USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1527
KNAPP SHOES, INC.,
Plaintiff, Appellant,
v.
SYLVANIA SHOE MANUFACTURING CORPORATION,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]
_____________________
____________________
Before
Breyer, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________

Timothy C. Blank with whom Bernard J. Bonn III, Dina Warner

_________________
___________________
___________
Dechert Price & Rhoads were on brief for appellant.
______________________
Joseph B. Green with whom Bennett H. Klein and Kotin, Crabtre
________________
_________________
______________

Strong were on brief for appellee.

______
____________________
February 10, 1994
____________________

BOUDIN,

Circuit Judge.
_____________

Knapp Shoes Inc., the plaintiff

in this commercial dispute, appeals from the district court's

order
had

dissolving a preliminary
frozen assets of

injunction.

That injunction

the defendant, Sylvania

Shoe Manufac-

turing Corp., in an amount sufficient to satisfy

a potential

judgment in Knapp's favor.

Because we find that the primary

ground of the court's order

is a defense that was

Sylvania,
support

waived by

and that the court's findings were insufficient to

its

action

on

the

Sylvania, we

vacate

the order

alternative
dissolving

ground
the

urged

by

preliminary

injunction.
I.
Knapp sells work shoes at
levels,

including a

resistant

line

rubber sole.

both the wholesale and retail

of shoes

with

Beginning

a patented

in 1986

or

slip-

1987, Knapp

placed orders with Sylvania for the latter to manufacture and

supply

Knapp

with

several

different

incorporating Knapp's slip-resistant sole.

styles

of

shoes

Knapp intended to

resell the shoes both through its retail outlets and directly
to

large

customers

industries.

in

the

restaurant,

hotel

and

other

Between 1987 and 1989, Sylvania manufactured and

delivered over 250,000 pairs of shoes to Knapp.

Sometime
quality

in

1987,

Knapp

became concerned

of the shoes manufactured

problem was

the tendency

by Sylvania.

of the sole

about

the

The primary

to separate

from the

-2-2-

leather body

of the

shoe.

Although

the parties

disagreed

(both then and now) as to the extent of the problem, Sylvania

made

a number

of changes

in construction

of the

shoes in

order

to eliminate

the

problem.

According

to its

later

complaint, Knapp was assured by Sylvania on various occasions

between 1987 and 1989 that the sole adhesion problem had been
remedied.

These

assurances, Knapp asserts, were

untrue; it

says that the proportion of defects remained high and in some

periods approached 100% for certain styles.
On April

10, 1990,

under Massachusetts
breach

of

law for

express

merchantability

Knapp filed

this diversity

breach of

warranty

and

action

contract (count

implied

1),

warranties

of

and fitness (counts 2-4), breach of the duty

of good faith and fair dealing (count 5), fraud and negligent
misrepresentation
Gen.

Laws Ann.

these claims was

(counts 6 and
ch. 93A

7), and violation

(count 8).1

that too many of the

The

of Mass.

gravamen of

all

shoes manufactured by

Sylvania and sold to Knapp were defective.

Knapp's

complaint was

quite detailed in

setting forth

the categories of damages it claimed to have suffered.

included increased costs
returning

defective

of inspection and for

shoes;

lost

profits

due

These

handling and
to

Knapp's

____________________
1Chapter 93A outlaws "[u]nfair methods of competition
and unfair or deceptive acts or practices in the conduct of
any trade or commerce." Mass. Gen. Laws Ann. ch. 93A,
2(a),
and it permits awards of multiple damages and attorney's
fees. Id.
11.
___
-3-3-

inability

to

Sylvania's
Knapp

other

orders

refusal to

did return

because

to

fill

for

customers;

give credit

or attempted

Knapp was forced

for

to

losses

due

certain shoes

return; increased

to make substitute

to
that

costs

purchases from

manufacturers; credits and price concessions Knapp had

afford its own customers because of their dissatisfaction

with defective shoes; and losses in good will and in customer

orders due to Sylvania's conduct.
Sylvania filed an
denied

answer and counterclaim.

virtually all of

also asserted
disclaimer
contributory

the incriminating allegations.

13 affirmative
of

warranties,

negligence.

