Ramsdell v. Bowles, 95-1148

Citation64 F.3d 5
Decision Date30 August 1995
Docket NumberNo. 95-1148,95-1148
PartiesYvonne RAMSDELL, Plaintiff-Appellant, v. Erskine BOWLES, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Ralph A. Dyer, with whom Law Offices of Ralph A. Dyer, P.A., was on brief, for appellant.

Stephen G. Morrell, with whom Judy A.S. Metcalf and Eaton, Peabody, Bradford & Veague, P.A., were on brief, for appellees.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and SCHWARZER, * Senior District Judge.

SCHWARZER, District Judge.

Yvonne Ramsdell brought suit against Machias Savings Bank and its directors (collectively the "Bank") alleging claims arising out of a series of loan transactions in which the Bank provided financing to Ramsdell Construction Company ("Ramsdell"), owned by Mrs. Ramsdell's husband and son. Because Mrs. Ramsdell alleged a violation of the Equal Credit Opportunity Act (the "ECOA"), 15 U.S.C. Secs. 1691-1691f (1988), the district court had jurisdiction over that claim under 28 U.S.C. Sec. 1331 and over the supplemental state law claims under 28 U.S.C. Sec. 1367. Mrs. Ramsdell now appeals the district court's grant of the Bank's motion for summary judgment. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

Ramsdell Construction Company was engaged in the construction business in Machias, Maine. In 1989 and 1991, it obtained loans from the Bank to finance its operations. In early 1992, having defaulted on the loans, Ramsdell decided to obtain additional financing to enable it to complete a construction project for which it had a contract with the Town of Lubec, Maine. The Bank agreed to

make the loan on the condition that the loan would be guaranteed by the Small Business Administration (the "SBA") and that Mrs. Ramsdell would also sign a personal guarantee. This loan, sometimes referred to as the SBA loan, closed in June 1992. Meanwhile Ramsdell continued work on the Lubec project with interim financing from the Bank. At the closing, $75,000 of the loan proceeds was used to set off advances the Bank had made in the interim to finance the work. Notwithstanding this infusion of funds, Ramsdell defaulted on the Lubec contract in the fall of 1992 and went into bankruptcy. Foreclosure proceedings were brought in the state court against Mrs. Ramsdell and others who were borrowers or guarantors of the loans. Apparently, discovery taken in the state court action was later used by the parties in the instant action.

PROCEDURAL BACKGROUND

The complaint, filed on April 14, 1994, alleged that the Bank had violated the ECOA (Count I), breached the loan agreement with Ramsdell (Count II), interfered with plaintiff's and Ramsdell's advantageous relationships (Counts IV, VI and VII), violated its duty of good faith and fair dealing (Count V), and acted negligently (Count VIII). It also alleged that individual defendants had aided and abetted the breach (Count III) and had interfered with advantageous relationships (Counts IV and VII). Additional counts have been abandoned on appeal. Originally, the complaint also named the SBA as a defendant; however, the claims against the SBA were later dismissed.

The Bank filed a motion for summary judgment on November 2, 1994. Mrs. Ramsdell moved for an extension of time to file her opposition until November 21, 1994 (the date on which it would have been due, in any event, under Local Rule 19(c) of the District of Maine). She filed her opposition on November 22, 1994, one day late. On December 2, 1994, the Bank moved to strike the opposition as untimely and further asked that certain marked material be struck as immaterial or as barred by an earlier confidentiality order issued by the court. On December 6, 1994, the magistrate judge granted the motion to strike, before objections had been filed; on December 8, 1994, he filed his recommended decision granting summary judgment. After receiving the objections, the magistrate judge treated them as a motion for reconsideration, which he denied by order of December 12, 1994. Mrs. Ramsdell then filed a brief seeking de novo review of the magistrate judge's recommended decision; on January 3, 1995, the district court issued its order adopting the recommended decision and granting judgment for the Bank.

