840 F.2d 985 (1st Cir. 1988), 87-1657, Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co.

Docket Nº:87-1657.
Citation:840 F.2d 985
Case Date:February 16, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 985

840 F.2d 985 (1st Cir. 1988)

PATERSON-LEITCH COMPANY, INC., Plaintiff, Appellant,



Defendants, Appellees.

No. 87-1657.

United States Court of Appeals, First Circuit

February 16, 1988

Heard Dec. 11, 1987.

Richard W. Schwartzman with whom Johnson & Schwartzman, Boston, Mass., was on brief, for plaintiff, appellant.

John P. Connelly with whom John D. Hughes and Hutchins & Wheeler, Boston, Mass., were on brief, for defendant, appellee Bechtel Power Corp.

Charles P. Lavelle with whom John J. Ferriter and Begley Ferriter Lavelle &

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Welch, P.C., Holyoke, Mass., were on brief, for defendant, appellee Massachusetts Mun. Wholesale Elec. Co.

Before COFFIN, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The United States District Court for the District of Massachusetts granted summary judgment on various claims asserted by plaintiff-appellant Paterson-Leitch Company, Inc. (Palco) against the present appellees, Massachusetts Municipal Wholesale Electric Company (Mass. Electric) and Bechtel Power Corporation (Bechtel). Palco brings the district court's handiwork before us, assigning numerous supposed errors. Having inspected the dimensions and angles of the case from foundation to superstructure, we find the decision below to have been soundly constructed. Hence, we affirm.


Some years ago, Mass. Electric engaged Bechtel to prepare plans, specifications, and contract documents for the erection of the Stony Brook Energy Center, a generating plant in Ludlow, Massachusetts. Palco successfully bid the steel work and entered into a contract with Mass. Electric in July 1979. Bechtel, which had agreed to manage construction of the project, also signed the pact as Mass. Electric's agent. The heart of the bargain was Palco's commitment to design, fabricate, and erect five dual-wall steel stacks complete with the necessary platforms, transitions, flexible connections, and safety devices. The contract price was in excess of two million dollars. The completion date was September 1, 1980.

The best-laid plans of corporate entrepreneurs, like those of mice and men, ofttimes go a-gley; plaintiff was almost two years late in finishing the job. Though tardy, Palco had an explanation. With appellees' approval, it had subcontracted certain work to Springfield Steel Erectors (SSE). Early in June of 1980, SSE became aware that other subcontractors' employees were taking preplanned forty-five minute coffee breaks twice daily. SSE believed this practice to countervail the Project Labor Agreement (PLA), 1 and brought it to the attention of Palco and Bechtel in early July. The coffee breaks were but a part of Palco's problem. It claimed to have experienced and brought to Bechtel's attention, previously, other labor-related difficulties. In plaintiff's eyes, Bechtel was unsympathetic, unresponsive, and at bottom, uncaring. By the end of the summer, Palco had concluded that the delays attributable to the labor slowdowns were irreversible and that appellees did not intend to take corrective measures. Palco wrote to Bechtel on September 11, 1980. The billet-doux stated:

On numerous occasions, while Paterson-Leitch and/or Springfield Steel supervision was in the work area, interferences occurred delaying our boilermakers from continuing work. We will continue to observe this problem and plan to document and record all such interferences for settlement of damages incurred.

It was not until some nine months later, however, that plaintiff wrote to Bechtel to request additional payments (beyond the contract price) for these construction delays. This missive bore a date of June 26, 1981. A second letter was sent on August 25, amplifying the demand. Bechtel was unmoved. On October 15, 1981, it formally denied plaintiff's beseechment for extra recompense. The rejection letter expressly advised Palco that "[a]ny further pursuit of this matter should be handled [by you] in accordance with the contract protest procedure (Ref. Contract Article GC-3)." 2 This

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pointed reference was to the undeniable fact that, by the terms of plaintiff's contract, dual notification was compulsory: notice of any claim by Palco had to be given initially to the construction manager, Bechtel, and later--if the claim was to be pressed--to the owner, Mass. Electric. It is no exaggeration to say that the dual notice paradigm comprised the core structure of the contractual protest procedure. Yet, Palco flouted it. Instead of responding to Bechtel's October 15 rejection letter within the stipulated fourteen day period, plaintiff did nothing.

