USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 96-2331

LOUIS GIULIANO & PATRICIA LETT, ETC., ET AL.,

Plaintiffs - Appellants,

v.

NATIONS TITLE, 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

Boudin, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Dowd, Jr.,* Senior District Judge.

_____________________

_____________________

Stephen C. Maloney for appellants.

__________________

John H. Henn, with whom Stephen B. Deutsch and Foley, Hoag &
____________
__________________
_____________
Eliot were on brief for appellees.
_____

____________________

JANUARY 23, 1998

____________________

____________________

Of the Northern District of Ohio, sitting by designation.

DOWD,
DOWD,

Senior District Judge.

Senior District Judge.
______________________

This

dispute concerns

questions

of

title

to

number of

subdivision located

on Martha's

developers

subdivision,

of

the

insurance company which,

Vineyard.

and

these lots,

into

Toward

real

estate

Plaintiffs are

Defendant

is

the

Defendant decided to

the

title

issued title

As the result of many

title to all the lots, and then work

as an entity.

in

under a predecessor name,

insurance policies on these lots.

claims against

lots

adverse

try to

obtain

to preserve the subdivision

this end, Defendant and Plaintiffs entered

several written agreements concerning the transfer of title

from Plaintiffs to Defendant.

It is the enforceability of these

various agreements that is at the heart of this action.

Plaintiffs filed this action alleging that Defendant had breached

1990 agreement

to

develop the

property,

and had

otherwise

committed

fraud, negligence,

violation

of

practices.

Mass.

Gen.

Defendant

Laws

responded

declaratory

judgment that a

was

enforceable

valid,

parties.

The

"agreement to

ch.

fiduciary

93A

with

for

court

counterclaim

all

disputes

granted

summary

the 1990 agreement was

agree," and

that the 1991

duty, and

unfair

1991 agreement between

and settled

district

Defendant, holding that

breach of

business

for

the parties

between the

judgment

to

an unenforceable

agreement was

a valid

agreement and settled the parties' disputes.

summary

district

Plaintiffs

now appeal

the district

judgment to

Defendant.

Plaintiffs

court's

subsequent

denial

-2-

of

court's grant

also

appeal

their proposed

of

the

second

amended complaint

reasons set

that based

on the

ground that

out below, we

on the

it was futile.

affirm the

For

district court's

undisputed facts,

the

holding

Defendant was entitled

to

judgment as a matter of law.

BACKGROUND
BACKGROUND

Patricia Lett ("Lett") and

(collectively "Plaintiffs") are

Acres

II,"

148-unit

Louis Giuliano ("Giuliano")

the developers of

subdivision

located

the "Vineyard

in

Edgartown,

Massachusetts.

Lett

initially took

title to

the lots

in her

individual capacity, but in 1983 all of Lett's title was conveyed

to Lett

in her capacity

Realty Trust."1

as "trustee" of the

"Vineyard Acres II

Plaintiffs sold approximately 77 lots, and Lett

as trustee retained ownership of approximately 69

then mortgaged

to Old

Colony Cooperative

Nations Title Insurance-NY ("NTNY"),

of "TRW," issued title

lots which she

Bank ("Old

Colony").

under the predecessor

name

insurance policies totaling approximately

$11 million to the buyers of these lots.

Subsequently,

adverse title claims

to

NTNY's predecessor

learned of

affecting the subdivision, and

numerous

was obliged

defend against these actions as a result of issuing the title

policies noted

above.

In 1987,

as a

result of

these adverse

claims,

District

NTNY's predecessor

Court for

brought suit

the District

of

in

the United

Massachusetts ("The

States

Fraud

Action") against Plaintiffs, alleging that Lett and Giuliano knew

____________________

This Court

was unable to

determine from the

record whether

Lett was a beneficiary of the trust.

