
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-2190                             ERIC DELGADO-BIAGGI, ET AL.,                               Plaintiffs, Appellants,                                          v.                           AIR TRANSPORT LOCAL 501, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            John Ward Llambias for appellants.            __________________            Malcolm A. Goldstein,  with whom Joel C. Glanstein, Manuel  Porro-            ____________________             _________________  ______________        Vizcarra,  O'Donnell,  Schwartz,  Glanstein  &  Rosen,  and  Lopez-Lay        ________   __________________________________________        _________        Vizcarra & Porro, were on brief for appellees.        ________________                                 ____________________                                     May 5, 1997                                 ____________________                      STAHL, Circuit Judge.  Plaintiff-appellant     Eric                      STAHL, Circuit Judge.                             _____________            Delgado-Biaggi1   brought   an  action   against  defendants-            appellees  Air  Transport Local  501  ("Local  501") and  the            Transport   Workers   Union  of   America,   AFL-CIO  ("TWU")            (collectively,  "the  Union")   under  the   Labor-Management            Reporting and  Disclosure Act ("LMRDA"), 29  U.S.C.    401 et                                                                       __            seq., claiming the  denial of due  process and the  arbitrary            ____            and discriminatory removal of his shop steward position.  The            district  court  granted summary  judgment  in  favor of  the            Union, from  which Delgado-Biaggi  now appeals.   Because the            district court's failure to comply with Federal Rule of Civil            Procedure   56(c)   denied   Delgado-Biaggi    a   meaningful            opportunity to oppose the Union's summary judgment motion, we            vacate the judgment and remand for further proceedings.                                          I.                                          I.                                          __                           Background and Prior Proceedings                           Background and Prior Proceedings                           ________________________________                      We  recite the  pertinent facts  in the  light most            favorable  to  Delgado-Biaggi,  the  party  opposing  summary            judgment.  See Hachikian  v. F.D.I.C., 96 F.3d 502,  504 (1st                       ___ _________     ________            Cir. 1996).                      Delgado-Biaggi joined the Local  501 chapter of the            TWU in 1991 when he began  working for American Airlines as a            baggage handler.  One  year later, Delgado-Biaggi was elected                                            ____________________            1.  Delgado-Biaggi's wife, Nilda  Fernandez-Zayas, and  their            conjugal partnership are also plaintiffs.  For simplicity, we            refer only to Eric Delgado-Biaggi and his claims.                                         -2-                                          2            to a union  shop-steward position  for the  bag room,  second            shift.2   In September  1993, Delgado-Biaggi bid  for a first            shift position, which he obtained because of his seniority.                      In  October  1993,  shortly   after  Delgado-Biaggi            changed work shifts, the  chairman of Local 501 handed  him a            letter  from Local  501's  Executive Vice-President,  William            Tlasek,  which  purported  to   acknowledge  Delgado-Biaggi's            "resignation" of  his shop  steward's position.   In November            1993, Delgado-Biaggi responded to Tlasek by letter, asserting            that he  had not resigned as  shop steward and that  he had a            right to remain in office unless he was duly removed pursuant            to  Local 501's  bylaws.   Tlasek,  in  turn, responded  that            Delgado-Biaggi's  shift-change   automatically  effected  his            resignation under  Article VII(a) of the  union bylaws, which            provides: "A Shop Steward who leaves the unit or shift he was            elected by, will continue  to serve at the discretion  of the            Executive Board."                      Dissatisfied  with  that  response,  Delgado-Biaggi            complained again to Tlasek by letter  dated January 14, 1994,            also to  no avail.  Not willing to concede the issue, he then            retained  an attorney who, in  March 1994, wrote  a letter to            Local  501 claiming denial of  due process in  the removal of            Delgado-Biaggi  as  steward.   The  leadership  of Local  501                                            ____________________            2.  Shop  stewards are  union representatives  who personally            handle problems that their fellow employees raise  concerning            management.                                         -3-                                          3            remained unmoved.   In April  1994, Delgado-Biaggi's  counsel            attempted   to  appeal  by   letter  to  TWU's  International            Executive Council.  The Council's stated reason for rejecting            the  appeal was  Delgado-Biaggi's failure to  personally file            the letter.  Delgado-Biaggi did  not resubmit his appeal, but            instead commenced this litigation in June 1994.                      On June  13, 1996,  after a desultory  beginning to            the  prosecution of this case, the district court set a trial            date of July 1, 1996.  On June 17, the Union responded to the            setting  of the  trial date  by filing  a motion  for summary            judgment.3   On  Friday, June  28, the  parties met  with the            district  court  judge  in   chambers  for  a   non-scheduled            conference.   During  this meeting,  Delgado-Biaggi announced            his  intention  to  oppose  the Union's  motion  for  summary            judgment with oral and  documentary evidence on the following            Monday, July 1, the scheduled first day of trial.                      The following Monday morning, before Delgado-Biaggi            had  an opportunity  to  present his  opposing evidence,  the            parties were handed an opinion and order granting the Union's                                            ____________________            3.  We note  that  the  Union submitted  the  June  17,  1996            summary judgment motion well  after the court's November 1995            deadline for the filing of the dispositive motion.  