
USCA1 Opinion

	




          March 1, 1995     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 94-1877                        EXECUTIVE LEASING CORPORATION, ET AL.,                                     Appellants,                                          v.                        BANCO POPULAR DE PUERTO RICO, ET AL.,                                      Appellees.                                     ____________                                     ERRATA SHEET               The  opinion of this court  issued on February  27, 1995, is          amended as follows:               On the cover sheet  of the opinion strike the  line stating:          "[Hon. Hector  M. Laffitte, U.S.  District Judge]" and  insert in                                      ____________________          its place the following:               "[Hon. Justo Arenas, U.S. Magistrate Judge.]"                                    _____________________                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1877                        EXECUTIVE LEASING CORPORATION, ET AL.,                                     Appellants,                                          v.                        BANCO POPULAR DE PUERTO RICO, ET AL.,                                      Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Justo Arenas, U.S. Magistrate Judge]                                          _____________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Harold D. Vicente,  with whom Vicente &  Cuebas were on  brief for            _________________             _________________        appellant.            Nestor  Duran-Gonzalez,  with  whom Jaime  E.  Toro-Monserrate and            ______________________              __________________________        McConnell Valdez were on brief for appellee.        ________________                                 ____________________                                  February 27, 1995                                 ____________________                      BOWNES,  Senior Circuit  Judge.    The  plaintiffs,                      BOWNES,  Senior Circuit  Judge.                               _____________________            Executive Leasing Corporation, Manuel Gonzalez Gierbolini and            Luz Iraida Gonzalez  (both personally and on  behalf of their            conjugal  partnership), allege that defendants Banco de Ponce            (now Banco  Popular de Puerto Rico, as successor-in-interest)            and  BanPonce  Corporation  (collectively, "Banco")  violated            various provisions of the Bank Holding Company Act (BHCA), 12            U.S.C.    1971  et seq.,  and Puerto Rico  law in their  loan                            __ ____            transactions with the plaintiffs.  The district court entered            summary judgment for  the defendants  on the  BHCA claim  and            dismissed  the pendent  claims without prejudice.   Executive                                                                _________            Leasing Corp. v. Banco Popular de Puerto Rico, 1994 WL 448985            _____________    ____________________________            (D.P.R.  June 20,  1994).    The  plaintiffs appeal,  and  we            affirm.                      As a threshold matter, we think that the plaintiffs            seriously misconceive their burden on appeal.  The plaintiffs            make   little  effort   to   develop  either   their  factual                                            ____________________            1.  See, e.g., Plaintiffs' Brief at 29 ("The  analysis of the                ___  ____            allegations  or their  claims of  error; instead,  they offer            extrinsic evidence  controversy . . . which  was proffered by            Executive  to the  District Court  deals adequately  with the            conclusory statements, undigested record  citations, repeated            matter  and it  is incorporated  by reference.");  id. at  35                                                               ___            ("Executive explained the civil law  methodology [for dealing            assurances that  the district court was  "thoroughly briefed"            with  extrinsic evidence  in  cases  alleging  illegality  or            fraud] to  the District Court and  Executive's explanation is            on various matters,  and reminders that in  reviewing a grant            incorporated by reference."); id.  at 41 ("Executive provided                                          ___            the District Court with Executive's  own understanding of . .            of summary  judgment, we  are  "free to  consider the  entire            .  the  elements  of  a  BHCA  claim  .  .  .  .    Executive            respectfully  directs  the attention  of  this  Court to  the            record."    The plaintiff's  brief is  less  a brief  than an            relevant  materials, and  incorporates  them by  reference.")            (there follows a  citation to forty pages  of the plaintiffs'            attempt  to  incorporate   their  voluminous  district  court            brief  in  opposition to  summary  judgment).   The  brief is            littered with many more examples of implicit incorporation in            pleadings by reference.1   We have held that attorneys cannot            lieu  of factual and legal  argument.  