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\perior Gourt - Middiesex
5
icket Number 2381CV02716
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
DOCKET NO. 238CV02716
EASY WAY LANDSCAPING INC,
Plaintiff,
Defendant-in-counterclaim,
RECEIVED
Vv. 1/5/2024
CLEAR BUILDING SOLUTIONS LLC, )
Defendant, )
Plaintiff-in-Counterclaim )
EASY WAY’S MOTION TO DISMISS
COUNTERCLAIMS PURSUANT TO MASS. R. CIV. P. 12(b)(6) AND G.L. C. 231 § 6F
Plaintiff/Defendant In Counterclaim, Easy Way Landscaping Inc. (hereinafter "Plaintiff"
or “Easy Way”), pursuant to Rule 12(b)(6) of Massachusetts Rules of Civil Procedure, moves
this Honorable Court to dismiss Defendant/Plaintiff In Counterclaim’s, Clear Building Solutions
LLC’s, (hereinafter, “Defendant” or “Clear”) Counterclaims. In support thereof, Plaintiff states
that the claims asserted by Clear in said pleading are insufficient to set forth a cause of action
and are not being advanced in good faith.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed this Complaint on September 26, 2023 alleging Clear breached a contract
for services with them and owed $127,494.15. Plaintiff
is in the business of providing
landscaping services. For context, Clear contracts with contractors like the Plaintiff to provide
services for commercial property managers. Essentially, they provide a platform which acts as an
intermediary between the contractor and property manager for procurement and payment.
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On or around July 2022 or earlier, the Plaintiff began providing services for Clear and
sent invoices to them to be paid. Despite this, the Defendant rarely paid or would make partial
payments towards the invoices. From July 2022 through September 2023, the Defendant failed
to pay $127,494.15 worth of invoices. On October 10, 2023, the Defendant acknowledged
owing the Plaintiff $116,886.43 for the following invoices:
Invoice Month Balance
3351 Dec-22 $1,000.00
3351 Jan-23 $30,725.00
3452 Feb-23 $30,335.00
3606 Mar-23 $32,295.00
3512 May-23 $22,511.43
$116,866.43
See Pl. Ex. No. 1. On August 10, 2023, Clear acknowledged owing Easy Way $121,908.43. Id.
The Plaintiff's complaint identified the following invoices as being sent to the Defendant and
received by them:
2/1/2023 1264 $30,725.00
3/1/2023 1272 $30,335.00
4/1/2023 1294 $32,295.00
6 /2023 1332 $22,511.43
See 4 8 of Pl. Compl. In response to this, the Defendant “denie[d] the allegations” of that
paragraph. See { 8 of Def. Ans.
Prior to Easy Way providing services that benefited the Defendant, there was an
agreement between the parties. This “Vendor Agreement” was signed by all parties on October
20, 2021. See Pl. Ex. 2. Pursuant to Paragraph 3 of the Vendor Agreement,
Vendor will be required to submit an invoice to Client for any completed Services by the
third (3rd) day of the subsequent month to which Services were completed. Client will
pay Vendor on the fifteenth (15th) day of each month, unless the fifteenth (15th) day
occurs on a non-business day in which payment will be released on the subsequent
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business day following the 15th. Client reserves the right, to withhold any Service
payment due to a failure to perform Service or failure to perform Service satisfactorily.
See q 3, Pl. Ex. 2.
Despite this acknowledgement by Clear that it owed Easy Way money for services
rendered all the way back to February 2023, Clear filed an answer on November 16, 2023 that
included two counterclaims: (1) breach of contract by Easy Way, and (2) unfair and deceptive
practices by Easy Way under G.L. c. 93A. These claims surround a supposed violation of the
“non-solicitation” clause identified in paragraph 7 of the Vendor Agreement. See 7, Pl. Ex. 2.
According to Clear, on or about October 9, 2023, the Plaintiff solicited some of Clear’s
“customers” and violated the agreement, despite Easy Way not being paid over $120,000 for
services rendered over eight months.
