USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1455
MARIA DEL CARMEN REYES-GARCIA, ET AL.,
Plaintiffs, Appellees,
v.
RODRIGUEZ & DEL VALLE, INC.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya and Cyr, Circuit Judges,
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and Gertner,* District Judge.
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Virgilio Mendez Cuesta on brief for appellant.
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Jose F. Quetglas Alvarez, Jose F. Quetglas Jordan, and Eric
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M. Quetglas Jordan on brief for appellees.
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April 25, 1996
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*Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. Since appellate judges are not
SELYA, Circuit Judge.
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haruspices, they are unable to decide cases by reading goats'
entrails. They instead must rely on lawyers and litigants to
submit briefs that present suitably developed argumentation with
appropriate citations to applicable precedents and to the record
below. A party who honors the minimum standards of acceptable
appellate advocacy only in the breach frustrates effective review
and thereby jeopardizes its appeal. The case at bar is a
paradigmatic example of a situation in which a party, by ignoring
the rules, invites serious repercussions.
I
I
We sketch the underlying facts as best we can,
resolving infrequent conflicts in favor of the jury verdict. See
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Cumpiano v. Banco Santander P.R., 902 F.2d 148, 151 (1st Cir.
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1990).
In 1987, defendant-appellant Rodriguez & Del Valle,
Inc. (R&D), a general contractor, executed an agreement with a
public agency, the Urban Renewal and Housing Corporation of
Puerto Rico (the Corporation), to renovate several residential
buildings in the Puerta de Tierra Housing Community, San Juan,
Puerto Rico. Without obtaining the permission required by
relevant regulations or any other semblance of permission, for
that matter R&D levelled speed bumps on a road that provided
entry into the Housing Community. Though flattening the
protuberances facilitated access to the work site by R&D's
vehicles and heavy machinery, the changed configuration also
2
effectively converted the roadway into a drag strip for high-
speed racing. Dismayed residents soon petitioned the
municipality to reconstruct the speed bumps. The powers-that-be
acquiesced and the municipality rebuilt the moguls (spacing them
at their original fifty-foot intervals, rather than at the 100-
foot intervals then mandated by applicable highway safety
regulations). The drag-racing ceased and traffic slowed to a
snail's pace.
R&D was not to be inconvenienced. It again levelled
the speed bumps on its own authority. Not surprisingly, drag-
racing resumed and the pace of traffic accelerated. When R&D
finished the renovations limned by its contract, it departed the
site without restoring the roadway to its original humpbacked
condition. Residents alerted the authorities, warning that lives
were at stake. After conducting an investigation, the
municipality concluded that someone had best rebuild the speed
bumps.
History teaches that at one point Rome burned while the
Emperor fiddled. On September 18, 1990 while various parties
(including R&D and the Corporation) were fencing over who had the
responsibility to restore the speed bumps a motorist named Jose
Flores, travelling at high speed on the roadway, lost control of
his automobile and struck plaintiff-appellee Maria del Carmen
Reyes-Garcia (Reyes) as she stood on the sidewalk. The impact
caused permanently debilitating injuries, including the severance
of a limb.
3
Invoking diversity jurisdiction, 28 U.S.C. 1332(a),
the plaintiff, by then a citizen of New Jersey, sued several
parties, including R&D, in the United States District Court for
the District of Puerto Rico.1 At trial plaintiff advanced a
golconda of tort theories against R&D, claiming inter alia that
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R&D had violated a highway safety regulation requiring
contractors to seek permission from the municipality prior to
removing speed bumps, and that R&D's conduct had transgressed the
general duty of care owed under Puerto Rico law. See P.R. Laws
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Ann. tit. 31, 5141 (1991) (providing for liability when a
defendant "by an act or omission causes damage to another party
through fault or negligence").
After a six-day trial, a jury found for the plaintiff
and awarded her $700,000. It apportioned the damages 80% against
the Corporation and 20% against R&D. The district court denied a
variety of post-trial motions. R&D now appeals.
II
II
The appellant's submissions to this court are in utter
disregard of the applicable procedural rules. It filed a nine-
page opening brief that did not contain a table of contents, a
list of legal authorities, a jurisdictional statement, a
statement of the case, a pr cis of the issues presented for
review, or a summary of the argument. The merits section of the
brief lacked developed argumentation, eschewed any meaningful
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1Reyes' children also sued, but we need not discuss their
claims.
4
citations to pertinent legal authority, omitted particularized
references to the record evidence, and did not discuss the
applicable standard(s) of review. To cap matters, the appellant
failed to prepare a record appendix. In short, the brief
violated a whole series of requirements imposed by applicable
procedural rules. See, e.g., Fed. R. App. P. 28(a)(1)-(6),
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28(e), & 30(a); 1st Cir. R. 28.2.
The plaintiff moved to dismiss the unleavened appeal.
R&D responded in fits and starts. It filed two addenda to its
opening brief (neither of which satisfactorily repaired the
manifold defects in its original filings). Without consulting
the plaintiff, see Fed. R. App. P. 30(b), R&D also prepared and
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filed a thirteen-page record appendix. This submission lacked
vital excerpts from the trial record. It also lacked, among
other things, an index, relevant docket entries, the notice of
appeal, and the opinion of the district court denying the post-
trial motions. The principal document in the appendix was in the
Spanish language, without translation. These shortcomings
violated the rules several times over. See, e.g., Fed. R. App.
