USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1854

CREDIT FRANCAIS INTERNATIONAL, S.A.,

Plaintiff, Appellee,

v.

BIO-VITA, LTD., HEMO-INNOVATIONS, LTD.,

Defendants, Appellants.

____________________

No. 95-1091

BIO VITA, LTD., ET AL.,

Plaintiffs, Appellees,

v.

CARL W. RAUSCH, ET AL.,

Defendants, Appellants,

________

IDEAL ENVIRONMENTAL SYSTEMS, INC.,

Counterclaimant, Appellant.

____________________

No. 95-1092

BIO VITA, LTD., ET AL.,

Plaintiffs, Appellees,

v.

CARL W. RAUSCH, ET AL.,

Defendants, Appellees,

________

PETER FISHER & BALFOUR HOLDINGS, INC.,

Counterclaimants, Appellants.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. James L. Watson,* Senior Judge]

____________

____________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

____________________

David M. Mermell
__________________

on

Opposition

to

Motion

to

Vacate

Or

Dismissing Appeal for appellants, Bio-Vita, Ltd. and Hemo-Innovatio

Ltd.
S. Elaine McChesney, with
____________________

whom Robert A. Buhlman

__________________

and Bingh
_____

Dana & Gould were on brief for appellees Biopure Corporation, Biop
_____________
Associates Limited Partnership and Carl W. Rausch.
James B. Hicks,
_______________
L.L.P., Evan Slavitt
______ ____________
appellants,

Peter

with

whom Kathy A. Jorrie, Andrews & Ku

_________________ ______________

and Hinckley, Allen & Snyder were on

_________________________
Fisher,

Balfour

Holdings,

Inc.

brief
and

Id

Environmental Systems, Inc.

Marc S. Palay, with whom Eric W. Bloom, Winston & Strawn, Jer
_____________
_____________ _________________ ___
M. Leonard, John D. Donovan, Jr. and Ropes & Gray were on brief
__________ _____________________
_____________
appellee, Credit Francais International, S.A.

____________________

February 29, 1996

____________________

____________________

*Of

the United States

Court of International

Trade, sitting

designation.

CYR, Circuit Judge.

CYR, Circuit Judge
______________

proceeding,

judgment

against

the

district

orders for

In this

court entered

intervenor

Trainor and awarded CFI

CFI.1

consolidated, multiparty

two

separate

The first

summary

judgment was

a constructive trust over Trai-

nor's

"choses in action"

against Biopure.

awarded CFI similar relief

was

also

though at

favorable to

against Fisher.

Biopure.

different times,

The second judgment

The second

Each judgment

as final and

judgment

was certified,

immediately appealable

under Fed. R. Civ. P. 54(b).

The

two

Trainor appealed

judgments spawned

from the

dismissed the appeal.

judgment, along

judgment,

with a

as did Ideal.

appeals by

first judgment, but

three parties.

then voluntarily

Fisher noticed an appeal from

purported "cross-appeal" from

Fisher and Ideal

the second

the first

also moved to vacate

the voluntary dismissal of the Trainor appeal.

Based on

a thorough

record review, we

conclude that:

____________________

1The various parties are referred to as follows:

"Fisher"
Balfour

collectively
Holdings,

Inc.

designates

Peter

("Balfour"), an

Fisher
entity

and
con-

trolled by Fisher.

"Ideal" designates Ideal Environmental Systems, Inc.

"Trainor" collectively designates William

daughter Diane Trainor,
nies,

Bio-Vita,

Trainor, his

and Trainor-controlled

Ltd. ("Bio-Vita"),

compa-

Hemo-Innovations,

Ltd. and Laurel Mountain Trust ("LMT").

"Biopure"

collectively designates

Biopure Corporation

and Biopure Associates Limited Partnership ("BALP"), as

well as Carl W. Rausch.

"CFI" designates Credit Francais International, S.A.

(1)

the Ideal appeal

lacks standing

to appeal;

dismissed; (3) the

first judgment

appellate

was filed late

(2) the

and, in all

events, Ideal

Trainor appeal

was properly

Fisher "cross-appeal"

should

be

stricken; and

jurisdiction over

Fisher's

brief challenging

(4)

the

challenge to

the

court

lacks

the

second

judgment.

At the outset, we note that our consideration of these

appeals has been severely

Ideal to conform their

applicable rules.

dictional

hampered by the failure of

Fisher and

briefs and appendices as required

Their briefs do not

information, a meaningful

by the

include necessary juris-

description of the district

court

Fed.

proceedings, nor

R.

App. P.

comprehensible

record references.

28(a)(2)(ii), (a)(4),

(e).

The

See
___

first three

volumes of their appendices, approximating 2500 pages, are poorly

indexed,

not

paginated.

despite

of

in

chronological

order,

and

See Fed. R. App. P.

___

30(d).

Prior to oral argument,

consecutively

a careful search of the appendices and the eight volumes

record originally

locate

not

crucial

designated on

pleadings

and

appeal, we

exhibits,

were unable

including

to

documents

referenced in appellants' own briefs.

At oral argument, these

lants' attention and

lants

we invited an

later sought and were

supplemental

appendix

matters were brought to appel-

appropriate motion.

granted leave to

consisting of

Appel-

file a two-volume

an additional

1400 pages.

The

supplement contains many

documents.

It

but not

also contains,

all

of the missing

however, unindexed

documents of

uncertain relevance, some of

which may not have been

district

appellants did

court.

Moreover,

not

repaginate and rearrange the first three volumes of

before the

seek leave

to

their appen-

dices, obliquely explaining instead that these volumes "have been

used by the Court and

parties for over three months."

failed to revise their

in their briefs.

It is

with

record references to the documents

cited

See Fed. R. App. P. 30(c).

___

appellants' responsibility to provide

intelligible briefs

their

And they

and appendices

sufficient to

the court

support

points on appeal, United States v. One Motor Yacht Named

______________
______________________

Mercury,
_______

527 F.2d 1112, 1113 (1st Cir. 1975), failing which "the

court in

its discretion . .

case insofar as the

. may scrutinize the

merits of the

record permits, or may dismiss the appeal if

the absence of a [record] thwarts intelligent review."

Murphy, 47
______

instant

F.3d 8,

10 (1st

case, wherever

Cir.

material

1995).

Moore v.
_____

Accordingly, in

uncertainties

result from

the

an

incomplete

or indecipherable

or affect

our

decision, we resolve such

uncertainties against appellants.

See
___

Real v.
____

58, 60

the

Hogan, 828
_____

appellant

F.2d

who must bear the

appeal.").

record

and impede

(1st Cir.

brunt of an

1987)

("It is

insufficient record on

With this caveat, we recount the background facts as

best we can.