-3-

they

did not

have

good

title to

the

land, and

fraudulently

induced

NTNY's

predecessor

purchasers of the

them mortgages.

to

issue

title

policies

to

the

land and the financial institutions which gave

Title U.S.A. Ins. Corp. of New York

_____________________________________

v. Lett,
____

C.A. No. 87-701-WD (D. Mass.).

NTNY's

predecessor then decided to try to obtain title

to all the lots, and then work to preserve the subdivision

entity.

TRW,

Toward this

end, NTNY, under

its predecessor

as an

name of

and Lett entered into an agreement on August 8, 1990 ("1990

Agreement").

This

1990 Agreement sketched out

an understanding

that had been reached by the parties with regard to TRW's plan to

acquire

the lots

foreclosure sale.

"for good

that Old

Colony was

preparing

to sell

at a

The preamble of the 1990 Agreement states that

and valuable

consideration as

described below,

[the

parties] enter into

this agreement

project involving the continuation

and sale

of the Vineyard

to work

cooperatively in

of the development, marketing

Acres II subdivision."

The agreement

goes on to state that:

All Parties

agree

to use

their best

and

reasonable efforts to acquire for the benefit

of all Parties that portion of Vineyard Acres
II encumbered by

a mortgage held by

New

Colony on

England-Old

intends
acquires

to foreclose.
said

foreclosure sale, it
for the benefit
to

work

which

Bank of
said bank

TRW agrees that if it

portion

pursuant

to

will hold said

of all Parties in

cooperatively

to

the

portion
an effort

accomplish

the

Parties' objective of

developing, marketing,

and

Vineyard

selling

the

Acres

II

subdivision.
. . . .
All

Parties

objective is to

agree

that

their

mutual

prepare and develop Vineyard

-4-

Acres II lots for sale,

without

and to sell the same

undue delay.

use their best and

The Parties

agree to

reasonable efforts and to

act in good faith to achieve their objective.

The Parties
the

sale

follows:
all

agree to divide the

of

Vineyard

Acres

proceeds of
II

lots

as

a fixed amount to be agreed upon by

Parties will be paid to TRW for expenses

incurred

and proceeds

exceeding that

fixed

amount paid to TRW will be paid to Lett.

The

predecessor

parties

signed

was the successful

the

agreement,

bidder at the

and

NTNY's

foreclosure sale.

Lett claims on appeal that

hold the property

because NTNY's predecessor agreed

from the foreclosure sale "for

to

the benefit of

all Parties," she has an interest in that property.

The parties continued negotiations to try to agree upon

the precise

settlement

trial.

terms of

of the

On March

an overall

agreement which

Fraud Action, which

was still

21, 1991, the parties signed

("1991 Agreement").

This 1991

would include

moving toward

such an agreement

Agreement was written in the form

of a letter from NTNY, under its predecessor name of TRW, to Lett

and Giuliano.

memorialize and

The first paragraph states that it is "written to

confirm the

terms upon which

agreed to settle your disputes."

and

Lett

interests

(as

trustee)2 agreed

within the

you and

TRW have

Under this agreement, Giuliano

to

Vineyard Acres

transfer

II

various specified

subdivision to

NTNY's

predecessor in

exchange for

specified consideration,

payment to Lett and Giuliano of $350,000.

including

All pending litigation

____________________

Lett contends

that she specifically crossed out

the parts of

the agreement referring to Lett "individually," thus intending to

retain any lots which she held as an individual.

-5-

between

the

parties, including

the

Fraud

Action, was

to

be

dismissed.

Additionally, NTNY's

best efforts

subdivision.

were developed

proceeds

to develop,

market, and sell

Further, the

and sold,

above NTNY's

predecessor agreed to

the lots

agreement stated that

Lett and

Giuliano

predecessor's "sunk

use its

within the

once the lots

would receive

costs."

The

all

items

which NTNY's predecessor could include and recover as these "sunk

costs" were specifically

enumerated, and covered all

aspects of

NTNY's predecessor's costs related to Vineyard Acres II.

