UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1398
CLAIR INTERNATIONAL, INC.
AND FOREIGN MOTORS WEST, INC.,
Plaintiffs, Appellants,
v.
MERCEDES-BENZ OF NORTH AMERICA, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich and Cyr, Senior Circuit Judges, _____________________
____________________
Richard B. McNamara, with whom Gregory A. Holmes and Stephanie A. ___________________ _________________ ____________
Bray were on brief for appellants. ____
Mark P. Szpak, with whom Peter K. Levitt and Ropes & Gray were on _____________ _______________ ____________
brief for appellee.
____________________
September 5, 1997
____________________
CYR, Senior Circuit Judge. Plaintiffs Clair CYR, Senior Circuit Judge. ________________________
International, Inc. and Foreign Motors West, Inc. appeal from a
district court judgment dismissing their respective claims for
breach of contract and violation of Mass. Gen. Laws ch. 93B
against Mercedes-Benz of North America ("MBNA"), the North
American distribution organization for Mercedes-Benz automobiles.
The central controversy concerns whether the restructuring
effected by MBNA among its franchisees in the Greater Boston area
during the mid-1990s breached its dealership agreement with
plaintiffs-appellants. We affirm the district court judgment.
I I
BACKGROUND BACKGROUND __________
During the early 1990s, MBNA was represented by two
dealerships in the North Shore area of Greater Boston: Auto
Engineering, Inc. ("Auto Engineering"), located in Burlington,
and Gauthier Motors, Inc. ("Gauthier"), located in Salem. Auto
Engineering closed in April 1993,1 leaving Gauthier as the only
MBNA presence on the North Shore. Gauthier, among the older
Mercedes-Benz dealerships in the United States, operated from
what MBNA considered an inadequate facility, a small, outmoded
dealership located in downtown Salem. In early 1993, MBNA
approved a plan for relocating the Gauthier dealership to Route
____________________
1Auto Engineering relocated its dealership without MBNA
authorization on November 2, 1992. See McLane v. Mercedes-Benz ___ ______ _____________
of North America, Inc., 3 F.3d 522, 523 (1st Cir. 1993). As a _______________________
result, Mercedes gave notice of termination. Auto Engineering
then obtained a temporary injunction prohibiting termination
until April 11, 1993, at which time the injunction expired. See ___
id. at 523-24. See infra p. 9. ___ ___ _____
2
128, which would enable it to service the entire North Shore
area. Whereupon, Gauthier began its search for an outside
investor to finance its relocation plan.
Unable to secure a suitable investor, in October 1994
Gauthier decided to sell its dealership outright to Michael
Cantanucci, an experienced automobile dealer who already owned
more than twenty non-MBNA franchises. In due course, Cantanucci
obtained a purchase and sale agreement on a parcel of land along
Route 128, as the site of the proposed new, exclusive MBNA
dealership. After completing a routine "due diligence" check,
which took approximately one month, MBNA approved the franchise
transfer to Cantanucci.
The exclusivity provision was important to MBNA, which
faced increased competition from new luxury automobile lines and
planned to shift to larger, exclusive dealerships in order to
meet the challenge. At the time, moreover, MBNA had no exclusive
dealership in the Greater Boston area, and Mercedes-Benz was
developing several new products, at least one of which, a sports
utility vehicle, was to be sold only at exclusive dealerships.
Upon learning of the proposed location for the
Cantanucci dealership, Herb Chambers, a Mercedes-Benz dealer in
Somerville, Massachusetts, protested to MBNA, claiming that the
proposed Route 128 site was too close to his Somerville
dealership. In December 1994, Chambers brought an action against
MBNA to enjoin construction of its proposed Route 128 dealership.
Although the suit was dismissed in April 1995, six months had
3
elapsed during which Cantanucci had not proceeded with
construction of the new dealership facility due to the Chambers
litigation.
Meanwhile, differences were developing between MBNA and
Cantanucci concerning the proposed new dealership, particularly
the timetable for construction, since MBNA had been without
adequate North Shore representation for approximately two years.
Moreover, during the summer of 1995 Cantanucci had agreed to
acquire a Mercedes dealership in Connecticut, which concerned
MBNA for two reasons. First, MBNA had never dealt with
Cantanucci before, yet suddenly was faced with the prospect that
he could control two MBNA dealerships in New England. Second,
the $10,000,000 investment required for the Connecticut
dealership could leave Cantanucci without adequate financing to
proceed with the North Shore dealership, where MBNA considered an
adequate Mercedes-Benz presence vital.
