April 11, 1994 UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1431
NEWELL PUERTO RICO, LTD., Plaintiff-Appellee,
v.
RUBBERMAID INCORPORATED, Defendant-Appellant.
No. 93-1451 93-1516
NEWELL PUERTO RICO, LTD., Plaintiff-Appellant,
RUBBERMAID INCORPORATED, Defendant-Appellee.
ERRATA SHEET
The opinion of this Court issued on March 31, 1994, is amended as follows:
Page 7, line 8, it should read "Mr. Villamil's testimony" instead of "Mr. Newell's testimony."
Page 11, first line, insert after "1991)" and before the period "(quoting Freeman v. Package Machinery Co., 865 F.2d 1331,
1340 (1st Cir. 1988))."
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
NEWELL PUERTO RICO, LTD.,
Plaintiff-Appellee,
RUBBERMAID INCORPORATED,
Defendant-Appellant.
Nos. 93-1451 93-1516
Plaintiff-Appellant,
Defendant-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Miguel E. Bonilla-Sierra, with whom Carlos T. Gonz lez-
Contreras, Maricarmen Almod var-D az and Gonz lez, Bonilla &
Qui ones-Tridas, were on brief for Rubbermaid Incorporated.
Adri n Mercado, with whom Mercado & Soto, was on brief for
Newell Puerto Rico, Ltd.
March 31, 1994
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TORRUELLA, Circuit Judge. Plaintiff-appellee, Newell
Puerto Rico, Ltd. ("Newell"), brought an action for damages
against Rubbermaid Incorporated ("Rubbermaid"), alleging that
Rubbermaid, without just cause, terminated and impaired the
exclusive distribution agreement between the two parties in
violation of the Puerto Rico Dealers' Act, commonly known as "Law
75." P.R. Laws Ann. tit. X, 278 et seq. (1989 Supp.). The
action was tried before a jury. The jury found that Rubbermaid
terminated the distribution agreement without just cause and
awarded Newell $1,400,000 in damages. Rubbermaid then filed a
motion for a new trial. The district court denied Rubbermaid's
motion and entered judgment against Rubbermaid. Rubbermaid now
appeals the court's denial of its motion for a new trial.
Specifically, Rubbermaid argues that (1) the district court
abused its discretion in admitting certain testimony by one of
Newell's expert witnesses, and (2) the jury's finding on the
issue of just cause was against the clear weight of the evidence.
Newell also filed a motion requesting pre and post-
judgment interest and attorneys' fees. The court granted
Newell's motion for post-judgment interest but denied its motion
for pre-judgment interest and attorneys' fees. Newell appeals
the court's denial of pre-judgment interest and attorneys' fees.
BACKGROUND
We review the evidence and draw inferences therefrom in
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the light most favorable to the verdict winner in this case,
Newell. International Adhesive Coating Co. v. Bolton Emerson
Int'l, Inc., 851 F.2d 540, 542 (1st Cir. 1988).
A. The Distribution Agreement
On May 31, 1968, Rubbermaid entered into an agreement
with Anchor Hocking Interamericana, Ltd. for the exclusive
distribution of the Rubbermaid Houseware Product Line in Puerto
Rico and the United States Virgin Islands ("Distribution
Agreement"). On March 28, 1972, Anchor Hocking Interamericana,
Ltd. assigned and transferred its rights in the Distribution
Agreement to Anchor Hocking Puerto Rico, Ltd. ("Anchor P.R.").1
From July 2, 1972 to July 1, 1987, Anchor P.R., became the
exclusive distributor of Rubbermaid Houseware Products in Puerto
Rico and the Virgin Islands. On July 2, 1987, Newell Company
acquired Anchor Hocking Corporation and its subsidiaries,
including Anchor P.R. and thereafter continued the distribution
of Rubbermaid products in Puerto Rico and the Virgin Islands.
On October 31, 1991, Rubbermaid notified Newell that it
was terminating the Distribution Agreement, effective in ninety
days, because Anchor P.R. had been unable to achieve assigned
sales objectives and because Newell manufactured and distributed
similar products which created a conflict of interest in its
distribution of Rubbermaid products. Rubbermaid then terminated
1 Anchor Hocking Puerto Rico, Ltd. was a wholly owned subsidiary of Anchor Hocking Corporation which was incorporated in Delaware on March 27, 1972, for the purpose of acquiring and selling products in Puerto Rico.
