             United States Court of Appeals
                        For the First Circuit

Nos. 09-2625; 09-2626

                       YONATTA CRISPIN-TAVERAS,

                         Plaintiff, Appellee,

                                  v.

 MUNICIPALITY OF CAROLINA; KARIMAR PERAZA-DELGADO; CAPTAIN RUBEN
      MOYENO, Director of the Special Unit; LIEUTENANT JOHN
             CRUZ-GONZALEZ; SERGEANT LUIS DIAZ-RUIZ,

                        Defendants, Appellants,

JOSE C. APONTE-DALMAU, as Mayor of the Municipality of Carolina;
   COLONEL CARLOS HADDOCK, individually and in his capacity as
 Commissioner of the Municipality of Carolina Police Department;
VANNESA CARMONA; ALFREDO RIVERA-SUAREZ; JOHN DOE 1-10; INSURANCE
                         COMPANY D, E, F,

                              Defendants.


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

            [Hon. José Antonio Fusté, U.S. District Judge]


                                Before

                       Lipez, Siler,* and Howard,
                             Circuit Judges.


     Johanna M. Emmanuelli Huertas and Jorge Martinez-Luciano on
brief for appellant Municipality of Carolina.
     Angel E. Rotger-Sabat on brief for appellants Karimar Peraza-
Delgado, Captain Rubén Moyeno, Lieutenant John Cruz-González, and
Sergeant Luis Díaz-Ruiz.


     *
         Of the Sixth Circuit, sitting by designation.
Mauricio Hernandez Arroyo on brief for appellee.


                     May 25, 2011
            SILER,     Circuit    Judge.       Plaintiff-Appellee    Yonatta

Crispin-Taveras ("Crispin") brought a civil rights action against

Defendants-Appellants Municipality of Carolina (the "Municipality")

and various Municipality police officers.               The district court

defaulted the defendants for discovery violations.             After a jury

trial on damages, the district court entered a judgment in favor of

Crispin in the amount of $75,000.                The Municipality and the

individual officers now appeal, challenging the default sanction,

the   admission   of    psychological       treatment   evidence,   the   jury

instructions, and the sufficiency of service of process.             For the

reasons stated below, we affirm.

                                 I. BACKGROUND

A.    Factual Background

            During a baseball game between the Puerto Rico national

team and the Dominican Republic national team held at the Roberto

Clemente Stadium in Carolina, Puerto Rico, in 2007, a spectator

known as "Oscar" was celebrating in the aisles with a Dominican

flag. The Carolina Municipal Police Department intervened in order

to eject Oscar from the stadium.

            Crispin, a U.S. Marine from the Dominican Republic, was

at the game wearing a hat with the insignia of the Dominican flag.

He became involved in the confrontation and alleged that the police

officers violently grabbed and removed him from the stands, struck

him in the head with a metal baton, and then handcuffed and


                                      -3-
detained him in the stadium detention center.               He was eventually

transported to a hospital where he received stitches to close a

wound to his head.

             Both sides faced criminal charges.            Crispin was charged

with aggravated assault and destruction of property, but the

charges were dismissed.          Three of the officers, Lieutenant John

Cruz-González     ("Cruz"),    Sergeant      Luis   Díaz-Ruiz   ("Díaz"),   and

Officer Karimar Peraza-Delgado ("Peraza") were indicted on federal

civil rights violations, but were acquitted.

B.   Procedural Background

             On October 25, 2007, Crispin filed a civil rights action

in the District of Puerto Rico against the Municipality, the mayor

of   the    Municipality,     an   association      of   Municipality   police

officers, two Commonwealth of Puerto Rico police officers, and

three insurance companies.          He also named as defendants various

individual Municipality police officers, including Captain Rubén

Moyeno     ("Moyeno"),   Cruz,     Peraza,    and   Díaz    (collectively   the

"individual defendants").

             1.   Service of Process

             On April 3, 2008, Moyeno filed a motion to dismiss, and

Cruz, Díaz, and Peraza filed a motion to join it.                They alleged

they were served with the summons and complaint on February 28 and

29, 2008, which was more than 120 days after the filing of the

complaint in violation of Federal Rule of Civil Procedure 4(m).


                                      -4-
Crispin responded that dismissal was not required because there was

no prejudice and Rule 4(m) allows the district court to direct

service by a specified time, which was now unnecessary because the

defendants were served.     The district court denied the motions.

