USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2012
MANUEL MALDONADO-DENIS, ET AL.,
Plaintiffs, Appellants,
v.
REINALDO CASTILLO-RODRIGUEZ, ET. AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Demetrio Fernandez, with whom Melva A. Quintana was on
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brief, for appellants.
John F. Nevares, with whom Ilsa Y. Figueroa-Arus and Smith &
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Nevares were on brief, for appellee Carlos J. Lopez-Feliciano.
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Carlos Lugo-Fiol, Deputy Solicitor General, with whom Pedro
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A. Delgado-Hernandez, Solicitor General, and Mabel Ramon Milian
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were on brief, for appellee Ismael Betancourt-Lebron.
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May 6, 1994
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SELYA, Circuit Judge. This appeal arises out of an
SELYA, Circuit Judge.
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action brought pursuant to 42 U.S.C. 1983 (1988). In it,
appellants strive to convince us that the district court erred in
granting summary judgment in favor of defendants Ismael
Betancourt-Lebron (sometimes referred to as Ismael Betancourt y
Lebron) and Carlos J. Lopez-Feliciano. Although we are troubled
by the district court's action expediting the appeal under Fed.
R. Civ. P. 54(b), we affirm the entry of summary judgment.
I.
I.
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Statement of the Case
Statement of the Case
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In the early morning hours of February 15, 1991, a
police officer, Jose M. Colon-Burgos, allegedly shot and killed a
young man, Manuel E. Maldonado-Irizarry, in the line of duty.
The decedent's family members, appellants here, brought a
section 1983 suit in which they claimed, inter alia, that Colon-
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Burgos used excessive force; that the homicide constituted a
wrongful deprivation of the decedent's civil rights; and that
other law enforcement officers conspired to hide the truth.
In mounting this offensive, appellants cut a wide
swath; they sued Colon-Burgos, several of his confreres, and
certain high-ranking officials who had no direct connection to
the shooting or its aftermath. Betancourt-Lebron, who was the
superintendent of police when the incident occurred, and Lopez-
Feliciano, the former superintendent, fell into this latter
2
group.1 Appellants alleged in substance that Betancourt-Lebron
did not adequately supervise officers under his command, and
thereby exhibited deliberate indifference to the proper discharge
of his duties. Lopez-Feliciano, appellants said, exhibited
similar indifference during his tenure as superintendent, and, in
addition, failed properly to train members of the police force.
On February 22, 1993, Betancourt-Lebron moved for
summary judgment on appellants' third amended complaint.
Appellants requested, and received, several extensions of time.
Eventually, they tendered an opposition. On June 25, Lopez-
Feliciano moved for summary judgment. Appellants did not serve
an opposition, but, instead, requested a further extension of
time within which to respond. On July 13, the district court
denied the motion for more time, and, eight days later, granted
both Rule 56 motions.2 This appeal followed.
II.
II.
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Appellate Jurisdiction
Appellate Jurisdiction
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Fed. R. Civ. P. 54(b) permits the entry of final
judgment as to fewer than all the parties or claims in a multi-
party action, thus clearing the way for earlier-than-usual
appeals, "upon an express determination that there is no just
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1Lopez-Feliciano served as superintendent of police from
early 1986 until he resigned effective December 31, 1988. He had
no official standing on February 15, 1991.
2At the same time, the lower court entered the July 13 order
on the docket and granted a motion to dismiss that had been filed
on behalf of another high-ranking official, defendant Aida Myrna
Velez. Appellants have not ventured an appeal from this aspect
of the court's order.
3
reason for delay" in entering judgment.3 In this case, the
district court made the requisite finding and directed entry of
judgment notwithstanding that the action remained unadjudicated
as to numerous other parties.
The court focused on the existence of a special
circumstance: one of the defendants, Reinaldo Castillo-Rodriguez
(Castillo), had declared bankruptcy, triggering the automatic
stay, 11 U.S.C. 362; the case, the court felt, would likely "be
dormant for a number of months pending the disposition of [the]
bankruptcy matter"; and, therefore, it would "save time" to
permit the appeal to go forward "while the issue of the
bankruptcy stay was addressed before the bankruptcy court."
