Boston Property Exchange Transfer Co. v. Iantosca

United States Court of Appeals
For the First Circuit

No. 11-2475

BOSTON PROPERTY EXCHANGE TRANSFER COMPANY,
f/k/a Benistar Property Exchange Trust Company, Inc.,

Plaintiff, Appellant,

v.

JOSEPH IANTOSCA, individually and as a Trustee of Faxon Heights
Apartments Realty Trust and Fern Realty Trust; BELRIDGE
CORPORATION; GAIL A. CAHALY; JEFFREY M. JOHNSTON; BELLEMORE
ASSOCIATES, LLC; MASSACHUSETTS LUMBER COMPANY, INC.; ZELLE
McDONOUGH & COHEN LLP; ANTHONY R. ZELLE, P.C.; and NYSTROM,
BECKMAN & PARIS, LLP,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Joseph M. Pastore III with whom Smith, Gambrell & Russell,
LLP, Sean T. Carnathan and O'Connor, Carnathan, & Mack LLC were on
brief for appellant.
Anthony R. Zelle with whom Thomas W. Evans and Zelle McDonough
& Cohen, LLP were on brief for appellees Joseph Iantosca,
individually and as Trustee of Faxon Heights Apartments Realty
Trust and Fern Realty Trust, Belridge Corporation, Gail A. Cahaly,
Jeffrey M. Johnston, Bellemore Associates, LLC, and Massachusetts
Lumber Company, Inc.

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 Timothy O. Egan with whom George A. Berman, Timothy M.
Pomarole and Peabody & Arnold LLP were on brief for appellees Zelle
McDonough & Cohen LLP, Anthony R. Zelle, P.C., and Nystrom Beckman
& Paris LLP.

June 12, 2013
 SOUTER, Associate Justice. plaintiffs in a prior suit,

several of the defendant-appellees here (the defendants) obtained

a state court judgment for $19.2 million against the plaintiff-

appellant here, Boston Property Exchange Transfer Company (BPE),

formerly Benistar Property Exchange Trust Company. In order to

satisfy that judgment, the successful, present defendants obtained

an order from the state court assigning to them BPE's related

arbitration claims against PaineWebber. In this federal action,

BPE claims damages from the defendant assignees and their lawyers

for mishandling the PaineWebber arbitration. The district court

dismissed all of BPE's claims, either on a motion to dismiss or on

summary judgment. We affirm.

I.

This is the latest of over a decade of state and federal

cases arising out of the financial misconduct of BPE and its owner

Daniel Carpenter.1 In what the parties refer to as the Cahaly

litigation, the following evidence led to findings that BPE,

Carpenter, and other defendants were liable for various forms of

financial misconduct. See generally Cahaly v. Benistar Prop. Exch.

1
See, e.g., Iantosca v. Step Plan Servs., Inc., 604 F.3d 24
(1st Cir. 2010); United States v. Carpenter, 494 F.3d 13 (1st Cir.
2007), cert. denied, 552 U.S. 1230 (2008); United States v.
Carpenter, 405 F. Supp. 2d 85 (D. Mass. 2005); Cahaly v. Benistar
Prop. Exch. Trust Co., 885 N.E.2d 800 (Mass.), cert. denied, 555
U.S. 1047 (2008); Cahaly v. Benistar Prop. Exch. Trust Co., 864
N.E.2d 548 (Mass. App. Ct. 2007); Cahaly v. Benistar Prop. Exch.
Trust Co., 2003 WL 21246167 (Mass. Super. Ct. Feb. 25, 2003).

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Trust Co., 864 N.E.2d 548, 552-53, 559-60 (Mass. App. Ct. 2007);

Cahaly v. Benistar Prop. Exch. Trust Co., 885 N.E.2d 800, 807-09

(Mass.), cert. denied, 555 U.S. 1047 (2008). BPE was a financial

intermediary for "like-kind" property exchanges under section 1031

of the federal tax code, which allows a property owner to avoid

recognizing capital gains from a sale by using the proceeds to

purchase a similar or "like-kind" property within 180 days. The

seller must lodge the proceeds from the sale with a qualified

intermediary (or one of several other regulatory safe harbors)

until the funds are used to buy the replacement property. See 26

C.F.R. § 1.1031(k)-1(g).

