          United States Court of Appeals
                        For the First Circuit


No. 16-2176

                           ANNALIA MONTANY,

                         Plaintiff, Appellant,

                                  v.

              UNIVERSITY OF NEW ENGLAND and SCOTT MCNEIL,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

                [Hon. Jon D. Levy, U.S. District Judge]


                                Before

                   Torruella, Thompson, and Kayatta,
                            Circuit Judges.


     John J.E. Markham, II, with whom Markham & Read was on brief,
for appellant.
     Edward M. Kaplan, with whom William D. Pandolph and Sulloway
& Hollis, P.L.L.C. were on brief, for appellees.


                             May 30, 2017
          THOMPSON, Circuit Judge.       Annalia Montany appeals from

the entry of summary judgment in favor of the University of New

England (UNE) and Scott McNeil (collectively, defendants).              We

affirm.

                             BACKGROUND1

          Montany was a student in UNE's two-year occupational-

therapy master's degree program. The program requires its students

to take practical exams, in which program instructors act as mock

patients and students are tested on their ability to properly

manage a patient in need of occupational therapy.      In one of these

practical exams, Montany was tasked with assisting McNeil — an

instructor playing the role of a mock patient who was "unable to

ambulate" and was "very weak, and unable to bear much weight into

the legs" — in a transfer from a wheelchair into a bed.          According

to Montany, while she was assisting McNeil in the transfer, McNeil

intentionally   "dropped   his   weight"   (210   pounds)   in    "a   fake

slipping" or "falling movement."2       Montany suffered a back injury


     1 In this summary-judgment appeal, we view the facts (and all
reasonable inferences that can be drawn from them) in the light
most favorable to Montany, the nonmovant.     See Garmon v. Nat'l
R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016). We set
forth here only those facts necessary to provide the general
backstory, amplifying this factual background when necessary in
the course of our analysis.
     2 In her opening and reply briefs, Montany repeatedly asserts
that McNeil instructed her to hold on to a gait belt during this
transfer.   However, the record passages cited for support show
only that Montany was holding a gait belt during the transfer, not
that McNeil instructed her to do so. Nonetheless, because it makes
                                  -2-
as a result, although she did not report this injury to McNeil at

this time.    Montany did not achieve the minimum passing score on

this practical exam.      According to Montany, she told McNeil three

days after failing this practical exam that her "back hurts." Five

days after that, Montany took a retake of the practical exam for

the course; it is undisputed that she did not tell McNeil or any

other instructor at UNE that she could not retake the practical

exam because of any back problem.          She failed the retake exam as

well, and so did not receive a passing grade for the course.

          As a result of this failing grade, the program's Student

Development   Committee    (SDC)   intervened.      During   her    initial

meeting with the SDC, Montany did not report that she had injured

her back or relate that her failure of the retake of the practical

exam was a product of her back injury.          The SDC developed a plan

(SDC plan) for Montany that provided, in pertinent part, that,

"[d]epending on her GPA and progress in other courses this fall,

she may return [for the following fall semester] on academic

probation to re-take [the failed course] or be dismissed" and that

"she needs to keep her GPA high in other courses to meet the 3.00

semester criterion." In a later meeting with the SDC, she reported

the back injury she suffered in the practical exam.                Although



no difference to our analysis, we assume, favorably to Montany,
that McNeil instructed her to hold on to a gait belt during the
transfer.
                                   - 3 -
Montany maintained a 3.07 GPA that semester, the SDC nonetheless

voted to dismiss Montany from the program.     The program director

agreed, and, accordingly, Montany was dismissed from the program.

          Montany responded by filing suit against UNE and McNeil.

She asserted a negligence claim against both defendants and a

breach-of-contract claim against UNE.       Montany timely appealed

from the district court's entry of summary judgment on both claims.

                             ANALYSIS

          On appeal, Montany argues that the district court3 erred

in entering summary judgment for defendants on both of her claims.

We address each claim in turn.

