APB Realty, Inc. v. Georgia-Pacific LLC, 948 F.3d 37

APB, a broker, offered to buy 88 Georgia–Pacific railcars for $1,636,000 (including buyer's premium) after Georgia–Pacific advertised them “as is, where is.”
Georgia–Pacific sent schematics and, on July 24, proposed two options: (1) $1,697,000 with Georgia–Pacific assuming replacement risk for certain "Southern Wheels" (effectively a $61,000 premium); or (2) $1,636,000 with APB assuming that risk.
APB indicated it was "leaning towards option 1" but had not confirmed selection when Georgia–Pacific informed APB it had accepted a substantially higher offer and expected to close with another buyer (who turned out to be a party APB had been brokering to).
APB sued for breach of contract; on a motion to dismiss the First Circuit held the complaint plausibly alleged contract formation and remanded to allow discovery and further proceedings.
On remand the parties agreed to the same written facts and submitted the case to a bench trial on the paper record; the district court found no contract because Georgia–Pacific’s July 24 email manifested that responsibility for Southern Wheels was a material, express term that APB had not accepted.
The First Circuit reviewed the bench-trial factual finding for clear error and affirmed the district court’s judgment for Georgia–Pacific.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a binding contract was formed by July 24	APB: the communications could be read as acceptance of an "as is" offer and thus formed a contract	Ga.–Pac.: July 24 email made responsibility for Southern Wheels an express, material term not yet agreed to	No contract: court found mutual assent lacking because APB did not timely accept the material Southern Wheels term
Proper allocation of burden after appellate remand	APB: prior ruling shifted burden to Ga.–Pac. to prove no contract	Ga.–Pac.: plaintiff still bears burden to prove contract at trial	Held plaintiff retained burden of proving contract and breach; remand did not relieve that burden
Standard of review for existence of contract after bench trial	APB: (implicit) trial ruling should be reversed	Ga.–Pac.: factual finding should stand	Court applied clear-error review and found no clear error in district court’s factual construction
Role of pleadings-stage plausibility vs. proof at trial	APB: plausibility ruling foreclosed contrary finding without new evidence	Ga.–Pac.: plausibility is not proof; absence of new evidence weakens plaintiff’s position	Court: pleading plausibility is a low threshold; failure to produce evidence post-remand does not entitle plaintiff to prevail at trial

APB Realty, Inc. v. Ga.–Pac. LLC, 889 F.3d 26 (1st Cir. 2018) (earlier appeal held complaint plausibly alleged formation of a contract and remanded dismissal)
Situation Mgmt. Sys., Inc. v. Malouf, Inc., 724 N.E.2d 699 (Mass. 2000) (agreement must cover material terms to create an enforceable contract)
McGurn v. Bell Microprods., Inc., 284 F.3d 86 (1st Cir. 2002) (existence of a contract is ordinarily a question of fact)
Sawyer Bros., Inc. v. Island Transporter, LLC, 887 F.3d 23 (1st Cir. 2018) (bench-trial factual findings reviewed for clear error)
Bell Atl. Corp. v. Twombly, 550 F.3d 544 (U.S. 2007) (pleading must state a plausible claim to survive dismissal)
Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading-standards clarifying Twombly)
Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82 (1st Cir. 2015) (plausible complaint only raises reasonable expectation discovery will produce supporting evidence)
Martin v. Vector Co., 498 F.2d 16 (1st Cir. 1974) (plaintiff bears burden of proving contract and breach)
United States v. Vigneau, 337 F.3d 62 (1st Cir. 2003) (discussing law-of-the-case doctrine)
Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002) (law-of-the-case principles explained)