See,  e.g., id. at 31,                                                   ___   ____  ___            39, 40-41 (two examples), 43-46 (four examples).                                         -2-                                          2            circumvent  the  page  limit of  Fed.  R.  App.  P. 28(g)  by            incorporating by  reference a  brief filed in  another forum.            Katz v. King, 627 F.2d 568, 575 (1st Cir. 1980).  "If counsel            ____    ____            desires our  consideration  of  a  particular  argument,  the            argument must  appear within  the four  corners of  the brief            filed in this court."  Id.  See also Hunter v. Allis-Chalmers                                   ___  ___ ____ ______    ______________            Corp.,  797 F.2d 1417, 1430 (7th Cir. 1986) (issues cannot be            _____            preserved  by reference  to documents  filed in  the district            court;  issues must  be argued  to be  preserved); Prudential                                                               __________            Ins. Co.  of Am. v. Sipula,  776 F.2d 157, 161  n.1 (7th Cir.            ________________    ______            1985) (practice of incorporation results in a composite brief            of  more than  fifty pages;  "any risk  of oversight  [by the            court] or of the failure to present properly the arguments on            appeal rests with [appellant]").                        These  appellate rules  are wholly  consistent with            our de novo  review of summary judgments.2  While we view the                __ ____            summary  judgment record in  the light most  favorable to the            nonmoving party,  and indulge  all  reasonable inferences  in            that party's favor, see, e.g., Vasapolli  v. Rostoff, 39 F.3d                                ___  ____  _________     _______            27, 32  (1st  Cir. 1994),  appellants  are not  excused  from            arguing the issues  being appealed.   We will  not rely  upon                                            ____________________            2.  Summary judgment is appropriate when the  record reflects            "no  genuine issue  as to  any material  fact and  . .  . the            moving party is  entitled to  judgment as a  matter of  law."            Fed. R. Civ. P. 56(c).                                         -3-                                          3            arguments  and allegations  that  are developed  only in  the            district court pleadings.                      In  light   of  these  principles,   most  of   the            plaintiffs' appellate  arguments must  be  deemed waived  for            lack  of  developed  argumentation.   See  United  States  v.                                                  ___  ______________            Zannino,  895 F.2d 1, 17  (1st Cir.), cert.  denied, 494 U.S.            _______                               _____  ______            1082  (1990).   We  address  only those  arguments  that have            arguably been preserved.3                                      I.  FACTS                                      I.  FACTS                                          _____                      In   May,   1983,  Executive   Leasing  Corporation            ("Executive") entered  a loan  agreement with Banco,  whereby            Executive  obtained  a  line  of  credit  for  its  principal            business,   long-term  vehicle   leasing.     As  collateral,            Executive assigned to Banco the accounts receivable generated            by  its lease contracts.  Part of  the loan was to be used to            discharge Executive's debt to another bank.                                            ____________________            3.  Alerted by  Banco's brief  to their possible  waiver, the            plaintiffs use their reply brief to "set forth a succinct and            veridic version of the facts . . . with limited references to            the documents which are  part of the record."   Arguments not            made in  the appellant's  opening brief, however,  are deemed            waived.  See, e.g., Sandstrom v. Chemlawn Corp., 904 F.2d 83,                     ___  ____  _________    ______________            86  (1st Cir. 1990).  Moreover, the plaintiffs have not cured            the defects of their opening brief.  Although Banco's alleged            loan agreement violations, use of "disinformation," and other            anti-competitive practices  may  be highly  relevant  to  the            plaintiffs'  claims under  Puerto Rico  law, the  reply brief            also fails to  raise a  genuine issue of  material fact  with            respect to the BHCA claims.                                         -4-                                          4                      As  a  condition  for  the  loan,  Banco  allegedly            prohibited Executive from financing its leasing business with            any  other bank.   This  claimed exclusive  dealing condition            does  not appear  in  the  loan  agreement.    In  fact,  the            agreement has an integration clause that provides:                      [This  agreement] constitutes  the entire                      agreement among the  parties . . . .   