
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1080                    RESOLUTION TRUST CORPORATION, AS RECEIVER FOR                              COMFED SAVINGS BANK, F.A.,                                 Plaintiff, Appellee,                                          v.                       HAROLD GOLD AND GRAPHICS LEASING CORP.,                               Defendants, Appellants.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                                                                      ____________________                                Breyer,* Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Leonard M. Singer, with whom Heidlage  & Reece, P.C. was on brief             _________________            _______________________        for appellants.             Michael  J. Engelberg,  with whom  Ronald M.  Jacobs and  Nutter,             _____________________              _________________      _______        McClennen & Fish were on brief for appellee.        ________________                                                                                      ____________________                                    July 27, 1994                                                                                     ____________________                                    ____________________             *Chief Judge Stephen  Breyer heard oral argument in  this matter,        but  did not participate in the drafting  or the issuance of the panel        opinion.   The remaining  two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).                    CYR, Circuit  Judge.  Resolution Trust  Company (RTC or                    CYR, Circuit  Judge                         ______________          appellee), as receiver for  ComFed Savings Bank (ComFed), brought          the  present action on July 13, 1993, to recover monies allegedly          due  from  defendants-appellants  Harold  M.  Gold  and  Graphics          Leasing  Corporation  (collectively,  "Gold")  under  their joint          guaranty of  loans ComFed made  to First Equity  Funding Corpora-          tion.   Gold did not answer until  RTC filed its motion for entry          of  default.  The  late answer admitted  the guaranty, contesting          only  the  amount claimed  by RTC.    It asserted  no affirmative                     ______          defenses.                      On September 20, RTC moved for summary judgment.  After          failing  to  file  timely  opposition,   see  D.  Mass.  Loc.  R.                                                   ___          7.1(b)(2), Gold requested  more time for  discovery, see Fed.  R.                                                               ___          Civ.  P. 56(f),  and, on  October 22,  sought leave to  amend its          answer  to interpose four affirmative defenses,  see Fed. R. Civ.                                                           ___          P. 15(a).  The district court thereafter entered summary judgment          for  RTC and summarily denied Gold's belated request for leave to          amend its  answer, without ruling  on the request  for additional          discovery, and Gold appealed.  We affirm.                                           I                                          I                                      DISCUSSION                                      DISCUSSION                                      __________          Leave to Amend          Leave to Amend          ______________                                          2                    We review denials of  leave to amend under Rule  15 for          abuse  of discretion,  deferring to  the  district court  for any          adequate  reason apparent  from the  record.   Demars v.  General                                                         ______     _______          Dynamics Corp., 779 F.2d 95, 99 (1st  Cir. 1985); Farkas v. Texas          ______________                                    ______    _____          Instruments,  Inc., 429  F.2d  849, 851  (1st  Cir. 1970),  cert.          __________________                                          ____          denied, 401  U.S. 974 (1971).   Leave to  amend is to  be "freely          ______          given," Fed. R. Civ. P. 15(a), unless it  would be futile, North-                                                                     ______          east  Fed. Credit  Union v.  Neves, 837 F.2d  531, 536  (1st Cir.          ________________________     _____          1988),  or reward, inter alia, undue or intended delay, see Foman                             _____ ____                           ___ _____          v. Davis, 371 U.S. 178, 182 (1962).  As the Rule 15 motion in the             _____          present  case was  not filed  until after  RTC moved  for summary          judgment, Gold was required to  demonstrate to the district court          that the  proposed amendments were supported  by "substantial and          convincing evidence."  Torres-Matos  v. St. Lawrence Garment Co.,                                 ____________     _________________________          Inc., 901  F.2d 1144, 1146  (1st Cir. 1990)  (citations omitted).          ____          There was no such showing.                    The  first claim Gold  advances on  appeal is  that RTC          waived its  contractual right to immediate payment on default, an          affirmative defense Gold sought to interpose  in its tardy motion          to amend.  The proffered defense is frivolous.                      The ComFed demand note provides that, upon default, the                                                          ____ _______          entire loan balance becomes  "immediately due and payable without          notice or demand  of any kind."  Gold concedes  that no principal          or interest  payments were ever  made after  September 15,  1991.          The  note further provides that failure to pay any amount, within                                          3          ten  days after it is due, constitutes  an event of default.  The          waiver claim is based  on the belated affidavit of  Jeffery Stitt             a Gold consultant    submitted with Gold's untimely motion for          further discovery  under Rule 56(f).   