

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1867

                MIGUEL ANGEL AYALA-GERENA, ET AL.,

                     Plaintiffs - Appellants,

                                v.

                  BRISTOL MYERS-SQUIBB COMPANY,
               d/b/a BRISTOL MYERS-SQUIBB, ET AL.,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. H ctor M. Laffitte, U.S. District Judge]                                                                 

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                  Coffin, Senior Circuit Judge,                                                        

                     and Cyr, Circuit Judge.                                                     

                                           

     Jes s  Hern ndez-S nchez,  with whom  Hern ndez  S nchez Law                                                                           
Firm was on brief for appellants.              
     Carl Schuster, with  whom Schuster Aguil  &amp; Santiago  was on                                                                   
brief for appellees.

                                           

                        September 5, 1996
                                           

          TORRUELLA, Chief Judge.   Plaintiffs-Appellants, former                    TORRUELLA, Chief Judge.                                          

employees of Squibb Manufacturing, Inc. ("SMI"), their wives, and

their conjugal partnerships, brought action below seeking damages

arising  from the termination of  their employment.  They brought

alleged  violation of their  civil rights under  42 U.S.C.   1981

due to their dismissal  due to their national origin  and/or race

as Puerto Ricans; violation  of their right to privacy  under   8

of Article II of  the Constitution of the Commonwealth  of Puerto

Rico; defamation under 32 L.P.R.A.   3141-3149; and for breach of

contract.1  The United States District Court, District of  Puerto

Rico, dismissed  the last claim  and granted summary  judgment on

the first  three in favor  of Defendants-Appellees, Bristol-Myers

Squibb  Co. ("BMSC")  and four  of its  employees:   Mark Geraci,

Director  of  Corporate  Security  ("Geraci"),   Eugene  Hackett,

Manager  of Corporate  Security ("Hackett"),  Tibur Kerr,  Acting

Plant  Administrator  ("Kerr"),  and   Bryan  Dunne,  Manager  of

Corporate Security ("Dunne").  This appeal ensued.  We affirm.

                            BACKGROUND                                      BACKGROUND                                                

          Reviewing the  summary judgment materials  in the light

most  favorable to  Appellants, the  nonmovants, and  drawing all

reasonable inferences  in their favor,  see, e.g., Alan  Corp. v.                                                                        

Int'l Surplus Lines Ins.  Co., 22 F.3d 339, 341 (1st  Cir. 1994),                                       

we  present  a  thumbnail   sketch  of  the  factual  background,

providing greater detail as the need arises.
                                                  

1   Appellants requested, and  the court granted  with prejudice,
dismissal  of their claim under  Puerto Rico Law  100 of June 30,
1959, 29 L.R.P.A.   146.

                               -2-

          Appellants, all Puerto  Ricans, were regular  employees

of  SMI -- which  is not  a party to  this action  -- in Humacao,

Puerto Rico.  It  is uncontested that SMI's employees  are mostly

Puerto  Rican.    According  to  Appellants'  complaint,  Geraci,

Hackett, Kerr  and Dunne of BMSC were sent to Puerto Rico in 1991

and 1992  in connection  with a security  investigation regarding

missing inventory at SMI and the suspected illegal trafficking of

pharmaceutical   drugs  and   other  products.     According   to

Appellants' complaint, Appellees  developed a "discriminatory and

persecutorial  policy"  against  them  in furtherance  of  BMSC's

interest  in taking  control  of SMI's  management.   Geraci  and

possibly others at BMSC contracted with certain named individuals

to carry on the security investigation, which included conducting

a  surveillance of  Appellants  and  their  families,  pressuring

Appellants to testify falsely against SMI's management as part of

BMSC's  attempt to gain control over SMI, and using illegal means

to obtain evidence to be used to dismiss Appellants.   Geraci and

Dunne   individually   interviewed   SMI   employees,   including

Appellants, as part of the ongoing security investigation.  On or

about  the date  of  the individual  interviews, Appellants  were

dismissed from their employment at SMI between March and May 1992

without  being  told  the reason  for  their  dismissal.   It  is

uncontested  that no  one else  participated in  these interviews

except  for a  translator, that  the interviews  took place  in a

discrete  manner, and  that it  was Appellants  that subsequently

publicized the details of the interviews. 

                               -3-

                            DISCUSSION                                      DISCUSSION                                                

          Appellants  raise  four  challenges  to   the  district

court's grant of summary judgment:  (i) discovery  was improperly

cut  off;  (ii) their  production  of  documents was  erroneously

denied; (iii)  summary judgment was erroneously  granted on their

conspiracy claims;  and  (iv)  summary  judgment  was  improperly

granted  on their  breach of  contract claim.   We  address each.

Because the  first two  involve intertwining facts  and the  same

standard of review, we address them together.

           A.  Discovery Cut Off &amp; Document Production                     A.  Discovery Cut Off &amp; Document Production

          Appellants  raise  two discovery-related  challenges on

appeal.   First, invoking Fed. R. Civ. P. 56(f), Appellants argue

that the district  court erred when  it granted summary  judgment

without  affording them  the benefit  of conducting  a reasonable

discovery.   In support thereof, they claim they were diligent in

their pursuit of discovery  but that Appellees refused  to comply

with  their  requests  and  the district  court  granted  summary

judgment without  acting upon their motions  to compel discovery.

Second,  they claim error by the district court's denial of their

February 9,  1994, request  for production of  certain documents.

Appellees counter,  asserting that the record  clearly shows that

the  district  court granted  Appellants  ample  time to  conduct

discovery, and  that  they did  not "hide"  any information  from

Appellants.  Thus, they  contend that the district court  did not

abuse its discretion in denying their document production request

as untimely.

                               -4-

          It  is  well settled  that  the trial  judge  has broad

discretion  in ruling  on  pre-trial management  matters, and  we

review  the district court's denial of discovery for abuse of its

considerable  discretion.  See Fusco  v. General Motors Corp., 11                                                                       

F.3d  259, 267 (1st Cir.  1994); Serrano-P rez v.  FMC Corp., 985                                                                      

F.2d  625, 628  (1st  Cir. 1993).    "We will  intervene in  such

matters only upon a clear showing of manifest injustice, that is,

where the  lower court's  discovery order was  plainly wrong  and

resulted in substantial prejudice to  the aggrieved party."  Mack                                                                           

v. Great Atlantic  and Pacific Tea Co.,  Inc., 871 F.2d  179, 186                                                       

(1st Cir. 1989).   The same abuse of discretion  standard applies

to a review of a district  court's denial of a Rule 56(f) motion.

