CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.
Kevin SHEPPARD et al.
Date: January 8, 2018
MEMORANDUM AND ORDER ALLOWING PLAINTIFFâS MOTION FOR
LEAVE TO FILE ITS SECOND AMENDED COMPLAINT
Kenneth W. Salinger, Justice Superior Court
Court will allow Plaintiffâs motion to further amend its
complaint because the proposed amendment is timely, the
proposed amended complaint states legally viable claims, and
none of the Defendants will suffer any unfair prejudice if
the amendment is allowed.
motion to amend a complaint "should be allowed unless
some good reason appears for denying it." Afarian v.
Massachusetts Elec. Co., 449 Mass. 257, 269 (2007),
quoting Castellucci v. United States Fid. & Guar.
Co., 372 Mass. 288, 289 (1977). There is no good reason
to bar Plaintiff from adding four claims against defendant
Kevin Sheppard for intentional fraud, negligent
misrepresentation, unjust enrichment, and breach of fiduciary
proposed new claims would not be futile because they would
survive a motion to dismiss. See generally Johnston v.
Box, 453 Mass. 569, 583 (2009) ("Courts are not
required to grant motions to amend prior [pleadings] where
âthe proposed amendment ... is futile.â" (quoting
All Seasons Servs., Inc. v. Commissioner of Health &
Hosps. of Boston, 416 Mass. 269, 272 (1993));
Mancuso v. Kinchla, 60 Mass.App.Ct. 558, 572 (2004)
(if amendment to add claim could not survive motion to
dismiss, allowing amendment would be exercise in futility).
survive a motion to dismiss under Rule 12(b)(6), and thus to
avoid being futile under Rule 15, a complaint must allege
facts that, if true, would "plausibly suggest[ ] ... an
entitlement to relief." Lopez v. Commonwealth,
463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford
Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007). For the
purpose of deciding the pending motions to dismiss, the Court
must assume that the factual allegations in the complaint and
any reasonable inferences that may be drawn in Plaintiffsâ
favor from the facts alleged are true. See Golchin v.
Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). In so
doing, however, it must "look beyond the conclusory
allegations in the complaint and focus on whether the factual
allegations plausibly suggest an entitlement to relief."
Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner,
LLP, 473 Mass. 336, 339 (2015), quoting Curtis v.
Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
facts alleged in the proposed second amended complaint
plausibly suggest that Mr. Sheppard may be liable for
intentional fraud, negligent misrepresentation, unjust
enrichment, and breach of fiduciary duty. Nothing more is
needed. "[D]etailed factual allegations are not
required" to state a viable claim. Lopez v.
Commonwealth, 463 Mass. 696, 701 (2012).
assertion that the factual allegations based on
"information and belief" are insufficient to state
a claim with sufficient factual detail has no merit. Under
Massachusetts law, "[f]or purposes of surviving a motion
to dismiss, ... a party may allege facts based on information
and belief" and the court must "assume the truth of
such allegations." Polay v. McMahon, 468 Mass.
379, 383 n.5 (2014) (partially reversing Rule 12(b)(6)
proposed claim for intentional fraudulent misrepresentation
is stated with sufficient particularity to satisfy the
requirements of Mass.R.Civ.P. 9(b). Under this rule, a
claimant must "at a minimum" support their claim
for fraud by specifically alleging "the identity of the
person(s) making the" allegedly fraudulent
"representation, the contents of the misrepresentation,
and where and when it took place," and must also
"specify the materiality of the misrepresentation, [his]
reliance thereon, and resulting harm." Equipment &
Systems for Industry, Inc. v. NorthMeadows Constr. Co.,
Inc., 59 Mass.App.Ct. 931, 931-32 (2003) (rescript).
Plaintiff has done so.
claims for negligent misrepresentation, breach of fiduciary
duty, and unjust enrichment are not subject to Rule 9(b) and
need not be stated with particularity. See, e.g., DeWolfe
v. Hingham Centre, Ltd., 464 Mass. 795, 798 n.8 (2013)
(construing complaint that alleged "material
misrepresentation" as stating claim for negligent
misrepresentation because "fraud has not been pleaded
with sufficient particularity to state a claim for
intentional or reckless misrepresentation").
no Defendant will be unfairly prejudiced by the addition of
the proposed new claims against Mr. Sheppard. Since leave to
amend a pleading "shall be freely given when justice so
requires," Mass.R.Civ.P. 15(a), under Massachusetts law
mere delay standing alone cannot justify denying the motion
to amend. See Vakil v. Vakil, 450 Mass. 411, 418-20
(2008) (reversing denial of motion to amend answer, holding
it was abuse of discretion to deny motion where delay did not
unfairly prejudice opposing party).
motion for leave to file its second amended complaint is
ALLOWED. Plaintiff shall file and serve a signed version of