Nieves-Romero v. United States ( 2013 )


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  •           United States Court of Appeals
                          For the First Circuit
    
    No. 12-1193
    
                      JOSÉ A. NIEVES-ROMERO ET AL.,
    
                         Plaintiffs, Appellants,
    
                                    v.
    
                          UNITED STATES ET AL.,
    
                          Defendants, Appellees.
    
    
              APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                     FOR THE DISTRICT OF PUERTO RICO
    
             [Hon. Daniel R. Domínguez, U.S. District Judge]
    
    
    
                                  Before
    
                       Torruella, Selya and Lipez,
                             Circuit Judges.
    
    
    
         Carlos Rodríguez García, with whom Rodríguez García PSC was on
    brief, for appellants.
         Isabel Muñoz-Acosta, Assistant United States Attorney, with
    whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
    Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
    Division, and Julia M. Meconiates, Assistant United States
    Attorney, were on brief, for appellees.
    
    
    
                               May 3, 2013
               SELYA, Circuit Judge.    When a dangerous condition exists
    
    on commercial premises and causes injury to a business invitee,
    
    tort liability typically depends on whether the owner/occupier knew
    
    or reasonably should have known of the existence of the dangerous
    
    condition.    In the case at hand, the district court concluded that
    
    the summary judgment record contained no significantly probative
    
    evidence of the defendant's knowledge (actual or constructive) of
    
    the dangerous condition and entered judgment accordingly.      After
    
    careful consideration, we affirm.
    
    I.   BACKGROUND
    
               For ease in exposition, we treat this case as one brought
    
    solely by José Nieves-Romero against the United States.1    We start
    
    by rehearsing the facts and the travel of the case.      Our task is
    
    simplified by the procedural posture in which this appeal arises.
    
               When the United States moved for summary judgment, it
    
    accompanied its motion with a statement of material facts not in
    
    dispute.     See D.P.R. Civ. R. 56(b).    The plaintiff opposed the
    
    motion but did not proffer any counter-statement of material facts.
    
    See D.P.R. Civ. R. 56(c).      Thus, the district court correctly
    
    deemed the government's statement of material facts admitted.    See
    
    
    
         1
           The complaint lists additional plaintiffs (Nieves-Romero's
    wife and their conjugal partnership) and additional defendants
    (including federal agencies).     But the claims of the other
    plaintiffs are wholly derivative, and the other defendants are
    superfluous. See Armor Elev. Co. v. Phoenix Urban Corp., 
    655 F.2d 19
    , 22 (1st Cir. 1981).
    
                                       -2-
    D.P.R. Civ. R. 56(e) (explaining that "[f]acts contained in a
    
    supporting or opposing statement of material facts . . . shall be
    
    deemed admitted unless properly controverted"); see also Ruiz
    
    Rivera v. Riley, 
    209 F.3d 24
    , 27-28 (1st Cir. 2000) (stating that
    
    when a local rule requires all parties to accompany their summary
    
    judgment papers with statements of material facts and the movant
    
    complies but the nonmovant does not, the facts contained in the
    
    movant's statement must be accepted as true for summary judgment
    
    purposes); Ayala-Gerena v. Bristol Myers-Squibb Co., 
    95 F.3d 86
    , 95
    
    (1st Cir. 1996) (same).       We, too, draw the facts from that
    
    statement.
    
               On July 28, 2009, the plaintiff, who uses a wheelchair,
    
    was on the premises of the Veterans Affairs (VA) Hospital in San
    
    Juan.   While awaiting x-ray results, he repaired to a handicapped-
    
    accessible public restroom.    As he attempted to transfer himself
    
    from his wheelchair onto the toilet, the toilet seat came loose and
    
    he fell to the floor.    He sustained injuries as a result of the
    
    fall.
    
               After filing an administrative claim, see 28 U.S.C.
    
    § 2675(a), the plaintiff sued the United States under the Federal
    
    Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680.        He
    
    
    
    
                                    -3-
    averred that the VA had negligently maintained the restroom and
    
    that the loose toilet seat provoked his fall.2
    
                On August 17, 2011, the United States moved for summary
    
    judgment.    The plaintiff opposed the motion.           Discovery closed on
    
    December 9, 2011.      At that time, the government's fully briefed
    
    motion for summary judgment was pending unresolved.
    
