Arabian Support & Services Com v. Textron Systems Corporation , 855 F.3d 1 ( 2017 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-1309
    ARABIAN SUPPORT & SERVICES CO., LTD.,
    Plaintiff, Appellant,
    v.
    TEXTRON SYSTEMS CORP.,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Richard G. Stearns, U.S. District Judge]
    Before
    Lynch, Lipez, and Thompson,
    Circuit Judges.
    Haig V. Kalbian, with whom D. Michelle Douglas, Kalbian
    Hagerty LLP, Martin F. Gaynor III, Nicholas D. Stellakis, and
    Manion Gaynor & Manning LLP were on brief, for appellant.
    Edwin John U, with whom John A. Tarantino, Brian R. Birke,
    Adler Pollock & Sheehan P.C., Eugene F. Assaf, Erin C. Johnston,
    Ronald K. Anguas, Jr., and Kirkland & Ellis LLP were on brief, for
    appellee.
    April 19, 2017
    LIPEZ, Circuit Judge.      In this diversity action, Arabian
    Support & Services Co. ("ASASCO"), a Saudi Arabian business, seeks
    compensation for assisting Textron Systems Corporation in its
    efforts, over a number of years, to complete a deal to sell sensor
    fuzed weapons ("SFWs") to the Saudi government.             ASASCO claims
    that Textron failed to abide by a promise to supplement the modest
    fees paid under the parties' written consulting agreements through
    an "offset" arrangement linked to the weapons sale.1         The district
    court granted summary judgment for Textron on all of ASASCO's
    claims after allowing limited discovery and declining to provide
    ASASCO an opportunity to amend its complaint.
    Although we agree that ASASCO's contract and tort claims
    are not viable, we conclude that the district court erroneously
    dismissed   ASASCO's   Chapter   93A    misrepresentation    claim   based
    1 The U.S. Department of Commerce describes "offsets" as "the
    practice by which the award of defense contracts by foreign
    governments or companies is conditioned upon commitments from the
    defense contractor to provide some form of compensation to the
    purchaser."   U.S. Dep't of Commerce, Bureau of Indus. & Sec.,
    Guidance for Complying with the Bureau of Industry and Security's
    Procedures for Reporting on Offsets Agreements Associated with the
    Sales of Weapon Systems or Defense-Related Items to Foreign
    Countries              or              Foreign              Firms,
    https://www.bis.doc.gov/index.php/other-areas/strategic-
    industries-and-economic-security-sies/contact-the-office-of-
    strategic-industries-a-economic-security/guidance-for-reporting-
    on-offset-agreements (last visited March 16, 2017).           That
    compensation can be directly related to the purchase, perhaps
    through subcontracting within the purchasing country, or may take
    the form of other types of investments made in the purchasing
    country. 
    Id. - 2
    -
    solely on the failure of the contract claim.                   See Mass. Gen. Laws
    Ann. ch. 93A, § 11.             Textron offers no persuasive alternative
    rationale to support the court's ruling. Hence, ASASCO is entitled
    to proceed with its claim that Textron engaged in an unfair
    business    practice     by     procuring         ASASCO's   agreement       to    low-fee
    consulting contracts with the promise of a future offset benefit
    and then, after successfully signing the weapons deal, disclaiming
    any   additional     financial         obligation       to    the    Saudi        company.
    Accordingly, we vacate the summary judgment in part and remand for
    further proceedings on ASASCO's misrepresentation theory.
    I.
    We    will    not       review    in     full    the    parties'       lengthy
    relationship, which developed largely through interactions between
    Mansour    Al-Tassan,     ASASCO's       president,          and    Avedis    Boyamian,
    Textron's Director of Middle East Business Development.                            As the
    history is well known to both parties, we choose here to recount
    only those facts pertinent to our decision.
    A. The Consulting Agreements
    For three-plus years -- from March 2005 through August
    2008 -- Textron and ASASCO signed successive consulting contracts
    providing ASASCO with a monthly retainer of $10,000.                           Beginning
    September    1,   2008,       the    consulting       contract      was   extended      in
    increments of one to three months on a no-fee basis.                                 That
    arrangement continued for a year, until a new two-year agreement
    - 3 -
    was signed that set ASASCO's monthly retainer at $500.           The $500
    fee remained in place through subsequent contract extensions until
    August 31, 2013, at which point Textron terminated the consulting
    arrangement.    In the email sent on August 29 notifying ASASCO that
    Textron   had   elected   to   end   the   relationship,   the     company
    spokesperson stated that Textron was "not aware of any outstanding
    obligations between the parties."