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the Distribution Agreement. The effective date of termination
was February 3, 1992. Anchor P.R. changed its name to Newell
Puerto Rico, Ltd. In February 1992, Newell brought suit against
Rubbermaid, claiming that Rubbermaid's termination of the
Distribution Agreement was unjustified.
B. Expert Witness Testimony
During the course of discovery, in June 1992, Newell's
expert witness on damages, Mr. Jos Villamil, submitted a written
report estimating Newell's damages under Law 75. In July 1992,
Rubbermaid's expert, Dr. El as R. Guti rrez, submitted a report
challenging the accuracy of the valuation estimate presented by
Mr. Villamil, and questioning whether the estimate was prepared
according to acceptable professional standards. Doctor Guti rrez
concluded that major flaws were present in the methods used by
Mr. Villamil to estimate damages, and these flaws had the effect
of producing an upward bias in the estimated value of damages for
the Rubbermaid line of products.2
During his first deposition on August 11, 1992,
Mr. Villamil acknowledged that he inadvertently included the
value of the Rubbermaid Commercial Products Line, which is not at
issue in this case, in his valuation of damages.3 Accordingly,
Mr. Villamil agreed to adjust his estimate and submit an amended
2 Doctor Guti rrez estimated damages, including a goodwill component, to be between $247,686 and $269,431.
3 The Distribution Agreement which is the subject of this lawsuit concerns the Rubbermaid Houseware Products Line. The Rubbermaid Commercial Products Line is a separate and distinct line of products not relevant to this case.
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report reflecting his new evaluation. On August 13, 1992, four
days prior to trial, Mr. Villamil submitted an amended report.4
According to Rubbermaid, this amended report included new
calculations using a methodology and valuation procedure
different from that used in Mr. Villamil's previous report. On
August 13, the court ordered that both experts be deposed anew
and that transcripts of the depositions be filed not later than
August 27, 1992. The Court further determined that it would
appoint an economist to render a neutral expert report. Trial
was rescheduled for December 21, 1992.
Mr. Villamil was deposed again on August 20, 1992.
During this deposition, Mr. Villamil again acknowledged that
corrections should be made to his calculations. On August 27,
1992, Rubbermaid filed a "Motion to Disqualify Plaintiff's Expert
Witness, Exclude Plaintiff's Expert Witness Reports and Request
for Sanctions." The court denied this motion.
On December 8, 1992, the court appointed expert, Ernst
& Young, rendered a report which included a review of the
different reports filed by the expert witnesses for the parties
and an independent calculation of a value or a range of values of
damages for the distribution agreement under Law 75. On January
19, 1993, due to additional information provided by counsel for
Newell, Ernst & Young supplemented the December 8 report. On
4 In his amended report, Mr. Villamil estimated damages, not including goodwill, to be between $1,620,000 and $2,941,000. He estimated goodwill at $1,013,749 and therefore, the total value of the distribution of the Rubbermaid product line in Puerto Rico at between $2,633,749 and $3,954,749.
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February 2, 1993, Ernst & Young submitted a final report.5
During trial, the court heard testimony from Ernst &
Young regarding its report. Mr. Villamil then testified as an
expert for Newell. At trial, Rubbermaid expressly conceded that
Mr. Villamil was qualified as an expert. Mr. Villamil testified
that he believed his role was to evaluate Ernst & Young's report.
Rubbermaid objected to Mr. Villamil's testimony on the grounds of
surprise, arguing that his expressed views were different from
and inconsistent with the opinions rendered in his reports. The
court overruled the objection and permitted Mr. Villamil to
testify.
ADMISSION OF EXPERT TESTIMONY
Rubbermaid challenges the admission at trial of
Mr. Villamil's testimony on grounds of surprise. Federal Rule of
Civil Procedure 60(b)(1); P rez-P rez v. Popular Leasing Rental,
Inc., 993 F.2d 281, 283 (1st Cir. 1993).
