          United States Court of Appeals
                      For the First Circuit

No. 10-1746

                          KENNETH EDLOW,

                      Plaintiff, Appellant,

                                v.

                            RBW, LLC,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                              Before

                      Lipez, Circuit Judge,
                   Souter,* Associate Justice,
                   and Howard, Circuit Judge.


     Diane Rubin, with whom Jeffrey J. Pyle, Joshua A. Lewin and
Prince, Lobel, Glovsky & Tye LLP were on brief, for appellant.
     Richard D. Batchelder, Jr., with whom William J. Dunn and
Ropes & Gray were on brief, for appellee.



                          August 8, 2012




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
          HOWARD,   Circuit   Judge.   This   action,   removed   from

Massachusetts Superior Court, involves residential condominium

units in a development along Boston's Battery Wharf.       Plaintiff

Kenneth Edlow appeals the 12(b)(6) dismissal of his suit against

the developer RBW, LLC, in which he sought to rescind his purchase

of a condominium unit, to recoup his deposits on a second unit, and

to recover damages.   Mr. Edlow also appeals the district court's

denial of his motion to amend his complaint.

                                  I.

          As presented in the complaint and documents incorporated

therein, the facts alleged are as follows.1    In the fall of 2004,

Edlow entered into three nearly identical purchase and sale ("p &

s") agreements with RBW for the purchase of three residential

condominium units in RBW's Battery Wharf Development project.     The

Master Deed and Condominium Documents explained that the project

was a luxury development consisting of a Residential Unit (which

included Edlow's units at issue here), a Commercial Unit, and a

Hotel Unit (the "Hotel").     At the time that the p & s agreements

were executed, it was anticipated that the Regent Hotel group would

operate the Hotel as the "Regent Boston," and the residential unit

occupants would have privileged access to the Hotel's "first-rate"


     1
        These documents include "RBW's marketing materials
[including the Condominium Presentation], the condominium documents
[including the Master Deeds of Battery Wharf Master Condominium,
the Residences Condominium, and the Commercial Condominium], and
the Purchase and Sale Agreements."

                                 -2-
amenities and concierge services.                 According to the marketing

materials that Edlow received from RBW, the Regent Boston was to

offer an 18,000 square foot Guerlain spa, over 5,000 square feet of

meeting space, and a signature restaurant by Michelin chef Guy

Martin.       The hotel services were to include 24-hour concierge

service and an executive business center.

              Edlow's closings were scheduled to take place by June

2007,   with    prices   set     at   $1,800,000       for   the   first   unit   and

$3,200,000 for each of the other two units. Over an eighteen-month

period beginning when the p & s agreements were entered into in

2004, Edlow paid promised deposits of varying amounts in three

installments, totaling twenty percent ($1,640,000) of the combined

purchase price.

              When   construction      on   the    project     fell   behind,     RBW

exercised its rights to extend the closing dates several times.

Concerned by this anemic progress, Edlow visited the site in April

2008.   It was clear to him during that visit that the Hotel was not

yet   ready    and   that   no   restaurant       or   spa   yet   existed.       RBW

representatives nevertheless assured him that the project was

proceeding and that "all promised amenities would be available."

              During the next month, the parties negotiated a revised

agreement.       Under this new agreement, Edlow would affirm his

commitment to purchase two of the units. He would be released from

the obligation to buy one of the more expensive units, and it was


                                        -3-
agreed that his $640,000 deposit on that unit would be put toward

the imminent purchase of the first of the two remaining units. The

new agreement contemplated that the parties would close on the sale

of the second remaining unit on August 15, 2008 and that they would

otherwise perform under the terms of the prior agreements.      The

closing for the first unit took place on May 15, 2008.

          In early June, RBW informed Edlow in writing that Regent

was pulling out of the project and that the restaurant and spa were

now scheduled to open in early 2009.      In early July, RBW also

informed him that the replacement hotel would not offer the

property management and concierge services that were discussed in

the original marketing materials.     Despite having received these

notices, Edlow executed the new agreement on July 27, 2008.

          Days later, Edlow notified RBW that he would not attend

the scheduled August 15 closing on the second unit, and he demanded

the return of his deposits on that unit.      He now justifies his

withdrawal by arguing that at the time, the project was far from

completion.   He emphasizes that it had no hotel or hotel operator,

no spa, no restaurant, no business center, "nor any of the other

elements of the promised package of lifestyle amenities."

