927 F.2d 1259 (1st Cir. 1991), 90-1838, Sheinkopf v. Stone

Docket Nº:90-1838.
Citation:927 F.2d 1259
Party Name:20 Fed.R.Serv.3d 32 Warren B. SHEINKOPF, Plaintiff, Appellant, v. John K.P. STONE III, etc., Defendant, Appellee.
Case Date:March 07, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1259

927 F.2d 1259 (1st Cir. 1991)

20 Fed.R.Serv.3d 32

Warren B. SHEINKOPF, Plaintiff, Appellant,


John K.P. STONE III, etc., Defendant, Appellee.

No. 90-1838.

United States Court of Appeals, First Circuit

March 7, 1991

Heard Jan. 10, 1991.

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Alexander H. Pratt, Jr., with whom Peabody & Arnold, Boston, Mass., was on brief, for plaintiff, appellant.

James R. DeGiacomo, with whom Susan J. Baronoff and Roche, Carens & DeGiacomo, Boston, Mass., were on brief, for defendant, appellee.

Before TORRUELLA and SELYA, Circuit Judges, and POLLAK [*], Senior District Judge.

SELYA, Circuit Judge.

This case requires us to consider whether an entrepreneurial attorney, who unwisely conducts personal business from his law office, thereby implicates his partners, leaving them (and their law firm) liable for investments gone sour. Because the record will not support a finding that an attorney-client relationship came into being, and there does not seem to be any

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other legal basis for a claim against the remaining partners or the firm, we affirm the entry of a summary judgment terminating the suit.


The seeds from which this Venus flytrap sprouted were planted in 1987 when the Omni Group (Omni), a joint venture, was formed to develop real estate in Massachusetts and New Hampshire. Plaintiff-appellant Warren B. Sheinkopf was invited to join the venture by David Saltiel, then a partner in the Boston law firm of Nutter, McLennen & Fish (Nutter). Although more copious details of the transaction will emerge during our subsequent discussion of the issues, it suffices to say for now that Saltiel was an organizer of, and principal in, Omni; that Sheinkopf enlisted; and that, when Omni's projects encountered dire financial straits, Saltiel entered personal bankruptcy. Faced not only with the loss of his original investment but also with incremental liability as a guarantor of several mortgages, Sheinkopf dove toward the deepest pocket in sight. Invoking federal question jurisdiction, 28 U.S.C. Sec. 1331, he brought suit in the United States District Court for the District of Massachusetts against appellee John K.P. Stone III, individually and as a representative of the Nutter partnership, 741 F.Supp. 323. 1

Appellant's amended verified complaint contained seven counts, including claims arising under various federal and state securities laws 2; claims for aiding and abetting; and state-law claims for breach of fiduciary duty and fraud. The exact structure of the complaint is less important for our purposes than its unifying theme; six of the seven counts were premised on the theory that Nutter was vicariously liable for Saltiel's actions with regard to appellant's investment in Omni. Each of these six counts ended with the identical averment: "The partners of [Nutter] are liable for such acts and omissions by Saltiel, who was acting as one of its partners." Hence, irrespective of other distinctions anent the theories of liability asserted, all six counts depended upon Sheinkopf's ability to prove that Saltiel, acting as a member of the Nutter firm, either in the course of an attorney-client relationship or on Nutter's behalf and with its authority (actual or apparent), committed the acts and omissions of which Sheinkopf complained. The lone exception was count IV, which alleged Nutter's direct liability under the securities laws as a "controlling person" of Omni.

The district court wrote a thoughtful rescript, granting defendant's motion for summary judgment across the board. The court found insufficient record evidence to support the claim of an attorney-client relationship between Saltiel and Sheinkopf. Since Sheinkopf had no other links to Nutter, the court found for the defendant as a matter of law. No separate discussion of count IV was attempted.


We begin our odyssey by revisiting sundry aspects of Fed.R.Civ.P. 56 which touch upon this appeal.

