-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1337
PATRICK J. DOYLE AND H.P. LEASING, INC.,
Plaintiffs - Appellants,
v.
HASBRO, INC., ET AL.,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
_____________________
Jeffrey S. Entin and Sahady, Entin & Entin, P.C. on brief _________________ _____________________________
for appellants.
John A. Tarantino, Patricia K. Rocha and Adler Pollock & __________________ __________________ ________________
Sheehan Incorporated on brief for appellees Hasbro, Inc. and Alan ____________________
Hassenfeld. J. Richard Ratcliffe and Temkin & Associates Ltd. on ____________________ ________________________
brief for appellees Israel and Miriam Laudon. William A. ___________
Jacobson and Kaplan and Jacobson, Inc. on brief for appellee ________ ___________________________
David Thibodeau.
____________________
December 23, 1996
____________________
TORRUELLA, Chief Judge. Plaintiffs-appellants, H.P. TORRUELLA, Chief Judge. ____________
Leasing, Inc., and Patrick J. Doyle ("Doyle"), H.P. Leasing's
sole stockholder and President, brought this civil action against
Hasbro, Inc.; Alan Hassenfeld ("Hassenfeld"), Hasbro's President,
Chairman of the Board of Directors, and Chief Executive Officer;
Israel Laudon ("Laudon"), Vice President of Hasbro's Traffic
Department; Miriam Laudon, Laudon's wife; David Thibodeau,
Laudon's assistant; Hugh Maxwell, an Executive Vice President at
Hasbro; and Michael Oliva d/b/a Transport Services ("Oliva").
Plaintiffs claimed violation of the federal racketeering laws, 18
U.S.C. 1962(c) & (d) ("RICO"), as well as the following
violations of Massachusetts state law: breach of contract
against all defendants (Count I); civil conversion and civil
larceny against Laudon, Oliva and Thibodeau (Count II);
intentional and malicious interference with an advantageous
business relationship against Laudon, Oliva, and Thibodeau (Count
III); intentional infliction of emotional distress against
Laudon, Oliva, and Thibodeau (Count IV); fraud, deceit and
misrepresentation against Laudon, Thibodeau, Hassenfeld, and
Hasbro (Count V); and negligent entrustment or negligent
supervision against Hasbro (Count VI).
The district court dismissed the RICO claim and Counts
I through VI as to defendants Hassenfeld, Oliva, and Thibodeau.
Doyle v. Hasbro, 884 F. Supp. 35, 42 (D. Mass. 1995). In an _____ ______
order dated May 4, 1995, the claims against Israel and Miriam
Laudon were also dismissed. The RICO claim against Hasbro was
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dismissed from the bench on March 27, 1995, see id. at 38-39, and ___ ___
Counts I, V, and VI were also dismissed as to Hasbro.1 This
appeal followed.2
I. BACKGROUND I. BACKGROUND
Plaintiffs' amended complaint alleges the following
facts. In August and September 1980, plaintiffs met with Laudon,
who agreed, on Hasbro's behalf, to retain the plaintiffs'
services for hauling and delivering freight. In October 1980,
Laudon required that Doyle pay to Oliva a "commission" of ten
percent of the traffic charges billed by H.P. Leasing. Doyle
acceded to Laudon's request, viewing the payments as a business
expense that would ensure a consistent volume of business. Doyle
was instructed by Laudon that receipt of the commissions was
necessary for the continuance of the contracts. Early in the
relationship, Laudon informed plaintiffs that business would
increase and that additional tractor-trailers would be required.
In reliance on these representations, plaintiffs purchased 28
tractors. The increase in business that materialized, however,
did not merit such expansion.
____________________
1 Doyle v. Hasbro, 884 F. Supp. 35, 42-43 (D. Mass. 1995), _____ ______
dismissed Count V as to Hasbro only "to the extent liability is
premised on the conduct of Hassenfeld, Oliva, and Thibodeau," and
stated that the count may "proceed to the extent premised on the
conduct of the remaining defendants." Id. at 42-43. In its ___
order of May 4, 1995, however, the district court dismissed Count
V against Israel and Miriam Laudon, the remaining defendants,
implying that the claim against Hasbro must also be dismissed.