I
I

BACKGROUND
BACKGROUND
__________

Although

parties'

significant

differences

versions of the relevant

distinguish

the

facts, we recite the skeletal

scenario upon which the parties predicate their claims.

Trainor, the

defrauded all the

venture

central figure in the

other parties.

with Trainor to invest

globin-based products.

Fisher entered

joint

Each partner was to contribute 50% of the

a contract

arrange for human testing of a

Guatemala.

into a

in, and develop, Biopure's hemo-

capital needed to finance their undertaking.

sible for negotiating

dispute, allegedly

Trainor was respon-

with Biopure.

Biopure product

Fisher was

to

Hemopure

in

Earlier, acting through Ideal as

the nominal borrower,

Trainor had obtained more than $14 million

from CFI in a fraudu-

lent loan transaction.

the CFI loan

by

in

in "tainted"

contract.

million

dispute. Trainor

CFI loan

to the Biopure

at the

time it was

used approximately

proceeds to finance

These monies have been

bank account

involved in

transaction, his knowledge of the fraud perpetrated

Trainor remains

million

Although Fisher likewise was

deal.

$3

the Biopure

traced directly from Trainor's

The

"ownership" of

invested in Biopure

this $3

is a contested

matter as between Fisher and Ideal.

Allegedly

forced

at

about the

Fisher out of the Biopure

Trainor's

own company, as the

same

time, Trainor

secretly

deal by substituting Bio-Vita,

named party to

the contract with

Biopure.

The contract entitled Trainor to an equity interest in

Biopure and

subsequently

licensing rights to

the Biopure products.

rescinded the contract

and licensing rights to Upjohn.

and awarded

Biopure

similar equity

According to Fisher, by then the

rights licensed to Upjohn were worth at least $179 million.

The District Court Proceedings

The District Court Proceedings
______________________________

Fisher

million

or a 50%

nor").
___

Trainor

against

Trainor,

and

share in the Biopure

then

sued Biopure.

later

Biopure,

for

$250

rights ("Fisher v. Trai______

_____

Biopure

counterclaimed

Trainor for fraud, adding Fisher as a third party defen-

dant

in the

third

party

seeking

sued

Trainor lawsuit

answer

included

("Trainor v. Biopure").
_______
_______

counterclaim

against

Fisher's

Trainor

to impose a constructive trust upon any Trainor recover-

ies from Biopure.

The first count in the Fisher v. Trainor complaint

______
_______

was

tried to a jury in November, 1992, resulting in a special verdict

that Trainor

had breached a

whereby the two were

mistrial

binding oral

contract with

Fisher

to have shared equally in the Biopure deal.

was declared

later,

however,

because Trainor

and

Fisher were unable to agree on the meaning of the special verdict

and how to proceed with respect to the separate action in Trainor

_______

v. Biopure.
_______

mandamus.

218

We denied

Fisher's ensuing petition for

a writ of

In re Peter Fisher & Balfour Holdings, Inc., 7 F.3d

_____________________________________________

(Table), No. 93-1914 (1st Cir. Oct. 12, 1993), cert. denied,
____ ______

114 S. Ct. 1299 (1994).

CFI then

intervened in the Trainor

_______

claiming a constructive

against

Biopure.

CFI

v. Biopure action,
_______

trust over the Trainor and Fisher rights

also demanded judgment

on certain direct

claims against Biopure.

The

CFI

and

district court first

against Trainor,

imposing

entered summary judgment for

constructive trust

upon

Trainor's

claims against

Trainor's fraud against

Biopure based on

findings that:

CFI was undisputed,2 (2)

(1)

CFI had traced

approximately $3 million of its loan funds through Trainor to the

Biopure investment,

and (3)

all monies

advanced by Trainor

in

furtherance of the Biopure deal were traceable to CFI.

Fisher did not oppose CFI's motion for summary judgment

against Trainor, but ambiguously purported to

demand

a share of

Trainor's rights in

reserve a right to

the Biopure transaction.

The district court accordingly ruled,

[T]he

court notes

claim to rights

joint

of another

arising from the transaction

with Biopure . . .
a

the existence

Fisher claims to have had

venture agreement

with

Trainor to

share in the outcome of the transaction

with

Biopure . . . [T]his opinion does not address

his claims and their effect, if any, on CFI's
constructive trust.

June

28, 1994 Order at 6.

summary judgment against

The district court certified the CFI

Trainor as final under

Rule 54(b), and

judgment entered on July 1, 1994.

Trainor

filed

premature notice

of

appeal shortly

after Fisher moved to amend the judgment pursuant to Fed. R. Civ.

P.

59(e),

interpose

notwithstanding

objection

Contemporaneously,

to the

Fisher's

CFI

Fisher filed

earlier

motion

decision

for summary

a "first

not

to

judgment.

amended counterclaim"

which purported to add Ideal as a party to the pending litigation

____________________

2This
earlier
same Ohio
and

finding

in

substantial

part on

Ohio consent judgment for fraud against Trainor.

_______
action, a default

remains

defunct.

was predicated

judgment was entered

outstanding, according

to

CFI,

an

In the

against Ideal

because Ideal

is

for

the first time.

the Rule

In

Ideal also

59(e) motion

response to

to amend

motion to

Fisher and Ideal formally

alia,
____

"adding Ideal

as a

purported to join as a party in

the earlier

strike

Trainor judgment.3

the amended

moved for leave to amend

party plaintiff."

counterclaim,

it by, inter
_____

Finally,

Biopure moved for summary judgment against Fisher.

CFI and

On

memorandum

striking

November

opinion

22, 1994,

denying

as untimely

the

the first

the

district

Rule 59(e)

court issued

motion

amended counterclaim

to

amend,

which had

attempted to insinuate Ideal as a party to the case, and granting

the Biopure and CFI motions

Based

for summary judgment against Fisher.

on its conclusion that the only claims Fisher had asserted

against

Biopure

were

those

against Biopure, the district

Fisher and

court ruled:

Trainor

jointly

"there is

held

no ground

whatsoever in law or equity that gives Fisher a right to share in

the benefits of

his co-venturer's

fraud to the

detriment of

memorandum order

provides

prior innocent party."

The

following

district

court's

explanation for

its decision to

enter a

the

second Rule

54(b)

certification,

covering

the

summary

judgments

against

Fisher:
____________________

3The

docket sheets list two Rule 59(e) motions filed on the

same day, one

by Ideal and one by Fisher, but we can locate only

one such motion in the appendix and record.

been

to Alter or

the district court

record before us, however,

joint

purports to have

"submitted" by both Fisher and Ideal, although it is titled

"Ideal's Motion
that

It

Amend Judgment."

never ruled on

Fisher complains

his motion.

we conclude that there was

motion, which was denied

by the court.

text.

