USCA1 Opinion

March 2, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 92-1196
FRANK B. ABBADESSA,
Plaintiff, Appellant,
v.
MOORE BUSINESS FORMS, INC.,
Defendant, Appellee.
_____________________
No. 92-1197
ROBERT D. MARIOTTI,
Plaintiff, Appellant,
v.
MOORE BUSINESS FORMS, INC.,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
___________________
____________________

Before
Selya, Circuit Judge,
_____________
Higginbotham,* Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________

James H. Shulte with whom Burns, Bryant, Hinchey, Cox & Schul
_______________
_____________________________________
P.A. was on brief for appellants.
____
Edward M. Kaplan with whom William D. Pa.ndolph and Sullo
_________________
_____________________
_____
Hollis & Soden were on brief for appellee.
______________
____________________
March 2, 1993
____________________
_____________________
*Of the Third Circuit, sitting by designation.

Higginbotham, Senior Circuit Judge.

Higginbotham, Senior Circuit Judge.

This is an appeal

____________________
from

an order of summary

judgment in favor

of defendant, Moore

Business Forms, Inc., and

against plaintiffs, Frank B. Abbadessa

and

Abbadessa and Mariotti

Robert D. Mariotti.

wrongful

termination of

judgment,

arguing that

writing

at the time of

any claims arising from

employment.
each

employment.
Abbadessa

Moore

moved for

and Mariotti

their termination to

sued Moore for

summary

each agreed

in

release Moore from

plaintiffs' employment or termination of

Plaintiffs opposed

the motion for summary judgment,

alleging that the agreement to release their claims against

Moore had been signed under economic duress.

The United
New

Hampshire,

States district

applying

summary judgment motion as

court, in separate

Hampshire

law,

District of

granted

Moore's

to both Abbadessa and Mariotti.

orders, found, as a matter

if Abbadessa and Mariotti

under duress,

New

court for the

The

of law, that even

had signed their respective agreements

each also subsequently ratified

failing to repudiate them promptly and

the agreements by

by accepting the benefits

that flowed under the agreements.

Because we
their respective

agree that Abbadessa

resignation

agreements,

and Mariotti ratified

we

will

affirm

district court's orders of summary judgment in favor of Moore.

-33

the

This

is a

citizens
its

diversity action.
of New Hampshire.

Both

Abbadessa and

Mariotti are

Moore is a Delaware corporation with

principal place of business in Illinois.

The district court

had subject matter jurisdiction pursuant to 28 U.S.C.

have appellate jurisdiction pursuant to 28 U.S.C.

1332.

We

1291.

I
Frank B. Abbadessa
__________________
Frank B.
Moore

Abbadessa began working as

an accountant for

Business Forms, Inc. in December 1973.

By 1988, Abbadessa

had advanced to the managerial position of Comptroller of Moore's

Locust
1988,

Street plant
in a

Manager

of

in Dover,

On

January 19,

meeting between Abbadessa,

R.J. Barth,

the General

the

and

Locust

New Hampshire.

Street plant,

Brian

Groves,

the

Director of Human Resources,

Moore requested Abbadessa to resign

and

agreement.

to

sign a

agreement,
benefits
in

the

Moore

resignation
would

provide Abbadessa

Under
with

the resignation
the

following

from January 19, until April 30 1988: (1) compensation

amount

of $4,611.75

vacation owed Abbadessa for

per

month;

(2)

payment for

any

1988; (3) continued participation in

Moore's Healthcare
with an option to

plan, Dental Plan, and

Group Insurance Plan,

extend participation after April 30,

Abbadessa made quarterly

payments; and (4) payment

1988, if

by Moore for

-44

outplacement counseling services

other employment.
Moore released
arising

to assist Abbadessa

in finding

The agreement also provided that Abbadessa and

each other from

from Abbadessa'

any other claims

employment

with,

or obligations

and termination

by,

Moore.
Moore
resign

informed Abbadessa

because

Further, Moore

his
made

performance
clear to

resign with

the benefits

resign

face

and

benefits.

during the January 19

two

weeks

and,

had not

Abbadessa

provided under

the possibility

Abbadessa did

in

not

meeting.
early

that he

of

sign

was being
been

satisfactory.

that he
the

being

could

not

fired without

any

the resignation

he

either

agreement or

He considered the

February,

asked to

returned

agreement

agreement for
it

signed,

backdated to January 20.

