
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1527                                  KNAPP SHOES, INC.,                                Plaintiff, Appellant,                                          v.                       SYLVANIA SHOE MANUFACTURING CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Lawrence P. Cohen, U.S. Magistrate Judge]                                            _____________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Timothy  C. Blank with whom  Bernard J. Bonn III,  Dina Warner and            _________________            ___________________   ___________        Dechert Price & Rhoads were on brief for appellant.        ______________________            Joseph B.  Green with whom Bennett  H. Klein and Kotin, Crabtree &            ________________           _________________     _________________        Strong were on brief for appellee.        ______                                 ____________________                                  February 10, 1994                                 ____________________                 BOUDIN,  Circuit Judge.  Knapp Shoes Inc., the plaintiff                          _____________            in this commercial dispute, appeals from the district court's            order  dissolving a preliminary  injunction.  That injunction            had  frozen assets of  the defendant, Sylvania  Shoe Manufac-            turing Corp., in an amount sufficient to satisfy  a potential            judgment in Knapp's favor.   Because we find that the primary            ground of the court's order  is a defense that was  waived by            Sylvania,  and that the court's findings were insufficient to            support  its  action  on  the  alternative  ground  urged  by            Sylvania, we  vacate  the order  dissolving  the  preliminary            injunction.                                          I.                 Knapp sells work shoes at  both the wholesale and retail            levels,  including a  line  of shoes  with  a patented  slip-            resistant  rubber sole.   Beginning  in 1986  or  1987, Knapp            placed orders with Sylvania for the latter to manufacture and            supply   Knapp  with  several   different  styles   of  shoes            incorporating Knapp's slip-resistant sole.  Knapp intended to            resell the shoes both through its retail outlets and directly            to  large  customers  in  the  restaurant,  hotel  and  other            industries.  Between 1987 and 1989, Sylvania manufactured and            delivered over 250,000 pairs of shoes to Knapp.                 Sometime  in  1987,  Knapp  became concerned  about  the            quality  of the shoes manufactured  by Sylvania.  The primary            problem was  the tendency  of the sole  to separate  from the                                         -2-                                         -2-            leather body  of the  shoe.  Although  the parties  disagreed            (both then and now) as to the extent of the problem, Sylvania            made  a number  of changes  in construction  of the  shoes in            order  to eliminate  the  problem.   According  to its  later            complaint, Knapp was assured by Sylvania on various occasions            between 1987 and 1989 that the sole adhesion problem had been            remedied.  These  assurances, Knapp asserts, were  untrue; it            says that the proportion of defects remained high and in some            periods approached 100% for certain styles.                 On April  10, 1990,  Knapp filed  this diversity  action            under Massachusetts  law for  breach of  contract (count  1),            breach  of  express   warranty  and  implied   warranties  of            merchantability  and fitness (counts 2-4), breach of the duty            of good faith and fair dealing (count 5), fraud and negligent            misrepresentation  (counts 6 and  7), and violation  of Mass.            Gen.  Laws Ann.  ch. 93A  (count 8).1   The  gravamen of  all            these claims was  that too many of the  shoes manufactured by            Sylvania and sold to Knapp were defective.                  Knapp's  complaint was  quite detailed in  setting forth            the categories of damages it claimed to have suffered.  These            included increased costs  of inspection and for  handling and            returning  defective  shoes;  lost  profits  due  to  Knapp's                                            ____________________                 1Chapter 93A  outlaws "[u]nfair  methods of  competition            and unfair or  deceptive acts or practices in  the conduct of            any trade or commerce." Mass. Gen. Laws Ann. ch. 93A,   2(a),            and  it permits  awards of  multiple  damages and  attorney's            fees.  Id.   11.                   ___                                         -3-                                         -3-            inability  to  fill  orders  for  customers;  losses  due  to            Sylvania's  refusal to  give credit  for  certain shoes  that            Knapp  did return  or attempted  to  return; increased  costs            because  Knapp was forced  to make substitute  purchases from            other  manufacturers; credits and price concessions Knapp had            to  afford its own customers because of their dissatisfaction            with defective shoes; and losses in good will and in customer            orders due to Sylvania's conduct.                 