The answer

defenses, including
unclean

Sylvania's

hands,

It

estoppel,
laches

counterclaim

and

alleged

that Knapp still owed Sylvania about $277,000 for shoe orders
not

yet paid

(Sylvania also

attorney's

fees

under

suggested

that

any

specification

claimed

Chapter
defects

of materials to

multiple damages

93A).
were

due

be used in

and

The

counterclaim

to

Knapp's

own

manufacturing its

shoes.
Both parties
judge and

waived a

consented to
jury trial.

proceed before a
The trial

magistrate

was bifurcated,

with the liability phase covering

1991.

At the conclusion

nine trial days in January

of this phase, the magistrate judge

on January 31, 1991, entered a four-page memorandum and order

that devoted

one

paragraph each

to five

of Knapp's

eight

Sylvania's counterclaim.

The

-4-4-

counts,

without

discussing

first substantive paragraph reads as follows:

Except to the extent that plaintiff
has shown, or can show, that
shoes
manufactured by defendant and delivered
to plaintiff, and/or shoes manufactured
by
defendant
to
be
delivered
to
plaintiff, were, in
fact, defective,
plaintiff has failed to satisfy this
court by a preponderance of the evidence
that
defendant
breached
an express
_______
warranty.
None
of
the
parties
anticipated,
or
could,
in
the
circumstances,
reasonably
anticipate,
that each and every shoe manufactured by
defendant for the plaintiff would be free
of defect.
On its part, defendant
expressly promised that it would use its
best effort to produce a defect-free
shoe,
and
that
it
would
credit
plaintiff's account for those defective
shoes which plaintiff returned.
All
parties clearly understood that that was
the extent of
the express warranty,

nothing more, and nothing less.

In the subsequent paragraphs, the magistrate judge found
that

Knapp

had

failed

to

misrepresentation or--"except
has

shown, or

returned
and

can show,"

order said that

As

fraud,

extent that

plaintiff

a refusal

by Sylvania

to credit

for Knapp's

the duty of

good faith

chapter 93A

claim, the

Sylvania had not been shown

in conduct so unscrupulous as

to have engaged

to make it liable for multiple

it noted, but did not

attorney's fees might

negligent

to the

defective shoes--breach of

fair dealing.

damages;

prove

decide, the question whether

be due Knapp under chapter

93A on the

-5-5-

theory that a

breach of warranty was a

violation of chapter

93A under a regulation of the state's attorney general.

In May 1991, prior to
discovered

that Sylvania

liquidating its assets.

the damages phase of trial, Knapp

was

going

out

of

business

Fearful that Sylvania would

judgment-proof, Knapp obtained a

and

soon be

temporary restraining order

precluding

Sylvania from dissipating assets in the amount of

$3,775,657.22--the
prove in

amount of

damages

the next phase of the

modified this

order on June

preliminary injunction and

that

trial.

Knapp hoped

to

The magistrate judge

10, 1991, converting it

amending it to allow

into a

Sylvania to

make limited payments to its creditors and lawyers.

The damages phase of trial
June

1991;

evidence

at

Sylvania's

took place over five days in

behest,

was heard on November

were filed

by both

nothing further

sides in

an

additional

25, 1991.
March 1992.

day

of

Proposed findings
It

appears that

occurred during the next 12 months until, in

March 1993, the magistrate judge issued an order proposing to

certify

certain

Judicial Court.

questions
Both

to

the

sides opposed

Massachusetts

Supreme

certification, but

April 8, 1993,

the magistrate judge certified

to the Supreme

Judicial Court; both related

on

two questions
to the possible

application of Chapter 93A to "a simple breach of warranty."2

____________________
2The first question was whether a regulation issued by
the state attorney general under chapter 93A, defining a
violation to include a breach of warranty, applied to a
-6-6-

In the certification, the

two

certified

questions

magistrate judge prefaced the

with a

ten-page

statement.

The

statement repeated the magistrate judge's rulings on the five

counts discussed

in its

made several additional

law.

