UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2365
GUILLERMO BONILLA-AVILES,
MARIA VELAZQUEZ, C/P BONILLA-VELAZQUEZ,
Plaintiffs, Appellants,
v.
SOUTHMARK SAN JUAN, INC., ET AL,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Friedman,* Senior Circuit Judge,
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and Stahl, Circuit Judge.
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John Ward Llambias for appellants.
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Maria Soledad Ramirez Becerra with whom Mercado & Soto was on
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brief for appellee Saint James Security, Inc.
Ricardo L. Rodriguez Padilla for appellee Southmark San Juan,
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Inc.
Ray Fargason, Harding, Bass, Fargason, Booth & Calfin and Maria
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Teresa Agudo Loubriel on brief for appellee Calypso Water Sports, Inc.
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May 12, 1993
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*Of the Federal Circuit, sitting by designation.
FRIEDMAN, Senior Circuit Judge. The United States District
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Court for the District of Puerto Rico dismissed the
plaintiffs' diversity tort suit on two grounds: (1) that
the Puerto Rico statute of limitations barred the suit and
(2) that dismissal was warranted because of one of the
plaintiffs' repeated failures to comply with the court's
pretrial orders. We affirm the dismissal on the limitations
ground and, therefore, find it unnecessary to reach the
second ground.
I
On April 4, 1991, the plaintiffs, Mr. Bonilla and
his wife, filed a diversity action in the United States
District Court for the District of Puerto Rico against the
defendants. The complaint alleged that on February 5, 1990,
while Mr. Bonilla was a guest at the Sands Hotel in Puerto
Rico and as a result of the hotel's negligence, he suffered
various injuries when he was struck in the head with a
volleyball while in the Jacuzzi area. The complaint sought
damages of $1,450,000.00.
More than 16 months later, following repeated
failures of Mr. Bonilla to comply with various pretrial
(including discovery) orders of the court, the court granted
the defendants' motion for summary judgment and dismissed
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the complaint. The court held: (1) that Puerto Rico's one-
year tort statute of limitations barred the suit, since (a)
the suit was filed 14 months after the alleged injury and
(b) Mr. Bonilla had not established any of the statutory
grounds for tolling the statute; and (2) that dismissal "is
also based on plaintiff's failure to comply with court
orders."
II
As noted, Puerto Rico has a one-year statute of
limitations for all tort actions. P.R. Laws Ann. tit. 31,
5298(2) (1991). Since the complaint was filed 14 months
after Mr. Bonilla allegedly was injured, on its face it
appears untimely under the statute.
Puerto Rico, however, has a tolling statute which
provides:
Prescription of actions is
interrupted by their
institution before the courts,
by extrajudicial claim of the
creditor, and by any act of
acknowledgment of the debt by
the debtor.
Id. 5303 (1991).
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The plaintiffs here contend, as they did in the
district court, that three letters tolled the statute.
These letters were referenced and apparently attached to
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motions the plaintiffs filed, but the letters were,
nevertheless, not part of the record before the district
court. The court rejected the tolling contention on the
following ground:
Defendants have shown that the
action was filed more than one
year after the incident
occurred. Plaintiff, as the
non-moving party, must now
produce evidence to create an
issue of fact as to whether
the statute of limitations was
tolled or not. Plaintiff
alludes to letters stating
extrajudicial claims which he
states were sent to the
defendant. However, none of
these letters are included in
the record. Without these
letters, which we need in
order to determine whether or
not the statute of limitations
was tolled under Puerto Rico
law, we cannot proceed. We,
therefore, grant defendants'
summary judgment motion
because plaintiff has failed
to fulfill his burden of
production.
Since the plaintiffs have the burden to support
their claim that the statute was tolled, their failure to
introduce into the record the letters upon which they based
that claim was fatal to the claim. See Mesnick v. General
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Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (when the
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moving party has made a showing that no genuine issue of
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material fact is at issue and the nonmoving party "bears the
ultimate burden of proof, he must present definite,
competent evidence to rebut the motion" for summary
judgment), cert. denied, 112 S. Ct. 2965 (1992). The
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district court, therefore, justifiably rejected the tolling
contention for lack of supporting proof. Fed. R. Civ. P.
56(c) ("The judgment sought shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, and
admissions on file . . . show that there is no genuine issue
as to any material fact and that the moving party is
entitled to a judgment as a matter of law.").
In any event, the letters do not support the
tolling contention.
The first and third letters were written by the
insurance representative of the Sands Hotel and did not
admit liability. They, therefore, were not an "act of
acknowledgment of the debt by the debtor." Indeed, the
plaintiffs apparently do not claim to the contrary.
