United States Court of Appeals For the First Circuit No. 21-1044 JOSEPH B. SHEA,
Plaintiff, Appellant,
v.
PETER MILLETT,
Defendant, Appellee,
ALM RESEARCH LLC,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Allison D. Burroughs, U.S. District Judge]
Before
Lynch, Kayatta, and Gelpí, Circuit Judges.
David R. Suny, with whom Mary Theresa Moran and McCormack Suny LLC were on brief, for appellant. Joseph P. Davis, III, with whom Mian R. Wang, Alison T. Holdway, and Greenberg Traurig, LLP were on brief, for appellee.
May 27, 2022 AMENDED OPINION
The original version of this opinion was filed on May 19, 2022,and remains on file, under seal, in the Clerk's Office. LYNCH, Circuit Judge. In this action under
Massachusetts law by Joseph B. Shea ("Shea") for an alleged breach
of an oral contract by Dr. Peter Millett ("Millett"), the district
court on cross-motions entered summary judgment for Millett. The
district court correctly concluded that Shea had not satisfied the
special provision of the Massachusetts statute of frauds for
brokers and finders, Mass. Gen. Laws ch. 259, § 7, to establish a
contractual obligation for Millett to make payments to Shea beyond
June 30, 2016. We affirm.
I.
We refer to the district court decision for a fuller
discussion of the facts. Shea v. Millett, No. 17-cv-12233, 2020
WL 6586368 (D. Mass. Nov. 10, 2020). We discuss for our analysis
the particular facts on which Shea relies. Importantly, it is
undisputed that Millett never signed any writing agreeing to pay
Shea for the period Shea alleges. Shea's claims are based on his
alternative arguments that the Massachusetts statute of frauds
does not apply and that, even if it does, it is satisfied by a
series of writings and statements in the record.
Millett is an orthopedic surgeon. He first met Shea --
a former sales representative of orthopedic sports medicine-
related products manufactured and developed by Arthrex, Inc. -- in
July 2001 at a sports medicine-focused meeting in Colorado. Shea
introduced Millett to Arthrex around that time, and Millett has
- 2 - been a consultant and product-development surgeon for Arthrex
since at least 2003.
In March 2010, Millett spoke with Shea at a medical
conference in New Orleans, seeking Shea's help in negotiating a
deal with Arthrex for Millett's work on certain products. Millett
believed Shea had contacts at Arthrex that would be valuable to
Millett's efforts in obtaining a royalty agreement with the
company. The two had a ten- to fifteen-minute conversation at a
bar about such an arrangement. Shea testified at his deposition
that Millett offered during that conversation "15 percent of what
[Millett] get[s] paid," to which Shea responded he "would rather
get 10 percent for the life of the deal." Although the parties
"didn't really discuss the details," Shea understands this
conversation to have created a binding agreement. Millett
disagrees.
The parties continued to discuss their arrangement
between March and June 2010. In an email dated April 2, 2010,
with the subject line "Agent agreement," Shea wrote the following
to Millett:
I'm excited about getting started on our new business relationship and I wanted to summarize our agreement with respect to the work that I will perform as your agent and business consultant. . . .
*Consulting fee: $200.00 per hour . . . billed 15 minute increments, when preparing documents, meeting with potential partners and
- 3 - discussing details, offers and plans with you. You will receive a monthly or weekly email invoice as you prefer. . . .
*I will be paid 10 percent of any royalties, consulting fees, equity earned after the first $150,000 per year that you earn. . . .
Millett did not respond to this email.
Shea sent Millett another email discussing the
arrangement on April 7, 2010, this time adding a proposal for a
"performance bonus . . . based on the significance of the deal
signed with [their] new partner." There is no record of Millett
responding to that email. On June 2, 2010, Shea sent Millett an
invoice for 26.5 hours of consulting work at a rate of $200 per
hour. Millett paid the invoice.
