Dykes v. Depuy, Inc.

• Court: Court of Appeals for the First Circuit
• Decided: April 3, 1998
• Docket: 97-1592
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1592



                            JIM DYKES,



                      Plaintiff, Appellant,



                                v.



                           DEPUY, INC.,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



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


Before



                      Stahl Circuit Judge,

                                

          Campbell and Bownes, Senior Circuit Judges.


David C. Casey, with whom Michael G. Donovan and Peckham,

Lobel, Casey, Prince & Tye were on brief, for appellant.

     Donald E. Knebel, with whom Dwight D. Lueck and Barnes &

Thornburg were on brief, for appellee.


April 3, 1998


CAMPBELL, Senior Circuit Judge.  This appeal arises from

the district court's grant of summary judgment in favor of

defendant-appellee DePuy, Inc. ("DePuy") on six counts of an

eleven-count amended complaint brought against DePuy by plaintiff-

appellant Jim Dykes.  In 1994, DePuy terminated Dykes and his firm

from continuing to act as its New England sales representative. 

Dykes had, by then, represented DePuy in one or another capacity

for over sixteen years.  When terminated, Dykes was still four

years away from possible qualification under DePuy's "Compensation

Upon Termination" program, which would have allowed him to claim a

substantial annual income for ten years.  He sued DePuy alleging

federal claims under ERISA and the ADA, and state claims, including

bad faith termination.  In awarding summary judgment to DePuy, the

district court concluded, inter alia, that Dykes was an independent

contractor, hence barred from suing under ERISA and the ADA.  The

court further rejected his state-law claims for bad faith

termination.  The court also refused to allow Dykes to engage in

further discovery.  We affirm.

                         I. BACKGROUND

  Because this case comes to us after a grant of summary

judgment, we state the facts in the light most favorable to the

nonmoving party, indulging all inferences in that party's favor. 

See Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996).

  DePuy is an Indiana-based company that manufactures

orthopedic products.  During the time period relevant to this

action, DePuy marketed its products via a network of "sales

representatives," each of which was responsible for sales within an

assigned territory.  Sales representatives, in turn, hired "sales

associates" to help them conduct business.

  In 1977, Dykes was hired as a sales associate by DePuy-

Morse, a sales representative of DePuy located in South Easton,

Massachusetts.  Dykes held that position until 1981, when he was

hired as a sales associate by Ron Wood of Wood-Yates, a sales

representative of DePuy located in Cheshire, Connecticut.  Dykes

performed extremely well as a sales associate; he was named Sales

Associate of the Year in 1986.

  In 1988, when Dykes learned that Ron Wood planned on

retiring, Dykes formed Health Systems, Inc. ("Health Systems").  On

July 1, 1988, Health Systems, Dykes, and DePuy entered into a Sales

Representative Agreement ("SRA").  According to the SRA, Health

Systems was the "Representative," defined as the "exclusive Sales

Representative for all products sold by DePuy," and Dykes was the

"Principal," meaning that he was the "owner of all or substantially

all of the outstanding shares of Representative."

  The SRA not only set out the terms under which the

parties would conduct business but also undertook to define the

legal relationship between the parties.  Thus, it expressly

declared that the Representative was an independent contractor and

that the persons hired by the Representative were not employees or

independent contractors of DePuy itself. The SRA gave the

Representative discretion regarding the time and manner of making

sales calls and the responsibility for paying taxes, unemployment

compensation, workers' compensation, and insurance premiums.  The

SRA lasted for one year and renewed automatically "unless

terminated by either party giving at least 90 days' notice prior to

the end of the initial period or any renewal period."  The SRA did

not require "good cause" termination or place any other limitation

on the parties' ability to sever their relationship.

