
USCA1 Opinion

	




          May 18, 1993      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-2046                                CARMEN FRAGOSO, a/k/a                              CARMEN FRAGOSO DE CONWAY,                                Plaintiff, Appellant,                                          v.                             DR. MARIA A. LOPEZ, ET AL.,                                Defendants, Appellees.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of  the  Court  issued  on  April  5,  1993  is          corrected as follows:               On page 5, line 16   delete (1976 & Supp. 1989)               On  page 7,  footnote  5, line  1    change  "provision"  to          "language"               On page  7, footnote  5, lines 5-6    delete P.R.  Laws Ann.          tit. 26,   4021(1) (Supp. 1992).               On page 10, line 7   delete (1976 & Supp. 1989)                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                     ___________________________          No. 92-2046                                CARMEN FRAGOSO, a/k/a                              CARMEN FRAGOSO DE CONWAY,                                Plaintiff, Appellant,                                          v.                             DR. MARIA A. LOPEZ, ET AL.,                                Defendants, Appellees.                                                                                     _____________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                                                                     ___________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                     ___________________________               Hector M. Alvarado-Tizol on brief for appellant.               ________________________               Efren T. Irizarry-Colon and Elisa Figueroa-Baez on brief for               _______________________     ___________________          appellees.               Jose  Luis  Gonzalez  Castaner  on brief  for  Juan  Antonio               ______________________________          Garcia, Commissioner  of Insurance of the  Commonwealth of Puerto          Rico.                                                                                     _________________________                                    April 5, 1993                                                                                     _________________________                                                        SELYA,  Circuit  Judge.     Plaintiff-appellant  Carmen                    SELYA,  Circuit  Judge.                            ______________          Fragoso de  Conway (Fragoso),  a citizen  of New  Jersey, appeals          from  an order of the district court granting summary judgment in          favor  of certain defendants,  including an  insurer, Corporacion          Insular  de  Seguros (CIS),  which  became  insolvent during  the          pendency of  the appeal.   We now conclude  (1) that there  is no          compelling reason, based on either Erie R.R. Co. v. Tompkins, 304                                             _____________    ________          U.S. 64 (1938), or Burford  v. Sun Oil Co., 319 U.S.  315 (1943),                             _______     ___________          for us to  abstain in favor  of the liquidator's forum,  (2) that          the appeal  may proceed  in the ordinary  course, notwithstanding          CIS's financial plight, and (3) that appellant's arguments on the          merits  are unavailing.    Consequently, we  affirm the  judgment          below.          I.  BACKGROUND          I.  BACKGROUND                    Dr. Maria  A. Lopez  first treated  appellant's mother,          Milagros Rodriguez de Fragoso,  as an outpatient.   She diagnosed          Mrs. Rodriguez's condition as transient  cerebrovascular ischemic          activity  and  referred her  to  Dr.  Mojica for  a  neurological          consultation.   On October 13, 1984, Mrs.  Rodriguez was admitted          to Doctor's Hospital complaining  of numbness in her limbs.   Dr.          Lopez performed a cardiology evaluation the next day.  On October          18, Mrs. Rodriguez  complained of  tightness in her  chest.   Dr.          Lopez sharply  reduced the  prescribed medication and  ordered an          electrocardiogram.   Later that  evening, Mrs. Rodriguez  died of          heart failure.                    Plaintiff's   cousin,   Nilda  Fragoso   de  Rodriguez,                                          3          suspected medical malpractice.  In December 1984, she relayed her          suspicions  to  appellant.     On  January  16,  1985,  appellant          contacted   Attorney  Hector   Alvarado-Tizol   to  explore   the          possibility of a suit.  That same day, appellant hand-delivered a          letter  to  Doctor's  Hospital  requesting  her  mother's medical          records.1    Appellant  then  returned  to  New  Jersey,  leaving          matters in her attorney's hands.                    On  April  5, 1989    over  four  full years  after her          mother's death      appellant invoked diversity  jurisdiction, 28          U.S.C.    1332  (1988), and  sued Lopez,  CIS, and  several other          health-care  providers in Puerto  Rico's federal  district court.          (CIS was joined as  a defendant pursuant to Puerto  Rico's direct          action  statute,   P.R.  Laws  Ann.  tit.  26,     2003  (1990).)          Following  a lengthy  period  devoted to  discovery and  pretrial          skirmishing,  and   marked  by  settlement  of   the  plaintiff's          differences  with other  named defendants,  Lopez and  CIS sought          summary judgment.  On July 13, 1992, the district court found the          suit  to  be   barred  by  Puerto  Rico's   one-year  statute  of          limitations   governing  negligence   actions  and   granted  the          defendants' motion.  The court thereafter denied Fragoso's motion          for reconsideration.  This appeal ensued.2          II.  THE REQUEST TO DISMISS THE APPEAL OR STAY PROCEEDINGS          II.  THE REQUEST TO DISMISS THE APPEAL OR STAY PROCEEDINGS                                        ____________________               1In her  deposition, Fragoso speculated that  the letter may          have been delivered during  the spring of 1985.  She now concedes          that it was delivered on January 16, 1985.               2When  summary judgment was entered, Lopez  and CIS were the          sole  remaining  defendants.    They  are,  therefore,  the  sole          appellees.                                           