
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1854                         CREDIT FRANCAIS INTERNATIONAL, S.A.,                                 Plaintiff, Appellee,                                          v.                       BIO-VITA, LTD., HEMO-INNOVATIONS, LTD.,                               Defendants, Appellants.                                                                                      ____________________        No. 95-1091                               BIO VITA, LTD., ET AL.,                                Plaintiffs, Appellees,                                          v.                               CARL W. RAUSCH, ET AL.,                               Defendants, Appellants,                                                                                      ________                          IDEAL ENVIRONMENTAL SYSTEMS, INC.,                             Counterclaimant, Appellant.                                                                                      ____________________        No. 95-1092                               BIO VITA, LTD., ET AL.,                                Plaintiffs, Appellees,                                          v.                               CARL W. RAUSCH, ET AL.,                                Defendants, Appellees,                                                                                      ________                        PETER FISHER & BALFOUR HOLDINGS, INC.,                            Counterclaimants, Appellants.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                        [Hon. James L. Watson,* Senior Judge]                                                ____________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             David  M.  Mermell  on  Opposition  to  Motion  to  Vacate  Order             __________________        Dismissing Appeal for appellants, Bio-Vita, Ltd. and Hemo-Innovations,        Ltd.             S. Elaine  McChesney, with  whom Robert  A. Buhlman  and Bingham,             ____________________             __________________      ________        Dana  & Gould were on brief for appellees Biopure Corporation, Biopure        _____________        Associates Limited Partnership and Carl W. Rausch.             James  B. Hicks,  with  whom Kathy  A.  Jorrie, Andrews  &  Kurth             _______________              _________________  _________________        L.L.P., Evan Slavitt  and Hinckley, Allen &  Snyder were on  brief for        ______  ____________      _________________________        appellants,   Peter  Fisher,   Balfour   Holdings,   Inc.  and   Ideal        Environmental Systems, Inc.             Marc S. Palay, with whom Eric W. Bloom, Winston  & Strawn, Jerome             _____________            _____________  _________________  ______        M. Leonard, John D.  Donovan, Jr. and Ropes &  Gray were on brief  for        __________  _____________________     _____________        appellee, Credit Francais International, S.A.                                                                                      ____________________                                  February 29, 1996                                                                                      ____________________                                    ____________________             *Of  the United States  Court of International  Trade, sitting by        designation.                                          2                    CYR, Circuit  Judge.  In this  consolidated, multiparty                    CYR, Circuit  Judge                         ______________          proceeding,  the  district  court entered  two  separate  summary          judgment  orders for  intervenor  CFI.1   The first  judgment was          against  Trainor and awarded CFI  a constructive trust over Trai-          nor's  "choses in action"  against Biopure.   The second judgment          awarded CFI similar relief  against Fisher.  The second  judgment          was  also  favorable to  Biopure.   Each judgment  was certified,          though at  different times,  as final and  immediately appealable          under Fed. R. Civ. P. 54(b).                      The  two  judgments spawned  appeals by  three parties.          Trainor appealed  from the  first judgment, but  then voluntarily          dismissed the appeal.   Fisher noticed an appeal from  the second          judgment, along  with a  purported "cross-appeal" from  the first          judgment,  as did Ideal.   Fisher and Ideal  also moved to vacate          the voluntary dismissal of the Trainor appeal.                     Based on  a thorough  record review, we  conclude that:                                        ____________________               1The various parties are referred to as follows:                          "Fisher"  collectively  designates  Peter   Fisher  and               Balfour  Holdings,  Inc.  ("Balfour"), an  entity  con-               trolled by Fisher.                   "Ideal" designates Ideal Environmental Systems, Inc.                "Trainor" collectively designates William  Trainor, his               daughter Diane Trainor,  and Trainor-controlled  compa-               nies,  Bio-Vita,  Ltd. ("Bio-Vita"),  Hemo-Innovations,               Ltd. and Laurel Mountain Trust ("LMT").                 "Biopure"  collectively designates  Biopure Corporation               and Biopure Associates Limited Partnership ("BALP"), as               well as Carl W. Rausch.                 "CFI" designates Credit Francais International, S.A.                                            3          (1)  the Ideal appeal  was filed late  and, in all  events, Ideal          lacks standing  to appeal;  (2) the  Trainor appeal  was properly          dismissed; (3) the  Fisher "cross-appeal"  brief challenging  the          first judgment  should  be  stricken; and  (4)  the  court  lacks          appellate  jurisdiction over  Fisher's  challenge to  the  second          judgment.                      At the outset, we note that our consideration of these          appeals has been severely  hampered by the failure of  Fisher and          Ideal to conform their  briefs and appendices as required  by the          applicable rules.   Their briefs do not  include necessary juris-          dictional  information, a meaningful  description of the district          court  proceedings, nor  comprehensible  record references.   See                                                                        ___          Fed.  R.  App. P.  28(a)(2)(ii), (a)(4),  (e).   The  first three          volumes of their appendices, approximating 2500 pages, are poorly          indexed,  not  in  chronological  order,  and  not  consecutively          paginated.   See Fed. R. App. P.  30(d).  Prior to oral argument,                       ___          despite  a careful search of the appendices and the eight volumes          of  record originally  designated on  appeal, we  were unable  to          locate   crucial  pleadings  and  exhibits,  including  documents          referenced in appellants' own briefs.                     At oral argument, these  matters were brought to appel-          lants' attention and  we invited an  appropriate motion.   Appel-          lants  later sought and were  granted leave to  file a two-volume          supplemental  appendix  consisting of  an additional  1400 pages.          The  supplement contains many     but not  all     of the missing          documents.   It  also contains,  however, unindexed  documents of                                          4          uncertain relevance, some of  which may not have been  before the          district  court.   Moreover,  appellants did  not  seek leave  to          repaginate and rearrange the first three volumes of  their appen-          dices, obliquely explaining instead that these volumes "have been          used by the Court and  parties for over three months."   And they          failed to revise their  record references to the documents  cited          in their briefs.  See Fed. R. App. P. 30(c).                            ___                    It is  appellants' responsibility to provide  the court          with  intelligible briefs  and appendices  sufficient to  support          their  points on appeal, United  States v. One  Motor Yacht Named                                   ______________    ______________________          Mercury,  527 F.2d 1112, 1113 (1st Cir. 1975), failing which "the          _______          court in  its discretion . .  . may scrutinize the  merits of the          case insofar as the  record permits, or may dismiss the appeal if          the absence of a [record] thwarts intelligent review."   Moore v.                                                                   _____          Murphy, 47  F.3d 8,  10 (1st  Cir.  1995).   Accordingly, in  the          ______          instant  case, wherever  material  uncertainties  result from  an          incomplete  or indecipherable  record  and impede  or affect  our          decision, we resolve such  uncertainties against appellants.  See                                                                        ___          Real v.  