Five days later, Shea forwarded to Millett his April 2
email, asking him to "read it and email to confirm that [he] ha[s]
read it and agree[s]." Millett responded the same day, asking
Shea to "clarify [his] thoughts on the payments on royalties and
payments on consulting over 150k," as he "assume[d] this [wa]s for
Smith [&] Nephew only." (emphasis added). Smith & Nephew is
Arthrex's competitor. Millett also asked: "[W]hat is the Term on
this? Is this forever?" Millett's communication certainly does
not confirm any agreement with Shea's proposed terms.
Shea responded the same day, June 7, 2010, that he
thought the ten percent applied to "any royalties that [Millett
- 4 - was] paid by [S]mith [&] [N]ephew or Arthrex" if Millett and Shea
"were able to get [Arthrex] to pay [Millett] retroactively . . .
based on [their] negotiations with [Arthrex's representative]
. . . ." As for the duration of the agreement, Shea asked: "tell
me your thoughts . . . I think it should last as long as you[r]
contract with [S]mith [&] [N]ephew or Arthrex lasts." Shea also
wrote that Millett could call him that night to discuss. There is
no record of Millett ever agreeing to these terms, either by email
or orally.
The parties view these exchanges differently. Shea
testified at his deposition that they obligated Millett to pay
Shea ten percent of any royalties Millett earned for "[a]s long as
[Millet] get[s] paid by Arthrex." According to Shea, Millett was
obligated to do so, regardless of whether Shea brought new business
deals to Millett. To the contrary, Millett testified in his
deposition: "I don't think we had mutually agreed on many things,
but we agreed on certain things," e.g., the "10 percent for
royalties after the first $150,000 was subtracted out if he could
negotiate the royalty contract . . . ." Millett stated that he,
at the time, expected Shea would "bring new opportunities," and
that Millett "never agreed to an agreement in perpetuity."
- 5 - The 2011 corporate minutes from Millet's company, ALM
Research LLC (the "2011 minutes"),1 reflect Millett's understanding
and state: "Joe Shea -- negotiating business deals. Percentage
of royalties, bring new business opportunities to ALM." The
minutes further state: "The verbal agreement with Joseph Shea
should be formalized. Contact Joseph Shea about his willingness
to formalize an agreement." (emphasis added). Nothing was ever
formalized. Shea performed no relevant work for Millett after at
least 2011 and secured no new deals for him with Arthrex or any
other company.
In August 2010, Millett received a draft royalty
agreement from Arthrex, which he executed in September 2010 (the
"2010 Royalty Agreement"). Under the 2010 Royalty Agreement, the
relevant royalty payments terminated on March 31, 2016, and could
be extended for a multi-year period "by mutual agreement of the
parties."
Millett, through his wife as bookkeeper, began paying
Shea ten percent of all royalties he received from Arthrex (for
products both included in and outside of the 2010 Royalty
Agreement), although "early on," Shea and Millett disagreed about
their arrangement, including over the duration of the payments to
1 ALM Research was dismissed from this lawsuit in January 2019. We refer to Millett and ALM Research collectively as "Millett."
- 6 - Shea. Millett testified at his deposition that he paid Shea, not
because Shea "fulfill[ed] what [they] agreed upon," but because
Shea "was going through a period of personal hardship" and
"professional hardship," and Shea "was a friend."
In July 2013, Millett sent Shea a draft "Mutual
Settlement and Release" (the "2013 Draft Release"), apparently to
resolve disagreements about the terms of their 2010 oral agreement,
including the duration. Shea disputes that there was any
disagreement over the 2010 oral agreement and argues the parties
never agreed to limit the duration of payments to Shea to the
initial term of any royalty agreement secured. The 2013 Draft
Release cited April 30, 2015 as the termination date of the
payments to Shea. The Draft Release also states, inter alia:
QUARTERLY PAYMENTS to Mr[.] Shea will be calculated based upon a previously agreed upon formula of 10% of the net royalty payments to ALM Research, LLC that are paid quarterly by Arthrex, Inc. for a contract which was negotiated with the assistance of Mr[.] Shea in August of 2010 between Dr[.] Millett / ALM research and Arthrex, Inc.
