Malaro et al v. Wilkie, Jr. et al
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER - For the foregoing reasons, plaintiffs' motion to dismiss (Docket No. 13 ) is ALLOWED, in part, and DENIED, in part. Count II of defendant's counterclaim remains viable but Count III is DISMISSED. (Currie, Haley)
Case 1:22-cv-10548-NMG Document 16 Filed 05/19/23 Page 1 of 8
United States District Court
District of Massachusetts
Roger Wilkie, Jr., Builder, Inc., )
Magie Malaro and Anthony Malaro,
Civil Action No.
MEMORANDUM & ORDER
Plaintiffs Magie and Anthony Malaro (“the Malaros” or
“plaintiffs”) bring this action for alleged defective renovation
work performed at their residence at 922 Drift Road, Westport,
Massachusetts by defendant Roger Wilkie, Jr., Builder, Inc.
(“RWB” or “defendant”).
The Malaros claim breach of contract,
conversion, violations of Massachusetts General Laws Chapters
93A and 142A and breach of the implied warranty of good
Pending before the Court is plaintiffs’ motion to
dismiss two of defendant’s three counterclaims.
The facts of this case have been described in the earlier
Memorandum and Order addressing defendant’s motion to dismiss
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and thus the Court will summarize here only the salient facts
relevant to plaintiff’s motion.
The Malaros decided to renovate
their Westport residence in about 2020.
According to the
complaint, they hired RWB but never executed a written contract
pursuant to M.G.L. Chapter 142A.
Rather, the Malaros drafted a
“scope of work” dated August 22, 2020, explaining the parameters
of the project which was supposed to be completed by April,
Plaintiffs allege a litany of problems with the renovation.
They claim that RWB was uncommunicative, made insufficient
progress on the renovations and those that were performed were
By February, 2022, the renovation remained
incomplete and the costs incurred exceeded the estimated budget.
At the time the Malaros terminated their relationship with RWB,
they had paid him approximately $269,000 for an unfinished
renovation that had been estimated to cost $175,000.
In April, 2022, the Malaros filed a six-count complaint in
this Court, based upon diversity jurisdiction, against Roger
Wilkie, Jr. (“Wilkie”) individually and as owner of RWB.
complaint alleges: 1) breach of contract, 2) fraudulent
misrepresentation, 3) conversion, 4) violation of M.G.L. c.
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142A, 5) violation of M.G.L. c. 93A and 6) breach of the implied
warranty of good workmanship.
Defendants moved to dismiss the complaint for lack of
subject matter jurisdiction and failure to state a claim as to
Wilkie’s individual liability and the fraudulent
In November, 2022, this Court
dismissed the claims against Wilkie in his individual capacity
as well as the fraudulent misrepresentation claim.
RWB then promptly answered the complaint and filed three
counterclaims for: 1) breach of contract, 2) unjust enrichment
and 3) violation of M.G.L. c. 93A § 9.
In the pending motion,
plaintiffs move to dismiss the claims for unjust enrichment and
violation of M.G.L. c. 93A § 9.
Motion to Dismiss
To survive a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), the subject pleading must 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, 678 (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
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misconduct alleged.” Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 678).
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
A court also may not disregard properly pled
factual allegations even if “actual proof of those facts is
improbable.” Ocasio-Hernandez, 640 F.3d at 12 (quoting Twombly,
550 U.S. at 556).
Rather, the necessary “inquiry focuses on the
reasonableness of the inference of liability that the plaintiff
is asking the court to draw.” Id. at 13.
The assessment is
the complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation,
in isolation, is plausible.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013)
(quoting Ocasio-Hernandez, 640 F.3d at 14).
As an initial matter, defendant acknowledges at the outset
of its opposition brief that it would have voluntarily dismissed
Count III of its counterclaim had a Local Rule 7.1 conference
Because RWB conceded that point, Count III of the
counterclaim will be dismissed.
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The parties’ dispute relates primarily to defendant’s
unjust enrichment counterclaim.
The Malaros move to dismiss
this counterclaim, arguing that it is precluded by RWB’s breach
of contract counterclaim in Count I.
In response, RWB explains
that because the parties disagree as to the existence of an
enforceable contract, it should be permitted to pursue, for the
time being, its counterclaims for breach of contract and, in the
alternative, unjust enrichment.
Under Massachusetts law, a plaintiff may recover for unjust
enrichment upon a showing that 1) plaintiff conferred a benefit
upon the defendant, 2) the defendant accepted that benefit and
3) the defendant’s retention of the benefit would be inequitable
without payment for its value. Mass. Eye & Ear Infirmary v. QLT
Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir. 2009).
A plaintiff with an adequate remedy at law cannot recover
for unjust enrichment. Tomasella v. Nestlé USA, Inc., 962 F.3d
60, 82 (1st Cir. 2020) (quoting Shaulis v. Nordstrom, Inc., 865
F.3d 1, 16 (1st Cir. 2017)).
Litigants are therefore not
permitted “to override an express contract by arguing unjust
enrichment.” Shaulis, 865 F.3d at 16 (quoting Platten v. HG
Bermuda Exempted Ltd., 437 F.3d 118, 130 (1st Cir. 2006)).
Importantly, the “availability of a remedy at law, not the
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viability of that remedy” prohibits a claim of unjust
Here, however, both parties vehemently dispute the
existence of an enforceable contract and have changed their
position on the issue multiple times in their various pleadings
before this Court and the Bristol County Superior Court in Rhode
Plaintiffs state in their complaint
Wilkie never provided the Malaros with a written
contract pursuant to Chapter 142A.
They base their motion to dismiss, however, on defendant’s
allegation that a “valid and binding written agreement existed.”
With respect to pleading breach of contract and unjust
enrichment in the alternative, the First Circuit Court of
Appeals has held that
it is accepted practice to pursue both theories at the
Lass v. Bank of Am., N.A., 695 F.3d 129, 140 (1st Cir. 2012)
(citing Vieira v. First Am. Title Ins. Co., 668 F. Supp. 2d 282,
294-95 (D. Mass. 2009) (stating that Federal Rule of Civil
Procedure 8(d) “permits Plaintiffs to plead alternative and even
inconsistent legal theories, such as breach of contract and
unjust enrichment, even if Plaintiffs only can recover under one
of these theories”)).
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Because there is no consensus as to whether a contract
between the parties even exists at this juncture and thus
whether a claim of breach of contract is available, it is
premature to dismiss defendant’s unjust enrichment counterclaim.
See Tomasella, 962 F.3d at 84 (reinstating both plaintiff’s
breach of contract and unjust enrichment claims for further
factual development because ambiguity in the contract “casts
doubt on whether a breach of contract claim was indeed available
as a legal remedy”).
RWB will eventually need to choose which theory of
counterclaim to pursue but there is “no need to do so at this
early stage in the litigation.” Tactician Corp. v. Subway Int’l,
Inc., No. CV 21-10973-JGD, 2021 WL 5640695, at *9 (D. Mass. Dec.
1, 2021) (citing Aware, Inc. v. Centillium Commc’ns, Inc., 604
F. Supp. 2d 306, 312 (D. Mass. 2009) (finding “no reason to
require plaintiff to choose a theory of recovery” at the
pleading stage and noting that “courts have been flexible
regarding when they require this choice to be made”)).
Accordingly, RWB may counterclaim for both breach of
contract and unjust enrichment in the alternative. See Lass, 695
F.3d at 140.
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For the foregoing reasons, plaintiffs’ motion to dismiss
(Docket No. 13) is ALLOWED, in part, and DENIED, in part.
II of defendant’s counterclaim remains viable but Count III is
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated May 19, 2023
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