2 Plaintiffs-appellants have appealed only a subset of the
claims that were dismissed.
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As time went on, Oliva and Laudon reduced the volume of
business sent to H.P. Leasing. Between 1982 and 1985, H.P.
Leasing paid Laudon and Oliva commissions averaging $440,000 per
year, but from 1990 to 1992, these payments averaged only
$45,000.
Over the twelve years from 1980 to 1992, Laudon also
forced Doyle to pay for yearly Christmas parties for Hasbro
employees, to give gift certificates to Hasbro employees, to pay
for personal vacations for Laudon and his wife, and to pledge
$30,000 to the Holocaust Memorial. Doyle and his wife were
personally contacted, harassed and threatened during the period.
For example, Thibodeau, Laudon, and their wives would demand to
be taken out to dinner. These demands were accompanied by
comments such as "I own you" and "I can put you out of business
and you won't have a house to live in." Laudon, Thibodeau and
Hassenfeld worked closely together and were aware of each other's
conduct.
In 1992, Laudon informed plaintiffs that H.P. Leasing
ought to file for bankruptcy under Chapter 11 of the Bankruptcy
Code. He promised that Hasbro would support H.P. Leasing with a
minimum of $50,000 a week in revenue. Doyle felt he had no
choice, and, on March 12, 1992, H.P. Leasing filed for
bankruptcy. Defendants did not provide the support promised by
Laudon.
In June 1992, Doyle stopped making commission payments
to Laudon. Doyle perceived Hasbro's failure to award contracts
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to plaintiffs as a breach of the prior representations made to
him. In November 1992, Doyle met with Hassenfeld, who directed
that plaintiffs receive twenty to thirty thousand dollars per
week in business. In January 1993, plaintiffs received $28,000
in business from Hasbro. On January 27, 1993, H.P. Leasing was
closed for business.
II. STANDARD OF REVIEW II. STANDARD OF REVIEW
We review the motion to dismiss de novo. Aulson v. _______ ______
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). We accept as true "all _________
well-pleaded factual averments and indulg[e] all reasonable
inferences in the plaintiff's favor." Id. Dismissal under ___
Federal Rule of Civil Procedure 12(b)(6) is appropriate if the
facts alleged, taken as true, do not justify recovery. Id. The ___
pleading requirement, however, is "not entirely a toothless
tiger." The Dartmouth Review v. Dartmouth College, 889 F.2d 13, ____________________ _________________
16 (1st Cir. 1989). "The threshold [for stating a claim] may be
low, but it is real." Gooley v. Mobile Oil Corp., 851 F.2d 513, ______ ________________
514 (1st Cir. 1988). In order to survive a motion to dismiss,
plaintiffs must set forth "factual allegations, either direct or
inferential, regarding each material element necessary to sustain
recovery." Id. at 515. Although all inferences must be made in ___
the plaintiffs' favor, this court need not accept "bald
assertions, unsupportable conclusions, periphrastic
circumlocutions, and the like." Aulson, 83 F.3d at 3. ______
In conducting our review of the case, we are limited to
those allegations contained in the amended complaint. This is
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true both as to facts, see Litton Indus., Inc. v. Col n, 587 F.2d ___ ___________________ _____
70, 74 (1st Cir. 1978) ("[O]ur focus is limited to the
allegations of the complaint. The question is whether a liberal
reading of [the complaint] can reasonably admit of a claim."
(internal quotations omitted)), and as to arguments, see McCoy v. ___ _____
Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st Cir. __________________________________
1991) ("It is hornbook law that theories not raised squarely in
the district court cannot be surfaced for the first time on
appeal."). We, therefore, do not consider factual allegations,
arguments, and claims that were not included in the amended
complaint.
III. THE RICO CLAIMS (COUNT VII) III. THE RICO CLAIMS (COUNT VII)
We begin by considering plaintiffs-appellants' claims
under 18 U.S.C. 1962(c) and (d). Section 1962(c) reads:
It shall be unlawful for any person
employed by or associated with any
enterprise engaged in, or the activities
of which affect, interstate or foreign
commerce, to conduct or participate,
directly or indirectly, in the conduct of
such enterprise's affairs through a
pattern of racketeering activity or
collection of unlawful debt.
