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

     The  opinion of  the  Court  issued  on  April  5,  1993  is
corrected as follows:

     On page 5, line 16   delete (1976 &amp; 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 &amp; 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

          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

                    

     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.
                                                   

          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 &amp; 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 &amp; 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

          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. &amp; 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 &amp;
                                                                 

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 &amp;  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

           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
