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

Jacobson and
________

Israel

________________________

and Miriam

Laudon.

Kaplan and Jacobson, Inc. on

___________________________

William A.
___________

brief for

appellee

David Thibodeau.

____________________

December 23, 1996

____________________

TORRUELLA,
TORRUELLA,

Chief
Chief

Judge.
Judge.

Plaintiffs-appellants, H.P.

____________

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

Israel

Laudon

Department;

("Laudon"), Vice

Miriam

Laudon,

Chief Executive Officer;

President

Laudon's

of Hasbro's

wife;

David

Traffic

Thibodeau,

Laudon's assistant; Hugh Maxwell,

an Executive Vice President at

Hasbro;

Transport Services

and Michael

Oliva d/b/a

("Oliva").

Plaintiffs claimed violation of the federal racketeering laws, 18

U.S.C.

1962(c)

violations

of

& (d)

("RICO"),

Massachusetts

against

all defendants

larceny

against

state

(Count

Laudon,

Oliva

as

well as

law:

I); civil

and

breach

the

of

following

contract

conversion and

Thibodeau

(Count

civil

II);

intentional

and

malicious

interference

with

an

advantageous

business relationship against Laudon, Oliva, and Thibodeau (Count

III);

Laudon,

intentional

Oliva,

infliction

and

misrepresentation

Hasbro

(Count

Thibodeau

against

V);

and

of

emotional

(Count IV);

Laudon,

distress

fraud,

Thibodeau,

negligent

entrustment

against

deceit

and

Hassenfeld,

and

or

negligent

supervision against Hasbro (Count VI).

The district court dismissed

I through VI as to

defendants Hassenfeld, Oliva, and

Doyle v. Hasbro,
_____
______

884 F.

order dated May

4, 1995,

Laudon

the RICO claim and Counts

Supp. 35, 42

(D. Mass.

the claims against

were also dismissed.

The RICO claim

-2-

Thibodeau.

1995).

Israel and

In

an

Miriam

against Hasbro was

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.
I.

Plaintiffs'

facts.

who

BACKGROUND
BACKGROUND

amended

complaint

alleges the

following

In August and September 1980, plaintiffs met with Laudon,

agreed,

on

Hasbro's

behalf,

to

retain

the

plaintiffs'

services

for hauling and

Laudon required that

percent of the

delivering freight.

Doyle pay

traffic charges

acceded to Laudon's

to Oliva a

In October 1980,

"commission" of

billed by H.P.

Leasing.

request, viewing the payments

instructed by

necessary for the

relationship,

Laudon that

continuance of

Laudon

informed

increase and that additional

In

reliance

tractors.

on these

receipt of

the

Early in

business

the

would

tractor-trailers would be required.

representations, plaintiffs

The increase in business

did not merit such expansion.

Doyle

commissions was

the contracts.

plaintiffs that

Doyle

as a business

expense that would ensure a consistent volume of business.

was

ten

purchased 28

that materialized, however,

____________________

Doyle
_____

v. Hasbro,
______

dismissed Count V as

884 F.

Supp. 35,

42-43 (D.

Mass. 1995),

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

its

the remaining

defendants."

Id. at 42-43.
___

In

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.

Plaintiffs-appellants

have appealed

claims that were dismissed.

-3-

only

a subset

of

the

As time went on, Oliva and Laudon reduced the volume of

business

sent

to H.P.

Leasing.

Leasing paid Laudon and

year,

but

from 1990

Between

1982 and

1985, H.P.

Oliva commissions averaging $440,000 per

to

1992,

these

payments

averaged

only

$45,000.

Over the

forced

Doyle

employees,

twelve years from

to pay

yearly Christmas

parties

to

for Laudon

the Holocaust

and his wife,

be

for Hasbro

Memorial.

Doyle

and to

and his

personally contacted, harassed and threatened during

For

Laudon also

to give gift certificates to Hasbro employees, to pay

for personal vacations

$30,000

for

1980 to 1992,

example, Thibodeau, Laudon, and their

taken out

to

dinner.

These

pledge

wife were

the period.

wives would demand to

demands were

accompanied

by

comments

and you

such as "I own you" and

won't have a house

"I can put you out of business

to live in."

