
USCA1 Opinion

	




          January 4, 1993   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________          No. 92-1658                         MIGUEL ANGEL CHAPARRO-FEBUS, ET AL.,                               Plaintiffs, Appellants,                                          v.                       INTERNATIONAL LONGSHOREMEN ASSOCIATION,                                 LOCAL 1575, ET AL.,                                Defendants, Appellees.                                _____________________                                     ERRATA SHEET          The opinion of this Court issued on December 31, 1992, is amended          as follows:               On  page  3,   line  2  of  first  full  paragraph,  replace          "independence" with "independent".          December 31, 1992 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                  ____________________        No. 92-1658                         MIGUEL ANGEL CHAPARRO-FEBUS, ET AL.,                               Plaintiffs, Appellants,                                          v.                       INTERNATIONAL LONGSHOREMEN ASSOCIATION,                                 LOCAL 1575, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Emmalind Garcia Garcia for appellants.            ______________________            Jose G. Fagot-Diaz with  whom Ramirez &  Ramirez was on brief  for            __________________            __________________        appellee Puerto Rico Maritime Shipping Authority.            Rafael Cuevas Kuinlam with whom Cuevas  Kuinlam & Bermudez was  on            _____________________           __________________________        brief for appellee Puerto Rico Marine Management, Inc.            Nicolas Delgado Figueroa for  appellee International  Longshoremen            ________________________        Association, Local 1575.                                 ____________________                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                      CAMPBELL,  Senior  Circuit   Judge.     Plaintiffs,                                 _______________________            appellants are  sixteen  mechanics employed  by  Puerto  Rico            Marine  Management, Inc.  ("PRMMI")  who are  members of  the            International  Longshoremen  Association, Local  1575 ("Local            1575").  They sued PRMMI and Local 1575, under section 301 of            the Labor Management Relations Act ("LMRA"), 29 U.S.C.   185,            in  the  United States  District  Court for  the  District of            Puerto  Rico alleging  that PRMMI  had broken  its collective            bargaining  agreement  with  Local 1575  ("Agreement");  that            Local 1575 had  breached its duty  of fair representation  by            arbitrarily   agreeing  to   changes  which   violated  their            seniority  rights under  the Agreement;  and that  Local 1575            further breached its duty  of fair representation by refusing            to submit  plaintiffs' claims  against PRMMI to  the internal            grievance  procedure  and   arbitration  established  by  the            Agreement.    The  Puerto  Rico  Maritime Shipping  Authority            ("PRMSA") was also  named as  a defendant and  alleged to  be            plaintiffs' employer.  The district court dismissed the claim            against PRMSA for lack of subject matter jurisdiction, denied            plaintiffs' request for a preliminary injunction, and granted            summary  judgment in  favor  of PRMMI  and  Local 1575.    We            affirm.                                          I.                                          I.                      PRMSA,  which is  also known  as "Autoridad  de las            Navieras"  or  simply  "Navieras,"  is  a  government  agency                                         -3-            created  by  the  Commonwealth  of  Puerto Rico  in  1974  to            facilitate maritime transportation of cargo and passengers to            and  from Puerto  Rico.   23  L.P.R.A.    3051, et  seq.   To                                                            ________            effectuate   this  purpose,  Puerto  Rico  purchased  several            shipping  companies   and  authorized  PRMSA  to  enter  into            contracts with private enterprises  for the management of its            operations.   Id.   3055.   PRMSA was additionally authorized                          ___            to create subsidiary corporations.  Id.   3056.                                                 ___                      In 1976, PRMSA entered  into a contract with PRMMI,            then   an   independent  Delaware   corporation,   to  manage            longshoring  services for it.  Two years later PRMSA acquired            PRMMI and converted it into a subsidiary of PRMSA.   In March            of  1985,  PRMSA  sold  its  stock  in  PRMMI  to  a  private            corporation, TNT  Containerships, Inc.   At that  time, PRMSA            and  PRMMI entered  into  a contract  giving PRMMI  exclusive            control over the daily longshoring operations.1                      PRMMI began to encounter serious  economic problems            in 1990.  At  that time PRMMI provided two  different systems            for loading and unloading  vessels:  the ro-ro  system, which            operates from small  ships with ramps; and the  lo-lo system,            which operates from larger  ships by means of cranes.   Local            1575  then,  as now,  represented  the  employees managed  by            PRMMI,  under a collective  bargaining agreement  between the                                            ____________________            1.  