United States Court of Appeals

For the First Circuit

No. 05-1839

ANTONIO ADORNO, ET AL.,

Plaintiffs, Appellants,

v.

CROWLEY TOWING AND TRANSPORTATION CO. and SEAFARERS

INTERNATIONAL UNION OF NORTH AMERICA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Campbell, Senior Circuit Judge,

and Howard, Circuit Judge.

J.H. Zidell, with whom J.H. Zidell, P.A. was on brief, for

appellants.

Raquel M. Dulzaides, with whom Mayra M. González Reyes and

Jimenez Graffam & Lausell were on brief, for appellee Crowley

Towing and Transportation Company.

Ellen Silver, with whom Mary T. Sullivan, and Segal, Roitman

& Coleman were on brief, for appellee Seafarers International

Union of North America.

April 4, 2006
 Although the notice of appeal was apparently filed on behalf of 1

all plaintiffs who brought this action, four of the eight settled

their cases and dismissed their claims and are therefore not

parties to this appeal.

Plaintiffs also make passing suggestions that the court erred in 2

granting defendants' summary judgment motions but have failed to

develop any such argument sufficiently to put the correctness of

the summary judgment rulings in dispute (other than as premised on

the denials of the motions to amend and for additional discovery).

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 

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HOWARD, Circuit Judge. Plaintiffs are former employees

of Crowley Towing and Transportation Company ("Crowley") who

brought a "hybrid" Section 301/unfair representation action under

the Labor Management Relations Act, 29 U.S.C. § 185, against

defendants Crowley and Seafarers International Union of North

America ("Union"). Plaintiffs claimed that the layoff methodology 1

negotiated for the shutdown of Crowley's Puerto Rico operation

violated the seniority provisions of their collective bargaining

agreement (CBA). On appeal, plaintiffs challenge the district

court's denials of their motions to amend their complaint and for

additional discovery to respond to defendants' successful motions

for summary judgment.2

Crowley notified the Union in December 1996 of its

intention to close permanently its operations in Puerto Rico. The

Union and Crowley met to negotiate various aspects of the shutdown,

including which employees would be retained for residual work after

the shutdown and various benefits issues. Some employees,
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including a number of the plaintiffs, attended the negotiation

sessions. 

On March 1, 1997, Crowley shut down most of its

operations and laid off most of its employees. On March 6, 1997,

a letter agreement between Crowley and the Union was posted in the

union hall. The agreement listed all the employees laid off as of

March 1, and also those employees who would be temporarily retained

to complete Crowley's residual contractual obligations. The

immediately terminated employees received their last paychecks on

March 7, 1997. On April 17, 1997, the parties reached a second

agreement, known as "the stipulation," which addressed the

"effects" of the shutdown by resolving outstanding benefits issues.

The present case was initiated by six plaintiffs, who

filed a putative class action in the Southern District of Florida

on August 27, 1997, claiming that Crowley and the Union had

violated the CBA's seniority provisions in selecting the employees

who would be retained after the shutdown. The case was transferred

to the District of Puerto Rico and consolidated with a related case

brought in that court by two of the six Florida plaintiffs.

Procedural tangles, discovery disputes, and delays followed. For

our purposes, only the following are of consequence.

 The district court denied plaintiffs' motion to certify

a class action on December 29, 1998. On January 28, 1999, one day

before the court's deadline for dispositive motions, plaintiffs
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filed a motion to amend their complaint to add 96 additional

plaintiffs. The following day both Crowley and the Union filed

motions for summary judgment. Thereafter, Crowley and the Union

filed oppositions to the motion to amend, arguing that amendment

was futile because the new plaintiffs' claims were untimely and

filed in bad faith.

At a discovery conference in May 1999, the court ordered

the parties to brief their positions on the timeliness of the

proposed amended complaint and directed defendants to answer

outstanding interrogatories by June 4, 1999. The court also stated

it would "take under advisement whether the motion for summary

[judgment] filed by defendants should be stayed until discovery was

completed." The parties duly filed their briefs on the timeliness

issue. Both sides included evidentiary material in their filings,

much of which duplicated the summary judgment materials. 

On June 21, 2000, plaintiffs filed a motion to compel the

depositions of the two affiants who figured prominently in the

defendants' motions for summary judgment. See Fed. R. Civ. P.

56(f). On December 11, 2000, the district court denied the motion

to amend as to 94 of the 96 new plaintiffs, concluding that their

claims were time-barred. The district court did, however, permit

the addition of two other plaintiffs whose claims were not timebarred because they had filed grievances with the Union about the
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lay-off, thus tolling the statute of limitations. This brought the

total number of plaintiffs to eight.

The case languished for over three years and was then

transferred to a different district judge. On June 28, 2004, the

new judge denied the motion for additional discovery as untimely

and unsupported by the affidavit required by Fed. R. Civ. P. 56(f).

Plaintiffs then filed their response to the pending motions for

summary judgment. On September 30, 2004, the district court

granted partial summary judgment to the Union and Crowley,

dismissing four of the plaintiffs on the ground that their

seniority rights were not violated in the shutdown. The court

denied summary judgment with respect to the other four plaintiffs;

those remaining plaintiffs eventually settled their claims.

