          United States Court of Appeals
                        For the First Circuit


No. 17-1984

                        IN RE: STEVEN FUSTOLO,
                                Debtor.
                         _____________________

                           STEVEN FUSTOLO,

                              Appellant,

                                  v.

                        THE PATRIOT GROUP LLC,

                              Appellee.


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

              [Hon. Leo T. Sorokin, U.S. District Judge]


                                Before

                  Torruella, Thompson, and Kayatta,
                           Circuit Judges.


     Martin P. Desmery, with whom Travis J. McDermott and Partridge
Snow & Hahn, LLP were on brief, for appellant.
     Jack I. Siegal, with whom Gordon & Rees Scully Mansukhani was
on brief, for appellee.



                            July 16, 2018
                TORRUELLA,    Circuit     Judge.        Following    trial    on    The

Patriot Group, LLC's ("Patriot") adversary complaint requesting

denial     of    the    discharge    in    bankruptcy      of    Steven     Fustolo's

("Fustolo") debt, the bankruptcy court allowed Patriot's motion to

amend its pleadings and denied Fustolo's discharge pursuant to the

newly added claim.           Fustolo seeks reprieve from his encumbrance,

imploring us to reverse the bankruptcy court's judgment and remand

the case for reconsideration in light of the issues pleaded in

Patriot's complaint.          Because we find that the allowance of this

belated amendment fails to satisfy the prescripts of due process

underlying Rule 15(b)(2) and was therefore an abuse of discretion,

we grant Fustolo's request.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

                We   begin   by   charting      the   course    of   this   case,   as

supportably summarized by the district court and undisputed by the

parties.        See Fustolo v. The Patriot Group, LLC (In re Fustolo),

No. 17-cv-10128-LTS, 2017 WL 3896667, at *1-5 (D. Mass. Sept. 6,

2017).     After obtaining a $20.5 million dollar judgment against

Fustolo from the Massachusetts Superior Court two years earlier,

Patriot and two other petitioning creditors filed a contested

involuntary petition for relief under Chapter 7 of the Bankruptcy

Code in May 2013 against Fustolo.                     On December 16, 2013, the

bankruptcy court allowed the petition for relief.                    In re Fustolo,


                                          -2-
503 B.R. 206 (Bankr. D. Mass. 2013), aff'd, Fustolo v. 50 Thomas

Patton Drive, LLC, 816 F.3d 1 (1st Cir. 2016).

            On September 30, 2014, Patriot and another petitioning

creditor    filed       an   adversary        complaint       requesting         denial    of

Fustolo's        discharge     in        bankruptcy        pursuant       to     11     U.S.C.

§ 727(a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and, in the

alternative,       that      the      court       declare     Fustolo's          debt    non-

dischargeable pursuant to 11 U.S.C. § 523(a)(2), (a)(4).                                 Among

other   things,      the     complaint       alleged       that   Fustolo        engaged   in

fraudulent transactions as to both creditors; deliberately created

a corporate web to conceal fraudulent activities; made substantial

pre-petition       transfers        to      his    wife;    made        unexplained       cash

transactions within one year of the involuntary petition; made

substantial       transfers      to      insiders     and    affiliates;         concealed,

destroyed, or failed to keep business records from which the

creditors could ascertain the financial condition of Fustolo's

business     transactions;            and     made     false       statements           during

bankruptcy.

            In November 2015, Patriot filed a motion to compel

Fustolo to provide emails and financial records that Patriot

alleged were being wrongfully withheld.                      In a contested hearing

on Patriot's motion, Fustolo argued that his emails had been

deleted     by    his    email      account        provider       and     were    therefore


                                             -3-
irretrievable, and that, in any event, many of them were protected

from production by the Fifth Amendment's right against self-

incrimination.1

           On December 31, 2015, the bankruptcy court issued an

order (the "December 31 Order") for Fustolo to produce non-

privileged emails and financial account statements to Patriot, and

in consideration of Fustolo's Fifth Amendment rights, to "provide

the Court for its in camera inspection only . . . copies of all

emails and documents he asserts are protected under the Fifth

Amendment, along with two separate item by item indexes" (the

"Protocol").   The bankruptcy court stated that it would determine

whether the privilege had been properly invoked, and added that

submission of the emails and financial statements "shall not

constitute a waiver of [Fustolo's] Constitutional right against

self-incrimination."       In the court's accompanying memorandum, it

noted   that   Fustolo's    contention   about   the   email   provider's

deletion of emails was "devoid of merit," and that if Fustolo was

"unable to produce emails, it can only mean that he deleted them."

50 Patton Drive, LLC v. Fustolo (In re Fustolo), No. 13-12692-JNF,

2015 WL 9595421, at *4 (Bankr. D. Mass. Dec. 31, 2015).



1  In 2015, Patriot initiated an investigation of Fustolo, which
led the Massachusetts Attorney General to file a criminal matter
against Fustolo in the Massachusetts state court.