See,  e.g., Resolution Trust Corp.  v. North Bridge Assoc., Inc.,                                                                          

22  F.3d 1198,  1203 (1st  Cir. 1994);  Price v.  General Motors,                                                                           

Corp., 931 F.2d 162, 164 (1st Cir. 1991).               

          Before  addressing Appellants' arguments, we detail the

pertinent procedural  history as revealed by  the relevant docket

entries:

          1.   8/10/92:  Complaint filed.                                
          2.   5/18/93:  Scheduling Order sets discovery deadline                                
                         for 10/15/93. 
          3.   10/18/93: Appellants  move  to  extend  discovery.                                 
                         New deadline set for 11/30/93.
          4.   11/15/93: Appellants  request document  production                                 
                         pursuant to Fed. R. Civ. P. 34.
          5.   11/18/93: Appellants   move    again   to   extend                                 
                         discovery.  New deadline set for 1/3/94.
                         Court states this is the last extension.
          6.   12/8/93:  Appellants move for status conference to                                
                         clarify discovery and to  further extend
                         discovery by sixty days.  Denied.
          7.   12/17/93: Pretrial Conference set for 2/4/93.                                 

                               -5-

          8.   1/3/94:   Appellants  move  to order  witnesses to                               
                         attend oral deposition.  Denied (see 11,
                         below).
          9.   1/10/94:  Appellees  move   for  summary  judgment                                
                         (SJ).
          10.  1/14/94:  Appellants move for extension  to oppose                                
                         SJ.    Granted.     Opposition  due   by
                         2/20/94.
          11.  1/14/94:  Appellants   move   again   to   clarify                                
                         discovery   process.     Denied,  citing
                         failure to comply  with Fed. R.  Civ. P.
                         45(c)  regarding   personal  service  of
                         subpoena and noting that it cannot allow
                         further  disruption  in  the  scheduling
                         order.
          12.  2/2/94:   Appellees   submit   proposed   pretrial                               
                         order.
          13.  2/3/94:   Appellants file SJ opposition.                               
          14.  2/4/94:   Pretrial   Conference.     Court  grants                               
                         parties until 2/10/94  to prepare  joint
                         pretrial order.  Court denies Appellees'
                         motion to dismiss.
          15.  2/9/94:   Appellants move to supplement opposition                               
                         to  SJ,  to compel  document production,
                         and to appoint special process server.
          16.  2/10/94:  Pretrial  Conference. Appellants  submit                                
                         proposed pretrial order.   Court  grants
                         pretrial order.  
          17.  2/17/94:  Appellees    file    response   to    SJ                                
                         opposition.
          18.  3/11/94:  Court  grants   SJ,  denies  Appellants'                                
                         motion to compel document production and
                         to  appoint  a  special process  server.
                         Court enters partial  judgment in  favor
                         of Appellees.  Appellants' severance pay
                         claim,   as   ordered  to   be  amended,
                         remains.
          19.  3/21/94:  Appellants move to  postpone jury  trial                                
                         to  file   reconsideration  motions  and
                         motion for new trial.  Granted.
          20.  3/28/94:  Appellants  move for  reconsideration of                                
                         grant of SJ.  Denied (see 22, below).
          21.  3/29/94:  Appellants    move    for     additional                                
                         discovery.
          22.  6/5/95:   Court  denies   Appellants'  motion  for                               
                         reconsideration,    grants    Appellees'
                         motion    to   strike    third   amended
                         complaint, and  denies Appellants' leave
                         to file a fourth amended complaint.

                               -6-

          We turn  first to  Appellants' reliance on  Rule 56(f).

Rule  56(f) "looms  large" when  a party  claims an  inability to

respond  to  an opponent's  summary  judgment  motion because  of

incomplete discovery,  Resolution Trust  Corp., 22 F.3d  at 1202,                                                        

given that it is "intended  to safeguard against judges  swinging

the  summary judgment  axe  too hastily,"  id.  at 1203.    While                                                        

certainly  district  courts  should construe  Rule  56(f) motions

generously, we have noted that 

            [t]his does not mean .  . . that [it] has
            no  bite or that  its prophylaxis extends
            to litigants who act lackadaisically; use
            of  the rule  not  only requires  meeting
            several  benchmarks  .  .  .  , but  also
            requires due diligence  both in  pursuing                                                  
            discovery  before  the  summary  judgment                                       
            initiative  surfaces  and in  pursuing an                                               
            extension of time  thereafter.  In  other
            words, Rule 56(f) is designed to minister
            to the vigilant, not to those who slumber
            upon perceptible rights.

Id.  at 1203 (emphasis  added).  We  have also held  that a party             

must invoke  Rule 56(f) within  a reasonable  time following  the

receipt of a motion for summary judgment.  Id. at 1204.                                                          

          With  this rubric  in  mind, we  find that  Appellants'

invocation of Rule 56(f)  is misplaced for at least  two reasons.

First,  the record  shows  that Appellants  filed their  original

opposition  to summary judgment  without previously informing the

court of their inability to  properly oppose summary judgment due

to  incomplete discovery.   In fact,  Appellants never  sought an

additional  extension  of  the discovery  deadline  before filing

                               -7-

their  opposition.2   Moreover,  both  Appellants' original3  and

supplemental4 oppositions  to  summary judgment  are  deafeningly

silent  as to their inability  to oppose summary  judgment due to

incomplete  discovery.   The first  time Appellants  informed the

district  court  about  outstanding  discovery  was  during   the

February 4, 1994, and  February 10, 1994,  pre-trial conferences,

after  having  already  filed their  opposition  and supplemental

opposition respectively. 

          Second,  we  are  hard-pressed to  conclude  that  this

record supports a finding that Appellants exercised due diligence

or were  otherwise "vigilant" before Appellees  moved for summary                                              

judgment on January 10, 1994.  After requesting and receiving two

extensions,  discovery concluded  on  January 3,  1994 --  almost
                                                  

2  While they did file  on January 14, 1994, a motion  to clarify
the  discovery process, they did not mention in that motion their
need for additional discovery in order to properly oppose summary
judgment.  The district  court denied their motion,  noting their
failure  to comply  with  the Federal  Rules  of Civil  Procedure
regarding service and the ample time they had for discovery.

