United States Court of Appeals
For the First Circuit
No. 07-1770
JOSEPH RODI,
Plaintiff, Appellant,
v.
SOUTHERN NEW ENGLAND SCHOOL OF LAW;
FRANCIS J. LARKIN; DAVID M. PRENTISS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Jonathan D. Plaut, with whom Chardon Law Offices was on brief,
for appellant.
Elizabeth A. Houdling, with whom Allen N. David, and Peabody
& Arnold LLP were on brief, for appellees.
June 30, 2008
HOWARD, Circuit Judge. Joseph Rodi graduated from
Southern New England School of Law ("SNESL") in 2000. Because the
school failed to achieve American Bar Association ("ABA")
accreditation prior to Rodi's graduation, he is unable to sit for
the New Jersey bar examination. As a result, Rodi sued SNESL,
alleging that the deans of the school made false statements to him
regarding the school's accreditation prospects that induced him to
remain at SNESL and forgo other opportunities. He claimed fraud
and a violation of a consumer protection statute. The district
court granted summary judgment for SNESL after concluding that no
reasonable jury could find his claims meritorious. We affirm.
I. Background
We state the facts necessary to set the context for the
case here but include more where needed. We present these facts in
the light most favorable to Rodi. See Hadfield v. McDonough, 407
F.3d 11, 14 (1st Cir. 2005).
In March of 1997, Joseph Rodi applied to Southern New
England School of Law -- a law school unaccredited by the ABA.
Soon after Rodi applied, the ABA's Accreditation Committee
recommended SNESL for "provisional accreditation," which would
allow graduates of the school to sit for the bar examination in all
fifty states.1 Dean Francis Larkin, then acting dean of SNESL,
1
Although graduates of provisionally accredited law schools are
entitled to the same recognition given to graduates of fully
approved law schools, a law school must be provisionally approved
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sent prospective students, including Rodi, a letter detailing this
development. Although Larkin noted that the Committee's
recommendation had to be ratified by two more ABA entities, he
wrote, "We are highly confident of gaining these favorable
approvals at the ABA Annual Meeting in August." Rodi –- who
intended to eventually sit for the New Jersey bar examination2 --
enrolled at SNESL. At all relevant times, the law school catalogue
contained a disclaimer that provided: "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."
Despite Larkin's optimism, in August the ABA denied SNESL
provisional accreditation. It notified SNESL that the school was
not in substantial compliance with a number of ABA accreditation
standards and expressed concern about the school's compliance with
other accreditation standards.
Around a month later, in September of 1997, Dean Larkin
hosted a student meeting at SNESL; Rodi attended. At this meeting,
Larkin said SNESL would reapply for provisional accreditation at
its next opportunity and assured the students that the school had
rectified deficiencies in its application. Larkin also promised
for at least two years before receiving full ABA accreditation.
2
New Jersey requires bar applicants to hold degrees from ABA
accredited law schools.
-3-
that the ABA would grant SNESL accreditation, stating "The school
will be accredited by the ABA the next time around and before you
graduate."
In the summer of 1998, following his first year at SNESL,
Rodi sent transfer applications to Rutgers and Seton Hall law
schools. Dean David Prentiss, who had replaced Dean Larkin as
acting dean, received notice of Rodi's interest in transferring.
He wrote Rodi a letter asking him to consider carefully whether a
transfer was in his best interest. In this letter, Prentiss cited
the progress SNESL had made toward achieving ABA accreditation and
noted, "[T]here should be no cause for pessimism about the school's
ultimate achievement of ABA approval." Although Rodi received
Prentiss's letter, he chose not to withdraw his transfer
applications. Both law schools ultimately denied him admission.
During discovery it was revealed that when both Dean
Larkin and Dean Prentiss made these statements they had concerns
regarding SNESL's prospects for accreditation. Dean Larkin said
that in August of 1997, after the ABA denied SNESL provisional
accreditation, he was not highly confident that SNESL's renewed
application would be successful. Similarly, Dean Prentiss said
that he did not know how the ABA would rule on the renewed
application and that he recognized SNESL was at the low end of the
spectrum with regards to the resources necessary to garner
accreditation.
