
USCA1 Opinion

	




        April 1, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1683                              LAURENCE ALBRIGHT, ET AL.,                               Plaintiffs, Appellants,                                          v.                 FEDERAL DEPOSIT INSURANCE CORPORATION, ETC., ET AL.,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                                                                      ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                                                                      ____________________             Michael E. Chubrich, with whom Eldredge, Chubrich & Harrigan  was             ___________________            _____________________________        on brief for appellants.             Gregory E. Gore, with whom Ann S. DuRoss and Robert D. McGillicu-             _______________            _____________     ____________________        ddy were on brief for appellees.         ____                                                                                      ____________________                                                                                      ____________________                    CYR,  Circuit Judge.   Plaintiffs-appellants,  one hun-                    CYR,  Circuit Judge.                          _____________          dred-sixty charter members of a defunct health club,  challenge a          district court decision granting summary judgment  to defendants-          appellees, various entities that  later acquired interests in the          real property  upon which the  health club facility  was located.          Finding no error, we affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In 1987, Amoskeag Bank ("the Bank") loaned $7.5 million          to Greenleaf  Investment Group  ("the Developer") to  construct a          commercial condominium and health  club facility (the "Property")          in Portsmouth,  New Hampshire.  The  note was secured by  a first          mortgage  on the  Property.  After  the Developer  completed con-          struction  in 1988,  it "leased"  the health  club facility  to a          corporation called Greenleaf Sports  and Fitness Club, Inc. ("the          Health Club"),  which sold long-term charter  health club member-          ships to appellants, at  prices ranging from $2500 to $3500.1  In          April  1990,  the Developer  defaulted on  the  note.2   The Bank          later exercised its power  of sale under the first  mortgage, and          the Property  was  acquired by  appellee  A.B. Club  Holdings  (-                                        ____________________               1The charter memberships entitled appellants to use the club          facilities,  subject  to their  payment  of  annual renewal  fees          substantially below the annual fee for non-"charter" members.               2The Developer eventually initiated a chapter 11 reorganiza-          tion proceeding, which was  later converted to chapter 7.   There          is  no  evidence that  appellants filed  proofs  of claim  in the          bankruptcy proceedings.                                          2          "ABCH"), the Bank's wholly-owned subsidiary.                    The Health Club vacated the leased premises five months          after the Developer's default, but the Bank and ABCH continued to          operate a  health club  facility on  the premises, with  appellee          Club Sports International ("CSI") as its managing entity.  During          a six-month  transitional  period  following  the  Health  Club's          closure, appellants were permitted to use the health club facili-          ties under the terms of their  alleged Health Club contracts.  In          February 1991,  however, CSI  informed appellants that  they must          pay higher fees, equaling fifty percent  of the fee for new  club                                                                  ___          members.                    Appellants  promptly filed  a three-count  complaint in          New Hampshire Superior Court against, inter alia, the Bank, ABCH,                                                _____ ____          and CSI.  Count  1 sought a judicial declaration  that appellants          held  a "unique  contractual property  right" by virtue  of their          charter  club memberships,  and  that appellees  were either  the          Developer's  successors-in-interest  or  its third-party  benefi-          ciaries, and therefore were  contractually obligated to honor the          charter membership contracts, see Cyr v. B. Offen & Co., 501 F.2d                                        ___ ___    ______________          1145,  1152   (1st  Cir.  1974)  (noting   indicia  of  successor          liability).   Count  2  sought the  imposition of  a constructive          trust  upon all charter membership  fees still held by appellees,          on the ground that the  Bank had been aware from the  outset that          the  Developer  used $200,000  of appellants'  charter membership          fees to repay its  construction loan, in violation of  the Devel-          oper's contractual promise to  appellants to segregate their fees                                          3          in  a trust fund.   Finally, Count 3  sought compensatory damages          (or  a refund of all  membership fees) and/or  treble damages for          appellees'  unfair  and  deceptive  trade  practices  in  willful          violation of the New Hampshire Consumer Protection Act ("NHCPA"),          see  N.H. Rev. Stat. Ann    358-A:2, 358-A:10 (1993).  The Bank's          ___          motion to dismiss counts 1 and 3 for failure to state a claim was          denied by the superior court.3                    In October  1991, the  Bank was declared  insolvent and          the Federal Deposit Insurance  Corporation ("FDIC"), as receiver,          removed  the case  to  federal district  court.   