Rafael ORTIZ-BONILLA; Luis J. Torres-Bauzá; Juan Martín Santa-Torres; Julio Guzmán-Freire; Cristóbal Vega-Adorno; Juan Javier Hernández-Lebrón, Plaintiffs, Appellants, Fernando Martínez-Buitrago, Plaintiff, v. FEDERACIÓN DE AJEDREZ DE PUERTO RICO, INC., Defendant, Appellee.
No. 12-1022
United States Court of Appeals, First Circuit
Aug. 21, 2013.
V.
To recap, we hold that Pinnacle‘s disability policy was a component of a benefits plan governed by ERISA and that the applicable standard of review for benefits claims under the plan is de novo. Applying that standard to the evidence currently in the record, we cannot determine whether Sun Life justifiably rejected Gross‘s disability claim on the basis of the surveillance video and the likelihood of symptom embellishment, particularly relating to her right arm.
We therefore vacate the judgment appealed from and remand the case to the district court, with directions that it remand the matter to Sun Life for proceedings consistent with this opinion. The insurer, as plan administrator, will have the opportunity to address the concerns that we have identified, i.e., the significance of the video evidence in assessing Gross‘s limitations and the veracity of her self-reported and observed symptoms. Gross, in turn, must be given the opportunity to respond. Before the district court enters its remand order, it should hear from the parties on whether to allow the record to be supplemented beyond those specific inquiries. We leave to the district court‘s discretion whether to retain jurisdiction while the supplemental administrative process goes forward. We take no view as to the outcome of the further proceedings to be held on remand.
So ordered. Each party to bear its own costs.
Albéniz Couret-Fuentes, with whom Lee R. Sepulvado-Ramos, Jorge A. Galiber-Sánchez, and Sepulvado & Maldonado, PSC were on brief, for appellee.
Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.
THOMPSON, Circuit Judge.
In this case, we are called upon to referee a dispute between a group of chess players and their opponent, the Puerto Rico Chess Federation. Having come to a stalemate over events leading up to and during a chess federation meeting, the chess players filed suit against the federation in Puerto Rico Superior Court, alleging violations of their rights protected by the United States and Puerto Rico constitutions and Puerto Rico law. The chess federation removed the case to federal court pursuant to
Background
Appellants Rafael Ortiz-Bonilla, Luis José Torres-Bauzá, Juan Martín Santa-Torres, Julio Guzmán-Freire, Cristóbal Vega-Adorno, and Juan Javier Hernández-Lebrón (collectively “the Chessplay
Every two years, FAPR elects a Board of Directors in charge of the administration of the affairs of the organization. The election of interest in this case was scheduled to take place at the ordinary meеting scheduled for January 2011. On November 7, 2010, one of the Chessplayers, Cristóbal Vega-Adorno, submitted his candidacy for FAPR President in the upcoming election. The next day, ten FAPR members submitted a petition calling for an extraordinary meeting on November 20, 2010, to amend FAPR‘s constitution and restructure its organization administratively and fiscally.
FAPR‘s then-administrator, Vance Berríos, sent a message to the group e-mail address “ajedrezpr@yahoo.com” (it is not entirely clear which members subscribed to this group e-mail address). Berríos‘s message contained a notification written by FAPR‘s then-President, Omar Añeses Bocanegra, summoning all active members to a special meeting to be held on November 20, for the purpose of amending the FAPR constitution. Añeses‘s message contained the text of the proposed amendments and a section titled “The Right to Participate in Meetings” that featured excerpts from the FAPR constitution pertaining to membership, voting rights, and new members. Five members, including three of the Chessplayers, responded to Añeses twice, challenging the validity of the extraordinary meeting. Añeses did not respond to those messages.
When several members of FAPR, including some of the Chessplayers, arrived at the extraordinary meeting they were barred from participating. Añeses excluded those members claiming they were not active members in good standing and denied permission to other members wanting to renew their memberships on the spot in order to participate in the meeting. And so the meeting was held without those members, with a quorum of sixty-four active members (fifteen members appeared via proxy). The proposed amendments were approved and the FAPR constitution was amended.
