United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge.
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).
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).
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.
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.
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.
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.
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. 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 ...