
USCA1 Opinion

	




          March 16, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2056                             ERIC APONTE and ELBA GARCIA,                               Plaintiffs, Appellants,                                          v.                         PUERTO RICO MARINE MANAGEMENT, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            Guillermo Ramos Luina with whom Harry  Anduze Montano was on brief            _____________________           _____________________        for appellants.            Rafael Cuevas Kuinlam with whom Cuevas  Kuinlam & Bermudez was  on            _____________________           __________________________        brief for appellee.                                 ____________________                                 ____________________                       Per  Curiam.     Eric  Aponte  and Elba  Garcia,  the                       ___  ______          plaintiffs in  this diversity  case, filed a  complaint in  which          they claimed that Puerto Rico  Marine Management (1) violated its          contract  with  Aponte  by  improperly dismissing  him  from  his          position   of  General   Manager,   and  (2)   in  the   process,          "intentionally  and  maliciously  misinformed  the  press"  about          events  related to the dismissal.  The defendant pointed out that          Puerto  Rico's "Law 80",  see P.R. Laws  Ann. tit. 29,    185a et                                    ___                                  __          seq.,  limits damages  for wrongful  dismissal to an  amount well          ____          below the federal diversity  jurisdiction minimum of $50,000, see                                                                        ___          28 U.S.C.   1332.  It moved for summary judgment, Fed. R. Civ. P.          56, and, alternatively,  to dismiss the complaint  for failure to          state a claim, Fed. R. Civ. P. 12(b)(6).   The plaintiffs concede          that  the district  court correctly  granted summary  judgment in          respect to  their claim for  wrongful dismissal, but  they appeal          its decision dismissing their separate libel claim.                       We agree with the plaintiffs that the district  court          should  not have dismissed  the libel claim.   Our reason is that          the defendant's motion for  summary judgment, read in conjunction          with the memorandum or law which  supports it, does not appear to          seek summary judgment on  that claim.  Rather, the  defendant, in          that  motion, says that it  seeks dismissal for  the reasons that          (1) the "additional damages  requested by the plaintiff[s] .  . .          are not recoverable  as a matter of law;" (2)  Puerto Rico's "Law          80" limits wrongful  discharge damages to about $12,000;  and (3)          even   assuming  attorney's   fees  were   awarded,  the   amount          recoverable  under the  complaint would  not satisfy  the $50,000          jurisdictional  requirement.   It assumes  that the  libel count,          rather  than setting  forth  a separate  cause of  action, simply          seeks extra damages for a wrongful dismissal.                _____ _______                       It may  well be  that defendant  intended to move  to          dismiss  all of the causes of action in the complaint, contending          that  both the  discharge-related libel  claims and  the wrongful          discharge claims were preempted by the exclusive remedy set forth          in "Law  80."   However, if  this was the  intention, it  was not          clearly expressed by the defendant's motion, especially when that          motion is read in conjunction with the accompanying memorandum of          law,  which  largely limits  itself  to  discussion of  "wrongful          discharge"  law.   As a  consequence, we  believe  the plaintiffs          could  reasonably  have  considered the  defendant's  motion  for          dismissal  or  summary  judgment to  have  referred  only  to the          "wrongful dismissal" claim, not to the "libel and slander" claim.          That  being  so,  the  plaintiffs  need  not  have  responded  by          "set[ting] forth specific facts showing  there is a genuine issue          for  trial" with  regard to  the libel  claim.   Fed. R.  Civ. P.          56(e).  Rather,  they could simply have pointed out  to the court                                         -3-                                          3          that the summary judgment motion and memorandum had ignored their          separate libel claim.  And, that is what the plaintiffs did.                        The plaintiffs may themselves be partly to blame  for          the failure of  the defendant's  motion to refer  to their  libel          claim as a separate cause of action, distinct from their wrongful          discharge  claim.   Their  complaint says  at  the outset,  in  a          separate section entitled "nature of the action," that the                        nature of the action is for the recovery                       of   contractual   damages   caused   to                       plaintiffs  as  a result  of defendant's                       wrongful and  discriminatory termination                       of employment.           Someone reading these  words alone might have concluded  that the          plaintiffs meant  their later  allegations of  libel to  refer to          damages caused by the wrongful dismissal, not to a separate cause          of action.  Nonetheless, the plaintiffs, in a separate section VI          of their complaint, do  set forth the elements of a  libel claim.          They state, for example, that the defendant "maliciously provided          journalists with . . . erroneous information [about Eric Aponte's          responsibility  for financial  irregularities]  with .  . .  full          knowledge  of  its  falsity"  or "with  negligent  disregard  for          truth."   They  specify the  way in  which these  alleged actions          harmed the plaintiffs.   And, most importantly,  they entitle the          paragraphs of section  VI the  "Second Cause of  Action."   Later                                          _______________________          developments  in  the  case   should  have  further  alerted  the                                         -4-                                          4          defendant  that  the complaint  purported to  set out  a separate          cause of action for libel.   In their response to the  motion for          summary judgment, plaintiffs refer to  "their cause of action for          libel  and slander  which is  based .  . .  on acts  of defendant          separate   and   distinct"  from   "the  actual   termination  of          employment."   And,  the court's  "initial scheduling  conference          order"  refers to the  libel and  slander action  as a  "cause of          action"    separate  from  the   cause  of  action  for   "unjust          termination."  Under these circumstances, we believe it necessary          to  treat  the complaint  as setting  forth  a separate  cause of          action for libel and slander.   See Fed. R. Civ. P.  8(f); Conley                                          ___                        ______          v.  Gibson,  355  U.S.  41, 45-46  (1957)  (complaint  should  be              ______          interpreted   liberally  to  accord   with  concepts   of  notice          pleading).                       Without knowing  the specific  facts  upon which  the          allegations of  libel and  slander rest,  we cannot know  whether          Puerto  Rico's laws governing  claims for  libel and  for "unjust          dismissal" permit  or forbid recovery.  On remand, the defendant,          of course, remains free  to move for summary judgment  in respect          to  the libel and slander claim; in response, the plaintiffs will          likely have to particularize their factual showing.                                         -5-                                          5                       The judgment  of the  district  court dismissing  the          plaintiffs'  claim for libel and slander is vacated and this case          is remanded with instructions to reinstate that claim.                       So ordered.                        ___________                                         -6-                                          6