Sylvania filed an  answer and counterclaim.   The answer            denied  virtually all of  the incriminating allegations.   It            also asserted  13 affirmative  defenses, including  estoppel,            disclaimer   of   warranties,  unclean   hands,   laches  and            contributory  negligence.   Sylvania's  counterclaim  alleged            that Knapp still owed Sylvania about $277,000 for shoe orders            not  yet paid  (Sylvania also  claimed  multiple damages  and            attorney's  fees  under  Chapter  93A).     The  counterclaim            suggested   that  any  defects   were  due  to   Knapp's  own            specification  of materials to  be used in  manufacturing its            shoes.                 Both parties  consented to  proceed before a  magistrate            judge and  waived a  jury trial.   The trial  was bifurcated,            with the liability phase covering  nine trial days in January            1991.  At the conclusion  of this phase, the magistrate judge            on January 31, 1991, entered a four-page memorandum and order            that devoted  one  paragraph each  to five  of Knapp's  eight                                         -4-                                         -4-            counts,  without  discussing  Sylvania's counterclaim.    The            first substantive paragraph reads as follows:                           Except to the  extent that plaintiff                      has  shown,  or  can  show,  that   shoes                      manufactured by  defendant and  delivered                      to plaintiff,  and/or shoes  manufactured                      by   defendant   to   be   delivered   to                      plaintiff,  were,  in   fact,  defective,                      plaintiff  has  failed  to  satisfy  this                      court by a preponderance of the  evidence                      that   defendant   breached   an  express                                                        _______                      warranty.      None    of   the   parties                      anticipated,    or    could,    in    the                      circumstances,   reasonably   anticipate,                      that each and every  shoe manufactured by                      defendant for the plaintiff would be free                      of  defect.     On  its  part,  defendant                      expressly promised that it  would use its                      best  effort  to  produce  a  defect-free                      shoe,   and   that    it   would   credit                      plaintiff's account  for those  defective                      shoes  which  plaintiff  returned.    All                      parties clearly understood  that that was                      the  extent  of   the  express  warranty,                      nothing more, and nothing less.                 In the subsequent paragraphs, the magistrate judge found            that   Knapp   had   failed   to   prove   fraud,   negligent            misrepresentation or--"except  to the  extent that  plaintiff            has  shown, or  can show,"  a refusal  by Sylvania  to credit            returned  defective shoes--breach of  the duty of  good faith            and  fair dealing.   As  for Knapp's  chapter 93A  claim, the            order said that  Sylvania had not been shown  to have engaged            in conduct so unscrupulous as  to make it liable for multiple            damages;  it noted, but did not  decide, the question whether            attorney's fees might  be due Knapp under chapter  93A on the                                         -5-                                         -5-            theory that a  breach of warranty was a  violation of chapter            93A under a regulation of the state's attorney general.                 In May 1991, prior to  the damages phase of trial, Knapp            discovered  that Sylvania  was  going  out  of  business  and            liquidating its assets.  Fearful that Sylvania would  soon be            judgment-proof, Knapp obtained a  temporary restraining order            precluding  Sylvania from dissipating assets in the amount of            $3,775,657.22--the  amount of  damages  that  Knapp hoped  to            prove in  the next phase of the  trial.  The magistrate judge            modified this  order on June  10, 1991, converting it  into a            preliminary injunction and  amending it to allow  Sylvania to            make limited payments to its creditors and lawyers.                 The damages phase of trial  took place over five days in            June  1991;  at  Sylvania's  behest,  an  additional  day  of            evidence  was heard on November  25, 1991.  Proposed findings            were filed  by both  sides in  March 1992.   It  appears that            nothing further  occurred during the next 12 months until, in            March 1993, the magistrate judge issued an order proposing to            certify  certain  questions   to  the  Massachusetts  Supreme            Judicial Court.   