RodrÍguez v. SeÑor Frog's De La Isla Inc.

• Decision Date: 12 April 2011
• Docket Number: No. 09–2548.,09–2548.
• Citation: 85 Fed. R. Evid. Serv. 114,642 F.3d 28
• Parties: Paloma RODRÍGUEZ, Plaintiff, Appellee,v.SEÑOR FROG'S DE LA ISLA, INC., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

642 F.3d 28

85 Fed. R. Evid. Serv. 114

Paloma RODRÍGUEZ, Plaintiff, Appellee,

v.SEÑOR FROG'S DE LA ISLA, INC., Defendant, Appellant.

No. 09–2548.

United States Court of Appeals, First Circuit.

Heard Nov. 4, 2010.Decided April 12, 2011.

Harry Anduze Montaño, with whom José Morales Boscio and Harry Anduze Montaño Law Office were on brief, for appellant.John Fitzpatrick Vannucci, with whom the Law Office of John Fitzpatrick Vannucci was on brief, for appellee.Before TORRUELLA, LIPEZ, and THOMPSON, Circuit Judges.THOMPSON, Circuit Judge.

This is a diversity-based personal-injury case. A jury returned a $450,000 verdict for Paloma Rodríguez against Señor Frog's de la Isla, Inc. (“Señor Frog,” for short) in Puerto Rico's federal district court. Señor Frog now appeals, challenging nearly every aspect of the district judge's performance. Unable to find any reversible error in the judge's actions, we affirm.

How It All Began¹

San Juan, Puerto Rico, early in the pre-dawn morning of December 5, 2004. Cruising in her Mazda 323 on the Muñoz Rivera Expressway, 21–year–old Rodríguez hit a pothole—a collision that cost her two tires and killed the engine. But the worst was yet to come.

Turning her hazards on, Rodríguez somehow got her car to the side of the road, completely out of the way of oncoming traffic. A police officer patrolling that stretch of highway spotted her and pulled over. He left the cruiser's flashing lights on. A tow-truck driver also showed up, parked his truck in front of Rodríguez's car, activated the truck's flashing lights, pointed a spotlight on the work area, and put out cones to caution drivers passing by. As the truck driver lowered the truck's platform, Rodríguez got back into the Mazda either to grab some personal items or to do something to help out with the towing process.

That is when Carlos Estrada closed in, speeding in a Mitsubishi Mirage registered to Señor Frog. His headlights were off. He had a blood-alcohol level nearly double the legal limit in Puerto Rico. And he smashed that Mitsubishi right into the rear of Rodríguez's Mazda. Rodríguez was hurt, and apparently hurt badly. “She was thrown inside the vehicle,” the officer later said. Covered in blood, she had no vital signs—“she appeared to be dead.” But she survived and sued Señor Frog in district court under diversity jurisdiction, see 28 U.S.C. § 1332, alleging negligence and negligent entrustment. She sued other defendants too (including Estrada), but they were later dismissed for reasons that are not important here, so we skip them.

The Twists And Turns Of Trial

We fast-forward to the trial, where hard-charging counsel pulled out all the stops. For starters, Rodríguez's lawyer moved in limine to prevent Señor Frog from showing or arguing that Estrada had owned the Mitsubishi or that Rodríguez had drunk a beer or two hours before the crash. The judge granted the motion.

Also, Rodríguez's counsel told the jurors during his opening statement that the evidence would compel them to return a $450,000 verdict in his client's favor. Señor Frog's lawyer asked for a mistrial but instead got a cautionary instruction telling jurors that they (not the lawyers) would decide the damage amount due Rodríguez (if any).

The attorneys later sparred over whether the parties were of diverse citizenship, and the judge ruled that they were, following an evidentiary hearing convened after Rodríguez had rested her case. They also battled over the jury instructions. And the judge seemingly sided with Rodríguez when she apparently refused to instruct the jurors on contributory or comparative negligence. We hedge with “seemingly” and “apparently” because Señor Frog failed to give us a transcript of the judge's final charge—a misstep that affects our analysis in several respects, as we discuss later in more detail.

The fighting spilled over into closing arguments too. Rodríguez's counsel said that his client sought damages for lost wages, which he conceded were not much, given that she was a college student/waitress when injured. But she also sought compensation for pain and suffering, which he put at “six figures.” Señor Frog's lawyer objected, and the judge sustained the objection. But she declined to tell the jury right then and there to disregard the value comment. “I will instruct the jury at the end,” she said, though we do not know if she did because, again, the record on appeal contains no transcript of the final charge. Rodríguez's attorney then mentioned a process that the jury could use to fix damages: her pain was worth “$9.00 a day,” he said, and she should live “55 more years,” so she should get over $178,000. The judge sustained an objection to this statement, adding that the “jury will be able to evaluate what compensation, if any,” Rodríguez is due. Sparks flew too when Rodríguez's lawyer said that his client had found herself under “attack” at trial (objection sustained) and that Estrada had been deported to Mexico as part of a plea agreement in a criminal case arising from the crash (objection overruled).