18 U.S.C. 1962(c). Section 1962(d) states that "[i]t shall be
unlawful for any person to violate any of the provisions of
subsections (a), (b), or (c) of this section." Id. 1962(d). ___
For the section 1962(c) claim to survive a motion to
dismiss, the amended complaint must allege: "(1) conduct (2) of
an enterprise (3) through a pattern (4) of racketeering
activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 _________________ _________
-6-
(1985); see also Arzuaga-Collazo v. Oriental Fed. Sav. Bank, 913 ________ _______________ _______________________
F.2d 5, 5-6 (1st Cir. 1990). "In addition, the plaintiff only
has standing if, and can only recover to the extent that, he has
been injured in his business or property by the conduct
constituting the violation." Sedima, 423 U.S. at 496. ______
This court has held that under section 1962(c), "the
unlawful enterprise itself cannot also be the person the
plaintiff charges with conducting it." Arzuaga-Collazo, 913 F.2d _______________
at 6; see also Odishelidze v. Aetna Life & Casualty Co., 853 F.2d ________ ___________ _________________________
21, 23 (1st Cir. 1988) (per curiam); Schofield v. First Commodity _________ _______________
Corp. of Boston, 793 F.2d 28, 29-30 (1st Cir. 1986) (collecting _______________
cases). In order to succeed, therefore, the complaint must
allege the existence of a "person" distinct from the
"enterprise."
We must, therefore, determine if the amended complaint
is sufficient to identify a "person" and an "enterprise." The
amended complaint is reasonably clear with respect to the
"person" requirement, stating that "all of said defendants are ___
'persons' within the meaning of this Act." Amended Complaint
62 (emphasis added). The only reasonable interpretation of this
statement includes all defendants: Hasbro, Hassenfeld, Israel
Laudon, Miriam Laudon, Hugh Maxwell, Thibodeau, and Oliva. Later
in the same paragraph, the complaint once again alleges that "all ___
defendants can be shown to be persons within the meaning of this
Act." Id. (emphasis added). In paragraph 64, where appellants ___
allege the section 1962(d) violation, the amended complaint
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states that "plaintiff is entitled to relief against all ___
defendants," (emphasis added) once again suggesting that each
defendant is, individually, identified as a "person" under the
Act.
The amended complaint fails to distinguish any subset
of the defendants in its section 1962(c) claim. Indeed,
plaintiffs-appellants do not mention any defendant by name in
paragraphs 61-63, in which the violation of section 1962(c) is
alleged. Thus, although appellants' brief would have us believe
that only Hasbro is a "person" for RICO purposes, the amended
complaint does not, even under a generous reading, support this
claim.
Although the amended complaint alleges the existence of
an enterprise, id. at 62, it never squarely identifies one. It ___
may be that a sympathetic reader could infer from the complaint
that Hasbro was the alleged RICO enterprise; this reading might
take support, for example, from the complaint's allegation that
"[d]efendant, Hasbro, Inc., is civilly liable under [ 1962(d)]
for an agreement of its officers to conduct the affairs of the
corporation in a manner which violates Section 1962(c) of the
RICO Act." Id. at 64. However, the possibility that the ___
plaintiffs considered Hasbro the "enterprise" is undermined by
the complaint's repeated contention that Hasbro is a RICO
"person." A RICO person cannot also serve as the RICO enterprise
that the person is allegedly conducting in violation of section
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1962(c). See Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44-45 (1st ___ _______ _______________
Cir. 1991); Arzuaga-Collazo, 913 F.2d at 6. _______________
More importantly, the plaintiffs do not argue on appeal
that Hasbro is the enterprise. Instead, they contend that their
own company, H.P. Leasing, is the enterprise. We decline to
rewrite the complaint language in order to find that plaintiffs
sufficiently identified Hasbro as a RICO enterprise when
plaintiffs do not even suggest as much on appeal. Rather,
holding plaintiffs to their present position, we look to the
complaint to see whether it can fairly be taken to bear the
meaning that plaintiffs now ascribe to it.