                           A. Negligence

          In her complaint, Montany alleged that the practice of

feigning falls in a practical exam — which, according to Montany,

McNeil did during Montany's practical exam (and, to a lesser

extent, during another one of Montany's practical exams in the

prior semester) — is "a procedure known by the medical community

to be dangerous."    "Lifting or bearing the dead weight of a

patient," Montany's complaint alleged, "is known to be a frequent

cause of injury to health care providers.    Therefore, the practice




     3 We view things institutionally and use "the district court"
to refer to both the magistrate judge who issued a report and
recommendation (R&R) and the district-court judge who adopted the
R&R in its entirety.
                                 - 4 -
engaged in by defendant McNeil . . . was negligent in that it

placed an unreasonable risk of injury upon the plaintiff." Montany

further alleged that McNeil's conduct during the practical exam in

which she suffered a lasting back injury "was unreasonable and a

lack of ordinary care" and that McNeil's weight "was more tha[n]

[Montany] should have been required to bear."

           After discovery was complete, the district court entered

summary judgment in defendants' favor on Montany's negligence

claim.   Reasoning that "[t]he circumstances of the practical exam

at issue were particular to the program of study of occupational

therapy conducted by UNE" and that "the negligence and its harmful

results to [Montany] are not so obvious in this case as to lie

within a jury's common knowledge," the court concluded that expert

testimony was required to establish defendants' breach of the

standard of care.    The court explained:

     Whether a student studying occupational therapy is
     required to move patients heavier than herself as part
     of the job duties for which she is being trained, whether
     she must demonstrate at [Montany's] stage of her
     training at the time of the practical exam at issue that
     she knows how to do this without coaching from an
     instructor or supervisor, and whether an instructor
     acting as a patient in such an exam may reasonably act
     in the manner described by [Montany] are all questions
     that are not within an average juror's common sense,
     knowledge, or experience.

Because Montany had failed to designate such an expert, the

district   court    granted   defendants   summary   judgment   on   her

negligence claim.
                                 - 5 -
               On appeal, Montany argues that expert testimony was not

required to establish McNeil's breach of the standard of care.

Montany       insists   that,    to   the   contrary,   McNeil's   actions    —

instructing Montany to hold on to a gait belt and then dropping

his weight during the practical exam — were "non-technical" and

went "against common sense and the ordinary standard of care."               As

a fallback, Montany argues that, even if expert testimony would

ordinarily be required in this context, it is not required in this

case        because   "the   negligence     and   harmful   results     [were]

sufficiently obvious as to lie within common knowledge."              (Quoting

Cyr v. Giesen, 108 A.2d 316, 318 (Me. 1954).)            We disagree.

               Under Maine law,4 there are four elements of a negligence

claim: "duty, breach, causation, and damages."              Maravell v. R.J.

Grondin & Sons, 914 A.2d 709, 712 (Me. 2007) (quoting Maddocks v.

Whitcomb, 896 A.2d 265, 268 (Me. 2006)).                "In determining the

nature of the appropriate standard of care or practice, expert

testimony may be necessary 'where the matter in issue is within

the knowledge of experts only, and not within the common knowledge

of lay[persons].'" Id. at 712-13 (alteration in original) (quoting

Cyr, 108 A.2d at 318).          The Maine Supreme Judicial Court, sitting

as the Law Court (Law Court), has held that expert testimony is




        4   The parties agree that Maine law governs this diversity
case.
                                       - 6 -
ordinarily required to establish the duty and breach elements in

a negligence action against a physician or surgeon, see Cyr, 108

A.2d at 318, a dentist, see Welch v. McCarthy, 677 A.2d 1066, 1067,

1069 (Me. 1996), an attorney, see Pawlendzio v. Haddow, 148 A.3d

713, 715 (Me. 2016), a professional engineer, see Seven Tree Manor,

Inc. v. Kallberg, 688 A.2d 916, 917-18 (Me. 1997), a college

athletic trainer, see Searles v. Trs. of St. Joseph's Coll., 695

A.2d 1206, 1210 (Me. 1997), and a general contractor supervising

a blasting contractor, see Maravell, 914 A.2d at 713.        As the Law

Court   has   observed,    requiring    expert   testimony    in   such

circumstances protects against "the potential danger that a jury,

composed of laymen and gifted with the benefit of hindsight, will

divine the breach of a[n] . . . obligation largely on the basis of

the unfortunate result."     Woolley v. Henderson, 418 A.2d 1123,

1131 (Me. 1980).