          After the passage of several months, Edlow reasserted his

demand for the return of his deposits on the second unit.        In

November 2009 he sued in Massachusetts state court.      He alleged

that as of the date of his complaint, "RBW had still failed to


                                -4-
deliver the complete package of promised amenities and lifestyle

commitments for Battery Wharf."           The complaint did not specify

which amenities and lifestyle commitments had yet to be delivered,

but it did allege that RBW knew at the time of Edlow's April 2008

site visit that the hotel, restaurant, and spa would not be ready

by the scheduled August closing because Regent was no longer

involved    in    the   project.   The    complaint   asserted   that   RBW

intentionally and negligently misrepresented the project's status

to induce him into agreeing to purchase the remaining units under

the new agreement.       In addition, Edlow alleged that RBW violated

the "notice and delivery" requirements of § 9(3) of the p & s

agreement    by    failing    to   timely    inform   him   of   "secret,"

"substantive" modifications to the Master Deed of the Battery Wharf

Condominium.2

            Based on these allegations, Edlow's suit asserted various

contract, tort and statutory claims, and it sought both damages and

equitable relief, including rescission of his purchase of the first

unit. RBW removed the case to federal court and sought dismissal.

Shortly after a hearing on the motion to dismiss, Edlow sought

leave to amend his complaint to "clarify and expand upon the

factual bases of that claim."        The district court granted RBW's


     2
       The modifications include the addition of "three prime,
valuable waterfront patio areas to the limited common areas under
the control, and for the exclusive use of, the Hotel Unit, at the
expense of the amenities and value of the residential
condominiums."

                                    -5-
motion to dismiss and denied the motion to amend as moot.            This

appeal followed.

                                   II.

           Review is de novo, and our "sole inquiry . . . is

whether, construing the well-pleaded facts of the complaint in the

light most favorable to the plaintiff[], the complaint states a

claim for which relief can be granted."             Ocasio-Hernández v.

Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2009); see also Fed. R.

Civ. P. 12(b)(6) (providing review for failure to state a claim).

In making our inquiry, we are "not wedded to the lower court's

rationale and may affirm the district court's order of dismissal on

any ground made manifest by the record."        Decotiis v. Whittemore,

635 F.3d 22, 28 (1st Cir. 2011) (internal quotation marks omitted).

Although   Edlow   is   not   required   to   provide   detailed   factual

allegations "to provide the grounds of his entitlement to relief,"

he must articulate "more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do."   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(internal citations omitted).       Because jurisdiction is based on

diversity, 28 U.S.C. § 1332, we look to Massachusetts law for the

elements of Edlow's claims.       See Andrew Robinson Int'l, Inc. v.

Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).




                                   -6-
A. Breach of Contract

          The breach of contract claims were properly dismissed

because the complaint does not plausibly plead a breach of any

contractual duty.    The plaintiff's position is that RBW "was

unwilling or unable fully to perform" its contractual obligations;

that it failed to provide certain amenities allegedly promised as

part of the bargain; and that it "engag[ed] in a pattern of

obfuscation and misrepresentation concerning the status of the

project[] and its delays and setbacks."   Edlow also says that RBW

"made substantive modifications to the Master Deed" of the overall

condominium without the notice called for by § 9(e) of the p & s

agreements.

          1. The Allegedly Promised Amenities

          Edlow's position is that RBW had a duty to provide

certain promised amenities.   In making this claim, the complaint

refers to not only the p & s agreement,3 but also to the marketing

materials, to oral statements made by RBW representatives, and to

the Condominium Presentation's incorporated materials.4     Of the


     3
       For ease of exposition, we sometimes refer to the p & s
agreements in the singular where the agreements contain identical
provisions.
     4
       As described in section 9(a) of the p & s agreement, the
Condominium Presentation consisted of "(i) the current forms of the
Residences Condominium Documents, the Master Condominium Documents,
the Commercial Condominium Documents, the Deed and the Parking
Documents, (ii) a proposed estimated budget for the Residences
Condominium for its initial year of operation, (iii) the Project
Outline Specifications; (iv) the form of Certificate of Limited

                               -7-
documents and communications referred to in the complaint, however,

only the marketing materials and the alleged oral statements by RBW

representatives discussed specific details of alleged promised

amenities (e.g., a "Guerlain" spa, in contrast to a hotel spa; a

"three-star Michelin" restaurant, rather than a hotel restaurant;

and a "Regent" hotel, instead of a generic four-star hotel).     But

neither the marketing materials nor the oral statements were

incorporated into the p & s agreement, and that agreement contains

an unambiguous merger clause preventing their consideration.     See

Sound Techniques, Inc. v. Hoffman, 737 N.E.2d 920, 924 (Mass. App.

Ct. 2000) (agreed upon and unambiguous merger clauses are effective

unless fraud or deceit induced the contract, and thus they apply

notwithstanding negligent oral misrepresentations).    The primary

merger clause reads as follows:

     The terms of this Agreement, together with the
     Condominium Presentation, constitute the entire agreement
     between the parties hereto and no statements made whether
     orally or in writing, by anyone with regard to the
     transaction which is the subject of this Agreement shall
     be construed as a part hereof unless the same be
     incorporated herein by writing and signed by Seller and
     Buyer. Buyer has relied only upon the warranties and
     representations set forth in this Agreement, if any, and
     Buyer hereby waives, to the extent permitted by law any
     and all implied warranties.         No oral warranties,
     representations or statements shall be considered a part
     hereof.


