Northeast Drilling, Inc. v. Inner Space Services, Inc.

United States Court of Appeals
For the First Circuit

No. 00-1684

NORTHEAST DRILLING, INC.,

Plaintiff, Appellee,

v.

INNER SPACE SERVICES, INC.;
NATIONAL GRANGE MUTUAL INSURANCE COMPANY,

Defendants, Appellants,

v.

RANGER INSURANCE COMPANY, INC.

Counterclaim Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Circuit Judge,
and Lisi,* District Judge.

Richard L. Neumeier, with whom Timothy J. van der Veen and
McDonough, Hacking & Neumeier, LLP, were on brief, for
appellants.
Deirdre M. Smith, with whom Jerrol A. Crouter and Drummond
Woodsum & MacMahon, were on brief, for appellees.
 March 16, 2001

____________________
*Of the District of Rhode Island, sitting by designation

STAHL, Circuit Judge. During the construction of a

shipbuilding facility in Bath, Maine, a series of events,

primarily attributable to the caprices of nature, delayed the

schedule, forcing significant alterations to the work plan and

ultimately making the project more expensive than had been

anticipated. These events led to a dispute between the

project's dredging subcontractor, Inner Space Services, Inc.

("ISSI"), and the drilling and blasting subcontractor it had

hired, Northeast Drilling, Inc. ("NDI"), over who should bear

the additional costs arising from these various matters.

Following a six-day bench trial, the district court determined

that NDI should receive some of the payments it claimed were due

under its contract with ISSI, but that it was not entitled to

the full amount because it had failed to render complete

performance under its agreement with ISSI. The court also

awarded attorney's fees and interest to NDI.

On appeal, ISSI challenges a number of the district

court's factual findings, and argues that the court erred by

declining to make certain additional findings. ISSI also

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assigns error to several legal determinations made by the

district court, including the district court's failure to join

the general contractor as a party, its refusal to grant ISSI's

motion for judgment as a matter of law, and its approach to

calculating damages. We affirm in all respects.

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 I. Background

The facts of this case are chronicled extensively in

the district court opinion, Northeast Drilling, Inc. v. Inner

Space Servs., Inc., No. 99-173-P-H, 2000 WL 761020 (D. Me. Mar.

31, 2000), and so we restrict our discussion to the facts

bearing on this appeal. On September 21, 1998, ISSI, a

Massachusetts-based firm, entered into an agreement with

Atkinson Construction ("Atkinson"), the general contractor on

the Bath Iron Works Land Level Facility Construction Project

("BIW Project" or "Project"). The BIW Project, which took place

along the banks of the Kennebec River in Bath, Maine, involved

the creation of a fifteen-acre facility enabling Bath Iron Works

to build simultaneously three Navy destroyer ships and to launch

those ships into a floating dry dock. To this end, ISSI was

hired by Atkinson to lower the underwater rock table to a

suitable elevation through drilling, blasting, and dredging.

Before submitting its bid to Atkinson, ISSI had

contacted NDI, a drilling and blasting specialist headquartered

in Maine, about NDI's availability to perform work on the BIW

Project. After securing the subcontract with Atkinson, ISSI

concluded an agreement with NDI on November 2, 1998. According

to the terms of the ISSI-NDI contract, NDI was to be paid

$1,140,000 for its drilling and blasting work on the area of

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submerged rock specified in the Atkinson-ISSI contract.1 For

this sum, NDI agreed to perform blasting on a "6 x 6 grid, with

the intent of supplying 'diggable' rock for dredging."2 Nowhere

in the contract was the term "diggable" defined. The agreement

further provided that if, at some point during the Project, ISSI

asked NDI to perform drilling and blasting work outside of the

designated area in order to achieve the desired elevation

therein, NDI would receive a "proportional amount of any claims

made to Atkinson by ISSI" for such additional work. Pursuant to

the parties' arrangement, NDI was to be paid "if and only if

ISSI receives compensation" from Atkinson for work in this

"expanded" area.3 Finally, the timeline for NDI's performance

under the contract was structured to account for the stringent

environmental regulations protecting the Kennebec River's

sturgeon population. NDI was to commence work on or about

1This amount later grew to $1,182,561.16 based on additional
work that NDI completed pursuant to approved "change orders"
submitted to ISSI during the course of the Project.
2According to the initial 6' x 6' grid scheme, NDI would
drill a row of holes six feet apart in the rock, then drill
another row six feet away from the first row. NDI would then
insert blast charges in the holes and then simultaneously
detonate several rows of charges.
3Under the Atkinson-ISSI contract, ISSI was to seek payment
for work in this "expanded" area by submitting change-order
requests to Atkinson before authorizing NDI to begin drilling
and blasting work.

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November 15, mid-November being the point at which the sturgeon

typically vacate the affected area, and was to finish its

operations by the end of March of the following year, when the

fish were expected to return.

Unfortunately for the parties, the Kennebec River

sturgeon were uncharacteristically slow to swim away from the

Project area that year and, as a result, NDI did not receive

authorization to begin blasting until January 7, 1999. By that

time, ice floes had emerged on the surface of the river. This

floating ice posed a significant challenge to NDI's operations

by threatening to detach the detonation cords that NDI planned

to stretch from the drilling barge to the holes in the submerged

rock that contained the blast charges. In response to this

problem, NDI abandoned its original blasting plan, which called

for detonating several rows of explosives simultaneously, and

decided to blast one row at a time. This attempt at problem-

solving only created a new set of difficulties, however, as the

blasting of the first row of charges broke up the rock in the

surrounding area, making it nearly impossible to fulfill the

contractual obligation to drill another row of holes six feet

from the previous row. Accordingly, NDI proposed an alternative

to ISSI: it would extend the size of the drilling and blasting

grids from 6' x 6' to 6' x 7' or 6' x 8' while continuing to

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blast one row at a time. ISSI was reluctant to endorse this

enlarged-pattern approach, as it knew that its likely byproduct

would be larger pieces of rock that would be more difficult to

dredge, and it expressed these concerns, in writing and in

person, to NDI's president, Forrest Bradbury. Nonetheless, NDI

went forward with the modified plan, believing that it had

secured ISSI's acquiescence.

