
USCA1 Opinion

	




          January 6, 1993                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1458                           GOLDMAN, ANTONETTI, FERRAIUOLI,                          AXTMAYER & HERTELL, A PARTNERSHIP,                                 Plaintiff, Appellee,                                          v.                         MEDFIT INTERNATIONAL, INC., ET. AL.,                                Defendants, Appellees,                                  HECTOR RODRIGUEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Hector L. Rodriguez on brief pro se.            ___________________            Juan  R. Marchand  Quintero with  whom  Rivera Cestero  & Marchand            ___________________________             __________________________        Quintero and Miguel J. Rodriguez-Marxuach were on brief for appellees.        ________     ____________________________                                 ____________________                                 ____________________                      STAHL, Circuit Judge.   Defendant-appellant  Hector                             _____________            Rodriguez ("Rodriguez" or "defendant") appeals from the entry            of a default judgment against him in the amount of $91,294.38            plus interest.  We affirm.                                          I.                                          I.                                          __                      RELEVANT PROCEDURAL AND FACTUAL BACKGROUND                      RELEVANT PROCEDURAL AND FACTUAL BACKGROUND                      __________________________________________                      On June  6,  1990,  the Puerto  Rico  law  firm  of            Goldman,   Antonetti,   Ferraiuoli,   Axtmayer    &   Hertell            ("GAFAH")1  filed a complaint  against Rodriguez, Randy Smith            ("Smith"), George and Lorin Croce, and Medfit  International,            Inc.  ("Medfit"),  seeking payment  of  legal fees  totalling            $101,294.38.2    The  complaint alleged  that  defendants had            breached  an agreement  with Ferraiuoli,  Axtmayer &  Hertell            ("GAFAH's predecessor firm") calling for plaintiff to provide            defendants with professional  legal services relative to  the            formation,  development,  and  financing  of  a  latex  glove            manufacturing business.3                                              ____________________            1.  GAFAH was  the original plaintiff in this case.  However,            plaintiff-appellee Goldman, Antonetti, Ferraiuoli  & Axtmayer            ("GAFA"  or  "plaintiff")  was  substituted for  GAFAH  after            Hertell left the partnership in September of 1990.            2.  Default was subsequently entered against Smith and Medfit            for  failure to  answer the  complaint.   The action  against            George and Lorin Croce was dismissed with prejudice, pursuant            to  Fed.  R.  Civ. P.  41(a)(1),  after  they  agreed to  pay            plaintiff  $10,000.00 towards  the legal  fees due.   None of            these defendants is a party to this appeal.              3.  More  specifically, plaintiff  claims that  it agreed  to            render professional services on an hourly fee basis, and that            its  fees would be payable  by Rodriguez and Smith personally                                         -2-                                          2                      Subsequently,  Rodriguez  moved   to  dismiss   the            complaint  pursuant to  Rules  4(e) and  12(b)(1)-(7) of  the            Federal  Rules  of  Civil  Procedure.   After  reviewing  the            record, the  district court  treated Rodriguez's motion  as a            motion for summary judgment, and denied it on May 8, 1991.                      On  August 2,  1991,  the district  court issued  a            scheduling order setting a pretrial and settlement conference            for November 14,  1991, and  a bench trial  for December  16,            1991.   That  order warned  the parties  that any  failure to            comply with its provisions could result  in the imposition of            sanctions  under Fed.  R. Civ.  P. 16(f).   This  warning was            repeated in an October 18,  1991, order which rescheduled the            pretrial  and settlement  conference to  November 15,  1991.4            Despite these  warnings, Rodriguez  failed to appear  for the            November  15,  1991,   pretrial  and  settlement  conference.                                            ____________________            "until  such time as financing was  obtained" for their latex            glove manufacturing  project.  Rodriguez, on  the other hand,            contends  to have  entered into  an oral  fee  agreement with            plaintiff  on behalf  of  Medfit Products  Puerto Rico,  Inc.                       __ ______  __            ("MPPR").  Rodriguez also claims that the agreement set forth            a contingent  fee arrangement,  "said  contingency being  the            successful financing and closing  of the proposed latex glove            project[,]"  and denies  that he  is or  ever was  personally            responsible for payment of the legal fees owed to plaintiff.             4.  The district court later continued the December 16, 1991,            trial date until January 21, 1992.                                         -3-                                          3            Consequently, the district  court entered a partial  judgment            dismissing Rodriguez's counterclaims and cross-claim.5                        On  January  17,  1992,  Rodriguez  telephoned  the            district court's  chambers to notify the court  that he would            not  appear for the January  21, 1992, trial.   