USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 94-2227

NYDIA G. RODRIGUEZ, a/k/a

NYDIA G. RODRIGUEZ BRUNO,

Plaintiff, Appellee,

v.

DORAL MORTGAGE CORP.,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

___________________

_________________________

Before

Selya, Cyr and Stahl, Circuit Judges.

______________

_________________________

Radames A. Torruella, with whom Carmencita Velazquez-Marquez

____________________
____________________________
and McConnell Valdes were on brief, for appellant.
________________
Erick Morales-Perez,
____________________

with

whom

Humberto Ramirez
_________________

brief, for appellee.

_________________________

June 23, 1995

was on

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

This appeal

invites

us

to

explore,

and in

turn to

demarcate, the

promontory of federal judicial power.

is a sexual harassment

(Rodriguez)

against

Corporation

(Doral).1

of

1343(a)(4),

former

employer,

rights violation,

see
___

of a

base of the appeal

Rodriguez Bruno

Doral

Premising jurisdiction on

Mortgage

the assertion

28 U.S.C.

1331,

the plaintiff pressed a claim under Title VII of the

Civil Rights Act of 1964, 42 U.S.C.

and hitched

At the

suit brought by Nydia G.

her

federal civil

outer boundaries

to it

a pendent claim

known colloquially as

2000e-17 (1988),

under a Puerto

the

amendments embodied in the Civil Rights Act of 1991, Pub. L.

No.

sections of

After first

Rico statute

holding that

102-166, 105 Stat.

Law 100.2

2000e to

1071 (1991) (codified as amended at scattered

42 U.S.C.), did not

apply to this case

in light of

Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994), the district
________
_______________

court rejected each of the plaintiff's pleaded claims.

nonetheless entered judgment in

Laws

Ann. tit.

29,

The court

her favor based on Law

155-155(l) (Supp.

1992)3

17, P.R.

and

did so

____________________

1Technically,

Rodriguez

several associated

and

individuals

and entities,

Berrios, her immediate supervisor.

is relevant to
only

suit

her parents

Because

Rodriguez

Doral

including

and

Miguel

none of these claims

this appeal, we treat the case

by

sued

as if it involved

(plaintiff-appellee) against

Doral

(defendant-appellant).

2In pertinent

part,

Law 100

forbids, on

penalty of

both

civil and criminal sanctions, adverse employment actions based on

any one of several protected characteristics, including sex.
P.R. Laws Ann. tit. 29,

3In

substance,

Law

employers or their agents.

district court,

See
___

146 (1985).

17

penalizes

sexual

harassment

by

Under its terms as interpreted by the

employers are

held strictly liable

for damages

notwithstanding that the plaintiff had neither pleaded a cause of

action thereunder nor invoked the statute at trial.

Three

court

questions are now before us.

enter judgment for a

plaintiff on a

(1) May a district

cause of action that

was neither pleaded in the complaint nor raised during the course

of trial?

(2) May

unilaterally

a district court prior to the close

introduce

an

unpled

cause

of

action

of trial

into

the

proceedings?

(3) In any event,

assume

supplemental

action

that could

jurisdiction

of action

foundational

before the

federal claim,

in the

We turn then

second

nonfederal

end of the

though

merits?

negative, we

questions in

of

when (a)

in fact introduced

trial, and

originally

(b) the

colorable,

Because we answer the

must vacate the

to choice of remedy, and, after

and third

cause

during trial,

nor the district court

since been repulsed on the

question

over a

have been introduced

neither the plaintiff

the cause

may a district court, on remand,

has

first

judgment below.4

answering both the

the

affirmative, we

the

workplace

remand for

further proceedings.
____________________

arising

out of

perpetrated

by

harassment
a

in

supervisor).

The

(at

statutory

least
language

when

is

inexplicit, however, and the Puerto Rico Supreme Court has handed

down only one

opinion construing Law 17.

See Delgado Zayas v.

___ ______________

Hospital Interamericano de Medicina, 94 J.T.S.

____________________________________
That

149 (P.R. 1994).

opinion does not speak to the question of strict liability,

and we regard Law 17's precise meaning as problematic.

4In
decision.
Doral's

actuality,
While it
favor

the

judgment

below

represents

split

encompasses the district court's rulings

on all

the

pleaded

challenged these rulings and they are

claims, Rodriguez

has

in

not

unaffected by this appeal.

All references herein to the judgment are, therefore,

the

limited to

second portion of the judgment, which comprises the award of

damages to the plaintiff under Law 17.

I.
I.

FACTUAL AND PROCEDURAL HISTORY

FACTUAL AND PROCEDURAL HISTORY

We begin

with the

facts as

district court after a bench trial.

Mortgage Corp., No. 92-2497, slip

_______________

1994) (D.

Ct. Op.).

We

supportably found

by the

See Rodriguez Bruno v. Doral

___ _______________
_____

op. at 1-9

then proceed

(D.P.R. Sept. 19,

to chart

the procedural

history of the litigation.

Doral

hired

Rodriguez

processor and transferred

Rey

branch.

There,

in March

of

1990

her the following January to

she worked

hegemony

of Miguel

Berrios.

multiple

incidents

of

sexual

as

Over a

a receptionist

period of

harassment

loan

its Hato

under

the

several weeks,

occurred,

nonconsensual physical contacts initiated by Berrios.

reported

as a

including

Rodriguez

the harassment to two of Doral's top executives.

These

officials assured her that Berrios would be

transferred, and, as

it turned out, he resigned soon thereafter.

Despite Berrios' departure, Rodriguez filed a complaint

with the Puerto

sexual harassment

environment.

The

case

environment

Rico Department

in consequence

of Labor in

which she

of an unlawfully

charged

hostile work

This grievance ultimately spawned the federal suit.

was tried

to the

bench.

The

judge found

the work

to be "hostile" within the meaning of Title VII, but

also found that

Doral had neither actual nor constructive notice

of the

prior to

problem

Rodriguez'

concluded, therefore, that Doral

Title

VII.

