
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-2331                    LOUIS GIULIANO & PATRICIA LETT, ETC., ET AL.,                               Plaintiffs - Appellants,                                          v.                             NATIONS TITLE, INC., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                        and Dowd, Jr.,* Senior District Judge.                                        _____________________                                _____________________               Stephen C. Maloney for appellants.               __________________               John H. Henn, with whom Stephen B. Deutsch and Foley, Hoag &               ____________            __________________     _____________          Eliot were on brief for appellees.          _____                                 ____________________                                   JANUARY 23, 1998                                 ____________________                                        ____________________          *  Of the Northern District of Ohio, sitting by designation.                    DOWD,  Senior District  Judge.   This  dispute concerns                    DOWD,  Senior District  Judge.                           ______________________          questions  of  title  to  a  number of  lots  in  a  real  estate          subdivision located  on Martha's  Vineyard.   Plaintiffs are  the          developers  of  the  subdivision,  and  Defendant  is  the  title          insurance company which,  under a predecessor name,  issued title          insurance policies on these lots.  As the result of many  adverse          claims against  these lots,  Defendant decided to  try to  obtain          title to all the lots, and then work  to preserve the subdivision          as an entity.  Toward  this end, Defendant and Plaintiffs entered          into  several written agreements concerning the transfer of title          from Plaintiffs to Defendant.   It is the enforceability of these          various agreements that is at the heart of this action.            Plaintiffs filed this action alleging that Defendant had breached          a  1990 agreement  to  develop the  property,  and had  otherwise          committed  fraud, negligence,  breach of  fiduciary  duty, and  a          violation  of  Mass.  Gen.  Laws  ch.  93A  for  unfair  business          practices.    Defendant  responded  with  a  counterclaim  for  a          declaratory  judgment that a  1991 agreement between  the parties          was  valid,  enforceable  and settled  all  disputes  between the          parties.     The  district  court  granted  summary  judgment  to          Defendant, holding that  the 1990 agreement was  an unenforceable          "agreement to  agree," and  that the 1991  agreement was  a valid          agreement and settled the parties' disputes.                      Plaintiffs  now appeal  the district  court's grant  of          summary  judgment to  Defendant.    Plaintiffs  also  appeal  the          district  court's  subsequent  denial  of  their proposed  second                                         -2-          amended complaint  on the  ground that  it was futile.   For  the          reasons set  out below, we  affirm the  district court's  holding          that based  on the  undisputed facts,  Defendant was entitled  to          judgment as a matter of law.                                      BACKGROUND                                      BACKGROUND                    Patricia Lett ("Lett") and  Louis Giuliano ("Giuliano")          (collectively "Plaintiffs") are  the developers of  the "Vineyard          Acres  II,"   a  148-unit   subdivision  located  in   Edgartown,          Massachusetts.   Lett  initially took  title to  the lots  in her          individual capacity, but in 1983 all of Lett's title was conveyed          to Lett  in her capacity  as "trustee" of the  "Vineyard Acres II          Realty Trust."1   Plaintiffs sold approximately 77 lots, and Lett          as trustee retained ownership of approximately 69  lots which she          then mortgaged  to Old  Colony Cooperative  Bank ("Old  Colony").          Nations Title Insurance-NY ("NTNY"),  under the predecessor  name          of "TRW," issued title  insurance policies totaling approximately          $11 million to the buyers of these lots.                     Subsequently,  NTNY's predecessor  learned of  numerous          adverse title claims  affecting the subdivision, and  was obliged          to  defend against these actions as a result of issuing the title          policies noted  above.   In 1987,  as a  result of  these adverse          claims,  NTNY's predecessor  brought suit  in  the United  States          District  Court for  the District  of  Massachusetts ("The  Fraud          Action") against Plaintiffs, alleging that Lett and Giuliano knew                                        ____________________          1   This Court  was unable to  determine from the  record whether          Lett was a beneficiary of the trust.                                         -3-          they  did not  have  good  title to  the  land, and  fraudulently          induced  NTNY's  predecessor  to  issue  title  policies  to  the          purchasers of the  land and the financial institutions which gave          them mortgages.   Title  U.S.A. Ins. Corp.  of New York  v. Lett,                            _____________________________________     ____          C.A. No. 87-701-WD (D. Mass.).                    NTNY's  predecessor then decided to try to obtain title          to all the lots, and then work to preserve the subdivision  as an          entity.   Toward this  end, NTNY, under  its predecessor  name of          TRW,  and Lett entered into an agreement on August 8, 1990 ("1990          Agreement").  This  1990 Agreement sketched out  an understanding          that had been reached by the parties with regard to TRW's plan to          acquire  the lots  that Old  Colony was  preparing  to sell  at a          foreclosure sale.  The preamble of the 1990 Agreement states that          "for good  and valuable  consideration as  described below,  [the          parties] enter into  this agreement  to work  cooperatively in  a          project involving the continuation  of the development, marketing          and sale  of the Vineyard  Acres II subdivision."   The agreement          goes on to state that:                      All Parties  agree  to use  their best  and                    reasonable efforts to acquire for the benefit                    of all Parties that portion of Vineyard Acres                    II encumbered by  a mortgage held by  Bank of                    New  England-Old  Colony on  which  said bank                    intends  to foreclose.  TRW agrees that if it                    acquires   said  portion   pursuant  to   the                    foreclosure sale, it  will hold said  portion                    for the benefit  of all Parties in  an effort                    to  work  cooperatively   to  accomplish  the                    Parties' objective of  developing, marketing,                    and   selling    the   Vineyard    Acres   II                    subdivision.                    . . . .                       All   Parties  agree   that  their   mutual                    objective is to  prepare and develop Vineyard                                         -4-                    Acres II lots for sale,  and to sell the same                    without  undue delay.   The Parties  agree to                    use their best and  reasonable efforts and to                    act in good faith to achieve their objective.                    The Parties  agree to divide the  proceeds of                    the   sale  of  Vineyard  Acres  II  lots  as                    follows:  a fixed amount to be agreed upon by                    all  Parties will be paid to TRW for expenses                    incurred  and proceeds  exceeding that  fixed                    amount paid to TRW will be paid to Lett.                    The  parties   signed   the   agreement,   and   NTNY's          predecessor  was the successful  bidder at the  foreclosure sale.          Lett claims on appeal that  because NTNY's predecessor agreed  to          hold the property  from the foreclosure sale "for  the benefit of          all Parties," she has an interest in that property.                    The parties continued negotiations to try to agree upon          the precise  terms of  an overall  agreement which  would include          settlement  of the  Fraud Action, which  was still  moving toward          trial.  On March  21, 1991, the parties signed  such an agreement          ("1991 Agreement").  This 1991  Agreement was written in the form          of a letter from NTNY, under its predecessor name of TRW, to Lett          and Giuliano.   The first paragraph states that it is "written to          memorialize and  confirm the  terms upon which  you and  TRW have          agreed to settle your disputes."   Under this agreement, Giuliano          and  Lett  (as  trustee)2 agreed  to  transfer  various specified          interests  within the  Vineyard Acres  II  subdivision to  NTNY's          predecessor in  exchange for  specified consideration,  including          payment to Lett and Giuliano of $350,000.  All pending litigation                                        ____________________          2  Lett contends  that she specifically crossed out  the parts of          the agreement referring to Lett "individually," thus intending to          retain any lots which she held as an individual.                                         -5-          between  the  parties, including  the  Fraud  Action, was  to  be          dismissed.   Additionally, NTNY's  predecessor agreed to  use its          best efforts  to develop,  market, and sell  the lots  within the          subdivision.   Further, the  agreement stated that  once the lots          were developed  and sold,  Lett and  Giuliano  would receive  all          proceeds  above NTNY's  predecessor's "sunk  costs."   The  items          which NTNY's predecessor could include and recover as these "sunk          costs" were specifically  enumerated, and covered all  aspects of          NTNY's predecessor's costs related to Vineyard Acres II.                     