Leyva v. On The Beach, Inc., 171 F.3d 717, 1st Cir. (1999)

171 F.
3d 717
Chelsea LEYVA, etc., et al., Plaintiffs, Appellants,

v.
ON THE BEACH, INC., et al., Defendants, Appellees.
No. 98-1984.
United States Court of Appeals,

First Circuit.
Heard March 3, 1999.
Decided April 1, 1999.
Kevin G. Little, with whom Law Offices of David Efron was on brief, for
appellants.
Edward J. Horowitz, with whom Gerardo A. Quirs Lpez, John Q. Kelly,
and Kelly & Campo LLP were on brief, for appellees.
Before TORRUELLA, Chief Judge, SELYA, Circuit Judge, and
ACOSTA,* Senior District Judge.
SELYA, Circuit Judge.
On September 15, 1995, a tragedy occurred at a three-story beach house in

Santurce, Puerto Rico, owned by Esther Feliciano Roman (Feliciano). Because
a hurricane had been forecasted, a gaggle of relatives, neighbors, friends, and
acquaintances had been assisting in securing the beach house. The property
itself comprised two stories operated by On The Beach, Inc. (OTB) as the
"Numero Uno Guest House," and a third floor that served as a private residence
for Feliciano (who was OTB's president) and her husband, Chris Laube.
Jorge Alberto Leyva, variously described as a good friend of Laube and an

employee or prospective employee of OTB, was one of those who participated
in the pre-hurricane preparations. In the course of this activity, Leyva fell from
a third-floor terrace. Five days later, he died from injuries sustained in the fall.
Invoking diversity jurisdiction, 28 U.S.C. 1332(a), Leyva's family--all of
whom were domiciled in Florida--brought a wrongful death action in the

federal district court against OTB, Feliciano, and Laube.1 The complaint
attributed Leyva's demise to a dangerous condition on the third-floor terrace
(principally, the absence of a railing at one spot) and asserted two main theories
of liability against the several defendants. First, the plaintiffs alleged in
substance that the decedent had been an employee of the defendants when
injured, and that the defendants had breached a duty "to provide [him] a safe
workplace." Alternatively, the plaintiffs alleged in substance that Feliciano
and/or Laube were liable because they failed to maintain their premises in a
reasonably safe condition and allowed (or, indeed, requested) the decedent to
"perform an inherently dangerous task" thereon.
4
OTB and Feliciano (in her capacity as an officer, director, and shareholder of
OTB) moved for partial summary judgment on the ground that, contrary to the
plaintiffs' allegations, the decedent had not been employed by OTB on the date
of the accident. Their motion addressed only the first of the plaintiffs' two
theories. It in no way sought brevis disposition on the second theory, that is, on
the claims asserted against Laube or against Feliciano in her individual
capacity. In a preliminary margin order dated August 7, 1997, the district court
acknowledged as much; the court wrote: "This motion only seeks to dismiss the
cause of action against the corporation and the cause of action against E.
Feliciano in her corporate capacity." The margin notation went on to pledge that
"[t]he court will address the motion accordingly."
The plaintiffs opposed the defendants' motion for partial summary judgment,
and the court eventually took it under advisement. On July 7, 1998, the court
reneged on its earlier pledge; in a comprehensive opinion, it not only granted
partial summary judgment as requested in the motion papers but also entered
judgment against the plaintiffs on all remaining claims.2 See Leyva v. On The
Beach, Inc., Civ. No. 96-2116(JAF), slip op. (July 7, 1998) (unpublished). The
plaintiffs do not challenge the entry of summary judgment in favor of OTB and
Feliciano in her corporate capacity, but, rather, restrict their appeal to the court's
treatment of the individual liability claims.
We need not linger long. To be sure, district courts possess the power to grant
summary judgments on their own initiative. See Celotex Corp. v. Catrett, 477
U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Berkovitz v. Home Box
Office, Inc., 89 F.3d 24, 29 (1st Cir.1996). But unbesought summary judgments
can prove problematic in the absence of proper procedural protections. To
alleviate difficulties of this sort, we have counseled caution in the use of that
technique. See, e.g., Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555,
1561 (1st Cir.1989) (warning, in regard to sua sponte summary judgments, that
"unnecessary haste frequently results in more leisurely repentance"). Moreover,

we have placed two constraints on a district court's authority to grant summary
judgment sua sponte:
7
First,
a district court ordinarily may order summary judgment on its own initiative
only when discovery is sufficiently advanced that the parties have enjoyed a
reasonable opportunity to glean the material facts. Second, the court may enter
summary judgment sua sponte only if it first gives the targeted party appropriate
notice and a chance to present its evidence on the essential elements of the claim or
defense.
8
Berkovitz, 89 F.3d at 29 (citations omitted); accord Stella v. Town of