10

Given the

a single,

See accompanying
___

In the

opinion of the court

these motions for

the granting of

summary judgment is likely

to lead to the simplification of the case and

the elimination of a

future trial.

For this

reason the court

finds it advisable to

make

these judgments

final under Rule 54(b).

The

court finds

just reason

no

to delay

final

judgment on these matters.

Nov. 22, 1994 Order at 13.

On December 6, 1994, a "separate document," incorporat-

ing the second Rule

54(b) judgment, was entered on

the district

court docket:

In accordance with
Opinion

and

this Court's

Order entered

on

Memorandum,
November 22,

1994, IT IS HEREBY ORDERED:

Judgment is
Credit
as

entered in favor of

Francais International,

against Balfour Holdings,

Biopure and
S.A. ("CFI")

Inc. and Peter

Fisher.

By supplementary order under Rule 60(a), the district court noted

the pendency

its

of additional,

intention

immediate

to certify

CFI

the

second Rule

appeal "in the interests of

glean from the record,

(with

unspecified claims,

54(b)

justice."

at that time all claims

___ ______

substituted as

plaintiff

but reiterated

on some)

judgment for

As best we can

remained pending
________ _______

and
___

all parties
___ _______

remained in the case on other claims.

The Appeals
The Appeals
___________

Following

amend,

Trainor

the

reinstated

judgment (No. 94-1854).

3, 1995, Fisher

denial of

his

the

Rule

appeal from

59(e) motions

the

July

See Fed. R. App. P. 4(a)(4).

___

and Ideal each

filed a notice

to

1, 1994

On January

of appeal.

The

Fisher notice,

a single

document titled "Notice

of Appeal

and

11

Cross-Appeal," purported to notice an appeal from the December

judgment and a

"cross-appeal" from

the July 1

judgment.4

The

Ideal notice, identically titled, likewise purported to notice an

appeal from the December 6 judgment and a "cross-appeal" from the

July 1

judgment,

as well

as

another "cross-appeal"

from

the

December 6

judgment, identified

only as

taken

in response

to

Fisher's notice of appeal.

95-1092;

moved

The Fisher notice was docketed as No.

the Ideal notice as

95-1091.

Trainor

and CFI jointly

for voluntary dismissal of the Trainor appeal on March 20,

1995, and the motion was granted the same day.

Fisher and Ideal

moved to vacate the voluntary dismissal.5

I.
I.

Standing to Appeal (No. 95-1091)

Standing to Appeal (No. 95-1091)
________________________________

Notwithstanding

Ideal

has attempted

district

to

court orders:

amend the first judgment

the wording

join in

the

the

of its notice

of appeal,

Fisher challenge

to

two

denial of the

Rule 59(e) motion to

(referred to as a

"cross-appeal"), and

the denial of the motion to amend the Fisher counterclaim.

Ideal

was not a party of record

before the district court.

Its stand-

____________________

4The

term "cross-appeal" is a misnomer in this context.

normally denotes an

appeal by

initial appellant from an

the initial

an initial

appellee against

order or decision entered in

It

the

favor of

appellant. See
___

9 James Wm.

Moore, Moore's Federal

________________

Practice
________

204.11[1] (1995).

Fisher and

Ideal were not named as

appellees

in the

appeals,"

as a logical

first
lant

Trainor

appeal, and

matter, were

their so-called
separate appeals
________

"cross-

from the

judgment in favor of appellee CFI, not the original appelTrainor.

Ideal's additional

"cross-appeal"

against

Fisher is simply an enigma.

5We reserved decision on

Fisher and Ideal then

this motion pending oral argument.

filed an opaque motion to

dismissed and pending appeals, which we denied.

12

consolidate the

ing

to

appeal thus

turns

challenges are excepted

to the

on whether

from the general rule

district court proceedings

judgment.

its

See United States

___ _____________

F.2d 158, 161 (1st Cir. 1986).

may appeal

attempted appellate

that only parties

a district

court

v. Little Joe Trawlers, Inc., 780

__________________________

By itself, the Ideal challenge to

the denial of the Rule 59(e) motion, briefed separately under the

rubric "cross-appeal," appears to come within no exception to the

general rule.

Nonetheless, the denial of

Ideal's motion to amend the

Fisher counterclaim

plaintiff,"

by, inter
_____

may have been an

borrower of the funds

CFI,

alia,
____

"adding Ideal

appealable order.

loaned by CFI,

as a

party

As the nominal

Ideal claims that it,

not

was entitled to assert a constructive trust over the equity

claims acquired

proceeds

by

Trainor when

to Biopure.6

superficially

akin

Ideal

to those

he wrongly

thus asserts an

cognizable under

diverted the

loan

interest at least

Fed. R.

Civ. P.

24(a)(2).7

An order

denying a

motion to

intervene of

right is

____________________

6There

are no

district court

confident determinations
material times.

Moreover,

as to

findings which

who controlled Ideal

would enable

at various

the record suggests that Ideal

was a

shell, wholly owned and controlled by Trainor, at the time of the

CFI loan.

During the CFI

loan transaction ("in or about 1989"),

however, Fisher allegedly gained control of Ideal.

7See supra
___ _____

note 6.

chaser of the CFI loan

might

have

Ideal claims

to "trace"

Ideal

purports to be a

proceeds, so as to cut off

its loan

that, through

funds

bona fide pur-

any right CFI

into the

Biopure deal.

Fisher, it innocently

acquiesced in

the CFI loan arranged by Trainor,

then innocently redirected the

loan

proceeds to Trainor (allegedly for the purchase of a worth-

less

landfill).

Trainor used

the money to

finance the Biopure

deal.

13

immediately appealable, without the

___________

Rule 54(b).

Flynn
_____

v. Hubbard,
_______

need for certification under

782 F.2d

1084, 1086 (1st

Cir.

1986); 6 James Wm. Moore et al., Moore's Federal Practice

________________________

n.4 (1995).

The appeal cannot

taken

within thirty days

all.

See
___

Cir.),

of the entry

B.H. by Pierce
_______________

we lack

reserve; it must

of the order,

v. Murphy, 984
______

cert. denied, 113 S. Ct. 2930

____________

timely notice of

vene,

be kept in

F.2d 196,

(1993).

appeal from the denial of its

jurisdiction

over its

54.38

appeal.

be

or not at

199 (7th

As Ideal filed no

motion to inter-

The

thirty-day

appeal period extended from the date of entry (November 28, 1994)

of the November 22, 1994, order denying intervention, see Fed. R.

___

App.

P. 4(a)(1),8 and

until January 3, 1995.9

____________________

Ideal did not

_____

file its notice

of appeal

Appeals from the First JudgAppeals from the First Judg______________________________

8The entry

of the

December

6, 1994,

reasons.

