HSBC Realty Credit Corp. (USA) v. O'Neill , 745 F.3d 564 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1214
HSBC REALTY CREDIT CORPORATION (USA),
Plaintiff, Appellee,
v.
J. BRIAN O'NEILL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Ripple,* and Thompson,
Circuit Judges.
John J. Jacko III, with whom Alan S. Fellheimer and Fellheimer
& Eichen LLP were on brief, for appellant.
David J. McNamara, with whom Peter C. Obersheimer and Phillips
Lytle LLP were on brief, for appellee.
February 7, 2014
*
Of the Seventh Circuit, sitting by designation.
THOMPSON, Circuit Judge.
OVERVIEW
Today's case — a diversity suit governed, the parties
agree, by Massachusetts substantive law — arises from the efforts
of plaintiff HSBC Realty Credit Corporation (USA) to recover $8.1
million from defendant J. Brian O'Neill under a guaranty. A
district judge struck O'Neill's defenses, dismissed his
counterclaims, denied him leave to replead, and granted HSBC
judgment on the pleadings. O'Neill appeals. But after saying what
needs to be said, we affirm.
HOW THE CASE GOT HERE
Given the litigation's present posture, we describe the
facts alleged in the pleadings — discussing too the documents
fairly incorporated within them — in the light most agreeable to
O'Neill, drawing every reasonable inference in his favor. See,
e.g., Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir.
2012).
The Players and the Project
HSBC is a Delaware corporation with its principal place
of business in New York. O'Neill is a Pennsylvania resident who is
a principal of a company called Brandywine Partners, LLC.1 Back in
1
A quick "fyi": Citizenship is what matters for diversity-
jurisdiction purposes, see 28 U.S.C. § 1332(a)(1) — and a
corporation is a citizen of both the state where it is incorporated
and the state where it has its principal place of business, id.
§ 1332(c)(1), while a person is a citizen of the state where he is
-2-
the mid-2000s, Brandywine wanted to buy a particular piece of
industrial property in Delaware and redevelop it for residential
use. Because of some fairly serious environmental problems with
the Delaware site, Brandywine concluded — after an extensive
investigation — that the best course of action was to raze the
existing buildings and start from scratch. Eventually Brandywine
turned to HSBC for a loan. And HSBC agreed to dole out $15.9
million pursuant to a project-loan agreement between them.
The Project-Loan Agreement
Among other things, the project-loan agreement requires
Brandywine to pay for an appraisal of the property. And the
agreement says that this appraisal has to yield a loan-to-value
ratio of no more than 60%. That condition, the document continues,
is for HSBC's "sole benefit," meaning "no other person" has "the
right to rely on" its "satisfaction."2 Using that ratio, the
domiciled, which (at the risk of oversimplification) is the place
where he intends to remain, see Rodríguez v. Señor Frog's de la
Isla, Inc., 642 F.3d 28, 32 (1st Cir. 2011).
2
As a heads-up, whenever we quote a document in the text, we
do away with unnecessary capitalization or bolding of words. But
to give the reader a better sense of the documents' setup, we
present some of the relevant provisions (like these ones) in
footnotes, reproducing them essentially as they appear in the
papers:
-3-
property's appraised value had to be at least $26.5 million to
support the $15.9 million loan — or so O'Neill alleges.3 Also
relevant, Brandywine expressly "acknowledges" in the project-loan
agreement that HSBC was "rel[ying] on the experience of
[Brandywine] and its general partners, members, [and] principals
. . . in owning and operating" properties like this and that HSBC
"ha[s] a valid interest in maintaining" the property's "value . . .
to ensure that, should [Brandywine] default in the repayment and
II. THE LOAN
. . .
Section 2.9 Conditions Precedent to Disbursement of
Project Loan Proceeds.
2.9.1 Conditions of Advances. . . .
. . .
(p) Appraisal. [HSBC] shall have received [an]
. . . appraisal of the Property, commissioned by [HSBC]
at [Brandywine's] cost and expense, that indicates an "as
is" Loan-to-Value Ratio which does not exceed 60% and
that is otherwise satisfactory to [HSBC] in its sole
discretion.
. . .
2.9.3 No Reliance. All conditions and requirements
of this Agreement are for the sole benefit of [HSBC] and
no other Person . . . shall have the right to rely on the
satisfaction of such conditions and requirements by
[Brandywine].
3
The loan documents say nothing about the property's value.
But O'Neill theorizes that HSBC must have pegged the property's
value at $26.5 million, because the project-loan agreement provides
that the $15.9 million loan amount cannot exceed 60% of the
property's value.
-4-
performance of the obligations under the project loan documents,
[HSBC] can recover the obligations" by selling the property.4 Of
note too, Brandywine signed a promissory note and gave HSBC a
mortgage on the Delaware property (among other things).
The Guaranty
Because, as he acknowledged, HSBC would not lend
Brandywine a cent unless he "unconditionally" guaranteed the loan's
repayment, O'Neill signed an "absolut[e]" personal guaranty for the
loan, agreeing that he had a "direct or indirect interest" in
Brandywine (and so would "directly benefit" from the loan) and that
he occupied the status of "primary obligor" of the "guaranteed
obligations" (defined as the "prompt and unconditional payment by
4
That piece of the project-loan agreement is set out this
way:
VI. TRANSFERS
Section 6.1 Agent's and Lenders' Reliance.
