Legal Document: Globi, Llc et al vs. Brightcove, Inc.

On October 04, 2023 a Brightcove, Inc.'s Memorandum in support of Motion for Partial Dismissal was filed involving a dispute between Globi, Llc, Intrigue, and Brightcove, Inc., for Contract / Business Cases in the District Court of Suffolk County.

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Date Filed 1/4/2024 1:56 PM
Superior Court - Suffolk BC
Docket Number 2384CV02251

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2384-CV-02251

GLOBI, LLC and INTRIGUE,
Plaintiffs,
Vv.

BRIGHTCOVE INC.
Defendant.

MEMORANDUM IN SUPPORT OF
DEFENDANT BRIGHTCOVE INC.’S MOTION FOR PARTIAL DISMISSAL

Defendant Brightcove Inc. (“Brightcove”) submits this memorandum of law in support of

Defendant Brightcove Inc.’s Motion for Partial Dismissal, which seeks dismissal of plaintiff

Globi, LLC (“Globi’”) for lack of standing, and dismissal of plaintiffs’ c. 93A claim (Count III).

Introduction

This matter arises from a breach of contract dispute between Intrigue (“Intrigue”) and

Brightcove concerning a contract for Brightcove Beacon service signed by Intrigue and

Brightcove on July 7, 2021 (the “Agreement”). Plaintiff Intrigue claims that Brightcove failed to

properly provide its Beacon service giving rise to this action. Brightcove asserts not only that it

had properly provided its Beacon service, but that Intrigue breached the Agreement by failing to

pay fees due under the Agreement, so Brightcove had the right to suspend its service.

Although Intrigue was the only party to the Agreement with Brightcove, another

company — Globi — has brought contract and related claims against Brightcove. Globi, however,

was not a signatory to the Agreement, was not mentioned anywhere in the Agreement, and did

not enter into any other contract with Brightcove. It is unclear what — if any — legal relationship

there is between Intrigue and Globi. This is not enough to give rise to standing to bring this

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action. To address this self-evident failing in its contractual and 93A claims, Globi asserts that it

was a third-party beneficiary of the Agreement. Globi, however, presents no facts to support that

argument and the law makes it plain that Globi has no basis to assert that it is a third-party

beneficiary of the Agreement. Absent any contractual or direct business relationship, Globi lacks

standing to bring any claims against Brightcove.

With respect to the plaintiffs’ c.93A claim, an ordinary contractual business dispute is not

a c.93A violation. Globi’s c.93A claims fail as a matter of law because they are breach of

contract claims repackaged and embellished as c.93A claims. The Court should clear the

bramble from this case to promote judicial efficiency and focus the parties’ attention upon the

core issue of their dueling breach of contract claims.

BACKGROUND FACTS

Brightcove is a business that provides video streaming technology services to its clients.

Its “Brightcove Beacon” service serves as a platform for clients to create and configure a single

media streaming service that is then used across multiple platforms and devices. It includes

advertising-based video on demand support, video cloud services, and server-side advertisement

insertion services. [Complaint at §§| 9, 13.] On or about July 7, 2021, Intrigue signed the Order

with Brightcove for the provision of “Brightcove Beacon” services. [Order, Complaint, Exhibit

2.] The Order incorporated by reference the terms of Brightcove’s Master Services Agreement

(“MSA”). [MSA, Complaint, Exhibits 1 and 2.] The Order and MSA are referred to collectively

in this Memorandum as the “Agreement.”

Globi is not a signatory to the Agreement nor was it mentioned anywhere in the

Agreement. [Order attached to Complaint as Exhibit 2.] Moreover, the Complaint asserts that

Globi and Intrigue are “closely related,” but does not explain further the nature of their

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relationship nor whether one company is liable for the debts and obligations of the other.

[Complaint at | 11.] Indeed, the Complaint describes Intrigue as a California corporation with a

principal place of business at 8425 W. 3" Street, #306, Los Angeles County, California, while

Globi, LLC is a California limited liability company with a separate business location of 658

Santa Clara Ave., Venice, Los Angeles County, California. [Complaint at 41, 2.] Legally, they

are separate corporate entities that do not even share the same corporate form.

In 2021, pursuant to the Agreement, Brightcove began its work to provide its Beacon

Service to Intrigue. The application was intended to be a vehicle to provide video streaming

services on demand to customers, with monetization through third-party advertisements. The

application was launched in mid-December 2021. [Complaint at { 24.] The parties dispute who

was at fault for the late launch.