The ad hoc nature of this drilling and blasting

technique also forced the parties to incur unexpected costs

along the way. In order to account for the extra labor

necessitated by the single-row, enlarged-grid blasting

technique, Atkinson leased an additional drilling barge, known

to the parties as the "Hughes barge," and backcharged its cost

to ISSI. ISSI, in turn, deducted this cost from the amount to

be paid to NDI. Additionally, NDI was called upon by ISSI to do

drilling and blasting in the "expanded" area in an attempt to

improve the quality of the blasted rock inside the contract

area. ISSI, however, failed to submit a change-order request to

Atkinson, as required under its agreement with the general

contractor, until September 1999 -- nearly six months after NDI

had demobilized from the BIW Project site.

Although NDI ultimately did complete its drilling and

blasting work before the March 31 environmental window closed,

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the proportion of large rock it left behind made it impossible

for ISSI to do dredging work using the equipment already on

site.4 This forced ISSI to lease extra equipment and to spend

more time dredging the area, and as a result, it was required to

cancel a subsequent dredging contract in Boston, depriving it of

additional revenue. Furthermore, a survey of the site

commissioned by Atkinson after NDI's demobilization revealed

that some of the submerged land, particularly that located in

the "expanded" area, was not at the proper elevation.

Because of these problems, ISSI sent a default notice

to NDI in March 1999, asserting that NDI had failed to perform

its contractual obligations to provide "diggable" rock and to

lower the submerged rock to the proper elevation. Although it

made several payments after NDI's demobilization, ISSI refused

to pay the remaining $403,431 due NDI under the initial $1.14

million contract price. ISSI also refused to absorb any of the

cost of the "Hughes barge," electing to treat the full cost of

approximately $126,707 as a component of the drilling and

blasting operations for which NDI bore responsibility. Finally,

a dispute between Atkinson and ISSI over the cost of the

4
Before demobilizing, NDI used a jackhammer on the oversize
rocks in an attempt to reduce their size. However, NDI was not
able to remedy the problem to ISSI's satisfaction using this
approach.

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blasting and drilling performed by NDI in the "expanded" area

resulted in NDI not receiving any payments for that work, as the

contract provision dealing with work outside the target area

stated that NDI would only receive a proportional share of the

payments that ISSI obtained from Atkinson and ISSI did not

initially seek such sums.

On April 29, 1999, NDI sued ISSI in the Superior Court

of Sagadahoc County, Maine, claiming breach of contract, unjust

enrichment, quantum meruit, and equitable accounting, as well as

a cause of action under Maine law for delayed contractor

payments, 10 M.R.S.A. § 1114(4). ISSI removed the case to

federal district court based on the diversity of the parties and

the existence of a controversy in the requisite amount, and on

June 4, 1999, it filed an answer and counterclaim, asserting

that NDI's failure to produce adequately sized rock and to lower

the submerged rock to elevation amounted to negligence and a

breach of the parties' contract. Both NDI and ISSI subsequently

amended their complaints to add as defendants the parties'

respective insurance carriers in an attempt to collect on the

payment bonds that had been issued during the BIW Project.

Following a protracted discovery period, ISSI moved for

partial summary judgment on NDI's unjust enrichment and quantum

meruit claims. The district court denied this motion on January

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5, 2000. Six days later, ISSI moved to continue the trial

indefinitely pending resolution of its ongoing dispute with

Atkinson over the adequacy of ISSI's performance under the

Atkinson-ISSI agreement. The district court also denied this

motion. Finally, two weeks before the scheduled start of the

trial and weeks after the joinder deadline laid out in the

pretrial schedule had passed, ISSI moved under Fed. R. Civ. P.

19(a) to have Atkinson joined as a necessary party. The joinder

motion was considered, and denied, by Magistrate Judge Cohen.

At the start of the trial, ISSI filed a motion for

reconsideration of the magistrate judge's decision on the

joinder issue; the district court heard oral arguments and

denied the motion.5

The district court conducted a six-day bench trial,

primarily consisting of the testimony of officials of the two

firms and expert witnesses familiar with the industry practices

governing drilling, blasting, and dredging work. At the close

of all the evidence, ISSI moved for judgment as a matter of law,

asserting that NDI could not prevail on its claims because it

had breached its obligations under the agreement to blast

5
In its later written opinion, the district court reaffirmed
this finding, stating that "NDI's lawsuit is not to be dismissed
for insufficient joinder in failing to make Atkinson a party.
(ISSI was free to make Atkinson a party if it chose to do so.)".
Northeast Drilling, Inc., 2000 WL 761020, at *8.

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according to a 6' x 6' grid and to provide "diggable" rock. The

district court denied this motion.

On March 31, 2000, the court issued its written

findings of fact and conclusions of law. The court first found

that NDI's decision to deviate from the 6' x 6' blast grid did

not constitute a breach of contract because ISSI, despite its

expressions of concern, had acquiesced in the enlarged blast

pattern. Moreover, the court concluded that NDI had, in fact,

adequately blasted the rock down to the proper elevation; it

discounted as inconclusive the post-demobilization survey

indicating the insufficient elevation of some spots in the

target area, noting the possibility that a neighboring sand dump

in the Kennebec River may have caused the problem. With respect

to NDI's obligation to provide "diggable" rock, however, the

district court found that NDI had not fully performed. On this

point, the court, relying on expert testimony adduced at trial,

construed the term "diggable" rock as it appeared in the

contract to mean a quantity of rock in which no more than ten

percent of the sample exceeded one cubic yard in volume. In

this case, the court found that 30 percent of the rock that NDI

had left behind at the BIW Project site exceeded one cubic yard.

As to the "consequence" of NDI's incomplete performance, the

court determined that the failure to provide "diggable" rock

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lowered the value of NDI's services by $175,000. 6 The court

determined that this $175,000 figure for NDI's failure to fully

perform was precisely the same amount that ISSI could prove on

its counterclaims for negligence and breach of contract, and

that it therefore did not matter whether the $175,000 "credit"

to ISSI came in the form of a damage award on its counterclaims

or as a reduction in NDI's payment claim. Subtracting that

$175,000 figure from the remaining amount ($403,431) that ISSI

was withholding from NDI, the court determined that NDI was

entitled to receive an additional $228,431 from ISSI for the

work it had performed under the contract.