These concerns were borne out when Cantanucci
approached MBNA for permission to construct a smaller facility on
Route 128, then attempted to renege on the exclusivity provision.
Although Cantanucci later agreed to meet the original terms after
MBNA declined his request, the new permanent facility on Route
128 could not be completed for approximately ten more months, and
Cantanucci declined to open a temporary service facility during
the interim as MBNA had requested.
At this point, with Gauthier running out of operating
capital and MBNA confronting the prospect that there might soon
4
be no Mercedes-Benz presence on the North Shore, MBNA decided to
offer its North Shore dealership to Chambers.
The MBNA decision was based in part on its perceived
need to move quickly, due to the extended period during which the
North Shore had been without a suitable Mercedes-Benz presence,
especially in light of the competition from new luxury automobile
lines being marketed at large, exclusive dealerships. Further,
MBNA considered Chambers the Mercedes-Benz dealer best able to
become an immediate force in the North Shore market area. As an
established Massachusetts automobile dealer, Chambers had access
to advertising opportunities on a scale no new dealer could
match. Indeed, MBNA regarded Chambers as its top dealer in the
Greater Boston area, especially since he had the highest profit
margin and was rated its best dealer "at point of sale."2
Moreover, Chambers was well capitalized and planned to proceed
immediately with construction of an exclusive dealership facility ___________
meeting all MBNA specifications, on a very desirable site he
already owned in Danvers, Massachusetts.
In the meantime, Chambers had agreed to operate a
temporary MBNA dealership facility at a site in Lynnfield,
Massachusetts, pending construction of the permanent facility.
Finally, he not only agreed to operate an exclusive Mercedes-Benz
dealership on the North Shore, but to convert his existing
____________________
2The "point of sale" rating assesses the degree of customer
satisfaction with the dealer at the time the vehicle is
purchased. Chambers fared less well in terms of the vehicle
"service" rating.
5
Somerville dealership to an exclusive dealership as well, giving
MBNA two exclusive dealerships in an important market area where
it had none.
At this point, MBNA approached Cantanucci, explaining
that it intended to honor its commitment to him but would prefer
that the North Shore dealership go to Chambers. MBNA offered to
make Cantanucci whole, however, by reimbursing him for the amount
paid to Gauthier for the North Shore franchise, as well as any
out-of-pocket costs incurred.3 In August 1995, Cantanucci
readily agreed to withdraw.
On September 27, 1995, Gauthier ceased to operate,
leaving MBNA with no permanent Mercedes-Benz dealership on the
North Shore, though Chambers was operating the temporary
dealership in Lynnfield, Massachusetts. See supra p. 5. ___ _____
Thereafter, MBNA never sought another candidate for the North
Shore area, having already concluded, even before Gauthier
proposed Cantanucci, that Chambers was the preferred candidate,
except for the fact that Chambers already owned a Mercedes-Benz ______ ___ ___ ____ ____ ________ _______ _____ _ _____________
dealership in Somerville, a contiguous MBNA market area. __________ __ __________ _ __________ ____ ______ ____
MBNA had a longstanding policy against granting the
same dealer more than one dealership in contiguous market areas.
Its dealership agreements in 1992 stated the policy as follows:
[T]o foster competition among Mercedes-Benz
____________________
3MBNA further proposed to make up any difference between the
price Cantanucci had paid to acquire the Route 128 site, and the
price received for it. Ultimately, however, Cantanucci sold the
land to Chambers for the original purchase price. But see infra ___ ___ _____
pp. 16-17.
6
dealers, it is Mercedes-Benz's policy not to
permit, except in extraordinary ______ __ _____________
circumstances, an existing dealer, owner, or _____________
operator to have interest in the ownership or
management of another competitive Mercedes-
Benz sales and service dealership in the same
area of responsibility or in a contiguous
market area.
(Emphasis added.) Nonetheless, a standard dealership agreement
provision states:
Notwithstanding any provision of this Agree-
ment, the final decision whether to establish ___ _____ ________ _______ __ _________
additional dealers, or relocation of [sic] an __________ _______
existing dealer, shall be made by MBNA solely _____ __ ____ __ ____ ______
pursuant to its own business judgment, and ________ __ ___ ___ ________ ________
nothing in this Agreement shall be construed
to require Dealer's consent to the
establishment of an additional dealer or
relocation of an existing dealer.