Finding Señor Frog liable, the jury awarded Rodríguez $450,000. The verdict does not distinguish between the types of damages. But the parties (who agree on little else) concur that the bulk of this represented pain and suffering.

In any event, Señor Frog timely moved for a new trial or remittitur. The new-trial portion of its motion blasted Rodríguez's lawyer for his comments during opening or closing statements that suggested a specific damage number, accused the defense of attacking his client, and noted that authorities had shipped Estrada back to Mexico pursuant to a plea agreement. The remittitur section called the jury's award grossly excessive. Ultimately, the judge denied the motion in an unexplained order.

Having set the stage, we turn to the legal issues on appeal, noting further facts as needed.

The Diverse–Citizenship Issue

The diversity-jurisdiction statute empowers federal courts to hear and decide suits between citizens of different states, provided the amount in controversy is more than $75,000. See 28 U.S.C. § 1332(a). Puerto Rico is a state for diversity-jurisdiction purposes. See id. § 1332(e). And Señor Frog is a citizen of Puerto Rico, see id. § 1332(c)(1), so Rodríguez's suit is untenable if she was a Puerto Rico citizen when she filed her December 1, 2005 complaint, see, e.g., Hall v. Curran, 599 F.3d 70, 72 (1st Cir.2010) (per curiam). Señor Frog argues that she was, though it did not press this argument until after Rodríguez had rested her case. Cf. generally Valentin v. Hospital Bella Vista, 254 F.3d 358, 362 (1st Cir.2001) (calling a pre-answer motion to dismiss under Fed.R.Civ.P. 12(b)(1) the “proper vehicle for challenging a court's subject-matter jurisdiction”). But after an evidentiary hearing, the judge deemed Rodríguez a citizen of California when she sued, and this conclusion survives clear-error review. See, e.g., Padilla–Mangual v. Pavía Hosp., 516 F.3d 29, 32 (1st Cir.2008) (noting that a district judge's determination in this area is “a mixed question of law and fact,” which we review under the “clearly erroneous” rubric) (internal quotation marks omitted); Cantellops v. Alvaro–Chapel, 234 F.3d 741, 742 (1st Cir.2000) (similar).

Citizenship for diversity purposes is domicile, and domicile is the place where one is present and intends to stay. See, e.g., Padilla–Mangual, 516 F.3d at 31 (explaining that “[a] person's domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning”) (quoting Rodríguez–Díaz v. Sierra–Martínez, 853 F.2d 1027, 1029 (1st Cir.1988) (internal quotation marks omitted)); García Pérez v. Santaella, 364 F.3d 348, 350 (1st Cir.2004) (similar); see also Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979) (adding that we require “no minimum period of residency”). As the party invoking diversity jurisdiction, Rodríguez had to prove domicile by a preponderance of the evidence, see, e.g., Padilla–Mangual, 516 F.3d at 31; García Pérez, 364 F.3d at 350—and she did just that, presenting enough evidence to show that she was a domiciliary (and thus a citizen) of California.

Rodríguez was the only witness at the hearing on the diversity issue—Señor Frog called no one. Rodríguez testified that she had moved from Puerto Rico to California in September 2005, roughly three months before she filed this suit. She was pregnant, and she and her boyfriend Adrian Peralta wanted to start their lives together in the Golden State. Since they had very little money, the couple lived in a San Francisco Bay area home owned by Peralta's grandmother. And by the time she sued Señor Frog, she had fully relocated from Puerto Rico to California: she was physically present in California (with her clothes, books, furniture, household items, etc.), had opened up a California bank account (she had no money in any Puerto Rico banks), had gotten a California driver's license and job, and had hired a California lawyer to fight on her behalf. And though she had not registered to vote in California (actually, she was not registered to vote anywhere) and did not attend church there, she had settled on living in the Golden State permanently. Cf. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992) (holding that factors that can help an inquiring court determine a party's intent include where the party exercises civil and political rights, pays taxes, has real and personal property, has a driver's or other license, has bank accounts, has a job or owns a business, attends church, and has club memberships—for simplicity we call these the “ Bank One factors”).

Post-complaint events cast no doubt on the earnestness of Rodríguez's intent either. See generally García Pérez, 364 F.3d at 351 (holding that, even though they “are not part of the primary calculus,” post-suit happenings “may...