3    Appellants'  ten-page  opposition addressed  the  merits  of
Appellees'  arguments  in  favor of  summary  judgment,  attached
various depositions  and suggested that, if the  court "[had] any
doubt" about the truth  as revealed by the attached  depositions,
it  could  schedule  a  hearing  or  grant  additional  time  for
Appellants to address in greater detail  each of the "defendants'
outrageous conclusions."   Docket No. 50, p.  9.  The  only basis
advanced  for not responding to  each of the  arguments was "time
restrictions." 

4   While Appellants  do state  in their  supplemental opposition
that the records finally  received from Appellees are "incomplete
according to the depositions  taken to [sic] co-defendants .  . .
[which] are part  of the  record", Appellants do  not argue  that
they are unable to oppose summary  judgment because of incomplete
discovery; indeed,  they state that  "although incomplete  . .  .
[these  records]  clearly  reveal  the   discriminatory  animus."
Docket No. 51, p. 2. 

                               -8-

eighteen months after Appellants  filed their complaint on August

10, 1992, and almost eight months after the court's May 18, 1993,

scheduling  order.    Appellants  did  not  serve  a request  for

document  production  until November  12,  1994,  after they  had

received their first extension5  and only two weeks prior  to the

end of the new discovery period set for November 30, 1994.  

          Furthermore, Appellants failed  to meet with  Appellees

pursuant  to  Local  Rule  311.11 to  discuss  Appellees'  timely

objections  to  their document  request --  as  set forth  in two

letters,  dated November 24, 1993, and December 15, 1993 -- prior

to the conclusion  of discovery on  January 3,  1994.  See  Local                                                                    

Rule 311.11.  Pursuant to this Rule, parties are required to meet

in a good  faith effort to eliminate disputes regarding discovery

prior to filing any discovery-related  motion or objection.   The

Rule also provides that, unless relieved by agreement or by order

of the court upon good cause  shown, counsel must meet within ten

days  of service of a letter requesting a Rule 311.11 conference,

and that Appellants  -- as the movants -- bore the responsibility

for arranging  a conference.  See  Local Rule 311.11.   Here, the                                           

record clearly  shows that Appellants  failed to comply  with the

Rule or carry their burden thereunder.  Not only is it undisputed

that  the parties' Local Rule  311.11 meeting was  not held until

February 1, 1994 --  more than two months after  Appellees' first

                                                  

5  In their first  motion for extension, dated October 11,  1993,
Appellants represented  to the court  that neither party  had yet
completed the  interrogatories but  that both parties  had worked
diligently in the matter. 

                               -9-

timely objection and more than one month after Appellees'  second

letter  which expressly  invited Appellants'  counsel to  meet on

December  27,  1993 --  but there  is  absolutely no  evidence of

timely notification to the court or of good cause for the failure

to meet earlier or to timely advise the court.  

          Moreover,  after  Appellees   filed  their  motion  for

summary judgment,  Appellants never  filed for another  discovery

extension prior to filing their opposition to summary judgment on                         

February 3, 1994.  As noted  above, it was not until the February

4 and February 10 pre-trial conferences  that Appellants informed

the district court of Appellees'  failure to produce documents --

almost one  month after the second-extended  discovery period had

concluded and the day after Appellants had filed their opposition

to summary judgment. 

          Attempting nonetheless  to invoke the benefits  of Rule

56(f), Appellants argue that  in order to trigger Rule  56(f) the

nonmoving  party  need  only  submit   an  equivalent  statement,

preferably in  writing, of  their need for  additional discovery.

See, e.g., St. Surin v. Virgin  Islands Daily News, Inc., 21 F.3d                                                                  

1309, 1313-14 (3d Cir. 1994); Wichita Falls Office Assoc. v. Banc                                                                           

One Corp.,  et al.,  978 F.2d  915, 919  (5th  Cir. 1992),  cert.                                                                           

denied, 508 U.S.  910 (1993).  Relying  on these two cases,  they                

insist that they triggered Rule 56(f), because "through the whole

procedure  of the case [they] presented in writing and before the

court  more than  plausible  basis to  believe that  discoverable

materials  existed which were  essential to their  case and would

                               -10-

raise  truthworthy issues."   Appellants' Brief,  p. 24.   Unlike

Appellants here, the  parties in those cases  both requested Rule

56(f)  extensions after  the  opposing party  filed a  motion for                                 

summary judgment, specified that discovery had not concluded, and

identified the  outstanding items  which would be  dispositive to

the issues  raised.  More  importantly, unlike the  instant case,

the  facts in those cases  indicated that the  nonmovants had not

been dilatory in obtaining discovery.   See St. Surin, 21 F.3d at                                                               

1315 (concluding that nonmovant should  not suffer from a failure

of proof caused by his accommodation of the movant's requests for

delay); Wichita  Falls, 978 F.2d  at 919 (finding  that nonmovant                                

was not dilatory because it reasonably awaited outcome of pending

negotiations).     In  any   event,  we  remain   unpersuaded  by

Appellants'  list of  the allegedly  numerous times  they brought

this  matter to the court's attention; in fact, their list belies

that they so informed the court.   For example, contrary to their

claim,  Appellants'  two-paragraph request  for  an  extension to

oppose   summary  judgment  makes   no  reference  whatsoever  to

discovery matters.  Similarly,  while Appellants claim that their

opposition to Appellee's motion for summary judgment "state[d] to

the Court the situation about the documents and  information that

defendants were refusing to provide," Appellants' Brief, p. 23, a

review of their opposition reveals no such statement.  

          In  light of  the  two extensions  granted, the  latter

stating that this was the final extension, Appellants' failure to

comply with  Local Rule  311.11, and  what  appears to  us as  an

                               -11-

overall lack of due diligence, we find no abuse of discretion  by

the district court.  Contrary to Appellants' assertion, in no way

did the  district court  grant summary judgment  "without [their]

benefit  to [sic] a reasonable  discovery."  Indeed, the district

court was  never put  in the  position of  granting a  Rule 56(f)

motion  given  that  Appellants  only informed  the  court  about

Appellees' failure  to produce discovery after  the conclusion of                                                        

discovery, after Appellants' oppositions  to summary judgment had                          

been filed, and on the eve of the pre-trial stage.

