United States Court of Appeals
For the First Circuit
No. 25-1210
DANTE A. DIFRONZO,
Plaintiff, Appellee,
v.
CITY OF SOMERVILLE; JOSEPH CURTATONE, Mayor;
DAVID FALLON, Chief of Police; BERNARD COTTER, Police Captain,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Gelpí, Rikelman, and Aframe,
Circuit Judges.
Leonard H. Kesten, with whom Alexander Kesten, Michael V.
Glennon, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief, for appellants.
Peter A. Brown, with whom Brown Legal PLLC, Timothy M. Burke,
Jared S. Burke, and Law Offices of Timothy M. Burke, were on brief, for appellee.
September 21, 2026
AFRAME, Circuit Judge. This appeal primarily involves
the question of when a party may conform its pleadings to the trial
evidence. The Federal Rules of Civil Procedure afford parties the
right to know in advance the claims and defenses asserted against
them and the grounds on which those claims and defenses rest.
Thus, absent consent, a party may not try unpleaded issues without
amending the complaint. That principle provides the basis for
partially reversing the judgment in this employment dispute.
Plaintiff Dante DiFronzo, a City of Somerville,
Massachusetts, police officer, was terminated from his public
employment for alleged on-duty misconduct. DiFronzo fought the
termination on two fronts. He sued Somerville Mayor Joseph
Curtatone, Somerville Police Chief David Fallon, and Somerville
Police Captain Bernard Cotter (together, the "defendants")
claiming, inter alia, that they terminated his employment in
retaliation for his exercise of constitutional rights, 42 U.S.C.
§ 1983, and interfered with his advantageous relations with the
City of Somerville in violation of Massachusetts law. He also
challenged the termination via an arbitration proceeding commenced
under the City's collective bargaining agreement with the police
union of which DiFronzo was a member.
While DiFronzo's case proceeded in federal court, the
arbitrator ordered DiFronzo reinstated to his position,
determining that there was no just cause for his termination.
- 2 -Mayor Curtatone responded to that order by placing DiFronzo on
paid administrative leave. DiFronzo never sought to amend his
complaint to allege liability based on Curtatone's decision to
place him on paid leave but nevertheless was permitted to present
evidence at trial about the paid-leave decision as a basis for
damages. Although the defendants consistently objected that the
paid-leave issue could not be a basis for damages because it was
not alleged in the complaint, the district court permitted the
jury to consider the paid-leave decision for that purpose. That
was error. The motive for the paid-leave decision was an unpleaded
issue; absent an amended complaint or the defendants' consent, the
issue should not have been tried. Accordingly, we reverse the
judgment insofar as it awarded DiFronzo damages based on
Curtatone's decision to place him on paid leave.
I. BACKGROUND
The dispute between DiFronzo and the defendants
commenced over a decade ago. In the winter of 2015, DiFronzo
worked as a Somerville police detective and was assigned to
investigate a burglary in which an individual named Henry Alvarez
was a suspect. DiFronzo needed to locate Alvarez and used an
informant named Jonathan Machado to help him do so.
Machado was independently trying to locate Alvarez
because Machado believed that Alvarez had stolen marijuana from
him. Machado told DiFronzo that he intended to harm Alvarez if he
- 3 -found him. Nevertheless, DiFronzo continued to solicit Machado's
help and provided Machado with information about Alvarez's
location. Machado eventually found Alvarez and attacked him with
a machete. DiFronzo was also responsible for investigating the
attack on Alvarez but did not immediately inform his police
colleagues about his contacts with Machado, including Machado's
desire to locate and harm Alvarez. DiFronzo arrested Machado for
assaulting Alvarez about three weeks after the incident and still
did not disclose his involvement with Machado.
Eventually, DiFronzo obtained search warrants for
Machado's telephone as part of the investigation into the attack
on Alvarez. A Massachusetts state trooper conducted the search.
In reviewing the phone data, the trooper saw text messages between
Machado and DiFronzo suggesting that DiFronzo had helped Machado
find Alvarez, even after Machado disclosed his intent to harm
Alvarez. The trooper reported this information to the Middlesex
County District Attorney's Office and the Somerville Police
Department.
After this disclosure, on September 29, 2016,
then-Somerville Police Chief David Fallon placed DiFronzo on
administrative leave while the District Attorney's Office
investigated DiFronzo's conduct. On March 23, 2017, the District
Attorney's Office provided the Somerville Police Department with
a copy of a so-called Brady letter about DiFronzo, with a
- 4 -coversheet indicating that the District Attorney's Office would
provide the letter to defense lawyers in any case in which DiFronzo
would testify.1 The letter described DiFronzo's misconduct in
relation to the Alvarez assault, including that DiFronzo had made
material omissions in relevant police reports.
Just over two months later, on May 31, 2017, Chief Fallon
further penalized DiFronzo by suspending him for five days without
pay because he concealed his role in the attack on Alvarez. Fallon
notified DiFronzo that he was also recommending to Mayor Curtatone
that DiFronzo's employment be terminated. In August 2017, while
the termination recommendation was pending, Chief Fallon assigned
Captain Bernard Cotter to formally investigate DiFronzo's conduct.
On October 26, 2017, while Captain Cotter's
investigation proceeded, DiFronzo wrote to Mayor Curtatone
complaining about certain practices at the Somerville Police
Department that he thought "should be brought to the attention of
an outside public body." For example, DiFronzo alleged that the
Police Department had not discharged other employees who had
engaged in misconduct that DiFronzo believed was more serious than
the allegations against him. DiFronzo specified that one of these
1 The letter is named after the United States Supreme
Court's seminal opinion in Brady v. Maryland, 373 U.S. 83 (1963), which imposed a due process obligation on the government to
disclose favorable information to the defense in criminal cases.
