O'Hearn v. Merrill Lynch ( 1996 )

USCA1 Opinion

        September 23, 1996      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 96-1552



                                   JOHN J. O'HEARN,



                                Plaintiff, Appellant,



                                          v.



                    MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC.,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            John J. O'Hearn, Jr. on brief pro se.
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            Thomas Paul  Gorman, Bryan  G. Killian  and Sherin  and Lodgen  on
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        brief for appellee.





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                      Per Curiam.    Plaintiff-appellant O'Hearn  appeals
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            from   the  dismissal  of   his  amended  complaint  alleging



            discrimination on the basis  of religion and sex, as  well as



            negligent,  intentional, and  business torts.   Reviewing the



            dismissal de novo, and  considering the parties' arguments on
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            appeal, we  find no substantial  reason to disagree  with the



            district court's conclusion, under  Fed. R. Civ. P. 12(b)(6),



            that  the  amended  complaint   failed  to  state  a  legally



            cognizable claim.



                      As  to appellant's assignments of procedural error,



            upon  examination of the record  we conclude:   (1) The court



            did not  abuse its discretion by  denying appellant's motions



            for  an appointment  of counsel;  (2) appellant  was afforded



            sufficient  opportunities to  amend  the  complaint; (3)  the



            court  did not  err  in resolving  the  Rule 12(b)(6)  motion



            without  an oral  hearing, as  appellant did  not demonstrate



            that the motion could not  be fairly and effectively  "heard"



            on  the papers.   See United States  v. McGill, 11  F.3d 223,
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            225-26 (1st Cir. 1993).



                      Appellant's motion  for oral argument on  appeal is



            denied.  The judgment below is affirmed.   See Loc. R. 27.1.
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