Bose Corporation v. Ejaz

United States Court of Appeals
For the First Circuit

No. 12-2403

BOSE CORPORATION,

Plaintiff, Appellee,

v.

SALMAN EJAZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Emily E. Smith-Lee, with whom Sana Abdullah and Smith Lee
Nebenzahl LLP were on brief, for appellant.
Jeffrey S. Patterson, with whom Christopher S. Finnerty,
Morgan T. Nickerson, and Nelson Mullins Riley & Scarborough LLP
were on brief, for appellee.

October 4, 2013
 LYNCH, Chief Judge. Plaintiff Bose Corporation won

summary judgment on its breach of contract and trademark claims

against defendant Salman Ejaz. Bose Corp. v. Ejaz, No. 11-10629,

2012 WL 4052861 (D. Mass. Sept. 13, 2012). Ejaz admitted to

selling home theater systems manufactured by Bose for use in the

United States to customers in other countries, selling them across

international markets to take advantage of higher retail prices

abroad. Bose asserted that Ejaz sold its American products in

Australia without Bose's consent even though he had signed a

settlement agreement promising not to do so after he had made

similar sales in Europe. Ejaz appeals, and we affirm.

I.

Because this case comes to us following Bose's motion for

summary judgment, we recite the facts in the light most favorable

to Ejaz.

Ejaz first began selling Bose products online through

eBay as early as 2005. He was not an authorized reseller or

distributor of Bose products. Rather, he sought to take advantage

of the fact that the price of electronics can vary significantly

between different countries, and would buy electronics in one

country and resell them in another. Products sold in this way are

known as "gray market goods" because the goods themselves are

legitimate and unaltered products of the claimed manufacturer, but

they are sold outside of their intended retail markets.

-2-
 Throughout 2005 and 2006, Ejaz sold Bose products

designed for use in the United States to customers in other

countries, mostly in Europe. Bose soon became aware of Ejaz's

activities and approached him in late 2006 with threats of legal

action. At that time, Bose indicated that Ejaz could be liable for

roughly $250,000 for trademark infringement based on his

unauthorized sales of Bose products. Bose then went on to offer a

settlement: in essence, Bose would drop all of its existing legal

claims against Ejaz, including a suit that it had already filed in

the United Kingdom, and in exchange, Ejaz would not sell Bose

products without Bose's permission.

Negotiations over the settlement were tense. Ejaz chose

to be unrepresented and later stated that he found the tactics

Bose's lawyers used "very pressurizing, very intimidating." He was

recently married, and he and his wife were "anxious to resolve the

dispute." Ejaz felt as though Bose's lawyers were implicitly

suggesting throughout the negotiations that he would go to jail if

he did not reach an agreement with Bose, although he never claims

such threats of criminal prosecution were actually made. By

January of 2007, Ejaz agreed to settle the claims.

The agreement was executed through two documents. First,

the parties agreed to the terms of a written Settlement Agreement.

The Settlement Agreement released all of Bose's preexisting claims,

including those not related to the U.K. lawsuit, and prohibited

-3-
Ejaz from selling Bose products anywhere in the world without

Bose's prior consent. It further provided that Ejaz would owe Bose

$50,000 in liquidated damages for every violation of the Settlement

Agreement. Ejaz signed the Settlement Agreement on January 27,

2007. Bose signed it on February 26, 2007, and it took effect on

that date. Second, the Settlement Agreement included a Consent

Order, to be filed in the British High Court of Justice. The

Consent Order was filed with that court on February 23, 2007, and

issued by that court on March 9, 2007. The Consent Order

terminated the U.K. lawsuit in exchange for Ejaz's promise to stop

selling Bose products in the European Union.

Not long after executing the Settlement Agreement, Ejaz

violated it. As he wrote in an email, "greed got [the] better of

[him]," and he started selling Bose products in Australia. In

response, Bose initiated the present case. Bose sought damages

against Ejaz for breach of the Settlement Agreement on seven

occasions.1 It also added further claims, of which only its claim

for trademark infringement is relevant here.

After discovery, Bose moved for summary judgment. Ejaz

opposed the motion, claiming that there were a number of disputed

material facts relating to several contract defenses. He further

1
By his own admission, Ejaz sold at least seven units in
Australia. For purposes of this case, Bose has decided to rely on
that admission and seek recovery for seven violations of the
Settlement Agreement rather than try to prove a potentially much
greater number of sales.