Because this determination implicates the existence vel non of
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appellate jurisdiction, we must satisfy ourselves concerning its
correctness even though the parties have acquiesced in it. See
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Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir.
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1988); United States General, Inc. v. Albert, 792 F.2d 678, 680
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(7th Cir. 1986).
This court has used a two-step approach in connection
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3The rule provides in pertinent part:
When more than one claim for relief is
presented in an action, . . . or when
multiple parties are involved, the court may
direct the entry of a final judgment as to
one or more but fewer than all of the claims
or parties only upon an express determination
that there is no just reason for delay and
upon an express direction for the entry of
judgment. . . .
Fed. R. Civ. P. 54(b).
4
with Rule 54(b) determinations. See Geiselman v. United States,
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961 F.2d 1, 3-5 (1st Cir.) (per curiam), cert. denied, 113 S. Ct.
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261 (1992); Feinstein v. Resolution Trust Corp., 942 F.2d 34, 44
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(1st Cir. 1991); Spiegel, 853 F.2d at 42-43. First, the ruling
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underlying the proposed judgment must itself be final in the
sense that it disposes completely either of all claims against a
given defendant or of some discrete substantive claim or set of
claims against the defendants generally. See Spiegel, 843 F.2d
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at 43. That requirement plainly is satisfied here; the orders
granting brevis disposition terminated appellants' claims against
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Betancourt-Lebron and Lopez-Feliciano in their entirety.
The second step of the Spiegel pavane is harder to
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master. It requires tracing the interrelationship between, on
one hand, the legal and factual basis of the claims undergirding
the proposed judgment (i.e., the jettisoned claims), and on the
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other hand, the legal and factual basis of the claims remaining
in the case. See id. Once the court of appeals has prepared the
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necessary schematic, it must then ponder the balance struck by
the district court between the desirability of immediate review
and the undesirability of promoting piecemeal appeals. See
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Kersey v. Dennison Mfg. Co., 3 F.3d 482, 486 (1st Cir. 1993);
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Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981)
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(Kennedy, J.).
Here, the second half of the Spiegel paradigm presents
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a borderline question. Appellants sued Betancourt-Lebron and
Lopez-Feliciano for improperly discharging supervisory
5
responsibilities in ways that led to the decedent's death. But
adjudicating those claims necessitates an exploration of the
facts concerning the shooting and alleged coverup. See, e.g.,
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Voutour v. Vitale, 761 F.2d 812, 820-21 (1st Cir. 1985), cert.
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denied, 474 U.S. 1100 (1986). Thus, there is a significant
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imbrication between the jettisoned claims and the remaining
claims. District courts should go very slowly in employing Rule
54(b) when, as in this instance, the factual underpinnings of the
adjudicated and unadjudicated claims are intertwined. See
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Spiegel, 843 F.2d at 45.
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We think, too, that the Rule 54(b) determination rests
on shaky ground for other reasons. In the first place, whether
the record is scanned from the standpoint of the plaintiffs, the
defendants, or the court, it discloses no urgent need for
immediate review. In the second place, trial of the remaining
claims has the potential of mooting the issue of supervisory
liability and rendering further appellate review of the summary
judgment order superfluous. Given these circumstances, and given
the "long-settled and prudential policy against scattershot
[appeals]," id. at 42, the rush to enter an immediate judgment
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strikes us as problematic.
To be sure, the scales are not entirely out of balance.
The judgment did dispose fully of all claims against a group of
parties appellees and Velez and those claims raised a set of
unique issues. And, moreover, the district court had an arguably
plausible reason the enforced stay of litigation on the
6
district court level for resorting to Rule 54(b). These
factors tend to balance out, to some extent, the factors that
counsel in favor of a more deliberate approach.
While we, if writing on a pristine page, would have
accorded greater weight to considerations of judicial economy and
the importance of discouraging broadly piecemeal appeals, three
things persuade us to allow the Rule 54(b) determination to
stand: first, the special circumstance presented by the stay;
second, the differences, both legal and factual, that distinguish
the claims against appellees from the claims against the other
defendants; and third, the deference owed to the trial court's
determinations under Rule 54(b), see Spiegel, 843 F.2d at 42.
