*Of the District of Maine, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 04-1455

JOSÉ A. HERNÁNDEZ-SANTIAGO,

Plaintiff, Appellant,

v.

ECOLAB, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

 Torruella, Howard, Circuit Judges,

and Carter,* Senior District Judge.

Javier A. Morales Ramos with whom Juan F. Matos Bonet was on

brief, for appellant.

Luis G. Martínez Lloréns with whom Colón, Colón & Martínez,

P.S.C. was on brief, for appellee.

February 7, 2005
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Per Curiam. Plaintiff-appellant José Hernández-Santiago

appeals from a judgment dismissing his complaint against defendantappellee Ecolab, Inc., on the ground that the district court lacked

subject matter jurisdiction. We vacate the judgment and remand for

further proceedings. 

Hernández, a citizen of Puerto Rico, filed this diversity

action in federal court against Minnesota-based Ecolab, seeking

damages arising out of injuries that he sustained in a work-related

accident using a cleaning product called Super Trump. Hernández's

complaint alleged that Ecolab violated Puerto Rico's products

liability laws by failing to include appropriate instructions and

warnings with the Super Trump product. After being served with the

complaint, Ecolab answered by denying liability and asserting

several affirmative defenses.

At the Fed. R. Civ. P. 16(b) scheduling conference,

Ecolab's counsel informed the court that it did not believe that it

had manufactured or sold the product to Hernández's employer.

Rather, counsel believed that Ecolab Manufacturing, Inc. --

Ecolab's wholly owned Puerto Rico subsidiary -- had manufactured

and sold the product. At the conclusion of the conference, the

court ordered Ecolab to provide Hernández with information

concerning the entity that had manufactured and sold the product to

his employer. 
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Ecolab responded by filing with the court an affidavit

from its general counsel stating that, based on a review of

Ecolab's and Ecolab Manufacturing's records, it appeared that the

product had been manufactured and sold to Hernández's employer by

Ecolab Manufacturing. Construing this filing as a motion to

dismiss for a lack of subject matter jurisdiction, the court issued

Hernández an order to show cause "why [his] case should not be

dismissed for lack of jurisdiction in view of the evidence filed by

[Ecolab] in support of its claim that the product at issue in this

litigation was manufactured, sold and/or delivered to plaintiff's

employer by [Ecolab Manufacturing], [Ecolab's] wholly owned

subsidiary, a Puerto Rico corporation." (Emphasis supplied).

After receiving the show cause order, Hernández sought

both an extension of time to respond and an order requiring Ecolab

to comply with certain discovery requests related to the

manufacturer-identity issue. The court granted the extension and

ordered Ecolab to provide the requested discovery. 

Subsequently, Hernández filed a response to the show

cause order and a motion for discovery sanctions. In both

submissions, Hernández complained that Ecolab still had not

provided it with the discovery necessary to ascertain whether

Ecolab Manufacturing, in fact, had manufactured and sold the Super

Trump product to his employer. Hernández also argued that, even if

Ecolab did not manufacture or sell the product, it was nevertheless
1But see Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288,

293 (1st Cir. 1999)(doubting whether principles for imputing

liability to a third party under Puerto Rico law differ from the

traditional agency by apparent authority doctrine).

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liable under the doctrine of agency by apparent authority because

the product and the included warnings and instructions indicated

that Ecolab was the manufacturer. The court rejected this argument

and dismissed the complaint. See Hernández-Santiago v. Ecolab,

Inc., 303 F. Supp. 2d 51 (D.P.R. 2004). It ruled that Puerto Rico

applies the doctrine of "one's own acts" (instead of the doctrine

of agency by apparent authority) which requires that a plaintiff

seeking to impute liability to a third party demonstrate that the

third party engaged in conduct which created a perception contrary

to reality and that the plaintiff detrimentally relied on the third

party's representation. Id. at 54.1 In the court's view,

Hernández had failed to show detrimental reliance. Hernández

appeals from this ruling.

In issuing the show cause order and ultimately dismissing

the complaint, the district court concluded that the question of

which entity manufactured and sold the Super Trump product to

Hernández's employer implicated its subject matter jurisdiction.

We review this legal conclusion de novo. See Cotter v. Mass. Ass'n

of Minority Law Enforcement Officers, 219 F.3d 31, 34 (1st Cir.

2000). 
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In a diversity action where there is no question of

ripeness, mootness, or standing, the existence vel non of subject

matter jurisdiction typically turns on two facts -- diversity of

citizenship and amount in controversy. See Valentin v. Hosp.

Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001); 28 U.S.C. §

1332. Under Fed. R. Civ. P. 12(b)(1), a party may contest the

court's subject matter jurisdiction by challenging the allegations

in the complaint as insufficient on their face or by questioning

the accuracy of those allegations. See Valentin, 254 F.3d at 363.

Where a party challenges the accuracy of the pleaded jurisdictional

facts, the court may conduct a broad inquiry, taking evidence and

making findings of fact. See id. at 363. Thus, if the issue of

the manufacturer's identity presented a jurisdictional question, it

would have been appropriate for the district court to have accepted

evidence (including affidavits) and to have made factual rulings

based on the evidence before it. See id.

Ecolab, however, did not attack the sufficiency or

accuracy of the jurisdictional facts. It did not dispute that the

parties are diverse, that the amount in controversy was satisfied,

or any other fact bearing on the court's power to hear the case.

