Professional Documents
Culture Documents
Goldman v. Rodriguez, 1st Cir. (1993)
Goldman v. Rodriguez, 1st Cir. (1993)
January 6, 1993
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 92-1458
GOLDMAN, ANTONETTI, FERRAIUOLI,
AXTMAYER & HERTELL, A PARTNERSHIP,
Plaintiff, Appellee,
v.
MEDFIT INTERNATIONAL, INC., ET. AL.,
Defendants, Appellees,
HECTOR RODRIGUEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
Stahl, Circuit Judge.
_____________
____________________
Defendant-appellant
Hector
We affirm.
I.
I.
__
6,
1990,
the Puerto
Rico
law
firm
of
Goldman,
("GAFAH")1
Antonetti,
Ferraiuoli,
filed a complaint
Axtmayer
&
("Medfit"),
$101,294.38.2
breached
seeking payment
The
of
complaint alleged
an agreement
Hertell
with Ferraiuoli,
International,
legal fees
that
totalling
defendants had
Axtmayer &
Hertell
development,
and
of
latex
the
glove
manufacturing business.3
____________________
1. GAFAH was the original plaintiff in this case. However,
plaintiff-appellee Goldman, Antonetti, Ferraiuoli & Axtmayer
("GAFA" or "plaintiff") was substituted for GAFAH after
Hertell left the partnership in September of 1990.
2. Default was subsequently entered against Smith and Medfit
for failure to answer the complaint.
The action against
George and Lorin Croce was dismissed with prejudice, pursuant
to Fed. R. Civ. P. 41(a)(1), after they agreed to pay
plaintiff $10,000.00 towards the legal fees due.
None of
these defendants is a party to this appeal.
3. More specifically, plaintiff claims that it agreed to
render professional services on an hourly fee basis, and that
its fees would be payable by Rodriguez and Smith personally
-22
Subsequently,
complaint
Federal
Rodriguez
pursuant to
Rules
record, the
of
Rules
Civil
moved
4(e) and
Procedure.
district court
to
dismiss
the
12(b)(1)-(7) of
After
the
reviewing
the
as a
August 2,
1991,
the district
court issued
That
1991, and
order warned
a bench trial
the parties
under Fed.
R. Civ.
and settlement
P. 16(f).
that any
16,
failure to
in the imposition of
This
warning was
Despite these
warnings, Rodriguez
November
1991,
15,
for December
pretrial
and
November 15,
failed to appear
settlement
1991.4
for the
conference.
____________________
"until such time as financing was obtained" for their latex
glove manufacturing project. Rodriguez, on the other hand,
contends to have entered into an oral fee agreement with
plaintiff on behalf of Medfit Products Puerto Rico, Inc.
__ ______ __
("MPPR"). Rodriguez also claims that the agreement set forth
a contingent fee arrangement, "said contingency being the
successful financing and closing of the proposed latex glove
project[,]" and denies that he is or ever was personally
responsible for payment of the legal fees owed to plaintiff.
4.
judgment
January
district court's
not
17,
1992,
Rodriguez
telephoned
the
that he would
Rodriguez did
valid
justification
Accordingly, when
district
for
his
anticipated
absence.
was in default.
The district
interest from
and
Medfit.
Rodriguez and
The
district
the
previously defaulted
court
found
all three
On
appeal,
arguments:
(1) that
grant
motion to
abused
his
Rodriguez
three
principal
failing to
dismiss; (2)
its discretion
cross-claim;
and
makes
that the
in dismissing
(3) that
the
district court
his counterclaims
district
court abused
and
its
____________________
5. In so doing, the district court also took note of
Rodriguez's failure to prepare a pretrial order and his
failure otherwise to comply with its orders.
-44
discretion
in entering
default judgment
against him.6
We
first
his motion to
challenges
the district
court's
the district
over the
substance of
agreement; (2)
district
court;
and
(3)
that
MPPR
was
not
an
We disagree
was
is
no dispute
properly
treated
that
as
Rodriguez's
a
motion
for
motion to
summary
Appellate review of a
____________________
6. Rodriguez also litters his brief and reply brief with
one-sentence allegations of error that are accompanied by
neither argument nor supporting authority.