Rodriguez did            not, however, request a continuance or provide the court with            a   valid  justification   for   his   anticipated   absence.            Accordingly, when  Rodriguez failed to appear  for trial, the            district  court found that he  was in default.   The district            court then held a bench trial on the question of damages, and            determined  that plaintiff was entitled to recover $91,294.38            plus  interest from  Rodriguez and  the  previously defaulted            Smith  and  Medfit.    The  district  court  found  all three            defendants jointly and severally liable for this judgment.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      On   appeal,   Rodriguez   makes  three   principal            arguments:  (1) that  the district court erred in  failing to            grant  his  motion to  dismiss; (2)  that the  district court            abused  its discretion  in dismissing  his counterclaims  and            cross-claim;  and  (3) that  the  district  court abused  its                                            ____________________            5.  In  so  doing,  the  district  court  also  took note  of            Rodriguez's  failure  to prepare  a  pretrial  order and  his            failure otherwise to comply with its orders.                                         -4-                                          4            discretion  in entering  default judgment  against him.6   We            discuss each argument in turn.            A.  Rodriguez's Motion to Dismiss            _________________________________                      Rodriguez  first  challenges  the district  court's            denial of  his motion to  dismiss, arguing that  the district            court erroneously relied on  certain allegations contained in            Jose A. Axtmayer's unsworn  statement signed under penalty of            perjury to find: (1) that a genuine, material factual dispute            existed  over the  substance of  the oral fee  agreement; (2)            that Rodriguez was subject to the in personam jurisdiction of                                              __ ________            the  district   court;  and   (3)  that  MPPR   was  not   an            indispensable party under Fed. R. Civ. P. 19(b).  We disagree            with Rodriguez's contentions.                 1.  Standard of Review                 ______________________                      There  is  no dispute  that  Rodriguez's  motion to            dismiss  was  properly  treated   as  a  motion  for  summary            judgment.   See Fed. R. Civ. P. 12(c).  Appellate review of a                        ___            district court order denying a motion for summary judgment is            plenary.  Federal Deposit Ins. Corp. v. World Univ. Inc., No.                      __________________________    ________________                                            ____________________            6.  Rodriguez  also litters  his brief  and reply  brief with            one-sentence  allegations of  error  that are  accompanied by            neither  argument nor  supporting authority.   Time  and time            again, we  have warned  litigants  that "issues  raised in  a            perfunctory manner, unaccompanied by some effort at developed            argumentation,  are  deem waived."    See,  e.g., Elgabri  v.                                                  ___   ____  _______            Lekas, 964 F.2d  1255, 1261 (1st  Cir. 1992) (quoting  United            _____                                                  ______            States v. Zannino, 895  F.2d 1, 17 (1st Cir.),  cert. denied,            ______    _______                               _____ ______            494  U.S. 1082 (1990)).   Accordingly, we do  not address the            merits of Rodriguez's one-sentence arguments.                                         -5-                                          5            92-1389, slip  op. at 4  (1st Cir. Oct.  22, 1992).   Summary            judgment shall  be granted only when  the record demonstrates            that there  is no genuine issue  as to any material  fact and            that the moving party is entitled to judgment as a  matter of            law.   Fed.  R. Civ.  P.  56(c); see  also  Celotex Corp.  v.                                             ___  ____  _____________            Catrett,  477 U.S.  317, 323  (1986).   The party  moving for            _______            summary  judgment "bears  both the  initial and  the ultimate            burden  of  demonstrating its  legal  entitlement  to summary            judgment."   Lopez v.  Corporacion Azucarera de  Puerto Rico,                         _____     _____________________________________            938 F.2d 1510, 1516  (1st Cir. 1991).  Furthermore,  like the            district court, we "`must view the entire record in the light            most  hospitable to  the  party  opposing  summary  judgment,            indulging all reasonable inferences  in that party's favor.'"            Mesnick v. General  Elec. Co.,  950 F.2d 816,  822 (1st  Cir.            _______    __________________            1991) (citing  Griggs-Ryan v. Smith,  904 F.2d 112,  115 (1st                           ___________    _____            Cir.  1990)),   cert.  denied,   112  S.  Ct.   2965  (1992).                            _____  ______            "Nonetheless,  the  nonmovant  cannot  content  himself  with            unsupported allegations; rather,  he must set  forth specific            facts, in  suitable evidentiary  form, in order  to establish            the existence of a genuine issue for trial."  