  Pursuant to the SRA, DePuy offered a "Compensation Upon

Termination" program to its sales representatives.  Under this

program, Dykes would receive substantial compensation on an annual

basis for a period of ten years after the termination of the SRA

if, and only if, he satisfied certain conditions precedent.  In

order to qualify, Dykes had to work at least fifteen years as a

sales representative, or a combination of twenty years as a sales

representative and sales associate, with at least ten years as a

sales representative.  In addition, Dykes had to sell a certain

volume of DePuy's products in the year before the termination of

the SRA.  The SRA expressly provided that the Compensation Upon

Termination program,

  shall not restrict the right of DePuy to

  terminate Representative or restrict the right

  of Representative to terminate its

  relationship with DePuy.  If that relationship

  is terminated before Representative and

  Principal have met the conditions

  precedent . . . , Representative and Principal

  will have no rights under this Agreement.



According to Dykes, DePuy frequently promoted the Compensation Upon

Termination program to maintain the sales representatives' loyalty

and to ensure their longevity with the company.

  As a DePuy sales representative, Health Systems was

responsible for selling DePuy's products in "DePuy New England," a

territory defined by DePuy that included Maine, Vermont, most of

New Hampshire, Connecticut, and portions of Massachusetts.  As the

Principal of Health Systems, Dykes had a great deal of autonomy. 

For example, he himself decided how much compensation he would

receive.  DePuy never asked Dykes how many hours he worked and

Dykes could take a vacation without notifying DePuy.  Dykes could

not recall sending DePuy any information on Health Systems's

expenses or profits.  DePuy provided an educational allowance to

enable representatives to conduct seminars in their territory and

a "bonus commission program" designed to help representatives buy

medical instruments and hire sales associates, but Dykes could

choose whether to avail himself of these benefits.

  Dykes also controlled the day-to-day operation of Health

Systems.  He hired and established salaries for his office staff

without consulting DePuy.  He hired and paid his wife to assist him

with Health Systems's business.  Dykes fired at least one sales

associate without DePuy's prior knowledge.  Commissions on the

sales made by Dykes's sales associates were paid by DePuy at first

to Dykes, and then to Health Systems.  DePuy reported this income

on Form 1099s, not W-2s, and did not withhold taxes.  In turn,

Dykes paid his each of his sales associates a commission agreed

upon between Dykes and the individual associate.  Dykes also did

not withhold taxes from the commission checks, opting rather to

send Form 1099s to the sales associates at the end of the year.  

Dykes does not recall sending DePuy any information on how much he

paid his sales associates.  

  Under the terms of the SRA, Health Systems was

responsible for providing health insurance for Dykes, the sales

associates and office staff.  DePuy recommended a particular health

insurance provider and urged its sales representatives to use that

provider.  Health Systems used that provider for a while, but later

switched carriers to obtain a cheaper premium rate.  DePuy raised

no objection to the change. 

  Health Systems was solely responsible for its business

accommodations.  It paid rent on and maintained its own office

space.  It also paid for its office furniture and supplies.

  Despite the fact that Dykes was, in many ways, running

his own business, DePuy maintained some control over Health

Systems.  A clause in the SRA required Dykes to devote all of his

professional efforts toward promoting only DePuy's products unless

he obtained express written consent from DePuy.  The SRA also

stated that "Representative and Principal shall be guided by the

DePuy Sales Policy Manual and other DePuy policies that are made

known to Representative."  DePuy generated marketing materials that

Representatives were required to use.  DePuy's Sales Advisory

Committee produced directives containing advice on how to sell

DePuy's products that it distributed to sales representatives.  In

addition, all customer billing was processed through DePuy's

headquarters in Indiana.

  Dykes and Health Systems were successful at selling

DePuy's products.  From July 1988 through December 1993, sales in

DePuy New England grew over twenty-six percent, eight percent above

DePuy's national average, and the territory's market share rose

from two percent to five-and-a-half percent.  In 1991, Dykes

received additional territory from DePuy and entered into a new

SRA, which contained similar terms to the 1988 agreement.

  Despite this success, DePuy timely notified Dykes that

his SRA would terminate on April 1, 1994.  At the time of

termination, Dykes had sold DePuy's products for over sixteen years

and was four years away from qualifying for the Compensation Upon

Termination program.  Dykes alleges that DePuy terminated his SRA

in order to prevent him from collecting his benefits.  To support

this assertion, Dykes introduced affidavits from several former

sales representatives, including one who stated that DePuy's CEO

had declared that "DePuy's sales representatives did not deserve

their retirement compensation and that he would see that they did

not get it."  Dykes has discovered that at least twenty-nine out

of forty-four sales representatives were terminated prior to

vesting. 

