Kozikowski v. Toll Bros., Inc.

United States Court of Appeals
For the First Circuit

No. 03-1460

STANLEY J. KOZIKOWSKI and EUNICE K. KOZIKOWSKI,

Plaintiffs, Appellants,

v.

TOLL BROS., INC., a/k/a TOLL BROTHERS, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. William G. Young, Chief U.S. District Judge)

Before

Lynch, Circuit Judge,
Lipez, Circuit Judge,
and Stahl, Senior Circuit Judge.

Robert K. Harrington was on brief for appellants.
Lisa M. Asiaf, with whom Paul V. Kelly and Kelly, Libby &
Hoopes, P.C., were on brief for appellee.

December 31, 2003
 STAHL, Senior Circuit Judge. Plaintiffs-appellants

Stanley and Eunice Kozikowski appeal from the district court's

order granting defendant-appellee Toll Brothers, Inc.'s ("Toll

Bros.") motion to dismiss, converted by the court into a motion

for summary judgment. The Kozikowskis challenge (1) the district

court's finding that the statute of limitations began to run on

their claims in 1993; (2) the court's finding that the Kozikowskis

failed to establish equitable estoppel; and (3) the court's

decision not to permit mandatory discovery to the Kozikowskis prior

to considering Toll Bros.'s motion to dismiss, which the court had

converted to a motion for summary judgment. We affirm the district

court, but on different grounds as to the Kozikowskis' deceit

claims.

I. BACKGROUND

On June 21, 1989, the Kozikowskis entered into a Purchase

and Sale Agreement with Franklin Chase Limited Partnership.1 The

contract called for the purchase of a luxury home to be constructed

in Franklin, Massachusetts for $285,900.00. The sale agreement

provided the buyer with a so-called "insured" limited ten-year

warranty against structural defects. On July 18, 1989, Toll Bros.

1
Franklin Chase was a Massachusetts limited partnership and
subsidiary of Toll Bros. that was cancelled on November 28, 1997,
after its initial general partner, Dover General, Inc., merged out
of existence into Franklin Farms G.P., Inc. Toll Holdings, Inc. is
sole stockholder of Franklin Farms G.P., Inc. and Toll Bros. is
sole stockholder of Toll Holdings, Inc.

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applied for a building permit from the Town of Franklin. Following

issuance of the permit, Toll Bros. commenced construction of the

home. On December 14, 1989, after five months of construction,

the Town issued a Certificate of Occupancy confirming that the home

was fit for occupancy. Five days later, the closing took place and

Franklin Chase transferred title to the Kozikowskis. The

Kozikowskis and Franklin Chase also signed a separate agreement in

response to the Kozikowskis' complaints about certain construction

deficiencies and deviations from the agreed-upon model of the home.

In this separate agreement, Franklin Chase, as the "Seller," agreed

to construct and install, at no further cost, various extra items

in the home. In exchange, the Kozikowskis agreed that "any and all

construction deficiencies, including but not limited to those

deficiencies which have been brought to the Seller's attention, are

forgiven and that any corrective action to be taken will be the

Buyer's responsibility," and released "the Seller from any and all

obligations to cause further corrective action to be taken

therein." The release explicitly stated, however, that Franklin

Chase's obligations under the ten-year limited warranty would

remain in effect. The final purchase price was $335,685.00.

Over the next several years, the Kozikowskis' complaints

about the home continued. On September 17, 1992, the Kozikowskis

and Franklin Chase entered into yet another agreement under which

Franklin Chase paid the Kozikowskis $4,479.74 with the

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understanding that the Kozikowskis would use the money to repair

chimney and fireplace problems. In turn, the Kozikowskis released

both Franklin Chase and Toll Bros. from all claims relating to the

home's fireplace and chimneys.