Based on our review of the record, neither Shea nor Millett ever
signed that Draft Release. In fact, Millett made payments to Shea
until June 30, 2016 (through the initial term of the 2010 Royalty
Agreement),2 for a total of more than $600,000.
2 Although Shea stated in his first amended and proposed second amended complaints that Millett failed to pay him $14,999 "due in the first half of 2016," Shea makes no mention on appeal
- 7 - In November 2015, Arthrex emailed Millett to inform him
that the relevant royalty payments under the 2010 Royalty Agreement
were set to expire. After that, Arthrex and Millett -- without
the help of Shea -- agreed to extend the Agreement (the "2016
Extension"). The relevant royalties under the 2016 Extension were
set to expire on a date certain several years later. In August
2016, Millett left Shea a voicemail and sent him a text message
informing Shea of the expiration of the 2010 Royalty Agreement.
Shea filed this lawsuit in 2017, asserting that he is
owed payments beyond the final payment made on June 30, 2016, based
on the purported oral contract from 2010.3 In 2018, Millett entered
into a new royalty agreement with Arthrex that explicitly
terminated the 2016 Extension (the "2018 Royalty Agreement"). The
relevant royalty payments under the 2018 Royalty Agreement expire
on a defined termination date a few years after the effective date.
Shea played no role in Millett's receipt of that royalty contract.4
of the assertion and does not point to anything in the record that would support it. He states instead that he is seeking "the balance of the extended term of the [2010] Royalty Agreement." 3 Shea asserted claims for breach of contract, promissory estoppel/detrimental reliance, and violation of Mass. Gen. Laws ch. 93A, and sought damages, a declaratory judgment, and injunctive relief. 4 In sum, Millett has entered into several royalty agreements with Arthrex over the course of their relationship. In addition to the 2010, 2016, and 2018 agreements and extensions just described, Millett and Arthrex are parties to two unrelated agreements, one executed in 2007 and the other in 2008.
- 8 - On October 26, 2020, the district court entered summary
judgment in favor of Millett as to all claims against him, and the
court denied Shea's motion for leave to amend his complaint. Shea,
2020 WL 6586368, at *1. The court held that any agreement between
the parties was unenforceable under the Massachusetts statute of
frauds, Mass. Gen. Laws ch. 259, §§ 1, 7. Id. at *9–11. On Shea's
motion, the district court entered a separate final judgment on
Shea's claims under Fed. R. Civ. P. 54(b). Shea appeals from that
judgment, arguing that the statute of frauds is inapplicable and,
in any event, that the statute has been satisfied. We affirm.
II.
Under Massachusetts law, whether an agreement is
enforceable under the statute of frauds is a question of law, Simon
v. Simon, 625 N.E.2d 564, 567 (Mass. App. Ct. 1994); cf. Armstrong
v. Rohm & Haas Co., 349 F. Supp. 2d 71, 78 (D. Mass. 2004) ("Whether
an alleged contract is legally enforceable in light of indefinite
terms is a question of law for the court."), which we review de
novo, Spectrum Ne., LLC v. Frey, 22 F.4th 287, 291 (1st Cir. 2022).5
5 This court expressed concern as to the parties' attempts to manufacture finality for statutory appellate jurisdiction purposes and questioned whether the voluntary dismissal of certain counterclaims without prejudice to finalize a judgment can "ripen" a premature notice of appeal. We need not resolve that matter. "[W]e conclude that the prudent course here is, as we sometimes do, to assume [statutory] appellate jurisdiction and proceed to the merits, given how clear they are." Donahue v. Fed. Nat'l Mortg. Ass'n, 980 F.3d 204, 207 (1st Cir. 2020).
- 9 - The broker/finder provision of the Massachusetts statute
of frauds provides in relevant part:
Any agreement to pay compensation for service as a broker or finder or for service rendered in negotiating a loan or in negotiating the purchase, sale or exchange of a business, its good will, inventory, fixtures, or an interest therein, including a majority of voting interest in a corporation, shall be void and unenforceable unless such agreement is in writing, signed by the party to be charged therewith, or by some other person authorized.
