United States Court of Appeals

For the First Circuit

No. 03-2277

MINERVA VÉLEZ A/K/A

MINERVA VÉLEZ-CORTES

A/K/A MINERVA VÉLEZ-CORTEZ,

Plaintiff, Appellee,

v.

AWNING WINDOWS, INC. AND ESTATE OF ISMAEL NIEVES-VALLE,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Arturo Luciano Delgado for appellants.

Celina Romany, with whom Juan M. Frontera and Celina Romany

Law Offices were on brief, for appellee.

July 9, 2004
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SELYA, Circuit Judge. This appeal tells a cautionary

tale of the risks run by parties who adopt a laissez-faire attitude

toward court-imposed deadlines. The defendants in this case —

Awning Windows, Inc. (AWI) and the Estate of Ismael Nieves-Valle

(the Estate) — acted in that fashion. The district court, after

patiently granting several extensions and issuing pointed warnings,

finally decided that enough was enough. It held the defendants to

the deadlines previously announced, denied certain of their motions

for noncompliance with the court's scheduling order, disregarded

the defendants' tardy opposition to a motion for partial summary

judgment, took the proffer of plaintiff-appellee Minerva VélezCortes (Vélez) as true, and resolved the issue of liability in

Vélez's favor. A jury thereafter awarded Vélez nearly threequarters of a million dollars in damages. The defendants appeal.

Discerning no semblance of error, we affirm.

I. TRAVEL OF THE CASE

Vélez began work for a company owned by Ismael NievesValle (Nieves) in 1987. In time, Vélez and Nieves became

romantically entangled. Vélez claims that after she broke off

their adulterous affair, she was sexually harassed. She further

claims that, in March 2000, this harassment culminated in her

dismissal.

On March 26, 2002, Vélez commenced an employment

discrimination action against AWI and Nieves in Puerto Rico's
1Nieves owned several companies. During the relevant time

frame, Vélez worked for two of them. These companies merged in

2002 to form AWI.

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federal district court.1 Her complaint invoked 42 U.S.C. §§ 2000e

to 2000e-16 (Title VII) and a plethora of Puerto Rican

discrimination statutes. See, e.g., 29 P.R. Laws Ann. §§ 146, 155-

155l. Pretrial discovery revealed a dalliance gone sour and, on

the plaintiff's account, an ensuing campaign of harassment leading

to her discharge.

As this appeal turns largely on the travel and procedural

history of the case, we eschew any further discussion of the facts

at this point. Instead, we set out a procedural chronology (each

date refers to the time when the filing in question was entered on

the district court's docket).

1. March 26, 2002. The plaintiff instituted

the action.

2. April 30, 2002. The plaintiff moved for

the entry of default, see Fed. R. Civ. P.

55(a), because the defendants failed to answer

or otherwise plead within the allotted twentyday period.

3. May 3, 2002. The district court ordered

the defendants to show cause, on or before May

15, why a default should not be entered.

4. May 22, 2002. The plaintiff renewed her

motion for entry of default, noting that

neither defendant had responded to the showcause order.

5. May 31, 2002. The district court

defaulted both defendants.
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6. June 6, 2002. Citing Nieves's sudden

death in a helicopter accident on May 25, AWI

asked the district court to set aside the

default and afford the defendants forty-five

additional days within which to answer the

complaint.

7. June 24, 2002. The district court granted

the plaintiff's request to substitute the

Estate in Nieves's stead as a party defendant.

See Fed. R. Civ. P. 25(a)(1). The court also

granted AWI's request to set aside the default

and ordered the defendants to answer or

otherwise plead by July 19. The court warned

that failure to comply "on or before the

aforementioned date SHALL result in the Court

re-entering default and proceeding with a

Damages Hearing."

8. July 11, 2002. The defendants answered

the plaintiff's complaint. Discovery then

ensued.

9. November 15, 2002. The plaintiff moved

for partial summary judgment on the issue of

liability.

10. December 2, 2002. The defendants'

opposition to the motion for partial summary

judgment was due, but none was filed.

