Professional Documents
Culture Documents
No. 96-1337
Plaintiffs - Appellants,
v.
Defendants - Appellees.
____________________
____________________
Before
_____________________
____________________
brief
for
appellees
Jacobson and
________
Israel
________________________
and Miriam
Laudon.
William A.
___________
brief for
appellee
David Thibodeau.
____________________
TORRUELLA,
TORRUELLA,
Chief
Chief
Judge.
Judge.
Plaintiffs-appellants, H.P.
____________
Leasing,
Inc., and
Patrick J.
Doyle ("Doyle"),
H.P. Leasing's
Israel
Laudon
Department;
("Laudon"), Vice
Miriam
Laudon,
President
Laudon's
of Hasbro's
wife;
David
Traffic
Thibodeau,
Hasbro;
Transport Services
and Michael
Oliva d/b/a
("Oliva").
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
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
I through VI as to
Doyle v. Hasbro,
_____
______
884 F.
4, 1995,
Laudon
Supp. 35, 42
(D. Mass.
-2-
Thibodeau.
1995).
Israel and
In
an
Miriam
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
agreed,
on
Hasbro's
behalf,
to
retain
the
plaintiffs'
services
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.
instructed by
relationship,
Laudon that
continuance of
Laudon
informed
In
reliance
tractors.
on these
receipt of
the
Early in
business
the
would
representations, plaintiffs
Doyle
commissions was
the contracts.
plaintiffs that
Doyle
as a business
was
ten
purchased 28
____________________
Doyle
_____
v. Hasbro,
______
dismissed Count V as
884 F.
Supp. 35,
42-43 (D.
Mass. 1995),
liability is
the
conduct of
its
the remaining
defendants."
Id. at 42-43.
___
In
against Israel
and Miriam
Laudon, the
remaining defendants,
Plaintiffs-appellants
have appealed
-3-
only
a subset
of
the
business
sent
to H.P.
Leasing.
year,
but
from 1990
Between
1982 and
1985, H.P.
to
1992,
these
payments
averaged
only
$45,000.
Over the
forced
Doyle
employees,
to pay
yearly Christmas
parties
to
for Laudon
the Holocaust
be
for Hasbro
Memorial.
Doyle
and to
and his
For
Laudon also
$30,000
for
1980 to 1992,
taken out
to
dinner.
These
pledge
wife were
the period.
demands were
accompanied
by
comments
and you
to live in."
conduct.
In
Code.
minimum
the Bankruptcy
of $50,000
choice,
and,
bankruptcy.
on
a week
March
in revenue.
12,
1992,
Doyle
H.P.
felt he
Leasing
with a
had no
filed
for
by
Laudon.
to Laudon.
commission payments
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
In
twenty to
dollars per
Hasbro.
thirty thousand
who directed
II.
II.
We review the
STANDARD OF REVIEW
STANDARD OF REVIEW
motion to
dismiss de novo.
_______
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
entirely
Id.
___
The
tiger."
Gooley v.
______
514 (1st
In
if the
requirement, however,
Cir. 1988).
"not
under
pleading
is
v.
indulg[e]
favor."
Aulson
______
toothless
claim] may be
order to survive a
motion to dismiss,
recovery."
the
Id. at 515.
___
plaintiffs'
assertions,
favor,
this
court
unsupportable
need
conclusions,
not
accept
"bald
periphrastic
Aulson, 83 F.3d at 3.
______
those
allegations contained in
-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
complaint] can
reasonably admit
of
a claim."
the
district
appeal.").
arguments,
13,
22 (1st
court cannot
be surfaced
and
950 F.2d
claims that
were
for
Cir.
squarely in
the first
time on
not included
in
the amended
complaint.
III.
III.
