later (May 31, 2000).
pay is the exclusive remedy afforded by Law 80. See 29
P.R. Laws Ann. § 185a. The statute provides for varying
payments depending on years of service. Since Corrada worked
for Sea-Land for slightly over five years, he would have been
entitled to two months' wages as severance pay under Law 80 had
he prevailed. See id. Corrada's annual salary at
the time of his discharge was $39,529.34. Thus, his Law 80 claim,
if successful, would have yielded an award substantially below
the amount in controversy required as a precondition to federal
diversity jurisdiction. See 28 U.S.C. § 1332(a).
5. A minor discrepancy
deserves comment. The title of article 185b refers to dismissal
for "just cause," whereas the text predominantly uses
the term "good cause." As a general rule, the language
of the statutory text holds sway over the wording of the title.
Penn. Dep't of Corrs. v. Yeskey, 524 U.S. 206,
212 (1998). In this instance, however, the two terms appear to
be used synonymously. Accordingly, we treat them as interchangeable.