Warranty for the Unit and Common Area Limited Warranty Certificate;
(v) the form of Tax Letter Agreement; (vi) the form of the 6(d)
certificates and Parking Unit expense certificate; and (vii) a
Specimen Owner's Title Insurance Policy and related title
information."

                                  -8-
P & s agreement § 21 (emphasis added); see also id. § 9(b) ("Seller

expressly        disclaims    any    representations      and       warranties   not

expressly       made    in   this    Agreement    in   writing      concerning   the

condition of the Unit or common areas and facilities . . . or any

other matter . . . ." (emphasis added)); id. § 9(d) ("Other than as

expressly set forth in this Agreement, . . . Buyer is not aware of

and does not rely upon any such representations."); id. § 16(b)

("The foregoing warranties shall constitute the only warranties

.   .   .   .     Seller     makes   no   other   warranty     or    representation

whatsoever or implied with respect thereto." (additional emphasis

omitted)).

                This unambiguous merger language and the fact that the

p & s agreement makes no mention of the marketing materials, either

directly or by incorporation through the Condominium Presentation,

place whatever those materials might say about the allegedly

promised amenities beyond the contractual obligations of RBW.

                Nor can the additional written terms of the p & s

agreement and the Master Deeds save this claim.                       Although the

agreement references the Commercial and Hotel Units, it does not

specify amenities to be included within those units, let alone any

particular level of any amenity.                  Section 7 of the agreement

describes        what    "Necessary       Facilities"    RBW     does    agree   to

"substantially complete[]" by the closing date and what parts of




                                          -9-
the project may not be completed by the closing date,5 but nowhere

does that section discuss amenities such as a three-star Michelin

restaurant or a Guerlain spa.

           The p & s agreement also provides, in § 7(d), that the

"Buyer   may   not   refuse   to   consummate   Closing   on   account   of

construction work in progress or pending with respect to other

units and/or the common areas and facilities . . . ."          According to

the complaint, two of the amenities that he was most concerned

about -- the Michelin restaurant and Guerlain spa -- were pending

at the time of the scheduled closing, as RBW had stated that they

were scheduled to open in early 2009; therefore, they could not

have been grounds for refusing to close.6

           The Condominium Presentation, by means of the explicitly

incorporated Master Deeds, mentions some amenities in general

terms, but it does not promise to provide specific amenities.

Rather, the Deeds discuss amenities in the broader, and negative,

context of reserving RBW's rights to include certain types of


     5
       This section of the p & s agreement defines "Necessary
Facilities" as "the Unit, and the common areas and facilities
necessary for access thereto and use thereof . . . ." Parts that
RBW is not obligated to complete are described as including those
whose "incompleteness . . . will not unreasonably prevent the
occupancy of the Unit or use of the Necessary Facilities," and
"finishes in hallways and lobbies need not be completed until unit
construction on the floor on which the Unit is located is
completed."
     6
       The record indicates that both the Michelin restaurant and
a hotel actually opened at least ten months prior to the filing of
Edlow's complaint.

                                    -10-
amenities within the project.7          The Deeds' language conveys an

intention to authorize RBW to use the Commercial and Hotel Units

for   such   amenities,   but   it   does   not   state   RBW   will   provide

particular amenities.

             Where there is no obligation to provide under a contract,

there can be no breach of that obligation.           Accordingly, Edlow's

claims of breach that rest on the allegedly promised amenities

necessarily fail.

             2. Changes to the Master Deed

             The complaint also alleges that RBW breached § 9(e) of

the p & s agreement by substantively modifying the Master Deed of

the Master Condominium to add patios to the limited common areas of

the Battery Wharf complex for the exclusive use of the Hotel Unit,



      7
       Section 8(a) of the Master Deed of the Master Condominium
provides that "[t]he Building and the Master Units may be used for
any lawful purpose not otherwise prohibited by the terms and
provisions of this Master Deed, . . . including, without
limitation, use for a hotel (including restaurants, bar and meeting
rooms), spa, health or fitness club, restaurants, parking garage
. . . and retail facilities, multi-family residences and time-share
hotel units." (Emphasis added). In addition, § 8(b)(8) restricts
the uses of the Commercial Unit, stating that it "shall be used
only for restaurants and food service, retail facilities selling
goods (but not services) at retail, spa, health or fitness club and
parking garage . . . and uses accessory thereto."         (Emphasis
added). Similarly, § 8(a) of the Master Deed of the Commercial
Condominium states that "[t]he portion of the Building constituting
the Commercial Condominium and the Units are intended to be used
primarily for hotel (including restaurants, bar and meeting rooms),
spa, health or fitness club, restaurants, parking garage . . . and
retail facilities and related purposes not otherwise prohibited by
the terms and provisions of this Master Deed . . . ." (Emphasis
added).

