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Ahern v. Scola

United States District Court, D. Massachusetts

October 22, 2014

EDWARD AHERN, et al., Plaintiffs,
ANTHONY SCOLA, et al., Defendants.


DAVID H. HENNESSY, Magistrate Judge.

By Order of Reference dated May 30, 2014, pursuant to 28 U.S.C. § 636(b)(1)(B) (Docket #69), this matter was referred to me for a report and recommendation on Defendants Kelle O'Keefe, Daniel Loring, Apple Country Realty, Mark Kavanagh, [1] and Keller Williams Realty, Inc.'s Motion to Dismiss. (Docket #58). An opposition to that motion has been filed (Docket #68). This matter is now ripe for adjudication. For the reasons that follow, I RECOMMEND that the Motion to Dismiss be ALLOWED.


Plaintiffs Kai Kunz and Edward Ahern filed this action on August 8, 2012. (Docket #1). The Complaint, which named twenty-six defendants, asserted, inter alia, conspiracy, fraud, attempted murder, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), kidnapping, and extortion. (Id.). On August 27, 2012, the Court issued a Memorandum and Order granting Kunz and Ahern leave to proceed in forma pauperis and directing them to demonstrate within thirty-five days good cause why the action should not be dismissed. (Docket #7). Kunz and Ahern were also directed to file within thirty-five days an amended complaint comporting with the pleading requirements of Federal Rule of Civil Procedure 8. (Id.). On October 25, 2012, the Court dismissed the case in light of the failure of Kunz and Ahern to comply with the August 27, 2012 Memorandum and Order. (Docket #10).

On November 30, 2012, Kunz moved to vacate the dismissal after retaining Attorney David E. Ashworth. (Dockets #12, 13). Kunz attached a proposed amended complaint to the motion. (Docket #12-1). On December 20, 2012, the Court granted the motion to vacate, but ruled that the proposed amended complaint would not be entered on the electronic docket at that time as the Court noticed several inconsistencies in the signature lines of the documents filed by Attorney Ashworth. (Docket #17). The Court ordered Attorney Ashworth to file within fourteen days an amended complaint on behalf of the plaintiffs that he was engaged to represent. (Id.). On January 2, 2013, Ahern moved to vacate the dismissal after also retaining Attorney Ashworth.[2] (Docket #20). Ahern attached a proposed amended complaint to the motion. (Docket #20-1). In the January 2, 2013 motion, Ahern and Kunz also moved to vacate the Court's August 27, 2012 Memorandum and Order permitting them to proceed in forma pauperis. (Docket #20). The Court granted this motion on January 3, 2013. (Docket #21).

On February 1, 2013, Plaintiffs Kunz, Ahern, and Williams XI Properties Series, LLC ("William XI") (collectively "Plaintiffs") filed an Amended Complaint naming twenty defendants (collectively "Defendants"). (Docket #23). According to the Amended Complaint, Kunz and William XI purchased twenty-six properties ("Kunz Properties") in connection with their business of buying, selling, renting, and developing real estate. (Id. at ¶ 28). Ahern also owned certain real properties and is described as "similarly situated in many relevant aspects, to plaintiffs [Kunz] and [William XI], by the actions of certain defendants." (Id. at ¶ 30). The Amended Complaint does not identify any of the properties owned by Ahern.

Defendants are licensed real estate professionals and their agents, and worked for Defendants Keller Williams Realty Metropolitan and Keller Williams Realty, Inc. (Id. at ¶ 33). Plaintiffs had contracts or enforceable agreements with various Defendants to broker numerous Kunz properties. (Id. at ¶ 34). This case stems from real estate transactions concerning the various Kunz properties.

Plaintiffs assert thirteen counts in their Amended Complaint: breach of contract (Count I), conversion (Count II), violations of RICO (Count III), interference with contractual relationships and prospective economic advantage (Count IV), violation of Mass. Gen. Laws ch. 93A, § 11 (Count V), negligence (Count VI), constructive trust (Count VII), promissory estoppel (Count VIII), malicious prosecution (Count IX), abuse of process (Count X), violation of Mass. Gen. Laws ch. 12, §§ 11H and 11I (Count XI), breach of the duty of good faith and fair dealing (Count XII), and negligent misrepresentation (Count XIII).

On March 10, 2014, the undersigned entered a report and recommendation on Defendants Twin Cities Development, LLC and David Hill's Motions to Dismiss. (Docket #54). The undersigned recommended that the Amended Complaint be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with the Court's Memorandum and Order of August 27, 2012. (Id. at 9). On March 26, 2014, Judge Hillman adopted the Report and Recommendation over Plaintiffs' objection and granted Defendants Twin Cities Development, LLC and Hill's Motions to Dismiss. (Docket #57).

Defendants O'Keefe, Loring, Apple Country Realty, Kavanagh, and Keller Williams Realty, Inc. now seek to dismiss the Amended Complaint. (Docket #58).


Rule 8 of the Federal Rules of Civil Procedure provides, in relevant part, that "[a] pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed.R.Civ.P. 8(a)(2). The statement must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Phelps v. Local 0222, No. 09-11218-JLT, 2010 U.S. Dist. LEXIS 88007, at *13 (D. Mass. Aug. 20, 2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). In addition, the pleadings must afford the defendants "a meaningful opportunity to mount a defense." Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 123 (1st Cir. 2004) (quotation omitted).

On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court "must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). "Under Rule 12(b)(6), the district court may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment." Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (quoting Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)). There lies an exception to this rule "for documents the authenticity or which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint." Id . (quoting Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).

To survive a motion to dismiss, a plaintiff must "state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (internal citations omitted). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Despite this generous standard, "Rule 12(b)(6) is not entirely a toothless tiger... [t]he threshold for stating a claim may be low, but it is real." Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (quotation omitted). The complaint must therefore "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal ...

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