          We reject Montany's contention that an expert is not

generally required to establish the standard of care for what is

reasonable conduct in a practical exam in an occupational-therapy

program and the breach of that standard of care.       Montany admits

that "[a] practical exam requires that a student properly manage

a patient in need of occupational therapy," and McNeil testified

that practical exams are designed to test students' abilities to

demonstrate proper mastery of transfer mechanics.     The question of

whether a practical exam tests those mechanics in an unreasonable
                                - 7 -
fashion is "not within the common knowledge of lay[persons]" and

instead lies "within the knowledge of experts only."           Maravell,

914 A.2d at 712-13 (alteration in original) (quoting Cyr, 108 A.2d

at 318).     Indeed, Montany concedes that her negligence claim

involves the question "whether an instructor acting as a patient

in [a practical] exam 'may reasonably act in the manner described

by [Montany].'"     Answering that question requires more than the

jury's common sense, knowledge, and experience; it requires expert

testimony separating the reasonable actions of an occupational-

therapy instructor administering a practical exam to a graduate

student from those that breach the standard of care.5

            Of course, even in those circumstances where expert

testimony   is   ordinarily   required   to   establish   breach   of   the

standard of care, such testimony is not required "where the

negligence and harmful results are sufficiently obvious as to lie

within common knowledge." Id. at 713; see also Downer v. Veilleux,

322 A.2d 82, 84 (Me. 1974) (explaining that this exception applies

"where the negligence and the harmful results are so glaringly

apparent as to lie within the common knowledge of laymen"); cf.



     5 Montany's complaint confirms this conclusion. Although she
alleged that McNeil's conduct during the practical exam "was
unreasonable and a lack of ordinary care," she also alleged that
the practice of feigning falls is "a procedure known by the medical
community to be dangerous" and that "[l]ifting or bearing the dead
weight of a patient is known to be a frequent cause of injury to
health care providers." (Emphasis added.)
                                 - 8 -
Michaud v. Blue Hill Mem'l Hosp., 942 A.2d 686, 688 (Me. 2008)

("Except in unusual circumstances, not existing here, a plaintiff

in a medical malpractice case must prove the nature and scope of

the   defendants'    duty    by   expert     medical    testimony."     (emphasis

added)). Montany attempts to bring her case within this exception,

but we are unpersuaded.

              The two cases upon which Montany primarily relies do not

support her position that expert testimony was not required in

this case.      Montany principally relies on Searles, but that case

offers her no assistance.          In Searles, the Law Court held that,

while "establishing the standard of care for [athletic trainers]

in    their    treatment    of    athletes     ordinarily    requires     expert

testimony," 695 A.2d at 1210, no expert testimony was required in

the circumstances of that case, which involved a negligence action

brought by a college basketball player who suffered knee injuries,

id. at 1208, 1210-11.        The basketball player's claim against the

athletic trainer "involve[d] more than a claim that [the athletic

trainer] negligently conducted a course of treatment of [the

player's]      injuries    that   contributed     to    a   worsening    of   his

condition, or that he failed to appreciate the seriousness of [the

player's] condition."        Id. at 1210-11.           Instead, the claim was

that the athletic trainer, despite knowing of the acuteness of the

player's injuries, failed to notify the basketball coach that the

player should not have played basketball and failed to communicate
                                     - 9 -
to the coach the nature and extent of the player's injuries.      Id.

at 1211.      The court reasoned that "[j]urors could apply their

common knowledge in determining whether such failures, if they

occurred, constituted a breach by [the athletic trainer] of his

duty to exercise reasonable care for the health and safety of [the

player]."    Id.

