Casas v. Mita ( 1994 )


Menu:
  • UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 94-1067
    CASAS OFFICE MACHINES, INC.,
    Plaintiff, Appellee,
    v.
    MITA COPYSTAR AMERICA, INC., ET AL.,
    Defendants, Appellants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Gilberto Gierbolini, U.S. District Judge]
    Before
    Torruella, Circuit Judge,
    Campbell, Senior Circuit Judge,
    and Boudin, Circuit Judge.
    Ricardo  F.  Casellas,  with  whom  Mario  Arroyo,  and   Fiddler,
    Gonzalez & Rodriguez, were on brief for appellants.
    Luis  A. Melendez-Albizu, with whom Luis Sanchez-Betances, Sanchez
    Betances & Sifre,  Nilda M. Cordero de Gomez, and Jorge E. Perez-Diaz,
    Federal Litigation Division, United States Department of Justice, were
    on brief for appellee.
    December 14, 1994
    CAMPBELL, Senior Circuit  Judge.  Mita Copystar  of
    America, Inc.  ("Mita")  appeals from  the  district  court's
    order  granting  summary  judgment  and  issuing  a permanent
    injunction in favor of Casas Office Machines, Inc. ("Casas").
    The  action began  when Casas  sued Mita  and two  fictitious
    defendants,  John Doe and Richard Roe,  in the Superior Court
    of Puerto Rico,  San Juan Part.  Organized  under the laws of
    California  and with its  principal place of  business in New
    Jersey, Mita removed the action to the United States District
    Court for the District of Puerto Rico.  After removal, Casas,
    by  an amendment  to its  complaint, replaced  the fictitious
    defendants with  two named defendants, Caguas  Copy, Inc. and
    Oficentro  J.P., Inc.,  which,  like Casas,  are Puerto  Rico
    corporations.  Complete diversity  of citizenship between the
    parties was thus destroyed, although this fact was not called
    to  the district court's attention at the time.  The district
    court  proceeded to deny  Mita's motions  to dismiss  and for
    summary  judgment,  and  it  allowed  Casas's  motion  for  a
    permanent injunction enjoining Mita from impairing a contract
    entered into with Casas.  Now, for the  first time on appeal,
    Mita  points out  the  jurisdictional problem  caused by  the
    addition of the nondiverse  parties.  Mita asks us  to vacate
    the judgment below and order the district court to remand the
    action  to  the Superior  Court of  Puerto  Rico.   Mita also
    attacks the district court's  decision on the merits, arguing
    -2-
    that  summary judgment  was  improper and  that the  district
    court erred in granting the permanent injunction.
    I.
    Incorporated   in  Puerto  Rico,  Casas  sells  and
    distributes   office  and  photocopying   equipment  in  that
    Commonwealth.  In 1983, Casas entered into an  agreement with
    Mita,  a supplier  of office  and photographic  equipment, to
    distribute Mita products in Puerto Rico.  As noted, Mita is a
    California  corporation with its  principal place of business
    in  New  Jersey.   Following  a period  of  strained business
    relations, Casas and Mita executed a second agreement in 1989
    (the "1989 Agreement") granting  Casas the exclusive right to
    distribute Mita's  products in  the "Greater San  Juan" area.
    Paragraph  5 of  the 1989  Agreement, however,  provided that
    Casas's inability to meet or exceed 85% of a set  sales quota
    would result in termination  of the exclusivity provisions of
    the contract.  Asserting that Casas had failed to achieve the
    85% threshold, Mita terminated Casas's exclusive distribution
    rights      but  retained  Casas  as  a  distributor      and
    designated  two new  distributors in  the "Greater  San Juan"
    area.
    Casas responded on February 1, 1991, by suing Mita,
    John  Doe, and Richard Roe1  in the Superior  Court of Puerto
    1.  Paragraph 3 of Casas's complaint said:
    -3-
    Rico,  San  Juan  Part.   Casas  alleged  that  (1) Mita  had
    deprived  Casas of its  exclusive distribution rights without
    just cause  in violation of P.R.  Laws Ann. tit. 10,     278-
    278d 91976) (referred to in the complaint and hereinafter  as
    "Law 75"), (2)  defendants had conspired to  deprive Casas of
    its  right to sell and distribute Mita products, (3) Mita had
    impaired  Casas's exclusive  distribution agreement,  and (4)
    defendants   had   intentionally   interfered  with   Casas's
    contractual relationship with Mita.  Casas sought preliminary
    and permanent injunctive relief, as well as monetary damages.
    Alleging the existence  of diversity  jurisdiction,
    Mita removed the  action to the United  States District court
    for  the  District   of  Puerto  Rico   on  March  6,   1991.
    Thereafter, Casas amended its  complaint twice.  An amendment
    Codefendants John Doe and Richard Roe are
    fictitious   names   used  to   refer  to
    defendants  whose  names  are unknown  at
    present.  Said defendants are the natural
    persons and/or  corporate and/or judicial
    entities  who  together  with  MITA  have
    conspired,   with    knowledge   of   the
    contractual relationship between MITA and
    Casas,  to  deprive  the latter  of  said
    contractual  relationship,  directly  and
    indirectly interfering therewith, causing
    the  damages  hereinafter  itemized.   To
    plaintiff's     best    knowledge     and
    understanding, John Doe  and Richard  Roe
    are   citizens   and  residents   of  the
    Commonwealth of Puerto Rico and  are also
    liable  to  plaintiff  pursuant   to  the
    allegations mentioned hereinafter.
    (emphasis added).
    -4-
    filed  on March 9, 1992, added a fifth count,2 and eliminated
    Casas's  request  for a  preliminary  (but  not a  permanent)
    injunction.  By a second motion  to amend, brought on May 14,
    1992, Casas sought to  replace the fictitious defendants with
    Caguas  Copy,   Inc.  ("Caguas")  and  Oficentro  J.P.,  Inc.
    ("Oficentro")    the corporations that Mita had designated as
    new  distributors   in  the   Greater  San  Juan   area  upon
    terminating Casas's exclusive distribution rights.  Paragraph
    3 of Casas's Second Amended Complaint read:
    Codefendants   Caguas   Copy,  Inc.   and
    Oficentro    J.P.,    Inc.   are,    upon
    information    and   belief,    corporate
    entities organized pursuant  to the  laws
    of the Commonwealth  of Puerto Rico, with
    Principal offices located  at Suite  B-3,
    Goyco  Street #  10,  Caguas,  P.R.,  and
    Diamante  Street  #  24,   Villa  Blanca,
    Caguas,   P.R.,   respectively.      Said
    defendants   are  the   corporate  and/or
    judicial entities who together  with MITA
    have  conspired,  with  knowledge of  the
    contractual relationship between MITA and
    Casas,  to  deprive  the latter  of  said
    contractual  relationship,  directly  and
    indirectly interfering therewith, causing
    the  damages  hereinafter  itemized.   To
    plaintiff's     best    knowledge     and
    understanding,  Caguas   Copy,  Inc.  and
    Oficentro  J.P.,  Inc.  are citizens  and
    residents of the  Commonwealth of  Puerto
    Rico  and  are also  liable  to plaintiff
    pursuant  to  the  allegations  mentioned
    hereinafter.
    2.  Count Five  alleged  that defendants  had  illicitly  and
    tortiously contracted  for the distribution of  Mita products
    in Puerto Rican  territories in which Mita had  granted Casas
    the exclusive right to distribute its products.
    -5-
    (emphasis  added).  Four days  later, on May  18, 1992, Casas
    moved the  district  court for  an  expedited review  of  its
    second  motion  to amend  its  complaint.   Such  review  was
    necessary,  said  Casas,  because  Oficentro  was  under  the
    protection  of the  United  States Bankruptcy  Court for  the
    District  of  Puerto  Rico      which  had  ordered that  all
    creditors file their  proof of  claims on or  before June  8,
    1992    and Casas could  not file a proof of claim  until its
    motion to  amend was  granted.   The  district court  allowed
    Casas's second amendment in early June 1992.
    In   the  meantime,  Mita  had  moved  for  summary
    judgment  on February 12, 1992.  It argued primarily that (1)
    Mita did  not impair its contractual  relationship with Casas
    because  it merely enforced its rights under the terms of the
    1989  Agreement, (2) even if it were found that Mita impaired
    its contractual relationship with  Casas, Mita had just cause
    to do so,  and (3) Casas's suit  was barred by the  equitable
    doctrine  of laches.  On March 16, 1992, Casas opposed Mita's
    motion for  summary judgment, and brought  a cross-motion for
    partial interlocutory  summary judgment on its  Law 75 claims
    (Counts One and Three), renewing  its request for a permanent
    injunction.3  Mita,  in turn,  filed, on April  13, 1992,  an
    3.  In  its  original  complaint,  Casas  had  requested  the
    district court to
    issue  a   permanent  injunction  against
    Mita,  ordering it  [(1)]  to  cease  and
    -6-
    opposition to Casas's  cross-motion for  summary judgment  in
    which   it  maintained,  inter   alia,  that   (1)  permanent
    injunctive  relief is  not available  under Law  75, and  (2)
    ordering permanent  injunctive relief  in this case  would be
    unconstitutional.   Finally, in  a separate motion,  filed on
    June 4, 1992, Mita sought to dismiss Casas's complaint on the
    grounds that Casas had engaged in a fraud upon the court.
    The United States magistrate judge  reviewed Mita's
    motions  to dismiss  and  for summary  judgment,  as well  as
    Casas's cross-motion for summary  judgment.  In a  report and
    recommendation  issued on  September 2, 1993,  the magistrate
    judge concluded that (1) Casas had not committed fraud on the
    court, (2) Casas  was not  barred by the  doctrine of  laches
    from pursuing its claims under Law  75, (3) Mita did not have
    just  cause  under  Law  75 to  terminate  Casas's  exclusive
    distribution rights because it failed to demonstrate that the
    quota provision in the 1989  Agreement was reasonable at  the
    desist  from  continuing  with  the  acts
    which constitute impairment of  the terms
    of the distribution relationship existing
    between  it and  Casas,  . .  . [(2)]  to
    abstain   from   appointing,    choosing,
    designating   or   arranging  for   other
    additional    distributors   and/or    in
    substitution  of Casas[,] and . . . [(3)]
    to   abstain   from  terminating   and/or
    altering  the  distribution  relationship
    existing   between    both   parties   or
    performing any act or omission whatsoever
    in  impairment  thereof, all  pursuant to
    the provisions of Law 75.
    -7-
    time of Casas's  nonperformance, (4)  a permanent  injunction
    may be  ordered under Law 75,  and (5) Mita  had impaired its
    contractual  relationship  with  Casas.    Consequently,  the
    magistrate judge  recommended that  the  district court  deny
    Mita's motions to dismiss and for summary judgment, and grant
    Casas's cross-motion for summary judgment.
    In  its opinion  and  order filed  on November  18,
    1993,  the  district  court  adopted all  of  the  magistrate
    judge's  recommendations,  thereby  granting  Casas's  cross-
    motion  for summary judgment on its Law 75 claims (Counts One
    and  Three).4    Casas   Office  Machines  v.  Mita  Copystar
    Machines, 
    847 F. Supp. 981
    , 983 (D.P.R. 1993).  In a judgment
    entered  the  same  day,  the district  court  denied  Mita's
    motions  to dismiss  and  for summary  judgment, and  granted
    Casas's motion for  an injunction permanently enjoining  Mita
    from  impairing  the  1989  Agreement  without  just  cause.5
    Mita,  pursuant to  28 U.S.C.    1292(a)(1)  (1988),6 appeals
    4.  The district court did  not decide Counts Two, Four,  and
