320 F.

3d 69

Raymond LEN; Carmen Pantojas-Maldonado; Conjugal

Partnership, Leon-Pantojas; Raymanuelle Leon-Pantojas,
minor, Plaintiffs, Appellants,
v.
MUNICIPALITY OF SAN JUAN, Defendant, Appellee.
No. 01-2408.

United States Court of Appeals, First Circuit.

Heard November 5, 2002.
Decided February 14, 2003.
1

Rick Nemcik-Cruz, for appellant.

Maritza Torres-Rivera, with Adrin Mercado on brief, for appellee.

Before LYNCH and HOWARD, Circuit Judges, and SHADUR, * Senior

District Judge.

SHADUR, Senior District Judge.

Raymond Leon, Carmen Pantojas-Maldonado, their marital partnership and

their son Raymanuelle Leon-Pantojas ("Raymanuelle")(collectively "Plaintiffs")
appeal from the district court's grant of summary judgment in favor of the
defendant Municipality of San Juan1 ("Municipality" or "San Juan") in this
diversity of citizenship action. Plaintiffs contend (1) that the Municipal
Hospital of the City of San Juan was negligent and in breach of its statutory
duties when it failed to screen Raymanuelle for phenylketonuria ("PKU") as an
infant and (2) that all necessary preconditions for this lawsuit have been met.

After reviewing the parties' submissions on San Juan's motion for summary
judgment under Fed.R.Civ.P. ("Rule") 56, the district court granted that motion
because Plaintiffs had failed to notify San Juan within 90 days of learning of the
damages claimed as required by Article 15.003 of the Autonomous
Municipalities Act of the Commonwealth of Puerto Rico ("Municipal Notice
Statute"). We reverse the district court's grant of summary judgment in favor of
San Juan and remand this case for further proceedings consistent with this

opinion.
Subject Matter Jurisdiction
7

Although the parties failed to note the less-than-precise nature of the pleadings
as to the establishment of the required diversity of citizenship, we of course
have the obligation to consider such subject matter jurisdictional issues sua
sponte. We have done so, and as the brief ensuing discussion reflects, we have
confirmed that jurisdiction exists.

Plaintiffs' Second Amended Complaint ("Complaint") alleges that they are

"residents" of Florida. Because 28 U.S.C. 1332 ("Section 1332") vests federal
courts with jurisdiction over cases involving "citizens" of different states who
meet the amount in controversy requirement (an element clearly satisfied here),
Plaintiffs' terminology is both imprecise and technically incorrect. In this
Circuit, however, the failure to use the term "citizen" or "domiciliary" rather
than "resident" does not necessarily preclude diversity jurisdiction (see
Cantellops v. Alvaro-Chapel, 234 F.3d 741, 742-43 (1st Cir.2000)).

Here the record contains evidence that at the time of suit Plaintiffs were not
only residents of Florida but were also domiciled there, intending to remain
indefinitely as required under Section 1332. Plaintiffs relocated to Florida in
part to secure better medical treatment for Raymanuelle, who will likely need
long term care. At the time the Complaint was filed, they had lived for three
years in Florida, where both parents are employed and Raymanuelle is enrolled
in the elementary school system.

10

Despite the deficient terminology in their pleading, then, Plaintiffs' residence

plainly coincides with their state of citizenship, so that Section 1332's diversity
jurisdiction was properly invoked. We therefore turn to the merits.

Standard of Review
11

We review the grant of summary judgment de novo, applying the same

standard as did the district court (Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st
Cir.2002)). Under Rule 56(c) summary judgment is appropriate only "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, 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." Familiar Rule 56 principles impose on San Juan as movant the initial
burden of establishing the lack of a genuine issue of material fact (Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986)). On appellate review we, like the district court, are required to draw all
reasonable inferences in the light most favorable to nonmovant Plaintiffs
(Carroll, 294 F.3d at 237).
Facts
12

Raymanuelle was born on August 25, 1988 in the Municipal Hospital of the
City of San Juan ("Hospital"), a facility operated by San Juan. Blood samples
taken from Raymanuelle were tested for certain diseases, but it is uncontested
that he was not screened for PKU at that time. Raymanuelle's mother was
discharged from the Hospital on August 26, 1988, and the newborn was
discharged the following day.

