USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1903

JOSE M. APONTE, ET AL.,

Plaintiffs, Appellees,

v.

MARTHA TABARES, D/B/A MANHATTAN HOLDING COMPANY, ET AL.,

Defendants, Appellees.

____________

DELIA ESTHER RIVERA-PEREZ, D/B/A MANHATTAN HOLDING COMPANY,

D/B/A TRADING CAPITAL INTERNATIONAL CORP.,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________

____________________

Carlos M. Mangual Lopez on brief for appellant.

_______________________
Frank D. Inserni on brief for appellees.
________________

____________________

May 8, 1997
____________________

Per Curiam.
___________

Delia

E.

Rivera-Perez

("Rivera")

appeals from a judgment entered after a jury verdict in favor

of

plaintiffs on

considered her

their

fraud claims.

arguments on appeal and

We have

carefully

determined that they

are without merit.

I.

Subject Matter Jurisdiction

___________________________

Appellant challenges the

subject

failed

matter

jurisdiction on

to satisfy the

requirement.

federal district

the ground

that plaintiffs

jurisdictional amount

Limits on subject matter

in controversy

jurisdiction are not

waivable and, therefore, may be raised at any time.

Wm.

Moore, et al., Moore's Federal Practice

________________________

1997).

"For

jurisdiction,

the

purposes

the amount

in

of

court's

102.13 (3d ed.

establishing

controversy

15 James

diversity

is determined

by

looking to

filed."

F.3d

amount

the circumstances at

the time

Coventry Sewage Assocs. v.

________________________

1, 4 (1st

test

recovered

Cir. 1995).

is

not

Miller & Edward

is

Dworkin Realty Co., 71

___________________

Therefore, "the jurisdictional

dependent

by plaintiff."

the complaint

upon

14A Charles

the

amount

A. Wright,

actually

Arthur R.

H. Cooper, Federal Practice and Procedure

_______________________________

3702 at 31 (1985).

In

challenged

case like

this

defendant has

plaintiffs' allegations concerning

the amount in

controversy, "the plaintiff

to meet the requirements

one where

must produce sufficient evidence

of the 'legal certainty' test

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by a

preponderance of the

evidence supported by competent

'Competent proof' has

probability

Practice,
________

been defined as proof to

that jurisdiction

supra,
_____

102.107[1].

exists."

Under

proof.

a reasonable

15 Moore's Federal
________________

the legal

certainty

test, plaintiffs must establish "that it does not appear to a

___

legal certainty

that the

claim is below
_____

the jurisdictional

minimum." Id.,
___

102.106[1].

We assume

for purposes

plaintiffs'

claims

cannot

calculating

the requisite

be

of this appeal

aggregated

jurisdictional

Moore's Federal Practice, supra,

_________________________ _____

included claims

calculation.

Puerto

for damages

demonstrating

amount.

See
___

102.108[3][b].

for pain

Rico tort and contract law.

conclude

for purposes

We

and suffering

of

15

have

in the

Pain and suffering damages are recognized under

Nursery, Inc., 844 F. Supp.

______________

We

that these

that

each

that it does

See Serrano v. Nicholson

___ _______
_________

73, 76 (D.

plaintiff

Puerto Rico, 1994).

met

not appear to

that his claim is below $50,000.

his

burden

of

a legal certainty

II.
to
___

Judgment as a Matter of Law and Failure

_________________________________________
State a Claim
_____________

Appellant argues

denying

judgment

her motion

as a

pursuant

matter

sufficient evidentiary

for that

that the district

to Fed.

of law

where

basis for

party on that issue."

Civ. P.

"there is

50,

for

no

legally

a reasonable jury

to find

In reviewing the denial of a

motion for judgment as a matter of law,

-3-

R.

court erred in

we review the record

to

determine

basis

"provides an

adequate evidentiary

for the district court's decision to submit the matter

to the jury."

628,

whether it

634 (1st

Santiago Hodge v. Parke Davis & Co., 909 F.2d

______________
__________________

Cir. 1990).

