

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-1903

                   JOSE M. APONTE, ET AL.,

                    Plaintiffs, Appellees,

                              v.

   MARTHA TABARES, D/B/A MANHATTAN HOLDING COMPANY, ET AL.,

                    Defendants, Appellees.

                                                                                      

 DELIA ESTHER RIVERA-PEREZ, D/B/A MANHATTAN HOLDING COMPANY,
          D/B/A TRADING CAPITAL INTERNATIONAL CORP.,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jose Antonio Fuste, U.S. District Judge]                                                                 

                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Stahl and Lynch, Circuit Judges.                                                          

                                         

Carlos M. Mangual Lopez on brief for appellant.                                   
Frank D. Inserni on brief for appellees.                            

                                         

                         May 8, 1997
                                         

          Per  Curiam.    Delia  E.  Rivera-Perez  ("Rivera")                                 

appeals from a judgment entered after a jury verdict in favor

of  plaintiffs on  their  fraud claims.    We have  carefully

considered her  arguments on appeal and  determined that they

are without merit.

          I.  Subject Matter Jurisdiction                                                     

          Appellant challenges the  federal district  court's

subject  matter  jurisdiction on  the ground  that plaintiffs

failed  to satisfy the  jurisdictional amount  in controversy

requirement.   Limits on subject matter  jurisdiction are not

waivable and, therefore, may be raised at any time.  15 James

Wm.  Moore, et al., Moore's Federal Practice   102.13 (3d ed.                                                        

1997).     "For  the   purposes  of   establishing  diversity

jurisdiction,  the amount  in  controversy  is determined  by

looking to  the circumstances at  the time  the complaint  is

filed."  Coventry Sewage  Assocs. v.  Dworkin Realty  Co., 71                                                                     

F.3d  1, 4 (1st  Cir. 1995).   Therefore, "the jurisdictional

amount  test  is  not  dependent  upon  the  amount  actually

recovered  by plaintiff."  14A Charles  A. Wright,  Arthur R.

Miller &amp; Edward  H. Cooper, Federal Practice and  Procedure                                                                         

3702 at 31 (1985).

          In  a  case like  this  one where  a  defendant has

challenged  plaintiffs' allegations concerning  the amount in

controversy, "the plaintiff  must produce sufficient evidence

to meet the requirements  of the 'legal certainty' test  by a

                             -2-

preponderance of the  evidence supported by competent  proof.

'Competent proof' has  been defined as proof to  a reasonable

probability  that jurisdiction  exists."  15 Moore's  Federal                                                                         

Practice,  supra,   102.107[1].   Under  the legal  certainty                            

test, plaintiffs must establish "that it does not appear to a                                                             

legal certainty  that the  claim is below  the jurisdictional                                                     

minimum." Id.,  102.106[1].                         

          We assume  for purposes  of this appeal  that these

plaintiffs'  claims  cannot  be  aggregated  for purposes  of

calculating  the requisite  jurisdictional  amount.   See  15                                                                     

Moore's Federal  Practice, supra,   102.108[3][b].   We  have                                            

included claims  for damages  for pain  and suffering  in the

calculation.  Pain and suffering damages are recognized under

Puerto  Rico tort and contract law.  See Serrano v. Nicholson                                                                         

Nursery,  Inc., 844 F. Supp.  73, 76 (D.  Puerto Rico, 1994).                          

We   conclude  that   each  plaintiff   met  his   burden  of

demonstrating  that it does  not appear to  a legal certainty

that his claim is below $50,000.

          II.  Judgment as  a Matter of Law  and Failure                                                                    
     to        State a Claim                                        

          Appellant argues  that the district  court erred in

denying  her motion  pursuant  to Fed.  R.  Civ. P.  50,  for

judgment  as a  matter  of law  where  "there is  no  legally

sufficient evidentiary  basis for  a reasonable jury  to find

for that  party on that issue."  In reviewing the denial of a

motion for judgment as a matter of law,  we review the record

                             -3-

to  determine  whether it  "provides an  adequate evidentiary

basis  for the district court's decision to submit the matter

to the jury."  Santiago Hodge v. Parke Davis &amp;  Co., 909 F.2d                                                               

628,  634 (1st  Cir. 1990).   Without the  trial transcripts,

which appellant has not provided, this court cannot make that

determination.    Therefore,  appellant is  not  entitled  to

relief on the ground that the district court erred in denying

her motion for  judgment as  a matter of  law.1  See  Valedon                                                          1              

Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806                                                                    

F.2d 1128, 1135 (1st Cir. 1986) (this court will not review a

claim   of  error  if  appellant  has  failed  to  include  a

transcript  of the  pertinent  proceedings in  the record  on

appeal).