Laudon, Thibodeau and

Hassenfeld worked closely together and were aware of each other's

conduct.

In

1992, Laudon informed

ought to file for

Code.

minimum

plaintiffs that H.P. Leasing

bankruptcy under Chapter 11 of

the Bankruptcy

He promised that Hasbro would support H.P. Leasing

of $50,000

choice,

and,

bankruptcy.

on

a week

March

in revenue.

12,

Defendants did not

1992,

Doyle

H.P.

felt he

Leasing

with a

had no

filed

provide the support promised

for

by

Laudon.

In June 1992, Doyle stopped making

to Laudon.

commission payments

Doyle perceived Hasbro's failure to

award contracts

-4-

to

plaintiffs as a breach

him.

In November

that

plaintiffs receive

week

in business.

in business from

of the prior

representations made to

1992, Doyle met with Hassenfeld,

In

twenty to

dollars per

January 1993, plaintiffs received $28,000

Hasbro.

closed for business.

thirty thousand

who directed

On January 27, 1993,

H.P. Leasing was

II.
II.

We review the

STANDARD OF REVIEW
STANDARD OF REVIEW

motion to

dismiss de novo.
_______

Blanchard, 83 F.3d 1, 3 (1st Cir.

_________

well-pleaded

inferences

factual

in the

Federal Rule

averments

plaintiff's

of Civil Procedure

1996).

and

Id.
___

all

reasonable

Dismissal

12(b)(6) is appropriate

facts alleged, taken as true, do not justify recovery.

entirely

Id.
___

The

tiger."

The Dartmouth Review v. Dartmouth College, 889 F.2d 13,

____________________
_________________

"The threshold [for stating a

low, but it is real."

Gooley v.
______

514 (1st

In

if the

requirement, however,

Cir. 1988).

"not

under

pleading

16 (1st Cir. 1989).

is

v.

We accept as true "all

indulg[e]

favor."

Aulson
______

toothless

claim] may be

Mobile Oil Corp., 851 F.2d 513,

________________

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."

the

Id. at 515.
___

plaintiffs'

assertions,

favor,

Although all inferences must be made in

this

court

unsupportable

circumlocutions, and the like."

need

conclusions,

not

accept

"bald

periphrastic

Aulson, 83 F.3d at 3.
______

In conducting our review of the case, we are limited to

those

allegations contained in

the amended complaint.

-5-

This is

true both as to facts, see Litton Indus., Inc. v. Col n, 587 F.2d
___ ___________________
_____

70,

74

(1st

allegations

reading

Cir.

1978)

("[O]ur

of the complaint.

of [the

focus

is

limited

to

the

The question is whether a liberal

complaint] can

reasonably admit

of

a claim."

(internal quotations omitted)), and as to arguments, see McCoy v.

___ _____

Massachusetts Inst. of Technology,

__________________________________

1991) ("It is hornbook

the

district

appeal.").

arguments,

13,

22 (1st

law that theories not raised

court cannot

be surfaced

We, therefore, do not

and

950 F.2d

claims that

were

for

Cir.

squarely in

the first

time on

consider factual allegations,

not included

in

the amended

complaint.

III.
III.

We begin by

under 18 U.S.C.

THE RICO CLAIMS (COUNT VII)

THE RICO CLAIMS (COUNT VII)

considering plaintiffs-appellants'

1962(c) and (d).

It

shall

employed

be
by

Section 1962(c) reads:

unlawful
or

for

which

commerce,

any

associated

enterprise engaged in, or

of

conduct

person

with

any

the activities

affect, interstate
to

claims

or

or foreign
participate,

directly or indirectly, in the conduct of

such

enterprise's

pattern

of

affairs

racketeering

through
activity

a
or

collection of unlawful debt.

18 U.S.C.

unlawful

1962(c).

for

Section 1962(d) states that "[i]t

any person

to violate

any

of the

subsections (a), (b), or (c) of this section."

For

the section 1962(c)

Id.
___

claim to survive

shall be

provisions of

1962(d).

a motion to

dismiss,

an

the amended complaint must allege:

enterprise

activity."

