          United States Court of Appeals
                     For the First Circuit

No. 12-1155

                MARK MENARD and CAROL E. MENARD,

                     Plaintiffs, Appellants,

                               v.

                    CSX TRANSPORTATION, INC.,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Michael A. Ponsor,   U.S. District Judge]


                             Before

                       Lynch, Chief Judge,

              Boudin and Thompson, Circuit Judges.


     Thomas J. O'Connor, Jr. with whom S. Thomas Martinelli was on
brief for appellants.
     Andrew E. Tauber with whom Brian J. Wong and Mayer Brown LLP
were on brief for appellee.



                        October 24, 2012
           BOUDIN, Circuit Judge.            Mark Menard and Carol Menard

appeal from a district court order dismissing their complaint for

failure to state a claim and denying their motion to amend the

complaint.       Mark    Menard,   whom     we   refer    to   as     "Menard,"   was

permanently injured while crossing through a railroad freight yard;

the   district    court    ruled     that    his    complaint         against     CSX

Transportation, Inc. ("CSX") failed to assert sufficient facts to

overcome his status as a "trespasser" and thereby state a claim

under Massachusetts law.

                Menard's version of the accident, which we accept as

true for purposes of the motion to dismiss, is to be taken from his

complaint and, in this regard, we include any elaboration set forth

in his proposed amendment.          Bos. & Me. Corp. v. Town of Hampton,

987 F.2d 855, 868 (1st Cir. 1993).                 The amended complaint was

disallowed only because it was deemed futile; and, as we assume it

would otherwise have been allowed since it was the first attempted

amendment, its added factual allegations will also be taken as

true.

           In     July    2008     Menard    lived       in    West    Springfield,

Massachusetts, near a rail freight yard owned and operated by CSX,

and he regularly walked across the rail yard on his way to and from

his home, as did others who lived in the area.                  This included, as

it turned out, crossing active railroad tracks.                     Heading home on

July 30, 2008, Menard entered the rail yard; he says that at least


                                       -2-
three CSX employees saw him enter, he made eye contact with some

and none told him to leave.   Menard says that signs did not clearly

warn him of the dangers of entering the yard but does not deny

knowing that it was railroad property used to switch and store

trains.

          Once inside the rail yard, Menard saw several trains on

different tracks, including one train on the track nearest to him

that was moving very slowly under the control of an engineer and

the guidance of a conductor on the ground. Menard made eye contact

with both.   Neither warned him to leave although the conductor

waved his right arm, apparently to indicate that Menard should move

in one direction.   Menard continued to walk across the rail yard

until, at some point, his right foot was pinned as an activated

rail switch moved a segment of track.

          With his foot crushed and in great pain, Menard freed

himself and staggered about 30 feet, where he was struck by an

oncoming train.   Grabbing the train to prevent being dragged under

it, he nevertheless ultimately fell under the train and his left

leg was severed, his left arm was badly damaged in the encounter

and his right foot was later amputated.     In May 2011, just under

three years after the accident, Menard and his mother, Carol

Menard, filed a complaint in Massachusetts state court against CSX,

which the latter removed to federal court based on diversity.




                                 -3-
           One count of the complaint asserted both a recklessness

claim and a negligence claim on Menard's behalf; the other count,

for Carol Menard, is for loss of consortium and, having been

abandoned on the appeal, needs no discussion here.          CSX answered

and moved to dismiss for failure to state a claim.        Menard moved to

amend the complaint, adding more detail and separating his own

prior count into two: a negligence claim and a separate claim

charging "willful and wanton conduct" by CSX.

           Thereafter, the district court ruled that Menard was

indisputably a trespasser in the rail yard so that the only duty

that CSX owed to Menard under Massachusetts law was a duty to

refrain   from   willful,   wanton     or   reckless   conduct--with   one

qualification, namely, that state law imposes a duty of reasonable

care on the property owner where a trespasser is in a position of

"peril" inside the property and his presence is known to the owner.

Menard v. CSX Transp., Inc., 840 F. Supp. 2d 421, 424 (D. Mass.

2012).

           Given this legal framework, the district court held that

the initial complaint failed to state a claim and that the facts

alleged in the proposed amended complaint, accepted as true, also

failed to do so:   they did not allege that any employee knew that

Menard was in the vicinity of the switch or otherwise in a position

of peril; and, even if a CSX employee did see Menard staggering

across the rail yard after he freed himself from the switched


                                     -4-
rails, Menard alleged no facts to suggest that any reasonable steps

were available to CSX to protect Menard from being struck or

falling under the train.   Id. at 424-28.

