Rodi v. Southern New England School of Law

United States Court of Appeals
For the First Circuit

No. 03-2502

JOSEPH RODI,

Plaintiff, Appellant,

v.

SOUTHERN NEW ENGLAND SCHOOL OF LAW ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Selya and Howard,

Circuit Judges.

Fredric J. Gross and Fredric J. Gross Law Firm on brief for
appellant.
Allen N. David, Elizabeth A. Houlding and Peabody & Arnold LLP
on brief for appellees.

November 10, 2004
 SELYA, Circuit Judge. This is an appeal from a terse and

uninformative order dismissing a nine-count civil complaint for

failure to state a claim upon which relief might be granted.

Because it is impossible to tell what arguments the district court

found persuasive, we have canvassed the field. We conclude that

the complaint states one potentially actionable claim and another

that is not beyond hope of repair. Consequently, we reverse the

order of dismissal in part and remand for further proceedings.

I. BACKGROUND

Because this is an appeal from an order under Fed. R.

Civ. P. 12(b)(6), we take the facts as they are alleged in the

plaintiff's complaint.1 SEC v. SG Ltd., 265 F.3d 42, 44 (1st Cir.

2001); LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508

(1st Cir. 1998). We ignore, however, "bald assertions,

periphrastic circumlocutions, unsubstantiated conclusions, [and]

outright vituperation." Correa-Martinez v. Arrillaga-Belendez, 903

F.2d 49, 52 (1st Cir. 1990). Once the scene is set, we recount the

travel of the case.

A. The Facts.

In July of 1997, plaintiff-appellant Joseph Rodi, a

would-be law student who resided in New Jersey, received a

1
Although the parties submitted affidavits in the district
court, we eschew any reliance on the factual averments contained
therein, with a few exceptions that we elucidate below. We explain
why in Part II(A), infra.

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recruitment letter from Francis J. Larkin, dean of Southern New

England School of Law (SNESL). The letter stated in pertinent part

that the accreditation committee of the American Bar Association

(ABA) had voted to recommend SNESL for "provisional accreditation,"

a status that would be granted upon ratification of the

recommendation by two other ABA bodies. The letter also stated

that SNESL was "highly confident" of receiving the needed

ratifications and that the future of the school "has never been

brighter." Because the plaintiff intended to take the New Jersey

bar examination, the prospect of accreditation was critically

important to him; New Jersey requires bar applicants to hold law

degrees from ABA-accredited institutions.

Larkin's letter ended with a pitch for enrollment. The

solicitation bore fruit; the plaintiff enrolled at SNESL that

month. He received a catalogue from SNESL containing, inter alia,

a statement (in the same type size and font as the surrounding

text) to the effect that: "The Law School makes no representation

to any applicant or student that it will be approved by the

American Bar Association prior to the graduation of any

matriculating student." The complaint alleges that, despite the

cheery optimism of Larkin's letter, the dean knew full well that

SNESL had identifiable deficiencies that would almost certainly

preclude ABA accreditation.

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 The ABA denied SNESL's application for accreditation in

September of 1997. As a result, the plaintiff considered

transferring to an accredited law school for his second year of

study. Word of his ambivalence reached the dean's office. David

M. Prentiss, who was then the acting dean, wrote to the plaintiff

in order to "make sure" that he was "fully informed of the school's

current status regarding ABA accreditation." That communique

stated in substance that the school had improved the four areas

found deficient by the ABA and that there should be "no cause for

pessimism" about the school achieving accreditation before the

plaintiff's forecasted graduation date.

In reliance on these and other representations — all of

which the complaint says were knowingly false — the plaintiff

remained at SNESL. He came to regret the choice: according to the

complaint, SNESL knew, but elected not to disclose, that the ABA

was highly critical of SNESL; that any faint hope of attaining

accreditation depended upon a complete overhaul of the faculty,

administration, curriculum, and student body; and that the level of

non-compliance made the prospect of SNESL's near-term accreditation

remote. To compound this mendacity, the school frustrated

students' attempts to learn about the true status of the

accreditation pavane.

In November of 1999 — during the plaintiff's third year

of legal studies — the ABA denied SNESL's renewed application for

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accreditation. SNESL failed to appeal to the ABA's House of

Delegates as it previously had promised. Instead, the school

cashiered half of its full-time faculty, thereby straying even

further from ABA-mandated standards.

The plaintiff completed his studies in June of 2000.

SNESL remained unaccredited. Notwithstanding his diploma, the

plaintiff has not been able to sit for the New Jersey bar

examination.

B. Travel of the Case.

On July 18, 2002, the plaintiff sued SNESL, Larkin, and

Prentiss in the United States District Court for the District of

New Jersey. The district court dismissed that action for want of

in personam jurisdiction on April 10, 2003. Rodi v. S. New Engl.

