
USCA1 Opinion

	











                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                              _________________________
                              _________________________

          No. 95-1206
                         JOAO CARREIRO, INDIVIDUALLY AND AS 
                            ADMINISTRATOR OF THE ESTATE OF
                                 TERESA V. CARREIRO,
                                Plaintiff, Appellant,

                                          v.

                          RHODES GILL AND CO., LTD., ET AL.,
                                Defendants, Appellees.

                              __________________________
                              __________________________

          No. 95-1239
                          JOAO CARREIRO, INDIVIDUALLY AND AS
                           ADMINISTRATOR OF THE ESTATE OF 
                                 TERESA V. CARREIRO,
                                 Plaintiff, Appellee,

                                          v.

                          RHODES GILL AND CO., LTD., ET AL.,
                                Defendants, Appellees,

                              _________________________
                              _________________________


                               MAIN MACHINERY COMPANY,
                                Defendant, Appellant.

                              _________________________
                              _________________________


                   APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
                            THE DISTRICT OF MASSACHUSETTS 

                [Hon. Robert E. Keeton, United States District Judge]
                                        ____________________________
               [Hon. Richard G. Stearns, United States District Judge]
                                         ____________________________

                              _________________________
                              _________________________

























                              _________________________
                              _________________________


                                        Before

                           Selya and Stahl, Circuit Judges,
                                            ______________

                             and Gorton,* District Judge.
                                          ______________

                              _________________________
                              _________________________


               Paul  A. Epstein with whom  Spillane & Epstein  was on brief
               ________________            __________________
          for Joao Carreiro.
               Judith  A. Perritano with whom  Joel F. Pierce and Morrison,
               ____________________            ______________     _________
          Mahoney & Miller were on brief for Main Machinery Company  and H.
          ________________
          Leach Machinery Company. 
               Robert D. Fine with whom Licht  & Semonoff was on brief  for
               ______________           _________________
          Barry  G. Hittner,  Receiver  of Rumford  Property and  Liability
          Insurance Company.
               Jeanne  O'Leary McHugh with whom Law Offices of Bruce R. Fox
               ______________________           ___________________________
          was on brief for The Robbins Company.

                              _________________________
                              _________________________
                                  November 1, 1995 
                                  November 1, 1995
                              _________________________
                              _________________________












          _____________________
          _____________________

          *Of the District of Massachusetts, sitting by designation. 



























                      STAHL, Circuit Judge.   These  appeals arise from a
                      STAHL, Circuit Judge.
                             _____________

            product   liability  and  wrongful   death  suit  brought  by

            appellant Joao  Carreiro, whose wife Teresa  was killed while

            operating a machine press at The Robbins Company ("Robbins").

            Carreiro sued Rhodes Gill & Co., Ltd. ("Rhodes"), the English

            manufacturer  of  the  machine; H.  Leach  Machinery  Company

            ("Leach"), the dissolved domestic distributor of the machine;

            Main  Machinery  Company  ("Main"),  the   alleged  successor

            corporation to  Leach;  and Rumford  Property  and  Liability

            Insurance  Company  ("Rumford")1, Leach's  insurance carrier.

            Rhodes failed  to answer  the complaint and  defaulted.   The

            district court  granted summary  judgment for Leach,  holding

            that  it was not amenable  to suit because  it terminated its

            corporate existence long before the accident.  The court then

            dismissed Rumford, ruling that there can be no  direct action

            against  the insurer  of  a dissolved  corporation under  the

            applicable Rhode  Island statute.  The  court granted summary

            judgment for Main, finding  that it was not the  successor to

            Leach.  Carreiro appeals those rulings,  which we now affirm.

            Main impleaded  Robbins,  who had  contractually  indemnified

            Leach when it  purchased the press. The  district court found

            that  Main was not a  successor to Leach  and granted summary

            judgment for Robbins on Main's third-party claim.  Because we

                                
            ____________________

            1.  Rumford is in receivership and is represented in this
            action by its receiver, Barry G. Hittner.


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                                          3















            affirm summary judgment for  Main on Carreiro's claim, Main's

            appeal of the ruling in favor of Robbins is moot.

                                          I.
                                          I.
                                          __

                                      BACKGROUND
                                      BACKGROUND
                                      __________

            A.  Overview
            ____________

                      In reviewing the several  rulings appealed from, we

            first offer this brief  factual overview.  On March  7, 1988,

            Teresa  Carreiro  was operating  a "New  Stamp-Matic" machine

            press  while employed  at the  Robbins Company  in Attleboro,

            Massachusetts.  During  operations, a  piece of  a die  broke

            off, penetrated a plexiglass guard and struck Ms. Carreiro in

            the neck, inflicting a fatal injury.  