(Emphasis added.) This "business judgment" provision and all
other standard dealership agreement provisions are incorporated
by reference into each dealership agreement.
By the time MBNA awarded the North Shore dealership to
Chambers, however, it was operating under a policy adopted in
April 1993:
[A] policy that existed in the past which _ ______ _____
prohibited a proven successful Mercedes-Benz __________ _ __________
operator from operating more than one Point, ________ ____ _________ ____ ____ ___ _____
does not lend itself to the most effective ____ ___ ____ ______ __
and efficient way to meet today's competitive ____ _______ ___________
challenges. Today it is the strength of the __________
overall dealership operation that insures
customer satisfaction in terms of products
and services.
Therefore, it is in our best interests to __ __ __ ___ ____ _________ __
permit, in appropriate circumstances, the ______ __ ___________ _____________
common ownership of more than one dealer ______ _________ __ ____ ____ ___ ______
point for the express purpose of meeting the _____
challenges of a competitive marketplace.
7
(Emphasis added.)4
On December 4, 1995, three dealers brought suit against
MBNA: Clair International, Inc., located in Dedham; Foreign
Motors West, Inc., located in Natick; and Smith Motor Sales of
Haverhill, Inc., in Haverhill. Their complaint alleged that
awarding Chambers a second dealership, to be based in Danvers
a market area contiguous to the Somerville market area where
Chambers already had a dealership breached their dealership
contracts and violated Mass. Gen. Laws ch. 93B. The complaint
sought only to enjoin Chambers from opening and operating a new
dealership in Danvers, Lynnfield, or any other area contiguous to
the Somerville dealership.
Following a three-day bench trial, the district court
found that MBNA had breached its contract with Smith, though not
with Clair or Foreign Motors.5 It determined that the dealership
provision governing contiguous market areas, see supra pp. 6-7, ___ _____
____________________
4Although MBNA did not provide advance notice to existing
dealers regarding its amended policy, appellants raise the notice
issue solely in connection with their belated attempt to assert a
chapter 93B claim independently of any breach-of-contract claim.
See infra pp. 16-17 & note 7. ___ _____
5The trial court decided that MBNA's conduct vis-a-vis Smith
had been based on a "mixed" motive. It found that Smith did not
operate the type of dealership MBNA wanted to work with in the
future and that MBNA had already tried to persuade Smith to
relocate to the larger Manchester, New Hampshire, market. Thus,
the court found that MBNA had installed Chambers not only to meet
its own pressing marketing needs in the North Shore area, but
also to foster its goal of promoting larger dealerships. The
district court further found that MBNA had not violated Mass.
Gen. Laws ch. 93B, however, and denied the injunctive relief
requested by Smith. Finally, since the court directed that a
trial on damages be scheduled in the Smith case at a later date,
Smith is not a party to the present appeal.
8
was contractual in nature, rather than a mere recital of company
policy. The court nonetheless ruled that the unambiguous
contract language required it to ascertain, from the vantage ____ ___ _______
point of MBNA, whether or not "extraordinary circumstances" _____ __ ____
warranted its business judgment to install Chambers in an
additional dealership in a contiguous market area. The court
went on to find that the demise of the Gauthier dealership,
coupled with the closing of Auto Engineering, see supra note 1, ___ _____
had given rise to an extraordinary circumstance in the eyes of
MBNA. The court further found that it was vital to MBNA that
Chambers be installed in the North Shore dealership, given the
extended duration of its dealership problems in the area and the
increased competition from other luxury automobile lines. The
district court findings foreclosed all relief to Clair and
Foreign Motors, whose claims for injunctive relief under chapter
93B were premised exclusively on the alleged breach of their
contracts by MBNA. Finally, the district court certified the
judgment against Clair and Foreign Motors pursuant to Fed. R.
Civ. P. 54(b) ("Rule 54(b)").
