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USCA1 Opinion

UNITED STATES COURT OF APPEALS


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1455

MARIA DEL CARMEN REYES-GARCIA, ET AL.,

Plaintiffs, Appellees,

v.

RODRIGUEZ & DEL VALLE, INC.,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]


___________________

_________________________

Before

Selya and Cyr, Circuit Judges,


______________

and Gertner,* District Judge.


______________

_________________________

Virgilio Mendez Cuesta on brief for appellant.


______________________

Jose F. Quetglas Alvarez, Jose F. Quetglas Jordan, and Eric


_________________________ _______________________
____
M. Quetglas Jordan on brief for appellees.
__________________

_________________________

April 25, 1996

_________________________

_____________

*Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge.


SELYA, Circuit Judge.
______________

Since appellate

judges are not

haruspices, they

entrails.

They

are unable

instead must

to decide

cases by

rely on lawyers

submit briefs that present suitably developed

appropriate citations to applicable

below.

A party who

reading goats'

and litigants

to

argumentation with

precedents and to the record

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

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

resolving infrequent conflicts in favor of the jury verdict.

Cumpiano v. Banco Santander P.R.,


________
_____________________

902 F.2d 148,

151 (1st

can,

See
___

Cir.

1990).

In

Inc.

1987,

defendant-appellant Rodriguez

(R&D), a general

public

agency,

Puerto Rico

buildings in

Puerto

the Urban

the Puerta de

Without

relevant regulations

entry

into

protuberances

vehicles

Renewal

(the Corporation), to

Rico.

that matter

contractor, executed an

R&D

the

and

Del Valle,

agreement with a

Housing Corporation

renovate several

obtaining the

permission

of

residential

Tierra Housing Community,

San Juan,

required

by

or any other semblance of permission, for

levelled speed bumps

Housing

facilitated

and heavy

&

Community.

access

machinery,

to

on a road that

Though

the work

the changed

provided

flattening

site

by

configuration

the

R&D's

also

effectively

speed

converted the

racing.

roadway into a

Dismayed

residents

drag strip

soon

for high-

petitioned

the

municipality to reconstruct the

speed bumps.

acquiesced and the municipality

rebuilt the moguls (spacing them

at their original fifty-foot intervals,

foot

intervals

regulations).

The

then

mandated

by

drag-racing ceased

The powers-that-be

rather than at the

applicable

highway

and traffic

100-

safety

slowed to

snail's pace.

R&D was

the

not to be

speed bumps on its

racing resumed and

inconvenienced.

own authority.

the pace

It

again levelled

Not surprisingly, drag-

of traffic accelerated.

finished the renovations limned by its contract, it

site

without restoring

condition.

were

at

the roadway

to its

When

R&D

departed the

original humpbacked

Residents alerted the authorities, warning that lives

stake.

After

municipality concluded

conducting

that someone

an

investigation,

had best rebuild

the

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,

his

travelling at high speed on the roadway, lost control of

automobile and

Reyes-Garcia

struck plaintiff-appellee

(Reyes) as she stood

Maria del

on the sidewalk.

Carmen

The impact

caused permanently debilitating injuries, including the severance

of a limb.

Invoking diversity jurisdiction,

28 U.S.C.

1332(a),

the

plaintiff, by

parties,

the

then a

citizen of

including R&D, in the United

District of

Puerto Rico.1

At

New Jersey,

sued several

States District Court for

trial plaintiff

advanced a

golconda of tort theories against

R&D, claiming inter alia


_____ ____

R&D

safety

had

violated

contractors

to seek

highway

permission from

regulation

that

requiring

the municipality

prior to

removing speed bumps, and that R&D's conduct had transgressed the

general duty of

Ann.

tit.

31,

care owed under Puerto Rico law.

5141 (1991)

defendant "by an act

(providing

See P.R. Laws


___

for liability

or omission causes damage to

when a

another party

through fault or negligence").

