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Gowen v. Benchmark Senior Living LLC (Lawyers Weekly No. 12-057-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03972-BLS2 ____________________ ADRIENNE GOWEN, through her legal guardian Scott Gowen and on behalf of herself and all others similarly situated v. BENCHMARK SENIOR LIVING LLC ____________________ MEMORANDUM AND ORDER DENYING CROSS-MOTIONS TO DISMISS Adrienne Gowen lives in an assisted living facility that is now managed by Benchmark Senior Living LLC. Gowen claims that Benchmark’s predecessor assessed and collected some unlawful charges when Gowen first moved in. Benchmark, in turn, claims that Gowen has failed to pay what she owes for living in the Benchmark facility and receiving assisted-living services from Benchmark. Gowen alleges that Benchmark’s predecessor violated Massachusetts residential landlord/tenant law in two ways: by charging her a $ 2500 “community fee” at the inception of her lease even though such a fee is not authorized by G.L. c. 186, § 15B(1)(b); and by charging $ 5500 for last month’s rent that in realty was a security deposit, and not complying with the legal requirements for assessing a security deposit (such as holding it in a separate interest-bearing account and paying Gowen interest on her deposit each year). Gowen alleges that Benchmark is liable for prior and ongoing misconduct with respect to each of these two charges. She asserts claims for violations of G.L. c. 186, § 15B, and G.L. c. 93A and for negligent misrepresentation, intentional fraud, and unjust enrichment. Benchmark alleges that Gowen and her guardian have failed to pay what they owe for Gowen’s residency and the services she has been receiving at the facility. Benchmark asserts counterclaims for breach of contract and unjust enrichment. Both sides have moved to dismiss all claims and counterclaims against them under Mass. R. Civ. P. 12(b)(6). The Court will allow Benchmark’s motion in part with respect to Gowen’s claim under G.L. c. 93A concerning the “community fee” and with respect to all of her claims for negligent misrepresentation and intentional fraud. It will deny the rest of Benchmark’s motion. It will also deny Gowen’s motion to dismiss the counterclaims against her. – 2 – 1. Legal Standards. To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts that, if true, would “plausibly suggest[] … an entitlement to relief.” Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). For the purpose of deciding the pending motions to dismiss, the Court must assume that the factual allegations in the complaint and any reasonable inferences that may be drawn in Plaintiffs’ favor from the facts alleged are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). In […]

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Posted by Massachusetts Legal Resources - June 1, 2017 at 1:44 pm

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