On

Giuliano

NTNY's

the day

the 1991

Agreement was

signed, Lett

and

delivered the required deeds to NTNY's predecessor, and

predecessor paid them $350,000 pursuant to the agreement.

The Fraud Action was dismissed shortly thereafter.

In 1994, Giuliano applied for

a loan from NTNY.

NTNY,

still uncertain about

1990 agreement,

how the

court system

required Lett to

would evaluate

execute, as part of

the

this loan

transaction, an "Assignment, Agreement and Release" in which Lett

released

any

claims she

Insurance Company."

claims

may

As

printed, the

against "Nations

Park,

Kansas."

parties

Title

NTNY has

intended this to

have had

against

"Nations Title

document released

Insurance Company,

always contended,

be NTNY (Nations

Lett's

of

Overland

however,

that all

Title Insurance-NY),

which was the company making the 1994 loan and taking back a note

and mortgage.

York

Inc.

In fact, there are the handwritten

and family"

added

insurance company on this 1994

after

the

words "of New

printed name

of

the

deed, but Lett contends that when

-6-

she signed

the release, such words had not

document, Lett

also

assigned

"any

and all

been added.

right,

In this

title

and

interest that she has or may have had in any and all lands in the

Town

of

Edgartown,

County

Massachusetts, to said Louis

done so that it

Dukes,

Giuliano."

Commonwealth

of

Lett contends this

was

would be easier for Giuliano alone

NTNY on developing the property.

the execution of

of

to work with

On December 19, 1994, following

this agreement, NTNY loaned

Giuliano $165,000,

taking back a

note and mortgage for unrelated

property owned by

Giuliano located in Rhode Island.

Plaintiffs subsequently brought this action for,

among

other things, fraud and violation of Mass. Gen. Laws ("G.L.") ch.

93A, for unlawful business practices.

argument

was

enforceable

capacity,

their

agreement

an

claim

that

which

interest

in

the

gave

the

The heart of

1990

Lett,

Vineyard

Plaintiffs'

agreement

in

II

her

was

an

individual

property.

NTNY

counterclaimed

and moved for summary judgment, claiming that the

1990 agreement

was an

that the

because

unenforceable "agreement

1991 agreement settled

Lett transferred

predecessor.

all

to agree,"

all claims between

title in

the property

and

the parties

to NTNY's

Plaintiffs, however, contend that while in the 1991

agreement

she

Lett transferred the

did not

transfer the

through the 1990 agreement.

interest she held

property

she held

as a trustee,

as an

individual

Plaintiffs also claimed that due to

the language of the 1994 agreement, Lett released only her claims

against "Nations Title Insurance Company,"

which is not the name

-7-

of any

party to this lawsuit, and that

Lett did not release her

claims

against NTNY.

Further,

documrty to Giuliano,

property

Lett claims

which was her

that in

this 1994

individual interest in

the

acquired from the 1990 agreement, thus leaving Giuliano

now free to pursue claims against NTNY.

The district

judgment.

The

court granted NTNY's

court

held

unenforceable "agreement to

alternative

ruling,

obtained under that

that

that

agree."

Lett

had

the

motion for

1990

letter

The court then

given

up

1990 agreement by signing

any

summary

is

an

held, as an

rights she

the 1994 release.

The court then declared the 1991 settlement agreement to be valid

and enforceable.

file

an amended complaint

particularity.

their

Finally,

93A claim

the court

gave Plaintiffs leave

setting forth their

to

fraud claim with

The court also gave Plaintiffs leave to reassert

if they

were able

to meet

the jurisdictional

prerequisites of such claim.

Following this

submitted

a Proposed

grant of

summary judgment,

Second Amended

court denied Plaintiffs' motion to

Complaint.

amend as futile.

Plaintiffs

The

district

This appeal

followed.

