United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (#43.)
PAGE KELLEY UNITED STATES MAGISTRATE JUDGE.
January 24, 2018, Plaintiff, Andrew Friis, a baseball
memorabilia collector, filed a five-count complaint, alleging
claims for breach of contract (Count I),
misrepresentation/fraud (Count II), unjust enrichment (Count
III), conversion (Count IV), and violations of Mass. Gen. L.
ch. 93A (Count V), against Defendants, Kevin McCarthy, Jr.
(McCarthy) and McCarthy's tree-removal business, McCarthy
Tree Services, LLC (McCarthy Tree). (#1.) Plaintiff filed an
amended complaint on March 16, 2018, making the same claims
against Defendants. (#8.) Plaintiff alleges in his amended
complaint that, after he had purchased baseball memorabilia
from McCarthy, the grandson of former Boston Red Sox baseball
player Carl Yastrzemski, through a third-party, the parties
entered into an oral contract “whereby [Plaintiff]
agreed to provide money to McCarthy and to purchase certain
equipment for McCarthy Tree” in exchange for various
baseball memorabilia. (Id. ¶¶ 8, 10.)
Plaintiff maintains that McCarthy represented to him
“that he was the lawful owner of the memorabilia . . .,
and that he wanted to sell it because he needed to purchase
equipment for McCarthy Tree.” (Id. ¶ 9.)
also alleges that he agreed to sign a personal guaranty for a
loan, so that McCarthy could purchase a loader for McCarthy
Tree; McCarthy agreed to obtain Yastrzemski's signature
on a game-worn jersey Plaintiff owned; and McCarthy
“fraudulently charged . . . expenses on [his] credit
card without his authorization.” (Id.
¶¶ 11, 14.) Plaintiff asserts that, despite his
“numerous demands, ” Defendants have since
“failed and otherwise refused to” give Plaintiff
the memorabilia he was promised, obtain Yastrzemski's
signature, or otherwise return Plaintiff's jersey or
money. (Id. ¶ 14.)
March 1, 2019, Defendants filed a motion for summary judgment
as to all of Plaintiff's claims (#43), along with a
supporting memorandum (#44) and statement of material facts
(#45). On March 20, 2019, Plaintiff filed an opposition
(#46), along with a response to Defendants' statement of
material facts (#47) and a supporting affidavit (#48). Oral
argument was held on May 14, 2019. Viewing the record in the
light most favorable to Plaintiff and drawing all reasonable
inferences in the Plaintiff's favor, see
Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53, 56
(1st Cir. 2018) (citation omitted), the Court denies
Defendants' motion for summary judgment.
genuine disputes of material fact exist with respect to each
of Plaintiff's claims. See Fed. R. Civ. P.
56(a). Regarding Plaintiff's breach of contract claim, a
contract must be supported by consideration in order to be
valid and binding. Fisher v. HSBC Bank, 332
F.Supp.3d 435, 441 (D. Mass. 2018) (citing Coady Corp. v.
Toyota Motor Distribs., Inc., 346 F.Supp.2d 255, 248 (D.
Mass. 2003), aff'd, 361 F.3d 50 (1st Cir.
2004)). Gratuitous gifts are not supported by consideration.
King v. Trs. of Boston Univ., 647 N.E.2d 1196, 1199
n.4 (Mass. 1995) (citing Congregation Kadimah Toras-Moshe
v. DeLeo, 540 N.E.2d 691 (Mass. 1989)). Plaintiff's
breach of contract claim would fail, if Defendants can show
that Plaintiff intended to give McCarthy the money and
equipment without receiving anything in return.
unjust enrichment claim would also fail, if Defendants can
make a similar showing. “A plaintiff asserting a claim
for unjust enrichment must establish . . . that the defendant
received a benefit [and] that such benefit was unjust,
‘a quality that turns on the reasonable expectation of
the parties.'” SiOnyx, LLC v. Hamamatsu
Photonics K.K., 332 F.Supp.3d 446, 472 (D. Mass. 2018)
(quoting Metro Life Ins. Co. v. Cotter, 464 Mass.
623, 644 (2013)); see also Rogers v. Rogers, No.
04-46, 2007 Mass. Super. LEXIS 612, at *27 (Mass. Super. Ct.
May 29, 2007) (citing Santagate v. Tower, 833 N.E.2d
171, 180 (Mass. App. Ct. 2005)) (“the reasonable
expectations of the parties” determine “whether a
benefit is unjust”).
Defendants argue that Plaintiff's breach of contract and
unjust enrichment claims fail because Plaintiff freely gave
McCarthy the money and equipment as gifts, without any
consideration, (#44 at 9-10, 12-15), various text messages
between the parties reflect that Plaintiff gave McCarthy the
money and equipment while simultaneously discussing “a
trade” for the baseball “stuff.” (#45-1 at
61, 63, 71-72, 122.) This endeavor demonstrates a genuine
dispute on this issue. Defendants' motion for summary
judgment on Plaintiff's claims for breach of contract
(Count I) and unjust enrichment (Count III) is denied.
argue that Plaintiff cannot prove his fraud/misrepresentation
claim because there was no way his reliance on McCarthy to
provide the baseball memorabilia was
reasonable.(#44 at 11.) While Defendants contend that
any baseball memorabilia collector like Plaintiff would have
known that McCarthy did not have the authority to transfer
much of Yastrzemski's memorabilia, (#44 at 11), Plaintiff
points out that he had purchased memorabilia from McCarthy
before and that one could expect a grandfather to give his
grandson memorabilia from his playing days. (#46 at 11.) A
genuine issue of material fact also exists with respect to
the “reasonable reliance” aspect of
Plaintiff's fraud/misrepresentation claim.