     After DePuy terminated its SRA with Dykes and Health

Systems, Dykes became a sales associate on a month-to-month basis. 

During his first month under this new arrangement, Dykes was

diagnosed with cancer and underwent related surgery.  On May 12,

Dykes informed DePuy that he would begin chemotherapy soon.  Five

days later, DePuy terminated Dykes as a month-to-month sales

associate.  Later in 1994, DePuy began replacing its regional sales

representatives with "Territory Managers," who DePuy admits are

employees.

     On January 12, 1995, Dykes filed a complaint against

DePuy in the United States District Court for the District of

Massachusetts.  When amended, his complaint alleged eleven counts,

including violations of the Employee Retirement Income Security Act

("ERISA"), 29 U.S.C.  1001 et seq., the Americans with

Disabilities Act ("ADA"), 42 U.S.C.  12101 et seq., and various

state-law claims.

     On May 7, 1996, Dykes filed a motion to compel 

discovery, including of information regarding whether other sales

representatives had successfully claimed their Compensation Upon

Termination.  After a hearing, the magistrate judge granted Dykes's

motion in part, but denied Dykes's request for information on

DePuy's sales representatives.

     On August 21, 1996, DePuy moved for summary judgment on

all of Dykes's claims.  Discovery closed roughly three months

later, on November 30, 1996.  A little more than a week after that,

Dykes filed a motion for reconsideration of the magistrate judge's

partial denial of his motion to compel.  Dykes had not sought any

extension to the discovery deadline, but blames his delay on

inaccuracies in the information produced by DePuy.  On December 13,

Dykes filed his opposition to DePuy's motion for summary judgment.

     After a hearing, the district court issued a memorandum

and order granting DePuy's motion for summary judgment on all

Dykes's federal counts and some of his state counts.  The court

dismissed without prejudice the remaining state-law claims.

     On March 10, 1997, Dykes filed a motion seeking to delay

the entry of final judgment until after the resolution of his

motion for partial reconsideration.  The next day, the magistrate

judge denied Dykes's motion for partial reconsideration of his

earlier discovery order.  Three days later, the district court

denied Dykes's motions for reconsideration of its grant of summary

judgment and affirmed the magistrate judge's denial of his motion

to compel.  After final judgment issued, Dykes took this appeal.

                     II. STANDARD OF REVIEW

     The granting of summary judgment is reviewed de novo, the

entire record being seen "in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party's favor."  Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st

Cir. 1990) (citations omitted).  Summary judgment is appropriate

only if "the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."  Fed.

R. Civ. P. 56(c).

     Summary judgment may properly be awarded against a party

who, "after adequate time for discovery . . . fails to make a

showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear

the burden of proof at trial."  Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).  And summary judgment is not precluded by just any

factual quibble:  "The evidence manifesting the dispute must be

'substantial,' going beyond the allegations of the complaint." 

Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (citations

omitted).  To prevail over a properly supported motion for summary

judgment, a nonmoving party must establish the existence of a

trial-worthy issue by presenting "enough competent evidence to

enable a finding favorable to the nonmoving party."  Goldman v.

First Nat'l Bank, 985 F.2d 1113, 1116 (1st Cir. 1993) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

     We review the district court's denial of Dykes's motion

to compel discovery and motion for partial reconsideration under an

abuse of discretion standard.  See Ayala-Gerena v. Bristol Myers-

Squibb Co., 95 F.3d 86, 91 (1st Cir. 1996).

                        III. DISCUSSION

     Dykes raises three issues on appeal.  First, whether the

district court properly determined that he had failed to raise a

genuine issue of material fact regarding whether he was an employee

rather than an independent contractor.  Second, whether the

district court correctly granted summary judgment on his state-law

claims alleging breach of the implied covenant of good faith and

fair dealing.  Third, whether the court below abused its discretion

by denying his request for reconsideration of the magistrate

judge's discovery ruling.