           The Municipality filed an answer on September 4, 2008,

and the individual defendants filed an answer on September 26,

2008.   The individual defendants later filed a motion to withdraw

their answer because they alleged that Cruz, Díaz, and Peraza were

included in the answer by "human error."         The district court

granted the motion and allowed the withdrawal of their answer.

           In February 2009, Peraza and Cruz filed a motion to

dismiss for improper service.    They alleged that Crispin failed to

effectuate personal service and failed to do so within the time

afforded by Rule 4(m).      In opposition, Crispin argued that the

defendants did not challenge the method of service in their April

2008 motion to dismiss.        He further argued that service was

properly executed upon an attorney in the Municipality’s legal

department.     The district court denied the motion.

           2.    Discovery Disputes

           In December 2008, Crispin filed a motion to compel,

alleging that the individual defendants had failed to produce Rule

26 disclosures or answer Crispin's interrogatories or requests for

production.     The individual defendants opposed the motion, arguing




                                  -5-
that they were not aware of any unproduced documents. The district

court denied Crispin's motion without prejudice.

            After a stay of the case during the pendency of the

federal   criminal   proceedings,    the   district    court   conducted   a

scheduling conference.      See Fed. R. Civ. P. 16.             During the

conference, the district court ordered the defendants to answer all

pending written discovery requests within ten days and ordered

discovery to be completed by June 30, 2009.           Moyeno sent his Rule

26 initial disclosures to Crispin the day after the conference.

            On June 11, 2009, Crispin filed a motion for sanctions

against the Municipality, Cruz, Díaz, and Peraza, alleging they had

failed to provide Rule 26 disclosures or respond to discovery

requests.   The district court conducted a telephone conference on

June 24, 2009, and decided to hold the motion for sanctions in

abeyance. Following the conference, the court issued the following

ruling:

            Rule 26 Meeting Report due by 7/3/2009.     I
            have noted the content of [Crispin's motion
            for sanctions] and make reference to the
            directions given by me during the telephone
            conference held today.       If any of the
            mentioned parties have failed to fully comply
            with Rule 26 disclosures, then their last
            clear chance for compliance is the date set
            herein. Otherwise, sanctions will be imposed
            including striking evidence not included in
            Rule 26 disclosures. Be guided accordingly.




                                    -6-
           On June 24, 2009, Crispin moved for entry of default

against   Cruz,   Díaz,   and    Peraza     for    their   failure   to   file    a

responsive pleading.

           Crispin also filed a motion on June 30, 2009, seeking

additional time for his expert report because Cruz, Díaz, and

Peraza    never   answered      his   interrogatories       or   requests     for

production of documents.        Another reason he sought additional time

was because the Municipality allegedly failed to comply with its

continuing Rule 34 obligations.             See Fed. R. Civ. P. 26 & 34.

During the depositions of the officers, Crispin learned that the

Municipality's    Internal      Affairs     Department     was   conducting      an

investigation.      Crispin alleged that, besides a two-page sworn

statement by Díaz, the Municipality did not produce any documents

arising out of this investigation. The district court gave Crispin

an extension to produce the expert report.

           On July 4, 2009, Crispin filed a motion "in compliance

with" the district court's order holding Crispin's June 11, 2009

motion for sanctions in abeyance.                 Crispin requested numerous

sanctions, including the imposition of a default judgment.

           The defendants never filed an opposition to Crispin’s

June 11, 2009 motion for sanctions.          On July 8, 2009, the district

court found the Municipality, Cruz, Díaz, and Peraza in default,

concluding:

                    Having   examined  Defendants'   track
           record    of   non-compliance  with   discovery

                                      -7-
           obligations, and considering the averments
           contained in [Crispin's motions], the court
           ORDERS as follows:

                  Defendants Municipality of Carolina,
           Karimar Peraza-Delgado, John Cruz-González,
           and Luis Díaz-Ruiz will face sanctions for
           their failure to comply with discovery
           obligations. Plaintiff's factual allegations
           are deemed admitted, Defendants' defenses and
           pleadings are stricken, and a liability
           default finding is made.

           The Municipality filed a motion for reconsideration.              It

alleged it sent initial Rule 26 disclosures and produced all

documents in its possession.       In support, it attached a list of the

exhibits it produced and a copy of its initial Rule 26 disclosures.