LEGAL STANDARD
A complaint may be dismissed, pursuant to Mass.R.Civ.P. 12(b)(6) for failure to state a
claim upon which relief may be granted. The courts have imposed upon a Plaintiff a requirement
to plead sufficient facts to warrant a finding of a valid cause of action. ‘“*Factual allegations
must be enough to raise a right to relief above the speculative level ... [based] on the assumption
that all the allegations in the complaint are true (even if doubtful in fact) ..... What is required at
the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an
entitlement to relief”. Jannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell
Atlantic Corp. v. Twombly, 127 8. Ct. 1955, 1964-1965 (2007) (edits in original). The courts
further stated that they “do not accept legal conclusions cast in the form of factual allegations.”
Schaer v. Brandeis University, 432 Mass. 474, 477, 735 N.E.2d 373 (2000).
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“To prevail on a claim for breach of contract, a plaintiff must demonstrate that there was
[(1)] an agreement between the parties: [(2)] the agreement was supported by consideration; [(3)]
the plaintiff was ready, willing, and able to perform his or her part of the contract; [(4)] the
defendant committed a breach of the contract; and the plaintiff suffered harm as a result.” Bulwer
v. Mount Auburn Hosp., 473 Mass. 672, 690, 46 N.E.3d 24 (2016). See Singarella v. Boston, 342
Mass. 385, 387, 173 N.E.2d 290 (1961).
Under G.L. c. 231 § 6F, a claim may be dismissed if it is found to be frivolous in nature.
“A claim is frivolous if there is an “absence of legal or factual basis for the claim,” Demoulas
Super Mkts., Inc. v. Ryan, 70 Mass.App.Ct. 259, 267, 873 N.E.2d 1168 (2007), and if it is
“without even a colorable basis in law.” Lewis v. Emerson, 391 Mass. 517, 526, 462 N.E.2d 295
(1984).
ARGUM
Clear’s Counterclaims must be dismissed because the pleadings failed to establish they
did not materially violate the contract in February 2023. Clear’s breach excused Easy Way’s
obligation to abide by the non-solicitation clause. Further, given that Clear’s own pleading fails
to admit to owing certain debt shows their answer and counterclaim were not advanced in good
faith and dismissal is appropriate. The issues of whether the Defendant has established a prima
facie case for breach of contract and whether their answer was filed in good faith are addressed
in turn.
I Clear Has Failed to Plead That They Did Not Materially Breach
The Contract Prior To Easy Way’s Alleged Breach in October 2023.
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The Defendant has failed to plead sufficient facts to support a prima facie case for Easy
Way breaching the contract. Basic contract law tells us that Clear had to plead sufficient facts to
show there was “[(1)] an agreement between the parties; [(2)] the agreement was supported by
consideration; [(3)] the plaintiff was ready, willing, and able to perform his or her part of the
contract; [(4)] the defendant committed a breach of the contract; and the plaintiff suffered harm
as aresult.” Singarella v. Boston, 342 Mass. 385, 387, 173 N.E.2d 290 (1961). The Defendant
has failed to show element three and four.
Clear has failed to show that its failure to pay Easy Way for services performed from
February 2023 through June 2023 are not a material breach of the Vendor Agreement. “It is well
established that a material breach by one party excuses the other party from further performance
under the contract.” Ward v. Am. Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100-01, 443 N.E.2d
1342, 1343 (1983); citing Quintin Vespa Co. v. Construction Serv. Co., 343 Mass. 547, 554, 179
N.E.2d 895 (1962); Petrangelo v. Pollard, 356 Mass. 696, 701-702, 255 N.E.2d 342 (1970).
In our case, we know there was a material breach because the Vendor Agreement
specifically states when payment by Clear is to be made. It states that “[Easy Way] will be
required to submit an invoice to [Clear] for any completed Services by the third (3rd) day of the
subsequent month to which Services were completed.” On receipt, “[Clear] will pay [Easy Way]
on the fifteenth (15th) day of each month, unless the fifteenth (15th) day occurs on a non-
business day in which payment will be released on the subsequent business day following the
15th.” See 4] 3, Pl. Ex. 2. Meaning, so long as the invoice was received by the third day of the
month, Clear had to issue payment by the fifteenth day of the same month.