We begin by
under 18 U.S.C.
considering plaintiffs-appellants'
It
shall
employed
be
by
unlawful
or
for
which
commerce,
any
associated
conduct
person
with
any
the activities
affect, interstate
to
claims
or
or foreign
participate,
enterprise's
pattern
of
affairs
racketeering
through
activity
a
or
18 U.S.C.
unlawful
1962(c).
for
any person
to violate
any
of the
For
Id.
___
claim to survive
shall be
provisions of
1962(d).
a motion to
dismiss,
an
enterprise
activity."
(3)
through
Sedima, S.P.R.L. v.
_________________
pattern
(4)
Imrex Co.,
_________
of
racketeering
473 U.S.
479, 496
-6-
Cir. 1990).
"In
913
only
been
injured
in
his
business
unlawful
This court
has held
enterprise
itself
or
property
by
the
conduct
cannot
also
be
1962(c), "the
the
person
the
at 6; see also Odishelidze v. Aetna Life & Casualty Co., 853 F.2d
________ ___________
_________________________
cases).
In
allege
the
order
to succeed,
existence
of
therefore,
"person"
1986) (collecting
the complaint
distinct
from
must
the
"enterprise."
is
sufficient to identify a
amended
complaint
is
reasonably
"person" requirement,
stating that
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
all defendants:
Hasbro, Hassenfeld,
Israel
Later
in the same paragraph, the complaint once again alleges that "all
___
Act."
allege
Id. (emphasis
___
the
section
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
1962(c)
mention any
claim.
defendant by
the violation of
Indeed,
name in
section 1962(c) is
alleged.
is a
purposes, the
amended
claim.
an enterprise, id. at
___
may be that a
that
"[d]efendant, Hasbro,
the complaint
Act."
a manner
Id. at
___
corporation in
RICO
It
take support,
for an
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
of section
-8-
1962(c).
See Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44-45 (1st
___ _______
_______________
that
own
company, H.P.
Leasing, is
sufficiently
plaintiffs
holding
identified
do not
the enterprise.
We
decline to
plaintiffs
Hasbro
even
plaintiffs to
complaint to
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
Unfortunately,
no reasonable
reading
of the
amended
is
the enterprise.
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
plaintiffs' present
Cf.
___
RICO
Leasing
Pat Doyle.").
court.
the
by
Amended
enterprise,
the
racketeering
injury to plaintiffs
H.P. Leasing
that there
position was
is
no indication
ever advanced in
that
the district
22-23 (1st Cir. 1991), cert. denied, 504 U.S. 910 (1992).
____________
The
complaint's
failure to
identify
any enterprise,
But
-9-
point,
that
the
claim
different respect.
must
47.
remarkably
relationship between
Here, if there
weak
in
quite
"establish a causal
predicates
appears
the
had been
the racketeering
no bribes, we
have no
reason to
at
all.
to
meet the
1962(c)
bare requirements
and (d).
of a
Because we find
RICO claim
under sections
count must be
to state a claim, we
RICO claim.3
For the
foregoing reasons,
the dismissal of
the
IV.
IV.
A.
A.
Count
supervision"
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
normally used in
a motor vehicle to
See,
___
an
e.g., Mitchell v.
____ ________
____________________
For
example,
the question
of
whether Schofield
_________
v.
First
_____
applies to
the facts
decided.
-10-
of
this case
need not
be
Ct.
1980).
may
(Mass. App.
A "supplier
an incompetent person."
Kyte v.
____
Plaintiffs-appellants
in
this circuit,
to facts
that resemble
those at bar.4
The question
should
expand
entrustment,
the
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
While it may
negligent
its employees is
negligent entrustment
dangerous
tort
adult entrusting a
for
the
different
negligent
of
to adopt.
reach
is whether we
keep a
Id. at 1036.
___
similarities between
the
____________________
in support
-11-
current application
of the
plaintiffs-appellants, we
more striking.
doctrine
and the
one advocated
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
our supplemental
extend [state]
doctrine in
should extend
is one
new
of the
Indeed,
this court
offer no convincing
jurisdiction, we are
reluctant to
boundaries."