The Cahaly plaintiffs, who are among the defendants in

this case, were six individuals or companies that used BPE when

engaging in like-kind exchanges.2 BPE held their funds under

agreements providing that the monies would be available on demand,

prior to which they would be held in escrow accounts, either a

"money market" account earning three percent interest or an

"investment" account earning six percent.

In 1998, Carpenter opened trading accounts for such funds

at Merrill Lynch, superseded in 2000 by new accounts at

2
The plaintiffs in Cahaly, all of whom are defendant-
appellees in this case, were Gail A. Cahaly; Jeffrey M. Johnston;
Bellemore Associates, LLC; Massachusetts Lumber Company, Inc.;
Joseph Iantosca, individually and as trustee of the Faxon Heights
Apartments Realty Trust and Fern Realty Trust; and Belridge
Corporation. Cahaly, 864 N.E.2d at 548 n.1.

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PaineWebber. Contrary to the escrow agreements, Carpenter engaged

in aggressive and high-volume trading of options on technology

stocks, rendered the more risky by margin funding with money

borrowed from the brokerage houses. Although the trading was

successful for a time, Carpenter began to lose money quickly when

technology stocks fell sharply in 2000, the consequences being that

BPE was unable to return the exchangors' funds as required, and

ultimately lost about $8.6 million of their money.

BPE was found liable for (inter alia) conversion, breach

of contract, breach of fiduciary duty, intentional

misrepresentation, and violation of the Massachusetts consumer

protection statute, Mass. Gen. Laws ch. 93A.3 These judgments were

upheld on appeal by the Massachusetts Appeals Court and the Supreme

Judicial Court of Massachusetts, Cahaly, 864 N.E.2d at 559-60;

Cahaly, 885 N.E.2d at 822, and the Cahaly plaintiffs obtained a

final judgment against BPE of some $19.2 million, including

punitive damages, interest, attorneys' fees, and costs.

At the time of that judgment, BPE was about to begin

arbitration of claims against PaineWebber, which it charged with

3
The trial judge granted summary judgment for the Cahaly
plaintiffs on their breach of contract and conversion claims. The
plaintiffs then prevailed at a jury trial on their fiduciary duty
and misrepresentation claims, along with claims under New York and
Connecticut consumer protection statutes. In a subsequent bench
trial, the trial judge found for the plaintiffs on the Chapter 93A
claim. The plaintiffs also prevailed on certain causes of action
against other defendants, including Carpenter, though only the
judgment against BPE is directly relevant here.

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responsibility for its debacle, as described further below. The

Cahaly plaintiffs filed a motion with the Superior Court to compel

assignment of BPE's legal claims to them to help satisfy their

judgment against BPE, a move BPE strenuously opposed. Then-

Superior Court Judge Botsford (who presided over the Cahaly trials)

granted the motion in the following assignment order:

After hearing, and pursuant to G. L. c. 223A,
§ 86A, and c. 214, § 3(6), it is Ordered that
Benistar Property Exchange Trust Company,
Inc.'s legal claims against UBS PaineWebber,
Inc. (PaineWebber) be assigned for prosecution
to the plaintiffs in this action. Any action
that the plaintiffs, as assignees, may take
with respect to the pending NASD proceedings
is a matter for the arbitrators to decide, not
this court. Any damages that may be awarded
to Benistar Property against PaineWebber are
to be held in escrow by the plaintiffs
(through their counsel) pending further order
of this Court.

Thereupon, the Cahaly plaintiffs and their lawyers (who

are also defendants here) took control of the arbitration against

PaineWebber. They promptly replaced BPE's statement of claim with

an amended claim based on a completely new theory of liability.

BPE says here that in doing this, the defendants "hijacked" the

arbitration claims in a way that violated their legal duties as

assignees and attorneys.

Each theory, of course, starts with PaineWebber's

relationship with BPE through the brokerage accounts already

mentioned, which extended from October 2000 through January 2001.

As technology stocks declined in this period, BPE's losses rose to

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$4 million in November and $5.5 million by December 18.