Sch. of Law, 255 F. Supp. 2d 346, 351 (D.N.J. 2003). On June 9,

2003, the plaintiff, acting pro se, sued the same defendants in the

United States District Court for the District of Massachusetts.

Grounding jurisdiction in diversity of citizenship and the

existence of a controversy in the requisite amount, 28 U.S.C. §

1332(a), his complaint incorporated copies of the Larkin and

Prentiss letters and limned nine statements of claim.

We confine our discussion to the two claims that the

plaintiff presses on appeal: (i) that the defendants' statements

constituted actionable fraud or misrepresentation, and (ii) that

SNESL's actions violated a consumer protection statute, Mass. Gen.

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Laws ch. 93A, §§ 1-11. The defendants filed a timely motion to

dismiss, positing that the complaint, for a variety of reasons,

failed to state a claim upon which relief could be granted. As to

the fraudulent misrepresentation count, the defendants asseverated

that the "misrepresentations" were non-actionable statements of

opinion; that the supposed fraud had not been alleged with the

requisite particularity; that, in all events, the plaintiff's

professed reliance on those statements was unreasonable; and that

the statute of limitations had run. With respect to the Chapter

93A count, the defendants averred that the complaint failed to

state an actionable claim because the alleged misrepresentations

were insufficient to trigger the prophylaxis of the statute, and,

moreover, the complaint failed to allege that a demand letter had

been sent before suit. See Mass. Gen. Laws ch. 93A, § 9(3).

The plaintiff, still acting pro se, filed an opposition

to the motion to dismiss in which he made a point-by-point rebuttal

of the defendants' asseverations. As part of his opposition, he

tendered five affidavits, two additional letters, and an array of

other documents. SNESL filed a reply and, not to be outdone,

proffered a welter of documents (including copies of its catalogues

for the years in question).

The district court abjured oral argument and ruled on the

papers. It entered a cryptic order, providing in its entirety that

the motion to dismiss should be allowed "for substantially the

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reasons outlined in defendants' memorandum of law." The plaintiff

promptly moved for reconsideration, suggesting, among other things,

that if the district court "found the complaint's allegations too

scanty, it could have granted leave to amend." The court denied

the motion without comment. This counseled appeal ensued.

II. DISCUSSION

We divide our discussion of the issues into several

segments. First, we ascertain what materials are properly before

us. We then proceed count by count and theory by theory. In so

doing, we omit any reference to the seven counts that the plaintiff

has elected not to defend on appeal.

A. Configuring the Record.

The threshold issue here involves a determination of what

legal standard the district court applied (or should have applied)

in examining the pleadings before it. The defendants styled their

motion as a motion to dismiss, but the parties then proffered

exhibits containing information extraneous to the complaint. That

presents a quandary.

The Civil Rules provide that when "matters outside the

pleadings are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed of

as provided in Rule 56." Fed. R. Civ. P. 12(b). The district

court's order is silent as to whether it elected to convert the

motion to a motion for summary judgment. Consequently, we must

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decide "whether the court actually took cognizance of [the

supplemental material], or invoked Rule 56, in arriving at its

decision." Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, 958 F.2d

15, 19 (1st Cir. 1992).

The state of this record is tenebrous. We do know,

however, that the district court embraced the defendants'

memorandum of law — and that memorandum relied upon the Rule

12(b)(6) standard, not the quite different Rule 56 standard. In

the same vein, both sides have briefed the case on appeal as if

Rule 12(b)(6), rather than Rule 56, controls. Under the unique

circumstances of this case, considerations of fundamental fairness

counsel in favor of following the parties' and the lower court's

lead and testing the arguments on appeal under the jurisprudence of

Rule 12(b)(6). We adopt that course.

Once that decision has been made, the standard of review

becomes straightforward. Orders granting motions to dismiss under

Rule 12(b)(6) engender de novo review. Mass. Sch. of Law at

Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 40 (1st Cir. 1998).

In ruling on whether a plaintiff has stated an actionable claim, an

inquiring court, be it a trial or appellate court, must consider

the complaint, documents annexed to it, and other materials fairly

incorporated within it. In re Colonial Mortg. Bankers Corp., 324

F.3d 12, 15-16 (1st Cir. 2003); Cogan v. Phoenix Life Ins. Co., 310

F.3d 238, 241 n.4 (1st Cir. 2002). This sometimes includes

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documents referred to in the complaint but not annexed to it. See

Coyne v. Cronin, ___ F.3d ___, ___ (1st Cir. 2004) [No. 03-2357,

slip op. at 11]; Beddall v. State St. Bank & Trust Co., 137 F.3d

12, 17 (1st Cir. 1998); Fudge v. Penthouse Int'l, Ltd., 840 F.2d

1012, 1015 (1st Cir. 1988). Finally, the jurisprudence of Rule

12(b)(6) permits courts to consider matters that are susceptible to

judicial notice. Colonial Mortg. Bankers, 324 F.3d at 15-16;

Boateng v. InterAmerican Univ., 210 F.3d 56, 60 (1st Cir. 2000).

