United States Court of Appeals For the First Circuit No. 21-1858

DAVID EFRON,

Plaintiff, Appellant,

v.

UBS FINANCIAL SERVICES INCORPORATED OF PUERTO RICO; UBS FINANCIAL SERVICES INC.; LUZ NEREIDA COLÓN; ENEIDA RODRÍGUEZ; HECTOR SUEIRO-ALVAREZ,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. William G. Young, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Montecalvo, Circuit Judges.

Alfredo Fernández-Martínez, with whom Delgado & Fernández, LLC was on brief, for appellant David Efron. Amy Mason Saharia, with whom Christopher N. Manning, Michael R. Fishman, and Williams & Connolly LLP were on brief, for appellees UBS Financial Services Incorporated of Puerto Rico, UBS Financial Services Inc., Luz Nereida Colón, Eneida Rodríguez, and Hector Sueiro-Alvarez.

March 20, 2024

 Of the District of Massachusetts, sitting by designation. MONTECALVO, Circuit Judge. Plaintiff-appellant David

Efron ("Efron") sought to bring a Racketeer Influenced and Corrupt

Organizations Act ("RICO") claim and various Puerto Rico law claims

against defendant-appellees UBS Financial Services Incorporated of

Puerto Rico, UBS Financial Services Inc., Luz Nereida Colón

("Colón"), Eneida Rodríguez, and Hector Sueiro-Alvarez,1 alleging

that they illegally disclosed his private bank account information

to his ex-wife, Madeleine Candelario Del Moral ("Candelario").

Efron contends that UBS's disclosure triggered extensive

litigation over Candelario's entitlement to Efron's assets housed

at UBS and eventually led to UBS seeking millions in

indemnification from Efron. UBS moved to dismiss the complaint,

and the district court both denied Efron leave to file a second-

amended complaint on futility grounds and dismissed the case.

Efron now appeals the district court's dismissal of the case, its

ruling limiting his pre-dismissal discovery to two depositions,

and its denial of his motion for leave to amend. Meanwhile, UBS

has moved for sanctions against Efron for filing what it contends

is a frivolous appeal.

For the reasons explained below, the district court did

not abuse its discretion in limiting Efron to deposing only two

1 For consistency and to avoid confusion, we refer to defendant-appellees collectively as "UBS" and specifically identify individual defendant-appellees where necessary.

- 2 - UBS employees before requiring him to file a proposed second-

amended complaint. We also agree with the district court that

permitting Efron to amend his complaint would be futile. We

therefore affirm the district court's dismissal of Efron's RICO

claim. Lastly, while Efron's grounds for appeal were weak, we

decline to take the drastic measure of imposing sanctions.

I. Background

On appeal from the district court's dismissal of Efron's

claims, "[w]e take all facts pled, as well as all reasonable

inferences to be drawn therefrom, in the light most favorable to"

Efron. Butler v. Deutsche Bank Tr. Co. Ams.,

(1st

Cir. 2014).

In 1999, Efron and Candelario filed for divorce in the

Puerto Rico Court of First Instance ("CFI"). The divorce was

finalized on June 4, 2001,2 but Candelario's ability to obtain

Efron's assets following the divorce has been the subject of

complex and still-ongoing litigation. As part of the CFI's divorce

judgment, Efron was required to pay Candelario $50,000 per month

beginning on June 4, 2001.

2 At points in his briefing and proposed second-amended complaint, Efron states that his divorce was finalized in May 2001. The exact date of the divorce is not relevant here. But we note this inconsistency and rely on June 4, 2001 as the date the divorce was finalized because Candelario's subpoena to UBS requested Efron's financial documents pre-dating June 4, 2001.

- 3 - In 2005, Candelario sued Efron in the CFI alleging that

he had not made any monthly payments in accordance with the divorce

judgment. During discovery in Candelario's lawsuit, the CFI barred

Candelario from requesting documents related to Efron's assets

obtained after the divorce was finalized. Specifically, the CFI

ruled that Candelario could not seek third-party discovery on

Efron's financial assets "subsequent to the date of the divorce."

Of particular relevance here, in 2002, Efron opened

three investment accounts with UBS after the divorce was finalized.

Accordingly, the CFI's limiting order should have precluded

Candelario from learning of these three post-divorce UBS accounts.