  1. The Rule 56(c) Standard.

    Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the movant avers "an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), the latter must adduce specific facts establishing the existence of at least one issue that is both "genuine" and "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Local 48,

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    United Brotherhood of Carpenters v. United Brotherhood of Carpenters, 920 F.2d 1047, 1050 (1st Cir.1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). The mere existence of a factual dispute, of course, is not enough to defeat summary judgment. The evidence relied upon must be "significantly probative" of specific facts, Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, which are "material" in the sense that the dispute over them necessarily "affect[s] the outcome of the suit." Id. at 248, 106 S.Ct. at 2510. In other words, the party opposing summary judgment must demonstrate that there are bona fide factual issues which "need to be resolved before the related legal issues can be decided." Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989); see also Local 48, 920 F.2d at 1050-51.

    This court's review of summary judgment is plenary. Garside, 895 F.2d at 48. In conducting our tamisage, we, like the district court, must view the evidentiary record in the light most hospitable to the nonmovant and must indulge all reasonable inferences in his favor. See, e.g., Mack, 871 F.2d at 181. We need not, however, give credence to "mere allegations," or draw inferences where they are implausible or not supported by "specific facts." See Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. By the same token, we cannot accept, in lieu of documented facts, conclusory assertions, Local 48, 920 F.2d at 1051, or wholly anticipatory "promise[s] to produce admissible evidence at trial," Garside, 895 F.2d at 49.

  2. The Standard for Obviating or Creating Fact Questions.

    Affidavits are the most conventional means of documenting facts for purposes of advancing, or opposing, summary judgment. See Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991); Fed.R.Civ.P. 56(c), (e)-(g). In this instance, defendant's Rule 56 motion was supported by two affidavits from David Saltiel. 3 Plaintiff's opposition, however, relied not upon one or more affidavits but upon the amended complaint, verified under oath by Sheinkopf.

    There is some uncertainty as to whether, or when, a verified complaint can serve in lieu of an affidavit for purposes of opposing a summary judgment motion. See 6-Pt. 2, J.W. Moore & J.C. Wicker, Moore's Federal Practice p 56.22 at 56-741 (suggesting that cases where a verified pleading will suffice are "rare"). This court has not heretofore had occasion to pass explicitly on the matter. We think the better rule is that a verified complaint ought to be treated as the functional equivalent of an affidavit to the extent that it satisfies the standards explicated in Rule 56(e) (in summary judgment milieu, affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein"). Accord Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir.1987); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir.1985).

    Applying this rule, we find that parts of Sheinkopf's verified complaint should be considered. The conclusory allegations do not pass muster, and hence, must be disregarded. See, e.g., Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 154 (5th Cir.1965). On the other hand, the factual averments of the complaint, to the extent demonstrated to come within Sheinkopf's personal knowledge, were fully

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    tantamount to a counter-affidavit, and hence, worthy of consideration. Because the record contains nothing of evidentiary significance beyond the Saltiel affidavits and the fact-specific segments of Sheinkopf's verified complaint, our decision must be premised on this limited factual record.

  3. The Rule 56(f) Standard.

    If a summary judgment opponent regards an adversary's motion as premature because needed discovery is incomplete, Rule 56(f) provides a means of relief. The rule states:

    Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

    Fed.R.Civ.P. 56(f).

    In this case, on the very day that he responded to the motion for summary judgment, the appellant served a request for admissions pursuant to Fed.R.Civ.P. 36. The Rule 36 request was concerned exclusively with a very narrow point: the existence and extent of bills rendered by Nutter to certain limited partnerships affiliated with, or somehow related to, Omni. At that time, the appellant also filed a conditional Rule 56(f) motion, buttressed by an affidavit, asking additional time for a specific purpose: receipt of the appellee's answers to the request for admissions or, if a dispute ensued, time to obtain the same information through other discovery devices. We think it is quite important to note that the Rule 56(f) motion was conditional. Sheinkopf asked for the extra time only "if the Court deems the matters covered by the Request to be...

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