Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1926

MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC.,

Plaintiff, Appellant,

v.

AMERICAN BAR ASSOCIATION, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Michael L. Coyne, with whom Peter M. Malaguti was on brief,

for appellant.

Joseph L. Kociubes, with whom Peter J. Mancusi, Bingham, Dana

LLP, David T. Pritikin, David R. Stewart, Sidley & Austin, Darryl

L. DePriest, and Catherine A. Daubard were on brief, for appellees

American Bar Association and affiliated individuals.

Vincent M. Amoroso, with whom Peabody & Arnold, Robert A.

Burgoyne, and Fulbright & Jaworski L.L.P. were on brief, for

appellee Association of American Law Schools.

James R. DeGiacomo, with whom Judith K. Wyman and Roche,

Carens & DeGiacomo, P.C. were on brief, for appellee New England

School of Law.

April 24, 1998

SELYA, Circuit Judge. The lawsuit that undergirds this

appeal pits a fledgling law school, built on a foundation of

unconventional premises, against the legal establishment. The

gargantuan record, capable of inducing tapephobia in even the

hardiest appellate panel, is forbidding, but sheer bulk rarely is

an accurate proxy for complexity. Having scaled the mountain of

papers and obtained a clear view of the legal landscape, we

conclude that the lower court correctly apprehended both the issues

and the answers. Consequently, we uphold the several rulings that

the appellant so vigorously contests.

I. THE PROTAGONISTS

In late 1995, Massachusetts School of Law (MSL) sued the

American Bar Association (the ABA), the American Association of Law

Schools (the AALS), New England School of Law (NESL), and fourteen

individual defendants. The facts that inform MSL's wide-ranging

allegations are too diffuse to shed much light at this juncture, so

we leave them shuttered until they can illuminate the specific

issues raised by this appeal. We deem it helpful, however, to

describe at the outset the institutions and individuals involved in

the litigation.

We begin with MSL, a non-profit institution that opened

its doors in 1988. The school's self-proclaimed mission is to

provide high-quality, affordable legal education to capable persons

who traditionally have been shut out of the legal profession,

including members of disadvantaged demographic populations and

persons turning to the law in search of a second career. To this

end, MSL does not require applicants to take the Law School

Aptitude Test (LSAT) because it considers the test biased.

Moreover, MSL's curriculum features a higher-than-usual percentage

of adjunct instructors and a concentrated focus on professional

skills courses. MSL is not a fully accredited law school, but in

1990, the Massachusetts Board of Regents authorized the school to

award the J.D. degree and thereby enabled MSL graduates to sit for

the Massachusetts bar.

The ABA is the largest national organization of the legal

profession. It has a membership of more than 380,000, composed

principally of practicing lawyers (including lawyers in government

and corporate America), judges, court administrators, and legal

educators. Though the ABA does not have the power to discipline

lawyers, it promulgates model rules, develops guidelines, and

strives to function as the national voice of the legal profession.

In that capacity, it long has served as the chief accreditor of law

schools.

The AALS is a non-profit association of 160 law schools.

Its stated objective is "the improvement of the legal profession

through legal education." It serves as a trade organization for

law professors and, with reference to legal education, acts as the

academy's principal representative to the federal government and to

national higher education organizations. The AALS is separate from

the ABA, but the two informally interlock in various ways. Many

individuals are active in both organizations and many AALS members

participate in the ABA accreditation process.

The fourteen individual defendants divide into two

groups. One group (the Eight Individual Defendants) comprises the

seven members of the ABA's Accreditation Committee (the Committee)

plus the immediate past chair of the ABA's Section of Legal

Education and Admissions to the Bar (the Section). The other group

(the Six Individual Defendants) comprises the five members of the

ABA team that visited MSL during its unsuccessful effort to obtain

accreditation, plus a consultant who advised the ABA during that

process. All fourteen individual defendants are active

participants in accreditation-related matters.

NESL is an ABA-accredited law school located in Boston,

Massachusetts. MSL regards itself as a competitor of NESL and

one which, if accredited, would be all the more formidable.

II. THE ACCREDITATION PROCESS

For more than 70 years, the ABA has promulgated the

standards for law school accreditation (the Standards). It is

widely believed among legal educators and regulatory organizations

that compliance with the Standards enhances the quality of legal

education. MSL disputes this conventional wisdom but, since 1952,

the United States Department of Education (the DOE) has recognized

the ABA as a "reliable authority" anent the quality of legal

education and has designated it as the relevant accrediting body.

20 U.S.C. 1099b(a). As a result of this recognition, ABA-

accredited schools are eligible to participate in federal student

loan programs. See 20 U.S.C. 1141(a)(5). Accredited

institutions also receive various state-based benefits, not the

least of which is that all fifty states, the District of Columbia,

and the Commonwealth of Puerto Rico deem graduation from an ABA-

accredited institution sufficient to satisfy the legal education

requirement for admission to the bar.

The accreditation process works something like this. A

law school may apply for ABA accreditation after three years of

operation. Its application must include a self-study, delineating

its perception of its present and projected compliance with the

Standards and explaining any deviations from them. The Committee

reviews each application and appoints a site-visit team to conduct

interviews and inspect the applicant's physical plant. This team

reports its findings to the Committee. If the Committee determines

that the school is in compliance with the Standards, the

accreditation process moves forward. If a school is found not to

be in compliance with the Standards, the Committee nonetheless may

recommend provisional accreditation if it receives satisfactory

assurances that the applicant will achieve compliance within three

years. See Standard 104(a).

In the absence of compliance (actual or anticipated),

there is another potential route to accreditation: the applicant

may request a variance from the Standards, and the body that

oversees the accreditation process, the Council of the Section (the

Council), may choose to grant it as a matter of discretion.

Standard 802 governs the variance procedure. Because this Standard

is central to MSL's accreditation effort, we reprint it in full:

A law school proposing to offer a program of

legal education contrary to the terms of the

Standards may apply to the Council for a

variance. The variance may be granted if the

Council finds that the proposal is consistent

with the general purpose of the Standards.

The Council may impose such conditions or

qualifications as it deems appropriate.

III. MSL'S ACCREDITATION EFFORT

MSL applied for ABA accreditation in 1992. From the

outset, MSL recognized that its practices were discordant with the

Standards, yet remained steadfast in its deliberately contrarian

mission. At no time did MSL argue present compliance with the

Standards or promise future compliance. Instead, it confessed in

its self-study that "[t]o the considerable extent MSL's goals and

methods are innovative, sometimes they deliberately run counter to

conventional ABA criteria of accreditation." Not surprisingly, MSL

invoked Standard 802 by letter dated January 27, 1993, and

requested "a waiver of each and every Standard that . . . might bar

accreditation" on the ground that, despite its admitted lack of

conformity, "MSL provides a high quality legal education that meets

the underlying objectives of the accreditation process."

An ABA team visited MSL's campus in April 1993. The next

month, the site-visit team recommended that the Committee deny

accreditation because MSL was in default of myriad Standards. The

Committee accepted the recommendation and rejected the application.

