March 16, 1993

                      [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-2056

                   ERIC APONTE and ELBA GARCIA,

                     Plaintiffs, Appellants,

                                v.

               PUERTO RICO MARINE MANAGEMENT, INC.,

                       Defendant, Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                                      

                                           

                              Before

                       Breyer, Chief Judge,
                                          
                Torruella and Cyr, Circuit Judges.
                                                 

                                           

  Guillermo Ramos Luina with whom Harry  Anduze Montano was on brief
                                                       
for appellants.
  Rafael Cuevas Kuinlam with whom Cuevas  Kuinlam &amp; Bermudez was  on
                                                            
brief for appellee.
                                           

                                           

             Per  Curiam.     Eric  Aponte  and Elba  Garcia,  the
                        

plaintiffs in  this diversity  case, filed a  complaint in  which

they claimed that Puerto Rico  Marine Management (1) violated its

contract  with  Aponte  by  improperly dismissing  him  from  his

position   of  General   Manager,   and  (2)   in  the   process,

"intentionally  and  maliciously  misinformed  the  press"  about

events  related to the dismissal.  The defendant pointed out that

Puerto  Rico's "Law 80",  see P.R. Laws  Ann. tit. 29,    185a et
                                                                 

seq.,  limits damages  for wrongful  dismissal to an  amount well
    

below the federal diversity  jurisdiction minimum of $50,000, see
                                                                 

28 U.S.C.   1332.  It moved for summary judgment, Fed. R. Civ. P.

56, and, alternatively,  to dismiss the complaint  for failure to

state a claim, Fed. R. Civ. P. 12(b)(6).   The plaintiffs concede

that  the district  court correctly  granted summary  judgment in

respect to  their claim for  wrongful dismissal, but  they appeal

its decision dismissing their separate libel claim.

             We agree with the plaintiffs that the district  court

should  not have dismissed  the libel claim.   Our reason is that

the defendant's motion for  summary judgment, read in conjunction

with the memorandum or law which  supports it, does not appear to

seek summary judgment on  that claim.  Rather, the  defendant, in

that  motion, says that it  seeks dismissal for  the reasons that

(1) the "additional damages  requested by the plaintiff[s] .  . .

are not recoverable  as a matter of law;" (2)  Puerto Rico's "Law

80" limits wrongful  discharge damages to about $12,000;  and (3)

even   assuming  attorney's   fees  were   awarded,  the   amount

recoverable  under the  complaint would  not satisfy  the $50,000

jurisdictional  requirement.   It assumes  that the  libel count,

rather  than setting  forth  a separate  cause of  action, simply

seeks extra damages for a wrongful dismissal.
                   

             It may  well be  that defendant  intended to move  to

dismiss  all of the causes of action in the complaint, contending

that  both the  discharge-related libel  claims and  the wrongful

discharge claims were preempted by the exclusive remedy set forth

in "Law  80."   However, if  this was the  intention, it  was not

clearly expressed by the defendant's motion, especially when that

motion is read in conjunction with the accompanying memorandum of

law,  which  largely limits  itself  to  discussion of  "wrongful

discharge"  law.   As a  consequence, we  believe  the plaintiffs

could  reasonably  have  considered the  defendant's  motion  for

dismissal  or  summary  judgment to  have  referred  only  to the

"wrongful dismissal" claim, not to the "libel and slander" claim.

That  being  so,  the  plaintiffs  need  not  have  responded  by

"set[ting] forth specific facts showing  there is a genuine issue

for  trial" with  regard to  the libel  claim.   Fed. R.  Civ. P.

56(e).  Rather,  they could simply have pointed out  to the court

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that the summary judgment motion and memorandum had ignored their

separate libel claim.  And, that is what the plaintiffs did. 

             The plaintiffs may themselves be partly to blame  for

the failure of  the defendant's  motion to refer  to their  libel

claim as a separate cause of action, distinct from their wrongful

discharge  claim.   Their  complaint says  at  the outset,  in  a

separate section entitled "nature of the action," that the 

             nature of the action is for the recovery
             of   contractual   damages   caused   to
             plaintiffs  as  a result  of defendant's
             wrongful and  discriminatory termination
             of employment. 

Someone reading these  words alone might have concluded  that the

plaintiffs meant  their later  allegations of  libel to  refer to

damages caused by the wrongful dismissal, not to a separate cause

of action.  Nonetheless, the plaintiffs, in a separate section VI

of their complaint, do  set forth the elements of a  libel claim.

They state, for example, that the defendant "maliciously provided

journalists with . . . erroneous information [about Eric Aponte's

responsibility  for financial  irregularities]  with .  . .  full

knowledge  of  its  falsity"  or "with  negligent  disregard  for

truth."   They  specify the  way in  which these  alleged actions

harmed the plaintiffs.   And, most importantly,  they entitle the

paragraphs of section  VI the  "Second Cause of  Action."   Later
                                                       

developments  in  the  case   should  have  further  alerted  the

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defendant  that  the complaint  purported to  set out  a separate

cause of action for libel.   In their response to the  motion for

summary judgment, plaintiffs refer to  "their cause of action for

libel  and slander  which is  based .  . .  on acts  of defendant

separate   and   distinct"  from   "the  actual   termination  of

employment."   And,  the court's  "initial scheduling  conference

order"  refers to the  libel and  slander action  as a  "cause of

action"    separate  from  the   cause  of  action  for   "unjust

termination."  Under these circumstances, we believe it necessary

to  treat  the complaint  as setting  forth  a separate  cause of

action for libel and slander.   See Fed. R. Civ. P.  8(f); Conley
                                                                 

v.  Gibson,  355  U.S.  41, 45-46  (1957)  (complaint  should  be
          

interpreted   liberally  to  accord   with  concepts   of  notice

pleading).

             Without knowing  the specific  facts  upon which  the

allegations of  libel and  slander rest,  we cannot know  whether

Puerto  Rico's laws governing  claims for  libel and  for "unjust

dismissal" permit  or forbid recovery.  On remand, the defendant,

of course, remains free  to move for summary judgment  in respect

to  the libel and slander claim; in response, the plaintiffs will

likely have to particularize their factual showing.

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                                5

             The judgment  of the  district  court dismissing  the

plaintiffs'  claim for libel and slander is vacated and this case

is remanded with instructions to reinstate that claim.

             So ordered. 
                        

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