                      Rhodes  manufactured  the allegedly  defective "New

            Stamp-Matic"  press in England.   Leach, a seller  of new and

            used  machine  tools   and  the   authorized  United   States

            distributor for Rhodes, sold it to Robbins in 1980.  In 1980,

            several  members of  the Leach  family who  were shareholders

            and/or  officers of  Leach  started a  new corporation,  Main

            Machinery Co., which continued in the business of selling new

            and used  machine tools, including "New  Stamp-Matic" presses

            manufactured  by  Rhodes.     Subsequently,  in  1982,  Leach

            dissolved, a full six years before the accident.

            B.  Prior Proceedings  
            _____________________

                      In February  1991, Joao Carreiro,  individually and

            as administrator of  the estate of  Teresa Carreiro, filed  a



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            diversity complaint for product liability  and wrongful death

            in the  United  States District  Court  for the  District  of

            Massachusetts against Rhodes, Leach,  Main and Rumford.  Main

            impleaded  Robbins  as a  third-party  defendant  based on  a

            preexisting  indemnification  agreement  between   Leach  and

            Robbins.     Rhodes  failed  to  answer   the  complaint  and

            defaulted.   Leach  moved to  dismiss under  Fed. R.  Civ. P.

            12(b)(2) and 12(b)(6) in April 1991, asserting that it lacked

            the capacity  to be  sued because dissolution  had terminated

            its corporate existence.   The district court deferred ruling

            on  Leach's motion to dismiss in order to permit discovery by

            Carreiro on  Leach's claimed dissolution.  Meanwhile, Rumford

            filed  a Rule  12(b)(6)  motion to  dismiss contending  that,

            because  the  dissolved Leach  lacked  capacity  to be  sued,

            Rumford could not be sued under Rhode Island's  direct action

            statute.  In March 1992, Leach renewed its motion to dismiss,

            submitting as  support the Rhode Island  Secretary of State's

            certificate averring  that Leach  had dissolved on  March 25,

            1982.   In April 1992, Rumford renewed its motion to dismiss,

            again based on Leach's  dissolution.  In an August  31, 1992,

            order,  the district  court,  Robert E.  Keeton, J.,  granted

            Leach's and  Rumford's motions to dismiss,2  finding no basis


                                
            ____________________

            2.  The district court treated Leach's motion to dismiss as a
            motion for summary judgment under Fed R. Civ. P. 56 because
            Leach had presented material outside the pleading.  See Fed.
                                                                ___
            R. Civ. P. 12(b).

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                                          5















            for  Carreiro's  request  for  further discovery  on  Leach's

            dissolution.

                      In  April 1994,  Main  moved for  summary judgment,

            claiming that it was not liable as a successor corporation to

            Leach.  Main and Robbins also filed cross-motions for summary

            judgment  on the issue of Robbins' liability to Main based on

            Robbins' agreement  to indemnify Leach.   The district court,

            Richard G. Stearns, J., found that Main was not the successor

            to Leach  and granted summary judgment for Main on Carreiro's

            claims.  In  the same  order, Judge  Stearns granted  summary

            judgment for Robbins on Main's third-party claim, ruling that

            Main could not benefit  from Robbins' contractual  obligation

            to indemnify  Leach because  Main was not  Leach's successor.

            These appeals ensued.

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      Joao  Carreiro raises  four principal  arguments on

            appeal:   (1) genuine factual issues exist as to whether Main

            is  liable  as  a  successor corporation  to  Leach;  (2) the

            district  court erred  in not  allowing further  discovery on

            whether Leach had been properly dissolved; (3) Rhode Island's

            two-year  survival  period  for  claims against  a  dissolved

            corporation does not preclude  this tort action against Leach

            even  though  the  accident  occurred  six  years  after  its

            dissolution;   and  (4) the  Rhode  Island  statute  allowing



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                                          6















            certain  direct actions  against  the insurer  of a  deceased

            natural  person applies as well to the insurer of a dissolved

            corporation.  After setting forth the applicable standards of

            review, we discuss each issue in turn.

