Cioffi v. Gilbert Enterprises, Inc., et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [14-1002]

Case: 14-1002

Document: 00116749633

Page: 1

Date Filed: 10/08/2014

Entry ID: 5858654

United States Court of Appeals
For the First Circuit

No. 14-1002
ALISON CIOFFI,
Plaintiff, Appellant,
v.
GILBERT ENTERPRISES, INC.
d/b/a CLUB FANTASIES,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]

Before
Torruella, Selya and Thompson,
Circuit Judges.

Neil E. Roberts and Law Office of Neil E. Roberts on brief for
appellant.
Timothy J. Duggan, Jodi E. Barrett, and Duggan, Gianacoplos &
Mahoney, LLC on brief for appellee.

October 8, 2014

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SELYA, Circuit Judge. This is a case where the plaintiff
attempts, in effect, to appeal from an order that the district
court never made.

Not surprisingly, her appeal goes nowhere.

We start by rehearsing the bare facts and travel of the
case.

Plaintiff-appellant Alison Cioffi is an exotic dancer who

resides in Woburn, Massachusetts.

She applied for and accepted

employment with Club Fantasies (the Club), an adult entertainment
venue

(dysphemistically

Providence,

Rhode

Enterprises, Inc.

called

Island,

a
by

"strip

club")

operated

defendant-appellee

in

Gilbert

She performed at the Club without apparent

incident until mid-April, 2009.

She alleges that, on a date that

is in dispute,1 a fellow dancer assaulted her and inflicted severe
injuries.
On April 19, 2012, the plaintiff sued the Club in a
Massachusetts state court.2 She alleged that her injuries resulted
from the Club's failure to furnish her with a safe and secure
workplace.
The
corporation.

Club

is

owned

and

operated

by

a

Rhode

Island

Alleging diversity of citizenship and the existence

1

The plaintiff's complaint alleged that the assault occurred
on April 19, 2009. The Club asserts that the assault took place on
April 18, and the police report appears to confirm the Club's
assertion.
While this one-day discrepancy is relevant to the
Club's limitations defense, see text infra, we need not resolve it.
2

The plaintiff named her assailant as a codefendant. For
aught that appears, the assailant was never served. Consequently,
we treat the Club as the sole defendant.
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of a controversy in the requisite amount, the Club removed the
action to the United States District Court for the District of
Massachusetts. See 28 U.S.C. §§ 1332(a), 1441. In due course, the
Club moved to dismiss the action for, inter alia, improper venue
See Fed. R. Civ. P.

and want of in personam jurisdiction.
12(b)(2)-(3).

The plaintiff opposed the motion.

After briefing

and argument, the district court (Saylor, J.) concluded that the
Club had insufficient contacts with Massachusetts to warrant the
exercise of personal jurisdiction.

See Cioffi v. Gilbert Enters.,

Inc., 971 F. Supp. 2d 129, 138 (D. Mass. 2012) (order on motion to
dismiss).

Instead of dismissing the case Judge Saylor asked the

parties to brief the question of whether dismissal or transfer of
venue would be the more condign remedy.
The

plaintiff

filed

a

See id.

motion

for

reconsideration,

beseeching the district court to rethink its conclusion on personal
jurisdiction or, in the alternative, to transfer the case. For its
part, the Club exhorted the district court to dismiss the suit
outright.

After mulling these importunings, Judge Saylor invoked

28 U.S.C. § 1406(a) and transferred the case to the District of
Rhode Island — a district in which the suit unarguably could have
been brought.3

3

The record is tenebrous as to why Judge Saylor invoked 28
U.S.C. § 1406(a) rather than 28 U.S.C. § 1404(a). Because neither
party pursues this question, we let it pass.
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At this point, the plaintiff improvidently attempted to
appeal. Her notice of appeal, plainly interlocutory, was dismissed
for want of diligent prosecution after the plaintiff's counsel
failed to respond to our show-cause order questioning appellate
jurisdiction.

