Carley v. FNBB ( 1993 )

USCA1 Opinion

          December 2, 1993


                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 93-1181

                           CARLEY DISTRIBUTING CORPORATION,

                                Plaintiff, Appellant,

                                          v.

                         FIRST NATIONAL BANK OF BOSTON, N.A.,

                                 Defendant, Appellee.


                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        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
            ________________             _________________
        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
                                     _______________    ______________

          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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