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P. 30(a), (d); 1st Cir. R. 28.2 & 30.7.
III
III
Procedural rules are important for two overarching
reasons. One reason is that rules ensure fairness and
orderliness. They ensure fairness by providing litigants with a
level playing field. They ensure orderliness by providing courts
with a means for the efficient administration of crowded dockets.
5
In both these respects rules facilitate the tri-cornered
communications that link the opposing parties with each other and
with the court.
The second overarching reason why procedural rules are
important has a functional orientation: rules establish a
framework that helps courts to assemble the raw material that is
essential for forging enlightened decisions. In an appellate
venue, for example, rules provide the mechanism by which the
court, removed from the battlefield where the trial has been
fought, gains the information that it requires to set the issues
in context and pass upon them. When a party seeking appellate
review fails to comply with the rules in one or more substantial
respects, its failure thwarts this effort and deprives the
appellate court of the basic tools that the judges of the court
need to carry out this task. See Scarfo v. Cabletron Sys., Inc.,
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54 F.3d 931, 963 (1st Cir. 1995); Moore v. Murphy, 47 F.3d 8, 10
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(1st Cir. 1995); Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d
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1555, 1559 n.5 (1st Cir. 1989); Real v. Hogan, 828 F.2d 58, 60
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(1st Cir. 1987).
In this instance the second reason is of paramount
importance. The deficiencies in the appellant's submissions are
pervasive. They frustrate any reasonable attempt to understand
its legal theories and to corroborate its factual averments.
Canvassing the appellant's arguments illustrates the point.
The appellant's principal claim is that it enjoyed a
privilege to remove the speed bumps because they were placed at
6
shorter intervals than prescribed by the governing municipal
regulation. This paralogism, however, is unsupported by any
citation either to legal authority or to record evidence.
Therefore, we must treat the argument as forfeited. See Ryan v.
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Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1991) ("It is settled
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in this circuit that issues adverted to on appeal in a
perfunctory manner, unaccompanied by some developed
argumentation, are deemed to have been abandoned."); United
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States v. Zannino, 895 F.2d 1, 17 (1st Cir.) (same), cert.
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denied, 494 U.S. 1082 (1990); see also Fed. R. App. P. 28(a)(5)
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(explaining that an appellate "argument must contain the
contentions of the appellant on the issues presented, and the
reasons therefor, with citations to the authorities, statutes,
and parts of the record relied on"). To make a bad situation
worse, the argument is bereft of any indicium that it was
seasonably advanced and properly preserved in the lower court.
The appellant's next asseveration is that the evidence
does not support the jury verdict. Here, too, the appellant
offers us no assurance that the necessary steps were taken below
to preserve the point, and the fragmented record that it has
produced does not afford any reliable way to tell. At any rate,
the appellant furnishes no citations to the record in support of
its rhetoric, but asks in effect that we take its rodomontade at
face value. There is no justification for doing so.
The appellant's third argument implicates the refusal
to order a remittitur. Federal law governs the question of
7
whether the trial court should order a remittitur in a diversity
case. See Blinzler v. Marriott Int'l, Inc., ___ F.3d ___, ___
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(1st Cir. 1996) [No. 95-2108, slip op. at 30]. Under federal
law, appellate review of a trial court's refusal to trim a
verdict is necessarily limited to whether the court abused its
discretion in leaving the award intact. See, e.g., Ruiz v.
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Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991); Wagenmann v.
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Adams, 829 F.2d 196, 215 (1st Cir. 1987). Though bareboned, the
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record makes manifest the nature and extent of the plaintiff's
injuries. We need not go into graphic detail; even at a casual
glance, it beggars credulity to argue, as does R&D, that $700,000
in damages for a severed limb and other injuries is "grossly
excessive, inordinate, shocking to the conscience . . ., or so
high that it would be a denial of justice to permit it to stand."
Correa v. Hospital San Francisco, 69 F.3d 1184, 1197 (1st Cir.
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1995) (quoting Grunenthal v. Long Island R.R. Co., 393 U.S. 156,
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159 & n.4 (1968)).
The appellant's final argument is that it is entitled
to a new trial because the district court allegedly declined to
name Flores, the driver of the speeding car, on the verdict
form.2 But the meager record that we have before us does not
indicate that R&D preserved an objection on this ground at trial,
and preserving the point is a prerequisite to a successful
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2The jury form did permit the jurors to find that the
driver's negligence constituted the sole proximate cause of the
plaintiff's injuries and to exonerate R&D in that event. The
jury found otherwise.
8
appeal. See, e.g., Putnam Resources v. Pateman, 958 F.2d 448,
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456 (1st Cir. 1992) ("Silence after instructions, including
instructions on the form of the verdict to be returned by the
jury, typically constitutes a waiver of any objections."). In
all events, the appellant neglects to mention the singularly
important fact that Flores was not a party to the lawsuit; the
plaintiff had failed properly to serve him, and the appellant had
not seen fit to implead him. The appellant offers no plausible
theory why the district judge, under these circumstances, should
have inserted Flores' name on the verdict form and we can think
of none.
