March 2, 1993     UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1196

                       FRANK B. ABBADESSA,

                      Plaintiff, Appellant,

                                v.

                   MOORE BUSINESS FORMS, INC.,

                       Defendant, Appellee.

                                           

No. 92-1197

                       ROBERT D. MARIOTTI,

                      Plaintiff, Appellant,

                                v.

                   MOORE BUSINESS FORMS, INC.,

                       Defendant, Appellee.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

           [Hon. Norman H. Stahl, U.S. District Judge]
                                                     

                                           

                              Before

                       Selya, Circuit Judge,
                                           
               Higginbotham,* Senior Circuit Judge,
                                                  
                     and Cyr, Circuit Judge.
                                           

  James H. Shulte with whom Burns,  Bryant, Hinchey, Cox &amp;  Schulte,
                                                                    
P.A. was on brief for appellants.
  
  Edward M.  Kaplan  with  whom William  D. Pa.ndolph  and  Sulloway
                                                                    
Hollis &amp; Soden were on brief for appellee.
            

                                           

                          March 2, 1993
                                           

                   

*Of the Third Circuit, sitting by designation.

          Higginbotham, Senior Circuit Judge.   This is an appeal
          Higginbotham, Senior Circuit Judge.   
                                            

from  an order of summary  judgment in favor  of defendant, Moore

Business Forms, Inc., and  against plaintiffs, Frank B. Abbadessa

and  Robert D. Mariotti.   Abbadessa and Mariotti  sued Moore for

wrongful  termination of  employment.   Moore  moved for  summary

judgment,  arguing that  Abbadessa  and Mariotti  each agreed  in

writing  at the time of  their termination to  release Moore from

any claims arising from  plaintiffs' employment or termination of

employment.  Plaintiffs opposed  the motion for summary judgment,

each  alleging that the agreement to release their claims against

Moore had been signed under economic duress.

          The United  States district  court for the  District of

New  Hampshire,  applying  New  Hampshire  law,  granted  Moore's

summary judgment motion as  to both Abbadessa and Mariotti.   The

court, in separate  orders, found, as a matter  of law, that even

if Abbadessa and Mariotti  had signed their respective agreements

under duress,  each also subsequently ratified  the agreements by

failing to repudiate them promptly and  by accepting the benefits

that flowed under the agreements.

          Because we  agree that Abbadessa  and Mariotti ratified

their respective  resignation  agreements,  we  will  affirm  the

district court's orders of summary judgment in favor of Moore.  

                               -3-
                                3

This  is a  diversity action.   Both  Abbadessa and  Mariotti are

citizens  of New Hampshire.  Moore is a Delaware corporation with

its  principal place of business in Illinois.  The district court

had subject matter jurisdiction pursuant to 28 U.S.C.   1332.  We

have appellate jurisdiction pursuant to 28 U.S.C.   1291.

                                I

Frank B. Abbadessa
                  

          Frank B.  Abbadessa began working as  an accountant for

Moore  Business Forms, Inc. in December 1973.  By 1988, Abbadessa

had advanced to the managerial position of Comptroller of Moore's

Locust  Street plant  in Dover,  New Hampshire.   On  January 19,

1988,  in a  meeting between Abbadessa,  R.J. Barth,  the General

Manager  of  the  Locust  Street plant,  and  Brian  Groves,  the

Director of Human Resources,  Moore requested Abbadessa to resign

and  to  sign a  resignation  agreement.   Under  the resignation

agreement,  Moore  would  provide Abbadessa  with  the  following

benefits   from January 19, until April 30 1988: (1) compensation

in  the  amount  of $4,611.75  per  month;  (2)  payment for  any

vacation owed Abbadessa for  1988; (3) continued participation in

Moore's Healthcare  plan, Dental Plan, and  Group Insurance Plan,

with an option to  extend participation after April 30,  1988, if

Abbadessa made quarterly  payments; and (4) payment  by Moore for

                               -4-
                                4

outplacement counseling services  to assist Abbadessa  in finding

other employment.  The agreement also provided that Abbadessa and

Moore released  each other from  any other claims  or obligations

arising  from Abbadessa'  employment  with,  and termination  by,

Moore.