    Each of the consulting contracts between 2005 and 2011
    contained a provision stating that the parties agreed that "any
    and all services rendered by CONSULTANT to the COMPANY shall be
    deemed to have been given pursuant to this Agreement and no
    additional payments [other than for approved travel expenses]
    shall be due to or paid to CONSULTANT."            However, the 2011
    agreement for the first time contained an expanded version of this
    no-other-payments    statement,      providing   that   the      specified
    compensation was "the exclusive remuneration to be paid by the
    COMPANY" for "the services provide[d] by CONSULTANT."            The 2011
    agreement also featured an integration provision:
    This Agreement constitutes the entire
    agreement of the parties hereto with respect
    to the subject matter hereof and supersedes
    all prior agreements or understandings,
    written or oral. Each party hereby waives the
    right to assert any claim against the other,
    its employees, customers or assigns, based on
    any oral representations, statement, promise
    or agreement whether made before or after the
    date of this Agreement.
    - 4 -
    B. The Offset Dialogue
    Through the years of their consulting relationship,
    beginning no later than May 2006,2 Textron and ASASCO regularly
    discussed the opportunity for additional compensation to ASASCO
    through its involvement in offset projects that were an anticipated
    requirement of the Saudi weapons deal.         The record also contains
    internal   Textron   emails   indicating     that   ASASCO's   anticipated
    offset activity -- and compensation -- would be independent of the
    consulting    agreement.      This    correspondence   includes   a   draft
    "Offset Services Agreement" prepared by Textron in June 2006, an
    email from Boyamian to Al-Tassan that month stating that Textron
    was "in the process of getting the Offset Provider Agreement
    approved," and, on the same day, an internal Textron email asking
    that "two books" be started for the company's business with ASASCO
    ("one for a new offset agreement with Asasco, and one for a renewal
    of the consultant agreement").3
    Textron and ASASCO never entered into a written offset
    agreement. Instead, in February 2008, Textron and Blenheim Capital
    2  Although   Al-Tassan's   declaration   describes   earlier
    discussions between him and Boyamian on potential offset business,
    we use this date because it is supported in the record by emails
    between the two men.
    3 In response to a question concerning the connection between
    ASASCO's reduced consulting fee and its offset role, Boyamian
    testified during his deposition that the "consultancy services and
    offset providing services" were "two separate things."
    - 5 -
    Partners Limited signed an Offset Services Agreement ("OSA") that
    permitted but did not require Blenheim to subcontract with ASASCO
    -- although no other subcontractor could be used without Textron's
    "prior written consent."     Six months later, in an internal email
    dated September 8, Boyamian told colleagues at Textron that,
    "Effective September 1st, 2008, [Textron] stopped paying ASASCO
    the monthly consultancy fee because, [Textron] through Blenheim,
    an offset service provider company based in UK, has an offset
    service providing agreement with ASASCO for [Textron] business
    offset requirements in Saudi Arabia."       The email also reported
    that a two-year renewal of ASASCO's consulting agreement was in
    the works, "with a nominal monthly fee of $500/month."          Boyamian
    forwarded this email to Al-Tassan.
    The   Textron-Blenheim-ASASCO   association   was    further
    formalized in April 2009, when Blenheim and ASASCO entered into a
    subcontracting agreement under which ASASCO was entitled to 75
    percent of the fees paid by Textron to Blenheim under the OSA.
    The Blenheim-ASASCO contract anticipated that these fees would be
    deposited into an escrow account, which was to be created "as soon
    as practicable," and, indeed, ASASCO's right to payment under that
    contract was contingent on "the full amount of the applicable fee
    under the Offset Services Agreement being paid to the Escrow
    Account."    Although Textron's agreement with Blenheim did not by
    its terms provide for an escrow account, Boyamian appeared to
    - 6 -
    believe that such an account would exist. In a November 2008 email
    to Al-Tassan, Boyamian stated his understanding "that Textron will
    be paying 8% of the contract value to the escrow account for
    offset."        So far as it appears from the record, no escrow account
    was ever created.
    From the time of Blenheim's appearance on the scene (in
    2008) through early 2011, all three businesses -- Textron, ASASCO,
    and Blenheim -- were involved in discussions about offset projects.