-4-
In November of 1999 -- during Rodi's third year at SNESL
–- the ABA's Accreditation Committee rejected SNESL's renewed
application for accreditation and did not recommend that SNESL be
granted provisional accreditation. The Committee cited SNESL's
failure both to comply with ABA standards and to present a reliable
three-year plan for complying with the standards. SNESL did not
appeal the Committee's decision. Although Rodi graduated from
SNESL in September of 2000, because SNESL failed to receive ABA
accreditation prior to his graduation he is unable to sit for the
New Jersey bar examination.
In June of 2003, Rodi sued SNESL, Larkin, and Prentiss in
the United States District Court for the District of
Massachusetts.3 He claimed that the defendants' statements
constituted fraudulent misrepresentation and violated a consumer
protection statute, Mass. Gen. Laws ch. 93A, §§ 1-11 ("Chapter
93A"). The district court granted the defendants' motion to
dismiss and ruled, without elaboration, that Rodi failed to state
a claim upon which relief could be granted. We reversed the
district court in part and remanded the case for further
proceedings after concluding that Rodi alleged a colorable
3
Rodi originally filed suit in July, 2002 in the United States
District Court for the District of New Jersey. However, the court
dismissed his case for want of in personam jurisdiction leading him
to file this action in Massachusetts. See Rodi v. S. New Eng. Sch.
of Law, 389 F.3d 5, 11 (1st Cir. 2004) (describing this sequence of
events).
-5-
fraudulent misrepresentation claim and that he should be allowed to
amend his Chapter 93A claim to remedy pleading deficiencies. See
Rodi, 389 F.3d at 20-21.
On remand, Rodi filed a motion for reassignment pursuant
to Local Rule 40.1(K)(2). In this motion, he claimed that the
terms of the remand did not require the original judge to conduct
further proceedings and that no substantial savings of time would
result if the judge did retain the case. The judge denied his
motion, specifically finding that her familiarity with the case
would result in a savings of time.
After discovery, the district court granted SNESL's
motion for summary judgment on Rodi's fraudulent misrepresentation
claim. Although the court questioned whether the deans made false
statements of material fact, it concluded that even if they had
made such statements Rodi's reliance was unreasonable as a matter
of law. The court similarly dispensed with Rodi's Chapter 93A
claim, concluding that Rodi's inability to prove fraudulent
misrepresentation sealed the claim's fate. Rodi appeals.
II. Discussion
Rodi presents three arguments on appeal. His first and
primary argument is that the district court erred in granting
summary judgment to SNESL on his fraudulent misrepresentation
claim. Relatedly, he argues that the court erred in granting
summary judgment to SNESL on his Chapter 93A claim -- which was
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also premised on the conduct underlying his fraud claim. Finally,
Rodi argues that the district judge should have either recused
herself from this case or reassigned it to another judge pursuant
to Local Rule 40.1(K)(2). We take up each claim in turn.
A. Fraudulent Misrepresentation
We review grants of summary judgment de novo. Vives v.
Fajardo, 472 F.3d 19, 21 (1st Cir. 2007). Because this is a
diversity case, Massachusetts law controls. B & T Masonry Constr.
Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 38 (1st Cir. 2004).
Under Massachusetts law, to recover for fraudulent
misrepresentation Rodi must allege and prove that: (i) the
defendants made a false representation of a material fact with
knowledge of its falsity for the purpose of inducing him to act
thereon, (ii) he relied upon the representation as true and acted
upon it to his detriment, and (iii) that his reliance was
reasonable under the circumstances. Rodi, 389 F.3d at 13;
Masingill v. EMC Corp., 870 N.E.2d 81, 88 (2007). Although the
reasonableness of a party's reliance is ordinarily a question of
fact for the jury, Cataldo Ambul. Serv., Inc. v. City of Chelsea,
688 N.E.2d 959, 962 (1998), if no reasonable jury could find the
party's reliance reasonable a court may grant summary judgment.
See Mass. Laborers' Health & Welfare Fund v. Philip Morris, Inc.,
62 F. Supp. 2d 236, 242 (D. Mass. 1999) (citing Saxon Theatre Corp.
v. Sage, 200 N.E.2d 241, 244-45 (1964)).