Andrade
_______
(citations
extension of
omitted).
Without
powerful
argument
for
the
For
the
above reasons,
we
affirm
______
the dismissal
of
We now turn
to the negligent
supervision claim.
The
any
case
law
suggesting
that
the
We
fails
appeal
on other
is
grounds.
that "had
doctrine
of
The plaintiffs-appellants'
plaintiffs
been
negligent
dealing with
theory on
competent,
-12-
to litigate."
contradicted
by the
amended complaint,
which alleges
that the
believed
the
business."
alleged
payments
"would
insure a
consistent
volume
of
absence of kickbacks.
business in the
the business
only because it
earned
it
agreed to the
therefore,
cannot claim
damages
Plaintiffs, however,
when
make no
the
scheme
claims to
comes
to
an
end.
proper
better
no evidence that
have
position.
received any
kickback
scheme.
There is
business from
It
is not
stating
illegal
kickbacks
Hasbro in
sufficient
the absence
for the
have disappeared.
alleged, plaintiffs-appellants
Because
of the
purposes
of
no damages
are
a claim for
negligent supervision.
For the
the dismissal of
Count VI.
B.
B.
Count V of
defendants
of
-13-
"fraud, deceit
54.
and misrepresentations."
Amended
Complaint at
(1) that
the
statement was
knowingly false;
(2)
to
material
that
the
deceive;
to the
(3)
that
the
statement was
plaintiffs' decision
plaintiffs
reasonably
. .
relied
.; (4)
on
the
Turner v. Johnson & Johnson, 809 F.2d 90, 95 (1st Cir. 1986); see
______
_________________
___
also Danca v.
____ _____
1129, 1133
(Mass.
1982).
With
respect to Hassenfeld,
Amended
son,
Complaint
37.
Hassenfeld also
"would be
Hasbro."
Amended Complaint
would continue to do
41.
wrong done to
plaintiffs,"
Several of
amended complaint
37,
or to "make
41.
the required
elements of common
the promises
law fraud
business with
were an "effort
In fact, the
to right
Second,
there is no
-14-
allegation that
the
Finally, neither
The district
failed to argue
for the
claims of fraud
reversal of these
dismissals on
their
There remains
claimed
that defendants
Hassenfeld, Thibodeau,
and Oliva
were
part of a
larger conspiracy to
conclusory
allegations
insufficient
that
41.
the
Civ. P.
any pleading,
amended
complaint
9(b)'s strict
Appellants respond
his claim,
evidentiary
nor
matters."
requirement
does it
require
are
bases
of
throughout
under Fed. R.
a claim
him to
purpose of
not require
upon which he
plead
detailed
There is a well-developed
the
application of
Rule
9(b) in
this
circuit.5
See,
___
e.g.,
____
____________________
circumstances constituting
mistake
shall
particularity.
be
fraud or
stated
Malice,
with
intent,
-15-
357, 361
(1st
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
_______________
____________
that
the
case law
interpreting and
cases.
less
applying
Rule 9
we held
in cases
to RICO
than
cases."
we have
required
in
general fraud
and
securities
Rule
9 imposes a
heightened pleading
requirement for
harmed
suits,"
by
meritless
claims
uncover relevant
of fraud,
to
filing of suits
discourage
"strike
See McGuinty v.
___ ________
(1st Cir.
1980).
of authority is that
place, and
content of an
be
inferred."
corruption
Id. at
___
or conspiracy,
referrals to plans
____________________
the time,
228.
but not
"[M]ere
averments to
allegations of
conditions of
too conclusional to
fraud,
mind, or
satisfy
-16-
the
particularity requirement,
accusations
are repeated."
no
Hayduk
______
matter how
many times
v. Lanna, 775
_____
such
We agree
of conspiracy included in
of Rule 9(b).