A. The First Case
Unwilling to proceed like pawns, a few weeks later, on December 10, 2010, the Chessplayers filed a Request for Injunction against FAPR in the Superior Court of Puerto Rico, seeking invalidation of the November 20 meeting and the newly adopted constitutional amendments. This request alleged FAPR violated rights guaranteed to its members under the Constitution of the United States, the Constitution of Puerto Rico, and the General Corporations Law of Puerto Rico. FAPR‘s counterplay was to remove the case to the Federal District Court of Puerto Rico.
The Chessplayers moved to remand, arguing lack of federal jurisdiction and in the alternative, appropriate application of the doctrine of abstention. Characterizing their claims under the United States Constitution as passing references that merely presented an alternative theory for relief, the Chessplayers relied predominantly on issues of Puerto Rico law and described their claims as Commonwealth law issues that in no way depended on the resolution of any substantial federal issues. Alternatively, the Chessplayers asked the district court to abstain from adjudicating any substantial federal questions and instead re
The district court denied the Chessplayers’ request for remand, ruling they had pled a claim under the United States Constitution, and also denied their request for abstention. The Chessplayers moved to partially vacate the district court‘s order denying remand, again arguing lack of subject matter jurisdiction; the district court denied this motion. Soon after that, the Chessplayers filed a motion to amend their first request for injunction, voluntarily dismissing the federal claims the district court found in their first case. But, the district court denied this motion as well.
B. The Second Case
Knowing they could not win by resigning, the Chessplayers filed a second Request for Injunction against FAPR again in the Superior Court of Puerto Rico. This second request alleged the same facts as the first, but omitted all claims of violations of rights guaranteed by the United States Constitution. The Chessplayers’ complaint explicitly waived any claims they might hаve had under the United States Constitution.
Like the first round, FAPR removed the second case to federal court arguing that it contained identical facts, claims, and parties as the first case, and so the district court had subject matter jurisdiction over the second case and supplemental jurisdiction over the related Puerto Rico law claims therein.1 FAPR argued the Chessplayers filed this second case in an attempt to divest the district court of the jurisdiction it previously asserted over the first case.
C. The Consolidated Cases
The next day, FAPR moved to consolidate the cases, and the district court granted its request. FAPR then filed an answer to the Chessplayers’ second complaint asserting there was no viable cause of action against them because as a private association FAPR was not a state actor and thus was entitled to the court‘s deference regarding its private determinations. The Chessplayers moved to vacate the consolidation but the district court denied their motion. In response, the Chessplayers moved to remand the second case, stressing all federal claims in the second case were removed and expressly waived,2 so there was no federal subject matter jurisdiction warranting removal.
Although the second case had already been removed and consolidated with the first case, FAPR filed a petition with the court the following day to enter an order retaining removal jurisdiction over the second case under the All Writs Act, and/or, in the alternative, enjoining the Chessplayers from prosecuting the second case in state court under either the Anti-Injunction Act or the All Writs Act. The district court denied the Chessplayers’ request for remand of the second case, and found moot
The Court shall not remand to state court consolidated case 11-1208. Said case presents identical facts and claims to the instant casе, and was filed subsequent to this court sustaining the removability of the present case. Plaintiffs, hence, have attempted to thwart this court‘s removal jurisdiction by filing the second case. Removal of 11-1208 is hence proper under the All-Writs Act in order for this court to sustain its jurisdiction. (emphasis added).
The Chessplayers then filed a motion for leave to file an interlocutory appeal regarding the district court‘s denial of their request to remand the second case; the district court denied this motion.
Finding themselves in a closed position, the Chessplayers moved for voluntary dismissal of their United States and Puerto Rico constitutional claims for lack of case or controversy, as both parties initially agreed that there were insufficient allegations to establish state action for the purposes of federal jurisdiction. Ignoring the issue of state action for the moment, FAPR opposed dismissal of the federal claims, asserting the Chessplayers were simply trying to somehоw divest the district court of jurisdiction or find a way to have the case returned to state court. The district court denied the Chessplayers’ motion.