Cruz, Díaz, and Peraza joined and supplemented the Municipality's

motion.    They alleged that their default was not willful because

their DOJ attorney withdrew, leaving them without counsel and

unable to respond to the motion for sanctions.

           Crispin filed a "second motion for sanctions" against

Moyeno, Puerto Rico Police Officers Vanessa Carmona and Alfredo

Rivera-Suárez,    and   Carolina    Police     Commander,    Colonel    Carlos

Haddock.     He   alleged   they   had   not   complied     with    outstanding

discovery requests or produced Rule 26 disclosures.                Moyeno never

filed a response.

           The district court ordered Crispin's counsel to file a

list of outstanding discovery owed to Crispin by each defendant,

and Crispin did so two days later.



                                    -8-
           The district court then granted Crispin's second motion

for sanctions as to the other defendants, including Moyeno.            It

struck their pleadings and entered a default for their failure to

provide timely discovery.         The district court also denied the

Municipality’s motion for reconsideration of the default sanction.

           3.   Trial

           A jury trial on damages commenced in October 2009.

Before   and    during   trial,   the   Municipality   objected   to   the

introduction     of   evidence    concerning   Crispin's   psychological

treatment on the grounds that Crispin failed to provide all of his

medical records during discovery.         Despite Crispin's failure to

provide all of his medical records, the Municipality was able to

acquire Crispin’s medical records by subpoena.

           The district court did not allow Crispin to present any

evidence that he did not provide to the Municipality.       On the other

hand, the district court permitted the Municipality to use all of

the medical records that it had acquired on its own by subpoena.

           The Municipality proposed a lengthy jury instruction on

causation, but the district court declined to give the proposed

instruction.    The jury rendered a verdict in favor of Crispin, and

against the Municipality in the amount of $35,000, Moyeno in the

amount of $10,000, Cruz in the amount of $10,000, Peraza in the




                                    -9-
amount of $10,000, and Díaz in the amount of $10,000.1   This appeal

followed.

                            II.   ANALYSIS

A.   Service of Process

            The individual defendants argue that they were never

properly served with process under Federal Rules of Civil Procedure

4(e) and (m) and, as a result, the judgment should be reversed.

The district court's decision regarding dismissal for insufficient

service of process is reviewed for abuse of discretion.          See

Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 106 (1st Cir.

2008).

            Federal Rule of Civil Procedure 4(m), which governs the

timing of service, provides,

                   If a defendant is not served within 120
            days after the complaint is filed, the
            court--on motion or on its own after notice to
            the plaintiff--must dismiss the action without
            prejudice against that defendant or order that
            service be made within a specified time. But
            if the plaintiff shows good cause for the
            failure, the court must extend the time for
            service for an appropriate period.

            Federal Rule of Civil Procedure 12 allows a party to file

a motion to dismiss for insufficient service of process.        This

motion "must be made before pleading if a responsive pleading is

allowed."    Fed. R. Civ. P. 12(b).



      1
      The jury did not assess damages against Haddock, Carmona, and
Rivera-Suárez.

                                  -10-
              "[A] party that makes a motion under [Rule 12] must not

make another motion under this rule raising a defense or objection

that was available to the party but omitted from its earlier

motion."      Fed. R. Civ. P. 12(g)(2).   Omitting a defense under these

circumstances results in waiver.          Fed. R. Civ. P. 12(h)(1)(A);

Chute v. Walker, 281 F.3d 314, 319-20 (1st Cir. 2002).

              Moyeno filed a motion to dismiss for improper service

under Rule 4(m) on April 3, 2008, and Cruz, Díaz, and Peraza filed

a motion to join Moyeno’s motion on April 14, 2008.       These motions

were filed before their responsive pleadings and thus were timely.

              In their motions, the individual defendants challenged

the timing of the service of process.          Crispin's complaint was

filed on October 25, 2007, and therefore service of process was due

on or before February 22, 2008.       See Fed. R. Civ. P. 4(m).     The

individual defendants were not served until February 28 and 29,

2008.       Thus, the individual defendants were served over 120 days

after the filing of the complaint in violation of Rule 4(m).