PaineWebber eventually decided to cut its losses from the margin

transactions by forcing BPE to close its accounts and liquidate its

trading positions in December 2000 and early January 2001. The

crux of BPE's original arbitration claim was that PaineWebber

caused BPE's own losses by forcing it to stop trading: if

PaineWebber had allowed BPE to continue trading, BPE would

allegedly have benefitted from a market rally in late December 2000

and January 2001 that could have erased the losses. BPE argued

that PaineWebber bore responsibility not just for losing the $8.6

million, but for the Cahaly plaintiffs' entire judgment against

BPE, which it then estimated at about $20.5 million. BPE sought

indemnification for the Cahaly judgment, contribution for costs and

attorneys' fees related to the Cahaly litigation, and compensation

for other funds that it said PaineWebber withheld wrongfully from

BPE. In total, BPE requested compensatory damages of $29.5

million, along with punitive damages of $58.9 million, which would

treble the award sought to $88.4 million.

From the start, BPE and the state court judge knew that

the Cahaly plaintiffs derided this position. One basis of their

argument for assignment was that BPE's proposed theory of recovery

was "meritless" and that the arbitration panel would "certainly

never find PaineWebber liable for stopping Carpenter from

continuing to illegally trade the plaintiffs' depository funds."

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Once the assignment was ordered, the Cahaly plaintiffs substituted

an amended statement of claim based on the theory that PaineWebber

never should have allowed Carpenter and BPE to speculate in

technology stock options with what it knew or should have known

were escrowed property exchange funds. The Cahaly plaintiffs also

charged that PaineWebber committed professional malpractice in

brokering unsuitable speculative trades for BPE, and they contended

that the broker's failure to discern the nature of BPE's business

and stop the trading earlier constituted negligence and breach of

fiduciary duties, among other claims. The amended claim was stated

at $8.6 million in compensatory damages plus attorneys' fees,

costs, and an unspecified punitive amount.

The arbitration panel ruled for BPE on the basis of the

amended theory, with an award of $8.7 million in compensatory

damages along with interest and attorneys' fees, for a total of

$12.7 million, but with no punitive damages. The panel gave no

explanation for its decision. In accordance with the assignment

order, the award went to the Cahaly plaintiffs toward satisfaction

of their judgment against BPE, but because the amount was less than

the judgment, BPE received nothing.

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 II.

On December 12, 2008, BPE filed this complaint against

the Cahaly plaintiffs and their lawyers,4 the Iantosca defendants

and the attorney defendants, in federal district court, citing

diversity jurisdiction. As amended, the complaint claimed

negligence, breach of the attorney-client duty of care, and breach

of fiduciary duty against the attorney defendants (Counts I-III);

negligence, breach of fiduciary duty, and breach of contract

against the Iantosca defendants (Counts IV-VI); and violation of

Mass. Gen. Laws ch. 93A and the Connecticut Unfair Trade Practices

Act (CUTPA) against all defendants (Counts VII and VIII).

Under each theory, the dereliction alleged was the same:

that the defendants committed these violations by jettisoning BPE's

claim in the PaineWebber arbitration in favor of the new one.

Because the arbitration produced $12.6 million, not the $88 million

sought under the discarded theory, BPE asked for the entire

4
The lawyers are Anthony R. Zelle's personal corporation and
two law firms: Zelle McDonough & Cohen, LLP, and Nystrom Beckman &
Paris LLP. These defendants represented the Iantosca defendants
when they were plaintiffs in the Cahaly litigation and claimants in
the PaineWebber arbitration. Zelle and his firm continue to
represent the Iantosca defendants in this appeal.

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difference of $75.4 million,5 along with punitive damages of $226.2

million.

In response to the defendants' motions, the district

court dismissed some claims but left others intact. See Bos. Prop.

Exch. Transfer Co. v. Iantosca, 686 F. Supp. 2d 138 (D. Mass.

2010). It dismissed all claims against the attorney defendants,

holding that the lawyers owed no duty to BPE in conducting the

PaineWebber arbitration because of a potential conflict of interest

between BPE and their clients, the Iantosca defendants, id. at 142-

43; and thus BPE had failed to state a claim against the attorney

defendants for violation of Chapter 93A or CUTPA, id. at 145. The

district court dismissed the CUTPA claim against the Iantosca

defendants, but declined to dismiss the others. Id. at 143-45.

