A number of other cases stand for Scholes' proposition that fraud on investors that damages those investors is for the investors, and not the receiver, to pursue, whereas fraud on the receivership entity that operates to its damage is for the receiver to pursue, 744 F.Supp. at 1422, notwithstanding a district court's language granting a receiver authority beyond Article III restrictions. See Fleming v. Lind-Waldock Co., 922 F.2d 20, 24-25 (1st Cir. 1990) (holding that although the district court empowered the receiver "to prevent irreparable loss, damage and injury to commodity customers and clients," the receiver lacked standing to sue for claims belonging to investors, such as violations of the Commodity Exchange Act); B.E.L.T., Inc. v. Lacrad Intern. Corp., No. 01 C 4296, 2002 WL 1905389, at *1-2 (N.D.Ill. Aug. 19, 2002) (holding that the receiver for a corporation had no standing to sue for, inter alia, receipt of funds fraudulently obtained, fraud, and unjust enrichment even though he was appointed "on behalf of all the creditors," because those were claims of the creditors, not of the corporation); Scholes v. Tomlinson, Nos. 90 C 1350/6615/7201, 89 C 8407, 1991 WL 152062, at *2 (N.D.Ill. July 29, 1991) (modifying the order appointing the receiver such as "to omit any other language in the order which purports to confer authority upon the Receiver to institute actions belonging to the investors, clients, or account holders of the
ity is obligatory at the pleading stage"; describing Gooley, infra, as the standard in the "ordinary case"); Roth v. U.S., 952 F.2d 611, 613 (1st Cir. 1991) (12(b)(6) standard for tort claims that were preempted by Civil Services Reform Act does not require court to accept "unsubstantiated conclusions"); Gilbert v. Cambridge, 932 F.2d 51, 62 (1st Cir. 1991) (rejecting allegation of futility of claim proceeding as "rank supposition" in challenge to constitutionality of rent control), cert. denied, ___ U.S. ___, 112 S.Ct. 192, 116 L.Ed.2d 153 (1991); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 878 (1st Cir. 1991) ("Whether or not the time, place and content specificity is met, however, the complaint nevertheless is deficient because the allegations of [securities] fraud are entirely unsupported. The complaint contains no factual allegations that would support a reasonable inference [supporting allegation that specifically identified statements were made with knowledge of falsity]"); Fleming v. Lind-Waldock Co., 922 F.2d 20, 23-24 (1st Cir. 1990) ("requiring that each general allegation be supported by a specific factual basis"; allegations of injury from alleged fraud were "merely conclusions unsubstantiated by fact"); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52-53 (1st Cir. 1990) (for claim of civil rights violation, court need not credit "unsubstantiated conclusions"; plaintiff cannot "rest on subjective characterizations or conclusory descriptions of a general scenario which could be dominated by unpleaded facts. . . . . The alleged facts must specifically identify the particular instance(s) of discriminatory treatment and, as a logical exercise, adequately support the thesis that the discrimination was unlawful.")
See ECF 115. Bogle may not add a new claim in response to Defendants' summary judgment motion. See Wasco Prods. Inc. v. Southwall Tech., Inc., 435 F.3d 989, 992 (9th Cir. 2006) ("'[S]ummary judgment is not a procedural second chance to flesh out inadequate pleadings.'") (quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990)). Even if he could add such a claim, Bogle merely asserts, in a conclusory manner, in various portions of his response that O'Neil had supervisory authority over the canine deputies.
In Defendant's view, the fact that the assets alleged to have been wrongfully transferred and retained never belonged to AB & C precludes the Receiver from asserting that he is bringing claims to recover AB & C's assets, because he is, instead, bringing claims to recover assets that always belonged to the investors. (Id. (citing Fleming v. Lind–Waldock & Co. , 922 F.2d 20, 22 (1st Cir. 1990) ).) Assuming, without deciding, that Defendant's characterization of the assets at issue—that they were assets owned by the investors and not by AB & C—is correct, the court nevertheless concludes that the Receiver has standing to assert the claims in his complaint.
A sensible rule in this circuit dictates that “the necessary factual averments are required with respect to each material element of the underlying legal theory.... Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings.” Fleming v. Lind–Waldock & Co., 922 F.2d 20, 24 (1st Cir.1990); Lugo v. Avon Products, Inc., 777 F.Supp.2d 275, 298 (D.P.R.2011). “[P]laintiffs may [not] leave defendants to forage in forests of facts, searching at their peril for every legal theory that a court may some day find lurking in the penumbra of the record.”
A sensible rule in this circuit dictates that "the necessary factual averments are required with respect to each material element of the underlying legal theory.... Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings." Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir.1990); Lugo v. Avon Products, Inc., 777 F. Supp. 2d 275, 298 (D.P.R. 2011). "[P]laintiffs may [not] leave defendants to forage in forests of facts, searching at their peril for every legal theory that a court may some day find lurking in the penumbra of the record."
It is the law of this court, however, that "summary judgment is not a procedural second chance to flesh out inadequate pleadings." Fleming v. Lind-Waldock Co., 922 F.2d 20, 24 (1st Cir. 1990). [T]he necessary factual averments are required with respect to each material element of the underlying legal theory.
Legally speaking, then, Fine can only sue on behalf of Bleidt or the entities named in the Order for Appointment. See Fleming v. Lind-Waldock Co., 922 F.2d 20, 25 (1st Cir. 1990). And as explained above, both Bleidt and APAM are subject to the defense.
Official Comm. of Unsecured Creditors v. R.F. Lafferty Co., Inc., 267 F.3d 340, 354 (3d Cir. 2001). See Fleming v. Lind-Waldock Co., 922 F.2d 20, 28 (1st Cir. 1990). Appellants seek to apply that doctrine to bar claims by the Trustee against the Debtor's alleged co-conspirators, Merrill and Burns, on the basis of the Debtor's participation in the fraud.
DISCUSSION On a motion to dismiss this court accepts the factual allegations in the complaint as true and makes all reasonable inferences in favor of TSI. Watterson v. Page, 987 F.2d at 3. The general allegations, however, must "be supported by a specific factual basis." Fleming v. Lind-Waldock Company, 922 F.2d 20, 23 (1st Cir. 1990) (court ignores conclusions or generalized characterizations of a pleader as essentially pleader's reactions and "empirically unverifiable"). Although "great specificity is ordinarily not required," Garita Hotel, Ltd. v. Ponce Federal Bank, 958 F.2d 15, 17 (1st Cir. 1992), it is necessary to allege facts to support "each material element of the underlying legal theory." Fleming v. Lind-Waldock Company, 922 F.2d at 23. As phrased in Garita Hotel and repeatedly in other cases, a court may dismiss a count "'for failure to state a claim only if it appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.'" Garita Hotel, Ltd. v. Ponce Federal Bank, 958 F.2d at 17 (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)). A. Preemption and the Trade Secrets Counts (Counts I and II)