             But Montany's case is not cut from the same cloth.   She

alleges that McNeil's weight drop during the practical exam was

unreasonable. Assessing the reasonableness of that conduct — which

indisputably occurred during the course of a practical exam in an

occupational-therapy graduate-degree program — is not a matter

within the common knowledge of lay jurors. Instead, it is a matter

of professional judgment about the appropriate manner in which to

test occupational-therapy graduate students on mobility-transfer

mechanics.    Indeed, Searles actually supports the district court's

conclusion that an expert was required in this case.     As the Law

Court recognized in Searles, "the standard of care applicable to

an athletic trainer who treats physical injuries or who must make

judgments about the severity of a physical condition does not

ordinarily lend itself to common knowledge."      Id. at 1210.    The

same is true for the standard of care in this case, which hinges

on a professional-judgment call about the appropriate manner to

test graduate students in a practical exam administered as part of

an occupational-therapy program.
                                - 10 -
               The other case on which Montany relies, Walter v. Wal-

Mart       Stores,   Inc.,   748   A.2d   961   (Me.   2000),   is   also   of   no

assistance to her.           In that case, the defendant pharmacist gave

the plaintiff the wrong medication, id. at 964-65, and he admitted

that he failed to follow the pharmacy's four-step process utilized

to check for errors, id. at 967.               The Law Court held that expert

testimony was not required to establish the pharmacist's breach of

the standard of care because "[t]he negligence of the pharmacist

and the harmful results were sufficiently obvious to be within the

common knowledge of a lay person.               It does not take an expert to

know that filling a prescription with the wrong drug and failing

to take the steps in place in that pharmacy to check for the wrong

drug is negligence."           Id. at 972.      Unlike a pharmacist's failure

to dispense the correct medication, however, McNeil's alleged

negligence — a purposeful weight drop during a practical exam

testing       students'      abilities    to    demonstrate     proper   transfer

mechanics in an occupational-therapy graduate-degree program — and

its harmful effects are not sufficiently obvious to be within the

common knowledge of a lay person.                Expert testimony, therefore,

was required to establish McNeil's breach of the standard of care.6


       6
       Montany's reliance on Laing v. Clair Car Connection, No.
Civ. A. CV-01-516, 2003 WL 1669624, at *4 (Me. Super. Ct. Jan. 29,
2003), is also misplaced.    The plaintiff's pertinent claims in
Laing were for negligent misrepresentation and breach of contract,
and the Superior Court rejected the car dealer's argument that
"expert testimony is required to establish one's duty not to
                              - 11 -
             At oral argument, Montany offered an additional reason

why, in her view, her negligence claim does not require expert

testimony:      According   to   Montany,   McNeil   testified   in   his

deposition that an intentional weight drop "wasn't part of the

test."7   But this contention made its debut at oral argument, so

we need not — and therefore do not — consider it.           See United

States v. Hogan, 722 F.3d 55, 61 (1st Cir. 2013) (holding that

appellant waived arguments raised for first time at oral argument).

             As a last gasp, Montany attempts to paper over her own

failure to obtain an expert by noting that "[d]efendants presented


negligently misrepresent facts or breach a contract."         Id.
Similarly, to the extent Montany intended to rely on Seider v.
Board of Examiners of Psychologists, 754 A.2d 986 (Me. 2000), it
provides her no support.    In that case — which arose from the
decision of the Board of Examiners of Psychologists (Board) that
found that the plaintiff, a psychologist, violated the code of
conduct governing her profession — the Law Court rejected the
argument that the Board was required, as a matter of procedural
due process, to establish the standard of care through expert
testimony because (among other reasons) "it is well within the
realm of common knowledge that a complete failure to act in
accordance with provisions of the code of conduct established for
one's profession constitutes a violation, and that violations of
numerous provisions of that code may constitute negligence." Id.
at 992.
     7 It appears that what McNeil actually said in his deposition
was less definitive than Montany lets on. From our review of the
deposition transcript (Montany has not pointed us to where in the
record this statement appears), the closest thing we can find in
McNeil's testimony is where he stated: "Shift my weight
unexpectedly, throw my arms in the air unexpectedly, I — that
doesn't sound like what happens in a practical exam."       In any
event, because Montany failed to raise this argument to this court
until oral argument, we need not dwell on whether Montany's
characterization of McNeil's testimony is accurate.
                                 - 12 -
no evidence of any specialized circumstances that preclude a jury