Following the dismissal order, the attorney defendants

moved for entry of partial final judgment in their favor on all

claims against them, as allowed under Fed. R. Civ. P. 54(b). The

district court signed the bottom of the first page of their motion:

"Motion allowed," and the ensuing entry in the docket report read,

"Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting 46

Motion for Entry of Judgment under Rule 54(b) . . . (Entered:

5
Although the award rounds to $12.7 million, BPE consistently
refers to the award as $12.6 million. In its complaint, BPE also
stated that it sought $88 million in the PaineWebber arbitration,
rather than the actual $88.4 million. It used these amounts to
calculate its sought-after compensatory award of $75.4 million. We
will occasionally repeat these rounding errors when discussing
BPE's claims, but they have no impact on the substance of the case.

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06/10/2010)." The district court did not produce a separate

document signifying that a judgment had been entered, nor did the

court make any findings to support granting the motion.

Discovery continued for the remaining claims against the

Iantosca defendants, and both sides filed motions for summary

judgment. BPE's was denied, and the Iantosca defendants' was

granted as to all remaining claims. See Bos. Prop. Exch. Transfer

Co. v. Iantosca, 834 F. Supp. 2d 4 (D. Mass. 2011). The district

court held that the Superior Court's assignment order was not a

contract, and that it imposed no duty to prosecute BPE's

arbitration claim on its original theory. Id. at 8-9. BPE's

Chapter 93A claim was discarded for failure to show that the

defendants exceeded the scope of the assignment order or acted in

an unfair or deceptive manner. Id. at 10.

III.

Preceding the merits issues, there is a question about

our appellate jurisdiction over the attorney defendants. They

argue that BPE's appeal was untimely as to them because the

district court's endorsement of their Rule 54(b) motion ripened

into a final judgment for which the appeal period ran out before

BPE filed its notice of appeal. This objection is not well taken.

Under Fed. R. App. P. 4(a)(1)(A), a notice of appeal

generally must be filed within thirty days of the "entry of the

judgment or order appealed from." See also Budinich v. Becton

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Dickinson & Co., 486 U.S. 196, 203 (1988) (time limit is "mandatory

and jurisdictional"). Typically, under 28 U.S.C. § 1291, there is

an appealable judgment only when the district court issues an order

that disposes of all claims against all parties (with some

exceptions not pertinent here), "leav[ing] nothing for the court to

do but execute the judgment." Catlin v. United States, 324 U.S.

229, 233 (1945). Rule 54(b) of the Federal Rules of Civil

Procedure provides for an exception, however, under which a

district court can enter partial final judgment related to a subset

of the claims or parties involved, but "only if the court expressly

determines that there is no just reason for delay."

The attorney defendants say that the district court's

"endorsed order" signed on a page of their Rule 54(b) motion is a

final judgment as to the claims against them. And although a

judgment customarily requires entry of a separate document in the

civil docket, Fed. R. Civ. P. 58(a), under Fed. R. Civ. P.

58(c)(2)(B), judgment enters after 150 days have passed since a

judgment order was placed on the civil docket, even if no separate

document was filed. The attorney defendants therefore argue that

judgment in their favor entered 150 days after the endorsed order,

in November 2010, making this appeal untimely as to them, having

been filed more than a year later on December 12, 2011.

This argument misses the mark, because Rule 58(c) details

when a judgment has entered, if timing is the only question, but it

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does not address whether a judgment has entered, when the issue

implicates more than timing. The jurisdictional question here is

in the latter category, and to determine whether the endorsed order

was a judgment, it is Rule 54(b) that controls. By its terms the

endorsed order was not a judgment; thus, judgment in favor of the

attorney defendants did not become final until the district court's

summary judgment order disposed of the remaining claims.