Unfortunately, no reasonable reading of the amended
complaint supports plaintiffs' current position that H.P. Leasing
is the enterprise. The complaint's only mention of H.P. Leasing
in connection with the RICO count appears to distinguish
plaintiff H.P. Leasing from the enterprise controlled by
defendants that allegedly caused H.P. Leasing injury. Amended
Complaint 63 ("The facts provided . . . above, allege a nexus
between the control of said enterprise, the racketeering
activity, and ultimately the injury to plaintiffs H.P. Leasing
and Pat Doyle."). We add that there is no indication that
plaintiffs' present position was ever advanced in the district
court. Cf. McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, ___ _____ _____________________________
22-23 (1st Cir. 1991), cert. denied, 504 U.S. 910 (1992). ____________
The complaint's failure to identify any enterprise,
distinct from a named person defendant, is fatal under RICO. But
-9-
we think it worth adding, although we do not formally decide the
point, that the claim appears remarkably weak in a quite
different respect. To prevail under section 1962(c), a complaint
must "establish a causal relationship between the racketeering
predicates and [the] asserted injury." Miranda, 948 F.2d at 46- _______
47. Here, if there had been no bribes, we have no reason to
think that plaintiffs would have gotten any Hasbro business at
all.
We conclude, therefore, that plaintiffs-appellants fail
to meet the bare requirements of a RICO claim under sections
1962(c) and (d). Because we find that the RICO count must be
dismissed for failure to state a claim, we need not address the
other issues raised in plaintiffs-appellants' brief regarding the
RICO claim.3 For the foregoing reasons, the dismissal of the
RICO claim is affirmed. ________
IV. THE STATE LAW CLAIMS IV. THE STATE LAW CLAIMS
A. Negligence (Count VI) A. Negligence (Count VI) _____________________
Count VI alleges "negligent entrustment or negligent
supervision" by Hasbro. We will deal with the two claims
separately.
The tort of negligent entrustment is normally used in
cases in which a defendant has entrusted a motor vehicle to an
incompetent driver, resulting in injury. See, e.g., Mitchell v. ___ ____ ________
____________________
3 For example, the question of whether Schofield v. First _________ _____
Commodity Corp. of Boston, 793 F.2d 28 (1st Cir. 1986) (limiting __________________________
the circumstances under which corporate liability can attach in a
RICO action), applies to the facts of this case need not be
decided.
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Hastings & Koch Enters., Inc., 647 N.E.2d 78, 82-84 (Mass. App. ______________________________
Ct. 1995); Kunkel v. Alger, 406 N.E.2d 402, 407 (Mass. App. Ct. ______ _____
1980). The tort has also been applied to suppliers. A "supplier
may be liable for harm caused after the supplier has knowingly
placed property in the hands of an incompetent person." Kyte v. ____
Philip Morris, Inc., 556 N.E.2d 1025, 1029 (Mass. 1990). ___________________
Plaintiffs-appellants would have us apply the doctrine
to the instant case. They have not offered, and our own research
has failed to uncover, any cases from Massachusetts or elsewhere
in this circuit, applying the doctrine to facts that resemble
those at bar.4
The question for this court, therefore, is whether we
should expand the present reach of the tort of negligent
entrustment, as used in Massachusetts, to include this case. To
do so would require a novel use of the doctrine which we decline
to adopt. The relationship between a firm and its employees is
very different from the relationships usually at issue in
negligent entrustment cases. The latter normally involve a
parent or other adult entrusting a minor or incompetent person
with a motor vehicle or some other instrumentality. "An action
for negligent entrustment involves a person's duty to keep a
dangerous instrumentality out of a child's reach." Id. at 1036. ___
While it may be possible to point to similarities between the
____________________
4 Plaintiffs-appellants muster only a single district court case
in support of their claim, Bernstein v. IDT Corp., 582 F. Supp. _________ _________
1079 (D. Del. 1984). Although that case has certain similarities
to the case at bar, we are not bound by its holding.
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current application of the doctrine and the one advocated by
plaintiffs-appellants, we believe that the differences are much
more striking.
