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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1527
KNAPP SHOES, INC.,
Plaintiff, Appellant,
v.
SYLVANIA SHOE MANUFACTURING CORPORATION,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]
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____________________
Before
Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Timothy C. Blank with whom Bernard J. Bonn III, Dina Warner and
_________________ ___________________ ___________
Dechert Price & Rhoads were on brief for appellant.
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Joseph B. Green with whom Bennett H. Klein and Kotin, Crabtree &
________________ _________________ _________________
Strong were on brief for appellee.
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February 10, 1994
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BOUDIN, Circuit Judge. Knapp Shoes Inc., the plaintiff
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in this commercial dispute, appeals from the district court's
order dissolving a preliminary injunction. That injunction
had frozen assets of 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 waived by
Sylvania, and that the court's findings were insufficient to
support its action on the alternative ground urged by
Sylvania, we vacate the order dissolving the preliminary
injunction.
I.
Knapp sells work shoes at both the wholesale and retail
levels, including a line of shoes with a patented slip-
resistant rubber sole. Beginning in 1986 or 1987, Knapp
placed orders with Sylvania for the latter to manufacture and
supply Knapp with several different styles of shoes
incorporating Knapp's slip-resistant sole. Knapp intended to
resell the shoes both through its retail outlets and directly
to large customers in the restaurant, hotel and other
industries. Between 1987 and 1989, Sylvania manufactured and
delivered over 250,000 pairs of shoes to Knapp.
Sometime in 1987, Knapp became concerned about the
quality of the shoes manufactured by Sylvania. The primary
problem was the tendency of the sole to separate from the
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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, Knapp filed this diversity action
under Massachusetts law for breach of contract (count 1),
breach of express warranty and implied warranties of
merchantability and fitness (counts 2-4), breach of the duty
of good faith and fair dealing (count 5), fraud and negligent
misrepresentation (counts 6 and 7), and violation of Mass.
Gen. Laws Ann. ch. 93A (count 8).1 The gravamen of all
these claims was that too many of the 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. These
included increased costs of inspection and for handling and
returning defective shoes; lost profits due to Knapp's
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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.
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inability to fill orders for customers; losses due to
Sylvania's refusal to give credit for certain shoes that
Knapp did return or attempted to return; increased costs
because Knapp was forced to make substitute purchases from
other manufacturers; credits and price concessions Knapp had
to 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 answer and counterclaim. The answer
denied virtually all of the incriminating allegations. It
also asserted 13 affirmative defenses, including estoppel,
disclaimer of warranties, unclean hands, laches and
contributory negligence. Sylvania's counterclaim alleged
that Knapp still owed Sylvania about $277,000 for shoe orders
not yet paid (Sylvania also claimed multiple damages and
attorney's fees under Chapter 93A). The counterclaim
suggested that any defects were due to Knapp's own
specification of materials to be used in manufacturing its
shoes.
Both parties consented to proceed before a magistrate
judge and waived a jury trial. The trial was bifurcated,
with the liability phase covering nine trial days in January
1991. At the conclusion 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
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counts, without discussing Sylvania's counterclaim. The
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
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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 prove fraud, negligent
misrepresentation or--"except to the extent that plaintiff
has shown, or can show," a refusal by Sylvania to credit
returned defective shoes--breach of the duty of good faith
and fair dealing. As for Knapp's chapter 93A claim, the
order said that Sylvania had not been shown to have engaged
in conduct so unscrupulous as to make it liable for multiple
damages; it noted, but did not decide, the question whether
attorney's fees might be due Knapp under chapter 93A on the
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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 the damages phase of trial, Knapp
discovered that Sylvania was going out of business and
liquidating its assets. Fearful that Sylvania would soon be
judgment-proof, Knapp obtained a temporary restraining order
precluding Sylvania from dissipating assets in the amount of
$3,775,657.22--the amount of damages that Knapp hoped to
prove in the next phase of the trial. The magistrate judge
modified this order on June 10, 1991, converting it into a
preliminary injunction and amending it to allow Sylvania to
make limited payments to its creditors and lawyers.
The damages phase of trial took place over five days in
June 1991; at Sylvania's behest, an additional day of
evidence was heard on November 25, 1991. Proposed findings
were filed by both sides in March 1992. It appears that
nothing further occurred during the next 12 months until, in
March 1993, the magistrate judge issued an order proposing to
certify certain questions to the Massachusetts Supreme
Judicial Court. Both sides opposed certification, but on
April 8, 1993, the magistrate judge certified two questions
to the Supreme Judicial Court; both related to the possible
application of Chapter 93A to "a simple breach of warranty."2
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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
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In the certification, the magistrate judge prefaced the
two certified questions with a ten-page statement. The
statement repeated the magistrate judge's rulings on the five
counts discussed in its January 31, 1991, order, and then
made several additional findings of fact and conclusions of
law. These determinations were prefaced by a statement that
"only the ultimate findings and conclusions are set forth
herein - not the subsidiary findings and conclusions." The
magistrate judge determined inter alia that:
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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
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of [or credit for] those shoes shown to
be defective and returned - nothing more,
and nothing less [footnote omitted].