On  the day  the 1991  Agreement was  signed, Lett  and          Giuliano  delivered the required deeds to NTNY's predecessor, and          NTNY's  predecessor paid them $350,000 pursuant to the agreement.          The Fraud Action was dismissed shortly thereafter.                    In 1994, Giuliano applied for  a loan from NTNY.  NTNY,          still uncertain about  how the  court system  would evaluate  the          1990 agreement,  required Lett to  execute, as part of  this loan          transaction, an "Assignment, Agreement and Release" in which Lett          released  any  claims she  may  have had  against  "Nations Title          Insurance Company."   As  printed, the  document released  Lett's          claims  against "Nations  Title  Insurance Company,  of  Overland          Park,  Kansas."   NTNY has  always contended,  however,  that all          parties  intended this to  be NTNY (Nations  Title Insurance-NY),          which was the company making the 1994 loan and taking back a note          and mortgage.   In fact, there are the handwritten  words "of New          York  Inc.  and family"  added  after  the  printed name  of  the          insurance company on this 1994  deed, but Lett contends that when                                         -6-          she signed  the release, such words had not  been added.  In this          document, Lett  also  assigned  "any  and all  right,  title  and          interest that she has or may have had in any and all lands in the          Town   of   Edgartown,   County   of   Dukes,   Commonwealth   of          Massachusetts, to said Louis  Giuliano."  Lett contends this  was          done so that it  would be easier for Giuliano alone  to work with          NTNY on developing the property.  On December 19, 1994, following          the execution of  this agreement, NTNY loaned  Giuliano $165,000,          taking back a  note and mortgage for unrelated  property owned by          Giuliano located in Rhode Island.                    Plaintiffs subsequently brought this action for,  among          other things, fraud and violation of Mass. Gen. Laws ("G.L.") ch.          93A, for unlawful business practices.   The heart of  Plaintiffs'          argument  was   their  claim  that  the  1990  agreement  was  an          enforceable  agreement  which  gave   Lett,  in  her   individual          capacity,  an  interest  in  the  Vineyard  II  property.    NTNY          counterclaimed  and moved for summary judgment, claiming that the          1990 agreement  was an  unenforceable "agreement  to agree,"  and          that the  1991 agreement settled  all claims between  the parties          because  Lett transferred  all  title in  the property  to NTNY's          predecessor.  Plaintiffs, however, contend that while in the 1991          agreement  Lett transferred the  interest she held  as a trustee,          she  did not  transfer the  property  she held  as an  individual          through the 1990 agreement.   Plaintiffs also claimed that due to          the language of the 1994 agreement, Lett released only her claims          against "Nations Title Insurance Company,"  which is not the name                                         -7-          of any  party to this lawsuit, and that  Lett did not release her          claims  against NTNY.   Further,  Lett claims  that in  this 1994          documrty to Giuliano,  which was her  individual interest in  the          property  acquired from the 1990 agreement, thus leaving Giuliano          now free to pursue claims against NTNY.                    The district  court granted NTNY's  motion for  summary          judgment.     The  court  held   that  the  1990  letter   is  an          unenforceable "agreement to  agree."  The court then  held, as an          alternative  ruling,  that  Lett  had  given  up  any  rights she          obtained under that  1990 agreement by signing  the 1994 release.          The court then declared the 1991 settlement agreement to be valid          and enforceable.   Finally,  the court  gave Plaintiffs leave  to          file  an amended complaint  setting forth their  fraud claim with          particularity.   The court also gave Plaintiffs leave to reassert          their  93A claim  if they  were able  to meet  the jurisdictional          prerequisites of such claim.                    Following this  grant of  summary judgment,  Plaintiffs          submitted  a Proposed  Second Amended  Complaint.   The  district          court denied Plaintiffs' motion to  amend as futile.  This appeal          followed.                               