Filed: Aug. 27, 2009
Latest Update: Feb. 21, 2020
Summary: Defendants, Appellees.claims in the Puerto Rico Commonwealth courts;, 4, Marrero does not challenge the district courts, conclusion that the Agreements forum selection clause is, mandatory, rather than permissive.not presented to the district court are deemed waived on appeal.
Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1517
MÁXIMA D. MARRERO,
Plaintiff, Appellant,
v.
RAFAEL D. ARAGUNDE, in his personal capacity and as Secretary of
Puerto Rico Department of Education, WALDO TORRES, in his
personal capacity and as Under Secretary, JENNIFER GLEASON-
ALTIERI, in her personal capacity and as Director of Legal
Affairs, LIZZETTE PILICH, in her personal capacity and as
Assistant Secretary for Human Resources, JOHN DOE, and JANE DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Selya, and Tashima,*
Senior Circuit Judge.
John Ward-Llambías, on brief for appellant.
Rosa Elena Pérez-Agosto, Assistant Solicitor General, Irene
S. Soroeta Kodesh, Solicitor General of Puerto Rico, on brief for
appellees.
August 27, 2009
*
Of the Ninth Circuit, sitting by designation.
TASHIMA, Senior Circuit Judge. Plaintiff Maxima D.
Marrero (“Marrero”) sued various Puerto Rico Department of
Education (“Department”) officials (collectively “Defendants”)
pursuant to 42 U.S.C. § 1983, alleging that they retaliated against
her on the basis of her political beliefs in violation of the First
and Fourteenth Amendments. The district court granted Defendants’
motion to dismiss, concluding that a forum selection clause in a
prior Settlement Agreement between Marrero and the Department
required that her claims be litigated in the Puerto Rico
Commonwealth courts. Marrero timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
affirm.
I. Background
Marrero has worked at the Department for more than twenty
years, most recently as the Director of the Office of Rules and
Regulations. She is an active member of the New Progressive Party
(“NPP”). In the course of her tenure, the Department’s leadership
shifted from NPP members to members of the Popular Democratic Party
(“PDP”). Marrero contends that Defendants are all members of the
PDP.
In 2004, Cesar A. Rey Hernandez, then Secretary of the
Department, recommended Marrero for a promotion (a
“reclassification” in the Department’s parlance). She alleges that
Rey’s staff failed to take any action on the recommendation.
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On December 7, 2004, Marrero filed an administrative
appeal before the Public Service Human Resources Appeals Commission
(“Commission”), alleging that the Department was unlawfully
refusing to promote her. On March 2, 2005, the Commission issued
a resolution approving a binding Settlement Agreement (“Agreement”)
between Marrero and the Department. The Agreement stipulated that
the Department had discriminated against Marrero, and provided that
it would promote her within fifteen days. Marrero, for her part,
agreed to waive all claims against the Department and its officers
that could arise from facts related to the Agreement. The
Agreement also provides that if any Department officials failed to
comply with its terms, “it will be deemed an admission of a civil
rights violation, and the case will be submitted to the
jurisdiction of the Superior Court, San Juan Part” for an
assessment of damages.
On January 17, 2007, Marrero sued the Department in the
Superior Court of San Juan. In her complaint, Marrero alleged that
Department officials had breached the Agreement, mistreated and
humiliated her, and deprived her of the resources necessary to
fulfill the responsibilities of her position.1
Approximately six months later, Marrero filed the present
action in federal district court. Her federal complaint alleges
1
According to Defendants, the case was dismissed for lack
of proper service, and is now pending certiorari review before the
Puerto Rico Supreme Court.
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violations of her First and Fourteenth Amendment rights and seeks
damages as well as declaratory and injunctive relief. She contends
that Department officials refused to promote her, mistreated and
humiliated her, subjected her to irregular disciplinary actions,
and deprived her of the resources and personnel necessary to
fulfill the duties of her position. Department officials took all
of the above retaliatory actions, Marrero alleges, because of her
NPP affiliation.
Defendants filed a series of motions to dismiss, or in
the alternative, to stay the case. They contended that: (1) the
Agreement’s forum selection clause required Marrero to litigate her
claims in the Puerto Rico Commonwealth courts; (2) the statute of
limitations had run on her political discrimination claims; (3) the
court should abstain under the Colorado River abstention doctrine,
see Colo. River Water Conservation Dist. v. United States, 424 U.S.