Rule 54(b) reads this way:

Judgment on Multiple Claims or Involving
Multiple Parties. When an action presents
more than one claim for relief--whether as a
claim, counterclaim, crossclaim, or
third-party claim--or when multiple parties
are involved, the court may direct entry of a
final judgment as to one or more, but fewer
than all, claims or parties only if the court
expressly determines that there is no just
reason for delay. Otherwise, any order or
other decision, however designated, that
adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the
parties does not end the action as to any of
the claims or parties and may be revised at
any time before the entry of a judgment
adjudicating all the claims and all the
parties' rights and liabilities. (emphasis
added)

As the Supreme Court has put it, a district court

entering a Rule 54(b) judgment must go through two steps: it must

"determine that it is dealing with a 'final judgment'" that

provides an ultimate disposition on a "cognizable claim for

relief," and it must "determine whether there is any just reason

for delay." Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-

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8 (1980); accord Willhauck v. Halpin, 953 F.2d 689, 701 (1st Cir.

1991). This court has said that in most cases, some concise

findings "will likely be needed" to explain why there is no just

reason for delay, Spiegel v. Trs. of Tufts Coll., 843 F.2d 38, 43

n.4 (1st Cir. 1988), and in simply signing his name to the attorney

defendants' motion, the district judge made no such findings. That

would be the end of the matter, save for the fact that in at least

two cases we have relaxed the usual requirement of Rule 54(b)

findings in order to hear an appeal immediately in the interests of

justice. See Quinn v. City of Boston, 325 F.3d 18, 26-27 (1st Cir.

2003); Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39-40 (1st

Cir. 1991).

The attorney defendants here ask for similar relaxation

of the black-letter findings requirement, but careful attention to

their circumstances fails to show why they should have it. Rule

54(b) can prove pivotal to the question of appellate jurisdiction

in two situations. In the first, the district court disposes of a

subset of the claims, and the appellant attempts to appeal the

order immediately. In that situation, a valid Rule 54(b)

determination of no just reason for delay would provide the

appellate court with jurisdiction, and a tolerance for arguably

inadequate findings would do the same. By contrast, as in this

case, Rule 54(b) can also be invoked to deprive an appellate court

of jurisdiction, when a district court disposes of the subset and

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the losing party waits until the conclusion of litigation to

appeal. The appellee then argues that the appeal is untimely as to

the claims that were disposed of earlier because the appellant did

not appeal within 30 days of the purported Rule 54(b) order.

Our prior cases treating the requirement for a Rule 54(b)

finding as malleable have rested on conclusions that either the

public or predominant equitable interest weighed in favor of

adjudicating those appeals. See Quinn, 325 F.3d at 27 ("The most

important factor counseling in favor of allowing an immediate

appeal in this case is the public interest. . . . In short, the

nature of the issue calls out for immediate resolution.");

Feinstein, 942 F.2d at 40 ("A weighing of the factors relevant to

the use of Rule 54(b) tilts sharply in favor of allowing the

appeals to go forward." (citation omitted)).6 While we do not hold

that the rigor of Rule 54(b) is diminished only when the result

would be to entertain an immediate appeal, here we know of no

6
Other circuits likewise have occasionally relaxed the Rule
54(b) requirements when doing so would allow the court to hear an
immediate appeal. See, e.g., St. Paul Fire & Marine Ins. Co. v.
PepsiCo, Inc., 884 F.2d 688, 693 (2d Cir. 1989) ("[W]e have
recognized an exception to Rule 54(b)'s requirements where the
question of whether a Rule 54(b) certificate was improvidently
granted is a close one, [and therefore] we may decline to dismiss
the appeal chiefly because we believe that our disposition of the
appeal . . . will make possible a more expeditious and just result
for all parties." (second and third alterations in original)
(internal quotation marks omitted)); Akers v. Alvey, 338 F.3d 491,
495 (6th Cir. 2003) ("Because this case has already been briefed
and argued on appeal, however, the scales of judicial economy are
now tipped in favor of disposing of the appeal on the merits.").

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public interest or other equitable argument for relaxation of the

usual requirement of findings. For want of them, therefore, the

endorsed order did not qualify as a final judgment under Rule

54(b), the time did not run from the endorsement, and the appeal is

timely now as to all defendants.

IV.

There is one more issue enough in need of attention at

the threshold that we raise it ourselves, though we do not resolve

it. We are puzzled that this lawsuit ever ended up in federal

court or remained in the federal forum as long as it has. BPE

claims injury mainly under Massachusetts law. Its claim has no

merit if the defendants' action was authorized by the terms of the

state court assignment and that assignment was properly ordered

under state law. The parties were in litigation before the

Massachusetts state courts, and BPE has provided no convincing

explanation for its failure to seek resolution there of the scope

and propriety of the assignment order and the defendants'

conformity to it, instead waiting years to pursue these matters in

federal court.

