
USCA1 Opinion

	




          June 24, 1993         [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1253                               ROSS B. GRIFFIN, ET AL.,                               Plaintiffs, Appellants,                                          v.                                HERBERT T. SCHNEIDER,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U. S. District Judge]                                            ____________________                              _________________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                              _________________________               Linda Christ, with whom  Jed Davis and Jim Mitchell  and Jed               ____________             _________     _____________________          Davis, P.A. were on brief, for appellants.          ___________               Peter B. Bickerman, with  whom Lipman and Katz, P.A.  was on               __________________             _____________________          brief, for appellee.                              _________________________                              _________________________                    Per Curiam.  Plaintiffs, former employees of Insituform                    Per Curiam.                    __________          of  New  England,  Inc.  (Insituform), brought  suit  in  Maine's          federal  district  court  against defendant-appellee  Herbert  T.          Schneider,  the  chief  executive  officer of  Insituform.    The          plaintiffs  filed several  complaints  in rapid  succession, but,          each  time, the defendant prevailed on  a motion to dismiss.  See                                                                        ___          Fed. R. Civ. P. 12(b)(6).  Following entry of final judgment, the          plaintiffs appealed.1  We affirm.                    On  appeal, plaintiffs  assign  error  to the  district          court's  dismissal of four claims.2  We  need not dally.  We have          repeatedly  observed that,  when the  trial court  has handled  a          matter appropriately and adequately articulated a sound basis for          its  rulings,  "a  reviewing  tribunal  should  hesitate  to  wax          longiloquent simply to hear its  own words resonate."  In re  San                                                                 __________          Juan  DuPont Plaza Hotel Fire  Litig., 989 F.2d  36, 38 (1st Cir.          _____________________________________          1993).  This  observation has  particular pertinence  here:   not          only   did  the   magistrate   judge  and   the  district   judge          satisfactorily explain the reasons why plaintiffs'  third amended          complaint fails to state one or more claims upon which relief can                                        ____________________               1There  is  some  confusion  as  to which  counts  of  which          complaints  were dismissed.    At oral  argument  in this  court,          however,   the  parties  stipulated   that  the   judgment  below          terminated all  claims against Schneider; and  that the operative          complaint,  for purposes  of  this appeal,  is plaintiffs'  third          amended complaint.  We accept the stipulation.               2The third  amended complaint asserted nine  claims in toto.                                                                   __ ____          Since  plaintiffs'  brief does  not  address  the remaining  five          claims,  the  dismissal of  those claims  must stand.  See, e.g.,                                                                 ___  ____          United States  v. Slade,  980  F.2d 27,  30 n.3  (1st Cir.  1992)          _____________     _____          (noting that arguments made below, but not renewed on appeal, are          deemed waived).                                          2          be  granted, but  also,  the case  is  so idiosyncratic  that  it          possesses extremely limited precedential  value.  Accordingly, we          affirm the  dismissal of plaintiffs' third  amended complaint for          substantially  the reasons  elucidated  below,  adding,  however,          several brief comments.                                          I                                          I                    As    to    plaintiffs'    claims     for    fraudulent          misrepresentation, tortious interference, and  unjust enrichment,          we  rely essentially  upon the  grounds for  dismissal identified          both  by  the magistrate,  see  Recommended  Decision (Sept.  21,                                     ___          1992), and by the  district judge (in the course of  adopting the          magistrate's  recommendations as  to  those three  counts).   See                                                                        ___          Order  and Memorandum of Opinion  (Nov. 2, 1992).   We supplement          these offerings by supplying a few embellishments.                    1.    The  fraudulent  misrepresentation  count  (which          presents perhaps the closest question) still fails, after several          opportunities  to  amend,  to  allege fraud  with  the  requisite          particularity.  See,  e.g., Greenstone v. Cambex  Corp., 975 F.2d                          ___   ____  __________    _____________          22, 25-26  (1st Cir. 1992) (discussing need  for specific factual          allegations to particularize claims  for fraud); Powers v. Boston                                                           ______    ______          Cooper  Corp., 926  F.2d  109, 111  (1st  Cir. 1991)  (discussing          _____________          specificity  required in  pleading  fraud);  McGinty v.  