Mangual v. General Battery Corp., 82-1857

• Decision Date: 13 July 1983
• Docket Number: No. 82-1857,82-1857
• Citation: Mangual v. General Battery Corp., 710 F.2d 15 (1st Cir. 1983)
• Parties: Roberto Ayuso MANGUAL, et al., Plaintiffs, Appellants, v. GENERAL BATTERY CORPORATION, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 15

710 F.2d 15

Roberto Ayuso MANGUAL, et al., Plaintiffs, Appellants, v.GENERAL BATTERY CORPORATION, et al., Defendants, Appellees.

No. 82-1857.

United States Court of Appeals First Circuit.

Submitted April 7, 1983.

Decided June 22, 1983.

Rehearing Denied July 13, 1983.

Pedro J. Varela, Hato Rey, P.R., on brief for plaintiffs, appellants.

Paul J. Levine, Ana E. Landa, and Morgan, Lewis & Bockius, Miami, Fla., on brief, for defendants, appellees.

Before BOWNES and BREYER, Circuit Judges, and TAURO, ^*District Judge.

BOWNES, Circuit Judge.

This is an appeal from the district court's dismissal of a complaint for lack of in personam jurisdiction and failure to respond to a motion to dismiss.According to the complaint brought by Roberto Ayuso Mangual and his wife and child, Ayuso suffered a total disability as a result of his being exposed to lead dust while working at the Carolina, Puerto Rico, plant of General Battery International Corporation(GBIC).The complaint alleges negligence against General Battery Corporation, GBIC's parent corporation; Northwest Industries, Inc., the sole owner of GBC; and several individual officers of both GBIC and GBC.Traveler's Insurance Company, insurer of the defendants, was sued under the direct action statute of Puerto Rico.GBIC itself was immune from suit under the Puerto Rico Workmen's Compensation Act.Puerto Rico LawsAnn. tit. 11, Sec. 21.

A short chronology of the proceedings is necessary in order to understand the issues raised on appeal.The original complaint was filed on May 21, 1979.It was amended to include all the defendants referred to above on December 21, 1981.On February 8, 1982, in response to the defendants' motion for a protective order, the district court ordered that the plaintiffs take the depositions of the individual defendants in Reading, Pennsylvania, "at the earliest possible date."The court further ordered that

[p]laintiffs shall file their opposition to the Motion to Dismiss for lack of in personam jurisdiction within 30 days from the date the last one of the above depositions is taken.Plaintiffs shall advise the Court of the date of the depositions as soon as possible.The Motion to Dismiss is meanwhile held in abeyance.

On February 10the defendants filed a motion to dismiss arguing that the court lacked in personam jurisdiction over all of the defendants and that the action was barred by the statute of limitations as against defendants Travelers and one of the individual defendants, J.A. Bitler.

On February 22, 1980, the plaintiffs filed a notice to take the defendants' depositions on March 8 and 9.The plaintiffs cancelled these dates on February 25 and on March 5 filed an amended notice to take the depositions on May 5 and 6 because defendants had requested additional time for preparation.

On March 8, 1982, GBC requested the court's leave to withdraw its motion to dismiss.The court granted the request on March 23, but at the same time dismissed the complaint as to all of the other defendants because no opposition to the motion to dismiss had been filed by the plaintiffs.¹On March 26, 1980, the same day that judgment was entered, the plaintiffs moved the district court to reconsider its order because the depositions had not yet been taken.This motion was denied.The plaintiffs filed a second motion for reconsideration on April 26, 1982.The district court never ruled upon that motion.

Despite the dismissal of the complaint as to Northwest, Inc., Travelers and the individual defendants, discovery went forward.Depositions were taken and the parties submitted memoranda on the question of whether the court had jurisdiction over all of the defendants.On October 7, 1982, the district court, in a decision and order discussing only the court's jurisdiction over GBC, dismissed the complaint against GBC for lack of jurisdiction.On November 2, 1982, plaintiffs filed a notice of appeal.²

I.

The district court dismissed the complaint as to Northwest Industries, Inc., Travelers Insurance Company, and the individual defendants, Peter Noznesky, Robert Restrepo, John Mastromarino and J.A. Bitler, because the plaintiffs failed to file an opposition to the motion to dismiss.Such an order will be reversed only when the district court has abused its discretion.SeeDamiani v. Rhode Island Hospital, 704 F.2d 12(1st Cir.1983) and cases cited therein.We think for the following reasons that it was an abuse of discretion to dismiss.

