Lotus Foods Boston LLC v. Go Fresh 365 Inc. Summary Judgment

Jump To

Top Caption Trial Court Document

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

April 1, 2026 Get Citation Alerts Download PDF Add Note

Lotus Foods Boston, LLC v. Go Fresh 365, Inc. and Long Deng

District Court, D. Massachusetts

• Citations: None known
• Docket Number: 1:24-cv-10407

• Precedential Status: Unknown Status

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

• Similar Cases (797)

• PDF

Trial Court Document

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

LOTUS FOODS BOSTON, LLC, *
*
Plaintiff, *
*
v. * Civil Action No. 1:24-cv-10407-IT
*
GO FRESH 365, INC. and LONG DENG, *
*
Defendants. *

MEMORANDUM & ORDER

April 1, 2026
TALWANI, D.J.
Pending before the court is Defendants Go Fresh 365, Inc. (“Go Fresh”) and Long Deng’s
Motion for Summary Judgment [Doc. No. 32]. Defendants contend that Plaintiff Lotus Foods
Boston, LLC (“Lotus”), is unable to prove that Defendants are liable on a promissory note
executed by non-party New Ming, Inc. (“New Ming”) as New Ming’s successors in interest, that
Defendants have been unjustly enriched, or that they engaged in a tortious conspiracy. Lotus
opposes the motion except as to the conspiracy claim, which Lotus has withdrawn.
For the reasons stated herein, Defendants’ Motion [Doc. No. 32] is GRANTED as to
Lotus’s breach of contract claim, GRANTED as to Lotus’s claims against Deng in his individual
capacity, and DENIED as to Lotus’s unjust enrichment claim.
I. Factual Record Viewed in the Light Most Favorable to Plaintiff
A. Defendant Long Deng and His Corporate Entities Prior to 2023
Prior to March 2023, Defendant Deng was the chief executive officer and a shareholder
of iFresh, Inc. (“iFresh”), a publicly traded company. iFresh owned 100% of the stock of NYM
Holdings, Inc. (“NYMH”), which, in turn, wholly owned Ming’s Supermarket Inc. (“Ming’s”).
Ming’s leases property on Washington Street in Boston, Massachusetts (the “Leasehold”),
where, prior to 2020, it operated a supermarket.
B. Management Contract Agreement Between Ming’s and New Ming Inc.
On March 1, 2020, Ming’s entered into a “Management Contract Agreement” (“MCA”)
with New Ming, a separate entity incorporated by several former employees of Ming’s.1

Under the MCA, Ming’s “contract[ed]” the use of the Leasehold, two adjacent parking
lots, and a nearby warehouse to New Ming. Aff. of Counsel as to Matters of Record (“Hughes
Aff.”) Ex. B, MCA 1 [Doc. No. 35-2]. New Ming was “allowed to continue to operate the
existing supermarket and prepared food business in the contracted area.” Id. at 2. To facilitate the
operation of the supermarket, Ming’s permitted New Ming “to use all existing equipment in the
supermarket[]” and Ming’s existing “business license or food permits[.]” Id. at 4, 7. The MCA
had a four year term, running from March 1, 2020, to February 28, 2024, and a renewal option.
Id. at 2.
The parties agreed that Ming’s would “not bear any costs related to the business[,]” as
“[a]ll expenses [were to] be borne by [New Ming].” Id. at 4. New Ming also agreed to pay a

$400,000 advance to Ming’s for the first ten months of the contract, followed by a quarterly
“contract fee” of $120,000. Id. at 2–3. The MCA’s “Payment Agreement” section, which

