               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 03-1572

                        FREDERICK H. MOVITZ,

                        Plaintiff, Appellant,

                                     v.

                     HOME DEPOT U.S.A., INC.,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph A. DiClerico, U.S. District Judge]


                                  Before

                 Campbell, Senior Circuit Judge,
              Torruella and Lipez, Circuit Judges.




     Frederick H. Movitz on brief pro se.
     Robert P. Joy, Danielle L. Meagher and Morgan, Brown & Joy,
LLP on brief for appellee.



                           December 5, 2003
       Per Curiam.        Pro se plaintiff-appellant Frederick H. Movitz

("Movitz") appeals from a district court order denying his request

to amend his complaint to add a conspiracy claim to his wrongful

termination action against his former employer, defendant-appellee

Home Depot U.S.A., Inc. ("Home Depot").               We review the denial of

leave to amend a complaint for an abuse of discretion, deferring to

the district court if any adequate reason for the denial is

apparent from the record.          Resolution Trust Corp. v. Gold, 30 F.3d

251,       253    (1st   Cir.   1994).    We   have   reviewed   the   parties'

submissions and the record on appeal.                 We affirm the district

court's order because Movitz's requested amendment would have been

futile.          We briefly explain.1

       Movitz argues that he should have been permitted to add a

"count of conspiracy to commit fraud for writing false statements."

Under New Hampshire law, a civil conspiracy consists of: (1) two or

more persons; (2) an unlawful object to be accomplished; (3) an

agreement on the object or course of action; (4) one or more

unlawful overt acts; and (5) damages proximately resulting from the

acts.      University Sys. of N.H. v. United States Gypsum Co., 756 F.

Supp. 640, 652 (D.N.H. 1991), citing Jay Edwards, Inc. v. Baker,


       1
          We do not discuss Home Depot's separate contention that
Movitz's appeal fails because of his brief's flagrant failure to
comply with the procedural requirements of the Federal Rules of
Appellate Procedure.     A pro se party is not insulated from
complying with those rules. Ahmed v. Rosenblatt, 118 F.3d 886, 890
(1st Cir. 1997). Because Movitz's appeal lacks substantive merit,
we elect to proceed on that basis.

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130 N.H. 41, 47, 534 A.2d 706, 709 (1987).            New Hampshire, however,

does not recognize a civil action based on conspiracy alone.                    Id.

Rather,   for   a    civil    conspiracy      to   exist,   there   must   be   an

underlying tort which the alleged conspirators agreed to commit.

Id. Thus, if the underlying tort claim fails, the action for civil

conspiracy also fails.        See id.

     Movitz asserts that the object of the alleged conspiracy was

to commit the tort of fraud.         In order to prove fraud, a plaintiff

must show that: (1) the defendant misrepresented a material fact to

the plaintiff, knowing it to be false; (2) the defendant intended

that the plaintiff act on it; and (3) the plaintiff, without

knowledge    of      its     falsity,     detrimentally       relied      on    the

representation.       Alexander v. Fujitsu Bus. Communication Sys.,

Inc., 818 F. Supp. 462, 467 (D.N.H. 1993), citing Proctor v. Bank

of N.H., 123 N.H. 395, 399, 464 A.2d 263, 265 (1983).

     Movitz's claim is based on an allegedly false statement

submitted to Home Depot by Troy Patterson ("Patterson"), a former

co-worker.      Movitz     alleges   that     Patterson     admitted     that   his

statement to Home Depot was false, that he had been asked by an

assistant    store    manager,    Chris    Croce    ("Croce"),      to   make   the

statement, and that Scott Neal, the assistant store manager who

terminated Movitz, was "aware of the false statement."                     Movitz

asserts that Home Depot "store managers have had Mr. Patterson

write false statements and offered him higher positions in the


                                        -3-
company for doing so." Movitz argues that, "[i]f Mr. Patterson did

not come    forward   the   statements   would   have   been   against   the

plaintiff in his personnel file at Home Depot."

       Movitz's allegations fail to establish the elements of fraud

against the defendant, Home Depot.        Movitz does not allege that

anyone at Home Depot misrepresented any facts to him.            Rather, he

asserts that Patterson, at the instance of Croce, the assistant

store manager, misrepresented facts to Home Depot.             Also, Movitz

does not allege that any of the purported misrepresentations were

made with the intent that he rely on them, or that he actually

relied on them.    Indeed, Movitz admits that he was not even aware

of Patterson's "false statement" until discovery in this case.

Further, Movitz does not allege that he suffered any actual damages

as a result of the alleged conspiracy to make these purported

misrepresentations, or from the misrepresentations themselves.

Although Movitz asserts that Patterson's November 2, 2001 statement

would have been used against him in his personnel file at Home

Depot, Movitz alleged that he was terminated on November 2, 2001,

and at no point contends that Home Depot waited until after it

reviewed Patterson's statement to make the decision to terminate

him.    Further, at no point does Movitz contend that Home Depot

relied on Patterson's statement, or any other statement, in making

any decision regarding his employment.       Thus, to the extent Movitz

alleges fraud as having been the object of the conspiracy, he has


                                   -4-
failed to state facts constituting the tort of fraud, and he has

also failed to indicate that any damages resulted either from the

purported conspiracy or the alleged fraud.   Because his claim of

fraud fails, his claim of conspiracy to commit fraud also fails.

See University Sys. of N.H., 756 F. Supp. at 652.

     The judgment of the district court is summarily affirmed. See

1st Cir. Loc. R. 27(c).




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