                Two days later, the plaintiff moved to reopen discovery.
    
    In support, his counsel described domestic difficulties that had
    
    hampered    his   access   to   case   files    kept    in    his    home   office
    
    (including the file in this case).           The district court granted the
    
    request and extended the close of discovery to January 30, 2012.
    
                On January 5, 2012, the district court granted summary
    
    judgment.    The court determined that "there is simply no evidence
    
    in the record to support that [the VA] had knowledge of the
    
    dangerous condition, the loose toilet seat."             The plaintiff moved
    
    for reconsideration, but to no avail. This timely appeal followed.
    
    II.   ANALYSIS
    
                We    subdivide     our     analysis       into    two     segments,
    
    corresponding to the plaintiff's paired arguments.
    
    
    
    
          2
           The United States is the proper defendant in an FTCA case.
    See 28 U.S.C. § 2679(a). Nevertheless, we sometimes use terms such
    as "the government" or "the VA" as a shorthand for "the United
    States."
    
                                           -4-
                             A.   Summary Judgment.
    
              We   review   an    order    for    summary    judgment   de   novo,
    
    evaluating the facts and all reasonable inferences therefrom in the
    
    light most flattering to the nonmoving party.             Houlton Citizens'
    
    Coal. v. Town of Houlton, 
    175 F.3d 178
    , 184 (1st Cir. 1999).               We
    
    will affirm the entry of summary judgment only if the record
    
    discloses no genuine issue of material fact and demonstrates that
    
    the moving party is entitled to judgment as a matter of law.               See
    
    Fed. R. Civ. P. 56(a).
    
              "This standard is favorable to the nonmoving party, but
    
    it does not give him a free pass to trial."             Hannon v. Beard, 
    645 F.3d 45
    , 48 (1st Cir. 2011).     To be genuine, a factual dispute must
    
    be built on a solid foundation — a foundation constructed from
    
    materials of evidentiary quality.            See Tropigas de P.R., Inc. v.
    
    Certain Underwriters at Lloyd's of London, 
    637 F.3d 53
    , 56 (1st
    
    Cir. 2011); Garside v. Osco Drug, Inc., 
    895 F.2d 46
    , 48 (1st Cir.
    
    1990).   "[C]onclusory allegations, empty rhetoric, unsupported
    
    speculation, or evidence which, in the aggregate, is less than
    
    significantly probative" will not suffice to ward off a properly
    
    supported summary judgment motion.           Rogan v. City of Boston, 
    267 F.3d 24
    , 27 (1st Cir. 2001).
    
              Against this backdrop, we turn to the record before us.
    
    As a sovereign nation, the United States is generally immune from
    
    tort liability except to the extent that it consents to be sued.
    
    
                                          -5-
    See Dynamic Image Techs., Inc. v. United States, 
    221 F.3d 34
    , 39
    
    (1st Cir. 2000).       The FTCA comprises a limited waiver of federal
    
    sovereign immunity, which allows the government to be held liable
    
    for certain tortious acts and omissions.                See Limone v. United
    
    States, 
    579 F.3d 79
    , 88 (1st Cir. 2009).                      It specifies that
    
    liability determinations are to be informed by "the law of the
    
    place   where    the   act       or   omission   occurred."      See    28   U.S.C.
    
    § 1346(b)(1).      Here, then, we look to Puerto Rico tort law.
    
               Article 1802 of the Civil Code imposes liability on "[a]
    
    person who by an act or omission causes damage to another through
    
    fault or negligence."        P.R. Laws Ann. tit. 31, § 5141.           A plaintiff
    
    suing for negligence under Article 1802 must establish four things:
    
    a duty requiring the defendant to conform to a certain standard of
    
    care, a breach of that duty, proof of damage, and a causal
    
    connection between the negligence and the damage.                See Sociedad de
    
    Gananciales v. González Padín Co., 
    17 P.R. Offic. Trans. 111
    , 125
    
    (1986).   In a premises liability case, fault ordinarily depends on
    
    knowledge.      With rare exceptions (not relevant here), a showing of
    
    negligence      requires     a    showing   of   the   defendant's      actual   or
    
    constructive notice of the dangerous condition. See Woods-Leber v.
    
