United States Court of Appeals

For the First Circuit

No. 12-1193

JOSÉ A. NIEVES-ROMERO ET AL.,

Plaintiffs, Appellants,

v.

UNITED STATES ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella, Selya and Lipez,

Circuit Judges.

Carlos Rodríguez García, with whom Rodríguez García PSC was on

brief, for appellants.

Isabel Muñoz-Acosta, Assistant United States Attorney, with

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate

Division, and Julia M. Meconiates, Assistant United States

Attorney, were on brief, for appellees.

May 3, 2013
SELYA, Circuit Judge. When a dangerous condition exists

on commercial premises and causes injury to a business invitee,

tort liability typically depends on whether the owner/occupier knew

or reasonably should have known of the existence of the dangerous

condition. In the case at hand, the district court concluded that

the summary judgment record contained no significantly probative

evidence of the defendant's knowledge (actual or constructive) of

the dangerous condition and entered judgment accordingly. After

careful consideration, we affirm.

I. BACKGROUND

For ease in exposition, we treat this case as one brought

solely by José Nieves-Romero against the United States. We start 1

by rehearsing the facts and the travel of the case. Our task is

simplified by the procedural posture in which this appeal arises.

When the United States moved for summary judgment, it

accompanied its motion with a statement of material facts not in

dispute. See D.P.R. Civ. R. 56(b). The plaintiff opposed the

motion but did not proffer any counter-statement of material facts.

See D.P.R. Civ. R. 56(c). Thus, the district court correctly

deemed the government's statement of material facts admitted. See

The complaint lists additional plaintiffs (Nieves-Romero's 1

wife and their conjugal partnership) and additional defendants

(including federal agencies). But the claims of the other

plaintiffs are wholly derivative, and the other defendants are

superfluous. See Armor Elev. Co. v. Phoenix Urban Corp., 655 F.2d

19, 22 (1st Cir. 1981).

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D.P.R. Civ. R. 56(e) (explaining that "[f]acts contained in a

supporting or opposing statement of material facts . . . shall be

deemed admitted unless properly controverted"); see also Ruiz

Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000) (stating that

when a local rule requires all parties to accompany their summary

judgment papers with statements of material facts and the movant

complies but the nonmovant does not, the facts contained in the

movant's statement must be accepted as true for summary judgment

purposes); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95

(1st Cir. 1996) (same). We, too, draw the facts from that

statement.

On July 28, 2009, the plaintiff, who uses a wheelchair,

was on the premises of the Veterans Affairs (VA) Hospital in San

Juan. While awaiting x-ray results, he repaired to a handicappedaccessible public restroom. As he attempted to transfer himself

from his wheelchair onto the toilet, the toilet seat came loose and

he fell to the floor. He sustained injuries as a result of the

fall.

After filing an administrative claim, see 28 U.S.C.

§ 2675(a), the plaintiff sued the United States under the Federal

Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. He

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averred that the VA had negligently maintained the restroom and

that the loose toilet seat provoked his fall.2

On August 17, 2011, the United States moved for summary

judgment. The plaintiff opposed the motion. Discovery closed on

December 9, 2011. At that time, the government's fully briefed

motion for summary judgment was pending unresolved.

Two days later, the plaintiff moved to reopen discovery.

In support, his counsel described domestic difficulties that had

hampered his access to case files kept in his home office

(including the file in this case). The district court granted the

request and extended the close of discovery to January 30, 2012.

On January 5, 2012, the district court granted summary

judgment. The court determined that "there is simply no evidence

in the record to support that [the VA] had knowledge of the

dangerous condition, the loose toilet seat." The plaintiff moved

for reconsideration, but to no avail. This timely appeal followed.

II. ANALYSIS

We subdivide our analysis into two segments,

corresponding to the plaintiff's paired arguments.

The United States is the proper defendant in an FTCA case. 2

See 28 U.S.C. § 2679(a). Nevertheless, we sometimes use terms such

as "the government" or "the VA" as a shorthand for "the United

States."

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A. Summary Judgment.

We review an order for summary judgment de novo,

evaluating the facts and all reasonable inferences therefrom in the

light most flattering to the nonmoving party. Houlton Citizens'

Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). We

will affirm the entry of summary judgment only if the record

discloses no genuine issue of material fact and demonstrates that

the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a).

"This standard is favorable to the nonmoving party, but

it does not give him a free pass to trial." Hannon v. Beard, 645

F.3d 45, 48 (1st Cir. 2011). To be genuine, a factual dispute must

be built on a solid foundation — a foundation constructed from

materials of evidentiary quality. See Tropigas de P.R., Inc. v.

Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st

Cir. 2011); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.

1990). "[C]onclusory allegations, empty rhetoric, unsupported

speculation, or evidence which, in the aggregate, is less than

significantly probative" will not suffice to ward off a properly

supported summary judgment motion. Rogan v. City of Boston, 267

F.3d 24, 27 (1st Cir. 2001).

Against this backdrop, we turn to the record before us. 

As a sovereign nation, the United States is generally immune from

tort liability except to the extent that it consents to be sued. 

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See Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 39

(1st Cir. 2000). The FTCA comprises a limited waiver of federal

sovereign immunity, which allows the government to be held liable

for certain tortious acts and omissions. See Limone v. United

States, 579 F.3d 79, 88 (1st Cir. 2009). It specifies that

liability determinations are to be informed by "the law of the

place where the act or omission occurred." See 28 U.S.C.

§ 1346(b)(1). Here, then, we look to Puerto Rico tort law.

Article 1802 of the Civil Code imposes liability on "[a]

person who by an act or omission causes damage to another through

fault or negligence." P.R. Laws Ann. tit. 31, § 5141. A plaintiff

suing for negligence under Article 1802 must establish four things:

a duty requiring the defendant to conform to a certain standard of

care, a breach of that duty, proof of damage, and a causal

connection between the negligence and the damage. See Sociedad de

Gananciales v. González Padín Co., 17 P.R. Offic. Trans. 111, 125

(1986). In a premises liability case, fault ordinarily depends on

knowledge. With rare exceptions (not relevant here), a showing of

negligence requires a showing of the defendant's actual or

constructive notice of the dangerous condition. See Woods-Leber v.

Hyatt Hotels of P.R., Inc., 124 F.3d 47, 50 n.5 (1st Cir. 1997);

Mas v. United States, 984 F.2d 527, 530 (1st Cir. 1993); Cotto v.

Consol. Mut. Ins. Co., 16 P.R. Offic. Trans. 786, 794 (1985).

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Before us, the plaintiff challenges the district court's

determination that he failed to adduce evidence sufficient to

permit a finding that the VA had either actual or constructive

knowledge of the loose toilet seat. This challenge lacks force.

The plaintiff concedes — as he must — that the summary

judgment record is barren of any evidence of actual knowledge. He

asseverates, however, that there is significantly probative

evidence of constructive knowledge, that is, circumstances that

would suffice to support a finding that the VA should have known of

the loose toilet seat before the mishap occurred. We explore this

asseveration.

At the time material hereto, the VA had a contract with

DB&W Services Corporation (DB&W) for cleaning and maintenance

services at the VA Hospital. On the day of the plaintiff's

accident, an employee of DB&W, Ivelisse López, cleaned the restroom

in which the plaintiff fell. As part of her duties, she was

assigned to clean all fixtures in the lavatory, including the

toilet, every half-hour. There is no evidence in the record from

which we can tell when, prior to the accident, she last cleaned the

restroom. By the same token, there is no evidence from which a

rational factfinder could deduce that the toilet seat was loose

during the last of her visits. The record suggests the contrary;

it discloses that DB&W received no report of any problems with the

toilet seat on the day of the accident.

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Another entity, the Environment of Care Team (EOC),

performed scheduled inspections of the restroom (including the

toilet facilities) at roughly four-month intervals. The EOC

carried out such an inspection on June 5, 2009 and found nothing

amiss.

The plaintiff contends that because the hospital is a

high-traffic area, the restroom should have been inspected more

often than once every four months. The failure to conduct more

frequent inspections, he says, warrants an inference of negligence. 

This ipse dixit is profoundly flawed.

Even if the restroom facilities were inspected on a

biweekly schedule as the plaintiff advocates, there is no basis for

a finding that the defect about which the plaintiff complains would

have been discovered in time to prevent the accident. For aught

that appears, the toilet seat could have become unmoored minutes

before the plaintiff's fall.

The upshot is that the record contains no significantly

probative evidence as to when the dangerous condition arose. 

