Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit


No. 07-1630

                            DARLENE A. TRACY,

                         Plaintiff, Appellant,

                                      v.

                        OPRAH WINFREY, ET AL.,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel,       U.S. District Judge]


                                   Before

                         Boudin, Chief Judge,
                Torruella and Lynch, Circuit Judges.


     Craig J. Tiedemann and Tiedemann Law Firm, on brief for
appellant.
     Robert A. Bertsche, Kimberley Keyes and Prince, Lobel, Glovsky
& Tye, and Charles L. Babcock, Nancy W. Hamilton and Jackson Walker
L.L.P., on brief for appellees.


                               June 11, 2008
           Per Curiam.      Darlene Tracy has appealed the district

court's dismissal of her complaint for failure to state a claim.

See Fed. R. Civ. P. 12(b)(6).       We review such a dismissal de novo.

Gagliardi v. Sullivan, 

, 305 (1st Cir. 2008).            Upon de

novo review, we affirm.

           By order dated October 11, 2007, we rejected Tracy's

contentions that this court lacks jurisdiction because no final

judgment entered.     Tracy has reiterated those contentions in her

appellate brief.    We rest on our order of October 11, 2007 and need

not discuss those contentions further.

           We    reject   Tracy's   claim   that    the   district   court's

dismissal was, in substance, a dismissal for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).           It clearly was

not.   Nor are we persuaded that the district court was misled by

any alleged mischaracterization of the jurisdictional basis for the

complaint appearing on the civil cover sheet.

           The district court dismissed Tracy's complaint because

the "complaint fails to allege facts sufficient to support a claim

of   copyright   infringement   or    any   other   claim   against   these

defendants."     This is a dismissal for failure to state a claim,

pursuant to Rule 12(b)(6) and, contrary to Tracy's allegation, it

adequately explains the basis for the court's ruling.

           "Dismissal for failure to state a claim is appropriate if

the complaint fails to set forth factual allegations, either direct


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or inferential, respecting each material element necessary to

sustain   recovery    under   some   actionable   legal   theory."         

marks and citations omitted). Upon our de novo

review, neither copyright nor misappropriation of trade secret are

apt legal theories for the facts as pled by Tracy, which, even

construed in her favor, reveal that Tracy voluntarily and without

reservation submitted her material to the defendants.              Nor would

the defendants' refusal to return her material constitute a claim

of fraud.

            Tracy's contention that the district court failed to

permit her an opportunity to amend her complaint or to file

supplemental or new pleadings is misplaced.        The court's dismissal

was not sua sponte.      Cf. Gonzalez-Gonzalez v. United States, 

, 36-37 (1st Cir. 2001).        Based on the defendants' motions

to dismiss to which she responded, Tracy was on notice of the

defects in her complaint.      Nothing in Tracy's opposition sufficed

to overcome these defects.     Her motion to amend, filed after entry

of judgment, which simply reiterated these inadequate arguments was

similarly deficient.     There was no abuse of discretion in denying

the   motion   to   amend.    See    Trans-Spec   Truck   Serv.,    Inc.   v.

Caterpillar Inc., No. 07-1476, slip op. at 21 (1st Cir. Apr. 30,

2008) (reciting the standard of review).          Similarly misplaced is

Tracy's suggestion that this court can provide relief pursuant to




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Fed. R. Civ. P. 60(b).   Any such motion is properly filed in the

first instance in the district court.

          Finally, assuming without deciding that a request for

enforcement of a statutory attorney's lien, pursuant to Mass. Gen.

L. c.221, § 50, is properly initiated by motion filed in this

court, we deny the motion filed by Tracy's counsel, as the statute

requires that a judgment have entered in the client's favor and no

such judgment has entered in this case.

          The district court judgment of dismissal entered on March

14, 2007 is summarily affirmed.    Loc. R. 27.0(c).




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