FAPR then moved for summary judgment dismissing the consolidated cases, arguing its conduct did not constitute state action and the Chessplayers’ Puerto Rico law claims did not warrant judicial intervention into the affairs of FAPR as a private association, and they failed to establish the four criteria required for an award of preliminary injunction. The Chessplayers opposed, arguing for summary judgment in their favor on what they asserted was now a request for permanent injunction. The district court considered FAPR‘s motion as it applied to the Chessplayers’ request for a permanent injunction, ultimately granting summary judgment in favor of FAPR, and dismissed the Chessplayers’ claims under the United States and Puerto Rico constitutions premised on state action by FAPR. As to the Chessplayers’ Puerto Rico law claims, the district court determined that FAPR‘s actions did not warrant judicial intervention and dismissed the claims. The district court‘s order did not include any discussion of the requirements for permanent injunction beyond success on the merits. Checkmated, the Chessplayers now appeal the district court‘s grant of summary judgment, arguing both cases should have been remanded to the Puerto Rico court for lack of subject matter jurisdiction. As to the merits of their claims, they do not appeal the district court‘s dismissal of their claims under the United States and Puerto Rico constitutions, but assert their Commonwealth claims should have been decided, on the merits, in their favor. We have jurisdiction over this appeal pursuant to
Discussion
We divide our analysis into two parts. In the first we discuss the issues concerning federal subject matter jurisdiction, and then address the district court‘s dismissal of the Chessplayers’ Puerto Rico law claims.
A. Federal Subject Matter Jurisdiction
The Chessplayers generally assert that both cases belonged in the Puerto Rico court and not federal district court. FAPR contends the district court properly denied remand of both cases. To resolve this issue, we must determine whether the district court had federal subject matter
When a civil action is originally filed in state court, removal to federal court is proper only if the action could have initially been brought in federal court.
The jurisdictional question is determined from what appears on the plaintiff‘s claim, without reference to any other pleadings. Templeton Bd. of Sewer Comm‘rs v. Am. Tissue Mills of Mass., Inc., 352 F.3d 33, 37 (1st Cir.2003). There are two types of actions that may come within federal question jurisdiction. The first category “involves direct federal questions; that is, suits in which the plaintiff pleads a cause of action that has its roots in federal law (say, a claim premised on the United States Constitution or on a federal statute).” R.I. Fishermen‘s Alliance, 585 F.3d at 48. These cases, which constitute the “vast majority” of cases brought under the general federal question jurisdiction of the district courts, are those “in which fedеral law creates the cause of action.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Where a complaint “is so drawn as to seek recovery directly under the Constitution or laws of the United States,” the federal court must entertain the suit. Bell v. Hood, 327 U.S. 678, 681 (1946); see also Ortiz De Arroyo v. Barcelo, 765 F.2d 275, 279 (1st Cir.1985).
If a claim does not allege a federal cause of action, “we must inquire into whether some element of the [plaintiff‘s] claim depends on the resolution of a substantial, disputed question of federal law.” Templeton, 352 F.3d at 36. These constitute the second (and more controversial) category of cases, those with an “embedded federal question,” meaning suits in which the plaintiff pleads a state-law cause of action that necessarily turns on some construction of federal law. Id. at 37 (citing Merrell Dow Pharm. Inc., 478 U.S. at 808-09); Almond v. Capital Props., Inc., 212 F.3d 20, 23 (1st Cir.2000). These are cases where the issue is governed by state law, but “a federal issue
1. The First Case
The first request for injunction, the Chessplayers argue, should have been remanded back to the Puerto Rico court for lack of federal subject matter jurisdiction. According to the Chessplayers, the first case merely mentioned the United States Constitution and relied predominantly on Puerto Rico law claims that did not depend on the resolution of a federal question. They further assert any references made to the United States Constitution were only alternative legal theories for their Puerto Rico law claims. FAPR contends that on its face, the first case alleged violations of federal constitutional rights and there is nothing therein to suggest the Chessplayers intended to limit their claims to Puerto Rico law.3
FAPR effected removal of the first case pursuant to
The Chessplayers’ complaint first asserted FAPR “receives public funds from the Government of the Commonwealth of Puerto Rico, currently amounting to $200 Thousand a year, for the public purpose of carrying out programs to quantitatively and qualitatively organize, further, and develop chess in Puerto Rico” and Puerto Rico public schools. According to the Chessplayers, the actions of FAPR board members (attributable to the organization) amounted to state action “because of the funds that the Commonwealth of Puerto Rico contributes annually to the FAPR.” The complaint went on to allege:
23. In addition to the right of the plaintiff and the other members of FAPR to vote in the assembly that is the subject of this request, their right to attend and participate in the same was also violated; without considering whether or not they would be allowed to vote at the relevant time. The above violated the right to freedom of speech and to freedom of association of the co-plaintiffs guaranteed by the Constitution of the Commonwealth of Puerto Rico and the Constitution of the United States of America. . .
