C.A. Acquisition Newco LLC v. DHL Express (USA), Inc.

Filing 32

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Defendants Motion for Judgment on the Pleadings (Dkt. No. 25 ) is hereby ALLOWED as to Count III and DENIED as to Counts I, II, IV, V, and VI. Plaintiffs Cross- Motion for Partial Ju dgment on the Pleadings (Dkt. No. 28 ) is hereby ALLOWED. Counsel will submit a joint written status report with a proposal for future proceedings no later than August 15, 2011. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

C.A. ACQUISITION NEWCO LLC, )
Plaintiff
)
)
v.
)
)
DHL EXPRESS (USA), INC.,
)
Defendant
)

C.A. No. 10-cv-30177-MAP

MEMORANDUM AND ORDER REGARDING
DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
AND PLAINTIFF’S CROSS-MOTION
FOR PARTIAL JUDGMENT ON THE PLEADINGS
(Dkt. Nos. 25 & 28)
July 7, 2011
PONSOR, D.J.

I.

INTRODUCTION

Plaintiff C.A. Acquisition Newco LLC sues Defendant DHL
Express (USA), Inc. for, inter alia, breaching a 2006
contract between Defendant and Cyphermint, Inc., a software
development company whose assets Plaintiff later purchased.
Defendant now moves for judgment on the pleadings on all six
counts (Dkt. No. 25) and Plaintiff moves for judgment on the
pleadings as to Count I (Dkt. No. 28).

For the reasons

stated below, Defendant’s Motion for Judgment on the

Pleadings (Dkt. No. 25) will be allowed as to Count III and
otherwise denied.

Plaintiff’s Cross-Motion for Partial

Judgment on the Pleadings (Dkt. No. 28) will be allowed.
II.
A.

FACTUAL BACKGROUND

The Parties.
Plaintiff C.A. Acquisition Newco LLC is a Delaware LLC

with a principal place of business in New York and is the
successor in interest to Cyphermint, Inc. (“Cyphermint” or
“CI”), a New York corporation specializing in software
development for self-service kiosks.

Defendant DHL Express

(USA), Inc. is an Ohio corporation with a principal place of
business in Florida.

Defendant is a division of DHL

International GmBH, a Deutsche Post Company and express
carrier of documents and freight.

Until 2008, Defendant

provided express pick-up and delivery, including same-day
air delivery, of letters and packages throughout the United
States.
B.

The Contract.
On August 1, 2006, Defendant entered into an agreement

with Cyphermint, which was memorialized in a Master Services
Agreement (“MSA”) and Statement of Work (“SOW”),
2

collectively referred to as “the Contract.”

Defendant

entered into the Contract hoping to expand its customer base
by offering domestic shipping services in retail locations,
such as Walgreens and OfficeMax, via kiosks, or “Shipping
Spots.”

Customers were able to use the kiosks’ user-

friendly touch screens to pay for shipping costs and print
shipping labels.

Customers could then leave the labeled

package in the designated receptacle for delivery.
The Contract provided for an initial three-year term
(August 1, 2006, through July 31, 2009) that automatically
renewed for two more years unless either party gave notice
of its election not to renew ninety days before the end of
the initial contract.

Under the Contract, Cyphermint agreed

to provide (1) interactive software enabling customers to
use Defendant’s services from the shipping spots and (2)
advertising software for Defendant’s retail partners.
Cyphermint received $0.35 for each transaction and shared
revenues from any coupons or advertisements with Defendant.
Of most significance to this case is Section 10 of the
MSA, which governs termination of the Contract.
10.3 reads:
3

Section

Termination of DHL Shipping Spot Project. In
addition to the other termination rights set forth
in this Section 10, CI may terminate CI Services
in the event that DHL elects to cease supporting
the DHL Shipping Spot Project.
(Dkt. No. 29, Ex. 3, MSA ¶ 10.3.)