    Among the later emails exchanged was one sent to Al-Tassan on March
    2,       2011      from    Steven    Cahall    of    Blenheim,    which
    reviewed the possible fee arrangements among Textron, Blenheim,
    and ASASCO depending upon whether Textron was required to make
    offset investments.4        The three-way dialogue formally ended in
    November of that year, however, when Textron sent Blenheim a letter
    stating that the companies were mutually ending the OSA.5        By its
    4 The companies had been discussing the possibility that the
    offset obligation would be waived for the Textron weapons deal.
    Cahall's email stated: "If there is an offset obligation then
    ASASCO MUST INVEST ITS FEES ENTIRELY INTO THE OFFSET PROJECTS. If
    there is a waiver of the offset obligation then ASASCO does not
    have to invest the fees."
    5 The termination letter sent from Textron to Blenheim, dated
    November 28, 2011, was "[a]greed to and accepted" by Blenheim by
    means of a signature dated January 12, 2012. The letter attributed
    the termination to "recent changes to the offset guidelines in
    Saudi Arabia." The letter also stated that "[t]he Offset Services
    Framework Agreement between [Textron] and [Blenheim], dated
    January 18, 2011 will remain in force for the duration of its term
    and will cover all future offset activity for Saudi Arabia."   The
    parties do not explain this latter agreement in their briefs.
    - 7 -
    terms, the Blenheim-ASASCO agreement also terminated when the OSA
    terminated.      ASASCO claims that it was not told, and did not know,
    that Textron and Blenheim had ended the OSA until September 2013.
    C. The Weapons Deal
    On January 3, 2012, roughly a month after Textron sent
    Blenheim the termination letter, Boyamian sent Al-Tassan an email
    reporting that Saudi officials had, on December 24, signed a
    "Letter of Offer and Acceptance" ("LOA") -- essentially a statement
    of intent to make a deal -- "as a Christmas gift to us."           Boyamian
    concluded his message with "CONGRATULATIONS to all of us." Through
    2012,   allegedly    without     knowledge   that   its   subcontract    with
    Blenheim had ended (upon termination of the OSA), ASASCO continued
    to work with Textron to set up meetings with Saudi government
    officials.    The correspondence between the two companies included
    reference to the offset requirement.          In an email to Boyamian in
    November 2012, Al-Tassan noted an effort to set up a meeting for
    Textron's chairman with the Saudi Minister of Economy and Planning,
    who "is also the Head of the Saudi Economic Offset which Textron
    might want to explore with the minister."
    Textron and Saudi Arabia finalized an agreement for the
    weapons deal in late August 2013.            About a week later, ASASCO
    received   the    notification    that   Textron    was   terminating   their
    consulting relationship.         In a deposition conducted on December
    16, 2015, a Textron representative testified that, as of that date,
    - 8 -
    the company had not yet reached an offset agreement with the Saudi
    Arabian government, but he reported that Saudi officials had
    confirmed that such an agreement was required.6
    II.
    In its lawsuit, ASASCO claims that, over an extended period
    of   time,   it   provided   essential   support   at   minimal   cost   for
    Textron's pursuit of a weapons deal in Saudi Arabia based on
    assurances from Textron that ASASCO would have a large financial
    stake in any offset activity related to that deal.                When the
    weapons deal was finally made, ASASCO asserts, Textron backed away
    from its promises. ASASCO's complaint presented this claim through
    three theories of liability: (1) breach of contract, specifically
    the OSA, based on a third-party beneficiary theory; (2) tortious
    interference with ASASCO's business and contractual relationship
    with Blenheim; and (3) violations of Chapter 93A, the Massachusetts
    Deceptive Trade Practices Act, Mass. Gen. Laws Ann. ch. 93A, § 11.
    6
    Stephen Fogarty, whose job duties at Textron included review
    of offset agreements, testified as follows:
    [T]here is no question we will have an offset
    obligation and there will be an offset
    program.
    The only thing that is in question at
    this moment, is when will this offset
    agreement be signed, when will this program
    begin, and what will be the period of
    performance for this offset program.
    - 9 -
    When Textron moved to dismiss the complaint, ASASCO
    sought leave to amend it to address any deficiencies and, possibly,
    to add new claims, including fraudulent inducement, breach of the
    covenant of good faith and fair dealing, and tortious interference
    with prospective business advantage.       No discovery had yet taken
    place.      Shortly   thereafter,   the   district   court   entered   an
    electronic order notifying the parties that (1) it was reserving
    ruling on the motion to dismiss, (2) it intended to convert that
    motion into one for summary judgment, and (3) it would permit
    limited discovery on two issues.7     Textron later moved for summary
    judgment and renewed its motion for dismissal, and ASASCO again
    asked for the opportunity to amend its complaint before the
    district court's final disposition of the case. ASASCO also sought
    additional discovery pursuant to Federal Rule of Civil Procedure
    56(d), asserting that Textron's motions encompassed issues beyond
    the scope of the limited discovery the court previously had
    allowed.