No                      covenant  or  condition not  expressed in                      this   agreement   shall  affect   or  be                      effective   to   interpret,   change   or                      restrict  this  agreement.    No  change,                      termination or attempted waiver  shall be                      binding unless in writing.                      The exclusive dealing  condition was allegedly part            of Banco's scheme to  drive Executive out of business  and to            take  over its vehicle  leasing operation for  the benefit of            Banco's  corporate affiliate,  Velco,  which happened  to  be            Executive's main  competitor.   To that end,  Banco allegedly            structured Executive's  line of credit to  create an inherent            liquidity  shortage;  made  premature  and  improper  charges            against Executive's account; and improperly refused to extend            new credit to Executive when it was not in default.                      Executive  eventually  fell   behind  in  its  loan            payments.    In  December,   1987,  Banco  called  the  loan.            Plaintiffs claim that it did so without  granting Executive a            meaningful  opportunity to  obtain alternative  financing, or            placing Executive on default  status as required by  the loan            agreement.   In March, 1988, the parties entered an agreement            to  terminate  the  loan  agreement.    Executive  agreed  to                                         -5-                                          5            transfer  its main assets and  all of its  lease contracts --            even  those in  which Banco  had no  previous interest  -- to            Banco, allegedly for the benefit of Velco.                      The  plaintiffs claim  that under the  Bank Holding            Company Act,  both the  initial loan  agreement and  the 1988            termination agreement  were extensions of  credit conditioned            upon a prohibited tying arrangement.                                   II.  DISCUSSION                                   II.  DISCUSSION                                        __________                      A.  The loan agreement                      A.  The loan agreement                      The plaintiffs  argue that Banco  violated the BHCA            by  extending credit to  Executive on condition  that it "not            obtain  some  other  credit,  property,  or  service  from  a            competitor of  such bank . .  . ."  12  U.S.C.   1972(1)(E).4            Because no such restriction  appears in the agreement itself,            and the  loan agreement, by its  clear language, "constitutes            the entire  agreement among the parties,"  the district court            rejected the plaintiffs' extrinsic evidence of the  exclusive            dealing condition, including their own sworn affidavits.  See                                                                      ___            Executive Leasing, 1994  WL 448985, at  *7 (citing P.R.  Laws            _________________            Ann.  tit. 32, App. IV, R. 69(B) (1983) (Parol Evidence Rule)            (evidence  extrinsic  to  an  oral or  written  agreement  is                                            ____________________            4.  Under 12 U.S.C.   1972(1)(E), a bank may not, among other            things, extend  credit on  the condition or  requirement that            "the customer  shall not obtain some  other credit, property,            or service from a competitor of such bank . .  . other than a            condition  or requirement  that  such  bank shall  reasonably            impose in a credit transaction to assure the soundness of the            credit."                                         -6-                                          6            inadmissible where "all the terms and conditions constituting            the true  and  final  intention  of  the  parties  have  been            included"); P.R.  Laws Ann. tit.  31,   3471  (1991) (Article            1233  of the  Civil Code) ("If  the terms  of a  contract are            clear  and leave  no  doubt  as  to  the  intentions  of  the            contracting parties,  the literal  sense of  its stipulations            shall be observed. .  . ."); Vulcan  Tools of Puerto Rico  v.                                         ____________________________            Makita  USA, Inc., 23 F.3d 564, 567 (1st Cir. 1994) (applying            _________________            Puerto Rico law; "[w]hen  an agreement leaves no doubt  as to            the intent of the parties, a court should not look beyond the            literal terms of the contract.")).                      Under Puerto Rico law, an agreement is "clear" when            it can "'be  understood in one  sense alone, without  leaving            any   room  for   doubt,  controversies   or  difference   of            interpretation . . . .'"  Catullo v. Metzner, 834  F.2d 1075,                                      _______    _______            1079 (1st Cir.  1987) (quoting Heirs  of Ramirez v.  Superior                                           _________________     ________            Court,  81 P.R.R. 347,  351 (1959)).   