Rodi v. Southern New England School of Law

Decision Date10 November 2004
Docket NumberNo. 03-2502.,03-2502.
PartiesJoseph RODI, Plaintiff, Appellant, v. SOUTHERN NEW ENGLAND SCHOOL OF LAW et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

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.

Before TORRUELLA, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

This is an appeal from a terse 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.


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 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.

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 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. 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 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.


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 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...

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