[Brandywine] acknowledges that [HSBC] ha[s] examined
and relied on the experience of [Brandywine] and its
general partners, members, [and] principals . . . in
owning and operating properties such as the Property in
agreeing to enter into this Agreement and make the
Project Loan, and will continue to rely on [Brandywine's]
ownership of the Property as a means of maintaining the
value of the Property as security for repayment and
performance of the Obligations under the Project Loan
Documents. [Brandywine] acknowledges that [HSBC] ha[s]
a valid interest in maintaining the value of the Property
so as to ensure that, should [Brandywine] default in the
repayment and performance of the Obligations under the
Project Loan Documents, [HSBC] can recover the
Obligations by a sale of the Property.
-5-
[Brandywine] of the loan and interest thereon").5 The guaranty's
limitations-on-guaranteed-obligations clause caps O'Neill's
liability at $8.1 million, however.6
5
This part of the guaranty is laid out like so:
GUARANTY OF PAYMENT
. . .
. . . [HSBC] is not willing to make the Loan, or
otherwise extend credit, to [Brandywine] unless [O'Neill]
unconditionally guarantees payment and performance to
[HSBC] of the Guaranteed Obligations (as herein
defined)[.]
. . .
ARTICLE I
NATURE AND SCOPE OF GUARANTY
1.1 Guaranty of Obligation. Subject to the
limitations contained in Section 6.15, [O'Neill] hereby
irrevocably, absolutely and unconditionally guarantees to
[HSBC] . . . the payment and performance of the
Guaranteed Obligations as and when the same shall be due
and payable, whether by lapse of time, by acceleration of
maturity or otherwise. [O'Neill] hereby irrevocably and
unconditionally covenants and agrees that [he] is liable
for the Guaranteed Obligations as a primary obligor.
6
That section reads:
ARTICLE VI
MISCELLANEOUS
. . .
6.15 Limitations on Guaranteed Obligations.
Notwithstanding anything in this Guaranty or any of the
Loan Documents to the contrary, the liability of
[O'Neill] under this Guaranty shall be limited to (a) the
Guaranteed Amount (as hereinafter defined) and (b)
-6-
Pertinently too, the guaranty lists a bunch of
representations and warranties that O'Neill made to HSBC. For
example, he affirmed both that he was "familiar with, and ha[d]
independently reviewed books and records regarding," Brandywine's
"financial condition" and also that he was "familiar with the
value" of the property offered as collateral. He confirmed that
neither Brandywine's condition nor the pledge of collateral induced
him to sign the guaranty. And he declared that HSBC said nothing
to induce him to execute that document, either.7
amounts due under Section 1.8 of this Guaranty. As used
herein, the "Guaranteed Amount" shall mean an amount
equal to $8,100,000.
Section 1.8, which makes O'Neill liable for payment of expenses
that HSBC incurs in seeking to enforce the guaranty, provides in
full:
1.8 Payment of Expenses. In the event that
[O'Neill] should breach or fail to timely perform any
provisions of this Guaranty, [O'Neill] shall, within five
(5) business days after receipt of written demand from
[HSBC], pay [HSBC] all actual and reasonable costs and
expenses (including court costs and attorneys' fees)
incurred by [HSBC] in the enforcement hereof or the
preservation of [HSBC's] rights hereunder. The covenant
contained in this Section shall survive the payment and
performance of the Guaranteed Obligations.
7
Here is how these provisions show up in the guaranty:
ARTICLE III
REPRESENTATIONS AND WARRANTIES
. . .
3.2 Familiarity and Reliance. [O'Neill] is
familiar with, and has independently reviewed books and
-7-
The guaranty also has a "no duty to pursue others"
clause, which stresses that HSBC need not enforce its rights or
exhaust its remedies against Brandywine or the property and that
O'Neill gives up whatever rights he "may have" to force HSBC to do
either of these things.8 But there is more. O'Neill's guaranty
declares that he "waives any common law, equitable, statutory or
other rights" that he may have because of "[a]ny action . . .
records regarding, the financial condition of
[Brandywine] and is familiar with the value of any and
all collateral intended to be created as security for the
payment of the Note or Guaranteed Obligations; however,
[O'Neill] is not relying on such financial condition or
the collateral as an inducement to enter into this
Guaranty.
3.3 No Representation by Lender. Neither [HSBC]
nor any other party has made any representation, warranty
or statement to [O'Neill] in order to induce [O'Neill] to
execute this Guaranty.
8
Also appearing in Article I of the guaranty, which, again,
is titled "Nature and Scope of Guaranty," this passage reads in
relevant part:
1.6 No Duty to Pursue Others. It shall not be
necessary for [HSBC] (and [O'Neill] hereby waives any
rights which [he] may have to require [HSBC]), in order
to enforce the obligations of [O'Neill] hereunder, first
to (i) institute suit or exhaust its remedies against
[Brandywine] or others liable on the Loan or the
Guaranteed Obligations or any other person, (ii) enforce
[HSBC's] rights against any collateral which shall ever
have been given to secure the Loan, . . . (v) exhaust any
remedies available to [HSBC] against any collateral which
shall ever have been given to secure the Loan, or (vi)
resort to any other means of obtaining payment of the
Guaranteed Obligations. [HSBC] shall [not] be required
to mitigate damages or take any other action to reduce,
collect or enforce the Guaranteed Obligations.