In November 1992, the Kozikowskis filed a complaint with

the Town of Franklin alleging a number of problems in the home's

construction. In February 1993, Allan Fraser, then the Town's

Building Commissioner, inspected the property and found thirteen

building code violations, including problems with the home's

foundation, air circulation system, and certain parts of the home's

above-ground construction. Fraser ordered Toll Bros. to submit a

written proposal for specific corrective action to address the

problems as well as a specific time schedule for accomplishing the

work. Fraser communicated with both the Kozikowskis and Toll Bros.

with regard to this set of building code violations. Through its

engineering consultant, Toll Bros. submitted proposals to correct

the violations. Fraser approved the proposals but wrote to the

Kozikowskis that it was beyond his authority to determine whether

Toll Bros. would actually follow through with the remedial work and

that "it is really between you folks and Toll Bros. to work out

mutually acceptable times and access for completion of these

items."

Though Toll Bros. did resolve some of the Kozikowskis'

complaints unrelated to the building code violations, it failed to

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take care of the specific code violations that Fraser had

identified. In 1994, the Kozikowskis threatened to file a formal

complaint and contact the media in response to Toll Bros.'s failure

to resolve their problems. Nothing immediately came of those

threats. Later that year, Toll Bros. donated two thousand feet of

paving to the Town, calling it an attempt "to help the Town with

its increasing responsibilities due to residential development."

In a report to the Town Council, however, the Town Administrator

stated that Toll Bros. made the donation to resolve "some problems

with the Building Inspection Department."2 There was no public

indication that the "donation" had anything to do with the

Kozikowkis' complaints.

The situation with the Kozikowskis' home remained largely

unresolved despite repeated demands by the Kozikowskis. In August

1997, they offered to release Toll Bros. from all claims in

exchange for an "all-season room" off the back of the house. On

August 21, 1997, in an apparent response to a written complaint

that the Kozikowskis had filed, Robert Toll, Chairman and CEO of

Toll Bros., wrote to the Kozikowskis that he had passed their

letter on to senior management and "assured [them] that [they

would] be treated fairly." On September 26, 1997, however, William

2
The district court itself considered this "donation," or what
the Kozikowskis alleged to be a bribe, "grave and troubling."
Kozikowski v. Toll Bros., Inc., 246 F. Supp.2d 93, 101 (D. Mass.
2003).

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Gilligan, Toll Bros.'s vice-president, responded to the

Kozikowskis' release offer and stated that Toll Bros. would

neither build the all-season room nor "undertak[e] any additional

corrective measures" because of the December 19, 1989 release

agreement.

In January 1998, after members of the Kozikowski family

experienced various illnesses, the Bay State Gas Company inspected

the home, found high carbon dioxide levels, and advised the family

not to use the fireplaces or any other wood-burning unit. The

Kozikowskis contacted Gilligan, who despite his previous letter,

suggested that the Kozikowskis schedule an appointment to inspect

the problem and that if the problem was Toll Bros.'s

responsibility, "we will correct it."

In July 1998, a second inspection of the home by the Town

Building Commissioner, now Matthias Mulvey, revealed eighteen

building code violations, many of them identical to the violations

found in 1993. The Commissioner sent a letter to Toll Bros.

advising them of the violations. Subsequently, the Norfolk County

District Attorney brought a criminal complaint against Toll Bros.,

which was ultimately dismissed. On April 23, 2001, the Kozikowskis

demanded relief from Toll Bros. under Massachusetts consumer

protection laws. Settlement talks failed and the Kozikowskis

commenced suit against Toll Bros. in superior court for (1) common

law deceit, (2) deceit as a violation of Mass. Gen. L. ch. 93A, (3)

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breach of express warranty, and (4) breach of express warranty in

violation of Mass. Gen. L. ch. 93A.

Following removal of the case to federal court, Toll

Bros. moved to dismiss the complaint as time-barred. On September

12, 2002, the district court held a hearing on Toll Bros.'s motion

to dismiss and converted the motion to dismiss to a motion for

summary judgment. Both parties agreed that such a conversion was

appropriate, but the Kozikowskis requested the opportunity to

conduct additional discovery to develop an equitable estoppel

argument. The district court gave the Kozikowskis the next sixty

days to conduct three depositions concerning their equitable

estoppel claim and further instructed that, on the basis of these

three depositions, they could supplement the record but solely on

the issue of equitable estoppel. After receiving several

extensions, the Kozikowskis provided the district court with a

supplemental brief as well as various exhibits and one deposition,

that of Matthias Mulvey. The court thereafter granted summary

judgment in favor of Toll Bros. after ruling that all of the

Kozikowskis' claims began accruing no later than 1993 and were

therefore barred by applicable statutes of limitations. See 246 F.

