

                United States Court of Appeals
                    For the First Circuit
                                         

No. 96-2190

                 ERIC DELGADO-BIAGGI, ET AL.,

                   Plaintiffs, Appellants,

                              v.

               AIR TRANSPORT LOCAL 501, 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

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

                                         

John Ward Llambias for appellants.                              
Malcolm A. Goldstein,  with whom Joel C. Glanstein, Manuel  Porro-                                                                              
Vizcarra,  O'Donnell,  Schwartz,  Glanstein  &amp;  Rosen,  and  Lopez-Lay                                                                              
Vizcarra &amp; Porro, were on brief for appellees.                        

                                         

                         May 5, 1997
                                         

          STAHL, Circuit Judge.  Plaintiff-appellant     Eric                      STAHL, Circuit Judge.                                          

Delgado-Biaggi1   brought   an  action   against  defendants-

appellees  Air  Transport Local  501  ("Local  501") and  the

Transport   Workers   Union  of   America,   AFL-CIO  ("TWU")

(collectively,  "the  Union")   under  the   Labor-Management

Reporting and  Disclosure Act ("LMRDA"), 29  U.S.C.    401 et                                                                         

seq., claiming the  denial of due  process and the  arbitrary                

and discriminatory removal of his shop steward position.  The

district  court  granted summary  judgment  in  favor of  the

Union, from  which Delgado-Biaggi  now appeals.   Because the

district court's failure to comply with Federal Rule of Civil

Procedure   56(c)   denied   Delgado-Biaggi    a   meaningful

opportunity to oppose the Union's summary judgment motion, we

vacate the judgment and remand for further proceedings.

                              I.                                          I.                                            

               Background and Prior Proceedings                           Background and Prior Proceedings                                                           

          We  recite the  pertinent facts  in the  light most

favorable  to  Delgado-Biaggi,  the  party  opposing  summary

judgment.  See Hachikian  v. F.D.I.C., 96 F.3d 502,  504 (1st                                                 

Cir. 1996).

          Delgado-Biaggi joined the Local  501 chapter of the

TWU in 1991 when he began  working for American Airlines as a

baggage handler.  One  year later, Delgado-Biaggi was elected

                                                    

1.  Delgado-Biaggi's wife, Nilda  Fernandez-Zayas, and  their
conjugal partnership are also plaintiffs.  For simplicity, we
refer only to Eric Delgado-Biaggi and his claims.

                             -2-                                          2

to a union  shop-steward position  for the  bag room,  second

shift.2   In September  1993, Delgado-Biaggi bid  for a first

shift position, which he obtained because of his seniority.

          In  October  1993,  shortly   after  Delgado-Biaggi

changed work shifts, the  chairman of Local 501 handed  him a

letter  from Local  501's  Executive Vice-President,  William

Tlasek,  which  purported  to   acknowledge  Delgado-Biaggi's

"resignation" of  his shop  steward's position.   In November

1993, Delgado-Biaggi responded to Tlasek by letter, asserting

that he  had not resigned as  shop steward and that  he had a

right to remain in office unless he was duly removed pursuant

to  Local 501's  bylaws.   Tlasek,  in  turn, responded  that

Delgado-Biaggi's  shift-change   automatically  effected  his

resignation under  Article VII(a) of the  union bylaws, which

provides: "A Shop Steward who leaves the unit or shift he was

elected by, will continue  to serve at the discretion  of the

Executive Board."

          Dissatisfied  with  that  response,  Delgado-Biaggi

complained again to Tlasek by letter  dated January 14, 1994,

also to  no avail.  Not willing to concede the issue, he then

retained  an attorney who, in  March 1994, wrote  a letter to

Local  501 claiming denial of  due process in  the removal of

Delgado-Biaggi  as  steward.   The  leadership  of Local  501

                                                    

2.  Shop  stewards are  union representatives  who personally
handle problems that their fellow employees raise  concerning
management.

                             -3-                                          3

remained unmoved.   In April  1994, Delgado-Biaggi's  counsel

attempted   to  appeal  by   letter  to  TWU's  International

Executive Council.  The Council's stated reason for rejecting

the  appeal was  Delgado-Biaggi's failure to  personally file

the letter.  Delgado-Biaggi did  not resubmit his appeal, but

instead commenced this litigation in June 1994.

          On June  13, 1996,  after a desultory  beginning to

the  prosecution of this case, the district court set a trial

date of July 1, 1996.  On June 17, the Union responded to the

setting  of the  trial date  by filing  a motion  for summary

judgment.3   On  Friday, June  28, the  parties met  with the

district  court  judge  in   chambers  for  a   non-scheduled

conference.   During  this meeting,  Delgado-Biaggi announced

his  intention  to  oppose  the Union's  motion  for  summary

judgment with oral and  documentary evidence on the following

Monday, July 1, the scheduled first day of trial.