          Moore  informed Abbadessa  that he  was being  asked to

resign  because  his  performance  had not  been  satisfactory.  

Further, Moore  made  clear to  Abbadessa  that he  could  either

resign with  the benefits  provided under  the  agreement or  not

resign  and  face  the possibility  of  being  fired without  any

benefits.    Abbadessa did  not  sign  the resignation  agreement

during the January 19  meeting.  He considered the  agreement for

two  weeks  and,  in  early  February,  he  returned  it  signed,

backdated to January 20.  During the interval between the January

19 meeting and  the time  in early  February when  he signed  the

agreement,  Abbadessa sought  payment  of his  vacation pay  from

Moore.    Moore  apparently  refused to  pay  any  benefits until

Abbadessa  signed  the  resignation   agreement.    According  to

Abbadessa, he finally  signed the agreement  because his lack  of

financial resources left him no other choice. 

          On May 27, 1988,  Abbadessa requested that Moore extend

payment of  the benefits provided under the  January 18 agreement

which had expired  on April  30, 1988.   Abbadessa requested  the

                               -5-
                                5

extension because he had  not been able to find  other employment

and  had run out  of money.   Moore agreed to  extend benefits to

Abbadessa for one more month and amended the January 18 agreement

to  reflect that  Abbadessa would  receive the  benefits provided

under the  original agreement  through May  31, 1988.   Abbadessa

signed  the amended agreement and  dated it June  6, 1988. Toward

the  end of June 1988, Abbadessa again requested that Moore grant

him  a further  extension  of his  benefits.     Moore  agreed to

provide Abbadessa  with benefits covering half the month of June.

Finally, in July Abbadessa made one more request for extension of

his benefits.  This time Moore refused. 

Robert D. Mariotti
                  

          Robert Mariotti  began working as a  salesman for Moore

in  December 1970.    By  1988,  Mariotti  had  advanced  to  the

managerial  position  of  Operations Manager  for  Moore's Locust

Street plant.  On  May 24, 1988, in  a meeting between  Mariotti,

Barth  and Groves, Moore requested Mariotti to resign and to sign

a resignation agreement similar to the one presented to Abbadessa

on  January 18, 1988.  The agreement provided similar benefits as

those  paid to  Abbadessa  and covered  the period  of May  24 to

August  31, 1988: (1) compensation in the amount of $5,296.60 per

month; (2) payment for  any vacation owed Mariotti for  1988; (3)

                               -6-
                                6

continued  participation in Moore's Healthcare Plan, Dental Plan,

and  Group Insurance Plan, with an option to extend participation

after August 31,  1988, if Mariotti made  quarterly payments; and

(4)  payment by  Moore  for outplacement  counseling services  to

assist Mariotti in finding other  employment.  The agreement also

provided that  Moore and Mariotti  released each  other from  any

other claims  or obligations arising  from Mariotti's  employment

with, or termination by, Moore.

          As with Abbadessa, Moore  informed Mariotti that he was

being  asked  to  resign because  his  performance  had not  been

satisfactory.   Mariotti was  also presented with  the choice  of

resigning  with  benefits  or  facing the  possibility  of  being

terminated without benefits.   After thinking about the agreement

for  two days,  Mariotti  returned it  signed  on May  26,  1988.

Mariotti  claimed that  he signed  the agreement  under financial

pressure  and that,  being aware  of Abbadessa's  experience with

Moore, he understood that  he would receive no benefits  until he

signed the agreement.

Procedural Background
                     

          On September 21, 1988,  Abbadessa and Mariotti wrote to

counsel for Moore  that "they believed  they had been  terminated

without  cause  in  violation  of the  established  policies  and

                               -7-
                                7

procedures  of  Moore and  that they  had  signed the  letters of

resignation under  duress."   On  April  11, 1989  Abbadessa  and

Mariotti  brought  separate  actions  for  breach  of  employment

contract  against  Moore  in  New  Hampshire's  Strafford  County

Superior  Court.    Plaintiffs,  in  their  separate  complaints,

alleged  that  Moore  issued  written  policies,  providing  that

employees  would not be terminated except for cause and then only

after being made aware of  deficiencies in their job  performance

and  given  the  opportunity   to  correct  those   deficiencies.