Easy way submitted the following invoices to Clear:
2/1/2023 1264 $30,725.00
3/1/2023 1272 $30,335.00
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4/1/2023 1294 $32,295.00
6/1/2023 1332 $22,511.43
See Aff. of Marcio Marinello and PI. Ex. No. 3. Those were submitted to Clear on the day that
the invoice states. Meaning for those invoices, Clear had until February 15, March 15, April 15,
and June 15, to pay Easy Way. They failed to do so by their own admission on October 2, 2023.
See Pl. Ex. No. 1.
Admittedly, the Vendor Agreement states that “[Clear] reserves the right, to withhold any
Service payment due to a failure to perform Service or failure to perform Service satisfactorily.”
43, Pl. Ex. 2. However, nowhere in their counterclaim do they claim the work done by Easy
Way was unsatisfactory, so this is irrelevant
The pleadings show that Clear was required to perform on February 15, March 15, April
15, and June 15, which they failed to do. Payment of the invoices is clearly a material term in
the agreement. The whole basis of the Plaintiff and Defendant’s relationship was services in
exchange for money. Clear’s failure to pay on February 15 and thereafter excused Easy Way
from further performance under the contract. See Ward v. Am. Mut. Liab. Ins. Co., 15 Mass.
App. Ct. 98, 100-01, 443 N.E.2d 1342, 1343 (1983). More specifically, it excused them from
being bound by the non-solicitation clause in Paragraph 7. See § 7, Pl. Ex. 2.
It is important to note that the Defendant’s counterclaim is fatally flawed in that it fails to
plead that Clear lived up to their end of the bargain and did not violate the Vendor Agreement.
This, coupled with Clear’s own documents indicating they failed to make timely payment,
conclusively establish they violated they agreement months before any alleged breach could have
occurred by Easy Way.
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Lastly, regarding the G.L. c. 93A claim, a basic assumption to this is that Easy Way
knowingly and intentionally acted contrary to the Vendor Agreement that contained a non-
solicitation clause. For the reasons outlined above, Easy Way was no longer bound to the
Vendor Agreement after Clear’s failure to timely pay. As such, as a matter of law, it cannot be
said that they acted unfairly and deceptively in soliciting bids from Clear’s “customers”
October 2023, some eight months after not being paid by Clear.
IL. Clear’s Answer And Counterclaims Were Not Filed In
Good Faith And Dismissal Is Appropriate Under G.L. c. 231 § 6F.
Clear’s Answer when read along with its own correspondence to Easy Way suggest they
were not filed in good faith and hence, dismissal of their counterclaims is appropriate under c.
231 § 6F. Under Rule 11(a), “The signature of any attorney to a pleading constitutes a certificate
that the attorney has read the pleading; that to the best of the attorney’s knowledge, information,
and belief there is a good ground to support it; and that it is not interposed for delay.”
(emphasis added) Mass. R. Civ. P. 11(a). Paragraph 8 of the Plaintiff's Complaint stated,
[t]he following invoices were sent to Clear regarding services rendered for Clear’s
customers:
Date Invoice No. Amount
2/1/2023 1264 $30,725.00
3/1/2023 1272 $30,335.00
4/1/2023 1294 $32,295.00
6/1/2023 1332. $22,511.43
See Pl. Compl. §8. Further, Paragraph 11 stated, “To date, Clear has made multiple payments
towards the monies owed to Plaintiff and Easy Way has since made demand for payment of the
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|
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outstanding balance to Defendant.” See Pl. Compl. §8. In response to these allegations, the
Defendant denied both paragraphs outright. See Def. Ans. 498, 11.
Despite these assertions to the Court, Clear has on at least two separate occasions
acknowledged not paying Easy Way for those particular services they deny receiving. See Pl.
Ex. 1. They acknowledged owing on the invoices in writing on October 2, 2023 and August 8,
2023. Id. Now that litigation has been brought against Clear they have conveniently
misremembered receiving those bills from Easy Way and acknowledging they were unpaid some
eight months ago. The Plaintiff should not have to litigate against these claims when words of
Clear’s representative clearly disprove their own allegations in the answer and counterclaims.