          The following Monday morning, before Delgado-Biaggi

had  an opportunity  to  present his  opposing evidence,  the

parties were handed an opinion and order granting the Union's

                                                    

3.  We note  that  the  Union submitted  the  June  17,  1996
summary judgment motion well  after the court's November 1995
deadline for the filing of the dispositive motion.  The court
allowed the untimely motion although, as the record reflects,
the Union did  not first  seek and obtain  leave to file  the
motion out  of time.  See  In re San Juan  Dupont Plaza Hotel                                                                         
Fire Litigation, 45 F.3d 564, 566 (1st Cir. 1995) (explaining                           
that  summary judgment  proponent must  obtain permission  to
file motion out of time where filing deadline "had long since
passed").

                             -4-                                          4

motion for summary judgment.   The terse opinion  stated that

"[t]he union's actions in [construing  Delgado-Biaggi's shift

change as a resignation  of shop stewardship] were authorized

by its by-laws, which make perfect sense, since, of course, a

shop steward is of little  use if he does not work  the shift

he represents."    The  order  concluded that  "none  of  the

union's conduct violates the rights protected under 29 U.S.C.

  411."  The  court did  not entertain oral  argument on  the

motion.

          Thereafter,  Delgado-Biaggi  filed   a  motion   to

reconsider  along  with   a  sworn  declaration   from  Jorge

Brignoni, a  former Chairman of  Local 501.   The declaration

stated  that  union  stewardships are  "never"  withdrawn  or

deemed resigned as a result of a shift change, and that

          [i]t  has  never  been  the  practice  in
          Puerto Rico to consider a change of shift
          as an automatic  resignation . . . .  The
          only  case  where such  an interpretation
          has  been  attempted  is  when  Mr.  Eric
          Delgado was unilaterally  removed by  the
          then Chairman Mr. Rafael Perez.

Delgado-Biaggi   further  submitted   an  excerpt   from  the

deposition of  Jose Rodriguez, a Board  member, who testified

that  the Executive  Board had  never removed  Delgado-Biaggi

from his shop  steward position.   The district court  denied

the motion to reconsider.  This appeal followed.

                             II.                                         II.                                            

                          Discussion                                      Discussion                                                

                             -5-                                          5

          On  appeal, Delgado-Biaggi argues that the district

court  prematurely granted summary  judgment and  that, given

the proper opportunity  to respond to the  Union's motion, he

would have produced  evidence sufficient to  preclude summary

judgment.  The Union offers a  host of arguments in favor  of

upholding the  court's disposition of the  action and insists

that "the district court handled the case properly."

          Federal Rule of Civil Procedure 56(c) provides that

a summary judgment motion  "shall be served at least  10 days

before  the time  fixed for  the hearing."   Fed. R.  Civ. P.

56(c).   We have interpreted  Rule 56(c) to  allow an adverse

party at  least ten days  to respond to a  motion for summary

judgment.   See  Stella v. Town  of Tewksbury, 4  F.3d 53, 55                                                         

(1st Cir. 1993) ("[S]ummary judgment targets should be secure

in the knowledge  that they will  have at least  ten days  in

which to  formulate  and prepare  their  best  opposition.");

Melanson  v. Caribou Reefers,  Ltd., 667  F.2d 213,  214 (1st                                               

Cir. 1981).  Indeed, "the purpose of Rule 56(c) is to allow a

party to have a meaningful opportunity to challenge a summary

judgment  motion."    Cia.  Petrolera Caribe,  Inc.  v.  Arco                                                                         

Caribbean, Inc., 754 F.2d 404,  409 (1st Cir. 1985) (internal                           

quotation marks and citation omitted).4

                                                    

4.  We note that, while  Rule 56(c) refers to a  "hearing" in
relation  to the ten day  proviso, the rule  does not require
oral argument  in  connection  with  the motion.    See  Cia.                                                                         
Petrolera Caribe, 754 F.2d at 411 (explaining that the motion                            
may be "heard" on the papers).

                             -6-                                          6

          The Union filed its  motion for summary judgment on

Monday, June 17, 1996.  Excluding the day on which the motion

was filed as well as the intervening Saturday and Sunday, see                                                                         

Fed.  R.  Civ.  P.  6(a), the  ten-day  requirement  afforded

Delgado-Biaggi until the end of the business day Monday, July

1, to submit  his opposition.   By ruling  on the morning  of

July  1, before  Delgado-Biaggi  could  present his  opposing

evidence,  the  district  court  denied   him  the  requisite

opportunity  to contest  the motion.   As we  previously have

admonished, the  "[ten day] notice requirement  is not merely

window   dressing"  and  the  "proper  province"  of  summary

judgment is "to  weed out  claims that do  not warrant  trial

rather than simply  to clear  a court's docket."   Stella,  4                                                                     

F.3d  at 55.   We find that  the court erred  when it granted

summary   judgment   before   Delgado-Biaggi  exhausted   his

opportunity to challenge the Union's motion.5

          The   Union   overlooks   the    procedural   flaws

accompanying the  entry of summary judgment  and endeavors to

persuade  us  that,  in any  event,  the  record reflects  no

genuine issue of material fact.  In Stella, we "decline[d] to                                                      

delve into  the substantive  aspects of plaintiffs'  cause of

action"  because  "leapfrogging to  the merits  would display

                                                    

5.  The error  is somewhat  amplified by the  undisputed fact
that, during the June  28 chambers conference, Delgado-Biaggi
notified the district court that he would submit his opposing
evidence the following Monday, July 1.

