Clean Harbors Environmental Services, Inc. v. Sheppard

          File Date: January 8, 2018

          MEMORANDUM AND ORDER ALLOWING PLAINTIFF’S MOTION FOR LEAVE TO FILE ITS SECOND AMENDED COMPLAINT

          Kenneth W. Salinger, Justice Superior Court

          The Court will allow Plaintiff’s 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.

         A 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 duty.

         The 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 ‘the proposed amendment ... is futile.’" (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).

         To 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 Plaintiffs’ 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).

         The 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).

         Defendants’ 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) dismissal).

          The 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.

         The 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").

         Finally, 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).

         ORDER

         Plaintiff’s motion for leave to file its second amended complaint is ALLOWED. Plaintiff shall file and serve a signed version of ...