Douglas v. Hirshon

63 F.4th 49

• Court: Court of Appeals for the First Circuit
• Decided: March 21, 2023
• Docket: 22-1483
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1483

JOEL DOUGLAS; STEVEN FOWLER; JAMES LEWIS,

Plaintiffs, Appellants,

v.

DAVID HIRSHON; LOSU LLC,

Defendants, Appellees,

BIRCH POINT STORAGE LLC; SCOTT LALUMIERE; MICHAEL LYDEN; SHAWN LYDEN; RUSSELL OAKES; WAYNE LEWIS; ANDRE BELLUCCI; DAVID JONES; ROBERT BURGESS; ANDROSCOGGIN SAVINGS BANK; BANGOR SAVINGS BANK; CAMDEN NATIONAL BANK; DAVID CLARKE; MILK STREET CAPITAL LLC; MECAP, LLC, d/b/a Milk Street Capital LLC; COASTAL REALTY CAPITAL, LLC, d/b/a Maine Capital Group, LLC; MAINE CAPITAL GROUP, LLC; LH HOUSING, LLC; TTJR, LLC; F.O. BAILEY REAL ESTATE; BLR CAPITAL, LLC; ERIC HOLSAPPLE; MACHIAS SAVINGS BANK; JOHN DOE NUMBER I; JOHN DOE NUMBER II; JOHN DOE NUMBER III; JOHN DOE NUMBER IV,

Defendants.

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

[Hon. Jon D. Levy, U.S. District Judge]

Before

Gelpí, Lynch, and Thompson, Circuit Judges.

Robert C. Andrews for appellants. Marshall J. Tinkle, with whom Thompson, MacColl & Bass, LLC, P.A. was on brief, for appellees.

March 21, 2023 LYNCH, Circuit Judge. Joel Douglas, Steven Fowler, and

James Lewis sued twenty-six defendants, alleging several

interrelated schemes to defraud the plaintiffs of real estate in

Maine. Among other claims, the complaint asserts that, in

connection with these schemes, a subset of the defendants

participated in a conspiracy in violation of the Racketeer

Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C.

§§ 1961-1968, and that this conspiracy injured the plaintiffs.

The district court dismissed the RICO conspiracy claim

against two of the defendants, David Hirshon and LOSU, LLC

("LOSU"), and denied a motion from the plaintiffs seeking limited

discovery from Hirshon. See Douglas v. Lalumiere, No. 20-cv-

00227, 2021 WL 4470399, at *4-5 (D. Me. Sept. 29, 2021). The

plaintiffs appeal, contending that the district court erred in

(1) concluding that the complaint fails to state a RICO claim

against Hirshon and LOSU, (2) declining to consider certain

materials outside the complaint in ruling on the motion to dismiss,

and (3) denying the plaintiffs discovery. We find no error and

affirm the district court's well-reasoned decision.

I.

Because this appeal follows a dismissal for failure to

state a claim, "we accept as true all well-pleaded facts alleged

in the complaint and draw all reasonable inferences therefrom in

the pleader's favor." Roe v. Lynch, 997 F.3d 80, 82 (1st Cir.

- 3 - 2021) (quoting Lee v. Conagra Brands, Inc., 958 F.3d 70, 74 (1st

Cir. 2020)).

The plaintiffs filed the original complaint in this

action, which included thirteen counts against twenty-four

defendants, on June 24, 2020, in the U.S. District Court for the

District of Maine. Neither Hirshon nor LOSU was named in this

complaint. The plaintiffs filed the operative amended complaint

("the complaint") on September 15, 2020. In addition to adding

new allegations, claims, and exhibits, this amended pleading

introduced Hirshon and LOSU as defendants on two counts: Count IV

(a RICO conspiracy claim) and Count XVII (a state law unjust

enrichment claim).1 The RICO claim alleges that Hirshon, LOSU,

and other defendants conspired to violate 18 U.S.C. § 1962(a) by

investing funds obtained through alleged fraud schemes into

efforts to defraud additional victims. The unjust enrichment claim

asserts that Hirshon, LOSU, and other defendants unjustly

benefited by defrauding Douglas and Fowler.

