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
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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-cv00227, 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. 
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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.
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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.
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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 
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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.
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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.
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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-cv00227, 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).
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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 
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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.
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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 
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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 
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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).
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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.
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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.
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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 
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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.
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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 
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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 
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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.
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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 
- 23 -

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 
- 24 -

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.
- 25 -

The district court properly denied the plaintiffs' 

motion for limited discovery.

III.

For the foregoing reasons, we affirm.