After

a six-day trial, a

and awarded her $700,000.

jury found for the plaintiff

It apportioned the damages 80% against

the Corporation and 20% against R&D.

variety of post-trial motions.

The district court denied a

R&D now appeals.

II
II

The appellant's submissions to

disregard of the applicable

page opening brief

list

of

statement

legal

of

review, or

brief

procedural rules.

that did not

authorities,

the case,

It filed

contain a table of

a pr cis

jurisdictional

of

a summary of the argument.

lacked developed

this court are in utter

argumentation,

the issues

a nine-

contents, a

statement,

presented for

The merits section of the

eschewed any

meaningful

____________________

1Reyes'
claims.

children also sued,

but we need

not discuss their

citations

references

to pertinent

to

legal authority,

the record

evidence,

applicable standard(s) of review.

failed

to

violated

procedural

prepare

a whole

rules.

a record

and

omitted particularized

did not

To cap matters,

appendix.

In

requirements imposed

See,
___

R.

App. P.

the

the appellant

short, the

series of

e.g., Fed.
____

discuss

brief

by applicable

28(a)(1)-(6),

28(e), & 30(a); 1st Cir. R. 28.2.

The plaintiff

R&D responded

opening

in fits and starts.

brief

(neither

manifold defects

in its

the plaintiff, see


___

filed a

vital

of

excerpts from

trial motions.

It filed two

original filings).

Fed. R. App. P. 30(b),

appendix.

the trial

an index, relevant

appeal, and the opinion

unleavened appeal.

which satisfactorily

thirteen-page record

other things,

Spanish

moved to dismiss the

repaired

the

Without consulting

R&D also prepared and

This

record.

addenda to its

submission lacked

It also

lacked, among

docket entries, the

notice of

of the district court denying

the post-

The principal document in the appendix was in the

language,

violated the rules

without

translation.

several times over.

These

shortcomings

See, e.g.,
___ ____

Fed. R. App.

P. 30(a), (d); 1st Cir. R. 28.2 & 30.7.

III
III

Procedural

reasons.

orderliness.

One

rules are

reason

is

important

that

rules

for

ensure

two

overarching

fairness

and

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.

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

functional

orientation:

important

has

framework

that helps courts to assemble the raw material that is

essential

for forging

enlightened decisions.

venue,

for example,

rules provide

court,

removed from

the battlefield

fought,

rules

rules are

the

In

an appellate

mechanism by

where the

which the

trial has

been

gains the information that it requires to set the issues

in context and

pass upon them.

When a party seeking

review fails to comply with the rules in one or more

respects,

establish

its

failure

thwarts

this effort

and

appellate

substantial

deprives

the

appellate court of the basic

tools that the judges of the

need to carry out this task.

See Scarfo v. Cabletron Sys., Inc.,


___ ______
____________________

54 F.3d 931, 963 (1st Cir. 1995); Moore v. Murphy, 47


_____
______

(1st

court

F.3d 8, 10

Cir. 1995); Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d


_____________________
____________

1555, 1559

n.5 (1st Cir. 1989);

Real v. Hogan, 828


____
_____

F.2d 58, 60

(1st Cir. 1987).

In

this instance

the

second reason

importance.

The deficiencies

pervasive.

They frustrate any reasonable

its

legal theories

and

is of

paramount

in the appellant's submissions are

to corroborate

attempt to understand

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

shorter

intervals than

regulation.

citation

Therefore,

This

either

prescribed

paralogism,

to

legal

by

the governing

however, is

authority

or

municipal

unsupported by

to

record

we must treat the argument as forfeited.

any

evidence.

See Ryan v.
___ ____

Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1991) ("It is settled
______________

in

this

circuit

perfunctory

manner,

argumentation,

States
______

that

are

issues

unaccompanied

deemed

v. Zannino,
_______

895

to have

F.2d 1,

denied, 494 U.S. 1082 (1990); see


______
___

(explaining

that

contentions of

reasons

and

therefor, with

the

appeal

some

the issues

of

must

cert.
_____

28(a)(5)

contain

the

presented, and

the

authorities, statutes,

To make

any

United
______

(same),

also Fed. R. App. P.