Section 10.5 governs

termination fees:
Termination Fees. There shall be no termination
fees for any termination by either party,
irrespective of the reason for such termination,
except for a “Material Breach” or as provided
pursuant to the “Statement of Work.”
(Id. at ¶ 10.5.)

The SOW contains the following provision

concerning termination fees:
Should DHL terminate this agreement for any reason
other than a material breach by Cyphermint before
its termination date DHL agrees to compensate CI
in the amount of $50,000 per month for each month
remaining in the initial term.
(Dkt. No. 29, Ex. 4, SOW at 16.)

Plaintiff suggests that

this $50,000 per month termination fee was drafted to
protect its predecessor Cyphermint’s considerable up-front
investment in software development.

Consequential damages,

including lost profits, are not at issue in this case, as
the Contract expressly excludes any such damages.
29, Ex. 3, MSA ¶ 9.1.)
C.

Termination.
4

(Dkt. No.

In August 2008, in the midst of the downward spiral of
the global economy, Cyphermint’s creditors filed an
involuntary bankruptcy petition against it.

A month later,

Cyphermint’s assets, including the Contract, were sold to
Plaintiff, the highest bidder, for $161,500 and an earn-out
equal to one percent of gross revenues for 2009 and 2010.
In purchasing these assets, Plaintiff assumed Cyphermint’s
obligations, rights, and liabilities under the Contract.
Later that year, as a further result of the global
recession and weak economy, Defendant decided to discontinue
all domestic delivery services within the United States.

In

November 2008, Plaintiff learned of this plan, which would
necessarily eliminate all shipping spots, and on November
12, Plaintiff’s counsel sent a letter requesting that
Defendant “kindly confirm that DHL intends to terminate the
agreement on Friday, November [21], 2008, at 3:00 p.m. EST.”
(Dkt. No. 19, Am. Compl. ¶ 35.)

On November 16, Defendant

responded that “shipping will cease on November 21.”
37.)

(Id. ¶

On December 8, Plaintiff sent a letter confirming the

termination and requesting early termination fees in the
amount of $413,333.33.

Defendant refused to pay, and this
5

litigation ensued.
III. PROCEDURAL BACKGROUND
Plaintiff filed a complaint on July 27, 2010, in
Berkshire County Superior Court,1 and Defendant removed the
action to this court shortly thereafter.

Plaintiff’s

amended complaint contains the following counts: (I) breach
of contract; (II) breach of the implied covenant of good
faith and fair dealing; (III) unjust enrichment; (IV)
violation of the Florida Deceptive and Unfair Trade
Practices Act; (V) breach of express warranty; and (VI)
violation of Mass. Gen. Laws ch. 93A.

Defendant now moves

for judgment on the pleadings on all counts, and Plaintiff
moves for judgment on the pleadings as to Count I.
IV.
A.

DISCUSSION

Legal Standard.
A motion for judgment on the pleadings pursuant to Fed.

R. Civ. P. 12(c) is evaluated much like a motion to dismiss
under Rule 12(b)(6).

Perez-Acevedo v. Rivero-Cubano, 520

F.3d 26, 29 (1st Cir. 2008).

“Because a Rule 12(c) motion

1

Defendant has consented to personal jurisdiction in
Massachusetts. (Dkt. No. 29, Ex. 3, MSA ¶ 11.4.)
6

calls for an assessment of the merits of the case at an
embryonic stage, the court must view the facts contained in
the pleadings in the light most favorable to the nonmovant
and draw all reasonable inferences therefrom.”
(citation omitted).

Id.

“Under Bell Atlantic v. Twombly, 550

U.S. 544, 127 S. Ct. 1955, 1965, 167 L.Ed.2d 929 (2007), to
survive a Rule 12(b)(6) motion (and, by extension, a Rule
12(c) motion), a complaint must contain factual allegations
that ‘raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint
are true.’”
B.

Id.