    Five of Casas's complaint, and, to our knowledge, they remain
    unresolved.
    5.  The district  court emphasized  in its opinion  and order
    that  it  was  not  placing Mita  in  involuntary  servitude.
    According  to  the  district  court, Mita  could  impair  its
    contractual relationship with Casas in the future if it could
    demonstrate just cause for doing so.
    6.  Section 1292(a)(1) provides in relevant part:
    [T]he  courts  of   appeals  shall   have
    jurisdiction of appeals from:
    -8-
    from this interlocutory  decision.  Mita argues  principally:
    (1) that diversity jurisdiction  was defeated when Caguas and
    Oficentro were substituted for the fictitious defendants; (2)
    that  the district court improperly entered summary judgment;
    and (3) that the district court improperly issued a permanent
    injunction.
    II.
    Before  we  reach  the  issue   of  subject  matter
    jurisdiction,   we  respond  to   Casas's  challenge  to  our
    appellate jurisdiction.   Casas maintains  that, under Carson
    v. American  Brands, Inc., 
    450 U.S. 79
    , 
    101 S. Ct. 993
    , 
    67 L. Ed. 2d 59
     (1981), jurisdiction  under   1292(a)(1)  does not
    exist  unless the  appellant demonstrates  that the  district
    court's interlocutory  order "might  have a  serious, perhaps
    irreparable,  consequence,  and   that  the   order  can   be
    effectually challenged  only by immediate appeal."   
    450 U.S. at 84
     (internal  quotations omitted).   According  to Casas,
    Mita  has  failed to  satisfy  these  requirements.   Casas's
    argument is not well taken.
    (1)  Interlocutory orders  of
    the  district   courts  of  the
    United States . . ., or of  the
    judges    thereof,    granting,
    continuing, modifying, refusing
    or  dissolving injunctions,  or
    refusing to  dissolve or modify
    injunctions,  except  where   a
    direct review may be had in the
    Supreme Court.
    -9-
    The  Supreme  Court  has  said  that     1292(a)(1)
    provides appellate  jurisdiction  over two  types of  orders:
    those "that grant  or deny injunctions and  [those] that have
    the practical  effect of granting or  denying injunctions and
    have   ``serious,   perhaps   irreparable,   consequence[s].'"
    Gulfstream Aerospace Corp. v.  Mayacamas Corp., 
    485 U.S. 271
    ,
    287-88,  
    108 S. Ct. 1133
    , 
    99 L. Ed. 2d 296
      (1988) (quoting
    Carson,  
    450 U.S. at 84
    ).    Thus,  courts  of appeals,  in
    determining whether they have appellate jurisdiction  under
    1292(a)(1), must, in the first instance, decide "``whether the
    order appealed  from  specifically  [granted  or]  denied  an
    injunction or merely had the  practical effect of doing so.'"
    Morgenstern  v. Wilson,  
    29 F.3d 1291
    ,  1294 (8th  Cir. 1994)
    (quoting  Kausler v.  Campey,  
    989 F.2d 296
    ,  298 (8th  Cir.
    1993)).   If the  interlocutory order in  question "expressly
    grants or denies  a request for injunctive relief, the Carson
    requirements  need not be  met and  the order  is immediately
    appealable as  of right under   1292(a)(1)."  Morgenstern, 
    29 F.3d at 1294-95
     (observing that the  majority of the circuits
    agree with  this principle, and citing  cases); see Feinstein
    v.  Space Ventures, Inc., 
    989 F.2d 49
    , 49 n.1 (1st Cir. 1993)
    (accepting  appellate  jurisdiction under     1292(a)(1), and
    noting the distinction between "an interlocutory  order which
    has the incidental effect of denying [or granting] injunctive
    relief" and an order that "clearly and directly grant[s] a[n]
    -10-
    .  . . injunction").  On the  other hand, "if an order merely
    has  the   practical  effect   of  granting  or   denying  an
    injunction,  the Carson  . .  . test[s]  must be  satisfied."
    Morgenstern, 
    29 F.3d at 1295
    .
    Here, the district court's order  expressly granted
    Casas's motion for an  injunction barring Mita from impairing
    the 1989 Agreement without  just cause.  Casas, 
    847 F. Supp. at 990
    .  Accordingly, for the reasons discussed, the district
    court's  order was  immediately appealable  as of  right, and
    Mita  was not required to satisfy the Carson criteria.  Thus,
    we  have appellate jurisdiction.  We now consider our subject
    matter jurisdiction.
    III.
    Mita  argues  that  there   is  no  subject  matter
    jurisdiction in federal  court because complete diversity  of
    citizenship was destroyed when the fictitious defendants were
    replaced with  Caguas and Oficentro after  removal.  Although
    Mita raises this  issue for the first time  on appeal, we are
    obliged  to  address  it   because  a  defense  of   lack  of
    jurisdiction over  the subject matter is  expressly preserved
    against waiver by Fed.  R. Civ. P. 12(h)(3).   E.g., Halleran
    v. Hoffman, 
    966 F.2d 45
    , 47  (1st Cir. 1992).  Casas responds
    that, diversity jurisdiction, once established at the time of
    removal,  could not be lost by  replacement of the fictitious
    defendants with Caguas  and Oficentro, which  Casas describes
    -11-
    as   nondiverse,  dispensable  parties.    Alternatively,  if
    jurisdiction  was  indeed  defeated  by  the substitution  of
    Caguas and Oficentro after removal,  Casas asks us to restore
    it, nunc  pro  tunc,  by  dismissing  the  diversity-spoiling
    defendants without prejudice.
    A.
    This   case   involves    no   federal    question.
    Jurisdiction stands or  falls upon diversity of  citizenship.
    It has long been settled that a "lack of ``complete diversity'
    between   the  parties   deprives   the  federal   courts  of
    jurisdiction over the lawsuit."  Sweeney v. Westvaco Co., 
    926 F.2d 29
    , 41 (1st Cir.) (citing Strawbridge v. Curtiss, 7 U.S.
    (3 Cranch)  267, 
    2 L. Ed. 435
     (1806)), cert.  denied, 
    112 S. Ct. 274
    , 
    116 L. Ed. 2d 226
     (1991).    There was  complete
    diversity between  the parties on  March 6,  1991, when  Mita
    removed the case  to federal  court: Casas is  a Puerto  Rico
    corporation,  and Mita  was  incorporated in  California  and
    maintains  its principal  place  of business  in New  Jersey.
    That  the fictitious  defendants, John  Doe and  Richard Roe,
    might reside in Puerto Rico     as suggested by Casas in  the
    original  complaint      was properly  disregarded  under  28
    U.S.C.    1441(a)  (1988), which  provides in  relevant part:
    "For purposes of removal . . ., the citizenship of defendants
    sued  under fictitious  names shall  be disregarded."   After
    removal,  however, Casas  replaced the  fictitious defendants
    -12-
    with Caguas  and Oficentro, which were  clearly identified as
    Puerto  Rico corporations, like  Casas itself.   The issue is
    whether  this  substitution,  which unquestionably  destroyed
    complete  diversity, also  defeated  federal  subject  matter
    jurisdiction.  We hold that it did.
    Casas  argues that  as  diversity jurisdiction  was
    established at the commencement of the proceeding, it was not
    later defeated by the mere naming of  the fictitious parties,
    who were  dispensable,  not indispensable.   E.g.,  Freeport-
    McMoRan  Inc. v. K N Energy, Inc.,  
    498 U.S. 426
    , 428, 
    111 S. Ct. 858
    , 
    112 L. Ed. 2d 951
     (1991) (per curiam) (holding that,
    because  there  was  complete   diversity  when  the   action
    commenced,  diversity jurisdiction  was not  defeated by  the
    addition   of  a   nondiverse   plaintiff,   which  was   not
    indispensable);  Wichita R.R.  &  Light Co.  v. Public  Util.
    Comm'n, 
    260 U.S. 48
    ,  54, 
    43 S. Ct. 51
    , 
    67 L. Ed. 124
     (1922).
    Under the general principle reflected in the above cases, the
    existence of  federal jurisdiction here might  seem to depend
    simply upon whether Caguas  and Oficentro were dispensable or
    indispensable parties.   But "[f]ederal courts  are courts of
    limited  jurisdiction,  and  .  . .  may  exercise  only  the
    authority  granted to  them  by Congress."   Commonwealth  of
    Mass. v. Andrus,  
    594 F.2d 872
    , 887 (1st  Cir. 1979);  e.g.,
    Owen Equip. & Erection Co.  v. Kroger, 
    437 U.S. 365
    ,  374, 
    98 S. Ct. 2396
    ,  
    57 L. Ed. 2d 274
      (1978)  ("The limits  upon
    -13-
    federal jurisdiction, whether imposed by  the Constitution or
    by  Congress,  must  be  neither  disregarded nor  evaded.").
    Thus,  specific legislative  directives override  the general
    principles  announced  in  these  cases, e.g.,  28  U.S.C.
    1367(b) (Supp. V 1993)  (supplemental jurisdiction).7   Here,
    as  we explain  below,  Congress has  indicated that  federal
    diversity jurisdiction is defeated so long as, after removal,
    fictitious defendants  are  replaced with  nondiverse,  named
    defendants,   regardless  of  whether   they  happen   to  be
    dispensable or indispensable to the action.
    As part of the  Judicial Improvements and Access to
    Justice  Act of  1988, Pub.  L. No.  100-702, 
    102 Stat. 4669
    (1988), Congress  enacted 28  U.S.C.   1447(e)  (1988), which
    provides:
    If after removal the plaintiff seeks
    to   join  additional   defendants  whose
    joinder  would   destroy  subject  matter
    jurisdiction, the court may deny joinder,
    7.  Under 28 U.S.C.    1367(b), for instance, federal courts,
    sitting   in   diversity,   "shall   not   have  supplemental
    jurisdiction . . . over claims  by plaintiffs against persons
    made  parties under  Rule 14,  19, 20,  or 24 of  the Federal
    Rules of Civil  Procedure . . . when  exercising supplemental
    jurisdiction over such claims  would be inconsistent with the
    jurisdictional requirements of section 1332."  This  statute,
    which  refers expressly  to  both  compulsory and  permissive
    joinder, "does not allow joinder of additional parties if  to
    do  so would defeat the rule of complete diversity."  Charles
    A. Wright,  Law of Federal Courts    9, at 38  (1994).  Thus,
    where Congress has specifically  so provided, the addition of
    nondiverse,   dispensable   parties  will   defeat  diversity
    jurisdiction,  even if  such  jurisdiction has  already  been
    established at the start of the federal proceeding.
    -14-
    or permit joinder  and remand the  action
    to the State court.
    Although  this provision  relates expressly  to joinder,  the
    legislative history  to the Judicial Improvements  and Access
    to  Justice Act of 1988 indicates that   1447(e) applies also
    to the identification of fictitious defendants after removal.
    H.R.  Rep.  No. 889,  100th  Cong.,  2d  Sess. 72-73  (1988),
    reprinted in 1988  U.S.C.C.A.N. 5982, 6033  ("Th[e] provision
    also  helps  to identify  the  consequences  that may  follow
    removal of a case with unidentified fictitious defendants.");
    e.g.,   Lisa   Combs    Foster,   Note,   Section   1447(e)'s
    Discretionary Joinder and  Remand: Speedy  Justice or  Docket
    Clearing?, 
    1990 Duke L.J. 118
    , 121, 132  ("[I]f after removal
    the plaintiff  identifies the  Doe defendant as  a nondiverse
    party, then pursuant to section 1447(e)  the court may either
    deny joinder or permit joinder and remand.").
    Federal  courts  and  commentators  have  concluded
    that,  under     1447(e),  the  joinder  or  substitution  of
    nondiverse  defendants  after   removal  destroys   diversity
    jurisdiction,   regardless   whether   such  defendants   are
    dispensable or indispensable to the action.  E.g., Yniques v.
    Cabral,  
    985 F.2d 1031
    ,  1034  (9th  Cir. 1993);  Washington
    Suburban Sanitary Comm'n v.  CRS/Sirrine, Inc., 
    917 F.2d 834
    ,
    835 (4th Cir. 1990);  Rodriguez by Rodriguez v.  Abbott Lab.,
    