MSL successively appealed to the Council and to the ABA's House of

Delegates, both of which upheld the denial of accreditation.

IV. PROCEDURAL HISTORY

Although the instant litigation has all the hurly-burly

of a major engagement, it is in point of fact a rear-guard action.

In November 1993, MSL brought an antitrust suit against the ABA,

the AALS, and twenty-one individual defendants (including twelve of

the fourteen persons sued here) in the United States District Court

for the Eastern District of Pennsylvania. The Third Circuit

subsequently characterized MSL's complaint as alleging that the

named defendants conspired "to enforce the ABA's anticompetitive

accreditation standards [and thus violated the Sherman Act] by:

(1) fixing the price of faculty salaries; (2) requiring reduced

teaching hours and non-teaching duties; (3) requiring paid

sabbaticals; (4) forcing the hiring of more professors in order to

lower student/faculty ratios; (5) limiting the use of adjunct

professors; (6) prohibiting the use of required or for-credit bar

review courses; (7) forcing schools to limit the number of hours

students could work; (8) prohibiting ABA-accredited schools from

accepting credit transfers from unaccredited schools and from

enrolling graduates of unaccredited schools in graduate programs;

(9) requiring more expensive and elaborate physical and library

facilities; and (10) requiring schools to use the LSAT."

Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n,

107 F.3d 1026, 1031-32 (3d Cir.) (MSL I), cert. denied, 118 S. Ct.

264 (1997). Between 1994 and 1996, the district court published no

fewer than nine opinions. At the end of the line, the district

court entered summary judgment in favor of all remaining defendants

(including the ABA and the AALS), and the Third Circuit affirmed.

See id.

With the antitrust case still extant, MSL sought to try

its luck in the Massachusetts state courts. Its suit named the

ABA, the AALS, twelve of the same individuals whom it had sued in

MSL I, and three virgin defendants (NESL and two additional

Committee members, Moeser and Yu). MSL's complaint asserts claims

for violation of Mass. Gen. Laws ch. 93A and for tortious

misrepresentation against all the defendants, as well as claims for

fraud, deceit, civil conspiracy, and breach of contract against the

AALS, the ABA, and the fourteen named individuals. The strand that

sews together this tapestry of charges is MSL's accusation that the

ABA and the AALS for many years have banded together to monopolize

legal education with a goal of increasing their institutional power

and boosting the salaries of law professors and administrators.

MSL asserts that its educational philosophy poses a threat to the

ABA/AALS cabal and that the two organizations therefore conspired

to deny MSL accreditation, despite the fact that MSL's educational

offerings are exemplary.

Invoking 20 U.S.C. 1099b(f), discussed infra Part V,

the defendants removed the case to the United States District Court

for the District of Massachusetts. The district court denied MSL's

timely motion to remand. After a full year's worth of pretrial

skirmishing, the court methodically dismembered MSL's complaint,

defendant by defendant, during a four month period in 1997: on

January 10, it granted NESL's motion to dismiss pursuant to Fed. R.

Civ. P. 12(b)(6); on February 13, it granted the Eight Individual

Defendants' motion to dismiss for lack of personal jurisdiction; on

March 3, it granted the AALS's motion for summary judgment; and on

May 8, it granted summary judgment in favor of the ABA and the Six

Individual Defendants. MSL appeals from each of these rulings.

We first address two threshold jurisdictional issues:

the refusal to remand and the court's holding that it lacked

jurisdiction over the Eight Individual Defendants. From that point

forward, we proceed on a defendant-by-defendant basis.

V. THE MOTION TO REMAND

The court below denied MSL's motion to remand, ruling

that the suit arose under federal law. See 28 U.S.C. 1331

(1994); see also Viqueira v. First Bank, F.3d , (1st

Cir. 1998) [No. 97-2127, slip. op. at 8-13] (discussing federal

question jurisdiction). Judge Lasker premised this holding on 20

U.S.C. 1099b(f), which provides in pertinent part:

Notwithstanding any other provision of law,

any civil action brought by an institution of

higher education seeking accreditation from,

or accredited by, an accrediting agency or

association approved by the Secretary . . .

and involving the denial, withdrawal, or

termination of accreditation of the

institution of higher education, shall be

brought in the appropriate United States

district court.

We review the denial of a motion to remand de novo and place the

burden of persuasion upon the party who insists that federal

jurisdiction obtains. See BIW Deceived v. Local S6, 132 F.3d 824,

831 (1st Cir. 1997).

We appear to be the first appellate court to address this

seldom-used removal statute. The statutory language is

straightforward and the provision's meaning clear: if a civil

action brought by an institution of higher education involves a

denial of accreditation, then federal jurisdiction exists. MSL, by

self-characterization, is an institution of higher education, and

the ABA's withholding of accreditation is the cynosure of its suit.

Thus, to the extent that MSL alleges harms within the accreditation

process and such allegations permeate its complaint section

1099b(f) applies.

The only colorable issue that MSL raises with regard to

remand implicates the constitutionality of section 1099b(f). This,

too, is a question of first impression. For a case properly to

"aris[e] under" federal law, 28 U.S.C. 1331, Congress must confer

federal jurisdiction in the context of a broad statutory framework

within an area susceptible to congressional regulation. In other

words, the jurisdictional grant must be "simply one part of [a]

comprehensive scheme." Verlinden B. V. v. Central Bank of Nigeria,

461 U.S. 480, 496 (1983). MSL contends that section 1099b(f) fails

this test and that Article III does not permit Congress to confer

federal jurisdiction by means of such a freewheeling jurisdictional

statute. See, e.g., The Propellor Genesee Chief v. Fitzhugh, 53

U.S. (12 How.) 443, 452 (1851); Mossman v. Higginson, 4 U.S. (4

Dall.) 12, 13 (1800) (per curiam).

The focus of our inquiry thus becomes whether section

1099b(f)'s grant of jurisdiction occurs within a sufficiently

comprehensive regulatory scheme. We answer this question

affirmatively. Accreditation serves an important national function

because once an institution of higher education becomes accredited

by the DOE or its designated accrediting agency, the institution

becomes eligible for federal student loan monies. See Chicago Sch.

of Automatic Transmissions, Inc. v. Accreditation Alliance of

Career Schs. & Colleges, 44 F.3d 447, 449 (7th Cir. 1994). The

Higher Education Act and the DOE's implementing regulations spin a

sophisticated regulatory web that governs the relationship between

accrediting agencies and accreditation applicants. See, e.g., 34

C.F.R. 602.24, 602.28 (1996) (requiring that accrediting agencies

apply consistent standards and give applicants due process). The

grant of federal jurisdiction over matters involving accreditation

is reasonably related to the efficient operation of that system.

No more is exigible.

To summarize, section 1099b(f)'s grant of federal

jurisdiction occurs within a broad statutory framework, properly

the subject of congressional concern. Accordingly, the statute

comports with Article III. Removal was altogether appropriate.