Count I: Breach of Contract.
Florida law governs the Contract.

MSA ¶ 11.4.)

(Dkt. No. 29, Ex. 3,

Under Florida law, the elements of a breach of

contract are (1) a valid contract, (2) a material breach,
and (3) damages.

Abbott Lab., Inc. v. Gen. Elec. Capital,

765 So.2d 737, 740 (Fla. 5th D.C.A. 2000).

“[T]he

interpretation of a written contract is a matter of law to
be determined by the court.”

DEC Elec., Inc. v. Raphael

Const. Corp., 558 So.2d 427, 428 (Fla. 1990).

“[T]he

language used in a contract is the best evidence of the
7

intent and meaning of the parties.”

Merin Hutner Codman,

Inc. v. Wackenhut Corr. Corp., 941 So.2d 396, 398 (Fla. 4th
D.C.A. 2006) (citation omitted).

When contractual language

is clear and unambiguous, courts must construe the document
“as written,” and terms must be given their plain meaning.
Id.
Plaintiff argues that Defendant breached the Contract
by ceasing all shipments under the Contract prior to its
expiration and failing to pay the resultant termination fees
pursuant to Section 10.5.

Under Section 10.5, termination

fees only arise in case of “a ‘Material Breach’ or as
provided pursuant to the ‘Statement of Work.’” (Dkt. No. 29,
Ex. 3, MSA ¶ 10.5.)

The SOW states, “[s]hould DHL terminate

this agreement for any reason other than a material breach
by Cyphermint before its termination date DHL agrees to
compensate Cyphermint in the amount of $50,000 per month for
each month remaining in the initial term.”
Ex. 4, SOW at 16.)

(Dkt. No. 29,

Given Defendant’s concession that it did

not terminate the agreement as a result of a material breach

8

by Cyphermint,2 Plaintiff reasons that Defendant was
obligated to pay Plaintiff $50,000 per month for the
remainder of the initial term.
Defendant responds that it never “terminated” the
agreement and that, rather, it merely reduced the number of
shipping spots pursuant to express language in the Contract.
Defendant points to Section 2.8 of the MSA:
Limitations on Scope of Obligations. Nothing in
this Agreement guarantees the number or placement
of DHL Shipping Spot(s). DHL hereby acknowledges
that the number of DHL Shipping Spots, [and] the
placement, movement, and/or access of such units
is solely within the discretion of DHL. . . .
(Dkt. No. 29, Ex. 3, MSA ¶ 2.8.)

Accordingly, Defendant

argues that “[w]hen DHL made the global decision to cease
its entire United States operations, it exercised its
contractual discretion to limit its business with Newco to
zero.”

(Dkt. No. 26, Def.’s Mem. Supp. at 1.)

Plaintiff has the stronger argument.

Contrary to

Defendant’s interpretation, finding that Defendant
terminated the agreement by ending its support for the
2

Defendant’s answer admits that Cyphermint “fully
performed under the DHL Contract and at no time was in
material breach of the contract.” (Dkt. No. 19, Am. Compl.
¶ 31; Dkt. No. 24, Answer ¶ 31.)
9

shipping spot project does not render meaningless Section
2.8.

Section 2.8 vests Defendant with the discretion to

control the number and placement of the shipping spots, but
it does not, as Defendant suggests, permit Defendant to stop
performing altogether for any reason or no reason, with no
consequences.

Such a construction is strained on its face

and, when placed in context, is obviously contrary to the
Contract’s intent.

It is also contrary to good sense.

The

proposition that reducing the shipping posts to zero is not
the same as “termination” is Looking-Glass logic, recalling
Humpty Dumpty’s remark that “When I use a word . . . it
means just what I choose it to mean -- neither more nor
less.”