    7   The court described the two issues as follows:
    (1) the authenticity of, and plaintiff Arabian
    Support   &   Services    Company   (ASASCO)'s
    knowledge of, the Termination Letter [from
    Textron to Blenheim], . . . ; and (2) the
    authenticity of the [2011-13] Consulting
    Agreement [between Textron and ASASCO], as
    well as the preclusive effect, if any, of its
    terms, particularly with respect to the
    operation of the integration clause.
    - 10 -
    In its Memorandum and Order granting summary judgment
    for Textron, the district court rejected ASASCO's third-party-
    beneficiary contract theory based on the OSA between Textron and
    Blenheim    because    "Textron   did   all   that   it    was    contractually
    obligated to do."       Arabian Support & Servs. Co. v. Textron Sys.
    Corp., No. 1:15-cv-12951-RGS, 
    2016 WL 1048868
    , at *4 n.9 (D. Mass.
    Mar. 11, 2016).       The court also stated that, given the absence of
    a contractual breach, "there is no viable allegation of tortious
    interference or violations of Chapter 93A."               
    Id. The court
    did
    not address ASASCO's requests for leave to amend or additional
    discovery.
    We review the district court's grant of summary judgment
    de novo, taking the facts and all reasonable inferences therefrom
    in the light most favorable to ASASCO as the non-moving party.
    Rando v. Leonard, 
    826 F.3d 553
    , 556 (1st Cir. 2016).                   "Summary
    judgment is warranted where 'there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter
    of law.'"     
    Id. (quoting Fed.
    R. Civ. P. 56(a)).
    We detect no error in the district court's conclusions
    on two of ASASCO's three theories of liability.                 With respect to
    the contract claim, even if ASASCO was an intended third-party
    beneficiary of certain provisions of the OSA, Textron did not
    violate any of the terms of that agreement.               As permitted by the
    contract, Textron and Blenheim ended the OSA by mutual agreement.
    - 11 -
    In addition, the OSA did not require Textron to pay the fees that
    were intended to reach ASASCO through Blenheim into an escrow
    account.8        Only   the    subcontract         between   Blenheim    and    ASASCO
    required the escrow arrangement.                 Thus, even if Textron made a
    payment directly to Blenheim -- as ASASCO alleges and Textron
    disputes    --    Textron     would       not   have   violated   any    contractual
    provision.       Hence, ASASCO is without a breach on which to hang its
    third-party-beneficiary contract claim.
    Nor do we see a basis for relief from Textron for
    tortious    interference           with   ASASCO's     business    or    contractual
    relationship with Blenheim.               ASASCO voluntarily entered into an
    agreement that expressly made its continued relationship with
    Blenheim    contingent        on    Textron's      voluntary   relationship      with
    Blenheim.        In the definitions section of the ASASCO-Blenheim
    contract, "Termination Date" is defined as "the earlier of [] the
    date on which the Offset Services Agreement is terminated for any
    reason,"    or    the   date       on   which   termination     occurs    for   other
    specified reasons. Moreover, the OSA did not even require Blenheim
    to hire ASASCO as its offset subcontractor, although Textron
    secured     that     relationship          by    stipulating      that    no    other
    subcontractor could be hired without Textron's permission.                      To say
    8 The OSA stated that the fees specified therein "will be paid
    to the account of BLENHEIM notified to [Textron]. Fees may not be
    paid to BLENHEIM by way of cash or bearer instrument."
    - 12 -
    that Textron then improperly interfered in ASASCO's association
    with   Blenheim     when   it   ended       the    OSA   disregards    the    limited
    commitments made by the three businesses in the two Blenheim
    agreements.
    Put another way, the harm ASASCO seeks to vindicate is
    not the elimination of the ASASCO-Blenheim collaboration per se,
    but the elimination of its own participation in potential offset
    activity -- as allegedly promised by Textron.                  The Blenheim-ASASCO
    agreement was, for a time, the means by which ASASCO was to obtain
    such involvement.      With Textron's termination of the OSA, ASASCO
    automatically lost its contractual right to offset business via
    its own agreement with Blenheim -- but ASASCO has not presented a
    supportable rationale for finding that Textron owed it a duty to
    protect the ASASCO-Blenheim agreement by maintaining the OSA.
