
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                                         -2-          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.                                         -3-                    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                                         -4-          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                                         -5-          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                                         -7-          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                                         -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  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.                                          -10-          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.                                         -11-          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                                         -12-          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                                         -13-          "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                                         -14-          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.                                         -17-                    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.                                         -18-          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.                                         -19-                    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.                                         -20-          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.                                         -21-          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                                         -22-          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.                                         -23-