                                   -4-
            After being granted two extensions of time to comply

with the December 31 Order, on February 5, 2016, Fustolo filed a

motion to impound submission regarding his assertion of the Fifth

Amendment, in which he stated that he was not complying with the

December    31    Order   by   refusing    to   submit   emails.     Patriot

subsequently filed a motion for sanctions against Fustolo pursuant

to Fed. R. Civ. P. 37 for failing to comply with the December 31

Order and for alleged email spoliation.          The bankruptcy court held

a hearing on Patriot's motion on March 17, 2016,2 at which Patriot

requested    as    sanctions:    that     the   bankruptcy   court   set   an

expeditious trial date; that Fustolo be required to submit to a

deposition; and an order that Patriot was "not going to get dumped

on with emails on the eve of trial."            In response, Fustolo again

responded that production of emails and documents for in camera

inspection would violate his Fifth Amendment rights in light of

the "overriding concern that [the bankruptcy court] is the finder

of fact in this case."         The court made clear at the hearing that

it had "gone to great lengths to protect Mr. Fustolo's right to

invoke the Fifth Amendment," but that Fustolo had "refused to

comply . . . without legitimate reason."            In addition, the court


2  While the transcript of this hearing and Patriot's appellate
brief reflect the date of this hearing as March 17, 2015, Patriot's
motion for sanctions was filed on February 16, 2016, and the docket
reflects the hearing took place on March 17, 2016.


                                     -5-
found that Fustolo failed to comply with the December 31 Order by

deleting emails that he had not claimed to be privileged or

refusing to provide them to Patriot, and by failing to comply with

the Protocol.      See id.   Accordingly, the court granted Patriot's

motion   for   sanctions,    prohibited   Fustolo      from    presenting   any

emails not previously produced, and scheduled the trial to commence

on May 23, 2016.

           During his deposition, Fustolo provided to Patriot paper

print outs of what he claimed were his "books and records," but

refused to produce the electronic spreadsheets from which the

information was derived, repeatedly invoking the Fifth Amendment

right against self-incrimination.          Fustolo further invoked his

Fifth Amendment right when asked if he intentionally deleted his

electronic spreadsheets.      On May 10, 2016, Patriot again moved for

sanctions pursuant to Fed. R. Civ. P. 37, seeking a pretrial ruling

that Fustolo had spoliated the electronic financial records, and

a court order barring Fustolo from introducing into evidence any

documents or financial records not produced in their original

electronic format.     On May 18, 2016, the bankruptcy court granted

Patriot's motion in part and denied it in part, prohibiting Fustolo

from introducing any evidence not provided prior to his deposition,

but   refraining    from   making   a   finding   as   to     whether   Fustolo

intentionally spoliated his books and records.


                                    -6-
            In a Joint Pretrial Memorandum ("JPM"), Patriot included

"Fustolo's discovery misconduct in this proceeding, including but

not limited to Fustolo's spoliation of evidence" among its "fact

issues for trial."            Fustolo did not file an objection to the

inclusion of this issue.             Three days before trial, Patriot filed

a request for the bankruptcy court to take judicial notice of

several documents, including: 1) the December 31 Order; 2) the

December 31 accompanying memorandum; 3) the transcript of the

March 17, 2016 hearing; 4) the court's May 18, 2016 order on

Patriot's motion for a spoliation inference.                     The court allowed

the request with no objection from Fustolo.

            Trial started on May 23, 2016.                     The court began by

reciting the allegations in the complaint: that Patriot had an

objection    to    discharge         of   Fustolo's      debt       under   11    U.S.C.

§ 727(a)(2)(A)         as    Count   I,   §     727    (a)(2)(B)       as   Count      II,

§ 727 (a)(3)      as    Count    III,     §   727     (a)(4)    as    Count      IV,   and

§ 727 (a)(5) as Count V; and that Patriot further alleged that

Fustolo's   debt       was   non-dischargeable         under    §    523(a)(2)(A)      as

Count VIII.3      The parties confirmed that there were no amendments.

In Patriot's opening statement, Patriot's counsel offered that the

evidence would "show that Mr. Fustolo ha[d] repeatedly abused the


3  Counts VI and VII related to claims by another creditor that
previously dismissed its claims against Fustolo.


                                          -7-
bankruptcy process, violated this Court's orders, [and] failed to

preserve   evidence."      The   bankruptcy   court   immediately   asked

whether Patriot had a claim under § 727(a)(6), and counsel stated

that Patriot did not.

           On June 14, 2016, the fourth of six days of trial, during

Fustolo's testimony, Patriot's counsel questioned him about his

compliance with the December 31 Order.          The following exchange

took place:

       COUNSEL:         In December of 2015 the Court entered an
                        order in which you were to provide the
                        Court in camera documents that you
                        contend you were withholding based on the
                        Fifth Amendment privilege.       Do you
                        recall that?