-8-
taken" regarding the loan or the collateral that "increases the
likelihood that [he] will be required to pay the guaranteed
obligations."9 Topping things off, the guaranty has an integration
clause saying that this document is the "final and complete"
expression of its terms, that there are "no oral agreements"
9
Here are those provisions:
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING [O'NEILL'S] OBLIGATIONS
[O'Neill] hereby consents and agrees to each of the
following and agrees that [his] obligations under this
Guaranty shall not be released, diminished, impaired,
reduced or adversely affected by any of the following and
waives any common law, equitable, statutory or other
rights . . . which [he] might otherwise have as a result
of or in connection with any of the following:
. . .
2.13 Other Actions Taken or Omitted. Any other
action taken or omitted to be taken with respect to the
Loan Documents, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such
action or omission prejudices [O'Neill] or increases the
likelihood that [he] will be required to pay the
Guaranteed Obligations pursuant to the terms hereof, it
is the unambiguous and unequivocal intention of [O'Neill]
that [he] shall be obligated to pay the Guaranteed
Obligations when due, notwithstanding any occurrence,
circumstance, event, action, or omission whatsoever,
whether contemplated or uncontemplated, and whether or
not otherwise or particularly described herein, which
obligation shall be deemed satisfied only upon the full
and final payment and satisfaction of the Guaranteed
Obligations.
-9-
between the parties, and that no one can use extrinsic evidence of
any kind to "contradict" or "modify" any term.10
The Default and the Lawsuit
Brandywine defaulted on its repayment obligations, so
HSBC demanded that O'Neill make good on his $8.1 million guaranty.
But he turned a deaf ear, causing HSBC to file suit on the guaranty
agreement. O'Neill returned fire with 18 defenses and 8
counterclaims. Some of his defenses defy simple labels. Others do
not, like his defenses of mitigation, promissory estoppel, breach
10
That provision declares:
ARTICLE VI
MISCELLANEOUS
. . .
6.11 Entirety. THIS GUARANTY EMBODIES THE FINAL,
ENTIRE AGREEMENT OF [O'NEILL AND HSBC] WITH RESPECT TO
[O'NEILL'S] GUARANTY OF THE GUARANTEED OBLIGATIONS AND
SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS
GUARANTY IS INTENDED BY [O'NEILL AND HSBC] AS A FINAL AND
COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO
COURSE OF DEALING BETWEEN [O'NEILL AND HSBC], NO COURSE
OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE
SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY
ANY TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL
AGREEMENTS BETWEEN [O'NEILL AND HSBC].
The bolding and capitalization here are not mistakes on our part —
the provision actually looks this way, which we guess was done so
even a lackadaisical reader could not miss it.
-10-
of fiduciary duty, breach of an implied covenant of good-faith
dealing, fraudulent inducement, duress and undue influence,
unconscionable contract of adhesion, no meeting of the minds, and
failure to state a claim for which relief may be granted. As for
his counterclaims, they were for fraudulent inducement, promissory
estoppel, negligent misrepresentation, unfair and deceptive
business practices under Mass. Gen. Laws Ch. 93A, breach of an
implied covenant of good-faith dealing, breach of duty to mitigate
damages, declaratory and injunctive relief, and breach of contract.
Convinced that there were no material facts in dispute
and that judgment should enter enforcing the guaranty's express
terms, HSBC moved the judge to strike O'Neill's defenses and to
grant it judgment on the pleadings under Fed. R. Civ. P. 12(c).
O'Neill resisted by saying that his defenses and counterclaims
barred the guaranty's enforcement.11 In the alternative, he asked
the judge for leave to replead his defenses and counterclaims under
Fed. R. Civ. P. 15(a).12
Taking up HSBC's motion, the judge said that a common
theme pervaded O'Neill's defenses and counterclaims: "that HSBC
must seek to recover any amount owed by Brandywine by proceeding
against the [Delaware] property before turning to O'Neill's
11
The parties had attached the key documents to their
respective pleadings.
12
O'Neill did not submit proposed amended pleadings with this
request.
-11-
personal [g]uaranty," since "HSBC allegedly represented to him that
it would in the first instance seek recourse against the collateral
property in the event of a default." And when all was said and
done, the judge concluded that the guaranty's unambiguous language
wiped out that theory. So the judge rejected O'Neill's defenses
and counterclaims and granted HSBC judgment on the pleadings too.
Concluding that any attempt to amend would be an exercise in
futility, the judge also denied O'Neill's plea to replead.
Which gets us to the here and now.
OUR VIEW OF THE MATTER
O'Neill hurls a barrage of arguments our way, challenging
the grant of judgment on the pleadings and the denial of his
request to replead. We review a Rule 12(c) dismissal like we would
a Rule 12(b)(6) dismissal: de novo, taking as true the losing
party's well-pleaded facts and seeing if they add up to a plausible
claim for relief. See, e.g., Grajales 682 F.3d at 44. And as a
general rule, we review a decision regarding amendments of
pleadings for abuse of discretion, though when — as is the case
here — futility is the linchpin for the judge's ruling and the
leave-to-replead request came before the closing of discovery and
the filing of any summary-judgment motion, the correctness of the
"futility" tag is tested under the Rule 12(b)(6) standard. See,
e.g., Hatch v. Dep't for Children, Youth & Their Families, 274 F.3d
-12-
12, 19 (1st Cir. 2001). Ultimately, however, none of O'Neill's
arguments persuades.