Supp.2d at 99. The court also rejected the Kozikowskis' equitable

estoppel argument. See id. at 102.

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II. DISCUSSION

We review the district court's grant of summary judgment

de novo, viewing the evidence in the light most favorable to the

nonmovant. Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997).

A. Statute of Repose

Although the district court's decision did not address

the applicability of the statute of repose, Toll Bros. raised the

issue both in its motion to dismiss and here on appeal. Toll Bros.

argues for affirmance pursuant to the six-year statute of repose

for claims involving construction and improvement to real property.

Mass. Gen. L. ch. 260, § 2B; see also Nett v. Bellucci, 269 F.3d 1,

5 (1st Cir. 2001) (federal courts sitting in diversity jurisdiction

apply Massachusetts statute of repose, which is deemed substantive

rather than procedural). We agree that § 2B applies to the

Kozikowskis' two deceit claims and hence affirm their dismissal on

that basis. § 2B provides in pertinent part:

Actions of tort for damages arising out of any deficiency
or neglect in the design, planning, construction or
general administration of an improvement to real property
. . . in no event shall . . . be commenced more than six
years after the earlier of the dates of: (1) the opening
of the improvement to use; or (2) substantial completion
of the improvement and the taking of possession for
occupancy by the owner.

Mass. Gen. L. ch. 260, § 2B. The six-year deadline set forth in

§ 2B operates without regard to when a plaintiff discovers any

injury allegedly caused by tortious activity by the architect or

contractor at issue. See Klein v. Catalano, 386 Mass. 701, 702

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(1982). It serves the "well recognized public purpose" of

protecting those engaged in the construction industry from

defending claims brought against them long after evidence has

dissipated and strikes "a reasonable balance between the public's

right to a remedy and the need to place an outer limit on the tort

liability of those involved in construction." Id. at 709-10.

The Kozikowskis' common law and statutory deceit claims

sound in tort and arise out of the design and construction of the

home. In both claims, the Kozikowskis allege that Toll Bros.

misrepresented that their home was constructed in compliance with

state and municipal building codes and was safe and fit for

occupancy. The 93A deceit claim specifically alleges that Toll

Bros. knowingly concealed and failed to inform the Kozikowskis of

the building code defects.

The Kozikowskis argue that their deceit claim under ch.

93A is not barred by the statute of repose, because, as in Sullivan

v. Iantosca, 409 Mass. 796, 800 (1991), the alleged "violation

occurred in the sale of the house." The Massachusetts Supreme

Judicial Court in Sullivan reasoned that § 2B "grants protection to

designers, planners, builders, and the like . . . [but not to]

people who sell real estate." Id. at 799. The Kozikowskis allege

that Toll Bros. acted as both builder and seller of the property,

and claim that, as the seller of the property, Toll Bros. violated

ch. 93A by concealing known defects in the home. Accordingly, the

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Kozikowskis contend, their chapter 93A deceit claim should not be

barred by the statute of repose.

In this transaction, Toll Bros. was the builder of the

home. Franklin Chase is denoted as the "Seller" in the sale

agreement, the December 19, 1989 release, and the resulting deed of

the property. Toll Bros. itself is nowhere mentioned in any of

these crucial instruments. It is, however, specifically listed as

the applicant in the building permit and certificate of occupancy

as one would expect. Importantly, the Kozikowskis made no effort

below to pierce the corporate veil between Franklin Chase and Toll

Bros., or otherwise prove that Toll Bros. was the seller of the

home.

