Víctor Omar Portugués-Santana v. Rekomdiv International Inc. and Richard Domingo

United States Court of Appeals
For the First Circuit
No. 12-1178
VÍCTOR OMAR PORTUGUÉS-SANTANA,
Plaintiff, Appellee,
v.
REKOMDIV INTERNATIONAL INC. AND RICHARD DOMINGO,
Defendants, Appellants,
v.
JAIME-ALBIZU LAMBOY-RILEY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Howard, and Thompson,
Circuit Judges.
Joseph H. Reinhardt for appellants.
Carlo Defendini-Díaz, with whom Pagán, Ortega & Defendini Law
Offices, PSC, was on brief for appellee Víctor Omar Portugués-
Santana.
Diana M. Batlle-Barasorda, with whom Juan J. Casillas-Ayala
and Casillas, Santiago, & Torres, LLC, were on brief for appellee
Jaime-Albizu Lamboy-Riley.
July 29, 2013

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THOMPSON, Circuit Judge. Twice now this case, arising
out of a district court judgment against Rekomdiv International,
Inc. ("Rekomdiv") and Richard Domingo ("Domingo"), comes before us.
The jury had found Rekomdiv and Domingo liable for "dolo en
contrahendo" under Puerto Rico law and awarded the plaintiff,
Víctor Omar Portugués-Santana ("Portugués"), $625,000 in damages.
Our prior decision in this case, Portugués-Santana v. Rekomdiv
Int'l Inc., 657 F.3d 56 (1st Cir. 2011), remanded to the district
court the issue of whether offset of the damages award was
required. On remand, the district court denied any offset of the
damages award and dismissed sua sponte Domingo and Rekomdiv's legal
malpractice suit against their trial counsel, Attorney Jaime-Albizu
Lamboy-Riley ("Lamboy"). Unhappy with the district court's
rulings, Rekomdiv and Domingo appealed.
BACKGROUND
We assume familiarity with our previous decision in
Portugués-Santana, and we recite only those facts most relevant to
the instant appeal.
Portugués sought to open a Victoria's Secret franchise in
Puerto Rico. To do so, he sought assistance from Domingo, a
Rekomdiv employee. Portugués-Santana, 657 F.3d at 58-59. Domingo
recommended that Portugués work with former United States Senator
Birch Bayh, a partner at the law firm of Venable, LLP ("Venable"),
to assist him in establishing a business relationship with
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Victoria's Secret. Id. at 59. Domingo explained that achieving a
Victoria's Secret franchise was a "done deal." Id. But in order
to obtain the franchise, Domingo told Portugués that he had to
retain Venable to assist him. Id. In addition to retaining
Venable, Domingo informed Portugués that he also had to hire
Domingo's firm, Rekomdiv. Id.
At trial, Portugués testified that he relied on Domingo's
representations that obtaining the franchise was a "done deal" when
he entered into retainer agreements with Venable and Rekomdiv. Id.
Portugués paid Venable a $400,000 retainer fee and Rekomdiv a
$100,000 business broker's fee. Id. Portugués made another
$125,000 payment directly to Rekomdiv. Id. Several months after
entering into the retainer agreement with Venable, someone from
Venable emailed Portugués, telling him that a Victoria's Secret
franchise was not available because Victoria's Secret did not use
a franchise or distributor model. See id. Venable assured
Portugués that it would explore other ways to present Portugués as
a worthy business partner for Victoria's Secret in Puerto Rico.
Id. In the end, Portugués got zilch for his money.
Portugués ultimately brought two lawsuits: one against
Rekomdiv and Domingo, alleging breach of contract (the
"Rekomdiv/Portugués" contract) and dolo -- namely, that Domingo's
false representations as to the availability of a franchise
fraudulently induced him to enter into the Rekomdiv/Portugués
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contract -- and the other against Venable and Bayh, for breach of
contract and dolo. Portugués settled with Venable and Bayh for an
undisclosed amount before the suit against Rekomdiv and Domingo
went to trial. Id.