Both  sides opposed  certification, but  on            April 8, 1993,  the magistrate judge certified  two questions            to the Supreme  Judicial Court; both related  to the possible            application of Chapter 93A to "a simple breach of warranty."2                                            ____________________                 2The first question  was whether a regulation  issued by            the  state attorney  general under  chapter  93A, defining  a            violation to  include  a breach  of  warranty, applied  to  a                                         -6-                                         -6-                 In the certification, the  magistrate judge prefaced the            two  certified  questions  with a  ten-page  statement.   The            statement repeated the magistrate judge's rulings on the five            counts discussed  in its  January 31,  1991, order,  and then            made several additional  findings of fact and  conclusions of            law.  These  determinations were prefaced by a statement that            "only the  ultimate findings  and conclusions  are set  forth            herein - not the  subsidiary findings and conclusions."   The            magistrate judge determined inter alia that:                                        __________                           1.    .  .  .  .  By  their  express                      negotiations,     by     their    express                      understandings,  and  by   their  express                      course  of  dealings,  Sylvania  promised                      Knapp  that, in the event that shoes were                      defectively manufactured, Knapp's remedy,                      and sole remedy, would be the replacement                          ____                      of  [or credit for]  those shoes shown to                      be defective and returned - nothing more,                      and nothing less [footnote omitted].                           2.    Because  of  this  clear   and                      express    understanding   between    the                      respective    parties,    Knapp's    sole                                                           ____                      remedies, in terms of breach of contract,                      or under  the relevant provisions  of the                      Uniform Commercial  Code, are  limited to                      the replacement of [or credit for]  those                      shoes shown to  be defective and returned                      to Sylvania.                 Other determinations included a ruling that Sylvania was            obliged to give  a credit for or replace  any defective shoes                                            ____________________            transaction  of the kind  described by the  magistrate judge,            namely, a breach as between two similarly situated businesses            based on  delivery of  a "minute"  portion of  non-conforming            goods.   If the  answer were yes,  the second  question asked            whether  the  regulation  was  valid  under  the  authorizing            statute.                                         -7-                                         -7-            returned by  Knapp;  a  statement  that  many  of  the  shoes            returned  by Knapp's  customers  were  made  by  an  overseas            supplier; a  finding that Sylvania acted in  "the utmost good            faith"  to correct  a problem  "not  reasonably foreseen"  by            either side; and a finding in  a final footnote that "at best            .  . .  approximately three  (3)  percent of  the shoes  were            allegedly  defective .  . .  and as  to  a majority  of those            shoes,  credit  was  given to  Knapp  when  those  shoes were            returned . . . ."                   The Supreme  Judicial  Court  has  yet  to  act  on  the            questions  certified  by the  district  court.   But  on  the            strength  of   the  magistrate   judge's   findings  in   the            certification  order, Sylvania  moved on  April  8, 1993,  to            dissolve the  preliminary injunction.   The  magistrate judge            granted  this  motion on  May  5, 1993,  concluding  that its            earlier   findings  left  Knapp   with  so  little   hope  of            substantial recovery  that  the freeze  on Sylvania's  assets            could no longer be justified.  The order set forth findings 1            and 2 from the certification, quoted in pertinent part above.                 Knapp filed a notice of appeal on May 11, 1993, and this            court  stayed the  magistrate  judge's  order dissolving  the            preliminary injunction  pending the  outcome of  this appeal.            We  have jurisdiction  pursuant to  28  U.S.C.    1292(a)(1),            which permits  appeals from  interlocutory orders  dissolving            injunctions.                                         -8-                                         -8-                                         II.                 This circuit has  not explicitly addressed the  standard            to  be applied  by a  district court  in deciding  whether to            dissolve a preliminary  injunction.  