United States Court of Appeals

For the First Circuit

No. 04-1628

DOMINGO GUZMÁN-RUÍZ, ET AL.,

Plaintiffs, Appellants,

v.

FRANKIE HERNÁNDEZ-COLÓN, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Arturo Luciano Delgado for appellants.

Luis Villares Sarmiento with whom Sánchez-Betances, Sifre,

Muñoz-Noya & Rivera, P.S.C. was on brief for appellees HernandezColon and Maldonado-Arrigoitia.

Gary H. Montilla with whom Roberto Márquez-Sánchez was on

brief for Arecibo.

April 27, 2005
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COFFIN, Senior Circuit Judge. This is an appeal from a

summary judgment in favor of Puerto Rico defendant municipality,

Arecibo, its mayor and its director of human resources, in a

political discharge suit brought by fourteen employees. Plaintiffs

are members of the New Progressive Party (NPP) and the individual

defendants are members of the Popular Democratic Party (PDP), which

was restored to power after the election of 2000. The newly

elected mayor, Frankie Hernández-Colón, allegedly facing a

formidable municipal financial crisis, instigated the termination

of many employees, including the plaintiffs.

Plaintiffs' complaint, seeking both injunctive relief and

damages, invoked 42 U.S.C. §§ 1983, 1985(3), and other federal

causes of action, as well as several Commonwealth provisions.

Defendants submitted motions for dismissal and summary judgment

supported by statements of municipal officers evidencing not only

financial stringency but also implementation of a seniority-based

layoff plan devised in contemplation of such an emergency by the

prior mayor, an NPP member. The district court accepted the

recommendations of a magistrate judge that summary judgment be

granted in favor of the defendants.

After reviewing the evidentiary state of the record in search

of material issues of fact and noting a series of procedural

defaults, we affirm the rulings of the district court rejecting

belated requests for discovery and concluding that the record is
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bereft of any evidence of political animus motivating the

discharges. We review the former ruling for abuse of discretion,

Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 5 n.2 (1st Cir. 2003),

and the latter de novo, Rodriguez v. American Int'l Ins. Co. of

Puerto Rico, 402 F.3d 45, 46 (1st Cir. 2005).

We first consider plaintiffs' complaint, which the district

court generously characterized as establishing a prima facie case

of discrimination. The complaint described plaintiffs as NPP

"activists," who served as NPP officers and delegates on election

day in 2000 and assisted at rallies and meetings during the

campaign. Their political beliefs were alleged, in conclusory

terms, to be known by defendants. The fourteen plaintiffs were

described as holding the following positions: carpenter (2),

janitor (2), driver (2), clerk (3), secretary (2), coordinator,

receptionist, and worker.

These allegations may very well describe plaintiffs' jobs as

protected from politically motivated dismissal, see, e.g., PadillaGarcía v. Guillermo Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000)

(non-policymaking employees are protected from employment decisions

based on political affiliation), but job terminations are not

unconstitutional solely "because those affiliated with one

political party are disproportionately impacted," Sanchez-Lopez v.

Fuentes-Pujols, 375 F.3d 121, 140 (1st Cir. 2004).
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In Acevedo-Diaz v. Aponte, 1 F.3d 62, 69 (1st Cir. 1993),

plaintiffs were described as playing prominent roles in "publicly

and vocally supporting" a former mayor. Even so, we acknowledged

that, "[s]tanding alone, even the circumstantial evidence that some

plaintiffs were especially conspicuous targets for discriminatory

employment action by defendants would give us serious pause." And,

even more recently, in Gonzalez de Blasini v. Family Dep't, 377

F.3d 81, 85-86 (1st Cir. 2004), we affirmed dismissal of a

complaint, concluding that even though plaintiff was alleged to be

a well known supporter of the NPP, had held a trust position under

the previous NPP administration, and defendant had expressed

interest in giving her position to a PDP member, this fell short of

evidence that defendant knew of plaintiff's affiliation. See also

Cosme-Rosado v. Serrano-Rodríguez, 360 F.3d 42, 48 (1st Cir. 2004)

(statement of PDP mayor of intent to rid town of NPP activists

insufficient to generate genuine issue of material fact); FigueroaSerrano v. Ramos-Alverio, 221 F.3d 1, 8 (1st Cir. 2000) (similar).