Defendants' motion for summary judgment on
Plaintiff's fraud/misrepresentation claim (Count II) is
denied. See also Ilex Inves. L.P. v. Bitran, No.
SUCV2013000489-BLS2, 2016 Mass. Super. LEXIS 831, at **4-5
(Mass. Super. Ct. Dec. 23, 2016) (citing Kennedy v.
Josephthal & Co., Inc., 814 F.2d 798, 804 (1st Cir.
1987)) (“[w]hat constitutes reasonable reliance is a
fact-driven inquiry requiring the consideration of multiple
genuine issues of fact exist with respect to Plaintiff's
conversion claim,  regarding his Red Sox jersey and his
funds. Defendants contend that McCarthy told Plaintiff where
the jersey was and “offered to return it to Plaintiff[,
]”and Plaintiff gave McCarthy his credit card
information so that McCarthy “could purchase items
without the need of Plaintiff being on the phone[.]”
(#44 at 14-15.) However, Plaintiff points to multiple
inconsistencies within the record regarding Defendants'
assertion about the jersey and its whereabouts, (#46 at 13),
and contends that he never provided Defendants
“open-ended authority to charge whatever they needed on
his credit card.” (#47 at 10 (citing #48 ¶ 33).)
Plaintiff also correctly contends that it is the province of
a jury to evaluate and reject any contradictory testimony.
(#46 at 13.) See Gray v. Cummings, 917 F.3d 1, 5-6
(1st Cir. 2019) (quoting Quintana-Ruiz v. Hyundai Motor
Corp., 303 F.2d 62, 76 (1st Cir. 2002) (“juries
have some leeway to ‘reject uncontradicted, unimpeached
testimony when it is improbable, inherently contradictory,
riddled with omissions, or delivered in a manner giving rise
to doubts'”)). Defendants' motion for summary
judgment on the conversion claim is denied.
Defendants fail to show that there are no genuine disputes of
material fact with respect to Plaintiff's chapter 93A
claim. Regardless of whether a plaintiff brings the action
under section 11 or as an individual consumer under section
9, a plaintiff must show that the defendant had employed
“unfair or deceptive acts or practices[, ]” while
engaging in “trade or commerce[.]” South
Shore Hellenic Church, Inc. v. Artech Church Interiors,
Inc., 183 F.Supp.3d 197, 214 (D. Mass. 2016) (quoting
Kunelius v. Town of Stow, 588 F.3d 1, 16 (1st Cir.
2009) and Mass. Gen. L. ch. 93A, § 2(a)). The terms
trade and commerce “include the advertising, the
offering for sale, rent or lease, [and] the sale, rent, lease
or distribution of any services and any property, tangible or
intangible, real, personal or mixed . . . .” Mass. Gen.
L. ch. 93A, Â§ 1. Whether a defendant engaged in trade or
commerce depends on various factors, including âthe nature of
the transaction, the character of the parties involved, and
[their] activities . . . and whether the transaction [was]
motivated by business or personal reasons.” Peabody
N.E., Inc. v. Town of Marshfield, 689 N.E.2d 774, 778
& n.6 (Mass. 1998) (citation omitted). This is a
fact-specific inquiry. Feeney v. Dell, Inc., 908
N.E.2d 753, 770 (Mass. 2009); see Linkage Corp. v. Trs.
of Boston Univ., 679 N.E.2d 191, 207-08 (Mass. 1997)
(college engaging in trade or commerce when motivation was to
turn a profit).
argue that chapter 93A is inapplicable because McCarthy was
not a professional seller of baseball memorabilia and
therefore, was not engaging in trade or commerce. (#44 at
12.) Plaintiff contends that McCarthy did sell his
grandfather's memorabilia in the past to make money, and
a reasonable fact finder could infer that, in this instance,
he was motivated to make a profit or generate money for his
business, given that McCarthy Tree was relatively new. (#46
at 15-16.) Additionally, Defendants cite various district
court cases for the proposition that a breach of contract
alone does not amount to an unfair act or practice under
chapter 93A. (#44 at 15.) However, “whether a
particular set of acts, in their factual setting, is unfair
or deceptive is a question of fact, ” South
Shore, 183 F.Supp.3d at 218 (citation omitted), and the
record contains multiple instances where a reasonable jury
could infer that McCarthy's actions were unfair or
deceptive. Genuine issues of material fact exist, foreclosing
summary judgment on Plaintiff's chapter 93A claim.
of the foregoing reasons, Defendants' motion for summary
judgment is DENIED in its entirety.