The Order required an initial payment of $73,730, followed by a mandatory renewal

amount of $62,230.00. Plaintiffs paid the fee due for the Initial Term under the Order but

refused, despite continuing to actively use the Beacon service, to pay the fee for the Renewal

Term in 2022, arguing that Brightcove had to fix issues with the application first. [Complaint at

{| 18, 31; Order.] Because Intrigue stopped making payments, Brightcove stopped providing its

Beacon service as it is entitled to do under Section 3(b) of the MSA. [Complaint at 4 30-31 and

Exhibit 1, MSA, Section 3(b).] Intrigue and Globi then filed suit under the Agreement, asserting

a contract claim (Count I), a breach of the implied covenant of good faith and fair dealing claim

(Count II), and a c.93A claim based on the contract dispute (Count III).

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ARGUMENT

I GLOBI -— A NON-PARTY TO THE ORDER — LACKS STANDING TO BRING ANY CLAIM
AGAINST BRIGHTCOVE.

Globi, as a non-party to the Agreement, lacks standing to bring any claims against

Brightcove in this breach of contract action. All three of the claims have the Agreement at the

heart of the dispute. “To prevail on a claim for breach of contract, a plaintiff must demonstrate

that there was an agreement between the parties; the agreement was supported by consideration;

the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant

committed a breach of the contract; and the plaintiff suffered harm as a result.” Sgromo vy.

Polygroup Ltd et al., No. 2184CV0913, 2021 WL 6297938, at *2 (Mass. Superior Ct. Nov. 22,

2021), quoting Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016).

A recent case in the Superior Court dealt with the issue of a non-party to a contract

attempting to bring breach of contract claims. Sgromo v. Polygroup Ltd et al., arose from an

alleged breach of a nondisclosure agreement. The Court allowed defendants’ motion to dismiss

because plaintiff was not a party to the agreement and therefore did “not have standing to bring

an action in his own name for breach...” Jd. The Court reasoned that the plaintiff had filed “the

Complaint in his own name, but the claims he alleges belong to Eureka Inventions.” Sgromo,

2021 WL 6297938, at *2. Similarly, the claims in this case belong to Intrigue as signatory to the

Order, not Globi.

Though the plaintiffs have presented no factual basis to establish that Globi is a

subsidiary of Intrigue, Courts have also dismissed lawsuits brought by companies on behalf of a

subsidiary or a related corporation. “A corporation does not have standing to assert claims

belonging to a related corporation, simply because their business is intertwined.” i

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In re Neurontin Mktg. & Sales Pracs. Litig., 810 F. Supp. 2d 366, 370 (D. Mass. 2011),

quoting Diesel Sys., Ltd. v. Yip Shing Diesel Eng’g Co., 861 F. Supp. 179, 181 (E.D.N.Y. 1994);

see also Kilgallon v. Clear Channel Comm., 23 Mass. L. Rptr. 75 (Mass. Super. Ct. 2007)

(granting two defendants’ motions for summary judgment because “these defendants do not

belong in this lawsuit simply because they are the parent corporations of [another defendant].”)

Here, paragraph 2 of the Complaint asserts that Globi is a subsidiary of Intrigue'. The Supreme

Judicial Court has expressly held,

“The mere fact that one corporation owns all of the capital stock of a subsidiary
corporation, standing alone, is not enough to warrant the disregard of their
separate legal entities or sufficient to establish the subsidiary as the agent of the
parent corporation.”

Com. v. Benefit Fin. Co., 360 Mass. 188, 291 (1971). Accordingly, Globi does not have

standing to pursue this action.

IL. GLOBI WAS NOT A THIRD-PARTY BENEFICIARY WHERE IT WAS NOT MENTIONED IN
THE AGREEMENT.

To the extent Plaintiffs allege that Globi was a third-party beneficiary of the Agreement,

the argument fails as a matter of law because the Agreement makes no mention of Globi at all,

let alone as a third-party beneficiary. To recover as a third-party beneficiary, a plaintiff must

establish that they were intended beneficiaries of a contract. The Courts look at the “language

and circumstances of the contract” to determine whether the parties to the contract “clear[ly] and

definite[ly]” intended a third party to benefit from the promised performance. Doherty v.

Admiral's Flagship Condo. Tr., 80 Mass. App. Ct. 104, 111 (2011), quoting Cumis Ins. Soc., Inc.

v. BJ's Wholesale Club, Inc., 455 Mass. 458, 466 (2009).