The district court also addressed NDI's claim of right

to payment for its drilling and blasting in the "expanded" area,

for which NDI only was to receive "proportional" compensation

from the amount Atkinson paid to ISSI, as well as its claim for

a partial credit for the "Hughes barge," a cost that it had been

required to fully absorb. The court relied on trial testimony

establishing that Atkinson and ISSI were on the verge of

6As to how it arrived at the $175,000 figure, the court
stated that it represented neither a "precise number that can be
calculated arithmetically from specific exhibits" nor an
"average [or] attempt to 'split the difference,'" but rather a
"factfinder's conclusion of what the approximately correct
number is when the parties have presented damage numbers at the
polar extremes in a factual setting of great uncertainty and
difficulties of proof (i.e., what happened underwater and why)."
Northeast Drilling, Inc., 2000 WL 761020, at *7.

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concluding a settlement in which Atkinson would pay ISSI

$140,000 for drilling and blasting done outside the contract

area,7 and concluded that the $140,000 figure was an accurate

assessment of the amount that ISSI was entitled to receive from

Atkinson. Alternatively, the district court found that NDI was

deserving of payment for its work in the expanded area because

"ISSI had the obligation to make a reasonably timely request

upon Atkinson [for payment] and failed to do so." Northeast

Drilling, Inc., 2000 WL 761020, at *2. Going further, the court

determined that "[b]ecause ISSI is the only party that knows

what NDI's proportional share is and because ISSI has provided

no evidence on this topic, there is no basis on which to reduce

the $140,000, and I find that NDI is entitled to the full

$140,000." Id. As to the "Hughes barge," the court found that

under the anticipated Atkinson-ISSI settlement, Atkinson was to

reimburse ISSI $81,560 for the barge's cost. Since NDI had paid

the full cost of the barge through ISSI's backcharging, and had

never been reimbursed by either ISSI or Atkinson, the court

7Although the district court stated in its March 31, 2000
opinion that a settlement agreement between Atkinson and ISSI
was pending, that agreement apparently had been reached on
February 28, 2000, between the end of the trial in this case and
the issuance of the court's opinion. While the occurrence of
this agreement has been made part of the record in this case,
its terms have not.

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awarded NDI the full $81,560 that ISSI was to receive from

Atkinson for this expense.

Finally, the district court determined that NDI was

entitled to interest under Maine law, 10 M.R.S.A. § 1114(4), for

the delayed payments by ISSI. The court found that ISSI was

obliged to pay interest on $83,431 because, although $403,431

remained to be paid on the original contract price, $175,000 of

that sum was being deducted by the court for NDI's incomplete

performance and ISSI had yet to receive $145,000 from Atkinson.

The court further determined that NDI was entitled to recoup

reasonable attorney's fees under Maine law, see 10 M.R.S.A. §

1118(4), in an amount "to be apportioned according to the degree

of its success." ISSI seasonably filed its notice of appeal.

On appeal, ISSI challenges both the district court's

factual and legal determinations. On the facts, ISSI points to

three findings made by the district court, mainly involving the

parties' performance under the contract, that it alleges were

erroneous. It also claims that the district court should have

made findings on twelve additional points. On the law, ISSI

attacks the district court's refusal to grant its motions to

continue the trial and to join Atkinson as a party, its denial

of ISSI's motion for judgment as a matter of law, and the

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permissibility of the court's method of assessing ISSI's damages

for NDI's imperfect performance.

II. Factual Findings

ISSI claims that the district court made three

erroneous factual findings in its written opinion. Moreover, it

claims that the court erred by not making twelve additional

findings of fact that it claims the overwhelming weight of the

evidence at trial would compel. According to ISSI, these

alleged factual mistakes, which relate to the parties'

performance under the contract, demand correction because they

played a pivotal role in the district court's legal analysis and

award of damages.

Under Fed. R. Civ. P. 52(a), we will not disturb the

district court's factual determinations unless they are clearly

erroneous. See Vinick v. United States, 205 F.3d 1, 6 (1st Cir.

2000) ("Under [the clearly erroneous] standard, we accept the

district court's findings of fact unless we are left with the

definite and firm conviction that a mistake has been

committed.") (internal quotation marks omitted) (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).

A.

ISSI points to three specific factual findings by the

district court that it claims were clearly erroneous.

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Specifically, ISSI challenges the findings of fact regarding its

acquiescence in the enlargement of the blasting-grid pattern,

its failure to exercise its right to demand a meeting with NDI

to discuss NDI's failure to drill and blast properly, and NDI's

success in blasting the target area down to the required

elevation. We address each alleged error in turn.

First, ISSI vehemently disputes the district court's

finding that it acquiesced in NDI's expansion of the 6' x 6'

blasting grid specified in the contract.8 It notes that Laurie

Mason, the president of ISSI, and Robert Mason, ISSI's manager

on the BIW Project, each testified at trial that they repeatedly

expressed, through letters and conversations, their

dissatisfaction with the grid change to NDI's president, Forrest

Bradbury. Both testified, moreover, that Bradbury told them not

to worry about the modified plan and assured them that

"everything will be okay." ISSI argues that this evidence

demonstrates that ISSI never gave the go-ahead to NDI to deviate

from the initial blast pattern, or, alternatively, that ISSI's

approval of the expanded blast grid was conditioned on NDI's

reaching a satisfactory result.

8
The Supreme Judicial Court of Maine has held that the issue
of whether a party has relinquished a contractual right is
typically a question of fact. Colbath v. H.B. Stebbins Lumber
Co., 144 A. 1, 4 (Me. 1929).

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 Based on evidence in the record tending to cast doubt

on ISSI's version of the facts, we find that the district

court's determination on this point was not clearly erroneous.

For instance, ISSI's Laurie Mason sent a letter to NDI's

insurance carrier on January 22, 1999 -- after NDI had informed

ISSI of its plan to expand the blasting grid -- in which she

described NDI's blasting work to date as "satisfactory."

Moreover, in a letter to Atkinson dated February 8, 1999, Laurie

Mason spoke approvingly of the expanded blasting pattern that

had already been used in drilling and blasting operations by

NDI. Perhaps most importantly, the Masons' testimony was

contradicted by Bradbury, who stated that Robert Mason, who was

present at the BIW Project site virtually every day, had agreed,

in spite of his trepidation, to go forward with the enlarged

grid "if that's what we had to do." Given the conflicting

evidence adduced at trial on this point, we cannot say that the

district court committed clear error by finding that ISSI

acquiesced in NDI's expansion of the 6' x 6' blasting grid.

