
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-1997                          RUBEN O. GIERBOLINI-ROSA, ET AL.,                               Plaintiffs, Appellants,                                         v.                            BANCO POPULAR DE PUERTO RICO,                                Defendant, Appellee.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Jose Antonio Fuste, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                          Campbell, Senior Circuit Judge,                             and Lagueux, District Judge.                                ____________________            Benny Frankie Cerezo for appellants.            Jay                 A.                    Garcia-Gregory, with whom   Ricardo                                                        L.                                                           Ortiz and  Fiddler,       Gonzalez & Rodriguez were on brief for appellee.                                 ____________________                                   August 18, 1997                                ____________________                                  Of the District of Rhode Island, sitting by designation.                      CAMPBELL,                                Senior Circuit Judge                                                   . This civil action is            a related, non-core proceeding under 28 U.S.C. S 1334(b).            Plaintiffs-appellants Ruben O. Gierbolini-Rosa, Carmen Nidia            Gierbolini-Marrero, and their four children, Ruben Oscar            Gierbolini-Gierbolini, Carlos Ruben Gierbolini-Gierbolini,            Ricardo Jose Gierbolini-Gierbolini, and Nirin Mirnel            Gierbolini-Gierbolini, (collectively referred to as the            "Gierbolinis" or the "appellants") brought suit against Banco            Popular de Puerto Rico ("BPPR") under Puerto Rico's General            Tort Statute, Article 1802 of the Puerto Rico Civil Code, see            31 L.P.R.A. S 5141 (1991),  for damages allegedly caused by            defamatory statements made to the Puerto Rico Treasury            Department and the United States Bankruptcy Court. A year            later, BPPR filed its "Motion Requesting Entry of Summary            Judgment Dismissing the Complaint." The United States District            Court for the District of Puerto Rico issued an Opinion and            Order, published as                                Gierbolini Rosa                                               v. Banco Popular de Puerto                                            1.   Section 1334(b) provides as follows:                 "(b) Notwithstanding any Act of Congress that confers            exclusive jurisdiction on a court or courts other than the            district courts, the district courts shall have original but            not exclusive jurisdiction of all civil proceedings arising            under title 11, or arising in or related to cases under title            11."            28 U.S.C. S 1334(b) (West 1993).             2.   Section 5141 states, in relevant part, as follows:                 "A person who by an act or omission causes damage to            another through fault or negligence shall be obliged to repair             the damage so done."            31 L.P.R.A. S 5141 (1991).                                          -2-                                          2            Rico, 930 F. Supp. 712 (D.P.R. 1996), and separate judgment on            June 28, 1996, dismissing the complaint. The court later            entered an amended judgment in compliance with Fed. R. Civ. P.            54(b), stating that there was no just reason for further delay            and that it was in the interest of justice that the judgment            entered on June 28, 1996, be treated as a final judgment for            purposes of appeal.                      "We review the district court's grant of summary            judgment de novo, and will uphold that determination if the            record, viewed in the light most favorable to the nonmoving            party, shows that there is no genuine issue as to any material            fact and that the moving party is entitled to a judgment as a            matter of law."  Daniels-Recio v. Hospital del Maestro, Inc.,            109 F.3d 88, 92 (1st Cir. 1997) (citations omitted) (internal            quotation marks omitted). Having carefully considered the            arguments, the briefs and the record, we affirm the judgment of            the district court for substantially the same reasons set out            in its Opinion and Order, adding the following.                      1. Appellants argue that the district court erred in            applying the common law privilege codified in Section 4 of the            Libel and Slander Act of 1902,                                           see 32 L.P.R.A. S 3144 (1968),                                            3.   Section 4 of the Libel and Slander Act of 1902 provides as            follows:                 "A publication or communication shall not be held or            deemed malicious when made in any legislative or judicial            proceeding or in any other proceeding authorized by law. A            publication or communication shall not be presumed to be            malicious when made:                                         -3-                                          3            to their defamation action brought under the provisions of            Puerto Rico's General Tort Statute, Article 1802 of the Puerto            Rico Civil Code, see note 2, supra.                      For this contention, appellants rely mainly upon            Romany v.                      El Mundo, Inc.                                   , 89 P.R.R. 592 (1963), and                                                               Ojeda Ojeda            v.               El Vocero, Inc.                             , 94 J.T.S. 131 (1994). However, these cases            do not hold that an action for defamation brought under Article            1802 may not be subject to essentially the same privilege            codified in the Libel and Slander Act of 1902. Rather, they            merely indicate that a libel and slander action brought            pursuant to the Libel and Slander Act of 1902 and a defamation            action brought under Article 1802 of the Puerto Rico Civil Code            are separate and independent causes of action with distinct            elements.                      