from understanding what happened."          But she cites no case — let

alone a Maine case — for the proposition that a defendant in a

negligence action is under any burden to come forward with record

evidence demonstrating that an expert is required to establish the

standard of care and its breach.8       Montany, the plaintiff in this

action, bore the burden of establishing the prima facie elements

of her negligence claim, see Maravell, 914 A.2d at 712, and, for

reasons   already   explained,   we   are    convinced   —     based   on   the

undisputed fact that her negligence claim against an occupational-

therapist instructor alleges that he acted unreasonably in the

course of administering a practical exam to a graduate student in

the   occupational-therapy   master's       degree   program    —   that,    to

satisfy this burden, she needed to come forward with expert

testimony to establish the standard of care and its breach.

Because expert testimony was required to establish McNeil's breach

of the standard of care and Montany failed to adduce such evidence,

summary judgment in defendants' favor was appropriate on her

negligence claim.    See Pawlendzio, 148 A.3d at 715-16 (affirming



      8The Law Court's decision in Seven Tree Manor, which Montany
references in passing in connection with this argument, imposes no
such obligation.    In that case, the Law Court instructed the
parties to brief the issue of the need for expert testimony to
establish breach of the standard of care owed by professional
engineers and both parties agreed that such testimony should
ordinarily be required. Seven Tree Manor, 688 A.2d at 917-18.
                                 - 13 -
entry of summary judgment on legal-malpractice claim based on

plaintiffs' failure to produce expert-based evidence); Michaud,

942 A.2d at 688 (same in medical-malpractice case).

                      B. Breach of Contract

          In her brief before us, Montany's characterization of

her contract claim is a bit of a moving target.    At certain points

in her brief, Montany seems to rely on the UNE student handbook as

the basis for her contract claim.      At other points in her brief,

Montany seems to suggest that her breach-of-contract claim is

grounded, at least in part, in the SDC plan.       Finally, at still

other points in her brief, Montany characterizes her contract claim

as one for UNE's breach of either "the implied promise of good

faith and fair dealing" or the duty "not to act in an arbitrary

manner and in bad faith toward the student."        We address each

characterization in turn.

                            1. Handbook

          In her complaint, Montany alleged that "[t]here existed

between [Montany] and UNE a contract the terms of which were the

provision of the [s]tudent [h]andbook."      Montany argues that the

district court "ignore[d] the claim of breach of contract based

upon the [s]tudent [h]andbook."

          But it did no such thing.       Rather, the district court

recognized that "[t]he contract claim asserted in the complaint is

based on the student handbook" but noted that, when confronted
                              - 14 -
with defendants' argument that they were entitled to summary

judgment on a breach-of-contract claim arising from the student

handbook, Montany eschewed reliance on the handbook, "apparently

abandoned" it as a basis for her contract claim, and instead

"respond[ed] that her claim based on the [SDC plan] remains viable,

as well as a claim, apparently based on an implied contract, that

the defendants acted unfairly, arbitrarily, and/or capriciously."9

           Defendants argue that Montany's failure to put forth any

argument in her opposition to defendants' motion for summary

judgment to the effect that UNE breached a provision of the student

handbook constitutes abandonment of any such claim.             Having read

Montany's opposition, we agree.     See Grenier v. Cyanamid Plastics,

Inc., 70 F.3d 667, 678 (1st Cir. 1995) (recognizing that "an issue

raised in the complaint but ignored at summary judgment may be

deemed waived"); see also Vélez-Vélez v. P.R. Highway & Transp.