1 New Ming’s May 2023 bankruptcy filings, discussed in greater detail infra, list the following
individuals as “officers, directors, managing members, general partners, members in control,
controlling shareholders, or other people in control of [New Ming] at the time of the filing of the
[bankruptcy] case”: Mingzhe Zhang, president, director, and owner of 35% of the company;
Pengda Zheng, owner of 8%; Gezhong Yu, owner of 30%; Silong Huang, owner of 15%; and
Xian Wu Huang, owner of 12%. Pl.’s Resp. SUMF, Ex. 3, New Ming Chap. 7 Bankr. Filing ECF
52 (“Chap. 7 Filing”) [Doc. No. 38-3].
reflected the balance owed by New Ming to Ming’s upon commencement of the MCA, included
the following language:
In case [New Ming] refuse[s] to pay above balance due, nor [sic] pay before the
due date, [Ming’s] has their right to regain access back to the premises, [a]ll assets
and inventory in the store will be forfeit. In addition, [Ming’s] has [the] right to
shut down the premises without [New Ming’s] consent.
Id. at 14. As to the first payment due to Ming’s, New Ming owed $270,000, or the sum of the
$400,000 advance and $91,782.55 in preexisting liabilities,2 less a $1,782.55 “discount” and
$220,000 of inventory. Id.
Ming’s reserved the right to “unilaterally cancel the contract” if New Ming violated any
“relevant regulations and laws” or did not “compl[y] with certain agreements (5 days after
getting the written notice)[.]” Id. at 7. As part of the MCA, Ming’s and New Ming also executed
a Guaranty of Lease. Id. at 11; see id. at 6 (confirming New Ming “[saw] and understood the
lease agreement between [Ming’s] and the supermarket landlords (the ‘main lease’)” and agreed
that “[v]iolation of any terms of the main lease is also equal to a breach of [the MCA]”). In
relevant part, the Guaranty provided:
This Guaranty shall be absolute and [Ming’s] shall not be required to take any
proceedings against [New Ming], or give any notice to the undersigned before
[Ming’s] has the right to demand payment of performance by the undersigned upon
default by [New Ming]. This Guaranty and the liability of the undersigned
hereunder shall in no way be impaired or affected by any assignment which may
be made of said Lease, or any subletting [thereunder] or by any extension[s] of the
payment of any rental or any other sums provided to be paid by [New Ming], or by
any forbearance or delay in enforcing any of the terms, conditions, covenants or
provisions of said Contract.
Id. at 11.

2 The precise nature of these liabilities is unclear, as the amount is traceable to an invoice issued
by Ming’s to New Ming on February 1, 2020––one month prior to the date on which Ming’s and
New Ming signed the MCA. See id. at 10, 14.
New Ming breached its obligations under the MCA shortly after the MCA became
effective. Ming’s and New Ming entered into a Settlement Agreement on March 26, 2021,
pursuant to which New Ming agreed to pay Ming’s $169,616.49, plus $16,000 in legal costs, “in
full settlement of the Existing Defaults, the Termination Notice,” and a civil action filed by

Ming’s against New Ming in Suffolk County Superior Court. See Hughes Aff., Ex. J, Settlement
Agreement 1–3, 11 [Doc. No. 35-10].
C. New Ming and Lotus
On August 3, 2021, New Ming and Plaintiff Lotus Foods Boston, Inc. (“Lotus”) entered
into a Commercial Loan Agreement (the “Lotus CLA”), a Security Agreement (the “Lotus
Security Agreement”), a Promissory Note, and a Management Agreement.
Pursuant to the Lotus CLA, Lotus issued a $600,000 promissory note to New Ming (the
“Lotus Loan”). In the Lotus CLA, New Ming affirmed, inter alia, that it would “use the proceeds
of the [Lotus Loan] to continue [New Ming’s] business operations[.]” Hughes Aff., Ex. K, Lotus
CLA ¶ 3(a) [Doc. No. 35-11].
New Ming agreed to repay the Lotus Loan in $2,500 monthly installments, with any

outstanding principal and accrued interest due in full on February 28, 2024. Id. ¶ 3(c). As
collateral for the Lotus Loan, New Ming granted Lotus a security interest in the following
property (the “Collateral”):
(a) All tangible and intangible personal property, furniture, fixtures, appliances,
equipment and machinery now owned or hereafter acquired by [New Ming],
and the proceeds and products of such tangible personal property, furniture,
fixtures, equipment, and appliances;