____

"argument

in

developed

abandoned.");

(1st Cir.)

citations to the

is bereft

on

by

record relied on").

argument

to

been

17

appellate

the appellant on

parts of the

worse,

an

adverted

a bad situation

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

offers

to

the jury

verdict.

the appellant

us no assurance that the necessary steps were taken below

preserve the

point, and

the fragmented

produced does not afford any reliable

the

Here, too,

record that

way to tell.

it has

At any rate,

appellant furnishes no citations to the record in support of

its rhetoric, but asks in effect that we take its rodomontade

face value.

There is no justification for doing so.

The appellant's third

to

order

at

a remittitur.

argument implicates the

Federal

law

governs the

refusal

question of

whether

the trial court should order a remittitur in a diversity

case.

See Blinzler
___ ________

(1st

Cir. 1996) [No.

law,

appellate review

verdict

v. Marriott Int'l, Inc.,


____________________

95-2108, slip op.

of

a trial

is necessarily limited

discretion

in

leaving the

___ F.3d ___,

at 30].

court's

award intact.

Under federal

refusal to

to whether the

___

trim

court abused its

See, e.g.,
___ ____

Ruiz v.
____

Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991); Wagenmann v.


__________________
_________

Adams, 829 F.2d 196, 215 (1st


_____

record makes

injuries.

Cir. 1987).

manifest the nature

We need not go into

Though bareboned, the

and extent of

the plaintiff's

graphic detail; even at a casual

glance, it beggars credulity to argue, as does R&D, that $700,000

in

damages for

excessive,

a severed

limb and

other injuries

inordinate, shocking to the

is "grossly

conscience . .

., or so

high that it would be a denial of justice to permit it to stand."

Correa
______

1995)

v. Hospital San Francisco,


______________________

69 F.3d 1184,

1197 (1st Cir.

(quoting Grunenthal v. Long Island R.R. Co., 393 U.S. 156,


__________
____________________

159 & n.4 (1968)).

The appellant's

to a new trial

name

Flores,

form.2

final argument is that

it is entitled

because the district court allegedly

the driver

But the meager

of the

speeding

record that we

car, on

declined to

the verdict

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

____________________

2The

jury form

driver's negligence

did

permit the

jurors

to find

constituted the sole proximate

plaintiff's injuries and

to exonerate

R&D in that

that

the

cause of the
event.

The

jury found otherwise.

appeal.

456

(1st

See, e.g., Putnam Resources v. Pateman,


___ ____ _________________
_______

Cir.

1992) ("Silence

after

958 F.2d 448,

instructions,

including

instructions

on the form

of the verdict

to be

returned by the

jury, typically constitutes

a waiver of

any objections.").

all

neglects to

mention the

events, the

important fact

appellant

that Flores was

not a party to

In

singularly

the lawsuit; the

plaintiff had failed properly to serve him, and the appellant had

not seen fit

to implead him.

theory why the district

The appellant

offers no plausible

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

process.

This

canvassed

the

rules

case

lie

near

the

shows why

appellant's

that

epicenter of

is so;

asseverational

the

indeed,

array

judicial

we

mainly

have

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

any

intelligently.

No

one

is

hamstring

to review

of the

and

occasional

rules

oversights

that neither

Draconian

issues

party's submissions

consequences.

But major

to

to comprehend and

ordinarily will

not warrant

infractions or

patterns of

repeated inattention warrant severe decrees.

fribbling

create unfairness

one's adversary nor impair the court's ability

scrutinize a

the

Of course, there must be some play in the joints.

perfect,

infringements

attempt

"In the long run, .

. . strict adherence

the

best guarantee

to . . .

of

procedural requirements . . .

evenhanded administration

of the

is

law."

Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980).


_____________
______

We

hold that a

appellate rules,

in and of itself,

to dismiss its appeal.

