United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
WILLIAM G. YOUNG JUDGE.
plaintiff, Linda Brennan ("Brennan"), has brought
suit against Thomas F. Ferreira and Barbara Ferreira
(collectively "T&B Ferreira"); John Jeff
Ferreira and Tammy Ferreira (collectively "J&T
Ferreira"); Hicks Street, Inc.; Hilda Miranda; Three Big
Dogs Irrevocable Trust; Prescott, Bullard & McLeod;
Richard C. Borges; and Douglas Leatham ("Leatham"),
alleging, inter alia, violations of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"),
violations of the Uniform Fraudulent Transfer Act
("UFTA"), and common law civil conspiracy. PI.
Linda Brennan's Mot. Am. Compl., Ex. 1, Am. Compl. and
Jury Demand ("Am. Compl.'') 2, ECF No. 41-1.
has moved for leave to file an amended complaint. PI. Linda
Brennan's Mot. Am. Compl., ECF No. 41. Leatham opposed,
arguing that the claims against him ought be dismissed for
failure to state a claim. Opp'n Def., Douglas Leatham,
PI., Linda Brennan's Mot. Am. Compl. ("Def.'s
Opp'n"), ECF No. 44; Mot. Def. Dismiss, ECF No. 12.
For the reasons below, this Court grants Brennan leave to
file her amended complaint, but dismisses counts I and II
initially filed her complaint on December 16, 2016. Compl. 1,
ECF No. 1. Leatham moved to dismiss the complaint, Mot. Def.
Dismiss, and the parties briefed the issues, Linda
Brennan's Opp'n Def.'s Mot. Dismiss
("Pl.'s Opp'n"), ECF No. 35; Mem. Law Def.
Supp. Mot. Dismiss, ECF No. 13.
morning of the hearing addressing Leatham's motion to
dismiss, Brennan filed a motion for leave to file an amended
complaint. Pi. Linda Brennan's Mot. Am. Compl. Leatham
opposed, maintaining that the amended complaint failed to
cure the deficiencies of the original complaint. Def.'s
is a creditor of T&B Ferreira under the UFTA. Am. Compl.
¶ 13. She and her former husband, Andrew Brennan, were
partners with T&B Ferreira in various businesses and real
estate ventures, including F&B Enterprises, Inc. and Land
Locker, Inc. Id. at 2. In 1995, the Brennans and
T&B Ferreira agreed to part ways, dividing their common
business and real estate interests. Id. As part of
their agreement, the Brennans were to receive monthly
payments, but T&B Ferreira stopped making these payments
in August 2000, and filed for Chapter 11 Bankruptcy on behalf
of F&B Enterprises, Inc. soon after. Id.
is T&B Ferreira and J&T Ferreira's certified
public accountant. Id. ¶ 18. On or about
December 17, 2012, Barbara Ferreira transferred the deed to
25 Tinkham Lane, Mattapoisett, Massachusetts, to J&T
Ferreira for $1.00, well below the property's fair market
value. Id. ¶¶ 20-21. J&T Ferreira
subsequently sold the property for $435, 000.00. Id.
¶ 22. Brennan alleges that Leatham filed false tax
returns and made false accounting entries by charging Land
Locker, Inc. for uninsured property damage, id.
¶¶ 56-57, that this assistance was necessary to the
Ferreiras' scheme, id. ¶ 61, and that
Leatham knew or should have known that the Ferreiras were
concealing assets, id. ¶ 64.
amended complaint asserts three causes of action against
Leatham: violation of RICO (count I), id.
¶¶ 65-80; fraudulent conveyances under the UFTA
(count II), id. ¶¶ 81-86; and civil
conspiracy (count III), id. ¶¶ 87-91.
Leatham contends that the amended complaint "suffers
from the same substantive defects as the original
[c]omplaint, " in that it does not allege sufficient
facts to support Leatham's involvement in the purported
scheme to defraud creditors. Def.'s Opp'n 1-2.
a court ought grant leave to amend a pleading "when
justice so requires, " Fed.R.Civ.P. 15(a)(2), a district
court retains significant discretion to deny amendment if it
appears futile. See Foman v.
Davis, 371 U.S. 178, 182 (1962). "In assessing
futility, the district court must apply the standard which
applies to motions to dismiss, " Adorno
v. Crowley Towing & Transp. Co., 443
F.3d 122, 126 (1st Cir. 2006) (citing Glassman
v. Computervision Corp., 90 F.3d 617, 623
(1st Cir. 1996)); that is, whether, accepting all factual
allegations as true, a complaint states a plausible claim to
relief, see Saldivar v. Racine,
818 F.3d 14, 18 (1st Cir. 2016) (citing Cardigan Mountain
Sch. v. New Hampshire Ins. Co., 787
F.3d 82, 84 (1st Cir. 2015)).
Count I: ...