United States District Court, D. Massachusetts
ERROL RICK, Assignee of COMFORT BEDDING AND FURNITURE, INC., Plaintiff,
PROFIT MANAGEMENT ASSOCIATES, INC. d/b/a PROFIT MANAGEMENT PROMOTIONS and/or PROFIT MANAGEMENT ASSOCIATES EAST, INC.; MICHAEL J. EGAN, as President and Individually; JOHN “HECTOR” MUSTAFA, Individually; and RONALD COOPER, Individually, Defendants.
MEMORANDUM OF DECISION AND ORDER ON MOTION FOR LEAVE
TO FILE THIRD AMENDED COMPLAINT
Gail Dein United States Magistrate Judge.
Memorandum of Decision and Order dated April 13, 2018, this
court granted the plaintiff's motion for leave to file a
second amended complaint against defendant Ronald Cooper on
Count II (violation of Mass. Gen. Laws. ch. 93A), but denied
the motion as to the remaining claims. See Rick v. Profit
Mgmt. Assoc., Inc., Civil Action No. 15-11171-JGD, 2018
WL 1783797 (D. Mass. Apr. 13, 2018). Thereafter, the
plaintiff filed a motion for leave to file a third amended
complaint (Docket No. 86), which asserts claims solely
against defendant Michael Egan. Defendant Egan opposes the
motion. For the reasons detailed herein, the proposed third
amended complaint fails to state a claim upon which relief
can be granted. The motion for leave to file the third
amended complaint (Docket No. 86) is therefore DENIED.
STATEMENT OF FACTS
the proposed third amended complaint is premised on the prior
amended complaints, this court will assume the reader's
familiarity with its earlier decisions. Briefly, the pro
se plaintiff, Errol Rick, was the former President and
50% owner of Comfort Bedding and Furniture, Inc.
(“Comfort Furniture”), a company that was
liquidated pursuant to a Chapter 7 Bankruptcy Proceeding in
the United States District Court, District of Massachusetts
(No. 11-42740-MSH). He brings this action by virtue of an
assignment from Comfort Furniture authorized by the
Bankruptcy Court dated January 20, 2014.
about February 24, 2011, Comfort Furniture entered into a
Sales Promotion Agreement with Profit Management Associates,
Inc. d/b/a Profit Management Promotions (“PMP”)
pursuant to which PMP was to conduct a high impact
promotional sale on behalf of Comfort Furniture for 60 days,
commencing on March 24, 2011. Problems arose virtually
immediately. By April 18, 2011, Comfort Furniture served PMP
with a Notice and Demand letter pursuant to Mass. Gen. Laws
First Amended Complaint
commenced this action on March 24, 2015 against PMP. The
complaint was subsequently amended to add the individual
defendants, Michael Egan, John “Hector” Mustafa,
and Ronald Cooper (collectively, the “Individual
Defendants”), to the claims originally brought against
PMP, namely breach of contract, fraudulent misrepresentation,
and violation of Mass. Gen. Laws ch. 93A. PMP never filed a
responsive pleading and a default was entered against it.
Individual Defendants moved to dismiss all the counts of the
complaint. This court dismissed Count I - breach of contract
- on the grounds that the contract was between “Profit
Management Associates East, Inc., d/b/a Profit Management
Promotions (‘PMP'), and Comfort Bedding &
Furniture, Inc.” and the Individual Defendants were not
parties to the agreement. Rick v. Profit Mgmt. Assoc.,
Inc., 241 F.Supp.3d 215, 222 (D. Mass. 2017). The court
noted that while the complaint hinted at theories of piercing
the corporate veil of PMP, or successor corporate liability,
those theories had not been articulated. Id. Thus,
the court dismissed the claim without prejudice. Id.
II of the first amended complaint purported to state a claim
under Mass. Gen. Laws ch. 93A. Rick alleged that the
defendants had committed “unfair and deceptive acts and
practices in connection with the promotional sale by making
misrepresentations, misappropriating funds and failing to
properly allocate funds, among other things.”
Id. at 225. This court dismissed this Count against
the Individual Defendants, without prejudice, because the
allegations were “insufficient to state a claim against
the individual defendants for their own personal
wrongdoing” and failed to “state a basis for
disregarding the corporate entity.” Id.
III of the first amended complaint purported to state a claim
of “intentional misrepresentation/fraud.” This
court found that the claim was barred by the statute of
limitations and dismissed the claim with prejudice.
Id. at 224-25.
Second Amended Complaint
subsequently moved for leave to file a second amended
complaint. The proposed second amended complaint included
additional factual allegations and named six new corporate
entities headed by the Individual Defendants. This court
denied Rick's motion as to Count I (breach of contract),
concluding that while the defendant had “added facts
regarding what actions the Individual Defendants took in
furtherance of that contract, he [had] not alleged any facts
which alter the reality that the Individual Defendants are
not parties to the agreement.” Rick, 2018 WL
1783797, at *3. Further, the court concluded that the
plaintiff had also failed to “allege any facts which
would support a theory of piercing the corporate veil”
or a claim of successor liability. Id. at *3-4.
court also denied Rick's motion as to Count III
(intentional misrepresentation/ fraud). The court explained
that while Rick had added additional details to his second
amended complaint on this count, the claim was ...