USCA1 Opinion
October 4, 1993 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-1114
GARY A. COOPRIDER,
Plaintiff, Appellant,
v.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
Defendant, Appellee.
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ERRATA SHEET
The opinion of this Court issued on September 29, 1993, is
amended as follows:
On page 4, first line of second full paragraph, replace
"1889" with "1989".
September 29, 1993
NOT FOR PUBLICATION
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1114
GARY A. COOPRIDER,
Plaintiff, Appellant,
v.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Charles B. Manuel, Jr. with whom James B. McKinney, Jr. and
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Manuel & McKinney were on brief for appellant.
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Neil Jacobs with whom Susan M. Curtin, Ann K. Bernhardt and Hale
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and Dorr were on brief for appellee.
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BOUDIN, Circuit Judge. Gary A. Cooprider brought this
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diversity action against his former employer, John Hancock
Mutual Life Insurance Company ("John Hancock"), claiming
breach of contract, bad faith breach of contract, intentional
interference with contractual relations, fraud, and unfair
and deceptive trade practices under Mass. Gen. L. ch. 93A.
The district court granted summary judgment for John Hancock
on all claims, and Cooprider brought this appeal. We affirm.
Cooprider had been associated with John Hancock's
European operations for brief periods in 1974 and 1983. In
late 1988, Cooprider spoke to J. Paul McDonnell, a John
Hancock vice president in Boston, about renewing that
association. McDonnell directed Cooprider to contact Charles
Woolley, John Hancock's European general agent. In January
1989, Cooprider and Woolley met in Germany and discussed
Cooprider's joining the company in a supervisory capacity.
They met again in March in London and on March 6, 1989,
Cooprider and Woolley initialed a one-page handwritten
document, drafted by Cooprider, entitled "Agreement by
Charles Woolley with GA Coop Cooprider" ("Coop" is
Cooprider's nickname). This document says, among other
things, that "Woolley agrees to groom GA Coop Cooprider to
take over the agency for John Hancock in Europe" when Woolley
stepped down no later than June 6, 1992. Cooprider
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subsequently returned to his home in Germany retaining the
original handwritten document.
Shortly thereafter, Woolley asked Cooprider to draft a
"letter of understanding" for Woolley to send to McDonnell in
the John Hancock home office in Boston. Cooprider complied,
and a letter dated March 7, 1989, purportedly signed by
Cooprider,1 was sent by Woolley to McDonnell on March 8.
The letter of understanding differed significantly from the
handwritten agreement. In particular, it did not contain any
provision for Cooprider to take over the European agency or
establish a retirement date for Woolley. Cooprider wrote:
It is my understanding, from discussions with you,
that John Hancock has agreed in exchange for my
goal of bringing an estimated eight (8) agents on
board ..., John Hancock will pay me $5,000 per
month for twelve (12) months or the normal C.D.P.
compensation formula, whichever is greater. It is
also my understanding that some expenses of
recruiting will be shared as budget allows.
With my considerable experience at marketing and
recruiting John Hancock has an excellent back-up
until your retirement at which time, based on my
successful accomplishments and ability to be a
Hancock team player, I will receive first
consideration for the right to lead the John
Hancock operations in Europe.
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1Cooprider claims to have signed a different version of
this letter dated March 6, 1989. However, he admits that the
signature on the March 7 version appears to be his and has
presented no evidence that John Hancock received the earlier
draft. The two drafts differ in one particular. The March 6
version states that Cooprider will have "earned the right" to
lead John Hancock operations in Europe. The March 7 version
provides that he will receive "first consideration" for the
right to lead based on his "successful accomplishments".
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Neither the letter of understanding nor an accompanying cover
letter from Woolley contain any reference to the handwritten
agreement. Cooprider acknowledges receiving a copy of
Woolley's cover letter by facsimile the day it went out to
McDonnell.
On March 14, 1989, McDonnell advised Woolley of his
agreement with the correspondence he had received. He made
no reference to the handwritten agreement, and he later said
that he was unaware of the agreement. However, he asked
Woolley to clarify with Cooprider that Cooprider was to work
exclusively with John Hancock. Woolley did so and Cooprider
later wrote to inform John Hancock that he had terminated his
contracts with the five insurance companies that he had
represented in Europe until then.