Hogan, 828  F.2d  58, 60  (1st Cir.  1987)  ("It is  the          ____     _____          appellant  who must bear the  brunt of an  insufficient record on          appeal.").   With this caveat, we recount the background facts as          best we can.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Although   significant   differences  distinguish   the          parties'  versions of the relevant  facts, we recite the skeletal                                          5          scenario upon which the parties predicate their claims.                      Trainor, the  central figure in the  dispute, allegedly          defrauded all the  other parties.   Fisher entered  into a  joint          venture  with Trainor to invest  in, and develop, Biopure's hemo-          globin-based products.  Each partner was to contribute 50% of the          capital needed to finance their undertaking.  Trainor was respon-          sible for negotiating  a contract  with Biopure.   Fisher was  to          arrange for human testing of a  Biopure product    Hemopure    in          Guatemala.                    Earlier, acting through Ideal as  the nominal borrower,          Trainor had obtained more than $14 million  from CFI in a fraudu-          lent loan transaction.  Although Fisher likewise was  involved in          the CFI loan  transaction, his knowledge of the fraud perpetrated          by  Trainor remains  in  dispute. Trainor  used approximately  $3          million  in "tainted"  CFI loan  proceeds to finance  the Biopure          contract.  These monies have been  traced directly from Trainor's          bank account  to the Biopure  deal.  The  "ownership" of  this $3          million  at the  time it was  invested in Biopure  is a contested          matter as between Fisher and Ideal.                      Allegedly  at  about the  same  time, Trainor  secretly          forced  Fisher out of the Biopure  deal by substituting Bio-Vita,          Trainor's  own company, as the  named party to  the contract with          Biopure.   The contract entitled Trainor to an equity interest in          Biopure and  licensing rights to  the Biopure products.   Biopure          subsequently  rescinded the contract  and awarded  similar equity          and licensing rights to Upjohn.  According to Fisher, by then the                                          6          rights licensed to Upjohn were worth at least $179 million.                                           7                    The District Court Proceedings                    The District Court Proceedings                    ______________________________                    Fisher  sued  Trainor,  and  later  Biopure,  for  $250          million  or a 50%  share in the Biopure  rights ("Fisher v. Trai-                                                            ______    _____          nor").    Trainor  then  sued Biopure.    Biopure  counterclaimed          ___          against  Trainor for fraud, adding Fisher as a third party defen-          dant  in the  Trainor lawsuit  ("Trainor v. Biopure").   Fisher's                                           _______    _______          third  party  answer  included  a  counterclaim  against  Trainor          seeking  to impose a constructive trust upon any Trainor recover-          ies from Biopure.                     The first count in the Fisher v. Trainor complaint  was                                           ______    _______          tried to a jury in November, 1992, resulting in a special verdict          that Trainor  had breached a  binding oral  contract with  Fisher          whereby the two were  to have shared equally in the Biopure deal.          A  mistrial  was declared  later,  however,  because Trainor  and          Fisher were unable to agree on the meaning of the special verdict          and how to proceed with respect to the separate action in Trainor                                                                    _______          v. Biopure.   We denied  Fisher's ensuing petition for  a writ of             _______          mandamus.   In re Peter Fisher  & Balfour Holdings,  Inc., 7 F.3d                      _____________________________________________          218  (Table), No. 93-1914 (1st Cir. Oct. 12, 1993), cert. denied,                                                              ____  ______          114 S. Ct. 1299 (1994).                     CFI then  intervened in the Trainor  v. Biopure action,                                                _______     _______          claiming a constructive  trust over the Trainor and Fisher rights          against  Biopure.  CFI  also demanded judgment  on certain direct          claims against Biopure.                     The  district court first  entered summary judgment for          CFI  and  against Trainor,  imposing  a  constructive trust  upon                                          8          Trainor's  claims against  Biopure based on  findings that:   (1)          Trainor's fraud against  CFI was undisputed,2 (2)  CFI had traced          approximately $3 million of its loan funds through Trainor to the          Biopure investment,  and (3)  all monies  advanced by Trainor  in          furtherance of the Biopure deal were traceable to CFI.                      Fisher did not oppose CFI's motion for summary judgment          against Trainor, but ambiguously purported to  reserve a right to          demand  a share of  Trainor's rights in  the Biopure transaction.          The district court accordingly ruled,                    [T]he  court notes  the existence  of another                    claim to rights  arising from the transaction                    with Biopure . . .  Fisher claims to have had                    a  joint  venture agreement  with  Trainor to                    share in the outcome of the transaction  with                    Biopure . . . [T]his opinion does not address                    his claims and their effect, if any, on CFI's                    constructive trust.          June  28, 1994 Order at 6.   The district court certified the CFI          summary judgment against  Trainor as final under  Rule 54(b), and          judgment entered on July 1, 1994.                      Trainor  filed  a  premature notice  of  appeal shortly          after Fisher moved to amend the judgment pursuant to Fed. R. Civ.          P.  59(e),  notwithstanding  Fisher's  earlier  decision  not  to          interpose  objection  to the  CFI  motion  for summary  judgment.          Contemporaneously,  Fisher filed  a "first  amended counterclaim"          which purported to add Ideal as a party to the pending litigation                                        ____________________               2This  finding  was predicated  in  substantial  part on  an          earlier  Ohio consent judgment for fraud against Trainor.  In the                        _______          same Ohio  action, a default  judgment was entered  against Ideal          and  remains  outstanding, according  to  CFI,  because Ideal  is          defunct.                                          9          for  the first time.  Ideal also  purported to join as a party in          the Rule  59(e) motion  to amend  the earlier  Trainor judgment.3          In  response to  a  motion to  strike  the amended  counterclaim,          Fisher and Ideal formally  moved for leave to amend  it by, inter                                                                      _____          alia,  "adding Ideal  as a  party plaintiff."   Finally,  CFI and          ____          Biopure moved for summary judgment against Fisher.                    On  November  22, 1994,  the  district  court issued  a          memorandum  opinion  denying  the  Rule 59(e)  motion  to  amend,          striking  as untimely  the first  amended counterclaim  which had          attempted to insinuate Ideal as a party to the case, and granting          the Biopure and CFI motions  for summary judgment against Fisher.          Based  on its conclusion that the only claims Fisher had asserted          against  Biopure  were  those  Fisher and  Trainor  jointly  held          against Biopure, the district  court ruled:  "there is  no ground          whatsoever in law or equity that gives Fisher a right to share in          the benefits of  his co-venturer's  fraud to the  detriment of  a          prior innocent party."                     The  district  court's  memorandum order  provides  the          following  explanation for  its decision to  enter a  second Rule          54(b)  certification,  covering  the  summary  judgments  against          Fisher:                                         ____________________               3The  docket sheets list two Rule 59(e) motions filed on the          same day, one  by Ideal and one by Fisher, but we can locate only          one such motion in the appendix and record.  It  purports to have          been  "submitted" by both Fisher and Ideal, although it is titled          "Ideal's Motion  to Alter or  Amend Judgment."   Fisher complains          that  the district court  never ruled on  his motion.   