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Although the call is excruciatingly close, we are not prepared to
say that the court below overstepped the bounds of its discretion
here.4
III.
III.
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The Summary Judgment Standard
The Summary Judgment Standard
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Summary judgment is permissible when "there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). We review a grant of summary judgment de novo, see Quaker
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State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1513
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(1st Cir. 1989), scrutinizing the entire record in the light most
flattering to the nonmovant and indulging all reasonable
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4Though we permit the appeal to go forward, we urge the
district courts, in borderline cases, to exercise restraint
rather than allowing appeals to proceed in an inchmeal fashion.
7
inferences in that party's favor. See Brennan v. Hendrigan, 888
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F.2d 189, 191 (1st Cir. 1989); Mack v. Great Atlantic & Pacific
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Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
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Summary judgment practice has a rhythm of its own. We
have described that rhythm in the following way:
The movant must put the ball in play,
averring "an absence of evidence to support
the nonmoving party's case." The burden then
shifts to the nonmovant to establish the
existence of at least one fact issue which is
both "genuine" and "material." A "genuine"
issue is one "that properly can be resolved
only by a finder of fact because [it] may
reasonably be resolved in favor of either
party." Put another way, a "genuine" issue
exists if there is "sufficient evidence
supporting the claimed factual dispute" to
require a choice between "the parties'
differing versions of the truth at trial." A
"material" issue is one that "affect[s] the
outcome of the suit," that is, an issue
which, perforce, "need[s] to be resolved
before the related legal issues can be
decided."
Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)
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(citing and quoting, inter alia, Celotex Corp. v. Catrett, 477
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U.S. 317, 325 (1986), and Anderson v. Liberty Lobby, Inc., 477
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U.S. 242, 250 (1986) (other citations omitted)).
On issues as to which the nonmovant bears the ultimate
burden of proof, he may not defeat a properly focused motion for
summary judgment by relying upon mere allegations or evidence
that is less than significantly probative. See Anderson, 477
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U.S. at 249-50; Pagano v. Frank, 983 F.2d 343, 348 (1st Cir.
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1993). Put another way, a party opposing summary judgment must
"present definite, competent evidence to rebut the motion."
8
Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991),
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cert. denied, 112 S. Ct. 2965 (1992); accord Fragoso v. Lopez,
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991 F.2d 878, 887 (1st Cir. 1993). Thus, summary judgment likely
will be appropriate if the nonmovant elects to rest upon some
combination of "conclusory allegations, improbable inferences,
and unsupported speculation." Medina-Munoz v. R.J. Reynolds
____________ ______________
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
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There is another important dimension to summary
judgment practice: motions for summary judgment must be decided
on the record as it stands, not on litigants' visions of what the
facts might some day reveal. As we have warned, "[b]rash
conjecture, coupled with earnest hope that something concrete
will eventually materialize, is insufficient to block summary
judgment." Dow v. United Bhd. of Carpenters, 1 F.3d 56, 58 (1st
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Cir. 1993).
IV.
IV.
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Supervisory Liability
Supervisory Liability
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Although a superior officer cannot be held vicariously
liable under 42 U.S.C. 1983 on a respondeat superior theory,
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see Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978);
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Gutierrez-Rodgriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir.
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1989), he may be found liable under section 1983 on the basis of
his own acts or omissions, see Bowen v. Manchester, 966 F.2d 13,
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20 (1st Cir. 1992); Manarite v. Springfield, 957 F.2d 953, 957
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(1st Cir.), cert. denied, 113 S. Ct. 113 (1992); Gutierrez-
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Rodriguez, 882 F.2d at 562.
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9
One way in which a supervisor's behavior may come
within this rule is by formulating a policy, or engaging in a
custom, that leads to the challenged occurrence. See Oklahoma
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City v. Tuttle, 471 U.S. 808, 823-24 (1985). Thus, even if a
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supervisor lacks actual knowledge of censurable conduct, he may
be liable for the foreseeable consequences of such conduct if he
would have known of it but for his deliberate indifference or
willful blindness, and if he had the power and authority to
alleviate it. See Miranda v. Munoz, 770 F.2d 255, 260 (1st Cir.