    151 F.R.D. 529
    ,  533  n.6  (S.D.N.Y.  1993);  Vasilakos  v.
    Corometrics  Medical  Sys.,  Inc.,  No.  93-C-5343,  1993  WL
    -15-
    390283,  at *1-2 (N.D. Ill. 1993); Righetti v. Shell Oil Co.,
    
    711 F. Supp. 531
    , 535  (N.D. Cal.  1989); David  D. Siegel,
    Commentary  on 1988 and 1990 Revisions of Section 1441, in 28
    U.S.C.A.   1441 (1994) (observing that when a plaintiff moves
    to substitute a nondiverse,  named defendant for a fictitious
    defendant, "the  plaintiff will meet the  new subdivision (e)
    of   1447, which leaves it entirely to the court to determine
    whether to refuse the addition and keep the case or allow the
    addition  and then  remand  the  case  for  want  of  federal
    jurisdiction  (caused by  the  loss of  diversity)"); Foster,
    Note, supra, at 121 ("Significantly, section 1447(e) does not
    require  the  court,  in  considering whether  joinder  of  a
    nondiverse party should be permitted to deprive the court  of
    jurisdiction,    to   determine   whether    the   party   is
    ``indispensable'  to  the  action  according to  Federal  Rule
    19(b).  Unlike  the approach under the Federal Rules, joinder
    of  a  non-indispensable  party  can  deprive  the  court  of
    jurisdiction.").   We  find these  decisions persuasive.   We
    conclude that diversity jurisdiction  was lost in the present
    case  when the court allowed Casas to identify the fictitious
    defendants as Caguas and Oficentro.
    Section 1447(e)'s legislative history supports this
    conclusion.   In  enacting    1447(e), Congress  considered a
    proposal  that  would have  allowed  the  joinder of  certain
    nondiverse  parties  and, at  the  same  time, permitted  the
    -16-
    district  court,  in its  discretion,  to keep  the  case and
    decide it  on the merits.  H.R. Rep. No. 889, 100th Cong., 2d
    Sess.  72-73 (1988),  reprinted  in 1988  U.S.C.C.A.N.  5982,
    6033-34 ("The  most obvious alternative [to    1447(e)] would
    be to provide that  ``the court may deny joinder,  dismiss the
    action,  or permit  joinder  and either  remand to  the state
    court  or  retain  jurisdiction.'");  see  David  D.  Siegel,
    Commentary on 1988 Revision of Section 1447, in 28 U.S.C.A.
    1447  (1994);  Foster,  Note,  supra, at  137-38.    Congress
    rejected  the  proposal,  however,  because  it  would   have
    represented  a "departure from the traditional requirement of
    complete diversity," and "provide[d]  a small enlargement  of
    diversity jurisdiction."  H.R. Rep. No. 889, 100th Cong.,  2d
    Sess.  72-73 (1988),  reprinted  in  1988 U.S.C.C.A.N.  5982,
    6033-34.   We think that,  had Congress decided  that federal
    courts   could  retain  jurisdiction   over  cases  in  which
    plaintiffs  joined  or  substituted  dispensable,  nondiverse
    defendants  after removal, it would have made that plain in
    1447(e).
    This is not to say that it is unimportant whether a
    nondiverse  defendant  whom  a  plaintiff seeks  to  join  or
    substitute after removal  is dispensable or indispensable  to
    the action.  If the  defendant is indispensable, the district
    court's choices are limited to denying joinder and dismissing
    the action pursuant  to Fed. R. Civ. P. 19,  or else allowing
    -17-
    joinder and remanding the case to the state court pursuant to
    1447(e).  See Yniques, 
    985 F.2d at 1035
    .  If, on the other
    hand, the  defendant is  dispensable, the district  court has
    the options, pursuant  to   1447(e),  of denying joinder  and
    continuing  its  jurisdiction  over the  case,  or permitting
    joinder  and  remanding the  case to  state court.8   
    Id.
       A
    district  court may not, however, do what the court below did
    here, that is,  substitute the  nondiverse, named  defendants
    for  the fictitious defendants     thereby  defeating federal
    diversity jurisdiction    and then continue  to deal with the
    merits of the dispute.
    B.
    Although diversity jurisdiction  was defeated  when
    Caguas  and Oficentro  were  substituted  for the  fictitious
    defendants  after  removal,  jurisdiction could  be  restored
    retroactively  in  appropriate circumstances,  if  Caguas and
    Oficentro were  dispensable parties, by  dismissing them from
    the action.   In  Newman-Green, Inc. v.  Alfonzo-Larrain, 
    490 U.S. 826
     