The complaint alleges three interrelated fraudulent

schemes to deprive the plaintiffs and others of real estate in

1 The complaint does not actually list LOSU among the defendants for Count IV, but the allegations included in support of the claim do refer to LOSU. The district court construed the complaint as seeking to bring a claim against LOSU, see Douglas, 2021 WL 4470399, at *3 n.3, and, in the interest of completeness, we do so as well.

- 4 - Maine.2 At least the first two of these schemes were allegedly

spearheaded by defendant Scott Lalumiere.

As the district court summarized, in the first alleged

scheme,

Lalumiere, funded by various banks and private lenders, fraudulently induced several vulnerable individuals, including [p]laintiffs [Douglas and Fowler], who lacked access to conventional credit, to enter into unfavorable lease/buy-back agreements. Under the terms of the agreements, the title of the victim's property would be transferred to a corporate entity controlled by Lalumiere with the victim, as the lessee, retaining a purchase option. The Lalumiere-controlled entity would subsequently mortgage the property to banks and private lenders, and, when the entity defaulted on its loan, the mortgagees foreclosed on the property, frustrating the victim's option to purchase.

Douglas, 2021 WL 4470399, at *1. Properties allegedly targeted in

this scheme include 75 Queen Street, Gorham, and 661 Allen Avenue,

Portland, at the time owned by plaintiffs Douglas and Fowler,

respectively, as well as 36 Settler Road, South Portland, then

owned by a nonplaintiff, Christina Davis. The complaint asserts

that the participants in this scheme repeatedly used the mail or

wires to facilitate the fraud.

In the second alleged scheme, Fowler agreed with

Lalumiere that Fowler would perform renovations at several

2 In characterizing the complaint's allegations, we do not express any view as to whether the complaint states a claim against any defendant other than Hirshon or LOSU.

- 5 - properties at a discounted rate and in exchange be given the option

to purchase the properties after completing the work and the

authority to rent out the properties in the meantime. Lalumiere

then defaulted on the properties' mortgages, preventing Fowler

from exercising his purchase option.

In the third alleged scheme, multiple defendants agreed

to pay off a defaulted mortgage on a property owned by Lewis and

to lend him funds for improvements in exchange for his transferring

the title to the property to a corporation and making certain

payments. Following the title transfer, those defendants refused

to make the promised loans and foreclosed on the property.

The complaint's description of these schemes says very

little about Hirshon or LOSU. Indeed, in their principal brief,

the plaintiffs describe as "accurate[]" the district court's

statement that "[t]he [c]omplaint contains scant details regarding

Hirshon's and LOSU's participation in Lalumiere's schemes." Id.

at *2. The complaint alleges that Hirshon "is a person residing

in Freeport[,] Maine," and LOSU "is a Maine corporation doing

business in the State of Maine," but does not otherwise provide

any background information on Hirshon or LOSU. For instance, the

complaint does not even identify Hirshon's occupation or LOSU's

line of business. With respect to the RICO count, the complaint

alleges that Hirshon and LOSU "knew about the fraud committed by

the [RICO e]nterprise because of their participation in the

- 6 - transactions for 661 Allen Avenue and 75 Queen Street," and that

they, alongside other defendants, "realized the proceeds" of the

schemes. In addition, the complaint includes as an attachment an

affidavit dated January 27, 2020, sworn out by Davis (the

nonplaintiff victim of the alleged fraud involving 36 Settler Road)

and recorded with the county registry of deeds, regarding the

transactions involving 36 Settler Road. In the affidavit, Davis

states "[o]n information and belief" that, after Davis entered a

lease/buy-back agreement with a Lalumiere-controlled corporation

in 2012, the corporation granted a mortgage on the property to

LOSU in March 2019, and that "LOSU . . . had actual notice" of

Davis's lease/buy-back agreement when it accepted the mortgage.