Accordingly, we assess whether the statute of repose

began to run for the deceit claims against Toll Bros. solely in its

capacity as the builder of the house and not as seller. Toll Bros.

argues that "the opening of the improvement to use" took place on

December 14, 1989, when the Town issued the Certificate of

Occupancy after inspecting the home. Five days later, "substantial

completion of the improvement and the taking of possession for

occupancy by the owner" occurred at the sale closing and title

transfer, immediately after which the Kozikowkis moved into the

home. The Massachusetts Supreme Judicial Court has ruled that the

statute of repose begins to run when a Certificate of Occupancy is

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issued and the owners move into the home. See Aldrich v. ADD,

Inc., 437 Mass. 213, 221-22 (2002).

We agree. According to § 2B, Toll Bros. was therefore

subject to tort liability in connection with its construction of

the home only until, at the latest, December 19, 1995. The deceit

claims, filed in November 2001, since they arise solely out of Toll

Bros.'s actions as builder, and not seller, are hence time-barred

by the statute of repose.

B. Statutes of Limitation

The district court held that all of the Kozikowskis'

claims, both for breach of warranty and deceit, were time-barred.

Because we dispose of the Kozikowskis' two deceit claims as barred

by the statute of repose, see supra, we examine the Massachusetts

statutes of limitation applicable only to the breach of express

warranty claims.3 See, e.g., Pitts v. Aerolite SPE Corp., 673 F.

Supp. 1123, 1127 (D. Mass 1987) (federal courts sitting in

diversity jurisdiction apply state statutes of limitation).

Under chapter 93A, "unfair or deceptive acts or practices

in the conduct of any trade or commerce are hereby declared

3
As for the ten-year warranty referenced in the sale
agreement, the warranty agreement itself is not in the record. We
do not know, for example, whether the warranty contained a "claims
made" clause, "discovery" provision, or some other independent
obligation between the parties that would have affected our
application of the statutes of limitation. We assume arguendo that
the Kozikowskis do have express warranty claims not subject to the
statute of repose, and address the limitations period for express
warranty claims.

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unlawful." Mass. Gen. L. ch. 93A, § 2(a). The Kozikowskis argue

that Toll Bros.'s alleged breach of warranty constitutes an unfair

or deceptive act covered by chapter 93A. The statute of

limitations for 93A claims is four years from the accrual date.

Mass. Gen. L. ch. 260, §5A. The statute of limitations for common

law breach of warranty claims is six years. Mass. Gen. L. ch. 260,

§ 2. Breach of warranty actions start accruing when the plaintiff

knew or reasonably should have known of the breach. See Anthony's

Pier Four, Inc. v. Crandell Dry Dock Eng'rs, Inc., 396 Mass. 818,

826 (1986). In both breach claims, the Kozikowskis allege that

Toll Bros. breached its express warranty that the home would comply

with the state building code. The district court held that both

claims, at the latest, started accruing in 1993, when the

Kozikowskis were notified by the Town of their home's thirteen

building code violations, and were hence time-barred.

The Kozikowskis contend that the applicable statutes of

limitation did not begin to run until July 3, 1998, when Mulvey

inspected the home. They claim that until then, they did not know

or have reason to know that the home had such major structural

defects as to mean it could not be occupied. The building code

violations cited in the 1993 inspection by Fraser, they contend,

were just "minor" and did not point to major defects in the home's

construction.

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 As an initial matter, the Kozikowskis argue this issue

for the first time here on appeal; hence, we deem it waived. See

Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 183 (1st

Cir. 1997) (noting appellant waived argument for the first time on

appeal by failing to present it below); Villafane-Neriz v. Fed.