Plaintiff's Counsel acknowledges that Defendant’s Counsel may not have know about the
documents in Exhibit | prior to this filing and is sympathetic to that should it be the case.
Nonetheless, the relief at this juncture is the same. The Defendant’s counterclaims should be
dismissed or the Defendant should be required to amend their answer to clarify the record.
CONCLUSION & REQUEST FOR RELIEF
Clear’s counterclaims should be dismissed under Rule 12(b)(6). First, on their face they
have failed to plead that Clear lived up to its contractual obligations a necessary element for a
breach of contract claim. Given that Clear breached the Vendor Agreement in February 2023,
the Plaintiff was excused from complying with the non-solicitation clause in October 2023,
which precludes the both the breach of contract claim and c. 93A claim. Lastly, the Defendant
has filed an answer that is in direct contradiction to its correspondences, which suggests
dismissal under c. 231 § 6F is appropriate.
WHEREFORE, your Plaintiff requests this Honorable Court to order as follows:
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Both of the Defendant’s Counterclaims be dismissed under Rule 12(b)(6) or c. 231 § 6F;
Or, hold a hearing on the matter;
Or in the alternative, require the Defendant to amend their Complaint to reflect the
statements made to the Plaintiff on October 2, 2023 and August 8, 2023; and
Anything else the Court deems right and just.
PLAINTIFF,
Easy Way,
By its Attorney,
Dated: 12/15/2023 /s/ Sean P. Kelly
Sean P. Kelly, Esq.
BBO # 689994
Marcotte Law Firm, LLC
10 George Street, Ste 210
Lowell, MA 01852
skelly@marcottelawfirm.com
CERTIFICATE OF SERVICE
I hereby certify that on a true copy of the above document was served by E-mail upon:
Travis C. Jackson, Esq., BBO #697091
Leslie A. Young, Esq., BBO #711763
Daigle Law Office
1550 Falmouth Road, Suite 10
Centerville, MA 02632
tjackson@daiglelawoffice.com
Iparrella@daiglelawoffice.com
/s/ Sean P. Kelly
Sean P. Kelly, Esq.
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\perior Gourt - Middiesex 5 icket Number 2381CV02716 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT DOCKET NO. 238CV02716 EASY WAY LANDSCAPING INC, Plaintiff, Defendant-in-counterclaim, RECEIVED Vv. 1/5/2024 CLEAR BUILDING SOLUTIONS LLC, ) Defendant, ) Plaintiff-in-Counterclaim ) EASY WAY’S MOTION TO DISMISS COUNTERCLAIMS PURSUANT TO MASS. R. CIV. P. 12(b)(6) AND G.L. C. 231 § 6F Plaintiff/Defendant In Counterclaim, Easy Way Landscaping Inc. (hereinafter "Plaintiff" or “Easy Way”), pursuant to Rule 12(b)(6) of Massachusetts Rules of Civil Procedure, moves this Honorable Court to dismiss Defendant/Plaintiff In Counterclaim’s, Clear Building Solutions LLC’s, (hereinafter, “Defendant” or “Clear”) Counterclaims. In support thereof, Plaintiff states that the claims asserted by Clear in said pleading are insufficient to set forth a cause of action and are not being advanced in good faith. FACTUAL AND PROCEDURAL HISTORY Plaintiff filed this Complaint on September 26, 2023 alleging Clear breached a contract for services with them and owed $127,494.15. Plaintiff is in the business of providing landscaping services. For context, Clear contracts with contractors like the Plaintiff to provide services for commercial property managers. Essentially, they provide a platform which acts as an intermediary between the contractor and property manager for procurement and payment. Page 1 of 9 ae — perior Court - Middlesex wket Number 2381CV02716 On or around July 2022 or earlier, the Plaintiff began providing services for Clear and sent invoices to them to be paid. Despite this, the Defendant rarely paid or would make partial payments towards the invoices. From July 2022 through September 2023, the Defendant failed to pay $127,494.15 worth of invoices. On October 10, 2023, the Defendant acknowledged owing the Plaintiff $116,886.43 for the following invoices: Invoice Month Balance 3351 Dec-22 $1,000.00 3351 Jan-23 $30,725.00 3452 Feb-23 $30,335.00 3606 Mar-23 $32,295.00 3512 May-23 $22,511.43 $116,866.43 See Pl. Ex. No. 1. On August 10, 2023, Clear acknowledged owing Easy Way $121,908.43. Id. The Plaintiff's