-4-
maintained that Bose had not carried its burden of proving each

element of its trademark claim.

Ejaz also asked the district court to extend discovery

before ruling on Bose's motion for summary judgment. He complained

that Bose's corporate representative had been unable to answer

questions on many of the topics for which he had been designated to

give deposition testimony on Bose's behalf. That inability was

particularly problematic, Ejaz maintained, because Bose had

previously opposed a motion to extend discovery by explaining that

Ejaz would be able to obtain all the information he needed by

deposing its corporate representative. Ejaz argued that Bose had

thus obstructed his discovery attempts, and that he should be

granted more time for discovery as a result.

Without ruling on the motion to extend discovery, the

district court granted summary judgment in favor of Bose on its

breach of contract and trademark infringement claims. Ejaz now

appeals. He argues that the Settlement Agreement, or at least its

liquidated damages provision, is unenforceable, and that the

district court erred in holding him liable under it on summary

judgment. He further argues that genuine questions of material

fact remain such that summary judgment on the trademark

infringement claim is inappropriate. Finally, he contends that the

district court abused its discretion in declining to extend

-5-
discovery. We reject these claims and affirm the grant of summary

judgment.

II.

We review the district court's grant of summary judgment

de novo, drawing all reasonable inferences in favor of the

nonmoving party. Rockwood v. SKF USA Inc., 687 F.3d 1, 9 (1st Cir.

2012). Summary judgment is appropriate "when there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law." Cortés-Rivera v. Dep't of Corr. & Rehab. of

P.R., 626 F.3d 21, 26 (1st Cir. 2010).

According to Section 8.4 of the Settlement Agreement,

"interpretation and performance of [] [the] Agreement" is governed

by Massachusetts law.2 Under Massachusetts law, a breach of

contract claim requires the plaintiff to show that (1) a valid

contract between the parties existed, (2) the plaintiff was ready,

willing, and able to perform, (3) the defendant was in breach of

the contract, and (4) the plaintiff sustained damages as a result.

See Singarella v. City of Boston, 173 N.E.2d 290, 291 (Mass. 1961).

Ejaz contests only two elements of Bose's case: whether a valid

contract existed and whether the contract's liquidated damages

clause is enforceable.

2
The parties have not raised any choice of law issues and
instead assume that Massachusetts law applies. We will do the
same.

-6-
A. Contract Validity

Ejaz offers four arguments to explain why the Settlement

Agreement is not a valid contract: (1) there was no consideration

supporting the Settlement Agreement, (2) there was no meeting of

the minds when the parties signed the Agreement, (3) the Settlement

Agreement is unconscionable, and (4) he signed the Settlement

Agreement under duress.

1. Consideration

Ejaz argues that the Settlement Agreement lacked

consideration because, although it purported to release Bose's

legal claims against Ejaz, that release was illusory, as the

earlier Consent Order in the British courts had already released

those same claims. This argument is contradicted by the facts of

the case in three respects: the Consent Order was not an "earlier,"

separate agreement, but rather part and parcel of the Settlement

Agreement; the actual issuance of the Consent Order was not

earlier; and the releases were not coextensive. Ejaz signed the

Settlement Agreement on January 27, 2007 and has not identified any

releases predating that agreement. The Settlement Agreement became

effective upon Bose's signing it on February 26, 2007. The Consent

Order was not issued until March 9, 2007, after both parties had

executed the Settlement Agreement. Additionally, the Consent Order

released only those legal claims at issue in the U.K. litigation,

while the Settlement Agreement released all legal claims,

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regardless of location. Ejaz did receive consideration for his

promises in the Settlement Agreement.

2. Meeting of the Minds

Ejaz offers two arguments for his claim that there was no

meeting of the minds. First, he contends that he subjectively

attached a different understanding to the contract than Bose did:

Bose believed, in accordance with the contract's explicit language,

that Ejaz would be barred from selling Bose products anywhere

without permission, while Ejaz believed that he would be barred

from selling Bose products only in the United States and United

Kingdom, leaving him free to sell in Australia. Second, he argues

on appeal that he never even saw the terms of the Settlement

Agreement before signing it, and that instead he was merely given

a signature page that he thought corresponded to the Consent Order,

which he had previously reviewed.

