
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-2227                              NYDIA G. RODRIGUEZ, a/k/a                              NYDIA G. RODRIGUEZ BRUNO,                                 Plaintiff, Appellee,                                          v.                                DORAL MORTGAGE 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                        Selya, Cyr and Stahl, Circuit Judges.                                              ______________                              _________________________               Radames A. Torruella, with whom Carmencita Velazquez-Marquez               ____________________            ____________________________          and McConnell Valdes were on brief, for appellant.              ________________               Erick  Morales-Perez,  with  whom  Humberto  Ramirez  was on               ____________________               _________________          brief, for appellee.                              _________________________                                    June 23, 1995                              _________________________                    SELYA,  Circuit  Judge.    This appeal  invites  us  to                    SELYA,  Circuit  Judge.                            ______________          explore,  and in  turn to  demarcate, the  outer boundaries  of a          promontory of federal judicial power.  At the  base of the appeal          is a sexual harassment  suit brought by Nydia G.  Rodriguez Bruno          (Rodriguez)  against   her   former  employer,   Doral   Mortgage          Corporation  (Doral).1   Premising jurisdiction on  the assertion          of  a  federal civil  rights violation,  see  28 U.S.C.     1331,                                                   ___          1343(a)(4),  the plaintiff pressed a claim under Title VII of the          Civil Rights Act of 1964, 42 U.S.C.    2000e to  2000e-17 (1988),          and hitched  to it  a pendent claim  under a Puerto  Rico statute          known colloquially as  Law 100.2   After first  holding that  the          amendments embodied in the Civil Rights Act of 1991, Pub. L.  No.          102-166, 105 Stat.  1071 (1991) (codified as amended at scattered          sections of  42 U.S.C.), did not  apply to this case  in light of          Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994), the district          ________    _______________          court rejected each of the plaintiff's pleaded claims.  The court          nonetheless entered judgment in  her favor based on Law  17, P.R.          Laws  Ann. tit.  29,     155-155(l) (Supp.  1992)3    and  did so                                        ____________________               1Technically,  Rodriguez  and  her parents  sued  Doral  and          several associated  individuals  and entities,  including  Miguel          Berrios, her immediate supervisor.  Because  none of these claims          is relevant to  this appeal, we treat the case  as if it involved          only  a  suit  by  Rodriguez  (plaintiff-appellee) against  Doral          (defendant-appellant).               2In pertinent  part,  Law 100  forbids, on  penalty of  both          civil and criminal sanctions, adverse employment actions based on          any one of several protected characteristics, including sex.  See                                                                        ___          P.R. Laws Ann. tit. 29,   146 (1985).               3In  substance,  Law  17   penalizes  sexual  harassment  by          employers or their agents.  Under its terms as interpreted by the          district court,  employers are  held strictly liable  for damages                                          2          notwithstanding that the plaintiff had neither pleaded a cause of          action thereunder nor invoked the statute at trial.                    Three  questions are now before us.  (1) May a district          court  enter judgment for a  plaintiff on a  cause of action that          was neither pleaded in the complaint nor raised during the course          of trial?  (2) May  a district court prior to the close  of trial          unilaterally  introduce  an  unpled  cause  of  action  into  the          proceedings?  (3) In any event,  may a district court, on remand,          assume  supplemental  jurisdiction  over a  nonfederal  cause  of          action  that could  have been introduced  during trial,  when (a)          neither the plaintiff  nor the district court  in fact introduced          the cause  of action  before the  end of the  trial, and  (b) the          foundational  federal claim,  though  originally  colorable,  has          since been repulsed on the  merits?  Because we answer the  first          question  in the  negative, we  must vacate the  judgment below.4          We turn then  to choice of remedy, and, after  answering both the          second  and third  questions in  the  affirmative, we  remand for          further proceedings.                                        ____________________          arising  out of  harassment  in  the  workplace  (at  least  when          perpetrated  by  a  supervisor).     The  statutory  language  is          inexplicit, however, and the Puerto Rico Supreme Court has handed          down only one  opinion construing Law 17.   See Delgado  Zayas v.                                                      ___ ______________          Hospital Interamericano  de Medicina, 94 J.T.S.  149 (P.R. 1994).          ____________________________________          That  opinion does not speak to the question of strict liability,          and we regard Law 17's precise meaning as problematic.               4In   actuality,  the  judgment  below  represents  a  split          decision.  While it  encompasses the district court's rulings  in          Doral's  favor  on all  the  pleaded  claims, Rodriguez  has  not          challenged these rulings and they are  unaffected by this appeal.          All references herein to the judgment are, therefore,  limited to          the  second portion of the judgment, which comprises the award of          damages to the plaintiff under Law 17.                                          3          I.  FACTUAL AND PROCEDURAL HISTORY          I.  FACTUAL AND PROCEDURAL HISTORY                    We begin  with the  facts as  supportably found  by the          district court after a bench trial.  See Rodriguez Bruno v. Doral                                               ___ _______________    _____          Mortgage  Corp., No. 92-2497, slip  op. at 1-9  (D.P.R. Sept. 19,          _______________          1994) (D.  Ct. Op.).   We  then proceed  to chart  the procedural          history of the litigation.                    Doral  hired  Rodriguez  in March  of  1990  as a  loan          processor and transferred  her the following January to  its Hato          Rey  branch.   There,  she worked  as  a receptionist  under  the          hegemony  of Miguel  Berrios.   Over a  period of  several weeks,          multiple  incidents  of  sexual  harassment  occurred,  including          nonconsensual physical contacts initiated by Berrios.   Rodriguez          reported  the harassment to two of Doral's top executives.  These          officials assured her that Berrios would be  transferred, and, as          it turned out, he resigned soon thereafter.                    Despite Berrios' departure, Rodriguez filed a complaint          with the Puerto  Rico Department  of Labor in  which she  charged          sexual harassment  in consequence  of an unlawfully  hostile work          environment.  This grievance ultimately spawned the federal suit.          The  case  was tried  to the  bench.   The  judge found  the work          environment  to be "hostile" within the meaning of Title VII, but          also found that  Doral had neither actual nor constructive notice          of the  problem  prior to  Rodriguez'  internal complaints.    He          concluded, therefore, that Doral  could not be held liable  under          Title  VII.  