                                     -11-
and that RBW did this without giving the plaintiff required notice.

Section 9(e) of the p & s agreement states in relevant part:

     The Seller reserves the right, upon notice and delivery
     of a copy to Buyer, prior to the Closing Date, to make
     such modifications, additions or deletions in or to any
     of   the   Residences   Condominium   Documents,   Master
     Condominium Documents, Deed or Parking Documents as
     Seller may reasonably determine to be desirable in
     connection with the development and marketing of the
     Project or to meet the requirements of any applicable law
     or regulation, . . . provided that no such modification,
     addition or deletion shall (i) impose any additional
     restrictions on the use of the Unit; (ii) require a
     material physical modification of the layout, location,
     size or features of the Unit; or (iii) eliminate the
     right to use any area designated for the exclusive use of
     the Unit.

(Emphasis added). Section 15 states that "[a]ny notice . . . shall

be in writing and shall be deemed to have been properly given when

mailed, . . . or when hand delivered or sent by a recognized

overnight courier service, or when sent by facsimile by confirmed

transmission . . . ."

          Whatever the plaintiff's frustration with these changes,

we do not see how they were impermissible under § 9(e):     they do

not "impose any additional restrictions on the use of [his units]";

"require a material physical modification of the layout, location,

size or features of [his units]"; or "eliminate the right to use

any area designated for the exclusive use of [his units or the

Residential Unit as a whole]."    (Emphasis added).    Furthermore,

sections 5(d), (e) and (f) of the p & s agreement are consistent

with RBW's right to burden the master deeds and to modify its


                               -12-
obligations under those deeds upon proper notice to buyers.       Those

sections provide that RBW's promise to convey the individual unit

deeds in the form presented in the Condominium Presentation, as

well as free from liens and encumbrances, is subject to "the

rights, obligations, easements and restrictions and all other

provisions contained in" the master deeds (and related by-laws and

regulations) of the Master Condominium, Residences Condominium, and

Commercial Condominium.

          The question, at least so far as concerns the unit as to

which the closing never took place, is whether the complaint

plausibly alleges that RBW failed to meet its obligation to

"noti[fy] and deliver a copy" of the modifications to Edlow prior

to the scheduled closing.      We conclude that it does not.     First,

Edlow does not assert that he never received a copy of the modified

Master Deed.8     Rather, he argues that he was not effectively

notified, for the "modifications were obscurely buried in the text

of the Master Deed . . . and the accompanying plans and were not

clearly featured or otherwise mentioned to [him]."             But this

constructive    non-delivery   argument   ignores   the   definition   of

satisfactory notice included in § 15 of the p & s agreement, which



     8
       The parties enthusiastically dispute whether Edlow received
a copy of the modified Master Deed in conjunction with the purchase
of the first unit. The complaint, however, does not allege that
Edlow never received a copy, and he did not attempt to correct this
alleged misinterpretation by clarifying the facts in his proposed
Amended Complaint.

                                  -13-
states nothing about having to "feature[] or otherwise mention[]"

to him the individual changes in order to effectuate notice; it

simply calls for "a copy . . . of the . . . Documents" that have

been modified to be delivered to him.

            Second, the closing was not scheduled to occur until

August 15, and under § 9(e) RBW's obligation was only to notify

Edlow of the modifications before that date.        Id. § 9(e) ("notice

and delivery" must occur "prior to the Closing Date" (emphasis

added)).    Even were we to assume that Edlow did receive a copy of

the modified Master Deed in conjunction with the closing on the

first unit but that such delivery did not satisfy the notice

requirements of § 9(e) regarding the closing on the second unit, at

the time that Edlow balked RBW still had an entire week remaining

to act before it would have been in breach.        The plaintiff cannot

now   successfully   complain   that   RBW   breached   its   notification

obligations under § 9(e) because it failed to act before a closing

that he effectively cancelled.     Although, on a motion to dismiss,

we review "the well pleaded facts in the light most favorable to

the plaintiff, we need not 'swallow [his] invective hook, line, and

sinker.'"   Palmer v. Champion Mortgage, 465 F.3d 24, 28 (1st Cir.

2006) (citing Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)).

Because the complaint does not plausibly allege that RBW failed to

honor its duty to provide notice under § 9(e) prior to the aborted




                                  -14-
closing on the second unit, no claim of a breach of § 9(e) has been

stated as to that unit.

