
USCA1 Opinion

	




          March 2, 1993     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1196                                 FRANK B. ABBADESSA,                                Plaintiff, Appellant,                                          v.                             MOORE BUSINESS FORMS, INC.,                                 Defendant, Appellee.                                _____________________        No. 92-1197                                 ROBERT D. MARIOTTI,                                Plaintiff, Appellant,                                          v.                             MOORE BUSINESS FORMS, INC.,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                     [Hon. Norman H. Stahl, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                         Higginbotham,* Senior Circuit Judge,                                        ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            James H. Shulte with whom Burns,  Bryant, Hinchey, Cox &  Schulte,            _______________           ________________________________________        P.A. was on brief for appellants.        ____            Edward M.  Kaplan  with  whom William  D. Pa.ndolph  and  Sulloway            _________________             _____________________       ________        Hollis & Soden were on brief for appellee.        ______________                                 ____________________                                    March 2, 1993                                 ____________________        _____________________        *Of the Third Circuit, sitting by designation.                    Higginbotham, Senior Circuit Judge.   This is an appeal                    Higginbotham, Senior Circuit Judge.                                     ____________________          from  an order of summary  judgment in favor  of defendant, Moore          Business Forms, Inc., and  against plaintiffs, Frank B. Abbadessa          and  Robert D. Mariotti.   Abbadessa and Mariotti  sued Moore for          wrongful  termination of  employment.   Moore  moved for  summary          judgment,  arguing that  Abbadessa  and Mariotti  each agreed  in          writing  at the time of  their termination to  release Moore from          any claims arising from  plaintiffs' employment or termination of          employment.  Plaintiffs opposed  the motion for summary judgment,          each  alleging that the agreement to release their claims against          Moore had been signed under economic duress.                    The United  States district  court for the  District of          New  Hampshire,  applying  New  Hampshire  law,  granted  Moore's          summary judgment motion as  to both Abbadessa and Mariotti.   The          court, in separate  orders, found, as a matter  of law, that even          if Abbadessa and Mariotti  had signed their respective agreements          under duress,  each also subsequently ratified  the agreements by          failing to repudiate them promptly and  by accepting the benefits          that flowed under the agreements.                    Because we  agree that Abbadessa  and Mariotti ratified          their respective  resignation  agreements,  we  will  affirm  the          district court's orders of summary judgment in favor of Moore.                                           -3-                                          3          This  is a  diversity action.   Both  Abbadessa and  Mariotti are          citizens  of New Hampshire.  Moore is a Delaware corporation with          its  principal place of business in Illinois.  The district court          had subject matter jurisdiction pursuant to 28 U.S.C.   1332.  We          have appellate jurisdiction pursuant to 28 U.S.C.   1291.                                          I          Frank B. Abbadessa          __________________                    Frank B.  Abbadessa began working as  an accountant for          Moore  Business Forms, Inc. in December 1973.  By 1988, Abbadessa          had advanced to the managerial position of Comptroller of Moore's          Locust  Street plant  in Dover,  New Hampshire.   On  January 19,          1988,  in a  meeting between Abbadessa,  R.J. Barth,  the General          Manager  of  the  Locust  Street plant,  and  Brian  Groves,  the          Director of Human Resources,  Moore requested Abbadessa to resign          and  to  sign a  resignation  agreement.   Under  the resignation          agreement,  Moore  would  provide Abbadessa  with  the  following          benefits   from January 19, until April 30 1988: (1) compensation          in  the  amount  of $4,611.75  per  month;  (2)  payment for  any          vacation owed Abbadessa for  1988; (3) continued participation in          Moore's Healthcare  plan, Dental Plan, and  Group Insurance Plan,          with an option to  extend participation after April 30,  1988, if          Abbadessa made quarterly  payments; and (4) payment  by Moore for                                         -4-                                          4          outplacement counseling services  to assist Abbadessa  in finding          other employment.  The agreement also provided that Abbadessa and          Moore released  each other from  any other claims  or obligations          arising  from Abbadessa'  employment  with,  and termination  by,          Moore.                    