See Cioffi v. Gilbert Enters., Inc., No. 13-1184

(1st Cir. Apr. 3, 2013) (unpublished order); see also 1st Cir. R.
3.0(b).
Once the case was docketed in the District of Rhode
Island, the Club again moved to dismiss.

Its motion posited that

the plaintiff's complaint failed to state a claim upon which relief
could be granted because suit had been commenced outside the
applicable limitations period.

See Fed. R. Civ. P. 12(b)(6).

Inexplicably, the plaintiff did not respond to this motion.

After

the time for filing an opposition expired, see D.R.I. R. 7(b), the
district court (McConnell, J.) summarily granted the motion and
dismissed the action.

This appeal followed.

The plaintiff frames the issue on appeal as "whether
[she] set forth sufficient facts in her jurisdictional proffer to
establish . . . minimum contacts . . . over the [Club]" in
Massachusetts. Appellant's Br. at 2. By framing the issue in this
way, she attempts to challenge Judge Saylor's determination that
the Massachusetts district court lacked personal jurisdiction over
the Club.

But appellate courts do not review issues as such.

California v. Rooney, 483 U.S. 307, 311 (1987).

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See

A district court

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speaks through orders and judgments, and only those decisions are
reviewable. See In re Shkolnikov, 470 F.3d 22, 24 (1st Cir. 2006);
Downey v. State Farm Fire & Cas. Co., 266 F.3d 675, 682 (7th Cir.
2001).

This is of decretory significance because Judge Saylor's

jurisdictional conclusion never ripened into an order of dismissal
but, rather, formed a part of his rationale for transferring the
action to Rhode Island under 28 U.S.C. § 1406(a).

See Cioffi v.

Gilbert Enters., Inc., 971 F. Supp. 2d 129, 138-39 (D. Mass. 2013)
(order denying reconsideration).
A within-circuit transfer order under 28 U.S.C. § 1406(a)
is appealable after final judgment in the case.4

See, e.g., Dubin

v. United States, 380 F.2d 813, 814 (5th Cir. 1967); see also N.Y.
Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112
(2d Cir. 2010) (reviewing denial of transfer pursuant to 28 U.S.C.
§ 1404(a) after entry of final judgment); Cianbro Corp. v. CurranLavoie, Inc., 814 F.2d 7, 11 (1st Cir. 1987) (reviewing, after
final

judgment,

transfer case).

separate

orders

transferring

and

refusing

to

Here, however, the plaintiff does not take aim at

the transfer order.

The statute on which the transfer order is

predicated provides: "The district court of a district in which is
filed a case laying venue in the wrong division or district shall

4

We limit this holding to transfers that take place within a
single circuit. This case does not present the complications posed
by out-of-circuit transfers. See Posnanski v. Gibney, 421 F.3d 977
(9th Cir. 2005); Reyes v. Supervisor of DEA, 834 F.2d 1093, 1095
(1st Cir. 1987).
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dismiss, or if it be in the interest of justice, transfer such case
to any district or division in which it could have been brought."
28 U.S.C. § 1406(a).

The plaintiff, though, has not argued that

the district court misapplied the statute.
Moreover,

where

such

a

transfer

order

is

appealed,

appellate review is for abuse of discretion. See Cianbro, 814 F.2d
at 11.

Yet, the plaintiff has not argued that Judge Saylor abused

his discretion.

Nor has she tried to explain why the transfer

order runs counter to the interest of justice.

Indeed, she has

scarcely mentioned the subject of venue in her appellate brief.
To be sure, the plaintiff could have appealed Judge
See, e.g., Vega-Encarnación v.

McConnell's order of dismissal.

Babilonia, 344 F.3d 37, 41 (1st Cir. 2003) (stating that "[i]f the
merits are at issue, the mere fact that a motion to dismiss is
unopposed does not relieve the district court of the obligation to
examine

the

complaint

itself

to

see

whether

it

is

formally

sufficient to state a claim"). That order, though, was premised on
the Club's unopposed motion, which contended that the plaintiff had
sued too late.