complaint identified the following invoices as being sent to the Defendant and received by them: 2/1/2023 1264 $30,725.00 3/1/2023 1272 $30,335.00 4/1/2023 1294 $32,295.00 6 /2023 1332 $22,511.43 See 4 8 of Pl. Compl. In response to this, the Defendant “denie[d] the allegations” of that paragraph. See { 8 of Def. Ans. Prior to Easy Way providing services that benefited the Defendant, there was an agreement between the parties. This “Vendor Agreement” was signed by all parties on October 20, 2021. See Pl. Ex. 2. Pursuant to Paragraph 3 of the Vendor Agreement, Vendor will be required to submit an invoice to Client for any completed Services by the third (3rd) day of the subsequent month to which Services were completed. Client will pay Vendor on the fifteenth (15th) day of each month, unless the fifteenth (15th) day occurs on a non-business day in which payment will be released on the subsequent Page 2 of 9 ae — perior Court - Middlesex ycket Number 2381CV02716 business day following the 15th. Client reserves the right, to withhold any Service payment due to a failure to perform Service or failure to perform Service satisfactorily. See q 3, Pl. Ex. 2. Despite this acknowledgement by Clear that it owed Easy Way money for services rendered all the way back to February 2023, Clear filed an answer on November 16, 2023 that included two counterclaims: (1) breach of contract by Easy Way, and (2) unfair and deceptive practices by Easy Way under G.L. c. 93A. These claims surround a supposed violation of the “non-solicitation” clause identified in paragraph 7 of the Vendor Agreement. See 7, Pl. Ex. 2. According to Clear, on or about October 9, 2023, the Plaintiff solicited some of Clear’s “customers” and violated the agreement, despite Easy Way not being paid over $120,000 for services rendered over eight months. LEGAL STANDARD A complaint may be dismissed, pursuant to Mass.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. The courts have imposed upon a Plaintiff a requirement to plead sufficient facts to warrant a finding of a valid cause of action. ‘“*Factual allegations must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ..... What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief”. Jannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atlantic Corp. v. Twombly, 127 8. Ct. 1955, 1964-1965 (2007) (edits in original). The courts further stated that they “do not accept legal conclusions cast in the form of factual allegations.” Schaer v. Brandeis University, 432 Mass. 474, 477, 735 N.E.2d 373 (2000). Page 3 of 9 ——— =ene perior Court - Middlesex icket Number 2381CV02716 “To prevail on a claim for breach of contract, a plaintiff must demonstrate that there was [(1)] an agreement between the parties: [(2)] the agreement was supported by consideration; [(3)] the plaintiff was ready, willing, and able to perform his or her part of the contract; [(4)] the defendant committed a breach of the contract; and the plaintiff suffered harm as a result.” Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690, 46 N.E.3d 24 (2016). See Singarella v. Boston, 342 Mass. 385, 387, 173 N.E.2d 290 (1961). Under G.L. c. 231 § 6F, a claim may be dismissed if it is found to be frivolous in nature. “A claim is frivolous if there is an “absence of legal or factual basis for the claim,” Demoulas Super Mkts., Inc. v. Ryan, 70 Mass.App.Ct. 259, 267, 873 N.E.2d 1168 (2007), and if it is “without even a colorable basis in law.” Lewis v. Emerson, 391 Mass. 517, 526, 462 N.E.2d 295 (1984). ARGUM Clear’s Counterclaims must be dismissed because the pleadings failed to establish they did not materially violate the contract in February 2023. Clear’s breach excused Easy Way’s obligation to abide by the non-solicitation clause. Further, given that Clear’s own pleading fails to admit to owing certain debt shows their answer and counterclaim were not advanced in good faith and dismissal is appropriate. The issues of whether the Defendant has established a prima facie case for breach of contract and whether their answer was filed in good faith are addressed in turn. I Clear Has Failed to Plead That They Did Not Materially Breach The Contract