The 94 prospective plaintiffs ("the prospective

plaintiffs") whose claims the district court found to have been

time-barred appeal from the court's December 11, 2000 order denying

the motion to amend. The four plaintiffs ("the dismissed

plaintiffs") whose claims were dismissed appeal the court's

September 30, 2004 order partially granting summary judgment in

favor of the defendants. As to this issue, they do not attack the

merits of the summary judgment decision, but rather argue that the

court should have allowed them to conduct additional discovery

before issuing a summary judgment ruling.
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We start with the prospective plaintiffs' challenge to

the denial of their motion to amend. This issue turns on whether

the prospective plaintiffs had timely claims (putting aside the

tolling that occurred while the class action issue was pending).

This question, in turn, turns on when the cause of action accrued.

The district court found, considering the evidence, that the

accrual date was in early March of 1997. The court held that the

motion to amend would be futile for 94 of the 96 prospective

plaintiffs, since their claims were time-barred.

On appeal, the prospective plaintiffs argue that the

accrual date was later than that found by the district court.

Pointing out that motions to amend are to be "freely granted," the

prospective plaintiffs contend that their motion should have been

assessed under the liberal Fed. R. Civ. P. 12(b)(6) standard based

entirely on the "four corners" of the tendered complaint, and that

the district court erred in considering outside evidentiary

materials without notice that it was going to do so. Building on

this position, the prospective plaintiffs further contend that the

court was bound by their allegation that the layoffs did not take

place until April 1, 1997. Alternatively, the prospective

plaintiffs posit that they did not know of their injury until they

learned that defendants had actually violated the CBA's seniority

provisions, and the evidence suggests that did not occur until the

prospective plaintiffs eventually received a copy of the operative
 The prospective plaintiffs' motion to amend was actually filed 3

one day before the defendants' motions for summary judgment, which

were filed on the deadline for dispositive motions established by

the court. However, all the motions were entered on the electronic

docket the same day, and the district court considered them

together. At bottom, the motion to amend was tendered at the

"eleventh hour to fend off summary judgment," and a court "need not

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CBA in July 1997, or, at the earliest, the date of the stipulation

(April 17, 1997).

We review denials of motions to amend pleadings for abuse

of discretion. See Interstate Litho Corp. v. Brown, 255 F.3d 19,

25 (1st Cir. 2001); see also Charles Bank Equity Fund II v. Blinds

to Go, Inc., 370 F.3d 151, 158 (1st Cir. 2004)("An error of law is,

of course, always an abuse of discretion."). Consent to file

amended pleadings "shall be freely given when justice so requires,"

Fed. R. Civ. P. 15(a), unless the amendment would be futile or

reward undue delay, see Steir v. Girl Scouts of the USA, 383 F.3d

7, 12 (1st Cir. 2004); Resolution Trust Corp. v. Gold, 30 F.3d

251, 253 (1st Cir. 1994). In assessing futility, the district

court must apply the standard which applies to motions to dismiss

under Fed. R. Civ. P. 12(b)(6). See Glassman v. Computervision

Corp., 90 F.3d 617, 623 (1st Cir. 1996). The bar for a plaintiff

tendering an amended complaint is higher after a motion for summary

judgment has been filed, as the plaintiff must demonstrate "that

the proposed amendments were supported by substantial and

convincing evidence." Gold, 30 F.3d at 253 (citation and internal

quotation marks omitted); see also Girl Scouts, 383 F.3d at 12.3
tiptoe through empty formalities to reach foreordained results."

Gold, 30 F.3d at 254 (citation and internal quotation marks

omitted). Also, and in any event, the district court did not err

in assessing the motion under the summary judgment standard. The

prospective plaintiffs were on notice of the possible conversion

when defendants presented evidentiary materials with their briefs,

and the prospective plaintiffs effectively invited the conversion

when they responded in kind, and without objection to defendants'

submissions. See, e.g., Gulf Coast Bank & Trust Co. v. Reder, 355

F.3d 35, 38-39 (1st Cir. 2004); Boateng v. Interamerican

University, Inc., 210 F.3d 56, 60-61 (1st Cir. 2000); Collier v.

City of Chicopee, 158 F.3d 601, 602-604 (1st Cir. 1998). 

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We begin on common ground. Both sides agree that a sixmonth statute of limitations applies to "hybrid" actions, and that

the clock started ticking when the prospective plaintiffs knew, or

reasonably should have known, of the alleged wrongful acts. See

Arriaga-Zayas v. Int'l Ladies' Garment Workers' Union, 835 F.2d

11, 13 (1st Cir. 1987). The parties also agree, and we accept

arguendo, that the running of the statute was tolled during the

pendency of the motion for class certification. See generally

Basch v. Ground Round, Inc., 139 F.3d 6, 10 (1st Cir. 1998).

