
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1853                        FEDERAL DEPOSIT INSURANCE CORPORATION,                       AS RECEIVER FOR NEW MAINE NATIONAL BANK,                                Plaintiff, Appellant,                                          v.                             ROLAND HOUDE AND ORA HOUDE,                                Defendants, Appellees.                                 ____________________        No. 95-1854                        FEDERAL DEPOSIT INSURANCE CORPORATION,                       AS RECEIVER FOR NEW MAINE NATIONAL BANK,                                 Plaintiff, Appellee,                                          v.                             ROLAND HOUDE AND ORA HOUDE,                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Jaclyn  C.  Taner, Counsel,  with  whom  Ann S.  DuRoss, Assistant            _________________                        ______________        General  Counsel,  Colleen  B.  Bombardier,  Senior  Counsel,  Federal                           _______________________        Deposit Insurance  Corporation, Andrew Sparks,  Paul E. Peck,  John B.                                        _____________   ____________   _______        Emory and Drummond & Drummond were on briefs for plaintiff.        _____     ___________________            Jeffrey Bennett with whom  Melinda J. Caterine,  Clare S. Benedict            _______________            ___________________   _________________        and Bennett and Associates, P.A. were on briefs for defendants.             ____________________________                                 ____________________                                    July 24, 1996                                 ____________________            CAMPBELL,  Senior   Circuit  Judge.    The   Federal  Deposit                       _______________________            Insurance Corporation ("FDIC") appeals from an order, entered            in  the  United States  District  Court for  the  District of            Maine, dismissing its complaint to  collect the amount due on            a $275,000  promissory note  executed in  1986 by  defendants            Roland and Ora  Houde and made payable to  the Maine National            Bank, and to foreclose on  the mortgage securing the  Houdes'            indebtedness.   The  Houdes  cross-appeal  from the  district            court's denial of four pretrial motions.  For the reasons set            forth below, we affirm the district court's order.                                          I.                                          I.                      In  November 1986,  Roland and  Ora  Houde borrowed            $275,000  from the Maine  National Bank ("MNB"),  a federally            insured national  banking association, to finance  a business            venture.   They executed a  note and allonge made  payable to            MNB (collectively the "Note" or "Houde Note"), and secured by            a mortgage on property located  in Maine.  After MNB declared            insolvency in January  1991, ownership of the Note  passed to            the FDIC as receiver, the FDIC says.  The FDIC also says that            it  transferred the  Houde  Note  briefly  to the  New  Maine            National Bank  ("NMNB"), a  bridge bank set  up by  the FDIC.            After  the dissolution  of NMNB  in  July 1991,  many of  its            assets  were  purchased  by  Fleet  Bank  and  the  rest,  as            recounted  by  the FDIC,  passed  to  the  FDIC as  the  duly                                         -3-            appointed receiver for NMNB.   The FDIC asserts that the Note            was  among  the remaining  assets  transferred  to it.    All            parties agree, in any case, that the original Note was in the            possession of the FDIC at trial.                        The FDIC  says  that  it  hired  Recoll  Management            Corporation ("Recoll") to manage  the receivership assets  of            NMNB.  The FDIC maintains that Recoll took over management of            the Note  as well  as other obligations  owed by  the Houdes.            These other obligations  included loans from MNB  to Turcotte            Concrete,  a  corporation  of  which  Mr.  Houde  was  a  50%            shareholder,  that were guaranteed  by the Houdes.   Turcotte            Concrete filed  for bankruptcy  in 1991, and  as part  of the            bankruptcy  proceeding,   Recoll,  on  behalf  of  the  FDIC,            negotiated  an  agreement  in June  1993  resolving  Turcotte            Concrete's  debt  (the  "Conditional  Amendment  to  Guaranty            Agreements   and    Promissory   Notes,"    or   "Conditional            Agreement").    According  to  the  FDIC,  Recoll  separately            negotiated  with the  Houdes  concerning their  personal debt            evidenced by the Note.  The Houdes, however, contend that the            Conditional   Agreement    resolving   Turcotte    Concrete's            obligations,  by  its  own  terms,  released  their  personal            obligations on the Note.   On this theory, they have  made no            payments on the Note since June 1993.                      In July  1994, the  FDIC sued  the Houdes in  Maine            state  court to collect  the amount  due on  the Note  and to                                         -4-            foreclose  on the  mortgage securing  the  debt.   The Houdes            removed the  action to the  United States District  Court for            the  District of  Maine  and  then moved  to  dismiss or  for            summary   judgment  on   the   ground  that   their  personal            indebtedness  on  the   Note  had  been  discharged   by  the            Conditional Agreement.  The district court denied the motions            in  September 1994, concluding that there were genuine issues            of  fact as  to the  meaning  and intent  of the  Conditional            Agreement.  In  early 1995, the Houdes moved  for judgment on            the  pleadings as well  as for summary  judgment, reiterating            their claim  that  the  Conditional  Agreement  unambiguously            released them  from the  Note.  