Preview
Date Filed 1/22/2024 9:10 AM
Superior Court - Essex
Docket Number 2377CV01088
12.2
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT DEPARTMENT
of the TRIAL COURT
CIVIL ACTION No. 2377CV01088
WELLSCO REAL ESTATE PARTNERS, LLC,
Plaintiff,
Vv.
PHILIP SCHWARTZ and
TAMARA SCHWARTZ,
Defendants.
PLAINTIFF’S REPLY MEMORANDUM
TO DEFENDANTS’ OPPOSITION TO MOTION TO AMEND COMPLAINT
NOW COMES Wellsco Real Estate Partners, LLC (“Wellsco”), Plaintiff, and replies to
Philip Schwartz and Tamara Schwartz’ (“Defendants”) opposition to the Plaintiff's motion to
amend the complaint.
Wellsco may amend its complaint as a matter of right. Under Massachusetts law, “A
party may amend his pleading once as a matter of course at any time before a responsive
pleading is served and prior to entry of an order of dismissal.” Mass. R. Civ. P_15 (a); See
Wrightson v. Spaulding, 20 Mass. App. Ct. 70, 72 (1985). Additionally, “leave should be granted
unless there are good reasons for denying the motion.” Mathis v. Massachusetts Elec. Co., 409
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Date Filed 1/22/2024 9:10 AM
Superior Court - Essex
Docket Number 2377CV01088
Mass. 256, 264 (1991). As the Defendants have yet to submit a responsive pleading, and have
produced no argument or evidence that would disqualify Wellsco’s right to amend its complaint,
Wellsco may amend it as a matter of right.
The Defendants argue that the amendment is futile because the underlying complaint
does not state a cause of action and the disputed contract was not signed by a licensed real estate
broker. Both arguments are unavailing.
Wellsco’s amended complaint is hardly futile. “An amended complaint is futile if the
amended claims would not survive a motion to dismiss for failure to state a claim.” Chang v.
Winklevoss, 95 Mass. App. Ct. 202, 212 (2019). To survive a motion to dismiss for failure to
state a claim, a plaintiff's complaint must have sufficient facts that, when taken as true, to “raise
a right to relief above the speculative level.” Jannacchino v. Ford Motor Co., 451 Mass. 623,
636 (2008) quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). “What is
required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent
with)’ an entitlement to relief.” Jannacchino_at 636. quoting Bell Atl. Corp. at 1966.
Wellsco’s amended complaint factually demonstrates there was a binding contract
between the parties, the Defendants’ wrongfully interfered with Wellsco’s ability to perform the
contract, and the Defendants’ attempted to unilaterally terminate the contract. The Defendants’
argument that Wellsco did not present a ready, willing and able buyer — and is therefore not
entitled to a commission -- is disingenuous, because it was the Defendants’ themselves who
impeded Wellsco’s performance.
The Defendants rely on ristam’s Landing, Inc. v. Wait, 367 Mass. 622 (1975),
acknowledging that a broker must be paid if the seller engaged in wrongful acts or interfered
with the seller’s ability to perform. The broker does not have to prove bad faith, though that issue
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Date Filed 1/22/2024 9:10 AM
Superior Court - Essex
Docket Number 2377CV01088
will be explored in discovery. He only has to show that the seller violated an existing legal duty
or obligation without justification. Boucher vy. C & L, LLC, 95 Mass. App. Ct. 1101 (2019). Here,
the seller had a legal duty to cooperate with the broker, per the contract.
The fact that the Plaintiff signed the contract as a dba is a nonmaterial technicality.
Executing a contract as a dba does not create a separate legal entity when both the dba
(“Wellsco”) and the licensed broker (“Wellsco LLC”) are engaged in the same business.
Masonic Temple Association of Quincy, Inc. v. Patel, 489 Mass. 549, 554-555 (2022). Notably,
the Defendants’ behavior showed they believed they had a binding contract, one that they
wrongfully attempted to terminate.
Respectfully submitted by
THE PLAINTIFF
WELLSCO REAL ESTATE PARTNERS, LLC
By its Attorneys,
/s/ Meredith A. Fine
Meredith A. Fine, Esq.
