
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1455                        MARIA DEL CARMEN REYES-GARCIA, ET AL.,                                Plaintiffs, Appellees,                                          v.                             RODRIGUEZ & DEL VALLE, INC.,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                              _________________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                            and Gertner,* District Judge.                                          ______________                              _________________________               Virgilio Mendez Cuesta on brief for appellant.               ______________________               Jose F.  Quetglas Alvarez, Jose F. Quetglas Jordan, and Eric               _________________________  _______________________      ____          M. Quetglas Jordan on brief for appellees.          __________________                              _________________________                                    April 25, 1996                              _________________________          _____________          *Of the District of Massachusetts, sitting by designation.                    SELYA, Circuit  Judge.  Since appellate  judges are not                    SELYA, Circuit  Judge.                           ______________          haruspices, they  are unable  to decide  cases by  reading goats'          entrails.  They  instead must  rely on lawyers  and litigants  to          submit briefs that present suitably developed  argumentation with          appropriate citations to applicable  precedents and to the record          below.   A party who  honors the minimum  standards of acceptable          appellate advocacy only in the breach frustrates effective review          and  thereby jeopardizes  its  appeal.   The  case  at  bar is  a          paradigmatic example of a situation in which a party, by ignoring          the rules, invites serious repercussions.                                          I                                          I                    We  sketch  the  underlying   facts  as  best  we  can,          resolving infrequent conflicts in favor of the jury verdict.  See                                                                        ___          Cumpiano v. Banco  Santander P.R.,  902 F.2d 148,  151 (1st  Cir.          ________    _____________________          1990).                    In  1987,  defendant-appellant Rodriguez  &  Del Valle,          Inc.  (R&D), a general  contractor, executed an  agreement with a          public  agency,  the Urban  Renewal  and  Housing Corporation  of          Puerto Rico  (the Corporation), to  renovate several  residential          buildings in  the Puerta de  Tierra Housing Community,  San Juan,          Puerto  Rico.    Without  obtaining the  permission  required  by          relevant regulations    or any other semblance of permission, for          that matter   R&D  levelled speed bumps  on a road that  provided          entry  into  the  Housing   Community.    Though  flattening  the          protuberances  facilitated  access  to  the work  site  by  R&D's          vehicles  and heavy  machinery,  the changed  configuration  also                                          2          effectively  converted the  roadway into a  drag strip  for high-          speed   racing.     Dismayed   residents   soon  petitioned   the          municipality to reconstruct the  speed bumps.  The powers-that-be          acquiesced and the municipality  rebuilt the moguls (spacing them          at their original fifty-foot intervals,  rather than at the  100-          foot   intervals  then  mandated  by  applicable  highway  safety          regulations).  The  drag-racing ceased  and traffic  slowed to  a          snail's pace.                    R&D was  not to be  inconvenienced.  It  again levelled          the  speed bumps on its  own authority.   Not surprisingly, drag-          racing resumed and  the pace  of traffic accelerated.   When  R&D          finished the renovations limned by its contract, it  departed the          site  without restoring  the roadway  to its  original humpbacked          condition.  Residents alerted the authorities, warning that lives          were  at   stake.     After  conducting  an   investigation,  the          municipality concluded  that someone  had best rebuild  the speed          bumps.                    History teaches that at one point Rome burned while the          Emperor fiddled.  On  September 18, 1990   while  various parties          (including R&D and the Corporation) were fencing over who had the          responsibility to restore the speed bumps   a motorist named Jose          Flores,  travelling at high speed on the roadway, lost control of          his  automobile and  struck plaintiff-appellee  Maria del  Carmen          Reyes-Garcia  (Reyes) as she stood  on the sidewalk.   The impact          caused permanently debilitating injuries, including the severance          of a limb.                                          3                    Invoking diversity jurisdiction,  28 U.S.C.    1332(a),          the  plaintiff, by  then a  citizen of  New Jersey,  sued several          parties,  including R&D, in the United  States District Court for          the  District of  Puerto Rico.1   At  trial plaintiff  advanced a          golconda of tort theories against  R&D, claiming inter alia  that                                                           _____ ____          R&D  had   violated  a   highway   safety  regulation   requiring          contractors  to seek  permission from  the municipality  prior to          removing speed bumps, and that R&D's conduct had transgressed the          general duty of  care owed under Puerto Rico law.   See P.R. Laws                                                              ___          Ann.  tit.  31,    5141 (1991)  (providing  for liability  when a          defendant "by an act  or omission causes damage to  another party          through fault or negligence").                    After  a six-day trial, a  jury found for the plaintiff          and awarded her $700,000.  