Outside of these statements, the complaint does not describe the

nature, timing, or extent of Hirshon's or LOSU's alleged

participation in the schemes.3

Various subgroups of defendants filed separate motions

to dismiss for failure to state a claim under Federal Rule of Civil

Procedure ("Rule") 12(b)(6). Hirshon and LOSU jointly filed such

a motion on November 23, 2020, arguing, inter alia, that the

3 A paragraph supporting the unjust enrichment claim alleges: "LOSU[,] . . . Hirshon, . . . and [other defendants] extraction [sic] of equity from the homes at 661 Allen Avenue and 57 [sic] Queen Street when . . . Douglas and . . . Fowler paid the underlying obligations on the property unjustly enriched the organization . . . ." On appeal, the plaintiffs do not cite this allegation or argue that it clarifies Hirshon's or LOSU's alleged participation in the schemes for purposes of the RICO claim.

- 7 - complaint fails to plausibly allege that they knowingly joined any

RICO conspiracy or that they received any benefit from the

plaintiffs, as necessary to state an unjust enrichment claim.

The plaintiffs filed a memorandum in opposition to the

motion to dismiss that relied heavily on a set of attached

documents not referenced in or attached to the complaint. They

never moved to amend the complaint to incorporate these documents.

On the same day, the plaintiffs also filed a motion seeking limited

discovery from Hirshon before the court ruled on the motion to

dismiss, asserting that such discovery would allow them to cure

any deficiencies in their pleading. Hirshon opposed this motion.4

The district court granted the motion to dismiss and

denied the motion for limited discovery in a written opinion issued

September 29, 2021. See Douglas, 2021 WL 4470399, at *4-5. It

reasoned that the complaint fails to plausibly allege either that

Hirshon or LOSU knowingly joined a RICO conspiracy or that the

plaintiffs conferred any benefit on Hirshon or LOSU, as necessary

to state a claim for unjust enrichment under Maine law. See id.

at *3-4, *4 n.5. The court also concluded that the complaint's

4 A magistrate judge denied the discovery motion without prejudice and recommended that the district court consider it alongside the motion to dismiss. After further briefing on the issue from both sides, the district court construed the magistrate judge's order denying the motion as "a deferral of action on the motion," and addressed the merits of the discovery and dismissal motions together. Douglas, 2021 WL 4470399, at *1 n.2.

- 8 - allegations fall too far short of the plausibility and

particularity requirements of Rules 8 and 9(b) to justify any

discovery under this court's precedents. See id. at *5.

Hirshon and LOSU then moved for final judgment on the

plaintiffs' claims against them under Rule 54(b). The district

court granted the motion,5 see Douglas v. Lalumiere, No. 20-cv-

00227, 2022 WL 2047698, at *3 (D. Me. June 7, 2022), and this

timely appeal followed.

II.

The plaintiffs argue that the district court erred in

(1) holding that the complaint fails to plausibly allege that

Hirshon or LOSU knowingly joined a RICO conspiracy, (2) declining

to consider documents outside the complaint in ruling on the motion

to dismiss the RICO claim, and (3) denying the motion for limited

discovery with respect to the RICO allegations.6 We address, and

reject, each argument in turn.

5 The plaintiffs opposed the motion for final judgment, but on appeal they do not mount any challenge to the district court's decision to grant the motion independent of their challenges to its decision to deny discovery and dismiss their claims.

6 The plaintiffs do not address their unjust enrichment claim on appeal, thereby waiving any argument with respect to that count. See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

- 9 - A.

We review a district court's grant of a motion to dismiss

for failure to state a claim de novo. E.g., Legal Sea Foods, LLC

v. Strathmore Ins. Co., 36 F.4th 29, 34 (1st Cir. 2022). The

complaint "must contain sufficient factual matter, accepted as

true, to 'state a claim to relief that is plausible on its face.'"

