Coccoli, Sr. v. FREDAP, Inc.

Filing 51

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE: DEFENDANTS MOTION TO DISMISS COMPLAINT FOR LACK OF STANDING (DOCKET ENTRY # 28) is ALLOWED as to the tax indebtedness claim and DENIED as to the breach of contract claim. T his action will proceed only with respect to the claim for breach of a joint venture agreement. MOTION FOR ALLOWANCE OF REAL ESTATE ATTACHMENT (DOCKET ENTRY # 18); MOTION FOR APPROVAL OF REAL ESTATE ATTACHMENT (DOCKET ENTRY # 21). The motions for a prejudgment attachment (Docket Entry ## 18 & 21 are DENIED(Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

VINCENT R. COCCOLI, SR.,
Plaintiff,

v.

CIVIL ACTION NO.
13-12757-MBB

ALFRED DAPRATO,
FREDAP, INC. and
FREDAP REALTY TRUST,
Defendants.

MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTION TO DISMISS COMPLAINT FOR LACK OF STANDING
(DOCKET ENTRY # 28); MOTION FOR ALLOWANCE OF REAL ESTATE
ATTACHMENT (DOCKET ENTRY # 18); MOTION FOR APPROVAL OF REAL
ESTATE ATTACHMENT (DOCKET ENTRY # 21)
May 13, 2014
BOWLER, U.S.M.J.
Pending before this court is a motion to dismiss for lack
of standing (Docket Entry # 28) filed by defendants Alfred
Daprato (“Daprato”), FREDAP, Inc. and FREDAP Realty Trust 1
(collectively “defendants”) under Fed.R.Civ.P. 12(b)(1) (“Rule
12(b)(1)”) and two motions for a real estate attachment (Docket
Entry ## 18 & 21) filed by plaintiff Vincent R. Coccoli, Sr.
(“Coccoli”) under Mass.R.Civ.P. 4.1 (“Rule 4.1”).

Coccoli

opposes the motion to dismiss (Docket Entry # 30) and defendants
1

The complaint identifies these two parties in the caption.
See Fed.R.Civ.P. 10(a) (caption of complaint “must name all
parties”). The complaint refers to “FREDAP, Inc./FREDAP Realty
Trust” as well as “FREDAP” and “FREDAP, Inc.”

oppose the motions for a real estate attachment (Docket Entry #
22).

Defendants also responded to various documents Coccoli

filed on January 28, 2014, (Docket Entry # 30-1 to # 30-6)
(Docket Entry # 40) and had the opportunity at a March 3, 2014
hearing to respond to documents Coccoli filed on January 24,
2014. 2

After conducting the hearing on March 3, 2014, this court

took the motions (Docket Entry ## 18, 21 & 28) under advisement.
The complaint alleges that Anthony Petrillo (“Petrillo”)
“of Millville Associates,” Inc. (“Millville”) paid property
taxes for two adjoining parcels of land located in Millville,
Massachusetts “for 1993 to 1997.”

(Docket Entry # 1, ¶ 8).

Coccoli seeks to recover the property tax payments from
defendants together with interest and costs from 1997 to 2012
for a total amount of $411,000.00.

(Docket Entry # 1, p. 5).

The brevis complaint also refers to an October 15, 2010 verbal
agreement between Coccoli, Petrillo and Luigi D’Arcangelo
(“D’Arcangelo”) of Millville on the one hand and “Daprato, John
Daprato and FREDAP” on the other hand to “develop the parcels of
land.”

(Docket Entry # 1, ¶ 20).
STANDARD OF REVIEW

In considering a Rule 12(b)(1) motion to dismiss based on
lack of standing, the court accepts “‘as true all well-pleaded
2

Because Coccoli is proceeding pro se and defendants had ample
opportunity to respond to the documents, this court will include
them (Docket Entry # 27-1 to 27-20) as part of the record.
2

factual averments in the plaintiff’s complaint and indulge[s]
all reasonable inferences therefrom in his favor.’”

Katz v.

Pershing, LLC, 672 F.3d 64, 70-71 (1st Cir. 2012) (internal
ellipses omitted); Sanchez ex rel. D.R.-S. v. U.S., 671 F.3d 86,
92 (1st Cir. 2012) (“credit[ing] the plaintiff’s well-pled
factual allegations and draw[ing] all reasonable inferences in
the plaintiff’s favor” under Rule 12(b)(1)); Warth v. Seldin,
422 U.S. 490, 501-02 (1975).
In evaluating a Rule 12(b)(1) motion to dismiss, the
complaint is liberally construed and the court “ordinarily ‘may
consider whatever evidence has been submitted, such as . . .
depositions and exhibits.”

Carroll v. U.S., 661 F.3d 87, 94 (1st

Cir. 2011); see Rice v. Holder, 898 F.Supp.2d 291, 294 n.2
(D.D.C. 2012) (liberally construing pro se complaint in
resolving Rule 12(b)(1) motion to dismiss).

Accordingly, in

addition to the factual averments in the complaint, the Rule
12(b)(1) record includes the documents submitted by the parties.
In evaluating a motion for attachment, Rule 4.1 requires
the moving party to submit affidavits that “set forth specific
facts.”

Mass.R.Civ.P. 4.1(h).

Coccoli certifies that the facts

in the complaint are true under the pains and penalties of
perjury.

Specific facts in the verified complaint are therefore

part of the record vis-à-vis the motions for attachment.
FACTUAL BACKGROUND

3

Coccoli, a resident of Chepachet, Rhode Island, has “been a
member” of Millville “since 1992.”

