source: Caselaw Access Project

author: LIPEZ, Circuit Judge.

license: Public Domain

text:
    Apurv GUPTA, M.D.; Victor Munger, Plaintiffs, Appellants, v. QUINCY MEDICAL CENTER, a Steward Family Hospital, Inc., Defendant, Appellee.
    No. 15-1183
    United States Court of Appeals, First Circuit.
    June 2, 2017

      Leah L. Miraldi, with whom Bruce W. Gladstone, Cameron & Mittleman LLP, Providence, RI, Charles R. Bennett, Jr., and Murphy & King, P.C., Boston, MA, were on brief, for appellants.
    Jonathan W. Young, with whom Scott R. Magee and Locke Lord LLP, Boston, MA, were on brief, for appellee.
    Before HOWARD, Chief Judge, SOUTER, Associate Justice, LIPEZ, Circuit Judge.

       The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   LIPEZ, Circuit Judge.

This appeal involves the bankruptcy of Quincy Medical Center, Inc., QMC ED Physicians, Inc. and Quincy Physician Corporation (“Debtors”). Apurv Gupta and Victor Munger (“Appellants”), former senior executives of Debtors, appeal the district court’s ruling that the bankruptcy court lacked subject matter jurisdiction over their post-confirmation claims for severance payments against the purchaser of Debtors’ assets. Because we agree that the bankruptcy court had no jurisdiction over Gupta’s and Munger’s claims, we affirm.

I.

The facts pertinent to this appeal—none of which are disputed—are fully set forth in the opinions of the bankruptcy court and the district court. See Quincy Med. Ctr. v. Gupta, Nos. 12-cv-40128-RWZ and 12-ev-40131-RWZ, 2015 WL 58633, at *1-2 (D. Mass. Jan. 5, 2015); In re Quincy Med. Ctr., Inc., 479 B.R. 229, 231-33 (Bankr. D. Mass. 2012); In re Quincy Medi Ctr., Inc., 466 B.R. 26, 27-32 (Bankr. D. Mass. 2012). We assume familiarity with the decisions below and discuss only the pertinent facts here.

Gupta and Munger were senior executives at Quincy Medical Center, a hospital operated by Debtors in Quincy, Massachusetts. On June 30, 2011, Debtors signed an Asset Purchase Agreement (the “APA”) whereby they agreed to sell substantially all of their assets to Quincy Medical Center, a Steward Family Hospital, Inc. 1/k/a Steward Medical Holdings Subsidiary Five, Inc. (“Steward”). One day later, on July 1, 2011, Debtors filed voluntary petitions under Chapter 11 of the Bankruptcy Code, and a motion (the “Sale Motion”) under sections 363 and 365 of the Bankruptcy Code seeking bankruptcy court approval of the APA. See 11 U.S.C. §§ 363, 365.

Sections 5 and 9 of the APA, which deal with the continued employment of Debtors’ former employees, are relevant to Appellants’ claims. Specifically, section 9.1 provides:

Not later than ten (10) Business Days prior to the Closing, [Steward] shall offer employment by [Steward] to each of the Employees who remain employed by [Debtors] as of a recent date, ... such employment to commence immediately following the Closing.... Such individuals who accept such offer of employment are hereinafter referred to as the “Transferred Employees.”

Section 9.2 further provides that Steward is obligated to pay each transferred employee “base wage and salary levels provided to such Employees immediately pri- or to the Closing” for no less than three months after the closing date. Additionally, section 5.14(c) of the APA provides that “upon [Steward’s] termination of the employment ... of any employees ... of [Debtors] at or following the Closing, [Steward] shall be liable to any of such persons for severance or retention pay or any other payments otherwise due them as employees ... for [Debtors].”

On September 26, 2011, the bankruptcy court issued an order (the “Sale Order”) approving the APA as requested in the Sale Motion. The sale closed on October 1, 2011. Six days later, Debtors filed a proposed Chapter 11 plan of reorganization (the “Plan”). The bankruptcy court thereafter confirmed the Plan (the “Confirmation Order”).

The Sale Order and the Plan each contain provisions regarding the retention of jurisdiction by the bankruptcy court over any disputes arising under them. The Sale Order provides:

It is necessary and appropriate, in order to ensure the validity of the sale of the Assets to Steward and to ensure compliance with this Order, for this Court to retain jurisdiction to: (a) interpret and enforce the provisions of the APA, the Assigned Agreements, the Sale Motion and this Order; (b) protect Steward and any of the Assets against any Lien or Claim; (c) resolve any disputes arising under or relating to the APA, the Assigned Agreements, the Sale Motion and this Order; and (d) determine the validity, extent and priority of asserted pre-Closing Liens or Claims on, and the disposition of the gross proceeds of sale of, the Assets.

Similarly, the Plan provides that

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, on and after the Effective Date, the Bankruptcy Court shall, to the maximum extent permitted by applicable law, retain exclusive jurisdiction over all matters arising out of, or related to, the Chapter 11 Cases and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to: ...
15. Enter and enforce any order for the sale of property pursuant to sections 363, 1123, or 1146(a) of the Bankruptcy Code; ....
29. Enforce all orders previously entered by the Bankruptcy Court; ....

The Confirmation Order also incorporates the retention of jurisdiction provision from the Plan.

On October 7, 2011, Appellants received letters from Debtors stating that their employment was terminated effective October 1, i.e., the day the sale closed. Appellants subsequently sought severance pay from Debtors by filing motions in the bankruptcy court for allowance of administrative expenses against Debtors. The bankruptcy court denied administrative expense status to both claims. However, the court held that Appellants’ motions should be treated as “seeking relief in the alternative ... for an order directing Steward to pay the claims.” The court found that it had subject matter jurisdiction to hear the claims against Steward pursuant to the retention of jurisdiction provisions of the Sale Order and the court’s authority to interpret and enforce its own prior orders. The bankruptcy court offered Steward an opportunity to respond, and Steward filed its objections.

Following a non-evidentiary hearing at which Gupta, Munger, and Steward were heard, the bankruptcy court found Steward liable to Appellants under the APA for their severance pay. Steward appealed to the district court, which concluded that the bankruptcy court lacked subject matter jurisdiction over Appellants’ claims. Specifically, the district court found that Appellants’ claims against Steward fell outside the bankruptcy court’s statutorily granted jurisdiction and that the retention of jurisdiction provision relied upon by the bankruptcy court did not change this analysis. The district court therefore vacated the judgments against Steward and remanded with instructions to dismiss Appellants’ claims. This appeal followed.

II.

A. Jurisdictional Principles

Appellants contend that the district court erred in concluding that their severance claims against Steward fell outside the bankruptcy court’s statutorily granted jurisdiction. Thus, we first must examine the statutory scheme establishing the bankruptcy court’s jurisdiction, understanding that the “jurisdiction of the bankruptcy courts, like that of other federal’ courts, is grounded in, and limited by, statute.” Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). We examine the bankruptcy court’s findings of fact for clear error and afford de novo review to its conclusions of law. See Razzaboni v. Schifano (In re Schifano), 378 F.3d 60, 66 (1st Cir. 2004).

The general grant of bankruptcy jurisdiction is found in 28 U.S.C. § 1334, which establishes two main categories of bankruptcy matters over which the,district courts have jurisdiction: “cases under title 11,” 28 U.S.C. § 1334(a), and “proceedings arising' under title 11, or arising in or related to cases under title 11,” 28 U.S.C. § 1334(b). See also Middlesex Power Equip. & Marine, Inc. v. Town of Tyngsborough, Mass. (In re Middlesex Power Equip. & Marine, Inc.), 292 F.3d 61, 66 (1st Cir. 2002). “[C]ases under title 11” refers only to the bankruptcy petition itself, and it is the umbrella under which all of the proceedings that follow the filing of a bankruptcy petition take place. Id. In turn, 28 U.S.C. § 157 permits the district courts to refer to bankruptcy courts all “proceedings arising under title 11 or arising in or related to cases under title 11.” This broad jurisdictional grant allows the bankruptcy courts to “deal efficiently and expeditiously with all matters connected with the bankruptcy estate.” Celotex, 514 U.S. at 308, 115 S.Ct. 1493 (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)).

Hence, in order for Appellants’ severance claims to fall within 28 U.S.C. § 1334’s statutory grant of jurisdiction, the claims must “arise under,” “arise in,” or “relate to” a case under title 11. We have observed that the boundaries between these types of proceedings are not always easy to distinguish from each other. See In re Middlesex Power Equip. & Marine, Inc., 292 F.3d at 68 (noting that “[t]he dividing line is unclear between proceedings that ‘arise under’ as opposed to ‘arise in’ and as opposed to ‘relate to’ title 11. The statute itself provides no definitions.”). Nonetheless, each term has a particular scope that matters for the jurisdictional analysis here.

The “arising under” language of § 1334(b) is “analogous to the ‘arising under’ language in 28 U.S.C. § 1331.” In re Middlesex Power Equip. & Marine, Inc., 292 F.3d at 68 (comparing “arising under” jurisdiction to federal question jurisdiction). In other words, proceedings “aris[e] under title 11” when the Bankruptcy Code itself creates the cause of action. See Stoe v. Flaherty, 436 F.3d 209, 217 (3d Cir. 2006) (noting that “arising under” jurisdiction is limited to proceedings where “the Bankruptcy Code creates the cause of action or provides the substantive right invoked”); Wood v. Wood (In re Wood), 825 F.2d 90, 96 (5th Cir. 1987) (“Congress used the phrase ‘arising under title 11’ to describe those proceedings that involve a cause of action created or determined by a statutory provision of title 11.”).

We have defined “arising in” proceedings generally as “those that are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy.” In re Middlesex Power Equip. & Marine, Inc., 292 F.3d at 68; see also Stoe, 436 F.3d at 218 (“[C]laims that ‘arise in’ a bankruptcy case are claims that by their nature, not their particular factual circumstance, could only arise in the context of a bankruptcy case.”); In re Toledo, 170 F.3d at 1345 (stating that proceedings “arising in” bankruptcy are “matters that could arise only in bankruptcy”). “Arising in” proceedings include such things as administrative matters, orders to turn over property of the estate, and determinations of the validity, extent, or priority of liens. See Collier on Bankruptcy ¶ 3.01[3][e][iv] (Alan N. Resnick & Henry J. Sommer eds., 16th ed., 2016) [hereinafter Collier] (noting that “administrative matters” such as allowance and disallowance of claims, orders in respect to obtaining credit, determining the dischargeability of debts, discharges, confirmation of plans, orders permitting the assumption or rejection of contracts, are the principal constituents of “arising in” jurisdiction, and that “[i]n none of these instances is there a ‘cause of action’ created by statute, nor could any of the matters illustrated have been the subject of a lawsuit absent the filing of a bankruptcy case”).