But we  think it evident            that in  the ordinary case  dissolution should depend  on the            same considerations that guide a judge in deciding whether to            grant  or deny a  preliminary injunction in  the first place.            The  familiar quartet  includes  likelihood  of success,  the            threat of  irreparable injury  to the  party seeking  interim            relief, the  equities and  the public interest.3   It  is not            surprising that a  fresh look after the trial  evidence is in            might produce a  different judgment about the  probability of            success.                 In dissolving  the preliminary injunction in  this case,            the magistrate  judge relied upon his  certification findings            that the parties had agreed to limit their remedies under the            contract  to return and  replacement or credit  for defective            shoes.  As already  noted, the magistrate judge  concluded in            finding  number 1 that  "[b]y their express  negotiations, by            their  express understandings, and by their express course of            dealings, Sylvania  promised Knapp  that, in  the event  that            shoes were defectively manufactured, Knapp's remedy, and sole                                                                     ____                                            ____________________                 3See, e.g., Teradyne, Inc. v. Mostek Corp., 797 F.2d 43,                  ___  ____  ______________    ____________            51  (1st   Cir.  1986);     Planned   Parenthood  League   of                                        _________________________________            Massachusetts  v. Bellotti,  641 F.2d  1006,  1009 (1st  Cir.            _____________     ________            1981).                                         -9-                                         -9-            remedy, would  be the  replacement of [or  credit for]  those            shoes shown to be defective  and returned - nothing more, and            nothing less."                 Accordingly,  the  magistrate  judge held  that  Knapp's            claims for damages, see Mass. Gen. Laws Ann. ch. 106,   2-715                                ___            (buyer's   ordinary   damages),       7-16  (incidental   and            consequential  damages), over  and  above  credits for  shoes            actually returned to Sylvania, were barred by Mass. Gen. Laws            Ann.   ch.   106,  2-719;4   hence,  Knapp's   likelihood  of            substantial   recovery  was   insufficient  to   support  the            preliminary injunction.  We need not decide whether a section            2-719 defense was supported by the evidence, because we  hold            that  Sylvania waived any such limitation of remedies defense            by failing to raise it in a timely fashion.                                            ____________________                 4Mass.  Gen. Laws  Ann. ch.  106,    2-719,  pertinently            provides:                 Contractual Modification or Limitation of Remedy                 (1)  .  .  .  (a)  the  agreement  may provide  for                 remedies  in addition  to  or  in substitution  for                 those provided  in this  Article and  may limit  or                 alter the measure of damages recoverable under this                 article,  as by  limiting the  buyer's  remedies to                 return of  the goods and repayment of  the price or                 to repair  and replacement of  non-conforming goods                 or parts;  and                 (b)  resort to  a remedy  as  provided is  optional                 unless  the  remedy  is  expressly   agreed  to  be                 exclusive, in which case it is the sole remedy.                                         -10-                                         -10-                 Fed. R. Civ.  P. 8(c) requires a party  to affirmatively            plead  certain  specified  defenses, as  well  as  "any other            matter  constituting  an avoidance  or  affirmative defense."            Affirmative defenses not so pleaded  are waived.  See FDIC v.                                                              ___ ____            Ramirez-Rivera, 869 F.2d  624, 626 (1st Cir. 1989).   We have            ______________            previously held that a  statutory provision limiting  damages            to  a  fixed  sum  constituted  an  affirmative  defense  for            purposes  of Rule  8(c).    Jakobsen  v.  Massachusetts  Port                                        ________      ___________________            Authority, 520 F.2d 810, 813  (1st Cir. 1975).  Section 2-719            _________            performs the same damage limitation function, and there is no            reason to reach a contrary result here.  See also Ingraham v.                                                     ________ ________            United States, 808 F.2d 1075, 1079 (5th Cir. 1987).            _____________                 Sylvania failed to raise the  defense in its answer, its            amended answer, its pretrial memorandum, or its proposed jury            instructions.5   Indeed, there  is no indication  that either            of  the parties thought  that a limitation  of remedies issue            was present in  the case until the ninth and final day of the            liability phase  of trial.  