It apportioned the damages 80% against          the Corporation and 20% against R&D.  The district court denied a          variety of post-trial motions.  R&D now appeals.                                          II                                          II                    The appellant's submissions to  this court are in utter          disregard of the applicable  procedural rules.  It filed  a nine-          page opening brief  that did not  contain a table of  contents, a          list  of  legal  authorities,   a  jurisdictional  statement,   a          statement  of  the case,  a pr cis  of  the issues  presented for          review, or  a summary of the argument.  The merits section of the          brief  lacked developed  argumentation,  eschewed any  meaningful                                        ____________________               1Reyes'  children also sued,  but we need  not discuss their          claims.                                          4          citations  to pertinent  legal authority,  omitted particularized          references  to  the record  evidence,  and  did not  discuss  the          applicable standard(s) of review.  To cap matters,  the appellant          failed  to  prepare  a record  appendix.    In  short, the  brief          violated  a whole  series of  requirements imposed  by applicable          procedural  rules.   See,  e.g., Fed.  R.  App. P.  28(a)(1)-(6),                               ___   ____          28(e), & 30(a); 1st Cir. R. 28.2.                    The plaintiff  moved to dismiss the  unleavened appeal.          R&D responded  in fits and starts.   It filed two  addenda to its          opening  brief  (neither  of  which satisfactorily  repaired  the          manifold defects  in its  original filings).   Without consulting          the plaintiff, see  Fed. R. App. P. 30(b),  R&D also prepared and                         ___          filed a  thirteen-page record  appendix.  This  submission lacked          vital  excerpts from  the trial  record.   It also  lacked, among          other things,  an index, relevant  docket entries, the  notice of          appeal, and the opinion  of the district court denying  the post-          trial motions.  The principal document in the appendix was in the          Spanish  language,  without   translation.    These  shortcomings          violated the rules  several times over.  See, e.g.,  Fed. R. App.                                                   ___  ____          P. 30(a), (d); 1st Cir. R. 28.2 & 30.7.                                         III                                         III                    Procedural  rules are  important  for  two  overarching          reasons.    One  reason  is   that  rules  ensure  fairness   and          orderliness.   They ensure fairness by providing litigants with a          level playing field.  They ensure orderliness by providing courts          with a means for the efficient administration of crowded dockets.                                          5          In  both   these  respects  rules  facilitate   the  tri-cornered          communications that link the opposing parties with each other and          with the court.                    The second overarching reason why procedural  rules are          important  has  a  functional  orientation:   rules  establish  a          framework  that helps courts to assemble the raw material that is          essential  for forging  enlightened decisions.   In  an appellate          venue,  for example,  rules provide  the  mechanism by  which the          court,  removed from  the battlefield  where the  trial has  been          fought,  gains the information that it requires to set the issues          in context and  pass upon them.   When a party seeking  appellate          review fails to comply with the rules in one or more  substantial          respects,  its  failure  thwarts  this effort  and  deprives  the          appellate court of the basic  tools that the judges of the  court          need to carry out this task.  See Scarfo v. Cabletron Sys., Inc.,                                        ___ ______    ____________________          54 F.3d 931, 963 (1st Cir. 1995); Moore v. Murphy, 47  F.3d 8, 10                                            _____    ______          (1st  Cir. 1995); Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d                            _____________________    ____________          1555, 1559  n.5 (1st Cir. 1989);  Real v. Hogan, 828  F.2d 58, 60                                            ____    _____          (1st Cir. 1987).                    In  this instance  the  second reason  is of  paramount          importance.  The deficiencies  in the appellant's submissions are          pervasive.   They frustrate any reasonable  attempt to understand          its  legal theories  and  to corroborate  its factual  averments.          Canvassing the appellant's arguments illustrates the point.                    The appellant's  principal claim  is that it  enjoyed a          privilege to remove the  speed bumps because they were  placed at                                          6          shorter  intervals than  prescribed  by  the governing  municipal          regulation.   This  paralogism,  however, is  unsupported by  any          citation  either  to  legal  authority  or  to  record  evidence.          Therefore,  we must treat the argument as forfeited.  See Ryan v.                                                                ___ ____          Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1991) ("It is settled          ______________          in   this  circuit  that  issues  adverted  to  on  appeal  in  a          perfunctory    manner,    unaccompanied    by   some    developed          argumentation,  are  deemed  to have  been  abandoned.");  United                                                                     ______          States  v. Zannino,  895  F.2d 1,  17  (1st Cir.)  (same),  cert.          ______     _______                                          _____          denied, 494 U.S. 1082 (1990); see  also Fed. R. App. P.  28(a)(5)          ______                        ___  ____          (explaining   that  an  appellate   "argument  must  contain  the          contentions of  the appellant on  the issues  presented, and  the          reasons  therefor, with  citations to the  authorities, statutes,          and  parts of the  record relied on").   