
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-2335                             DONALD M. BERKOVITZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                            HOME BOX OFFICE, INC., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                              _________________________               Joseph L.  Kociubes, with whom Peter J. Mancusi and Bingham,               ___________________            ________________     ________          Dana & Gould were on brief, for appellants.          ____________               Kim  J. Landsman,  with whom  Carin G.  Reynolds, Patterson,               ________________              __________________  __________          Belknap, Webb  &  Tyler  LLP,  Andrea J.  Pollack,  Cornelius  J.          ____________________________   __________________   _____________          Moynihan,  Jr., and Peabody &  Brown were on  brief, for appellee          ______________      ________________          Home Box Office, Inc.               Cornelius  J.  Moynihan, Jr.,  with  whom  Peabody &  Brown,               ____________________________               ________________          Joseph  J.  Santora,  Leonard  F.  Lesser,  and  Schneck  Weltman          ___________________   ___________________        ________________          Hashmall  &  Mischel LLP,  were  on brief,  for  appellees Viacom          ________________________          International, Inc. and MTV Networks.                              _________________________                                    July 22, 1996                              _________________________                    SELYA,  Circuit  Judge.   In  this  appeal,  plaintiff-                    SELYA,  Circuit  Judge.                            ______________          appellant  Donald M.  Berkovitz challenges  the district  court's          spontaneous entry of judgment in favor of the defendants Home Box          Office, Inc.  (HBO)  and Viacom  International,  Inc.  (Viacom).1          Although  we   applaud  the  district   court's  innovative  case          management and  its Briarean  efforts to  refine  the issues  for          trial,  we believe  that in  one crucial  respect the  court went          awry.    Consequently, we  vacate  the  judgment  and remand  for          further proceedings.          I.  FACTUAL PREDICATE          I.  FACTUAL PREDICATE                    We frame the facts in the aspect most beneficial to the          party  against   whom  the  district   court  entered   judgment,          consistent  with record  support.   See, e.g.,  Quaker  State Oil                                              ___  ____   _________________          Refining Corp. v. Garrity Oil Co., 884 F.2d  1510, 1513 (1st Cir.          ______________    _______________          1989).                    In early 1984, Berkovitz  hit upon an idea for  a cable          television channel.   He  dubbed this concept  "The Entertainment          Network" (or, for short, "the TEN plan").  The concept envisioned          a  round-the-clock  commercial  television  channel  highlighting          lesser-known musical and comedic acts supplemented by talk shows,          movies,  and other  staples.   The  concept embodied  interactive          features through which the  viewing audience could participate in                                        ____________________               1We   omit  particularized  reference  to  two  parties  who          necessarily  stand or  fall  with parties  whom  we have  already          mentioned.   The  omitted  parties are  plaintiff  KDK, Inc.  (an          inactive  corporation controlled by  Berkovitz) and defendant MTV          Networks (a wholly-owned subsidiary  of Viacom).  Notwithstanding          this  exercise of literary  license, our opinion  is binding upon          all the litigants.                                          2          contests and offer programming suggestions telephonically.                    In February 1985,  Berkovitz offered a copy  of the TEN          plan  to an HBO vice  president, Larry Carlson,  who accepted the          offer.  He then  sent the document (which, like  all other copies          of the TEN plan mentioned herein, bore  the legend "confidential"          on its cover page) to Carlson.  Approximately three months later,          HBO disclaimed any interest and returned the submission (although          Berkovitz intimates that  HBO retained  a copy).   In July  1987,          Berkovitz  attempted to  interest Viacom  in the  TEN plan.   The          chairman's secretary suggested that he forward a copy to  Viacom.          He claims to  have done  so (on  the express  condition that  the          submission  was "for [the chairman's] eyes only."  He also claims          to  have furnished extra copies  at Viacom's request  and to have          met with an MTV vice-president, Lee Masters,  anent the proposal.          Although Masters "raved" about  certain aspects of the plan,  the          meeting came to naught.                    Little daunted, Berkovitz resumed his courtship of HBO.          During the  fall of  1987 he  met with Carlson,  who,   Berkovitz          maintains, perused the TEN  plan, praised it, agreed to  keep its          contents in confidence,  and led  him to believe  that HBO  would          help launch the  new enterprise  and share the  fruits with  him.          Despite   these   encomia,  and   several   subsequent  telephone          conversations in the same vein, HBO never followed through.2                                        ____________________               2Not  surprisingly,  Carlson  disputes  this  account.    He          testified during  a deposition that  he found both  Berkovitz and          the  TEN plan lacking in  focus; hence, he  refrained from making          any commitments.                                          