            A.  Standards of Review
            _______________________

                      1.  Summary Judgment for Main, Leach and Robbins
                      ________________________________________________

                      We  review a grant of  summary judgment de novo, in
                                                              __ ____

            accordance  with our usual standard.   See, e.g., Crawford v.
                                                   ___  ____  ________

            Lamantia, 34 F.3d 28,  31 (1st Cir. 1994), cert.  denied, 115
            ________                                   _____  ______

            S. Ct. 1393  (1995); Woods  v. Friction  Materials, Inc.,  30
                                 _____     _________________________

            F.3d 255, 259 (1st Cir. 1994).   

                      2. Rule 12(b)(6) Dismissal of Rumford
                      _____________________________________

                      We review a dismissal for failure to state a  claim

            pursuant to Fed. R.  Civ. P. 12(b)(6) de novo,  accepting all
                                                  __ ____

            well-pleaded  facts  as  true  and   drawing  all  reasonable

            inferences in favor of the party dismissed.  Washington Legal
                                                         ________________

            Found.  v. Massachusetts Bar  Found., 993 F.2d  962, 971 (1st
            ______     _________________________

            Cir.  1993).   We will  not accept a  plaintiff's unsupported

            conclusions  or interpretations of law.   Id.   We may affirm
                                                      ___

            the district  court's order  on any  independently sufficient

            grounds.  Id.











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                                          7















                      3. Denial of Discovery Request
                      ______________________________

                      The trial  judge has broad discretion  in ruling on

            pre-trial management matters.  Fusco v. General Motors Corp.,
                                           _____    ____________________

            11 F.3d  259, 267  (1st  Cir. 1994).   We  review a  district

            court's ruling on a  discovery request under Fed. R.  Civ. P.

            56(f)  by a party opposing summary judgment for abuse of that

            considerable discretion.  Price  v. General Motors Corp., 931
                                      _____     ____________________

            F.2d 162, 164 (1st Cir. 1991). 

            B.  Successor Liability of Main
            _______________________________

                      1. Relevant Facts on the Summary Judgment Record
                      ________________________________________________

                      Viewed most  favorably to  Carreiro,  the facts  of

            record3 relevant  to the successor liability  question are as

            follows.  Leach sold the allegedly defective machine press to

            Robbins, Carreiro's employer, in 1980.  Leach, a Rhode Island

            corporation, was originally owned and operated by Harry Leach

            and  his  sons Oscar  and Max.    After Harry  Leach's death,

            Oscar, Max,  and  Max's son  Bruce were  the stockholders  of


                                
            ____________________

            3.  Local Rule 56.1 of the United States District Court for
            the District of Massachusetts requires the party moving for
            summary judgment to provide a concise statement of the
            material undisputed facts with citations to affidavits,
            depositions, or other documentation permitted under Fed. R.
            Civ. P. 56(c).  The party opposing summary judgment must
            provide a concise statement of material disputed facts, also
            with citations to affidavits, etc.  Properly supported facts
            set forth by the moving party are deemed admitted unless
            controverted by the factual statement of the opposing party. 
            See generally Stepansichen v. Merchants Despatch Transp.
            ___ _________ ____________    __________________________
            Corp., 722 F.2d 922, 930 (1st Cir. 1983) (sanctioning such
            _____
            local rules that facilitate analysis of summary judgment
            motions).

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                                          8















            Leach, with Oscar as President and Secretary and Max as Vice-

            President and Treasurer.   Leach sold new, rebuilt,  and used

            machine  tools and  various  other pieces  of production  and

            metalworking equipment, some of which it manufactured.

                      In March  1980, Main  was incorporated under  Rhode

            Island  law  with  Max  Leach  and  his  three   children  as

            stockholders.   At incorporation and  at the time this action

            commenced,  Oscar  Leach  was  not  a  stockholder  of  Main,

            although he was a director.  Its other officers and directors

            were Max and  Bruce Leach.   Main's primary  business at  the

            time of the  accident was the sale of used  machine tools and

            various  pieces  of  production and  metalworking  equipment.

            Unlike  Leach, it  never rebuilt  or manufactured  machinery.

            Main is a  registered agent  of Rhodes and  sells the  Rhodes

            "New  Stamp-Matic" press,  the  same press  that injured  Ms.

            Carreiro.  Thirteen of  Main's employees are former employees

            of Leach.  Main and Leach shared  the same address from 1980,

            when  Main  was  incorporated,  until 1982,  when  Leach  was

            dissolved, but Main always  had its own telephone  number and

            letterhead.  After  Leach dissolved, its address was  in care

            of  Bruce Leach.    In response  to  a discovery  request  by

            Robbins, Main produced certain documents of Leach. 

                      In March  1982,  Leach was  voluntarily  dissolved.