The judge also ruled  that Berrios could not be held          liable because Title VII, as it stood before the 1991 amendments,                                          4          did not impose liability on individual harassers.  See D. Ct. Op.                                                             ___          at 14.  So ended the plaintiff's federal claims.                    The court,  however, did  not consign the  plaintiff to          the ignominy of unmitigated  defeat.  Without passing in  so many          words on the Law 100 claim, the court departed from the pleadings          on its own  initiative and  decided the suit  in the  plaintiff's          favor  by  recourse  to  Law   17.    Describing  Law  17   as  a          "complementary   statute   regarding   sexual  harassment,"   and          interpreting it  as "provid[ing]  for strict liability  where the          alleged  harasser is  a supervisor,"  id. at  15, the  court held                                                ___          Doral liable to Rodriguez for $100,000 in damages, see id. at 19,                                                             ___ ___          and entered judgment accordingly.  Doral now appeals.          II.  THE UNPLEADED CLAIM          II.  THE UNPLEADED CLAIM                    We begin our trek through the thicket of controversy by          attempting  to  ascertain  whether  the lower  court's  entry  of          judgment  based  on Law  17 can  be  justified from  a procedural          standpoint.    Because  the  necessary  inquiry  focuses  on  the          inclusion and  exclusion of claims in a civil action in a federal          district court, the Federal Rules of Civil Procedure govern.  See                                                                        ___          Fed. R.  Civ. P. 1; see  also 28 U.S.C.    2072(b); see generally                              ___  ____                       ___ _________          Charles A.  Wright, Law  of Federal Courts    62 (5th  ed. 1994).                              ______________________          The  lower  court's  action  in  respect  to  the  Law  17  claim          implicates no fewer than three of these rules, namely, Rule 8(a),          Rule 15(b), and Rule  54(c).  We conduct our  examination mindful          of  two precepts:   (1) that  the Civil  Rules cannot  conjure up          jurisdiction  where none otherwise exists, see Fed. R. Civ. P. 82                                                     ___                                          5          (admonishing that  the Civil  Rules  "shall not  be construed  to          extend  .  . .  the jurisdiction  of  the United  States district          courts"); Wendy C. Perdue, Finley v. United States:   Unstringing                                     ______    _____________    ___________          Pendent Jurisdiction,  76  Va.  L. Rev.  539,  563  n.146  (1990)          ____________________          (addressing this limitation), and (2)  that apart from the  Civil          Rules,  "the district courts retain the inherent power to do what          is  necessary  and  proper  to  conduct judicial  business  in  a          satisfactory  manner," Aoude v.  Mobil Oil Corp.,  892 F.2d 1115,                                 _____     _______________          1119 (1st Cir. 1989).                                    A.  Rule 8(a).                                    A.  Rule 8(a).                                        _________                    Fed.  R.  Civ. P.  8(a)(2)  requires  that a  complaint          contain,  inter alia, "a short  and plain statement  of the claim                    _____ ____          showing that  the pleader  is entitled to  relief . .  . ."   The          mandate  of  Rule  8(a)(2)  comprises  a  threshold  requirement.          Despite  the  admonition  that   "[a]ll  pleadings  shall  be  so          construed  as to do substantial  justice," Fed. R.  Civ. P. 8(f),          failure to comply with Rule 8(a)(2) may render an unpleaded claim          noncognizable when the plaintiff (or  the court, for that matter)          subsequently teases it out of adduced  facts.  It would not serve          the  interests of  justice,  for instance,  to  redeem a  totally          unpleaded,  unlitigated  claim  in  circumstances  that  threaten          significant prejudice to a defendant.                    The  bottom line is  simply this:   while courts should          construe pleadings generously, paying more attention to substance          than  to  form,  they  must  always   exhibit  awareness  of  the          defendant's  inalienable right to  know in advance  the nature of                                          6          the  cause  of action  being asserted  against  him.   See Beacon                                                                 ___ ______          Theatres, Inc. v. Westover,  359 U.S. 500, 506 (1959);  Conley v.          ______________    ________                              ______          Gibson, 355 U.S. 41, 47  (1957); Campana v. Eller, 755 F.2d  212,          ______                           _______    _____          215 (1st Cir. 1985); Shelter Mut. Ins. Co. v. Public Water Supply                               _____________________    ___________________          Dist. No.  7, 747 F.2d 1195, 1197 (8th Cir. 1984).  A fundamental          ____________          purpose of pleadings under  the Federal Rules of Civil  Procedure          is  to  afford  the opposing  party  fair  notice  of the  claims          asserted  against him and the grounds on which those claims rest.          See Torres Ramirez  v. Bermudez  Garcia, 898 F.2d  224, 227  (1st          ___ ______________     ________________          Cir.  1990).  Honoring this  purpose ensures that  cases will "be          decided  on  the merits  after  an  adequate development  of  the          facts."  Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).                   _____    _____                    In the  case at  hand, the  plaintiff wholly failed  to          plead  a Law 17  claim.  Her  complaint did not  delineate such a          claim  when filed; she did  not add one  by formal amendment; she          did not mention the statute in  her pretrial filings; and she did          not  explicitly refer to  it at any  point during the  trial.  In          short,  this is  not a  case in  which  a properly  pleaded legal          theory has  been obscured by the parties'  concentration on other          theories, cf. Campana,  755 F.2d at  215, but, rather, a  case in                    ___ _______          which a particular  legal theory was never so much  as a gleam in          the pleader's eye.                    It  is true, as  the district court  observed, that the          pretrial order referred at  one point to "strict liability,"  the          very property with which the  district court imbued Law 17.   See                                                                        ___          D. Ct. Op. at  15.  Whatever the potential  legal significance of                                          7          this  fleeting mention,  it  is not  sufficiently informative  to          satisfy  the  "short and  plain  statement"  requirement of  Rule          8(a)(2).  See, e.g., Campana, 755 F.2d at 215.  By like token, it                    ___  ____  _______          surely  did not give Doral  fair notice that  the plaintiff would          assert a  claim premised on Law  17 or that the  judge would pull          one out  from beneath his  robe, like a rabbit  from a magician's          hat.                    We  will not loiter.  Though we fully appreciate that a          complaint may be constructively amended  as a case proceeds, see,                                                                       ___          e.g., Toth v.  USX Corp., 883 F.2d  1297, 1298 (7th  Cir.), cert.          ____  ____     _________                                    _____          denied,  493 U.S.  994 (1989),  this principle  cannot mean  that          ______          plaintiffs may  leave defendants to  forage in forests  of facts,          searching at their peril  for every legal theory that a court may          some day find lurking in  the penumbra of the record.   Under the          Civil  Rules, notice of a claim is a defendant's entitlement, not          a  defendant's  burden.     The  truth-seeking  function  of  our          adversarial system of justice is disserved when the boundaries of          a  suit  remain ill-defined  and  litigants  are exposed  to  the          vicissitudes of trial by ambush.                    At a bare minimum, even in this age of notice pleading,          a defendant must be  afforded both adequate notice of  any claims          asserted  against him  and a  meaningful opportunity  to  mount a          defense.  The district court's revisionist treatment  of the case          deprived Doral of these  perquisites.  Thus, unless the  district          court's  purported  adjudication  of  the  Law 17  claim  can  be          salvaged on some other basis, it must be set aside.                                          8                                   B.  Rule 15(b).                                   B.  Rule 15(b).                                       __________                    To this end, we  next train the lens of inquiry on Fed.          R.  Civ.  P.  15(b).   That  rule  permits  the consideration  of          unpleaded  claims   "by  express  or  implied   consent"  of  the          parties.5    Because  the  record here  discloses  no  whisper of          express consent   even  the plaintiff concedes its absence    our          inquiry narrows to the possibility of implied consent.                    For  purposes of  Rule  15(b), implied  consent to  the          litigation  of an  unpleaded  claim may  arise  from one  of  two          generic  sets of circumstances.  First, the claim may actually be          introduced  outside   the  complaint      say,  by  means   of  a          sufficiently  pointed  interrogatory  answer  or  in  a  pretrial          memorandum   and  then treated  by the opposing  party as  having          been  pleaded, either  through  his effective  engagement of  the          claim or  through his  silent acquiescence.    See, e.g.,  Action                                                         ___  ____   ______          Mfg., Inc. v.  Fairhaven Textile  Corp., 790 F.2d  164, 167  (1st          __________     ________________________          Cir.)  (as  amended per  curiam)  ("As  a  general principle  the          presentation of claims beyond  the complaint without objection is                                        ____________________               5The rule provides in pertinent part:                    When issues not  raised by the pleadings  are                    tried by  express or  implied consent of  the                    parties,   they  shall  be   treated  in  all                    respects as  if they  had been raised  in the                    pleadings.   Such amendment of  the pleadings                    as may be necessary  to cause them to conform                    to the evidence and to raise these issues may                    be made upon motion of any party at any time,                    even after  judgment; but failure so to amend                    does not  affect the  result of the  trial of                    these issues. . . .          Fed. R. Civ. P. 15(b).                                          9          considered  an  informal  amendment of  the  complaint."),  cert.                                                                      _____          denied, 479 U.S. 854  (1986); see also Lynch v. Dukakis, 719 F.2d          ______                        ___ ____ _____    _______          504,  508 (1st  Cir.  1983).   Second,  and more  conventionally,          "[c]onsent to the trial of an issue may be implied if, during the          trial, a party acquiesces in  the introduction of evidence  which          is relevant only to that issue."   DCPB, Inc. v. City of Lebanon,                                             __________    _______________          957  F.2d 913, 917 (1st Cir. 1992);  accord Law v. Ernst & Young,                                               ______ ___    _____________          956 F.2d  364, 375  (1st Cir.  1992); Campana,  755 F.2d  at 215;                                                _______          Lynch, 719  F.2d at 508.  In  other words, "[t]he introduction of          _____          evidence directly relevant to a pleaded issue cannot be the basis          for  a founded claim that the opposing party should have realized          that a new  issue was infiltrating the case."   DCPB, 957 F.2d at                                                          ____          917; accord Galindo v.  Stoody Co., 793 F.2d 1502, 1513 (9th Cir.               ______ _______     __________          1986)  ("It is  not enough  that an  issue may  be `inferentially          suggested by  incidental evidence in the record'; the record must          indicate that the parties understood that  the evidence was aimed          at an unpleaded issue.") (quoting Cole v. Layrite Prods. Co., 439                                            ____    __________________          F.2d 958, 961 (9th Cir. 1971)).                    Here,  no such  constructive  amendment occurred.   The          first  avenue to  implied consent is  a dead  end:   the fleeting          reference to "strict liability"  contained in the pretrial order,          see supra pp. 7-8, cannot by any stretch of even the most fertile          ___ _____          imagination support such a finding.  See Grand Light & Supply Co.                                               ___ ________________________          v.  Honeywell, Inc., 771 F.2d 672, 680 (2d Cir. 1985) (cautioning              _______________          that "[t]he  purpose of Rule  15(b) is  . . .  not to extend  the          pleadings  to introduce  issues  inferentially suggested").   And                                          10          apart from that one passing allusion, there is nothing to suggest          that a Law 17 claim was insinuated at trial, let alone engaged or          embraced by Doral.   The  second avenue that  sometimes leads  to          implied  consent  is equally  unpassable  in this  setting:   the          plaintiff did not introduce any  evidence that was relevant  only                                                                       ____          to a claim under Law  17.  Nor is this surprising; when,  as now,          the pleaded  and unpleaded claims are of much the same genre, the          likelihood of differential discernment on the defendant's part is          relatively low.                    In  fine, the  absence  of express  or implied  consent          renders  it impossible  to fit  the district  court's freelancing          within the confines of Rule 15(b).  Though we appreciate that the          root purpose of the rule is to combat "the tyranny of formalism,"          Rosden v. Leuthold, 274 F.2d 747, 750 (D.C. Cir. 1960), it cannot          ______    ________          be so liberally construed as to empty Rule 8(a) of all meaning.6                                   C.  Rule 54(c).                                   C.  Rule 54(c).                                       __________                    The  plaintiff's  last  justificatory  basis   for  the          district court's  action is  Fed. R.  Civ. P. 54(c).   The  rule,          which we have explicated on earlier occasions, see, e.g., Dopp v.                                                         ___  ____  ____          HTP Corp., 947 F.2d 506, 517-18 (1st Cir. 1991); United States v.          _________                                        _____________                                        ____________________               6We  note that,  even if  we could  detect some  indicium of          consent,  access to  the  unguent of  Rule  15(b) might  well  be          blocked on another ground.   One limit  on the operation of  Rule          15(b) is  that the opposing party  not be prejudiced.   See DCPB,                                                                  ___ ____          957  F.2d at 917 ("It is axiomatic that amendments which unfairly          prejudice a litigant should  not be granted.").  Here,  Doral had          no  advance warning  of  the  Law  17  claim  and  no  meaningful          opportunity  to defend  against  it.   Hence,  the likelihood  of          unfair  prejudice looms  large.   See  id.;  see also  Cioffe  v.                                            ___  ___   ___ ____  ______          Morris, 676 F.2d 539, 542 (11th Cir. 1982).          ______                                          11          Marin, 651 F.2d  24, 31  (1st Cir. 1981),  provides, in  relevant          _____          part,  that "every final judgment shall grant the relief to which          the party in whose favor it  is rendered is entitled, even if the          party has  not demanded  such relief  in the party's  pleadings."          According to the  plaintiff, the  judgment is simply  a means  of          granting her the relief  which she deserved, even though  she had          not,inthelanguageoftherule,"demandedsuchreliefin [her]pleadings."                    This thesis is hollow at its core.  "Rule 54(c) creates          no  right  to relief  premised on  issues  not presented  to, and          litigated before, the trier."  Dopp, 947 F.2d at 518; see also In                                         ____                   ___ ____ __          re Rivinius, Inc., 977  F.2d 1171, 1177 (7th Cir.  1992) (holding          _________________          that "Rule 54(c) does not allow [a party] to obtain relief  based          upon  a .  . . theory  that was  not properly  raised at trial");          Evans Prods. Co. v. West  Am. Ins. Co., 736 F.2d 920,  923-24 (3d          ________________    __________________          Cir. 1984) (explaining that the rule permits relief predicated on          a particular theory "only  if that theory was  squarely presented          and  litigated by  the  parties at  some  stage or  other of  the          proceedings"); Cioffe  v. Morris,  676 F.2d  539, 541  (11th Cir.                         ______     ______          1982)  (similar).   Thus,  Rule 54(c)'s  concern for  appropriate          relief does  not include  relief which  a plaintiff  has foregone          because of  failures in  the pleadings  or in the  proof.   See 6                                                                      ___          James W. Moore et  al., Moore's Federal Practice   54.62  (2d ed.                                  ________________________          1985).  Since Rodriguez  offers us no principled way  around this          settled  interpretation  of  Rule  54(c),  we  must  decline  her          invitation to invoke the rule to her advantage.                                 D.  Recapitulation.                                 D.  Recapitulation.                                     ______________                                          12                    We  summarize succinctly.    In the  absence of  mutual          consent,  a district court may not enter judgment for a plaintiff          on  a cause of  action that was neither  pleaded in the complaint          nor  raised during  the  course of  trial.   Here,  the  district          court's resort to Law  17 contravenes this tenet.   Moreover, the          court's  maneuver  cannot be  justified  under  the Civil  Rules.          Specifically, the plaintiff did  not plead a Law 17  claim within          the purview of Rule 8(a); the nonexistence of consent (express or          implied)  negates   any  suggestion   that  the   pleadings  were          constructively amended under Rule 15(b) to include such a  claim;          and Rule 54(c)  does not overcome these  deficiencies because its          safety net cannot be stretched so widely as to grant a  plaintiff          relief  on  an unpleaded  theory of  which  the defendant  had no          notice.                    For these reasons, we  hold that no claim under  Law 17          was  ever  properly  before  the  district court,  and  that  the          judgment cannot stand.  A federal district court may  not, of its          own volition, after the parties have rested, recast the complaint          and,  without notice, predicate its decision on a theory that was          neither pleaded nor tried.  See Greene v. Town of Blooming Grove,                                      ___ ______    ______________________          935   F.2d  507,   510-11  (2d   Cir.)  (reversing   exercise  of          jurisdiction  over pendent  claim  that was  neither pleaded  nor          discretely raised during the  litigation), cert. denied, 502 U.S.                                                     _____ ______          1005  (1991); Ruiz  v. Estelle,  679 F.2d  1115, 1157  (5th Cir.)                        ____     _______          (rejecting concept  that a court may,  after trial, spontaneously          consider unpleaded state-law claims through the simple  expedient                                          13          of reshaping  the plaintiffs'  suit), modified on  other grounds,                                                ________ __  _____ _______          688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983);                                        _____ ______          Cioffe, 676 F.2d at 541-43 (to like effect).          ______          III.  THE NEXT STEP          III.  THE NEXT STEP                    Setting  aside the judgment  takes us only  part of the          way.   We  must  now  consider the  next  step.    The  defendant          beseeches  us  to direct  the entry  of a  take-nothing judgment.          Because the plaintiff  lost on the merits of each  of her pleaded          claims,  we  recognize that  it is  within  our power  to oblige.          Before  charting our  course, however, we  pause to  mull whether          remand  is an  available alternative,  and, if  so, whether  that          alternative is preferable.                    Undoubtedly,  a remand under the conditions that obtain          here presents potential problems.   For one thing, the  propriety          of  the  district  court's  unilateral  effort  to  insinuate  an          unpleaded claim into  the case is open to question.   For another          thing, the foundational federal claims are now out of the picture            the plaintiff never cross-appealed from the adverse judgment on          those  claims,  see  supra note  4     and  the district  court's                          ___  _____          continued jurisdiction over  a supplemental claim  arising solely          under Puerto Rico law may seem  suspect.  Third, the Law 17 claim          itself,  if free-standing,  would now  be time-barred.   Finally,          even  if   none  of   these  factors  absolutely   precludes  the          discretionary  exercise of  remandatory jurisdiction,  remand may          not be the best available alternative.  In the pages that follow,          we address these concerns and then settle upon our next step.                                          14                                A.  The Court's Power.                                A.  The Court's Power.                                    _________________                    Since the question of whether  a district court has the          power  to introduce an unpleaded claim on its own initiative even          up  to (or  beyond) the close  of the  trial and  the question of          whether a district court has the  power to introduce such a claim          on remand are closely related, we consider them in the ensemble.                    1.    In  General.    