
USCA1 Opinion

	




          October 11, 1996                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ________________________          No. 96-1113                    BORSCHOW HOSPITAL AND MEDICAL SUPPLIES, INC.,                                Plaintiff - Appellant,                                          v.                            CESAR CASTILLO, INC., ET AL.,                               Defendants - Appellees.                                                                                      ________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of this court  issued on September  23, 1996 is          corrected as follows:               On page 3, line 9, change Borschow to Becton Dickinson.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1113                    BORSCHOW HOSPITAL AND MEDICAL SUPPLIES, INC.,                                Plaintiff - Appellant,                                          v.                             CESAR CASTILLO INC., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                        Torres* and Saris,** District Judges.                                             _______________                                _____________________               Fernando L. Gallardo,  with whom Harry E. Woods, Geoffrey M.               ____________________             ______________  ___________          Woods, Woods & Woods  and Carlos R. Iguina-Charriz were  on brief          _____  _____________      ________________________          for appellant.               Donald R. Ware, with whom Richard M. Brunell and Foley, Hoag               ______________            __________________     ___________          & Eliot were on brief for appellee Becton Dickinson and Company.          _______               Edilberto  Berr os-P rez  and  Luis   Fern ndez-Ram rez  for               ________________________       ________________________          appellees C sar Castillo, Inc.,  Umeco, Inc., Jos  Luis Castillo,          Ivonne Belaval  de Castillo, C sar Castillo,  Jr., Aracelis Ortiz          de Castillo and Mar a Isabel Gonz lez.                                 ____________________                                  September 23, 1996                                        ____________________          *  Of the District of Rhode Island, sitting by designation.          **  Of the District of Massachusetts, sitting by designation.                                         -2-                                 ____________________                                         -3-                    SARIS,  District  Judge.   Plaintiff-Appellant Borschow                    SARIS,  District  Judge.                            _______________          Hospital  & Medical Supplies, Inc. is a  distributor of a line of          medical  and surgical  products  supplied by  Defendant-Appellee,          Becton Dickinson and Company,   in Puerto Rico.   Borschow claims          that  Becton Dickinson violated  the Puerto Rico  Dealers Act, 10          L.P.R.A.    278,  also commonly  known as  "Law 75,"  by granting          additional  distributorships  in   violation  of  its   allegedly          exclusive    Distributorship    Agreement.1       Although    the          Distributorship  Agreement  contained  a   clear  non-exclusivity          provision  and  integration clause,  Borschow  contends  that the          district court erred under Puerto Rico's parol evidence rule when          it  excluded an  unsigned  written memorandum  sent prior  to the          signing of the  agreement as evidence  that the parties  actually          intended the distributorship to be exclusive.                      Borschow also  claims that Becton Dickinson  engaged in          an  unlawful tying arrangement in  violation of Section  1 of the          Sherman  Act,  15 U.S.C.    1,  by  threatening to  discontinue a          supply  of a  line of  its products  (the tying  products) unless          Borschow  also carried  its syringe line  (the tied  product) and          dropped that of a competitor.                                          ____________________          1   The additional  distributorships were granted  to Defendants-          Appellees  Cesar Castillo, Inc.  and UMECO,  Inc., which  filed a          separate brief.   At oral argument,  Becton Dickinson argued  for          the Appellees as a group.   Where we refer to Becton Dickinson in          the course  of this opinion, we  mean our statements to  apply to          Appellees  as   a   group  except   where  otherwise   indicated.          Similarly, to avoid confusion where referring to the testimony of          Jonathan  Borschow, Borschow's president, we will refer to him as          Mr. Borschow and to the company simply as Borschow.                                         -2-                    The district court granted summary judgment for Becton          Dickinson on both claims.  We affirm.                              I.  STATEMENT OF THE CASE                              I.  STATEMENT OF THE CASE                    A. Facts                    A. Facts                    Reviewing  the   factual  record  in   the  light  most          favorable to the nonmoving party, as we must at summary judgment,          see  Mesnick v.  General Elec. Co.,  950 F.2d 816,  822 (1st Cir.          ___  _______     _________________          1991),  cert. denied, 504 U.S. 985 (1992), we treat the following                  ____________          facts  as controlling,  noting,  however,  that Bectin  Dickinson          disputes many aspects of this account.                    A major  supplier of  medical products in  Puerto Rico,          Borschow contracted with Parke Davis & Company ("Parke Davis") on          May 1, 1985 to distribute a line of medical and surgical products          manufactured  by  its  subsidiary,  Deseret  Medical,  Inc.  (the          "Deseret Line").  In  mid-1986, Becton Dickinson acquired Deseret          and  assumed  Parke  Davis' obligations  under  the  distribution          agreement as  an assignee.   This dispute turns in  large part on          the content of that agreement.                    The  distribution  agreement executed  by  Borschow and          Parke  Davis ["Distribution Agreement"],  includes two provisions          of  interest here.  First, it provides that "Company [i.e., Parke          Davis]  hereby  appoints  Distributor [i.e.,  Borschow]  and  the          Distributor   hereby  accepts   appointment,  as   the  Company's          nonexclusive independent distributor of the  Products for Regular          ____________          Business  in the Territory [i.e., Puerto Rico] during the term of          this  Agreement."    Distribution  Agreement,     2.1.2 (emphasis                                         -3-                                          3          added).  Second, the  contract included the following integration          clause:                    Integration:   The terms and  provisions contained                    ___________                    in   this   Agreement,  including   all  Schedules                    attached hereto and  Company's Standard Terms  and                    Conditions of  Sale in effect, from  time to time,                    constitute the  entire agreement and  is the final                    expression  of intent between the Parties relating                    to  the subject  matter hereof and  supersede, all                    previous      communications,     representations,                    agreements,  and  understandings,  either oral  or                    written,  between the Parties  with respect to the                    subject  matter   thereof.     No   agreement   or                    understanding varying or extending  this Agreement                    will be binding upon either Party hereto unless in                    writing,  wherein  this Agreement  is specifically                    referred  to,  and   signed  by  duly   authorized                    officers  or  representatives  of  the  respective                    Parties.           Id.    9.10.  Borschow's president,  Jonathan Borschow, initially          ___          refused  to sign  any  contract that  included a  non-exclusivity          provision.   However, in  negotiations prior to  execution of the          Distribution  Agreement,  Robert  Vallance,   Deseret's  Regional          Director for Canada/Latin America,  assured Mr. Borschow that his          distributorship would  be exclusive.  Vallance  promised him that          he would receive a letter from Parke Davis promising exclusivity.          When  that letter  was not  forthcoming, Mr.  Borschow telephoned          Vallance  and  inquired  about  the delay.    Vallance  told  Mr.          Borschow  that  the  people  in "Morris  Plains,"  the  corporate          headquarters of Warner Lambert, Parke Davis' parent company, were          considering the matter.                    After that conversation, Mr. Borschow  received a draft          of the Distribution Agreement, which included the non-exclusivity          term.   He  again  objected to  Vallance  but was  told  that the                                         -4-                                          4          "contract cannot, it  will not be changed.   The people in Morris          Plains  will not  countenance it."   However,  Vallance reassured          Mr. Borschow that he would send a document that would outline the          "true" basis for their business relationship, including a promise          that Borschow's distributorship would be exclusive.                      Within a matter of  days, Mr. Borschow received a  two-          page undated and  unsigned outline.   The outline specifies  that          one  of the supplier's obligations is to "sell exclusively to the          DISTRIBUTOR  and refrain  from selling  to other  DISTRIBUTORS or          clients in the  territory while the AGREEMENT is in effect."  The          outline neither  explicitly mentions Mr. Borschow  or Parke Davis          nor  refers  to  the  May  1  Distribution  Agreement.   Borschow          testified   that   he   executed   the   Distribution   Agreement          approximately two weeks after he received the outline.2                     From the  execution of the  agreement in 1985  to 1986,          Borschow  remained  Parke  Davis' exclusive  distributor  of  the          Deseret line.   After Becton Dickinson's acquisition of   Deseret          in  mid-1986, no  changes  were made  in  the relationship  until          November 1989, when Becton Dickinson granted distributorships  to          UMECO, Inc.  and C sar Castillo, Inc.                    