Judgment on the Pleadings
(a)
Fraudulent Inducement
O'Neill loudly protests that his fraudulent-inducement
claim should have been enough to defeat HSBC's dismissal efforts.
His theory rises or falls on his belief that two provisions in the
project-loan agreement constitute false statements of material fact
made to induce him to sign the guaranty and that he reasonably
relied on those false statements to his detriment. See, e.g.,
Hogan v. Riemer, 619 N.E.2d 984, 988 (Mass. App. Ct. 1993) (laying
out the elements of a fraudulent-inducement claim). His theory
falls, as we now explain.
The first provision he points to involves the 60% loan-
to-value ratio, which he alleges put the collateral property's
value at $26.5 million and is an HSBC representation that the
chance of its having to call the $8.1 million guaranty was
basically zero. HSBC made that representation, he adds, even
though HSBC — and not he — knew that this was not the property's
real value. He does not say what the property's actual value was,
but he intimates that it had to have been less when he signed the
guaranty and that HSBC had to have known it was less. This theory,
however, flies in the face of the guaranty — the very document
where (the reader will recall) he expressly confirmed that he was
-13-
familiar with the property's value, that he was not relying on the
property as an inducement to sign the guaranty, and that HSBC made
no representations to induce him to execute that document.
The second project-loan-agreement provision he harps on
provides (emphasis ours) that if Brandywine defaults, HSBC "can
recover the obligations" by selling the property. He reads this
contract language as an HSBC representation that it would move
against the property before turning to his guaranty — a
representation (he continues) made even though HSBC intended all
along to collect only against the guaranty. We are unmoved.
Merely to state the obvious, that proviso says that HSBC "can"
proceed first against the property, not that it must do so.
Anyway, what drives a stake through the heart of this part of his
inducement theory is his agreeing in the guaranty that HSBC said
nothing to induce him to make the guaranty. And do not forget that
his guaranty specifically proclaims that it is the "entire
agreement" between the parties, superseding all prior
"understandings," and explicitly provides that HSBC may enforce its
rights against him (the primary obligor) without first trying to
recover the debt from any pledged collateral.
Ultimately — and unhappily for O'Neill — we must enforce
the guaranty according to its terms, with the parties' rights
"ascertained" from the written text. See First Nat'l Bank of
Boston v. Ibarra, 716 N.E.2d 647, 649 (Mass. App. Ct. 1999) (citing
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Merrimack Valley Nat'l Bank v. Baird, 363 N.E.2d 688 (Mass. 1977),
and Shawmut Bank, N.A. v. Wayman, 606 N.E.2d 925 (Mass. App. Ct.
1993)). But hang on a minute, says O'Neill, a Massachusetts rule
holds that one cannot induce a contract by fraud and then use
contractual contrivances to duck liability. See, e.g., Starr v.
Fordham, 648 N.E.2d 1261, 1268 (Mass. 1995) (citing Bates v.
Southgate, 31 N.E.2d 551 (Mass. 1941), and noting, for example,
that "[a]n integration clause in a contract does not insulate
automatically a party from liability where he induced another
person to enter into a contract by misrepresentation"). True
enough. But another rule — the one that holds sway here, for
reasons we will discuss in a minute — declares that reliance on
supposed misrepresentations that contradict the terms of the
parties' agreement is unreasonable as a matter of law and so cannot
support a fraudulent-inducement claim. Id. (quoting Turner v.
Johnson & Johnson, 809 F.2d 90, 97 (1st Cir. 1986)); accord
Masingill v. EMC Corp., 870 N.E.2d 81, 89 (Mass. 2007) (calling
this second rule "a rule of long standing"). And as we have just
shown, the contract-inducing misrepresentations that O'Neill
trumpets are irreconcilably at odds with the guaranty's express
terms. To repeat (and we apologize for the monotony of our
analysis): O'Neill specifically warranted in the guaranty that he
was familiar with the collateral property's value, that the
property did not operate as an inducement for him to make the
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uaranty, and that HSBC said nothing to induce him to execute the
guaranty — all of which destroys his fraudulent-inducement thesis
centered on the project-loan agreement's loan-to-value-ratio
provision.13 See Starr, 648 N.E.2d at 1268. He also agreed with
the guaranty's tagging him as the primary obligor and with its
allowing HSBC to go after him first to recoup the debt — provisions
that put the kibosh on his other suggestion that HSBC must first
seek recourse against the property. See id.
Our case bears a striking resemblance to Turner — an
opinion mentioned in a case parenthetical above. Applying
Massachusetts law, there we affirmed a lower court's decision
rejecting plaintiffs' fraudulent-inducement claims. See Turner,
809 F.2d at 95-98. Turner's key facts may be swiftly summarized.
The Turner plaintiffs sold an electronic-thermometer
business to defendant for cash considerations and royalties based
on future sales. Id. at 93. Plaintiffs later claimed that
defendant had induced them to sell by misstating various things
during negotiations, including that it would promote the
thermometer's sale. Id. at 94. Importantly, however, the
contract's final version stated that defendant had no obligation to
market the thermometer. Id. at 93. Canvassing the cases, we found
13
By the way, this proviso was a condition precedent to HSBC's
providing loan funds to Brandywine, conferring no legally
enforceable rights on either Brandywine or O'Neill — as we noted
several pages ago.
