
USCA1 Opinion

	




          February 2, 1995  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 94-1757                   CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND                       SUPREME ELECTRONICS DISTRIBUTORS, INC.,                               Plaintiffs, Appellants,                                          v.                       THE FIRST NATIONAL BANK OF BOSTON, N.A.,                                 Defendant, Appellee.                                 ____________________          No. 94-1788                   CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND                        SUPREME ELECTRONICS DISTRIBUTORS, INC.                                Plaintiffs, Appellees,                                          v.                       THE FIRST NATIONAL BANK OF BOSTON, N.A.,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The per curiam of this court, issued on January 26, 1995, is          amended as follows:               Coversheet, second docket number  should read No. 94-1788 in          place of No. 94-1778.           January 26, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1757                   CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND                       SUPREME ELECTRONICS DISTRIBUTORS, INC.,                               Plaintiffs, Appellants,                                          v.                       THE FIRST NATIONAL BANK OF BOSTON, N.A.,                                 Defendant, Appellee.                                 ____________________        No. 94-1788                   CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND                        SUPREME ELECTRONICS DISTRIBUTORS, INC.                                Plaintiffs, Appellees,                                          v.                       THE FIRST NATIONAL BANK OF BOSTON, N.A.,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                          _____________                                 ____________________               Hector  F. Martinez-Jimenez  for  Caribbean  Wholesales  and               ___________________________          Services Corporation and Supreme Electronics Distributors, Inc.               Manuel Moreda-Toledo for The  First National Bank of Boston,               ____________________          N.A.                                 ____________________                                 ____________________               Per  Curiam.   This  was  once  a potentially  complex  case               ___________          concerning commercial  and banking events and  practice.  Because          of  procedural  default, it  now  presents  only easily  resolved          issues concerning the district court's exercise of discretion.               The plaintiffs, Caribbean Wholesales and Service Corporation          and Supreme Electronics Distributors (Caribbean), a wholesaler of          electronic appliances, alleged that Novedades Guerra (Novedades),          a local retailer, purchased appliances from Caribbean with checks          that were returned by  the defendant, the First National  Bank of          Boston (FNBB), for lack  of sufficient funds.  Unable  to collect          from Novedades, Caribbean filed this  action to collect from FNBB          the  sum  of the  returned checks,  plus  lost profits  and other          damages totalling  $3,000,000.  The allegations  of the complaint          sounded  in  contract,  negligence, breach  of  fiduciary duties,          unsound banking practices, tortious interference with contractual          opportunities, and, principally, fraud.   The essential theme was          that FNBB  induced  Caribbean to  sell  appliances on  credit  to          Novedades   upon  the  representation   that  FNBB   would  honor          Novedades'  checks,  that  FNBB  reneged  on  its representation,          failed  to  monitor  Novedades,  and  caused  checks  payable  to          Caribbean to be dishonored.               The  record reveals some 169  docket entries in a three-year          period -- over one a week -- of motions, requests for extensions,          orders, responses,  replies to responses,  objections, opposition          to  objections,  notices, and  reports.    The following  crucial          events took place fifteen months after filing of the complaint:                                         -5-                    March 15, 1993 -- FNBB moves for summary judgment.               No opposition is  filed within ten days,  as Local Rule               311.5 required,  nor is any request  made for extension               of time.                    March   30,  1993   --  At   pretrial  conference,               plaintiffs request an extension  until April 12 to file               an  opposition to  summary judgment;  this  is granted.               But no opposition was filed.                    March  31,   1993  --  Plaintiffs'  counsel   moves  to               withdraw.                    April 7,  1993 --  Plaintiff and counsel  have composed               their differences, and request another extension until April               27.  This is denied.                    April 27, 1993 --  Plaintiffs submit yet another motion               asking  for "a  ten  working day  extension"  to file  their               opposition.  This also is denied.                    April  28, 1993  --  With only  the bank's  uncontested               factual   submission  before   him,  the   magistrate  judge               recommends granting the summary judgment motion.                    May 13, 1993 -- The  district court approves the report               of the magistrate judge.   On the same day,  plaintiffs file               an opposition  to the  report, accompanied  by a request  to               file  a  second amended  complaint  and  a motion  tendering               anticipatory  testimony by  an expert  witness who  had been               excluded.                                         -6-               Following this, the  court generously set  aside its May  13          judgment,  accepted  "Plaintiffs'  Objection  to  the  Magistrate          Judge's Report and Recommendation," and granted leave to  FNBB to          file an opposition.  FNBB promptly complied, making the following          salient points:               1.   