- 5 -officers was spared discipline because he was "personally close"
to Curtatone.
A month later, on November 27, 2017, DiFronzo wrote
again to Mayor Curtatone alleging that the City was retaliating
against him for his earlier letter by keeping him "in limbo" on
mandatory leave while Chief Fallon's termination recommendation
remained pending. In his second letter, DiFronzo stated that he
was compelled to report the alleged "violations of law" within the
Police Department to the Massachusetts Attorney General.
In December 2017, Captain Cotter completed his
investigation, which DiFronzo labeled a "sham," and concluded that
DiFronzo had violated several Somerville Police Department rules
and regulations. Chief Fallon adopted Cotter's findings and issued
amended administrative charges against DiFronzo. Mayor Curtatone
then hired a local attorney to hold hearings to examine the
misconduct allegations against DiFronzo. Those hearings lasted
from February to April 2018, and they concluded with the attorney
recommending DiFronzo's discharge. On May 8, 2018, Curtatone
ordered DiFronzo's termination from the Police Department. Soon
after, Curtatone and Fallon were quoted in a Boston Globe article
about DiFronzo's firing as accusing him of having committed a
crime.
Following the termination, DiFronzo appealed the
decision through neutral arbitration as provided for in the
- 6 -collective bargaining agreement between the City and the police
union. The arbitration began in October 2018 and lasted until
June 2021.
While the arbitration was pending, on March 26, 2021,
DiFronzo filed a complaint in Middlesex Superior Court alleging,
inter alia, claims against the defendants for terminating his
employment (1) in retaliation for his exercise of his First
Amendment rights under 42 U.S.C. § 1983, and (2) for tortious
interference with contractual and advantageous relations in
violation of Massachusetts law. The complaint noted the existence
of the pending arbitration proceedings but made no further
allegations about it. The defendants removed the case to federal
court.
On June 4, 2021, about three months after DiFronzo
initiated his court case and over three years since his
termination, the arbitrator released his decision. The arbitrator
ordered DiFronzo (1) reinstated to his position as a Somerville
Police Department detective but (2) denied him back pay for the
three-year period since his termination. In other words, the
arbitrator found that while there was no just cause for DiFronzo's
termination, there was a sufficient basis to have denied DiFronzo
his pay from May 2018 through June 2021. The City challenged the
arbitration decision in state court, and that case apparently is
ongoing.
- 7 -Following the arbitration decision, the Middlesex
District Attorney's Office issued a second Brady letter stating
that, "[b]arring extraordinary circumstances," it would not call
DiFronzo to testify in any future case. After this letter issued,
Mayor Curtatone instructed the new police chief (Chief Fallon had
retired at this point) to place DiFronzo on paid administrative
leave until further notice. DiFronzo received notice of that
decision on July 1, 2021. Curtatone left office in January 2022.
The new mayor, Katjana Ballantyne, kept DiFronzo on paid leave.
DiFronzo's placement on paid leave denied him the opportunity to
earn overtime and other additional compensation opportunities.
In January 2023, the defendants moved for summary
judgment in the federal court case. In their motion, the
defendants noted that DiFronzo never amended his complaint "to
include any claims related to the City's decision to place [him]
on paid . . . leave in July 2021" following the arbitration
decision that ordered his reinstatement. Thus, the defendants
asserted it was not their "responsibility to recast [DiFronzo's]
claims as alleged" and that they would instead address them "as
defined by the four corners of the complaint." The district court
agreed with the defendants on this point, stating that it would
"not consider evidence concerning events that occurred after the
filing of the complaint, as plaintiff has not sought leave to
supplement or amend the complaint." Nevertheless, the court denied
- 8 -the defendants' summary judgment motion on the First Amendment
retaliation claim and the tortious interference claims because
there were disputed facts related to the motives for the
termination decision.2
Prior to trial, the parties filed a joint memorandum.
In relevant part, DiFronzo's portion of the memorandum described
the facts surrounding the decision to place him on paid leave after
the arbitration decision, which he characterized in a later filing
as "highlight[ing]" the City's "retaliatory animus" against him.
The defendants also recited their version of the City's actions in
response to the arbitration decision but noted that this
information was provided "[f]or purposes of background" because
the "issues before the court . . . based on what was pleaded" were
limited to the termination decision. The defendants further noted
that the trial should be limited to the decision to terminate
DiFronzo's employment because "other issues that postdate that
decision were . . . not encompassed by the pleadings."
Much of the trial focused on the defendants' motivations
for DiFronzo's termination. Mayor Curtatone's decision to place
DiFronzo on paid leave post-arbitration first arose during
Curtatone's direct examination in the defense case:
2 The district court granted the defendants summary
judgment on other claims and still others were dismissed at trial. We discuss only the First Amendment and tortious interference
claims because those are the only claims that reached the jury.
- 9 -Defense counsel: Do you recall that after
the arbitrator's decision,
the District Attorney's
[Office] sent a second
letter to the department, a
Brady letter?
Curtatone: I do recall that. I do
remember that.
Defense counsel: Do you recall they said
they were never going to
call [DiFronzo] to testify?
Curtatone: I do recall it clearly,
yes.
Defense counsel: And as a result of the
second Brady letter, did
you then tell [the]
Chief . . . to put
[DiFronzo] on []paid
leave . . . ?
Curtatone: Paid leave, yes.