BBO No. 669248
108 East Main Street, Suite 4
Gloucester, MA 01930
978-515-7224
Meredith@attorneymeredithfine.com
Dated: December 20, 2023
Page 3 of 3
Preview
Date Filed 1/22/2024 9:10 AM Superior Court - Essex Docket Number 2377CV01088 12.2 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS SUPERIOR COURT DEPARTMENT of the TRIAL COURT CIVIL ACTION No. 2377CV01088 WELLSCO REAL ESTATE PARTNERS, LLC, Plaintiff, Vv. PHILIP SCHWARTZ and TAMARA SCHWARTZ, Defendants. PLAINTIFF’S REPLY MEMORANDUM TO DEFENDANTS’ OPPOSITION TO MOTION TO AMEND COMPLAINT NOW COMES Wellsco Real Estate Partners, LLC (“Wellsco”), Plaintiff, and replies to Philip Schwartz and Tamara Schwartz’ (“Defendants”) opposition to the Plaintiff's motion to amend the complaint. Wellsco may amend its complaint as a matter of right. Under Massachusetts law, “A party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal.” Mass. R. Civ. P_15 (a); See Wrightson v. Spaulding, 20 Mass. App. Ct. 70, 72 (1985). Additionally, “leave should be granted unless there are good reasons for denying the motion.” Mathis v. Massachusetts Elec. Co., 409 Page 1 of 3 Date Filed 1/22/2024 9:10 AM Superior Court - Essex Docket Number 2377CV01088 Mass. 256, 264 (1991). As the Defendants have yet to submit a responsive pleading, and have produced no argument or evidence that would disqualify Wellsco’s right to amend its complaint, Wellsco may amend it as a matter of right. The Defendants argue that the amendment is futile because the underlying complaint does not state a cause of action and the disputed contract was not signed by a licensed real estate broker. Both arguments are unavailing. Wellsco’s amended complaint is hardly futile. “An amended complaint is futile if the amended claims would not survive a motion to dismiss for failure to state a claim.” Chang v. Winklevoss, 95 Mass. App. Ct. 202, 212 (2019). To survive a motion to dismiss for failure to state a claim, a plaintiff's complaint must have sufficient facts that, when taken as true, to “raise a right to relief above the speculative level.” Jannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). “What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” Jannacchino_at 636. quoting Bell Atl. Corp. at 1966. Wellsco’s amended complaint factually demonstrates there was a binding contract between the parties, the Defendants’ wrongfully interfered with Wellsco’s ability to perform the contract, and the Defendants’ attempted to unilaterally terminate the contract. The Defendants’ argument that Wellsco did not present a ready, willing and able buyer — and is therefore not entitled to a commission -- is disingenuous, because it was the Defendants’ themselves who impeded Wellsco’s performance. The Defendants rely on ristam’s Landing, Inc. v. Wait, 367 Mass. 622 (1975), acknowledging that a broker must be paid if the seller engaged in wrongful acts or interfered with the seller’s ability to perform. The broker does not have to prove bad faith, though that issue Page 2 of 3 Date Filed 1/22/2024 9:10 AM Superior Court - Essex Docket Number 2377CV01088 will be explored in discovery. He only has to show that the seller violated an existing legal duty or obligation without justification. Boucher vy. C & L, LLC, 95 Mass. App. Ct. 1101 (2019). Here, the seller had a legal duty to cooperate with the broker, per the contract. The fact that the Plaintiff signed the contract as a dba is a nonmaterial technicality. Executing a contract as a dba does not create a separate legal entity when both the dba (“Wellsco”) and the licensed broker (“Wellsco LLC”) are engaged in the same business. Masonic Temple Association of Quincy, Inc. v. Patel, 489 Mass. 549, 554-555 (2022). Notably, the Defendants’ behavior showed they believed they had a binding contract, one that they wrongfully attempted to terminate. Respectfully submitted by THE PLAINTIFF WELLSCO REAL ESTATE PARTNERS, LLC By its Attorneys, /s/ Meredith A. Fine Meredith A. Fine, Esq. BBO No. 669248 108 East Main Street, Suite 4 Gloucester, MA 01930 978-515-7224 Meredith@attorneymeredithfine.com Dated: December 20, 2023 Page 3 of 3