To make  a bad situation          worse,  the  argument  is bereft  of  any  indicium  that it  was          seasonably advanced and properly preserved in the lower court.                    The appellant's next asseveration is  that the evidence          does  not support  the jury  verdict.   Here, too,  the appellant          offers  us no assurance that the necessary steps were taken below          to  preserve the  point, and  the fragmented  record that  it has          produced does not afford any reliable  way to tell.  At any rate,          the  appellant furnishes no citations to the record in support of          its rhetoric, but asks in effect that we take its rodomontade  at          face value.  There is no justification for doing so.                    The appellant's third  argument implicates the  refusal          to  order  a remittitur.   Federal  law  governs the  question of                                          7          whether  the trial court should order a remittitur in a diversity          case.  See Blinzler  v. Marriott Int'l, Inc.,  ___ F.3d ___,  ___                 ___ ________     ____________________          (1st  Cir. 1996) [No.  95-2108, slip op.  at 30].   Under federal          law,  appellate review  of  a trial  court's  refusal to  trim  a          verdict  is necessarily limited  to whether the  court abused its          discretion  in  leaving the  award intact.    See, e.g.,  Ruiz v.                                                        ___  ____   ____          Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991); Wagenmann v.          __________________                                   _________          Adams, 829 F.2d 196, 215 (1st  Cir. 1987).  Though bareboned, the          _____          record makes  manifest the nature  and extent of  the plaintiff's          injuries.   We need not go into  graphic detail; even at a casual          glance, it beggars credulity to argue, as does R&D, that $700,000          in  damages for  a severed  limb and  other injuries  is "grossly          excessive,  inordinate, shocking to the  conscience . .  ., or so          high that it would be a denial of justice to permit it to stand."          Correa  v. Hospital San Francisco,  69 F.3d 1184,  1197 (1st Cir.          ______     ______________________          1995)  (quoting Grunenthal v. Long Island R.R. Co., 393 U.S. 156,                          __________    ____________________          159 & n.4 (1968)).                    The appellant's  final argument is that  it is entitled          to a new trial  because the district court allegedly  declined to          name  Flores,  the driver  of the  speeding  car, on  the verdict          form.2   But the meager  record that we  have before us  does not          indicate that R&D preserved an objection on this ground at trial,          and  preserving  the  point  is a  prerequisite  to  a successful                                        ____________________               2The  jury form  did  permit the  jurors  to find  that  the          driver's negligence  constituted the sole proximate  cause of the          plaintiff's injuries and  to exonerate  R&D in that  event.   The          jury found otherwise.                                          8          appeal.   See, e.g., Putnam  Resources v. Pateman,  958 F.2d 448,                    ___  ____  _________________    _______          456  (1st  Cir.  1992) ("Silence  after  instructions,  including          instructions  on the form  of the verdict  to be  returned by the          jury, typically constitutes  a waiver of  any objections.").   In          all  events, the  appellant  neglects to  mention the  singularly          important fact  that Flores was  not a party to  the lawsuit; the          plaintiff had failed properly to serve him, and the appellant had          not seen fit  to implead him.  The appellant  offers no plausible          theory why the district  judge, under these circumstances, should          have inserted Flores' name on the verdict form   and we can think          of none.                    The parties to an appeal must recognize that  rules are          not mere annoyances, to be swatted aside like so many flies, but,          rather,  that  rules  lie  near  the  epicenter of  the  judicial          process.   This  case  shows why  that  is so;  indeed,  we  have          canvassed   the  appellant's   asseverational  array   mainly  to          demonstrate that, even if we were inclined to do R&D's homework            and  that is not our place   R&D's substantial noncompliance with          the  rules would  hamstring  any  attempt  to review  the  issues          intelligently.  Of course, there must be some play in the joints.          No  one  is  perfect,   and  occasional  oversights     fribbling          infringements  of the  rules  that neither  create unfairness  to          one's adversary nor impair the court's ability  to comprehend and          scrutinize a  party's submissions    ordinarily will  not warrant          Draconian  consequences.   But major  infractions or  patterns of          repeated inattention warrant severe decrees.  "In the long run, .                                          9          . . strict adherence  to . . .  procedural requirements . . .  is          the  best guarantee  of  evenhanded administration  of the  law."          Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980).          _____________    ______                    We  hold that a  party's persistent  noncompliance with          appellate rules,  in and of itself,  constitutes sufficient cause          to dismiss its appeal.  