During the interval between the January

19 meeting and

in early

agreement,
Moore.
Abbadessa

the time

Abbadessa sought
Moore
signed

apparently
the

Abbadessa, he finally

February when

payment

of his

refused to

pay

resignation

vacation pay
any

agreement.

signed the agreement

he signed

the

from

benefits until
According

to

because his lack

of

financial resources left him no other choice.

On May 27, 1988,
payment of

Abbadessa requested that Moore extend

the benefits provided under the

which had expired

on April

30, 1988.

January 18 agreement

Abbadessa requested

the

-55

extension because he had

and

had run out

not been able to find

of money.

Moore agreed to

other employment

extend benefits to

Abbadessa for one more month and amended the January 18 agreement
to

reflect that

under the

Abbadessa would

original agreement

receive the

through May

benefits provided

31, 1988.

Abbadessa

signed

the amended agreement and

dated it June

6, 1988. Toward

the

end of June 1988, Abbadessa again requested that Moore grant

him

a further

extension

provide Abbadessa

of his

benefits.

Moore

agreed to

with benefits covering half the month of June.

Finally, in July Abbadessa made one more request for extension of

his benefits.

This time Moore refused.

Robert D. Mariotti
__________________
Robert Mariotti
in

December 1970.

managerial

position

Street plant.
Barth

On

began working as a

By

1988,

Mariotti

of

Operations Manager

May 24, 1988, in

had

salesman for Moore

advanced
for

to

the

Moore's Locust

a meeting between

Mariotti,

and Groves, Moore requested Mariotti to resign and to sign

a resignation agreement similar to the one presented to Abbadessa

on

January 18, 1988.

those
August

paid to

The agreement provided similar benefits as

Abbadessa

and covered

the period

of May

24 to

31, 1988: (1) compensation in the amount of $5,296.60 per

month; (2) payment for

any vacation owed Mariotti for

-66

1988; (3)

continued
and

participation in Moore's Healthcare Plan, Dental Plan,

Group Insurance Plan, with an option to extend participation

after August 31,

(4)

1988, if Mariotti made

payment by

Moore

for outplacement

assist Mariotti in finding other

provided that
other claims

quarterly payments; and

Moore and Mariotti

counseling services

employment.

The agreement also

released each

or obligations arising

to

other from

from Mariotti's

any

employment

with, or termination by, Moore.

As with Abbadessa, Moore
being

asked

to

satisfactory.
resigning

resign because
Mariotti was

with

benefits

or

terminated without benefits.

for

two days,

Mariotti

Mariotti

claimed that

pressure

and that,

informed Mariotti that he was

his

also presented with

facing the

had not

been

the choice

possibility

of

of

being

After thinking about the agreement

returned it
he signed

being aware

Moore, he understood that

performance

signed

on May

26,

1988.

the agreement

under financial

of Abbadessa's

experience with

he would receive no benefits

until he

signed the agreement.

Procedural Background
_____________________
On September 21, 1988,
counsel for Moore
without

cause

in

Abbadessa and Mariotti wrote to

that "they believed

violation

of the

they had been

established

terminated

policies

and

-77

procedures

of

Moore and

that they

resignation under

duress."

Mariotti

brought

separate

contract

against

Moore

Superior

Court.

alleged

that

employees

New

Plaintiffs,

Moore

April

actions

in

issued

signed the
11, 1989

for

in

their

written

Abbadessa

breach

Hampshire's

letters of

of

employment

Strafford

separate

policies,

and

County

complaints,

providing

that

would not be terminated except for cause and then only

after being made aware of

and

On

had

given

the

According to

deficiencies in their job

opportunity

to

plaintiffs, these

enforceable employment

correct

performance

those

deficiencies.

written policies

constituted an

contract under

New Hampshire

Moore breached

by terminating plaintiffs without

without giving

plaintiffs the opportunity to

law, which

just cause and

correct what Moore

deemed to be deficiencies in their job performance.

On May 5, 1989, both actions were removed to the United

States district

court

for

the District

of

New

Hampshire

on

Moore's

petition pursuant to 28 U.S.C.

1989, Moore moved for summary

Abbadessa and Mariotti.
upon

which

employees

would not

replaced by

argued that

Mariotti

be terminated

The new

the written

relied,

both

policy

which stated

that

cause, had

been

except for

a subsequent policy issued

of employment.

On September 9,

judgment as to the claims of

Moore

Abbadessa and

1441.

during plaintiffs' terms

policy did not

provide that

employees

-88

would

not

be

maintained,

terminated except

there

existed

no

between plaintiffs and Moore.

from

any

and

all

cause.

enforceable

As such,

Moore

employment contract

In any event, Moore continued, the

resignation agreements signed by

Moore

for

Abbadessa and Mariotti released

liability

arising

from

plaintiffs'

employment with, or termination by, Moore.