Tt does not appear that their respective corporate filings reflect any relationship between the two entities.
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In this case, there is no mention of Globi in the Agreement nor is there any provision of

the contract stating that it is for (or could be for) the benefit of any other party, let alone

specifically Globi. [See Order and MSA, Exhibits 1 and 2 to the Complaint]. The Appeals

Court’s decision in Try Switch, Ltd. v. Endurance Int. Group, 83 Mass. App. Ct. 1131 (2016)

(Rule 1:28 Decision)? is particularly instructive, where the Appeals Court reversed the Superior

Court’s determination that there was a third-party beneficiary to the contract at issue. The

Appeals Court focused on the time that the contract was executed and reasoned that there was

nothing in the contract or elsewhere in the record to indicate that the parties to the contract had

the defendant in mind in any way. The Court wrote, “[flor example, the defendant is not named

in the contract, and there is no provision in the contract stating that it, or any provision contained

in it, is ‘for the benefit’ of the defendant.” Id.; See Kang v. Energy, No. 2079-CV-00412, 2021

WL 8014640, at *1° (Mass. Super. May 26, 2021) (“to make a claim under the contract, it must

be clear on the face of the contract that the contract was made for plaintiff's benefit.”) The same

reasoning applies here. Absent any mention of Globi in the Agreement, or even the possibility

that the contract may be intended to benefit a third party, Globi cannot be a third-party

beneficiary.

Moreover, mere conclusory assertions cannot establish the status of being a third-party

beneficiary. The Supreme Judicial Court (“SJC”) in Cumis Ins. Soc., Inc. v. BJ's Wholesale

Club, Inc. affirmed the dismissal of a third-party beneficiary claim where plaintiffs, “assert[ed]

merely the conclusion that they were third-party beneficiaries to the defendants' agreements

without setting forth any factual allegations concerning the defendants' intentions...” /d., quoting

Cumis, 455 Mass. at 467. Similarly, in Doherty v. Admiral’s Flagship Condo. Tr., 80 Mass.

2 A copy of the Try Switch, Ltd. v. Endurance Int. Group case (Rule 1:28 Decision) is attached as Exhibit A.
3 A courtesy copy of the Kang v. Energy case is attached as Exhibit B.
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App. Ct. at 111, the Appeals Court held that the plaintiffs “bare allegations” that she was “an

intended beneficiary of said contract” absent additional facts was sufficient basis to dismiss her

claim as a third-party beneficiary to a contract. Id.

In the Complaint, Plaintiffs claim that Intrigue is “closely related to Globi” [Complaint at

4 11] and “{t]hough Intrigue executed the MSA, at all times relevant to this action, the parties

agreed and understood that the work contemplated under the MSA, and the work the [sic.]

Brightcove did perform, was on behalf of Globi.” [/d. at § 19]. Plaintiffs simply boot-strap the

requirement that Globi was a third-party beneficiary of the Agreement by asserting that Globi

was an intended third-party beneficiary, without alleging supporting facts. This is not enough.

See Kang, 2021 WL 8014640 at *2 (Court held that the plaintiffs “bare allegation as to each

count that she “was an intended beneficiary of said contract,” with no additional facts regarding

the defendants’ intent, fails to state a claim for relief as an intended third-party beneficiary to a

contract.”)

Ill. PLAINTIFFS’ C.93A CLAIM FAILS BECAUSE THE ALLEGATIONS AMOUNT TO NO MORE
THAN A BREACH OF CONTRACT CLAIM.

As a matter of black letter law, an ordinary contractual business dispute is not a c.93A.

violation. Globi’s 93A claims fail because they are breach of contract claims repackaged as

c.93A claims. “A breach of contract, standing alone, is not an unfair trade practice; instead, to

rise to the level of an unfair trade practice, a breach of contract must be both knowing and

intended to secure unbargained-for benefits.” Zabin v. Picciotto, 73 Mass. App. Ct. 141, 169

(2008). For a breach of contract to amount to an unfair trade practice, “[t]he breaching party’s

conduct must exceed the level of mere self-interest...rising instead to the level of commercial

extortion or a similar degree of culpable conduct.” Id. (internal quotation marks omitted)

(internal citations omitted).