In August 2005, Candelario's attorneys subpoenaed UBS for

documents related to Efron's UBS accounts. And pursuant to the

CFI's limiting order, the subpoena requested only information up

to June 4, 2001. Despite this limitation, however, UBS produced

documents post-dating June 4, 2001, including information on

Efron's three UBS accounts opened in 2002.

Efron alleges that UBS disclosed a total of 324 documents

that exceeded the scope of the subpoena and violated the CFI's

limiting order. Furthermore, Efron maintains that he informed UBS

of the CFI's limiting order before Candelario issued her subpoena;

UBS never sought his consent before responding to the subpoena;

UBS intentionally excluded his UBS financial advisor, Miguel Coll

del Río ("Coll"), from conversations regarding disclosure of

- 4 - Efron's account information to Candelario; and UBS employees later

attempted to cover up the overproduction when Efron confronted

them. Efron also contends that as part of UBS's cover-up scheme,

UBS lied to Coll about the overproduction because it knew Coll

would reveal the misconduct to Efron if he knew the truth.

Upon learning that Efron had opened accounts at UBS post-

divorce, Candelario obtained an attachment order from the CFI for

Efron's UBS assets. In August 2007, the CFI issued an Order on

the Sale of Assets ("the Order"), requiring UBS to freeze Efron's

three accounts and instructing it "to immediately sell and

liquidate the bonds, shares and securities in its custody" from

those accounts. After liquidation, UBS was ordered to write a

check for $4,160,522.61 to Candelario. The Order further "exempted

[UBS] from any loss [Efron] may suffer as a consequence of the

sale" of his UBS assets and forbade Efron from "alienating,

selling, transferring or pledging the assets that are in the

custody of UBS."

Candelario did not receive the money from UBS as

contemplated by the Order. In 2008, Candelario sued UBS in federal

district court in Puerto Rico, alleging that, rather than abiding

by the Order, UBS "negligently released the restraints imposed on

Efron's accounts by [the Order], allowing Efron to transfer

millions of dollars in assets elsewhere and evade her collection

efforts." As this court noted in Efron's prior appeal related to

- 5 - Candelario's 2008 suit against UBS, at one point, Efron's UBS

accounts "had more than $11,000,000." In re Efron,

(1st Cir. 2014). But Candelario maintained that UBS wrongfully

"treated [the Order] as void," which permitted Efron to disburse

his UBS assets, leaving "insufficient funds remaining to satisfy

Candelario's demands."

In 2016, the district court entered

judgment in favor of Candelario, awarding her $4,725,629 against

UBS. UBS later settled with Candelario for $4,450,000, an

agreement that Efron insists was "carefully planned" as "part of

a scheme to . . . make Efron liable" for UBS's wrongdoing.

In January 2017, UBS sought indemnification from Efron

for its settlement with Candelario by initiating arbitration

against him with the Financial Industry Regulatory Authority

("FINRA"). The FINRA arbitrators initially issued a $9,721,050.65

award to UBS after Efron failed to appear for arbitration. But in

2020, a Florida appeals court reversed the decision because the

FINRA arbitrators rejected Efron's request for a postponement to

obtain new counsel without justification and thus improperly

denied him an adequate opportunity for representation at the

arbitration hearing. In a Rule 28(j) letter filed on October 24,

2023, UBS noted that, over Efron's objections, a federal district

court in Florida recently confirmed the FINRA arbitrators' revised

award of $6,480,854.80 to UBS.

- 6 - Efron filed this lawsuit against UBS on June 13, 2019,

but he amended his complaint before service in December 2019.

Efron raised a RICO claim and various Puerto Rico law claims

stemming from UBS's overproduction of documents to Candelario.

UBS moved to dismiss Efron's first-amended complaint on February

28, 2020. After UBS's motion to dismiss was filed, the parties

disputed the extent to which Efron should have been permitted to

engage in pre-dismissal discovery in responding to UBS's motion

and preparing to file a second-amended complaint. Efron sought to

compel the depositions of eleven UBS agents, while UBS opposed

Efron's motion to compel and moved to stay discovery pending

resolution of the motion to dismiss. The district court indicated

its intent to rule on the discovery issue at the motion to dismiss

hearing if the parties could not reach an agreement.

At the motion to dismiss hearing, the court found Efron's

RICO allegations to be "simply inadequate," such that the court

felt it was "bending over backwards to give [Efron] every chance

to file a viable cause of action." Because the court considered

even four or five depositions to be "hardly limited" discovery, it

permitted Efron to take only two depositions of the UBS employees

Efron considered "most important."