Specifically, BPE argues that when the defendants amended

BPE's arbitration claim against PaineWebber, they violated the

assignment order and breached various state law duties incumbent on

them as assignees and their lawyers. At the time of the disputed

amendment in July 2005, BPE and the defendants in this lawsuit were

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engaged in the Cahaly litigation before the Massachusetts state

courts. BPE conceded at oral argument (as it surely had to) that

it could have complained at the time to the Superior Court judge

who issued the assignment order, Judge Botsford. Judge Botsford

could have elucidated the scope of the assignment order and the

state law duties that arose from that order. If she had ruled for

the present defendants, we would not be hearing argument now. If

she had ruled in BPE's favor, she would have been able to change

the course of the PaineWebber arbitration before it was too late.

But BPE did not complain to Judge Botsford. Instead, it passed up

any opportunity for a remedy in the Superior Court at the time of

the assignment order and at the time the claim was amended. And

after the arbitration panel produced an award that BPE thought was

insufficient, BPE waited nearly three years and then brought a new

lawsuit in federal court, turning on issues that could have been

appropriately resolved in the underlying state litigation but were

not pursued.

It is beside the point that Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938), requires federal courts exercising

diversity jurisdiction to pronounce on questions of state common

law, for the issue posed by this situation is not how questions of

state law should be answered, but when those questions should be

raised. When federal parties have already been before a state

court, and the federal plaintiff had and passed up an opportunity

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for the state court to resolve state law issues, why should its

failure to avail itself of state court remedies diligently not be

treated in federal court as a waiver of those claims?7

Although a strong argument thus exists that BPE waived

state law claims tantamount to this entire lawsuit, at no point in

the district court or on appeal have the defendants raised the

waiver issue or suggested that this dispute does not belong in

federal court. We broached the issue sua sponte at oral argument,

but counsel for each side seemed unprepared to offer developed

7
Other federal courts have declined to adjudicate claims in
analogous circumstances. For example, in Snyder v. Office of
Personnel Management, 136 F.3d 1474 (Fed. Cir. 1998), the Federal
Circuit rejected an argument that a Texas state court's divorce
decree was invalid and unconstitutional. The OPM had relied on the
decree to award a portion of the petitioner's civil service pension
to his ex-wife. Id. at 1477. The Federal Circuit declined to hear
the collateral challenge to the state court order because that
challenge should have been brought in state court. Id. at 1479;
accord Adler v. Office of Personnel Mgmt., 437 Fed. App'x 928, 931
(Fed. Cir. 2011) ("The proper forum for a constitutional challenge
to the Wisconsin Order is a Wisconsin state court.").
Similarly, in Allstate Insurance Co. v. West Virginia State
Bar, 233 F.3d 813 (4th Cir. 2000), the Fourth Circuit refused to
hear an attack on a state administrative proceeding that could have
been brought in the state court. A West Virginia state legal
disciplinary tribunal had ruled against Allstate for engaging in
the unauthorized practice of law, and Allstate subsequently brought
a federal complaint challenging the adverse ruling. Id. at 815.
The Fourth Circuit refused to hear a constitutional challenge that
Allstate failed to raise in the state court, noting, "[b]y failing
to raise his claims in state court a plaintiff may forfeit his
right to obtain review of the state court decision in any federal
court." Id. at 819 (citing D.C. Court of Appeals v. Feldman, 460
U.S. 462, 484 n.16 (1983)).
Though not perfectly on point, these cases provide some
support for the notion that once the parties were in state court,
it was only there that BPE had the opportunity to raise claims
related to the assignment order.

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argument on the matter. Because it was the defendants' burden to

raise this issue, and they have not done so, it may be unfair to

deny BPE's claim on a ground that was not stated until appellate

oral argument and to which BPE was not warned to respond or asked

to address after argument. We will therefore go no further here

than to caution counsel in future cases about the risk of resorting

to diversity jurisdiction as a substitute for a foregone

opportunity in underlying state court litigation between the same

parties.

