           United States Court of Appeals
                      For the First Circuit

No. 13-2035

                             PACKGEN,

                       Plaintiff, Appellant,

                                v.

              BP EXPLORATION & PRODUCTION, INC., and
                   BP AMERICA PRODUCTION COMPANY,

                      Defendants, Appellees.



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

         [Hon. John A. Woodcock, Jr., U.S. District Judge]


                              Before

                      Thompson, Circuit Judge,
                    Souter,* Associate Justice,
                     and Stahl, Circuit Judge.




     Michael R. Bosse, with whom Travis M. Brennan, George F.
Burns, and Bernstein Shur were on brief, for Appellant.
     Christina Briesacher, with whom David J. Volkin, Amy Cashore
Mariani, Kirkland & Ellis LLP, and Fitzhugh & Mariani LLP were on
brief, for Appellees.


                           June 11, 2014



     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            STAHL, Circuit Judge.             In the aftermath of the Deepwater

Horizon oil spill of 2010, Appellant Packgen, a manufacturer of

packaging    products,       sought      to   sell   oil   containment       boom    to

Appellees    BP   Exploration        &   Production,       Inc.   and   BP   America

Production    Company    (collectively,           "BP").     Despite     months     of

negotiations,     BP ultimately decided not to purchase any boom from

Packgen.    Packgen subsequently filed a five-count complaint in the

federal district court in Maine, invoking diversity jurisdiction

and alleging various state-law tort claims.                   The district court

granted summary judgment in favor of BP.                      For the following

reasons, we affirm.

                                I.       BACKGROUND

            The district court's summary judgment order sets forth

the facts of this case in meticulous detail.                       Packgen v. BP

Exploration & Prod., Inc., 957 F. Supp. 2d 58, 63–82 (D. Me. 2013).

We reiterate them here as necessary to provide context for the

issues on appeal, but we note that many of the facts are based

solely on Packgen's own testimony.                   While the district court

accepted these facts as true for the purposes of the summary

judgment motion, see Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014)

(per curiam) ("[O]n a motion for summary judgment, the evidence of

the nonmovant is to be believed, and all justifiable inferences are

to   be   drawn   in   his    favor.")        (internal    quotation    marks       and

alternation omitted), in many instances BP disputed Packgen's


                                          -2-
version of events. The district court's order thoroughly documents

the points of dispute, and clarifies that it accepted Packgen's

version of the facts in every instance.        Packgen, 957 F. Supp. 2d

at 64–83 nn.1–81.

            On April 20, 2010, an oil drilling rig owned by BP named

Deepwater Horizon caught fire and sank off the Gulf Coast of

Louisiana, causing a massive oil spill.          Part of BP's response

involved the deployment of oil containment boom.             It had an

immediate need for millions of feet of boom, but it encountered

problems with availability, production, and interconnectivity.

            Packgen is a small business in Maine that designs and

manufactures composite packaging materials and containers used in

the chemical, oil, and food-processing industries.         Prior to the

Deepwater   Horizon   spill,   Packgen   had   never   manufactured   oil

containment boom. Nevertheless, it saw an opportunity to make boom

part of its business in the wake of the spill, and it began

constructing boom manufacturing equipment no later than April 28,

2010, prior to any discussions with BP.

            By early May 2010, Dan Forte, a marketing consultant for

Packgen, spoke to Mario Araya, who was procuring boom for BP. Araya

made an oral commitment to Forte to purchase all of Packgen's

present and future production of boom for $21.75 per square foot,

subject to a visit by BP personnel to inspect Packgen's facility

and boom capacity.    On May 11, 2010, Max Lyoen, a Supplier Quality


                                  -3-
Control Specialist for BP, inspected Packgen's facility and met

with   several    Packgen   representatives,   including   Forte,   John

Lapoint, and Don Roberts.         Lyoen was impressed by Packgen's

production capacity, and he stated that the end connectors used by

Packgen would meet BP's requirements.

             At that time, the American Society for Testing and

Materials (ASTM) standards were the only specifications that BP had

for boom.      Lyoen told Packgen's representatives that BP would

purchase Packgen's full production capacity once an independent

third party tested Packgen's boom for compliance with the ASTM

standards.       After that meeting, Lapoint wrote an email to a

colleague stating that "[we] should have a response by tomorrow

morning on how much [BP] will commit. . . . [W]e are just waiting

on BP to make their decision. . . ."