4                    On  December 23,  1992, shortly  after this  appeal had          been  assigned for  hearing,  appellees filed  a motion  relating          that,   on  December   21,  1992,   the  Puerto   Rico  Insurance          Commissioner   (the  Commissioner)   had   petitioned   for   the          liquidation  of CIS; that  a superior  court judge,  discerning a          $28,000,000 capital insufficiency,  appointed the Commissioner as          liquidator of  CIS under P.R. Laws  Ann. tit. 26,    4004 (1976);          and  that  the judge  had issued  an  order remitting  all claims          against  CIS   to  the  claims  process   demarcated  within  the          liquidation  proceedings.3   Appellees  requested that  the claim          underlying the  instant appeal  be so  forwarded (and  the appeal          dismissed), or, alternatively, that proceedings herein be  stayed          pendente lite pursuant  to a provision of Puerto Rico's Insurance          ________ ____          Code.4  We granted an  interim stay of  proceedings and requested                                        ____________________               3The  original order was soon amended and we refer herein to          the  amended version as the  Liquidation Order.   Paragraph 25 of          the  Liquidation Order provides that "any claims against [CIS] or          its insurers under  an insurance  policy or any[]  other kind  of          claim, be remitted to the Liquidator . . . . "               4The statute provides in pertinent part:                    Judicial proceedings to which  [an] insolvent                    insurer is an  interested party  or in  which                    [it] is bound to represent a party in a court                    of  competent  jurisdiction  in  Puerto  Rico                    shall  be temporarily  suspended for  six (6)                    months or that period  in addition to the six                    (6)   months   granted   by   a   court  with                    jurisdiction,  from  the date  the insolvency                    was determined to  permit the [liquidator] an                    adequate  defense  of   all  causes   pending                    action.          P.R. Laws Ann. tit. 26,   3818 (Supp. 1989).                                          5          supplemental briefing from the parties and the Commissioner.  The          briefing period having passed, we now consider appellees' and the          Commissioner's requests that we remit the underlying claim to the          liquidator's  claims process  or, at  least, stay  proceedings in          this case pending the expiration  of the full cooling-off  period          stipulated in the Insurance Code.                               A.  The Erie Doctrine.                                 A.  The Erie Doctrine.                                   __________________                    We start  with bedrock:   a state  court cannot  enjoin          federal  proceedings.  See General Atomic Co. v. Felter, 434 U.S.                                 ___ __________________    ______          12,  17  (1977); Donovan  v. Dallas,  377  U.S. 408,  413 (1964).                           _______     ______          Thus, the prohibitions contained in  the Liquidation Order do not          bind this court.                    The truism, however,  does not end the matter.  Relying          on the  Rules of Decision Act,  see 28 U.S.C.    1652 (1988), and                                          ___          the familiar  Erie doctrine,  304 U.S.  at  78, the  Commissioner                        ____          posits  that, in  the  exercise of  diversity jurisdiction,  this          court must  apply several  provisions of Puerto  Rico's Insurance          Code collectively  requiring dismissal  of the claim  against CIS          and  a six-month stay of the claim  against Lopez.  See P.R. Laws                                                              ___          Ann. tit. 26,    3818, 3819, 4021, 4032.  We disagree.                    A federal  court sitting  in diversity is  not required          automatically  to  follow  all  particulars of  a  state  court's          process  for dispute resolution.   Rather,  Erie and  its progeny                                                      ____          identify  certain principles that must be used to cull wheat from          chaff.    The  "twin  aims"  animating   the  Erie  doctrine  are                                                        ____          "discouragement  of forum-shopping  and avoidance  of inequitable                                          6          administration of the laws."  Hanna v. Plumer, 380 U.S. 460,  468                                        _____    ______          (1965).    These goals  are intertwined  with  the policy  that a          federal forum "should conform as near  as may be   in the absence          of other considerations    to state rules even of  form and mode"          when those rules "may  bear substantially" on the outcome  of the          litigation.  Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S.                       ____    __________________________________          525, 536 (1958); see Guaranty Trust Co. v. York, 326 U.S. 99, 109                           ___ __________________    ____          (1945);  Feinstein v. Massachusetts Gen. Hosp., 643 F.2d 880, 884                   _________    ________________________          (1st Cir.  1981).  After  giving respectful consideration  to the          Commissioner's views, we believe that processing Fragoso's appeal          without regard to Puerto Rico's  legal framework for dealing with          insolvent insurers will not offend the Erie rule.                                                 ____                    For one  thing, it is inconceivable  that a defendant's          differential ability, depending upon  whether the suit is brought          in  a federal or in a commonwealth court, to invoke Puerto Rico's          procedural law anent insolvent insurers after  trial and entry of          judgment will influence  a litigant's  choice of forum.   When  a          plaintiff selects a forum at  the commencement of litigation, she          is unlikely  to weigh the possibility that  a defendant's insurer          might  become  insolvent   years  later,  thus   influencing  the          procedural  status of pending appeals.   We think,  too, that the          uncertainty as to how  a Puerto Rico appellate court  might apply          the  laws  in  question would  stymie  attempted  forum-shopping.          Although  the  Commissioner maintains  that a  commonwealth court          would dismiss the appeal against CIS, the forecasted result is by          no means certain.   The Insurance Code  directs  a six-month stay                                          7          of  all proceedings against the insolvent insurer.  See P.R. Laws                                                              ___          Ann.  tit.  26,      3818,  quoted  supra  note  4.    While  the                                              _____          Commissioner  assumes that  P.R.  Laws Ann.  tit.  26,    4021(1)          mandates dismissal  of the  appeal,5 he  neither suggests how  to          reconcile  this provision with  section 3818 nor  explains how an          appellate   proceeding  filed  against  the  insurer  before  the          issuance of a liquidation order comes within the contemplation of          section 4021.  The first Erie consideration, then, does not favor                                   ____          application  of Puerto  Rico's Insurance  Code provisions  to the          instant appeal.                    