    109 S. Ct. 2218
    , 
    104 L. Ed. 2d 893
      (1989), the
    Supreme  Court held that  federal courts of  appeals have the
    authority    like that  given to the district courts  in Fed.
    8.  "[A] district court, when confronted with an amendment to
    add  a  nondiverse  nonindispensable  party, should  use  its
    discretion  in deciding  whether to  allow that  party to  be
    added."   Hensgens v.  Deere & Co., 
    833 F.2d 1179
    , 1182 (5th
    Cir.  1987)  (describing  factors that  district  courts  may
    consider in deciding whether or not to permit the addition of
    dispensable, nondiverse parties).
    -18-
    R. Civ. P. 21     to dismiss dispensable,  nondiverse parties
    to  cure defects in diversity jurisdiction.  
    490 U.S. at
    832-
    38.  Casas asks us to  exercise this power here by dismissing
    Caguas and Oficentro without prejudice.
    Courts  may not,  of course,  dismiss indispensable
    parties  from   an  action  in  order   to  preserve  federal
    jurisdiction.    But,  contrary   to  Mita's  assertions,  we
    conclude that Caguas  and Oficentro are dispensable  parties.
    Mita's principal  contention is that  Casas is barred  by the
    doctrine of judicial estoppel  from asserting that Caguas and
    Oficentro are dispensable parties  because Casas, in a motion
    requesting relief from the automatic stay, represented to the
    United  States Bankruptcy  Court for  the District  of Puerto
    Rico  that Oficentro  is  an indispensable  party.   In  that
    motion, Casas argued in the bankruptcy court that:
    2.   Creditor  CASAS wishes  to duly
    serve process, litigate and try the above
    mentioned  lawsuit  in the  U.S. District
    Court  against Debtor  [(Oficentro)], and
    the other defendants [(Mita  and Caguas)]
    before a  jury.  If CASAS  is not allowed
    to  serve process and litigate its claims
    against    Debtor,    CASAS   would    be
    effectively   precluded  from   obtaining
    recovery under  its tortious interference
    and  contract  in   prejudice  of   third
    party's claims,  due  to  a  lack  of  an
    indispensable   party.     Concomitantly,
    CASAS'  constitutional  right  to have  a
    trial by jury on all its  legally tenable
    claims would be impaired.
    (emphasis added).
    -19-
    While  this  assertion is  manifestly at  odds with
    Casas's present  position, we  are disinclined under  all the
    circumstances to find that it  created an estoppel.  Judicial
    estoppel is a judge-made doctrine designed to prevent a party
    who  plays "fast  and  loose with  the  courts" from  gaining
    unfair   advantage  through   the   deliberate  adoption   of
    inconsistent positions  in successive suits.   See Scarano v.
    Central R.R. Co., 
    203 F.2d 510
    , 513 (3d Cir. 1953).  Here, it
    does not appear that Casas succeeded in gaining any advantage
    as a result of its earlier inconsistent statement made to the
    bankruptcy  court.  While the court granted Casas's motion to
    lift  the stay,  it  did so  on  grounds other  than  Casas's
    representation  that Caguas and Oficentro were indispensable.
    Mita  itself does  not  allege  that  it  relied  on  or  was
    prejudiced by the statement in any way.  There is the further
    fact that Mita  has played as "fast  and loose" as  has Casas
    with the issue of  subject matter jurisdiction.  It  was Mita
    the party now seeking remand to the Commonwealth courts
    that removed the  case here.   After  the fictitious  parties
    were identified, it made no effort to remand.  Only after the
    district court ruled against it  did Mita decide that federal
    jurisdiction  was a mistake.   We conclude that  Casas is not
    estopped from taking the position it adopts now.  See Milgard
    Tempering, Inc.  v. Selas Corp.,  
    902 F.2d 703
    , 716-17  (9th
    -20-
    Cir. 1990); 18  Charles Wright et  al., Federal Practice  and
    Procedure   4477, at 781 (Supp. 1994).9
    Mita  next argues  that  Caguas and  Oficentro  are
    indispensable  parties  under   a  Federal  Rules   of  Civil
    Procedure  19(b)  analysis.   It  submits  that, because  the
    permanent  injunction  compels  it  to  resume  an  exclusive
    distribution relationship with Casas  in the Greater San Juan
    area,   Caguas's  and   Oficentro's  contractual   rights  to
    distribute  Mita  products  in  that  area   are  necessarily
    canceled.   Moreover, Mita points out that Casas is seeking a
    declaratory judgment decreeing Mita's distribution agreements
    with  Caguas  and  Oficentro  null and  void.    Under  these
    circumstances, says  Mita, this action cannot  "in equity and
    good conscience" proceed without  Caguas and Oficentro, which
    are entitled to protect their contractual interests.   We are
    not persuaded.  A leading commentator writes:
    When  a  person is  not  a  party to  the
    contract  in litigation and has no rights
    or obligations under that  contract, even
    though  he may have  obligated himself to
    abide by the result of the pending action
    by another contract that is not at issue,
    he   will   not   be   regarded   as   an
    indispensable   party   in   a  suit   to
    determine obligations  under the disputed
    9.  We agree with  Casas that International Travelers  Cheque
    Co.  v. Bankamerica  Corp., 
    660 F.2d 215
    ,  223-24 (7th  Cir.
    1981) is distinguishable.   In that case, the  district court
    had expressly relied on plaintiff's previous statement that a
    party  was indispensable.  There was no such reliance in this
    case.
    -21-
    contract, although he may be a Rule 19(a)
    party to be joined if feasible.
    7  Charles A. Wright et al., Federal Practice and Procedure
    1613, at  199-200 (1986) (footnotes omitted)  (citing cases);
    see Ferrofluidics Corp. v. Advanced  Vacuum Components, Inc.,
    
    968 F.2d 1463
    , 1472  (1st Cir.  1992) ("``[I]t  is generally
    recognized  that a person does not become indispensable to an
    action to  determine rights  under a contract  simply because
    that  person's   rights  or  obligations  under  an  entirely
    separate  contract will  be  affected by  the  result of  the
    action.'" (quoting  Helzberg's Diamond Shops, Inc.  v. Valley
    West Des Moines Shopping  Ctr., Inc., 
    564 F.2d 816
    ,  820 (8th
    Cir.  1977) (explaining the  rationale for the  rule))).  The
    present  case fits  within  this principle.    As to  Casas's
    request for  declaratory judgment,  Casas,  in its  appellate
    brief,   "voluntarily   relinquishes   its   request   for  a
    declaratory judgment seeking the  annulment of [Caguas's] and
    [Oficentro's] dealership agreements."
    Although the  only claims  before us on  appeal are
    those alleging violation of  Law 75, we note that  Caguas and
    Oficentro are  similarly dispensable parties  with respect to
    the remaining claims.   In each of the remaining  claims, the
    defendants  are  alleged  to  be  joint  tortfeasors  or  co-
    conspirators and are thus  jointly and severally liable.   It
    is   well-established   that   joint   tortfeasors   and  co-
    conspirators are generally  not indispensable  parties.   See
    -22-
    Goldman, Antonetti, Ferraiuoli, Axtmayer &  Hertell v. Medfit
    Int'l, 
    982 F.2d 686
    , 691 (1st Cir. 1993); 7 Charles Wright et
    al., Federal Practice and Procedure   1623, at 346-47 (2d ed.
    1986) ("[C]o-conspirators, like other joint tortfeasors, will
    not be deemed indispensable parties.")
    That Caguas  and Oficentro are dispensable  to this
    action does not,  in and of  itself, compel their  dismissal.
    While the Supreme Court held in Newman-Green that "the courts
    of  appeals  have  the  authority to  dismiss  a  dispensable
    nondiverse  party," 
    490 U.S. at 837
    , it  "emphasize[d] that
    such authority should be exercised sparingly," 
    id.
      The Court
    explained:  "the appellate  court  should carefully  consider
    whether the  dismissal of  a nondiverse party  will prejudice
    any  of the parties  in the litigation.   It may  be that the
    presence  of  the   nondiverse  party  produced  a   tactical
    advantage for  one party or another."   
    Id. at 838
    .   In this
    context, Mita  argues that Casas gained  a tactical advantage
    by  Caguas's and  Oficentro's  presence in  the case  because
    Casas was able to obtain financial and business records under
    Federal Rules of Civil Procedure 33(a) and 34(a), which apply
    expressly  to parties.  We do not agree, however, with Mita's
    suggestion that these records  would have been beyond Casas's
    reach  had  Caguas  and  Oficentro  not  been  designated  as
    parties.  Under Fed. R. Civ.  P. 34(c), "A person not a party
    to  the  action may  be  compelled to  produce  documents and
    -23-
    things  or to  submit to  an inspection  as provided  in Rule
    45."10
    Thus, neither  Casas nor Mita  gained a significant
    tactical advantage by the presence of Caguas and Oficentro in
    the lawsuit.  Nevertheless, we  are concerned that Caguas and
    Oficentro could  themselves face prejudice if  dismissed from
    this   suit.     Caguas   and   Oficentro,  while   initially
    characterized as John Doe  and Richard Roe, were contemplated
    as  parties  to  this litigation  from  the  start,  and have
    actively participated in  it since  June of  1992, when  they
    were  substituted for  the  fictitious defendants.   Had  the
    jurisdictional  defect been  called to  the  district court's
    attention at that point, the district court would have either
    dismissed  Caguas and  Oficentro  from  this action,  thereby
    requiring Casas  to sue  them separately in  the commonwealth
    court,  or joined them to  this action, thereby remanding the
    entire  case to the  commonwealth court.   Either way, Caguas
    and Oficentro  would have had their liability determined in a
    single proceeding.   Instead,  because of the  jurisdictional
    oversight, dismissal  of Caguas  and Oficentro at  this stage
    could subject them to a new lawsuit before a new judge in the
    Superior Court of Puerto Rico.
    10.  Mita baldly  asserts that  Casas could not  have secured
    under Rule 45 the documents and information it obtained under
    Rules  33 and 34.   Mita fails, however,  to explain why this
    would be so.
    -24-
    In  Newman-Green, there  was a  similar difficulty.
    The problem there was  remedied by terminating the litigation
    against the dismissed defendant with  prejudice.  
    490 U.S. at 838
    .   A similar remedy may be  appropriate in this case.  We
    note,  however, that  Newman-Green presents  a  stronger case
    than  this  one  for  dismissing the  nondiverse  party  with
    prejudice,  since  the  nondiverse  party in  that  case  had
    already  had its  claim  adjudicated by  the district  court.
    Here, by  contrast, Caguas  and Oficentro  have  not yet  had
    their claims adjudicated by  the district court.   Since this
    case is closer than  the case in Newman-Green and  since this
    issue  has not been argued by  either party, we think it best
    to allow it to be decided initially by the district court, on
    remand, where the parties will have an opportunity to present
    their arguments.
    Accordingly, we dismiss  Caguas and Oficentro  from
    this action to preserve  jurisdiction but direct the district
    court, on remand, to  determine whether the injury to  Caguas
    and Oficentro  from being  dismissed from this  proceeding is
    such  that  their dismissal  should  be  ordered  to be  with
    prejudice to any further suit by Casas.  Caguas and Oficentro
    having  been  dismissed, complete  diversity is  restored per
    Newman-Green, and we retain subject matter  jurisdiction over
    the claims between Casas and Mita.
    IV.
    -25-
    Having  disposed of  the jurisdictional  issues, we
    come to the merits of Mita's appeal.  This appeal, of course,
    is interlocutory, see note 6,  
    supra,
     being taken solely from
    the  granting  of  the  injunction  against  Mita.    But the
    injunction  can  stand only  if  the  court properly  awarded
    summary judgment.  We accordingly confront the merits of that
    ruling.
    On summary judgment, we review the district court's
    decision de novo.   Velez-Gomez  v. SMA Life  Assur., Co.,  
    8 F.3d 873
    , 874-75 (1st Cir.  1993).  A  court of appeals will
    uphold summary  judgment only  if the record,  viewed in  the
    light most favorable to the nonmovant, reveals that there are
    no genuine issues  of material  fact and that  the movant  is
    entitled to  judgment as a matter  of law.  Celotex  Corp. v.
    Catrett, 
    477 U.S. 317
    , 324-25, 
    106 S. Ct. 2548
    , 
    91 L. Ed. 2d 265
     (1986).
    Mita's primary  argument is that  genuine issues of
    material fact  preclude the  granting of summary  judgment to
    Casas on its Law  75 claims.  Specifically, Mita  argues that
    genuine issues  exist as  to: (1) whether  Mita impaired  its
    contract  with Casas and (2) whether Mita had "just cause" to
    do so.   To understand these arguments, we will  need to step
    back and take a look at the applicable law.
    Law  75  protects  Puerto Rico-based  dealers  from
    summary cancellation of  their dealership contracts  by their
    -26-
    principal  suppliers  after the  dealers  have  established a
    favorable  market  for the  principal's  goods.   See  Warner
    Lambert Co. v. Superior  Court of Puerto Rico, 
    101 P.R. Dec. 378
    , 387 (1973), translated  in, 1 Official Translations 527,
    541  (1973).   The stated  purpose of  the law is  to protect
    local  dealers from  abusive practices  by suppliers  who are
    financially stronger than they  are.  See Medina &  Medina v.
    Country  Pride  Foods, Ltd.,  88  J.T.S.  6162, 6168  (1988),
    translated in, 
    858 F.2d 817
    ,  820 (1st Cir.  1988).   Toward
    that end, Law 75 prohibits suppliers  from taking any actions
    that  would impair  such  contracts, unless  they have  "just
    cause" for doing so:
    Notwithstanding   the   existence  in   a
    dealer's contract of  a clause  reserving
    to  the parties  the unilateral  right to
    terminate  the existing  relationship, no
    principal  or  grantor  may  directly  or
    indirectly perform any act detrimental to
    the established relationship or refuse to
    renew   said   contract  on   its  normal
    expiration, except for just cause.
    P.R. Laws Ann. tit. 10,   978a.
    Law  75 establishes  a  rebuttable  presumption  of
    impairment  when  a  supplier   appoints  another  dealer  in
    violation  of its  exclusive  dealership  agreement with  its
    original dealer:
    For the  purposes of  this Act  . .  . it
    shall  be presumed,  but for  evidence to
    the contrary, that a principal or grantor
    has impaired the existing  relationship .
    .  .  when   the  principal  or   grantor
    establishes  a distribution  relationship
    -27-
    with one or  more additional dealers  for
    the area  of Puerto Rico, or  any part of
    said  area in conflict  with the contract
    existing between the parties.
    P.R. Laws Ann. tit.  10,   278a-1(b)(2).  The  district court
    adopted the magistrate's  determination that this presumption
    applied  to  Mita.   Mita  disputes this  holding  on appeal.
    However, Mita did not  dispute impairment before the district
    court and, therefore,  waived its right to  make the argument
    on  appeal.   Even without  the presumption,  moreover, Casas
    presented  ample  evidence  of impairment  of  the  exclusive
    dealership   through  Mita's   appointment   of  Caguas   and
    Oficentro,  evidence which Mita did  not dispute.  See, e.g.,
    Draft-Line Corp. v. Hon Co.,  781, 844 (D.P.R. 1991),  aff'd,
    