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Here, plaintiffs’ allegations amount to no more than an ordinary breach of contract for an

alleged failure to deliver a fully operational application. Plaintiffs allege that Brightcove worked

on developing an application with a launch date of October 2021, but that Brightcove “failed to

provide Globi an operational platform until mid-December 2021, over two months after the

publicized launch date.” [Complaint at { 24.] In this allegation, plaintiffs concede that

Brightcove did indeed provide an “operational platform,” just two months late. Globi further

alleges that Brightcove failed to provide, “advertisement streams that functioned properly, or at

all, within the Globi application,” as well as other issues with Brightcove’s services.’ Again,

plaintiffs concede that Brightcove was doing work under the Agreement, but only claim that the

work was faulty, and do not suggest that any alleged shortcomings were intentional or willful.

Plaintiffs unilaterally decided to stop paying the amounts billed by Brightcove under the

Agreement. [Complaint at ¥ 30.] This led to Brightcove’s termination of Globi’s access to

Brightcove’s services. [Complaint at § 31.] Globi argues that Brightcove should have continued

to provide its services until the issues were fixed. [/d.] This is a contractual dispute and nothing

more.

Plaintiffs’ allegations describe difficulties with implementation, which is insufficient to

sustain a c.93A claim. In the context of software products, courts have recognized that

implementation can be difficult, and therefore implementation issues without more do not

constitute c.93A violations. Courts have rejected c. 93A claims for a contracting party’s alleged

failure to provide functional deliverables per the contract. See Novacore Techs., Inc. v. GST

Commce’ns Corp., 20 F. Supp. 2d 169, 187 (D. Mass. 1998), aff’d, 229 F.3d 1133 (1 Cir. 1999)

* Brightcove notes that the Order provides that Intrigue ~ not Brightcove — is responsible for monetization. The
Order provides that, “[Intrigue] is solely responsible for any integrations or requirements necessary for [Intrigue] to
use any of the monetization options included within its Brightcove Beacon package including, without limitation,
payment systems, subscriber databases, advertising exchanges, and App Store product catalogs. [Order.]

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(ruling that software designer did not violate c. 93A even though certain applications of custom

software system were not fully developed or adequately tested before being installed at

company’s site); see also Socket Mobile, Inc. v. Cognex Corp., No. CV 17-156-VAC-MPT, 2017

WL 3575582, at *7 (D. Del. Aug. 18, 2017) (dismissing c. 93A counterclaim where allegations

that a contracting party misstated its ability to perform amounted to nothing more than a

repetition of plaintiff's breach of contract claim)°. Brightcove and Globi’s contractual disputes

do not arise to the level of ‘rascality’ and egregious behavior that would amount to a c. 93A

violation.

Plaintiffs further allege that Brightcove attempted to coerce undeserved concessions by

(1) demanding that plaintiffs pay what they owed under the Agreement; and then (2) terminating

services under the Agreement when plaintiffs failed to pay. This course of conduct, however,

was authorized under the parties’ Agreement and was not the kind of extra-contractual behavior

that has justified c.93A claims in other cases. There is no allegation that Brightcove sought any

payments from plaintiffs that deviated from the Agreement with respect to the amounts invoiced

and timing. [See Complaint at J§{ 30-31, Order.| The Order required an initial payment of

$73,730, followed by a mandatory renewal amount of $62,230.00. It is the latter — mandatory

renewal amount — that Intrigue refused to pay, not any extra-contractual fee. [See Order at 1-2.]

Plaintiffs’ argument is just that Brightcove should have waived or stayed its billing because of

the issues with the application. [Complaint at § 32.]

Similarly, the suspension of services was expressly authorized under the MSA, not an

extra-contractual action by Brightcove to force concessions. [See Complaint at Exhibit 1, §

3(b).] The MSA provided that if Intrigue “fails to pay applicable fees when payment is due, then

5 Courtesy copies of Novacore Techs., Inc. v. GST Comme ‘ns Corp. and Socket Mobile, Inc. v. Cognex Corp. are
attached as Exhibits C and D.

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in addition to any other rights Brightcove may have, Brightcove shall have the right to suspend

delivery of all or a portion of the Brightcove Service to Company . . .” [/d.] The facts — even as

alleged by plaintiffs - speak for themselves, and no amount of spin, characterization, or

embellishment by counsel can change the undisputed fact that Brightcove followed the

Agreement to the letter in terminating its services for non-payment. The parties can disagree on

whether Brightcove performed its services to satisfaction, but the real dispute is whether

Brightcove’s actions complied with the Agreement. Indeed, there is no construction of the

Agreement nor any jurisprudence that would require Brightcove to continue providing services

to a party that does not pay. Plaintiffs fail to allege how Brightcove’s actions, as alleged in the

Complaint, amount to extortion or such other culpable conduct to invoke a c. 93A claim.