11. December 5, 2002. The district court

granted the defendants until December 13 to

submit their opposition.

12. December 13, 2002. Instead of filing

their opposition by the extended deadline, the

defendants moved for a further extension.

13. December 17, 2002. The district court

held an omnibus scheduling conference (the

OSC).

14. December 20, 2002. The court entered an

order that, inter alia, directed the

defendants to file (i) no later than January

7, 2003, answers to the plaintiff's
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interrogatories; (ii) no later than January

17, 2003, a legal memorandum, concerning the

"admissibility of hearsay and other evidence"

following a party's death prior to discovery;

and (iii) no later than January 17, 2003, a

memorandum detailing AWI's finances and the

Estate's assets. The court admonished that

the defendants' failure to comply with any of

these directives would "result in sanctions

including . . . elimination of all defenses

set forth in their answer to the complaint."

In tandem with these orders, the court

further extended the time for filing an

opposition to the plaintiff's motion for

partial summary judgment. The court fixed

February 20 as the due date for the

opposition, warned the defendants that "[n]o

extensions will be given," and advised them

that, should they "fail to file an opposition

on or before the aforementioned date the Court

SHALL consider Plaintiff's motion as

unopposed."

15. January 7, 2003. The defendants served

their answers to interrogatories.

16. January 15, 2003. The defendants filed a

motion to dismiss, alleging that the plaintiff

did not have a cause of action against Nieves

(and, therefore, could not sue the Estate)

because supervisors are not personally liable

under Title VII.

17. January 17, 2003. The defendants moved

for an extension of time, up to and including

February 4, 2003, within which to file the

hearsay memorandum and comply with the

remaining commands of the OSC. Although the

court took no immediate action on this motion,

the defendants failed to make the required

filings.

18. February 5, 2003. Citing the plaintiff's

delay in completing her deposition and answers

to interrogatories, the defendants moved to

extend the deadline for filing an opposition
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to the motion for partial summary judgment

from February 20 to February 28.

19. February 20, 2003. (This was the date

set by the district court for the filing of

the opposition to the motion for partial

summary judgment.) Although the court had not

yet ruled on their last previous motion for an

extension, the defendants asked for another

extension, this time to March 3, for the

filing of their opposition.

20. March 18, 2003. The defendants made

multiple submissions: (i) they finally filed

their opposition to the plaintiff's motion for

partial summary judgment; (ii) in the same

memorandum, doubling in brass as a motion to

dismiss, they claimed for the first time that

the plaintiff had failed to file a timely

administrative complaint with the Equal

Employment Opportunity Commission (the EEOC)

and that, as a consequence, her action should

be jettisoned for want of subject-matter

jurisdiction; and (iii) in a separate

memorandum, they addressed the district

court's hearsay concerns.

 

21. March 20, 2003. Faithful to its earlier

warning that no extensions of time would be

countenanced, the district court disregarded

the defendants' out-of-time filings, denied

their sundry extension requests, and deemed

the plaintiff's motion for partial summary

judgment unopposed. As a sanction for the

defendants' failure to comply with the court's

earlier order to submit both a legal

memorandum anent hearsay evidence (which had

been filed over two months late) and a

memorandum detailing the defendants' financial

resources (which had not been filed at all),

the court denied the defendants' motion to

dismiss the supervisory liability claim.

22. March 23, 2003. The district court

refused to dismiss the case for lack of

subject-matter jurisdiction.
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23. March 25, 2003. The district court

handed down an opinion in which it granted the

plaintiff's motion for partial summary

judgment. See Vélez Cortes v. Nieves Valle,

253 F. Supp. 2d 206 (D.P.R. 2003). That

decision resolved the issue of liability.

24. July 22-24, 2003. The district court

convened a damages hearing before a jury and,

pursuant to the jury's verdict, entered final

judgment for the plaintiff in the sum of

$740,000.

25. August 15, 2003. The defendants filed a

timely notice of appeal.