VI. THE EIGHT INDIVIDUAL DEFENDANTS

When the district court applies the prima facie standard

and grants a motion to dismiss for want of in personam jurisdiction

without conducting an evidentiary hearing to resolve disputed

jurisdictional facts, the court of appeals reviews its ruling de

novo. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d

138, 147 (1st Cir. 1995). The lower court's decision to dismiss

MSL's action as to the Committee members defendants Hasl, Moeser,

Ryan, Schneider, Sowle, Walwer, and Yu falls within this sphere.

So does the order dismissing the action against the last of the

Eight Individual Defendants, Henry Ramsey, Jr. (the chair of the

Section). Withal, Ramsey's situation requires a more extended

analysis.

The factual basis for MSL's jurisdictional initiative

derives predominantly from three events that occurred in 1993.

According to the complaint, Hasl, Moeser, Schneider, and Ramsey met

in Boston on February 6. The quartet allegedly "used false

statements and charges" the nature of which is not disclosed in

order "to try to bring their plan of non-accreditation of MSL to

fruition." A review of the parties' proffers reveals, however,

that the only MSL-related business transacted at this meeting

involved a decision to delay the site visit by one month. MSL next

alludes to a Committee meeting that took place on June 23 in

Brooklyn, New York. The Eight Individual Defendants all attended

this session and participated in the denial of MSL's application

for accreditation. The Eight Individual Defendants, save Ramsey,

also attended a retreat that took place on Nantucket Island, in

Massachusetts, from June 24-27. MSL asserts conclusorily that the

Committee "finalized" the denial of its application during this

period, but the record flatly contradicts this assertion: the

retreat participants all maintain (to quote from typical language

appearing in their several affidavits) that "[w]hile in Nantucket,

the Committee did not take up any agenda item concerning MSL, as

all matters concerning MSL had been concluded in Brooklyn, New

York, on June 23, 1993." MSL proffers no clear evidence showing

that these statements are inaccurate.

On a motion to dismiss for want of in personamjurisdiction, Fed. R. Civ. P. 12(b)(2), the plaintiff ultimately

bears the burden of persuading the court that jurisdiction exists.

See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189

(1936); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st

Cir. 1997). In conducting the requisite analysis under the prima

facie standard, we take specific facts affirmatively alleged by the

plaintiff as true (whether or not disputed) and construe them in

the light most congenial to the plaintiff's jurisdictional claim.

See Ticketmaster, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994).

We then add to the mix facts put forward by the defendants, to the

extent that they are uncontradicted. See, e.g., Topp v. Compair

Inc., 814 F.2d 830, 836-37 (1st Cir. 1987). We caution that,

despite the liberality of this approach, the law does not require

us struthiously to "credit conclusory allegations or draw

farfetched inferences." Ticketmaster-N.Y., 26 F.3d at 203.

A district court may exercise authority over a defendant

by virtue of either general or specific jurisdiction. SeeDonatelli v. National Hockey League, 893 F.2d 459, 462-63 (1st

Cir. 1990). General jurisdiction "exists when the litigation is

not directly founded on the defendant's forum-based contacts, but

the defendant has nevertheless engaged in continuous and systematic

activity, unrelated to the suit, in the forum state." United

Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d

1080, 1088 (1st Cir. 1992). MSL does not argue, and we find no

facts to suggest, that any of the Eight Individual Defendants can

be brought before a Massachusetts court on a general jurisdiction

theory.

In the absence of general jurisdiction, a court's power

depends upon the existence of specific jurisdiction. Specific

jurisdiction exists when there is a demonstrable nexus between a

plaintiff's claims and a defendant's forum-based activities, such

as when the litigation itself is founded directly on those

activities. See Donatelli, 893 F.2d at 462. In this instance, MSL

asserts specific jurisdiction under Mass. Gen. L. ch. 223A. 3

(1992). MSL cites variously to section 3(a), which extends

"personal jurisdiction over a person, who acts directly or by an

agent, as to a cause of action in law or equity arising from the

person's . . . transacting any business" in Massachusetts, and to

section 3(c), which authorizes personal jurisdiction over a non-

resident who causes "tortious injury" by an "act or omission in

this Commonwealth."

We need not pause to consider the particulars of the

Massachusetts long-arm statute. Even if that statute, correctly

applied, would purport to grant jurisdiction over the Eight

Individual Defendants a matter of state law on which we take no

view MSL still would have to demonstrate that "the exercise of

jurisdiction pursuant to that statute comports with the strictures

of the Constitution." Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.

1994). In the personal jurisdiction context, we have characterized

compliance with the Constitution as implicating "three distinct

components, namely, relatedness, purposeful availment (sometimes

called 'minimum contacts'), and reasonableness." Foster-Miller, 46

F.3d at 144. We analyze the situations of the Eight Individuals

Defendants through this prism.

In order for the extension of personal jurisdiction to

survive constitutional scrutiny, a claim must "arise out of, or be

related to, the defendant's in-forum activities." Ticketmaster-

N.Y., 26 F.3d at 206. We have approached the relatedness inquiry

with slightly different emphases when the plaintiff asserts a

contract claim then when she asserts a tort claim: if a contract

claim, our stereotypical inquiry tends to ask whether the

defendant's forum-based activities are "instrumental in the

formation of the contract," Hahn v. Vermont Law Sch., 698 F.2d 48,

51 (1st Cir. 1983); if a tort claim, we customarily look to whether

the plaintiff has established "cause in fact (i.e., the injury

would not have occurred 'but for' the defendant's forum-state

activity) and legal cause (i.e., the defendant's in-state conduct

gave birth to the cause of action)." United Elec., Radio & Mach.

Workers, 960 F.2d at 1089; see also Ticketmaster-N.Y., 26 F.3d at

207 (noting that the relatedness inquiry is intended in part to

"ensure[] that the element of causation remains in the forefront of

the due process investigation"). In respect to the Eight

Individual Defendants, MSL presents only tort claims before us,

and thus our relatedness analysis thus focuses on causation. We

find this element clearly lacking as regards the seven Committee

members.

The only activities undertaken in Massachusetts by any of

these seven persons that possibly could relate to MSL's state-law

claims consists of the participation of three of them in the Boston

meeting and the attendance of all seven at the Nantucket retreat.

MSL's insinuations notwithstanding, the particularized facts that

were before the district court show conclusively that both of these

activities were benign: the Boston meeting dealt with MSL in a

purely peripheral sense (doing no more than to delay the site visit

to MSL's facility by one month), and the retreat did not deal with

MSL at all.

MSL also argues that two letters written to it by James

White, an ABA consultant, are sufficient to extend personal

jurisdiction over the Eight Individual Defendants. One of these

communiques informed MSL of the Committee's decision not to grant

MSL provisional approval; contemporaneous copies were sent by White

to the seven Committee members. The other letter informed MSL of

the Council's decision to reject its application for a variance

pursuant to Standard 802 and to deny its accreditation appeal.

Contemporaneous copies of this letter were sent to defendants Hasl,

Moeser, and Ramsey.