A.   Dykes's Employment Status.

     Three of Dykes's contentions stand or fall on whether he

was an employee rather than an independent contractor.  Both ERISA

(Count II) and the Massachusetts Antidiscrimination Statute, Mass.

Gen. Laws Ann. ch. 151B (Count X), protect employees, but neither

extends to independent contractors.  See Nationwide Mut. Ins. Co.v. Darden, 503 U.S. 318, 320-21 (1992) (ERISA does not reach

independent contractors); Speen v. Crown Clothing Corp., 102 F.3d

625, 628-29 (1st Cir. 1996) (Massachusetts Antidiscrimination

Statute covers only employees, not independent contractors); Comeyv. Hill, 438 N.E.2d 811, 814 (Mass. 1982) (same).  The parties

agree that the ADA (Count XI) also applies only to employees.  

Accordingly, in order to avoid DePuy's motion for summary judgment

on these statutory claims, Dykes must produce evidence sufficient

to allow a reasonable factfinder to conclude that he was a DePuy

employee.  See Anderson, 477 U.S. at 248-49.

     To determine whether a plaintiff qualifies as a protected

employee under ERISA or the Massachusetts Antidiscrimination

Statute, this court will ordinarily utilize the traditional common

law test of agency.  See  Speen 102 F.3d at 632.  The test provides

"no shorthand formula or magic phrase that can be applied to find

the answer, . . . all of the incidents of the relationship must be

assessed and weighed with no one factor being decisive."  Darden,

503 U.S. at 324 (quoting NLRB v. United Ins. Co. of Am., 390 U.S.

254, 258 (1968)).  The lower courts should consider:

     the hiring party's right to control the manner

     and means by which the product is

     accomplished.  Among the other factors

     relevant to this inquiry are the skill

     required; the source of the instrumentalities

     and tools; the location of the work; the

     duration of the relationship between the

     parties; whether the hiring party has the

     right to assign additional projects to the

     hired party; the extent of the hired party's

     discretion over when and how long to work; the

     method of payment; the hired party's role in

     hiring and paying assistants; whether the work

     is part of the regular business of the hiring

     party; whether the hiring party is in

     business; the provision of employee benefits;

     and the tax treatment of the hired party.



Id. at 323-24 (quoting Community for Creative Non-Violence v. Reid,

490 U.S. 730, 751-52 (1989)).

     We shall employ the same common law agency test in

assessing Dykes's status for purposes of his ADA claim.  A major

reason given by the Supreme Court for its adoption of the common

law test in the ERISA context was ERISA's "completely circular"

definition of the term "employee."  Id. at 323.  That definition of

"employee"   "any individual employed by any employer," 29 U.S.C. 

1002(6)   is virtually the same as the ADA's definition   "an

individual employed by an employer," 42 U.S.C.  12111(4).  Hence

the same common law agency standards seem appropriate for deciding

whether Dykes was an employee for ADA purposes.  See also Birchem,

116 F.3d at 312 (applying the common law test to an ADA claim).

     Turning to the present case, the facts relevant to

Dykes's claim to be DePuy's employee are much the same as those

that we considered in Speen.  In that case, applying the common law

test of agency, this court held that Speen, a traveling salesman,

had failed to raise a triable issue regarding his asserted employee

status.  See Speen, 102 F.3d at 632-34.  Finding Speen to be an

independent contractor, we affirmed judgment as a matter of law for

the defendant on Speen's ADEA, ERISA, and state discrimination

claims.  See id. at 634.

     Like Speen, Dykes enjoyed broad control over his day-to-

day business: he set his own hours, paid his own salary, and

decided where and when to make sales calls.  Neither salesman had

to report regularly to a corporate headquarters.  Both Dykes and

Speen sold the same brand of product for over fifteen years.  Both

conducted business through their own corporate entities and both

were paid on a commission basis.  Both received Form 1099s rather

than W-2s for federal tax purposes.

     Further, because Dykes ran his own business, he enjoyed

greater freedom than Speen in several important ways.  The evidence

demonstrates that Dykes controlled the employment and salaries of

his office staff and sales associates.  Dykes and Health Systems

rented and maintained office space and acquired office furniture. 