3                    HBO  inaugurated "The  Comedy Channel"  in November  of          1989.    Viacom  shortly followed  suit  with  "Ha!   The  Comedy          Network."   Late  in  1990  the  two  merged  to  become  "Comedy          Central."  Berkovitz  insists that these offerings all drew their          inspiration from  the TEN plan, and  that they did so  in blatant          disregard of his proprietary rights.          II.  TRAVEL OF THE CASE          II.  TRAVEL OF THE CASE                    The  procedural  aspects  of  this  litigation  are  of          decretory significance.  We divide our account into two parts.                               A.  Initial Proceedings.                               A.  Initial Proceedings.                                   ___________________                    Invoking  diversity  jurisdiction,  28  U.S.C.    1332,          Berkovitz filed  suit in federal  district court  on January  28,          1991.    Judge Skinner  drew the  case.   In  the  complaint, the          plaintiff alleged that HBO and Viacom pirated his concept without          compensating him,  unjustly enriched  themselves at  his expense,          breached implied-in-fact contracts  to pay him  if they used  the          TEN  plan   to  productive  ends,  and   committed  unfair  trade          practices.  The defendants denied these allegations.                    The novelty (or lack  thereof) of the TEN plan  and its          constituent  elements   soon  became   a   protuberant  bone   of          contention.  The defendants, positing that New York's substantive          law governed, maintained  that Berkovitz had to prove the novelty          of his idea in  order to recover  under any actionable theory  of          the  case.    Berkovitz, positing  that  the  substantive  law of          Massachusetts  governed, attempted  to parry  this thrust  on two          levels:   he asserted both that  his idea was in  fact novel, and                                          4          that  in all events a plaintiff whose idea was misappropriated in          contravention  of  an  implied-in-fact contract  need  not  prove          novelty in order to recover.                    In time,  the  defendants moved  for summary  judgment.          Judge  Skinner considered  the  parties' arguments  and  reserved          decision.   In a rescript  dated May 18,  1994, he held  (1) that          Massachusetts  law  supplies  the  rule  of  decision,  (2)  that          Massachusetts  does not  require a  showing  of novelty  when the          plaintiff alleges  the existence  of a  contractual relationship,          and (3) that the defendants' motions for summary judgment  should          therefore  be denied on all but the unfair trade practices claim.          The court entered an appropriate order.                            B.  The Pretrial Conferences.                            B.  The Pretrial Conferences.                                ________________________                    After Judge Skinner elected  senior status, many of his          cases were redrawn.  Judge Keeton assumed responsibility for this          case   in  mid-1994.      Although  the   defendants  moved   for          reconsideration  of  the earlier  denial  of  brevis disposition,                                                        ______          Judge Keeton did not act upon these motions.  He instead convened          a series of pretrial conferences in a commendable effort to bring          matters  to a  head.  During  the last  four conferences  (all of          which  took place in 1995), the  judge concentrated on clarifying          and delimiting the issues  to be tried.  Because the  events that          transpired at  these conferences shed considerable  light on this          appeal, we set out a brief chronology.                    1.   The March  21 Conference.   The first  of the four                    1.   The March  21 Conference.                         ________________________          conferences  focused  primarily  on  the  parties'  agreement  to                                          5          bifurcate  the  trial, separating  the  issues  of liability  and          damages.    But Judge  Keeton  also  seized this  opportunity  to          instruct the parties to spell out their legal  theories (avoiding          forensic jargon),  and directed  them to  develop a verdict  form          suitable for submission to a jury.3                    2.   The April 27  Conference.  At  the next conference                    2.   The April 27  Conference.                         ________________________          the  parties wrangled over a  proposed verdict form.   The debate          led  Judge Keeton  to remark  that "we're  going to  have to  get          specific" about what elements of the TEN plan were "substantially          used" by the defendants.  The judge explained that this degree of          particularization would  assist  in "structuring  the claims  and          defenses  so  that  I  can  understand  them,  so  the  jury  can          understand  them, [and]  so that  [the litigants]  can understand          each other."                    3.  The June 1 Conference.  At the third conference the                    3.  The June 1 Conference.                        _____________________          judge cautioned that  he would not allow the jury  to consider "a          fuzzy claim"  and urged the plaintiff's  lawyer to "communicat[e]          to me  clearly . . . your legal  and factual theory."  After some          additional  discourse (during which the defendants unsuccessfully          sought  leave  to  file  fresh  motions  for  summary  judgment),          plaintiff's counsel  reformulated his position.   