620 F.2d 404, 407

party's persistent

noncompliance with

constitutes sufficient cause

See Kushner v. Winterthur Swiss Ins. Co.,


___ _______
_________________________

(3d Cir. 1980) (dismissing appeal

to comply with FRAP rules); see


___

for failure

also Mortell v. Mortell Co., 887


____ _______
___________

F.2d 1322, 1327 (7th Cir. 1989) (observing that failure to comply

with the

F.2d

rules can be "fatal"

568, 571

n.3

(1st Cir.

to an appeal); Katz
____

1980)

v. King, 627
____

(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


___ ____

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

with

applicable

test.3

Dismissal

The

is

prosecuted in substantial

procedural rules

violations

here are

plainly warranted.

and

this

nothing

compliance

appeal fails

short of

Accordingly,

that

egregious.

the appeal

is

dismissed with prejudice.

IV
IV

____________________

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.

(authorizing

frivolous

awards of

"just

damages" and

appeals); 28 U.S.C.

("Any attorney

. . .

who so

See Fed. R.
___

App. P. 38

"double costs"

1912 (similar); 28 U.S.C.

multiplies the proceedings

for

1927

in any

case unreasonably and vexatiously may be required by the court to

satisfy

fees

personally the

reasonably

plaintiff

excess costs,

incurred

urges that

because

this is

of

expenses,

such

an appropriate

and attorneys'

conduct.").

instance for

The

the

imposition of such sanctions.

We have

said that "[a]ppellate sanctions

discourag[ing] litigants from wasting

their

without

opponents and the judicial

merit."

are aimed at

time and resources of both

system with arguments that are

Transnational Corp. v. Rodio & Ursilio, Ltd.,


____________________
______________________

920

F.2d 1066,

1072

Chandris, S.A., 934


______________

(1st

Cir.

F.2d 383,

1990);

387 (1st

see
___

also
____

Cir. 1991)

that sanctions are a proper response to a frivolous

like token,

sanctions are

parties and their

other

litigants

substantially from

INS,
___

counsel from

the rules.

appeals

See,
___

in

(explaining

appeal).

By

of discouraging

wasting the time

by prosecuting

v.

of courts

ways that

and

deviate

e.g., Calderon-Ontiveros v.
____ __________________

809 F.2d 1050, 1053 (5th Cir. 1986) (imposing sanctions for

failure

to comply

with FRAP

Angeles, 803 F.2d 462,


_______

the

an appropriate means

Toscano
_______

imposition of

these purposes.

rules); Hamblen
_______

v. County of Los
______________

464-65 (9th Cir. 1986) (similar).

sanctions may

well serve

either or

Here,

both of

11

In

story, we

order

to ensure

that we

direct the plaintiff's

hear

both sides

counsel to prepare,

of the

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.


___ ____ __________

Great N. Nekoosa Corp., 925


_________________________

F.2d

(discussing

applications),

contents

of

fee

518,

527

(1st Cir.

together

1991)

with

memorandum of

of the

law, not to exceed ten pages in length, in support

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

same

time

severally.

R&D

an affidavit

of

may, if it

its

counsel

so elects, file

commenting

at the

upon

the

reasonableness of the fees requested by the applicant.

The appeal is dismissed with prejudice.


The appeal is dismissed with prejudice.
_________________________________________

We retain
We retain
__________

appellate jurisdiction for the purpose of further considering the


appellate jurisdiction for the purpose of further considering the
_________________________________________________________________

plaintiff's request for sanctions.


plaintiff's request for sanctions.
__________________________________

The parties shall make the


The parties shall make the
___________________________

filings described herein within the assigned time parameters.


filings described herein within the assigned time parameters.
____________________________________________________________

We
We
__

shall withhold mandate until the question of sanctions has been


shall withhold mandate until the question of sanctions has been
_________________________________________________________________

resolved.
resolved.
________

So Ordered.
So Ordered.
__________

12