United States Court of Appeals

For the First Circuit

No. 00-1707

FRANCO MORALES; GLORIA VILLARUBIO; 

CONJUGAL PARTNERSHIP MORALES-VILLARUBIO,

Plaintiffs, Appellants,

v.

A. C. ORSSLEFF’S EFTF,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

 Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Selya, Circuit Judge.

Harry A. Ezratty for appellants.

William A. Graffam, with whom Patricia A. Garrity was on

brief, for appellee.

April 11, 2001

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COFFIN, Senior Circuit Judge. This is a maritime tort

action in which plaintiff-appellant Franco Morales, a San Juan

harbor pilot, appeals from a summary judgment in favor of

defendant-appellee, owner of the vessel M/V Malene. Morales

seeks damages for an injury occasioned by a fall as he was

disembarking from the Malene and boarding the plaintiff's pilot

boat after guiding the Malene out of San Juan Harbor. The

complaint alleged that defendant was negligent for failing to

"make a lee," i.e., to turn the Malene perpendicular to the

waves as requested in order to minimize pitching on the leeward

side of the boat from which plaintiff was disembarking. Morales

also claimed that the rope ladder used to exit the Malene was

not in a safe position, and that the area was not properly

illuminated. On the basis of facts deemed admitted because they

were not controverted by the plaintiff, and his own deposition

testimony, the district court held that the sole cause of the

accident was Morales' own negligence. We affirm.

This case is a lesson in summary judgment practice.

As might be expected, the various motion papers, memoranda,

exhibits, affidavits, and depositions of parties, witnesses, and

experts produced an appendix of two thick volumes. In such a

case, the filing of a motion for summary judgment signals a

formidable search for a genuine issue of material fact. If this
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is not to impose the daunting burden of seeking a needle in a

haystack, the court needs help from counsel. Almost two decades

ago, we confessed our increasing "frustration [with] the more

and more typical phenomenon . . . of a district court having to

decide a motion for summary judgment without the assistance the

court should expect from counsel." Stepanischen v. Merchants

Despatch Transp. Corp., 722 F.2d 922, 927 (1st Cir. 1983). We

encouraged district courts to adopt "anti-ferreting" rules,

which warn parties opposing summary judgment that, to preclude

judgment as a matter of law, they must identify factual issues

buttressed by record citations. "[O]nce so warned," we added,

"a party's failure to comply would, where appropriate, be

grounds for judgment against that party." Id. at 931.

The district of Puerto Rico has such a rule, Local Rule

311.12, which in relevant part requires a party opposing summary

judgment to submit "a separate, short, and concise statement of

the material facts as to which it is contended that there exists

a genuine issue to be tried, properly supported by specific

reference to the record." D.P.L.R. 311.12. We have recently

reiterated, with reference to this particular rule, that

"parties ignore [it] at their own peril," and that "failure to

present a statement of disputed facts, embroidered with specific

citations to the record, justifies deeming the facts presented
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in the movant's statement of undisputed facts admitted." Ruiz

Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (citing prior

cases).

Along with its motion for summary judgment, defendantappellee submitted to the district court, in accordance with the

local rule, a statement meticulously enumerating some three

dozen uncontested facts. Plaintiff responded by filing

contemporaneously two separate documents, his own designation of

uncontested facts and an opposition to defendant's statement of

uncontested facts, both of which were deficient. 

Two thirds of the items listed in plaintiff's

designation of uncontested facts are either completely

unsupported by citations to the record, or else only reference

an entire deposition or statement without page citations. There

is not a single record citation in plaintiff's opposition to

defendant's statement of uncontested facts. Plaintiff accepted

two-thirds of the proffered statements. Among those to which

the plaintiff objected, the district court found none sufficient

to raise a triable issue, and accordingly granted summary

judgment in favor of defendant.

The district court found that by conceding facts

proffered by the defendant, and then lending support to those

uncontroverted facts in his deposition, Morales admitted that he
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alone was at fault for his injury. Although plaintiff contested

the general proposition that harbor pilots take over the command

of vessels once aboard, he accepted defendant's proffered fact

number 8, which stated that, on this occasion, Morales gave all

instructions and navigational orders for maneuvering the Malene

"up to and including the positioning of the vessel for his

disembarkation." He also accepted number 30, defendant's

characterization of the critical moment: "[Morales] stepped from

the ladder into the pilot boat when he deemed it safe to do so."

This admission was based on Morales' own deposition testimony,

specifically referenced by defendant in number 30:

Q. [H]ow long a time was it that you waited at the

ladder for the captain to make this turn that you had

asked him to make?