Ejaz's subjective belief is insufficient to invalidate

the contract. Absent fraud, an individual "who signs a written

agreement is bound by its terms whether he reads and understands

them or not." Awuah v. Coverall N. Am., Inc., 703 F.3d 36, 44 (1st

Cir. 2012) (quoting St. Fleur v. WPI Cable Sys./Mutron, 879 N.E.2d

27, 35 (Mass. 2008)) (internal quotation mark omitted). Ejaz falls

directly within the scope of this rule.

Ejaz's second argument attempts to avoid that rule by

asserting that he was defrauded, arguing Massachusetts binds an

-8-
individual to the terms of the contract he signs only "in the

absence of fraud." Haufler v. Zotos, 845 N.E.2d 322, 333 (Mass.

2006). But that argument is completely unsupported by the record.

Fraud is an affirmative defense that must be pleaded with

particularity, see Fed. R. Civ. P. 9(b), and Ejaz failed to do so.

Indeed, his answer to the complaint never even makes the contention

that Ejaz presses in his brief, that Bose had Ejaz sign the

Settlement Agreement without his knowledge; much less does it give

specific details about any allegedly fraudulent transaction.

Without those specific details, Ejaz's fraud claim cannot prevail.

See N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale,

567 F.3d 8, 16 (1st Cir. 2009).

Additionally, regardless of the quality of Ejaz's

pleadings, the evidence in the record shows that Ejaz did have the

full Settlement Agreement and knew what he was signing: he stated

in his deposition that he "tried [his] best to read it" and signed

it on the same day he received it; that he had his wife review the

document; and that he "must've read" the whole Settlement Agreement

when he signed it. As a result, the contract does not fail for a

lack of meeting of the minds.

3. Unconscionability as Defense to the Contract

Ejaz claims that Bose's lawyers used heavy-handed tactics

to get him, unrepresented by counsel, to sign the Settlement

Agreement. Unconscionability is an affirmative defense, placing

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the burden of proof on Ejaz. See E.H. Ashley & Co., Inc. v. Wells

Fargo Alarm Servs., 907 F.2d 1274, 1278 (1st Cir. 1990). Under

Massachusetts law, unconscionability requires a "two-part inquiry,"

in which the defendant must prove both "procedural" and

"substantive" unconscionability. Trans-Spec Truck Serv., Inc. v.

Caterpillar Inc., 524 F.3d 315, 329 (1st Cir. 2008) (quoting

Zapatha v. Dairy Mart, Inc., 408 N.E.2d 1370, 1377 n.13 (Mass.

1980)) (internal quotation marks omitted).

The evidence does not show substantive unconscionability

as to the making of the contract here. We discuss later the

discrete issue of the liquidated damages clause. Contracts are

substantively unconscionable if they show a "gross disparity" in

consideration that makes them facially unfair. E.g. Waters v. Min

Ltd., 587 N.E.2d 231, 234 (Mass. 1992) (finding "gross disparity"

where annuity with $189,000 immediate cash value was sold for

$50,000, and citing as unconscionable another case in which a trust

interest worth $1,100,000 was sold for $66,000). The record in

this case shows that, at the time he signed the agreement, Ejaz

understood that he would be relieved of legal liability that could

have reached $250,000 in the U.K. litigation alone.3 Because the

3
The record is unclear as to whether the $250,000 figure
refers specifically to the U.K. litigation, which was addressed in
the Consent Order. But that distinction is immaterial, because the
Settlement Agreement settled all claims, including those covered by
the Consent Order, and incorporated the Consent Order within its
terms.

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financial benefit for him was at least a quarter of a million

dollars in liability avoided, no reasonable factfinder could

conclude that Ejaz has met his burden of proof in his attempt to

establish unconscionability.

4. Duress

Duress is an affirmative defense for which Ejaz must

prove three elements: "(1) he has been the victim of some unlawful

or wrongful act or threat; (2) the act or threat deprived him of

his free or unfettered will; and (3) due to the first two factors,

he was compelled to make a disproportionate exchange of values."

Happ v. Corning, Inc., 466 F.3d 41, 44 (1st Cir. 2006). Ejaz

contends that Bose acted wrongfully by pressuring and intimidating

him using what he says he perceived as threats of jail time, and

that Bose's attorneys violated the Massachusetts Rules of

Professional Conduct by advising him, as an unrepresented party, to

sign the Settlement Agreement. These actions, he claims,

constituted duress.