The judge also ruled

internal complaints.

could not be held liable

He

under

that Berrios could not be held

liable because Title VII, as it stood before the 1991 amendments,

did not impose liability on individual harassers.

at 14.

See D. Ct. Op.

___

So ended the plaintiff's federal claims.

The court,

however, did

the ignominy of unmitigated

defeat.

not consign the

plaintiff to

Without passing in

so many

words on the Law 100 claim, the court departed from the pleadings

on its own

initiative and

decided the suit

in the

plaintiff's

favor

by

recourse

to

Law

17.

"complementary

statute

interpreting it

as "provid[ing]

alleged

harasser is

Describing

regarding

sexual

Law

17

harassment,"

for strict liability

a supervisor,"

id. at
___

as

15, the

and

where the

court held

Doral liable to Rodriguez for $100,000 in damages, see id. at 19,

___ ___

and entered judgment accordingly.

II.
II.

Doral now appeals.

THE UNPLEADED CLAIM

THE UNPLEADED CLAIM

We begin our trek through the thicket of controversy by

attempting

judgment

to

ascertain

based

on Law

whether

17 can

the

be

the lower

court's

justified from

necessary

inquiry

entry

of

a procedural

standpoint.

Because

focuses

on

inclusion and

exclusion of claims in a civil action in a federal

district court, the Federal Rules of Civil Procedure govern.

the

See

___

Fed. R.

Civ. P. 1; see
___

also 28 U.S.C.
____

2072(b); see generally

___ _________

Charles A.

Wright, Law of Federal Courts

______________________

The

court's

lower

action

in

respect

62 (5th

to

the

Law

ed. 1994).

17

claim

implicates no fewer than three of these rules, namely, Rule 8(a),

Rule 15(b), and Rule

of

two precepts:

jurisdiction

54(c).

(1) that

We conduct our

the Civil

examination mindful

Rules cannot

conjure up

where none otherwise exists, see Fed. R. Civ. P. 82

___

(admonishing that

extend

. .

the Civil

Rules

the jurisdiction

of

"shall not

be construed

the United

States district

courts"); Wendy C. Perdue, Finley v. United States:

______
_____________

Pendent Jurisdiction,
____________________

76

Va.

L. Rev.

(addressing this limitation), and (2)

Rules,

is

539,

563

to

Unstringing
___________

n.146

that apart from the

(1990)

Civil

"the district courts retain the inherent power to do what

necessary

satisfactory

and

proper

to

conduct judicial

manner," Aoude v.
_____

Mobil Oil Corp.,

_______________

1119 (1st Cir. 1989).

A.
A.

Rule 8(a).
Rule 8(a).
_________

business

in

892 F.2d 1115,

Fed.

contain,

R.

Civ. P.

8(a)(2)

inter alia, "a short

_____ ____

showing that

mandate

of

Despite

the

construed

the pleader

Rule

comprises

that

as to do substantial

that a

and plain statement

is entitled to

8(a)(2)

admonition

requires

"[a]ll

of the claim

relief . .

threshold

pleadings

justice," Fed. R.

complaint

. ."

The

requirement.

shall

be

so

Civ. P. 8(f),

failure to comply with Rule 8(a)(2) may render an unpleaded claim

noncognizable when the plaintiff (or

the court, for that matter)

subsequently teases it out of adduced

the

interests of

unpleaded,

justice,

unlitigated

facts.

for instance,

claim

in

to

It would not serve

redeem a

circumstances

that

totally

threaten

significant prejudice to a defendant.

The

bottom line is

simply this:

while courts should

construe pleadings generously, paying more attention to substance

than

to

form,

defendant's

they

must

always

inalienable right to

exhibit

awareness

know in advance

of

the

the nature of

the

cause

of action

being asserted

Theatres, Inc. v. Westover,

______________
________

Gibson, 355 U.S. 41, 47

against

him.

359 U.S. 500, 506 (1959);

See Beacon
___ ______

Conley v.
______

(1957); Campana v. Eller, 755 F.2d

212,

______

_______

_____

215 (1st Cir. 1985); Shelter Mut. Ins. Co. v. Public Water Supply
_____________________
___________________

Dist. No. 7, 747 F.2d 1195, 1197 (8th Cir. 1984).

____________

purpose of pleadings under

is

to

afford

asserted

the Federal Rules of Civil

the opposing

party

fair

notice

Procedure

of the

claims

against him and the grounds on which those claims rest.

See Torres Ramirez

___ ______________

Cir.

A fundamental

1990).

v. Bermudez Garcia, 898 F.2d

________________

Honoring this

the merits

purpose ensures that

on

facts."

Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).

_____
_____

case at

claim.

an

hand, the

plead

a Law 17

Her

claim

when filed; she did

adequate development

of

plaintiff wholly failed

complaint did not

not add one

(1st

cases will "be

decided

In the

after

224, 227

the

to

delineate such a

by formal amendment; she

did not mention the statute in

not

explicitly refer to

short,

this is

theory has

not a

her pretrial filings; and she did

it at any

case in

point during the

which

a properly

been obscured by the parties'

theories, cf. Campana,

___ _______

which a particular

755 F.2d at

trial.

In

pleaded legal

concentration on other

215, but, rather, a

legal theory was never so much

case in

as a gleam in

the pleader's eye.

It

is true, as

the district court

pretrial order referred at

very property with which the

D. Ct. Op. at

15.

observed, that the

one point to "strict liability,"

the

district court imbued Law 17.

See
___

Whatever the potential

legal significance of

this

fleeting mention,

satisfy

8(a)(2).

surely

assert a

one out

the

it

"short and

is not

plain

sufficiently informative

statement"

requirement of

See, e.g., Campana, 755 F.2d at 215.

___ ____ _______

did not give Doral

fair notice that

claim premised on Law

from beneath his

Rule

By like token, it

the plaintiff would

17 or that the

robe, like a rabbit

to

judge would pull

from a magician's

hat.

We

will not loiter.

