
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2365                              GUILLERMO BONILLA-AVILES,                       MARIA VELAZQUEZ, C/P BONILLA-VELAZQUEZ,                               Plaintiffs, Appellants,                                          v.                           SOUTHMARK SAN JUAN, INC., ET AL,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Friedman,* Senior Circuit Judge,                                      ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            John Ward Llambias for appellants.            __________________            Maria Soledad  Ramirez Becerra  with whom  Mercado &  Soto was  on            ______________________________             _______________        brief for appellee Saint James Security, Inc.            Ricardo L.  Rodriguez Padilla  for  appellee  Southmark San  Juan,            _____________________________        Inc.            Ray Fargason,  Harding, Bass,  Fargason, Booth & Calfin  and Maria            ____________   ________________________________________      _____        Teresa Agudo Loubriel on brief for appellee Calypso Water Sports, Inc.        _____________________                                 ____________________                                     May 12, 1993                                 ____________________        _____________________        *Of the Federal Circuit, sitting by designation.             FRIEDMAN,  Senior Circuit Judge.  The United States District                        ____________________             Court   for  the  District  of  Puerto  Rico  dismissed  the             plaintiffs' diversity tort  suit on two  grounds:  (1)  that             the Puerto Rico  statute of limitations barred  the suit and             (2)  that dismissal  was  warranted because  of  one of  the             plaintiffs'  repeated  failures to  comply with  the court's             pretrial orders.  We affirm the dismissal on the limitations             ground  and, therefore,  find it  unnecessary  to reach  the             second ground.                                          I                       On  April 4, 1991, the plaintiffs, Mr. Bonilla and             his wife,  filed a  diversity  action in  the United  States             District Court for  the District of Puerto  Rico against the             defendants.  The complaint alleged that on February 5, 1990,             while  Mr. Bonilla was a guest  at the Sands Hotel in Puerto             Rico and as a result  of the hotel's negligence, he suffered             various  injuries when  he was  struck  in the  head with  a             volleyball while in the Jacuzzi area.   The complaint sought             damages of $1,450,000.00.                       More than  16  months  later,  following  repeated             failures  of Mr.  Bonilla to  comply  with various  pretrial             (including discovery) orders of the court, the court granted             the  defendants' motion  for summary judgment  and dismissed                                        - 2 -             the complaint.  The court held:  (1) that Puerto Rico's one-             year tort statute of limitations  barred the suit, since (a)             the suit  was filed 14  months after the alleged  injury and             (b) Mr.  Bonilla had  not established  any of  the statutory             grounds for tolling the statute; and (2) that  dismissal "is             also  based  on  plaintiff's failure  to  comply  with court             orders."                                            II                       As  noted, Puerto Rico  has a one-year  statute of             limitations for all tort actions.  P.R. Laws Ann. tit. 31,               5298(2) (1991).   Since  the complaint  was filed  14 months             after Mr.  Bonilla allegedly  was  injured, on  its face  it             appears untimely under the statute.                       Puerto Rico, however, has a tolling  statute which             provides:                            Prescription  of   actions  is                            interrupted      by      their                            institution before the courts,                            by extrajudicial claim  of the                            creditor,  and by  any act  of                            acknowledgment of the  debt by                            the debtor.             Id.   5303 (1991).             ___                       The  plaintiffs here contend,  as they did  in the             district  court,  that  three  letters  tolled  the statute.             These letters  were referenced  and  apparently attached  to                                        - 3 -             motions  the   plaintiffs  filed,  but   the  letters  were,             nevertheless, not  part of  the record  before the  district             court.   The  court rejected the  tolling contention  on the             following ground:                            Defendants have shown that the                            action was filed more than one                            year   after   the    incident                            occurred.   Plaintiff, as  the                            non-moving  party,   must  now                            produce evidence to  create an                            issue  of fact  as to  whether                            the statute of limitations was                            tolled  or  not.     Plaintiff                            alludes  to   letters  stating                            extrajudicial claims  which he                            states   were   sent   to  the                            defendant.   However, none  of                            these letters are  included in                            the  record.    Without  these                            letters,  which  we   need  in                            order to determine  whether or                            not the statute of limitations                            was tolled  under Puerto  Rico                            law, we  cannot proceed.   We,                            therefore,  grant  defendants'                            summary     judgment    motion                            because  plaintiff has  failed                            to  fulfill   his  burden   of                            production.                       Since the  plaintiffs have  the burden  to support             their  claim that the  statute was tolled,  their failure to             introduce into the record the  letters upon which they based             that claim was  fatal to the claim.   See Mesnick v. General                                                   ___ _______    _______             Elec.  Co., 950  F.2d 816,  822  (1st Cir.  1991) (when  the             __________             moving party  has made  a showing that  no genuine  issue of                                        - 4 -             material fact is at issue and the nonmoving party "bears the             ultimate  burden  of   proof,  he  must   present  definite,             competent  evidence  to  rebut   the  motion"  for   summary             judgment),  cert.  denied, 112  S.  Ct.  2965 (1992).    The                         _____________             district court, therefore, justifiably rejected the  tolling             contention for  lack of supporting  proof.  Fed. R.  Civ. P.             56(c) ("The judgment  sought shall be rendered  forthwith if             the pleadings, depositions, answers to interrogatories,  and             admissions on file . . . show 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.").                         In  any  event,  the letters  do  not  support the             tolling contention.                       