In  the Houdes'  Statement of            Undisputed Material  Facts submitted in connection with their            summary  judgment motion,  the Houdes  acknowledged that  the            FDIC had been appointed as receiver for MNB.  The Houdes also            moved to dismiss, or for a  default judgment based on a claim            that  the servicing  agreement between  the  FDIC and  Recoll            violated the Maine  champerty statute.  See 17-A   M.R.S.A.                                                      ___            516(1).  The FDIC cross-moved  for summary judgment.   In May            1995, the district court denied these motions.                        A jury  trial was  scheduled for  early June  1995.            Shortly  before trial,  the  FDIC filed  a  motion in  limine            seeking  to preclude the  Houdes from questioning  the FDIC's            standing to  recover on  the Note.   The Houdes  opposed this            motion.    The  district  court  denied  the  motion  without                                         -5-            addressing the merits  of the standing issue.   At trial, the            parties stipulated that  (1) the FDIC possessed  the original            Note,  (2) the  Houdes'  signatures  on  the  documents  were            authentic, and  (3) the  Houdes had made  no payments  on the            Note  since June  1993.   The  FDIC offered  in evidence  the            original  Note which  was payable  to  MNB and  had not  been            indorsed to any other entity.   The FDIC called as  a witness            James Golden, the FDIC account officer, who had only been the            custodian of the Houde file for the two weeks prior to trial.            Golden  testified to the series of events occurring after the            failure of MNB up until the time  of trial:  (1) the FDIC was            appointed receiver  of MNB,  (2) the Note  passed to  NMNB, a            bridge bank set up  by the FDIC, (3) the FDIC dissolved NMNB,            (4) the Note passed to the FDIC as receiver for NMNB.  Golden            testified that  the Note was  not among the NMNB  assets that                                          ___            Fleet Bank purchased  from the FDIC.  The FDIC  did not offer            or have with it any public or business records evidencing the            transfers to which Golden testified.                      The  Houdes objected  to Golden's testimony  and to            the  introduction of  the  Note  in  evidence,  arguing  that            Golden's testimony  was inadmissible  hearsay, as  he had  no            personal knowledge of the transactions to which he testified.            In addition, they argued that Golden's testimony was  not the            best evidence of  the transactions in question.  The district            court  sustained the  Houdes'  objection and  struck Golden's                                         -6-            testimony.   The FDIC  then requested a  short continuance to            allow   it   to  obtain   documentation  of   the  underlying            transactions to which Golden had testified.  The court denied            a continuance, granting judgment as  a matter of law in favor            of the  Houdes.  The  court stated  that there was  "no basis            whatsoever on which  a jury could conclude that the plaintiff            is entitled  to enforce this note."1  In response to the FDIC            counsel's   indication  that  he  would  file  a  motion  for            reconsideration of the directed verdict later that afternoon,            the   court  indicated  that  it  would  not  reconsider  its                                            ____________________            1.   The district court ruled from the bench:                      There is  a complete gap in  the evidence                      between  the  time  the  bank  [sic]  was                      lawfully  in  the   possession  of  Maine                      National  Bank  and  the   title  to  the                      document was in Maine National Bank,  and                      the time that it  ultimately came to rest                      in the possession of  this plaintiff, and                      there is  no formal  proof, first  of all                      that Maine  National Bank ever  went into                      receivership, if  so, what  happened with                      respect  to  any  of the  assets  of that                      institution   as   a  result   of   that,                      specifically what  happened with  respect                      to  this note and mortgage.  And there is                      no proof or evidence sufficient to permit                      a jury to reach a verdict in favor of the                      plaintiff with  respect to  what happened                      to that  note, and what has been referred                      to as its  many transitions in  ownership                      among,  apparently  New   Maine  National                      Bank, Fleet Management Corporation, Fleet                      Bank and  RECOLL Management  Corporation,                      and ultimately its transfer back into the                      possession of FDIC.  It is not even clear                      that the note ever left the possession of                      the FDIC in  the first place, but  all of                      that is completely in doubt.                                         -7-            decision.  The  court issued a final judgment  dismissing the            FDIC's action on June 8, 1995.                                         II.                                         II.                      The  FDIC contends that the district court erred in            finding that the evidence of the FDIC's ownership of the Note            was so inadequate  that the FDIC's claim to  enforce the Note            against its  makers, the  Houdes, fails as  a matter  of law.            Alternatively, the FDIC argues that the district court abused            its discretion in refusing to grant a brief continuance so as            to enable  the FDIC to  procure records that  would establish            its requisite  interest in the  Note.  The Houdes  reply that            the  FDIC  never  presented competent  proof  of  the various            transactions  through  which  it  allegedly  acquired  lawful            ownership  and possession  of  the  Note, Golden's  testimony            having,  in their  view, been  rightly  stricken as  hearsay.            