Preview
24
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT DEPARTMENT,
CIVIL ACTION NO. 2184CV01001 ie
ANTAMEX INDUSTRIES ULC,
Plaintiff,
V.
OLDCASTLE BUILDINGENVELOPE,
ING;
Defendant.
CONSOLIDATED WITH
ANTAMEX INDUSTRIES ULC,
Plaintiff,
Vv
SUFFOLK CONSTRUCTION COMPANY, CIVIL ACTION NO. 2184CV01929
INC., FEDERAL INSURANCE COMPANY,
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, and LIBERTY MUTUAL
INSURANCE COMPANY,
Defendants.
PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION TO AMEND COMPLAINT IN C.A. NO. 2184CV01989
Plaintiff Antamex Industries ULC (““Antamex”) hereby submits this memorandum of law
in support of its Motion to Amend the Complaint and Jury Demand previously filed in Civil
Action No. 2184CV01929. More specifically, Antamex seeks to amend the Complaint and Jury
Demand to assert additional claims against Defendant Suffolk Construction Company, Inc.
(“Suffolk”).
As set forth in more detail below, discovery to date in the above-captioned consolidated
matters demonstrates that Suffolk’s actions provide a sufficient basis for Antamex to seek relief
from Suffolk on claims sounding in breach of contract, breach of the covenant of good faith and
fair dealing, unjust enrichment / quantum meruit, promissory estoppel, conversion, and
violations of M.G.L. c. 93A. Since these claims are not futile, are made in good faith and in a
timely manner, and would not unfairly prejudice any party, this Court should grant Antamex
leave to file its Amended Complaint and Jury Demand.
I RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Antamex was a second-tier subcontractor to Oldcastle who in turn was a subcontractor to
the general contractor, Suffolk, on the One Dalton Street construction project in Boston (the
“Project”). Antamex initiated Civil Action No. 2184CV01001 based on an alleged breach of its
subcontract with Oldcastle (the “Sub-Subcontract”) and foreclosure of a mechanics’ lien
pursuant to M.G.L. c. 254. Antamex is owed $1,350,757.35 for the work it performed on the
Project. The amount includes $681,312.56 in unpaid base contract work, and $669,444.79 for
additional work over and above the contract price ($225,000.00 of which Suffolk unilaterally
deducted as a so-called “negotiated discount”).
On June 21, 2021, Suffolk filed a lien bond (the “Bond”) with the Suffolk County
Registry of Deeds, which identified Suffolk as principal and Defendants Federal Insurance
Company, Fidelity and Deposit Company of Maryland, and Liberty Mutual Insurance Company
' Antamex assented to the joint motion submitted on the within date by Suffolk and Defendant Oldcastle
BuildingEnvelope, Inc. (“Oldcastle”) to assert claims against one another. That joint motion is premised in part on
claims which are set forth in the proposed Amended Complaint and Jury Demand. By relying on such claims in
support of their own joint motion, Antamex presumes there to be no opposition to this motion.
as sureties (collectively, the “Sureties”). Pursuant to M.G.L. c. 254, § 14, Antamex filed a
Complaint and Jury Demand to initiate Civil Action No. 2184CV01929 in order to bring a claim
on the Bond against Suffolk and the Sureties. On October 27, 2021, Antamex filed an assented-
to motion to consolidate Civil Action Nos. 2184CV01001 and 2184CV01929, which this Court
allowed on November 1, 2021.
On May 15, 2023, the parties in these consolidated matters filed a joint motion secking,
inter alia, adoption of a proposed amended tracking order for these consolidated matters. See
Proposed Amended Tracking Order and Joint Motion to Continue Rule 16 Conference (“Joint
Motion”).? The parties proposed a deadline of June 16, 2023 to serve motions to amend
pleadings pursuant to Mass. R. Civ. P. 15. See id. at 3. On May 17, 2023, this Court allowed the
joint motion, stating that the clerk “shall issue an Amended Tracking Order, adopting the case
deadlines proposed on page 3 hereof.”