CONTRACT INTERPRETATION
CONTRACT INTERPRETATION

This

agreements

case initially requires the analysis of the three

involved in

their enforceability:

its predecessor name

this matter,

and

the determination

of

(1) the 1990 agreement between NTNY (under

of TRW) and Lett, which

for Plaintiffs' claim that Lett

provides the basis

held an interest in the property

-8-

as an individual, and which NTNY claims is unenforceable; (2) the

1991

agreement between NTNY (under its

predecessor name of TRW)

and Plaintiffs, which NTNY claims settles all claims between

the

parties, and which Plaintiffs claim is unenforceable; and (3) the

1994 assignment and

Giuliano

all of

release, which Plaintiffs claim

Lett's

rights

and title

with

assigned to

regard to

the

property she claimed as an individual through the 1990 agreement.

1.
1.

Standard of Review
Standard of Review

We

review

the

district

court's

grant

of

summary

judgment "de novo," drawing reasonable inferences in favor of the

nonmovant.

Garita Hotel Ltd. Partnership v. Ponce Federal Bank,

_____________________________
___________________

122 F.3d 88 (1st Cir. 1997).

novo review

only if it

resort

speculation.

to

Agencies, Inc., 120

_______________

court's

grant of

pleadings,

admissions on

there is no

moving party

An inference is "reasonable" on de

can be

drawn from the

Hidalgo
_______

F.3d 328

summary

depositions,

(1st

v.

Overseas Condado Ins.

_______________________

Cir. 1997).

judgment

is

answers

to

is entitled

Hidalgo, supra, at 332.

to a

An

The

appropriate

"the

interrogatories,

and

any, show that

any material fact and

judgment

district

when

file, together with affidavits, if

genuine issue as to

evidence without

as a

that the

matter of

law."

appellate panel is not restricted to

_______

_____

the district court's reasoning but can affirm

on

any independently

sufficient ground."

Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).

_________

2.
2.

Enforceability of the 1990 Agreement

Enforceability of the 1990 Agreement

-9-

a summary judgment

Mesnick v.
_______

General
_______

Under

agreement

Massachusetts

law,

is a contradiction in terms

an "agreement

to

reach an

and imposes no obligation

on the parties thereto."

Rosenfield v. U.S. Trust Co., 290 Mass.

__________
______________

210, 195 N.E. 323 (1935).

"A purported contract which is no more

than an agreement to

agree in the future on essential

terms, or

one which does not adequately specify essential terms, ordinarily

will

be unenforceable."

Air Technology Corp.

____________________

v. General Elec.
_____________

Co., 347 Mass. 613, 626, 199 N.E.2d 538, 548 (1964).
___

In determining whether an agreement is an unenforceable

"agreement to

for

they

agree" or an

enforceable contract, the

the court is "whether the

signed

the

contract

key issue

parties intended to be bound when

and,

if

so,

whether

the

initial

agreement included

all of

Packaging Corp. v.
_______________

Robertson Group, Inc., 651 F.

_____________________

(D. Mass. 1986).

Further, the fact

a finding that

sufficient

Id.
___

The

Supp. 520, 535

with

the

parties.

a binding

essential terms are agreed upon at

terms

must

and

clarity

aid

of

circumstances, may enforce it."

Id.
___

is contemplated does

the original agreement was

essential

definiteness

interpretation

Rand-Whitney
____________

on the intentions of the

that a further agreement

contract, so long as the

start.

terms."

Accordingly, a letter of intent may be binding

or nonbinding, depending

not defeat

the essential

be set

that

existing

and

forth

court,

the

"with

by

contemplated

George W. Wilcox, Inc. v. Shell

______________________
_____

Eastern Petroleum Products, 283 Mass. 383, 388, 186 N.E. 562, 564
__________________________

(1933).