-7-
Rodi focuses his claim of fraudulent misrepresentation on
statements made by Dean Larkin and Dean Prentiss during their
respective stints as deans of SNESL.4 His argument is as follows:
Statements made by the deans, specifically Larkin's statements in
the fall of 1997 and Prentiss's statement in the spring of 1998,
misrepresented SNESL's accreditation prospects. The
misrepresentations were made knowingly because both deans, when
publishing their statements, had information suggesting that
provisional accreditation was unlikely. The deans spoke for the
purpose of inducing Rodi to remain at SNESL, fearing an exodus of
students would cost the school a substantial amount of money and
further undermine the school's chances of achieving accreditation.
Because he trusted the deans, whom he assumed had access to
information regarding the school's true accreditation status, Rodi
relied on their statements and chose to forgo opportunities
available to him, such as the pursuit of a Ph.D. As a result of
his forbearance, he suffered damages including lost tuition, salary
that would have been available to him had he held a job during his
4
Although Rodi does identify statements made by other
administration and faculty members, he does not specifically argue
that these speakers knowingly made false statements for the purpose
of inducing him to rely or that he reasonably relied on these
statements. Accordingly, we do not examine those statements here.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990)("[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived").
-8-
years of attendance at SNESL, and potentially the loss of financial
benefits associated with holding a Ph.D.
After consulting the summary judgment record, we find his
argument unpersuasive and conclude that the district court
correctly granted summary judgment to SNESL. We do so because even
assuming that Dean Larkin and Dean Prentiss made false statements
of material fact for the purpose of inducing Rodi to remain at
SNESL, no reasonable jury could find (1) that Rodi relied on their
statements, or (2) that his reliance was reasonable. We address
the frailties in Rodi's fraudulent misrepresentation claim in that
order.
Rodi claims that he relied on statements made by the
deans but this is directly contradicted by his own actions. In the
summer of 1998, following Larkin's statements, Rodi sent transfer
applications to two law schools: Rutgers and Seton Hall. Despite
Prentiss's letter asking him to reconsider his decision to seek a
transfer, Rodi chose not withdraw his applications. Rodi's
attempts to transfer to an ABA accredited law school strongly
suggest that he did not believe the deans' statements regarding
SNESL's prospects for ABA approval.
Rodi's failure to offer an explanation for his unyielding
pursuit of a transfer is damning. Rodi could have easily offered
plausible explanations for both his attempted transfer and his
failure to withdraw his applications that would have been
-9-
technically compatible with his assertion that he relied on
Larkin's and Prentiss's statements.5 Instead, he says nothing and
thus fails to undercut the powerful inference that he never relied
on what the deans were saying regarding accreditation in the first
place.
Rodi, perhaps realizing the significance of his failure
to withdraw the application, attempts to shore up the reliance
element of his claim by baldly asserting that he did rely and by
adding that, if not for the deans' statements, he would have
pursued a Ph.D. His effort falls short. First, his claim that he
did rely is merely a conclusory allegation insufficient to defeat
summary judgment. See Medina-Muñoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990). Second, his claim that he relied by
foregoing the pursuit of a Ph.D is dubious in light of his failure
to explain away his transfer attempt. Put simply, if the deans'
respective statements were not enough to convince Rodi to
relinquish his pursuit of a transfer, it seems equally unlikely
they would have been enough to persuade Rodi to shelve his pursuit
of a Ph.D.
5
For example, Rodi could have offered evidence that he sought a
transfer because he wanted to attend a school closer to his home in
New Jersey and that he did not withdraw his applications simply
because of the hassle of doing so.
-10-
But even if Rodi did rely on Dean Larkin's and Dean
Prentiss's statements, his reliance was unreasonable. This becomes
evident once we analyze what the deans said.6
Dean Larkin made two statements: first, that SNESL had
rectified the deficiencies in its application that the ABA had
identified and second, that the ABA would grant SNESL accreditation
before the students graduated.7
As for Larkin's first statement, it was unreasonable for
Rodi to believe that SNESL had remedied accreditation problems
significant enough to derail its application in just four weeks.
See Yorke v. Taylor, 124 N.E.2d 912, 916 (1955) (noting reliance
cannot be deemed reasonable when alleged misrepresentation is
"palpably false").