A. The Dolo Case: Trial and Damages
At trial, the jury found in favor of Portugués, finding
Rekomdiv and Domingo liable for dolo and assessing damages in the
amount of $625,000. Id. The next day Portugués moved to alter the
judgment, arguing that in addition to the damages awarded him the
court should also order the contract between him and Rekomdiv null
and void, see P.R. Laws Ann. tit. 31 § 1252, and further order
Rekomdiv and Domingo to return the $225,000 he paid them in
connection with their contract with him, see 31 Laws P.R. Ann. §
3514. In response, Rekomdiv and Domingo requested judgment as a
matter of law under Federal Rule of Civil Procedure 50, a new trial
under Rule 59, and an offset of the damages award by the amount of
the Venable settlement.
The district court denied Portugués's motion to alter the
judgment. While it agreed with Portugués that the jury's finding
of dolo voided the Rekomdiv/Portugués contract, it concluded that
restitution in the amount Portugués paid to Rekomdiv and Venable
was not available under Puerto Rico law. Then the court found that
the $625,000 damages award "clearly represent[ed] the total sums
submitted by the plaintiff to [Rekomdiv and Domingo] in this case,
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as well as to the Venable law firm." The damages award, in the
court's view, "include[d] $225,000 paid to defendants Rekomdiv and
Domingo, plus additional sums invested and paid to Venable . . . .
[Portugués] is not entitled to an additional $225,000 since he
clearly received said sum in the jury verdict."
The district court denied Rekomdiv's and Domingo's
motions for judgment as a matter of law, new trial, and an offset
of the damages award. In denying those motions, the court offered
no explanation as to why the offset request in particular should be
denied. Rekomdiv and Domingo appealed to this court, challenging
the district court's judgment on several grounds. At that time,
they argued inter alia that the district court erred in precluding
them at trial from introducing evidence of the settlement agreement
between Portugués and Venable to support their argument for
reducing the damages award. Portugués-Santana, 657 F.3d at 62. We
concluded that although the district court properly excluded the
settlement agreement at trial, it erred by failing to consider the
agreement when resolving Rekomdiv's and Domingo's post-trial motion
for an offset of the damages award. Id. at 63. We expressed no
opinion at that time as to whether offset was required. Id. at 64.
On remand, the district court considered whether the
damages award should be offset by the amount of the settlement
between Portugués and Venable and ultimately denied the offset
request. In its order, the court noted at the outset that under
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Puerto Rico law, P.R. Laws Ann. tit. 31, § 3514, a finding of dolo
required that restitution be ordered separate from the damages
award, and acknowledged that Portugués had requested such
restitution in his post-trial motion to alter the judgment.
Repeating why it had denied Portugués's request at that time, the
court said the denial was "based on the assumption that the verdict
totaled the sum of the amounts paid by [Portugués] to Domingo and
Rekomdiv ($225,000), as well as to Venable and Bayh ($400,000)."
The court acknowledged that its decision denying Portugués's motion
for restitution was erroneous, see id., but it concluded that since
Portugués had not appealed it, the ruling remained the law of the
case.
In determining that it could not offset the damages award
by the Venable settlement amount - an amount known to the court -
the court explained that Portugués had received damages, a legal
remedy, which is separate and distinct from restitution, an
equitable remedy. In the court's view, the damages award of
$625,000 were "plausible within the parameters" of the $2,000,000
in damages Portugués had requested and the jury could have awarded.
The court noted that Portugués sought $2,000,000 in damages plus
restitution in his separate suit against Venable and that even if
Portugués's suits against Rekomdiv, Domingo, and Venable had been
consolidated into one action capped at $2,000,000 in damages, plus
equitable restitution of $625,000, the $625,000 damages award added
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to the Venable settlement sum "do not even come close to exceeding
$2,000,000." Rekomdiv and Domingo now challenge on appeal the
district court's denial of the offset.