They argue that  without such competent evidence,  the FDIC's            case failed as a matter of law.                       The  district court  dismissed the case  because it            concluded  that the  FDIC had  failed to  meet its  burden of            presenting  sufficient  evidence to  establish,  prima facie,            that it was  a party entitled to  enforce the Note.   Without            proper  proof of ownership, the Note  would not be admissible            as a basis for  the FDIC's claim.   The question, of  course,            would not be whether the FDIC's right to enforce the Note was                                         -8-            conclusively established  but whether  enough of  a case  was            made out  to go to the jury.   See Fed. R. Civ. P. 50(a) ("If                                           ___            . . . there is no legally sufficient  evidentiary basis for a            reasonable  jury to  find for  [a] party  on [an]  issue, the            court  may determine  the  issue against  that party  and may            grant  a motion for judgment as  a matter of law against that            party.").              1. The FDIC's Burden of Proof            1. The FDIC's Burden of Proof                      The FDIC argues  that possession of the Note  was a            sufficient basis for it to  be entitled to a presumption that            it could enforce  the Note.  The FDIC  points to federal law,            set  forth  in  FIRREA,2 providing  expressly  that  the FDIC            succeeds by  operation of  law to a  failed bank's  right and            title  in  all its  assets,  see 12  U.S.C.    1821(d)(2)(A),                                         ___            infra.   FIRREA, however,  does not spell  out what  the FDIC            _____            needs to prove in order to  show its entitlement to sue on  a            transferred  asset  like the  Note.   The  Supreme  Court has            recently held  that matters  left unaddressed  in FIRREA  are            controlled by  state law. O'Melveny  & Myers v. FDIC,  114 S.                                      __________________    ____            Ct. 2048, 2054 (1994).  We  look, therefore, to Maine law  to            supplement FIRREA in  determining what the FDIC,  as receiver            of NMNB, needed to show for  it to be found a party  entitled                                            ____________________            2.  FIRREA is  the Financial  Institutions Reform,  Recovery,            and  Enforcement Act  of  1989, 103  Stat.  183, codified  in            various sections of 12 and 18 U.S.C.                                         -9-            to enforce the Note.  See, e.g.,  RTC v. Maplewood  Invs., 31                                  ___  ____   ___    ________________            F.3d 1276, 1293-94 (4th Cir.  1994) (holding that question of            whether  RTC is a  holder in due course  is governed by state            law); see  also FDIC v.  Grupo Girod Corp.,  869 F.2d 15,  17                  _________ ____     _________________            (1st  Cir. 1989)  (applying  Puerto  Rico  law  to  determine            whether the FDIC was a holder in due course);  FDIC v. Bandon                                                           ____    ______            Assocs., 780 F. Supp. 60,  63 (D. Me. 1991).  But see FDIC v.            _______                                       _______ ____            World Univ.  Inc., 978 F.2d  10, 13-14 (1st Cir.  1992) (pre-            _________________            O'Melveny case).            _________                      The  applicable Maine law,  set forth in  the Maine            Uniform Commercial Code, Negotiable Instruments, 11  M.R.S.A.            3-1101  et  seq.,3  provides  that  a  note  qualifying  as a                    ________                                            ____________________            3.  The  Maine Uniform Commercial  Code was amended  in 1993,            after the execution  of the Note but before  the execution of            the Conditional Agreement  and before the institution  of the            lawsuit  in  question.   The  earlier  version  of the  Maine            Uniform Commercial Code, Negotiable Instruments, was codified            at 11 M.R.S.A.   3-101, et seq. (repealed in 1993).                                    _______                      Both  parties  have  taken  the  position  in  this            litigation  that the  Note is  a  negotiable instrument  (the            Houdes in  their appellate  brief, and  the  FDIC in  motions            submitted  to  the  district court),  and  neither  party has            argued  that  the Note  is not  a negotiable  instrument even            though, with its variable interest rate, the Note is arguably            not a negotiable instrument under the pre-1993 version of the            Maine  Uniform Commercial Code.   See e.g., FSLIC v. Griffin,                                              ________  _____    _______            935 F.2d 691, 697 n.3 (5th Cir. 1991), cert. denied, 502 U.S.                                                   ____________            1092  (1992); New  Conn. Bank  & Trust  Co., N.A.  v. Stadium                          ___________________________________     _______            Management Corp., 132  B.R. 205, 208-09 (D. Mass.  1991).  In            ________________            the  absence of  an applicable  statute,  the FDIC's  initial            burden would be  subject to Maine common law.   In discerning            the common law  requirements for the FDIC to show  that it is            entitled to enforce the variable interest rate Note, we would            be  inclined  to  look  to  the  statutory  requirements  for            enforcing  negotiable instruments by analogy.  