Though we fully appreciate that a

complaint may be constructively amended

e.g., Toth v.
____ ____

denied,
______

USX Corp., 883 F.2d

_________

493 U.S.

plaintiffs may

994 (1989),

as a case proceeds, see,

___

1297, 1298 (7th

this principle

leave defendants to

Cir.), cert.
_____

cannot mean

forage in forests

that

of facts,

searching at their peril

for every legal theory that a court may

some day find lurking in

the penumbra of the record.

Civil

Under the

Rules, notice of a claim is a defendant's entitlement, not

defendant's

burden.

The

truth-seeking

function

of

our

adversarial system of justice is disserved when the boundaries of

suit

remain ill-defined

and

litigants

are exposed

to

the

vicissitudes of trial by ambush.

At a bare minimum, even in this age of notice pleading,

a defendant must be

afforded both adequate notice of

asserted

against him

defense.

The district court's revisionist treatment

deprived Doral of these

court's

purported

and a

meaningful opportunity

perquisites.

adjudication

of

to

the

Law 17

mount a

of the case

Thus, unless the

salvaged on some other basis, it must be set aside.

any claims

claim

district

can

be

B.
B.

To this end, we

R.

Civ.

P.

unpleaded

15(b).

claims

parties.5

next train the lens of inquiry on Fed.

That

"by

Because

express consent

Rule 15(b).
Rule 15(b).
__________

even

rule

express

the

permits

or

the consideration

implied

record here

consent"

discloses

no

of

of

the

whisper of

the plaintiff concedes its absence

our

inquiry narrows to the possibility of implied consent.

For

litigation

generic

purposes of

of an

Rule

unpleaded

claim may

sets of circumstances.

introduced

sufficiently

memorandum

outside

pointed

and

the

15(b), implied

from one

the

of

two

First, the claim may actually be

complaint

interrogatory

then treated

arise

consent to

say,

answer

by

or

by the opposing

in

means

of

pretrial

party as

having

been

pleaded, either

claim or

through his

Mfg., Inc. v.
__________

Cir.)

(as

through

his effective

silent acquiescence.

engagement of

See, e.g.,
___ ____

Fairhaven Textile Corp., 790 F.2d

________________________

amended per

curiam)

presentation of claims beyond

("As

general principle

raised by the pleadings

express or

parties,

they

implied consent of

shall

be

treated

respects as

if they

pleadings.

Such amendment of

as may be necessary

had been raised

in

are
the
all

in the

the pleadings

to cause them to conform

to the evidence and to raise these issues may

be made upon motion of any party at any time,
even after
does not

judgment; but failure so to amend

affect the

these issues. . . .

Fed. R. Civ. P. 15(b).

(1st

the

the complaint without objection is

5The rule provides in pertinent part:

tried by

Action
______

164, 167

____________________

When issues not

the

result of the

trial of

considered

an

informal

amendment of

the

complaint."),

cert.
_____

denied, 479 U.S. 854

______

(1986); see also Lynch v. Dukakis, 719 F.2d

___ ____ _____
_______

504,

1983).

508 (1st

Cir.

Second,

and more

conventionally,

"[c]onsent to the trial of an issue may be implied if, during the

trial, a party acquiesces in

the introduction of evidence

is relevant only to that issue."

which

DCPB, Inc. v. City of Lebanon,

__________

957

F.2d 913, 917 (1st Cir. 1992);

956 F.2d

364, 375

Lynch, 719
_____

(1st Cir.

F.2d at 508.

In

_______________

accord Law v. Ernst & Young,

______ ___
_____________

1992); Campana,
_______

755 F.2d

at 215;

other words, "[t]he introduction of

evidence directly relevant to a pleaded issue cannot be the basis

for

a founded claim that the opposing party should have realized

that a new

issue was infiltrating the case."

917; accord Galindo v.

______ _______

1986)

("It is

suggested by

DCPB, 957 F.2d at

____

Stoody Co., 793 F.2d 1502, 1513 (9th Cir.

__________

not enough

that an

issue may

be `inferentially

incidental evidence in the record'; the record must

indicate that the parties understood that

the evidence was aimed

at an unpleaded issue.") (quoting Cole v. Layrite Prods. Co., 439

____
__________________

F.2d 958, 961 (9th Cir. 1971)).

Here,

first

avenue to

no such

constructive

implied consent is

reference to "strict liability"

amendment occurred.

a dead

end:

The

the fleeting

contained in the pretrial order,

see supra pp. 7-8, cannot by any stretch of even the most fertile
___ _____

imagination support such a finding.

v.

See Grand Light & Supply Co.

___ ________________________

Honeywell, Inc., 771 F.2d 672, 680 (2d Cir. 1985) (cautioning
_______________

that "[t]he

pleadings

purpose of Rule

to introduce

15(b) is

issues

. . .

not to extend

inferentially suggested").

10

the

And

apart from that one passing allusion, there is nothing to suggest

that a Law 17 claim was insinuated at trial, let alone engaged or

embraced by Doral.

implied

consent

The

second avenue that

is equally

unpassable

plaintiff did not introduce any

to a claim under Law

the pleaded

17.

sometimes leads

in this

to

setting:

the

evidence that was relevant

only
____

Nor is this surprising; when,

as now,

and unpleaded claims are of much the same genre, the

likelihood of differential discernment on the defendant's part is

relatively low.

In

fine, the

absence

of express

or implied

consent

renders

it impossible

to fit

the district

within the confines of Rule 15(b).

court's freelancing

Though we appreciate that the

root purpose of the rule is to combat "the tyranny of formalism,"

Rosden v. Leuthold, 274 F.2d 747, 750 (D.C. Cir. 1960), it cannot
______
________

be so liberally construed as to empty Rule 8(a) of all meaning.6

C.
C.

The

plaintiff's

district court's

Rule 54(c).
Rule 54(c).
__________

last

action is

justificatory

Fed. R.

basis

Civ. P. 54(c).

for

The

the

rule,

which we have explicated on earlier occasions, see, e.g., Dopp v.

