Ferreira-Plasencia v. Ruginski ( 2002 )


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  •       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
    
             United States Court of Appeals
                           For the First Circuit
    
    
    No. 01-2077
    
                         JULIAN FERREIRA-PLASENCIA,
    
                           Plaintiff, Appellant,
    
                                     v.
    
                           JOHN H. RUGINSKI, JR.,
                               CHRIS MARTINEZ,
    
                           Defendants, Appellees.
    
    
             APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                      FOR THE DISTRICT OF RHODE ISLAND
    
                  [Hon. Mary M. Lisi, U.S. District Judge]
    
    
                                   Before
    
                            Selya, Circuit Judge,
                      Campbell, Senior Circuit Judge,
                         and Lipez, Circuit Judge.
    
    
    
    
        Julian Ferreira-Plasencia on brief pro se.
        James Moretti on brief for appellees.
    
    
    
    
                                May 2, 2002
               Per Curiam.     Julian Ferreira-Plasencia, proceeding
    
    pro se, appeals from the district court’s grant of summary judgment
    
    to defendants John H. Ruginski, Jr. and Chris Martinez in this
    
    diversity-based legal malpractice suit. Below, the plaintiff
    
    claimed that the defendants, his former attorney and the attorney's
    
    legal assistant, failed to file a timely notice of appeal from an
    
    Immigration Judge’s denial of his application for a waiver of
    
    deportability. He further contended that the defendants did not
    
    advise him as to alternative methods to seek relief from
    
    deportation. Subsequent to the dismissal of his untimely appeal,
    
    Ferreira-Plasencia was deported. At some time thereafter, he re-
    
    entered the country, and was later convicted for illegal re-entry,
    
    8 U.S.C. § 1326.
    
               The district court adopted a magistrate judge’s report
    
    and recommendation and granted summary judgment to the defendants
    
    because Ferreira-Plasencia offered no evidence to establish that
    
    the defendants’ failure to file his notice of appeal in a timely
    
    fashion actually caused harm.      The court further found that
    
    Ferreira-Plasencia had not provided any expert testimony concerning
    
    the relevant standard of care for his claim that the defendants did
    
    not properly advise him of alternative avenues of relief from
    
    deportation.
    
    
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               Upon our de novo review, we find that the absence of
    
    evidence to support essential elements of Ferreira-Plasencia’s
    
    claims is fatal to his case. He offered no evidence to establish
    
    that the defendants' untimely filing of his notice of appeal caused
    
    him to be deported and subsequently convicted for illegal re-entry
    
    into the United States. He also failed to present expert testimony
    
    establishing the standard of care owed to him on his claim that
    
    defendants did not properly advise him as to alternative avenues
    
    for relief from deportation. Accordingly, the district court
    
    properly granted summary judgment.
    
               On appeal, Ferreira-Plasencia faults the district court
    
    for not sua sponte granting him a continuance, so he could obtain
    
    the testimony of an expert. He contends that Rule 56(f) of the
    
    Federal Rules of Civil Procedure required the court to either deny
    
    the motion for summary judgment or grant him a continuance. But
    
    he did not seek to invoke Rule 56(f) below, and we have stated that
    
    "in order to savor the balm of Rule 56(f), a party must move for
    
    a discovery continuance in a timely fashion." Mass. Sch. of Law
    
    at Andover, Inc. v. Am. Bar. Ass'n., 
    142 F.3d 26
    , 44 (1st Cir.
    
    1998)(internal quotation marks omitted). Not only did Ferreira-
    
    Plasencia fail to make a timely motion for a Rule 56(f)
    
    continuance, but he also failed to make any motion for any sort of
    
    continuance.
    
    
                                   -3-
               We add, moreover, that a movant must generally show
    
    diligence in conducting discovery. Simas v. First Citizens’ Fed.
    
    Credit Union, 
    170 F.3d 37
    , 45 n.4 (1st Cir. 1999).      Ferreira-
    
    Plasencia did not state what attempts he had made to obtain
    
    evidence to support his claim. Accordingly, we find no merit in
    
    his argument that the district court erred by not spontaneously
    
    granting him an unrequested continuance.
    
               Ferreira-Plasencia also argues, for the first time on
    
    appeal, that the district court should have given him "fair notice"
    
    of the requirements of Rule 56 of the Federal Rules of Civil
    
    Procedure and the consequences of failing to properly oppose such
    
    a motion. The magistrate judge’s report and recommendation clearly
    
    outlined these requirements, and (assuming, without deciding, that
    
    notice was required) we conclude that Ferreira-Plasencia thus
    
    received "fair notice" of the rule. Furthermore, because he did
    
    not object to the magistrate’s recommendation that summary judgment
    
    be granted to the defendants on the ground that he had no notice
    
    of the requirements of the rule, Ferreira-Plasencia has waived the
    
    argument. See Park Motor Mart, Inc. v. Ford Motor Co., 
    616 F.2d 603
     (1st Cir. 1980)(holding that the failure to file timely,
    
    specific objections to a magistrate’s report and recommendation
    
    constitutes waiver of the right to appeal the district court’s
    
    decision).
    
    
                                   -4-
             The district court’s grant of summary judgment to the
    
    defendants is affirmed.
    
    
    
    
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