Because the prospective plaintiffs did not move to amend the

complaint until January 28, 1999, 30 days after the denial of class

certification, the action is only timely if the case accrued fewer

than five months before the filing of the original class action

complaint on August 27, 1997. The prospective plaintiffs assert

that the accrual date was no earlier than April 1, 1997, rendering

the action timely.
 Indeed, the prospective plaintiffs' actual allegation, as quoted 4

in their brief, states that the discharges took place from "on or

about February 28th, 1997 to April 1st, 1997." This allegation

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The district court correctly concluded that the action

accrued in early March of 1997. The prospective plaintiffs knew,

or had reason to know, of the claimed wrong no later than March 7,

1997, when they received their final paychecks and had the

opportunity to review the letter agreement detailing which workers

were released and which were retained. The prospective plaintiffs

obviously knew that they had been terminated, each knew his or her

individual seniority status, and would have realized that lesssenior employees were retained upon reviewing the letter agreement.

Therefore, the putative amended complaint would have been untimely.

The prospective plaintiffs' contrary arguments are

unpersuasive. With respect to the operative seniority provision in

the CBA that the prospective plaintiffs allege they did not

actually receive until four months after the lay-offs, the

prospective plaintiffs have not contested defendants' assertions

that the provision had been the same for many years and that the

workers were aware of it. The April 17 stipulation is similarly

unhelpful to the prospective plaintiffs, as it deals with the

"effects" of the closing and specifically acknowledges that most of

the workforce was laid off on March 1, 1997. At bottom, the April

1, 1997 layoff date alleged in the complaint is a bare allegation

with no evidentiary support. See Nat'l Amusements, Inc. v. Town 4
itself implies that some, if not most, of the new claims would be

untimely. 

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of Dedham, 43 F.3d 731, 735 (1st Cir. 1995)("[W]e need not credit

purely conclusory allegations, indulge rank speculation, or draw

improbable inferences."). 

We turn now to the dismissed plaintiffs' argument that

the district court erred in denying their motion for additional

discovery. The dismissed plaintiffs complain that they were misled

by the court's statement that it would take "under advisement" the

question of whether defendants' motions for summary judgment should

be stayed until discovery was completed. The dismissed plaintiffs

also assert that no formal affidavit was required because they

substantially complied with Fed. R. Civ. P. 56(f), and that Rule

56(f) only fully comes into play when an adequate time for

discovery has passed. Central to the dismissed plaintiffs'

argument on this point is their fundamental assertion that deposing

the defendants' affiants was essential to determine the zealousness

of the Union's bargaining tactics.

We review a district court's denial of a Fed. R. Civ. P.

56(f) motion for abuse of discretion. See Resolution Trust Corp.

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

While we do not require slavish adherence to Rule 56(f)'s formal

requirements, when additional discovery is sought, such a motion

must (1) be presented in a timely manner; (2) show good cause for
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the failure to discover the necessary facts sooner; (3) set forth

a plausible basis for believing that the necessary facts probably

exist and can be learned in a reasonable time; and (4) establish

that the sought facts, if found, will "influence the outcome of the

pending motion for summary judgment." Id.; see also Velez v.

Awning Windows, Inc., 375 F.3d 35, 39-40 (1st Cir. 2004)

(functionally equivalent statement may substitute for the affidavit

required by Rule 56(f)).

There is a fatal disconnect between the dismissed

plaintiffs' arguments and the district court's summary judgment

decision. The district court granted summary judgment in favor of

defendants on the ground that the dismissed plaintiffs' seniority

rights were not violated in the shutdown. The dismissed

plaintiffs' contentions thus fail to address, let alone cast doubt

upon, the court's rationale on the dispositive issue, see In re

Miles, 436 F.3d 291, 294 (1st Cir. 2006), and disregard Rule

56(f)'s requirement that the requested discovery be capable of

influencing the outcome of the motion for summary judgment, see

Velez, 375 F.3d at 40; Vargas-Ruiz v. Golden Arch Dev., Inc., 368

F.3d 1, 4 (1st Cir. 2004)(the sought "facts, if obtained, would

help defeat pending motion"). 

 Moreover, the dismissed plaintiffs failed to file their

motion for additional discovery until fifteen months after the

motions for summary judgment were filed. This was far too long a
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delay. See Guzman-Ruiz v. Hernandez-Colon, 406 F.3d 31, 35 (1st

Cir. 2005) (three-month delay excessive); Vargas-Ruiz, 368 F.3d at

4 (Rule 56(f) motion should be filed "promptly upon service of

defendant's dispositive motion"). That the district court took

"under advisement" the request to stay the summary judgment motions

until completion of the then-outstanding discovery --

interrogatories that defendants were directed to answer by June 4,

1999 -- cannot reasonably be interpreted to give the dismissed

plaintiffs carte blanche to ignore pending dispositive motions and

discovery deadlines and then propound new discovery requests over

a year later.

It is regrettable that this case languished for years in

the district court. But in the end, the judge to whom the case was

later assigned acted within her discretion in denying the motions

to amend the complaint and for additional discovery. Accordingly,

we affirm the judgments entered on behalf of the defendants in this

matter.

So ordered.