             On May 12, 2010, Forte and Araya spoke by phone, and

Araya stated "I'm placing an order.      We'll take it all."   The next

day, Araya negotiated the price down to $18.75 per square foot and

told Forte that BP would not pay up front.     In response, Forte sent

Araya an email thanking him for "discussing the details of a

possible transaction."      He stated that the companies "may be able

to address the issues concerning payment terms and pricing.         What

remains is the issue concerning the acceptability [of] our design

and the requirements you have stated. . . . All that we require is




                                   -4-
a   letter      from   Max   Lyoen   stating    that    the   design     meets    your

requirements."

             On May 13, 2010, Packgen informed BP that it was "moving

forward" with the sale and delivery.                   At that point, it began

gearing up its operations to produce 40,000 linear feet of boom per

day.     On May 18, 2010, Forte sent an email to Matt Pavlas, BP's

boom sourcing lead, stating that Packgen was "attempting sales to

BP and Oil Cleanup companies."            He informed Pavlas that Lyoen had

visited Packgen's facilities and written a report for BP; he asked

Pavlas     to     "provide      indications     if     this     report    meets     BP

requirements."         Pavlas provided Packgen with a copy of Lyoen's

report, which described Packgen's product as "experimental."

             Packgen hired Dr. Ian Durham to conduct third-party

testing.     On May 20, 2010, Dr. Durham reported that Packgen's boom

met ASTM standards.          Packgen provided Lyoen and two BP procurement

managers with the test results. On May 22, 2010, Don Roberts of

Packgen sent Pavlas an email expressing his "hope [that] the

information from the third party review helps in the decision

making process." Pavlas contacted Roberts by phone and stated that

BP intended to purchase Packgen's entire stock of boom.                     Roberts

followed up in an email on May 24, 2010, asking Pavlas for a

conference call "to discuss [our] possible working relationship."

Pavlas    responded      that    "first    I    would    like    to    receive     the




                                          -5-
information requested yesterday such as [quantity] in inventory,

etc."

            On May 26, 2010, Deenan Arcot of BP emailed Roberts

requesting the specifications for Packgen's boom, which he said BP

would have to approve prior to placing an order.        After receiving

the     specifications,    Arcot   expressed   reservations    about   the

construction of the boom in an email to Roberts, observing that it

was "[v]ery different . . . from others being used."          In a follow-

up email, Arcot wrote "I want to check the possibility that you can

modify these booms to our standard requirement."          Roberts later

testified that this was the first time BP ever expressed having any

standard requirement for boom other than the ASTM standards.

            On May 26, 2010, BP noted potential problems with the

connector plates and end connectors on Packgen's boom and informed

Packgen that it could not use the product at that time.           Lapoint

and Roberts spoke to BP's Charles Bigi about the connector issue,

and Bigi promised that BP would approve and buy Packgen's boom if

Packgen obtained new universal connectors.        On May 29, Bigi sent

two colleagues at BP an email summarizing his discussions with

Packgen and including the statement "I do not understand why we

keep placing orders with suppliers like this[.]"

            In late May or early June, Packgen secured universal

slide connectors.         On June 11, 2010, BP sent Luis Suarez, a

Supplier Quality Control Specialist, to conduct an assessment of


                                    -6-
Packgen's manufacturing process.   Following his visit, Suarez told

Lapoint and Roberts that BP would purchase Packgen's full capacity.

On June 15, 2010, Suarez requested that Packgen send 500-600 feet

of boom for evaluation by BP.   He issued a report the following day

in which he proposed three new modifications that he had not

previously discussed with Packgen.

          Meanwhile, BP's demand for boom continued to increase.

It began to institute a new approval process for boom manufacturers

and hired technical authorities on boom.    As of June 18, 2010, BP

had completed a written specification for 18" boom. Thereafter, it

began requesting that boom manufacturers complete a deviation form

if their boom differed from the specification.       Packgen's boom

design was so different from BP's specification that Packgen agreed

to submit a drawing of its boom instead of the deviation form.

Between June 16 to June 25, 2010, BP requested numerous changes

from Packgen, none of which were required by the ASTM standards.

Packgen worked at BP's direction to make the necessary changes.

          On June 21, 2010, Suarez reiterated his request for a

sample of boom to conduct field tests.      BP conducted its first

field test on June 30, 2010, at a BP site near Mobile, Alabama.

Packgen's boom did not perform well.    At that time, BP raised two

new concerns about Packgen's boom — first, it was constructed with

material that filled with water as it was towed, and second, it




                                 -7-
failed to meet certain decontamination standards.   Packgen worked

to address the two new concerns.