            All of Leach's inventory and assets were sold,  discarded, or

            otherwise disposed  of; none were acquired  by or transferred



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                                          9















            to  Main.  Main acquired no shares  of Leach stock.  Main was

            never a  creditor of Leach, but it may have done service work

            on some machines sold by Leach.

                      2. Analysis
                      ___________

                      Carreiro argues  that  genuine issues  of  material

            fact precluded  summary judgment  for Main, but  Carreiro has

            pointed  to  no  disputed  facts  in  either  his  memorandum
                                       _____

            opposing summary judgment or his  brief on appeal.   Instead,

            he asserts  in his  brief that "[e]valuative  applications of

            legal standards to the  facts are properly questions  for the

            fact  finder," citing as support Springer v. Seaman, 821 F.2d
                                             ________    ______

            871, 876  (1st Cir. 1987)  (holding that application  of tort

            concepts  of  foreseeability   and  superseding  cause   were

            properly for jury).  We need not decide, however, whether the

            doctrine  of corporate  successor  liability is  the sort  of

            "evaluative application of a legal standard"  appropriate for

            a jury.   United States v. Rule  Indus., Inc., 878 F.2d  535,
                      _____________    __________________

            541-42  (1st Cir.  1989).   The summary judgment  record here

            contains  no evidence of any transfer of assets from Leach to

            Main,  which, as we explain below, is a threshold requirement

            for  successor  liability  under  the  theories  advanced  by

            Carreiro.  Thus,  there being  no genuine issues  of fact  in

            dispute, Main was entitled to judgment as a matter of law.

                      (a)  Successor Liability Generally
                           _____________________________





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                      The corporate law doctrine of "successor liability"

            comprises  a set  of exceptions  to the  general rule  that a

            corporation purchasing  the assets  of another is  not liable
                                                               ___

            for the debts of the seller corporation.  The parties' briefs

            rely on  Dayton v. Peck, Stow & Wilcox Co., 739 F.2d 690, 692
                     ______    _______________________

            (1st Cir. 1984) (applying Massachusetts law) to set forth the

            general rule and the exceptions:

                      The  general  rule  in  the  majority  of
                      American     jurisdictions,     including
                      Massachusetts, is that  "a company  which
                      purchases the assets  of another  company
                      is   not   liable  for   the   debts  and
                      liabilities  of  the  transferor."    The
                      general   rule   is   subject   to   four
                      well-recognized   exceptions   permitting
                      liability to be imposed on the purchasing
                      corporation:    (1)  when the  purchasing
                      corporation expressly or impliedly agreed
                      to   assume  the   selling  corporation's
                      liability;   (2)  when   the  transaction
                      amounts to a  consolidation or merger  of
                      the  purchaser  and seller  corporations;
                      (3)  when  the  purchaser corporation  is
                      merely  a  continuation  of   the  seller
                      corporation; or (4) when  the transaction
                      is  entered  into fraudulently  to escape
                      liability for such obligations. 

            (citations  omitted).    Carreiro  argues that  Main  is  the

            successor corporation to Leach based on the second ("de facto

            merger") and third ("mere continuation") exceptions.  

                      Main  counters persuasively  that neither  of these

            exceptions apply  because there was no sale or other transfer

            of assets from Leach to Main.  Main asserts that because  the

            "de  facto  merger"  and "mere  continuation"  doctrines  are

            exceptions to the general  rule of non-liability following an


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            asset purchase,  they necessarily presuppose a  sale or other

            transfer  of  assets  from  one corporation  to  its  alleged

            successor.   We  agree.   As discussed  below, the  cases and

            other  authority cited  by both parties  apply the  "de facto

            merger" or  "mere continuation"  exceptions only where  there

            has  been a  purchase or  other transfer  of assets;  we have

            neither been  directed to nor found  any authority supporting

            the  application of these  exceptions in the  absence of some

            transfer of assets.  