(Docket Entry # 1, ¶¶ 1-2).

FREDAP, Inc. “is a Domestic Profit Corporation organized” in
Massachusetts. 3

(Docket Entry # 1, ¶ 4).

The present dispute has its origins in two 1928 conveyances
of land owned by Frederick Thayer for nonpayment of taxes to the
Town of Millville.

(Docket Entry # 27-1).

In November 1928,

after a public auction, the Millville Tax Collector (“the Tax
Collector”) conveyed all right and title of the “Frederick
Thayer home sprout land 30 acres more or less” (book 2483, page
289) (“the Thayer land”) to John H. McLaughlin (“John
McLaughlin”) and all right and title of the “Blake land 40 acres
more or less” (book 2483, page 288) (“the Blake land”) to Fred
M. McLaughlin (“Fred McLaughlin”). 4

(Docket Entry # 27-1).

In

October 1963, the heirs of John and Fred McLaughlin conveyed the
Thayer land and the Blake land to Richard and Anne Pomfret (“the
Pomfrets”) (book 4417, pages 289-290).

(Docket Entry # 27-4)

(Docket Entry # 47-6). 5

3

Defendants’ answer alleges that FREDAP, Inc., a Massachusetts
corporation, dissolved in 1998. It also represents that FREDAP
Realty Trust is a Massachusetts realty trust.
4
References to book and page numbers refer to the location of
the recording of the deed at the Worcester District Registry of
Deeds (“the registry”).
5
This court takes judicial notice of the 1963 deed (Docket
Entry # 47-6). See State National Bank of Big Spring v. Lew,
958 F.Supp.2d 127, 157 n.27 (D.D.C. 2013) (taking judicial
notice of foreclosure information on government website in
4

Almost ten years later on March 31, 1973, the Pomfrets
conveyed certain property to Valmore B. Jacob (“Jacob”) (book
5393, page 276).

The deed recorded on October 12, 1973, states

that the Pomfrets conveyed their right and title to land
“containing 103 acres, more or less, which parcel was deeded to
us by deed of Fred M. McLaughlin.”

(Docket Entry # 27-1).

As

noted above, Fred McLaughlin owned the Blake land of 40 acres.
The description in the deed of 103 acres describes the land as
“lying westerly of said Thayer Street . . ..”
27-1) (emphasis added).

(Docket Entry #

The deed does not cite to the book and

page number of either the 1963 or the 1928 deeds.

Undated

aerial surveys provided by Coccoli plot out the 30 acre Blake
land, the 40 acre Thayer land and a 32.53 acre parcel of land
for a total of 102.53 acres of property.
& 27-20).

(Docket Entry ## 30-2

A memorandum issued by John R. Harrington

(“Harrington”) of the Tax Department of the Land Court (“the
Harrington memorandum”) in a 2003 tax lien case involving the
Blake land states that he reviewed a title report and that the
Pomfrets conveyed “the locus of 40 acres” to Jacob as part of
the 103 acres conveyed in the 1973 deed.

(Docket Entry # 27-

context of deciding Rule 12(b)(1) motion to dismiss for lack of
standing). Defendants do not question the authenticity of the
recorded deed. The 1977 deed submitted in opposition to the
standing motion (Docket Entry # 30-3) refers to the 1963 deed.
Likewise, defendants refer to the 1963 deed in response to
Coccoli’s opposition to the standing motion. (Docket Entry #
40).
5

12).
In or around November 1988, Jacob filed a petition to
register land in the Land Court.

The petition in case number

42453 (“the registration case”) describes “[t]wo parcels of
land” and attaches a survey performed by Andrews Survey and
Engineering, Inc. 6

(Docket Entry ## 27-2 & 27-3).

It depicts

one of the parcels as bounded “easterly by Thayer Street”
whereas the Pomfrets’ deed to Jacob (book 5393, page 276)
describes land “lying westerly” of Thayer Street.

The petition

represents that Jacob obtained title to the land by virtue of
the 1973 deed from the Pomfrets at “Book 5393 Page 276.”
(Docket Entry # 27-2).
Meanwhile, as stated in a March 1977 deed (book 6135, page
48), the Pomfrets conveyed the Thayer land “containing 30 acres
more or less,” and the “Blake Land, containing 40 acres, more or
less,” to Paul J. DiMaio (“DiMaio”), Benson E. Gold (“Gold”) and
Joseph R. Tutalo (“Tutalo”).

(Docket Entry # 30-3).

The 1977

deed refers to the 1928 recording of the Thayer land (book 2483,
page 289) and the Blake land (book 2483, page 288) as well as
the 1963 recording of “the same premises” (book 4417, page 289).
In a July 1984 deed (book 8296, page 33), DiMaio, Gold and
Tutalo conveyed the same property described in the 1977 deed

6

The copy of the Andrews survey Coccoli provides is difficult
to read.
6

(book 6135, page 48) to Fred and John Daprato. 7
30-4).

(Docket Entry #

In October 1986, the Town of Millville recorded a tax

lien on land described as recorded in book 6135 at page 48 and
in book 8296 at page 33.

(Docket Entry # 30-6).

In June 1989,

Fred and John Daprato conveyed all right and title to the Thayer
land “containing 30 acres, more or less” recorded at “Book 2483,
Page 289” and to “[t]he Blake Land, containing 40 acres, more or
less” recorded at “Book 2483, Page 288” to Daprato, as trustee
of FREDAP Realty Trust (book 12247, page 92). 8

The deed further

states that Fred and John Daprato’s title arises from the “deed
dated 10 July 1984” recorded at “Book 8296, Page 33.”
Entry # 22-1).

