United States District Court, D. Massachusetts
JOSEPH PRESTI, on behalf of plaintiff and the class members described herein, Plaintiff,
TOYOTA MOTOR SALES U.S.A, INC., and COLONIAL IMPORTS CORP., d/b/a TOYOTA OF NASHUA, Defendants.
MEMORANDUM AND ORDER
J. Casper United States District Judge
Joseph Presti (“Presti”) has filed this lawsuit
against Toyota Motor Sales U.S.A., Inc.
(“Toyota”) and Colonial Imports Corp., doing
business as Toyota of Nashua (“Colonial”)
(collectively, the “Defendants”), alleging
deceptive practices under Massachusetts and New Hampshire
consumer protection law, Mass. Gen. L. c. 93A (“Chapter
93A”) and N.H. Rev. Stat. § 358-A
(“NHCPA”), respectively, and unjust enrichment.
D. 21. Toyota and Colonial now have moved to dismiss
Presti's second amended complaint in its entirety under
Fed.R.Civ.P. 12(b)(6). D. 23; D. 25. For the reasons stated
below, the Court ALLOWS both motions and dismisses
Presti's second amended complaint in its entirety.
Standard of Review
survive a motion to dismiss under Rule 12(b)(6), a complaint
must include “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007);
García-Catalán v. United States, 734
F.3d 100, 103 (1st Cir. 2013). 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). “A pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555).
alleging fraud, a pleading party “must state with
particularity the circumstances constituting fraud.”
Fed.R.Civ.P. 9(b). This requires the pleader to “allege
with particularity the who, what, when, where, and how of the
fraud.” D'Agostino v. ev3, Inc., 845 F.3d
1, 10 (1st Cir. 2016); see also SEC v. Tambone, 597
F.3d 436, 442 (1st Cir. 2010). Rule 9(b) requires a complaint
to “specify the statements that the plaintiff contends
were fraudulent” and “explain why the statements
were fraudulent.” Suna v. Bailey Corp., 107
F.3d 64, 68 (1st Cir. 1997). Furthermore, “where there
are multiple defendants, the specific role of each must be
alleged.” Rick v. Profit Mgmt. Assocs., Inc.,
241 F.Supp.3d 215, 224 (D. Mass. 2017). This applies not only
to fraud claims, but also to claims that “effectively
charge fraud.” N. Am. Catholic Educ. Programming
Found., Inc. v. Cardinale, 567 F.3d 8, 15 (1st Cir.
following facts are based upon the allegations in
Presti's second amended complaint, D. 21, and are
accepted as true for the consideration of the motion to
dismiss. Toyota, a California corporation, imports,
advertises and sells Toyota products within the United
States. D. 21 ¶ 5. Colonial operates a Toyota dealership
in Nashua, New Hampshire and advertises to customers both in
New Hampshire and in certain towns in Massachusetts. D. 21
¶¶ 6, 8. One town where Colonial advertises is
Littleton, Massachusetts, where Presti resides. D. 21
¶¶ 4, 8.
September and October 2016, Toyota advertised a “tire
savings event” at Toyota locations throughout the
United States, including at Colonial's Nashua location,
offering “[t]hree tires at regular price, fourth tire
for one dollar.” D. 21 ¶¶ 8-9. Presti alleges
that Toyota “had a cooperative advertising program for
Toyota dealers” like Colonial, by which Toyota funded
“a substantial portion of the cost of the
advertising” and “either required prior approval
for the mailers . . . or was familiar with their
content.” D. 21 ¶¶ 19, 22. Colonial
distributed this promotion advertising “throughout its
market area” and “repeated the
representations” to customers visiting the dealership.
D. 21 ¶ 25.
traveled to Colonial in New Hampshire “in
response” to this advertisement. D. 21 ¶ 13.
Upon arriving at Colonial, Presti was offered three tires at
$173 each and a fourth tire at $1, bringing the total price
of the four tires to $520. D. 21 ¶ 14; D. 21 at 42.
Presti alleges that the price of $173 per tire was not the
“regular price, ” as they had been previously
sold at $149.30 per tire prior to the promotion. D. 21
¶¶ 10, 15. Presti complained of this discrepancy to
Colonial and received a $35 “loyalty” discount in
return. D. 21 ¶ 16. After the promotion ended, Presti
claims that the price of the tires was “reduced to
under $150 each.” D. 21 ¶ 17.
instituted this action on February 27, 2017, D. 1, and filed
the second amended complaint on September 5, 2017, D. 21.
Defendants have now moved to dismiss that amended pleading.
D. 23; D. 25. The Court heard the parties on the pending
motions and took the matters under advisement. D. 36.
Presti Has Failed to State a Claim under the Massachusetts or