          While they were in Alabama, Bigi informed Roberts that BP

needed 24" boom and suggested that Packgen could be BP's supplier

for that product if it could adapt its manufacturing process.    On

July 7, 2010, Suarez forwarded the latest specification for 24"

boom to Packgen.     BP's John McFadden asked Packgen to "work on

getting the material to make 24" boom." At BP's direction, Packgen

completed a field test of the new boom on July 12, 2010, and

forwarded a video tape of the test to BP.

          BP capped the Deepwater Horizon well on July 15, 2010,

and shortly thereafter began winding down its boom purchases.

Nevertheless, it conducted another field test of Packgen's boom on

July 21, 2010.     BP's summary of the results show that the boom

performed well.    Following the field test, McFadden gave verbal

approval to Packgen's boom.   Suarez informed Packgen that it was

one of just three approved suppliers for 24" boom and that BP would

need boom to continue cleanup efforts through the end of 2010.

          At no point did BP tell Packgen to stop producing boom,

and it never paid for any of the boom Packgen produced.   On August

18, 2010, Roberts emailed BP expressing the understanding that

"there is not a need right now for [b]oom" but seeking a place on

BP's approved vendor list.    BP responded that Packgen had been

added to the approved vendor list for boom.


                                -8-
            Packgen was left with 60,000 feet of completed boom in

its   warehouse,   which       it   sold     in   September   2010    to   the   only

purchaser it could find for two dollars a square foot.                     Although

Packgen was unable to sell or return many of the materials that it

purchased to manufacture boom, it managed to sell some at a loss

and incorporate some into its other products. Since the resolution

of the Gulf Coast spill, Packgen has not manufactured boom.

                                    II.    ANALYSIS

            "We review orders for summary judgment de novo, assessing

the record in the light most favorable to the nonmovant and

resolving all reasonable inferences in that party's favor."

Barclays Bank PLC v. Poynter, 710 F.3d 16, 19 (1st Cir. 2013)

(internal    quotation         marks      omitted).      Summary      judgment    is

appropriate when "there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a).

A.          Misrepresentation (Counts I & II)

            In   Counts    I    and    II,    Packgen   alleged      negligent    and

intentional misrepresentation.               While negligent and intentional

misrepresentation are distinct claims, both require the plaintiff

to show that the defendant made a "false representation of present

fact."   Kearney v. J.P. King Auction Co., 265 F.3d 27, 33 n.8 (1st

Cir. 2001); see also Guiggey v. Bombardier, 615 A.2d 1169, 1173




                                           -9-
(Me. 1992) ("A common, essential element of both claims is the

requirement of a false representation.").

          As the district court observed, Packgen bases these two

claims on three groups or categories of misrepresentations: "(1)

what, at a particular point in time in the oil spill saga, BP

required for its specification, (2) its intention to purchase

Packgen's boom, and (3) how much boom it needed at any particular

time."   Packgen, 957 F. Supp. 2d at 86. The district court

concluded that both claims fail as a matter of law because there is

no   evidence   in    the     record      that     any     of     the   alleged

misrepresentations were false at the time they were made.1                 Id. at

86–88.   We agree.    See Jordan-Milton Mach., Inc. v. F/V Teresa

Marie, II, 978 F.2d 32, 36 (1st Cir. 1992) (affirming a directed

verdict in favor of the defendant on a negligent misrepresentation

claim where "there was a total lack of evidence to prove that [the

defendant's] statements were false at the time they were made").

          Packgen    argues   on   appeal        that    the    district   court

improperly weighed the evidence in BP's favor while overlooking

reasonable inferences that the jury could have drawn in Packgen's



     1
       The district court also discussed the possible application
of the so-called Shine exception, which allows statements of
opinion to be actionable as misrepresentations under certain
circumstances. Packgen, 957 F. Supp. 2d at 85–86; Shine v. Dodge,
157 A. 318, 319 (Me. 1931). Because we conclude, along with the
district court, that the evidence does not show the alleged
misrepresentations to be false, we do not need to delve into the
Shine exception.

                                   -10-
favor.      None   of    the   possible     inferences   raised   by   Packgen

controvert the fundamental deficiency identified by the district

court, however, because Packgen still does not identify specific

evidence in the record showing that any of BP's statements were

false at the time they were made.           A party cannot survive summary

judgment    simply      by   articulating    conclusions   the    jury   might

imaginably reach; it must point to evidence that would support

those conclusions.           See Miss. Pub. Emps.' Ret. Sys. v. Bos.