          Appellant argued  in her motion to  dismiss, as she

does  on appeal, that the  complaint failed to  state a claim

against her for fraud or breach of contract.  She argued that

she  was not  a  party  to  the  contracts  between  MHC  and

plaintiffs  and,  therefore, was  not  liable  thereon.   She

further  contended   that  "in  the  absence  of  contractual

obligation  a  party cannot  be  charged  with  fraud."   The

elements  of a  fraud claim  under Puerto Rico  law are  1) a

false   representation   by  defendant,   (2)the  plaintiff's

                                                    

   1  Similarly, Rivera's claim that, as a matter of law, co-               1
plaintiff Carlos  Fernandez "did not  have a cause  of action
against  Delia Rivera  based  on his  testimony [at  trial],"
cannot be reviewed without the trial transcripts.

                             -4-

reasonable   and  foreseeable  reliance  thereon,  injury  to

plaintiff from  his reliance,  and (4) intent  to defraud  by

plaintiff.  See Wadsworth, Inc.  v. Schwarz-Nin, 951 F. Supp.                                                           

314, 323  (D. Puerto Rico 1996).   The complaint sufficiently

alleged each of the required elements.

          III.  Attachment                                      

          We affirm  the district court's order  dated August

1, 1995 essentially for  the reasons stated therein.   We add

only the following  comments concerning appellant's arguments

on  appeal that the bond amount was insufficient and that the

hearing was inadequate because no evidence was introduced.  

          Under Rule 56.3  of the Puerto Rico  Rules of Civil

Procedure, P.R.Laws Ann. Tit.  32, App. III, the amount  of a

bond to support an ex parte attachment must be "sufficient to

secure  all damages arising from the remedy."  P.R.R. Civ. P.

56.3. The  Supreme Court  of Puerto  Rico has cautioned  that

"the  amount  [of  an  attachment  bond]  should  not  be  so

excessive as  to thwart  the plaintiffs' purpose  of securing

the  effectiveness of  the judgment  to be  timely rendered."

Conjugal  Partnership v.  Rodriguez, 116  D.P.R. 463  (1985).                                               

Moreover,  "the amount of the bond would always be subject to

change  if the  defendant  could  show  that the  damage  the

attachment causes  him exceeds the  amount of the  bond." Id.                                                                         

Appellant did  not object to the amount of the bond until the

hearing  requested  by plaintiffs  and  she did  not  seek to

                             -5-

introduce any evidence to demonstrate that  the amount of the

bond  was  inadequate to  cover  potential  damages from  the

attachment.   Under these circumstances,  the district  court

did not err in setting the amount of the bond at $20,000.

          Appellant argues that  the post-attachment  hearing

was inadequate because it was not a full evidentiary hearing.

From the minutes of  the hearing, it appears that  Rivera did

not request the opportunity to present evidence  or object to

plaintiffs' failure  to present evidence.   Rule 56.5  of the

Puerto  Rico Rules of Civil Procedure does not require a full

evidentiary hearing.  Cf. HMG  Property  Investors v.  Parzue                                                                         

Indus.  Rio Canas, 847 F.2d 908, 914 (1st Cir. 1988) (holding                             

that  Rule 56.2 "requires notice and a fair chance to marshal

supporting facts  and theories -- nothing  more").  Appellant

still  has not  explained  what evidence  ought to  have been

presented  and how it would  have changed the  outcome of the

attachment hearing.  

          The district  court order affirming  the attachment

order is affirmed.   The district court judgment in  favor of                             

plaintiffs dated June  10, 1996,  is affirmed.   See Loc.  R.                                                                

27.1.

                             -6-