(3)

through

Sedima, S.P.R.L. v.
_________________

pattern

"(1) conduct (2) of

(4)

Imrex Co.,
_________

of

racketeering

473 U.S.

479, 496

-6-

(1985); see also Arzuaga-Collazo v. Oriental Fed. Sav. Bank,

________ _______________
_______________________

F.2d 5, 5-6 (1st

Cir. 1990).

has standing if, and can only

"In

addition, the plaintiff

913

only

recover to the extent that, he has

been

injured

in

his

business

constituting the violation."

unlawful

This court

has held

enterprise

itself

or

property

by

the

conduct

Sedima, 423 U.S. at 496.

______

that under section

cannot

plaintiff charges with conducting it."

also

be

1962(c), "the

the

person

the

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

_______________

cases).

In

allege

the

order

F.2d 28, 29-30 (1st Cir.

to succeed,

existence

of

therefore,

"person"

1986) (collecting

the complaint

distinct

from

must

the

"enterprise."

We must, therefore, determine

if the amended complaint

is

sufficient to identify a

amended

complaint

is

reasonably

"person" requirement,

stating that

'persons' within the meaning

62 (emphasis added).

statement includes

"person" and an

The

clear

"enterprise."

with

respect

"all of said
___

of this Act."

to

The

the

defendants are

Amended

Complaint

only reasonable interpretation of this

all defendants:

Hasbro, Hassenfeld,

Laudon, Miriam Laudon, Hugh Maxwell, Thibodeau, and Oliva.

Israel

Later

in the same paragraph, the complaint once again alleges that "all
___

defendants can be shown

Act."

allege

Id. (emphasis
___

the

section

to be persons within the meaning of this

added).

In paragraph 64,

1962(d)

violation,

-7-

the

where appellants

amended complaint

states

that

"plaintiff

defendants,"

is

entitled

(emphasis added)

defendant is,

to

once again

individually, identified

relief

against

suggesting that

as a "person"

all
___

each

under the

Act.

The amended

of

the

defendants

plaintiffs-appellants

paragraphs

complaint fails to

in

its

do not

61-63, in which

section

distinguish any subset

1962(c)

mention any

claim.

defendant by

the violation of

Indeed,

name in

section 1962(c) is

alleged.

Thus, although appellants'

that only Hasbro

is a

complaint does not,

brief would have us believe

"person" for RICO

even under a generous

purposes, the

amended

reading, support this

claim.

Although the amended complaint alleges the existence of

an enterprise, id. at
___

may be that a

that

sympathetic reader could infer from

for example, from the

"[d]efendant, Hasbro,

the complaint

Act."

a manner

Id. at
___

complaint's allegation that

Inc., is civilly liable

agreement of its officers

corporation in

RICO

It

Hasbro was the alleged RICO enterprise; this reading might

take support,

for an

62, it never squarely identifies one.

to conduct the affairs

which violates

64.

under [

However,

Section 1962(c)

the possibility

1962(d)]

of the

of the

that the

plaintiffs considered

the

complaint's

"person."

Hasbro the

repeated

"enterprise" is

contention

that

undermined by

Hasbro

is

RICO

A RICO person cannot also serve as the RICO enterprise

that the person is

allegedly conducting in violation

of section

-8-

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

own

Hasbro is the enterprise.

company, H.P.

Leasing, is

rewrite the complaint language

sufficiently

plaintiffs

holding

identified

do not

the enterprise.

We

decline to

in order to find that

plaintiffs

Hasbro

even

plaintiffs to

complaint to

Instead, they contend that their

as

suggest as

much

their present

see whether

it can

RICO

enterprise

on appeal.

position, we

fairly be

taken

when

Rather,

look to

the

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

plaintiff

H.P.

defendants that

Complaint

between

63

the

activity, and

and

with

from

count

the

allegedly caused

appears

control

of

said

ultimately the

We

add

to

enterprise

distinguish

controlled

H.P. Leasing injury.

