USCA1 Opinion

March 29, 1996

[Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1800

CASH ENERGY, INC., ET AL.,

Plaintiffs - Appellants,

v.

MELVIN L. WEINER, ETC., ET AL.,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Neal Marshall Brown

____________________

with whom

Amy S. Locke
_____________

was on

brief

appellant.

Robert S. Sanoff with whom Nicholas C. Theodorou, Sara E. Wyl

________________
______________________ ____________
and Foley, Hoag & Eliot were on brief for appellees.
___________________

____________________

____________________

Per Curiam.
Per Curiam.
___________

brought an

owner

Plaintiff-appellant

action seeking damages from

for groundwater

property.

contamination

O.

Henry

an adjacent property

to Henry's

Henry appeals from the district

summary judgment for the defendants.

Mark

commercial

court's grant of

We affirm.

I.
I.
__

BACKGROUND
BACKGROUND
__________

We

appear on

first

summarize

the summary judgment

light most favorable to

the

relevant facts

record, viewing them

the non-movant Henry.

Friction Materials, Inc.,

________________________

30 F.3d 255, 259 (1st

In

the

this

case,

however,

as

summary

See
___

judgment

they

in the

Woods v.
_____

Cir. 1994).

record

is

particularly unhelpful

ruled

the

to Henry

because the

district court

that he failed to comply with the local rule requiring

party opposing

statement

of the

genuine issue to

consequence

moving

of

summary

material

be tried.

judgment to

facts as

See D.
___

to

statement

of

which there

the

comply

with the

undisputed

memorandum

factual

Henry states in

local

opposing

rule, and

summary

statement with

record

is

he

judgment

facts

to

the

be

See id.
___ ___

his brief that

points out

included

citations.

As a

court deemed

admitted by Henry, as the local rule provides.

On appeal,

concise

Mass. L. R. 56.1.

that non-compliance,

defendants'

provide a

he did

that

his

lengthy

Henry does

not

explain, however, how his factual statement complies with the

-22

requirement of a concise
_______

to which

statement of the material

________

there is a genuine issue.

_____________

statement was

a general and

See id.
___ ___

facts as

Henry's factual

complete background

statement,

spanning seven pages, providing relevant facts whether or not

they were

disputed or

material to the

outcome.

We

error in the district court's application of the

see no

local rule,

therefore we, like the district court, treat the facts as set

forth in the defendant's statement as admitted by Henry.

In

1986,

condominium units

purposes

of

Henry

contamination.

several

in Andover, Massachusetts.1

refinancing

environmental

purchased

consultant

The

the

property,

to

inspect

inspection

In 1989, for

Henry

the

revealed

business

hired

an

property

high

for

levels

of

volatile organic compounds ("VOCs") in the groundwater.

Prior

laundry and dry

from

about

to

Henry's

purchase

cleaning facility had

1960

until

perchloroethylene ("PCE"),

1981,

of

the

property,

operated on the

site

utilizing

VOC,

as a dry cleaning

solvent.

Upon

deposition, the former owner of the laundry conceded that PCE

____________________

1.

In 1981, Cash Energy, Inc., a corporation owned by Henry,

purchased the property and in 1986 converted it into business

condominium

units,

personally and to

transferring
others.

other plaintiffs (except

from

this

completely

action
clear as

units

Cash Energy, Inc.,

1991.

The

what actions

were

to

Henry

and all

Henry individually) were

in November
to

several

the

defaulted

record is
taken by

not
Henry

personally, as opposed to his corporation or others, but that

is

irrelevant

simplicity,

to

we will

the

disposition

recite the

of

facts as

actor unless more specificity is required.

-33

this

appeal.

if Henry

For

was the

sometimes spilled on the

ground during the monthly refilling

of the PCE storage tank.

Adjacent to

Henry's property, the

defendants2 own

a commercial property on which a solvent reclamation business

has

operated

containing VOCs.

since

1969,

handling

That property, too,

industrial

solvents

was contaminated with

VOCs, necessitating an ongoing environmental remediation.

It

is likely that solvents from the defendants' property entered

the groundwater

on Henry's property, accounting

for some of

the VOCs detected in the groundwater.

Henry filed the instant lawsuit in 1990, bringing a

myriad

of

claims

under

the

Response,

Compensation, and

U.S.C.

9601-9675,

Material Release

ch.

the

deadlines,

and

Act

Environmental

("CERCLA"),

Oil and

Prevention and Response Act,

negligence, etc.).

Liability

Massachusetts

21E, and Massachusetts

smoothly.