Given the          record before us, however,  we conclude that there was  a single,          joint  motion, which was denied  by the court.   See accompanying                                                           ___          text.                                          10                    In the  opinion of the court  the granting of                    these motions for  summary judgment is likely                    to lead to the simplification of the case and                    the elimination of a  future trial.  For this                    reason the court  finds it advisable to  make                    these judgments  final under Rule 54(b).  The                    court finds  no  just reason  to delay  final                    judgment on these matters.          Nov. 22, 1994 Order at 13.                    On December 6, 1994, a "separate document," incorporat-          ing the second Rule  54(b) judgment, was entered on  the district          court docket:                      In accordance with  this Court's  Memorandum,                    Opinion  and  Order entered  on  November 22,                    1994, IT IS HEREBY ORDERED:                    Judgment is  entered in favor of  Biopure and                    Credit  Francais International,  S.A. ("CFI")                    as  against Balfour Holdings,  Inc. and Peter                    Fisher.            By supplementary order under Rule 60(a), the district court noted          the pendency  of additional,  unspecified claims,  but reiterated          its  intention  to certify  the  second Rule  54(b)  judgment for          immediate  appeal "in the interests of  justice."  As best we can          glean from the record,  at that time all claims  remained pending                                               ___ ______  ________ _______          (with  CFI  substituted as  plaintiff  on some)  and  all parties                                                           ___  ___ _______          remained in the case on other claims.                     The Appeals                    The Appeals                    ___________                    Following  the  denial of  the  Rule  59(e) motions  to          amend,  Trainor  reinstated  his  appeal from  the  July  1, 1994          judgment (No. 94-1854).  See Fed. R. App. P. 4(a)(4).  On January                                   ___          3, 1995, Fisher  and Ideal each  filed a notice  of appeal.   The          Fisher notice,  a single  document titled "Notice  of Appeal  and                                          11          Cross-Appeal," purported to notice an appeal from the December  6          judgment and a  "cross-appeal" from  the July 1  judgment.4   The          Ideal notice, identically titled, likewise purported to notice an          appeal from the December 6 judgment and a "cross-appeal" from the          July 1  judgment,  as well  as  another "cross-appeal"  from  the          December 6  judgment, identified  only as  taken  in response  to                                                               _          Fisher's notice of appeal.  The Fisher notice was docketed as No.          95-1092;  the Ideal notice as  95-1091.  Trainor  and CFI jointly          moved  for voluntary dismissal of the Trainor appeal on March 20,          1995, and the motion was granted the same day.   Fisher and Ideal          moved to vacate the voluntary dismissal.5                    I.  Standing to Appeal (No. 95-1091)                    I.  Standing to Appeal (No. 95-1091)                        ________________________________                    Notwithstanding  the wording  of its notice  of appeal,          Ideal  has attempted  to  join in  the  Fisher challenge  to  two          district  court orders:  the  denial of the  Rule 59(e) motion to          amend the first judgment  (referred to as a  "cross-appeal"), and          the denial of the motion to amend the Fisher counterclaim.  Ideal          was not a party of record  before the district court.  Its stand-                                        ____________________               4The  term "cross-appeal" is a misnomer in this context.  It          normally denotes an  appeal by  an initial  appellee against  the          initial appellant from an  order or decision entered in  favor of          the initial  appellant. See  9 James Wm.  Moore, Moore's  Federal                                  ___                      ________________          Practice   204.11[1] (1995).  Fisher and  Ideal were not named as          ________          appellees  in the  Trainor  appeal, and  their so-called  "cross-          appeals,"  as a logical  matter, were  separate appeals  from the                                                 ________          first  judgment in favor of appellee CFI, not the original appel-          lant      Trainor.    Ideal's additional  "cross-appeal"  against          Fisher is simply an enigma.               5We reserved decision on  this motion pending oral argument.          Fisher and Ideal then  filed an opaque motion to  consolidate the          dismissed and pending appeals, which we denied.                                          12          ing  to  appeal thus  turns  on whether  its  attempted appellate          challenges are excepted  from the general rule  that only parties          to the  district court proceedings  may appeal  a district  court          judgment.   See United States  v. Little Joe  Trawlers, Inc., 780                      ___ _____________     __________________________          F.2d 158, 161 (1st Cir. 1986).  By itself, the Ideal challenge to          the denial of the Rule 59(e) motion, briefed separately under the          rubric "cross-appeal," appears to come within no exception to the          general rule.                     Nonetheless, the denial of  Ideal's motion to amend the          Fisher counterclaim  by, inter  alia,  "adding Ideal  as a  party                                   _____  ____          plaintiff,"  may have been an  appealable order.   As the nominal          borrower of the funds  loaned by CFI,  Ideal claims that it,  not          CFI,  was entitled to assert a constructive trust over the equity          claims acquired  by  Trainor when  he wrongly  diverted the  loan          proceeds  to Biopure.6  Ideal  thus asserts an  interest at least          superficially  akin  to those  cognizable under  Fed. R.  Civ. P.          24(a)(2).7                      An order  denying a  motion to  intervene of  right is                                        ____________________               6There  are no  district court  findings which  would enable          confident determinations  as to  who controlled Ideal  at various          material times.  Moreover,  the record suggests that Ideal  was a          shell, wholly owned and controlled by Trainor, at the time of the          CFI loan.  During the CFI  loan transaction ("in or about 1989"),          however, Fisher allegedly gained control of Ideal.                 7See supra  note 6.  Ideal  purports to be a  bona fide pur-                ___ _____          chaser of the CFI loan  proceeds, so as to cut off  any right CFI          might  have  to "trace"  its loan  funds  into the  Biopure deal.          Ideal claims  that, through  Fisher, it innocently  acquiesced in          the CFI loan arranged by Trainor,  then innocently redirected the          loan  proceeds to Trainor (allegedly for the purchase of a worth-          less  landfill).  Trainor used  the money to  finance the Biopure          deal.                                           13          immediately appealable, without the  need for certification under          ___________          Rule 54(b).   Flynn  v. Hubbard,  782 F.2d  1084, 1086 (1st  Cir.                        _____     _______          1986); 6 James Wm. Moore et al., Moore's Federal Practice   54.38                                           ________________________          n.4 (1995).   The appeal cannot  be kept in  reserve; it must  be          taken  within thirty days  of the entry  of the order,  or not at          all.   See   B.H.  by Pierce  v. Murphy, 984  F.2d 196,  199 (7th                 ___   _______________     ______          Cir.),  cert. denied, 113 S. Ct. 2930  (1993).  As Ideal filed no                  ____________          timely notice of  appeal from the denial of its  motion to inter-          vene,  we lack  jurisdiction  over its  appeal.   The  thirty-day          appeal period extended from the date of entry (November 28, 1994)          of the November 22, 1994, order denying intervention, see Fed. R.                                                                ___          App.  P. 4(a)(1),8 and  Ideal did not  file its notice  of appeal                                  _____          until January 3, 1995.9            Appeals  from the  First Judg-                                             Appeals  from the  First Judg-                                             ______________________________                                        ____________________               8The entry  of the  Rule  54(b) judgment  against Fisher  on          December  6, 1994,  did not  enlarge the  appeal period,  for two          reasons.  