Moore  informed Abbadessa  that he  was being  asked to          resign  because  his  performance  had not  been  satisfactory.            Further, Moore  made  clear to  Abbadessa  that he  could  either          resign with  the benefits  provided under  the  agreement or  not          resign  and  face  the possibility  of  being  fired without  any          benefits.    Abbadessa did  not  sign  the resignation  agreement          during the January 19  meeting.  He considered the  agreement for          two  weeks  and,  in  early  February,  he  returned  it  signed,          backdated to January 20.  During the interval between the January          19 meeting and  the time  in early  February when  he signed  the          agreement,  Abbadessa sought  payment  of his  vacation pay  from          Moore.    Moore  apparently  refused to  pay  any  benefits until          Abbadessa  signed  the  resignation   agreement.    According  to          Abbadessa, he finally  signed the agreement  because his lack  of          financial resources left him no other choice.                     On May 27, 1988,  Abbadessa requested that Moore extend          payment of  the benefits provided under the  January 18 agreement          which had expired  on April  30, 1988.   Abbadessa requested  the                                         -5-                                          5          extension because he had  not been able to find  other employment          and  had run out  of money.   Moore agreed to  extend benefits to          Abbadessa for one more month and amended the January 18 agreement          to  reflect that  Abbadessa would  receive the  benefits provided          under the  original agreement  through May  31, 1988.   Abbadessa          signed  the amended agreement and  dated it June  6, 1988. Toward          the  end of June 1988, Abbadessa again requested that Moore grant          him  a further  extension  of his  benefits.     Moore  agreed to          provide Abbadessa  with benefits covering half the month of June.          Finally, in July Abbadessa made one more request for extension of          his benefits.  This time Moore refused.           Robert D. Mariotti          __________________                    Robert Mariotti  began working as a  salesman for Moore          in  December 1970.    By  1988,  Mariotti  had  advanced  to  the          managerial  position  of  Operations Manager  for  Moore's Locust          Street plant.  On  May 24, 1988, in  a meeting between  Mariotti,          Barth  and Groves, Moore requested Mariotti to resign and to sign          a resignation agreement similar to the one presented to Abbadessa          on  January 18, 1988.  The agreement provided similar benefits as          those  paid to  Abbadessa  and covered  the period  of May  24 to          August  31, 1988: (1) compensation in the amount of $5,296.60 per          month; (2) payment for  any vacation owed Mariotti for  1988; (3)                                         -6-                                          6          continued  participation in Moore's Healthcare Plan, Dental Plan,          and  Group Insurance Plan, with an option to extend participation          after August 31,  1988, if Mariotti made  quarterly payments; and          (4)  payment by  Moore  for outplacement  counseling services  to          assist Mariotti in finding other  employment.  The agreement also          provided that  Moore and Mariotti  released each  other from  any          other claims  or obligations arising  from Mariotti's  employment          with, or termination by, Moore.                    As with Abbadessa, Moore  informed Mariotti that he was          being  asked  to  resign because  his  performance  had not  been          satisfactory.   Mariotti was  also presented with  the choice  of          resigning  with  benefits  or  facing the  possibility  of  being          terminated without benefits.   After thinking about the agreement          for  two days,  Mariotti  returned it  signed  on May  26,  1988.          Mariotti  claimed that  he signed  the agreement  under financial          pressure  and that,  being aware  of Abbadessa's  experience with          Moore, he understood that  he would receive no benefits  until he          signed the agreement.          Procedural Background          _____________________                    On September 21, 1988,  Abbadessa and Mariotti wrote to          counsel for Moore  that "they believed  they had been  terminated          without  cause  in  violation  of the  established  policies  and                                         -7-                                          7          procedures  of  Moore and  that they  had  signed the  letters of          resignation under  duress."   On  April  11, 1989  Abbadessa  and          Mariotti  brought  separate  actions  for  breach  of  employment          contract  against  Moore  in  New  Hampshire's  Strafford  County          Superior  Court.    Plaintiffs,  in  their  separate  complaints,          alleged  that  Moore  issued  written  policies,  providing  that          employees  would not be terminated except for cause and then only          after being made aware of  deficiencies in their job  performance          and  given  the  opportunity   to  correct  those   deficiencies.          