These missives do not carry weight in the jurisdictional

calculus vis--vis the Eight Individual Defendants. We cannot

subscribe to a transitive view of minimum contacts, which would

hold that a letter from A to B that reports on C's actions confers

personal jurisdiction over C in B's home state based on those

actions. Without a more substantial nexus, the extension of such

jurisdiction would violate due process, for the connection between

C's actions in an extra-forum jurisdiction and B's home state is

too attenuated to satisfy the relatedness requirement. SeeHelicoperos Nacionales de Colombia v. Hall, 466 U.S. 408, 417

(1984). Nor do we think that the case for the application of such

a novel rule is bolstered by the mere fact that A (acting, for

aught that appears, on his own initiative) chooses to inform C of

his communication with B by mailing her a copy of it.

Although MSL does not assert in so many words that the

Committee's denial of accreditation at the Brooklyn meeting

constitutes conduct directed into Massachusetts sufficient to

bestow personal jurisdiction, it intimates as much. We therefore

address this possibility. The transmission of facts or information

into Massachusetts via telephone or mail would of course constitute

evidence of a jurisdictional contact directed into the forum state,

see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985), but

we must determine whether the Committee's decision to deny

accreditation a decision that had effects in Massachusetts

qualifies as such a contact.

We have wrestled before with this issue of whether the

in-forum effects of extra-forum activities suffice to constitute

minimum contacts and have found in the negative. For example, in

Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995), we recounted

Kowalski v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7 (1st

Cir. 1986), and noted that in Kowalski "we rejected the plaintiff's

contention that, because the 'effects' of the firm's negligence

were felt in New Hampshire, the law firm had caused an injury there

by conduct directed at that forum." Sawtelle, 70 F.3d at 1390.

Just as the New Hampshire effects of Massachusetts negligence,

without more, could not sustain an action in New Hampshire against

the negligent actor, see Kowalski, 787 F.2d at 11, so too the

Massachusetts effects of the Eight Individual Defendants' New York

actions, without more, fail to sustain an action in a Massachusetts

court. Accord Sawtelle, 70 F.3d at 1394 (holding that New

Hampshire effects of non-forum negligence, without more, are

insufficient to support personal jurisdiction).

Ramsey is in a slightly different position. Although

what we have just discussed pertains to him after all, he

participated in both the Boston and Brooklyn meetings it is not

conclusive because the record reflects that, unlike his seven

cohorts, he had other contacts which might suffice to clear the

relatedness hurdle. Ramsey wrote a memorandum to White that

memorialized a conversation between Ramsey and MSL's Dean Velvel.

Ramsey reported that during this conversation Velvel attempted to

couple MSL's effort to obtain waivers under Standard 802 with MSL's

plan to persuade the DOE to jettison the ABA as the national

accrediting agency for law schools. The memorandum itself

indicates that Ramsey sent a copy to Velvel, presumably at MSL, and

the inclusion of Velvel's Andover telephone number indicates that

Velvel was in Massachusetts when he and Ramsey spoke. Although the

contents of this memorandum hardly flatter MSL, the memorandum

constitutes some indication that Ramsey engaged in conduct that

might bear upon the relatedness inquiry.

Because of our doubts about the outcome of the

relatedness inquiry vis--vis Ramsey, we turn to the question of

whether Ramsey's contacts with Massachusetts "represent a

purposeful availment of the privilege of conducting activities in

[Massachusetts], thereby invoking the benefits and protections of

[its] laws and making the defendant's involuntary presence before

[the Massachusetts] court foreseeable." Pritzker, 42 F.3d at 61

(internal quotation marks and citation omitted).

Even though the record suggests that Ramsey participated

in a telephone call with Dean Velvel concerning MSL's accreditation

while Velvel was in Massachusetts, it is uninformative as to who

initiated the call. In either case, we believe that this solitary

telephone conversation and the subsequent mailing of a copy of

Ramsey's memorandum, even when combined with Ramsey's participation

in the Boston meeting, are insufficient to establish purposeful

availment. See, e.g., Aylward v. Fleet Bank, 122 F.3d 616, 618

(8th Cir. 1997) (holding that three telephone calls and one letter

within a seven month period were insufficient to support the

exercise of personal jurisdiction when the alleged injury did not

arise directly from the contacts); U.S.S. Yachts, Inc. v. Ocean

Yachts, Inc., 894 F.2d 9, 11 (1st Cir. 1990) (holding that three

letters sent to Puerto Rico were insufficient to support the

exercise of personal jurisdiction in that venue). Put another way,

based on these exiguous contacts Ramsey could not reasonably have

foreseen being haled into a Massachusetts court to answer

allegations of a wide-ranging conspiracy. We therefore conclude

that the extension of personal jurisdiction to him would violate

his due process rights.

In a last-ditch effort to stem the tide, MSL laments that

it did not have the opportunity to engage in jurisdictional

discovery. The docket contains no evidence, however, that MSL ever

made a motion or other documented request for jurisdictional

discovery in the district court. Therefore, in accordance with

firmly settled principles, we will not entertain its plaint now.

See Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 964-

65 (1st Cir. 1997).

We have said enough on this score. Because MSL neither

alleged nor proffered sufficient facts to permit the exercise of

jurisdiction over the Eight Individual Defendants, the district

court did not err when it granted their motion to dismiss. SeeFed. R. Civ. P. 12(b)(2).

VII. THE ABA AND THE AALS

The ABA and the AALS each present multiple grounds in

support of the district court's grant of summary judgment. The

most striking of these is the defense of res judicata. In its

present iteration, this defense turns on whether the judgment

entered in the previous litigation between the parties (MSL I) bars

the plaintiff from maintaining the instant action against these two

institutional defendants.

Where, as here, both the potentially precluding suit and

the potentially precluded suit were litigated in federal courts,

federal law governs the res judicata effect of the prior judgment.

See Gonzalez v. Banco Central Corp., 27 F.3d 751, 755 (1st Cir.

1994). The elements of federal res judicata are "(1) a final

judgment on the merits in an earlier suit, (2) sufficient

identicality between the causes of action asserted in the earlier

and later suits, and (3) sufficient identicality between the

parties in the two suits." Id. In this instance, the first and

third tines of the test are foregone conclusions. Because the

Supreme Court denied certiorari after the Third Circuit affirmed

the district court's entry of final judgment in MSL I, the finality

of the earlier judgment cannot be gainsaid. By like token, MSL,

the ABA, and the AALS were parties to the precursor litigation and

thus satisfy the identicality requirement. The question, then, is

whether the state-law claims that MSL now advances against the ABA

and the AALS are sufficiently related to the causes of action

asserted in MSL I to warrant claim preclusion.

We begin with bedrock. To bring claim preclusion into

play, a cause of action need not be a clone of the earlier cause of

action. "Under res judicata, a final judgment on the merits of an

action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action." Allenv. McCurry, 449 U.S. 90, 94 (1980). We have adopted a

transactional approach to determine whether causes of action are

sufficiently related to support a res judicata defense. See Kalev. Combined Ins. Co., 924 F.2d 1161, 1166 (1st Cir. 1991). "Under

this approach, a cause of action is defined as a set of facts which

can be characterized as a single transaction or series of related

transactions." Apparel Art Int'l, Inc. v. Amertex Enters., Ltd.,

48 F.3d 576, 583 (1st Cir. 1995). This boils down to whether the

causes of action arise out of a common nucleus of operative facts.

