Frederick H. Movitz v. Home Depot U.s.a., Inc.

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1572
FREDERICK H. MOVITZ,
Plaintiff, Appellant,
v.
HOME DEPOT U.S.A., INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Campbell, Senior Circuit Judge,
Torruella and Lipez, Circuit Judges.
Frederick H. Movitz on brief pro se.
Robert P. Joy, Danielle L. Meagher and Morgan, Brown & Joy,
LLP on brief for appellee.
December 5, 2003

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1 We do not discuss Home Depot's separate contention that
Movitz's appeal fails because of his brief's flagrant failure to
comply with the procedural requirements of the Federal Rules of
Appellate Procedure. A pro se party is not insulated from
complying with those rules. Ahmed v. Rosenblatt, 118 F.3d 886, 890
(1st Cir. 1997). Because Movitz's appeal lacks substantive merit,
we elect to proceed on that basis.
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Per Curiam. Pro se plaintiff-appellant Frederick H. Movitz
("Movitz") appeals from a district court order denying his request
to amend his complaint to add a conspiracy claim to his wrongful
termination action against his former employer, defendant-appellee
Home Depot U.S.A., Inc. ("Home Depot"). We review the denial of
leave to amend a complaint for an abuse of discretion, deferring to
the district court if any adequate reason for the denial is
apparent from the record. Resolution Trust Corp. v. Gold, 30 F.3d
251, 253 (1st Cir. 1994). We have reviewed the parties'
submissions and the record on appeal. We affirm the district
court's order because Movitz's requested amendment would have been
futile. We briefly explain.1
Movitz argues that he should have been permitted to add a
"count of conspiracy to commit fraud for writing false statements."
Under New Hampshire law, a civil conspiracy consists of: (1) two or
more persons; (2) an unlawful object to be accomplished; (3) an
agreement on the object or course of action; (4) one or more
unlawful overt acts; and (5) damages proximately resulting from the
acts. University Sys. of N.H. v. United States Gypsum Co., 756 F.
Supp. 640, 652 (D.N.H. 1991), citing Jay Edwards, Inc. v. Baker,

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130 N.H. 41, 47, 534 A.2d 706, 709 (1987). New Hampshire, however,
does not recognize a civil action based on conspiracy alone. Id.
Rather, for a civil conspiracy to exist, there must be an
underlying tort which the alleged conspirators agreed to commit.
Id. Thus, if the underlying tort claim fails, the action for civil
conspiracy also fails. See id.
Movitz asserts that the object of the alleged conspiracy was
to commit the tort of fraud. In order to prove fraud, a plaintiff
must show that: (1) the defendant misrepresented a material fact to
the plaintiff, knowing it to be false; (2) the defendant intended
that the plaintiff act on it; and (3) the plaintiff, without
knowledge of its falsity, detrimentally relied on the
representation. Alexander v. Fujitsu Bus. Communication Sys.,
Inc., 818 F. Supp. 462, 467 (D.N.H. 1993), citing Proctor v. Bank
of N.H., 123 N.H. 395, 399, 464 A.2d 263, 265 (1983).
Movitz's claim is based on an allegedly false statement
submitted to Home Depot by Troy Patterson ("Patterson"), a former
co-worker. Movitz alleges that Patterson admitted that his
statement to Home Depot was false, that he had been asked by an
assistant store manager, Chris Croce ("Croce"), to make the
statement, and that Scott Neal, the assistant store manager who
terminated Movitz, was "aware of the false statement." Movitz
asserts that Home Depot "store managers have had Mr. Patterson
write false statements and offered him higher positions in the

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company for doing so." Movitz argues that, "[i]f Mr. Patterson did
not come forward the statements would have been against the
plaintiff in his personnel file at Home Depot."
Movitz's allegations fail to establish the elements of fraud
against the defendant, Home Depot. Movitz does not allege that
anyone at Home Depot misrepresented any facts to him. Rather, he
asserts that Patterson, at the instance of Croce, the assistant
store manager, misrepresented facts to Home Depot. Also, Movitz
does not allege that any of the purported misrepresentations were
made with the intent that he rely on them, or that he actually
relied on them. Indeed, Movitz admits that he was not even aware
of Patterson's "false statement" until discovery in this case.
Further, Movitz does not allege that he suffered any actual damages
as a result of the alleged conspiracy to make these purported
misrepresentations, or from the misrepresentations themselves.
Although Movitz asserts that Patterson's November 2, 2001 statement
would have been used against him in his personnel file at Home
Depot, Movitz alleged that he was terminated on November 2, 2001,
and at no point contends that Home Depot waited until after it
reviewed Patterson's statement to make the decision to terminate
him. Further, at no point does Movitz contend that Home Depot
relied on Patterson's statement, or any other statement, in making
any decision regarding his employment. Thus, to the extent Movitz
alleges fraud as having been the object of the conspiracy, he has

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failed to state facts constituting the tort of fraud, and he has
also failed to indicate that any damages resulted either from the
purported conspiracy or the alleged fraud. Because his claim of
fraud fails, his claim of conspiracy to commit fraud also fails.
See University Sys. of N.H., 756 F. Supp. at 652.
The judgment of the district court is summarily affirmed. See
1st Cir. Loc. R. 27(c).

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