THE MOTION TO STRIKE

In his initial order granting the motion to strike, the magistrate judge, relying on the court's inherent power to enforce its rules, concluded that although the court is "usually generous to those who miss by slight amounts various limitations on pleadings ... Plaintiff's response to the Motion for Summary Judgment is properly stricken." (R. 102.) The magistrate judge found that a chart Mrs. Ramsdell offered in support of the opposition was "not authenticated and ha[d] no evidentiary value" and that the opposition was "replete with 'immaterial, irrelevant and prejudicial statements.' " (R. 100-01.) On reconsideration, the magistrate judge applied the seven factors we suggested district courts examine when exercising their discretion in ruling on a motion for reconsideration of a dismissal order entered due to a plaintiff's failure to file a timely opposition to a motion, viz:

(1) the nature of the case, (2) the degree of tardiness, (3) the reasons underlying the tardiness, (4) the character of the omission, (5) the existence vel non of cognizable prejudice to the nonmovant in consequence of the omission, (6) the effect of granting (or denying) the motion on the administration of justice, and (7) whether the belated filing would, in any event, be more than an empty exercise.

United States v. Roberts, 978 F.2d 17, 21-22 (1st Cir.1992). Acknowledging the district court's "great leeway in the application and enforcement of its local rules," we held in Roberts that a refusal to grant relief on reconsideration is reviewed for abuse of discretion. Id. at 20. "In making discretionary We are satisfied that the magistrate judge gave appropriate consideration to each of the relevant factors. First, we note that here, unlike in Roberts, there was no question about Local Rule 19(c)'s interpretation or its application to the facts of the case. Compare Roberts, 978 F.2d at 19-20. Although Mrs. Ramsdell argued in her reply brief that her opposition was in fact filed in a timely manner under Local Rule 19(c) and Fed.R.Civ.P. 6(a), she waived that argument both by failing to raise it in the district court and by failing to raise it in her opening brief on appeal. See, e.g., Aetna Casualty Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1571 (1st Cir.1994) (appellant failed to preserve issue for appeal by failing to raise it at trial and by failing to raise it in opening brief on appeal); Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983) (arguments not presented in initial brief on appeal are waived). 1

judgments, a district court abuses its discretion when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales." Id. at 21.

Moreover, we note that Mrs. Ramsdell was represented by Maine counsel who was on notice that Local Rule 19 was being strictly enforced and that neglect was not an acceptable excuse. See Cardente v. Fleet Bank of Maine, Inc., 146 F.R.D. 13, 20-22 (D.Me.1993); Winters, 812 F.Supp. at 4; Greene v. Union Mut. Life Ins. Co. of Am., 764 F.2d 19, 23 (1st Cir.1985) (district court reasonably found breakdown of counsel's office procedures not an adequate excuse for late filing).

Finally, Mrs. Ramsdell failed to show that she suffered prejudice as a result of the magistrate judge striking her opposition to the motion for summary judgment. The magistrate judge acted pursuant to Local Rule 19(c), which states in relevant part:

Unless within ten (10) days after the filing of a motion the opposing party files written objection thereto, incorporating a memorandum of law, the opposing party shall be deemed to have waived objection.

Following the interpretation of Local Rule 19(c) previously explicated by the District of Maine in F.D.I.C. v. Bandon Assocs., 780 F.Supp. 60, 62 (D.Me.1991), the magistrate judge ruled that the penalty embodied in Rule 19(c) amounts to only a limited waiver: "[A] failure to respond to a Motion for Summary Judgment does not amount to a waiver of Plaintiff's objection.... [A] party who fails to object in a timely fashion is deemed to have consented to the moving party's statement of facts to the extent that statement is supported by appropriate record citations." (R. 103, citation and internal quotation marks omitted.) And, as the judge further observed, summary judgment is appropriate only if the record before the court establishes that the moving party is entitled to judgment as a matter of law. See Winters, 812 F.Supp. at 2. Therefore, the striking of Mrs. Ramsdell's opposition did not bar her from obtaining a favorable ruling based on issues of law presented by the motion if she was entitled to one. Moreover, had the judge ignored disputed material issues of fact as a result of striking the opposition, she could have called them to our attention in her brief on appeal; but she failed to do so.

We conclude that the magistrate judge did not abuse his discretion in striking the opposition.

THE SUMMARY JUDGMENT

We turn then to review of the judgment below on the merits, pursuant to the applicable de novo standard of review. E.H. Ashley & Co. v. Wells Fargo Alarm Services, 907 F.2d 1274, 1277 (1st Cir.1990).

The ECOA Violations

Count I of the complaint alleges that the Bank violated the ECOA by demanding that Mrs. Ramsdell guarantee each of the three loan transactions between the Bank and the Ramsdells. The ECOA makes it "unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit...

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