II. DISCUSSION

The defendants' assignments of error can be grouped under

three headings: (i) errors concerning the lower court's entry of

partial summary judgment; (ii) errors concerning the lower court's

denial of the defendants' two motions to dismiss; and (iii) errors

pertaining to the lower court's issuance of an order for legal

memoranda anent hearsay evidence. We address each grouping in

turn.

A. The Motion for Partial Summary Judgment.

The defendants' principal complaint is that the district

court erred in granting the plaintiff's motion for partial summary

judgment without considering their late-filed opposition. On the

defendants' view of the proceedings, the trial judge's decision to

commit the case to a fast-track schedule caused him to turn a blind

eye to the defendants' pressing need for additional time to conduct

discovery and muster their opposition.
2The rule provides that:

Should it appear from the affidavits of a

party opposing the motion that the party

cannot for reasons stated present by affidavit

facts essential to justify the party's

opposition, the court may refuse the

application for judgment or may order a

continuance to permit affidavits to be

obtained or depositions to be taken or

discovery to be had or may make such other

order as is just.

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

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We agree with the defendants that trial courts should

refrain from entertaining summary judgment motions until after the

parties have had a sufficient opportunity to conduct necessary

discovery. See Carmona v. Toledo, 215 F.3d 124, 132-33, 135-36

(1st Cir. 2000); Berkovitz v. Home Box Office, Inc., 89 F.3d 24,

29-30 (1st Cir. 1996). It follows that when a party moves for

summary judgment, the opposing party must be afforded a fair chance

to obtain and synthesize available information before being

required to file an opposition. Our cases make it pellucid,

however, that this prophylactic rule is not self-executing. A

party who legitimately requires more time to oppose a motion for

summary judgment has a corollary responsibility to make the court

aware of its plight.

Typically, this is accomplished by way of either a Rule

56(f) motion or its functional equivalent.2 See Vargas-Ruiz v.

Golden Arch Dev., Inc., 368 F.3d 1, 3-4 (1st Cir. 2004); Corrada
3We note that these motions, collectively, sought to extend

the time for filing the defendants' opposition to March 3, 2003.

In point of fact, the opposition was not filed until March 18,

2003.

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Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 44 (1st Cir. 2001).

The record on appeal contains nothing of the sort: the defendants

neither invoked nor substantially complied with Rule 56(f). To

benefit from the protections of Rule 56(f), a litigant ordinarily

must furnish the nisi prius court with a timely statement — if not

by affidavit, then in some other authoritative manner — 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. See

Vargas-Ruiz, 368 F.3d at 4; Paterson-Leitch Co. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988). Such a

litigant also must have exercised "due diligence both in pursuing

discovery before the summary judgment initiative surfaces and in

pursuing an extension of time thereafter." Resolution Trust Corp.

v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994).

The defendants' motions to extend time, filed on February

5 and February 20, do not satisfy these criteria.3 Neither motion

identifies a single sought-after fact. Neither motion indicates

whether the desired information can be gathered within a reasonable
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interval. And neither motion relates how that information, if

unearthed, would influence the outcome of the pending summary

judgment motion.

What the February motions do attempt to provide are

reasons why an extension should be granted. The defendants

attribute their predicament to a week-long delay in the taking of

the plaintiff's deposition, a week-long delay in the plaintiff's

service of answers to interrogatories, and defense counsel's

professed "need" to travel to Florida "in matters regarding to

[sic] our legal profession." These are more excuses than reasons.

The deposition was completed a full two weeks before the courtappointed deadline for filing an opposition, and the plaintiff

answered the interrogatories in approximately the same time frame.

Last — but far from least — the fact that counsel may have bitten

off more than he could chew does not exempt him from meeting courtappointed deadlines. See Mendez v. Banco Popular, 900 F.2d 4, 6-7

(1st Cir. 1990) (collecting cases); see also Pinero Schroeder v.

FNMA, 574 F.2d 1117, 1118 (1st Cir. 1978) (per curiam) ("Most

attorneys are busy most of the time and they must organize their

work so as to be able to meet the time requirements of matters they

are handling or suffer the consequences.").