2. Because of this clear and
express understanding between the
respective parties, Knapp's sole
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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
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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.
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returned by Knapp; a statement that many of the shoes
returned by Knapp's customers were made by an overseas
supplier; a finding that Sylvania acted in "the utmost good
faith" to correct a problem "not reasonably foreseen" by
either side; and a finding in a final footnote that "at best
. . . approximately three (3) percent of the shoes were
allegedly defective . . . and as to a majority of those
shoes, credit was given to Knapp when those shoes were
returned . . . ."
The Supreme Judicial Court has yet to act on the
questions certified by the district court. But on the
strength of the magistrate judge's findings in the
certification order, Sylvania moved on April 8, 1993, to
dissolve the preliminary injunction. The magistrate judge
granted this motion on May 5, 1993, concluding that its
earlier findings left Knapp with so little hope of
substantial recovery that the freeze on Sylvania's assets
could no longer be justified. 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 judge's order dissolving the
preliminary injunction pending the outcome of this appeal.
We have jurisdiction pursuant to 28 U.S.C. 1292(a)(1),
which permits appeals from interlocutory orders dissolving
injunctions.
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II.
This circuit has not explicitly addressed the standard
to be applied by a district court in deciding whether to
dissolve a preliminary injunction. But we think it evident
that in the ordinary case dissolution should depend on the
same considerations that guide a judge in deciding whether to
grant or deny a preliminary injunction in the first place.
The familiar quartet includes likelihood of success, the
threat of irreparable injury to the party seeking interim
relief, the equities and the public interest.3 It is not
surprising that a fresh look after the trial evidence is in
might produce a different judgment about the probability of
success.
In dissolving the preliminary injunction in this case,
the magistrate judge relied upon his certification findings
that the parties had agreed to limit their remedies under the
contract to return and replacement or credit for defective
shoes. As already noted, the magistrate judge concluded in
finding number 1 that "[b]y 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
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____________________
3See, e.g., Teradyne, Inc. v. Mostek Corp., 797 F.2d 43,
___ ____ ______________ ____________
51 (1st Cir. 1986); Planned Parenthood League of
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Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.
_____________ ________
1981).
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remedy, would be the replacement of [or credit for] those
shoes shown to be defective 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, 2-715
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(buyer's ordinary damages), 7-16 (incidental and
consequential damages), over and above credits for shoes
actually returned to Sylvania, were barred by Mass. Gen. Laws
Ann. ch. 106, 2-719;4 hence, Knapp's likelihood of
substantial recovery was insufficient to support the
preliminary injunction. We need not decide whether a section
2-719 defense was supported by the evidence, because we hold
that Sylvania waived any such limitation of remedies defense
by failing to raise it in a timely fashion.
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4Mass. Gen. Laws Ann. ch. 106, 2-719, pertinently
provides:
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 be
exclusive, in which case it is the sole remedy.
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Fed. R. Civ. P. 8(c) requires a party to affirmatively
plead certain specified defenses, as well as "any other
matter constituting an avoidance or affirmative defense."
Affirmative defenses not so pleaded are waived. See FDIC v.
___ ____
Ramirez-Rivera, 869 F.2d 624, 626 (1st Cir. 1989). We have
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previously held that a statutory provision limiting damages
to a fixed sum constituted an affirmative defense for
purposes of Rule 8(c). Jakobsen v. Massachusetts Port
________ ___________________
Authority, 520 F.2d 810, 813 (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).
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Sylvania failed to raise the defense in its answer, its
amended answer, its pretrial memorandum, or its proposed jury
instructions.5 Indeed, there is no indication that either
of the parties thought that a limitation of remedies issue
was present in the case until the ninth and final day of the
liability phase of trial. At that point, after all of the
evidence had been submitted, the magistrate judge said
"[w]e've got a problem, I think under Section 719(b) of
whether or not . . . the parties agreed that defective
returns, credits for [sic] would be the sole remedy."
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5The parties submitted proposed jury instructions prior
to their waiver of trial by jury and consent to proceed
before the magistrate judge.
