United States Court of Appeals

For the First Circuit

No. 07-1770

JOSEPH RODI,

Plaintiff, Appellant,

v.

SOUTHERN NEW ENGLAND SCHOOL OF LAW;

FRANCIS J. LARKIN; DAVID M. PRENTISS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

 Torruella, Lipez, and Howard, 

Circuit Judges.

Jonathan D. Plaut, with whom Chardon Law Offices was on brief,

for appellant.

Elizabeth A. Houdling, with whom Allen N. David, and Peabody

& Arnold LLP were on brief, for appellees.

June 30, 2008
 Although graduates of provisionally accredited law schools are 1

entitled to the same recognition given to graduates of fully

approved law schools, a law school must be provisionally approved

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HOWARD, Circuit Judge. Joseph Rodi graduated from

Southern New England School of Law ("SNESL") in 2000. Because the

school failed to achieve American Bar Association ("ABA")

accreditation prior to Rodi's graduation, he is unable to sit for

the New Jersey bar examination. As a result, Rodi sued SNESL,

alleging that the deans of the school made false statements to him

regarding the school's accreditation prospects that induced him to

remain at SNESL and forgo other opportunities. He claimed fraud

and a violation of a consumer protection statute. The district

court granted summary judgment for SNESL after concluding that no

reasonable jury could find his claims meritorious. We affirm.

I. Background

We state the facts necessary to set the context for the

case here but include more where needed. We present these facts in

the light most favorable to Rodi. See Hadfield v. McDonough, 407

F.3d 11, 14 (1st Cir. 2005).

In March of 1997, Joseph Rodi applied to Southern New

England School of Law -- a law school unaccredited by the ABA.

Soon after Rodi applied, the ABA's Accreditation Committee

recommended SNESL for "provisional accreditation," which would

allow graduates of the school to sit for the bar examination in all

fifty states. Dean Francis Larkin, then acting dean of SNESL, 1
for at least two years before receiving full ABA accreditation.

 New Jersey requires bar applicants to hold degrees from ABA 2

accredited law schools.

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sent prospective students, including Rodi, a letter detailing this

development. Although Larkin noted that the Committee's

recommendation had to be ratified by two more ABA entities, he

wrote, "We are highly confident of gaining these favorable

approvals at the ABA Annual Meeting in August." Rodi –- who

intended to eventually sit for the New Jersey bar examination --

2

enrolled at SNESL. At all relevant times, the law school catalogue

contained a disclaimer that provided: "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."

Despite Larkin's optimism, in August the ABA denied SNESL

provisional accreditation. It notified SNESL that the school was

not in substantial compliance with a number of ABA accreditation

standards and expressed concern about the school's compliance with

other accreditation standards.

Around a month later, in September of 1997, Dean Larkin

hosted a student meeting at SNESL; Rodi attended. At this meeting,

Larkin said SNESL would reapply for provisional accreditation at

its next opportunity and assured the students that the school had

rectified deficiencies in its application. Larkin also promised
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that the ABA would grant SNESL accreditation, stating "The school

will be accredited by the ABA the next time around and before you

graduate."

In the summer of 1998, following his first year at SNESL,

Rodi sent transfer applications to Rutgers and Seton Hall law

schools. Dean David Prentiss, who had replaced Dean Larkin as

acting dean, received notice of Rodi's interest in transferring.

He wrote Rodi a letter asking him to consider carefully whether a

transfer was in his best interest. In this letter, Prentiss cited

the progress SNESL had made toward achieving ABA accreditation and

noted, "[T]here should be no cause for pessimism about the school's

ultimate achievement of ABA approval." Although Rodi received

Prentiss's letter, he chose not to withdraw his transfer

applications. Both law schools ultimately denied him admission. 

During discovery it was revealed that when both Dean

Larkin and Dean Prentiss made these statements they had concerns

regarding SNESL's prospects for accreditation. Dean Larkin said

that in August of 1997, after the ABA denied SNESL provisional

accreditation, he was not highly confident that SNESL's renewed

application would be successful. Similarly, Dean Prentiss said

that he did not know how the ABA would rule on the renewed

application and that he recognized SNESL was at the low end of the

spectrum with regards to the resources necessary to garner

accreditation. 
 Rodi originally filed suit in July, 2002 in the United States 3

District Court for the District of New Jersey. However, the court

dismissed his case for want of in personam jurisdiction leading him

to file this action in Massachusetts. See Rodi v. S. New Eng. Sch.

of Law, 389 F.3d 5, 11 (1st Cir. 2004) (describing this sequence of

events).