          On Menard's appeal, this court reviews the dismissal de

novo, accepting allegations of fact but not "conclusory legal

allegations (which need not be credited)."   Morales-Cruz v. Univ.

of P.R., 676 F.3d 220, 224 (1st Cir. 2012).     The district court

correctly stated Massachusetts law: a trespasser is generally

protected only against willful, wanton or reckless conduct by the

owner save that an owner, if aware of a trespasser who is in a

position of peril, must take reasonable steps to avert injury to

the trespasser.1

          The qualification, of some importance here, is more

precisely reflected in one of the earlier cases, Pridgen v. Boston

Housing Authority, 308 N.E.2d 467 (Mass. 1974); there the court

held that the trial judge correctly instructed jury that



     1
      Schofield v. Merrill, 435 N.E.2d 339, 340-341 & n.2 (Mass.
1982) ("trespasser is entitled to no greater duty of care
from . . . the landowner . . . than that he refrain from wilful,
wanton or reckless disregard for the trespasser's safety," although
"reasonable care" is owed to trespassers who are known to be in a
"position of peril" and (by statute) to "certain foreseeable child
trespassers"); accord Boyd v. Nat'l R.R. Passenger Corp., 845
N.E.2d 356, 362 (Mass. 2006) (railroad not liable for negligence in
causing the death of a trespasser but "can be held liable for
damages if the conduct of its agents that caused such death was
wilful, wanton, or reckless"); McDonald v. Consol. Rail Corp., 502
N.E.2d 521, 523-25 (Mass. 1987) (general rule is that landowner's
only duty to adult trespasser is to refrain from willful, wanton
and reckless conduct).

                                -5-
          although an owner or occupier of land owes a
          trespasser only the duty to refrain from
          wilful, wanton or reckless conduct, where a
          trespasser is in a position of peril or in a
          helpless situation and his presence becomes
          known, the owner then has a duty to use
          reasonable care to avoid injuring him.

Id. at 474.

          The common law rule limiting liability to trespassers,

Restatement (Second) of Torts § 333 (1965), has been modified in

some jurisdictions to require landowners to exercise "reasonable

care under all the circumstances in the maintenance and operation

of their property," e.g., Ouellette v. Blanchard, 364 A.2d 631, 634

(N.H. 1976); accord Rowland v. Christian, 443 P.2d 561, 566 (Cal.

1968), superseded in part by Cal. Civ. Code § 847 (West 2012), or

reasonable care when the landowner "know[s] that the presence of

trespassers is to be expected," e.g., Eichelberg v. Nat'l R.R.

Passenger Corp., 57 F.3d 1179, 1183-84 (2d Cir. 1995) (Calabresi,

J.) (citation omitted) (stating Connecticut law).

          Indeed, the Restatement itself softens the common law

rule by yet another variation, creating liability for failure to

exercise "reasonable care" for the safety of trespassers when a

landowner "knows" or "should know" that "trespassers constantly

intrude upon a limited area" of his property. Restatement (Second)

of Torts § 334.   But in Schofield, the Supreme Judicial Court,

finding the arguments for abolishing the common law rule to be

"unconvincing," squarely rebuffed a proposal by the dissenters to


                               -6-
extend the duty of reasonable care to known or likely trespassers.

Compare 435 N.E.2d at 344 (majority opinion), with id. at 345-47

(Liacos, J., dissenting).

            Menard's broadest position is that railroad employees

were aware that he had entered the rail yard and, knowing that such

a yard is a place of danger, they acted both negligently and

willfully, wantonly and recklessly in failing to warn him off the

property.    As to danger there can be no doubt: an active railroad

yard hosts a number of interconnected track segments and multiple

trains are liable to be moving at the same time.               Menard himself

can hardly have been ignorant of these hazards since his complaint

alleges that he crossed through the yard with some regularity.