Abbadessa and Mariotti opposed the motions for
judgment.

They

change of policy.

argued that
They also

they never received

summary

notice of

the

argued that they never received any

consideration for the new policy, and that New Hampshire law does
not

permit

an employer

to

unilaterally

employment to the detriment of an

consideration to the employee.
released any

right to

modify conditions

of

employee in the absence of new

As to Moore's claim that they had

sue, Abbadessa

and Mariotti

argued that

their respective resignation agreements were invalid because they

had signed the agreements under economic duress.
On October 25, 1989,

the district court denied Moore's

motion for summary judgment as to Mariotti.

the

court

Abbadessa.
motions.
judgment

denied

Moore's motion

The court employed

According to
presented

personnel policy

for

On November 7, 1989,

summary

judgment as

the same reasoning

the court,

three issues:

to deny both

Moore's motions
(1)

to

for summary

whether Moore's

represented an enforceable contract;

initial

(2) if it

-99

was

an

enforceable

contract, whether

it

was

amended by

the

subsequent policy; and (3)

whether Abbadessa and Mariotti signed

their respective resignation agreements under duress.

Moore's

motions, the

court concluded

involved genuine issues of

that all

In denying

three questions

material fact which would have

to be

decided at trial.1
On
summary
1991,

August

Moore renewed
This

Mariotti had
had

repudiate
under

1991,

Moore renewed

its

motion

for

judgment as to Abbadessa, and the next day, on August 21

Mariotti.

they

20,

its

motion

time, Moore

signed their

the

agreements.

by

summary

argued that even

judgment

the

agreements

accepting all
Abbadessa and

as

if Abbadessa

resignation agreements

subsequently ratified
promptly and

for

to

and

under duress,
by failing

benefits that
Mariotti,

flowed
a

joint

memorandum, raised

three grounds

summary judgment.

First, plaintiffs argued that the doctrine of

the

case"

"law

of

the

considering Moore's
that

Moore

had

to defeat Moore's

in

to

precluded

renewed motions.
not

pleaded

the

the

district

Second,

motions for

court

from

plaintiffs argued

affirmative

defense

____________________
1The case

of Robert Mariotti v. Moore Business Forms was

__________________________________________
originally assigned to Judge Loughlin, while the case of
Abbadessa v. Moore Business Forms was assigned to Judge
____________________________________
Devine. Subsequent to the denial of Moore's first motions
for summary judgement, both cases were reassigned to Judge
Stahl's calendar.
-1010

of

ratification in its answer or in its original motions for summary

judgment and that, pursuant to Rule 8(c) of the Federal
Civil Procedure, an
waived.
issues

affirmative defense which is

Finally, plaintiffs maintained that

of material

fact

as to

whether

Rules of

not pleaded is

there were genuine

they were

capable

of

ratifying the resignation agreements.

On

January 9, 1992, in

two separate orders, the court

granted Moore's motion for summary

Mariotti.
"waiver

The court
of

rejected plaintiffs' "law of the

unpleaded

concluded that,

judgment as to Abbadessa

affirmative

under New

ratified their respective

defense"

case" and

arguments,

Hampshire law, plaintiffs

and

and

had indeed

resignation agreements and that

Moore

was entitled to summary judgment as a matter of law.

Abbadessa and
grounds

that

Mariotti now appeal, raising

were before

the

district

court.

two of the

Specifically,

plaintiffs maintain that the "law of the case" doctrine precluded

the district

court

summary judgment,
fact

as

from ruling

on Moore's

renewed motion

for

and that there were genuine issues of material

to whether

plaintiffs

were capable

of

ratifying the

resignation agreements.

II

-1111

Our review
judgment

is

plenary.

Property with Bldgs,

___________________
56 motion for summary
no genuine
entitled

of the district court's

orders for summary

United States v. One Parcel of Real

________________________________________
960 F.2d 200, 204 (1st Cir.

1992).

judgment will only be granted if

A Rule

there is

issue as to any material fact and the moving party is

to

judgment

as a

matter

of

law.

