United States Court of Appeals 

For the First Circuit 

No. 16-1238 

ELLEN MULDER, 

Plaintiff, Appellant, 

v. 

KOHL'S DEPARTMENT STORES, INC., 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. F. Dennis Saylor IV, U.S. District Judge] 

Before 

Torruella, Lynch, and Lipez, Circuit Judges. 

S. James Boumil, with whom Boumil Law Offices, Konstantine W. 

Kyros, and Law Offices of Konstantine W. Kyros, were on brief, for 

appellant. 

Lauri A. Mazzuchetti, with whom Michael C. Lynch, James B. 

Saylor, Kelly Drye & Warren LLP, and William T. Harrington, were 

on brief, for appellee. 

July 26, 2017 
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LIPEZ, Circuit Judge. This appeal involves a putative 

class action lawsuit arising out of allegedly deceptive labeling 

and marketing of products by Kohl's Department Stores, Inc. 

Appellant Ellen Mulder purchased several items from a Kohl's store 

in Hingham, Massachusetts. The price tags on these items listed 

both purchase prices and significantly higher "comparison prices." 

Mulder alleges that these comparison prices are entirely 

fictional, and were selected by Kohl's to mislead unsuspecting 

consumers about the quality of its products. Feeling cheated by 

Kohl's allegedly deceitful pricing scheme, Mulder filed suit 

alleging that Kohl's had, in violation of Massachusetts statutory 

and common law, improperly obtained money from her and other 

Massachusetts consumers. She requested that a court order Kohl's 

to restore this money and enjoin Kohl's from continuing to violate 

Massachusetts law. The district court granted Kohl's motion to 

dismiss all of Mulder's claims. We affirm. 

 We faced identical claims against a different retailer 

in a related case, Shaulis v. Nordstrom, No. 15-2354, slip op. at 

5-32 (1st Cir. July 26, 2017), also decided today. The reasoning 

of that opinion applies fully here. We provide the following 

background and analysis only to address Mulder's contentions 

regarding the district court's denial of her motion for leave to 

amend and to address a new "travel expenses" theory of injury 

proposed in an accompanying proposed second amended complaint. 
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I. Background 

 The facts underlying this case are taken from the amended 

complaint and are presumed true for the purposes of this appeal. 

They are fully set forth in the opinion of the district court. 

See Mulder v. Kohl's Dept. Stores, Inc., 15-11377-FDS, 2016 WL 

393215, at *1-3 (D. Mass. Feb. 1, 2016). 

 Defendant Kohl's Department Stores, Inc. is a Wisconsinbased corporation that operates department stores throughout the 

United States, including more than twenty stores in Massachusetts. 

Mulder purchased two items at one of these stores in 2014. The 

first item listed a "manufacturer's suggested retail price" of 

$55; the second displayed a "comparison price" of $26. The items 

were listed as being on sale for $29.99 and $17.99, respectively. 

 Mulder claims that these price tags were deceptive. 

According to Mulder, Kohl's "misrepresented the existence, nature, 

and amount of price discounts on [its] products" by falsely 

"purporting to offer specific dollar discounts from its own former 

retail prices . . . or manufacturer's suggested retail prices" 

when, in reality, the listed sale prices were "fabricated [and] 

inflated." In short, Mulder claims that the comparison prices 

listed on the price tags were "fictional amounts intentionally 

selected so that Kohl's could advertise phantom markdowns" and 

persuade customers to make purchases they otherwise would not make. 
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 On November 20, 2014, Mulder filed suit in Massachusetts 

Superior Court. She filed an amended complaint on February 19, 

2015. The amended complaint alleged claims for fraud, breach of 

contract, unjust enrichment, violations of the Code of 

Massachusetts Regulations and the Federal Trade Commission Act,1 

and violations of Mass. Gen. Laws ch. 93A ("Chapter 93A"). 

