USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
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No. 96-1197
CME, ASSOCIATES, INC.,
AS IT IS THE GENERAL PARTNER OF
CME GROUP, LTD.,
Plaintiff, Appellee,
v.
JOSEPH D. FORD AND SHIRLEY ANN FORD, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy J. Gertner, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Boudin, Circuit Judge, _____________
and Ponsor,* District Judge. ______________
____________________
Alan R. Hoffman with whom John R. Cavanaugh and Lynch, Brewer, ________________ __________________ ______________
Hoffman & Sands, LLP were on brief for appellants. ____________________
Judith Gail Dein with whom James J. Arguin, Warner & Stackpole, _________________ ________________ ___________________
LLP and Christopher Nolland were on brief for appellee. ___ ___________________
____________________
October 17, 1996
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
Per Curiam. This is an action on a promissory note by ___________
CME Associates against the Fords, two of whom were co-signers
of the note. The district court granted partial summary
judgment in favor of CME, establishing the senior Fords'
liability on the note. A number of other issues remain to be
resolved, but the court entered a separate judgment pursuant
to Fed. R. Civ. P. 54(b).
The Fords' primary defense to the note was an alleged
oral modification of the terms of the note by the prior
holder, the FDIC. The district court rejected this defense
on the ground that the note's current owner, CME, is a holder
in due course protected by Massachusetts law against such
modifications absent notice. See Mass. Gen. Laws ch. 106, ___
3-305(2)(e). We are satisfied from a review of the record
that CME did not have notice and that there was insufficient
evidence to the contrary to warrant a trial on this question.
The Fords also argued that CME's foreclosure sale of
real property securing the note was conducted in a
commercially unreasonable fashion. E.g., RTC v. Carr, 13 ____ ___ ____
F.3d 425 (1st Cir. 1993). In effect, the Fords said that the
sale was conducted in a negligent manner. But their
affidavit to this effect did not even purport to show that it
was made by someone with knowledge of the facts as required
by Fed. R. Civ. P. 56(e). The Fords say that more time
should have been allowed for discovery concerning the conduct
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of the sale, but this is a matter largely within the purview
of the district court, Ayala-Gerena v. Bristol Myers-Squibb ____________ ____________________
Co., 95 F.3d 86, 91 (1st Cir. 1996), and we perceive no abuse ___
of discretion. Moreover, the record does not reflect that
the Fords made anything approaching an adequate showing
before the district court to justify invocation of the
"escape hatch" under Fed. R. Civ. P. 56(f). Paterson-Leitch _______________
Company, Inc. v. Massachusetts Municipal Wholesale Electric ______________ ___________________________________________
Company, 840 F.2d 985, 988-989 (1st Cir. 1988). _______
No other issues argued by the Fords in this case require
further comment. It would be helpful in the future for the
district court to be more explicit in setting forth its
express determination that there is no just reason for delay
as required by Fed. R. Civ. P. 54(b).
Affirmed. ________
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