                      (b)  Rhode Island Precedent
                           ______________________

                      Several Rhode  Island  decisions have  applied  the

            mere continuation exception, but  each case involved an asset

            transfer.   In H.J. Baker & Bro., Inc. v. Orgonics, Inc., 554
                           _______________________    ______________

            A.2d  196, 204 (R.I. 1989), the Supreme Court of Rhode Island

            stated that "[g]enerally, a company that purchases the assets

            of  another is  not liable  for the  debts of  the transferor

            company."    The  Baker  court,  however,  imposed  successor
                              _____

            liability  because the corporation's assets were acquired for

            nominal consideration by its president in a manner calculated

            to defraud creditors.  The president used the acquired assets

            to continue the same  business with the same employees.   Id.
                                                                      ___

            at 7,  9.  See also  Casey v. San-Lee Realty,  Inc., 623 A.2d
                       ___ ____  _____    _____________________

            16,  19  (R.I.  1993)  (finding  mere continuation  exception

            inapplicable   to   intra-family   asset  transfer   for   no

            consideration in the absence of fraud); Cranston Dressed Meat
                                                    _____________________



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            Co. v. Packers Outlet Co., 190 A. 29, 31 (R.I. 1937) (finding
            ___    __________________

            one corporation  a  mere continuation  of  predecessor  where

            successor corporation used  supplies, inventory, and cash-on-

            hand of  predecessor and where court found  intent to defraud

            creditors).    These  Rhode  Island  cases  apply  the  "mere

            continuation"  doctrine  to  impose  successor  liability  in

            certain asset transfers, an exception to the general rule set

            forth  in  Baker  that  an  asset  transfer does  not  create
                       _____

            successor  liability.      Although  these   cases   do   not

            specifically limit the "mere continuation" doctrine to inter-
            ____________

            corporate  asset transfers, there is  no hint, and  it is not

            logical, that  the mere continuation exception  should have a

            broader scope than the rule to which it relates.

                      We  are aware of no opinion of the Supreme Court of

            Rhode  Island  discussing  generally  the "de  facto  merger"

            exception  or specifically whether  that exception applies in

            the absence of an asset transfer.  

                      (c)  Predicting Rhode Island Law
                           ___________________________

                      "In  the  absence of  a  definitive  ruling by  the

            highest state  court, a federal court  may consider analogous

            decisions, considered  dicta, scholarly works, and  any other

            data tending to show how the highest court in the state would

            decide  the issue  at  hand, taking  into  account the  broad

            policies  and  the trends  so evinced."    Gibson v.  City of
                                                       ______     _______

            Cranston, 37 F.3d  731, 736 (1st Cir. 1994) (quoting Michelin
            ________                                             ________



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            Tires (Canada), Ltd. v.  First Nat'l Bank, 666 F.2d  673, 682
            ____________________     ________________

            (1st Cir. 1981)).   However, Carreiro, in choosing  a federal

            rather than a  state forum, is "presumably  cognizant of this

            court's statement that 'litigants who reject a state forum in

            order  to  bring  suit   in  federal  court  under  diversity

            jurisdiction cannot expect that  new trails will be blazed.'"

            Jordan  v.  Hawker Dayton  Corp., 62  F.3d  29, 32  (1st Cir.
            ______      ____________________

            1995)(declining  invitation to extend  successor liability to

            asset purchaser  under Maine law)(quoting Ryan  v. Royal Ins.
                                                      ___________________

            Co. of America, 916 F.2d 731, 744 (1st Cir. 1990)).   
            ______________

                      Carreiro   cites  no   cases  or   other  authority

            suggesting that the "mere  continuation" or "de facto merger"

            exceptions  can apply  in the absence  of an  asset transfer.

            Every case that Carreiro  does cite involved a sale  or other

            transfer  of  assets from  the  original  corporation to  its

            putative successor.   In  our research of  "scholarly works,"

            see  Gibson, 37 F.3d at 736, we find that successor liability
            ___  ______

            in general, and the "mere continuation" and "de facto merger"

            exceptions in particular, are  always discussed and  analyzed

            in the context of inter-corporate asset transfers.  Scholarly

            interest and  judicial innovation  in this area  of corporate

            law have  been fueled by concern  with corporate transactions

            structured  as asset purchases  to avoid successor liability,

            which  exists in a statutory merger but generally does not in

            an asset purchase.   Because a purchase can achieve  the same



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                                          14















            economic result as a  merger when the acquirer  continues the

            same business with the same assets and employees, many courts

            have  reasoned  that the  same  liability  rule --  successor

            liability --  should apply.  See, e.g.,  William M. Fletcher,
                                         ___  ____

            15 Cyclopedia  of the  Law of  Private Corporations     7122,
               ________________________________________________

            7123-23.05 (1990  and Supp.  1995); American Law  of Products
                                                _________________________

            Liability  3d    7:1, 7:10-13  (1987 and Supp. 1995); Phillip
            _____________

            I.  Blumberg,  The Law  of  Corporate  Groups,     13.05-05.1
                           ______________________________

            (1987).   But  these treatises  and the cases  Carreiro cites

            contain  no  mention  nor  even  any   hint  that  the  "mere

            continuation" or  "de facto merger" doctrines  might apply in

            the absence of an asset transfer. 