As the parties            have not argued  otherwise and as it  is hard to see  how the            outcome of this case would change in any event, we proceed on                                         -10-            negotiable  instrument can  be  enforced  by "holder[s]"  and            "nonholder[s]  in possession of the instrument who [have] the            rights of [] holder[s]." See 11 M.R.S.A.   3-1301.4  The FDIC                                     ___            is plainly  not a "holder"  under Maine law because  the Note            was   not  indorsed  to  the  FDIC   and  therefore  was  not            "negotiated."5  See 11 M.R.S.A.   3-1201 ("[I]f an instrument                            ___                                            ____________________            the assertion that the Note is a  negotiable instrument under            Maine law.            4.  The  version  of  the Maine  Uniform  Commercial  Code in            effect  before  1993 also  provided that  holders as  well as            transferees  with the  rights  of  holders  could  enforce  a            negotiable  instrument.  See  11 M.R.S.A.    3-201, Comment 8                                     ___            (repealed 1993).            5.  The federal holder in due course doctrine, which provides            a buffer for the FDIC against certain defenses, does not give            the FDIC the  status of a "holder" in  the instant situation.            This Circuit has held that  the federal doctrine is generally            not applicable to the FDIC in its receivership capacity.  See                                                                      ___            Capitol Bank  & Trust Co.  v. 604 Columbus Ave.  Realty Trust            _________________________     _______________________________            (In  re  604 Columbus  Ave.  Realty  Trust),  968 F.2d  1332,            __________________________________________            1352-53  (1st Cir. 1992) (stating  that the federal holder in            due course  doctrine does not  apply to the FDIC  as receiver            except in the case of a purchase and assumption transaction);            see also FDIC  v. Laguarta,  939 F.2d 1231,  1239 n. 19  (5th            ________ ____     ________            Cir. 1991) (same).   But see Campbell Leasing,  Inc. v. FDIC,                                 _______ _______________________    ____            901 F.2d 1244, 1249 (5th   Cir. 1990) (stating that the  FDIC            may enjoy federal holder in due  course status whether acting            in its corporate or receivership capacity); Firstsouth,  F.A.                                                        _________________            v.  Aqua Constr.,  Inc., 858  F.2d 441,  443 (8th  Cir. 1988)                ___________________            (providing FSLIC-Receiver with  federal holder in  due course            status).                        We  note  that  the  continuing  viability  of  the            federal  holder in  due course doctrine  is questionable.   A            circuit split has arisen as  to whether the doctrine is still            valid after O'Melveny & Myers, supra.  Compare DiVall Insured                        _________________  _____   _______ ______________            Income Fund Ltd. Partnership v. Boatmen's First Nat'l Bank of            ____________________________    _____________________________            Kansas City, 69 F.3d 1398, 1402 (8th Cir. 1995) and Murphy v.            ___________                                     ___ ______            FDIC, 61 F.3d 34, 38 (D.C. Cir. 1995) (holding that O'Melveny            ____                                                _________            & Myers leaves no room  for common law D'Oench doctrine) with            _______                                _______           ____            MotorCity of  Jacksonville v.  Southeast Bank  N.A., 83  F.3d            __________________________     ____________________            1317,  1327-28 (11th  Cir. 1996).    This court  has not  yet                                         -11-            is  payable to  an  identified  person, negotiation  requires            transfer  of possession of the instrument and its indorsement            by the holder.");6  see also Calaska Partners Ltd. v. Corson,                                ________ _____________________    ______            672 A.2d  1099, 1104 (Me.  1996) (holding that holder  in due            course status is not conferred when financial instruments are            transferred in bulk to the FDIC).                        Not  being a  holder, the  FDIC had  to show,  as a            prerequisite to enforcing  the Note against the  Houdes, that            it was a transferee in possession entitled to the rights of a            holder.  See 11 M.R.S.A.   3-1203.  Comment 2 following    3-                     ___            1203 provides:                      If the transferee is not a holder because                      the  transferor  did   not  indorse,  the                      transferee  is   nevertheless  a   person                      entitled to enforce  the instrument . . .                      if  the transferor  was a  holder at  the                      time  of  transfer. . . .    Because  the                      transferee is  not a holder, there  is no                      presumption . . . that the transferee, by                      producing the instrument,  is entitled to                      payment.  The  instrument, by its  terms,                      is not payable to the transferee  and the                      transferee must account for possession of                      the unindorsed instrument  by proving the                      transaction through which  the transferee                      acquired  it.  Proof of a transfer to the                                     __________________________                                            ____________________            expressed an opinion as to the effect of O'Melveny & Myers on                                                     _________________            the doctrine.                        In any  event, the present case does  not present a            situation for  which the doctrine  was created.   The federal            holder in due course doctrine is designed to protect the FDIC            from  claims unascertainable  from the  books  of the  failed            institution, a purpose unrelated to the present.            6.  The term "negotiation"  is similarly defined in  the pre-            1993 statute, 11 M.R.S.A.   3-202 (repealed in 1993).                                         -12-                      transferee by a holder  is proof that the                      _________________________________________                      transferee has acquired  the rights of  a                      _________________________________________                      holder.  At that point  the transferee is                      _______                      entitled to the presumption . . . .            (emphasis added).7  Thus,  in order minimally to be  entitled            to the presumption under Maine  law that it could enforce the            Note, the  FDIC  was  required  (1)  to  prove  a  sufficient            transfer from a holder (here MNB, to which the Note was  made            payable by the Houdes) to the FDIC in its present capacity as            receiver of NMNB, and (2) to produce the Note at trial.              2. The Evidence At Trial            2. The Evidence At Trial                      The FDIC  brought this  action in  its capacity  as            receiver for  NMNB.  The NMNB was allegedly a bridge bank set            up pursuant to 12 U.S.C.    1821(n) by the FDIC following the            failure of MNB.  The FDIC produced the Note at trial, and the            parties stipulated  that the  signatures  were authentic  and                                            ____________________            7.  The  result would  not be  different  under the  pre-1993            version of the Maine Uniform Commercial Code which provided:                      [T]he transferee  without indorsement  of                      an order  instrument is not  a holder and                      so is  not aided by the  presumption that                      he  is   entitled  to   recover  on   the                      instrument  . .  . .   The  terms of  the                      obligation do not run to him, and he must                      account   for  his   possession  of   the                      unindorsed   paper    by   proving    the                      transaction through which he acquired it.                      Proof of a transfer to him by a holder is                      _________________________________________                      proof  that he has acquired the rights of                      _________________________________________                      a holder and  that he is entitled  to the                      _________________________________________                      presumption.                      ___________            11 M.R.S.A.   3-201, Comment 8 (repealed in 1993).                                         -13-            that  the instrument  the FDIC  possessed  was the  original.            What remained,  therefore, was  for the  FDIC to  establish a            proper  transfer of  the Note  to  it in  its suing  capacity            (receiver of NMNB) from the Note's holder, MNB.                        The first step in this transfer could rather easily            have  been established  given the  provisions of  FIRREA.   A            transfer of  all the holder's  (MNB's) rights in the  Note to            the FDIC as receiver for  MNB could be demonstrated simply by            showing that the  FDIC became the  receiver of MNB.   Once  a            receivership of a  failed bank takes place,   the transfer of            the failed bank's  assets to the FDIC occurs  by operation of            law  --  the  FDIC  as  receiver  of  a  failed   institution            succeeding under federal law to:                      (i)  all  rights,   titles,  powers,  and                      privileges  of  the   insured  depository                      institution, . . .                       (ii)  title to  the  books, records,  and                      assets  of  any previous  conservator  or                      other    legal    custodian    of    such                      institution.            12 U.S.C.   1821(d)(2)(A).                        The most  serious problem  in the  instant case  is            what additional  proof is  needed to  prove that  enforceable            title  to  the  Note  was  transmitted to  the  FDIC  in  its            subsequent and  present capacity  as receiver  of the  bridge                                                 ________________________            bank,  NMNB.   Under the  Maine  negotiable instruments  law,            ___________            there has to be "[p]roof of a transfer to the transferee by a            holder"  of the Note, establishing "proof that the transferee                                         -14-            [i.e., the FDIC as receiver  of NMNB] has acquired the rights            of a holder [MNB]."   11 M.R.S.A.   3-1203, Comment 2, supra.                                                                   _____            As  stated above, if  the FDIC were suing  in the capacity of            receiver  of  MNB, nothing  more  would  be required  than  a            showing  of such receivership,  coupled with a  production of            the Note, for the FDIC  to become entitled to the presumption            that  it was  entitled to payment.  But the FDIC  is suing as            receiver of a different entity,  NMNB.  There is no automatic            transfer provided by federal law of the assets of the FDIC as            receiver of  a failed bank to a bridge  bank, nor is there an            automatic transfer from  a bridge bank back to  the FDIC upon            the termination of the bridge bank.  See 12 U.S.C.   1821(n).                                                 ___                      A key  question, therefore,  is whether the  record            below  properly  established  the   formation  of  NMNB,  the            transfer  of the  Note to  NMNB, the demise  of NMNB  and the            appointment of the FDIC as  its receiver, and the transfer of            the Note  from NMNB to  the FDIC as receiver  of that entity.            The FDIC relied  on the testimony of its  witness, Golden, to            show  this.   Golden testified,  among  other things,  to the            FDIC's  receivership  of  MNB,  the  creation  of  NMNB,  the            subsequent  dissolution of NMNB,  and the Note's  transfer to            the  FDIC as  NMNB's receiver.   The  court, however,  struck            Golden's testimony.   