Rivera-Muriente                                                          _______________            v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir. 1992).                 _____________                 2.  The Unsworn Statement                 _________________________                      Axtmayer's unsworn statement  signed under  penalty            of  perjury     was  submitted  in   support  of  plaintiff's                                         -6-                                          6            opposition  to  Rodriguez's motion  to  dismiss.7   Rodriguez            argues that the district  court's reliance on the allegations            contained  in  Axtmayer's  unsworn statement  constitutes  an            abuse of discretion because the statement fails to conform to            the requirements of Fed. R. Civ. P. 56(e).  We disagree.                       Under  federal  law,  an unsworn  statement  signed            under penalty  of perjury  may be used,  in lieu  of a  sworn            statement  or affidavit, to  support or  oppose a  motion for            summary judgment.  See 28 U.S.C.    1746;8  see also Pfeil v.                               ___                      ___ ____ _____                                            ____________________            7.  Axtmayer's  statement alleges, inter alia, that Rodriguez                                               _____ ____            and Smith retained GAFAH's predecessor firm to represent them            in  connection  with  the  establishment  of  a  latex  glove            manufacturing  facility  in Puerto  Rico.   Axtmayer  further            alleges  that the  firm  agreed to  provide the  professional            services  requested "on a per  hour fee basis  to be invoiced            monthly and payable by Rodriguez and Smith until such time as            financing was  obtained for the project."   Finally, Axtmayer            states  that  after  Medfit   Products  of  Puerto  Rico  was            incorporated in Puerto Rico,  Rodriguez and Smith agreed that            they, along  with Medfit and  George and  Lorin Croce,  "were            [the firm's] clients in  their individual capacities and were            personal[ly],  jointly  and  severally  responsible  for  the            payment  of the  services rendered  and expenses  incurred by            [the firm] as a result of their representation."            8.  In relevant part, 28 U.S.C.   1746 provides:                 Wherever, under any law of the United States or under               any  rule,  regulation,   order,  or  requirement  made               pursuant to law, any matter is required or permitted to               be supported, evidenced, established,  or proved by the               sworn    declaration,     verification,    certificate,               statement, oath, or affidavit, in writing of the person               making the  same . . . such matter may, with like force               and  effect, be  supported, evidenced,  established, or               proved   by   the  unsworn   declaration,  certificate,               verification,  or statement, in  writing of such person               which is  subscribed by him,  as true under  penalty of               perjury,  and  dated,  in  substantially  the following               form:                                          -7-                                          7            Rogers,  757 F.2d 850, 859  (7th Cir. 1985)  (holding that an            ______            affidavit failing to satisfy the  "technical, non-substantive            requirements of  execution" may  be considered  as part  of a            party's opposition to a  motion for summary judgment provided            the affidavit complies with 28  U.S.C.   1746), cert. denied,                                                            _____ ______            475 U.S. 1107 (1986);  Davis v. Frapolly, 756 F.  Supp. 1065,                                   _____    ________            1067 (N.D. Ill. 1991) (holding that unsworn statements signed            under  penalty of perjury  may be  considered as  evidence in            support  of   a  motion  for  summary   judgment).    Because            Axtmayer's unsworn written  statement meets the  requirements            of 28 U.S.C.   1746, the  district court was entitled to give            it  the  same  weight  as an  affidavit  when  it  considered            defendant's  motion.   Therefore, because  Axtmayer's unsworn            statement established  the existence  of a  genuine, material            factual dispute concerning the substance of the parties' oral            fee agreement, the district court properly denied Rodriguez's            motion to dismiss.                 3.  In Personam Jurisdiction                 ____________________________                      As  noted, Rodriguez  also challenges  the district            court's ruling  that it  had personal jurisdiction  over him.                                            ____________________                    . . . .                      If executed within  the United States,  its                    territories,  possessions, or  commonwealths:                    "I declare  (or  certify, verify,  or  state)                    under penalty of  perjury that the  foregoing                    is true and correct.  Executed on (date).                           (Signature)".                                         -8-                                          8            In so doing, Rodriguez first contends that the district court            should not  have  considered the  allegations  in  Axtmayer's            statement  when  it  decided  the  question  of  in  personam                                                             __  ________            jurisdiction.9  However,  Rodriguez's argument is  undermined            by  the fact  that a  district court  may go beyond  the four            corners of the pleadings  and consider materials presented in            support  of a  motion  to dismiss  for  lack of  in  personam                                                             __  ________            jurisdiction.   See American  Express Int'l, Inc.  v. Mendez-                            ___ _____________________________     _______            Capellan,  889 F.2d  1175, 1178  (1st Cir.  1989) (affidavits            ________            presented  on a  motion to  dismiss for  lack of  in personam                                                              __ ________            jurisdiction,  which was  converted to  a motion  for summary            judgment,  deemed  to  be  "available  for  either  motion").            Accordingly,  the  district  court   committed  no  error  in            considering the Axtmayer statement. Rodriguez's attack on the            merits of the district  court's ruling is equally unavailing.            "It  is  well  established  that  in  diversity  cases,  `the            district court's  personal  jurisdiction over  a  nonresident            defendant  is  governed by  the  forum's long-arm  statute.'"            Pizarro v. Hoteles Concorde Int'l, C.A.,  907 F.2d 1256, 1258            _______    ____________________________            (1st Cir.  1990) (quoting  Mangual v. General  Battery Corp.,                                       _______    ______________________            710  F.2d 15,  19 (1st  Cir. 1983)).   Rule 4.7(a)(1)  of the            Puerto  Rico  Rules of  Civil  Procedure,  the Commonwealth's                                            ____________________            9.  Axtmayer's  statement  asserts that  Rodriguez personally            initiated the  negotiations which  led to  the representation            and  fee agreements with  GAFAH's predecessor firm  in a 1987            visit to the firm's offices.                                         -9-                                          9            long-arm  statute,  allows  Puerto  Rico   courts  to  assert            personal  jurisdiction over a  non-resident defendant "if the            action or claim arises because said person . . . [t]ransacted            business in Puerto Rico personally or through an agent .  . .            ."  P.R.  Laws Ann. tit. 19,  App. III, R.  4.7(a)(1) (1983);            see also Pizarro,  907 F.2d at  1258.   However, for such  an            ___ ____ _______            assertion of  jurisdiction to be permissible,  two additional            tests  must be met.  First, plaintiff's cause of action "must            arise out  of the defendant's action within the forum state."            Id. (quoting  Escude Cruz v. Ortho  Pharmaceutical Corp., 619            ___           ___________    ___________________________            F.2d 902, 905 (1st Cir. 1980)).   In addition, of course, the            contacts among the non-resident  defendant, forum, and  cause            of  action must  rise  to  a  level  where  the  due  process            requirements  of "fair  play  and  substantial justice,"  see                                                                      ___            International  Shoe  Co. v.  Washington,  326  U.S. 310,  316            ________________________     __________            (1945), are met.  See id.10                              ___ ___                                            ____________________            10.  The  Supreme  Court has  elaborated  upon this  "minimum            contacts" rule:                      The application of [the minimum contacts]                      rule  will  vary  with  the  quality  and                      nature of the  defendant's activity,  but                      it is essential that there be some act by                      which  the defendant  purposefully avails                      itself  of  the  privilege of  conducting                      activities within the  forum state,  thus                      invoking the benefits and  protections of                      its laws.            Hanson v. Denckla, 357 U.S. 235, 253 (1958).            ______    _______                                         -10-                                          10                      Here,  there is  undisputed  record  evidence  that            Rodriguez  initiated  and  personally  participated   in  the            negotiations  which led  to the  fee agreement  which is  the            subject of this litigation, and that at least some portion of            these negotiations took place  at GAFAH's predecessor  firm's            offices in Puerto Rico.  Thus, it  is clear that Rodriguez is            subject  to  the reach  of 4.7(a)(1)  and  that the  cause of            action  arose out of  Rodriguez's action in  the forum state.            Furthermore, the record reveals that Rodriguez was personally            and continuously involved in plaintiff's efforts to assist in            the formation, development, and  financing of MPPR, which was            to be a Puerto  Rico corporation.11  This fact,  when coupled            with  Rodriguez's  solicitation and  subsequent  retention of            plaintiff,  leaves little  doubt that  Rodriguez purposefully            availed himself "of  the privilege  of conducting  activities            within  the forum  .  . .,  thus  invoking the  benefits  and            protections  of  its  laws."    