Mass. Gen. Laws ch. 259, § 7.6 The provision's "purpose [is] to
discourage claims for commission based on conversation which
persons heard differently or remembered differently," as is the
case here. Alexander v. Berman, 560 N.E.2d 1295, 1298 (Mass. App.
Ct. 1990).
For the reasons next described, we hold that Shea's
breach of contract and related claims are barred by this statute,
as Shea orally agreed to act as a broker or finder, and none of
the writings he proffers meet his burden to show the necessary
terms for a legally binding contract that would require Millett to
pay Shea beyond what he has already received.
6 The district court also held, and Millett argues on appeal, that the alleged agreement falls under Mass. Gen. Laws ch. 259, § 1, which requires a writing for any agreement "that is not to be performed within one year." Because we hold the agreement is covered by the broker/finder provision, we need not decide whether the one-year provision also applies.
- 10 - A. Summary Judgment
Our review of a district court's grant of summary
judgment is de novo. See Bose Corp. v. Ejaz, 732 F.3d 17, 21 (1st
Cir. 2013). Summary judgment is appropriate "when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law." Id. (quoting Cortés-Rivera v. Dep't
of Corr. & Rehab. of P.R., 626 F.3d 21, 26 (1st Cir. 2010)). Where
the parties file cross-motions for summary judgment, we "view each
motion separately, drawing all inferences in favor of the nonmoving
party." Fadili v. Deutsche Bank Nat'l Tr. Co., 772 F.3d 951, 943
(1st Cir. 2014).
i. Shea Was a Broker or Finder
Massachusetts courts construe Mass. Gen. Laws ch. 259,
§ 7 liberally and give ordinary meaning to the terms "broker" and
"finder." See Cantell v. Hill Holliday Connors Cosmopulos, Inc.,
772 N.E.2d 1078, 1081 (Mass. App. Ct. 2002). A broker is an "agent
who acts as an intermediary or negotiator" or who is "employed to
make bargains and contracts between other persons in matters of
trade, commerce, and navigation," id. at 1082 (quoting Broker,
Black's Law Dictionary (7th ed. 1999)), whereas a finder is "[a]n
intermediary who brings together parties for a business
opportunity," id. at 1082 (alteration in original) (quoting
Finder, Black's Law Dictionary (7th ed. 1999)). See also Corp.
Dev. Assocs. v. Staples, Inc., No. 122183, 2013 Mass. Super. LEXIS
- 11 - 9, at *9 (Mass. Super. Ct. Jan. 31, 2013) ("A finder differs from
a broker-dealer because the finder merely brings two parties
together to make their own contract, while a broker-dealer usually
participates in the negotiations." (quoting Finder, Black's Law
Dictionary (9th ed. 2009))). Massachusetts courts apply the
provision to arrangements where, as here, one of the parties agrees
to help the other facilitate a deal with a third party. Cf.
Cantell, 772 N.E.2d at 1082; Corp. Dev. Assocs., 2013 Mass. Super.
LEXIS 9, at *9.
The undisputed evidence is that Shea's services to
Millett were that of a "broker" or "finder" as contemplated by the
statute.7 Shea testified at his deposition that he understood his
"obligations w[ere] to help [Millett] secure a royalty deal that
[Millett] had previously been unable to secure," and agreed that
the oral "agreement had Dr. Millett paying [Shea] for [his] time
negotiating deals." Shea's second June 7, 2010 email references
his and Millett's "negotiations with [Arthrex's representative]."
