
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1903                               JOSE M. APONTE, ET AL.,                                Plaintiffs, Appellees,                                          v.               MARTHA TABARES, D/B/A MANHATTAN HOLDING COMPANY, ET AL.,                                Defendants, Appellees.                                                                                      ____________             DELIA ESTHER RIVERA-PEREZ, D/B/A MANHATTAN HOLDING COMPANY,                      D/B/A TRADING CAPITAL INTERNATIONAL CORP.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Carlos M. Mangual Lopez on brief for appellant.            _______________________            Frank D. Inserni on brief for appellees.            ________________                                 ____________________                                     May 8, 1997                                 ____________________                      Per  Curiam.    Delia  E.  Rivera-Perez  ("Rivera")                      ___________            appeals from a judgment entered after a jury verdict in favor            of  plaintiffs on  their  fraud claims.    We have  carefully            considered her  arguments on appeal and  determined that they            are without merit.                      I.  Subject Matter Jurisdiction                          ___________________________                      Appellant challenges the  federal district  court's            subject  matter  jurisdiction on  the ground  that plaintiffs            failed  to satisfy the  jurisdictional amount  in controversy            requirement.   Limits on subject matter  jurisdiction are not            waivable and, therefore, may be raised at any time.  15 James            Wm.  Moore, et al., Moore's Federal Practice   102.13 (3d ed.                                ________________________            1997).     "For  the   purposes  of   establishing  diversity            jurisdiction,  the amount  in  controversy  is determined  by            looking to  the circumstances at  the time  the complaint  is            filed."  Coventry Sewage  Assocs. v.  Dworkin Realty  Co., 71                     ________________________     ___________________            F.3d  1, 4 (1st  Cir. 1995).   Therefore, "the jurisdictional            amount  test  is  not  dependent  upon  the  amount  actually            recovered  by plaintiff."  14A Charles  A. Wright,  Arthur R.            Miller & Edward  H. Cooper, Federal Practice and  Procedure                                          _______________________________            3702 at 31 (1985).                      In  a  case like  this  one where  a  defendant has            challenged  plaintiffs' allegations concerning  the amount in            controversy, "the plaintiff  must produce sufficient evidence            to meet the requirements  of the 'legal certainty' test  by a                                         -2-            preponderance of the  evidence supported by competent  proof.            'Competent proof' has  been defined as proof to  a reasonable            probability  that jurisdiction  exists."  15 Moore's  Federal                                                         ________________            Practice,  supra,   102.107[1].   Under  the legal  certainty            ________   _____            test, plaintiffs must establish "that it does not appear to a                                                          ___            legal certainty  that the  claim is below  the jurisdictional                                                _____            minimum." Id.,  102.106[1].                      ___                      We assume  for purposes  of this appeal  that these            plaintiffs'  claims  cannot  be  aggregated  for purposes  of            calculating  the requisite  jurisdictional  amount.   See  15                                                                  ___            Moore's Federal  Practice, supra,   102.108[3][b].   We  have            _________________________  _____            included claims  for damages  for pain  and suffering  in the            calculation.  Pain and suffering damages are recognized under            Puerto  Rico tort and contract law.  See Serrano v. Nicholson                                                 ___ _______    _________            Nursery,  Inc., 844 F. Supp.  73, 76 (D.  Puerto Rico, 1994).            ______________            We   conclude  that   each  plaintiff   met  his   burden  of            demonstrating  that it does  not appear to  a legal certainty            that his claim is below $50,000.                      II.  Judgment as  a Matter of Law  and Failure                           _________________________________________                 to        State a Claim                 ___       _____________                      Appellant argues  that the district  court erred in            denying  her motion  pursuant  to Fed.  R.  Civ. P.  50,  for            judgment  as a  matter  of law  where  "there is  no  legally            sufficient evidentiary  basis for  a reasonable jury  to find            for that  party on that issue."  In reviewing the denial of a            motion for judgment as a matter of law,  we review the record                                         -3-            to  determine  whether it  "provides an  adequate evidentiary            basis  for the district court's decision to submit the matter            to the jury."  