According to  plaintiffs, these  written policies  constituted an

enforceable employment  contract under  New Hampshire  law, which

Moore breached  by terminating plaintiffs without  just cause and

without giving  plaintiffs the opportunity to  correct what Moore

deemed to be deficiencies in their job performance.

          On May 5, 1989, both actions were removed to the United

States district  court  for  the District  of  New  Hampshire  on

Moore's  petition pursuant to 28 U.S.C.    1441.  On September 9,

1989, Moore moved for summary  judgment as to the claims of  both

Abbadessa and Mariotti.   Moore  argued that  the written  policy

upon  which  Abbadessa and  Mariotti  relied,  which stated  that

employees  would not  be terminated  except for  cause, had  been

replaced by  a subsequent policy issued  during plaintiffs' terms

of employment.   The new  policy did not  provide that  employees

                               -8-
                                8

would  not  be  terminated except  for  cause.    As such,  Moore

maintained,  there  existed  no  enforceable  employment contract

between plaintiffs and Moore.  In any event, Moore continued, the

resignation agreements signed by  Abbadessa and Mariotti released

Moore  from  any  and  all  liability  arising  from  plaintiffs'

employment with, or termination by, Moore.  

          Abbadessa and Mariotti opposed the motions for  summary

judgment.  They  argued that  they never received  notice of  the

change of policy.  They also  argued that they never received any

consideration for the new policy, and that New Hampshire law does

not  permit  an employer  to  unilaterally  modify conditions  of

employment to the detriment of an  employee in the absence of new

consideration to the employee.  As to Moore's claim that they had

released any  right to  sue, Abbadessa  and Mariotti  argued that

their respective resignation agreements were invalid because they

had signed the agreements under economic duress.

          On October 25, 1989,  the district court denied Moore's

motion for summary judgment as to Mariotti.  On November 7, 1989,

the  court  denied  Moore's motion  for  summary  judgment as  to

Abbadessa.   The court employed  the same reasoning  to deny both

motions.   According to  the court,  Moore's motions  for summary

judgment  presented  three issues:  (1)  whether Moore's  initial

personnel policy  represented an enforceable contract;  (2) if it

                               -9-
                                9

was  an  enforceable  contract, whether  it  was  amended by  the

subsequent policy; and (3)  whether Abbadessa and Mariotti signed

their respective resignation agreements under duress.  In denying

Moore's  motions, the  court concluded  that all  three questions

involved genuine issues of  material fact which would have  to be

decided at trial.1

          On  August  20,  1991,  Moore renewed  its  motion  for

summary  judgment as to Abbadessa, and the next day, on August 21

1991,  Moore renewed  its  motion  for  summary  judgment  as  to

Mariotti.  This  time, Moore  argued that even  if Abbadessa  and

Mariotti had  signed their  resignation agreements  under duress,

they  had  subsequently ratified  the  agreements  by failing  to

repudiate  promptly and  by  accepting all  benefits that  flowed

under  the  agreements.    Abbadessa and  Mariotti,  in  a  joint

memorandum, raised  three grounds  to defeat Moore's  motions for

summary judgment.   First, plaintiffs argued that the doctrine of

the  "law  of  the  case"  precluded  the   district  court  from

considering Moore's  renewed motions.  Second,  plaintiffs argued

that   Moore  had   not  pleaded   the  affirmative   defense  of

                       

   1The case  of Robert  Mariotti v.  Moore Business  Forms was
                                                           
   originally  assigned to  Judge Loughlin,  while the  case of
   Abbadessa  v. Moore  Business  Forms was  assigned to  Judge
                                       
   Devine.  Subsequent to  the denial of Moore's first  motions
   for summary  judgement, both cases were  reassigned to Judge
   Stahl's calendar.