We note our doubt concerning whether plaintiffs had truly set

forth a prima facie case to emphasize that it is at best not a

strong one. Their task under the burden-shifting analysis

applicable to political discrimination cases was to show that their

constitutionally protected conduct was a substantial or motivating

factor for the adverse employment decision. See, e.g., PadillaGarcía, 212 F.3d at 74 (citing Mt. Healthy City Sch. Dist. Bd. of
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Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Assuming their skimpy

showing met this standard, the allegations nonetheless lack any

specific information that could bulwark a case for rejecting the

genuineness of defendants' response that they "would have taken the

same action regardless of the plaintiff's political beliefs," id.

(referring to "the Mt. Healthy defense").

This sets the stage for the critical assessment of defendants'

proffered justification. After considerable jousting by the

parties over service of process and plans for discovery, the court

set the date of May 7, 2003 for a status conference. A few days

before that date, defendants filed a motion for summary judgment

with a Statement of Uncontested Material Facts and a motion to

dismiss. Unaccountably, plaintiffs' counsel did not attend the May

7 conference.

This was only the beginning of missed cues. Plaintiffs

responded on May 14 to the motion for summary judgment only by

requesting an extension of time beyond the customary ten day limit

to June 11 to oppose the motions. That date passed without any

effort to secure a further extension, or to conduct discovery, and

without any statement of opposition or opposing statement of

material facts, as required by local rules. Accordingly, on July

14, the court referred the case to the magistrate judge for a

report and recommendation, which was to be considered "unopposed."

Under the applicable local rule, facts in a statement of material
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facts, if supported by record citations, are deemed admitted unless

properly controverted. See D.P.R. R. 56(e).

Three weeks later, on August 8, plaintiffs' counsel filed a

motion for reconsideration of the order of reference. We have

looked in vain for any support for such a motion except an appeal

for sheer mercy. Counsel averred that it was "foreseeable that

plaintiffs would need additional time [beyond June 11] to conclude

the discovery" but did not explain why preventive anticipatory

action was not attempted. Counsel had "coordinated" the tentative

deposition of defendant Mayor Hernández but "the undersigner

calendar [sic] during the months of June and July of 2003 prevented

to do so." Finally, the request: "Plaintiffs deserve an

opportunity to conduct further discovery . . . . It was our

mistake not to request an additional extension of time to oppose

said motion."

Counsel perhaps deserves high marks for candor, but to ask us

to find that the district court abused its discretion in refusing

to grant this motion is to ask us to use this sad case to make very

bad law. Counsel for Arecibo appropriately calls our attention to

Justice Harlan's thought in Link v. Wabash Railroad Co.: "[K]eeping

this suit alive merely because plaintiff should not be penalized

for the omissions of his own attorney would be visiting the sins of

plaintiff's lawyer upon the defendant." 370 U.S. 626, 634 n.10

(1962) (emphasis in original). Now, if ever, are the teachings of
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such cases as Resolution Trust Corp. v. North Bridge Assocs., 22

F.3d 1198 (1st Cir. 1994), pertinent. There, we called attention

to the safety valve of Fed. R. Civ. P. 56(f), which gives a party

with an authentic need the opportunity to buy more time to mount an

opposition to summary judgment. Id. at 1203. But we emphasized

that invoking the rule required "due diligence both in pursuing

discovery before the summary judgment initiative surfaces and in

pursuing an extension of time thereafter." Id. In addition to due

diligence, we added:

When, as is often the case, the reason [for a requested

extension] relates to incomplete discovery, the party's

explanation must take a special form: it should show good

cause for the failure to have discovered the facts

sooner; it should set forth a plausible basis for

believing that specified facts, susceptible of collection

within a reasonable time frame, probably exist; and it

should indicate how the emergent facts, if adduced, will

influence the outcome of the pending summary judgment

motion.

Id.