37. The series of arguments contained in this petition, and specially the elements just described, illegally injured
the right to vote, and the rights of freedom of speech and of free association of the above-mentioned members of the FAPR. These are rights that are guaranteed by the Constitution of the Commonwealth of Puerto Rico and the Constitution of the United States of America.... 48. If the remedy granted herein is not granted, plaintiffs will suffer serious and irreparable harm as members of the FAPR, consisting of the fact that they will lose the right of direct vote and the exercise of their freedom of expression and of association in all of the matters to be considered in assemblies of the FAPR, including decisions with an impact on the use of public funds that the institution receives as a direct allotment from the PR Legislative Assembly; and particularly including the right to vote directly for the president and the other members of the Board of Directors of the FAPR every two years; and the right of freedom of expression and freedom of association guaranteed by the Constitution of the Commonwealth of PR and the Constitution of the United States of America. (emphasis added).
These paragraphs plainly allege state action violations of speech and association rights guaranteed by the Constitution of the United States, claims “premised on the United States Constitution.” R.I. Fishermen‘s Alliance, 585 F.3d at 48. The Chessplayers “seek recovery directly under the Constitution” of the United States, and their federal question appears on the face of their request. Bell, 327 U.S. at 681. Accordingly, the federal courts must entertain the suit. See id.; see also W. Side Belt R.R. Co. v. Pittsburgh Constr. Co., 219 U.S. 92, 99 (1911) (explaining an assertion of a right under the Constitution of the United States necessarily raises a federal question).
It is immaterial that a claimant in retrospect views her federal claims as surplus, or after removal, moves to strike the federal claims. See Ching v. Mitre Corp., 921 F.2d 11, 13 (1st Cir.1990). The plaintiff is the “master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Here, the Chessplayers, as masters of their claim, could have avoided federal jurisdiction by relying exclusively on Puerto Rico law. See id. at 399. Thus, the Chessplayers’ decision to allege a violation of their rights under the United States Constitution opened the door for FAPR to remove the case to federal court. See id.; see also Ching, 921 F.2d at 14.
The Chessplayers argue the first case did not pose a “substantial” federal question, and any mention of the United States Constitution was merely an alternative legal theory to their state law claims. These arguments are unavailing as the Chessplayers ignore the crucial fact that their first request posed a direct fedеral question. An investigation into whether a cause of action asserts a “substantial” federal question is relevant only for state-law causes of action containing embedded federal questions. Templeton, 352 F.3d at 36 (stating that if the complaint does not allege a federal cause of action, the inquiry is then into “whether some element of the claim depends on the resolution of a substantial, disputed question of federal law“). The Chessplayers’ first request alleged violations of their rights guaranteed by the Constitution of the United States, which constituted a “direct federal question” as “a claim premised on the United States Constitution,” so we need not continue our analysis to the “substantial” question query. R.I. Fishermen‘s Alliance, 585
Next citing a handful of out-of-circuit cases and one Supreme Court case, the Chessplayers argue federal jurisdiction will not extend to cases where the federal question appears only in an alternative argument for relief. But this standard is applied to cases that assert causes of action created by state law, not direct federal question cases. Unlike the plaintiffs in the cases they cite, the Chessplayers asserted an explicit federal question, clear on the face of their first complaint, not a state-law cause of action containing an embedded federal question.4 While the Chessplayers urge us to apply these inquiries to their first case, we cannot; the “substantial” element and “alternative theory” analyses are inapplicable in the present case because the Chessplayers pled in part an explicit federal question under the United States Constitution.