Giving force to these principles, we may consider on this

appeal the facts alleged in the complaint, the Larkin and Prentiss

letters (which were annexed to it), and any matters that may be

judicially noticed. We also may consider SNESL's 1997-1998

catalogue, alleged by the plaintiff to comprise a part of the

contract between the parties, as a document fairly incorporated

into the complaint. See Beddall, 137 F.3d at 17. However, we may

not consider at this stage the array of affidavits and

miscellaneous documents proffered by the parties.

Having identified the materials that are properly before

us, we briefly address the question of affirmative defenses. On a

Rule 12(b)(6) motion, the court's inquiry sometimes may encompass

affirmative defenses. Everything depends on the record. As a

general rule, a properly raised affirmative defense can be

adjudicated on a motion to dismiss so long as (i) the facts

establishing the defense are definitively ascertainable from the

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complaint and the other allowable sources of information, and (ii)

those facts suffice to establish the affirmative defense with

certitude. Colonial Mortg. Bankers, 324 F.3d at 16.

Against this backdrop, we examine the bases on which the

district court could have predicated its decision. We take each

count and each ground in turn.

B. The Fraudulent Misrepresentation Count.

The defendants advance a motley of potential defenses to

the plaintiff's fraudulent misrepresentation claim. We address

them sequentially.

1. In General. We start by testing the vitality of the

claim as a whole. We will uphold a dismissal on this ground "only

if the plaintiff's factual averments hold out no hope of recovery

on any theory adumbrated in [his] complaint." Id. at 15 (citing

Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). Our task is not

to decide whether the plaintiff ultimately will prevail but,

rather, whether he is entitled to undertake discovery in

furtherance of the pleaded claim. Scheuer v. Rhodes, 416 U.S. 232,

236 (1974). In this process, the fact that the plaintiff filed the

complaint pro se militates in favor of a liberal reading. See

Boivin v. Black, 225 F.3d 36, 43 (1st Cir. 2000) (explaining that

"courts hold pro se pleadings to less demanding standards than

those drafted by lawyers").

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 Sitting in diversity, we look to the substantive law of

the forum state (here, Massachusetts) to guide our analysis.

Correia v. Fitzgerald, 354 F.3d 47, 53 (1st Cir. 2003). Under

Massachusetts law, a claim for misrepresentation entails a false

statement of material fact made to induce the plaintiff to act and

reasonably relied upon by him to his detriment. Zimmerman v. Kent,

575 N.E.2d 70, 74 (Mass. App. Ct. 1991). The plaintiff's claim

passes this screen.

As to Larkin, the complaint, read liberally, alleges the

following: (i) Larkin knew that the plaintiff was a New Jersey

resident who wanted to practice law there; (ii) he also knew that

the plaintiff could not sit for the New Jersey bar unless he

graduated from an accredited law school; (iii) he sent a letter to

the plaintiff in New Jersey stating that SNESL was "highly

confident" of receiving accreditation, knowing that this statement

was materially false because SNESL had substantial deficiencies

that would make accreditation difficult if not impossible; and (iv)

the plaintiff, relying on Larkin's letter, enrolled at SNESL, paid

substantial sums for tuition, and invested three years of his life

in mastering its curriculum. We think that these allegations, if

proven, would make out a viable claim for fraudulent

misrepresentation. See Kerr v. Shurtleff, 105 N.E. 871, 872 (Mass.

1914) (holding that college committed fraudulent misrepresentation

by falsely telling prospective student that it could "make [him] a

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D.M.D." when student enrolled and graduated but school lacked the

authority to grant the degree).

A similar analysis applies to the plaintiff's fraudulent

misrepresentation claim against Prentiss. Prentiss's statement

that there was "no cause for pessimism" about the prospect of near-

term accreditation is materially false if there was in fact cause

for pessimism due to the extent of the school's known shortcomings.

The plaintiff alleges that Prentiss knowingly made this false

statement in order to induce him to remain enrolled at SNESL and

that he (Rodi) took the bait and relied on it to his detriment.

As pleaded, SNESL is vicariously liable for these

fraudulent misrepresentations. It is reasonable to infer from the

allegations contained in the complaint that Larkin and Prentiss

were high-ranking employees of SNESL acting within the scope of

their employment. Consequently, their misrepresentations are

attributable to SNESL on respondeat superior grounds. See

generally Kavanagh v. Trs. of Boston Univ., 795 N.E.2d 1170, 1174

(Mass. 2003) (citing Restatement (Third) of Agency § 2.04 (Tent.

Draft No. 2, 2001)). Accordingly, the complaint, on its face,

states a claim for fraudulent misrepresentation against all three

defendants.