And in 2010, Shea reached out to representatives of various medical
device companies to discuss Millett and help facilitate a business
deal between Millett and a third party: Arthrex.8
7 There is no merit in Shea's overbroad claim that whether a party is a broker or finder is "not amenable to resolution on summary judgment." 8 That Millett had a prior business relationship with Arthrex does not change this result. See Alexander, 560 N.E.2d at 1297 (determining a plaintiff was a broker where he brought
- 12 - We turn next to the question of whether or not the
writings and statements on which Shea relies satisfy the statute
of frauds.
ii. The Statute of Frauds Is Not Satisfied
Shea concedes that Millett never signed any writing in
which Millett agreed to make payments to Shea for as long as Shea
alleges. Shea's case depends on the emails exchanged by the
parties in 2010, the 2010 Royalty Agreement, the payments Millett
made to Shea through June 30, 2016, Millett's admission in his
deposition that the parties had an oral agreement of some kind,
the 2011 minutes, and the 2013 Draft Release. Shea argues these
writings and statements adequately establish the parties' mutual
understanding that Millett would continue paying Shea at least
through the expiration of the 2016 Extension.9 Millett's position
is that no enforceable contract was formed, as he did not sign any
of these writings, and the writings fail to reflect a meeting of
the minds on the terms necessary for a contract, particularly the
duration.
together for a transaction two parties who had known each other for a decade). Besides, Shea did introduce Millett to Arthrex, albeit several years prior to the 2010 Royalty Agreement. 9 For our purposes, it is irrelevant whether Millett and Arthrex entered into a new royalty agreement in 2016, or merely agreed to extend the 2010 Royalty Agreement.
- 13 - To satisfy the statute of frauds, one or more writings
"must contain directly, or by implication, all of the essential
terms of the parties' agreement," Simon, 625 N.E.2d at 567; see
also In re Rolfe, 710 F.2d 1, 3 (1st Cir. 1983) (Breyer, J.)
(quoting Restatement (Second) of Contracts § 132), and be signed
by the party to be charged, Cousbelis v. Alexander, 54 N.E.2d 47,
48 (Mass. 1994) (quoting Des Brisay v. Foss, 162 N.E. 4, 6 (Mass.
1928)). The writings "must be accurate[,] must contain all the
provisions of the oral contract with which the plaintiff is seeking
to charge the defendant," Harrington v. Fall River Hous. Auth.,
538 N.E.2d 24, 29 (Mass. App. Ct. 1989) (quoting A.B.C. Auto Parts,
Inc. v. Moran, 268 N.E.2d 844, 847 (Mass. 1971)), and must set
forth these essential terms with "reasonable certainty," Simon,
625 N.E.2d at 567 (citing Restatement (Second) of Contracts
§ 131(c) (Am. L. Inst. 1979)); see also Pappas Indus. Parks, Inc.
v. Psarros, 511 N.E.2d 621, 623 (Mass. App. Ct. 1987) (describing
past "caution[s] against the transformation of general expressions
of intent, when significant details remain to be resolved, into
legally binding agreements," "[p]articularly in the context of a
complex commercial transaction"). A party's performance under an
alleged oral agreement will not, without more, remove the agreement
from the statue of frauds. See Marcy v. Marcy, 91 Mass. (9 Allen)
8, 12 (1864); Meng v. Trs. of Bos. Univ., 693 N.E.2d 183, 186–87
& n.4 (Mass. App. Ct. 1998).
- 14 - None of the writings proffered by Shea (and certainly
nothing signed by Millett) evidences agreement on the necessary
terms for a contract that would require Millett to pay Shea beyond
June 30, 2016. The missing material terms include "the time for
payment, the duration of the contract, and . . . the parties'
rights and obligations." Earley & Assocs. v. IBM Corp., No. 06-
P-873, 2007 Mass. App. Unpub. LEXIS 806, at *9 (Mass. App. Ct.
Aug. 28, 2007); see also Conway v. Licata, 104 F. Supp. 3d 104,
114 (D. Mass. 2015) ("The contract, as recited, also is silent as
to the duration of the agreement, the duration of any period for
which Defendants would be entitled to a commission, the ability of
the parties to terminate the agreement, and the terms, if any,
that would regulate any such termination," rendering the purported
contract "too indefinite to be enforced."). And based on the
record, "we cannot supply these provisions without writing a
contract for the parties which they themselves did not make." Held
v. Zamparelli, 431 N.E.2d 961, 962 (Mass. App. Ct. 1982); see also
Simon, 625 N.E.2d at 567 ("It is a court's function . . . to
determine what provisions are essential to an agreement sought to
be enforced and whether an omitted provision can be supplied by
implication.").