    983 F.2d 1046
     (1st Cir. 1993); General Office Prods. Corp. v.
    Gussco  Mfg.  Inc.,  
    666 F. Supp. 328
    ,  331 (D.P.R.  1987).
    Accordingly,  the only issue  on appeal is  whether there was
    "just cause" for the impairment.
    Law 75's "just cause" limitation applies even where
    a contract includes a  clause providing for termination under
    specified  circumstances.    Because  many  such  termination
    clauses were tied to distribution quotas or goals, amendments
    to Law 75  in 1988 clarified what  "just cause" meant  in the
    context of contracts that contain such clauses:
    The  violation  or nonperformance  by the
    dealer of  any provision included  in the
    dealer's contract fixing rules of conduct
    or distribution quotas  or goals  because
    it does not  adjust to  the realities  of
    -28-
    the Puerto Rican  market at  the time  of
    the  violation  or nonperformance  by the
    dealer  shall not  be deemed  just cause.
    The   burden   of  proof   to   show  the
    reasonableness of the  rule of conduct or
    of the quota or  goal fixed shall rest on
    the principal or grantor.
    P.R. Laws  Ann. tit. 10,   278a-1(c)(1988).  Thus  failure to
    meet a distribution quota will only constitute just cause for
    impairment  under Law  75  if  that  quota  is  shown  to  be
    "reasonable"  given the state  of the Puerto  Rican market at
    the  time of the alleged  violation.  See  Newell Puerto Rico
    Ltd. v. Rubbermaid, Inc., 
    20 F.3d 15
    , 22-23 (1st Cir. 1994).
    The contract between  Mita and Casas  granted Casas
    an exclusive dealership in the greater San Juan area, so long
    as Casas met  85% of  a specific performance  quota.11   Mita
    terminated the  exclusive dealership when, it  alleges, Casas
    failed to meet 85% of the quota.  Under Law 75, however, Mita
    could  not impair its contract without just cause.  Under the
    above  provisions  of  Law  75,  Mita  had  "just  cause"  to
    terminate  the exclusivity  provision only  if the  quota was
    adjusted to the realities  of the Puerto Rican market  at the
    time of Casas's failure to meet the quota.   Moreover, Law 75
    11.  The  quota called for Casas  to sell 300  copiers and to
    generate $450,000  in sales of such copiers  during the first
    13  months of the contract,  between April 1,  1989 and April
    30, 1990.  Thus, to preserve the exclusivity provision, Casas
    had to  sell 255 copiers (85%  of 300).  If  Casas fell below
    255 copiers, it could  still retain a nonexclusive dealership
    unless  its sales were 50%  below quota, in  which event Mita
    could terminate any relationship whatsoever.
    -29-
    places  on  Mita's  shoulders   the  burden  of  proving  the
    reasonableness  of the  quota.   Thus,  once Casas  moved for
    summary judgment  and alleged an absence  of evidence showing
    that the quota provision was reasonable, Mita was required to
    come forth  with such  evidence in  order to  survive summary
    judgment.   Celotex, 
    477 U.S. at 325
     (Where the nonmovant has
    the burden of proof, the movant need do no more than aver "an
    absence of evidence to support the nonmoving party's case".);
    Pagano v. Frank, 
    983 F.2d 343
    , 347 (1st Cir. 1993).
    Mita contends that it submitted evidence sufficient
    to  raise  a  genuine  issue  of  material  fact  as  to  the
    reasonableness of  the quota.   It points to  letters between
    its  counsel  and  Casas's  counsel,  and  a  declaration  by
    Masaharu Ishidoya,  vice  president of  Mita's  international
    division,   describing   the   negotiation  of   the   quota.
    Ishidoya's  declaration indicated that Casas itself requested
    that the  exclusivity provision be conditioned  upon a yearly
    performance goal.  At his deposition, Ishidoya indicated that
    the  300  copier  quota  in  the contract  was  a  negotiated
    reduction from a quota of 500 copiers first proposed by Mita.
    The 1989  contract contained express language  in which Casas
    "acknowledges  that the  annual quotas  . .  . adjust  to the
    realities  of the market" in Puerto Rico.  Ishidoya states in
    his declaration  that he relied  upon Casas's representations
    to that effect.  Mita also submitted a copy of  the letter it
    -30-
    sent  to  Casas, terminating  the  exclusive  dealership with
    Casas.   In that letter,  Mita stated it  was terminating the
    exclusivity  provision  in  the  contract  because  Casas had
    failed  to  meet  the  quota  percentages  set  forth  in the
    contract.
    Mita  further submitted  the declaration  of Rafael
    Martinez  Margarida, the  Managing  Partner  and  Partner-in-
    Charge of Management Consulting Services at Price Waterhouse.
    Mita  retained Martinez as an expert witness to testify as to
    the   reasonableness  of   the  contract   quota.     In  his
    declaration, Martinez stated  that he examined  Puerto Rico's
    External  Trade Statistics  ("PRETS")  for  imports  of  copy
    machines to Puerto  Rico for  the period of  1985-1990.   The
    declaration included the following table:
    YEAR    QTY. IMPORTED       VALUE     GROWTH OVER PRIOR YEAR
    1985       3,054          3,427,143             N/A
    1986       4,170          6,058,273             77%
    1987       7,375          8,103,991             34%
    1988       6,026          8,148,662              1%
    1989       7,056          9,259,856             14%
    1990       8,983         10,032,200              8%
    Martinez noted that the value of imports increased every year
    between 1985 and 1990.  Martinez also noted that the quota in
    the contract was a projection  based on Casas's actual  sales
    figures in 1985 (279  units), 1986 (153 units) and  1987 (230
    units).  Finally, Martinez noted that  Casas's sales for 1989
    (80  units) and  1990  (110  units) decreased  significantly,
    while  the overall  number of  imports increased  during that
    -31-
    same  period.     Martinez  concluded  that   the  quota  was
    reasonable given the historical  trend, that Casas "failed to
    capitalize  on  the  opportunities  available  in  a  growing
    market,"  and that its failure  to meet the  quota "cannot be
    attributable to the conditions of  the Puerto Rico market for
    photocopying machines."
    Casas points to various alleged flaws in Martinez's
    methodology,  and argues  that these  flaws require  that his
    declaration  be   completely  excluded  as   unprobative  and
    incompetent.  Casas  argues that, in  failing to deduct  from
    the import figures the number of copiers exported from Puerto
    Rico, Martinez based his conclusions on an inaccurate picture
    of  the internal copier market.  Casas also argues that these
    same  import figures  include  imports of  all categories  of
    copiers,  not just the categories of  copiers that Casas sold
    as part of  its exclusive dealership  agreement, and thus  do
    not accurately reflect the precise market in  which Casas was
    operating.12   Casas  also  argues that  the quota,  although
    based  on historical  sales  figures,  unreasonably  required
    12.  Casas also  argues that the yearly  data was irrelevant,
    since Mita must provide evidence about the market on or about
    May  1990, when the contract was terminated.  This is plainly
    wrong.  Law 75  requires Mita to prove the  reasonableness of
    the  quota "at the time of the violation or nonperformance by
    the  dealer."  P.R. Laws Ann. tit.  10,   278a-1(c).  Casas's
    alleged nonperformance  occurred  during the  period  between
    April 1989 and May 1990.  Under the plain terms of Law 75, it
    is the condition  of the  market during that  period that  is
    relevant,  not the  condition of  the  market at  the precise
    point of the contract's impairment by the supplier.
    -32-
    Casas  to double  its market  share in  13 months.   Finally,
    Casas  argues  that  Martinez  failed  to   consider  various
    relevant  factors in  his analysis,  including the  effect of
    increased  intrabrand competition,  changes in the  number of
    dealers  in the market, the effect of Hurricane Hugo, and the
    impact of  the local economic recession.   Accordingly, Casas
    argues, Martinez's  declaration must be excluded,  and Mita's
    remaining evidence  is insufficient to raise  a genuine issue
    of fact.
    The district  court found  that Mita had  failed to
    present  evidence sufficient to  raise a genuine  issue as to
    the reasonableness of the quota.  The court stated:
    The  magistrate  found, and  we agree,
    that the quota provision was unreasonable
    at the time of Casas' nonperformance.  In
    support of its  claim that the  quota was
    reasonable,  Mita presented  an unsworn13
    declaration by Rafael Martinez Margarida,
    a  certified public accountant (CPA).  In
    this  declaration  the CPA  asserted that
    his  examination  of   the  Puerto   Rico
    External Trade's [sic] Statistics (PRETS)
    reflected    a    growing   market    for
    photocopying  machine  imports  from  the
    period of 1985 to 1990, inclusive.  Thus,
    he concluded, Casas'  failure to meet the
    quota  could not be  attributed to market
    conditions.
    As the magistrate found,  Casas proved
    that   Mita's   argument  was   based  on
    erroneous statistics.  Among  the factors
    cited  by the  magistrate  which we  find
    most convincing, the CPA's  report failed
    to take into account essential aspects of
    13.  The  unsworn   declaration  was  made   under  pain  and
    penalties of perjury.  28 U.S.C.   1746.
    -33-
    the  Puerto  Rican  market  such  as  the
    effects   of   Hurricane  Hugo   and  the
    recession  on  the  economy.    The CPA's
    report also failed  to take into  account
    the  effect  of  intrabrand   rivalry  on
    Casas's market share, a  rivalry fostered
    by Mita's impairment of  Casas' exclusive
    distributorship.
    Additionally,  Mita's  data as  to the
    market  for  copying  machines in  Puerto
    Rico   erroneously   included  types   of
    copying apparatus that were  not machines
    manufactured by Mita  and sold to  Casas.
    Thus,  Mita's  evidence  exaggerated  the
    size of the market by including within it
    devices such as thermocopying mechanisms,
    which  were  not among  those apparatuses
    made  and  sold  to Casas  by  Mita,  and
    minimized market conditions by failing to
    include   negative    factors   such   as
    Hurricane   Hugo,   the  recession,   the
    intrabrand rivalry etc.   Clearly, Mita's
    evidence  fails  to  create a  sufficient
    question to prevent the entry  of summary
    judgment in Casas'  favor since Mita  has
    the  burden of  proving that  the quota's
    [sic]  were  reasonable  at  the  time of
    Casas'  nonperformance,  given the  legal
    presumption    that    they   were    not
    unreasonable.
    Thus,   it  was   "unreliable,  lacked
    probative value, and does  not constitute
    competent evidence." [Citing Magistrate's
    Report.]     Mita  claims  now  that  its
    failure to submit more probative evidence
    was due to  its lack of time  in which to
    gather  and  present  it.   We  find this
    excuse pathetic and unconvincing.
    Casas,  
    847 F. Supp. at 988-89
    .  Mita argues that,
    in  granting summary  judgment to  Casas, the  district court
    exceeded its authority by improperly weighing the conflicting
    evidence,  supra, and  deciding  an issue  of material  fact,
    notably,  that the  quota provision  was unreasonable  at the
    time of  Casas's nonperformance.  In  particular, Mita claims
    -34-
    that  the  district court  improperly  discredited Martinez's
    testimony    and   that   this    constituted   error   since
    determinations of  credibility and how much  weight to accord
    testimony cannot be made at summary judgment and must be left
    to the fact  finder at trial.   See Greenburg v.  Puerto Rico
    Maritime Shipping Auth., 
    835 F.2d 932
    , 936 (1st Cir. 1987).
    Casas  responds that  the  district  court did  not
    weigh  Martinez's declaration, but  instead properly excluded
    it  under Fed.  R.  Civ.  P.  56(e)14.    Under  Rule  56(e),
    affidavits supporting  or opposing summary  judgment must set
    forth facts that would be admissible in evidence.  A district
    court may  exclude expert testimony  where it finds  that the
    testimony has  no foundation or rests  on obviously incorrect
    assumptions or  speculative  evidence.   Quinones-Pacheco  v.
    American Airlines,  Inc.,  
    979 F.2d 1
    , 6  (1st  Cir.  1992)
    (excluding expert opinion where based on flawed assumptions);
    Merit Motors, Inc. v. Chrysler Corp., 
    569 F.2d 666
    , 673 (D.C.
    Cir.   1977)  (excluding  expert  testimony  for  failure  to
    consider important factors).  Such decisions are reviewed for
    14.  Fed. R. Civ. P. 56(e) provides:
    Supporting and  opposing affidavits shall
    be  made on personal knowledge, shall set
    forth such  facts as would  be admissible
    in evidence, and shall show affirmatively
    that  the affiant is competent to testify
    to the matters stated therein.
    Fed. R. Civ. P. 56(e).
    -35-
    abuse of discretion.  Quinones-Pacheco, 
    979 F.2d at 6
    .  Casas
    argues  that the district  court properly excluded Martinez's
    declaration as based on flawed data and, faced with a lack of
    evidence  as to  the  reasonableness of  the quota,  properly
    entered summary judgment in its favor.
    A.   Martinez's Declaration was not Excludable
    It is not  clear that the  district court meant  to
    treat Martinez's declaration as excludable under Fed. R. Civ.
    P. 56(e).  The court nowhere articulated such  a ruling.  But
    if  we assume the court  meant to exclude  the declaration as
    incompetent for  summary judgment purposes, we  think it went
    too far.   We  may accept  that Martinez's  opinion, standing
    alone,  was  worth little  more  than the  inferences  a fact
    finder might reasonably draw from  the factual data stated in
    his  declaration.   Martinez was  not said  to have  had some
    special familiarity  with, or  expertise in, the  Puerto Rico
    copier market, apart from the data he presented and sought to
    interpret.    However, that  data,  including  the PRETS  and
    Casas's past sales figures, was admissible and, examined in a
    light  most favorable  to Mita,  tends to  support Martinez's
    conclusion  that the quota was  reasonable.  We  see no basis
    under  Fed.  R.  Civ.  P.  56(e)  for  excluding  the  entire
    declaration altogether.
    Under  Rule 56(e),  an  affidavit must  meet  three
    requirements.  It:
    -36-
    [1]  shall be made on personal knowledge,
    [2] shall set forth  such facts as  would
    be admissible in evidence, and  [3] shall
    show  affirmatively  that the  affiant is
    competent  to  testify  to   the  matters
    stated therein.
    Fed. R.  Civ. P. 56(e).   Unless a  party moves to  strike an
    affidavit under Rule 56(e),  any objections are deemed waived
    and a court may consider the affidavit.  See  Davis v. Sears,
    Roebuck & Co., 
    708 F.2d 862
    , 864 (1st Cir. 1983).  The moving
    party  must  specify  the   objectionable  portions  of   the
    affidavit and  the specific grounds  for objection.   See 10A
    Charles Wright et al., Federal Practice & Procedure   2738 at
    507  (2d ed. 1983).  Furthermore, a court will disregard only
    those  portions of  an  affidavit that  are inadmissible  and
    consider the rest of  it.  See Lee  v. National Life  Assur.,
    