2. Matters of Opinion. The defendants' effort to short-

circuit this claim is multifaceted. Their first counter is that

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the cited statements were, at most, statements of opinion. That is

true, in a sense, but it does not get the defendants very far.

A statement, though couched in terms of opinion, may

constitute a statement of fact if it may reasonably be understood

by the reader or listener as implying the existence of facts that

justify the statement (or, at least, the non-existence of any facts

incompatible with it). See McEneaney v. Chestnut Hill Realty

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

Restatement (Second) of Torts § 539 (1977) (explaining that "[a]

statement of opinion as to facts not disclosed [may] be interpreted

. . . as an implied statement that the facts known to the maker are

not incompatible with his opinion"); cf. Levinsky's, Inc. v. Wal-

Mart Stores, Inc., 127 F.3d 122, 127 (1st Cir. 1997) ("A statement

couched as an opinion that presents or implies the existence of

facts which are capable of being proven true or false can be

actionable."). Thus, it is an actionable misrepresentation for a

corporation falsely to tell investors that a specific project is "a

great success" that is "proceeding smoothly . . . and better than

expected" in order to keep them from pulling the plug. Stolzoff v.

Waste Sys. Int'l, Inc., 792 N.E.2d 1031, 1036-37, 1042 (Mass. App.

Ct. 2003). Similarly, it is an actionable misrepresentation for a

car dealer to tell a buyer that he "believes" a vehicle is in

"good" condition when he knows that it has significant mechanical

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defects. Briggs v. Carol Cars, Inc., 553 N.E.2d 930, 933 (Mass.

1990).

The Restatement, favorably referenced in the

Massachusetts cases, gives a stunningly appropriate example:

[W]hen an auditor who is known to have
examined the books of a corporation states
that it is in sound financial condition, he
may reasonably be understood to say that his
examination has been sufficient to permit him
to form an honest opinion and that what he has
found justifies his conclusion. The opinion
thus becomes in effect a short summary of
those facts. When he is reasonably understood
as conveying such a statement, he is subject
to liability if he . . . has not found facts
that justify the opinion, on the basis of his
misrepresentation of the implied facts.

Restatement (Second) of Torts § 539, cmt. b. The parallel is

apparent. The plaintiff's complaint alleges that the ABA has

formulated certain objective criteria that inform its decisions

about whether and when to accredit law schools. It also alleges

that Larkin, knowing of these criteria, wrote a letter to the

plaintiff implying that the school was reasonably capable of

satisfying them. If Larkin did know of disqualifying and probably

irremediable deficiencies (as the plaintiff has alleged), his

statement that SNESL was "highly confident" of accreditation was

actionably misleading. Prentiss's statement that there was "no

cause for pessimism" about the fate of the school's renewed

accreditation application is subject to much the same analysis.

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 To be sure, knowing falsity is much easier to allege than

to prove. Here, however, the district court jettisoned the

fraudulent misrepresentation count at the pleading stage. Given

the liberal standards of Rule 12(b)(6), that dismissal cannot rest

on the "opinion" defense.

3. Failure to Plead With Particularity. For the most

part, a civil complaint need only contain "a short and plain

statement of the claim showing that the pleader is entitled to

relief." Fed. R. Civ. P. 8(a)(2). For that reason, "[g]reat

specificity is ordinarily not required to survive a Rule 12(b)(6)

motion." Garita Hotel, 958 F.2d at 17. That proposition, however,

is not universally applicable. "Cases alleging fraud — and for

this purpose, misrepresentation is considered a species of fraud —

constitute an exception to [it]." Alternative Sys. Concepts, Inc.

v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004). That

exception, codified in Fed. R. Civ. P. 9(b), requires that fraud be

alleged with particularity. Id. This heightened pleading standard

is satisfied by an averment "of the who, what, where, and when of

the allegedly false or fraudulent representation." Id.; accord

Powers v. Boston Cooper Corp., 926 F.2d 109, 111 (1st Cir. 1991);

McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228-29 & n.2

(1st Cir. 1980).

In this instance, the defendants assert that the district

court was warranted in dismissing the fraudulent misrepresentation

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claim for failure to abide by these strictures. In addressing that

assertion, we note that the specificity requirement extends only to

the particulars of the allegedly misleading statement itself. See

Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66

(1st Cir. 2004). The other elements of fraud, such as intent and

knowledge, may be averred in general terms. See Fed. R. Civ. P.

9(b).

After careful perscrutation, we deem this line of defense

unavailing. The Larkin and Prentiss letters are unarguably

specific as to speaker, content, context, and time. These

statements are sufficient to shield the fraudulent

misrepresentation count from dismissal at the pleading stage. See,

e.g., Powers, 926 F.2d at 111; see also Philippe v. Shape, Inc.,

688 F. Supp. 783, 786-87 (D. Me. 1988) (holding that documents

affixed to complaint that contained alleged misrepresentations

satisfied Rule 9(b)).