For    another   thing,   declining    to   apply   the          Commonwealth's procedural laws here will not advantage Fragoso as          compared  with similarly  situated, non-diverse plaintiffs.   Cf.                                                                        ___          Erie, 304 U.S. at 74-75.   A principal function of the  Insurance          ____          Code provisions is to allow adequate time for defense preparation          and  minimize   expense.     Here,  additional  time   is  wholly          unnecessary; the case was fully briefed prior to the entry of the          Liquidation  Order  and  the  merits  are   straightforward,  not          requiring  oral argument.  See  Fed. R. App.  P. 34(a) (providing                                     ___          for  eschewal  of  oral  argument  where  "the  facts  and  legal          arguments  are adequately presented in the  briefs and record and          the  decisional process would not  be significantly aided by oral          argument");  1st  Cir. Loc.  R.  34.1(a)(2)(iii)  (same).   Thus,                                        ____________________               5The language  upon which the Commissioner  relies states in          pertinent part that "no action at law or  equity shall be brought          against  the insurer  or  liquidator, whether  in Puerto  Rico or          elsewhere, nor shall  any such existing actions be  maintained or          further presented after issuance [of a liquidation order]."                                           8          refusal to remit the action against CIS to the liquidator's forum          or to stay the  action against Lopez works  no inequity from  the          standpoint of either preparation or defense costs.                    What  is  more,    Puerto  Rico's  insolvent  insurers'          liquidation  provisions  do  not  bear in  the  slightest  on the          substantive  outcome  of  the  appeal.    These  laws  provide  a          procedure  through  which  claims  against  the  insurer  can  be          resolved and  its  assets equitably  distributed.   They  do  not          absolve  the insurer of any  substantive liability.   There is no          basis  for  concluding  that  this  court  will  reach  a  result          regarding the underlying  merits of Fragoso's appeal  that is any          different from the result  that a Puerto Rico court  would reach,          had  it stayed the action,  or that the  liquidator's forum would          reach, had the action been forwarded there.                    Thus, we  reject the  Commissioner's argument  that the          Erie  doctrine compels us to  dismiss the appeal  against CIS and          ____          stay the proceeding against Lopez.                         B.  Relevancy of Burford Abstention.                         B.  Relevancy of Burford Abstention.                             ________________________________                    In  the alternative,  the  Commissioner urges  that  we          abstain from hearing the instant appeal under the rule of Burford                                                                    _______          v.  Sun  Oil Co.,  319  U.S.  315 (1943).    In  its most  recent              ____________          discussion  of Burford  abstention, see  New Orleans  Pub. Serv.,                         _______              ___  ________________________          Inc. v. City Council of New Orleans [NOPSI], 491 U.S. 350, 360-64          ____    ___________________________ _______          (1989), the  Supreme Court  explained that the  doctrine counsels          federal courts  "sitting in  equity" to refrain  from interfering          with  "proceedings or  orders  of state  administrative agencies"                                          9          when "timely and adequate state court review is available" and:                    (1)   when there are 'difficult  questions of                    state  law  bearing  on  policy  problems  of                    substantial  public  import whose  importance                    transcends  the result  in the  case  then at                    bar';  or (2)  where the 'exercise of federal                    review  of  the question  in  a  case and  in                    similar  cases would  be disruptive  of state                    efforts to establish  a coherent policy  with                    respect  to a  matter  of substantial  public                    concern.'          Id. at  361 (quoting Colorado  River Water Conservation  Dist. v.          ___                  _________________________________________          United States, 424 U.S. 800,  814 (1976)).  In sum, NOPSI  cabins          _____________                                       _____          the  operation  of  the  Burford doctrine.    Post-NOPSI  Burford                                   _______                   _____  _______          applies only in narrowly circumscribed situations where deference          to a  state's administrative  processes for the  determination of          complex, policy-laden, state-law issues would serve a significant          local   interest   and    would   render   federal-court   review          inappropriate.  Abstention will be "the exception, not the rule."          Id.  at  359 (citation  and  internal  quotation marks  omitted);          ___          accord  County of Allegheny v.  Frank Mashuda Co.,  360 U.S. 185,          ______  ___________________     _________________          188-89 (1959).                    In  light of  this recent  characterization of  Burford                                                                    _______          abstention,  we have  three reasons  for questioning  whether the          doctrine  is at all relevant  here.  In  the first place, Burford                                                                    _______          commands  federal   courts   "sitting  in   equity"   to   abjure          interference  with certain state fora.   NOPSI, 491  U.S. at 361.                                                   _____          Although enjoining  an action in deference to  a state proceeding          is  an exercise of  equitable power, the  case at hand  is a tort          action.  When, as now, the  only equitable power a court is asked          to exercise constitutes the very act of abstaining under Burford,                                                                   _______                                          10          we  think  it is  highly questionable  whether  the court  is one          "sitting  in  equity"  to   which  Burford  abstention  might  be                                             _______          available.6                    In   the  second  place,  NOPSI  characterizes  Burford                                              _____                 _______          abstention   as  a   doctrine  shielding   "state  administrative          agencies"  from federal  court interference.   Id.   While Puerto                                                         ___          Rico's tailored  revision of  the Rehabilitation and  Liquidation          Model Act,  see P.R.  