Second, and closely related to the first issue, ISSI

claims that the district court was mistaken when it asserted

that there had been no NDI-ISSI meeting to discuss NDI's

drilling and blasting performance, even though ISSI had the

contractual right to summon NDI to such a meeting if NDI was not

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fulfilling its obligations. Such a finding, according to ISSI,

is "clearly erroneous and misleading to the extent it suggests

that ISSI did not promptly exercise its right to request such a

meeting."

Based on our earlier finding that ISSI acquiesced in

NDI's expanded-grid blasting plan, the issue of whether ISSI

called a formal meeting to object to NDI's performance loses

much of its relevance, at least in the context of this appeal.9

Nonetheless, we find that the district court did not clearly err

in finding that there was no meeting between NDI and ISSI that

had been requested by ISSI. During the period of the BIW

Project, at least one meeting, involving Atkinson, ISSI, and

NDI, did occur, but the evidence shows that that meeting was

convened by Atkinson. Furthermore, ISSI introduced evidence

showing that, on March 7 and 10, 1999, it sent letters to NDI

demanding a meeting to discuss the ways in which NDI's drilling

9 At oral argument, counsel for ISSI noted that ISSI is
currently in litigation with Atkinson over the issue of whether
ISSI upheld its obligations under the terms of the February 2000
settlement agreement. In this context ISSI, in characterizing
its response to NDI's drilling and blasting operations,
understandably seeks to avoid putting itself, metaphorically
speaking, between a rock and a hard place: if it fails to argue
in the present case that it did everything it could to ensure
NDI's adequate drilling and blasting, it risks undermining its
argument in the Atkinson litigation that it properly supervised
the drilling and blasting work by NDI for which it shouldered
ultimate responsibility under the Atkinson-ISSI contract.

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and blasting were not conforming to the requirements of the

contract (including the enlargement of the blasting grid).

These letters were sent, however, more than two months after the

drilling and blasting began, and well after NDI had completed

the lion's share of its work. Moreover, and more to the point,

the fact that ISSI requested such a meeting does not negate the

challenged finding that there was no such meeting held pursuant

to ISSI's contractual right to request one. There was, in sum,

no clear error by the district court on this point.

Finally, ISSI takes issue with the district court's

finding that NDI's drilling and blasting were generally

successful in satisfying the contract's elevation requirements.

It alleges weaknesses in the testimony by Atkinson's project

engineer, Timothy Daniels, that NDI had sufficiently drilled and

blasted, noting that Daniels had written a letter to his

supervisor on the eve of NDI's demobilization questioning the

adequacy of the drilling and blasting work. Moreover, ISSI

notes the December 1999 hydrographic survey which found that

certain portions of the area that NDI drilled and blasted were

at a higher elevation than that called for in the NDI-ISSI

agreement. In this regard, it argues that the district court's

statement that "[i]t is impossible . . . to tell whether [the

elevation was inadequate at the time of the survey] because of

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unblasted rock or whether it is a result of sand filling in the

area that has migrated from a sand dump in the river," Northeast

Drilling, Inc., 2000 WL 761020, at *4 n.5, represents an

improper shifting of the burden to ISSI to prove NDI's

nonperformance.

We do not agree with ISSI's argument that the district

court clearly erred by relying on Daniels's testimony in

concluding that NDI met its obligation to lower the target area

to the required elevation. The fact that Daniels may have

expressed uncertainty to his superiors as to the sufficiency of

NDI's drilling and blasting does not necessarily negate his

testimony at trial that, in the final analysis, NDI's

performance in lowering the elevation was adequate. Moreover,

the hydrographic survey cited by ISSI, which notes the

heightened elevation of some spots in the target area, was

conducted nine months after NDI demobilized. Given this time

lapse, it was not clearly erroneous for the district court to

discount this survey, and to find that NDI had met its burden of

proving, primarily through Daniels's testimony, its fulfillment

of the contractual obligation to drill and blast down to the

proper elevations.

In sum, on these three factual issues raised by ISSI,

the district court, acting as fact-finder, made its

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determinations based on its reasonable assessment of the

conflicting evidence before it. Thus its findings of fact

cannot be deemed clearly erroneous, Anderson, 470 U.S. at 574,

and must be affirmed.

B.

ISSI further claims that, beyond the three allegedly

erroneous findings of fact that the district court did make, the

court also erred in declining to make findings of fact on twelve

additional matters relating to the parties' performance under

the contract. 10 In the absence of specific findings by the

10
Specifically, ISSI claims the district court should have
made findings as to the following points: (1) the original blast
schedule that ISSI provided to Atkinson regarding cells 8, 9,
and 10 of the blasting map provided for a test blast on November
24, 1998, and additional blasting and shooting from November 26,
1998, to January 15, 1999; (2) the parties were on standby on
November 24, 1998, because of the sturgeon's failure to vacate
the blasting area; (3) Bradbury did no drilling and blasting
during the period of delay; (4) Bradbury got the go-ahead to
begin blasting on January 7, 1999; (5) NDI and ISSI amended
their contract to delete cells 8, 9, and 10 on December 30,
1998; (6) NDI was ultimately paid by ISSI for some "extras"; (7)
when NDI was paid for these "extras," it occurred after ISSI
submitted payment for such extras to Atkinson; (8) when ISSI was
paid by Atkinson, it paid NDI its "proportionate" share of the
extras; (9) Bradbury initially began blasting according to the
6' x 6' grid; (10) according to Mason's testimony, when the 6'
x 6' grid was used, there was no problem with producing
"diggable" rock; (11) according to testimony of both sides'
expert witnesses, blasting pursuant to a 6' x 6' grid using
3.5" holes would produce football-sized rock; and (12) ISSI's
expert testified that, based on past work on similar jobs, it
should have been possible to produce rock that was one foot in
size with very little oversize on the BIW Project.

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district court on these matters, ISSI asks us to remand the case

for additional factfinding, or to fill the gaps ourselves by

making those additional determinations that it claims the great

weight of evidence adduced at trial would compel.