(b) All inventory of [New Ming], include [sic] but not limited to all goods, whether
perishable or not, food, products, and other items;

(c) All additions or accessions to, or replacements of, the foregoing;
(d) All proceeds of the foregoing, including, but not limited to, insurance proceeds,
and all proceeds of proceeds;

(e) All cash, checking accounts, savings accounts, all other financial accounts of
any nature, chattel paper, notes, loans, judgments, receivables, or similar items;
and

(f) All assets of [New Ming], whether stated above or otherwise.

Hughes Aff. Ex. L, Lotus Sec. Agreement ¶ 2 [Doc. No. 35-12].
New Ming affirmed that, excluding the security interest granted to Lotus by the Lotus
Security Agreement, it “ha[d], or on acquisition [would] have, full title to the Collateral free
from any lien, security interest, encumbrance, or claim”; “[n]o other security agreement ha[d]
been made and no [other] security interest . . . ha[d] attached or ha[d] been perfected in the
Collateral or in any party of the Collateral”; the Collateral would “remain in [New Ming’s]
possession or control at all times, at [New Ming’s] risk of loss”; and, without Lotus’s prior
written consent, New Ming would not “sell, lease, assign, encumber, transfer, or dispose of the
Collateral or the proceeds from the Collateral[,]” other than “in the ordinary course of [New
Ming’s] business.” Id. ¶¶ 4–5, 9(a), 10(a). If New Ming defaulted on any of its obligations
regarding the Lotus Loan, see id. ¶ 24, Lotus, in relevant part, retained the right to declare New
Ming’s debt “immediately due and payable and . . . proceed to enforce payment of the secured
obligations” and “remove the Collateral from the premises of [New Ming.]” Id. ¶¶ 25(a)–(b).
On October 8, 2021, Lotus filed a Uniform Commercial Code Financing Statement (a
“Form UCC-1”) with Massachusetts’ Office of the Secretary of the Commonwealth, thereby
recording the executed Lotus Security Agreement. In the Form UCC-1, Lotus is listed as the
secured party, New Ming as the debtor, and the Collateral as follows:
All assets of the Debtor, including but not limited to, all tangible and intangible
personal property of New Ming, Inc. (the “Debtor”), including without limitation
all presently existing and hereafter arising accounts, contract rights and all other
forms of obligations owing to Debtor, all proceeds thereof, including, but not
limited to, all equipment, inventory, money and deposit accounts and other tangible
and intangible property of Debtor resulting from the sale or disposition of such
collateral and all proceeds of insurance, all guaranties and any security therefor,
and all books and records relating to any of the foregoing; all of Debtor’s inventory
now existing or hereafter created or acquired and wherever located, leased or
furnished or held by Debtor for sale, all raw materials, components, supplies and
materials used, produced or consumed in Debtor’s business as now or hereafter
conducted; all of Debtor’s equipment, office equipment, furniture, furnishings,
trade fixtures, tools, parts, accessories and attachments, wherever located, whether
now owned or hereafter created or acquired, and all replacements, substitutes,
accessories, additions and improvements to any of the foregoing; and all registered
and unregistered trademarks, service marks, trade names, copyrights, logos and
other insignias and licenses now or hereafter owned by or licensed to Debtor.
Pl.’s Resp. SUMF, Ex. 4, Form UCC-1 [Doc. No. 38-4].
D. New Ming Defaults on the Lotus Security Agreement, and Lotus Obtains a
Judgment Against New Ming
On February 25, 2022, Lotus sent a letter to New Ming’s counsel (the “Lotus Default
Letter”), in which Lotus “declar[ed] an Event of Default and accelerat[ed] the entire
indebtedness owed to [Lotus] by [New Ming].” Hughes Aff. Ex. O, Lotus Default Letter 1 [Doc.
No. 35-15]. As grounds, Lotus asserted that New Ming had failed to make required payments to
Lotus, “transferr[ed] credit card payments to an unrelated entity to avoid [Lotus’s] security
interest, interfere[d] in the management of the business, harass[ed] employees of the company
and . . . effective[ly] ouster[ed]” Lotus. Id. Lotus also declared its intent to take possession of the
collateral subject to the Lotus Security Agreement, warning New Ming that Lotus
ha[d] a security interest in all assets of New Ming, Inc., and d[id] not consent to the
use or disposition of those asserts absent payment in full of the loan obligation or
other written agreement between the parties. Furthermore, efforts to transfer the
collateral as previously done by some of the shareholders of New Ming, Inc. to a
new entity w[ould] be pursued to the fullest extent of the law[.]