Deposit Ins. Corp., 75 F.3d 727, 734 (1st Cir. 1996) (except in

"'horrendous cases where a gross miscarriage of justice would

occur,'" "this court will not consider an argument presented for

the first time on appeal") (internal citations omitted). Toll

Bros., in its August 20, 2002 Reply Memorandum in Support of

Defendant's Motion to Dismiss, warned, "Defendant Toll . . .

submits this reply memorandum to address plaintiffs' misplaced

reliance on . . . the doctrine of equitable estoppel. Indeed,

plaintiffs devote nearly the entirety of their . . . Opposition

. . . to this doctrine, and, in so doing, tacitly concede that

absent its application, all of their claims are barred by the

applicable statutes of limitations." The Kozikowskis' Supplemental

Brief in Opposition to Defendant's Motion to Dismiss continued to

fail to challenge Toll Bros.'s position that the claims began

accruing in 1993 or earlier. In turn, the district court stated,

"The Kozikowskis have not disputed that the statutes of limitations

began to run on their claims in 1993. Rather, they have responded

to Toll Bros.'s invocation of the statutes of limitations on their

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four claims by invoking the doctrine of equitable estoppel." 246

F. Supp.2d at 99.

Even if the Kozikowskis had not waived their challenge of

the accrual date and were we to assume the issue was forfeit and

subject to plain error review, there was no plain error. The

record shows that the Kozikowskis were put on notice of

construction and structural defects in their home as far back as

the year of their purchase. In 1989, as evidenced by the December

19 release, the Kozikowskis complained about alleged construction

deficiencies even before moving into the house. In their 1992

letter to the Town Administrator, they complained about "outright

mistreatments" by Toll Bros. and outlined a long list of alleged

"building deficiencies" which included numerous "unresolved,"

"partially resolved," and "inadequately resolved" construction

problems. In the same letter, the Kozikowskis went so far as to

suggest that criminal charges for fraud and misrepresentation

should be brought against Toll Bros. In Fraser's 1993 letter to

Toll Bros. notifying the company of the building code violations,

it was made clear that the Kozikowskis were aware of the violations

explicitly referenced in the letter; moreover, Fraser sent a copy

of this letter to the Kozikowskis themselves. Their claim that

Fraser's 1993 report contained just "minor" problems with the home

is disingenuous and incorrect. Mulvey's 1998 report on which they

base their argument sets forth many of the same violations--defects

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in fireplace and insulation systems among them--that Fraser listed

after his 1993 inspection. The record is replete with explicit and

implicit acknowledgments by the Kozikowskis that they knew or

learned about alleged construction deficiencies and building code

violations between 1989 and 1993. Significantly, many of the

serious defects reported in 1998 were in the 1993 report.

C. Equitable Estoppel

Though the Kozikowskis failed to dispute below that the

statutes of limitations began to run on their breach of warranty

claims in 1993 and not in 1998, they did invoke the doctrine of

equitable estoppel. Under equitable estoppel, a plaintiff can

"escape the consequences of his lack of diligence in bringing his

action . . . by way of proof that the defendants lulled the

plaintiff into the delay." Coady v. Marvin Lumber and Cedar

Company, 167 F. Supp.2d 166, 171 (D. Mass. 2001).

For the doctrine to apply, the Kozikowskis must satisfy

a three-part test, showing: (1) that Toll Bros. made

representations that it knew or should have known would induce the

Kozikowskis to postpone bringing a suit; (2) that they did in fact

delay bringing a suit in reliance on those representations; and (3)

that reliance on those representations was reasonable. O'Blenes v.

Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986).

The Kozikowskis argue that (1) a March 24, 1993 letter

from Fraser to Toll Bros.; (2) a July 27, 1993 letter from Fraser

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to the Kozikowskis; (3) the fact that Toll Bros. continued to

schedule repair work on the home through 1996 and 1997; and (4) the

August 21, 1997 letter from Toll Bros. stating that the Kozikowskis

would be treated fairly all constituted "representations" that Toll

Bros. knew or should have known would induce the Kozikowskis into

postponing suit.

The district court held that "even construing the facts

in the light most favorable to the Kozikowskis, it is far from

clear that the representations that they have identified on the

part of Toll Brothers satisfy the first prong" of an equitable

estoppel argument. 246 F. Supp.2d at 100. The March 24, 1993, and

July 27, 1993 letters by Fraser did indicate that Toll Bros. was

making plans to resolve the home's problems. Neither Fraser nor

Toll Bros., however, made any clear assurances that Toll Bros.

intended to carry out these plans. In fact, Fraser told the

Kozikowskis that it was up to the Kozikowskis themselves to make

sure that Toll Bros. followed through on their plans.