              The problem for the individual defendants is that, when

they filed these initial motions, they admitted that they were

served and challenged only the timing of the service.2            (DE 8


        2
      Had the individual defendants not admitted they were served,
they might have prevailed because the service was improper.
Crispin attempted to serve the individual defendants by delivering
a copy of the summons and complaint to an attorney in the
Municipality’s legal department.      This method of service was
effective only as to the official-capacity claims, but it was not
effective as to the individual-capacity claims. See Perez-Sanchez,

                                   -11-
("Ruben Mo[y]eno Cintron . . . w[as] served with summons on

February 29, 2008.")); (DE 9 ("On February 28, 2008, the appearing

defendants, [Cruz, Díaz, and Peraza], were served with summons and

a copy of the Amended Complaint . . ..")).              A district court is not

required to dismiss a defendant when service is not made within the

120-day deadline.         See Fed. R. Civ. P. 4(m).         The district court

also has the option to "order that service be made within a

specified    time."       Id.      Given   that   the    individual    defendants

admitted in their motion to dismiss that they were served on

February 28 and 29, 2008, the district court's denial of the motion

was   effectively     a   ruling    that   service      could   be   performed   by

February 29, 2008.        This decision was within the district court’s

discretion under Rule 4(m).

            The individual defendants' later motion challenging the

method of service does not help them.              This motion was filed on

February 19, 2009, almost a year after the alleged service of

process.    By this time, it was too late.         The individual defendants

had already sought dismissal for improper service in April 2008.

They could have objected to the method of service at that time.

Their failure to do so means their objection to the method of

service was waived.        See Fed. R. Civ. P. 12(g)(2); Fed. R. Civ. P.

12(h)(1)(A); SEC v. Beisinger Indus. Corp., 552 F.2d 15, 20 (1st

Cir. 1977) (holding that insufficient service defense was waived


531 F.3d at 106.

                                       -12-
where the defendants' initial motion to dismiss alleged only that

service was impossible, not that service was improperly effectuated

under Rule 4).

B.   Default

            Appellants argue the record does not support the district

court's imposition of a default judgment.         The district court's

imposition of a default judgment as a sanction is reviewed for

abuse of discretion.      Remexcel Managerial Consultants, Inc. v.

Arlequin, 583 F.3d 45, 51 (1st Cir. 2009).

            Federal Rule of Civil Procedure 37(b) gives the district

court a "veritable arsenal of sanctions" for failure to comply with

discovery   orders,   including   designating    facts   as   established,

striking pleadings, or rendering a default judgment.             Malot v.

Dorado Beach Cottages Assocs., 478 F.3d 40, 44 (1st Cir. 2007).

Although a "drastic sanction," "[t]he entry of a default judgment

provides a useful remedy when a litigant is confronted by an

obstructionist    adversary   and    plays   a   constructive    role   in

maintaining the orderly and efficient administration of justice."

Remexcel Managerial Consultants, 583 F.3d at 51 (citations and

internal quotation marks omitted).

            When faced with a motion for sanctions, the non-moving

party must file an opposition.      District of Puerto Rico Local Rule

7(b) states, "Unless within fourteen (14) days after the service of

a motion the opposing party files a written objection to the


                                    -13-
motion, incorporating a memorandum of law, the opposing party shall

be deemed to have waived objection." A party’s failure, on account

of ignorance or neglect, to timely oppose a motion in the district

court constitutes forfeiture.        See Rivera-Torres v. Ortiz Velez,

341 F.3d 86, 102 (1st Cir. 2003).

          The Municipality, Cruz, Díaz, and Peraza never filed a

response to Crispin's June 11, 2009 motion for sanctions.           The

district court gave them until June 29, 2009, to file a response to

the motion.    Although the district court held the motion in

abeyance on June 24, 2009, this did not relieve the parties of

their obligation to respond.    Indeed, after the motion was held in

abeyance, Crispin continued to file motions alleging the defendants

were not complying with discovery obligations.        When the district

court defaulted the Municipality, Cruz, Díaz, and Peraza on July 8,

2009, they had still not responded.      It was not until their motion

for   reconsideration   that   the     defendants   disputed   Crispin’s

allegations.   A motion for reconsideration of a sanction order,

however, cannot revive claims that were forfeited by failing to

timely oppose the original motion.        See Marks 3 Zet-Ernst Marks

GmBh & Co. KG v. Presstek, Inc., 455 F.3d 7, 15 (1st Cir. 2006).

Accordingly, the Municipality, Cruz, Díaz, and Peraza forfeited any

objection to Crispin’s motion for sanctions.3       See id.