The court            allowed the untimely motion although, as the record reflects,            the Union did  not first  seek and obtain  leave to file  the            motion out  of time.  See  In re San Juan  Dupont Plaza Hotel                                  ___  __________________________________            Fire Litigation, 45 F.3d 564, 566 (1st Cir. 1995) (explaining            _______________            that  summary judgment  proponent must  obtain permission  to            file motion out of time where filing deadline "had long since            passed").                                         -4-                                          4            motion for summary judgment.   The terse opinion  stated that            "[t]he union's actions in [construing  Delgado-Biaggi's shift            change as a resignation  of shop stewardship] were authorized            by its by-laws, which make perfect sense, since, of course, a            shop steward is of little  use if he does not work  the shift            he represents."    The  order  concluded that  "none  of  the            union's conduct violates the rights protected under 29 U.S.C.              411."  The  court did  not entertain oral  argument on  the            motion.                      Thereafter,  Delgado-Biaggi  filed   a  motion   to            reconsider  along  with   a  sworn  declaration   from  Jorge            Brignoni, a  former Chairman of  Local 501.   The declaration            stated  that  union  stewardships are  "never"  withdrawn  or            deemed resigned as a result of a shift change, and that                      [i]t  has  never  been  the  practice  in                      Puerto Rico to consider a change of shift                      as an automatic  resignation . . . .  The                      only  case  where such  an interpretation                      has  been  attempted  is  when  Mr.  Eric                      Delgado was unilaterally  removed by  the                      then Chairman Mr. Rafael Perez.            Delgado-Biaggi   further  submitted   an  excerpt   from  the            deposition of  Jose Rodriguez, a Board  member, who testified            that  the Executive  Board had  never removed  Delgado-Biaggi            from his shop  steward position.   The district court  denied            the motion to reconsider.  This appeal followed.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                                         -5-                                          5                      On  appeal, Delgado-Biaggi argues that the district            court  prematurely granted summary  judgment and  that, given            the proper opportunity  to respond to the  Union's motion, he            would have produced  evidence sufficient to  preclude summary            judgment.  The Union offers a  host of arguments in favor  of            upholding the  court's disposition of the  action and insists            that "the district court handled the case properly."                      Federal Rule of Civil Procedure 56(c) provides that            a summary judgment motion  "shall be served at least  10 days            before  the time  fixed for  the hearing."   Fed. R.  Civ. P.            56(c).   We have interpreted  Rule 56(c) to  allow an adverse            party at  least ten days  to respond to a  motion for summary            judgment.   See  Stella v. Town  of Tewksbury, 4  F.3d 53, 55                        ___  ______    __________________            (1st Cir. 1993) ("[S]ummary judgment targets should be secure            in the knowledge  that they will  have at least  ten days  in            which to  formulate  and prepare  their  best  opposition.");            Melanson  v. Caribou Reefers,  Ltd., 667  F.2d 213,  214 (1st            ________     ______________________            Cir. 1981).  Indeed, "the purpose of Rule 56(c) is to allow a            party to have a meaningful opportunity to challenge a summary            judgment  motion."    Cia.  Petrolera Caribe,  Inc.  v.  Arco                                  _____________________________      ____            Caribbean, Inc., 754 F.2d 404,  409 (1st Cir. 1985) (internal            _______________            quotation marks and citation omitted).4                                            ____________________            4.  We note that, while  Rule 56(c) refers to a  "hearing" in            relation  to the ten day  proviso, the rule  does not require            oral argument  in  connection  with  the motion.    See  Cia.                                                                ___  ____            Petrolera Caribe, 754 F.2d at 411 (explaining that the motion            ________________            may be "heard" on the papers).                                         -6-                                          6                      The Union filed its  motion for summary judgment on            Monday, June 17, 1996.  Excluding the day on which the motion            was filed as well as the intervening Saturday and Sunday, see                                                                      ___            Fed.  R.  Civ.  P.  6(a), the  ten-day  requirement  afforded            Delgado-Biaggi until the end of the business day Monday, July            1, to submit  his opposition.   By ruling  on the morning  of            July  1, before  Delgado-Biaggi  could  present his  opposing            evidence,  the  district  court  denied   him  the  requisite            opportunity  to contest  the motion.   As we  previously have            admonished, the  "[ten day] notice requirement  is not merely            window   dressing"  and  the  "proper  province"  of  summary            judgment is "to  weed out  claims that do  not warrant  trial            rather than simply  to clear  a court's docket."   Stella,  4                                                               ______            F.3d  at 55.   We find that  the court erred  when it granted            summary   judgment   before   Delgado-Biaggi  exhausted   his            opportunity to challenge the Union's motion.5                      The   Union   overlooks   the    procedural   flaws            accompanying the  entry of summary judgment  and endeavors to            persuade  us  that,  in any  event,  the  record reflects  no            genuine issue of material fact.  In Stella, we "decline[d] to                                                ______            delve into  the substantive  aspects of plaintiffs'  cause of            action"  because  "leapfrogging to  the merits  would display                                            ____________________            5.  