The defendants now try to rectify some of their earlier

omissions. In this court, they attribute the need for a further

extension to a motley of events, including Nieves's untimely
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demise, a switch in counsel resulting from his death, and the fact

that the plaintiff's attorneys closed their offices for two weeks.

These importunings are too little and too late. A party who seeks

to be relieved from a court-appointed deadline has an obligation,

at a bare minimum, to present his arguments for relief to the

ordering court. An unexcused failure to do so constitutes a

waiver. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st

Cir. 1991) (explaining that matters not raised squarely in the

district court cannot be raised for the first time on appeal).

Here, moreover, the defendants' proffered reasons are

less than compelling. Nieves died on May 25, 2002 — almost nine

months before the due date for the defendants' opposition. The

switch in counsel occurred in that same time frame — and in any

event, a party's decision to discharge one lawyer and retain

another does not serve as a free pass to ignore court-appointed

deadlines. Finally, the relevance of the office closing is less

than obvious, and the defendants do nothing to enlighten us.

To cinch matters, it would strain credulity to

characterize the defendants' pretrial discovery efforts in this

case as duly diligent. As the chronology indicates, see supra Part

I, the defendants dragged their feet from the very inception of the

action. They had ample time to conduct discovery (roughly one year

elapsed between the start of suit and the entry of partial summary

judgment). By the same token, they had ample time to prepare an
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opposition (the court allowed them over three months from the date

the plaintiff filed her motion for partial summary judgment and

approximately two months from the date of the OSC). In the

ordinary course, a party protesting what he believes to be a

gadarene rush to judgment in the face of delayed discovery must

have offered to the district court a credible and convincing

explanation for his inability to obtain the necessary information

within the time allotted. See Vargas-Ruiz, 368 F.3d at 5. The

defendants' explanations fall far short.

Appellate review of a district court's case-management

decisions is solely for abuse of discretion. Rosario-Diaz v.

Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998); C.B. Trucking, Inc. v.

Waste Mgmt., 137 F.3d 41, 44 (1st Cir. 1998). Given the

circumstances at hand, the district court plainly did not abuse its

discretion in proceeding, when it did, to decide the motion for

partial summary judgment. After all:

Rules are rules — and the parties must play by

them. In the final analysis, the judicial

process depends heavily on the judge's

credibility. To ensure such credibility, a

district judge must often be firm in managing

crowded dockets and demanding adherence to

announced deadlines. If he or she sets a

reasonable due date, parties should not be

allowed casually to flout it or painlessly to

escape the foreseeable consequences of

noncompliance.

Mendez, 900 F.2d at 7.
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The defendants have a fallback position: they claim that

genuine issues of material fact existed in the record and that the

plaintiff was not entitled to a liability finding as a matter of

law. We review the merits of the entry of partial summary judgment

de novo. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.

1990). Our response will be brief.

Because the defendants failed to file an opposition to

the motion for partial summary judgment by the court-appointed

deadline (February 20, 2003), the district judge was entitled to

consider the motion as unopposed and to disregard a subsequently

filed opposition. See Mendez, 900 F.2d at 7-8 (collecting cases).

In the same vein, the court was obliged to take the plaintiff's

statement of uncontested facts as true. See D.P.R.R. 311.12; see

also Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 14-15 (1st Cir.

2004).

That does not mean, however, that summary judgment should

automatically follow. Even when faced with an unopposed motion for

summary judgment, a court still has the obligation to test the

undisputed facts in the crucible of the applicable law in order to

ascertain whether judgment is warranted. See Mendez, 900 F.2d at

7; see also Fed. R. Civ. P. 56(e) (instructing that if the adverse

party fails to respond, "summary judgment, if appropriate, shall be

entered") (emphasis supplied). The district court fully understood

this nuance. It proceeded to align the undisputed facts and apply
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the proper adjudicative rules for sexual harassment claims to those

facts. We need not dwell on the court's resulting handiwork.