The plaintiffs concede            _____            that  the loan agreement is clear.  They argue, however, that            the written agreement was  not in fact the  entire agreement,            and  that we must consider extrinsic evidence of the parties'            intent  with  respect  to  integration.    This  argument  is            supported by a  selective reading of  Article 1233 of  Puerto            Rico's Civil Code, P.R. Laws Ann. tit. 31,   3471:                        If the  terms of a  contract are  clear                      and leave  no doubt as to  the intentions                      of the contracting  parties, the  literal                                         -7-                                          7                      sense  of  its   stipulations  shall   be                      observed.                        If  the words should appear contrary to                      the evident intention of  the contracting                      parties, the intention shall prevail.            Relying  exclusively  on  the  second  sentence  quoted,  the            plaintiffs argue that the words of the integration clause are            in fact "contrary to the evident intention of the contracting            parties."  Yet to consider the extrinsic evidence at all, the            court  must first  find the relevant  terms of  the agreement            unclear.  That requirement not  being met, the district court            correctly  went no  further.   See  Vulcan,  23 F.3d  at  564                                           ___  ______            (because the contractual  term "non-exclusive"  is clear  and            unambiguous,  there  is  "no  need  to  dwell  on"  extrinsic            evidence  of  the supplier's  alleged  promise  to limit  the            number  of  its distributors);  Ballester  Hermanos, Inc.  v.                                            _________________________            Campbell  Soup Co., 797 F.  Supp. 103, 108  n.4 (D.P.R. 1992)            __________________            (under  Puerto Rico's  Civil  Code and  parol evidence  rule,            parties  may resort  to extrinsic  evidence of  circumstances            surrounding the document "to  assist in the interpretation of            an apparent conflict in  the written text") (emphasis added);                                 __  ___ _______ ____            Nike  Int'l Ltd. v. Athletic  Sales, Inc., 689  F. Supp. 1235            ________________    _____________________            (D.P.R. 1988) (under Article 1233  of the Civil Code,  intent            of the parties "is to be gleaned first from the literal terms                                         -8-                                          8            of   the  contract   and   then,  if   necessary,  from   the                                              ______________            circumstances surrounding its execution") (emphasis added).5                      The plaintiffs attempt  to distinguish our decision            in  Vulcan  Tools,  23  F.3d  at  567-68,  where  we excluded                _____________            extrinsic  evidence that  was  offered to  vary  a clear  and            unambiguous term  of the contract,  on the ground  that fraud            and  illegality were not alleged.  This argument is made only                                            ____________________            5.  The plaintiffs  cite several civil law  treatises for the            proposition that  the correct methodology for determining the            intention of  contracting parties  is "to consider,  not only            the  written contract  itself, but  all other  evidence which            would  otherwise be  admissible."   The admissibility  of the            "other evidence"  under Puerto Rico law,  however, depends in            the first instance  on the clarity  of the written  contract.            See Vulcan Tools, 23 F.3d  at 567-68; Mercado-Garcia v. Ponce            ___ ____________                      ______________    _____            Fed.  Bank, 979  F.2d 890,  894 (1st  Cir. 1992)  (where both            __________            parties  offered extrinsic  evidence contradicting  the clear            terms of  a promissory note,  court is nonetheless  "bound to            look no further than the note itself").                We note, too, that  the plaintiffs' extrinsic evidence of            the actual  practice of  the parties would  not have  blocked            summary  judgment on their    1972(1)(E) claim.  For example,            Banco tolerated Executive's repeated overdrafts and delays in            payment, even though the loan agreement required Executive to            pay  on time.  The  practice of permitting  late payments and            overdrafts  strikes  us  as  a  reasonable  accommodation  to            Executive;  it  raises  no  genuine  question  regarding  the            integration of the agreement.   As for Banco's  other alleged            deviations from  the loan  agreement, the integration  clause            provides that  "no change .  . .  shall be binding  unless in                                                       _______            writing" (emphasis added).  