Butler v. Balolia

Filing 63

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. (Bartlett, Timothy)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

DAVID BUTLER,

Plaintiff,

v.

Civ. No. 12-11054-MLW

SHIRAZ BALOLIA,

Defendant.

MEMORANDUM AND ORDER
WOLF, D.J.

September 30, 2015

Defendant Shiraz Balolia's motion to dismiss plaintiff David
Butler's claims for the alleged violation of Massachusetts General
Laws Chapter

93A and for

specific performance are meritorious.

Therefore, these claims are being dismissed without prejudice to
the filing of an Amended Complaint alleging a violation of the
Washington Consumer Protection Act,
~'

and

to

plaintiff

receiving

Wash.

Rev.

specific

Code §19. 86 et.

performance

as

an

equitable remedy if he prevails on his breach of contract claim.
Chapter 93A prohibits unfair or deceptive acts or practices.
See M.G.L.
, neither

c.

93A §2 (a).

wholly

"An action pursuant to G.L.

tortious

nor

wholly

contractual

in

c.

93A is

nature.'"

Standard Register Co. v. Bolton-Emerson, Inc., 649 N.E.2d 791, 793
(Mass. App. Ct. 1995)

(quoting Slaney v. Westwood Auto, Inc., 322

N.E.2d 768, 779 (Mass. App. Ct. 1975)). When a Chapter 93A claim
is founded on acts that resemble a traditional breach of contract
action,

the

contract's

choice

of

law

provision

applies.

Id.;

Worldwide Commodities,
615,

618

Inc.

v.

J. Amicone Co.,

Inc.,

630 N.E.2d

(Mass. App. Ct. 1994); Northeast Data Sys. v. McDonnell

Douglas Computer Systems Company,

986

F.2d

607,609

(1st Cir.

1993). Scrutiny of the First Amended Complaint persuades the court
that the alleged contract violations are "at the core of" Butler's
Chapter 93A claim. Worldwide Commodities,

630 N.E.2d at 618. The

Letter of Intent which constitutes the alleged contract in this
case

states

Washington.

that

it

is

governed by

See Docket No,

2-1,

~8;

the

laws

Butler v.

of

the

state

Balolia,

of

736 F.3d

609, 612 (1st Cir. 2013). Therefore, the Chapter 93A claim, Count
IV, must be dismissed. See, e.g., Northeast Data Sys. v. McDonnell
Douglas Computer Systems
however,

Company,

986

F.2d at

609-611.

It

is,

appropriate to allow Butler to amend the complaint to

allege a violation of the Washington counterpart of Chapter 93A.
See F.R. Civ. P. 15 (a) (2) ("The court should freely give leave [to
amend] when justice so requires."); Foman v. Davis, 371 U.S. 178,
182 (1962).
Defendant correctly contends that specific performance is an
equitable remedy rather than a cause of action.
(Second)

Of

Automation,

Contracts

(1981);

§357(1)

Inc., Civil Action No.

Feeney

See Restatement
v.

Transition

06-11677-RWZ, 2008 U.S. Dist.

LEXIS 4106, *5 (D. Mass. Jan 9, 2008). Therefore, Count V is being

2

dismissed without prejudice to specific performance possibly being
ordered if a breach of contract claim is proven.
In view of the foregoing, it is hereby ORDERED that:
1. Defendant's Motion to Dismiss Counts IV and V (Docket No.
54)

is ALLOWED without prej udice to the filing,

by October 23,

2015, of a Second Amended Complaint alleging a violation of Wash.
Rev. Code §19.86 et.

~.

2. Defendant shall respond to the Second Amended Complaint by
November 13, 2015.
3. This case is REFERRED to the magistrate judge for pretrial
purposes or, if the parties consent, for all purposes.

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