CONTRACT INTERPRETATION                               CONTRACT INTERPRETATION                    This  case initially requires the analysis of the three          agreements  involved in  this matter,  and  the determination  of          their enforceability:  (1) the 1990 agreement between NTNY (under          its predecessor name  of TRW) and Lett, which  provides the basis          for Plaintiffs' claim that Lett  held an interest in the property                                         -8-          as an individual, and which NTNY claims is unenforceable; (2) the          1991  agreement between NTNY (under its  predecessor name of TRW)          and Plaintiffs, which NTNY claims settles all claims between  the          parties, and which Plaintiffs claim is unenforceable; and (3) the          1994 assignment and  release, which Plaintiffs claim  assigned to          Giuliano  all of  Lett's  rights  and title  with  regard to  the          property she claimed as an individual through the 1990 agreement.          1.  Standard of Review          1.  Standard of Review                    We  review  the  district   court's  grant  of  summary          judgment "de novo," drawing reasonable inferences in favor of the          nonmovant.  Garita Hotel Ltd. Partnership v. Ponce  Federal Bank,                      _____________________________    ___________________          122 F.3d 88 (1st Cir. 1997).   An inference is "reasonable" on de          novo review  only if it  can be  drawn from the  evidence without          resort   to  speculation.    Hidalgo  v.  Overseas  Condado  Ins.                                       _______      _______________________          Agencies,  Inc., 120  F.3d 328  (1st  Cir. 1997).   The  district          _______________          court's  grant of  summary  judgment  is  appropriate  when  "the          pleadings,   depositions,   answers   to   interrogatories,   and          admissions on  file, together with affidavits, if  any, show that          there is no  genuine issue as to  any material fact and  that the          moving party  is entitled  to a  judgment  as a  matter of  law."          Hidalgo, supra, at 332.  An  appellate panel is not restricted to          _______  _____          the district court's reasoning but can affirm  a summary judgment          on  any independently  sufficient ground."    Mesnick v.  General                                                        _______     _______          Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).            _________          2.  Enforceability of the 1990 Agreement          2.  Enforceability of the 1990 Agreement                                         -9-                    Under  Massachusetts  law,  an "agreement  to  reach an          agreement  is a contradiction in terms  and imposes no obligation          on the parties thereto."  Rosenfield v. U.S. Trust Co., 290 Mass.                                    __________    ______________          210, 195 N.E. 323 (1935).  "A purported contract which is no more          than an agreement to  agree in the future on essential  terms, or          one which does not adequately specify essential terms, ordinarily          will  be unenforceable."   Air Technology Corp.  v. General Elec.                                     ____________________     _____________          Co., 347 Mass. 613, 626, 199 N.E.2d 538, 548 (1964).          ___                    In determining whether an agreement is an unenforceable          "agreement to  agree" or an  enforceable contract, the  key issue          for  the court is "whether the  parties intended to be bound when          they  signed  the  contract  and,  if  so,  whether  the  initial          agreement included  all of  the essential  terms."   Rand-Whitney                                                               ____________          Packaging Corp. v.  Robertson Group, Inc., 651 F.  Supp. 520, 535          _______________     _____________________          (D. Mass. 1986).   Accordingly, a letter of intent may be binding          or nonbinding, depending  on the intentions of the  parties.  Id.                                                                        ___          Further, the fact  that a further agreement  is contemplated does          not defeat  a finding that  the original agreement was  a binding          contract, so long as the  essential terms are agreed upon at  the          start.    Id.   The  essential  terms  must  be set  forth  "with                    ___          sufficient  definiteness   and   clarity   that   a   court,   by          interpretation  with  the  aid   of  existing  and   contemplated          circumstances, may enforce it."   George W. Wilcox, Inc. v. Shell                                            ______________________    _____          Eastern Petroleum Products, 283 Mass. 383, 388, 186 N.E. 562, 564          __________________________          (1933).                                         -10-                    A  review of  the 1990  Agreement in  the instant  case          reveals that the  district court was correct in  its holding that          this agreement was  an unenforceable "agreement  to agree."   The          agreement indicates  no intention by  the parties to be  bound to          particular terms;  rather, the letter commits the parties only to          working "cooperatively in a project involving the continuation of          the  development, marketing  and sale  of  the Vineyard  Acres II          subdivision."  