United States Court of Appeals 

For the First Circuit 

No. 17-1906 

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] 

Before 

Torruella, Thompson, and Kayatta, 

Circuit Judges. 

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. 

May 7, 2018 
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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). 
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APB spoke further with Georgia-Pacific's broker, 

apparently to obtain schematics on the cars. On July 23, GeorgiaPacific'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 [GeorgiaPacific] 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 [GeorgiaPacific] 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 [GeorgiaPacific] has brought back for us to close the 

deal on. 

Option 1, basically states that for $61K, you 

buy insurance that will replace as many 

Southern Wheels as needed to eliminate that 

problem. [Georgia-Pacific] will manage and 

take care of that issue. So after any real 

costs, you are paying a small percentage as 

insurance against the number being larger than 

51 wheel sets. 

Option 2 is the deal with you taking 

responsibility for any Southern Wheels. 

Let me know which deal is best for you, and 

I'll get this closed out as early as possible 

next week. 

The email then proceeded to summarize the options thusly: 

Option 1 . . . As is, where is. GeorgiaPacific assumes responsibility for the 

replacement of all southern wheels if found. 

Customer retains responsibility for 
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transportation to final destination. Proposed 

Offer: $1,697,000. . . . 

Option 2: . . . As is where is. Customer 

assumes responsibility for the replacement of 

all southern wheels if found. Customer 

retains responsibility for transportation to 

final destination. Proposed Offer: 

1,636,000. 

Oddly, the complaint does not tell us what "Southern 

Wheels" are. But the parties' communications as alleged do make 

clear that Georgia-Pacific regarded them as being a problem with 

some of the cars that would take on the order of $61,000 

($1,697,000 minus $1,636,000) to eliminate. 

Three days later, APB responded that it was "leaning 

towards option 1, should know this afternoon," and confirmed with 

Georgia-Pacific's broker one detail that apparently arose in 

conversation (45 cars would "come with the free move"). Before 

APB confirmed its selection, however, Georgia-Pacific's broker 

emailed once again, this time with the news that Georgia-Pacific 

"accepted an offer to sell all 88 railcars, which was substantially 

higher than yours. This offer has been processed, and we expect 

to close on it shortly. If this high offer does not close we will 

come back to you and see if you have a further offer for these 

cars." Adding insult to injury, APB shortly thereafter learned 

that the interloping purchaser was the same company with which 

APB, a broker, had been negotiating to resell the cars. In short, 

the seller and the ultimate buyer cut out APB, the middle person. 
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Irked by the course of events, APB sued all involved in 

Massachusetts state court, alleging that each had breached 

contractual promises to APB. Defendants removed the matter to the 

District of Massachusetts and moved to dismiss. All defendants 

other than Georgia-Pacific were dismissed from the case on the 

unopposed recommendation of a magistrate judge. APB appeals only 

from the subsequent decision of the district court dismissing the 

complaint against Georgia-Pacific under Federal Rule of Civil 

Procedure 12(b)(6) for failure to allege facts plausibly 

establishing the formation of a binding contract. APB Realty, 

Inc. v. Georgia-Pacific LLC, 272 F. Supp. 3d 277, 280 (D. Mass. 

2017). This appeal followed. 

II. 

We note at the outset that neither party argued to the 

district court or to this court on appeal that Massachusetts' 

version of the Uniform Commercial Code, rather than Massachusetts' 

common law of contracts, should apply to this dispute. Nor does 

either party suggest that Massachusetts law on the formation of 

commercial contracts differs in any material manner from the law 

of contracts as set forth in the American Law Institute's 

Restatement (Second) of Contracts. To the contrary, both parties 

cite cases decided under Massachusetts law that rely on the 

Restatement. See, e.g., McGurn v. Bell Microproducts, Inc., 284 

F.3d 86, 89 (1st Cir. 2002) (citing the Restatement (Second) of 
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Contracts to describe Massachusetts contract law relating to 

offers, counteroffers, and acceptance). 

The district court agreed with APB that option 2 in 

Georgia-Pacific's penultimate email was materially the same as 

APB's offer. See 272 F. Supp. 3d at 280 ("Liquidity responded on 

behalf [of] Georgia-Pacific, proposing two alternatives, the 

second of which corresponded to the offer proposed by APB.") 

