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16-P-942                                              Appeals Court

    RAQUEL RODRIGUEZ1     vs.    MASSACHUSETTS BAY TRANSPORTATION
                                AUTHORITY.


                             No. 16-P-942.

            Suffolk.      April 7, 2017. - July 31, 2017.

             Present:   Grainger, Sullivan, & Kinder, JJ.2


Massachusetts Bay Transportation Authority, Contract. Railroad.
     Contract, What constitutes, Offer and acceptance.
     Practice, Civil, Motion to dismiss.



     Civil action commenced in the Superior Court Department on
November 10, 2015.

     A motion to dismiss was heard by Mitchell H. Kaplan, J.


     Thomas G. Shapiro (Robert Richardson & Edward C. Cumbo also
present) for the plaintiff.
     David S. Mackey (Christina S. Marshall also present) for
the defendant.




     1
         On behalf of herself and all others similarly situated.
     2
       Justice Grainger participated in the deliberation on this
case prior to his retirement.
                                                                       2


    KINDER, J.      In this case we address whether a public

transportation authority breaches a contract with its commuter

rail customers when extraordinary winter storms interrupt the

service schedule.     For the reasons that follow, we conclude that

in the circumstances presented here, it does not.     Accordingly

we affirm the judgment of dismissal pursuant to Mass.R.Civ.P.

12(b)(6), 365 Mass. 754 (1974), for failure to state a breach of

contract claim.

    On April 22, 2015, the plaintiff, Raquel Rodriguez, brought

this action against the Massachusetts Bay Transportation

Authority (MBTA) and its commuter rail operator, Keolis Commuter

Services, LLC (Keolis), on behalf of a putative class of

purchasers of monthly rail passes in January, February, and

March, 2015.   The complaint alleged that the MBTA commuter rail

service suffered severe delays and cancellations during the

record-setting snowstorms of 2015.     Rodriguez claimed that these

service disruptions were in breach of the MBTA's implied

contract "to provide timely, reliable commuter rail service

. . . for January, February and March of 2015."    In a

comprehensive written decision, a Superior Court judge allowed

the MBTA's motion to dismiss.     Among other things, the judge

concluded that even if the MBTA had some form of contractual

obligation to its monthly pass holders, "the complaint fails to

allege an essential element of a breach of contract claim:        an
                                                                   3


agreement between the parties on a material term of the contract

at issue."   This appeal followed.3

    Background.    We summarize the allegations in the operative

complaint and the items appearing in the record of the case.

See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).    The

MBTA is charged by statute with providing commuter rail and

subway service in eastern Massachusetts.   G. L. c. 161A, §§ 1

and 2.   The MBTA provides service from 138 commuter rail

stations situated along fourteen routes.   On an average weekday,

the MBTA serves 131,161 passengers on the commuter rail, and

monthly passes range from seventy-five dollars to $362.

    Rodriguez and thousands of other commuters purchased

monthly passes in January, February, and March of 2015.

Rodriguez paid $182 for her so-called "Zone 1" monthly pass,

which entitled her to unlimited travel within that zone.    The

pass did not contain information regarding schedules and fares,

but directed passengers to the MBTA's telephone number and Web

site for that information.




    3
       Rodriguez does not appeal the judgment of dismissal as to
Keolis. And as to her unjust enrichment claim against the MBTA,
it is referenced in her notice of appeal, but she presents no
related argument in her brief. Accordingly, we do not address
the claims related to Keolis or the claim that the MBTA was
unjustly enriched. See Mass.R.A.P. 16(a)(4), as amended, 367
Mass. 921 (1975).
                                                                        4


    In the winter of 2015, the Boston area was beset by severe

snowstorms.   Four separate winter storms, occurring on January

27, February 2, February 7, and February 14, each registered

snow accumulation of ten or more inches.     It snowed an

additional seven inches between February 15 and 28, and six

inches in March.     The complaint alleges that the intervals

between storms left "more than enough time to clear the snow and

return to a full commuter rail schedule."