Also, whereas Speen was required to phone his sales numbers in to

the home office daily, DePuy had no knowledge of Dykes's expenses

and profits.  Moreover, unlike Speen, Dykes had a signed written

contract that clearly stated that he was an independent contractor,

and that "[a]ll personnel of Representative [Health Systems] shall

be employees, or independent contractors of Representative, and not

of DePuy."

     Dykes tries to escape from under the shadow of Speen by

arguing that DePuy maintained more control over his business than

Crown Clothing did over Speen's.  Dykes does not persuade us. 

Several of the arguments that Dykes makes to distinguish Speen are

not supported by the record.  Some of his other arguments cut in

both directions.  For example, Dykes argues that internal memoranda

and marketing directives produced by DePuy limited his business

discretion greatly.  Dykes supports this argument by claiming that

DePuy required him to hire a medical specialist if he wanted to

sell spine products.  This piece of evidence cuts both ways, as it

demonstrates that Dykes had discretion over which products he

wished to sell.  See Johnson v. Equitable Life Assurance Soc'y of

the United States, 1997 WL 417409, at *3 (N.D. Ill. July 22, 1997)

(finding that discretion over which products to sell points toward

independent contractor status).

     Dykes insists that the Compensation Upon Termination

program was a retirement program used by DePuy to control its sales

representatives to such a degree that they effectively became

employees of DePuy.  The program, however, depended on several

contingencies prior to vesting, and while it undoubtedly provided

a strong incentive for sales representatives to want to maintain

their contractual relationship with DePuy, it does not overcome the

many indicia that that relationship was one of independent

contract, not employment.  

     We conclude that a reasonable factfinder could not find

on this record that DePuy was Dykes's employer.  Dykes has pointed

to no case law in which a court has held, on similar facts, that an

employer-employee relationship existed.  Under the multi-factored

common law test of agency, and in light of Speen, Dykes has failed

to raise genuine factual issues regarding his employment status. 

Since as a matter of law Dykes was an independent contractor, the

district court properly granted summary judgment on Dykes's ERISA,

ADA, and state antidiscrimination claims.

B.   Dykes's Allegations Regarding Breach of the Implied

     Covenant of Good Faith and Fair Dealing.

     Dykes alleges that DePuy improperly terminated his

relationship in bad faith in order to avoid paying him his

Compensation Upon Termination (Count I).  When facing a claim that

does not arise under the Constitution or the laws of the United

States, a federal court must apply the substantive law of the forum

in which it sits, including that state's conflict-of-laws

provisions.  See Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487,

496 (1941).  This principal applies with equal force to a state-law

claim brought under supplemental jurisdiction, such as this. 

See Bi-Rite Enters., Inc. v. Bruce Miner Co., 757 F.2d 440, 442

(1st Cir. 1985) (citing United Mine Workers v. Gibbs, 383 U.S. 715,

726 (1966)).  Thus, we must determine what law a Massachusetts

court would apply.

     If two contracting parties express "a specific intent as

to the governing law, Massachusetts courts will uphold the parties'

choice as long as the result is not contrary to public policy and

as long as the designated State has some substantial relation to

the contract."  See Steranko v. Inforex, Inc., 362 N.E.2d 222, 228

(Mass. App. Ct. 1977) (citations omitted).  The SRA signed by Dykes

and DePuy states that it is "governed by and interpreted in

accordance with the laws of the State of Indiana."  Neither of the

parties here argues that application of Indiana law would

contravene public policy.  Since DePuy is headquartered in Indiana,

that state bears a "substantial relation to the contract."  Id. 

Accordingly, if Dykes's claims for breach of good faith and fair

dealing arise from the SRA, we will apply Indiana law.

     Dykes seeks to avoid this result by arguing that Count I

of his complaint somehow presents a cause of action for wrongful

discharge distinct from Dykes's contract and that therefore Count

I should be evaluated under the substantive law of Massachusetts. 