13

Early in Raymanuelle's life his parents noticed problems with their son's
development, and they sought medical treatment for him from numerous
doctors and clinics. In 1996 Plaintiffs moved to Tampa, Florida, in large part to
obtain better medical and rehabilitative care for their son. Tampa Dr. Terry
DeClue first diagnosed Raymanuelle's condition as classic PKU on July 30,
1998, and he notified the parents of that diagnosis in an August 5, 1998 letter.

14

Until that time Raymanuelle's parents had believed that their son had been
properly screened by the hospital at the time of his birth. But in light of the
PKU diagnosis, Dr. DeClue then began efforts to obtain Raymanuelle's medical
records from Puerto Rico. Based on his review of those records, the Plaintiff
parents first learned that the Hospital had not screened Raymanuelle for PKU.

15

According to the Complaint, PKU is a metabolic disease that results in mental

retardation and other neurological problems when treatment is not initiated
within the first few weeks of an infant's life. On July 2, 1987, Puerto Rico
enacted a statute that required the creation and adoption of regulations to
implement mandatory genetic screening for all Puerto Rico newborns (24 P.R.
Laws Ann. 3152-3155). In October 1988, shortly after Raymanuelle's birth,
regulations pursuant to that statute were approved that required all hospitals in
Puerto Rico to screen newborn infants for PKU.

16

In their original Complaint filed on August 4, 1999, Plaintiffs sued the Hospital
as well as the physicians who treated Raymanuelle in Puerto Rico for
negligently failing to screen for and diagnose Raymanuelle's PKU. Plaintiffs
allege that because Raymanuelle's condition went undiagnosed and untreated
for years, he suffered irreversible neurological damage and severe mental
retardation, as a result of which he will require lifelong care. Notice of the

original Complaint was served on San Juan on August 13, 1999.

17

San Juan later filed a Rule 56 motion, arguing (1) that Appellants had failed to
notify the Municipality within 90 days of learning of the damages claimed as
required by the Municipal Notice Statute (21 P.L.R.A. 4703), (2) that the
action was time-barred and (3) that there was no duty to screen Raymanuelle
for PKU at the time of his birth in August 1988. On August 6, 2001, the
District Court granted San Juan's motion on the first ground and dismissed the
action. This appeal followed.

Municipal Notice Statute

18

This action concerns the application of Puerto Rico's Municipal Notice Statute
(21 P.R. Laws Ann. 4703):

19

Any person who has a claim of any kind against a municipality for personal or
property damages due to the fault or negligence of the municipality shall so
notify the Mayor, in writing, stating clearly and concisely the date, place, cause
and general nature of the damages suffered. Said notification shall also specify
the amount of monetary compensation or the kind of relief appropriate for the
damages suffered, the names and addresses of his/her witnesses, the claimant's
address and, in cases of personal damages, the place where medical treatment
was first received.

***
20
21

If the injured party is a minor or a ward, the person exercising patria potestas or
the custody of the minor, or the guardian, as the case may be, shall be obliged
to notify the Mayor of the claim within ninety (90) days of the date on which
he/she learned of the damages claimed. The above shall not be an obstacle to
the minor or ward's making said notification on their own initiative within the
specified term, if the person exercising patria potestas, or custody or
guardianship fails to do so.

22

(b) Jurisdictional requirement. No legal action of any kind shall be initiated

against a municipality for damages due to negligence unless written notification
is made in the form, manner and terms provided in this subtitle.

23

Interpreting that statute, the Supreme Court of Puerto Rico has held, most
recently in Mendez Pabon v. Mendez Martinez, 2000 TSPR 119 (2000), that the
notice requirement, while not jurisdictional in nature, is a "condition precedent

requiring strict compliance" (J.S.T. at 22 2 ; see also Passalacqua v.

