USCA1 Opinion

February 2, 1995

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 94-1757
CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND
SUPREME ELECTRONICS DISTRIBUTORS, INC.,
Plaintiffs, Appellants,
v.
THE FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellee.
____________________
No. 94-1788
CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND
SUPREME ELECTRONICS DISTRIBUTORS, INC.
Plaintiffs, Appellees,
v.
THE FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellant.
____________________
ERRATA SHEET

The per curiam of this court, issued on January 26, 1995, is

amended as follows:
Coversheet, second docket number
place of No. 94-1778.

should read No. 94-1788 in

January 26, 1995

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1757
CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND
SUPREME ELECTRONICS DISTRIBUTORS, INC.,
Plaintiffs, Appellants,
v.
THE FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellee.
____________________
No. 94-1788
CARIBBEAN WHOLESALES AND SERVICE CORPORATION AND
SUPREME ELECTRONICS DISTRIBUTORS, INC.

Plaintiffs, Appellees,
v.
THE FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
__________________________
____________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

Hector F. Martinez-Jimenez for Caribbean Wholesales and

___________________________
Services Corporation and Supreme Electronics Distributors, Inc.
Manuel Moreda-Toledo for The First National Bank of Boston,
____________________
N.A.
____________________
____________________

Per Curiam.
___________

This

concerning commercial
of

procedural

was

once

a potentially

and banking events and

default, it

now

presents

complex

practice.

only easily

case

Because

resolved

issues concerning the district court's exercise of discretion.

The plaintiffs, Caribbean Wholesales and Service Corporation

and Supreme Electronics Distributors (Caribbean), a wholesaler of

electronic appliances, alleged that Novedades Guerra (Novedades),

a local retailer, purchased appliances from Caribbean with checks

that were returned by
Boston (FNBB), for lack

the defendant, the First National

of sufficient funds.

from Novedades, Caribbean filed this

the

sum

of the

damages totalling
sounded

in

returned checks,
$3,000,000.

contract,

Unable

Bank of

to collect

action to collect from FNBB

plus

lost profits

The allegations

negligence, breach

of

and other

of the complaint

fiduciary duties,

unsound banking practices, tortious interference with contractual

opportunities, and, principally, fraud.
that FNBB

induced

Novedades

upon

Novedades'

checks,

that

failed

monitor

Novedades,

to

Caribbean to
the

The essential theme was

sell

appliances on

representation
FNBB

that

reneged
and

on

caused

FNBB

credit
would

to

honor

its representation,
checks

payable

to

Caribbean to be dishonored.
The

record reveals some 169

docket entries in a three-year

period -- over one a week -- of motions, requests for extensions,

orders, responses,
to

objections,

replies to responses,

notices, and

reports.

objections, opposition
The following

crucial

events took place fifteen months after filing of the complaint:

-5-

March 15, 1993 -- FNBB moves for summary judgment.

No opposition is
311.5 required,

filed within ten days,

nor is any request

as Local Rule

made for extension

of time.
March

30,

1993

--

At

plaintiffs request an extension

pretrial

conference,

until April 12 to file

an

opposition to

summary judgment;

this

is granted.

But no opposition was filed.

March

31,

1993

--

Plaintiffs'

counsel

moves

to

withdraw.
April 7,

1993 --

Plaintiff and counsel

have composed

their differences, and request another extension until April

27.

This is denied.
April 27, 1993 --

asking

for "a

opposition.
April
factual

ten

Plaintiffs submit yet another motion

working day

extension"

to file

their

This also is denied.

28, 1993

submission

--

With only

before

the bank's

him,

the

uncontested

magistrate

judge

recommends granting the summary judgment motion.

May 13, 1993 -- The

district court approves the report

of the magistrate judge.

an opposition
file

to the

second amended

anticipatory

On the same day,

report, accompanied
complaint

testimony by

and

an expert

excluded.

-6-

plaintiffs file
by a request

to

a motion

tendering

witness who

had been

Following this, the

judgment,

accepted

court generously set

"Plaintiffs'

Objection

aside its May

to

the

Magistrate

Judge's Report and Recommendation," and granted leave to

file an opposition.

13

FNBB to

FNBB promptly complied, making the following

salient points:
1.

The late

request to

amend, offered four

months after

the December 22, 1992, Initial Scheduling Conference Order (which

established December 31,

1992, as the cut-off date

for amending

pleadings, and which stated, "These dates shall not be changed.")

should not be

allowed.

