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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

WILLIAM W. ADAMS, of Millinocket, County of Penobscot, et al., all of the State of Maine,

) ) ) ) ) Plaintiffs ) ) v. ) ) BOWATER INCORPORATED; ) and BOWATER INCORPORATED ) PENSION PLAN FOR CERTAIN ) EMPLOYEES OF GREAT ) NORTHERN PAPER, INC., and ) DOES 1 THROUGH 20, all doing ) business in the State of Maine, ) ) Defendants )

Civil No. 00-12-B-C

RECOMMENDED DECISION Defendants, Bowater Incorporated ("Bowater") and the Bowater Incorporated Pension Plan for Certain Employees of Great Northern Paper, Inc. ("the Plan"), have moved for summary judgment on Counts II and III of the Complaint. (Docket No. 40). In response, Plaintiffs have requested that the court defer ruling on the motion pending additional discovery and have filed a supporting affidavit pursuant to Rule 56(f). (Docket No. 56). Finding no reason to defer ruling pending further discovery, I recommend that the Court DENY the motion for summary judgment. Summary Judgment Standard 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). "[A] `material' fact is one that might affect the outcome of the suit under governing law." Fajardo Shopping Ctr., S.E. v. Sun Alliance Ins. Co., Inc., 167 F.3d 1, 6 (1st Cir. 1999). "A trialworthy issue exists if the evidence is such that there is a factual controversy pertaining to an issue that may affect the outcome of the litigation under the governing law, and the evidence is `sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.'" De-Jesus-Adorno v. Browning Ferris Ind, 160 F.3d 839, 841-42 (1st Cir. 1998) (quoting Nat'l Amusements v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995)). The Court views the record on summary judgment in the light most favorable to the nonmovant. See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 50 (1st Cir. 2000). However, summary judgment is appropriate "against a party who 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). Once the moving party has presented evidence of the absence of a genuine issue, the nonmoving party must respond by "placing at least one material fact in dispute." FDIC v. Anchor Props., 13 F.3d 27, 30 (1st Cir. 1994) (citing Darr v. Muratore, 8 F.3d 854, 859 (1st Cir. 1993)).

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Facts 1 The Count II and III Plaintiffs are ten employee participants in the Plan, employed by Great Northern Paper, Inc. ("GNP"). Under the pension plan, GNP employees could chose among various options for early retirement. Defendants' Statement of Material Facts at

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Maine Law