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Sylvania does not dispute that the limitation of
remedies is an affirmative defense. Nor does it suggest that
it raised that defense in 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 and a chance to develop evidence and offer
arguments to controvert the defense. Blonder-Tongue
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Laboratories, Inc. v. University of Illinois Foundation, 402
___________________ _________________________________
U.S. 313, 350 (1971). Some courts have excused noncompliance
with Rule 8(c) if "a plaintiff receives notice of an
affirmative defense by some means other than pleadings" and
is not prejudiced by the omission of the defense from the
initial pleading. E.g., Moore, Owen, Thomas & Co. v. Coffey,
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992 F.2d 1439, 1445 (6th Cir. 1993). This court reached the
same result where a defense "has been fully tried under the
express or implied consent of the parties, as if it had been
raised in the original responsive pleading." Ramirez-Rivera,
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869 F.2d at 626-27.
We need not decide whether notice and no prejudice would
also serve as an excuse in this circuit, cf. Jakobsen, 520
__
F.2d at 813 (referring favorably to the no-prejudice test),
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since we find that neither the Coffey nor the Ramirez-Rivera
______ ______________
standard was met here. In the present case, the limitation
of remedies issue was not raised until virtually the end of
the liability trial, after discovery and the submission of
all of the evidence on liability. Nor did the parties'
presentation of witnesses or documents focus on this issue.
Rather, the magistrate judge's ruling seems to have derived
from a fragment of testimony from one witness: a former
Knapp executive named John Esser testified that he had told
the 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 is pretty thin stuff, even coupled with evidence
from other sources that the parties had extensive
arrangements for the return of defective goods in exchange
for credit. The question, after all, is not whether credits
were an available remedy but whether the parties had agreed
that credits were the exclusive remedy. See Mass. Gen. Laws
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Ann. ch. 106, 2-719(1)(b) (quoted in note 4 above). More
to the point, Esser's statement in context was not elicited
by Sylvania to show that credits were the exclusive remedy,
nor did Knapp cross-examine in order to refute such a
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.
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Nor was the issue litigated in the damages phase.
Although in this phase the magistrate judge adverted to the
limitation of remedies issue, his brief remarks suggest not
that it was now open to litigation but rather that the
parties either had or should have addressed the issue in the
liability phase of the trial.6 One can argue as to whether
the limitation of remedies issue is better described as a
liability or a damage issue. But in this case, the issue was
not litigated in the former phase and it would have taken a
fortune teller to suppose that such evidence would be
welcomed in the latter phase.
In sum, we conclude that Sylvania waived the limitation
of remedies defense by failing to assert it in the answer or
by amendment in accordance with Rule 8(c). The defense was
not resurrected either by clear notice given prior to trial
or by actual litigation of the issue in the course of trial.
Thus the limitation of remedies defense is out of the case
and cannot support the order vacating the injunction.
III.
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6On the first day of the damages trial the magistrate
judge, in ruling on an in limine motion by Sylvania to limit
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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 . .
. ."
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Sylvania argues that the order under review may, in the
alternative, be upheld based on the magistrate judge's
finding that only a very small percentage of the shoes
manufactured by Sylvania for Knapp were defective. If only a
very small fraction of the shoes made by 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. After all,
practically all of the types of damage claimed in Knapp's
complaint (and recited above) depend as a practical matter on
the premise that a 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 there are no
supporting findings by the magistrate judge. Fed. R. Civ. P.
52(a) requires that "in granting or refusing interlocutory
injunctions the court shall . . . set forth the findings of
fact and conclusions of law which constitute the grounds of
its action." This requirement, which also attaches to the
court's own final decision in a jury waived trial, id., but
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not to most other rulings, id., reflects the importance of
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injunctions and of providing an adequate basis for their
appellate review.
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Sylvania argues that Rule 52(a) is not applicable to
this case because the rule, by its terms, applies only to
decisions "granting or refusing interlocutory injunctions."
Although there is some general support for Sylvania's
position, see Baltimore & O. R. R. v. Chicago R. & I. R. R.,
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170 F.2d 654, 659 (7th Cir. 1948), cert. denied, 336 U.S. 944
____________
(1949); Munoz v. Porto Rico Ry. Light & Power Co., 83 F.2d
_____ __________________________________
262, 270 (1st Cir.) (construing Equity Rule 70 1/2, the
precursor of Fed. R. Civ. P. 52(a)), cert. denied, 298 U.S.
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689 (1936), both the cases cited involved the district
court's refusal to dissolve a preliminary injunction. We
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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 an existing preliminary injunction
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is quite another matter. It is not only a substantial change
in the status quo but is the effective equivalent of a denial
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of a preliminary injunction, an event that unquestionably
triggers Rule 52(a)'s requirement of findings. We do not
think that it stretches Rule 52(a) unduly 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.
