Boyle v. Hasbro, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1337

PATRICK J. DOYLE AND H.P. LEASING, INC.,

Plaintiffs - Appellants,

v.

HASBRO, 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

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Jeffrey S. Entin and Sahady, Entin & Entin, P.C. on brief

for appellants.
John A. Tarantino, Patricia K. Rocha and Adler Pollock &

Sheehan Incorporated on brief for appellees Hasbro, Inc. and Alan

Hassenfeld. J. Richard Ratcliffe and Temkin & Associates Ltd. on

brief for appellees Israel and Miriam Laudon. William A.

Jacobson and Kaplan and Jacobson, Inc. on brief for appellee

David Thibodeau.

December 23, 1996

TORRUELLA, Chief Judge. Plaintiffs-appellants, H.P.
TORRUELLA, Chief Judge.

Leasing, Inc., and Patrick J. Doyle ("Doyle"), H.P. Leasing's

sole stockholder and President, brought this civil action against

Hasbro, Inc.; Alan Hassenfeld ("Hassenfeld"), Hasbro's President,

Chairman of the Board of Directors, and Chief Executive Officer;

Israel Laudon ("Laudon"), Vice President of Hasbro's Traffic

Department; Miriam Laudon, Laudon's wife; David Thibodeau,

Laudon's assistant; Hugh Maxwell, an Executive Vice President at

Hasbro; and Michael Oliva d/b/a Transport Services ("Oliva").

Plaintiffs claimed violation of the federal racketeering laws, 18

U.S.C. 1962(c) & (d) ("RICO"), as well as the following

violations of Massachusetts state law: breach of contract

against all defendants (Count I); civil conversion and civil

larceny against Laudon, Oliva and Thibodeau (Count II);

intentional and malicious interference with an advantageous

business relationship against Laudon, Oliva, and Thibodeau (Count

III); intentional infliction of emotional distress against

Laudon, Oliva, and Thibodeau (Count IV); fraud, deceit and

misrepresentation against Laudon, Thibodeau, Hassenfeld, and

Hasbro (Count V); and negligent entrustment or negligent

supervision against Hasbro (Count VI).

The district court dismissed the RICO claim and Counts

I through VI as to defendants Hassenfeld, Oliva, and Thibodeau.

Doyle v. Hasbro, 884 F. Supp. 35, 42 (D. Mass. 1995). In an

order dated May 4, 1995, the claims against Israel and Miriam

Laudon were also dismissed. The RICO claim against Hasbro was

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dismissed from the bench on March 27, 1995, see id. at 38-39, and

Counts I, V, and VI were also dismissed as to Hasbro.1 This

appeal followed.2

I. BACKGROUND
I. BACKGROUND

Plaintiffs' amended complaint alleges the following

facts. In August and September 1980, plaintiffs met with Laudon,

who agreed, on Hasbro's behalf, to retain the plaintiffs'

services for hauling and delivering freight. In October 1980,

Laudon required that Doyle pay to Oliva a "commission" of ten

percent of the traffic charges billed by H.P. Leasing. Doyle

acceded to Laudon's request, viewing the payments as a business

expense that would ensure a consistent volume of business. Doyle

was instructed by Laudon that receipt of the commissions was

necessary for the continuance of the contracts. Early in the

relationship, Laudon informed plaintiffs that business would

increase and that additional tractor-trailers would be required.

In reliance on these representations, plaintiffs purchased 28

tractors. The increase in business that materialized, however,

did not merit such expansion.

1 Doyle v. Hasbro, 884 F. Supp. 35, 42-43 (D. Mass. 1995),

dismissed Count V as to Hasbro only "to the extent liability is
premised on the conduct of Hassenfeld, Oliva, and Thibodeau," and
stated that the count may "proceed to the extent premised on the
conduct of the remaining defendants." Id. at 42-43. In its

order of May 4, 1995, however, the district court dismissed Count
V against Israel and Miriam Laudon, the remaining defendants,
implying that the claim against Hasbro must also be dismissed.

