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

Belknap, Webb & Tyler LLP,

____________________________

Carin G. Reynolds, Patterson,

__________________ __________

Andrea J. Pollack,
__________________

Moynihan, Jr., and Peabody & Brown were on

______________
________________

Cornelius J.
_____________

brief, for appellee

Home Box Office, Inc.

Cornelius J. Moynihan, Jr.,
____________________________
Joseph J. Santora,
___________________

with

Leonard F. Lesser,
___________________

Hashmall & Mischel LLP,

________________________

were

on brief,

whom

Peabody & Brown,

________________

and

Schneck Weltman
________________

for

appellees Viacom

International, Inc. and MTV Networks.

_________________________

July 22, 1996

_________________________

SELYA,
SELYA,

appellant

Circuit Judge.
Circuit Judge.
______________

Donald M.

In

this

Berkovitz challenges

appeal,

plaintiff-

the district

court's

spontaneous entry of judgment in favor of the defendants Home Box

Office, Inc.

Although

(HBO)

we

applaud

management and

trial,

awry.

and Viacom

the

district

its Briarean

we believe

that in

Consequently, we

International,

court's

efforts to

one crucial

vacate

the

refine

Inc.

innovative

the issues

respect the

judgment

(Viacom).1

case

for

court went

and remand

for

further proceedings.

I.
I.

FACTUAL PREDICATE
FACTUAL PREDICATE

We frame the facts in the aspect most beneficial to the

party

against

consistent

whom

with record

the

district

support.

court

See, e.g.,
___ ____

entered

judgment,

Quaker State Oil

_________________

Refining Corp. v. Garrity Oil Co., 884 F.2d

______________
_______________

1510, 1513 (1st Cir.

1989).

In early 1984, Berkovitz

television channel.

He

hit upon an idea for

dubbed this concept

Network" (or, for short, "the TEN plan").

round-the-clock

commercial

television

a cable

"The Entertainment

The concept envisioned

channel

highlighting

lesser-known musical and comedic acts supplemented by talk shows,

movies,

and other

staples.

features through which the

The

concept embodied

interactive

viewing audience could participate in

____________________

1We

omit

particularized

necessarily

stand or

mentioned.

The

inactive

fall

omitted

reference

with parties
parties are

corporation controlled by

Networks (a wholly-owned subsidiary

this

exercise of literary

to

two

whom

plaintiff

parties

we have

who

already

KDK, Inc.

(an

Berkovitz) and defendant MTV

of Viacom).

Notwithstanding

license, our opinion

is binding upon

all the litigants.

contests and offer programming suggestions telephonically.

In February 1985,

plan

offer.

to an HBO vice

He then

Berkovitz offered a copy

of the TEN

president, Larry Carlson,

who accepted the

sent the document (which, like

all other copies

of the TEN plan mentioned herein, bore

on its cover page) to Carlson.

the legend "confidential"

Approximately three months later,

HBO disclaimed any interest and returned the submission (although

Berkovitz intimates that

Berkovitz

attempted to

HBO retained

interest Viacom

a copy).

in the

In July

TEN plan.

chairman's secretary suggested that he forward a copy to

He claims to

submission

to

have done

so (on

the express

Although Masters "raved" about

the

He also claims

at Viacom's request

met with an MTV vice-president, Lee Masters,

The

Viacom.

condition that

was "for [the chairman's] eyes only."

have furnished extra copies

1987,

and to have

anent the proposal.

certain aspects of the plan,

the

meeting came to naught.

Little daunted, Berkovitz resumed his courtship of HBO.

During the

fall of

1987 he

maintains, perused the TEN

met with Carlson,

who,

plan, praised it, agreed to

Berkovitz

keep its

contents in confidence,

help launch the

Despite

these

and led

him to believe

new enterprise

encomia,

and share the

and

several

that HBO

would

fruits with

him.

subsequent

telephone

conversations in the same vein, HBO never followed through.2

____________________

2Not

surprisingly,

testified during
the

Carlson

a deposition that

TEN plan lacking in

disputes

he found both

focus; hence, he

any commitments.

this

account.