Lewis Carroll [Charles L. Dodgson], Through the

Looking-Glass 72 (1872).
As noted, Section 10 of the Contract -- the termination
provision itself -- incorporates by reference clear language
in the SOW declaring that Defendant may not terminate the
agreement except in the case of a material breach by
Plaintiff.3

(See Dkt. No. 29, Ex. 3, MSA ¶ 10.5.)

3

Thus,

Of course, had Defendant merely reduced the scope of
the shipping spot project somewhat, rather than eliminating
it entirely, this might be a closer call.
10

viewing the document as a whole -– i.e., from the
perspective the court is obliged to take -- disposes of
Defendant’s over-labored interpretation.

See Lambert v.

Berkley S. Condo. Ass’n, 680 So.2d 588, 590 (Fla. 4th D.C.A.
1996) (“In reviewing a document, a court must consider the
document as a whole, rather than attempting to isolate
certain portions of it.”).
Notably, even if the court were to accept Defendant’s
argument that Section 2.8 gave Defendant blanket authority
to reduce or even eliminate the shipping spot project
altogether, the outcome would remain the same.

The relevant

provision in the SOW provides for termination fees without
regard to whether the termination was authorized.

The only

restriction placed on the recovery of such fees is that they
will not be available in the case of a material breach by
Cyphermint.

(Dkt. No. 29, Ex. 4, SOW at 16 (“Should DHL

terminate this agreement for any reason other than a
material breach by Cyphermint . . . .”) (emphasis added).)
Defendant next argues that deeming its action a
termination renders Section 10.3 nonsensical.
reads:
11

Section 10.3

Termination of DHL Shipping Spot Project. In
addition to the other termination rights set forth
in this Section 10, CI may terminate CI Services
in the event that DHL elects to cease supporting
the DHL Shipping Spot Project.
(Dkt. No. 29, Ex. 3, MSA ¶ 10.3.)

Defendant reasons that

Plaintiff’s interpretation would effectively rewrite this
provision to read “CI may terminate CI Services in the event
that DHL [terminates the agreement].”

Defendant concludes

that this interpretation is nonsensical and cannot be what
the drafters intended.

However, this section merely

identifies one possible remedy available to Plaintiff upon
notification that Defendant intends to terminate the
agreement: Plaintiff may stop performing as well.
Significantly, by stating “in addition to the other
termination rights set forth in this Section 10,” the
provision expressly provides that DHL’s election to end the
shipping spot project triggers Plaintiff’s “other
termination rights,” thus offering powerful support for
Plaintiff’s position.
Defendant’s final argument relies on Section 9.1, the
Contract’s limited liability provision, which prohibits
recovery of consequential damages.

12

Section 9.1 reads in

relevant part: “except as specifically set forth in the
agreement, in no event will either party be liable under any
theory of liability for any indirect, incidental, punitive,
exemplary, or consequential damages of any kind or nature
whatsoever . . . .”

(Dkt. No. 29, Ex. 3, MSA ¶ 9.1

(emphasis added, caps removed).)

As the above discussion

demonstrates, this exception undermines Defendant’s
argument, as Section 10 specifically discusses the recovery
of termination fees.
Ultimately, Defendant fails to explain how reducing the
shipping spots to zero is in any way different from
terminating the Contract.

As the Supreme Court recently

observed, “[t]he word ‘terminate’ ordinarily means ‘put an
end to.’”

Mac’s Shell Service, Inc. v. Shell Oil Prods.,

Co. LLC, 130 S. Ct. 1251, 1258 (2010) (quoting Webster’s New
International Dictionary 2605 (2d ed. 1957)).

The entire

focus of the Contract was the shipping spot project, and
Defendant does not contend that the Contract governed any
other business operation that continued after shipping
ceased.

Defendant’s statement to Plaintiff that “shipping

will cease on November 21,” (Dkt. No. 19, Am. Compl. ¶ 37)

13

immediately ended performance by both parties.

Although

Defendant did not expressly declare “DHL hereby terminates
this Contract,” its words and conduct had that very purpose
and effect.
Regardless of the label Defendant uses, the undeniable
effect of its actions was to bring the parties’ performance
to an immediate and permanent halt.