Scientific Corp., 649 F.3d 5, 28 (1st Cir. 2011) ("With respect to

each issue on which [a] plaintiff has the burden of proof at trial,

it   must   present      definite,   competent    evidence   to    rebut   the

motion . . . .") (internal quotation marks omitted).

            For example, Packgen posits that "a jury could reasonably

conclude that BP kept making changes to its specification during

the spill so that manufacturers would continue to work for BP,

acceding to different requests made by BP at different times,

without BP actually having to pay for the boom." [Appellant Br. at

42–43.]     If a jury reached that conclusion, it would be pure

speculation.       The evidence shows that BP's boom specifications

changed repeatedly during its course of dealing with Packgen, but

nothing in the record indicates that these changes reflect the bad

intentions that Packgen describes.              Similarly, nothing in the

record indicates that BP expressed an intention to purchase boom




                                     -11-
when it actually had no such intention, or that it ever claimed to

need more boom than it really needed.

               Thus, the district court did not impermissibly weigh

evidence or ignore reasonable inferences.                     Rather, it pointed out

the       absence    of   evidence      supporting      Packgen's         position.     Its

reasoning and conclusions were correct, and we affirm its judgment

as to Counts I and II.

B.             Breach of Contract (Count III)

               Under the Maine Statute of Frauds, a contract for the

sale of goods for five hundred dollars or more is unenforceable

"unless there is some writing sufficient to indicate that a

contract for sale has been made between the parties and signed by

the party against whom enforcement is sought or by his authorized

agent."       Me. Rev. Stat. tit. 11, § 2-201(1).                    Packgen does not

claim that there is any written agreement in this case that would

satisfy      the     Statute     of   Frauds.       Instead,    it    argues      for   the

application          of    two    statutory         exceptions:      the        "specially

manufactured         goods"      exception      and    the    "judicial         admission"

exception.          The district court held that neither applies, and we

agree.

               1.         Specially Manufactured Goods Exception

               The Maine statute creates an exception to the requirement

of    a    written    agreement       "[i]f   the     goods   are    to    be   specially

manufactured for the buyer and are not suitable for sale to others


                                          -12-
in the ordinary course of the seller's business."           § 2-201(3)(a).

The applicability of the exception depends on whether the goods

themselves have unique qualities that render them unfit for sale

without major alterations to anyone other than the intended buyer.

        The term 'specially manufactured' . . . refers to the
        nature of the particular goods in question and not to
        whether the goods were made in an unusual, as opposed to
        the regular, business operation or manufacturing process
        of the seller. . . . The crucial inquiry is whether the
        manufacturer could sell the goods in the ordinary course
        of his business to someone other than the original buyer.
        If with slight alterations the goods could be so sold,
        then they are not specially manufactured; if, however,
        essential changes are necessary to render the goods
        marketable by the seller to others, then the exception
        does apply.

9 Williston on Contracts § 26.19 (4th ed.) (quoting Impossible

Elec. Techniques, Inc. v. Wackenhut Protective Sys., Inc., 669 F.2d

1026, 1037 (Former 5th Cir. 1982)) (internal quotation marks

omitted).

             Here, as the district court observed, after BP declined

to buy its boom, Packgen was able to sell it to another buyer

without any alterations. It is true the Packgen received a greatly

reduced price than what BP appeared prepared to pay, but the

undisputed facts show that the price reduction was caused by an

overabundance of boom in the market following the capping of the

leak.     Under these circumstances, the exception does not apply.

             Packgen's   arguments    on    appeal   do   not   persuade   us

otherwise.     Rather than pointing to any unique qualities of its

product, Packgen argues that the circumstances surrounding its

                                     -13-
production and sale of boom indicate that its product was specially

manufactured for BP.    It points to the fact that BP was purchasing

ninety percent of domestic boom production in the aftermath of the

spill, and that Packgen only decided to enter the boom market in

response to the disaster. These arguments are beside the point. It

is the nature of the goods themselves that matters, not the

circumstances under which Packgen tried to do business with BP.

             Packgen also argues that it did not sell boom in its

ordinary course of business, because it never sold boom before the

spill and it has not sold boom since.     This argument ignores the

fact that Packgen independently entered the market for boom and

attempted to sell its product to BP; it did not make that decision

at BP's request.     As BP accurately points out, "under Packgen's

analysis, any company [that] attempts to break into any business

could claim a contract for specially manufactured goods when its

attempt fails and it liquidates its inventory."     [Appellee's Br.

