Dopp v. Pritzker

• Decision Date: 26 October 1995
• Docket Number: No. 95-1469,95-1469
• Parties: NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Paul S. DOPP, Plaintiff, Appellant, v. JAY A. PRITZKER, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 455

68 F.3d 455

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

Paul S. DOPP, Plaintiff, Appellant, v. JAY A. PRITZKER, Defendant, Appellee.

No. 95-1469.

United States Court of Appeals, First Circuit.

Oct. 26, 1995.

Appeal from the United States District Court for the District of Puerto Rico; Hon. Jaime Pieras, Jr., Senior U.S. District Judge.

Roger R. Crane, Jr., with whom Todd B. Marcus and Bachner, Tally, Polevoy & Misher LLP were on brief, for appellant.

Gael Mahony, with whom Frances s. Cohen, Joshua M. Davis, Hill & Barlow, Salvador Antonetti-Zequeira, and Fiddler, Gonzalez & Rodriguez were on brief, for appellee.

D. Puerto Rico

AFFIRMED.

Before SELYA and BOUDIN, Circuit Judges, and Saris, ^* District Judge.

SELYA, Circuit Judge.

This case comes to us not as a stranger. Following a jury verdict finding the defendant, Jay A. Pritzker, liable to his erstwhile partner, plaintiff Paul S. Dopp, in the sum of $2,000,000, the district court disposed of several post-trial motions. See Dopp v. HTP Corp., 755 F.Supp. 491 (D.P.R.1991) (Dopp I ). On appeal, we upheld the liability verdict but vacated both the jury's damage award and the trial court's rulings in connection with equitable relief. See Dopp v. HTP Corp., 947 F.2d 506 (1st Cir.1991) (Dopp II ). The district court then conducted a second trial to determine Dopp's entitlement to various forms of redress. The jury returned a series of special findings and the district court entered a revised judgment. See Dopp v. HTP Corp., 831 F.Supp. 939 (D.P.R.1993) (Dopp III ).

Both sides expressed dismay with the revised judgment. After hearing a gaggle of appeals, we affirmed the district court's denial of a resultory remedy; upheld the jury's award of full damages (originally, $17,000,000) on condition that the plaintiff remit the excess over $14,171,962; ordered a limited new trial absent a remittitur; and set aside the sanctions that the district court had imposed pursuant to P.R. Laws Ann. tit. 32, app. III, R.44.1(d) & 44.3(b) (1984 & Supp.1989). See Dopp v. Pritzker, 38 F.3d 1239 (1st Cir.1994) (Dopp IV ). These rulings necessitated a remand.

Our warning that this seemingly endless litigation showed signs of having "taken on a life of its own," id. at 1255, proved prophetic. When the parties returned to the district court, the wrangling continued. Judge Pieras issued a battery of orders in an effort to close the case. Dopp now appeals. He strikes six separate chords. We write somewhat sparingly, confident that the reader who hungers for more detail will find no shortage of it in earlier opinions.

First: On remand, Dopp beseeched the district court to add prejudgment interest to the damage award. The court refused to do so. Dopp assigns error. We see none.

This is "a diversity case in which the substantive law of Puerto Rico supplies the basis of decision." Dopp IV, 38 F.3d at 1252. Thus, a federal court must give effect to Rule 44.3(b) of the Puerto Rico Rules of Civil Procedure. Under that rule, if a plaintiff recovers money damages and the court finds the defendant to have been guilty of obstinacy, the court must then add prejudgment interest to the verdict. See id.; see also De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 126 (1st Cir.1991); Fernandez v. San Juan Cement Co., 118 P.R. Dec. 713 (1987).

Here, however, there is no basis for a finding of obstinacy. See Dopp IV, 38 F.3d at 1253-55. Accordingly, when Dopp, in the aftermath of our latest opinion, asked the lower court to add prejudgment interest, the court demurred. It ruled that, absent obstinacy, Puerto Rico law furnished no other vehicle by which a court--as opposed to a jury or other factfinder--could impose prejudgment interest in a case of this genre. ¹ We agree: where prejudgment interest is available under Puerto Rico law, the Civil Code expressly so provides. See, e.g., P.R. Laws Ann. tit. 31, Secs. 3025, 3514; P.R.R. Civ. P. 44.3(b). Here, Dopp points to no provision in the Civil Code authorizing the add-on that he seeks. The absence of any such provision is, as the district court recognized, fatal to Dopp's claim.

Second: In a related vein, Dopp contends that the district court should have acted ex cathedra, as it were, and increased the dollar amount of the verdict to reflect delay in payment. This contention is triply flawed.

