Cochran v. Quest Software, Inc.

United States Court of Appeals
For the First Circuit

No. 02-2326

BRIAN COCHRAN,

Plaintiff, Appellant,

v.

QUEST SOFTWARE, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya and Lynch, Circuit Judges,

and Young,* District Judge.

Gaetano J. DeLuca for appellant.
Laurence J. Donoghue, with whom Morgan, Brown & Joy, LLP was
on brief, for appellee.

April 29, 2003

_______________
*Of the District of Massachusetts, sitting by designation.
 SELYA, Circuit Judge. Plaintiff-appellant Brian Cochran

sued his quondam employer, defendant-appellee Quest Software, Inc.

(Quest), claiming, inter alia, (1) that Quest's wrongful

termination of his employment caused him to lose the benefit of

valuable but unvested stock options; (2) that, prior to his firing,

Quest unlawfully rescinded some stock options; and (3) that Quest

shortchanged him in calculating the amount of options that had

vested before his employment ended. The district court wrote a

thoughtful rescript and granted summary judgment in the defendant's

favor. Cochran v. Quest Software, Inc., 2002 U.S. Dist. LEXIS

16204 (D. Mass. Aug. 19, 2002). Cochran appeals. We affirm.

I. BACKGROUND

In accordance with the settled praxis for appellate

review of summary judgments, see, e.g., Suarez v. Pueblo Int'l,

Inc., 229 F.3d 49, 53 (1st Cir. 2000), we rehearse the facts in the

light most favorable to the summary judgment loser (here, the

plaintiff).

In early 1999, the plaintiff learned that the defendant

was expanding its sales force. He began to explore possible

opportunities and, on February 25, 1999, the defendant offered him

a position as a regional sales manager. The offer letter outlined

the proposed duties, scope of responsibility, emoluments, and the

like. The compensation package included a proposed grant of

options for 60,000 shares of Quest stock "with the standard vesting

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schedule." That phraseology permitted the plan administrator to

impose a vesting schedule not "more restrictive than twenty percent

per year vesting, with initial vesting to occur not later than one

year after the issuance date."

The plaintiff accepted the offer on March 2, 1999, and

began his new job a week later. At that time, the plaintiff signed

an acknowledgment indicating that he had received, and understood,

the employee handbook. Among other things, the acknowledgment form

provided:

I understand and agree that employment with
Quest Software is not for a specified term and
is at the mutual consent of both Quest
Software and me. Either [Quest] or I can
terminate the employment relationship at-will,
with or without reason, at any time.

On November 30, 1999, the defendant's stock split three-

for-two. This resulted in an increase in the plaintiff's options

from 60,000 to 90,000 shares, and a proportionate decrease in the

exercise price. At around the same time, the defendant furnished

the plaintiff with a vesting schedule and the plaintiff signed a

document assenting to it. The schedule indicated that twenty

percent of the options would vest on April 1, 2000 — all along, the

parties have assumed this to be the one-year anniversary date, and

we indulge that assumption — and an additional thirteen percent

would vest every six months thereafter for the next two and one-

half years. The remainder of the options would vest on April 1,

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2003. All vesting was contingent on the plaintiff's continued

employment.

The employment relationship did not go smoothly. In

January of 2000, the plaintiff met with his immediate superior,

Douglas Garn, who expressed disappointment in his performance.

Garn told the plaintiff that the defendant might well recall some

of his stock options. On March 23, 2000, this prediction became a

reality; the plan administrator sent the plaintiff a written notice

that his unvested options had been reduced by 27,500 shares. On

March 27, 2000, the plaintiff signed a form acknowledging this

change. It is important to note that the reduction occurred before

any of the options had vested and left the plaintiff with options

for 62,500 shares.

On March 31, 2000, Quest stock split two-for-one. This

split doubled the number of shares subject to the stock options and

further reduced the exercise price. The next day, the plaintiff

reached the first vesting milestone. Twenty percent of his

options, covering 25,002 shares, vested at that time.1 He

continued to work for the defendant until July 10, 2000, when he

was cashiered. He neither asked for nor received a specific reason

1
The vesting schedule, as supplemented by the parties'
specific agreements, called for the vesting of not less than twenty
percent of the optioned shares on April 1, 2000. See text supra.
Under the circumstances, this amounted to a minimum of 25,000
shares. In point of fact, the plan administrator allotted an extra
two shares to the plaintiff. The parties attach no significance to
this slight variance, so we ignore it.