On cross-examination, Curtatone was briefly questioned again on
this topic:
Plaintiff's [D]o you remember reviewing
counsel: the arbitrator's decision
that was issued with regard
to the discipline imposed
upon Detective DiFronzo?
Curtatone: Yes.
Plaintiff's And when the decision came
counsel: out, were you still mayor?
Curtatone: Yes.
Plaintiff's And were you involved in
counsel: the decision to not allow
Detective DiFronzo to
- 10 -return to work as ordered
by the arbitrator?
Curtatone: Yes.
Plaintiff's Again, [DiFronzo] had
counsel: complained about your
behavior, not only are you
making the decision to
terminate him, now
subsequent to that, you're
making the decision to not
allow him to return to
work, correct?
Curtatone: Correct.
Whether the jury could consider Mayor Curtatone's
decision to place DiFronzo on paid leave as a basis for awarding
damages came to a head during the charge conference. In a
discussion about the damages instruction, the defendants noted
that DiFronzo "never amended" to say that the decision to place
him on paid leave after the arbitration decision was unlawful, and
they therefore argued that the jury could not award damages for
that decision because "it's a different case."
DiFronzo disagreed, claiming that the paid-leave issue
was "part and parcel of what is before this . . . jury." DiFronzo
amplified Mayor Curtatone's testimony that "he was involved in the
decision not to allow Detective DiFronzo to be reinstated" and
that Curtatone is "a defendant in this case." The defendants
replied, "all you have to do is look at the
- 11 -complaint . . . . [T]his is why you need to amend if you want to
make a new claim."
Ultimately, the district court permitted the jury to
award damages based on Mayor Curtatone's post-arbitration decision
to place DiFronzo on paid leave. The court, however, asked the
jury to specify any damages it was awarding for Curtatone's
paid-leave decision so that if "an appellate court concludes that
it was wrong to have anything after July 2021[,] [the date of the
paid-leave decision], we will have a record of what the jury's
verdict was."
The jury returned a verdict that was largely in
DiFronzo's favor. It found the defendants liable for First
Amendment retaliation and tortious interference with advantageous
relations claims. For conduct occurring before July 2021, the
jury awarded no lost compensation damages and $300,000 in emotional
distress damages. For conduct occurring after the paid-leave
decision, it also awarded $200,000 in lost compensation damages
and $300,000 in emotional distress damages against Mayor
Curtatone.
The defendants subsequently moved for a new trial,
renewing the contention that it was improper to award damages based
on Mayor Curtatone's paid-leave decision because DiFronzo
"fail[ed] to amend his pleadings to include allegations" about
- 12 -post-arbitration events. The court denied the motion and rejected
the argument:
It is true, as a general matter, that
pleadings must be amended in order to assert
new claims or defenses. However, new
developments, or new facts relevant to claims
alleged in an original complaint, are
routinely adduced through discovery and trial
testimony. A common example is the ongoing
occurrence of damages (such as medical
expenses) arising from a personal injury.
Here, plaintiff did not amend the pleadings,
instead electing to present post-2021 evidence
to the jury as part of an ongoing harm arising
from the claim he initially pleaded, rather
than as an independent claim. And at trial,
defendant Curtatone's testimony on
cross-examination provided a link between his
2021 decision not to reinstate plaintiff and
plaintiff's prior, protected
conduct. . . . A reasonable jury could
therefore award damages for harm arising in
and after 2021 as a result of defendant
Curtatone's conduct.
II. DISCUSSION
On appeal, the defendants renew the argument that the
district court incorrectly allowed the jury to award damages based
on Mayor Curtatone's decision to place DiFronzo on paid leave in
July 2021. Before addressing that issue, we consider the
defendants' additional argument that the district court should
have excluded from evidence the arbitration decision ordering
DiFronzo's reinstatement.
- 13 -A. The Arbitration Decision
We review a preserved challenge to an evidentiary ruling
for an abuse of discretion. Lech v. von Goeler, 92 F.4th 56, 63
(1st Cir. 2024). An abuse of discretion occurs "when a material
factor deserving significant weight is ignored, when an improper
factor is relied upon, or when all proper and no improper factors
are assessed, but the court makes a serious mistake in weighing
them." Id. (quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling
Co., 161 F.3d 77, 83 (1st Cir. 1998)). An error of law is an abuse
of discretion. Id. at 64.
Prior to trial, the defendants sought to exclude
evidence about the arbitration decision. They argued that such
evidence was unduly prejudicial because the federal case was about
DiFronzo's termination, which occurred before the arbitration
decision issued.
The district court partially disagreed. It ruled that
understanding the arbitration decision was necessary context for
the jury to evaluate the effect of the termination decision on
DiFronzo's potential damages. Because the arbitrator ordered
DiFronzo reinstated, that order ended the period for which DiFronzo
went unpaid due to his termination. Nevertheless, because the
arbitrator declined to order back pay, the termination decision
still resulted in DiFronzo losing pay for the three-year period
between the termination decision and the reinstatement order.
- 14 -Thus, the court concluded that "to make sense of the damages
claim," the jury needed to know "that the arbitrator ordered
[DiFronzo] reinstated with pay but . . . that he not receive back
pay." The court held, however, that it would preclude the jury
from hearing the arbitrator's reasoning for his decision because
such evidence would be unduly prejudicial.
On appeal, the defendants argue against the limited
admission of the arbitration decision on two grounds. First, they
contend that the district court misapplied the Supreme Court's
decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974),
and second, that the court abused its discretion in admitting the
evidence under Fed. R. Evid. 403. We reject both arguments.3
In Gardner-Denver, the Supreme Court held that a
plaintiff who seeks to vindicate his rights under a
nondiscrimination clause of a collective-bargaining agreement may
also pursue a claim under a federal anti-discrimination statute.