Time and time
again, we have warned litigants that "issues raised in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deem waived."
See, e.g., Elgabri v.
___
____ _______
Lekas, 964 F.2d 1255, 1261 (1st Cir. 1992) (quoting United
_____
______
States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied,
______
_______
_____ ______
494 U.S. 1082 (1990)).
Accordingly, we do not address the
merits of Rodriguez's one-sentence arguments.
-55
92-1389, slip
op. at 4
judgment shall
that there
is no genuine issue
22, 1992).
Summary
as to any material
fact and
Fed.
Catrett,
_______
477 U.S.
summary
burden
R. Civ.
P.
317, 323
judgment "bears
of
56(c); see
___
(1986).
both the
demonstrating its
judgment."
Lopez v.
_____
also
____
Celotex Corp.
_____________
The party
initial and
legal
matter of
v.
moving for
the ultimate
entitlement
to summary
Furthermore,
like the
hospitable to
the
party
opposing
1990)),
"Nonetheless,
the
denied,
______
nonmovant
112
cannot
suitable evidentiary
judgment,
Griggs-Ryan v. Smith,
___________
_____
cert.
_____
summary
822 (1st
Ct.
2965
content
(1992).
with
forth specific
form, in order
115 (1st
himself
he must set
Cir.
to establish
Rivera-Muriente
_______________
v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir. 1992).
_____________
2. The Unsworn Statement
_________________________
Axtmayer's unsworn statement
of
perjury
was
submitted
in
signed under
support
of
penalty
plaintiff's
-66
opposition
to
Rodriguez's motion
in
to
dismiss.7
Rodriguez
Axtmayer's
unsworn statement
constitutes
an
federal
law,
of perjury
or affidavit, to
summary judgment.
may be used,
support or
See 28 U.S.C.
___
____________________
an unsworn
We disagree.
statement
in lieu
oppose a
1746;8
of a
signed
sworn
motion for
7.
Axtmayer's
1746 provides:
Rogers,
______
(holding that an
"technical, non-substantive
execution" may
party's opposition to a
as part
of a
be considered
U.S.C.
Supp. 1065,
penalty of perjury
support
of
motion
may be
for
1746, the
it
weight
the
same
defendant's
motion.
statement established
considered as
summary
evidence in
judgment).
Because
requirements
as an
affidavit
when
Therefore, because
the existence
of a
it
considered
Axtmayer's unsworn
genuine, material
noted, Rodriguez
court's ruling
that it
also challenges
the district
over him.
____________________
. . . .
If executed within the United States, its
territories, possessions, or commonwealths:
"I declare (or certify, verify, or state)
under penalty of perjury that the foregoing
is true and correct. Executed on (date).
(Signature)".
-88
have
when
jurisdiction.9
by
considered the
the fact
it
decided
However,
that a
of a
889 F.2d
presented
on a
judgment,
in
__
to dismiss
1175, 1178
which was
the
to
personam
________
undermined
may go beyond
the four
motion to
deemed
Accordingly,
of
Axtmayer's
for
lack of
in
__
Capellan,
________
jurisdiction,
question
district court
motion
jurisdiction.
the
in
Rodriguez's argument is
allegations
(1st Cir.
dismiss for
converted to
be
district
"available
court
personam
________
v. Mendez_______
1989) (affidavits
lack of
in personam
__ ________
a motion
for summary
for
either
committed
no
motion").
error
in
is
well
established
that
in
diversity
cases,
`the
district court's
defendant
is
personal
jurisdiction over
governed by
the
forum's long-arm
1990) (quoting
F.2d 15,
Puerto
Rico
19 (1st
Rules of
nonresident
statute.'"
Cir. 1983)).
Civil
Rule 4.7(a)(1)
Procedure,
of the
the Commonwealth's
____________________
9. Axtmayer's statement asserts that Rodriguez personally
initiated the negotiations which led to the representation
and fee agreements with GAFAH's predecessor firm in a 1987
visit to the firm's offices.