          For  obvious   reasons,  we  also  find   no  abuse  of

discretion  by the district court when it denied what was clearly

Appellants' untimely  motion to  compel document production.   We

remind Appellants that Local  Rule 311.11 expressly prohibits the

court from  entertaining any motion relating  to discovery unless

the  moving party -- here, Appellants -- first advised the court,

in  writing, that the parties  have been unable  to resolve their

differences or  reach an  agreement after counsel  have held  the

required conference,  or that counsel for  respondent has refused

to  confer or  delayed the  conference without  good cause.   See                                                                           

Local Rule  311.11.  The  first time Appellants  provided written

notification  was  on  February  9,  1994.    The court  informed

Appellants  during the  February 10,  1994, pre-trial  conference

that, had they timely filed a written motion to compel, the court

could  have  requested  the  documents  and  made  an  in  camera

inspection  of  them  to  assess  the  legitimacy  of  Appellees'

objections.  As the  district court correctly noted in  its order

                               -12-

denying  Appellants'  post-summary  judgment   motion  requesting

additional discovery and a new trial, Appellants waited more than

one  month  after  the  second extended  discovery  deadline  had

elapsed to  properly request  an order  from the district  court.

Appellants'  claim that  Appellees  were "hiding"  information is

essentially irrelevant  against the backdrop of their own lack of

diligence as evidenced by  the lateness of the Local  Rule 311.11

meeting and their untimely  motion to compel document production.

          In sum, based on our review  of the record, we find  no

abuse  of discretion by the district court with respect to either

of Appellants'  claimed errors;  indeed, in light  of Appellants'

lack of diligence and failure to follow the rules, we do not even

find   a  hint  of  any  abuse  of  the  district  court's  broad

discretion.   As we have stated before, "[s]ticking the appellate

nose  too readily  into the  district court's  scope-of-discovery

tent  is, we think,  a recipe for  disaster."  Mack,  871 F.2d at                                                             

187.    Where, as  here, the  district  court could  have allowed

further  discovery, "it was certainly  free to call  the shot the

other  way."  Id.  None of Appellants' arguments, including those                           

not addressed, persuade us that this record warrants a disruptive

"nosey" appearance.

                       B.  Summary Judgment                                 B.  Summary Judgment

                         1.  The Standard                                   1.  The Standard

      We afford plenary review  to the entry of  summary judgment

on Appellants' claims.   See, e.g., Perkins v. Brigham  &amp; Women's                                                                           

                               -13-

Hospital, 78 F.3d 747, 748 (1st Cir. 1996); Smith v. F.W. Morse &amp;                                                                           

Co., 76 F.3d 413, 428  (1st Cir. 1996).  The function  of summary            

judgment is "to pierce the boilerplate of the pleadings and assay

the  parties'  proof in  order  to  determine  whether  trial  is

actually required."  Wynne v. Tufts  Univ. Sch. of Med., 976 F.2d                                                                 

791, 794 (1st  Cir. 1992),  cert. denied, 507  U.S. 1030  (1993).                                                  

"The criteria are familiar:   a court may grant  summary judgment

if the nisi  prius roll  discloses no genuine  issue of  material                            

fact  and if,  viewing  the  entire  record  in  the  light  most

flattering  to  the  nonmovant,  the proponent  demonstrates  its

entitlement to judgment as a matter of law."  Perkins, 78 F.3d at                                                               

748; see Fed.  R. Civ. P. 56 (c).  In order to survive the "swing                  

of  the summary  judgment  axe,"  Mack,  871  F.2d  at  181,  the                                                

nonmoving  party  must produce  evidence  on  which a  reasonable

finder  of fact, under the appropriate proof burden, could base a

verdict for it; if  that party cannot produce such  evidence, the

motion  must be granted.  See  Celotex Corp. v. Catrett, 477 U.S.                                                                 

317, 323 (1986);  Anderson v.  Liberty Lobby, 477  U.S. 242,  249                                                      

(1986).   "The mere  existence  of some  alleged factual  dispute                                                 

between  the  parties  will  not  defeat  an  otherwise  properly

supported motion  for summary  judgment; the requirement  is that

there be no genuine issue of material  fact."  Anderson, 477 U.S.                                                                 

at 247-48  (emphasis in  original).  "[S]peculation  and surmise,

even  when  coupled  with  effervescent optimism  that  something

definite will  materialize further down the  line, are impuissant

in  the face of  a properly documented  summary judgment motion."

                               -14-

Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d 249, 253 (1st                                                    

Cir. 1996).   "Moreover, '[e]ven in cases  where elusive concepts

such  as motive or  intent are at issue,  summary judgment may be

appropriate if  the nonmoving party rests  merely upon conclusory

allegations,     improbable    inferences,     and    unsupported

speculation.'"  Goldman v.  First Nat'l Bank of Boston,  985 F.2d                                                                

1113, 1116 (1st Cir. 1993) (quoting Medina-Mu oz v. R.J. Reynolds                                                                           

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).                     

          Based  upon  our  independent  review  of  the  summary

judgment materials, we note as an initial matter that Appellants'

challenge  on appeal is augmented by its failure, as the district

court noted,  to present a  thorough and  specific opposition  to

Appellees'   well-documented   motion   for   summary   judgment.

Appellants' failure  to provide a separate  statement of disputed

facts  resulted  in the  district  court's  taking of  Appellees'

statement  of  uncontested facts  as  admitted.   See  Local Rule                                                               

311.12;  see  also  Stepanischen  v. Merchants  Despatch  Transp.                                                                           

Corp., 722 F.2d 922, 930 n.2 (1st Cir. 1983).  The district court              

also  properly  disregarded   Appellants'  numerous   unsupported

factual allegations.   These missteps below  accompany Appellants

on appeal, making their  challenge more of an uphill  battle than

it otherwise might  have been.   That  said, we  address each  of

their claims in turn.

                    2.  The Section 1981 Claim                              2.  The Section 1981 Claim

                             The Law                                       The Law

                               -15-

          In  order to  prevail under  Section 1981,  a plaintiff

must prove  purposeful employment  discrimination:   the ultimate

issue  is  whether   the  defendant  intentionally  discriminated

against  the  plaintiff,  under  the  by-now familiar  analytical

framework used in disparate treatment cases under Title VII.  See                                                                           

Patterson  v. McLean  Credit  Union, 491  U.S.  164, 186  (1989).                                             

Absent   direct   evidence   of  race   and/or   national  origin

discrimination,  the  burden-shifting  framework  established  in

McDonnell  Douglas Co.  v. Green,  411 U.S.  792, 802-05  (1973),                                          

comes into play.  See St. Mary's Honor Center v.  Hicks, 509 U.S.                                                                 

502, 505-07, (1993);  Patterson v. McLean Credit  Union, 491 U.S.                                                                 

164, 109 (1989); Goldman, 985 F.2d at 1116-17.                                  

