Comite Fiestas de la Calle v. Cruz , 925 F.3d 528 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1723
COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC.,
Plaintiff, Appellant,
v.
CARMEN YULÍN CRUZ SOTO, in her official and personal capacities;
MUNICIPALITY OF SAN JUAN,
Defendants, Appellees,
SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC.; ALFREDO
CARRASQUILLO,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Jane A. Becker Whitaker, with whom Law Offices of Jane Becker
Whitaker was on brief, for appellant.
Héctor Benítez Arraiza and Patricia Rivera MacMurray, with
whom Quiñones, Arobona & Candelario, PSC, Giselle M. Martínez-
Velázquez, and Raul S. Mariani-Franco were on brief, for appellees.
May 29, 2019
KAYATTA, Circuit Judge. The Comité Fiestas de la Calle
San Sebastián, Inc. ("the Comité") is a non-profit corporation
that promotes and helps run the Fiestas de la Calle San Sebastián
festival in San Juan, Puerto Rico. This lawsuit arises from the
Comité's unhappiness with its diminished assigned role as vendor
and presenter at the 2015 Fiestas de la Calle San Sebastián
celebration. After discovery, the district court granted summary
judgment for San Juan Mayor Carmen Yulín Cruz and the municipality
of San Juan on the Comité's trademark-infringement and First
Amendment retaliation, political discrimination, and religious
discrimination claims. We now affirm.
I.
We first survey the pertinent facts. The Fiestas de la
Calle San Sebastián is a four-day festival held in Old San Juan.
The Comité takes part in organizing and running the festival in
conjunction with the municipality of San Juan and likens its role
to that of the New York Road Runners in planning and orchestrating
the New York City Marathon. Specifically, it "promote[s]
traditional Puerto Rican music and culture, particularly the
celebration of Saint [Sebastián]" at the festival. The Comité
purports to be the successor organization of an older group, the
Vecinos de la Calle San Sebastián, which revitalized the festival.
In 2014, the Comité -- which considers itself an
apolitical entity -- publicly criticized Mayor Cruz for
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deemphasizing the religious and traditional aspects of the
celebration and for "turning historic Old San Juan into a big bar
with contests to see who could drink the most." The Comité alleges
that the municipality and Mayor Cruz, who is a member of the
Popular Democratic Party, retaliated against the Comité in various
ways in response to this criticism. Specifically, the Comité
claims that the municipality awarded it a less advantageous vendor
contract than in previous years; imposed upon the Comité onerous
certification requirements that it did not enforce against two
other vendors with connections to the Popular Democratic Party;
and granted a coveted entertainment timeslot, during which the
Comité had previously presented traditional Puerto Rican music, to
a donor of the Popular Democratic Party.
The Comité brought First Amendment political
discrimination, retaliation, and religious discrimination claims
as well as counts for trademark infringement, alleging that the
Comité owns the "Fiestas de la Calle San Sebastián" mark. After
discovery, the district court granted summary judgment for Cruz
and the municipality on all counts. Comité Fiestas de la Calle
San Sebastián, Inc. v. Cruz, 207 F. Supp. 3d 129, 148 (D.P.R.
2016). The Comité then filed a Rule 59(e) motion for
reconsideration. The Comité's accompanying memorandum reasserted
its position that the record precluded summary judgment on the
Comité's political discrimination, trademark, and libel claims.
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In support of its trademark-infringement claims, the Comité also
brought new evidence from the U.S. Patent and Trademark Office
(PTO) in the form of a preliminary authorization to publish the
"Fiestas de la Calle San Sebastián" mark. Comité Fiestas de la
Calle San Sebastián, Inc. v. Cruz, No. 14-1929 (FAB), 2017 WL
6888519, at *1 (D.P.R. May 19, 2017). The district court denied
the motion, id. at *2, and this appeal followed.
II.
A.
We first address our jurisdiction to consider the
Comité's timely appeal. Federal Rule of Appellate
Procedure 3(c)(1)(B) requires that a notice of appeal "designate
the judgment, order, or part thereof being appealed." While
"[c]ourts will liberally construe the requirements of Rule 3," its
strictures "are jurisdictional in nature, and their satisfaction
is a prerequisite to appellate review." Smith v. Barry, 502 U.S.
244, 248 (1992).
The Comité's notice of appeal references only the
district court's denial of its Rule 59(e) motion for
reconsideration. The Comité's opening brief on appeal, however,
solely challenges portions of the underlying summary judgment
order. The government defendants argue that this misalignment
strips us of our ability to reach the merits of the district
court's summary judgment order.