The error  is somewhat  amplified by the  undisputed fact            that, during the June  28 chambers conference, Delgado-Biaggi            notified the district court that he would submit his opposing            evidence the following Monday, July 1.                                         -7-                                          7            much the same disregard  for established protocol that marred            the district court's performance."   4 F.3d at 55.   Assuming            harmless error jurisprudence applied  in such cases, we noted            that  the  peculiar  procedural  regime  the  district  court            employed in that case thwarted any such analysis.  See id. at                                                               ___ ___            56 n.4.                      We acknowledge that this  case does not present the            extreme procedural shortcomings involved  in Stella.  See id.                                                         ______   ___ ___            at 54  (reversing summary  judgment where,  on  first day  of            trial, judge directed defendants to move for summary judgment            and   afforded  plaintiffs  thirty  minutes  to  prepare  for            argument).6  The district court's failure to comply with Rule            56(c),  however, necessitates  that we  afford Delgado-Biaggi            "every  latitude to show that [the Union] was not entitled to            summary  judgment."   Melanson,  667 F.2d  at 214.   Assuming                                  ________            arguendo that  harmless error analysis applies  to Rule 56(c)            ________            infirmities,  we cannot  say  that the  court's noncompliance            with the ten-day notice requirement was harmless.                      The  sworn  statements   submitted  with   Delgado-            Biaggi's motion  to reconsider  comprise evidence  that Local            501 never  previously considered a shift-change  an automatic                                            ____________________            6.  Although we construed the district court's proceedings in            Stella as involving  a sua sponte grant  of summary judgment,            ______                 ___ ______            our  observations concerning  Rule 56(c)'s  requirements were            not limited  to that summary judgment subset.   See 4 F.3d at                                                            ___            55;  see also Berkovitz v. Home Box Office, Inc., 89 F.3d 24,                 ___ ____ _________    _____________________            29-30 (1st Cir. 1996).                                         -8-                                          8            resignation of a  shop steward's  position and  that, in  any            event, the  Executive  Board never  exercised its  discretion            within the  meaning of  Article VII(a) to  terminate Delgado-            Biaggi's  stewardship.   Indeed, the  Union conceded  at oral            argument before us that  there was no evidence in  the record            to  establish  that  the  Board  had  met  to   exercise  its            discretion.7   This  undisputed fact  undermines the  court's            crucial   findings   in  its   summary  judgment   order  and            sufficiently  raises  the  question  of a  genuine  issue  of            material fact.  Thus,  we cannot view the  flawed proceedings            below as involving harmless error.                      Furthermore,  by  the  Union's own  reasoning,  its            contention that  Delgado-Biaggi fails to state  a claim under            the  LMRDA  depends  on  the Executive  Board's  powers  and,            ultimately, the  disputed question  whether the Board  met to            exercise its  discretion.   The Union's other  arguments also            raise significant issues neither fully presented nor squarely            addressed below.8  See In re San Juan Dupont Plaza Hotel Fire                               ___ ______________________________________                                            ____________________            7.  Without deciding the issue, we note  that the language of            Article  VII(a)  appears  to  contemplate  the  uninterrupted            service of  a shop  steward who changes  shifts, absent  some            action by the Executive Board.            8.  For example, the Union  argues that Delgado-Biaggi failed            "to exhaust reasonable hearing  procedures (but not to exceed            a four-month lapse of time) within [the union]" before filing            his  action.     29   U.S.C.    411(a)(4).     This  argument            potentially requires factbound  determinations regarding  the            "reasonableness" of  the hearing  procedures and  the precise            event that  triggered the  four month period.   The  district            court  never reached  this issue  and, given  the undeveloped                                         -9-                                          9            Litigation, 45 F.3d  564, 567, 568  (1st Cir. 1995)  (finding            __________            harmful  error  where  appellate  court  was not  "completely            certain that  the merits  of the  summary judgment  issue had            been fully  presented to  the  district court"  and where  "a            significant  legal  issue,  not  squarely  addressed  by  the            district   court"   remained   unresolved  due   to   court's            abbreviated summary  judgment proceedings).  We  are loath to            endorse  the  district  court's  disregard   for  Rule  56(c)            protocol by reaching the merits of these undeveloped matters.            See Stella, 4 F.3d at 55.            ___ ______                      We conclude that, largely because of the absence of            evidence establishing Executive Board  action, as well as the            procedural failure  below, remand for further  proceedings is            the  appropriate solution.  See  In re San  Juan Dupont Plaza                                        ___  ____________________________            Hotel Fire Litigation, 45 F.3d at 568.            _____________________                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For the foregoing  reasons, we vacate  the judgment                                                     ______            of the district  court and  remand the  case for  proceedings                                        ______            consistent with this opinion.  Costs to appellants.                                           ___________________                                            ____________________            record, we decline to reach it at this time.                                         -10-                                          10