18]   This exception does not exist as a safety net for failed

business ventures. Instead, it protects sellers who might be stuck

with "goods that are difficult or impossible to sell to others"

because of their unique nature. 9 Williston on Contracts § 26.19.

That is not Packgen's position in this case.     Thus, the district

court correctly declined to apply the "specially made goods"

exception.




                                -14-
            2.        Judicial Admission Exception

            The Statute also creates an exception "[i]f the party

against   whom   enforcement       is   sought    admits   in   his    pleading,

testimony or otherwise in court that a contract for sale was made."

§ 2-201(3)(b).       The admission "need not expressly acknowledge the

existence   of   a    contract,"    but    it    must   "describe     conduct   or

circumstances from which the trier of fact can infer a contract."

Gruen Indus., Inc. v. Biller, 608 F.2d 274, 278 (7th Cir. 1979).

Packgen offers two bases for the application of this exception.

First, Packgen points to deposition testimony in which Charles Bigi

authenticated an email that he sent to colleagues at BP, supposedly

referring to an order BP placed with Packgen.               Second, it points

out that BP failed to provide record citations when it denied

certain statements in Packgen's statement of material facts.

Packgen argues that under Federal Rule of Civil Procedure 56, the

failure to provide record citations constitutes admissions that

satisfy the exception.

                      a.   Charles Bigi's Email

            In the email that Packgen puts forth as an admission,

Charles Bigi wrote to his colleague, "I do not understand why we

keep placing orders with suppliers like this[.]"                    The district

court concluded that "viewing the statement in the context of the

rest of the undisputed evidence, and viewing the entire record in

the light most favorable to Packgen, Mr. Bigi's email does not


                                        -15-
support" an inference that a contract existed between BP and

Packgen.    Packgen, 957 F. Supp. 2d at 93.          Packgen argues that the

district    court   "invaded    the    jury's    province   by   impermissibly

weigh[ing] conflicting evidence" when it reviewed the record to

assess the significance of Bigi's email.             [Appellant's Br. 25]      We

disagree.    In order to accurately determine whether a jury might

infer a contract from Bigi's email, the district court had to look

at the statement in the context of the ongoing communications

between BP and Packgen.

            In Gruen, the Seventh Circuit engaged in a similar

analysis.    In that case, the plaintiff argued that an agent of the

defendant made statements in a deposition describing conduct from

which a jury could infer the existence of a contract.              608 F.2d at

278–80.    The court concluded that a "reading of the transcript of

these   statements,      however,     shows     nothing   more   than    ongoing

negotiations, because the conduct was accompanied by statements

making it clear that there was no agreement until the negotiations

were complete."       Id. at 279–80 (footnote omitted).

            Here, the district court reviewed the communications

between Packgen and BP that led up to Bigi's email and concluded

that the evidence did not support an inference that a binding

agreement existed at that time.         We do not need to walk through the

district    court's    review   of    the   record   step   by   step,   but   we

highlight one key point.        On May 24, 2010, just a few days before


                                      -16-
Bigi's email, Packgen requested a conference call with BP to

"discuss [our] possible working relationship."         That statement is

an unambiguous indication that Packgen itself did not believe it

had a binding agreement with BP as of that date.           Nothing in the

record indicates that a deal occurred between May 24 and 29; to the

contrary, on May 26, BP stated that it would have to approve

Packgen's specifications before placing an order.

           Thus, it was appropriate for the district court to wonder

"to what order does [Bigi's] email supposedly refer?" Packgen, 957

F. Supp. 2d at 93. The record of Packgen's own statements prior to

Bigi's email consistently points to ongoing negotiations between

the parties rather than a binding agreement.               Moreover, Bigi

testified in his deposition that he had no knowledge of any orders

that Packgen had from BP, and that he would not have "been part of

any contracts or commercial agreements."        [App. 967–69]    In light

of the record as a whole, we agree with the district court's

conclusion that Bigi's email is not an admission for the purposes

of the Statute of Frauds.

                   b.   Denials Unsupported By Record Citations

           Packgen also argues that the district court should have

deemed   certain   portions   of   its    statement   of   material   facts

admitted, because BP failed to properly controvert them with

citations to the record in violation of Federal Rule of Civil

Procedure 56.   Packgen, 957 F. Supp. 2d at 94–95 & n.84.       According


                                   -17-
to Packgen, if the district court had admitted its statements as

uncontroverted, they would satisfy the judicial admission exception

to the Statute of Frauds.