("The facts provided . . .

plaintiffs' present

Cf.
___

RICO

Leasing

Pat Doyle.").

court.

the

by

Amended

above, allege a nexus

enterprise,

the

racketeering

injury to plaintiffs

H.P. Leasing

that there

position was

is

no indication

ever advanced in

that

the district

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

point,

that

the

claim

different respect.

must

47.

remarkably

relationship between

and [the] asserted injury."

Here, if there

weak

in

quite

To prevail under section 1962(c), a complaint

"establish a causal

predicates

appears

the

had been

the racketeering

Miranda, 948 F.2d at 46_______

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

1962(c)

bare requirements

and (d).

of a

Because we find

dismissed for failure

RICO claim

under sections

that the RICO

count must be

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.
IV.

A.
A.

Negligence (Count VI)

Negligence (Count VI)
_____________________

Count

supervision"

THE STATE LAW CLAIMS

THE STATE LAW CLAIMS

by

VI alleges

Hasbro.

"negligent entrustment

We

will

deal

with

or negligent

the two

claims

separately.

The tort

cases in which

of negligent entrustment is

a defendant has entrusted

incompetent driver, resulting in injury.

normally used in

a motor vehicle to

See,
___

an

e.g., Mitchell v.
____ ________

____________________

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

decided.

-10-

of

this case

need not

be

Hastings & Koch Enters., Inc., 647 N.E.2d 78, 82-84

______________________________

Ct.

1995); Kunkel v. Alger, 406 N.E.2d

______
_____

1980).

may

402, 407 (Mass. App. Ct.

The tort has also been applied to suppliers.

be liable for harm

caused after the

placed property in the hands of

(Mass. App.

A "supplier

supplier has knowingly

an incompetent person."

Kyte v.
____

Philip Morris, Inc., 556 N.E.2d 1025, 1029 (Mass. 1990).

___________________

Plaintiffs-appellants

to the instant case.

They have not offered, and our own research

has failed to uncover, any

in

this circuit,

would have us apply the doctrine

cases from Massachusetts or elsewhere

applying the doctrine

to facts

that resemble

those at bar.4

The question

should

expand

entrustment,

the

for this court, therefore,

present

very

from

entrustment

parent or other

the

relationships

cases.

of

The

usually

latter

at

be possible

issue

normally involve

minor or incompetent

involves

a person's

To

to point to

in

person

"An action

duty to

instrumentality out of a child's reach."

While it may

negligent

its employees is

or some other instrumentality.

negligent entrustment

dangerous

tort

use of the doctrine which we decline

adult entrusting a

with a motor vehicle

for

the

The relationship between a firm and

different

negligent

of

as used in Massachusetts, to include this case.

do so would require a novel

to adopt.

reach

is whether we

keep a

Id. at 1036.
___

similarities between

the

____________________

Plaintiffs-appellants muster only a single district court case

in support

of their claim, Bernstein v.

_________

1079 (D. Del. 1984).

IDT Corp., 582 F. Supp.

_________

Although that case has certain similarities

to the case at bar, we are not bound by its holding.

-11-

current application

of the

plaintiffs-appellants, we

more striking.

doctrine

and the

one advocated

believe that the differences

by

are much

Furthermore, plaintiffs-appellants

argument showing

why

context

would

be

reasons

whatsoever why

Because

the question

the application

desirable.

before us

application.

issue under

"[A]s a

their

brief

of state

this

offers no

the doctrine.

law, we

must

considering the adoption of a

federal court hearing

our supplemental

extend [state]

doctrine in

should extend

is one

exercise considerable caution when

new

of the

Indeed,

this court

offer no convincing

jurisdiction, we are

law beyond its well-marked

this state law

reluctant to

boundaries."

Andrade
_______

v. Jamestown Housing Auth., 82 F.3d 1179, 1186-87 (1st Cir. 1996)

_______________________

(citations

extension of

omitted).

Without

powerful

argument

for

the

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

supervision reaches the instant case.

We

need not decide that

fails

appeal

on other

is

grounds.

that "had

doctrine

of

Doyle, 884 F. Supp. at 42.