Tewksbury, 4 F.3d 53, 55 (1st Cir.1993).
In the instant case, the parties disagree about the status of pretrial discovery at
the time the district court acted, and, thus, it is unclear whether the first
condition precedent to a sua sponte summary judgment was met. We may skirt
that imbroglio, however, for both of the Berkovitz conditions ordinarily must
be fulfilled in order for a sua sponte summary judgment to withstand scrutiny-and in this case, the second condition was never satisfied.
10
In the context of a sua sponte summary judgment, "notice" means that the
targeted party "had reason to believe the court might reach the issue and
received a fair opportunity to put its best foot forward." Jardines Bacata, 878
F.2d at 1561. The court below gave no such notice. Prior to making the
spontaneous ruling, it never informed the plaintiffs that it was considering a
judgment that would extirpate their claims against Laube and/or Feliciano in her
individual capacity. By the same token, it never invited the plaintiffs to
assemble and proffer their best evidence in connection with those claims. To
the contrary, the court's margin order, inscribed well before it ruled on the
defendants' motion, stated in no uncertain terms that its decision would conform
to the limited scope of the motion. When a court announces that it will follow a
procedural course, the parties are entitled to rely on that announcement unless
and until the court signals an impending change and affords a reasonable
opportunity to regroup. See Berkovitz, 89 F.3d at 30; Stella, 4 F.3d at 55-56.
The court's failure to adhere to these guidelines requires vacation of the
challenged portion of the judgment below.
11
The defendants' principal rejoinder is that notice would have been a futile
exercise because the plaintiffs have no case: the accident was unforeseeable,
and pretrial discovery has unearthed nothing that would show negligence on
Feliciano's or Laube's part. That may well be true. From the pleadings and the
briefs, the plaintiffs' case appears to be an uphill climb. But courts

contemplating the entry of summary judgment cannot simply presume that
plaintiffs will lose difficult cases and act accordingly. Cf. Greenburg v. Puerto
Rico Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987)
("Fed.R.Civ.P. 56 does not ask which party's evidence is more plentiful, or
better credentialed, or stronger."). When, as now, the question comes down to
one of fact, a plaintiff is entitled to advance warning that the nisi prius court is
considering terminating his case by means of summary judgment, a fair
opportunity to marshal whatever evidence he can muster, and a chance to put
forward his assembled evidence, along with developed legal argumentation, in
an effort to persuade the trier that a full-blown trial is warranted. When a trial
court fails to furnish such notice and pretermits the plaintiff's presentation, it
would be unseemly for an appellate court to require the plaintiff to go outside
the record and make an affirmative showing that his claim is viable. In all but
the most unusual cases, the record underlying that sort of fact-intensive
analysis must first be constructed in the district court.
12
We need go no further. Because the lower court did not afford the plaintiffs
adequate notice and a suitable opportunity to be heard before it exceeded the
scope of the motion that was pending before it, we vacate so much of the
court's order as purports to enter judgment in favor of Laube, Feliciano in her
individual capacity, and their respective insurers, see supra note 1. We do not
foreclose the possibility of summary judgment should the defendants so move,
nor do we take any view as to the likely outcome of the case upon further
proceedings below.
13
Vacated in part and remanded. Costs to appellants.
Of the District of Puerto Rico, sitting by designation
The plaintiffs also sued two other defendants, Arecio Feliciano and Carmen
Ana Roman Rodriguez, but later voluntarily dismissed them from the action.
Then, they added two insurance carriers in an amended complaint. Because the
putative liability of the insurers is not in issue in this appeal, we omit any
further reference to them
According to the opinion, the court took this action notwithstanding its explicit
acknowledgment that "the motion for summary judgment only relates to OTB
and Esther Feliciano Roman [in her corporate capacity]."

Leyva v. On The Beach, Inc., 171 F.3d 717, 1st Cir. (1999)

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171 F.

Chelsea LEYVA, etc., et al., Plaintiffs, Appellants,

United States Court of Appeals,

On September 15, 1995, a tragedy occurred at a three-story beach house in

Jorge Alberto Leyva, variously described as a good friend of Laube and an

Invoking diversity jurisdiction, 28 U.S.C. 1332(a), Leyva's family--all of

whom were domiciled in Florida--brought a wrongful death action in the

"unnecessary haste frequently results in more leisurely repentance"). Moreover,

Berkovitz, 89 F.3d at 29 (citations omitted); accord Stella v. Town of

briefs, the plaintiffs' case appears to be an uphill climb. But courts

Vacated in part and remanded. Costs to appellants.

Of the District of Puerto Rico, sitting by designation

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