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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-1606 <br> <br>             UNITED STATES OF AMERICA FOR THE USE AND <br>            BENEFIT OF ELECTRIC MACHINERY ENTERPRISES <br>                      OF PUERTO RICO, INC., <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                         FRAYA, S.E. AND <br>                    CONTINENTAL INSURANCE CO., <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                      Lynch, Circuit Judge, <br> <br>and DiClerico, Senior District Judge. <br> <br>                      _____________________ <br> <br>     Jorge Bermdez-Torregrosa, with whom Cuevas Kuinlam & Bermdez <br>was on brief, for appellant. <br>     Ivette M. Berros-Hernndez, with whom Caparrs, Catal & <br>Berros was on brief, for appellee Continental Insurance Co. <br> <br> <br>                       ____________________ <br> <br>                          May 26, 1998 <br>                       ____________________

          DICLERICO, District Judge.  This action arises from a <br>dispute between the plaintiff-appellant, Electric Machinery <br>Enterprises of Puerto Rico, Inc. ("EME"), and the defendant- <br>appellees, Fraya, S. E. ("Fraya") and Continental Insurance Company <br>("CIC"), concerning a construction project for the United States <br>Navy.  CIC filed a motion for summary judgment which the district <br>court granted before EME filed its response.  EME's request for <br>post-judgment relief was then denied.  Because EME appears to have <br>run afoul of a combination of factors, the most material of which <br>is an ambiguity in the Local Rules of the United States District <br>Court for the District of Puerto Rico ("Local Rules") as to what <br>date should have served as EME's deadline to respond, the court <br>vacates the district court's order granting summary judgment and <br>remands the matter to the district court so that it may reconsider <br>CIC's motion for summary judgment in light of EME's objection to <br>that motion. <br>Factual and Procedural Background <br>     EME worked as a subcontractor on a construction project <br>for the United States Navy on which Fraya was the general <br>contractor.  CIC was Fraya's surety.  EME brought this action under <br>the Miller Act, 40 U.S.C.  270(b), against Fraya and CIC when <br>Fraya failed to pay EME $74,831.22, plus interest, costs, and <br>attorney's fees, that EME alleges it is owed for work performed <br>under the subcontract.  Fraya brought a counterclaim against EME <br>for $248,234.59 in damages allegedly caused by EME's performance <br>under the subcontract.  CIC, on behalf of Fraya, contested <br>liability for the debt and alleged that EME had not complied with <br>the jurisdictional requirements of the Miller Act because it had <br>not filed its claim within one year of the date it last performed <br>on the subcontract. <br>     After several delays at the outset of the case, the <br>district court required CIC to file any summary judgment motions by <br>November 18, 1996.  On November 6, CIC sought an extension of time <br>in which to file for summary judgment until December 15, 1996, <br>which the court denied.  On November 18, CIC filed a timely motion <br>for summary judgment, alleging that EME's claim was filed outside <br>the one year statute of limitations.  In addition, it requested <br>that it be allowed to file several documents in Spanish in support <br>of its summary judgment motion. <br>     Local Rule 108.1, concerning translations, provides in <br>pertinent part as follows: <br>          All documents not in the English language <br>     which are presented to or filed in this Court, <br>     whether as evidence or otherwise, shall be <br>     accompanied at the time of presentation or <br>     filing by an English translation thereof, <br>     unless the Court shall otherwise order. <br> <br>          Whenever a case is removed to this Court, <br>     there shall be filed with the record, an <br>     English translation of all papers. . . .  <br>     Unless such translation accompanies the <br>     record, the Clerk shall refuse to receive and <br>     file the record. <br> <br>The court denied CIC's request to file documents in Spanish on <br>December 3 and ordered CIC to file certified translations of the <br>documents by December 9.  