
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1067                             CASAS OFFICE MACHINES, INC.,                                 Plaintiff, Appellee,                                          v.                         MITA COPYSTAR AMERICA, INC., ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Ricardo  F.  Casellas,  with  whom  Mario  Arroyo,  and   Fiddler,            _____________________               _____________         ________        Gonzalez & Rodriguez, were on brief for appellants.        ____________________            Luis  A. Melendez-Albizu, with whom Luis Sanchez-Betances, Sanchez            ________________________            _____________________  _______        Betances & Sifre,  Nilda M. Cordero de Gomez, and Jorge E. Perez-Diaz,        ________________   _________________________      ___________________        Federal Litigation Division, United States Department of Justice, were        on brief for appellee.                                 ____________________                                  December 14, 1994                                 ____________________                      CAMPBELL, Senior Circuit  Judge.  Mita Copystar  of                                _____________________            America, Inc.  ("Mita")  appeals from  the  district  court's            order  granting  summary  judgment  and  issuing  a permanent            injunction in favor of Casas Office Machines, Inc. ("Casas").            The  action began  when Casas  sued Mita  and two  fictitious            defendants,  John Doe and Richard Roe,  in the Superior Court            of Puerto Rico,  San Juan Part.  Organized  under the laws of            California  and with its  principal place of  business in New            Jersey, Mita removed the action to the United States District            Court for the District of Puerto Rico.  After removal, Casas,            by  an amendment  to its  complaint, replaced  the fictitious            defendants with  two named defendants, Caguas  Copy, Inc. and            Oficentro  J.P., Inc.,  which,  like Casas,  are Puerto  Rico            corporations.  Complete diversity  of citizenship between the            parties was thus destroyed, although this fact was not called            to  the district court's attention at the time.  The district            court  proceeded to deny  Mita's motions  to dismiss  and for            summary  judgment,  and  it  allowed  Casas's  motion  for  a            permanent injunction enjoining Mita from impairing a contract            entered into with Casas.  Now, for the  first time on appeal,            Mita  points out  the  jurisdictional problem  caused by  the            addition of the nondiverse  parties.  Mita asks us  to vacate            the judgment below and order the district court to remand the            action  to  the Superior  Court of  Puerto  Rico.   Mita also            attacks the district court's  decision on the merits, arguing                                         -2-            that  summary judgment  was  improper and  that the  district            court erred in granting the permanent injunction.                                          I.                      Incorporated   in  Puerto  Rico,  Casas  sells  and            distributes   office  and  photocopying   equipment  in  that            Commonwealth.  In 1983, Casas entered into an  agreement with            Mita,  a supplier  of office  and photographic  equipment, to            distribute Mita products in Puerto Rico.  As noted, Mita is a            California  corporation with its  principal place of business            in  New  Jersey.   Following  a period  of  strained business            relations, Casas and Mita executed a second agreement in 1989            (the "1989 Agreement") granting  Casas the exclusive right to            distribute Mita's  products in  the "Greater San  Juan" area.            Paragraph  5 of  the 1989  Agreement, however,  provided that            Casas's inability to meet or exceed 85% of a set  sales quota            would result in termination  of the exclusivity provisions of            the contract.  Asserting that Casas had failed to achieve the            85% threshold, Mita terminated Casas's exclusive distribution            rights      but  retained  Casas  as  a  distributor      and            designated  two new  distributors in  the "Greater  San Juan"            area.                        Casas responded on February 1, 1991, by suing Mita,            John  Doe, and Richard Roe1  in the Superior  Court of Puerto                                            ____________________            1.  Paragraph 3 of Casas's complaint said:                                         -3-            Rico,  San  Juan  Part.   Casas  alleged  that  (1) Mita  had            deprived  Casas of its  exclusive distribution rights without            just cause  in violation of P.R.  Laws Ann. tit. 10,     278-            278d 91976) (referred to in the complaint and hereinafter  as            "Law 75"), (2)  defendants had conspired to  deprive Casas of            its  right to sell and distribute Mita products, (3) Mita had            impaired  Casas's exclusive  distribution agreement,  and (4)            defendants   had   intentionally   interfered  with   Casas's            contractual relationship with Mita.  Casas sought preliminary            and permanent injunctive relief, as well as monetary damages.                      Alleging the existence  of diversity  jurisdiction,            Mita removed the  action to the United  States District court            for  the  District   of  Puerto  Rico   on  March  6,   1991.            Thereafter, Casas amended its  complaint twice.  An amendment                                            ____________________                      Codefendants John Doe and Richard Roe are                      fictitious   names   used  to   refer  to                      defendants  whose  names  are unknown  at                      present.  Said defendants are the natural                      persons and/or  corporate and/or judicial                      entities  who  together  with  MITA  have                      conspired,   with    knowledge   of   the                      contractual relationship between MITA and                      Casas,  to  deprive  the latter  of  said                      contractual  relationship,  directly  and                      indirectly interfering therewith, causing                      the  damages  hereinafter  itemized.   To                                                             __                      plaintiff's     best    knowledge     and                      _________________________________________                      understanding, John Doe  and Richard  Roe                      _________________________________________                      are   citizens   and  residents   of  the                      _________________________________________                      Commonwealth of Puerto Rico and  are also                      _________________________________________                      liable  to  plaintiff  pursuant   to  the                      _________________________________________                      allegations mentioned hereinafter.                      _________________________________            (emphasis added).                                         -4-            filed  on March 9, 1992, added a fifth count,2 and eliminated            Casas's  request  for a  preliminary  (but  not a  permanent)            injunction.  By a second motion  to amend, brought on May 14,            1992, Casas sought to  replace the fictitious defendants with            Caguas  Copy,   Inc.  ("Caguas")  and  Oficentro  J.P.,  Inc.            ("Oficentro")    the corporations that Mita had designated as            new  distributors   in  the   Greater  San  Juan   area  upon            terminating Casas's exclusive distribution rights.  Paragraph            3 of Casas's Second Amended Complaint read:                      Codefendants   Caguas   Copy,  Inc.   and                      _________________________________________                      Oficentro    J.P.,    Inc.   are,    upon                      _________________________________________                      information    and   belief,    corporate                      _________________________________________                      entities organized pursuant  to the  laws                      _________________________________________                      of the Commonwealth  of Puerto Rico, with                      _________________________________________                      Principal offices located  at Suite  B-3,                      _________________________________________                      Goyco  Street #  10,  Caguas,  P.R.,  and                      _________________________________________                      Diamante  Street  #  24,   Villa  Blanca,                      _________________________________________                      Caguas,   P.R.,   respectively.      Said                      ______________________________                      defendants   are  the   corporate  and/or                      judicial entities who together  with MITA                      have  conspired,  with  knowledge of  the                      contractual relationship between MITA and                      Casas,  to  deprive  the latter  of  said                      contractual  relationship,  directly  and                      indirectly interfering therewith, causing                      the  damages  hereinafter  itemized.   To                                                             __                      plaintiff's     best    knowledge     and                      _________________________________________                      understanding,  Caguas   Copy,  Inc.  and                      _________________________________________                      Oficentro  J.P.,  Inc.  are citizens  and                      _________________________________________                      residents of the  Commonwealth of  Puerto                      _________________________________________                      Rico  and  are also  liable  to plaintiff                      ____                      pursuant  to  the  allegations  mentioned                      hereinafter.                                            ____________________            2.  Count Five  alleged  that defendants  had  illicitly  and            tortiously contracted  for the distribution of  Mita products            in Puerto Rican  territories in which Mita had  granted Casas            the exclusive right to distribute its products.                                          -5-            (emphasis  added).  Four days  later, on May  18, 1992, Casas            moved the  district  court for  an  expedited review  of  its            second  motion  to amend  its  complaint.   Such  review  was            necessary,  said  Casas,  because  Oficentro  was  under  the            protection  of the  United  States Bankruptcy  Court for  the            District  of  Puerto  Rico      which  had  ordered that  all            creditors file their  proof of  claims on or  before June  8,            1992    and Casas could  not file a proof of claim  until its            motion to  amend was  granted.   The  district court  allowed            Casas's second amendment in early June 1992.                      In   the  meantime,  Mita  had  moved  for  summary            judgment  on February 12, 1992.  It argued primarily that (1)            Mita did  not impair its contractual  relationship with Casas            because  it merely enforced its rights under the terms of the            1989  Agreement, (2) even if it were found that Mita impaired            its contractual relationship with  Casas, Mita had just cause            to do so,  and (3) Casas's suit  was barred by the  equitable            doctrine  of laches.  On March 16, 1992, Casas opposed Mita's            motion for  summary judgment, and brought  a cross-motion for            partial interlocutory  summary judgment on its  Law 75 claims            (Counts One and Three), renewing  its request for a permanent            injunction.3  Mita,  in turn,  filed, on April  13, 1992,  an                                            ____________________            3.  In  its  original  complaint,  Casas  had  requested  the            district court to                       issue  a   permanent  injunction  against                      Mita,  ordering it  [(1)]  to  cease  and                                         -6-            opposition to Casas's  cross-motion for  summary judgment  in            which   it  maintained,  inter   alia,  that   (1)  permanent                                     _____   ____            injunctive  relief is  not available  under Law  75, and  (2)            ordering permanent  injunctive relief  in this case  would be            unconstitutional.   Finally, in  a separate motion,  filed on            June 4, 1992, Mita sought to dismiss Casas's complaint on the            grounds that Casas had engaged in a fraud upon the court.                      