B. The Legal Malpractice Case
While Rekomdiv and Domingo's first appeal was pending
before this court, they filed a legal malpractice suit against
Lamboy, their trial counsel, in April 2011. The complaint alleged
that Lamboy negligently: (1) "failed to maintain a joinder of the
dolo action with the action against Venable and Bayh"; (2) "failed
to undertake third party practice against Venable and Bayh"; (3)
"failed to object promptly and properly to the trial court's use of
the improper jury instruction on the standard of proof for dolo";
(4) "waived, without Domingo's and Rekomdiv's consent, any
objection to the trial court's exclusion of both the Venable
settlement agreement and any mention of the facts and circumstances
surrounding it"; and (5) waived, again without their consent, any
objection to opposing counsel's improper closing argument by
failing to timely object.
In October 2011, the matter was reassigned to the
district court judge who had presided over the dolo case, and the
two cases, being closely related, were consolidated. The court
ordered Rekomdiv and Domingo (plaintiffs in the legal malpractice
suit) to show cause on or before November 10, 2011 as to why their
complaint should not be dismissed in light of our decision in
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Portugués-Santana, 657 F.3d at 63-64, affirming the district court
judgment and remanding for a possible offset of the damages award.
Despite Rekomdiv's and Domingo's timely response to the
show cause order, the district court dismissed the complaint. The
district court found that the crux of the legal malpractice claim
was Lamboy's alleged failure to raise the Venable settlement
agreement for purposes of offsetting damages and that dismissing
the complaint was appropriate in light of the remand on the offset
issue Rekomdiv and Domingo obtained on appeal. The district court
added that Lamboy "acted at all times as a reasonably prudent and
zealous attorney in representing now plaintiffs Domingo and
Rekomdiv." Rekomdiv and Domingo now appeal that dismissal in
addition to the denial of their offset request.
DISCUSSION
A. Offset of Damages
On appeal, Rekomdiv and Domingo first attack the district
court's denial of an offset of the jury's damages award against the
Venable settlement amount. Distilled to its essence, their
argument is that they and Venable are joint tortfeasors, and that,
as a result, Puerto Rico law requires that the jury's damages award
be reduced by the settlement amount. Whether an offset is required
in this case presents a question of law which we review de novo.
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Villarini-García v. Hosp. del Maestro, 112 F.3d 5, 7 (1st Cir.
1997). 1
Even assuming without deciding that Venable, Rekomdiv and
Domingo are joint tortfeasors, Puerto Rico law does not require
that the damages award be reduced by the settlement amount in this
case. Offsetting a damages award by the settlement amount is
rooted in "the principle that no one should or may unjustly enrich
himself by receiving double compensation for the same accident."
Villarini-García, 112 F.3d at 8 (citing Robles v. Superior Court,
85 P.R.R. 640, 647 (1962)). Cases addressing offsets to damages
awards typically arise in negligence and medical malpractice cases,
where two parties contribute to a plaintiff's injury and the award
for total damages against the non-settling party is reduced by the
amount of the settlement agreed to by the plaintiff and the
settling party. See Villarini-García, 112 F.3d at 7-8; Río Mar
Assocs., LP, SE v. UHS of P.R., Inc., 522 F.3d 159, 163 (1st Cir.
2008) (citing Puerto Rico cases). Requiring an offset in those
cases makes sense since the jury has computed and awarded a total
damages amount against a settling as well as a non-settling party,
who both contributed to plaintiff's injury. See Villarini-García,
112 F.3d at 7-8 (offset required where one tortfeasor was
vicariously liable for the actions of another); Rio Mar Assocs.,
1Neither party points us to any authority, nor could we find
any, requiring an offset of damages in a case involving dolo.