II II
DISCUSSION DISCUSSION __________
1. Appellate Jurisdiction 1. Appellate Jurisdiction ______________________
A. Rule 54(b) A. Rule 54(b) _________
MBNA has moved to dismiss the appeal, on the ground
that the Rule 54(b) certification was improper. Rule 54(b)
permits entry of a final judgment as to fewer than all parties in
9
a civil action upon "an express determination that there is no
just reason for delay." After provisionally denying the motion
to dismiss, we instructed the parties to brief both the Rule
54(b) certification challenge and whether 28 U.S.C. 1292(a)(1)
might afford an alternate jurisdictional ground for the appeal,
see part II, 1.B, infra. ___ _____
The Rule 54(b) certification is problematic. First, it
includes no findings on the relationship between certified and
uncertified claims. See Credit Francais Int'l, S.A. v. Bio-Vita, ___ ___________________________ _________
Ltd., 78 F.3d 698, 706 (1st Cir. 1996); Feinstein v. Resolution ____ _________ __________
Trust Corp., 942 F.2d 34, 39-40 (1st Cir. 1991); Spiegel v. ____________ _______
Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir. 1988). ___________________________
Moreover, our review of the record reveals substantial overlap
between the Clair and Foreign Motors cases, on the one hand, and
the Smith case awaiting trial in the district court. Yet the
present appeal would have us interpret contractual provisions
common to all three dealership agreements. See Bio-Vita, 78 F.3d ___ ________
at 707-08 (Rule 54(b) certification improvidently granted in
light of overlap between certified and pending claims); Kersey v. ______
Dennison Mfg. Co., 3 F.3d 482, 487-88 (1st Cir. 1993) (Rule 54(b) _________________
certification improper given interlocking factual issues common
to adjudicated and unadjudicated claims); Spiegel, 843 F.2d at _______
44-45 (Rule 54(b) certification improper where dismissed and
pending claims "stem from essentially the same factual
averments").
Second, the central benefit identified in the district
10
court's decision to certify the adverse judgments against Clair
and Foreign Motors that the appellate court might resolve the
Mass. Gen. Laws ch. 93B claims in the process is illusory,
especially since the district court has yet to address any
chapter 93B claim. See infra p. 16.6 ___ _____
B. Interlocutory Jurisdiction (28 U.S.C. 1292(a)(1)) B. Interlocutory Jurisdiction (28 U.S.C. 1292(a)(1)) ___________________________________________________
The courts of appeals are invested with jurisdiction
over appeals from "[i]nterlocutory orders of the district courts
. . . granting, continuing, modifying, refusing or dissolving
injunctions, or refusing to dissolve or modify injunctions." 28
U.S.C. 1292(a)(1). Clair and Foreign Motors have not
demonstrated that section 1292(a)(1) confers appellate
jurisdiction over their claims.
The district court order had the practical effect of
denying injunctive relief to these appellants. See, e.g., ___ ____
Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment & _________________________________ ____________________________
Allied Indus. Fund, 967 F.2d 688, 690 (1st Cir. 1992) (partial ___________________
summary judgment had practical effect of granting injunction);
Plymouth Cty. Nuclear Info. Comm., Inc. v. Boston Edison Co., 655 _______________________________________ _________________
F.2d 15, 17-18 (1st Cir. 1981) (order precluding injunctive
relief on stricken claims had "practical effect" of denying
____________________
6We would have no occasion to address any chapter 93B claim
at the present time. Were we to conclude that the district court
erred in its interpretation of the dealership contract, or in its
determination that MBNA did not breach the contract, we would
remand to the district court for further consideration of the
Clair and Foreign Motors claims. As there is no chapter 93B
ruling to review, however, our remand order would leave any such
claims for resolution by the district court in the first
instance.
11
injunction). Consequently, appellants must satisfy the test set
out in Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981). ______ _____________________
There, the Supreme Court announced that an
interlocutory order which has the practical effect of granting,
denying, or altering an injunction, is not immediately appealable
as of right under section 1292(a)(1), unless the appellant can ______
show that the order "might have a serious, perhaps irreparable,
consequence, and that [it] can be effectually challenged only by
immediate appeal." Id. (internal quotation marks omitted). See ___ ___
also Casas Office Machines, Inc. v. Mita Copystar America, Inc., ____ ___________________________ ___________________________
42 F.3d 668, 672-73 (1st Cir. 1994). Appellants, however, have
identified no immediate and irreparable harm that would be
occasioned were the district court order not immediately
appealable.