See  12  U.S.C.                                                            ___            1819(b)(2)(B) (1993).  Appellants  promptly moved for remand to          the state  court,  arguing  that  resolution of  the  suit  would          require "only the  interpretation of the law of [New Hampshire]."          Id.    1819(b)(2)  (D)(iii).   FDIC  opposed  remand, citing  its          ___          intention to rely on  various federal-law defenses, including the          unenforceability of  the alleged club membership  contracts under          D'Oench Duhme  & Co. v. FDIC, 315 U.S. 447 (1942), as codified at          ____________________    ____          12 U.S.C.   1823(e), and FDIC's  immunity from suit for compensa-          tory damage  claims under the NHCPA, cf.  Timberland Design, Inc.                                               ___  _______________________          v.  First Serv. Bank  for Sav., 932  F.2d 46, 50  (1st Cir. 1991)              __________________________          (D'Oench  defense may  also foreclose  tort-based  claims against           _______          FDIC based  on "secret"  agreements), and from  "punitive" treble                                        ____________________               3The superior court  granted the motion  to dismiss Count  2          (constructive trust), citing  appellants' failure to allege  that          the  Bank owed appellants a  fiduciary duty.   As appellants have          not reasserted their constructive  trust claim, we disregard case          law cited  by appellants to the extent  it relates to the imposi-          tion  of constructive trusts under New Hampshire law.  See, e.g.,                                                                 ___  ____          Milne v. Burlington Homes, Inc., 117 N.H. 813 (1977).          _____    ______________________                                          4          damage awards under the  NHCPA, see, e.g., FDIC v.  Claycomb, 945                                          ___  ____  ____     ________          F.2d 853,  861 (5th  Cir. 1991),  cert. denied,  112 S. Ct.  2301                                            _____ ______          (1992).  While the remand motion awaited decision, FDIC filed its          motion for summary judgment.                    The district court later rejected  a magistrate-judge's          recommendation  that the case be remanded to state court for lack          of subject matter jurisdiction pursuant to 12 U.S.C.   1819(b)(2)          (D)(iii),4  and granted FDIC's motion for summary judgment on the          two remaining counts in appellants' complaint.  Appellants appeal          from the  summary judgment  order,  and from  the district  court          order denying their motions for reconsideration.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.  Removal Jurisdiction           A.  Removal Jurisdiction               ____________________                    Appellants argue that FIRREA   1819(b)(2)(D)(iii) ousts          the  district  court  of  jurisdiction  because  their  complaint          alleged one dispositive state-law claim unaffected by any federal          defense  advanced by FDIC.   Specifically, drawing  on an oblique                                        ____________________               4As  a  threshold   argument,  appellants  claim   that  the          magistrate-judge's report and recommendation issued pursuant to a          referral under 28 U.S.C.    636(b)(1)(A), rather than  subsection            636(b)(1)(B), because  a motion  to remand to  state court  for          lack  of federal  jurisdiction  is  "nondispositive."  Appellants          argue that the district court improperly reviewed the magistrate-          judge's findings de  novo, rather  than for "clear  error" or  as                           __  ____          "contrary to  law."  We disagree.   The magistrate-judge's report          resolved  no disputed  jurisdictional facts.   Instead,  it dealt          with a pure issue  of law    whether FDIC's  anticipated defenses          were legally sufficient to  foreclose remand to the  state court.          Under  either subsection  636(b)(1)(A)  or  (B), the  recommended                 ______                           __          conclusions of law were subject to de novo review by the district                                             __ ____          court, and, in turn, by the court of appeals.                                          5          mention  in Count  I  that  their  charter memberships  confer  a          "unique contractual  property right,"  appellants now  argue that                               ________          these memberships are roughly akin to mechanic's liens  under New          Hampshire law.                    We have held that FDIC may not invoke the D'Oench Duhme                                                              _____________          defense to avoid certain state-law liens which attach to a failed          bank's  assets  prior to  FDIC's  appointment as  receiver.   See                                                                        ___          Bateman v. FDIC, 970 F.2d 924, 927 (1st Cir. 1992) (Maine mechan-          _______    ____          ic's lien not an "agreement" within meaning of D'Oench doctrine).                                                         _______          In Capizzi v. FDIC, 937 F.2d 8 (1st Cir. 1991),  however, we held             _______    ____          that  FIRREA   1819(b)(2)(D)(iii) embodies  a deliberate congres-                                                        __________ ________          sional  abrogation  of  the  "well-pleaded  complaint"  rule, see          ______  __________                                            ___          Franchise Tax  Bd. v.  