The United States magistrate judge  reviewed Mita's            motions  to dismiss  and  for summary  judgment,  as well  as            Casas's cross-motion for summary  judgment.  In a  report and            recommendation  issued on  September 2, 1993,  the magistrate            judge concluded that (1) Casas had not committed fraud on the            court, (2) Casas  was not  barred by the  doctrine of  laches            from pursuing its claims under Law  75, (3) Mita did not have            just  cause  under  Law  75 to  terminate  Casas's  exclusive            distribution rights because it failed to demonstrate that the            quota provision in the 1989  Agreement was reasonable at  the                                            ____________________                      desist  from  continuing  with  the  acts                      which constitute impairment of  the terms                      of the distribution relationship existing                      between  it and  Casas,  . .  . [(2)]  to                      abstain   from   appointing,    choosing,                      designating   or   arranging  for   other                      additional    distributors   and/or    in                      substitution  of Casas[,] and . . . [(3)]                      to   abstain   from  terminating   and/or                      altering  the  distribution  relationship                      existing   between    both   parties   or                      performing any act or omission whatsoever                      in  impairment  thereof, all  pursuant to                      the provisions of Law 75.                                         -7-            time of Casas's  nonperformance, (4)  a permanent  injunction            may be  ordered under Law 75,  and (5) Mita  had impaired its            contractual  relationship  with  Casas.    Consequently,  the            magistrate judge  recommended that  the  district court  deny            Mita's motions to dismiss and for summary judgment, and grant            Casas's cross-motion for summary judgment.                      In  its opinion  and  order filed  on November  18,            1993,  the  district  court  adopted all  of  the  magistrate            judge's  recommendations,  thereby  granting  Casas's  cross-            motion  for summary judgment on its Law 75 claims (Counts One            and  Three).4    Casas   Office  Machines  v.  Mita  Copystar                             ________________________      ______________            Machines, 847 F. Supp. 981, 983 (D.P.R. 1993).  In a judgment            ________            entered  the  same  day,  the district  court  denied  Mita's            motions  to dismiss  and  for summary  judgment, and  granted            Casas's motion for  an injunction permanently enjoining  Mita            from  impairing  the  1989  Agreement  without  just  cause.5                                                   ____________________            Mita,  pursuant to  28 U.S.C.    1292(a)(1)  (1988),6 appeals                                            ____________________            4.  The district court did  not decide Counts Two, Four,  and            Five of Casas's complaint, and, to our knowledge, they remain            unresolved.             5.  The district  court emphasized  in its opinion  and order            that  it  was  not  placing Mita  in  involuntary  servitude.            According  to  the  district  court, Mita  could  impair  its            contractual relationship with Casas in the future if it could            demonstrate just cause for doing so.            6.  Section 1292(a)(1) provides in relevant part:                      [T]he  courts  of   appeals  shall   have                      jurisdiction of appeals from:                                         -8-            from this interlocutory  decision.  Mita argues  principally:            (1) that diversity jurisdiction  was defeated when Caguas and            Oficentro were substituted for the fictitious defendants; (2)            that  the district court improperly entered summary judgment;            and (3) that the district court improperly issued a permanent            injunction.                                         II.                      Before  we  reach  the  issue   of  subject  matter            jurisdiction,   we  respond  to   Casas's  challenge  to  our            appellate jurisdiction.   Casas maintains  that, under Carson                                                                   ______            v. American  Brands, Inc., 450 U.S. 79, 101 S. Ct. 993, 67 L.               ______________________            Ed. 2d  59 (1981), jurisdiction  under   1292(a)(1)  does not            exist  unless the  appellant demonstrates  that the  district            court's interlocutory  order "might  have a  serious, perhaps            irreparable,  consequence,  and   that  the   order  can   be            effectually challenged  only by immediate appeal."   450 U.S.            at  84 (internal  quotations omitted).   According  to Casas,            Mita  has  failed to  satisfy  these  requirements.   Casas's            argument is not well taken.                                            ____________________                             (1)  Interlocutory orders  of                           the  district   courts  of  the                           United States . . ., or of  the                           judges    thereof,    granting,                           continuing, modifying, refusing                           or  dissolving injunctions,  or                           refusing to  dissolve or modify                           injunctions,  except  where   a                           direct review may be had in the                           Supreme Court.                                         -9-                      The  Supreme  Court  has  said  that     1292(a)(1)            provides appellate  jurisdiction  over two  types of  orders:            those "that grant  or deny injunctions and  [those] that have            the practical  effect of granting or  denying injunctions and            have   `serious,   perhaps   irreparable,   consequence[s].'"            Gulfstream Aerospace Corp. v.  Mayacamas Corp., 485 U.S. 271,            __________________________     _______________            287-88,  108 S. Ct.  1133, 99 L.  Ed. 2d 296  (1988) (quoting            Carson,  450  U.S.  at 84).    Thus,  courts  of appeals,  in            ______            determining whether they have appellate jurisdiction  under              1292(a)(1), must, in the first instance, decide "`whether the            order appealed  from  specifically  [granted  or]  denied  an            injunction or merely had the  practical effect of doing so.'"            Morgenstern  v. Wilson,  29 F.3d 1291,  1294 (8th  Cir. 1994)            ___________     ______            (quoting  Kausler v.  Campey,  989 F.2d  296,  298 (8th  Cir.                      _______     ______            1993)).   If the  interlocutory order in  question "expressly            grants or denies  a request for injunctive relief, the Carson                                                                   ______            requirements  need not be  met and  the order  is immediately            appealable as  of right under   1292(a)(1)."  Morgenstern, 29                                                          ___________            F.3d at 1294-95 (observing that the  majority of the circuits            agree with  this principle, and citing  cases); see Feinstein                                                            ___ _________            v.  Space Ventures, Inc., 989 F.2d 49, 49 n.1 (1st Cir. 1993)                ____________________            (accepting  appellate  jurisdiction under     1292(a)(1), and            noting the distinction between "an interlocutory  order which            has the incidental effect of denying [or granting] injunctive            relief" and an order that "clearly and directly grant[s] a[n]                                         -10-            .  . . injunction").  On the  other hand, "if an order merely            has  the   practical  effect   of  granting  or   denying  an            injunction,  the Carson  . .  . test[s]  must be  satisfied."                             ______            Morgenstern, 29 F.3d at 1295.            ___________                      Here, the district court's order  expressly granted            Casas's motion for an  injunction barring Mita from impairing            the 1989 Agreement without  just cause.  Casas, 847  F. Supp.                                                     _____            at 990.  Accordingly, for the reasons discussed, the district            court's  order was  immediately appealable  as of  right, and            Mita  was not required to satisfy the Carson criteria.  Thus,                                                  ______            we  have appellate jurisdiction.  We now consider our subject            matter jurisdiction.                                             III.                      Mita  argues  that  there   is  no  subject  matter            jurisdiction in federal  court because complete diversity  of            citizenship was destroyed when the fictitious defendants were            replaced with  Caguas and Oficentro after  removal.  Although            Mita raises this  issue for the first time  on appeal, we are            obliged  to  address  it   because  a  defense  of   lack  of            jurisdiction over  the subject matter is  expressly preserved            against waiver by Fed.  R. Civ. P. 12(h)(3).   E.g., Halleran                                                           ____  ________            v. Hoffman, 966 F.2d 45, 47  (1st Cir. 1992).  Casas responds               _______            that, diversity jurisdiction, once established at the time of            removal,  could not be lost by  replacement of the fictitious            defendants with Caguas  and Oficentro, which  Casas describes                                         -11-            as   nondiverse,  dispensable  parties.    Alternatively,  if                              ___________            jurisdiction  was  indeed  defeated  by  the substitution  of            Caguas and Oficentro after removal,  Casas asks us to restore            it, nunc  pro  tunc,  by  dismissing  the  diversity-spoiling                _______________            defendants without prejudice.                       _________________                                          A.                      This   case   involves    no   federal    question.            Jurisdiction stands or  falls upon diversity of  citizenship.            It has long been settled that a "lack of `complete diversity'            between   the  parties   deprives   the  federal   courts  of            jurisdiction over the lawsuit."  Sweeney v. Westvaco Co., 926                                             _______    ____________            F.2d 29, 41 (1st Cir.) (citing Strawbridge v. Curtiss, 7 U.S.                                           ___________    _______            (3 Cranch)  267, 2 L. Ed.  435 (1806)), cert.  denied, 112 S.                                                    _____________            Ct.  274, 116  L.  Ed. 2d  226 (1991).    There was  complete            diversity between  the parties on  March 6,  1991, when  Mita            removed the case  to federal  court: Casas is  a Puerto  Rico            corporation,  and Mita  was  incorporated in  California  and            maintains  its principal  place  of business  in New  Jersey.            That  the fictitious  defendants, John  Doe and  Richard Roe,            might reside in Puerto Rico     as suggested by Casas in  the            original  complaint      was properly  disregarded  under  28            U.S.C.    1441(a)  (1988), which  provides in  relevant part:            "For purposes of removal . . ., the citizenship of defendants            sued  under fictitious  names shall  be disregarded."   After            removal,  however, Casas  replaced the  fictitious defendants                                         -12-            with Caguas  and Oficentro, which were  clearly identified as            Puerto  Rico corporations, like  Casas itself.   The issue is            whether  this  substitution,  which unquestionably  destroyed            complete  diversity, also  defeated  federal  subject  matter            jurisdiction.  We hold that it did.                          Casas  argues that  as  diversity jurisdiction  was            established at the commencement of the proceeding, it was not            later defeated by the mere naming of  the fictitious parties,            who were  dispensable,  not indispensable.   E.g.,  Freeport-                                                         ____   _________            McMoRan  Inc. v. K N Energy, Inc.,  498 U.S. 426, 428, 111 S.            _____________    ________________            Ct. 858, 112 L. Ed. 2d 951 (1991) (per curiam) (holding that,            because  there  was  complete   diversity  when  the   action            commenced,  diversity jurisdiction  was not  defeated by  the            addition   of  a   nondiverse   plaintiff,   which  was   not            indispensable);  Wichita R.R.  &  Light Co.  v. Public  Util.                             __________________________     _____________            Comm'n, 260 U.S. 48,  54, 43 S. Ct. 51, 67 L. Ed. 124 (1922).            ______            Under the general principle reflected in the above cases, the            existence of  federal jurisdiction here might  seem to depend            simply upon whether Caguas  and Oficentro were dispensable or            indispensable parties.   But "[f]ederal courts  are courts of            limited  jurisdiction,  and  .  . .  may  exercise  only  the            authority  granted to  them  by Congress."   Commonwealth  of                                                         ________________            Mass. v. Andrus,  594 F.2d  872, 887 (1st  Cir. 1979);  e.g.,            _____    ______                                         ____            Owen Equip. & Erection Co.  v. Kroger, 437 U.S. 365,  374, 98            __________________________     ______            S.  Ct. 2396,  57  L. Ed.  2d 274  (1978)  ("The limits  upon                                         -13-            federal jurisdiction, whether imposed by  the Constitution or            by  Congress,  must  be  neither  disregarded nor  evaded.").            Thus,  specific legislative  directives override  the general            principles  announced  in  these  cases, e.g.,  28  U.S.C.                                                        ____            1367(b) (Supp. V 1993)  (supplemental jurisdiction).7   Here,            as  we explain  below,  Congress has  indicated that  federal            diversity jurisdiction is defeated so long as, after removal,            fictitious defendants  are  replaced with  nondiverse,  named            defendants,   regardless  of  whether   they  happen   to  be            dispensable or indispensable to the action.                      As part of the  Judicial Improvements and Access to            Justice  Act of  1988, Pub.  L. No.  100-702, 102  Stat. 4669            (1988), Congress  enacted 28  U.S.C.   1447(e)  (1988), which            provides:                           If after removal the plaintiff seeks                      to   join  additional   defendants  whose                      joinder  would   destroy  subject  matter                      jurisdiction, the court may deny joinder,                                            ____________________            7.  Under 28 U.S.C.    1367(b), for instance, federal courts,            sitting   in   diversity,   "shall   not   have  supplemental            jurisdiction . . . over claims  by plaintiffs against persons            made  parties under  Rule 14,  19, 20,  or 24 of  the Federal            Rules of Civil  Procedure . . . when  exercising supplemental            jurisdiction over such claims  would be inconsistent with the            jurisdictional requirements of section 1332."  This  statute,            which  refers expressly  to  both  compulsory and  permissive            joinder, "does not allow joinder of additional parties if  to            do  so would defeat the rule of complete diversity."  Charles            A. Wright,  Law of Federal Courts    9, at 38  (1994).  Thus,                        _____________________            where Congress has specifically  so provided, the addition of            nondiverse,   dispensable   parties  will   defeat  diversity            jurisdiction,  even if  such  jurisdiction has  already  been            established at the start of the federal proceeding.                                           -14-                      or permit joinder  and remand the  action                      to the State court.            Although  this provision  relates expressly  to joinder,  the            legislative history  to the Judicial Improvements  and Access            to  Justice Act of 1988 indicates that   1447(e) applies also            to the identification of fictitious defendants after removal.            H.R.  Rep.  No. 889,  100th  Cong.,  2d  Sess. 72-73  (1988),            reprinted in 1988  U.S.C.C.A.N. 5982, 6033  ("Th[e] provision            ____________            also  helps  to identify  the  consequences  that may  follow            removal of a case with unidentified fictitious defendants.");            e.g.,   Lisa   Combs    Foster,   Note,   Section   1447(e)'s            ____                                      ___________________            Discretionary Joinder and  Remand: Speedy  Justice or  Docket            _____________________________________________________________            Clearing?, 1990 Duke L.J. 118, 121, 132  ("[I]f after removal            _________            the plaintiff  identifies the  Doe defendant as  a nondiverse            party, then pursuant to section 1447(e)  the court may either            deny joinder or permit joinder and remand.").                        Federal  courts  and  commentators  have  concluded            that,  under     1447(e),  the  joinder  or  substitution  of            nondiverse  defendants  after   removal  destroys   diversity            jurisdiction,   regardless   whether   such  defendants   are                            __________            dispensable or indispensable to the action.  E.g., Yniques v.                                                         ____  _______            Cabral,  985  F.2d 1031,  1034  (9th  Cir. 1993);  Washington            ______                                             __________            Suburban Sanitary Comm'n v.  CRS/Sirrine, Inc., 917 F.2d 834,            ________________________     _________________            835 (4th Cir. 1990);  Rodriguez by Rodriguez v.  Abbott Lab.,                                  ______________________     ___________            151  F.R.D.  529,  533  n.6  (S.D.N.Y.  1993);  Vasilakos  v.                                                            _________            Corometrics  Medical  Sys.,  Inc.,  No.  93-C-5343,  1993  WL            _________________________________                                         -15-            390283,  at *1-2 (N.D. Ill. 1993); Righetti v. Shell Oil Co.,                                               ________    _____________            711  F. Supp.  531, 535  (N.D. Cal.  1989); David  D. Siegel,            Commentary  on 1988 and 1990 Revisions of Section 1441, in 28            ______________________________________________________  __            U.S.C.A.   1441 (1994) (observing that when a plaintiff moves            to substitute a nondiverse,  named defendant for a fictitious            defendant, "the  plaintiff will meet the  new subdivision (e)            of   1447, which leaves it entirely to the court to determine            whether to refuse the addition and keep the case or allow the            addition  and then  remand  the  case  for  want  of  federal            jurisdiction  (caused by  the  loss of  diversity)"); Foster,            Note, supra, at 121 ("Significantly, section 1447(e) does not                  _____            require  the  court,  in  considering whether  joinder  of  a            nondiverse party should be permitted to deprive the court  of            jurisdiction,    to   determine   whether    the   party   is            `indispensable'  to  the  action  according to  Federal  Rule            19(b).  Unlike  the approach under the Federal Rules, joinder            of  a  non-indispensable  party  can  deprive  the  court  of            jurisdiction.").   We  find these  decisions persuasive.   We            conclude that diversity jurisdiction  was lost in the present            case  when the court allowed Casas to identify the fictitious            defendants as Caguas and Oficentro.                      Section 1447(e)'s legislative history supports this            conclusion.   In  enacting    1447(e), Congress  considered a            proposal  that  would have  allowed  the  joinder of  certain            nondiverse  parties  and, at  the  same  time, permitted  the                                         -16-            district  court,  in its  discretion,  to keep  the  case and            decide it  on the merits.  H.R. Rep. No. 889, 100th Cong., 2d            Sess.  72-73 (1988),  reprinted  in 1988  U.S.C.C.A.N.  5982,                                  _____________            6033-34 ("The  most obvious alternative [to    1447(e)] would            be to provide that  `the court may deny joinder,  dismiss the            action,  or permit  joinder  and either  remand to  the state            court  or  retain  jurisdiction.'");  see  David  D.  Siegel,                                                  ___            Commentary on 1988 Revision of Section 1447, in 28 U.S.C.A.              ___________________________________________  __            1447  (1994);  Foster,  Note,  supra, at  137-38.    Congress                                           _____            rejected  the  proposal,  however,  because  it  would   have            represented  a "departure from the traditional requirement of            complete diversity," and "provide[d]  a small enlargement  of            diversity jurisdiction."  H.R. Rep. No. 889, 100th Cong.,  2d            Sess.  72-73 (1988),  reprinted  in  1988 U.S.C.C.A.N.  5982,                                  _____________            6033-34.   We think that,  had Congress decided  that federal            courts   could  retain  jurisdiction   over  cases  in  which            plaintiffs  joined  or  substituted  dispensable,  nondiverse            defendants  after removal, it would have made that plain in              1447(e).                              This is not to say that it is unimportant whether a            nondiverse  defendant  whom  a  plaintiff seeks  to  join  or            substitute after removal  is dispensable or indispensable  to            the action.  If the  defendant is indispensable, the district            court's choices are limited to denying joinder and dismissing            the action pursuant  to Fed. R. Civ. P. 19,  or else allowing                                         -17-            joinder and remanding the case to the state court pursuant to              1447(e).  See Yniques, 985 F.2d  at 1035.  If, on the other                        ___ _______            hand, the  defendant is  dispensable, the district  court has            the options, pursuant  to   1447(e),  of denying joinder  and            continuing  its  jurisdiction  over the  case,  or permitting            joinder  and  remanding the  case to  state court.8   Id.   A                                                                  ___            district  court may not, however, do what the court below did            here, that is,  substitute the  nondiverse, named  defendants            for  the fictitious defendants     thereby  defeating federal            diversity jurisdiction    and then continue  to deal with the            merits of the dispute.                                           B.                      Although diversity jurisdiction  was defeated  when            Caguas  and Oficentro  were  substituted  for the  fictitious            defendants  after  removal,  jurisdiction could  be  restored            retroactively  in  appropriate circumstances,  if  Caguas and            Oficentro were  dispensable parties, by  dismissing them from            the action.   In  Newman-Green, Inc. v.  Alfonzo-Larrain, 490                              __________________     _______________            U.S.  826 109  S. Ct.  2218, 104  L. Ed.  2d 893  (1989), the            Supreme  Court held that  federal courts of  appeals have the            authority    like that  given to the district courts  in Fed.                                            ____________________            8.  "[A] district court, when confronted with an amendment to            add  a  nondiverse  nonindispensable  party, should  use  its            discretion  in deciding  whether to  allow that  party to  be            added."   Hensgens v.  Deere & Co., 833  F.2d 1179, 1182 (5th                      ________     ___________            Cir.  1987)  (describing  factors that  district  courts  may            consider in deciding whether or not to permit the addition of            dispensable, nondiverse parties).                                          -18-            R. Civ. P. 21     to dismiss dispensable,  nondiverse parties                                         ___________            to  cure defects in diversity jurisdiction.  490 U.S. at 832-            38.  Casas asks us to  exercise this power here by dismissing            Caguas and Oficentro without prejudice.                                   _________________                      Courts  may not,  of course,  dismiss indispensable                                                            _____________            parties  from   an  action  in  order   to  preserve  federal            jurisdiction.    But,  contrary   to  Mita's  assertions,  we            conclude that Caguas  and Oficentro are dispensable  parties.            Mita's principal  contention is that  Casas is barred  by the            doctrine of judicial estoppel  from asserting that Caguas and            Oficentro are dispensable parties  because Casas, in a motion            requesting relief from the automatic stay, represented to the            United  States Bankruptcy  Court for  the District  of Puerto            Rico  that Oficentro  is  an indispensable  party.   