Bostec Systems, Inc. v. Mastercard Int'l ( 1996 )

USCA1 Opinion

          June 25, 1996         [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT




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        No. 96-1055



                                BOSTEC SYSTEMS, INC.,



                                Plaintiff, Appellant,



                                          v.



                           MASTERCARD INTERNATIONAL, INC.,



                                 Defendant, Appellee.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. W. Arthur Garrity, Senior U.S. District Judge]
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                      [Hon. Patti B. Saris, U.S. District Judge]
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                                        Before



                                Selya, Cyr and Boudin,



                                   Circuit Judges.
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             Andrew Schultz, with whom Michael S. Field, Dimitrios Ioannidis,
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        Beth Pirro Cook and Field & Schultz were on brief for appellant.
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             Andrew W. Goldwater, with whom Friedman & Kaplan LLP was on brief
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        for appellee.






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                    Per Curiam.  Appellant  Bostec Systems, Inc. challenges
Per Curiam.
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          a  summary  judgment  dismissing   its  breach  of  contract  and



          promissory estoppel claims against Mastercard International, Inc.



          Bostec argues that  a trialworthy factual  dispute remains as  to



          whether Mastercard promised to require its members  to purchase a



          machine     capable  of affixing tamper-evident,  paper signature
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          panels to  credit cards    were Bostec to design and develop such



          a  machine.   Following  plenary  review,  Laura  Thorn, Ltd.  v.
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          Alletzhauser, 71 F.3d 991, 993 n.4 (1st Cir. 1995), after careful
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          consideration  of  Massachusetts law  and  the  entire record  as



          illuminated by  the briefs  and oral  argument, we  are persuaded



          that  the district court correctly concluded, as a matter of law,



          that  though  Mastercard     encouraged  Bostec's   developmental



          efforts,  it  made  no  express or  implicit  promise  that could



          support either a contract claim or a promissory estoppel claim.1



                    Viewed  in  the light  most  favorable  to Bostec,  the



          evidence  reveals  that  Mastercard  broached its  idea  for  the



          development of a signature panel machine to Bostec in March 1987,



          and monitored Bostec's progress before finally approving a Bostec



          paper  signature  panel  prototype  in  December  1991.    Bostec




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               1See Rhode Island  Hosp. Trust Nat'l  Bank v. Varadian,  647
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          N.E.2d 1174,  1179 (Mass. 1995)  ("[A]n action based  on reliance

          [e.g., promissory  estoppel] is equivalent to  a contract action,

          and  the party  bringing  such  an  action  must  prove  all  the

          necessary  elements  of a  contract other  than consideration.");

          Simons v. American Dry Ginger Ale Co., 140 N.E.2d 649, 652 (Mass.
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          1957)  ("All  the   essential  terms  of   a  contract  must   be

          sufficiently definite  so  that  the  nature and  extent  of  the

          obligations  of  the  parties  can  be  ascertained."   (citation

          omitted)).



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          concedes, however, that no enforceable promise was made prior  to



          Mastercard's March 1990 letter, which confirmed its commitment to



          require Mastercard members to use a "new secure signature panel."



          Instead, Bostec contends that it is the entire course of dealings



          between the parties that evinces a promise  to require Mastercard



          members to use only  the paper signature panel machine  developed
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          by Bostec at Mastercard's suggestion.



                    Neither the course of  dealings between the parties nor



          the  March  1990  letter   generated  a  trialworthy  claim  that



          Mastercard made a "sufficiently  definite" promise to require its



          members  to  use,  or   acquire,  only  a  tamper-evident,  paper
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          signature panel on its credit cards.  See Simons v. American  Dry
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          Ginger  Ale Co., 140 N.E.2d 649, 652  (Mass. 1957); supra note 1.
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          In   November   1988,   Mastercard  sent   Bostec   (and  others)



          specifications, explicitly permitting signature panels to be made



          from   paper,  mylar,   film,  or   other  comparable   material.



          Mastercard informed Bostec in May 1989 that it would  not grant a



          monopoly  to any one equipment supplier.  Finally, the March 1990



          letter     confirming  Mastercard's commitment  to a  "new secure



          signature panel"     cannot  support a reasonable  inference that



          Mastercard promised to require its secure signature panels  to be



          made from paper  to the exclusion of  all other materials, or  to



          require its  members to  purchase Bostec's paper  signature panel
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          machine.  Absent evidence of a sufficiently definite promise, the



          Bostec claims fail as a matter of law.  See supra note 1.
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                    Affirmed.
Affirmed.
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