Id.
On March 4, 2022, Lotus filed a Complaint in Confession of Judgment against New Ming
in the Court of Common Pleas of Allegheny County, Pennsylvania. Lotus ultimately obtained a
judgment on confession from that court.3
E. New Ming Defaults on the MCA Agreement
On March 8, 2022, four days after Lotus obtained a judgment against New Ming, Ming’s

sent New Ming a Notice of Default (the “Ming’s Notice of Default”), asserting New Ming’s
failure to pay both a $120,000 quarterly management fee owed to Ming’s and the required rent
for the Leasehold, adjacent parking lots, and warehouse covered under the MCA. Ming’s
instructed New Ming that, should New Ming fail to pay the outstanding management fee and
cure the rent non-payments “promptly[,]” Ming’s would terminate the MCA and “exercise its
rights and remedies thereunder, including but not limited to taking back possession of the
[Leasehold] and filing suit against New Ming and the Guarantors” to recover damages. See
Hughes Aff. Ex. T, Ming’s Notice of Default ECF 3 [Doc. No. 35-20].
On March 22, 2022, Ming’s terminated the MCA. Ming’s demanded, in relevant part,
that New Ming “immediately cease any and all management operations at the [s]upermarket . . .

and immediately contact [Ming’s attorney] to coordinate the turnover of all management
functions, key and entry codes, and any and all records related to the management” of the

3 Under the terms of the Lotus CLA [Doc. No. 35-11], New Ming “specifically waive[d] all
rights [it] ha[d] or may have [had] to notice and an opportunity for a hearing prior to execution
upon any judgment entered against [Lotus] pursuant to the terms hereof” and
irrevocably authorize[d] . . . any attorney . . . to appear for [New Ming] in any
[Pennsylvania court], and with or without a complaint or declaration filed, and
therein to enter and confess judgment against borrower in favor of lender . . . for
the entire amount due to lender upon such default or event of default as provided
herein[.]
Id. ¶ 9.
supermarket, adjacent parking lots, and warehouse. See Hughes Aff., Ex. U, Ming’s Termination
Notice ECF 3 [Doc. No. 35-21].
F. Further Litigation with New Ming
Lotus and Ming’s separate proceedings against New Ming continued on roughly parallel
tracks:

On March 24, 2022, Lotus filed suit in the Suffolk County Superior Court (the “Lotus-
New Ming Suit”), seeking enforcement of the judgment obtained by Lotus against New Ming in
the Court of Common Pleas of Allegheny County. Hughes Aff. Ex. Q, Compl., Lotus Foods
Boston, LLC v. New Ming, Inc., No. 2284CV00643 [Doc. No. 35-17].
On April 14, 2022, Ming’s filed suit against New Ming in the Suffolk County Superior
Court (the “Ming’s-New Ming Suit”), seeking damages for breach of contract and an injunction
barring New Ming from continuing its management operations at the supermarket. See Hughes
Aff., Ex. V, Doc. No. 35-22.
On April 15, 2022, a Superior Court judge denied New Ming’s emergency motion to stay