            In any event, if Menard is deemed a trespasser, the duty

owed to him--unless and until a specific peril threatened him and

this became known to CSX--was only to avoid willful, wanton or

reckless conduct.       Whatever the risk in crossing a railroad yard,

the dangers of injury in this case were apparently not so severe as

to prevent regular crossings of the yard by Menard and others like

him.       Absent     aggravating    circumstances,      the    case    law   in

Massachusetts       makes   clear   that   an   adult   who   chooses   without

permission to trespass upon railroad tracks is not entitled to

recover.2


       2
      See, e.g., Montes v. Mass. Bay Transp. Auth., 843 N.E.2d 611,
616 (Mass. 2006) (plaintiff, a trespasser on defendant's tracks,
must show that "the risk of death or grave bodily injury to him was

                                      -7-
            Neither in the district court nor on appeal does Menard

ever directly dispute that he was a trespasser or argue that he was

there by permission or as a licensee.          Menard's proposed amended

complaint   does   allege    the   CSX    "repeatedly   and    persistently

permitt[ed]   individuals,    including      Mr.   Menard,    to   cross   the

Railroad Yard with regularity."          But this appears to be aimed at

characterizing the failure to interdict him as reckless rather than

as a claim of permission or license.

            In any event, about the closest Massachusetts case law

seems to come to a case of possible implied permission or license

to cross railroad tracks involved stronger facts: a crossing was

not merely used with regularity but appeared on the railroad's own

maps, was marked with a crossing sign, and was laid with planks.

Miller v. Bos. & Me. Corp., 397 N.E.2d 341, 342-43 (Mass. App. Ct.

1979).3   Menard nowhere alleges facts similar to those in Miller,

even if a licensee argument were not forfeit by failure expressly

to advance it in the lower court and in this one.




known or reasonably apparent" to the train operator and that the
operator "chose to run the risk rather than alter his conduct
or . . . failed reasonably to recognize the risk").
     3
      Moreover, the plaintiff in Miller was a minor (age 12), 397
N.E.2d at 342, and Massachusetts law establishes that landowners
owe a higher duty of care to foreseeable child trespassers than to
adult trespassers. See Mass. Gen. Laws Ann. ch. 231, § 85Q (West
2012); Soule v. Mass. Elec. Co., 390 N.E.2d 716, 718-21 (Mass.
1979).

                                    -8-
          Massachusetts   law   makes   it   a   crime   to   walk   across

railroad tracks anywhere except at established crossings, see Mass.

Gen. Laws Ann. ch. 160, § 218 (West 2012), and its courts have

taken this to refute any claim of an implied license to walk on any

other point along the tracks.4     A child who trespasses on train

tracks may yet be able to recover for injuries sustained provided

that the child's presence was "foreseeable" to the railroad and

that the child did not "realize the risk involved," McDonald v.

Consol. Rail Corp., 502 N.E.2d 521, 524 (Mass. 1987) (internal

quotation marks omitted), but Menard was no child.

          Menard says that the conductor guiding the slow-moving

train on the track--the first track that Menard crossed on his

fateful walk cross the rail yard--waved his arm at Menard.           This

confirms in some sense that a CSX employee knew Menard was in the

yard; but Menard makes no claim that the conductor was beckoning

him into the yard or across the track.           The amended complaint

merely says that the conductor "waved his right arm as though to

direct Mr. Menard to move to his right."

          To this point in his journey through the yard, Menard's

own version of events fails to state a claim but the answer might

be different as to what happened thereafter.       In substance, Menard


     4
      See,  e.g.,   Shattuck  v.   Trs.  of   Bos.   Univ.,  No.
SUCV2006-03635-E, 27 Mass. L. Rep. 288, 2010 Mass. Super. LEXIS
225, at *7-8, 2010 WL 3232296, at *3 (Mass. Super. Ct. Aug. 3,
2010); see also Gage v. City of Westfield, 532 N.E.2d 62, 70 n.8
(Mass. App. Ct. 1988).

                                 -9-
says that after he continued on his way, his foot was trapped and

badly injured by the shifted track; that he then stumbled on about

30 feet after the injury; and that "[u]pon information and belief,

employees and/or agents of CSX knew that Mr. Menard had been

injured by the rail switch and had sufficient time to take action

to prevent further injury to him."

           The quoted statement clearly aims to invoke the exception

to the trespasser rule for those perceived to be in peril, see

Pridgen, 308     N.E.2d   at   476-77,    but   nothing    in    the complaint

provides any facts to support the general statement either that

Menard was seen by CSX workers after he was hit or, if seen, could

have been rescued by reasonable care.           Menard says the allegation

is made on "information and belief"; but if he had any facts to

support   this   assertion,     they   should    have     been   set   forth.

"Information and belief" does not mean pure speculation.5

           As the district judge observed, neither the original

complaint nor the proposed amendment "allege that Mr. Menard saw

any employees in the vicinity of the railroad switch when he was

injured, that he called to anyone for help, or that any specific

person saw Mr. Menard's peril."          Menard, 840 F. Supp. 2d at 428.