Moreover, according to Borschow and his salespeople, at          approximately the same time that the additional distributors were                                        ____________________          2     At  Mr.  Borschow's  deposition,  the  parties  marked  the          Distribution Agreement as BDX-1 and the undated outline as BDX-3,          and throughout its  brief Appellant  refers to  the documents  by          those numbers.  To avoid confusion, however, the Court will refer          to BDX-1 and BDX-3 as the Distribution Agreement and the Outline,          respectively.                                         -5-                                          5          established  in November  1989,  Becton  Dickinson demanded  that          Borschow cease  distributing the Monoject Syringe  & Needle Line,          made by  a Becton Dickinson  competitor, and  begin carrying  the          Becton Dickinson syringe line.   Becton Dickinson also threatened          that if  Borschow did not meet this demand, it would no longer be          supplied with  the Deseret line.   However, Becton  Dickinson did          not carry through on  this threat.  Although Borschow  refused to          drop  Monoject,  Becton  Dickinson continued  to  supply  Deseret          products to Borschow.                    B. Proceedings Below                    B. Proceedings Below                    Borschow  brought an action  in federal  district court          for the District  of Puerto  Rico on February  6, 1990,  alleging          that  Becton  Dickinson's termination  of  Borschow's "exclusive"          distributorship  violated Law  75  and  that  Becton  Dickinson's          threat to tie the  Deseret line to its syringe  line violated the          Sherman Act.   Borschow also alleged  a conspiracy with  Castillo          and  UMECO in  restraint of  trade and  attempted monopolization.          Federal  jurisdiction  was invoked  on  the  basis of  a  federal          question and diversity of citizenship.                    On September  24, 1990,  the  district court  permitted          discovery limited to the threshold issue as to whether Borschow's          distributorship  was  exclusive.   On  January  15, 1991,  Becton          Dickinson moved for summary judgment, asserting that taking these          facts  in the light most favorable to Plaintiff,  Borschow cannot          evade  the  effect of  its  written contract  providing  for non-          exclusivity.  If Borschow's contract was non-exclusive, according                                         -6-                                          6          to Becton Dickinson,  the Law 75 claim fails as  a matter of law.          In  addition,  Becton  Dickinson  argued  that  the  outline  was          extrinsic evidence of the  contracting parties' intent that could          not be considered  on summary judgment  because of Puerto  Rico's          parol evidence rule.                      The  motion was  referred  to a  magistrate judge,  who          issued a  report and  recommendation denying summary  judgment on          the  ground that  the extrinsic  evidence  raised issues  of fact          regarding whether  the agreement  provided for exclusivity.   The          district  court  (Acosta, J.)  initially  adopted  the magistrate          judge's  recommendation  without comment,  but  on  a motion  for          reconsideration, the court (Casellas, J.) granted partial summary          judgment  for  Becton Dickinson.3    The court  held  that Puerto          Rico's parol  evidence rule  barred consideration of  the outline          and that the contract  unambiguously provided for a non-exclusive          distributorship.   Borschow  Hosp.  & Medical  Supplies, Inc.  v.                             __________________________________________          C sar Castillo, Inc., 882 F. Supp. 236, 239-40 (D.P.R. 1995).  In          ____________________          a subsequent  order, the  court granted partial  summary judgment          for  Becton  Dickinson on  the antitrust  claims  due to  lack of          evidence of  tying,  anticompetitive  injury  or  conspiracy  and          dismissed the pendent state law claims.  Borschow timely appealed          the judgment.                                     II. DISCUSSION                                    II. DISCUSSION                    A. Standard of Review                    A. Standard of Review                                        ____________________          3   Judge  Acosta  took  senior  status  before  the  motion  for          reconsideration, and the case was reassigned to Judge Casellas.                                          -7-                                          7                    We review a district  court's grant of summary judgment          de  novo.  Werme  v. Merrill, 84  F.3d 479, 482  (1st Cir. 1996).          ________   _____     _______          The standard  is well-rehearsed and familiar.   "Summary judgment          is  appropriate  when  'the  pleadings,  depositions, answers  to          interrogatories,  and  admissions  on  file,  together  with  the          affidavits, if any, show that there is no genuine issue as to any          material fact and that  the moving party is entitled  to judgment          as a  matter of law.'"   Barbour  v. Dynamics Research  Corp., 63                                   _______     ________________________          F.3d  32, 36  (1st Cir. 1995)  (quoting Fed.  