the Lotus-New Ming Suit and, inter alia, prohibited New Ming from “dissipat[ing]” any cash or
funds held in its identified accounts, ordered New Ming to provide Lotus’s counsel various
financial records, and mandated that New Ming send Lotus’s counsel a weekly accounting “of
the ordinary course of business expenses” incurred during the pendency of the litigation. Hughes
Aff. Ex. R, Order, Lotus Foods Boston, LLC v. New Ming, Inc., No. 2284CV00643, at ECF 1, 1
¶ 1, 2 ¶ 5, 3 ¶ 8 [Doc. No. 35-18]. Where New Ming “d[id] not currently have a system in place
tracking inventory[,]” the court instructed New Ming to “allow Lotus Foods to enter the store to
look at inventory” or, if New Ming established an inventory tracking system while the case was
ongoing, “provide weekly inventory reports” to Lotus. Id. at ECF 4 ¶ 7.
Roughly one month later, on May 9, 2022, in the Ming’s-New Ming Suit, a Superior
Court judge granted a preliminary injunction against New Ming, to take effect June 9, 2022.
Hughes Aff. Ex. W, Prelim. Injunc., Ming’s Supermarket, Inc. v. New Ming Inc.,
No. 2284CV00823 [Doc. No. 35-23]. The injunction restrained New Ming “from continuing to

manage and operate the supermarket” and ordered New Ming to “turn over all management
functions, key and entry codes, and any and all records related thereto to [Ming’s] and to not
interfere with [Ming’s] resumption of direct management of the business.” Id.
G. NYMH’s Receivership and Defendant Go Fresh’s Purchase
On May 31, 2022, the United States Securities and Exchange Commission (“SEC”) filed
a complaint (the “SEC suit”) against iFresh and Deng, alleging violations of Section 10(b) of the
Exchange Act and Rule 10b-5; Section 17(a) of the Securities Act; Section 13(a) of the
Exchange Act and Rules 12b-20 and 13a-1; and Section 13(b)(2)(A) and (B) of the Exchange
Act.
Separately, in August 2022, a creditor initiated proceedings in the United States District
Court for the District of Delaware for breach of contract and the appointment of a receiver after

NYMH failed to repay various credit facilities, for which iFresh and its subsidiaries served as
guarantors. On August 31, 2022, the District Court placed iFresh and its subsidiaries, including
NYMH and Ming’s, into a receivership (the “Receivership”).
On March 8, 2023, the District Court approved the private sale of all of NYMH’s stock to
Defendant Go Fresh. See Hughes Aff. Ex. BB, Ord. Granting Receiver’s Mot. Pursuant to 28
U.S.C. § 2004 for Entry of Ord. Authorizing (I) the Private Sale of the Stock of NYM Hld’g,
Inc., (II) the Waiver of Requirements of 28 U.S.C. §§ 2001 and 2004, and (III) the Dismissal of
Receivership Case Upon Closing of Sale 4–5, 9 (“Receivership Sale Ord.”) [Doc. No. 35-28].
Following the sale, the Receivership was dismissed on March 30, 2023. See Hughes Aff. Ex.
CC, Receivership Civ. Dkt. ECF 12 [Doc. No. 35-29].
Accordingly, as of March 8, 2023, the relevant ownership and corporate structure was as
follows: (1) Deng owns 100% of the stock of Go Fresh and is its president; (2) Go Fresh owns