In this case, there was no diligence exercised during the

three months of May, June, and July after the motion for summary

judgment surfaced. And not only was no good cause shown for

failure to have discovered facts sooner, but there was no

indication of plausibly hoped for "specified facts" and the

feasibility of their timely collection. We therefore have no

alternative but to conclude that the district court did not abuse

its discretion in refusing to reconsider and grant belated

discovery. The magistrate judge therefore properly considered the
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defendants' statement of uncontested material facts as unopposed

and, consequently, conceded to be true.

Thus guided, the magistrate judge first noted the sworn

statement of Arecibo's Finance Director stating that as of the

beginning of Mayor Hernández's administration in 2001 Arecibo had

a deficit of twelve million dollars. The statement asserted that

because of this extreme situation, and after considering other

options such as personnel relocation and reduction of working

hours, "the only option available to prevent a collapse of the

Municipal economy was to implement layoff of personnel."

The report went on to consider the sworn statement of the

municipality's Human Resources Director, referring to letters of

dismissal (copies of which were included) informing employees of

their impending dismissal, due to the economic crisis, under a

dismissal plan based on seniority. Each letter notified the

recipient of his right to appeal the dismissal to the Appeals Board

of the Personnel System. 

Finally, the magistrate judge found no evidence of pretext

concealing a discriminatory animus. He then, apparently having

given every favorable inference to the allegations in the

complaint, recommended that summary judgment issue for defendants.

Plaintiffs made timely objections to this report and

recommendation, which are really a replay of the plea for

discovery made in the motion for reconsideration. They consist of
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two types of allegations. The first is a criticism of both the

financial deficit information and the procedures followed in

implementing the layoff plan. For example, the assertion is made

that defendants' "fact" concerning financial crisis "can be easily

questioned" by reviewing municipal financial statements and the

"totality of the personnel actions." The demand is for

unidentified more "reliable" documents than the affidavits of the

Finance Director and the Human Resources Director.

The second set of allegations consists of categorical

assertions lacking in any specificity, such as: "certain employees"

have been excluded from dismissal and allowed to continue working;

new personnel have been hired; "big spending" has taken place; all

municipal appointed directors have received substantial pay

increases. Plaintiffs assert that, if discovery is allowed, all

this will be proven.

What all this comes down to is an outline of areas of hopeful

inquiry, something that plaintiffs could have articulated and

pursued months earlier. Ultimately, we come to the judgment of the

district court when it adopted and approved the Report and

Recommendation of the magistrate judge, granting summary judgment

for defendants and dismissing all claims. Its key finding was that

"[t]he record is void of evidence supporting allegations of

political discrimination." While plaintiffs assert that the court

placed an improper burden on them to show pretext affirmatively, we
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think the state of the record is such that there is no basis for a

rational jury to conclude other than that plaintiffs' terminations

were the result of "uniformly applied personnel practices[]

predicated on legitimate reasons," Sanchez-Lopez, 375 F.3d at 140.

There are two remaining arguments of plaintiffs that claim our

attention. On October 31, 2003, they filed an "Informative Motion

and Request of Judicial Knowledge," asking the court to take

judicial notice "for all legal purposes" of another case involving

some two hundred dismissed employees in which plaintiffs had filed

a motion for summary judgment before another judge. We note first

that plaintiffs did not make this argument to the magistrate, and

it is therefore waived. See Paterson-Leitch Co. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).

Moreover, plaintiffs made no attempt to specify what "adjudicable

facts" met the requirements of Federal Rule of Evidence 201. Not

only do pleadings, parties, issues, and facts differ in different

cases, but plaintiffs cannot sidestep their neglect to offer

evidence in this case by asking the court to rule on the basis of

the record in another case. Finally, the district court's ruling

in the other case – finding that the seniority plan used by

defendants "could not, as a matter of law, have formed the legal

basis for Plaintiffs' dismissal" – did not occur until March 2004,

some four months after the Informative Motion was made and on the
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same day that the district court in this case signed its order.

Refusal to take judicial notice was amply justified.

A final contention is that the district court improperly

dismissed plaintiffs' claims based on Act No. 382 of May 11, 1950,

29 P.R. Laws Ann. §§ 136-139. This argument dwindles in the face

of the municipality's assertion, not denied by plaintiffs, that the

provision was repealed by Act 121 of September 13, 1997, before any

events relating to this case took place.

Affirmed.