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In November of 1999 -- during Rodi's third year at SNESL

–- the ABA's Accreditation Committee rejected SNESL's renewed

application for accreditation and did not recommend that SNESL be

granted provisional accreditation. The Committee cited SNESL's

failure both to comply with ABA standards and to present a reliable

three-year plan for complying with the standards. SNESL did not

appeal the Committee's decision. Although Rodi graduated from

SNESL in September of 2000, because SNESL failed to receive ABA

accreditation prior to his graduation he is unable to sit for the

New Jersey bar examination.

In June of 2003, Rodi sued SNESL, Larkin, and Prentiss in

the United States District Court for the District of

Massachusetts. He claimed that the defendants' statements 3

constituted fraudulent misrepresentation and violated a consumer

protection statute, Mass. Gen. Laws ch. 93A, §§ 1-11 ("Chapter

93A"). The district court granted the defendants' motion to

dismiss and ruled, without elaboration, that Rodi failed to state

a claim upon which relief could be granted. We reversed the

district court in part and remanded the case for further

proceedings after concluding that Rodi alleged a colorable
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fraudulent misrepresentation claim and that he should be allowed to

amend his Chapter 93A claim to remedy pleading deficiencies. See

Rodi, 389 F.3d at 20-21. 

On remand, Rodi filed a motion for reassignment pursuant

to Local Rule 40.1(K)(2). In this motion, he claimed that the

terms of the remand did not require the original judge to conduct

further proceedings and that no substantial savings of time would

result if the judge did retain the case. The judge denied his

motion, specifically finding that her familiarity with the case

would result in a savings of time.

After discovery, the district court granted SNESL's

motion for summary judgment on Rodi's fraudulent misrepresentation

claim. Although the court questioned whether the deans made false

statements of material fact, it concluded that even if they had

made such statements Rodi's reliance was unreasonable as a matter

of law. The court similarly dispensed with Rodi's Chapter 93A

claim, concluding that Rodi's inability to prove fraudulent

misrepresentation sealed the claim's fate. Rodi appeals.

II. Discussion

Rodi presents three arguments on appeal. His first and

primary argument is that the district court erred in granting

summary judgment to SNESL on his fraudulent misrepresentation

claim. Relatedly, he argues that the court erred in granting

summary judgment to SNESL on his Chapter 93A claim -- which was
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also premised on the conduct underlying his fraud claim. Finally,

Rodi argues that the district judge should have either recused

herself from this case or reassigned it to another judge pursuant

to Local Rule 40.1(K)(2). We take up each claim in turn.

A. Fraudulent Misrepresentation

We review grants of summary judgment de novo. Vives v.

Fajardo, 472 F.3d 19, 21 (1st Cir. 2007). Because this is a

diversity case, Massachusetts law controls. B & T Masonry Constr.

Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 38 (1st Cir. 2004).

Under Massachusetts law, to recover for fraudulent

misrepresentation Rodi must allege and prove that: (i) the

defendants made a false representation of a material fact with

knowledge of its falsity for the purpose of inducing him to act

thereon, (ii) he relied upon the representation as true and acted

upon it to his detriment, and (iii) that his reliance was

reasonable under the circumstances. Rodi, 389 F.3d at 13;

Masingill v. EMC Corp., 870 N.E.2d 81, 88 (2007). Although the

reasonableness of a party's reliance is ordinarily a question of

fact for the jury, Cataldo Ambul. Serv., Inc. v. City of Chelsea,

688 N.E.2d 959, 962 (1998), if no reasonable jury could find the

party's reliance reasonable a court may grant summary judgment.

See Mass. Laborers' Health & Welfare Fund v. Philip Morris, Inc.,

62 F. Supp. 2d 236, 242 (D. Mass. 1999) (citing Saxon Theatre Corp.

v. Sage, 200 N.E.2d 241, 244-45 (1964)).
Although Rodi does identify statements made by other 4

administration and faculty members, he does not specifically argue

that these speakers knowingly made false statements for the purpose

of inducing him to rely or that he reasonably relied on these

statements. Accordingly, we do not examine those statements here.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990)("[I]ssues adverted to in a perfunctory manner, unaccompanied

by some effort at developed argumentation, are deemed waived").