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Id. Although "[w]e 'accept

as true the complaint's well-pleaded factual allegations' and

'draw all reasonable inferences in favor of the non-moving party,'"

Cheng v. Neumann, 51 F.4th 438, 443 (1st Cir. 2022) (quoting McKee

v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017)), we do not credit

"'conclusory legal allegations' [or] factual allegations that are

'too meager, vague, or conclusory to remove the possibility of

relief from the realm of mere conjecture,'" Legal Sea Foods, 36

F.4th at 33 (citation omitted) (first quoting Cardigan Mountain

Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015); and then

quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en

banc)).7

7 The district court reasoned that, because the plaintiffs' RICO claims are based on alleged predicate acts of

- 10 - The criminal RICO statute, 18 U.S.C. § 1962, "prohibits

certain conduct involving a 'pattern of racketeering activity.'"

Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453 (2006) (quoting

18 U.S.C. § 1962). Racketeering activity is defined "to include

a host of so-called predicate acts," including acts that would be

indictable as mail or wire fraud. Bridge v. Phoenix Bond & Indem.

Co., 553 U.S. 639, 647 (2008); see 18 U.S.C. § 1961(1) (defining

"racketeering activity"); id. §§ 1341, 1343 (defining mail and

wire fraud). Subsection (a) of § 1962 provides:

It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity . . . to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

18 U.S.C. § 1962(a). Subsection (d) makes it "unlawful for any

person to conspire to violate any of the provisions of subsection

(a)." Id. § 1962(d). In order "[t]o prove a RICO

conspiracy . . . , the [plaintiff] must show that 'the defendant

mail and wire fraud, their complaint "must [also] satisfy the [heightened] particularity requirements of Rule 9(b)." Douglas, 2021 WL 4470399, at *3 (quoting Ahmed v. Rosenblatt, 118 F.3d 886, 889 (1st Cir. 1997)). Under that standard, the complaint "must state the time, place and content of the alleged mail and wire communications perpetrating that fraud." Ahmed, 118 F.3d at 889. Because the complaint fails to meet even the ordinary plausibility standard, we need not separately address issues related to Rule 9.

- 11 - knowingly joined the conspiracy, agreeing with one or more

coconspirators to further [the] endeavor, which, if completed,

would satisfy all the elements of a substantive [RICO]

offense.'" United States v. Velazquez-Fontanez, 6 F.4th 205, 212

(1st Cir. 2021) (third and fourth alterations in original)

(internal quotation marks omitted) (quoting United States v.

Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019)). The RICO

statute's civil component, 18 U.S.C. § 1964, provides a cause of

action to "[a]ny person injured in his business or property by

reason of a violation of [the criminal RICO provisions]." 18

U.S.C. § 1964(c).

Count IV of the complaint asserts that Hirshon and LOSU,

together with numerous other defendants, participated in a RICO

conspiracy to violate § 1962(a) by investing funds obtained through

the alleged fraud schemes into efforts to defraud additional

victims. To state a claim on this count with respect to Hirshon

and LOSU, the complaint must plausibly allege, among other things,

that they knowingly joined the purported RICO conspiracy. See

Velazquez-Fontanez, 6 F.4th at 212. We agree with the district

court that the complaint fails to do so.

As the district court observed, the complaint "contains

scant details regarding Hirshon's and LOSU's participation" in the

alleged conspiracy. Douglas, 2021 WL 4470399, at *2. On appeal,

the plaintiffs direct our attention essentially to three

- 12 - statements in the complaint or its exhibits. First, in a paragraph

describing the alleged "role[s]" of various defendants in the

purported conspiracy, the complaint states that "LOSU LLC, David

Hirshon, [and other defendants] realized the proceeds [of the real

estate transactions]." Second, the complaint states that Hirshon

and LOSU "knew about the fraud committed by the [RICO e]nterprise

because of their participation in the transactions for 661 Allen

Avenue and 75 Queen Street." Third, the Davis affidavit attached

to the complaint states "[o]n information and belief" that a

corporation controlled by Lalumiere granted a mortgage on the

property at 36 Settler Road to LOSU in March 2019 and that

"LOSU . . . had actual notice" of Davis's lease/buy-back agreement

with that corporation at that time.