2 Plaintiffs-appellants have appealed only a subset of the
claims that were dismissed.

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As time went on, Oliva and Laudon reduced the volume of

business sent to H.P. Leasing. Between 1982 and 1985, H.P.

Leasing paid Laudon and Oliva commissions averaging $440,000 per

year, but from 1990 to 1992, these payments averaged only

$45,000.

Over the twelve years from 1980 to 1992, Laudon also

forced Doyle to pay for yearly Christmas parties for Hasbro

employees, to give gift certificates to Hasbro employees, to pay

for personal vacations for Laudon and his wife, and to pledge

$30,000 to the Holocaust Memorial. Doyle and his wife were

personally contacted, harassed and threatened during the period.

For example, Thibodeau, Laudon, and their wives would demand to

be taken out to dinner. These demands were accompanied by

comments such as "I own you" and "I can put you out of business

and you won't have a house to live in." Laudon, Thibodeau and

Hassenfeld worked closely together and were aware of each other's

conduct.

In 1992, Laudon informed plaintiffs that H.P. Leasing

ought to file for bankruptcy under Chapter 11 of the Bankruptcy

Code. He promised that Hasbro would support H.P. Leasing with a

minimum of $50,000 a week in revenue. Doyle felt he had no

choice, and, on March 12, 1992, H.P. Leasing filed for

bankruptcy. Defendants did not provide the support promised by

Laudon.

In June 1992, Doyle stopped making commission payments

to Laudon. Doyle perceived Hasbro's failure to award contracts

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to plaintiffs as a breach of the prior representations made to

him. In November 1992, Doyle met with Hassenfeld, who directed

that plaintiffs receive twenty to thirty thousand dollars per

week in business. In January 1993, plaintiffs received $28,000

in business from Hasbro. On January 27, 1993, H.P. Leasing was

closed for business.

II. STANDARD OF REVIEW
II. STANDARD OF REVIEW

We review the motion to dismiss de novo. Aulson v.

Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). We accept as true "all

well-pleaded factual averments and indulg[e] all reasonable

inferences in the plaintiff's favor." Id. Dismissal under

Federal Rule of Civil Procedure 12(b)(6) is appropriate if the

facts alleged, taken as true, do not justify recovery. Id. The

pleading requirement, however, is "not entirely a toothless

tiger." The Dartmouth Review v. Dartmouth College, 889 F.2d 13,

16 (1st Cir. 1989). "The threshold [for stating a claim] may be

low, but it is real." Gooley v. Mobile Oil Corp., 851 F.2d 513,

514 (1st Cir. 1988). In order to survive a motion to dismiss,

plaintiffs must set forth "factual allegations, either direct or

inferential, regarding each material element necessary to sustain

recovery." Id. at 515. Although all inferences must be made in

the plaintiffs' favor, this court need not accept "bald

assertions, unsupportable conclusions, periphrastic

circumlocutions, and the like." Aulson, 83 F.3d at 3.

In conducting our review of the case, we are limited to

those allegations contained in the amended complaint. This is

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true both as to facts, see Litton Indus., Inc. v. Col n, 587 F.2d

70, 74 (1st Cir. 1978) ("[O]ur focus is limited to the

allegations of the complaint. The question is whether a liberal

reading of [the complaint] can reasonably admit of a claim."

(internal quotations omitted)), and as to arguments, see McCoy v.

Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st Cir.

1991) ("It is hornbook law that theories not raised squarely in

the district court cannot be surfaced for the first time on

appeal."). We, therefore, do not consider factual allegations,

arguments, and claims that were not included in the amended

complaint.

III. THE RICO CLAIMS (COUNT VII)
III. THE RICO CLAIMS (COUNT VII)

We begin by considering plaintiffs-appellants' claims

under 18 U.S.C. 1962(c) and (d). Section 1962(c) reads:

It shall be unlawful for any person
employed by or associated with any
enterprise engaged in, or the activities
of which affect, interstate or foreign
commerce, to conduct or participate,
directly or indirectly, in the conduct of
such enterprise's affairs through a
pattern of racketeering activity or
collection of unlawful debt.