We note, however, that the complaint attributes a

gallimaufry of other substantially similar statements to the

defendants. We count no fewer than four such allegedly fraudulent

misrepresentations: (i) that a SNESL employee had reported that

the 1997 application for accreditation came "within an inch of ABA

approval"; (ii) that an admissions officer proclaimed that SNESL

"will be accredited"; (iii) that SNESL claimed it had received a

special time waiver from the ABA because its "case [for

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accreditation] was so strong"; and (iv) that if accreditation were

again denied, SNESL would appeal directly to the ABA's governing

body. None of these four statements is pleaded with the

particularity required under Rule 9(b). Insofar as we can tell

from the complaint, each such statement was made by an unidentified

person at an unnamed place and at an unspecified time.2 Such

gossamer allegations are patently inadequate under Rule 9(b). See

Alternative Sys. Concepts, 374 F.3d at 30; Ahmed v. Rosenblatt, 118

F.3d 886, 889 (1st Cir. 1997).

When a claim sounding in fraud contains a hybrid of

allegations, some of which satisfy the strictures of Rule 9(b) and

some of which do not, an inquiring court may sustain the claim on

the basis of those specific allegations that are properly pleaded.

See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir.

2003); Serabian v. Amoskeag Bank Shares, Inc., 24 F.3d 357, 366

(1st Cir. 1994). So it is here. For that reason, we take no view

either as to whether the plaintiff, on remand, should be permitted

to amend his complaint to add particulars anent the other four

statements or as to whether, absent an amendment, evidence of those

statements may be introduced at trial in support of the allegation

that the plaintiff reasonably relied on the Larkin and Prentiss

2
We acknowledge that the plaintiff has provided many of the
missing details concerning these statements in other filings, such
as his affidavits and briefs. Nevertheless, those documents are
not eligible for consideration on this appeal. See supra Part
II(A).

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letters. In the first instance, such matters, should they arise,

are for the district court.

4. Reasonable Reliance. Reasonable reliance is, of

course, an element of a fraudulent misrepresentation claim under

Massachusetts law. Zimmerman, 575 N.E.2d at 76. The defendants

strive to persuade us that the disclaimer placed in the school's

catalogue — disclaiming any "representation to any applicant or

student that [SNESL] will be approved by the American Bar

Association prior to the graduation of any matriculating student"

— renders any reliance by the plaintiff on Larkin's and Prentiss's

epistles unreasonable as a matter of law. We are not convinced.

Under Massachusetts law, the reasonableness of a party's

reliance ordinarily constitutes a question of fact for the jury.

Mass. Laborers' Health & Welfare Fund v. Philip Morris, Inc., 62 F.

Supp. 2d 236, 242 (D. Mass. 1999); Cataldo Ambul. Serv., Inc. v.

City of Chelsea, 688 N.E.2d 959, 962 (Mass. 1998). When, however,

the facts alleged in the complaint preclude a finding of reasonable

reliance, a court may enter an order of dismissal under Rule

12(b)(6). See, e.g., Mass. Laborers' Health & Welfare Fund, 62 F.

Supp. 2d at 242; Saxon Theatre Corp. v. Sage, 200 N.E.2d 241, 244

(Mass. 1964). The defendants argue that the disclaimer,

incorporated by reference in the plaintiff's complaint, makes this

such a case.

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 In mounting this argument, the defendants distort the

fraudulent misrepresentation. They insist that the plaintiff's

asserted injury flows from a broken promise of accreditation (i.e.,

that he was promised accreditation that did not occur). Since the

disclaimer flatly contradicts any such representation, the

defendants say, reliance on that promise was objectively

unreasonable.

This argument erects, and then attacks, a straw man. As

said, the plaintiff's complaint alleges that the defendants falsely

implied that SNESL had the capacity to achieve near-term

accreditation. This is a meaningful distinction. It is one thing

for an actor to demur when asked to guarantee a third party's

actions. It is quite another for an actor to mislead a person into

believing that the actor itself possesses means and abilities fully

within its control. Given this distinction, the defendants'

reliance on the disclaimer is misplaced: inasmuch as the

disclaimer does not cover the alleged misrepresentations, it cannot

defeat them. See Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d

614, 630-631 (4th Cir. 1999) (holding that a contracting party may

recover for fraud notwithstanding "specific disclaimers that do not

cover the allegedly fraudulent contract-inducing representations").

It is, of course, arguable that the proof at summary

judgment or at trial may show that the disclaimer does cover

whatever misrepresentations (if any) were actually made. But even

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if the defendants' characterization of the plaintiff's fraudulent

misrepresentation claim was on the mark, we could not affirm the

order of dismissal on this ground. We explain briefly.