 After Kohl's removed the case to federal court, it 

successfully moved to dismiss the action for failure to state a 

claim. The district court held that Mulder had failed to 

adequately plead a legally cognizable injury under Chapter 93A, 

and further denied her requests to certify several Chapter 93A 

questions to the Massachusetts Supreme Judicial Court ("SJC") and 

for leave to file a second amended complaint. The court also 

dismissed all of Mulder's common law claims. 

 On appeal, Mulder challenges dismissal of her Chapter 

93A claim and her common law claims for fraud, breach of contract, 

and unjust enrichment. Our review is de novo. Carter's of New 

Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 291 (1st Cir. 2015). 

As a federal court sitting in diversity, we apply the substantive 

law of Massachusetts, as articulated by the SJC. Sanders v. 

Phoenix Ins. Co., 843 F.3d 37, 47 (1st Cir. 2016). 

 1 The district court dismissed Mulder's claim for violations 

of the Code of Massachusetts Regulations and the Federal Trade 

Commission Act on the ground that neither provides for a private 

cause of action. Mulder does not appeal this decision. 
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II. Discussion 

 In dismissing all of Mulder's claims, the district court 

noted that this case involved allegations "substantially 

identical" to those made against another retailer in Shaulis v. 

Nordstrom Inc., 120 F. Supp. 3d 40 (D. Mass. 2015), in which the 

plaintiff was also represented by Mulder's counsel.2 Mulder, 2016 

WL 393215, at *9 (D. Mass. Feb. 1, 2016). Plaintiffs appealed in 

both cases, and their appeals were joined for oral argument before 

this court. Discerning no relevant factual or legal distinctions 

between these two cases, and applying our opinion in Shaulis v. 

Nordstrom, we affirm the district court's dismissal of Mulder's 

Chapter 93A claim for damages and injunctive relief and her common 

law claims for fraud, breach of contract, and unjust enrichment 

for the reasons stated therein.3 See Shaulis, slip op. at 5-32. 

 The only remaining issue is Mulder's challenge to the 

district court's denial of her motion for leave to file a second 

amended complaint. We review a district court's denial of a motion 

to amend for abuse of discretion. Nikitine v. Wilmington Trust 

 2 On appeal, Kohl's emphasizes the similarity of this case 

with Shaulis by noting that portions of Mulder's complaint appear 

to have been copied directly from the complaint in that case. 

3 Mulder asks us to certify several questions concerning 

Chapter 93A to the SJC, which we may do if the questions are 

determinative of the pending cause of action and there is no 

controlling precedent. See Mass. S.J.C. R. 1:03; Easthampton Sav. 

Bank v. City of Springfield, 736 F.3d 46, 50 (1st Cir. 2013). We 

decline to do so for the reasons stated in Shaulis. 
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Co., 715 F.3d 388, 389 (1st Cir. 2013). In doing so, we "defer to 

the district court's hands-on judgment so long as the record 

evinces an adequate reason for the denial." Id. (quoting Aponte–

Torres v. University of P.R., 445 F.3d 50, 58 (1st Cir. 2006)). 

Although Rule 15 proposes that leave to amend be "freely give[n]" 

in instances in which "justice so requires," Fed R. Civ. P. 

15(a)(2), this "does not mean . . . that a trial court must 

mindlessly grant every request for leave to amend." Aponte–Torres, 

445 F.3d at 58. Rather, "a district court may deny leave to amend 

when the request is characterized by 'undue delay, bad faith, 

futility, [or] the absence of due diligence on the movant's part.'" 

Nikitine, 715 F.3d at 390 (quoting Palmer v. Champion Mortg., 465 

F.3d 24, 30 (1st Cir. 2006)); see also Foman v. Davis, 371 U.S. 

178, 182 (1962). In sum, a request to amend requires the district 

court to "examine the totality of the circumstances and to exercise 

its informed discretion in constructing a balance of pertinent 

considerations." Palmer, 465 F.3d at 30-31. 