___ ____ ____

HTP Corp., 947 F.2d 506, 517-18 (1st Cir. 1991); United States v.
_________
_____________

____________________

6We

note that,

even if

we could

detect some

indicium of

consent,

access to

the

unguent of

blocked on another ground.

15(b) is
957

that the opposing party

15(b) might

well

on the operation of

not be prejudiced.

be

Rule

See DCPB,
___ ____

F.2d at 917 ("It is axiomatic that amendments which unfairly

prejudice a litigant should

no

One limit

Rule

advance warning

opportunity
unfair

of

to defend

prejudice looms

the

not be granted.").
Law

against

17
it.

large.

See
___

claim
Hence,
id.;
___

and

Here,

Doral had

no

meaningful

the likelihood
see also
___ ____

Cioffe
______

of

v.

Morris, 676 F.2d 539, 542 (11th Cir. 1982).

______

11

Marin, 651 F.2d

_____

24, 31

(1st Cir. 1981),

provides, in

relevant

part,

that "every final judgment shall grant the relief to which

the party in whose favor it

party has

not demanded

According to the

is rendered is entitled, even if the

such relief

plaintiff, the

granting her the relief

in the party's

judgment is simply

pleadings."

a means

which she deserved, even though

of

she had

not,inthelanguageoftherule,"demandedsuchreliefin [her]pleadings."

This thesis is hollow at its core.

no

right

to relief

premised on

litigated before, the trier."

re Rivinius, Inc., 977

_________________

issues

"Rule 54(c) creates

not presented

Dopp, 947 F.2d at 518; see also In

____
___ ____ __

F.2d 1171, 1177 (7th Cir.

1992) (holding

that "Rule 54(c) does not allow [a party] to obtain relief

upon

a .

. . theory

that was

to, and

not properly

based

raised at trial");

Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 920,
________________
__________________

923-24 (3d

Cir. 1984) (explaining that the rule permits relief predicated on

a particular theory "only

and

litigated by

the

proceedings"); Cioffe
______

1982)

(similar).

relief does

because of

parties at

v. Morris,
______

Thus,

not include

failures in

James W. Moore et

if that theory was

some

stage or

676 F.2d

Rule 54(c)'s

relief which

the pleadings

squarely presented

539, 541

concern for

a plaintiff

or in the

al., Moore's Federal Practice

________________________

1985).

Since Rodriguez

settled

interpretation

other of

Rule

54(c),

we

invitation to invoke the rule to her advantage.

D.
D.

Recapitulation.
Recapitulation.
______________

must

(11th Cir.

appropriate

has foregone

proof.

54.62

offers us no principled way

of

the

See 6
___

(2d ed.

around this

decline

her

12

We

consent,

on

nor

summarize succinctly.

absence of

mutual

a district court may not enter judgment for a plaintiff

a cause of

action that was neither

raised during

the

court's resort to Law

court's

In the

maneuver

course of

pleaded in the complaint

trial.

Here,

17 contravenes this tenet.

cannot be

justified

under

the

district

Moreover, the

the Civil

Rules.

Specifically, the plaintiff did

not plead a Law 17

claim within

the purview of Rule 8(a); the nonexistence of consent (express or

implied)

negates

any

suggestion

that

the

pleadings

constructively amended under Rule 15(b) to include such a

and Rule 54(c)

does not overcome these

on

an unpleaded

theory of

claim;

deficiencies because its

safety net cannot be stretched so widely as to grant a

relief

were

which

plaintiff

the defendant

had no

hold that no claim under

Law 17

notice.

For these reasons, we

was

ever

properly

before

judgment cannot stand.

the

district court,

and

A federal district court may

that

the

not, of its

own volition, after the parties have rested, recast the complaint

and,

without notice, predicate its decision on a theory that was

neither pleaded nor tried.

935

F.2d

jurisdiction

507,

510-11

See Greene v. Town of Blooming Grove,

___ ______
______________________

(2d

over pendent

discretely raised during the

1005

(1991); Ruiz
____

(rejecting concept

Cir.)

claim

(reversing

that was

exercise

neither pleaded

of

nor

litigation), cert. denied, 502 U.S.

_____ ______

v. Estelle,
_______

679 F.2d

that a court may,

1115, 1157

after trial, spontaneously

consider unpleaded state-law claims through the simple

13

(5th Cir.)

expedient

of reshaping

the plaintiffs'

suit), modified on
________ __

other grounds,
_____ _______

688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983);
_____ ______

Cioffe, 676 F.2d at 541-43 (to like effect).

______

III.
III.

THE NEXT STEP

THE NEXT STEP

Setting

way.

We

must

beseeches

us

aside the judgment

now

to direct

Because the plaintiff

claims,

we

consider the

charting our

remand

is an

next

the entry

of a

step.

it is

within

course, however, we

available alternative,

part of the

The

defendant

take-nothing judgment.

lost on the merits of each

recognize that

Before

takes us only

of her pleaded

our power

pause to

and, if

to oblige.

mull whether

so, whether

that

alternative is preferable.

Undoubtedly,

a remand under the conditions that obtain

here presents potential problems.

of

the

district

court's

unpleaded claim into

For one thing, the

unilateral

effort

to

propriety

insinuate

the case is open to question.

an

For another

thing, the foundational federal claims are now out of the picture

the plaintiff never cross-appealed from the adverse judgment on

those

claims,

see
___

supra note
_____

continued jurisdiction over

even

if

if free-standing,

none

discretionary

of

these

exercise of

and

the district

a supplemental claim

under Puerto Rico law may seem

itself,

suspect.

would now

factors

court's

arising solely

Third, the Law 17 claim

be time-barred.

absolutely

Finally,

precludes

remandatory jurisdiction,

the

remand may

not be the best available alternative.

In the pages that follow,

we address these concerns and then settle upon our next step.

14

A.
A.

The Court's Power.

The Court's Power.
_________________

Since the question of whether

power

up

a district court has the

to introduce an unpleaded claim on its own initiative even

to (or

beyond) the close

of the

trial and

the question of

whether a district court has the

power to introduce such a claim

on remand are closely related, we consider them in the ensemble.