We believe that Dykes's claim can properly be understood only as a

claim for breach of an implied term of the SRA, the contract

governing his relationship with DePuy.  For that reason, it is

governed by Indiana law.

  In order to support his contention that his "wrongful

termination" rests solely on Massachusetts's law, Dykes relies on

a line of Massachusetts cases that have held that an employee at-

will who is fired without good cause may recover amounts wrongfully

withheld by an employer.  See Fortune v. National Cash Register

Co., 364 N.E.2d 1251, 1255-56 (Mass. 1977).  It is true that

Dykes's arrangement was "at-will," in that under the SRA either

party could withdraw upon giving ninety days' notice.  However,

Fortune, the case that created this exception to the general

presumption that an at-will employee may be fired for any reason or

no reason at all, states expressly that "termination by the

employer of a contract of employment at will which is motivated by

bad faith or malice . . . constitutes a breach of the employment

contract."  Id.  This language belies any notion of a cause

separable from the employment contract; rather the Massachusetts

Supreme Judicial Court appears to have infused Massachusetts

express or implied at-will employment contracts with an implied

term that they be executed in good faith.  If there is a

Massachusetts legal requirement that cabined DePuy's ability to

terminate its arrangement with Dykes it would arise as a covenant

implied within the SRA itself.  Dykes alleges that the bad faith

reason for terminating him was DePuy's desire to avoid paying Dykes

any money under the Compensation Upon Termination program.  Since

the program was created by the SRA, any rights that Dykes might

have are inextricably bound up with that agreement.  We conclude

that a Massachusetts court, following the SRA's choice of law

provision, would look to Indiana substantive law to evaluate Count

I of Dykes's complaint.

     Further, the parties agree that Dykes's two separate

allegations of breach of the duty of good faith and fair dealing,

Counts III and VIII, both arise under the SRA.  In light of our

discussion above, then, we apply Indiana law for the purposes of

determining Dykes's rights relative to those claims as well.

     The SRA allows either party to terminate the agreement

for any reason or no reason, provided only that the terminating

party give ninety days' notice.  Dykes does not argue that DePuy

provided insufficient notice.  DePuy, therefore, was within at

least its express contractual rights in terminating its arrangement

with Dykes.

     As noted, courts in some states limit employers'

discretion to sever at-will employment relationships by reading a

duty of good faith and fair dealing into at-will employment

contracts.  See, e.g., Mitford v. de Lasala, 666 P.2d 1000, 1007

(Alaska 1983); Fortune, 364 N.E.2d at 1255-56 (Massachusetts); Hallv. Farmers Ins. Exch., 713 P.2d 1027, 1029-30 (Okla. 1985). 

Indiana courts, however, have taken the position that there is no

general implied duty of good faith and fair dealing in at-will

employment contracts.  See Mehling v. Dubois County Farm Bureau

Coop. Ass'n, Inc., 601 N.E.2d 5, 9 (Ind. Ct. App. 1992) (declaring

that "Indiana does not recognize a covenant of good faith and fair

dealing in [the at-will employment] context"); Hamblen v. Danners,

Inc., 478 N.E.2d 926, 929 (Ind. Ct. App. 1985) (same); see also Bob

Nicholson Appliance, Inc. v. Maytag Co., 883 F. Supp. 321, 327

(S.D. Ind. 1994) (observing that "[i]t is well-known that Indiana

does not recognize an implied good faith and fair dealing in

contracts").  The Indiana Supreme Court has declared that, if

contract language is clear, "[i]t is not the province of the courts

to require a party acting pursuant to such a contract to be

'reasonable,' 'fair,' or show 'good faith' cooperation."  First

Fed. Sav. Bank  v. Key Markets, Inc., 559 N.E.2d 600, 604 (Ind.

1990).

     The primary exception to this rule is that a court may

imply a duty of good faith if it is necessary to "effectuate the

clear intent of the parties."  Prudential Ins. Co. of Am. v.

Crouch, 606 F. Supp. 464, 469 (S.D. Ind. 1985) (interpreting

Indiana law); see also Key Markets, 559 N.E.2d at 605; Hamlin v.