Ejaz mischaracterizes the facts of this case. Bose's

lawyers approached him, a savvy internet businessman with total

annual eBay sales near $75,000 and growing quickly,4 to offer a

settlement agreement to avoid a lawsuit. Those lawyers, according

to Ejaz, told him that there could be "repercussions" to his

4
Ejaz's sales the previous year, 2005, were no higher than
$50,000; by 2010, his financial records showed sales exceeding two
million British pounds annually.

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actions, which Ejaz took to mean criminal sanctions. However, Ejaz

does not assert that Bose actually made threats, as opposed to

statements that he subjectively interpreted to be threatening.

Indeed, as he described the exchange in his deposition, Bose's

lawyer "might have said [something] along the lines that people do

end up going to jail but I don't remember him exactly saying that,

but behind the words was that implication. Or at least I felt that

way." Ejaz later stated in his affidavit: "I do not remember the

precise words that they used about the consequences of not signing

the agreement, but what I understood from those conversations is

that I could face penalties of as much as $250,000 and possible

imprisonment if I did not agree to what they were asking." None of

these statements show that Ejaz was ever actually threatened or

that Bose's counsel delivered any threats; rather, they show only

that Ejaz believed he could potentially face legal penalties due to

his unlawful sales. This is far from the "unlawful or wrongful act

or threat," Happ, 466 F.3d at 44, required to establish a duress

defense.

More importantly, Ejaz has provided no basis to believe

that the statements by Bose's counsel "deprived him of his free or

unfettered will," id., and forced him to sign the contract.

Instead, the facts show that Ejaz was able to review the proposed

agreement at his own pace, was free to seek advice from others (and

actually did seek advice from his wife), and voluntarily signed and

-12-
returned it. As long as the option to reject the contract

remained, Ejaz did not act under duress. Ismert & Assocs., Inc. v.

New Eng. Mut. Life Ins. Co., 801 F.2d 536, 549-50 (1st Cir. 1986)

(noting that the option to refuse to sign a release and to litigate

instead would defeat a claim for duress, and observing that "a

strict interpretation" of the concept of "no real choice" is "what

the Massachusetts courts intend" as a policy matter).

B. Enforceability of Liquidated Damages Clause

Apart from the validity of the entire contract, Ejaz also

challenges the Settlement Agreement's liquidated damages clause in

particular. He argues that it is unenforceable because it is not

reasonably proportional to Bose's anticipated damages and

difficulties of proving loss at the time the Settlement Agreement

was executed.5 This is a closer question.

5
Ejaz also makes two other arguments, but both are easily
rejected. First, he claims that there is a dispute over whether
the parties intended the clause to serve as liquidated damages or
as a penalty -- a genuine dispute of material fact that prevents a
grant of summary judgment. That argument is simply wrong. Whether
a clause imposes enforceable liquidated damages or an unenforceable
penalty is a question of law. NPS, LLC v. Minihane, 886 N.E.2d
670, 673 (Mass. 2008). Even if the clause's effect were a question
of fact, Ejaz points to no record evidence indicating that he
believed at the time of contracting that the clause was intended to
be a penalty. Second, Ejaz claims that the clause is unenforceable
because it is disproportionate to the damages Bose actually
suffered. But this argument cannot square with Kelly v. Marx, 705
N.E.2d 1114 (Mass. 1999), which explicitly stated that the damages
actually suffered have no bearing on the enforceability of a
liquidated damages clause. See id. at 1117.

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 Massachusetts law allows enforcement of a liquidated

damages clause "so long as it is not so disproportionate to

anticipated damages as to constitute a penalty." TAL Fin. Corp. v.

CSC Consulting, Inc., 844 N.E.2d 1085, 1093 (Mass. 2006). The

inquiry depends significantly on the facts of the case, see Honey

Dew Assocs., Inc. v. M&K Food Corp., 241 F.3d 23, 28 (1st Cir.

2001), but in general, a liquidated damages clause "will usually be

enforced, provided two criteria are satisfied": (1) the actual

damages would have been difficult to ascertain at the time of

drafting, and (2) the amount was a "reasonable forecast" of damages

that would actually occur in a breach. NPS, LLC v. Minihane, 886

N.E.2d 670, 673 (Mass. 2008) (quoting Cummings Props., LLC v. Nat'l

Commc'ns Corp., 869 N.E.2d 617, 620 (Mass. 2007)) (internal

quotation mark omitted). Ejaz bears the burden of proving that the

clause is unenforceable, and reasonable doubts are drawn in favor

of Bose, as the provision's proponent. See id. at 673; Honey Dew,

241 F.3d at 27.

1. Ascertainability

Ejaz has not produced any evidence, or even argued in his

brief, that Bose's actual damages would be readily ascertainable.

