          United States Court of Appeals
                     For the First Circuit


No. 16-2412

      RICARDO RODRÍGUEZ-TIRADO; ANGELICA TIRADO-VELÁZQUEZ,

                     Plaintiffs, Appellants,

                               v.

                       SPEEDY BAIL BONDS,

                      Defendant, Appellee,

    AMERICAN RELIABLE BAIL BONDS, LLC; MICHELLE ROMÁN; DANNY
                 DOMÍNGUEZ; ELIOENAI FERNANDEZ,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Bruce J. McGiverin, U.S. Magistrate Judge]


                             Before

                       Howard, Chief Judge,
              Torruella and Boudin, Circuit Judges.


     Guillermo Ramos Luiña on brief for appellants.
     Jorge Martínez-Luciano, with whom ML & RE Law Office,
Heriberto Güivas-Lorenzo, and Güivas-Lorenzo Law Office were on
brief, for appellee.


                          May 30, 2018
            BOUDIN, Circuit Judge.       The    present    case    concerns

cross claims arising out of an attempt by a bail bondsman to seize

a bailed man who had failed to appear for a court hearing.               In

2010, Ricardo Rodríguez-Tirado ("Rodríguez") was charged with a

criminal offense in New Jersey and was later released on bail to

await further proceedings.

            Instead, Rodríguez left New Jersey to return to his home

in Puerto Rico, itself a violation of the bail agreement.              When

Rodríguez thereafter missed a court date in New Jersey, the bail

bond, posted by American Reliable Insurance ("Reliable"), was

declared forfeited by the New Jersey Superior Court.          Reliable was

an Arizona-based company acting as a corporate surety in New Jersey

in concert with its local agent, Speedy Bail Bonds ("Speedy").

Following   the   bond   forfeiture,   Speedy    undertook    to   retrieve

Rodríguez and deliver him to New Jersey, aiming to have the

forfeited bail money returned to Reliable.          This, it appears, is

a minuet well known to the world of bail bonds.

            Agents acting for Speedy traveled to Puerto Rico where,

aided by an off-duty policeman, they confronted Rodríguez, seized

him, and bundled him into a car.         Speedy later claimed that its

agents calmly explained to Rodríguez that they were there to take

him back to New Jersey because he had jumped bail, that no weapons

were used to menace him, and that the agents escorted Rodríguez to

their car, using handcuffs only as a precaution.          Rodríguez claims


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that he was violently seized at gunpoint without any explanation,

shackled, and thrown into the car, and that he had no knowledge of

the missed court date.

             This   episode   was   witnessed    by    Rodríguez's     mother,

Angélica Tirado-Velázquez ("Tirado").            She telephoned a local

attorney, who learned that no outstanding warrant or extradition

request had been lodged with Puerto Rico authorities against

Rodríguez.     On behalf of Tirado, the attorney filed a complaint

with the police.

             A warrant was issued for the arrest of the bounty

hunters, who were staying in a hotel next to the airport with their

captive, awaiting a flight to New Jersey.               The bounty hunters

surrendered to the authorities, Rodríguez was released, and the

bounty hunters were charged with kidnapping and gun offenses--

charges ultimately dropped.

             Rodríguez filed suit in federal court in Puerto Rico

against Speedy and various other defendants, seeking damages for

his seizure and detention by the defendants; his mother as co-

plaintiff claimed mental anguish from having witnessed her son's

"kidnapping" and "violent removal" from the house.           The plaintiffs

voluntarily     dismissed     all   defendants        save   Speedy,    which

counterclaimed for breach of the bail agreement.

             Following a four-day trial, the jury returned a verdict

in favor of Speedy, dismissing the tort claims by Rodríguez and


                                    - 3 -
his mother with prejudice and awarding Speedy $1,500 on its

counterclaim for damages caused by Rodríguez's breach of his

obligations under his bail agreement.   A central question at the

trial, resolved in Speedy's favor in the jury instructions, was

the right of a bounty hunter to pursue, seize, and return to the

bailing jurisdiction a bail-jumper like Rodríguez.     Much of the

argument at trial, renewed on this appeal, centered around an

oft-cited Supreme Court case, Taylor v. Taintor, 83 U.S. 366

(1873), which ruled that at common law the authority of the bounty

hunter to pursue, seize, and return the bail jumper was well

established.   Whether this was holding or dicta was disputed.