                      Our   research  reveals  three  decisions  where  a

            litigant sought to impose  successor liability in the absence

            of an asset transfer;  all three hold that an  asset transfer

            was an  essential prerequisite  to successor liability.   See
                                                                      ___

            Williams v. Bowman Livestock Equip  Co., 927 F.2d 1128,  1132
            ________    ___________________________

            (9th Cir. 1991)  (without a  transfer of assets  there is  no

            basis   to   impose  liability   under   "mere  continuation"

            exception,  applying  Oklahoma  law); Meisel  v.  M&N  Modern
                                                  ______      ___________

            Hydraulic  Press  Co.,  645  P.2d 689,  691-92  (Wash.  1982)
            _____________________

            (transfer of assets  an essential  prerequisite to  successor

            liability under  "de  facto merger"  and "mere  continuation"

            theories); Evanston  Insur. Co. v.  Luko, 783  P.2d 293,  296
                       ____________________     ____





                                         -15-
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            (Haw.  Ct. App. 1989) (all  exceptions to general  rule of no

            successor liability presuppose a transfer of assets).

                      We conclude that the  Supreme Court of Rhode Island

            would  not   find  successor   liability   under  the   "mere

            continuation"  or "de  facto  merger"  doctrines  absent  any

            evidence  of an inter-corporate asset transfer.   Not only is

            it illogical to extend the scope of an exception more broadly

            than  the general  rule  to which  it  relates, but  to  hold

            otherwise would  "blaze a new trail,"  which is inappropriate

            for  a  federal  court  applying state  law  under  diversity

            jurisdiction.  See Jordan, 62 F.3d at 32.
                           ___ ______

                      (d)  Applying Rhode Island Law to Leach and Main
                           ___________________________________________

                      The   summary   judgment   record    contains   the

            uncontroverted  affidavit  of  Main's  president   Max  Leach

            stating that  "Main did not  acquire any  inventory or  other

            assets  from H. Leach."   At oral argument, Carreiro's lawyer

            asked this court  to infer  that some assets  must have  been

            transferred when Leach employees  joined Main (assets such as

            hand tools, shop supplies,  pencils, and goodwill  consisting

            of the Rhodes distributorship and Leach's customer base), but

            nothing  in   the  summary  judgment  record   supports  that

            inference.   This argument, not presented below  and made for

            the first time  at oral  argument, is waived.   See  National
                                                            ___  ________

            Amusements, Inc. v.  Town of  Dedham, 43 F.3d  731, 749  (1st
            ________________     _______________

            Cir.),  cert. denied,  115  S. Ct  2247 (1995)(arguments  not
                    _____ ______



                                         -16-
                                          16















            presented below are waived); Frazier v. Bailey, 957 F.2d 920,
                                         _______    ______

            932   (1st  Cir.  1992)(arguments   not  fully  presented  in

            appellate brief are waived).

                      In  sum,  having concluded  that  Rhode Island  law

            would  not  impose successor  liability  under  the de  facto

            merger  and  mere  continuation exceptions  absent  an  asset

            transfer, and finding  no evidence of  any asset transfer  on

            the record, we affirm summary judgment for defendant Main.

            C.  Further Discovery on Leach's Dissolution
            ____________________________________________

                      Carreiro appeals the district court's denial of his

            request   for  additional  discovery   (after  the  discovery

            deadline) that might have shown  that Leach was not dissolved

            in 1982  in accordance with Rhode Island law.  To support its

            motion for  summary judgment, Leach submitted  a certificate,

            signed by the First Deputy Secretary of State and bearing the

            state  seal, attesting  to Leach's  dissolution on  March 25,

            1982.  Carreiro does not  challenge that the certificate  was

            validly issued, but instead argues that the court should have

            allowed  Carreiro  to   conduct  further  discovery   seeking

            unspecified evidence that Leach  had somehow failed to comply

            with  the  statutory  requirements for  dissolution.    Rhode

            Island law provides  that a certificate  of the secretary  of

            state "shall be  taken and  received in all  courts . . .  as

            prima facie evidence of the existence or non-existence of the
            ___________

            facts  stated therein."  R.I. Gen. Laws   7-1.1-134.  Because



                                         -17-
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            Leach submitted the  certificate, the district court  treated

            Leach's renewed  motion to  dismiss as a  motion for  summary

            judgment.   See  Fed. R.  Civ. P.  12(b).   A party  opposing
                        ___

            summary judgment may have  additional discovery under Fed. R.