    On the other hand, if Textron did promise ASASCO offset-
    related    remuneration,        but    then       terminated    the    OSA    without
    providing ASASCO an alternative means to obtain it, we see room
    for    a   viable     Chapter         93A    claim       premised     on     Textron's
    misrepresentations.        As we have described, the gist of ASASCO's
    complaint is that it was induced into providing ongoing consulting
    services to Textron for both no fee and -- in Boyamian's words --
    "a nominal monthly fee" by Textron's assurance of future offset
    activity and compensation.             See Compl. at ¶ 34 (alleging that,
    after Blenheim "ceased its communications with ASASCO" in 2011,
    - 13 -
    Textron "assur[ed] ASASCO that its role in the offset arrangement
    was secure"); ¶ 37 (alleging that, by December 2011 or shortly
    thereafter, Textron knew that "it did not intend to follow through
    on its commitment to compensate ASASCO through the [Textron]-
    Blenheim-ASASCO offset arrangement," yet failed to inform ASASCO
    and "persisted in its offset-related discussions with ASASCO");
    ¶ 44 (alleging that Boyamian promised Al-Tassan that Textron "would
    'find   another   way'"   to     provide    "ASASCO's      anticipated     offset-
    related compensation").
    Textron points to the integration provision in the 2011
    consulting contract as a barrier to any such claim based on verbal
    representations.    However, the clear division that was established
    early on between ASASCO's consultant role and its future offset
    role could mean that the integration provision was understood --
    or represented by Textron -- to apply to the former but not the
    latter.    Moreover,      such    a   provision     does    not   always    bar   a
    misrepresentation claim.          See Kenda Corp. v. Pot O'Gold Money
    Leagues, Inc., 
    329 F.3d 216
    , 226 (1st Cir. 2003) ("[I]t is well
    settled   in   Massachusetts      that     '[a]n   integration     clause    in   a
    contract does not insulate automatically a party from liability
    where he induced another person to enter into a contract by
    misrepresentation.'" (quoting Starr v. Fordham, 
    648 N.E.2d 1261
    ,
    1268 (Mass. 1995)) (second alteration in original)); Bates v.
    Southgate, 
    31 N.E.2d 551
    , 558 (Mass. 1941) ("[I]t is entirely
    - 14 -
    possible for a party knowingly to agree that no representations
    have been made to him, while at the same time believing and relying
    upon representations which in fact have been made and in fact are
    false but for which he would not have made the agreement.").
    Particularly where there has been a longstanding "history of
    performance" between the parties, "reliance on the complained-of
    duping conduct" could be found reasonable. HSBC Realty Corp. (USA)
    v. O'Neill, 
    745 F.3d 564
    , 573 (1st Cir. 2014).
    Hence, the integration clause does not necessarily exclude
    the Chapter 93Aa claim, and the record contains facts that,
    depending    on    the    surrounding       circumstances,    could       support    an
    inference    of     deception.        The    two    actions   by    which    Textron
    eliminated    its       connection    with   ASASCO     (first,     indirectly,      by
    terminating       the    OSA   and,   second,      by   declining    to   renew     the
    consulting agreement) coincide with significant developments in
    Textron's efforts to win the Saudi weapons contract.                      The end of
    the OSA overlapped with the signing of the LOA for the weapons
    deal, and ASASCO's consulting agreement ended right after the
    weapons deal came to fruition.               If Textron knew at the time it
    signed the 2011 consulting agreement that it would soon end the
    OSA, but did not tell ASASCO because it wanted to keep the Saudi
    company on board at a low fee to help finalize the weapons deal,
    Textron's silence could be found consequential.                See, e.g., Incase
    Inc. v. Timex Corp., 
    488 F.3d 46
    , 57 (1st Cir. 2007) (noting that
    - 15 -
    "[s]ome cases have held that an act or practice is deceptive 'if
    it could reasonably be found to have caused a person to act
    differently from the way he or she otherwise would have acted'"
    (quoting Aspinall v. Philip Morris Cos., 
    813 N.E.2d 476
    , 486 (Mass.
    2004))); Lambert v. Fleet Nat'l Bank, 
    865 N.E.2d 1091
    , 1098 (Mass.