The conclusory assertion that Hirshon and LOSU "knew

about the fraud . . . because of their participation in the

transactions for 661 Allen Avenue and 75 Queen Street" is "too

meager, vague, or conclusory to remove the possibility of relief

from the realm of mere conjecture." Legal Sea Foods, 36 F.4th at

33 (quoting Tambone, 597 F.3d at 442). The complaint alleges a

complex series of transactions, many of which -- such as a

titleholder's taking out a mortgage on a property -- are

unremarkable. No inference can reasonably be drawn from the mere

- 13 - fact of these transactions that those involved knowingly

participated in fraud.8

Stripping out this conclusory statement, the remaining

allegations against Hirshon and LOSU assert that they in some

unspecified way participated in transactions involving 661 Allen

Avenue and 75 Queen Street; that they in some unspecified way

benefitted financially from Lalumiere's transactions; and that

LOSU acquired a mortgage on a different property, 36 Settler Road,

from a corporation controlled by Lalumiere while having notice

that the corporation had entered into a lease/buy-back agreement

with Davis. These sparse allegations fall well short of "plausibly

narrat[ing] a claim for relief." Schatz v. Republican State

Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). We cannot "draw

[a] reasonable inference that the defendant[s are] liable for the

misconduct alleged." Iqbal, 556 U.S. at 678. None of the

allegations is remotely inconsistent with the conclusion that

Hirshon and LOSU are ordinary lenders or providers of services

8 The plaintiffs contend that it was sufficient for them simply to allege knowledge on the part of Hirshon and LOSU without supporting facts because Rule 9 allows plaintiffs to plead "knowledge . . . generally." But the Supreme Court has made clear that "'generally' is a relative term," and that, "[i]n the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake." Iqbal, 556 U.S. at 686 (quoting Fed. R. Civ. P. 9(b)). It "excuses a party from pleading [knowledge] under an elevated pleading standard," but it does not allow a party to rest on conclusory allegations that do not satisfy the basic plausibility standard. Id.; see id. at 686-87; Schatz v. Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2012).

- 14 - related to real estate transactions that operate in the area of

Maine where the alleged fraud took place. "The plausibility

standard is not akin to a 'probability requirement,' but it asks

for more than a sheer possibility that a defendant has acted

unlawfully." Id. (quoting Twombly, 550 U.S. at 556). The

plaintiffs have not met this standard.

Because the plaintiffs' allegations do not support a

reasonable inference that Hirshon or LOSU knowingly joined the

alleged RICO conspiracy, the district court properly concluded

that the complaint fails to state a claim against these defendants.

B.

The plaintiffs argue that, even if the complaint itself

fails to state a claim, the district court erred by refusing, when

ruling on Hirshon and LOSU's motion to dismiss, to consider

additional documents attached to the plaintiffs' memorandum

opposing the motion. They contend that these attachments -- which

were not attached to or referenced in the complaint, and which

include, for example, mortgage documents related to the properties

involved in the alleged fraud schemes, ostensibly retrieved from

county registries of deeds -- fill any gaps in the complaint's

allegations. The district court refused to consider these

documents because they were not included in the plaintiffs'

complaint. Douglas, 2021 WL 4470399, at *4.

- 15 - In ruling on a motion to dismiss for failure to state a

claim, "a court ordinarily may only consider facts alleged in the

complaint and exhibits attached thereto, or else convert the motion

into one for summary judgment."9 Freeman v. Town of Hudson, 714

F.3d 29, 35-36 (1st Cir. 2013) (citation omitted). "Under certain

'narrow exceptions'" -- including for "documents the authenticity

of which are not disputed by the parties" and "official public

records" -- "some extrinsic documents may be considered without

converting a motion to dismiss into a motion for summary judgment."

Id. at 36 (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.

1993)). The plaintiffs argue that the attachments to their

memorandum opposing the motion to dismiss fall into these "narrow

exceptions."