Santiago Hodge v. Parke Davis &  Co., 909 F.2d                           ______________    __________________            628,  634 (1st  Cir. 1990).   Without the  trial transcripts,            which appellant has not provided, this court cannot make that            determination.    Therefore,  appellant is  not  entitled  to            relief on the ground that the district court erred in denying            her motion for  judgment as  a matter of  law.1  See  Valedon                                                          1  ___  _______            Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806            ________    ____________________________________________            F.2d 1128, 1135 (1st Cir. 1986) (this court will not review a            claim   of  error  if  appellant  has  failed  to  include  a            transcript  of the  pertinent  proceedings in  the record  on            appeal).                      Appellant argued  in her motion to  dismiss, as she            does  on appeal, that the  complaint failed to  state a claim            against her for fraud or breach of contract.  She argued that            she  was not  a  party  to  the  contracts  between  MHC  and            plaintiffs  and,  therefore, was  not  liable  thereon.   She            further  contended   that  "in  the  absence  of  contractual            obligation  a  party cannot  be  charged  with  fraud."   The            elements  of a  fraud claim  under Puerto Rico  law are  1) a            false   representation   by  defendant,   (2)the  plaintiff's                                            ____________________               1  Similarly, Rivera's claim that, as a matter of law, co-               1            plaintiff Carlos  Fernandez "did not  have a cause  of action            against  Delia Rivera  based  on his  testimony [at  trial],"            cannot be reviewed without the trial transcripts.                                         -4-            reasonable   and  foreseeable  reliance  thereon,  injury  to            plaintiff from  his reliance,  and (4) intent  to defraud  by            plaintiff.  See Wadsworth, Inc.  v. Schwarz-Nin, 951 F. Supp.                        ___ _______________     ___________            314, 323  (D. Puerto Rico 1996).   The complaint sufficiently            alleged each of the required elements.                      III.  Attachment                            __________                      We affirm  the district court's order  dated August            1, 1995 essentially for  the reasons stated therein.   We add            only the following  comments concerning appellant's arguments            on  appeal that the bond amount was insufficient and that the            hearing was inadequate because no evidence was introduced.                        Under Rule 56.3  of the Puerto Rico  Rules of Civil            Procedure, P.R.Laws Ann. Tit.  32, App. III, the amount  of a            bond to support an ex parte attachment must be "sufficient to            secure  all damages arising from the remedy."  P.R.R. Civ. P.            56.3. The  Supreme Court  of Puerto  Rico has cautioned  that            "the  amount  [of  an  attachment  bond]  should  not  be  so            excessive as  to thwart  the plaintiffs' purpose  of securing            the  effectiveness of  the judgment  to be  timely rendered."            Conjugal  Partnership v.  Rodriguez, 116  D.P.R. 463  (1985).            _____________________     _________            Moreover,  "the amount of the bond would always be subject to            change  if the  defendant  could  show  that the  damage  the            attachment causes  him exceeds the  amount of the  bond." Id.                                                                      ___            Appellant did  not object to the amount of the bond until the            hearing  requested  by plaintiffs  and  she did  not  seek to                                         -5-            introduce any evidence to demonstrate that  the amount of the            bond  was  inadequate to  cover  potential  damages from  the            attachment.   Under these circumstances,  the district  court            did not err in setting the amount of the bond at $20,000.                      Appellant argues that  the post-attachment  hearing            was inadequate because it was not a full evidentiary hearing.            From the minutes of  the hearing, it appears that  Rivera did            not request the opportunity to present evidence  or object to            plaintiffs' failure  to present evidence.   Rule 56.5  of the            Puerto  Rico Rules of Civil Procedure does not require a full            evidentiary hearing.  Cf. HMG  Property  Investors v.  Parzue                                  ___ ________________________     ______            Indus.  Rio Canas, 847 F.2d 908, 914 (1st Cir. 1988) (holding            _________________            that  Rule 56.2 "requires notice and a fair chance to marshal            supporting facts  and theories -- nothing  more").  Appellant            still  has not  explained  what evidence  ought to  have been            presented  and how it would  have changed the  outcome of the            attachment hearing.                        The district  court order affirming  the attachment            order is affirmed.   The district court judgment in  favor of                     ________            plaintiffs dated June  10, 1996,  is affirmed.   See Loc.  R.                                                 ________    ___            27.1.                                         -6-