I. ARGUMENT
“[A] party may amend his pleading...by leave of court...and leave shall be freely given
when justice so requires.” Mass. R. Civ. P. 15(a). “{L]eave should be granted unless there
appears some good reason for denying the motion.” Vakil v. Vakil, 450 Mass. 411, 417 (2008),
quoting Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549 (1987). The “good reasons” for
denying a motion to amend include “undue delay, bad faith or dilatory motive on the part of the
movant...undue prejudice to the moving party by virtue of allowance of the amendment, [and]
futility of the amendment...” Mathis v. Mass. Elec. Co., 409 Mass. 256, 264 (1991), quoting
Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 290 (1977). In considering a
motion to amend, a judge considers “lateness, delay, futility, suspect motive, prior opportunity to
2 A true and accurate copy of the Joint Motion may be found on this Court’s docket at File Ref. Nbr. 21 in Civil
Action No. 2184CV01001.
plead the claim, and undue prejudice to the opposing party.” Audubon Hill S. Condo. Assn. v.
Community Assn. Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 471-72 (2012).
As set forth below, there is no “good reason” to deny Antamex’s motion.
A. Antamex’s Motion is Timely and Offered in Good Faith
Antamex’s request is made in a timely manner and pursuant to a deadline agreed to by
the parties. As set forth in the Joint Motion, the parties conferred and agreed to a deadline of
June 16, 2023 for serving motions to amend the pleadings in these consolidated cases. See Joint
Motion at 3. By serving its motion in accordance with the tracking order deadline, Antamex’s
motion is timely. Antamex’s motion is also made in good faith, as it is submitted for the
purposes of clarifying the roles and responsibilities of the respective defendants in these
consolidated matters regarding Antamex’s damages, and Antamex’s request is not interposed for
the purposes of unnecessarily delaying this litigation.
B Antamex’s Motion Will Not Unduly Prejudice Suffolk
All of the allegations and claims Antamex seeks to add in the Amended Complaint and
Jury Demand concern the same events and occurrences already at issue in these consolidated
matters. Suffolk will not be prejudiced by the Amended Complaint and Jury Demand because
the allegations and claims involve events about which Suffolk already knew (or reasonably
should have known). As the general contractor on the Project, Suffolk was (or reasonably should
have been aware) of Antamex’s work on the Project at all times. Suffolk communicated directly
with Suffolk regarding amounts due and owing to Antamex, including Suffolk’s improper
attempt to impose a $225,000.00 “discount” against Antamex. In addition, in their Joint Motion
for Joinder, Defendants Suffolk and Oldcastle have indicated that they intend to bring claims
against one another in the form of third-party claims or as cross-claims which will necessarily
arise out of and relate to the same nucleus of facts as Antamex’s proposed amended claims
against Suffolk.
Cc. Antamex’s New Causes of Action are Not Futile
Antamex seeks to add six additional causes of action against Suffolk: (1) breach of
contract; (2) breach of the covenant of good faith and fair dealing; (3) unjust enrichment /
quantum meruit; (4) promissory estoppel; (5) conversion; and (6) unfair and deceptive acts in
violation of M.G.L. c. 93A. Each of these claims, as alleged in the Amended Complaint and
Jury Demand are not futile because they would survive a motion to dismiss. Cf Chang v.
Winklevoss, 95 Mass. App. Ct. 202, 212 (2019) (“An amended complaint is futile if the amended
claims would not survive a motion to dismiss for failure to state a claim”).
As alleged in the proposed Amended Complaint and Jury Demand, Antamex secks to
bring claims directly against Suffolk based upon Suffolk’s direction to Antamex to perform
certain work on the Project. Antamex performed all such work in a workmanlike and timely
manner, and yet Suffolk failed and refused to pay Antamex for such work. Antamex had a
reasonable expectation of payment from Suffolk such that it should be entitled to bring claims
for breach of contract,? unjust enrichment and/or promissory estoppel against Suffolk. See 477
Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 523 (2019) (setting forth the elements
for alleging a breach of contract as: (1) an agreement between the parties, supported by
consideration; (2) plaintiff was ready, willing, and able to perform; (3) defendant committed a
breach of the contract; and (4) plaintiff sustained damages); Santagate v. Tower, 64 Mass. App.
Ct. 324, 329 (2005) (stating unjust enrichment is the “retention of money or property of another
3 Given that inherent in every contract in Massachusetts is the implied covenant of good faith and fair dealing,
Antamex also should be entitled to bring a claim alleging Suffolk breached that covenant. See Eigerman v. Putnam
Invs., Inc., 450 Mass. 281, 287 (2007) (noting the covenant of good faith and fair dealing is an implied covenant
“applicable to every contract in Massachusetts”).
against the fundamental principles of justice or equity in good conscience); see also Sullivan v.
Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 27-28 (2006) (promissory
estoppel may arise where there is “(1) a representation intended to induce reliance on the part of
a person to whom the representation is made; (2) an act or omission by that person in reasonable
reliance on the representation; and (3) detriment as a consequence of the act or omission”).