This court has not decided the standard of review

applicable to a district court's refusal to consider documents

external to a complaint in ruling on a Rule 12(b)(6) motion, see

id. at 36 n.5 (declining to decide whether review is de novo or

for abuse of discretion); Lab. Rels. Div. of Constr. Indus. of

Mass., Inc. v. Healey, 844 F.3d 318, 331 (1st Cir. 2016) (same),

but the plaintiffs concede that an abuse of discretion standard

applies, so we proceed on that assumption, cf. Davis v. HSBC Bank

9 The plaintiffs do not argue that the district court should have converted the motion into one for summary judgment in order to consider the attachments.

- 16 - Nev., N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (holding that a

"district court's decision to incorporate by reference documents

into [a] complaint shall be reviewed for an abuse of discretion").

We note also that the plaintiffs do not develop any argument or

cite any authority holding that considering external documents is

mandatory -- rather than within the district court's

discretion -- if those documents fall into one of the "narrow

exceptions" the plaintiffs invoke. Cf., e.g., Healey, 844 F.3d at

331 (explaining that a court "may" consider external documents

within the exceptions); Freeman, 714 F.3d at 36 (same); cf. also

Davis, 691 F.3d at 1159 ("Our relevant case law has recognized

consistently that [a] district court may, but is not required to

incorporate documents by reference.").

We see no abuse of discretion in the district court's

refusal to consider the attachments. The plaintiffs did not

articulate to the district court any reason why it could or should

consider the attachments in ruling on the motion to dismiss. Cf.

Diulus v. Am. Express Travel Related Servs. Co., 823 F. App'x 843,

847 (11th Cir. 2020) (unpublished decision) (finding no abuse of

discretion where district court did not take judicial notice of

materials sua sponte); River Farm Realty Tr. v. Farm Fam. Cas.

Ins. Co., 943 F.3d 27, 41 n.21 (1st Cir. 2019) (treating argument

not made to district court as waived). The plaintiffs do not

dispute Hirshon and LOSU's observation that, in litigating the

- 17 - motion before the district court, they did not cite the exceptions

on which they now rely. Their opposition memorandum simply noted

that various exhibits were attached, and cited those attachments

without any discussion of why doing so would be permissible.10

Precedent emphasizes that the exceptions the plaintiffs seek to

invoke are "narrow," and the district court did not abuse its

discretion by declining to maneuver the attachments into those

exceptions without assistance from the plaintiffs. Freeman, 714

F.3d at 36 (quoting Watterson, 987 F.2d at 3); see id. at 37

(treating as waived any argument that a document fit into the

"narrow exceptions" because the party advancing the document

failed to make such an argument).

Further, the plaintiffs have offered no persuasive

reason why the attachments could not have been submitted with the

complaint or included in a proposed amended complaint. See

Bates v. Green Farms Condo. Ass'n, 958 F.3d 470, 483 (6th Cir.

2020) ("If plaintiffs believe that they need to supplement their

complaint with additional facts to withstand . . . a motion to

10 The district court heard oral argument on the motion to dismiss; the record does not contain any transcript of this argument, but the plaintiffs do not claim to have raised the exceptions they now invoke during that proceeding. The plaintiffs did assert in a footnote in their memorandum opposing Hirshon and LOSU's motion for final judgment that the district court could have considered one of the attachments as a public record. But this memorandum was filed after the district court ruled on the motion to dismiss, and the plaintiffs did not move the district court to reconsider the dismissal.