    Due to the snowstorms, the MBTA canceled all commuter rail,

subway, and most bus service from 7:00 P.M. on Monday, February

9, through the end of the day on Tuesday, February 10.        At some

point in February, the MBTA announced a "winter recovery

schedule," which provided "less than full commuter rail and

[subway] service."     Throughout March, the MBTA ran one or two

morning weekday trains per line, and a total of only four to

five trains per day.     According to the complaint, commuters were

"largely unable to use their monthly commuter rail passes for

the second half of February and most of March [of] 2015, or if

used at all with substantial uncertainty and delay."        Rodriguez

claims that the service fell "well short of what [she] and

[other] purchasers of monthly commuter rail passes paid for."

    When the MBTA announced the cancellation of service for

February 9 and 10, Governor Charles D. Baker, Jr., expressed

frustration and disappointment with the decision.    Shortly
                                                                     5


thereafter, the MBTA's chief executive officer and general

manager, Beverly A. Scott, resigned.    At the Governor's request,

the MBTA board of directors also resigned.    On March 11, 2015,

the MBTA admitted that it had failed its customers and offered

customers a fifteen percent discount on their monthly passes for

May.

       According to the complaint, the real reason for the MBTA's

substandard service was not the weather, but "[y]ears of MBTA

mismanagement and a culture of indifference."4    Rodriguez claimed

that the MBTA lacked the proper equipment to deal with winter

storms, in part because in the previous five years, it had spent

only $2.3 billion of the $4.5 billion it had planned to spend on

capital construction.    The complaint further alleged that the

MBTA "knowingly" diverted funds intended for capital

expenditures to pay inflated employee salaries.

       Discussion.   We review the allowance of a motion to dismiss

de novo, accepting the allegations in the complaint as true and

drawing all reasonable inferences in Rodriguez's favor.     Curtis

v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).    To

withstand a motion to dismiss, the "[f]actual allegations must


       4
       In its April 8, 2015, report, a special panel convened by
the Governor to review the MBTA found that "[t]he catastrophic
winter breakdowns were symptomatic of structural problems that
require fundamental change in virtually all aspects of the
MBTA."
                                                                     6


be enough to raise a right to relief above the speculative

level."   Iannacchino v. Ford Motor Co., 451 Mass. 623, 636

(2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007).   While detailed allegations are not required,

sufficient facts must be pleaded to plausibly suggest an

entitlement to relief.   See ibid.

    In relevant part, the complaint alleged that "[i]n exchange

for monies paid, the MBTA contracted to provide timely, reliable

commuter rail service to [Rodriguez] and the Class."     According

to Rodriguez, the MBTA breached this contractual obligation in

three ways:   (1) by failing to provide timely and reliable rail

service; (2) by failing to provide reliable schedule updates,

"rendering what limited service [the MBTA] did provide

unusable"; and (3) by adopting the winter recovery schedule,

which was so sparse that it extended the unreliable and untimely

service through March of 2015.   In dismissing the contract

claim, the judge concluded that "the MBTA had no express

contractual obligation to provide 'normal' or 'regular' commuter

rail service during and after the record-breaking snow storms in

2015, even though the plaintiff may have expected such rail

service."

    "It is axiomatic that to create an enforceable contract,

there must be agreement between the parties on the material

terms of that contract, and the parties must have a present
                                                                      7


intention to be bound by that agreement."   Lambert v. Fleet

Natl. Bank, 449 Mass. 119, 123 (2007), quoting from Situation

Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000).

Put another way, "[a]n enforceable agreement requires (1) terms

sufficiently complete and definite, and (2) a present intent of

the parties at the time of formation to be bound by those

terms."   Targus Group Intl., Inc. v. Sherman, 76 Mass. App. Ct.