Comprehensive

common law

The

description

failures

Mass. Gen. L.

did

Henry's

to comply

Hazardous

(nuisance, trespass,

litigation

of

42

not

proceed

missteps,

with

missed

scheduling orders

____________________

2.

The

district court,

in

the order

that Henry

appeals,

granted summary judgement to the following defendants: Melvin

L. Weiner (as Trustee of
Chemical Corp.;
Laidlaw
Solvents

North

Weiner Real Estate Trust);

East

Solvents

Environmental Services,
Reclamation

Corp.).

Inc.

Services,

Service

Inc.;

(formerly North

The roles

of

the

and
East

various

defendants are not germane to the disposition of this appeal,

and we shall
number

of

refer to them

simply as "the

other defendants

were

defendants."

dismissed

from the

A
case

earlier, and are not parties to this appeal.

-44

would fill several pages;

suffice it to say that

the record

suggests a pattern of flagrant non-compliance with deadlines,

orders, and

Henry's

rules.

repeated

On January

31, 1995, as a

discovery violations,

the

sanction for

district court

granted

the

presenting

defendants'

expert

motion

testimony

on

to

preclude

damages.

Henry

Henry

has

from

not

appealed that order.

The defendants moved for summary

1995, arguing,

in

essence, that

Henry would be unable

of his prima
_____

without expert

to prove damages, a

that,

summary judgment

in

light

affidavits

with which

contained

no admissible

in favor of

of

Henry

the

had

evidence

reasonably measure damages.

II.
II.

testimony,

necessary element

facie case under all his claims.

_____

court granted

finding

judgment in March

The district

the defendants,

preclusion

order,

opposed summary

from which

the

judgment

a jury

could

___

ANALYSIS
ANALYSIS
________

On appeal, Henry argues that he can prove damages

without expert testimony, and that therefore summary judgment

was improper.

Henry does

summary judgment without

not argue that

some proof

-55

he could

of damages,

survive

apparently

conceding

that under all of

his causes of

action, he bears

the burden of proving that he suffered recoverable damages.3

We review a

grant of summary judgment

accordance with our usual

30

F.3d at

259.

Federal

de novo, in
__ ____

standard.

See Friction Materials,

___ __________________

Rule

Procedure

of Civil

"mandates the entry of summary judgment,

56(c)

. . . upon motion,

against

a party who fails

to establish the

element

essential to that

party's case,

existence of an

and on

party will bear the burden of proof at trial."

which that

Celotex Corp.

_____________

v. Catrett, 477 U.S. 317, 322 (1986).

_______

Misguidedly,

brief

to

to present

at

In reviewing summary judgment, however, the issue

is

describe the evidence

trial.

not what

Henry

uses

that he

has

compliance

with Fed. R. Civ. P. 56

Rule

opposing

56(e),

summary

allegations or

"the

the summary

may

but rather

judgment

record

in

and D. Mass. L. R. 56.1.

adverse

judgment]

his

to prove at trial,

what Henry

Under

into

of

would be able

Henry might be able

put

much

party

not

denials of the adverse

[i.e.,

rest

the

upon

party

the

mere

party's pleading, but

____________________

3.

We

note

declaratory

that

Henry

judgment

count

has

not

should

addressed
have

whether

survived

his

summary

judgment even without proof of damages.

that the declaratory judgment
the defendant's

It appears, however,

that Henry sought pertained to

liability for damages under

CERCLA, so that

proof of damages may have been critical here as well.

event,
Zannino,
_______
a

Henry has

waived the

issue.

In any

See United States v.

___ ______________

895 F.2d 1, 17 (1st Cir.) ("[I]ssues adverted to in

perfunctory

manner,

unaccompanied

by

some

developed argumentation, are deemed waived."),

494 U.S. 1082 (1990).

-66

effort

at

cert. denied,
_____ ______

the adverse

provided

party's response, by affidavits

in

this

rule,4

must

set

forth

showing there is a genuine issue for trial."

or as otherwise

specific

facts

Fed. R. Civ. P.

56(e).

Henry

the

has asserted

measurement

testimony, he

of fact on any.

of

his

three applicable

damages,

but,

has failed to demonstrate

Each of Henry's

theories for

without

expert

a trialworthy issue

theories -- diminution

of

his property's market value, estimated remediation costs, and

recovery of response costs paid -- require a determination as

to the extent of the harm,

Given the

facts on

if any, caused by the defendants.

the summary

judgment record

here, that

requirement calls for the segregation of damage caused by the

defendants from

damage generated

by the former

on-site dry

cleaning

operation.5

It is

axiomatic that

the defendants

are not liable for damages they did not cause.