R. Civ.  P. 56(c)),          cert. denied, __ U.S. __, 116 S. Ct. 914 (1996).   "In operation,          ____________          summary  judgment's role  is  to pierce  the  boilerplate of  the          pleadings  and assay  the  parties' proof  in order  to determine          whether trial is actually required."  Wynne v. Tufts Univ. School                                                _____    __________________          of Medicine, 976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 507          ___________                                     ____________          U.S. 1030 (1993).   "To succeed, the moving party  must show that          there  is an absence of evidence to support the nonmoving party's          position."   Rogers v. Fair,  902 F.2d 140, 143  (1st Cir. 1990);                       ______    ____          see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).          ________ _____________    _______                    "Once  the  moving  party  has  properly  supported its          motion for summary judgment, the  burden shifts to the non-moving          party, who 'may  not rest on mere  allegations or denials  of his          pleading,  but must set forth  specific facts showing  there is a          genuine  issue  for trial.'"   Barbour,  63  F.3d at  37 (quoting                                         _______          Anderson  v. Liberty  Lobby,  Inc., 477  U.S.  242, 256  (1986)).          ________     _____________________          "There must be 'sufficient  evidence favoring the nonmoving party          for a jury to  return a verdict for that party.   If the evidence                                         -8-                                          8          is merely  colorable or  is not significantly  probative, summary          judgment  may be  granted.'"   Rogers, 902  F.2d at  143 (quoting                                         ______          Anderson, 477 U.S. at 249-50) (citations and footnote in Anderson          ________                                                 ________          omitted).  We "view the facts in the light most  favorable to the          non-moving  party,  drawing  all  reasonable  inferences  in that          party's favor."  Barbour, 63 F.3d at 36.                           _______                    B. The Law 75 Claim                      B. The Law 75 Claim                      "The  legislature  of Puerto  Rico  enacted  Law 75  to          protect distributors, agents, concessionaires and representatives          of  a  product  or  service  in   Puerto  Rico.  .  .  .   [M]ore          specifically, Law 75 was intended to protect dealers who built up          a  market,   from  suppliers   who  wish  to   appropriate  their          established clientele."   Medina & Medina v. Country Pride Foods,                                    _______________    ____________________          Ltd.,  825 F.2d 1, 2  (1st Cir.  1987).   "Law 75  provides that,          ____          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."   General Office Prods. Corp.                                                ___________________________          v.  Gussco Mfg. Inc., 666 F. Supp. 328, 328 (D.P.R. 1987) (citing              ________________          10 L.P.R.A.   278(a)).                    Law 75 has proved fertile ground for litigation, and we          recently  have  had  occasion  to  consider  its  application  to          circumstances analogous to those  presented here.  Although "non-          exclusive distributors are entitled  to protection under Law 75,"                                         -9-                                          9          Vulcan Tools of Puerto Rico v. Makita U.S.A., Inc., 23 F.3d  564,          ___________________________    ___________________          569 (1st Cir. 1994), "[i]t is equally true . . . that Law 75 does          not operate to convert non-exclusive  distribution contracts into          exclusive distribution  contracts."   Id. (citing Gussco,  666 F.                                                ___         ______          Supp. at  331).  As  we said  in Vulcan Tools,  "the 'established                                           ____________          relationship'  between dealer  and  principal is  bounded by  the          distribution  agreement, and  therefore  the  Act  only  protects          against  detriments to  contractually acquired  rights."   Id. at                                                                     ___          569.                      This  case turns  on whether  Borschow and  Parke Davis          (now   Becton  Dickinson)  contracted   for  a  non-exclusive  or          exclusive  distributorship.    If  the  former,  Borschow  cannot          prevail  on its claim that Law 75 prohibits Becton Dickinson from          supplying Deseret  medical products  to other distributors.   See                                                                        ___          Vulcan Tools,  23 F.3d at  569 (Law 75  did not prevent  supplier          ____________          from  establishing additional  distributorships  in  Puerto  Rico          where  non-exclusive  distributor was  already operating  even if          existing distributor  suffered  economic harm  as  result);  Nike                                                                       ____          Int'l  Ltd. v. Athletic Sales,  Inc., 689 F.  