The language used includes terms such as "best and          reasonable  efforts" and  "reasonable  amounts,"  and other  such          generalities,  but contains  no  specific  figures, deadlines  or          actions to  be taken by  either party.   This lack of  duties and          responsibilities assigned  to  either party  makes  this  "Letter          Agreement" unenforceable because it gives the court no guidelines          which  it could  apply to enforce  the contract.   See  George W.                                                             ___  _________          Wilcox, supra (valid contract  must set out essential  terms with          ______  _____          sufficient  definiteness and clarity  so court can  interpret and          enforce it).  Further, the parties' failure to include either the          exact amount NTNY would retain from the lot sale proceeds, or the          formula for its calculation renders this contract invalid.3                    Plaintiffs  argue  that  under  the  case  of  Hastings                                                                   ________          Associates, Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass. App. Ct.          ________________    __________________________                                        ____________________          3  The 1990 Agreement provides:                      The Parties agree  to divide the proceeds                      of  the sale of Vineyard Acres II lots as                      follows:   a fixed  amount  to be  agreed                      upon by all  Parties will be paid  to TRW                      for   expenses   incurred   and  proceeds                      exceeding that  fixed amount paid  to TRW                      will be paid to Lett.                                         -11-          162, 675 N.E.2d 403 (1997), the fact that the parties agreed that          NTNY's  predecessor would subsequently receive "a fixed amount to          be  agreed  upon"  is  sufficiently  definite  to  constitute  an          enforceable contract.  However, an analysis of  the Hastings case                                                              ________          shows  that it  is  easily  distinguished,  and  that  the  vague          discussion of the payment amount in the 1990 Agreement supports a          finding of indefiniteness.                    In  Hastings, a Massachusetts appeals court held that a                        ________          lease renewal  provision was  enforceable  where it  left open  a          payment term  but provided that  if the parties could  not agree,          then  they were to select a  third party to determine the amount.          The appeals court there held that this provision was enforceable,          and not  merely  an "agreement  to  agree" because  the  language          clearly demonstrated that  the only thing that was  left open was          the identity of a third party to solve any potential dispute that          should arise.  Id. at 409-10.  This did not render  the agreement                         ___          indefinite due  to the parties'  otherwise clear intention  to be          bound, and the "commonly employed practices . . . for selecting a          neutral third party to determine value."  Id. at 410.                                                     ___                    We find Plaintiffs' reliance on Hastings in this matter                                                    ________          misplaced.    While the  contract  in  Hastings  provided  for  a                                                 ________          resolution in case the parties  themselves could not agree on the          formula  to use,  the 1990  Agreement involved  here did  no such          thing.  Rather, the 1990 Agreement merely stated that the parties          would discuss  and agree upon the formula at  a later date.  This          vague language gives  a court no way to interpret and enforce the                                         -12-          intent of  the parties,  and thus  is an  unenforceable contract.          See Saxon Theatre  Corp. v. Sage, 347 Mass. 662,  666, 200 N.E.2d          ___ ____________________    ____          244 (1964)  (finding unenforceable  a letter  agreement providing          that the "basic plans and specifications" of  a proposed building          were "to be mutually agreed upon").                    In light of  the fact that this agreement  has left out          an essential  term, and  gives the  court no  way to enforce  the          rights  and duties of  the parties, we affirm  the holding of the          district  court that  the  1990  Agreement  is  an  unenforceable          "agreement to agree."            3.  The 1994 Release          3.  The 1994 Release                    Plaintiffs  claim that by  this document, Lett assigned          to Giuliano all the interest in the Vineyard II property that she          held as an  individual as a result  of the 1990 Agreement.   This          1994 document also contained  a release of Lett's  claims against          "Nations Title Insurance Company."  Plaintiffs claim this did not          release  Lett's  claims  against Defendant  NTNY  (Nations  Title          Insurance-New York) and so Giuliano is still free to pursue those          claims as Lett's assignee.  