            Civ.  P. 56(f)  where it  cannot present  essential facts  by

            affidavit, but  the party must "articulate  a plausible basis

            for the belief that  discoverable materials exist which would

            raise a trialworthy issue."   Price v. General Motors  Corp.,
                                          _____    _____________________

            931  F.2d 162, 164 (1st Cir. 1991).  Carreiro neither pointed

            to any evidence nor made any  specific allegations that Leach

            failed to  comply with the requirements  for dissolution, and

            accordingly  the  district  court's denial  of  the requested

            discovery was well within its discretion.     

            D.  Survival of Actions Against a Dissolved Corporation
            _______________________________________________________

                      According  to  R.I. Gen  Laws    7-1.1-98, entitled

            "Survival of remedy  after dissolution," a claimant may sue a

            dissolved corporation  for "any  right or claim  existing, or

            any liability incurred, prior to the dissolution if action or

            other proceeding  thereon is  commenced within two  (2) years

            after the date of dissolution."  Leach's dissolution in March

            1982 was certified by the Rhode Island Secretary of State and

            is uncontroverted  on the summary judgment  record.  Carreiro

            argues that  his suit  can be  brought against  the dissolved

            Leach  well after  the two-year  survival period  because the

            liability  was  not  incurred  "prior  to  dissolution,"  and



                                         -18-
                                          18















            therefore  does  not fall  within  the literal  scope  of the

            statute.

                      Although  there   is  no  Rhode   Island  case  law

            discussing   the  survival  of  claims  against  a  dissolved

            corporation  under  section  7-1.1-98, the  Supreme  Court of

            Rhode Island interpreted  the analogous Massachusetts statute

            in Halliwell Assocs.,  Inc. v. C.E. Maguire Servs., Inc., 586
               ________________________    _________________________

            A.2d 530 (R.I. 1991).  The court explained that at common law

            "a corporation's  capacity to sue  or be sued  was completely

            destroyed upon dissolution."   Id. at 533.  The  court added:
                                           ___

            "Today,  all  jurisdictions  have enacted  corporate-survival

            statutes  that abrogate  the harsh  effect of  the common-law

            rule by  allowing a  corporation's existence to  continue for

            some  time  past  the  date  of  dissolution  to  settle  its

            corporate  affairs  gradually,   but  not  to  continue   its

            business."   Id.   Rhode  Island has  enacted exactly  such a
                         ___

            statute,  section 7-1.1-98,  and the  Supreme Court  of Rhode

            Island's explanation  of the  background common law  rule and

            the intent behind the  typical survival statute is persuasive

            authority  as to the proper interpretation of R.I. Gen. Law  

            7-1.1-98.   See supra  section II.B.2.(c) (discussing  use of
                        ___ _____

            other  authority in  the  absence  of  a holding  by  state's

            highest court).

                      In  light of  the Supreme  Court of  Rhode Island's

            explanation  of  the legislative  intent  behind the  typical



                                         -19-
                                          19















            survival statute,  the language at issue  in section 7-1.1-98

            (providing  a two-year survival  period only  for liabilities

            incurred "prior to dissolution") logically means that actions

            on liabilities  incurred after dissolution do  not survive at
                                     _____

            all, not  even for the  two-year wind-up period.   Carreiro's

            argument   that  actions   on   liabilities  incurred   after

            dissolution  survive forever  is  untenable in  light of  the

            common  law  rule  and  the legislative  intent  to  create a

            limited  wind-up  period.    We conclude  that  Leach,  whose

            dissolution in 1982 is uncontroverted on the summary judgment

            record,  is not amenable to  a suit brought  almost ten years

            after its dissolution and eight years after the expiration of

            the  two-year survival  period.   Accordingly, we  affirm the

            district court's grant of summary judgment for Leach.

            E.  Direct Action Against Insurer of Dissolved Corporation
            __________________________________________________________

                      The  district court  granted  Rumford's  motion  to

            dismiss  under Fed.  R. Civ.  P. 12(b)(6),  having determined

            that  R.I. Gen. Laws   27-7-2 does not permit a direct action

            against the insurer  of a  dissolved corporation.   We  agree

            with the district court's analysis and ruling.

                      Section  27-7-2  generally  bars a  plaintiff  from

            joining  an  insurer as  a defendant  in  a suit  against the

            insured, a so-called  "direct action."  An  exception to that

            bar  applies "where before suit has  been brought and probate





                                         -20-
                                          20















            proceedings have  not been initiated the  insured has died."4

            R.I. Gen. Laws    27-7-2.  Carreiro argues that  Leach "died"

            when  it  dissolved  in  1982, and  therefore  the  foregoing

            exception applies.