Under Massachusetts law, "a party may not contract out of

fraud." Turner v. Johnson & Johnson, 809 F.2d 90, 95 (1st Cir.

1986). With this in mind, Massachusetts courts consistently have

held that disclaimers do not automatically defeat fraudulent

misrepresentation claims. See, e.g., Bates v. Southgate, 31 N.E.2d

551, 558 (Mass. 1941); Sound Techniques, Inc. v. Hoffman, 737

N.E.2d 920, 924 (Mass. App. Ct. 2000); see also VMark Software,

Inc. v. EMC Corp., 642 N.E.2d 587, 594 n.11 (Mass. App. Ct. 1994)

(collecting cases).

At the motion to dismiss stage, information such as the

conspicuousness of the disclaimer and the parties' discussions

concerning it is largely undeveloped. These details are relevant,

as the circumstances surrounding the formation of the contract will

shed light upon the disclaimer's meaning and effect. See Turner,

809 F.2d at 96 (stating that when dealing with an ambiguous

disclaimer, "the agreement is to some extent left undefined, and

the plaintiff's understanding of the agreement logically may be

colored by the defendant's prior statements, fraudulent or

otherwise"). On an empty record, we would have no principled

choice but to decline the defendants' invitation to hold, as a

matter of law, that there is no possible set of circumstances under

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which the disclaimer might prove ineffective. See V.S.H. Realty,

Inc. v. Texaco, Inc., 757 F.2d 411, 418 (1st Cir. 1985) (cautioning

against deciding whether an exculpatory clause precludes a

misrepresentation claim "without development of a factual record").

5. Statute of Limitations. The defendants have a final

fallback position. They assert that, even if the fraudulent

misrepresentation claim is actionable, it is time-barred. We

explore this possibility.

To a limited extent, a statute of limitations defense can

be considered on a Rule 12(b)(6) motion. See, e.g., LaChapelle,

142 F.3d at 509. The key is whether the complaint and any

documents that properly may be read in conjunction with it show

beyond doubt that the claim asserted is out of time. Id.

Massachusetts law provides that an action in tort — of

which fraudulent misrepresentation is a species — "shall be

commenced only within three years next after the cause of action

accrues." Mass. Gen. Laws ch. 260, § 2A. A claim for fraudulent

misrepresentation does not begin to accrue until "a plaintiff

learns or reasonably should have learned of the misrepresentation."

Kent v. Dupree, 429 N.E.2d 1041, 1043 (Mass. App. Ct. 1982); accord

Patsos v. First Albany Corp., 741 N.E.2d 841, 846 (Mass. 2001);

McEneaney, 650 N.E.2d at 97. In this context, courts sometimes ask

when sufficient indicia of trouble — storm warnings, so to speak —

should have been apparent to a reasonably prudent person. See,

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e.g., Wolinetz v. Berkshire Life Ins. Co., 361 F.3d 44, 47-48 (1st

Cir. 2004); Young v. Lepone, 305 F.3d 1, 8 (1st Cir. 2002).

In the case at hand, the plaintiff's complaint alleges

that he learned of persistent deficiencies precluding ABA

accreditation at an unspecified date in November of 1999. There

are no facts alleged in the complaint that require an inference of

an earlier accrual date. As of that time, then, the plaintiff

should have figured out that the defendants' rodomontade about the

school's capabilities and the imminence of accreditation was quite

likely pie in the sky. On that basis, the plaintiff should have

commenced his action no later than November of 2002 (the precise

date is inconsequential, for reasons that shortly will become

apparent). Because this action was not docketed until June 9,

2003, a cursory glance would appear to validate the defendants'

assertion that the statute of limitations had run. See, e.g.,

Jolicoeur v. S. New Engl. Sch. of Law, 104 Fed. Appx. 745, 746-47

(1st Cir. 2004) (per curiam) (holding a similar action, filed by

one of the plaintiff's classmates on June 18, 2003, to be time-

barred).

Appearances sometimes are deceiving — and this is such an

instance. Here, unlike in Jolicoeur, the plaintiff filed an

antecedent suit in the District of New Jersey on July 18, 2002 —

well within the putative limitations period. Although that case

was dismissed on April 10, 2003, the dismissal was not on the

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merits, but, rather, for want of personal jurisdiction over the

named defendants (SNESL, Larkin, and Prentiss). Rodi, 255 F. Supp.

2d at 351.

This history is significant because, under Massachusetts

law, if an action is duly commenced within the limitations period

and then dismissed for "any matter of form," the plaintiff is

entitled to "commence a new action for the same cause within one

year after the dismissal." Mass. Gen. Laws ch. 260, § 32. The

savings statute applies, inter alia, to an action originally filed

and dismissed in a court of another state or in a federal district

court. See Boutiette v. Dickinson, 768 N.E.2d 562, 563-64 (Mass.