Further, Bose showed that it would be difficult to calculate its

actual damages from a breach: it introduced evidence that Ejaz's

actions threatened Bose's goodwill and brand integrity, which Bose

calls its "most important asset," and showed that damage to

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goodwill and brand integrity is inherently difficult to quantify.

The law supports Bose. See Societe Des Produits Nestle, S.A. v.

Casa Helvetia, Inc., 982 F.2d 633, 640 (1st Cir. 1992) ("By its

very nature, trademark infringement results in irreparable harm

because the attendant loss of profits, goodwill, and reputation

cannot be satisfactorily quantified and, thus, the trademark owner

cannot adequately be compensated."). The liquidated damages

provision does not fail on this ground.

2. Reasonable Forecast

Ejaz has produced no record evidence suggesting that

$50,000 per sale was grossly disproportionate to or an unreasonable

forecast of the actual damages Bose would have expected. Instead,

he claims that the structure of the clause itself, providing

$50,000 in damages for every breach, without limit, shows that the

forecast is unreasonable. But a hypothetical larger range,

separated from the actual facts and the amount sought, does not

make a clause unreasonable. Rather, courts examine for

reasonableness the amount of liquidated damages actually sought.

See Space Master Int'l, Inc. v. City of Worcester, 940 F.2d 16, 16-

17, 20 (1st Cir. 1991) (denying summary judgment motion of

defendant seeking to avoid liquidated damages clause even though

clause provided for per-day late fees without limit); Perfect

Solutions, Inc. v. Jereod, Inc., 974 F. Supp. 77, 85 (D. Mass.

1997) (denying summary judgment motion of defendant seeking to

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avoid liquidated damages clause even though clause provided for

per-violation damages without limit).6

The Restatement also adopts this position, analyzing

liquidated damages as they are actually imposed rather than in

hypotheticals. See Restatement (2d) of Contracts § 356 cmt. b,

illus. 3 (contemplating valid enforcement of liquidated damages

clause providing for per-day late fees even though fees were

unlimited, where ten days of fees are sought).

Bose articulated a series of harms showing that the

liquidated damages clause is reasonable in this case.

6
Courts in other jurisdictions have followed the same
approach. See, e.g., ProTherapy Assocs., LLC v. AFS of Bastian,
Inc., 782 F. Supp. 2d 206, 218-19 (W.D. Va. 2011) (allowing
enforcement of liquidated damages provision granting uncapped
damages of $10,000 per breach across fifty-seven breaches); Elexco
Land Servs., Inc. v. Hennig, No. 11-CV-00214, 2011 WL 9368970, at
*6 (W.D.N.Y. Dec. 28, 2011) (reserving decision of whether
liquidated damages clause providing $25,000 per breach is
enforceable until plaintiff actually sought damages under the
clause); Mattingly Bridge Co. v. Holloway & Son Constr. Co., 694
S.W.2d 702, 704 (Ky. 1985) (allowing enforcement of liquidated
damages provision granting $750 damages per day late without limit
but reducing recovery from unreasonable 193-day penalty to
reasonable 32 and 2/3-day damages); Bd. of Cnty. Comm'rs of Adams
Cnty. v. City & Cnty. of Denver, 40 P.3d 25, 32 (Colo. App. 2001)
("If a contract stipulates a single liquidated damage amount for
several possible breaches, the damage provision is invalid as a
penalty if it is unreasonably disproportionate to the expected loss
on the very breach that did occur and was sued upon."); Anonymous
v. Anonymous, 649 N.Y.S.2d 665, 666-67 (N.Y. App. Div. 1996)
(liquidated damages provision allowing $500,000 per breach of
confidentiality agreement not, "in and of itself," unenforceable as
against public policy); cf. Rex Trailer Co. v. United States, 350
U.S. 148, 151-152 (1956) (uncapped statutory penalty of $2000 per
violation enforceable as liquidated damages rather than criminal
sanction for case of five violations).