He pledged that                                        ____________________               3In the course of  this conference, plaintiff's lead counsel          made  his first attempt to spell out his implied contract theory.          He suggested that there are  several elements:  "one is,  did Mr.          Berkovitz come up with the idea? . . .  Two, did he submit  it to          the defendants?  Three is, did they use  it? . . .  Four is,  did          he submit it . . . to them in a context in which one can imply  a          promise to  pay for it if  they use it? .  . .  And  then if [the          jurors] answer all of those correctly, I would say under that one          theory of the case, then you go to damages . . . ."                                          6          he  would prove  (1) an implied  agreement between  Berkovitz and          each of  the defendants  for confidential  disclosure of  the TEN          plan, and  (2)  the  defendants'  appropriation of  the  plan  in          derogation  of this agreement.   The court reiterated its concern          that this reformulation did not  enumerate which elements of  the          plan  were novel  and  which were  used  by the  defendants.   In          addition,  the  court  asked  the  plaintiff to  list  the  legal          elements of  his implied-in-fact contract claim,  and plaintiff's          counsel agreed to try again.                    4.   The July 18 Conference.   The plaintiff's outright                    4.   The July 18 Conference.                         ______________________          abandonment  of any cause of action based on the putative novelty          of any of the  elements contained in  the TEN plan dominated  the          early stages of the final conference.  Novelty aside, the defense          maintained  that  the  plaintiff  still  had  not  specified  the          elements  of his  remaining implied  contract claim.4   The court          reaffirmed its desire  that Berkovitz state  his cause of  action          with  particularity.    Noting  that  Berkovitz's  proposed  jury          instructions, if given, would  require the jury to find  that HBO          and/or Viacom made "substantial  use" of the TEN plan,  the court          asked Berkovitz to specify what this portended.                    More   discussion  ensued,   but  the   judge  remained          dissatisfied;  he reminded  Berkovitz's counsel  that he  had the                                        ____________________               4Following the parties' lead,  we use "implied contract" and          words of  like import as a  rubric to cover not  only plaintiff's          implied  contract claim but also his embedded claim for breach of          fiduciary duty.   Both claims  have a common  denominator:   they          require proof of an agreement or duty to hold Berkovitz's idea in          confidence, and to compensate him for its unauthorized use.                                          7          authority to require a plaintiff to state with particularity  the          theory underpinning his  claim, and warned that  he might dismiss          the  case  because  Berkovitz  had  failed  to  comply  with  the          particularization  orders.    The  defendants  moved  orally  for          summary judgment on  the ground that all the elements  of the TEN          plan were in the public domain.  The court  expressed no interest          in strolling down this road, and the oral motions languished.                    In a last-ditch effort  to satisfy the court's demands,          Berkovitz's attorney again attempted  to articulate his theory of          the  case.    The  lawyer delineated  what he  termed Berkovitz's          position "from day one":  Berkovitz gave the defendants copies of          the TEN  plan under circumstances  in which  a reasonable  person          would  expect compensation if they  (or either of  them) used his          work product.  Thus, if a defendant had  made some beneficial use          of some part  of that  document, Berkovitz would  be entitled  to          relief.  The court described this iteration of Berkovitz's theory          as postulating  an  "all factors"  approach  because it  did  not          differentiate  among the elements of  the TEN plan  (e.g., it did          not single  out which  elements  the plaintiff  claimed had  been          misappropriated and used).  After  expressing its belief that the          approach probably was "incorrect  as a matter of law,"  the court          entered  an interlocutory  judgment for  the defendants  but gave          Berkovitz "time for filing something more."                    5.     The  Court's  Final  Order.    Berkovitz     who                    5.     The  Court's  Final  Order.                           __________________________          apparently believed that the  court had entered the interlocutory          judgment  either   as  a  sanction  for   failure  adequately  to                                          8          particularize  his claim  or because it  found the  "all factors"          approach legally infirm    moved for reconsideration.   The court          denied the motion and  entered final judgment.  See  Berkovitz v.                                                          ___  _________          HBO, 1995 WL 791939,  at *10 (D. Mass.  Oct. 23, 1995).   In this          ___          order the court clarified the basis on which the judgment rested;          in its view, Berkovitz's claim lacked factual grounding.  See id.                                                                    ___ ___          at  *5.    Consequently,   the  court  terminated  the   case  on          substantive grounds.  