According to  plaintiffs, these  written policies  constituted an          enforceable employment  contract under  New Hampshire  law, which          Moore breached  by terminating plaintiffs without  just cause and          without giving  plaintiffs the opportunity to  correct what Moore          deemed to be deficiencies in their job performance.                    On May 5, 1989, both actions were removed to the United          States district  court  for  the District  of  New  Hampshire  on          Moore's  petition pursuant to 28 U.S.C.    1441.  On September 9,          1989, Moore moved for summary  judgment as to the claims of  both          Abbadessa and Mariotti.   Moore  argued that  the written  policy          upon  which  Abbadessa and  Mariotti  relied,  which stated  that          employees  would not  be terminated  except for  cause, had  been          replaced by  a subsequent policy issued  during plaintiffs' terms          of employment.   The new  policy did not  provide that  employees                                         -8-                                          8          would  not  be  terminated except  for  cause.    As such,  Moore          maintained,  there  existed  no  enforceable  employment contract          between plaintiffs and Moore.  In any event, Moore continued, the          resignation agreements signed by  Abbadessa and Mariotti released          Moore  from  any  and  all  liability  arising  from  plaintiffs'          employment with, or termination by, Moore.                      Abbadessa and Mariotti opposed the motions for  summary          judgment.  They  argued that  they never received  notice of  the          change of policy.  They also  argued that they never received any          consideration for the new policy, and that New Hampshire law does          not  permit  an employer  to  unilaterally  modify conditions  of          employment to the detriment of an  employee in the absence of new          consideration to the employee.  As to Moore's claim that they had          released any  right to  sue, Abbadessa  and Mariotti  argued that          their respective resignation agreements were invalid because they          had signed the agreements under economic duress.                    On October 25, 1989,  the district court denied Moore's          motion for summary judgment as to Mariotti.  On November 7, 1989,          the  court  denied  Moore's motion  for  summary  judgment as  to          Abbadessa.   The court employed  the same reasoning  to deny both          motions.   According to  the court,  Moore's motions  for summary          judgment  presented  three issues:  (1)  whether Moore's  initial          personnel policy  represented an enforceable contract;  (2) if it                                         -9-                                          9          was  an  enforceable  contract, whether  it  was  amended by  the          subsequent policy; and (3)  whether Abbadessa and Mariotti signed          their respective resignation agreements under duress.  In denying          Moore's  motions, the  court concluded  that all  three questions          involved genuine issues of  material fact which would have  to be          decided at trial.1                    On  August  20,  1991,  Moore renewed  its  motion  for          summary  judgment as to Abbadessa, and the next day, on August 21          1991,  Moore renewed  its  motion  for  summary  judgment  as  to          Mariotti.  This  time, Moore  argued that even  if Abbadessa  and          Mariotti had  signed their  resignation agreements  under duress,          they  had  subsequently ratified  the  agreements  by failing  to          repudiate  promptly and  by  accepting all  benefits that  flowed          under  the  agreements.    Abbadessa and  Mariotti,  in  a  joint          memorandum, raised  three grounds  to defeat Moore's  motions for          summary judgment.   First, plaintiffs argued that the doctrine of          the  "law  of  the  case"  precluded  the   district  court  from          considering Moore's  renewed motions.  Second,  plaintiffs argued          that   Moore  had   not  pleaded   the  affirmative   defense  of                                              ____________________             1The case  of Robert  Mariotti v.  Moore Business  Forms was                           __________________________________________             originally  assigned to  Judge Loughlin,  while the  case of             Abbadessa  v. Moore  Business  Forms was  assigned to  Judge             ____________________________________             Devine.  Subsequent to  the denial of Moore's first  motions             for summary  judgement, both cases were  reassigned to Judge             Stahl's calendar.                                         -10-                                          10          ratification in its answer or in its original motions for summary          judgment and that, pursuant to Rule 8(c) of the Federal  Rules of          Civil Procedure, an  affirmative defense which is  not pleaded is          waived.   