    2007) (observing that "'stringing along' that induces detrimental
    reliance    can,    in    some     cases,    constitute        a    [Chapter]      93A
    violation"); McEvoy Travel Bureau, Inc. v. Norton Co., 
    563 N.E.2d 188
    , 192 (Mass. 1990) ("Massachusetts law clearly states that
    statements of present intention as to future conduct may be the
    basis for a fraud action if . . . the statements misrepresent the
    actual intention of the speaker and were relied upon by the
    recipient to his damage.").9
    Such a deliberate failure to disclose the impending
    termination of the OSA would be even more significant if Textron
    also was planning by that time to end any relationship with ASASCO
    as   soon   as   the     weapons   deal     was   finalized.             Why    Textron
    substantially      reduced   the    consulting     fee    --       and    why   ASASCO
    9Textron asserts in its brief on appeal that "ASASCO cannot
    now claim a right to be paid for separate 'offset services' when
    it is undisputed that ASASCO never provided any such services."
    However, ASASCO's contention is that it was denied a promised
    opportunity to perform offset services. As noted above, Textron's
    representative reported that "there is no question we will have an
    offset obligation and there will be an offset program." See supra
    note 6.
    - 16 -
    acquiesced to the reduction -- also seem relevant, and potentially
    revealing, for ASASCO's claim that it was promised offset-related
    compensation outside of the consulting agreements.10            Likewise, the
    Offset Services Framework Agreement between Textron and Blenheim,
    which the district court described as "intended to replace the
    OSA," may have significance, but the court (like the parties on
    appeal) did not discuss the contents of that contract.                  Arabian
    Support & Servs. Co., 
    2016 WL 1048868
    , at *2.
    In   sum,   we   disagree   with   the    district    court    that
    ASASCO's Chapter 93A claim -- or, indeed, other potential claims
    resting on alleged misrepresentations by Textron -- necessarily
    fail because Textron did not breach the OSA.           To the contrary, as
    described   above,   ASASCO    has   identified      evidence    that   raises
    sufficient doubts concerning Textron's actions and motivations
    that a violation of Chapter 93A is viable.              We therefore must
    vacate the summary judgment on that claim and remand the case for
    further proceedings on the misrepresentation theory.
    10 Boyamian testified in deposition that Textron in 2008
    sought to eliminate all consultant fees to reduce the company's
    expenses. In addition, when asked if ASASCO was "doing a great
    deal of work for Textron" while it was receiving the $500 monthly
    stipend, he responded, "I don't think so." By contrast, Al-Tassan,
    while acknowledging that he signed agreements with the reduced
    fees, stated that "there were some representations on the other
    side, so that's why."
    - 17 -
    Relatedly,     the district court denied ASASCO further
    discovery and the opportunity to amend its complaint in apparent
    reliance on its view that such efforts would be futile because
    ASASCO did not have a viable misrepresentation-based claim.                   In
    light of this decision, ASASCO should be given the opportunity to
    amend its complaint to supplement its Chapter 93A claim with any
    common-law misrepresentation claims supported by the record.                See,
    e.g., Grant v. News Group Bos., Inc., 
    55 F.3d 1
    , 5 (1st Cir. 1995)
    (stating that, "unless there appears to be an adequate reason for
    the denial [of leave to amend] (e.g., undue delay, bad faith,
    dilatory   motive   on    the   part   of   the   movant,   futility   of    the
    amendment), we will not affirm the denial").                We leave to the
    district   court    the    decision     whether     further    discovery      is
    appropriate.11   We also leave to its discretion whether to allow a
    renewed motion for summary judgment in light of any new theories
    presented and the possibility of an expanded record on remand.12
    11 As Textron points out, the district court did allow some
    discovery by ASASCO beyond the express limits of the original
    discovery order.    The topics permitted included communications
    between Textron and ASASCO "regarding changes in any monthly fees
    paid to ASASCO," and "representations or statements made to
    Plaintiff to encourage Plaintiff to enter into" the consulting
    agreements with Textron.     Hence, ASASCO already has had some
    opportunity   to   obtain  evidence   related   to  the   alleged
    misrepresentations.
    12 If the district court allows another round of summary
    judgment motions on remand, it should also reconsider its order
    striking parts of the Al-Tassan declaration and specify the
    portions, if any, it strikes.
    - 18 -
    Vacated and remanded.   No costs.
    - 19 -
    

Document Info

Docket Number: 16-1309P

Citation Numbers: 855 F.3d 1

Filed Date: 4/19/2017

Precedential Status: Precedential

Modified Date: 1/12/2023