Auth., 795 F.3d 230, 238 (1st Cir. 2015) (concluding that plaintiff

failed to preserve arguments relating to entry of summary judgment

on one claim where plaintiff failed to address, beyond mere one-

sentence   cursory   assertion,   that     claim   in   her   opposition   to

summary-judgment motion); Merrimon v. Unum Life Ins. Co. of Am.,




     9  The district court similarly remarked that Montany's
"summary judgment presentation on the merits of her contract claim
is based entirely upon the alleged 'specific contractual promise'
inherent in the ' . . . SDC Plan.'"
                                  - 15 -
758 F.3d 46, 57 (1st Cir. 2014) ("After filing their complaint,

the plaintiffs did nothing to develop this particular claim, and

the summary judgment papers disclose no development of it.     The

claim is, therefore, waived.").10

                            2. SDC Plan

          The district court concluded that Montany's "complaint

cannot reasonably be read to include . . . a contract claim based

on the [SDC plan]," and it refused to allow her to amend her

complaint through argument in her opposition to defendants' motion

for summary judgment.   See Asociación de Suscripción Conjunta del

Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez, 659 F.3d

42, 53 (1st Cir. 2011) (quoting Gilmour v. Gates, McDonald & Co.,




     10We note that, even if she hadn't abandoned this claim, it's
far from clear that Montany could state a contract claim based on
the provisions of the student handbook.      The handbook provides
that its "provisions . . . do not constitute a contract, express
or implied, between [UNE] and any applicant, student's family or
faculty or staff member" and that UNE "reserves the right to change
the policies, procedures, rules, regulations, and information in
this handbook at any time." Under Maine law, a student handbook
using language such as this cannot alone form the basis of a
breach-of-contract claim. See Millien v. Colby Coll., 874 A.2d
397, 400, 402 (Me. 2005) (affirming trial court's conclusion that
student handbook — which contained "a reservation clause that
g[ave] [the college] the right to unilaterally alter the terms of
the handbook without notice to students" — "was not a binding
contract or the exclusive source of the terms of the parties'
agreement" because, "[u]nder Maine law, 'a reservation to either
party of an unlimited right to determine the nature and extent of
his performance renders his obligation too indefinite for legal
enforcement, making it, as it is termed, merely illusory'" (quoting
Corthell v. Summit Thread Co., 167 A. 79, 81 (Me. 1933))).
                              - 16 -
382 F.3d 1312, 1315 (11th Cir. 2004), for the proposition that

"[a] plaintiff may not amend her complaint through argument in a

brief   opposing   summary   judgment").            We   agree    that   Montany's

complaint cannot be read as asserting such a claim; indeed, the

SDC plan is not even mentioned in the complaint.

            On   appeal,   Montany    has     not    offered     a   coherent   and

developed argument challenging the ground on which the district

court entered summary judgment on any breach-of-contract claim

premised on the SDC plan.      First, she argues that the SDC "plan is

not a separate contract; it is part and parcel of the contract

between UNE and . . . Montany that is based upon the [s]tudent

[h]andbook, and which carries with it an implied obligation of

good faith and fair dealing in all interactions between UNE and

its students."     Second, Montany observes that "university/student

contracts   mostly   'involve   written        materials,        usually   student

handbooks'" and notes that the SDC "plan presented by UNE to

Montany, setting forth the requirements for her continuation at

UNE, and produced by UNE in discovery, is a writing, and part and

parcel of a larger contractual obligation."

            But, notwithstanding these passing observations, Montany

has failed to meaningfully develop any argument that the district

court erred in entering summary judgment on any breach-of-contract

claim premised on the SDC plan since such a claim was never alleged

in her complaint; accordingly, we need not consider any such
                                     - 17 -
undeveloped argument.          See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied    by   some     effort    at     developed   argumentation,    are

deemed   waived.");      see    also    Town    of    Norwood   v.   Fed.   Energy

Regulatory Comm'n, 202 F.3d 392, 405 (1st Cir. 2000) ("[D]eveloping

a sustained argument out of . . . legal precedents is the job of

the appellant, not the reviewing court, as we have previously

warned.").