- 18 - dismiss[], they have a readily available tool: a motion to amend

the complaint under Rule 15."); Zomolosky v. Kullman, 640 F. App'x

212, 218 n.2 (3d Cir. 2016) (unpublished decision) (finding no

abuse of discretion where district court declined to take judicial

notice of SEC filings that plaintiff had been "free to include" in

complaint). The plaintiffs respond that "[t]he [complaint] was

lengthy and already had numerous attachments without trying to

anticipate how it might be defended." But while a complaint need

not anticipate every possible defense a defendant might raise,

see, e.g., Jones v. Bock, 549 U.S. 199, 211-12 (2007), it "must

contain sufficient factual matter, accepted as true, to 'state a

claim to relief that is plausible on its face'" as to each

defendant, Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

570). The district court merely held the plaintiffs to that

burden, and we follow its lead. See Trans-Spec Truck Serv., Inc.

v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (explaining

that, in reviewing a dismissal under Rule 12(b)(6), this court

"review[s] only those documents actually considered by the

district court . . . unless we are persuaded that [the district

court] erred in declining to consider the proffered documents").

C.

In the end, this appeal turns on whether the district

court abused its discretion by denying "limited discovery" against

Hirshon before dismissing the plaintiffs' claims. This court has

- 19 - identified two circumstances in which a district court considering

a motion to dismiss under Rule 12(b)(6) might appropriately permit

limited discovery. This case does not fall into either category.

First, a line of cases beginning with New England Data

Services, Inc. v. Becher, 829 F.2d 286 (1st Cir. 1987), recognizes

that, where a complaint "specifically set[s] out a general scheme

to defraud" but (1) the complaint falls short of pleading a claim

with the heightened particularity required by Rule 9(b) and (2)

the missing information is "peculiarly within [the] defendants'

knowledge," a district court may have discretion to allow the

plaintiffs limited discovery to uncover the missing details. Id.

at 292; see id. at 290-92. In Becher, for example, the complaint,

which alleged a RICO claim based on predicate acts of mail and

wire fraud, was deficient only because it did not set forth in

detail the "time, place[,] and content" of the underlying mailings

or wirings. Id. at 291; see id. at 290-92; see also N. Bridge

Assocs., Inc. v. Boldt, 274 F.3d 38, 43-44 (1st Cir. 2001)

(discussing Becher). This court has never applied Becher in a

case, like this one, where the complaint fell short not only of

Rule 9(b)'s heightened particularity requirements but also of the

ordinary plausibility standard. See Home Orthopedics Corp. v.

Rodríguez, 781 F.3d 521, 532 (1st Cir. 2015) (rejecting application

of Becher where complaint did not meet plausibility standard);

Boldt, 274 F.3d at 43-44 (similar). Because "it is not simply the

- 20 - details [the plaintiffs] lack, but the substance of a RICO claim,"

Boldt, 274 F.3d at 44, Becher discovery is unwarranted.

Second, this court held in Menard v. CSX Transportation,

Inc., 698 F.3d 40 (1st Cir. 2012), that limited discovery may be

appropriate where "a plausible claim may be indicated [by the

plaintiff's allegations,] . . . 'information needed [to flesh out

the allegations before trial] may be in the control of [the]

defendants,'" and "modest discovery may provide the missing link."

Id. at 45 (third alteration in original) (quoting Pruell v. Caritas

Christi, 678 F.3d 10, 15 (1st Cir. 2012)). The plaintiff in Menard

alleged that he had been injured twice while trespassing in a

railyard operated by the defendant -- first by having his foot

crushed by a moving segment of track, then by being hit by a

train -- and that the defendant's employees had failed to prevent

the second injury despite being aware of the first. See id. at

41-42, 44. This court explained that, although the plaintiff had

not provided detailed allegations about the defendant's employees'

activities, "one might not expect precise recollection from a man

badly injured by a switched track and shortly thereafter hit and

dragged under [a] train." Id. at 45. Critically, the plaintiff

had made general allegations about those employees on "information

and belief" and described his own actions, and the defendant was

better positioned to supply the missing information than was the

plaintiff. Id. at 41-42, 44-45.

- 21 - Later cases have read Menard as indicating that "'some

latitude may be appropriate' in applying the plausibility

standard" and authorizing discovery where "a material part of the

information needed is likely to be within the defendant's control,"

and that "the plausibility inquiry properly takes into account

whether discovery can reasonably be expected to fill any holes in

the pleader's case." García-Catalán v. United States, 734 F.3d

100, 104 (1st Cir. 2013) (quoting Menard, 698 F.3d at 45); accord

Saldivar v. Racine, 818 F.3d 14, 23 (1st Cir. 2016).

