United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Denise J. Casper United States District Judge
Plaintiff Lawrence Oliverio (“Oliverio”) brings state law claims against defendant Allied Steel Buildings, Inc. (“Allied”) in a commercial construction dispute based upon diversity jurisdiction. D. 1. Allied now moves to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim. D. 5. The Court ALLOWS in part and DENIES in part the motion.
II. Standard of Review
On a motion to dismiss under Rule 12(b)(6), the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must distinguish the factual allegations from the conclusory legal allegations. Id. Factual allegations are accepted as true, while conclusory legal allegations are not. Id. Second, the Court must determine whether the factual allegations “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). “Plausible, of course, means something more than merely possible, and gauging a pleaded situation’s plausibility is a ‘context-specific’ job that compels [the Court] ‘to draw on’ [its] ‘judicial experience and common sense.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
III. Factual Allegations
The following allegations, taken as true for the purposes of considering the motion to dismiss, are from the complaint. D. 1. Oliverio is a Massachusetts resident. D. 1 ¶ 1. Allied is a corporation with a principal place of business in Florida. Id. ¶ 2.
Around May 2014, Oliverio and his designated agent, Integrated Builders (“Integrated”), a general construction contractor, began negotiating with Allied over the purchase and installation of materials and services necessary for the construction of a steel building. Id. ¶ 4. Allied received detailed drawings, plans and specifications as well as governmental regulations relevant for the project. Id.
Allied told Oliverio and Integrated that it could deliver all the necessary materials for about $45, 000 and that its own recommended erector, Louis Holly at FaithLouie Management (“Holly”), could provide all the necessary services for erecting the building. Id. ¶¶ 4, 6. Allied specifically advised that it would match or beat any price quoted by competing building suppliers for the materials and erection of the building. Id. ¶ 5. Allied also specifically advised that the cost of erection would range between $3 and $5 per square foot and that Holly could do it at that price. Id. The sole reason Oliverio decided to go with Allied and forgo competing bids was because of these representations. Id. ¶¶ 6-8.
Oliverio paid Allied for the materials in advance. Id. ¶ 8. He also paid Holly in advance for services and the rental of allegedly necessary heavy equipment. Id. Yet after receiving the payment, Holly purposefully refused and failed to appear on site to perform any service whatsoever other than to mount a few steel columns and grids incompetently and leave them unsupported sitting on pylons. Id. Holly also failed to attend two separately pre-arranged meetings, squandering at least three days of work time. Id. And Holly failed to return or arrange for the return of heavy construction equipment, resulting in excess rental fees. Id. ¶ 9. Despite Oliverio’s repeated attempts to contact Allied to find a way to remediate or mitigate the damages already incurred by Holly’s failures, Allied failed to suggest or discuss an alternative source of services because Allied said it could not get anyone else to erect the building. Id. ¶ 12.
IV. Procedural History
Oliverio filed this lawsuit on October 14, 2015. D. 1. He asserts fraud (Count I), negligence (Count II), breach of contract (Count III), unfair and deceptive trade practices (Count IV) and unjust enrichment claims (Count V) against Allied. Id. ¶¶ 15-24. Allied has now moved to dismiss the complaint. D. 5. The Court heard argument on the motion and took it under advisement. D. 24.
A. Subject Matter Jurisdiction and the Alleged ...