Municipality of San Juan, 116 P.R.R. 756, 766 (1985), quoting Mangual v.
Superior Court, 88 P.R.R. 475, 483 (1963)).
24

But that condition has not been applied inexorably (Mendez Pabon, J.S.T. at
22). Instead the Supreme Court of Puerto Rico has "allowed the flexible
application" of the Municipal Notice Statute in light of the purposes and
objectives of the statute3 (id.). Lopez v. Puerto Rico, 133 P.R. Dec. 243 (1993)
explained that some claimants have been exempted from the notification
requirement "because under the circumstances of each one of those cases the
legislative scheme was devoid of vitality; because in them the purposes and
objectives of the requirement could not be achieved; because legally, there was
no raison d'etre for applying the requirement to such circumstances since said
requirement was not established for them" (J.S.T. at 8). But Lopez, id. outlined
the congeries of circumstances that would mandate strict compliance with the
requirement: (1) an extra-contractual claim for damages (2) based on the
municipality's alleged fault or negligence, (3) initiated by claimant (4) directly
against the municipality (5) "in which the municipality has no means to know
the essential details of the damage based upon which the claim is filed without
some adequate notice by the claimant."4

25

Where the government entity does have its own means to know of the damage
suffered by a claimant without outside notice, however, the Puerto Rico
Supreme Court has taught that the statutory notice is unnecessary essentially
that the fifth factor later identified in Lopez is not present (Melendez Gutierrez
v. Commonwealth of Puerto Rico, 13 P.R. Offic. Trans. 1046 (1983)). For that
reason Melendez, id. at 1049 reversed the lower court's dismissal of a claim that
alleged medical negligence on the part of a Commonwealth hospital. That
dismissal had been predicated on Plaintiffs' non-compliance with Article 2A of
the Law of Claims and Suits against the State ("Commonwealth Notice
Statute," 32 P.R. Laws Ann. 3077a), a provision directly analogous to the
Municipal Notice Statute. Because it found that the operative events had been
thoroughly documented in the records kept by the hospital, Melendez, id. at
1049 held:

26

[I]n cases such as the one at bar where the risk of the objective evidence's
disappearance is minimal, where there is effective proof of the identity of the
witnesses, and where the State may easily investigate and corroborate the facts
alleged in the complaint filed the cited 3077a is not strictly applicable
inasmuch as the objective sought by the application therefor has no raison
d'tre.

27

Although Plaintiffs have understandably stressed Melendez both in their district

court opposition to San Juan's Rule 56 motion and then again before us, San
Juan has simply ignored that decision in all of its court submissions. Instead
San Juan has approached this litigation as though the Municipal Notice Statute
must be viewed as a no-exception requirement.

28

That, however, is a basic misconception. To be sure, Melendez dealt with the

application of the Commonwealth Notice Statute rather than the Municipal
Notice Statute. But because of the common source, the nearly identical
language and the intertwined history of the two statutes, the Supreme Court of
Puerto Rico has consistently interpreted them in tandem (see, e.g., Passalacqua,
116 P.R.R. at 763-64). Indeed, the recent Mendez Pabon decision expressly
cited Melendez and specifically looked to judicial interpretations of the
Commonwealth Notice Statute to shed light on the application of the
notification requirement to a suit against the municipality (J.S.T. at 22).

29

Thus San Juan's omission of cases interpreting the Commonwealth Notice

Statute from its analysis reflects precisely the "erroneous impression" of Puerto
Rican law adverted to in the concurring opinion in Lopez, J.S.T. at 15 (Rebollo
Lopez, J., concurring). Instead cases such as Mendez Pabon make it clear that
courts are to apply the Melendez-created judicial exception to the
Commonwealth Notice Statute with equal force to the Municipal Notice
Statute.

30

Just as was true in Melendez, newborn Raymanuelle's medical records which

have been in the Hospital's control since his birth and are still present there
thoroughly document the key facts at issue and identify the percipient witnesses
to his treatment by the Hospital. And that being so, the question becomes
whether that knowledge on the Hospital's part memorialized as it is in
incontestable documents that have been retained over the intervening years
satisfies the fifth Lopez-identified element needed to allow the exception to the
notice statute. Melendez teaches an affirmative answer to that question, and we
agree.