-16-
that "the give-and-take of negotiations would become meaningless
if, after making concessions in order to obtain contractual
protections, a knowledgeable party" can later "reclaim what it had
given away by alleging that it had, in fact, relied not on the
writing but on the prior oral statements." Id. at 96. So we said
that Massachusetts's Supreme Judicial Court ("SJC," for short)
"undoubtedly would find that the threat to contractual certainty
usually would outweigh the possible injustice of denying a claim of
fraud." Id. We added:
[T]he [SJC] would reject as a matter of law
plaintiffs' fraud claim based on [defendant's]
alleged promise to aggressively market [the
thermometer]. Certainly in this case, where
both parties were experienced in business and
the contract was fully negotiated and
voluntarily signed, plaintiffs may not raise
as fraudulent any prior oral assertion
inconsistent with a contract provision that
specifically addressed the particular point at
issue.
Id. at 97. And we concluded:
While we do not condone misrepresentations in
contract negotiations, we also reject the
notion that courts or juries should rewrite a
fully negotiated contractual agreement that so
precisely sets out the rights and obligations
of two sophisticated parties. We do not
believe this rule of law awards undue
protection against fraud claims. It means
only that a knowledgeable buyer should not
sign a contract that conflicts with his or her
understanding of the agreement.
-17-
Id. at 97-98. Turner stands on all fours with this case, given
that the misrepresentations here are at odds with the guaranty's
terms.
Desperate for a way around this reality, O'Neill spends
a lot of time trying to convince us that the SJC rejected Turner in
McEvoy Travel Bureau, Inc. v. Norton Co., 563 N.E.2d 188 (Mass.
1990). He also believes that the facts of his case fit snugly
within McEvoy, which, he adds, obliges us to follow McEvoy anyway.
He is wrong on both scores.
The McEvoy defendant, Norton Company, was a huge
international conglomerate. 563 N.E.2d at 191. The plaintiff,
McEvoy Travel Bureau, Inc., was a small travel agency in Worcester,
Massachusetts. Id. For decades McEvoy had provided travel
services to Norton, always without a written contract. Id.
Eventually the two reached an oral agreement calling for McEvoy to
become Norton's exclusive travel agent for all of Norton's
Worcester-area business. Id. This would be a "long-term"
arrangement, they agreed. Id. Based on this understanding, McEvoy
moved into Norton's building and hired extra personnel and bought
extra equipment necessary to handle the extra business. Id.
McEvoy had been fully performing under the agreement for
two months when Norton sent over a written version of the contract.
Id. McEvoy at first refused to sign it, complaining that the
document stated that Norton could terminate it on 60 days' notice
-18-
and that it was renewable yearly. Id. Norton replied that the
termination clause was "inoperative" and "meaningless," a mere
technicality added to make its lawyers happy — though at that very
time, Norton was secretly considering an "in-house" option that
could make McEvoy expendable. Id. at 191-92. An obviously in-the-
dark McEvoy signed the contract. Id. at 191.
Three years later, Norton invoked the termination clause
that it had previously pooh-poohed as pointless. Id. at 192.
Unwilling to let its duper off the hook, McEvoy sued Norton in
state court for (among other things) fraud in inducing the
contract. Id. at 190. A jury found for McEvoy. Id. And the SJC
affirmed, saying, most relevantly, first, that "statements of
present intention as to future conduct" — like a fraudulent promise
not to use the termination clause — "may be the basis for a fraud
action if . . . the statements misrepresent the actual intention of
the speaker and were relied upon by the recipient to his damage,"
id. at 192; and second, that McEvoy's reliance was reasonable,
because "the long existing relationship between the parties"
entitled it to take Norton's "statements at face value and credit
them," id. at 194.
Now back to O'Neill's McEvoy-based arguments. Sure, in
reaching its result, the SJC reaffirmed that contracting parties,
"whether experienced in business or not, should deal with each
other honestly," and that no one should "be permitted to engage in
-19-
fraud to induce the contract" — meaning the SJC saw "no reason to
create, as Turner suggests, a new rule or an exception" for cases
where the players are considered "sophisticated business
enterprises." Id. But McEvoy did not brush off Turner's core
holding. And cases after McEvoy have embraced it, agreeing with
Turner that "if 'the contract was fully negotiated and voluntarily
signed, [then] plaintiffs may not raise as fraudulent any prior
oral assertion inconsistent with a contract provision that
specifically addressed the particular point at issue.'" Starr, 648
N.E.2d at 1267 (quoting Turner, 809 F.2d at 97); see also
Masingill, 870 N.E.2d at 89 (same). And despite what he says, our
facts look nothing like McEvoy's. For one thing, he identifies no
specific statement signifying HSBC's then-present intention that it
in the future would treat a contract provision as so much hot air.
Cf. McEvoy, 563 N.E.2d at 191. For another, he alleges no history
of performance with HSBC that could make his reliance on the
complained-of duping conduct reasonable. Cf. id. Given all this,
McEvoy offers him no help.