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Our circuit's Rule 3(c)(1)(B) precedents certainly
accommodate a robust application of waiver in circumstances such
as this one. We have several times ruled that we do not have
jurisdiction to review an underlying judgment when the notice of
appeal designates only the district court's denial of a motion for
reconsideration. See Zukowski v. St. Lukes Home Care Program, 326
F.3d 278, 282 (1st Cir. 2003); Mariani-Girón v. Acevedo-Ruiz, 945
F.2d 1, 3 (1st Cir. 1991); see also Wright & Miller, Fed. Practice
& Procedure § 3949.4 (4th ed. 2018). However, our case law also
has some looseness in its joints. We have recognized, for
instance, that "courts have some latitude to consider other grounds
originally urged against the underlying dismissal, especially
where the issues on original dismissal and the reconsideration
order overlap or are intertwined." Díaz Aviation Corp. v. Airport
Aviation Servs., Inc., 716 F.3d 256, 262 (1st Cir. 2013) (quoting
McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 213 (1st Cir.
2012)); see generally Wright & Miller, supra, § 3949.4 ("[C]ourts
have often been willing to rescue such appellants by inferring
that they meant to appeal from the underlying judgment . . . .").
Accordingly, in Díaz Aviation, we considered the merits
of a district court's underlying judgment when the notice of appeal
only referenced the court's denial of a motion for reconsideration
because the "motion for reconsideration largely rehashed the
arguments . . . made in opposition to the original judgment." 716
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F.3d at 262. Under similar circumstances, in Town of Norwood v.
New England Power Company, we addressed a challenge to the district
court's motion-to-dismiss order because the appellant's motion for
reconsideration "cover[ed] . . . more or less the same points . . .
earlier made to the district court" on the motion to dismiss. 202
F.3d 408, 415 (1st Cir. 2000).
Here, as in Díaz Aviation and Town of Norwood, the
Comité's Rule 59(e) motion (with the sole exception of the
reference to new evidence on the trademark claim) raised "mere[]
elaborations of claims already presented." Comité Fiestas de la
Calle San Sebastián, Inc., 2017 WL 6888519, at *1 n.2.
Specifically, the Comité largely rehashed the same arguments as to
its political discrimination and trademark claims that it raised
in its opposition to summary judgment and that it now seeks to
raise before us on appeal. And, as far as these claims are
concerned, a challenge to the denial of its motion for
reconsideration and a challenge to the entry of summary judgment
for the government defendants turn on the same issue of law --
that is, whether a de novo review of the record supported the
district court's conclusions that there is no genuine issue of
material fact and the government defendants are entitled to
judgment as a matter of law. See, e.g., Best Auto Repair Shop,
Inc. v. Universal Insur. Grp., 875 F.3d 733, 737 (1st Cir. 2017)
("We 'normally review a district court's decision to grant or deny
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a motion for reconsideration for abuse of discretion.' But here,
as 'the parties' arguments [are] directed to the underlying
substantive issue (the propriety vel non of summary judgment)
rather than the procedural issue (the desirability vel non of
reconsideration),' we review de novo the summary judgment ruling."
(citation omitted) (quoting Santiago v. Puerto Rico, 655 F.3d 61,
67 (1st Cir. 2011))), cert. denied, 139 S. Ct. 119 (2018).
Additionally -- and importantly -- deeming the notice of
appeal sufficient to preserve for appellate review the overlapping
issues of law raised by the summary judgment ruling and the
Rule 59(e) ruling will cause no unfair prejudice to the appellees
in this case or to the administration of the appeal. The appellees
were timely apprised of the Comité's appeal. They point to no
reliance of any type on the substance of the notice. And both
parties have fully briefed the merits in ordinary course. As the
Supreme Court has observed, "[i]t is too late in the day and
entirely contrary to the spirit of the Federal Rules of Civil
Procedure" to favor dispositions based on "mere technicalities."
Foman v. Davis, 371 U.S. 178, 181 (1962); see also Chamorro v.
Puerto Rican Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002) ("[B]oth
sides have fully briefed the merits, and undertaking appellate
review of the original order of dismissal would not unfairly
prejudice [appellee]."). Moreover, had the notice more wisely
appealed the "final judgment," the defendants would have learned
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exactly which orders the Comité wished to challenge in its appeal
no sooner than they did here. See Denault v. Ahern, 857 F.3d 76,
81–82 (1st Cir. 2017) (explaining that an appeal of the final
judgment also appeals all interlocutory orders).
That the Comité's Rule 59(e) motion also included new
argumentation as to its trademark claim should not strip us of our
jurisdiction over these other, preserved arguments. In Biltcliffe
v. CitiMortgage, Inc., we found that we lacked jurisdiction over
a plaintiff's challenge to the district court's entry of summary
judgment when his notice of appeal only referenced his motion for
reconsideration and his memorandum in support of reconsideration
advanced additional arguments not raised at summary judgment. 772
F.3d 925, 929–30 (1st Cir. 2014). Importantly, we did so in part
because we construed the plaintiff's opening appellate brief as
only advancing arguments directed at the district court's denial
of the motion for reconsideration, see id. ("To the extent
[Biltcliffe] revisits certain substantive bases for the district
court's summary judgment order, he argues only that the court made
manifest errors of law and, as a result, abused its discretion
. . . ."), vitiating any claim that the defendant had proper notice
of the plaintiff's intent to appeal the entry of summary judgment.