Beranger                                                       _______     ________          Volkswagen, Inc., 633 F.2d 226, 228-29 (1st Cir. 1980) (similar);          ________________          see generally Fed. R. Civ. P.  9(b).  The order for dismissal is,          ___ _________          therefore, supportable as to this claim.                    2.  The tortious interference count, which asserts that                                          3          the defendant  wrongly interfered  with plaintiffs'  contracts of          employment with Insituform,  fails as  a matter of  law.  When  a          corporate officer  acts in his  official capacity,  his acts,  in          law, are acts of  the corporation.  See, e.g.,  DeBrecini v. Graf                                              ___  ____   _________    ____          Bros. Leasing, Inc.,  828 F.2d  877, 879 (1st  Cir. 1987),  cert.          ___________________                                         _____          denied, 484 U.S. 1064 (1988).  Hence, the weight  of authority is          ______          to the effect  that a  corporate officer can  "interfere" with  a          corporation's  contracts, in  a legally  relevant sense,  only by          conduct undertaken outside, or beyond  the scope of, his official          capacity.  See, e.g., Michelson v. Exxon Research & Eng. Co., 808                     ___  ____  _________    _________________________          F.2d  1005, 1007-08  (3d  Cir. 1987)  (holding  that a  corporate          officer  acting in  his  official capacity  could not  tortiously          interfere with a corporate contract because corporations act only          through their officers and agents); Rao v. Rao, 718 F.2d 219, 225                                              ___    ___          (7th  Cir. 1983)  (ruling that  a sole shareholder,  officer, and          director  of a  corporation is  not considered  to be  a separate          entity  capable  of  inducing   the  corporation  to  breach  its          contracts); American Trade Partners,  L.P. v. A-1 Int'l Importing                      ______________________________    ___________________          Enterps., Ltd., 757 F. Supp. 545, 555 (E.D. Pa. 1991) (explaining          ______________          that,  "[b]y  definition,  [tortious   interference]  necessarily          involves  three parties," but, when an  employee is acting within          the scope of  his authority,  he and his  corporate employer  are          considered the same entity); Hickman v. Winston County Hosp. Bd.,                                       _______    ________________________          508  So.2d 237,  239  (Ala. 1987)  (holding  that, unless  acting          outside the scope of their employment and with actual malice, the          officers  of a  corporation cannot  be  held liable  for tortious                                          4          interferences  with  contracts  to  which the  corporation  is  a          party); see also Restatement (Second) of Torts   766.  We believe                  ___ ____          that  the Maine courts  would follow this  rule.   And, here, the          very  thesis of plaintiffs' claim is that Schneider, by virtue of                                                               ____________          his  controlling position  in  Insituform, caused  Insituform  to          _________________________________________          underpay their wages.  This is merely another way  of saying that          plaintiffs'  claim  is  premised  on Schneider's  actions  in  an          official capacity.  Ergo, the lower court appropriately dismissed          the tortious interference count.3                    3.    The  unjust  enrichment  count  founders  because          plaintiffs  neither  explain  how  the  defendant   was  unjustly          enriched,  that is, how Schneider (as  opposed to the corporation          that  he  allegedly controlled)  personally  benefitted from  the                                           __________          purported underpayment of wages, nor set forth facts from which a          plausible inference  of unjust enrichment  might be drawn.4   The          defendant's enrichment is, of course, an essential element of the                                        ____________________               3We note, moreover, that plaintiffs have failed to plead the          elements of a tortious interference claim.  See C.N. Brown Co. v.                                                      ___ ______________          Gillen, 569 A.2d 1206, 1210 (Me. 1990) (setting out elements of a          ______          tortious interference claim).  In particular, they have failed to          set forth  facts tending to  show that Schneider,  through fraud,          intimidation,  or  undue  influence,  procured a  breach  of  the          specified contracts.   See id. (requiring  demonstration of fraud                                 ___ ___          or its equivalent to bottom a tortious interference claim).               4A  purely conclusory  statement, contradicted  by the  very          facts described  in plaintiffs' complaint,  cannot satisfactorily          fill  this  void.    See,  e.g.,  Correa-Martinez  v.  Arrillaga-                               ___   ____   _______________      __________          Belendez, 903  F.2d 49, 52-53 (1st Cir. 1990) (in passing on Rule          ________          12(b)(6)   motion,   a   court   need   not   credit   subjective          characterizations  or  naked  conclusions);  Dartmouth  Review v.                                                       _________________          Dartmouth College, 889  F.2d 13, 16  (1st Cir. 1989)  (discussing          _________________          when  "'conclusions'  become  'facts'  for  pleading  purposes");          Chongris v. Board of  Appeals, 811 F.2d 36, 37  (1st Cir.), cert.          ________    _________________                               _____          denied, 483 U.S. 1021 (1987).          ______                                          5          putative  cause of  action.   See  A.F.A.B. Inc.  v. Town  of Old                                        ___  _____________     ____________          Orchard Beach, 610 A.2d  747, 749 (Me. 1992);  Hart v. County  of          _____________                                  ____    __________          Sagadahoc, 609 A.2d 282, 284 (Me. 1992); 12  Williston, Contracts          _________                                               _________             1479, at  276 (3d  ed. 1970).   Hence, absent  some meaningful          basis  for  an allegation  that  Schneider  himself was  unjustly          enriched, the count  cannot survive.5   See Gooley  v. Mobil  Oil                                                  ___ ______     __________          Corp., 851 F.2d 513, 515  (1st Cir. 1988) (holding that,  to pass          _____          muster under Rule  12(b)(6), a complaint must "set  forth factual          allegations,  either  direct   or  inferential,  respecting  each          material element  necessary to sustain recovery  under [the legal          theory thought to be actionable]").                                          II                                          II                    This  brings  us to  count  VIII of  the  third amended          complaint, which charges Schneider, in his capacity  as a trustee          of  various  corporate  pension and  profit-sharing  plans,  with          violating a fiduciary duty.  With regard to this count, we affirm          the  dismissal  substantially  on  the basis  of  District  Judge          Brody's  well-reasoned analysis.    See Order  and Memorandum  of                                              ___          Opinion  (Feb.  17,  1993).    In  the  third  amended complaint,          plaintiffs aver that  "[c]ontributions to  . . .  the Plans  were          based  on the  level  of compensation"  actually paid  to covered                                        ____________________               5The third amended complaint  alleges that Schneider was the          "owner" of Insituform and  "controlled its operations."  However,          as  painstakingly explicated by the magistrate, plaintiffs allege          no facts sufficient, under Maine law, to warrant the disregard of          Insituform's corporate  identity, the  piercing of its  corporate          veil, or the  imposition of "alter  ego liability" on  Schneider,          personally.   See Recommended Decision (Sept.  21, 1992), at 6-8,                        ___          and  cases  cited therein.   Like  the  district judge,  we adopt          Magistrate Judge Beaulieu's reasoning on this point.                                          6          employees.  Insituform apparently funded the plans at this level.          Thus, even  if defendant,  in his  capacity as  a trustee, had  a          fiduciary  obligation  to collect  required contributions  from a          recalcitrant employer    a matter on  which we do not  opine   he          did  not  breach  it,  for the  contributions  matched  the wages          actually paid.   Hence,  dismissal is appropriate  under existing                                                             ______________          circumstances.          _____________                    Nevertheless,  we  need go  further;  the  form of  the          dismissal gives  us pause.   The record reflects  that plaintiffs          are prosecuting a parallel action against Insituform in the state          courts.    There,  they  allege   among  other  things  that  the          corporation  underpaid their wages.  Should  they prevail on that          theory, then, presumably,  benefit plan contributions  would have          to   be  recomputed   based  on   increased  levels   of  covered          compensation.  And if that circumstance eventuated, the defendant          might  well be held accountable  if he fails  to take appropriate          action to recover incremental amounts due to the plans.  For this          reason,  we  think that,  unlike the  rest  of the  third amended          complaint,  count  VIII ought  not  to have  been  dismissed with          prejudice.  Rather,  it should  have been dismissed  for lack  of          ripeness,  without prejudice to the plaintiffs'  right to bring a          future suit  to enforce defendant's fiduciary  obligations should          changed circumstances  (i.e., a  judgment or  settlement revising                                  ____          the historical  payroll and an  ensuing failure to  collect added          contributions   to  the  plans)   subsequently  justify  such  an          initiative.  We,  therefore, direct the district court  to modify                                          7          the final judgment in this single respect.                    Affirmed as modified.  Costs to appellee.                    ____________________   _________________                                          8