By contrast, “related to” proceedings are those “which ‘potentially have some effect on the bankruptcy estate, such as altering debtor’s rights, liabilities, options, or freedom of action, or otherwise have an impact upon the handling and administration of the bankrupt estate.’ ” In re Middlesex Power Equip. & Marine, Inc., 292 F.3d at 68 (quoting In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir. 1991)); see also Celotex, 514 U.S. at 308, 115 S.Ct. 1493 (“The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.” (emphasis omitted) (citing Pacor, 743 F.2d at 994)). Although “related to” jurisdiction “cannot be limitless,” Celotex, 514 U.S. at 308, 115 S.Ct. 1493, it is nonetheless “quite broad.” Boston Reg’l Med. Ctr., Inc. v. Reynolds (In re Boston Reg’l Med. Ctr., Inc.), 410 F.3d 100, 105 (1st Cir. 2005) (noting that Congress deliberately allowed the cession of wide-ranging “related to” jurisdiction to the bankruptcy courts “to enable them to deal efficiently and effectively with the entire universe of matters connected with bankruptcy estates”).

B. Application of the Jurisdictional Principles

The bankruptcy court never determined whether it had “arising under,” “arising in,” or “related to” jurisdiction over Appellants’ claims. Instead, the court concluded that it had jurisdiction solely on the basis of the retention of jurisdiction provisions in the Sale Order and the Plan. This approach was erroneous.

Bankruptcy courts—like all federal courts—may retain jurisdiction to interpret and enforce their prior orders. See Travelers Indem. Co. v. Bailey, 557 U.S. 137, 151, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009) (Souter, J.) (noting that bankruptcy courts “plainly ha[ve] jurisdiction to interpret and enforce ... prior orders”). However, a bankruptcy court may not “retain” jurisdiction it never had—i.e., over matters that do not fall within § 1334’s statutory grant. See Celotex, 514 U.S. at 307, 115 S.Ct. 1493. A retention of jurisdiction provision may not alter the fact that “the source of the bankruptcy court’s subject matter jurisdiction is neither the Bankruptcy Code nor the express terms of the Plan. The source of the bankruptcy court’s jurisdiction is 28 U.S.C. §§ 1334 and 157.” U.S. Brass Corp. v. Travelers, Ins. Group (In re U.S. Brass Carp.), 301 F.3d 296, 303 (5th Cir. 2002).

Hence, despite the routine inclusion of retention-of-jurisdietion provisions in Chapter 11 plans, see Collier ¶ 1123.02, they may be given effect only if there is jurisdiction under 28 U.S.C. § 1334. See Valley Historic Ltd. P’ship. v. Bank of N.Y., 486 F.3d 831, 837 (4th Cir. 2007) (“[N]either the parties nor the bankruptcy court can create § 1334 jurisdiction by simply inserting a retention of jurisdiction provision in a plan of reorganization if jurisdiction otherwise is lacking....”); Binder v. Price Waterhouse & Co., (In re Resorts Int’l., Inc.), 372 F.3d 154, 161 (3d Cir. 2004) (stating that, absent jurisdiction under § 1334, “retention of jurisdiction provisions in a plan of reorganization or trust agreement are fundamentally irrelevant”); Zerand-Bernal Group, Inc. v. Cox, 23 F.3d 159, 164 (7th Cir. 1994) (“[O]rders approving [a] bankruptcy sale [or] ... plan of reorganization ... [cannot] confer jurisdiction. A court cannot write its own jurisdictional ticket.”).

Therefore, the question before us is whether Appellants’ claims for severance pay from Steward are proceedings which “arise under,” “arise in,” or are “related to” the chapter 11 bankruptcy such that they fall within the grant of jurisdiction contained in 28 U.S.C. § 1334. Given Appellants’ silence in their briefing on “arising under” and “related to” jurisdiction, they do not appear to dispute that neither form of jurisdiction applies to their claims for severance pay. Their failure to expressly argue that either form of jurisdiction applies is understandable. Appellants’ claims for severance pay from Steward derive solely from Steward’s alleged breach of sections 5 and 9 of the APA. Hence, their claims do not “arise under” title 11 because Massachusetts contract law, rather than the Bankruptcy Code, creates their cause of action. See In re Middlesex Power Equip. & Marine, Inc., 292 F.3d at 68; In re Wood, 825 F.2d at 96. Similarly, these claims fall outside even the broad statutory grant of “related to” jurisdiction in that Appellants’ claims against Steward could have no conceivable impact upon Debtors’ bankruptcy estate. See Celotex, 514 U.S. at 307, 115 S.Ct. 1493; In re Boston, 410 F.3d at 105. Indeed, Appellants state in their brief that “the Bankruptcy Court’s subject matter jurisdiction here is not based on ‘related to’ jurisdiction.”

Appellants insist, however, that their claims against Steward “arise in” a bankruptcy case because the APA was approved by the bankruptcy court in the Sale Order pursuant to 11 U.S.C. §§ 363 and 365, and, invoking language from one of our prior cases, such an order may “only be issued by a bankruptcy court.” In re Middlesex Power Equip. & Marine, Inc., 292 F.3d at 68-69. Thus, Appellants contend, their state law claims “arise in” Debtors’ bankruptcy case because, “but for” Debtors’ Chapter 11 case and the Sale Order approving the sale of Debtors’ assets to Steward in the APA, their claims for severance pay would not exist.

This argument misapprehends the relevant law. As we have explained, it is not enough for “arising in” jurisdiction that a claim arose in the context of a bankruptcy case. Instead, our case law makes clear that for “arising in” jurisdiction to apply, the relevant proceeding must have “no existence outside of the bankruptcy.” Id. at 68 (quoting In re Wood, 825 F.2d at 97). Hence, there is no “but for” test for “arising in” jurisdiction as Appellants suggest. That is, “the fact that a matter would not have arisen had there not been a bankruptcy case does not ipso facto mean that the proceeding qualifies as an ‘arising in’ proceeding.” Collier ¶ 3.01[3][e][iv], Instead, the fundamental question is whether the proceeding by its nature, not its particular factual circumstance, could arise only in the context of a bankruptcy case. In re Middlesex Power Equip. & Marine, Inc., 292 F.3d at 68. In other words, it is not enough that Appellants’ claims arose in the context of a bankruptcy case or even that those claims exist only because Debtors (Appellants’ former employer) declared bankruptcy; rather, “arising in” jurisdiction exists only if Appellants’ claims are the type of claims that can only exist in a bankruptcy case.

In re Middlesex Power Equip. & Marine, Inc, provides no support for Appellants’ contrary position. In that case, we held, inter alia, that a bankruptcy court had “arising under” or “arising in” jurisdiction to decide the scope of a sale order provision authorizing certain assets to be sold “free and clear of liens.” 292 F.3d at 68; see also Elliott v. GM LLC (In re Motors Liquidation Co.), 829 F.3d 135, 153 (2d Cir. 2016) (“A bankruptcy court’s decision to interpret and enforce a prior sale order falls under ... ‘arising in’ jurisdiction.”). Appellants point to this language, insisting that their claims, “although framed as state law claims ... depend upon an interpretation of the Bankruptcy Court’s Sale Order.” Appellants’ argument misses the mark, however, because the bankruptcy court’s mere approval of Debtors’ sale of assets to Steward did not automatically create jurisdiction over all future contract disputes somehow related to the APA. Hence, unlike Middlesex Power Equip. & Marine, Inc., which involved the interpretation of a specific provision of a sale order, Appellants here have failed to identify any provision of the Sale Order itself or any related questions of bankruptcy law underlying their claims that would require interpretation by the bankruptcy court. Indeed, the bankruptcy court’s own analysis of Appellants’ claims was based entirely on the terms of the APA and state contract law. The court mentioned the Sale Order only in reference to the retention-of-jurisdiction provision.

Therefore, a court deciding Appellants’ claims on the merits would only need to perform a state law breach of contract analysis. As the district court explained, Appellants’ claims “look like ones that could have arisen entirely outside the bankruptcy context. They are essentially employment disputes that could arise in any asset sale, regardless of whether the sale involved a bankruptcy proceeding.” Appellants’ claims are therefore not merely “framed as state law claims,” but are claims which may be decided solely under Massachusetts law. See Stoe, 436 F.3d at 218 (holding that state-law action to recover unpaid severance benefits from officers of former employer did not “arise in” a bankruptcy case). See also Marotta Gund Budd & Dzera LLC v. Costa, 340 B.R. 661, 669 (D.N.H. 2006) (holding that defamation action is not a proceeding “arising in” a bankruptcy case).

In short, Appellants’ claims do not fit into the narrow category of matters that “have no existence outside of the bankruptcy,” In re Middlesex Power Equip. & Marine, Inc., 292 F.3d at 68, or that “could only arise in the context of a bankruptcy,” Stoe, 436 F.3d at 218. Hence, the bankruptcy court did not possess “arising in” jurisdiction over Appellants’ claims.

AFFIRMED

      . Steward is a subsidiary of Steward Health Care System, a Boston-based for-profit healthcare company that operates hospitals in New England.

      . In the proceedings before the bankruptcy court, Appellants originally argued that their claims for severance pay against Debtors qualified as expenses of administration of a Chapter 11 case under 11 U.S.C. § 503(b)(1). In opposing these claims, Debtors argued that the claims were properly against Steward because Steward had violated the APA by not offering employment to Appellants. Citing our opinions in Mason v. Official Comm, of Unsecured Creditors (In re FBI Distrib. Corp.), 330 F.3d 36, 41 (1st Cir. 2003) and Cramer v. Mammoth Mart, Inc, (In re Mammoth Mart, Inc.), 536 F.2d 950, 954 (1st Cir. 1976), the court denied Appellants’ claims against Debtors, holding that "[severance pay is entitled to administrative expense priority only to the extent it is tied to the employee's length of service” and only for the portion of severance pay "attributable to post petition services.” Hence, the court held that, because the severance pay claims were unrelated to Appellants’ salaries and lengths of service with Debtors, the claims were "not entitled to treatment as expenses of administration under Bankruptcy Code § 503(b)(1).” The court went on to find, however, that because Appellants’ claims also alleged that "Steward violated the terms of the APA by not offering them employment post-closing” and because the APA was made binding on both Appellants and Steward, the court would treat the claims as "seeking ... an order directing Steward to pay [the claims].”