          Packgen's argument proceeds as though the admission of

uncontroverted statements of fact is an iron-clad rule.        That

position does not comport with our case law. In Cabán Hernández v.

Philip Morris USA, Inc., we explained that "in the event that a

party opposing summary judgment fails to act in accordance with the

rigors that such a rule imposes, a district court is free, in the

exercise of its sound discretion, to accept the moving party's

facts as stated."   486 F.3d 1, 7 (1st Cir. 2007).   In other words,

a party's failure to comply with the formal requirements of Rule 56

does not trigger a mechanical response from the district court.

Instead, the district court acts within its discretion to respond

in a manner appropriate to the circumstances of the case.      This

approach is consistent with the language in the District of Maine

Local Rule 56(f), which provides that the court "may disregard any

statement of fact not supported by a specific citation to record

material properly considered on summary judgment."    D. Me. Loc. R.

56(f) (emphasis added).

          Here, the district court did not abuse its discretion.

It observed that BP "has consistently denied that it entered into

an oral agreement, and has supported its denial with the sworn

statements of [its] employees."   Packgen, 957 F. Supp. 2d at 95.


                               -18-
Further, it noted that Packgen had not managed in the course of

discovery "to establish a BP admission that would qualify under the

judicial admission exception.           Instead, it posited assertions of

its own employees as statements of material fact and attempted to

place the onus on BP not only to deny them, but also to proffer

evidence justifying the denial."              Id.     It concluded that "[i]n

these unusual circumstances, the Court holds Packgen to what

Packgen itself found during discovery." Id.               We find these reasons

more than adequate to justify the district court's decision not to

deem       Packgen's   statements    admitted       for   the   purpose   of   the

exception.

               In sum, the district court did not err in deciding that

neither exception to the Statute of Frauds applies.                We affirm its

entry of judgment in favor of BP on Count III.

C.             Equitable Relief (Count IV)

               In   Count   IV,   Packgen   sought    equitable    relief   under

theories of unjust enrichment and quantum meruit.2                 The district

court, relying on Paffhausen v. Balano, 708 A.2d 269 (Me. 1998),

distinguished the two theories: "Quantum meruit . . . involves


       2
        The caption to Count IV also includes "Restitution," but
restitution in this context is a type of remedy, not a cause of
action separate and distinct from unjust enrichment.           See
Restatement (Third) of Restitution & Unjust Enrichment § 1 (2011)
("A person who is unjustly enriched at the expense of another is
subject to liability in restitution."); Goodwin v. C.N.J., Inc.,
436 F.3d 44, 50 (1st Cir. 2006) ("Restitution is a remedy
associated with the concept of unjust enrichment."). Therefore the
district court correctly declined to analyze it separately.

                                       -19-
recovery for services or materials provided under an implied

contract.      Unjust enrichment describes recovery for the value of

the benefit retained when there is no contractual relationship."

Packgen, 957 F. Supp. 2d at 96 (quoting Paffhausen, 708 A.2d at

271).   To prevail on an unjust enrichment claim under Maine law, a

plaintiff must show that "(1) it conferred a benefit on the other

party; (2) the other party had appreciation or knowledge of the

benefit; and (3) the acceptance or retention of the benefit was

under such circumstances as to make it inequitable for it to retain

the benefit without payment of its value."                   Id. (quoting Platz

Assocs.   v.     Finley,   973    A.2d    743,    750   (Me.   2009))   (internal

quotation mark omitted).           A quantum meruit claim requires proof

"that (1) services were rendered to the defendant by the plaintiff;

(2) with the knowledge and consent of the defendant; and (3) under

circumstances that make it reasonable for the plaintiff to expect

payment."      Id. (quoting Paffhausen, 708 A.2d at 271) (internal

quotation mark omitted).          The district court correctly concluded

that Packgen cannot prevail under either theory.

            1.       Unjust Enrichment

            Packgen argued before the district court that it provided

technical      information       that    BP     used    to   develop    its   boom

specification.      It urged the district court to follow APG, Inc. v.