                         3. Good Faith/Arbitrariness

             In her complaint, Montany alleges that (1) UNE undertook

an obligation to "deal with her in good faith and fairly" and to

not "act arbitrarily and in bad faith"; (2) she "relied on UNE's

promise of good faith and fair dealing, and that she would not be

treated in bad faith and arbitrarily"; and (3) UNE "did not act in

good faith and did not deal fairly with plaintiff."

             But, to the extent she means to assert a claim for UNE's

breach of the implied obligation of good faith and fair dealing,

she   cannot   do   so    because,      as    the    district   court   correctly

concluded, Maine has confined this duty to insurance contracts and

contracts governed by the Uniform Commercial Code (U.C.C.).                   See

Wortley v. Camplin, 333 F.3d 284, 293 (1st Cir. 2003) ("Maine law

does not impose a duty of good faith and fair dealing except in

circumstances governed by specific provisions of the U.C.C."); Me.

Farms Venison, Inc. v. Peerless Ins. Co., 853 A.2d 767, 770 (Me.
                                       - 18 -
2004) ("We have held that 'in every insurance contract an insurer

owes a duty to act in good faith and deal fairly with its insured'

in the handling of insurance claims." (quoting Marquis v. Farm

Family Mut. Ins. Co., 628 A.2d 644, 648 (Me. 1993))); Haines v.

Great N. Paper, Inc., 808 A.2d 1246, 1250 (Me. 2002) ("We have

declined to impose a duty of good faith and fair dealing except in

circumstances   governed   by   specific    provisions   of   the   Uniform

Commercial Code."); Niedojadlo v. Cent. Me. Moving & Storage Co.,

715 A.2d 934, 937 (Me. 1998) ("We have had the opportunity to

extend the implied covenant of objective good faith in contracts

not governed by Maine's U.C.C. and we have specifically refused to

do so.    We decline the invitation to do so today." (internal

citations omitted)).

           Perhaps in recognition of this hurdle, Montany's reply

brief distinguishes the "duty of good faith and fair dealing" that

"some states attach . . . to various commercial contracts" from

her allegation that UNE breached "a stand-alone duty" to avoid

arbitrary and capricious conduct and to "meet[] common standards

of fair play, meet[] the student's reasonable expectations, and

provide[] fundamental fairness."          And, according to Montany, a

jury   should   decide   whether    UNE   acted   arbitrarily   and   in   a

fundamentally unfair manner when it promulgated the SDC plan — a

plan that (in Montany's words) "surely could justify Montany's

reasonable expectation that she would be allowed to return to UNE
                                   - 19 -
and complete her occupational therapy training if she complied

with" it — but failed to honor it.

           But     it   is   not    at     all    clear     —   despite     Montany's

protestations to the contrary — that Maine imposes any such duty

on private universities.       The primary authority upon which Montany

relies for the existence of this duty is a decision of the Maine

Superior Court, Millien v. Colby Coll., No. Civ. A CV-02-261, 2003

WL 22100833 (Me. Super. Ct. Aug. 14, 2003).                 Relying on Goodman v.

President & Trustees of Bowdoin College, 135 F. Supp. 2d 40, 54

(D. Me. 2001), the Superior Court concluded in Millien that: (1)

"a contractual relationship [between the college and the student]

probably exist[ed]," Millien, 2003 WL 22100833, at *2; (2) "[t]o

the extent that there is a contractual relationship between the

college and its students with regard to disciplinary proceedings,

the school's responsibility would be to provide a process which

meets common standards of fair play, meets the student's reasonable

expectations[,] and provides fundamental fairness," id. at *3; and

(3) in any event, the college did not breach any contractual

obligation in that case, id. at *3.

           The    student     appealed,         and   the   Law   Court     affirmed.