The
complaint simply
others'
conspired
conduct.
to use
These defendants
H.P.
Leasing for
own personal
It is not certain
the
what
conspiracy entailed
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,"
the
Amended Complaint,
"defendants
Amended
worked
Complaint
28;
The
amended
complaint includes
no
representation as required
by McGuinty.
In addition, no
claim
________
can survive
has
of the other
-17-
the
requirements
of Rule
9,
we
have failed to
affirm the
______
district
meet
court's
C.
C.
(1)
had an
agreement
willing
prevented
damaged.
and able
to perform;
them from
(3)
performing;
that defendant's
and (4)
breach has
that plaintiffs
were
291
1994).
breach of
40.
Appellants' Brief at
facts
thereof."
Pollock v. New England Tel. & Tel. Co., 194 N.E. 133,
_______
___________________________
of the
formed.
terms of a
Nor
were imposed
the
There is no presentation
or even when
it was
____________________
It
The district
court states
that "Count
V must
that Oliva
committed
has
fraud,
and,
be dismissed
Doyle, 884
_____
however, allege
therefore,
he
is
not
-18-
does
contract
or
performing,
that the
were ready to
defendants'
breach
prevented them
from
the
breach.
Conclusory
statements
that
"Hasbro
and
its
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
and that
it was breached
question of
Nor do
cannot
in bad faith.
be personally liable
for the
we address the
disclosed principal
principal's conduct.
See
___
For the
the dismissal of
-19-
D.
D.
Intentional
Infliction of
Emotional Distress
Intentional
Infliction of
Emotional Distress
__________________________________________________
(Count IV)
(Count IV)
__________
Count IV of
intentional
infliction
in
355
of
The
emotional
of emotional
in Agis v.
____
against Laudon,
distress
of
alleges a claim
intended to
have known
(2) that
conduct;
was 'beyond
civilized
the cause of the plaintiff's distress; and (4) that the emotional
distress
'that no
Id. at 318-19
___
claim
(citations omitted).
of intentional
infliction of
be expected to
The standard
endure it.'"
for making
emotional distress
is very
manners
and mere
Recovery on such a
hurt
feelings are
involved."
Id.
___
at
319.
the defendant
even criminal, or
that
been characterized
by 'malice' or
a degree
of
-20-
82
(Mass. 1986).
truth of
We agree
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
law amount
all possible
intolerable
in
attempted to
civilized
of a
"Nor
nature
Accordingly, we
affirm the
______
dismissal of the
to
bounds of
the
Id.
___
claim of
E.
E.
Interference
with
Advantageous
Business
Interference
with
Advantageous
Business
__________________________________________________
Relationships (Count III)
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
defendant's
and
plaintiffs' advantageous
Laudon, Oliva,
advantageous relationship
relationship or
the
with
of
with
of economic
such
it
plaintiff's
"(1) a
loss
of
(3)
improper motive
advantage
the
or
directly
____________________
benefit; (2)
relationship;
through
business
33, 36
(1st
-21-
Cir.
1992) (citing
Geltman, 511
_______
Implicit
in
the
interference in a business
be lawful.
above requirements
for
intentional
402 N.E.2d
1069, 1072
Plaintiffs-appellants argue
that consisted
business.
of allegedly
unlawful kickbacks in
exchange for
Accordingly, we affirm
______
dismissal
V. CONCLUSION
V. CONCLUSION
For
the
reasons
discussed
herein,
we
affirm
______
the
appellants:
the
RICO
count
against all
against all
defendants, Counts
III
and IV
defendants,
Count
against Laudon
and
an
overly
long brief.
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.
the
of the brief.
length,
See In re
___ _____
grant
permission to
special costs if we
was
to
file an
overly long
discourage the
brief, we
filing
may assess
extra length
of excessively
long
briefs in
this
parties
from attempting
to flaunt the
against appellants.
page limits by
submitting briefs
Accordingly, we assess
double costs
-23-