In  that            motion, Casas argued in the bankruptcy court that:                           2.   Creditor  CASAS wishes  to duly                      serve process, litigate and try the above                      mentioned  lawsuit  in the  U.S. District                      Court  against Debtor  [(Oficentro)], and                      the other defendants [(Mita  and Caguas)]                      before a  jury.  If CASAS  is not allowed                                       ________________________                      to  serve process and litigate its claims                      _________________________________________                      against    Debtor,    CASAS   would    be                      _________________________________________                      effectively   precluded  from   obtaining                      _________________________________________                      recovery under  its tortious interference                      _________________________________________                      and  contract  in   prejudice  of   third                      _________________________________________                      party's claims,  due  to  a  lack  of  an                      _________________________________________                      indispensable   party.     Concomitantly,                      _________________________________________                      CASAS'  constitutional  right  to have  a                      _________________________________________                      trial by jury on all its  legally tenable                      _________________________________________                      claims would be impaired.                      ________________________            (emphasis added).                                           -19-                      While  this  assertion is  manifestly at  odds with            Casas's present  position, we  are disinclined under  all the            circumstances to find that it  created an estoppel.  Judicial            estoppel is a judge-made doctrine designed to prevent a party            who  plays "fast  and  loose with  the  courts" from  gaining            unfair   advantage  through   the   deliberate  adoption   of            inconsistent positions  in successive suits.   See Scarano v.                                                           ___ _______            Central R.R. Co., 203 F.2d 510, 513 (3d Cir. 1953).  Here, it            ________________            does not appear that Casas succeeded in gaining any advantage            as a result of its earlier inconsistent statement made to the            bankruptcy  court.  While the court granted Casas's motion to            lift  the stay,  it  did so  on  grounds other  than  Casas's            representation  that Caguas and Oficentro were indispensable.            Mita  itself does  not  allege  that  it  relied  on  or  was            prejudiced by the statement in any way.  There is the further            fact that Mita  has played as "fast  and loose" as  has Casas            with the issue of  subject matter jurisdiction.  It  was Mita               the party now seeking remand to the Commonwealth courts               that removed the  case here.   After  the fictitious  parties            were identified, it made no effort to remand.  Only after the            district court ruled against it  did Mita decide that federal            jurisdiction  was a mistake.   We conclude that  Casas is not            estopped from taking the position it adopts now.  See Milgard                                                              ___ _______            Tempering, Inc.  v. Selas Corp.,  902 F.2d  703, 716-17  (9th            _______________     ___________                                         -20-            Cir. 1990); 18  Charles Wright et  al., Federal Practice  and                                                    _____________________            Procedure   4477, at 781 (Supp. 1994).9              _________                      Mita  next argues  that  Caguas and  Oficentro  are            indispensable  parties  under   a  Federal  Rules   of  Civil            Procedure  19(b)  analysis.   It  submits  that, because  the            permanent  injunction  compels  it  to  resume  an  exclusive            distribution relationship with Casas  in the Greater San Juan            area,   Caguas's  and   Oficentro's  contractual   rights  to            distribute  Mita  products  in  that  area   are  necessarily            canceled.   Moreover, Mita points out that Casas is seeking a            declaratory judgment decreeing Mita's distribution agreements            with  Caguas  and  Oficentro  null and  void.    Under  these            circumstances, says  Mita, this action cannot  "in equity and            good conscience" proceed without  Caguas and Oficentro, which            are entitled to protect their contractual interests.   We are            not persuaded.  A leading commentator writes:                      When  a  person is  not  a  party to  the                      contract  in litigation and has no rights                      or obligations under that  contract, even                      though  he may have  obligated himself to                      abide by the result of the pending action                      by another contract that is not at issue,                      he   will   not   be   regarded   as   an                      indispensable   party   in   a  suit   to                      determine obligations  under the disputed                                            ____________________            9.  We agree with  Casas that International Travelers  Cheque                                          _______________________________            Co.  v. Bankamerica  Corp., 660  F.2d 215,  223-24 (7th  Cir.            ___     __________________            1981) is distinguishable.   In that case, the  district court            had expressly relied on plaintiff's previous statement that a            party  was indispensable.  There was no such reliance in this            case.                                         -21-                      contract, although he may be a Rule 19(a)                      party to be joined if feasible.            7  Charles A. Wright et al., Federal Practice and Procedure                                           ______________________________            1613, at  199-200 (1986) (footnotes omitted)  (citing cases);            see Ferrofluidics Corp. v. Advanced  Vacuum Components, Inc.,            ___ ___________________    _________________________________            968  F.2d  1463, 1472  (1st Cir.  1992) ("`[I]t  is generally            recognized  that a person does not become indispensable to an            action to  determine rights  under a contract  simply because            that  person's   rights  or  obligations  under  an  entirely            separate  contract will  be  affected by  the  result of  the            action.'" (quoting  Helzberg's Diamond Shops, Inc.  v. Valley                                ______________________________     ______            West Des Moines Shopping  Ctr., Inc., 564 F.2d 816,  820 (8th            ____________________________________            Cir.  1977) (explaining the  rationale for the  rule))).  The            present  case fits  within  this principle.    As to  Casas's            request for  declaratory judgment,  Casas,  in its  appellate            brief,   "voluntarily   relinquishes   its   request   for  a            declaratory judgment seeking the  annulment of [Caguas's] and            [Oficentro's] dealership agreements."                      Although the  only claims  before us on  appeal are            those alleging violation of  Law 75, we note that  Caguas and            Oficentro are  similarly dispensable parties  with respect to            the remaining claims.   In each of the remaining  claims, the            defendants  are  alleged  to  be  joint  tortfeasors  or  co-            conspirators and are thus  jointly and severally liable.   It            is   well-established   that   joint   tortfeasors   and  co-            conspirators are generally  not indispensable  parties.   See                                                                      ___                                         -22-            Goldman, Antonetti, Ferraiuoli, Axtmayer &  Hertell v. Medfit            ___________________________________________________    ______            Int'l, 982 F.2d 686, 691 (1st Cir. 1993); 7 Charles Wright et            _____            al., Federal Practice and Procedure   1623, at 346-47 (2d ed.                 ______________________________            1986) ("[C]o-conspirators, like other joint tortfeasors, will            not be deemed indispensable parties.")                       That Caguas  and Oficentro are dispensable  to this            action does not,  in and of  itself, compel their  dismissal.            While the Supreme Court held in Newman-Green that "the courts                                            ____________            of  appeals  have  the  authority to  dismiss  a  dispensable            nondiverse  party," 490  U.S. at  837, it  "emphasize[d] that            such authority should be exercised sparingly," id.  The Court                                                           ___            explained:  "the appellate  court  should carefully  consider            whether the  dismissal of  a nondiverse party  will prejudice            any  of the parties  in the litigation.   It may  be that the            presence  of  the   nondiverse  party  produced  a   tactical            advantage for  one party or another."   Id. at 838.   In this                                                    ___            context, Mita  argues that Casas gained  a tactical advantage            by  Caguas's and  Oficentro's  presence in  the case  because            Casas was able to obtain financial and business records under            Federal Rules of Civil Procedure 33(a) and 34(a), which apply            expressly  to parties.  We do not agree, however, with Mita's            suggestion that these records  would have been beyond Casas's            reach  had  Caguas  and  Oficentro  not  been  designated  as            parties.  Under Fed. R. Civ.  P. 34(c), "A person not a party            to  the  action may  be  compelled to  produce  documents and                                         -23-            things  or to  submit to  an inspection  as provided  in Rule            45."10                      Thus, neither  Casas nor Mita  gained a significant            tactical advantage by the presence of Caguas and Oficentro in            the lawsuit.  Nevertheless, we  are concerned that Caguas and            Oficentro could  themselves face prejudice if  dismissed from            this   suit.     Caguas   and   Oficentro,  while   initially            characterized as John Doe  and Richard Roe, were contemplated            as  parties  to  this litigation  from  the  start,  and have            actively participated in  it since  June of  1992, when  they            were  substituted for  the  fictitious defendants.   Had  the            jurisdictional  defect been  called to  the  district court's            attention at that point, the district court would have either            dismissed  Caguas and  Oficentro  from  this action,  thereby            requiring Casas  to sue  them separately in  the commonwealth            court,  or joined them to  this action, thereby remanding the            entire  case to the  commonwealth court.   Either way, Caguas            and Oficentro  would have had their liability determined in a            single proceeding.   Instead,  because of the  jurisdictional            oversight, dismissal  of Caguas  and Oficentro at  this stage            could subject them to a new lawsuit before a new judge in the            Superior Court of Puerto Rico.                                              ____________________            10.  Mita baldly  asserts that  Casas could not  have secured            under Rule 45 the documents and information it obtained under            Rules  33 and 34.   Mita fails, however,  to explain why this            would be so.                                          -24-                      In  Newman-Green, there  was a  similar difficulty.                          ____________            The problem there was  remedied by terminating the litigation            against the dismissed defendant with  prejudice.  490 U.S. at            838.   A similar remedy may be  appropriate in this case.  We            note,  however, that  Newman-Green presents  a  stronger case                                  ____________            than  this  one  for  dismissing the  nondiverse  party  with            prejudice,  since  the  nondiverse  party in  that  case  had            already  had its  claim  adjudicated by  the district  court.            Here, by  contrast, Caguas  and Oficentro  have  not yet  had            their claims adjudicated by  the district court.   