
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2050                                    ROSSY COYANTE,                                Plaintiff - Appellant,                                          v.                         PUERTO RICO PORTS AUTHORITY, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                     Coffin and Campbell, Senior Circuit Judges,                                          _____________________                         and DiClerico, Jr.,* District Judge.                                              ______________                                _____________________               Antonio Jim nez-Miranda for appellant.               _______________________               Raymond P.  Burgos, with  whom Pinto-Lugo  &  Rivera was  on               __________________             _____________________          brief for appellee Puerto Rico Ports Authority; Roberto  M rquez-                                                          _________________          S nchez  with whom  Law Offices  of Benjam n  Acosta, Jr.  was on          _______             _____________________________________          brief for appellee Mangual Maintenance Services, Inc.                                 ____________________                                   January 23, 1997                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    DICLERICO, Chief District Judge.   The plaintiff, Rossy                    DICLERICO, Chief District Judge.                               ____________________          Coyante, filed  a complaint  against the defendants,  Puerto Rico          Ports  Authority  ( Ports  Authority )  and  Mangual  Maintenance          Services, Inc.  ( Mangual ), seeking  damages she claims  to have          suffered  as a result of slipping and falling on certain premises          allegedly owned  or controlled by the defendants.  Following nine          days  of  testimony  at  trial,  the  plaintiff  rested  and  the          defendants moved  for judgment as a  matter of law under  Fed. R.          Civ.  P.  50(a) asserting  that  the  plaintiff had  produced  no          evidence to establish that the defendants owned or controlled the          area  where the plaintiff slipped  and fell.   The district court          agreed  with  the  defendants  and, finding  that  ownership  and          control were necessary elements  of the plaintiff s case, entered          a judgment against her.  In this appeal, the plaintiff challenges          the district  court s ruling on the defendants  motion under Fed.          R. Civ. P. 50(a) and several other rulings made during the course          of  the litigation.  For  the reasons expressed  below, we affirm          the district court s judgment.                          Factual and Procedural Background                          Factual and Procedural Background                          _________________________________                    On  July  24, 1990,  the  plaintiff  slipped and  fell,          suffering    personal   injury   after   disembarking   from   an          international  flight  at  the  Luis  Mu oz  Mar n  International          Airport in San Juan, Puerto Rico.   On January 3, 1991, she filed                                         -2-          suit against  the defendants,  Ports Authority and  Mangual,1 for          negligently  failing to  make  safe a  dangerous condition  about          which they knew or should have known.2  The plaintiff claimed she          suffered  damages arising not only  from the accident itself, but          also from the pain she suffered and medical expenses she incurred          when she  became addicted  to and  went  through withdrawal  from          prescription medications she was taking because of the accident.                    On March 30, 1993,  the district court, after resolving          an initial  challenge to its jurisdiction,  granted the plaintiff          leave to amend her complaint and ordered the defendants to answer          the amended complaint   on or before April  12, 1993.   On  March          31, 1993, the plaintiff  resubmitted her amended complaint (first          submitted on February 25, 1992) but the defendants did not answer          by April  12  as required  by the  court s order.   However,  the          plaintiff  did not  bring this  failure to the  court s attention          until more than two years later.                    On  December  16, 1993,  the  district  court issued  a          pretrial conference report requiring the parties to submit a list          of uncontested facts.   The parties agreed to a   Joint Statement          of Uncontested  Material  Facts  to  Supplement  Pretrial  Order           ( joint statement ) on December 17, 1993.  The plaintiff attaches                                        ____________________          1  Mangual is a janitorial company with which the Ports Authority          has contracted.          2   Coyante brought a  separate action  asserting similar  claims          against L nea Aeropostal Venezolana, the airline on which she had          traveled.  On June 22, 1992, the two cases were consolidated.  On          January 25,  1994, the  plaintiff and  the airline  settled their          dispute, leaving as defendants only Ports Authority and Mangual.                                         -3-          particular significance to the  following provisions of the joint          statement:                      7.  On July 24,  1990, co-defendant Mangual                    provided  janitorial  services  at  the  Luis                    Mu oz Mar n International Airport pursuant to                    a  contract   with  the  Puerto   Rico  Ports                    Authority.                      8.  On July 24, 1990, the Puerto Rico Ports                    Authority  owned and operated  the Luis Mu oz                    Mar n International Airport.          However,  the  plaintiff alleges  that she  did  not know  of the          existence of this document until after she filed her appeal.                      On  February  9,  1994,  the   plaintiff  attempted  to          supplement  her list  of expert  witnesses with  a loss-of-income          expert.3   On  June 9,  1995,  the court  denied  her request  to          include this expert as a witness without articulating the reasons          for its denial.                    