Standing in the way of this request, however, is ISSI's

own failure to file a postjudgment motion, under Fed. R. Civ. P.

52(b), asking the district court to amend its findings of fact

to include these twelve points. Rule 52(b), in pertinent part,

provides that "[o]n a party's motion filed no later than 10 days

after entry of judgment [in a case tried without a jury], the

court may amend its findings -- or make additional findings --

and may amend the judgment accordingly." Rule 52(b) represents

the principal, and preferred, mechanism for challenging the

district court's failure to find facts, as it allows a court

that has recently tried the case, rather than an appellate

tribunal perusing a cold record, to determine the propriety of

considering those additional facts. See Consol. Aluminum Corp.

v. Foseco Int'l Ltd., 910 F.2d 804, 814 n.9 (Fed. Cir. 1990)

("Rule 52(b), Fed. R. Civ. P., provides for post-judgment

motions for findings not made. Counsel should not simply ignore

that rule and head off to the appellate court to seek a remand

for the making of those same findings."); cf. United States v.

Falu-Gonzalez, 205 F.3d 436, 440 (1st Cir.) ("It is a general

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principle of appellate jurisprudence that a party desiring more

particularized findings at the trial court level must request

them from the trial court.") (quoting United States v. Tosca, 18

F.3d 1352, 1355 (6th Cir. 1994)), cert. denied, 120 S. Ct. 2731

(2000). When a party complains of incomplete findings of fact

after neglecting to file a Rule 52(b) motion, remand is

appropriate only in cases where (1) the district court failed to

make findings as to a certain fact and (2) that fact is

essential to the resolution of a material issue. Glaverbel

Societe Anonyme v. Northlake Mktg. & Supply, Inc., 45 F.3d 1550,

1555 (Fed. Cir. 1995).

After reviewing the record, we conclude that, even if

true, the twelve facts that ISSI seeks to have included as

formal findings would be largely redundant or irrelevant, and

that appellate factfinding or a remand for additional

factfinding by the district court therefore would be

inappropriate. We find the proposed findings concerning the

timing of NDI's performance to be immaterial because the

district court did not determine that the delay created by the

sturgeon excused the imperfections in NDI's performance, as ISSI

contends in its reply brief. On the contrary, the court's

reduction of NDI's damages by $175,000 reflected its view that

NDI had rendered deficient performance under the contract. As

-23-
to those suggested findings that ISSI had paid only a

"proportionate share" of the money it received from Atkinson for

"extras," we find that they would not negate the court's

determination that NDI was entitled to all of the $140,000 for

work completed in the "expanded" area. The fact that ISSI had

paid a "proportionate share" on other occasions did not

eliminate its obligation to prove to the district court what

that term meant. Finally, we find that as to the facts relating

to the consequences of the deviation from the 6' x 6' blasting

pattern, the additional findings proposed by ISSI are irrelevant

because the district court found, in a manner that was not

clearly erroneous, see Part II.A, supra, that ISSI acquiesced in

this modification of the blasting pattern.

Accordingly, we decline ISSI's invitation to make

findings of fact on the twelve points or to remand the case to

the district court for the purpose of requiring it to make such

findings.

III. Continuance and Joinder

ISSI contends that the district court committed legal

error by denying its pretrial motions to continue the trial and

to join Atkinson as a necessary party. Both motions

constituted an attempt by ISSI to prevent the present case from

being decided without reference to ISSI's separate dispute with

-24-
Atkinson arising out of the BIW Project. We consider each issue

separately.

A district court's decision to grant or deny a

continuance is analyzed under the abuse-of-discretion standard.

Amarin Plastics, Inc. v. Md. Cup Corp., 946 F.2d 147, 151 (1st

Cir. 1991). Only an "unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay

will abuse [that discretion]." Id. (quoting United States v.

Torres, 793 F.2d 436, 440 (1st Cir. 1986)). Our review of the

record convinces us that the district court did not abuse its

discretion by declining to grant the continuance. While it

might have been helpful to ISSI to have its disagreement with

Atkinson resolved before going to trial with NDI, in that it

would have fixed the amount it was to receive from Atkinson,

virtually all of the issues posed by the present litigation

could be determined wholly without implicating the ISSI-Atkinson

dispute. We further note that even though ISSI's dispute with

Atkinson had not yet crystallized into formal legal proceedings

at the time of the continuance request, ISSI nonetheless

requested that the trial date in this case be postponed

indefinitely. Cf. United States v. Gantt, 140 F.3d 249, 256

(D.C. Cir. 1998) (noting that district court may consider length

of delay in deciding whether to grant or deny continuance

-25-
motion). Given the potentially lengthy delay that this

continuance could have caused, and the rather marginal benefit

that would have redounded in return, we believe that the

district court was well within its discretion in denying the

motion.

ISSI also attacks the district court's denial of its

motion to join Atkinson as a necessary party under Fed. R. Civ.

P. 19(a). Consistent with its arguments regarding the

continuance motion, ISSI asserts that the commonality of facts

between the NDI-ISSI litigation and the ISSI-Atkinson dispute

counseled in favor of joining Atkinson as a party in the

present lawsuit. ISSI further argues that the district court

applied the wrong legal standard in assessing its Rule 19(a)

motion.

We have recently declined on two separate occasions to

decide whether a Rule 19(a) denial should be reviewed de novo or

for abuse of discretion because we found in both cases that the

distinction would not be outcome-determinative. United States

v. San Juan Bay Marina, 239 F.3d 400, 403 (1st Cir. 2001); Tell

v. Trustees of Dartmouth Coll., 145 F.3d 417, 418-19 (1st Cir.

1998) (noting in dicta that the panel would be "inclined" to

apply abuse-of-discretion standard if it mattered to the

-26-
outcome). As in those cases, we need not resolve the issue here

because doing so would not affect the result.

In this case, ISSI moved to join Atkinson as a

necessary party well after the passage of the deadline to join

additional parties specified in the pretrial scheduling order.

It did not ask the court for leave to modify the scheduling

order in its Rule 19(a) motion, nor did it articulate

subsequently any "good cause" to excuse the belated filing,

although it was required to do both in order to move to join a

necessary party beyond the specified deadline. 11 See Fed. R.