          Under  the McDonnell  Douglas  framework,  a  plaintiff                                                 

first  must  make  a   prima  facie  showing  of  discrimination,                                             

established  by proving:   (i)  that plaintiff is  a member  of a

protected class; (ii)  that plaintiff  performed his  or her  job

satisfactorily;  (iii)  that plaintiff  was discharged;  and (iv)

that plaintiff's position remained open and was eventually filled

by  persons with  plaintiff's qualifications.   St.  Mary's Honor                                                                           

Center,  509 U.S. at 506.  A plaintiff's successful production of                

a  prima facie case creates a presumption of discrimination.  Id.                                                                           

Upon  such  a showing,  the burden  of  production shifts  to the

defendant in order to show a legitimate, nondiscriminatory reason

for  plaintiff's  termination.     Id.    If  the  defendant   is                                                

successful, the plaintiff must  then show that defendant's reason

is   merely   pretextual   and   that   defendant   intentionally

                               -16-

discriminated against him or her.  Id. at 507.  In the context of                                                

a summary  judgment proceeding,  once the employer  articulates a

legitimate,  nondiscriminatory basis  for its  adverse employment

decision, the  plaintiff must  offer direct or  indirect evidence

sufficient to show that the employer's decision  to discharge him

or her  was wrongfully based  on race  or national  origin.   See                                                                           

e.g.,  Pages-Cahue v. Iberia Airlines of Spain, 82 F.3d 533, 536-                                                        

37  (1st   Cir.  1996)   (involving  age   discrimination  claim)

(collecting cases).

          The  McDonnell Douglas  framework, however,  only comes                                          

into play  where there is  no direct evidence  of discrimination.

In cases involving direct  evidence of discriminatory motive, the

burden of persuasion  shifts from the  employee to the  employer,

who must then  affirmatively prove  that it would  have made  the

same   decision  even   if  it   had  not  taken   the  protected

characteristic into account.   See  e.g., Smith v.  F.W. Morse  &amp;                                                                           

Co.,Inc., 76 F.3d  413, 421 (1st Cir. 1996)  (citations omitted).                  

While  we have held that "[d]irect evidence is evidence which, in

and of itself, shows a discriminatory animus," see, e.g., Jackson                                                                           

v. Harvard  Univ., 900 F.2d 464,  467 (1st Cir. 1990),  it is not                           

always clear what constitutes direct evidence, see Smith, 76 F.3d                                                                  

at 421;  id. at  431 (Bownes,  Senior Circuit Judge,  concurring)                      

(noting  that the  majority reference  to "smoking  gun" evidence

obscures the fact  that this  Circuit has yet  to clearly  define

what constitutes direct evidence of gender discrimination). 

                               -17-

          As far as the instant case is concerned, however, we do

know that, at a  minimum, direct evidence does not  include stray

remarks   in   the   workplace,   particularly  those   made   by

nondecisionmakers  or statements made by decisionmakers unrelated

to  the  decisional  process  itself.   See  Price  Waterhouse v.                                                                        

Hopkins, 490 U.S. 228, 251-52 (1989) (plurality op.); id. at 277-                                                                   

78 (O'Connor, J., concurring); Smith, 76  F.3d at 433 (concurring                                              

opinion).    While  perhaps probative  of  discrimination,  stray

remarks  do   not  satisfy   a  plaintiff's  burden   of  proving

discrimination by direct evidence.  Price Waterhouse, 490 U.S. at                                                              

277 (O'Connor, J. concurring).   In our view, such  stray remarks

lack   the  necessary   link   between  the   alleged   speaker's

discriminatory remark  and the adverse employment  decision.  Cf.                                                                          

Smith,  76  F.3d  at  421  (suggesting  that direct  evidence  of               

employment discrimination based on  gender would be "an admission

by the employer  that it  explicitly took  actual or  anticipated

pregnancy into account in reaching an employment decision").

          With  the  legal framework  outlined,  we  turn to  see

whether Appellants  can avoid the "swing of  the summary judgment

axe,"  Mack, 871  F.2d at  181, mindful  that a  district court's                     

grant  of summary judgment against the employee will be upheld if

the  record  is  devoid  of  adequate  direct  or  circumstantial

evidence of the employer's discriminatory intent.

                             Analysis                                       Analysis

          In  the  instant  case,  the  district  court  rejected

Appellants'  contention  that  they  proved  by  direct  evidence

                               -18-

Appellees' discriminatory animus in terminating their employment.

It  focused on two remarks, disregarding others on the basis that

they were  not  substantiated.    We, too,  follow  the  district

court's  steps  and   will  focus  only   on  the  two   properly

substantiated remarks.6  The summary judgment materials show that

the two remarks upon which Appellants rely were made  on or about

the date of Appellants' respective dismissals.   The first remark

pointed to was allegedly made by Hackett, in which he stated that

the company had  a "black mafia  [which was] getting rich  at the

expense  of the company."   Deposition of Serrano,  p. 125, lines

21-23.  The second was allegedly made by both Hackett and Geraci,

in which they  stated that Serrano, as a  Puerto Rican, may never

get another opportunity to  work for a North American  company if

Serrano were to be fired by SMI.  Id. at 86, lines 13-21.                                                

          As   we   understand   Appellants'    arguments,   they

essentially claim that the  references to a "black mafia"  and to

their being Puerto Rican are "smoking gun" evidence of Appellees'

discriminatory animus in terminating  their employment.  For this

to be  so, Appellants must demonstrate that  "black mafia" refers

                                                  

6   We decline Appellants' request to take into consideration the
sworn statements submitted with their motion for reconsideration.
Not  only were  they not  part of  the original  summary judgment
materials,  but Appellants  have  not demonstrated  why this  new
evidence  could not  have been timely  provided with  the summary
judgment materials.  See  Roche v. John Hancock Mutual  Life Ins.                                                                           
Co., 81 F.3d 249, 253 (1st Cir. 1996) ("Put bluntly, 'motions for             
summary judgment must be decided on the record  as it stands, not
on  a litigant's  visions  of  what  the  facts  might  some  day
reveal.'")  (quoting  Maldonado-Denis  v. Castillo-Rodr guez,  23                                                                      
F.3d 576, 581 (1st Cir. 1994)). 

