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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1984 <br> <br>                   CHELSEA LEYVA, ETC., ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                   ON THE BEACH, INC., ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>                     Selya, Circuit Judge, <br>              and Acosta,* Senior District Judge. <br>                                 <br> <br> <br>     Kevin G. Little, with whom Law Offices of David Efron was on <br>brief, for appellants. <br>     Edward J. Horowitz, with whom Gerardo A. Quirs Lpez, John Q. <br>Kelly, and Kelly & Campo LLP were on brief, for appellees. <br> <br> <br> <br> <br> <br>April 1, 1999 <br> <br> <br> <br>                                 <br>                                 <br> <br>*Of the District of Puerto Rico, sitting by designation.

  SELYA, Circuit Judge.  On September 15, 1995, a tragedy <br>occurred at a three-story beach house in Santurce, Puerto Rico, <br>owned by Esther Feliciano Romn (Feliciano).  Because a hurricane <br>had been forecasted, a gaggle of relatives, neighbors, friends, and <br>acquaintances had been assisting in securing the beach house.  The <br>property itself comprised two stories operated by On The Beach, <br>Inc. (OTB) as the "Numero Uno Guest House," and a third floor that <br>served as a private residence for Feliciano (who was OTB's <br>president) and her husband, Chris Laube. <br>  Jorge Alberto Leyva, variously described as a good friend <br>of Laube and an employee or prospective employee of OTB, was one of <br>those who participated in the pre-hurricane preparations.  In the <br>course of this activity, Leyva fell from a third-floor terrace.  <br>Five days later, he died from injuries sustained in the fall. <br>  Invoking diversity jurisdiction, 28 U.S.C.  1332(a), <br>Leyva's family   all of whom were domiciled in Florida   brought a <br>wrongful death action in the federal district court against OTB, <br>Feliciano, and Laube.  The complaint attributed Leyva's demise to <br>a dangerous condition on the third-floor terrace (principally, the <br>absence of a railing at one spot) and asserted two main theories of <br>liability against the several defendants.  First, the plaintiffs <br>alleged in substance that the decedent had been an employee of the <br>defendants when injured, and that the defendants had breached a <br>duty "to provide [him] a safe workplace."  Alternatively, the <br>plaintiffs alleged in substance that Feliciano and/or Laube were <br>liable because they failed to maintain their premises in a <br>reasonably safe condition and allowed (or, indeed, requested) the <br>decedent to "perform an inherently dangerous task" thereon. <br>     OTB and Feliciano (in her capacity as an officer, <br>director, and shareholder of OTB) moved for partial summary <br>judgment on the ground that, contrary to the plaintiffs' <br>allegations, the decedent had not been employed by OTB on the date <br>of the accident.  Their motion addressed only the first of the <br>plaintiffs' two theories.  It in no way sought brevis disposition <br>on the second theory, that is, on the claims asserted against Laube <br>or against Feliciano in her individual capacity.  In a preliminary <br>margin order dated August 7, 1997, the district court acknowledged <br>as much; the court wrote:  "This motion only seeks to dismiss the <br>cause of action against the corporation and the cause of action <br>against E. Feliciano in her corporate capacity."  The margin <br>notation went on to pledge that "[t]he court will address the <br>motion accordingly." <br>     The plaintiffs opposed the defendants' motion for partial <br>summary judgment, and the court eventually took it under <br>advisement.  On July 7, 1998, the court reneged on its earlier <br>pledge; in a comprehensive opinion, it not only granted partial <br>summary judgment as requested in the motion papers but also entered <br>judgment against the plaintiffs on all remaining claims.  SeeLeyva v. On The Beach, Inc., Civ. No. 96-2116 (JAF), slip op. (July <br>7, 1998) (unpublished).  The plaintiffs do not challenge the entry <br>of summary judgment in favor of OTB and Feliciano in her corporate <br>capacity, but, rather, restrict their appeal to the court's <br>treatment of the individual liability claims. <br>     We need not linger long.  To be sure, district courts <br>possess the power to grant summary judgments on their own <br>initiative.  See Celotex Corp. v. Catrett, 477 U.S. 317, 326 <br>(1986); Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st <br>Cir. 1996).  But unbesought summary judgments can prove problematic <br>in the absence of proper procedural protections.  To alleviate <br>difficulties of this sort, we have counseled caution in the use of <br>that technique.  See, e.g., Jardines Bacata, Ltd. v. Diaz-Marquez, <br>878 F.2d 1555, 1561 (1st Cir. 1989) (warning, in regard to suasponte summary judgments, that "unnecessary haste frequently <br>results in more leisurely repentance").  