This Court should not credit any assertion by Suffolk that Antamex lacks standing to
assert these causes of action on the basis that there was privity between only Suffolk and
Antamex. As an initial matter, the Amended Complaint and Jury Demand sufficiently alleges
that there was communication directly between Antamex and Suffolk regarding the $444,444.79
of additional work, as well as Suffolk’s unilateral $225,000.00 deduction. Nonetheless, even if
there was no direct communication between Suffolk and Antamex (which there was), Antamex’s
conduct on the Project led to a reasonable expectation of it receiving payment from the
contractual arrangement between Suffolk and Oldcastle. See Mike Glynn & Co. v. Hy-Brasil
Rests., Inc., 75 Mass. App. Ct. 322, 327 (2009).
In addition, Antamex is owed money for work it timely and properly performed on the
Project, Suffolk is aware that Antamex is owed that money, and Suffolk has refused to provide
those funds to Antamex. See In re Hilson, 448 Mass. 603, 611 (2007) (“Money may be the
subject of conversion.”). As such, Antamex should be entitled to assert a claim of conversion
against Suffolk. Suffolk’s actions, as alleged in the Amended Complaint and Jury Demand, also
provide a sufficient basis for a violation of M.G.L. c. 93A. These actions include, without
limitation, refusing to pay Antamex without justification, imposing a unilateral, so-called
“negotiated discount” of $225,000.00 with no basis or support, promising but failing to pay
Antamex in order to induce Antamex to continue to performing work on the Project, and offering
false reasons to justify its non-payments.
Given that Antamex’s Amended Complaint and Jury Demand sets forth allegations that
plausibly suggest an entitlement to relief, Antamex would survive any attempted motion to
dismiss. See Jannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
iil. CONCLUSION
For the foregoing reasons, this Court should grant Antamex leave to file the Amended
Complaint and Jury Demand in Civil Action No. 2184CV01929.
Respectfully submitted,
PLAINTIFF
ANTAMEX INDUSTRIES ULC
By its attorneys,
La Be
Bradley L. Croft (BBO #633347)
Adam G. Gutbezahl (BBO #693275)
RUBERTO, ISRAEL & WEINER, P.C.
255 State Street, 7th Floor
Boston, MA 02109
(617) 742-4200
ble@riw.com
Dated: June 16, 2023 agg@riw.com
CERTIFICATE OF SERVICE
I hereby certify that on June 16, 2023, I caused a copy of the foregoing to be delivered by
electronic mail on all counsel of record.
Lo BE
Adam G. Gutbezahl
Preview
24 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT DEPARTMENT, CIVIL ACTION NO. 2184CV01001 ie ANTAMEX INDUSTRIES ULC, Plaintiff, V. OLDCASTLE BUILDINGENVELOPE, ING; Defendant. CONSOLIDATED WITH ANTAMEX INDUSTRIES ULC, Plaintiff, Vv SUFFOLK CONSTRUCTION COMPANY, CIVIL ACTION NO. 2184CV01929 INC., FEDERAL INSURANCE COMPANY, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and LIBERTY MUTUAL INSURANCE COMPANY, Defendants. PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO AMEND COMPLAINT IN C.A. NO. 2184CV01989 Plaintiff Antamex Industries ULC (““Antamex”) hereby submits this memorandum of law in support of its Motion to Amend the Complaint and Jury Demand previously filed in Civil Action No. 2184CV01929. More specifically, Antamex seeks to amend the Complaint and Jury Demand to assert additional claims against Defendant Suffolk Construction Company, Inc. (“Suffolk”). As set forth in more detail below, discovery to date in the above-captioned consolidated matters demonstrates that Suffolk’s actions provide a sufficient basis for Antamex to seek relief from Suffolk on claims sounding in breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment / quantum meruit, promissory estoppel, conversion, and violations of M.G.L. c. 93A. Since these claims are not futile, are made in good faith and in a timely manner, and would not unfairly prejudice any party, this Court should grant Antamex leave to file its Amended Complaint and Jury Demand. I RELEVANT FACTUAL & PROCEDURAL BACKGROUND Antamex was a second-tier subcontractor to Oldcastle who in turn was a subcontractor to the general contractor, Suffolk, on the One Dalton Street construction project in Boston (the “Project”). Antamex initiated Civil Action No. 2184CV01001 based on an alleged breach of its subcontract with Oldcastle (the “Sub-Subcontract”) and foreclosure of a mechanics’ lien pursuant to M.G.L. c. 254. Antamex is owed $1,350,757.35 for the work it performed on the Project. The amount includes $681,312.56 in unpaid base contract work, and $669,444.79 for additional work over and above the contract price ($225,000.00 of which Suffolk unilaterally deducted as a so-called “negotiated discount”). On June 21, 2021, Suffolk filed a