U.S. FUNDING, INC. OF AMERICA vs. BANK OF BOSTON CORPORATION.

ARMSTRONG, J. The plaintiff appeals from a judgment dismissing its amended complaint with prejudice under Mass.R.Civ.P. 11(a), 365 Mass. 753 (1974). The relevant history is as follows.

The original complaint alleged that the defendant agreed to provide the plaintiff with a line of credit in the amount of $250,000 and failed to extend the credit in breach of the conditions of the agreement. As a result, the complaint alleged, the plaintiff "suffered great financial loss, was put to great

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expense and sustained a diminution in the value of its business"; it sought $1,000,000 in compensatory damages and three times that amount, plus attorney's fees, for a bad-faith violation of G. L. c. 93A. The defendant moved to strike the complaint for two reasons: first, violation of G. L. c. 231, Section 13B, prohibiting the inclusion of an ad damnum or specific monetary amount unless damages are liquidated or are ascertainable by calculation and supported by an affidavit setting out the method employed in the calculation; and, second, violation of Mass.R.Civ.P. 11(a), [Note 1] because "[i]t is obvious that the [p]laintiff has merely selected a number out of the air, without good grounds for support, for the purposes of annoyance, intimidation and harassment. . . . Plaintiff's unverified and unsupported claim is not advanced in good faith. . . ."

The motion to strike was allowed without a statement of the ground, but the plaintiff was given leave to file a motion to amend the complaint. In response, the plaintiff filed such a motion, together with an amended complaint, different from the original complaint only in that it did not specify the amount of damages sought. The defendant filed an opposition and a motion to strike. The ground was that the complaint still violated rule 11. Five transgressions were listed: (1) The commitment letter was signed not by the defendant but by the First National Bank of Boston, (2) count 2, for breach of contract, is redundant of count 1; (3) count 3, seeking damages for fraud and violations of c. 93A, fails to identify the misrepresentation with the specificity required by Mass.R.Civ.P. 9(b), 365 Mass. 751 (174); (4) the complaint, by failing to substantiate some amount as damages, fails to show that the Superior Court had jurisdiction as opposed to the District Court under G. L. c. 231, Section 102C; and

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(5) the Civil Action Cover Sheet [Note 2] was filed in bad faith, because it states that the plaintiff was "harmed in reputation" but nowhere is a libel or slander count pleaded. Pervading the motion were two other objections: first, that the complaint is substantially unchanged from the one previously struck, except for deletion of the ad damnum; second, that the $1,000,000 claim for damages (still appearing in the "Civil Action Cover Sheet") is "absurd on its face" for breach of a commitment to lend $250,000 "since it assumes that the U.S. Funding had a four hundred percent rate of return on its assets after carrying costs, expenses, and salaries . . . . Rather, on information and belief, [p]laintiff had a return on assets of 1.2 percent; below the industry average of 6-8%."

The motion to strike concluded as follows: "The only inference after reviewing the [c]omplaint and its patent deficiencies is that the suit was filed for the purpose of harassing the [d]efendant and attempting to recover some nuisance value from the transaction. It is clearly improper and not advanced in good faith. It should be stricken and sanctions imposed."

It was error to strike the amended complaint. The complaint is a common garden variety pleading, stating claims for breach of contract and G. L. c. 93A. Shorn of its ad damnum, it is an acceptable complaint, not particularly detailed, but well within the boundaries laid down by Nader v. Citron, 372 Mass. 96, 98, 104-105 (1977). It does not show "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 98, quoting from Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Charbonnier v. Amico, 367 Mass. 146, 152-153 (1975); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85,

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89 (1979); Wrightson v. Spaulding, 20 Mass. App. Ct. 70, 71-73 (1985).