Construction Laborers Vacation  Trust, 463          __________________     _____________________________________          U.S.  1, 9-10  (1983)  (defining phrase  "arising under"  federal          law),  which in other contexts permits a district court to invoke          its  nondiversity  removal  jurisdiction only  if  the  complaint          alone,  without reference  to  the character  of any  anticipated          _____          defense  under federal  law, discloses  that the  state-law claim          implicates a substantial federal question.  Capizzi, 937 F.2d  at                                                      _______          11  (noting  that    1819(b)(2)(D)  (iii)  "expanded  the  FDIC's          powers, and  . . . federal  jurisdiction") (emphasis added);  see                  ___        _______  ____________                      ___          Diaz v. McAllen State Bank, 975 F.2d  1145, 1149 (5th Cir. 1992);          ____    __________________          Reding v. FDIC, 942  F.2d 1254, 1258  (8th Cir. 1991); Lazuka  v.          ______    ____                                         ______          FDIC,  931  F.2d  1530, 1535  (11th  Cir.  1991).   Thus,  FIRREA          ____            1819(b)(2) (D)(iii) directs the district court "to consider the          case  as a  whole     complaint and likely  defenses"     and "to                __ _  _____                                          6          gauge  [the]  . . .  likely   significance"  of  those  defenses.                               ______   ____________          Capizzi, 937 F.2d at  10, 11 (emphasis added); see Diaz, 975 F.2d          _______                                        ___ ____          at 1149-50 ("[A]sserting a federal defense will not alone prevent          remand  . . . [,]  the FDIC  must  assert a  defense  that raises          colorable issues of federal law.") (emphasis added).          _________                    The district court  relied on several  reasoned grounds          for its ruling  disallowing appellants'  motion for  remand.   We          affirm  on a singularly sufficient ground.  The complaint asserts          several alternative claims  for relief.  Even  if their so-called          property-right  or  "mechanic's lien"  claim  were  sound on  the          merits, and further,  assuming it were found  invulnerable to the          D'Oench Duhme defense by reason of the Bateman  exception, appel-          _____________                          _______          lants also  asserted willful  violations of  the NHCPA for  which          treble damages might be recoverable because of appellees' interim                                                                    _______          refusal  to permit them to  use the health  club facilities under          the terms of their  original membership contracts.  In  turn, the          treble-damages demand under the  NHCPA would implicate FDIC's two          federal defenses to  any NHCPA recovery.   See Timberland Design,                                                     ___ _________________          932 F.2d at 50; Claycomb, 945 F.2d at 861.  On the other hand, if                          ________          appellants'  "mechanic's lien"  claim were  found nonmeritorious,          the court would  be required to rule on their claim for compensa-          tory  damages for breach of  their membership contracts, based on          appellees' alleged liability as the contractual successors of the          Developer or the  Health Club.   In the  latter event, the  court          would be required to rule on the D'Oench Duhme defense.                                           _____________                    Finally, even at the preliminary  jurisdictional stage,                                          7          FDIC's various federal defenses, see supra p. 4, and particularly                                           ___ _____          its D'Oench Duhme defense,  were more than colorable.   See Bate-              _____________                ____                   ___ _____          man, 970 F.2d at 926-27 (under D'Oench Duhme, alleged "agreement"          ___                            _____________          must be in writing, executed by bank, approved by bank's board of          directors,  and kept continuously  in bank  records from  date of          execution).   Even  as  late as  summary  judgment, for  example,          appellants  had yet to produce  a copy of  the charter membership          contract,  let alone a  copy of the  construction loan agreement,          although the former document presumably was within their control,          and the existence and whereabouts of both documents form the crux                  _________     ___________          of their  alleged contract,  "equitable lien," and  NHCPA claims.          Moreover, given appellees' allegations that the Health Club was a          corporate entity distinct from  the Developer, and never directly                           ________          contracted  with the Bank in  any capacity, FDIC's  claim that no          written "agreement" appeared in the Bank's records on the date of          FDIC's appointment is  far from  frivolous.   The district  court          correctly denied the motion for remand.          B.   Summary Judgment          B.   Summary Judgment               ________________                    A summary judgment ruling  is reviewed de novo, employ-                                                           __ ____          ing  the  same standards  incumbent  on the  district  court, and          resolving all evidentiary  issues in the light most  favorable to          appellants.  