(emphasis added). Georgia-Pacific challenges this conclusion only 

by arguing that when APB made its offer the condition of the cars 

was "unknown," while option 2 presented by Georgia-Pacific 

revealed that there was a problem for which APB would have to 

accept responsibility. But for purposes of a motion to dismiss it 

is certainly plausible that, either in relevant usage or in the 

context of the parties' dealing, an offer to buy used rail cars in 

unknown condition, in response to a proffer of the cars "as is," 

already presumed that APB would be stuck with any problem, 

including the Southern Wheels problem as confirmed by GeorgiaPacific in option 2. Imagine that a homeowner leaves a lawnmower 

on the curb, with a sign attached saying "For sale, as is, where 

is." If her neighbor then said "I'll give you $100 for that 

lawnmower," it would surely be reasonable to interpret this 

exchange as an offer to purchase the lawnmower "as is," despite 

the fact that the neighbor did not expressly include that language 

in her offer. In this entirely plausible view, option 2's 
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provision concerning responsibility for the Southern Wheels 

problem simply clarified rather than amended the terms of the offer 

being accepted. Williston describes just such a scenario: 

"Occasionally an offeree, out of ignorance or an abundance of 

caution, will insert a condition in an acceptance which merely 

expresses what would otherwise be implied in fact or in law from 

the offer. Because such a condition involves no qualification of 

the offeree's assent to the terms of the offer, it . . . does not 

preclude the formation of a contract." 2 Williston on Contracts 

§ 6:15 (4th ed.); see also, e.g., In re Lamarre, 34 B.R. 264, 265–

66 (Bankr. D. Me. 1983) (citing Williston). 

Although evidently agreeing with the foregoing, the 

district court nevertheless found no contract had been formed 

because the Georgia-Pacific email that confirmed a willingness to 

do as APB offered also tendered an alternative option (a higher 

price, but no Southern Wheel risk), and APB had not yet selected 

either option. But the fact that Georgia-Pacific confirmed its 

willingness to do what APB proposed while also offering an 

alternative option does not mean that a contract was not formed. 

If A offers to buy ten widgets from B for $20, and B replies that 

B will be glad to sell the ten widgets for $20, or throw in an 

extra ten for an extra $19 (thus selling a total of twenty widgets 

for $39), the law would generally view B's response as an 

acceptance of A's offer, plus an offer of a new, alternative deal 
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that A can -- but need not -- accept. See Williston § 6:16 

("Frequently an offeree, while making a positive acceptance of the 

offer, also makes a request or suggestion that some addition or 

modification be made. So long as it is clear that the offeree is 

positively and unequivocally accepting the offer, regardless of 

whether the request is granted or not, a contract is formed."); 

see also Targus Grp. Int'l, Inc. v. Sherman, 922 N.E.2d 841, 852 

(Mass. App. Ct. 2010) ("acceptance of specific terms followed by 

. . . request for addition or modification does not negate 

agreement . . . unless the party [offering the addition or 

modification] demands assent to its request.") (citing the 

Restatement and two contract law treatises). 

Moving from the hypothetical to the facts before us, one 

could reasonably interpret Georgia-Pacific's email as 

unequivocally saying, in essence: "We accept your offer to buy 

the cars, as is, at your offering price. At your election, we 

will also repair a Southern Wheel problem for an additional 

$61,000." Under such a reading, there would be a contract pursuant 

to the originally offered terms and an offer to modify the contract 

if APB so desired and agreed. 

Georgia-Pacific may well have arguments that the context 

surrounding the communications, evidence not yet before the court, 

or relevant convention and usage lead ultimately to a conclusion 

that no contract was formed here. It may be, for example, that 
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convention within the rail industry dictates that an offer to sell 

"as is" does not, in fact, encompass responsibility for something 

like replacement of Southern Wheels. Any such arguments, though, 

rely on factual determinations not properly before the court on a 

Rule 12(b)(6) motion to dismiss the complaint. 

III. 

Because the complaint alleges facts from which we can 

plausibly infer the making and breaking of a contract, we vacate 

the judgment of dismissal and remand for further proceedings. 

Costs are taxed in favor of appellant APB Realty, Inc.