[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 01-2077

JULIAN FERREIRA-PLASENCIA,

Plaintiff, Appellant,

v.

JOHN H. RUGINSKI, JR.,

CHRIS MARTINEZ,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

 Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Julian Ferreira-Plasencia on brief pro se.

James Moretti on brief for appellees.

May 2, 2002
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Per Curiam. Julian Ferreira-Plasencia, proceeding

pro se, appeals from the district court’s grant of summary judgment

to defendants John H. Ruginski, Jr. and Chris Martinez in this

diversity-based legal malpractice suit. Below, the plaintiff

claimed that the defendants, his former attorney and the attorney's

legal assistant, failed to file a timely notice of appeal from an

Immigration Judge’s denial of his application for a waiver of

deportability. He further contended that the defendants did not

advise him as to alternative methods to seek relief from

deportation. Subsequent to the dismissal of his untimely appeal,

Ferreira-Plasencia was deported. At some time thereafter, he reentered the country, and was later convicted for illegal re-entry,

8 U.S.C. § 1326. 

The district court adopted a magistrate judge’s report

and recommendation and granted summary judgment to the defendants

because Ferreira-Plasencia offered no evidence to establish that

the defendants’ failure to file his notice of appeal in a timely

fashion actually caused harm. The court further found that

Ferreira-Plasencia had not provided any expert testimony concerning

the relevant standard of care for his claim that the defendants did

not properly advise him of alternative avenues of relief from

deportation. 
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Upon our de novo review, we find that the absence of

evidence to support essential elements of Ferreira-Plasencia’s

claims is fatal to his case. He offered no evidence to establish

that the defendants' untimely filing of his notice of appeal caused

him to be deported and subsequently convicted for illegal re-entry

into the United States. He also failed to present expert testimony

establishing the standard of care owed to him on his claim that

defendants did not properly advise him as to alternative avenues

for relief from deportation. Accordingly, the district court

properly granted summary judgment. 

On appeal, Ferreira-Plasencia faults the district court

for not sua sponte granting him a continuance, so he could obtain

the testimony of an expert. He contends that Rule 56(f) of the

Federal Rules of Civil Procedure required the court to either deny

the motion for summary judgment or grant him a continuance. But

he did not seek to invoke Rule 56(f) below, and we have stated that

"in order to savor the balm of Rule 56(f), a party must move for

a discovery continuance in a timely fashion." Mass. Sch. of Law

at Andover, Inc. v. Am. Bar. Ass'n., 142 F.3d 26, 44 (1st Cir.

1998)(internal quotation marks omitted). Not only did FerreiraPlasencia fail to make a timely motion for a Rule 56(f)

continuance, but he also failed to make any motion for any sort of

continuance. 
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We add, moreover, that a movant must generally show

diligence in conducting discovery. Simas v. First Citizens’ Fed.

Credit Union, 170 F.3d 37, 45 n.4 (1st Cir. 1999). FerreiraPlasencia did not state what attempts he had made to obtain

evidence to support his claim. Accordingly, we find no merit in

his argument that the district court erred by not spontaneously

granting him an unrequested continuance.

Ferreira-Plasencia also argues, for the first time on

appeal, that the district court should have given him "fair notice"

of the requirements of Rule 56 of the Federal Rules of Civil

Procedure and the consequences of failing to properly oppose such

a motion. The magistrate judge’s report and recommendation clearly

outlined these requirements, and (assuming, without deciding, that

notice was required) we conclude that Ferreira-Plasencia thus

received "fair notice" of the rule. Furthermore, because he did

not object to the magistrate’s recommendation that summary judgment

be granted to the defendants on the ground that he had no notice

of the requirements of the rule, Ferreira-Plasencia has waived the

argument. See Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d

603 (1st Cir. 1980)(holding that the failure to file timely,

specific objections to a magistrate’s report and recommendation

constitutes waiver of the right to appeal the district court’s

decision).
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The district court’s grant of summary judgment to the

defendants is affirmed.