100% of the stock of NYMH; and (3) NYMH owns 100% of the stock of Ming’s.
H. Ming’s Takes Over the Supermarket
On or around April 15, 2023, after Go Fresh’s purchase of NYMH and its subsidiaries,
including Ming’s, Ming’s entered the Leasehold and took over the operations and management
of the supermarket. To effect these changes, Ming’s brought in new managers for the
supermarket, hired approximately twenty-four new employees, and retained some of New
Ming’s former employees.
On April 15 or April 16, 2023, upon Ming’s taking of the Leasehold and operation of the
supermarket, employees from both New Ming and Ming’s surveyed the food item inventory in
the supermarket. To facilitate the inventory survey, the supermarket closed for a “a day or half a
day.” Pl.’s Resp. SUMF, Ex. 8, Long Deng Dep. 18:6–19:9 [Doc. No. 38-8]. Ming’s retained the

inventory and the on-site cash.
Ming’s continues to manage and operate the supermarket at the Leasehold.
I. Deng Settles the SEC Suit
On May 23, 2023, Deng consented to entry of judgment against him without admitting or
denying the allegations in the SEC suit. See Pl.’s Resp. SUMF, Ex. 7, U.S. Sec. & Exch.
Comm’n v. iFresh et al, J. as to Def. Long Deng ECF 1 [Doc. No. 38-7]. Pursuant to the terms of
the judgment, Deng agreed to pay $134,706 in profit disgorgement, prejudgment interest, and a
statutory penalty. See id. at ECF 5 ¶ VI, 7 ¶ VII. He also agreed to a five-year bar on “acting as
an officer or director of any issuer that has a class of securities registered pursuant to Section 12
of the Exchange Act . . . or that is required to file reports pursuant to Section 15(d) of the
Exchange Act[.]” Id. at ECF 4 ¶ V.
J. New Ming’s Bankruptcy Proceedings
On May 24, 2023, after Ming’s had taken control of the store and the inventory, New
Ming filed a petition for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the District of

Massachusetts.
In its filed Bankruptcy Schedules, New Ming identified “[$]10,000 + (TBD)” in
Accounts Receivable, which it described as “cash of New Ming Inc. in possession of Ming’s
Supermarket Inc.” Chap. 7 Filing ECF 10 [Doc. No. 38-3]. New Ming also listed grocery
inventory, valued at $750,000 as of April 15, 2023, as one of its assets. Id. at ECF 11. Where the
Bankruptcy Schedules called for information regarding “any inventories of the debtor’s property
[that had] been taken within [two] years before filing th[e] case[,]” New Ming represented that
Ming’s “supervised the taking of” $700,000 of inventory on April 15, 2023, and is in “possession
of [the] inventory records.” Id. at ECF 51–52.
As for its outstanding liabilities, New Ming enumerated various debts totaling

$3,932,091.76, including the $600,000 promissory note owed to Lotus. Id. at ECF 22, 35. When
asked if “any creditors ha[d] claims secured by [New Ming’s] property[,]” New Ming answered
in the negative. Id. at ECF 17.
On May 26, 2023, New Ming filed a Notice and Suggestion of Bankruptcy in the Lotus-
New Ming Suit, thereby staying the matter. Over a year later, New Ming filed a notice to stay the
Ming’s-New Ming Suit.
II. Procedural Background
In their Motion for Summary Judgment [Doc. No. 32], Defendants seek summary
judgment on all counts. Lotus opposes the motion as to the breach of contract and unjust
enrichment claims but has withdrawn its civil conspiracy claim. See Elec. Clerk’s Notes [Doc.
No. 50].4
III. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate
when “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material when, under
the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Baker v. St. Paul Travelers, Inc., 670 F.3d 119, 125 (1st
Cir. 2012). A dispute is genuine if a reasonable jury could return a verdict for the non-moving
party. Anderson, 477 U.S. at 248.
The moving party bears the initial burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be satisfied
in two ways: (1) by submitting affirmative evidence that negates an essential element of the non-
moving party’s claim or (2) by demonstrating that the non-moving party failed to establish an
essential element of its claim. Id. at 331.