The  judgment did not include Ideal's claims and, as an          exception to Rule 54(b),  the denial of intervention  was appeal-          able  without an "express direction for the entry of judgment" on          a separate document.  Cf. Willhauck v. Halpin, 953  F.2d 689, 701                                ___ _________    ______          (1st Cir. 1991).   Since Ideal sought intervention in  the still-          pending litigation, and  not relief from a  final judgment, there          is  no reason to consider further the applicability of the "sepa-          rate document" rule  in relation  to the denial  of this  motion.          Compare infra note 12.          _______ _____               9Ideal did not move  for an extension of time  to appeal the          denial  of its  motion to  intervene/amend the  counterclaim, al-          though it  joined Fisher in a  motion to extend the  time to file          the so-called "cross-appeal" from the first judgment.  The latter          request  was denied for failure  to show good  cause or excusable          neglect.                We  simply add  that the  district court  did not  abuse its          discretion in denying the  motion to amend/intervene as untimely.          See  Conservation Law Found. v.  Mosbacher, 966 F.2d  39, 41 (1st          ___  _______________________     _________          Cir.  1992).  The case had been  pending since 1990, the CFI loan          transaction had been addressed in pleadings dating back to April,          1991,  and CFI  had  moved to  intervene  ten months  before  the          attempted  counterclaim.   The court  rightly explained  that "so                                          14                                             ment:   the  Fisher "Cross-Ap-                                             ment:   the  Fisher "Cross-Ap-                                             ______________________________                                             peal"  and the  Voluntary Dis-                                             peal"  and the  Voluntary Dis-                                             ______________________________                                             missal of the Trainor Appeal                                             missal of the Trainor Appeal                                             ____________________________                    Fisher  contends  that the  voluntary dismissal  of the          Trainor  appeal  should be  vacated,  as a  collusive  attempt to          foreclose his so-called "cross-appeal" from the same judgment.10-            CFI and Trainor respond  that Fisher has no standing  to oppose          dismissal of the  Trainor appeal,  nor to appeal  from the  first          judgment  in his own right,  because he elected  initially not to          contest CFI's  motion against  Trainor below.11   Fisher's stand-                                        ____________________          much blood  has passed  under the  bridge" that  it would  work a          "perversion" of the liberal amendment policy of Rule 15 to permit          Ideal to introduce a new claim so late in the proceedings.  Other          "timeliness"  criteria weighed  against  Ideal as  well.   First,          appellees would  have been  unfairly prejudiced  had intervention          been allowed.  Second, Ideal can point to no clear probability of          success on the merits, since its independence from Trainor during          the relevant time period, as well as Ideal's capacity to sue, are          open to serious  question.  And,  third, no "exceptional  circum-          stances"  are suggested.   See  Banco Popular  de Puerto  Rico v.                                     ___  ______________________________          Greenblatt, 964 F.2d 1227, 1231-34 (1st Cir. 1992) (setting forth          __________          factors to  be considered in determining  timeliness of interven-          tion).   Thus, the district  court properly denied  the motion to          amend and Ideal lacked standing to appeal.                10As already noted, see supra pp. 12-13, note 9, Ideal lacks                                   ___ _____          standing to appeal either judgment.  Fisher argues that he should          have  been given prior notice and an opportunity to challenge the          dismissal.  Although we agree that the better practice is to give          notice to all "cross-appellants"  prior to any voluntary dismiss-          al, unless the  cross-appellant has joined  in an agreement  that          includes  the payment  of costs,  see Fed.  R. App. P.  42(b), in                                            ___          these circumstances  neither Fisher  nor Ideal was  prejudiced by          the failure to provide separate notice to Fisher.  See supra note                                                             ___ _____          4 and infra pp. 14-18.                _____               11We note, moreover, that Fisher's ambiguous response to the          CFI motion in the  district court implicates a separate issue.  A          party may have standing to appeal, yet lose because he has waived          or  forfeited the arguments  sought to be raised  on appeal.  Cf.                                                                        ___          Dopp v. HTP  Corp., 947 F.2d  506, 512 (1st  Cir. 1991)  (holding          ____    __________          that  a defendant  who was  dismissed from the  case for  lack of                                      _________          personal jurisdiction had no standing to appeal judgments entered                                          15          ing to appeal turns  on his status  before the district court  at          the time the challenged  judgment was entered, and the  extent to          which  he is "aggrieved"  by the judgment.   See I.C.C. v. Holmes                                                       ___ ______    ______          Transp. Inc., 983 F.2d 1122, 1125 n.4 (1st Cir. 1993); Little Joe          ____________                                           __________          Trawlers, Inc., 780  F.2d at  161; 9 Moore's  Federal Practice             ______________                       _________________________          203.06.   Fisher  was a  party of  record at  the time  the first          judgment  was entered.  Arguably, at least, he was "aggrieved" by          the  judgment since it entitled CFI alone to a constructive trust                                              _____          over the  Trainor claims against  Biopure    relief  which Fisher          had  sought  for himself  in  his  counterclaim against  Trainor.          Thus,  we conclude that Fisher  has standing to  appeal the first          judgment  and, for present purposes, we  assume arguendo that the                                                          ________          appeal is not time-barred.12                     A motion for voluntary dismissal of an appeal should be          denied only "in the  interest of justice or fairness."   American                                                                   ________                                        ____________________          after it voluntarily absented itself from the proceedings).                 12The parties have  assumed that the appeal  period ran from          the  November 22 decision  denying his  Rule 59(e)  motion, hence          that  the January 3 notice of appeal  was late.  They disagree as          to whether  the timeliness  of a cross-appeal  is jurisdictional,          and, if not  jurisdictional, as to  the effect of  the denial  of          appellants' motion to enlarge the time to file a cross-appeal.                  However, the  "separate document" rule does  apply to orders                                                      ____  _____          denying Rule  59(e) motions.   The lengthy  November 22  district          court opinion  contained numerous orders, such  that, arguably at          least, the Fisher appeal period ran from the December  6 entry of          judgment  against him  in  a separate  document.   See  Fiore  v.                                                             ___  _____          Washington County Community Mental Health Ctr., 960 F.2d 229, 235          ______________________________________________          n.9 (1st Cir. 1992) (en banc); see also RR Village Ass'n, Inc. v.                                         ________ ______________________          Denver Sewer Corp., 826 F.2d 1197, 1201 (2d Cir. 1987) (words "so          __________________          ordered" at end of a 14-page opinion denying Rule 59(e) motion do          not satisfy "separate document"  requirement).  Since we conclude          that Fisher failed  to prosecute his "cross-appeal," we  need not          dwell on these other matters.                                            16          Auto. Mfrs. Ass'n v. Commissioner, Massachusetts DEP, 31 F.3d 18,          _________________    _______________________________          22 (1st Cir. 1994).  We discern no legitimate basis for disallow-          ing the motion to withdraw the Trainor appeal.                     