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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 offered by Sylvania,
namely, the small percentage of defective shoes. The
magistrate judge did not rely at all on Sylvania's
alternative ground. Instead, in a footnote sentence at the
close 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 Rule 52(a). We have said
that "conclusory findings" are not enough, Thermo Electron
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Corp. v. Schiavone Construction Co., 915 F.2d 770, 773 (1st
_____ __________________________
Cir. 1990), but also that "the ``judge need only make brief,
definite, pertinent findings and conclusions upon the
contested matters; there is no necessity for over-
elaboration of detail or particularization of facts.'"
Applewood Landscape & Nursery Co. v. Hollingsworth, 884 F.2d
__________________________________ _____________
1502, 1503 (1st Cir. 1989). The difficulty in devising a
yardstick is not surprising when one considers the great
diversity of disputes governed by the rule.
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In the abstract, one might or might not describe as
"conclusory" a magistrate judge's statement that the shoes
delivered by Sylvania to Knapp had a defect rate of about
three percent: the statement is specific and concrete, but
unexplained. In truth, pinning a label like "ultimate" or
"conclusory" on a single sentence is not very helpful; Rule
52(a) calls for a level of detail adequate to permit
________
appellate review on factual issues, and what is adequate
depends on the importance of an issue, its complexity, the
depth and nature of evidence presented, and similar elements
that vary from case to case. See generally Kelley v.
_____________ ______
Everglades Drainage District, 319 U.S. 415, 420 (1943).
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Here the percentage of defects is critically important.
Of course, the magistrate judge could not know that his own
basis for dissolving the injunction would be set aside and
that Sylvania would rely on the percentage finding to support
the dissolution order. But to the extent that the three
percent finding is proffered by Sylvania as a foundation for
the dissolution order, it must meet the test of Rule 52(a).
For this purpose, the importance of the issue requires more
rather than less detail.
In this case there is no detail whatever. We do not
know how the magistrate judge defined "defect," a disputed
issue at trial, nor how he arrived at the three percent
figure, nor how he handled Knapp's claim that the percentage
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of shoes actually returned to Sylvania greatly understated
the percentage of defects.7 On all of these issues there is
no indication as to why certain witnesses were credited, what
data was used or how it was construed, or why competing
evidence was rejected. We are thus unable to make a reasoned
judgment whether, on this critical issue of defects, the
magistrate judge's finding was or was not "clearly
erroneous." Fed. R. Civ. P. 52(a).
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 dissolution of the
preliminary injunction (it is Sylvania who is trying to make
the finding play that role). 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 entry of the interlocutory order that
forms the basis of this appeal and over two years prior to
the present decision. We 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.
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case for further findings with respect to the district
court's order dissolving the preliminary injunction. In our
view, the energies of both 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 a new motion to
dissolve the preliminary injunction. But unless it can show
some urgent need for the release of the funds, we would
expect the magistrate judge to refuse summarily to revisit
the preliminary injunction until the final decision is
issued. Knapp's case was once thought to have enough merit
to justify an injunction; as yet there 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 the magistrate judge is ready to issue his
decision on the merits. If not, the magistrate judge may
think that the wiser course, in litigation that has otherwise
been ripe for resolution at least since March 1992, is to
decide the whole case and make his best conjecture on the
chapter 93A issues.
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One final issue remains. In the order vacating the
preliminary injunction, the magistrate judge also dissolved
the attachment on trustee process. An attachment on trustee
process is an interim remedy that was used here to prevent
certain persons owing funds to Sylvania from disbursing them
to Sylvania, in effect protecting funds that might be used to
satisfy a judgment for Knapp. See Mass. Gen. Laws. Ann. ch.
___
246 1; Fed. R. Civ. 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 that the dissolution of the attachment
is not equivalent to the dissolution of a preliminary
injunction and is not an appealable event. Knapp argues that
the attachment is appealable, citing Teradyne, Inc. v. Mostek
_____________ ______
Corp., 797 F.2d 43, 44-47 (1st Cir. 1986), but we see no
____
reason to resolve this issue. The magistrate judge's
rationale for dissolving both the injunction and the
_________
attachment was the same. As we have found that rationale to
constitute legal error, we assume that the magistrate judge
will on his own motion maintain the attachment in force
unless and until there is a proper basis for modifying.
Sylvania says that the funds under the attachment have
been earning no interest for two years. If the funds are
unequivocally owing to Sylvania, there should be an easy
means for dealing with this problem (e.g., by an arrangement
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transferring the funds to an interest bearing account subject
to the attachment). Nothing in this opinion prevents
Sylvania from applying to the magistrate judge for a
modification of the attachment to address this or any other
problem pertaining to the attachment.
The magistrate judge's order dissolving the preliminary
injunction is vacated.
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Document Info
Docket Number： 93-1527
Filed Date： 2/15/1994
Precedential Status： Precedential
Modified Date： 9/21/2015