1.
1.

adversarial

vigorous

adroit

In General.
In General.
___________

The

system of justice

advocacy of

supervision

proper

depends not only

their positions

of

the

functioning

but also

litigation.

The

many possible

illustrations, a district

the authority to recommend

the

Nims,
____

complaint to escape

to a plaintiff how she

dismissal.

See, e.g.,
___ ____

755 F.2d 810, 813 (11th Cir. 1985).

court, exercising

its powers under Fed.

our

on the parties'

on the

judge's

sphere

of case

management extends to the definition of legal issues.

one of

of

To mention

court possesses

might reshape

Friedlander v.
___________

Similarly, a district

R. Civ. P. 15(b),

in a

proper case, "may amend the pleadings merely by entering findings

on

the

unpleaded

(collecting

cases),

issues,"

Galindo,
_______

even though

793

neither

F.2d

party

at

1513

has essayed

n.8

formal amendment.

We think it follows that a district court has the power

to introduce a claim (or, rather, to

prompt a party to introduce

a claim) at any time during the course of litigation.

does not

sides

vanish at

have

(recognizing

rested.

the tail

See,
___

end of a

e.g.,
____

court's authority

trial, even

Campana,
_______

to permit

15

755

This power

though both

F.2d

amendment as

at

215

late as

during jury

deliberation).

This conclusion does

either

letter

spirit

the

Although that

rule plainly

id. (authorizing one

___

within

or the

of

Fed. R.

not clash with

Civ.

favors early amendments,

revision "as

a matter of

P. 15(a).

see, e.g.,
___ ____

course" if

made

certain time constraints), it sets no outer time limit on

amendments; the drafters chose instead to leave the matter within

the discretion of the

nisi prius court.

Alcan Aluminio do Brasil, S.A., 857

______________________________

See
___

Benitez-Allende v.
_______________

F.2d 26, 36 (1st Cir. 1988),

cert.
_____

denied, 489
______

U.S. 1018 (1989);

see also
___ ____

Fed. R.

Civ. P.

15(a)

(providing that leave to amend "shall be freely given when

justice so requires").

As this discussion indicates (and as Fed. R. Civ. P. 15

and

28 U.S.C.

properly

have

1367 confirm, see

___

called

attention

unpleaded (but related) claim

infra), the court below could

_____

to

the

prospect

at any time as long

of

new,

as it adopted

appropriate measures to safeguard against unfair prejudice.

2.
2.

now

somewhat

On Remand.
On Remand.
_________

different.

district court, even

introduce

Of course, the posture of the

Doral

argues

if it originally

or entertain

would not still possess that

remand,

enjoyed the authority

new, unpleaded

power.

that, on

case is

We do

(but related)

not agree.

the

to

claim,

Since

new,

unpleaded

during the

(but related)

trial, we

asserting such a claim

see no reason

See
___

could

have been

to constrain

asserted

a party

on remand, or, correspondingly, to

the district court's discretion

claim.

claim

Benitez-Allende,
_______________

in terms of entertaining

857

F.2d

at

36;

from

limit

such a

Duckworth
_________

v.

16

Franzen,

780 F.2d 645, 656-57 (7th Cir. 1985), cert. denied, 479

_______

U.S.

_____ ______

816 (1986).

We hold, therefore, that, apart from incipient

jurisdictional problems, a district court, on remand, retains its

discretionary

authority

to

entertain

new,

unpleaded

(but

related) claim.7

B.
B.

Having

Supplemental Jurisdiction.
Supplemental Jurisdiction.
_________________________

traced

discretionary power

claim,

both at

the

contours of

to entertain a new,

trial

and

on

remand,

the

district court's

unpleaded (but related)

and

finding

that

the

yet

plaintiff's Law 17

claim fits

into this category,

we must

determine

the

below

supplemental

whether

jurisdiction

over

foundational

federal

court

such

claim

claim

is

on

now

can exercise

remand

ancient

even

though

history.

the

After

carefully

considering

the

conundrum,

we

conclude

that

the

exercise of supplemental jurisdiction would be proper.8

1.
1.

In General.
In General.
__________

The controlling statute, 28

U.S.C.

1367(a), states in relevant part:

____________________

7The
have
new

fact that the statute of limitations for the claim may

lapsed does not present an insurmountable obstacle.

claim arises out

of the same nucleus

If the

of operative fact, it

will ordinarily relate back to the date of the institution of the

suit.

See Fed.
___

R. Civ. P. 15(c); see

___

also Benitez-Allende, 857

____ _______________

F.2d at 36; Duckworth, 780 F.2d at 656-57.

_________

8"Supplemental

jurisdiction"

is the

currently fashionable

term, embraced by Congress in drafting 28 U.S.C.

blankets

both "pendent

"ancillary

jurisdiction"

jurisdiction."

See
___

and

Wright,

1367, that now

its kissing
supra,
_____

at

cousin,

9, 19

(discussing ancillary and pendent jurisdiction, respectively, and

how those
1367).

doctrines have been

Balancing the past

of tradition

codified and modified

and the present

with the virtue of

progress

by section

melding the
we opt

wisdom

for a middle

course and use the terms "supplemental jurisdiction" and "pendent

jurisdiction" interchangeably.

17

[I]n any
courts

civil action of which

have

district

original

courts

so

related

to claims

such

original

part

of the same

Article

III

jurisdiction,

shall

jurisdiction over all

have

in the

case or

Constitution. . . .

the

supplemental

other claims that

jurisdiction

of

the district

the

are

action within
that they

form

controversy under
United

States

In enacting

section

1367,

Congress

essentially

codified

rationale articulated in United Mine Workers v. Gibbs,

____________________
_____

715

(1966).

See Edmondson & Gallagher v.

___ ______________________

the

383 U.S.

Alban Towers Tenants

____________________

Ass'n, 48 F.3d 1260, 1266 (D.C. Cir. 1995); Borough of W. Mifflin

_____
_____________________

v.