At the time of Mr. Villamil's testimony, Rubbermaid's
counsel objected on the ground that Mr. Villamil was presenting
new computations to the jury not contained in his first or second
report. The court overruled Rubbermaid's objection, indicating
that Mr. Villamil was entitled to criticize constructively Ernst
& Young's report. When ruling on Rubbermaid's objection, the
district court stated that Rubbermaid was entitled to "cross-
examine him in light of not only this analysis he is making here
5 The court appointed expert estimated the present value of lost pre-tax profits at $585,951.
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today but in relation to the analysis he has made previously of
the reports you have rendered and which you have a copy and which
were the object of the deposition."
Rubbermaid knew that Mr. Villamil was going to be an
expert witness at trial. Moreover, Rubbermaid was very familiar
with the subject matter upon which he would render his testimony.
Rubbermaid had ample opportunity to cross-examine Mr. Villamil.
Even if Rubbermaid had been surprised by Mr. Villamil's
testimony, the appropriate remedy would have been to ask for a
continuance to allow Rubbermaid to prepare for the presentation
of rebuttal testimony. Szeliga v. General Motors Corp., 728 F.2d
566 (1st Cir. 1984) (the remedy for surprise in the introduction
of evidence is not to seek reversal after an unfavorable jury
verdict, but a request for continuance at the time surprise
occurs). Rubbermaid did not request a continuance, a sidebar or
even a limiting jury instruction. See Smith v. Massachusetts
Institute of Technology, 877 F.2d 1106 (1st Cir. 1989), cert.
denied, 493 U.S. 965 (1989) (courts look with disfavor on parties
who claim surprise but who do not ask for a recess so they may
attempt to counter the opponent testimony).
Rubbermaid also claims that Mr. Villamil's testimony
was inadmissible pursuant to Fed. R. Evid. 702, 703, 705 and 403
and Fed. R. Civ. P. 26(e). We find Rubbermaid's claims to be
without merit.
The admissibility of opinion evidence by experts is a
matter within the discretion of the trial court and its
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determination of admissibility should be sustained unless clearly
erroneous. International Adhesive Coating Company, 851 F.2d at
544. Federal Rules of Evidence 7026 and 7037 "allow an expert
to present scientific or technical testimony in the form of
opinion based on facts or data perceived or made known to the
expert before or at trial." Da Silva v. American Brands, Inc.,
845 F.2d 356, 360 (1st Cir. 1988). Once admitted, Rules 703 and
7058 then "place the full burden of exploration of the facts and
assumptions underlying the testimony of an expert witness
6 Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
7 Federal Rule of Evidence 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
8 Federal Rule of Evidence 705 provides:
The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross- examination.
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squarely on the shoulders of opposing counsel's cross-
examination." International Adhesive Coating Company, 851 F.2d
at 544-45 (quoting Smith v. Ford Motor Co., 626 F.2d 784 (10th
Cir. 1980)).
[I]f in arriving at his opinion the expert has reasonably relied on facts or data before trial, the basis for the opinion need not be disclosed as a condition to admitting testimony. The burden is on opposing counsel through cross-examination to explore and expose any weaknesses in the underpinnings of the expert's opinion. . . . Moreover, the fact that an expert's testimony may be tentative or even speculative does not mean that the testimony must be excluded so long as opposing counsel has an opportunity to attack the expert's credibility. When the factual underpinning of an expert opinion is weak, it is a matter affecting the weight and credibility of the testimony -- a question to be resolved by the jury.
International Adhesive Coating Company, 851 F.2d at 544
(citations omitted).
The district court has broad discretion to decide
whether evidence should be excluded under Rule 403.9 "[O]nly
rarely -- and in extraordinarily compelling circumstances -- will
we, from the vista of a cold appellate record, reverse a district
9 Federal Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
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court's . . . judgment concerning the relative weighing of
probative value and unfair effect." Pinkham v. Burgess, 933 F.2d
1066, 1071 (1st Cir. 1991) (quoting Freeman v. Package Machinery
Co., 865 F. 2d 1331, 1340 (1st Cir. 1988)). The district court's
refusal to exclude Mr. Villamil's testimony under Rule 403 does
not present such an extraordinary circumstance. Rubbermaid
suggests that Mr. Villamil's testimony had the effect of
confusing and misleading the jury and should have been excluded
under Rule 403. We disagree. Mr. Villamil was Newell's only
expert as to damages. Newell was entitled to present witnesses
on the issue of damages. At trial, Rubbermaid conceded Mr.