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for his termination. Subsequently, he exercised the vested portion

of his stock options, buying 25,002 shares at a bargain price of

$1.19 per share and immediately reselling them for $55 per share.

His remaining stock options lapsed upon the cessation of his

employment.

Dissatisfied with his treatment, the plaintiff sued in a

Massachusetts state court seeking to enforce the remainder of his

stock options or, in the alternative, to recover damages. Citing

diversity of citizenship and the existence of a controversy in the

requisite amount, the defendant removed the action to the United

States District Court for the District of Massachusetts. See 28

U.S.C. §§ 1332(a), 1441. After the completion of pretrial

discovery, the parties cross-moved for summary judgment.

The district court granted the defendant's motion and

denied the plaintiff's counterpart motion. The court determined

that the plaintiff was an at-will employee subject to termination

at any time; that the stock options vested periodically (contingent

on future employment); and that the defendant had the right to

cancel the unvested stock options upon the plaintiff's discharge.

Cochran, 2002 U.S. Dist. LEXIS 16204, at *22-*23. The court also

upheld the partial rescission that had occurred in March of 2000,

concluding that the parties had entered into a mutually agreed

modification of the employment agreement and that the plaintiff's

continued employment constituted valid consideration for this

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modification. Id. at *23. Thus, the plaintiff held vested options

for only 25,002 shares upon his ouster. Id. at *6.

The plaintiff moved for reconsideration, asking the

district court to reexamine its determination anent consideration

and to recalculate the number of shares that had vested on April 1,

2000. The court summarily denied the motion. This appeal ensued.

II. STANDARD OF REVIEW

This court reviews grants of summary judgment de novo.

See Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st Cir.

2002); Suarez, 229 F.3d at 53. We decide for ourselves whether

"the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c). A fact is material if its resolution might

affect the outcome of the case under the controlling law. United

States v. One Parcel of Real Property (New Shoreham, R.I.), 960

F.2d 200, 204 (1st Cir. 1992). A genuine issue exists as to such

a fact if there is evidence from which a reasonable trier could

decide the fact either way. Id.

In conducting this canvass of the record, we must take

the evidence in the light most flattering to the party opposing

summary judgment, indulging all reasonable inferences in that

party's favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.

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1990). This does not mean, however, that we must swallow the

predicate for the nonmovant's opposition hook, line, and sinker;

among other things, we safely may ignore "conclusory allegations,

improbable inferences, and unsupported speculation." Medina-Muñoz

v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). This

framework is not altered by the presence of cross-motions for

summary judgment. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.

1996) (explaining that the court must mull each motion separately,

drawing inferences against each movant in turn).

III. DISCUSSION

We now turn to the merits of the plaintiff's

asseverational array. Refined to bare essence, he makes three

arguments. First, he charges that the defendant wrongfully

terminated his employment. Second, he alleges that, prior to his

dismissal, the defendant illegally rescinded some of his stock

options. Finally, he challenges the district court's computation

of the number of options that had vested before he was handed his

walking papers. We address each argument in turn.

As a threshold matter, though, we first must determine

what law to apply. It is elementary that a federal court sitting

in diversity jurisdiction must borrow the substantive law of the

forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

The forum state's choice-of-law tenets are part of its substantive

law, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97

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(1941), and Massachusetts courts generally apply the law of the

state that has the most significant relationship to the litigation.

See Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662, 668-69

(Mass. 1985).

In this instance, we need not undertake an archeological

dig to locate the case's center of gravity. It is settled in this

circuit that when the parties have reached a plausible agreement

about what law governs, a federal court sitting in diversity

jurisdiction is free to forgo independent inquiry and accept that

agreement. See Borden v. Paul Revere Life Ins. Co., 935 F.2d 370,

375 (1st Cir. 1991). Thus, we follow the parties' lead and apply

the substantive law of Massachusetts.

A. Wrongful Termination.

The plaintiff's wrongful termination claim rests

initially on the premise that he was not an at-will employee, but,

rather, an employee for a term of years. In his view, a definite

term of employment can — and should — be implied from the text of

the offer letter. This is wishful thinking.