See id. at *9.                                ___ ___          III.  DISCUSSION          III.  DISCUSSION                    Our  analysis  proceeds  in  three steps.    First,  we          examine the lower  court's final  order and explain  why we  deem          that order to be a species of sua sponte summary judgment.  Next,          we delineate the  legal standards that pertain to such judgments.          Finally, we dispose of the appeal.                 A.  Characterizing the District Court's Final Order.                 A.  Characterizing the District Court's Final Order.                     _______________________________________________                    We find no fault with the judge's decision to convene a          series of  pretrial conferences  devoted largely to  refining the          issues  and ascertaining  which issues  were fit  for the  jury's          consumption.   Federal district  courts enjoy wide  discretion in          their crafting of  the pretrial process, see,  e.g., Cleveland v.                                                   ___   ____  _________          Piper  Aircraft Corp.,  985  F.2d 1438,  1450 (10th  Cir.), cert.          _____________________                                       _____          denied, 114 S. Ct. 291 (1993); Jensen v. Frank, 912 F.2d 517, 524          ______                         ______    _____          (1st Cir. 1990), and requiring parties to particularize claims or          defenses falls well within  the compass of that discretion.  In a          related vein, courts may use case management tools to advance the          important purpose of affording "the opposing party fair notice of                                          9          the  claims asserted against him  and the grounds  on which those          claims rest."  Rodriguez  v. Doral Mortgage Corp., 57  F.3d 1168,                         _________     ____________________          1171 (1st Cir. 1995).                    In  this instance,  the court  made adroit  use  of its          powers and  succeeded in  winnowing the plaintiff's  claims until          only  one claim remained   the implied contract claim premised on          the "all factors" approach.   There are three  possibilities that          might explain why  the court entered judgment in  the defendants'          favor on this last claim:  (1) the claim may have depended upon a          flawed legal theory, or (2) it  may have been stated too  loosely          (in defiance of the court's  particularization orders), or (3) it          may  have lacked a sufficient evidentiary  predicate.  Though the          court criticized  the "all factors" approach  in various respects          at various times, careful perscrutation of the  final order rules          out two of these  possibilities.  As to legal  insufficiency, the          court  stated that  it had  "[a]ssum[ed], without  deciding, that          [the  "all  factors"  approach  upon  which  Berkovitz's  implied          contract claim depends] is indeed a correct interpretation of the          law  in Massachusetts."   Berkovitz,  supra, at  *5.   As to  the                                    _________   _____          particularization orders, the court vouchsafed that the plaintiff          did not violate these orders by failing to furnish a more precise          statement of his implied contract claim.  See id. at *9.                                                    ___ ___                    This   leaves  the  third   possibility:    evidentiary          insufficiency.  Unlike the other  possibilities, that explanation          is  strengthened by the  language of the final  order.  The court          wrote "that the plaintiff  has provided no evidence from  which a                                          10          jury could decide  . . . that in  this case factual circumstances          supporting . . .  a duty [of confidentiality] arose at some point          during the negotiations  of the parties."  Id. at  *5.  Along the                                                     ___          same lines, the court  added that "[a] jury could  not reasonably          find, on this evidence, that factual conditions prerequisite to a          contractual  or fiduciary  duty  existed  in  this  case."    Id.                                                                        ___          Consequently,   Berkovitz's  implied   contract  claim   did  not          "survive[] examination on the merits."  Id. at *9.                                                  ___                      We  will not  paint the  lily.   Since "the  district          court speaks to us primarily through its decrees," Advanced  Fin.                                                             ______________          Corp. v.  Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir. 1984),          _____     _____________________          the final order itself is the most likely source of enlightenment          in  our quest to understand its nature.   Here, the order, fairly          read,  discounts  the other  possibilities  and  disposes of  the          plaintiff's implied contract claim on a substantive ground:  lack          of evidence.  Accordingly, we are constrained to characterize the          court's  action as a spontaneous grant of summary judgment rather          than as a  dismissal for  either legal insufficiency  or want  of          compliance with case management orders.                   B.  Elucidating the Applicable Legal Standards.                   B.  Elucidating the Applicable Legal Standards.                       __________________________________________                    It is apodictic that district courts have the  power to          grant summary judgment sua sponte.  