Hanson,  357   U.S.  at  253.                                            ______            Therefore,  we   find  no  error  in   the  district  court's            conclusion  that its  assertion of  in  personam jurisdiction                                                __  ________            over Rodriguez would not offend either Puerto Rico's long-arm            statute  or  the Due  Process  Clause  of the  United  States            Constitution.                 4.  Rule 19(b)                 ______________                                            ____________________            11.  These  activities took  place over  a two-year  span and            allegedly  generated  the  $101,294.38  of  unpaid  fees  and            expenses plaintiff is seeking.                                         -11-                                          11                      Finally, Rodriguez argues  that the district  court            erred in refusing to grant his motion to dismiss on the basis            of  plaintiff's  failure  to   join  MPPR  as  a  non-diverse            indispensable party  under Fed.  R.  Civ. P.  19(b).12   This            argument does not require extended discussion.                      The  district court  ruled that  because defendants            and  the  non-diverse MPPR  were  alleged to  be  jointly and            severally liable  for the legal fees  owed plaintiff, joinder            of  MPPR was not mandatory,  but was merely  permissive.  The            district court's  ruling on  this issue is  patently correct.            See Temple v. Synthes Corp., Ltd., 111 S. Ct. 315, 316 (1990)            ___ ______    ___________________            (citing to the Advisory Committee  Notes to Rule 19(a), which            explicitly state  that "a  tortfeasor with the  usual `joint-            and-several'  liability is  merely a  permissive party  to an            action against another with like  liability.").  Accordingly,            we find no  error in  the district court's  refusal to  grant            Rodriguez's  motion insofar as it is premised on Fed. R. Civ.            P. 19(b).            B.  Dismissal of Rodriguez's Counterclaims and Cross-claim            __________________________________________________________                      As a result of Rodriguez's failure to appear at the            scheduled pretrial and settlement  conference, his failure to            prepare a pretrial order, and his failure to otherwise comply            with the  court's orders,  the district court  dismissed with                                            ____________________            12.  Joinder of  MPPR, a Puerto Rico  corporation, would have            destroyed the district court's subject matter jurisdiction in            this diversity case.                                         -12-                                          12            prejudice  Rodriguez's  counterclaims and  cross-claim.   The            dismissal  was  premised  upon   Fed.  R.  Civ.  P.  16(f).13            Rodriguez  claims that  the  district court's  imposition  of            these sanctions  constitutes an abuse of  discretion.  Again,            we disagree.                      As an  initial matter,  we note that  "[t]he proper            performance of the case-management function requires that the            trial  court  be  allowed  great latitude  in  applying  Rule            16(f)."  Veranda Beach  Club v. Western Surety Co.,  936 F.2d                     ___________________    __________________            1364, 1370 (1st  Cir. 1991);  see also  Barreto v.  Citibank,                                          ___ ____  _______     _________            N.A., 907  F.2d 15, 16  (1st Cir.  1990) (taking note  of the            ____            "well established principle that discovery orders, other pre-            trial  orders,   and,  indeed,   all  orders   governing  the            management of a  case are enforceable under  pain of sanction                                            ____________________            13.  In pertinent part, Fed. R. Civ. P. 16(f) provides:                    If a party or  party's attorney fails to obey                    a scheduling  or  pretrial order,  or  if  no                    appearance is made on behalf of a  party at a                    scheduling  or pretrial  conference, or  if a                    party  or  party's attorney  is substantially                    unprepared to participate in  the conference,                    or if  a party  or party's attorney  fails to                    participate  in good  faith, the  judge, upon                    motion or  the  judge's own  initiative,  may                    make such  orders with regard thereto  as are                    just,  and among  others  any of  the  orders                    provided in Rule 37(b)(2)(B),(C),(D). . . .                 The  orders  provided  for in  Fed.  R.  Civ.  P. 37(b)(2)          include  orders  "striking out  pleadings  or  parts thereof,  or          staying  further  proceedings  until  the  order  is  obeyed,  or                                                                         __          dismissing  the action  or  proceeding or  any  part thereof,  or          __________  ___ ______  __  __________ __  ___  ____ _______          rendering a  judgment by default against  the disobedient party."          Fed. R. Civ. P. 37(b)(2)(C) (emphasis added).                                          -13-                                          13            for  unjustifiable  violation.").    As  such,  we  review  a            district  court's selection and  imposition of sanctions only            for  abuse of  discretion.   