By their inaction, the defendants allowed the plaintiff

to configure the summary judgment record. Confronted with a set of

facts that pointed unerringly in one direction, the district court

did its duty. "We have long proclaimed that when a lower court

produces a comprehensive, well-reasoned decision, an appellate

court should refrain from writing at length to no other end than to

hear its own words resonate." Lawton v. State Mut. Life Ins. Co.,

101 F.3d 218, 220 (1st Cir. 1996). That principle pertains here.

On the merits, therefore, we affirm the district court's entry of

partial summary judgment for substantially the reasons elucidated

in the district court's erudite rescript. See Vélez Cortes v.

Nieves Valle, 253 F. Supp. 2d 206, 212-15 (D.P.R. 2003).

B. The Motions to Dismiss.

The district court denied both of the defendants' motions

to dismiss in the course of sanctioning them for their

noncompliance with the OSC order. A disgruntled litigant bears a

heavy burden in attempting to challenge the imposition of a

sanction arising out of the violation of a case-management order.

See United States v. One 1987 BMW 325, 985 F.2d 655, 657 (1st Cir.

1993). Appellate review of such orders is for abuse of discretion.

Rosario-Diaz, 140 F.3d at 315. An abuse of discretion presents

itself "when a material factor deserving significant weight is
4While it may be true that the defendants furnished some sort

of financial statement to the plaintiff on December 6, 2002 (prior

to the OSC), the district court obviously believed that more was

required. The defendants must have understood this; after all,

they abjured any objection when the court entered the December 20

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ignored, when an improper factor is relied upon, or when all proper

and no improper factors are assessed, but the court makes a serious

mistake in weighing them." Indep. Oil & Chem. Workers of Quincy,

Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.

1988).

Where, as here, a trial court is faced with flagrant

disregard of a pretrial order, the court is authorized, either upon

motion or sua sponte, to "make such orders with regard thereto as

are just." Fed. R. Civ. P. 16(f). Rule 16(f) incorporates by

reference the compendium of remedies listed in Fed. R. Civ. P. 37.

That compendium includes "[a]n order refusing to allow the

disobedient party to support or oppose designated claims or

defenses." Fed. R. Civ. P. 37(b)(2)(B). The trial judge in this

case acted under the authority granted by this rule. The

defendants contend that, in doing so, he ignored two material

factors deserving significant weight and, thus, abused his

discretion. See Indep. Oil & Chem. Workers, 864 F.2d at 929.

First, the defendants insist that they substantially

complied with the requirements of the OSC order. Their insistence

is belied by the record. In the first place, the financial

disclosure required by the court's order was never made.4 In the
order mandating fuller financial disclosure. Their present

contention is, therefore, waived. See Reilly v. United States, 863

F.2d 149, 159 (1st Cir. 1988) (explaining that a failure seasonably

to object to a procedural order bars an appeal predicated thereon).

5The other motion to dismiss, filed January 15, 2003, need not

concern us. That motion asserted that the claim against the Estate

should be dismissed because the law does not provide for

supervisory liability. While that may be true of Title VII,

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second place, the defendants concede that the hearsay memorandum

was not filed until March 18, 2003 — two months after the deadline

mandated by the district court's scheduling order. That this

belated filing occurred before the district court ruled on the

motions to dismiss makes no dispositive difference.

The defendants' second argument is that the calendar

established under the scheduling order was too rigorous. We

already have dealt with the essence of this argument. See supra

Part II(A). To that, we add what the chronology makes apparent:

that the able trial judge bent over backwards to allow a reasonable

time for completion of pretrial matters. The record makes manifest

that the defendants' cavalier disregard of court-appointed

deadlines, not the district court's intransigence, led to their

downfall. Given the district court's largesse and its explicit

warnings about the consequences of noncompliance, the court most

assuredly did not abuse its discretion in hewing to its timetable.

In an effort to alter this conclusion, the defendants

point out that the March 18 motion to dismiss implicated the

court's subject-matter jurisdiction.5 They then note that a
judgment was entered in this case pursuant to 29 P.R. Laws Ann. §

146. This statute imposes liability on supervisors for acts of

sexual harassment. See Mejias Miranda v. BBII Acquis'n Corp., 120

F. Supp. 2d 157, 172 (D.P.R. 2000). Thus, any error in denying

that motion to dismiss was harmless.