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522 F.3d at 163 (finding district court erred in both denying
offset and foreclosing the settling party's attempt to further
pursue offset where hotel was liable for the damages caused not
only by its own negligence but also caused by the foreseeable
aggravation of the guest's injuries due to the treating hospital's
negligence).
The instant case, however, presents no double
compensation concern. The verdict form on its face indicates that
the jury's damages award did not represent the total damages
suffered by Portugués, but instead pertained only to Rekomdiv and
Domingo's dolous conduct. On the verdict form, the jury answered
yes to the following question: "Do you find that any of the
defendants incurred in 'dolo'?" The verdict form asked the jury,
"[i]f yes, indicate against which defendant(s)" and listed each
defendant's name with a space to the left of each name where the
jury could mark an "X". The jury placed an "X" next to "Richard
Domingo" and "Rekomdiv Int'l, Inc.", but not next to Javier Saldana
("Saldana"), a Rekomdiv employee who was also a defendant in the
case. When asked on the verdict form, "[w]hat damages, if any, did
plaintiff sustain as a consequence of defendant's/defendants'
dolo[,]" the jury responded the damages amounted to $625,000.
Rekomdiv and Domingo do not argue that the district
court's jury instructions require reading the verdict form in a way
that asks the jury to assess damages against anyone but them. This
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is not a case where the district court instructed the jury that if
it were to award damages, such award should compensate the
plaintiff for all damages sustained by him as a consequence of all
harmful conduct in the Victoria's Secret franchise debacle. Cf.
Río Mar Assocs., 522 F.3d at 163-64 (finding error in denying
offset where jury's damages award was presumed to have encompassed
all damages caused by the settling and non-settling defendant in
light of the court's jury instructions); Ponce v. Ashford
Presbyterian Cmty. Hosp., 238 F.3d 20, 23-24 (1st Cir. 2001)
(finding reduction of damages by settlement amount appropriate
where jury instructions and the verdict form asked the jury to
determine total damages plaintiffs suffered which included damages
attributable to both settling and non-settling parties). 2 Rekomdiv
and Domingo could have surely requested a total damages
instruction, but did not do so.
Moreover, the fact that Portugués did not receive the
restitution to which he was entitled under the Puerto Rico Civil
2The court's jury instructions made clear that the jury was to
calculate the damages only for the dolous conduct of Domingo,
Rekomdiv and Saldana. For example, the court instructed the jury
that if it found "that any of the defendants -- Mr. Saldana, Mr.
Domingo, or Rekomdiv, Inc. -- acted with dolo, or deceit, these
Defendants are liable for all damages that derived from their dolos
or deceitful conduct," and that if the jury did "not find dolo," it
would proceed to the breach of contract claim, a claim against
Rekomdiv only. The court instructed that a breach of contract
finding meant that Rekomdiv "would be subject to pay Plaintiff for
all losses and damages caused by that breach which may have been
reasonably foreseeable."
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Code only further demonstrates that Portugués has not been
overcompensated. As previously mentioned, after trial Portugués
moved to alter the judgment and argued that in addition to the
jury's damages award, the court should declare the
Rekomdiv/Portugués contract null and void and order that Rekomdiv
and Domingo return the $225,000 that he paid to them in connection
with the Rekomdiv/Portugués contract, citing the relevant
provisions of the Puerto Rico Civil Code, see P.R. Laws. Ann. tit.
31 § 3514. 3 The district court ordered the contract void but
mistakenly concluded that restitution was not available. In its
order denying an offset of damages on remand, it acknowledged its
error, but noted that Portugués had not appealed its earlier
decision (denying restitution post-judgment), and the ruling,
therefore remained the law of the case. The court did not attempt
to revisit its erroneous decision by considering whether any
exceptions to the law of the case doctrine applied to its decision.