See R.I. Gen. Laws § 9-1-14(b) (limning three-year

limitations period for personal injury actions).

But what the

plaintiff could have done and what she actually did are two
different things: she has not mounted any semblance of a challenge
to Judge McConnell's dismissal order.

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The crux of the matter is that the plaintiff's briefing
all

but

ignores

limitations.

both

section

1406(a)

and

the

statute

of

Instead, she argues the case as if Judge Saylor had

dismissed her action on jurisdictional grounds.

This sets up a

straw man — and the plaintiff's effort to reinvent the record will
not wash.
The short of it is that there are only two appealable
orders here: Judge Saylor's transfer order and Judge McConnell's
dismissal order. To challenge either one, the plaintiff would have
to present, at a minimum, some developed argumentation addressed to
the relevant order.
(1st

Cir.

2006)

See Casillas-Díaz v. Palau, 463 F.3d 77, 83

(stating

that

litigants

have

an

"unflagging

obligation to spell out their contentions squarely and distinctly,
or else forever hold [their] peace" (internal quotation marks
omitted)); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("It is not enough merely to mention a possible argument in the
most

skeletal

way,

leaving

the

court

to

do

counsel's

work

. . . ."); see also Shelby v. Superperformance Int'l, Inc., 435
F.3d 42, 45 (1st Cir. 2006) ("A party's failure to designate a
particular order for appeal ordinarily defeats a later attempt to
dispute that order in the court of appeals.").

When a party fails

to develop even a ghost of an argument as to why a particular order
is erroneous, any potential challenge to that order is ordinarily
deemed waived.

See Borges ex rel. S.M.B.W. v. Serrano-Isern, 605

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F.3d 1, 6 (1st Cir. 2010); Zannino, 895 F.2d at 17.

Entry ID: 5858654

We have no

occasion to depart today from this prophylactic rule.
We add a coda.

While we might have the authority to

stretch a point and read the plaintiff's frontal assault on the
district court's jurisdictional views as an indirect attack on the
transfer order, we are reluctant to do so.

After all, it is not

our place to do a party's homework for her.

An appellate court is

entitled to have litigants present arguments face up and squarely,
see Moses v. Mele, 711 F.3d 213, 217 (1st Cir. 2013), and the
plaintiff has not done so here.
If more were needed — and we doubt that it is — we see no
injustice in holding the plaintiff to the easily satisfied standard
requiring

the

presentation

of

developed

argumentation.

The

plaintiff could have argued that the transfer order constituted an
abuse of discretion.

Instead, her notice of appeal expressly

disclaimed an intent to appeal the order to the extent it did
anything

more

than

reaffirm

Judge

Saylor's

conclusion

about

jurisdiction.
In all events, showing an abuse of discretion would have
been a heavy lift.

Rhode Island is clearly the center of gravity

of this case: the Club is located in Rhode Island and its owner is
a Rhode Island corporation that does not operate elsewhere, the
plaintiff's employment was performed entirely in Rhode Island, the
alleged assault occurred there, and the parties agree that the

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substantive law of Rhode Island governs the putative cause of
action.

Given this landscape, there is at least a substantial

question as to whether a Massachusetts court could constitutionally
exercise in personam jurisdiction over the Club.

See generally

Hanson v. Denckla, 357 U.S. 235, 253 (1958) (discussing "purposeful
availment" requirement); Int'l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945) (discussing "minimum contacts" requirement).

We

think this mise en scene makes it extremely difficult to say that
Judge Saylor abused his broad discretion in transferring the
action.
Strategic choices have consequences.

Where, as here, a

party chooses to cast its lot with an argument that goes nowhere,
it is not the proper function of a reviewing court, through some
thaumaturgical feat of prestidigitation, to transmogrify that
argument into one that the party might more rewardingly have made.
We need go no further. For the reasons elucidated above,
the judgment is

Affirmed.

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