1There is no dispute that Dennco’s claims based on breach of

an alleged oral contract and breach of the implied covenant of

good faith and fair dealing are governed by Massachusetts law.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dennco, Inc.

v. Civil No. 04-cv-389-JM

MacNeill Engineering Co., Inc.

O R D E R

Defendant moves for judgment on the pleadings on Plaintiff’s

breach of oral contract and breach of the implied covenant of

good faith and fair dealing claims. Plaintiff objects.

Background

In an order dated April 5, 2005, the Court granted in part

and denied in part Defendant’s motion to dismiss the complaint

for failure to state a claim. The Court found that the facts

alleged in the complaint did not clearly support the conclusion

that the alleged oral agreement was unenforceable under the

statute of frauds in the Uniform Commercial Code as enacted in

Massachusetts.1 See Mass. Gen. Laws ch. 106, § 2-201(1). The

Court further found that dismissal of Plaintiff’s claim based on

Case 1:04-cv-00389-JM Document 36 Filed 12/29/05 Page 1 of 10
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breach of an oral agreement under § 2-201(1) would be

inappropriate since Plaintiff had not had any opportunity to seek

an admission that an oral agreement existed under the exception

to the written instrument requirement provided in § 2-201(3)(b). 

Therefore, the Court found that the statute of frauds should not

be applied at that time to dismiss Plaintiff’s claim based on

breach of an oral contract. The Court further found that

Defendant’s argument for dismissing the breach of implied

covenant of good faith and fair dealing claim, also based on the

statute of frauds, necessarily failed for the same reasons. 

Defendant now moves for judgment on the pleadings on

Dennco’s breach of oral contract and breach of the implied

covenant of good faith and fair dealing claims. Defendant states

in its motion papers that it moves for summary judgment on those

claims in the alternative. In support of its motion, Defendant

relies upon the affidavit of Richard J. Locke, MacNeill’s Chief

Financial Officer, and Plaintiff’s responses to Defendant’s first

set of requests for admissions. In support of its objection to

the motion, Plaintiff relies upon the affidavit of James

Dennesen, Dennco’s President.

Case 1:04-cv-00389-JM Document 36 Filed 12/29/05 Page 2 of 10
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Discussion

I. Conversion to a Motion for Summary Judgment

Fed. R. Civ. P. 12(c) provides that “[a]fter the pleadings

are closed but within such time as not to delay the trial, any

party may move for judgment on the pleadings.” Ordinarily,

whether such a motion is granted “will depend upon whether the

pleadings, taken as a whole, reveal any potential dispute about

one or more of the material facts.” Gulf Coast Bank & Trust Co.

v. Reder, 355 F.3d 35, 38 (1st Cir. 2004). Rule 12(c) further

provides, however, that:

If, on a motion for judgment on the pleadings, matters

outside the pleadings are presented to and not excluded

by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule

56, and all parties shall be given reasonable

opportunity to present all material made pertinent to

such a motion by Rule 56.

Fed. R. Civ. P. 12(c). In the context of a motion to dismiss for

failure to state a claim under Rule 12(b), which has the same

summary judgment conversion rule as Rule 12(c), the Supreme Court

has held that conversion to a motion for summary judgment is

required when the court considers matters outside of the

pleadings. See Carter v. Stanton, 405 U.S. 669, 671 (1972); see

also Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (finding

Case 1:04-cv-00389-JM Document 36 Filed 12/29/05 Page 3 of 10
2See DF Activities Corp. v. Brown, 851 F.2d 920, 922-924

(7th Cir. 1988); Perminas v. Novartis Seeds, Inc., No. 00 C 4581,

2000 WL 1780249 at *2 (N.D.Ill. Dec. 4, 2000).

4

that courts have made narrow exceptions to the rule that

documents outside the pleadings may not be considered on a motion

under Rule 12(b)(6) such as where the documents submitted are

official public records, the documents are central to the

plaintiff’s claim or the documents are sufficiently referred to

in the complaint). 

Here, MacNeill supports its motion with two matters outside

of the pleadings: (1) an affidavit from Richard J. Locke,

MacNeill’s Chief Financial Officer, denying that MacNeill made an

oral promise to Dennco; and (2) Dennco’s responses to MacNeill’s

first set of requests for admissions. Although there is some

authority for granting a motion to dismiss where the plaintiff

has not pled the existence of a writing that would satisfy the

statute of frauds and where the defendant has submitted a sworn

affidavit stating under oath that there was no contract,2 neither

the cases, nor MacNeill’s memorandum of law, explain why such

motions need not be treated as motions for summary judgment. 

Moreover, in the instant case, MacNeill relies upon both an

affidavit and Dennco’s responses to MacNeill’s requests for

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admissions to show that the statute of frauds applies. The

inclusion of discovery materials makes the argument for treating

MacNeill’s motion as a motion for summary judgment even stronger. 

Accordingly, the Court treats MacNeill’s motion as a motion for

summary judgment and considers it as provided in Fed. R. Civ. P.

56.

II. Consideration of Motion for Summary Judgment

A court may grant summary judgment on a claim “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56. Based on the present state of the record, the

Court must deny MacNeill’s motion for two reasons. First, the

Locke Affidavit is insufficient to support a finding that

MacNeill is entitled to summary judgment on Dennco’s breach of

oral contract and breach of the implied covenant of good faith

and fair dealing claims because the allegations in the affidavit

rely on hearsay. Therefore, the Locke Affidavit does not set

forth facts that would be admissible in evidence as required by

Fed. R. Civ. P. 56(e). See Schubert v. Nissan Motor Corp., 148

Case 1:04-cv-00389-JM Document 36 Filed 12/29/05 Page 5 of 10
6

F.3d 25, 29 (1st Cir. 1998) (finding that the district court

properly excluded affidavits from consideration because they did

not meet Rule 56(e)’s requirement of admissibility). Locke

states that he has discussed the allegations in Dennco’s

complaint “with knowledgeable individuals at MacNeill who were

responsible for our relationship with Dennco.” Locke Aff., ¶ 2. 

