Cook & Co. Insurance Services, Inc. v. Volunteer Firemen's Insurance Services, Inc. , 657 F. App'x 1 ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2213
COOK & COMPANY INSURANCE SERVICES, INC.,
Plaintiff, Appellant,
v.
VOLUNTEER FIREMEN'S INSURANCE SERVICES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Thompson, Selya and Kayatta,
Circuit Judges.
Bart W. Heemskerk for appellant.
James Gray Wagner, with whom Russell F. Conn, Katherine A.
Kelter, and Conn Kavanaugh Rosenthal Peisch & Ford, LLP, were on
brief, for appellee.
August 3, 2016
SELYA, Circuit Judge. This civil action is brought under
diversity jurisdiction. See 28 U.S.C. § 1332(a). Massachusetts
law furnishes the substantive rules of decision. See Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938); Summers v. Fin. Freedom
Acq. LLC, 807 F.3d 351, 354 (1st Cir. 2015).
The case is straightforward. Plaintiff-appellant Cook
& Company Insurance Services, Inc. (Cook), a commercial insurance
brokerage firm, sues an insurance company, defendant-appellee
Volunteer Firemen's Insurance Services, Inc. (VFIS), for tortious
interference with advantageous business relations, civil
conspiracy, and unfair trade practices. All of its causes of
action arise out of the activities of Gowrie, Barden & Brett, Inc.
(Gowrie), a competitor of Cook but not a party to this suit.
According to Cook's complaint, Gowrie's activities included hiring
away certain at-will Cook employees to staff a competing operation,
timing these hirings to optimize its gains and thus to inflict
maximum financial harm on Cook's business, and poaching Cook's
customers. Cook alleges, in the alternative, that Gowrie either
acted as VFIS' agent in undertaking these activities or was aided
and abetted by VFIS.
The district court, responding to a motion filed by VFIS
pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissed
Cook's complaint for failure to state a claim upon which relief
could be granted. See Cook & Co. Ins. Servs., Inc. v. Volunteer
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Firemen's Ins. Servs., Inc., No. 15-12342, 2015 WL 5458279, at *3
(D. Mass. Sept. 17, 2015). The court concluded that, on the facts
alleged in the complaint, Cook had not plausibly identified any
tortious or wrongful act attributable to VFIS. Nor had Cook
"allege[d] facts suggesting any improper motive that surpasses the
permissible bounds of rough-and-tumble business competition." Id.
at *2. Cook now appeals.
We need not tarry. We have made it luminously clear,
time and again, that there are cases in which we ought not to write
at length, for doing so would achieve no other purpose than to
hear our own words resonate. See, e.g., deBenedictis v. Brady-
Zell (In re Brady-Zell), 756 F.3d 69, 71 (1st Cir. 2014); Vargas-
Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 2 (1st Cir. 2004);
Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 220
(1st Cir. 1996); Holders Capital Corp. v. Cal. Union Ins. Co. (In
re San Juan Dupont Plaza Hotel Fire Litig.), 989 F.2d 36, 38 (1st
Cir. 1993). This is such a case.
Here, the district court has accurately taken the
measure of Cook's complaint and lucidly articulated its reasoning
in support of dismissal. We do not think that any useful purpose
would be served were we to repastinate ground already well-plowed.
Accordingly, we affirm the judgment below for substantially the
reasons limned in the district court's cogent opinion.
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We make only one further observation. The Supreme Court
has stated that, "[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to 'state
a claim to relief that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard
has become the "new normal" for federal pleading purposes. A.G.
v. Elsevier, Inc., 732 F.3d 77, 79 (1st Cir. 2013).
An inquiry into the plausibility of a complaint requires
a two-step pavane. See García-Catalán v. United States, 734 F.3d
100, 103 (1st Cir. 2013); Rodríguez-Reyes v. Molina-Rodríguez, 711
F.3d 49, 53 (1st Cir. 2013). First, we "separate the complaint's
factual allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be credited)."
Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012).
Second, we decide if the factual allegations are sufficient to
state a plausible claim against the defendant on some cognizable
theory. See Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir.
2011).
In this instance, Cook's complaint is long on conclusory
legal allegations, but it is conspicuously short of the type of
factual allegations that are needed to state a plausible claim.
From a factual standpoint, it paints a picture of Gowrie
maneuvering to gain advantage over Cook in the marketplace and the
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use of bare-knuckle tactics to achieve that goal. But competitive
infighting, though sometimes unattractive, is not per se unlawful;
and here, the complaint is bereft of factual allegations adequate
to show that either Gowrie or VFIS committed any tortious or
wrongful acts.
The closest that the complaint comes to meeting this
benchmark is Cook's allegation that one of its own managers, while
still employed by it, breached a duty of loyalty owed to Cook by
giving Gowrie information about Cook's future business plans. Yet
the complaint offers no facts suggesting that either Gowrie or
VFIS engaged in any tortious or otherwise wrongful acts in
connection with that alleged breach. Without more, we — like the
court below — are unable to say that Cook has satisfied the
plausibility standard. See S.E.C. v. Tambone, 597 F.3d 436, 442
(1st Cir. 2010) (en banc) (explaining that "[i]f the factual
allegations in the complaint are too meager, vague, or conclusory
to remove the possibility of relief from the realm of mere
conjecture, the complaint is open to dismissal").
We need go no further. The judgment below is summarily
Affirmed. See 1st Cir. R. 27.0(c).
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