Cordero-Soto v. Island Finance, Inc., 04-2582.

• Decision Date: 12 August 2005
• Docket Number: No. 04-2582.,04-2582.
• Citation: 418 F.3d 114
• Parties: Juan CORDERO-SOTO, Plaintiff, Appellant, v. ISLAND FINANCE, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

418 F.3d 114

Juan CORDERO-SOTO, Plaintiff, Appellant, v. ISLAND FINANCE, INC., Defendant, Appellee.

No. 04-2582.

United States Court of Appeals, First Circuit.

Heard June 10, 2005.

Decided August 12, 2005.

COPYRIGHT MATERIAL OMITTED

John Ward-Llambias for appellant.

Francisco M. Ramírez-Rivera, with whom Amelia Fortuño-Ruiz and Martinez, Odell & Calabria were on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

Plaintiff-appellant Juan Cordero-Soto appeals the grant of summary judgment dismissing his claims against Defendant-appellee Island Finance, Inc. under the Age Discrimination in Employment Act, 29 U.S.C §§ 621-634 ("ADEA"). We affirm.

I.

Cordero was forty-nine and on sick leave when he was terminated on October 27, 2000 from his position as a Branch Manager of Island Finance, a loan company for which he had worked in differing capacities for more than 25 years. On May 15, 2002, Cordero filed suit in federal court, alleging that Island Finance had terminated his employment because of his age in violation of the ADEA. Cordero also brought claims under 42 U.S.C. § 1983 and Puerto Rico law.

On January 26, 2004, Island Finance moved for summary judgment on Cordero's ADEA claims, as well as dismissal of his claims under § 1983 and Puerto Rico law. In its motion for summary judgment, Island Finance argued that Cordero was ineligible for back pay, front pay, or reinstatement for any ADEA violation as a matter of law because the Social Security Administration had designated him disabled as of September 15, 2000, the date he went on sick leave, and because Cordero continued to receive Social Security Disability Insurance ("SSDI") benefits. Island Finance also argued that Cordero could not recover liquidated damages, which are available only for willful violations of the ADEA. 29 U.S.C. § 626(b); see Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (explaining that statutory provision "which makes the award of liquidated damages mandatory" under the Fair Labor Standards Act "is significantly qualified" in its application to the ADEA "by a proviso that a prevailing plaintiff is entitled to double damages `only in cases of willful violations.'" (quoting 29 U.S.C. § 626(b))).

The district court issued an opinion and order on September 30, 2004 granting Island Finance's motion for summary judgment on Cordero's ADEA claims, granting its motion to dismiss Cordero's § 1983 claims, and declining to exercise supplemental jurisdiction over Cordero's claims under Puerto Rico law. See Cordero Soto v. Island Fin., Inc., 338 F.Supp.2d 299 (D.P.R.2004). The court first explained that, as a result of Cordero's "repeated lack of compliance with the deadlines to oppose both motions, this Court denied plaintiff's final request for an extension of time. Therefore, both motions are unopposed." Id. at 300. However, the court later "ordered the parties to file supplemental briefs on the issue of Island Finance's reasons for terminating Cordero, and Cordero did file an opposition to Island Finance's brief," including seventeen attached exhibits. Id. at 301. "Of those exhibits, seven (7) were submitted in the Spanish language without a certified English translation." Id. Because Cordero "did not ask for leave to file said exhibits in Spanish while he obtained the necessary translations" or "subsequently present any translations," the court excluded the Spanish-language exhibits from consideration. Id.

Turning to the merits of Island Finance's motion for summary judgment, the court concluded that because "Cordero continues to receive benefits for a disability that prevents him from being gainfully employed, and has not submitted evidence that he would be able to go back to work," he was ineligible as a matter of law for back pay, front pay, or reinstatement for any ADEA violation. Id. at 302. The court also concluded that Cordero could not recover liquidated damages for a willful ADEA violation. Id. Cordero filed a timely notice of appeal from the court's grant of summary judgment on his ADEA claim, challenging (1) the court's denial of Cordero's motion for an extension of time and its exclusion of the Spanish-language exhibits, and (2) its decision on the merits.¹

II.