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1985); DiMarzo v. Cahill, 575 F.2d 15, 17-18 (1st Cir.), cert.
_______ ______ _____
denied, 439 U.S. 927 (1978); cf. Pinto v. Nettleship, 737 F.2d
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130, 132 (1st Cir. 1984) (barring liability under 1983 for
actions beyond supervisor-defendant's control).
Under this rubric, a supervisor may be held liable for
what he does (or fails to do) if his behavior demonstrates
deliberate indifference to conduct that is itself violative of a
plaintiff's constitutional rights. See, e.g., City of Canton v.
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Harris, 489 U.S. 378, 388 (1989); Manarite, 957 F.2d at 957;
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Gutierrez-Rodriguez, 882 F.2d at 562; see also Rivas v. Freeman,
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940 F.2d 1491, 1495 (11th Cir. 1991). Deliberate indifference,
however, is not the be-all and the end-all of a section 1983
claim premised on supervisory liability. As we explain below,
there is a causation element as well.
To succeed on a supervisory liability claim, a
plaintiff not only must show deliberate indifference or its
equivalent, but also must affirmatively connect the supervisor's
10
conduct to the subordinate's violative act or omission. See
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Bowen, 966 F.2d at 20; Lewis v. Smith, 855 F.2d 736, 738 (11th
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Cir. 1988); Pinto, 737 F.2d at 132. This causation requirement
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can be satisfied even if the supervisor did not participate
directly in the conduct that violated a citizen's rights; for
example, a sufficient casual nexus may be found if the supervisor
knew of, overtly or tacitly approved of, or purposely disregarded
the conduct. See, e.g., Larez v. Los Angeles, 946 F.2d 630, 646
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(9th Cir. 1991); Lipsett v. University of Puerto Rico, 864 F.2d
_______ _________________________
881, 902-03 (1st Cir. 1988). Consequently, deliberate
indifference to violations of constitutional rights can forge the
necessary linkage between the acts or omissions of supervisory
personnel and the misconduct of their subordinates. See
___
Gaudreault v. Salem, 923 F.2d 203, 208 (1st Cir. 1990), cert.
__________ _____ _____
denied, 111 S. Ct. 2266 (1991).
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A causal link may also be forged if there exists a
known history of widespread abuse sufficient to alert a
supervisor to ongoing violations. When the supervisor is on
notice and fails to take corrective action, say, by better
training or closer oversight, liability may attach. See Brown v.
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Crawford, 906 F.2d 667, 671 (11th Cir. 1990), cert. denied, 111
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S. Ct. 2056 (1991); Gutierrez-Rodriguez, 882 F.2d at 564-66.
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We hasten to add that isolated instances of
unconstitutional activity ordinarily are insufficient to
establish a supervisor's policy or custom, or otherwise to show
deliberate indifference. See Tuttle, 471 U.S. at 823-24;
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11
Rodriquez v. Furtado, 950 F.2d 805, 813 (1st Cir. 1991); see also
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Voutour, 761 F.2d at 820 (finding no liability though police
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chief knew of past complaints of brutality; plaintiff failed to
show a pattern so striking that it would permit an inference of
supervisor's encouragement or approval of officers' actions). By
like token, proof of mere negligence, without more, is inadequate
to ground supervisory liability. See Febus-Rodrigues v.
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Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir. 1994); Haynesworth v.
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Miller, 820 F.2d 1245, 1261 (D.C. Cir. 1987). Gross negligence
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can signify deliberate indifference and serve as a basis for
supervisory liability if it is causally connected to the actions
that work the direct constitutional injury. See Voutour, 761
___ _______
F.2d at 820. Hence, inadequate training of subordinates may be a
basis for a section 1983 claim against a superior officer. See,
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e.g., Harris, 489 U.S. at 388-89; Hopkins v. Andaya, 958 F.2d
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881, 888 (9th Cir. 1992); Kibbe v. Springfield, 777 F.2d 801, 807
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(1st Cir. 1985), cert. dismissed, 480 U.S. 257 (1987).
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V.
V.