               The claim with respect to the unit on which Edlow did

accept delivery of title also, as noted in footnote 8 above,

amounts to a challenge to the adequacy of the notice received,

rather than an allegation that no notice was given.      But again the

agreement did not require any highlighting, featuring, or any

specific mentioning of the changes made.       Whether or not there is

a conceivable case for relief, this is not a plausible one, and

thus the complaint similarly fails to state a claim regarding this

unit.       Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25,

29 (1st Cir. 2010) ("The make-or-break standard . . . is that the

combined allegations, taken as true, must state a plausible, not a

merely conceivable, case for relief.").9




        9
       Along with his breach of contract claims, the plaintiff also
seeks to rescind his purchase of the first unit. Massachusetts
expects actions for rescission to "be brought with reasonable
promptness," Elias Bros. Rests., Inc. v. Acorn Enters., Inc., 831
F. Supp. 920, 927-28 (D. Mass. 1993) (internal quotation marks and
citation omitted), yet the plaintiff waited almost a year and a
half from the time that he purchased the first unit to file his
claims. Moreover, he has not averred that the p & s agreement for
either unit lacked consideration or that RBW had repudiated it.
See Worcester Heritage Soc'y, Inc. v. Trussel, 577 N.E.2d 1009,
1010 (Mass. App. Ct. 1991) ("There is ample authority for refusing
rescission where there has been only a breach of contract rather
than an utter failure of consideration or a repudiation by the
party in breach."). Having failed to state even a breach claim as
to either unit, Edlow is not entitled to rescission as a remedy.

                                    -15-
B. The Covenant of Good Faith and Fair Dealing

           Edlow argues that RBW breached the covenant of good faith

and fair dealing by "fail[ing] to construct and deliver the

promised   facilities    and     amenities    for   the    Battery    Wharf

Development," by refusing to return his deposits on the second unit

that it had retained as liquidated damages, by withholding critical

information, and by modifying the umbrella Master Deed without

giving proper notice under the p & s agreement.

           In   Massachusetts,    "every   contract   is   subject    to   an

implied covenant of good faith and fair dealing," Anthony's Pier

Four, Inc. v. HBC Assocs., 585 N.E.2d 806, 821 (Mass. 1991), but

"[t]he scope of the covenant is only as broad as the contract that

governs the particular relationship."        Ayash v. Dana-Farber Cancer

Inst., 822 N.E.2d 667, 684 (Mass. 2005); see also Uno Rests., Inc.

v. Boston Kenmore Realty Corp., 805 N.E.2d 957, 966 (Mass. 2004)

("[T]he covenant of good faith and fair dealing is not to supply

contractual terms that the parties are free to negotiate.").               As

explained above, RBW did not have a contractual duty to provide

Edlow's desired lifestyle amenities by the closing date.             Because

RBW was not obligated under the contract to provide the amenities,

it could not have breached the covenant as to them, and the claims

regarding them necessarily fail.

           Edlow also alleges that RBW violated the covenant of good

faith and fair dealing by retaining his deposits as liquidated


                                   -16-
damages.     That action, however, was expressly permitted by the

agreement. Without a plausible allegation of bad faith, this claim

stumbles. Equipment & Sys. for Indus. Inc. v. Northmeadows Constr.

Co., 798 N.E.2d 571, 575 (Mass. App. Ct. 2003) (dismissing covenant

claim   under   Rule   12(b)(6)   because   "there   is   nothing   in   the

complaint from which one might draw the reasonable inference that

the [alleged breach] was done in bad faith").

             Similarly, with respect to the modifications of the

Master Deed, not only is no plausible breach of contract alleged on

the face of the complaint, but also the complaint articulates no

"dishonest purpose, consciousness of wrong, or ill will." See id.

The only potential allegation of bad faith -- and it is more

implied than stated -- is that RBW knew that Regent was pulling out

of the project months before RBW notified the plaintiff of that

change.    But Edlow has not linked this one possible allegation of

a failure to share knowledge to any known duty, contractual or

otherwise.      Without more, this conclusory allegation does not

survive.   See Twombly, 550 U.S. at 555; see also Bank of Am., N.A.

v. Prestige Imports, Inc., 917 N.E.2d 207, 218 (Mass. App. Ct.

2009) (quoting Spiegel v. Beacon Participations, Inc., 8 N.E.2d 895

(1937)) ("'[Bad faith] is not simply bad judgment.             It is not

merely negligence.     . . .   It implies conscious doing of wrong.       It

means a breach of a known duty through some motive of interest or

ill will.'"); see also id. ("Massachusetts law has consistently


                                   -17-
defined   'bad     faith'    with   a   .   .   .   focus   on   the   subjective,

specifically on knowing and purposeful misbehavior.").