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Rodi focuses his claim of fraudulent misrepresentation on

statements made by Dean Larkin and Dean Prentiss during their

respective stints as deans of SNESL. His argument is as follows: 4

Statements made by the deans, specifically Larkin's statements in

the fall of 1997 and Prentiss's statement in the spring of 1998,

misrepresented SNESL's accreditation prospects. The

misrepresentations were made knowingly because both deans, when

publishing their statements, had information suggesting that

provisional accreditation was unlikely. The deans spoke for the

purpose of inducing Rodi to remain at SNESL, fearing an exodus of

students would cost the school a substantial amount of money and

further undermine the school's chances of achieving accreditation.

Because he trusted the deans, whom he assumed had access to

information regarding the school's true accreditation status, Rodi

relied on their statements and chose to forgo opportunities

available to him, such as the pursuit of a Ph.D. As a result of

his forbearance, he suffered damages including lost tuition, salary

that would have been available to him had he held a job during his
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years of attendance at SNESL, and potentially the loss of financial

benefits associated with holding a Ph.D.

After consulting the summary judgment record, we find his

argument unpersuasive and conclude that the district court

correctly granted summary judgment to SNESL. We do so because even

assuming that Dean Larkin and Dean Prentiss made false statements

of material fact for the purpose of inducing Rodi to remain at

SNESL, no reasonable jury could find (1) that Rodi relied on their

statements, or (2) that his reliance was reasonable. We address

the frailties in Rodi's fraudulent misrepresentation claim in that

order.

Rodi claims that he relied on statements made by the

deans but this is directly contradicted by his own actions. In the

summer of 1998, following Larkin's statements, Rodi sent transfer

applications to two law schools: Rutgers and Seton Hall. Despite

Prentiss's letter asking him to reconsider his decision to seek a

transfer, Rodi chose not withdraw his applications. Rodi's

attempts to transfer to an ABA accredited law school strongly

suggest that he did not believe the deans' statements regarding

SNESL's prospects for ABA approval.

Rodi's failure to offer an explanation for his unyielding

pursuit of a transfer is damning. Rodi could have easily offered

plausible explanations for both his attempted transfer and his

failure to withdraw his applications that would have been
 For example, Rodi could have offered evidence that he sought a 5

transfer because he wanted to attend a school closer to his home in

New Jersey and that he did not withdraw his applications simply

because of the hassle of doing so. 

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technically compatible with his assertion that he relied on

Larkin's and Prentiss's statements. Instead, he says nothing and 5

thus fails to undercut the powerful inference that he never relied

on what the deans were saying regarding accreditation in the first

place.

Rodi, perhaps realizing the significance of his failure

to withdraw the application, attempts to shore up the reliance

element of his claim by baldly asserting that he did rely and by

adding that, if not for the deans' statements, he would have

pursued a Ph.D. His effort falls short. First, his claim that he

did rely is merely a conclusory allegation insufficient to defeat

summary judgment. See Medina-Muñoz v. R.J. Reynolds Tobacco Co.,

896 F.2d 5, 8 (1st Cir. 1990). Second, his claim that he relied by

foregoing the pursuit of a Ph.D is dubious in light of his failure

to explain away his transfer attempt. Put simply, if the deans'

respective statements were not enough to convince Rodi to

relinquish his pursuit of a transfer, it seems equally unlikely

they would have been enough to persuade Rodi to shelve his pursuit

of a Ph.D. 
 Although Rodi contends that Dean Larkin and Dean Prentiss 6

promised him and the SNESL student body on "numerous occasions and

in numerous locations that they were certain of achieving ABA

accreditation," the only statements pled with particularity are

Dean Larkin's statement in September of 1997 and Dean Prentiss's

statement in July of 1998. See Rodi, 389 F.3d at 15 (noting that

the Federal Rules of Civil Procedure require allegations of fraud

be "stated with particularity" and that this requires "an averment

'of the who, what, where, and when of the allegedly false or

fraudulent representation'"). Rodi's reference to student

affidavits fails to cure this particularity deficiency. These

affidavits only reference Dean Larkin's statement in September of

1997 with the requisite detail and otherwise contain only general

statements that the deans made various verbal representations to

the student body.