(Docket

The March 1977 deed and conveyance by the

Pomfrets is later than the October 1973 deed and conveyance by
the Pomfrets. 9
On December 29, 1992, Jacob conveyed all his right and
title to the property that he received from the Pomfrets to
Millville.

(Docket Entry # 1, ¶ 6) (Docket Entry # 22-5). 10

7

The

The only difference in the property descriptions is certain
frontage noted in the March 1977 deed. The 1984 deed refers to
both the 1977 deed and the 1928 deed by book and page number.
(Docket Entry # 30-4).
8
Defendants allege that this land has an address of 154 Thayer
Street. The address is not noted on the deed.
9
The aforementioned Harrington memorandum states that the title
report reflects “an additional chain of title out of the
Pomfrets.” (Docket Entry # 27-12).
10
The complaint states that Millville purchased all right and
title to 103 acres of property. (Docket Entry # 1, ¶ 6). The
deed, which contains a description of the land as “lying
7

deed (book 14943, page 153), recorded on February 8, 1993,
states that the property is “the same premises described” in the
registration case as well as in the 1973 deed from the Pomfrets
to Jacob “in Book 5393, Page 276.”

(Docket Entry # 22-5).

By

checks dated February 4, 1993, Jacob paid the Tax Collector
taxes on the property.

(Docket Entry # 27-6).

On February 8,

1993, the Town of Millville recorded an instrument of redemption
acknowledging satisfaction of a tax title account on the 76 acre
property recorded in book 5393 at page 276.
6).

(Docket Entry # 27-

On the same date, D’Arcangelo, as president of Millville,

and Jacob executed a settlement and release agreement mutually
releasing each other from liability.

The agreement also

assigned Jacob’s rights in the registration case to Millville. 11
(Docket Entry # 47-6).
In November 1994, the Tax Collector acquired a tax deed to
the property described in “Book 14943, Page 153” for nonpayment
of 1993 and 1994 property taxes (book 167110, page 58).
Entry # 22-6).

(Docket

The tax deed describes the property as “situated

at 179 Thayer Street.”

(Docket Entry # 22-6).

In 1997, the Town of Millville notified Millville “that

westerly of Thayer Street,” does not refer to the acreage.
(Docket Entry # 22-5).
11
Coccoli filed the settlement agreement after the March 2014
hearing. It is summarized only to provide background
information. Consideration of the agreement does not alter the
decision to deny the attachment or to allow the standing motion.
8

taxes had not been paid since 1993” on the Blake land and the
Thayer land which “is now known as 148 Thayer Street.”
Entry # 1, ¶ 7). 12

(Docket

In a 1997 letter to D’Arcangelo, Fram Saad,

John Petrillo, Egidio Testani and Donald Studley, all
shareholders of Millville, Millville asked that “each
shareholder pay their respective share of the taxes.” 13
Entry # 27-7).

(Docket

The letter also notes that “Petrillo has

expressed an interest in paying the taxes” and, “[i]f he does,”
Millville “has one year to redeem the property” at “18%
interest” before Petrillo “has the right to foreclose.”
Entry # 27-7).

(Docket

By checks dated March 20, 1997, signed by

Petrillo and bearing an address of “Skeeter Development, Inc.,”
Petrillo paid the property taxes to the Town of Millville in a
total amount of $10,771.22 ($8,639.11 + $2,122.11 + $10.00). 14

12

Defendants deny this statement set out in the complaint. For
standing purposes, it is accepted as true. See Katz v.
Pershing, LLC, 672 F.3d at 70-71.
13
As stated in the complaint, Coccoli has been a member of
Millville since 1992. (Docket Entry # 1, ¶ 2). The letter does
not identify Coccoli as a shareholder.
14
The complaint seeks to recover this amount along with
interest and costs through 2012 for a total of $411,000.00.
Defendants maintain that Millville did not pay the property
taxes on the Blake and the Thayer land that Daprato, as trustee
of FREDAP Realty Trust, owned. Rather, Millville paid taxes on
property situated at the 179 Thayer Street address as described
in the 1992 deed from Jacob to Millville (book 14943, page 153),
according to defendants. The Tax Collector recorded the
aforementioned tax deed (book 16710, page 58) and the
acknowledgment of satisfaction of the tax title account (book
18690, page 114) noting the 179 Thayer Street address. (Docket
Entry # 22-7). A September 18, 2013 letter by the Tax Collector
9

(Docket Entry # 1, ¶ 8) (Docket Entry # 1-2).
Also in 1997, the Tax Collector acquired a tax deed on
“land situated at 154 Thayer Street” described in “Book 12247
Page 92,” i.e., the 1989 deed conveying the Thayer land and the
Blake land to Daprato, as trustee of FREDAP Realty Trust.
(Docket Entry # 22-2).

The tax deed depicts the property as

“containing 69.457 acres, more or less.”

(Docket Entry # 22-4).

After payment of the overdue taxes in September 2001, the Tax
Collector recorded an acknowledgment of “satisfaction of the tax
title account” (book 24984, page 376) on the “land situated at
154 Thayer Street.”

(Docket Entry # 22-4).

In December 2003, Millville filed two tax lien cases
against Frederick Thayer in the Land Court.
each complaint as president of Millville.
& 27-9).