Under the district court's order of February 9, 1982, the plaintiffs had thirty days from the time in which they deposed the individual defendants to file a response to the motion to dismiss.The order specifically stated that the motion to dismiss would be held in "abeyance" until that time.But when the complaint was dismissed by the district court the depositions, which had been scheduled for May 5 and 6, had still to be taken.We can only conclude that the district court contravened its own order by dismissing the complaints when it did.

We recognize that the depositions had been postponed beyond their original date, notwithstanding the court's order to take them "at the earliest possible date."It would appear, however, that the postponement was made to accommodate the defendants; certainly they did not object to it.It may be that the district court had good reason for the dismissal, but the record is bereft of any basis for finding that the plaintiffs were in default.We can only proceed on the record before us and we can nowhere find that the court modified or withdrew its order.Nor are there any findings that scheduling the depositions for May 5 and 6 were contrary to the court's instructions.We, therefore, must hold that the court acted without sufficient justification and reverse the dismissal.

The defendants argue that even if the district court erred the error was harmless because the court in fact lacked in personam jurisdiction over them.We think that the record here is too sparse for us to reach any such conclusion as to defendants Northwest and Travelers and that the issue should first be considered by the district court after the plaintiffs have had an opportunity to present evidence on the question.As to the individual defendants, however, the record is fairly complete.After the case was dismissed against them, their depositions were taken in connection with the case against GBC.The parties then filed memoranda of law on the issue of jurisdiction over GBC which contained discussions of the court's jurisdiction over the individual defendants.More importantly, because the individual defendants were all employees of GBC, and GBC was responsible for their actions relating to the plaintiff, seeinfra, the district court's review of its jurisdiction over GBC necessarily required it to examine the individual defendants' contacts with the forum.Accordingly, we think it appropriate for us to decide the issue of the court's in personam jurisdiction over the individual defendants at this time.

We find that the district court's dismissal of the case against defendants Restrepo and Mastromarino was harmless error because the court lacked jurisdiction over them, but that the court had jurisdiction over defendants Noznesky and Bitler.In a diversity case, such as the present, the district court's personal jurisdiction over a nonresident defendant is governed by the forum's long-arm statute.Charles Wright & Arthur Miller Federal Practice and ProcedureSec. 1075(1969).Puerto Rico's long-arm statute states in relevant part:

Substitute Service

(a) Where the person to be served is not within Puerto Rico, the General Court of Justice of Puerto Rico shall have personal jurisdiction over said nonresident as if he were a resident of the Commonwealth of Puerto Rico, if the action or claim arises as a result of the following:

(1) Such person or his agent carries out business transactions within Puerto Rico; or

(2) Executes by himself or through his agent, tortious acts within Puerto Rico ....

P.R.Laws Ann. tit. 32, App. II R. 4.7.

This statute provides no basis for the court's exercise of jurisdiction over defendants Restrepo and Mastromarino.Restrepo and Mastromarino were corporate officers of both GBIC and GBC.Each worked and resided in Pennsylvania.As far as the record shows, their only relationship with the forum resulted from the fact that they were officers of a Puerto Rican corporation.This alone is insufficient to establish jurisdiction over the defendants.In Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902(1st Cir.1980), we stated:

The general rule is that jurisdiction over the individual officers of a corporation may not be based merely on jurisdiction over the corporation.There must be an independent basis for asserting jurisdiction over the [nonresident agents].

Id. at 906(citations omitted).

Here, both Restrepo and Mastromarino made several business trips to Puerto Rico.There is nothing in the record, however, to suggest that these trips, or any of their other dealings with GBIC, were causally related to the plaintiff's injury.Without such a causal nexus between the defendants' transactions in Puerto Rico and the claim, the defendants cannot be found to have carried "out business transactions within Puerto Rico" within the meaning of the long-arm statute.Id.;Arthur H. Tomas Co. v. Superior Court of Puerto Rico, 98 P.R.R. 864, 870(P.R.1970).

Nor have the plaintiffs proven sufficient facts to establish jurisdiction over Restrepo and Mastromarino under R. 4.7(a)(2), the section of the long-arm statute concerning torts committed within the Commonwealth.In Escude Cruz we held that corporate officers may be reached under R. 4.7(a)(2) only when the plaintiff makes "some showing of direct personal involvement by the corporate officer in some decision or action which is causally related to plaintiff's injury."619 F.2d at 907.Here, plaintiffs have made...