Finally, plaintiffs maintained that  there were genuine          issues  of material  fact  as to  whether  they were  capable  of          ratifying the resignation agreements.                      On  January 9, 1992, in  two separate orders, the court          granted Moore's motion for summary  judgment as to Abbadessa  and          Mariotti.  The court  rejected plaintiffs' "law of the  case" and          "waiver   of  unpleaded   affirmative  defense"   arguments,  and          concluded that,  under New  Hampshire law, plaintiffs  had indeed          ratified their respective  resignation agreements and that  Moore          was entitled to summary judgment as a matter of law.                    Abbadessa and  Mariotti now appeal, raising  two of the          grounds  that  were before  the  district  court.   Specifically,          plaintiffs maintain that the "law of the case" doctrine precluded          the district  court  from ruling  on Moore's  renewed motion  for          summary judgment,  and that there were genuine issues of material          fact  as  to whether  plaintiffs  were capable  of  ratifying the          resignation agreements.                                           II                                         -11-                                          11                    Our review  of the district court's  orders for summary          judgment  is  plenary.   United  States  v.  One  Parcel of  Real                                   ________________________________________          Property with Bldgs,  960 F.2d 200, 204 (1st Cir.  1992).  A Rule          ___________________          56 motion for summary  judgment will only be granted if  there is          no genuine  issue as to any material fact and the moving party is          entitled  to  judgment  as a  matter  of  law.  Celotex Corp.  v.                                                          _________________          Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).            _______                    In a diversity action the substantive law  of the forum          state determines  which facts  are material. Anderson  v. Liberty                                                       ____________________          Lobby,  Inc.,  477 U.S.  242, 248  (1986).   Here,  New Hampshire          ____________          substantive  law  will  determine if  plaintiffs  raised  genuine          issues  of  material  fact  as to  whether  they  ratified  their          respective  resignation agreements.   But first,  we turn  to the          question  of  whether  the doctrine  of  the  "law  of the  case"          precluded  the  district court  from  ruling  on Moore's  renewed          motion for summary judgment.                                           A.                    Under the doctrine of the "law of the case", a decision          on  an issue of  law made  by the  court at one  stage of  a case          becomes a binding  precedent to be followed  in successive stages          of the same  litigation except in  unusual circumstances. FCC  v.                                                                    _______          WOKO, Inc.,  329 U.S.  223 (1946);  U.S. v.  Rivera-Martinez, 931          __________                          ________________________                                         -12-                                          12          F.2d 148,  151 (1st Cir. 1991)  Piazza v. Aponte Roque,  909 F.2d                                          ______________________          35, 38 (1st Cir. 1990).  1B J. Moore, Federal  Practice  0.404[1]          (1980).                      Here, the  district court,  in denying  Moore's initial          motions  for summary  judgment, decided  that there  were genuine          issues of material fact as to whether Abbadessa and Mariotti were          under   such  economic  duress  at   the  time  they  signed  the          resignation agreements as to render the agreements  voidable.  In          its renewed motions for summary judgment, Moore argued that, even          if  Abbadessa and Moore signed  the agreements under  the sort of          economic  duress  which  would render  the  agreements  voidable,          Abbadessa and Mariotti had nonetheless ratified the agreements by          their  subsequent conduct.   The issue  of whether  Abbadessa and          Mariotti ratified the agreements is  one which the district court          did  not consider, much less decide, in ruling on Moore's initial          motions for summary judgment.                       We have stated in this circuit that the doctrine of the          "law  of  the  case" "merely  expresses  the  practice  of courts          generally to refuse to  open what has been decided."  Piazza, 909                                                                ______          F.2d at  38.   The issue  raised in  Moore's renewed  motions for          summary  judgment  was  never  decided  by  the  district  court.          Accordingly,  the   district  court   was   not  precluded   from                                         -13-                                          13          considering  whether  Abbadessa   and  Mariotti  ratified   their          respective resignation agreements.                                          B.                    