18 U.S.C. 1962(c). Section 1962(d) states that "[i]t shall be

unlawful for any person to violate any of the provisions of

subsections (a), (b), or (c) of this section." Id. 1962(d).

For the section 1962(c) claim to survive a motion to

dismiss, the amended complaint must allege: "(1) conduct (2) of

an enterprise (3) through a pattern (4) of racketeering

activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496

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(1985); see also Arzuaga-Collazo v. Oriental Fed. Sav. Bank, 913

F.2d 5, 5-6 (1st Cir. 1990). "In addition, the plaintiff only

has standing if, and can only recover to the extent that, he has

been injured in his business or property by the conduct

constituting the violation." Sedima, 423 U.S. at 496.

This court has held that under section 1962(c), "the

unlawful enterprise itself cannot also be the person the

plaintiff charges with conducting it." Arzuaga-Collazo, 913 F.2d

at 6; see also Odishelidze v. Aetna Life & Casualty Co., 853 F.2d

21, 23 (1st Cir. 1988) (per curiam); Schofield v. First Commodity

Corp. of Boston, 793 F.2d 28, 29-30 (1st Cir. 1986) (collecting

cases). In order to succeed, therefore, the complaint must

allege the existence of a "person" distinct from the

"enterprise."

We must, therefore, determine if the amended complaint

is sufficient to identify a "person" and an "enterprise." The

amended complaint is reasonably clear with respect to the

"person" requirement, stating that "all of said defendants are

'persons' within the meaning of this Act." Amended Complaint

62 (emphasis added). The only reasonable interpretation of this

statement includes all defendants: Hasbro, Hassenfeld, Israel

Laudon, Miriam Laudon, Hugh Maxwell, Thibodeau, and Oliva. Later

in the same paragraph, the complaint once again alleges that "all

defendants can be shown to be persons within the meaning of this

Act." Id. (emphasis added). In paragraph 64, where appellants

allege the section 1962(d) violation, the amended complaint

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states that "plaintiff is entitled to relief against all

defendants," (emphasis added) once again suggesting that each

defendant is, individually, identified as a "person" under the

Act.

The amended complaint fails to distinguish any subset

of the defendants in its section 1962(c) claim. Indeed,

plaintiffs-appellants do not mention any defendant by name in

paragraphs 61-63, in which the violation of section 1962(c) is

alleged. Thus, although appellants' brief would have us believe

that only Hasbro is a "person" for RICO purposes, the amended

complaint does not, even under a generous reading, support this

claim.

Although the amended complaint alleges the existence of

an enterprise, id. at 62, it never squarely identifies one. It

may be that a sympathetic reader could infer from the complaint

that Hasbro was the alleged RICO enterprise; this reading might

take support, for example, from the complaint's allegation that

"[d]efendant, Hasbro, Inc., is civilly liable under [ 1962(d)]

for an agreement of its officers to conduct the affairs of the

corporation in a manner which violates Section 1962(c) of the

RICO Act." Id. at 64. However, the possibility that the

plaintiffs considered Hasbro the "enterprise" is undermined by

the complaint's repeated contention that Hasbro is a RICO

"person." A RICO person cannot also serve as the RICO enterprise

that the person is allegedly conducting in violation of section

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1962(c). See Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44-45 (1st

Cir. 1991); Arzuaga-Collazo, 913 F.2d at 6.

More importantly, the plaintiffs do not argue on appeal

that Hasbro is the enterprise. Instead, they contend that their

own company, H.P. Leasing, is the enterprise. We decline to

rewrite the complaint language in order to find that plaintiffs

sufficiently identified Hasbro as a RICO enterprise when

plaintiffs do not even suggest as much on appeal. Rather,

holding plaintiffs to their present position, we look to the

complaint to see whether it can fairly be taken to bear the

meaning that plaintiffs now ascribe to it.

