Of the Tenth Circuit, sitting by designation. * Not F or Publication in West's Fe deral Reporter

Citation Limited P ursuan t to 1st C ir. Loc. R. 32.3 

# U nit edStates C ou rt o f App eal s

For th e Firs t C ircu it

No. 06-1040 FREIGHTLINER LLC, Plaintiff, Appellee,

v . PUERTO RICO TRUCK SALES, INC./FREIGHTLINER DE PUERTO RICO, d/b/a Freightliner Truck Sales and Services; UNITED CAPITAL & LEASING OF PUERTO RICO; LUIS CARRERAS; JANE DOE; CONJUGAL PARTNERSHIP L. CARRERAS/DOE; JOSE TORRES; JANE ROE; CONJUGAL PARTNERSHIP TORRES/ROE; MANUEL CARRERAS; MARY DOE; CONJUGAL PARTNERSHIP M. CARRERAS/DOE,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO [Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before Howard, Circuit Judge, Baldock and Stahl, Senior Circuit Judges.

* Javier López-Pérez and Ramo n E . Dapena on the briefs, for Appellants. Richard Graffam and Roberto Abesad a-Agüet on the brief for Appellee.

November 21, 2006-2- BALDOCK, Senior Circuit Judge. Defendants appeal the district court’s denial of the i r m o tion for preliminary injunction and several evidentiary ruling s made during the course of the preliminary injunction hearing. We have jurisdiction to review t h i s matter pursuant to 28 U.S.C. § 1292. Because the district court subsequently dismissed Defendants’ counterclaim due to discovery violations, we dismiss Defendants’ interlocutory appeal as moot. I. Plaintiff Freightliner man u factures and sells trucks worldwide. In 1996, Plaintiff and Defendant Puerto Rico Truck Sales, Inc., executed an agreement (“Ag r e e m e nt”) for the distr i b u tion of Freightliner products in Puerto Rico. Defendant Freightliner Truck Sales and Services (“FTSS”) later assumed Puerto Rico Truck Sales position in the Agreement.

On September 10, 2004, Plaintiff terminated the Agreement with FTSS and on Sept e m b e r 1 3, 2004, it filed a complaint against Defendants for damages an dcollection of monies. Plaintiff based its termination of the Agreement on FTSS’s all e g ed lack of payment of substantial overdue amounts a n d FTSS’s alleged illegal or wrongful shipment and importation of 18 Freightliner trucks into P u e r t o Rico. In-3-

addition to damages, Plaintiff sought a declaratory judgment on the validity of its termination of the Agreement.

De f e n d a n t s c o u n t e r c l a i m e ds e e k i n g d a m a g e s a nd alleging Plaintiff’s cancellation of the Agreement violated their rights under Puerto Rico Law 75, P.R. Laws A nn. tit. 10, § 278 (“Law 75”), a statute prohibiting a principal from terminating without just cause a distribution agreement with its dealer. In connection with their counterclaim and pursuant to Law 75, Defendants file d a motion for a temporary restraining order (“TRO”) and a motion for a preliminary injunction. Defendants requested the court dissolve Plaintiff’s cancellation of the Agreement and enjoin Plaintiff from entering into a distribution agreement with another Pue r t o Rican distributor. The district court denied the motion for TRO and referre d t h e motion for prelimi n a r y injunction to the magistrate judge for a report and recommendation (R&R). Aft e r a lengthy hearing, the magistrate judge issued a R&R r e c o m m ending denial of Def e n dants’ motion for preliminary injunction, concluding Defendants failed to establish the prerequisites for preliminary injunctive relief under Law 75.

Defendants timely objected to the R&R. The district court overruled the objections and adopted the R&R. In a separate o r d e r , the court dismissed Defendants’-4-

counterclaims with prejudice due to discovery violations, and entered a partial judgment as to those claims. See Fed. R. Ci v . P . 3 7 ( b ) ( 2 ) ( C ) . D e f e n d a n t s s o u g h t c e r t i f i c a t i o n to appeal the district court’s partial judgment pursuant to Fed. R. Civ. P. 54(b). The district court denied Defendants’ re q u e s t, finding the partial judgment did not meet the criteria for immediate appealability set forth in Spiegel v. The Trustees of Tufts College, 8 4 3 F . 2 d38, 43 (1st Cir. 1988). Defenda n t s f iled a notice of appeal seeking review of the district court’s denial of their motion f o r p r e l i m i n a r yi n j u n c t i o n a n dt h e c o u r t ’ s d i s m i s s al of their counterclaims. II.

Plaintiff argues Defendants’ appeal is moot because the district court dismissed Defendan t s’ counterclaim pursuant to Law 75. We agree. Defendants’ r e q u e s t for a preliminary injunction was specifically grounded in its counterclaim pursuant to Law 75. Because D e f endants’ counterclaim no longer exists, they would have no recourse in the district court even if we reverse its denial of their motion for preliminary injunction. Chaparro-Febus v. International Longshoremen’s Ass’n, Local 1575, 983 F.2d 325, 331 n. 5 (1st Cir. 1992) (noting “preliminary injunctions, which are interlocutory in nature, cannot-5-

survive a final order of dismissal”). Thus, Defe n d a nts’ appeal of the d istrict court’s denial of their motion for preliminary injunction is moot. Id. (“Because the district court’s denial of the preliminary injunction was merged in the final judgment dismissing the case, plaintiffs’ complaints regarding the preliminary injunction are moot.”) (citations and quotations omitted).

In their reply brief, Defendants maintain this court can entertain their interlocu t ory appeal because the notice of appeal seeks revi e w of the district court’s partial judgment disposing of their counterclaim. We find Defen d a n ts waived any arguments related to the district court’s dismissal of their counterclaim in this interlocutory appeal. “[W]e have steadfastly deeme dw a i ved issues raised o n appeal in a perfunctory manner, not accompanied by developed argumentation.” Massachusetts Sch.

o f L a w v. ABA, 142 F.3d 26, 43 (1st Cir. 1998) (citation omitted). Defendants m a k e no mention of the issue in their ope n i ng brief and only briefly address the issue in their reply brief without explaining how th e d i s trict court erred in dismissing t h e i r counterclaim or in denying their motion for a Rule 54(b) certificate of appealability.-6- III. Based upon the foregoing, Defendants’ appeal, Defendants’ Motion to Supplement the Record w i t h N ew Evidence, and Plaintiff’s Motion to S t r i ke are DISMISSED as moot. We make no comment as to the remaining matters before the district court.