30 F.3d 251
29 Fed.R.Serv.3d 1065
RESOLUTION TRUST CORPORATION, as Receiver for Comfed Savings
Bank, F.A., Plaintiff, Appellee,
Harold GOLD and Graphics Leasing Corp., Defendants, Appellants.
United States Court of Appeals,
Heard May 4, 1994.
Decided July 27, 1994.
Leonard M. Singer, with whom Heidlage & Reece, P.C., Boston, MA, was on brief, for appellants.
Michael J. Engelberg, with whom Ronald M. Jacobs and Nutter, McClennen & Fish, Boston, MA, were on brief, for appellee.
Before BREYER,* Chief Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge.
CYR, Circuit Judge.
Resolution Trust Company (RTC or appellee), as receiver for ComFed Savings Bank (ComFed), brought the present action on July 13, 1993, to recover monies allegedly due from defendants-appellants Harold M. Gold and Graphics Leasing Corporation (collectively, "Gold") under their joint guaranty of loans ComFed made to First Equity Funding Corporation. Gold did not answer until RTC filed its motion for entry of default. The late answer admitted the guaranty, contesting only the amount claimed by RTC. It asserted no affirmative defenses.
On September 20, RTC moved for summary judgment. After failing to file timely opposition, see D.Mass.Loc.R. 7.1(B)(2), Gold requested more time for discovery, see Fed.R.Civ.P. 56(f), and, on October 22, sought leave to amend its answer to interpose four affirmative defenses, see Fed.R.Civ.P. 15(a). The district court thereafter entered summary judgment for RTC and summarily denied Gold's belated request for leave to amend its answer, without ruling on the request for additional discovery, and Gold appealed. We affirm.
Leave to Amend
We review denials of leave to amend under Rule 15 for abuse of discretion, deferring to the district court for any adequate reason apparent from the record. Demars v. General Dynamics Corp., 779 F.2d 95, 99 (1st Cir.1985); Farkas v. Texas Instruments, Inc., 429 F.2d 849, 851 (1st Cir.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1193, 28 L.Ed.2d 324 (1971). Leave to amend is to be "freely given," Fed.R.Civ.P. 15(a), unless it would be futile, Northeast Fed. Credit Union v. Neves, 837 F.2d 531, 536 (1st Cir.1988), or reward, inter alia, undue or intended delay, see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). As the Rule 15 motion in the present case was not filed until after RTC moved for summary judgment, Gold was required to demonstrate to the district court that the proposed amendments were supported by "substantial and convincing evidence." Torres-Matos v. St. Lawrence Garment Co., Inc., 901 F.2d 1144, 1146 (1st Cir.1990) (citations omitted). There was no such showing.
The first claim Gold advances on appeal is that RTC waived its contractual right to immediate payment on default, an affirmative defense Gold sought to interpose in its tardy motion to amend. The proffered defense is frivolous.
The ComFed demand note provides that, upon default, the entire loan balance becomes "immediately due and payable without notice or demand of any kind." Gold concedes that no principal or interest payments were ever made after September 15, 1991. The note further provides that failure to pay any amount, within ten days after it is due, constitutes an event of default. The waiver claim is based on the belated affidavit of Jeffery Stitt--a Gold consultant--submitted with Gold's untimely motion for further discovery under Rule 56(f). Stitt's conclusory characterizations of alleged parol discussions with anonymous RTC employees at unidentified times fall far short of "clear and convincing evidence," id., of "decisive and unequivocal conduct indicating that [RTC] would not insist that the contractual provision at issue be performed," Brennan v. Carvel Corp., 929 F.2d 801, 810 (1st Cir.1991) (citations omitted) (applying Mass. law). Indeed, the Stitt affidavit does not constitute competent evidence as required by Fed.R.Civ.P. 56(e). See Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1515-16 (1st Cir.1991) (Rule 56(e) requires that affidavits filed in opposition to summary judgment be based on competent evidence).
As its "Second Affirmative Defense," the proposed amended answer simply alleged that "The Complaint is barred by the doctrine of estoppel." Gold presented neither explication nor argumentation in support of the estoppel claim in the district court. McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir.1991) ("theories not raised squarely in the district court cannot be surfaced for the first time on appeal."), cert. denied, --- U.S. ----, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992). Nor does Gold discuss the estoppel claim on appeal. Thus, even if the estoppel claim had been pleaded and preserved below, it would be deemed to have been waived on appeal. See, e.g., Rhode Island Hosp. Trust Nat'l Bank v. Howard Communications Corp., 980 F.2d 823, 828 n. 8 (1st Cir.1992).
The third affirmative defense, predicated on Gold's alleged entitlement to a one-year grace period to cure the default, fails due to the absence of competent evidence of an enforceable waiver and the fact that the default was never cured. See supra p. 253.