D’Arcangelo signed
(Docket Entry ## 27-8

The first tax lien case, number 130260 (“TL 130260”),

seeks “to foreclose a tax lien acquired under” the tax deed
recorded at “Book 2483 Page 288” for the Blake land.

The second

tax lien case, number 130261 (“TL 130261”), seeks “to foreclose
a tax lien acquired under” the tax deed recorded at “Book 2483
Page 289” for the Thayer land.

(Docket Entry ## 1-3, 1-4, 27-8

& 27-9).
In or around February 2004, Millville requested George S.
to Fred Daprato also refers to the payment of taxes on the 179
Thayer Street property with the above noted checks in the
amounts $8,639.11 and $2,122.11. (Docket Entry # 22-8).
10

Norton, Esq. (“Attorney Norton”), an “approved Land Court
Examiner, to review the record title to the Property . . . and
identify any title issues.”

(Docket Entry # 1, ¶ 10).

In May

2004, Stephen A. Izzi, Esq. (“Attorney Izzi”) entered an
appearance for Millville in both tax lien cases.
# 27-12).

(Docket Entry

On June 2, 2004, the Land Court referred the matter

to Attorney Norton, who Coccoli identifies as the “the Land
Court Examiner” in TL 130260 and TL 130261.
¶ 11) (Docket Entry # 27-12).
each case in September 2004.

(Docket Entry # 1,

Attorney Norton filed a report in
(Docket Entry # 27-12).

In the Harrington memorandum dated October 6, 2004, from
Harrington to Attorney Izzi in TL 130260 regarding the Blake
land, Harrington states that he reviewed the title report
prepared by Attorney Norton.

Harrington notes that the report

reflects an additional chain of title out of the Pomfrets “in a
later deed” than the one given to Jacob in 1973. 15

(Docket Entry

# 27-12).
Beginning in 2004, Millville representatives or attorneys
met with “Daprato/FREDAP, Inc. or his representatives or
attorney” as well as with “Millville Assessors Office
personnel.”

(Docket Entry # 1, ¶ 11).

Millville

representatives or attorneys also met with Attorney “Norton,
appointed as Land Court Examiner” for TL 130260 and TL 130261,
15

See fn. nine.
11

“to research and clarify the basis, description, land area, and
location of the parcels assessed to, and taken for taxes,
against [Jacob] and [Millville] as they relate to the Property.”
(Docket Entry # 1, ¶ 11).
issued.

In May 2008, an “Examiner’s report”

An aerial photograph depicts “each parcel of land

involved” in the Examiner’s report.

(Docket Entry # 1, ¶ 12)

(Docket Entry # 1-5).
On September 11, 2008, 16 Millville, represented by Stephen
Miller, Esq., and “Daprato and FREDAP,” represented by W. Robert
Knapik, Esq., “composed a Joint Venture agreement to jointly own
and develop the parcels of land.”
(Docket Entry # 1-6). 17

(Docket Entry # 1, ¶ 13)

The September 2008 document attached to

the complaint is labeled “Draft” and is not signed.
Entry # 1-6).

(Docket

On November 9, 2008, Coccoli notified John McCoy,

Esq. (“Attorney McCoy”), a Land Court title examiner in the
registration case, “that they would proceed with Foreclosing
Rights of Redemption” on the Blake land and the Thayer land
after Daprato and “FREDAP, Inc. refused to cooperate with
development or sale of the property involved in [the] Tax Lien

16

The complaint refers to this date as January 6, 2008.
(Docket Entry # 1, ¶ 13). The document attached to the
complaint contains the September 11, 2008 date. (Docket Entry #
1-6).
17
The complaint identifies the contracting parties as “Daprato
and FREDAP.” (Docket Entry # 1, ¶ 13). The actual document
identifies the contracting parties as Millville and “FREDAP
Realty, Inc.” (Docket Entry # 1-6).
12

Cases.”

(Docket Entry # 1, ¶ 14).

“On or about January 6, 2009,” Millville, “Daprato and
FREDAP . . . composed another Joint Venture Agreement to jointly
own and develop the parcels of land.”
(Docket Entry # 1-7).
is not signed.

(Docket Entry # 1 ¶ 15)

The January 2009 joint venture agreement

(Docket Entry # 1-7).

Language immediately

above the signature lines states that, “[T]he parties hereto
have executed this Agreement this day of September 2008.”
(Docket Entry # 1-7).

As stated in the document, its purpose is

to “jointly own and develop” the “real estate owned by [FREDAP
Realty, Inc.] 18 situated at 154 Thayer Street” and described in
“Book 12247, Page 92,” i.e., the 1989 deed of the Blake land and
the Thayer land to Daprato, as trustee of FREDAP Realty Trust.
The document includes an integration clause.

Although not set

out in the document, Coccoli and Millville “agreed to [w]ithdraw
their Complaint to Foreclose Rights of Redemption in
Massachusetts Land Court” in exchange for the joint venture
agreement to develop the land.

(Docket Entry # 1, ¶ 15).

On January 19, 2010, the Land Court conducted a status
conference.

(Docket Entry # 1, ¶ 16).

On January 21, 2010,

Coccoli filed a notice of appearance to proceed as “Pro Se
Plaintiff” in TL 130260 and TL 130261.
(Docket Entry # 1-8).
18

(Docket Entry # 1, ¶ 17)

In a bargain and sale deed dated October

See fn. 17.
13

8, 2010, Millville granted Coccoli “all of its right title and
interest in and to that certain land . . . lying easterly and
westerly of Thayer Street” and described in the 1973 deed from
the Pomfrets to Jacob and the deed from Jacob to Millville.
(Docket Entry # 1-10).