Unfortunately, no reasonable reading of the amended

complaint supports plaintiffs' current position that H.P. Leasing

is the enterprise. The complaint's only mention of H.P. Leasing

in connection with the RICO count appears to distinguish

plaintiff H.P. Leasing from the enterprise controlled by

defendants that allegedly caused H.P. Leasing injury. Amended

Complaint 63 ("The facts provided . . . above, allege a nexus

between the control of said enterprise, the racketeering

activity, and ultimately the injury to plaintiffs H.P. Leasing

and Pat Doyle."). We add that there is no indication that

plaintiffs' present position was ever advanced in the district

court. Cf. McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13,

22-23 (1st Cir. 1991), cert. denied, 504 U.S. 910 (1992).

The complaint's failure to identify any enterprise,

distinct from a named person defendant, is fatal under RICO. But

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we think it worth adding, although we do not formally decide the

point, that the claim appears remarkably weak in a quite

different respect. To prevail under section 1962(c), a complaint

must "establish a causal relationship between the racketeering

predicates and [the] asserted injury." Miranda, 948 F.2d at 46-

47. Here, if there had been no bribes, we have no reason to

think that plaintiffs would have gotten any Hasbro business at

all.

We conclude, therefore, that plaintiffs-appellants fail

to meet the bare requirements of a RICO claim under sections

1962(c) and (d). Because we find that the RICO count must be

dismissed for failure to state a claim, we need not address the

other issues raised in plaintiffs-appellants' brief regarding the

RICO claim.3 For the foregoing reasons, the dismissal of the

RICO claim is affirmed.

IV. THE STATE LAW CLAIMS
IV. THE STATE LAW CLAIMS

A. Negligence (Count VI)
A. Negligence (Count VI)

Count VI alleges "negligent entrustment or negligent

supervision" by Hasbro. We will deal with the two claims

separately.

The tort of negligent entrustment is normally used in

cases in which a defendant has entrusted a motor vehicle to an

incompetent driver, resulting in injury. See, e.g., Mitchell v.

3 For example, the question of whether Schofield v. First

Commodity Corp. of Boston, 793 F.2d 28 (1st Cir. 1986) (limiting

the circumstances under which corporate liability can attach in a
RICO action), applies to the facts of this case need not be
decided.

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Hastings & Koch Enters., Inc., 647 N.E.2d 78, 82-84 (Mass. App.

Ct. 1995); Kunkel v. Alger, 406 N.E.2d 402, 407 (Mass. App. Ct.

1980). The tort has also been applied to suppliers. A "supplier

may be liable for harm caused after the supplier has knowingly

placed property in the hands of an incompetent person." Kyte v.

Philip Morris, Inc., 556 N.E.2d 1025, 1029 (Mass. 1990).

Plaintiffs-appellants would have us apply the doctrine

to the instant case. They have not offered, and our own research

has failed to uncover, any cases from Massachusetts or elsewhere

in this circuit, applying the doctrine to facts that resemble

those at bar.4

The question for this court, therefore, is whether we

should expand the present reach of the tort of negligent

entrustment, as used in Massachusetts, to include this case. To

do so would require a novel use of the doctrine which we decline

to adopt. The relationship between a firm and its employees is

very different from the relationships usually at issue in

negligent entrustment cases. The latter normally involve a

parent or other adult entrusting a minor or incompetent person

with a motor vehicle or some other instrumentality. "An action

for negligent entrustment involves a person's duty to keep a

dangerous instrumentality out of a child's reach." Id. at 1036.

While it may be possible to point to similarities between the

4 Plaintiffs-appellants muster only a single district court case
in support of their claim, Bernstein v. IDT Corp., 582 F. Supp.

1079 (D. Del. 1984). Although that case has certain similarities
to the case at bar, we are not bound by its holding.