    Hyatt Hotels of P.R., Inc., 
    124 F.3d 47
    , 50 n.5 (1st Cir. 1997);
    
    Mas v. United States, 
    984 F.2d 527
    , 530 (1st Cir. 1993); Cotto v.
    
    Consol. Mut. Ins. Co., 
    16 P.R. Offic. Trans. 786
    , 794 (1985).
    
    
    
    
                                              -6-
                Before us, the plaintiff challenges the district court's
    
    determination that he failed to adduce evidence sufficient to
    
    permit a finding that the VA had either actual or constructive
    
    knowledge of the loose toilet seat.       This challenge lacks force.
    
                The plaintiff concedes — as he must — that the summary
    
    judgment record is barren of any evidence of actual knowledge.        He
    
    asseverates,    however,   that   there   is   significantly   probative
    
    evidence of constructive knowledge, that is, circumstances that
    
    would suffice to support a finding that the VA should have known of
    
    the loose toilet seat before the mishap occurred.       We explore this
    
    asseveration.
    
                At the time material hereto, the VA had a contract with
    
    DB&W Services Corporation (DB&W) for cleaning and maintenance
    
    services at the VA Hospital.         On the day of the plaintiff's
    
    accident, an employee of DB&W, Ivelisse López, cleaned the restroom
    
    in which the plaintiff fell.        As part of her duties, she was
    
    assigned to clean all fixtures in the lavatory, including the
    
    toilet, every half-hour.     There is no evidence in the record from
    
    which we can tell when, prior to the accident, she last cleaned the
    
    restroom.    By the same token, there is no evidence from which a
    
    rational factfinder could deduce that the toilet seat was loose
    
    during the last of her visits.      The record suggests the contrary;
    
    it discloses that DB&W received no report of any problems with the
    
    toilet seat on the day of the accident.
    
    
                                       -7-
              Another entity, the Environment of Care Team (EOC),
    
    performed scheduled inspections of the restroom (including the
    
    toilet facilities) at roughly four-month intervals.        The EOC
    
    carried out such an inspection on June 5, 2009 and found nothing
    
    amiss.
    
              The plaintiff contends that because the hospital is a
    
    high-traffic area, the restroom should have been inspected more
    
    often than once every four months.      The failure to conduct more
    
    frequent inspections, he says, warrants an inference of negligence.
    
    This ipse dixit is profoundly flawed.
    
              Even if the restroom facilities were inspected on a
    
    biweekly schedule as the plaintiff advocates, there is no basis for
    
    a finding that the defect about which the plaintiff complains would
    
    have been discovered in time to prevent the accident.     For aught
    
    that appears, the toilet seat could have become unmoored minutes
    
    before the plaintiff's fall.
    
              The upshot is that the record contains no significantly
    
    probative evidence as to when the dangerous condition arose.
    
    Consequently, the plaintiff's claim that the VA was on constructive
    
    notice of the defect is without foundation.     See Gomez v. Stop &
    
    Shop Supermkt. Co., 
    670 F.3d 395
    , 397-98 (1st Cir. 2012) (affirming
    
    summary judgment and stating that it "is a conventional approach to
    
    premises liability" to require a plaintiff to "prove both that a
    
    dangerous condition existed and that [the defendant] had notice,
    
    
                                    -8-
    actual or constructive, of the dangerous condition but took no
    
    corrective    action");    Cotto,    16     P.R.    Offic.   Trans.     at   795-96
    
    (concluding that no liability could attach absent evidence tending
    
    to   show that    defendant    had   notice        of existence    of   dangerous
    
    condition); see also McCarthy v. Nw. Airlines, Inc., 
    56 F.3d 313
    ,
    
    315 (1st Cir. 1995) (explaining that a party opposing summary
    
    judgment cannot rely on the absence of evidence, but must "point to
    
    specific facts that demonstrate the existence of an authentic
    
    dispute").
    
                 In an effort to deflect the thrust of this reasoning, the
    
    plaintiff points to evidence of measures taken to repair the toilet
    
    after his accident.       The law is clear, however, that evidence of
    
    subsequent remedial measures is inadmissible to prove negligence.
    