Lancaster, 45
_________

Elizabeth

F.3d 780,

Delagardelle,

788 (3d

Note,

Cir. 1995);

Defining the
Parameters of
______________________________

Supplemental Jurisdiction After 28 U.S.C.

1367,
__________________________________________________

Rev.

391

(1994).

jurisdiction exists

claim

The

Gibbs
_____

see generally
___ _________

Court

instructed

43 Drake

that

L.

pendent

when "the relationship between [the federal]

and the state claim permits the conclusion that the entire

action before the court comprises but one constitutional `case.'"

Gibbs,
_____

383

U.S.

at 725.9

In

particular,

"[t]he state

and

federal claims

must derive

fact."

Thus, "if,

Id.
___

federal or

[she]

from a

considered

state character, a

would

ordinarily

common nucleus

of operative

without regard

to

plaintiff's claims are

be expected

to

try

them

their

such that

all in

one

judicial proceeding, then, assuming substantiality of the federal

issues,

there is

power in

federal courts

to hear

the whole."

____________________

9The references
and in

the statute, see 28

___

construed
"the

to "state" law

literally.

U.S.C.

or "state" claims

in Gibbs
_____

1367(c)-(d), are

not to be

Section 1367(e)

expressly provides

that

term `State' includes . . . the Commonwealth of Puerto Rico

. . . ."

18

Id.;
___

see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349

___ ____ _____________________
______

(1988); Vera-Lozano v. International Broadcasting, 50 F.3d 67, 70

___________
__________________________

(1st Cir. 1995); Brown v. Trustees of Boston Univ., 891 F.2d 337,
_____
________________________

356

(1st Cir. 1989), cert. denied, 496 U.S. 937 (1990); Ortiz v.
_____ ______
_____

United States, 595 F.2d 65, 68-69 (1st Cir. 1979).

_____________

The

claim

and

relationship between

her inchoate

claim under

the

Law

plaintiff's Title

17 matches

Court's description in all significant respects.

VII

the Gibbs
_____

Both claims are

civil

rights claims;

facts; and,

as a

both

derive from

consequence,

single

both would

reservoir of

common

ordinarily be

heard

See, e.g.,
___ ____

Andrea

together

in a

consolidated trial.

Catania,

State Employment Discrimination Remedies and Pendent

_______________________________________________________

Jurisdiction Under Title VII:

____________________________

U. L. Rev. 777, 793 (1983).

argues

for

an opposite

Access to Federal Courts,

________________________

32 Am.

Despite this apparent fit, appellant

result,

contending

that Congress,

in

enacting Title VII, forbade jurisdiction over supplemental claims

by implication.

authority

in

Although there

favor

of

this

appears to be

position,

see,
___

a smattering

e.g.,
____

of

Executive
_________

Software N. Am., Inc. v. United States Dist. Court for the Cent.
_____________________
________________________________________

Dist. of Cal.,
_____________

24 F.3d 1545,

1554 n.6 (9th

Cir. 1994)

(noting

cases so holding); 13B Charles A. Wright et al., Federal Practice

________________

and Procedure
_____________

3567.1, at 24 & nn.30.1-30.2 (Supp. 1995) (same),

we reject it outright.

In

appellant's

our

judgment,

hypothesis.

section

Whatever may

19

1367

itself

have been

disproves

the situation

before the

it may

implied

1004,

enactment of the supplemental

have been

possible then to

jurisdiction statute10

detect scattered signs

of

negation, see Kitchen v. Chippewa Valley Sch., 825 F.2d

___ _______
_____________________

1010 (6th Cir. 1987)

(citing district court cases finding

implied negation of pendent jurisdiction under Title VII prior to

the

passage of

28 U.S.C.

1367)

section

1367 specifically

authorizes supplemental jurisdiction "[e]xcept . . . as expressly

provided

otherwise by

1367(a).

Since the

or

commentator

negates pendent

on

which

the

Federal statute

. .

. ."

28

statutory text is unambiguous, and

ever has

maintained

that

Title VII

jurisdiction, there is simply

statute's

broad

U.S.C.

no court

expressly
_________

no credible basis

jurisdictional

grant

can

be

shortstopped in the Title VII context.

One additional point is worth

making.

While habit

or

practice is by no means the barometer of jurisdictional power, we

find

it

telling that

we have

not heretofore

encountered, let

alone embraced, the radical hypothesis advanced by the appellant.

To the precise

contrary, we have regularly

entertained suits in

____________________

10Even

prior to the enactment of section 1367, the case for

implied negation was asthenic.

Sch. Dist. No. 22,
_________________
negation

See, e.g., Thompkins v. Stuttgart

___ ____ _________
_________

787 F.2d 439, 442 (8th

argument and

could have exercised

holding that

Cir. 1986) (rejecting

a district

court "properly

jurisdiction over a state claim

pendent to

the . . . Title VII claim"); Catania, supra, at 796 ("Neither the

_____
language

nor

congressional
jurisdiction

legislative
intent

to

history

of

negate

the

title

VII

exercise

reveals
of

any

pendent

over related nonfederal claims asserted against the

title VII defendant.");

Richard D. Freer, Compounding Confusion

______________________

and Hampering Diversity: Life After Finley and the Supplemental

_________________________________________________________________

Jurisdiction Statute,
____________________
that

"[m]ost

40 Emory

courts that

L.J. 445, 462

bothered to

(1991) (remarking

mention

the need

for a

statutory basis . . . appear to have upheld jurisdiction").

20

which plaintiffs have joined Title VII claims with pendent state-

law

claims

and

we have

passage of section 1367.

Gallagher
_________

done so

both

before and

See, e.g., Vera-Lozano,

___ ____ ___________

v. Wilton Enters., Inc.,

____________________

962 F.2d 120,

after the

50 F.3d at 70;

121 (1st Cir.

1992) (per curiam); Conway v. Electro Switch Corp., 825 F.2d 593,
______
____________________

595 (1st Cir. 1987).