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current application of the doctrine and the one advocated by

plaintiffs-appellants, we believe that the differences are much

more striking.

Furthermore, plaintiffs-appellants offer no convincing

argument showing why the application of the doctrine in this

context would be desirable. Indeed, their brief offers no

reasons whatsoever why this court should extend the doctrine.

Because the question before us is one of state law, we must

exercise considerable caution when considering the adoption of a

new application. "[A]s a federal court hearing this state law

issue under our supplemental jurisdiction, we are reluctant to

extend [state] law beyond its well-marked boundaries." Andrade

v. Jamestown Housing Auth., 82 F.3d 1179, 1186-87 (1st Cir. 1996)

(citations omitted). Without a powerful argument for the

extension of the doctrine, we are, therefore, unwilling to apply

the doctrine of negligent entrustment in a novel fashion.

For the above reasons, we affirm the dismissal of

plaintiffs-appellants' negligent entrustment claim.

We now turn to the negligent supervision claim. The

district court found that plaintiffs-appellants failed to provide

any case law suggesting that the doctrine of negligent

supervision reaches the instant case. Doyle, 884 F. Supp. at 42.

We need not decide that issue here, however, because the claim

fails on other grounds. The plaintiffs-appellants' theory on

appeal is that "had plaintiffs been dealing with competent,

responsible and honest Hasbro employees, H.P. Leasing would have

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simply shipped goods, made a profit, and there would be no issues

to litigate." Appellants' Brief at 36. This theory, however, is

contradicted by the amended complaint, which alleges that the

commissions, or kickbacks, were paid within a month or two of the

start of the relationship between the parties and that plaintiff

believed the payments "would insure a consistent volume of

business." Plaintiffs would be entitled to damages only if they

alleged that they would have received Hasbro's business in the

absence of kickbacks. If H.P. Leasing was awarded the business

only because it agreed to the kickback scheme, and, therefore,

earned profits that it would not have earned without the scheme,

it cannot claim damages when the scheme comes to an end.

Plaintiffs, however, make no claims to the effect that proper

supervision by Hasbro would have left plaintiffs-appellants in a

better position. There is no evidence that H.P. Leasing would

have received any business from Hasbro in the absence of the

kickback scheme. It is not sufficient for the purposes of

stating a claim for damages that the benefits derived from the

illegal kickbacks have disappeared. Because no damages are

alleged, plaintiffs-appellants have failed to state a claim for

negligent supervision.

For the foregoing reasons, we affirm the dismissal of

Count VI.

B. Fraud, Deceit, and Misrepresentation (Count V)
B. Fraud, Deceit, and Misrepresentation (Count V)

Count V of the complaint alleges that the conduct of

defendants Laudon, Thibodeau, Hassenfeld and Hasbro constituted

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"fraud, deceit and misrepresentations." Amended Complaint at

54. In order to state a claim for fraudulent misrepresentation,

the plaintiff must allege:

(1) that the statement was knowingly false; (2)
that [defendants] made the false statement with the
intent to deceive; (3) that the statement was
material to the plaintiffs' decision . . .; (4)
that the plaintiffs reasonably relied on the
statement; and (5) that the plaintiffs were injured
as a result of their reliance.

Turner v. Johnson & Johnson, 809 F.2d 90, 95 (1st Cir. 1986); see

also Danca v. Taunton Sav. Bank, 429 N.E.2d 1129, 1133 (Mass.

1982).

With respect to Hassenfeld, plaintiffs allege that in

November 1992, he "directed that plaintiffs receive $20,000.00 to

$30,000.00 per week in business from the defendant, Hasbro, Inc."

Amended Complaint 37. Hassenfeld also promised that Doyle's

son, the owner of a contract carrier in the State of Washington,

"would be taken care of and would continue to do business with

Hasbro." Amended Complaint 41. In both cases, the complaint

suggests that Hassenfeld's comments were "an effort to right the

wrong done to plaintiffs," amended complaint 37, or to "make

amends," amended complaint 41.