Furthermore, plaintiffs-appellants offer no convincing
argument showing why the application of the doctrine in this
context would be desirable. Indeed, their brief offers no
reasons whatsoever why this court should extend the doctrine.
Because the question before us is one of state law, we must
exercise considerable caution when considering the adoption of a
new application. "[A]s a federal court hearing this state law
issue under our supplemental jurisdiction, we are reluctant to
extend [state] law beyond its well-marked boundaries." Andrade _______
v. Jamestown Housing Auth., 82 F.3d 1179, 1186-87 (1st Cir. 1996) _______________________
(citations omitted). Without a powerful argument for the
extension of the doctrine, we are, therefore, unwilling to apply
the doctrine of negligent entrustment in a novel fashion.
For the above reasons, we affirm the dismissal of ______
plaintiffs-appellants' negligent entrustment claim.
We now turn to the negligent supervision claim. The
district court found that plaintiffs-appellants failed to provide
any case law suggesting that the doctrine of negligent
supervision reaches the instant case. Doyle, 884 F. Supp. at 42. _____
We need not decide that issue here, however, because the claim
fails on other grounds. The plaintiffs-appellants' theory on
appeal is that "had plaintiffs been dealing with competent,
responsible and honest Hasbro employees, H.P. Leasing would have
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simply shipped goods, made a profit, and there would be no issues
to litigate." Appellants' Brief at 36. This theory, however, is
contradicted by the amended complaint, which alleges that the
commissions, or kickbacks, were paid within a month or two of the
start of the relationship between the parties and that plaintiff
believed the payments "would insure a consistent volume of
business." Plaintiffs would be entitled to damages only if they
alleged that they would have received Hasbro's business in the
absence of kickbacks. If H.P. Leasing was awarded the business
only because it agreed to the kickback scheme, and, therefore,
earned profits that it would not have earned without the scheme,
it cannot claim damages when the scheme comes to an end.
Plaintiffs, however, make no claims to the effect that proper
supervision by Hasbro would have left plaintiffs-appellants in a
better position. There is no evidence that H.P. Leasing would
have received any business from Hasbro in the absence of the
kickback scheme. It is not sufficient for the purposes of
stating a claim for damages that the benefits derived from the
illegal kickbacks have disappeared. Because no damages are
alleged, plaintiffs-appellants have failed to state a claim for
negligent supervision.
For the foregoing reasons, we affirm the dismissal of ______
Count VI.
B. Fraud, Deceit, and Misrepresentation (Count V) B. Fraud, Deceit, and Misrepresentation (Count V) ______________________________________________
Count V of the complaint alleges that the conduct of
defendants Laudon, Thibodeau, Hassenfeld and Hasbro constituted
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"fraud, deceit and misrepresentations." Amended Complaint at
54. In order to state a claim for fraudulent misrepresentation,
the plaintiff must allege:
(1) that the statement was knowingly false; (2)
that [defendants] made the false statement with the
intent to deceive; (3) that the statement was
material to the plaintiffs' decision . . .; (4)
that the plaintiffs reasonably relied on the
statement; and (5) that the plaintiffs were injured
as a result of their reliance.
Turner v. Johnson & Johnson, 809 F.2d 90, 95 (1st Cir. 1986); see ______ _________________ ___
also Danca v. Taunton Sav. Bank, 429 N.E.2d 1129, 1133 (Mass. ____ _____ __________________
1982).
With respect to Hassenfeld, plaintiffs allege that in
November 1992, he "directed that plaintiffs receive $20,000.00 to
$30,000.00 per week in business from the defendant, Hasbro, Inc."
Amended Complaint 37. Hassenfeld also promised that Doyle's
son, the owner of a contract carrier in the State of Washington,
"would be taken care of and would continue to do business with
Hasbro." Amended Complaint 41. In both cases, the complaint
suggests that Hassenfeld's comments were "an effort to right the
wrong done to plaintiffs," amended complaint 37, or to "make
amends," amended complaint 41.