D’Arcangelo, in his capacity as

president of Millville, signed the October 8, 2010 bargain and
sale deed. 19

(Docket Entry # 1-10).

“On or about October 10,

2010,” Coccoli submitted a motion to substitute himself as the
real party in interest in TL 130260 and TL 130261.

(Docket

Entry # 1, ¶ 19).
“On or about October 15, 2010,” Coccoli, Petrillo and
D’Arcangelo “of Millville” met with “Daprato, John Daprato, and
FREDAP.”

(Docket Entry # 1, ¶ 20).

“The parties, again, shook

hands and verbally agreed to partner and develop the parcels of
land.”

(Docket Entry # 1, ¶ 20).

At this point, Coccoli owned

the land previously owned by Millville.

(Docket Entry # 1-10).

“From October 18, 2010 through April 2013,” Coccoli and
Millville met with Daprato and “FREDAP to discuss and review
options regarding” TL 130260 and TL 130261.
19

(Docket Entry # 1,

The bargain sale and deed attached to the complaint is dated
October 8, 2010. (Docket Entry # 1-10). In the complaint,
which Coccoli certified “under penalty of perjury,” Coccoli
attests that the bargain and sale deed is a true and accurate
copy of the deed recorded at the registry. (Docket Entry # 1, ¶
19). In opposing the motion to dismiss, Coccoli attaches a
bargain and sale deed that is identical in all respects to the
one attached to the complaint except for the date of October 8,
2009. (Docket Entry # 30-1).
14

¶ 21).
On July 18, 2013, the Land Court held a hearing.
Entry # 1, ¶ 22).

(Docket

At the hearing, Daprato and FREDAP “refused

to honor the terms and conditions of their agreement.”
Entry # 1, ¶ 22).

(Docket

In an October 16, 2013 email to Coccoli, an

individual advised Coccoli of his intention to purchase “the 70
acres” from Daprato.

In a return email the following day,

Coccoli informed the individual that “the 70 acre parcel can not
be sold or leased” because it is subject to a lawsuit in this
court.

(Docket Entry # 27-18).

October 31, 2013.
the Land Court. 20

Coccoli filed this suit on

The registration case remains pending before
(Docket Entry # 27).

The parties also

indicate that the tax lien cases remain pending before the Land
Court.
In the final paragraph of the complaint captioned “Relief
Requested” Coccoli seeks “to recover property taxes he and his
associates paid during the period of 1993 to 1997” regarding TL
130260 and TL 130261 plus interest and costs through 2012.
(Docket Entry # 1).

The amount totals $411,000.00. 21

(Docket

Entry # 1).
I.

Motion to Dismiss (Docket Entry # 28)
Defendants move to dismiss the complaint because Coccoli

20

The filing attaches an unsigned, draft 2012 order to register
the land. (Docket Entry # 27-16).
21
See fn. 14.
15

lacks standing.

(Docket Entry # 28).

Defendants contend that

the “gravamen of the Complaint is that . . . Skeeter
Development, LLC paid taxes on Defendants’ real estate.”
(Docket Entry # 29).

Neither the complaint nor the subsequently

filed materials, including those filed on January 24, 2014
(Docket Entry # 27), show that Coccoli paid these taxes “or that
he, individually has otherwise been damaged,” according to
defendants.

(Docket Entry # 29).

Coccoli submits he has standing because the “‘Skeeter’
transaction was made in 1997 on behalf of Millville Associates”
and he has been “a majority stock holder (50%) of Millville”
“since 2002.”

(Docket Entry # 30).

Coccoli also claims

standing because he purchased the property from Millville “on
October 8, 2009,” as set forth in the bargain and sale deed. 22
(Docket Entry ## 30 & 30-1).
DISCUSSION
Article III constitutional standing limits judicial power
to certain “Cases” and “Controversies.”
2.

U.S. Const. art III, §

In order to satisfy “the ‘irreducible constitutional minimum

of standing,’ [t]he plaintiff must have suffered or be
imminently threatened with a concrete and particularized ‘injury
in fact’ that is fairly traceable to” the defendant and “likely
to be redressed by a favorable judicial decision.”
22

See fn. 19.
16

Lexmark

International, Inc. v. Static Control Components, Inc., 134
S.Ct. 1377, 1386 (2014); Hollingsworth v. Perry, 133 S.Ct. 2652,
2659 (2013) (Article III standing “requires, among other things,
that [the plaintiff] have suffered a concrete and particularized
injury”).

Coccoli, as the party invoking federal jurisdiction,

bears the burden to establish standing.

Blum v. Holder, 744

F.3d 790, 795 (1st Cir. 2014) (“‘“party invoking federal
jurisdiction bears the burden of establishing” standing’”).
Constitutional standing ordinarily reduces to a three part
“triad:

injury, causation, and redressability.”

Wilson v. HSBC

Mortg. Services, Inc., 744 F.3d 1, 8 (1st Cir. 2014).

As

indicated above, it requires “a concrete and particularized
injury, a causal connection between that injury and the
wrongdoer’s conduct, and the likelihood that prevailing in the
action will rectify the injury in some way.”

U.S. v.

$8,440,190.00 in U.S. Currency, 719 F.3d 49, 57 (1st Cir. 2013).
An injury in fact is one “‘that is concrete, particularized, and
actual or imminent; fairly traceable to the challenged action;
and redressable by a favorable ruling.’”

