Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1630
DARLENE A. TRACY,
Plaintiff, Appellant,
v.
OPRAH WINFREY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Craig J. Tiedemann and Tiedemann Law Firm, on brief for
appellant.
Robert A. Bertsche, Kimberley Keyes and Prince, Lobel, Glovsky
& Tye, and Charles L. Babcock, Nancy W. Hamilton and Jackson Walker
L.L.P., on brief for appellees.
June 11, 2008
Per Curiam. Darlene Tracy has appealed the district
court's dismissal of her complaint for failure to state a claim.
See Fed. R. Civ. P. 12(b)(6). We review such a dismissal de novo.
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008). Upon de
novo review, we affirm.
By order dated October 11, 2007, we rejected Tracy's
contentions that this court lacks jurisdiction because no final
judgment entered. Tracy has reiterated those contentions in her
appellate brief. We rest on our order of October 11, 2007 and need
not discuss those contentions further.
We reject Tracy's claim that the district court's
dismissal was, in substance, a dismissal for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). It clearly was
not. Nor are we persuaded that the district court was misled by
any alleged mischaracterization of the jurisdictional basis for the
complaint appearing on the civil cover sheet.
The district court dismissed Tracy's complaint because
the "complaint fails to allege facts sufficient to support a claim
of copyright infringement or any other claim against these
defendants." This is a dismissal for failure to state a claim,
pursuant to Rule 12(b)(6) and, contrary to Tracy's allegation, it
adequately explains the basis for the court's ruling.
"Dismissal for failure to state a claim is appropriate if
the complaint fails to set forth factual allegations, either direct
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or inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory." Id.
(internal quotation marks and citations omitted). Upon our de novo
review, neither copyright nor misappropriation of trade secret are
apt legal theories for the facts as pled by Tracy, which, even
construed in her favor, reveal that Tracy voluntarily and without
reservation submitted her material to the defendants. Nor would
the defendants' refusal to return her material constitute a claim
of fraud.
Tracy's contention that the district court failed to
permit her an opportunity to amend her complaint or to file
supplemental or new pleadings is misplaced. The court's dismissal
was not sua sponte. Cf. Gonzalez-Gonzalez v. United States, 257
F.3d 31, 36-37 (1st Cir. 2001). Based on the defendants' motions
to dismiss to which she responded, Tracy was on notice of the
defects in her complaint. Nothing in Tracy's opposition sufficed
to overcome these defects. Her motion to amend, filed after entry
of judgment, which simply reiterated these inadequate arguments was
similarly deficient. There was no abuse of discretion in denying
the motion to amend. See Trans-Spec Truck Serv., Inc. v.
Caterpillar Inc., No. 07-1476, slip op. at 21 (1st Cir. Apr. 30,
2008) (reciting the standard of review). Similarly misplaced is
Tracy's suggestion that this court can provide relief pursuant to
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Fed. R. Civ. P. 60(b). Any such motion is properly filed in the
first instance in the district court.
Finally, assuming without deciding that a request for
enforcement of a statutory attorney's lien, pursuant to Mass. Gen.
L. c.221, § 50, is properly initiated by motion filed in this
court, we deny the motion filed by Tracy's counsel, as the statute
requires that a judgment have entered in the client's favor and no
such judgment has entered in this case.
The district court judgment of dismissal entered on March
14, 2007 is summarily affirmed. Loc. R. 27.0(c).
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