These

"only the

January 31,

1991, order,

findings of fact and

and then

conclusions of

determinations were prefaced by a statement that

ultimate findings

herein - not the

and conclusions

are set

subsidiary findings and conclusions."

forth
The

magistrate judge determined inter alia that:

__________
1.
. . . . By their express
negotiations,
by
their
express
understandings, and by
their express
course of dealings, Sylvania promised
Knapp that, in the event that shoes were
defectively manufactured, Knapp's remedy,
and sole remedy, would be the replacement
____
of [or credit for] those shoes shown to
be defective and returned - nothing more,
and nothing less [footnote omitted].
2.
Because of this clear
express
understanding
between
respective
parties,
Knapp's

and
the
sole
____
remedies, in terms of breach of contract,
or under the relevant provisions of the
Uniform Commercial Code, are limited to
the replacement of [or credit for] those
shoes shown to be defective and returned
to Sylvania.
Other determinations included a ruling that Sylvania was
obliged to give

a credit for or replace

____________________

any defective shoes

transaction of the kind described by the magistrate judge,

namely, a breach as between two similarly situated businesses
based on delivery of a "minute" portion of non-conforming
goods.
If the answer were yes, the second question asked
whether the regulation was valid under the authorizing
statute.
-7-7-

returned by
returned

Knapp;

by Knapp's

supplier; a
faith"

statement
customers

. .

to correct

a problem

approximately three

allegedly
shoes,

were

many
made

"not

defective .

credit

was

the
an

shoes

overseas

"the utmost good

reasonably foreseen"

by

a final footnote that "at best

(3)

. .

of
by

finding that Sylvania acted in

either side; and a finding in

.

that

percent of

and as

given to

to

Knapp

the shoes

a majority

when

those

were

of those
shoes were

returned . . . ."
The Supreme
questions
strength

certified
of

certification
dissolve the
granted

Judicial

this

the

Court

by the

has

district

magistrate

judge's

order, Sylvania

moved on

preliminary injunction.
motion on

May

5, 1993,

yet

to

court.

act

on

the

But

on

the

findings
April
The

in

8, 1993,

the
to

magistrate judge

concluding

that its

earlier

findings

left

substantial recovery

Knapp

that

with

the freeze

could no longer be justified.

so

little

hope

on Sylvania's

of

assets

The order set forth findings 1

and 2 from the certification, quoted in pertinent part above.

Knapp filed a notice of appeal on May 11, 1993, and this
court

stayed the

magistrate

preliminary injunction
We

have jurisdiction

which permits

judge's

pending the
pursuant to

appeals from

order dissolving

outcome of
28

U.S.C.

the

this appeal.
1292(a)(1),

interlocutory orders

dissolving

injunctions.

-8-8-

II.
This circuit has
to

be applied

by a

dissolve a preliminary
that in

not explicitly addressed the

district court
injunction.

the ordinary case

in deciding
But we

standard
whether to

think it evident

dissolution should depend

on the

same considerations that guide a judge in deciding whether to

grant
The

or deny a

preliminary injunction in

familiar quartet

includes

likelihood

the first place.

of success,

the

threat of

irreparable injury

relief, the

equities and

surprising that a
might produce a

to the

party seeking

the public interest.3

interim

It

is not

fresh look after the trial

evidence is in

different judgment about the

probability of

success.
In dissolving
the magistrate

the preliminary injunction in

judge relied upon his

this case,

certification findings

that the parties had agreed to limit their remedies under the
contract
shoes.
finding
their

to return and
As already

replacement or credit

for defective

noted, the magistrate judge

number 1 that

"[b]y their express

concluded in

negotiations, by

express understandings, and by their express course of

dealings, Sylvania

promised Knapp

that, in

the event

that

shoes were defectively manufactured, Knapp's remedy, and sole

____

____________________
3See, e.g., Teradyne, Inc. v. Mostek Corp., 797 F.2d 43,
___ ____ ______________
____________
51 (1st
Cir. 1986);
Planned
Parenthood League
of
_________________________________
Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.
_____________
________
1981).
-9-9-

remedy, would

be the

replacement of [or

shoes shown to be defective

credit for]

those

and returned - nothing more, and

nothing less."
Accordingly,

the

magistrate

judge held

that

Knapp's

claims for damages, see Mass. Gen. Laws Ann. ch. 106,
___
(buyer's

ordinary

consequential

damages),

damages), over

7-16
and

2-715

(incidental

above

credits for

and
shoes

actually returned to Sylvania, were barred by Mass. Gen. Laws

Ann.

ch.