_____

issue here, however,

because the claim

The plaintiffs-appellants'

plaintiffs

responsible and honest Hasbro

been

negligent

dealing with

theory on

competent,

employees, H.P. Leasing would have

-12-

simply shipped goods, made a profit, and there would be no issues

to litigate."

contradicted

Appellants' Brief at 36.

by the

amended complaint,

This theory, however, is

which alleges

that the

commissions, or kickbacks, were paid within a month or two of the

start of the relationship between the parties

believed

the

business."

alleged

payments

"would

insure a

and that plaintiff

consistent

volume

of

Plaintiffs would be entitled to damages only if they

that they would

absence of kickbacks.

have received Hasbro's

business in the

If H.P. Leasing was awarded

the business

only because it

earned

it

agreed to the

kickback scheme, and,

therefore,

profits that it would not have earned without the scheme,

cannot claim

damages

Plaintiffs, however,

when

make no

the

scheme

claims to

comes

to

the effect that

an

end.

proper

supervision by Hasbro would

have left plaintiffs-appellants in a

better

no evidence that

have

position.

received any

kickback

scheme.

There is

business from

It

is not

stating

a claim for damages

illegal

kickbacks

Hasbro in

sufficient

the absence

for the

that the benefits

have disappeared.

alleged, plaintiffs-appellants

H.P. Leasing would

Because

of the

purposes

of

derived from the

no damages

have failed to state

are

a claim for

negligent supervision.

For the

foregoing reasons, we affirm

______

the dismissal of

Count VI.

B.
B.

Fraud, Deceit, and Misrepresentation (Count V)

Fraud, Deceit, and Misrepresentation (Count V)
______________________________________________

Count V of

defendants

the complaint alleges

Laudon, Thibodeau, Hassenfeld

that the conduct

of

and Hasbro constituted

-13-

"fraud, deceit

54.

and misrepresentations."

Amended

Complaint at

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

material
that

the

deceive;
to the

(3)

that

the

statement was

plaintiffs' decision

plaintiffs

reasonably

. .

relied

.; (4)
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

son,

Complaint

37.

Hassenfeld also

promised that Doyle's

the owner of a contract carrier in the State of Washington,

"would be

taken care of and

Hasbro."

Amended Complaint

would continue to do

41.

In both cases, the complaint

suggests that Hassenfeld's comments were

wrong done to

plaintiffs,"

amends," amended complaint

Several of

"an effort to right the

amended complaint

37,

or to "make

41.

the required

are absent from these allegations.

elements of common

the promises

law fraud

First, there is no allegation

that Hassenfeld's statements were knowingly false.

complaint states that

business with

were an "effort

In fact, the

to right

wrong done to plaintiffs," suggesting that Hassenfeld intended to

keep these promises.

Second,

there is no

-14-

allegation that

the

statements were made with an intent to deceive.

Finally, neither

reliance nor injury is alleged.

The district

court also dismissed the

against Laudon and Thibodeau.

failed to argue

for the

claims of fraud

Because plaintiffs-appellants have

reversal of these

dismissals on

their

appeal, we do not review them here.

There remains

claimed

that defendants

the questions of whether plaintiffs have

Hassenfeld, Thibodeau,

and Oliva

were

part of a

larger conspiracy to

fraud is made against Hasbro.

conclusory

allegations

insufficient

that

41.

defraud and whether

the

Civ. P.

any pleading,

amended

complaint

9(b)'s strict

fraud be pled with particularity."

Appellants respond

his claim,

evidentiary

nor

matters."

requirement

that notice is the principal

including fraud, and

does it

Rule 9(b) "does

require

are

Doyle, 884 F. Supp. at

_____

the claimant to set out in detail all of the facts

bases

of

The district court ruled that "the

throughout

under Fed. R.

a claim

him to

purpose of

not require

upon which he

plead

detailed

Collins v. Rukin, 342 F. Supp. 1282, 1292

_______
_____

(D. Mass. 1972).

There is a well-developed

the

application of

Rule

9(b) in

body of case law surrounding

this

circuit.5

See,
___

e.g.,
____

____________________

Rule 9 reads, in relevant part:

(b) In all averments of fraud or mistake,

the

circumstances constituting

mistake

shall

particularity.

be

fraud or

stated

Malice,

with
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).

that

the

case law

interpreting and

dealing with general fraud

cases.

less

In New England Data Services,

_________________________

applying

Rule 9

we held

in cases

and securities fraud applies

to RICO

The "degree of specificity [in RICO cases] is no more nor

than

cases."

we have

required

in

general fraud

and

securities

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

suits,"

by

meritless

claims

and to prevent the

uncover relevant

of fraud,

to

filing of suits

discourage

that simply hope to

information during discovery.