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Specifically, Bose identified as its potential harms: loss of

revenue from each sale (Bose's retail price for each unit was

approximately $6500 (Australian)); harm to Bose's brand name;

downstream effects of harm to the brand name, such as interrupting

Bose's distribution chain and discouraging purchases by third

parties; enforcement costs due to the possibility that Ejaz could,

perhaps successfully, evade legal process, thereby increasing

Bose's costs (Ejaz had explicitly told Bose's lawyers that he "will

run away from the country if they come after me for any money");

and the possibility that Bose would not be able to prove all of

Ejaz's sales in court (in this very case, Bose relies on proof of

seven violations but asserts that there may have been many more).

The absence of affirmative proof of unreasonableness is

fatal to Ejaz's argument because he bears the burden of proof. See

NPS, 886 N.E.2d at 673. Since Ejaz has not introduced any evidence

to rebut Bose and show that $50,000 for each of seven violations

was an unreasonable forecast, he remains bound by the liquidated

damages clause. See Reed v. Zipcar, Inc., No. 12-2048, 2013 WL

3744090, at *3 (1st Cir. July 17, 2013) ("Reed's complaint contains

no allegations as to what a reasonable estimate of damages would

be. This is sufficient to defeat [Reed's] claim . . . .").

III.

Ejaz next challenges the district court's grant of

summary judgment against him on Bose's trademark infringement

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claim. A plaintiff alleging trademark infringement must prove two

elements: (1) the trademarks are "entitled to trademark

protection," and (2) "the allegedly infringing use is likely to

cause consumer confusion." Bos. Duck Tours, LP v. Super Duck

Tours, LLC, 531 F.3d 1, 12 (1st Cir. 2008).7

There is no dispute over the first element in this case.

Bose's trademarks are registered on the Principal Register of the

United States Patent and Trademark Office. Registration serves as

prima facie evidence that the trademarks are entitled to

protection, see 15 U.S.C. § 1057(b), and Ejaz has not contested

that evidence.

On the consumer confusion element, Ejaz argues that there

was a genuine dispute of material fact over whether his sales of

Bose products were likely to cause consumer confusion for two

reasons: any differences between the products suitable for use in

particular countries were trivial, and his customers on eBay would

have been aware of any differences before making their purchases of

products meant for use in other countries. In a gray market goods

7
Bose stated claims under both federal statutory law and
state common law but did not identify which state's common law
would govern. Regardless, the analysis here may be collapsed into
the federal claim structure because the common law trademark claims
in both Massachusetts and New Jersey -- Ejaz's home state and the
only other plausible candidate for the choice of law here -- both
require the same elements as the federal claim. See Jenzabar, Inc.
v. Long Bow Grp., Inc., 977 N.E.2d 75, 82 n.11 (Mass. App. Ct.
2012); Barre-Nat'l, Inc. v. Barr Labs., Inc., 773 F. Supp. 735, 746
(D.N.J. 1991).

-18-
case, "a material difference between goods simultaneously sold in

the same market under the same name creates a presumption of

consumer confusion as a matter of law." Societe Des Produits

Nestle, S.A., 982 F.2d at 640. Relying on this presumption, Bose

points to several material differences between its Australian

products and the American products that Ejaz sold in Australia.

Those differences include region coding, which will keep an

American DVD player from playing Australian DVDs and vice versa;

electrical power requirements, which prevent American electronics

from functioning on Australian power supplies and vice versa;

capabilities of the remote controls; durations of the products'

warranties; and the design and functionality of the products' radio

tuners.8 Evidence in the record, such as Bose's corporate

8
Ejaz initially contended that evidence of these differences
was not properly before the district court on summary judgment
because statements from Bose's corporate representative not made
based on personal knowledge would not have been admissible at
trial. See, e.g., Noviello v. City of Boston, 398 F.3d 76, 84 (1st
Cir. 2005); Fed. R. Civ. P. 56(c)(2) ("A party may object that the
material cited to support or dispute a fact cannot be presented in
a form that would be admissible in evidence."). Specifically, Ejaz
argued that Bose's only evidence on this point came from its Fed.
R. Civ. P. 30(b)(6) corporate representative; while an opposing
party may ordinarily offer the corporate representative's testimony
as a statement of a party-opponent, see Fed. R. Evid. 801(d)(2),
Ejaz has argued incorrectly that Bose had presented no basis for
making the testimony of its own representative admissible, because
he was testifying to matters outside his personal knowledge.
However, the evidence shows that Bose's representative testified on
his personal knowledge about differences in technical
specifications and warranties for different products. Further,
there was other record evidence, such as Ejaz's own admissions,
that at least one of the differences Bose identified -- the voltage
requirements -- was in fact a material difference.