O'Neill, however, has another Massachusetts fraudulent-
inducement decision up his sleeve that he says supports his
position, this one penned by a state-court trial justice — Linear
Retail Danvers #1, LLC v. Casatova, LLC, No. 07-3147, 2008 WL
2415402 (Mass. Super. Ct. June 11, 2008). Linear arose from an
alleged default on a commercial lease by defendants-lessees. Id.
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at *1. When defendants signed the lease, they also signed a
personal guaranty of the lease. Id. Claiming that defendants
breached the lease by not paying rent as required, plaintiff-lessor
sued them in Massachusetts state court, arguing that they, as
guarantors of the rent obligation under the lease, were absolutely
liable for the rent owed. Id. at *1-2. To fend off plaintiff's
summary-judgment motion, defendants argued that plaintiff had drawn
them into the lease by falsely representing that it would improve
the leased premises in certain ways. Id. at *3. The court denied
the motion, concluding that "[w]hether these representations were
made, and whether, if made, they misrepresented [plaintiff's]
actual intentions, are factual issues ripe for determination" by a
factfinder. Id. But there is a distinction between that case and
O'Neill's that makes all the difference: Linear never says whether
the pertinent contract there (the lease) had any provision directly
contradictory to the complained-of misrepresentations.
Contrastingly, the pertinent contract here (the guaranty) has
plenty of those. Clearly, then, Linear cannot turn the tide for
O'Neill.
The net result of all this is that O'Neill's inducement-
based arguments fail. So we press on.
(b)
Ambiguity
O'Neill also believes that judgment on the pleadings was
a no-no because, he says, the guaranty's limitations-on-guaranteed-
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obligations clause is ambiguous on its face. As a refresher, we
note again that this provision (so far as relevant) provides that
"[n]otwithstanding anything in this guaranty or any of the loan
documents to the contrary," O'Neill's liability under the guaranty
"shall be limited to . . . the guaranteed amount," defined as "an
amount equal to $8,100,000." O'Neill sees ambiguity because he
thinks that this proviso can either mean that he is responsible for
the "first" $8.1 million of the $15.9 million loan (which is HSBC's
preferred reading, he says) or the "last" $8.1 million (which is
his preferred reading, naturally).
Unfortunately for O'Neill, ambiguity does not arise
simply because contracting parties bicker over a provision's
meaning, see, e.g., Suffolk Const. Co. v. Lanco Scaffolding Co.,
716 N.E.2d 130, 133 (Mass. App. Ct. 1999) — if it did then reducing
a contract to writing would give parties "little or no protection,"
see Fed. Deposit Ins. Corp. v. W.R. Grace & Co., 877 F.2d 614, 621
(7th Cir. 1989) (Posner, J.), making contract drafting a real time-
waster. Instead, ambiguity arises only if a reasonable person
could read the provision more than one way. See, e.g., Brigade
Leveraged Capital Structures Fund Ltd. v. PIMCO Income Strategy
Fund, 995 N.E.2d 64, 69 (Mass. 2013). Of course, whether a
provision is ambiguous is a question of law that we must answer
ourselves, see, e.g., Eigerman v. Putnam Invs., Inc., 877 N.E.2d
1258, 1263 (Mass. 2007), mindful of this: that we must read the
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provision "in the context of the entire contract rather than in
isolation," because the interplay between different provisions may
cast some light on their meaning, see Gen. Convention of the New
Jerusalem in the U.S.A. v. Mackenzie, 874 N.E.2d 1084, 1087 (Mass.
2007), and that a dose of "'[c]ommon sense is as much a part of
contract interpretation as is the dictionary or the arsenal of
canons,'" see Roberts v. Enter. Rent-A-Car Co. of Boston, 779
N.E.2d 623, 629 (Mass. 2002) (quoting Fishman v. LaSalle Nat. Bank,
247 F.3d 300, 302 (1st Cir. 2001)).
These basic principles spell doom for O'Neill's ambiguity
claim. Nothing in the contested provision — or elsewhere in the
guaranty, for that matter — limits his guaranty obligation as
primary obligor on the note to the "last" $8.1 million of the $15.9
million loan. The clause's language is crystal clear, putting an
$8.1 million ceiling on his liability without providing even the
faintest whisper of a suggestion that he is responsible only for
the loan's final $8.1 million. What O'Neill has done is pull his
reading of the provision out of thin air, relying on mental
gymnastics inconsistent with the guaranty's actual words (and with
common sense). That his interpretation is not plausible wipes out
his ambiguity theory. See, e.g., Citation Ins. Co. v. Gomez, 688
N.E.2d 951, 952-53 (Mass. 1998); Mitcheson v. Izdepski, 585 N.E.2d
743, 745 (Mass. App. Ct. 1992).