The  proper  functioning  of  our                    1.    In  General.                          ___________          adversarial  system of justice  depends not only  on the parties'          vigorous  advocacy of  their positions  but also  on the  judge's          adroit  supervision  of  the  litigation.    The  sphere  of case          management extends to the definition of legal issues.  To mention          one of  many possible  illustrations, a district  court possesses          the authority to recommend  to a plaintiff how she  might reshape          the  complaint to escape  dismissal.   See, e.g.,  Friedlander v.                                                 ___  ____   ___________          Nims,  755 F.2d 810, 813 (11th Cir. 1985).  Similarly, a district          ____          court, exercising  its powers under Fed.  R. Civ. P. 15(b),  in a          proper case, "may amend the pleadings merely by entering findings          on  the  unpleaded  issues,"  Galindo,   793  F.2d  at  1513  n.8                                        _______          (collecting  cases),  even though  neither  party  has essayed  a          formal amendment.                    We think it follows that a district court has the power          to introduce a claim (or, rather, to  prompt a party to introduce          a claim) at any time during the course of litigation.  This power          does not  vanish at  the tail  end of a  trial, even  though both          sides  have  rested.    See,  e.g.,  Campana,  755  F.2d  at  215                                  ___   ____   _______          (recognizing  court's authority  to permit  amendment as  late as                                          15          during jury  deliberation).  This conclusion does  not clash with          either  the  letter  or the  spirit  of  Fed. R.  Civ.  P. 15(a).          Although that  rule plainly  favors early amendments,  see, e.g.,                                                                 ___  ____          id. (authorizing one  revision "as  a matter of  course" if  made          ___          within  certain time constraints), it sets no outer time limit on          amendments; the drafters chose instead to leave the matter within          the discretion of the  nisi prius court.  See  Benitez-Allende v.                                                    ___  _______________          Alcan Aluminio do Brasil, S.A., 857  F.2d 26, 36 (1st Cir. 1988),          ______________________________          cert.  denied, 489  U.S. 1018 (1989);  see also  Fed. R.  Civ. P.          _____  ______                          ___ ____          15(a)  (providing that leave to amend "shall be freely given when          justice so requires").                    As this discussion indicates (and as Fed. R. Civ. P. 15          and  28 U.S.C.   1367 confirm, see  infra), the court below could                                         ___  _____          properly  have  called  attention  to  the  prospect  of  a  new,          unpleaded (but related) claim  at any time as long  as it adopted          appropriate measures to safeguard against unfair prejudice.                    2.  On Remand.   Of course, the posture of the  case is                    2.  On Remand.                        _________          now  somewhat  different.   Doral  argues  that, on  remand,  the          district court, even  if it originally  enjoyed the authority  to          introduce  or entertain  a  new, unpleaded  (but related)  claim,          would not still possess that  power.  We do  not agree.  Since  a          new,  unpleaded  (but related)  claim  could  have been  asserted          during the  trial, we  see no reason  to constrain  a party  from          asserting such a claim  on remand, or, correspondingly, to  limit          the district court's discretion  in terms of entertaining  such a          claim.   See  Benitez-Allende,  857  F.2d  at  36;  Duckworth  v.                   ___  _______________                       _________                                          16          Franzen,  780 F.2d 645, 656-57 (7th Cir. 1985), cert. denied, 479          _______                                         _____ ______          U.S.  816 (1986).  We hold, therefore, that, apart from incipient          jurisdictional problems, a district court, on remand, retains its          discretionary  authority  to  entertain  a  new,  unpleaded  (but          related) claim.7                            B.  Supplemental Jurisdiction.                            B.  Supplemental Jurisdiction.                                _________________________                    Having  traced  the  contours of  the  district court's          discretionary power  to entertain a new,  unpleaded (but related)          claim,  both at  trial  and  on  remand,  and  finding  that  the          plaintiff's Law 17  claim fits  into this category,  we must  yet          determine  whether  the  court  below  can exercise  supplemental          jurisdiction  over  such  a  claim  on  remand  even  though  the          foundational  federal  claim  is  now  ancient  history.    After          carefully  considering   the  conundrum,  we  conclude  that  the          exercise of supplemental jurisdiction would be proper.8                    1.  In General.   The controlling statute, 28  U.S.C.                      1.  In General.                        __________          1367(a), states in relevant part:                                        ____________________               7The  fact that the statute of limitations for the claim may          have  lapsed does not present an insurmountable obstacle.  If the          new  claim arises out  of the same nucleus  of operative fact, it          will ordinarily relate back to the date of the institution of the          suit.  See Fed.  R. Civ. P. 15(c); see  also Benitez-Allende, 857                 ___                         ___  ____ _______________          F.2d at 36; Duckworth, 780 F.2d at 656-57.                      _________               8"Supplemental  jurisdiction"  is the  currently fashionable          term, embraced by Congress in drafting 28 U.S.C.   1367, that now          blankets  both "pendent  jurisdiction"  and  its kissing  cousin,          "ancillary  jurisdiction."    See  Wright,  supra,  at      9, 19                                        ___           _____          (discussing ancillary and pendent jurisdiction, respectively, and          how those  doctrines have been  codified and modified  by section          1367).  Balancing the past  and the present   melding the  wisdom          of tradition  with the virtue of  progress   we opt  for a middle          course and use the terms "supplemental jurisdiction" and "pendent          jurisdiction" interchangeably.                                          17                    [I]n any  civil action of which  the district                    courts   have   original  jurisdiction,   the                    district   courts  shall   have  supplemental                    jurisdiction over all  other claims that  are                    so  related  to claims  in the  action within                    such  original  jurisdiction  that they  form                    part  of the same  case or  controversy under                    Article    III    of   the    United   States                    Constitution. . . .          In enacting  section  1367,  Congress  essentially  codified  the          rationale articulated in United  Mine Workers v. Gibbs,  383 U.S.                                   ____________________    _____          715  (1966).  See Edmondson  & Gallagher v.  Alban Towers Tenants                        ___ ______________________     ____________________          Ass'n, 48 F.3d 1260, 1266 (D.C. Cir. 1995); Borough of W. Mifflin          _____                                       _____________________          v.  