See Celotex Corp. v. Catrett,                                              ___ _____________    _______          477 U.S. 317, 326 (1986); Stella v. Tewksbury, 4 F.3d 53, 55 (1st                                    ______    _________          Cir. 1993); Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555,                      _____________________    ____________          1560  (1st  Cir.  1989).    Properly  deployed,  that  power  can          complement  the courts'  case management  authority.   After all,                                          11          pretrial conferences aid district  courts in "the formulation and          simplification  of  the  issues,  including  the  elimination  of          frivolous claims or defenses."  Fed. R. Civ.  P. 16(c)(1).  Since          this  process  is designed  to  promote  efficiency and  conserve          judicial resources, see In re Two Appeals, 994 F.2d 956, 965 (1st                              ___ _________________          Cir.  1993),  "[t]here  is   no  reason  to  require  that   [the          elimination of non-trialworthy claims]  await a formal motion for          summary judgment."  Fed. R. Civ. P. 16(c)(1) advisory committee's          note to  1983 amendment; accord  Aetna Cas. & Sur.  Co. v. P  & B                                   ______  ______________________    ______          Autobody, 43 F.3d  1546, 1568 (1st Cir.  1994).  Thus,  when "the          ________          pretrial  conference  discloses that  no  material  facts are  in          dispute  and that the undisputed facts entitle one of the parties          to  judgment  as a  matter of  law,"  Portsmouth Square,  Inc. v.                                                ________________________          Shareholders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985),          _____________________________          the  court may  dispose of  the entire  case by  granting summary          judgment sua sponte.5   See  Capuano v. United  States, 955  F.2d                                  ___  _______    ______________          1427, 1432 (11th Cir. 1992); Portsmouth Square, 770 F.2d at 869.                                       _________________                    Though a district court  may enter summary judgment sua          sponte at, or in consequence of, a pretrial conference, the court          must ensure that  the targeted party has  an adequate opportunity          to dodge the bullet.  To  this end, we have placed two conditions          on  unbesought  summary  judgments.    First,  a  district  court          ordinarily may order summary judgment on its  own initiative only                                        ____________________               5A district  court also  may grant partial  summary judgment          sua  sponte, removing some (but  fewer than all)  of the parties'          claims or defenses from the case.  See, e.g., Hubbard  v. Parker,                                             ___  ____  _______     ______          994  F.2d 529,  530  (8th Cir.  1993);  National Expo.,  Inc.  v.                                                  _____________________          Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir. 1987).          ______________________                                          12          when  discovery is  sufficiently advanced  that the  parties have          enjoyed  a reasonable  opportunity to  glean the  material facts.          See  Stella, 4 F.3d  at 55;  Jardines Bacata,  878 F.2d  at 1561.          ___  ______                  _______________          Second, the court may  enter summary judgment sua sponte  only if          it first gives the targeted party appropriate notice and a chance          to present its evidence on the essential elements of the claim or          defense.  See Celotex, 477 U.S. at 326; see also Jardines Bacata,                    ___ _______                   ___ ____ _______________          878 F.2d at 1561 ("`Notice' in this context means that the losing          party .  . .  received a  fair opportunity to  put its  best foot          forward.").                    These strictures are not peculiar to sua sponte summary          judgments, but, rather, mirror the general principles that govern          all  motions for  summary judgment.   See  Stella, 4  F.3d  at 56                                                ___  ______          (noting that "it is well settled in this circuit that all summary          judgment proceedings,  including those initiated by  the district          judge,  will be  held  to the  standards  enunciated in  Rule  56          itself"); Quaker  State, 884  F.2d at 1513  (explaining that  the                    _____________          district  court's power  to  order summary  judgment  on its  own          initiative must be exercised  "according to the rigorous protocol          of  Rule 56").   This means, of  course, that a  nisi prius court          must give the  targeted party at least  ten days within  which to          proffer  affidavits or other evidence  in response to the court's          specific concerns.  See Stella, 4 F.3d at 56.                              ___ ______                    Appellate   review  is   equally   unaffected  by   the          spontaneous  nature of  the trial  court's action.   As  with any          other grant  of summary  judgment, the court  of appeals  affords                                          13          plenary  review  to  a   decision  granting  sua  sponte  summary          judgment,  and reads the record  in the light  most hospitable to          the targeted party.  See Quaker State, 884 F.2d at 1513.                               ___ ____________                             C.  Applying the Standards.                             C.  Applying the Standards.                                 ______________________                    These standards inform the disposition of this  appeal.          Having  scoured the  record, we  believe that the  district court          failed to give the plaintiff adequate notice of the basis for the          action that the  court ultimately took, and that,  therefore, the          judgment cannot stand.  We explain briefly.                    When  a court  charts a  procedural route,  lawyers and          litigants are entitled to rely  on it.  A court cannot  alter its          bearings mid-course  without signalling the  impending change  to          the parties.   See Foster-Miller,  Inc. v. Babcock  & Wilcox,  46                         ___ ____________________    _________________          F.3d  138,  148-49  (1st  Cir.  1995)  (pointing  out  that  this          principle is  especially pertinent "[w]hen judges  elect on their          own  initiative  to  use  innovative  methods  in  an  effort  to          accelerate  the progress  of a  case"); Stella,  4 F.3d  at 55-56                                                  ______          (applying  this  principle to  a  sua  sponte summary  judgment).          Here,  the judge  obviously understood  the rule,  see Berkovitz,                                                             ___ _________          supra, at *2 (acknowledging the  court's obligation to afford "an          _____          opportunity  for counsel  opposing  the judgment  to proffer  all          relevant and  admissible evidence"), and apparently  thought that          he had honored it.  See id. at *1 (describing the  particularity-                              ___ ___          of-claim  orders  as requiring  Berkovitz "to  proffer admissible          evidence sufficient to support  the findings necessary to satisfy          the elements of  [his] legal  theory"); id. at  *5 (stating  that                                                  ___                                          14          Berkovitz  was "given  an opportunity  to proffer  any additional          evidence  that might be material").   Yet the  record simply does          not bear out the court's recollection.                    One part  of the problem relates  to the particularity-          of-claim  orders.   The  court did  not  reduce those  orders  to          writing,  but   delivered  them   ora  sponte  at   the  pretrial                                            ___  ______          conferences   that  we   have  chronicled.      Nonetheless,  the          conferences  took place in the  presence of a  court reporter and          transcripts  now  have  been  prepared.6   Whatever  the  court's          intentions, its transcribed words do not require the plaintiff to          proffer evidence of the existence of the implied contracts.                    Another part of the problem is that the  district court          appears to have  changed course without giving the targeted party          sufficient forewarning.  When the court informed the plaintiff at          the  penultimate  (June  1) conference  that  it  might  enter an          adverse judgment,  it linked this possibility  not to evidentiary          insufficiency but to  the plaintiff's  failure satisfactorily  to          comply with  the particularity-of-claim orders.   See id.  at *3.                                                            ___ ___          At  the last  conference  (July  18)  the court  reinforced  this          linkage by discussing  its entry of an  interlocutory judgment in          tandem  with  its  comments   on  the  plaintiff's  inability  to          articulate  avenues  of legal  relief  beyond  the "all  factors"          approach.  See,  e.g., id.  In its  written opinion, however, the                     ___   ____  ___                                        ____________________               6While the four conferences listed in our chronology were on          the  record,  the court  convened at  least one  other conference          (November 21,  1994) for which  no transcript has  been supplied.          The clerk's notes  on the docket sheet regarding  this conference          are unilluminating.                                          15          court veered in  a different  direction.  It  explained that  the          claim  predicated on  the "all  factors" approach  would not  fly          because "the plaintiff has provided no evidence from which a jury                                                 ________          could decide, under any plausible interpretation of Massachusetts          cases, that in this case factual circumstances  supporting such a                                   _____________________          duty  [of  confidentiality]  arose   at  some  point  during  the          negotiations of the  parties."   Id. at  *5 (emphasis  supplied).                                           ___          Prior to  making  this ruling,  the  court had  neither  informed          Berkovitz that it was considering a judgment based on evidentiary          insufficiency nor invited him to marshal and present his proof in          respect to the  existence vel non  of an  implied contract.7   To                                    ___ ___          the contrary,  the court's  pre-ruling statements pointed  in the          opposite  direction.    We cite  two  examples.   At  the  June 1          conference plaintiff's counsel strove  to embellish the  elements          of his  client's implied contract  claim.  The  court interrupted          him,  stating:   "I don't want  to talk  about the  proof at this          point.  I just want to talk about the legal elements. . . ."  