Celotex Corp. v.
_________________

Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
_______
In a diversity action the substantive law
state determines

which facts

of the forum

are material. Anderson v. Liberty

____________________

Lobby, Inc.,
____________
substantive
issues

law

of

will

material

respective
question

477 U.S.

242, 248

(1986).

determine if
fact

as to

of

precluded

whether

the

of

from

the

ruling

New Hampshire
raised

they

But first,

the doctrine

district court

plaintiffs

whether

resignation agreements.

Here,

"law

genuine

ratified

their

we turn

to the

of the

on Moore's

case"

renewed

motion for summary judgment.

A.

Under the doctrine of the "law of the case", a decision

on

an issue of

becomes a binding

law made

by the

court at one

precedent to be followed

of the same

litigation except in

WOKO, Inc.,
__________

329 U.S.

223 (1946);

-1212

stage of

a case

in successive stages

unusual circumstances. FCC v.

_______

U.S. v. Rivera-Martinez, 931

________________________

F.2d 148,

151 (1st Cir. 1991)

35, 38 (1st Cir. 1990).

Piazza v. Aponte Roque,

______________________

1B J. Moore, Federal

909 F.2d

Practice

0.404[1]

(1980).
Here, the
motions

district court,

for summary

in denying

judgment, decided

Moore's initial

that there

were genuine

issues of material fact as to whether Abbadessa and Mariotti were

under

such

economic

duress

at

the

time

they

resignation agreements as to render the agreements

signed

the

voidable.

In

its renewed motions for summary judgment, Moore argued that, even
if

Abbadessa and Moore signed

economic

duress

which

the agreements under

would render

the

the sort of

agreements

voidable,

Abbadessa and Mariotti had nonetheless ratified the agreements by

their

subsequent conduct.

The issue

Mariotti ratified the agreements is

did

of whether

Abbadessa and

one which the district court

not consider, much less decide, in ruling on Moore's initial

motions for summary judgment.

We have stated in this circuit that the doctrine of the

"law

of

the

case" "merely

generally to refuse to
F.2d at

38.

summary

judgment

Accordingly,

The issue

the

was

expresses

the

practice

open what has been decided."

raised in
never

district

Moore's renewed

decided
court

-1313

by
was

of courts

Piazza, 909
______

motions for

the

district

not

precluded

court.

from

considering

whether

Abbadessa

and

Mariotti

ratified

their

respective resignation agreements.

B.
In

New

Hampshire,

contracts

signed

under

economic

duress are voidable. King Enterprises v. Manchester Water Works,

___________________________________________
122

N.H. 1011,

453

A.2d

1276

(1982);

Cheshire Oil Co. v.

______________________

Springfield Realty Corp., 118 N.H. 232, 385 A.2d 835 (1978).
_________________________

In

the words of the Supreme Court

of New Hampshire: "the payment of

money

contract

or

the

making

of

circumstances of business necessity

might

be

under

such

or compulsion as will render

the

same involuntary and entitle the party so coerced to recover

the

money

paid or

excuse

him from

performing

the contract."

Cheshire Oil Co., 385 A.2d at 838.

________________
In order to be
a

party relying on a

"excused" from performing the contract,

theory of business

duress must demonstrate four elements.

compulsion or economic

First,

the party relying

on economic
another.
the

"It must appear

pressure applied and

Id. at
___
519,

duress must have involuntarily accepted the terms of

that consent was
would not have

been given otherwise."

839, quoting Morrill v. Bank, 90

_______ ________________
525 (1939).

actually induced by

N.H. 358, 365,

9 A.2d

Second, "the coercive circumstances must have

been the result of the acts of the opposite party."

Cheshire Oil
____________

-1414

Co.,
___

385 A.2d

wrongful."

Id.
___

"although the
violation
must
of
Id.

of a

at

839.
An

act or

Third, "the

act or

pressure

threat of

threat is not

contractual duty."

an

must have

act may

be wrongful

criminal or tortious
Id.
___

been

or in

Fourth, "circumstances

have permitted no other alternative but to accept the terms

another if there is to be

a finding of business compulsion."

Thus, if the party relying on the theory

of economic duress

___
"had a legal

remedy adequate

to redress or

compensate for

injury threatened, the threat will not amount to duress."

Given the
are, as
fact

above definition

the district

as

to

elements

court found, disputed

whether

of duress.

Abbadessa and
Specifically,

light most

favorable to plaintiffs,

"coercive

circumstances"

resignation
Abbadessa

agreements
and

until

whether

issues of
satisfied

looking at the

Moore

the

acts

the choice given by

resigning with benefits or

of

of"

created

It is

Moore to Abbadessa

the

Moore.

