APB Realty, Inc. v. Leb. & Blue Mountain Ry.

1

APB REALTY, INC., Plaintiff/Defendant-in-Counterclaim, v. LEBANON AND BLUE MOUNTAIN RAILWAY, LLC, Defendant/Plaintiff-in-Counterclaim v. KIRK BRYANT, Defendant-in-Counterclaim

Civ. No. 21-11347-MLW

United States District Court, D. Massachusetts

September 9, 2024

MEMORANDUM AND ORDER

WOLF D.J.

I. BACKGROUND

This case arises from an unsuccessful purchase and sale transaction for 100 Aluminum Rapid Discharge Coal Railcars ("RD Cars") between plaintiff APB Realty, Inc. ("APB"), which was seeking to sell the RD Cars, and defendant Lebanon and Blue Mountain Railway, LLC ("LBMR"), which was seeking to buy them. APB claims LBMR is liable for breach of contract for the purchase and sale of the RD Cars and breach of a Non-Circumvent Agreement ("NCA") (Counts I and III of the Amended Complaint (Dkt. No. 10)). APB also seeks declaratory relief regarding a $360,000 payment sent by LBMR to APB (Count II of the Amended Complaint) . LBMR countersued, alleging that APB is liable for unjust enrichment, promissory estoppel, conversion, and fraudulent inducement, and also claiming that both APB and its general manager, Kirk Bryant ("Bryant"), violated Mass. Gen. L. ch. 93A, §11. See Amended Counterclaims (Dkt. No. 42).

LBMR filed a renewed motion for partial summary judgment (Dkt. No. 68), which APB and Bryant jointly opposed (Dkt. No. 72). On March 25, 2024, Magistrate Judge Page Kelley issued a Report and Recommendation (the "Report")^[1] recommending that the court allow LBMR's motion for summary judgment on all counts of the Amended Complaint and Counts I (unjust enrichment) and III (conversion) of the Amended Counterclaim, and that the court deny the motion for summary judgment on Counts V and VI (Chapter 93A claims against APB and Bryant, respectively) of the Amended Counterclaim. See Report (Dkt. No. 76).

APB has objected to the recommendation that the court allow LBMR's motion for summary judgment on Counts I (breach of contract) and II (declaratory judgment) of the Amended Complaint and Counts I (unjust enrichment) and III (conversion) of the Amended Counterclaim. See APB Objections at 2 (Dkt. No. 77). APB does not object to the recommendation that the court allow LBMR's motion for summary judgment on Count III (breach of the NCA) of the Amended Complaint. See id. LBMR has replied to APB's objections. See LBMR Reply to APB Objections (Dkt. No. 78). LBMR does not, however, object to the Magistrate Judge's recommendation that the court deny its motion for summary judgment on Counts V and VI (Chapter 93A claims against APB and Bryant, respectively) of the Amended Counterclaim.

The court assumes that the parties agree with the recommendations to which neither party has objected. See Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985). Therefore, the court is adopting the Magistrate Judge's recommendation to allow LBMR's motion for summary judgment on APB's breach of contract claim related to the non-circumvent agreement (Count III of the Amended Complaint), see Report at 18-19, and to deny LBMR's motion for summary judgment on its Chapter 93A claims (Counts V and VI of LBMR's Amended Counterclaims), see id. at 22-24.

The court has reviewed de novo the matters to which APB has properly objected. See 28 U.S.C. §636(b)(1); Fed.R.Civ.P. 72(b)(3). The court finds each of APB's objections unmeritorious. More specifically, the court finds that the Magistrate Judge correctly stated the applicable law^[2] and identified the material facts not in genuine dispute. The court reaches the same conclusions as the Magistrate Judge, although, as explained in this Memorandum, its reasoning differs in part regarding its decision to allow LBMR's motion for summary judgment on APB's breach of contract claim (Count I of the Amended Complaint).

II. THE RECORD

The Magistrate Judge properly deemed LBMR's statement of undisputed material facts ("SUMF", Dkt. No. 49^[3]) uncontroverted due to APB's failure to comply with Local Rule 56.1. See Report at 3-6. Local Rule 56.1 states that the party opposing a motion for summary judgment "shall include a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation." L.R. 56.1 (emphasis added). APB has not complied with this requirement. Despite repeatedly stating that it "disputes the characterizations" contained in LBMR's SUMF, APB fails to identify the specific facts that it disputes or the evidentiary basis for those disputes. See APB Resp. to LBMR SUMF (Dkt. No. 51) . In addition, APB only includes a single citation to the record, which lacks page references, in its response to LBMR's SUMF. See id. ¶39 (citing to the entirety of Bryant's deposition).