He

Berkovitz and

refrained from making

HBO

1989.

inaugurated "The

Viacom

Network."

Central."

Comedy Channel"

shortly followed

Late

in

Berkovitz

inspiration from

1990

the

suit

two

with

merged

in November

"Ha!

to

The

become

of

Comedy

"Comedy

insists that these offerings all drew their

the TEN plan, and

that they did so

in blatant

disregard of his proprietary rights.

II.
II.

TRAVEL OF THE CASE

TRAVEL OF THE CASE

The

procedural

decretory significance.

A.
A.

Invoking

Berkovitz filed

aspects

of

this

litigation

are

of

We divide our account into two parts.

Initial Proceedings.
Initial Proceedings.
___________________

diversity

jurisdiction,

suit in federal

28

district court

U.S.C.

on January

1332,

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

breached implied-in-fact contracts

TEN

plan

to

practices.

productive

ends,

themselves at

to pay him

and

his expense,

if they used

committed

unfair

the

trade

The defendants denied these allegations.

The novelty (or lack

elements

contention.

The defendants, positing that New York's substantive

of his idea in

the

case.

Massachusetts

became

protuberant

and its

constituent

law governed, maintained

soon

thereof) of the TEN plan

bone

of

that Berkovitz had to prove the novelty

order to recover

Berkovitz, positing

governed, attempted

under any actionable theory

that

of

the

substantive

law of

to parry

this thrust

on two

levels:

he asserted both that

his idea was in

fact novel, and

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,

Judge

the

Skinner considered

defendants moved

the

for summary

parties' arguments

and

judgment.

reserved

decision.

In a rescript

Massachusetts

law

Massachusetts

does not

dated May 18,

supplies

plaintiff alleges

the

require a

the existence

rule

1994, he held

of

showing

of a

decision,

(1) that

(2)

of novelty

when the

contractual relationship,

and (3) that the defendants' motions for summary judgment

therefore

that

should

be denied on all but the unfair trade practices claim.

The court entered an appropriate order.

B.
B.

The Pretrial Conferences.

The Pretrial Conferences.
________________________

After Judge Skinner elected

cases were redrawn.

case

in

mid-1994.

reconsideration

of

senior status, many of his

Judge Keeton assumed responsibility for this

Although

the earlier

the

denial

defendants

moved

for

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

which

to a

head.

During

the last

took place in 1995), the

and delimiting the issues

transpired at

four conferences

(all of

judge concentrated on clarifying

to be tried.

Because the

these conferences shed considerable

events that

light on this

appeal, we set out a brief chronology.

1.
1.

conferences

The March 21 Conference.

The March 21 Conference.
________________________

focused

primarily

on

the

The first

parties'

of the four

agreement

to

bifurcate

the

damages.

trial, separating

But Judge

Keeton

the

also

issues

seized this

instruct the parties to spell out their legal

forensic jargon),

and directed

of liability

them to

opportunity

and

to

theories (avoiding

develop a verdict

form

suitable for submission to a jury.3

2.
2.

The April 27 Conference.

The April 27 Conference.
________________________

At

the next conference

the

parties wrangled over a

proposed verdict form.

led

Judge Keeton

that "we're

to remark

going to

The debate

have to

get

specific" about what elements of the TEN plan were "substantially

used" by the defendants.

particularization would

The judge explained that this degree of

assist

in "structuring

the claims

and

defenses

so

understand

that

can

them, [and]

understand

so that

them,

so

[the litigants]

the

jury

can

can understand

each other."

3.
3.

The June 1 Conference.

The June 1 Conference.
_____________________

judge cautioned that

fuzzy claim"

to me

he would not allow the jury

and urged the plaintiff's

clearly . . . your legal

additional

sought

At the third conference the

to consider "a

lawyer to "communicat[e]

and factual theory."

After some

discourse (during which the defendants unsuccessfully

leave

to

file

plaintiff's counsel

fresh

motions

for

summary

reformulated his position.

judgment),

He pledged that

____________________

3In the course of

made

this conference, plaintiff's lead counsel

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? . . .

the defendants?