MCI Telecommunications Corp., 436 F.3d 294 (1st Cir. 2006), in

which this court allowed an unjust enrichment claim to survive


                                         -20-
summary judgment where the plaintiff acted as a middleman in the

sale of prepaid telephone cards between the defendant and a third

party.    The defendant in APG ultimately dealt directly with the

third party, cutting the plaintiff out of the deal. The court held

that there was sufficient evidence to raise a question of fact

regarding whether the time and effort expended by the plaintiff to

secure the deal constituted a benefit for the defendant.               Id. at

305–06.

           The   district    court    decided   that   this   case    is   less

analogous to APG than to Forrest Associates v. Passamaquoddy Tribe,

760 A.2d 1041 (Me. 2000). In Forrest Associates, the plaintiff was

a management consulting firm that provided the defendant with a

market assessment and proposal related to a bingo operation.               The

Supreme   Judicial   Court    of     Maine   vacated   a   judgment   in   the

plaintiff's favor on its unjust enrichment claim.              It held that

"the evidence in the record fails to establish that Forrest

conferred a benefit on the Tribe.            Although Forrest created the

comprehensive plan and presented it to the Tribe, there is no

evidence that the Tribe benefitted from either the presentation or

the information contained in the plan."         Forrest Assocs., 760 A.2d

at 1046. We agree with the district court that the same conclusion

applies here.

           On appeal, Packgen repeats its argument that BP used

information provided by Packgen "to develop a general specification


                                     -21-
for boom and to realize cost savings."   It fails, however, to cite

any evidence in the record supporting that statement, and our own

review of the record has not uncovered any.    The record shows that

Packgen provided information about its boom design to BP, but

nothing indicates that BP used the information in any way for its

own benefit. Therefore, we affirm the district court's judgment in

favor of BP on the unjust enrichment claim.

          2.       Quantum Meruit

          Packgen fares no better under a theory of quantum meruit.

In Paffausen, the Supreme Judicial Court of Maine explained that a

successful quantum meruit claim requires "proof that services were

rendered under circumstances consistent with contract relations.

It must appear that the one who rendered the services expected

compensation and that the one who received or benefitted from the

services so understood, and by her words or conduct justified the

expectation."     708 A.2d at 272 (citation and internal quotation

marks omitted).

          In this case, it is not apparent what "services" Packgen

provided that might be the basis for a quantum meruit claim.     It

took steps to test and modify its product and provide BP with

information in an effort to complete a sale.    We do not think that

type of activity is a "service" in the ordinary sense of the word.

But even setting that point aside, there is nothing in the record

that suggests either party expected BP to compensate Packgen for


                                -22-
anything other than the product itself.               In other words, the

negotiations between the parties here were for a sale of goods, not

the provision of services.          In the absence of any expectation of

payment for services rendered, the quantum meruit claim must fail.

D.          Promissory Estoppel (Count V)

            Packgen's final claim is for equitable relief under a

theory of promissory estoppel.           Maine courts have adopted the

definition of promissory estoppel in the Restatement (Second) of

Contracts, which states that "[a] promise which the promisor should

reasonably expect to induce action or forbearance on the part of

the promisee or a third person and which does induce such action or

forbearance     is   binding   if   injustice   can   be   avoided   only   by

enforcement of the promise."          Restatement (Second) of Contracts

§ 90(1); see Harvey v. Dow, 962 A.2d 322, 325 (Me. 2008).                   The

parties dispute whether under Maine law the doctrine applies to a

promise that is otherwise unenforceable under the Statute of

Frauds.

            Maine courts have not definitively settled this question.

In some cases, they have relied on Section 139 of the Restatement,

which provides that promissory estoppel may apply "notwithstanding

the   Statute   of   Frauds    if   injustice   can   be   avoided   only   by

enforcement of the promise."          Restatement (Second) of Contracts

§ 139(1).    Thus, in Chapman v. Bomann, the Supreme Judicial Court

of Maine allowed a promissory estoppel claim to go forward seeking


                                      -23-
enforcement of an oral promise to sign a contract for the sale of

real estate, despite the fact that the unsigned contract was itself

unenforceable under the Statute of Frauds.     381 A.2d 1123, 1129

(Me. 1978).   But in the context of employment contracts, Maine

courts have categorically rejected the application of promissory

estoppel to promises otherwise unenforceable under the Statute.

See Stearns v. Emery-Waterhouse Co., 596 A.2d 72, 74–75 (Me. 1991)

("Although section 139 of the Restatement may promote justice in

other situations, in the employment context it contravenes the

policy of the Statute to prevent fraud.").