                               -10-
                                10

ratification in its answer or in its original motions for summary

judgment and that, pursuant to Rule 8(c) of the Federal  Rules of

Civil Procedure, an  affirmative defense which is  not pleaded is

waived.   Finally, plaintiffs maintained that  there were genuine

issues  of material  fact  as to  whether  they were  capable  of

ratifying the resignation agreements.  

          On  January 9, 1992, in  two separate orders, the court

granted Moore's motion for summary  judgment as to Abbadessa  and

Mariotti.  The court  rejected plaintiffs' "law of the  case" and

"waiver   of  unpleaded   affirmative  defense"   arguments,  and

concluded that,  under New  Hampshire law, plaintiffs  had indeed

ratified their respective  resignation agreements and that  Moore

was entitled to summary judgment as a matter of law.

          Abbadessa and  Mariotti now appeal, raising  two of the

grounds  that  were before  the  district  court.   Specifically,

plaintiffs maintain that the "law of the case" doctrine precluded

the district  court  from ruling  on Moore's  renewed motion  for

summary judgment,  and that there were genuine issues of material

fact  as  to whether  plaintiffs  were capable  of  ratifying the

resignation agreements. 

                                II

                               -11-
                                11

          Our review  of the district court's  orders for summary

judgment  is  plenary.   United  States  v.  One  Parcel of  Real
                                                                 

Property with Bldgs,  960 F.2d 200, 204 (1st Cir.  1992).  A Rule
                   

56 motion for summary  judgment will only be granted if  there is

no genuine  issue as to any material fact and the moving party is

entitled  to  judgment  as a  matter  of  law.  Celotex Corp.  v.
                                                                 

Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).  
       

          In a diversity action the substantive law  of the forum

state determines  which facts  are material. Anderson  v. Liberty
                                                                 

Lobby,  Inc.,  477 U.S.  242, 248  (1986).   Here,  New Hampshire
            

substantive  law  will  determine if  plaintiffs  raised  genuine

issues  of  material  fact  as to  whether  they  ratified  their

respective  resignation agreements.   But first,  we turn  to the

question  of  whether  the doctrine  of  the  "law  of the  case"

precluded  the  district court  from  ruling  on Moore's  renewed

motion for summary judgment. 

                                A.

          Under the doctrine of the "law of the case", a decision

on  an issue of  law made  by the  court at one  stage of  a case

becomes a binding  precedent to be followed  in successive stages

of the same  litigation except in  unusual circumstances. FCC  v.
                                                                 

WOKO, Inc.,  329 U.S.  223 (1946);  U.S. v.  Rivera-Martinez, 931
                                                            

                               -12-
                                12

F.2d 148,  151 (1st Cir. 1991)  Piazza v. Aponte Roque,  909 F.2d
                                                      

35, 38 (1st Cir. 1990).  1B J. Moore, Federal  Practice  0.404[1]

(1980).  

          Here, the  district court,  in denying  Moore's initial

motions  for summary  judgment, decided  that there  were genuine

issues of material fact as to whether Abbadessa and Mariotti were

under   such  economic  duress  at   the  time  they  signed  the

resignation agreements as to render the agreements  voidable.  In

its renewed motions for summary judgment, Moore argued that, even

if  Abbadessa and Moore signed  the agreements under  the sort of

economic  duress  which  would render  the  agreements  voidable,

Abbadessa and Mariotti had nonetheless ratified the agreements by

their  subsequent conduct.   The issue  of whether  Abbadessa and

Mariotti ratified the agreements is  one which the district court

did  not consider, much less decide, in ruling on Moore's initial

motions for summary judgment.   

          We have stated in this circuit that the doctrine of the

"law  of  the  case" "merely  expresses  the  practice  of courts

generally to refuse to  open what has been decided."  Piazza, 909
                                                            

F.2d at  38.   The issue  raised in  Moore's renewed  motions for

summary  judgment  was  never  decided  by  the  district  court.