          The waters were further muddied because the Supreme

Court has occasionally cited and never repudiated Taylor, but a

number of states have, by statute or otherwise, narrowed the rights

of the bailer to pursue and seize a bail jumper.    The parties in

this court have not cited anything that cleanly resolves the

question of what Puerto Rico judges would say about Taylor.

          This appeal followed the district court judgment and,

not surprisingly, much of the parties' briefing renews the debate

about the current status of Taylor.     Both sides seem to assume

that, if only the Supreme Court would make clear its current view

of the rights of bondsmen and their agents to pursue bail-jumpers

into other jurisdictions, the matter would be settled.   We take a

different view.


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           What the parties have overlooked is that the Supreme

Court decided Taylor during the regime of Swift v. Tyson, 41 U.S.

1 (1842), in which courts conceived of the common law as a

"brooding omnipresence in the sky," S. Pac. Co. v. Jensen, 244

U.S. 205, 222 (1917) (Holmes, J., dissenting), to which federal

and state courts alike accorded respect unless altered by statute

or otherwise in a particular jurisdiction; and the Supreme Court

was itself the final arbiter of disputes about the content of the

common law.

           This attitude persisted into the twentieth century until

it was definitively and dramatically discarded by Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938).     See Henry Friendly, In Praise of

Erie: And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383

(1964).   Absent some federal interest not claimed by any party or

apparent to us, what the Puerto Rico courts or legislators decide

should be the law governing conduct within its own jurisdiction

will control regardless of what view of bailer authority is today

taken by the Supreme Court.   See Restatement (Second) of Conflict

of Laws § 145(1).

           The question of Puerto Rico law and out-of-state bounty

hunters has not been briefed and we therefore remand the case to

the district court to consider that issue in the first instance,

resolving as far as feasible now the first of two issues on appeal.




                                - 5 -
            The second issue is whether the district court erred by

failing to decide for itself whether certain damages claimed by

Speedy were foreseeable under the terms of the bail agreement.

The bail agreement stipulated that Rodríguez would be "responsible

for any costs incurred by Speedy Bail Bonds for [his] re-arrest,"

and Rodríguez argues that Speedy never presented the jury with

concrete evidence as to the damages it suffered; the suggestion is

that the jury's modest damages award was based on an estimate of

the costs that the company incurred bailing out its bounty hunters

and defending them in the initial court proceedings in Puerto Rico.

Because those costs flowed from the intervening actions of a third

party when his mother called the police, Rodríguez claims they

were not foreseeable under the contract.

            While the costs incurred by Speedy for bailing its agents

out   of   jail   might   arguably    not    be   foreseeable   contractual

damages--Tirado having broken the chain of causation--the jury did

not award $1,500 for such costs.             The Fugitive Fee Contract,

incorporated into the Bail Agreement and signed by Rodríguez the

day he was released on the bond, specified that Rodríguez was to

pay "the greater of $1,500 or 10 percent of the amount of the Bond"

to Speedy if he was deemed to be a fugitive, meaning if he failed

to appear for a court hearing or had his bail forfeited.                If

apprehended or located outside of New Jersey as a fugitive,

however, the contract stated that Rodríguez was to pay "the greater


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of $1,500 or 20 percent of the amount of the Bond."   This document

was shown to the jury, and the damages award was almost certainly

pegged directly to this fugitive fees clause, operating as a

liquidated damages provision.

          The damages award on the counterclaim is affirmed, and

the case is remanded to the district court for further proceedings

on the question of whether the jury instructions as to the tort

claims accurately reflected Puerto Rico law.   Each side shall bear

its own costs.

          It is so ordered.




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