421, 428 (2010).   Whether contract terms are complete and

definite is a question of law.   See Duff v. McKay, 89 Mass. App.

Ct. 538, 544 (2016).

    We agree with the judge that the complaint does not set

forth the material terms of the claimed contract.   It is silent

regarding the source of the contractual obligation, the scope of

the MBTA's expected performance in these circumstances, and the

rights of its customers in the event of a breach.   Moreover, the

obligation to provide "timely and reliable service" is too

indefinite to create an enforceable contract.   See Epstein v.

Zwetchkenbaum, 356 Mass. 22, 24 (1969) (contract terms must be

set forth with "certainty and precision"); Lambert, supra at 125

(vagueness of agreement indicated no intent to be bound).      Even

if, as Rodriguez claims in her brief, the terms of the contract

are the "normal" or "regular" MBTA published schedules, the

complaint does not allege that the MBTA intended or agreed to be

bound by the regular schedule, see McCarthy v. Tobin, 429 Mass.
                                                                   8


84, 87 (1999), and we conclude it is not reasonable to draw that

inference.

     Rodriguez relies principally on Sears v. Eastern R.R. Co.,

14 Allen 433 (1867), to support her claim that she entered into

a contract with the MBTA when she purchased her monthly passes.

In Sears, the Supreme Judicial Court concluded that an

advertised train schedule constituted a general offer that

became binding when accepted by the passenger, and that the

implied terms of the contract included the published schedule.

Id. at 436-437.   The court held that the common carrier breached

the contract by changing the departure time of a particular

train without reasonable notice to the plaintiff.   Id. at 438.

     Even assuming that the principles of Sears still apply,5 the

case is distinguishable on its facts.   In Sears, the court

recognized that a railroad company has the right to make changes

to a published train schedule, so long as reasonable notice is

provided to ticket holders.   Id. at 437.   However, in Sears, the


     5
       Commentators have suggested that common carriers no longer
have contractual obligations to abide by their advertised
timetables. See 1 Lord, Williston on Contracts § 4:15 (4th ed.
2007). See also 14 Am. Jur. 2d Carriers § 791 (2009) ("The
publication of a timetable by a carrier does not amount to an
absolute and unconditional agreement that its conveyances will
arrive and depart at the precise moments indicated in the
table. . . . [A] common carrier is not a guarantor of its
schedules"); 13 C.J.S. Carriers § 503 (2005) (common carriers
neither guarantee their schedules nor act as insurers of times
at which passengers will reach their destinations).
                                                                     9


train was intentionally delayed one hour and forty-five minutes

to accommodate other passengers who wished to return to Boston

at a later time, and the plaintiff did not receive reasonable

notice of the change.   Ibid.   By contrast, here, the MBTA

changed the train schedule because of severe winter storms and

published a new schedule.   Significantly, the changes were not

made for the convenience of the MBTA or other passengers.

Rather, they were made as the MBTA attempted to manage a weather

emergency.   In these circumstances, we agree with the judge's

assessment that "Sears is sufficiently factually dissimilar to

the instant case that it provides no support for [Rodriguez's]

contention concerning the terms of the contract."6

     Conclusion.   The winter storms of 2015 wreaked havoc in and

around Boston.   To be sure, commuters were frustrated by the

MBTA's inability to transport them to work and back home.     Even

the MBTA acknowledged the inconvenience caused by its failure.

However, the purchase of a monthly pass on the MBTA is not a

guarantee of performance according to its published schedule in

these extraordinary circumstances.   Because the complaint does

not set forth the material terms of the claimed contract with


     6
       Because we conclude that Rodriguez has not sufficiently
pleaded an agreement between the parties on the material terms
of the claimed contract, we need not reach the MBTA's other
arguments that the claim is also barred by the filed rate
doctrine, separation of powers principles, and principles of
tort law.
                                                                10


sufficient precision, we discern no error in the dismissal of

the breach of contract claim.

                                  Judgment affirmed.