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representative's testimony based on his personal experience and

Ejaz's testimony in his deposition, as well as Ejaz's later

admissions, supports that there are material differences in the

products.

Ejaz attempts to minimize the evidence of material

differences by asserting that his actual consumers were not in fact

confused. But that argument misses the mark. The law requires

only that the infringement is likely to cause consumer confusion,

not that it actually does so. See Societe Des Produits Nestle,

S.A., 982 F.2d at 640 ("[A] plaintiff need only show that a

likelihood of confusion is in prospect; a showing of actual

confusion is not required. Indeed, federal courts have routinely

granted injunctions in gray goods cases notwithstanding an absence

of evidence of actual consumer confusion." (citations omitted)).

To that end, Ejaz claims that consumers on eBay are less

susceptible to confusion than consumers in traditional stores. His

only evidence in support of this conclusion is his own affidavit,

in which he asserted that based on his experience, eBay customers

are "primarily bargain hunters, and understand that in exchange for

significant price savings they are not purchasing from authorized

re-sellers or distributors." That statement, however, does not

actually support his position because it explains only that eBay

consumers would not be confused about the identity of the sellers

of the products they bought; it gives no reason to believe that

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they would expect the products to function differently from

products sold by authorized distributors. Additionally, Ejaz's

generalizations fail to counter the specific proof Bose offered, in

the form of an email thread showing confusion by one of Ejaz's

actual eBay customers. In light of the presumption of consumer

confusion plus Bose's unrebutted evidence, no reasonable factfinder

could conclude that Ejaz had met his burden of showing that the

sales in question were not likely to cause consumer confusion.

IV.

Ejaz's final argument on appeal is that the district

court erred by declining to extend discovery before granting Bose's

motion for summary judgment.

The procedural history of the discovery in this case is

not complicated. The district court set an initial discovery

deadline of December 23, 2011, and later extended it to January 30,

2012. Ejaz served Bose with notice of a deposition of its

corporate representative on August 12, 2011, and actually deposed

the representative on January 27, 2012. At the deposition, Ejaz's

counsel complained on the record that Bose's Fed. R. Civ. P.

30(b)(6) representative had not sufficiently been able to answer

her questions about several topics on which he had been designated

to speak. Three weeks later, on February 18, 2012, Ejaz filed a

motion to reopen discovery under Rule 56(d) of the Federal Rules of

Civil Procedure, claiming that Bose had obstructed his efforts to

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obtain information in the case by providing an insufficiently

prepared representative. The district court did not address the

motion to reopen discovery and instead ruled on the summary

judgment motion. Ejaz argues that the court erred in doing so.

We review a district court's refusal to reopen discovery

for abuse of discretion. Vineberg v. Bissonnette, 548 F.3d 50, 55

(1st Cir. 2008). The same standard of review applies to the

decision to proceed with a summary judgment motion while a

discovery request remains outstanding. See Nieves-Romero v. United

States, 715 F.3d 375, 380 (1st Cir. 2013).

Here, the district court was well within its discretion

in ruling on the summary judgment motion first. A Rule 56(d)

motion requires its proponent to show via "an affidavit or other

authoritative document":

(i) good cause for his inability to have
discovered or marshalled the necessary facts
earlier in the proceedings; (ii) a plausible
basis for believing that additional facts
probably exist and can be retrieved within a
reasonable time; and (iii) an explanation of
how those facts, if collected, will suffice to
defeat the pending summary judgment motion.

Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 10 (1st Cir. 2007). In

this case, Ejaz made no showing in support of the third requirement

for a 56(d) motion -- namely, how any additional facts he collected

would defeat the pending summary judgment motion. Indeed, Ejaz

even suggested that no additional facts were needed, noting in his

brief opposing the motion for summary judgment that "Defendant

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contends that the existing record is sufficient to deny Plaintiff's

motion in its entirety." The district court did not abuse its

discretion in declining to act on the 56(d) motion before

considering the summary judgment motion.

V.

For the reasons stated above, the district court's

decision is AFFIRMED.

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