Prior To Easy Way’s Alleged Breach in October 2023. Page 4 of 9 eoSeer ees eens perior Gourt - Middlesex ycket Number 2381CV02716 The Defendant has failed to plead sufficient facts to support a prima facie case for Easy Way breaching the contract. Basic contract law tells us that Clear had to plead sufficient facts to show there was “[(1)] an agreement between the parties; [(2)] the agreement was supported by consideration; [(3)] the plaintiff was ready, willing, and able to perform his or her part of the contract; [(4)] the defendant committed a breach of the contract; and the plaintiff suffered harm as aresult.” Singarella v. Boston, 342 Mass. 385, 387, 173 N.E.2d 290 (1961). The Defendant has failed to show element three and four. Clear has failed to show that its failure to pay Easy Way for services performed from February 2023 through June 2023 are not a material breach of the Vendor Agreement. “It is well established that a material breach by one party excuses the other party from further performance under the contract.” Ward v. Am. Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100-01, 443 N.E.2d 1342, 1343 (1983); citing Quintin Vespa Co. v. Construction Serv. Co., 343 Mass. 547, 554, 179 N.E.2d 895 (1962); Petrangelo v. Pollard, 356 Mass. 696, 701-702, 255 N.E.2d 342 (1970). In our case, we know there was a material breach because the Vendor Agreement specifically states when payment by Clear is to be made. It states that “[Easy Way] will be required to submit an invoice to [Clear] for any completed Services by the third (3rd) day of the subsequent month to which Services were completed.” On receipt, “[Clear] will pay [Easy Way] on the fifteenth (15th) day of each month, unless the fifteenth (15th) day occurs on a non- business day in which payment will be released on the subsequent business day following the 15th.” See 4] 3, Pl. Ex. 2. Meaning, so long as the invoice was received by the third day of the month, Clear had to issue payment by the fifteenth day of the same month. Easy way submitted the following invoices to Clear: 2/1/2023 1264 $30,725.00 3/1/2023 1272 $30,335.00 Page 5 of 9 perior Court - Middlesex scket Number 2381CV02716 4/1/2023 1294 $32,295.00 6/1/2023 1332 $22,511.43 See Aff. of Marcio Marinello and PI. Ex. No. 3. Those were submitted to Clear on the day that the invoice states. Meaning for those invoices, Clear had until February 15, March 15, April 15, and June 15, to pay Easy Way. They failed to do so by their own admission on October 2, 2023. See Pl. Ex. No. 1. Admittedly, the Vendor Agreement states that “[Clear] reserves the right, to withhold any Service payment due to a failure to perform Service or failure to perform Service satisfactorily.” 43, Pl. Ex. 2. However, nowhere in their counterclaim do they claim the work done by Easy Way was unsatisfactory, so this is irrelevant The pleadings show that Clear was required to perform on February 15, March 15, April 15, and June 15, which they failed to do. Payment of the invoices is clearly a material term in the agreement. The whole basis of the Plaintiff and Defendant’s relationship was services in exchange for money. Clear’s failure to pay on February 15 and thereafter excused Easy Way from further performance under the contract. See Ward v. Am. Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100-01, 443 N.E.2d 1342, 1343 (1983). More specifically, it excused them from being bound by the non-solicitation clause in Paragraph 7. See § 7, Pl. Ex. 2. It is important to note that the Defendant’s counterclaim is fatally flawed in that it fails to plead that Clear lived up to their end of the bargain and did not violate the Vendor Agreement. This, coupled with Clear’s own documents indicating they failed to make timely payment, conclusively establish they violated they agreement months before any alleged breach could have occurred by Easy Way. Page 6 of 9 penor Court - Miagiesex ycket Number 2381CV02716 Lastly, regarding the G.L. c. 93A claim, a basic assumption to this is that Easy Way knowingly and intentionally acted contrary to the Vendor Agreement that contained a non- solicitation clause. For the reasons outlined