Instead, Ecolab sought dismissal on the ground that it did not

manufacture or sell the Super Trump product to Hernández's

employer. In other words, it sought a ruling that it was not

liable because it did not commit the act which Hernández claimed
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was tortious. This is a classic merits defense and does not

implicate the court's subject matter jurisdiction. See 5B Wright

& Miller, Federal Practice & Procedure, § 1350 at 106 (3d ed. 2004)

(collecting cases in which the district court erroneously

adjudicated a defense on the merits under Rule 12(b)(1)). Thus,

the court erred in considering Ecolab's motion within the Rule

12(b)(1) framework. See, e.g., Montez v. Dept. of the Navy, 392

F.3d 147, 151 (5th Cir. 2004); see also Valentin, 254 F.3d at 364

("It is pellucid that a trial court's approach to a Rule 12(b)(1)

motion which asserts a factual challenge is quite different from

its approach to a motion for summary judgment."). 

Nevertheless, we could still affirm if dismissal of the

complaint would be the obvious result of a remand. See Chiplin

Enters., Inc. v. City of Lebanon, 712 F.2d 1524, 1529 (1st Cir.

1983); cf. Boateng v. InterAmerican Univ., Inc., 210 F.3d 56, 60

(1st Cir. 2000) (finding harmless error even though the district

court did not inform the plaintiff that it was converting a motion

to dismiss into a motion for summary judgment). Because the

district court accepted an affidavit from Ecolab's general counsel

stating that Ecolab did not manufacture or sell the Super Trump

product to Hernández's employer, the court effectively converted

Ecolab's motion to dismiss into one for summary judgment. See,

e.g., Puerto Rican-American Ins. Co. v. Benjamin Shipping Co., 829

F.2d 281, 285 (1st Cir. 1987). We therefore consider whether, on
2Hernández requested, inter alia, specific material pertaining

to the Super Trump trademark; the entities that have manufactured

Super Trump; and the marketing, manufacture, and distribution of

Super Trump in Puerto Rico.

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the present record, an award of summary judgment in favor of Ecolab

would be appropriate.

For at least three reasons, we are unprepared to so hold.

First, in the motion compel submitted before responding to the show

cause order, in the response to the show cause order, and in the

motion for sanctions filed contemporaneously therewith, Hernández

informed the district court that it needed additional discovery to

respond to Ecolab's evidentiary presentation. The district court

granted Hernández's initial motion to compel discovery but never

ruled on Hernández's subsequent motion for sanctions for

noncompliance therewith. The situation is analogous to one in

which the court awards summary judgment without considering a Fed.

R. Civ. P. 56(f) motion filed by a party opposing the motion for

summary judgment. See Paterson-Leitch v. Mass. Mun. Wholesale

Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988) (describing Rule 56(f)

as an "escape hatch" for a party who genuinely requires additional

discovery to oppose summary judgment). 

While we do not know what Ecolab's discovery responses

would have revealed, the documents that Hernández sought certainly

appear relevant to the manufacturer identity question.2 Moreover,

Hernández has at least arguably satisfied most of the Rule 56(f)
3Hernández's counsel did not comply with the affidavit

requirement. Nevertheless, in appropriate circumstances, we excuse

technical errors in complying with Rule 56(f) where, as here, the

party seeking relief has satisfied the Rule's substantive aspects.

See Vargas-Ruiz v. Golden Arch Dev. Inc., 368 F.3d 1, 3 (1st Cir.

2004). 

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requirements because his counsel filed statements with the court

specifically identifying the needed discovery and explaining its

relevance to ascertaining the manufacturer's identity. See Velez

v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir. 2004) (stating

that to benefit from Rule 56(f) a litigant ordinarily must furnish

the court with an affidavit from counsel explaining the current

inability to adduce sufficient facts to oppose summary judgment,

providing a basis to believe that the facts can be assembled in a

reasonable time, and indicating why the facts are material).3

Thus, there is reason for concern that the court might have abused

its discretion in failing to permit Hernández additional discovery

before ruling on Ecolab's motion. Cf. Resolution Trust Corp. v. N.

Bridge Assocs., 22 F.3d 1198, 1206 (1st Cir. 1994) (vacating

summary judgment ruling because plaintiff was entitled to

additional discovery under Rule 56(f)). 

Second, Ecolab's affidavit from its general counsel does

not appear to have complied with the requirements of Fed. R. Civ.

P. 56(e). For an affidavit to constitute evidence in a summary

judgment proceeding, it must be based on personal knowledge and

show that the affiant is competent to testify to the matter stated
4Ecolab contends that Hernández forfeited the right to make

this argument because Hernández did not present it to the district

court in his response to the show cause order. A review of the

record convinces us, however, that any lapse on Hernández's part

was at least partially attributable to the irregular manner in

which the manufacturer-identity issue arose. We therefore reject

the claim of forfeiture in this instance. See United States v.

Gallant, 306 F.3d 1181, 1187 (1st Cir. 2002). 

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in the affidavit. See Fed. R. Civ. P. 56(e); Perez v. Volvo Car

Corp., 247 F.3d 303, 315-16 (1st Cir. 2001). Counsel swore only

that "a review of relevant manufacturing and sales records" of

Ecolab and Ecolab Manufacturing "reveal[ed]" that Ecolab

Manufacturing sold the Super Trump product to Hernández's employer.

He did not attest that he conducted or supervised the review of the

documents or that he had personal knowledge of the results of the

review. We therefore doubt that there is, at present, a sufficient

evidentiary basis for concluding that, in fact, Ecolab did not

manufacture the product sold to Hernández's employer.

Finally, even were we to assume that Ecolab was not the

manufacturer, we have some doubt as to whether Ecolab would be

entitled to summary judgment. The complaint is based on a failureto-warn theory of products liability. Hernández submits, without

contrary argument from Ecolab, that a viable failure-to-warn claim

may lie under Puerto Rico law against the author of the

instructions and warnings of a product even if a different entity

manufactured and sold the product.4 This proposition does not

strike us as self-evidently incorrect. And, as set forth above,
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there is evidence that Ecolab wrote the instructions and warnings

for the Super Trump product. 

Vacated and remanded.