__
Betancourt-Lebron's Motion
Betancourt-Lebron's Motion
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Though the district court granted summary judgment in
favor of both Betancourt-Lebron and Lopez-Feliciano, appellants
approach each ruling from a different direction. We, therefore,
bifurcate our analysis. We begin with Betancourt-Lebron, but we
do not linger long. The nisi prius roll discloses no evidence on
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which a claim of supervisory liability against that defendant
might properly be predicated.
12
To be sure, the record contains evidence from which a
jury reasonably could conclude that the remaining defendants
the police officers allegedly involved in the shooting and the
coverup abridged the decedent's civil rights. But appellants'
attempts to link Betancourt-Lebron to these activities are
impuissant. There is no competent proof of actual participation,
or of a policy of tolerating similar violations, or of deliberate
indifference. Nor is there proof of a pattern of misconduct
sufficient to put the superintendent of police on inquiry
notice.5
In sum, considering the record in the light most
congenial to appellants, we can find only tenuous assertions
strung together by strands of speculation and surmise. More is
required to survive summary judgment. See Fragoso, 991 F.2d at
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887; Medina-Munoz, 896 F.2d at 8. Supervisory liability attaches
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only if a plaintiff can demonstrate by material of evidentiary
quality an affirmative link between the supervisor's conduct and
the underlying section 1983 violation. See Bowen 966 F.2d at 20;
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Pinto, 737 F.2d at 132. Here, the record is bereft of any proof,
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5Appellants did proffer two previous administrative
complaints, one naming Colon-Burgos and the other naming
Castillo. These complaints have only marginal relevance to the
claims at issue in this appeal. The complaint against Colon-
Burgos relates to his conduct during an alleged dispute with his
former mother-in-law. The complaint against Castillo relates to
his alleged
discourteousness in refusing to return a firearm to its owner.
There is absolutely no connection between these complaints and
the charges levelled against the officers in this case. A
_
fortiori, there is no connection between the complaints and
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appellants' claims against the appellees.
13
direct or inferential, of a causal link between Betancourt-
Lebron's activities and the alleged deprivation of constitutional
rights. It follows that the district court appropriately ordered
summary judgment.
VI.
VI.
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Lopez-Feliciano's Motion
Lopez-Feliciano's Motion
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On the record before the district court, Lopez-
Feliciano's entitlement to summary judgment cannot seriously be
disputed.6 Indeed, appellants offer no developed argumentation
to the contrary; rather, they assign error to the denial of their
Rule 6(b) motion for additional time in which to marshal an
opposition. Thus, the question presented in respect to this
motion is not a matter of evidentiary sufficiency but a matter of
procedural orthodoxy.
We start with first principles. A trial court may
enlarge the time for responding to motions, including motions for
summary judgment.7 See, e.g., United States v. One Lot of U.S.
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6This statement reflects our assessment of the record as it
stands, recognizing that, even if unopposed, a motion for summary
judgment can only be granted if the record discloses the movant's
entitlement to judgment as a matter of law. See Mendez v. Banco
___ ______ _____
Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir. 1990).
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7The rule on which appellants rely provides in pertinent
part:
[T]he court for cause shown may at any time
in its discretion (1) . . . order [a time]
period enlarged if request therefor is made
before the expiration of the period
originally prescribed or as extended by a
previous order, or (2) upon motion made after
the expiration of the specified period permit
the act to be done where the failure to act
14
Currency ($68,000), 927 F.2d 30, 33-35 (1st Cir. 1991); Mendez v.
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Banco Popular de Puerto Rico, 900 F.2d 4, 5-6 (1st Cir. 1990).
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The district court is afforded great leeway in granting or
refusing enlargements, see Mendez, 900 F.2d at 6, and its
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decisions are reviewable only for abuse of that discretion, see
___
id. at 7. This deference is grounded in common sense. We deem
___
it self-evident that "appellate courts cannot too readily agree
to meddle in such case-management decisions lest the trial
court's authority be undermined and the systems sputter." Id.
___
However, there are few, if any, guidelines beyond these
abecedarian principles, for decisions about whether enlargements
of time are warranted tend to be case specific.
