United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON MOTION TO DISMISS
COUNTERCLAIMS AND MOTION TO AMEND COUNTERCLAIMS
H. Rich III United States Magistrate Judge.
maritime breach of contract action, two of the defendants,
Sea3, LLC (“Sea3”) and Robert H. Larsen
(“Mr. Larsen”) (together, the
“defendants”), have brought counterclaims against
plaintiff Maine Windjammers, Inc. (the
“plaintiff” or “Windjammers”)
alleging misrepresentation (Count I), fraud in the inducement
(Count II), breach of contract (Count III), breach of implied
warranty of seaworthiness (Count IV), breach of express
warranty of seaworthiness (Count V), quantum
meruit (Count VI), quasi contract/unjust enrichment
(Count VII), and deceptive trade practices (Count VIII).
See Counterclaims, commencing on page 13 of
Defendants' Answer to Plaintiff's Amended Complaint;
Affirmative Defenses; and Counterclaims (ECF No. 20),
¶¶ 11-48. The plaintiff moves to dismiss (i) Counts
I and II on the grounds that they conflict with the terms of
the parties' agreement and, in any event, fail to meet
the heightened fraud pleading requirement of Rule 9(b), (ii)
Count VIII under Rule 12(b)(6) because it seeks damages
unavailable under the relevant statute, and (iii) Counts
I-VIII as to Mr. Larsen because he lacks standing to sue in
his personal capacity. See [Motion To Dismiss and]
Memorandum of Law in Support of Maine Windjammer[s],
Inc.'s Motion To Dismiss Count I, II, and VIII of Sea3
and [Counts I-VIII of] Larsen's Counterclaims
(“Motion To Dismiss”) (ECF No. 22) at 1-2. In
turn, the defendants seek to add details to their fraud
counterclaims (Counts I and II) and to pursue attorney fees
pursuant to their Maine Uniform Deceptive Trade Practices Act
(“MUDTPA”) counterclaim (Count VIII).
See Motion To Amend at 2-4. See
Defendants/Counterclaim Plaintiffs Sea3, LLC's and Robert
H. Larsen's Motion To Amend Counterclaims (“Motion
To Amend”) (ECF No. 24) at 2-4.
reasons that follow, I grant the defendants' motion to
amend Counts I and II and deny it as to Count VIII, and I
grant the plaintiff's motion to dismiss Count VIII in its
entirety and Counts I-V to the extent pressed by Mr. Larsen,
and otherwise deny it.
Applicable Legal Standards
Motion To Amend
to Rule 15(a)(2), “[t]he court should freely give leave
[to amend a pleading] when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Leave to amend should be granted in
the absence of reasons “such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc .....
” Foman v. Davis, 371 U.S. 178, 182 (1962).
First Circuit has explained:
A motion to amend a complaint will be treated differently
depending on its timing and the context in which it is filed.
. . . As a case progresses, and the issues are joined, the
burden on a plaintiff seeking to amend a complaint becomes
more exacting. Scheduling orders, for example, typically
establish a cut-off date for amendments (as was apparently
the case here). Once a scheduling order is in place, the
liberal default rule is replaced by the more demanding
“good cause” standard of Fed.R.Civ.P. 16(b). This
standard focuses on the diligence (or lack thereof) of the
moving party more than it does on any prejudice to the
party-opponent. Where the motion to amend is filed after the
opposing party has timely moved for summary judgment, a
plaintiff is required to show “substantial and
convincing evidence” to justify a belated attempt to
amend a complaint.
Steir v. Girl Scouts of the USA, 383 F.3d 7, 11-12
(1st Cir. 2004) (citations, internal quotation marks, and
defendants filed their motion on October 9, 2018,
see Motion To Amend at 1, prior to the parties'
November 7, 2018, deadline to amend pleadings and join
parties, see Scheduling Order (ECF No. 11) at 2.
Therefore, the liberal default rule applies.
Motion To Dismiss
Supreme Court has stated:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations and internal punctuation omitted).F This
standard requires the pleading of “only enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
ruling on a motion to dismiss under Rule 12(b)(6), a court
assumes the truth of all of the well-pleaded facts in the
complaint and draws all reasonable inferences in favor of the
plaintiff. Román-Oliveras v. P.R. Elec. Power
Auth., 655 F.3d 43, 45 (1st Cir. 2011). “In so
doing, however, we disregard facts which have been
conclusively contradicted by [the alleging party's]
concessions or otherwise.” Lister v. Bank of Am.,
N.A., 790 F.3d 20, 23 (1st Cir. 2015) (citations and
internal quotation marks omitted). Ordinarily, in weighing a
Rule 12(b)(6) motion, “a court may not consider any
documents that are outside of the complaint, or not expressly
incorporated therein, unless the motion is converted into one
for summary judgment.” Alternative Energy, Inc. v.
St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33
(1st Cir. 2001). “There is, however, a narrow exception
for documents the authenticity of which are not disputed by
the parties; for official public records; for documents
central to plaintiffs' claim; or for documents
sufficiently referred to in the complaint.”
Id. (citation and internal quotation marks omitted).
plaintiff brings claims for breach of contract, promissory
estoppel, and unjust enrichment, see Complaint (ECF