                               -19-

to  Appellants'  racial  or  ethnic  background  and  that  these

references were made in connection with the decisional process.  

          We turn first to the  meaning of "black mafia."  As  an

initial matter, we note that the record sheds little light on its

meaning, and does not demonstrate that it has anything to do with

Appellants' racial  or ethnic background.7  In fact, when pressed

during oral  argument, counsel for Appellants  simply stated that

he  "gathered"  it  referred to  Puerto  Ricans.    The very  few

references to  "black mafia"  pointed to  by Appellants  in their

opposition  to  summary  judgment  suggest   that  "black  mafia"

referred to,  as Appellant  Serrano testified in  his deposition,

members of SMI's management "who were getting rich at the expense

of the company, at [BMSC's] expense"; indeed, Serrano's testimony

that the "['black mafia'] was made up by  all the managers" seems

to undercut  Appellants' claim  that Appellees were  referring to

them as members  of a "black  mafia."  Id.  at 125, lines  23-24.                                                    

Based  on the record,  we are hard-pressed  to conclude Appellees

were referring  to Appellants with a  discriminatory animus based

on their race or national origin. 

                                                  

7  In this regard, we note that use of the adjective "black" does
not necessarily refer to skin color.   It has been widely used to
describe,  among  other  things,  sinister  or  evil  actions  or
characters.  See  Merriam Webster's Collegiate  Dictionary, Tenth                                                                    
Ed.,  pp.  118-20 (1993).   "Mafia"  is  defined as  a particular
"criminal  organization" or  "a group  of people  likened to  the
Mafia,"  id.  at 699.    Taken together,  "black"  could arguably                      
describe the collective skin color of the members of the criminal
organization  or  the  group's  illegal,  illicit  or clandestine
activities in a similar vein to "black market."

                               -20-

          While  we could end the inquiry here, we note that even

assuming that the  term "black mafia" was  racially or ethnically

charged, neither of these statements  constitutes direct evidence

of discrimination.    While  the close  time  frame  between  the

interviews and the dismissals is  suspicious, see Smith, 76  F.3d                                                                 

at  423 (noting  temporal  proximity as  a  factor); id.  at  432                                                                  

(citing  cases),  Appellants  have  not demonstrated  --  as  the

district  court noted  -- that  they  were terminated  because of

their  race  or  national  origin   or  that  the  speakers  were

decisionmakers  who  made the  comments  in  connection with  the

decisional process.  Indeed, Hackett  and Geraci are employees of

BMSC,  not  SMI,  and  it  is  uncontested  that Appellants  were

employees of SMI at the time of their dismissals.

          Even assuming, as Appellants  allege, that Hackett  and

Geraci  ordered  SMI's  Human  Resources  Director  to  terminate

Appellants'  employment does  not assist  Appellants, because  of

their  failure  to  provide  specific factual  support  that  the

alleged  remarks  were made  in  connection  with the  employment

decisional   process.     Resting   on   conclusory  allegations,

improbable  inferences  and  unsupported  speculation   does  not

suffice.    See Goldman,  985  F.2d  at 1116.    In other  words,                                 

Appellants  have  failed  to show  what  we  consider  to be  the

necessary link between the  speakers' statements and the decision

to  terminate  Appellants'   employment.     Our  conclusion   is

particularly  reinforced by the  uncontested fact that Appellants

did  not mention their race  or national origin  as a factor when

                               -21-

asked  why they  thought  their employment  had been  terminated:

some  admitted that  they had  no knowledge  of the  reason while

others offered the non-discriminatory reason that their dismissal

was connected to the ongoing security investigation.8 

          For  the foregoing reasons,  we find no  reason on this

record to consider these  alleged statements to be anything  more

than "stray remarks" which fail to  satisfy Appellants' burden of

production of direct evidence.  We  merely add this:  contrary to

what seems to drive  Appellants' argument, the mere fact  that it

is  possible, indeed  probable,  that there  was some  connection

between Appellants' dismissal and the security investigation does

not render Appellants' termination ipso facto discriminatory.                                                       

          Because  we  conclude that  Appellants  have failed  to

demonstrate discriminatory animus by direct evidence, we consider

next whether Appellants  can do  so through a  prima facie  case.                                                                    

This analysis is,  for Appellants, painfully  quick:  While  they

satisfy the  first and third  prongs, as  they are  members of  a

protected class  as Puerto Ricans  and they were  all terminated,

they have not proven that they performed their jobs adequately or

that   persons  with   their  qualifications  filled   their  job

positions;  indeed, they  do  not even  argue  as much  in  their

appellate brief.   In light  of their  failure to  prove a  prima                                                                           

                                                  

8  It  is also uncontested that Appellants were  not present when
the decision to terminate their  employment was made.  We do  not
give  this  fact  much  weight  considering  that  an  employee's
presence  at that actual moment  is more likely  to be an anomaly
than the rule. 

                               -22-

facie case, we do not need to proceed further with the  McDonnell                                                                           

Douglas analysis.                  

          In light  of Appellants' failure to  carry the ultimate

burden of  proving that  Appellees discriminated against  them on

the basis of  their race or national origin, we  affirm the grant

of summary judgment,  pausing only  to add this:   The  foregoing

and, particularly,  the plethora of allegations  unclothed by any

specific factual record evidence,  suggest to us that Appellants'

claims of  discrimination based on  race and national  origin are

but mere "unsupported conclusions . .  . [which plausibly] . .  .

sprout[ed] as  easily as  crabgrass in an  imaginative litigant's

(or lawyer's) word processor."  The Dartmouth Review v. Dartmouth                                                                           

College,  889 F.2d 13, 16 (1st Cir.  1989) (noting that "to avoid                 

tarring defendants'  reputation unfairly and to prevent potential

abuses, we have consistently required plaintiffs to outline facts

sufficient   to   convey    specific   instances   of    unlawful

discrimination.").

                     2.  The Defamation Claim                               2.  The Defamation Claim

          Appellants claim damages from defamation based on  four

incidents:   (i)  alleged public  and intraoffice  accusations by

Appellees that Appellants were  thieves; (ii) newspaper  articles

which discussed, among other matters, the irregularities in SMI's

inventory;  (iii)   the  interviews  in  which   Appellants  were

questioned while  a third party,  a translator, was  present; and

(iv)  statements  labeling  Appellants  as members  of  a  "black

mafia."    The  district  court  thoroughly  reviewed Appellants'

                               -23-

arguments in support of  their claim, concluding that in  each of

the  four instances  Appellants --  for a  variety of  reasons --

failed to meet their burden of proving defamation.  We agree.