V.

Addressing the merits, we start with BPE's appeal of the

summary judgment in favor of the Iantosca defendants, which we

examine de novo, viewing the facts and drawing all reasonable

inferences in favor of the nonmoving party (in this case, BPE),

Rared Manchester NH, LLC v. Rite Aid of N.H., Inc., 693 F.3d 48, 52

(1st Cir. 2012), and affirming only if "there is no genuine dispute

as to any material fact and the movant is entitled to judgment as

a matter of law," Fed. R. Civ. P. 56(a). But because we may affirm

on any basis apparent from the record, Hoyos v. Telecorp Commc'ns,

Inc., 488 F.3d 1, 5 (1st Cir. 2007), it is unnecessary to reach any

of the many difficult state law issues about the existence and

scope of various duties raised by BPE's claims on appeal.

As for the tort claims, we affirm summary judgment for

the defendants on all of them because BPE failed to provide any

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evidence to meet an essential element of each: that the defendants

caused it to suffer damages.8 Every one of these causes of action

required BPE to prove that the defendants' revision of the

arbitration claim left BPE worse off financially by some

ascertainable amount than would have been the case if BPE's own

theory of recovery had been pursued. Courts sometimes list the

requirement as a single element and sometimes list causation and

damages separately, but the substance is the same: the plaintiff

must show that the defendant's allegedly tortious conduct put the

plaintiff in a worse position than he would have been in but for

the misdeed.

BPE says that the defendants harmed it by substituting an

amended arbitration claim for its original, but the amended claim

produced an award of $12.6 million. Thus, to prove causation of

damages, BPE would need to show that it would have recovered more

than $12.6 million on its original theory. Cf. Fishman v. Brooks,

487 N.E.2d 1377, 1380 (Mass. 1986) ("A plaintiff who claims that

his attorney was negligent in the prosecution of a tort claim will

8
See Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891, 898-
99 (Mass. 2009) (negligence); Correia v. Fagan, 891 N.E.2d 227, 232
(Mass. 2008) (legal malpractice); Hanover Ins. Co. v. Sutton, 705
N.E.2d 279, 288 (Mass. App. Ct. 1999) (breach of fiduciary duty);
Weeks v. Harbor Nat'l Bank, 445 N.E.2d 605, 607 n.2 (Mass. 1983)
(Chapter 93A); Stevenson Lumber Company-Suffield, Inc. v. Chase
Assocs., Inc., 932 A.2d 401, 406 (Conn. 2007) (CUTPA); cf.
Ankiewicz v. Kinder, 563 N.E.2d 684, 686 (Mass. 1990) ("All torts
share the elements of duty, breach of that duty, and damages
arising from that breach.").

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prevail if he proves that he probably would have obtained a better

result had the attorney exercised adequate skill and care."). This

means that in an action based on alleged mishandling of a legal

damage claim, such as legal malpractice, it is essential to

establish the likelihood of a better result had the proceeding been

different from the defendant's chosen course.

Here, BPE failed to put forward any evidence that its

original arbitration theory against PaineWebber had any reasonable

chance of leading to a recovery of more than $12.6 million.

Indeed, the district court and appellate record is notable for the

total absence of any discussion by BPE of the merits of its

original claim, and the witness who spoke for BPE as much as

admitted that he had no evidentiary basis for such a contention, in

the following deposition testimony:

Q Do you have any facts or information that
would support the contention that the
arbitration panel would have awarded more than
it did to [BPE] if [the defendants] had not
amended [the] statement of claim?

A The only fact or information I have on that
is the fact that they didn't award more,
because the statement of claim was amended.

The Iantosca defendants clearly raised this issue in

their memorandum in support of summary judgment. It elicited

nothing more by way of response than the facts that the defendants

amended the arbitration claim, and the amended claim produced $8.7

million in compensatory damages, or $12.6 million in total. It

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should be unnecessary to point out that an award of $12.6 million

on the amended claim indicates nothing about what the claim as

originally stated would have produced.