Beranger Volkswagen, Inc., 633

_________________________

"strike

See McGuinty v.
___ ________

F.2d 226, 228-29 & n.2

(1st Cir.

1980).

In McGuinty, this court stated that "[t]he clear weight

________

of authority is that

place, and

Rule 9 requires specification of

content of an

alleged false representation,

the circumstances or evidence

be

inferred."

corruption

Id. at
___

or conspiracy,

referrals to plans
____________________

the time,

228.

but not

from which fraudulent intent could

"[M]ere

averments to

and schemes are

allegations of

conditions of

too conclusional to

fraud,

mind, or

satisfy

Fed. R. Civ. P. 9(b).

-16-

the

particularity requirement,

accusations

are repeated."

no

Hayduk
______

matter how

many times

v. Lanna, 775
_____

such

F.2d 441, 444

(1st Cir. 1985) (citations omitted).

We agree

with the district court

of conspiracy included in

that the allegations

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'

conspired

conduct.

to use

These defendants

H.P.

Leasing for

benefit of Hasbro and their

financial gain.

own personal

It is not certain

the specifics of the

the

what

conspiracy entailed

or how exactly defendants Thibideau [sic]

and

Hassenfeld

benefited

from

that

conspiracy.

Amended

Complaint

24.

Elsewhere in

these conclusory

allegations are

together to shut

down H.P.

Amended

Complaint

38.

repeated:

Leasing,"

"all defendants were suddenly

the

Amended Complaint,

"defendants

Amended

worked

Complaint

28;

acting to terminate H.P. Leasing,"

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

has

as against Hasbro in light of the fact that no claim

been made against any

of the other

Hasbro could act.

-17-

defendants through whom

Because the plaintiffs-appellants

the

requirements

of Rule

9,

we

have failed to

affirm the
______

district

meet

court's

dismissal of Count V as against Hassenfeld and Hasbro.6

C.
C.

Breach of Contract (Count I)

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

prevented

damaged.

and able

to perform;

them from

(3)

performing;

that defendant's

and (4)

breach has

that plaintiffs

See Singarella v. City of Boston, 173 N.E.2d 290,

___ __________
_______________

(Mass. 1961); Petricca v. Simpson, 862 F.

________
_______

were

291

Supp. 13, 17 (D. Mass.

1994).

Plaintiffs-appellants are mistaken in

they "need no more

breach of

40.

their belief that

than to allege that the facts [demonstrate a]

that contractual relationship."

Appellants' Brief at

"[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

alleged contract with any specificity.

of the

formed.

terms of a

Nor

were imposed

the

There is no presentation

contract, its duration,

or even when

it was

does the Amended Complaint explain what obligations

on each of the parties by the alleged contract.

____________________

It

The district

court states

that "Count

V must

against Thibodeau and Oliva as well [as Hassenfeld]."

F. Supp. at 41.

The Amended Complaint does not,

that Oliva

committed

has

fraud,

and,

be dismissed

Doyle, 884
_____

however, allege

therefore,

he

is

not

implicated in our discussion.

-18-

does

not plead that plaintiffs

contract

or

performing,

that the

were ready to

defendants'

breach

perform under the

prevented them

from

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

question of

Nor do

whether the individual defendants

liability on the ground

cannot

in bad faith.

that an agent for a

be personally liable

for the

we address the

are shielded from

disclosed principal

principal's conduct.

See
___

Doyle, 884 F. Supp. at 39.

_____

For the

foregoing reasons, we affirm

______

the dismissal of

the breach of contract claim.