    632 F.2d 524
     (5th  Cir. 1980) ("Where the  affidavit includes
    both  competent and  incompetent evidence,  the  Court should
    disregard   the   incompetent   evidence,   but   give   full
    consideration  to that  which  is competent. . . .   This  is
    nothing more  than the procedure  which would be  followed at
    trial."); Wright,   2738 at 509.
    In moving  below to strike  the Martinez deposition
    under Rule 56(e), Casas  made much the same arguments  it now
    makes on appeal.  Casas did not  argue under the first clause
    in  Rule  56(e)  that   Martinez  lacked  personal  knowledge
    sufficient to testify as to the PRETS and sales figures.  Nor
    did  Casas argue  under the  third clause  that Martinez  was
    -37-
    incompetent to provide  his expert  interpretation of  these.
    Rather,  Casas argued, under the second clause of Rule 56(e),
    that  the  facts  contained   in  the  declaration  were  not
    admissible in evidence because,  in essence, they were simply
    not  sufficiently   material  to,   and  probative  of,   the
    reasonableness of the quota.
    The district court characterized the declaration as
    containing "erroneous  statistics."   Casas, 
    847 F. Supp. at 988
    .    But neither  Casas nor  the  court asserted  that the
    figures in the declaration were not accurate reproductions of
    Puerto Rico's External Trade Statistics, nor did they dispute
    the  correctness   of  the   other  data  mentioned   in  the
    declaration.   The court's reason for  calling the statistics
    "erroneous" seems not  to have been their  inaccuracy as such
    but  rather  its  belief  that  they  did  not constitute  an
    accurate  measure  of the  Puerto  Rico copier  market.   The
    district  court  also  criticized  the  alleged  failure   of
    Martinez's declaration to account for the impact of Hurricane
    Hugo,  the effect of the  local recession, and  the impact of
    intrabrand rivalry, matters raised in Casas's materials.
    But the increase in copier imports between 1989 and
    1990, as reflected in  the PRETS, implicitly rebutted Casas's
    evidence that the hurricane and the local recession had had a
    materially adverse effect on  the Puerto Rican copier market.
    In  finding that  the  declaration failed  to consider  these
    -38-
    "essential  aspects"  of  the  market,   the  district  court
    overlooked the  relevant inference  that could be  drawn from
    the  rise in  copier imports  shown in  the PRETS  figures.15
    See Adickes v. S.H. Kress & Co., 
    398 U.S. 144
    , 158, 
    90 S. Ct. 1598
    ,  26 L.  Ed  2d 142  (1970);  Aponte-Santiago v.  Lopez-
    Rivera, 
    957 F.2d 40
    , 41 (1st Cir. 1992) (the court at summary
    judgment "must  view the evidence and  all factual inferences
    therefrom  in  the light  most  favorable  to the  non-moving
    party").
    Casas's argument that the  PRETS and other data did
    not  account for the impact of intrabrand competition is more
    troubling.   See infra.  While the PRETS figures suggest that
    the market grew in spite of the hurricane and recession, they
    indicate  nothing  directly  about  the  possible  impact  of
    increased intrabrand  competition.  However, it  is one thing
    to  note this silence of the evidence, another to exclude the
    PRETS  figures because of it.   Evidence may  be relevant and
    admissible even  though, standing alone, it  fails to address
    15.  The  cases  that Casas  cites  in  its brief,  Quinones-
    Pacheco and Merit Motors,  are distinguishable.  In Quinones,
    the  expert testimony with respect to damages was based on an
    assumption that was clearly unsupported by the record, namely
    that  the plaintiff was permanently disabled.  
    979 F.2d at 6
    .
    Similarly, in  Merit Motors,  the expert testimony  failed to
    account for significant factors that were clearly relevant to
    the issue at hand.   
    569 F.2d at 673
    .   By contrast, in  this
    case, it remains  open to debate whether  Hurricane Hugo, the
    recession,  or intrabrand  competition had  an effect  on the
    Puerto Rico market,  and what that  effect was, if any.   The
    impact  of  these  factors  is  precisely  the  issue  to  be
    resolved.
    -39-
    every issue raised in a case.  As noted below, Mita presented
    other evidence  that arguably bolsters its  position that the
    quota  was   reasonable.  Given  the   unlikelihood  of  ever
    unearthing  irrefutable statistical evidence, we do not think
    the PRETS  and other statistics, and accompanying inferences,
    were  so  weak  that  they  should  be  rejected as  material
    evidence in this case.
    The  district  court found  that the  PRETS figures
    were also "erroneous" because they included  other categories
    of  copying machines that were not the types of machines sold
    by Casas.  Casas, 
    847 F. Supp. at 988
    .  Casas pointed to the
    fact  that the  1990 PRETS  figure included  imports of  five
    categories of copiers, while Casas sold copiers in only three
    of  these categories.    This "exaggerated  the  size of  the
    market."  The absolute  size of the market was  not, however,
    the issue.   Rather, the issue was  the trend in  the market,
    i.e. whether the market was increasing or decreasing, whether
    Casas's sales were consistent with the trend, and whether the
    quota was  consistent with  Casas's historical market  share.
    Martinez explained in his deposition that it was necessary to
    include the  additional categories in the  1990 PRETS figures
    in  order to  obtain comparable yearly  data, since  prior to
    that year the data for the copier market had  not been broken
    up  into the  five  subcategories.   The  inclusion of  these
    categories did  not necessarily make his  testimony about the
    -40-
    trend in the market any less probative.  Casas did not attack
    the  comparability  of  the  figures and  failed  to  present
    evidence suggesting  that excluding the  categories, if  this
    had indeed been possible, would have resulted in a  different
    trend.
    We  conclude  that the  reasons  set  forth by  the
    district  court were  insufficient  bases  for rejecting  the
    Martinez declaration altogether,  assuming this was what  the
    court  intended to  do.   Nor do  we find  Casas's additional
    arguments  sufficient  for  its  outright  exclusion.   Casas
    complains: that Martinez failed to deduct export figures from
    the  import figures in order to  obtain a true measure of the
    internal copier market; that  Martinez failed to consider the
    fact that  the quota, according  to Casas, required  Casas to
    double its market share within thirteen months; that Martinez
    failed to consider  the fact  that during the  period of  the
    contract, Casas had a  smaller region of exclusive dealership
    than before.
    While  these additional  arguments are  not without
    force, a party may not exclude, on summary judgment, relevant
    and  otherwise  admissible  factual evidence  solely  on  the
    ground  that  the  evidence  leaves a  number  of  unanswered
    questions or  that it  appears somewhat less  persuasive than
    the  movant's evidence  offered  in rebuttal.   If  there are
    genuine issues  of fact,  the nonmovant  is entitled to  have
    -41-
    these  resolved  in the  trial forum,  where the  fact finder
    hears live witnesses and can better assess all the facts.
    We conclude    if the district court intended to do
    so    that it  did not have sufficient grounds  for excluding
    Mita's declaration under Fed. R. Civ. P. 56(e).
    B.   Sufficiency of Mita's Evidence to Raise Issue of Fact
    Having  found no  adequate  basis  to exclude  from
    consideration  Martinez's  declaration,   we  next   consider
    whether  that  declaration  and  Mita's  other evidence  were
    sufficient  to  raise  a genuine  issue  of  fact  as to  the
    reasonableness of  the  quota in  light  of the  Puerto  Rico
    market.16
    It  is  instructive  first to  review  the  summary
    judgment  standard.    "By  its  very  terms,  this  standard
    provides  that the  mere  existence of  some alleged  factual
    dispute  between the  parties  will not  defeat an  otherwise
    properly  supported   motion   for  summary   judgment,   the
    requirement  is that  there is  no genuine issue  of material
    fact."  Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248-48
    (1986).    For  a dispute  to  be  "genuine,"  there must  be
    sufficient evidence to  permit a reasonable trier  of fact to
    16.  Casas does not  address this issue  on appeal.   Casas's
    only argument on appeal  is that the district court  properly
    excluded the  Martinez declaration.   Although this  could be
    interpreted  as  a  concession  that  summary   judgment  was
    improper  if  the  Martinez declaration  was  admissible,  we
    nevertheless  proceed to  address  the key  summary  judgment
    issue.
    -42-
    resolve the issue in the non-movant's favor.  Boston Athletic
    Ass'n v. Sullivan,  
    867 F.2d 22
    , 24 (1st  Cir. 1989);  Astra
    Pharmaceutical Prod., Inc. v. Beckman Instruments, Inc.,  
    718 F.2d 1201
    , 1204  (1st Cir.  1983).   The evidence  cannot be
    merely colorable, but must  be sufficiently probative to show
    differing  versions of fact which justify  a trial.  However,
    the evidence must at  all times be  viewed in the light  most
    favorable  to the  nonmovant, and  all doubts  and reasonable
    inferences  must  be  resolved  in  the   nonmovant's  favor.
    Adickes 
    398 U.S. at 158
    ; Rogen v. Ilikon Corp., 
    361 F.2d 260
    ,
    266 (1st Cir. 1966).  Moreover,  this court may not weigh the
    evidence.    Summary  judgment   "admit[s]  of  no  room  for
    credibility determinations, no room for the measured weighing
    of  conflicting evidence  such as  the trial  process entails
    . . . ."  Greenburg,  
    835 F.2d at 936
    .  If the  facts permit
    more  than one  reasonable  inference, the  court on  summary
    judgmentmay notadopttheinferenceleastfavorabletothenonmovant.
    Viewing  Mita's  evidence  in  its  most  favorable
    light, we think that, although the  question is close, Mita's
    evidence   and  the   reasonable  inferences   therefrom  are
    sufficient to raise a genuine  issue as to the reasonableness
    of  the quota.  First,  the contract executed  by the parties
    contains a  clause in which  Casas expressly agreed  that the
    quota  was reasonable in light of the realities of the Puerto
    Rico  market.   We  do not  suggest that  such  a clause  was
    -43-
    binding, since public policy  would presumably not permit the
    provisions  of Law 75 to  be contracted away.17   However, we