The plaintiff's argument begins with a statement in the

offer letter granting him options for 60,000 shares of stock "with

the standard vesting schedule." Building on this meager

foundation, he argues that the defendant's standard vesting

schedule contemplated vesting over several years, and that,

therefore, this language shows an intention to employ the plaintiff

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for a definite term of years, that is, throughout the multi-year

vesting period.

This construct is unpersuasive. First and foremost, it

disregards the express language of the offer letter, which included

an explicit statement that, if the offer were accepted and the

plaintiff became an employee, the defendant thereafter "may

terminate [the plaintiff's] employment at any time with or without

cause." It also disregards the fact that the offer letter

described the defendant as an "At Will" employer. The stock option

agreement, executed ancillary to the plaintiff's acceptance of the

offer, made the same point in a more baroque fashion. It provided:

Nothing in the Plan shall confer upon [an
employee] any right to continue in service for
any period of specific duration or interfere
with or otherwise restrict in any way the
rights of [Quest] . . . to terminate such
person's service at any time for any reason,
with or without cause. [Excess capitalization
omitted.]

If more were needed, the employee handbook contained numerous

statements to the effect that all of Quest's employment

relationships were at-will. The plaintiff signed an acknowledgment

indicating both that he received a copy of this handbook when he

started with the defendant and that he understood its admonitions.

This acknowledgment specifically noted the plaintiff's

understanding that "employment with Quest Software is not for a

specified term and is at the mutual consent of both Quest Software

and [the employee]."

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 In Massachusetts, as elsewhere, the terms of an

employment agreement must be deduced, construed, and enforced as

written. In the course of that endeavor, courts may not single out

an isolated word or phrase at the expense of the language as a

whole. Here, the plaintiff's contract contains not the slightest

hint of ambiguity as to the duration of the employment.2 The same

is true of the stock option agreement. The employee handbook seals

the deal. See Jackson v. Action for Boston Cmty. Dev., Inc., 525

N.E.2d 411, 415 (Mass. 1988) (concluding that continuing employment

after receiving an employee manual can suffice to incorporate the

manual's terms into the employment contract). So viewed, the

interpretive task is uncomplicated: the plaintiff was an at-will

employee, and the defendant had an unfettered right to discharge

him. See id. at 412; Cort v. Bristol-Myers Co., 431 N.E.2d 908,

911 (Mass. 1982); Fenton v. Fed. St. Bldg. Trust, 39 N.E.2d 414,

415 (Mass. 1942).

2
The plaintiff relies on Presto v. Sequoia Sys., Inc., 633 F.
Supp. 1117 (D. Mass. 1986), to support his claim that an offer of
stock options vesting over a period of time necessarily creates a
contract for a term of years. This reliance is mislaid. The court
there was addressing a motion for dismissal under Fed. R. Civ. P.
12(b)(6). See id. at 1118. The standards applicable at the
summary judgment stage are far more demanding. Compare, e.g.,
Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002)
(articulating standard under Rule 12(b)(6)), with, e.g., Plumley,
303 F.3d at 368-69 (articulating standard under Rule 56(c)).
Moreover, the documents at issue in Presto lacked the express and
repeated references to at-will employment that permeate the record
in this case.

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 The plaintiff has a fallback position on this issue. He

contends that the termination of his employment was wrongful

because the firing prevented the vesting of his remaining stock

options. This contention requires us to consider a narrow

exception that Massachusetts courts have carved to the rule that an

employer may jettison an at-will employee any time and for any

reason, without incurring liability for damages.

The exception applies to cases in which an ousted

employee can show that the termination of his employment deprived

him of compensation clearly connected to work already performed

(and, thus, unjustly enriched the employer). See, e.g., Harrison

v. NetCentric Corp., 744 N.E.2d 622, 629-30 (Mass. 2001); Fortune

v. Nat'l Cash Register Co., 364 N.E.2d 1251, 1257 (Mass. 1977).

The rationale behind this exception is that every contract contains

a covenant of good faith and fair dealing, and an employer breaches

that covenant when it dismisses an at-will employee in order to

deprive him of compensation fairly earned and legitimately expected

for services already rendered. See Mullowney v. Data Gen. Corp.,

143 F.3d 1081, 1083-84 (7th Cir. 1998) (applying Mass. law); King

v. Driscoll, 673 N.E.2d 859, 862-63 (Mass. 1996). In short, this

exception is designed to preclude an employer from taking an unfair

financial advantage. McCone v. New Engl. Tel. & Tel. Co., 471

N.E.2d 47, 50 (Mass. 1984).