Consequently, the plaintiff's claim that the VA was on constructive

notice of the defect is without foundation. See Gomez v. Stop &

Shop Supermkt. Co., 670 F.3d 395, 397-98 (1st Cir. 2012) (affirming

summary judgment and stating that it "is a conventional approach to

premises liability" to require a plaintiff to "prove both that a

dangerous condition existed and that [the defendant] had notice,

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actual or constructive, of the dangerous condition but took no

corrective action"); Cotto, 16 P.R. Offic. Trans. at 795-96

(concluding that no liability could attach absent evidence tending

to show that defendant had notice of existence of dangerous

condition); see also McCarthy v. Nw. Airlines, Inc., 56 F.3d 313,

315 (1st Cir. 1995) (explaining that a party opposing summary

judgment cannot rely on the absence of evidence, but must "point to

specific facts that demonstrate the existence of an authentic

dispute").

In an effort to deflect the thrust of this reasoning, the

plaintiff points to evidence of measures taken to repair the toilet

after his accident. The law is clear, however, that evidence of

subsequent remedial measures is inadmissible to prove negligence. 

See Fed. R. Evid. 407.

The plaintiff seeks to bring his case within the confines

of an isthmian exception to this rule. He notes that evidence of

subsequent remedial measures may be admitted to prove "ownership,

control, or the feasibility of precautionary measures," id.; and he

argues that the evidence is admissible here to show the VA's

control over the restroom.

This is pure sophistry. In this case, the VA's control

over the restroom is not in dispute, so the exception is

inapplicable. And — contrary to the plaintiff's importunings — the

fact that the VA repaired the toilet after the accident does not

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establish a presumption of constructive notice of the dangerous

condition. Cf. Raymond v. Raymond Corp., 938 F.2d 1518, 1525 (1st

Cir. 1991) (concluding that evidence of post-accident repairs

"ha[d] little bearing on whether or not [a product] was

unreasonably dangerous" at the time of manufacture).

That ends this aspect of the matter. Simply put, the

summary judgment record contains no evidentiary support for the

plaintiff's bare allegation that the VA, prior to the accident, had

either actual or constructive knowledge of the loose toilet seat. 

It follows inexorably, as night follows day, that a rational

factfinder could not conclude that the VA breached its duty of care

in the circumstances of this case. See Woods-Leber, 124 F.3d at

51-52 (affirming summary judgment where record failed to show that

hotel had actual or constructive knowledge of existence of

dangerous condition).

B. Effect of Discovery Extension.

The plaintiff has a fallback position: he complains that

the district court should not have ruled on the summary judgment

motion prior to the expiration of the extended discovery period. 

We review the district court's decision to proceed with the

adjudication of the summary judgment motion for abuse of

discretion. See Vélez v. Awning Windows, Inc., 375 F.3d 35, 41

(1st Cir. 2004).

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We discern no abuse of discretion. To begin, the fact

that discovery is still open does not bar a district court from

resolving a fully briefed summary judgment motion. See, e.g.,

Dulany v. Carnahan, 132 F.3d 1234, 1238-39 (8th Cir. 1997); King v.

Cooke, 26 F.3d 720, 725-26 (7th Cir. 1994); see also Fla. Power &

Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1316 (11th Cir.

1990) (explaining that "it would be inappropriate to limit summary

judgment to cases where discovery is complete in light of the

valuable role served by summary judgment and the commitment of

discovery issues to the sound discretion of the trial judge"

(internal quotation marks omitted)).

Here, moreover, the plaintiff's request to reopen

discovery was not coupled with a request to withhold adjudication

of the pending summary judgment motion. Nor did the plaintiff

inform the district court, at any time prior to the granting of

summary judgment, that his discovery-extension request was tied to

the pending summary judgment motion.

Indeed, the timing of the plaintiff's motion to extend

the discovery period suggests the absence of any link to the

summary judgment motion. The discovery-extension motion was not

filed until more than two months after the plaintiff filed his

opposition to summary judgment. The new motion did not refer to

summary judgment at all, nor did it suggest that additional

discovery would bolster the plaintiff's ability to prove liability. 

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It is, therefore, unsurprising that the district court granted the

discovery-extension motion by a simple docket entry, which made no

reference to the pending summary judgment motion.

To cinch matters, Federal Rule of Civil Procedure 56(d)

supplies a ready mechanism for a party to obtain more time to

gather facts necessary to oppose a motion for summary judgment.3

See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (explaining

that "[a]ny potential problem with [a] premature [motion for

summary judgment] can be adequately dealt with under [this rule]"). 

