
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1940                    HIDEKO T. WORCESTER AND CHARLES E. WORCESTER,                               Plaintiffs, Appellants,                                          v.                       FILENE'S BASEMENT, CORPORATION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Hideko T. Worcester and Charles E. Worcester on brief pro se.            ___________________     ____________________            Joseph  P.  Musacchio  and Melick  &  Porter,  LLP  on  brief  for            _____________________      _______________________        appellees  Filene's Basement Corporation,  Howard Nyman, Ray McCarthy,        Colleen Fitzpatrick, Maureen Supple, and Retail Enterprises, Inc.            Merita A. Hopkins and Robert J. Boyle, Jr. on  brief for appellees            _________________     ____________________        Francis M. Roache, Ralph Caulfield, and Leo Coogan.                                 ____________________                                  September 5, 1997                                 ____________________                      Per   Curiam.     Appellants  Hideko   and  Charles                      ____________            Worcester appeal from the amount  of damages the jury awarded            and from  two orders of  the district court entered  prior to            trial.  For  the following reasons, we  find that appellants'            contentions lack merit.                      1.    Damages.   First,  "[w]e  generally  will not                            _______            review  a  party's  contention  that  the  damages  award  is            excessive or insufficient where the party has failed to allow            the  district court  to rule  on  the matter."   O'Connor  v.                                                             ________            Huard, 117 F.3d  12, 18 (1st Cir. 1997).  The record reflects            _____            that  the district  court  was never  provided  with such  an            opportunity.   In  any event,  the  only evidence  appellants            present in support of their  claim that the damages award was            too  low is new  evidence.   Of course,  this court  does not            consider  arguments or evidence not presented to the district            court.   Matthews v.  Marsh, 755 F.2d  182, 183-84  (1st Cir.                     ________     _____            1985).                      2.   Joseph  Doe's Dismissal.  We  think that  what                           _______________________            appellants really  are  complaining  about  is  the  district            court's  denial  of  their   motion  to  substitute   "Robert            Constine" for  "Joseph Doe,"  which we treat  as a  motion to            amend  the complaint  to  add an  additional  defendant.   We            review the denial  of such a motion for  abuse of discretion.            Resolution Trust  Corp. v. Gold,  30 F.3d 251, 253  (1st Cir.            _______________________    ____            1994).  "[U]nseemly delay, in combination with other factors,                                         -2-            may warrant denial  of a suggested amendment."   Quaker State                                                             ____________            Oil Refining  Corp. v. Garrity  Oil Co., 884 F.2d  1510, 1517            ___________________    ________________            (1st Cir. 1989).                      Here,  appellants  waited  to  move  to  amend  the            complaint  for about one year after  the other police officer            involved in Hideko's  arrest had been identified.   In such a            situation, "the movant[s]  ha[ve] the burden of  showing some                            ______            valid reason for  [their] neglect and delay."   Grant v. News                                                            _____    ____            Group Boston, Inc., 55 F.3d 1, 6 (1st Cir. 1995).  Appellants            __________________            do  not present  such reasons.    First, to  the extent  that            appellants allege  that the  actions of  their prior  counsel            contributed to the  delay in moving  to amend the  complaint,            appellants  are  bound by  the  acts  or omissions  of  their            attorneys.  United States v.  One Lot of $25,721 in Currency,                        _____________     ______________________________            938 F.2d 1417, 1422 (1st Cir. 1991).                      Second,  the  record  reveals  that  after  counsel            withdrew,  it was appellants'  own inaction which  caused the            further  delay.    Such inaction  cannot  constitute  a valid            reason.   See  Hayes v.  New  England Millwork  Distributors,                      ___  _____     ____________________________________            Inc.,  602 F.2d  15, 20 (1st  Cir. 1979).   In any  event, we            ____            think  that both  the court and  the police  defendants would            have been  prejudiced by the  addition of a new  defendant so            late  in the  case because  discovery  would have  had to  be            reopened.  See Grant, 55 F.3d at 5-6.                       ___ _____                                         -3-                      3.    Motion  of  Francis  M.  Roache  for  Summary                            _____________________________________________            Judgment.  The district court did not abuse its discretion in            ________            denying appellants' request for more time in which to conduct            the discovery  necessary to  oppose this  motion because  the            record  reveals that  prior  to the  motion,  ample time  had            existed  for such  discovery.   See Price  v.  General Motors                                            ___ _____      ______________            Corp., 931 F.2d 162, 164  (1st Cir. 1991) (a party  must show            _____            "good  cause" for  the failure  to  have conducted  discovery            earlier).   Further, "[a]  court may  grant summary  judgment            despite  an opposing party's claim that discovery would yield            additional facts  where the  opposing party  has not  alleged            specific   facts  that   could  be  developed   through  such            discovery."  Taylor v. Gallagher, 737 F,2d 134, 137 (1st Cir.                         ______    _________            1984).  Appellants alleged no such facts here.                      We  have  reviewed  the  remainder  of  appellants'            arguments and can  find no reason to disturb  the judgment of            the district court.  Affirmed.                                 ________                                         -4-