Here, by contrast, the plaintiff's opening appellate brief plainly
and exclusively sought direct review of the summary judgment ruling
under Rule 56. Accordingly, we hold that the Comité's appeal
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fairly encompasses both the Rule 59(e) ruling and those parts of
the district court's summary judgment order that are addressed in
the Comité's memorandum in support of its Rule 59(e) motion (i.e.,
the Comité's political discrimination and trademark-infringement
claims).
Despite our willingness to broadly construe the notice
of appeal, the Comité has nonetheless failed to preserve for our
review every claim that it includes in its appellate briefs. The
Comité's First Amendment retaliation claim was not raised at all
in its motion for reconsideration, so our dispensation for
overlapping arguments cannot save that claim. And while the
Comité's appeal of the Rule 59(e) motion plainly sufficed to
preserve the Comité's argument that new evidence from the PTO
supported its trademark claim, the Comité chose not to raise that
argument in its main brief on appeal. Hence, this claim is waived.
See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29
(1st Cir. 2015).
B.
We finally turn to the merits of the preserved rulings.
The Comité's political discrimination claim rests on the
allegation that the government defendants gave more favorable
organizational roles and contracts to two other event organizers
due to their political support for Mayor Cruz and the Popular
Democratic Party. The Comité also alleges that the government
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defendants subjected it to a more rigorous permitting process than
it did these political supporters. The district court nipped this
claim in the bud on summary judgment because the Comité pointed to
no evidence that the government defendants knew the political
affiliation of the Comité or its members. Comité Fiestas de la
Calle San Sebastián, Inc., 207 F. Supp. 3d at 144. The court's
legal premise aptly captures the law: A plaintiff bringing a claim
that a government entity discriminated against it based on
political affiliation need generally prove, as a starter, that the
defendant was aware of the plaintiff's relevant affiliation (or
lack thereof). See Barry v. Moran, 661 F.3d 696, 704 (1st Cir.
2011); Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir.
2010). So, the only question for us is whether the record lacks
such evidence.
The Comité points to four pages of the record that it
claims undermine the district court's assessment of the summary-
judgment record. But as best as we can tell from those pages,
they show only that, during discovery, it became clear that the
Comité itself is apolitical and that the political activities of
its principal members remain unknown. There is no cognizable
evidence that the pertinent city officials knew these facts when
they made the challenged decisions.
In its brief on appeal, the Comité asserts that Mayor
Cruz's "preferred contractors all donated to Mayor Cruz's
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campaign," evidencing the government defendants' hostility toward
the Comité for "fail[ing] to show public support for Mayor Cruz."
Certainly, a plaintiff can support a prima facie case of political
discrimination by showing that its "decision not to associate with
a political party or faction" was a substantial or motivating
factor in an employer's decision to take an adverse employment
action against the plaintiff. See Barry, 661 F.3d at 703–04. On
appeal, however, the Comité points to no evidence that those
deciding to favor the preferred contractors knew that these
contractors supported the Mayor or her political party. Rather,
the Comité points only to evidence produced in discovery
demonstrating that the contractors admitted to voting for or
supporting the Popular Democratic Party at some unknown time in
the past and that one acknowledged donating to the Mayor after the
decisions at issue here had already been made. On such a record,
it takes too much speculation to infer that those deciding to favor
the preferred contractors considered them political allies. We
therefore cannot conclude that the district court erred in
dismissing the Comité's political discrimination claim on such a
record. See Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir.
1994) ("Without more, a nonmoving plaintiff-employee's unsupported
and speculative assertions regarding political discrimination will
not be enough to survive summary judgment.").
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As to the Comité's trademark claim, its opening brief
points to nothing in the record establishing that the "Fiestas de
la Calles San Sebastián" term has gained the secondary meaning
required to obtain trademark protection. See Bos. Beer Co., Ltd.
v. Slesar Bros. Brewing Co., 9 F.3d 175, 181 (1st Cir. 1993)
(explaining that descriptive terms are entitled to trademark
protection only upon attaining secondary meaning). And even were
we to consider the affidavits the Comité relies upon for this point
in its reply brief, none even hints that the public associates
this term with a single commercial source. Bos. Duck Tours, LP v.
Super Duck Tours, LLC, 531 F.3d 1, 13 (1st Cir. 2008) (observing
that establishing secondary meaning requires proof that the
"public associates the term or phrase not only with a specific
feature or quality, but also with a single commercial source").
Thus, because the Comité has failed to show that any
"trial[-]worthy issue persists" as to its political discrimination
and trademark-infringement claims, Iverson v. City of Bos., 452
F.3d 94, 98 (1st Cir. 2006), the district court did not err in
entering summary judgment for the government defendants on those
claims.
III.
For the foregoing reasons, we affirm the district
court's entry of summary judgment for the government defendants
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and the district court's denial of the Comité's motion for
reconsideration.
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