             Not for Publication in West's Federal Reporter
          Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

             United States Court of Appeals
                        For the First Circuit

No. 02-1116

                     DEBRA BRAGA; ANTONIO BRAGA,
                       Plaintiffs, Appellants,

                                  v.

                            GENLYTE, INC.,
                         Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS
               [Hon. Rya W. Zobel, U. S. District Judge]


                                Before

                        Selya, Circuit Judge,

                John R. Gibson,* Senior Circuit Judge,

                and Greenberg,** Senior Circuit Judge.


     Brian R. Cunha, with whom Brian Cunha & Associates, P.C. was
on brief, for appellants.
     Brian H. Lamkin, with whom Timothy P. VanDyck and Edwards &
Angell, LLP were on brief, for appellee.


                          February 13, 2003




    *
      Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
     **
      Hon. Morton Greenberg, of the Third Circuit, sitting by
designation.
            JOHN R. GIBSON, Senior Circuit Judge.        Antonio and Debra

Braga appeal from an order of the district court dismissing, under

Rule 12 (b)6 of the Federal Rules of Civil Procedure, their amended

complaint against Genlyte Group, Inc. based on injuries that

Antonio Braga sustained while operating a press during the course

of his employment with Genlyte-Thomas Group, LLC. The Bragas claim

that these injuries were caused by a defective press that had been

modified    on   several    occasions    either    by    Genlyte   or   its

predecessors, and argue that they can sue Genlyte Group, Inc. as

the successor in liability for the negligence of Lightolier, Inc.,

a company which merged into Genlyte in 1992.       The Bragas also argue

that dismissal without leave to file a further amended complaint

was in error.    We reverse and remand.

                                   I.

            On reviewing this Fed. R. Civ. P. 12(b)(6) order, we

recite the facts as alleged by the Bragas and accept as true all

well-pleaded     factual   averments     and   indulge    all    reasonable

inferences in favor of the plaintiff.      SEC v. SG Ltd., 265 F.3d 42,

46 (1st    Cir. 2001).   In their amended complaint, the Bragas allege

that Antonio Braga sustained his injury while operating a hydraulic

press designed to shape sheet metal for the manufacture of light

fixtures at a plant in Fall River, Massachusetts.               In order to

operate this press, a worker would have to push two electrical

buttons attached to the body of the press.        As long as both buttons


                                   -2-
were pushed within four seconds of one another, the press would

activate, driving the press ram down into a "die space" into which

the sheet metal designated for molding would be inserted.            On

November 18, 1998, Mr. Braga was working with the press when a

piece of metal inserted into the die space caused it to jam.         Mr.

Braga attempted to correct this problem by manually removing the

piece of metal that caused the jam from the press.        In the course

of leaning into the press to remove the jam, while his left hand

was under the press ram, he inadvertently depressed both palm

buttons within a four second interval.       The press was activated,

and the press ram crashed down on Mr. Braga's left hand, severing

all of his fingers.

            The Bragas allege that at the time of his injury, Mr.

Braga was employed by an entity called Genlyte-Thomas Group, LLC.1

Genlyte-Thomas was formed on April 24, 1998, after the defendant,

Genlyte, had merged with another corporation, Thomas Industries.

Genlyte became a controlling member of Genlyte-Thomas and continued

to own the machinery at the Fall River plant after the merger.

Before this merger, Genlyte had also been Mr. Braga's immediate

employer.     Furthermore,   Genlyte   had   previously   acquired   the

hydraulic press from another corporation named Lightolier, Inc.



     1
      The amended complaint does not admit, but the Bragas state in
their brief, that Antonio has received workers' compensation
benefits, presumably paid by or on behalf of Genlyte-Thomas, his
immediate employer at the time of injury.

                                 -3-
("Lightolier"), which in turn had originally acquired the press in

1982.     The Bragas allege that Lightolier was once a subsidiary of

Genlyte; however, sometime in 1992, Genlyte merged with Lightolier

and dissolved the corporation, although it continued to do business

under the Lightolier name.

             The Bragas originally filed a claim for negligence and

loss of consortium in Massachusetts state court.2     Genlyte removed

the case to federal court on the basis of diversity jurisdiction,

28 U.S.C. § 1332 (2000).        After removal, the Bragas filed an

amended complaint that alleged that Lightolier had purchased the

press on January 12, 1982, and that since then either Genlyte

"and/or Lightolier" had negligently modified the press on five

different occasions.3      Although they allege that Genlyte itself

negligently modified the press on November 14, 1995, February 15,

1996, and March 29, 1996, they also make two other allegations of

negligent modification without specifying the party making the

modifications.      From the face of the complaint, it is not clear

from these two allegations whether the Bragas are attempting to

state a claim against Genlyte directly or as the successor in

liability to the negligence of Lightolier.      Nevertheless, we must



     2
      The Bragas originally filed this claim against Lightolier.
Genlyte's counsel entered an appearance as "Lightolier" in its
petition for removal, which states that Lightolier ceased to exist
in 1991.
     3
         The Bragas' amended complaint named Genlyte as the defendant.

                                   -4-
construe these allegations in the light most favorable to the

Bragas, and so we interpret the amended complaint, as urged by the

Bragas' counsel both in the district court and on appeal, to allege

successor liability.   This is the issue that the parties have

briefed exhaustively before us.