We agree  with the  court that  Golden,            having taken over the Houde  file only two weeks before trial            and not claiming  direct personal knowledge of  these events,                                         -15-            could not testify to them over objection.  See Fed. R.  Evid.                                                       ___            602 ("A witness  may not testify to a  matter unless evidence            is  introduced sufficient  to  support  a  finding  that  the            witness has personal knowledge of the matter.")  Although, as            custodian of  the Houde file,  his testimony might  well have            been sufficient to authenticate  business records, admissible            under an exception to the  hearsay rule, that may have proved            the  underlying transactions, see  Fed. R. Evid.  803(6), the                                          ___            FDIC did not have any of the underlying documents with  it at            trial.   Nor was  the FDIC prepared  to offer  public records            such  as  might establish  the  appointment  of the  FDIC  as            receiver of  MNB and  NMNB respectively.   See Fed.  R. Evid.                                                       ___            803(8),  901(b)(7)   (indicating  that  public   records  are            admissible as an exception to the hearsay rule  and generally            self-authenticating).  Thus, the  FDIC was without admissible            evidence of  its ownership  of the Note.   The  FDIC conceded            that  it was  unprepared at  the time to  present alternative            evidence  after Golden's  testimony  was struck,  although it            said it could obtain the relevant evidence if the court would            grant a  brief continuance.   Without such a  foundation, the            court  declined  to  permit  the  Note  to  be  received into            evidence.  Without  the Note in evidence, the  FDIC felt that            it could not proceed.8                                            ____________________            8.  After a lengthy  discussion in which the  court indicated            that there was  insufficient evidence of foundation  to allow            the Note  into evidence  and that  even if  the FDIC  were to                                         -16-                      Attempting  to  justify   the  lack  of  admissible            foundation evidence,  the FDIC  now argues  that because  the            Note was  never indorsed  and  never made  payable to  anyone            other  than MNB,  it plainly  could not have  been sold  to a            third party by  the FDIC or the  bridge bank.  But  while the            absence  of  an  indorsement  on  the  Note  strengthens  the            argument that no one acquired a title superior to that of the            FDIC,  it  does not  by  itself  meet  the FDIC's  burden  to            "account  for  possession  of  the unindorsed  instrument  by            proving the transaction through which the transferee acquired            it."  11 M.R.S.A.   3-1203, Comment 2, supra.                                                     _____                      We  note that  the Houdes,  in  their Statement  of            Undisputed  Material Facts submitted to the district court in            conjunction  with  their  earlier  summary  judgment  motion,            conceded  that the FDIC was  appointed receiver for MNB, that            the  FDIC created NMNB,  that the  FDIC appointed  itself the                                            ____________________            provide  additional documentation  and witnesses  to  lay the            proper foundation,  it would be  in violation of  the court's            Final  Pretrial  Order,   the  court  declined  to   grant  a            continuance.  The following colloquy then took place:            [FDIC's Counsel]:   Then,  your  Honor,  we  have no  further                                witnesses.            THE COURT:          I take  it  the Plaintiff  rest [sic]  at                                this time?            [FDIC's Counsel]:   Yeah.            THE COURT:          Does the defendant rest?            [Houdes' Counsel]:  Defendant rest [sic] on the complaint and                                moves for directed verdict.                                           -17-            receiver  of NMNB, and  that "[i]t was  through these various            transactions  that the FDIC acquired the Note  . . . at issue            in this action."  The Houdes' subsequent facile recanting  of            this admission might arguably be the sort of "fast and loose"            play which  leads a court  to impose judicial estoppel.   See                                                                      ___            Patriot Cinemas, Inc.  v. General Cinema Corp., 834 F.2d 208,            _____________________     ____________________            212 (1st Cir. 1987).  However, the FDIC made no effort during            the trial to offer the Houdes' Statement in evidence in order            to establish  its own ownership of the  Note, nor did it make            an estoppel argument.9  In a case such as this with well over            a hundred docket entries, the  district court can scarcely be            expected to recall, sua sponte, a fact listed in one document            submitted by the Houdes to the court.  Moreover, although the            FDIC mentions the  Houdes' admission in its  appellate brief,            it does not  make a "judicial  estoppel" argument, or  indeed            any  other  coordinated  argument, as  to  why  the admission            should, at  this late date,  be binding on  the Houdes.   See                                                                      ___            United States v. Caraballo-Cruz,  52 F.3d 390, 393  (1st Cir.            _____________    ______________            1995)  (stating that  "issues adverted  to  in a  perfunctory                                            ____________________            9.  The FDIC did indicate to  the court, several hours  after            the court directed the verdict  for the Houdes, that it would            file  a motion  for reconsideration  of  the verdict  because            "there  were judicial  binding  admissions" submitted  by the            Houdes.    