"coercive

negotiate any of the terms

the agreement.

four

whether the

signing

result of

that

material

facts in the

it is disputed
the

Id.
___

duress, there

withholding benefits plaintiffs were

they signed

without benefits

"the

claim

circumstances" by refusing to

to

Moore

surrounding

were

Mariotti

agreements and by

of economic

the

of the

entitled

further disputed

and Mariotti of

not resigning and risking termination

was "wrongful."
-1515

Abbadessa and

Mariotti claim

that Moore's bargaining position was wrongful because it was done

in

bad faith.

Mariotti

It

is finally

Abbadessa and

were left with "no other alternatives but to accept the

terms" proposed by Moore.

were not fully aware of
to them at
them

disputed whether

the time

to resign.

Abbadessa and Mariotti claim that they

any internal appeal procedures available

they were presented

They also claim

with the requests

for

that they were in no financial

or mental shape to begin court actions.

Therefore,
that Abbadessa

assuming for

purposes of

and Mariotti signed the

summary judgment

agreements under duress,

the question now becomes whether Moore is nonetheless entitled to

judgment

as

a matter

of

law

because Abbadessa

and

Mariotti

ratified the agreements by their subsequent actions.

In

New Hampshire,

voidable

contracts are

subject to

ratification. Sawtelle v. Tatone, 105 N.H. 398, 201 A.2d 111, 115
__________________
(1964).

Since a

voidable it is also
never

executed under

have been ratified.

deemed to

executed under

subject to ratification.

specifically identified

contract

avoid

contract

economic
New

the circumstances

economic duress

will be

Hampshire has
under which

when the party who

considered to

But generally, a voidable contract

have been ratified

duress is

will be

is entitled to

the contract "does any act which amounts to a ratification

after full

knowledge of

all the

-16-

facts and

circumstances." Id.
___

16

Acts amounting to ratification

benefits

of the contract

promptly.
stated:

Id. 2
___
"A

rescinded at

and failure to

As the

Supreme Court

party cannot treat

of the

repudiate the contract

of New

the contract

Hampshire has

as binding and

as

the same time, and after he has elected to stand by

the contract and receive

thus ratified

are payment or acceptance

and

the benefits it confers on him, and has

confirmed

it, he

cannot

thus

rescind

and

repudiate it." Bechard v. Amey, 82 N.H. 462, 471, 136 A. 370, 375
_______________
(1926).

Here, both Abbadessa and Mariotti sought to treat their

resignation
time."

agreements as

Both accepted the

them and neither attempted

"binding

and rescinded

benefits the agreements

at the

same

conferred on

to repudiate the agreements promptly.

____________________
2See also Hillside Assoc. of Hollis, Inc. v. Maine Bonding &
________ __________________________________________________
Casualty Co., 135 N.H. 325, 605 A.2d 1026 (1992) (voidable

_____________
insurance contract between insurance agent and construction
company based on mutual mistake was not ratified when
insurance company promptly notified construction company of
mistake); Derouin v. Granite State Realty, Inc., 123 N.H.
_______________________________________
145, 148, 459 A.2d 231, 233 (1983) (voidable land sale
contract based on mutual mistake was ratified because
purchaser had performed significant improvements to property
and
property could
not
be returned
to seller
in
substantially the same condition in which purchaser received
it); Michael v. Rochester, 119 N.H. 734, 736, 407 A.2d 819,
____________________
821 (1979) (city ratified initially invalid construction
contract for building a water main when it failed to notify
the contractor before construction was complete that it
intended to repudiate contract); Lucier v. Manchester, 80
_____________________
N.H. 361, 363, 117 A. 286, 287 (1922) (acceptance of
services of attorney by city amounted to ratification of
invalid employment contract).
-1717

Abbadessa considered
it.

After

his

expired, Abbadessa

the agreement for two

benefits under
requested that

three separate occasions.

and refused

to extend

weeks before signing

the January

19 agreement

Moore extend him

had

benefits on

Moore acceded to two of these requests

added benefits

on Abbadessa's

third and

final

request.

Abbadessa
benefits

treated

the agreement

as

1988

until

binding

Moreover,

April

1988,

by accepting

from April

the

1988 until

original agreement by

separate requests that Moore

extend benefits which

owed under the agreement.

refused

notified

February

Abbadessa further ratified the

making three

had

from

Moore had promised.