Accordingly,  the   district  court   was   not  precluded   from

                               -13-
                                13

considering  whether  Abbadessa   and  Mariotti  ratified   their

respective resignation agreements.

                                B.

          In  New  Hampshire,  contracts  signed  under  economic

duress are voidable. King  Enterprises v. Manchester Water Works,
                                                                

122  N.H. 1011,  453  A.2d  1276  (1982);  Cheshire  Oil  Co.  v.
                                                                 

Springfield  Realty Corp., 118 N.H. 232, 385 A.2d 835 (1978).  In
                         

the words of the Supreme Court  of New Hampshire: "the payment of

money  or  the  making   of  a  contract  might  be   under  such

circumstances of business necessity  or compulsion as will render

the  same involuntary and entitle the party so coerced to recover

the  money  paid or  excuse  him from  performing  the contract."

Cheshire Oil Co., 385 A.2d at 838.
                

          In order to be  "excused" from performing the contract,

a  party relying on a  theory of business  compulsion or economic

duress must demonstrate four elements.  First,  the party relying

on economic  duress must have involuntarily accepted the terms of

another.   "It must appear  that consent was  actually induced by

the  pressure applied and  would not have  been given otherwise."

Id. at  839, quoting Morrill  v. Bank, 90  N.H. 358, 365,  9 A.2d
                                     

519,  525 (1939).   Second, "the coercive circumstances must have

been the result of the acts of the opposite party."  Cheshire Oil
                                                                 

                               -14-
                                14

Co.,  385 A.2d  at  839.   Third, "the  pressure  must have  been
   

wrongful."  Id.   An  act or  threat of  an  act may  be wrongful
               

"although the  act or  threat is not  criminal or tortious  or in

violation  of a  contractual duty."  Id.   Fourth, "circumstances
                                        

must  have permitted no other alternative but to accept the terms

of  another if there is to be  a finding of business compulsion."

Id.  Thus, if the party relying on the theory  of economic duress
   

"had a legal  remedy adequate  to redress or  compensate for  the

injury threatened, the threat will not amount to duress."  Id.
                                                              

          Given the  above definition  of economic  duress, there

are, as  the district  court found, disputed  issues of  material

fact  as  to  whether  Abbadessa and  Moore  satisfied  the  four

elements  of duress.  Specifically,  looking at the  facts in the

light most  favorable to plaintiffs,  it is disputed  whether the

"coercive   circumstances"  surrounding   the   signing  of   the

resignation  agreements  were  "the  result of  acts  of"  Moore.

Abbadessa  and  Mariotti  claim   that  Moore  created  "coercive

circumstances" by refusing to  negotiate any of the terms  of the

agreements and by  withholding benefits plaintiffs were  entitled

to  until  they signed  the agreement.    It is  further disputed

whether  the choice given by  Moore to Abbadessa  and Mariotti of

resigning with benefits or  not resigning and risking termination

without benefits  was "wrongful."   Abbadessa and  Mariotti claim

                               -15-
                                15

that Moore's bargaining position was wrongful because it was done

in  bad faith.    It  is finally  disputed whether  Abbadessa and

Mariotti  were left with "no other alternatives but to accept the

terms" proposed by Moore.  Abbadessa and Mariotti claim that they

were not fully aware of  any internal appeal procedures available

to them at  the time  they were presented  with the requests  for

them  to resign.  They also claim  that they were in no financial

or mental shape to begin court actions.

          Therefore,  assuming for  purposes of  summary judgment

that Abbadessa  and Mariotti signed the  agreements under duress,

the question now becomes whether Moore is nonetheless entitled to

judgment  as  a matter  of  law  because Abbadessa  and  Mariotti

ratified the agreements by their subsequent actions.

