United States District Court, D. Maine
DAVID J. HIRSCHFELD & TAMI L. HIRSCHFELD, Plaintiffs,
ATHENA POINT LOOKOUT, LLC, Defendant.
ORDER ON MOTION TO DISMISS
Z. Singal United States District Judge
the Court is Defendant's Motion to Dismiss (ECF No. 18),
which seeks dismissal of Plaintiffs' Amended Complaint
(ECF No. 17) for failure to state a claim upon which relief
can be granted. Having reviewed the Motion, as well as the
related memoranda filed by both parties (ECF Nos. 21 &
22), the Court hereby GRANTS the Motion.
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual matter “to ‘state a claim to relief that
is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In
evaluating whether a complaint states a plausible claim, we
‘perform [a] two-step analysis.'”
Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016)
(alteration in original) (quoting Cardigan Mtn. Sch. v.
N.H. Ins. Co., 787 F.3d. 82, 84 (1st Cir. 2015)). First,
“the court must separate the complaint's factual
allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” Morales-Cruz v. Univ. of Puerto
Rico, 676 F.3d 220, 224 (1st Cir. 2012) (citing
Iqbal, 556 U.S. at 678). Second, the court
“must determine whether ‘the factual content
… allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.'” Id. at 224 (quoting
Iqbal, 556 U.S. at 678). “This standard is
‘not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.'” Saldivar, 818 F.3d at 18
(quoting Iqbal, 556 U.S. at 678).
evaluating the plausibility of a legal claim requires the
reviewing court to draw on its judicial experience and common
sense, the court may not disregard properly pled factual
allegations, even if it strikes a savvy judge that actual
proof of those facts is improbable.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
(1st Cir. 2011) (internal citations and quotations omitted).
Rather, “[t]he relevant inquiry focuses on the
reasonableness of the inference of liability” from the
facts. Id. at 13. As here, when “a
complaint's factual allegations are expressly linked
to-and admittedly dependent upon-a document (the authenticity
of which is not challenged), that document effectively merges
into the pleadings and the trial court can review it in
deciding a motion to dismiss.” Beddall v. State St.
Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998).
With these principles in mind, the Court now outlines the
well-pled factual allegations.
in January 2018, and continuing through April 6, 2018,
Plaintiffs David and Tami Hirschfeld (together,
“Plaintiffs”), engaged in negotiations to buy
property from Defendant Athena Point Lookout, LLC
(“Defendant”). The property, known as Point
Lookout Resort & Conference Center (“Point
Lookout”), is located in Northport, Maine. On April 4,
2018, Plaintiffs tendered their “final offer” of
$6, 500, 000 for the property. (Am. Compl. ¶ 7) The next
day, April 5, after Defendant had notified Plaintiffs it
would be accepting another offer, Plaintiffs' agent
called Defendant's agent and asked whether an increased
bid of $7, 000, 000 would make a difference. Defendant's
agent responded “I think that might.”
(Id. at ¶ 8) Plaintiffs' agent then asked
Defendant's agent “[i]f I get them up to $7, 000,
000, you aren't going to shop this offer, are you?”
(Id.) Defendant's agent replied
“definitely not!” (Id.)
that conversation, Defendant prepared a two-page letter of
intent (“LOI”)- appended to the Amended Complaint
as Exhibit A-and sent it to Plaintiffs. Upon doing so,
Defendant advised Plaintiffs that if Plaintiffs signed the
LOI, Defendant would likewise sign, and the parties would
“have a deal.” (Id. at ¶ 9) The LOI
enumerates a purchase price of $7, 000, 000, provides a
description of the property, outlines procedures for, among
other things, due diligence, and states the following
“Definitive Agreement” between the parties:
The Parties will negotiate a definitive Purchase and Sale
Agreement (the “PSA”), which will provide for A)
the insurable transfer of the Portfolio free and clear of all
liens and B) the assignment of all leases covering tenants in
possession, and all contracts and reservations. Buyer and
Seller will make best efforts to execute a Purchase and Sale
Agreement within (15) days of this agreement.
(Ex. A to Am. Compl. (ECF No. 17-1)) It also specifies, just
above the signature lines, that “Seller and Buyer
acknowledge that this proposal is not binding as there are
multiple offers being considered and is intended as the basis
for the preparation of documents for the definitive purchase
and sale agreement.” (Id.) On April 5, 2018,
Plaintiffs and Defendant signed the LOI.
April 6, 2018, Defendant twice represented to Plaintiffs that
the parties “had a deal and that [it] would be
preparing the purchase and sale agreement.” (Am. Compl.
¶ 13) Plaintiffs then, “[i]n reliance upon the
Defendant's representations that the parties had a deal,
” reduced the price of land they already had listed for
sale in Montana. (Id. at ¶ 14)
Plaintiffs' goal in doing so was to raise money for the
Point Lookout purchase price. However, three hours after
representing that it was preparing the purchase and sale
agreement, Defendant informed Plaintiffs that it had entered
into a contract to sell the property to another party who had
offered more money. Plaintiffs then advised Defendant that
they considered the LOI to be a binding contract. In
response, Defendant stated “we get out of these all the
time.” (Id. at ¶ 16) On April 23, 2018,
Plaintiffs initiated this litigation in state court.
Defendant removed the case to this Court on May 18, 2018.
on the foregoing factual allegations, Plaintiffs argue that
Defendant violated state law. Specifically, Plaintiffs'
Amended Complaint lists six claims: Specific Performance
(Count I), Breach of Contract (Count II), Declaratory Relief
(Count III), Promissory Estoppel/Equitable Estoppel (Count
IV), Negligent Misrepresentation (Count V), and Fraudulent
Misrepresentation (Count VI). For the reasons explained below,
the Court concludes that the facts as pled are insufficient
to state any of these claims.
Breach of Contract & Declaratory Relief (Counts ...