June 1988,

were not

So,

additional extensions

Moore's

counsel by

of

benefits

letter in

signed the agreement under duress.

had filed his

It was not until after Moore

July

that Abbadessa

1988 that

he had

Finally, even after Abbadessa

suit against Moore, at no point

did he attempt to

return to Moore the benefits of the agreement which he now claims

he signed under duress.
Similarly,
days

before

signing

Mariotti continued
Even after
1988

Mariotti considered
it.

From

had

1988

to receive the benefits

Mariotti supposedly

that he

May

signed the

his agreement

wrote to
agreement

until August

for two

1988,

under the agreement.

Moore Counsel
under the

in July

duress,

he

continued to received the benefits under the agreement for August

-1818

1988.

As with Abbadessa,

Moore, at no

even after having

point did Mariotti

benefits of the

filed suit against

attempt to return to

agreement which

he now claims

Moore the

he signed

under

duress.
The Supreme Court of New

Hampshire has written that "a

person seeking to rescind cannot treat the contract

as rescinded

and binding at

at 115.

the same time."

Sawtelle, 201 A.2d

________

By

accepting the benefits of their respective resignation agreements

and by failing
repudiate

Moore promptly that

the agreements,

agreements as
treat the

to notify

binding.

agreements as

Abbadessa

After having
rescinded.

and

they intended

Mariotti treated

done so, they

That, under

to

the

now wish to

New Hampshire

law, they may not do.

Abbadessa and

Mariotti argue that they

the agreements

until

after

could not have

possibly

ratified

the duress

removed.

Since, according to Abbadessa and Mariotti, they signed

the agreements under duress because basically, by

resign, Moore caused them to
understand plaintiffs'
been

removed when

straits.

they were

But, as we stated

asking them to

be in desperate need for money,

argument to

mean that duress

no longer

in such

was

we

would have

dire financial

at the outset of our discussion, the

issue in this case is whether appellants raised genuine issues of

material

fact

as

to

whether they
-19-

ratified

their

respective

19

agreements.
issues

of material

removed
they

another

way: whether

they raised

genuine

fact that

the claimed

duress had

not been

between the time they signed the agreements and the time

brought this action.

facts
that

Stated

to that effect.
appellants

agreements,
(disputed
lasted;
ceased.3

the

and

benefits

Mariotti

or

undisputed) about

or put

another way,

Having

to raise any

While Moore has advanced undisputed facts

accepted

Abbadessa

Appellants have failed

how

if and

failed to satisfy

of

have
long

their
offered

respective
no

the economic

when their

facts

duress

claimed duress

their burden of

production,

____________________
3We should also point out that we have found no authority
that New Hampshire has adopted or would adopt the theory
that a contract signed under economic duress is capable of
being ratified only after the duress is removed.
The only
case from this circuit addressing the issue is Ismert and
__________
Associates, Inc. v. New England Mutual Life Insurance Co.,
___________________________________________________________
801 F.2d 536 (1st Cir. 1986).
In that case, this circuit
considered an action brought by a tax consulting service
firm against an insurance company. The firm argued that the

agreement it had signed, releasing the insurance company

from any claims resulting from the firm's loss of business
opportunities, was unenforceable because it was obtained
under duress. Judge Maletz authored the majority opinion as
well as a dissent. In his dissent on the issue of economic
duress, Judge Maletz wrote that "there can be no affirmance
[of a contract] unless the duress has ended." Ismert and
___________
Associates, 801 F.2d at 548. Judge Breyer, writing for the
__________
majority on the question of duress, did not address the
issue of whether a contract signed under duress is not
capable of being ratified until the duress has ended.
Instead, Judge Breyer found that plaintiff had not made a
sufficient showing that it signed the release agreement
under duress. Id..
In Ismert, this circuit was applying
___
______
Massachusetts law. Thus, the decision is not controlling in
this case involving New Hampshire law.
Moreover, the
-2020

their argument necessarily fails.

Elec. Co.,
_________

950 F.2d 816, 822 (1st

summary judgment motion

See,
___

e.g., Mesnick v. General

____ __________________

Cir. 1991) (where opponent of

"bears the ultimate burden

of proof, he

must present definite, competent evidence" sufficient to document

a factual disagreement over some issue of material fact).

For the
judgment
Forms,

foregoing reasons, we will

affirm the summary

orders of the district court in favor of Moore Business

Inc.,

and

against

Frank

B.

Abbadessa and

Robert

Mariotti.

Affirmed.
________

____________________
statement of Judge Maletz that "there can be no affirmance
unless duress has ended", cannot even be used as persuasive
authority in this case given that it was not adopted by a
majority of the panel.
-2121

D.