A. It would have been three or five seconds, five

minutes. Not seconds; minutes.

* * *

Q. [D]id the MALENE actually start the turn to the

left, as you had asked them?

A. As I asked, and he would run back in and I guess

he would put more w[heel] to the ship and the ship

would have come down. By that time, not only would

the ship help the swell, but the swell would ease down

with the boat and as the boat came up, I saw that it

was safe enough for me to grab the boat and release

the ladder and that's what I did. It so happened

that[,] as I let go of the ladder[,] the boat just

went down, the swell went down, and I went down with

it.
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Thus, Morales' deposition testimony reflecting his own judgment

about the conditions for disembarkation foreclosed any

possibility of recovery from defendant.

On appeal, recognizing the damning nature of his own

testimony, Morales points to other evidence, which, he argues,

contradicts the version of events articulated in his deposition

and thereby creates a triable issue for a jury. He cites two

items, neither of which we find persuasive.

The first, deposition testimony of another harbor

pilot, Montes, who claimed to have seen the Malene heading due

north out to sea, suggests that the vessel at some unidentified

time was not turning to shelter the leeward side as requested by

Morales. But this fact, even if true, does nothing to

contradict the uncontested facts that Morales was in charge of

the Malene's course during the positioning maneuver and that he

and he alone decided when to jump. Furthermore, in his

submissions to the district court, plaintiff made only a general

reference to Montes' testimony without pinpointing where in that

89-page deposition support for that reference could be found.

This is precisely the situation that Local Rule 311.12 seeks to

avoid. As the district court generously observed, although

plaintiff did not fully comply with Local Rule 311.12, that

deficiency was "not at all outcome determinative in the instant
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case." In this circumstance, we would not be inclined to give

such hitherto unreferenced testimony dispositive effect on

appeal. Forgiving plaintiff's noncompliance with the local rule

would undercut our efforts over the years to enlist counsel as

aides to the court.

The other evidence from which plaintiff purports to

raise an issue of fact is Morales' affidavit, which was filed in

opposition to defendant's motion for summary judgment some

twenty months after his deposition, and which contradicts his

prior deposition testimony. In the affidavit, Morales averred

that the Malene turned ten degrees to port as requested, but

that was not enough. He returned from the ladder to the deck

and shouted to the captain to turn more to port. Then, the

affidavit states:

I waited some time and returned to the ladder. I

still did not have what I asked for. I told the men

standing by, [sic] about my problem. At this time no

one was complying with my requests. I had no choice

but to try to board the pilot boat under these

conditions. I waited for the correct moment to go

into the pilot boat. I would say it took me about a

half hour from the time I left the wheelhouse until I

was finally able to get on to the pilot boat. That

was the time I injured myself.

The disparity of views between those expressed in this

affidavit and those in Morales' earlier deposition is dramatic.

In his deposition, Morales testified that he leaped when he

thought it was safe. The affidavit, by contrast, describes him
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as having "no choice" but to jump when he did. The distinct

implication of Morales' deposition testimony was that the ship

was responding to his instructions; the affidavit states that

there was absolutely no compliance.

These disparities, however, do not create a jury

question. We have refused to allow issues of fact to be created

simply by submitting a subsequent contradictory affidavit.

Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1, 4-5 (1st Cir.

1994) ("When an interested witness has given clear answers to

unambiguous questions, he cannot create a conflict and resist

summary judgment with an affidavit that is clearly

contradictory, but does not give a satisfactory explanation of

why the testimony is changed."); see also Torres v. E.I. DuPont

De Nemours & Co., 219 F.3d 13, 20-21 (1st Cir. 2000). We adhere

to that practice now.

We therefore conclude as a matter of law that the

defendant was not at all negligent in its maneuvering of the

vessel during plaintiff's disembarkation. The two remaining

issues, ladder position and illumination, are likewise precluded

by plaintiff's own account. Morales admitted that there was

nothing physically wrong with the ladder and that it was secured

firmly. He did not contend that a lack of visibility on the

part of the harbor pilot had anything to do with the accident.
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Nor does he argue that improper lighting in any way affected his

decision when to disembark. There is simply no basis to

conclude that the ladder or visibility had anything to do with

the accident.

Appellant devotes a surprising amount of space in his

brief to arguing that the court improperly relied on the opinion

evidence of his former expert, who subsequently gave damaging

testimony supporting the defendant. Although this testimony was

also not controverted, it played no significant part in our

analysis.

Affirmed.