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 Here, the plaintiff's effort to fit his case within this

isthmian exception depends upon his assumption that unvested stock

options should be treated as deferred compensation for services

already performed. This assumption is incorrect. It has been

squarely addressed — and soundly rejected — by the Supreme Judicial

Court of Massachusetts (SJC) in Harrison. There, the plaintiff

alleged that his employer had terminated his employment in order to

prevent the vesting of certain stock options. Harrison, 744 N.E.2d

at 629-30. The SJC pointed out that the stock options vested over

time only if the plaintiff continued in the defendant's employ and

ruled that the "unvested shares are not earned compensation for

past services, but compensation contingent on his continued

employment." Id. at 630. The case at bar is materially

indistinguishable from Harrison: the plaintiff's stock options

vested over time, contingent on the continuation of the employment

relationship. Thus, the unvested portion (which the plaintiff

forfeited upon discharge) did not constitute earned compensation

for past services. See id. Accordingly, the plaintiff's attempted

end run around the at-will employment doctrine takes him into a

dead end.

That concludes this aspect of the matter. The plaintiff

was an at-will employee who served at the defendant's pleasure.

Since no cognizable exception to the general rule pertains, the

district court appropriately rejected the plaintiff's claim for

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damages arising out of termination of the employment relationship.

See generally Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21, 27-28

(Mass. 1981) (holding that the absence of good cause in terminating

an at-will employee, without more, is insufficient to trigger

liability for wrongful discharge).

B. Partial Rescission.

The plaintiff next posits that the defendant unlawfully

canceled a portion of the unvested stock options. The facts are

straightforward. On March 23, 2000, the defendant, disappointed

with the plaintiff's job performance, rescinded unvested stock

options for 27,500 shares of stock. The cancellation of these

options was memorialized both in a written notice sent to the

plaintiff and in a form signed by the plaintiff acknowledging the

action. The acknowledgment form was executed on March 27, 2000,

and the plaintiff continued to work for the defendant until his

eventual ouster on July 10, 2000.

The plaintiff now claims that the defendant had no right

to take unilateral action to alter the terms of his employment

agreement and that, in any event, the modification is invalid due

to lack of consideration. The defendant counters that it had an

absolute right to tinker with the number of options before they

vested. It adds that the plaintiff assented to the partial

rescission and that his continued employment after receiving notice

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of the modification constituted valid consideration for the change

in contractual terms.

As said, the offer letter and related documents

established an at-will relationship. See supra Part III(A). While

an at-will employment agreement does not bind the parties for a

particular length of time, its terms nonetheless define the

parties' rights and obligations during whatever period of time the

employment relationship remains intact. See Sargent v. Tenaska,

Inc., 914 F. Supp. 722, 726 (D. Mass. 1996) (explaining that an

agreement for at-will employment may contain terms that are binding

and effective during the life of the contract); Simons v. Am. Dry

Ginger Ale Co., 140 N.E.2d 649, 653 (Mass. 1957) (similar). It

appears, therefore, that the defendant's promise to grant stock

options to the plaintiff constituted a term of the employment

agreement (subject, of course, to the provisions of the vesting

schedule, the company's stock plan, and the option agreement), and

that the defendant did not have the unqualified right to alter that

term.

Assuming that the defendant lacked a unilateral right to

cancel unvested stock options, the question reduces to whether the

partial rescission of the options was a valid consensual

modification of the employment arrangement. Like the district

court, Cochran, 2002 U.S. Dist. LEXIS 16204, at *23, we answer that

question affirmatively.

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 Under Massachusetts law, the parties to a contract must

agree to a modification. New Engl. Mut. Life Ins. Co. v. Harvey,

82 F. Supp. 702, 706 (D. Mass. 1949). Such an agreement may be

express or implied. Rogers v. Rogers & Brother, 1 N.E. 122, 122-23

(Mass. 1885). In either event, however, the modification must be

supported by consideration. Sargent, 914 F. Supp. at 727; Tri-City

Concrete Co. v. A.L.A. Constr. Co., 179 N.E.2d 319, 320 (Mass.

1962).