At  that point, after  all of the            evidence  had  been  submitted,  the  magistrate  judge  said            "[w]e've  got a  problem,  I think  under  Section 719(b)  of            whether  or not  .  . .  the  parties agreed  that  defective            returns, credits for [sic] would be the sole remedy."                                            ____________________                 5The parties submitted proposed  jury instructions prior            to  their waiver  of trial  by  jury and  consent to  proceed            before the magistrate judge.                                         -11-                                         -11-                 Sylvania  does  not  dispute   that  the  limitation  of            remedies is an affirmative defense.  Nor does it suggest that            it raised that defense in  its answer or elsewhere.  Instead,            Sylvania argues that the statement of the magistrate judge at            the close of the liability stage,  as well as later ones made            by the magistrate  judge in the damages phase, put plaintiffs            on notice as to the issue.  We do not agree.                 The reason why affirmative defenses under Rule 8(c) must            be pled in the answer is to give the opposing party notice of            the  defense  and a  chance  to  develop  evidence and  offer            arguments  to   controvert  the   defense.     Blonder-Tongue                                                           ______________            Laboratories,  Inc. v. University of Illinois Foundation, 402            ___________________    _________________________________            U.S. 313, 350 (1971).  Some courts have excused noncompliance            with  Rule  8(c)  if  "a  plaintiff  receives  notice  of  an            affirmative defense by  some means other than  pleadings" and            is not  prejudiced by  the omission of  the defense  from the            initial pleading.  E.g., Moore, Owen, Thomas & Co. v. Coffey,                               ____  _________________________    ______            992 F.2d  1439, 1445 (6th Cir. 1993).  This court reached the            same result where  a defense "has been fully  tried under the            express or implied consent of the parties, as if it  had been            raised in the original  responsive pleading." Ramirez-Rivera,                                                          ______________            869 F.2d at 626-27.                 We need not decide whether notice and no prejudice would            also serve  as an excuse  in this circuit, cf.  Jakobsen, 520                                                       __            F.2d at 813  (referring favorably to the  no-prejudice test),                                         -12-                                         -12-            since  we find that neither the Coffey nor the Ramirez-Rivera                                            ______         ______________            standard was met  here.  In the present  case, the limitation            of remedies issue  was not raised until virtually  the end of            the  liability trial, after  discovery and the  submission of            all  of the  evidence on  liability.   Nor  did the  parties'            presentation of witnesses  or documents focus on  this issue.            Rather, the magistrate  judge's ruling seems to  have derived            from  a fragment  of testimony  from one  witness:   a former            Knapp executive named John  Esser testified that he  had told            the  Knapp president in July 1989 that Sylvania "[had] agreed            and will  agree, if  we do  have a  claim, to  take back  any            shoes, and always have."                   This  is pretty thin  stuff, even coupled  with evidence            from   other  sources   that   the   parties  had   extensive            arrangements  for the return  of defective goods  in exchange            for credit.  The question,  after all, is not whether credits            were an available remedy  but whether the parties had  agreed            that credits were the exclusive  remedy.  See Mass. Gen. Laws                                                      ___            Ann. ch. 106,    2-719(1)(b) (quoted in note 4  above).  More            to the point,  Esser's statement in context  was not elicited            by Sylvania  to show that credits were  the exclusive remedy,            nor  did  Knapp  cross-examine  in order  to  refute  such  a            suggestion, which after all Sylvania had not previously made.            Thus the parties  did not litigate the limitation of remedies            issue in the liability phase of the trial.                                         -13-                                         -13-                 Nor  was the  issue  litigated  in  the  damages  phase.            Although in this  phase the magistrate judge  adverted to the            limitation of remedies  issue, his brief remarks  suggest not            that  it was  now  open  to litigation  but  rather that  the            parties either had or should  have addressed the issue in the            liability  phase of the trial.6   One can argue as to whether            the  limitation of remedies  issue is  better described  as a            liability or a damage issue.  