The  relationship  between  PRMSA and  PRMMI  is  further            described  in our  opinion,  Rodriguez-Garcia v.  Davila, 904                                         ________________     ______            F.2d 90, 93 (1st Cir. 1990).                                         -4-            two parties.  PRMMI  notified Local 1575 of its  intention to            eliminate the ro-ro  fleet.  A series of  bargaining meetings            between PRMMI and Local 1575 were held between April and June            of  1990.  Eventually a stipulation was signed in which PRMMI            agreed  not  to carry  out  any  more reductions  during  the            remaining  life of the Agreement and  to give work preference            to  employees  with more  seniority  in  accordance with  the            seniority clause of the  Agreement and Act No. 80 of 1976, 29            L.P.R.A.   185.2                      Article  I    C  of  the  Agreement, which  governs            seniority rights, states the following:                      Seniority  is  defined as  the continuous                      time   of  service  in   the  Company  by                      department  (Warehouse and  Car Division,                      Maintenance,  Marine)  from  the date  on                      which the person began  as an employee in                      said Company within the contracting unit,                      provided that the  employee is  efficient                      and complies with the conditions  of this                      Agreement  and the  rules of  the Company                      for  which he  works, and  except in  the                      Marine Department that seniority shall be                      by gangs and not  by the seniority of the                      employee within the contracting  unit and                      in   the   Maintenance  Department   that                      _________________________________________                      seniority  shall   be  by  classification                      _________________________________________                      within  the  same department.   (emphasis                      ____________________________                      added).               Paragraph 96 of Article VI, entitled "General Conditions," is            an administrative provision which also mentions seniority:                                            ____________________            2.  Act No.  80 requires reductions  in workforce to  be made            according to seniority order by  occupational classification.            29 L.P.R.A.   185c.                                         -5-                      PRMMI shall keep  separate the LO/LO  and                      RO/RO seniorities, and in the receipt and                      dispatch may use a RO/RO or LO/LO line to                      receive  or  dispatch  when  the  job  so                      warrants  it.   In the  maintenance area,                      the   employer   shall  keep   said  area                      separate,  except that  he may  pass work                      from one  area to another,  provided that                      the situation so warrants.3            Pursuant  to Paragraph 96, work  as well as  equipment in the            maintenance department have in the past been transferred from            lo-lo to ro-ro.                      PRMMI  maintains two  separate seniority  lists for            lo-lo  and  ro-ro employees.    These  lists determine  which            employees are called to work on a daily basis.  Each morning,            supervisors call the personnel from each list in the order in            which  they appear on the  list.  Regular  employees, who are            guaranteed forty hours  of work each week,  are called first.            If more personnel  is needed or  if some of the  regulars are            absent,  substitute employees, who  must appear  each morning            and  wait  to be  informed if  there  is available  work, are            called.                      On July 26, 1990, in response  to the sharp decline            in  work at  the  ro-ro  area  and  in  accordance  with  its                                            ____________________            3.  There  is some  confusion as  to whether  this clause  is            contained in paragraph 96 or paragraph 94 of Article VI.   An            exhibit  admitted during  the preliminary  injunction hearing            identifies the  material as  paragraph 94 and  contains minor            variations in  the English translation.   The district court,            however,  appears  to  have  adopted  a  previously  provided            certified translation of the material, which identified it as            paragraph 96.  For ease and clarity, we too will refer to the            clause as paragraph 96.                                         -6-            stipulation with Local 1575,  PRMMI examined the seniority of            its  regular mechanics  in the  maintenance department.   The            fifteen mechanics with the highest seniority, without  regard            to whether the mechanics were lo-lo or ro-ro employees,  were            kept  as regular  employees.   The rest  went into a  list of            substitute  employees.    Due  to the  changes,  three  ro-ro            mechanics in  the maintenance department were  transferred to            work  the  lo-lo  list  as  regular  lo-lo mechanics  in  the            maintenance department.                         Plaintiffs  are  sixteen  lo-lo  mechanics  in  the            maintenance  department.  