    think  Casas's express  agreement  in the  contract that  the
    quota  was  reasonable  is  admissible  evidence  tending  to
    establish the reasonableness  of the quota at  the time Casas
    signed  the  contract.    Bolstering the  weight  of  Casas's
    concession  were  the  letters   from  Mita's  attorneys  and
    Ishidoya's testimony showing  that Casas had been  successful
    in renegotiating  the quota downward from 500 to 300 copiers.
    Its ability  to do  so suggests  a  degree of  parity in  the
    parties' bargaining  positions, making  it  more likely  that
    Casas  really believed the quota to be reasonable at the time
    it signed the contract.18
    In   addition,  inferences   from  the   PRETS  and
    historical sales figures  contained in Martinez's declaration
    17.  Cf.  P.R.  Laws  Ann.  tit.  30,     3372  (1991)  ("The
    contracting parties may make  the agreement and establish the
    clauses  and  conditions  which   they  may  deem  advisable,
    provided they are  not in contravention  of laws, morals,  or
    public order."); In re Pagan Ayala, 
    117 D.P.R. 180
    , 187 & n.4
    (1986), Translated  in, 17  Official Translations 216,  223 &
    n.4 (1986) (suggesting that contracts  exempting attorneys ex
    ante from malpractice suits are void).
    18.  Casas argues that any  evidence of reasonableness of the
    quota at a  time prior  to the period  of nonperformance  was
    irrelevant here.  However, viewed in the light most favorable
    to Mita, we think that evidence of reasonableness immediately
    prior to the  term of  the contract was  material.   Combined
    with Martinez's declaration indicating  that the Puerto  Rico
    copier market did not subsequently decrease, but rather grew,
    this evidence  is probative of the  continuing reasonableness
    of  the quota between April  1989 and May  1990, the relevant
    period.  See note 12, supra.
    -44-
    suggest that if  the quota was  reasonable when the  contract
    was signed, it remained  so during the term of  the contract.
    The  contract required Casas to sell 255 copiers (85% of 300)
    during  a 13-month  period in order  to retain  its exclusive
    dealership.  This  figure was  not grossly out  of line  with
    Casas's historical 12-month sales  figures: (297 in 1985, 153
    in 1986, and  230 in 1987).  The  PRETS figures indicate that
    the market for copiers actually increased during  the term of
    the contract (from  7,056 in 1989 to 8,983 in  1990).  If the
    quota  was based roughly on past sales, and if the market for
    copiers did  not suffer  any decrease, it  could be  inferred
    from  this evidence that the quota was reasonable in light of
    the Puerto Rico market.
    Casas,  to  be  sure,  presented   much  persuasive
    evidence in opposition.  Summary judgment, however, is  not a
    substitute  for trial.  We  do not think  Casas's evidence so
    undermined Mita's case that  Mita can be said to  have failed
    to   raise   a  genuine   issue   of   fact  concerning   the
    reasonableness of the quota.  At most, it indicated that many
    issues  of  fact remained  to be  resolved  at trial.   Casas
    presented  a declaration  by its  president, stating  that he
    thought the quota unreasonable and that Mita had imposed  the
    quota unilaterally by threatening to cancel their preexisting
    distribution relationship.   Mita's vice  president, however,
    asserted that  he "relied on Casas'  representations that the
    -45-
    performance goal and the related  percentages were reasonable
    for the relevant  market."  Mita's evidence tends  to suggest
    that  the  quota was  arrived  at  through bargaining,  Casas
    having  persuaded Mita  to lower  the quota  from 500  to 300
    copiers.   The Casas  declaration also states  that Hurricane
    Hugo  and the  local recession  had an  effect on  the copier
    market.  As  we have previously  said, however, Mita's  PRETS
    figures minimized  these effects  by showing that  the copier
    market increased during the term of the contract.
    Casas's   strongest   argument   is   that   Mita's
    statistical evidence of market growth and of past sales fails
    to account  for the fact  that, prior to 1988,  Casas was the
    only distributor  of Mita  products  for all  of Puerto  Rico
    (even  though  its  contract  then  was  nonexclusive).    By
    contrast,  during the term of the  contract, Casas argues, it
    faced stiff intrabrand competition.  Its exclusive dealership
    covered only a portion  of Puerto Rico, the greater  San Juan
    area.   While it could  also sell Mita  products elsewhere in
    Puerto Rico on a nonexclusive basis, it now faced competition
    from two other authorized  Mita dealers outside the exclusive
    San Juan area as  well as from alleged unauthorized  sales of
    Mita's copiers by Caguas and Oficentro.  According to  Casas,
    its  competitors sold  327 Mita  copiers during  the 13-month
    period  of the contract.  Casas argues that Mita's past sales
    figures simply  do not  address the  issue of this  increased
    -46-
    intrabrand  competition, hence  they  say nothing  as to  the
    quota's reasonableness during the relevant period.
    But  we   do  not  think  that   this  argument  so
    undermines Mita's case as  to eliminate any contested factual
    issue.  It is unclear how to assess the effects of intrabrand
    competition in  calculating the reasonableness of  the quota.
    The fact that  other nonexclusive dealers  were able to  sell
    327  Mita copiers during  the relevant period  outside of San
    Juan is a double-edged sword.  While, to be sure, these sales
    suggest that Casas faced stern competition, it also indicates
    the  existence of a strong  demand for Mita  copiers on which
    Casas  was presumably free to capitalize to the extent it was
    capable.    It  is  unclear,  moreover,  in  measuring  quota
    reasonableness,  how   intrabrand   competition  is   to   be
    distinguished from the  effects of  competition from  copiers
    made by  other  manufacturers.   Such interbrand  competition
    would have existed earlier as well as  in 1989-90.  While the
    new  factor of  intrabrand competition doubtless  weakens the
    predictive value  of Casas's  earlier sales figures,  it does
    not totally vitiate their  relevance to quota reasonableness.
    Casas knew when  it signed the contract  that its exclusivity
    would  be limited to the  San Juan area,  and presumably also
    knew of the  intrabrand competition it faced  elsewhere.  The
    evidence permits  an inference that in  Casas's then judgment
    the quota was  reasonable despite the  anticipated interbrand
    -47-
    and intrabrand competition.  Thereafter, the overall trend in
    copier imports was up suggesting    at least, as one possible
    interpretation of  the data    that  Casas's poor performance
    was  due not to lack of opportunity  but to some fault of its
    own.
    We conclude that Mita presented evidence sufficient
    to  raise a  genuine issue  as to  the reasonableness  of the
    quota.       Particularly    where   the    standard    here,
    "reasonableness," is  so  amorphous, and  "hard" evidence  to
    prove "reasonableness" so obviously  difficult to come by and
    subject  to multiple  interpretations, we are  disinclined to
    deny Mita its day  in court by raising the  threshold barrier
    of proof too high.  See Rogen, 
    361 F.2d at 265-66
     (suggesting
    that delicate issues of fact  "may well indicate a preference
    for the antennae of the factfinder over the cruder instrument
    of summary judgment");  Newell, 
    20 F.3d at 23
     (deferring  to
    the jury's judgment that supplier  failed to meet its  burden
    of proving that  a quota was "reasonable" under  Law 75).  To
    the extent that we  have doubts about the  appropriateness of
    summary judgment, we  are required to resolve them  in Mita's
    favor.
    Throughout its brief, Casas repeatedly asserts that
    Mita has failed  to satisfy  its burden of  proving that  the
    quota  is reasonable.    This misapprehends  the burden  Mita
    faces at summary  judgment.   Mita is not  required to  prove
    -48-
    that the quota was  reasonable.  Rather it was  only required
    to  present evidence sufficient  to raise a  genuine issue of
    fact  as to reasonableness.   The burden is  one of producing
    enough evidence  to show that it is  entitled to a trial, not
    that it will necessarily  be successful at trial.   See First
    Nat'l Bank of Arizona v. Cities Serv. Co., 
    391 U.S. 253
    , 288-
    89, 
    88 S. Ct. 1575
    , 
    20 L. Ed. 2d 569
     (1966) ("It is true that
    the  issue  of material  fact required  by  Rule 56(c)  to be
    present  to  entitle  a party  to  proceed  to  trial is  not
    required to be  resolved conclusively in  favor of the  party
    asserting its existence; rather, all that is required is that
    sufficient evidence supporting the claimed factual dispute be
    shown  to require  a jury  or judge  to resolve  the parties'
    differing  versions of the truth at trial.")  We believe Mita
    has  satisfied  this  burden.    We  conclude  that Mita  has
    presented  evidence sufficient  to raise  a genuine  issue of
    material fact as to the reasonableness of the quota given the
    condition of  the Puerto Rican  copier market.   Weighing the
    evidence, assessing the credibility of the experts: these are
    task that must be left to the trier of fact.19
    19.  Without making too much  of this, we note that  Casas in
    its brief almost concedes that there exist disputed issues of
    fact.   After listing  the  evidence it  presented about  the
    unreasonableness of the quota, it states: "Among others, this
    evidence raises material  questions of fact as  to the effect
    of Hurricane Hugo, the recession, the  intrabrand competition
    of  MITA  machines,  and   the  manipulation  of  statistical
    information by MITA's expert  in order to artificially create
    a 'growing market'."  We agree.
    -49-
    V.
    In accordance with this opinion, we  hereby dismiss
    Caguas  and  Oficentro  from  this suit  and  remand  to  the
    district court  to determine whether the  dismissal of Caguas
    and Oficentro  should be with  or without prejudice.   Having
    determined that the district  court erred in granting Casas's
    motion for  partial summary  judgment, we vacate  the court's
    order granting  Casas a  permanent injunction.   The parties'
    claims will  proceed in the district  court consistently with
    this opinion.20
    So ordered.  Each party shall bear its own costs.
    20.  We do not reach Mita's remaining argument that,  even if
    summary judgment was proper, the district court's issuance of
    the permanent injunction was improper.
    -50-
    