Blum v. Holder, 744

F.3d at 796 (internal brackets omitted).

Although imminence is

“‘a somewhat elastic concept,’” a “‘threatened injury must be
certainly impending’” to constitute an injury in fact and
“‘allegations of possible future injury’ are not sufficient.”
Id. (citations omitted); see Sea Shore Corp. v. Sullivan, 158

17

F.3d 51, 56 (1st Cir. 1998) (“[f]uture injury must be imminent to
qualify as injury-in-fact”).
Standing also has “a prudential component.”

Gianfrancesco

v. Town of Wrentham, 712 F.3d 634, 637 (1st Cir. 2013).

One of

the three principles of prudential standing “is the general
prohibition on a litigant’s raising another person’s legal
rights.”

Lexmark International, Inc. v. Static Control

Components, Inc., 134 S.Ct. at 1386 (internal quotation marks
omitted).

This prohibition leads to a “shareholder-standing

rule, under which a corporate shareholder (even a sole
shareholder) may not sue in his own name to redress injuries
suffered solely by the corporation,” Gianfrancesco v. Town of
Wrentham, 712 F.3d at 637, “even though the injury to the
corporation may incidentally result in the depreciation or
destruction of the value of the stock.”

Pagan v. Calderon, 448

F.3d 16, 28 (1st Cir. 2006); see Diva’s Inc. v. City of Bangor,
411 F.3d 30, 42 (1st Cir. 2005) (“[a]ctions to enforce corporate
rights or redress injuries to [a] corporation cannot be
maintained by a stockholder in his own name even though the
injury to the corporation may incidentally result in the
depreciation or destruction of the value of the stock”)
(ellipses omitted).

Although exceptions exist, this “tenet

holds true even if the shareholder is the sole owner of the
corporation’s stock.”

Pagan v. Calderon, 448 F.3d at 28.

18

The complaint, liberally construed, identifies two
injuries.

One injury is to recoup Millville’s payment of

property taxes (Docket Entry # 1, ¶ 23) and the other injury is
to recover for Daprato and FREDAP’s refusal to honor their
agreement to partner and jointly develop the land situated at
154 Thayer Street (Docket Entry # 1, ¶¶ 13, 15, 20 & 22) (Docket
Entry # 1-6 & 1-7).
Addressing the latter, the Town of Millville notified
Millville about overdue taxes in 1997.

Petrillo paid these

property taxes by checks dated March 20, 1997.

Succinctly

stated, Millville, a corporation, incurred taxes which Petrillo
paid.

(Docket Entry # 1, ¶¶ 1 & 8) (Docket Entry # 1-2).

Coccoli, a shareholder or “member” of Millville since 1992
(Docket Entry # 1, ¶ 2), seeks to recover the payments.

He did

not own the land subjected to the tax until 2009 or 2010. 23
Although Millville may have suffered financial harm by paying
another entity’s taxes, Coccoli’s status as a shareholder does
not mean that he personally suffered a financial harm.

Under

the shareholder-standing rule, see Diva’s Inc. v. City of
Bangor, 411 F.3d at 42, Coccoli lacks standing to seek redress
for the payment of Millville’s taxes.
Similarly, Coccoli is neither a taxpayer nor a creditor
23

The earliest date of the bargain and sale deed is October 8,
2009. See fn. 19. In any event, the parties should not assume
that ownership of the land would necessarily confer standing.
19

with respect to the 1997 payments.

At the time Coccoli filed

the complaint, he did not own the debt or an assigned cause of
action to recover the allegedly erroneous payment.

See

generally Becker v. Federal Election Commission, 230 F.3d 381,
387 (1st Cir. 2000) (standing is “‘assessed under the facts
existing when the complaint is filed’”).

The plain terms of the

bargain and sale deed only conveyed “certain land” to Coccoli.
Millville or Petrillo, as opposed to Coccoli, would recover the
erroneous payment.

Coccoli therefore lacks an injury in fact

redressable if this court ruled in his favor.
Turning to the second injury, it is well settled that a
party to a contract as well as a third party beneficiary to a
contract have standing to sue for breach of contract.

Katz v.

Pershing, LLC, 672 F.3d at 72 (“invasion of a common-law right
(including a right conferred by contract) can constitute an
injury sufficient to create standing”); Pollak v. Federal
Insurance Co., 2013 WL 6152335, at *3 (D.Mass. Nov. 21, 2013)
(although “intended beneficiary of a promise has standing to
enforce a duty of performance, an incidental beneficiary
acquires no rights against the contracting parties”) (citing
Miller v. Mooney, 725 N.E.2d 545, 549-550 (Mass. 2000)); see
also Hein v. Freedom from Religion Foundation, Inc., 551 U.S.
587, 642 (2007) (“[i]n the case of economic . . . harms, of
course, the ‘injury in fact’ question is straightforward”).

20

At

this stage in the proceeding, a plaintiff makes the required
showing of an injury to his rights when the complaint “generally
alleges the existence of a contract, express or implied, and a
concomitant breach of that contract.”

Katz v. Pershing, LLC,

672 F.3d at 72.
In the case at bar, the September 2008 and January 2009
purported joint venture agreements identify the contracting
parties as Millville and “FREDAP Realty, Inc.”
1-6 & 1-7).

(Docket Entry ##

At that time, Coccoli did not own the land conveyed

under the bargain and sale deed and the language of these
documents fails to show that Millville and “FREDAP Realty Inc.”
“clearly and definitely intended” their performance to benefit
Coccoli.