Laws Ann.  tit. 26,     4001-4054,  sets in                      ___          place a "comprehensive framework for the liquidation of insolvent          insurance companies  and the resolution of  claims against them,"          Gonzalez v. Media  Elements, Inc.,  946 F.2d 157,  157 (1st  Cir.          ________    _____________________          1991)(per curiam), we question whether the scheme creates a state          administrative agency,  as opposed  to a judicial  structure,7 to                                        ____________________               6Prior  to  NOPSI,  the  Third  Circuit  considered  whether                           _____          Burford  abstention is  appropriate when  a "court  is not  being          _______          asked to provide equitable relief."    Lac D'Amiante Du Quebec v.                                                 _______________________          American  Home Assurance Co., 864 F.2d 1033, 1044 (3d Cir. 1988).          ____________________________          In  rejecting the proposition that Burford abstention may turn on                                             _______          the  type  of relief  sought, the  court  noted that  the Supreme          Court's  discussion  of  Burford  abstention  in  Colorado  River                                   _______                  _______________          "failed to mention the relevancy of equitable relief."  Id.  But,                                                                  ___          the  NOPSI  Court  specifically  described the  doctrine  as  one               _____          available  to "a federal  court sitting in equity."   491 U.S. at          361.   Because we believe that this reference cannot be dismissed          as  language  languorously loosed,  we  conclude  that the  NOPSI                                                                      _____          Court's  distillation of  Burford abstention  shines  a different                                    _______          light on this issue.  We  note, moreover, that the Third Circuit,          in NOPSI's wake, seems similarly inclined.  See University of Md.             _____                                    ___ _________________          v. Peat Marwick Main & Co., 923 F.2d 265, 271-72 (3d Cir. 1991).              _______________________               7The estates  of insolvent  insurance  companies are  exempt          from the operation of the federal bankruptcy laws.  See 11 U.S.C.                                                              ___             109(b)(2)  (1988).    Thus, the  Puerto  Rico  Insurance  Code          fashions   a  format   for  regulating   insurers'  insolvencies,          rehabilitations, and liquidations, centralizing  proceedings into          a  single court analogous  to a federal  bankruptcy court wherein          the  Commissioner, as  an  agent of  the  court, functions  as  a                                          11          which deference under Burford  may be paid.  While  the Insurance                                _______          Code regulates insolvent insurers  doing business in Puerto Rico,               _________          it is not at all clear  that it sets up the functional equivalent          of an administrative agency.                    In the  third place, Burford  abstention is  implicated                                         _______          when  the federal  courts  are  asked  to  interfere  with  state          processes  by  reviewing  the  proceedings  or  orders  of  state                         _________          administrative  agencies, ergo,  the requirement  of "timely  and          adequate  state-court review."    NOPSI, 491  U.S.  at 361.    In                                            _____          Burford,  for example, the Supreme Court abstained in the face of          _______          a  demand that  it  review a  state  railroad commission's  order          allocating oil drilling rights.  See Burford, 319 U.S. at 316-17;                                           ___ _______          see  also NOPSI, 491 U.S. at 352-53 (discussing abstention in the          ___  ____ _____          context  of a challenge  to a  ratemaking order);  Alabama Public                                                             ______________          Serv.  Comm'n v.  Southern  Ry. Co.,  341  U.S. 341,  342  (1951)          _____________     _________________          (approving  abstention   from  review   of  a   commission  order          prohibiting the discontinuance  of certain local train  service).          Here, however,  we are not being  asked to review  the actions or          decisions of any  state body, be  it judicial or  administrative.          Thus, the relevancy of Burford abstention is equally questionable                                 _______          from this standpoint.                          C.  Applying Burford Abstention.                            C.  Applying Burford Abstention.                              ____________________________                    Even  assuming,  for  argument's  sake,   that  Burford                                                                    _______          remains  relevant  to  this  genre  of  litigation,  the  current          situation  affords  no  occasion  for  abstention.    We  explain                                        ____________________          receiver.  See P.R. Laws Ann. tit. 26,   4008 (1976).                     ___                                          12          briefly.                      This appeal  frames no  "difficult question[]  of state          law" bearing  on significant public  policy issues such  as would          prompt  abstention.   NOPSI, 491  U.S. at  361  (quoting Colorado                                _____                              ________          River,  424  U.S.  at  814).    The  action  merely  entails  the          _____          application of  a Puerto Rico statute  of limitations, frequently          interpreted in  the past, to an  idiocratic set of  facts.  Thus,          the  first avenue  to Burford  abstention is  a dead  end.   And,                                _______          moreover, even if difficult or  unresolved questions of local law          were  present     and  we  descry none     the  presence  of such          questions,  without  more,  would  not justify  abstention  by  a          federal court  properly sitting in  diversity.   See Bergeron  v.                                                           ___ ________          Estate of Loeb, 777  F.2d 792, 800 (1st Cir. 1985), cert. denied,          ______________                                      _____ ______          475 U.S. 1109 (1986); Construction Aggregates Corp.  v. Rivera de                                _____________________________     _________          Vicenty, 573 F.2d 86, 91 (1st Cir. 1978).          _______                    We  turn,  then,  to  the  second  roadway  to  Burford                                                                    _______          abstention:  when  federal review will disrupt "state  efforts to          establish  a  coherent  policy  with   respect  to  a  matter  of          substantial  public concern."   