-10-

review of

reveals that the

the 1990

Agreement in

district court was correct in

this agreement was

agreement indicates

an unenforceable "agreement

no intention by

the instant

case

its holding that

to agree."

the parties to be

The

bound to

particular terms;

rather, the letter commits the parties only to

working "cooperatively in a project involving the continuation of

the

development, marketing

subdivision."

reasonable

of

the Vineyard

Acres II

The language used includes terms such as "best and

efforts" and

generalities,

actions to

and sale

"reasonable

but contains

be taken by

responsibilities assigned

no

specific

either party.

to

amounts,"

and other

figures, deadlines

This lack of

either party

makes

such

or

duties and

this

"Letter

Agreement" unenforceable because it gives the court no guidelines

which

it could

apply to enforce

Wilcox, supra (valid contract

______ _____

sufficient

enforce it).

the contract.

See
___

must set out essential

definiteness and clarity

so court can

George W.
_________

terms with

interpret and

Further, the parties' failure to include either the

exact amount NTNY would retain from the lot sale proceeds, or the

formula for its calculation renders this contract invalid.3

Plaintiffs

argue

that

under

the

case

of

Hastings
________

Associates, Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass. App. Ct.
________________
__________________________
____________________

The 1990 Agreement provides:

The Parties agree

of

the sale of Vineyard Acres II lots as

follows:
upon by all
for

to divide the proceeds

a fixed

to be

agreed

Parties will be paid

to TRW

expenses

exceeding that

amount

incurred

and

fixed amount paid

will be paid to Lett.

-11-

proceeds
to TRW

162, 675 N.E.2d 403 (1997), the fact that the parties agreed that

NTNY's

be

predecessor would subsequently receive "a fixed amount to

agreed

upon"

is

enforceable contract.

shows

that it

is

sufficiently

definite

However, an analysis of

easily

distinguished,

and

to

constitute

an

the Hastings case

________

that

the

vague

discussion of the payment amount in the 1990 Agreement supports a

finding of indefiniteness.

In

lease renewal

payment term

Hastings, a Massachusetts appeals court held that a

________

provision was

enforceable

but provided that

where it

if the parties could

left open

not agree,

then

they were to select a

third party to determine the amount.

The appeals court there held that this provision was enforceable,

and not

merely

an "agreement

clearly demonstrated that

to

agree" because

the only thing that was

the

language

left open was

the identity of a third party to solve any potential dispute that

should arise.

indefinite due

Id. at 409-10.
___

This did not render

to the parties'

the agreement

otherwise clear intention

to be

bound, and the "commonly employed practices . . . for selecting a

neutral third party to determine value."

Id. at 410.
___

We find Plaintiffs' reliance on Hastings in this matter

________

misplaced.

While the

contract

resolution in case the parties

in

Hastings
________

provided

for

themselves could not agree on the

formula

thing.

to use,

the 1990

Agreement involved

here did

no such

Rather, the 1990 Agreement merely stated that the parties

would discuss

and agree upon the formula at

vague language gives

a later date.

This

a court no way to interpret and enforce the

-12-

intent of

the parties,

and thus

is an

unenforceable contract.

See Saxon Theatre Corp. v. Sage, 347 Mass. 662,

___ ____________________
____

666, 200 N.E.2d

244 (1964)

(finding unenforceable

a letter

agreement providing

that the "basic plans and specifications" of

a proposed building

were "to be mutually agreed upon").

In light of

an essential

rights

term, and

and duties of

district

the fact that this agreement

court that

gives the

court no

way to enforce

the parties, we affirm

the

1990

Agreement

has left out

is

the

the holding of the

an

unenforceable

"agreement to agree."

3.
3.