       FUSTOLO:         I do, yes.

       COUNSEL:         You never produced those documents to the
                        Court, did you?

       FUSTOLO:         My attorney supplied them to the Court,
                        yes.

       COUNSEL:         I don't believe that you followed – there
                        was a protocol that you were supposed to
                        follow in terms of providing documents
                        withheld on Fifth Amendment grounds, as
                        well as a log of documents. Sir, do you
                        know whether you complied with that
                        order?

       FUSTOLO:         Sir, I relied on my counsel who believed
                        that – that compliance had been adhered
                        to.

                                     . . .



                                     -8-
          COUNSEL:       Are you telling the Court right now under
                         oath that you supplied all the documents
                         withheld on the Fifth Amendment privilege
                         to the Court?

          FUSTOLO:       Sir, I relied on my counsel for that, so
                         whatever they said we complied with, we
                         complied with.

At no point did Fustolo's trial counsel object to any of these

questions.      Moreover,    Fustolo's       counsel    did    not     address   the

December 31 Order during his cross-examination of Fustolo.                   At the

close of evidence, the bankruptcy court requested that the parties

submit post-trial briefs in lieu of closing arguments, structuring

their briefs "along the lines of the claims for relief that are

set forth in the counts on the plaintiff's complaint."                   The court

again read aloud the counts in Patriot's complaint, and gave the

parties    approximately    two     months    to    submit     their     post-trial

briefs.

             Both parties filed their post-trial briefs on August 26,

2016.     In the last pages of Patriot's brief, it moved to amend its

complaint to conform to the evidence presented at trial pursuant

to Fed. R. Civ. P. 15(b)(2), requesting to include a claim under

§ 727(a)(6) based on Fustolo's violation of the December 31 Order.

Patriot     identified    several    instances      that      it   argued   should

constitute Fustolo's implied consent to litigate the additional

claim,     including   Fustolo's     failure       to   object     to:   Patriot's

inclusion of "Fustolo's discovery misconduct" as an issue for trial

                                      -9-
in the JPM; Patriot's request for judicial notice of the December

31 Order; and Fustolo's above-quoted testimony at trial.             Patriot

subsequently filed a Motion to Conform the Pleadings to the

Evidence on September 12, 2016, and Fustolo filed his opposition

on September 28.

            On   January    9,   2017,   the    bankruptcy   court   allowed

Patriot's motion to conform and entered judgment in its favor and

against Fustolo, denying Fustolo a discharge of his debt owed in

bankruptcy under § 727(a)(6).        The Patriot Group, LLC v. Fustolo

(In re Fustolo), 563 B.R. 85 (Bankr. D. Mass. 2017).           In light of

its ruling as to the newly asserted claim, the bankruptcy court

found the remaining counts of Patriot's complaint moot.              Id. at

113.

            On January 24, 2017, Fustolo filed his Notice of Appeal

and Statement of Election to have his appeal of the bankruptcy

court's January 9 order heard before the district court rather

than the Bankruptcy Appellate Panel.           The district court affirmed

the bankruptcy court on September 6, 2017, and Fustolo timely

appealed.

                           II. THE UNPLEADED CLAIM

            On appeal, Fustolo advances two arguments before this

Court: that the bankruptcy court abused its discretion in granting

Patriot leave to amend its complaint, and that § 727(a)(6) does


                                    -10-
not apply to his assertion of his Fifth Amendment right against

self-incrimination.              The decision whether to grant or deny an

amendment is within the discretion of the trial court, see Foman

v.     Davis,    371      U.S.    178,     182    (1962),        and   we    review    its

determinations of implied consent for an abuse of that discretion,

Premier Capital, LLC v. Crawford (In re Crawford), 841 F.3d 1, 6

(1st    Cir.    2016).       This    standard      is   "generally          deferential,"

although a "material error of law is invariably an abuse of

discretion."         Charbono v. Sumski (In re Charbono), 790 F.3d 80,

85 (1st Cir. 2015) (citing Berliner v. Pappalardo (In re Sullivan),

674 F.3d 65, 68 (1st Cir. 2012)).

               "Notwithstanding the fact that we are the second-in-time

reviewers, we cede no special deference to the district court's

determinations."          In re Crawford, 841 F.3d at 6 (quoting Gannett

v.   Carp      (In   re    Carp),    340    F.3d    15,     22    (1st      Cir.   2003)).

Accordingly, we directly review the bankruptcy court's order.                          In

re Charbono, 790 F.3d at 84-85.

               When engaging in our review, we keep in mind that "the

district courts retain the inherent power to do what is necessary

and proper to conduct judicial business in a satisfactory manner."

Rodríguez v. Doral Mortg. Corp., 57 F.3d 1168, 1171 (1st Cir. 1995)

(quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1119 (1st Cir.