A termination by any

other name would end the contract just the same.
In sum, Defendant’s termination of the Contract
manifestly triggered Plaintiff’s termination rights,
including termination fees of $50,000 per month for the
remaining term.

(See Dkt. No. 29, Ex. 3, MSA ¶ 10.5; Dkt.

No. 29, Ex. 4, SOW at 16.)

The failure to pay such fees

constitutes a breach of contract as a matter of law.
Accordingly, Plaintiff’s motion will be allowed, and
Defendant’s motion will be denied as to Count I.4

4

Defendant has understandably not raised Section 10.4
of the MSA, which allows one party to terminate the contract
when the other party files for bankruptcy, as Cyphermint did
here. (Dkt. No. 29, Ex. 3, MSA ¶ 10.5.) This provision
contains the caveat that “either party shall not have the
right to exercise such termination so long as the other
continues to perform without interruption or a noticeable
diminution in its performance hereunder.” (Id.) There has
been no suggestion that Plaintiff was unable to perform
14

C.

Count II: Implied Covenant of Good Faith and Fair
Dealing.
“Under Florida law, the implied covenant of good faith

and fair dealing is a part of every contract.”

Burger King

Corp. v. C.R. Weaver, 169 F.3d 1310 (11th Cir. 1999).

The

covenant must relate to the performance of an express term
of the contract, and it is not “an abstract and independent
term of a contract which may be asserted as a source of
breach when all other terms have been performed pursuant to
the contract requirements.”

Id. (citation omitted).

A

cause of action for breach of the implied covenant cannot be
maintained “(a) in derogation of the express terms of the
underlying contract or (b) in the absence of breach of an
express term of the underlying contract.”

Id.

Defendant argues that Plaintiff’s cause of action for
breach of the implied covenant of good faith contradicts the
express terms of the contract and is therefore barred.

In

support, Defendant reiterates its primary contention that
the contract affords Defendant total discretion to reduce or
eliminate the shipping spot project without a penalty.

after being forced into bankruptcy.
15

However, because the express terms of the contract are not
susceptible to such an interpretation, for the reasons set
forth above, this argument must fail.
Moreover, as Plaintiff notes, the Eleventh Circuit has
made clear that the implied covenant of good faith is
implicated by an alleged abuse of discretion by one of the
contracting parties.

See Ernie Haire Ford, Inc. v. Ford

Motor Co., 260 F.3d 1285, 1291 (11th Cir. 2001) (“With the
implied covenant, one party cannot capriciously exercise
discretion accorded it under a contract so as to thwart the
contracting parties’ reasonable expectations.”).

Here,

Plaintiff asserts that in addition to breaching the
Contract, Defendant abused its discretion to limit the
number and location of shipping spots under Section 2.8 by
eliminating the project entirely and then failing to pay
Plaintiff a termination fee.

This allegation fits neatly

within the settled case law.

Consequently, Defendant’s

motion will be denied with respect to Count II.
D.

Count III: Unjust Enrichment.
“A quasi-contractual claim fails upon a showing that an

express contract exists.”

Berry v. Budget Rent-A-Car Sys.,

16

Inc., 497 F. Supp. 2d 1361, 1369 (S. D. Fla. 2007).
Plaintiff argues that its unjust enrichment claim is an
alternative inconsistent pleading, which is permitted at
this stage in the litigation.

See Fed. R. Civ. P. 8(d)(2)

(permitting alternative inconsistent pleadings).
It is true that “until an express contract is proven, a
motion to dismiss a claim for . . . unjust enrichment on
these grounds is premature.”

Borchardt v. Mako Marine

Intern., Inc., 2009 WL 3856678 (S.D. Fla. Nov. 17, 2009)
(citation omitted).