Withdrawal of the Trainor appeal does not terminate the          Fisher  appeal  from the  same judgment,  nor  in any  way impede          Fisher's ability  to protect his own interests before this court.          It became clear at oral argument that Fisher's misapprehension in          this regard was driven by an  erroneous assumption on the part of          counsel that  the "cross-appeal" bore  the same docket  number as          the  Trainor appeal.   But  the  docket sheets,  as  well as  the          appellate  rules, see Fed. R.  App. P. 12(a)  (requiring clerk to                            ___          docket  each notice  of  appeal when  received);  see also  First                                                            ___ ____          Circuit Internal Operating Procedures VI.A.2 (1992) ("in the case          of cross-appeals, the appeals are treated as two separate appeals          for briefing  purposes"), indicate otherwise.13   It appears that          this misconception also contributed to Fisher's decision to offer          for filing, together with  Ideal, a late so-called "cross-appeal"          brief challenging the first  judgment, and to affix to  this late          filing the  docket number  assigned to Trainor's  previously dis-          missed  appeal.   Had  Fisher  consulted  the docket  sheets  and                                        ____________________               13The parties did not  notify the Clerk that they  wished to          proceed under Fed. R. App. P. 28(h).   See First Circuit Internal                                                 ___          Operating Procedure VI.A.2. The  docket sheets identify Fisher as          the "appellant and cross-claimant" in  appeal no. 95-1092 --  the          number  assigned  to his  "notice  of  appeal and  cross-appeal."          (Ideal is identified the  same way in appeal  no. 95-1091).   The          Trainor docket sheet cross-references Fisher's and Ideal's appeal          numbers,  respectively labeling  the Fisher  appeal as  a "cross-          appeal" and the Ideal appeal as a "companion case."  The rules do          not  allow a party  simply to assume  as his own  a docket number          previously assigned to an appeal taken by another party.                                           17          complied with the briefing schedule issued by the Clerk, he could          have offered  a complete initial  brief some three  weeks earlier          bearing  the  pending  docket  number assigned  to  his  singular          "notice of appeal and cross-appeal."                     We must  decide, therefore, whether  Fisher may proceed          with his appellate challenge  to the first judgment on  the basis          of his  untimely and misnumbered "cross-appeal"  brief.  Although          such mistakes  are  not jurisdictional  under  Rule 3(a),  see  9                                                                     ___          Moore's Federal  Practice    203.12 (1995),  Fisher did  not seek          _________________________          discretionary  relief from  his  errors and  omissions (e.g.,  by                                                                  ____          requesting  leave to file a  late supplement to  the brief timely          filed in number 95-1092).   Instead, he filed two  opaque motions          claiming that wrongdoing  by other parties relating to the volun-          tary dismissal of the Trainor appeal had hampered his prosecution          of  the cross-appeal.  Appellees spent  time responding  to those          motions and  court time was  devoted to  considering them.   As a          further consequence,  there was  no occasion to  issue a  revised          briefing schedule,  and appellees  have had  no occasion  to file          briefs in response.  At this stage, therefore, it would be unfair          to  foster  further  delay  and expense  by  countenancing  these          practices at the expense of innocent appellees.                      Accordingly,  we decline  to  relieve  Fisher of  these          errors  and omissions, and  we direct  that his  so-called cross-          appeal  brief be stricken from the record.   Cf. United States v.                                                       ___ _____________          Hanks,  24  F.3d 1235,  1238-39  (10th Cir.  1994)  (declining to          _____          relieve  appellant of  nonjurisdictional  delay in  perfecting an                                          18          appeal  where appellant  corrected  the  irregularity but  caused          additional  prejudice and  unnecessary consumption  of court  re-          sources by failing to give notice of the  correction).  As Fisher          failed  to take proper steps to pursue his challenge to the first          judgment,  we  turn our  attention to  the  final question:   the          appealability of the second Rule 54(b) judgment entered below.                     The Fisher Appeal from the Second Judgment:  Rule 54(b)                    The Fisher Appeal from the Second Judgment:  Rule 54(b)                    _______________________________________________________                    Certification                    Certification                    _____________                    Rule  54(b) permits  entry of  a final  judgment  as to          fewer  than all claims  or parties upon  an express determination          that  there is "no just  reason for delay"  in entering judgment.          Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 579 (1st Cir.          _______________    __________________          1994).  Although no party has challenged these Rule 54(b) certif-          ications, we are  "duty bound to take the matter  up sua sponte,"                                                               ___ ______          since "it  implicates the  scope of our  appellate jurisdiction."          Spiegel v. Trustees of Tufts College,  843 F.2d 38, 43 (1st  Cir.          _______    _________________________          1988).  The required jurisdictional analysis comprises two steps.                    First,  we  inquire  whether  the  trial  court  action          underlying the judgment disposed  of all the rights and  liabili-          ties  of at least one party  as to at least one  claim.  See Cur-                                                                   ___ ____          tiss-Wright Corp. v. General Elec. Co.,  446 U.S. 1, 7 (1980); 10          _________________    _________________          Charles A. Wright  et al., Federal Practice  and Procedure: Civil                                     ______________________________________          2d   2656  n.9,   2657  n.17 (2d Ed. 1983  & Supp. 1995)  (citing          __          cases);  6 Moore's  Federal Practice    54.34[2-2]  n. 4  (citing                     _________________________          cases); cf.  Maldonado-Denis, 23 F.3d  at 580 (the  ruling should                  ___  _______________          dispose  "completely either of all  claims against a given defen-                                          19          dant  or  of some  discrete substantive  claim  or set  of claims          against the  defendants generally").   The first  requirement was          met here  with respect to  the summary judgments  entered against          Fisher and in favor  of Biopure and CFI.   Although CFI's deriva-          tive  rights  against Biopure  remain  unresolved,  as to  Fisher          nothing remained but to enter judgment.                      Second, we must examine the sufficiency of the district          court's assessments of (1) any interrelationship or overlap among          the various  legal and factual  issues involved in  the dismissed          and  the pending  claims, and (2)  any equities  and efficiencies          implicated by the requested piecemeal review.                     In its  critical role  as a Rule  54(b) "dis-                    patcher"  . . . the district court is to con-                    sider the strong judicial  policy disfavoring                              ______ ________  ______ ___________                    piecemeal appellate review . . . by carefully                    _________ _________ ______                    comparing the dismissed and the unadjudicated                    claims for indications of substantial overlap                    -- to ensure that  the appellate court is not                    confronted in successive appeals  with common                    issues  of law  or fact  to the  detriment of                    judicial efficiency.            Kersey v.  Dennison Mfg.  Co., 3 F.3d  482, 487  (1st Cir.  1993)          ______     __________________          (citations omitted)  (emphasis added).   When the  district court          provides  a  sufficient  written  statement of  the  grounds  for          certification, as it should,  "we normally accord its discretion-          ary decision `substantial deference' and will dismiss for lack of                       `                     '          appellate  jurisdiction only  if  the court's  certification  was          `clearly unreasonable.'" Id. at  486 (citation omitted); see also          `                     '  ___                             ___ ____          Curtiss-Wright, 446 U.S.  at 10  ("The court of  appeals must  of          ______________          course,  scrutinize  the  district  court's  evaluation  of  such          factors as  the interrelationship  of the claims  . . .  