Several of the required elements of common law fraud

are absent from these allegations. First, there is no allegation

that Hassenfeld's statements were knowingly false. In fact, the

complaint states that the promises were an "effort to right a

wrong done to plaintiffs," suggesting that Hassenfeld intended to

keep these promises. Second, there is no allegation that the

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statements were made with an intent to deceive. Finally, neither

reliance nor injury is alleged.

The district court also dismissed the claims of fraud

against Laudon and Thibodeau. Because plaintiffs-appellants have

failed to argue for the reversal of these dismissals on their

appeal, we do not review them here.

There remains the questions of whether plaintiffs have

claimed that defendants Hassenfeld, Thibodeau, and Oliva were

part of a larger conspiracy to defraud and whether a claim of

fraud is made against Hasbro. The district court ruled that "the

conclusory allegations throughout the amended complaint are

insufficient under Fed. R. Civ. P. 9(b)'s strict requirement

that fraud be pled with particularity." Doyle, 884 F. Supp. at

41. Appellants respond that notice is the principal purpose of

any pleading, including fraud, and Rule 9(b) "does not require

the claimant to set out in detail all of the facts upon which he

bases his claim, nor does it require him to plead detailed

evidentiary matters." Collins v. Rukin, 342 F. Supp. 1282, 1292

(D. Mass. 1972).

There is a well-developed body of case law surrounding

the application of Rule 9(b) in this circuit.5 See, e.g.,

5 Rule 9 reads, in relevant part:

(b) In all averments of fraud or mistake,
the circumstances constituting fraud or
mistake shall be stated with
particularity. Malice, intent,
knowledge, and other condition of mind of
a person may be averred generally.

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Serabian v. Amoskeag Bank Shares, Inc., 24 F.3d 357, 361 (1st

Cir. 1994); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 878

(1st Cir. 1991); New England Data Servs. Inc. v. Becher, 829 F.2d

286, 288-90 (1st Cir. 1987); Wayne Inv. Inc. v. Gulf Oil Co., 739

F.2d 11 (1st Cir. 1984). In New England Data Services, we held

that the case law interpreting and applying Rule 9 in cases

dealing with general fraud and securities fraud applies to RICO

cases. The "degree of specificity [in RICO cases] is no more nor

less than we have required in general fraud and securities

cases." 829 F.2d at 290.

Rule 9 imposes a heightened pleading requirement for

allegations of fraud in order to give notice to defendants of the

plaintiffs' claim, to protect defendants whose reputation may be

harmed by meritless claims of fraud, to discourage "strike

suits," and to prevent the filing of suits that simply hope to

uncover relevant information during discovery. See McGuinty v.

Beranger Volkswagen, Inc., 633 F.2d 226, 228-29 & n.2 (1st Cir.

1980).

In McGuinty, this court stated that "[t]he clear weight

of authority is that Rule 9 requires specification of the time,

place, and content of an alleged false representation, but not

the circumstances or evidence from which fraudulent intent could

be inferred." Id. at 228. "[M]ere allegations of fraud,

corruption or conspiracy, averments to conditions of mind, or

referrals to plans and schemes are too conclusional to satisfy

Fed. R. Civ. P. 9(b).

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the particularity requirement, no matter how many times such

accusations are repeated." Hayduk v. Lanna, 775 F.2d 441, 444

(1st Cir. 1985) (citations omitted).

We agree with the district court that the allegations

of conspiracy included in the amended complaint are insufficient

to satisfy the requirements of Rule 9(b). The complaint simply

states that the defendants:

worked closely together and were aware of
the others' conduct. These defendants
conspired to use H.P. Leasing for the
benefit of Hasbro and their own personal
financial gain. It is not certain what
the specifics of the conspiracy entailed
or how exactly defendants Thibideau [sic]
and Hassenfeld benefited from that
conspiracy.