Civ. P. 16(b); cf. Hernandez-Loring v. Universidad

Metropolitana, 233 F.3d 49, 51 (1st Cir. 2000). ISSI's

appellate briefs also fail to explicate its failure to properly

raise the issue. In denying ISSI's motion for reconsideration

of its decision not to join Atkinson, the district court noted

that the failure to meet this deadline constituted an

independent ground for denying the motion. We certainly believe

11
Counsel for ISSI did argue in its motion for
reconsideration that the dispute between Atkinson and ISSI
essentially did not materialize until after the joinder deadline
had passed in the present suit. This observation, however,
overlooks the fact that even if NDI's drilling and blasting were
inadequate, a fact that ISSI could have ascertained at the time
of NDI's demobilization, it did not relieve ISSI's obligation to
Atkinson to dredge to the proper elevation. In other words,
while the sufficiency vel non of ISSI's dredging was at the core
of the Atkinson-ISSI dispute, the adequacy vel non of NDI's
drilling and blasting under the NDI-ISSI agreement was not.

-27-
that the district court had the discretion to remain faithful to

the pretrial scheduling order that it had previously entered.

Nickerson v. G.D. Searle & Co., 900 F.2d 412, 422 (1st Cir.

1990) (holding that district court decision not to deviate from

final pretrial order constituted neither manifest injustice nor

abuse of discretion requiring court of appeals to intervene).

Accordingly, we affirm its denial of ISSI's motion to join

Atkinson as a party.12

IV. "Judgment as a Matter of Law"

ISSI's next contention is that the district court

committed legal error by denying both its motion for judgment as

a matter of law at the close of NDI's evidence and its renewed

motion at the close of all the evidence. It claims that NDI

breached the parties' contract by deviating from the 6' x 6'

blasting pattern and by failing to produce "diggable" rock.

Given these breaches, ISSI insists, NDI was precluded from

prevailing on its contract claims as a matter of law.

In their briefs, both parties have erroneously

characterized ISSI's motions for judgment as a matter of law as

arising under Fed. R. Civ. P. 50. Because the trial was heard

12In so ruling, we expressly decline to consider the
district court's alternate ground for denying ISSI's joinder
motion, namely, that Atkinson was not a "necessary" party within
the meaning of Rule 19(a).

-28-
without a jury, ISSI's motion at the close of NDI's case should

have been characterized as a motion for judgment on partial

findings under Fed. R. Civ. P 52(c). Rego v. ARC Water

Treatment Co.., 181 F.3d 396, 401 (3d Cir. 1999) ("Rule 50(a)

applies in jury trials and Rule 52(c) applies in non-jury

trials."). Moreover, because ISSI put on evidence following the

district court's denial of the motion for judgment on partial

findings, it waived its right to appeal from the denial of that

motion. N.Y. State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d

98, 108 (2d Cir. 1996) (citing Bituminous Constr., Inc. v.

Rucker Enters., Inc., 816 F.2d 965, 967 (4th Cir. 1987)).

Consequently, we treat the arguments ISSI makes on appeal under

the heading of "motion for judgment as a matter of law" simply

as challenges to the factual and legal sufficiency of the

district court's determinations based on all the evidence. See

id. (noting that following denial of Rule 52(c) motion the

sufficiency of the evidence is analyzed on appeal by viewing the

entire record). Following a completed bench trial, of course,

we review the court's factual determinations for clear error and

its legal conclusions de novo. Commercial Union Ins. Co. v.

Seven Provinces Ins. Co., 217 F.3d 33, 40 (1st Cir. 2000), cert.

denied, 121 S. Ct. 1084 (2001).

-29-
 On the portion of ISSI's argument that relates to NDI's

deviation from the initial blasting scheme, we have little

trouble affirming the district court's conclusion. Given the

district court's factual finding that ISSI acquiesced in the

enlargement of the 6' x 6' grid (and our determination that that

finding was not clearly erroneous), it cannot be said that the

deviation prevented NDI from prevailing, as a matter of law, on

its contract claims.13 By acquiescing in the modified blasting

pattern, ISSI effectively relinquished its right under the

contract to have blasting performed according to the 6' x 6'

grid.

The second part of the argument concerns the district

court's allegedly erroneous interpretation of the term

"diggable" in the contract. The district court, relying on

trial testimony as to the meaning of "diggable" in the absence

of an explicit contractual definition, construed the term to

mean a quantity of rock in which no more than ten percent may

13In its argument on this point, ISSI attacks a remark by
the district court that "NDI did breach the contract [by] . . .
fail[ing] to amend the blast plan or [to] follow it precisely --
but none of these breaches was material or caused ISSI any
quantifiable damage." Northeast Drilling, Inc., 2000 WL 761020,
at *4. The nonmaterial "breach[es]" to which the district court
refers in this statement appear to be the failure to adjust the
blast plan document and the failure to conform precisely to the
modified understanding between the parties -- not the earlier
decision to abandon the original 6' x 6' blasting plan.

-30-
exceed one cubic yard. The court further found that 30 percent

of the rock at the BIW Project site had a volume of more than

one cubic yard, and that the value of NDI's performance to ISSI

had been diminished by $175,000 due to this failure to perform

fully. ISSI argues that the contract did not provide for this

ten percent "error rate," and that the district court committed

"clear error of law [in] rewrit[ing] the contract" to allow for

the ten percent deviation. It further argues in its opening

brief (although it does not make the point with great clarity)

that NDI's production of a quantity of rock with an oversize

rate of either twenty or thirty percent (depending on whose

interpretation of the contract is accepted) amounted to a breach

of the contract as a matter of law.

We first find that the district court did not err in

finding that the term "diggable" in the contract allowed for a

ten percent oversize rate. Relying on extrinsic evidence in the

form of expert testimony, the court determined that this ten

percent tolerance threshold represented the industry standard

for such drilling and blasting operations, and that the NDI-ISSI

contract had incorporated this standard. This was an

appropriate method of construing the contract given the

-31-
ambiguity of the term "diggable."14 Hilltop Cmty. Sports Ctr. v.

Hoffman, 755 A.2d 1058, 1063 (Me. 2000); cf. Commercial Union

Ins. Co., 217 F.3d at 38-39 (finding that district court

properly considered expert testimony on trade usage and industry

practice in order to ascertain meaning of ambiguous contract

term).