Without the

trial transcripts,

which appellant has not provided, this court cannot make that

determination.

Therefore,

appellant is

not

entitled

to

relief on the ground that the district court erred in denying

her motion for

judgment as

a matter of

law.1
1

See
___

Valedon
_______

Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806

________
____________________________________________

F.2d 1128, 1135 (1st Cir. 1986) (this court will not review a

claim

of

error

if

appellant

has

failed

to

include

transcript

of the

pertinent

proceedings in

the record

on

appeal).

Appellant argued

does

on appeal, that the

in her motion to

dismiss, as she

complaint failed to

against her for fraud or breach of contract.

she

was not

plaintiffs

further

false

party

and,

to

the

therefore, was

contended

obligation

elements

that

"in

party cannot

of a

fraud claim

representation

____________________

by

be

contracts

not

the

She argued that

between

liable

absence

charged

state a claim

MHC

thereon.

of

and

She

contractual

with

fraud."

The

under Puerto Rico

law are

1) a

defendant,

(2)the

plaintiff's

1
1

Similarly, Rivera's claim that, as a matter of law, co-

plaintiff Carlos
against

Fernandez "did not

Delia Rivera

based

on his

have a cause

of action

testimony [at

trial],"

cannot be reviewed without the trial transcripts.

-4-

reasonable

and

plaintiff from

plaintiff.

foreseeable

his reliance,

See Wadsworth, Inc.

___ _______________

reliance

thereon,

and (4) intent

injury

to

to defraud

by

v. Schwarz-Nin, 951 F. Supp.

___________

314, 323

(D. Puerto Rico 1996).

The complaint sufficiently

alleged each of the required elements.

III.

Attachment
__________

We affirm

the district court's order

1, 1995 essentially for

only the following

on

dated August

the reasons stated therein.

We add

comments concerning appellant's arguments

appeal that the bond amount was insufficient and that the

hearing was inadequate because no evidence was introduced.

Under Rule 56.3

of the Puerto Rico

Procedure, P.R.Laws Ann. Tit.

Rules of Civil

32, App. III, the amount

of a

bond to support an ex parte attachment must be "sufficient to

secure

all damages arising from the remedy."

56.3. The

"the

Supreme Court

amount

[of

an

of Puerto

attachment

P.R.R. Civ. P.

Rico has cautioned

bond]

should

not

that

be

so

excessive as

the

to thwart

effectiveness of

the plaintiffs' purpose

the judgment

Conjugal Partnership v.
_____________________

Moreover,

change

Rodriguez, 116
_________

timely rendered."

D.P.R. 463

(1985).

"the amount of the bond would always be subject to

if the

defendant

attachment causes

Appellant did

hearing

to be

of securing

could

him exceeds the

show

that the

amount of the

damage

the

bond." Id.
___

not object to the amount of the bond until the

requested

by plaintiffs

-5-

and

she did

not

seek to

introduce any evidence to demonstrate that

the amount of the

bond

damages from

was

inadequate to

attachment.

cover

potential

Under these circumstances,

the district

the

court

did not err in setting the amount of the bond at $20,000.

Appellant argues that

the post-attachment

hearing

was inadequate because it was not a full evidentiary hearing.

From the minutes of

the hearing, it appears that

not request the opportunity to present evidence

plaintiffs' failure

Puerto

to present evidence.

Rivera did

or object to

Rule 56.5

of the

Rico Rules of Civil Procedure does not require a full

evidentiary hearing.

Cf. HMG Property Investors v.

___ ________________________

Parzue
______

Indus. Rio Canas, 847 F.2d 908, 914 (1st Cir. 1988) (holding
_________________

that

Rule 56.2 "requires notice and a fair chance to marshal

supporting facts

still

has not

presented

and theories -- nothing

explained

and how it would

what evidence

more").

Appellant

ought to

have been

have changed the

outcome of the

court order affirming

the attachment

attachment hearing.

The district

order is affirmed.
________

plaintiffs dated June

27.1.

The district court judgment in

10, 1996,

is affirmed.
________

favor of

See Loc.
___

R.

-6-