See Gonzalez, 27 F.3d at 755. In mounting this inquiry, we

routinely ask "whether the facts are related in time, space,

origin, or motivation, whether they form a convenient trial unit,

and whether their treatment as a unit conforms to the parties'

expectations." Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6

(1st Cir. 1992) (quoting Restatement (Second) of Judgments 24

(1982)).

These principles are dispositive here. MSL's pending

claims, though rooted in Massachusetts law, plainly arise from the

same set of operative facts as its earlier antitrust claims.

Although MSL describes the later claims more colloquially and

dresses them in different legal raiment, the conduct that

underbraces the two sets of claims is strikingly similar in time,

space, origin, and motivation. Both suits stem from MSL's failed

efforts in 1992 and 1993 to receive ABA accreditation. In both

cases, MSL alleges that the ABA and the AALS orchestrated a long-

term scheme to accumulate power and money and a short-term scheme

to deny accreditation unjustly to MSL because MSL dared to oppose

their hegemony.

In addition to their common heritage, the two suits also

are compatible in a practical sense. It is settled "that where

the witnesses or proof needed in the second action overlap

substantially with those used in the first action, the second

action should ordinarily be precluded." Porn v. National Grange

Mut. Ins. Co., 93 F.3d 31, 36 (1st Cir. 1996). Because neither

MSL's antitrust claims nor its state-law claims survived summary

disposition, we must make an informed prophecy as to what witnesses

would have appeared and what proof would have emerged had the two

cases been tried. Here, the two suits' factual underpinnings are

the same. This unmistakable congruence strongly suggests that the

same witnesses largely ABA, AALS, and MSL personnel and

information the evolution of the ABA accreditation procedures and

the details of the MSL accreditation effort would have been

necessary to resolve both cases. This substantial imbrication

makes it apparent that the two cases would have formed a convenient

trial unit and argues powerfully for claim preclusion. See id. at

34; see also King v. Uncon Oil Co., 117 F.3d 443, 445 (10th Cir.

1997).

To the extent that reasonable expectations, objectively

assayed, enter into the res judicata calculus, they augur here

toward the same conclusion. In the first place, since the two sets

of claims arise in the same time frame out of similar facts, "one

would reasonably expect them to be brought together," Porn, 93 F.3d

at 37. In the second place, a party may be more readily presumed

to expect that a court will treat multiple causes of action as a

single trial unit when the plaintiff has all the facts necessary to

bring the second claim at its disposal before or during the

pendency of the first. MSL does not identify any significant facts

that were not within its ken before the antitrust action reached

its climax. We therefore conclude that the application of res

judicata is an entirely predictable consequence of MSL's unilateral

decision to split its claim.

Of course, res judicata will not attach if the claim

asserted in the second suit could not have been asserted in the

first. See In re Newport Harbor Assocs., 589 F.2d 20, 24 (1st Cir.

1978). In an effort to avoid looming defeat, MSL tries to squeeze

through this loophole by questioning whether it could have brought

the instant claims in the Eastern District of Pennsylvania.

Insofar as this question relates to MSL's pursuit of the ABA and

the AALS, it is easily answered.

Under 28 U.S.C. 1367(a), a federal court that exercises

federal question jurisdiction over a claim may also assert

supplemental jurisdiction over all state-law claims that arise from

the same operative facts. See BIW Deceived, 132 F.3d at 833;

Rodriguez v. Doral Mortgage Co., 57 F.3d 1168, 1175 (1st Cir.

1995). As we already have determined, the facts upon which MSL

grounded its antitrust action concern MSL's efforts to receive ABA

accreditation between 1992 and 1993. This same trove of facts also

provides the basis for MSL's state-law claims against the ABA and

the AALS. As a result, had MSL ventured to bring its current

compendium of claims before the Pennsylvania federal district court

as part and parcel of MSL I, that court could have entertained them

in conjunction with the antitrust action then before it. See 28

U.S.C. 1367.

Despite the fact that the Court has ceded the federal

judiciary broad leeway to "look to the common law or to the

policies supporting res judicata . . . in assessing the preclusive

effect of decisions of other federal courts," Allen, 449 U.S. at

96, MSL makes one last effort to undercut the district court's

determination. Res judicata cannot be applied against a plaintiff

unless the plaintiff had a full and fair opportunity to litigate

all its claims in the original action. See id. at 90; Kale, 924

F.2d at 1168. Citing a series of adverse discovery rulings, MSL

argues that it did not receive such an opportunity in the Eastern

District of Pennsylvania.

The Court has not yet addressed the standard for

determining the existence vel non of a full and fair opportunity in

regard to a prior federal judgment. The standard, however, is

quite permissive as it pertains to prior state court judgments. To

meet this standard, a state court judgment need only "satisfy the

minimal procedural requirements of the Fourteenth Amendment's Due

Process Clause." Kremer v. Chemical Constr. Corp., 456 U.S. 461,

481 (1982). We do not envision a significantly less latitudinarian

test for federal court judgments. We hold, therefore, that as long

as a prior federal court judgment is procured in a manner that

satisfies due process concerns, the requisite "full and fair

opportunity" existed.

Here, MSL points to its numerous failed efforts to obtain

additional discovery in the Eastern District of Pennsylvania and

asseverates that draconian restrictions deprived it of an adequate

chance to litigate its claims in MSL I. These allegations of

discovery error are reheated for our consumption. They previously

were reviewed and rejected by the Third Circuit, see MSL I, 107

F.3d at 1033-34, and we see no reason to revisit that

determination.

At any rate, a full and fair opportunity to litigate

cannot be equated with a license to do as a party pleases. The

adjudicative process operates pursuant to rules, and an opportunity

to litigate is no less "full" or "fair" simply because the forum

court enforces conventional limitations on pretrial discovery. By

any conceivable criterion, MSL had its full and fair opportunity to

assert, in the Pennsylvania proceeding, the panoply of procedural

and substantive rights guaranteed it by federal law. Its first

action therefore furnishes a proper predicate for the application

of res judicata in its second action.

In this instance, all roads lead to Rome. MSL had an

appropriate opportunity to litigate its first set of claims, and

conveniently could have brought the second set as part of the same

proceeding. Its failure to do so dooms the instant action since

MSL's two sets of allegations arise from a common nucleus of

operative facts and fit together tongue and groove. We conclude

that, as a consequence of this road not taken, res judicata

precludes MSL's state-law claims against the ABA and the AALS.

Accordingly, we affirm the district court's grant of summary

judgment in favor of these two institutional defendants.

VIII. NEW ENGLAND SCHOOL OF LAW

The district court granted NESL's motion to dismiss,

ruling that the complaint failed to state a claim against NESL upon

which relief could be granted. See Fed. R. Civ. P. 12(b)(6). We

review this determination de novo, accept all well-pleaded facts as

true, and draw all reasonable inferences in favor of the plaintiff.