Supp. 1235, 1238-39          ___________    _____________________          (D.P.R.  1988) (where  distributorship contract between  Nike and          distributor provided  for notice of renewal  from distributor and          distributor failed to  provide such  notice, Law 75  did not  bar          termination of distributorship contract).                    As a civil law jurisdiction, Puerto Rico eschews common          law principles of  contract interpretation  in favor  of its  own          civil  code  derived from  Spanish law.    See Guevara  v. Dorsey                                                     ___ _______     ______                                         -10-                                          10          Labs., Div. of Sandoz,  Inc., 845 F.2d  364, 366 (1st Cir.  1988)          ____________________________          ("The Supreme Court of Puerto Rico has made clear that the common          law of the United States is not controlling  when filling gaps in          the  civil law system."); Gussco, 666 F.  Supp. at 332.  Thus, we                                    ______          turn  to Civil Code Article 1233, which "determines the manner in          which courts should interpret  contracts under dispute as to  the          meaning  of  their terms."    Hopgood v.  Merrill  Lynch, Pierce,                                        _______     _______________________          Fenner &  Smith, 839 F.  Supp. 98,  104 (D.P.R. 1993),  aff'd, 36          _______________                                         _____          F.3d 1089 (1st Cir. 1994) (table).  Article 1233 provides:                    If  the terms  of  a contract  are clear  and                    leave no  doubt as  to the intentions  of the                    contracting parties, the literal sense of its                    stipulations shall be observed.                    If the  words should  appear contrary  to the                    evident intention of the contracting parties,                    the intention shall prevail.          31 L.P.R.A.   3471 (1991).  "Under Puerto Rican law, an agreement          is 'clear' when it can 'be understood in one sense alone, without          leaving  any  room  for  doubt, controversies  or  difference  of          interpretation. . . .'"  Executive Leasing Corp. v. Banco Popular                                   _______________________    _____________          de Puerto Rico,  48 F.3d  66, 69 (1st  Cir.) (quoting Catullo  v.          ______________                                        _______          Metzner, 834 F.2d 1075, 1079 (1st Cir. 1987)) (internal quotation          _______          marks omitted), cert. denied, __ U.S. __, 116  S. Ct. 171 (1995);                          ____________          see also Heirs  of Ram rez v. Superior Court, 81  P.R.R. 347, 351          ________ _________________    ______________          (1959).                    Citing the  Puerto Rico  Supreme Court in  Marina Ind.,                                                               ____________          Inc. v. Brown Boveri Corp., 114 P.R. Dec. 64, 72 (1983) (official          ____    __________________          translation), several courts have  interpreted Article 1233 to be          "strict in  its mandate  that courts  should enforce the  literal                                         -11-                                          11          sense  of  a  written  contract,  unless  the  words  are somehow          contrary to the intent of the parties."  Hopgood, 839 F. Supp. at                                                   _______          104;  see also Vulcan  Tools, 23 F.3d at  567 ("When an agreement                ________ _____________          leaves no  doubt as  to the  intention  of the  parties, a  court          should not look beyond the literal terms of the contract.").                    This  interpretation of Article 1233 is complemented by          Puerto Rico's parol evidence  rule, P.R. Laws Ann. tit.  32, App.          IV, R. 69(B) (1983) ("Rule 69(B)"), which provides:                    When in an oral  or written agreement, either                    public   or  private,   all  the   terms  and                    conditions  constituting  the true  and final                    intention of the  parties have been included,                    such  agreement shall be  deemed as complete,                    and  therefore,  there  can  be  between  the                    parties,  or  successors   in  interest,   no                    evidence extrinsic  to  the contents  of  the                    same, except in the following cases:                    (1) Where a  mistake or  imperfection of  the                    agreement is put in issue by the pleadings;                    (2)  Where the validity  of the  agreement is                    the fact in dispute.                    This rule does not exclude other evidence  of                    the circumstances under  which the  agreement                    was made  or to which  it is related  such as                    the situation of  the subject  matter of  the                    instrument  or  that  of the  parties,  or to                    establish illegality or fraud.          