Stitt's conclusory charac-          terizations  of  alleged  parol  discussions with  anonymous  RTC          employees  at unidentified  times  fall far  short of  "clear and          convincing evidence,"  id., of "decisive  and unequivocal conduct                                 ___          indicating  that  [RTC] would  not  insist  that the  contractual          provision at  issue be performed,"  Brennan v. Carvel  Corp., 929                                              _______    _____________          F.2d 801, 810 (1st Cir. 1991) (citations omitted) (applying Mass.          law).   Indeed, the Stitt affidavit does not constitute competent          evidence as  required by  Fed. R.  Civ. P. 56(e).   See  Lopez v.                                                              ___  _____          Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1515-16 (1st          ____________________________________          Cir. 1991) (Rule 56(e) requires  that affidavits filed in opposi-          tion to summary judgment be based on competent evidence).                      As  its  "Second  Affirmative  Defense,"  the  proposed          amended  answer simply alleged  that "The Complaint  is barred by          the doctrine  of estoppel."   Gold presented  neither explication          nor  argumentation in support of  the estoppel claim  in the dis-          trict court.  McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13,                        _____    ____________________________          22 (1st Cir. 1991) ("theories not raised squarely in the district          court cannot be surfaced  for the first time on  appeal."), cert.                                                                      ____          denied,  112 S.  Ct.  1939 (1992).   Nor  does  Gold discuss  the          ______          estoppel claim  on appeal.  Thus, even  if the estoppel claim had          been pleaded and preserved below, it would be deemed to have been                                          4          waived on appeal.  See, e.g., Rhode Island Hosp. Trust Nat'l Bank                             ___  ____  ___________________________________          v. Howard Communications Corp.,  980 F.2d 823, 828 n.8  (1st Cir.             ___________________________          1992).                      The  third  affirmative defense,  predicated  on Gold's          alleged  entitlement  to a  one-year  grace  period to  cure  the          default, fails due  to the  absence of competent  evidence of  an          enforceable waiver and the fact that the default was never cured.          See supra pp. 3-4.          ___ _____                    Finally, the proposed amended  answer asserts     based          exclusively on "information and belief"     that ComFed failed to          require the borrower to  submit appraisals substantiating the 75%          loan-to-collateral-value  ratio required  under  the note,  which          allegedly placed Gold at undue risk under its unconditional  loan          guaranty.   Not only does  Gold point to no evidentiary basis for          its "information and belief," it fails even to intimate that such          evidence  exists.    Moreover,  Gold's attempt  at  delaying  the          inevitable adverse judgment would have failed for  lack of compe-          tent evidence even if interposed in a timely manner.  See Fed. R.                                                                ___          Civ.  P. 56(e); Mesnick v.  General Elec. Co.,  950 F.2d 816, 822                          _______     _________________          (1st  Cir. 1991) (where nonmovant has ultimate burden of proof on          matter  at issue, summary judgment  motion must be  met by "defi-          nite, competent evidence"), cert. denied, 112 S. Ct. 2965 (1992).                                      ____  ______          Similarly, Gold's  perfunctory assertion  falls far short  of the          "convincing  evidence"  required  to  establish  a  "substantial"          defense.    See Torres-Matos,  901 F.2d  at  1146.   Lastly, this                      ___ ____________                                          5          "defense" is precluded by the express terms of the loan guaranty:          "[Gold]  hereby  waives any  other act  or  omission of  the Bank          (except acts or omissions  in bad faith) which changes  the scope          of [Gold's] risk."  Gold has not alleged bad faith.                      In sum, the motion for leave to amend, proffered at the          eleventh hour to fend off summary judgment, proposed four patent-          ly futile affirmative defenses fully meriting summary  rejection.          Jackson v.  Salon, 614  F.2d 15,  17  (1st Cir.  1980); see  also          _______     _____                                       ___  ____          Neves, 837 F.2d at  536 ("Federal courts need not  tiptoe through          _____          empty formalities to reach foreordained results.").          Summary Judgment          Summary Judgment          ________________                    Gold failed to oppose RTC's motion for summary judgment          within  the fourteen-day period prescribed by local rule.  See D.                                                                     ___          Mass. Loc. R.  7.1(b)(2).  Of course, the failure  to file timely          opposition did  not necessarily entitle RTC  to summary judgment.          Lopez, 938  F.2d at 1517; Mendez v. Banco Popular de Puerto Rico,          _____                     ______    ____________________________          900 F.2d 4, 7 (1st Cir. 1990).  Summary judgment  was proper only          if  the record,  viewed  in the  light  most favorable  to  Gold,          revealed no  trialworthy  issue  of  material fact  and  RTC  was                                                              ___  ___  ___          entitled to judgment as a matter of law.  Velez-Gomez v. SMA Life          ________ __ ________ __ _ ______ __ ___   ___________    ________          Assur. Co., 8 F.3d 873,  875 (1st Cir. 1993); Lopez, 938  F.2d at          __________                                    _____          1517.   