Two, did he submit

Three is, did they use

it? . . .

it to

Four is,

he submit it . . . to them in a context in which one can imply

promise to

pay for it if

they use it? .

. .

And

did

then if [the

jurors] answer all of those correctly, I would say under that one
theory of the case, then you go to damages . . . ."

he

would prove

each of

plan, and

(1) an implied

the defendants

(2)

the

agreement between

for confidential

defendants'

Berkovitz and

disclosure of

appropriation of

the

the TEN

plan

in

derogation

of this agreement.

The court reiterated its concern

that this reformulation did not

plan

were novel

addition,

the

elements of

and

court

enumerate which elements of

which were

used

asked

plaintiff to

the

by the

his implied-in-fact contract claim,

defendants.

list

the

the

In

legal

and plaintiff's

counsel agreed to try again.

4.
4.

The July 18 Conference.

The July 18 Conference.
______________________

abandonment

The plaintiff's outright

of any cause of action based on the putative novelty

of any of the

elements contained in

the TEN plan dominated

early stages of the final conference.

maintained

elements

that

of his

the

plaintiff

reaffirmed its desire

Novelty aside, the defense

still

remaining implied

the

had

not

specified

contract claim.4

that Berkovitz state

the

The court

his cause of

action

with

particularity.

Noting

instructions, if given, would

that

Berkovitz's

proposed

jury

require the jury to find

that HBO

use" of the TEN plan,

the court

and/or Viacom made "substantial

asked Berkovitz to specify what this portended.

More

dissatisfied;

discussion

he reminded

ensued,

but

the

Berkovitz's counsel

judge

remained

that he

had the

____________________

4Following the parties' lead,

words of
implied

like import as a

we use "implied contract" and

rubric to cover not

only plaintiff's

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.

authority to require a plaintiff to state with particularity

theory underpinning his

the

case

because

particularization

summary judgment on

claim, and warned that

Berkovitz

orders.

had

The

failed

to

defendants

he might dismiss

comply

moved

the ground that all the elements

plan were in the public domain.

The court

the

with

the

orally

for

of the TEN

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

what he

case.

The

lawyer delineated

termed Berkovitz's

position "from day one":

the TEN

would

plan under circumstances

of some part

a reasonable

(or either of

Thus, if a defendant had

of that

person

them) used his

made some beneficial use

document, Berkovitz would

be entitled

to

The court described this iteration of Berkovitz's theory

as postulating

differentiate

not single

an

"all factors"

approach

among the elements of

out which

elements

misappropriated and used).

After

approach probably was "incorrect

entered

in which

expect compensation if they

work product.

relief.

Berkovitz gave the defendants copies of

an interlocutory

because it

the TEN plan

the plaintiff

did

not

(e.g., it did

claimed had

been

expressing its belief that the

as a matter of law,"

judgment for

the defendants

Berkovitz "time for filing something more."

the court

but gave

5.
5.

The Court's Final Order.

The Court's Final Order.
__________________________

apparently believed that the

judgment

either

as

Berkovitz

who

court had entered the interlocutory

sanction

for

failure

adequately

to

particularize

his claim

approach legally infirm

denied the motion and

or because it

found the

"all factors"

moved for reconsideration.

entered final judgment.

See

The court

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.

at

*5.

Consequently,

substantive grounds.

III.
III.

the

court

terminated

the

See id.
___ ___

case

on

First,

we

See id. at *9.

___ ___

DISCUSSION
DISCUSSION

Our

analysis

examine the lower

proceeds

court's final

in

three steps.

order and explain

why we

that order to be a species of sua sponte summary judgment.

we delineate the

Next,

legal standards that pertain to such judgments.

Finally, we dispose of the appeal.

A.
A.

deem

Characterizing the District Court's Final Order.

Characterizing the District Court's Final Order.

