
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1197                                CME, ASSOCIATES, INC.,                           AS IT IS THE GENERAL PARTNER OF                                   CME GROUP, LTD.,                                 Plaintiff, Appellee,                                          v.                     JOSEPH D. FORD AND SHIRLEY ANN FORD, ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Nancy J. Gertner, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                                Boudin, Circuit Judge,                                        _____________                             and Ponsor,* District Judge.                                          ______________                                 ____________________            Alan  R. Hoffman with  whom John  R. Cavanaugh  and Lynch, Brewer,            ________________            __________________      ______________        Hoffman & Sands, LLP were on brief for appellants.        ____________________            Judith Gail  Dein with whom James  J. Arguin,  Warner & Stackpole,            _________________           ________________   ___________________        LLP and Christopher Nolland were on brief for appellee.        ___     ___________________                                 ____________________                                   October 17, 1996                                 ____________________        ____________________        * Of the District of Massachusetts, sitting by designation.                 Per  Curiam.  This is an  action on a promissory note by                 ___________            CME Associates against the Fords, two of whom were co-signers            of  the note.   The  district court  granted partial  summary            judgment  in favor  of  CME, establishing  the senior  Fords'            liability on the note.  A number of other issues remain to be            resolved, but the court  entered a separate judgment pursuant            to Fed. R. Civ. P. 54(b).                 The  Fords' primary defense  to the note  was an alleged            oral  modification  of the  terms of  the  note by  the prior            holder, the FDIC.   The district court rejected  this defense            on the ground that the note's current owner, CME, is a holder            in  due course  protected by  Massachusetts law  against such            modifications absent notice.   See Mass.  Gen. Laws ch.  106,                                           ___              3-305(2)(e).   We are satisfied from a review of the record            that  CME did not have notice and that there was insufficient            evidence to the contrary to warrant a trial on this question.                 The  Fords also  argued that  CME's foreclosure  sale of            real  property   securing  the   note  was  conducted   in  a            commercially  unreasonable fashion.   E.g.,  RTC v.  Carr, 13                                                  ____   ___     ____            F.3d 425 (1st Cir. 1993).  In effect, the Fords said that the            sale  was  conducted  in  a  negligent  manner.    But  their            affidavit to this effect did not even purport to show that it            was made by someone  with knowledge of the facts  as required            by Fed. R. Civ. P. 56(e).     The  Fords  say that  more time            should have been allowed for discovery concerning the conduct                                         -2-                                         -2-            of the sale, but this is a matter largely  within the purview            of  the district court,  Ayala-Gerena v. Bristol Myers-Squibb                                     ____________    ____________________            Co., 95 F.3d 86, 91 (1st Cir. 1996), and we perceive no abuse            ___            of discretion.   Moreover, the record  does not reflect  that            the  Fords made  anything  approaching  an  adequate  showing            before  the  district  court  to justify  invocation  of  the            "escape hatch" under  Fed. R. Civ. P. 56(f).  Paterson-Leitch                                                          _______________            Company,  Inc. v. Massachusetts  Municipal Wholesale Electric            ______________    ___________________________________________            Company, 840 F.2d 985, 988-989 (1st Cir. 1988).            _______                 No other issues argued by the Fords in this case require            further comment.   It would be helpful in the  future for the            district  court to  be  more explicit  in  setting forth  its            express determination that there is no just reason for  delay            as required by Fed. R. Civ. P. 54(b).                 Affirmed.                 ________                                         -3-                                         -3-