Several of the required elements of common law fraud
are absent from these allegations. First, there is no allegation
that Hassenfeld's statements were knowingly false. In fact, the
complaint states that the promises were an "effort to right a
wrong done to plaintiffs," suggesting that Hassenfeld intended to
keep these promises. Second, there is no allegation that the
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statements were made with an intent to deceive. Finally, neither
reliance nor injury is alleged.
The district court also dismissed the claims of fraud
against Laudon and Thibodeau. Because plaintiffs-appellants have
failed to argue for the reversal of these dismissals on their
appeal, we do not review them here.
There remains the questions of whether plaintiffs have
claimed that defendants Hassenfeld, Thibodeau, and Oliva were
part of a larger conspiracy to defraud and whether a claim of
fraud is made against Hasbro. The district court ruled that "the
conclusory allegations throughout the amended complaint are
insufficient under Fed. R. Civ. P. 9(b)'s strict requirement
that fraud be pled with particularity." Doyle, 884 F. Supp. at _____
41. Appellants respond that notice is the principal purpose of
any pleading, including fraud, and Rule 9(b) "does not require
the claimant to set out in detail all of the facts upon which he
bases his claim, nor does it require him to plead detailed
evidentiary matters." Collins v. Rukin, 342 F. Supp. 1282, 1292 _______ _____
(D. Mass. 1972).
There is a well-developed body of case law surrounding
the application of Rule 9(b) in this circuit.5 See, e.g., ___ ____
____________________
5 Rule 9 reads, in relevant part:
(b) In all averments of fraud or mistake,
the circumstances constituting fraud or
mistake shall be stated with
particularity. Malice, intent,
knowledge, and other condition of mind of
a person may be averred generally.
-15-
Serabian v. Amoskeag Bank Shares, Inc., 24 F.3d 357, 361 (1st ________ ____________________________
Cir. 1994); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 878 ______ ______________________
(1st Cir. 1991); New England Data Servs. Inc. v. Becher, 829 F.2d ____________________________ ______
286, 288-90 (1st Cir. 1987); Wayne Inv. Inc. v. Gulf Oil Co., 739 _______________ ____________
F.2d 11 (1st Cir. 1984). In New England Data Services, we held _________________________
that the case law interpreting and applying Rule 9 in cases
dealing with general fraud and securities fraud applies to RICO
cases. The "degree of specificity [in RICO cases] is no more nor
less than we have required in general fraud and securities
cases." 829 F.2d at 290.
Rule 9 imposes a heightened pleading requirement for
allegations of fraud in order to give notice to defendants of the
plaintiffs' claim, to protect defendants whose reputation may be
harmed by meritless claims of fraud, to discourage "strike
suits," and to prevent the filing of suits that simply hope to
uncover relevant information during discovery. See McGuinty v. ___ ________
Beranger Volkswagen, Inc., 633 F.2d 226, 228-29 & n.2 (1st Cir. _________________________
1980).
In McGuinty, this court stated that "[t]he clear weight ________
of authority is that Rule 9 requires specification of the time,
place, and content of an alleged false representation, but not
the circumstances or evidence from which fraudulent intent could
be inferred." Id. at 228. "[M]ere allegations of fraud, ___
corruption or conspiracy, averments to conditions of mind, or
referrals to plans and schemes are too conclusional to satisfy
____________________
Fed. R. Civ. P. 9(b).
-16-
the particularity requirement, no matter how many times such
accusations are repeated." Hayduk v. Lanna, 775 F.2d 441, 444 ______ _____
(1st Cir. 1985) (citations omitted).
We agree with the district court that the allegations
of conspiracy included in the amended complaint are insufficient
to satisfy the requirements of Rule 9(b). The complaint simply
states that the defendants:
worked closely together and were aware of
the others' conduct. These defendants
conspired to use H.P. Leasing for the
benefit of Hasbro and their own personal
financial gain. It is not certain what
the specifics of the conspiracy entailed
or how exactly defendants Thibideau [sic]
and Hassenfeld benefited from that
conspiracy.