The parties to an appeal must recognize that rules are
not mere annoyances, to be swatted aside like so many flies, but,
rather, that rules lie near the epicenter of the judicial
process. This case shows why that is so; indeed, we have
canvassed the appellant's asseverational array mainly to
demonstrate that, even if we were inclined to do R&D's homework
and that is not our place R&D's substantial noncompliance with
the rules would hamstring any attempt to review the issues
intelligently. Of course, there must be some play in the joints.
No one is perfect, and occasional oversights fribbling
infringements of the rules that neither create unfairness to
one's adversary nor impair the court's ability to comprehend and
scrutinize a party's submissions ordinarily will not warrant
Draconian consequences. But major infractions or patterns of
repeated inattention warrant severe decrees. "In the long run, .
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. . strict adherence to . . . procedural requirements . . . is
the best guarantee of evenhanded administration of the law."
Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980).
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We hold that a party's persistent noncompliance with
appellate rules, in and of itself, constitutes sufficient cause
to dismiss its appeal. See Kushner v. Winterthur Swiss Ins. Co.,
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620 F.2d 404, 407 (3d Cir. 1980) (dismissing appeal for failure
to comply with FRAP rules); see also Mortell v. Mortell Co., 887
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F.2d 1322, 1327 (7th Cir. 1989) (observing that failure to comply
with the rules can be "fatal" to an appeal); Katz v. King, 627
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F.2d 568, 571 n.3 (1st Cir. 1980) (warning that failure to
observe the rules may "result in the loss of valuable rights" and
listing dismissal as an appropriate response to such violations);
see also Fed. R. App. P. 3(a) (stipulating that the "[f]ailure of
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an appellant to take any step other than the timely filing of a
notice of appeal" may be grounds "for such action as the court of
appeals deems appropriate, which may include dismissal of the
appeal"). We need not tarry in applying this holding to the case
at hand. Appeals must be prosecuted in substantial compliance
with applicable procedural rules and this appeal fails that
test.3 The violations here are nothing short of egregious.
Dismissal is plainly warranted. Accordingly, the appeal is
dismissed with prejudice.
IV
IV
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3In all candor, moreover, the appeal from what we can tell
appears to be totally devoid of merit.
10
We have one more base to touch. If the shoe fits, the
court of appeals may impose sanctions. See Fed. R. App. P. 38
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(authorizing awards of "just damages" and "double costs" for
frivolous appeals); 28 U.S.C. 1912 (similar); 28 U.S.C. 1927
("Any attorney . . . who so multiplies the proceedings in any
case unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such conduct."). The
plaintiff urges that this is an appropriate instance for the
imposition of such sanctions.
We have said that "[a]ppellate sanctions are aimed at
discourag[ing] litigants from wasting time and resources of both
their opponents and the judicial system with arguments that are
without merit." Transnational Corp. v. Rodio & Ursilio, Ltd.,
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920 F.2d 1066, 1072 (1st Cir. 1990); see also Toscano v.
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Chandris, S.A., 934 F.2d 383, 387 (1st Cir. 1991) (explaining
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that sanctions are a proper response to a frivolous appeal). By
like token, sanctions are an appropriate means of discouraging
parties and their counsel from wasting the time of courts and
other litigants by prosecuting appeals in ways that deviate
substantially from the rules. See, e.g., Calderon-Ontiveros v.
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INS, 809 F.2d 1050, 1053 (5th Cir. 1986) (imposing sanctions for
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failure to comply with FRAP rules); Hamblen v. County of Los
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Angeles, 803 F.2d 462, 464-65 (9th Cir. 1986) (similar). Here,
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the imposition of sanctions may well serve either or both of
these purposes.
11
In order to ensure that we hear both sides of the
story, we direct the plaintiff's counsel to prepare, file, and
serve within two weeks of the date hereof an application for fees
and costs on appeal in the usual format, see, e.g., Weinberger v.
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Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir. 1991)
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(discussing contents of fee applications), together with a
memorandum of law, not to exceed ten pages in length, in support
of the plaintiff's request for sanctions. Within two weeks
thereafter, the appellant shall file a memorandum (subject to the
same page limitation) attempting to show cause (if any there be)
why sanctions should not be assessed against R&D and its counsel,
jointly and severally. R&D may, if it so elects, file at the
same time an affidavit of its counsel commenting upon the
reasonableness of the fees requested by the applicant.
The appeal is dismissed with prejudice. We retain
The appeal is dismissed with prejudice. We retain
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appellate jurisdiction for the purpose of further considering the
appellate jurisdiction for the purpose of further considering the
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plaintiff's request for sanctions. The parties shall make the
plaintiff's request for sanctions. The parties shall make the
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filings described herein within the assigned time parameters. We
filings described herein within the assigned time parameters. We
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shall withhold mandate until the question of sanctions has been
shall withhold mandate until the question of sanctions has been
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resolved.
resolved.
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So Ordered.
So Ordered.
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