lien bond (the “Bond”) with the Suffolk County Registry of Deeds, which identified Suffolk as principal and Defendants Federal Insurance Company, Fidelity and Deposit Company of Maryland, and Liberty Mutual Insurance Company ' Antamex assented to the joint motion submitted on the within date by Suffolk and Defendant Oldcastle BuildingEnvelope, Inc. (“Oldcastle”) to assert claims against one another. That joint motion is premised in part on claims which are set forth in the proposed Amended Complaint and Jury Demand. By relying on such claims in support of their own joint motion, Antamex presumes there to be no opposition to this motion. as sureties (collectively, the “Sureties”). Pursuant to M.G.L. c. 254, § 14, Antamex filed a Complaint and Jury Demand to initiate Civil Action No. 2184CV01929 in order to bring a claim on the Bond against Suffolk and the Sureties. On October 27, 2021, Antamex filed an assented- to motion to consolidate Civil Action Nos. 2184CV01001 and 2184CV01929, which this Court allowed on November 1, 2021. On May 15, 2023, the parties in these consolidated matters filed a joint motion secking, inter alia, adoption of a proposed amended tracking order for these consolidated matters. See Proposed Amended Tracking Order and Joint Motion to Continue Rule 16 Conference (“Joint Motion”).? The parties proposed a deadline of June 16, 2023 to serve motions to amend pleadings pursuant to Mass. R. Civ. P. 15. See id. at 3. On May 17, 2023, this Court allowed the joint motion, stating that the clerk “shall issue an Amended Tracking Order, adopting the case deadlines proposed on page 3 hereof.” I. ARGUMENT “[A] party may amend his pleading...by leave of court...and leave shall be freely given when justice so requires.” Mass. R. Civ. P. 15(a). “{L]eave should be granted unless there appears some good reason for denying the motion.” Vakil v. Vakil, 450 Mass. 411, 417 (2008), quoting Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549 (1987). The “good reasons” for denying a motion to amend include “undue delay, bad faith or dilatory motive on the part of the movant...undue prejudice to the moving party by virtue of allowance of the amendment, [and] futility of the amendment...” Mathis v. Mass. Elec. Co., 409 Mass. 256, 264 (1991), quoting Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 290 (1977). In considering a motion to amend, a judge considers “lateness, delay, futility, suspect motive, prior opportunity to 2 A true and accurate copy of the Joint Motion may be found on this Court’s docket at File Ref. Nbr. 21 in Civil Action No. 2184CV01001. plead the claim, and undue prejudice to the opposing party.” Audubon Hill S. Condo. Assn. v. Community Assn. Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 471-72 (2012). As set forth below, there is no “good reason” to deny Antamex’s motion. A. Antamex’s Motion is Timely and Offered in Good Faith Antamex’s request is made in a timely manner and pursuant to a deadline agreed to by the parties. As set forth in the Joint Motion, the parties conferred and agreed to a deadline of June 16, 2023 for serving motions to amend the pleadings in these consolidated cases. See Joint Motion at 3. By serving its motion in accordance with the tracking order deadline, Antamex’s motion is timely. Antamex’s motion is also made in good faith, as it is submitted for the purposes of clarifying the roles and responsibilities of the respective defendants in these consolidated matters regarding Antamex’s damages, and Antamex’s request is not interposed for the purposes of unnecessarily delaying this litigation. B Antamex’s Motion Will Not Unduly Prejudice Suffolk All of the allegations and claims Antamex seeks to add in the Amended Complaint and Jury Demand concern the same events and occurrences already at issue in these consolidated matters. Suffolk will not be prejudiced by the Amended Complaint and Jury Demand because the allegations and claims involve events about which Suffolk already knew (or reasonably should have known). As the general contractor on the Project, Suffolk was (or reasonably should have been aware) of Antamex’s work on the Project at all times. Suffolk communicated directly with Suffolk regarding amounts due and owing to Antamex, including Suffolk’s improper attempt to impose a $225,000.00 “discount” against Antamex. In addition, in their Joint Motion for Joinder, Defendants Suffolk and Oldcastle have indicated that they intend to bring claims against one another in the form of third-party claims or as cross-claims which will necessarily arise out of and relate to the same nucleus of facts as Antamex’s proposed amended claims against Suffolk. Cc. Antamex’s New Causes of Action are Not Futile