See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st

Cir. 1989). Notwithstanding the generous contours of this

standard, a reviewing court need not "swallow plaintiff's invective

hook, line, and sinker; bald assertions unsupportable conclusions,

periphrastic circumlocutions, and the like need not be credited."

Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

MSL's briefing reads as if it were seeking to hold NESL

liable for civil conspiracy. Nevertheless, its complaint aims the

conspiracy charge elsewhere and the sufficiency of a complaint

ordinarily should be tested by examining the claims that are stated

therein rather than by weighing afterthought claims that are only

mentioned in a legal brief. See Beddall v. State St. Bank & Trust

Co., F.3d , (1st Cir. 1998) [No. 97-1666, slip op. at

20-21]; Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir. 1996);

Litton Indus., Inc. v. Colon, 587 F.2d 70, 74 (1st Cir. 1978). As

MSL's complaint does not level a conspiracy charge against NESL, we

limit our inquiry to the claims that MSL saw fit to plead.

MSL's complaint asserts two causes of action against

NESL: tortious misrepresentation and violations of the

Massachusetts statute governing unfair and deceptive trade

practices (commonly known as Chapter 93A). The complaint

predicates these causes of action on an exchange of correspondence

between NESL officials (specifically, James Lawton, the chair of

NESL's board of trustees, and Ellen Wayne, NESL's placement

director) and the ABA's consultant, James White. We catalog these

four pieces of correspondence.

Lawton wrote to White on January 2, 1990, stating in

pertinent part:

The chairman of the Massachusetts Board

of Regents is former U.S. Senator Paul Tsongas

and he is for all intents and purposes the

"principal" in the Massachusetts School of Law

at Andover. Mr. Tsongas has the solid support

of the Boston Globe and the Board of Regents

are under his complete control at this time.

My guess is that any other, new or

competing law schools, which may come into

existence will not receive support from the

Regents who are a rigidly controlled group of

Dukakis loyalists who will only do what they

are told by the present administration under

Tsongas and [Governor] Dukakis.

Later that year, Wayne informed White that Massachusetts

authorities had authorized MSL to award J.D. degrees, and that its

graduates henceforth could sit for the Massachusetts bar. This

missive, dated June 19, 1990, also mentioned that MSL had requested

and received a table at a fair sponsored by the Northeast

Association of Pre-Law Advisors (NAPLA). Wayne reported that

NAPLA's by-laws had compelled approval of MSL's request, but that

the NAPLA board of directors would amend the by-laws to restrict

participation in subsequent programs to "ABA approved law

school[s]." The complaint does not allege that NAPLA excluded MSL

from any subsequent events.

Eight days later, White wrote to Lawton and solicited his

opinion as to the possibility of convincing the Massachusetts

Supreme Judicial Court (SJC) to amend its rules and require

graduation from an ABA-accredited law school as a prerequisite to

taking the Massachusetts bar examination. Lawton's response, dated

July 17, 1990, indicated his approbation and recommended that

members of the bar petition for such an amendment. The complaint

does not allege that such a request was ever made or that the SJC

revised its rules in the desired manner.

The first letter from Lawton to White is plainly

inaccurate insofar as it proclaims a Tsongas/MSL connection.

Senator Tsongas, who had ties to a different unaccredited law

school, had none with MSL. MSL does not assert that the first

letter contains any other inaccuracies and does not point to any

misstatements in the remaining three epistles.

Against this mise-en-scne, we turn to MSL's claim of

tortious misrepresentation. This strikes us as something of a

misnomer (our canvass of Massachusetts case law does not reveal a

single articulation of the elements of a particularized cause of

action for tortious misrepresentation), but in all events,

Massachusetts jurisprudence recognizes causes of action for both

fraudulent misrepresentation and negligent misrepresentation. See,

e.g., Craig v. Everett M. Brooks Co., 222 N.E.2d 752, 753 (Mass.

1967) (fraudulent misrepresentation); NYCAL Corp. v. KPMG Peat

Marwick, 688 N.E.2d 1368, 1371 (Mass. 1998) (negligent

misrepresentation). MSL's complaint does not plead this claim with

sufficient particularity to support a charge of fraud, see Fed.

R. Civ. P. 9(b), and thus, we interpret the complaint as an attempt

to articulate a claim for negligent misrepresentation. The

elements of such a cause of action are that the defendant falsely

represented a past or existing material fact without any reasonable

basis for thinking it to be true; that he intended to euchre the

plaintiff into relying on the representation; that the plaintiff,

unaware of the representation's falsity, justifiably relied on it;

and that the plaintiff suffered harm due to his reliance. See 37

Am. Jur. 2d, Fraud and Deceit 12 (1968).

The claim deserves short shrift. To be sure, the

comments about Senator Tsongas amount to a misrepresentation, but

MSL does not plead that it relied on that misrepresentation to its

detriment, and such reliance cannot plausibly be inferred from the

complaint's other averments. The general rule is that, without

this necessary element, there can be no recovery for negligent

misrepresentation under Massachusetts law. See Romanoff v. Balcom,

339 N.E.2d 927, 927 (Mass. App. Ct. 1976).

There is an exception to this rule. In the absence of

detrimental reliance, a party still may be held liable under

Massachusetts law for misrepresentation of information negligently

supplied for the guidance of others. See Fox v. F & J Gattozzi

Corp., 672 N.E.2d 547, 551 (Mass. App. Ct. 1996) (stating that if

a defendant "in the course of his business . . . supplies false

information for the guidance of others in their business

transactions," he "is subject to liability for pecuniary loss

caused to [third persons] by [the recipient's] justifiable reliance

upon the information, if he fails to exercise reasonable care or

competence in obtaining or communicating the information") (quoting

Restatement (Second) Torts 552(a) (1977)).

MSL's claim for tortious misrepresentation fails to

qualify for this exception. Even if we assume that Lawton's first

letter to White occurred in the course of a "business transaction"

a fact that MSL does not allege MSL pleads neither that it (or

anyone else, for that matter) relied upon Lawton's faux pas nor

that it suffered any harm as a result of the transmittal of the

Tsongas-related (mis)information. Hence, the district court did

not err in granting NESL's motion to dismiss the tortious

misrepresentation count.

We next engage MSL's Chapter 93A claim for "unfair and

deceptive acts." Mass. Gen. Laws ch. 93A, 2. By their nature,

Chapter 93A claims tend to be case-specific. Their general meter,

however, is that the defendant's conduct must be not only wrong,

but also egregiously wrong and this standard calls for

determinations of egregiousness well beyond what is required for

most common law claims. See Whitinsville Plaza, Inc. v. Kotseas,

390 N.E.2d 243, 251 (Mass. 1979). To quote a by-now-familiar

formulation, "the objectionable conduct must attain a level of

rascality that would raise an eyebrow of someone inured to the

rough and tumble of the world of commerce." Levings v. Forbes &

Wallace, Inc., 396 N.E.2d 149, 153 (Mass. App. Ct. 1979).