But once                                          20          such juridical concerns have been met, the discretionary judgment                                               ,          of the district court should be given substantial deference.")                     Although it is clear  from the Rule 54(b) certification          that  the district  court  anticipated that  an immediate  appeal          might avoid  a trial, this  ground "is  rarely, if ever,  a self-          sufficient basis for a Rule 54(b) certification."  Kersey, 3 F.3d                                                             ______          at 488; see also Spiegel, 843 F.2d at 43 n.4  (cautioning that "a                  ___ ____ _______          concise  list of  reasons will  likely  be needed"  to facilitate          appellate  understanding of  the  certification  decision).   The          district  court  certification  contained  no evaluation  of  the          interdependence  of dismissed and  pending claims, no identifica-          tion or analysis  of the  remaining claims, and  no reference  to          "compelling  evidence  that the  equities  favor early  appellate          review."  Id.  Consequently, we have culled  the entire record on                    __                                     ______ ______          appeal for  any "compelling considerations favoring  the entry of          an earlier than usual  judgment," such as might warrant  a piece-          meal  appellate  review notwithstanding  the absence  of specific          findings.  Feinstein v.  Resolution Trust Corp., 942 F.2d  34, 40                     _________     ______________________          (1st Cir. 1991)  (quoting Spiegel, 843 F.2d at 43  n.4); see also                                    _______                        ___ ____          Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 936 (1st  Cir. 1995)          ______    ____________________          (nothing is gained by remanding a  case for entry of a  properly-          crafted  judgment where  in due  course the  same issues  will be          returned to the appellate court).                     At the  time the  appeal was  taken  from the  judgment          against  Fisher,  the only  appropriate  consideration apparently          favoring Rule 54(b) certification was the possibility that it (in                                          21          combination with the earlier judgment against Trainor) might prod          the parties to settle their differences, particularly in light of          the fact that the  district court rulings effectively substituted          CFI as the  sole plaintiff  with respect to  the purported  joint          venturers' claims against Biopure.                      Still in the case,  however, were all the same  claims,          with  CFI as  a  derivative plaintiff  on  some.   Moreover,  all          parties remained  in the  case in connection  with other  claims.          "Rule  54(b)  certification  is  particularly  suspect  when  the          contestants on appeal remain, simultaneously, contestants below."          Kersey, 3  F.3d at  487 (citations  omitted); cf.  Feinstein, 942          ______                                        ___  _________          F.2d at 40 (upholding a district court certification which lacked          specific findings,  but where  the judgment  had disposed of  all                                                                        ___          claims against all six appellees).                          ___                    Settlements during  the pendency of the  present appeal          did winnow  out some claims.   Trainor settled with CFI  and Bio-          pure.  Appellees suggest  that there will be a  further reduction          in the number  of pending  claims should we  affirm the  district          court  judgment.  CFI and Biopure represent that they have condi-                                                                     ______          tionally settled CFI's derivative  claims between themselves.  At          ________          oral argument, all parties indicated that they would likely forgo          their  remaining claims  were the  court to  affirm  the judgment          against  Fisher.  These  prospects nonetheless do  not affect the          required  threshold  jurisdictional analysis:   "To  entertain an          early appeal just because . . . a [particular] ruling . . . might                                                                      _____          transpire and  might expedite  a particular [party's]  case would                         _____                                          22          defoliate Rule  54(b)'s protective copse."  Spiegel,  843 F.2d at                                                      _______          46.                    As we scan the  present landscape, the following claims          remain  pending before the district court.  In Fisher v. Trainor,                                                         ______    _______          all Fisher claims against Trainor  remain pending.14  In  Trainor                                                                    _______          v. Biopure, the following  remain pending:  (1) Biopure's  third-             _______          party claims against Fisher,  (2) the Fisher counterclaim against          Trainor,15  and (3)  CFI's derivative  and direct  claims against          Biopure.  Thus, all claims against Fisher remain in the case, and          all parties as well.                    There  is  a  substantial  interdependence  and overlap          between pending and dismissed claims.  In Trainor v. Biopure, the                                                    _______    _______          pending  CFI  derivative  claims  against  Biopure  are  entirely          dependent  on the validity  and value  of the  constructive trust          over  the Fisher  claims.   In addition,  there is  a problematic          factual  overlap as  between the  pending Biopure  claims against          Fisher (for violations of RICO, Mass. Gen. L. ch. 93A, securities          fraud, common  law fraud and  declaratory judgment) and  the con-          structive  trust,  declaratory  judgment  and  unjust  enrichment          claims resolved favorably to CFI.                                         ____________________               14Although we  consider  each of  the  consolidated  actions          separately in order  to expedite  our analysis, we  note as  well          that  there are  obvious  overlaps among  the  dismissed and  the          pending claims, which cut across these consolidated actions.  Cf.                                    ______                              ___          FDIC v. Caledonia Inv. Corp., 862 F.2d 378, 381 (1st Cir. 1988).          ____    ____________________               15Apparently, no judgment has  been entered on this counter-          claim,  although the  district  court denied  Fisher's motion  to          expand and amend it, and the  logic of the two judgments in favor          of CFI may moot it.  An  earlier motion by Trainor to dismiss the          counterclaim also appears to remain pending.                                          23                    Biopure  alleges  that  Fisher,  as  well  as  Trainor,          defrauded CFI in  connection with the CFI  loan transaction; that          Fisher misrepresented or failed to disclose that the funds he and          Trainor invested  in Biopure had been  fraudulently obtained from          CFI; and that their investment in Biopure was but one in a series          of  fraudulent  transactions jointly  undertaken  by Trainor  and          Fisher.    Similarly, although  CFI  charged  Trainor alone  with          actual  fraud, it alleged that Fisher "knew or should have known"          that the funds invested in Biopure had been fraudulently obtained          from CFI, without consideration.                     The overlapping  issues     the scope  of the  fraud on          CFI, and  Fisher's knowledge, role, and  legal responsibility for          it, if any    "bid fair to form an essential  focus of successive          appeals." Kersey, 3 F.3d at 487.  CFI and Biopure prevailed below                    ______          by proffering  factual concessions  solely for purposes  of their                                              ______ ___ ________  __ _____          summary judgment motions.  Their concessions    which have varied          _______ ________ _______          somewhat  on appeal     raise  ambiguous inferences  and actually          conflict in  important respects.   CFI  offers to  stipulate that          Fisher  had  no actual  knowledge of  the  tainted source  of the          funds,  and that Trainor's fraud  on CFI was  independent of, and          committed  prior to, the formation of the joint venture.  