But in this case, the issue was            not litigated  in the former phase and  it would have taken a            fortune  teller  to  suppose  that  such  evidence  would  be            welcomed in the latter phase.                 In  sum, we conclude that Sylvania waived the limitation            of remedies defense by  failing to assert it in the answer or            by amendment in  accordance with Rule 8(c).   The defense was            not  resurrected either by clear  notice given prior to trial            or by actual litigation of the  issue in the course of trial.            Thus the  limitation of remedies  defense is out of  the case            and cannot support the order vacating the injunction.                                         III.                                            ____________________                 6On  the first day  of the damages  trial the magistrate            judge, in ruling on an in limine motion by Sylvania to  limit                                   _________            evidence,  said that  the motion  was granted "to  the extent            it's already  [sic] on  what type of  remedy is  available as            opposed to what  damage is suffered." In a  written order the            next day,  the magistrate  judge--speaking  of the  liability            phase--said:   "An overriding  issue -  recognized, or  which            should  have been  recognized by  the  parties -  was and  is            whether parties agreed to limit their respective remedies . .            . ."                                         -14-                                         -14-                 Sylvania  argues that the order under review may, in the            alternative,  be  upheld  based  on  the  magistrate  judge's            finding  that only  a  very  small  percentage of  the  shoes            manufactured by Sylvania for Knapp were defective.  If only a            very small fraction  of the shoes made by  Sylvania for Knapp            were defective, it might well follow that the damages claimed            by Knapp were wildly excessive and that the injunction was no            longer needed or  ought to be reduced in amount.   After all,            practically all of  the types  of damage  claimed in  Knapp's            complaint (and recited above) depend as a practical matter on            the  premise  that  a  large percentage  of  the  shoes  were            defective.                   But in this case we have no way to review or sustain the            critical determinations--that the defective shoes were a very            small  quantity--about  three percent--because  there  are no            supporting findings by the magistrate judge.  Fed. R. Civ. P.            52(a)  requires that "in  granting or  refusing interlocutory            injunctions the court shall .  . . set forth the  findings of            fact and conclusions  of law which constitute the  grounds of            its action."   This requirement,  which also attaches  to the            court's own final  decision in a jury waived  trial, id., but                                                                 ___            not to  most other rulings,  id., reflects the  importance of                                         ___            injunctions  and of  providing an  adequate  basis for  their            appellate review.                                         -15-                                         -15-                 Sylvania argues  that Rule  52(a) is  not applicable  to            this case  because the  rule, by its  terms, applies  only to            decisions "granting  or refusing  interlocutory injunctions."            Although  there  is  some  general  support  for   Sylvania's            position, see Baltimore & O. R. R. v. Chicago R. &  I. R. R.,                      ___ ____________________    ______________________            170 F.2d 654, 659 (7th Cir. 1948), cert. denied, 336 U.S. 944                                               ____________            (1949); Munoz  v. Porto Rico Ry.  Light & Power  Co., 83 F.2d                    _____     __________________________________            262,  270 (1st  Cir.)  (construing Equity  Rule  70 1/2,  the            precursor of Fed.  R. Civ. P. 52(a)), cert.  denied, 298 U.S.                                                  _____________            689  (1936), both  the  cases  cited  involved  the  district            court's refusal  to dissolve  a preliminary  injunction.   We                    _______            agree that where a court made adequate findings when granting            the preliminary  injunction in the  first place, it  need not            restate those findings in order to maintain the injunction.                 A decision to vacate  an existing preliminary injunction                               ______            is quite another matter.  It is not only a substantial change            in the status quo but is the effective equivalent of a denial                                                                   ______            of  a preliminary  injunction,  an event  that unquestionably            triggers Rule  52(a)'s requirement  of findings.   We do  not            think that  it stretches Rule 52(a) unduly  to apply it to an            order vacating a  preliminary injunction.   