USCA1 Opinion
December 2, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1181
CARLEY DISTRIBUTING CORPORATION,
Plaintiff, Appellant,
v.
FIRST NATIONAL BANK OF BOSTON, N.A.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Alice Net Carlo with whom Carlos E. Rosado was on brief for
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appellant.
Manuel Moreda-Toledo for appellee.
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COFFIN, Senior Circuit Judge. The issue before us is
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whether the district court, in refusing to reconsider its
decision to dismiss a second amended complaint for failure to
state any non-fraud cause of action, abused its discretion. Our
conclusion is that, even if the issue had been preserved, there
has been no abuse.
The factual essence of the complaint is that plaintiff was a
supplier and creditor of an electronics retailer, Novedades
Guerra (N.G.); N.G. and the bank agreed that N.G. would pay its
suppliers/creditors with post-dated checks, which the bank would
honor; N.G. issued eleven such checks to plaintiff but the bank,
by setting off deposits of N.G.'s sales proceeds against N.G.'s
outstanding debt to it, reduced the amount available to pay
N.G.'s creditors and discriminated against plaintiff by honoring
some post-dated checks payable to other creditors; the result was
that no checks payable to plaintiff were honored. The complaint
also alleged that the bank made false representations to
creditors of N.G., allegations no longer relevant to this appeal.
The district court, in dismissing the second amended
complaint -- which, it observed, represented plaintiff's third
opportunity to submit an acceptable pleading -- referred to a
listing of the supposed non-fraud causes of action: breach of
contract, fraud and/or negligence, breach of fiduciary duties,
misrepresentation, unsafe and unsound banking practices, and
tortious interference with contractual relationships. It held
that not only did plaintiff fail to set forth each claim as
required by Fed. R. Civ. P. 10(b), it also failed to allege facts
("as opposed to unverifiable conclusions") supporting such claim
or to relate facts to a legal theory. Therefore, the court held,
plaintiff failed to state a claim under Fed. R. Civ. P. 12(b)(6).
In moving to reconsider this dismissal, plaintiff sought
reconsideration only "on the grounds that the pleadings are
sufficient to meet the specificity requirements of Rule 9(b)."
This reference, of course, was to the allegations of fraud. Only
in the last two pages of the twenty-two page brief supporting the
motion was there mention of non-fraud claims. Even here there
was only the most conclusory assertion that such claims "require
only general pleading" -- with no effort to demonstrate how any
such claim could be considered adequate. At least, the issue was
discussed "in only a most perfunctory manner . . . [and is]
deemed waived on appeal." Rodriguez-Pinto v. Tirado-Delgado, 982
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F.2d 34, 41 (1st Cir. 1993).
To compound its difficulties, while plaintiff on appeal
identifies its claims as including breach of contract, breach of
fiduciary duties, or tortious interference with contractual
relations, it proffers arguments only with regard to its claim of
"negligent or tortious conduct." It cites three subordinate
theories. The first is the bank's failure "to honor the
agreement with [N.G.] that the post-dated checks . . . would be
paid when due." This has the aroma of an alleged breach of
contract, but that theory is not argued on appeal. Nor do we
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perceive any ground for inferring a duty of care owed by the bank
to creditors of N.G.
The remaining allegations are that causes of action in tort
arise from the "intentional or unintentional . . . discriminatory
pattern" of honoring some post-dated checks but not others, and
the bank's setting off N.G.'s deposits of proceeds from sales
against N.G.'s debt to the bank rather than paying N.G.'s
suppliers. But the arguments were not made in plaintiff's motion
for reconsideration below. We can hardly fault the district
court for any abuse of discretion in overlooking claims that were
never advanced. Even were we to entertain the arguments,
plaintiff has not pointed out any legal basis for deeming these
alleged actions improper or a breach of any duty.
Affirmed.
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