
USCA1 Opinion

	




          October 4, 1993   UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1114                                  GARY A. COOPRIDER,                                Plaintiff, Appellant,                                          v.                     JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET               The opinion of this  Court issued on September 29,  1993, is          amended as follows:               On  page 4,  first line  of second  full paragraph,  replace          "1889" with "1989".          September 29, 1993                                 NOT FOR PUBLICATION                                 NOT FOR PUBLICATION                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1114                                  GARY A. COOPRIDER,                                Plaintiff, Appellant,                                          v.                     JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Charles B.  Manuel,  Jr. with  whom  James  B. McKinney,  Jr.  and            _______________________              _______________________        Manuel & McKinney were on brief for appellant.        _________________            Neil  Jacobs with whom Susan M. Curtin, Ann  K. Bernhardt and Hale            ____________           _______________  _________________     ____        and Dorr were on brief for appellee.        ________                                 ____________________                                 ____________________                 BOUDIN, Circuit  Judge.  Gary A.  Cooprider brought this                         ______________            diversity  action against his  former employer,  John Hancock            Mutual  Life  Insurance  Company ("John  Hancock"),  claiming            breach of contract, bad faith breach of contract, intentional            interference  with contractual  relations, fraud,  and unfair            and deceptive  trade practices under  Mass. Gen. L.  ch. 93A.            The district court granted  summary judgment for John Hancock            on all claims, and Cooprider brought this appeal.  We affirm.                 Cooprider  had  been   associated  with  John  Hancock's            European operations for brief  periods in 1974 and 1983.   In            late 1988,  Cooprider  spoke to  J.  Paul McDonnell,  a  John            Hancock  vice   president  in  Boston,  about  renewing  that            association.  McDonnell directed Cooprider to contact Charles            Woolley, John  Hancock's European general agent.   In January            1989,  Cooprider and  Woolley  met in  Germany and  discussed            Cooprider's joining the company in a supervisory capacity.                  They met again in March in London  and on March 6, 1989,            Cooprider  and  Woolley   initialed  a  one-page  handwritten            document,   drafted  by  Cooprider,  entitled  "Agreement  by            Charles   Woolley  with   GA  Coop   Cooprider"  ("Coop"   is            Cooprider's  nickname).    This document  says,  among  other            things, that "Woolley  agrees to groom  GA Coop Cooprider  to            take over the agency for John Hancock in Europe" when Woolley            stepped  down  no  later  than  June  6,  1992.     Cooprider                                         -2-                                         -2-            subsequently returned  to his  home in Germany  retaining the            original handwritten document.                   Shortly thereafter,  Woolley asked Cooprider  to draft a            "letter of understanding" for Woolley to send to McDonnell in            the John Hancock home office  in Boston.  Cooprider complied,            and  a letter  dated  March 7,  1989,  purportedly signed  by            Cooprider,1  was sent  by Woolley  to McDonnell  on  March 8.            The letter of  understanding differed significantly from  the            handwritten agreement.  In particular, it did not contain any            provision for Cooprider to  take over the European  agency or            establish a retirement date for Woolley.  Cooprider wrote:                 It is  my understanding, from discussions with you,                 that  John Hancock  has agreed  in exchange  for my                 goal of  bringing an estimated eight  (8) agents on                 board  ..., John  Hancock  will pay  me $5,000  per                 month for  twelve (12) months or  the normal C.D.P.                 compensation  formula, whichever is greater.  It is                 also  my   understanding  that  some   expenses  of                 recruiting will be shared as budget allows.                 With  my considerable  experience at  marketing and                 recruiting  John Hancock  has an  excellent back-up                 until your  retirement at  which time, based  on my                 successful  accomplishments  and  ability to  be  a                 Hancock  team   player,   I  will   receive   first                 consideration  for  the  right  to  lead  the  John                 Hancock operations in Europe.                                            ____________________                 1Cooprider claims to have  signed a different version of            this letter dated March 6, 1989.  However, he admits that the            signature on  the March 7 version  appears to be  his and has            presented no evidence that  John Hancock received the earlier            draft.  The two drafts differ in one particular.  The March 6            version states that Cooprider will have "earned the right" to            lead  John Hancock operations in Europe.  The March 7 version            provides that  he will receive "first  consideration" for the            right to lead based on his "successful accomplishments".                                         -3-                                         -3-            Neither the letter of understanding nor an accompanying cover            letter from Woolley contain  any reference to the handwritten            agreement.    Cooprider  acknowledges  receiving  a  copy  of            Woolley's  cover letter by facsimile  the day it  went out to            McDonnell.                   On  March 14,  1989,  McDonnell advised  Woolley of  his            agreement  with the correspondence he  had received.  He made            no reference to the handwritten agreement, and  he later said            that  he was  unaware of  the agreement.   However,  he asked            Woolley to clarify with Cooprider that  Cooprider was to work            exclusively  with John Hancock.  Woolley did so and Cooprider            later wrote to inform John Hancock that he had terminated his            contracts  with  the five  insurance  companies  that he  had            represented in Europe until then.                 