In order to establish a valid modification here, the

defendant had to show that the plaintiff not only consented to the

partial rescission of the stock options but also received legally

sufficient consideration in exchange for accepting this reduction

in future benefits. The record demonstrates incontrovertibly that

the plaintiff acquiesced in the partial rescission. It is

uncontradicted that, in January of 2000, he participated in a

meeting with his immediate superior in which he was informed that

the company was unhappy with his performance and was contemplating

taking back some of the stock options. He concedes that he was

aware of the partial rescission that followed and that he signed an

acknowledgment memorializing the action. Consent is, therefore,

established.

That leaves the question of consideration. After the

partial rescission, the defendant forbore from ending the

employment relationship and the plaintiff continued to work for the

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defendant for more than three months. We think that this

constituted mutual consideration. Where, as here, the parties

reach an agreement to modify the terms of an at-will employment

contract, the employer's forbearance from ending the employment

relationship, coupled with the employee's continued performance,

can satisfy the consideration requirement. See Gishen v. Dura

Corp., 285 N.E.2d 117, 121 (Mass. 1972);3 Patton v. Babson

Statistical Org., Inc., 156 N.E. 534, 536 (Mass. 1927).

When all is said and done, this is a classic case of

consideration. When the modification took place, the employee had

no right to continued employment and the employer had no right to

the employee's future services. Thus, each party provided

consideration to the other sufficient to support a continuation of

the employment relationship, on modified terms, for an

indeterminate future period.

For these reasons, we conclude that the plaintiff's

employment agreement was duly modified by the partial rescission of

his unvested stock options. Both parties thus were bound by the

modification.

3
The modification in Gishen involved future commissions rather
than the future vesting of stock. 285 N.E.2d at 118. Because
unvested stock options are not earned compensation for past
services, but, rather, future compensation contingent on continued
employment, Harrison, 744 N.E.2d at 629, this distinction is
insignificant. What matters is that, in each instance, the
compensation remained to be earned and the employee had no
contractual right to continue working in order to earn it.

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 C. Number of Shares.

We now reach the plaintiff's final assignment of error:

his objection to the district court's calculation that, at the time

of his ouster, he had a vested interest in options for only 25,002

shares. See Cochran, 2002 U.S. Dist. LEXIS 16204, at *6, *23.

We begin by summarizing what the record reveals. The

defendant originally granted the plaintiff options for 60,000

shares. On November 30, 1999, a three-for-two stock split

increased that number to 90,000. On March 23, 2000, options for

27,500 shares were rescinded, reducing the plaintiff's total to

62,500 — a fact that was clearly indicated on the statement

furnished to the plaintiff and which he signed on March 27, 2000.

On March 31, 2000, Quest stock split two-for-one, doubling the

plaintiff's holdings so that he held options for 125,000 shares.

The next day, options for 25,002 shares vested.

The district court found that the record was clear as to

these facts. The plaintiff's attack on that conclusion and on the

resultant calculation has taken a variety of inconsistent forms.

None has merit.

At the summary judgment stage, the plaintiff asserted

that options for 45,000 shares had vested before his ouster. He

arrived at this figure on the theory that he had options for

180,000 shares and that twenty-five percent of them had vested on

April 1, 2000. As to this assertion, two observations suffice.

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For one thing, the plaintiff did not then hold options for 180,000

shares; that rodomontade ignores the partial rescission. For

another thing, twenty-five percent initial vesting is neither

referred to in any documentary exhibit nor borne out by any other

probative evidence. The plaintiff's claim is, therefore,

groundless.

After the district court rejected this initiative, the

plaintiff shifted gears. In his motion for reconsideration, Fed.

R. Civ. P. 59(e), he maintained for the first time that the option

statements sent to him by the plan administrator showed that

options for 30,502 shares had vested on April 1, 2000. The

district court summarily rejected this new initiative.

Litigation is not a game of hopscotch. It is generally

accepted that a party may not, on a motion for reconsideration,

advance a new argument that could (and should) have been presented

prior to the district court's original ruling. E.g., DiMarco-Zappa

v. Cabanillas, 238 F.3d 25, 33 (1st Cir. 2001); Aybar v. Crispin-

Reyes, 118 F.3d 10, 16 (1st Cir. 1997). This principle has deep

prudential roots. Litigants normally must frame the issues in a

case before the trial court rules. After that point, a litigant

should not be allowed to switch from theory to theory like a bee in

search of honey. Against this backdrop, the district court

scarcely can be said to have abused its discretion in refusing to

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reconsider its decision based on the plaintiff's newly raised

argument.

