

                      [NOT FOR PUBLICATION]

                  United States Court of Appeals
                      For the First Circuit
                                           

No. 96-2331

          LOUIS GIULIANO &amp; 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 &amp;                                                                           
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

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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 &amp; 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).

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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

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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

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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

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