
USCA1 Opinion

	




          February 9, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________        No. 92-1226                            RAYMOND RIVERA LOPEZ, ET AL.,                                Plaintiffs, Appellees,                                          v.                               MUNICIPALITY OF DORADO,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this Court  issued November 17, 1992, is amended as        follows:              On cover  sheet delete  "Hon. Gilberto  Gierbolini, U.S.  District        Judge"  and insert "Hon. Justo Arenas, U.S. Magistrate Judge."        November 17, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________        No. 92-1226                            RAYMOND RIVERA LOPEZ, ET AL.,                                Plaintiffs, Appellees,                                          v.                               MUNICIPALITY OF DORADO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Justo Arenas, U.S. Magistrate Judge]                                          _____________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Carlos Lugo Fiol, Assistant Solicitor General, with whom  Anabelle            ________________                                          ________        Rodriguez,  Solicitor General,  and Reina  Colan de  Rodriguez, Deputy        _________                           __________________________        Solicitor General, were on brief for appellant.            Arnaldo E. Granados  with whom  Ortiz Toro &  Ortiz Brunet was  on            ___________________             __________________________        brief for appellees.                                 ____________________                                 ____________________                      ALDRICH,  Senior Circuit Judge.  Plaintiffs Raymond                                ____________________            Rivera  Lopez, et al.  brought this diversity  tort action in            the Puerto  Rico District  Court against the  Municipality of            Dorado by a complaint filed on October 18, 1990.  The summons            was  allegedly served  on one  Jes s E.  Palmer, Esquire,  an            attorney employed  part-time by  defendant.  The  local rule,            adopted by the  federal rule, provides  for service upon  the            "chief  executive [or] a  person designated by  him."  Puerto            Rico R. Civ. P. 4.4(h);  Fed. R. Civ. P. 4(d)(6).   Defendant            failed  to   appear  and,  in  due   course,  was  defaulted.            Thereafter, without  any attempt  having been made  to notify            defendant, a jury trial  was held to determine damages.   The            jury having found $300,000,  judgment was entered accordingly            for  plaintiffs,  but,  within 10  days,  defendant  appeared            specially and moved to  remove the default and to  vacate the            judgment.  Affidavits were submitted, hereinafter described.                      Defendant's motion  was  referred to  a  magistrate            judge   who,  according   to  plaintiffs'  brief,   "had  the            discretion and opportunity to consider the credibility of the            testimonies  that the  court had  before it."   This  is not,            however,  what he  did.   Rather, recognizing  that both  the            mayor and attorney Palmer had filed affidavits to the  effect            that  Palmer lacked  authority to  receive service  -- Palmer            adding  that he  had so  informed the  process server  -- the            magistrate invoked,  instead, the  doctrine of estoppel.   On                                         -3-            three  previous  occasions defendant  had  not  complained of            service  that had been made on persons other than the mayor.1            Relying on  this showing, the magistrate  said, "The estoppel            doctrine . . . arises out of the general principle of  equity            that  requires one  to  proceed in  good  faith in  juridical            affairs. . . .  The previous unconditional submissions to the            jurisdiction of the court . . . are an implicit authorization            to any complainant to follow the same procedure. . . .  [T]he            defendant is estopped by its previous acts."                      This was a grossly enlarged view.  A party claiming            estoppel  must   show  reliance,  to  his   detriment,  on  a            misrepresentation of facts.   See Heckler v. Community Health                                          ___ _______    ________________            Services of Crawford City,  Inc., 467 U.S. 51, 59  (1984); K-            ________________________________                           __            Mart  Corp. v. Oriental Plaza,  Inc., 875 F.2d  907, 912 (1st            ___________    _____________________            Cir. 1989).  There was no testimony that either plaintiffs or            the process server relied  on, or even knew of,  the previous            occurrences  on  which  the  magistrate  predicated estoppel.            While, as the magistrate said, estoppel is based on fairness,            plaintiffs cannot claim unfairness  by reason of something of            which they were ignorant.                      We would add that  this is not an estoppel  case in            any  event.    The  acceptance  of  service  in  prior  cases                                            ____________________            1.  In  unrelated suits, brought  by other parties, defendant            had  appeared without contest when the  service had been upon            Mr. Palmer's secretary, defendant's Finance Director, and Mr.            Palmer.                                         -4-            unconnected   with  plaintiff   might  have   been  specially            authorized, or defendant, having knowledge, might have chosen            to  waive formalities.  It should not be precluded from doing            this at the cost of a general representation to the public.                      The issue here is  a factual one of authority.   In            view of its  importance, there  should be a  hearing on  live            testimony,  not on  conflicting affidavits.   We,  of course,            express no opinion, but, in connection with the admissibility            of the process server's  testimony that Palmer stated he  was            authorized, we call attention  to Fed. R. Evid. 801(d)(2)(D).            Though cast  as a rule of evidence, this is a recital of, not            a change in,  the law of agency.  See  Union Mutual Life Ins.                                              ___  ______________________            Co.  v. Chrysler Corp., 793 F.2d 1,  8 (1st Cir. 1986).  Also            ___     ______________            we note the  fact that, once challenged,  plaintiffs have the            burden of proving proper service.  Saez Rivera v. Nissan Mfg.                                               ___________    ___________            Co.,  788 F.2d 819, 821  n.2 (1st Cir.  1986); Aetna Business            ___                                            ______________            Credit, Inc. v. Universal Decor & Exterior  Design, Inc., 635            ____________    ________________________________________            F.2d 434, 435 (5th Cir. 1981).  Finally, we believe that,  as            a matter of appearances,  the new hearing should be  before a            new  judge or  magistrate.   Cf. Mass.  Dist. Ct.  Local Rule                                         ___            40.1(i).                      Reversed  and remanded  for further  proceedings in                      ___________________________________________________            accordance herewith.            ___________________                                         -5-