Finally, the proposed amended answer asserts--based exclusively on "information and belief"--that ComFed failed to require the borrower to submit appraisals substantiating the 75% loan-to-collateral-value ratio required under the note, which allegedly placed Gold at undue risk under its unconditional loan guaranty. Not only does Gold point to no evidentiary basis for its "information and belief," it fails even to intimate that such evidence exists. Moreover, Gold's attempt at delaying the inevitable adverse judgment would have failed for lack of competent evidence even if interposed in a timely manner. See Fed.R.Civ.P. 56(e); Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (where nonmovant has ultimate burden of proof on matter at issue, summary judgment motion must be met by "definite, competent evidence"), cert. denied, --- U.S. ----, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). Similarly, Gold's perfunctory assertion falls far short of the "convincing evidence" required to establish a "substantial" defense. See Torres-Matos, 901 F.2d at 1146. Lastly, this "defense" is precluded by the express terms of the loan guaranty: "[Gold] hereby waives any other act or omission of the Bank (except acts or omissions in bad faith) which changes the scope of [Gold's] risk." Gold has not alleged bad faith.
In sum, the motion for leave to amend, proffered at the eleventh hour to fend off summary judgment, proposed four patently futile affirmative defenses fully meriting summary rejection. Jackson v. Salon, 614 F.2d 15, 17 (1st Cir.1980); see also Neves, 837 F.2d at 536 ("Federal courts need not tiptoe through empty formalities to reach foreordained results.").
Gold failed to oppose RTC's motion for summary judgment within the fourteen-day period prescribed by local rule. See D.Mass.Loc.R. 7.1(B)(2). Of course, the failure to file timely opposition did not necessarily entitle RTC to summary judgment. Lopez, 938 F.2d at 1517; Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir.1990). Summary judgment was proper only if the record, viewed in the light most favorable to Gold, revealed no trialworthy issue of material fact and RTC was entitled to judgment as a matter of law. Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 875 (1st Cir.1993); Lopez, 938 F.2d at 1517. On the other hand, Gold's untimely submissions need not have been considered by the district court in determining the appropriateness of summary judgment. See Mendez, 900 F.2d at 7-8 (citing cases).
RTC proffered competent evidence that Gold was liable in the amount claimed under its loan guaranty. Moreover, an examination of all of Gold's submissions--timely as well as untimely--has not disclosed a trialworthy issue of material fact relating either to the amount of the indebtedness or to any affirmative defense belatedly asserted in the district court. There is no basis for vacating summary judgment in these circumstances.1
"Just Damages" Under Rule 38
Finally, RTC requests an award of "just damages," including attorney fees and double costs, pursuant to Fed.R.App.P. 38. Even though Gold failed to interpose opposition to an award of just damages, we have discussed its frivolous appellate claims at undeserved length in order to demonstrate their dilatory aim and amenability to sanction. Moreover, Gold has offered no other plausible explanation, let alone a justification, for its dilatory litigation tactics below or on appeal. Accordingly, a reasonable attorney fee award and double costs shall be imposed against Gold for this frivolous, dilatory appeal. See Cowdell v. Cambridge Mut. Ins. Co., 808 F.2d 160, 163 (1st Cir.1986) (pursuant to Fed.R.App.P. 38, awarding double costs and attorney fee as just damages for frivolous appeal).
The district court judgment is affirmed. Double costs and a reasonable attorney fee are awarded to appellee, pursuant to Fed.R.App.P. 38, in an amount to be determined by the court. Appellee is allowed twenty days within which to submit its bill of costs and an application for a reasonable attorney fee award relating to this appeal. A copy thereof is to be served upon appellant's counsel. Appellant shall be allowed twenty days within which to file written objection to the amounts requested by appellee.
Chief Judge Stephen Breyer heard oral argument in this matter, but did not participate in the drafting or the issuance of the panel opinion. The remaining two panelists therefore issue this opinion pursuant to 28 U.S.C. Sec. 46(d)
Nevertheless, Gold frivolously contends on appeal that the district court committed reversible error in granting summary judgment without first ruling on Gold's late and groundless request for further discovery time, pursuant to Fed.R.Civ.P. 56(f). The request was predicated on the unsubstantiated speculation that it is logically possible that the amount owed under the loan guaranty is different than the amount established by RTC. Since Gold does not even hint at any discoverable evidence to substantiate this speculation, it has presented "no plausible basis for asserting a belief that 'specified' discoverable facts probably existed." Mattoon v. City of Pittsfield, 980 F.2d 1, 8 (1st Cir.1992) (citing Paterson-Leitch Co. v. Massachusetts Munic. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir.1988)). Further, Gold made no attempt whatever to demonstrate the requisite good cause for failing to conduct the discovery earlier. Id. It is all too clear, given Gold's dilatory tactics throughout this litigation, that the Rule 56(f) initiative was simply a frivolous, last-ditch effort to stave off final judgment. We find no abuse of discretion in the district court's implicit denial of the Rule 56(f) motion in these circumstances. See id. (finding insufficient a Rule 56(f) affidavit which "merely conjecture[d] that something might be discovered but provide[d] no realistic basis for believing that further discovery would disclose evidence" of material facts)