On June 7, 1982, as its work belatedly wound down, Palco's president executed a certificate of final payment, which embodied a release. He unilaterally added to the document the notation that the release did not extend to "any monies that may become due [Palco] as a result of [Palco's] request for relief as expressed in letters of 6/26/81 and 8/25/81...." Plaintiff finished its work and left the job. Another hiatus ensued. On November 10, 1982, Demand Construction Services, Inc. (Demand), a consulting engineering firm retained by Palco, wrote to the owner requesting some equitable adjustment of Palco's contract price on account of the slowdown. This overture was spurned.

Time marched on. It was not until March 4, 1985 that Palco sued in the district court. Jurisdiction was premised upon diversity of citizenship and the existence of a controversy in the requisite amount. 28 U.S.C. Sec. 1332. The complaint contained four statements of claim. It sought damages for breach of contract (Count I), for negligent supervision of the work of other subcontractors (Count II), for fraud, because appellees were said to have vouchsafed that organized coffee breaks would not be permitted (Count III), and for perpetrating unfair and deceptive business practices in derogation of an applicable statute (Count IV).

After issue was joined, a United States magistrate held a pretrial scheduling conference on July 19, 1985. At this session, the defendants indicated their intention to file dispositive motions. Although Palco's counsel argued that any such initiatives would be premature, the magistrate established a regimen for the filing of motions and stayed discovery pending resolution of the same. These rulings were embodied in a scheduling order entered on July 24, 1985. See Appendix. Notwithstanding that the order was immediately appealable to the district judge, see Fed.R.Civ.P. 72(a), and that plaintiff was on notice that its provisions would "control the subsequent course of the action unless modified," Fed.R.Civ.P. 16(e), Palco chose not to contest it. Each defendant thereafter filed a dispositive motion. On October 21, 1986, following briefing and argument, the magistrate recommended that both motions be granted.

Plaintiff filed a timely objection to the magistrate's report and changed its game plan. On December 1, 1986, before the district judge reached the matter, Palco filed a motion and affidavit under Fed.R.Civ.P. 56(f) requesting additional time for discovery. 3 The judge refused. He subsequently adopted the magistrate's report,

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approved the recommendation, and allowed the defendants' motions. This appeal followed.

Appellant raises a potpourri of issues, procedural and substantive, in its effort to demonstrate that the district court was in error. We deal infra with certain of these sallies. The rest we dismiss summarily as altogether meritless.


We first address Palco's lamentation that it was deprived of discovery which it needed to mount a meaningful opposition to the dispositive motions. In particular, plaintiff contends that it should have been given extra time to unearth information bearing on (i) its theory that it was a third-party beneficiary of Bechtel's construction management pact with Mass. Electric, and (ii) appellees' supposed waiver of the contractually mandated protest procedure. Basically, this plea reduces to the idea that the district court should have allowed appellant's afterthought Rule 56(f) motion. The assertion is bootless.

Fed.R.Civ.P. 56(f) comprises a procedural "escape hatch" for a party who genuinely requires additional time to marshal "facts essential to justify [its] opposition" when confronted by a summary judgment motion. Herbert v. Wicklund, 744 F.2d 218, 221 (1st Cir.1984). We have visited the purlieus of the rule in the recent past. In Taylor v. Gallagher, 737 F.2d 134 (1st Cir.1984), we implied that invocation of Rule 56(f) did not invariably demand hypertechnical compliance with its terms. Id. at 137. In appropriate surroundings, some alternative statement might serve. Id. Nevertheless, in Herbert v. Wicklund, 744 F.2d at 221-22, we found the absence of a formal Rule 56(f) affidavit to be fatal despite the objector's submission of a loose collection of miscellany, e.g., an opposition to the motion asking for further discovery time, an undocketed letter from counsel to the court's clerk requesting a delay pending certain further investigation. We took pains to distinguish Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1146 (5th Cir.) (en banc), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973), a case where the Fifth Circuit accepted a nonaffidavit pleading--a letter--as sufficient under Rule 56(f). We noted that, unlike in Herbert, the Littlejohn letter had been docketed, was timely, and referred to the specific facts needed to oppose the summary judgment motion and to the likely source thereof. 744 F.2d at 222.

The case at bar requires us to elaborate upon what may constitute substantial compliance in the vernacular of Rule 56(f). Our views may be summarized...

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