*Of the District of Maine, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 02-2592

JENNIE TORRES-FUENTES; JESSICA SANTIAGO-TORRES;

ANGEL M. SANTIAGO-TORRES,

Plaintiffs, Appellants,

v.

MOTORAMBAR, INC.,

Defendant, Appellee,

KIA MOTORS, INC.; CHARLIE AUTO, INC.;

JUNIOR PEREZ AUTO SALES; FIRSTBANK OF P.R.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

 Boudin, Chief Judge,

Howard, Circuit Judge,

and Carter,* Senior District Judge.

Rafael A. Oliveras Lopez De Victoria on brief for appellants.

Carlos Concepción-Castro with whom Agustín Collazo Law Offices

was on brief, for appellees.

February 8, 2005
1 Torres-Fuentes also invoked "pendent jurisdiction" under the

Civil Code of Puerto Rico in the complaint, but identified no

particular provisions of Puerto Rico law under which she was suing.

The district court construed the complaint as seeking recovery only

under the Act, and we follow its lead.

2 Torres-Fuentes failed to serve the other defendants, and the

claims against them were dismissed without prejudice.

-2-

HOWARD, Circuit Judge. Appellants Jennie Torres-Fuentes

and her minor children brought this action under the Magnuson-Moss

Warranty Act ("Act"), 15 U.S.C. § 2301 et. seq., against

Motorambar, Inc. and a host of other defendants claiming that the

KIA automobile that she purchased had severe mechanical defects.1

Torres-Fuentes sought restitution of the purchase price of the car

(plus financing costs) in the amount of $21,967.00, expenses of

$1,400.00, and compensation for mental and moral anguish totaling

$130,000.00.

Motorambar2 filed a motion to dismiss, which TorresFuentes did not oppose, on the ground that the complaint, on its

face, failed to meet the Act's jurisdictional requirement that the

amount in controversy equal or exceed $50,000. See 15 U.S.C. §

2310(d)(3)(B). In support of this argument, Motorambar asserted

that damages for mental and moral anguish were not available under

Puerto Rico law (the Act looks to state law to determine available

damages) on the facts alleged. The district court agreed and

dismissed the case with prejudice. Torres-Fuentes never asked the

district court to vacate or set aside the judgment. Instead, she
3 While Pomerleau dealt with a motion to dismiss under Fed. R.

Civ. P. 12(b)(6), we see no reason why the rule should not apply

here as well, as Motorambar's motion was solely directed to the

allegations of the complaint. 

4 Nor is this a case in which we would sua sponte recognize

plain error –- regardless of whether Torres-Fuentes' view of Puerto

Rico law is correct.

-3-

brought this appeal to argue that mental and moral anguish damages

are available under Puerto Rico law if, as she argues here, the

seller knew of the product's defective condition at the time of

sale. Alternatively, she argues that the dismissal should have

been without prejudice.

Torres-Fuentes's first argument is forfeited. We

recently held that "a party who fails to object to a motion to

dismiss must raise any claims of error by filing the appropriate

post-judgment motion, or forfeit his or her right to raise those

claims before this court." Pomerleau v. W. Springfield Pub. Sch.,

362 F.3d 143, 146-47 (1st Cir. 2004). "To hold otherwise would

undermine the ability of the district courts to serve as an

effective and efficient forum for the resolution of disputes." Id.

at 147.3 As set forth above, Torres-Fuentes filed neither a

response to the motion to dismiss nor an appropriate motion to

obtain reconsideration after judgment entered. Accordingly, her

arguments regarding the appropriateness of the dismissal are not

preserved.4 
5 At argument, Torres-Fuentes asked that we ignore the

jurisdictional limitations in the Act in the name of equity, as

most people who purchase automobiles would be barred from bringing

claims under the Act by the $50,000 jurisdictional threshold. As

this issue was not raised until argument, it is forfeited. See

United States v. Sacko, 247 F.3d 21, 24 (1st Cir. 2001). In any

event, as noted above, claims for less than $50,000 may be brought

under the Act in state court.

-4-

Torres-Fuentes's challenge to the form of the judgment is

a different story. Dismissals for lack of jurisdiction should

generally be without prejudice. See, e.g., Mills v. Harmon Law

Offices, 344 F.3d 42, 45-46 (1st Cir. 2003)(lack of subject matter

jurisdiction precludes district court from disposing of the case on

the merits). Indeed, in a case involving similar facts, the

Eleventh Circuit held that the plaintiff should not be barred from

raising the identical claims in state court under the Act after a

dismissal for failure to satisfy the $50,000 jurisdictional hurdle.

See Ansari v. Bella Auto. Group, Inc., 145 F.3d 1270, 1272 (11th

Cir. 1998). See also 15 U.S.C. § 2310(d)(1)(A)(the $50,000

jurisdictional requirement only applies to claims brought in

federal court; litigants may still raise smaller claims in state

court). The judgment is modified to provide that the dismissal is

without prejudice and is otherwise affirmed.5