Accordingly, we conclude the district court had subject matter jurisdiction over the Chessplayers’ first request for injunction, and thus could exercise supplemental jurisdiction over the Puerto Rico law claims arising from the “same nucleus of operative facts.” See BIW Deceived, 132 F.3d at 833.
2. The Second Case
As we explained, the district court denied the Chessplаyers’ motion to remand the second case and deemed removal of it from the Puerto Rico court proper under the All Writs Act,
The All Writs Act provides that the “Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
Applying these standards to this case, it is clear the district court lacked jurisdiction over the second case under the All Writs Act. The district court‘s order denying the Chessplayers’ motion to remand the second case states, “[s]aid case presents identical facts and claims to the [first] one, and was filed subsequent to this court sustaining the removability of the [first] case. Plaintiffs, hence, have attempted to thwart this court‘s removal jurisdiction by filing the second case.” The order goes on to proclaim removal of the second case “proper under the All-Writs Act in order for this court to sustain its jurisdiction.” The district court‘s order is concise, but it is clear the court deemed removal proper “under the All-Writs Act” and not any other statutory provision. The statutory requirements for removal may not be avoided by relying upon the All Writs Act and accordingly, the Act cоuld not provide the district court with jurisdiction over the second case. See id. at 33.
We also find no basis for jurisdiction pursuant to the removal statute,
Unlike the first complaint, the Chessplayers’ second request did not assert claims “premised on the United States Constitution.” R.I. Fishermen‘s Alliance, 585 F.3d at 48. No elements of their state law claims required “resolution of a substantial, disputed question of federal law.” Templeton, 352 F.3d at 36. They expressly waived any federal claims in their second request. As such, the district court was mistaken in its assertion that the second case made identical claims to the first. And thеrefore no basis for federal subject matter jurisdiction existed, and the original jurisdiction required for removal pursuant to
B. Summary Judgment
To remind the reader, FAPR‘s motion for summary judgment addressed the Chessplayers’ initial request for a preliminary injunction. In their opposition to FAPR‘s motion, the Chessplayers clarified their position: they were now seeking a permanent, not a preliminary, injunction and they claimed entitlement to summary judgment on that request (the ultimate claim in their consolidated cases).
In ruling on FAPR‘s motion for summary judgment the district court found no state action and dismissed all of the Chessplayers’ claims premised on such a theory under the United States and Puerto Rico constitutions. The court also dismissed all claims based on Puerto Rico law. Citing Finn v. Beverly Country Club, 289 Ill.App.3d 565, 225 Ill.Dec. 528, 683 N.E.2d 1191, 1193 (1997), the district court noted that the conduct of a voluntary association is subjeсt to judicial review only when it fails to exercise powers consistent with its own rules. It then concluded that after reviewing the submitted documents, the constitution and bylaws of FAPR, none of the actions taken by FAPR were done in an arbitrary or capricious manner, and thus judicial intervention was not warranted.
On appeal, the Chessplayers do not challenge the district court‘s dismissal of their constitutional claims premised on state action. They focus only on their Commonwealth claims, arguing that FAPR‘s actions preceding and during the extraordinary meeting violated the FAPR constitution and the General Corporations Law of Puerto Rico. They reprise their argument to the district court that FAPR‘s actions were clearly arbitrary and capricious and inconsistent with its own internal rules.
1. Standard of Review
We review the district court‘s grant of summary judgment de novo. Shafmaster v. United States, 707 F.3d 130, 135 (1st Cir.2013). And we view the record in the light most favorable to the Chessplayers,
The issuance of a permanent injunction would be appropriate only if the district court made four findings: “(1) plaintiffs prevail on the merits; (2) plaintiffs would suffer irreparable injury in the absence of injunctive relief” (i.e., an injury for which there is no adequate remedy at law); “(3) the harm to plaintiffs would outweigh the harm the defendant would suffer from the imposition of an injunction; and (4) the public interest would not be adversely affected by an injunction.” Asociación de Educación Privada de P.R., Inc. v. García-Padilla, 490 F.3d 1, 8 (1st Cir.2007).