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federal court's subject-matter jurisdiction may not be waived.

Bennett v. City of Holyoke, 362 F.3d 1, 7-8 (1st Cir. 2004). It

follows, they say, that federal courts are precluded from

sanctioning litigants by refusing to consider their motions to

dismiss for lack of subject-matter jurisdiction.

That proposition is true as far as it goes, but it does

not take the defendants very far. The March 18 motion was premised

on the plaintiff's supposed failure to file timely charges with the

EEOC. Over two decades ago, the Supreme Court held that "filing a

timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to suit in federal court, but a

requirement that, like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling." Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982). That the defendants

improperly classified this motion as raising a lack of subjectmatter jurisdiction does not change its real nature. Consequently,

the district court was free to consider the denial of the motion as

a sanction.

We summarize succinctly. On an appeal from an order

imposing sanctions for noncompliance with a case-management order,

we must defer to the trial court's informed assessment of the
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situation. See Rosario-Diaz, 140 F.3d at 315 ("[W]e acknowledge

the trial judge's special coign of vantage and give him a wide

berth to determine what sanction responds most aptly to a

particular infraction."); Legault v. Zambarano, 105 F.3d 24, 26

(1st Cir. 1997) (discussing "the importance of supporting a trial

court's decisions concerning sanctions"). Applying this

deferential standard of review, we discern no abuse of discretion

in the district court's decision to deny the motions to dismiss as

a sanction.

C. The Hearsay Memorandum.

The defendants expend considerable energy calumnizing the

district court's method of handling the potential hearsay evidence

issue in this case. They tell us that the court abused its

discretion when it (i) ordered a memorandum on the admissibility of

hearsay evidence too early in the proceedings, (ii) sanctioned the

defendants (by precluding the use of certain hearsay testimony) for

their failure seasonably to file the memorandum, and (iii) refused

to consider the memorandum when it was submitted by the defendants

two months late. These calumnies ring hollow.

If there is one abiding truth illustrated by the travel

of this case, see supra Part I, it is that the defendants would

have been better served expending their energies during discovery

and other pretrial proceedings rather than on appeal. The record

reflects that they arrived at the OSC unprepared to participate
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effectively in the proceedings. There is no indication that they

objected when the district court afforded them approximately one

month within which to file "a memorandum concerning the

admissibility of hearsay and other evidence in the occasion when a

party has died prior to having given a deposition and/or prior to

trial." Nor is any basis for an objection apparent. The January

17 deadline fixed by the court gave the defendants ample time

within which to research the hearsay issue. Yet January 17 came

and went without the filing of the requisite memorandum.

Courts are entitled — indeed, they should be encouraged

— to ask counsel for input on legal issues that seem likely to

arise in the course of trial. Here, the defendants squandered what

should have been a welcome opportunity to persuade the court that

hearsay evidence should be liberally admitted in view of Nieves's

demise. When a litigant fails to comply with a case-management

order, the court has substantial authority to impose a condign

sanction. See Tower Ventures, Inc. v. City of Westfield, 296 F.3d

43, 45-46 (1st Cir. 2002). We cannot say that the court below

abused its discretion when it precluded certain hearsay testimony

as a sanction for the defendants' protracted delay in submitting

the memorandum in question. See Fed. R. Civ. P. 16(f) (providing,

through reference to Rule 37(b)(2)(B), that a court may prohibit a

litigant "from introducing designated matters in evidence" as a

sanction for noncompliance with a scheduling order).
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III. CONCLUSION

To sum up, the record in the instant case is replete with

instances of the defendants' disregard of court orders. Even so,

the district court exhibited considerable patience in accommodating

the defendants' lapses. And when the court finally drew a line in

the sand, it gave the defendants explicit warning that further

procrastination would risk severe consequences. To accuse the

court of abusing its discretion because the defendants chose

struthiously to ignore this warning stands logic on its ear.

We need go no further. For the reasons alluded to above,

we uphold the entry of judgment for the plaintiff.

Affirmed.