The

did not

enlarge the

against Fisher

appeal period,

on

for two

the denial of intervention

was appeal-

without an "express direction for the entry of judgment" on

a separate document.
(1st Cir. 1991).

Cf. Willhauck v. Halpin, 953

___ _________
______

F.2d 689, 701

Since Ideal sought intervention in

pending litigation, and

is

54(b) judgment

judgment did not include Ideal's claims and, as an

exception to Rule 54(b),

able

Rule

not relief from a

the still-

final judgment, there

no reason to consider further the applicability of the "sepa-

rate document" rule

in relation

to the denial

of this

motion.

Compare infra note 12.

_______ _____

9Ideal did not move

denial

of its

though it

motion to

for an extension of time

intervene/amend the

joined Fisher in a

to appeal the

counterclaim, al-

motion to extend the

time to file

the so-called "cross-appeal" from the first judgment.

request

was denied for failure

to show good

The latter

cause or excusable

neglect.
We

simply add

that the

discretion in denying the

See
___
Cir.

did not

abuse its

motion to amend/intervene as untimely.

Conservation Law Found. v.

_______________________
1992).

district court

The case had been

Mosbacher, 966 F.2d

_________

39, 41 (1st

pending since 1990, the CFI loan

transaction had been addressed in pleadings dating back to April,

1991,

and CFI

had

moved to

intervene

ten months

before

the

attempted

counterclaim.

The court

rightly explained

that "so

14

ment:
the Fisher "Cross-Apment:
the Fisher "Cross-Ap______________________________

peal" and the Voluntary Dispeal" and the Voluntary Dis______________________________

missal of the Trainor Appeal
missal of the Trainor Appeal
____________________________

Fisher

Trainor

appeal

contends

that the

voluntary dismissal

should be

vacated,

as a

collusive

of the

attempt to

foreclose his so-called "cross-appeal" from the same judgment.10-

CFI and Trainor respond

dismissal of the

judgment

that Fisher has no standing

Trainor appeal,

in his own right,

contest CFI's

nor to appeal

to oppose

from the

first

because he elected

initially not to

Trainor below.11

Fisher's stand-

motion against

____________________

much blood

has passed

under the

bridge" that

it would

work a

"perversion" of the liberal amendment policy of Rule 15 to permit

Ideal to introduce a new claim so late in the proceedings.
"timeliness"

criteria weighed

appellees would
been allowed.

have been

against

Ideal as

unfairly prejudiced

well.

Other

First,

had intervention

Second, Ideal can point to no clear probability of

success on the merits, since its independence from Trainor during

the relevant time period, as well as Ideal's capacity to sue, are

open to serious
stances"

question.

are suggested.

And,
See
___

third, no "exceptional

circum-

Banco Popular de Puerto Rico v.

______________________________

Greenblatt, 964 F.2d 1227, 1231-34 (1st Cir. 1992) (setting forth
__________
factors to
tion).

be considered in determining

Thus, the district

timeliness of interven-

court properly denied

amend and Ideal lacked standing to appeal.

the motion to

10As already noted, see supra pp. 12-13, note 9, Ideal lacks
___ _____
standing to appeal either judgment.
have

Fisher argues that he should

been given prior notice and an opportunity to challenge the

dismissal.

Although we agree that the better practice is to give

notice to all "cross-appellants"

al, unless the
includes

prior to any voluntary dismiss-

cross-appellant has joined

the payment

these circumstances

of costs,

see Fed.
___

neither Fisher

in an agreement
R. App. P.

nor Ideal was

the failure to provide separate notice to Fisher.

that

42(b), in

prejudiced by

See supra note

___ _____

4 and infra pp. 14-18.

_____

11We note, moreover, that Fisher's ambiguous response to the

CFI motion in the

district court implicates a separate issue.

party may have standing to appeal, yet lose because he has waived
or

forfeited the arguments

Dopp v. HTP Corp., 947 F.2d

____
__________
that

a defendant

who was

sought to be raised
506, 512 (1st

on appeal.

Cir. 1991)

dismissed from the

_________

case for

Cf.
___

(holding

lack of

personal jurisdiction had no standing to appeal judgments entered

15

ing to appeal turns

on his status

the time the challenged

which

he is "aggrieved"

before the district court

judgment was entered, and the

by the judgment.

at

extent to

See I.C.C. v. Holmes

___ ______
______

Transp. Inc., 983 F.2d 1122, 1125 n.4 (1st Cir. 1993); Little Joe
____________
__________

Trawlers, Inc., 780

______________

F.2d at

203.06.

Fisher

judgment

was entered.

the

was a

161; 9 Moore's Federal Practice

_________________________

party of

record at

the time

the first

Arguably, at least, he was "aggrieved" by

judgment since it entitled CFI alone to a constructive trust

_____

over the

had

Thus,

Trainor claims against

sought

for himself

in

his

we conclude that Fisher

judgment

Biopure

relief

which Fisher

counterclaim against

has standing to

and, for present purposes, we

Trainor.

appeal the first

assume arguendo that the

________

appeal is not time-barred.12

A motion for voluntary dismissal of an appeal should be

denied only "in the

interest of justice or fairness."

American
________

____________________

after it voluntarily absented itself from the proceedings).

12The parties have

the
that

assumed that the appeal

November 22 decision

denying his

the January 3 notice of appeal

to whether
and, if not

the timeliness

Rule 59(e)
was late.

of a cross-appeal

jurisdictional, as to

period ran from

motion, hence

They disagree as

is jurisdictional,

the effect of

the denial

of

appellants' motion to enlarge the time to file a cross-appeal.

However, the

"separate document" rule does

apply to orders

____
denying Rule
court opinion

59(e) motions.

The lengthy

_____

November 22

contained numerous orders, such

that, arguably at

least, the Fisher appeal period ran from the December

judgment

against him

in

a separate

document.

district

See
___

6 entry of
Fiore
_____

v.

Washington County Community Mental Health Ctr., 960 F.2d 229, 235
______________________________________________

n.9 (1st Cir. 1992) (en banc); see also RR Village Ass'n, Inc. v.
________ ______________________

Denver Sewer Corp., 826 F.2d 1197, 1201 (2d Cir. 1987) (words "so
__________________

ordered" at end of a 14-page opinion denying Rule 59(e) motion do

not satisfy "separate document"
that Fisher failed

requirement).

Since we conclude

to prosecute his "cross-appeal," we

dwell on these other matters.

16

need not

Auto. Mfrs. Ass'n v. Commissioner, Massachusetts DEP, 31 F.3d 18,

_________________
_______________________________

22 (1st Cir. 1994).