LBMR raised the issue of APB's non-compliance with Local Rule 56.1 on June 2, 2023. See LBMR Reply Supp'g MSJ at 2-3 (Dkt. No. 54) . Over the next six months, the parties participated in two hearings held by the Magistrate Judge and supplemented their summary judgment briefing. However, APB made no attempt to supplement its response to LBMR's SUMF or otherwise comply with Local Rule 56.1. See Report at 5. In fact, APB does not seem to contest the Magistrate Judge's determination that it failed to comply with Local Rule 56.1. See APB Objections at 4 ("APB hereby references the Court's further acknowledgment that 'the Court has the discretion to decide whether to impose the sanction of deeming the [moving party's] factual assertions to be admitted.["] (quoting Butters v. Wells Fargo Advisors, LLC, Civ. No. 10-10072, 2012 WL 5959986, at *2 (D. Mass. Nov. 27, 2012)). Instead, APB emphasizes that it disputes specific facts, supported with record citations and page references, in its opposition to LBMR's motion for summary judgment. See id.; APB Renewed Mem. Supp'g Opp. to LBMR MSJ at 3-5 (Dkt. No. 73). This is true, but does not excuse APB's knowing failure to comply with Local Rule 56.1.

Local Rules "prevent[] litigants from shifting the burden of organizing evidence to the district court." Zimmerman v. Puccio, 613 F.3d 60, 63 (1st Cir. 2010) . A district court may sanction a party who fails to comply with Local Rule 56.1 by deeming the moving party's factual assertions to be admitted. See id.; In re Kupperstein, 61 F.4th 1, 6 (1st Cir. 2023); see also Saad v. JOLO, Inc., 633 F.Supp.3d 478, 479 n.1 (D. Mass. 2022) .^[4] "Given the vital purpose that [local] rules serve, litigants ignore them at their peril." Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007) . APB has not offered a valid excuse for its failure to comply with Local Rule 56.1. Therefore, the court adopts the Magistrate Judge's recommendation and deems LBMR's SUMF uncontroverted for the purposes of this Memorandum and Order. See Report at 6.

III. DISCUSSION

A. APB's Breach of Contract and Declaratory Judgment Claims (Counts I and II of the Amended Complaint)

In the Report, the Magistrate Judge correctly stated the summary judgment standard. See Report at 9-10.

This court finds that LBMR is entitled to summary judgment on APB's breach of contract and declaratory judgment claims because, based on the record before the court, no rational factfinder could conclude that a contract for the purchase and sale of RD Cars was formed between APB and LBMR under the UCC.

Under the UCC, a "contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract." M.G.L. ch.106 §2-204(1). When material terms of an agreement are unspecified, "the intent of the contracting parties becomes particularly relevant to conclude the existence of a final binding contract." Hoover v. Osley & Whitney, Inc., 915 F.2d 1556, at *4 (1st Cir. 1990) (unpublished) (emphasis added) (citing M.G.L. ch. 106 §2-204). "The more terms the parties leave open, the less likely it is that they have intended to conclude a binding agreement, but their actions may be frequently conclusive on the matter despite the omissions." Id. §2-204 cmt. ¶3. While the existence of a contract is a question of fact, see Chang v. Winklevoss, 95 Mass.App.Ct. 202, 212 (2019), the issue of whether an agreement is too indefinite to constitute a valid contract is a question of law, see Schwanbeck v. Federal Mogul Corp., 412 Mass. 703, 709 (1992).

APB contends that the parties formed an oral contract during a telephone call on June 17, 2021, pursuant to which they agreed that LBMR would send a non-refundable deposit of $360,000. See APB Objections at 3. However, as explained earlier, the court has deemed LBMR's SUMF uncontroverted. Therefore, the record does not contain any evidence that the parties formed an oral contract or evidence that they agreed the deposit would be non-refundable during a telephone call on June 17, 2021. See LBMR SUMF ¶¶6-11.

Instead the record contains evidence of the following relevant facts. On June 15, 2021, after learning of LBMR's interest in purchasing rail cars, Bryant emailed specifications for 100 RD Cars to Allen Keller ("Keller"), the founder and former president of LBMR. Bryant Dep. 38:15-24; 40:17-21 (Dkt. No. 49-1). On June 16, 2021, Bryant emailed Keller again, writing that APB would "need a deposit to hold [the rail cars] for [Keller], there are 3 other parties getting close to doing something." Id. at 44:12-14. Bryant emailed Keller a one-page invoice for the proposed transaction the following day. See Jun. 17, 2021 Email & Invoice (Dt. No. 49-3). The invoice described the RD Cars and listed the number of cars for sale, the price per car, and the total price for the proposed transaction. See id. at 2. It also noted a "discount"...