See Negron-Almeda v. Santiago, 579 F.3d 45, 51-52 (1st Cir. 2009). 4
3Section 3514 does not provide for relief in the form of
damages. See P.R. Laws Ann. tit. 31 § 3514. Any request for
relief other than declaring the Rekomdiv/Portugués contract void
and returning the money with interest exchanged between the
parties, such as "damages" arising from conduct related to "dolo in
contrahendo" appear to be based on § 5141. See P.R. Laws Ann. tit.
31 § 5141. Because Rekomdiv and Domingo do not challenge whether
damages are available to Portugués, we need not delve into that
issue here.
4Since Portugués does not raise this issue on appeal, we need
not address it.
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The fact that, as the district court clarified, Portugués was
entitled to, but did not receive, restitution weighs against a
finding that Portugués has received double compensation which would
warrant an offset of the damages award. 5 We therefore hold that
the district court committed no error in ruling that no offset was
required.
B. The Legal Malpractice Claim
We now address Rekomdiv's and Domingo's contention that
the district court erred in dismissing sua sponte their legal
malpractice suit against Lamboy. The district court ordered
Rekomdiv and Domingo to show cause why their malpractice complaint
should not be dismissed in light of our decision in Portugués-
Santana, affirming the district court on certain issues and
remanding for consideration of a possible offset of the damages
5We reject any suggestion by Rekomdiv and Domingo that McHann
v. Firestone Tire & Rubber Co., 713 F.2d 161 (5th Cir. 1983)
supports requiring an offset in Portugués's case. In McHann, the
plaintiff sued a tire manufacturer and an auto shop for injuries he
sustained when a tire exploded as he and a mechanic at the shop
were attempting to mount it on a tire rim. Id. at 162-63. The
jury was instructed to determine the total damages to compensate
the plaintiff for the injury he sustained from the explosion -- an
injury he claimed was caused by both the tire manufacturer and the
mechanic's handling of the tire. Id. at 165-66. Given that total
damages instruction, the Fifth Circuit ordered that the jury's
damages award against the tire manufacturer be offset by the
settlement amount paid by the auto shop. Id. at 166. By contrast,
in the present case there was no instruction that the jury's
damages award would serve as full compensation to Portugués for all
of the harm caused by Venable, Rekomdiv, and Domingo. The jury was
asked to decide damages for the harm only Rekomdiv and Domingo
caused.
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award. Presumably finding that their response failed to
demonstrate why dismissal was not warranted, the district court
dismissed the case. As grounds for its decision, the court
explained that the "primary contention of legal malpractice in the
present case" was "Lamboy's alleged failure to raise the Venable
settlement agreement for purposes of offsetting/reduction of
damages," and because Rekomdiv and Domingo obtained a remand on the
offset issue, they no longer had a viable malpractice claim. The
court further noted that Lamboy "acted at all times as a reasonably
prudent and zealous attorney." Absent from the order of dismissal
was any procedural basis for it.
Before us, Rekomdiv and Domingo argue that dismissal was
improper under any possible standard, be it dismissal under Federal
Rule of Civil Procedure 12(b)(6), 12(c) or 56. 6 Lamboy, on the
other hand, says the dismissal should be construed as one under
Rule 12(c) in light of the record in this case (of which we can
take judicial notice) 7 and the fact that the pleadings had
6Under Rule 12(b)(6), a defendant may move to dismiss for
failure to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). A party may move for judgment on the pleadings
after pleadings are closed but early enough not to delay trial"
under Rule 12(c). Fed. R. Civ. P. 12(c). And pursuant to Rule 56,
a court may grant summary judgment where the moving party shows
that there is no genuine dispute of any material fact and that it
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
7When reviewing an order of dismissal, in addition to the
well-pled facts alleged in the complaint and the reasonable
inferences we draw in plaintiff's favor, we may look to matters of
public record and facts susceptible to judicial notice. Haley v.
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concluded by the time dismissal was entered. See Fed. R. Civ. P.