NOPSI, 491  U.S. at  361 (quoting                                          _____          Colorado  River,  424  U.S.  at  814).    Several  circuits  have          _______________          considered whether  deciding cases involving  insolvent insurance          companies would inflict a  sufficiently profound dislocation of a          state's efforts to develop  policies of substantial local concern          as  to merit  abstention, see,  e.g., Bilden v.  United Equitable                                    ___   ____  ______     ________________          Ins.  Co., 921 F.2d  822, 825-27 (8th  Cir. 1990),  and some have          _________          approved abstention in such  circumstances.  See Barnhardt Marine                                                       ___ ________________                                          13          Ins., Inc. v.  New Eng. Int'l  Sur. of Am.,  Inc., 961 F.2d  529,          __________     __________________________________          531-32  (5th Cir.  1992) (upholding  abstention in  an action  to          recover premiums on canceled  policies); Martin Ins. Agency, Inc.                                                   ________________________          v. Prudential  Reinsurance Co.,  910 F.2d  249, 254-55 (5th  Cir.             ___________________________          1990) (upholding abstention in  an action to retrieve reinsurance          proceeds);  Lac D'Amiante  Du Quebec  v. American  Home Assurance                      ________________________     ________________________          Co., 864 F.2d  1033, 1042-49 (3d  Cir. 1988) (finding  abstention          ___          appropriate  and vacating declaratory  judgment); Law Enforcement                                                            _______________          Ins. Co. v. Corcoran, 807 F.2d 38, 43-44 (2d Cir. 1986)  (finding          ________    ________          abstention  appropriate  in declaratory  judgment  action), cert.                                                                      _____          denied,  481  U.S.  1017   (1987).    We,  ourselves,  heretofore          ______          abstained in an appeal against an insolvent insurance  company so          as  not  to "disrupt  Puerto  Rico's regulatory  system."   Media                                                                      _____          Elements, 946 F.2d at 157.8            ________                    Be  that as it may, we do not believe, in general, that          federal court  decisionmaking of  the kind that  exists alongside          state insurance liquidation proceedings so significantly disrupts          state regulatory frameworks to call for abstention.  After NOPSI,                                                                     _____          Burford    abstention   is   only   appropriate   where   federal          _______          decisionmaking  demands  "significant  familiarity  with  .  .  .          distinctively local  regulatory facts  or policies."   NOPSI, 491                                                                 _____          U.S.  at 364.   The doctrine's  function is  to allow  a state to          develop,  where  necessary,  the  uniformity  needed  to  achieve          important  local  interests.   Deciding  appeals  like Fragoso's,                                        ____________________               8In  Media   Elements,  no  one  opposed   the  request  for                    _____   ________          abstention.   We granted  it by summary  order, without extensive          analysis.                                            14          which  will have at most  an indirect effect  on the liquidator's          claims process by potentially giving  rise to an additional claim          against   the   insolvent   insurance   company,   will   neither          discombobulate local proceedings nor frustrate the Commonwealth's          regulatory  system.  Just as the federal courts would not abstain          from  deciding legal issues pertaining  to a party  involved in a          federal bankruptcy proceeding, see,  e.g., Picco v. Global Marine                                         ___   ____  _____    _____________          Drilling Co., 900 F.2d  846, 850 (5th Cir. 1990)  ("The automatic          ____________          stay of the bankruptcy court does not divest all other  courts of          jurisdiction to hear  every claim that is  in any way  related to          the bankruptcy  proceeding."), we can  see no reason  for Burford                                                                    _______          abstention  simply because  the  judicial bankruptcy  proceedings          happen to be before a state court.                               We  believe, therefore,  that the  circuit  court cases          favoring abstention in insurer  insolvency matters are suspect in          light of  NOPSI.9    At any  rate, they are  distinguishable from                    _____                                        ____________________               9This view is  neither original  nor exclusive to  us.   See                                                                        ___          Erwin  Chemerinsky,  Federal  Jurisdiction  111-12  (Supp.  1990)                               _____________________          (concluding  that NOPSI  reins  in "several  .  . .  lower  court                            _____          decisions  expansively  interpreting Burford  abstention").   One                                               _______          decision  specially mentioned  by  Professor  Chemerinsky is  Lac                                                                        ___          D'Amiante,  864 F.2d  1033    a Third  Circuit decision  on which          _________          Media Elements relies.  See Media Elements, 946 F.2d at  157.  We          ______________          ___ ______________          agree with Professor Chemerinsky that Lac D'Amiante is  no longer                                                _____________          good  law.  Burford, as  explicated by the  NOPSI Court, involves                      _______                         _____          the protection  of "complex  state administrative  processes from          undue federal interference, [but]  it does not require abstention          whenever there exists such a process, or even in all cases  where          there  is a potential for  conflict with state  regulatory law or          policy."  NOPSI, 491 U.S. at 362 (citation and internal quotation                    _____          marks  omitted); see also Chemerinsky, supra, at 112.  Indeed, we                           ___ ____              _____          read  the Third  Circuit's post-NOPSI  caselaw as  signalling the                                          _____          demise of  Lac D'Amiante.  See University  of Md. v. Peat Marwick                     _____________   ___ __________________    ____________          Main & Co., 923 F.2d 265, 272  (3d Cir. 1991); see also Melahn v.          __________                                     ___ ____ ______          Pennock  Ins.,  Inc.,   965  F.2d  1497,  1505  (8th  Cir.  1992)          ____________________                                          15          the  instant case for a number of  reasons.  