In support of his proposed second-amended complaint,

Efron deposed Coll (his UBS financial advisor) and Eneida Rodríguez

(a UBS employee involved in the Candelario document disclosure).

- 7 - After deposing Coll and Rodríguez, Efron moved for leave to file

a second-amended complaint on July 19, 2021. Efron prefaced his

proposed second-amended complaint by stating that "more discovery

will be needed to prove all of the allegations." Nonetheless, he

maintained that he had "enough information now to comply with the

RICO specificity requirements."

The district court denied Efron's motion for leave to

amend in a text-only order stating that amendment would be "futile"

as "the proposed second[-]amended complaint fails to state a cause

of action for violations of the RICO statute." And by declining

to exercise supplemental jurisdiction over Efron's Puerto Rico law

claims, the court dismissed Efron's case in its entirety.3 On

September 29, 2021, the district court entered an order dismissing

Efron's case. Efron filed a timely notice of appeal on October 8,

2021.

Concurrently with filing its response brief on appeal,

UBS moved for sanctions against Efron, alleging that the present

appeal is frivolous and UBS is entitled to fees and costs for

defending against it. UBS's sanctions motion has since been fully

briefed and reserved for decision by this panel.

3 On appeal, Efron challenges only the dismissal of his RICO claim.

- 8 - II. Discussion

A. The District Court's Limitation of Efron's Pre-Dismissal Discovery

We begin by assessing the district court's decision to

limit Efron's pre-dismissal discovery to two depositions. A

district court's order limiting discovery is reviewed for abuse of

discretion. U.S. ex rel. Duxbury v. Ortho Biotech Prods., L.P.,

(1st Cir. 2013). This court "will intervene in

such matters only upon a clear showing of manifest injustice, that

is, where the lower court's discovery order was plainly wrong and

resulted in substantial prejudice to the aggrieved party." Mack

v. Great Atl. & Pac. Tea Co.,

(1st Cir. 1989).

Efron argues that the district court "arbitrarily

denied" his request to take eleven depositions before filing a

proposed second-amended complaint. And he insists that the two

depositions to which he was limited did not constitute sufficient

pre-dismissal discovery as contemplated by this court's decision

in New England Data Services, Inc. v. Becher,

(1st

Cir. 1987).

In Becher, we held that, where allegations supporting a

RICO claim do not satisfy the particularity requirements of Federal

Rule of Civil Procedure 9(b), a court should not "automatic[ally]"

dismiss the claim.

. Instead, if the complaint

raises "specific allegations . . . [that] make it likely that the

- 9 - defendant used interstate mail or telecommunications facilities"

and the court finds "specific information as to use [of interstate

mail or telecommunications] is likely in the exclusive control of

the defendant," the court "should make a second determination as

to whether the claim as presented warrants the allowance of

discovery."

Put simply, Becher discovery assists the

plaintiff in accessing information to allow them "to plead the

time, place and contents of communications between the defendants"

with sufficient particularity.

.

This court later emphasized that "Becher discovery (with

concomitant leave to amend) 'is neither automatic, nor of right,

for every plaintiff.'" Cordero-Hernández v. Hernández-

Ballesteros,

(1st Cir. 2006) (quoting Ahmed v.

Rosenblatt,

(1st Cir. 1997)). For example, in

North Bridge Associates, Inc. v. Boldt,

(1st Cir.

2001), we upheld the district court's denial of Becher discovery

by concluding that "[t]his is not a case to which the generosity

of our approach in Becher is applicable."

. The North

Bridge court concluded that the plaintiffs failed to raise specific

allegations of interstate communications and their complaint

ultimately lacked "the substance of a RICO claim." Id.; see also

Douglas v. Hirshon,

(1st Cir. 2023) (affirming

denial of Becher discovery where the plaintiff's complaint failed

- 10 - to allege RICO claims with sufficient particularity under Rule

9(b) and the "ordinary plausibility standard").

Even assuming that Efron was entitled to Becher

discovery, he has not presented us with any cases suggesting that

limiting his pre-dismissal discovery to two depositions was an

abuse of discretion. Pursuant to Federal Rule of Civil Procedure

30(a)(2), during the course of ordinary discovery, Efron would

have needed to seek leave of court to take eleven total depositions

and provide sufficient justification for exceeding discovery

limits. Yet nothing in the record demonstrates that Efron

adequately supported his request for such extensive pre-dismissal

discovery, nor has he articulated why he needed additional

discovery on appeal.