This hole in BPE's evidentiary proffer would support the

judgment in any case, but is all the more striking owing to the

evidently fanciful character of BPE's original theory of tortious

conduct. In the Cahaly litigation, the judge and jury found that

BPE committed (inter alia) breach of contract, conversion, and

breach of fiduciary duty by speculating in technology stock options

with clients' escrowed funds. Yet BPE's original arbitration

position was that PaineWebber should be held liable for refusing to

let BPE continue its proven unlawful trading. Not only that, but

because PaineWebber financed the trading by providing BPE with

"large amounts of margin debt," PaineWebber would have had to

continue to put its own money at risk to support unlawful conduct

that was piling up rapid losses.9 A finding of liability in

9
Yet another reason exists to doubt the potential of BPE's
original theory. BPE claimed that if it had been allowed to trade
technology stock options for longer, it could have recovered its
losses in a subsequent stock market rally. But the rally proved
short-lived. We take judicial notice that from December 20, 2000,
through January 24, 2001, the NASDAQ Composite Index (a leading
index of technology stocks) rose from 2332.78 to 2859.15, a jump of
22.6%; yet the index then suffered a further plunge, dropping to
1638.8 on April 4, 2001; to 1423.19 on September 21, 2001; and to
1114.11 on October 9, 2002 (a drop of 61.0% from the January 2001
peak). See Yahoo! Finance, NASDAQ Composite Stock,
http://finance.yahoo.com/q/hp?s=%5EIXIC+Historical+Prices (last
visited May 31, 2013). BPE's original theory thus depended on the
assumption that it would have stopped trading after the brief
January 2001 rally, and so would have avoided the sustained decline

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response to this approach seems inconceivable to us, and the lack

of any evidence of damages seems as inevitable as it is fatal.

BPE's only remaining issue on the summary judgment for

the Iantosca defendants goes to the breach of contract claim, which

we address separately because of the Massachusetts rule that

causation of damages is not an element of breach of contract, as a

plaintiff is entitled to at least nominal damages upon proving a

breach. See Nathan v. Tremont Storage Warehouse, Inc., 102 N.E.2d

421, 423 (Mass. 1951). We affirm this portion of the district

court's judgment on the ground that the assignment order was not a

contract. Whereas the elements of a contract include voluntary

offer and acceptance, Quinn v. State Ethics Comm'n, 516 N.E.2d 124,

127 (Mass. 1987), BPE did not bargain for, offer, or accept the

assignment order, which was imposed on it over its strong

objection. The Massachusetts courts have instructively held that

a form listing probation conditions is not a contract because its

"enforceability . . . is derived not from the agreement of the

defendant, but from the force of the judge's order." Commonwealth

v. MacDonald, 736 N.E.2d 444, 447-48 (Mass. App. Ct. 2000); accord

Commonwealth v. MacDonald, 757 N.E.2d 725, 727 (Mass. 2001) ("The

probation form is not a contract."). By the same token, the

assignment order is not a contract.

that followed. This assumption of market clairvoyance is not what
the record suggests.

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 What we have said about the fatal flaw in the tort claims

also disposes of the appeal from the dismissal on a Rule 12(b)(6)

motion of all claims against the attorney defendants and the CUTPA

claim against the Iantosca defendants. Iantosca, 686 F. Supp. 2d

at 143-45. It is true that the district court's decision at the

stage of the proceedings before summary judgment relied on the

scope of duty owed by lawyers to non-clients and the meaning of the

Massachusetts and Connecticut consumer protection statutes. But

there is no need to get to these state law issues because even if

these claims had survived a motion to dismiss, they would have

failed on summary judgment owing to BPE's failure to provide

evidence of causation of damages. See note 8, above. BPE's theory

of damages was identical for the dismissed claims and for the

surviving ones (that it was harmed because it was prevented from

presenting an arbitration claim that would have won more than $12.6

million), and there is no reason to doubt that its failure to

proffer any supporting evidence would have proven equally fatal to

the claims dismissed. Neither at summary judgment nor in briefing

and argument here has BPE suggested that the dismissal as to the

attorney defendants affected access to any indication of damage

causation or discouraged the proffer of any such evidence. We

therefore affirm the district court's dismissal as to the attorney

defendants and the CUTPA claim on the ground that the claims

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affected would inevitably have failed at the summary judgment

stage.

Affirmed.

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