See Miller v. Mooney, 725 N.E.2d 545, 550 (Mass. 2000)

(language and circumstances must show that “parties to the
contract clearly and definitely intended the beneficiaries to
benefit from the promised performance”) (internal quotation
marks and brackets omitted); Anderson v. Fox Hill Village
Homeowners Corp., 676 N.E.2d 821, 822-823 (Mass. 1997);
Restatement (Second) of Contracts § 302 (1981); Pollak v.
Federal Insurance Co., 2013 WL 6152335, at *3.

On or about

October 15, 2010, however, Coccoli, Petrillo and D’Arcangelo met
with “Daprato, John Daprato, and FREDAP” and “verbally agreed to
partner and develop the parcels of land.”
20).

(Docket Entry # 1, ¶

Under the October 8, 2010 bargain and sale deed (Docket

21

Entry # 1-10), Coccoli acquired Millville’s title to the land
granted from Jacob to Millville (book 14943, page 153).
“Daprato/FREDAP[,] Inc.” however “refused to honor the terms and
conditions of their agreement” in July 2013.
¶ 22).

(Docket Entry # 1,

A few months later, Coccoli filed this action.

Liberally construing the pro se complaint, see Rice v. Holder,
898 F.Supp. at 294 n.2, and considering the other documents in
the record, Coccoli sufficiently alleges a contract and its
breach.

Having shown an injury to his rights, he has standing

to pursue the breach of contract claim.
II.

Motions for Real Estate Attachment (Docket Entry ## 18 &

21)
In two separate motions, Coccoli seeks to attach real
estate owned by Daprato, FREDAP Realty Trust and/or FREDAP, Inc.
up to the amount of $411,000.00.

(Docket Entry # 18 & 21).

The

$411,000.00 figure represents the amount of taxes Petrillo paid
for Millville purportedly on the Blake land and the Thayer land
for the 1993 to 1997 time period and interest and costs from
1997 through 2012.
5).

(Docket Entry # 18-1) (Docket Entry # 1, p.

The first attachment motion lists 23 properties owned by

one or more defendants, including two parcels at 148 Thayer
Street, which Coccoli seeks to attach.
the necessary affidavit.

The motion also includes

(Docket Entry # 18-1).

Defendants submit that Millville did not pay any taxes on

22

the Blake land and the Thayer land located at 154 Thayer Street.
Hence, as argued at the hearing, Coccoli does not have a
reasonable likelihood of success on the merits.
DISCUSSION
Federal Rule of Civil Procedure 64 allows for remedies,
including attachment, as provided for under “the law of the
state where the court is located.”

Rule 4.1 sets out the

applicable Massachusetts law applicable to attachment.
Mass.R.Civ.Proc. 4.1; see Mass. Gen. Laws ch. 223, § 42; Micro
Signal Research, Inc. v. Otus, 417 F.3d 28, 30 n.1 (1st Cir.
2005).

A prejudgment attachment authorizes a seizure of

“property of the defendant to be held as security for any
judgment the plaintiff may recover.”

Mullane v. Chambers, 333

F.3d 322, 329 (1st Cir. 2003); see also Micro Signal Research,
Inc. v. Otus, 417 F.3d at 30 n.1 (explaining distinction between
attachment and trustee process); see, e.g., Solans v. McMenimen,
951 N.E.2d 999, 1004 (Mass.App.Ct. 2011) (upholding attachment
of “‘all of the right, title and interest of the within named
defendant . . . has in and to any and all real estate located
within the County of Hampshire”).
Under Rule 4.1(c), “property may be attached for a
specified amount ‘upon a finding by the court that there is a
reasonable likelihood that the plaintiff will recover judgment,
including interest and costs, in an amount equal to or greater

23

than the amount of the attachment over and above any liability
insurance’ possessed by defendants.”

U.S. Fidelity and Guaranty

Co. v. Arch Insurance Co., 578 F.3d 45, 49 (1st Cir. 2009).
“[T]he central question on [a] motion for approval of attachment
is whether plaintiffs are likely to prevail on the merits and
obtain damages in the necessary amount.”
quotation marks and citations omitted).

Id. at 52 (internal
Plaintiff bears the

burden to demonstrate a reasonable likelihood of success on the
merits.

See Greenbriar Companies, Inc. v. Springfield Terminal

Railway, 477 F.Supp.2d 314, 317 (D.Mass. 2007).

Defendants bear

the burden to show “the availability of liability insurance to
Id.; Mass. R. Civ. P. 4.1(c).

satisfy the judgment.”

In seeking an attachment, a plaintiff “must submit
affidavits setting forth ‘specific facts sufficient to warrant
the required findings based upon the affiant’s own knowledge,
information or belief.’”

Metropolitan Property and Casualty

Insurance Co. v. Boston Regional Physical Therapy, Inc., 550
F.Supp.2d 199, 201-202 (D.Mass. 2008) (quoting Mass.R.Civ.P.
4.1(h)); Mass.R.Civ.P. 4.1(c) (“motion shall be supported by
affidavit or affidavits meeting the requirements set forth in
Rule 4.1(h)”).

The affidavit and the first attachment motion

seek an attachment based on the indebtedness in property taxes
paid for 1993 to 1997 and the costs and interests thereafter
through 2012.

(Docket Entry ## 18 & 18-1); see also Mahoney v.

24

Morgan, 2010 WL 3703243, at *2.

The second attachment motion

does not elucidate the basis for an attachment as either the tax
indebtedness claim or the breach of the joint venture agreement
claim.

Id.