On December  12, 1994,  the court entered  a scheduling          order requiring discovery to be concluded  by April 20, 1995.  On          February  22,  1995, the  plaintiff  fired  her  counsel and,  on          February 27,  1995, filed a pro se motion so informing the court.          On  March 16, 1995, the court held  a status conference.  At that          conference, the court  granted a motion filed  by the plaintiff s          counsel to  withdraw from the  case and  for scheduling  purposes          asked counsel whether further discovery was pending at that time.                                        ____________________          3  The plaintiff also attempted to add other witnesses  who would          have bolstered her case on the issue of damages.  We focus on the          district  court s ruling on the loss-of-income expert because the          issues involved are identical.                                         -4-          Counsel informed the court that no further discovery was pending,          and the court let stand its April 20, 1995, discovery deadline.                    On  March 23,  1995,  current counsel  appeared on  the          plaintiff s behalf.4  The file he received from prior counsel was          reportedly  in  disarray and  reflected  that  the plaintiff  had          undertaken  no discovery of the  defendants.  On  April 19, 1995,          one day before the   deadline set for discovery to  be completed,          the plaintiff moved to  extend the discovery deadline and  take a          deposition.  This motion was denied by the court on May 24, 1995.                    On June 9, 1995, the plaintiff moved to supplement  the          pretrial order issued on December 17, 1993, to reflect subsequent          changes in  her case.   The same day,  the court held  a pretrial          conference  and ruled  that it  would use  without  amendment the          December 17, 1993, pretrial  order, that the plaintiff s loss-of-          income  expert would  not  be allowed  to  testify, and  that  no          further discovery would be allowed.                     In  July 1995,  after  four and  one-half years,  trial          appeared  imminent.    However,   three  days  before  trial  the          plaintiff submitted  a motion requesting that  default be entered          against the  defendants for their  failure to answer  her amended          complaint.  The  district court did not rule on this motion until          August 3, 1995, after the conclusion of  the trial, at which time          it declared the motion moot.                                        ____________________          4  The plaintiff s counsel at trial and on appeal was the seventh          lawyer to  appear for  her in this  litigation, not  counting her          brief  pro se appearance.   Prior lawyers were  fired or left the          plaintiff s  employ   for   such   reasons   as    irreconcilable          differences  and  loss of confidence.                                          -5-                    At   trial,   the  plaintiff s   case   focused  almost          exclusively on her damages  resulting from the fall.   Beyond her          own testimony,  she produced  only one occurrence  witness, Mirta          Silva,  to describe the scene of the accident.  The two witnesses          provided a detailed description both of the scene of the accident          and  of how the accident  occurred.5  However,  neither Silva nor          the plaintiff  identified specifically  where within the  airport          the  accident occurred.  There  was no testimony  about what gate          the flight used, which hallway  the passengers traveled, or where          customs was  located.   No testimony specifically  identified the          location  of  the  accident  within the  larger  context  of  the          airport.6    No  testimony  connected  either  defendant  to  the          location where the accident occurred or established what duty, if          any,  the defendants owed to  the plaintiff to  make the location          safe.   In fact, at  trial the plaintiff  made little mention  of          defendant  Ports  Authority  and  produced no  testimony  at  all          mentioning defendant Mangual.                    At  the close  of  the plaintiff s  nine-day case,  the          defendants moved  for judgment as a  matter of law under  Fed. R.          Civ.  P. 50(a), alleging that the plaintiff had not presented any                                        ____________________          5  The  accident occurred in a  hallway which connected the  area          where the passengers left the airplane with  an adjoining customs          area.  A pool of water, which apparently formed due to a crack in          the ceiling,  covered almost the  entire width of the  hallway in          front  of  the  door  to  customs.    The  plaintiff  fell  while          attempting to traverse the pool.          6  For example, an employee connected with the airport prepared a          report  about the  accident shortly  after it  happened  that was          presented at trial but the  report failed to specify the location          of the accident.                                         -6-          evidence from which it could be found that the defendants were in          control of and responsible for maintaining the location where the          accident occurred.  The district court granted the motion.                    On  September 1, 1995, the  plaintiff filed a notice of          appeal  from  the  district  court s  Rule  50(a) decision.    In          connection with her appeal, the plaintiff requested a copy of the          file from the  district court  clerk and upon  inspection of  the          file allegedly discovered for the first time the joint statement.          The plaintiff  had not mentioned  the joint statement  during the          presentation  of  evidence  in  her  case  or  when  opposing the          defendants  Rule 50(a) motion.                                      