United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE.
Plante & Moran, PLLC (“PM”) has filed this
lawsuit against Defendant Andover Healthcare, Inc.
(“Andover”), alleging breach of contract. D. 1.
Andover has answered PM's complaint with four
counterclaims: breach of contract, fraud, negligent
misrepresentation and unfair and deceptive acts in violation
of Mass. Gen. L. c. 93A, §§ 2, 11 (“Chapter
93A”). D. 5-1.Andover also pled two affirmative defenses
in its answer: lack of consideration and fraud. D. 5 at 5. PM
now moves to dismiss Andover's counterclaims and strike
Andover's affirmative defenses. D. 9. For the reasons
stated below, the Court ALLOWS IN PART and DENIES IN PART
Standard of Review
Motion to Dismiss
Court will grant a motion to dismiss under Fed.R.Civ.P.
12(b)(6) if a counterclaim fails to plead sufficient facts to
“state a claim for relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). 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). First, the Court must “distinguish the
complaint's factual allegations (which must be accepted
as true) from its conclusory legal allegations (which need
not be credited).” Saldivar v. Racine, 818
F.3d 14, 18 (1st Cir. 2016) (quoting Cardigan Mt. Sch. v.
N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015)).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Second, the Court must determine whether the factual
allegations support a “reasonable inference that the
defendant is liable for the misconduct alleged.”
Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir.
2011) (quoting Iqbal, 556 U.S. at 678).
reviewing a motion pursuant to Rule 12(b)(6), the Court
“may properly consider only facts or documents that are
part of or incorporated into the complaint.”
Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.,
524 F.3d 315, 321 (1st Cir. 2008); see Fed.R.Civ.P.
12(d). The Court may make exceptions for “documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred
to in the complaint.” Alt. Energy, Inc. v. St. Paul
Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.
2001) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st
Motion to Strike
Rule 12(f), “[t]he [C]ourt may strike from any pleading
any insufficient defense or any redundant, immaterial,
impertinent or scandalous matter.” Fed.R.Civ.P. 12(f).
Motions to strike are “generally disfavored, ”
and “even when technically appropriate and
well-founded, Rule 12(f) motions are not granted in the
absence of a showing of prejudice to the moving party.”
U.S. Securities and Exch. Comm'n v. Nothern, 400
F.Supp.2d 362, 364 (D. Mass. 2005) (quoting 5A Charles Alan
Wright & Arthur R. Miller, Federal Practice &
Procedure § 1381, at 421-22 (3d ed. 2004)). Thus,
“[a] motion to strike will not be granted if the
insufficiency of the defense is not clearly apparent, or if
it raises factual issues that should be determined on a
hearing on the merits.” PetEdge, Inc. v. Yahee
Techs. Corp., No. 15-cv-13171-ADB, 2017 U.S. Dist. LEXIS
66663, at *4 (D. Mass. May 2, 2017) (quoting
Nothern, 400 F.Supp.2d at 364).
following summary is based upon the factual allegations in
Andover's counterclaims, D. 5-1, which the Court accepts
as true for the purposes of PM's motion to dismiss.
Additionally, the Court includes facts referenced in the
three contracts attached to PM's motion to dismiss, as
they are central to all of counterclaims, referred to
repeatedly therein, D. 5-1 ¶¶ 3-27, and their
authenticity is not in dispute. See Alt. Energy, 267
F.3d at 33.
a Massachusetts corporation, and PM, a Michigan corporation,
entered into three contracts between late July 2015 and
December 2015, under which PM agreed to provide consulting
services to Andover for a fee. D. 5-1 ¶¶ 3-4, 8-9,
11-12; see D. 9-2; D. 9-3; D. 9-4. The first
contract, signed on or around August 5, 2015, provided that
PM would deliver consulting services over a three-day period
for a fee of $35, 000 plus expenses. D. 5-1 ¶¶ 3-4;
D. 9-2 at 9, 13. The contract provided that “[i]n the
event an invoice is not paid timely, a late charge in the
amount of 1.25% per month will be added.” D. 9-2 at 9.
Additionally, paragraph five of the contract, labeled
“Fee Quotes, ” stated that “PM will
endeavor to advise Andover Healthcare in the event”
that unforeseen circumstances occur requiring PM to adjust
its fees, “however it is acknowledged that the exact
impact on the Fee Quote may not be determinable until the
conclusion of the engagement.” D. 9-2 at 11. Andover
paid PM $35, 000 on October 13, 2015. D. 5-1 ¶ 5. On
October 30, 2015, PM issued an invoice in the amount of $6,
826.44 for expenses related to this contract. D. 5-1 ¶
6. Andover Healthcare paid this amount on December 30, 2016.
Id. PM also issued an invoice for $11, 807.50 of
expenses related to this contract on February 9, 2016. D. 5-1
about September 11, 2015, the parties entered into a second
contract, under which PM would provide Andover with
additional consulting services for a fee of $100, 000 plus
expenses. D. 5-1 ¶¶ 8-9; D. 9-3 at 10. The contract
stated that $100, 000 was the “[e]stimated” fee
for six weeks of work, based on the average hourly rates of
partners, principals, managers and senior consultants. D. 9-3
at 10. The contract repeated the first contract's
interest rate for late payments and stated that
“[a]fter the initial six weeks of work, ” the
parties would “determine whether additional support is
needed for validation, and to what extent, ” noting
that “[a]dditional work will be billed at the same
rates.” Id. The contract contained the same
“Fee Quotes” provision as the first contract. D.
9-3 at 12. On February 9, 2016, PM provided Andover with an
invoice associated with this contract, billing Andover for
$206, 292.67, including $179, 860.00 for professional
services and $26, 432.67 for expenses. D. 5-1 ¶ 10.
about December 4, 2015, prior to receiving the invoice for
the second contract, the parties entered into a third
contract. D. 5-1 ¶ 11. This contract covered additional
consulting services by PM, for an estimated fee of $82, 500
plus expenses. D. 5-1 ¶ 12; D. 9-4 at 10. The fees
provision included the hourly rates of the senior consultant
and partner on the project, provided the same interest rate
as previously provided and stated that “[a]fter the
initial 7 weeks of work over 5 months, Andover Healthcare and
Plante Moran will determine whether additional support is
needed for validation, and to what extent, ” to be
billed at the same rates. D. 9-4 at 10. The third contract
contained the same “Fee Quotes” provision as the
first two contracts. D. 9-4 at 11. On February 9, 2016, PM
issued an invoice to Andover for $410, 198.26, including
$397, 987.50 for professional ...