Biopure          tenders  similar  factual  concessions based  on  fragments  from          Fisher's  pleadings, but  does  not assume  that Trainor's  prior          fraud was independent of  the joint venture.  Both  parties offer          to stipulate that Trainor may have defrauded Fisher as well.                      CFI  argues that  under Massachusetts  partnership law,                                          24          Mass.  Gen. L.  ch.  108A,     12, and  equitable  restitutionary          principles, it is entitled to  a constructive trust over Fisher's          claims without  regard to Fisher's  state of mind,  because Trai-          nor's independently-acquired guilty knowledge is to  be "imputed"          automatically to the Trainor-Fisher joint venture.   On the other          hand, Biopure apparently assumes  that the joint venture must  be          "liable"  for  Trainor's fraud,  or if  not  the fraud,  then the          "fraudulent  investment."   See  Mass. Gen.  L.  ch. 108A,    13.                                      ___          Their theories are problematic.                     The  determinative equity-based principles at work here          are highly  fact-sensitive.16  See Restatement  (Second) of Agen-                                         ___          cy     274 cmts. b  & c, 282 cmts.  h & i  (1958); Restatement of          Restitution     172-74, 202, 203,  208(3), 210-213, 215 (1937); 1          Alan  R. Bromberg  & Larry  E. Ribstein,  Bromberg &  Ribstein on                                                    _______________________          Partnership     4.06 & nn.  13-16, 4.07 &  nn. 23, 27-30  (1991 &          ___________          Supp. 1994);  see also  Loring v.  Baker, 329  Mass. 63,  65, 106                        ___ ____  ______     _____          N.E.2d 434, 436-37 (1952); New England Trust Co. v. Farr, 57 F.2d                                     _____________________    ____                                        ____________________               16The district court made no express choice-of-law  determi-          nation, but  assumed, as do  the parties, that  Massachusetts law          governs  the partnership issues (the Trainor-Fisher joint venture          allegedly  was formed in Massachusetts).  We are less clear as to          what  law the court utilized in  determining the remedy available          to CFI  for  the fraudulent  loan  transaction.   Appellees  rely          primarily  on federal cases which  apply the law  of states other          than  the  forum.   See Federal  Deposit  Ins. Corp.  v. Braemoor                              ___ ____________________________     ________          Assocs., 686  F.2d  550 (7th  Cir.  1982) (Illinois  law),  cert.          _______                                                     ____          denied, 461 U.S. 927 (1983); Higgins v. Shenango Pottery Co., 256          ______                       _______    ____________________          F.2d  504 and  279 F.2d  46 (3d  Cir.) (Pennsylvania  law), cert.                                                                      ____          denied, 364  U.S. 899 (1960).  As we need not resolve the choice-          ______          of-law question, we intimate no  opinion.  We note only that  the          cited  rulings likewise  were highly  fact-dependent, and  are of          little  assistance given  the  ambiguities and  conflicts in  the          hypothesized facts presented in the instant case.           ____________                                          25          103,  111 (1st  Cir.) (applying  Massachusetts partnership  law),          cert. denied, 287 U.S. 612 (1932).            ____  ______                    The crux of the Rule 54(b) certification problem in the          present  context  is that  any  substantive ruling  based  on the          present record  would require that we  determine the hypothetical                                                               ____________          reach of the governing partnership law and restitutionary princi-          ples.  The materiality of the conflicting stipulations would have          to be  addressed and their limitations  and ambiguities resolved.          Meanwhile, Fisher's knowledge of  the fraud and the scope  of the          Trainor-Fisher  joint  venture would  remain  crucial, unresolved          considerations  underlying the Biopure  claims.   Subsequent dis-          trict  court  proceedings  could  very  well  render  superfluous          whatever interim appellate resolution might be predicated on this          fragile  hypothetical foundation,  and  another  panel  could  be          required to  revisit the  central question of  Fisher's knowledge          and participation in the alleged scam.   Such piecemeal appellate          exercises sacrifice judicial  efficiency and risk serious,  unin-          tended res judicata effects.   See Kersey, 3 F.3d at  487 (citing                 ___ ________            ___ ______          cases abjuring such risks).                     On  the face  of  the pleadings  in  Fisher v.  Trainor                                                         ______     _______          alone,  there appears  "so substantial  a prospect  of contextual          overlap" between Fisher's dismissed  claims (against Biopure) and          his  unadjudicated claims  (against  Trainor),  as to  "counsel[]          strongly against Rule 54(b) certification."  Id.  The crux of the                                                       __          Fisher claims against both Trainor and Biopure for unjust enrich-          ment (Count  Five), and  against Biopure for  promissory estoppel                                          26          (Count Eight),  is that  Fisher contributed substantial  time and          expertise ("sweat  equity") to the  venture, resulting in  a sub-          stantial increase in the  value of the Biopure stock  and product          licensing  rights.  In addition,  the Fisher "breach of contract"          claim against Biopure, and the "interference with contract" claim          against Trainor, rest on identical factual allegations, viz., the          "switch" in contracting parties.  See supra p. 6.                                            ___ _____                    These overlapping  issues were not focused  upon in the          district court opinion granting  summary judgment to Biopure (and          a constructive trust to CFI).   The court presumably was able  to          disregard the  overlaps largely  because Fisher failed  to oppose          the motions  for summary  judgment on the  ground that  he had  a          right to recover for his "sweat equity" contributions.  Thus, the          success of  the  motions for  summary judgment  depended upon  an          assumption that Fisher's only  investment in Biopure consisted of                                   ____          funds fraudulently  obtained from CFI.   Notwithstanding the fact          that Fisher's "sweat  equity" was  a focus of  his complaint  and          that there  was competent testimonial evidence  of his efforts,17          he did not counter with the claim that he (or  the joint venture)          had contributed untainted  value which enhanced the  worth of the                          __          Biopure stock  and licensing rights.   Instead, he  argued simply                                        ____________________               17Of  course, it was for Fisher to generate a material issue          of   fact that might enable  him, and not merely  CFI, to recover          from  Biopure  for  unjust  enrichment and  promissory  estoppel.          Fisher adverted to his "sweat equity" only as "consideration" for          a loan which Trainor allegedly promised Fisher.  See accompanying                                                           ___          text.   Passing mention of facts from  which a theory might later          be  carved  does not  place  an  undeveloped  argument in  issue.          United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992).             _____________    _____                                          27          that he was a bona fide purchaser of the loan funds  fraudulently          obtained from CFI by Trainor, on the theory that Trainor had made          a false promise to lend the CFI monies to Fisher.                      By offering  his "sweat equity" theory  of recovery for          the  first time at  oral argument  on appeal,  Fisher essentially          urged that  we relieve him  of his district court  waiver.18  But          the Rule  54(b) safeguards  against inefficient piecemeal  review          would be severely undermined  were we to attempt to  speculate at          this  juncture as  to  the labrynthine  consequences of  Fisher's          failure  to assert this theory  before the district  court in the          first instance.   Moreover, an argument "surfacing  for the first          time on appeal" may be excepted from the raise-or-waive rule only          if it  is  "so  compelling as  virtually  to  insure  appellant's          success,  and a gross  miscarriage of  justice would  result from          [the] failure to  address it."   