This is not a representation that            there would  never be any  variance, however small,  from the            agreement.  With respect to  terms that the parties  intended            to  be  binding  and  enforceable,  nothing  plaintiffs  have            articulated  on appeal  leads  us  to  doubt  that  the  loan            agreement should "be deemed  as complete" under Puerto Rico's            parol  evidence rule.   P.R. Laws Ann.  tit. 32,  App. IV, R.            69(B).   In  fact,  on several  occasions when  Banco renewed            Executive's line of credit or adjusted the terms of the loan,            it did so in writing as required by the loan agreement.                                         -9-                                          9            by the attempted incorporation  of a surreply filed  with the                                                 ________            district  court; accordingly, it  has been waived.   In their            original  complaint,   the  plaintiffs  made   no  allegation            regarding exclusive dealing, let alone fraud.  Fraud was  not            alleged in  the amended complaint,  or even in  the tendered,            but rejected, second amended complaint.                      Even were  we to reach the  argument of illegality,            we  would reject it on the merits.  The plaintiffs' extrinsic            evidence  was offered  not  to illuminate  (for example)  the            circumstances  under which  the  agreement was  made, see  R.                                                                  ___            69(B),  but to contravene  an express term  of the agreement.            The plaintiffs  have cited no  authority to suggest  that the            illegality  exception to  Puerto Rico's  parol evidence  rule            sweeps this far.   The district court  correctly excluded any            evidence of the exclusive dealing condition.                      B.  The termination agreement                      B.  The termination agreement                      Under  the  BHCA,  banks  may  not  require,  as  a            condition  for extending  credit, that "the  customer provide            some  additional  credit,  property,  or service  to  a  bank            holding company of such  bank, or to any other  subsidiary of            such bank holding  company."   12 U.S.C.    1972(1)(D).   The            plaintiffs allege that Banco violated   1972(1)(D) by forcing                                         -10-                                          10            Executive to surrender its  vehicle leasing business to Banco            for the benefit of its leasing affiliate, Velco.6                      The plaintiffs  make only a  cursory argument  that            Executive was in fact  required to provide "additional .  . .            property" (as opposed to the  collateral for the loan) within            the meaning of the  BHCA.  For a "detailed exposition  of the            facts" and the plaintiffs' legal theories, we are directed to            their pleadings below.  We rule that the plaintiffs' argument            under   1972(1)(D) has been waived.7                      We  turn now  to  two claims  of procedural  error,            which we  assess in light of  their effect (if any)  upon the            summary judgment proceedings.                      C.  The second amended complaint                      C.  The second amended complaint                      The plaintiffs argue that the district court abused            its discretion by denying them leave to file a second amended            complaint.   On January  18, 1994,  the district court  heard            arguments on the need for a stay of discovery pending Banco's            motion  for  summary  judgment  on  the  BHCA  claims.    The            plaintiffs gave no hint  that a second amended  complaint was            in the offing.  By  order of the court, Banco was to move for                                            ____________________            6.  Banco  incorrectly  asserts  that  the  plaintiffs  never            invoked    1972(1)(D)  before the district  court.   In fact,            references  to  that   section  appear  in  the   plaintiffs'            opposition to summary judgment.            7.  We  therefore need not decide whether  the workout of the            loan  constituted  an  "exten[sion  of]  credit"  within  the            meaning of the BHCA.                                         -11-                                          11            summary  judgment  by February  7,  1994, and  the  trial was            scheduled  for  April 18,  1994.   On  February 1,  1994, the            plaintiffs  unexpectedly moved  for  leave to  file a  second            amended  complaint.   The  motion remained  pending when  the            district court entered summary judgment for Banco.                      Rule 15(a) of the  Federal Rules of Civil Procedure            provides  in part  that leave  to amend  pleadings  "shall be            freely given when justice so requires."   Absent factors such            as  undue  delay,  bad  faith or  dilatory  motive,  repeated            failure to  cure deficiencies by  previous amendments,  undue            prejudice to the opposing  party, or "futility of amendment,"            the leave sought should be granted.  