_______________________________________________

We find no fault with the judge's decision to convene a

series of

issues

pretrial conferences

and ascertaining

consumption.

devoted largely to

which issues

Federal district

their crafting of

were fit

Piper Aircraft Corp.,

_____________________

985

for the

courts enjoy wide

the pretrial process, see,

___

F.2d 1438,

refining the

jury's

discretion in

e.g., Cleveland v.
____ _________

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

the

claims asserted against him

claims rest."

Rodriguez
_________

and the grounds

on which those

v. Doral Mortgage Corp., 57

____________________

F.3d 1168,

1171 (1st Cir. 1995).

In

powers and

only

this instance,

succeeded in

the court

made adroit

winnowing the plaintiff's

one claim remained

the "all factors" approach.

use

of its

claims until

the implied contract claim premised on

There are three

possibilities that

might explain why

the court entered judgment in

favor on this last claim:

(1) the claim may have depended upon a

flawed legal theory, or (2) it

(in defiance of the court's

may

may have been stated too

predicate.

the "all factors" approach

court

[the

possibilities.

stated that

"all

factors"

it had

As to legal

final order rules

insufficiency, the

"[a]ssum[ed], without

approach

upon

which

Though the

in various respects

at various times, careful perscrutation of the

out two of these

loosely

particularization orders), or (3) it

have lacked a sufficient evidentiary

court criticized

the defendants'

deciding, that

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.

This

insufficiency.

is

leaves

the

third

Unlike the other

strengthened by the

wrote "that the plaintiff

See id. at *9.

___ ___

possibility:

evidentiary

possibilities, that explanation

language of the final

order.

has provided no evidence from

10

The court

which a

jury could decide

supporting . . .

. . . that in

this case factual circumstances

a duty [of confidentiality] arose at some point

during the negotiations

same lines, the court

of the parties."

Id. at
___

*5.

added that "[a] jury could

Along the

not reasonably

find, on this evidence, that factual conditions prerequisite to a

contractual

or fiduciary

Consequently,

duty

Berkovitz's

existed

implied

will not

paint the

this

contract

"survive[] examination on the merits."

We

in

case."

claim

did

Id.
___

not

Id. at *9.
___

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.

read,

discounts

the other

possibilities

Here, the order, fairly

and

disposes of

plaintiff's implied contract claim on a substantive ground:

of evidence.

court's

the

lack

Accordingly, we are constrained to characterize the

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.
B.

Elucidating the Applicable Legal Standards.

Elucidating the Applicable Legal Standards.
__________________________________________

It is apodictic that district courts have the

grant summary judgment sua sponte.

power to

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

complement

Cir.

1989).

the courts'

Properly

deployed,

case management

that

authority.

power

can

After all,

11

pretrial conferences aid district

simplification

of

the

issues,

courts in "the formulation and

including

frivolous claims or defenses."

Fed. R. Civ.

this

promote

process

is designed

to

the

elimination

P. 16(c)(1).

efficiency and

of

Since

conserve

judicial resources, see In re Two Appeals, 994 F.2d 956, 965 (1st
___ _________________

Cir.

1993),

"[t]here

is

no

reason

elimination of non-trialworthy claims]

summary judgment."

note to

pretrial

dispute

to

require

that

[the

await a formal motion for

Fed. R. Civ. P. 16(c)(1) advisory committee's

1983 amendment; accord

______

Autobody, 43 F.3d
________

to

Aetna Cas. & Sur. Co. v. P & B

______________________
______

1546, 1568 (1st Cir.

conference

discloses that

no

1994).

Thus,

material

when "the

facts are

in

and that the undisputed facts entitle one of the parties

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

judgment sua sponte.5

See
___

the entire

case by

granting summary

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

to dodge the bullet.

on

unbesought

To

summary

an adequate opportunity

this end, we have placed two conditions

judgments.

First,

ordinarily may order summary judgment on its

district

court

own initiative only

____________________

5A district
sua

court also

may grant partial

sponte, removing some (but

fewer than all)

claims or defenses from the case.

994

F.2d 529,

530

(8th Cir.

summary judgment

of the parties'

See, e.g., Hubbard

___ ____ _______

1993);

v. Parker,
______

National Expo., Inc.