Citing the Puerto Rico Supreme Court's opinion in            Rodriguez v.                         El Vocero, Inc.                                       , 94 J.T.S. 13 (1994), the district            court construed Puerto Rico law as maintaining that, "though            [the action] arises under Section [sic] 1802 of the Civil Code,            defendant may claim the traditional defense of privilege as it            might under the Libel and Slander Act of 1902", that being a                                                 First. In the proper discharge of an official duty.                 Second. In a fair and true report of a judicial,            legislative, official or other proceeding, or of anything said            in the course thereof.                 Third. To a Commonwealth official upon probable cause            with the intention of serving the public interest or of            securing the redress of a private wrong."            32 L.P.R.A. S 3144 (1968).                                         -4-                                          4            "traditional defense[] that ha[s] always been available."            Gierbolini                         Rosa, 930 F. Supp. at 717. We agree with the            court's interpretation, which is supported in two other            decisions of the Supreme Court of Puerto Rico, namely,                                                                  Porto v.            Bentley                     Puerto                            Rico,                                  Inc., 92 J.T.S. 175 (1992), and  Jimenez            Alvarez v. Silen Maldonado, 92 J.T.S. 95 (1992).                      In Porto, a former employee, Ivan Porto, and his            wife, personally and on behalf of the conjugal partnership and            their minor children, sued the company, claiming damages for            "allegedly false, slanderous and libelous accusations" made            against him at the time of his discharge.  Porto, P.R. Offic.            Trans. (majority opinion) at 2-3. He alleged that, in a letter            of discharge, he was falsely accused of having unlawfully            appropriated the official company vehicle.     Id. (majority            opinion) at 3. Porto's action rested upon Article 1802 of the            Puerto Rico Civil Code, as both parties to the suit were            "private persons."  Id. (majority opinion) at 6; see also id.            (concurring opinion) at 1. The Supreme Court of Puerto Rico            explained: "[i]n our jurisdiction the liability rule based on            negligence [governs] all libel tort suits brought by private            persons." Id. (majority opinion) at 8 (citations omitted);                                                                       see            also id. (concurring opinion) at 2. Nevertheless, the   Porto            Court made reference to the common law privileges codified in            Sections 4 and 5 of the Libel and Slander Act of 1902, and            applied "the qualified privilege for promoting the free flow of                                         -5-                                          5            communication between employer and employee" to defeat the            cause of action for defamation. Id. (majority opinion) at 16-            21; see also 32 L.P.R.A. S 3145 (1968).                      Even more in point is the Puerto Rico Supreme Court's            decision in  Jimenez                                   Alvarez, where one of the defendants,            Baldomero Roig Velez, appealed from a partial judgment that            dismissed his counterclaim for damages allegedly caused by            certain defamatory, false and libelous allegations negligently            made in the plaintiff's verified complaint.  Jimenez Alvarez,            P.R. Offic. Trans. at 1. Writing for the Supreme Court of            Puerto Rico, Justice Naveira de Rodon framed the issue            presented for review as one of defamation, identifying the            three sources of a defamation claim in Puerto Rico: (1) the            Constitution of the Commonwealth of Puerto Rico,                                                            (2) the Libel            and Slander Act of 1902, and (3) Article 1802 of the Puerto            Rico Civil Code. Id. at 3-4. Nonetheless, Justice Naveira de                                            4.   Section 5 of the Libel and Slander Act of 1902 states as            follows:                      "Malice shall be presumed to exist in any injurious            communication or writing made without justifiable motive and            addressed to any person other than to a relative within the            third degree, or to a person whom the author has under his            guardianship or                            when said communication passes between persons            having business in partnership, or other similar association                                                                       ."            32 L.P.R.A. S 3145 (1968) (emphasis added).            5.   Article II, Section 8 of the Constitution of the            Commonwealth of Puerto Rico provides as follows:                 "Every 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, S 8.                                         -6-                                          6            Rodon noted that the common-law privilege generally applicable            to judicial proceedings "covers anything that may be said with            regard to the controversy, whether it be in the pleadings, in            affidavits, or in open court."   Id. at 4 (citation omitted)            (emphasis added). In Puerto Rico, Justice Naveira de Rodon            continued, Section 4 of the Libel and Slander Act of 1902            recognizes a similar kind of privilege, and, for purposes of            that privilege, a complaint shall be deemed to be "'[a]            publication or communication . . . made in [a] . . . judicial            proceeding.'"  