1989)).     Further, while motions to amend a complaint to conform


                                           -11-
to the evidence at trial are liberally allowed, Noonan v. Rauh (In

re Rauh), 119 F.3d 46, 52 (1st Cir. 1997), such amendments must

conform to the prescripts of due process, see Nelson v. Adams USA,

Inc., 529 U.S. 460, 465 (2000).

          We    begin   with   a    discussion     of   the   applicable   rule

governing amendments of pleadings.

A. Rule 15(b)(2)4

          Rule 15(b)(2) states, in relevant part, that "[w]hen an

issue not raised by the pleadings is tried by the parties' express

or implied consent, it must be treated in all respects as if raised

in the pleadings."      See Antilles Cement Corp. v. Fortuño, 670 F.3d

310, 319 (1st Cir. 2012) ("Federal Rule of Civil Procedure 15(b)

allows an unpleaded claim to be considered when the parties'

conduct demonstrates their express or implied consent to litigate

the claim.").    As the record in this case shows no indication of

Fustolo's express consent, nor do any parties so claim, we look

only to whether Fustolo provided his implied consent.

          Implied    consent       occurs    by   either   "treating   a   claim

introduced outside the complaint 'as having been pleaded, either

through [the party's] effective engagement of the claim or through



4  Federal Rule of Civil Procedure 15(b) is made applicable in
bankruptcy proceedings pursuant to Bankruptcy Rule 7015. See In
re Rauh, 119 F.2d at 52.


                                      -12-
his silent acquiescence'; or by acquiescing during trial 'in the

introduction of evidence which is relevant only to that issue.'"

Id. (alteration in the original) (emphasis added) (quoting Doral

Mortg., 57 F.3d at 1172); see also Conjugal P'ship of Jones v.

Conjugal P'Ship of Pineda, 22 F.3d 391, 400-01 (1st Cir. 1994)

("One sign of implied consent is that issues not raised by the

pleadings are presented and argued without proper objection by

opposing counsel." (quoting Matter of Prescott, 805 F.2d 719, 725

(7th Cir. 1986))).

             Engagement    or   acquiescence   to   the    litigation   of   an

unpleaded claim may occur through a party's failure to object once

it becomes clear that the asserted claim is being incorporated

into the pleadings.       See, e.g., Antilles Cement, 670 F.3d at 319-20

(finding that appellants "effectively conceded" that new claim had

been "incorporated into the complaint" by discussing the claim at

the first scheduling conference, failing to object to the claim's

listing in the scheduling order, engaging in discovery pertaining

to the new claim, briefing the issue, and arguing contesting the

claims merits).     However, "[t]he introduction of evidence directly

relevant to a pleaded issue cannot be the basis for a founded claim

that the opposing party should have realized that a new issue was

infiltrating the case."         DCPB, Inc. v. City of Lebanon, 957 F.2d

913,   917   (1st   Cir.    1992),   superseded     on    other   grounds,   as


                                     -13-
recognized in Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 243 n.25

(1st Cir. 2010).    It is "the defendant's inalienable right to know

in advance the nature of the cause of action being asserted against

him," Doral Mortg., 57 F.3d at 1171, and thus "[i]t is not enough

that an issue may be inferentially suggested by incidental evidence

in the record; the record must demonstrate that the parties

understood that the evidence was aimed at an unpleaded issue,"

Galindo v. Stoody Co., 793 F.2d 1502, 1513 (9th Cir. 1986);

see also Kenda Corp., Inc. v. Pot O'Gold Money Leagues, Inc.,

329 F.3d   216,   232   (1st   Cir.    2003)    (citing   Galindo   for   this

proposition); Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th

Cir. 1969) (stating that Rule 15(b) serves "to bring the pleadings

in line with issues actually tried and does not permit amendment

to include collateral issues which may find incidental support in

the record").

           Finally, while the court has the discretion to allow

late amendments, it may do so only if the non-moving party will

not suffer undue prejudice.       Campana v. Eller, 755 F.2d 212, 215

(1st Cir. 1985); see also In re Rauh, 119 F.3d at 52 (amendment

should not be allowed if opposing party demonstrates "unfair

prejudice" (citing DCPB, 957 F.2d at 917)); DCPB, 957 F.2d at 917

("It is axiomatic that amendments which unfairly prejudice a

litigant should not be granted.").             "At a bare minimum . . . a


                                      -14-
defendant must be afforded both adequate notice of any claims

asserted against him and a meaningful opportunity to mount a

defense."    Doral Mortg., 57 F.3d at 1172.    Lack of prejudice,

however, does not "compel a determination that the amendment is

appropriate."   Kenda Corp., 329 F.3d at 232 (quoting United States

v. Davis, 261 F.3d 1, 59 (1st Cir. 2001)).