106,

substantial

2-719;4

recovery

preliminary injunction.

was

hence,

Knapp's

insufficient

likelihood

of

support

the

to

We need not decide whether a section

2-719 defense was supported by the evidence, because we

that

hold

Sylvania waived any such limitation of remedies defense

by failing to raise it in a timely fashion.

____________________
4Mass.
provides:

Gen. Laws

Ann. ch.

106,

2-719,

pertinently

Contractual Modification or Limitation of Remedy

(1) . . . (a) the agreement may provide for
remedies in addition to or in substitution for
those provided in this Article and may limit or
alter the measure of damages recoverable under this
article, as by limiting the buyer's remedies to
return of the goods and repayment of the price or
to repair and replacement of non-conforming goods
or parts; and
(b)

resort to

a remedy

as

provided is

optional

unless the remedy is expressly

agreed to
exclusive, in which case it is the sole remedy.

be

-10-10-

Fed. R. Civ.
plead

certain

matter

P. 8(c) requires a party

specified

constituting

defenses, as

an avoidance

or

Affirmative defenses not so pleaded

Ramirez-Rivera, 869 F.2d
______________
previously held that a
to

fixed

purposes

sum

of Rule

to affirmatively

well

as

"any other

affirmative defense."

are waived.

See FDIC v.
___ ____

624, 626 (1st Cir. 1989).

We have

statutory provision limiting

damages

constituted
8(c).

Authority, 520 F.2d 810, 813

_________

an

affirmative

Jakobsen
________

v.

defense

for

Massachusetts Port
___________________

(1st Cir. 1975).

Section 2-719

performs the same damage limitation function, and there is no

reason to reach a contrary result here.

See also Ingraham v.

________ ________

United States, 808 F.2d 1075, 1079 (5th Cir. 1987).

_____________
Sylvania failed to raise the

defense in its answer, its

amended answer, its pretrial memorandum, or its proposed jury

instructions.5
of

Indeed, there

the parties thought

was present in
liability phase
evidence

had

"[w]e've

got a

whether

or not

is no indication

that a limitation

that either

of remedies issue

the case until the ninth and final day of the

of trial.
been

that point, after

submitted,

problem,
.

At

. .

the

I think
the

magistrate
under

all of the
judge

Section 719(b)

parties agreed

that

said
of

defective

returns, credits for [sic] would be the sole remedy."

____________________
5The parties submitted proposed jury instructions prior
to their waiver of trial by jury and consent to proceed
before the magistrate judge.
-11-11-

Sylvania

does

not

dispute

remedies is an affirmative defense.

it raised that defense in

that

the

limitation

of

Nor does it suggest that

its answer or elsewhere.

Instead,

Sylvania argues that the statement of the magistrate judge at

the close of the liability stage,

as well as later ones made

by the magistrate

judge in the damages phase, put plaintiffs

on notice as to the issue.

We do not agree.

The reason why affirmative defenses under Rule 8(c) must

be pled in the answer is to give the opposing party notice of
the

defense

arguments

and a

to

chance

controvert

to
the

develop

evidence and

defense.

offer

Blonder-Tongue
______________

Laboratories, Inc. v. University of Illinois Foundation, 402

___________________
_________________________________
U.S. 313, 350 (1971).
with

Rule

8(c)

if

Some courts have excused noncompliance

"a

affirmative defense by
is not

prejudiced by

initial pleading.
992 F.2d

plaintiff

some means other than

the omission of

notice

of

an

pleadings" and

the defense

from the

E.g., Moore, Owen, Thomas & Co. v. Coffey,

____ _________________________
______

1439, 1445 (6th Cir. 1993).

same result where

receives

This court reached the

a defense "has been fully

tried under the

express or implied consent of the parties, as if it

raised in the original

had been

responsive pleading." Ramirez-Rivera,

______________

869 F.2d at 626-27.

We need not decide whether notice and no prejudice would
also serve
F.2d at 813

as an excuse

in this circuit, cf.