Steward, 622 N.E.2d 535, 540-41 (Ind. Ct. App. 1993).  In the

present case, however, the language of the SRA is unambiguous.  It

sets forth with clarity the conditions precedent to claiming under

the Compensation Upon Termination program.  It expressly provides

that the program "shall not restrict the right of DePuy to

terminate the Representative" and that "termination before

Representative and Principal have met the conditions precedent"

will leave no rights under the agreement.  In a situation such as

this one, we believe that Key Markets runs contrary to implying a

duty of good faith and fair dealing and that, therefore, Dykes's

state claims must fail.

     Dykes relies upon an Indiana intermediate appellate court

decision to argue that Indiana courts are changing their

traditional view of contract interpretation.  See Weiser v. Godby

Bros., Inc., 659 N.E.2d 237 (Ind. Ct. App. 1996).  In Weiser, the

court reversed a lower court's grant of summary judgment in favor

of a defendant who told an at-will employee to "[s]ign [a new

contract] or clean out your desk and you will be fired."  Id. at

239.  A one-judge plurality stated that, "[a]lthough the contract

terms may be wholly unambiguous and, thus, not amenable to a fair

dealing requirement, the formulation of that contract is

susceptible to a good faith/fair dealing analysis."  Id.  We are

not persuaded.

     First, Weiser applied the fair dealing analysis to the

formation of the contract only; the judge expressly noted that

there is no general fair dealing requirement under state law. 

Since Dykes does not argue that he was coerced into signing the

SRA, Weiser is inapposite.  Second, the other two judges on the

panel did not join in the good faith and fair dealing analysis used

by the plurality judge, rendering Weiser of "no precedential value." 

Robinson v. Century Personnel, Inc., 678 N.E.2d 1268, 1270 n.2

(Ind. Ct. App. 1997).  Third, another Indiana appellate court has

recently disavowed Weiser, calling its continued viability into 

question.  See id. (stating, "[i]n any event, we agree with the

dissent in Weiser").

     We conclude that the applicable Indiana law precludes

Dykes from recovering on his good faith claims.  Although we need

not reach the question, we also agree with the district court that

Dykes could likely not recover under Massachusetts law either. 

This is so because Massachusetts allows plaintiffs in Dykes's

position to recover only "reasonably ascertainable future

compensation based upon [] past services."  Gram I, 429 N.E.2d at

29.  Thus, the compensation that the plaintiff seeks must be

"specifically related to a particular past service."  McCone v. New

England Tel. & Tel. Co., 471 N.E.2d 47, 50 (Mass. 1984).  In this

case, Dykes was four years away from qualifying for payment under

DePuy's Compensation Upon Termination program.  Moreover, he had to

meet a yet-to-be-determined sales quota in his final year.  In

these circumstances, it appears that Dykes's claim would be denied

by Massachusetts courts as overly speculative.  Cf.  Gram v.

Liberty Mut. Ins. Co., 461 N.E.2d 796, 798 (Mass. 1984) ("Gram II")

(denying a plaintiff recovery for lost "career credits," which were

bonus payments "based upon the length of Gram's service as a sales

representative").

     We conclude that the district court properly granted

summary judgment on Dykes's good faith claims, and affirm as to

Counts I, III & VIII.

C.   Dykes's Motion for Reconsideration of the Magistrate

     Judge's Discovery Order.

     Dykes also appeals from the magistrate judge's denial of

his request to compel DePuy to release information relating to

whether any sales representatives successfully claimed their

Compensation Upon Termination benefits.  Dykes sought this

information to establish that DePuy's stated reasons for his

termination were pretextual.  Dykes claims that this information is

"directly related to claims upon which the District Court granted

summary judgment."  We cannot agree.

     Even if Dykes were to obtain the requested discovery and

DePuy's asserted reasons for terminating him were pretextual, he

could still not recover.  Not being an employee, he is not

protected by federal and state antidiscrimination statutes.  And

under applicable state law he may not recover for breach of an

implied duty of good faith and fair dealing.  No viable claims

remain.  Hence, any possible abuse of discretion in denying

Dykes's motion to compel was harmless.

     Affirmed.  Costs to appellee.