 Dean Larkin also told the students that SNESL would reapply for 7

provisional approval at its next opportunity. Because the school

did so we need not analyze the statement further.

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But even if Rodi did rely on Dean Larkin's and Dean

Prentiss's statements, his reliance was unreasonable. This becomes

evident once we analyze what the deans said.6

Dean Larkin made two statements: first, that SNESL had

rectified the deficiencies in its application that the ABA had

identified and second, that the ABA would grant SNESL accreditation

before the students graduated. 

7

As for Larkin's first statement, it was unreasonable for

Rodi to believe that SNESL had remedied accreditation problems

significant enough to derail its application in just four weeks.

See Yorke v. Taylor, 124 N.E.2d 912, 916 (1955) (noting reliance

cannot be deemed reasonable when alleged misrepresentation is

"palpably false").
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But it was even more unjustified for Rodi to rely on

Larkin's second statement promising accreditation before Rodi

graduated. First, at all times Rodi was attending SNESL, the law

school catalogue contained a disclaimer which provided: "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." Although disclaimers,

under Massachusetts law, do not serve as automatic defenses to

allegations of fraud, see Sheehy v. Lipton Industries, Inc., 507

N.E.2d 781, 784 (Mass. App. Ct. 1987), they obviously may be

considered when assessing the reasonableness of a party's reliance.

The school, through its disclaimer, essentially urged Rodi and

other SNESL students to ignore statements such as the one made by

Dean Larkin.

Second, SNESL's accreditation fate was ultimately in the

hands of a third party, the ABA. This is a fact that Rodi and

every other SNESL student had squarely confronted when the ABA

denied the school's accreditation in August of 1997. Accordingly,

Rodi acted unreasonably in crediting Larkin's promise that an

entity over which Larkin had no control would do something. See

Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 781 N.E.2d

787, 795 (Mass. App. Ct. 2004) (holding plaintiff's reliance on

defendant's representation regarding a deal's finality unreasonable
 Similarly, a development following the September 1997 meeting 8

also should have convinced Rodi to ignore Larkin's promise. Rodi

claims that at the meeting Larkin promised the "student body" that

SNESL would be accredited before they graduated. Such a body would

have included third year law students slated to graduate in May or

June of 1998. Once that latter date came and went, accompanied by

Larkin's broken promise to the third year students, Rodi had yet

another reason to doubt Larkin's statement.

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because plaintiff should have been aware that a third-party had

final approval authority). 

Finally, prior to his statement in September of 1997

Larkin had been exposed as a flawed prognosticator. In a letter to

Rodi prior to the first denial of accreditation in August of 1997,

Larkin wrote that he was "highly confident" that SNESL would gain

accreditation in August. Larkin's history of making inaccurate

predictions rendered any reliance on his statements unreasonable.

As the proverb provides, "fool me once -- shame on you, fool me

twice -- shame on me."8

We now turn to Dean Prentiss's statement. In a letter

sent to Rodi in July of 1998 Prentiss stated, "[T]here should be no

cause for pessimism about the school's ultimate achievement of ABA

approval." Rodi acted unreasonably in relying on this statement

simply because its content, regardless of its accuracy, offered

little to hold onto. Aside from being, at best, a lukewarm

endorsement of the school's likelihood of attaining accreditation,

the fact that the Dean was specifically discussing the school's

"ultimate accreditation" should have meant very little to Rodi.
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Unlike Larkin, who promised accreditation before Rodi graduated,

Prentiss did not go as far. This was the summer after Rodi's first

year of law school and his window of opportunity to graduate from

an accredited law school was rapidly closing. By putting faith in

a dean's weak prediction of ultimate accreditation, he acted not

only improvidently but unreasonably.

Rodi, nevertheless, argues that his reliance was

reasonable. First, he contends that it was reasonable for him to

rely on statements made by the deans because he trusted them.

Second, he argues that, at the least, the reasonableness of his

reliance is a question for the jury. His arguments are unavailing.

First, even if Rodi trusted his deans, both the content and context

of their statements -- detailed above -- made his reliance

unreasonable. See Collins v. Huculak, 783 N.E.2d 834, 840 (Mass.