 Mulder sought leave to amend to add new allegations that 

she was "induced" to travel to a Kohl's store by false advertising 

and that she suffered a resulting economic injury in the form of 

travel expenses -- primarily, the cost of gasoline and depreciation 

of her vehicle -- incurred by driving ten miles from her home to 

a Kohl's store in Hingham, Massachusetts. The district court 

denied Mulder's motion to amend her complaint both because of undue 
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delay and because her proposed amendments to the complaint would 

have been futile. 

 We find no fault with the district court's denial of 

Mulder's motion for leave to amend on either ground. With respect 

to delay, as the court noted, Mulder did not file for leave to 

amend after Kohl's filed its motion to dismiss, and instead opposed 

the motion, filed a sur-reply, opposed the motion again at oral 

argument, and then filed a third memorandum in opposition to Kohl's 

motion. Moreover, Mulder admitted her motion was filed, at least 

in part, to rectify the deficiencies the district court identified 

with the theories of injury presented in Shaulis v. Nordstrom, 

which, as we noted, involved substantially identical allegations 

made by a plaintiff represented by Mulder's counsel. Thus, "[t]his 

is not a case of new allegations coming to light following 

discovery, or of previously unearthed evidence surfacing." 

Villanueva v. United States, 662 F.3d 124, 127 (1st Cir. 2011). 

Rather, the district court reasonably could have concluded that 

Mulder was scrambling to devise new theories of liability based on 

the same facts pled in her original complaint -- "theories that 

could and should have been put forward in a more timeous fashion." 

Nikitine, 715 F.3d at 391. Even on appeal, Mulder does not explain 

why her "travel expense" theory of injury was not advanced earlier. 

We therefore conclude that the district court acted within its 

expansive discretion in denying leave to amend. See id.; Calderón–
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Serra v. Wilmington Trust Co., 715 F.3d 14, 20 (1st Cir. 2013) 

("Appreciable delay alone, in the absence of good reason for it, 

is enough to justify denying a motion for leave to amend."). 

 The district court likewise acted within its discretion 

by denying Mulder's motion for leave to amend as futile.4 As the 

district court noted here, and as we similarly noted in Shaulis, 

Mulder's "travel expenses" theory of injury suffers from a 

causation problem, as she "does not explain how a deceptive price 

tag could have caused her to travel to [Kohl's] in the first 

place." Shaulis, slip op. at 25. 

 Mulder's belated attempt to resolve this causation 

problem -- by alleging that she was "deceived by Kohl's advertising 

in general," and that "but for the reputation that Kohl's developed 

as a result of its false advertising of 'amazing prices,'" she 

would not have traveled to Kohl's in the first place -- runs afoul 

of the particularity requirements of Federal Rule of Civil 

Procedure 9(b). Rule 9(b)'s requirements apply to both general 

claims of fraud and also to "associated claims," such as Mulder's, 

 4 Although we generally review a district court's denial of a 

motion to amend for abuse of discretion, "[w]ithin that standard, 

pure questions of law are reviewed de novo." Platten v. HG Bermuda 

Exempted Ltd., 437 F.3d 118, 132 (1st Cir. 2006). Here, because 

the district court also dismissed Mulder's motion as futile because 

the proposed second amended complaint still failed to state a claim 

"sufficient to survive a motion to dismiss, our review . . . is, 

for practical purposes, identical to review of a Rule 12(b)(6) 

dismissal based on the allegations in the amended complaint." Id. 
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"where the core allegations effectively charge fraud." North Am. 

Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 

15 (1st Cir. 2009); see also, Martin v. Mead Johnson Nutrition 

Co., No. 09-cv-11609-NMG, 2010 WL 3928707, at *3 (D. Mass. Sept. 

30, 2010) ("A claim under Chapter 93A that involves fraud is 

subject to the heightened pleading requirement."). Here, Mulder's 

claim that she was "induced" to travel to Kohl's by its 

"advertising in general" and its "reputation" of "amazing prices" 

is too vague to satisfy Rule 9(b), which requires plaintiffs to 

specifically plead "the time, place, and content of an alleged 

false representation." See United States ex rel. Heineman-Guta v. 