In  New  Hampshire,  contracts  signed  under  economic          duress are voidable. King  Enterprises v. Manchester Water Works,                               ___________________________________________          122  N.H. 1011,  453  A.2d  1276  (1982);  Cheshire  Oil  Co.  v.                                                     ______________________          Springfield  Realty Corp., 118 N.H. 232, 385 A.2d 835 (1978).  In          _________________________          the words of the Supreme Court  of New Hampshire: "the payment of          money  or  the  making   of  a  contract  might  be   under  such          circumstances of business necessity  or compulsion as will render          the  same involuntary and entitle the party so coerced to recover          the  money  paid or  excuse  him from  performing  the contract."          Cheshire Oil Co., 385 A.2d at 838.          ________________                    In order to be  "excused" from performing the contract,          a  party relying on a  theory of business  compulsion or economic          duress must demonstrate four elements.  First,  the party relying          on economic  duress must have involuntarily accepted the terms of          another.   "It must appear  that consent was  actually induced by          the  pressure applied and  would not have  been given otherwise."          Id. at  839, quoting Morrill  v. Bank, 90  N.H. 358, 365,  9 A.2d          ___          _______ ________________          519,  525 (1939).   Second, "the coercive circumstances must have          been the result of the acts of the opposite party."  Cheshire Oil                                                               ____________                                         -14-                                          14          Co.,  385 A.2d  at  839.   Third, "the  pressure  must have  been          ___          wrongful."  Id.   An  act or  threat of  an  act may  be wrongful                      ___          "although the  act or  threat is not  criminal or tortious  or in          violation  of a  contractual duty."  Id.   Fourth, "circumstances                                               ___          must  have permitted no other alternative but to accept the terms          of  another if there is to be  a finding of business compulsion."          Id.  Thus, if the party relying on the theory  of economic duress          ___          "had a legal  remedy adequate  to redress or  compensate for  the          injury threatened, the threat will not amount to duress."  Id.                                                                     ___                    Given the  above definition  of economic  duress, there          are, as  the district  court found, disputed  issues of  material          fact  as  to  whether  Abbadessa and  Moore  satisfied  the  four          elements  of duress.  Specifically,  looking at the  facts in the          light most  favorable to plaintiffs,  it is disputed  whether the          "coercive   circumstances"  surrounding   the   signing  of   the          resignation  agreements  were  "the  result of  acts  of"  Moore.          Abbadessa  and  Mariotti  claim   that  Moore  created  "coercive          circumstances" by refusing to  negotiate any of the terms  of the          agreements and by  withholding benefits plaintiffs were  entitled          to  until  they signed  the agreement.    It is  further disputed          whether  the choice given by  Moore to Abbadessa  and Mariotti of          resigning with benefits or  not resigning and risking termination          without benefits  was "wrongful."   Abbadessa and  Mariotti claim                                         -15-                                          15          that Moore's bargaining position was wrongful because it was done          in  bad faith.    It  is finally  disputed whether  Abbadessa and          Mariotti  were left with "no other alternatives but to accept the          terms" proposed by Moore.  Abbadessa and Mariotti claim that they          were not fully aware of  any internal appeal procedures available          to them at  the time  they were presented  with the requests  for          them  to resign.  They also claim  that they were in no financial          or mental shape to begin court actions.                    Therefore,  assuming for  purposes of  summary judgment          that Abbadessa  and Mariotti signed the  agreements under duress,          the question now becomes whether Moore is nonetheless entitled to          judgment  as  a matter  of  law  because Abbadessa  and  Mariotti          ratified the agreements by their subsequent actions.                    In  New Hampshire,  voidable  contracts are  subject to          ratification. Sawtelle v. Tatone, 105 N.H. 398, 201 A.2d 111, 115                        __________________          (1964).    Since a  contract  executed under  economic  duress is          voidable it is also  subject to ratification.  New  Hampshire has          never  specifically identified  the circumstances  under which  a          contract  executed under  economic duress  will be  considered to          have been ratified.   But generally, a voidable contract  will be          deemed to  have been ratified  when the party who  is entitled to          avoid  the contract "does any act which amounts to a ratification          after full  knowledge of  all the  facts and  circumstances." Id.                                                                        ___                                         -16-                                          16          Acts amounting to ratification  are payment or acceptance  of the          benefits  of the contract  and failure to  repudiate the contract          promptly.  Id. 2     As the  Supreme Court  of New  Hampshire has                     ___          stated:  "A  party cannot treat  the contract  as binding and  as          rescinded at  the same time, and after he has elected to stand by          the contract and receive  the benefits it confers on him, and has          thus ratified  and  confirmed  it, he  cannot  thus  rescind  and          repudiate it." Bechard v. Amey, 82 N.H. 462, 471, 136 A. 370, 375                         _______________          (1926).                    Here, both Abbadessa and Mariotti sought to treat their          resignation  agreements as  "binding  and rescinded  at the  same          time."   Both accepted the  benefits the agreements  conferred on          them and neither attempted  to repudiate the agreements promptly.                                              ____________________             2See also Hillside Assoc. of Hollis, Inc. v. Maine Bonding &              ________ __________________________________________________             Casualty  Co., 135 N.H. 325, 605  A.2d 1026 (1992) (voidable             _____________             insurance contract between insurance agent  and construction             company  based  on  mutual  mistake was  not  ratified  when             insurance company promptly  notified construction company of             mistake); Derouin  v. Granite  State Realty, Inc.,  123 N.H.                       _______________________________________             145,  148,  459 A.2d  231,  233 (1983)  (voidable  land sale             contract  based  on  mutual  mistake  was  ratified  because             purchaser had performed significant improvements to property             and   property  could   not   be  returned   to  seller   in             substantially the same condition in which purchaser received             it);  Michael v. Rochester, 119 N.H. 734, 736, 407 A.2d 819,                   ____________________             821  (1979)  (city ratified  initially  invalid construction             contract  for building a water main when it failed to notify             the  contractor before  construction  was  complete that  it             intended  to repudiate  contract); Lucier v.  Manchester, 80                                                _____________________             N.H.  361, 363,  117  A.  286,  287  (1922)  (acceptance  of             services  of attorney  by city  amounted to  ratification of             invalid employment contract).                                         -17-                                          17          Abbadessa considered  the agreement for two  weeks before signing          it.    After  his  benefits under  the January  19 agreement  had          expired, Abbadessa  requested that  Moore extend him  benefits on          three separate occasions.  Moore acceded to two of these requests          and refused  to extend  added benefits  on Abbadessa's  third and          final  request.    So,  from  February  1988  until  April  1988,          Abbadessa  treated  the agreement  as  binding  by accepting  the          benefits  Moore had promised.   Moreover,  from April  1988 until          June 1988,  Abbadessa further ratified the  original agreement by          making three  separate requests that Moore  extend benefits which          were not  owed under the agreement.  It was not until after Moore          had  refused  additional extensions  of  benefits  that Abbadessa          notified  Moore's  counsel by  letter in  July  1988 that  he had          signed the agreement under duress.  Finally, even after Abbadessa          had filed his  suit against Moore, at no point  did he attempt to          return to Moore the benefits of the agreement which he now claims          he signed under duress.                    Similarly,  Mariotti considered  his agreement  for two          days  before  signing  it.   From  May  1988  until August  1988,          Mariotti continued  to receive the benefits  under the agreement.          Even after  Mariotti supposedly  wrote to  Moore Counsel  in July          1988  that he  had  signed the  agreement  under the  duress,  he          continued to received the benefits under the agreement for August                                         -18-                                          18          1988.   As with Abbadessa,  even after having  filed suit against          Moore, at no  point did Mariotti  attempt to return to  Moore the          benefits of the  agreement which  he now claims  he signed  under          duress.                    The Supreme Court of New  Hampshire has written that "a          person seeking to rescind cannot treat the contract  as rescinded          and binding at  the same time."  Sawtelle, 201 A.2d  at 115.   