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(c)
Chapter 93A
and
Good-Faith Dealing
We can make quick work of O'Neill's charge that his
pleadings alleged enough to push his chapter-93A and good-faith-
dealing claims across the plausibility line. For those not in the
know, we point out that chapter 93A prohibits "[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce," see Mass. Gen. Laws ch. 93A,
§ 2(a), and that courts read a duty of good-faith dealing into
every Massachusetts contract, see, e.g., Harrison v. NetCentric
Corp., 744 N.E.2d 622, 629 (Mass. 2001); Anthony's Pier Four, Inc.
v. HBC Assocs., 583 N.E.2d 806, 820 (Mass. 1991). Now, as argued
on appeal, O'Neill premises these claims on his already-rejected
fraud theory, which we state again runs like this: first, that the
60% loan-to-value ratio in the project-loan agreement is an HSBC
representation that it would not need to collect on his guaranty —
an entirely false representation, he alleges; and second, that the
project-loan agreement's saying that HSBC "can recover" against the
collateral property if Brandywine defaults is an HSBC
representation that it would proceed against the property rather
than against him as guarantor — another entirely false
representation, he posits. But because — as we have explained —
his fraud theory fails, so too does his chapter-93A claim. See,
e.g., Macoviak v. Chase Home Mortg. Corp., 667 N.E.2d 900, 903
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(Mass. App. Ct. 1996) (holding that a litigant cannot succeed on a
chapter-93A theory based on a fraud claim that is insufficient as
a matter of law). And because he is not a party to the project-
loan agreement between HSBC and Brandywine, his good-faith-dealing
claim necessarily fails as well. See, e.g., Ayash v. Dana-Farber
Cancer Inst., 822 N.E.2d 667, 684 (Mass. 2005) (stressing that
"[t]his implied covenant" of good-faith dealing "may not be
'invoked to create rights and duties not otherwise provided for in
the existing contractual relationship'" (quoting Uno Rests., Inc.
v. Boston Kenmore Realty Corp., 805 N.E.2d 957, 964 (Mass. 2004))).
Looking to deflect attention from this powerful body of
Massachusetts caselaw, O'Neill talks up sections 37 and 51 of the
Restatement (Third) of Suretyship and Guaranty, which we will
simply call the "Restatement" to save some keystrokes. As he tells
it, both sections bolster his chapter-93A and good-faith-dealing
claims. Not so, we conclude.
Reader alert: When perusing the next two paragraphs,
keep in mind that HSBC here is the "obligee," Brandywine is the
"principal obligor," and O'Neill is the "secondary obligor" — at
least that is how he sees things.
Broadly speaking, section 37 provides that if an "obligee
acts to increase the secondary obligor's risk of loss by increasing
its potential cost of performance or decreasing its potential
ability to cause the principal obligor to bear the cost of
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performance, the secondary obligor is discharged as described in
subsections (2) and (3)." See Restatement § 37(1). Subsection (2)
allows a discharge if the obligee "releas[es] the principal obligor
from a duty other than the payment of money" or "agree[s]" to
modify "the duties of the principal obligor that either amounts to
a substituted contract or imposes a risk on the secondary obligor
fundamentally different" than those imposed before the
modification. Id. § 37(2). Subsection (3) provides a list of acts
that allow a discharge, but the gist of this subsection is that a
discharge is in order if the "obligee" committed "any . . . act or
omission that impairs the principal obligor's duty of performance,
the principal obligor's duty to reimburse, or the secondary
obligor's right of restitution or subrogation." Id. § 37(3).
O'Neill is adamant that his case fits section 37 to a T. But he
makes no attempt to explain why this is so, alleging nothing
showing how HSBC's conduct comes within the ambit of subsections
(2) or (3). His argument therefore goes nowhere.14 See, e.g.,
Ruiz-Sánchez v. Goodyear Tire & Rubber Co., 717 F.3d 249, 253 (1st
Cir. 2013) (stressing that claims "woven entirely out flimsy
14
Sometimes we allow litigants "some latitude" if a plausible
claim may be shown "based on what is known," at least where "some
of the information needed may be" in the other party's "control."
Pruell v. Caritas Christi, 678 F.3d 10, 15 (1st Cir. 2012). But
O'Neill does not make this argument. So it is waived. See, e.g.,
Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.
2011); Ortiz v. Gaston Cnty. Dyeing Mac. Co., 277 F.3d 594, 598
(1st Cir. 2002).
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strands of speculation and surmise" do not satisfy the plausibility
standard); Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 225 (1st
Cir. 2012) (explaining that "speculation, unaccompanied by any
factual predicate, is not sufficient to confer plausibility").
As for section 51, it provides that an "obligee" may be
required to liquidate collateral to satisfy a debt when to do
otherwise would "result in unusual hardship to the secondary
obligor and enforcing the security interest [would] not materially
prejudice or burden the obligee or other beneficiaries of the
secondary obligation."15 See Restatement § 51(2)(b). And, building
to the ultimate crescendo, he theorizes that "hardship" and
"prejudice"/"burden" issues are questions of fact for a jury, not
for a judge on a Rule 12(c) motion. Now admittedly, he does say in
his pleadings (emphasis ours) that he "will face unusual hardship"
if required to pony up the $8.1 million and that HSBC will "not
face any hardship, nor be materially prejudiced or burdened" if
forced "to first look to" the property "for repayment" of any money
owing on the loan. But these are conclusory allegations, simply
parroting the legalese of the Restatement without providing any
factual support that might give them plausibility. Consequently,
we need not credit them.16 See, e.g., A.G. v. Elsevier, Inc., 732
15
Remember, according to O'Neill, HSBC is the "obligee" and
he is the "secondary obligor."
16
O'Neill does not even try to argue that, under the Pruell
line of cases, we should cut him some slack because some of the
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F.3d 77, 81 (1st Cir. 2013) (holding that "[w]hen allegations,
though disguised as factual, are so threadbare that they omit any
meaningful factual content, we will treat them as what they are:
naked conclusions" that cannot help a party pass the plausibility
test); Shay v. Walters, 702 F.3d 76, 82-83 (1st Cir. 2012)
(emphasizing that in deciding "whether allegations cross the
plausibility threshold, an inquiring court need not give weight to
bare conclusions, unembellished by pertinent facts").