Foman v. Davis, 371 U.S.                                                 _____    _____            178, 182 (1962).                      We are  confident that  the district court  did not            abuse its  "considerable discretion" by  implicitly rejecting            the  second amended  complaint.   Rodriguez v.  Banco Central                                              _________     _____________            Corp., 990 F.2d 7, 14  (1st Cir. 1993).  This was  the second            _____            time  that  the  plaintiffs  had  attempted  to  amend  their            complaint  to  forestall  a   dispositive  motion  (in   this            instance, Banco's summary judgment motion).  The first motion            for  leave  to  file  an amended  complaint  came  after  the                                                               _____            original  complaint  was dismissed.   Moreover,  after nearly            five  years  of  litigation  and a  prior  amendment  of  the            complaint, and  with the trial  less than three  months away,            the plaintiffs  made allegations  for the first  time against                                         -12-                                          12            Banco Popular, the  successor-in-interest to defendant  Banco            de  Ponce,  based  on  conduct  that  took  place  after  the                                                               _____            termination  of  the  loan  agreement --  conduct  that  "has            continued to this date."  "The further along a case is toward            trial, the greater the threat of prejudice and delay when new            claims  are belatedly  added."   Rodriguez,  990 F.2d  at 14.                                             _________            Although the district court  should have "state[d] explicitly            its  reasons  for  den[ying]"  leave  to  amend, Kay  v.  New                                                             ___      ___            Hampshire  Democratic Party,  821  F.2d 31,  34-35 (1st  Cir.            ___________________________            1987),  this  reason  for  the  denial   is  plain  from  the            procedural history of  the case:  the plaintiffs  were trying            to prolong  discovery and  postpone a  ruling on  the summary            judgment  motion in  the hope  that "something  concrete will            eventually  materialize .  .  . ."   Dow  v.  United Bhd.  of                                                 ___      _______________            Carpenters & Joiners of Am., 1 F.3d 56, 58 (1st Cir. 1993).            ___________________________                      The  tendered complaint would  have been  futile in            any event because it could not have  blocked summary judgment            on the jurisdictional  BHCA claims.  See Kay,  821 F.2d at 34                                                 ___ ___            ("for  the sole  reason that  [the proposed]  amendment would            have been futile, it was properly denied") (citing Foman, 371                                                               _____            U.S.  at 182).    On  appeal,  the  plaintiffs  point  to  no            particular  amendment that  might with  appropriate discovery            have raised a genuine issue of material fact.                                         -13-                                          13                      For all  of these  reasons, we reject  the argument            that the plaintiffs should have been allowed to file a second            amended complaint.                      D.  The stay of discovery                      D.  The stay of discovery                      The plaintiffs argue that the district court abused            its  discretion  by  staying  discovery  during  the  summary            judgment proceedings, and  by denying their  Fed. R. Civ.  P.            56(f) motion for additional discovery.  This argument has not            been  adequately  developed  on  appeal and  must  be  deemed            waived.  See, e.g., Plaintiffs' Brief  at 26 ("Executive also                     ___  ____            showed,  with great  particularity, where discovery  stood at            the time.  [That discussion is incorporated by reference[.] .            .  .  ]") (citing  two district  court  pleadings).   We have            searched the  plaintiffs' brief  in vain  for a  showing that            their discovery  requests, whether those pending  at the time            of  the stay  or  those made  pursuant  to Rule  56(f),  were            necessary  or even  relevant to  their opposition  to summary            judgment on the BHCA  claims.  Again, the plaintiffs  fail to            address  the specific  manner  in which  they were  allegedly            prejudiced by the claimed error.                      Double  costs  are  assessed   against  plaintiffs'            attorneys pursuant  to Fed. R.  App. P.  38. and 28  U.S.C.              1927.                      Affirmed.                      Affirmed.                      _________                                         -14-                                          14