As  a result of  the changes, three            plaintiffs  who  had  been   lo-lo  regular  employees   were            downgraded   to  substitute   employees.     Likewise,  those            plaintiffs who  were substitute mechanics were  downgraded by            the  formerly-regular  plaintiffs  who   became  substitutes.            Irrespective of the changes, all plaintiffs have continued to            work full time    albeit occasionally working night shifts               and to make the same amount of money as they did before their            status was altered .                      Plaintiffs contend that on  July 27, 1990, they met            with a Local 1575 delegate and a PRMMI official, who informed            them that  the union  and  company had  signed a  stipulation            agreeing  to  the  modifications.   On  August  1,  plaintiff            Chaparro  Febus spoke  with  the union's  vice-president, who            told Chaparro Febus there was nothing  he could do.  The next                                         -7-            day, plaintiffs contend that  they asked to see  Local 1575's            president  in  order to  persuade  him  to  file a  grievance            against the  company, and that  the president refused  to see            them.  Plaintiffs filed a written complaint with the union on            August  3.   On  August  27,  plaintiffs again  requested  in            writing  that  a  grievance  be  filed  against  PRMMI.   The            president of Local 1575 informed plaintiffs in a letter dated            September 5, 1990, that their complaint would be taken before            the Grievance Committee.                      Plaintiffs'  grievances, however, were not taken to            arbitration.    On January  20,  1991,  plaintiffs filed  the            present action  against PRMMI,  Local 1575,  and PRMSA.   The            district court dismissed the action against PRMSA for lack of            subject  matter  jurisdiction.    It  subsequently  denied  a            preliminary injunction and  granted PRMMI's and Local  1575's            motion  to dismiss, which the  court treated as  a motion for            summary judgment.  This appeal followed.                                         II.                                         II.                 A. Subject matter jurisdiction over PRMSA                    ______________________________________                 The district court dismissed plaintiffs'   301 complaint            against PRMSA for lack of subject matter jurisdiction because            PRMSA,  as a  political  subdivision of  the Commonwealth  of            Puerto   Rico,  is  specifically   excluded  from   the  term                                         -8-            "employer"  as  defined  by 29  U.S.C.     152(2).4   Section            152(2) of the LMRA provides in pertinent part the following:                      The term 'employer'  includes any  person                      acting  as  an  agent  or   an  employer,                      directly  or  indirectly,  but shall  not                      include the  United States or  any wholly                      owned  Government   corporation,  or  any                      Federal  Reserve  Bank, or  any  State or                      political subdivision thereof . . . .            29 U.S.C.   152(2).                        "Political  subdivisions"  within  the  meaning  of            section  152(2) are  "entities  that are  either (1)  created            directly by the  state, so  as to  constitute departments  or            administrative arms of the government, or (2) administered by            individuals who are responsible to public officials or to the            general electorate."   NLRB  v.  Natural Gas  Util. Dist.  of                                   ____      ____________________________            Hawkins County, 402  U.S. 600,  604-05 (1971).   PRMSA, as  a            ______________            "public corporation  and governmental instrumentality  of the            Commonwealth   of  Puerto  Rico"   that  is  administered  by            officials who are directly responsible to the Legislature and            the Governor, 29 L.P.R.A.   3054, meets either test.  As this                                            ____________________            4.  Although the district court expressly ruled after hearing            oral arguments  that  it lacked  subject matter  jurisdiction            over  PRMSA, the  deputy clerk  mistakenly issued  a judgment            dismissing  the complaint as to PRMSA for lack of in personam            jurisdiction.  The district court subsequently failed to rule            on   PRMSA's   Rule  60(a)   motion   to  correct   judgment.            Irrespective of  the district court's failure  to correct the            clerical  error,   a  party's  objection  to  subject  matter            jurisdiction can be raised at any  time, including on appeal.            E.g.,  Hallerman v. Hoffman, 966 F.2d 45, 47 (1st Cir. 1992).            ____   _________    _______            We  therefore address  PRMSA's  contentions with  respect  to            subject matter jurisdiction.                                         -9-            court has noted in dicta in the past, "it cannot be seriously            disputed that  PRMSA  is a  'political subdivision'  excluded            from the  definition of employer  under 29 U.S.C.    152(2)."            Puerto   Rico  Marine   Management,  Inc.   v.  International            _________________________________________       _____________            Longshoremen's  Ass'n, AFL-CIO,  540  F.2d 24,  25 (1st  Cir.            ______________________________            1976).                      Plaintiffs raise several arguments in an attempt to            avoid  this result.    In essence,  plaintiffs contends  that            under guarantor,  successor, or alter ego  theories, PRMSA is            their  employer.    Plaintiff's  arguments,  however,  cannot            overcome  the  simple  fact  that PRMSA,  being  a  political            subdivision of  the Commonwealth  of Puerto  Rico, is  not an            employer within  the meaning of section 152(2).   This court,            therefore, has no subject  matter jurisdiction over an action            under   301 of the LMRA, 29 U.S.C.   1851, against PRMSA.                      In  a  last  ditch  effort to  avoid  this  result,            plaintiffs  contend   that  the  district   court  erred   by            dismissing  the complaint  against PRMSA without  allowing an            amendment to include PRMSA  as a pendent party.   Plaintiffs,            however,  failed to  make  this request  before the  district            court.   The issue has accordingly been waived.  E.g., Boston                                                             ____  ______            Celtics Ltd. Partnership  v. Shaw, 908  F.2d 1041, 1045  (1st            ________________________     ____            Cir. 1990); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894                        ________    __________________            (1st Cir. 1979).                 B. Duty of Fair Representation                    ___________________________                                         -10-                      In a  hybrid suit for breach  of contract/breach of            duty of fair representation under section 301 of the LMRA, 29            U.S.C.   185, a  plaintiff must prove both that  the employer                                                  ____            broke the collective bargaining  agreement and that the union            breached its duty of fair representation, in order to recover            against either  the employer or  the union.   DelCostello  v.                                                          ___________            International  Brotherhood of  Teamsters, 462  U.S. 151,  165            ________________________________________            (1983);  Hines v. Anchor  Motor Freight, Inc.,  424 U.S. 554,                     _____    ___________________________            570-71  (1976).     A  union   breaches  its  duty   of  fair            representation   only   when   it   engages   in   arbitrary,            discriminatory, or bad faith conduct.  Air Line Pilots Ass'n,                                                   ______________________            Int'l  v. O'Neill, 111 S.  Ct. 1127, 1134-35  (1991); Vaca v.            _____     _______                                     ____            Sipes, 386 U.S. 171, 191 (1967).            _____                      In  the present  case,  plaintiffs  have failed  to            create a genuine issue  of material fact as to  whether Local            1575  acted in  an  arbitrary, discriminatory,  or bad  faith            manner.  All that appears is that  Local 1575, faced with the            possibility  of layoffs of its member-employees, entered into            a stipulation  with PRMMI  based upon a  perfectly reasonable            interpretation  of  the provisions  of  the  Agreement.   The            stipulation prohibited the layoff of any additional employees            for  the  life  of the  Agreement,  while  at  the same  time            guaranteeing  that any  changes would  be made  in accordance            with the  seniority of employees as defined in Article I,   C            of  the  Agreement.     This  section  states  that  "in  the                                         -11-            Maintenance   Department   . . . seniority   shall    be   by            classification within the same  department."  Thus, under the            plain  language of Article I,    C, seniority  is governed by            classification (i.e., mechanic)  within departments, and  not            by  lo-lo or  ro-ro designation.   Local  1575 understandably            interpreted Article   VI,  paragraph 96, which  appears under            the  heading of  "General Conditions"  and requires  PRMMI to            keep separate lo-lo and  ro-ro seniorities, as an operational            provision only.                      As  we  say,  this  seems  an  entirely   plausible            interpretation of the  Agreement.  Even if we  disagreed with            the interpretation     which we  do not    we  would still be            compelled  to affirm  the district  court's grant  of summary            judgment  as the  union's actions  were plainly  not "so  far            outside a  'wide range  of reasonableness'" as  to constitute            irrational or arbitrary  conduct.  Air Line Pilots Ass'n, 111                                               _____________________            S. Ct. at 1136  (quoting Ford Motor Co. v. Huffman,  345 U.S.                                     ______________    _______            330, 338 (1953)).  Moreover, plaintiffs have failed to create            a   genuine   issue   as   to  whether   Local   1575   acted            discriminatorily or  in bad  faith.  Plaintiffs  allege in  a            general fashion that Local  1575 favored ro-ro employees over            lo-lo employees.  However, the situation unavoidably required            the  union to make a determination as to which employees were            to have priority over others.  