Gaskell v. The Harvard Coop. Soc'y, 3  F.3d 495, 497                       _______    _______________________          (1st Cir. 1993).5                                        ____________________               5The district  court  made four  relevant determinations  in          granting summary judgment for  FDIC.  First, appellants generated          no trialworthy  factual claim that appellees  (by acquiring title          to  the real  property  which the  Health  Club leased  from  the                                                          ______                                          8                    At the outset, we note that appellants' claims based on          their  alleged status  as contractual  successors to,  and third-          party  beneficiaries of, the Health Club have been waived, as has          their NHCPA  claim,  because  of their  failure  to  present  any          developed argument on these issues in their appellate brief.  See                                                                        ___          Rhode  Island Hosp.  Trust  Nat'l Bank  v. Howard  Communications          ______________________________________     ______________________          Corp.,  980 F.2d 823, 828 n. 8  (1st Cir. 1992) (issues raised in          _____          appellate brief in  a perfunctory manner, without any  attempt at          developed argumentation,  are deemed  waived).   Moreover, appel-          lants concede that these  issues were "never raised" in  the only          two pertinent memoranda  submitted to the district  court.  Brief          for Appellants at 12; see Vanhaaren v. State Farm Mut. Auto. Ins.                                ___ _________    __________________________          Co., 989 F.2d 1, 4-5 (1st Cir. 1993) (issues raised for the first          ___          time on appeal are deemed waived for failure to preserve).                    Appellants fare  little better on their  only remaining          claim;  viz.,  their  alleged  "lien" on  the  Property,  roughly                  ____          analogous to a state-law  mechanic's lien, assertedly entitled to          priority  over  the legal  title  acquired  by the  Bank  through                                        ____________________          Developer)  became contractual successors  of the Health Club, or          ever acquired the  Health Club's assets  or assumed its  liabili-          ties.   Second, appellants, as alleged third-party beneficiaries,          could not  enforce the  Health Club membership  contracts against          appellees, since  third-party beneficiaries may sue,  but may not          be  sued, for contract damages.  Third, appellants cited no legal          __  ____          authority or  supporting facts  for their novel  state-law theory          that their  charter membership contracts were  akin to mechanic's          liens;  that  is, property  interests  "running"  with the  land.          Specifically, plaintiffs  failed to  show that they  supplied the          Developer  with labor  or materials,  or perfected  their alleged          "lien" as  required under New  Hampshire law.   Finally,  because          appellees were not contractually bound to the terms of the Health          Club contracts, appellees could not have violated the NHCPA.                                          9          foreclosure.  Although appellants  continued to press this highly          dubious claim even at oral argument, as though it were founded on          some  straightforward  extrapolation   from  New  Hampshire  law,          neither at argument  nor in their appellate brief have appellants          articulated  any rationale for their  claim, or cited  to any New                       ___                                          ___          Hampshire  state court  decision offering the  remotest support.6          If a  claimant cannot, or will not, attempt a succinct and cogent          articulation  of its  claim in  its appellate  brief, it  may not                                      __  ___ _________  _____          expect the court to supply it.7                    Even assuming their chameleonic liability theories were          preserved  below,  and raised  on  appeal,  summary judgment  was          warranted.  Appellants premised their "mechanic's lien" theory on          a basic maxim of New Hampshire law:   "It is well settled that if          a party [viz., the Bank]  is present and sees another [viz.,  the                   ___                                           ___                                        ____________________               6Instead, their appellate brief refers to a nine-page memor-          andum of law in opposition to  the Bank's motion to dismiss which                                                    ______ __ _______          appellants submitted  to the New Hampshire  Superior Court almost          three years ago, before FDIC ever removed the case.  But see Fed.                           ______                              ___ ___          R.  App. P. 28(a)(5) (appellate  brief "shall contain the conten-          tions  of the appellant with respect to the issues presented, and          the  reasons therefor,  with citations  to the  authorities . . .          relied on"); cf. Katz v. King, 627 F.2d 568, 575  (1st Cir. 1980)                       ___ ____    ____          ("[T]he argument must appear within the four corners of the brief                                                  ____ _______          filed in this court.   Attorneys cannot circumvent FRAP  28(g) by          incorporating  by reference  another brief  filed in  another fo-          rum.") (emphasis added).   Furthermore, procedural lapses  aside,          nowhere in  their three-year-old state court  memorandum does the          key  phrase in  their  "moving target"  offensive     "mechanic's          lien"    ever appear.               