B. The January 9, 2017 Order

            We refocus our lens on the plaint before us.   Amongst

the claims that Patriot pleaded in its complaint were requests for

denial of discharge of Fustolo's debt under 11 U.S.C. § 727(a)(3),

which allows for a denial when a debtor has "concealed, destroyed,

mutilated, falsified, or failed to keep or preserve any recorded

information, including books, documents, records, and papers, from

which the debtor's financial condition or business transactions

might be ascertained," and 11 U.S.C. § 727(a)(4), which allows for

denial if a debtor has "knowingly and fraudulently, in or in

connection with the case . . . made a false oath or account."   In

its motion to conform, Patriot requested that the bankruptcy court

allow it to assert a claim and obtain a judgment against Fustolo

under 11 U.S.C. § 727(a)(6), which provides for denial of discharge

of a "debtor [that] has refused, in the case . . . to obey any

lawful order of the court, other than to respond to a material

question or to testify."


                               -15-
           As    previously        noted,   the         bankruptcy     court   allowed

Patriot's request for amendment and judgment on the unpleaded

claim, finding that Fustolo had been put on notice of a possible

§ 727(a)(6) claim prior to trial, and that the unpleaded claim was

foreseeable as early as March 17, 2016.                   In re Fustolo, 563 B.R.

at 106-08.      The court reasoned that Fustolo "impliedly consented

to the litigation of the unpleaded § 727(a)(6)(A) claim" by filing

the JPM, and "through his silent acquiescence and failure to object

to the introduction of evidence directly relevant to that claim."

Id. at 106, 108.        According to the court, Fustolo's acceptance

occurred through: 1) the inclusion of the "discovery misconduct"

issue in the JPM; 2) his failure to object to the court taking

judicial   notice      of    the   December        31    Order   and    accompanying

memorandum, and the transcript of the March 17, 2016 hearing; and,

3) his acquiescence to Patriot's line of questioning about the

December 31 Order.           Id. at 108.            The court also found the

introduction      of   the     December       31        Order,   the    accompanying

memorandum, the March 17, 2016 hearing transcript, and Patriot's

questioning of Fustolo were all "more strongly relevant" to a

§ 727(a)(6)(A) claim than alternative explanations offered by

Fustolo.     Id. (citing Haught v. Maceluch, 681 F.2d 291, 305 (5th

Cir. 1982)).




                                       -16-
             Further,   while    acknowledging     the    belated   timing      of

Patriot's motion to conform, the bankruptcy court pointed out that

Patriot raised the issue in its post-trial brief, and that Rule

15(b)(2) allows for amendments to pleadings "at any time, even

after judgment."       Id. at 108-09 (quoting Fed. R. Civ. P. 15(b)(2))

(quotation marks omitted).          The court next found that Fustolo

would not suffer any undue prejudice as he "had a full and fair

opportunity to address his compliance with the December 31st Order

at trial," and because the court could not imagine "what additional

evidence Fustolo could offer" as to this claim.                   Id. at 109.

Finally, after conducting an analysis under § 727(a)(6), the

bankruptcy    court     concluded    that   Patriot      had   "show[n]    by    a

preponderance     of    the     evidence    that   Fustolo     willfully        and

intentionally refused to obey a lawful order of this Court," which

warranted denial of his discharge.          Id. at 113.

             In this appeal, Fustolo disputes the contention that he

was put on notice about a potential § 727(a)(6) claim, and argues

that the pre-trial filings, Patriot's request for judicial notice,

and his testimony all related to the existing § 727(a)(3) or

§ 727(a)(4) claims and ongoing discovery disputes.              He avers that

these pieces of evidence at most constituted "incidental evidence,

which created nothing more than an inferential suggestion of a

possible § 727(a)(6) claim."         Fustolo faults the bankruptcy court


                                     -17-
for utilizing the "most strongly relevant" test to find implied

consent, and employing a "double standard" by imputing Fustolo's

notice of a potential § 727(a)(6) claim in March 2016 while failing

to require Patriot to justify its delayed amendment until September

2016.   Patriot's delay, he claims, was unfairly prejudicial as it

precluded him the opportunity to consider the need for additional

evidence.

            Patriot, on the other hand, maintains the accuracy of

the bankruptcy court's discretionary decision, asserting that

evidence of Fustolo's Protocol violation was relevant only to the

unpleaded claim.     Therefore, says Patriot, because Fustolo was on

fair notice of the possible new claim and engaged on the merits at

trial without objection, he impliedly consented to its addition.

Patriot also contests any alleged prejudice to Fustolo as it posits

that he had the opportunity to address the § 727(a)(6) claims, but

simply failed to do so.       As for why it waited until after trial

to   request   amendment,    Patriot   points   to    discovery    and   trial

preparation, and its desire to prevent Fustolo from seeking further

postponement.