The district court held the burden was

isolate the harm caused

by the defendants.

on Henry to

On

appeal Henry

____________________

4.

In

addition to

support

or

depositions,
file.

oppose

summary

answers to

Fed. R. Civ.

judgment,

affidavits,

to

allows a

judgment

with

interrogatories, and

P. 56(c).

cited only

Rule 56

Henry, in

two affidavits,

party to
pleadings,

admissions on

opposing summary
which we

discuss

infra.
_____

5.

The

value

district court
theory

also calls

held that
for

the diminution

segregation

market-wide devaluation of commercial

from

of the

in market
general,

properties in the area

the effect on value of the contamination, but we do not

rely on this in reaching our decision.

-77

does no more than assert that he was not

the

duty

harm, without

citing statutes or

required to isolate

case law.

It is the

of the appellant to show that error has been committed,

and Henry has not done so.

Although the

distinct

require

sources

expert

of

allocation of

damages caused by

groundwater pollution

testimony, we

need

not

would

two

seem

decide that

to

issue

because

record

Henry has failed

any admissible

allocate

the damages.

to put

into the

evidence that

summary judgment

would allow a

Henry supported

jury to

his opposition

to

summary

judgment with his own affidavit and the affidavit of

Stephen

L. Kurz,

statement

segregating

defendants'

the

in

an

these

the

environmental consultant.6

Only

one

affidavits

issue

of

from

the

addresses

contamination

adjacent property

that

the

emanated

from contamination

on-site dry cleaning establishment.

caused by

Henry avers in his

own affidavit that another consultant, ENPRO Services,

"concluded that

the [defendants']

not

a source of

the source of the

property and

Inc.,

solvent contamination was

that [Henry's] property

the contamination."

was

While that conclusion

seems

improbable, credibility

judgment.

is

not at

issue on

summary

But Henry's statement about ENPRO's conclusions is

____________________

6.

Henry

also

submitted with

made

single

citation

the defendants' motion

to

deposition

for summary judgment,

as to a fact not relevant to the allocation of damages issue.

-88

inadmissible

judgment.7

hearsay,

and cannot

See Garside v.
___ _______

(1st Cir. 1990).

be considered

on summary

Osco Drug, Inc., 895 F.2d

_______________

46, 50

Moreover, Henry's statement, without more,

is too conclusory to satisfy the Rule 56(e) requirement

the non-movant

"set forth specific facts

is a genuine issue for trial."

F.3d

28,

improbable

31

(1st

Cir.

inferences,

that

showing that there

See Crawford v. LaMantia, 34

___ ________
________

1994)

("conclusory

allegations,

and

unsupported

speculation"

insufficient to block summary judgment), cert. denied, 115 S.

_____ ______

Ct. 1393 (1995).

Environmental

affidavit

submitted

by

consultant

Henry,

Kurz,

opines

that

in

the

the

other

remedial

measures being implemented on defendants' site are inadequate

to deal with the groundwater contamination, and estimates the

cost

of

a remediation

Henry's and the

plan

that

defendants' properties.

address in any way the issue of

the

defendants'

predecessor,

properly addresses

activities

the dry

Affidavit had addressed the

But Kurz does

not

isolating the harm caused by

from

cleaner.

both

that

In any

caused

by

event, if

Henry's

the Kurz

segregation of off-site damages,

____________________

7.

The

below,

Enpro
but

consulting report

that does

not help

itself is inadmissible hearsay.

of

harms

opinion on

issue,

the

is

itself

Henry.

First,

record

the report

Second, as to the separation

Enpro report

constitutes

damages, inadmissible under

preclusion order.

in the

an

expert

the district court's

-99

it

would

violate

the

court's

order

precluding

expert

testimony on damages.

We hold, therefore, that

absent a showing that the

district court misconstrued the law, Henry failed to meet his

burden on summary judgment to set forth specific facts, which

if believed, would allow a jury to measure the damages caused

by the defendants.

242,

249 (1986).

harm from

operated

See Anderson v. Liberty Lobby,

___ ________
_____________

Henry's failure

that caused

on

site is

by the

fatal to

dry

to isolate

477 U.S.

the off-site

cleaning operation

all three

that

damages measures:

diminution of property value, remediation costs, and response

costs.

Accordingly,

the district

summary judgment is affirmed.

________

court's

order granting

Costs to the appellees.

-1010