      . The term “proceeding,” as used in 28 U.S.C. § 1334(b), refers "to the steps within the ‘case’ and to any subaction within the case that may raise a disputed or litigated matter.” Mich. Emp’t Sec. Comm’n v. Wolverine Radio Co. (In re Wolverine Radio Co.), 930 F.2d 1132, 1141 n.14 (6th Cir. 1991).

      . Section 157(a) leaves it up to the district courts whether to refer or not to refer cases and proceedings to the bankruptcy courts. In practice, however, “each district court has provided by rule for automatic reference to bankruptcy judges." Collier on Bankruptcy ¶ 3.02 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2016). Accordingly, the District of Massachusetts, by standing order, has delegated to the bankruptcy court all cases in which jurisdiction is premised on § 1334, see D. Mass. R. 201, subject to review by the district court (or, in the alternative, by the bankruptcy appellate panel) in accordance with 28 U.S.C. § 157(a). See also LeBlanc v. Salem (In re Mailman Steam Carpet Cleaning Corp.), 196 F.3d 1, 5 (1st Cir. 1999) (discussing D. Mass. R. 201).

      . Section 157 also divides bankruptcy proceedings into two further categories: "core” and "non-core.” Stern v. Marshall, 564 U.S. 462, 473-76, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). These categories determine "[t]he manner in which a bankruptcy judge may act on a referred matter.” Id. at 473, 131 S.Ct. 2594. Proceedings "arising under title 11, or arising in a case under title 11,” are both considered "core proceedings” in which the bankruptcy court may enter final orders and judgments. Id. at 474, 131 S.Ct. 2594 (citing 28 U.S.C. § 157(b)). Proceedings merely "related to” a case under title 11 are considered “non-core” proceedings. Stem, 564 U.S. at 477, 131 S.Ct. 2594 (citing Collier on Bankruptcy ¶ 3.02[2], p. 3-26, n.5 (16th ed. 2010) ("The terms 'non-core' and ‘related’ are synonymous.”)). Although whether a bankruptcy proceeding is a core proceeding is analytically separate from whether there is jurisdiction, "by definition all core proceedings are within the bankruptcy court’s jurisdiction.” Continental Nat'l Bank v. Sanchez (In re Toledo), 170 F.3d 1340, 1345 n.6 (11th Cir. 1999) (citing 28 U.S.C. §§ 157(b)(1), 1334(b)).

      . Indeed, the "but for" test articulated by Appellants for "arising in" jurisdiction would potentially eliminate the boundaries of "related to" jurisdiction, allowing a party to invoke the "core” jurisdiction of the bankruptcy court even for claims that could have no conceivable impact "upon the handling and administration of the bankrupt estate.” In re Boston, 410 F.3d at 105; See also Celotex, 514 U.S. at 308 n.6, 115 S.Ct. 1493 ("[B]ankruptcy courts have no jurisdiction over proceedings that have no effect on the estate of the debtor.”); Collier ¶ 3.01[3][e][iv] (noting that a "but for” test for "arising in” jurisdiction "would surely expand bankruptcy jurisdiction well beyond that which is constitutional”).

      . Our conclusion here is buttressed by the fact that Appellants filed almost identical claims for breach of the APA against Steward in Massachusetts state court while this appeal was pending. See Munger et al. v. Quincy Medical Center, a Steward Family Hospital, Inc., Civil Action No. 15-2099-C. On October 11, 2016, the state court granted summary judgment for Steward on Appellants’ claims. Id. In deciding the summary judgment motion, the state court made no reference to any part of the Sale Order itself, instead relying only on the existence vel non of Appellants’ contractual rights under the APA. Given these facts, Appellants’ claims can hardly "depend upon an interpretation of the Bankruptcy Court's Sale Order."
      We further note that both parties were remiss in failing to inform this court of the outcome of the state court proceedings. The state court’s grant of summary judgment does not, however, moot the question of whether the bankruptcy court had subject matter jurisdiction over Appellants’ claims in federal court. Rather, if we were to conclude that the bankruptcy court had jurisdiction, the district court on remand would have to address a number of complex procedural questions, including the potential preclusive effect of the state court proceedings. However, because we find that the bankruptcy court lacked subject matter jurisdiction over Appellants’ claims, those issues do not arise.


author: BARRON, Circuit Judge.

text:
    FULL SPECTRUM SOFTWARE, INC., Plaintiff, Appellee, v. FORTE AUTOMATION SYSTEMS, INC., Defendant, Appellant.
    No. 15-2193
    United States Court of Appeals, First Circuit.
    June 2, 2017

      Eric H. Loeffler, with whom Hinshaw & Culbertson LLP, Boston, MA, was on brief, for appellant.
    David M. McGlone, with whom Christian B.W. Stephens and Eckert, Seamans, Che-rin & Mellott, LLC, Boston, MA, were on brief, for appellee.
    Before TORRUELLA, LYNCH, and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

This appeal concerns a dispute between two businesses: Forte Automation Systems, Inc. (“Forte”), the defendant-appellant, and Full Spectrum Software, Inc. (“Full Spectrum”), the plaintiff-appellee. Their dispute requires us to resolve two distinct legal issues. The first turns on whether the evidence in the record suffices to sustain the jury’s verdict and chiefly concerns the scope of the Massachusetts catch-all consumer protection statute, chapter 93A. See Mass. Gen. Laws ch. 93A. The other turns on whether Full Spectrum had a right to have its chapter 93A claim for damages tried by a jury in federal court at all. Because we decide both issues in favor of Full Spectrum, we affirm.

I.

The following facts are uncontested. This dispute dates back to June of 2011. At that time, Forte executed a contract with ProTom International, Inc. (“ProTom”). Under that contract with ProTom, Forte agreed to engineer specialized software for a proton radiation therapy station in a cancer treatment hospital. Full Spectrum became involved in the following way.

After Forte secured the contract with ProTom, Forte executed a subcontract to complete the project with Medical Instruments, Co., doing business as Civco Medical Solutions (“Civco”). Civco, in turn, subcontracted software development services for the project to Full Spectrum. On or about April 16, 2012, however, Civco pulled out of the project. And, on April 16, a representative from Civco informed Full Spectrum, over email, that “starting today, all work performed on the product should be billed to Forte,” and that Forte would want a quote on the remaining work.

The next day, April 17, the president of Full Spectrum, Andrew Dallas, emailed the president of Forte, Toby Henderson, to confirm that Forte would be taking over management of the project. In that email, Dallas told Henderson, “In order to make the transition, we’ll need to get our Consulting Services Agreement (CSA) in place with Forte along with a Work Order for the project.” Dallas attached the CSA, along with Full Spectrum’s billing rates, to the email. No Work Order was attached. Forte’s Project Manager, Ed Roman, replied on April 18, directing Full Spectrum to continue work on the project.

In accord with Roman’s email, Full-Spectrum continued to work on the project over the next several weeks. Full Spectrum also billed Forte on April 30, May 7, and May 14, in the total amount of $133,053.75. As we discuss in more detail below, the parties also continued to work out aspects of their commercial terms. On May 3, Forte and Full Spectrum signed the CSA. Full Spectrum then sent Forte the Work Order—which contained specific details about the project—and repeatedly requested that Forte sign it. On May 14, Forte presented Full Spectrum with a Purchase Order, which contained terms that were different from those in Full Spectrum’s CSA and Work Order, and that were adverse to Full Spectrum. On that same date, Full Spectrum terminated its involvement with the project. Forte subsequently refused to compensate Full Spectrum for the work that Full Spectrum had completed between April 16 and May 14.

On August 10, 2012, Full Spectrum, which is based in Massachusetts, filed this diversity suit against Forte, which is based in Illinois, in federal court in the District of Massachusetts. In the complaint, Full Spectrum alleged various claims under Massachusetts law, only two of which remain at issue on appeal. These two claims are for breach of implied contract and violation of chapter 93A.

Prior to trial, Full Spectrum moved to submit the chapter 93A claim to a binding jury, or, in the alternative, to an advisory jury. Forte objected under Rule 39 of the Federal Rules of Civil Procedure to submitting the claim to a binding jury, arguing that there is no right to a jury trial— under state or federal law—for claims under chapter 93A. The District Court granted Full Spectrum’s motion without comment.

At the close of evidence, Forte submitted a motion under Rule 50(a) of the Federal Rules of Civil Procedure for judgment as a matter of law. In its motion, Forte contended that there was not sufficient evidence to support a finding for Full Spectrum on either the implied contract or the chapter 93A claim. The District Court denied the motion without comment..

Before the jury began deliberations, the District Court instructed the jury, “I have no opinion about what the facts are or what your verdict ought to be; that is solely and exclusively your duty and responsibility.” The jury then was given a special verdict form and returned the following verdict. The jury found Forte liable for breach of implied contract and for knowing and willful violation of chapter 93A. The jury awarded Full Spectrum $133,053.75 in actual damages, without specifying whether those damages arose from the breach of implied contract, from the violation of chapter 93A, or from some combination of the two. The jury also awarded Full Spectrum $350,000 in punitive damages specifically based on the violation of chapter 93A.

In entering the judgment, the District Court noted that the judgment reflected a jury verdict, rather than a decision by the District Court itself. Forte then renewed its motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. The District Court denied the motion without comment.

On appeal, Forte challenges the District Court’s denial of Forte’s motion for judgment as a matter of law on both Full Spectrum’s implied contract claims and on its chapter 93A claims, contending that there was not sufficient evidence to support the jury’s verdict on either claim. Forte also challenges the District Court’s decision to submit Full Spectrum’s chapter 93A claim to a jury notwithstanding Forte’s objection under Rule 39.

II.