The district  judge  indicated that  he  would not            reconsider the  decision because  the FDIC  should have  been            prepared  to argue  that point at  trial.   The FDIC  did not            submit  a motion  for reconsideration.    Moreover, the  FDIC            makes no argument on appeal that the district court's refusal            to reconsider was an abuse of discretion.                                           -18-            manner,   unaccompanied   by   some   effort   at   developed            argumentation,  are  deemed   waived")  (internal  quotations            omitted).  Given the FDIC's failure to raise  the matter in a            timely fashion  before the  district court  and to  argue the            matter on appeal, we regard it as having been waived.                      The FDIC  also argues  that this  court should  now            take judicial  notice of  the failure of  MNB and  the taking            over of its assets by the FDIC.  This point was also not made            at trial below, the district  court never being asked to take            judicial  notice  of  these  facts.   It  is  true  that  the            appointment of  the FDIC  as receiver  of MNB  was previously            announced  and  relied  upon  as  a matter  of  fact  in  two            published opinions of this court issued prior to the district            court proceeding  under review, as  well as in  several prior            opinions  of the District of Maine, including opinions issued            by the  very  judge who  presided over  the present  trial.10                                            ____________________            10.  See, e.g., United States v. Fleet Bank of Maine, 24 F.3d                 ___  ____  _____________    ___________________            320,  322  (1st  Cir.  1994)  (reviewing a  decision  of  the            district court judge who decided the present case,  the Court            of Appeals stated:  "In January 1991, the Maine National Bank            . . . was  declared   insolvent  and   the  Federal   Deposit            Insurance  Corporation . . . was  appointed its  receiver.");            Bateman v. FDIC, 970 F.2d 924, 926 (1st Cir. 1992) (reviewing            _______    ____            a  decision of  the  district  court  judge who  decided  the            present case, Court of  Appeals stated:  "[I]n January  1991,            the federal Comptroller  of the Currency declared  the [Maine            National]   Bank  insolvent   and  appointed   the  FDIC   as            receiver."); Mill  Invs. v. Brooks  Woolen Co., 797  F. Supp.                         ___________    __________________            49,  50 (D. Me. 1992) (acknowledgement of same district court            judge  that FDIC was appointed  receiver of MNB); Cardente v.                                                              ________            Fleet Bank of  Maine, 796 F. Supp. 603, 606 n.1 (D. Me. 1992)            ____________________            (same).                                         -19-            Nonetheless, the  FDIC's judicial  notice argument  fails for            several reasons.   First,  even assuming  a court  could take            judicial notice of the failure  of the MNB, no party in  this            case  requested the  court to  take such  action.   While the            district court might well have taken judicial notice of these            well-known facts  sua sponte,  it was not  required to  do so            unless  requested.  See  Fed. R.  Evid. 201(c),(d).   Second,                                ___            even assuming  the district court,  or this court  on appeal,            did  take judicial  notice of  the  failure of  the MNB,  the            appointment of the FDIC as its receiver, and perhaps even the            creation of  the bridge bank,  these facts would  not relieve            the FDIC from its  burden of showing  a transfer of the  Note            from  the  bridge bank  to  the  FDIC  as receiver  for  that            institution.  These are not matters for judicial notice.                      We  conclude,  therefore,  with  some regret,  that            there was  no error in  the district court's ruling  that, on            the record as it stood, the FDIC had failed to meet its legal            burden.  We  hold that the record justified  the dismissal of            the  case as  matter of  law  on the  narrow but  dispositive            ground declared by the district court.            3. The Denial of the FDIC's Requested Continuance            3. The Denial of the FDIC's Requested Continuance                      The  FDIC argues  that even  assuming  the FDIC  as            receiver  of NMNB  failed  to  make out  a  prima facie  case            showing the transactions by which  it acquired the Note,  the                                         -20-            court's  refusal to grant the FDIC a continuance during which            it could  procure the  necessary records  and other  evidence            constituted an  abuse of discretion.  We  review the district            court's refusal to grant a continuance solely for an abuse of            discretion. See  United States v.  Neal, 36  F.3d 1190,  1205                        ___  _____________     ____            (1st Cir. 1994).                      Counsel for  the FDIC  first asked  for a  two-hour            break  and  then asked,  at  10:30  a.m.,  that the  case  be            continued until the next  day.  The district  judge indicated            that he  was not willing  to recess the case  because "[t]his            case should have been prepared  weeks ago."  In addition, the            judge noted  that even if  he did allow the  continuance, any            documents  or  testimony  the  FDIC  produced  would  not  be            admissible,  over objection,  because  it  would violate  the            court's Final Pretrial Order, which required a designation of            all  exhibits  and   witnesses  and  a  description   of  the            witnesses' testimony.  The judge stated:                      I am not going to continue this case, . .                      .  