488 F.3d 1 (1st Cir. 2007), 06-1178, Hoyos v. Telecorp Communications, Inc.

Docket Nº:06-1178.
Citation:488 F.3d 1
Party Name:Omar HOYOS, Plaintiff, Appellant, Cecilia Mej
Case Date:May 18, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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488 F.3d 1 (1st Cir. 2007)

Omar HOYOS, Plaintiff, Appellant,

Cecilia Mejías Jiménez, Plaintiff,

v.

TELECORP COMMUNICATIONS, INC. d/b/a AT & T Wireless PCS, Inc.; Suncom Wireless Puerto Rico Operating Company LLC, Defendants, Appellees.

No. 06-1178.

United States Court of Appeals, First Circuit.

May 18, 2007

Heard March 6, 2007.

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[Copyrighted Material Omitted]

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Aníbal Lugo Miranda, with whom Lugo Miranda Law Offices was on brief, for appellant.

Luis F. Antonetti Zequeira, with whom Goldman Antonetti & Córdova, P.S.C. was on brief, for appellees.

Before LYNCH, Circuit Judge, SELYA, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

Omar Hoyos, a supervisor working for Telecorp Communications, Inc.,1 was fired on October 11, 2003. The company said he was fired after he violated his superior's instructions that he stay away from another employee, Nancy Alomar, who had complained that he had sexually harassed her. The specific event that precipitated the firing was Hoyos's decision to approach Alomar on October 2, 2003 at a company booth she was staffing at an industry convention at the Westin Río Mar Resort. On October 3, Alomar had a written complaint about the incident hand delivered to Jaime Pontón, a human resources manager at Telecorp. Alomar's letter stated that Hoyos had engaged in a pattern of sexual harassment and intimidation, and indicated that Alomar was considering legal action against Telecorp.

Hoyos filed suit on October 6, 2004, in a Commonwealth court, having concluded "weeks after [he] was fired, ... when [he] put together all the pieces and ... saw it clear[ly], that [he] was fired because of discrimination on [his] sex." Hoyos's complaint alleged that his employment had been unlawfully terminated due to his gender in violation of the Puerto Rico Constitution, and that the company had failed to pay him benefits as required by ERISA. He also asserted claims that he was terminated without good cause in violation of Puerto Rico Law 80, P.R. Laws Ann. tit. 29, §§ 185a-185m, that he was discriminated against on the basis of his gender in violation of Puerto Rico Law 100, id. §§ 146-155, that he was retaliated against in violation of Puerto Rico Law 115, id. § 194a(a), and that his termination violated the general torts statute, Article 1802 of the Puerto Rico Civil Code, id. tit. 31, § 5141. The case was removed to federal district court, and after discovery, the court, on defendant's motion, entered summary judgment against Hoyos on all of his claims. We affirm.

I.

On appeal, Hoyos raises a preliminary issue regarding the effect of Puerto Rico Law 2, id. tit. 32, § 3118, on the removed

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federal case, and then argues that entry of summary judgment was error.

A. Puerto Rico Law 2

Hoyos asserts that after he filed his complaint in Puerto Rico court, Telecorp had until November 7, 2004 to file responsive pleadings. Telecorp did not do so, but rather on November 15 filed a motion in Puerto Rico court requesting a thirty-day extension of time in which to answer the plaintiff's complaint. That motion was never acted on. On November 23, Telecorp removed the case to federal court on the bases of diversity jurisdiction and federal question jurisdiction. See 28 U.S.C. §§ 1331, 1332. Thereafter, on December 14, Telecorp asked the federal court for another thirty-day extension to file an answer, which was allowed. Telecorp then filed an answer in federal court on January 12, 2005.

The gist of Hoyos's argument is that when Telecorp did not file responsive pleadings in Puerto Rico court by the November 7, 2004 due date, the clerk of the Puerto Rico court was required, under Law 2, to enter a default judgment against Telecorp, as Hoyos had requested. Hoyos argues that the federal court, on removal, was obliged by Law 2 to enter such a judgment on Hoyos's claims, and thus it was precluded from reaching the summary judgment motion.

Telecorp's brief unhelpfully replies that Hoyos has waived the issue by not having moved within thirty days of removal to remand the case to the Puerto Rico court. See id. § 1447(c) ("A motion to remand [a] case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)."); Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) ("Once a defendant has filed a notice of removal in the federal district court, a plaintiff objecting to removal 'on the basis of any defect in removal procedure' may, within 30 days, file a motion asking the district court to remand the case to state court." (quoting a prior version of 28 U.S.C. § 1447(c))).

Hoyos does not argue that a remand was required. Instead, he asserts that the district court was obliged to enter a default judgment itself.2

Telecorp asserts that Hoyos never brought the Law 2 issue to the attention of the district court. That assertion is not true. The issue was raised, albeit indirectly, in a motion filed eight months after removal and pressed explicitly three months later, on October 19, 2005. The district court never addressed the issue.

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We bypass the waiver issue and assume that the Law 2 issue has been preserved. Both here and in the district court, each side has missed the real issue, which is whether Law 2 concerns procedure or substance.

That is because a federal court sitting in diversity or exercising supplemental jurisdiction over state law claims must apply state substantive law, but a federal court applies federal rules of procedure to its proceedings. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 92, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (Reed, J., concurring in part) ("[N]o one doubts federal power over procedure.").

Law 2 provides:

The clerk of the Court shall serve notice on the defendant, with a copy of the complaint, warning him that he shall file his answer in writing, with proof of having served copy thereof on counsel for complainant, or on the latter if he has appeared in his own right, within ten (10) days after said service of notice, if made in the judicial district where the action is instituted, and within fifteen (15) days in all other cases, and also warning said defendant that, should he fail to do so, judgment shall be entered against him, granting the remedy sought, without further summons or hearing. The judge may extend the term to answer only on motion of the defendant, which shall be served on counsel for complainant, or on the latter if he appears in his own right, setting forth under oath the reasons said defendant may have therefor, if from the face of such motion the judge finds just cause. In no other case shall the court have jurisdiction to grant such extension.

P.R. Laws Ann. tit. 32, § 3120 (emphases added).

It is clear that this is a local procedural rule, which does not and cannot govern...

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