But the need  for            findings in such a case is so strong that we would impose the            findings  requirement ourselves if we thought that Rule 52(a)            had left an inadvertent loophole.                                         -16-                                         -16-                 Given  our  conclusion  that Rule  52(a)  findings  were            required, we cannot sustain the order vacating the injunction            in this  case on the alternative ground  offered by Sylvania,            namely,  the  small  percentage  of  defective  shoes.    The            magistrate   judge  did  not   rely  at  all   on  Sylvania's            alternative  ground.  Instead, in  a footnote sentence at the            close  of the certification, the magistrate judge observed in            explaining the  questions being certified:   "[T]he plaintiff            has shown that             three  (3) per cent  of the shoes  were allegedly defective."            We do not think that this sentence is sufficient for purposes            of Rule 52(a).                 Admittedly, the case law lays down few clear rules as to            what is  adequate compliance with  Rule 52(a).  We  have said            that "conclusory  findings" are  not enough,  Thermo Electron                                                          _______________            Corp. v. Schiavone Construction Co.,  915 F.2d 770, 773  (1st            _____    __________________________            Cir. 1990), but  also that "the `judge need  only make brief,            definite,  pertinent  findings   and  conclusions  upon   the            contested  matters;     there  is  no  necessity   for  over-            elaboration  of  detail  or  particularization  of   facts.'"            Applewood  Landscape & Nursery Co. v. Hollingsworth, 884 F.2d            __________________________________    _____________            1502, 1503  (1st Cir.  1989).  The  difficulty in  devising a            yardstick  is not  surprising when  one  considers the  great            diversity of disputes governed by the rule.                                         -17-                                         -17-                 In  the abstract,  one might  or  might not  describe as            "conclusory" a magistrate  judge's statement  that the  shoes            delivered by  Sylvania to  Knapp had a  defect rate  of about            three percent:   the statement is specific  and concrete, but            unexplained.   In truth, pinning  a label like  "ultimate" or            "conclusory"  on a single sentence  is not very helpful; Rule            52(a)  calls  for  a  level  of  detail  adequate  to  permit                                                     ________            appellate  review on  factual issues,  and  what is  adequate            depends on the  importance of an  issue, its complexity,  the            depth  and nature of evidence presented, and similar elements            that  vary  from case  to  case.    See generally  Kelley  v.                                                _____________  ______            Everglades Drainage District, 319 U.S. 415, 420 (1943).            ____________________________                 Here the  percentage of defects is critically important.            Of course, the  magistrate judge could not know  that his own            basis for dissolving  the injunction would  be set aside  and            that Sylvania would rely on the percentage finding to support            the  dissolution order.   But  to the  extent that  the three            percent finding is proffered by Sylvania  as a foundation for            the dissolution order,  it must meet the test  of Rule 52(a).            For this purpose,  the importance of the  issue requires more            rather than less detail.                   In this case  there is no  detail whatever.   We do  not            know  how the magistrate  judge defined "defect,"  a disputed            issue  at trial,  nor how  he  arrived at  the three  percent            figure, nor how he handled Knapp's claim  that the percentage                                         -18-                                         -18-            of shoes  actually returned  to Sylvania  greatly understated            the percentage of defects.7   On all of these issues there is            no indication as to why certain witnesses were credited, what            data  was used  or how  it  was construed,  or why  competing            evidence was rejected.  We are thus unable to make a reasoned            judgment  whether, on  this critical  issue  of defects,  the            magistrate   judge's  finding   was  or   was  not   "clearly            erroneous."  Fed. R. Civ. P. 52(a).                 In fairness to the magistrate judge, we note that he did            not  make  the  "approximately three  (3)  per  cent" finding            either to support a final determination of damages (which has            not   yet  occurred)  or   to  support  dissolution   of  the            preliminary injunction (it is Sylvania  who is trying to make            the finding play that role).  Rather the footnote finding was            made to flesh out a hypothetical statement in the body of the            certification.   