A. Scope of the Summary Judgment Record

Under the local rules of the United States District Court for the District of Puerto Rico, "[u]nless within ten (10) days after the service 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." D.P.R. R. 7(b) (renumbered as Rule 7.1(b), effective April 5, 2004). However, Federal Rule of Civil Procedure 6(b) confers discretion on a court to grant an extension of time after the expiration of a filing deadline for "excusable neglect." "In the absence of a manifest abuse of discretion, . . . we will not interfere with a district court's reasoned refusal to grant incremental enlargements of time." Mendez v. Banco Popular de P.R., 900 F.2d 4, 7 (1st Cir.1990). No such abuse occurred here.

The court granted Cordero's first request for an extension of time until February 25, 2004. On March 4, 2004, Cordero requested an additional extension of time until March 8, 2004.² By March 18, 2004, when Cordero still had not filed an opposition, the court issued an order declaring his motion of March 4, 2004 moot and Island Finance's motion for summary judgment unopposed. On March 30, 2004, Cordero filed a third motion for an extension of time until April 20, 2004, attaching a hospital discharge record and explaining that his counsel had been hospitalized from March 5 through March 10, 2004 with a "pulmonary infection and other conditions," after which counsel was instructed to rest for 20 days.

Island Finance filed an opposition to Cordero's motion the next day, arguing, inter alia, that Cordero's counsel had been well enough to take a deposition on March 18, 2004, and therefore could have filed his third motion for an extension before March 30, 2004. The court denied Cordero's motion on April 2, 2004, stating: "This Court notes that plaintiff has repeatedly failed to comply with this Court's deadlines, and failed to notify this court in a timely manner of any circumstances that could support an extension of time."

While we do not fault counsel for choosing to risk his own health on his client's behalf by taking a deposition, the court could reasonably have expected him to make the small additional effort of contemporaneously filing a motion for an extension of the deadline for responding to the pending motions. Under these circumstances, the court did not abuse its discretion in denying Cordero's third motion for an extension of time to file an opposition. As a consequence, the court properly treated Island Finance's motion as unopposed and its statement of facts admitted. See Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 4 (1st Cir.2003) ("This court has held repeatedly that the district court in Puerto Rico is justified in holding one party's submitted uncontested facts to be admitted when the other party fails to file oppositions in compliance with local rules."); D.P.R. R. 56(e) ("Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.") (proposed rule effective September 29, 2003, adopted as final rule effective April 5, 2004).

Nor did the court abuse its discretion by excluding from consideration Cordero's Spanish-language exhibits. "It is well settled that federal litigation in Puerto Rico [must] be conducted in English." González-De-Blasini v. Family Dep't, 377 F.3d 81, 88 (1st Cir.2004) (internal quotation marks and citation omitted); see Pena-Crespo v. Puerto Rico, 408 F.3d 10, 14 (1st Cir.2005) (not an abuse of discretion for the district court to exclude plaintiff's expert testimony where the plaintiff failed to provide an English translation of expert's report and resume, and made no attempt to remedy the omission before the court); see also 48 U.S.C. § 864; D.P.R. R. 10(b) ("All documents not in the English language which are presented to or filed in this Court, whether as evidence or otherwise, shall be accompanied at the time of presentation or filing by an English translation thereof, unless the Court shall otherwise order.") (approved as final rule effective April 5, 2004).

B. Merits

"Even where the record is circumscribed because summary judgment was unopposed, a district court may grant summary judgment against the nonresponding party only `if appropriate.'" Torres-Rosado, 335 F.3d at 9 (quoting Fed.R.Civ.P. 56(e)). Accordingly, "before granting an unopposed summary judgment motion, [t]he court must inquire whether the moving party has met its burden to demonstrate undisputed facts entitling it to summary judgment as a matter of law." Lopez v. Corporación Azucarera de P.R., 938 F.2d 1510, 1516 (1st Cir.1991) (internal quotation marks omitted, alteration in original).

We review the grant of summary judgment de novo, based on the record as it stood before the district court. Torres-Rosado, 335 F.3d at 9, 5.³ We view the record in the light most favorable to Cordero, the non-moving party. Estades-Negroni v. Assocs. Corp. of N. Am., 377 F.3d 58, 62 (1st Cir.2004). Pursuant to Fed.R.Civ.P. 56(c), summary judgment is warranted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "Once the moving party avers the absence of genuine issues of material fact, the nonmovant must show, through materials of evidentiary quality, that such a dispute exists." Rathbun v. Autozone, Inc., 361 F.3d 62, 66 (...