On the other  hand, Gold's untimely  submissions need not          have been considered  by the  district court  in determining  the                                          6          appropriateness of summary judgment.  See Mendez, 900 F.2d at 7-8                                                ___ ______          (citing cases).                    RTC proffered  competent evidence that Gold  was liable          in  the amount  claimed under  its loan  guaranty.   Moreover, an          examination of all  of Gold's  submissions    timely  as well  as          untimely     has not disclosed  a trialworthy  issue of  material          fact relating either to the amount of the  indebtedness or to any          affirmative defense  belatedly asserted  in  the district  court.          There  is no basis for vacating summary judgment in these circum-          stances.1          "Just Damages" Under Rule 38          "Just Damages" Under Rule 38           ___________________________                                        ____________________               1Nevertheless, Gold frivolously contends  on appeal that the          district  court committed  reversible  error in  granting summary          judgment  without  first ruling  on  Gold's  late and  groundless          request for further discovery  time, pursuant to Fed. R.  Civ. P.          56(f).   The request was predicated on the unsubstantiated specu-          lation that it is  logically possible that the amount  owed under                                       ________          the loan  guaranty is  different than  the amount  established by                                                             ___________          RTC.  Since Gold  does not even hint at any discoverable evidence                                                      ____________ ________          to substantiate this speculation,  it has presented "no plausible          basis for asserting a  belief that 'specified' discoverable facts          probably existed."  Mattoon v. City of Pittsfield, 980 F.2d  1, 8                              _______    __________________          (1st  Cir.  1992) (citing  Paterson-Leitch  Co.  v. Massachusetts                                     ____________________     _____________          Munic. Wholesale Elec. Co.,  840 F.2d 985, 988 (1st  Cir. 1988)).          __________________________          Further,  Gold made no attempt whatever to demonstrate the requi-          site good  cause for  failing to  conduct the discovery  earlier.          Id.  It is all too clear, given Gold's  dilatory tactics through-          ___          out  this litigation, that the Rule 56(f) initiative was simply a          frivolous,  last-ditch effort  to stave off  final judgment.   We          find no  abuse of  discretion in  the  district court's  implicit          denial of the Rule 56(f) motion  in these circumstances.  See id.                                                                    ___ ___          (finding  insufficient  a  Rule  56(f)  affidavit  which  "merely          conjecture[d] that  something might be discovered  but provide[d]          no  realistic basis  for believing  that further  discovery would          disclose evidence" of material facts).                                          7                    Finally, RTC  requests  an  award  of  "just  damages,"          including attorney  fees and  double costs, pursuant  to Fed.  R.          App. P. 38.  Even though  Gold failed to interpose opposition  to          an  award of just damages, we have discussed its frivolous appel-          late claims  at undeserved length  in order to  demonstrate their          dilatory aim  and amenability to  sanction.   Moreover, Gold  has          offered no  other plausible  explanation, let alone  a justifica-          tion,  for its dilatory  litigation tactics  below or  on appeal.          Accordingly,  a reasonable  attorney fee  award and  double costs          shall  be  imposed  against  Gold for  this  frivolous,  dilatory          appeal.   See Cowdell v. Cambridge  Mut. Ins. Co.,  808 F.2d 160,                    ___ _______    ________________________          163 (1st  Cir. 1986) (pursuant  to Fed.  R. App. P.  38, awarding          double  costs  and attorney  fee  as just  damages  for frivolous          appeal).                     The district court judgment  is affirmed.  Double costs                    The district court judgment  is affirmed.  Double costs                    ________________________________________   ____________          and  a reasonable attorney fee  are awarded to appellee, pursuant          and  a reasonable attorney fee  are awarded to appellee, pursuant          _________________________________________________________________          to Fed.  R. App. P.  38, in  an amount  to be  determined by  the          to Fed.  R. App. P.  38, in  an amount  to be  determined by  the          _________________________________________________________________          court.   Appellee is allowed  twenty days within  which to submit          court.   Appellee is allowed  twenty days within  which to submit          _____    ________________________________________________________          its  bill of costs and  an application for  a reasonable attorney          its  bill of costs and  an application for  a reasonable attorney          _________________________________________________________________          fee  award relating  to this  appeal.   A copy  thereof is  to be          fee  award relating  to this  appeal.   A copy  thereof is  to be          ____________________________________    _________________________          served  upon appellant's  counsel.   Appellant  shall be  allowed          served  upon appellant's  counsel.   Appellant  shall be  allowed          _________________________________    ____________________________          twenty days within which to file written objection to the amounts          twenty days within which to file written objection to the amounts          _________________________________________________________________          requested by appellee.  SO ORDERED.          requested by appellee.  SO ORDERED.          _____________________   __________                                          8