We discern no legitimate basis for disallow-

ing the motion to withdraw the Trainor appeal.

Withdrawal of the Trainor appeal does not terminate the

Fisher

appeal

from the

Fisher's ability

same judgment,

nor

in any

way impede

to protect his own interests before this court.

It became clear at oral argument that Fisher's misapprehension in

this regard was driven by an

counsel that

the

the "cross-appeal" bore

Trainor appeal.

appellate

docket

erroneous assumption on the part of

But

the

rules, see Fed. R.

___

each notice

of

the same docket

docket sheets,

App. P. 12(a)

appeal when

as

number as

well as

the

(requiring clerk to

received);

see also
___ ____

First

Circuit Internal Operating Procedures VI.A.2 (1992) ("in the case

of cross-appeals, the appeals are treated as two separate appeals

for briefing

purposes"), indicate otherwise.13

It appears that

this misconception also contributed to Fisher's decision to offer

for filing, together with

Ideal, a late so-called "cross-appeal"

brief challenging the first

filing the

missed

docket number

appeal.

Had

judgment, and to affix to

assigned to Trainor's

Fisher

consulted

this late

previously dis-

the docket

sheets

and

____________________

13The parties did not

notify the Clerk that they

proceed under Fed. R. App. P. 28(h).

Operating Procedure VI.A.2. The

wished to

See First Circuit Internal

___

docket sheets identify Fisher as

the "appellant and cross-claimant" in

appeal no. 95-1092 --

number

appeal and

assigned

to his

(Ideal is identified the

"notice

of

same way in appeal

the

cross-appeal."

no. 95-1091).

The

Trainor docket sheet cross-references Fisher's and Ideal's appeal

numbers,

respectively labeling

the Fisher

appeal as

appeal" and the Ideal appeal as a "companion case."

a "cross-

The rules do

not

allow a party

simply to assume

as his own

a docket number

previously assigned to an appeal taken by another party.

17

complied with the briefing schedule issued by the Clerk, he could

have offered

a complete initial

bearing

pending

the

docket

brief some three

number assigned

to

weeks earlier

his

singular

"notice of appeal and cross-appeal."

We must

decide, therefore, whether

Fisher may proceed

with his appellate challenge

of his

to the first judgment on

untimely and misnumbered "cross-appeal"

such mistakes

are

not jurisdictional

Moore's Federal Practice

_________________________

discretionary

requesting

203.12 (1995),

relief from

his

leave to file a

filed in number 95-1092).

claiming that wrongdoing

under

errors and

the basis

brief.

Although

Rule 3(a),

see
___

Fisher did

not seek

omissions (e.g.,
____

late supplement to

Instead, he filed two

by

the brief timely

opaque motions

by other parties relating to the volun-

tary dismissal of the Trainor appeal had hampered his prosecution

of

the cross-appeal.

motions and

Appellees spent

court time was

further consequence,

briefing schedule,

devoted to

there was

and appellees

time responding

to those

considering them.

no occasion to

have had

As a

issue a

revised

no occasion

to file

briefs in response.

At this stage, therefore, it would be unfair

to

delay

foster

further

and expense

by

countenancing

these

practices at the expense of innocent appellees.

Accordingly,

we decline

to

these

and omissions, and

appeal

brief be stricken from the record.

Cf. United States v.

___ _____________

Hanks,
_____

24

1994)

(declining to

delay in

perfecting an

relieve

appellant of

1238-39

that his

Fisher of

errors

F.3d 1235,

we direct

relieve

(10th Cir.

nonjurisdictional

18

so-called cross-

appeal

where appellant

additional

corrected

prejudice and

the

irregularity but

unnecessary consumption

sources by failing to give notice of the

failed

caused

of court

correction).

re-

As Fisher

to take proper steps to pursue his challenge to the first

judgment,

we

turn our

attention to

the

final question:

the

appealability of the second Rule 54(b) judgment entered below.

The Fisher Appeal from the Second Judgment: Rule 54(b)

The Fisher Appeal from the Second Judgment: Rule 54(b)
_______________________________________________________
Certification
Certification
_____________

Rule

fewer

54(b) permits

than all claims

entry of

or parties upon

a final

judgment

as to

an express determination

that

there is "no just

reason for delay"

in entering judgment.

Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 579 (1st Cir.

_______________
__________________

1994).

Although no party has challenged these Rule 54(b) certif-

ications, we are

since "it

"duty bound to take the matter

implicates the

scope of our

Spiegel v. Trustees of Tufts College,

_______
_________________________

1988).

appellate jurisdiction."

843 F.2d 38, 43 (1st

Cir.

The required jurisdictional analysis comprises two steps.

First,

we

inquire

whether

underlying the judgment disposed

ties

up sua sponte,"
___ ______

of at least one party

trial

court

of all the rights and

as to at least one

tiss-Wright Corp. v. General Elec. Co.,

_________________
_________________

Charles A. Wright

the

claim.

action

liabili-

See Cur___ ____

446 U.S. 1, 7 (1980); 10

et al., Federal Practice

and Procedure: Civil

______________________________________

2d
__

2656

cases);

n.9,

n.17 (2d Ed. 1983

6 Moore's Federal Practice

_________________________

cases); cf.
___

dispose

2657

54.34[2-2]

Maldonado-Denis, 23 F.3d
_______________

"completely either of all

& Supp. 1995)

at 580 (the

n. 4

(citing

(citing

ruling should

claims against a given defen-

19

dant

or

of some

discrete substantive

claim

or set

of claims

against the

met here

defendants generally").

with respect to

Fisher and in favor

tive

rights

The first

requirement was

the summary judgments

entered against

of Biopure and CFI.

against Biopure

remain

Although CFI's deriva-

unresolved,

as to

Fisher

nothing remained but to enter judgment.

Second, we must examine the sufficiency of the district

court's assessments of (1) any interrelationship or overlap among

the various

and

legal and factual

the pending

issues involved in

claims, and (2)

any equities

the dismissed

and efficiencies

implicated by the requested piecemeal review.

In its
patcher"

critical role

as a Rule

54(b) "dis-

. . . the district court is to con-

sider the strong judicial

______ ________

policy disfavoring
______ ___________

piecemeal appellate review . . . by carefully

_________ _________ ______
comparing the dismissed and the unadjudicated
claims for indications of substantial overlap

-- to ensure that

the appellate court is not

confronted in successive appeals

issues

of law

or fact

to the

with common
detriment of

judicial efficiency.

Kersey v.
______

Dennison Mfg. Co., 3 F.3d

__________________

(citations omitted)

provides

(emphasis added).

sufficient

written

certification, as it should,

482, 487

(1st Cir.