Locke then denies that MacNeill made an oral promise to Dennco as

alleged in the complaint. Id., ¶ 3. Locke’s assertion in the

first paragraph of his affidavit that he makes the statements of

fact in his affidavit based on his personal knowledge does not

solve the hearsay problem. MacNeill is not entitled to summary

judgment on Dennco’s breach of contract and breach of the implied

covenant of good faith and fair dealing claims based solely on

the denials in its answer to the complaint. See DF Activities

Corp. v. Brown, 851 F.2d 920, 922 (7th Cir. 1988) (“When there is

a bare motion to dismiss, or an answer, with no evidentiary

materials, the possibility remains a live one that, if asked

under oath whether a contract had been made, the defendant would

admit it had been.”).

Second, the record supports a finding that Dennco has not

had a sufficient opportunity to respond to a motion for summary

Case 1:04-cv-00389-JM Document 36 Filed 12/29/05 Page 6 of 10
3That statute provides in relevant part that:

 

Except as otherwise provided in this section a contract

for the sale of goods for the price of five hundred

dollars or more is not enforceable by way of action or

defense unless there is some writing sufficient to

indicate that a contract for sale has been made between

the parties and signed by the party against whom

enforcement is sought . . . . 

7

judgment. Dennco asserts in its objection that it requires

discovery to oppose MacNeill’s motion. Dennco supports its

assertion with an affidavit from James Dennesen, Dennco’s

President. The Dennesen Affidavit identifies James Latraverse

and Marty Greenwald as the MacNeill employees who made the

alleged representations that underlie Dennco’s oral contract

claim, and asserts on information and belief based on Dennco’s

and MacNeill’s ten-year business relationship, that MacNeill

likely has documents in its possession that confirm the alleged

oral contract. The Court finds that Dennco has made a sufficient

showing that discovery would aid its claim to warrant relief

under Fed. R. Civ. P. 56(f). See FDIC v. Kooyomjian, 220 F.3d

10, 15 (1st Cir. 2000); Patrick v. Mass. Port Auth., 141 F. Supp.

2d 180, 188 (D.N.H. 2001). 

Denying MacNeill’s motion at this time would not be

inconsistent with the purpose of the governing statute.3 The

Case 1:04-cv-00389-JM Document 36 Filed 12/29/05 Page 7 of 10
Mass. Gen. Laws. ch. 106, § 2-201(1).

8

purpose of the statute of frauds is “to suppress fraud, i.e.,

cooked up claims of agreement, sometimes fathered by wish,

sometimes imagined in the light of subsequent events, and

sometimes simply conjured up.” Pappas Indus. Parks, Inc. v.

Psarros, 511 N.E.2d 621, 622 (Mass. App. Ct. 1987). Mass. Gen.

Laws ch. 106, § 2-201(3)(b) provides an exception to the statute

of frauds, however, where “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.” In order to balance the protection afforded to

MacNeill by the statute of frauds against Dennco’s need for a

reasonable opportunity to show whether the admission exception of

§ 2-201(3)(b) might apply in this case, the Court shall deny

MacNeill’s motion subject to renewal after Dennco has had an

opportunity to depose James Latraverse and Marty Greenwald on the

issue of whether Dennco and MacNeill made an oral contract

consistent with the allegations in the complaint. See DF

Activities, 851 F.2d at 924-925 (Flaum, J., dissenting) (finding

that the statute of frauds and the admissions exception contained

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therein “can best be reconciled by allowing district courts to

exercise their discretion to determine when additional discovery

is likely to be fruitful and when it is being sought just to

improperly pursue a defendant who is clearly entitled to the

protection of the statute of frauds”); Ruca Hardware, Ltd. v.

Chien, No. 94 C 3635, 1995 WL 307172 at *5 (N.D. Ill. May 17,

1995) (finding that the plaintiffs should have an opportunity to

depose the defendants with knowledge on the issue of whether an

exclusive distributorship agreement existed to attempt to elicit

an admission); Bentley v. ASM Communs., Inc., No. 91 Civ. 0086

(MBM), 1992 WL 18802 (S.D.N.Y. 1992) (finding that after taking

limited discovery to determine whether defendant’s agents would

admit to the existence of an alleged oral contract that the

record contained three unequivocal denials and that the judicial

admission exception to the statute of frauds did not apply). 

Conclusion

For the reasons set forth above, the Court denies

Defendant’s motion for judgment on the pleadings (document no.

22). Defendant may renew its motion as a motion for summary

judgment after the Plaintiff has been permitted a reasonable

opportunity to take the depositions of James Latraverse and Marty

Case 1:04-cv-00389-JM Document 36 Filed 12/29/05 Page 9 of 10
10

Greenwald on the issue of whether the Plaintiff and the Defendant

entered into an oral contract consistent with the allegations in

the complaint.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 29, 2005 

cc: Daniel E. Will, Esq.

Frederick A. Tecce, Esq.

Alexander J. Walker, Esq.

Danielle Leah Pacik, Esq.

David T. Huang, Esq.

Thane D. Scott, Esq.

William B. Pribis, Esq.

Case 1:04-cv-00389-JM Document 36 Filed 12/29/05 Page 10 of 10