C. Misrepresentation

               The complaint alleges that RBW's statements in 2008

concerning the status of the project and associated amenities, as

well as its acts and omissions during that period, "constitute

intentional and/or negligent misrepresentation." Allegedly, Edlow

relied on these statements to his detriment, in that he was induced

by them into purchasing the first unit and executing the new

agreement.

               In Massachusetts, proof of misrepresentation "requires

that a plaintiff show a false statement of material fact made to

induce the plaintiff to act and reliance on the false statement by

the plaintiff to his detriment." McEneaney v. Chestnut Hill Realty

Corp., 650 N.E.2d 93, 96 (Mass. App. Ct. 1995); see also Cummings

v. HPG Int'l, Inc., 244 F.3d 16, 21 (1st Cir. 2001) ("[The]

threshold determination for any misrepresentation claim, be it for

deceit    or    for     negligent   misrepresentation[]          [is   that]   only

statements of fact are actionable; statements of opinion cannot

give rise to a deceit action or to a negligent misrepresentation

action.").        Furthermore, a plaintiff must show reasonable or

justifiable reliance on the allegedly injurious representation.

See Cumis Ins. Society, Inc. v. BJ's Wholesale Club, Inc., 918

N.E.2d    36,      47     (Mass.    2009)       (holding     that      intentional


                                        -18-
misrepresentation plaintiff must establish he "reasonably relied on

the representation as true" (emphasis added)); Nota Constr. Corp.

v. Keyes Assocs., 694 N.E.2d 401, 405 (Mass. App. Ct. 1998)

(holding that negligent misrepresentation plaintiff "must prove

that the defendant . . . supplies false information . . . causing

and resulting in . . . loss . . . by their justifiable reliance

upon   the     information"   (emphasis   added)).      The   alleged

misrepresentations that Edlow complains of are statements and

promises allegedly made in the context of negotiating the new

agreement, but that were not included either in that written

agreement or in the underlying p & s agreement.      For the reasons

already discussed, we have concluded that none of these documents

incorporate any actionable promises or oral statements from RBW

regarding the amenities or their status.    In the context of merger

doctrine applicable to this case then, the plaintiff's alleged

reliance on such statements would have been neither reasonable nor

justifiable.

             Moreover, as to the second unit, Edlow cannot argue that

he reasonably relied upon Regent's continued participation when he

signed the new agreement to purchase that unit, because he signed

that agreement after he had received notice of Regent's withdrawal,

the lack of concierge services, and the fact that the restaurant

and spa would not be ready until 2009.




                                 -19-
D.   Liquidated Damages

             Edlow argues that the liquidated damages provision in the

p & s agreement, which provided for up to twenty percent of the

purchase price to be kept as liquidated damages,10 was not a

reasonable forecast of damages and was so unconscionably excessive

as to constitute a penalty.          On the record before us, we disagree

with him that this count should have survived the motion to

dismiss.

             The    reasonableness    vel    non    of    a   liquidated   damages

provision involves a question of law, see NPS, LLC v. Minihane, 886

N.E.2d     670,    673   (Mass.   2008),    and    such   "provisions      will   be

enforceable so long as 'at the time the agreement was made,

potential damages were difficult to determine and the clause was a

reasonable forecast of damages expected to occur in the event of a

breach.'"11 NRT New England, Inc., v. Moncure, 937 N.E.2d 999, 1002



      10
       The p & s agreement's liquidated damages provision, § 18,
states that "[i]f Buyer shall fail to fulfill any of Buyer's
agreements herein, the Deposits shall be paid to Seller and
retained as complete and final liquidated damages and neither party
shall have any further recourse to the other."
      11
        Addressing the purpose of liquidated damages in a real
estate context, the Massachusetts Supreme Judicial Court has
underscored that "[r]eal estate purchase and sale agreements are
precisely the type of contracts that are amenable to liquidated
damages provision," for "the parties could not know what delays
might ensue, what might occur in the real estate market, or how a
failed sale might affect [the seller's] plans." Kelly v Marx, 705
N.E.2d 1114, 1117 (Mass. 1999) (citation omitted). We need go no
further to conclude that damages here were difficult to determine
ex ante.

                                      -20-
(Mass. App. Ct. 2010) (quoting Kelly v. Marx, 705 N.E.2d 1114, 1115

(Mass. 1999)); see also Restatement (Second) of Contracts, § 356(1)

(1979) (holding that liquidated damages must be "reasonable in the

light of the anticipated or actual loss," and "[a] term fixing

unreasonably large liquidated damages is unenforceable on grounds

of public policy").