On or about March 14, 1989, Thomas Horack, another John
Hancock vice president located in Massachusetts, approved a
request form from Woolley to employ Cooprider. An attachment
specified Cooprider's first year monthly compensation and
indicated that thereafter compensation would be in accordance
with a formula, apparently based on business development. On
April 1, 1989, Cooprider began work for John Hancock. After
five months, Cooprider was terminated, apparently because of
dissatisfaction with his performance.
This action ensued. Limited discovery, directed to
dispositive issues, was allowed. John Hancock in due course
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moved for summary judgement. On December 29, 1992, Judge
Zobel filed a memorandum granting summary judgment in favor
of John Hancock; her determinations are described later in
this opinion. This appeal followed.
Summary judgement is appropriate when "there is no
genuine issue as to any material fact and . . . the moving
party is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56 (c). To withstand a summary judgment motion, the
nonmoving party must "set forth specific facts showing that
there is a genuine issue for trial." Fed. R. Civ. P. 56 (e).
On appeal review is plenary and inferences are resolved in
favor of the party opposing summary judgment. FDIC v.
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Longley, 988 F.2d 270 (1st Cir. 1993).
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Cooprider's second amended complaint defines the
contract at issue for purposes of all claims as a "long term
management contract," arising out of the handwritten
agreement signed by Cooprider and Woolley, under which the
plaintiff was to be engaged as John Hancock's director of
marketing and manpower development for a period of three
years after which he was to succeed Woolley as European
general agent for John Hancock. In granting summary judgment
on the contract claim, the district court found that
Cooprider had failed to show that Woolley had authority to
enter into such a contract or that the John Hancock home
office approved or ratified such a contract.
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The record amply supports the district court's
conclusion and shows that there was no factual issue for a
jury. Cooprider's deposition shows that he knew that Woolley
lacked authority to enter into a binding agreement with him
on behalf of John Hancock. As to approval or ratification,
Cooprider proffered no evidence to contradict the sworn
statements of McDonnell, Horack and Woolley that the
handwritten agreement was not sent to John Hancock's home
office nor were its contents ever communicated to the home
office at any time prior to Cooprider's termination.
In an attempt to create a factual dispute, Cooprider
contends that statements by Woolley in two affidavits are so
contradictory as to raise serious doubts regarding his
credibility. These alleged contradictions, however, appear
to be largely manufactured. In any event, the evidence of
those at the home office is consistent with Woolley's
statements and Cooprider offers nothing to contradict it. We
have held that to defeat summary judgment the nonmoving party
must provide more that "conclusory allegations, improper
inferences, and unsupported speculation." Medina-Munoz v. R.
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J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
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Record evidence on the issue of authority also renders
summary judgment appropriate on Cooprider's claim that he was
fraudulently induced to enter into a relationship with John
Hancock based on misrepresentations regarding the terms of
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his employment. In order to make out a claim for fraudulent
misrepresentation, a party must show reasonable reliance on
the alleged misrepresentations. Turner v. Johnson & Johnson,
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809 F.2d 90, 95 (1st Cir. 1986). Cooprider was admittedly
aware of Woolley's lack of authority. Any reliance on the
handwritten agreement was, therefore, unreasonable as a
matter of law.
On appeal, Cooprider argues that even if the handwritten
agreement did not bind John Hancock to appoint Cooprider as
Woolley's successor, at least he had a one-year agreement
with John Hancock which the latter breached by discharging
him after five months. This claim does not appear in the
second amended complaint and there is no indication that it
was presented to Judge Zobel. We will not normally consider
claims made for the first time on appeal, Jones v. City of
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Somerville, 735 F.2d 5, 7 (1st Cir. 1984), and see no reason
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here for an exception to this rule. We note in passing that
Cooprider seems to have very little basis for this newly
developed claim.2
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2The premise of the claim appears to be the letter that
Cooprider drafted, dated March 6 or March 7, to be forwarded
to John Hancock's headquarters. The letter in the record
does nothing more than specify monthly compensation for
Cooprider during his first 12 months. It would be quite a
stretch to convert what appears to be an employment
relationship of indefinite duration, which is normally
terminable at will, into a commitment by John Hancock to
retain Cooprider for one year.