On December 6, EME received a copy of the <br>district court's December 3 order denying CIC's motion to file <br>documents in Spanish and ordering that the English translations be <br>filed by December 9. <br>     Local Rule 311.5, concerning responses to motions, <br>provides in pertinent part as follows: <br>          If the respondent opposes a motion, he or <br>     she shall file a response within ten (10) days <br>     after service of the motion, including brief <br>     and such supporting documents as are then <br>     available. . . .  For good cause appearing <br>     therefor, a respondent may be required to file <br>     a response and supporting documents, including <br>     brief, within such shorter period of time as <br>     the Court may specify, or may be given <br>     additional time to file a response as provided <br>     in subsection .6 of this Rule, including <br>     documents and brief. <br> <br>Based on Local Rule 311.5, if CIC's filing were considered complete <br>on November 18 when it filed the motion for summary judgment, EME's <br>response would have been due on December 2.  On December 2, EME's <br>counsel drafted a request for an extension of time to reply to the <br>motion for summary judgment.  It was signed on December 3 but, <br>because of a clerical error at counsel's firm, it was not filed <br>until December 6.  Once filed, the motion was not docketed until <br>December 11. <br>     In the meantime, on December 11, without knowledge that <br>EME had filed a request for an extension of time to answer, the <br>district court granted CIC's motion for summary judgment.  It found <br>that CIC's unopposed request for summary judgment supported the <br>allegation that more than one year had passed between the time that <br>EME last performed under the subcontract and the time it filed the <br>action seeking to recover on the subcontract.   <br>     On December 16, having previously granted summary <br>judgment to CIC, the district court denied EME's request for an <br>extension of time to respond.  The district court ruled that EME <br>should have sought an extension of time before December 2, which it <br>viewed as the deadline for EME's response.  On December 17, EME <br>filed a motion for relief from judgment pursuant to Federal Rule of <br>Civil Procedure 60, claiming, inter alia, excusable neglect for its <br>failure to file its response or request for extension of time <br>within the deadline.  In an order filed February 10, 1997, the <br>district court denied the motion. <br>     EME then filed this timely appeal, contesting the <br>district court's grant of summary judgment and denial of post- <br>judgment relief.  EME asserts that, if allowed, it is able to file <br>an immediate response to the motion for summary judgment setting <br>forth a meritorious defense to the statute of limitations bar. <br>                           Discussion <br>     EME raises several contentions on appeal, but the court <br>need only consider in detail its assertion that the district court <br>erred in calculating the proper time period for EME to respond to <br>CIC's motion for summary judgment.  EME asserts that the ten-day <br>period within which it was required to reply to the motion for <br>summary judgment should have begun running, not on November 18 when <br>the motion for summary judgment was filed, but on December 9, the <br>date that CIC, in accordance with the court's order, filed its <br>certified translations of Spanish-language documents supporting the <br>motion for summary judgment.  The district court rejected EME's <br>argument, stating the following: <br>          Plaintiff also argues that [CIC's] motion <br>     for summary judgment was not complete until it <br>     filed certified translations of the documents <br>     in support thereof on December 9, and <br>     therefore plaintiff's motion requesting an <br>     extension of time was not tardy.  Although <br>     Local Rule 108.1 requires that any document <br>     filed with this Court in a language other than <br>     English be accompanied by a certified <br>     translation, it does not state -- nor does <br>     plaintiff point to any case law so holding -- <br>     that a motion for summary judgment is not <br>     considered filed until such translations are <br>     provided.  More importantly, plaintiff does <br>     not suggest that failure to provide <br>     translations hindered its ability to oppose <br>     the motion for summary judgment.  Indeed, it <br>     cannot so suggest since the three untranslated <br>     exhibits were demand letters plaintiff's <br>     counsel had written on behalf of his client.  <br>     Plaintiff can hardly assert that it did not <br>     understand the nature of Continental's motion <br>     for summary judgment because of Continental's <br>     failure to translate the exhibits.  