Amended Complaint 24. Elsewhere in the Amended Complaint,

these conclusory allegations are repeated: "defendants worked

together to shut down H.P. Leasing," Amended Complaint 28;

"all defendants were suddenly acting to terminate H.P. Leasing,"

Amended Complaint 38. The amended complaint includes no

specification of the time, place, and content of an alleged false

representation as required by McGuinty. In addition, no claim

can survive as against Hasbro in light of the fact that no claim

has been made against any of the other defendants through whom

Hasbro could act.

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Because the plaintiffs-appellants have failed to meet

the requirements of Rule 9, we affirm the district court's

dismissal of Count V as against Hassenfeld and Hasbro.6

C. Breach of Contract (Count I)
C. Breach of Contract (Count I)

In order to sustain Count I's breach of contract claim,

plaintiffs must plead: (1) that the parties had an agreement

supported by valid consideration; (2) that plaintiffs were ready,

willing and able to perform; (3) that defendant's breach has

prevented them from performing; and (4) that plaintiffs were

damaged. See Singarella v. City of Boston, 173 N.E.2d 290, 291

(Mass. 1961); Petricca v. Simpson, 862 F. Supp. 13, 17 (D. Mass.

1994). Plaintiffs-appellants are mistaken in their belief that

they "need no more than to allege that the facts [demonstrate a]

breach of that contractual relationship." Appellants' Brief at

40. "[I]t is essential to state with 'substantial certainty' the

facts showing the existence of the contract and the legal effect

thereof." Pollock v. New England Tel. & Tel. Co., 194 N.E. 133,

136 (Mass. 1935). Appellants fail to do so.

The amended complaint fails to state the nature of the

alleged contract with any specificity. There is no presentation

of the terms of a contract, its duration, or even when it was

formed. Nor does the Amended Complaint explain what obligations

were imposed on each of the parties by the alleged contract. It

6 The district court states that "Count V must be dismissed
against Thibodeau and Oliva as well [as Hassenfeld]." Doyle, 884

F. Supp. at 41. The Amended Complaint does not, however, allege
that Oliva has committed fraud, and, therefore, he is not
implicated in our discussion.

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does not plead that plaintiffs were ready to perform under the

contract or that the defendants' breach prevented them from

performing, and it does not identify the damages attributable to

the breach. Conclusory statements that "Hasbro and its

executives failed to meet their contractual requirement," amended

complaint 34, are insufficient to satisfy the pleading

requirements.

Because appellants have failed to state a claim for

breach, we need not address the argument made in their brief that

the alleged contract was, in fact, an at-will employment contract

and that it was breached in bad faith. Nor do we address the

question of whether the individual defendants are shielded from

liability on the ground that an agent for a disclosed principal

cannot be personally liable for the principal's conduct. See

Doyle, 884 F. Supp. at 39.

For the foregoing reasons, we affirm the dismissal of

the breach of contract claim.

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D. Intentional Infliction of Emotional Distress
D. Intentional Infliction of Emotional Distress

(Count IV)
(Count IV)

Count IV of the amended complaint alleges a claim of

intentional infliction of emotional distress against Laudon,

Oliva, and Thibodeau.7 The relevant requirements for this claim

in Massachusetts were set forth in Agis v. Howard Johnson Co.,

355 N.E.2d 315 (Mass. 1976). A claim for intentional infliction

of emotional distress requires "(1) that the actor intended to

inflict emotional distress or that he knew or should have known

that emotional distress was the likely result of [the] conduct;

(2) that the conduct was 'extreme and outrageous,' was 'beyond

all possible bounds of decency' and was 'utterly intolerable in a

civilized community;' (3) that the actions of the defendant were

the cause of the plaintiff's distress; and (4) that the emotional

distress sustained by the plaintiff was 'severe' and of a nature

'that no reasonable [person] could be expected to endure it.'"

Id. at 318-19 (citations omitted). The standard for making a

claim of intentional infliction of emotional distress is very

high in order to "avoid[] litigation in situations where only bad

manners and mere hurt feelings are involved." Id. at 319.

