Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 21-1371

ANITA SEIFER,

Plaintiff, Appellant,

v.

GOVERNMENT EMPLOYEES INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Lynch, Kayatta, and Gelpí, Circuit Judges.

Mark Ellis O'Brien on brief for appellant. Michael D. Schollard and Harding Gurley, LLP on brief for appellee.

May 13, 2022 GELPÍ, Circuit Judge. Plaintiff-Appellant Anita Seifer

(Seifer) brought suit against Defendant-Appellee Government

Employees Insurance Company (GEICO) in the District of

Massachusetts, alleging the breach of an implied-in-fact contract.

GEICO moved to dismiss the claim pursuant to Fed. R. Civ. P.

12(b)(6) for failure to state a claim upon which relief can be

granted. The district court granted the motion to dismiss. We

affirm, albeit on different grounds than the district court.1

I. Background

When reviewing a district court's grant of a motion to

dismiss, we glean the well-pleaded facts from the plaintiff's

complaint. See SEC v. Tambone,

(1st Cir. 2010).

Seifer underwent anterior cervical discectomy and fusion

surgery in March 2014. On April 22, 2015, while Seifer was still

recovering from surgery, a vehicle that was insured by GEICO struck

the car she was driving from behind. She estimates that the car

was driving approximately twenty miles per hour when it struck

her. Seifer went to the emergency room following the accident.

She subsequently began to experience new and severe neck pain and

her doctor found that she suffered whiplash after the accident.

1 Affirming on different grounds than those relied on by the district court is explicitly allowed by our precedent. See In re Montreal, Me. & Atl. Ry., Ltd.,

, 8 n.4 (1st Cir. 2018) ("When reviewing the grant of a motion to dismiss for failure to state a claim, we are not wed to the lower court's reasoning but may affirm on any ground supported by the record.").

- 2 - Months after the incident, by the summer of 2015,

Seifer's condition worsened. She continued to have pain in her

neck, it became difficult for her to move her legs and arms, and

her hands went numb. She was seen by a physical therapist, who

took a magnetic resonance imaging scan (MRI) and diagnosed her

with spinal cord compression. Based on the results of the MRI,

Seifer then required another surgery on her spinal cord, wherein

bone would be cut away to reduce pressure on the same. This

surgery took place on November 30, 2015, and Seifer remained in

the hospital for seven days in order to recover. Following this

second surgery, Seifer continued to suffer a myriad of medical

problems, which have hindered her ability to work as a registered

nurse.

Seifer alleges in her complaint that an implied-in-fact

contract arose between herself and GEICO when it offered

compensation for her injuries and underwent negotiations with her

attorney regarding the amount of compensation. She claims that

GEICO breached the implied covenant of good faith and fair dealing

by "repeatedly solicit[ing] identical work-related documentation"

and failing to evaluate her personal injury claim within the three-

year statute of limitations for tort claims. Seifer claims damages

in the amount of $1,000,000 as compensation for her pain and

suffering and her inability to work.

- 3 - At the district court, GEICO moved to dismiss the

complaint for failure to state a claim. Seifer responded to the

same and filed a motion to amend her first amended complaint. The

district court granted GEICO's motion to dismiss and denied

Seifer's motion to amend the complaint.2 This timely appeal

followed.

II. Discussion

A. Standard of Review

"We review the grant of a motion to dismiss de novo."

Squeri v. Mount Ida Coll.,

(1st Cir. 2020) (quoting

Starr Surplus Lines Ins. Co. v. Mountaire Farms Inc.,

(1st Cir. 2019)). In order to survive a motion to dismiss,

Seifer's complaint "need not plead 'detailed factual

allegations.'" Tambone,

(quoting Bell Atl. Corp.

v. Twombly,

(2007)). Nevertheless, it "must

contain sufficient factual matter . . . to state a claim to relief

that is plausible on its face." Saldivar v. Racine,

(1st Cir. 2016) (alteration in original) (internal quotation

marks omitted) (quoting Ashcroft v. Iqbal,

(2009)). The motion to dismiss may be granted "[i]f the factual

2 In her brief to this court, Seifer does not argue that the district court was incorrect to deny her motion to amend the complaint. Therefore, as a matter of well-settled law, said argument is waived. See United States v. Mayendía-Blanco,

(1st Cir. 2018).