Accordingly, Plaintiffs’ c. 93A claim, which is simply another disguised breach of contract

claim, should be dismissed.

CONCLUSION

The Court should dismiss Globi as a party to this breach of contract action because it was

never a party to any contract with Brightcove nor was it mentioned in the Order or the MSA as a

third-party beneficiary. Further, the Court should dismiss the Chapter 93A claim because such a

claim is nothing more than an embellished breach of contract claim.

Respectfully submitted,

BRIGHTCOVE INC.,
By its attorneys,
/s/ Edward S. Cheng
Edward S. Cheng (BBO# 634063)
Mariem Marquetti (BBO# 709438)
Sherin and Lodgen LLP
101 Federal Street
Boston, MA 02110
scheng@sherin.com
mmarquetti@sherin.com

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Dated: November 9, 2023 (617) 646-2000
CERTIFICATE OF SERVICE

I, Mariem Marquetti, hereby certify that on November 9, 2023 a true copy of the above
document was served by email upon:
Ryan A. Rucki, Esq.
Pamela S. O’Connor, Esq.
TORRES, SCAMMON, HINCKS & DAY, LLP
119 High Street
Boston, MA 02110
rucki@tshdlegal.com
poconnor@tshdiegal.com
Attorneys for Globi, LLC and Intrigue

/s/ Mariem Marquetti
Mariem Marquetti

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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2384-CV-02251

GLOBI, LLC and INTRIGUE,
Plaintiffs,
Vv.

BRIGHTCOVE INC.
Defendant.

INDEX OF EXHIBITS

Pursuant to Massachusetts Superior Court Rule 9A(b)(2)(iv), Defendant Brightcove Inc.

hereby provides the following index of exhibits:

Exhibit A Rule 1:28 Decision: Try Switch, Ltd. v. Endurance Int'l Grp., 83
Mass. App. Ct. 1131 (2013)

Exhibit B Kang v. Energy, No. 2079-CV-00412, 2021 WL 8014640
(Mass.Super. May 26, 2021)

Exhibit C Novacore Techs., Inc. v. GST Comme'ns Corp., 20 F. Supp. 2d 169
(D. Mass. 1998), aff'd, 229 F.3d 1133 (Ist Cir. 1999)
Exhibit D Socket Mobile, Inc. v. Cognex Corp., No. CV 17-156-VAC-MPT,
2017 WL 3575582 (D. Del. Aug. 18, 2017)

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EXHIBIT A
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Docket Number @PBWAYOR? Eta. Endurance intern. Group, 83 Mass ‘App.Ct. 4131 (2013)
9 19

fees, because the defendant “prevailed” when its motion
83 Mass.App.Ct. 1131 to dismiss was allowed. Our review is de novo. Curtis ¥.
Unpublished Disposition Herb Chambers I-95, In 58 Mass. 674, 676 (2011). We
NOTE: THIS OPINION WILL NOT APPEAR have found no Massachusetts case permitting a nonparty
IN A PRINTED VOLUME. THE DISPOSITION to a contract to enforce a forum selection clause against a
WILL APPEAR IN A REPORTER TABLE. party to the contract. However, even were we to assume that

NOTICE: Decisions issued by the Appeals Court a nonparty may, in certain circumstances, enforce a forum
pursuant to its rule 1:28 are primarily addressed to selection clause against a party, there is no reason to think that
the parties and, therefore, may not fully address the our law would recognize a right broader than that recognized

facts of the case or the panel's decisional rationale. in other jurisdictions. More specifically, although courts in
Moreover, rule 1:28 decisions are not circulated to the other jurisdictions have generally accepted that nonsignatory
entire court and, therefore, represent only the views of third parties can enforce a forum selection clause against a

the panel that decided the case. A summary decision signatory, they have done so where the nonparty is a third-
pursuant to rule 1:28, issued after February 25, 2008, party beneficiary of the contract. See, e.g., BNY AIS Nominees
may be cited for its persuasive value but, because of Lid. v, Quan, 609 F.Supp.2d 269. 275 (D.Conn.2009) (“One
the limitations noted above, not as binding precedent. situation where a non-party may invoke a contractual forum
Appeals Court of Massachusetts. selection clause, or it can be invoked against the non-party,
is where the non-party is a third-party beneficiary of the
ontract”).
TRY SWITCH, LTD.!
v “Under Massachusetts law,’ a contract does not confer
ENDURANCE INTERNATIONAL GROUP.” third-party beneficiary status unless the ‘language and
circumstances of the contract’ show that the parties to the