     5
      "Upon information and belief" signifies that "allegations are
'based on secondhand information that [the asserting party]
believes to be true.'" Pirelli Armstrong Tire Corp. Retiree Med.
Benefits Trust v. Walgreen Co., 631 F.3d 436, 442 (7th Cir. 2011)
(quoting Black's Law Dictionary 783 (7th ed. 1999) (alterations
omitted)); see also Zuk v. E. Pa. Psychiatric Inst. of the Med.
Coll. of Pa., 103 F.3d 294, 299 (3d Cir. 1996).

                                   -10-
Nor do the complaints "even allege how much time passed between Mr.

Menard's first and second injuries," let alone identify even

briefly what could have been done by CSX workers in the interval.

Id.

           In years past general statements tracking the law were

often regarded as a passport to discovery or trial; but circuit

precedent had been tightening even before the Supreme Court made

clear in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft   v.   Iqbal,   129   S.   Ct.    1937   (2009),   that   conclusory

statements must rest on pleaded facts.             This is so not only of

legal boilerplate (e.g., "conspiracy," "willfully") but also of

assertions nominally cast in factual terms but so general and

conclusory as to amount merely to an assertion that unspecified

facts exist to conform to the legal blueprint.6

           Nevertheless, "some latitude" may be appropriate where a

plausible claim may be indicated "based on what is known," at least

where, as here, "some of the information needed may be in the

control of [the] defendants."       Pruell v. Caritas Christi, 678 F.3d

10, 15 (1st Cir.), cert. denied, 132 S. Ct. 1969 (2012).            Here, one



      6
      See, e.g., Acosta v. U.S. Marshals Serv., 445 F.3d 509, 514
(1st Cir. 2006) ("conclusory assertion that [defendants] were
deliberately indifferent to his serious medical needs"); E. Food
Servs., Inc. v. Pontifical Catholic Univ. Servs. Ass'n, 357 F.3d 1,
7-9 (1st Cir. 2004) (implausible assertions as to relevant market);
Resolution Trust Corp. v. Driscoll, 985 F.2d 44, 48 (1st Cir.
1993) (conclusory assertion that obligations were "assumed"
unsupported by any identified act or document).

                                    -11-
might not expect precise recollection from a man badly injured by

a switched track and shortly thereafter hit and dragged under the

train.   By contrast, CSX likely made its own investigation which,

if not privileged, could easily reveal just what its employees saw

between the switch accident and the denouement.

          Where modest discovery may provide the missing link, the

district court has discretion to allow limited discovery and, if

justified,   a   final   amendment    of    the   complaint.   This   court

suggested as much in Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d

592, 596-97 (1st Cir. 2011), indicating that where "discovery is

likely to reveal the identity of the correct defendant and good

faith investigative efforts to do so have already failed," the

"interests of justice" may warrant remand for limited discovery.7

If tempered by sound discretion, Twombly and Iqbal may produce the

best that can be expected in human affairs which is a sensible

compromise between competing legitimate interests.

          In the end, the response to Twombly and Iqbal is still a

work in progress; and we think that a limited remand is appropriate

to allow Menard to explain to the district judge what basis he has



     7
      See also Loosier v. Unknown Med. Doctor, 435 F. App'x 302,
307 (5th Cir. 2010) (per curiam) ("remand for limited discovery"
regarding "facts peculiarly within the knowledge of defendants");
Morgan v. Hubert, 335 F. App'x 466, 473 (5th Cir. 2009) (per
curiam) (same); see also Swanson v. Citibank, N.A., 614 F.3d 400,
412 (7th Cir. 2010) (Posner, J., dissenting in part) (judge may
allow "limited discovery" while deferring decision on motion to
dismiss).

                                     -12-
to believe that narrow discovery is warranted as to the brief

interval between the switch incident and Menard's fall under the

wheels of the train.     If anything beyond speculation supports

Menard's "information and belief" allegation, that too can be

disclosed. After that, the matter is confided to the discretion of

the district judge.

          The judgment is vacated and the matter remanded for

further proceedings consistent with this decision.     If Menard on

remand offers no solid basis for the remaining peril-and-negligence

allegation and limited discovery is not shown to be promising, the

judgment should be reinstated.    Each side shall bear its own costs

on this appeal.

          It is so ordered.




                                 -13-