Since this            case is closer than  the case in Newman-Green and  since this                                             ____________            issue  has not been argued by  either party, we think it best            to allow it to be decided initially by the district court, on            remand, where the parties will have an opportunity to present            their arguments.                         Accordingly, we dismiss  Caguas and Oficentro  from            this action to preserve  jurisdiction but direct the district            court, on remand, to  determine whether the injury to  Caguas            and Oficentro  from being  dismissed from this  proceeding is            such  that  their dismissal  should  be  ordered  to be  with            prejudice to any further suit by Casas.  Caguas and Oficentro            having  been  dismissed, complete  diversity is  restored per            Newman-Green, and we retain subject matter  jurisdiction over            ____________            the claims between Casas and Mita.                                         IV.                                         -25-                      Having  disposed of  the jurisdictional  issues, we            come to the merits of Mita's appeal.  This appeal, of course,            is interlocutory, see note 6,  supra, being taken solely from                                           _____            the  granting  of  the  injunction  against  Mita.    But the            injunction  can  stand only  if  the  court properly  awarded            summary judgment.  We accordingly confront the merits of that            ruling.                      On summary judgment, we review the district court's            decision de novo.   Velez-Gomez  v. SMA Life  Assur., Co.,  8                     __ ____    ___________     _____________________            F.3d  873, 874-75 (1st Cir.  1993).  A  court of appeals will            uphold summary  judgment only  if the record,  viewed in  the            light most favorable to the nonmovant, reveals that there are            no genuine issues  of material  fact and that  the movant  is            entitled to  judgment as a matter  of law.  Celotex  Corp. v.                                                        ______________            Catrett, 477 U.S. 317, 324-25, 106  S. Ct. 2548, 91 L. Ed. 2d            _______            265 (1986).                      Mita's primary  argument is that  genuine issues of            material fact  preclude the  granting of summary  judgment to            Casas on its Law  75 claims.  Specifically, Mita  argues that            genuine issues  exist as  to: (1) whether  Mita impaired  its            contract  with Casas and (2) whether Mita had "just cause" to            do so.   To understand these arguments, we will  need to step            back and take a look at the applicable law.                      Law  75  protects  Puerto Rico-based  dealers  from            summary cancellation of  their dealership contracts  by their                                         -26-            principal  suppliers  after the  dealers  have  established a            favorable  market  for the  principal's  goods.   See  Warner                                                              ___  ______            Lambert Co. v. Superior  Court of Puerto Rico, 101  P.R. Dec.            ___________    ______________________________            378, 387 (1973), translated  in, 1 Official Translations 527,                             ______________            541  (1973).   The stated  purpose of  the law is  to protect            local  dealers from  abusive practices  by suppliers  who are            financially stronger than they  are.  See Medina &  Medina v.                                                  ___ ________________            Country  Pride  Foods, Ltd.,  88  J.T.S.  6162, 6168  (1988),            ___________________________            translated in, 858  F.2d 817,  820 (1st Cir.  1988).   Toward            _____________            that end, Law 75 prohibits suppliers  from taking any actions            that  would impair  such  contracts, unless  they have  "just            cause" for doing so:                      Notwithstanding   the   existence  in   a                      dealer's contract of  a clause  reserving                      to  the parties  the unilateral  right to                      terminate  the existing  relationship, no                      principal  or  grantor  may  directly  or                      indirectly perform any act detrimental to                      the established relationship or refuse to                      renew   said   contract  on   its  normal                      expiration, except for just cause.            P.R. Laws Ann. tit. 10,   978a.                        Law  75 establishes  a  rebuttable  presumption  of            impairment  when  a  supplier   appoints  another  dealer  in            violation  of its  exclusive  dealership  agreement with  its            original dealer:                      For the  purposes of  this Act  . .  . it                      shall  be presumed,  but for  evidence to                      the contrary, that a principal or grantor                      has impaired the existing  relationship .                      .  .  when   the  principal  or   grantor                      establishes  a distribution  relationship                                         -27-                      with one or  more additional dealers  for                      the area  of Puerto Rico, or  any part of                      said  area in conflict  with the contract                      existing between the parties.            P.R. Laws Ann. tit.  10,   278a-1(b)(2).  The  district court            adopted the magistrate's  determination that this presumption            applied  to  Mita.   Mita  disputes this  holding  on appeal.            However, Mita did not  dispute impairment before the district            court and, therefore,  waived its right to  make the argument            on  appeal.   Even without  the presumption,  moreover, Casas            presented  ample  evidence  of impairment  of  the  exclusive            dealership   through  Mita's   appointment   of  Caguas   and            Oficentro,  evidence which Mita did  not dispute.  See, e.g.,                                                               ___  ____            Draft-Line Corp. v. Hon Co.,  781, 844 (D.P.R. 1991),  aff'd,            ________________    _______                            _____            983 F.2d 1046 (1st Cir. 1993); General Office Prods. Corp. v.                                           ___________________________            Gussco  Mfg.  Inc.,  666 F.  Supp.  328,  331 (D.P.R.  1987).            __________________            Accordingly,  the only issue  on appeal is  whether there was            "just cause" for the impairment.                      Law 75's "just cause" limitation applies even where            a contract includes a  clause providing for termination under            specified  circumstances.    Because  many  such  termination            clauses were tied to distribution quotas or goals, amendments            to Law 75  in 1988 clarified what  "just cause" meant  in the            context of contracts that contain such clauses:                      The  violation  or nonperformance  by the                      dealer of  any provision included  in the                      dealer's contract fixing rules of conduct                      or distribution quotas  or goals  because                      it does not  adjust to  the realities  of                                         -28-                      the Puerto Rican  market at  the time  of                      the  violation  or nonperformance  by the                      dealer  shall not  be deemed  just cause.                      The   burden   of  proof   to   show  the                      reasonableness of the  rule of conduct or                      of the quota or  goal fixed shall rest on                      the principal or grantor.            P.R. Laws  Ann. tit. 10,   278a-1(c)(1988).  Thus  failure to            meet a distribution quota will only constitute just cause for            impairment  under Law  75  if  that  quota  is  shown  to  be            "reasonable"  given the state  of the Puerto  Rican market at            the  time of the alleged  violation.  See  Newell Puerto Rico                                                  ___  __________________            Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 22-23 (1st Cir. 1994).            ____    ________________                      The contract between  Mita and Casas  granted Casas            an exclusive dealership in the greater San Juan area, so long            as Casas met  85% of  a specific performance  quota.11   Mita            terminated the  exclusive dealership when, it  alleges, Casas            failed to meet 85% of the quota.  Under Law 75, however, Mita            could  not impair its contract without just cause.  Under the            above  provisions  of  Law  75,  Mita  had  "just  cause"  to            terminate  the exclusivity  provision only  if the  quota was            adjusted to the realities  of the Puerto Rican market  at the            time of Casas's failure to meet the quota.   Moreover, Law 75                                            ____________________            11.  The  quota called for Casas  to sell 300  copiers and to            generate $450,000  in sales of such copiers  during the first            13  months of the contract,  between April 1,  1989 and April            30, 1990.  Thus, to preserve the exclusivity provision, Casas            had to  sell 255 copiers (85%  of 300).  If  Casas fell below            255 copiers, it could  still retain a nonexclusive dealership            unless  its sales were 50%  below quota, in  which event Mita            could terminate any relationship whatsoever.                                          -29-            places  on  Mita's  shoulders   the  burden  of  proving  the            reasonableness  of the  quota.   Thus,  once Casas  moved for            summary judgment  and alleged an absence  of evidence showing            that the quota provision was reasonable, Mita was required to            come forth  with such  evidence in  order to  survive summary            judgment.   Celotex, 477 U.S. at 325 (Where the nonmovant has                        _______            the burden of proof, the movant need do no more than aver "an            absence of evidence to support the nonmoving party's case".);            Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993).            ______    _____                      Mita contends that it submitted evidence sufficient            to  raise  a  genuine  issue  of  material  fact  as  to  the            reasonableness of  the quota.   It points to  letters between            its  counsel  and  Casas's  counsel,  and  a  declaration  by            Masaharu Ishidoya,  vice  president of  Mita's  international            division,   describing   the   negotiation  of   the   quota.            Ishidoya's  declaration indicated that Casas itself requested            that the  exclusivity provision be conditioned  upon a yearly            performance goal.  At his deposition, Ishidoya indicated that            the  300  copier  quota  in  the contract  was  a  negotiated            reduction from a quota of 500 copiers first proposed by Mita.            The 1989  contract contained express language  in which Casas            "acknowledges  that the  annual quotas  . .  . adjust  to the            realities  of the market" in Puerto Rico.  Ishidoya states in            his declaration  that he relied  upon Casas's representations            to that effect.  Mita also submitted a copy of  the letter it                                         -30-            sent  to  Casas, terminating  the  exclusive  dealership with            Casas.   In that letter,  Mita stated it  was terminating the            exclusivity  provision  in  the  contract  because  Casas had            failed  to  meet  the  quota  percentages  set  forth  in the            contract.                      Mita  further submitted  the declaration  of Rafael            Martinez  Margarida, the  Managing  Partner  and  Partner-in-            Charge of Management Consulting Services at Price Waterhouse.            Mita  retained Martinez as an expert witness to testify as to            the   reasonableness  of   the  contract   quota.     In  his            declaration, Martinez stated  that he examined  Puerto Rico's            External  Trade Statistics  ("PRETS")  for  imports  of  copy            machines to Puerto  Rico for  the period of  1985-1990.   The            declaration included the following table:            YEAR    QTY. IMPORTED       VALUE     GROWTH OVER PRIOR YEAR            ____    _____________       _____     ______________________            1985       3,054          3,427,143             N/A            1986       4,170          6,058,273             77%            1987       7,375          8,103,991             34%            1988       6,026          8,148,662              1%            1989       7,056          9,259,856             14%            1990       8,983         10,032,200              8%            Martinez noted that the value of imports increased every year            between 1985 and 1990.  