There  is  no  requirement  for  Rule  52(a)            findings in certifying a legal question to a state court.                                           IV.                 The trial in this case concluded on November 25, 1991, a            year and a half before  entry of the interlocutory order that            forms the basis  of this appeal and  over two years  prior to            the present decision.  We  see little point in remanding this                                            ____________________                 7Knapp claimed  that many  of the  defective shoes  were            simply disregarded by  customers and that other  shoes, which            Knapp sought  to return  to Sylvania  as defective,  were not            accepted by Sylvania.                                         -19-                                         -19-            case  for further  findings  with  respect  to  the  district            court's  order dissolving the preliminary injunction.  In our            view, the energies of both  the court and the litigants would            be more fruitfully directed toward a final resolution of this            case on the merits.                     Sylvania is,  of course,  free to file  a new  motion to            dissolve the preliminary injunction.  But unless  it can show            some  urgent need  for the  release  of the  funds, we  would            expect  the magistrate judge  to refuse summarily  to revisit            the  preliminary  injunction  until  the  final  decision  is            issued.  Knapp's  case was once thought to  have enough merit            to  justify  an injunction;  as  yet there  are  no supported                                                                _________            findings that warrant a reappraisal of potential damages; and            Sylvania is apparently in the process of distributing  all of            its unencumbered assets.                 As for the certification, it relates only to the limited            issue  of attorney's  fees under  chapter 93A.   Possibly the            Supreme Judicial Court will have answered the questions posed            by  the time  the  magistrate  judge is  ready  to issue  his            decision on  the merits.   If not,  the magistrate  judge may            think that the wiser course, in litigation that has otherwise            been ripe  for resolution  at least since  March 1992,  is to            decide the  whole case  and make his  best conjecture  on the            chapter 93A issues.                                           -20-                                         -20-                 One  final issue  remains.   In  the order  vacating the            preliminary injunction,  the magistrate judge  also dissolved            the attachment on trustee process.  An attachment on  trustee            process is  an interim remedy  that was used here  to prevent            certain  persons owing funds to Sylvania from disbursing them            to Sylvania, in effect protecting funds that might be used to            satisfy a  judgment for Knapp.  See Mass. Gen. Laws. Ann. ch.                                            ___            246   1; Fed. R. Civ.  P. 64; Mass R. Civ. P. 4.2.   Our stay            pending review kept both the injunction and the attachment in            effect until disposition of this appeal.                   Sylvania argues  that the dissolution  of the attachment            is  not  equivalent  to  the  dissolution  of  a  preliminary            injunction and is not an appealable event.  Knapp argues that            the attachment is appealable, citing Teradyne, Inc. v. Mostek                                                 _____________     ______            Corp.,  797 F.2d  43, 44-47  (1st Cir. 1986),  but we  see no            ____            reason  to  resolve  this  issue.    The  magistrate  judge's            rationale   for  dissolving  both   the  injunction  and  the            _________            attachment was  the same.  As we have found that rationale to            constitute legal error,  we assume that the  magistrate judge            will  on his  own  motion maintain  the  attachment in  force            unless and until there is a proper basis for modifying.                   Sylvania says that  the funds under the  attachment have            been  earning no interest  for two years.   If the  funds are            unequivocally  owing to  Sylvania, there  should  be an  easy            means for dealing with this problem (e.g.,  by an arrangement                                                 ____                                         -21-                                         -21-            transferring the funds to an interest bearing account subject            to  the  attachment).    Nothing  in  this  opinion  prevents            Sylvania   from  applying  to  the  magistrate  judge  for  a            modification of the  attachment to address this  or any other            problem pertaining to the attachment.                 The magistrate judge's order  dissolving the preliminary            injunction is vacated.                          _______                                         -22-                                         -22-