Moreover, we have placed <br>two constraints on a district court's authority to grant summary <br>judgment sua sponte: <br>     First, a district court ordinarily may order <br>     summary judgment on its own initiative only <br>     when discovery is sufficiently advanced that <br>     the parties have enjoyed a reasonable <br>     opportunity to glean the material facts.  <br>     Second, the court may enter summary judgment <br>     sua sponte only if it first gives the targeted <br>     party appropriate notice and a chance to <br>     present its evidence on the essential elements <br>     of the claim or defense. <br> <br>Berkovitz, 89 F.3d at 29 (citations omitted); accord Stella v. Town <br>of Tewksbury, 4 F.3d 53, 55 (1st Cir. 1993). <br>     In the instant case, the parties disagree about the <br>status of pretrial discovery at the time the district court acted, <br>and, thus, it is unclear whether the first condition precedent to <br>a sua sponte summary judgment was met.  We may skirt that <br>imbroglio, however, for both of the Berkovitz conditions ordinarily <br>must be fulfilled in order for a sua sponte summary judgment to <br>withstand scrutiny   and in this case, the second condition was <br>never satisfied. <br>     In the context of a sua sponte summary judgment, "notice" <br>means that the targeted party "had reason to believe the court <br>might reach the issue and received a fair opportunity to put its <br>best foot forward."  Jardines Bacata, 878 F.2d at 1561.  The court <br>below gave no such notice.  Prior to making the spontaneous ruling, <br>it never informed the plaintiffs that it was considering a judgment <br>that would extirpate their claims against Laube and/or Feliciano in <br>her individual capacity.  By the same token, it never invited the <br>plaintiffs to assemble and proffer their best evidence in <br>connection with those claims.  To the contrary, the court's margin <br>order, inscribed well before it ruled on the defendants' motion, <br>stated in no uncertain terms that its decision would conform to the <br>limited scope of the motion.  When a court announces that it will <br>follow a procedural course, the parties are entitled to rely on <br>that announcement unless and until the court signals an impending <br>change and affords a reasonable opportunity to regroup.  SeeBerkovitz, 89 F.3d at 30; Stella, 4 F.3d at 55-56.  The court's <br>failure to adhere to these guidelines requires vacation of the <br>challenged portion of the judgment below. <br>     The defendants' principal rejoinder is that notice would <br>have been a futile exercise because the plaintiffs have no case:  <br>the accident was unforeseeable, and pretrial discovery has <br>unearthed nothing that would show negligence on Feliciano's or <br>Laube's part.  That may well be true.  From the pleadings and the <br>briefs, the plaintiffs' case appears to be an uphill climb.  But <br>courts contemplating the entry of summary judgment cannot simply <br>presume that plaintiffs will lose difficult cases and act <br>accordingly.  Cf. Greenburg v. Puerto Rico Maritime Shipping Auth., <br>835 F.2d 932, 936 (1st Cir. 1987) ("Fed. R. Civ. P. 56 does not ask <br>which party's evidence is more plentiful, or better credentialled, <br>or stronger.").  When, as now, the question comes down to one of <br>fact, a plaintiff is entitled to advance warning that the nisiprius court is considering terminating his case by means of summary <br>judgment, a fair opportunity to marshal whatever evidence he can <br>muster, and a chance to put forward his assembled evidence, along <br>with developed legal argumentation, in an effort to persuade the <br>trier that a full-blown trial is warranted.  When a trial court <br>fails to furnish such notice and pretermits the plaintiff's <br>presentation, it would be unseemly for an appellate court to <br>require the plaintiff to go outside the record and make an <br>affirmative showing that his claim is viable.  In all but the most <br>unusual cases, the record underlying that sort of fact-intensive <br>analysis must first be constructed in the district court. <br>     We need go no further.  Because the lower court did not <br>afford the plaintiffs adequate notice and a suitable opportunity to <br>be heard before it exceeded the scope of the motion that was <br>pending before it, we vacate so much of the court's order as <br>purports to enter judgment in favor of Laube, Feliciano in her <br>individual capacity, and their respective insurers, see supra note <br>1.  We do not foreclose the possibility of summary judgment should <br>the defendants so move, nor do we take any view as to the likely <br>outcome of the case upon further proceedings below. <br> <br>Vacated in part and remanded.  Costs to appellants.</pre>

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