Amended Complaint 24. Elsewhere in the Amended Complaint,
these conclusory allegations are repeated: "defendants worked
together to shut down H.P. Leasing," Amended Complaint 28;
"all defendants were suddenly acting to terminate H.P. Leasing,"
Amended Complaint 38. The amended complaint includes no
specification of the time, place, and content of an alleged false
representation as required by McGuinty. In addition, no claim ________
can survive as against Hasbro in light of the fact that no claim
has been made against any of the other defendants through whom
Hasbro could act.
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Because the plaintiffs-appellants have failed to meet
the requirements of Rule 9, we affirm the district court's ______
dismissal of Count V as against Hassenfeld and Hasbro.6
C. Breach of Contract (Count I) C. Breach of Contract (Count I) ____________________________
In order to sustain Count I's breach of contract claim,
plaintiffs must plead: (1) that the parties had an agreement
supported by valid consideration; (2) that plaintiffs were ready,
willing and able to perform; (3) that defendant's breach has
prevented them from performing; and (4) that plaintiffs were
damaged. See Singarella v. City of Boston, 173 N.E.2d 290, 291 ___ __________ _______________
(Mass. 1961); Petricca v. Simpson, 862 F. Supp. 13, 17 (D. Mass. ________ _______
1994). Plaintiffs-appellants are mistaken in their belief that
they "need no more than to allege that the facts [demonstrate a]
breach of that contractual relationship." Appellants' Brief at
40. "[I]t is essential to state with 'substantial certainty' the
facts showing the existence of the contract and the legal effect
thereof." Pollock v. New England Tel. & Tel. Co., 194 N.E. 133, _______ ___________________________
136 (Mass. 1935). Appellants fail to do so.
The amended complaint fails to state the nature of the
alleged contract with any specificity. There is no presentation
of the terms of a contract, its duration, or even when it was
formed. Nor does the Amended Complaint explain what obligations
were imposed on each of the parties by the alleged contract. It
____________________
6 The district court states that "Count V must be dismissed
against Thibodeau and Oliva as well [as Hassenfeld]." Doyle, 884 _____
F. Supp. at 41. The Amended Complaint does not, however, allege
that Oliva has committed fraud, and, therefore, he is not
implicated in our discussion.
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does not plead that plaintiffs were ready to perform under the
contract or that the defendants' breach prevented them from
performing, and it does not identify the damages attributable to
the breach. Conclusory statements that "Hasbro and its
executives failed to meet their contractual requirement," amended
complaint 34, are insufficient to satisfy the pleading
requirements.
Because appellants have failed to state a claim for
breach, we need not address the argument made in their brief that
the alleged contract was, in fact, an at-will employment contract
and that it was breached in bad faith. Nor do we address the
question of whether the individual defendants are shielded from
liability on the ground that an agent for a disclosed principal
cannot be personally liable for the principal's conduct. See ___
Doyle, 884 F. Supp. at 39. _____
For the foregoing reasons, we affirm the dismissal of ______
the breach of contract claim.
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D. Intentional Infliction of Emotional Distress D. Intentional Infliction of Emotional Distress __________________________________________________
(Count IV) (Count IV) __________
Count IV of the amended complaint alleges a claim of
intentional infliction of emotional distress against Laudon,
Oliva, and Thibodeau.7 The relevant requirements for this claim
in Massachusetts were set forth in Agis v. Howard Johnson Co., ____ __________________
355 N.E.2d 315 (Mass. 1976). A claim for intentional infliction
of emotional distress requires "(1) that the actor intended to
inflict emotional distress or that he knew or should have known
that emotional distress was the likely result of [the] conduct;
(2) that the conduct was 'extreme and outrageous,' was 'beyond
all possible bounds of decency' and was 'utterly intolerable in a
civilized community;' (3) that the actions of the defendant were
the cause of the plaintiff's distress; and (4) that the emotional
distress sustained by the plaintiff was 'severe' and of a nature
'that no reasonable [person] could be expected to endure it.'"
Id. at 318-19 (citations omitted). The standard for making a ___
claim of intentional infliction of emotional distress is very
high in order to "avoid[] litigation in situations where only bad
manners and mere hurt feelings are involved." Id. at 319. ___
Recovery on such a claim requires more than "that the defendant
has acted with an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress, or even that
his conduct has been characterized by 'malice' or a degree of
aggravation which would entitle the plaintiff to punitive damages
____________________
7 Plaintiffs-appellants have not appealed the dismissal of this
claim against Oliva.