Villamil's qualifications as an expert in this area. Juries are
often asked to determine complex issues of fact after listening
to expert testimony. Rubbermaid was able to cross-examine both
Mr. Villamil and the Ernst & Young expert as to their testimony
and to present testimony by its own expert witness on the issue
of damages. In light of these factors, we do not believe the
district court abused its discretion in determining that Mr.
Villamil's testimony had substantial probative value that was not
outweighed by unfair prejudice and should not be excluded under
Rule 403.
Rubbermaid's argument that Mr. Villamil's testimony was
inadmissible pursuant to Fed. R. Civ. P. 26(e)10 is equally
10 Federal Rule of Civil Procedure 26(e) states:
Supplementation of Responses. A party
who has responded to a request for discovery with a response that was
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without merit. In essence, Rubbermaid argues that Mr. Villamil's
opinion testimony proffered during trial was different from the
opinions he rendered during the pretrial litigation and that
Newell failed to supplement and amend its discovery responses as
required by Rule 26(e) to reflect those differences.
"[I]n reviewing a contention that answers were not
properly supplemented within the strictures of Rule 26(e), a
court should look to the conduct of the trial, the importance of
the evidence to its proponent, and the ability of the [opposing
complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony.
(2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
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party] to formulate a response." Thibeault v. Square D Co., 960
F.2d 239, 244 (1st Cir. 1992) (internal citation and quotations
omitted). It is not unusual for experts to make changes in their
opinions and revise their analyses and reports frequently in
preparation for, and sometimes even during, a trial. In the
present case, the parties did not stipulate that they would
accept without question the findings of Ernst & Young, the court
appointed expert. Newell was therefore entitled to have its
expert, Mr. Villamil, criticize the Ernst & Young report and
testimony in an attempt to discredit that report and testimony.
Mr. Villamil was Newell's only expert on damages, hence, Mr.
Villamil's testimony was a very important part of Newell's case.
If counsel for Rubbermaid felt ill-prepared to cross-examine Mr.
Villamil when faced with his testimony at trial, counsel's
solution was to request a continuance. Rubbermaid's failure to
do so will not now result in a new trial.
JURY'S FINDING OF JUST CAUSE
A federal judge may grant a new trial where the jury's
verdict is against the clear weight of the evidence. Kearns v.
Keystone Shipping Co., 863 F.2d 177, 181 (1st Cir. 1988) (citing
11 C. Wright & A. Miller, Federal Practice and Procedure 2806
(1973)). A trial court should set aside a jury verdict only to
prevent a miscarriage of justice. Kearns, 863 F.2d at 181. We
review the district court's refusal to grant Rubbermaid's motion
for a new trial for an abuse of discretion. Id. at 179; Fed. R.
Civ. P. 59(a). So long as a reasonable basis exists for the
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jury's verdict, we will not disturb the district court's ruling
on appeal. Grenada Steel Industries, Inc. v. Alabama Oxygen Co.,
695 F.2d 883 (5th Cir. 1983). Mere disagreement with the verdict
will not justify the granting of a new trial. Keeler v. Hewitt,
697 F.2d 8, 11 (1st Cir. 1982). After carefully reviewing the
record below, we find no abuse of discretion in the district
court's decision not to disturb the jury's finding that
Rubbermaid failed to establish just cause for terminating its
contract with Newell.
In its complaint, Newell alleged that Rubbermaid's
termination of the Distribution Agreement was without just cause.
Newell further alleged that actions taken by Rubbermaid in
violation of the Distribution Agreement caused a decline in
Newell's annual sales of Rubbermaid products. According to
Newell, Rubbermaid took actions which were detrimental to the
established relationship and which violated the Distribution
Agreement by:
1. making direct sales to retailers;
2. imposing unreasonable sales quotas on Newell;
3. reclassifying some of its housewares products to
take them out of the Distribution Agreement; and
4. delaying and refusing to service orders placed by
Newell.