          In  New Hampshire,  voidable  contracts are  subject to

ratification. Sawtelle v. Tatone, 105 N.H. 398, 201 A.2d 111, 115
                                

(1964).    Since a  contract  executed under  economic  duress is

voidable it is also  subject to ratification.  New  Hampshire has

never  specifically identified  the circumstances  under which  a

contract  executed under  economic duress  will be  considered to

have been ratified.   But generally, a voidable contract  will be

deemed to  have been ratified  when the party who  is entitled to

avoid  the contract "does any act which amounts to a ratification

after full  knowledge of  all the  facts and  circumstances." Id.
                                                                 

                               -16-
                                16

Acts amounting to ratification  are payment or acceptance  of the

benefits  of the contract  and failure to  repudiate the contract

promptly.  Id. 2     As the  Supreme Court  of New  Hampshire has
              

stated:  "A  party cannot treat  the contract  as binding and  as

rescinded at  the same time, and after he has elected to stand by

the contract and receive  the benefits it confers on him, and has

thus ratified  and  confirmed  it, he  cannot  thus  rescind  and

repudiate it." Bechard v. Amey, 82 N.H. 462, 471, 136 A. 370, 375
                              

(1926).

          Here, both Abbadessa and Mariotti sought to treat their

resignation  agreements as  "binding  and rescinded  at the  same

time."   Both accepted the  benefits the agreements  conferred on

them and neither attempted  to repudiate the agreements promptly.

                       

   2See also Hillside Assoc. of Hollis, Inc. v. Maine Bonding &amp;
                                                               
   Casualty  Co., 135 N.H. 325, 605  A.2d 1026 (1992) (voidable
                
   insurance contract between insurance agent  and construction
   company  based  on  mutual  mistake was  not  ratified  when
   insurance company promptly  notified construction company of
   mistake); Derouin  v. Granite  State Realty, Inc.,  123 N.H.
                                                    
   145,  148,  459 A.2d  231,  233 (1983)  (voidable  land sale
   contract  based  on  mutual  mistake  was  ratified  because
   purchaser had performed significant improvements to property
   and   property  could   not   be  returned   to  seller   in
   substantially the same condition in which purchaser received
   it);  Michael v. Rochester, 119 N.H. 734, 736, 407 A.2d 819,
                             
   821  (1979)  (city ratified  initially  invalid construction
   contract  for building a water main when it failed to notify
   the  contractor before  construction  was  complete that  it
   intended  to repudiate  contract); Lucier v.  Manchester, 80
                                                           
   N.H.  361, 363,  117  A.  286,  287  (1922)  (acceptance  of
   services  of attorney  by city  amounted to  ratification of
   invalid employment contract).

                               -17-
                                17

Abbadessa considered  the agreement for two  weeks before signing

it.    After  his  benefits under  the January  19 agreement  had

expired, Abbadessa  requested that  Moore extend him  benefits on

three separate occasions.  Moore acceded to two of these requests

and refused  to extend  added benefits  on Abbadessa's  third and

final  request.    So,  from  February  1988  until  April  1988,

Abbadessa  treated  the agreement  as  binding  by accepting  the

benefits  Moore had promised.   Moreover,  from April  1988 until

June 1988,  Abbadessa further ratified the  original agreement by

making three  separate requests that Moore  extend benefits which

were not  owed under the agreement.  It was not until after Moore

had  refused  additional extensions  of  benefits  that Abbadessa

notified  Moore's  counsel by  letter in  July  1988 that  he had

signed the agreement under duress.  Finally, even after Abbadessa

had filed his  suit against Moore, at no point  did he attempt to

return to Moore the benefits of the agreement which he now claims

he signed under duress.

          Similarly,  Mariotti considered  his agreement  for two

days  before  signing  it.   From  May  1988  until August  1988,

Mariotti continued  to receive the benefits  under the agreement.

Even after  Mariotti supposedly  wrote to  Moore Counsel  in July

1988  that he  had  signed the  agreement  under the  duress,  he

continued to received the benefits under the agreement for August

                               -18-
                                18

1988.   As with Abbadessa,  even after having  filed suit against

Moore, at no  point did Mariotti  attempt to return to  Moore the

benefits of the  agreement which  he now claims  he signed  under

duress.