__

(referring favorably to the

-12-12-

Jakobsen, 520

no-prejudice test),

since

we find that neither the Coffey nor the Ramirez-Rivera

______
______________

standard was met

here.

of remedies issue

In the present

was not raised until virtually

the

liability trial, after

all

of the

evidence on

Rather, the magistrate

a fragment

discovery and the

liability.

presentation of witnesses

from

Nor

the end of

submission of

did the

or documents focus on

of testimony

from one

parties'

this issue.

judge's ruling seems to

Knapp executive named John

the

case, the limitation

have derived

witness:

a former

Esser testified that he

had told

Knapp president in July 1989 that Sylvania "[had] agreed

and will

agree, if

we do

have a

claim, to

take back

any

shoes, and always have."

This
from

is pretty thin

other

arrangements
for credit.

sources

stuff, even coupled

that

for the return

The question,

were an available remedy

the

to the point,
by Sylvania

had

of defective goods

extensive
in exchange

after all, is not whether credits

but whether the parties had

that credits were the exclusive

Ann. ch. 106,

parties

with evidence

remedy.

See Mass. Gen. Laws

___

2-719(1)(b) (quoted in note 4

Esser's statement in context
to show that credits were

agreed

above).

More

was not elicited

the exclusive remedy,

nor

did

Knapp

cross-examine

in order

to

refute

such

suggestion, which after all Sylvania had not previously made.

Thus the parties

did not litigate the limitation of remedies

issue in the liability phase of the trial.

-13-13-

Nor

was the

Although in this

issue

it was

the

now

open

to litigation

limitation of remedies

liability or a damage issue.

fortune

teller

but

suppose

phase.

adverted to the
suggest not

rather that

the

One can argue as to whether

issue is

better described

as a

But in this case, the issue was

in the former phase and

to

damages

have addressed the issue in the

phase of the trial.6

not litigated

the

issue, his brief remarks

parties either had or should

liability

in

phase the magistrate judge

limitation of remedies
that

litigated

that

such

it would have taken a

evidence

would

be

welcomed in the latter phase.

In

sum, we conclude that Sylvania waived the limitation

of remedies defense by
by amendment in

failing to assert it in the answer or

accordance with Rule 8(c).

The defense was

not

resurrected either by clear

or by actual litigation of the

Thus the

notice given prior to trial

issue in the course of trial.

limitation of remedies

defense is out of

the case

and cannot support the order vacating the injunction.

III.

____________________
6On the first day of the damages trial the magistrate
judge, in ruling on an in limine motion by Sylvania to limit
_________
evidence, said that the motion was granted "to the extent
it's already [sic] on what type of remedy is available as
opposed to what damage is suffered." In a written order the
next day, the magistrate judge--speaking of the liability
phase--said:
"An overriding issue - recognized, or which
should have been recognized by the parties - was and is
whether parties agreed to limit their respective remedies . .
. ."
-14-14-

Sylvania
alternative,
finding

argues that the order under review may, in the

be

upheld

that only

based

very

on

small

the

magistrate

percentage of

manufactured by Sylvania for Knapp were defective.

very small fraction

of the shoes made by

judge's

the

shoes

If only a

Sylvania for Knapp

were defective, it might well follow that the damages claimed

by Knapp were wildly excessive and that the injunction was no
longer needed or

ought to be reduced in amount.

practically all of

the types

of damage

After all,

claimed in

Knapp's

complaint (and recited above) depend as a practical matter on

the

premise

that

large percentage

of

the

shoes

were

defective.
But in this case we have no way to review or sustain the
critical determinations--that the defective shoes were a very
small

quantity--about

three percent--because

supporting findings by the magistrate judge.

52(a)

requires that "in

granting or

injunctions the court shall .

fact and conclusions
its action."

not to

injunctions

and of

refusing interlocutory
findings of

of law which constitute the

appellate review.

-15-15-

adequate

to the

trial, id., but

___

id., reflects the

___

providing an

grounds of

which also attaches

decision in a jury waived

most other rulings,

are no

Fed. R. Civ. P.

. . set forth the

This requirement,

court's own final

there

importance of

basis for

their

Sylvania argues
this case

that Rule

because the

52(a) is

rule, by its

decisions "granting

or refusing

Although

some

there

is

not applicable

terms, applies

to

only to

interlocutory injunctions."

general

support

for

Sylvania's

position, see Baltimore & O. R. R. v. Chicago R. & I. R. R.,

___ ____________________
______________________
170 F.2d 654, 659 (7th Cir. 1948), cert. denied, 336 U.S. 944
____________
(1949); Munoz
_____
262,

270 (1st

v. Porto Rico Ry. Light & Power Co., 83 F.2d

__________________________________
Cir.)

(construing Equity

Rule

70 1/2,

the

precursor of Fed.