That  it did so    in a manner            which,  on its face, seems  reasonable and in conformity with                                         -12-            controlling  agreements       does  not,   by  itself,   show            "invidious 'discrimination'  of  the kind  prohibited by  the            duty  of fair representation."  Air line Pilots Ass'n, 111 S.                                            _____________________            Ct. at 1137; see also Colon Velez v. PRMMI, 957 F.2d 933, 940                         ________ ___________    _____            (1st Cir. 1992)  ("the union  must engage in  a balancing  of            interests"); Berrigan v. Greyhound Lines, Inc., 782 F.2d 295,                         ________    _____________________            298 (1st Cir. 1986) (quoting Michael C. Harper & Ira C. Lupu,            Fair  Representation as  Equal Protection,  98 Harv.  L. Rev.            _________________________________________            1211, 1260  (1985) ("Administration may well  require a union            to make  distributional judgments as important  as those made            in the negotiating stage.").                      Because  Local  1575's  actions  were  based  on  a            reasonable  interpretation  of  the  Agreement,  without  any            demonstrable showing of  bad faith, the union  did not breach            its  duty  of  fair  representation  by  refusing  to  pursue            plaintiff's  grievances.    A  union  is  under  no  duty  to            arbitrate a  grievance  that it  honestly and  in good  faith            believes lacks  merit.  Vaca,  386 U.S. at  191-92; Berrigan,                                    ____                        ________            782 F.2d at 298 (if a union were forced to  arbitrate "a case            that  it felt had little  basis in the  contract, it arguably            would  jeopardize  its  credibility  with  the  employer  for            purposes of later, more supportable, disputes with management            policies, instituted on behalf of all members.").                      We agree  with the  district court that  Local 1575            did  not breach  its duty  of fair  representation  either by                                         -13-            entering into the  stipulation with PRMMI  or by refusing  to            pursue plaintiff's  grievances  based upon  changes  made  in            accordance with the stipulation.                 C. Breach of Collective Bargaining Agreement                    _________________________________________                      As we stated previously, plaintiffs  cannot succeed            on  their breach of contract claim  against PRMMI unless they            are  also able to establish that Local 1575 breached its duty            of fair representation.   Because plaintiffs have been unable            to establish a breach  of the duty of fair  representation on            the  part  of  Local 1575,  their  breach  of contract  claim            against  PRMMI must  also fail.    We, therefore,  affirm the            district court's grant  of summary judgment on  the breach of            contract claim against PRMMI.5                                             ____________________            5.  The parties  have devoted considerable  portions of their            appellate briefs  to arguing over whether  the district court            properly   denied  plaintiffs'   motion  for   a  preliminary            injunction  against  PRMMI  for  breach   of  the  collective            bargaining agreement and against Local 1575 for breach of the            duty of fair representation.   We find these arguments  to be            puzzling   since   preliminary    injunctions,   which    are            interlocutory  in nature,  cannot  survive a  final order  of            dismissal.  Pacific Tel.  & Tel. Co. v. Kuykendall,  265 U.S.                        ________________________    __________            196 (1924); Shaffer v. Carter, 252 U.S. 37, 44 (1920); United                        _______    ______                          ______            States  ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th            ______________________    ________            Cir.), cert. denied, 488 U.S. 980 (1988); Cypress  Barn, Inc.                   ____________                       ___________________            v. Western Elec. Co.,  812 F.2d 1363, 1364 (11th  Cir. 1987);               _________________            Madison Square Garden  Boxing, Inc. v. Shavers, 562 F.2d 141,            ___________________________________    _______            144  (2d 1977).  Because  the district court's  denial of the            preliminary  injunction was  "merged in"  the final  judgment            dismissing  the  case, plaintiffs'  complaints  regarding the            preliminary injunction  are moot.   See Shaffer, 252  U.S. at                                                ___ _______            44.    In a  similar  vein,  plaintiffs' arguments  that  the            district court abused its  discretion by participating in the            examination  of   witnesses  and  arguing   with  plaintiffs'            attorney during  the preliminary injunction  hearing are also            moot.  However, even if we were to address these contentions,                                         -14-                 D. Procedural Arguments                    ____________________                      Plaintiffs contend that the district court erred in            treating  defendants' motion  to dismiss  as one  for summary            judgment   without  giving   plaintiffs  an   opportunity  to            discover.  