[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
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FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 92-2423
TERESA J. ROBLETO,
Plaintiff, Appellee,
v.
GUILLERMO BUCH RODRIGUEZ, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Anthony J. Castellanos, U.S. Magistrate Judge]
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Before
Torruella, Selya and Cyr, Circuit Judges.
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Ciro A. Betancourt and Eduardo A. Betancourt on brief for
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appellants.
Juan A. Lopez-Conway and Calvesbert & Brown on brief for
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appellee.
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June 11, 1993
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Per Curiam. The district court entered a default in
Per Curiam.
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this debt-collection action, see Fed. R. Civ. P. 55, and
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thereafter held an evidentiary hearing to assess damages. By
consent of the parties, a magistrate judge presided at the
hearing. The magistrate made extensive findings and entered
judgment accordingly. Defendants appeal.
Defendants do not challenge either the district court's
jurisdiction or the entry of the default; and, moreover, they
never asked the district court to vacate the final entry of
default or set it aside. Thus, the only matters cognizable on
appeal relate to damages. See Goldman, Antonetti, Etc. v. Medfit
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Int'l, Inc., 982 F.2d 686, 693 (1st Cir. 1993) (holding that,
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upon an entry of default, the well-pleaded facts contained in the
complaint are considered to have been proved and the defendants'
liability is deemed conclusively established); Brockton Sav. Bank
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v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 13 (1st Cir. 1985)
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(similar), cert. denied, 475 U.S. 1018 (1986); see also 9A
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Charles A. Wright et al., Federal Practice & Procedure 2688 (2d
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ed. 1983).
We have carefully reviewed the record, the magistrate's
findings, and the parties' briefs in light of this basic
principle. Doing so, we conclude that issues I and III represent
thinly-veiled attempts to undermine the confession of liability
that arises from the entry of default.1 Since appellants, by
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1For ease in reference, we adopt appellants' numbering of
the issues on appeal.
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defaulting, allowed the clock to expire and forfeited their right
to contest liability, we cannot allow them to skirt the condign
consequences of an entry of default by undertaking an end run
after the final whistle.
Turning to appellants' evidentiary issues, we find them
meritless. As to issue II, we can see no improper limitation of
appellants' right of cross-examination. See, e.g., United
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States v. Boylan, 898 F.2d 230, 254-55 (1st Cir.) (discussing
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trial court's broad discretion in respect to scope of cross-
examination), cert. denied, 498 U.S. 849 (1990). The
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magistrate's circumscription of the scope of appellants' cross-
examination of Robleto could not have created cognizable
unfairness because no liability issues were in contention due to
the default. The truth was not open to cross-questioning but had
previously been established as a matter of law.
As to issue V, we do not think the testimony concerning
the check drawn to the order of Aquiles Marin violated the parol
evidence rule. See, e.g., Brennan v. Carvel Corp., 929 F.2d 801,
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808 (1st Cir. 1991) (holding that a court may receive extrinsic
evidence to elucidate the significance, rather than vary or
contradict the terms, of a written instrument). In any event,
Rule 69(B) of the Puerto Rico Rules of Evidence, P.R. Laws Ann.
tit. 32, App. IV (1983), upon which appellants rely, does not
control in a federal court. See Ricciardi v. Children's Hosp.
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Medical Center, 811 F.2d 18, 21 (1st Cir. 1987) ("In general, the
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Federal Rules [of Evidence] apply to all cases in the [federal]
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district courts, including diversity cases.").
Issues IV, VII, and IX depend on appellants' assertion
that the magistrate's findings are contrary to the weight of the
evidence. We disagree with this assertion. It is black letter
law that, "[o]nce the entry of a default establishes the fact of
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damage, the trial judge, sitting without a jury in a Rule 55
proceeding, has considerable latitude in determining the amount
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of damages." Jones v. Winnepesaukee Realty, Inc., F.2d ,
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(1st Cir. 1993) [No. 92-2151, slip op. at 6]. This generous
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standard dictates the result we must reach. In each of the
instances highlighted by appellants, the record reveals an
adequate foundation for the magistrate's findings.
It would serve no useful purpose to spell out our
rationale in greater detail. See, e.g., DiMillo v. Sheepscot
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Pilots, Inc., 870 F.2d 746, 750 (1st Cir. 1989) (explaining that
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an appellate court need not set out the facts where "[t]he
parties know . . . what inferences the proof permits; the
magistrate canvassed matters with care and elaborated his
reasoning sufficiently; and the case is so fact-specific that
piecing together the evidentiary puzzle would serve no
precedential purpose."). It suffices to say that we discern no
hint of error, clear or otherwise. See generally id. at 750-51
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(holding that, when there are two supportable views of the proof,
the factfinder's choice between them cannot be clearly
erroneous); Irons v. FBI, 811 F.2d 681, 684 (1st Cir. 1987)
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(stating that, "[w]here the conclusions of the [trier] depend on
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its election among conflicting facts or its choice of which
competing inferences to draw from undisputed basic facts,
appellate courts should defer to such fact-intensive findings"
unless they are wholly unsupported by the record).
The foregoing exposition clears the decks, save for
issue XI.2 That issue deals with the magistrate's award of
attorneys' fees to the prevailing plaintiff under P.R. Laws Ann.
tit. 32, App. III, Rule 44.1(d)(1989). It is settled that, "[i]n
diversity cases where Puerto Rico law supplies the rule of
decision, the federal court must utilize [Rule 44.1(d)]." De
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Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 126
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(1st Cir. 1991). The rule is triggered by a finding that a
losing party "ha[s] been unreasonably adamant or stubbornly
litigious, beyond the acceptable demands of the litigation,
thereby wasting time and causing the court and the other
litigants unnecessary expense and delay." Id. Here, the
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magistrate made just such a finding.3 He documented it,
moreover, by elucidating book and verse anent appellants'
delaying tactics, frustration of discovery, and failure to pay a
monetary sanction earlier imposed.
We are constrained to review this finding "in a
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2Issues VI and VIII are not accompanied by the slightest
shred of developed argumentation and are, therefore, deemed to
have been waived. See United States v. Zannino, 895 F.2d 1, 17
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(1st Cir.), cert. denied, 494 U.S. 1082 (1990).
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3Indeed, the magistrate went a step further, explicitly
finding that appellants litigated in bad faith. This finding,
too, is supportable on the record.
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deferential manner, using an abuse-of-discretion approach." Id.
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at 126-27. That ends the matter. We are satisfied that the
challenged finding passes muster with flying colors: on this
record, a conclusion that appellants acted obstinately and with
temerity falls well within the realm of the magistrate's
discretion. The award of counsel fees must, therefore, stand.4
We need go no further. Because this appeal presents no
substantial question, we summarily affirm the judgment below.
See 1st Cir. Loc. R. 27.1.
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Affirmed. Double costs to appellee.
Affirmed. Double costs to appellee.
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4Appellants challenge only the fact of the award, not the
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amount awarded.
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