The specific points urged by the defendant in its motion to strike border on the frivolous. (a) There is no rule of law that limits damage awards for breach of a contract to lend money to nominal damages. Actual damages that were foreseeable can be awarded if substitute financing is unavailable. See Harsha v. State Sav. Bank, 346 N.W.2d 791, 796-797 (Iowa 1984); W-V Enterprises, Inc. v. Federal Sav. & Loan Ins. Corp., 234 Kan. 354, 367-368, 373 (1983); St. Paul at Chase Corp. v. Manufacturers Life Ins. Co., 262 Md. 192, 240-243, cert. denied, 404 U.S. 857 (1971). Compare First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 627 (1985). See generally Restatement (Second) of Contracts Section 343 comment e & illustration 15 (1981); 5 Corbin, Contracts Section 1078, at 447-448 (1964); 11 Williston, Contracts Section 1411, at 614 (3d ed. 1968); Annotation, Measure and Elements of Damages for Breach of Contract to Lend Money, 4 A.L.R.4th 682, 698-703 (1981). (b) The Superior Court had jurisdiction even though the action might be remanded to the District Court under G. L. c. 231, Section 102C. See G. L. c. 212, Section 4 (general jurisdiction of Superior Court); G. L. c. 218, Section 19 (concurrent jurisdiction of District Courts in "all civil action[s] in which money damages are sought"). (c) While Mass.R.Civ.P. 9(b) requires specification of circumstances in "averments of fraud, mistake, duress or undue influence," the concept of "unfair or deceptive acts or practices" made actionable by G. L. c. 93A "goes far beyond the scope of the common law action for fraud and deceit," Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703 (1975), and does not necessarily require similar pleading specificity. (d) The reference in the cover sheet to seeking compensatory damages for injury to the reputation of the plaintiff's business may be unachievable under settled law but it is not a basis for dismissal of the complaint (which makes no reference to such damages). (e) If there is any ground for the defendant's motion that has possible merit, it is that the plaintiff's dealings were with First National Bank

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of Boston rather than with the named defendant (Bank of Boston Corporation). As to this, however, the record supplies on factual basis for a conclusion that the plaintiff did not contract with Bank of Boston Corp. If it did, the appropriate remedy would normally be substitution of the correct party defendant rather than dismissal of the action -- particularly if it is shown that the corporations are related and that there has been no prejudice caused to the correct defendant by the delay.

More generally, we think that the judgment in this case represents an inappropriate use of rule 11. It is true that rule 11 is "a useful tool to restrain frivolous and abusive litigation," Anderson v. Cryovac, Inc., 96 F.R.D. 431, 431 (D. Mass. 1983), and that, unlike Federal rule 11, [Note 3] Massachusetts rule 11 retains the provision for striking pleadings that are signed with intent to defeat the purpose of the rule (such as an intent to harass or to cause needless delay or expense). Dismissal was ordered in this case, however, before the filing of any answer or other responsive pleading and in the absence of affidavits, depositions, answers to interrogatories, or testimony. The result is a record devoid of a factual basis for concluding that the plaintiff's claim is either frivolous or improperly motivated.

"All fact issues raised by pleadings or other papers should be resolved by the usual litigation processes before questions of honesty are addressed, and no investigation or discovery directed only toward honesty should be allowed until such issues have been resolved, by trial or otherwise, in the moving party's favor." Risinger, Honesty in Pleading and Its Enforcement: Some "Striking" Problems with Federal Rule of

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Civil Procedure 11, 61 Minn.L.Rev. 1, 61-62 (1976). "Rule 11 should not be used to raise issues of legal sufficiency that more properly can be disposed of by a motion for a more definite statement or by a motion for summary judgment." 5 Wright & Miller, Federal Practice & Procedure Section 1334 (1969).

The cases relied on by the defendant do not support the use of rule 11 to jump the gun. Rhinehart v. Stauffer, 638 F.2d 1169 (9th Cir. 1980), permitted dismissal apparently at the pretrial conference stage of the litigation after it appeared that the plaintiff's attorney had signed a complaint without sufficient knowledge of the matter to be able to discuss it with opposing counsel and without having even discussed the case with, or received information about the case from, his client. In Murray v. Dominick Corp. of Canada, Ltd., 117 F.R.D. 512 (S.D.N.Y. 1987), the dismissal came during a trial that showed that certain pretrial submissions of the plaintiff contained material statements of fact that the judge found to have been knowingly false. In Anderson v. Cryovac, Ltd., 96 F.R.D. at 432, the complaint was not dismissed.

A defendant who wishes to avoid the expense of a trial to defend against a frivolous, improperly motivated claim, is not without recourse. "If a complaint lacks merit, the defendant should take the appropriate steps to cause the matter to be brought within the purview of rule 56(b), 365 Mass. 824 (1974)." Wrightson v. Spaulding, 20 Mass. App. Ct. at 72. Having first established that the complaint lacks merit, the defendant may then proceed in appropriate cases to avail himself of the remedies afforded by rule 11 and by G. L. c. 231, Section 6F, which may include costs, damages, and attorneys' fees. See New England Allbank for Sav. v. Rouleau, ante 135, 141 n.5 (1989).

Judgment reversed.