First, in nearly all          of those cases, insolvency intervened  before the trial court had          entered  final judgment.  Ordinarily, the  more embryonic a case,          the more significant an interference with the state framework for          handling insurance  liquidation if the federal  tribunal does not          yield.  A  case such as Fragoso's, where a  trial is complete and          solely legal  questions suitable for federal appellate resolution          are pending on appeal,  is a very weak candidate  for abstention.          As we have remarked before,  abstention serves "the interests not          only  of  federalism, but  of  comity  and judicial  efficiency."          Medical Malpractice  Joint  Underwriting Ass'n  v. Pfeiffer,  832          ______________________________________________     ________          F.2d 240, 244 (1st Cir. 1987).  Once a federal court has rendered          a final  judgment, it  is questionable  whether abstention is  an          efficient or practical move.   After all, the liquidator's  forum          has  no mechanism for reviewing  a federal court  decision.  What          would become  of the original judgment  is a puzzle.   In Bilden,                                                                    ______          where  the  district  court  rendered  its  judgment  before  the          insurance  company entered  liquidation proceedings,  see Bilden,                                                                ___ ______          921 F.2d at 824, the Eighth  Circuit held that an appeals court's          decision   on   the  merits   would   not   interfere  with   the          rehabilitator's  control of  the  insurance company  or with  the          proper  operation of the state's  regulatory format.   See id. at                                                                 ___ ___          826.  It is difficult to fault so level-headed an approach.                    Second,  the  concerns  animating abstention  in  Media                                                                      _____                                        ____________________          (observing "that the Third Circuit has cast doubt on the vitality          of [Lac D'Amiante] as a result of the Supreme Court's more recent              _____________          holding in NOPSI") (citing Peat Marwick Main).                        _____           _________________                                          16          Elements, the one case cited supra where the Burford issue became          ________                     _____           _______          relevant only on appeal and  the court nevertheless abstained, do          not apply here.  The appeal in Media Elements involved a coverage                                         ______________          issue and,  therefore, the  court reasoned that  abstention would          lessen the  risk of  inconsistent coverage interpretations.   See                                                                        ___          Media Elements,  946 F.2d  at 157.    Fragoso's appeal,  however,          ______________          requires  that we decide a question of law unrelated to coverage.          The case is idiocratic and fact-specific.  Passing on this appeal          could  not possibly  impair uniformity  in the  interpretation of          CIS's  insurance  policies,  nor  could  doing  so  obstruct  the          adjudication  of claims  against CIS  in the  liquidator's forum.          This is a singularly  important difference.  See Grimes  v. Crown                                                       ___ ______     _____          Life  Ins. Co., 857 F.2d 699, 704  (10th Cir. 1988) (stating that          ______________          abstention  is less desirable where  a suit does  not require the          court to  determine issues  which are  directly  relevant to  the          liquidation proceeding  or to state policies),  cert. denied, 489                                                          _____ ______          U.S. 1096 (1989).  In fact, it seems more  likely that processing          the appeal,  with the result  that the district  court's judgment          will  be affirmed or vacated, would help the Commissioner, for it          is totally unclear  how the commonwealth forum  would resolve the          appellate matter, or that it could.                    The Media Elements panel  also observed that compliance                        ______________          with Puerto  Rico's  process would  reduce  the funds  which  the          insurer would have to spend on  litigation.  See 946 F.2d at 157.                                                       ___          Resolving this appeal in the ordinary  course, however, would not          cost CIS money.  The briefs are already filed, and, as previously                                          17          pointed out, see  supra p.7, there is no  need for oral argument.                       ___  _____          Therefore,  the concerns  that may  have warranted  abstention in          Media  Elements  are  not  present  here.    We  are,  therefore,          _______________          comfortable in limiting Media Elements to its own facts.10                                  ______________                    We need go no further.  NOPSI makes clear that  Burford                                            _____                   _______          abstention   requires  more   than  a   desire  to   avoid  every          inconvenience to, or disruption of, a state's regulatory systems.          Otherwise,  abstention would be  proper "in any  instance where a          matter  was   within  an  administrative   body's  jurisdiction."          Chemerinsky,  supra,  at 112.    That  cannot be  the  rule.   It                        _____          follows, then,  that the mere  existence of state  procedures, or          even  the existence  of  a complex  state  apparatus designed  to          handle a specific class of problems, does not necessarily justify          abstention.  See  Melahn v.  Pennock Ins., Inc.,  965 F.2d  1497,                       ___  ______     __________________          1505 (8th Cir.  1992).   In the final  analysis, abstention  here          would   be  inconsistent   with  the   policies  underlying   the          constitutional grant of diversity jurisdiction and would render a          substantial  injustice  to  those  litigants  seeking   to  avail          themselves  of their  statutory right  to a  federal forum.   See                                                                        ___          Allegheny County, 360 U.S. at  188 (observing that abstention "is          ________________          an extraordinary and narrow  exception to the duty of  a District          Court  to adjudicate  a controversy  properly before  it").   We,                                        ____________________               10We note in passing that, while Media Elements  was decided                                                ______________          after NOPSI,  the order  for abstention neither  cited NOPSI  nor                _____                                            _____          acknowledged its suzerainty.                                          