See  National  Hockey League  v.                                         ___  _______________________            Metropolitan Hockey  Club, 427 U.S. 639,  642 (1976); Veranda            _________________________                             _______            Beach Club, 936 F.2d at 1370.              __________                      We also  recognize that "`dismissal  with prejudice            is a harsh sanction  which runs counter to our  strong policy            favoring the disposition of  cases on the merits.'"   Marx v.                                                                  ____            Kelly, Hart & Hallman, P.C.,  929 F.2d 8, 10 (1st Cir.  1991)            ___________________________            (quoting Figueroa Ruiz  v. Alegria,  896 F.2d  645, 647  (1st                     _____________     _______            Cir. 1990)).  Nonetheless, the sanction of dismissal "must be            available  to the  district court  in appropriate  cases, not            merely  to  penalize those  whose  conduct may  be  deemed to            warrant  such a  sanction, but  to deter  those who  might be            tempted  to such conduct in the absence of such a deterrent."            National Hockey League, 427  U.S. at 643; see also  Marx, 929            ______________________                    ___ ____  ____            F.2d  at  10; Barreto,  907 F.2d  at 16.   Conduct  which may                          _______            warrant  dismissal  of   a  claim  with   prejudice  includes            "`disobedience  of  court  orders,  [disregarding]  warnings,            [and] contumacious conduct . . . .'"  Figueroa Ruiz, 896 F.2d                                                  _____________            at 648 (quoting Cosme  Nieves v. Deshler, 826 F.2d  1, 2 (1st                            _____________    _______            Cir. 1987)).                      As  detailed above, the  district court  issued two            separate orders which notified the parties as to the date and            time  of  the  November  15, 1991,  pretrial  and  settlement                                         -14-                                          14            conference.    In  addition,  both orders  provided  explicit            warnings to the  parties that failure to comply  could result            in the imposition of  sanctions under Fed. R. Civ.  P. 16(f).            Despite ample notice and repeated warnings, Rodriguez did not            attend the  pretrial and settlement  conference.  Nor  did he            provide the court with either proper notice that he would not            appear or  a compelling  justification for  his absence.   As            such, we cannot say the district court  abused its discretion            in construing Rodriguez's absence  as "a willful disregard of            the Court's procedure and  time" and therefore dismissing his            counterclaims and cross-claim.14            C.  Default Judgment            ____________________                      On February 28,  1992, the  district court  entered            default judgment against Rodriguez  for his failure to appear            at trial.  Rodriguez challenges this order,  arguing that the                                            ____________________            14.  We  do note  that on  November 14,  1991, at  3:22 p.m.,            Rodriguez  attempted,  via  telecopier,  to   file  with  the                                   ___            district court a  motion for an extension of time in which to            compromise  the controversy.   However, the  record indicates            that defendant's  motion was not actually  received and filed            by  the district court until November 15, 1991, at 3:14 p.m.,            after the  scheduled 2:30  p.m. conference had  already taken            _____            place.   Rodriguez  also  claims that  at  the same  time  he            transmitted his motion, he  notified the court that he  would            not be  attending the conference scheduled  for the following            day.   However,  even were  we to  credit this  assertion, it            would not provide us with a sufficient basis  for determining            that  the   district  court's   actions  were  an   abuse  of            discretion.                                         -15-                                          15            entry  of default  constitutes  an abuse  of discretion  both            because  (1) the  district court  failed  to give  him notice            pursuant  to Fed.  R.  Civ. P.  55(b)(2),  and (2)  plaintiff            failed  to prove  its case on  the merits  at trial.15   Here            too, Rodriguez's arguments are unavailing.                      In  pertinent  part,  Fed.  R. Civ.  P.  55  (b)(2)            provides:   "[If] the party  against whom judgment by default                                         _______ ____ ________ __ _______            is sought has appeared in  the action, the party . .  . shall            __ ______            be served written notice  of the application for judgment  at                                      __ ___ ___________ ___ ________            least  3  days prior  to  the hearing  on  such application."            (Emphasis  supplied).   By  its very  terms, therefore,  Rule            55(b)(2)  does not apply where,  as here, there  is no motion            for  default  pending and  where the  court  has, on  its own            motion,  found a  party to  be in  default for  a failure  to            appear.  Pertinent authority  supports such a construction of            the Rule.    See  Anilina Fabrique  de  Colorants  v.  