Id. at 5; see also 32 L.P.R.A. S 3144 (1968).            The court concluded that the common law privilege codified in            Section 4 of the Libel and Slander Act of 1902, regarding            communications in a legislative, judicial or any other            proceeding authorized by law, barred the tort action for            defamation raised in Roig Velez's counterclaim.  Id. at 5, 7.                      We, therefore, agree with the district court that the            privilege applies in the instant case to immunize BPPR's            conduct in filing the informative return before the Puerto Rico            Treasury Department and the proof of claim before the United            States Bankruptcy Court. The informative return, which BPPR,            as payor, had a legal obligation to file with the Puerto Rico            Treasury Department, qualifies as "[a] publication or            communication . . . made . . . in [a] . . . proceeding            authorized by law." 32 L.P.R.A. S 3144 (1968);      see  also            Gierbolini                        Rosa, 930 F. Supp. at 715-16. The proof of claim                                         -7-                                          7            is, as the district court pointed out, in the nature of an            ordinary civil pleading, and thus forms part of a "judicial            proceeding." 32 L.P.R.A. S 3144 (1968);  see also  Gierbolini            Rosa, 930 F. Supp. at 716. More specifically, the informative            return and the proof of claim fall, as the district court            found, within the scope of Section 4's first and third            provisos, respectively.    See 32 L.P.R.A. S 3144 (1968);            Gierbolini                        Rosa, 930 F. Supp. at 718. We need not decide            whether the privilege is an absolute or a qualified privilege            because, even if it is only qualified, there is no evidence of            malice or bad faith on the part of BPPR that would defeat the            claim of privilege in this case.  See Gierbolini Rosa, 930 F.            Supp. at 718.                      2. Appellants assert that the district court erred in            finding that they had offered insufficient evidence to            establish a causal nexus between the alleged defamatory conduct            and the claimed mental and moral suffering. The appellants            further insist that the district court erred in determining            that they had presented insufficient evidence to substantiate            the nature and the degree of their alleged damages. The three            basic elements of a cause of action under Article 1802 of the            Puerto Rico Civil Code are as follows: (1) a guilty or            negligent act or omission, (2) a causal link between the act or            omission and the damages, and (3) damages. 31 L.P.R.A. S 5141            (1991); see  also  Gierbolini                                             Rosa, 930 F. Supp. at 717                                         -8-                                          8            ("Plaintiff must show that defendant's wrongful or negligent            actions actually and proximately caused plaintiff certain and            quantifiable damages." (citations omitted)); Rodriguez, P.R.            Offic. Trans. at 7; Ojeda                                       Ojeda, P.R. Offic. Trans. at 2, 5.            Even assuming arguendo that BPPR's conduct was negligent and            defamatory in the instant case, we nonetheless agree with the            district court that there was insufficient proof of causation            and damages for the complaint to withstand a summary judgment            challenge.  See Gierbolini Rosa, 930 F. Supp. at 718-19.                      The appellants contend that the district court's            determination on this point is at odds with the position the            same judge took in                               Pages v.                                        Feingold, 928 F. Supp. 148 (D.P.R.            1996). The two cases are, however, distinguishable. In Pages,            there was an unmistakable causal connection between Feingold's            defamatory conduct and Pages' reputational damage. No such            connection exists in the case at hand between BPPR's filing of            the informative return and proof of claim and the Gierbolinis'            alleged mental and moral suffering.  See Gierbolini Rosa, 930            F. Supp. at 718-19. And, unlike  Pages, where not only mental            and moral, but also financial and reputational damages were            established, the evidence presented here in support of damages            did not go beyond the most conclusory allegations. See                                                                    id. at            719.                      3. Finally, the appellants contend that the district            court erred in failing to consider the affidavit of attorney                                         -9-                                          9            William Pagan submitted in support of "Plaintiffs' Opposition            to Defendant's Motion Requesting Entry of Summary Judgment            Dismissing the Complaint and for Order Requiring Defendant to            Pay Attorney's Fees and Costs." The appellants maintain that            this affidavit contained facts indicating the publication or            communication of an additional defamatory statement outside the            confines of a privileged legislative, judicial or other            proceeding authorized by law.                      The Gierbolinis accompanied their opposition to            BPPR's motion for summary judgment with a "Statement of            Material Facts as to Which There Exists a Genuine Issue to be            Tried." In the statement, the Gierbolinis asserted, for the            first time, that BPPR's "false and public accusations were not            exclusively made through the Proof of Claim and [a related            motion]" filed with the United States Bankruptcy Court, and            that BPPR, through employees at the Coamo branch, "slandered            and destroyed Carmen Gierbolini's reputation." The Pagan            affidavit was cited as supporting these assertions. In that            affidavit, the affiant stated that a BPPR auditor informed him            that Gierbolini-Marrero had been under investigation and would            possibly be charged with fraud and defalcation.                                            