CRA International, Inc.
Donald J. Painter No. 136751
MEMORANDUM AND ORDER ALLOWING PLAINTIFF'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND MOTION TO DISMISS
Kenneth W. Salinger, Justice of the Superior Court.
lawsuit arises from CRA International, Inc.'s short-lived
employment of Donald J. Painter. CRA seeks a declaration
that, because Mr. Painter worked for CRA for less than a
year, Painter is contractually obligated to repay his $30,
000 signing bonus and a $900, 000 loan, pay all interest that
has accrued on that loan, and reimburse CRA for reasonable
attorneys fees and expenses incurred to collect that loan.
Painter asserts that his employment agreement and promissory
note were induced by intentional fraud or negligent
misrepresentations and are therefore " invalid" and
unenforceable. He also asserts a counterclaim for fraud and
seeks leave to amend facts alleged in his counterclaim.
Court concludes that CRA is entitled to the dismissal of
Painter's counterclaim and that Painter's proposed
amendment of his counterclaim would be futile. It also
concludes that, given the facts admitted by Painter in his
answer and the failure of his fraud in the inducement
defense, CRA is entitled to judgment in its favor on its
claim for declaratory judgment. The Court will allow
CRA's motion for judgment on the pleadings and to dismiss
Painter's counterclaim, deny Painter's motion to
amend his counterclaim, deny CRA's motion to strike
Painter's jury demand as moot, and order the entry of a
declaratory judgment in CRA's favor.
CRA's Motion to Dismiss the Counterclaim
counterclaim for fraud fails as a matter of law because it
does not allege any facts plausibly suggesting that CRA made
a false statement of material fact to Painter or that CRA
failed to disclose some material information that it had a
duty to disclose. See generally Lopez v.
Commonwealth, 463 Mass. 696, 701, 978 N.E.2d 67 (2012)
(to survive a motion to dismiss under Mass.R.Civ.P. 12(b)(6),
a complaint or counterclaim must allege facts that, if true,
would " plausibly suggest[ ] . . . an entitlement to
relief") (quoting Iannacchino v. Ford Motor
Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), and
Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Painter's proposed
amendment to his counterclaim would be futile for the same
The Counterclaim Fails to Allege Any Fraud with
of fraudulent inducement must be alleged with particularity
in accord with Mass.R.Civ.P. 9(b). See VMS Realty Inv.,
Ltd. v. Keezer, 34 Mass.App.Ct. 119, 119-20, 606 N.E.2d
1352 (1993). This rule " heightens the pleading
requirements placed on plaintiffs who allege fraud and
deceit." Equipment & Systems for Industry, Inc.
v. NorthMeadows Constr. Co., Inc., 59 Mass.App.Ct. 931,
932, 798 N.E.2d 571 (2003) (rescript). Thus, " at a
minimum, " Painter must support any claim of fraudulent
inducement by specifically alleging " the identity of
the person(s) making the" allegedly fraudulent "
representation, the contents of the misrepresentation, and
where and when it took place, " and must also "
specify the materiality of the misrepresentation, [his]
reliance thereon, and resulting harm." Id. at
existing counterclaim is based on two alleged
misrepresentations by CRA. Neither is sufficient to support a
counterclaim for fraud.
allegation that CRA told Painter that CRA had " done
recent work with a few major clients in the U.S. oil and gas
market" is too vague to support Painter's
counterclaim. To state a claim for fraud, a claimant must
allege facts plausibly suggesting that the defendant
knowingly made a false statement of material fact, that it
did so for the purpose of inducing the claimant to act on it,
and that the claimant reasonably relied upon that false
statement to his detriment. See Masingill v. EMC
Corp., 449 Mass. 532, 540, 870 N.E.2d 81 (2007). Vague
and general statements cannot constitute an unlawful
misrepresentation of fact. Id. at 544 (alleged
representation to employee that supervisor will " make
you whole" held " too vague" to support a
claim for misrepresentation, as a matter of law). It is not
reasonable, as a matter of law, to rely upon " vague and
indefinite" statements like the one CRA allegedly made
regarding recent work. See Martins v. University of
Massachusetts Medical School, 75 Mass.App.Ct. 623, 633,
915 N.E.2d 1096 (2009).
further allegation that CRA asked Painter to confirm that he
would commit himself to working to grow CRA's Marakon oil
and gas industry consulting practice for six to seven years
cannot support a counterclaim for fraud. Asking a potential
employee about his commitment to a business is not a
statement of fact and therefore cannot give rise to a claim
for fraud. Cf. Sahin v. Sahin, 435 Mass. 396, 403,
758 N.E.2d 132 (2001) (" statements of opinion or belief
as to business operations, made without certainty, do not
rise to level of statements of fact and do not constitute
The Proposed Amended Counterclaim Would be Futile
Painter seeks leave to amend his counterclaim in an attempt
to bolster the factual premise for his claim of fraud. The
Court will deny this motion because the proposed amendment
would be futile, in that the amended counterclaim still could
not survive a motion to dismiss for failure to state a claim
upon which relief can be granted. See generally Johnston
v. Box, 453 Mass. 569, 583, 903 N.E.2d 1115 (2009)
(" Courts are not required to grant motions to amend
prior [pleadings] where 'the proposed amendment . . . is
futile.' " (quoting All Seasons Servs., Inc. v.
Commissioner of Health & Hosps. of Boston, 416 Mass.
269, 272, 620 N.E.2d 778 (1993)); Thermo Electron Corp.
v. Waste Mgmt. Holdings, Inc., 63 Mass.App.Ct. 195, 203,
825 N.E.2d 545 (2005) (affirming denial of motion for leave
to assert counterclaim that would have been futile);
Mancuso v. Kinchla, 60 Mass.App.Ct. 558, 572, 806
N.E.2d 427 (2004) (if amendment to add claim could not
survive motion to dismiss, allowing amendment would be
exercise in futility).
proposed amended counterclaim would augment the factual
allegations underlying his counterclaim in two ways. Neither
of these additional categories of allegations would state a
viable claim for fraud.
Painter seeks to allege that CRA withheld material
information from him. Specifically, the amended counterclaim
would allege that CRA failed to disclose that its prior oil
and gas consulting clients were all clients of former CRA
employees who no longer worked for the company. It would also
allege that CRA failed to disclose that its prior oil and gas
consulting clients were all clients of former CRA employees
who no longer worked for the company. It ...