No, 12-P-1535. contract ‘clearly and definitely’ intended the beneficiary
| to benefit from the promised performance.” Doherty v.
May 16, 2013. Admiral's Flagship Condominium Trust, 80 Mass.App.Ct.
104, 111 (2011), quoting from Curis fns. Soc., Ine. v. BY's
Wholesale Club, Inc., 455 Mass. 458, 466 (2009). In order
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, to be deemed a third-party beneficiary, the defendant was
JJ). required to show that the contracting parties “intended to give
[it] the benefit of the promised performance.” Anderson v.
Fox Hill Village Homeowners Corp., 424 Mass. 365, 366
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 (1997). “We look at the language and circumstances of the
contract for indicia of intention.” /bid. There is nothing in
*1 These cross appeals arise out of a Superior Court judge's the contract, or elsewhere in the record, to indicate that the
interpretation and application of the following provision in parties to the contract had the defendant in mind in any
a contract between the plaintiff and ValueClick International way at the time the contract was drafted or entered into. For
Limited, an entity that is not a party to this suit: example, the defendant is not named in the contract, and
there is no provision in the contract stating that it, or any
“The exclusive forum for any actions related to this
provision contained in it, is “for the benefit” of the defendant.
[a]lgreement shall be in the [clourts in Dublin, Ireland.
Compare Rae v. Air—Speed, Inc., 386 Mass, 187, 195 (1982).
You consent to such venue and jurisdiction. A party
See also Constantino v. Frechette, 73 Mass.App.Ct. 352.
that primarily prevails in an action brought under this
356 (2008). At best, the defendant is one of a group of
[a]greement is entitled to recover from the other party its
potential future customers generically called “advertisers”
reasonable attorneys [sic | fees and costs.”
the contract. No member of this group is identified by name,
The plaintiff contends that the judge erred in dismissing
and there is no sign that either party to the contract knew or
the complaint, because the defendant is not a third-party
expected at the time the contract was entered into that the
beneficiary of the contract and, therefore, is not entitled to
defendant might eventually fall within that generic group.
enforce the forum selection clause. The defendant argues
On this record, therefore, the defendant did not establish
that the judge erred when he declined to award attorneys’

airy
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Docket Number Q38ARVOR2S td. v. Endurance Intern, Group, 83 Mass.App.Ct. 4131 (2013)
987 NI 619
the defendant predicated on the notion that it had prevailed in
that it was an intended third-party beneficiary entitled to
enforce the forum selection clause. We note as well that it the action on the basis of the forum selection clause.
would be difficult to conclude (both for reasons of logic
and fairness) that the defendant, a Massachusetts company,
So ordered.
was the intended beneficiary of a forum selection clause
requiring suit be brought in Ireland. We accordingly reverse All Citations
the judgment dismissing the complaint.
83 Mass.App.Ct. 1131, 987 N.E.2d 619 (Table), 2013 WL
*2 It clearly follows that we must affirm the judge's denial 2096605
of the defendant's request for attorneys' fees and costs, which

Footnotes
1 Doing business as UGetRewards.com.

2 Doing business as FatCow Webhosting and iPage.com.

3 Although the contract specifies Irish law, neither party has argued either to us or to the motion judge that Irish law is
to be applied.

—
End of Document © 2023 Thomson Reuters. No claim to original US.
Government Works.
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EXHIBIT B
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Dodket NumbeRaaig ORR 2021 WL 8014640 (2021) os ss

2021 WL 8014640 (Mass.Super.) (Trial Order)
Superior Court of Massachusetts,
Hampden County

Kye KANG, Plaintiff,
v

Eversource ENERGY, et al, Defendants

No. 2079-CV-00412.
May 26, 2021.

Memorandum and Order on Defendant's Motion to Dismiss Count XT

Edward J. Mcdonough, Jr., Judge.

*1 Plaintiff alleges damages to her property at 78 Glenwood St., Ludlow, Massachusetts, caused by the defendants’
performance of a construction project on abutting property.