In the first place, Dopp rests his argument primarily on a statute that he did not mention below. ² Yet, "[i]f any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal." Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992). The circumstances here are not out of the ordinary. To seal the bargain, Dopp offered no argumentation based on this statute in his opening appellate brief. It is hornbook law that an argument omitted from an appellant's opening brief is deemed waived, notwithstanding its belated emergence in the reply brief. See, e.g., Sandstrom v. Chemlawn Corp., 904 F.2d 83, 87 (1st Cir.1990).

In the second place, this argument is barred by the so-called mandate rule. In attempting to sustain the $17,000,000 damage award, Dopp asserted a variety of theories that he claimed justified the higher award. See Dopp IV, 38 F.3d at 1248-51. We rejected his asseverations. Under the mandate rule which provides in substance that "[a] decision of an appellate tribunal on a particular issue, unless vacated or set aside, governs the issue during all subsequent stages of litigation in the nisi prius court, and thereafter on any further appeal," United States v. Rivera-Martinez, 931 F.2d 148, 150 (1st Cir.1991), cert. denied, 502 U.S. 862 (1992) Dopp is precluded from relitigating the point. The bar erected by the mandate rule remains firm despite the fact that a party, the second time around, drapes his contention in slightly different garb. See United States v. Bell, 988 F.2d 247, 250-51 (1st Cir.1993); see also United States v. Connell, 6 F.3d 27, 30 (1st Cir.1993) (explaining that interests of consistency and judicial economy dictate that litigants not be allowed "[s]erial bites at the appellate apple").

In the third place, the Puerto Rico Supreme Court has never applied section 7 in the manner that Dopp suggests, and none of the Puerto Rico cases that he cites indicate that the commonwealth's courts would be willing to take such a lengthy stride in a contract case based on a commercial transaction gone sour. ³ Having in mind that Dopp chose the federal forum, the lack of precedent sounds a death knell for his claim. See Martel v. Stafford, 992 F.2d 1244, 1247 (1st Cir.1993) (explaining that a plaintiff who opts for a "federal forum in preference to an available state forum may not expect the federal court to steer state law into unprecedented configurations"); Porter v. Nutter, 913 F.2d 37, 41 (1st Cir.1990) (similar); Kassel v. Gannett Co., 875 F.2d 935, 949-50 (1st Cir.1989) (similar).

Third: Dopp insists that the district court should have permitted him to decide anew whether he would accept the remittitur after it had denied his motions for prejudgment interest and enhancement of the verdict. We think not. On remand, Dopp faced a simple choice: he could take his chances on another trial or he could accept the remittitur and have judgment entered in the reduced amount. The district court supportably found that Dopp elected the latter course. This finding is reviewable only for abuse of discretion. See De Leon Lopez, 931 F.2d at 120 n. 3. Given Dopp's serial filings in the district court, we discern no hint of abuse either in the finding that he elected the remittitur or in the timing of his election.

Fourth: Money judgments in federal civil actions ordinarily carry postjudgment interest until paid, see 28 U.S.C. Sec. 1961(a), ⁴ and the parties--who agree on little else--agree that this case comes within the statute's sweep. Not surprisingly, there is a rub: Dopp seeks postjudgment interest on the first $2,000,000 in damages not from December 13, 1993 (the date on which the district court entered judgment on the more recent jury verdict) but from March 23, 1990 (the date on which the district court entered judgment on the initial jury verdict). He has no such entitlement.

The relevant facts are as follows. The first trial resulted in a jury verdict of $2,000,000, and the district court entered judgment in that amount. We vacated the judgment in all "its relief-related aspects." Dopp II, 947 F.2d at 520. The parties then retried the case on damages and the jury awarded Dopp $17,000,000 (later reduced to $14,171,962). Dopp theorizes that postjudgment interest should accrue on the first $2,000,000 in damages from the date of the vacated judgment rather than from the date of the larger judgment that was entered following the second jury verdict. For his part, Pritzker maintains that postjudgment interest should run only from the latter date.

The premier authority on this point is Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990). In Kaiser, following a jury verdict for the plaintiff, the district court granted the defendant's motion for a new trial limited to the issue of damages on the ground that the evidence did not support the award. The second trial produced a larger verdict that proved impervious to appellate review. Interpreting 28 U.S.C. Sec. 1961(a), see supra note 4, the Supreme Court concluded that postjudgment interest on the entire award should be calculated from the entry of the second judgment. The Court reasoned that, when a damage award is "not supported by the evidence, the damages have not been ascertained in any meaningful way." Id. at 836. In such circumstances, "[i]t would be counterintuitive, to say the least, to believe that ...