We  have interpreted  this rule  in tandem  with Article  1233 to          require courts "to ignore [parol] evidence 'when the agreement           . . .  is clear and unambiguous.'"  Mercado-Garc a  v. Ponce Fed.                                              ______________     __________          Bank, 979 F.2d  890, 894  (1st Cir. 1992)  (quoting Catullo,  834          ____                                                _______          F.2d at 1079).                    Recently,  we  have  held  that  these  provisions  bar          consideration of  extrinsic evidence to vary  the express, clear,          and  unambiguous  terms of  a  contract.   See  Executive Leasing                                                     ___  _________________                                         -12-                                          12          Corp., 48  F.3d at  69-70  (refusing to  consider parol  evidence          _____          regarding implied loan term  barring leasing company from dealing          with  other banks where contract did  not include restriction but          did  include clear integration clause);  Vulcan Tools, 23 F.3d at                                                   ____________          564-68  (where  contractual  term  providing  for "non-exclusive"          distributorship was clear and  unambiguous, there was no need  to          consider  extrinsic  evidence  of  promise  to  limit  number  of          distributors even  absent contractual  integration clause);   see                                                                        ___          also  Hopgood,  839  F.  Supp.   at  103-05  (holding  that  term          ____  _______          "indefinite"   used  in  employment  contract  clearly  signified          employment at  will and  refusing to  consider parol  evidence of          implied guarantee of three-year minimum employment).                    This line of cases  effectively parries the main thrust          of  Borschow's appeal.   The  Distribution Agreement  clearly and          unambiguously gives Borschow  a "non-exclusive"  distributorship.          The integration clause, specifying  that the terms and provisions          of this Distribution Agreement constitute  the "entire agreement"          and "the final expression of intent," nullifies any other oral or          written understandings  reached between the  parties.   Crediting          Mr. Borschow's  testimony  that  he  received  the  outline  from          Vallance promising  an exclusive  distributorship, as we  must on          summary judgment,  we hold  that the integration  clause rendered          inoperative  any  such side-agreement,  and  we  are barred  from          considering the extrinsic evidence by Rule 69(B).                    Borschow attempts  to evade the effect  of this settled          precedent  by   arguing  that  the   entire  agreement,  properly                                         -13-                                          13          construed,  includes  both  the Distribution  Agreement  and  the          Outline.   Because  the documents  contain mutually  inconsistent          terms, Borschow contends that Article 1233 of Puerto Rico's Civil          Code permits  liberal consideration  of extrinsic evidence  as to          the  parties' intent to  resolve contractual ambiguity.   To some          extent, Borschow's  reliance on  this Civil Code  principle finds          some support  in Puerto Rico case  law.  The  Puerto Rico Supreme          Court has held that:                    The intention of the parties is the essential                    test provided  in the  Civil Code to  fix the                    scope  of contractual obligations.  This test                    of   intention  is   so   essential  in   the                    interpretation  of  contracts  that the  Code                    proclaims its supremacy in providing that the                    evident  intention  of   the  parties   shall                    prevail over the words, even where the latter                    would appear contrary to  the intention . . .                    .          Merle v. West  Bend, 97 P.R.R.  392, 399 (1969).   However,  that          _____    __________          court subsequently  clarified that  "[t]he strict mandate  of the          cited art. 1233 obliges us to abide by the literal meaning of the          terms of the contract when, as in the present case, they leave no          doubt  as to the  intention of  the contracting  parties." Marina                                                                     ______          Ind.  Inc. v.  Brown  Boveri  Corp.,  114  P.R.  Dec.  64  (1983)          __________     ____________________          (official translation).                    In rejecting essentially the  same argument now made by          Borschow, we applied this principle in  Executive Leasing Corp.:                                                  _______________________                    The  plaintiffs concede the loan agreement is                    clear.  They argue, however, that the written                    agreement   was  not   in  fact   the  entire                    agreement,   and   that   we  must   consider                    extrinsic  evidence  of  the parties'  intent                    with  respect to  integration. .  . .  