Once the moving party establishes the absence of a genuine dispute of material fact, the
burden shifts to the non-moving party to set forth facts demonstrating that a genuine dispute of
material fact remains. Id. at 321. The non-moving party cannot oppose a properly supported
summary judgment motion by “rest[ing] on mere allegations or denials of [the] pleadings.”
Anderson, 477 U.S. at 248. Rather, the non-moving party must “go beyond the pleadings and by

4 Lotus styled its opposition as a Response to Defendants’ Motion for Summary Judgment and
Plaintiff’s Cross Motion for Summary Judgment (“Response”) [Doc. No. 37]. The court denied
Lotus’s cross-motion without prejudice where Lotus did not file the motion in accordance with
the requirements of Local Rule 56.1. See Elec. Clerk’s Notes [Doc. No. 50].
[his or] her own affidavits, or by the depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at
324 (quotations omitted). Disputes over facts “that are irrelevant or unnecessary” will not
preclude summary judgment. Anderson, 477 U.S. at 248.

When reviewing a motion for summary judgment, the court must take all properly
supported evidence in the light most favorable to the non-movant and draw all reasonable
inferences in the non-movant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).
“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge . . . ruling on a motion for summary
judgment.” Anderson, 477 U.S. at 255.
IV. Discussion
Based on the summary judgment record, a reasonable jury could find that, in the spring of
2023, Ming’s entered the store, took over the operations of the store, and took control of all
assets of the store. Opp’n 2 [Doc. No. 39]. With all reasonable inferences resolved in Lotus’s
favor, Lotus can also show that Go Fresh, which became the sole owner of NYMH prior to the

2023 takeover of the supermarket at issue here, is liable for the obligations of its wholly owned
subsidiaries.
Defendants argue that they nonetheless are entitled to summary judgment where Lotus
has failed to muster evidence in support of any claims against Deng in an individual capacity;
cannot establish that Defendants are “successors-in-interest” to New Ming under either a de facto
merger theory or a mere continuation theory; and Lotus’s unjust enrichment claim is barred
where there is an available remedy at law and where Lotus “has not alleged that [it] conferred
any benefit upon the Defendants.” Mem. ISO Mot. for Summ. J. 17–18, 23–24 [Doc. No. 36].
The court addresses each of these arguments in turn.
A. Deng’s Individual Liability
In naming Deng as a defendant in his individual capacity, see Compl. ¶¶ 3–4 [Doc. No.
1]; Opp’n 8–9 [Doc. No. 39], Lotus asks this court to “pierce the corporate veil” between Deng
and his corporate entities and their subsidiaries.
Although a corporation’s principal is typically not liable for the corporation’s acts, “[t]his

general rule . . . gives way when circumstances arise that provide an occasion to look beyond the
corporate form for the purpose of defeating fraud or wrong, or for the remedying of injuries.”
Kraft Power Corp. v. Merrill, 464 Mass. 145, 148, 981 N.E.2d 671, 677–78 (2013). Under such
circumstances, “the corporate veil can be pierced, as a tool of equity, to disregard the
corporation’s existence and impose liability on individual principals.” Id. (citing United States v.
Bestfoods, 524 U.S. 51, 64 (1998)). As a general matter, “Massachusetts has been somewhat
more strict than other jurisdictions in respecting the separate entities of different corporations.”
Birbara v. Locke, 99 F.3d 1233, 1238 (1st Cir. 1996) (quotation omitted).
Under Massachusetts law, a court’s decision as to whether the corporate veil should be
pierced is guided by the standard set forth in My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 233 N.E.2d 748 (1968) (“My Bread”). See Birbara, 99 F.3d at 1240 (“My Bread
sets the standard for deciding when to pierce the corporate veil under Massachusetts law.”). In
My Bread, the Massachusetts Supreme Judicial Court articulated that, where there is also
common stock ownership and common management among the entities, disregarding the
corporate form may be appropriate
(a) when there is active and direct participation by the representatives of one
corporation, apparently exercising some form of pervasive control, in the activities
of another and there is some fraudulent or injurious consequence of the
intercorporate relationship, or (b) when there is a confused intermingling of activity
of two or more corporations engaged in a common enterprise with substantial
disregard of the separate nature of the corporate entities or serious ambiguity about
the manner and capacity in which the various corporations and their respective
representatives are acting. 353 Mass. at 619, 233 N.E.2d at 752.
In Pepsi-Cola Metropolitan Bottling Co., Inc. v. Checkers, 754 F.2d 10 (1st Cir. 1985)
(“Pepsi-Cola”), the First Circuit “elucidate[d] some factors that may be considered when
engaging in a My Bread analysis.” Birbara, 99 F.3d at 1240. Such factors include
insufficient capitalization for purposes of the corporate undertaking,
nonobservance of corporate formalities, nonpayment of dividends, insolvency of
the corporation at the time of the litigated transaction, siphoning of corporate funds
by the dominant shareholders, nonfunctioning of officers and directors other than
the shareholders, absence of corporate records, use of the corporation for
transactions of the dominant shareholders, and use of the corporation in promoting
fraud.