-99
long-arm
statute,
allows
Puerto
personal
jurisdiction over a
Rico
courts
to
assert
P.R.
907 F.2d at
App. III, R.
1258.
. .
4.7(a)(1) (1983);
jurisdiction to be permissible,
an
two additional
tests
must be met.
arise out
Id. (quoting
___
action must
requirements
rise
of "fair
to
play
level
and
where
the
due
cause
process
substantial justice,"
Washington,
__________
326
U.S. 310,
see
___
316
See id.10
___ ___
____________________
10. The Supreme
contacts" rule:
Court has
elaborated
upon this
"minimum
Here,
Rodriguez
there is
initiated
negotiations
and
which led
undisputed
record
personally
participated
to the
evidence
fee agreement
that
in
the
which is
the
to
the reach
arose out of
at GAFAH's predecessor
Thus, it
firm's
of 4.7(a)(1)
and
that the
Rodriguez's action in
cause of
Rico corporation.11
Rodriguez's
plaintiff,
solicitation and
leaves little
the forum
protections
of
its
Therefore,
we
find
conclusion
that its
. .,
thus
laws."
no
when coupled
subsequent
retention of
doubt that
the privilege
.
This fact,
Rodriguez purposefully
of conducting
invoking the
Hanson,
______
error
assertion of
in
357
the
in
__
activities
benefits
U.S.
district
at
and
253.
court's
personam jurisdiction
________
or
Constitution.
the Due
Process
Clause
of the
United
States
4. Rule 19(b)
______________
____________________
11. These activities took place over a two-year span and
allegedly generated the $101,294.38 of unpaid fees and
expenses plaintiff is seeking.
-1111
court
plaintiff's
failure
indispensable party
to
join
under Fed.
MPPR
R.
as
Civ. P.
non-diverse
19(b).12
This
the
district court
non-diverse MPPR
severally liable
of
were
ruling on
because defendants
alleged to
district court's
ruled that
be
jointly and
permissive.
The
patently correct.
See Temple v. Synthes Corp., Ltd., 111 S. Ct. 315, 316 (1990)
___ ______
___________________
(citing to the Advisory Committee
explicitly state
that "a
usual `joint-
and-several'
liability is
merely a
error in
Rodriguez's
permissive party
liability.").
to an
Accordingly,
refusal to
grant
P. 19(b).
B. Dismissal of Rodriguez's Counterclaims and Cross-claim
__________________________________________________________
As a result of Rodriguez's failure to appear at the
scheduled pretrial and settlement
court's orders,
dismissed with
____________________
12. Joinder of MPPR, a Puerto Rico corporation, would have
destroyed the district court's subject matter jurisdiction in
this diversity case.
-1212
prejudice
Rodriguez's
dismissal
was
Rodriguez
claims that
these sanctions
we disagree.
premised
counterclaims and
upon
the
Fed.
R.
cross-claim.
Civ.
district court's
constitutes an abuse of
P.
The
16(f).13
imposition
discretion.
of
Again,
As an
initial matter,
we note that
"[t]he proper
court
16(f)."
be
allowed
great latitude
in
applying
Cir. 1991);
F.2d 15, 16
see also
___ ____
(1st Cir.
Barreto v.
_______
Rule
936 F.2d
Citibank,
_________
of the
orders,
management of a
and,
indeed,
all
orders
governing
the
pain of sanction
____________________
13.
for
unjustifiable
district
for
violation.").
abuse of
discretion.
As
such,
we
review
See
___
v.
is a harsh sanction
Cir. 1990)).
available
merely
Marx v.
____
v. Alegria,
_______
896 F.2d
645, 647
1991)
(1st
to the
to
strong policy
with prejudice
district court
penalize those
whose
sanction, but
in appropriate
conduct may
such a
tempted
F.2d
at
10; Barreto,
_______
those who
deemed to
warrant
to deter
be
cases, not
907 F.2d
at 16.
Conduct
might be
Marx, 929
____
which may
warrant
dismissal
"`disobedience
of
of
court
claim
with
orders,
prejudice
[disregarding]
includes
warnings,
1, 2 (1st
Cir. 1987)).