By                                           ________          accepting the benefits of their respective resignation agreements          and by failing  to notify  Moore promptly that  they intended  to          repudiate  the agreements,  Abbadessa  and  Mariotti treated  the          agreements as  binding.  After having  done so, they  now wish to          treat the  agreements as  rescinded.   That, under  New Hampshire          law, they may not do.                    Abbadessa and  Mariotti argue that they  could not have          possibly  ratified  the agreements  until  after  the duress  was          removed.  Since, according to Abbadessa and Mariotti, they signed          the agreements under duress because basically, by  asking them to          resign, Moore caused them to  be in desperate need for money,  we          understand plaintiffs'  argument to  mean that duress  would have          been  removed when  they were  no longer  in such  dire financial          straits.  But, as we stated  at the outset of our discussion, the          issue in this case is whether appellants raised genuine issues of          material  fact  as  to  whether they  ratified  their  respective                                         -19-                                          19          agreements.   Stated  another  way: whether  they raised  genuine          issues  of material  fact that  the claimed  duress had  not been          removed  between the time they signed the agreements and the time          they  brought this action.   Appellants have failed  to raise any          facts  to that effect.  While Moore has advanced undisputed facts          that  appellants  accepted  the  benefits  of   their  respective          agreements,  Abbadessa   and  Mariotti  have   offered  no  facts          (disputed  or  undisputed) about  how  long  the economic  duress          lasted;  or put  another way,  if and  when their  claimed duress          ceased.3  Having  failed to satisfy  their burden of  production,                                              ____________________             3We  should also point out  that we have  found no authority             that New  Hampshire has  adopted or  would adopt  the theory             that a contract signed under  economic duress is capable  of             being  ratified only after the duress is removed.   The only             case from  this circuit addressing  the issue is  Ismert and                                                               __________             Associates, Inc.  v. New England Mutual  Life Insurance Co.,             ___________________________________________________________             801 F.2d  536 (1st Cir. 1986).   In that case,  this circuit             considered  an action  brought by  a tax  consulting service             firm against an insurance company.  The firm argued that the             agreement  it had  signed, releasing  the  insurance company             from any claims  resulting from the firm's  loss of business             opportunities, was  unenforceable  because it  was  obtained             under duress.  Judge Maletz authored the majority opinion as             well as a dissent.  In  his dissent on the issue of economic             duress, Judge Maletz wrote that  "there can be no affirmance             [of a contract]  unless the  duress has  ended." Ismert  and                                                              ___________             Associates, 801 F.2d at 548.  Judge  Breyer, writing for the             __________             majority  on the  question of  duress,  did not  address the             issue  of  whether a  contract  signed under  duress  is not             capable  of  being  ratified  until the  duress  has  ended.             Instead,  Judge Breyer found  that plaintiff had  not made a             sufficient  showing  that it  signed  the release  agreement             under  duress. Id..   In  Ismert, this circuit  was applying                            ___        ______             Massachusetts law.  Thus, the decision is not controlling in             this  case  involving  New  Hampshire law.    Moreover,  the                                         -20-                                          20          their argument necessarily fails.  See,  e.g., Mesnick v. General                                             ___   ____  __________________          Elec. Co.,  950 F.2d 816, 822 (1st  Cir. 1991) (where opponent of          _________          summary judgment motion  "bears the ultimate burden  of proof, he          must present definite, competent evidence" sufficient to document          a factual disagreement over some issue of material fact).                    For the  foregoing reasons, we will  affirm the summary          judgment  orders of the district court in favor of Moore Business          Forms,  Inc.,  and  against  Frank  B.  Abbadessa and  Robert  D.          Mariotti.          Affirmed.             ________                                                         ____________________             statement of  Judge Maletz that "there can  be no affirmance             unless duress  has ended", cannot even be used as persuasive             authority in  this case given that  it was not adopted  by a             majority of the panel.                                         -21-                                          21