NTNY, on the  other hand, claims that          it was the  clear intent of the  parties for Lett to  release her          claims  against  NTNY in  this  agreement, and  that  despite any          assertion  to  the  contrary,  the  name  used  in  the  document          unambiguously refers to NTNY.                    While  the district  court made  an alternative  ruling          that the  1994 release was valid, we do  not reach this issue due          to our above holding that  the 1990 Agreement is an unenforceable                                         -13-          agreement  to  agree.     The  only  interest   Lett  claims  she          transferred  to Giuliano in this 1994  agreement was the interest          she claims from  the 1990 Agreement.   Because we have  held that          this  1990  Agreement  is unenforceable,  Lett  cannot  claim any          interest through it.4            4.  The 1991 Agreement          4.  The 1991 Agreement                    Plaintiffs argue that  there are three  inferences that          must be  made in  their favor which  preclude affirmation  of the          grant of summary judgment on the issue of the 1991 Agreement:                    (a)  the 1991  Agreement  was  not signed  by                    Christopher  Likens,  the Vice  President  of                    NTNY's  predecessor, on  or  about March  21,                    1991;  and   he  was  unable  to  produce  an                    original or  copy  with his  signature on  it                    until after the lawsuit commenced;                    (b) Lett signed the  1991 Agreement solely as                    trustee   because   she  intended   in   that                    transaction  to convey  only her  interest as                    trustee in some  mortgages on 32 lots  on the                    Property,  and  not  the  interests  she  had                    acquired  personally in  the lots  covered by                    the 1990 Agreement; and                    (c)  Likens  told  Giuliano that  Likens  had                    never   signed   the  1991   Agreement,   had                    destroyed it,  and  never  considered  it  an                    operative agreement.          We hold that even when  taking the inferences as true, Plaintiffs          still  fail to  raise any  genuine issues  of material  fact that          would preclude summary judgment.                                         ____________________          4  While there  may have been an issue  of fact as to whether  an          ambiguity  existed concerning the party which was released by the          1994 document,  it is not  relevant to this legal  analysis since          our holding about the 1990 Agreement extinguishes any interest or          claim that Lett released in this document.                                         -14-                                          14                    The first  assertion, that  Likens failed  to sign  the          agreement on behalf of NTNY's  predecessor, is irrelevant.  To be          enforceable, a contract  need only contain  the signature of  the          party against whom it is to be enforced.  Forman v.  Gadouas, 247                                                    ______     _______          Mass.  207, 213  (1924) (contract  need  not be  signed by  party          seeking  enforcement).   Plaintiffs  do  not  contest  that  they          themselves  signed the 1991 agreement.  Therefore, even if Likens          never signed the 1991 Agreement  on behalf of NTNY's predecessor,          it is  still valid and enforceable against  Plaintiffs since they          do not contest that they signed it.                    The second assertion,  that Plaintiff  Lett signed  the          1991 Agreement  only as  a trustee, creates  no genuine  issue of          material fact.  Even assuming that this is true, and that  by the          1991 Agreement Lett retained the interest in the land she held in          her individual capacity,  our earlier ruling concerning  the 1990          Agreement  makes this  point moot.  The  only interest  that Lett          claims to hold  as an individual is that which she claims to have          received through the  1990 Agreement.   However, because we  have          held that the 1990 Agreement  is unenforceable, Lett can claim no          interest  as an individual.   Therefore, at the  time of the 1991          Agreement, the only interest Lett held was as a trustee, which is          the  capacity  in  which  she  signed  the  1991  Agreement,  and          transferred all title to NTNY's predecessor.                    Plaintiffs' third assertion, that  Likens told Giuliano          he never signed  the 1991 agreement, had destroyed  it, and never          considered it an  operative agreement, is also  immaterial to our                                         -15-                                          15          review.  Even if taken as true, these assertions do not show that          the  contract was improperly  executed or was  otherwise invalid.          