Moreover, the three letters as well as any alleged

suggestions by Toll Bros. that it would schedule repairs were very

general in nature and did not specifically assure the Kozikowskis

that the repairs in fact would be made. Promises or assurances in

such communications must be specific in order to constitute

"representations." See Treadwell v. John Hancock Mut. Life Ins.

Co., 666 F. Supp. 278, 286-87 (D. Mass. 1987); Buker v. Nat'l Mgmt.

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Corp., 16 Mass. App. Ct. 36, 43-44 (1983) (unreasonable as a matter

of law to rely on vague assurances). Here, the only specific

assurances that Toll Bros. made were that they were considering the

building code violations listed in Fraser's report and that Toll

Bros. representatives would be available to the Kozikowskis to

discuss their problems. In addition, alleged repair appointments

by Toll Bros. do not, standing alone, constitute "representations"

for purposes of equitable estoppel. See New England Power Co. v.

Riley Stoker Corp., 20 Mass. App. Ct. 25, 34 (1985) (stating "[w]e

do not view the fact of honest, genuine repair efforts, standing

alone, as sufficient basis for application of the doctrine of

estoppel"), rev. denied, 395 Mass. 1103 (1985).

On the second prong, the district court found that "given

the long and rocky course of the relationship" between the two

parties, the notion that the Kozikowskis "truly believed" Toll

Bros. and "were thus lulled into inaction . . . strains credulity."

246 F. Supp.2d at 101. The record shows that the Kozikowskis

regarded Toll Bros. as unreliable, beginning with their first

letter in 1992 to the Town Administrator. The letter notified the

Town that the Kozikowskis "would like to file a complaint with the

town against Toll Brothers in the hope that, ideally, they are no

longer allowed to build in Franklin" and that they "think that

charges of criminal misconduct--fraud and misrepresentation--should

be brought against this builder."

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 After Fraser inspected the home and issued his report,

the Kozikowskis' distrust of Toll Bros. continued in 1994 when they

threatened to file a formal complaint and contact the media. In

the Kozikowskis' own words, they were "completely frustrated and

upset because neither [Town] Commissioner Fraser nor Toll Brothers

was responding to their fully justified complaints . . . ." Given

this string of complaints and threats by the Kozikowskis, it is

difficult to believe that Toll Bros.s' assurances, to the extent

that they were assurances, truly lulled the Kozikowskis into

inaction.

On the third prong, the district court concluded that

construing the facts in the light most favorable to the

Kozikowskis, any delay in reliance on the alleged representations

could not have been reasonable given Toll Bros.'s behavior and the

Kozikowskis' own threats. See 246 F. Supp.2d at 102. Though it is

arguable that the Kozikowskis succeed on the first two prongs, the

Kozikowskis fail to establish how their alleged reliance on Toll

Bros.'s representations was reasonable.

The Kozikowskis' reliance on the August 21, 1997 letter

from Robert Toll was unreasonable because it was received one month

before the September 26, 1997 letter from Gilligan, which stated

that "Toll Brothers will not be building an all-season room as you

have requested, nor will we be undertaking any additional

corrective measures on your home." Gilligan's letter did not

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provide any assurances that Toll Bros. would remedy their

grievances, but instead explicitly set out that Toll Bros.'s

previous attempts to repair minor problems with the home were

performed despite the warranty agreement and release that insulated

the company from any legal obligation to do so.

In light of the Kozikowskis' continuous attempts to use

outside sources to pressure Toll Bros. into action and Toll Bros.'s

continuous failure to satisfy the Kozikowskis' demands, the

Kozikowskis' alleged reliance on Fraser's letters and Toll Bros.'s

correspondence is unreasonable. As the district court noted:

The fact that [the defendant] "did not make an honest or
good faith effort at anytime to remedy the defects," as
[the plaintiff] alleges, does not establish that [the
defendant] induced the delay. Instead, because [the
defendant] was unwilling to take responsibility for the
defects, [the plaintiff] was (or should have been) put on
notice that a claim (or a lawsuit) was the only way to
resolve the dispute.