          Genlyte moved under Fed R. Civ. P. 12(b)(6) to dismiss

the amended complaint, arguing that as the majority owner of

Genlyte-Thomas Group, LLC, Mr. Braga's employer at the time of

injury, it is immune from suit under the exclusivity provision of

the Massachusetts Workers' Compensation Act.   Genlyte also argued

that it is immune even if the amended complaint is read to allege

negligence on the part of Lightolier, because the complaint alleges

only that Lightolier modified the machine for the use of its own

employees. In response, the Bragas presented a further amended

complaint to the district court which stated that Genlyte "by

virtue of the merger with 'Lightolier, Inc.,' was responsible for

the negligent modifications, changes, repairs, and/or maintenance

of the subject hydraulic press that caused [Mr. Braga's] injuries,"

seemingly an attempt to allege more clearly that Genlyte was liable

for the negligence of Lightolier.      The district court made a

handwritten entry on the bottom of Genlyte's 12(b)(6) motion

stating, "Allowed, as Lightolier, Inc. would also be an employer

for this purpose.   Herbolsheimer v. SMS Holding Co., Inc., 608

N.W.2d 487 (Mich. Ct. App. 2000)," and dismissed the case in its


                               -5-
entirety.

                                 II.

            We review de novo the district court's dismissal of the

Bragas' amended complaint for failure to state a claim under Fed.

R. Civ. P. 12(b)(6).    SEC v. SG Ltd., 265 F.3d 42, 46 (1st Cir.

2001).   We reverse the order of the district court if we conclude

that the facts viewed in the light most favorable to the Bragas

justify recovery under "any supportable legal theory." Cruz v.

Melecio, 204 F.3d 14, 21 (1st Cir. 2000).       "[A] complaint should

not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief."     Conley v.

Gibson, 355 U.S. 41, 45-46 (1957).

            Since this case comes to the federal courts on removal

based on diversity jurisdiction, we must under Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938), apply state substantive law, which in

this case is the law of Massachusetts.      As we observed in Blinzler

v. Marriott International, Inc., 81 F.3d 1148, 1151 (1st Cir.

1996), the task of a federal court sitting in diversity is limited,

in the first instance, to applying those rules of law announced by

the highest court of the State.        If that court has not directly

addressed the issues raised in the case, the federal court must

then "ascertain the rule the state court would most likely follow

under the circumstances, even if our independent judgment on the


                                 -6-
question might differ." Id.         We may seek guidance "in analogous

state court decisions, persuasive adjudications by courts of sister

states,   learned     treatises,    and    public      policy    considerations

identified in state decisional law."          Id.

           Here, the district court was required to apply the

substantive law of Massachusetts in deciding whether the Bragas

have alleged facts sufficient to state a claim for relief.               Moores

v. Greenberg, 834 F.2d 1105, 1107 (1st Cir. 1987).                     For that

reason, its one line order relying on Herbolsheimer v. SMS Holding

Co., Inc., 608 N.W.2d 487 (Mich. Ct. App. 2000), a case decided by

the Michigan Court of Appeals, is of little help.                 The district

court made no effort to determine whether the amended complaint

states a claim under Massachusetts law, under the standard we set

out in Blinzler.      We are reluctant to affirm an order of dismissal

where the district court neglected to analyze the questions raised

by the complaint under the law governing the case, especially when,

as now, Massachusetts law arguably may permit the maintenance of a

cause of action.

           Furthermore, Herbolsheimer was primarily concerned with

the scope of the dual persona doctrine under the earlier Michigan

Supreme Court case of Howard v. White, 523 N.W.2d 220 (Mich. 1994).

Both the majority and dissent in Herbolsheimer discussed at length

the   decision   of   the   New   York    Court   of   Appeals    in   Billy   v.

Consolidated Machine Tool Corp., 412 N.E.2d 934, 939-941 (N.Y.


                                     -7-
1980).   Billy held liable a corporation that was the plaintiff's

employer but which had become the successor in liability to another

corporation that it had acquired and which had manufactured the

machine that injured the plaintiff.          Herbolsheimer, 608 N.W.2d at

494-96 (majority), 499-501 (dissent).             In addition, both the

majority and the dissent in Herbolsheimer cited Gurry v. Cumberland

Farms,   550   N.E.2d   127   (Mass.    1990),   in   the   course   of   their

analysis.      Herbolsheimer, 608 N.W.2d at 497 (majority), 499 n.2

(dissent).      Gurry, 550 N.E.2d at 130-31, was a decision by the

Supreme Judicial Court of Massachusetts that explicitly applied the

dual persona doctrine in the context of successor liability.               That

Herbolsheimer, the basis for the district court's ruling, presents

differing views under Michigan law as to successor liability points

to the necessity of focused discovery and an analysis of this issue

under Massachusetts law.      The discussion of Gurry, a Massachusetts

case, and Billy, upon which Gurry relied in part, by both the

majority and dissent in Herbolsheimer highlights the necessity of

an analysis of a more fully developed factual scenario under

Massachusetts law.      In other words, the complexity of the issues

raised in Herbolsheimer and Gurry underscores the need to analyze,

in a concrete factual setting, the question of whether an employer

that was also the successor in interest to a former corporation

whose negligence allegedly caused the plaintiff's injury could be

liable under Massachusetts law. Certainly, an analysis of Gurry is


                                       -8-
central to this question.

          The questions raised by the intersection of the immunity

of an employer under the workers' compensation scheme and successor

liability are complex and fact-bound.    Because we encounter these

issues on appeal from a Rule 12(b)(6) motion, we are not prepared

to conclude at this stage that the Bragas can prove no set of facts

that would entitle them to relief.    See Conley, 355 U.S. at 45-46.

                               III.

          We do not pretend that the amended complaint is a model

of clarity.   The Bragas, by a better-delineated pleading, could

probably have avoided time and trouble.     But despite its lack of

specificity, we cannot say that the amended complaint stumbles over

the modest threshold erected by Rule 12(b)(6). For that reason, we

reverse and remand for further proceedings consistent with this

opinion. We regard the district court's constructive denial of the

leave to further amend the complaint as moot, but the Bragas may,

if they wish to do so, renew that motion in the district court.

          Reversed and remanded.     No costs.




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