We begin with Forte’s challenge to the denial of Forte’s motion for judgment as a matter of law based on insufficient evidence. Our review is de novo. Jones ex rel. U.S. v. Mass. Gen. Hosp., 780 F.3d 479, 487 (1st Cir. 2015). We “must affirm unless the evidence, together with all reasonable inferences in favor of the verdict, could lead a reasonable person to only one conclusion, namely, that the moving party was entitled to judgment.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009) (citation omitted). We must' refrain from passing judgment upon the credibility of witnesses, resolving evidentiary conflicts, or evaluating the weight of the evidence. Delgado v. Pawtucket Police Dep’t, 668 F.3d 42, 50 (1st Cir. 2012).

A.

As noted above, the jury found that Forte was liable for both breach of implied contract and for violating chapter 93A. The jury awarded Full Spectrum the entire amount that Full Spectrum claimed in actual damages without specifically basing that award on either theory of liability. Forte makes no argument that, because the damages award was aggregated, that award cannot be sustained unless we sustain both theories of liability as a matter of law. In fact, at oral argument, Forte expressly conceded the opposite. As a result, we may uphold the judgment for actual damages so long as there is sufficient evidence in the record to sustain either the implied contract claim or the chapter 93A claim. Moreover, ' the jury additionally awarded Full Spectrum $350,000 in punitive damages, and predicated the punitive damages solely on the finding that Forte’s chapter 93A violation was knowing and willful. Thus, the parties agree that the entire judgment—encompassing the award of both actual and punitive damages—can stand so long as the chapter 93A verdict can stand. We therefore focus on whether the record provides sufficient support for the jury’s verdict on that claim.

Chapter 93A makes unlawful “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Mass. Gen. Laws ch. 93A § 2. Section 11 of the statute extends its protections to business entities. Id at §§ 9, 11. Chapter 93A does not define what constitutes an unfair or deceptive act or practice. And, though “the boundaries of what may qualify for consideration as a [chapter 93A] violation is a question of law,” “whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact.” Commercial Union Ins. Co. v. Seven Provinces Ins. Co., 217 F.3d 33, 39 (1st Cir. 2000) (quoting Schwanbeck v. Fed. Mogul Corp., 31 Mass.App.Ct. 390, 578 N.E.2d 789, 803-04 (1991)).

To determine whether conduct is unfair, the finder of fact must assess whether the conduct “falls ‘within at least the penumbra of some common-law, statutory, or other established concept of unfairness’; ‘is immoral, unethical, oppressive, or unscrupulous’; and ‘causes substantial injury to consumers.’ ” Walsh v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st Cir. 2016) (quoting PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 321 N.E.2d 915, 917 (1975)). And to determine whether conduct is deceptive, the finder of fact must assess whether the conduct “possesses a tendency to deceive” and “could reasonably be found to have caused a person to act differently from the way he [or she] otherwise would have acted.” Walsh v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st Cir. 2016) (alteration in original) (quoting Aspinall v. Philip Morris Cos., 442 Mass. 381, 813 N.E.2d 476, 486 (2004)).

B.

Full Spectrum contends that the record suffices to show that Forte knowingly and intentionally violated chapter 93A in a number of ways. We focus on only one of these ways here, in which Full Spectrum contends that Forte violated chapter 93A by intentionally “stringing along” Full Spectrum for Forte’s benefit and to Full Spectrum’s detriment. See Greenstein v. Flatley, 19 Mass.App.Ct. 351, 474 N.E.2d 1130, 1133-34 (1985) (finding a chapter 93A violation where defendants engaged in a “pattern of conduct ... calculated to misrepresent the true situation to the plaintiff, keep him on a string, and make the plaintiff conclude—reasonably—that [a] deal had been made”); see also Mass. Eye and Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 69-70 (1st Cir. 2009) (explaining that “stringing along a counterparty to induce detrimental reliance can constitute a chapter 93A violation” because “Massachusetts cases ... recognize a need to police negotiations— even those among relatively sophisticated parties—to ensure that they are not unfair or deceptive” (citation omitted)).

Specifically, Full Spectrum contends that the record supports the finding that Forte deliberately delayed and failed to sign the Work Order, while taking steps to induce Full Spectrum to believe that Forte would sign it. And, Full Spectrum goes on to argue, the record also supports the finding that Forte then attempted to leverage Full Spectrum’s financial exposure through the work it had done in order to coerce Full Spectrum into signing Forte’s Purchase Order, which contained terms adverse to Full Spectrum relative to the terms that would have been binding had the Work Order been signed. We agree.

First, the record shows that Forte was aware that Full Spectrum expected Forte to sign the Work Order from the very beginning of the relationship between Full Spectrum and Forte. From its first email to Forte on April 16, Full Spectrum made clear to Forte that the two of them would “need to get” the Work Order in place. In that email, Full Spectrum explained, “[W]e will have to start with a ‘block’ Work Order expressing engineering time and budget in order to allow us to continue to make progress while preparing the estimate based upon the updated requirements.”

The record also provides support for finding that Forte knew both that, unless the Work Order was signed, the CSA would not take effect—even if separately signed—and that the CSA contained terms that were important to Full Spectrum and favorable to it. Indeed, the District Court in this case found (in an earlier ruling on the parties’ cross-motions for partial summary judgment), and neither party contests, that the- CSA did not, on its own, constitute an enforceable contract because—rather than specifying the terms of the agreement—the CSA was designed to incorporate such terms by reference to the Work Order. For example, the CSA did not identify the project at issue, instead providing that “Full Spectrum shall perform the service for the project identified in the Work Order which is attached hereto.” And Full Spectrum made it clear to Forte from its first email to Forte that Full Spectrum would “need to get our Consulting Services Agreement (CSA) in place along with a Work Order.”

These aspects of the record are significant for the following reason. The record supportably shows that, even though Forte was aware that Full Spectrum expected Forte to sign the Work Order from the beginning, Forte had no intention of doing so. And yet, the record supportably shows, rather than informing Full Spectrum at any point that it had concerns with the Work Order, Forte actually took actions to induce Full Spectrum to conclude otherwise so that it would continue working for Forte.

In particular, on May 3, 2012, Toby Henderson and Andrew Dallas, the presidents of Forte and Full Spectrum, respectively, met in person. At that meeting, Forte signed Full Spectrum’s CSA. But while the signing of the CSA could reasonably have been understood to indicate that Forte intended to then sign the Work Order, Forte’s president, Toby Henderson, testified at trial that he in fact had no such intention. Rather, he testified that the reason he signed the CSA was because a representative from ProTom “was in the next room” and Henderson felt pressure to report to ProTom that he had a subcontractor working on the project.

Then, in the weeks following the May 3 meeting at which the CSA had been signed, Full Spectrum continued to request that Forte sign the Work Order. Forte, however, failed to respond to Full Spectrum’s repeated requests, even though evidence in the record shows that Forte knew that Full Spectrum was continuing to work on the project.

Finally, the record shows that Full Spectrum eventually informed Forte that Full Spectrum would have to leave the project if it did not receive the signed Work Order. At that point, Forte’s Project Manager, Ed Roman, responded with an affirmative assurance that Forte would sign the Work Order. Specifically, Roman promised Full Spectrum that Forte would send the signed Work Order by the morning of May 14, 2012. But, notwithstanding that statement, on May 14, Forte did not send Full Spectrum the signed Work Order. Forte instead sent Full Spectrum a copy of Forte’s own Purchase Order, which was materially less favorable to Full Spectrum than Full Spectrum’s CSA and Work Order. It was at that point that Full Spectrum pulled out of the project.

Drawing “all reasonable inferences in favor of the verdict,” Astro-Med, 591 F.3d at 13, we conclude that.a jury reasonably could find the following. Forte was aware from the first day of its relationship with Full Spectrum that Full Spectrum intended for the CSA and Work Order together to constitute the contract between-the parties. Forte was also aware that the CSA on its own would not become an enforceable contract unless Forte signed both documents. But, even though Forte had no intention of being bound by the CSA, Forte chose to string Full Spectrum along for several weeks by signing the CSA and telling Full Spectrum that it would also sign the Work Order without ever doing so. And then, at the last moment, and with no attempt at discussion or negotiation, Forte substituted Full Spectrum’s Work Order with Forte’s own Purchase Order, which was materially less favorable to Full Spectrum.

Thus, while Forte contends that this case is not “anything more than a dispute over whether money was owed,” which would not give rise to a violation of chapter 93A, see Duclersaint v. Fed. Nat’l Mortg. Ass’n, 427 Mass. 809, 696 N.E.2d 536, 540 (1998), a jury could reasonably find that Forte had strung Full Spectrum along in order to take advantage of Full Spectrum’s financial exposure in its attempt to replace the terms in Full Spectrum’s CSA with the terms in Forte’s Purchase Order. Accordingly, we reject Forte’s challenge to the District Court’s denial of Forte’s motion for judgment as a matter of law.

In so holding, we recognize that Section 11 of chapter 93A subjects businesses to “a stricter standard than consumers in terms of what constitutes unfair or deceptive conduct.” Giuffrida v. High Country Inv’r, Inc., 73 Mass.App.Ct. 225, 897 N.E.2d 82, 95 (2008); see also Buster, 783 N.E.2d at 413 (“[T]he market is a rough and tumble place where a competitor’s lack of courtesy, generosity, or respect is neither uncommon nor in itself unlawful.”). But, one business’s stringing along of another to the other’s detriment can satisfy that stricter standard. See Greenstein, 19 Mass.App.Ct. at 358, 474 N.E.2d 1130 (affirming chapter 93A judgment where the stringing along of sophisticated plaintiff, an accounting firm, went “beyond the toleration even of persons inured to the rough and tumble of the world of commerce”). And, here, a reasonable jury could have found that Forte’s conduct violated even the heightened standard that applies to conduct between business entities under chapter 93A.

Finally, while Forte contends that there was not sufficient evidence to support the jury’s imposition of punitive damages on the chapter 93A claim because Full Spectrum failed to show that Forte’s violation of chapter 93A was knowing and willful, Forte failed to argue that its chapter 93A violation was not knowing and willful in its Rule 50(a) pre-verdict motion for judgment as a matter of law. Thus, the issue is waived. Costa-Urena v. Segarra, 590 F.3d 18, 26 n.4 (1st Cir. 2009) (“It is well-established that arguments not made in a motion for judgment as a matter of law under Rule 50(a) cannot then be advanced in a renewed motion for judgment as a matter of law under Rule 50(b).”).