18          therefore, decline the invitation to abstain.11             III.  THE ENTRY OF SUMMARY JUDGMENT          III.  THE ENTRY OF SUMMARY JUDGMENT                    The merits of the  appeal need not detain us.   Summary          judgment is appropriate when "the pleadings, depositions, answers          to  interrogatories, and  admissions on  file, together  with the          affidavits, if any, show that there is no genuine issue as to any          material fact and that  the moving party is entitled  to judgment          as a  matter  of law."    Fed. R.  Civ.  P.  56(c).   The  rule's          mechanics  are well  known.   Once  the  movant demonstrates  "an          absence  of  evidence to  support  the  nonmoving party's  case,"          Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the nonmovant          _____________    _______          must establish the  existence of  at least one  genuine issue  of          material fact.   See Anderson  v. Liberty Lobby,  Inc., 477  U.S.                           ___ ________     ____________________          242, 248 (1986).  Where,  as here, a motion for summary  judgment          has  been granted, appellate review  is plenary.   Hence, we must          evaluate the entire record in the ambiance most flattering to the          summary judgment loser,  indulging all  reasonable inferences  in          her favor, in order to determine the propriety of the order.  See                                                                        ___          Mesnick v. General Elec. Co., 950  F.2d 816, 822 (1st Cir. 1991),          _______    _________________          cert. denied, 112 S.  Ct. 2965 (1992); Griggs-Ryan v.  Smith, 904          _____ ______                           ___________     _____          F.2d 112, 115 (1st Cir. 1990); Mack v. Great Atl. & Pac. Tea Co.,                                         ____    _________________________                                        ____________________               11Neither the Commissioner nor the appellees have  contended          that  any idiosyncracy  in Puerto  Rico's direct  action statute,          P.R.  Laws  Ann. tit.  26,    2003,  compels a  different result.          Because of this fact,  and because of the utter lack of prejudice          to the  insurer in the posture of this  case, we do not reach the          question  of  whether a  liquidator of  an insolvent  Puerto Rico          insurance  company may have greater rights to insist upon a local          forum when the company  is a party to the  underlying suit solely          by virtue of the direct action statute.                                          19          871 F.2d 179, 181 (1st Cir. 1989).                    In this diversity action, the substantive law of Puerto          Rico  controls.   See  Erie, 304  U.S.  at 78.    The statute  of                            ___  ____          limitations  governing negligence actions is "one year . . . from          the time the aggrieved person has knowledge of the injury."  P.R.          Laws Ann.  tit. 31,    5298 (1990).   "Knowledge of  the injury,"          under Puerto  Rico law, is a term of art.   It requires a showing          of both  "notice of  the injury"  and "notice  of the  person who          caused  it."   Colon Prieto v.  Geigel, 115  D.P.R. 232,  247, 15                         ____________     ______          Official  Translations  313,   330  (1985)  (citation   omitted).          Limitations defenses may appropriately be resolved at the summary          judgment stage  if reasonable minds  could not  differ about  the          legal effect of the properly documented facts of record, taken in          the light most  favorable to  the nonmovant.   See Kali  Seafood,                                                         ___ ______________          Inc. v. Howe Corp., 887 F.2d 7, 9 (1st Cir. 1989); Mack, 871 F.2d          ____    __________                                 ____          at 181.                     In this case,  Fragoso admittedly knew of the  injury            her  mother's demise   and she was informed shortly thereafter of          the  possible link  between the  injury and  medical malpractice.          She  treated this  information  as credible  and  acted upon  it,          promptly retaining an attorney  to explore that very nexus.   The          question in this  case, then, is  whether appellant's failure  to          acquire notice of  the person  or persons who  caused the  injury          tolled the limitations period.                    We, like other courts, recognize that  it is unfair, by          and large, to  bar a tort action by the mere passage of time if a                                          20          plaintiff,  exercising  due   diligence,  cannot  ascertain   the          tortfeasor's  identity.   Because self-induced  ignorance of  the          tortfeasor's identity will not interrupt the limitations period,           "[t]he  key   inquiry  under   this  prong  of   the  `knowledge'          requirement is  whether  plaintiff knew  or `with  the degree  of          diligence required by law' would have known whom to sue."  Kaiser                                                                     ______          v.  Armstrong World  Indus., Inc.,  872 F.2d  512, 516  (1st Cir.              _____________________________          1989)  (citations omitted).   This means that  an inquiring court          must  ascertain   whether  ignorance  of  a   fact  reflects  the          plaintiff's  negligence,  because, if  it  does,  the limitations          clock will continue to tick.  See Santiago Hodge v. Parke Davis &                                        ___ ______________    _____________          Co., 833 F.2d  6, 8 (1st Cir. 1987); Colon  Prieto, 115 D.P.R. at          ___                                  _____________          244,   15  Official  Translations  at   327-28.    Just  as  "the          limitations period will be suspended only upon a clear showing of          diligent efforts to discover  the cause of the injury  or death,"          Aldahonda-Rivera v. Parke  Davis &  Co., 882 F.2d  590, 594  (1st          ________________    ___________________          Cir.  1989),  so the  law requires  a  clear showing  of diligent          efforts  to discover  the  identity of  likely defendants  before          suspending the prescriptive period.                    Under Puerto Rico law, if a plaintiff sues in tort more          than a year after the injury  took place, she bears the devoir of          persuasion with respect  to proving that she lacked the knowledge          which would  have  enabled her  to  sue within  the  prescriptive          period.  See Kaiser, 872 F.2d at 516; Santiago Hodge, 833 F.2d at                   ___ ______                   ______________          7.   Here, appellant,  who sued long  after the  year had passed,          wholly failed to carry her corollary burden.  