Furthermore, after signing,  substantial performance took  place:          Lett  and Giuliano  transferred deeds  to  NTNY's predecessor  as          required   under  the  contract,   NTNY's  predecessor  paid  the          $350,000, and the pending Fraud Action was dismissed.  I        n          conclusion,  Plaintiffs have presented  no evidence of  a genuine          issue of  material fact supporting  their position that  the 1991          agreement was invalid.  Therefore, we affirm the district  court,          and hold that the 1991 agreement was valid.                        THE PROPOSED SECOND AMENDED COMPLAINT                        THE PROPOSED SECOND AMENDED COMPLAINT                    Plaintiffs  next argue that the district court erred in          denying  their motion  to  file  their  proposed  second  amended          complaint as futile.   Plaintiffs argue that their amended  fraud          count meets the  particularity requirements  of Fed.  R. Civ.  P.          9(b),  and that  their other  amendments  state viable  claims as          well.5                                        ____________________          5  The proposed amendments are as follows:                               The Amended Fraud Claim                    (1)   "Defendants  falsely and  fraudulently,                    and  with intent  to defraud  the Plaintiffs,                    represented to the Plaintiffs that they would                    hold  the  subject  property  in  trust   and                    develop  it for  all parties  [sic] benefit."                    Proposed Second Amended Complaint,   95 (A at                    398).                    (2)       "The    defendants   falsely    and                    fraudulently, and with intent to defraud  the                    Plaintiffs,  represented  to  the  Plaintiffs                    that  the  March 21, 1991  Agreement  related                    solely to the 39 Bay  Court Lots and that the                    Agreement related to Patricia Lett as Trustee                                         -16-                                          16          1.  Standard of Review          1.  Standard of Review                    The  1st Circuit holds  that although motions  to amend          are liberally granted, a court may deny them if it believes that,          as a matter of law, amendment would be futile.  Demars v. General                                                          ______    _______          Dynamics Corp., 779 F.2d 95,  99 (1st Cir. 1985) (quoting Tiernan          ______________                                            _______          v.  Blyth, Eastman, Dillon & Co., 719 F.2d 1, 4 (1st Cir. 1983).             _____________________________          2.  The Amended Fraud Claim           2.  The Amended Fraud Claim                     Under Fed.  R. Civ. P.  9(b), when alleging  fraud, the          complaint must set forth "specific facts that make it  reasonable          to believe that defendant[s] knew that a statement was materially          false or misleading."  Serabian v. Amoskeag Bank Shares, Inc., 24                                 ________    __________________________                                        ____________________                    and  further  that  the  Agreement  had  been                    destroyed."      Proposed    Second   Amended                    Complaint,  99 (A at 399).                    (3)       "The    defendants   falsely    and                    fraudulently, and with intent  to defraud the                    Plaintiffs,  represented  to  the  Plaintiffs                    that they  would loan 1.6 million  dollars to                    plaintiffs in order to induce plaintiffs into                    pledging the Vineyard  property as collateral                    on  a loan and by further inducing plaintiffs                    to execute the 1994 Assignment, Agreement and                    Release."  Proposed Second Amended Complaint,                     103 (A at 399-400).                           The New Breach of Contract Claim                    (1)     "Plaintiffs  fully   performed  their                    obligations  under the terms of the March 21,                    1991  Agreement,  but   the  Defendants  have                    failed  to   perform  its   obligation  under                    paragraphs  1, 3, 6, and 7 of said agreement,                    thereby constituting  a breach  of contract."                    (A at 400,  108).               The New Claim for Violation of G.L. ch. 93A    9 and 11                    (1)  "The above described  acts and practices                    constitute a  violation of  the Massachusetts                    Consumer Protection  Statute, M.G.L.  Chapter                    93A,  9 and  11."  (A at 401,  111).                                         -17-                                          17          F.3d  357, 361  (1st  Cir. 1994)  (quoting  Greenstone v.  Cambex                                                      __________     ______          Corp., 975 F.2d  22, 25 (1st Cir. 1992)).  