2. Relevant Law
Many jurisdiсtions, including Puerto Rico and Illinois, consider the constitution and bylaws of a not-for-profit organization to constitute a contract between the organization and its members. Diamond v. United Food & Commercial Workers Union Local 881, 329 Ill.App.3d 519, 225 Ill.Dec. 784, 768 N.E.2d 865, 870 (2002); Universidad del Turabo, 126 D.P.R. 497. These are a unique type of contract in which the member, either expressly or implicitly, “agrees to abide by all rules and regulations adopted by the organization.” Diamond, 263 Ill.Dec. 784, 768 N.E.2d at 869 (quoting Blackshire v. Nat‘l Ass‘n for the Advancement of Colored People (NAACP), Inc., 285 Ill.App.3d 561, 220 Ill.Dec. 638, 673 N.E.2d 1059, 1061 (1996)) (internal quotation marks omitted); see Lee v. Snyder, 285 Ill.App.3d 555, 220 Ill.Dec. 715, 673 N.E.2d 1136, 1139 (1996) (quoting Engel v. Walsh, 258 Ill. 98, 101 N.E. 222, 223-24 (1913)); Universidad del Turabo, 126 D.P.R. 497. The constitution or bylaws may provide procedures to resolve issues that arise within the organization and might also expressly endow authority in an officer or director to interpret the constitution or bylaws. See, e.g., Finn, 225 Ill.Dec. 528, 683 N.E.2d at 1193-94; Edwards v. Ind. State Teachers Ass‘n, 749 N.E.2d 1220, 1225 (Ind.Ct.App.2001). Where this sort of authority is granted, the members, through their contractual relationship with the organization, agree that the authorized officer has the power to interpret and the members may be bound by those interpretations; accordingly, the court gives deference to the authorized officer‘s interpretations. Diamond, 263 Ill.Dec. 784, 768 N.E.2d at 870; see Finn, 225 Ill.Dec. 528, 683 N.E.2d at 1194.
That is not to say there is no place for judicial intervention. The organization‘s bylaws and constitution are a contract, and thus by virtue, can be breached. Diamond, 263 Ill.Dec. 784, 768 N.E.2d at
In our de novo review we must examine the record before us to determine whether the district court properly awarded summary judgment to FAPR on the Chessplayers’ request for injunction. The heart of the Chessplayers’ argument is that FAPR acted in an arbitrary and cаpricious manner, based on unauthorized or erroneous interpretations of the organization‘s constitution. They do not detail the four specific requirements for permanent injunction, but instead focus their argument as a challenge to the district court‘s determination on the merits (which is where the district court ended its analysis). The Chessplayers’ appeal is limited to the district court‘s grant of summary judgment on the following issues: exclusion of certain members from the extraordinary meeting; proxy voting; freezing renewals and new memberships; and notification of the extraordinary meeting only though e-mail. We take each of the Chessplayers’ assigned claims of error in turn.
a. Exclusion of Existing Members
The Chessplayers challenge FAPR‘s exclusion of certain members from participating in the extraordinary meeting on the grounds they were not “active” members. They specifically take issue with former president Añeses‘s definition for “active” membership, which he enforced prior to and at the extraordinary meeting. The definition of “active” imposed by Añeses allowed members who were “up to date with the payment of their membership fees” and “also participated in at least one chess tournament sponsored by the Federation during the immediately preceding twelve months” to participate in the November 20 meeting. Citing Article III of the FAPR constitution, the Chessplayers assert this definition of “active” member is contrary to the organization‘s rules and regulations. FAPR maintains the exclusion of certain members was based in sound reasoning.
We look to the FAPR constitutional provisions regarding member voting in extraordinary meetings. Article VI(2) of the FAPR constitution states that in meetings “whether ordinary or extraordinary, only active members whose annual dues are current may participate. The same day of the meeting—and before it begins—a member may bring his membership current.” Article III requires FAPR members to “remain active attending the meetings, participating in the activities, and paying the assigned dues.” There are no
The constitution states the “Board of Directors will govern with the best criteria and will be the supreme body, with the exception of the assembly.” It goes on to grant the President powers to “act as the Federation‘s official representative and will make whatever decisions he/she needs to take when the Board of Directors or the Assembly is not meeting.” But FAPR‘s constitution contains no provision granting the President or any other Board Member the power to interpret the terms of the constitution. Accordingly, there is no authorized officer whose interpretations require our deference. See Diamond, 263 Ill.Dec. 784, 768 N.E.2d at 870.