First, no writing signed by Millett specifies, or
unambiguously incorporates any other document that specifies, the
durational term of any agreement to pay Shea, as he claims, beyond
- 15 - the initial term of the 2010 Royalty Agreement. We said in In re
Rolfe that "only one of several writings need be signed if 'the
writings in the circumstances clearly indicate that they relate to
the same transaction.'" 710 F.2d at 3 (Breyer, J.) (quoting
Restatement (Second) of Contracts § 132). Rolfe does not assist
Shea. In Rolfe, there was "no ambiguity or uncertainty," unlike
here, that the writing signed by the parties asserting the statute-
of-frauds defense formed part of the same transaction as two
documents not signed by them, which, in total, set forth all
essential terms of the agreement. Id. Further, under the
circumstances of this case (especially given Shea's lack of
involvement in securing the 2016 Extension) we cannot say that "no
injustice" would arise from holding Millett liable based on Shea's
effort to exploit the uncertainties often inherent in claims of
oral agreements. See id.
The parties' email exchanges do not establish an
agreement as to any of these essential terms sufficient to satisfy
the statute of frauds. To the contrary, the emails containing the
most detailed proposed terms are signed only by Shea, not Millett.
Further, the exchanges establish that Millett did not consent to
those terms in writing despite Shea's explicit request that Millett
"confirm that [he] ha[d] read [them] and agree[s]."
Further, the emails show that the parties disagreed and
had not reached any agreement about Millett's payments beyond the
- 16 - expiration of the initial term of the 2010 Royalty Agreement, if
at all. See Situation Mgmt. Sys., Inc. v. Malouf, Inc., 724 N.E.2d
699, 703 (Mass. 2000) (requiring for an enforceable contract, the
parties to "have progressed beyond the stage of 'imperfect
negotiation.'" (quoting Lafayette Place Assocs. v. Bos. Redev.
Auth., 694 N.E.2d 820, 826 (Mass. 1998))). Indeed, Millett
explicitly asked Shea in his June 7, 2010 email what the term of
their arrangement would be and whether it would last "forever."
Shea responded: "[Y]ou tell me your thoughts . . . I think it
should last as long as you[r] contract with [S]mith [&] [N]ephew
or Arthrex lasts." (emphasis added). Millett did not respond in
writing to Shea's proposal.10 Millett never admitted to an
agreement going beyond the 2010 Royalty Agreement's initial term.
The emails also are silent as to other terms, such as the time any
payment was due, the process for termination, and Shea's specific
duties -- including whether or not he had an ongoing obligation to
secure new deals for Millett. See Conway, 104 F. Supp. 3d at 114
("While the absence of any one of these terms may not have rendered
the contract unenforceable, in aggregate these omissions render
the purported contract too indefinite to be enforced by this
Court." (emphasis added)).
10 The parties apparently also had other communication about the alleged agreement during this time, the exact content of which is not disclosed in the record.
- 17 - The statements in the 2011 minutes and the proffered but
unaccepted 2013 Draft Release undercut Shea's claims. The minutes
say nothing about the agreement's duration. Further, the minutes
provide no basis for showing that Millett understood their
arrangement to require no further clarity and specificity before
it was "formalized," an action that still needed to occur.11 See
Rosenfield v. U.S. Tr. Co., 195 N.E. 323, 325 (Mass. 1935) ("[When]
parties contemplate the execution of a final written agreement,"
a strong inference typically is made that they "do not intend to
be bound by earlier negotiations or agreements until the final
terms are settled."). The 2013 Draft Release suffers from similar
shortcomings.12 The Draft Release -- which does not appear to be
signed by either party -- does not evidence a mutual understanding
as to Shea's obligations under the oral agreement or the duration
or the process for termination. The Draft Release, as to duration,
shows that, as of 2013, Millett intended for the payments to Shea
to end on April 30, 2015. Neither document shows the parties
11 The minutes do mention Shea's obligations, namely, that Shea was expected to "negotiat[e] business deals" and "bring new business opportunities." Shea admits he did not so perform, at least after the 2010 Royalty Agreement was secured. 12 Millett also argues the 2013 Draft Release is inadmissible under Fed. R. Evid. 408 as a settlement agreement, citing Massachusetts Mutual Life Insurance Co. v. DLJ Mortgage Capital, Inc., 251 F. Supp. 3d 329, 332 (D. Mass. 2017). We need not decide this issue.