Aakash                         ___  _______________________________      ______            Chemicals  and Dyestuffs, Inc.,  856 F.2d 873,  877 (7th Cir.            ______________________________            1988)  (notice requirement  of Rule  55(b)(2) does  not apply            where district court entered default order on its own motion)                                            ____________________            15.  Rodriguez also objects  to the holding of a  bench trial            despite  the fact that he had properly requested a jury trial            in his answer.   However, "after a default judgment  has been            entered under Fed. R. Civ. P. 37(b)(2), a party has no  right            to jury trial under either Fed. R. Civ. P. 55(b)(2), . . . or            the Seventh  Amendment."  Adriana Int'l Corp. v. Thoeren, 913                                      ___________________    _______            F.2d 1406, 1414  (9th Cir.  1990), cert. denied,  111 S.  Ct.                                               _____ ______            1019  (1991); see also Eisler v. Stritzler, 535 F.2d 148, 153                          ___ ____ ______    _________            (1st Cir.  1976)  (holding  that  after entry  of  a  default            judgment, a hearing,  but not  a jury trial,  is required  to            assess damages).                                         -16-                                          16            (citing Tolliver v.  Northrop Corp., 786  F.2d 316, 318  (7th                    ________     ______________            Cir. 1986));  see also  Ringgold Corp. v.  Worrall, 880  F.2d                          ___ ____  ______________     _______            1138,  1141-42 (9th  Cir. 1989)  (notice requirement  of Rule            55(b)(2) does not apply where party is defaulted for  failing            to  attend the first day of a trial scheduled months before);            Brock v. Unique Racquetball and Health Clubs, Inc.,  786 F.2d            _____    _________________________________________            61, 65 (2d  Cir. 1986) (notice  requirement of Rule  55(b)(2)            does not apply where party is defaulted for defense counsel's            and  parties' failure to appear  at a trial  that already has            commenced).   Accordingly, Rule 55(b)(2) does  not provide us            with  a basis for setting aside the district court's entry of            default.16                      Rodriguez  also argues  that the  entry of  default            against  him was  an  abuse of  discretion because  plaintiff            failed to prove its case on the merits at trial.  Defendant's            argument ignores the maxim that an entry of a default against            a  defendant  establishes  the  defendant's  liability.   See                                                                      ___            Brockton Savings Bank v.  Peat, Marwick, Mitchell & Co.,  771            _____________________     _____________________________            F.2d 5 (1st Cir. 1985) ("[T]here is no question that, default                                            ____________________            16.  Our  refusal to  apply  the notice  requirement of  Rule            55(b)(2)  to  this case  can hardly  be  viewed as  unfair to            Rodriguez.   Clearly, the purpose of Rule 55(b)(2) is to make            certain  that   a  defaulted  party  is  on   notice  of  the            possibility that a default  judgment might be entered against            him/her.   Here, Rodriguez  admitted in  an affidavit  to his            awareness  "that  the court  had  positioned  itself to  hold            [Rodriguez] liable  by default or  otherwise" at the  time he                                __ _______ __  _________            failed  to appear  for trial.    Thus, the  situation against            which Rule 55(b)(2) guards was not present in this instance.                                         -17-                                          17            having  been  entered, each  of [plaintiff's]  allegations of            fact must be taken as true and  each of its [] claims must be            considered established  as a matter of  law."), cert. denied,                                                            _____ ______            475  U.S. 1018 (1986); see also United States v. DiMucci, 879                                   ___ ____ _____________    _______            F.2d  1488, 1497  (7th  Cir. 1989)  ("As  a general  rule,  a            default  judgment  establishes,  as  a matter  of  law,  that            defendants are liable to plaintiff as to each cause of action            alleged in  the complaint.");  Eisler v. Stritzler,  535 F.2d                                                     _________            148, 153 (1st Cir. 1976) (noting that "[t]he default judgment            on  the well-pleaded  allegations  in  plaintiff's  complaint            established  .  .  .  defendant's liability.").    Thus,  the            district  court's entry  of  default established  Rodriguez's            liability for the legal fees due.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the foregoing reasons, the challenged district            court orders are affirmed.                        Affirmed.  Double costs to appellee.17                      Affirmed.  Double costs to appellee.                      _________  _________________________                                            ____________________            17.  We award  double costs  in response to  appellee's well-            grounded request for sanctions under Fed. R. App. P. 38.                                         -18-                                          18