Id. at 49. In reaching that conclusion, the Court provided
guidance on when a court may substantively use an arbitrator's
decision in deciding the merits of a subsequent statutory claim.
See id. at 60 & n.21. In this regard, the Court gave guideposts
to consider in deciding the "weight to be accorded an arbitral"
3 DiFronzo contends that the defendants did not adequately
preserve the Gardner-Denver argument in the district court. We
bypass the preservation issue because even if we assume the
argument was preserved, it fails.
- 15 -ruling. Id. at 60 n.21. These include: (1) whether the provisions
of the collective bargaining agreement "conform substantially with
Title VII"; (2) "the degree of procedural fairness in the arbitral
forum"; (3) the "adequacy of the record with respect to the issue
of discrimination"; and (4) "the special competence of particular
arbitrators." Id. The Court noted that where an arbitral decision
"gives full consideration to an employee's Title VII rights, a
court may properly accord it great weight," especially when the
issue presented "is solely one of fact." Id.
The defendants contend that the district court abused
its discretion because it admitted the arbitration decision
without analyzing the Gardner-Denver factors. This argument
misunderstands the purpose of these factors. They guide a district
court's evaluation of arbitration decisions as substantive
evidence of discrimination when adjudicating a similar case under
a federal anti-discrimination law. Here, the court did not admit
the arbitration decision as substantive evidence of retaliation.
Rather, the court admitted only the arbitrator's bottom-line order
of reinstatement without back pay to provide context for the jury
in calculating damages for the termination decision. The court,
however, prevented the jury from hearing the arbitrator's
reasoning precisely because it did not want the jury's substantive
judgment to be influenced by that reasoning. Because the
Gardner-Denver factors are directed toward the "weight" that
- 16 -should be afforded an arbitration decision in deciding the merits
of a discrimination claim, those factors are inapposite here given
the limited, non-substantive purpose for which the court admitted
the arbitration decision. See id.
For similar reasons, the district court acted well
within its discretion by admitting the arbitration decision for a
limited purpose under Fed. R. Evid. 403. That Rule requires
exclusion of evidence when the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice. United
States v. Villa-Guillen, 102 F.4th 508, 518 (1st Cir. 2024). "A
district court . . . is afforded especially wide latitude in
making Rule 403 determinations, which are disturbed only
rarely -- and in extraordinarily compelling circumstances."
United States v. Armenteros-Chervoni, 133 F.4th 8, 28 (1st Cir
2025) (citation modified).
Courts have sometimes excluded arbitral awards on Rule
403 grounds when a party seeks to introduce the arbitrator's
decision as substantive evidence in support of the claim before
the court. See, e.g., Jackson v. Bunge Corp., 40 F.3d 239, 246
(7th Cir. 1994). Indeed, the District of Massachusetts did so
recently in Hayes v. Town of Dalton because "[t]he arbitrator's
decision address[ed] questions that [were] at the core of this
case and there [was therefore] a risk that a jury would afford the
arbitrator's decision undue weight." No. 3:21-cv-30055, 2025 WL
- 17 -918684, at *6 (D. Mass. Mar. 25, 2025). The defendants argue that
we should apply the Hayes court's reasoning here to find an abuse
of discretion.
Again, the defendants ignore the limited purpose for
which the district court admitted the arbitration decision in this
case. The parties had not agreed on the compensatory damages that
would follow from concluding that DiFronzo was unlawfully
terminated. Thus, the jury was responsible for determining both
liability and, if necessary, damages. The jury would be unable to
make a damages calculation without knowing that the arbitrator had
ordered DiFronzo reinstated but also had declined to order back
pay for the time that he was out of work because of the termination
decision. In other words, knowledge of this aspect of the arbitral
decision was necessary so the jury would not inadvertently over- or
undervalue damages. The court admitted the evidence only for this
purpose. And to make that point clear, the court provided the
following limiting instruction:
The arbitration . . . and this lawsuit are
kind of proceeding on parallel paths. The
arbitrator made a decision under the
collective bargaining agreement.
You are being asked to make a somewhat
different decision or set of decisions
[regarding] whether Mr. DiFronzo's
constitutional rights were violated or whether
the defendants improperly interfered with his
employment relationship.
- 18 -Those are different issues with different
standards. The evidence in the two
proceedings overlaps quite a bit, but you are
to make your own separate independent
decision. Your decision could align with the
arbitrator or it could be completely different
or it could be different in part. It's totally
up to you, but you should not assume that the
arbitrator got it right, that he had better
information or evidence than you had or had
better judgment.
This instruction effectively dispels the defendants'
concern that admitting the arbitration decision "invited the jury
to substitute [the arbitrator's] legal and factual conclusions for
their own." We have noted before that a "careful limiting
instruction given by the trial court" to the jury "as to the
limited purpose for which [evidence] was to be considered" can
have a "salutary effect" that alleviates the impact of unfair
prejudice. United States v. Smith, 292 F.3d 90, 100-01 (1st Cir.
