USCA1 Opinion
February 2, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1757
CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND
SUPREME ELECTRONICS DISTRIBUTORS, INC.,
Plaintiffs, Appellants,
v.
THE FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellee.
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No. 94-1788
CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND
SUPREME ELECTRONICS DISTRIBUTORS, INC.
Plaintiffs, Appellees,
v.
THE FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellant.
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ERRATA SHEET
The per curiam of this court, issued on January 26, 1995, is
amended as follows:
Coversheet, second docket number should read No. 94-1788 in
place of No. 94-1778.
January 26, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1757
CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND
SUPREME ELECTRONICS DISTRIBUTORS, INC.,
Plaintiffs, Appellants,
v.
THE FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellee.
____________________
No. 94-1788
CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND
SUPREME ELECTRONICS DISTRIBUTORS, INC.
Plaintiffs, Appellees,
v.
THE FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
__________________________
____________________
Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Hector F. Martinez-Jimenez for Caribbean Wholesales and
___________________________
Services Corporation and Supreme Electronics Distributors, Inc.
Manuel Moreda-Toledo for The First National Bank of Boston,
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N.A.
____________________
____________________
Per Curiam. This was once a potentially complex case
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concerning commercial and banking events and practice. Because
of procedural default, it now presents only easily resolved
issues concerning the district court's exercise of discretion.
The plaintiffs, Caribbean Wholesales and Service Corporation
and Supreme Electronics Distributors (Caribbean), a wholesaler of
electronic appliances, alleged that Novedades Guerra (Novedades),
a local retailer, purchased appliances from Caribbean with checks
that were returned by the defendant, the First National Bank of
Boston (FNBB), for lack of sufficient funds. Unable to collect
from Novedades, Caribbean filed this action to collect from FNBB
the sum of the returned checks, plus lost profits and other
damages totalling $3,000,000. The allegations of the complaint
sounded in contract, negligence, breach of fiduciary duties,
unsound banking practices, tortious interference with contractual
opportunities, and, principally, fraud. The essential theme was
that FNBB induced Caribbean to sell appliances on credit to
Novedades upon the representation that FNBB would honor
Novedades' checks, that FNBB reneged on its representation,
failed to monitor Novedades, and caused checks payable to
Caribbean to be dishonored.
The record reveals some 169 docket entries in a three-year
period -- over one a week -- of motions, requests for extensions,
orders, responses, replies to responses, objections, opposition
to objections, notices, and reports. The following crucial
events took place fifteen months after filing of the complaint:
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March 15, 1993 -- FNBB moves for summary judgment.
No opposition is filed within ten days, as Local Rule
311.5 required, nor is any request made for extension
of time.
March 30, 1993 -- At pretrial conference,
plaintiffs request an extension until April 12 to file
an opposition to summary judgment; this is granted.
But no opposition was filed.
March 31, 1993 -- Plaintiffs' counsel moves to
withdraw.
April 7, 1993 -- Plaintiff and counsel have composed
their differences, and request another extension until April
27. This is denied.
April 27, 1993 -- Plaintiffs submit yet another motion
asking for "a ten working day extension" to file their
opposition. This also is denied.
April 28, 1993 -- With only the bank's uncontested
factual submission before him, the magistrate judge
recommends granting the summary judgment motion.
May 13, 1993 -- The district court approves the report
of the magistrate judge. On the same day, plaintiffs file
an opposition to the report, accompanied by a request to
file a second amended complaint and a motion tendering
anticipatory testimony by an expert witness who had been
excluded.
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Following this, the court generously set aside its May 13
judgment, accepted "Plaintiffs' Objection to the Magistrate
Judge's Report and Recommendation," and granted leave to FNBB to
file an opposition. FNBB promptly complied, making the following
salient points:
1. The late request to amend, offered four months after
the December 22, 1992, Initial Scheduling Conference Order (which
established December 31, 1992, as the cut-off date for amending
pleadings, and which stated, "These dates shall not be changed.")
should not be allowed. The bank cited Riofrio Anda v. Ralston
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Purina, Co., 959 F.2d 1149, 1154-55 (1st Cir. 1992) (denial of
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motion to amend two months after deadline.)
2. The motion to allow the anticipated testimony of
plaintiffs' expert witness Myers should not be allowed.
Plaintiffs had not complied with the Initial Scheduling
Conference Order (concerning notice of the identity of a proposed
witness, a short statement of the subject of testimony,
justification of a late addition, and a copy of the expert's
curriculum vitae). The order had stated: "Non-compliance with
this order will result in such witnesses not being allowed to
testify at trial." Moreover, the magistrate judge's order of
March 16, rejecting the witness, had been appealed by plaintiffs,
and previously affirmed by the district court on April 13.
3. The magistrate judge's denial of plaintiffs' third
request for an extension of time to file objections to the report
should be upheld.
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4. On the merits of plaintiffs' claim that summary
judgment was not warranted, plaintiffs failed to present any
argument before the magistrate judge and may not use the de novo
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review proceedings afforded by Fed. R. Civ. P. 72(b) to offer new
material. FNBB cited Paterson-Leitch v. Massachusetts Municipal
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Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988), where we
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said: "In a nutshell, the argument . . . could have been, but
inexplicably was not, presented to the magistrate in the first
instance. The appellant is not entitled to yet another nibble at
this particular apple." See also Borden v. Secretary of Health
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and Human Servs., 836 F.2d 4, 6 (1st Cir. 1987).
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The district court, after considering the Objection and the
Opposition, first denied plaintiffs leave to file a Second
Amended Complaint, then refused to admit the anticipated
testimony of plaintiffs' expert witness. Having made these
rulings, the court then denied plaintiffs' motion for
reconsideration and reaffirmed its adoption of the magistrate
judge's Report and Recommendation on the basis of the
uncontroverted facts that were before him. The court thereupon
entered summary judgment for FNBB.
We readily affirm. The district court took action
extraordinarily favorable to plaintiffs in entertaining their
untimely objections to the magistrate judge's Report in the
absence of any meritorious excuse. The court's most crucial
decision was to refuse the request to file a Second Amended
Complaint. That this was within its discretion is clear. We
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doubt that a case can be found where the refusal of such a
request, made four months after a deadline for amended pleadings,
and in the absence of significant extenuating circumstances, has
been reversed for abuse of discretion. To the extent that such
an amended pleading replicated its predecessor, its exclusion
made little difference; to the extent that it introduced new
material, its admission at such a late date would have initiated
a significantly altered litigation. Moreover, allowing new
material and issues based therein, which were not presented to
the magistrate judge, would have violated the longstanding
principle recognized in Paterson- Leitch, 840 F.2d at 990-91. We
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have scanned the new material and see nothing to indicate that
its exclusion worked any injustice. There was not abuse of
discretion.
The exclusion of the "anticipated" testimony of plaintiffs'
expert witness also obviously was not an abuse of discretion.
The original ruling stemmed from plaintiffs' failure to comply
with the Initial Scheduling Conference Order and no reason was
given to support changing this decision.
Given these rulings, the only factual materials before the
court were those submitted to the magistrate judge and not
controverted by plaintiffs. These provided no basis for a
reversal of summary judgment.
We refuse to interfere with the district court's decision
not to impose sanctions for temerity at the trial level. We
cannot recall any instance where we have found a similar ruling
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to be an abuse of discretion. But, whatever may have been the
merits at the outset of this litigation, there could have been no
reasonable expectation of success in this appeal. We therefore
award defendant double costs and $1,000 toward its attorney's
fees, to be chargeable to appellants and their counsel jointly.
We affirm the judgments underlying both appeals. Costs and
fees as indicated.
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