APB Realty, Inc. v. Georgia-Pacific LLC et al

Filing 58

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the forgoing reasons, defendants motion to dismiss Count I of plaintiffs amended complaint (Docket No. 52) is ALLOWED.(Caruso, Stephanie)

United States District Court
District of Massachusetts

APB Realty, Inc.,
Plaintiff,
v.
Georgia-Pacific LLC,
Defendant.

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Civil Action No.
15-13142-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of discussions regarding a potential
purchase of 88 railroad cars by plaintiff APB Realty, Inc.
(“plaintiff” or “APB”) from defendant Georgia-Pacific LLC
(“defendant” or “Georgia-Pacific”).
Pending before the Court is defendant’s motion to dismiss
for failure to state a claim upon which relief can be granted.
For the reasons that follow, defendant’s motion will be allowed.
I.

Background
In or about April, 2015, Georgia-Pacific and APB entered

into negotiations for the sale and purchase of 88 railroad cars.
Specifically, on April 24, 2015, Georgia-Pacific sent an e-mail
to APB soliciting an offer for the subject cars.
In order to facilitate the sale of the railroad cars,
Georgia-Pacific retained Liquidity Services, Inc. (“Liquidity”)

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as its broker.

Thereafter, on June 24, 2015, Liquidity e-mailed

APB the following:
Thank you [APB] for your call this morning. I wanted
to review my understanding of your offer for all of
the railcars for [Georgia-Pacific].
Please review and confirm that I have understood your
offer correctly . . . .
Total for all 88 x Log Stake Railcars $1,636,000
(Including 16% Buyer’s Premium).
Please respond with a confirmation so that I have
something in writing detailing your offer.
(emphasis in original).1
After further discussions between APB and Liquidity,
Liquidity e-mailed APB on July 23, 2015, that it had “presented
[APB’s] offer to [Georgia-Pacific] for final approval.”

Shortly

thereafter, Liquidity sent the following e-mail to APB:
Here are the two options that [Georgia-Pacific] has
brought back to close the deal on.
Option 1, basically states that for $61K, you buy
insurance that will replace as many Southern Wheels as
needed to eliminate that problem. [Georgia-Pacific]
will manage and take care of that issue. So after any
real costs, you are paying a small percentage as
insurance against the number being larger than 51
wheel sets.
Option 2 is the deal with you taking responsibility
for any Southern Wheels.

Because plaintiff attached the e-mails referred to here to its
amended complaint, they are considered part of the pleadings for
the purpose of a motion to dismiss. See Rederford v. U.S.
Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009).
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Let me know which deal is best for you, and I’ll get
this closed out as early as possible next week.
Option 1:
Sale of the railcars (78 ea. 50 yr. Cars, 10 ea. 40 yr
cars)
As is, where is.
Georgia-Pacific assumes responsibility for the
replacement of all southern wheels if found.
Customer retains responsibility for transportation to
final destination.
Proposed Offer: $1,697,000[.]
Option 2:
Sale of the railcars (78 ea. 50 yr. Cars, 10 ea. 40 yr
cars)
As is, where is.
Customer assumes responsibility for the replacement of
all southern wheels if found.
Customer retains responsibility for transportation to
final destination.
Proposed Offer: $1,636,000[.]
On July 27, 2015, APB replied “[W]e are leaning towards
option 1, should know this afternoon.”
While those discussions were ongoing, APB purportedly
entered into an agreement with another company, Beasley Forest
Products, Inc. (“Beasley”) to resell the cars it was negotiating
to buy from Georgia-Pacific.

Unbeknownst to APB, however,

Georgia-Pacific was also negotiating with Beasley to sell it the
88 railroad cards directly.

The APB-Georgia-Pacific deal was

never consummated.
Plaintiff promptly filed a complaint against GeorgiaPacific, Liquidity and Beasley in the Massachusetts Superior
Court for Barnstable County.

On August 12, 2015, the case was

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removed to this Court on diversity grounds.

In October, 2015,

APB filed an amended complaint, asserting five-counts against
the three defendants for breach of contract, fraudulent
misrepresentation and interference with business relationships.
Approximately one year later, in September, 2016, this
session accepted and adopted a Report and Recommendation from
United States Magistrate Judge Judith G. Dein resulting in the
dismissal of Liquidity and Beasley from the case.
Finally, in December, 2016, Georgia-Pacific filed a motion
to dismiss the single claim against it for failure to state a
claim upon which relief can be granted.

That motion is the

subject of this memorandum.
II.

Defendant’s Motion to Dismiss
A.

Legal Standard

To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d

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1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
B.

Application

Defendant moves to dismiss Count I of plaintiff’s amended
complaint on grounds that plaintiff has failed to allege
acceptance of an offer.

The crux of this dispute is whether, as

alleged in the complaint, the e-mail from Liquidity to APB,
dated July 23, 2015 and extensively quoted above, was an
acceptance of ABP’s offer to buy 88 railroad cars or a counteroffer that required acceptance by ABP.
Plaintiff contends, and e-mails attached to the complaint
support its contention, that on June 24, 2015, ABP e-mailed
Liquidity an offer to buy 88 railroad cars from Georgia-Pacific
for a total purchase price of $1,636,000.

In July, Liquidity

responded on behalf on Georgia-Pacific, proposing two
alternatives, the second of which corresponded to the offer

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proposed by ABP.

The first option, however, proposed the sale

of the 88 railroad cars plus an amount for insurance for wheel
replacement.

The total sale price of that option was

$1,697,000, $61,000 more than ABP’s original offer.
Because Georgia-Pacific included an additional term that
was not in ABP’s original offer, its July, 2015, response
constituted a counter-offer not an acceptance. See McGurn v.
Bell Microproducts Inc., 284 F.3d 86, 89 (1st Cir. 2002) (“A
reply to an offer which purports to accept it but is conditional
on the offeror’s assent to terms additional to or different from
those offered is not an acceptance but is a counter-offer.”
(quoting Restatement (Second) of Contracts § 59 (1981))).
Plaintiff has not alleged that it ever accepted GeorgiaPacific’s counteroffer.

Thus, plaintiff has not stated a claim

for breach of contract. See D’Agostino v. Fed. Ins. Co., 969 F.
Supp. 2d 116, 127 (D. Mass. 2013) (“[A]n offer must be matched
by an acceptance.

A counteroffer proposing a term that is

materially different from that contained in the original offer
constitutes a rejection of the offer and negates any agreement.”
(quoting Kennedy v. JP Morgan Chase Nat’l Corp., No. 10–CV–
11324, 2011 WL 1576569, at *2 (D. Mass. Apr. 26, 2011))).
Accordingly, Count I of plaintiff’s amended complaint will
be dismissed.

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ORDER
For the forgoing reasons, defendant’s motion to dismiss
Count I of plaintiff’s amended complaint (Docket No. 52) is
ALLOWED.
So ordered.
/s/ Nathaniel M. Gorton
d
Nathaniel M. Gorton
United States District Judge
Dated August 10, 2017

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