2002). That is the circumstance here. The jury was told not to
use the arbitration decision in deciding the merits of DiFronzo's
claims, and we presume that jurors follow instructions.4 See
4 Despite failing to object contemporaneously to the
limiting instruction quoted above at trial, the defendants now
attempt to challenge it on appeal. Specifically, they critique
the instruction's wording, claiming that it misstates the jury's
role by suggesting that the jury should decide whether it agreed
with the arbitration decision and that the instruction, taken as
a whole, encourages the jury to "align" with the arbitration
decision. Even assuming that this challenge is preserved, the
claim fails. We review an objection to the form and wording of an instruction for an abuse of discretion. United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009). The instruction plainly told the jury that it was to make a "separate and independent decision" on
- 19 -United States v. Freeman, 208 F.3d 332, 344 (1st Cir. 2000). Given
the limited purpose for which the arbitration decision was admitted
and the clear instruction delineating that purpose, we see no abuse
of discretion in allowing the jury to learn the basics of the
arbitral decision so that it could understand that decision's
relationship to potential damages arising from DiFronzo's
termination.5
B. The Paid-Leave Decision
We turn now to whether the district court erred in
permitting the jury to award damages based on Mayor Curtatone's
July 2021 decision to place DiFronzo on paid leave following the
arbitration decision ordering his reinstatement. The defendants
argue that the paid-leave decision was not part of the case because
the claims before it, even though it learned of the arbitrator's
ruling on related claims. We do not see how the district court
could have been clearer in explaining that the jury was not to
give weight to the arbitration decision in conducting its own
evaluation of the evidence.
5 On appeal, the defendants identify a hodgepodge of
testimony which they argue should have been excluded as
inadmissible hearsay. These arguments are unpreserved because the defendants either made no objection at all during the trial or
offered only a general objection specifying no grounds. See United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994) (stating
that a party does not preserve a claim regarding the admission of evidence by offering only a general objection to the district
court). Thus, to the extent any review is available, it would be
for plain error. Id. at 168 n.15. The defendants, however, have
not addressed any of the plain-error factors and, in any event,
their arguments as to each identified piece of testimony are
cursory at best. We therefore deem these hearsay claims waived.
See United States v. Baxter, 179 F.4th 73, 91 (1st Cir. 2026).
- 20 -DiFronzo filed his complaint prior to the arbitration decision and
never sought to amend the complaint to add allegations that the
subsequent paid-leave decision was unlawful. DiFronzo responds
that the complaint was sufficient to encapsulate the paid-leave
decision, and in any event, he was not required to amend the
complaint because the paid-leave decision related to the overall
employment dispute addressed in the complaint; the paid-leave
decision was explored in discovery; and Curtatone was not
prejudiced from having to defend the paid-leave decision at trial.
Resolution of this issue turns on two rules of Federal
Civil Procedure, Rules 8 and 15(b).6 Rule 8(a) describes the
requirements for stating a claim for relief. Rule 15(b) describes
when unpleaded issues may be presented at trial.
We begin with Rule 8. In the federal system, a pleading
asserting a claim need only provide "a short and plain statement
of the claim showing that the pleader is entitled to relief." Fed.
R. Civ. P. 8(a)(2). And a court construing a complaint should do
so "generously, paying more attention to substance than to form."
Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1171 (1st Cir.
6 The defendants also argue that the district court's
decision to permit the jury to award damages for the decision to
place DiFronzo on paid leave following the arbitration ruling
violated their due process rights. Because we conclude that the
defendants prevail on their challenge to this aspect of the jury
verdict based on their Rule 15(b) arguments, we do not reach their due process argument.
- 21 -1995); see also Fed. R. Civ. P. 8(e). Nevertheless, a "fundamental
purpose of pleadings under the Federal Rules of Civil Procedure is
to afford the opposing party fair notice of the claims asserted
against [them] and the grounds on which those claims rest." Rinsky
v. Cushman & Wakefield, Inc., 918 F.3d 8, 17 (1st Cir. 2019)
(quoting Rodriguez, 57 F.3d at 1171). That includes the facts on
which liability is premised. Artuso v. Vertex Pharms., Inc., 637
F.3d 1, 5 (1st Cir. 2011) (stating that a complaint must include
"factual content" showing "that the defendant is liable for the
misconduct alleged" (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009))).
DiFronzo does not contend that his complaint
specifically alleges that Mayor Curtatone unlawfully placed him on
paid leave after the arbitration decision. Of course, he does not
do so because there was no arbitration decision until several
months after DiFronzo filed his complaint.
Nevertheless, DiFronzo suggests that his complaint
contained sufficient allegations to permit him to proceed to trial
on the paid-leave decision as a basis for liability because the
complaint "expressly alleged . . . that he was seeking damages for
the ongoing harm arising from [the defendants'] retaliatory
conduct." More specifically, DiFronzo relies on the following
complaint allegation as providing notice that the paid-leave
decision was a basis for liability: "The damage done to the
- 22 -[p]laintiff's reputation by his wrongful termination and media
exploitation by the [d]efendants continues to this day." DiFronzo
suggests that the "damage done . . . continues to this day"
language encapsulates everything that Mayor Curtatone did to him,
including placing him on paid leave after the partially favorable
arbitration decision.
While we read pleadings generously, see Rodriguez, 57
F.3d at 1171, DiFronzo's suggestion that the "continues to this
day" allegation encompasses Mayor Curtatone's post-arbitration
conduct takes this solicitude too far. Fairly read, DiFronzo's
pleading refers to continuing damages arising from the termination
decision and the media coverage of that decision. When DiFronzo
filed his pleading, he was still unpaid because of the termination
decision and suffered continuing financial harm from that
decision. And the alleged ongoing harm to his reputation was
caused by statements that Mayor Curtatone made to the press in
relation to the termination decision. Thus, the complaint's
reference to damages "continu[ing] to this day" refers to harm
arising from the termination decision, not the separate paid-leave
decision. As the district court recognized, both when issuing its
summary judgment ruling and when ultimately allowing the jury to
impose liability based on the paid-leave decision, there is nothing
in the complaint suggesting that DiFronzo was claiming damages
from that decision.