          "Under Puerto  Rico  law, a  defamation claim  requires

that  the plaintiff prove: (1) that the information is false, (2)

that plaintiff  suffered real damages,  and (3) in the  case of a

private figure  plaintiff, that  the publication was  negligent."

Mojica  Escobar  v.  Roca, 926  F.  Supp.  30,  33 (D.P.R.  1996)                                   

(citations omitted);  see also  Pages v.  Feingold, 928  F. Supp.                                                            

148,  153 (D.P.R.  1996)  (noting that  negligence in  defamation

cases is applied as  interpreted under Section 1802 of  the Civil

Code,  31 L.P.R.A.   5141); Garib Baz n v. Clavell, 94 J.T.S. 36,                                                            

p. 11677 (1994).   For  both libel and  slander, Puerto Rico  law

requires  that plaintiff  prove  that the  alleged defamation  is

false.   See 32 L.P.R.A.    3142 (defining  libel); 32 L.P.R.A.                        

3143 (defining slander); see  also  Mojica Escobar, 926  F. Supp.                                                            

at 34; Villanueva v.  Hern ndez Class, 91 J.T.S. 58,  pp. 8696-97                                               

(1991).

          Here,  what undercuts Appellants' defamation claim with

respect  to the first three instances is their failure to present

a single shred of competent evidence, as distinguished from their

conclusory assertions,  which tends  to establish the  falsity of

any  of  the  alleged  defamatory statements.    Because  of this

failure to carry their burden of proof as to the falsity of those

three statements, Appellants' defamation claim for both libel and

slander  based on  the first  three instances  necessarily fails.

                               -24-

See Mojica Escobar, 926 F. Supp. at 34 (granting summary judgment                            

based on plaintiff's  failure to carry burden  of proving falsity

of offending publications).   Based on our review of  the record,

Appellants have  utterly failed  to carry their  summary judgment

burden  of  presenting  definite,  competent  evidence  to  rebut

Appellees' motion  for summary  judgment:   they  have failed  to

establish  the existence  of  a genuine,  material triable  issue

regarding the falsity of  the alleged statements.  The  fact that

Appellees  do not assert the  truth of the  alleged statements is

irrelevant  here  as  Appellants  have  failed  to  establish  an

essential element of their claim.  Cf. id.  In light of this,  we                                                    

do  not need to address the remaining elements in connection with

the first three instances.

          As to the fourth instance, regarding the "black mafia,"

the district court correctly dismissed this statement as proof of

defamation  in  light  of  (i)  Appellants'  failure  to  provide

affidavits or deposition testimony supporting this allegation and

(ii)  the  fact  that,  while Appellant  Serrano  testified  that

Appellee Hackett  referred to a "black mafia,"  the reference was

not  made in connection to Appellants but, as discussed above, in

reference to SMI's management.

          Because we  do not  need to address  whether Appellants

carried  their burden  as to  the remaining  elements, we  do not

address their argument challenging  the district court's grant of

qualified immunity relating to the interviews in which Appellants

were  questioned.   See Porto  v. Bentley  Puerto Rico,  Inc., 92                                                                       

                               -25-

J.T.S.  175,  10248  (1992)  (adopting  the  majority  rule  that

intracorporate  communication is equivalent  to publication while               

also  recognizing qualified immunity).   We only add  this:  Even

assuming that Appellants had  submitted evidence that the alleged

defamatory  statements were false,  based upon our  review of the

summary judgment  materials and  Appellants'  arguments we  would

nonetheless conclude that their defamation claim fails and, thus,

would affirm the district court's grant of summary judgment.  

          Finally, Appellants also allege that the district court

erred because there was sufficient evidence of a conspiracy under

Puerto Rico law on the part of  Appellees "to falsely accuse them

of being thieves and drug dealers."  See 33 L.P.R.A.    4523(2)9;                                                  

see  also  People v.  Arreche Holdun,  114  P.R. Dec.  99 (1988).                                              

According to  Appellants, the BMSC officials  named as defendants

in the action below came to Puerto Rico "with the task of framing

and fabricating evidence  to dismiss SMI  officials so that  BMSC

could control key  positions."  For support, Appellants  point us

to their March 28,  1994, motion requesting additional discovery.

As an initial matter, we note that Appellants neither included in

their  complaint a  cause of  action for  conspiracy nor  did the
                                                  

9  This section provides, in pertinent part:

               If two or more  persons conspire . . .
            (2)  to  falsely  or  maliciously  accuse
            another   person  of  any  crime,  or  to
            attempt  that another  to  be charged  or
            arrested for  any crime;  . . .  shall be
            punished  by imprisonment  . .  . ,  or a
            fine . . . .

L.P.R.A. T.33   4523(2).

                               -26-

district court  explicitly address  conspiracy.   Possible waiver

aside,  we decline to consider  their March 28,  1994, motion for

the simple reason that this was not part  of the summary judgment

record.  What  is more, based  on our own  review of the  summary

judgment  materials,  we  find  no  record  evidence  to  support

Appellants'  naked assertion that Appellees framed false evidence

against  Appellants.   While  their  supplemental  opposition  to

summary judgment  includes documents with references  to a "gang"

and a "mafia"  and to the  stealing of inventory  from SMI,  this

does not prove there was a conspiracy.  We need not consider this

argument further. 

                3.  The Invasion of Privacy Claim                          3.  The Invasion of Privacy Claim

          Appellants   also  seek  damages  based  on  Appellees'

alleged violation of their right to privacy under the Puerto Rico

Constitution, claiming  that they were followed,  telephoned, and

photographed without  their permission and put  on an "industrial

blacklist"  which  has hindered  their  efforts  at securing  new

employment.   A claim for invasion of privacy is actionable under

Sections 1 and  8 of Article II of the  Puerto Rico Constitution,

which,  respectively, provide  that "[t]he  dignity of  the human

being  is inviolable" and that  "[e]very person has  the right to

the  protection  of law  against  abusive attacks  on  his honor,

reputation and private  or family life."  P.R.  Const. art II,   

1,  8;  see generally,  Mojica Escobar,  926  F. Supp.  at 34-35;                                                

L pez-Pacheco  v.  United  States,  627 F.  Supp.  1224,  1227-29                                           

(D.P.R. 1986), aff'd, 815 F.2d 692 (1st Cir. 1987).  The district                              

                               -27-

court  granted  summary  judgment  on the  basis  of  Appellants'

failure to provide  any evidence that their  privacy was invaded.