_____________________

Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir. 1987).
______________________

12

v.

when

discovery is

enjoyed

See
___

sufficiently advanced

a reasonable

Stella, 4 F.3d
______

Second, the court may

opportunity to

at 55;

that the

glean the

Jardines Bacata,
_______________

parties have

material facts.

878 F.2d

enter summary judgment sua sponte

at 1561.

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

judge,

to the

will be

held

itself"); Quaker State, 884

_____________

district

court's power

to

initiative must be exercised

of

Rule 56").

must give the

standards

the district

enunciated in

F.2d at 1513

order summary

Rule

56

(explaining that

the

judgment

own

on its

"according to the rigorous protocol

This means, of

course, that a

targeted party at least

nisi prius court

ten days within

which to

proffer

affidavits or other evidence

specific concerns.

in response to the court's

See Stella, 4 F.3d at 56.

___ ______

Appellate

review

spontaneous

nature of

other grant

of summary

is

equally

the trial

unaffected

court's action.

judgment, the court

As

of appeals

by

the

with any

affords

13

plenary

review

to

decision

granting

sua

sponte

summary

judgment,

and reads the record

the targeted party.

in the light

most hospitable to

See Quaker State, 884 F.2d at 1513.

___ ____________

C.
C.

Applying the Standards.

Applying the Standards.
______________________

These standards inform the disposition of this

Having

scoured the

record, we

believe that the

appeal.

district court

failed to give the plaintiff adequate notice of the basis for the

action that the

court ultimately took, and that,

judgment cannot stand.

When

a court

We explain briefly.

charts a

litigants are entitled to rely

bearings mid-course

the parties.

therefore, the

procedural route,

on it.

A court cannot

without signalling the

lawyers and

alter its

impending change

to

See Foster-Miller, Inc. v. Babcock & Wilcox,

___ ____________________
_________________

46

F.3d

138,

148-49

principle is

own

Here,

to

use

the progress

(applying

Cir.

1995)

this

innovative

of a

for counsel

sua

orders

in

an

the elements of

[his] legal

effort

4 F.3d

sponte summary

the rule,

the judgment

to

at 55-56

judgment).

see Berkovitz,
___ _________

to proffer

See id. at *1 (describing the

___ ___

evidence sufficient to support

this

court's obligation to afford "an

opposing

as requiring

that

elect on their

admissible evidence"), and apparently

he had honored it.

of-claim

methods

obviously understood

supra, at *2 (acknowledging the

_____

relevant and

out

case"); Stella,
______

principle to

the judge

opportunity

(pointing

especially pertinent "[w]hen judges

initiative

accelerate

(1st

Berkovitz "to

all

thought that

particularity-

proffer admissible

the findings necessary to satisfy

theory"); id. at
___

*5 (stating

that

14

Berkovitz

evidence

was "given

an opportunity

that might be material").

to proffer

Yet the

any additional

record simply does

not bear out the court's recollection.

One part

of the problem relates

of-claim

orders.

The

writing,

but

delivered

court did

them

not

ora

to the particularity-

reduce those

sponte

at

the

orders

to

pretrial

___

conferences

that

we

have

conferences

took place in the

transcripts

now

have

been

______

chronicled.

Nonetheless,

presence of a

prepared.6

the

court reporter and

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

appears to have

district court

changed course without giving the targeted party

sufficient forewarning.

When the court informed the plaintiff at

the

1) conference

penultimate

adverse judgment,

(June

At

the last

it

it linked this possibility

insufficiency but to

comply with

that

the plaintiff's

(July

18)

enter an

not to evidentiary

failure satisfactorily

the particularity-of-claim orders.

conference

might

the court

See id.
___ ___

reinforced

to

at *3.

this

linkage by discussing

tandem

with

articulate

approach.

its

comments

avenues

See,
___

its entry of an

on

of legal

e.g., id.
____ ___

the

relief

In its

interlocutory judgment in

plaintiff's

beyond

inability

the "all

to

factors"

written opinion, however, the

____________________

6While the four conferences listed in our chronology were on

the

record,

(November 21,

the court

convened at

1994) for which

The clerk's notes

least one

no transcript has

on the docket sheet regarding

are unilluminating.