246 F. Supp.2d at 102 (quoting Coady, 167 F. Supp.2d at 171).

Here, as far back as 1994, when Toll Bros. failed to fully respond

to the Kozikowskis' serious threat to sue, the Kozikowskis had more

than enough signals that the only way they were going to have their

grievances redressed was through legal action.4 We therefore

4
As for the Kozikowskis' mention of the alleged bribes made to
Town officials, we cannot see how statements made by Toll Bros. to
Town officials constitute representations that Toll Bros. knew or
should have known would induce the Kozikowskis into forgoing suit.
Though "[t]he circumstances surrounding the so-called 'bribe' might
be suggestive of foul play, . . . foul play is not in itself
sufficient to warrant raising an estoppel." Sousa v. BP Oil, Inc.,
No. 83-4046-DPW, 1995 WL 842003, at *5 (D. Mass. Sept. 12, 1995).

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affirm the district court's finding that the Kozikowskis failed to

carry their burden of satisfying the three elements of equitable

estoppel.

D. "Mandatory Discovery" Under Fed. R. Civ. P. 26(a)

We review the district court's denial of discovery for an

abuse of discretion. Ameristar Jet Charter, Inc. v. Signal

Composites, Inc., 244 F.3d 189, 191-92 (1st Cir. 2001). The

Kozikowskis contend that the district court abused its discretion

by denying their request for "mandatory" discovery under Fed. R.

Civ. P. 26(a). Here, Rule 26(a) never came into play because at

the outset, the district court conducted a hearing on Toll Bros.'s

motion to dismiss which, without objection from either party, it

converted to a motion for summary judgment. Upon this conversion,

Fed. R. Civ. Pro. 56(f) instead was invoked. Rule 56(f) provides

that where affidavits of the party opposing summary judgment are

insufficient to present facts that are essential to the party's

opposition, the court may refuse the summary judgment motion or may

order a continuance to permit either party to obtain additional

affidavits, conduct depositions, or conduct any other discovery.

See Fed. R. Civ. Pro. 56(f).

The Kozikowskis requested discovery at the September 12,

2002 hearing on Toll Bros.'s motion to dismiss. The district court

Moreover, nowhere in the record can we find that the Kozikowskis
even knew about the alleged bribe at the relevant time period, much
less relied on it.

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granted them sixty days to conduct three depositions, but they

managed to conduct only one, of former Town Building Commissioner

Mulvey. The Kozikowskis chose to rest on the Mulvey deposition and

submitted a supplemental brief incorporating his testimony in

opposition to Toll Bros.'s motion to dismiss-motion for summary

judgment.

According to Rule 56(f), a court may grant a continuance

to permit additional discovery if the party opposing summary

judgment asks the court for such relief, demonstrates that it was

diligent in pursuing discovery before summary judgment surfaced,

and sets forth a "plausible basis for believing that the specified

facts, . . . if adduced, will influence the outcome of the pending

summary judgment motion." C.B. Trucking, Inc. v. Waste Mgmt., Inc.

137 F.3d 41, 44 (1st Cir. 1998); Fed. R. Civ. P. 56(f). Again,

their argument for mandatory discovery under Rule 26(a) is

misplaced, as the Kozikowskis consented to the district court's

conversion of Toll Bros.'s motion to dismiss to a motion for

summary judgment, thereby bringing any further discovery requests

within the ambit of Rule 56. Here, the Kozikowskis have not

explained why they could not conduct the three depositions during

the time for which they asked, nor have they demonstrated whether

certain facts, if brought up on additional discovery, would

influence the outcome of the motion. Hence, we find that the

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district court did not abuse its discretion in denying the

Kozikowskis further discovery under either Rules 26(a) or 56(f).

Unfortunately, for the Kozikowskis they simply waited too

long before seeking legal redress for their complaints.

Accordingly, we affirm.

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