Lancaster, 45  F.3d 780,  788 (3d  Cir. 1995);  see generally              _________                                       ___ _________          Elizabeth   Delagardelle,  Note,   Defining  the   Parameters  of                                             ______________________________          Supplemental Jurisdiction  After 28 U.S.C.    1367,  43 Drake  L.          __________________________________________________          Rev.  391  (1994).   The  Gibbs  Court  instructed  that  pendent                                    _____          jurisdiction exists  when "the relationship between [the federal]          claim  and the state claim permits the conclusion that the entire          action before the court comprises but one constitutional `case.'"          Gibbs,  383  U.S.  at 725.9    In  particular,  "[t]he state  and          _____          federal claims  must derive  from a  common nucleus  of operative          fact."   Id.    Thus, "if,  considered  without regard  to  their                   ___          federal or  state character, a  plaintiff's claims are  such that          [she]  would  ordinarily  be expected  to  try  them  all in  one          judicial proceeding, then, assuming substantiality of the federal          issues,  there is  power in  federal courts  to hear  the whole."                                        ____________________               9The references  to "state" law  or "state" claims  in Gibbs                                                                      _____          and in  the statute, see 28  U.S.C.   1367(c)-(d), are  not to be                               ___          construed  literally.   Section 1367(e)  expressly provides  that          "the  term `State' includes . . . the Commonwealth of Puerto Rico          . . . ."                                          18          Id.;  see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349          ___   ___ ____ _____________________    ______          (1988); Vera-Lozano v. International Broadcasting, 50 F.3d 67, 70                  ___________    __________________________          (1st Cir. 1995); Brown v. Trustees of Boston Univ., 891 F.2d 337,                           _____    ________________________          356  (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990); Ortiz v.                                _____ ______                       _____          United States, 595 F.2d 65, 68-69 (1st Cir. 1979).          _____________                     The  relationship between  the  plaintiff's Title  VII          claim  and  her inchoate  claim under  Law  17 matches  the Gibbs                                                                      _____          Court's description in all significant respects.  Both claims are          civil  rights claims;  both  derive from  a  reservoir of  common          facts; and,  as a  consequence,  both would  ordinarily be  heard          together  in a  single  consolidated trial.    See, e.g.,  Andrea                                                         ___  ____          Catania,  State Employment  Discrimination  Remedies and  Pendent                    _______________________________________________________          Jurisdiction Under Title VII:   Access to Federal Courts,  32 Am.          ____________________________    ________________________          U. L. Rev. 777, 793 (1983).  Despite this apparent fit, appellant          argues  for  an opposite  result,  contending  that Congress,  in          enacting Title VII, forbade jurisdiction over supplemental claims          by implication.   Although there  appears to be  a smattering  of          authority  in  favor  of  this  position,  see,  e.g.,  Executive                                                     ___   ____   _________          Software N. Am., Inc. v. United  States Dist. Court for the Cent.          _____________________    ________________________________________          Dist. of Cal.,  24 F.3d 1545,  1554 n.6 (9th  Cir. 1994)  (noting          _____________          cases so holding); 13B Charles A. Wright et al., Federal Practice                                                           ________________          and Procedure   3567.1, at 24 & nn.30.1-30.2 (Supp. 1995) (same),          _____________          we reject it outright.                    In   our  judgment,   section  1367   itself  disproves          appellant's  hypothesis.   Whatever may  have been  the situation                                          19          before the  enactment of the supplemental  jurisdiction statute10            it may  have been  possible then to  detect scattered signs  of          implied  negation, see Kitchen v. Chippewa  Valley Sch., 825 F.2d                             ___ _______    _____________________          1004,  1010 (6th Cir. 1987)  (citing district court cases finding          implied negation of pendent jurisdiction under Title VII prior to          the  passage of  28 U.S.C.    1367)    section  1367 specifically          authorizes supplemental jurisdiction "[e]xcept . . . as expressly          provided  otherwise by  Federal statute  . .  . ."   28  U.S.C.            1367(a).  Since the  statutory text is unambiguous, and  no court          or  commentator  ever has  maintained  that  Title VII  expressly                                                                  _________          negates pendent  jurisdiction, there is simply  no credible basis          on  which  the  statute's   broad  jurisdictional  grant  can  be          shortstopped in the Title VII context.                    One additional point is worth  making.  While habit  or          practice is by no means the barometer of jurisdictional power, we          find  it  telling that  we have  not heretofore  encountered, let          alone embraced, the radical hypothesis advanced by the appellant.          To the precise  contrary, we have regularly  entertained suits in                                        ____________________               10Even  prior to the enactment of section 1367, the case for          implied negation was asthenic.  See, e.g., Thompkins v. Stuttgart                                          ___  ____  _________    _________          Sch. Dist. No. 22,  787 F.2d 439, 442 (8th  Cir. 1986) (rejecting          _________________          negation  argument and  holding that  a district  court "properly          could have exercised  jurisdiction over a state claim  pendent to          the . . . Title VII claim"); Catania, supra, at 796 ("Neither the                                                _____          language  nor  legislative  history  of  title  VII  reveals  any          congressional   intent  to   negate  the   exercise  of   pendent          jurisdiction  over related nonfederal claims asserted against the          title VII defendant.");  Richard D. Freer, Compounding  Confusion                                                     ______________________          and Hampering Diversity:  Life  After Finley and the Supplemental          _________________________________________________________________          Jurisdiction Statute,  40 Emory  L.J. 445, 462  (1991) (remarking          ____________________          that  "[m]ost  courts that  bothered to  mention  the need  for a          statutory basis . . . appear to have upheld jurisdiction").                                          20          which plaintiffs have joined Title VII claims with pendent state-          law  claims    and  we have  done so  both  before and  after the          passage of section 1367.  See, e.g., Vera-Lozano,  50 F.3d at 70;                                    ___  ____  ___________          Gallagher  v. Wilton Enters., Inc.,  962 F.2d 120,  121 (1st Cir.          _________     ____________________          1992) (per curiam); Conway v. Electro Switch Corp., 825 F.2d 593,                              ______    ____________________          595 (1st Cir. 1987).                    