And in filing his proposed second-amended complaint,

Efron attested that he had obtained "enough information . . . to

comply with the RICO specificity requirements." This admission,

along with the fact that he never sought leave for additional

discovery before filing the proposed second-amended complaint,

gravely undermines or entirely waives Efron's position on appeal

that taking two depositions was insufficient. See United States

v. Mayendía-Blanco,

(1st Cir. 2018) (deeming an

argument waived when a party intentionally relinquishes or

abandons it). Therefore, Efron plainly fails to show that the

- 11 - district court abused its discretion in limiting his pre-dismissal

discovery.

B. The District Court's Denial of Efron's Motion for Leave to Amend

We now turn to whether the district court properly denied

Efron's motion for leave to amend and dismissed his case.4 This

court's review of "the district court's dismissal of [Efron's]

claims is de novo, and the denial of leave to amend further is

reviewed for abuse of discretion." Pruell v. Caritas Christi,

(1st Cir. 2012) (citations omitted).

If the district court's judgment is supported by an

"adequate reason for the denial," we defer to the decision.

Aponte-Torres v. Univ. of P.R.,

, 58 (1st Cir. 2006).

As relevant here, a district court may properly deny leave to amend

when it "would be an exercise in futility." Id.

To assess whether a proposed amended complaint

withstands a Rule 12(b)(6) motion (and thus whether leave to amend

was futile), this court "must accept as true all well-pleaded facts

'indulging all reasonable inferences in [Appellant's] favor.'"

4 Efron's appeal also nominally challenges the district court's dismissal of his first-amended complaint, but all of Efron's contentions in his opening brief relate exclusively to his challenge to the district court's denial of his motion for leave to amend. Thus, any argument that Efron's first-amended complaint sufficed to state a claim and should not have been dismissed is waived for lack of development. See United States v. Zannino,

(1st Cir. 1990).

- 12 - Fantini v. Salem State Coll.,

(1st Cir. 2009)

(alteration in original) (quoting Nisselson v. Lernout,

(1st Cir. 2006)). Of critical importance here, a

complaint raising RICO claims predicated on mail and wire fraud

must satisfy Rule 9(b)'s particularity requirements. Becher,

. Specifically, Rule 9(b) mandates that "the complaint

'must state the time, place and content of the alleged mail and

wire communications perpetrating that fraud.'" Douglas,

n.7 (quoting Ahmed,

).

To raise a civil RICO claim, "a plaintiff must allege 'a

violation of section 1962' and an injury 'by reason of' that

violation." Lerner v. Colman,

(1st Cir. 2022)

(quoting

(c)). Efron's RICO claim is premised on

a violation of

(c), which requires showing that

"any person employed by or associated with any enterprise engaged

in, or the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or indirectly, in

the conduct of such enterprise's affairs through a pattern of

racketeering activity."

(c). Efron also alleges

a conspiracy to violate RICO under

(d).

Accordingly, the four key elements of a RICO claim (which also

constitute the underlying substantive offense for a RICO

conspiracy claim) are: "(1) conduct (2) of an enterprise (3)

- 13 - through a pattern (4) of racketeering activity." Sedima, S.P.R.L.

v. Imrex Co.,

(1985).

Efron insists that the district court abused its

discretion in denying his motion for leave to file a second-amended

complaint for futility. UBS argues that Efron's RICO allegations

were deficient in three main ways: (1) failure to allege a RICO

enterprise; (2) failure to allege predicate acts of mail or wire

fraud; and (3) failure to allege a pattern of racketeering

activity. Any one of these is independently fatal to Efron's RICO

claim. As discussed below, we find that Efron's failure to

plausibly allege predicate acts of mail or wire fraud warrants

affirmance of the district court's denial of leave to amend for

futility.

Even assuming Efron had plausibly alleged a RICO

enterprise in the second-amended complaint, he cannot satisfy

RICO's predicate acts element. Efron's proposed second-amended

complaint relies on mail or wire fraud as the predicate

racketeering acts for his RICO claim. See

(1).

To establish mail or wire fraud, Efron was required to show that

UBS "engaged in a scheme to defraud with the specific intent to

defraud and that [it] used the United States mails and/or the

interstate wires in furtherance of the scheme." McEvoy Travel

Bureau, Inc. v. Heritage Travel, Inc.,

(1st Cir.