    See Fed. R. Evid. 407.
    
                 The plaintiff seeks to bring his case within the confines
    
    of an isthmian exception to this rule.              He notes that evidence of
    
    subsequent remedial measures may be admitted to prove "ownership,
    
    control, or the feasibility of precautionary measures," id.; and he
    
    argues that the evidence is admissible here to show the VA's
    
    control over the restroom.
    
                 This is pure sophistry.        In this case, the VA's control
    
    over   the   restroom   is    not    in   dispute,      so   the   exception    is
    
    inapplicable. And — contrary to the plaintiff's importunings — the
    
    fact that the VA repaired the toilet after the accident does not
    
    
                                          -9-
    establish a presumption of constructive notice of the dangerous
    
    condition.      Cf. Raymond v. Raymond Corp., 
    938 F.2d 1518
    , 1525 (1st
    
    Cir. 1991) (concluding that evidence of post-accident repairs
    
    "ha[d]    little        bearing     on   whether    or    not   [a    product]     was
    
    unreasonably dangerous" at the time of manufacture).
    
                   That ends this aspect of the matter.                Simply put, the
    
    summary judgment record contains no evidentiary support for the
    
    plaintiff's bare allegation that the VA, prior to the accident, had
    
    either actual or constructive knowledge of the loose toilet seat.
    
    It follows inexorably, as night follows day, that a rational
    
    factfinder could not conclude that the VA breached its duty of care
    
    in the circumstances of this case.                 See Woods-Leber, 124 F.3d at
    
    51-52 (affirming summary judgment where record failed to show that
    
    hotel    had    actual      or    constructive     knowledge    of    existence     of
    
    dangerous condition).
    
                          B.    Effect of Discovery Extension.
    
                   The plaintiff has a fallback position: he complains that
    
    the district court should not have ruled on the summary judgment
    
    motion prior to the expiration of the extended discovery period.
    
    We   review     the   district      court's    decision    to   proceed    with the
    
    adjudication       of      the    summary    judgment     motion     for   abuse    of
    
    discretion.       See Vélez v. Awning Windows, Inc., 
    375 F.3d 35
    , 41
    
    (1st Cir. 2004).
    
    
    
    
                                                -10-
              We discern no abuse of discretion.            To begin, the fact
    
    that discovery is still open does not bar a district court from
    
    resolving a fully briefed summary judgment motion.                 See, e.g.,
    
    Dulany v. Carnahan, 
    132 F.3d 1234
    , 1238-39 (8th Cir. 1997); King v.
    
    Cooke, 
    26 F.3d 720
    , 725-26 (7th Cir. 1994); see also Fla. Power &
    
    Light Co. v. Allis Chalmers Corp., 
    893 F.2d 1313
    , 1316 (11th Cir.
    
    1990) (explaining that "it would be inappropriate to limit summary
    
    judgment to cases where discovery is complete in light of the
    
    valuable role served by summary judgment and the commitment of
    
    discovery issues to the sound discretion of the trial judge"
    
    (internal quotation marks omitted)).
    
              Here,    moreover,     the   plaintiff's     request     to   reopen
    
    discovery was not coupled with a request to withhold adjudication
    
    of the pending summary judgment motion.             Nor did the plaintiff
    
    inform the district court, at any time prior to the granting of
    
    summary judgment, that his discovery-extension request was tied to
    
    the pending summary judgment motion.
    
              Indeed, the timing of the plaintiff's motion to extend
    
    the discovery period suggests the absence of any link to the
    
    summary judgment motion.        The discovery-extension motion was not
    
    filed until more than two months after the plaintiff filed his
    
    opposition to summary judgment.         The new motion did not refer to
    
    summary judgment    at   all,    nor   did   it   suggest   that   additional
    
    discovery would bolster the plaintiff's ability to prove liability.
    
    
                                       -11-
    It is, therefore, unsurprising that the district court granted the
    
    discovery-extension motion by a simple docket entry, which made no
    
    reference to the pending summary judgment motion.
    
