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Wollaston Industries, LLC v. Ciccone

United States District Court, D. Massachusetts

December 16, 2019

WOLLASTON INDUSTRIES, LLC, Plaintiffs,
v.
ROBERT E. CICCONE, d/b/a R.E. CICCONE DOOR SERVICES, FRANK E. CICCONE, d/b/a F.E. CICCONE AND CO. and R.E. CICCONE DOOR SERVICES, LLC, Defendants.

          MEMORANDUM AND ORDER

          Patti B. Saris Chief United States District Judge.

         INTRODUCTION

         This is a contract dispute arising from the recent renovations of the Longfellow Bridge and the Hatch Shell in Boston, Massachusetts. Wollaston Industries, LLC (“Wollaston”) has sued Robert E. Ciccone, Frank E. Ciccone, and R.E. Ciccone Door Services, LLC for (1) breach of contract, (2) fraud in the inducement, (3) fraudulent conversion of property, and (4) and violations of Chapter 93A. Frank E. Ciccone now moves for summary judgment on all counts, and all the Defendants jointly move to dismiss the fraud-based claims. After hearing, the Court ALLOWS Frank Ciccone's motion for summary judgement (Dkt. No. 25) and ALLOWS Defendants' motions to dismiss (Dkt. Nos. 24 & 31).

         BACKGROUND

         Unless otherwise noted, the following factual background comes from the complaint and must be taken as true at this stage. See Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014).

         I. Parties

         Wollaston is a Massachusetts based limited liability metals manufacturing company. Robert E. Ciccone (“Robert”) is a New Hampshire resident and Manager of R.E. Ciccone Door Services (“Ciccone”), a New Hampshire limited liability company that works in commercial door service and repair. Frank E. Ciccone (“Frank”) is an Arizona resident and Robert Ciccone's father. Frank Ciccone formerly did business as F.E. Ciccone & Co., a Massachusetts corporation which dissolved in 1990. Between 2016 and 2018, Ciccone hired Wollaston as a sub-contractor for two construction projects in Boston, Massachusetts: the Longfellow Bridge in 2016 and the Hatch Shell in 2018.

         II. Procedural History

         Wollaston filed a complaint with the Bristol County Superior Court on March 22, 2019. The case was removed to this Court on April 9, 2019. Defendants filed an answer and counterclaim for breach of contract against Wollaston on May 1, 2019. Following a failed attempt to mediate the dispute through ADR, Frank Ciccone filed a motion for summary judgment on July 12, 2019. Plaintiff has not opposed that motion. On July 12, 2019, Defendants filed a motion to dismiss the fraudulent conversion claim (Count III). Then, on July 24, 2019, Defendants filed a motion to dismiss the fraudulent inducement claim (Count II). Wollaston did oppose both motions to dismiss. The Court held a hearing on the pending motions on November 6, 2019.

         III. Facts

         On December 12, 2016, Ciccone issued a purchase order to Wollaston along with a $12, 000 deposit for “casting and fabrication of monumental doors and frames” on an open-ended basis for the rebuilding of the Longfellow Bridge, connecting Boston to Cambridge at Charles Circle (“Longfellow Bridge SubContract”). The primary contractor on the Longfellow Bridge project was White-Skanska-Consigli Joint Venture (“White”). The project was owned by the Commonwealth of Massachusetts. Under the Longfellow Bridge Sub-Contract, Ciccone provided jobs and occasional payments to Wollaston for the work it undertook on the Longfellow Bridge. As of November 30, 2018, Ciccone still owed Wollaston $94, 017.83 for work performed pursuant to the Longfellow Bridge Sub-Contract.

         On or about February 13, 2018, Ciccone contracted with Wollaston to provide repair and restoration of monumental bronze doors for installation at the Hatch Shell on the Charles River Esplanade (“Hatch Shell Sub-Contract”). Ciccone was hired as a sub-contractor to work on the Hatch Shell's restoration and waterproofing by a separate prime contractor, Folan Waterproofing and Construction, Inc. (“Folan”), at the request of the owner, the Commonwealth of Massachusetts. Under the Hatch Shell Sub-Contract, Ciccone provided jobs and occasional payments to Wollaston for the work on the Hatch Shell. As of November 30, 2018, Ciccone still owed Wollaston $44, 087.19 for work performed pursuant to the Hatch Shell Sub-Contract In total, Wollaston claims that Ciccone still owes it $138, 105.02 under the two sub-contracts.

         DISCUSSION

         There are three pending motions before the Court. Frank Ciccone has moved for summary judgment on the basis that he was erroneously named as a defendant. The Court will allow that motion as unopposed.[1] The two remaining motion to dismiss are for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). When faced with a motion to dismiss for failure to state a claim, the Court must set aside any statements that are merely conclusory and examine only the pleader's factual allegations. See Ashcroft v. Iqbal,556 U.S. 662, 679 (2009). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. A claim ...


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