
USCA1 Opinion

	




                            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  & 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 & Document Production                     A.  Discovery Cut Off & 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  & Women's                                   ___  ____  _______    __________________                                         -13-          Hospital, 78 F.3d 747, 748 (1st Cir. 1996); Smith v. F.W. Morse &          ________                                    _____    ____________          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  &                                         ___  ____  _____     _____________          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-