Appellants  do not explicitly appeal this  aspect of the district

court's decision.   Waiver aside, we nonetheless note that, based

upon our independent review of the record, we affirm the district

court's  grant  of  summary judgment  for  the  very  same reason

enunciated by the district court.  

              4.  Breach of the Employment Contract                        4.  Breach of the Employment Contract

          Appellants  argue on  appeal  that  the district  court

erred in dismissing their claim that BMSC violated the employment

contract  between SMI  and Appellants  inasmuch as  BMSC did  not

comply  with provisions in the Employee's  Manual when it ordered

SMI  to terminate Appellants' employment.   See Santiago v. Kodak                                                                           

Caribbean,  92  J.T.S. 11,  9164  (1992)  (holding that  employee                   

manuals describing  rights and privileges constitute  part of the

employment contract and that  dismissals in violation thereof are

unjustified).10  

          The  court dismissed  their claim  on the  grounds that

Appellants had failed to join an indispensable party, SMI,  whose

                                                  

10  Relying on Santiago, Appellants contend  that their dismissal                                 
was  unjustified  because (i)  they did  not  violate any  of the
listed  violations  and  (ii)  BMSC ordered  their  dismissal  in
violation of the established procedures.   They also contend that
BMSC violated its "Involuntary Termination Plan Policy" according
to which any officer  or employee dismissed up to  December 1992,
as a  result of  the merger  would  be paid  a certain  severance
amount. 

                               -28-

joinder  would  destroy  the  court's  diversity  jurisdiction.11

Although Appellants argued that SMI was not indispensable because

SMI officers acted at  the direction of BMSC, the  district court

noted  that their claim was inherently based on the fact that SMI

officers breached the employment contract when terminating  their

employment.  Citing  Fed. R.  Civ. P. 19(b),  it concluded  that,

because  SMI officers were thus actors in the alleged breach, SMI

was  an indispensable party.  Noting its earlier factual finding,

set forth in its decision granting partial summary judgment, that

SMI is  a separate  entity from BMSC  and that it  was undisputed

that SMI and  Appellants are  both citizens of  Puerto Rico,  the

court  concluded that  SMI's  joinder would  result in  the court

lacking diversity  jurisdiction.   In reaching its  decision, the

district  court also  noted  that Appellants  could always  bring

their breach of contract claim in the Commonwealth courts.  

          Appellants  argue on  appeal  that  the district  court

erred in concluding  that there was no diversity  jurisdiction in

only the briefest of manners,  providing only one short paragraph

without citation to case  law or to  Fed. R. Civ.  P. 19.   Apart

from reiterating that SMI is  a subsidiary under BMSC's "complete

control"  and  that  BMSC  is  a  Delaware  corporation with  its

principal place  of  business  in New  York,  Appellants  do  not

otherwise challenge or explain the error of  the district court's

earlier factual  finding based on the  summary judgment materials
                                                  

11  Having previously dismissed the federal claims,  the district
court noted  that its  jurisdiction over the  breach of  contract
claim was based on the diversity of the parties' citizenship.

                               -29-

that  SMI  is  a separate  company  from BMSC.    In  a similarly

superficial manner,  Appellants merely reiterate that  SMI is not

an indispensable party because the injury and damages were caused

by  BMSC,  providing no  adequate  basis for  concluding  why the

district  court erred  in concluding  that SMI,  an actor  in the

alleged breach, was an indispensable party.

          The weakness of Appellants'  arguments here leads us to

find waiver.  See  e.g., McCoy v. Massachusetts Inst.  of Techn.,                                                                          

950  F.2d  13, 23  (1st Cir.  1991)  (finding waiver  where party

failed to  meet affirmative responsibility of  putting "best foot

forward  in  an effort  to present  some  legal theory  that will

support [its] claim"), cert. denied, 504 U.S. 910  (1992); United                                                                           

States  v. Zannino, 895 F.2d  1, 17 (1st  Cir.) (reiterating that                            

"issues  adverted to  in a  perfunctory manner,  unaccompanied by

some  effort at  developed argumentation,  are deemed  waived."),

cert.  denied, 494  U.S.  1082  (1990).    Indeed,  in  light  of                       

Appellants'  failure to  even mention  Rule  19, let  alone claim

error thereunder, we see no  reason why we should embark  on Rule

19's indispensable  party analysis,  see  Fed. R.  Civ. P.  19(b)                                                  

(enumerating  factors to  be considered  to determine  whether in

equity and  good conscience courts should  proceed without absent

party when joinder  would deprive the court of jurisdiction); see                                                                           

also,  Pujol v.  Shearson/American Express,  Inc., 877  F.2d 132,                                                           

134-138   (1st  Cir.   1989)   (discussing  indispensable   party

analysis), and explore arguments on their  behalf, see McCoy, 950                                                                      

                               -30-

F.2d at 22 ("Overburdened  trial judges cannot be expected  to be

mind readers.").

          We  agree  with the  district  court  that inherent  in

Appellants' claim is  that SMI  officers were the  actors in  the

alleged  breach:    while  BMSC may  have  "ordered"  Appellants'

dismissal,  it  was SMI  officers that  did  not comply  with the

dismissal  provisions set forth in the Employee Manual.  In light

of this and the two  undisputed facts that SMI (i) is  a separate

legal entity from BMSC  and (ii) was Appellants' employer  at the

time of their  dismissal, we conclude  that Appellants' cause  of

action for severance pay could not be brought against BMSC as any

claim arising  under the employment  contract between  Appellants

and SMI should have been brought against SMI.  Furthermore, while

Appellants may not have their day in federal  court, they are not                                                      

--  contrary  to their  assertions --  deprived  of their  day in

court:  Because the applicable statute  of limitations was tolled

by  Appellants' filing of their  action in federal  court, see 31                                                                        

L.P.R.A.   5303,  Appellants will  be able to  file their  claims

based  on breach  of the  employment contract,  as well  as other

claims, in the Commonwealth court. 

                            CONCLUSION                                      CONCLUSION                                                

          Without  commenting on  the  propriety  of  Appellants'

dismissals  or  the  manner  in which  they  were  dismissed, the

district court's decision is affirmed for the foregoing reasons.                                       affirmed                                               

                               -31-