The facts surrounding the Rule 6(b) dispute in this
case are simple. Lopez-Feliciano moved for summary judgment on
Friday, June 25, 1993. Under prevailing practice, appellants'
response was due within ten days. See D.P.R. Loc. R. 311.5,
___
311.12. On Friday, July 2, appellants' counsel advised the
court, by means of an informative motion, that he would "be on
vacation leave from July 3, 1993 until August 6, 1993." On July
6, after counsel had left for Europe, appellants for the first
time requested, in a curt, two-paragraph motion, that the court
extend the time for filing their opposition to Lopez-Feliciano's
summary judgment initiative until late August. Appellants'
motion alleged, in a purely conclusory fashion, that Lopez-
____________________
was the result of excusable neglect . . . .
Fed. R. Civ. P. 6(b).
15
Feliciano's motion "contained voluminous exhibits and questions
of law which require an additional time to study and
investigate."
On July 13, the district court denied the sought-after
extension. The court noted that it had "patiently granted
several requests of this nature [for appellants' benefit] in the
past," and indicated that it could not justify "continu[ing] [to]
[allow] . . . delay in the disposition of pending matters." No
opposition was ever filed, and the court granted brevis
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disposition in Lopez-Feliciano's favor on July 21.
It is important to pin down what this appeal does not
involve. Appellants did not, by affidavit or other proffer,
invoke Fed. R. Civ. P. 56(f),8 claiming, say, that they needed
more time for additional discovery. By like token, appellants
did not advert to any circumstances beyond their control, such as
an attorney's illness, to justify an enlargement of time.
Rather, they sought the extension primarily for the convenience
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8The rule reads:
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.
Fed. R. Civ. P. 56(f).
16
of counsel, who wished to take a leisurely vacation.9
Viewed in this light, the ruling is supportable. The
judge, not counsel, must run the court and set the agenda. This
entails establishing reasonable time parameters and ensuring
compliance with them. Reversing the roles of court and counsel
would invite chaos. See de la Torre v. Continental Ins. Co., 15
___ ____________ ____________________
F.3d 12, 14 (1st Cir. 1994); Higuera v. Pueblo Int'l, Inc., 585
_______ ___________________
F.2d 555, 557 (1st Cir. 1978). Consequently, it will be a rare
case in which an appellate court will fault a trial judge for
refusing to elevate counsel's convenience over the need to
maintain respect for court rules that require filings to be made
within a set time frame. As we acknowledged in an analogous
situation, "a district judge often must be firm in managing
crowded dockets and demanding adherence to announced deadlines."
Mendez, 900 F.2d at 7.
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Of course, judges are not tinpot dictators, and
firmness must not be confused with tyranny. But, here, the
denial of appellants' Rule 6(b) motion, silhouetted against the
historical background of the case, seems reasonable, not despotic
or even arbitrary. Two circumstances are of particular interest
in this regard.
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9Indeed, given the wholly conclusory nature of the other
reasons advanced in the July 6 motion, the plethoric discovery
already completed, and the similarity between Lopez-Feliciano's
motion and the summary judgment motion filed earlier by
Betancourt-Lebron (to which appellants had already responded),
there was ample room for the district court to conclude that
counsel's convenience comprised the only impetus behind the
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extension request.
17
First, the disputed extension request came after
appellants trespassed on the court's indulgence many times over
many months, e.g., amending the complaint three times, obtaining
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at least five enlargements of time to oppose earlier motions for
summary judgment, and successfully rescheduling pretrial
conferences on no fewer than four occasions.
Second, appellants' lawyer exhibited meager respect for
the court. Although his European respite had been planned since
March, the lawyer filed his informative motion at the beginning
of July and filed the extension request three days after his
actual departure. Appellants' only excuse for this discourtesy
rings hollow. They point out that, on June 18, they filed a
request to postpone the pretrial conference, then set for July
20, on the ground that their counsel "will be in Europe from July
3, 1993 until August 6, 1993." On July 1, the district court
granted the request, shifting the conference to August 17.
Appellants contend that their request necessarily alerted the
court to counsel's vacation plans, and that the granting of the
request lulled them into believing that the court would work
around counsel's absence.