Discussion                                      Discussion                                      __________                    The plaintiff on appeal has assigned as  error a number          of  decisions by  the district  court during  the course  of this          litigation.                     A.  Rule 50(a) Decision                    A.  Rule 50(a) Decision                    _______________________                    The   plaintiff  contends   that  the   district  court          improperly dismissed her case  under Fed. R. Civ. P.  Rule 50(a).          Rule 50(a)(1) states:                    If during  a trial by  jury a party  has been                    fully  heard  on an  issue  and  there is  no                    legally  sufficient  evidentiary basis  for a                    reasonable  jury to  find  for that  party on                    that issue, the court may determine the issue                    against that party and may grant a motion for                    judgment  as  a matter  of  law  against that                    party with respect to a claim or defense that                    cannot   under   the   controlling   law   be                    maintained  or  defeated without  a favorable                    finding on that issue.                                         -7-          We review the grant of a Rule 50(a) motion de novo.  Katz v. City                                                     _______   ____    ____          Metal  Co., 87 F.3d 26, 28 (1st  Cir. 1996); Andrade v. Jamestown          __________                                   _______    _________          Hous. Auth., 82 F.3d 1179, 1186 (1st Cir. 1996).  In doing so, we          ___________          use the same standards as the district court, considering all the          evidence and inferences  reasonably to  be drawn from  it in  the          light most  favorable to the  non-movant.  Katz,  87 F.3d  at 28;                                                     ____          Andrade, 82 F.3d at  1186.  However,  [t]o warrant  submission of          _______          an issue  to the jury,  the plaintiff  must present  more  than a          mere scintilla  of  evidence and  may not rely  on conjecture  or          speculation.    Katz, 87 F.3d at 28 (quoting Richmond Steel, Inc.                          ____                         ____________________          v. Puerto Rican  American Ins.  Co., 954  F.2d 19,  22 (1st  Cir.             ________________________________          1992)).                    The plaintiff s attack on the trial court s decision to          enter  judgment against her  as a  matter of  law centers  on two          factors  that  she  claims   bolster  the  minimal  evidence  she          presented:   the joint statement and the knowledge of the jurors.          According to the plaintiff, either factor, when combined with the          testimony about the  location of the accident,  was sufficient to          allow  the jurors  to make an  inference in  her favor  as to the          ownership and control of the area.                               1.  The Joint Statement                               1.  The Joint Statement                               _______________________                    The plaintiff  argues that  the joint  statement should          have been considered as  part of her  case, and contends that  it          was  sufficient  to  establish  that Ports  Authority  owned  and          Mangual maintained the  area of  the airport  where the  accident          occurred. However, the plaintiff s  argument suffers from a fatal                                         -8-          defect,  namely, the  joint statement  was never  introduced into          evidence.7    It  is a  basic  tenet  of trial  procedure  that a          stipulation concerning uncontested facts must  be introduced into          evidence  by the  party who intends  to rely  on it  in order for          those facts  to be considered by the trier of fact, whether it be          jury or judge.  Contrary to the plaintiff s assertion, it was her          responsibility, and not the court s or the defendants , to ensure          that the joint  statement was  introduced into evidence.   As  we          have explained,                    in our adversary system  of justice it is the                    parties   responsibility to  marshal evidence                    and prove  their  points.   Litigants  cannot                    expect  the court  to do  their homework  for                    them.  [Citations omitted].          Ondine Shipping Corp. v.  Cataldo, 24 F.3d 353, 356-57  (1st Cir.          _____________________     _______          1994).   The  plaintiff, for  whatever  reason having  failed  to          introduce the joint statement into evidence, cannot now avoid the          consequences  of  her  inaction  by  claiming the  court  or  the          defendants had the responsibility to introduce it.8                                        ____________________          7  Even if the plaintiff  had introduced the joint statement into          evidence, it is by no  means a foregone conclusion that it  would          have  sufficiently  cured  the  deficiency  in  her  evidence  to          withstand  the Rule  50(a) motion.    We need  not confront  this          issue,  however, because the plaintiff never introduced the joint          statement into evidence.          8   The  plaintiff has  also offered  two other  related theories          concerning the effect of the  joint statement.  First, she claims          that the  agreement that produced the joint statement should have          barred the defendants from moving for judgment as a matter of law          on the issues of ownership and control.  She further asserts that          the joint statement functioned as a contract between the parties,          one of the implied terms of which was the defendants  promise not          to  contest  ownership and  control,  and  that  breach  of  this          agreement  requires  reversal.   As  the  plaintiff  has produced          neither  legal authority  nor well-reasoned  arguments for  these                                         -9-                              2.  The Jury s Experience                              2.  