C. Fair Notice

            "Under   the    Civil   Rules,   notice    of   a   claim    is   a

defendant's entitlement, not a defendant's burden."             Doral Mortg.,

57 F.3d at 1172.     When evidence presented is relevant to a claim


                                    -18-
actually pleaded, and not solely to a new issue, the non-moving

party is not provided adequate notice that the new claim is being

litigated.     See DCPB, 957 F.2d at 917.         Simply put, one cannot

give implied consent to litigate a claim for which he or she is

not provided notice.        See Nickless v. Conley (In re Byers), 312

B.R. 22, 25 (Bankr. D. Mass. 2004) ("The bounds of implied consent

ensure that an opposing party receives fair notice of the claims

against   it   which   it   must   defend.");   see   also   Triad   Elec.   &

Controls, Inc. v. Power Sys. Eng'g, Inc., 117 F.3d 180, 193-94

(5th Cir. 1997) ("[T]rial of unpleaded issues by implied consent

is not lightly to be inferred under Rule 15(b) . . . in light of

the notice demands of procedural due process." (quoting Jiménez v.

Tuna Vessel "GRANADA", 652 F.2d 415, 422 (5th Cir. Unit A July

1981)) (quotation marks omitted)).

             The bankruptcy court found that Fustolo was put on notice

of the infiltration of a § 727(a)(6)(A) claim in the JPM, through

the court's allowance of the judicial notice request, during

Patriot's opening statement, and when Patriot questioned him at

trial.    We disagree, and find that none of these instances clearly

indicated Patriot's intention to litigate a § 727(a)(6) claim such

that Fustolo could have "understood that the evidence was aimed at

an unpleaded issue."        Galindo, 793 F.2d at 1513; see also Doral

Mortg., 57 F.3d at 1172.       We explain our reasoning.


                                     -19-
       1. The JPM

             The bankruptcy court found that including "discovery

misconduct" as a factual issue for trial in the JPM "was a clear

warning to Fustolo" that his failure to comply with the December

31 Order would be a triable issue.         Fustolo, 563 B.R. at 107.

But,   the    discovery   misconduct   alleged      in   the    JPM    included

spoliation of evidence, relevant to and actionable under Patriot's

§ 727(a)(3) claim.        Assuming "discovery misconduct" refers to

Fustolo's refusal to provide Patriot non-privileged documents

required by the December 31 Order, that contention was addressed

at the March 17, 2016 hearing on Patriot's motion for sanctions,

during which the bankruptcy court found it "inescapable that they

have   not   been   produced   intentionally   or    have      been   deleted."

Moreover, Patriot argued in its second Rule 37 motion -- filed

only nine days prior to filing the JPM -- that Fustolo's invocation

of the Fifth Amendment when asked to produce financial documents

referenced in the December 31 Order should lead to an inference of

spoliation.     Thus, this "discovery misconduct" was relevant to

whether Fustolo concealed, destroyed, or failed to preserve books

and records under Patriot's existing § 727(a)(3) claim, and,

because it was not solely relevant to the § 727(a)(6) claim, was

insufficient for a finding of implied consent.




                                   -20-
          Patriot points to Fustolo's violation of the Protocol as

an independent act of "discovery misconduct" at issue for which

Fustolo was provided notice through the JPM.       Apart from his

refusal to turn over non-privileged documents, this violation

involved Fustolo's failure to provide the court with emails and

financial records that he asserted were shielded from production

by the Fifth Amendment in order for the court to conduct an in

camera inspection.   Yet, this too cannot amount to adequate notice

as this transgression also related to Patriot's § 727(a)(3) claim.

At the March 17 hearing, the bankruptcy court announced its belief

that Fustolo's defiance and "changes of position" as to why he was

not providing emails were in "furtherance of a scheme to delay

this litigation and legitimate discovery," and not as a result of

the reasons that Fustolo previously stated to court.   In its post-

trial proposed findings of fact and conclusions of law, Patriot

pointed to Fustolo's invocation of the Fifth Amendment privilege

in relation to its § 727(a)(3) claim, and further argued that

Fustolo's contrary representations about the emails supported an

inference that he destroyed them.     Additionally, the documents

which Patriot alleges that Fustolo failed to provide to the

bankruptcy court through his Protocol violation were the same

documents that Patriot alleged were destroyed in its subsection

(a)(3) claim.


                               -21-
           At the very least, the statements in the JPM were

sufficiently broad as to not reasonably be perceived as germane

exclusively to a new § 727(a)(6) claim rather than a pleaded issue.

      2. Request for Judicial Notice

           Nor did Patriot's request for the court to take judicial

notice of certain court documents provide adequate notice of the

inclusion of a § 727(a)(6) claim.              The bankruptcy court focused

on Patriot's request for judicial notice of the December 31 Order

and accompanying memorandum, and the transcript of the March 17,

2016 hearing, finding that they were "more strongly relevant to a

§ 727(a)(6)(A) claim than the theory espoused by Fustolo."                  Id.

at 108.    In the bankruptcy court's memorandum accompanying the

December 31 Order, the court exclaimed its disbelief of Fustolo's

contentions that his email provider deleted his emails, and laid

out the underpinnings of a spoliation inference when it stated

that "[i]f he is unable to produce emails, it can only mean that

he   deleted   them."    This,    as    well    as   the   bankruptcy    court's

previously-mentioned "inescapable" conclusion at the March 17,

2016 hearing that Fustolo intentionally withheld or deleted emails

are undoubtedly pertinent to Patriot's § 727(a)(3) claim, and

Fustolo's presumed destruction of emails are actionable as such.