The rule requires that          _____          the  particular "'times, dates, places  or other details of [the]          alleged  fraudulent  involvement'"  of  the  actors  be  alleged.          Serabian, supra, at 361  (quoting In re GlenFed, Inc.  Securities          ________  _____                   _______________________________          Litigation, 11  F.3d 843, 847-48  (9th Cir. 1993), reh'g  en banc          __________                                         ______________          granted, 11 F.3d 843 (9th Cir. 1994)).          _______                     The amended  fraud claim in  this case failed  to meet          the  requirement  of Rule  9(b)  because  in  none of  the  three          allegations of  fraudulent statements by  Defendants' predecessor          did Plaintiffs identify specific conversations,  the locations of          the conversations,  or the  details of  the conversations.   This          denial is  additionally warranted in  light of the fact  that the          district court granted Plaintiffs leave to amend the fraud claim,          specifically  directing Plaintiffs  that the  amended  claim must          meet the specificity requirements of 9(b).           3.  The Amended Breach of Contract Claim          3.  The Amended Breach of Contract Claim                    We affirm the  district court's denial of  this amended          claim on the grounds that  this amended allegation fails to state          a  legal claim  for relief.   In  this amended  claim, Plaintiffs          allege that Defendant NTNY, under its predecessor name,  breached          the enumerated paragraphs of the  1991 Agreement to use its "best          efforts"  in securing  the  release  of  adverse  claims  to  the          property  and developing  the property.    However, this  amended          claim alleges no  instances where Defendant's predecessor  failed          to use its  "best efforts."  Thus,  the claim, as  amended, would                                         -18-                                          18          indeed  be futile,  and the  district court  properly denied  it.          Further, we note that the  district court did not give Plaintiffs          leave  to amend  this claim  of their  complaint.   Therefore, we          affirm the denial of this untimely amendment.          4.  The 93A Claim          4.  The 93A Claim                    The district  court granted Plaintiffs  leave to  amend          their  complaint with respect  to this claim  if Plaintiffs could          prove that  a demand letter  was sent.   This demand letter  is a          requirement to bring a  93A   9 claim.  See G.L.  ch. 93A   9(3);                                                  ___          Slaney  v.  Westwood  Auto,  Inc., 366  Mass.  688,  704  (1975);          ______      _____________________          Baldassari  v. Public  Finance  Trust, 369  Mass.  33, 41  (1975)          __________     ______________________          (service  of demand  letter must  be  alleged and  proved).   The          amended complaint  fails to allege  that such a letter  was sent,          all prerequisites to  a 93A   11 claim.  This claim requires that          the  alleged unfair  or deceptive  acts  occurred "primarily  and          substantially"  within Massachusetts.   See  G.L.  ch. 93A    11.                                                  ___          Although  the Proposed  Second  Amended  Complaint provides  some          details of additional conversations involving NTNY's predecessor,          these are  alleged  to have  taken  place in  New Jersey,  or  in          telephone calls with  Likens of NTNY's predecessor,  whose office          was in  Kansas.    Thus, this  supplementation  does  nothing  to          counter Defendant's prior showing that the acts at issue occurred          primarily  and   substantially   outside   Massachusetts.      It          additionally  does  nothing  to show  that  the  events of  which          Plaintiffs complain  occurred primarily and  substantially within                                         -19-                                          19          Massachusetts.   Therefore, this  amended claim would  be futile,          and the district court's denial of it was proper.                                      CONCLUSION                                      CONCLUSION                    For the reasons set forth above, the district court did          not err in  its grant of summary judgment on the grounds that (1)          the 1990 Agreement was an unenforceable "agreement to agree," and          (2)  the 1991  agreement  was  a valid  contract.   Further,  the          district court's  denial of  Plaintiffs' proposed second  amended          complaint as futile was proper  given the fact that the complaint          failed to meet  the specificity requirements required  under 9(b)          and it otherwise failed to state  a legal claim for relief.   The          decision of the district court is AFFIRMED.                                            AFFIRMED                                         -20-                                          20