(d)
Undue Influence
and
Unconscionable Contract of Adhesion
The judge rejected O'Neill's undue-influence and
unconscionable-contract-of-adhesion claims, concluding that both
theories were undone by "O'Neill's sophistication in real estate
matters and by the language of the [g]uaranty itself." O'Neill's
only complaint about this on appeal is with the "sophistication"
comment. To his way of thinking, this remark shows that the judge,
when addressing these two claims, considered matters "outside the
pleadings" and resolved "credibility" issues against him. See
generally Fed. R. Civ. P. 12(d) (declaring that "[i]f, on a motion
facts he needs regarding his "unusual hardship" and HSBC's
"prejudice"/"burden" are in someone else's control. For what it is
worth, we doubt that he could make that argument on the unusual-
hardship issue, particularly since he has within his possession the
facts about his personal-financial affairs needed to plead it
adequately. Regardless, having failed to make the argument, he has
waived it. See, e.g., Rodríguez, 659 F.3d at 175; Ortiz, 277 F.3d
at 598.
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under . . . Rule 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56," and adding that "[a]ll parties
must be given a reasonable opportunity to present all material that
is pertinent to the motion"). The problem for O'Neill is that his
pleadings and the undisputed documents he attached to them showed
his real-estate "sophistication." His counterclaims, for example,
played up the "legal[ly] and technical[ly] complex[]" environmental
problems that Brandywine navigated in its quest to convert the
property to residential use. And of course he acknowledged in his
guaranty that he held an ownership interest in Brandywine. He also
acknowledged there that he had "independently reviewed"
Brandywine's financial records and was familiar with the collateral
property's value. If more were needed, Brandywine acknowledged in
the project-loan agreement that HSBC had "examined and relied on
the experience of [Brandywine] and its general partners, members,
[and] principals . . . in owning and operating properties" like the
property at issue. Additionally, O'Neill never tried to support
his unconscionability and undue-influence theories by claiming that
he was a real-estate unsophisticate. The bottom line is that we
see nothing resembling reversible error here.
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(e)
Post-Briefing Letter
By way of a post-briefing letter, see Fed. R. App. 28(j),
O'Neill spotlights a lawyer's comment in an article that "[w]hen
dealing with a guarantee limited to an amount," a lender
"[g]enerally" intends "that the last 'x' dollars be guaranteed" and
that the guarantor "may . . . make the argument that his guarantee
doesn't kick in until the lender has liquidated its collateral from
its primary obligor." See William Barnett, Limited Guarantees:
Variations, Limitations, and Lamentations, 104 Banking L.J. 244,
251 (1987). But he cites us no case showing that Massachusetts
buys into any of this. Also, "generally" is not the same as
"always," see Newman v. Krintzman, 723 F.3d 308, 314 (1st Cir.
2013), and even the article that he clings to stresses that "[t]he
parties can, of course, create their own arrangements regarding the
order in which the lender will proceed against guarantors or
collateral," see Barnett, supra, at 258. Again, that is precisely
what the parties did here, with the guaranty's crystalline words
declaring that HSBC is in no way required to move first against the
collateral, Brandywine, or others to collect what it is owed. So
the article does nothing to help him.
O'Neill's post-briefing letter also intimates for the
first time on appeal that HSBC may have breached some "fiduciary
duties" to him. But the general rule — applicable here — is that
issues not developed in a party's opening brief are waived. See,
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e.g., N. Ins. Co. of N.Y. v. Point Judith Marina, LLC, 579 F.3d 61,
71 n.7 (1st Cir. 2009). We say no more about that subject.
(f)
Summing Up
O'Neill floats an array of reasons why the judge stumbled
in granting HSBC judgment on the pleadings. But not one can carry
the day for him, which is the short of this very long section of
our analysis. That leaves his last category of argument — that the
judge slipped in denying him leave to replead his defenses and
counterclaims — an argument to which we now turn.
Leave to Replead
A judge "should freely give leave [to replead] when
justice so requires," as O'Neill notes at some length. See Fed. R.
Civ. P. 15(a)(2). But a judge may deny leave if amending the
pleading would be futile — that is, if the pined-for amendment does
not plead enough to make out a plausible claim for relief. See
Hatch, 274 F.3d at 19; see also Foman v. Davis, 371 U.S. 178, 182
(1962) (noting that in addition to futility, undue delay, bad
faith, and the absence of due diligence on the movant's part may
justify denying leave to amend). O'Neill never tells us what
further facts he could plead to get around the problems highlighted
above. He simply believes that his pleadings as currently
fashioned do the trick — a belief that is blown away by the
unambiguous guaranty, for the reasons recorded in these pages. In
other words, he has not provided (below or here) any additional
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facts which, if repled, would permit him to cross the plausibility
threshold when matched up against the guaranty's express language.
Consequently, the judge's ruling on this issue stands. See, e.g.,
Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 327 (1st Cir.
2008) (finding futility where the party could not allege anything
that could repair the problem in its case).
FINAL WORDS
Concluding, as we do, that the district judge committed
no reversible error, we uphold the judgment that entered below.
Affirmed, with HSBC awarded its costs on appeal.
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