American Auto.  Mfrs. Ass'n,  31                                           ___________________________          F.3d at  26; see also  Johnston v.  Holiday Inns, Inc.,  595 F.2d                       ___ ____  ________     __________________          890, 893 (1st Cir. 1979) (waiver rule is relaxed only in "horren-          dous cases" where a gross miscarriage would occur).                      A fortiori,  we think  it  clear that  the waiver  rule                    _ ________          should be rigorously  applied to interlocutory  appeals certified          pursuant to Rule  54(b).   The strength of  the forfeited  Fisher                                        ____________________               18Fisher made reference to  this theory in an "introductory"          comment to  his reply brief as  well.  Arguments  omitted from an          opening  brief  on  appeal ordinarily  are  deemed  waived.   See                                                                        ___          Pignons S.A. de  Mecanique v. Polaroid Corp., 701 F.2d  1, 3 (1st          __________________________    ______________          Cir. 1983) ("An appellee is entitled to rely on the content of an          appellant's  brief for  the  scope of  the  issues appealed,  and          appellant  generally may not preserve a claim merely by referring          to it in a reply brief or at oral argument.").                                          28          theory  can  be assessed  only by  focusing  on the  core factual          allegations underlying both the dismissed and the pending claims,          as well  as the closely  intertwined legal  issues governing  any          remedy.   See and compare, e.g., Meehan v. Shaughnessy, 404 Mass.                    _____________________  ______    ___________          419, 445-46, 535 N.E.2d 1255, 1270 (1989)  (award of constructive          trust  based on  usurped partnership  opportunities may  entail a          proportionate assessment of profits  generated by each  partner's          efforts); Provencher v. Berman, 699 F.2d 568, 572 (1st Cir. 1983)                    __________    ______          (allowing non-partner wrongdoers to retain proportionate share of          property held in constructive  trust for another where wrongdoers          had  contributed value to the  property in the  form of untainted                                                                  __          personal labor).                     The   "gross  miscarriage  of  justice"  test  likewise          requires consideration  of interrelated  factual and legal  theo-          ries.  Typically, a  miscarriage of justice may be  shown where a          litigant  would suffer  grave personal  harm, such  as a  loss of          liberty or domicile, see  American Auto. Mfrs. Ass'n, 31  F.3d at                               ___  __________________________          26 (citations), or where the  issue involves sensitive matters of          federalism or the public  interest.  See Capitol Indem.  Corp. v.                                               ___ _____________________          Keller, 717  F.2d 324, 328-29 (7th Cir.  1983).  A "gross miscar-          ______          riage  of justice" also may  be found, however,  if the forfeited          claim would "seriously effect[]  [sic] the fairness, integrity or          public reputation  of  a proceeding."   Desjardins  v. Van  Buren                                                  __________     __________          Community Hosp., 969 F.2d 1280, 1282 (1st Cir. 1992).19          _______________                                        ____________________               19New arguments may be entertained on appeal in "exceptional          circumstances" where  no prejudice  would result either  to other          parties  or to the administration  of justice.   United States v.                                                           _____________                                          29                    Any  showing  that  a "miscarriage  of  justice"  might          obtain in the present context  ultimately would depend on whether          the  constructive  trust awarded  CFI constituted  an unwarranted          "windfall," grossly disproportionate to any losses.  However, the          injustice  in any such  "windfall" is  inextricably bound  to the          remedial principles utilized to  resolve the dismissed claims and                                                                        ___          the  pending claims.  See,  e.g., Provencher, 699  F.2d at 570-72                                ___   ____  __________          (applying restitutionary principles where  more than one claimant          contributed  to  value  of property  claimed  under  constructive          trust); Janigan v. Taylor, 344 F.2d 781, 787 (1st Cir.) (explain-                  _______    ______          ing restitutionary principles applicable to  "constructive trust"          remedy),  cert. denied,  382  U.S. 879  (1965);  see generally  1                    ____  ______                           ___ _________          George E. Palmer, Law  of Restitution   2.14 (1978 & Supp. 1995);                            ___________________          Austin W. Scott & William F. Fratcher, Scott on Trusts   508 (4th                                                 _______________          ed. 1989 &  Supp. 1994);  Dale A. Oesterle,  Deficiencies of  the                                                       ____________________          Restitutionary Right to Trace  Misappropriated Property in Equity          _________________________________________________________________          and  in UCC    9-306, 68 Cornell  L. Rev. 172  (1983).  Moreover,          ____________________          crucial, unresolved  facts    including  the value of  the claims          over which CFI has  been awarded a constructive trust,20  and the                                        ____________________          Rivera, 55 F.3d 703, 708 (1st Cir. 1995); cf. City  of Newport v.          ______                                    ___ ________________          Fact Concerts, 453 U.S. 247, 255 (1981) (holding that a forfeited          _____________          claim may be considered on appeal where the trial court addressed          the merits of a  belated objection, and the appellate  court does          not disagree with the substance of the trial court ruling).               20Fisher asserted  at oral  argument that these  claims were          worth  at least $179 million, an estimate apparently based on the          Biopure/Upjohn  contract.    Biopure  stated that  no  proof  was          presented below as to the value of the  claims.  Fisher's supple-          mentary appendix includes an unindexed copy of the  contract, but          there is no indication  that it was before the  district court at          summary  judgment,  and we  have seen  no  record findings  as to                                          30          value of  Fisher's belatedly asserted untainted  contributions                                                   __          remain central  to the disputed  claims still pending  before the          district court.   Thus, the insufficiently  developed trial court          record  precludes  any reliable  determination  as  to whether  a          miscarriage  of justice would obtain  were the waiver  rule to be          applied to the Fisher v. Trainor action.                         ______    _______                                        ____________________          value.                                                             31                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    Accordingly,                     (1)  As the second Rule 54(b) certification was improv-          idently  granted, we  lack appellate  jurisdiction of  the Fisher          appeal in No. 95-1092,  which is hereby dismissed without  preju-                                                  _________          dice;                     (2)  the Ideal  appeal in No. 95-1091 is  dismissed for                                                              _________          lack of appellate jurisdiction and lack of standing;                     (3)  the  motion to vacate  the voluntary dismissal  of          the  Trainor appeal in No.  94-1854 is denied,  and the so-called                                                 ______          "cross-appeal  brief" filed by Fisher and Ideal in No. 94-1854 is                                                              hereby stricken;                  ________                    (4)  the  case is  remanded to  the district  court for          further proceedings consistent with this opinion; and                     (5)  double costs are awarded to CFI  and Biopure.  See                         ____________                                   ___          Fed. R. App. P. 38.                    SO ORDERED.                    SO ORDERED.                    __ _______                                          32