              To cinch matters, Federal Rule of Civil Procedure 56(d)
    
    supplies a ready mechanism for a party to obtain more time to
    
    gather facts necessary to oppose a motion for summary judgment.3
    
    See Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 326 (1986) (explaining
    
    that "[a]ny potential problem with [a] premature [motion for
    
    summary judgment] can be adequately dealt with under [this rule]").
    
    It provides, in relevant part, that if a party opposing summary
    
    judgment shows that "for specified reasons, [he] cannot present
    
    facts essential to justify [his] opposition," the district court
    
    may grant appropriate relief.       Fed. R. Civ. P. 56(d).     When
    
    properly deployed, this safety net guards against precipitous
    
    grants of summary judgment.   See Rivera-Torres v. Rey-Hernández,
    
    
    502 F.3d 7
    , 10 (1st Cir. 2007).
    
              For present purposes, it is important to emphasize that
    
    Rule 56(d) is not self-executing.     A party seeking the shelter of
    
    the rule must invoke it.   See Jones v. Secord, 
    684 F.3d 1
    , 6 (1st
    
    Cir. 2012); C.B. Trucking, Inc. v. Waste Mgmt., Inc., 
    137 F.3d 41
    ,
    
    
         3
           Rule 56(d) was formerly Rule 56(f). This change in taxonomy
    is of no moment; the textual differences between current Rule 56(d)
    and former Rule 56(f) are purely stylistic. See Fed. R. Civ. P. 56
    advisory committee's note; see also Godin v. Schencks, 
    629 F.3d 79
    ,
    90 n.19 (1st Cir. 2010). Thus, case law developed under former
    Rule 56(f) remains controlling, and we cite to it where applicable.
    See Jones v. Secord, 
    684 F.3d 1
    , 5 n.2 (1st Cir. 2012).
    
                                   -12-
    44 (1st Cir. 1998).       A party cannot have two bites at the cherry:
    
    he ordinarily cannot oppose a summary judgment motion on the merits
    
    and, after his opposition is rejected, try to save the day by
    
    belatedly invoking Rule 56(d).        See C.B. Trucking, 137 F.3d at 44.
    
    Rather, he must stake his claim to protection under Rule 56(d) at
    
    the time he responds to the summary judgment motion (or, at least,
    
    at some time before the nisi prius court passes on that motion).
    
                The plaintiff did not seasonably invoke the protection of
    
    Rule 56(d).       To invoke Rule 56(d), a party must furnish the
    
    district court with a timely statement that "(i) explains his or
    
    her current inability to adduce the facts essential to filing an
    
    opposition, (ii) provides a plausible basis for believing that the
    
    sought-after facts can be assembled within a reasonable time, and
    
    (iii) indicates how those facts would influence the outcome of the
    
    pending summary judgment motion."           Vélez, 375 F.3d at 40.            Here,
    
    however, the plaintiff did nothing that, by any stretch of even the
    
    most    fertile   imagination,     might    be    thought   to    satisfy     these
    
    requirements.       He   opposed   summary       judgment   head-on,        and   his
    
    opposition made no mention either of Rule 56(d) or of a need to
    
    obtain more information in order to contest summary judgment.                      In
    
    these    circumstances,    the     district      court   had     no   sua    sponte
    
    obligation to determine whether Rule 56(d) might be in play.                      See
    
    Secord, 684 F.3d at 6 ("It is not the court's responsibility to dig
    
    through the record in a particular case unsolicited and determine
    
    
                                         -13-
    whether some timing problem might exist in connection with a
    
    summary judgment motion.").
    
               To be sure, once the district court granted summary
    
    judgment, the plaintiff attempted (for the first time) to forge a
    
    link   between   the    discovery-extension      motion   and   the    summary
    
    judgment motion.        This was too little and too late, and the
    
    plaintiff offered no convincing explanation for his failure to
    
    forge such a link earlier.          The district court denied the motion
    
    for reconsideration out of hand and, given the circumstances, we
    
    cannot say that its ruling was an abuse of discretion.               See Vélez,
    
    375 F.3d at 41.
    
               When the court entered summary judgment, the extended
    
    discovery period had only a little more than three weeks left to
    
    run.    There    is    no   basis   for   a   finding   that   the   plaintiff
    
    detrimentally relied on these waning few weeks of the extended
    
    discovery period.       For one thing, the record contains nothing to
    
    indicate that the plaintiff actually conducted discovery after the
    
    district court granted the discovery-extension motion.                  To the
    
    contrary, the plaintiff's motion for reconsideration of the summary
    
    judgment order, filed more than four weeks after the court had
    
    authorized the reopening of discovery, states that he "has not been
    
    able to conduct discovery."
    