The          second  example is  drawn from  the July  18 semble;  the court's          declaration  on  this occasion  that  the  plaintiff's claim  was          "incorrect as a  matter of law"  tended to render any  proffer of                                        ____________________               7We note  that all  parties initially  seem to have  assumed          that the trial court did not premise the sua sponte judgment on a          dearth of  evidence.  The plaintiff's  motion for reconsideration          makes  manifest Berkovitz's  belief that the  court defenestrated          the  case either  as  a sanction  or  because the  "all  factors"          approach  failed as  a matter  of law.   By  the same  token, the          defendants' oppositions to that motion did not attempt to justify          the  judgment   on  the   ground  that  there   were  evidentiary          deficiencies  related to  the plaintiff's  proof  of one  or more          contractual relationships.                                          16          evidence supporting that claim nugatory.                    The question that confronts us  is not whether the "all          factors" approach is (or  is not) legally sound.   Similarly, the          question is not whether there is (or is not) adequate evidence in          the  record  to  defeat  summary judgment  on  the  "all factors"          approach.   The question, rather,  is whether the  court gave the          plaintiff  a meaningful  opportunity  to cull  the best  evidence          supporting his  position, and to present  that evidence, together          with developed legal argumentation, in opposition to the entry of          summary judgment.  See Stella, 4  F.3d at 55; Bonilla v.  Nazaro,                             ___ ______                 _______     ______          843 F.2d 34,  37 (1st Cir. 1988).  On this  record, we think that          the opportunity   if one existed   was too poorly defined.8                    Nor  are  we comfortable  shifting  the  blame for  the          apparent  miscommunication to the  plaintiff.   To be  sure, this          court  from time to time has refused to permit appellants to take          advantage  of supposed oversights that had not been called to the          district  court's  attention  by  way  of  a  timeous  motion  to          reconsider.   See, e.g., United States v. Schaefer, ___ F.3d ___,                        ___  ____  _____________    ________                                        ____________________               8There  are four reasons why it is not a satisfactory answer          to  suggest that the plaintiff had an opportunity to proffer this          evidence  in connection  with  the defendants'  original Rule  56          motions.   First,  the  defendants forswore  any reliance  on the          insufficiency  of such  evidence when  they filed  those motions.          Second, Judge Skinner  neither focused on nor purported to decide          whether  the plaintiff could prove  the existence of  one or more          implied contracts,  but, rather, assumed that  the defendants had          entered into such  contracts.   Third, the contours  of the  case          thereafter  changed  dramatically,  and Judge  Keeton  explicitly          declined to rule on the defendants' pending motions to reconsider          Judge  Skinner's order.  See  Berkovitz, supra, at  *3.  Finally,                                   ___  _________  _____          the defendants' reconsideration motions (like their original Rule          56  motions)   also  assumed  the  existence   of  the  requisite          contractual relationship.                                          17          ___ n.9 (1st Cir. 1996) [No.95-2342, slip op. at 19 n.9]; Grenier                                                                    _______          v. Cyanamid Plastics,  Inc., 70  F.3d 667, 678  (1st Cir.  1995);             ________________________          VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 4-5 (1st          _________    ______________________________          Cir.   1993).    But  here,  the  plaintiff  filed  a  motion  to          reconsider,  raising all the  grounds that  were apparent  at the          time.    It  was  not  until  the  district  court ruled  on  the          reconsideration  motion that  the  spotlight  suddenly  swung  to          evidentiary insufficiency.    While the  plaintiff  theoretically          might  have filed  a second  motion for  reconsideration at  that                               ______          time,  the appeal  period  was  running;  and, moreover,  we  are          reluctant to fault a  suitor who, like Berkovitz, chooses  not to          ask  a  trial  court more  than  once  to  reconsider an  adverse          decision.  Discretion,  after all,  is often the  better part  of          valor.                    We need  go no further.   It may be that,  in the final          analysis, the plaintiff cannot muster enough evidence to ward off          a  properly advertised summary judgment    but he  is entitled to          make the  attempt.  Since the record fails to show that Berkovitz          had a meaningful opportunity  to do so, the district  court's sua          sponte entry of summary judgment cannot stand.                    The judgment is  vacated, and the  case is remanded  to                    The judgment is  vacated, and the  case is remanded  to                    _______________________________________________________          the district  court for further proceedings  consistent with this          the district  court for further proceedings  consistent with this          _________________________________________________________________          opinion.  Costs in favor of the plaintiff.          opinion.  Costs in favor of the plaintiff.          _______   _______________________________                                          18