It provides, in relevant part, that if a party opposing summary

judgment shows that "for specified reasons, [he] cannot present

facts essential to justify [his] opposition," the district court

may grant appropriate relief. Fed. R. Civ. P. 56(d). When

properly deployed, this safety net guards against precipitous

grants of summary judgment. See Rivera-Torres v. Rey-Hernández,

502 F.3d 7, 10 (1st Cir. 2007).

For present purposes, it is important to emphasize that

Rule 56(d) is not self-executing. A party seeking the shelter of

the rule must invoke it. See Jones v. Secord, 684 F.3d 1, 6 (1st

Cir. 2012); C.B. Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41,

Rule 56(d) was formerly Rule 56(f). This change in taxonomy 3

is of no moment; the textual differences between current Rule 56(d)

and former Rule 56(f) are purely stylistic. See Fed. R. Civ. P. 56

advisory committee's note; see also Godin v. Schencks, 629 F.3d 79,

90 n.19 (1st Cir. 2010). Thus, case law developed under former

Rule 56(f) remains controlling, and we cite to it where applicable. 

See Jones v. Secord, 684 F.3d 1, 5 n.2 (1st Cir. 2012).

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44 (1st Cir. 1998). A party cannot have two bites at the cherry:

he ordinarily cannot oppose a summary judgment motion on the merits

and, after his opposition is rejected, try to save the day by

belatedly invoking Rule 56(d). See C.B. Trucking, 137 F.3d at 44. 

Rather, he must stake his claim to protection under Rule 56(d) at

the time he responds to the summary judgment motion (or, at least,

at some time before the nisi prius court passes on that motion).

The plaintiff did not seasonably invoke the protection of

Rule 56(d). To invoke Rule 56(d), a party must furnish the

district court with a timely statement that "(i) explains his or

her current inability to adduce the facts essential to filing an

opposition, (ii) provides a plausible basis for believing that the

sought-after facts can be assembled within a reasonable time, and

(iii) indicates how those facts would influence the outcome of the

pending summary judgment motion." Vélez, 375 F.3d at 40. Here,

however, the plaintiff did nothing that, by any stretch of even the

most fertile imagination, might be thought to satisfy these

requirements. He opposed summary judgment head-on, and his

opposition made no mention either of Rule 56(d) or of a need to

obtain more information in order to contest summary judgment. In

these circumstances, the district court had no sua sponte

obligation to determine whether Rule 56(d) might be in play. See

Secord, 684 F.3d at 6 ("It is not the court's responsibility to dig

through the record in a particular case unsolicited and determine

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whether some timing problem might exist in connection with a

summary judgment motion.").

To be sure, once the district court granted summary

judgment, the plaintiff attempted (for the first time) to forge a

link between the discovery-extension motion and the summary

judgment motion. This was too little and too late, and the

plaintiff offered no convincing explanation for his failure to

forge such a link earlier. The district court denied the motion

for reconsideration out of hand and, given the circumstances, we

cannot say that its ruling was an abuse of discretion. See Vélez,

375 F.3d at 41.

When the court entered summary judgment, the extended

discovery period had only a little more than three weeks left to

run. There is no basis for a finding that the plaintiff

detrimentally relied on these waning few weeks of the extended

discovery period. For one thing, the record contains nothing to

indicate that the plaintiff actually conducted discovery after the

district court granted the discovery-extension motion. To the

contrary, the plaintiff's motion for reconsideration of the summary

judgment order, filed more than four weeks after the court had

authorized the reopening of discovery, states that he "has not been

able to conduct discovery."

For another thing, the plaintiff states his intention to

take depositions of certain persons with knowledge, but it does not

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appear that those depositions had even been scheduled — let alone

taken — at the time when he sought reconsideration. Given that the

plaintiff had already allowed most of his extended time to lapse

without assiduously pursuing any additional discovery, any

inference of reliance on the extension is simply implausible. 

Thus, any potential concern about unfairness in the timing of the

court's entry of summary judgment is dissipated by the utter

absence of any evidence that the plaintiff actually relied on the

discovery extension.

Actions have consequences; and inaction, too, has

consequences. Because the plaintiff did not make the slightest

effort either to comply with the requirements of Rule 56(d) or to

conduct discovery diligently, the district court did not abuse its

discretion in ruling on the fully briefed summary judgment motion

prior to the conclusion of the extended discovery period. See,

e.g., Secord, 684 F.3d at 6; United States v. San Juan Bay Marina,

239 F.3d 400, 408 (1st Cir. 2001); Meehan v. Town of Plymouth, 167

F.3d 85, 92 n.7 (1st Cir. 1999).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the judgment of the district court.

Affirmed.

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