Plaintiffs note that in July of 1991, they noticed            the  depositions of  Luis  A. Colon,  the  Director of  Labor            Relations  at  PRMMI,  and   Guillermo  Ortiz  Gonzalez,  the            President  of  Local  1575.   According  to  plaintiffs,  the            depositions  were important  to their  case because  they had            formally  and  informally  requested  documents  such  as the            current  collective bargaining agreement  and seniority lists            for  certain years,  but  their efforts  had been  fruitless.            Defendants thereafter  filed a motion for  a protective order            and a motion to dismiss.  On August 9, 1991, the court stayed            the  depositions until  the  motion to  dismiss was  decided.            Eight months after defendants  filed their motion to dismiss,            the court,  without any notification  to plaintiffs,  decided            the motion to dismiss as one for summary judgment.                      When treating  a Rule  12(b)(6) motion as  a motion            for summary judgment, "all  parties shall be given reasonable            opportunity to present all material  made pertinent to such a            motion by Rule 56."  Fed. R. Civ. P. 12(b) (motion to dismiss                                            ____________________            we  would  find,  based  upon  our   careful  review  of  the            transcripts of  the preliminary injunction hearing,  that the            district  judge  did not  exceed  his  authority under  Rules            611(a) and 614(b) of the Federal Rules of Evidence.                                         -15-            for  failure  to  state a  claim  upon  which  relief can  be            granted) and  12(c) (motion  for judgment on  the pleadings).            Contrary  to plaintiffs'  contention,  this circuit  does not            mechanically enforce  the requirement of express  notice of a            district court's intention to  convert a Rule 12(b)(6) motion            into a motion for  summary judgment.  Instead, we  treat "any            error  in failing to give express notice as harmless when the            opponent has received the affidavit and materials, has had an            opportunity  to respond  to  them, and  has not  controverted            their accuracy."   Moody v. Town Of Weymouth, 805 F.2d 30, 31                               _____    ________________            (1st Cir. 1986).   Thus, we have said, "[w]hen  discovery has            barely  begun  and  the   nonmovant  has  had  no  reasonable            opportunity  to  obtain  and  submit  additional  evidentiary            materials to counter the movant's affidavits, conversion of a            Rule  12  motion  to  a  Rule  56  motion is  inappropriate."            Whiting v. Maiolini, 921 F.2d 5, 7 (1st Cir. 1990).              _______    ________                      In the  present case, plaintiffs had  almost a year            between the filing of  the motion to dismiss and  the court's            treatment  of  that  motion  as  one  for  summary  judgment.            Moreover, over a year  had elapsed since plaintiffs initially            filed their  complaint.   Summary judgment did  not "follow[]            hard on  the heels of  the complaint  or answer."   Condon v.                                                                ______            Local 2944,  United Steel Workers  of America, 683  F.2d 590,            _____________________________________________            594 (1st Cir. 1982).   Furthermore, although entitled "Motion            to Dismiss,"  the motion, which quotes  extensively from Fed.                                         -16-            R.  Civ.  P. 56,  plainly sought  summary judgment  relief as            well.  Plaintiffs  clearly understood the motion in  this way            and responded to it by arguing that there were genuine issues            of material  fact.   In  fact, in  their memorandum  opposing            defendants' motion, plaintiffs referred  to the motion as one            for  "dismissal  of  the  complaint  and  summary  judgment."            Plaintiffs cannot  reasonably claim surprise at  the district            court's treatment of the motion as one  for summary judgment.            Furthermore,  although the district  court stayed  several of            plaintiffs' requested depositions, the district court did not            stay all  discovery.  Presumably then,  plaintiffs could have            filed motions to compel the  production of the documents that            they sought.  Under all the circumstances, we cannot say that            the  district court's  treatment  of the  motion  as one  for            summary judgment was unfair or improper.                      Plaintiffs   raise  a  number  of  other  arguments            challenging the  district court's grant  of summary  judgment            and its dismissal  of PRMSA from the case.   We have examined            each  of these arguments carefully and find that none has any            merit.                                           III.                                         III.                      The  district  court properly  dismissed  PRMSA for            lack of subject matter jurisdiction.  The district court also            properly granted summary judgment to PRMMI and Local 1575.                      Affirmed.  Costs to Appellees.                      ________   __________________                                         -17-