- 23 -DiFronzo says that even if his original complaint did
not raise the paid-leave issue, he still could raise the issue at
trial without filing a supplemental pleading. Rule 15(d) permits
a court to allow a supplemental pleading "setting out any
transaction, occurrence, or event that happened after the date of
the pleading to be supplemented." Fed. R. Civ. P. 15(d). DiFronzo
thus could have covered the pleading gap in this case by obtaining
the district court's permission to serve a supplemental pleading
setting forth the post-arbitration events, including the
paid-leave decision. Choosing not to do so was not necessarily
fatal; it meant, however, that for DiFronzo to have properly
litigated the paid-leave issue at trial, he had to comply with
Rule 15(b). See Heinkel ex rel. Heinkel v. Sch. Bd. of Lee Cnty.,
194 F. App'x. 604, 607 n.4 (11th Cir. 2006) (per curiam) (stating
that even though the plaintiff failed to adhere to Rule 15(d)'s
requirements, an unpleaded issue was properly considered at trial
because there was compliance with Rule 15(b)).
While it is preferable for the parties to seek to update
the pleadings before trial, sometimes that does not happen and
thus it "becomes necessary to adjust the pleadings to reflect the
case as it actually was litigated in the courtroom." 6A Wright &
Miller's Federal Practice & Procedure § 1491 (3d ed. 2026). "Rule
15(b) is designed to serve that purpose." Id. The Rule provides
two "quite different" procedures for conforming the pleadings to
- 24 -the trial evidence. Id. These procedures together are intended
to "avoid the tyranny of formalism"; Rule 15(b) is construed
"liberally" to achieve this objective. Id. Nevertheless, the
Rule "does not offer a failsafe for any and every faulty pleading."
Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976,
983 (4th Cir. 2015).
The first procedure appears in Rule 15(b)(1). It
authorizes a court to permit amendment of the pleadings when a
party objects that evidence introduced at trial is not within the
"issues" raised by the pleadings. See Fed. R. Civ. P. 15(b)(1).
This subsection encourages courts to "freely permit" such
amendments when doing so will aid consideration of the merits and
the objecting party has failed to demonstrate prejudice.7 Id.
Under Rule 15(b)(1), however, "a court may not sua sponte" amend
the pleadings when an objection is made; rather, a formal motion
7 Rule 15(b)(1) states in full that
[i]f, at trial, a party objects that evidence
is not within the issues raised in the
pleadings, the court may permit the pleadings
to be amended. The court should freely permit
an amendment when doing so will aid in
presenting the merits and the objecting party
fails to satisfy the court that the evidence
would prejudice that party's action or defense
on the merits. The court may grant a
continuance to enable the objecting party to
meet the evidence.
Fed. R. Civ. P. 15(b)(1).
- 25 -is required. Moncrief v. Williston Basin Interstate Pipeline Co.,
174 F.3d 1150, 1163 n.7 (10th Cir. 1999); see also 3 Moore's
Federal Practice § 15.18[2] (3d ed.).8 Thus, "when proper
objections have been made but no Rule 15(b) motion has been filed,
the lack of prejudice to a party does not provide a basis for an
amendment." Green Country Food Mkt., Inc. v. Bottling Grp., LLC,
371 F.3d 1275, 1281 (10th Cir. 2004).
Rule 15(b)(2) provides the second procedure. Unlike
Rule 15(b)(1), it does not require a party to seek to amend the
pleadings. See Fed. R. Civ. P. 15(b)(2). Rather, under Rule
15(b)(2), "[w]hen an issue not raised by the pleadings is tried by
the parties' express or implied consent, it must be treated in all
respects as if raised in the pleadings."9 Id.
8 That is because parties bear the responsibility for
articulating their claims. See Dan Ryan Builders, 783 F.3d at 985 ("It is not the responsibility of a trial court to wade through
ambiguously or incorrectly labeled allegations in pursuit of any
potential basis for awarding relief.").
9 Rule 15(b)(2) provides in full that
[w]hen an issue not raised by the pleadings is
tried by the parties' express or implied
consent, it must be treated in all respects as
if raised in the pleadings. A party may
move -- at any time, even after judgment -- to
amend the pleadings to conform them to the
evidence and to raise an unpleaded issue. But
failure to amend does not affect the result of
the trial of that issue.
Fed. R. Civ. P. 15(b)(2).
- 26 -The district court appears not to have applied Rule 15(b)
when permitting the jury to award damages based on the paid-leave
decision because it thought that, while "pleadings must be amended
in order to assert new claims or defenses," there is no such
requirement for the introduction of unpleaded factual theories of
liability. That is incorrect.
Rule 15(b) applies to an unpleaded "issue." Fed. R.
Civ. P. 15(b). In legal parlance, an "issue" is a "point in
dispute between two or more parties." Issue, Black's Law
Dictionary (12th ed. 2024). "In federal civil procedure, an issue
is a single, certain, and material point arising out of the
allegations and contentions of the parties." Id. (citation
modified). Consistent with this understanding, on a point in
dispute, the Federal Rules of Civil Procedure distinguish "issue"
from "claim" in a way that gives "issue" a more factual hue. Cf.
Vicor Corp. v. FII USA Inc., 132 F.4th 1, 6 (1st Cir. 2025)
(comparing "issue" with "claim" in the context of a 28 U.S.C.
§ 1659 action and noting that "issue" means "fundamental factual
and legal allegations").