                             -7-                                          7

much the same disregard  for established protocol that marred

the district court's performance."   4 F.3d at 55.   Assuming

harmless error jurisprudence applied  in such cases, we noted

that  the  peculiar  procedural  regime  the  district  court

employed in that case thwarted any such analysis.  See id. at                                                                      

56 n.4.

          We acknowledge that this  case does not present the

extreme procedural shortcomings involved  in Stella.  See id.                                                                         

at 54  (reversing summary  judgment where,  on  first day  of

trial, judge directed defendants to move for summary judgment

and   afforded  plaintiffs  thirty  minutes  to  prepare  for

argument).6  The district court's failure to comply with Rule

56(c),  however, necessitates  that we  afford Delgado-Biaggi

"every  latitude to show that [the Union] was not entitled to

summary  judgment."   Melanson,  667 F.2d  at 214.   Assuming                                          

arguendo that  harmless error analysis applies  to Rule 56(c)                    

infirmities,  we cannot  say  that the  court's noncompliance

with the ten-day notice requirement was harmless.

          The  sworn  statements   submitted  with   Delgado-

Biaggi's motion  to reconsider  comprise evidence  that Local

501 never  previously considered a shift-change  an automatic

                                                    

6.  Although we construed the district court's proceedings in
Stella as involving  a sua sponte grant  of summary judgment,                                             
our  observations concerning  Rule 56(c)'s  requirements were
not limited  to that summary judgment subset.   See 4 F.3d at                                                               
55;  see also Berkovitz v. Home Box Office, Inc., 89 F.3d 24,                                                            
29-30 (1st Cir. 1996).

                             -8-                                          8

resignation of a  shop steward's  position and  that, in  any

event, the  Executive  Board never  exercised its  discretion

within the  meaning of  Article VII(a) to  terminate Delgado-

Biaggi's  stewardship.   Indeed, the  Union conceded  at oral

argument before us that  there was no evidence in  the record

to  establish  that  the  Board  had  met  to   exercise  its

discretion.7   This  undisputed fact  undermines the  court's

crucial   findings   in  its   summary  judgment   order  and

sufficiently  raises  the  question  of a  genuine  issue  of

material fact.  Thus,  we cannot view the  flawed proceedings

below as involving harmless error.

          Furthermore,  by  the  Union's own  reasoning,  its

contention that  Delgado-Biaggi fails to state  a claim under

the  LMRDA  depends  on  the Executive  Board's  powers  and,

ultimately, the  disputed question  whether the Board  met to

exercise its  discretion.   The Union's other  arguments also

raise significant issues neither fully presented nor squarely

addressed below.8  See In re San Juan Dupont Plaza Hotel Fire                                                                         

                                                    

7.  Without deciding the issue, we note  that the language of
Article  VII(a)  appears  to  contemplate  the  uninterrupted
service of  a shop  steward who changes  shifts, absent  some
action by the Executive Board.

8.  For example, the Union  argues that Delgado-Biaggi failed
"to exhaust reasonable hearing  procedures (but not to exceed
a four-month lapse of time) within [the union]" before filing
his  action.     29   U.S.C.    411(a)(4).     This  argument
potentially requires factbound  determinations regarding  the
"reasonableness" of  the hearing  procedures and  the precise
event that  triggered the  four month period.   The  district
court  never reached  this issue  and, given  the undeveloped

                             -9-                                          9

Litigation, 45 F.3d  564, 567, 568  (1st Cir. 1995)  (finding                      

harmful  error  where  appellate  court  was not  "completely

certain that  the merits  of the  summary judgment  issue had

been fully  presented to  the  district court"  and where  "a

significant  legal  issue,  not  squarely  addressed  by  the

district   court"   remained   unresolved  due   to   court's

abbreviated summary  judgment proceedings).  We  are loath to

endorse  the  district  court's  disregard   for  Rule  56(c)

protocol by reaching the merits of these undeveloped matters.

See Stella, 4 F.3d at 55.                      

          We conclude that, largely because of the absence of

evidence establishing Executive Board  action, as well as the

procedural failure  below, remand for further  proceedings is

the  appropriate solution.  See  In re San  Juan Dupont Plaza                                                                         

Hotel Fire Litigation, 45 F.3d at 568.                                 

                             III.                                         III.                                             

                          Conclusion                                      Conclusion                                                

          For the foregoing  reasons, we vacate  the judgment                                                           

of the district  court and  remand the  case for  proceedings                                              

consistent with this opinion.  Costs to appellants.                                                              

                                                    

record, we decline to reach it at this time.

                             -10-                                          10