If such <br>     were the case, the Court might be more <br>     receptive to plaintiff's arguments.  Absent <br>     such a showing, plaintiff's arguments raise <br>     unimportant technicalities.  Clearly, <br>     plaintiff's attorney is bilingual and <br>     defendant's delay in providing the <br>     translations did not hinder his ability to <br>     oppose the motion for summary judgment. <br> <br>Order of February 8, 1997, at 7-8. <br>     Although the district court concluded that EME's argument <br>amounted only to an "unimportant technicality," id., Local Rules <br>311.5 and 108.1 undoubtedly created an ambiguity as to the proper <br>date by which to respond to CIC's motion.  Rule 311.5 fixes a ten <br>day response time for motions.  Rule 108.1 provides that all <br>documents not in English "shall be accompanied at the time of <br>presentation or filing by an English translation thereof, unless <br>the Court shall otherwise order."  Although Rule 108.1 makes clear <br>the consequences of failure to file translations when a case is <br>removed, it is silent as to the effect that failure to file <br>translations has on other filings.  See Local Rule 108.1 ("Unless <br>. . . [a translation of documents in removed cases] accompanies the <br>record, the Clerk shall refuse to receive and file the record.").  <br>It is reasonable to infer, based on the Rule's construction, that <br>the district court has discretion to refuse to accept a motion when <br>the filer fails to include required translations of supporting <br>documents.  Local Rule 114, concerning penalties for failure to <br>comply with the provisions of the Local Rules, is also broad enough <br>to countenance such discretion. <br>     In this case, the district court neither refused to <br>accept CIC's filing in toto nor excused the requirements of Rule <br>108.1, both of which it could have done within the exercise of its <br>discretion.  Instead, it set a deadline for filing the translated <br>documents.  With a filing that could reasonably be seen as <br>incomplete, the applicable deadline for EME's response was <br>ambiguous under the Local Rules.  Under these circumstances, it was <br>not unreasonable for EME to conclude that, by granting CIC <br>additional time to comply with the requirements of Rule 108.1, the <br>district court would not consider CIC's initial filing complete <br>until CIC cured the initial defect in its filing by submitting the <br>required certified translations. <br>     As the First Circuit stated in a similar context: <br>          A district court possesses great leeway in <br>     the application and enforcement of its local <br>     rules.  This discretion, though broad, is not <br>     unbridled. . . . <br> <br>          In making discretionary judgments, a <br>     district court abuses its discretion when a <br>     relevant factor deserving of significant <br>     weight is overlooked, or when an improper <br>     factor is accorded significant weight, or when <br>     the court considers the appropriate mix of <br>     factors, but commits a palpable error of <br>     judgment in calibrating the decisional scales. <br> <br>United States v. Roberts, 978 F.2d 17, 20-21 (1st Cir. 1992) <br>(citations omitted).  In Roberts, the court overturned a district <br>court's grant of a motion to suppress evidence in a criminal trial <br>that the district court granted without consideration of the <br>government's response.  See id. at 18-19.  It did so in part <br>because "the interlocking rules that govern computation of time in <br>this situation are freighted with ambiguity."  Id. at 22.  In this <br>case, EME not only ran afoul of an ambiguity in the Local Rules <br>made manifest by CIC's failure to comply with the translation <br>requirement but also suffered from inadvertent delays both in its <br>counsel's filing and the district court's docketing of a request <br>for an extension of time in which to respond.  The court holds <br>that, under these circumstances, the district court should have <br>granted EME post-judgment relief when the confusion became <br>apparent. <br>                           Conclusion <br>     For the reasons stated above, the court vacates the <br>decision of the district court and remands the case for <br>reconsideration of CIC's motion for summary judgment in light of <br>EME's objection.  The court recommends that the District of Puerto <br>Rico reexamine and clarify its Local Rules to prevent recurrence of <br>this issue in the future.  Costs of the appeal are awarded to the <br>plaintiff.</pre>

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