The 1994 Release

The 1994 Release

Plaintiffs

claim that by

this document, Lett assigned

to Giuliano all the interest in the Vineyard II property that she

held as an

individual as a result

1994 document also contained

of the 1990 Agreement.

a release of Lett's

This

claims against

"Nations Title Insurance Company."

release

Lett's

claims

Plaintiffs claim this did not

against Defendant

NTNY

(Nations

Title

Insurance-New York) and so Giuliano is still free to pursue those

claims as Lett's assignee.

it was the

claims

clear intent of the

against

assertion

NTNY, on the

to

NTNY in

the

this

contrary,

other hand, claims that

parties for Lett to

agreement, and

the

name

used

that

in

release her

despite any

the

document

unambiguously refers to NTNY.

While

that the

the district

court made

1994 release was valid, we do

to our above holding that

an alternative

ruling

not reach this issue due

the 1990 Agreement is an unenforceable

-13-

agreement

to

transferred

agree.

1990

only

to Giuliano in this 1994

she claims from

this

The

the 1990 Agreement.

Agreement

interest

Lett

claims

she

agreement was the interest

Because we have

is unenforceable,

Lett

cannot

held that

claim any

interest through it.4

4.
4.

The 1991 Agreement

The 1991 Agreement

Plaintiffs argue that

must be

made in

there are three

their favor which

inferences that

preclude affirmation

of the

grant of summary judgment on the issue of the 1991 Agreement:

(a)

the 1991

Christopher
NTNY's

Agreement
Likens,

was

and

he

original or

was

copy

by

President

of

the Vice

predecessor, on

1991;

not signed

or

about March

unable

with his

to

21,

produce

an

signature on

it

until after the lawsuit commenced;

(b) Lett signed the

trustee

because

transaction

Property,

she

to convey

trustee in some

acquired

1991 Agreement solely as

and

intended
only her

in

interest as

mortgages on 32 lots
not

the

personally in

interests
the lots

that

on the
she

had

covered by

the 1990 Agreement; and

(c)
never

Likens

told

signed

Giuliano that
the

destroyed it,

and

1991
never

Likens

Agreement,
considered

had
had

it

an

operative agreement.

We hold that even when

still

fail to

taking the inferences as true, Plaintiffs

raise any

genuine issues

would preclude summary judgment.

of material

fact that

____________________

While there

ambiguity

may have been an issue

of fact as to whether

an

existed concerning the party which was released by the

1994 document,

it is not

relevant to this legal

analysis since

our holding about the 1990 Agreement extinguishes any interest or

claim that Lett released in this document.

-1414

The first

assertion, that

Likens failed

to sign

the

agreement on behalf of NTNY's

enforceable, a contract

predecessor, is irrelevant.

need only contain

party against whom it is to be enforced.

Mass.

seeking

207, 213

(1924) (contract

enforcement).

themselves

Plaintiffs

do

signed the 1991 agreement.

never signed the 1991 Agreement

it is

need

To be

the signature of

Forman v.
______

not be

not

the

Gadouas, 247
_______

signed by

contest

party

that

they

Therefore, even if Likens

on behalf of NTNY's predecessor,

still valid and enforceable against

Plaintiffs since they

do not contest that they signed it.

The second assertion,

that Plaintiff

a trustee, creates

Lett signed

1991 Agreement

only as

no genuine

material fact.

Even assuming that this is true, and that

the

issue of

by the

1991 Agreement Lett retained the interest in the land she held in

her individual capacity,

our earlier ruling concerning

the 1990

Agreement

makes this

claims to hold

point moot.

The

only interest

that Lett

as an individual is that which she claims to have

received through the

1990 Agreement.

However, because we

have

held that the 1990 Agreement

is unenforceable, Lett can claim no

interest

Therefore, at the

as an individual.

time of the 1991

Agreement, the only interest Lett held was as a trustee, which is

the

capacity

in

which

she

signed

the

1991

Agreement,

and

transferred all title to NTNY's predecessor.