          We have not found a Maine case addressing this question

in the specific context of this case, a sale of goods over five

hundred dollars.   Nevertheless, we think the court's discussion in

Chapman is sufficiently thorough for us to anticipate how the state

court would proceed.   See Noonan v. Staples, 556 F.3d 20, 30 (1st

Cir. 2009) ("Although we recognize that in exercising our diversity

jurisdiction we must tread lightly in offering interpretations of

state law where controlling precedent is scarce, we are also

obliged to provide our 'best guess' as to open questions of state

law when necessary.") (citation omitted).

          In Chapman, the court invoked the "general equitable

principle that since it is the purpose of the Statute of Frauds to

prevent fraud, that Statute cannot be permitted to be itself an

instrument of fraud." 381 A.2d at 1128. It also expressly adopted


                                -24-
Comment f to Section 178 of the Restatement, which explains that

promissory estoppel may apply to a promise that is unenforceable

under the Statute "if the statute would otherwise operate to

defraud."    Id. at 1129 (internal quotation mark omitted).    The

court clarified that its adoption of the standard in Comment f does

not require that the promisor "made the promise with an actual

subjective intention to relinquish the right to assert the Statute

of Frauds or with an actual intention otherwise to deceive."   Id.

Rather, the criterion is "whether all the particular circumstances

. . . show, objectively, that a fraud, or a substantial injustice

tantamount to a fraud, would be perpetrated upon the promisee were

the promisor allowed to assert the Statute of Frauds as a bar."

Id.

            Although the facts of Chapman are not analogous to this

case,3 the court spoke in terms of general principle.   It appears


      3
       In Chapman, the defendants (a husband and wife) invoked the
Statute of Frauds as a defense against the enforcement of a
contract for a sale of real estate that they had not signed. 381
A.2d at 1128. The wife, however, had made a "separate ancillary
promise . . . that she and her husband would sign, and return, the
document." Id. at 1126. The issue facing the court was whether the
separate promise to sign the document was enforceable under
promissory estoppel. The court noted that the promise to sign was
"not itself within the textual language of the Statute of Frauds,"
but is nevertheless "deemed to be within the penumbra of the
Statute's policy and thus becomes unenforceable like the underlying
agreement to which it relates." Id. at 1128. Thus, the court drew
a distinction between the "penumbral policy" and the "actual terms"
of the Statute, id. at 1129, and there is a strong argument that it
would prohibit the use of promissory estoppel outright when, as in
the case before us, the actual terms of the Statute apply. See
Stearns, 596 A.2d at 74 (explaining that "although we invoked the

                                -25-
to seek a middle course between an outright bar on the use of

promissory estoppel on one hand and the wholesale use of the

doctrine to evade the Statute on the other.             Thus, it adopts a

useful limiting principle, consistent with the purpose of the

Statute, that allows courts to apply promissory estoppel when "it

would be grossly unjust and, therefore, tantamount to a fraud on

the plaintiffs to allow [a] defendant to assert the Statute of

Frauds."    Id. at 1129.

            Of course, it is entirely possible that the Maine courts

would bar the use of promissory estoppel claims entirely for the

sale of goods, just as they did in the employment context in

Stearns. See supra n.4. But whether we follow Stearns or Chapman,

Packgen's   claim   fails.       Under   Stearns,    the   claim   would   be

categorically barred, and there is no evidence from which a jury

could find that Packgen has met the standard set forth in Chapman.

There is nothing in the record, such as evidence of deliberate

deception    or   bad   faith,   revealing   "a     substantial    injustice

tantamount to a fraud."      See Chapman, 381 A.2d at 1129.        Thus, the


rubric of promissory estoppel, our decision in Chapman actually
applied an equitable estoppel and extended it only to an ancillary
promise to make a writing") (emphasis added); Jolovitz v. City of
Waterville, No. Civ.A. AP-01-82, 2003 WL 22100663, at *2 (Super.
Ct. Me. Aug. 26, 2003) ("The agreement [in Chapman] was not the
sales contract itself, which would bump more squarely into the
Statute of Frauds considerations.").    As we explain, Packgen's
claim fails whether we follow the standard set forth in Chapman or
bar the claim outright as the court did in the employment context
in Stearns. Therefore, we can leave that question for the Maine
courts to settle.

                                   -26-
district court correctly concluded that the promissory estoppel

claim fails as a matter of law.

                         III.   CONCLUSION

          For the foregoing reasons, we AFFIRM the district court's

ruling.




                                -27-