- 18 - intended for Millett to pay Shea beyond the payments Millett
actually made.
We reject Shea's argument that certain of Millett's
statements -- which Shea calls "admissions" -- made in his
deposition satisfy the statute of frauds so as to require Millett
to pay Shea beyond what he has already.13 Shea's argument raises
two questions: whether an admission at a deposition is sufficient
to eliminate the need for a writing under Mass. Gen. Laws ch. 259,
§ 7; and, if so, whether Millett admitted to an agreement to pay
Shea through the 2016 Extension. We do not resolve the first issue
because Shea does not on appeal14 dispute that Millett made payments
to him during the term of the initial 2010 Royalty Agreement,15 and
none of Millett's statements shows that he admitted he would pay
Shea beyond that term.
13 Neither party points to any authority discussing whether an oral admission by the party to be charged as to the existence of an oral agreement and all its essential terms will get around the writing requirement set forth specifically in Mass. Gen. Laws ch. 259, § 7. 14 Shea has not briefed on appeal the issue of whether Millett failed to make payments to Shea due prior to June 30, 2016, and has waived the argument. See Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011). 15 This "course of conduct" does nothing to establish whether the parties would have agreed in 2010 that payments to Shea should have continued after the expiration of the 2010 Royalty Agreement's initial term.
- 19 - Millett's deposition testimony shows, at most, that he
understood the parties to have agreed only that he would pay Shea
until the expiration of the 2010 Royalty Agreement's initial term.
In an attempt to establish Millett's alleged obligation to pay
beyond that date, Shea first points to Millett's statement that he
and Shea "did not agree to a specific [termination] date other
than what was in the contract." This statement does not support
Shea's construction of the parties' oral agreement. The term,
"the contract," refers only to the original 2010 Royalty Agreement,
under which the relevant royalty payments expired in March 2016.
Millett's statement does not establish, and Shea has pointed to no
other evidence showing, that the parties intended for Shea to
continue receiving payments through the 2016 Extension. Nor does
the statement provide this court with a "mechanism[] to narrow
present uncertainties" on this issue.16 Cf. Lafayette Place
Assocs., 694 N.E.2d at 826.
16 In arguing to the contrary, Shea relies on SAR Group Ltd. v. E.A. Dion, Inc., 947 N.E.2d 1154 (Mass. App. Ct. June 8, 2011) (unpublished table decision, issued pursuant to Massachusetts Appeals Court Rule 1:28). Under Massachusetts law, Rule 1:28 decisions "are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale." See Chace v. Curran, 881 N.E.2d 792, 794 n.4 (Mass. App. Ct. 2008). That is one reason why such decisions may not be cited as binding precedent. Id. Moreover, the defendant in SAR Group had stated that "any obligation that may have existed to pay commissions was only for a 'reasonable time,'" and the court held that "reasonable time" was the type of term that could be construed and applied by a court. 947 N.E.2d at *1, *4. Here, there is no analogous statement signed by
- 20 - Shea also points to Millett's statement that he and Shea
agreed to "10 percent for royalties after the first $150,000 was
subtracted out if [Shea] could negotiate the royalty contract,
which ended up being the 2010 royalty agreement." This statement
likewise does not establish the parties' intent to have Millett
pay Shea beyond the expiration of the 2010 Royalty Agreement's
initial term. It merely confirms that Millett orally told Shea
that he would pay him ten percent of the royalties Millett received
from Arthrex through March 2016, which Millett indisputably did.
