
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          December 2, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Alice Net  Carlo with  whom  Carlos  E. Rosado  was on  brief  for            ________________             _________________        appellant.            Manuel Moreda-Toledo for appellee.            ____________________                                 ____________________                                 ____________________               COFFIN,  Senior  Circuit Judge.    The  issue before  us  is                        _____________________          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                                         -3-          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.               ________                                         -4-