Recovery on such a claim requires more than "that the defendant

has acted with an intent which is tortious or even criminal, or

that he has intended to inflict emotional distress, or even that

his conduct has been characterized by 'malice' or a degree of

aggravation which would entitle the plaintiff to punitive damages

7 Plaintiffs-appellants have not appealed the dismissal of this
claim against Oliva.

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for another tort." Foley v. Polaroid Corp., 508 N.E.2d 72, 82

(Mass. 1986).

We agree with the district court that "[a]ssuming the

truth of all the allegations in the amended complaint, the

conduct complained of does not as a matter of law amount to

extreme and outrageous behavior beyond all possible bounds of

decency and which are utterly intolerable in a civilized

community." Doyle, 884 F. Supp. at 40 (citations omitted). "Nor

has Doyle even attempted to plead severe distress of a nature

that no reasonable [person] could be expected to endure it." Id.

Accordingly, we affirm the dismissal of the claim of

intentional infliction of emotional distress.

E. Interference with Advantageous Business
E. Interference with Advantageous Business

Relationships (Count III)
Relationships (Count III)

Count III of the amended complaint alleges "intentional

and malicious interference with the plaintiffs' advantageous

business relationships" against Laudon, Oliva, and Thibodeau.8

Amended Complaint 50. The elements of the tort of interference

with an advantageous relationship include: "(1) a business

relationship or contemplated contract of economic benefit; (2)

the defendant's knowledge of such relationship; (3) the

defendant's interference with it through improper motive or

means; and (4) the plaintiff's loss of advantage directly

resulting from the defendant's conduct." American Private Line

Servs., Inc. v. Eastern Microwave, Inc., 980 F.2d 33, 36 (1st

8 Plaintiffs-appellants have not appealed the dismissal of this
claim as against Oliva.

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Cir. 1992) (citing United Truck Leasing Corp. v. Geltman, 511

N.E.2d 20 (Mass. 1990)).

Implicit in the above requirements for intentional

interference in a business relationship is that the relationship

be lawful. See Chemewa Country Golf, Inc. v. Wnuk, 402 N.E.2d

1069, 1072 (Mass. App. Ct. 1980) (requiring that the complained-

of acts be "calculated to cause damage to the plaintiffs in their

lawful business" (emphasis added)). Plaintiffs-appellants argue

that defendants-appellees interfered with a business relationship

that consisted of allegedly unlawful kickbacks in exchange for

business. As such, the business relationship in question was not

lawful, and plaintiffs cannot recover on their claim.

Accordingly, we affirm the district court's dismissal

of Count III against Laudon and Thibodeau.

V. CONCLUSION
V. CONCLUSION

For the reasons discussed herein, we affirm the

district court's dismissal on all claims appealed by plaintiffs-

appellants: the RICO count against all defendants, Count I

against all defendants, Counts III and IV against Laudon and

Thibodeau, Count V against Hasbro and Hassenfeld (and noting that

plaintiffs-appellants failed to raise the liability of Laudon and

Thibodeau), and Count VI against Hasbro.

Finally, we note that plaintiffs-appellants have filed

an overly long brief. Although the brief is less than the

permissible fifty pages, it is not double spaced as required,

Fed. R. App. Proc. 32(a), making the effective length of the

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brief considerably longer. Additionally, we are able to find no

reason for the length of the brief. Despite the extra length,

the brief failed to adequately present the claims of appellants

or even to clearly identify the claims being appealed. See In re

M.S.V., Inc., 892 F.2d 5, 6 (1st Cir. 1989) ("[W]hether or not we

grant permission to file an overly long brief, we may assess

special costs if we subsequently conclude that the extra length

was unnecessary and did not help."). "We believe it appropriate

to discourage the filing of excessively long briefs in this

court," id., and we believe it appropriate to discourage parties

from attempting to flaunt the page limits by submitting briefs

with improper line spacing. Accordingly, we assess double costs

against appellants.

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