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APB Realty, Inc. v. Georgia-Pacific LLC

United States Court of Appeals, First Circuit

May 7, 2018

APB REALTY, INC., Plaintiff, Appellant,
v.
GEORGIA-PACIFIC LLC, Defendant, Appellee, LIQUIDITY SERVICES, INC.; BEASLEY FOREST PRODUCTS, INC., Defendants.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge

          Howard B. D'Amico and Howard B. D'Amico, P.C. on brief for appellant.

          Nicholas D. Stellakis, Timothy J. Fazio, Shauna R. Twohig, and Manion Gaynor & Manning LLP on brief for appellee.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         After a 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 further proceedings.

         I.

         In 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. 2012)).

         The 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).

         APB 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 follows:

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.

         The next day, Georgia-Pacific's broker emailed APB once more, as follows:

Here are the two options that [Georgia-Pacific] has brought back for us to ...

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