In all events, the conclusory assertion that the

plaintiff was shortchanged by some 5,500 shares is belied by the

record. Prior to the partial rescission, the plaintiff had options

for 90,000 shares. After the partial rescission, the plaintiff had

options for 62,500 shares. In accordance with the standard vesting

schedule and the parties' agreements, twenty percent of these

options (i.e., options for 12,500 shares) were due to vest on April

1, 2000. The two-for-one stock split, effective on March 31,

doubled both of these numbers, giving the plaintiff options for

125,000 shares, of which 25,000 were due to vest the following day.

Although that arithmetic seems irrefutable, the plaintiff

nevertheless tries to refute it. His challenge takes two paths.

First, he extracts a figure from the plan administrator's November

30, 1999 statement (which showed that options for 18,000 shares

were due to vest on April 1, 2000) and a figure from the March 23,

2000 statement (which showed that options for 12,500 shares were

due to vest on April 1, 2000). He then adds the excerpted figures

together to arrive at a total of 30,500 shares. This is voodoo

mathematics: adding the 18,000 shares that were set to vest before

either the partial rescission or the later stock split took effect

to the 12,500 shares that were set to vest after the rescission had

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occurred matches two numbers that were never meant to be

aggregated. The result is meaningless.

Alternatively, the plaintiff claims that after the two-

for-one stock split, he had options for 180,000 shares, so that

under the vesting formula options for 30,500 shares should have

become irrevocable on April 1, 2000 (logically, the figure should

be 36,000, but the plaintiff blithely ignores this discrepancy).

This argument misconceives the effect of the partial rescission,

which took effect before the stock split, not afterwards. The

argument is, therefore, meritless.

On appeal, the plaintiff presses what could be regarded

either as a variation on his second theory or as a third theory.

In this court, he attempts to reinvent the chronology of events,

suggesting that the two-for-one stock split occurred prior to the

partial rescission of his stock options (and that, therefore, the

partial rescission of 27,500 shares left him with options for

152,500 shares, of which twenty percent — 30,500 shares — were

vested at the time of his dismissal). No matter how we view it,

this suggestion is deeply flawed.

In the first place, it is a virtually ironclad rule that

a party may not advance for the first time on appeal either a new

argument or an old argument that depends on a new factual

predicate. E.g., United States v. Bongiorno, 110 F.3d 132, 133

(1st Cir. 1997); Teamsters Union Local No. 59 v. Superline Transp.

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Co., 953 F.2d 17, 21 (1st Cir. 1992); Clauson v. Smith, 823 F.2d

660, 666 (1st Cir. 1987). The record here contains no basis for a

departure from this settled practice, and we see no reason to treat

with a neoteric theory that was not seasonably advanced below.

Even if we were disposed to reach it, the plaintiff's new

argument as to the timing of the stock split has no footing in the

record. The supposed "fact" on which it hinges — the sequence of

events — was never asserted before the district court. To the

contrary, the defendant filed a statement of undisputed material

facts in support of its motion for summary judgment in which it

stated that the two-for-one stock split occurred on March 31, 2000

(a few days after the plaintiff had acknowledged the effectiveness

of the partial rescission). Under the applicable local rule, it

was incumbent on the plaintiff to include in his opposition to the

defendant's motion "a concise statement of the material facts of

record as to which it is contended that there exists a genuine

issue to be tried." D. Mass. R. 56.1. Here, however, the

plaintiff chose not to contest the date of the stock split, and the

local rule provides that "material facts of record set forth in the

statement required to be served by the moving party will be deemed

for purposes of the motion to be admitted by opposing parties

unless controverted by the statement required to be served by

opposing parties." Id. Accordingly, the stock split date is

deemed admitted. See Carreiro v. Rhodes Gill & Co., 68 F.3d 1443,

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1446 n.3 (1st Cir. 1995); FDIC v. Anchor Props., Inc., 13 F.3d 27,

31 (1st Cir. 1994). This admission places the sequence of events

exactly as the district court determined it to be (and, thus,

defenestrates the plaintiff's belatedly proffered theory).

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the district court's entry of summary judgment in favor

of the defendant.

Affirmed. Costs to appellee.

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