III.

We now turn to the aspect of Forte’s argument that relies on Federal Rule of Civil Procedure 39(c), which prohibits courts from submitting claims to a binding jury in the absence of the defendant’s consent unless those claims are triable by jury as of right. The parties agree that Rule 39(c) permitted the District Court to submit the chapter 93A claim to a binding jury over Forte’s objection only if chapter 93A claims are triable to a jury as of right in federal court under the federal Constitution. Forte therefore rests its argument to us on the same ground that it pressed below: that the Seventh Amendment does not guarantee a right to trial by jury for chapter 93A claims in federal courts. As Forte brings only a legal challenge under Rule 39(c) to the District Court’s ruling that Full Spectrum was entitled to a jury trial as of right, we review that ruling de novo. See Mile High Indus. v. Cohen, 222 F.3d 845, 855 & n.8 (10th Cir. 2000).

A Rule 39 error is harmless where “only one reasonable verdict was possible from the evidence,” but is not harmless “[i]n close cases” where “the losing parties’ right to appellate review can be prejudiced.” Troy v. City of Hampton, 756 F.2d 1000, 1003 (4th Cir. 1985). But here, it is not clear from the record that “only one reasonable conclusion was possible from the evidence,” such that “the district judge would not have been justified in disregarding the jury’s verdict.” See Dombeck v. Milwaukee Valve Co., 40 F.3d 230, 237 (7th Cir. 1994). Thus, Forte contends that if we agree it was an error to try the case by jury over Forte’s objection, we must vacate and remand so that the District Court may enter its own findings of fact and conclusions of law on the basis of the evidence adduced at the trial that was held. See id. (ordering the case be “remanded for factfinding by the judge independent of the jury’s verdict”). Accordingly, we turn to the merits of the Seventh Amendment issue.

The Jury Trial Clause of the Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” U.S. Const, amend. VIL The phrase “suits at common law” refers not only to causes of action that existed in 1791, when the Seventh Amendment was adopted, but also to new causes of action created by statute, as long as those statutes “create[] legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.” Curtis v. Loether, 415 U.S. 189, 192, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). To determine whether a statute “creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law,” we undertake a three-part inquiry.

First, we “compare the new statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity.” Braunstein v. McCabe, 571 F.3d 108, 118 (1st Cir. 2009) (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989)). We do so to determine whether the current action is “analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century.” Id.

Second, we “examine the remedy sought and determine whether it is legal or equitable in nature. This stage of the analysis is more important than the first stage.” Id. (quoting Granfinanciera, 492 U.S. at 42, 109 S.Ct. 2782).

Finally, if the first two inquiries indicate that a party has a jury trial right, we need to undertake one more. We must determine if Congress has “assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as factfinder,” such as the Bankruptcy Court. Id. (quoting Granfmanciera, 492 U.S. at 42, 109 S.Ct. 2782). For, if Congress has done so, then we must assess whether the legal claim at issue is a “private or a public right” in order to determine whether the legislative assignment is permissible. Id.

Here, it is only the first inquiry that is at issue. For, although some types of money damages, such as restitutionary damages, may be equitable, “the relief sought here—actual and punitive damages—is the traditional form of relief offered in the courts of law.” Curtis, 415 U.S. at 196, 94 S.Ct. 1005. Nor is there any issue regarding the third inquiry. Thus, we need focus only on whether chapter 93A is analogous to those causes of action that could have been tried in courts of law, rather than in courts of equity, in late 18th-century England.

Chapter 93A is a catch-all statute that makes unlawful “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Mass. Gen. Laws ch. 93A, § 2 (emphases added). As each of chapter 93A’s constituent parts is itself distinct, a chapter 93A claim may be predicated on an underlying claim of unfair methods of competition, unfair acts or practices, or deceptive acts or practices. See Serv. Publ’ns, Inc. v. Goverman, 396 Mass. 567, 487 N.E.2d 520, 527 (1986) (“The jury could have found [the defendant’s] business practices to be unfair without being deceptive or fraudulent.”).

It is possible that, where a claim is brought under a particular constituent part of chapter 93A, the proper approach to the Seventh Amendment inquiry would be to determine whether there was an analogous common-law cause of action in English courts of the late 18th century. See John T. Montgomery & Sarah E. Wald, The Right to Trial by Jury in c. 93A Actions, 67 Mass. L. Rev. 79, 83 (1982). But here, the jury was instructed to consider this chapter 93A claim as one undifferentiated whole, and Forte does not ask us to treat it otherwise. We thus evaluate Full Spectrum’s chapter 93A claim in the aggregate. And, considered that way, the cause of action at issue appears to be encompassed by the Seventh Amendment.

Specifically, Full Spectrum’s chapter 93A claim necessarily encompassed a claim for “deception,” which does appear to be a claim that is analogous to 18th-century actions at law, such as fraud, deceit, or misrepresentation. See, e.g., Pasley and Another v. Freeman (1789) 100 Eng. Rep. 450 (claim for misrepresentation and deceit brought as an action at law in the Court of King’s Bench); see also In re Evangelist, 760 F.2d 27, 32 (1st Cir. 1985) (Breyer, J.) (misrepresentation is “a classical tort action brought ‘at law* ”); 3 William Blackstone, Commentaries *432 (“[EJvery kind of fraud is equally cognizable, and equally adverted to, in a court of law” as in a court of equity, “and some frauds are only cognizable [in a court of law], as fraud in obtaining a devise of lands.”). That fact is significant because the Supreme Court has explained that, where a cause of action “encompasses both equitable and legal issues[,] [t]he first part of [the] Seventh Amendment inquiry ... leaves [courts] in equipoise,” Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990), thereby making dispositive the other two inquiries. And, as we have explained, each of these inquiries favors Full Spectrum in this case. Thus, the Seventh Amendment would appear to encompass the claim that the jury heard here, whether or not a claim under chapter 93A for “unfair” conduct—like one for deception—also is properly analogized to claims traditionally tried in courts of law. But see Allan Farnsworth, Farnsworth on Contracts § 4.28, at 580 (3d ed. 2004) (“[U]nconscionability was historically a matter for equity where there was no jury.”).

Moreover, in asking us to reverse the District Court, Forte offers no developed argument as to why we should conclude that an undifferentiated chapter 93A claim is analogous to a claim that would have been tried in a court of equity in late 18th-century England and not to one that would have been tried in a court of law. Forte does appear to imply that Full Spectrum’s claim is not of this latter type in asserting that “equitable claims are to be tried by the Court unless both parties consent to a jury trial.” But that passing assertion is not remotely close to a developed argument that a chapter 93A claim is necessarily analogous to an equitable one, at least when considered in the aggregate. Thus, any such argument is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Forte does assert in conelusory fashion that there is no right to a jury trial on chapter 93A claims because chapter 93A “created new substantive rights in which conduct heretofore lawful under common and statutory law is now unlawful.” But, it is clear that a statute which creates a new right may still trigger a jury trial right. Such a statutory right need only be analogous to a cause of action traditionally triable by the courts of law to fall within the Seventh Amendment’s ambit. See Curtis, 415 U.S. at 193-94, 94 S.Ct. 1005 (holding that the Seventh Amendment does apply to actions enfore-ing newly enacted statutory rights so long as they are “analogous” to those that could have been brought at law in 18th-century England). And, as we have noted, Forte makes no developed argument as to why a chapter 93A claim is not so analogous. Thus, in pressing this argument, Forte again provides us with no reason to reverse the ruling below regarding Rule 39.

Forte’s final argument is that our controlling precedent holds that chapter 93A claims are not encompassed by the Seventh Amendment. But, this argument, though developed, fails because it relies upon a misreading of our precedent.

To be sure, Forte is right that in Wallace Motor Sales, Inc. v. American Motor Sales Corp., 780 F.2d 1049, 1063-64 (1st Cir. 1985), we did reference the Supreme Judicial Court’s decision in Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674 (1983), which held that there is no right to a jury trial for chapter 93A actions under the Massachusetts Constitution. And, in doing so, we did state that “the reasoning employed by the Massachusetts Supreme Judicial Court in Nei is determinative of the [S]eventh [A]mendment issue.”

But, our subsequent precedent has made clear that Wallace is not determinative of the Seventh Amendment ques.tion. In particular, in Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 97 (1st Cir. 2014), we explained that the statement in Wallace on which Forte relies was dicta because the parties in Wallace had stipulated that claims under chapter 93A do not command a right to a jury trial. Id. (citing Wallace, 780 F.2d at 1064). Frappier also explained that Nei offered a construction of the jury trial right under the Massachusetts Constitution, not the Seventh Amendment to the federal Constitution, and “a litigant’s right to a jury under the Seventh Amendment for state-law claims in federal court is a matter of federal, not state, law.” Id.; see also Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963) (per curiam) (“[T]he right to a jury trial in the federal courts is to be determined as a matter of federal law in diversity as well as other actions.”); Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S. 525, 538-39, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) (holding that Seventh Amendment right to jury trial in federal court may exist even with respect to a state-created right and even when a state statute or state constitution would preclude a jury trial in state court). Thus, Frappier made clear that “a litigant seeking legal relief in federal court under chapter 93A may be entitled to a jury,” “[r]egardless of any contrary language in Wallace.” Frappier, 750 F.3d at 98.

Forte does also cite to our more recent decision in Baker v. Goldman, Sachs & Co., 771 F.3d 37 (1st Cir. 2014), in which we stated in a footnote that “[t]here is no right to trial by jury for claims brought under ch. 93A.” Id. at 48 n.5. But, the parties in Baker, like those in Wallace, did not actually raise the question whether there is a Seventh Amendment right to trial by jury for chapter 93A claims. Rather, in that case, the jury decided the plaintiffs common-law claims, and the district court decided the plaintiffs chapter 93A claims. Id. at 49. As such, Baker, like Wallace, does not decide the question. Accordingly, there is no precedent from our circuit that resolves whether the Seventh Amendment requires that a chapter 93A claim be tried to a jury in federal court, and Forte’s claims to the contrary are misplaced.

