Rivera Lopez v. Mun. of Dorado
U.S. Court of Appeals for the First Circuit
Rivera Lopez v. Mun. of Dorado
Opinion
USCA1 Opinion
February 9, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1226
RAYMOND RIVERA LOPEZ, ET AL.,
Plaintiffs, Appellees,
v.
MUNICIPALITY OF DORADO,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court issued November 17, 1992, is amended as
follows:
On cover sheet delete "Hon. Gilberto Gierbolini, U.S. District
Judge" and insert "Hon. Justo Arenas, U.S. Magistrate Judge."
November 17, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1226
RAYMOND RIVERA LOPEZ, ET AL.,
Plaintiffs, Appellees,
v.
MUNICIPALITY OF DORADO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
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Before
Breyer, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Carlos Lugo Fiol, Assistant Solicitor General, with whom Anabelle
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Rodriguez, Solicitor General, and Reina Colan de Rodriguez, Deputy
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Solicitor General, were on brief for appellant.
Arnaldo E. Granados with whom Ortiz Toro & Ortiz Brunet was on
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brief for appellees.
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ALDRICH, Senior Circuit Judge. Plaintiffs Raymond
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Rivera Lopez, et al. brought this diversity tort action in
the Puerto Rico District Court against the Municipality of
Dorado by a complaint filed on October 18, 1990. The summons
was allegedly served on one Jes s E. Palmer, Esquire, an
attorney employed part-time by defendant. The local rule,
adopted by the federal rule, provides for service upon the
"chief executive [or] a person designated by him." Puerto
Rico R. Civ. P. 4.4(h); Fed. R. Civ. P. 4(d)(6). Defendant
failed to appear and, in due course, was defaulted.
Thereafter, without any attempt having been made to notify
defendant, a jury trial was held to determine damages. The
jury having found $300,000, judgment was entered accordingly
for plaintiffs, but, within 10 days, defendant appeared
specially and moved to remove the default and to vacate the
judgment. Affidavits were submitted, hereinafter described.
Defendant's motion was referred to a magistrate
judge who, according to plaintiffs' brief, "had the
discretion and opportunity to consider the credibility of the
testimonies that the court had before it." This is not,
however, what he did. Rather, recognizing that both the
mayor and attorney Palmer had filed affidavits to the effect
that Palmer lacked authority to receive service -- Palmer
adding that he had so informed the process server -- the
magistrate invoked, instead, the doctrine of estoppel. On
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three previous occasions defendant had not complained of
service that had been made on persons other than the mayor.1
Relying on this showing, the magistrate said, "The estoppel
doctrine . . . arises out of the general principle of equity
that requires one to proceed in good faith in juridical
affairs. . . . The previous unconditional submissions to the
jurisdiction of the court . . . are an implicit authorization
to any complainant to follow the same procedure. . . . [T]he
defendant is estopped by its previous acts."
This was a grossly enlarged view. A party claiming
estoppel must show reliance, to his detriment, on a
misrepresentation of facts. See Heckler v. Community Health
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Services of Crawford City, Inc., 467 U.S. 51, 59 (1984); K-
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Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 912 (1st
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Cir. 1989). There was no testimony that either plaintiffs or
the process server relied on, or even knew of, the previous
occurrences on which the magistrate predicated estoppel.
While, as the magistrate said, estoppel is based on fairness,
plaintiffs cannot claim unfairness by reason of something of
which they were ignorant.
We would add that this is not an estoppel case in
any event. The acceptance of service in prior cases
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1. In unrelated suits, brought by other parties, defendant
had appeared without contest when the service had been upon
Mr. Palmer's secretary, defendant's Finance Director, and Mr.
Palmer.
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unconnected with plaintiff might have been specially
authorized, or defendant, having knowledge, might have chosen
to waive formalities. It should not be precluded from doing
this at the cost of a general representation to the public.
The issue here is a factual one of authority. In
view of its importance, there should be a hearing on live
testimony, not on conflicting affidavits. We, of course,
express no opinion, but, in connection with the admissibility
of the process server's testimony that Palmer stated he was
authorized, we call attention to Fed. R. Evid. 801(d)(2)(D).
Though cast as a rule of evidence, this is a recital of, not
a change in, the law of agency. See Union Mutual Life Ins.
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Co. v. Chrysler Corp., 793 F.2d 1, 8 (1st Cir. 1986). Also
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we note the fact that, once challenged, plaintiffs have the
burden of proving proper service. Saez Rivera v. Nissan Mfg.
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Co., 788 F.2d 819, 821 n.2 (1st Cir. 1986); Aetna Business
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Credit, Inc. v. Universal Decor & Exterior Design, Inc., 635
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F.2d 434, 435 (5th Cir. 1981). Finally, we believe that, as
a matter of appearances, the new hearing should be before a
new judge or magistrate. Cf. Mass. Dist. Ct. Local Rule
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40.1(i).
Reversed and remanded for further proceedings in
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accordance herewith.
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Reference
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