800, 814-16 (1976) (holding that, in limited circumstances, federal
courts should abstain from deciding a case when there are related
proceedings pending in state court); (4) her claims were barred by
the Eleventh Amendment; and (5) the complaint failed to state a
claim on which relief could be granted. The district court then
ordered Marrero to show cause why her complaint should not be
dismissed on the basis of the Agreement’s forum selection clause.
After receiving briefing from all parties on the issue, the court
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granted Defendants’ motion and dismissed the case with prejudice.
Marrero timely appealed.2
II. Discussion
We review the dismissal of Marrero’s complaint de novo,
assuming the truth of all well-pleaded facts and construing all
reasonable inferences in her favor. Fitzgerald v. Harris, 549 F.3d
46, 52 (1st Cir. 2008).
In granting the motion to dismiss, the district court
concluded that the claims set forth in Marrero’s complaint all
“stem from the [Department’s] alleged refusal to comply with the
Settlement Agreement,” and thus, the Agreement’s forum selection
clause requires that her claims be litigated in local court.3
A mandatory forum selection clause carries a “strong
presumption of enforceability.” Rivera v. Centro Medico de Turabo,
Inc., No. 07-2657, 2009 WL 2343132, at *6 (1st Cir. Jul. 31,
2009).4 Federal courts will enforce such clauses “unless the
2
Marrero also filed an untimely motion for
reconsideration, which the district court denied. She does not
appeal the denial of the motion for reconsideration, and thus we do
not review it here.
3
“[W]hen ‘a complaint’s factual allegations are expressly
linked to – and admittedly dependent upon – a document (the
authenticity of which is not challenged),’ then the court can
review it upon a motion to dismiss.” Alternative Energy, Inc. v.
St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 34 (1st Cir. 2001)
(quoting Beddall v. State St. Bank & Trust Co.,
137 F.3d 12, 17
(1st Cir. 1998)).
4
Marrero does not challenge the district court’s
conclusion that the Agreement’s forum selection clause is
mandatory, rather than permissive. See Rivera, 2009 WL 2343132, at
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resisting party can show ‘that enforcement would be unreasonable
and unjust, or that the clause was invalid for such reasons as
fraud or overreaching . . . [or that] enforcement would contravene
a strong public policy of the forum in which suit is brought,
whether declared by statute or by judicial decision.’” Id.
(quoting M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 15
(1972)).
Marrero does not argue that the Agreement’s forum
selection clause is invalid, or that its enforcement would be
unreasonable. The crux of her argument on appeal seems to be that
some of the instances of political discrimination described in her
complaint are factually unrelated to the Department’s alleged
failure to comply with the Agreement. These particular acts of
discrimination, she contends, go beyond the Department’s refusal to
promote her, and thus are not governed by the Agreement and its
forum selection clause.
Marrero, however, did not raise this argument before the
district court. Indeed, despite a clear prompt, her response to
the court’s order to show cause does not mention the forum
selection clause at all, much less comment on its scope. Arguments
not presented to the district court are deemed waived on appeal.
See Cohen v. Gen. Motors Corp. (In re New Motor Vehicles Canadian
*5 (describing the difference between a mandatory and a permissive
forum selection clause). We thus assume, without deciding, that
the district court did not err in deeming the clause mandatory.
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Exp. Antitrust Litig.), 533 F.3d 1, 6 (1st Cir. 2008) (pointing out
that “plaintiffs failed to raise this argument before the district
court and thus have waived it” (citing Teamsters Local No. 59 v.
Superline Transp. Co.,
953 F.2d 17, 21 (1st Cir. 1992))).
Because Marrero waived the only argument that she now
tenders in her opening brief on appeal that challenges the basis
for the decision below, we affirm the judgment of the district
court.5 Further, because we decide this case on grounds of waiver,
we take no view as to the correctness of the district court’s
interpretation or application of the Agreement’s forum selection
clause.
AFFIRMED.
5
As noted, the district court’s dismissal was “with
prejudice.” We construe that term as precluding the refiling of
this action (or the same claims) in federal court, but not as a bar
to refiling in the forum specified in the Agreement’s forum
selection clause.
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