Nevertheless, given both the problematic nature of the
Rule 54(b) certification and the time which has passed since its
entry, we conclude that the interests of justice are best served
by proceeding to the merits. See United States v. Connell, 6 ___ ______________ _______
F.3d 27, 29 n.3 (1st Cir. 1993) (It is well settled that "an
appellate court may forego the resolution of a jurisdictional
question if, as is true here, the appeal is uncomplicated and
easily resolved in favor of the party to whose benefit the
jurisdictional question would redound."); see also Norton v. ___ ____ ______
Mathews, 427 U.S. 524, 532 (1976); Sierra Club v. Larson, 2 F.3d _______ ___________ ______
462, 466 (1st Cir. 1993); In re Unanue Casal, 998 F.2d 28, 33 ___________________
(1st Cir. 1993); Narragansett Indian Tribe v. Guilbert, 934 F.2d __________________________ ________
12
4, 8 n.5 (1st Cir. 1991); Federal Deposit Ins. Corp. v. Caledonia __________________________ _________
Inv. Corp., 862 F.2d 378, 381 (1st Cir. 1988). __________
2. Construing the Dealership Agreements 2. Construing the Dealership Agreements ____________________________________
The dealership agreements included two provisions
directly pertinent to the MBNA decision to install Chambers in
the North Shore area dealership. The first provision prohibits
MBNA from awarding franchises to the same dealer in contiguous
market areas except in "extraordinary circumstances." The second
provision sweeps more broadly, however, enabling MBNA to exercise
its business judgment as to whether an additional franchise
should be awarded to an existing dealer in a contiguous market
area.
The district court made two important legal rulings
regarding these provisions. First, it held that the "extraordi-
nary circumstances" provision is contractual in nature and
binding upon MBNA. It then construed the "extraordinary
circumstances" provision in relation to the "business judgment"
provision, as follows:
But what does it mean? In the context read
in light of the more sweeping clause . . .
which leaves to Mercedes-Benz the virtually
unfettered, save by the covenant of good
faith and fair dealing . . . what does this
more limited but more precise clause mean?
Legally . . . to read it in harmony in . . .
a way that effectuates the intention of the
parties, it means that this clause is read
such that, absent extraordinary circumstances
in the eyes of Mercedes-Benz, they will not
appoint a dealer to have two points in
contiguous market areas and that they will
interpret the implementation of this policy
in a fashion as to foster competition, to
give the phrase to foster competition
13
significance, in its context. Now, that's
what this language means on its face.
Thus, the district court rejected both the MBNA claim that the
"extraordinary circumstances" provision was simply a policy
statement, and the theory advanced by appellants that the
"business judgment" provision had no application in the present
context.
Appellants challenge the district court ruling on the
ground that its "extraordinary circumstances" determination
should have been based on an objective reasonableness standard,
not merely on reasonableness in the eyes of MBNA. As the present
claim challenges the district court's construction of unambiguous
contractual terms in an integrated agreement, we review de novo __ ____
the "plain meaning" the district court ascribed to these terms.
State Police Ass'n v. Commissioner of Internal Revenue, No. 97- __________________ _________________________________
1319, slip op. at 5 (1st Cir. Aug. 20, 1997); United States ______________
Liability Ins. Co. v. Selman, 70 F.3d 684, 687 (1st Cir. 1995). ___________________ ______
The choice-of-law provision in the dealership agreement
designates New Jersey law. See McCarthy v. Azure, 22 F.3d 351, ___ ________ _____
356 n.5 (1st Cir. 1994) (reasonable choice-of-law provision to be
respected). Since MBNA has its principal place of business in
New Jersey, we honor this designation.
As the district court recognized, "a document should be
read to give effect to all its provisions and to render them
consistent with each other." Mastrobuono v. Shearson Lehman ___________ ________________
Hutton, Inc. 115 S. Ct. 1212, 1219 (1995) (Illinois law; citing ____________
RESTATEMENT (SECOND) OF CONTRACTS 203 and cmt. b (1979); 202
14
(5)); see also Coolidge & Sickler, Inc. v. Regn, 80 A.2d 554, 557 ___ ____ ________________________ ____
(N.J. 1951) ("'The design of the parties to a written contract is
to be collected from the instrument as an entirety. . . . Words,
phrases and clauses are not to be isolated but related to the
context and the contractual scheme as a whole, and given the
meaning that comports with the probable intention. The literal
sense of the terms may be qualified by context.'" (quoting
Mantell v. International Plastic Harmonica Corp., 55 A.2d 250, _______ ______________________________________
255 (N.J. 1947))); Andreaggi v. Relis, 408 A.2d 455, 468 (N.J. _________ _____
Super. 1979) ("All provisions of a document must be read and
should be harmonized where possible in interpreting a docu-
ment."). Unlike appellants, the district court construed the
dealership agreement as a whole, in the sense that it did not
render meaningless the broad contractual caveat that MBNA, in the
exercise of its exclusive business judgment, was to be the
ultimate arbiter. Thus construed, the "extraordinary circum-
stances" provision simply encapsulates the essential nature of
the business judgment MBNA is permitted to make regarding whether
to award the same dealer more than one dealership in contiguous
market areas.