          The Supreme Court of New  Hampshire has written that "a

person seeking to rescind cannot treat the contract  as rescinded

and binding at  the same time."  Sawtelle, 201 A.2d  at 115.   By
                                         

accepting the benefits of their respective resignation agreements

and by failing  to notify  Moore promptly that  they intended  to

repudiate  the agreements,  Abbadessa  and  Mariotti treated  the

agreements as  binding.  After having  done so, they  now wish to

treat the  agreements as  rescinded.   That, under  New Hampshire

law, they may not do.

          Abbadessa and  Mariotti argue that they  could not have

possibly  ratified  the agreements  until  after  the duress  was

removed.  Since, according to Abbadessa and Mariotti, they signed

the agreements under duress because basically, by  asking them to

resign, Moore caused them to  be in desperate need for money,  we

understand plaintiffs'  argument to  mean that duress  would have

been  removed when  they were  no longer  in such  dire financial

straits.  But, as we stated  at the outset of our discussion, the

issue in this case is whether appellants raised genuine issues of

material  fact  as  to  whether they  ratified  their  respective

                               -19-
                                19

agreements.   Stated  another  way: whether  they raised  genuine

issues  of material  fact that  the claimed  duress had  not been

removed  between the time they signed the agreements and the time

they  brought this action.   Appellants have failed  to raise any

facts  to that effect.  While Moore has advanced undisputed facts

that  appellants  accepted  the  benefits  of   their  respective

agreements,  Abbadessa   and  Mariotti  have   offered  no  facts

(disputed  or  undisputed) about  how  long  the economic  duress

lasted;  or put  another way,  if and  when their  claimed duress

ceased.3  Having  failed to satisfy  their burden of  production,

                       

   3We  should also point out  that we have  found no authority
   that New  Hampshire has  adopted or  would adopt  the theory
   that a contract signed under  economic duress is capable  of
   being  ratified only after the duress is removed.   The only
   case from  this circuit addressing  the issue is  Ismert and
                                                               
   Associates, Inc.  v. New England Mutual  Life Insurance Co.,
                                                              
   801 F.2d  536 (1st Cir. 1986).   In that case,  this circuit
   considered  an action  brought by  a tax  consulting service
   firm against an insurance company.  The firm argued that the
   agreement  it had  signed, releasing  the  insurance company
   from any claims  resulting from the firm's  loss of business
   opportunities, was  unenforceable  because it  was  obtained
   under duress.  Judge Maletz authored the majority opinion as
   well as a dissent.  In  his dissent on the issue of economic
   duress, Judge Maletz wrote that  "there can be no affirmance
   [of a contract]  unless the  duress has  ended." Ismert  and
                                                               
   Associates, 801 F.2d at 548.  Judge  Breyer, writing for the
             
   majority  on the  question of  duress,  did not  address the
   issue  of  whether a  contract  signed under  duress  is not
   capable  of  being  ratified  until the  duress  has  ended.
   Instead,  Judge Breyer found  that plaintiff had  not made a
   sufficient  showing  that it  signed  the release  agreement
   under  duress. Id..   In  Ismert, this circuit  was applying
                                   
   Massachusetts law.  Thus, the decision is not controlling in
   this  case  involving  New  Hampshire law.    Moreover,  the

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                                20

their argument necessarily fails.  See,  e.g., Mesnick v. General
                                                                 

Elec. Co.,  950 F.2d 816, 822 (1st  Cir. 1991) (where opponent of
         

summary judgment motion  "bears the ultimate burden  of proof, he

must present definite, competent evidence" sufficient to document

a factual disagreement over some issue of material fact).

          For the  foregoing reasons, we will  affirm the summary

judgment  orders of the district court in favor of Moore Business

Forms,  Inc.,  and  against  Frank  B.  Abbadessa and  Robert  D.

Mariotti.

Affirmed.   
        

                       

   statement of  Judge Maletz that "there can  be no affirmance
   unless duress  has ended", cannot even be used as persuasive
   authority in  this case given that  it was not adopted  by a
   majority of the panel.

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