Guidant Corp., 718 F.3d 28, 34 (1st Cir. 2013) (quoting United 

States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 731 (1st Cir. 

2007)). Hence, we agree with the district court that Mulder's 

claim falls well short of meeting Rule 9(b)'s requirements for 

allegations sounding in fraud.5 

Mulder's "travel expenses" theory of injury is also 

fundamentally flawed in another way. In Shaulis, we rejected a 

plaintiff's "induced purchase" theory of injury -- a claim that 

she was "induced" to make a purchase by the false sense of value 

 5 Furthermore, we also agree with the district court that 

advertising of "amazing prices" in most circumstances is nonactionable puffery because, standing alone, such advertisements do 

not make an explicit promise or guarantee. See Shaw v. Digital 

Equip. Corp., 82 F.3d 1194, 1218 (1st Cir. 1996). 
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created by a retailer's allegedly deceptive "Compare At" price 

tags -- because it fell short of "alleging the 'identifiable' 

injury, distinct from the claimed deceptive conduct itself that 

the SJC requires for individual relief under Chapter 93A." 

Shaulis, slip op. at 17-18. In doing so, we emphasized that the 

SJC has moved away from recognizing "per se" or "deception-asinjury" theories of injury under Chapter 93A, and that, "absent 

allegations of real loss grounded in some objective measure, [an] 

'induced purchase' theory of injury is simply the 'per se' theory 

of injury in new clothing." Id. at 24. 

Mulder's "induced travel" theory of injury fares no 

better than the "induced purchase" theory. Mulder identifies no 

authority, and we are aware of none, ratifying this theory of 

injury under Chapter 93A. This is unsurprising. Such a theory, 

if recognized, would render meaningless the SJC's clear rule 

against "per se" or "deception-as-injury" claims. See Tyler v. 

Michaels Stores, Inc., 984 N.E.2d 737, 745-46 (Mass. 2013) (holding 

that a Chapter 93A plaintiff must have suffered a "separate, 

identifiable harm arising from the [regulatory] violation" that is 

distinct "from the claimed unfair or deceptive conduct itself"); 

Bellermann v. Fitchburg Gas and Elec. Light Co., 54 N.E.3d 1106, 

1111 (Mass. 2016) (reaffirming Tyler); see also Shaulis, slip op. 

at 7-25. Indeed, the only court to have addressed a "travel 

expenses" theory of injury under a state's consumer protection 
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statutes rejected it for just this reason. See Braynina v. TJX 

Cos., 15 CIV. 5897 (KPF), 2016 WL 5374134, at *11 (S.D.N.Y. Sept. 

26, 2016). As the court in Braynina explained, a 

customer whose claim is foreclosed by [the bar against 

"per se" theories of injury"] could easily circumvent 

that [rule] by latching onto the travel or other (often 

inevitable) collateral expenses that led to their 

purchase. Smartphone users who make deceptively induced 

purchases on a preferred retailer's website could 

likewise claim data usage costs involved in the 

transaction. Indeed, actual purchases would no longer 

be necessary under Plaintiffs' proposed theory . . . 

because the travel expense injury would be completed, 

not upon a plaintiff's purchase of a good, but upon his 

or her mere visit to a store or website. The Court 

declines to adopt so broad a theory. 

Id. (emphasis added). In light of the SJC's current Chapter 93A 

injury jurisprudence, we similarly decline to recognize a "travel 

expenses" theory of injury. If the SJC wishes to carve out 

exceptions to its holdings in Tyler and Bellermann to allow for 

such claims, "it is for the SJC to identify and define them." Rule 

v. Ft. Dodge Animal Health, Inc., 607 F.3d 250, 255 (1st Cir. 

2010). 

 Affirmed.