      3
      There was at least a forfeiture here and therefore we will
proceed under a forfeiture analysis. Given the local rule and the
knowledge the parties had, they may have actually waived their

                                 -14-
           Similarly, Moyeno never responded to Crispin’s July 16,

2009 motion for sanctions and therefore forfeited any objection to

the motion.      The district court gave Moyeno until August 3, 2009,

to file a response. When the district court sanctioned Moyeno with

default on August 11, 2009, Moyeno had not filed an opposition.

           Because appellants forfeited their argument by failing to

raise it in a timely manner, we review only for plain error.                 See

Rivera-Torres, 341 F.3d at 102. "We apply the plain error doctrine

'stringently'     in   civil    cases,"    Gaydar     v.   Sociedad    Instituto

Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15, 23 (1st

Cir. 2003) (quoting Trull v. Volkswagen of Am., Inc., 320 F.3d 1,

6 (1st Cir. 2002)), and we are not persuaded that this is "one of

those rare occasions when the standard is met," Diaz-Fonseca v.

Puerto Rico, 451 F.3d 13, 36 (1st Cir. 2006).

           By not filing responses, the defendants never informed

the   district    court   how     they    complied    with   their     discovery

obligations.        Without     any    opposition,     Crispin's      assertions

regarding the inadequacy of the defendants' responses could be

credited   by    the   district   court.      While    default   was    a   harsh

sanction, it was brought on by appellants' persistent failure to

comply with the court's discovery orders and was preceded by the

court's "clear advance warning."           Goya Foods, Inc. v. Unanue, 233

F.3d 38, 48 (1st Cir. 2000).          There was no abuse of discretion—let


objection.

                                       -15-
alone plain error—in the district court’s decision to sanction

appellants in this manner.         See Remexcel Managerial Consultants,

583 F.3d at 51.

C.   Psychological Testimony

           Appellants argue that the district court should have

excluded testimony of Crispin's psychological treatment because

Crispin   failed   to    provide   all   of    his   medical   records    during

discovery.

           "We review the district court's decisions to admit or

exclude evidence for abuse of discretion."                 United States v.

Jadlowe, 628 F.3d 1, 23 (1st Cir. 2010).              Federal Rule of Civil

Procedure 37(c)(1) states, "If a party fails to provide information

or identify a witness as required by Rule 26(a) or (e), the party

is not allowed to use that information or witness to supply

evidence on a motion, at a hearing, or at a trial, unless the

failure was substantially justified or is harmless."

           Crispin      identified   his      treating   physicians      in   his

discovery materials, and therefore Rule 37(c)(1) does not preclude

the admission of their testimony. Although Crispin did not provide

all of his medical records during discovery, the admission of the

evidence was harmless to the Municipality because it was able to

obtain the records on its own using a subpoena and the district

court did not allow Crispin to use any records that he failed to

provide to it.     Accordingly, there was no abuse of discretion in


                                     -16-
the    admission     of   evidence    regarding      Crispin's     psychological

treatment.

D. Jury Instruction on Causation

            Appellants argue that the district court's failure to

give the Municipality's proposed jury instruction on causation was

reversible error.

              “The    trial     court's   refusal     to   give    a   particular

instruction constitutes reversible error only if the requested

instruction was (1) correct as a matter of substantive law, (2) not

substantially incorporated into the charge as rendered, and (3)

integral to an important point in the case.”               White v. N.H. Dep't

of Corr., 221 F.3d 254, 263-64 (1st Cir. 2000) (quoting United

States v. DeStefano, 59 F.3d 1, 2 (1st Cir. 1995)).

            The Municipality's argument fails at prong two because

the jury was adequately instructed on causation.                   See id.     The

district court explained, "Any award you may enter in this case

must   be   based    on   the     evidence    and   must   be    based   on    your

dispassionate analysis of the extent of the injuries, if any,

sustained by the plaintiff as a result of any defendant's wrongs,

if any."     (emphasis added).        The district court also instructed

that damages must be found by a preponderance of the evidence and

that "the mere fact that I am discussing the issue of damages

doesn't mean that you have to find damages."                  These instructions

adequately    informed      the    jury      that   Crispin     must   prove   the


                                       -17-
defendants' actions caused the damages and that damages should not

be presumed.   Thus, the district court did not err in refusing to

give the Municipality's requested instruction.

          AFFIRMED.




                               -18-