See Kushner v. Winterthur Swiss Ins. Co.,                                  ___ _______    _________________________          620 F.2d 404, 407  (3d Cir. 1980) (dismissing appeal  for failure          to comply with FRAP rules); see  also Mortell v. Mortell Co., 887                                      ___  ____ _______    ___________          F.2d 1322, 1327 (7th Cir. 1989) (observing that failure to comply          with the  rules can be "fatal"  to an appeal); Katz  v. King, 627                                                         ____     ____          F.2d  568, 571  n.3  (1st Cir.  1980)  (warning that  failure  to          observe the rules may "result in the loss of valuable rights" and          listing dismissal as an appropriate response to such violations);          see also Fed. R. App. P. 3(a) (stipulating that the "[f]ailure of          ___ ____          an appellant to  take any step other than the  timely filing of a          notice of appeal" may be grounds "for such action as the court of          appeals  deems appropriate,  which may  include dismissal  of the          appeal").  We need not tarry in applying this holding to the case          at hand.   Appeals must be  prosecuted in substantial  compliance          with  applicable  procedural rules  and  this  appeal fails  that          test.3   The  violations  here are  nothing  short of  egregious.          Dismissal  is  plainly warranted.    Accordingly,  the appeal  is          dismissed with prejudice.                                            IV                                          IV                                        ____________________               3In all candor, moreover, the appeal   from what we can tell            appears to be totally devoid of merit.                                            10                    We have one more base to touch.  If the  shoe fits, the          court of  appeals may impose sanctions.   See Fed. R.  App. P. 38                                                    ___          (authorizing  awards of  "just  damages" and  "double costs"  for          frivolous  appeals); 28 U.S.C.   1912 (similar); 28 U.S.C.   1927          ("Any attorney  . . .  who so  multiplies the proceedings  in any          case unreasonably and vexatiously may be required by the court to          satisfy  personally the  excess costs,  expenses,  and attorneys'          fees  reasonably  incurred  because  of  such  conduct.").    The          plaintiff  urges that  this is  an appropriate  instance for  the          imposition of such sanctions.                    We have  said that "[a]ppellate sanctions  are aimed at          discourag[ing] litigants from wasting  time and resources of both          their  opponents and the judicial  system with arguments that are          without  merit."  Transnational  Corp. v. Rodio  & Ursilio, Ltd.,                            ____________________    ______________________          920  F.2d 1066,  1072  (1st  Cir.  1990);  see  also  Toscano  v.                                                     ___  ____  _______          Chandris, S.A., 934  F.2d 383,  387 (1st  Cir. 1991)  (explaining          ______________          that sanctions are a proper response to a frivolous  appeal).  By          like token,  sanctions are  an appropriate means  of discouraging          parties and their  counsel from  wasting the time  of courts  and          other  litigants  by prosecuting  appeals  in  ways that  deviate          substantially from  the rules.  See,  e.g., Calderon-Ontiveros v.                                          ___   ____  __________________          INS,  809 F.2d 1050, 1053 (5th Cir. 1986) (imposing sanctions for          ___          failure  to comply  with FRAP  rules); Hamblen  v. County  of Los                                                 _______     ______________          Angeles, 803 F.2d 462,  464-65 (9th Cir. 1986) (similar).   Here,          _______          the  imposition of  sanctions may  well serve  either or  both of          these purposes.                                          11                    In  order  to ensure  that we  hear  both sides  of the          story, we  direct the plaintiff's  counsel to prepare,  file, and          serve within two weeks of the date hereof an application for fees          and costs on appeal in the usual format, see, e.g., Weinberger v.                                                   ___  ____  __________          Great  N.  Nekoosa  Corp., 925  F.2d  518,  527  (1st Cir.  1991)          _________________________          (discussing  contents  of  fee  applications),  together  with  a          memorandum of  law, not to exceed ten pages in length, in support          of the  plaintiff's  request for  sanctions.   Within  two  weeks          thereafter, the appellant shall file a memorandum (subject to the          same  page limitation) attempting to show cause (if any there be)          why sanctions should not be assessed against R&D and its counsel,          jointly and  severally.  R&D  may, if it  so elects, file  at the          same  time  an affidavit  of  its  counsel  commenting  upon  the          reasonableness of the fees requested by the applicant.                    The  appeal is  dismissed  with prejudice.   We  retain                    The  appeal is  dismissed  with prejudice.   We  retain                    _________________________________________    __________          appellate jurisdiction for the purpose of further considering the          appellate jurisdiction for the purpose of further considering the          _________________________________________________________________          plaintiff's request  for sanctions.   The parties shall  make the          plaintiff's request  for sanctions.   The parties shall  make the          __________________________________    ___________________________          filings described herein within the assigned time parameters.  We          filings described herein within the assigned time parameters.  We          ____________________________________________________________   __          shall withhold mandate  until the question of  sanctions has been          shall withhold mandate  until the question of  sanctions has been          _________________________________________________________________          resolved.          resolved.          ________                    So Ordered.                    So Ordered.                    __________                                          12