App. Ct. 2002); Liberace v. Conway, 574 N.E.2d 1010, 1012 (Mass.

App. Ct. 1991).

We have no doubt that, for purposes of this savings

statute, dismissals for want of personal jurisdiction are

appropriately classified as dismissals arising out of matters of

form. Cf. Ciampa v. Beverly Airport Comm'n, 650 N.E.2d 816, 817

(Mass. App. Ct. 1995) (holding that "dismissal for bringing an

action in the wrong court is 'a matter of form' within the meaning

of § 32"). After all, as the Supreme Judicial Court of

Massachusetts wrote almost two centuries ago in describing an

earlier version of the law, the legislature enacted the savings

statute to ensure that "where [a] plaintiff has been defeated by

some matter not affecting the merits, some defect or informality,

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which he can remedy or avoid by a new process," the statute of

limitations "shall not prevent him from doing so." Coffin v.

Cottle, 33 Mass. (16 Pick.) 383, 386 (1835) (emphasis supplied).

A dismissal for lack of personal jurisdiction is the paradigmatic

example of a decision not on the merits that can be cured by new

process in a different court. See Teva Pharm., USA, Inc. v. FDA,

182 F.3d 1003, 1008 (D.C. Cir. 1999).

That ends this aspect of the matter. This action and the

earlier New Jersey action are sisters under the skin; they involve

the same parties, the same events, the same nucleus of operative

facts, and the same causes of action. By means of the savings

statute, the plaintiff had one year from the dismissal of his

timely New Jersey action — until April 10, 2004 — to file anew. He

instituted the action sub judice on June 9, 2003. His fraudulent

misrepresentation claim is therefore timely.

In an effort to blunt the force of the savings statute,

SNESL raises the red flag of waiver. It asserts that because the

plaintiff first set forth the savings statute argument in his

opposition to the defendants' motion to dismiss, he is not entitled

to benefit from it. SNESL's flag-waving overlooks, however, that

a court asked to dismiss a complaint on statute of limitations

grounds may examine not only the complaint but also such other

documents as may appropriately be considered under Fed. R. Civ. P.

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12(b)(6). See Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197

(1st Cir. 2001).

Here, the facts that the plaintiff relies on to show the

applicability of the savings statute (e.g., the date that he filed

the original action, the nature of that action, the date it was

dismissed, and the basis for the dismissal) are all susceptible to

judicial notice. See Fed. R. Evid. 201. Those facts may,

therefore, be considered in assessing the force of the limitations

defense. See Colonial Mortg. Bankers, 324 F.3d at 15-16; see also

Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) ("It is well-

accepted that federal courts may take judicial notice of

proceedings in other courts if those proceedings have relevance to

the matters at hand.").

SNESL's citation to Granahan v. Commonwealth, 476 N.E.2d

266 (Mass. App. Ct. 1985), does not alter this conclusion. In a

diversity case, procedure, unlike substance, is governed by federal

law. See Correia, 354 F.3d at 53 ("Federal courts sitting in

diversity apply state substantive law and federal procedural

rules."). Under federal procedural precedents, there has been no

waiver: the plaintiff presented developed argumentation on the

savings statute to the lower court, and thus preserved that issue

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for appellate review.3 B & T Masonry Constr. Co. v. Pub. Serv.

Mut. Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004).

To say more on this issue would be supererogatory. At

this stage of the game, the statute of limitations affords no basis

for dismissal of the plaintiff's fraudulent misrepresentation

claim.4

C. The Chapter 93A Claim.

The situation concerning the plaintiff's claim under the

Massachusetts Consumer Protection Act is less clear-cut. Before

bringing suit under that statute, a plaintiff must mail to the

defendant a "written demand for relief, identifying the claimant

and reasonably describing the unfair or deceptive act or practice

relied upon." Mass. Gen. Laws ch. 93A, § 9(3). This notification

3
In all events, Granahan is materially distinguishable. Here,
the plaintiff presented his savings statute argument to the nisi
prius court. In contrast, Granahan formally raised his savings
statute contention for the first time in the appellate court. In
launching that effort, Granahan relied solely on appellate
argumentation, not "pleadings, affidavits, or other documents
presented to the motion judge." 476 N.E.2d at 268 n.5. The
Appeals Court refused to entertain the argument. Id. at 268. So
understood, Granahan represents nothing more than the Massachusetts
equivalent of the federal courts' familiar raise-or-waive rule.
See, e.g., Teamsters, Chauffeurs, Warehousemen & Helpers Union v.
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (warning
that "legal theories not raised squarely in the lower court cannot
be broached for the first time on appeal").
4
This holding depends, of course, on the plaintiff's
allegation as to when he first learned of the persistent (and
likely insuperable) deficiencies that precluded ABA accreditation.
Should the proof on this point unfold differently, the district
court is free to reexamine the date of accrual.