The bank

Purina, Co., 959 F.2d 1149,

____________

cited Riofrio Anda

____________

1154-55 (1st Cir.

v. Ralston
_______

1992) (denial of

motion to amend two months after deadline.)

2.

The

plaintiffs'
Plaintiffs

motion
expert

had

not

to

allow

witness

the

Myers

complied

with

anticipated

testimony

should

be

not

the

Initial

of

allowed.

Scheduling

Conference Order (concerning notice of the identity of a proposed

witness,

short

justification

of a

curriculum vitae).
this order will
testify at

statement

late addition,

the
and a

subject
copy of

The order had stated:

result in

trial."

of

testimony,

the expert's

"Non-compliance with

such witnesses not

Moreover,

of

the magistrate

being allowed

to

judge's order

of

March 16, rejecting the witness, had been appealed by plaintiffs,

and previously affirmed by the district court on April 13.
3.

The

magistrate

judge's

denial of

plaintiffs'

third

request for an extension of time to file objections to the report

should be upheld.
-7-

4.

On

judgment

the

was not

merits

of

warranted,

plaintiffs'

claim

plaintiffs failed

argument before the magistrate judge and may not

that

summary

to present

any

use the de novo

_______

review proceedings afforded by Fed. R. Civ. P. 72(b) to offer new

material.

FNBB cited Paterson-Leitch v. Massachusetts Municipal

_______________
________________________

Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir.

___________________
said:

"In

a nutshell, the argument .

inexplicably
instance.

was not, presented

1988), where we

. . could have

to the magistrate

been, but

in the first

The appellant is not entitled to yet another nibble at

this particular apple."

See also Borden v. Secretary of Health

________ ______
____________________

and Human Servs., 836 F.2d 4, 6 (1st Cir. 1987).

________________
The district court, after
Opposition,
Amended

first

Complaint,

denied
then

considering the Objection and the

plaintiffs
refused

to

leave to
admit

file
the

Second

anticipated

testimony

of

plaintiffs' expert

rulings,

the

court

reconsideration
judge's

and

Report

then

denied

reaffirmed its

and

uncontroverted facts

witness.

Having made

plaintiffs'
adoption of

Recommendation

on

motion

for

the magistrate

the

that were before him.

these

basis

of

the

The court thereupon

entered summary judgment for FNBB.

We

readily

extraordinarily
untimely

The

favorable

objections

absence of
decision

affirm.

to plaintiffs

to the

any meritorious
was

Complaint.

to refuse

district

the request

That this was

in

magistrate
excuse.

court

to

action

entertaining their

judge's

The

took

Report in

court's most
file a

the

crucial

Second Amended

within its discretion

is clear.

We

-8-

doubt that

a case

can

be found

where the

refusal

of such

request, made four months after a deadline for amended pleadings,

and in the absence

of significant extenuating circumstances, has

been reversed for abuse

an

amended pleading

made little

of discretion.

replicated

difference; to

To the

extent that such

its predecessor,

the extent

that

its exclusion

it introduced

new

material,
a

its admission at such a late date would have initiated

significantly

material and
the

altered

litigation.

issues based therein,

magistrate

judge,

would

Moreover,

allowing

which were not

have

violated

presented to

the

longstanding

principle recognized in Paterson- Leitch, 840 F.2d at 990-91.

________________
have
its

scanned the new material

exclusion

worked any

and see nothing

injustice.

There

new

We

to indicate that
was not

abuse of

discretion.
The exclusion of the
expert witness also
The original
with the

"anticipated" testimony of plaintiffs'

obviously was

ruling stemmed

not an

abuse of

discretion.

from plaintiffs' failure

Initial Scheduling Conference

Order and no

to comply

reason was

given to support changing this decision.

Given these
court were

rulings, the only factual

those

controverted by

submitted

to

plaintiffs.

materials before the

the magistrate
These provided

judge
no

basis

and
for

not

reversal of summary judgment.

We refuse
not

to interfere

to impose sanctions

cannot recall any instance

with the district

for temerity

at the

court's decision
trial level.

where we have found a

-9-

We

similar ruling

to be

an abuse of discretion.

But, whatever may

have been the

merits at the outset of this litigation, there could have been no

reasonable
award

expectation of success in this

defendant double

costs and

appeal.

$1,000 toward

We therefore

its attorney's

fees, to be chargeable to appellants and their counsel jointly.

We affirm

the judgments underlying both appeals.

fees as indicated.

Costs and

-10-