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for another tort." Foley v. Polaroid Corp., 508 N.E.2d 72, 82 _____ _______________
(Mass. 1986).
We agree with the district court that "[a]ssuming the
truth of all the allegations in the amended complaint, the
conduct complained of does not as a matter of law amount to
extreme and outrageous behavior beyond all possible bounds of
decency and which are utterly intolerable in a civilized
community." Doyle, 884 F. Supp. at 40 (citations omitted). "Nor _____
has Doyle even attempted to plead severe distress of a nature
that no reasonable [person] could be expected to endure it." Id. ___
Accordingly, we affirm the dismissal of the claim of ______
intentional infliction of emotional distress.
E. Interference with Advantageous Business E. Interference with Advantageous Business __________________________________________________
Relationships (Count III) Relationships (Count III) _________________________
Count III of the amended complaint alleges "intentional
and malicious interference with the plaintiffs' advantageous
business relationships" against Laudon, Oliva, and Thibodeau.8
Amended Complaint 50. The elements of the tort of interference
with an advantageous relationship include: "(1) a business
relationship or contemplated contract of economic benefit; (2)
the defendant's knowledge of such relationship; (3) the
defendant's interference with it through improper motive or
means; and (4) the plaintiff's loss of advantage directly
resulting from the defendant's conduct." American Private Line _____________________
Servs., Inc. v. Eastern Microwave, Inc., 980 F.2d 33, 36 (1st ____________ ________________________
____________________
8 Plaintiffs-appellants have not appealed the dismissal of this
claim as against Oliva.
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Cir. 1992) (citing United Truck Leasing Corp. v. Geltman, 511 ___________________________ _______
N.E.2d 20 (Mass. 1990)).
Implicit in the above requirements for intentional
interference in a business relationship is that the relationship
be lawful. See Chemewa Country Golf, Inc. v. Wnuk, 402 N.E.2d ___ ___________________________ ____
1069, 1072 (Mass. App. Ct. 1980) (requiring that the complained-
of acts be "calculated to cause damage to the plaintiffs in their
lawful business" (emphasis added)). Plaintiffs-appellants argue ______
that defendants-appellees interfered with a business relationship
that consisted of allegedly unlawful kickbacks in exchange for
business. As such, the business relationship in question was not
lawful, and plaintiffs cannot recover on their claim.
Accordingly, we affirm the district court's dismissal ______
of Count III against Laudon and Thibodeau.
V. CONCLUSION V. CONCLUSION
For the reasons discussed herein, we affirm the ______
district court's dismissal on all claims appealed by plaintiffs-
appellants: the RICO count against all defendants, Count I
against all defendants, Counts III and IV against Laudon and
Thibodeau, Count V against Hasbro and Hassenfeld (and noting that
plaintiffs-appellants failed to raise the liability of Laudon and
Thibodeau), and Count VI against Hasbro.
Finally, we note that plaintiffs-appellants have filed
an overly long brief. Although the brief is less than the
permissible fifty pages, it is not double spaced as required,
Fed. R. App. Proc. 32(a), making the effective length of the
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brief considerably longer. Additionally, we are able to find no
reason for the length of the brief. Despite the extra length,
the brief failed to adequately present the claims of appellants
or even to clearly identify the claims being appealed. See In re ___ _____
M.S.V., Inc., 892 F.2d 5, 6 (1st Cir. 1989) ("[W]hether or not we ____________
grant permission to file an overly long brief, we may assess
special costs if we subsequently conclude that the extra length
was unnecessary and did not help."). "We believe it appropriate
to discourage the filing of excessively long briefs in this
court," id., and we believe it appropriate to discourage parties ___
from attempting to flaunt the page limits by submitting briefs
with improper line spacing. Accordingly, we assess double costs
against appellants.
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Document Info
Docket Number： 96-1337
Filed Date： 12/24/1996
Precedential Status： Precedential
Modified Date： 9/21/2015