               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 &amp;  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 &amp; 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

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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

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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.

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