The late  request to  amend, offered four  months after          the December 22, 1992, Initial Scheduling Conference Order (which          established December 31,  1992, as the cut-off date  for amending          pleadings, and which stated, "These dates shall not be changed.")          should not be  allowed.  The bank  cited Riofrio Anda  v. Ralston                                                   ____________     _______          Purina,  Co., 959 F.2d 1149,  1154-55 (1st Cir.  1992) (denial of          ____________          motion to amend two months after deadline.)               2.   The  motion  to  allow  the  anticipated  testimony  of          plaintiffs'  expert   witness  Myers   should  not  be   allowed.          Plaintiffs  had   not  complied   with  the   Initial  Scheduling          Conference Order (concerning notice of the identity of a proposed          witness,  a   short  statement  of  the   subject  of  testimony,          justification  of a  late addition,  and a  copy of  the expert's          curriculum vitae).   The order had stated:   "Non-compliance with          this order will  result in  such witnesses not  being allowed  to          testify at  trial."  Moreover,  the magistrate  judge's order  of          March 16, rejecting the witness, had been appealed by plaintiffs,          and previously affirmed by the district court on April 13.               3.   The  magistrate  judge's  denial of  plaintiffs'  third          request for an extension of time to file objections to the report          should be upheld.                                           -7-               4.   On  the  merits  of   plaintiffs'  claim  that  summary          judgment  was not  warranted,  plaintiffs failed  to present  any          argument before the magistrate judge and may not  use the de novo                                                                    _______          review proceedings afforded by Fed. R. Civ. P. 72(b) to offer new          material.  FNBB cited Paterson-Leitch v. Massachusetts  Municipal                                _______________    ________________________          Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir.  1988), where we          ___________________          said:  "In  a nutshell, the argument .  . . could have  been, but          inexplicably  was not, presented  to the magistrate  in the first          instance.  The appellant is not entitled to yet another nibble at          this particular apple."   See also Borden v. Secretary  of Health                                    ________ ______    ____________________          and Human Servs., 836 F.2d 4, 6 (1st Cir. 1987).           ________________               The district court, after  considering the Objection and the          Opposition,  first  denied  plaintiffs  leave to  file  a  Second          Amended  Complaint,  then  refused   to  admit  the   anticipated          testimony  of  plaintiffs' expert  witness.    Having made  these          rulings,   the  court   then   denied   plaintiffs'  motion   for          reconsideration  and  reaffirmed its  adoption of  the magistrate          judge's   Report  and   Recommendation  on   the  basis   of  the          uncontroverted facts  that were before him.   The court thereupon          entered summary judgment for FNBB.               We  readily   affirm.    The  district   court  took  action          extraordinarily  favorable  to plaintiffs  in  entertaining their          untimely  objections  to the  magistrate  judge's  Report in  the          absence of  any meritorious  excuse.   The  court's most  crucial          decision  was  to refuse  the request  to  file a  Second Amended          Complaint.   That this was  within its discretion  is clear.   We                                         -8-          doubt that  a case  can  be found  where the  refusal  of such  a          request, made four months after a deadline for amended pleadings,          and in the absence  of significant extenuating circumstances, has          been reversed for abuse  of discretion.  To the  extent that such          an  amended pleading  replicated  its predecessor,  its exclusion          made little  difference; to  the extent  that  it introduced  new          material,  its admission at such a late date would have initiated          a  significantly  altered  litigation.   Moreover,  allowing  new          material and  issues based therein,  which were not  presented to          the  magistrate  judge,  would  have  violated  the  longstanding          principle recognized in Paterson- Leitch, 840 F.2d at 990-91.  We                                  ________________          have  scanned the new material  and see nothing  to indicate that          its  exclusion  worked any  injustice.   There  was not  abuse of          discretion.               The exclusion of the  "anticipated" testimony of plaintiffs'          expert witness also  obviously was  not an  abuse of  discretion.          The original  ruling stemmed  from plaintiffs' failure  to comply          with the  Initial Scheduling Conference  Order and no  reason was          given to support changing this decision.               Given these  rulings, the only factual  materials before the          court were  those  submitted  to  the magistrate  judge  and  not          controverted by  plaintiffs.    These provided  no  basis  for  a          reversal of summary judgment.               We refuse  to interfere  with the district  court's decision          not  to impose sanctions  for temerity  at the  trial level.   We          cannot recall any instance  where we have found a  similar ruling                                         -9-          to be  an abuse of discretion.   But, whatever may  have been the          merits at the outset of this litigation, there could have been no          reasonable  expectation of success in this  appeal.  We therefore          award  defendant double  costs and  $1,000 toward  its attorney's          fees, to be chargeable to appellants and their counsel jointly.               We affirm  the judgments underlying both appeals.  Costs and          fees as indicated.                                         -10-