7Appellants further argue  that the superior  court's denial          of appellees' motion to  dismiss Count 1 was somehow  dispositive          on the question whether their "mechanic's lien" analogy is viable          under New Hampshire law.  We disagree.   The state court premised          its ruling  on the ground that  Count 1 stated a  valid claim for          contractual successor  liability only, not  an equitable estoppel          ___________ _________  _________          or mechanic's lien claim.                                          10          Developer or Health Club] sell and convey property [viz., member-                                                    ________  ___          ship contracts] to which he  may assert title, without disclosing          his title, or objecting to  the conveyance, and the sale is  made          with full  knowledge on  his part,  he  will be  estopped by  his          silence  from  setting  up  his title  thereafter."    Corbett v.                                          _____                  _______          Norcross, 35 N.H. 99, 115 (1857) (emphasis added).            ________                    In  their state  court  memorandum, see  supra note  6,                                                        ___  _____          appellants  cite  a  string  of New  Hampshire  cases  containing          general  discussions of  the  equitable estoppel  and good  faith          purchaser doctrines.  Appellants  attempt to predicate the appli-          cability of those  broad doctrines  in the present  case on  four          core allegations:  (1) the Bank knew before the Developer execut-                                               ______          ed  its  mortgage that  the  Developer intended  to  sell charter          memberships to  finance its  repayment of the  construction loan;          (2) the construction loan agreement contained a provision wherein          the  Bank  "agreed" to  accept  club membership  fee  proceeds in          repayment of the loan; (3) after June 1988, the  Bank learned (or          should have  learned) that the Developer  had promised appellants          it would establish a segregated trust fund to hold all membership          fees,  and that the Developer  willfully failed to  abide by this          promise; and (4) the Bank knowingly received $200,000  in member-          ship fee proceeds in repayment of its loan.8                                        ____________________               8Appellants  now  concede  that  their  charter  memberships          cannot meet the literal  requirements of a mechanic's lien  under                          _______          New  Hampshire law,  since appellants  neither supplied  labor or          materials, nor perfected their  alleged "liens."  See  supra note                                                            ___  _____          5.  Appellants present no argumentation or authority  which would          indicate that perfection is a dispensable requisite to mechanic's          lien priority over  a duly recorded mortgage lien.  See N.H. Rev.                                                              ___                                          11                    The fundamental problem for appellants is their failure          to produce  competent evidence  supporting these  crucial factual          allegations.  See Town of Nottingham v. Lee Homes, Inc., 118 N.H.                        ___ __________________    _______________          438, 442 (1978) ("the  party asserting [equitable] estoppel bears          the  burden of proving it");  see also Celotex  Corp. v. Catrett,                                        ___ ____ ______________    _______          477 U.S. 317,  322 (1986)  (where nonmovant under  Rule 56  would          bear the  burden of proof at trial, its failure to produce suffi-          cient evidence  to generate a trialworthy  issue warrants summary          judgment).   Most conspicuously,  appellants have yet  to proffer          the alleged charter  membership contracts, presumably  accessible          to  them without resort to  discovery.9  Nor  have they presented                   _______ ______ __  _________                                        ____________________          Stat.  Ann.   447:10 (1993).  Thus, appellants' Bateman exception                                                          _______          claim, see supra at p. 6, fails as a matter of law.                 ___ _____               9Even  if they had  presented competent Rule  56 evidence on          these   factual  matters,  appellants   would  still  face  three          considerable  hurdles on  the merits.   See  also note  10 infra.                                                  ___  ____          _____          First,  unlike  all of  the aggrieved  parties  in the  cited New          Hampshire cases,  appellants have not made  the threshold showing          that the law of  any state recognizes health club  memberships as          "property"  interests.  The  only case appellants  cite is wholly          unsupportive.   See Silver  Hills Country  Club v. Sobieski,  361                          ___ ___________________________    ________          P.2d 906,  907  (Cal. 1961)  (considering  analytically  distinct          question whether the sales  of club memberships were "securities"          subject to regulation California's Corporate Securities Act).               Second, the  New Hampshire  cases appellants cite  involve a          narrow and  distinctive species  of fraud; namely,  omissions and          other misleading conduct  (e.g., silence, execution of  releases,                                     ____          sharing in sale  proceeds) by  a defendant which  lead the  party          acquiring  the property to believe that the defendant neither has          nor  will  assert  any  claim, superseding  title,  or  competing          interest in the property conveyed.  