The  first and third  letters were written  by the             insurance  representative of  the Sands  Hotel  and did  not             admit liability.    They, therefore,  were  not an  "act  of             acknowledgment of  the debt  by the  debtor."   Indeed,  the             plaintiffs apparently do not claim to the contrary.                       The  plaintiffs  rely   upon  the  second  letter,             written   by   Mr.  Bonilla's   lawyer   to   the  insurance             representative in  response  to the  latter's first  letter,             which  had  sought  certain  information  from  Mr.  Bonilla                                        - 5 -             regarding the alleged accident.  The only possibly pertinent             portion of Mr. Bonilla's letter stated:                            I  would  appreciate  that you                            send me information  about the                            coverage of the  policy Sand's                            Hotel  have  [sic]  for  cases                            like this and also if you have                            any  representative in  Puerto                            Rico with whom  we can discuss                            and try to settle this case.                       The   plaintiffs  contend   that  this   statement             constituted an  "extrajudicial claim of the  creditor" under             the tolling statute.                       As  this court  has noted,  the  Supreme Court  of             Puerto  Rico "has  stated that  an  extrajudicial claim,  in             order  to  have   tolling  effect,  must  be   'precise  and             specific.'    Jimenez v.  District Court,  65 P.R.R.  35, 42                           _______     ______________             (1945)."  Gual Morales v.  Hernandez Vega, 604 F.2d 730, 733                       ____________     ______________             (1st  Cir.  1979).   In  Pacheco  v. National  Western  Life                                      _______     _______________________             Insurance Co.,  640 F.  Supp.  900, 905  (D.P.R. 1986),  the             _____________             court  ruled that  a letter  was  sufficiently "precise  and             specific" so as to toll the limitations period where                       [t]he letter  makes a  clear and  direct                       reference to [the] Law . . . under which                       the  present  action  is brought.    The                       letter  describes  plaintiff's  services                       clearly falling within the shield of the                       [relevant] law.   The mention of amounts                       of  money owed  and plaintiff's  warning                       that  his  lawyers were  being  notified                       lead us to  conclude that a claim  under                                        - 6 -                       [the particular law  at issue] was being                       made through  this letter  and that  the                       letter in  fact makes  a  claim for  the                       relief ultimately sought.             Id.  (footnote omitted).    On  the  other  hand,  we  ruled             ___             insufficient  for tolling,  a  letter that  "specified  what             plaintiffs were requesting, but did not give specific notice             of the basis of the  lawsuit," and a second letter in  which             the   plaintiff  merely  stated  his  intention  to  file  a             complaint  against the defendant.   Riofrio Anda  v. Ralston                                                 ____________     _______             Purina,  Co., 959  F.2d  1149,  1154 (1st  Cir.  1992).   We             ____________             concluded that neither  of those letters were  sufficient to             alert the defendant to the specific causes of action against             which it would be forced to defend itself.  Id.                                                          ___                       We  also have noted  that under Puerto  Rican law,             "[a]  proper extrajudicial claim  must seek the  same relief             ultimately  sought in the subsequent lawsuit."  Fernandez v.                                                             _________             Chardon, 681 F.2d 42, 53  (1st Cir.), cert. granted in part,             _______                               _____________________             459 U.S. 987, cert. denied in part, 459 U.S. 989 (1982), and                           ____________________                       ___             aff'd sub nom. Chardon v.  Fumero Soto, 462 U.S. 650 (1983).             ______________ _______     ___________             See also Rodriguez Narvaez v.  Nazario, 895 F.2d 38, 44 (1st             ________ _________________     _______             Cir.  1990) (the extrajudicial claim "must require or demand             the   same  conduct  or  relief  ultimately  sought  in  the             subsequent lawsuit"); Torres v.  Superintendent of Police of                                   ______     ___________________________             P.   R.,  893  F.2d   404,  407  (1st   Cir.  1990)  ("[T]he             _______                                        - 7 -             extrajudicial  claim  must  claim  the  same  relief   later             requested in the federal suit.").                       Neither  the  request  in  Mr. Bonilla's  lawyer's             letter  for information  about the  Sands Hotel's  insurance             coverage,   nor   the   question   whether   the   insurance             representative had "any  representative in Puerto Rico  with             whom  we  can  discuss  and   try  to  settle  this   case,"             constituted  a "precise  and  specific" extrajudicial  claim             that  sought "the  same  relief  ultimately  sought  in  the             subsequent  lawsuit."    The  mere  seeking  of  information             regarding a possible  discussion and settlement of  the case             with  the insurance representative did not indicate that the             plaintiffs were asserting  a substantial  damages claim  for             the injuries Mr. Bonilla allegedly suffered.                         The  letter  fell  far  short  of  the specificity             required to  alert  the defendant  to the  particulars of  a             likely damages  suit.   It was not  a "request  for monetary             compensation as a  result of an  injury suffered" that  this             court  held  was the  basis  of  decisions  holding that  an             extrajudicial demand had  triggered the tolling of  a Puerto             Rican statute of limitations.  Hernandez del Valle v.  Santa                                            ___________________     _____             Aponte, 575 F.2d  321, 323 (1st Cir.  1978) (letters seeking             ______             reinstatement of discharged employee did not toll statute of                                        - 8 -             limitations on claim under 42  U.S.C.   1983 for damages for             the discharge).  See also  Rodriguez Narvaez, 895 F.2d at 43                              ________  _________________             ("The Supreme Court  of Puerto Rico has stated  that in view             of  the   importance  of  the  institution   of  'extinctive             prescription' in the civil  law tradition tolling provisions             must  be  interpreted   restrictively  against  the   person             invoking  their  protection.")  (citing  Diaz  de  Diana  v.                                                      _______________             A.J.A.S.  Ins. Co.,  110  P.R.R.  602,  607-08  n.1  (1980))             __________________             (footnote omitted).               Affirmed.                                        - 9 -