Regardless     of   whether     the     evidence     contained    within        the

judicially-noticed      items    are    "more    strongly    relevant"     to    a


                                       -22-
§ 727(a)(6) claim, Haught, 681 F.2d at 305 (quoting Wallin v.

Fuller, 476 F.2d 1204, 1210 (5th Cir. 1973)), they are not relevant

only to such a claim, see DCPB, 957 F.2d at 917.    Therefore, the

failure to object to the request for judicial notice cannot

constitute implied consent.

     3. Patriot's Opening Statement

           We turn next to Patriot's opening statement at trial, at

which Patriot's counsel proclaimed that "the evidence will also

show that Mr. Fustolo has repeatedly abused the bankruptcy process,

violated this Court's orders, failed to preserve evidence and based

on the totality of all of the evidence we will ask your Honor to

deny Mr. Fustolo a discharge with prejudice."       The bankruptcy

court found that this statement, and the court's subsequent inquiry

about the existence (or lack thereof) of a subsection (a)(6) claim

put Fustolo "on notice at the very outset of the trial of the

possibility of a § 727(a)(6)(A) claim."    In re Fustolo, 563 B.R.

at 106.   Fustolo argued before the bankruptcy court that Patriot's

denial of the existence of an (a)(6) claim constituted a waiver,

an argument that the court rejected.   See id.

           Fustolo again raises this argument on appeal, adding for

support Patriot's limited request for relief as sanctions for

Fustolo's disobedience of the December 31 Order.       We need not

delve into the merits of this argument as we find that Patriot's


                               -23-
opening statement did not provide adequate notice of a trial on

the   failure-to-obey-a-lawful-court-order   subsection    (a)(6)(A)

claim.    The bankruptcy court reasoned that Patriot's accurate

response about the absence of a § 727(a)(6) cause of action did

not nullify the notice provided by Patriot's opening statement

because later evidence, particularly his testimony, introduced at

trial pertained to the unpleaded claim.   Id. at 106-07.   But, the

bankruptcy court did not account for Patriot's failure to raise a

request for amendment of its pleadings during the two trial days5

following Fustolo's testimony, and the court's own recitation at

the trial's conclusion of the claims litigated, and Patriot's

affirmation of those claims.    Additionally, Patriot's inclusion

of the court-order violation in its opening statement, combined

with its disavowal of the existence of an (a)(6) claim immediately

following, supports the conclusion that Fustolo's violation of

court orders was relevant to the extant claims.   Cf. United States

v. Ciampa, 793 F.2d 19, 25 (1st Cir. 1986) (finding trial judge's

interruption of opening statement alluding to evidence "of only

collateral relevance" was justified); United States v. Hershenow,

680 F.2d 847, 858 (1st Cir. 1982) ("The function of the defendant's

opening statement is to enable him to inform the court and jury



5   The trial was held on non-consecutive days.


                               -24-
what he expects to prove . . . ." (alteration in original) (quoting

United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir. 1975))).

              In        light     of    this        repeated     confirmation       that     no

§ 727(a)(6)        claim        was    to    be   or     had   been    litigated,   and    the

ambiguity related to the "violat[ion] of this Court's orders" noted

in part II(C)(1) supra, Patriot's opening statement did not provide

adequate notice of the claim raised in Patriot's motion to amend.

Patriot's lack of objection did not constitute implied consent.

       4. Fustolo's Testimony

              Finally, we reach Patriot's examination of Fustolo on

trial day four.              The bankruptcy court found that Fustolo's failure

to     object      to     Patriot's          line      of    questioning     "constitute[d]

acquiescence at trial in the introduction of evidence which was

more strongly relevant to the issue of Fustolo's noncompliance

with    the     December         31st       Order."         Fustolo,   563   B.R.   at     108.

Patriot's counsel's questions and Fustolo's answers addressed

Fustolo's compliance, or non-compliance, with the December 31

Order.     But, again, the substance of the unchallenged testimony

is   pertinent          to    other     claims      already     presented.       While     the

testimony also relates to a possible § 727(a)(6) claim, stray

references that arguably point to a new claim cannot easily

generate a finding of acquiescence when they are accompanied by an




                                                  -25-
express disavowal of such a claim that is not itself recanted until

months after the trial.

             Accordingly, Fustolo's testimony was not relevant only

to the unpleaded issue and therefore cannot be construed to imply

consent.