MSL's complaint is inscrutable as to the precise nature

of its Chapter 93A claim and its briefing is not very helpful on

this score. Its complaint attributes nothing to NESL beyond the

latter's role in the exchange of correspondence described above.

MSL apparently means to asseverate that publication of the

statements contained in the exchange of correspondence defamed or

otherwise damaged it and thus transgressed Chapter 93A. This

asseveration cannot survive scrutiny.

The SJC recently has held that "where allegedly

defamatory statements do not support a cause of action for

defamation, they also do not support a cause of action under

[Chapter] 93A." Dulgarian v. Stone, 652 N.E.2d 603, 609 (Mass.

1995). Truth is an absolute defense to a defamation action under

Massachusetts law, see Bander v. Metropolitan Life Ins. Co., 47

N.E.2d 595, 598 (Mass. 1943), and MSL therefore must demonstrate

that NESL published "a false and defamatory written communication

of and concerning the plaintiff." McAvoy v. Shufrin, 518 N.E.2d

513, 517 (Mass. 1988). As previously noted, the only false

statement ascribed to any NESL representative concerns Senator

Tsongas's alleged patronage of MSL.

We next consider if that statement can form the basis for

a claim of defamation by MSL. Whether a statement is reasonably

susceptible of a defamatory meaning is a question of law for the

court. See Foley v. Lowell Sun Pub. Co., 533 N.E.2d 196, 197

(Mass. 1989). For a communication to qualify as defamatory, "[t]he

test is, whether, in the circumstances, the writing discredits the

plaintiff in the minds of any considerable and respectable class in

the community." Smith v. Suburban Restaurants, Inc., 373 N.E.2d

215, 217 (Mass. 1978). The core question, therefore, is not

whether Lawton's demonstrated falsehood discredits somebody it

plainly denigrates the late senator but whether it significantly

discredits MSL. See New Eng. Tractor-Trailer Training, Inc. v.

Globe Newspaper Co., 480 N.E.2d 1005, 1007 (Mass. 1985).

In our estimation, the misstatement contained in Lawton's

January 2 letter does not sink to this level. The senator enjoyed

an enviable reputation as a public servant of the highest

integrity. MSL has failed utterly to suggest how any educational

institution could be defamed by attributing to it a connection with

him. Absent such a link, no action lies. See, e.g., Schwanbeck v.

Federal-Mogul Corp., 578 N.E.2d 789, 804 (Mass. App. Ct. 1991)

(explaining that false statements must have adverse consequences

for a plaintiff in order to be actionable under Chapter 93A).

Thus, the Tsongas-related comment, though untrue, is not defamatory

of and concerning MSL.

Nor does MSL's complaint allege any other cognizable

basis for Chapter 93A liability on NESL's part. The four items of

correspondence hint that NESL did not wish MSL well, but none of

the matters which its representatives discussed with White suggest

activities so scurrilous as to trigger liability under Chapter 93A.

Although we understand that a Chapter 93A violation need not rest

on an independent common law tort, see Massachusetts Farm Bureau

Fed'n, Inc. v. Blue Cross, Inc., 532 N.E.2d 660, 664 (Mass. 1989),

the conduct must at least come within shouting distance of some

established concept of unfairness. See Gooley v. Mobil Oil Corp.,

851 F.2d 513, 515-16 (1st Cir. 1988).

To sum up, even if Lawton and Wayne, on NESL's behalf,

participated in activities of the kind adumbrated by their

correspondence, such activities, though hostile to MSL and inimical

to its interests, are not "so seriously deceptive and harmful" as

to permit recovery under Chapter 93A. Zayre Corp. v. Computer Sys.

of Am., Inc., 511 N.E.2d 23, 30 n.23 (Mass. App. Ct. 1987).

Indeed, NESL's suspected (but unproven and unalleged) "actions"

e.g., asking NAPLA to amend its by-laws or petitioning the SJC to

revise its rules do not abridge any legal duty or bedrock concept

of unfairness, and are not so "unethical, oppressive, or

unscrupulous" as to be actionable under Chapter 93A. PMP Assocs.,

Inc. v. Globe Newspaper Co., 321 N.E.2d 915, 917 (Mass. 1975)

(citation and internal quotation marks omitted). What is more, MSL

fails to allege how NESL's involvement in these activities actually

caused any cognizable economic harm to it. In itself, this is a

fatal flaw. See Zayre Corp., 511 N.E.2d at 30; see also Mass. Gen.

Laws ch. 93A, 11 (explaining that, in a Chapter 93A claim, the

complainant must show that she "suffer[ed] a loss of money or

property, real or personal, as a result of the use . . . of an

unfair method of competition or an unfair or deceptive act or

practice").

That ends the matter. Because MSL has not advanced any

sound basis on which NESL could be held liable either for negligent

misrepresentation or for transgressing Chapter 93A, we uphold Judge

Lasker's order granting NESL's motion to dismiss.

IX. THE SIX INDIVIDUAL DEFENDANTS

We need not linger long over MSL's claims against the Six

Individual Defendants. This sextet comprises the ABA's consultant

(White), plus the five members of the site-visit team (Garcia-

Pedrosa, Nahstoll, Smith, Strickland, and Winograd). Judge Lasker

dismissed MSL's breach of contract claim against these persons

under Rule 12(b)(6) and entered summary judgment in their favor on

MSL's remaining claims.

Our review is swift because "[w]e have steadfastly deemed

waived issues raised on appeal in a perfunctory manner, not

accompanied by developed argumentation." United States v.

Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997). An issue lacks

developed argumentation if the appellant merely mentions it as "a

possible argument in the most skeletal way, leaving the court to do

counsel's work." United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990).

This is such a case. MSL's brief focuses mainly on the

ABA and does not make any real attempt to construct a reasoned

argument that would call into legitimate question the district

court's rulings with regard to the Six Individual Defendants. Of

course, with a record appendix that boasts more than 6,500 pages,

MSL has furnished a welter of paper, but it has not arrayed these

plethoric evidentiary materials in any systematic way vis--vis

these defendants. Instead, MSL strives to bind together several

mounds of proof, quasi-proof, and unsubstantiated allegations

together with desultory rhetoric. More is required to pass muster

under Bongiorno and Zannino. Accordingly, MSL has forfeited any

objection to the lower court's entry of judgment in favor of the

Six Individual Defendants.

X. THE RULE 56(f) MOTION

Fed. R. Civ. P. 56(f) provides:

Should it appear from the affidavits of a

party opposing [a motion for summary judgment]

that the party cannot for reasons stated

present by affidavit facts essential to

justify the party's opposition, the court may

refuse the application for judgment or may

order a continuance to permit affidavits to be

obtained or depositions to be taken or

discovery to be had or may make such other

order as is just.

MSL contends that the district court erroneously denied its motion

for further discovery under Rule 56(f). This contention lacks

force.