31

As indicated in n. 4, Plaintiffs seek to add another string to their bow by urging

that the district court, relying on an erroneous translation of the fifth element,
wrongly asked whether the Hospital (and hence San Juan) had no way to know
the essential details of Plaintiffs' claim for damages absent notice, rather than
whether the municipality had no other way to know the essential details of the
harm for which Plaintiffs have demanded compensation. They point to the fact
that the Supreme Court of Puerto Rico has not made available an official

translation of Lopez. But we need not enter the fray on that score, for Melendez
compels our conclusion here under the stipulated translation of Lopez that has
been provided by the parties.
32

In sum, the Hospital's records themselves unquestionably gave San Juan

knowledge of the damage to Raymanuelle based on which Plaintiffs' claim is
filed without any need for further notification from Plaintiffs those retained
records definitively show the Hospital's failure to test Raymanuelle for PKU.
And under Melendez such absence of any need for notification took Plaintiffs'
claim out of the reach of the Municipal Notice Statute. Because Melendez
controls here, we reverse the result reached by the district court.

Equal Protection Challenge

33

Because we have found the district court's ruling on applicability of the

Municipal Notice Statute to be erroneous, we also need not consider Plaintiffs'
alternative contention that the legislation violates the Equal Protection Clause.
But that issue is not properly before us in any event, for Plaintiffs failed to raise
it in the court below.

Other Rule 56 Issues

34

As stated earlier in this opinion, San Juan's Rule 56 motion also argued that
Plaintiffs' claim is time-barred and that the Hospital had no duty to test
newborn Raymanuelle for PKU. Although the district court reached neither of
those contentions because it dispatched the case on the ground discussed at
length here, the principle that an affirmance on appeal can be based on any
available ground compels us to spend a few moments on those matters as well.

35

As to the limitations issue, San Juan contends this action was untimely because
it was not brought until August 4, 1999, more than a year after Dr. De Clue
diagnosed Raymanuelle's PKU condition on July 30, 1998. But the
documentary record of Dr. DeClue's notice of that diagnosis to Raymanuelle's
parents is his August 5, 1998 letter to them, dated less than a year before suit
was filed.5 Unless San Juan were somehow able to establish on remand that the
doctor advised the parents of the diagnosis before he wrote them, then, its
limitations argument fails.

36

As for the duty of care issue, the absence of any resolution of that facet of
Plaintiffs' negligence claim by the district court makes it one of the matters to
be resolved on remand. We therefore express no view on the subject.

Conclusion
37

We REVERSE the order of the district court granting San Juan's Rule 56
motion for summary judgment. We REMAND the case to the district court for
further proceedings in light of this opinion.

Notes:
*

Of the Northern District of Illinois, sitting by designation

All other defendants that remained in the case, physicians who had treated
Raymanuelle in Puerto Rico at some point in time, their spouses and their
marital partnerships, were voluntarily dismissed without prejudice to allow this
appeal to go forward

All "J.S.T." references are to pages of the parties' joint stipulated translations of
some of the decisions of the Supreme Court of Puerto Rico cited in this opinion
(see n. 4)

Mendez Pabon, J.S.T. at 21-22 repeated those purposes and objectives as

explained in Mangual:
1) to provide the political bodies an opportunity to investigate the facts which
give rise to the claim;
2) to discourage unfounded claims;
3) to facilitate a prompt settlement;
4) to permit immediate inspection of the scene of the accident before conditions
change;
5) to discover the names of witnesses and interview them while their
recollections of the events is trustworthy;
6) to notify the municipal authorities of a pending legal action so that the
necessary financial reserves are provided in the annual budget; and
7) to minimize the amount of damages sustained through prompt intervention
offering medical treatment and the provision of medical facilities to the injured

party.
4

Because the Supreme Court of Puerto Rico has yet to release an official
translation ofLopez, the text here quotes the version provided by the parties on
appeal as a stipulated translation in compliance with our Circuit Rule 30(d).
Plaintiffs argue that the district court relied on an erroneous translation of the
fifth element in Lopez. As discussed later in the text, however, the result we
reach hereafter does not require us to confront that issue.

Before us San Juan asserts, without any support in the record, that Plaintiffs
themselves learned of Raymanuelle's PKU diagnosis on July 30, 1998 (when
the doctor first arrived at that diagnosis) rather than upon their receiving the
doctor's August 5 letter