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Cooprider further alleges that John Hancock terminated
his employment to retaliate for his complaints about supposed
illegal requirements imposed on John Hancock recruits in
Europe. Massachusetts allows claims for bad faith
termination where an at-will employment contract is
terminated for reasons contrary to public policy. DeRose v.
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Putnam Management Co., 398 Mass. 205, 496 N.E.2d 428 (1986).
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The claim of retaliation was not presented to the district
court except in the most fragmentary and abbreviated way, and
we decline to consider it. Cooprider did argue to the
district court that the alleged illegal practices were
violations of chapter 93A and we consider that claim below.
Cooprider also asserts that John Hancock intentionally
interfered with contractual relationships. The district
court explained that Cooprider could not base a cause of
action on his own voluntary termination of his relationships
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with other insurance companies. On appeal, Cooprider says
that he does not dispute this ruling but he complains that
the district court failed to discuss his claim that John
Hancock interfered with Cooprider's contractual relationships
with agents whom he brought with him to John Hancock. Once
again, we do not think that Cooprider has preserved this
claim.
It is true that the complaint contains a brief reference
to Cooprider's severed relationships not only with other
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insurance companies but with other agents who served such
companies. But his opposition to summary judgment discussed
only Cooprider's own relationship with those companies, and
the resurrection on appeal of a claim regarding Cooprider's
agents comes too late. We add that Cooprider's brief does
not illuminate the nature of Cooprider's alleged contractual
relationships with those agents or explain what interference
he claims to have occurred.
Finally, plaintiff claims violations of Mass. Gen L. ch.
93A 11, which provides "a private right of action to a
person who is engaged in business and suffers a loss as a
result of an unfair or deceptive act or practice by another
person also engaged in business." See Nader v. Citron, 372
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Mass. 96, 360 N.E.2d 870 (1977). Cooprider's complaint gave
no hint of the basis for this claim, merely alleging at the
end of the complaint that everything previously alleged in
the entire document made out a violation of chapter 93A. In
discussing chapter 93A, Cooprider's opposition to summary
judgment referred to the allegedly illegal practices that
were the subject of his post-termination letter. It then
went on to assert that the acts underlying his contract claim
also gave rise to liability under chapter 93A.
The district court dismissed the chapter 93A claim on
the ground that it related to acts occurring primarily abroad
and was therefore outside chapter 93A's jurisdictional
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requirements. See Mass. Gen L. ch. 93A, 11. On appeal,
Cooprider ignores his prior suggestion that the contract
claim falls under chapter 93A and Cooprider argues in this
court that the supposed illegal practices occurred primarily
in Massachusetts. It is quite likely that the district
court's remarks were directed, quite appositely, only to
Cooprider's effort in opposing summary judgment to recast his
contract claim as one under chapter 93A.
There is, however, not the slightest reason to remand to
obtain the district court's evaluation of Cooprider's
alternative chapter 93A claim based on the supposed illegal
practices. As to those, Cooprider argues that John Hancock
was making its European agents register as Massachusetts
agents, perjuriously giving John Hancock's in-state address
as their residences. Assuming arguendo that this occurred--
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and John Hancock is mysteriously silent on this point--there
is no hint whatever in Cooprider's complaint, opposition to
summary judgment or principal brief in this court as to how
the requirement or the perjury themselves directly affected
Cooprider.
Finally, Cooprider argues that the district court denied
him the opportunity to conduct adequate discovery. The
district court held a scheduling conference at the outset of
the litigation at which Cooprider's counsel agreed to a 60-
day timetable for discovery on the dispositive issues of
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authority and ratification. Cooprider apparently made no
effort during that period to depose the three witnesses,
McDonnell, Horack and Woolley, most likely to possess the
necessary information. The district court acted well within
its discretion in denying Cooprider's later motion to permit
him to conduct numerous depositions at home and abroad.
This case appears to have had no merit from the outset.
The district judge is to be congratulated, not faulted, for
focusing the discovery, holding the parties to the scheduling
order, and crisply disposing of Cooprider's diffuse claims on
summary judgment. Nothing in the district court's decision
warranted this appeal.
Affirmed.
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