Plaintiffs' third assertion, that

he never signed

considered it an

Likens told Giuliano

the 1991 agreement, had destroyed

operative agreement, is also

-1515

it, and never

immaterial to our

review.

the

Even if taken as true, these assertions do not show that

contract was improperly

Furthermore, after signing,

Lett

and Giuliano

required

under

executed or was

substantial performance took

transferred deeds

the

otherwise invalid.

contract,

to

NTNY's

NTNY's predecessor

predecessor

$350,000, and the pending Fraud Action was dismissed.

conclusion,

issue of

Plaintiffs have presented

material fact supporting

place:

no evidence of

their position that

paid

as

the

a genuine

the 1991

agreement was invalid.

Therefore, we affirm the district

court,

and hold that the 1991 agreement was valid.

THE PROPOSED SECOND AMENDED COMPLAINT

THE PROPOSED SECOND AMENDED COMPLAINT

Plaintiffs

denying

their motion

complaint as futile.

next argue that the district court erred in

to

file

their

proposed

particularity requirements

9(b),

their other

amendments

of Fed.

state viable

____________________

The proposed amendments are as follows:

The Amended Fraud Claim

(1)
and

"Defendants
with intent

falsely and
to defraud

fraud

R. Civ.

well.5

amended

Plaintiffs argue that their amended

count meets the

and that

second

fraudulently,
the Plaintiffs,

represented to the Plaintiffs that they would

P.

claims as

hold

the

develop

subject
it for

property

all parties

in

trust

and

[sic] benefit."

Proposed Second Amended Complaint,

95 (A at

398).

(2)

"The

defendants

falsely

and

fraudulently, and with intent to defraud

Plaintiffs,
that

the

represented
March 21, 1991

solely to the 39 Bay

to

the

the

Plaintiffs

Agreement

related

Court Lots and that the

Agreement related to Patricia Lett as Trustee

-1616

1.

Standard of Review

1.

Standard of Review

The

1st Circuit holds

that although motions

to amend

are liberally granted, a court may deny them if it believes that,

as a matter of law, amendment would be futile.

Dynamics Corp., 779 F.2d 95,

______________

v.

2.
2.

Demars v. General
______
_______

99 (1st Cir. 1985) (quoting Tiernan

_______

Blyth, Eastman, Dillon & Co., 719 F.2d 1, 4 (1st Cir. 1983).
_____________________________

The Amended Fraud Claim

The Amended Fraud Claim

Under Fed.

R. Civ. P.

9(b), when alleging

fraud, the

complaint must set forth "specific facts that make it

reasonable

to believe that defendant[s] knew that a statement was materially

false or misleading."

Serabian v. Amoskeag Bank Shares, Inc., 24

________
__________________________

____________________

and

further

that

the

Agreement

had

been

destroyed."

Proposed

Complaint,

(3)

Second

Amended

99 (A at 399).

"The

defendants

falsely

fraudulently, and with intent

Plaintiffs,
that they

represented

and

to defraud the

to

the

Plaintiffs

would loan 1.6 million

dollars to

plaintiffs in order to induce plaintiffs into

pledging the Vineyard
on

property as collateral

a loan and by further inducing plaintiffs

to execute the 1994 Assignment, Agreement and

Release."

Proposed Second Amended Complaint,

103 (A at 399-400).

The New Breach of Contract Claim

(1)

"Plaintiffs

obligations
1991

to

paragraphs

but

perform

the
its

Defendants
obligation

a breach

under

108).

"The above described

constitute a

have

of contract."

The New Claim for Violation of G.L. ch. 93A

(1)

their

1, 3, 6, and 7 of said agreement,

thereby constituting
(A at 400,

performed

under the terms of the March 21,

Agreement,

failed

fully

violation of

Consumer Protection

9 and 11

acts and practices

the Massachusetts

Statute, M.G.L.

Chapter

93A,

9 and

11."

(A at 401,

111).

-1717

F.3d

357, 361

Corp., 975 F.2d

_____

the

(1st

Cir. 1994)

(quoting

22, 25 (1st Cir. 1992)).

particular "'times, dates, places

alleged

fraudulent

involvement'"

Serabian, supra, at 361

________ _____

of

Greenstone v.
__________

Cambex
______

The rule requires that

or other details of [the]

the

actors

be

alleged.