When the

statement of

1993)

district court

the

grounds

for

"we normally accord its discretion-

ary decision `substantial deference' and will dismiss for lack of

`
'

appellate

jurisdiction only

if

the court's

certification

was

`clearly unreasonable.'" Id. at

`
' ___

486 (citation omitted); see also

___ ____

Curtiss-Wright, 446 U.S.

______________

at 10

("The court of

course,

district

scrutinize

factors as

the

the interrelationship

court's

appeals must

evaluation

of the claims

. . .

of

of

such

But once

20

such juridical concerns have been met, the discretionary judgment

,

of the district court should be given substantial deference.")

Although it is clear

that

the district

might avoid

court

a trial, this

from the Rule 54(b) certification

anticipated that

ground "is

an immediate

rarely, if ever,

sufficient basis for a Rule 54(b) certification."

appeal

a self-

Kersey, 3 F.3d
______

at 488; see also Spiegel, 843 F.2d at 43 n.4

___ ____ _______

concise

list of

appellate

district

understanding of

court

appeal for

of the

evidence

Id.
__

decision).

no evaluation

equities

(1st Cir. 1991)

of

no reference

favor early

the

to

appellate

the entire record on

______ ______

the entry of

judgment," such as might warrant

review notwithstanding

Feinstein v.
_________

The

pending claims, no identifica-

remaining claims, and

that the

to facilitate

any "compelling considerations favoring

appellate

findings.

contained

Consequently, we have culled

an earlier than usual

meal

be needed"

certification

of dismissed and

tion or analysis

"compelling

likely

the

certification

interdependence

review."

reasons will

(cautioning that "a

the absence

of specific

Resolution Trust Corp., 942 F.2d

______________________

(quoting Spiegel, 843 F.2d at 43

_______

a piece-

34, 40

n.4); see also

___ ____

Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 936 (1st

______
____________________

(nothing is gained by remanding a

crafted

judgment where

in due

Cir. 1995)

case for entry of a

course the

properly-

same issues

will be

from the

judgment

returned to the appellate court).

against

At the

time the

appeal was

Fisher,

the only

appropriate

taken

consideration apparently

favoring Rule 54(b) certification was the possibility that it (in

21

combination with the earlier judgment against Trainor) might prod

the parties to settle their differences, particularly in light of

the fact that the

CFI as the

district court rulings effectively substituted

sole plaintiff

with respect to

the purported

joint

venturers' claims against Biopure.

Still in the case,

with

CFI as

derivative plaintiff

parties remained

"Rule

54(b)

however, were all the same

in the

on

some.

case in connection

certification

is

particularly

claims,

Moreover,

with other

suspect

all

claims.

when

the

contestants on appeal remain, simultaneously, contestants below."

Kersey, 3
______

F.3d at

487 (citations

omitted); cf.
___

Feinstein, 942
_________

F.2d at 40 (upholding a district court certification which lacked

specific findings,

but where

the judgment

had disposed of

all
___

claims against all six appellees).

___

Settlements during

did winnow

pure.

out some claims.

Appellees suggest

in the number

court

of pending

judgment.

the pendency of the

present appeal

Trainor settled with CFI

that there will be a

claims should we

and Bio-

further reduction

affirm the

district

CFI and Biopure represent that they have condi______

tionally settled CFI's derivative

________

claims between themselves.

At

oral argument, all parties indicated that they would likely forgo

their

remaining claims

against

required

Fisher.

These

threshold

were the

court to

affirm

prospects nonetheless do

jurisdictional analysis:

"To

the judgment

not affect the

entertain an

early appeal just because . . . a [particular] ruling . . . might

_____

transpire and

might expedite
_____

a particular [party's]

case would

22

defoliate Rule

54(b)'s protective copse."

Spiegel,
_______

843 F.2d at

46.

As we scan the

present landscape, the following claims

remain

pending before the district court.

all Fisher claims against Trainor

v. Biopure, the following

_______

Trainor,15

Biopure.

and (3)

remain pending.14

remain pending:

party claims against Fisher,

In Fisher v. Trainor,
______
_______

In

(1) Biopure's

Trainor
_______

third-

(2) the Fisher counterclaim against

CFI's derivative

and direct

claims against

Thus, all claims against Fisher remain in the case, and

all parties as well.

There

is

substantial

between pending and dismissed claims.

pending

dependent

over

CFI

derivative

on the validity

the Fisher

factual

claims.

overlap as

claims

interdependence

In Trainor v. Biopure, the

_______
_______

against

and value

Biopure

of the

In addition,

between the

and overlap

are

entirely

constructive trust

there is

pending Biopure

a problematic

claims against

Fisher (for violations of RICO, Mass. Gen. L. ch. 93A, securities

fraud, common

structive

law fraud and

trust,

declaratory judgment) and

declaratory

judgment

and

unjust

the con-

enrichment

claims resolved favorably to CFI.

____________________

14Although we
separately in order
that

there are

consider

each of

to expedite

obvious

the

consolidated

our analysis, we

overlaps among

the

actions

note as

well

dismissed and

the

pending claims, which cut across these consolidated actions.

______

Cf.
___

FDIC v. Caledonia Inv. Corp., 862 F.2d 378, 381 (1st Cir. 1988).
____
____________________

15Apparently, no judgment has

claim,

although the

district

expand and amend it, and the

of CFI may moot it.

An

been entered on this counter-

court denied

Fisher's motion

to

logic of the two judgments in favor

earlier motion by Trainor to dismiss the

counterclaim also appears to remain pending.

23

Biopure

defrauded CFI in

alleges

that

Fisher,

connection with the CFI

as

well

as

Trainor,

loan transaction; that

Fisher misrepresented or failed to disclose that the funds he and

Trainor invested

in Biopure had been

fraudulently obtained from

CFI; and that their investment in Biopure was but one in a series

of

fraudulent

Fisher.

actual

transactions jointly

Similarly, although

CFI

undertaken

charged

by Trainor

Trainor alone

and

with

fraud, it alleged that Fisher "knew or should have known"

that the funds invested in Biopure had been fraudulently obtained

from CFI, without consideration.

The overlapping

CFI, and

issues

the scope

Fisher's knowledge, role, and

it, if any

by proffering

somewhat

on appeal

important respects.

Fisher

had

no actual

funds,

and that Trainor's fraud

CFI

knowledge of

offers to

the

and actually

stipulate that

tainted source

on CFI was

of their
__ _____

which have varied

ambiguous inferences

conflict in

committed

solely for purposes

______ ___ ________

Their concessions

raise

focus of successive

CFI and Biopure prevailed below

factual concessions

summary judgment motions.

_______ ________ _______

fraud on

legal responsibility for

"bid fair to form an essential

appeals." Kersey, 3 F.3d at 487.