We first set the stage. The ABA and the Six Individual

Defendants moved for dismissal on March 29, 1996. The AALS filed

a motion for summary judgment on the same date. MSL opposed both

motions and the court heard oral arguments on June 7. Three weeks

later, while the district court still had the motions under

advisement, MSL moved to defer their adjudication until it had

obtained more discovery. After conferring with all counsel, the

district court denied the Rule 56(f) motion on August 28. On

September 26, 1996, the AALS filed a supplemental motion for

summary judgment. Four days later, the ABA and the Six Individual

Defendants filed a joint motion for summary judgment. MSL again

filed oppositions, but did not renew its Rule 56(f) motion. The

district court granted the AALS's motion for brevis disposition on

March 3, 1997, and granted the parallel motion brought on behalf

of the ABA and the Six Individual Defendants on May 8, 1997.

In this venue, MSL ardently embraces Rule 56(f). It

contends that the district court acted improvidently in refusing

the requested continuance and proceeding to rule upon the

defendants' dispositive motions.

To savor the balm of Rule 56(f), a party must act in a

timely fashion. See Resolution Trust Corp. v. North Bridge

Assocs., Inc., 22 F.3d 1198, 1204 (1st Cir. 1994). Moreover, the

moving papers must contain a proffer which, at a bare minimum,

articulates a plausible basis for the movant's belief that

previously undisclosed or undocumented facts exist, that those

facts can be secured by further discovery, and that, if obtained,

there is some credible prospect that the new evidence will create

a trialworthy issue. See Mattoon v. City of Pittsfield, 980 F.2d

1, 7-8 (1st Cir. 1992); Paterson-Leitch Co. v. Massachusetts Mun.

Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988). Finally,

the motion must set forth good cause to explain the movant's

failure to have conducted the desired discovery at an earlier date.

See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 584 (1st

Cir. 1994); Resolution Trust, 22 F.3d at 1205.

We review the denial of relief under Rule 56(f) for abuse

of discretion. See Sheinkopf v. Stone, 927 F.2d 1259, 1263 (1st

Cir. 1991). We discern no abuse here. To the contrary, the

record reveals that MSL's attempt to invoke Rule 56(f) was both too

late and too little.

We deal first with the temporal aspect. It is firmly

established that a Rule 56(f) motion must be made within a

reasonable time following the receipt of a motion for summary

judgment. See Resolution Trust, 22 F.3d at 1204. This means that

a Rule 56(f) motion normally should precede or accompany the

response to the summary judgment motion or follow as soon as

practicable thereafter. See Paterson-Leitch, 840 F.2d at 988. Of

course, there may be extenuating circumstances under which "a party

opposing a dispositive motion may not realize until the initial

round of oral argument that he requires additional discovery time."

Id. But this is an outer limit, and a Rule 56(f) extension request

made after the conclusion of oral argument on a summary judgment

motion ordinarily comes too late. See C.B. Trucking, Inc. v.

Waste Mgmt., Inc., F.3d , (1st Cir. 1998) [No. 96-2347,

slip op. at 8 n.2]; Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520

(9th Cir. 1990); Dowling v. City of Philadelphia, 855 F.2d 136, 140

(3d Cir. 1988); Pfeil v. Rogers, 757 F.2d 850, 856-57 (7th Cir.

1985).

Measured against these temporal benchmarks, MSL's motion

which was not made until three weeks after oral argument on the

defendants' initial set of dispositive motions was out of time.

Nor do sufficiently excusatory circumstances exist. At the time it

instituted this action, MSL had been at war with the ABA and the

AALS for roughly two years. It had received amplitudinous

discovery in the antitrust case and knew or should have known

immediately upon receipt of the defendants' dispositive motions

whether it needed more information to oppose them. There is no

readily apparent reason why MSL procrastinated in deploying Rule

56(f), and MSL fails to offer any persuasive explanation for the

delay.

Although we could affirm the district court's denial of

Rule 56(f) relief on this basis alone, the ruling also rests on

solid substantive grounds. The plaintiff accompanied its motion

with an affidavit, executed by Dean Velvel, that described the

facts it hoped to unearth through further discovery. By and large,

these facts pertain to the existence and operation of the

ostensible conspiracy between the ABA and the AALS. But MSL did

not suggest below, and does not suggest here, how these new

materials would palliate the force of the ABA's and the AALS's res

judicata defense.

That omission undermines MSL's position. Whatever other

issues originally may have lurked in the penumbra of the

defendants' motions, the stark reality is that MSL's action

founders because it could have raised its state-law claims in MSL

I, but did not do so. No additional discovery can alter that

reality. Thus, the short answer to MSL's protest about truncated

discovery is that, as against the ABA and the AALS, the district

court's refusal to grant a Rule 56(f) continuance was harmless.

Substantively speaking, there is yet another obstacle

blocking MSL's path. A party relying on Rule 56(f) must

demonstrate that he exercised due diligence in pursuing discovery.

See C.B. Trucking, F.3d at [slip op. at 9]; Ayala-Gerena v.

Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996). The

district court denied MSL's motion to remand on January 18, 1996.

Insofar as we can tell, MSL thereafter failed to take steps

reasonably available to it to secure discovery. We explain

briefly.

The District of Massachusetts operates under an

"automatic discovery" paradigm. See Fed. R. Civ. P. 26(a)(1); D.

Mass. Loc. R. 26.2 (1996). The court's local rules provide that

unless otherwise ordered by a judicial officer, a "party must

provide to other parties disclosure of the information and

materials called for by [the automatic discovery rule]" before that

party can initiate further discovery. D. Mass. Loc. R. 26.2(A).

The record contains no evidence that MSL complied with its

automatic discovery responsibilities, that it attempted to initiate

any discovery, or that it sought permission from a judicial officer

to do so. What is more, Judge Lasker issued a scheduling order on

February 28, 1996, in which he admonished all counsel that, if

discovery could not be effectuated consensually, "motions to compel

discovery may be filed in accordance with the provisions of Local

Rule 26.2(C)." MSL never filed any such motion.

We will not paint the lily. Rule 56(f) is designed to

"minister[] to the vigilant, not to those who slumber upon

perceptible rights." Paterson-Leitch, 840 F.2d at 989 n.5

(internal quotation marks and citation omitted). Given its

lethargic approach to discovery, MSL cannot now be heard to

complain about the district court's refusal to stay proceedings on

the summary judgment motions. See Mattoon, 980 F.2d at 8; Hebertv. Wicklund, 744 F.2d 218, 222 (1st Cir. 1984).

To this point, we have focused on the ABA and the AALS.

Nonetheless, the upshot is the same across the board. With regard

to the fourteen individual defendants, the affidavit that

accompanied the Rule 56(f) motion mentions only one Steven Smith

and only mentions him in the most inconsequential manner. The

affidavit does not refer to NESL. Therefore, the record does not

sustain a claim that discoverable materials actually existed that

would have raised a trialworthy issue as to any of these fifteen

defendants.

XI. CONCLUSION

We need go no further. MSL adduces other arguments, but

none of them requires elaboration. It suffices to say that David

does not always best Goliath.

Affirmed.