For example, Rule 52(c) provides that
[i]f a party has been fully heard on an issue
during a nonjury trial and the court finds
against the party on that issue, the court may
enter judgment against the party on a claim or
defense that, under the controlling law, can
be maintained or defeated only with a
favorable finding on that issue."
- 27 -Fed. R. Civ. P. 52(c). Rule 52(c) therefore uses "issue" to
describe a court's determination that will resolve a "claim" under
"controlling law." See id. In other words, "issue" connotes a
subsidiary determination necessary to resolve a claim. Such
subsidiary findings often involve factual determinations.
Rule 42 draws a similar distinction. Where there is a
"common question of law or fact" in multiple actions, Rule 42(a)
permits the court to "join for hearing or trial any or all matters
at issue in the actions." Fed. R. Civ. P. 42(a)(1). And Rule
42(b) allows a court in a single action to "order a separate trial
of one or more separate issues, claims, crossclaims,
counterclaims, or third-party claims." Fed. R. Civ. P. 42(b). We
read this language to mean that "issue" is not synonymous with
"claim."
Thus, consistent with its plain meaning, "issue" as used
in the Federal Rules of Civil Procedure operates below the level
of a claim, defense, crossclaim, counterclaim, or third-party
claim. It refers to the constituent parts of a claim or defense,
including central points of factual dispute.
Caselaw applying Rule 15(b) also supports the view that
"issue" applies to central points of factual disagreement. In
Jimenez v. Tuna Vessel Granada, 652 F.2d 415 (5th Cir. 1981), the
Fifth Circuit reversed a judgment where the plaintiff brought a
- 28 -claim based on one factual predicate, but the court awarded damages
based on a different, unpleaded predicate. The plaintiff in
Jimenez sought damages based on an injury to his back by asserting
a claim that the boat was unseaworthy. Id. at 415-16. Before
trial, the plaintiff asserted a sole factual theory of
unseaworthiness, i.e., that the navigator's conduct in operating
fishing equipment rocked the boat and caused the injury. Id. at
416, 420. At trial, however, the plaintiff introduced another
factual theory for his unseaworthiness claim, i.e., that the
condition of certain other equipment and bad weather caused the
injury. Id. at 420. The district court awarded damages only on
the latter theory regarding equipment condition and bad weather.
Id. at 418. The Fifth Circuit reversed the judgment on the grounds
that Rule 15(b) was not satisfied because there was neither express
nor implied consent to try this additional factual basis for
liability. Id. at 420-22. The appellate court held that, even
though the plaintiff prevailed on his original unseaworthiness
claim, the judgment could not stand because he did so by proving
an unpleaded issue for how the boat was unseaworthy. Id.
The Fourth Circuit reached a similar conclusion in Dan
Ryan Builders, 783 F.3d 976. In that case, the plaintiff brought
a breach of contract claim asserting violations of various
provisions of an amended purchase agreement. Id. at 979. The
district court rejected the plaintiff's argument that Rule 15(b)
- 29 -permitted him to obtain damages based on the breach of a different
contract. Id. at 982-83. The court of appeals affirmed,
concluding that because there was no amendment of the pleadings or
consent from the defendant under Rule 15(b), the plaintiff could
not offer a contract other than the one he pleaded as the basis
for his breach-of-contract claim.10 Id. at 983-84.
These cases demonstrate that Rule 15(b) applies when a
party does not change the legal nature of his claim but offers a
different factual predicate for the claim. That is what DiFronzo
did here. His complaint alleges claims of retaliation for the
exercise of constitutional rights and interference with
advantageous relations based only on the termination decision; he
therefore had to comply with Rule 15(b) to try his case based on
the unpleaded paid-leave decision.
We address now whether DiFronzo complied with Rule
15(b). We first will consider Rule 15(b)(2). As a reminder, that
provision provides that an unpleaded issue must be treated in all
10 Finally, we note that sometimes litigants avail
themselves of Rule 15(b) "when it is to the party's advantage for issue-preclusion purposes to have the record show that a particular issue has been determined." 6A Wright & Miller's Federal Practice & Procedure § 1491 (3d ed. 2026) (emphasis added). And, of course, issue preclusion -- unlike claim preclusion -- is about the
relitigation of a "fact essential for rendering a judgment." Cruz Berrios v. Gonzalez-Rosario, 630 F.3d 7, 12 (1st Cir. 2010)
(quoting Gener-Villar v. Adcom Grp., Inc., 417 F.3d 201, 205 (1st Cir. 2005) (per curiam)).
- 30 -respects as if raised in the pleadings so long as the parties
provide express or implied consent to try the issue. Id.
There was no express consent here. The defendants argued
throughout this litigation that DiFronzo could not present the
paid-leave decision as a basis for damages because it was not a
pleaded issue in the complaint. The defendants made this assertion
at the summary judgment stage, when filing their pretrial
memorandum, at trial, and in post-trial motions.
That leaves us to consider whether, despite these
objections, the defendants still provided implicit consent based
on their trial conduct. We have recognized that the "trial of
unpleaded issues by implied consent is not lightly to be inferred
under Rule 15(b) in light of the notice demands of procedural due
process." In re Fustolo, 896 F.3d 76, 86 (1st Cir. 2018) (citation
modified). As such, "consent to the trial of an [unpleaded] issue
may be implied if, during the trial, a party acquiesces in the
introduction of evidence which is relevant only to that issue."
Rodriguez, 57 F.3d at 1172 (citation modified). However, "the
introduction of evidence directly relevant to a pleaded issue
cannot be the basis for a founded claim that the opposing party
should have realized that a new issue was infiltrating the case."