to do so means opening the entire case                      up,  probably  discharging this  jury  so                      that new procedures,  pretrial procedures                      about these documents can be carried  out                      in accordance with the prior order of the                      court.  It would  make a complete mockery                      of the systematic pretrial preparation of                      cases  and the  elaborate procedure  that                      the  Court has in place to see that these                      cases are properly tried.                      When reviewing a district court's decision  to deny            a  continuance, broad  discretion must  be  granted and  only                                         -21-            "unreasonable and  arbitrary insistence  upon expeditiousness            in  the  face  of  a  justifiable  request  for  delay"  will            necessitate reversal.  United States v. Rodriguez Cortes, 949                                   _____________    ________________            F.2d  532,  545 (1st  Cir.  1991)  (citing United  States  v.                                                       ______________            Torres, 793 F.2d 436, 440  (1st Cir.), cert. denied, 479 U.S.            ______                                 ____________            889  (1986)); see  also   Morris  v. Slappy,  461 U.S.  1, 11                          _________   ______     ______            (1983).   In determining  whether a  denial of  a continuance            constitutes an abuse  of discretion, the court  must consider            the particular facts  and circumstances  of each  case.   See                                                                      ___            Torres,  793 F.2d  at 440.    The court  should consider  the            ______            reasons  in  support  of  the request,  the  amount  of  time            requested,  whether  the   movant  has  contributed   to  his            predicament, the inconvenience to  the court, the  witnesses,            the jury  and  the  opposing  party, and  the  likelihood  of            injustice or unfair prejudice attributable to the denial of a            continuance.   See United  States v. Saccoccia,  58 F.3d 754,                           ___ ______________    _________            770 (1st Cir. 1995), cert. denied, 116 S.Ct. 1322 (1996).                                 ____________                      The FDIC  argues that the  district court's refusal            to grant a continuance led to injustice and unfair prejudice.            It  contends that  the time  needed to  gather the  necessary            evidence would not have greatly inconvenienced the court, the            jury or the Houdes, and that some of the documents would have            been self-authenticating records  admissible in court.   This            may  be so, but it overlooks a  number of factors pointing in            the other direction, among them  the presence of the jury and                                         -22-            the court's  reasonable expectation  that the  FDIC would  be            prepared  for  trial.     The  FDIC  contends   that  it  was            "surprised"  that it  had to  put  forth admissible  evidence            concerning its  ownership of  the Note.   However, we  see no            reason for the  FDIC to have been surprised.   The Houdes had            challenged the ability of the FDIC to enforce the  Note as an            affirmative defense in their answer and had later objected to            the FDIC's motion, which  the court denied, to preclude  them            from challenging  the FDIC's  standing to  enforce the  Note.            The  FDIC was  plainly on  notice  that it  was dealing  with            adversaries  who refused  to take  a  relaxed "common  sense"            approach  on  these   technical  but  nonetheless   requisite            preliminaries.   Indeed, the  FDIC showed that  it understood            its  burden by  calling  Golden and  questioning  him on  the            matters  it  did.    Unfortunately,  it  seems  not  to  have            recognized   the  hearsay   problem   inherent  in   Golden's            testimony, nor to have taken the trouble to have  with it the            necessary supporting documents.                       The court was  entitled to expect the FDIC  to have            special competence  in actions such  as this.  This  suit had            been commenced ten months earlier and, as said, the FDIC knew            the Houdes would challenge its  standing to enforce the Note.            It was the FDIC's failure to have prepared its case for trial            that led to the request for a continuance.  While the court's            action was strict,  and we can imagine some  judges who would                                         -23-            have assessed the  situation more charitably to the  FDIC, we            cannot say  that it abused  its discretion in not  giving the            FDIC additional time to remedy its lack of preparation.  See,                                                                     ___            e.g.,  Rodriguez  Cortes,  949  F.2d  at  545  (holding  that            ____   _________________            district court did not abuse its discretion in denying motion            for continuance in  order to obtain  witness to testify  that            time  indicated on hotel registration card was incorrect when            defendant had  been in  possession of the  time card  for six            months and had  ample time to  obtain a witness).   Given the            costs  of trials, especially  before juries, and  the adverse            effects  of delay  in  one case  on  other litigants  seeking            trials, judges must  be allowed a considerable  discretion in            these matters.  We find no abuse here.                                         III.                                         III.                      Because we find  that the  district court  properly            directed a  verdict in favor  of the Houdes and  acted within            its   discretion  in  denying   the  FDIC's  request   for  a            continuance, we  need  not reach  the  issues raised  in  the            Houdes' cross-appeal.            Affirmed.            Affirmed.            _________                                         -24-