App. Ct. 2003) (holding reliance by sons on father's

representations unreasonable because of circumstances surrounding

representations, despite the fact that sons claimed they trusted

their father). Second, it is settled law that the reasonableness

of a party's reliance is not necessarily a jury question. See

Saxon Theatre Corp., 200 N.E.2d at 244-45.

In sum, at trial Rodi would be charged with persuading a

jury that, among other things, he relied on the word of his deans

and that his reliance was reasonable. Given the grave deficiencies

present in both the reliance and reasonable reliance elements of
 Although SNESL claims that Rodi did not comply with the thirty- 9

day demand letter requirement, the district court nonetheless

reached the substance of the claim. We follow its lead.

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his claim, we are convinced that no reasonable jury could be so

persuaded. See Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st

Cir. 2007) (noting that where the "nonmovant-plaintiff has the

burden of proof, the evidence adduced on each of the elements of

his asserted cause of action must be significantly probative in

order to forestall summary judgment") (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986)). Accordingly, the

district court correctly entered summary judgment in favor of

SNESL.

B. Chapter 93A

Rodi also claims that SNESL's actions violated a consumer

protection statute, Mass. Gen. Laws ch. 93A, §§ 2, 9. Chapter 93A 9

makes unlawful "unfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or

commerce." Mass. Gen. Laws ch. 93A, § 2(a). "Conduct is unfair or

deceptive if it is 'within at least the penumbra of some commonlaw, statutory, or other established concept of unfairness' or

'immoral, unethical, oppressive or unscrupulous.'" Cummings v. HPG

Int'l Inc., 244 F.3d 16, 25 (1st Cir. 2001); see also Travis v.

McDonald, 490 N.E.2d 1169, 1171 (1986). 

In order for Rodi to recover under Chapter 93A based on

his claim of fraudulent misrepresentation he must prove reasonable
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reliance. See Trifiro v. N.Y. Life Ins. Co., 845 F.2d 30, 33 n.1

(1st Cir. 1988); Mass. Laborers' Health & Welfare Fund, 62 F.

Supp. 2d at 243 (holding plaintiff could not recover under Chapter

93A for claim based on fraud where plaintiff failed to prove

reliance on false statements was reasonable). As discussed above,

that is not possible here. We therefore conclude the district

court correctly entered summary judgment for SNESL on this count.

C. Recusal and Motion for Reassignment

Finally, Rodi argues that the district judge should not

have presided over his case for two reasons. First, he claims that

the district judge should have recused herself from his case

because she had spoken at an SNESL graduation, had received an

honorary degree from the school, and had spoken favorably of their

accreditation efforts. Second, he argues that, at the very least,

on remand the judge should have reassigned his case. As to this

point, he contends that a judge should only retain a matter if

doing so would result in a substantial savings of time. Because no

answer had been filed and no discovery had been conducted, he

argues that in his case that was not the situation.

Rodi did not file a motion for recusal with the district

court but rather a motion for reassignment. In that motion, he

claimed only that the court should reassign the case because

retaining the case would not result in a substantial savings of

time. Accordingly, Rodi's recusal argument is waived. See United
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States v. DiPina, 230 F.3d 477, 486 (1st. Cir. 2000); In re Abijoe

Realty Corp., 943 F.2d 121, 127 (1st Cir. 1991).

However, Rodi's claim that the district judge should have

granted his motion for reassignment under Local Rule 40.1(K)(2) is

properly before us. Under 40.1(K)(2), when this court remands a

case to the district court, the district judge must reassign the

case unless either (1) "the terms of the remand require that

further proceedings be conducted before the original judge" or (2)

the judge determines that retaining the case will result in a

substantial savings of time and the interest of justice does not

require that further proceedings be conducted before a different

judge. We review the district court's application of its local

rule for an abuse of discretion. Crowley v. L.L. Bean, Inc., 361

F.3d 22, 25 (1st Cir. 2004).

There was no abuse of discretion. The judge found that

retaining the case would result in a substantial savings of time

because the Court was familiar with the background and procedural

history of the case and had already conducted a status conference

with the parties. As such, she acted well within her discretion in

declining to reassign Rodi's case. See Conley v. United States,

323 F.3d 7, 15 (1st Cir. 2003) (noting circuit's practice of giving

deference to district court's reassignment policies).
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III. Conclusion

For the reasons stated above, we affirm the judgment of

the district court.

AFFIRMED.