Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
Nos. 14-1358
14-1737
JANE E. TAYLOR, as an individual and derivatively on
behalf of Jane E. Taylor GST Exempt Trust and
Jane E. Taylor Non-Exempt Trust,
Plaintiff, Appellant,
v.
JAMES M. MOSKOW, JMB GROUP, LLC AND BLACK OAK REALTY, LLC,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Barron, Selya and Stahl,
Circuit Judges.
Paul R. Chomko, with whom Alford & Bertrand, LLC was on brief,
for appellant.
Charlotte L. Bednar, with whom Eckert Seamans Cherin &
Mellott, LLC was on brief, for appellees.
April 21, 2015
SELYA, Circuit Judge. These appeals arise out of the
second of two civil actions prosecuted by plaintiff-appellant Jane
E. Taylor against her brother, James M. Moskow, and corporations
controlled by him. The first action, brought by the plaintiff in
her own right, was dismissed by the district court for failure to
state a claim upon which relief could be granted. See Taylor v.
Moskow, No. 13-10802, 2013 WL 5508157, at *1 (D. Mass. Oct. 1,
2013); see also Fed. R. Civ. P. 12(b)(6). The main basis for this
decision was the court's determination that the plaintiff was
seeking to recover for harm to certain limited liability
corporations and had no standing to do so. See Taylor, 2013 WL
5508157, at *3-4. The order of dismissal in that action was never
appealed.
The plaintiff subsequently commenced the second action,
which undergirds these appeals. In her complaint, she asserted two
traunches of claims. The first traunch comprised claims brought by
her individually; the second traunch comprised claims brought by
her derivatively, that is, as a trustee and beneficiary of a series
of trusts that (she alleged) had beneficial interests in certain
limited liability corporations, not parties to her suit, that owned
properties in Massachusetts.
The district court initially dismissed both traunches of
claims, holding that the maintenance of the entire action was
precluded by the prior judgment. See Taylor v. Moskow, No. 13-
-2-
12675, 2014 WL 931957, at *3 (D. Mass. Mar. 7, 2014). The
plaintiff responded to this adverse decision in two ways: she both
appealed the order of dismissal and moved for reconsideration. The
district court reconsidered in part, determining on reflection that
the judgment in the earlier case did not bar the maintenance of the
second traunch of claims. See Taylor v. Moskow, No. 13-12675, 2014
WL 2573990, at *3-4 (D. Mass. June 6, 2014). But this proved to be
a Pyrrhic victory because the court proceeded to rule that the
second traunch of claims failed for a variety of other reasons to
state causes of action upon which relief could be granted. See id.
at *4-6. The plaintiff timely filed a further notice of appeal.
We consolidated the two appeals and reached them on April
8, 2015. At the start of oral argument, plaintiff's counsel
informed the court that the plaintiff had brought a new derivative
action and that, therefore, the plaintiff wished to waive her
appeal of the dismissal of the second traunch of claims. After
ascertaining that defendants' counsel did not object, we accepted
the waiver and agreed to dismiss that portion of the consolidated
appeals. Oral argument ensued with respect to the first traunch of
claims alone.
After consideration of the parties' briefs and oral
arguments, we summarily affirm the dismissal of the first traunch
of claims. As to those claims, the district court premised its
order of dismissal on principles of claim preclusion. The
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plaintiff's briefs in the district court, however, contained no
developed argumentation as to why claim preclusion does not apply.
That omission is fatal to her argument on appeal. "If any
principle is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal."
Teamsters Union, Local No. 59 v. Superline Transp. Co., 953 F.2d
17, 21 (1st Cir. 1992).
Here, moreover, the plaintiff doubled down on her
omission. Her brief on appeal is similarly devoid of any reasoning
suggesting (let alone demonstrating) that the doctrine of res
judicata does not bar the claims at issue. "[I]ssues averted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
We need go no further. For the reasons elucidated above,
we dismiss these appeals in part and, as to what remains, affirm
the judgment below.
So Ordered.
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