Beyond the issue of interpreting the term "diggable,"

ISSI makes the argument that NDI's failure to produce a quantity

of rock meeting that definition amounted to a breach of the

contract as a matter of law. The district court, finding the

amount by which NDI's defective production of "diggable" rock

lowered its performance value to be identical to the amount that

ISSI could prove on its breach-of-contract counterclaims (i.e.,

$175,000), deemed the distinction between substantial

performance and partial performance academic in this case.

Accordingly, it declined to characterize NDI's performance as

either substantial or partial. Northeast Drilling, Inc., 2000

WL 761020, at *7. ISSI insists, however, that under Maine law

14
Under Maine law a contract term is deemed ambiguous when
it is "reasonably susceptible of different interpretations."
Guilford Transp. Indus. v. Pub. Utils. Comm'n, 746 A.2d 910, 914
(Me. 2000) (quoting Portland Valve, Inc. v. Rockwood Sys. Corp.,
460 A.2d 1383, 1387 (Me. 1983)). Under this standard we agree
with the district court's conclusion that the term "diggable" is
an ambiguous one, given that there is neither a generally
prevailing definition for the term nor clarification as to its
meaning elsewhere in the contract. Id. at 914-15.

-32-
ISSI was entitled to an explicit determination that NDI had

breached the parties' contract, thereby shifting the burden to

NDI to establish the value of its deficient performance under

the theory of quantum meruit. See Loyal Erectors, Inc. v.

Hamilton & Son, Inc., 312 A.2d 748, 756 (Me. 1973) (explicating

the elements of quantum meruit under Maine law).

We find ISSI's argument on this point to be unavailing.

The district court expressly found that no matter who bore the

burden of proving the "cost" of NDI's less-than-flawless

performance, the result would have been the same: a $175,000

reduction in the amount that NDI would have otherwise received.

Regardless of how useful a finding that NDI had breached its

contractual duties would have been to ISSI in its dispute with

Atkinson (and we doubt it would have been exceedingly so, given

the fact that ISSI at all times bore ultimate responsibility to

Atkinson for the quality of the end product), we do not agree

that ISSI was entitled to have the district court expressly

characterize its damages determination as being based on

substantial or partial performance.15 Given that the criteria

15ISSI relies heavily on our decision in Combustion
Engineering, Inc. v. Miller Hydro Group, 13 F.3d 437 (1st Cir.
1993), as support for its argument that NDI breached the
contract as a matter of law by producing oversize rock at a 20
percent higher rate than that allowed under the definition of
"diggable" rock. Applying Maine law in Combustion Engineering,
we found that the district court did not err in finding that the

-33-
for both theories of damages were found to be fulfilled,16 and

given the district court's finding that application of either of

the two theories would have produced an identical measure of

damages for NDI, we think that the district court could fairly

characterize the quantum of damages as being derived alternately

from either one. Cf. Northern Heel Corp. v. Compo Indus., Inc.,

851 F.2d 456, 473 (1st Cir. 1988) (noting that there is often

more than one sufficient method of measuring damages in any

given case). We therefore uphold its damages methodology.

V. NDI's Work in the "Expanded" Area

ISSI next challenges the district court's findings

regarding NDI's work in the "expanded" area. The court found

that, pursuant to an anticipated agreement between ISSI and

builder of a hydroelectric facility breached the construction
contract with its client by erecting a dam that produced a water
flow exceeding the contract specifications by 15.38 percent.
Id. at 442-43. ISSI points to that finding and asserts that, a
fortiori, NDI's 20 percent deviation in this case must represent
a breach. Nowhere in Combustion Engineering, however, did we
hold that there is a certain performance threshold below which
a court must find breach of contract as a matter of law.
16Specifically, the district court found that NDI had acted
in good faith in its work under the contract, had significantly
performed to that end, and had conferred a material benefit upon
ISSI. By establishing these elements, NDI validly asserted a
claim of quantum meruit under Maine law, thereby entitling it to
the value of the work it did perform. Loyal Erectors, Inc., 312
A.2d at 756. Alternatively, if NDI substantially performed
under the contract, it was entitled to receive the contract
price less damages on account of the omissions. F.A. Gray, Inc.
v. Weiss, 519 A.2d 716, 717 (Me. 1986).

-34-
Atkinson, ISSI was about to receive $140,000 for the drilling

and blasting work done by NDI outside of the contract area -- a

sum that, according to the district court, reasonably

represented the value of the work performed by NDI in the

"expanded" area. Alternatively, the court found that ISSI could

not complain about the fact that it would have to compensate NDI

before receiving payment from Atkinson because ISSI had been six

months late in requesting such payments from Atkinson. The

court also determined that ISSI had failed to meet its burden to

establish the "proportional" share of the Atkinson payments that

NDI was entitled to receive under the parties' agreement, and

accordingly awarded the entire $140,000 sum to NDI. On appeal,

ISSI argues that the district court should not have based its

award on the uncertain occurrence of the ISSI-Atkinson

settlement agreement, nor should it have found that the entire

amount of the Atkinson payments belonged to NDI. In the same

vein, it contends that the district court should not have

credited NDI $81,560 for the "Hughes barge," another expense for

which ISSI was expected to receive compensation from Atkinson in

the same settlement agreement.

At the heart of the first component of ISSI's argument

– that the district court erred by finding that Atkinson was

about to pay ISSI $140,000 for work in the expanded area -- is

-35-
the contractual provision stating that NDI would be paid for

such work "if and only if ISSI receives compensation." ISSI

asserts that under this clause in the contract, Atkinson's

remission of fees was a condition precedent to it making any

flow-through payments to NDI, and that it was therefore improper

for the district court to award anything for work in the

expanded area given the absence of a finding that the condition

had been met. Although Atkinson and ISSI did reach a settlement

covering work in the "expanded" area on or about February 28,

2000, the terms of that settlement have not been divulged.

Under these circumstances, it would be improper for us to assume

that the expected amount of the settlement agreement was the

amount that ISSI actually received. Cf. Mulero-Rodriguez v.

Ponte, Inc., 98 F.3d 670, 672 (1st Cir. 1996) (noting that

appellate court may only make inferences that can be "drawn from

the evidence without resort to speculation") (citing Frieze v.