1990). In particular, "the scheme must be intended to deceive

- 14 - another, by means of false or fraudulent pretenses,

representations, promises, or other deceptive conduct."

(emphasis added).

Construing the proposed second-amended complaint in the

light most favorable to Efron, the three primary predicate acts of

mail or wire fraud he alleges are: (1) UBS's overproduction of

Efron's account information in response to Candelario's subpoena;

(2) UBS's alleged cover-up of the overproduction; and (3) UBS's

subsequent FINRA litigation seeking indemnification from Efron

after it settled with Candelario.

As to UBS's overproduction of documents, Efron fails to

plausibly demonstrate how this conduct -- which may constitute

negligence, breach of contract, or breach of fiduciary duty -- can

be construed as mail or wire fraud. A "breach of a fiduciary duty,

standing alone, does not constitute mail fraud." United States v.

Greenleaf,

(1st Cir. 1982). "Nor does a breach

of contract in itself constitute a scheme to defraud." McEvoy

Travel Bureau, Inc.,

; see also Arzuaga-Collazo v.

Oriental Fed. Sav. Bank,

(1st Cir. 1990) ("This

complaint reads as if it is charging a breach of contract or a

violation of a consumer protection law, not racketeering.").

Relatedly, Efron ignores the fact that the falsity of a

statement alone is inadequate to demonstrate fraudulent intent.

Efron is correct that the alleged wire communication between UBS

- 15 - agents regarding the scope of documents necessary to respond to

Candelario's subpoena was inaccurate because it failed to include

the CFI's restriction on documents post-dating June 4, 2001. But

Efron does not plausibly establish that UBS's communications were

made with the intent to defraud him. Rule 9(b) "requires not only

specifying the false statements and by whom they were made but

also identifying the basis for inferring scienter." N. Am. Cath.

Educ. Programming Found., Inc. v. Cardinale,

(1st

Cir. 2009). Besides conclusory allegations as to UBS's fraudulent

intent in disclosing the documents to Candelario, Efron's proposed

second-amended complaint does not credibly suggest that UBS acted

with specific intent to deceive. Cf. Mendez Internet Mgmt. Servs.,

Inc. v. Banco Santander de P.R.,

(1st Cir. 2010)

(rejecting the plaintiff's attempt to establish predicate acts

through mail or wire fraud because "[e]ven if the [defendants]

were implicitly misrepresenting their motive . . . , it is not the

falsity of their excuse that causes [the plaintiff] damage").

Similarly, Efron's allegations regarding UBS's purported

cover-up following its overproduction do not satisfy the

particularity or plausibility standards. While the record

reflects that a few communications were made via email, satisfying

Rule 9(b)'s requirement for pleading the communications' time,

place, and contents, Efron has not plausibly alleged how those

statements were fraudulent. Indeed, in these internal email

- 16 - communications, the individual defendant-appellees and other UBS

employees appear to be conceding that they made the overproduction.

Additionally, the statements that could most arguably be

construed to have been intentionally deceptive were not pled with

particularity nor do they satisfy the basic elements of mail or

wire fraud. For example, the proposed second-amended complaint

refers to statements that Sueiro-Alvarez and Colón made to Coll

falsely denying the overproduction. But Efron alleged that several

of these communications were made in-person, meaning they cannot

constitute mail or wire fraud acts. See Giuliano v. Fulton,

(1st Cir. 2005) (explaining that, because "[m]any of

the specific allegations of fraud do not implicate the mail or the

wires," the plaintiff could not rely on such allegations to

establish "a RICO predicate act"); Fleet Credit Corp. v. Sion,

(1st Cir. 1990) ("[A]cts of common law fraud that do

not implicate the mails (or the wires) do not constitute

'racketeering activity' under the definition found within the RICO

statute."). As for the rest of the communications, Efron's

allegations suffer from a host of other issues, including failure

to specify the manner in which they were made, conclusory

statements regarding fraudulent intent, and neglecting Rule 9(b)'s

requirement for details as to time and place. See Ahmed,

; cf. Efron v. Embassy Suites (P.R.), Inc.,

, 16

n.4 (1st Cir. 2000) (noting, in another RICO case that Efron

- 17 - brought before this court, the district court's refusal to consider

"seven faxes because Efron failed to allege that they had been

transmitted interstate").