-19-

D.
D.

Intentional
Infliction of
Emotional Distress
Intentional
Infliction of
Emotional Distress
__________________________________________________
(Count IV)
(Count IV)
__________

Count IV of

intentional

infliction

Oliva, and Thibodeau.7

in

355

the amended complaint

of

The

emotional

of emotional

in Agis v.
____

against Laudon,

Howard Johnson Co.,

__________________

A claim for intentional infliction

distress requires "(1)

inflict emotional distress or

distress

of

relevant requirements for this claim

Massachusetts were set forth

N.E.2d 315 (Mass. 1976).

alleges a claim

that the actor

that he knew or should

intended to

have known

that emotional distress was the

(2) that

the conduct was

likely result of [the]

'extreme and outrageous,'

conduct;

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

Id. at 318-19
___

claim

(citations omitted).

of intentional

infliction of

be expected to

The standard

endure it.'"

for making

emotional distress

is very

high in order to "avoid[] litigation in situations where only bad

manners

and mere

Recovery on such a

has acted with

hurt

feelings are

involved."

claim requires more than "that

an intent which is tortious or

Id.
___

at

319.

the defendant

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

____________________

Plaintiffs-appellants have not appealed the dismissal of this

claim against Oliva.

-20-

for another tort."

Foley v. Polaroid Corp., 508 N.E.2d 72,

_____
_______________

82

(Mass. 1986).

truth of

We agree

with the district court

all

allegations in

the

conduct

complained of

extreme

and outrageous

decency

and

community."

which

does not

are

the

amended

as a

complaint,

matter of

behavior beyond

utterly

that "[a]ssuming the

law amount

all possible

intolerable

in

attempted to

plead severe distress

civilized

of a

"Nor

nature

that no reasonable [person] could be expected to endure it."

Accordingly, we

affirm the
______

dismissal of the

to

bounds of

Doyle, 884 F. Supp. at 40 (citations omitted).

_____

has Doyle even

the

Id.
___

claim of

intentional infliction of emotional distress.

E.
E.

Interference
with
Advantageous
Business
Interference
with
Advantageous
Business
__________________________________________________
Relationships (Count III)

Relationships (Count III)

_________________________

Count III of the amended complaint alleges "intentional

and

malicious

business

interference

relationships" against

Amended Complaint

with

an

50.

the

defendant's

knowledge

interference

means;

(4)

resulting from

Servs., Inc. v.
____________

include:

contemplated contract

the

and Thibodeau.8

The elements of the tort of interference

defendant's

and

plaintiffs' advantageous

Laudon, Oliva,

advantageous relationship

relationship or

the

with

of

with

of economic

such

it

plaintiff's

"(1) a

loss

the defendant's conduct."

of

(3)

improper motive

advantage

the

or

directly

American Private Line

_____________________

Eastern Microwave, Inc., 980 F.2d

________________________

____________________

benefit; (2)

relationship;

through

business

33, 36

(1st

Plaintiffs-appellants have not appealed the dismissal of this

claim as against Oliva.

-21-

Cir.

1992) (citing

United Truck Leasing Corp. v.

___________________________

Geltman, 511
_______

N.E.2d 20 (Mass. 1990)).

Implicit

in

the

interference in a business

be lawful.

above requirements

for

intentional

relationship is that the relationship

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

business.

of allegedly

unlawful kickbacks in

exchange for

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

district court's dismissal on

discussed

herein,

we

affirm
______

the

all claims appealed by plaintiffs-

appellants:

the

RICO

count

against all

against all

defendants, Counts

III

and IV

defendants,

Count

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

an

overly

long brief.

permissible fifty pages,

Fed.

R. App.

Although

it is

Proc. 32(a),

the

brief is

not double

making the

-22-

have filed

less

spaced as

than the

required,

effective length

of the

brief

considerably longer.

reason for the length

the

Additionally, we are able to find no

of the brief.

brief failed to adequately present

Despite the extra

length,

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

special costs if we

was

to

file an

overly long

subsequently conclude that the

unnecessary and did not help.").

discourage the

brief, we

filing

may assess

extra length

"We believe it appropriate

of excessively

long

briefs in

court," id., and we believe it appropriate to discourage

___

this

parties

from attempting

to flaunt the

with improper line spacing.

against appellants.

page limits by

submitting briefs

Accordingly, we assess

double costs

-23-