To  recapitulate, a  sexual  harassment  claim  brought          pursuant  to   state  law  falls  within   the  district  court's          supplemental  jurisdiction when,  as  now,  the court's  original          jurisdiction derives  from the  assertion  of a  Title VII  claim          arising out of  the same facts.   Thus,  the court below  plainly          possessed  the raw  power  to exercise  supplemental jurisdiction          over a claim under Puerto Rico Law 17, had one been asserted.                     2.   On  Remand.   Having determined  that supplemental                    2.   On  Remand.                         __________          jurisdiction would have attached had a Law 17 claim been advanced          ab initio,  we must  further determine whether  such jurisdiction          __ ______          remains available on remand, given that the district court has by          now slain the plaintiff's Title  VII claim on the merits.   Based          on controlling  law, we conclude  that supplemental  jurisdiction          would  be  proper  despite   the  interment  of  the  plaintiff's          foundational federal cause of action.                    As a general principle,  the unfavorable disposition of          a plaintiff's federal claims at the early stages of a suit,  well          before  the commencement  of  trial, will  trigger the  dismissal          without  prejudice of  any supplemental  state-law claims.   See,                                                                       ___          e.g.,  Gibbs, 383  U.S.  at 726  ("[I]f  the federal  claims  are          ____   _____                                          21          dismissed  before trial,  .  .  .  the  state  claims  should  be          dismissed as well."); Martinez  v. Colon, ___ F.3d ___,  ___ (1st                                ________     _____          Cir. 1995) [No. 94-2138, slip op. at 24] (affirming the dismissal          without  prejudice  of pendent  claims  when  the district  court          determined  "far in advance  of trial that  no legitimate federal          question  existed").  But this praxis  is not compelled by a lack          of judicial power.  It signifies only that, "in the usual case in          which all  federal law  claims are eliminated  before trial,  the          balance   of  factors   to  be   considered  under   the  pendent          jurisdiction  doctrine   judicial economy, convenience, fairness,          and comity   will point toward declining to exercise jurisdiction          over the remaining state-law claims."  Carnegie-Mellon Univ., 484                                                 _____________________          U.S. at 350 n.7.   In an appropriate  situation, a federal  court          may retain jurisdiction over state-law claims notwithstanding the          early demise  of all  foundational federal  claims.   See,  e.g.,                                                                ___   ____          Taylor  v. First of Am.  Bank-Wayne, 973 F.2d  1284, 1287-88 (6th          ______     ________________________          Cir. 1992).   Thus, as  long as the plaintiff's  federal claim is          substantial, the mere fact that it ultimately fails on the merits          does not, by itself, require that all pendent state-law claims be          jettisoned.  See, e.g., Duckworth,  780 F.2d at 656-57; Warehouse                       ___  ____  _________                       _________          Groceries Mgt., Inc. v. Sav-U-Warehouse Groceries, Inc., 624 F.2d          ____________________    _______________________________          655, 658-59  (5th Cir. 1980).   In other words, a  court need not          always throw out the bath water with the baby.                    To be sure,  the exercise of supplemental  jurisdiction          in such  circumstances is  wholly discretionary.   And, moreover,          the district  court, in reaching  its discretionary determination                                          22          on the jurisdictional question, will have to assess the  totality          of  the attendant circumstances.   Because each case  is bound to          have its own distinctive  profile, we are reluctant to  compose a          list of important  elements.   Instead, we cite  two examples  to          illustrate   the  wide   variety   of  considerations   that  may          appropriately  enter  into  the calculus.    The  running  of the          statute of limitations on a pendent  claim, precluding the filing          of a  separate suit in  state court,  is a salient  factor to  be          evaluated   when   deciding   whether  to   retain   supplemental          jurisdiction.  See, e.g., Wright v. Associated Ins. Cos., 29 F.3d                         ___  ____  ______    ____________________          1244, 1251 (7th Cir.  1994); Newman v. Burgin, 930 F.2d  955, 963                                       ______    ______          (1st Cir. 1991).  Another factor  to be weighed is the clarity of          the law that governs a pendent claim, for a federal  court may be          wise to forgo the exercise of supplemental  jurisdiction when the          state law  that undergirds  the nonfederal  claim  is of  dubious          scope  and  application.    See,  e.g., 28  U.S.C.     1367(c)(1)                                      ___   ____          (authorizing district courts to "decline to exercise supplemental          jurisdiction over a claim . . . if . . . the claim raises a novel          or  complex issue  of State  law"); see  also Moor  v. County  of                                              ___  ____ ____     __________          Alameda, 411 U.S. 693, 716 (1973); Gibbs, 383 U.S. at 726 & n.15.          _______                            _____                    We will not attempt to single out all the elements that          could potentially tip  the balance here.   That is grist for  the          district  court's mill.  It  suffices for our  purposes to remark          the  obvious:   that  although the  plaintiff's  Title VII  claim          ultimately  succumbed  on  the  merits,  it  was  colorable  when          brought.   Consequently, the  district court's power  to exercise                                          23          discretionary supplemental  jurisdiction over  a putative  Law 17          claim, extant at the time of trial, will remain intact on remand.                                C.  Charting a Course.                                C.  Charting a Course.                                    _________________                    To  this point,  we have  held (1)  that, as  a general          proposition,  supplemental jurisdiction over  state-law claims is          not  precluded in Title VII actions;  (2) that, in this case, had          proper  procedures   been  employed,  the  district  court  could          appropriately have  exercised  supplemental jurisdiction  over  a          claim brought pursuant  to Puerto Rico  Law 17; and (3)  that the          district court remains empowered, in its discretion, to entertain          a  Law 17 claim  on remand.   This means, of  course, that remand          ranks as a viable option from our standpoint.                    We  believe that remand is not only a viable option but          also  the best available  course.   In the  first place,  a hoary          policy of the law favors the disposition of claims on the merits.          See,  e.g., HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas,          ___   ____  _________________________    ________________________          Inc.,  847  F.2d 908,  917 (1st  Cir.  1988) (discussing  need to          ____          consider "the policy of the law favoring the disposition of cases          on the merits").  In the second place, considerations of fairness          counsel in favor of a remand as opposed to a disposition by fiat.          After all, a trial is a search for the truth, not merely a battle          of wits between  jousting attorneys.   Third    and perhaps  most          important    our determination rests upon a close analysis of the          nature  of the  decisionmaking that  a remand  would entail.   