The definition of “active” employed by Añeses draws from the FIDE (the International Chess Federation) handbook, specifically the section pertaining to the criteria for ranking the top FIDE chess players. Six times each year, the Qualification Commission of FIDE prepares a list of the top active players; a player will not be included on the list if he or she is inactive. The handbook describes inactivity as when a player has played “no rated games in a one year period.” Añeses‘s definition of “active” combined the FIDE handbook‘s description of inactivity for inclusion in the top players list with Article III of the FAPR constitution.10
But the FAPR constitution does not require the adoption of terms in the FIDE handbook pertaining to ratings, nor does it state that terms as described by FIDE must or may be employed by FAPR. FIDE is mentioned only twice in the FAPR constitution: Article II(b) states FAPR will “divulge the game of chess” as regulated by the FIDE, and Article IV(a) states FAPR “must be affiliated with the F.I.D.E.” There is no specific provision in the FAPR constitution for the implementation of FIDE terminology or definitions. Rather, Article III defines “the members” of FAPR without any reference to the FIDE. Thus, Añeses‘s incorporation of the FIDE description of “inactivity,” taken from the criteria for inclusion in the top rated plаyers list, to the FAPR constitutional provisions for member participation in meetings was not grounded in any FAPR constitutional provision. Nor was his interpretive action authorized by any power enunciated in the constitution, so we owe it no deference. See Diamond, 263 Ill.Dec. 784, 768 N.E.2d at 870. As such, FAPR “fail[ed] to exercise power consistently with its own internal rules,” and so its “conduct is subject to judicial review.” Finn, 225 Ill.Dec. 528, 683 N.E.2d at 1193.
Applying de novo review, we conclude the Chessplayers successfully demonstrated this action was arbitrary and warranted judicial intervention.
b. Proxy Voting
The minutes from the extraordinary meeting clearly state that fifteen of the sixty-three member quorum voted by proxy. The Chessplayers assert the inclusion of votes by proxy was not authorized by any FAPR provision and was inconsistent with the Rules of Parliamentary Procedure adopted in Article VI of its constitution. FAPR contends inclusion of votes by proxy was permissible.
We turn to Article VI of the FAPR constitution—“About the Meetings“—which states that meetings “whether ordinary or extraordinary . . . will be guided by Roberts Rules of Order.” Robert‘s Rules state, “[p]roxy voting is not permitted in ordinary deliberative assemblies unless the laws of the state in which the society is incorporated require it, or the charter or by-laws of the organization provide for it.” RONR (11th ed.), p. 428-29.
It is clear that the November 20 meeting was not an ordinary meeting, rather it was an extraordinary meeting. And Robert‘s Rules regarding proxy voting pertain specifically to “ordinary deliberative assemblies” and are silent as to extraordinary meetings or deliberative assemblies. As the November 20 meeting was not an ordinary meeting, the limitations on proxy voting enunciated in Robert‘s Rules cannot be applied as though it were an ordinary deliberative assembly. While the FAPR constitution is silent on the specific issue of proxy voting, the inclusion of proxy votes at the extraordinary meeting does not appear to be inconsistent with the FAPR constitution, as it incorporates Robert‘s Rules of Order. The Chessplayers have not shown they prevail even on the mеrits of this claim, and we conclude the district court did not err in its grant of summary judgment on this issue.
c. Freezing Renewals
The Chessplayers argue FAPR violated its constitution by prohibiting existing members from renewing their memberships up to or on the day of the extraordinary meeting, thereby preventing them from participating. FAPR plays around this argument, and admits the constitution provides for payment of dues on the day of an assembly. They contend Article VI(2)‘s participation provision may be limited based on the previously discussed “active” membership requirement as defined by former president Añeses.