Boatmen's Bank of Belton, 950 F.2d 538, 541 (8th Cir. 1991)).

The district court's $140,000 award rested, however,

on an alternate ground: that ISSI effectively surrendered its

authority to enforce the condition precedent (Atkinson's

payment) by waiting six months after NDI's demobilization to

submit the change-order requests to Atkinson for NDI's work in

the "expanded" area. Under the so-called prevention doctrine,

-36-
a contractual condition precedent is deemed excused when a

promisor hinders or precludes fulfillment of a condition and

that hindrance or preclusion contributes materially to the

nonoccurrence of the condition. Restatement (Second) of

Contracts § 245 (1981). In this case, the court found that in

spite of having the information needed to submit change-order

requests to Atkinson, ISSI failed to submit such requests until

September 1999, or nearly six months after the completion of

NDI's work.17 Because this delay materially contributed to

Atkinson's failure to pay ISSI before the NDI-ISSI trial, ISSI

is estopped from arguing that it was entitled to be paid by

Atkinson before it reimbursed NDI for drilling and blasting in

the "expanded" area. 13 Richard A. Lord, Williston on Contracts

§ 39:4 (4th ed. 2000) ("[W]here one improperly prevents the

performance or the happening of a condition of his or her own

promissory duty, the offending party thereby eliminates it as a

condition . . . ."); cf. Moore Bros. Co. v. Brown & Root, Inc.,

207 F.3d 717, 724-26 (4th Cir. 2000) (applying prevention

17
ISSI disputes the district court's factual finding that
ISSI was responsible for the delayed change-order request. It
claims that NDI, by refusing to respond to ISSI's requests for
backup information, prevented ISSI from completing the necessary
paperwork. Even if NDI did fail to respond to ISSI's requests
for supplemental information, however, that fact does not
contradict the district court's finding that at the time of
NDI's demobilization, ISSI had all the information it needed to
submit an adequate change-order request.

-37-
doctrine to render inoperative "pay when paid" condition

precedent in construction subcontract). Based on this

principle, the district court reasonably concluded that the

value of the work performed in the "expanded" area was $140,000.

Apart from the issue of whether NDI deserves any

payments given the uncertainty surrounding the payments by

Atkinson, ISSI further contends that the district court

committed error by awarding all of the $140,000 sum to NDI.

Under the contract, NDI was to receive a "proportional" share of

the amount ISSI received from Atkinson; this critical term in

the contract, however, was unaccompanied by further elaboration.

ISSI claims that the court erred by determining that "[b]ecause

ISSI is the only party that knows what NDI's proportional share

is and because ISSI has provided no evidence on this topic,

there is no basis upon which to reduce the $140,000 . . . ."

Northeast Drilling, Inc., 2000 WL 761020, at *2. ISSI points to

the trial testimony of Laurie Mason, who was asked to discuss

the manner in which ISSI would tally NDI's "proportional" share.

In that testimony, Laurie Mason noted that ISSI would make those

payments to NDI according to the same ratio by which it had paid

NDI for NDI's drilling and blasting work in the contract area.

She neglected, however, to disclose what that ratio was. On

-38-
appeal, ISSI attempts to make up for this omission by proposing

a formula by which this court could ascertain the proper amount.

That suggested formula, however, was not presented to the

district court; and absent extraordinary circumstances not

present in this case, we may not entertain newly proffered

evidence for the first time on appeal. In re Colonial Mortgage

Bankers Corp., 186 F.3d 46, 50 (1st Cir. 1999), cert. denied,

528 U.S. 1139 (2000). As the district court noted, because the

proportion of the Atkinson payments that would pass to NDI was

a fact about which ISSI had exclusive knowledge (as NDI

apparently had no control over the size of its "proportional"

share for work in the expanded area), ISSI's failure to divulge

that fact meant that NDI was entitled to all of the payments.

Cf. United States v. N.Y., New Haven & Hartford R.R. Co., 355

U.S. 253, 256 n.5 (1957) ("The ordinary rule, based on

considerations of fairness, does not place the burden upon a

litigant of establishing facts peculiarly within the knowledge

of his adversary."); Selma, Rome & Dalton R.R. v. United States,

139 U.S. 560, 567-68 (1891) (holding that burden of proof

regarding right to payment rests with party possessing relevant

account books).

ISSI also attacks the district court's award of $81,560

to NDI for the cost of the "Hughes barge." The court's award

-39-
was based on ISSI's backcharging of NDI for the cost of this

additional equipment, which NDI needed to procure to make up for

the time it had lost in its drilling and blasting operations.

The district court found that as part of the pending settlement

agreement in which Atkinson would agree to pay ISSI for the work

in the "expanded" area, Atkinson also would pay ISSI $81,650 to

partially defray the cost of the "Hughes barge." Since ISSI

never absorbed any expense for this barge, the court found, that

payment should completely pass through to NDI. In light of our

finding that ISSI is estopped from asserting the condition

precedent of Atkinson's payment for extras, we find no reason to

set aside the reasonable determination by the district court

that NDI is entitled to partial reimbursement for the cost of

this additional expense.18

Finally, ISSI attempts to impugn the district court's

award of interest under the prompt-payment statute, 10 M.R.S.A.

§ 1114(4). Its argument on this point, however, is neither well

developed nor supported by case law, and consequently has been

waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990).

18ISSI also challenges the district court's finding that NDI
had not agreed to absorb the full cost of the barge under the
extant circumstances. After reviewing the conflicting evidence
in the record on this point, we conclude that the court's
determination was not clearly erroneous.

-40-
 Conclusion

This is a classic construction case, with both parties

attempting to advance their respective versions of the facts by

adverting to the plethora of letters that they prepared over the

course of the BIW Project with an eye toward litigation. As is

often the case with disputes of this ilk, the district court

found that the substance of those letters generally did not mesh

with the reality of the interactions between NDI and ISSI, and

that the true nature of the parties' relationship could most

accurately be divined by weighing the credibility of those

testifying at trial. Our careful review of the record reveals

no basis for disturbing those findings of fact reached by the

district court in this fashion. Nor do we find any reversible

error in the court's legal conclusions. The judgment of the

district court is therefore

Affirmed. Costs to appellees.

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