This contention will not wash. For one thing, the
district court did not act on the request until July 1; thus,
appellants could not have placed any meaningful reliance on the
granting of the request. This lack of reliance is adequately
evinced by appellants' subsequent filing, in rapid sequence, of
the informative motion and the Rule 6(b) motion. For another
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thing, the June 18 request did not fairly apprise the district
court of the overall situation. Appellants limited the request
to the timing of the pretrial conference. The fact that counsel
wished personally to attend that proceeding shed no definitive
light upon his intentions vis-a-vis more mundane matters.
Indeed, since the request did not mention other aspects of the
litigation, the court reasonably could infer that counsel had
made suitable arrangements and would not require any special
dispensation in regard to motion practice, discovery proceedings,
and the like.
The issue does not require further elaboration. A
petition for a continuance is always suspect when it is within
the power of the petitioner to alter the conditions that
allegedly preclude him from acting within the allotted period of
time. Here, appellants can identify nothing that suffices to
dispel this cloud. And a variety of other factors support the
reasonableness of the district court's action in holding
appellants to the rule: the filing of Lopez-Feliciano's motion
for summary judgment came as no surprise; appellants had ample
opportunity including roughly eight days before counsel
departed within which to respond to it; they had the benefit of
ample discovery, rendering it unlikely that a further opportunity
to submit additional materials would have influenced the outcome
of the case; and, finally, they failed to file a Rule 56(f)
motion. This omission speaks volumes. Litigants who are
unprepared to respond in a timely manner to motions for summary
19
judgment cannot be encouraged or permitted to essay end runs
around the substantial requirements of Rule 56(f). See generally
___ _________
Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co.,
___________________ ________________________________________
840 F.2d 985, 988 (1st Cir. 1988) (discussing requirements).
When all is said and done, the district court's refusal
to grant the requested extension comes down to a matter of
discretion. The test for abuse of discretion is well settled in
this circuit, see, e.g., United States v. Roberts, 978 F.2d 17,
___ ____ _____________ ________
21 (1st Cir. 1992); Independent Oil & Chem. Workers of Quincy,
____________________________________________
Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.
____ __________________________
1988), and does not bear reiteration. Applying this test, we
conclude that, though the district court's decision perhaps can
be characterized as tough-minded, the court made no obvious
mistake either in isolating or in weighing the appropriate
factors. While attorneys are entitled to take vacations, a trial
lawyer who wishes to plan a lengthy pleasure trip has a
corresponding obligation to advise the judge and opposing counsel
well in advance, and to make appropriate arrangements for case
coverage in his absence. When, as now, an attorney fails to take
elementary precautions, and the trial court declines to alter
course, an appellate tribunal should not interfere without
compelling reason. After all, "[r]ules are rules and the
parties must play by them." Mendez, 900 F.2d at 7. Here,
______
appellants have articulated no plausible basis for us to
intervene.
Our conclusion that the district court did not err in
20
denying appellants' Rule 6(b) motion ends our inquiry. Appellants
offer no developed argumentation to demonstrate that, on the
record as it stands, summary judgment could have been avoided.
The point is, therefore, effectively conceded. See Ryan v. Royal
___ ____ _____
Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990) ("It is settled in
________
this circuit that issues adverted to in a perfunctory manner,
unaccompanied by some developed argumentation, are deemed to have
been abandoned."). The judgment in favor of Lopez-Feliciano must
stand.
VII.
VII.
____
Conclusion
Conclusion
__________
We need go no further. Having examined the record with
care, we are satisfied that the appeal is properly before us. In
the exercise of that discerned jurisdiction, we conclude that the
court below did not err either in denying appellants further time
or in granting appellees' motions for summary judgment. Although
the rhetoric of supervisory liability reverberates from the pages
of appellants' briefs, the record contains no evidence of
culpability sufficient to relate the rhetoric to the reality of
events.
Affirmed.
Affirmed.
________
Concurring opinion follows
21
BOWNES, J., separately concurring. I concur in the
BOWNES, J., separately concurring.
____________________________________
result reached in this case and commend the writing judge for his
scholarly and clearly written discussion of supervisory
liability.
I concur in the result reached on the appellate
jurisdiction question, but I do not agree that the issue was
"excruciatingly close." I think the district court was clearly
correct in finding that "there is no just reason for delay."
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