- 4 - allegations in the complaint are too meager, vague, or conclusory

to remove the possibility of relief from the realm of mere

conjecture." Squeri,

(quoting Barchock v. CVS

Health Corp.,

(1st Cir. 2018)).

B. Analysis

As an initial matter, Seifer did not file suit against

the driver of the vehicle that struck her own within the three-year

statute of limitations for tort claims under Mass. Gen. Laws ch.

260, § 2A. The accident took place on April 22, 2015 and the

complaint was filed on November 30, 2018. Seifer thus has no

judgment against the tortfeasor, GEICO's insured.

Seifer alleges in her complaint that an implied-in-fact

contract arose between herself and GEICO for the compensation of

her injuries, and that GEICO then breached the implied covenant of

good faith and fair dealing by allowing the three-year statute of

limitations for tort claims to pass without evaluating her claim.

Under Massachusetts law, which applies to this diversity case, to

"determin[e] whether an enforceable contract has been created

'there must be agreement between the parties on the material terms

of that contract, and the parties must have a present intention to

be bound by that agreement.'" Doe v. Trs. of Bos. Coll.,

(1st Cir. 2018) (quoting Lambert v. Fleet Nat'l Bank,

(Mass. 2007)). In turn, thus, the elements that

Seifer must plead to support a breach of contract claim are as

- 5 - follows: that "there was an agreement between the parties; the

agreement was supported by consideration; the plaintiff was ready,

willing, and able to perform his or her part of the contract; the

defendant committed a breach of the contract; and the plaintiff

suffered harm as a result." Squeri,

(quoting Bulwer

v. Mount Auburn Hosp.,

(Mass. 2016)). When, as

in the instant case, there is no express agreement between the

parties, a court may find that an implied-in-fact contract has

arisen based on "the conduct and relations of the parties."

(quoting Sullivan v. O'Connor,

(Mass. App. Ct.

2012)). To survive a motion to dismiss on a breach of contract

claim, "[i]t is essential to state with 'substantial certainty'

the facts showing the existence of the contract and the legal

effect thereof." See

(quoting Tel. Answering Serv. of Bos.,

Inc. v. New Eng. Tel. & Tel. Co.,

(Mass.

1971)).

Here, at the motion to dismiss stage, Seifer has failed

to meet her burden of demonstrating that a contract existed between

herself and GEICO. In her complaint, Seifer states that an

"implied-in-fact contract arose between [her] and [GEICO] when

[GEICO] offered to compensate [Seifer] for her injuries and entered

into an ongoing exchange . . . to evaluate the dollar value of the

claim." This conclusory allegation fails to meet the pleading

standard for a motion to dismiss as it does not "state a claim to

- 6 - relief that is plausible on its face." See Saldivar,

. It does not set forth the essential elements needed to prove

the existence of a contract -- namely, a meeting of the minds

between the parties and the requisite consideration for said

agreement. See Squeri,

. Moreover, Seifer fails to

provide any of the terms of the agreement needed to establish its

existence and the corresponding responsibilities that each party

undertook. See

GEICO's letter to Seifer dated October 10, 2015, wherein

GEICO notified her that they would evaluate her claim and make a

settlement offer upon receipt of additional information, and its

subsequent letter on January 5, 2018, stating that no such

information had been received, further belies the conclusion that

there was any agreement between the parties or present intention

to be bound by said agreement.

III. Conclusion

We need go no further. The decision of the district

court is

AFFIRMED.

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