See, e.g., New Hampshire Sav.                                              ___  ____  __________________          Bank v. National Rockland  Bank, 93 N.H. 326, 329  (1945) (estop-          ____    _______________________          ping  executor of  decedent  owner of  passbook savings  account,          where  decedent had  made  inter vivos  transfer  of passbook  to                                     _____ _____          daughter-in-law, along with a  withdrawal form endorsed in blank,          and  daughter-in-law pledged passbook  as collateral for personal          loan).   Appellants' promised evidence  would not  show that  the          Bank concealed its  interest in the Property, nor  can appellants               _________      ________          plausibly dispute  that they  were at  all times on  constructive                                          12          any other evidence to  rebut appellees' proof,  in the form of  a          sworn  affidavit by  the Bank's  former vice-president,  that the          Developer did  not directly contract with  appellants, but leased          _________                                                  ______          the health club  facilities to a distinct corporate entity (i.e.,                                                                      ____          the Health  Club)  which in  turn  entered into  club  membership                                   __  ____          contracts with  the appellants.   Further, appellants'  sole evi-                                                                  ____          dence of  the alleged  agreements and communications  between the          Bank and the  Developer is an affidavit by  appellants' attorney,                                                                  ________          generally relating  evidence appellants  would present  at trial.                                                                  __ _____          But  see, e.g., Garside v. Osco Drug,  Inc., 895 F.2d 46, 49 (1st          ___  ___  ____  _______    ________________          Cir. 1990) ("[A]  mere promise to produce  admissible evidence at          trial does not suffice to thwart the summary judgment ax.").  The          affidavit  is unaccompanied by documentary  support.  See Fed. R.                                                                ___          Civ. P.  56(e); 10A Charles A. Wright, Arthur R. Miller & Mary K.          Kane, Federal Practice  and Procedure    2722, at  56-58 (2d  ed.                _______________________________          1983) (averments made  in Rule  56 affidavit  to unattached  con-          tracts and  documents may  be sufficient to  establish a  triable          issue as  to their existence,  but not as  to their terms).   Nor                                                              _____          does  the affidavit  present any other  basis for  evaluating the          affiant-attorney's personal knowledge of contractual transactions                                        ____________________          notice of the Bank's recorded mortgage.                 Finally,  even if the Bank  might be estopped from asserting                                 ___ ____          its mortgage and  power of sale, appellants  offer no explanation          as to how such an estoppel would insulate them from the  defenses          of  the Bank's  successors      particularly  the FDIC  with  its                          __________          D'Oench Duhme defense    absent evidence that these grantees knew          _____________                                                ____          of the  facts giving rise  to a bar  to the  Bank's claim.   See,                  _____                                                ___          e.g., International Chimney Corp. v. 26  West Spring St. Assocs.,          ____  ___________________________    ___________________________          561  N.Y.S.2d 933,  934 (App.  Div. 1990)  ("[E]quitable estoppel          should be  applied with . . . even greater caution when sought to                                             _______ _______          be invoked against a subsequent owner.") (emphasis added).                               __________ _____                                          13          between  the Bank and the Developer, the Developer and the Health          Club,  or the Health Club and appellants.  Cf. Postscript Enters.                                                     ___ __________________          v. City of Bridgeton, 905 F.2d 223, 226 (8th Cir. 1990) ("'Attor-             _________________          neys' affidavits not based upon personal knowledge have been held          not  to comply with Rule 56(e).'") (citing Kamen v. American Tel.                                                     _____    _____________          & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)).10          __________                    The district court judgment must be affirmed.                    Affirmed.                    Affirmed.                    ________                                        ____________________               10Nor does the record indicate that appellants ever request-          ed  "a continuance to permit affidavits to be obtained or deposi-          tions to  be taken or  discovery to  be had."   Fed.  R. Civ.  P.          56(f).  See,  e.g., De la Torre v. Continental  Ins. Co., 15 F.3d                  ___   ____  ___________    _____________________          12, ___ (1st Cir. 1993)  [1994 U.S. App. LEXIS 1502, at  p*9 (1st          Cir. Jan. 31, 1993)].                                          14