6.   The Pagan affidavit provides, in pertinent part, as            follows:                 "2. That sometime during the month of July 1992 Gilberto            Canales an Auditor for Banco Popular de Puerto Rico informed me            that Carmen N. Gierbolini had been the subject of an            investigation and would posibly [sic] be accused of fraud and            defalcation."                                        -10-                                         10                      We do not believe that the district court was            required to consider the new incident mentioned in the Pagan            affidavit for purposes of determining BPPR's motion for summary            judgment. The conduct which the complaint alleges in paragraph            12 to be "tortious, wrongful, negligent and culpable" under            Article 1802 of the Puerto Rico Civil Code is set out in            paragraphs 9, 10 and 11 of the complaint. These describe            BPPR's filing of the informative return before the Puerto Rico            Treasury Department and the proof of claim and a related motion            before the United States Bankruptcy Court. No mention is made            of a claim of slander based on a statement by a BPPR auditor.                      The Gierbolinis' "Answer to Interrogatories"            reaffirmed that they based their charges of defamation on            BPPR's filing of the informative return, the proof of claim and            a related motion. In their answers to Interrogatory No. 17,            addressed to Gierbolini-Marrero, and Interrogatory No. 11,            addressed to Gierbolini-Rosa, both Gierbolini-Marrero and            Gierbolini-Rosa identify BPPR's proof of claim and a related            motion as the basis for their allegation in paragraph 12 of the            complaint. The only other answers that identify any                                            7.   Interrogatories No. 17 and No. 11 provide, in pertinent            part, as follows:                 "State the basis for your allegation in paragraph 12 of            the Complaint that BPPR 'falsely and publicly' accused you of            'embezzlement and defalcation'."                 Gierbolini-Marrero's answer to Interrogatory No. 17            states:                                        -11-                                         11            defamatory conduct on the part of BPPR are those responding to            Interrogatory No. 15, served on Gierbolini-Marrero, and            Interrogatory No. 9, served on Gierbolini-Rosa, regarding the            alleged falsity of the informative return filed with the Puerto            Rico Treasury Department.                      Neither the complaint, nor the interrogatory answers,            nor, for that matter, the "Preliminary Pretrial Order", mention                                                 "Proof of claim filed by BPPR on January 12, 1993 and            Motion filed by BPPR on March 8, 1993 both in B-92-05458."                 Gierbolini-Rosa's answer to Interrogatory No. 11 states:                 "Proof of claim filed by the BPPR on January 12, 1993 and            Motion field [sic] by BPPR on March 8, 1993, both in the            bankruptcy proceeding."            8.   Interrogatories No. 15 and No. 9 provide, in pertinent            part, as follows:                 "State the basis for your allegation in paragraph 9 of the            Complaint that the report filed by BPPR with the Treasury            Department was false and, specifically, was filed with the            malicious intent to harass plaintiffs."                 Gierbolini-Marrero's answer to Interrogatory No. 15            states:                 "BPPR filed form 480.6 (Informative Return) with the            Treasury Department reporting having paid me the amount of            $95,387.22 during 1992 as deferred compensation. BPPR knew            that that was false. The obvious intention was to provoke a            tax investigation of our return by the Treasury Department            since I could not have reported that income in my 1992 tax            return because I never received the payment."                 Gierbolini-Rosa's answer to Interrogatory No. 9 states:                 "BPPR filed form 480.6 Informative Return with the            Treasury Department reporting having paid my wife the amount of            $95,387.22 during 1992 as deferred compensation. BPPR knew            that the report was false. The obvious intention was to            provoke a tax investigation of our return by the Treasury            Department since we could not have reported that income in our            1992 return because my wife never received such payment."                                        -12-                                         12            any other allegedly defamatory acts. There is no allegation or            assertion of fact in any of these documents indicating that one            of the acts for which recovery is sought consists of a BPPR            auditor telling someone in the community of Coamo that            Gierbolini-Marrero had been under investigation and would            possibly be charged with fraud and defalcation. The appellants            contend that that incident was only discovered afterwards, at            which time it was promptly brought to the district court's            attention through the Pagan affidavit. Appellants, however,            did not move to amend their complaint to charge this alleged            conduct as an additional defamatory act by BPPR. The district            court and BPPR were not required to shoot at a moving target.            They were entitled to proceed on the assumption that the            defamation action rested on the claims in plaintiffs' complaint            as confirmed in their sworn answers to interrogatories.                      Affirmed.                                        -13-                                         13