6
Although Rodi contends that Dean Larkin and Dean Prentiss
promised him and the SNESL student body on "numerous occasions and
in numerous locations that they were certain of achieving ABA
accreditation," the only statements pled with particularity are
Dean Larkin's statement in September of 1997 and Dean Prentiss's
statement in July of 1998. See Rodi, 389 F.3d at 15 (noting that
the Federal Rules of Civil Procedure require allegations of fraud
be "stated with particularity" and that this requires "an averment
'of the who, what, where, and when of the allegedly false or
fraudulent representation'"). Rodi's reference to student
affidavits fails to cure this particularity deficiency. These
affidavits only reference Dean Larkin's statement in September of
1997 with the requisite detail and otherwise contain only general
statements that the deans made various verbal representations to
the student body.
7
Dean Larkin also told the students that SNESL would reapply for
provisional approval at its next opportunity. Because the school
did so we need not analyze the statement further.
-11-
But it was even more unjustified for Rodi to rely on
Larkin's second statement promising accreditation before Rodi
graduated. First, at all times Rodi was attending SNESL, the law
school catalogue contained a disclaimer which provided: "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." Although disclaimers,
under Massachusetts law, do not serve as automatic defenses to
allegations of fraud, see Sheehy v. Lipton Industries, Inc., 507
N.E.2d 781, 784 (Mass. App. Ct. 1987), they obviously may be
considered when assessing the reasonableness of a party's reliance.
The school, through its disclaimer, essentially urged Rodi and
other SNESL students to ignore statements such as the one made by
Dean Larkin.
Second, SNESL's accreditation fate was ultimately in the
hands of a third party, the ABA. This is a fact that Rodi and
every other SNESL student had squarely confronted when the ABA
denied the school's accreditation in August of 1997. Accordingly,
Rodi acted unreasonably in crediting Larkin's promise that an
entity over which Larkin had no control would do something. See
Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 781 N.E.2d
787, 795 (Mass. App. Ct. 2004) (holding plaintiff's reliance on
defendant's representation regarding a deal's finality unreasonable
-12-
because plaintiff should have been aware that a third-party had
final approval authority).
Finally, prior to his statement in September of 1997
Larkin had been exposed as a flawed prognosticator. In a letter to
Rodi prior to the first denial of accreditation in August of 1997,
Larkin wrote that he was "highly confident" that SNESL would gain
accreditation in August. Larkin's history of making inaccurate
predictions rendered any reliance on his statements unreasonable.
As the proverb provides, "fool me once -- shame on you, fool me
twice -- shame on me."8
We now turn to Dean Prentiss's statement. In a letter
sent to Rodi in July of 1998 Prentiss stated, "[T]here should be no
cause for pessimism about the school's ultimate achievement of ABA
approval." Rodi acted unreasonably in relying on this statement
simply because its content, regardless of its accuracy, offered
little to hold onto. Aside from being, at best, a lukewarm
endorsement of the school's likelihood of attaining accreditation,
the fact that the Dean was specifically discussing the school's
"ultimate accreditation" should have meant very little to Rodi.
8
Similarly, a development following the September 1997 meeting
also should have convinced Rodi to ignore Larkin's promise. Rodi
claims that at the meeting Larkin promised the "student body" that
SNESL would be accredited before they graduated. Such a body would
have included third year law students slated to graduate in May or
June of 1998. Once that latter date came and went, accompanied by
Larkin's broken promise to the third year students, Rodi had yet
another reason to doubt Larkin's statement.
-13-
Unlike Larkin, who promised accreditation before Rodi graduated,
Prentiss did not go as far. This was the summer after Rodi's first
year of law school and his window of opportunity to graduate from
an accredited law school was rapidly closing. By putting faith in
a dean's weak prediction of ultimate accreditation, he acted not
only improvidently but unreasonably.
Rodi, nevertheless, argues that his reliance was
reasonable. First, he contends that it was reasonable for him to
rely on statements made by the deans because he trusted them.
Second, he argues that, at the least, the reasonableness of his
reliance is a question for the jury. His arguments are unavailing.
First, even if Rodi trusted his deans, both the content and context
of their statements -- detailed above -- made his reliance
unreasonable. See Collins v. Huculak, 783 N.E.2d 834, 840 (Mass.