To

pursuant

recapitulate, a

to

state

supplemental

falls

jurisdiction when,

jurisdiction derives

arising out of

possessed

law

sexual

from the

the same facts.

the raw

power

harassment

within

as

the

now,

assertion

Thus,

to exercise

claim

brought

district

court's

the court's

of a

original

Title VII

the court below

claim

plainly

supplemental jurisdiction

over a claim under Puerto Rico Law 17, had one been asserted.

2.
2.

On Remand.
On Remand.
__________

Having determined

that supplemental

jurisdiction would have attached had a Law 17 claim been advanced

ab initio,
__ ______

we must

further determine whether

such jurisdiction

remains available on remand, given that the district court has by

now slain the plaintiff's Title

on controlling

would

be

VII claim on the merits.

law, we conclude

proper

despite

that supplemental

the

interment

of

Based

jurisdiction

the

plaintiff's

foundational federal cause of action.

As a general principle,

the unfavorable disposition of

a plaintiff's federal claims at the early stages of a suit,

before

without

e.g.,
____

the commencement

prejudice of

Gibbs, 383
_____

U.S.

of

trial, will

any supplemental

at 726

("[I]f

21

trigger the

dismissal

state-law claims.

the federal

well

claims

See,
___

are

dismissed

before trial,

dismissed as well."); Martinez

________

the

state

claims

should

v. Colon, ___ F.3d ___,

_____

be

___ (1st

Cir. 1995) [No. 94-2138, slip op. at 24] (affirming the dismissal

without

prejudice

determined

question

"far in advance

existed").

of judicial power.

which all

balance

of pendent

when

of trial that

But this praxis

the district

court

no legitimate federal

is not compelled by a lack

It signifies only that, "in the usual case in

federal law

of

claims

factors

claims are eliminated

to

be

considered

before trial,

under

the

the

pendent

jurisdiction

and comity

doctrine

judicial economy, convenience, fairness,

will point toward declining to exercise jurisdiction

over the remaining state-law claims."

U.S. at 350 n.7.

In an appropriate

Carnegie-Mellon Univ., 484

_____________________

situation, a federal

court

may retain jurisdiction over state-law claims notwithstanding the

early demise

Taylor
______

of all

foundational federal

claims.

v. First of Am. Bank-Wayne, 973 F.2d

________________________

Cir. 1992).

Thus, as

long as the plaintiff's

See,
___

e.g.,
____

1284, 1287-88 (6th

federal claim is

substantial, the mere fact that it ultimately fails on the merits

does not, by itself, require that all pendent state-law claims be

jettisoned.

See, e.g., Duckworth,

___ ____ _________

780 F.2d at 656-57; Warehouse

_________

Groceries Mgt., Inc. v. Sav-U-Warehouse Groceries, Inc., 624 F.2d

____________________
_______________________________

655, 658-59

(5th Cir. 1980).

In other words, a

court need not

always throw out the bath water with the baby.

To be sure,

in such

the exercise of supplemental

circumstances is

the district

wholly discretionary.

court, in reaching

jurisdiction

And, moreover,

its discretionary determination

22

on the jurisdictional question, will have to assess the

totality

of

the attendant circumstances.

have its own distinctive

list of important

illustrate

the

appropriately

enter

Instead, we cite

variety

into

of

separate suit in

evaluated

when

jurisdiction.

state court,

deciding

whether

compose a

two examples

considerations

the calculus.

statute of limitations on a pendent

of a

is bound to

profile, we are reluctant to

elements.

wide

Because each case

The

that

running

to

may

of the

claim, precluding the filing

is a salient

to

retain

factor to

be

supplemental

See, e.g., Wright v. Associated Ins. Cos., 29 F.3d

___ ____ ______
____________________

1244, 1251 (7th Cir.

(1st Cir. 1991).

1994); Newman v. Burgin, 930 F.2d

______
______

Another factor

955, 963

to be weighed is the clarity of

the law that governs a pendent claim, for a federal

wise to forgo the exercise of supplemental

court may be

jurisdiction when the

state law

scope

and

that undergirds

application.

the nonfederal

claim

See,
___

U.S.C.

e.g., 28
____

is of

dubious

1367(c)(1)

(authorizing district courts to "decline to exercise supplemental

jurisdiction over a claim . . . if . . . the claim raises a novel

or

complex issue

of State

law"); see
___

also Moor
____ ____

v. County of
__________

Alameda, 411 U.S. 693, 716 (1973); Gibbs, 383 U.S. at 726 & n.15.
_______
_____

We will not attempt to single out all the elements that

could potentially tip

district

the

court's mill.

obvious:

ultimately

brought.

the balance here.

that

succumbed

It

suffices for our

although the

on

That is grist for

the

Consequently, the

purposes to remark

plaintiff's

merits,

it

the

was

Title VII

colorable

district court's power

claim

when

to exercise

23

discretionary supplemental

jurisdiction over

a putative

Law 17

claim, extant at the time of trial, will remain intact on remand.

C.
C.

To

proposition,

not

this point,

Charting a Course.
Charting a Course.
_________________

we have

held (1)

supplemental jurisdiction over

precluded in Title VII actions;

that, as

a general

state-law claims is

(2) that, in this case, had

proper

procedures

appropriately have

been

employed,

exercised

claim brought pursuant

the

district

court

supplemental jurisdiction

to Puerto Rico

Law 17; and (3)

could

over

that the

district court remains empowered, in its discretion, to entertain

Law 17 claim

on remand.

This means, of

course, that remand

ranks as a viable option from our standpoint.

We

also

believe that remand is not only a viable option but

the best available

course.

In the

first place,

a hoary

policy of the law favors the disposition of claims on the merits.

See,
___

Inc.,
____

e.g., HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas,

____ _________________________
________________________

847

F.2d 908,

917 (1st

Cir.

1988) (discussing

need to

consider "the policy of the law favoring the disposition of cases

on the merits").

In the second place, considerations of fairness

counsel in favor of a remand as opposed to a disposition by fiat.

After all, a trial is a search for the truth, not merely a battle

of wits between

important

nature

jousting attorneys.

Third

and perhaps

most

our determination rests upon a close analysis of the

of the

decisionmaking that

a remand

would entail.