Document Info

Docket Number: 94-1067

Filed Date: 12/14/1994

Precedential Status: Precedential

Modified Date: 2/19/2016

Authorities (36)

Strawbridge v. Curtiss , 2 L. Ed. 435 ( 1806 )

Merit Motors, Inc. v. Chrysler Corporation , 569 F.2d 666 ( 1977 )

Gilbert Yniques Angel Diaz Carl S. Ramos John Balderama ... , 985 F.2d 1031 ( 1993 )

commonwealth-of-massachusetts-and-conservation-law-foundation-of-new , 594 F.2d 872 ( 1979 )

kurt-kausler-individually-as-member-of-and-on-behalf-of-all-other-members , 989 F.2d 296 ( 1993 )

Neil Rogen v. Ilikon Corporation , 361 F.2d 260 ( 1966 )

Milgard Tempering, Inc., Plaintiff-Appellee/cross-Appellant ... , 902 F.2d 703 ( 1990 )

Feleicia Malcolm DAVIS, Plaintiff, Appellant, v. SEARS, ... , 708 F.2d 862 ( 1983 )

Adickes v. S. H. Kress & Co. , 90 S. Ct. 1598 ( 1970 )

Freeport-McMoRan Inc. v. K N Energy, Inc. , 111 S. Ct. 858 ( 1991 )

Carson v. American Brands, Inc. , 101 S. Ct. 993 ( 1981 )

dan-a-morgenstern-md-v-charles-s-wilson-md-deepak-gangahar-md , 29 F.3d 1291 ( 1994 )

General Office Products Corp. v. Gussco Manufacturing, Inc. , 666 F. Supp. 328 ( 1987 )

Astra Pharmaceutical Products, Inc. v. Beckman Instruments, ... , 718 F.2d 1201 ( 1983 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

International Travelers Cheque Company v. Bankamerica ... , 660 F.2d 215 ( 1981 )

Wichita Railroad & Light Co. v. Public Utilities Commission ... , 43 S. Ct. 51 ( 1922 )

Velez-Gomez v. SMA Life Assurance Co. , 8 F.3d 873 ( 1993 )

Pedro Antonio Aponte-Santiago v. Aurelio Lopez-Rivera, Etc. , 957 F.2d 40 ( 1992 )

View All Authorities »