                      Carreiro's suggested interpretation of  section 27-

            2-2 is unpersuasive.  Although the statute's language  is not

            without difficulty, the Rhode Island Supreme Court has stated

            that section 27-7-2 is "free  from ambiguity and expresses  a

            plain  and sensible  meaning" and  "the meaning  so expressed

            will be conclusively presumed  to be the one intended  by the

            Legislature."   Chalou v. LaPierre, 443 A.2d 1241, 1241 (R.I.
                            ______    ________

            1982).   The plain and  sensible meaning of  the statute does

            not  authorize  direct  actions  against  the  insurer  of  a

            dissolved corporation for the following reasons.

                      First,  the  plain and  sensible meaning  of "died"

            does  not  embrace  the  dissolution of  a  corporation,  and

            Carreiro points to  no Rhode Island authority supporting such

            an interpretation.

                      Second,  the  legislature  surely  understood  that

            corporations do not enter  probate proceedings; this strongly


                                
            ____________________

            4.  The syntax of the statute is rather convoluted.  Contrary
            to what the statute suggests, we believe that probate
            proceedings in Rhode Island are never initiated before death. 
            The Rhode Island Supreme Court has given this provision its
            only logical meaning - that "where probate proceedings have
            been initiated before suit is brought, the plaintiff may not
            proceed directly against the insurer."  Markham v. Allstate
                                                    _______    ________
            Ins. Co., 352 A.2d 651, 653 (R.I. 1976).
            ________

                                         -21-
                                          21















            implies that it  did not  intend to apply  this exception  to

            corporations.   Furthermore, the  statute provides  that once

            probate has been initiated, direct action against the insurer

            of a deceased  natural person  is no longer  available.   See
                                                                      ___

            Markham  v. Allstate Ins. Co., 352 A.2d 651, 653 (R.I. 1976).
            _______     _________________

            Thus, the legislature intended  this exception to the general

            rule  barring direct  action to  apply only  during  the time

            between  the  death  of  the insured  and  the  initiation of

            probate.  If we accept Carreiro's interpretation, there would

            be  no  analogous temporal  limitation  on  the exception  as

            applied to  a dissolved  corporation since probate  cannot be

            initiated.   Under  that  view an  insurer  would be  forever

            amenable  to direct action, and there is no reason to believe

            that the legislature intended such a result.

                      Third,  Carreiro's  proposed interpretation  of the

            statute would increase the insurer's liability beyond that of

            the  insured.   The  Supreme Court  of  Rhode Island  held in

            Barber  v. Canela, 570 A.2d 670 (R.I. 1990), that section 27-
            ______     ______

            7-2 did not enlarge  the liability of the insurer  beyond the

            limits  stated in the  policy.   It set  forth as  a "general

            rule"  that any rights of a plaintiff against the insurer are

            "dependent upon the existence of liability of the insurer  to

            the insured under  the contract  of insurance."   Id. at  671
                                                              ___

            (quoting George  J. Couch, et  al., 12A  Couch Cyclopedia  of
                                                     ____________________

            Insurance Law  2d   45:833 at  486 (1981)).  A  direct action
            _________________



                                         -22-
                                          22















            here,  where the  insured  cannot be  sued  because it  is  a

            dissolved corporation, would contravene  that rule.  It would

            be  unreasonable  for  us  to reach  that  result  through  a

            tortured  interpretation of the statute and without precedent

            under Rhode Island law.

                      In light  of the foregoing, we  find it unnecessary

            to  certify this  statutory  interpretation  question to  the

            Supreme  Court of Rhode  Island as  Carreiro urges.   Because

            section 27-7-2 generally prohibits direct actions against the

            insurer of a potentially liable party and because we conclude

            that  Carreiro's  suit  does  not fit  within  the  statutory

            exceptions to  that prohibition,  we affirm the  dismissal of

            Rumford. 

            F.  Main's Indemnification Claim Against Robbins
            ________________________________________________

                      Because  we  affirm the  district court's  grant of

            summary judgment  in favor  of Main on  Carreiro's complaint,

            Main's    appeal   seeking   to    revive   its   third-party

            indemnification claim against Robbins is moot.

                                         IV.
                                         IV.
                                         ___

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      For  the foregoing  reasons, the  decisions of  the

            district court are affirmed.
                               affirmed
                               ________









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