We

explain briefly.

The multifaceted

decision about whether

24

to permit the

plaintiff

to

supplemental

proffer a

jurisdiction

judicial discretion.

otherwise

Law 17

over

court

seasonably advanced a Law

the

to exercise

heartland

of

neither pleaded nor

17 claim, the

court may in

the case concluded and enter

a take-

In the alternative, the

may in its discretion choose to reopen the proceedings and

plaintiff to move, under

leave to amend

If that is

motion

lies in

judgment on the pleaded claims.

invite the

series

it

and whether

Because the plaintiff

its discretion simply deem

nothing

claim

her complaint in order to assert

done, the court

(and the parties)

of judgment calls.

necessitates

discretion.11

Fed. R. Civ. P.

See
___

15(a), for

a Law 17 claim.

will then face

For example, adjudicating the Rule 15

further

Coyne v.
_____

exercise

of

City of Somerville,
__________________

the

court's

972 F.2d

440,

446 (1st Cir. 1992);

F.2d

49, 59

determine

another

(1st

Cir. 1990).

whether

decision

Correa-Martinez v. Arrillaga-Belendez,
_______________
__________________

it will

that is

Gibbs, 383 U.S. at 726

_____

a doctrine of

The court

exercise

largely

will

903

also have

to

supplemental jurisdiction,

discretionary.

See,
___

e.g.,
____

(explaining that pendent jurisdiction "is

discretion, not of

plaintiff's right"); see

___

also
____

____________________

11We doubt that the

this bridge,
motion.

district court, if it decides

to cross

will have an easy time in passing upon a Rule 15(a)

Although

granting leave to

the rule evinces a

amend, see
___

definite bias in favor

Jamieson v. Shaw,
________
____

772 F.2d

of

1205,

1208 (5th Cir. 1985), it frowns upon undue delay in the amendment

of pleadings, particularly if no legitimate justification for the

delay is forthcoming, see,
___
Garrity Oil Co., 884
_______________

e.g., Quaker State Oil Ref. Corp. v.

____ ____________________________

F.2d 1510, 1517-18 (1st Cir.

1989); United
______

States Inv. & Dev. Corp. v.

_________________________
1986).

A host

compound the

of other

Cruz, 780 F.2d

____

factors also may

decisionmaker's difficulties.

166, 168 (1st

be relevant
See,
___

Cir.

and may

e.g., Foman v.
____ _____

Davis, 371 U.S. 178, 182 (1962) (listing several considerations).

_____

25

Newman, 930 F.2d at

______

or

withholding of

963 (reviewing factors pertinent to

supplemental jurisdiction);

cf. 28
___

the use

U.S.C.

1367(c)(3) (expressly authorizing a district court to decline the

exercise of supplemental jurisdiction

when it "has dismissed all

claims over which it has original jurisdiction").

Given the critical role

that

must be

equipped

case

made, we think

remarked

that the district

to take the laboring

should proceed

before,

(and if

"[t]he

of discretion in the decisions

oar and to

so, on

very

court is better

determine whether the

what terms).

nature

of

As

we have

trial

judge's

interactive role assures an intimate familiarity with the nuances

of

ongoing litigation

handicapped by the

to match."

Here,

a familiarity

that appellate

judges,

sterility of an impassive record, cannot hope

Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st Cir. 1994).

____
________

choosing

not

to

remand

would

effectively

ignore

the

district court's special competence in the realm of discretionary

decisionmaking.

the

trier in

Because

we can discern no basis

so peremptory

a manner,

for displacing

we conclude

that remand

represents the most appropriate remedy in this instance.

IV.
IV.

CONCLUSION
CONCLUSION

We

courts

to

need go no further.

entertain

illimitable; it

constrained by an

See
___

U.S.

must,

The authority

grievances

in all

is

neither

instances,

of the federal

autopoetic

be traceable

antecedent constitutional or statutory

generally U.S. Const.

_________

art. III,

(3 How.) 236, 245 (1845).

1-2;

to

nor

and

grant.

Cary v. Curtis, 44
____
______

Here, because the record reveals

26

no such mode of

empowerment

the district court's

award rested

on a claim that was never properly introduced into the case

the

judgment entered below cannot stand.

Nonetheless,

the

power to entertain

the district

a properly presented

Rico Law 17 even at this late date.

more considered

remand,

close,12

the trial

or

it

court continues

appraisal of this

court may

may elect,

its

claim under Puerto

Hence, we remit the case for

aspect of the

simply bring

in

to possess

matter.

the litigation

discretion,

to allow

On

to a

the

plaintiff the opportunity to present and to develop such a claim,

subject to any

R. Civ.

latter

constraints imposed by the

P. 15 and

1367.

route, it must concomitantly

provided adequate

generally

1113

28 U.S.C.

discovery and

obtains at trial."

(1st Cir.

be interpreted

If the

court pursues the

ensure that the parties are

"the standard prophylaxis

Lussier v. Runyon,
_______
______

1995), petition
________

1995) (No. 94-1979).

jurisprudence of Fed.

for cert.
___ _____

that

50 F.3d 1103,

filed (U.S.
_____

June 5,

Nothing we have said in this opinion should

as an

effort to

suggest a result

to the

lower

court.

____________________

12Should

the

district court

opt,

in

its discretion,

to

follow this course and deny leave to amend, it may further choose

to condition

that order

on the

defendant's stipulation

raise a statute-of-limitations defense

to

press a Law 17 claim in a

Okaloosa Cty., 5
______________

F.3d 1431,

considering dismissal of pendent claims

limitations

has

run,

if the plaintiff attempts

Puerto Rico court.

1435 n.3

district

courts

not to

(11th Cir.

See Edwards v.
___ _______

1993) ("When

after a state statute of

commonly

require

the

defendants to file a waiver of the statute of limitations defense

as

condition of

dismissal.");

Duckworth,
_________

(conditionally remanding pendent claim).

27

Vacated and remanded.

Vacated and remanded.
____________________

No costs.
No costs.
________

780

F.2d at

657

28