______

of the

of the

independent of, and

prior to, the formation of the joint venture.

Biopure

tenders

similar

Fisher's

factual

pleadings, but

fraud was independent of

concessions based

does

not assume

the joint venture.

on

fragments

that Trainor's

Both

from

prior

parties offer

to stipulate that Trainor may have defrauded Fisher as well.

CFI

argues that

under Massachusetts

partnership law,

24

Mass.

Gen. L.

ch.

108A,

12, and

equitable

restitutionary

principles, it is entitled to

claims without

a constructive trust over Fisher's

regard to Fisher's

state of mind,

because Trai-

nor's independently-acquired guilty knowledge is to

be "imputed"

automatically to the Trainor-Fisher joint venture.

On the other

hand, Biopure apparently assumes

"liable"

for

"fraudulent

Trainor's fraud,

investment."

that the joint venture must

or if

See
___

not

Mass. Gen.

the fraud,

L.

be

then the

ch. 108A,

13.

Their theories are problematic.

The

are highly

cy

fact-sensitive.16

274 cmts. b

Restitution

Alan

determinative equity-based principles at work here

See Restatement
___

& c, 282 cmts.

172-74, 202, 203,

R. Bromberg

& Larry

h & i

(Second) of Agen-

(1958); Restatement of

208(3), 210-213, 215 (1937); 1

E. Ribstein,

Bromberg & Ribstein on

_______________________

Partnership
___________

4.06 & nn.

Supp. 1994);

see also
___ ____

13-16, 4.07 &

Loring v.
______

nn. 23, 27-30

Baker, 329
_____

(1991 &

Mass. 63,

65, 106

N.E.2d 434, 436-37 (1952); New England Trust Co. v. Farr, 57 F.2d
_____________________
____

____________________

16The district court made no express choice-of-law

nation, but
governs

to CFI

the parties, that

Massachusetts law

the partnership issues (the Trainor-Fisher joint venture

allegedly
what

assumed, as do

determi-

was formed in Massachusetts).

law the court utilized in

for

the fraudulent

determining the remedy available

loan

primarily

on federal cases which

than

forum.

the

Assocs., 686
_______

F.2d

We are less clear as to

transaction.

Appellees

apply the law

of states other

See Federal Deposit Ins. Corp.

___ ____________________________
550 (7th

Cir.

1982) (Illinois

rely

v. Braemoor
________
law),

cert.
____

denied, 461 U.S. 927 (1983); Higgins v. Shenango Pottery Co., 256
______
_______
____________________
F.2d

504 and

denied, 364
______

279 F.2d

46 (3d

U.S. 899 (1960).

of-law question, we intimate no

cited

rulings likewise

Cir.) (Pennsylvania

law), cert.
____

As we need not resolve the choiceopinion.

were highly

We note only that

fact-dependent, and

the

are of

little

assistance given

the

ambiguities and

conflicts in

the

hypothesized facts presented in the instant case.

____________

25

103,

111 (1st

Cir.) (applying

Massachusetts partnership

law),

cert. denied, 287 U.S. 612 (1932).

____ ______

The crux of the Rule 54(b) certification problem in the

present

context

present record

is that

any

substantive ruling

would require that we

based

on the

determine the hypothetical

____________

reach of the governing partnership law and restitutionary princi-

ples.

The materiality of the conflicting stipulations would have

to be

addressed and their limitations

Meanwhile, Fisher's knowledge of

the fraud and the scope

Trainor-Fisher

joint

considerations

underlying the Biopure

trict

court

venture would

proceedings

could

and ambiguities resolved.

very

remain

crucial, unresolved

claims.

well

of the

Subsequent dis-

render

superfluous

whatever interim appellate resolution might be predicated on this

fragile

hypothetical foundation,

required to

revisit the

and

another

central question of

and participation in the alleged scam.

exercises sacrifice judicial

tended res judicata effects.

___ ________

panel

could

be

Fisher's knowledge

Such piecemeal appellate

efficiency and risk serious,

See Kersey, 3 F.3d at

___ ______

unin-

487 (citing

cases abjuring such risks).

On

alone,

the face

there appears

of

the pleadings

"so substantial

in

Fisher v.
______

a prospect

Trainor
_______

of contextual

overlap" between Fisher's dismissed

claims (against Biopure) and

his

Trainor),

unadjudicated claims

(against

strongly against Rule 54(b) certification."

as to

Id.
__

"counsel[]

The crux of the

Fisher claims against both Trainor and Biopure for unjust enrich-

ment (Count

Five), and

against Biopure for

26

promissory estoppel

(Count Eight),

is that

expertise ("sweat

equity") to the

stantial increase in the

licensing

rights.

Fisher contributed substantial

venture, resulting in

value of the Biopure stock

In addition,

time and

a sub-

and product

the Fisher "breach of contract"

claim against Biopure, and the "interference with contract" claim

against Trainor, rest on identical factual allegations, viz., the

"switch" in contracting parties.

These overlapping

issues were not focused

district court opinion granting

a constructive trust to CFI).

disregard the

See supra p. 6.
___ _____

overlaps largely

upon in the

summary judgment to Biopure (and

The court presumably was able

because Fisher failed

to

to oppose

the motions

for summary

judgment on the

ground that

right to recover for his "sweat equity" contributions.

success of

the

motions for

assumption that Fisher's only

____

funds fraudulently

that Fisher's "sweat

that there

summary judgment

Thus, the

depended upon

an

equity" was

Notwithstanding the fact

a focus of

his complaint

was competent testimonial evidence

he did not counter with the claim that he (or

Biopure stock

investment in Biopure consisted of

obtained from CFI.

had contributed untainted

__

he had

of his efforts,17

the joint venture)

value which enhanced the

and licensing rights.

and

Instead, he

worth of the

argued simply

____________________

17Of
of

course, it was for Fisher to generate a material issue

fact that might enable

him, and not merely

CFI, to recover

from

Biopure

for

unjust

enrichment and

promissory

estoppel.

Fisher adverted to his "sweat equity" only as "consideration" for

a loan which Trainor allegedly promised Fisher.
text.
be

Passing mention of facts from

carved

does not

place

an

See accompanying
___

which a theory might later

undeveloped

argument in

issue.

United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992).

_____________
_____

27

that he was a bona fide purchaser of the loan funds

fraudulently

obtained from CFI by Trainor, on the theory that Trainor had made

a false promise to lend the CFI monies to Fisher.

By offering

the

first time at

urged that

the Rule

his "sweat equity" theory

oral argument

we relieve him

54(b) safeguards

juncture as

failure

to

waiver.18

against inefficient piecemeal

were we to attempt to

the labrynthine

to assert this theory

first instance.