               For another thing, the plaintiff states his intention to
    
    take depositions of certain persons with knowledge, but it does not
    
    
                                         -14-
    appear that those depositions had even been scheduled — let alone
    
    taken — at the time when he sought reconsideration. Given that the
    
    plaintiff had already allowed most of his extended time to lapse
    
    without     assiduously   pursuing     any   additional   discovery,     any
    
    inference of reliance on the extension is simply implausible.
    
    Thus, any potential concern about unfairness in the timing of the
    
    court's entry of summary judgment is dissipated by the utter
    
    absence of any evidence that the plaintiff actually relied on the
    
    discovery extension.
    
                Actions   have   consequences;     and   inaction,   too,   has
    
    consequences.     Because the plaintiff did not make the slightest
    
    effort either to comply with the requirements of Rule 56(d) or to
    
    conduct discovery diligently, the district court did not abuse its
    
    discretion in ruling on the fully briefed summary judgment motion
    
    prior to the conclusion of the extended discovery period.               See,
    
    e.g., Secord, 684 F.3d at 6; United States v. San Juan Bay Marina,
    
    
    239 F.3d 400
    , 408 (1st Cir. 2001); Meehan v. Town of Plymouth, 
    167 F.3d 85
    , 92 n.7 (1st Cir. 1999).
    
    III.   CONCLUSION
    
                We need go no further. For the reasons elucidated above,
    
    we affirm the judgment of the district court.
    
    
    
    Affirmed.
    
    
    
    
                                         -15-
    

Document Info

DocketNumber: 12-1193

Filed Date: 5/3/2013

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (22)

Celotex Corporation v. Myrtle Nell Catrett, Administratrix ... , 477 U.S. 317 ( 1986 )

Godin v. Schencks , 629 F.3d 79 ( 2010 )

McCarthy v. Northwest Airlines , 56 F.3d 313 ( 1995 )

C.B. Trucking, Inc. v. Waste , 137 F.3d 41 ( 1998 )

Ruiz Rivera v. Dept. of Education , 209 F.3d 24 ( 2000 )

Dynamic Image v. United States , 221 F.3d 34 ( 2000 )

United States v. San Juan Bay Marina , 239 F.3d 400 ( 2001 )

Rogan v. Menino , 267 F.3d 24 ( 2001 )

Velez-Cortes v. Awning Windows, Inc. , 375 F.3d 35 ( 2004 )

TROPIGAS DE PUERTO RICO v. Certain Underwriters , 637 F.3d 53 ( 2011 )

Hannon v. Beard , 645 F.3d 45 ( 2011 )

Armor Elevator Co., Inc. v. Phoenix Urban Corporation , 655 F.2d 19 ( 1981 )

florida-power-light-company-a-florida-corporation-v-allis-chalmers , 893 F.2d 1313 ( 1990 )

Milissa Garside v. Osco Drug, Inc. , 895 F.2d 46 ( 1990 )

33-fed-r-evid-serv-1294-prodliabrepcchp-12860-jeanne-raymond , 938 F.2d 1518 ( 1991 )

Isabelita Mas v. United States of America , 984 F.2d 527 ( 1993 )

Shedrick L. King v. Weldon Cooke, Robert Doster, Charles ... , 26 F.3d 720 ( 1994 )

71 Fair empl.prac.cas. (Bna) 1398, 35 fed.r.serv.3d 395 ... , 95 F.3d 86 ( 1996 )

Lynne Woods-Leber and Anthony Leber v. Hyatt Hotels of ... , 124 F.3d 47 ( 1997 )

ann-dulany-trenace-white-jane-doe-lillian-taylor-vicky-williams-larfay , 132 F.3d 1234 ( 1997 )

View All Authorities »