12(c). Because neither party argues the basis for dismissal was
summary judgment and the docket shows the parties engaged in no
discovery, we think the district court dismissed the complaint
pursuant to 12(b)(6) or 12(c). The parties agree that the
appropriate standard of review is de novo regardless of whether the
district court dismissed the complaint under Rule 12(b)(6) or
12(c). Thus, we review de novo the sua sponte dismissal of
Rekomdiv's and Domingo's legal malpractice claim. See Gonzalez-
Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001). 8
A motion for judgment on the pleadings is treated like a
Rule 12(b)(6) motion to dismiss and we employ that standard here.
Pérez–Acevedo v. Rivero–Cubano, 520 F.3d 26, 29 (1st Cir. 2008);
Elena v. Municipality of San Juan, 677 F.3d 1, 5 (1st Cir. 2012).
Thus, we will affirm the dismissal only if, taking all the
complaint's well-pled allegations as true and viewing the other
City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
8The standard for upholding sua sponte dismissals, as opposed
to a run-of-the-mill Rule 12(b)(6) dismissal, is more rigorous in
cases where the party against whom dismissal is entered has no
prior notice of the impending action. Gonzalez-Gonzalez, 257 F.3d
at 36-37 (stating we will uphold a sua sponte dismissal only if the
complaint's allegations, viewed "in the light most favorable to the
plaintiff, are patently meritless and beyond all hope of
redemption."). That standard does not apply here, since the
district court gave Rekomdiv and Domingo one month to show cause as
to why their case should not be dismissed in light of our decision
affirming the district court and remanding for a possible offset of
the damages award.
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facts in the light most favorable to the plaintiff, the complaint
does not allege "enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). We may affirm the dismissal for reasons different than
those relied upon by the district court. Azubukov v. Registrar of
Motor Vehicles, 95 F.3d 1146 (1st Cir. 1996) (per curiam) (table).
To state a plausible legal malpractice claim under Puerto
Rico law, the plaintiff must show: "(1) the existence of an
attorney-client relationship giving rise to a duty; (2) that the
attorney, either by act or omission, breaches it; (3) that said
breach of duty be the proximate cause of the injury to the client;
and (4) that the plaintiff client sustains actual damage or loss."
Colón Prieto v. Géigel, 15 P.R. Offic. Trans. 313, 321 (P.R. 1984).
The "causal nexus element" requires the plaintiff to establish that
he or she "had a valid cause of action that was miscarried by the
attorney's negligence." Id. at 325. In other words, the plaintiff
must show that he would have prevailed in the first suit (the
underlying claim), absent the malpractice, "in order to win the
second [malpractice] one." Id. This rule has been dubbed the "suit
within a suit" requirement. Id.
Rekomdiv and Domingo concede that two of their five
claims of legal malpractice against Lamboy (failure to object to
the admission of the Venable settlement and failure to object to
the jury instruction on the standard of proof) do not state a
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plausible claim in light of our decision in Portugués-Santana.9
That leaves us with the district court's dismissal of the three
remaining allegations of legal malpractice that Lamboy: (1) failed
to "maintain a joinder" of the dolo action with the Venable action;
(2) failed to undertake third party practice against Venable; and
(3) waived, without Rekomdiv's and Domingo's consent, any objection
to opposing counsel's closing argument by failing to timely object.
As we explain further below, the complaint fails to satisfy the
causal nexus requirement that but for the alleged breaches by
Lamboy, Rekomdiv and Domingo would have been successful in the dolo
case.
We turn first to Rekomdiv's and Domingo's allegations
that Lamboy failed to maintain a joinder of the dolo action with
the action against Venable, 10 and that he failed to undertake third
9In their first appeal, Rekomdiv and Domingo argued that the
district court instructed the jury on the wrong standard of proof
for the dolo claim. Portugués-Santana, 657 F.3d at 59-60. They
contended that the correct standard for dolo claims is strong,
clear and convincing evidence, and that the failure to use that
standard in the jury instruction was unfairly prejudicial and
warranted a new trial. Id. at 60. We found that the district
court's instruction, which blended the preponderance standard with
the more stringent strong, clear, and convincing standard, was more
favorable to Rekomdiv and Domingo than the instruction to which
they were entitled. Id. at 61. Thus, we held that any error in
the jury instruction was harmless. Id.