R. Civ. P. 52(a)), cert. denied, 298 U.S.

_____________

689

the

(1936), both

court's refusal
_______

cases

to dissolve

cited

involved

a preliminary

the

district

injunction.

We

agree that where a court made adequate findings when granting

the preliminary

injunction in the

first place, it

need not

restate those findings in order to maintain the injunction.

A decision to vacate
______
is quite another matter.

an existing preliminary injunction

It is not only a substantial change

in the status quo but is the effective equivalent of a denial

______
of

a preliminary

triggers Rule
think that

injunction,

an event

52(a)'s requirement

that unquestionably

of findings.

it stretches Rule 52(a) unduly

We do

not

to apply it to an

order vacating a

preliminary injunction.

But the need

for

findings in such a case is so strong that we would impose the

findings

requirement ourselves if we thought that Rule 52(a)

had left an inadvertent loophole.

-16-16-

Given

our

conclusion

that Rule

52(a)

findings

were

required, we cannot sustain the order vacating the injunction

in this

case on the alternative ground

namely,

the

small

magistrate

judge

alternative

ground.

close

percentage
did

not

of
rely

Instead, in

offered by Sylvania,

defective
at

all

shoes.
on

The

Sylvania's

a footnote sentence at the

of the certification, the magistrate judge observed in

explaining the

questions being certified:

"[T]he plaintiff

has shown that

three

(3) per cent

of the shoes

were allegedly defective."

We do not think that this sentence is sufficient for purposes

of Rule 52(a).
Admittedly, the case law lays down few clear rules as to

what is

adequate compliance with

that "conclusory

findings" are

Rule 52(a).
not enough,

Corp. v. Schiavone Construction Co.,

_____
__________________________
Cir. 1990), but

pertinent

findings

contested

matters;

there

elaboration

of

detail

or

and
is

have said

Thermo Electron
_______________

915 F.2d 770, 773

also that "the `judge need

definite,

We

only make brief,

conclusions

upon

necessity

for

no

(1st

particularization

of

the
over-

facts.'"

Applewood Landscape & Nursery Co. v. Hollingsworth, 884 F.2d

__________________________________
_____________
1502, 1503
yardstick

(1st Cir.
is not

1989).

The

surprising when

difficulty in
one

devising a

considers the

great

diversity of disputes governed by the rule.

-17-17-

In

the abstract,

one might

or

might not

"conclusory" a magistrate

judge's statement

delivered by

Knapp had a

three percent:

Sylvania to

describe as

that the

defect rate

the statement is specific

shoes

of about

and concrete, but

unexplained.

In truth, pinning

"conclusory"

on a single sentence

52(a)

for

calls

appellate

review on

depends on the
depth
that

level

a label like

of

is not very helpful; Rule

detail

factual issues,

importance of an

"ultimate" or

adequate
________
and

to

what is

permit
adequate

issue, its complexity,

the

and nature of evidence presented, and similar elements

vary

from case

to

case.

See generally
_____________

Kelley
______

v.

Everglades Drainage District, 319 U.S. 415, 420 (1943).

____________________________
Here the

percentage of defects is critically important.

Of course, the

magistrate judge could not know

basis for dissolving

the injunction would

that his own

be set aside

and

that Sylvania would rely on the percentage finding to support

the

dissolution order.

But

to the

extent that

percent finding is proffered by Sylvania

the dissolution order,
For this purpose,

as a foundation for

it must meet the test

the importance of the

the three

of Rule 52(a).

issue requires more

rather than less detail.

In this case
know
issue

there is no

how the magistrate

at trial,

nor how

detail whatever.

judge defined "defect,"

he

arrived at

figure, nor how he handled Knapp's claim

-18-18-

We do

not

a disputed

the three

percent

that the percentage

of shoes

actually returned

to Sylvania

the percentage of defects.7

greatly understated

On all of these issues there is

no indication as to why certain witnesses were credited, what

data

was used

or how

it

evidence was rejected.

judgment

whether, on

was construed,

or why

competing

We are thus unable to make a reasoned

this critical

magistrate

judge's

finding

was

erroneous."