Millien, 874 A.2d at 400.            Because the college did not file a

cross-appeal     challenging       the    Superior     Court's        finding   that   a

contractual relationship existed between the parties, the Law

Court   accepted    this     finding      and     affirmed      the    lower    court's
                                         - 20 -
conclusion that the college's conduct did not constitute a breach

of contract.     Id. at 401-02 & nn.2-3.       Notably, the student urged

the Law Court to adopt language from Goodman — the very same

language that Montany relies on in this case — but it declined to

do so:    "Because we affirm the trial court's finding regarding the

contractual relationship between [the student] and [the college]

under the facts of this case, we see no need to adopt a fixed

standard    or   standards   governing   the    contractual   relationship

between students and private colleges or universities."            Id. at

401 n.2.    Since Millien, Maine's highest court has not addressed

whether and to what extent a contractual relationship exists

between students and private colleges or universities.

            Now Montany — who elected to bring this diversity action

in federal court instead of Maine state court — asks us to adopt

the very same "fixed standard or standards" that the Law Court

declined to adopt in Millien.     But the cases upon which she relies

shed little light on whether the Law Court would hold that a

private university has the contractual relationship with students

that Montany alleges,11 and, in light of Millien, we are hesitant


     11In addition to the Maine Superior Court decision in Millien
and the language from Goodman that the Law Court declined to adopt
in Millien, Montany relies on two decisions from the United States
District Court for the District of Maine — both of which predate
the Law Court's decision in Millien and involved situations where
the university did not contest that a contractual relationship
existed, see Gomes v. Univ. of Me. Sys., 304 F. Supp. 2d 117, 130
(D. Me. 2004); Tobin v. Univ. of Me. Sys., 59 F. Supp. 2d 87, 95
                              - 21 -
to conclude that it would.              After all, "we are reluctant to push

state law to new frontiers in a plaintiff-elected diversity action

where the state's [highest court] has evinced reluctance to take

the   approach        the    diversity     plaintiff        proposes."        Kelly    v.

Marcantonio, 187 F.3d 192, 199 (1st Cir. 1999).                   Montany's breach-

of-contract theory "should have been directed to the state courts

in the first instance." Id. at 198-99. In the absence of authority

persuading us that such a contractual relationship exists under

Maine        law,   "we   find    no   basis   for   [this    aspect     of   Montany's

contract] claim."           Nicolaci v. Anapol, 387 F.3d 21, 27 (1st Cir.

2004) (declining to recognize cause of action for common-law

indemnification           under    Massachusetts      law    where,    as     diversity

plaintiffs conceded, Massachusetts had never extended doctrine to

scenario of plaintiffs' case and cases cited by plaintiffs did not

support        such   extension).          Therefore,       summary    judgment       was

appropriate on this aspect of Montany's breach-of-contract claim.12



(D. Me. 1999) — and four decisions of this court — all but one of
which also predate Millien and all of which, in any event, apply
the substantive law of a state other than Maine, see Havlik v.
Johnson & Wales Univ., 509 F.3d 25, 34-35 (1st Cir. 2007) (applying
Rhode Island law, which recognizes "that parties to a contract act
pursuant to an implied duty of good faith and fair dealing");
Mangla v. Brown Univ., 135 F.3d 80, 83, 84 (1st Cir. 1998) (same);
Russell v. Salve Regina Coll., 890 F.2d 484, 487, 488 (1st Cir.
1989), rev'd 499 U.S. 225 (1991) (same); Cloud v. Trs. of Bos.
Univ., 720 F.2d 721, 724-25 (1st Cir. 1983) (applying Massachusetts
law).
        12
       Although the district court did not enter summary judgment
on this aspect of Montany's breach-of-contract claim on this
                             - 22 -
                              CONCLUSION

          For   these   reasons,    we   affirm   the   entry   of   summary

judgment in defendants' favor on Montany's negligence and breach-

of-contract claims.13   Each side shall bear its own costs.




precise ground, we are free to affirm the entry of summary judgment
on any ground apparent from the record. See Delgado Echevarría v.
AstraZeneca Pharm. LP, No. 15-2232, 2017 WL 1593474, at *3 (1st
Cir. May 2, 2017).
     13We need not — and therefore do not — address UNE's argument
that the district court could have entered summary judgment on
Montany's breach-of-contract claim on the ground that she failed
to exhaust her internal remedies by failing to appeal her dismissal
to the Dean of UNE.
                                   - 23 -