            There is no "bright line separating an agreement to pay

a reasonable measure of damages from an unenforceable penalty

clause."   TAL Fin. Corp. v. CSC Consulting, Inc., 844 N.E.2d 1085,

1093 (Mass. 2006).      Pointing to Massachusetts cases, Edlow says

that drawing any line requires an examination of the factual

context.   See, e.g., Honey Dew Assocs., Inc., v. M & K Food Corp.,

241 F.3d 23, 28 (1st Cir. 2001) (holding that "[d]etermining the

validity of a liquidated damages clause is usually a fact-specific

exercise[,]" and courts should inform their determinations of

reasonableness with "an understanding of the factual predicates for

the liquidated damages clause").          None of the cases he cites,

however, hold that dismissal is improper in the absence of facts

alleged    in   the   complaint   that    would   support   a   finding   of

unreasonableness, and Edlow's complaint does not contain such

allegations.

            Beyond a conclusory assertion that the liquidated damages

amount is not reasonably related to anticipated damages, the

complaint alleges no facts to support that conclusion. Indeed, the


                                   -21-
only   potentially     relevant   facts    alluded     to   in   the   complaint

suggest, if anything, that the forecast was not unreasonable.                  The

complaint alleges that a representative of RBW was quoted in the

Boston Globe newspaper as saying that the units were expected to

bring in "an average price per square foot of $1,150, record

territory for Boston real estate" and that the project was to

"equal the Mandarin Oriental in condo finishes, services, and in

exclusivity."       This allegation suggests that the high-end, luxury

units were aimed at a limited and distinctive market of financially

capable prospective owners and investors.                   An inference that

naturally follows is that RBW might encounter difficulties in

moving units placed back into inventory after a breach, and no

facts have been alleged suggesting otherwise.

            In addition to the alleged facts suggesting an exclusive

market, we also note that the anticipated sales involved pre-

construction commitments to purchase units that would not be

completed for at least two years.             This extended time frame is

reflected in the staggered structure of the deposits.                 Contrary to

the    inferences    that   the   plaintiff    would    have     us    draw,   the

liquidated damages provision did not call for automatic retention

of a twenty percent deposit.         Rather, the provision contemplated

three separate deposits to be submitted over the course of eighteen

months.    If Edlow had breached within six months of signing the p

& s agreement, then RBW would have been entitled to retain only the


                                    -22-
first five percent deposit as liquidated damages, a measure that

Massachusetts courts have routinely found to be reasonable.                See,

e.g., NRT New England, 937 N.E.2d at 1003 (holding five percent

liquidated damages were reasonable and noting it "reflected the

'industry    norm'"   in   the    context   of   the     case's    real   estate

transaction).      Similarly, after six months and payment of the

second five percent deposit, RBW would have been entitled to retain

only ten percent in total deposits, also not an unprecedented

amount.   Cf. Allen v. Wenger, No. 07-P-426, 2008 WL 3877182, at *2

(Mass. App. Ct. Aug. 22, 2008) ("A deposit of ten percent on a real

estate contract does not appear unreasonable on its face."); see

also Lynch v. Andrew, 481 N.E.2d 1383, 1386 (Mass. App. Ct. 1985)

(liquidated damages provision of purchase and sales agreement

calling for retention of $25,400 deposit for failure to obtain

$155,000 mortgage was not so unreasonable as to constitute an

unenforceable penalty).

             The parties' protestations notwithstanding, what happened

to the general real estate market beginning in 2008 is irrelevant

to a first look analysis.        Even in 2004 it would have been evident

that RBW faced multiple risks in the event of buyer breach:                 the

real estate market could not be predicted with certainty or

specificity that far out, there were potential costs related to

finding   replacement      buyers,   and    there   were    financial     risks

associated     with   carrying    the   expenses    of    the     units   during


                                     -23-
condominium construction and beyond.         Compounding these risks was

the fact that, as noted, these units were part of a niche luxury

residential condominium market, with price tags so high that the

potential-buyer pool was naturally limited.

            Because the facts pleaded would not support a plausible

inference that the liquidated damages provision was unconscionable,

we affirm the district court's dismissal of this count.12

E. Mass. Gen. Laws ch. 93A

            Taken together, §§ 2 and 9 of the Massachusetts Consumer

Protection Act, Mass. Gen. Laws ch. 93A, permit a plaintiff to sue

for injury resulting from unfair or deceptive business practices.

Gossels v. Fleet Nat'l Bank, 902 N.E.2d 370, 378 (Mass. 2009).

"There is no binding definition of what constitutes an unfair

practice    under   [the   Act],"    and   "[t]he        existence   of   unfair

. . . practices must be determined from the circumstances of each

case."     Green v. Blue Cross & Blue Shield of Mass., Inc., 713

N.E.2d 992, 996 (Mass. App. Ct. 1999) (citation omitted)(internal

quotation marks omitted).