Thus, given that Forte offers no developed, meritorious argument for why the District Court erred in submitting Full Spectrum’s claim to a jury; that this chapter 93A claim was brought in the aggregate; and that one of its constituent parts appears to be analogous to the kind of tort action over which the courts at law traditionally had jurisdiction, we reject Forte’s request for reversal. We leave for another day a fuller consideration of the extent to which the Seventh Amendment may apply to chapter 93A claims.

IV.

For the foregoing reasons, we affirm the denial of Forte’s motion for judgment as a matter of law and affirm the submission of the chapter 93A claim to the jury.

      . For instance, the CSA required payment within 30 days of a billing date, whereas the Purchase Order allowed for payment within 60 days of a billing date; the CSA provided that Full Spectrum’s work product was under "no warranties of any kind, either express or implied,” whereas the Purchase Order required a number of explicit warranties; and the CSA provided for termination by mutual agreement or at the completion of project phases, with 30 days' notice, whereas the Purchase Order provided that, in the case of seller default, Forte could cancel the agreement "at any time.”

      . Full Spectrum contends that we lack jurisdiction over this appeal because Forte’s Notice of Appeal was prematurely filed. This argument, however, is without merit in light of the 2009 amendments to Rule 4 of the Federal Rules of Appellate Procedure.

      . To the extent that Forte contends that the jury’s chapter 93A verdict is necessarily based on there having been a contract in place that was breached, there is nothing in the jury instructions that supports this argument. In any event, the argument is waived, as Forte failed to include it in Forte's motion under Rule 50(a) of the Federal Rules of Civil Procedure for judgment as a matter of law. See Jones, 780 F.3d at 487 (a failure to raise a challenge in a pre-verdict Rule 50(a) motion for judgment as a matter of law results in a waiver of that issue on appeal).

      . The Massachusetts Supreme Judicial Court has held that there is neither a statutory right to a jury trial nor a constitutional right to a jury trial under the Massachusetts state constitution for a claim under chapter 93A. Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674, 677-79 (1983).

      . In submitting the case to the jury over Forte’s objection, the District Court did not explicitly hold that Full Spectrum had a Seventh Amendment right to a jury trial for its chapter 93A claim. But the record shows— and the parties agree—that the District Court gave the case to a binding jury, not an advisory one. Accordingly, we understand the District Court’s summary denial of Forte's opposition to Full Spectrum’s motion for a jury, in which Forte argued that Full Spectrum did not have a Seventh Amendment right to a jury trial, to have impliedly found that such a right obtains.

      . Full Spectrum does not argue that the Rule 39 issue has been waived in consequence of Forte's failure to raise the issue at any point after its initial objection.

      . Despite the fact that there is no state constitutional right to trial by jury in chapter 93A cases in Massachusetts courts, "the jury trial of chapter 93A cases became routine and continues to this day,” as "justices of the Superi- or Court went right on trying chapter 93A cases to a jury whenever related contractual or tort claims deserved such a trial and where it served judicial efficiency.” Mass. Eye & Ear Infirmary v. QLT, Inc., 495 F.Supp.2d 188, 194 (D. Mass. 2007), aff'd in part, vacated in part, Mass. Eye & Ear Infirmary, 552 F.3d 47.


author: TORRUELLA, Circuit Judge.

text:
    Joel DÍAZ-NIEVES; Giovanny Díaz-Nieves; Aida Nieves-Pérez; Saúl Díaz-Rodríguez, Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
    No. 16-1107
    United States Court of Appeals, First Circuit.
    June 5, 2017

      Raúl S. Mariani-Franco, San Juan, PR, for appellants.
    Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
   TORRUELLA, Circuit Judge.

Plaintiff Joel Diaz-Nieves (“Joel”) appeals from the district court’s grant of partial summary judgment in favor of defendant-appellee the United States, dismissing his false arrest, false imprisonment, and malicious prosecution claims. Co-plaintiffs, Joel’s parents, Saúl Diaz-Rodríguez and Aida Nieves-Pérez, and Joel’s brother, Giovanny Diaz-Nieves, (collectively hereinafter his “family” or “relatives”) also appeal, challenging the district court’s dismissal of their derivative and independent tort claims under Fed. R. Civ. P. 12(c). After careful consideration, we affirm.

I. Background

A. Factual Background

This case originates under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671-2680, concerning an arrest made during “Operation Guard Shack,” a reverse sting operation launched by the Federal Bureau of Investigation (“FBI”) with the goal of identifying corrupt police and corrections officers in Puerto Rico. In July 2010, a corrections officer falsely claiming to be Joel Diaz-Nieves participated in Deal 105 of Guard Shack (a controlled buy of fake cocaine). The government verified that a man by that name did work for the Department of Corrections and requested his employee file, among other records. On August 5, 2010, the FBI received Joel’s employment file, which included his picture. Joel Diaz-Nieves was indicted and a warrant was issued for his arrest. Nothing in the record suggests that at the time they sought the warrant the FBI agents knew that Joel Diaz-Nieves was not the real name of the corrections officer that had participated in Deal 105.

On October 6, 2010, the FBI agents executed the arrest warrant at Joel’s home. Joel lived with his parents, Saúl and Aida, and his brother, Giovanny. Saúl opened the door and, with a gun pointed at him, was made to stand against an exterior wall. At some point, his pants fell to the ground and he was left standing naked in the street. Aida was also ordered to face a wall. Giovanny observed laser sights on his head and chest upon exiting to the balcony of his house. Joel, who was a Department of Corrections officer and had no previous criminal record, located his work weapon and headed to the front door. There, Joel observed laser sights on his body coming from the FBI agents’ weapons; consequently, he surrendered and was arrested.

Joel asked why he had been arrested and was told by FBI agents that he had been charged with drug trafficking, which he denied. An agent showed Joel a photograph taken from a video recording of Deal 105, which showed a man involved in a drug transaction, but Joel said he was not the man in the photo. Joel was processed and interviewed by the FBI, and he continued to assert his innocence. He was detained in the Metropolitan Detention Center in Guaynabo, Puerto Rico for three days. Joel’s family retained a lawyer and paid fees for appraisals of properties in anticipation of obtaining bail. On October 9, 2010, Joel was released from custody. The FBI eventually discovered that the corrections officer claiming to be Joel Diaz-Nieves was in fact another corrections officer named José Nieves-Vélez (“Nieves-Vélez”), who had used Joel’s name to shield his identity. Nieves-Vélez was arrested on October 12, 2010. The following day, the government moved to dismiss the indictment as to Joel.

B. Procedural History

On March 14, 2013, Joel and his family (collectively, the “Plaintiffs”) filed a complaint alleging that, as a result of Joel’s arrest, they had suffered damages and injuries compensable under the FTCA. Specifically, Joel asserted claims of negligent investigation, false arrest, false imprisonment, and malicious prosecution. His relatives asserted derivative claims for the actions against Joel and independent claims of excessive use of force under Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141. On November 26, 2013, the United States filed a motion to dismiss Joel’s negligent investigation, false arrest, and false imprisonment claims. The Plaintiffs opposed the motion to dismiss. On July 9, 2014, the district court dismissed the negligent investigation claim because it was “jurisdictionally barred by the discretionary function exception to the FTCA,” but refused to dismiss at that stage Joel’s claims of false arrest and false imprisonment.

After discovery was completed, the parties filed cross-motions for partial summary judgment. In its motion, the United States requested the dismissal of only Joel’s claims. On July 1, 2015, the district court denied Joel’s motion for partial summary judgment and granted the United States’ motion for partial summary judgment, dismissing Joel’s only remaining claims of false arrest, false imprisonment, and malicious prosecution. The district court denied Joel’s subsequent motion for reconsideration.

The case continued as to Joel’s relatives. On September 18, 2015, the government filed a motion to dismiss the remaining claims. The relatives opposed the motion. On December 14, 2015, the district court granted the government’s motion, which it treated as one for judgment on the pleadings, finding that the relatives had failed “to state a[ny] plausible claim for relief.” Accordingly, the district court entered judgment dismissing the complaint in its entirety. Plaintiffs timely appealed.

On appeal, Joel challenges the granting of partial summary judgment dismissing his false arrest, false imprisonment, and malicious prosecution claims under the FTCA. In turn, his relatives challenge the district court’s dismissal of their independent claims for excessive use of force and their derivative claims due to Joel’s arrest.

II. Discussion

A. Joel’s Claims

This court reviews de novo the grant of a motion for summary judgment. Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 558 (1st Cir. 2010). Typically, this court will reverse a district court’s grant of summary judgment “only if, ‘after reviewing the facts and making all inferences in favor of the non-moving party ..., the evidence on record is sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.’ ” Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008) (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)). The presence of cross-motions does not alter this general standard. “Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Barnes v. Fleet Nat’l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004) (quoting Wightman v. Springfield Terminal Ry., 100 F.3d 228, 230 (1st Cir. 1996)).

The FTCA provides a limited congressional waiver of the sovereign immunity of the United States for tortious acts and omissions committed by federal employees acting within the scope of their employment. Domínguez v. United States, 799 F.3d 151, 153 (1st Cir. 2015) (citing 28 U.S.C. §§ 1346(b)(1), 2645). Under the statute, the United States may be held civilly liable in the same manner and to the same extent as a private individual under like circumstances. Solís-Alarcón v. United States, 662 F.3d 577, 582 (1st Cir. 2011) (quoting Abreu-Guzmán v. Ford, 241 F.3d 69, 75 (1st Cir. 2001)). The FTCA is strictly construed in favor of the federal government. Holloway v. United States, 845 F.3d 487, 489 (1st Cir. 2017).

The FTCA exempts intentional torts from its sovereign immunity waiver but expressly allows actions against the United States for claims of “ ‘assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution’ arising out of ‘acts or omissions of investigative or law enforcement officers of the United States Government.’ ” Solis-Alarcón, 662 F.3d at 583 (quoting 28 U.S.C. § 2680(h)). The “law of the place” where the alleged act or omission occurred governs actions under the FTCA. Calderón-Ortega v. United States, 753 F.3d 250, 252 (1st Cir. 2014) (citing 28 U.S.C., § 1346(b)(1)). Here, then, we look to Puerto Rico tort law.