As
district court
issued two
of
the
November
15, 1991,
pretrial
and
settlement
-1414
conference.
In
warnings to the
addition,
both orders
provided
in the imposition of
explicit
could result
P. 16(f).
conference.
Nor
did he
provide the court with either proper notice that he would not
appear or
a compelling
justification for
his absence.
As
C. Default Judgment
____________________
On February 28,
1992, the
district court
entered
____________________
14. We do note that on November 14, 1991, at 3:22 p.m.,
Rodriguez attempted, via telecopier, to
file with the
___
district court a motion for an extension of time in which to
compromise the controversy.
However, the record indicates
that defendant's motion was not actually received and filed
by the district court until November 15, 1991, at 3:14 p.m.,
after the scheduled 2:30 p.m. conference had already taken
_____
place.
Rodriguez also claims that at the same time he
transmitted his motion, he notified the court that he would
not be attending the conference scheduled for the following
day.
However, even were we to credit this assertion, it
would not provide us with a sufficient basis for determining
that the
district court's
actions were an
abuse of
discretion.
-1515
entry
of default
constitutes
(1) the
district court
because
pursuant
failed
to Fed.
to prove
R.
an abuse
Civ. P.
failed
of discretion
to give
55(b)(2),
its case on
the merits
both
him notice
and (2)
plaintiff
at trial.15
Here
pertinent
part,
Fed.
R. Civ.
P.
55
(b)(2)
. shall
least
the hearing
(Emphasis
55(b)(2)
for
days prior
supplied).
to
By
its very
default
pending and
found a
appear.
Pertinent authority
the Rule.
See
___
party to
be in
terms, therefore,
court
is no motion
has, on
default for
its own
a failure
(notice requirement
Rule
to
such application."
as here, there
where the
motion,
on
at
of Rule
v.
Aakash
______
55(b)(2) does
not apply
___________________
_______
F.2d 1406, 1414 (9th Cir. 1990), cert. denied, 111 S. Ct.
_____ ______
1019 (1991); see also Eisler v. Stritzler, 535 F.2d 148, 153
___ ____ ______
_________
(1st Cir. 1976) (holding that after entry of a default
judgment, a hearing, but not a jury trial, is required to
assess damages).
-1616
(citing Tolliver v.
________
Cir. 1986));
1138,
see also
___ ____
(7th
Worrall, 880
_______
F.2d
Ringgold Corp. v.
______________
(notice requirement
of Rule
failing
to
1141-42 (9th
Cir. 1989)
786 F.2d
61, 65 (2d
55(b)(2)
requirement of Rule
commenced).
with
at a trial
not provide us
default.16
Rodriguez
also argues
that the
entry of
default
against
him was
an
abuse of
discretion because
plaintiff
Defendant's
defendant
establishes
the
defendant's
liability.
See
___
771
____________________
16. Our refusal to apply the notice requirement of Rule
55(b)(2) to this case can hardly be viewed as unfair to
Rodriguez.
Clearly, the purpose of Rule 55(b)(2) is to make
certain that
a defaulted party is on
notice of the
possibility that a default judgment might be entered against
him/her.
Here, Rodriguez admitted in an affidavit to his
awareness "that the court had positioned itself to hold
[Rodriguez] liable by default or otherwise" at the time he
__ _______ __ _________
failed to appear for trial.
Thus, the situation against
which Rule 55(b)(2) guards was not present in this instance.
-1717
having
been
entered, each
of [plaintiff's]
allegations of
as a matter of
475
F.2d
default
(7th
judgment
Cir. 1989)
establishes,
("As
as
a general
a matter
of
rule,
law,
that
the complaint.");
Eisler v. Stritzler,
_________
535 F.2d
148, 153 (1st Cir. 1976) (noting that "[t]he default judgment
on
the well-pleaded
established
district
allegations
in
plaintiff's
defendant's liability.").
court's entry
of
default established
complaint
Thus,
the
Rodriguez's
____________________
17.
We award
double costs
in response to
appellee's well-