FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge
B. D'Amico and Howard B. D'Amico, P.C. on brief for
Nicholas D. Stellakis, Timothy J. Fazio, Shauna R. Twohig,
and Manion Gaynor & Manning LLP on brief for appellee.
Torruella, Thompson, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
proposed deal concerning the purchase of eighty-eight rail
freight cars arguably came to naught, APB Realty, Inc. sued
Georgia-Pacific LLC for breach of contract. Georgia-Pacific
successfully moved to dismiss the complaint for failure to
state a claim upon which relief could be granted, and APB
promptly appealed. Because we find that APB's complaint
adequately pleads a claim for breach of contract by
Georgia-Pacific, we vacate the judgment and remand for
reviewing a dismissal for failure to state a claim, we draw
the facts from the complaint, and we consider as well any
writings that are "fairly incorporated" in the
complaint. Barchock v. CVS Health Corp., 886 F.3d
43, 48 (1st Cir. 2018) (quoting Schatz v. Republican
State Leadership Comm., 669 F.3d 50, 55 (1st Cir.
facts alleged by APB read like a tricky example from a
first-year course in contracts. In April 2015,
Georgia-Pacific let APB know that Georgia-Pacific had
eighty-eight rail cars to sell "where is, as is."
APB was interested, and extended an offer to
Georgia-Pacific's broker as follows:
Total for all 88 x Log Stake Railcars $1, 636, 000 (Including
16% Buyer's Premium).
spoke further with Georgia-Pacific's broker, apparently
to obtain schematics on the cars. On July 23,
Georgia-Pacific's broker sent another email, stating as
Per our discussion yesterday, here are the schematics for the
cars, that include the manufacturer information. Our team has
presented your offer to [Georgia-Pacific] for final approval,
and should have an answer by close of business tomorrow.
I'll let you know when the approval comes, and please
don't hesitate to call if you should have any additional
questions. One of [our] team members along with
[Georgia-Pacific] will coordinate transfers of all of the
cars upon completion of the sale.
next day, Georgia-Pacific's broker emailed APB once more,
Here are the two options that [Georgia-Pacific] has brought
back for us to ...