Yet to                    consider extrinsic evidence at all, the court                                         -14-                                          14                    must  first find  the relevant  terms of  the                    agreement  unclear.    That  requirement  not                    being met, the district court  correctly went                    no further.          48  F.3d at 69 (excluding extrinsic evidence of exclusive dealing          condition and  of "actual practice" of  parties); accord Hopgood,                                                            ______ _______          839 F. Supp.  at 106  (explaining that Marina  and Merle  support                                                 ______      _____          principle that under Article 1233 the clear terms of the contract          are  the "embodiment of the indisputable intent of the parties as          they entered into the contract").                    For the third time,  we mean what we say,  and say what          we  mean:    extrinsic   evidence  of  the  parties'  intent   is          inadmissible in the face of a clear and unambiguous contract term          under Puerto  Rico Law.   Because Borschow's  distributorship was          non-exclusive as  a matter  of law,  the district  court properly          granted summary judgment for Appellees on the Law 75 claim.4                     C. Antitrust Claim -- Tying Arrangement                    C. Antitrust Claim -- Tying Arrangement                    Asserting  a per  se  violation of  Section One  of the                                 _______          Sherman Act,  Borschow  contends that Becton Dickinson threatened          to withhold sale of its patented Deseret line of medical products          (the tying product) unless  Borschow dropped the Monoject product                                        ____________________          4   While the Puerto  Rico parol evidence  rule permits extrinsic          evidence to establish fraud, Borschow does not allege that it was          fraudulently  induced  into signing  the  Distribution Agreement.          Nor  is  a  claim  of  equitable  estoppel  properly  before  us.          Borschow  contends  for the  first  time  on appeal  that  Becton          Dickinson should be  estopped from  denying the  existence of  an          exclusive contract because of the conduct of its agent, Vallance.          As this  argument was not  made below, it  is waived.   Executive                                                                  _________          Leasing Corp., 48 F.3d at 70.           _____________                                         -15-                                          15          and  carried instead  its own syringe  line (the  tied product).5          Contending  that this is "the case of  the tie that didn't bind,"          Becton Dickinson  argues that a  threat alone is  insufficient to          constitute an illegal tying arrangement.  We agree.                       "Section 1 of the Sherman  Act prohibits a seller  from          'tying'  the sale  of  one product  to the  purchase of  a second          product if the seller thereby avoids competition on the merits of          the 'tied' product.  See 15 U.S.C.   1 ('Every contract . .  . in                               ___          restraint  of  trade  or  commerce  .  .  .  is  declared  to  be          illegal.')"  Data General Corp. v. Grumman Systems Support Corp.,                       __________________    _____________________________          36 F.3d 1147, 1178 (1st Cir. 1994).   "There are essentially four          elements to  a per se  tying claim:   (1) the tying and  the tied                         ______          products  are actually  two distinct  products; (2)  there  is an          agreement or  condition, express  or implied, that  establishes a          tie; (3)  the entity  accused of  tying  has sufficient  economic          power in the market  for the tying product to  distort consumers'          choices  with  respect  to the  tied  product;  and  (4) the  tie          forecloses a substantial amount of commerce in the market for the          tied product."  Id. at 1178-79.6                          ___                                        ____________________          5    See Amended  Verified Complaint      28-29.   Plaintiff also          asserts a  claim under  the Clayton  Act,   3,  that we  need not          separately  address.    See Grappone  ,  Inc.  v.  Subaru of  New                                  ___ _________________      ______________          England, Inc.,  858  F.2d  792, 793  (1988)  (pointing  out  that          _____________          essential  elements of  unlawful tying  arrangement are  same for          alleged violations of  Sherman Act   1  or Clayton Act   3).   In          addition,  Borschow conceded  at oral  argument that  our holding          that the Distribution Agreement was non-exclusive would foreclose          relief on all of its antitrust claims except its tying claim.            6   Borschow  does not articulate  a "rule  of reason"  theory of          tying  liability.    Although  the  amended  verified   complaint          contains conclusory allegations  that Becton Dickinson's  conduct                                         -16-                                          16                    The fatal flaw in Borschow's tying claim is that Becton          Dickinson never withheld its Deseret line.  