App. Ct. 2003) (holding reliance by sons on father's
representations unreasonable because of circumstances surrounding
representations, despite the fact that sons claimed they trusted
their father). Second, it is settled law that the reasonableness
of a party's reliance is not necessarily a jury question. See
Saxon Theatre Corp., 200 N.E.2d at 244-45.
In sum, at trial Rodi would be charged with persuading a
jury that, among other things, he relied on the word of his deans
and that his reliance was reasonable. Given the grave deficiencies
present in both the reliance and reasonable reliance elements of
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his claim, we are convinced that no reasonable jury could be so
persuaded. See Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st
Cir. 2007) (noting that where the "nonmovant-plaintiff has the
burden of proof, the evidence adduced on each of the elements of
his asserted cause of action must be significantly probative in
order to forestall summary judgment") (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). Accordingly, the
district court correctly entered summary judgment in favor of
SNESL.
B. Chapter 93A
Rodi also claims that SNESL's actions violated a consumer
protection statute, Mass. Gen. Laws ch. 93A, §§ 2, 9.9 Chapter 93A
makes unlawful "unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or
commerce." Mass. Gen. Laws ch. 93A, § 2(a). "Conduct is unfair or
deceptive if it is 'within at least the penumbra of some common-
law, statutory, or other established concept of unfairness' or
'immoral, unethical, oppressive or unscrupulous.'" Cummings v. HPG
Int'l Inc., 244 F.3d 16, 25 (1st Cir. 2001); see also Travis v.
McDonald, 490 N.E.2d 1169, 1171 (1986).
In order for Rodi to recover under Chapter 93A based on
his claim of fraudulent misrepresentation he must prove reasonable
9
Although SNESL claims that Rodi did not comply with the thirty-
day demand letter requirement, the district court nonetheless
reached the substance of the claim. We follow its lead.
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reliance. See Trifiro v. N.Y. Life Ins. Co., 845 F.2d 30, 33 n.1
(1st Cir. 1988); Mass. Laborers' Health & Welfare Fund, 62 F.
Supp. 2d at 243 (holding plaintiff could not recover under Chapter
93A for claim based on fraud where plaintiff failed to prove
reliance on false statements was reasonable). As discussed above,
that is not possible here. We therefore conclude the district
court correctly entered summary judgment for SNESL on this count.
C. Recusal and Motion for Reassignment
Finally, Rodi argues that the district judge should not
have presided over his case for two reasons. First, he claims that
the district judge should have recused herself from his case
because she had spoken at an SNESL graduation, had received an
honorary degree from the school, and had spoken favorably of their
accreditation efforts. Second, he argues that, at the very least,
on remand the judge should have reassigned his case. As to this
point, he contends that a judge should only retain a matter if
doing so would result in a substantial savings of time. Because no
answer had been filed and no discovery had been conducted, he
argues that in his case that was not the situation.
Rodi did not file a motion for recusal with the district
court but rather a motion for reassignment. In that motion, he
claimed only that the court should reassign the case because
retaining the case would not result in a substantial savings of
time. Accordingly, Rodi's recusal argument is waived. See United
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States v. DiPina, 230 F.3d 477, 486 (1st. Cir. 2000); In re Abijoe
Realty Corp., 943 F.2d 121, 127 (1st Cir. 1991).
However, Rodi's claim that the district judge should have
granted his motion for reassignment under Local Rule 40.1(K)(2) is
properly before us. Under 40.1(K)(2), when this court remands a
case to the district court, the district judge must reassign the
case unless either (1) "the terms of the remand require that
further proceedings be conducted before the original judge" or (2)
the judge determines that retaining the case will result in a
substantial savings of time and the interest of justice does not
require that further proceedings be conducted before a different
judge. We review the district court's application of its local
rule for an abuse of discretion. Crowley v. L.L. Bean, Inc., 361
F.3d 22, 25 (1st Cir. 2004).
There was no abuse of discretion. The judge found that
retaining the case would result in a substantial savings of time
because the Court was familiar with the background and procedural
history of the case and had already conducted a status conference
with the parties. As such, she acted well within her discretion in
declining to reassign Rodi's case. See Conley v. United States,
323 F.3d 7, 15 (1st Cir. 2003) (noting circuit's practice of giving
deference to district court's reassignment policies).
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III. Conclusion
For the reasons stated above, we affirm the judgment of
the district court.
AFFIRMED.
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