The Puerto Rico Dealer's Contract Act, P.R. Laws Ann.
tit. 10, 278-278d (1976), known as "Law 75," prohibits a
supplier from unilaterally terminating a distribution agreement
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with a dealer or refusing to renew it on its normal expiration
except for "just cause." 10 L.P.R.A. 278a. Law 75 was enacted
to prevent suppliers from terminating dealers in Puerto Rico once
these dealers had invested in the business to create and build a
profitable market for the suppliers' products. L neas A reas
Costarricenses, S.A. v. Caribbean General, Inc., 682 F. Supp. 117
(D. P.R. 1988) (citing Warner Lambert v. Tribunal Superior, 101
D.P.R. 378, 101 P.R.R. 527 (1973)).
As noted, Law 75 permits a supplier to terminate a
distribution agreement for just cause. Section 278(d) of the Act
defines "just cause" as follows:
nonperformance of any of the essential obligations of the dealer's contract on the part of the dealer, or any action or omission on his part that adversely and substantially affects the interest of the principal or grantor in promoting the marketing or distribution of the merchandise or service.
By its terms, Law 75 sets forth a variety of
circumstances under which, once a dealer has shown that the
supplier terminated its contract, the supplier bears the burden
of showing just cause for the termination. Section 278a-1 of the
Act, which bears the heading, Just cause for termination;
exceptions; presumptions, sheds light on the mechanics of the
just cause exception. Section 278a-1(a) of the Act establishes
that certain violations or nonperformance by a dealer of any
provision included in the dealer's contract "shall not be
considered as being just cause unless the principal or grantor
shows that such nonperformance may affect, or has truly and
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effectively affected the interests of such principal or grantor
in an adverse or substantial manner in the development of the
market, distribution of the merchandise or rendering of services"
(emphasis added). Hence, under this section, in order to show
just cause, the supplier bears the burden of showing that the
dealer's violations or nonperformance of the contract adversely
affected the suppliers interests.
It is uncontested that Rubbermaid unilaterally
terminated the Distribution Agreement. Rubbermaid sought to show
just cause under Law 75 by arguing that termination was justified
because Newell failed to achieve assigned sales objectives and
experienced a decline in sales of Rubbermaid products, and that
Newell's sale of other product lines, not related to Rubbermaid,
created a conflict of interest detrimental to the Distribution
Agreement between Newell and Rubbermaid and therefore, adversely
affected Rubbermaid's interests. Newell presented evidence to
counter these allegations from which the jury could reasonably
conclude that Rubbermaid did not have just cause to terminate the
Distribution Agreement. Newell's evidence included testimony to
the effect that any decline in Rubbermaid sales by Newell was
caused by Rubbermaid's own actions in violation of the
Distribution Agreement. In particular, Newell presented evidence
indicating that Rubbermaid was selling products directly to
Pitusa (a retail store in Puerto Rico) at the same price it sold
to Newell, undercutting the ability of Newell to compete on the
Puerto Rican market for sales of Rubbermaid products. Newell
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also presented evidence indicating that plastic houseware
products manufactured by Newell which, according to Rubbermaid,
created a conflict of interest with Rubbermaid products, had been
manufactured by Anchor P.R. since 1968 and competed with
Rubbermaid products for the entire span of the contract.
Newell's evidence indicated that there was no new competition
introduced by the Newell acquisition of Anchor P.R. or any other
conflict in interest that would justify termination of the
Distribution Agreement.
Newell also presented evidence to the effect that its
assigned sales objectives did not adjust to the realities of the
Puerto Rican market. This evidence included testimony to the
effect that the sales objectives were unreasonable. Newell also
presented evidence to the jury in the form of an analysis of its
sales activities from 1986 to 1990. The analysis purported to
show that Newell's sales were adversely affected by several
factors, including Hurricane Hugo and direct sales by Rubbermaid,
but that overall, the company was successfully selling Rubbermaid
products.
Section 278a-1(c) establishes that where a dealer
violates a provision in the agreement fixing rules of conduct or
setting distribution quotas or goals because it does not adjust
to the realities of the Puerto Rican market at the time, the
violation will not be deemed just cause and "[t]he burden of
proof to show the reasonableness of the rule of conduct or of the
quota or goal fixed shall rest on the principal or grantor."