The record reflects                                          21          an extraordinary delay   well over four years   between the  time          appellant first  had reason to believe  that someone's negligence          had caused her mother's death and the time  she actually took aim          at a particular cadre of defendants.                      Moreover,  the  delay  was  never  credibly  explained.          Although  appellant  argued   before  the  district   court  that          difficulties in  procuring the hospital record  caused the delay,          her  argument  was based  on  freestanding  allegations and  was,          therefore, appropriately rejected.  We have made it crystal clear          that, in opposing summary judgment, a litigant "may not rest upon          mere  allegations in,  say, an  unverified complaint  or lawyer's          brief, but  must produce evidence  which would  be admissible  at          trial  to make out the requisite issue  of material fact."  Kelly                                                                      _____          v.  United  States, 924  F.2d 355,  357  (1st Cir.  1991); accord              ______________                                         ______          United States v. One Lot of U.S. Currency ($68,000), 927 F.2d 30,          _____________    __________________________________          32  (1st Cir. 1991); Garside v. Osco  Drug, Inc., 895 F.2d 46, 50                               _______    ________________          (1st Cir. 1990); Mack, 871 F.2d at 181.                             ____                    The only  material  of evidentiary  weight produced  in          plaintiff's  opposition  to the  summary  judgment  motion was  a          partial  transcript of her deposition   a deposition in which she          acknowledged the passage of  time but failed to explain  it away.          Her counsel's arguments, contained in a memorandum filed with the          district  court, did not suffice to bridge this chasm; after all,          proffers  that depend  not  on  verified  facts  but  "on  arrant          speculation,  optimistic surmise, or farfetched inference" cannot          forestall summary  judgment.  Kelly,  924 F.2d at  357.  We  have                                        _____                                          22          warned,  time and again,  that "the decision  to sit idly  by and          allow the summary  judgment proponent to configure  the record is          likely to prove fraught with consequence."  Id. at 358.  So it is                                                      ___          here.    Because   the  record  evinced  no  credible  basis  for          concluding  anything  other  than  that  the  prescriptive period          expired  due  to       some  unexplained  cause  (not   excluding          appellant's inattentiveness), summary judgment  was appropriately          entered.          IV.  THE REFUSAL TO RETRACT          IV.  THE REFUSAL TO RETRACT                     In a last-ditch effort  to salvage her case, appellant          assigns  error  to the  lower court's  denial  of her  motion for          reconsideration.      In   this   instance,   the   motion    for          reconsideration added one  new ingredient  to the mix:   a  sworn          statement from  appellant's cousin,  Nilda Fragoso de  Rodriguez.          The  affidavit relates  that Nilda  accompanied appellant  to the          lawyer's office in  December, 1984;  that the  lawyer wanted  the          decedent's medical records so that he could have them scrutinized          by  an expert;  that Nilda  requested the  records from  Doctor's          Hospital in January of 1985; that  she returned twice more to the          hospital (on  unspecified dates)  before receiving the  record on          her third trip  (the date of which is also unspecified); that she          took the record  to the attorney;  that, later,  on a date  again          unspecified,  she returned to  the hospital  to get  "a certified          copy of the full record"; that, after a few telephone inquires on          unspecified dates, she received the complete record; and that she          delivered it  to  the lawyer  the  same day  (date  unspecified).                                          23          Bereft,  as it is, of  even approximate dates,  this affidavit is          manifestly insufficient to  turn the  tide.  It  shows, at  most,          desultory   efforts  inadequate   to  demonstrate   diligence  in          obtaining the records;  and, moreover, it wholly fails to suggest          any good reason why appellant  and her attorney sat  complacently          by for so long a period of time.                    Where, as here, a motion for  summary judgment has been          granted,  "the  district  court  has  substantial  discretion  in          deciding  whether to reopen the proceedings in order to allow the          unsuccessful  party  to introduce  new  material or  argue  a new          theory."  Mackin v. City of Boston, 969 F.2d 1273, 1279 (1st Cir.                    ______    ______________          1992), cert. denied, 113 S. Ct. 1043 (1993); accord Mariani-Giron                 _____ ______                          ______ _____________          v. Acevedo-Ruiz, 945 F.2d  1, 3 (1st Cir. 1991); United States v.             ____________                                  _____________          5 Bell  Rock Road, 896 F.2d  605, 611 (1st Cir.  1990); Appeal of          _________________                                       _________          Sun Pipe Line Co., 831 F.2d 22, 25 (1st Cir. 1987), cert. denied,          _________________                                   _____ ______          486  U.S. 1055  (1988).   The trial  court's decision  on such  a          motion will be overturned only if the appellant convinces us that          the court committed a clear abuse of discretion.  See Mackin, 969                                                            ___ ______          F.2d at 1279; Sun Pipe  Line, 831 F.2d at 25.  Given  three major                        ______________          inadequacies in the  motion to reconsider    appellant offered no          excuse for the belated production of her cousin's  affidavit; the          affidavit  itself raised  more  questions than  it answered;  and          neither appellant nor her attorney, obviously the  key players in          the drama, submitted affidavits explaining what had transpired or          why  they had allowed  it to transpire    the  district court was          justified  in refusing  to exercise  its discretion  to extricate                                          24          appellant from her self-dug hole.                    The  provisional  stay  is  dissolved,  the  appellees'                    _______________________________________________________          motion  for dismissal of the appeal, a statutory stay, or related          _________________________________________________________________          relief is denied,  and the judgment below is affirmed.   Costs to          _____________________________________________________    ________          appellees.           _________                                                     25