Yet, “[w]hile a party can plead breach

of contract and unjust enrichment in the alternative, a
party is nonetheless precluded from pleading unjust
enrichment where, as here, the existence of an express
contract is not in doubt.”

Validsa, Inc. v. PDVSA Servs.,

Inc., 632 F. Supp. 2d 1219, 1243 (S.D. Fla. 2009), rev’d on
other grounds, No. 10-11209, 2011 WL 1519116 (11th Cir. Apr.
21, 2011); see also Shibata v. Lim, 133 F. Supp. 2d 1311,
1318 (M.D. Fla. 2000) (“Florida law does not generally
permit a party to pursue a cause of action on an express
contract at the same time as he pursues a cause of action
for unjust enrichment.”).
Given that the parties agree on the existence of an
17

express contract, (Dkt. No. 19, Am. Compl. ¶ 7; Dkt. No. 24,
Answer ¶ 7), Defendant’s motion will be allowed with respect
to Count III.
E.

Count IV: Violation of the Florida Deceptive and Unfair
Trade Practices Act (“FDUTPA”).
The FDUTPA declares unlawful any “unfair methods of

competition, unconscionable acts or practices, and unfair or
deceptive acts or practices in the conduct of any trade or
commerce.”

Fla. Sta. § 501.204(1).

A FDUTPA claim contains

three elements: (1) a deceptive act or practice; (2)
causation; and (3) damages.

Bookworld Trade, Inc. v.

Daughters of St. Paul, Inc., 532 F. Supp. 2d 1350, 1364
(M.D. Fla. 2007).

An act likely to mislead consumers is a

“deceptive act,” and a practice that is immoral, unethical,
oppressive, unscrupulous, or substantially injurious to
consumers is an “unfair practice” under FDUTPA.

Id.

Plaintiff alleges that it was induced to accept payment
for its services via a per-transaction fee, with the promise
of early termination fees (rather than up-front development
and licensing fees) if Defendant abandoned the project.
Plaintiff asserts that Defendant’s inducement, in
conjunction with its subsequent refusal to honor the terms
18

of the Contract, constitutes a violation of FDUTPA.
In response, Defendant incorrectly asserts that the Act
only protects individual consumers.

In fact, “consumer” is

“broadly defined” such that the act applies “to any act or
practice occurring in the conduct of any trade or commerce
even as between purely commercial interests.”5
Trade, Inc., 532 F. Supp. 2d at 1364.

Bookworld

While condemning

Plaintiff’s allegations as “formulaic” and “conclusory,”
(Dkt. No. 31, Def.’s Reply at 9, 11), Defendant presents no
good reason for the court to enter judgment on this count at
this stage and, thus, Defendant’s motion will be denied with
respect to Count IV.
F.

Count V: Breach of Express Warranty.
To prove a breach of an express warranty, Plaintiff

must satisfy three elements: (1) breach, (2) causation, and

5

Defendant’s reliance on Kertesz v. Net Transactions,
Ltd., 635 F. Supp. 2d 1339 (S.D. Fla. 2009) for the
proposition that Plaintiff is not the type of “consumer”
protected by the FDUTPA is misplaced. Kertesz held that
“consumer” specifically excludes parties not engaged in any
type of business transaction, which is not an issue here.
Id. at 1349 (preventing the plaintiff from bringing FDUTPA
claim in a defamation action against owners of a
pornographic website given that she had not transacted any
business with the defendants). In fact, Kertesz expressly
stated that “remedies available to individuals are also
available to businesses.” Id. (citation omitted).
19

(3) damages.

Kia Motors Am. Corp. v. Butler, 985 So.2d

1133, 1140-41 (Fla. 3d D.C.A. 2008).