Martinez also noted that the quota in            the contract was a projection  based on Casas's actual  sales            figures in 1985 (279  units), 1986 (153 units) and  1987 (230            units).  Finally, Martinez noted that  Casas's sales for 1989            (80  units) and  1990  (110  units) decreased  significantly,            while  the overall  number of  imports increased  during that                                         -31-            same  period.     Martinez  concluded  that   the  quota  was            reasonable given the historical  trend, that Casas "failed to            capitalize  on  the  opportunities  available  in  a  growing            market,"  and that its failure  to meet the  quota "cannot be            attributable to the conditions of  the Puerto Rico market for            photocopying machines."                      Casas points to various alleged flaws in Martinez's            methodology,  and argues  that these  flaws require  that his            declaration  be   completely  excluded  as   unprobative  and            incompetent.  Casas  argues that, in  failing to deduct  from            the import figures the number of copiers exported from Puerto            Rico, Martinez based his conclusions on an inaccurate picture            of  the internal copier market.  Casas also argues that these            same  import figures  include  imports of  all categories  of            copiers,  not just the categories of  copiers that Casas sold            as part of  its exclusive dealership  agreement, and thus  do            not accurately reflect the precise market in  which Casas was            operating.12   Casas  also  argues that  the quota,  although            based  on historical  sales  figures,  unreasonably  required                                            ____________________            12.  Casas also  argues that the yearly  data was irrelevant,            since Mita must provide evidence about the market on or about            May  1990, when the contract was terminated.  This is plainly            wrong.  Law 75  requires Mita to prove the  reasonableness of            the  quota "at the time of the violation or nonperformance by            the  dealer."  P.R. Laws Ann. tit.  10,   278a-1(c).  Casas's            alleged nonperformance  occurred  during the  period  between            April 1989 and May 1990.  Under the plain terms of Law 75, it            is the condition  of the  market during that  period that  is            relevant,  not the  condition of  the  market at  the precise            point of the contract's impairment by the supplier.                                         -32-            Casas  to double  its market  share in  13 months.   Finally,            Casas  argues  that  Martinez  failed  to   consider  various            relevant  factors in  his analysis,  including the  effect of            increased  intrabrand competition,  changes in the  number of            dealers  in the market, the effect of Hurricane Hugo, and the            impact of  the local economic recession.   Accordingly, Casas            argues, Martinez's  declaration must be excluded,  and Mita's            remaining evidence  is insufficient to raise  a genuine issue            of fact.                      The district  court found  that Mita had  failed to            present  evidence sufficient to  raise a genuine  issue as to            the reasonableness of the quota.  The court stated:                         The  magistrate  found, and  we agree,                      that the quota provision was unreasonable                      at the time of Casas' nonperformance.  In                      support of its  claim that the  quota was                      reasonable,  Mita presented  an unsworn13                      declaration by Rafael Martinez Margarida,                      a  certified public accountant (CPA).  In                      this  declaration  the CPA  asserted that                      his  examination  of   the  Puerto   Rico                      External Trade's [sic] Statistics (PRETS)                      reflected    a    growing   market    for                      photocopying  machine  imports  from  the                      period of 1985 to 1990, inclusive.  Thus,                      he concluded, Casas'  failure to meet the                      quota  could not be  attributed to market                      conditions.                         As the magistrate found,  Casas proved                      that   Mita's   argument  was   based  on                      erroneous statistics.  Among  the factors                      cited  by the  magistrate  which we  find                      most convincing, the CPA's  report failed                      to take into account essential aspects of                                            ____________________            13.  The  unsworn   declaration  was  made   under  pain  and            penalties of perjury.  28 U.S.C.   1746.                                         -33-                      the  Puerto  Rican  market  such  as  the                      effects   of   Hurricane  Hugo   and  the                      recession  on  the  economy.    The CPA's                      report also failed  to take into  account                      the  effect  of  intrabrand   rivalry  on                      Casas's market share, a  rivalry fostered                      by Mita's impairment of  Casas' exclusive                      distributorship.                         Additionally,  Mita's  data as  to the                      market  for  copying  machines in  Puerto                      Rico   erroneously   included  types   of                      copying apparatus that were  not machines                      manufactured by Mita  and sold to  Casas.                      Thus,  Mita's  evidence  exaggerated  the                      size of the market by including within it                      devices such as thermocopying mechanisms,                      which  were  not among  those apparatuses                      made  and  sold  to Casas  by  Mita,  and                      minimized market conditions by failing to                      include   negative    factors   such   as                      Hurricane   Hugo,   the  recession,   the                      intrabrand rivalry etc.   Clearly, Mita's                      evidence  fails  to  create a  sufficient                      question to prevent the entry  of summary                      judgment in Casas'  favor since Mita  has                      the  burden of  proving that  the quota's                      [sic]  were  reasonable  at  the  time of                      Casas'  nonperformance,  given the  legal                      presumption    that    they   were    not                      unreasonable.                         Thus,   it  was   "unreliable,  lacked                      probative value, and does  not constitute                      competent evidence." [Citing Magistrate's                      Report.]     Mita  claims  now  that  its                      failure to submit more probative evidence                      was due to  its lack of time  in which to                      gather  and  present  it.   We  find this                      excuse pathetic and unconvincing.                      Casas,  847 F. Supp. at  988-89.  Mita argues that,                      _____            in  granting summary  judgment to  Casas, the  district court            exceeded its authority by improperly weighing the conflicting            evidence,  supra, and  deciding  an issue  of material  fact,            notably,  that the  quota provision  was unreasonable  at the            time of  Casas's nonperformance.  In  particular, Mita claims                                         -34-            that  the  district court  improperly  discredited Martinez's            testimony    and   that   this    constituted   error   since            determinations of  credibility and how much  weight to accord            testimony cannot be made at summary judgment and must be left            to the fact  finder at trial.   See Greenburg v.  Puerto Rico                                            ___ _________     ___________            Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987).            _______________________                      Casas  responds that  the  district  court did  not            weigh  Martinez's declaration, but  instead properly excluded            it  under Fed.  R.  Civ.  P.  56(e)14.    Under  Rule  56(e),            affidavits supporting  or opposing summary  judgment must set            forth facts that would be admissible in evidence.  A district            court may  exclude expert testimony  where it finds  that the            testimony has  no foundation or rests  on obviously incorrect            assumptions or  speculative  evidence.   Quinones-Pacheco  v.                                                     ________________            American Airlines,  Inc.,  979  F.2d  1, 6  (1st  Cir.  1992)            ________________________            (excluding expert opinion where based on flawed assumptions);            Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673 (D.C.            __________________    ______________            Cir.   1977)  (excluding  expert  testimony  for  failure  to            consider important factors).  Such decisions are reviewed for                                            ____________________            14.  Fed. R. Civ. P. 56(e) provides:                      Supporting and  opposing affidavits shall                      be  made on personal knowledge, shall set                      forth such  facts as would  be admissible                      in evidence, and shall show affirmatively                      that  the affiant is competent to testify                      to the matters stated therein.            Fed. R. Civ. P. 56(e).                                         -35-            abuse of discretion.  Quinones-Pacheco, 979 F.2d at 6.  Casas                                  ________________            argues  that the district  court properly excluded Martinez's            declaration as based on flawed data and, faced with a lack of            evidence  as to  the  reasonableness of  the quota,  properly            entered summary judgment in its favor.              A.   Martinez's Declaration was not Excludable                 _________________________________________                      It is not  clear that the  district court meant  to            treat Martinez's declaration as excludable under Fed. R. Civ.            P. 56(e).  The court nowhere articulated such  a ruling.  But            if  we assume the court  meant to exclude  the declaration as            incompetent for  summary judgment purposes, we  think it went            too far.   We  may accept  that Martinez's  opinion, standing            alone,  was  worth little  more  than the  inferences  a fact            finder might reasonably draw from  the factual data stated in            his  declaration.   Martinez was  not said  to have  had some            special familiarity  with, or  expertise in, the  Puerto Rico            copier market, apart from the data he presented and sought to            interpret.    However, that  data,  including  the PRETS  and            Casas's past sales figures, was admissible and, examined in a            light  most favorable  to Mita,  tends to  support Martinez's            conclusion  that the quota was  reasonable.  We  see no basis            under  Fed.  R.  Civ.  P.  56(e)  for  excluding  the  entire            declaration altogether.                       Under  Rule 56(e),  an  affidavit must  meet  three            requirements.  It:                                         -36-                      [1]  shall be made on personal knowledge,                      [2] shall set forth  such facts as  would                      be admissible in evidence, and  [3] shall                      show  affirmatively  that the  affiant is                      competent  to  testify  to   the  matters                      stated therein.            Fed. R.  Civ. P. 56(e).   Unless a  party moves to  strike an            affidavit under Rule 56(e),  any objections are deemed waived            and a court may consider the affidavit.  See  Davis v. Sears,                                                     ___  _____    ______            Roebuck & Co., 708 F.2d 862, 864 (1st Cir. 1983).  The moving            _____________            party  must  specify  the   objectionable  portions  of   the            affidavit and  the specific grounds  for objection.   See 10A                                                                  ___            Charles Wright et al., Federal Practice & Procedure   2738 at                                   ____________________________            507  (2d ed. 1983).  Furthermore, a court will disregard only            those  portions of  an  affidavit that  are inadmissible  and            consider the rest of  it.  