D. Prejudice

             While a lack of consent constitutes sufficient grounds

for denying amendment, see In re Rauh, 119 F.3d at 52 ("A post-

trial motion to conform the judgment to the evidence should not be

allowed . . . unless the opposing party expressly or impliedly

agreed to try the matter in question."), there remains another

reason why the bankruptcy court's judgment allowing the motion to

amend must be reversed.       Patriot's request to amend its pleadings

was first noted two months after trial in its post-trial brief,

and a formal Motion to Conform the Pleadings to the Evidence was

not filed until almost three months after the trial's conclusion.

"We think that prejudice is an almost inevitable concomitant in

situations    where,    as   here,   the      late   amendment    attempts    to

superimpose a new (untried) theory on evidence introduced for other

purposes."     DCPB, 957 F.2d at 917 (citing Grand Light & Supply

Co., Inc. v. Honeywell, Inc., 771 F.2d 672, 680 (2d Cir. 1985)).

When   considering     the   prejudice   to    the   non-moving    party,    the

appellate court may consider "whether the movant has shown any


                                     -26-
justification for its delay in moving to amend."     Id. at 917-18

(finding prejudice where motion to amend was not based on new facts

or a newly decided case); see also Campana, 755 F.2d at 216

(finding no justification for the delay in moving to amend where

motion to amend was made in response to a jury question).

           Here, Patriot's justification for its delay is not based

on any newly discovered facts or changes in the law.      While the

bankruptcy court imputed the knowledge of a possible § 727(a)(6)

claim on Fustolo as early as the March 17, 2016, Patriot too must

be held to the same standard of foreseeability in this analysis.

We do not intend to imply that a plaintiff must move to amend

immediately after the non-movant is put on notice of a new claim;

for that matter, Rule 15(b)(2) explicitly contemplates that a

motion to amend can occur "even after judgment," which, by its

nature, occurs after the non-moving party had notice of the new

claim through evidence introduced at trial.   Nonetheless, a moving

party must provide a sufficient justification to excuse its delay.

See DCPB, 957 F.2d at 917-18; Campana, 755 F.2d at 216.

           Furthermore, "[k]nowledge heightens the need for prompt

action."   DCPB, 957 F.2d at 918.      Before this court, Patriot

proffers that it did not move to amend its complaint between March

17, 2016, and the commencement of trial because it did not want to

give Fustolo an opportunity to seek further delay.   But, a desire


                               -27-
to avoid a trial delay cannot justify precluding the opposing party

an opportunity to react to the new claim cannot justify a delay in

moving to amend.        Moreover, as noted in one of the bankruptcy

court's orders that Patriot included in its request for judicial

notice, the court had set an expeditious trial date as a sanction

for Fustolo's violation of the December 31 Order, militating the

concern of future substantial delays.             Between the March 17, 2016

sanctions hearing and the beginning of trial, the bankruptcy court

denied Fustolo's motion to continue trial on March 24, 2016,

Fustolo's motion for reconsideration of that denial on April 8,

2016, and Fustolo's motion to continue a hearing on May 16, 2016,

Patriot's    justification,       a      confession      of      sandbagging,    is

unpersuasive in light of the March 17, 2016 sanction imposed.

            Patriot   further     states     that   it     was   "busy   finishing

discovery . . . [and] preparing for trial," as a reason for the

delayed   motion   to    amend,    and    notes     both      parties'   counsel's

previously scheduled vacations in relation to its delayed post-

trial   filing.       But,   Patriot's       busyness      cannot    justify    the

injection at the eleventh hour of a new theory of discharge denial

based on previously-available facts -- Fustolo's failure to comply

with the bankruptcy court's December 31 Order.                 See DCPB, 957 F.2d

at 918; see also Stonkus v. City of Brockton Sch. Dep't, 322 F.3d

97, 101 (1st Cir. 2003) ("Most attorneys are busy most of the time


                                      -28-
and they must organize their work so as to be able to meet the

time requirements of matters they are handling or suffer the

consequences.").

           Because we find that Fustolo did not have fair notice of

the unpleaded claim and was prejudiced by its addition, we hold

that the bankruptcy court's allowance of Patriot's motion to

conform its pleadings under Fed. R. Civ. P. 15(b)(2) was an abuse

of   discretion.   Finding   the    bankruptcy   court's   allowance   of

Patriot's motion to amend improper, we need not reach the merits

of Fustolo's claim that § 727(a)(6) does not apply to his assertion

of his Fifth Amendment right against self-incrimination.

                          III. CONCLUSION

           "The truth-seeking function of our adversarial system of

justice is disserved when the boundaries of a suit remain ill-

defined and litigants are exposed to the vicissitudes of trial by

ambush."   Doral Mortg., 57 F.3d at 1172.        Here, for the reasons

stated above, Fustolo did not receive adequate notice of an

unpleaded claim, and did not provide his implied consent.              We

therefore REVERSE the bankruptcy court's order and REMAND for

further proceedings consistent with this opinion.           We take no

position as to the merits of any remaining claims and leave such

further analysis to the bankruptcy court.




                                   -29-