Here, Plaintiff

alleges:
DHL expressly warranted to Cyphermint, and to
[Plaintiff] as successor-in-interest, that DHL
would not do any act or make any grant, assignment
or agreement that would or might conflict or
interfere with Cyphermint/[Plaintiff’s] complete
enjoyment of all rights under the DHL Contract;
would use best efforts to assist and cooperate
with Cyphermint/[Plaintiff] and to use
commercially reasonable efforts to cooperate with
Cyphermint/[Plaintiff].
(Dkt. No. 19, Am. Compl. ¶ 64.)

Defendant argues that

these allegations are vague and fail even to identify
particular provisions in the Contract that create such
express warranties.

Defendant acknowledges, however, that

this pleading appears to be a hybrid of Sections 2.4, 2.5,
and 6.1 of the Contract, which read as follows:
2.4 Cooperation and Coordination. DHL will use
commercially reasonable efforts to cooperate and
coordinate its activities, and those of its
subcontractors, with CI, DHL and DHL’s other
vendors within the DHL Shipping Spot Project in
order to implement any CI Services via DHL Kiosk.
2.5 DHL Cooperation. To the extent that any
development, testing, implementation or
maintenance of any CI Services requires the
assistance, cooperation and consent of DHL, DHL
agrees to use its best efforts to provide such
assistance, cooperation or consent on a timely
basis.
20

6.1 Mutual Representations and Warranties.
Each party represents and warrants to the
other that . . . (c) it has not done and
will not do any act and has not made and
will not make any grant, assignment or
agreement that will or might conflict or
interfere with the complete enjoyment of
all of the other party’s rights under
this Agreement.
It is true, as Defendant observes, that these
provisions are broadly worded.

Nonetheless, Plaintiff’s

chief allegation that Defendant flagrantly abused its
discretion under the Contract to limit the number and
placement of shipping spots -– by terminating the project
entirely and then refusing to pay the clearly applicable
penalty -- states a plausible claim for breach of warranty
and is therefore sufficient to survive a motion to dismiss.
This claim is more than sufficient to mandate denial of
Defendant’s motion as to Count V.
G.

Count VI: Violation of Mass. Gen. Laws ch. 93A, Section
11.
Chapter 93A provides a cause of action to “a person who

is engaged in business and who suffers a loss as a result of
an unfair or deceptive act or practice by another person
also engaged in business.”

Manning v. Zuckerman, 444 N.E.2d

1262, 1264 (Mass. 1983) (citation omitted).
21

Like the

FDUTPA, this statute defines “persons” subject to liability
under § 11 to include both individuals and business
entities.

Mass. Gen. Laws ch. 93A, § 1(a).

“Among the

myriad ways in which to qualify as a violator of c. 93A is
to fail to disclose a fact to the plaintiff, the disclosure
of which may have influenced a person not to enter the
transaction.”

31 Mass. Prac. Equitable Remedies § 28.6 (3d

ed.).
Here, as in Count IV (alleging violation of FDUTPA),
Defendant challenges Plaintiff’s allegations as formulaic
and lacking adequate particularity.

Defendant further

argues that, as a “simple breach of contract,” the facts of
this case will not support a Chapter 93A claim.

See Incase

Inc. v. Timex Corp., 488 F.3d 46, 56 (1st Cir. 2007)
(“Simple breach of contract is not sufficiently unfair or
deceptive to be alone a violation of Chapter 93A.”).

While

Defendant’s argument has some force, it would be premature
at this time to dismiss this count.

Defendant’s contentions

may be revisited following discovery via a motion for
summary judgment, or at the conclusion of Plaintiff’s
evidence at trial.
V.

CONCLUSION
22

For the foregoing reasons, Defendant’s Motion for
Judgment on the Pleadings (Dkt. No. 25) is hereby ALLOWED as
to Count III and DENIED as to Counts I, II, IV, V, and VI.
Plaintiff’s Cross-Motion for Partial Judgment on the
Pleadings (Dkt. No. 28) is hereby ALLOWED.

Counsel will

submit a joint written status report with a proposal for
future proceedings no later than August 15, 2011.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

23