
USCA1 Opinion

	




          June 25, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 96-1055                                BOSTEC SYSTEMS, INC.,                                Plaintiff, Appellant,                                          v.                           MASTERCARD INTERNATIONAL, INC.,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. W. Arthur Garrity, Senior U.S. District Judge]                                          __________________________                      [Hon. Patti B. Saris, U.S. District Judge]                                                   ___________________                                                                                      ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Andrew Schultz, with whom Michael S. Field, Dimitrios Ioannidis,             ______________            ________________  ___________________        Beth Pirro Cook and Field & Schultz were on brief for appellant.        _______________     _______________             Andrew W. Goldwater, with whom Friedman & Kaplan LLP was on brief             ___________________            _____________________        for appellee.                                                                                      ____________________                                                                                      ____________________                    Per Curiam.  Appellant  Bostec Systems, Inc. challenges                    Per Curiam.                    __________          a  summary  judgment  dismissing   its  breach  of  contract  and          promissory estoppel claims against Mastercard International, Inc.          Bostec argues that  a trialworthy factual  dispute remains as  to          whether Mastercard promised to require its members  to purchase a          machine     capable  of affixing tamper-evident,  paper signature                                                            _____          panels to  credit cards    were Bostec to design and develop such          a  machine.   Following  plenary  review,  Laura  Thorn, Ltd.  v.                                                     __________________          Alletzhauser, 71 F.3d 991, 993 n.4 (1st Cir. 1995), after careful          ____________          consideration  of  Massachusetts law  and  the  entire record  as          illuminated by  the briefs  and oral  argument, we  are persuaded          that  the district court correctly concluded, as a matter of law,          that  though  Mastercard     encouraged  Bostec's   developmental          efforts,  it  made  no  express or  implicit  promise  that could          support either a contract claim or a promissory estoppel claim.1                    Viewed  in  the light  most  favorable  to Bostec,  the          evidence  reveals  that  Mastercard  broached its  idea  for  the          development of a signature panel machine to Bostec in March 1987,          and monitored Bostec's progress before finally approving a Bostec          paper  signature  panel  prototype  in  December  1991.    Bostec                                        ____________________               1See Rhode Island  Hosp. Trust Nat'l  Bank v. Varadian,  647                ___ _____________________________________    ________          N.E.2d 1174,  1179 (Mass. 1995)  ("[A]n action based  on reliance          [e.g., promissory  estoppel] is equivalent to  a contract action,          and  the party  bringing  such  an  action  must  prove  all  the          necessary  elements  of a  contract other  than consideration.");          Simons v. American Dry Ginger Ale Co., 140 N.E.2d 649, 652 (Mass.          ______    ___________________________          1957)  ("All  the   essential  terms  of   a  contract  must   be          sufficiently definite  so  that  the  nature and  extent  of  the          obligations  of  the  parties  can  be  ascertained."   (citation          omitted)).                                          2          concedes, however, that no enforceable promise was made prior  to          Mastercard's March 1990 letter, which confirmed its commitment to          require Mastercard members to use a "new secure signature panel."          Instead, Bostec contends that it is the entire course of dealings          between the parties that evinces a promise  to require Mastercard          members to use only  the paper signature panel machine  developed                                   _____          by Bostec at Mastercard's suggestion.                      Neither the course of  dealings between the parties nor          the  March  1990  letter   generated  a  trialworthy  claim  that          Mastercard made a "sufficiently  definite" promise to require its          members  to  use,  or   acquire,  only  a  tamper-evident,  paper                                                                      _____          signature panel on its credit cards.  See Simons v. American  Dry                                                ___ ______    _____________          Ginger  Ale Co., 140 N.E.2d 649, 652  (Mass. 1957); supra note 1.          _______________                                     _____          In   November   1988,   Mastercard  sent   Bostec   (and  others)          specifications, explicitly permitting signature panels to be made          from   paper,  mylar,   film,  or   other  comparable   material.          Mastercard informed Bostec in May 1989 that it would  not grant a          monopoly  to any one equipment supplier.  Finally, the March 1990          letter     confirming  Mastercard's commitment  to a  "new secure          signature panel"     cannot  support a reasonable  inference that          Mastercard promised to require its secure signature panels  to be          made from paper  to the exclusion of  all other materials, or  to          require its  members to  purchase Bostec's paper  signature panel                                                     _____          machine.  Absent evidence of a sufficiently definite promise, the          Bostec claims fail as a matter of law.  See supra note 1.                                                  ___ _____                    Affirmed.                      Affirmed.                      ________                                          3