1. False Arrest/False Imprisonment Claim

Joel alleges the district court erred in granting summary judgment for the government and dismissing his false arrest and false imprisonment claims under the theory that an arrest made pursuant to an arrest warrant issued with probable cause is conditionally privileged and forecloses his false arrest and false imprisonment claims. He argues that in so holding the district court misapplied Puerto Rico law, specifically the Puerto Rico Supreme Court’s holding in Valle v. Commonwealth of Puerto Rico, 157 D.P.R. 1 (2002). According to Joel, applying Puerto Rico law would have required him to merely prove that the agents acted negligently, he suffered damages, and his damages were caused by the agents’ negligent actions. Joel argues that he satisfied his burden of proof under this test. He stresses that the agents’ negligent actions consisted of failing to corroborate whether the person depicted in Deal 105 was Joel by comparing the photograph in Joel’s employee file obtained in August 2010 with the video recorded of Nieves-Diaz participating in Deal 105 in July 2010. This, in turn, improperly caused the return of an indictment and issuance of an arrest warrant against Joel.

Under Puerto Rico law, false arrest and false imprisonment claims have identical elements, therefore courts treat them as identical causes of action. Abreu-Guzmán, 241 F.3d at 75. Thus, for the sake of simplicity we refer to Joel’s claims for false arrest and false imprisonment as one for false arrest. A claim for false arrest arises, as defined by the Puerto Rico Supreme Court, when “[a] person, whether or not a law enforcement officer, may by himself or through another one unlawfully detain or cause the unlawful detention of another person. In both cases, said person would be liable for damages if said action is tortious or negligent.” Ayala v. San Juan Racing Corp., 12 P.R. Offic. Trans. 1012, 1021, 112 D.P.R. 804 (1982). For the claim to go forward, it is essential that the individual performing the arrest lack reasonable cause for believing that the arrestee committed a felony. Abreu-Guzmán, 241 F.3d at 75 (noting that false arrest and false imprisonment claims “focus on whether the arresting officer ‘lacked reasonable cause for believing that [the suspect] committed a felony’ ” (alteration in original) (quoting Harrington v. United States, 748 F.Supp. 919, 933 (D.P.R. 1990))).

In Rodriguez v. United States, 54 F.3d 41 (1st Cir. 1995), this court considered for the first time a false arrest claim under Puerto Rico law, based on the execution of a valid arrest warrant against the wrong person. There, a Puerto Rican woman who had been arrested by federal agents on the mistaken assumption that she was the person identified in a valid warrant, sued under the FTCA for false arrest. The plaintiff had the same name, social security number, birthplace, birthdate, and general physical features (with some slight discrepancies) as the person named in the warrant. Id at 42-43. In addition, both women had a sister with the same name and their parents were deceased. Id. In determining the applicable law, this court noted that “careful research ha[d] disclosed no reported Puerto Rico Supreme Court decision addressing [the issue]” and pointed out that “[a]s a general matter, however, the Puerto Rico Supreme Court has conformed its limited ‘false arrest’ jurisprudence to common law principles.” Id. at 45. “Accordingly, consistent with our longstanding practice in cases where the Puerto Rico court has not diverged from common law principles, ... we adopt[ed] the Restatement (Second) of Torts, §§ 35-45A, 112-36, as the appropriate framework” for analysis of the false arrest claim at issue in Rodriguez. Id. (citations omitted). Under that framework, generally “an arrest conducted pursuant to a valid warrant is conditionally privileged, and no false arrest liability lies against the officers responsible.” Id (citing Restatement (Second) of Torts §§ 118,122 (1965)).

The “conditional privilege” doctrine protects officers from liability if the arrestee was:

(a) ... a person sufficiently named or otherwise described in the warrant and [was] reasonably believed by the [officer] to be, the person intended, or
(b) although not such person, ... knowingly caused the actorfe] to believe [her] to be so.

Id. at 46 (alterations in original) (quoting Restatement (Second) of Torts § 125). Accordingly, an officer “is privileged to arrest the person to whom the name [in the warrant] applies with complete accuracy, although the [officer] may have reason to suspect that a mistake has been made, and that the person, though accurately named, is not the person intended.” Id. (alterations in original) (quoting Restatement (Second) of Torts § 125 cmt. f). Applying this doctrine, this court concluded in Rodriguez that the officer had acted reasonably inasmuch as the arrestee had similar or identical physical and personal characteristics as the person named in the warrant and, thus, “the United States was entitled to rely on the privilege which attached to the arresting deputy marshals as a complete defense to liability for false arrest.” Id. at 46^7.

The facts in this case are similar to those in Rodriguez. Here, Joel was arrested by federal agents pursuant to a valid arrest warrant that had his name, on the mistaken assumption that he was the person who had committed the crime. Joel essentially concedes that if Rodriguez is still good law, his arrest would have been conditionally privileged and the government would not be liable for false arrest. He argues, however, that Rodriguez is no longer good law after the Puerto Rico Supreme Court case of Valle, which, according to him, binds us to reach a different conclusion. The government, on its part, argues that Valle is clearly distinguishable and does not change the scenario outlined in Rodriguez.

In Valle, an arrest warrant was issued against one “John Doe I.” 157 D.P.R. at 6. Law enforcement agents went into Valle’s residence to execute the warrant allegedly issued against him (which named “John Doe I”) for violations of the Puerto Rico Controlled Substances Act. Id. The news media was present during the arrest operation, which was broadcast by television networks in Puerto Rico and the United States, and Valle was identified as a drug dealer. Id. at 10-11. Valle was arrested and remained incarcerated for three days until he was able to secure bond. Id. at 7. During the preliminary hearing, an undercover agent stated that Valle was not the person with whom he had engaged in the drug transaction underlying the arrest warrant. Id. The judge found no cause to prosecute Valle and dismissed all charges pending against him. Id. Valle then filed a false arrest claim against the Commonwealth of Puerto Rico. Id. At trial, the Commonwealth introduced as evidence a surveillance report that described “John Doe I” as approximately 21 years old, weighing approximately 130 pounds, and standing about 5’5” tall. Id. at 8. Valle, however, was 28 years old, about 6’0” tall, and weighed around 180 pounds. Id. The undercover agent testified at trial that after the drug transaction took place, he did not personally participate in Valle’s identification process or in the operation that led to his arrest; thus, he was not at the scene to identify Valle. Id. at 9. The undercover agent tried to justify Valle’s arrest on the fact that he “had a yellow Ford Splash truck that was registered under his name in the Department of Transportation and Public Works, and that this vehicle was similar to the one driven by the person •with whom [the undercover agent] actually made the transaction.” Id. Another witness testified that he showed the undercover agent the picture of Valle that was on file in the Department of Transportation and Public Works and that the undercover agent told him he bore some resemblance to the person he had dealt with. Id

In Valle the Puerto Rico Supreme Court reiterated the elements of a tort claim under Puerto Rico law, but clarified that it needed to “strike a fair and appropriate balance between the right of the State to act vigorously in the investigation and prosecution of criminal causes and the right to liberty of our fellow citizens.” Id at 22-23 (emphasis omitted). There, the court distinguished between situations in which a suspect’s identity is clear and the suspect is thus identified by his or her name, and those situations in which all that is available is a nickname or physical description of the suspect. Id. at 21-22. The court clearly stated that in the latter, which was the situation present in Valle, officers will be found liable for false arrest if they are negligent by failing to take the necessary steps to validate the suspect’s identity. Id. at 24. The court then concluded that, inasmuch as the identification efforts made in Valle consisted of writing down a license plate number of a truck, checking who it belonged to in the Department of Transportation and Public Works files, and showing a picture of the truck owner to the undercover agent (without then following up when the agent raised a red flag that the man in the picture “had some resemblance” with the man that participated in the drug transaction), the agents involved in the operation that led to Valle’s arrest “did not fully comply with the[ir] obligation.” Id. at 23 (emphasis omitted). They “took the ‘easiest way out’; in other words, they made an extremely minimum effort, ‘as if to get it over with,’ to carry out an identification procedure they had a duty to follow thoroughly.” Id.

Valle is silent, however, as to what circumstances would lead to a finding of negligence, and thus liability, in cases where an arrest warrant adequately identifies and names a suspect, such as in the instant appeal, where the arrest warrant did not rely on a nickname or description to identify the subject, but rather explicitly named “Joel Díaz Nieves.” Thus, contrary to Joel’s contentions, Valle is not controlling and does not alter our holding in Rodriguez.

Our post-Valle decision in Solís-Alarcón, 662 F.3d 577, also supports our conclusion that Rodriguez is still good law. In Solís-Alarcón, agents of the Drug Enforcement Administration (“DEA”) and Puerto Rico police officers went to Solis’s residence to arrest an individual, who they had “ample reason to believe” had engaged in drug transactions, and a warrant had been issued for his arrest. 662 F.3d at 579. The agents believed they would find the individual at Solis’s house, based on events that occurred earlier in the year. Id. Although the agents had no warrant to search the house, they searched it looking for the individual and seized a sport utility vehicle believed to have been used in a drug crime. Id. at 580. The individual was nowhere to be found. Id. Solis and his wife sued the government and DEA agents asserting tort claims against the United States for the agents’ conduct under the FTCA. The district court dismissed their claim. On appeal, this court applied the common law approach discussed in Rodriguez and affirmed, finding that the officers were not liable because they had acted under the reasonable belief that the suspect was inside the house. Id. at 583-84. We found Rodriguez to be consistent with Valle, and held that “[although] Puerto Rico imposes liability for fault or negligence that causes injury, ... protecting law enforcement agents for reasonable mistakes is common.” Id. at 583 (citing Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009)). We “assumed that Puerto Rico tort law would not impose personal liability for mistaken arrests where the officers would be protected ... by qualified immunity” inasmuch as an opposite position might raise “a significant question” of “whether any local court could impose damage liability on federal officers where they would be exempt in a federal lawsuit and whether Congress under the FTCA would expect the federal government to shoulder such liability.” Id. at 583-84 (citations omitted).

Under Rodriguez and Solís-Alar-cón, and consistent with the statements made in Valle regarding the need to balance the right to compensation with the interest or duty of investigating criminal causes, we hold that the arresting officers had reasonable belief that they were arresting Joel pursuant to a valid arrest warrant based on probable cause. Thus, his arrest was conditionally privileged, which forecloses his false arrest claim.