Efron's reliance on UBS's FINRA litigation as a

predicate act of mail or wire fraud fares no better. As with the

cover-up theory, Efron's conclusory allegations that UBS

nefariously plotted against him do not plausibly demonstrate that

UBS initiated the FINRA litigation with intent to defraud. In

fact, inferring fraudulent intent with respect to any of these

alleged predicate acts would require giving legitimacy to Efron's

theory that, by disclosing his financial information to Candelario

in 2005, UBS knew that it would be able to recover against him

nearly two decades later. But as discussed above, Efron's proposed

second-amended complaint provides no basis for accepting such a

far-fetched scheme as plausible. See Hayduk v. Lanna,

(1st Cir. 1985) ("[M]ere allegations of fraud, corruption

or conspiracy, averments to conditions of mind, or referrals to

plans and schemes are too conclusional to satisfy the particularity

requirement, no matter how many times such accusations are

repeated.").

The district court was within its discretion to conclude

that permitting the amendment would be futile because, even after

taking pre-dismissal depositions, Efron still could not plead

fraud with sufficient particularity. See Giuliano, 399 F.3d at

- 18 - 388 ("We will not imply or read into the amended complaint the

mail or wire connection where it is not alleged specifically.").

Therefore, the district court appropriately concluded that Efron's

inability to allege viable predicate acts rendered amendment

futile.

Efron's "[f]ailure to plead predicate acts adequately is

enough to sink his RICO claim." Ahmed,

.

Consequently, without a viable underlying RICO claim, accepting

the proposed second-amended complaint's RICO conspiracy claim

would also have been futile. See Efron,

("[I]f the

pleadings do not state a substantive RICO claim upon which relief

may be granted, then the conspiracy claim also fails.").

C. UBS's Motion for Sanctions

UBS has moved for sanctions against Efron for filing

what it considers to be a frivolous appeal. Pursuant to Federal

Rule of Appellate Procedure 38, if this court "determines that an

appeal is frivolous, it may, after a separately filed motion . . .

and reasonable opportunity to respond, award just damages and

single or double costs to the appellee." "In order to find that

an appeal is frivolous, we need not find that it was brought in

bad faith or that it was motivated by malice." E.H. Ashley & Co.

v. Wells Fargo Alarm Servs.,

(1st Cir. 1990).

Instead, "it is enough that the appellants and their attorney

- 19 - should have been aware that the appeal had no chance of success."

In its sanctions motion, UBS insists that Efron's

briefing failed to comply with Federal Rule of Appellate Procedure

28, his arguments are meritless, and he filed the appeal "for the

improper purpose of harassing and imposing litigation costs upon

UBS."

In a prior case involving Efron's attempted intervention

in Candelario's lawsuit against UBS, this court declined to impose

sanctions against Efron but warned that he "came perilously close"

to committing sanctionable conduct. In re Efron,

.

We noted that his case was "manifestly weak," while emphasizing

that "'weak' is not synonymous with 'frivolous.'"

We further

described that the "case-specific nature" of the issues presented

"counsel[ed] against saying that Efron 'had no legitimate ground

for pursuing this appeal.'"

(quoting E.H. Ashley & Co.,

).

Here, Efron's case was similarly weak, but contrary to

UBS's contentions, it involved case-specific issues that were not

so squarely resolved in his prior appeal on a different RICO claim

(Efron v. Embassy Suites (P.R.), Inc.,

(1st Cir.

2000)). And while UBS was burdened by litigating this appeal and

- 20 - its troubled history with Efron is clear from the record, its

allegations of malintent fall short.5

As such, we decline to impose sanctions against Efron.

But once again, we conclude that he has come dangerously close to

crossing the line. And we reiterate that, where an appeal is

genuinely frivolous and "appellant's brief added a significant

burden on appellee's counsel and the court," we have not hesitated

to sanction the appellant. Commonwealth Elec. Co. v. Woods Hole,

(1st Cir. 1985). Efron is therefore admonished to

avoid coming "perilously close" to being sanctioned for a third

time.

III. Conclusion

For the foregoing reasons, we affirm the district

court's ruling limiting Efron's pre-dismissal discovery and its

order denying Efron leave to file a second-amended complaint and

dismissing his case, and we deny UBS's motion for sanctions.

5 UBS also points to numerous other cases where Efron, as a litigant or counsel, has had RICO claims dismissed or been sanctioned for various misconduct. But UBS offers no authority to support using Efron's conduct in other cases as the basis for sanctions here.

- 21 -