Antamex seeks to add six additional causes of action against Suffolk: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) unjust enrichment / quantum meruit; (4) promissory estoppel; (5) conversion; and (6) unfair and deceptive acts in violation of M.G.L. c. 93A. Each of these claims, as alleged in the Amended Complaint and Jury Demand are not futile because they would survive a motion to dismiss. Cf Chang v. Winklevoss, 95 Mass. App. Ct. 202, 212 (2019) (“An amended complaint is futile if the amended claims would not survive a motion to dismiss for failure to state a claim”). As alleged in the proposed Amended Complaint and Jury Demand, Antamex secks to bring claims directly against Suffolk based upon Suffolk’s direction to Antamex to perform certain work on the Project. Antamex performed all such work in a workmanlike and timely manner, and yet Suffolk failed and refused to pay Antamex for such work. Antamex had a reasonable expectation of payment from Suffolk such that it should be entitled to bring claims for breach of contract,? unjust enrichment and/or promissory estoppel against Suffolk. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 523 (2019) (setting forth the elements for alleging a breach of contract as: (1) an agreement between the parties, supported by consideration; (2) plaintiff was ready, willing, and able to perform; (3) defendant committed a breach of the contract; and (4) plaintiff sustained damages); Santagate v. Tower, 64 Mass. App. Ct. 324, 329 (2005) (stating unjust enrichment is the “retention of money or property of another 3 Given that inherent in every contract in Massachusetts is the implied covenant of good faith and fair dealing, Antamex also should be entitled to bring a claim alleging Suffolk breached that covenant. See Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 287 (2007) (noting the covenant of good faith and fair dealing is an implied covenant “applicable to every contract in Massachusetts”). against the fundamental principles of justice or equity in good conscience); see also Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 27-28 (2006) (promissory estoppel may arise where there is “(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission”). This Court should not credit any assertion by Suffolk that Antamex lacks standing to assert these causes of action on the basis that there was privity between only Suffolk and Antamex. As an initial matter, the Amended Complaint and Jury Demand sufficiently alleges that there was communication directly between Antamex and Suffolk regarding the $444,444.79 of additional work, as well as Suffolk’s unilateral $225,000.00 deduction. Nonetheless, even if there was no direct communication between Suffolk and Antamex (which there was), Antamex’s conduct on the Project led to a reasonable expectation of it receiving payment from the contractual arrangement between Suffolk and Oldcastle. See Mike Glynn & Co. v. Hy-Brasil Rests., Inc., 75 Mass. App. Ct. 322, 327 (2009). In addition, Antamex is owed money for work it timely and properly performed on the Project, Suffolk is aware that Antamex is owed that money, and Suffolk has refused to provide those funds to Antamex. See In re Hilson, 448 Mass. 603, 611 (2007) (“Money may be the subject of conversion.”). As such, Antamex should be entitled to assert a claim of conversion against Suffolk. Suffolk’s actions, as alleged in the Amended Complaint and Jury Demand, also provide a sufficient basis for a violation of M.G.L. c. 93A. These actions include, without limitation, refusing to pay Antamex without justification, imposing a unilateral, so-called “negotiated discount” of $225,000.00 with no basis or support, promising but failing to pay Antamex in order to induce Antamex to continue to performing work on the Project, and offering false reasons to justify its non-payments. Given that Antamex’s Amended Complaint and Jury Demand sets forth allegations that plausibly suggest an entitlement to relief, Antamex would survive any attempted motion to dismiss. See Jannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). iil. CONCLUSION For the foregoing reasons, this Court should grant Antamex leave to file the Amended Complaint and Jury Demand in Civil Action No. 2184CV01929. Respectfully submitted, PLAINTIFF ANTAMEX INDUSTRIES ULC By its attorneys, La Be Bradley L. Croft (BBO #633347) Adam G. Gutbezahl (BBO #693275) RUBERTO, ISRAEL & WEINER, P.C. 255 State Street, 7th Floor Boston, MA 02109 (617) 742-4200 ble@riw.com Dated: June 16, 2023 agg@riw.com CERTIFICATE OF SERVICE I hereby certify that on June 16, 2023, I caused a copy of the foregoing to be delivered by electronic mail on all counsel of record. Lo BE Adam G. Gutbezahl