15

other conference

been supplied.

this conference

court veered in

claim

a different

predicated on

direction.

the "all

It

explained that

factors" approach

would not

the

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

_____________________

duty

[of

confidentiality]

negotiations of the

Prior to

making

arose

parties."

this ruling,

at

Id. at
___

the

some

supporting such a

point

during

*5 (emphasis

court had

neither

the

supplied).

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,

opposite

the court's

direction.

pre-ruling statements pointed

We cite

two

examples.

conference plaintiff's counsel strove

of his

him,

client's implied contract

stating:

"I don't want

At

the

to embellish the

claim.

to talk

The

in the

June 1

elements

court interrupted

about the

proof at this

point.

I just want to talk about the legal elements. . . ."

second

example is

declaration

on

drawn from

this occasion

"incorrect as a

matter of law"

the July

that

the

18 semble;

The

the court's

plaintiff's claim

tended to render any

was

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
makes
the

evidence.

The plaintiff's

manifest Berkovitz's
case either

as

motion for reconsideration

belief that the

a sanction

or

court defenestrated

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

deficiencies

on

the

related to

ground

that

there

the plaintiff's

proof

were

evidentiary

of one

or more

contractual relationships.

16

evidence supporting that claim nugatory.

The question that confronts us

factors" approach is (or

is not whether the "all

is not) legally sound.

Similarly, the

question is not whether there is (or is not) adequate evidence in

the

record

to

approach.

plaintiff

defeat

summary judgment

The question, rather,

a meaningful

supporting his

on

the

is whether the

opportunity

to cull

position, and to present

"all factors"

court gave the

the best

evidence

that evidence, together

with developed legal argumentation, in opposition to the entry of

summary judgment.

843 F.2d 34,

37 (1st Cir. 1988).

the opportunity

Nor

apparent

court

See Stella, 4
___ ______

if one existed

are

we comfortable

miscommunication to the

F.3d at 55; Bonilla v.

_______

On this

Nazaro,
______

record, we think that

was too poorly defined.8

shifting

plaintiff.

the

blame for

To be

the

sure, this

from time to time has refused to permit appellants to take

advantage

district

of supposed oversights that had not been called to the

court's

attention

by

way

of

timeous

motion

to

reconsider.

See, e.g., United States v. Schaefer, ___ F.3d ___,

___ ____ _____________
________

____________________

8There
to

are four reasons why it is not a satisfactory answer

suggest that the plaintiff had an opportunity to proffer this

evidence

in connection

motions.

First,

insufficiency

the

of such

Second, Judge Skinner

whether

with

the defendants'

defendants forswore
evidence when

entered into such

thereafter

changed

any reliance

they filed

56

on the

those motions.

neither focused on nor purported to decide

the plaintiff could prove

implied contracts,

original Rule

the existence of

but, rather, assumed that

contracts.

one or more

the defendants had

Third, the contours

dramatically,

and Judge

of the

Keeton

case

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

contractual relationship.

17

existence

of

the

requisite

___ 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

motion

reconsider,

raising all the

grounds that

time.

was

until

the

district

court ruled

on

the

motion that

the

spotlight

suddenly

swung

to

It

reconsideration

not

evidentiary insufficiency.

might

have filed

a second
______

While the

motion for

were apparent

to

plaintiff

at the

theoretically

reconsideration at

that

time,

the appeal

period

reluctant to fault a

ask

trial

decision.

was

running;

and, moreover,

suitor who, like Berkovitz, chooses

court more

Discretion,

than

once

after all,

to

reconsider an

is often the

we

are

not to

adverse

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

properly advertised summary judgment

make the

attempt.

but he

is entitled to

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.
opinion.
_______

Costs in favor of the plaintiff.

Costs in favor of the plaintiff.
_______________________________

18