Although Borschow has          adduced evidence  of various threats  by Becton Dickinson,  it is          undisputed that these threats were not carried out.  Permitted to          carry both the Deseret  line and the Monoject line,  Borschow was          never injured  by the threat.   See  Wells Real  Estate, Inc.  v.                                          ___  ________________________          Greater  Lowell Board of Realtors,  850 F.2d 803,  814 (1st Cir.)          _________________________________          (holding that plaintiff must have been injured by anticompetitive          act to  have standing  under antitrust  laws), cert.  denied, 488                                                         _____________          U.S. 955 (1988).                    As a result, the second  key element discussed above --          evidence of a tie -- is missing:                    [T]he essential characteristic of  an invalid                    tying  arrangement  lies   in  the   seller's                    exploitation  of its  control over  the tying                    product to force the buyer into  the purchase                    of a  tied product that the  buyer either did                    not want  at all, or might  have preferred to                    purchase  elsewhere on different terms.  When                    such "forcing" is present, competition on the                    merits  in the  market for  the tied  item is                    restrained and the Sherman Act is violated.          Jefferson  Parish  Hosp. Dist.  No. 2  v.  Hyde, 466  U.S.  2, 12          _____________________________________      ____          (1984);  see also  T. Harris  Young &  Assoc., Inc.  v. Marquette                   ________  ________________________________     _________                                        ____________________          generally  had an  adverse  effect on  competition,  there is  no          evidence in the record to support the allegation that the threats          of tying  had such an adverse  impact, or to provide  a basis for          providing further  discovery pursuant to  Fed. R. Civ.  P. 56(f).          See Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 29-31          ___ __________________________________    ____          (1984)  (noting that  in absence of  per se  liability, antitrust                                               ______          plaintiff  must prove  that  defendant's conduct  had an  "actual          adverse  effect  on  competition"); R.W.  International  Corp. v.                                              __________________________          Welch  Food, Inc., 13 F.3d 478, 487-88 (1st Cir. 1994) (rejecting          _________________          request for  further discovery despite conclusory  allegations of          antitrust  injury  where  plaintiff  distributors  were  in  same          position as defendant to ascertain effect of conduct at issue).                                           -17-                                          17          Electronics, Inc., 931 F.2d 816, 822-23 (11th Cir.) ("[F]or a tie          _________________          to  exist a seller must withhold product  A unless the buyer also          selects product B.  Only after the existence of a tie is shown is          it necessary  to determine  whether an illegal  tying arrangement          exists.") (footnote omitted), cert. denied, 502 U.S. 1013 (1991);                                        ____________          CIA Petrolera Caribe, Inc. v. Avis Rental Car Corp., 576 F. Supp.          __________________________    _____________________          1011, 1016 (D.P.R.  1983) ("Coercion is  an essential element  of          any tying arrangement,  i.e., forcing the purchaser or  lessor to          take the unwanted  tied product along with  the tying product."),          aff'd, 735 F.2d 636 (1st Cir. 1984).          _____                    Where a tying  product has not been  withheld, there is          no tie.   "There is no  tie for any antitrust  purpose unless the          defendant   improperly  imposes  conditions  that  explicitly  or          practically  require buyers to  take the  second product  if they          want the first one."  10 Phillip E. Areeda et al., Antitrust Law:                                                             ______________          An  Analysis  of Antitrust  Principles  and  their Application             ______________________________________________________________          1752b, at  280 (1996).   Thus we  hold that there  is no  genuine          issue of material fact with respect to Borschow's tying claim.7                                   III.  CONCLUSION                                   III.  CONCLUSION                    For the foregoing  reasons, the district  court's grant          of summary judgment is AFFIRMED.                                 AFFIRMED                                                   ____________________          7    This holding  also disposes  of Borschow's  discovery claim.          Borschow contends  that the district court  abused its discretion          by  refusing to allow further  discovery.  However,  no amount of          discovery would uncover evidence of a non-existent tie.                                         -18-                                          18