More specifically, she alleges that the construction work caused loud sounds and earth ground vibrations that shook and cracked
her house foundation. She further alleges that the cracks in the foundation of the home allowed, and still allows water to enter
the finished basement in her home.

Plaintiff's complaint asserts eleven counts against the defendant, all sounding in tort and G.L.c. 93A, except count XI, alleging
that plaintiff is a third-party beneficiary of the contract between codefendants Eversource Energy and BluRoc, LLC. Defendant
BluRoc brings this motion to dismiss Count XI, under which plaintiff seeks recovery as a third-party beneficiary of that contract.
Defendant argues that a third party beneficiary contract is one in which the language and circumstances of the contract show
that the parties to the contract clearly and definitely intended a non-signatory third party to benefit from one party's promise
to perform. Thus, plaintiff qualifies as an intended beneficiary only if the language and circumstances of the contract show
that the parties clearly and definitely intended the beneficiary to benefit from the promised performance. Defendant submits
there is nothing in the contract or in the contractual clause cited by plaintiff, which demonstrates the contractual language in the
contract between Eversource Energy and BluRoc clearly and definitely intended plaintiff to benefit from promised performance
under the contract. Thus, to make a claim under the contract, it must be clear on the face of the contract that the contract was
made for plaintiff's benefit.

In passing on a defendant's motion to dismiss, I “accept as true the allegations in the complaint and draw every reasonable
inference in favor of the plaintiff.” Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011). In order to withstand a
motion to dismiss, the complaint must contain enough factual allegations “to raise a right to relief above the speculative level ...
[based] on the assumption that all the allegations in the complaint are true .... Janmacchino v. Ford Motor Co., 451 Mass. 623,
636, (2008), quoting from Bel! Atl. Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). Where the factual allegations do not
plausibly suggest an entitlement to relief, the complaint must be dismissed. [bid.

“Under Massachusetts law, a contract does not confer third-party beneficiary status unless the ‘language and circumstances
of the contract’ show that the parties to the contract ‘clear[ly] and definite[ly]’ intended the beneficiary to benefit from the
promised performance.” Cumis Ins. So » Ine. BJ's Wholesale Club, Inc., 455 Mass. 458, 466 (2009), quoting from Anderson
\. Fox Hill Village Homeowners Corp. 24 Mass. 365, 361 367 (1997). In Cumis, the Supreme Judicial Court affirmed the
dismissal of a third-party beneficiary claim where the plaintiffs’ complaint “assert[ed] merely the conclusion that they were
Date Filed 1/4/2024 1:56 PM
Superior Court - Suffolk
Docket Numbex aA COMER by, 2021 WL 8014640 (2021
oe

third-party beneficiaries to the defendants' agreements without setting forth any factual allegations concerning the defendants!
intentions ....” Jd. at 467,

*2 Likewise here, “the plaintiffs bare allegation as to each count that she “was an intended beneficiary of said contract,” with
no additional facts regarding the defendants' intent, fails to state a claim for relief as an intended third-party beneficiary to a
contract.” Doherty v. Admiral's Flagship Condo. Tr, 88 Mass. App. Ct. 104, 111 (2011)

Following the hearing on the motion, I discovered that the contract provisions at issue are attached to neither the complaint, nor
the motion or opposition. I cannot decide the issue without the contractual provisions at issue.

ORDER

I shall DENY, the motion to dismiss without prejudice. Within 21 days, the parties shall jointly submit their understanding of
the written contract, each directing my attention to the pertinent contract clauses, at which point I shall re-address the motion.

Because a motion to dismiss targets only the sufficiency of the allegations of the complaint, 1 DECLINE to provide plaintiff
five months of discovery. At this point, I will require only a copy of the subject contractual or the pertinent provisions.

Edward I. McDonough Jr.

Justice of the Superior Court

Dated 3/24/21

airy
Date Filed 1/4/2024 1:56 PM
Superior Court - Suffolk
Docket Number 2384CV02251

EXHIBIT C
Date Filed 1/4/2024 1:56 PM
Superior Court - Suffolk
Docket Numbay
288A Q¥82?6th nologies , inc. v. GST Coi munications Corp 20FS 2d 169 (1998)
er

reasonable leeway to the rightfully rejecting or
20 F.Supp.2d 169 revoking buyer. M.G.L.A. ¢. 166, §§ 2-602(1),

United States District Court, D. Massachusetts.

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