(quoting In re GlenFed, Inc. Securities

_______________________________

Litigation, 11
__________

F.3d 843, 847-48

(9th Cir. 1993), reh'g en banc

______________

granted, 11 F.3d 843 (9th Cir. 1994)).

_______

The amended

the

requirement

allegations of

fraud claim in

of Rule

9(b)

this case failed

because

in

fraudulent statements by

none of

denial is

or the

details of

additionally warranted in

the

three

Defendants' predecessor

did Plaintiffs identify specific conversations,

the conversations,

to meet

the locations of

the conversations.

light of the fact

This

that the

district court granted Plaintiffs leave to amend the fraud claim,

specifically

directing Plaintiffs

that the

amended

claim must

meet the specificity requirements of 9(b).

3.
3.

The Amended Breach of Contract Claim

The Amended Breach of Contract Claim

We affirm the

district court's denial of

this amended

claim on the grounds that

legal claim

this amended allegation fails to state

for relief.

In

this amended

claim, Plaintiffs

allege that Defendant NTNY, under its predecessor name,

the enumerated paragraphs of the

efforts"

in securing

property

and developing

claim alleges no

to use its

the

1991 Agreement to use its "best

release

of

the property.

adverse

claims

However, this

instances where Defendant's predecessor

"best efforts."

breached

Thus,

-1818

the claim, as

to

the

amended

failed

amended, would

indeed

be futile,

and the

Further, we note that the

leave

to amend

district court

properly denied

it.

district court did not give Plaintiffs

this claim

of their

complaint.

Therefore, we

affirm the denial of this untimely amendment.

4.
4.

The 93A Claim

The 93A Claim

The district

their

complaint with respect

prove that

a demand letter

requirement to bring a

Slaney
______

court granted Plaintiffs

v.

93A

to this claim

was sent.

9 claim.

Westwood Auto, Inc., 366

_____________________

leave to

amend

if Plaintiffs could

This demand letter

See G.L.
___

Mass.

ch. 93A

688,

704

is a

9(3);

(1975);

Baldassari
__________

(service

v. Public Finance Trust, 369

______________________

of demand

amended complaint

letter must

fails to allege

all prerequisites to

the

alleged unfair

substantially"

Although

be

a 93A

alleged and

acts

within Massachusetts.

the Proposed

Second

33, 41

Amended

(1975)

proved).

that such a letter

11 claim.

or deceptive

Mass.

The

was sent,

This claim requires that

occurred "primarily

See
___

G.L.

ch. 93A

and

11.

Complaint provides

some

details of additional conversations involving NTNY's predecessor,

these are

alleged

to have

telephone calls with

was in

Kansas.

taken

place in

New Jersey,

Likens of NTNY's predecessor,

Thus, this

supplementation

does

or

in

whose office

nothing

to

counter Defendant's prior showing that the acts at issue occurred

primarily

and

substantially

outside

Massachusetts.

It

additionally

does

Plaintiffs complain

nothing

to show

that

occurred primarily and

the

events of

which

substantially within

-1919

Massachusetts.

Therefore, this

amended claim would

and the district court's denial of it was proper.

CONCLUSION
CONCLUSION

be futile,

For the reasons set forth above, the district court did

not err in

its grant of summary judgment on the grounds that (1)

the 1990 Agreement was an unenforceable "agreement to agree," and

(2)

the 1991

agreement

district court's

was

denial of

a valid

Further,

Plaintiffs' proposed second

complaint as futile was proper

failed to meet

contract.

amended

given the fact that the complaint

the specificity requirements required

and it otherwise failed to state

the

under 9(b)

a legal claim for relief.

decision of the district court is AFFIRMED.

AFFIRMED

The

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