Even if Millett admitted in these statements an agreement to pay
Shea for the duration of the initial term of the 2010 Royalty
Agreement, these statements do not support Shea's position that
Millett was required to pay Shea beyond that period.17
Shea attempts to avoid this result by analogizing to the
Uniform Commercial Code ("U.C.C.") statute of frauds and cases
holding under the U.C.C. that an admission by the party to be
charged that a contract was formed removes the agreement from the
statute of frauds. Shea relies, in addition to Massachusetts law,
on Gruen Industries, Inc. v. Biller, which held that a defendant's
"admission need only describe conduct or circumstances from which
Millett, and his deposition testimony expressly rejected any obligation to pay more than he did pay. 17 Simply put, a party cannot escape the statute of frauds to prove an agreement to buy ten apples by pointing to the other party's admission that he agreed to buy five apples.
- 21 - the trier of fact can infer a contract," to rebut a statute of
frauds defense. 608 F.2d 274, 278 (7th Cir. 1979). Unlike here,
the statute of frauds provision in Gruen concerned the U.C.C.
Further, the provision expressly deemed the statute of frauds
inapplicable only when a defendant "admits . . . that a contract
was made for sale of a stated quantity of described securities at
a defined or stated price." Id. at 277–78 (emphasis added)
(quoting Wis. Stat. § 408.319(4)). Here, there is no analogous
exception to the broker/finder provision of the Massachusetts
statute. Compare Mass. Gen. Laws ch. 259, § 7, with id. ch. 106,
§ 2-201(3)(b) (allowing enforcement of an oral contract for a sale
of goods that would otherwise be barred by the statute of frauds
"if the party against whom enforcement is sought admits in his
pleading, testimony or otherwise in court that a contract for sale
was made, but the contract is not enforceable under this provision
beyond the quantity of goods admitted." (emphasis added)). And if
there was such an exception, it would not help Shea, as one would
expect that a necessary term to be admitted in connection with a
commission agreement would be duration. See 37 C.J.S. Frauds,
Statute of § 162 ("[A]n admission is not effective where the
essential terms of the contract are not admitted and are in
dispute."). Millett did not admit to the duration argued for by
Shea.
- 22 - Shea's reliance on Coughlin v. McGrath, 4 N.E.2d 319
(Mass. 1936), is also misplaced. That case, where the parties had
formed an oral partnership, id. at 320, is inapposite. The record
here does not support Shea's contention that he and Millett entered
into a partnership agreement. Millett's casual references to
"partner" or "business advisor" do not as a matter of law establish
such an arrangement. And Shea points to no other evidence
indicating the parties' arrangement operated as a partnership.
The parties may have reached some form of an agreement
in 2010. We hold that the statute of frauds nonetheless bars this
court from enforcing any such agreement against Millett so as to
require him to pay Shea from July 1, 2016 onward.18
B. Motion for Leave to Amend
We review denials of motions for leave to amend for abuse
of discretion. Pérez v. Hosp. Damas, Inc., 769 F.3d 800, 802 (1st
Cir. 2014). The district court did not abuse its discretion in
denying Shea's second motion for leave to file
an amended complaint. As Shea concedes in his opening brief, his
18 Shea does not challenge the district court's entry of summary judgment as to his Chapter 93A claim as pleaded in the first amended complaint. He also accepts that if Mass. Gen. Laws ch. 259, § 7 applies, his claim for promissory estoppel must fail. We hold the provision does apply and therefore affirm the district court's judgment as to Shea's other claims. See Corp. Dev. Assocs., 2013 Mass. Super. LEXIS 9, at *15–16; Donahue v. Heritage Prop. Inv. Tr., Inc., No. 2001-5006-A, 2006 Mass. Super. LEXIS 471, at *38 (Mass. Super. Ct. Sept. 5, 2006), aff'd, 2009 Mass. App. Unpub. LEXIS 147 (Mass. App. Ct. Apr. 16, 2009).
- 23 - proposed amendments "depend upon the enforceability of the
Contract." Because the district court correctly held that there
was no enforceable contract between the parties requiring Millett
to pay Shea after June 30, 2016, it was not an abuse of discretion
for the court to deny Shea's motion to amend.
III.
Affirmed.
- 24 -