3. "Extraordinary Circumstances" 3. "Extraordinary Circumstances" ___________________________
The district court based its "extraordinary
circumstances" determination on the evidence adduced at trial.
Focusing especially on the extended period during which MBNA had
been without adequate representation on the North Shore, it found
that "the demise or imminent demise of Gauthier on the North
15
Shore, coupled with the squeezing out of Auto Engineering . . .
[was] an extraordinary circumstance in the eyes of Mercedes." We
review its finding only for "clear error." Selman, 70 F.3d at ______
687 ("clear error" standard "pertains whenever the trial court
decides factual matters that are essential to ascertaining the
parties' rights in a particular situation (though not dependent
on the meaning of contractual terms per se)").
The district court reasonably found that the extended
absence of an adequate MBNA presence on the North Shore
constituted an extraordinary circumstance in the eyes of MBNA,
especially since MBNA was facing aggressive competition from new
luxury automobile lines operating from large, exclusive
dealerships, whereas MBNA had no exclusive dealership in the
North Shore market area and soon could be without any dealership
there. MBNA's decision to award a North Shore dealership to
Chambers in these extraordinary circumstances, see supra Section ___ _____
I, was well within the broad and exclusive "business judgment"
discretion conferred upon it by the dealership agreement. There
was no clear error.
Next, we consider appellants' claims under Mass. Gen.
Laws ch. 93B. Since there was no breach of contract by MBNA,
their chapter 93B claims fail as well. See supra pp. 10-11 & ___ _____
note 6.
Appellants assert that MBNA promulgated a secret policy
inconsistent with the contractual restrictions on multiple
dealerships in contiguous market areas, and that MBNA "secretly
16
subsidized" Chambers by affording him financial assistance in
acquiring the Route 128 property from Cantanucci. See supra note ___ _____
3. Appellants mischaracterize the trial court record, however,
in attempting to demonstrate that enough evidence of "general
unfairness" by MBNA came in by consent, at trial, to raise the
specter of a chapter 93B violation notwithstanding the absence of
a breach of contract.
The district court initially excluded all evidence of
subsidies, since appellants had never alleged a chapter 93B claim
independent of their breach-of-contract claims.7 Clair and
Foreign Motors then changed course, and ultimately the proffered
evidence was admitted, but only to establish "extraordinary
circumstances." We cannot conclude, on such a record, that the
proffered evidence came in by consent to establish "general
unfairness." To the contrary, neither MBNA nor the district
court acquiesced, let alone consented, to the trial of a chapter
93B claim predicated on general unfairness. Nor did Clair or
Foreign Motors move to amend their pleadings, see Fed. R. Civ. P. ___
15(b), to reflect their newfound general unfairness theory.
Given the explicit restrictions repeatedly imposed by the
district court in allowing the "extraordinary circumstances"
evidence, we conclude that the general unfairness theory was not
tried below. See DCPB, Inc. v. City of Lebanon, 957 F.2d 913, ___ __________ _______________
____________________
7Further, based on the fact that the complaint included no
independent chapter 93B claim, the district court ruled that
MBNA's failure to give its dealers notice of the new policy was
immaterial, since MBNA had complied with the "extraordinary
circumstances" provision in the dealership agreement.
17
917 (1st Cir. 1992) ("The introduction of evidence directly
relevant to a pleaded issue cannot be the basis for a founded
claim that the opposing party should have realized that a new
issue was infiltrating the case."). See also In re Rauh, ___ ___ ____ ___________
F.3d ___, ___, 1997 WL 394424, *7 (1st Cir. July 18, 1997)
(collecting cases). 8
III III
CONCLUSION CONCLUSION __________
Accordingly, the district court judgment is affirmed; ___ ________ _____ ________ __ ________
costs to MBNA. _____ __ ____
____________________
8Appellants' further contention that an injunction should
have been granted under the common-law standard was never
raised below. See Violette v. Smith & Nephew Dyonics, Inc., 62 ___ ________ _____________________________
F.3d 8, 10-11 (1st Cir. 1995), cert. denied, 116 S.Ct. 1568 _____ ______
(1996); Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, __________ _________________________
1282 (1st Cir. 1992) (collecting cases).
18