above, Easy Way was no longer bound to the Vendor Agreement after Clear’s failure to timely pay. As such, as a matter of law, it cannot be said that they acted unfairly and deceptively in soliciting bids from Clear’s “customers” October 2023, some eight months after not being paid by Clear. IL. Clear’s Answer And Counterclaims Were Not Filed In Good Faith And Dismissal Is Appropriate Under G.L. c. 231 § 6F. Clear’s Answer when read along with its own correspondence to Easy Way suggest they were not filed in good faith and hence, dismissal of their counterclaims is appropriate under c. 231 § 6F. Under Rule 11(a), “The signature of any attorney to a pleading constitutes a certificate that the attorney has read the pleading; that to the best of the attorney’s knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay.” (emphasis added) Mass. R. Civ. P. 11(a). Paragraph 8 of the Plaintiff's Complaint stated, [t]he following invoices were sent to Clear regarding services rendered for Clear’s customers: Date Invoice No. Amount 2/1/2023 1264 $30,725.00 3/1/2023 1272 $30,335.00 4/1/2023 1294 $32,295.00 6/1/2023 1332. $22,511.43 See Pl. Compl. §8. Further, Paragraph 11 stated, “To date, Clear has made multiple payments towards the monies owed to Plaintiff and Easy Way has since made demand for payment of the Page 7 of 9 | perior Court - Middlesex »cket Number 2381CV02716 outstanding balance to Defendant.” See Pl. Compl. §8. In response to these allegations, the Defendant denied both paragraphs outright. See Def. Ans. 498, 11. Despite these assertions to the Court, Clear has on at least two separate occasions acknowledged not paying Easy Way for those particular services they deny receiving. See Pl. Ex. 1. They acknowledged owing on the invoices in writing on October 2, 2023 and August 8, 2023. Id. Now that litigation has been brought against Clear they have conveniently misremembered receiving those bills from Easy Way and acknowledging they were unpaid some eight months ago. The Plaintiff should not have to litigate against these claims when words of Clear’s representative clearly disprove their own allegations in the answer and counterclaims. Plaintiff's Counsel acknowledges that Defendant’s Counsel may not have know about the documents in Exhibit | prior to this filing and is sympathetic to that should it be the case. Nonetheless, the relief at this juncture is the same. The Defendant’s counterclaims should be dismissed or the Defendant should be required to amend their answer to clarify the record. CONCLUSION & REQUEST FOR RELIEF Clear’s counterclaims should be dismissed under Rule 12(b)(6). First, on their face they have failed to plead that Clear lived up to its contractual obligations a necessary element for a breach of contract claim. Given that Clear breached the Vendor Agreement in February 2023, the Plaintiff was excused from complying with the non-solicitation clause in October 2023, which precludes the both the breach of contract claim and c. 93A claim. Lastly, the Defendant has filed an answer that is in direct contradiction to its correspondences, which suggests dismissal under c. 231 § 6F is appropriate. WHEREFORE, your Plaintiff requests this Honorable Court to order as follows: Page 8 of 9 perior Court - Middiesex ycket Number 2381CV02716 Both of the Defendant’s Counterclaims be dismissed under Rule 12(b)(6) or c. 231 § 6F; Or, hold a hearing on the matter; Or in the alternative, require the Defendant to amend their Complaint to reflect the statements made to the Plaintiff on October 2, 2023 and August 8, 2023; and Anything else the Court deems right and just. PLAINTIFF, Easy Way, By its Attorney, Dated: 12/15/2023 /s/ Sean P. Kelly Sean P. Kelly, Esq. BBO # 689994 Marcotte Law Firm, LLC 10 George Street, Ste 210 Lowell, MA 01852 skelly@marcottelawfirm.com CERTIFICATE OF SERVICE I hereby certify that on a true copy of the above document was served by E-mail upon: Travis C. Jackson, Esq., BBO #697091 Leslie A. Young, Esq., BBO #711763 Daigle Law Office 1550 Falmouth Road, Suite 10 Centerville, MA 02632 tjackson@daiglelawoffice.com Iparrella@daiglelawoffice.com /s/ Sean P. Kelly Sean P. Kelly, Esq. Page 9 of 9