Fisher essentially

of his district court

would be severely undermined

this

on appeal,

of recovery for

Moreover, an argument "surfacing

review

speculate at

consequences of

before the district

But

Fisher's

court in the

for the first

time on appeal" may be excepted from the raise-or-waive rule only

if it

is

success,

"so

and a gross

[the] failure to

F.3d at

compelling as

miscarriage of

address it."

26; see also

___ ____

virtually

to

insure

appellant's

justice would

result from

American Auto. Mfrs. Ass'n,

___________________________

Johnston v.
________

Holiday Inns, Inc.,

__________________

31

595 F.2d

890, 893 (1st Cir. 1979) (waiver rule is relaxed only in "horren-

dous cases" where a gross miscarriage would occur).

A fortiori,
_ ________

should be rigorously

pursuant to Rule

we think

it

clear that

applied to interlocutory

54(b).

The strength of

the waiver

rule

appeals certified

the forfeited

Fisher

____________________

18Fisher made reference to

comment to
opening

his reply brief as

brief

on

this theory in an "introductory"

well.

appeal ordinarily

Arguments
are

deemed

omitted from an
waived.

Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d

__________________________
______________

See
___

1, 3 (1st

Cir. 1983) ("An appellee is entitled to rely on the content of an

appellant's
appellant

brief for

the

scope of

the

issues appealed,

and

generally may not preserve a claim merely by referring

to it in a reply brief or at oral argument.").

28

theory

can

be assessed

only by

focusing

on the

core factual

allegations underlying both the dismissed and the pending claims,

as well

remedy.

as the closely

intertwined legal

any

See and compare, e.g., Meehan v. Shaughnessy, 404 Mass.

_____________________ ______
___________

419, 445-46, 535 N.E.2d 1255, 1270 (1989)

trust

issues governing

based on

usurped partnership

proportionate assessment of profits

(award of constructive

opportunities may

generated by each

entail a

partner's

efforts); Provencher v. Berman, 699 F.2d 568, 572 (1st Cir. 1983)
__________
______

(allowing non-partner wrongdoers to retain proportionate share of

property held in constructive

trust for another where wrongdoers

had

property in the

contributed value to the

form of untainted
__

personal labor).

The

"gross

requires consideration

ries.

Typically, a

litigant

miscarriage

of interrelated

justice"

test

liberty or domicile, see

___

grave personal

harm, such

theo-

shown where a

as a

loss of

American Auto. Mfrs. Ass'n, 31

__________________________

F.3d at

26 (citations), or where the

federalism or the public

likewise

factual and legal

miscarriage of justice may be

would suffer

Keller, 717
______

of

issue involves sensitive matters of

interest.

See Capitol Indem. Corp. v.

___ _____________________

F.2d 324, 328-29 (7th Cir.

1983).

A "gross miscar-

riage

of justice" also may

be found, however,

claim would "seriously effect[]

public reputation

of

if the forfeited

[sic] the fairness, integrity or

a proceeding."

Desjardins
__________

v. Van Buren
__________

Community Hosp., 969 F.2d 1280, 1282 (1st Cir. 1992).19

_______________
____________________

19New arguments may be entertained on appeal in "exceptional

circumstances" where
parties

no prejudice

or to the administration

29

would result either

of justice.

to other

United States v.
_____________

Any

showing

that

a "miscarriage

obtain in the present context

the

constructive

of

justice"

ultimately would depend on whether

trust awarded

CFI constituted

an unwarranted

"windfall," grossly disproportionate to any losses.

injustice

in any such

"windfall" is

remedial principles utilized to

the

pending claims.

See,
___

to

value

However, the

inextricably bound

to the

resolve the dismissed claims and

___

e.g., Provencher, 699

____ __________

(applying restitutionary principles where

contributed

might

of property

F.2d at 570-72

more than one claimant

claimed

under

constructive

trust); Janigan v. Taylor, 344 F.2d 781, 787 (1st Cir.) (explain_______
______

ing restitutionary principles applicable to

remedy),

cert. denied,
____ ______

382

U.S. 879

"constructive trust"

(1965);

see generally
___ _________

George E. Palmer, Law of Restitution

___________________

2.14 (1978 & Supp. 1995);

Austin W. Scott & William F. Fratcher, Scott on Trusts

_______________

ed. 1989 &

Supp. 1994);

Dale A. Oesterle,

508 (4th

Deficiencies of the
____________________

Restitutionary Right to Trace Misappropriated Property in Equity

_________________________________________________________________

and in UCC
9-306, 68 Cornell
____________________

crucial, unresolved

over which CFI has

facts

L. Rev. 172

including

(1983).

the value of

Moreover,

the claims

been awarded a constructive trust,20

and the

____________________

Rivera, 55 F.3d 703, 708 (1st Cir. 1995); cf. City of Newport v.
______
___ ________________

Fact Concerts, 453 U.S. 247, 255 (1981) (holding that a forfeited
_____________

claim may be considered on appeal where the trial court addressed

the merits of a

belated objection, and the appellate

court does

not disagree with the substance of the trial court ruling).

20Fisher asserted

at oral

argument that these

claims were

worth

at least $179 million, an estimate apparently based on the

Biopure/Upjohn

contract.

Biopure

presented below as to the value of the

stated that
claims.

no

summary

judgment,

that it was before the

and we

have seen

no

was

Fisher's supple-

mentary appendix includes an unindexed copy of the

there is no indication

proof

contract, but

district court at

record findings

as to

30

value of

Fisher's belatedly asserted untainted

__

remain central

district court.

to the disputed

contributions

claims still pending

Thus, the insufficiently

before the

developed trial court

record

precludes

miscarriage

any reliable

determination

of justice would obtain

as

to whether

were the waiver

applied to the Fisher v. Trainor action.

______
_______

rule to be

____________________

value.

31

III
III

CONCLUSION
CONCLUSION
__________

Accordingly,

(1)

idently

As the second Rule 54(b) certification was improv-

granted, we

lack appellate

appeal in No. 95-1092,

jurisdiction of

the Fisher

which is hereby dismissed without

_________

preju-

dice;

(2)

the Ideal

appeal in No. 95-1091 is

dismissed for
_________

lack of appellate jurisdiction and lack of standing;

(3)

the

the

motion to vacate

Trainor appeal in No.

"cross-appeal

the voluntary dismissal

94-1854 is denied,
______

of

and the so-called

brief" filed by Fisher and Ideal in No. 94-1854 is

hereby stricken;
________

(4)

the

case is

remanded to

the district

court for

further proceedings consistent with this opinion; and

(5)

double costs are awarded to CFI

____________

Fed. R. App. P. 38.

SO ORDERED.
SO ORDERED.
__ _______

and Biopure.

See
___

32