Id. (citation modified). Accordingly, "the record must indicate
that the parties understood that the evidence was aimed at an
unpleaded issue." Id. (citation modified).
- 31 -Here, we recognize that despite the defendants' repeated
objections to the jury considering the paid-leave issue as a basis
for liability, the defendants were the first party to introduce
trial evidence about Mayor Curtatone's decision to place DiFronzo
on paid leave after the arbitration decision. On our reading,
however, the defendants introduced evidence about the paid-leave
decision because it related to their motivation for the earlier
termination decision, which was the central trial issue based on
the pleadings. The defendants contended that the decision to
terminate DiFronzo was non-retaliatory because it was an
appropriate response to the Middlesex District Attorney's Office's
issuance of a Brady letter, which substantially limited DiFronzo's
ability to serve as a government witness in future cases.
Mayor Curtatone testified that he made the decision to
place DiFronzo on paid leave in response to the District Attorney's
Office sending an even more pointed Brady letter after the
arbitrator ordered DiFronzo's reinstatement. Thus, as presented
by the defendants, the paid-leave evidence showed consistency in
Curtatone's conduct, i.e., he acted against DiFronzo each time the
District Attorney's Office issued a Brady letter, which suggests
that the Brady letter, not retaliatory animus, motivated the
termination decision. In this sense, the paid-leave evidence was
relevant for the jury to assess motive as it related to the
allegation of unlawful termination. The defendants were not
- 32 -consenting to consideration of the paid-leave decision as a
separate basis for liability by asking Curtatone about his reasons
for placing DiFronzo on paid leave. Accordingly, the defendants
did not expressly or impliedly consent to trying the paid-leave
issue as a basis for damages.
That leaves Rule 15(b)(1), which permits the court to
allow amendment of the pleadings when a party makes an objection
that evidence is not within the issues raised in the pleadings.
As mentioned already, the defendants objected at every stage,
arguing that DiFronzo should not be allowed to obtain relief based
on a factual predicate that he did not plead. For reasons that
are not apparent to us, despite the defendants' repeated objections
throughout the case, DiFronzo did not seek to amend his complaint
at any point to resolve the pleading gap. As we stated already,
a court cannot sua sponte amend the pleadings based on a Rule
15(b)(1) objection. Supra at 25.
DiFronzo's final response is that the defendants'
conduct demonstrates that they knew the paid-leave issue was
lurking throughout the litigation, and therefore there was no
prejudice to Mayor Curtatone by requiring him to answer for his
post-arbitration conduct. There are at least two reasons why this
argument fails. First, whether there was prejudice is not
dispositive. As noted earlier, "when proper objections have been
made but no Rule 15(b) motion has been filed, the lack of prejudice
- 33 -to a party does not provide a basis for an amendment." Green
Country Food Mkt., Inc., 371 F.3d at 1281; see also Kenda Corp. v.
Pot O'Gold Money Leagues, Inc., 329 F.3d 216, 232 (1st Cir. 2003)
("A finding that the nonmoving party would not be prejudiced by an
untimely amendment does not compel a determination that the
amendment is appropriate." (citation modified)).
Second, in any event, there was prejudice. The
defendants' objections demonstrated that they were trying the case
based only on the termination decision. Adopting that strategy,
the defendants successfully moved to exclude as irrelevant the
testimony of Mayor Ballantyne, the official who replaced Mayor
Curtatone a few months after he placed DiFronzo on paid leave.
Depending on her testimony, Ballantyne could have provided an
intervening, non-retaliatory cause for DiFronzo remaining on paid
leave after Curtatone left office, which may have reduced the
damages award based on the paid-leave decision. Because DiFronzo
did not amend the pleadings to include the paid-leave decision,
the defendants did not litigate what happened after Curtatone left
office. Had DiFronzo successfully amended the pleadings, the
district court likely would have granted the defendants the
opportunity to litigate the damages, if any, that arose from the
paid-leave decision, which could have included evidence about
events after Curtatone's departure. See Fed. R. Civ. P 15(b)(1)
- 34 -(stating that the court may grant a continuance to enable the
objecting party to address the previously-unpleaded issues).
To summarize, the district court correctly observed that
"new developments, or new facts relevant to claims alleged in an
original complaint, are routinely adduced through discovery and
trial testimony." But when those new developments or facts inject
an unpleaded "issue" into a trial, as they did here, the party
relying on the unpleaded issue must satisfy Rule 15(b). Because
the defendants did not consent to the unpleaded issue being tried,
and DiFronzo did not seek leave to amend his complaint when the
defendants objected, DiFronzo failed to satisfy Rule 15(b)'s
requirements for presenting an unpleaded issue to the jury.
Therefore, the district court erred in permitting the jury to award
damages based on the unpleaded paid-leave decision.
There is one loose end. The defendants contend that
because of the "cumulative errors," the district court should have
granted a new trial. But, as is now apparent, there was only one
error -- allowing the jury to award damages based on the paid-leave
decision. The court, however, asked the jury to award separate
damages for the termination and paid-leave decisions. And the
defendants have not argued here how allowing the jury to consider
the paid-leave decision could have infected the jury's decision to
award emotional distress damages for the termination decision. We
- 35 -therefore reverse the jury's award only insofar as it awarded
damages based on the paid-leave decision.
III. CONCLUSION
For these reasons, we reverse the judgment for the
amounts awarded as lost compensation and emotional distress
damages occurring after July 2021. We remand for further
proceedings consistent with this opinion. No costs are allocated.
- 36 -