Fed. R. Civ. P. 52(a).

issue
or

of defects,

was

not

the

"clearly

In fairness to the magistrate judge, we note that he did

not

make

the

"approximately three

(3)

per

cent" finding

either to support a final determination of damages (which has

not

yet

occurred)

or

to

support

preliminary injunction (it is Sylvania

the finding play that role).

dissolution

of

the

who is trying to make

Rather the footnote finding was

made to flesh out a hypothetical statement in the body of the

certification.

There

is

no

requirement

for

Rule

52(a)

findings in certifying a legal question to a state court.

IV.
The trial in this case concluded on November 25, 1991, a
year and a half before
forms the basis

entry of the interlocutory order that

of this appeal and

the present decision.

We

over two years

prior to

see little point in remanding this

____________________
7Knapp claimed that many of the defective shoes were
simply disregarded by customers and that other shoes, which
Knapp sought to return to Sylvania as defective, were not
accepted by Sylvania.
-19-19-

case

for further

court's

findings

with

respect

to

the

district

order dissolving the preliminary injunction.

view, the energies of both

In our

the court and the litigants would

be more fruitfully directed toward a final resolution of this

case on the merits.
Sylvania is,

of course,

free to file

dissolve the preliminary injunction.

some

urgent need

expect
the

to

the magistrate judge

preliminary

issued.

for the

Knapp's

justify

injunction

release

But unless
of the

until

the

as

yet there

motion to
it can show

funds, we

to refuse summarily

case was once thought to

an injunction;

a new

final

would

to revisit
decision

is

have enough merit

are

no supported
_________

findings that warrant a reappraisal of potential damages; and

Sylvania is apparently in the process of distributing

all of

its unencumbered assets.

As for the certification, it relates only to the limited
issue

of attorney's

fees under

chapter 93A.

Possibly the

Supreme Judicial Court will have answered the questions posed

by

the time

decision on

the

magistrate

the merits.

judge is

If not,

ready

to issue

the magistrate

his

judge may

think that the wiser course, in litigation that has otherwise

been ripe

for resolution

decide the

whole case

at least since

and make his

March 1992,

best conjecture

is to
on the

chapter 93A issues.

-20-20-

One

final issue

preliminary injunction,

remains.

In

the magistrate judge

the attachment on trustee process.

process is
certain

the order

an interim remedy

vacating the
also dissolved

An attachment on

that was used here

trustee

to prevent

persons owing funds to Sylvania from disbursing them

to Sylvania, in effect protecting funds that might be used to

satisfy a
246

judgment for Knapp.

1; Fed. R. Civ.

See Mass. Gen. Laws. Ann. ch.

___

P. 64; Mass R. Civ. P. 4.2.

Our stay

pending review kept both the injunction and the attachment in

effect until disposition of this appeal.
Sylvania argues
is

not

equivalent

that the dissolution

to

the

of the attachment

dissolution

of

injunction and is not an appealable event.

preliminary

Knapp argues that

the attachment is appealable, citing Teradyne, Inc. v. Mostek

_____________
______
Corp.,
____

797 F.2d

reason

to

rationale
_________

43, 44-47

resolve
for

attachment was

this

constitute legal error,

will

on his

issue.

dissolving
the same.

own

(1st Cir. 1986),

both

The
the

but we

see no

magistrate
injunction

judge's
and

the

As we have found that rationale to

we assume that the

motion maintain

the

magistrate judge

attachment in

force

unless and until there is a proper basis for modifying.

Sylvania says that
been

earning no interest

unequivocally

owing to

the funds under the

for two years.
Sylvania, there

means for dealing with this problem (e.g.,

____

-21-21-

attachment have
If the

should

funds are
be an

easy

by an arrangement

transferring the funds to an interest bearing account subject

to

the

Sylvania

attachment).
from

Nothing

applying

modification of the

to

the

in

this

opinion

magistrate

attachment to address this

judge

prevents
for

or any other

problem pertaining to the attachment.

The magistrate judge's order
injunction is vacated.
_______

dissolving the preliminary

-22-22-