See Lee  v. National Life  Assur.,                                       ___ ___     _____________________            632 F.2d 524 (5th  Cir. 1980) ("Where the  affidavit includes            both  competent and  incompetent evidence,  the  Court should            disregard   the   incompetent   evidence,   but   give   full            consideration  to that  which  is competent. . . .   This  is            nothing more  than the procedure  which would be  followed at            trial."); Wright,   2738 at 509.                      In moving  below to strike  the Martinez deposition            under Rule 56(e), Casas  made much the same arguments  it now            makes on appeal.  Casas did not  argue under the first clause                                        ___            in  Rule  56(e)  that   Martinez  lacked  personal  knowledge                                                      ___________________            sufficient to testify as to the PRETS and sales figures.  Nor            did  Casas argue  under the  third clause  that Martinez  was                                         -37-            incompetent to provide  his expert  interpretation of  these.            ___________            Rather,  Casas argued, under the second clause of Rule 56(e),            that  the  facts  contained   in  the  declaration  were  not            admissible in evidence because,  in essence, they were simply            not  sufficiently   material  to,   and  probative  of,   the            reasonableness of the quota.                      The district court characterized the declaration as            containing "erroneous  statistics."   Casas, 847 F.  Supp. at                                                  _____            988.    But neither  Casas nor  the  court asserted  that the            figures in the declaration were not accurate reproductions of            Puerto Rico's External Trade Statistics, nor did they dispute            the  correctness   of  the   other  data  mentioned   in  the            declaration.   The court's reason for  calling the statistics            "erroneous" seems not  to have been their  inaccuracy as such            but  rather  its  belief  that  they  did  not constitute  an            accurate  measure  of the  Puerto  Rico copier  market.   The            district  court  also  criticized  the  alleged  failure   of            Martinez's declaration to account for the impact of Hurricane            Hugo,  the effect of the  local recession, and  the impact of            intrabrand rivalry, matters raised in Casas's materials.                        But the increase in copier imports between 1989 and            1990, as reflected in  the PRETS, implicitly rebutted Casas's            evidence that the hurricane and the local recession had had a            materially adverse effect on  the Puerto Rican copier market.            In  finding that  the  declaration failed  to consider  these                                         -38-            "essential  aspects"  of  the  market,   the  district  court            overlooked the  relevant inference  that could be  drawn from            the  rise in  copier imports  shown in  the PRETS  figures.15            See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S. Ct.            ___ _______    ________________            1598,  26 L.  Ed  2d 142  (1970);  Aponte-Santiago v.  Lopez-                                               _______________     ______            Rivera, 957 F.2d 40, 41 (1st Cir. 1992) (the court at summary            ______            judgment "must  view the evidence and  all factual inferences            therefrom  in  the light  most  favorable  to the  non-moving            party").                        Casas's argument that the  PRETS and other data did            not  account for the impact of intrabrand competition is more            troubling.   See infra.  While the PRETS figures suggest that                         ___ _____            the market grew in spite of the hurricane and recession, they            indicate  nothing  directly  about  the  possible  impact  of            increased intrabrand  competition.  However, it  is one thing            to  note this silence of the evidence, another to exclude the            PRETS  figures because of it.   Evidence may  be relevant and            admissible even  though, standing alone, it  fails to address                                            ____________________            15.  The  cases  that Casas  cites  in  its brief,  Quinones-                                                                _________            Pacheco and Merit Motors,  are distinguishable.  In Quinones,            _______     ____________                            ________            the  expert testimony with respect to damages was based on an            assumption that was clearly unsupported by the record, namely            that  the plaintiff was permanently disabled.  979 F.2d at 6.            Similarly, in  Merit Motors,  the expert testimony  failed to                           ____________            account for significant factors that were clearly relevant to            the issue at hand.   569 F.2d at 673.   By contrast, in  this            case, it remains  open to debate whether  Hurricane Hugo, the            recession,  or intrabrand  competition had  an effect  on the            Puerto Rico market,  and what that  effect was, if any.   The            impact  of  these  factors  is  precisely  the  issue  to  be            resolved.                                         -39-            every issue raised in a case.  As noted below, Mita presented            other evidence  that arguably bolsters its  position that the            quota  was   reasonable.  Given  the   unlikelihood  of  ever            unearthing  irrefutable statistical evidence, we do not think            the PRETS  and other statistics, and accompanying inferences,            were  so  weak  that  they  should  be  rejected as  material            evidence in this case.                        The  district  court found  that the  PRETS figures            were also "erroneous" because they included  other categories            of  copying machines that were not the types of machines sold            by Casas.  Casas, 847 F. Supp.  at 988.  Casas pointed to the                       _____            fact  that the  1990 PRETS  figure included  imports of  five            categories of copiers, while Casas sold copiers in only three            of  these categories.    This "exaggerated  the  size of  the            market."  The absolute  size of the market was  not, however,            the issue.   Rather, the issue was  the trend in  the market,            i.e. whether the market was increasing or decreasing, whether            Casas's sales were consistent with the trend, and whether the            quota was  consistent with  Casas's historical market  share.            Martinez explained in his deposition that it was necessary to            include the  additional categories in the  1990 PRETS figures            in  order to  obtain comparable yearly  data, since  prior to            that year the data for the copier market had  not been broken            up  into the  five  subcategories.   The  inclusion of  these            categories did  not necessarily make his  testimony about the                                         -40-            trend in the market any less probative.  Casas did not attack            the  comparability  of  the  figures and  failed  to  present            evidence suggesting  that excluding the  categories, if  this            had indeed been possible, would have resulted in a  different            trend.                        We  conclude  that the  reasons  set  forth by  the            district  court were  insufficient  bases  for rejecting  the            Martinez declaration altogether,  assuming this was what  the            court  intended to  do.   Nor do  we find  Casas's additional            arguments  sufficient  for  its  outright  exclusion.   Casas            complains: that Martinez failed to deduct export figures from            the  import figures in order to  obtain a true measure of the            internal copier market; that  Martinez failed to consider the            fact that  the quota, according  to Casas, required  Casas to            double its market share within thirteen months; that Martinez            failed to consider  the fact  that during the  period of  the            contract, Casas had a  smaller region of exclusive dealership            than before.                        While  these additional  arguments are  not without            force, a party may not exclude, on summary judgment, relevant            and  otherwise  admissible  factual evidence  solely  on  the            ground  that  the  evidence  leaves a  number  of  unanswered            questions or  that it  appears somewhat less  persuasive than            the  movant's evidence  offered  in rebuttal.   If  there are            genuine issues  of fact,  the nonmovant  is entitled to  have                                         -41-            these  resolved  in the  trial forum,  where the  fact finder            hears live witnesses and can better assess all the facts.                        We conclude    if the district court intended to do            so    that it  did not have sufficient grounds  for excluding            Mita's declaration under Fed. R. Civ. P. 56(e).            B.   Sufficiency of Mita's Evidence to Raise Issue of Fact                 _____________________________________________________                      Having  found no  adequate  basis  to exclude  from            consideration  Martinez's  declaration,   we  next   consider            whether  that  declaration  and  Mita's  other evidence  were            sufficient  to  raise  a genuine  issue  of  fact  as to  the            reasonableness of  the  quota in  light  of the  Puerto  Rico            market.16                       It  is  instructive  first to  review  the  summary            judgment  standard.    "By  its  very  terms,  this  standard            provides  that the  mere  existence of  some alleged  factual            dispute  between the  parties  will not  defeat an  otherwise            properly  supported   motion   for  summary   judgment,   the            requirement  is that  there is  no genuine issue  of material                                               _______           ________            fact."  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-48                    ________    ___________________            (1986).    For  a dispute  to  be  "genuine,"  there must  be            sufficient evidence to  permit a reasonable trier  of fact to                                            ____________________            16.  Casas does not  address this issue  on appeal.   Casas's            only argument on appeal  is that the district court  properly            excluded the  Martinez declaration.   Although this  could be            interpreted  as  a  concession  that  summary   judgment  was            improper  if  the  Martinez declaration  was  admissible,  we            nevertheless  proceed to  address  the key  summary  judgment            issue.                                         -42-            resolve the issue in the non-movant's favor.  Boston Athletic                                                          _______________            Ass'n v. Sullivan,  867 F.2d  22, 24 (1st  Cir. 1989);  Astra            _____    ________                                       _____            Pharmaceutical Prod., Inc. v. Beckman Instruments, Inc.,  718            __________________________    _________________________            F.2d  1201, 1204  (1st Cir.  1983).   The evidence  cannot be            merely colorable, but must  be sufficiently probative to show            differing  versions of fact which justify  a trial.  However,            the evidence must at  all times be  viewed in the light  most            favorable  to the  nonmovant, and  all doubts  and reasonable            inferences  must  be  resolved  in  the   nonmovant's  favor.            Adickes 398 U.S. at 158; Rogen v. Ilikon Corp., 361 F.2d 260,            _______                  _____    ____________            266 (1st Cir. 1966).  Moreover,  this court may not weigh the            evidence.    Summary  judgment   "admit[s]  of  no  room  for            credibility determinations, no room for the measured weighing            of  conflicting evidence  such as  the trial  process entails            . . . ."  Greenburg,  835 F.2d at  936.  If the  facts permit                      _________            more  than one  reasonable  inference, the  court on  summary            judgmentmay notadopttheinferenceleastfavorabletothenonmovant.                      Viewing  Mita's  evidence  in  its  most  favorable            light, we think that, although the  question is close, Mita's            evidence   and  the   reasonable  inferences   therefrom  are            sufficient to raise a genuine  issue as to the reasonableness            of  the quota.  First,  the contract executed  by the parties            contains a  clause in which  Casas expressly agreed  that the            quota  was reasonable in light of the realities of the Puerto            Rico  market.   