2. Malicious Prosecution Claim

Joel seems to argue that the district court also erred in dismissing his malicious prosecution claim. According to him, viewing all the facts and drawing all reasonable inferences in the light most favorable to him would have required the district court to deny summary judgment as to this claim. He points out that since July 2010 the FBI possessed a video recording of Nieves-Vélez participating in Deal 105 and the FBI also obtained Joel’s photograph in August 2010, when the FBI got his personnel record from the Puerto Rico Department of Corrections to verify that Joel was indeed a corrections officer. Thus, Joel argues, the FBI could have compared the two images prior to September 21, 2010, when the indictment was issued. By failing to do so, his argument goes, the FBI was negligent, submitted “false/incorrect evidence” to the grand jury, and caused an indictment to be improperly obtained, which gives rise to a malicious prosecution claim. We disagree.

Under Puerto Rico law, to prove a malicious prosecution claim, the moving party must show that officers “acted with malice and without probable cause, defined as ‘a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.’ ” Abreu-Guzmán, 241 F.3d at 75 (quoting Lora-Rivera v. Drug Enforcement Admin. Dep’t of Justice, 800 F.Supp. 1049, 1051-52 (D.P.R. 1992)). To succeed on a malicious prosecution claim, the claimant must prove four elements: “(1) that a criminal action was initiated or instigated by the defendants; (2) that the criminal action terminated in favor of plaintiff; (3) that defendants acted with malice and without probable cause; and (4) that plaintiff suffered damages.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Gonzalez Rucci v. U.S. I.N.S., 405 F.3d 45, 49 (1st Cir. 2005)). “The third element may also be described as two separate elements because plaintiff must show both that the defendant acted with malice and that he acted without probable cause.” Rivera-Marcano v. Normeat Royal Dane Quality, 998 F.2d 34, 37 (1st Cir. 1993) (emphasis in the original) (citing Vince v. Posadas de P.R., S.A., 683 F.Supp. 312, 315 & n.4 (D.P.R. 1988)). “For purposes of malicious prosecution, Puerto Rico courts equate malice with bad faith.” Paret-Ruiz v. United States, 827 F.3d 167, 178 (1st Cir. 2016) (quoting Barros-Villahermosa, 642 F.3d at 59). “[A] grand jury indictment definitively establishes probable cause” unless “law enforcement defendants wrongfully obtained the indictment by knowingly presenting false testimony to the grand jury.” González Rucci, 405 F.3d at 49.

Joel’s claim for malicious prosecution falters on the third element because he has failed to show that officers acted without probable cause and with malice. To the contrary, the record shows that Joel was named in the indictment and, “[generally, a grand jury indictment definitively establishes probable cause.” Id. Although “courts have recognized an exception if law enforcement defendants wrongfully obtained the indictment by knowingly presenting false testimony to the grand jury,” id., nothing in the record suggests that the FBI agents knowingly presented false information to the grand jury. This is buttressed by Joel’s concession that the FBI determined the actual identity of the impersonator after Joel’s arrest, which supports the government’s argument that the agents did not “knowingly present” false testimony to the grand jury. In addition, although Joel claims that the agents were negligent by failing to compare the images prior to providing evidence to the grand jury, mere negligence does not equate to malice. See Jiménez v. Sánchez, 60 P.R. 406, 409-10 (1942), 1942 WL 6900 (P.R.) (“[T]he element of malice, so essential in [malicious prosecution] cases, should not be confused with mere negligence, inasmuch as the characteristic of negligence is ‘inadvertence,’ or an absence of an intent to injure, whereas the characteristic of malice is the improper purpose to vex, prejudice, damage, [and] injure.” (quoting with approval the lower court’s judgment)). Accordingly, the district court did not err in summarily dismissing Joel’s malicious prosecution claim.

B. The Relatives’ Claims

We now turn to consider the district court’s entry of judgment on the pleadings dismissing the claims of Joel’s relatives. This court reviews the grant of judgment on the pleadings de novo. Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). A motion under Fed. R. Civ. P. 12(c) for judgment on the pleadings is treated like a Rule 12(b)(6) motion to dismiss. Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007). Accordingly, “the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom.” Pérez-Acevedo, 520 F.3d at 29. We will affirm a dismissal on the pleadings if it appears that the non-movant could prove no set of facts that would entitle him or her to relief. Mass. Nurses Ass’n v. N. Adams Reg’l Hosp., 467 F.3d 27, 31 (1st Cir. 2006) (citing Rivera-Gómez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)).

Joel’s relatives allege that the district court erroneously dismissed their derivative claims under Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141. They concede that their derivative claims are tied to the viability of Joel’s FTCA claims and thus will suffer the same fate as Joel’s, but argue that because Joel’s claims were improperly dismissed and thus should be reinstated, their derivative claims should also be reinstated. In addition, Joel’s relatives allege that the district court also erred by dismissing their independent claims for damages allegedly suffered due to the agents’ “excessive use of force” during the execution of Joel’s arrest warrant. We address these arguments in turn.

Under Article 1802 of the Puerto Rico Civil Code—Puerto Rico’s General Tort Statute— “[a] person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.” Id. The Puerto Rico Supreme Court has held that individuals who are harmed because a close relative or loved one is tortiously injured may invoke Article 1802 as a vehicle for prosecuting a cause of action against the tortfeasor. Santini Rivera v. Serv. Air, Inc., 137 D.P.R. 1, 10 (1994). To prevail on such a claim, “a plaintiff must prove (1) that he has suffered emotional harm, (2) that this harm was caused by the tortious conduct of the defendant toward the plaintiffs relative or loved one, and (3) that the defendant’s conduct was tortious or wrongful.” Méndez-Matos v. Municipality of Guaynabo, 557 F.3d 36, 57 (1st Cir. 2009). This cause of action is wholly derivative and depends on the viability of the underlying claim of the relative or loved one. Caban Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 12-13 (1st Cir. 2007). Because, as previously discussed, the district court correctly dismissed Joel’s claims, the derivative claims of his relatives were also properly dismissed.

Finally, Joel’s relatives argue that the following facts give rise to an independent claim for damages under Article 1802 of the Puerto Rico Civil Code due to the agents’ alleged excessive use of force when executing Joel’s arrest warrant: “immediately upon opening the door of the house[, Saul] was forcibly taken out and at gunpoint made to stand against a wall” while his family watched; at some point his pants fell to the ground and he “was left naked outside his house in full view of his family and neighbors”; Aida was also forced (at gunpoint) to face a wall; Giovanny “saw how he was targeted by [ ] dozens of laser sights on his head and chest upon exiting the balcony of his house”; they all witnessed how the agents surrounded their house and “feared for their life, their physical integrity,” and those of their loved ones. These facts fail to state a plausible claim for relief.

Joel’s relatives did not cite any authority suggesting that the manner in which Joel’s arrest warrant was executed was tortious under Puerto Rico law and would result in private liability. They merely referenced Pueblo v. Alcalá Fernández, 9 P.R. Offic. Trans. 430, 437, 109 D.P.R. 326 (1980), for the proposition that “the conduct of the intervening officer will be evaluated under the reasonable person standard based on the circumstances surrounding his/her intervention.” Moreover, the pleadings show that the agents knew Joel was a corrections officer and carried a weapon. In fact, upon noticing the presence of third parties in the premises of the house, Joel grabbed his weapon. Furthermore, Joel’s relatives did not allege that physical contact occurred between them and the arresting officers. In sum, the actions taken by the arresting officers were based on their reasonable (and correct) belief that Joel was armed, Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (stating that “arresting officers are permitted [when conducting in-home arrests] to take reasonable steps to ensure their safety”), and Joel’s relatives reference nothing beyond the general Puerto Rico negligence statute to support their claims, Bolduc v. United States, 402 F.3d 50, 58 (1st Cir. 2005) (noting that a plaintiff bringing suit under the FTCA must show that “state law would impose liability on a private person in the same or similar circumstances” and rejecting the contention that “stating ... a claim for negligence ... automatically mean[s] that liability would attach under [state] law”). Accordingly, the district court did not err in dismissing the independent claims asserted by Joel’s relatives.

III. Conclusion

For the reasons stated above, the orders of the district court granting partial summary judgment for the government and entering judgment on the pleadings are affirmed.

Affirmed.

      . Because Joel Diaz-Nieves and Giovanny Diaz-Nieves are brothers with the same last name, and their parents have similar last names, we refer to plaintiffs-appellants by their first names in order to distinguish them. We mean no disrespect in doing so.

      . “Operation Guard Shack” has been described in detail in other cases arising out of the same operation. See United States v. Diaz-Castro, 752 F.3d 101 (1st Cir. 2014); United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014); United States v. Diaz-Maldonado, 727 F.3d 130 (1st Cir. 2013).

      . The complaint was amended on April 11, 2013.

      . The district court stated that because the Plaintiffs had only sued the United States and their allegations did not support constitutional violations, it would read "the complaint only to allege violations sounding in tort against the United States pursuant to the FTCA.”

      . Joel did not appeal the dismissal of his claim for negligent investigation.

      . According to Valle, while in jail, he was physically and sexually assaulted by other inmates. Valle, 157 D.P.R. at 11 n.6. He also claimed that people treated him differently after his arrest, and that he had not been able to obtain a job. Id. at 11.

      . To wit, the need "to prove (a) the occurrence of an act or omission resulting in the illegal or noncontractual act; (b) the illegal nature of said act or omission; (c) the fault or negligence of the agent; (d) the occurrence of damage; and (e) a causal relationship between the act or omission and the damage.” Id, at 14 (emphasis omitted). It also clarified that "a cause is not every condition without which the damage would not have been produced, but that which ordinarily produces it according to the general experience.” Id. at 19 (citing Toro Aponte v. Commonwealth of Puerto Rico, 42 P.R. Offic. Trans. -, 142 D.P.R. 464, 474 (1997)).

      . Such measures may include: having "the agents who supervise the undercover agents ... take pictures from a distance of the person involved in the criminal act; [following] the criminal to his or her residence or workplace”; having the undercover agent "identify the criminal from a distance, and, at the very least, if it has not been possible to fully identify the criminal, on the day of the arrest— when there is already no reason to continue protecting the identity of the undercover agent—the agent must be present in order to identify or point at the person to be arrested.” Id. at 22 (emphasis omitted).

      . Furthermore, Joel conceded at oral argument that "there is no allegation of maliciousness” here.