On or about March 14, 1989, Thomas Horack,  another John            Hancock  vice president located  in Massachusetts, approved a            request form from Woolley to employ Cooprider.  An attachment            specified  Cooprider's first  year  monthly compensation  and            indicated that thereafter compensation would be in accordance            with a formula, apparently based on business development.  On            April 1, 1989,  Cooprider began work for  John Hancock. After            five months, Cooprider was terminated,  apparently because of            dissatisfaction with his performance.                 This  action ensued.    Limited discovery,  directed  to            dispositive issues, was  allowed.  John Hancock in due course                                         -4-                                         -4-            moved for summary  judgement.   On December  29, 1992,  Judge            Zobel filed  a memorandum granting summary  judgment in favor            of John  Hancock; her  determinations are described  later in            this opinion.  This appeal followed.                 Summary  judgement is  appropriate  when  "there  is  no            genuine issue  as to any material  fact and . .  . the moving            party is entitled to  judgment as a  matter of law." Fed.  R.            Civ. P. 56 (c).   To withstand a summary judgment motion, the            nonmoving party  must "set forth specific  facts showing that            there is a genuine issue for trial."  Fed. R. Civ. P. 56 (e).            On  appeal review is  plenary and inferences  are resolved in            favor  of  the party  opposing  summary  judgment.   FDIC  v.                                                                 ____            Longley, 988 F.2d 270 (1st Cir. 1993).            _______                 Cooprider's   second   amended  complaint   defines  the            contract at issue for purposes of all claims as a  "long term            management   contract,"  arising   out  of   the  handwritten            agreement signed  by Cooprider  and Woolley, under  which the            plaintiff  was to  be engaged  as John Hancock's  director of            marketing  and manpower  development  for a  period of  three            years after  which  he was  to  succeed Woolley  as  European            general agent for John Hancock.  In granting summary judgment            on  the  contract  claim,   the  district  court  found  that            Cooprider had  failed to show  that Woolley had  authority to            enter  into such  a contract  or that  the John  Hancock home            office approved or ratified such a contract.                                          -5-                                         -5-                 The   record   amply  supports   the   district  court's            conclusion  and shows that there  was no factual  issue for a            jury.  Cooprider's deposition shows that he knew that Woolley            lacked authority  to enter into a binding  agreement with him            on behalf  of John Hancock.  As to approval  or ratification,            Cooprider  proffered  no  evidence to  contradict  the  sworn            statements  of   McDonnell,  Horack  and  Woolley   that  the            handwritten  agreement was  not sent  to John  Hancock's home            office nor  were its contents  ever communicated to  the home            office at any time prior to Cooprider's termination.                  In  an attempt  to create  a factual  dispute, Cooprider            contends that statements by Woolley  in two affidavits are so            contradictory  as  to  raise  serious  doubts  regarding  his            credibility.   These alleged  contradictions, however, appear            to  be largely manufactured.   In any event,  the evidence of            those  at  the  home  office  is  consistent  with  Woolley's            statements and Cooprider offers nothing to contradict it.  We            have held that to defeat summary judgment the nonmoving party            must  provide more  that  "conclusory  allegations,  improper            inferences, and unsupported speculation."  Medina-Munoz v. R.                                                       ____________    __            J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).               _______________________                 Record evidence  on the issue of  authority also renders            summary judgment appropriate on Cooprider's claim that he was            fraudulently induced  to enter into a  relationship with John            Hancock  based on  misrepresentations regarding the  terms of                                         -6-                                         -6-            his employment.  In order to make out a  claim for fraudulent            misrepresentation,  a party must  show reasonable reliance on            the alleged misrepresentations. Turner v. Johnson &  Johnson,                                            ______    __________________            809  F.2d 90, 95 (1st  Cir. 1986).   Cooprider was admittedly            aware  of Woolley's lack of  authority.  Any  reliance on the            handwritten  agreement  was,  therefore,  unreasonable  as  a            matter of law.                  On appeal, Cooprider argues that even if the handwritten            agreement did not bind  John Hancock to appoint Cooprider  as            Woolley's  successor, at  least he  had a  one-year agreement            with John  Hancock which  the latter breached  by discharging            him after  five months.   This claim does  not appear  in the            second amended  complaint and there is no  indication that it            was  presented to Judge Zobel.  We will not normally consider            claims made for  the first time  on appeal, Jones v.  City of                                                        _____     _______            Somerville, 735 F.2d  5, 7 (1st Cir. 1984), and see no reason            __________            here for  an exception to this rule.  We note in passing that            Cooprider seems  to have  very little  basis  for this  newly            developed claim.2                                            ____________________                 2The  premise of the claim appears to be the letter that            Cooprider  drafted, dated March 6 or March 7, to be forwarded            to  John Hancock's  headquarters.  The  letter in  the record            does  nothing  more  than  specify monthly  compensation  for            Cooprider during  his first 12 months.   It would be  quite a            stretch  to   convert  what  appears  to   be  an  employment            relationship  of  indefinite   duration,  which  is  normally            terminable  at will,  into a  commitment  by John  Hancock to            retain Cooprider for one year.                                         -7-                                         -7-                 Cooprider further alleges  that John Hancock  terminated            his employment to retaliate for his complaints about supposed            illegal  requirements imposed  on  John Hancock  recruits  in            Europe.     Massachusetts  allows   claims   for  bad   faith            termination  where   an   at-will  employment   contract   is            terminated for reasons contrary to public policy.   DeRose v.                                                                ______            Putnam Management Co.,  398 Mass. 205, 496 N.E.2d 428 (1986).            _____________________            The  claim of retaliation  was not presented  to the district            court except in the most fragmentary and abbreviated way, and            we  decline to  consider  it.   Cooprider  did argue  to  the            district  court  that  the  alleged  illegal  practices  were            violations of chapter 93A and we consider that claim below.                   Cooprider also asserts  that John Hancock  intentionally            interfered  with  contractual  relationships.    The district            court  explained that  Cooprider  could not  base a  cause of            action on his own  voluntary termination of his relationships                               _________            with other  insurance companies.   On appeal,  Cooprider says            that  he does not dispute  this ruling but  he complains that            the  district  court failed  to discuss  his claim  that John            Hancock interfered with Cooprider's contractual relationships            with agents whom he  brought with him to John  Hancock.  Once            again, we  do not  think  that Cooprider  has preserved  this            claim.                 It is true that the complaint contains a brief reference            to  Cooprider's  severed relationships  not  only with  other                                         -8-                                         -8-            insurance  companies but  with other  agents who  served such            companies.  But his  opposition to summary judgment discussed            only Cooprider's  own relationship with  those companies, and            the resurrection  on appeal of a  claim regarding Cooprider's            agents  comes too late.   We add that  Cooprider's brief does            not illuminate the nature  of Cooprider's alleged contractual            relationships with those agents  or explain what interference            he claims to have occurred.                 Finally, plaintiff claims violations of Mass. Gen L. ch.            93A    11,  which provides  "a private right  of action  to a            person who  is engaged in  business and  suffers a loss  as a            result of an unfair  or deceptive act or practice  by another            person also engaged in  business."  See Nader v.  Citron, 372                                                ___ _____     ______            Mass. 96, 360 N.E.2d 870  (1977).  Cooprider's complaint gave            no hint  of the basis for this  claim, merely alleging at the            end of  the complaint  that everything previously  alleged in            the entire document made out a violation  of chapter 93A.  In            discussing  chapter 93A,  Cooprider's  opposition to  summary            judgment  referred to  the allegedly  illegal  practices that            were the  subject of  his post-termination letter.   It  then            went on to assert that the acts underlying his contract claim            also gave rise to liability under chapter 93A.                 The district  court dismissed  the chapter 93A  claim on            the ground that it related to acts occurring primarily abroad            and   was  therefore  outside  chapter  93A's  jurisdictional                                         -9-                                         -9-            requirements.   See Mass. Gen L.  ch. 93A,   11.   On appeal,            Cooprider ignores  his  prior suggestion  that  the  contract            claim falls  under chapter 93A  and Cooprider argues  in this            court  that the supposed illegal practices occurred primarily            in  Massachusetts.  It  is  quite likely  that  the  district            court's  remarks were  directed,  quite  appositely, only  to            Cooprider's effort in opposing summary judgment to recast his            contract claim as one under chapter 93A.                 There is, however, not the slightest reason to remand to            obtain  the  district   court's  evaluation  of   Cooprider's            alternative chapter  93A claim based on  the supposed illegal            practices.  As  to those, Cooprider argues  that John Hancock            was  making its  European  agents  register as  Massachusetts            agents,  perjuriously giving John  Hancock's in-state address            as their residences.   Assuming arguendo that this occurred--                                            ________            and John Hancock is  mysteriously silent on this point--there            is no  hint whatever in Cooprider's  complaint, opposition to            summary judgment or principal  brief in this court as  to how            the requirement or the  perjury themselves directly  affected            Cooprider.                  Finally, Cooprider argues that the district court denied            him  the  opportunity  to  conduct  adequate  discovery.  The            district court held a scheduling  conference at the outset of            the  litigation at which Cooprider's counsel  agreed to a 60-            day  timetable for  discovery  on the  dispositive issues  of                                         -10-                                         -10-            authority  and  ratification.   Cooprider apparently  made no            effort  during that  period  to depose  the three  witnesses,            McDonnell,  Horack and  Woolley, most  likely to  possess the            necessary information.  The  district court acted well within            its discretion in denying  Cooprider's later motion to permit            him to conduct numerous depositions at home and abroad.                 This  case appears to have had no merit from the outset.            The district judge is to  be congratulated, not faulted,  for            focusing the discovery, holding the parties to the scheduling            order, and crisply disposing of Cooprider's diffuse claims on            summary judgment.   Nothing in the  district court's decision            warranted this appeal.                 Affirmed.                   ________                                         -11-                                         -11-