10 As an initial matter, Rekomdiv and Domingo concede that
Lamboy obtained a joinder of the two suits and that the court
vacated the joinder two days later. While they now argue in their
reply brief that Lamboy failed to go beyond that and "pursue to the
limit" joinder of the cases, Rekomdiv and Domingo failed to raise
that argument below nor is such allegation in the complaint.
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party practice against Venable. 11 We observed in Portugués-Santana,
that the evidence presented at the dolo trial "clearly support[ed]
a verdict favorable to Portugués." 756 F.3d at 62. The complaint
contains no allegation (nor do Rekomdiv and Domingo argue) that
Lamboy's failure to further pursue consolidation of the cases or
that failing to file a third party complaint against Venable would
have changed the outcome of the dolo case against them. 12
We see no reason to reach a different conclusion as to
Rekomdiv's and Domingo's third claim that Lamboy waived, without
their consent, any objection to Portugués's attorney's improper
comments at closing argument by failing to timely object. Although
not in the complaint, Rekomdiv's and Domingo's post-trial Rule
50(b) motion pointed to opposing counsel's statements purportedly
seeking sympathy from the jury by referring to the fact that
Portugués's father gave Portugués the money used to pay Rekomdiv
and Domingo, and lost his "lifetime savings" in doing so. It is
undisputed that Lamboy made a post-trial Rule 50(b) motion
protesting opposing counsel's closing argument. But he did not
interpose a timely objection during the argument itself. We know
11 It is undisputed that Lamboy did not file a third party
complaint against Venable. Lamboy claims that he advised Domingo
of this option and that Domingo refused to file the complaint.
12 While Rekomdiv and Domingo also appear to contend that they
could not seek contribution against Venable due to Lamboy's failure
to pursue consolidation or a third party complaint against Venable
in federal court, their complaint alleged nothing of the sort.
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that "when no timely objection is made, claims of improper closing
argument are forfeited, not waived, and thus amenable to review for
plain error." Smith v. Kmart Corp., 177 F.3d 19, 25 (1st Cir.
1999). But the question before us is whether Rekomdiv and Domingo,
as the malpractice plaintiffs, have sufficiently alleged that
Lamboy's failure to timely object satisfies the causation
requirement to state a plausible malpractice claim. We think not.
The malpractice complaint is devoid of any allegation
that Lamboy's failure to object until the filing of the Rule 50(b)
motion caused his clients to lose the dolo case. In addition,
improper closing arguments are typically harmless if the judge
provides a curative instruction that counsel's argument is not
evidence. See Granfield v. CSX Transp., Inc., 597 F.3d 474, 491-92
(1st Cir. 2010); Hatfield-Bermudez v. Aldanondo-Rivera, 496 F.3d
51, 64 (1st Cir. 2007). Here, the district court gave a general
instruction that "arguments and statements by attorneys are not
evidence," and that in closing arguments, "each attorney for each
side has the opportunity to summarize what he understands he has
proven to you through the evidence and what the other party,
perhaps, has not proven to you by the evidence; but those are
arguments of counsel, they are not evidence." Although this was a
general instruction, not a curative one, Rekomdiv and Domingo offer
no reason why the instruction given does not cure any possible
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adverse effects of the allegedly improper statements made by
Portugués's counsel.
In sum, the allegations in the complaint fail to
establish the causation element necessary to make out a plausible
legal malpractice claim under Puerto Rico law. The court therefore
did not err in dismissing sua sponte the legal malpractice suit.
CONCLUSION
We affirm the district court's denial of offset of the
damages award and its sua sponte dismissal of the legal malpractice
suit.
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