We turn again to Article VI(2) of the FAPR constitution, the provision pertaining to member voting: “The same day of the meeting—and before it begins—a member may bring his membership current.” It is clear from the text of Article VI(2) that existing members who wished to bring their membership current on November 20 were entitled to do so. As we already determined, Añeses‘s adoption of the FIDE definition of “active” to bar member participation in meetings was not supрorted by the FAPR constitution, and was an exercise of power inconsistent with the organization‘s internal rules. See Diamond, 263 Ill.Dec. 784, 768 N.E.2d at 870. We believe this claim has merit.
d. Barring New Members
Next, the Chessplayers allege FAPR violated its own constitution by refusing to allow new members to join the organization. FAPR counters that admission as a member is not automatic, as provided in the constitution. The Chessplayers point to Articles V and VI(1) of the FAPR constitution to support their claim that new members could participate in the meeting if they joined no later than November 30. But the Chessplayers’ citations are to provisions that pertain to meetings for Board of Directors elections, not extraordinary meetings, the type of meeting at issue in this case. FAPR correctly refers to Article III(b), which states any person with knowledge of chess or interest in learning may “apply for admission” and “acquire it by majority decision” of the Board. The November 20 extraordinary meeting was not for the election of Board of Directors; thus FAPR‘s refusal to allow new members tо apply and participate in the extraordinary meeting was not inconsistent with its internal rules. See Diamond, 263 Ill.Dec. 784, 768 N.E.2d at 870; Finn, 225 Ill.Dec. 528, 683 N.E.2d at
e. Notification by E-mail
The last issue for our review is the notification FAPR provided for the extraordinary meeting. The Chessplayers claim they never authorized FAPR to provide them notice via e-mail, and so notification of the extraordinary meeting sent only by e-mail violated Puerto Rico corporations law. We note that this is the only argument, on appeal, for which the Chessplayers invoke a specific provision of Puerto Rico law. So we apply the relevant provision from Puerto Rico law for the analysis of this issue.
It is undisputed that FAPR‘s former administrator Berríos sent the notification for the extraordinary meeting only by e-mail, not to individual e-mail addresses, but rather to the group address “ajedrezpr@yahoo.com.” FAPR stops short of arguing its members consented to receiving notice via e-mail and instead merely cites prior instances of notification for meetings sent by e-mail.11 It argues only that e-mail correspondence was customary. However, we find nothing in § 3661 to support the contention that prior receipt or customary practice constitutes consent. Because FAPR did not have the consent of its members to issue e-mail only notification, we find the Chessplayers have carried their burden to show success on the merits, that this was indeed arbitrary and capricious action by FAPR.
As previously noted, because the distriсt court concluded its analysis after finding no merit to any of the Chessplayers’ claims, it became unnecessary for the court to discuss any of the three remaining permanent injunction elements. Because we disagree in part with that conclusion, remand is necessary to allow the district court to determine if the Chessplayers have satisfied the remaining elements for the issuance of a permanent injunction. See McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 357, 369 (3d Cir.2007) (where the district court erroneously “denied injunctive relief only on the basis that [plaintiff] did not demonstrate a likelihood of success on the merits, and [plaintiff] raises appellate arguments limited to that basis,” deciding only the merits issue and remanding for a consideration of the remaining factors); Idaho Watersheds Project v. Hahn, 187 F.3d 1035, 1037 (9th Cir.1999) (where the district court erred in concluding that the appellants failed to establish a likelihood of success on the merits, remanding for the district court to consider the possibility of irreparable injury and whether the balance of hardships tips in favor of the appellants); Black & Decker, Inc. v. Hoover Serv. Ctr., 886 F.2d 1285, 1296 (Fed.Cir.1989) (same); Tatro v. Texas, 625 F.2d 557, 558 n. 1 (5th Cir.1980) (same). In our review of the record before us, we note that the Chessplayers, in opposing FAPR‘s motion for summary judgment, did file a statement of facts citing to affidavits of individual Chessplayers which discuss how the arbitrary actions harmed their interest
Conclusion
To recap, we find the district court had federal subject matter jurisdiction over the first case. The district court did not have subject matter jurisdiction over the second case, and we remand it to the district court with instructions to remand it to the Commonwealth court where it was originally filed. Utilizing our de novo review, we conclude the district court correctly granted summary judgment to FAPR in part. However, the Chessplayers showed success on the merits for three of their appealed claims, and we remand those claims to the district court for further consideration in accordance with this court‘s decision. Each party shall bear its own costs.
O. ROGEREE THOMPSON
UNITED STATES CIRCUIT JUDGE