As explained in the previous section, Coccoli lacks
standing to pursue the tax indebtedness claim.

Accordingly,

there is no reasonable likelihood of success on the merits for
that claim.
In the alternative, even if plaintiff had standing, the
facts in the record do not demonstrate a reasonable likelihood
of success that Petrillo paid taxes for property owned by
Daprato, as trustee of FREDAP Realty Trust.

The record includes

disputed chains of title emanating from the Pomfrets.

The

Pomfrets conveyed different descriptions of 103 acres of
property to Jacob and thereafter to Millville for land lying
westerly of Thayer Street than they did for the Thayer land of
30 acres and the Blake land of 40 acres conveyed to DiMaio,
Johnston and Gold and thereafter to Fred and John Daprato and
then to Daprato, as trustee of FREDAP Realty Trust.
The tax deed recorded by the Town of Millville in November
1994 reflects that Millville was delinquent in paying taxes for
1993 and 1994 for property located at 179 Thayer Street
consisting of 76 acres as described in the 1992 deed from Jacob

25

to Millville. 24

A March 24, 1997 instrument of redemption filed

by the Town of Millville acknowledges satisfaction of the tax
title account.

In contrast, the tax deed recorded by the Town

of Millville in May 1997 reflects that Daprato, as trustee of
FREDAP Realty Trust, was delinquent in paying taxes for 1995 and
1996 for property located at 154 Thayer Street consisting of
slightly less than 70 acres.

The instrument of redemption filed

by the Town of Millville acknowledges that Daprato, as Trustee
of FREDAP Realty Trust, satisfied this tax title account in
2001.

Finally, the Tax Collector interprets the March 20, 1997

checks signed by Petrillo as paying property taxes on the
property located at 179 Thayer Street and the 2001 payment by
Daprato as paying property taxes on the property located at 154
Thayer Street.

These as well as additional facts in the record

establish that Coccoli fails in his burden to establish a
reasonable likelihood of success on the tax indebtedness claim.
Coccoli does not raise the breach of contract claim as a
basis for an attachment.

Even if he did, however, there is no

showing of a reasonable likelihood of success.
In order to establish a contract claim under Massachusetts
law, “‘the plaintiff must prove that a valid, binding contract

24

As previously explained, the 1992 deed (book 14943, page 153)
does not include the acreage of the property whereas the
predecessor deed (book 5393, page 276) identifies acreage of 103
acres of the property.
26

existed, the defendant breached the terms of the contract, and
the plaintiff sustained damages as a result of the breach.’”
Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 232 (1st Cir.
2013) (internal brackets omitted); accord Bose Corp. v. Ejaz,
732 F.3d 17, 21 (1st Cir. 2013).

Even assuming that the January

2009 document was a contract, Coccoli fails to show he was a
party to that joint venture agreement.

The agreement

unequivocally states that it is “between Millville . . . and
FREDAP Realty, Inc.”

(Docket Entry # 1-7).

More than a year later, Millville conveyed to Coccoli all
of its right and title to the land it received in the 1992 deed
from Jacob (book 14943, page 153).

(Docket Entry # 1-10).

Thereafter, on October 15, 2010, Coccoli, Petrillo and
D’Arcangelo “of Millville” met with “Daprato, John Daprato, and
FREDAP.”

(Docket Entry # 1, ¶ 20).

“The parties, again, shook

hands and verbally agreed to partner and develop the parcels of
land.”

(Docket Entry # 1, ¶ 20).

At a hearing in the Land

Court on July 18, 2013, however, “Daprato/FREDAP Inc.” refused
to abide by the terms and conditions of the verbal agreement.
(Docket Entry # 1, ¶ 22).
As previously explained, affidavits submitted in support of
an attachment must “set forth specific facts.”
4.1(h).

Mass.R.Civ.P.

The foregoing statements are conclusory as opposed to

specific.

27

Coccoli also fails to show a reasonable likelihood of
success that that parties had a binding contract, that Daprato
or FREDAP breached the terms of the agreement or that Coccoli
suffered damages as a result of the breach.

Furthermore, viewed

against the backdrop of the January 2009 joint venture
agreement, the fact that “[t]he parties, again, shook hands”
(Docket Entry # 1, ¶ 20) (emphasis added) coupled with referring
to Coccoli, Petrillo and D’Arcangelo “of Millville” creates
doubt as to whether Coccoli is a party to the agreement.

At

this juncture, Coccoli also fails to show a reasonable
likelihood of success that he is an intended third party
beneficiary of the verbal agreement as opposed to an incidental
beneficiary.

See generally Alicea v. Machete Music, 744 F.3d

773, 784-787 (1st Cir. 2014).

Failing to show a reasonable

likelihood that he will recover a judgment on the breach of
contract claim, he is not entitled to a prejudgment attachment.
Separately, he also fails to argue, let alone show, the amount
of a recovery on the breach of contract claim.

See, e.g.,

Energy Power Co. Ltd. v. Xiaolong Wang, 2013 WL 6234625, at *11
(D.Mass. Dec. 3, 2013) (denying attachment because, although
court “found a likelihood of success,” the plaintiffs failed to
show “the amount of that recovery”).
CONCLUSION
In accordance with the foregoing discussion, the motion to

28

dismiss (Docket Entry # 28) is ALLOWED as to the tax
indebtedness claim and DENIED as to the breach of contract
claim.

This action will proceed only with respect to the claim

for breach of a joint venture agreement.

The motions for a

prejudgment attachment (Docket Entry ## 18 & 21) are DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

29