            Edlow   says   that   RBW    violated    the    Act   "[i]n   making

material    misrepresentations      to   [him],     in    failing    to   provide

accurate and timely information concerning the status of the


     12
       The plaintiff sought a declaratory judgment under Mass. Gen.
Laws ch. 231A § 1, et seq., that he is entitled to the return of
his deposits on the second unit, with interest.      We affirm the
district court's denial of this request, because the liquidated
damages provision was not unconscionable.

                                    -24-
project, in failing to make disclosures that would have influenced

[him] not to close on [the first unit], in insisting on its right

to retain [his] 20% deposit as liquidated damages despite the

unconscionability of the forfeiture, and in failing to provide full

performance as of the date set for the closing."13                       We have

explained why the latter two claims cannot form any basis for

relief.    Additionally,       whether    or   not    proof   of   the   alleged

misrepresentations or failures to disclose could lead a fact-finder

to   conclude   that   RBW   has   committed    "an    'immoral,    unethical,

oppressive, or unscrupulous' business act as required by [chapter]

93A," see Gossels, 902 N.E.2d at 375, under Massachusetts law Edlow

cannot prevail on claims for unfair and deceptive trade practices

"unless [he] can also prove that [his] reliance on the allegedly

false statements was reasonable." Mass. Laborers' Health & Welfare

Fund v. Philip Morris, Inc., 62 F. Supp. 2d 236, 241-42 (D. Mass.

1999) (emphasis in original) (citation omitted); see also Aspinall

v. Philip Morris Cos., Inc., 813 N.E.2d 476, 488 (Mass. 2004)

(holding that conduct is actionably "deceptive when it has the

capacity   to   mislead      consumers,    acting     reasonably    under    the

circumstances, to act differently from the way they otherwise would

have acted (i.e., to entice a reasonable consumer to purchase the

product)" (emphasis added)). For the reasons previously discussed,



      13
       We presume that the "closing" referred to at the end of this
claim was the scheduled August closing on the second unit.

                                    -25-
no reasonable fact-finder could conclude that Edlow's reliance upon

the allegedly false statements was reasonable.14

F. The Motion to Amend

               Finally, the plaintiff argues that the district court

erred in denying his motion to amend the complaint.                 See Fed. R.

Civ. P. 15.        We review denials of motions to amend for abuse of

discretion. Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 132

(1st Cir. 2006).        Leave to amend is "freely given when justice so

requires," Fed. R. Civ. P. 15(a), but courts have discretion to

deny such motions under appropriate circumstances, including undue

delay and futility.          Palmer, 465 F.3d at 30.

               There was no abuse of discretion.              Edlow filed the

original complaint in November 2009 and sought to amend it only

after the May 2010 hearing on the motion to dismiss at which the

court expressed serious doubts that the complaint was sufficient to

survive dismissal.        During the intervening six months, however, no

"newly discovered evidence, not previously available, . . . came to

light."        Id. at 31.     To the contrary, the factual predicates on

which the proposed amended complaint is based are the same as those

in the original complaint and were known to Edlow before he filed

suit.        See Id.   Although the amended complaint does elaborate on

the   factual      context    of   several    of   the   counts,   the   proposed


        14
       In his proposed amended complaint, Edlow elaborates somewhat
on his reliance, but he does not assert additional facts that would
make such reliance plausibly reasonable.

                                       -26-
amendments are futile because they do not rectify his claims'

fundamental flaws and thus save them from dismissal, for the

reasons already discussed above.        See Platten, 437 F.3d at 132

("Since denial of plaintiffs' motion as futile would be appropriate

if the amended complaint still failed to state a claim sufficient

to survive a motion to dismiss, our review . . . is, for practical

purposes, identical to review of a Rule 12(b)(6) dismissal based on

the allegations in the amended complaint.").15       In view of the

timing and futility of the proposed amendments, we affirm the

district court's denial of Edlow's motion.

                         III. CONCLUSION

          We affirm the dismissal of all claims, as well as the

denial of the motion to amend.

          So ordered.




     15
       Prior to the motion to amend, Edlow maintained that he was
not claiming fraud in the inducement. In Count V of the proposed
amended complaint he alleged that RBW "fraudulently induc[ed] [him]
to enter into the Three-Unit Agreement."           This conclusory
allegation fails to meet the general pleading standards under Rule
8(a); accordingly, neither can it meet the heightened pleading
standards required for fraud. See Linear Retail Danvers 1, LLC v.
Casatova, LLC, 2008 WL 2415410, at *2 (Mass. Super. June 11, 2008)
(citing Equip. & Sys. for Indus., Inc., 798 N.E.2d at 574) ("At a
minimum, a complaint alleging fraud must particularize the identity
of the person(s) making the representation, the contents of the
misrepresentation, and where and when it took place."). Amending
the complaint to add this allegation would therefore be futile.

                                 -27-
