          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
          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).




                                - 2 -
           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 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.        Georgia-
           Pacific   assumes    responsibility   for   the
           replacement of all southern wheels if found.
           Customer     retains     responsibility     for



                                   - 3 -
             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.



                                         - 4 -
           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


                                       - 5 -
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 Georgia-

Pacific 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


                                           - 6 -
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


                                        - 7 -
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


                                      - 8 -
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.




                              - 9 -