The plaintiffs rely upon the second letter,
written by Mr. Bonilla's lawyer to the insurance
representative in response to the latter's first letter,
which had sought certain information from Mr. Bonilla
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regarding the alleged accident. The only possibly pertinent
portion of Mr. Bonilla's letter stated:
I would appreciate that you
send me information about the
coverage of the policy Sand's
Hotel have [sic] for cases
like this and also if you have
any representative in Puerto
Rico with whom we can discuss
and try to settle this case.
The plaintiffs contend that this statement
constituted an "extrajudicial claim of the creditor" under
the tolling statute.
As this court has noted, the Supreme Court of
Puerto Rico "has stated that an extrajudicial claim, in
order to have tolling effect, must be 'precise and
specific.' Jimenez v. District Court, 65 P.R.R. 35, 42
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(1945)." Gual Morales v. Hernandez Vega, 604 F.2d 730, 733
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(1st Cir. 1979). In Pacheco v. National Western Life
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Insurance Co., 640 F. Supp. 900, 905 (D.P.R. 1986), the
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court ruled that a letter was sufficiently "precise and
specific" so as to toll the limitations period where
[t]he letter makes a clear and direct
reference to [the] Law . . . under which
the present action is brought. The
letter describes plaintiff's services
clearly falling within the shield of the
[relevant] law. The mention of amounts
of money owed and plaintiff's warning
that his lawyers were being notified
lead us to conclude that a claim under
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[the particular law at issue] was being
made through this letter and that the
letter in fact makes a claim for the
relief ultimately sought.
Id. (footnote omitted). On the other hand, we ruled
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insufficient for tolling, a letter that "specified what
plaintiffs were requesting, but did not give specific notice
of the basis of the lawsuit," and a second letter in which
the plaintiff merely stated his intention to file a
complaint against the defendant. Riofrio Anda v. Ralston
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Purina, Co., 959 F.2d 1149, 1154 (1st Cir. 1992). We
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concluded that neither of those letters were sufficient to
alert the defendant to the specific causes of action against
which it would be forced to defend itself. Id.
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We also have noted that under Puerto Rican law,
"[a] proper extrajudicial claim must seek the same relief
ultimately sought in the subsequent lawsuit." Fernandez v.
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Chardon, 681 F.2d 42, 53 (1st Cir.), cert. granted in part,
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459 U.S. 987, cert. denied in part, 459 U.S. 989 (1982), and
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aff'd sub nom. Chardon v. Fumero Soto, 462 U.S. 650 (1983).
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See also Rodriguez Narvaez v. Nazario, 895 F.2d 38, 44 (1st
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Cir. 1990) (the extrajudicial claim "must require or demand
the same conduct or relief ultimately sought in the
subsequent lawsuit"); Torres v. Superintendent of Police of
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P. R., 893 F.2d 404, 407 (1st Cir. 1990) ("[T]he
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extrajudicial claim must claim the same relief later
requested in the federal suit.").
Neither the request in Mr. Bonilla's lawyer's
letter for information about the Sands Hotel's insurance
coverage, nor the question whether the insurance
representative had "any representative in Puerto Rico with
whom we can discuss and try to settle this case,"
constituted a "precise and specific" extrajudicial claim
that sought "the same relief ultimately sought in the
subsequent lawsuit." The mere seeking of information
regarding a possible discussion and settlement of the case
with the insurance representative did not indicate that the
plaintiffs were asserting a substantial damages claim for
the injuries Mr. Bonilla allegedly suffered.
The letter fell far short of the specificity
required to alert the defendant to the particulars of a
likely damages suit. It was not a "request for monetary
compensation as a result of an injury suffered" that this
court held was the basis of decisions holding that an
extrajudicial demand had triggered the tolling of a Puerto
Rican statute of limitations. Hernandez del Valle v. Santa
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Aponte, 575 F.2d 321, 323 (1st Cir. 1978) (letters seeking
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reinstatement of discharged employee did not toll statute of
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limitations on claim under 42 U.S.C. 1983 for damages for
the discharge). See also Rodriguez Narvaez, 895 F.2d at 43
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("The Supreme Court of Puerto Rico has stated that in view
of the importance of the institution of 'extinctive
prescription' in the civil law tradition tolling provisions
must be interpreted restrictively against the person
invoking their protection.") (citing Diaz de Diana v.
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A.J.A.S. Ins. Co., 110 P.R.R. 602, 607-08 n.1 (1980))
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(footnote omitted).
Affirmed.
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