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must be furnished no fewer than thirty days prior to the filing of

suit. Id. The statutory notice requirement is not merely a

procedural nicety, but, rather, "a prerequisite to suit."

Entrialgo v. Twin City Dodge, Inc., 333 N.E.2d 202, 204 (Mass.

1975). Furthermore, "as a special element" of the cause of action,

it must be alleged in the plaintiff's complaint. Id.

In this instance, neither the plaintiff's complaint nor

the documents attached thereto mention any such notification. That

is sufficient ground to justify dismissal of the Chapter 93A claim.

See, e.g., City of Boston v. Aetna Life Ins. Co., 506 N.E.2d 106,

109 (Mass. 1987); Spilios v. Cohen, 647 N.E.2d 1218, 1220-21 (Mass.

App. Ct. 1995); see also Gooley v. Mobil Oil Corp., 851 F.2d 513,

515 (1st Cir. 1988) (explaining that, in order to survive a Rule

12(b)(6) motion, a complaint must "set forth factual allegations,

either direct or inferential, respecting each material element

necessary to sustain recovery under some actionable legal theory").

This ruling has no effect on the plaintiff's fraudulent

misrepresentation claim. See York v. Sullivan, 338 N.E.2d 341, 346

(Mass. 1975) (explaining that "the [notice] requirement is a

prerequisite to an action under [Chapter 93A, § 9], but nothing in

the statute makes it a prerequisite to any other remedy available

to aggrieved consumers"). Moreover, it may represent no more than

a temporary victory for the defendants. A failure to allege

compliance with the statutory notice requirement is not necessarily

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a death knell for a Chapter 93A claim. Massachusetts courts

typically have allowed plaintiffs to amend in order to cure this

kind of modest pleading defect. See, e.g., Jacobs v. Yamaha Motor

Corp., 649 N.E.2d 758, 761 (Mass. 1995); Parker v. D'Avolio, 664

N.E.2d 858, 861 n.4 (Mass. App. Ct. 1996). Federal practice is no

less permissive. See Fed. R. Civ. P. 15(a) (stating that leave to

amend "shall be freely given when justice so requires").

Allowing an opportunity to amend is especially fitting

here. Our reasons are fivefold. First, the plaintiff filed the

complaint pro se, and "courts [should] endeavor, within reasonable

limits, to guard against the loss of pro se claims due to technical

defects." Boivin, 225 F.3d at 43. Second, a fraudulent

misrepresentation, actionable at common law, often can form the

basis for a Chapter 93A claim. See, e.g., Adams v. Liberty Mut.

Ins. Co., 799 N.E.2d 130, 140 n.19 (Mass. App. Ct. 2003); Levings

v. Forbes & Wallace, Inc., 396 N.E.2d 149, 154 (Mass. App. Ct.

1979); see also VMark Software, 642 N.E.2d at 595 (collecting

cases). So here: apart from the question of notice, the

plaintiff's allegations of fraudulent misrepresentation state a

colorable claim for relief under Chapter 93A. Third, the plaintiff

vouchsafed in his opposition to the motion to dismiss, and now

reaffirms, that he did in fact furnish the statutorily required

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notice.5 Fourth, we do not know whether the district court even

focused on this defect (as we have said, the district court did not

state a particularized ground for dismissing this claim). Finally,

the plaintiff, even without knowing the precise basis for the

district court's order of dismissal, did seek leave to amend as

part of his reconsideration request (an overture that the district

court denied without any explanation).

The Supreme Court declared long ago that "the purpose of

pleading is to facilitate a proper decision on the merits." Conley

v. Gibson, 355 U.S. 41, 48 (1957). The view that the pleading of

cases is a game in which every miscue should be fatal is antithetic

to the spirit of the federal rules. Cf. Fed. R. Civ. P. 1

(explaining that the federal rules designed to achieve, inter alia,

the "just" resolution of disputes). Each case is sui generis.

Here, however, the circumstances cry out for affording the

plaintiff a fair opportunity to replead his Chapter 93A claim.

Accordingly, we direct the district court, on remand, to grant the

plaintiff that opportunity.

III. CONCLUSION

We need go no further. For the reasons elaborated above,

we reverse the district court's order insofar as it dismisses the

fraudulent misrepresentation count. We affirm the order insofar as

5
The plaintiff actually submitted the putative notice to the
district court, and it is in the record on appeal. We take no view
of its sufficiency vis-à-vis the statutory requirement.

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it dismisses the Chapter 93A count but direct that the plaintiff be

afforded leave to amend that count. The portion of the order

dismissing the other seven counts in the complaint has not been

contested, and, accordingly, we leave that portion of the order

intact.

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. Two-thirds costs

shall be taxed in favor of the plaintiff.

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