O'Hearn v. Merrill Lynch, (1st Cir. 1996)

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September 23, 1996 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-1552

JOHN J. O'HEARN,

Plaintiff, Appellant,

v.

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

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella, Chief Judge, Cyr and Stahl, Circuit Judges.

John J. O'Hearn, Jr. on brief pro se.

Thomas Paul Gorman, Bryan G. Killian and Sherin and Lodgen on brief for appellee.

Per Curiam. Plaintiff-appellant O'Hearn appeals 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 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, 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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