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Under this section, once Newell presented evidence showing that
the assigned sales objectives did not adjust to the realities of
the Puerto Rican market, it was Rubbermaid's burden to show the
reasonableness of the sales objectives. In finding against
Rubbermaid, the jury concluded that Rubbermaid did not meet its
burden. Judging the credibility of the witnesses and weighing
the evidence are within the exclusive province of the jury.
United States v. Garc a, 995 F.2d 556, 561 (5th Cir. 1993);
Lessee of Ewing v. Burnet, 36 U.S. 41 (1837). We will not
substitute our judgment for that of the jury in its evidentiary
findings. After reviewing the record, we conclude that the
jury's verdict is not against the clear weight of the evidence.
ATTORNEYS' FEES & PRE-JUDGMENT INTEREST
Newell appeals the district court's denial of its
motion for attorneys' fees and pre-judgment interest. Puerto
Rico Rule 44.1(d) on attorneys' fees and 44.3(b) on pre-judgment
interest are rules of decision that should be applied by the
Federal Court sitting in diversity. De Le n L pez v. Corporaci n
Insular de Seguros, 931 F.2d 116, 126 (1st Cir. 1991); Pan
American World Airways, Inc. v. Ramos, 357 F.2d 341, 342 (1st
Cir. 1966) (Puerto Rico Rules of Civil Procedure 44.1(d) and
44.3(b) are a matter of substantive law to be applied by the
federal court sitting in diversity). The decision to award such
fees is within the discretion of the district court and we will
only disturb its ruling where there has been an abuse of that
discretion. De Le n L pez, 931 F.2d at 126-27.
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Under Rule 44.3(b) and 44.1(d) of the Puerto Rico Rules
of Civil Procedure, imposition of pre-judgment interest and
attorney's fees on the non-prevailing party is mandatory where
the party was obstinate and stubbornly litigious. Rule 44.3(b)
on pre-judgment interest provides:
(b) Except when the defendant is the Commonwealth of Puerto Rico, its municipalities, agencies, instrumentalities or officers acting in their official capacity, the court will also impose on the party that has acted rashly the payment of interest at the rate fixed by the Board by virtue of the previous subsection which is in effect at the moment the judgment is pronounced, from the time the cause of action arises in every case of collection of money and from the time the claim is filed in actions for damages until the date judgment is pronounced, to be computed on the amount of the judgment. The interest rate shall be stated in the judgment.
P.R. Laws Ann. tit. 32, App. III, Rule 44.3(b) (1989 Supp.).
Rule 44.1(d) on attorney's fees states:
In the event any party or its lawyer has acted obstinately or frivolously, the court shall, in its judgment, impose on such person the payment of a sum for attorney's fees which the court decides corresponds to such conduct.
P.R. Laws Ann. tit. 32, App. III, Rule 44.1(d) (1989 Supp.).
A party is obstinate under Rule 44.1(d) if it engages
in actions which (a) make necessary litigation which could have
been avoided, (b) prolongs the litigation unnecessarily, or (c)
requires the other party to incur expenses in the pursuit of
avoidable tasks. Fern ndez Mari o v. San Juan Cement Co. Inc.,
118 D.P.R. 713, 718-19 (1987); De Le n L pez, 931 F.2d at 126.
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In ruling on Rubbermaid's motion for attorneys' fees
and pre-judgment interest the district court stated:
We are not convinced that the defendant, Rubbermaid, Inc., acted rashly or contumaciously in defending from this Law 75 Dealer's Act suit. A reasonable reviewer of this record may conclude that the defendant's case presented plausible positions that merited contract termination. The fact that the jury elected otherwise is not indicative of contumacious conduct on the part of the defendant.
After reviewing the record, we agree with the district
court in its conclusion that Rubbermaid did not act rashly or
contumaciously in defending this suit. Rubbermaid presented
evidence in support of its defense, indicating that Newell
experienced a decline in sales of Rubbermaid products and failed
to meet assigned sales objectives. Rubbermaid also presented
evidence to the effect that Newell's policies as to the pricing
of Rubbermaid products and Newell's sale of houseware plastics
that were not manufactured by Rubbermaid adversely affected
Rubbermaid's interests. The district court did not abuse its
discretion in denying Newell's motion for attorneys' fees and
pre-judgment interest.
Affirmed.
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