The complaint in this case falls well short of justifying

discovery under Menard. As explained above, the complaint does

not come close to plausibly alleging that Hirshon or LOSU knowingly

joined a RICO conspiracy. It supplies virtually no information

about the nature, timing, or extent of their alleged participation

in the conspiracy. Nor does the complaint give shape to its claims

through allegations made on information and belief, as in Menard.

See 698 F.3d at 44-45; see also Saldivar, 818 F.3d at 23

(discussing Menard). Given the near-total lack of information, we

cannot say that "a plausible claim may be indicated" by the

complaint or that there is information likely to be under the

defendants' control that would "provide the missing link." Menard,

698 F.3d at 45. As the district court correctly concluded, there

is simply too wide a "gap between the allegations in the complaint

- 22 - and a plausible claim" for discovery to be appropriate. Saldivar,

818 F.3d at 23.

We reject the plaintiffs' contention that, in

considering the motion for limited discovery, the district court

should have looked beyond the complaint and considered the

attachments to the memorandum opposing the motion to dismiss.

Cases following both Becher and Menard have focused specifically

on the allegations contained in the complaint (or a proposed

amended complaint). See, e.g., Boldt, 274 F.3d at 44 (examining

"allegations" in "complaint" in holding Becher discovery

unwarranted); Becher, 829 F.2d at 292 (focusing on "the strength

of [the] plaintiff's allegations" in the complaint); Parker v.

Landry, 935 F.3d 9, 18-19 (1st Cir. 2019) (citing Menard, 698 F.3d

at 45) (assessing whether allegations in proposed amended

complaint were sufficiently plausible to permit discovery);

García-Catalán, 734 F.3d at 104-05 (examining "what the

[plaintiff] . . . set forth in her complaint" when applying

Menard). This focus makes good sense, as both Becher and Menard

concerned the plaintiff's compliance with pleading requirements.

See Becher, 829 F.2d at 292 (examining compliance with Rule 9(b));

Menard, 698 F.3d at 45 (examining compliance with plausibility

standard). Nor does this approach impose an unreasonable burden

on the plaintiffs, who were free to seek to amend their complaint

to include the attachments but failed to do so. Cf. Bates, 958

- 23 - F.3d at 483 (explaining that a plaintiff can "readily" supplement

a complaint through a motion to amend). The district court

properly considered the material before it with respect to the

motion to dismiss when ruling on the plaintiffs' discovery motion.

We also reject the plaintiffs' argument that a plaintiff

confronted with a Rule 12(b)(6) motion is entitled to discovery

unless the record shows that "there is no means of pleading the

claim well." On the contrary, this court has emphasized that the

burden is on the plaintiff to "allege[] 'enough fact[s] to raise

a reasonable expectation that discovery will reveal evidence' of

[an] actionable [claim]." Parker, 935 F.3d at 18 (second

alteration in original) (quoting Twombly, 550 U.S. at 556); see

also Boldt, 274 F.3d at 44 (explaining that Becher discovery is

appropriate only where the complaint's allegations "render[] it

likely" that discovery would uncover necessary details). This

burden reflects the fact that "[o]ne of the main goals of the

plausibility standard is the avoidance of unnecessary discovery."

Ríos-Campbell v. U.S. Dep't of Com., 927 F.3d 21, 26 (1st Cir.

2019) (quoting Grajales v. P.R. Ports Auth., 682 F.3d 40, 46 (1st

Cir. 2012)); see Schatz, 669 F.3d at 56. The plaintiffs' approach

would undermine that goal by requiring discovery in a broad set of

cases where the pleadings offer no reason to think discovery is

worthwhile.

- 24 - The district court properly denied the plaintiffs'

motion for limited discovery.

III.

For the foregoing reasons, we affirm.

- 25 -