We          explain briefly.                    The multifaceted  decision about whether  to permit the                                          24          plaintiff  to  proffer a  Law 17  claim  and whether  to exercise          supplemental  jurisdiction  over  it  lies in  the  heartland  of          judicial discretion.   Because the plaintiff  neither pleaded nor          otherwise  seasonably advanced a Law  17 claim, the  court may in          its discretion simply deem  the case concluded and enter  a take-          nothing  judgment on the pleaded claims.  In the alternative, the          court  may in its discretion choose to reopen the proceedings and          invite the  plaintiff to move, under  Fed. R. Civ. P.  15(a), for          leave to amend  her complaint in order to assert  a Law 17 claim.          If that is  done, the court  (and the parties)  will then face  a          series  of judgment calls.  For example, adjudicating the Rule 15          motion   necessitates  a   further   exercise  of   the   court's          discretion.11  See  Coyne v.  City of Somerville,  972 F.2d  440,                         ___  _____     __________________          446 (1st Cir. 1992);  Correa-Martinez v. Arrillaga-Belendez,  903                                _______________    __________________          F.2d  49, 59  (1st  Cir. 1990).    The court  will  also have  to          determine  whether  it will  exercise  supplemental jurisdiction,          another  decision  that is  largely  discretionary.   See,  e.g.,                                                                ___   ____          Gibbs, 383 U.S. at 726  (explaining that pendent jurisdiction "is          _____          a doctrine of  discretion, not of  plaintiff's right"); see  also                                                                  ___  ____                                        ____________________               11We doubt that the  district court, if it decides  to cross          this bridge,  will have an easy time in passing upon a Rule 15(a)          motion.  Although  the rule evinces a  definite bias in favor  of          granting leave to  amend, see  Jamieson v. Shaw,  772 F.2d  1205,                                    ___  ________    ____          1208 (5th Cir. 1985), it frowns upon undue delay in the amendment          of pleadings, particularly if no legitimate justification for the          delay is forthcoming, see,  e.g., Quaker State Oil Ref.  Corp. v.                                ___   ____  ____________________________          Garrity Oil Co., 884  F.2d 1510, 1517-18 (1st Cir.  1989); United          _______________                                            ______          States Inv. &  Dev. Corp. v.  Cruz, 780 F.2d  166, 168 (1st  Cir.          _________________________     ____          1986).   A host  of other  factors also may  be relevant  and may          compound the  decisionmaker's difficulties.  See,  e.g., Foman v.                                                       ___   ____  _____          Davis, 371 U.S. 178, 182 (1962) (listing several considerations).          _____                                          25          Newman, 930 F.2d at  963 (reviewing factors pertinent to  the use          ______          or  withholding of  supplemental jurisdiction);  cf. 28  U.S.C.                                                             ___          1367(c)(3) (expressly authorizing a district court to decline the          exercise of supplemental jurisdiction  when it "has dismissed all          claims over which it has original jurisdiction").                    Given the critical role  of discretion in the decisions          that  must be  made, we think  that the district  court is better          equipped  to take the laboring  oar and to  determine whether the          case  should proceed  (and if  so, on  what terms).   As  we have          remarked  before,   "[t]he  very   nature  of  a   trial  judge's          interactive role assures an intimate familiarity with the nuances          of  ongoing litigation     a familiarity  that appellate  judges,          handicapped by the  sterility of an impassive record, cannot hope          to match."  Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st Cir. 1994).                      ____    ________          Here,  choosing  not  to  remand  would  effectively  ignore  the          district court's special competence in the realm of discretionary          decisionmaking.  Because  we can discern no basis  for displacing          the  trier in  so peremptory  a manner,  we conclude  that remand          represents the most appropriate remedy in this instance.          IV.  CONCLUSION          IV.  CONCLUSION                    We  need go no further.   The authority  of the federal          courts  to   entertain  grievances  is  neither   autopoetic  nor          illimitable; it  must,  in all  instances,  be traceable  to  and          constrained by an  antecedent constitutional or statutory  grant.          See  generally U.S. Const.  art. III,    1-2;  Cary v. Curtis, 44          ___  _________                                 ____    ______          U.S.  (3 How.) 236, 245 (1845).  Here, because the record reveals                                          26          no such mode of  empowerment   the district court's  award rested          on a claim that was never properly introduced into the case   the          judgment entered below cannot stand.                    Nonetheless,  the district  court continues  to possess          the  power to entertain  a properly presented  claim under Puerto          Rico Law 17 even at this late date.  Hence, we remit the case for          a  more considered  appraisal of this  aspect of the  matter.  On          remand,  the trial  court may  simply bring  the litigation  to a          close,12  or  it  may elect,  in  its  discretion,  to allow  the          plaintiff the opportunity to present and to develop such a claim,          subject to any  constraints imposed by the  jurisprudence of Fed.          R. Civ.  P. 15 and  28 U.S.C.   1367.   If the  court pursues the          latter  route, it must concomitantly  ensure that the parties are          provided adequate  discovery and  "the standard prophylaxis  that          generally  obtains at trial."   Lussier v. Runyon,  50 F.3d 1103,                                          _______    ______          1113  (1st Cir.  1995), petition  for cert.  filed (U.S.  June 5,                                  ________  ___ _____  _____          1995) (No. 94-1979).  Nothing we have said in this opinion should          be interpreted  as an  effort to  suggest a result  to the  lower          court.                                        ____________________               12Should  the  district court  opt,  in  its discretion,  to          follow this course and deny leave to amend, it may further choose          to condition  that order  on the  defendant's stipulation  not to          raise a statute-of-limitations defense  if the plaintiff attempts          to  press a Law 17 claim in a  Puerto Rico court.  See Edwards v.                                                             ___ _______          Okaloosa  Cty., 5  F.3d 1431,  1435 n.3  (11th Cir.  1993) ("When          ______________          considering dismissal of pendent claims  after a state statute of          limitations  has  run,  district  courts  commonly   require  the          defendants to file a waiver of the statute of limitations defense          as  a  condition of  dismissal.");  Duckworth,  780  F.2d at  657                                              _________          (conditionally remanding pendent claim).                                          27          Vacated and remanded.  No costs.          Vacated and remanded.  No costs.          ____________________   ________                                          28