We  do not  suggest that  such  a clause  was                                         -43-            binding, since public policy  would presumably not permit the            _______            provisions  of Law 75 to  be contracted away.17   However, we            think  Casas's express  agreement  in the  contract that  the            quota  was  reasonable  is  admissible  evidence  tending  to            establish the reasonableness  of the quota at  the time Casas            signed  the  contract.    Bolstering the  weight  of  Casas's            concession  were  the  letters   from  Mita's  attorneys  and            Ishidoya's testimony showing  that Casas had been  successful            in renegotiating  the quota downward from 500 to 300 copiers.            Its ability  to do  so suggests  a  degree of  parity in  the            parties' bargaining  positions, making  it  more likely  that            Casas  really believed the quota to be reasonable at the time            it signed the contract.18                      In   addition,  inferences   from  the   PRETS  and            historical sales figures  contained in Martinez's declaration                                            ____________________            17.  Cf.  P.R.  Laws  Ann.  tit.  30,     3372  (1991)  ("The                 ___            contracting parties may make  the agreement and establish the            clauses  and  conditions  which   they  may  deem  advisable,            provided they are  not in contravention  of laws, morals,  or            public order."); In re Pagan Ayala, 117 D.P.R. 180, 187 & n.4                             _________________            (1986), Translated  in, 17  Official Translations 216,  223 &                    ______________            n.4 (1986) (suggesting that contracts  exempting attorneys ex            ante from malpractice suits are void).            18.  Casas argues that any  evidence of reasonableness of the            quota at a  time prior  to the period  of nonperformance  was            irrelevant here.  However, viewed in the light most favorable            to Mita, we think that evidence of reasonableness immediately            prior to the  term of  the contract was  material.   Combined            with Martinez's declaration indicating  that the Puerto  Rico            copier market did not subsequently decrease, but rather grew,            this evidence  is probative of the  continuing reasonableness            of  the quota between April  1989 and May  1990, the relevant            period.  See note 12, supra.                     ___          _____                                         -44-            suggest that if  the quota was  reasonable when the  contract            was signed, it remained  so during the term of  the contract.            The  contract required Casas to sell 255 copiers (85% of 300)            during  a 13-month  period in order  to retain  its exclusive            dealership.  This  figure was  not grossly out  of line  with            Casas's historical 12-month sales  figures: (297 in 1985, 153            in 1986, and  230 in 1987).  The  PRETS figures indicate that            the market for copiers actually increased during  the term of            the contract (from  7,056 in 1989 to 8,983 in  1990).  If the            quota  was based roughly on past sales, and if the market for            copiers did  not suffer  any decrease, it  could be  inferred            from  this evidence that the quota was reasonable in light of            the Puerto Rico market.                        Casas,  to  be  sure,  presented   much  persuasive            evidence in opposition.  Summary judgment, however, is  not a            substitute  for trial.  We  do not think  Casas's evidence so            undermined Mita's case that  Mita can be said to  have failed            to   raise   a  genuine   issue   of   fact  concerning   the            reasonableness of the quota.  At most, it indicated that many            issues  of  fact remained  to be  resolved  at trial.   Casas            presented  a declaration  by its  president, stating  that he            thought the quota unreasonable and that Mita had imposed  the            quota unilaterally by threatening to cancel their preexisting            distribution relationship.   Mita's vice  president, however,            asserted that  he "relied on Casas'  representations that the                                         -45-            performance goal and the related  percentages were reasonable            for the relevant  market."  Mita's evidence tends  to suggest            that  the  quota was  arrived  at  through bargaining,  Casas            having  persuaded Mita  to lower  the quota  from 500  to 300            copiers.   The Casas  declaration also states  that Hurricane            Hugo  and the  local recession  had an  effect on  the copier            market.  As  we have previously  said, however, Mita's  PRETS            figures minimized  these effects  by showing that  the copier            market increased during the term of the contract.                        Casas's   strongest   argument   is   that   Mita's            statistical evidence of market growth and of past sales fails            to account  for the fact  that, prior to 1988,  Casas was the            only distributor  of Mita  products  for all  of Puerto  Rico            (even  though  its  contract  then  was  nonexclusive).    By            contrast,  during the term of the  contract, Casas argues, it            faced stiff intrabrand competition.  Its exclusive dealership            covered only a portion  of Puerto Rico, the greater  San Juan            area.   While it could  also sell Mita  products elsewhere in            Puerto Rico on a nonexclusive basis, it now faced competition            from two other authorized  Mita dealers outside the exclusive            San Juan area as  well as from alleged unauthorized  sales of            Mita's copiers by Caguas and Oficentro.  According to  Casas,            its  competitors sold  327 Mita  copiers during  the 13-month            period  of the contract.  Casas argues that Mita's past sales            figures simply  do not  address the  issue of this  increased                                         -46-            intrabrand  competition, hence  they  say nothing  as to  the            quota's reasonableness during the relevant period.                      But  we   do  not  think  that   this  argument  so            undermines Mita's case as  to eliminate any contested factual            issue.  It is unclear how to assess the effects of intrabrand            competition in  calculating the reasonableness of  the quota.            The fact that  other nonexclusive dealers  were able to  sell            327  Mita copiers during  the relevant period  outside of San            Juan is a double-edged sword.  While, to be sure, these sales            suggest that Casas faced stern competition, it also indicates            the  existence of a strong  demand for Mita  copiers on which            Casas  was presumably free to capitalize to the extent it was            capable.    It  is  unclear,  moreover,  in  measuring  quota            reasonableness,  how   intrabrand   competition  is   to   be            distinguished from the  effects of  competition from  copiers            made by  other  manufacturers.   Such interbrand  competition            would have existed earlier as well as  in 1989-90.  While the            new  factor of  intrabrand competition doubtless  weakens the            predictive value  of Casas's  earlier sales figures,  it does            not totally vitiate their  relevance to quota reasonableness.            Casas knew when  it signed the contract  that its exclusivity            would  be limited to the  San Juan area,  and presumably also            knew of the  intrabrand competition it faced  elsewhere.  The            evidence permits  an inference that in  Casas's then judgment            the quota was  reasonable despite the  anticipated interbrand                                         -47-            and intrabrand competition.  Thereafter, the overall trend in            copier imports was up suggesting    at least, as one possible            interpretation of  the data    that  Casas's poor performance            was  due not to lack of opportunity  but to some fault of its            own.                      We conclude that Mita presented evidence sufficient            to  raise a  genuine issue  as to  the reasonableness  of the            quota.       Particularly    where   the    standard    here,            "reasonableness," is  so  amorphous, and  "hard" evidence  to            prove "reasonableness" so obviously  difficult to come by and            subject  to multiple  interpretations, we are  disinclined to            deny Mita its day  in court by raising the  threshold barrier            of proof too high.  See Rogen, 361 F.2d at 265-66 (suggesting                                ___ _____            that delicate issues of fact  "may well indicate a preference            for the antennae of the factfinder over the cruder instrument            of summary judgment");  Newell, 20 F.3d  at 23 (deferring  to                                    ______            the jury's judgment that supplier  failed to meet its  burden            of proving that  a quota was "reasonable" under  Law 75).  To            the extent that we  have doubts about the  appropriateness of            summary judgment, we  are required to resolve them  in Mita's            favor.                      Throughout its brief, Casas repeatedly asserts that            Mita has failed  to satisfy  its burden of  proving that  the            quota  is reasonable.    This misapprehends  the burden  Mita            faces at summary  judgment.   Mita is not  required to  prove                                         -48-            that the quota was  reasonable.  Rather it was  only required            to  present evidence sufficient  to raise a  genuine issue of            fact  as to reasonableness.   The burden is  one of producing            enough evidence  to show that it is  entitled to a trial, not            that it will necessarily  be successful at trial.   See First                                                                ___ _____            Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-            _____________________    ________________            89, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1966) ("It is true that            the  issue  of material  fact required  by  Rule 56(c)  to be            present  to  entitle  a party  to  proceed  to  trial is  not            required to be  resolved conclusively in  favor of the  party            asserting its existence; rather, all that is required is that            sufficient evidence supporting the claimed factual dispute be            shown  to require  a jury  or judge  to resolve  the parties'            differing  versions of the truth at trial.")  We believe Mita            has  satisfied  this  burden.    We  conclude  that Mita  has            presented  evidence sufficient  to raise  a genuine  issue of            material fact as to the reasonableness of the quota given the            condition of  the Puerto Rican  copier market.   Weighing the            evidence, assessing the credibility of the experts: these are            task that must be left to the trier of fact.19                                              ____________________            19.  Without making too much  of this, we note that  Casas in            its brief almost concedes that there exist disputed issues of            fact.   After listing  the  evidence it  presented about  the            unreasonableness of the quota, it states: "Among others, this            evidence raises material  questions of fact as  to the effect            of Hurricane Hugo, the recession, the  intrabrand competition            of  MITA  machines,  and   the  manipulation  of  statistical            information by MITA's expert  in order to artificially create            a 'growing market'."  We agree.                                         -49-                                          V.                      In accordance with this opinion, we  hereby dismiss            Caguas  and  Oficentro  from  this suit  and  remand  to  the            district court  to determine whether the  dismissal of Caguas            and Oficentro  should be with  or without prejudice.   Having            determined that the district  court erred in granting Casas's            motion for  partial summary  judgment, we vacate  the court's            order granting  Casas a  permanent injunction.   The parties'            claims will  proceed in the district  court consistently with            this opinion.20                      So ordered.  Each party shall bear its own costs.                      __________   ___________________________________                                            ____________________            20.  We do not reach Mita's remaining argument that,  even if            summary judgment was proper, the district court's issuance of            the permanent injunction was improper.                                         -50-