The Jury s Experience                              _________________________                    The plaintiff  next contends  that she  produced enough          evidence  at trial to  allow the jurors to  infer, based on their          own   experience,  that  defendant   Ports  Authority  owned  and          controlled  the  area  of  the airport  where  the  accident took          place.9  The trial  judge, the plaintiff maintains, impermissibly          substituted  his  judgment  for that  of  the  trier  of fact  by          removing this decision from the jury.                    This case  clearly does  not present a  situation where          the  jury could rely on  its general knowledge  and experience to          determine something  as specific as  the location and  control of          the area where the plaintiff fell.  It would be pure  speculation          to  assume  what,  if any,  knowledge  the  members  of the  jury          possessed  concerning   these  specific  issues.    Although  the          plaintiff correctly  notes that she is entitled to all reasonable          inferences in  her favor,  tenuous conclusions  extrapolated from          conjectural knowledge attributed to jurors  cannot substitute for          evidence tested by the adversary process.  As we have said,  [t]o          warrant  submission of an issue  to the jury,  the plaintiff must          present  more than a mere scintilla  of evidence and may not rely          on  conjecture or  speculation.    Katz, 87  F.3d at  28 (quoting                                             ____                                        ____________________          propositions, we decline to find  that either one is viable under          the facts of this case.          9   At  oral  argument,  the plaintiff  conceded  that  defendant          Mangual s  liability could  be  established  only  by  the  joint          statement,  and  not  by the  jurors   experience  and knowledge,          because the plaintiff produced no evidence at trial that referred          to Mangual.                                         -10-          Richmond  Steel, Inc. v. Puerto Rican American Ins. Co., 954 F.2d          _____________________    ______________________________          19, 22 (1st Cir. 1992)).  Speculation about what the jurors might          have  inferred  based on  their  personal  knowledge of  airports          cannot and does not save the plaintiff s case.             3.  Other Evidence from which an Inference of Ownership or              3.  Other Evidence from which an Inference of Ownership or              ___________________________________________________________          Control Might Arise          Control Might Arise          ___________________                    We next  review  de  novo  the record  upon  which  the                                     ________          plaintiff rested her  case for  any evidence that  might raise  a          reasonable inference  that  Ports  Authority  owned  and  Mangual          maintained the  area where  the accident  occurred.   A  thorough          search of the appellate  record reveals no evidence  more helpful          to  the   plaintiff  than   that  considered,  and   rejected  as          inadequate, by the district court.                    The trial  judge  made the  following  statement  after          considering the Rule 50(a) motion:                      I  cannot take  judicial notice of  a place                    that I  don t even  know which is  the place.                    We cannot, by any stretch of the imagination,                    and  even viewing the  evidence in  the light                    most  favorable to  the [plaintiff],  reach a                    reasonable  conclusion  . . . that  the place                    where she fell, which  we don t know where it                    is, we  don t know which gate,  we don t know                    which  area  of the  airport,  was  under the                    control of the Ports Authority . . . .          Our  independent  evaluation  of  the  paucity  of  evidence  the          plaintiff managed to  produce on  this point after  nine days  of          trial  draws us inexorably to the same conclusion -- the evidence          produced by the plaintiff  was insufficient to withstand judgment          for the defendants as a matter of law.                                         -11-                    We conclude  that the  district court  properly granted          the  defendants  Rule  50(a)  motion.   The  plaintiff had  ample          opportunity at trial to produce evidence from which  the location          of  the accident and the  ownership and control  of that location          could be determined, but she failed to do so.                    B.  Pre- and Post-Trial Rulings                    B.  Pre- and Post-Trial Rulings                    _______________________________                    The plaintiff  next challenges  several pre-  and post-          trial rulings by the district court.                                    1.  Discovery                                    1.  Discovery                                    _____________                    The plaintiff asserts that  the district court erred in          prematurely ordering  that discovery be concluded  when it failed          to extend the discovery  deadline.  She argues that  the district          court  improperly decided  that no  further discovery  was needed          based on a conference  in which an attorney previously  dismissed          by the plaintiff purported to act as her counsel.   We review the          district  court s  decision  refusing  to  extend  the  discovery          deadline  for abuse  of discretion.   Mulero-Rodr guez  v. Ponte,                                                ________________     ______          Inc., 98 F.3d 670, 679 (1st Cir. 1996).            ____                    The  persuasiveness  of  the  plaintiff s  argument  is          undercut by its lack of supporting legal authority.  In fact, the          relevant  extant  authority  runs  contrary  to  the  plaintiff s          position.  As we have noted, courts have discretion                    under the inherent power   necessarily vested                    in [them]  to manage their own  affairs so as                    to  achieve  the   orderly  and   expeditious                    disposition of cases.                                          -12-          Luis C.  Forteza & Hijos, Inc.  v. Mills, 534 F.2d  415, 418 (1st          ______________________________     _____          Cir. 1976) (quoting Link v. Wabash, 370 U.S. 626, 630-31 (1962)).                              ____    ______                    The minutes  of the  March 16, 1995,  status conference          indicate that the  trial judge  did not abuse  his discretion  in          conducting the  conference.  At  that conference the  trial judge          properly  recognized  the  plaintiff s  former  counsel  for  the          limited purpose of  granting him permission to withdraw  from the          case and at  the same time made an appropriate  inquiry of him as          to the status of  any pending discovery.  Counsel  indicated that          no  discovery was  pending.   The trial  judge s decision  not to          extend  discovery at that time based on counsel s response was an          appropriate exercise  of his case management  authority given the          fact that the  case had  been languishing on  the district  court          docket for more than four years and there had been ample time for          discovery  to be completed.   There was still  an opportunity for          the  plaintiff s successor counsel to attempt in a timely fashion          to have  the deadline extended.  However, he waited for one month          after  appearing in this case  to request an  extension, and that          request was filed  on the  day before the  existing deadline  for          discovery.    The  trial  judge  had  provided  ample   time  for          discovery, and the  plaintiff s failure to take advantage of that          opportunity,  whether attributable  to her  personally or  to her          attorneys,  does  not provide  an adequate  basis  for us  now to          second-guess the  trial  judge s determination  that, after  four          years, the time to conclude discovery had come.                                         -13-                                 2.  Entry of Default                                 2.  Entry of Default                                 ____________________                    The  plaintiff also  asserts  that  the district  court          should have  entered a default  against the defendants  for their          failure to answer  her amended complaint rather than allowing the          motion to become  moot.  As we have noted,   [a] default judgment          is  itself a drastic sanction that  should be employed only in an          extreme  situation.   Forteza, 534  F.2d at 419;  cf. Anderson v.                                _______                     ___ ________          Beatrice Foods  Co.,  900 F.2d  388,  396 (1st  Cir.)  (discovery          ___________________          abuse,  while sanctionable, does not  require as a  matter of law          imposition  of  most severe  sanctions available),  cert. denied,                                                              ____________          498 U.S. 891 (1990).   The facts of this  case do not present  an          extreme situation justifying the entry of default.                    It is  certainly  not  without  significance  that  the          plaintiff took no action in  response to the defendants   failure          to  answer until  more  than two  years  after the  deadline  had          passed.  In  addition, the  defendants had  already answered  the          plaintiff s initial  complaint and the amended  complaint did not          materially  alter the plaintiff s theory  of the case.   There is          nothing  in the  record  to  suggest  that the  district  court s          failure to enter a default judgment under these circumstances was          an abuse of discretion.  In another context, we have endorsed the          authority of district courts to impose less than the most extreme          sanction  available.  See  Anderson, 900  F.2d at  396 (discovery                                ___  ________          abuse).  We will  not upset the district court s  decision, which          rested  within  its  sound discretion,  not  to  enter a  default          judgment against the defendants.                                         -14-                     3.  Exclusion of Plaintiff s Expert Witness                     3.  Exclusion of Plaintiff s Expert Witness                     ___________________________________________                    The  plaintiff  next  argues that  the  district  court          improperly barred  her from amending her  pretrial submissions to          include her loss-of-income  expert.  She argues that allowing her          loss-of-income expert  to testify would have  created no surprise          or  prejudice to the defendants because  he was known to them and          that excluding him deprived the plaintiff of her right to present          those facts to the jury.                      We need not reach  the merits of this argument.   Since          the plaintiff failed to  establish the defendants  liability, the          district court s ruling on this matter did not affect the outcome          of the case.                                4.  Costs and Expenses                                4.  Costs and Expenses                                ______________________                    Finally, the plaintiff seeks the  costs and expenses           she incurred at trial.  Since the plaintiff did not prevail at          trial and has provided neither justification nor legal authority          to support her claim that she is entitled to costs and expenses          as a non-prevailing party, we find no abuse of discretion in the          trial court s decision not to award her any costs or expenses.                                      Conclusion                                      Conclusion                                      __________                    For the reasons stated above, the judgment of the          district court is affirmed.  Costs are awarded to the defendants.                             affirmed                            ________                                         -15-