Pepsi-Cola, 754 F.2d at 16; see Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 128 (2006) (citing the Pepsi-Cola factors). The Massachusetts Supreme Judicial Court has since
recognized the Pepsi-Cola factors. See Lipsitt v. Plaud, 466 Mass. 240, 253, 994 N.E.2d 777, 788 (2013) (noting that the Supreme Judicial Court “recognized” these factors in Attorney General v.
M.C.K., Inc., 432 Mass. 546, 555 & n.19, 736 N.E.2d 373, 380–81 & n.19 (2000)).
Under My Bread and Pepsi-Cola, Lotus has not made the requisite showing that would
permit a reasonable jury to pierce through the corporate veil to reach Deng personally for any
activities undertaken by Go Fresh or its wholly owned subsidiaries.
Deng is the chairman, chief executive officer, and owner of Go Fresh and the “president”
of Ming’s, which is itself ultimately owned by Go Fresh. There may well be further indicia of
common management and ownership across Go Fresh and its subsidiaries. But, although it is
necessary, “common ownership of the stock of two or more corporations together with common
management” is not sufficient, to pierce the corporate veil. See My Bread, 353 Mass. at 619, 233
N.E.2d at 752.
In the factual record before the court, Lotus has made no specific showing as to the other
factors that, when taken together with common ownership and management of Deng’s corporate
entities, may permit Lotus to reach Deng in his individual capacity. There is, for example, no
showing that Go Fresh, NYMH, or Ming’s were undercapitalized, insolvent at the time Ming’s

removed New Ming from the supermarket, or failed to maintain corporate records. See Pepsi-
Cola, 754 F.2d at 16. There is likewise no evidence that Deng “siphon[ed]” funds from his
corporate entities or their subsidiaries, brought on “nonfunctioning” officers and directors (or
that officers and directors besides Deng exist), ignored specific corporate formalities or dividend
obligations, or undertook transactions, legitimate or otherwise, for Deng’s benefit, rather than
that of his entities. See id. The overall tenor of Lotus’s allegations does suggest that Deng used
Go Fresh and Ming’s to facilitate or “promot[e] fraud” with respect to the April 2023 taking of
collateral pledged to Lotus, see id., but such a suggestion, on its own, is not sufficient to raise
Lotus’s proposed basis for disregarding Go Fresh’s corporate form beyond the “merely
colorable” level. See Anderson, 477 U.S. at 249; Irobe v. United States Dep’t of Agric., [890 F.3d

371](https://www.courtlistener.com/opinion/4499746/irobe-v-us-dept-of-agriculture/), 380–81 (1st Cir. 2018).
Accordingly, Lotus has not met its burden to sufficiently demonstrate either the requisite
pervasive control between Deng and his corporate entities leading to fraud or injury; or
“confused intermingling” of Deng and the entities’ assets or corporate structure, in substantial
disregard of the entities’ separateness or “serious ambiguity” regarding the “manner and
capacity” in which they entities have acted. See My Bread, 353 Mass. at 619, 233 N.E.2d at 752.
Defendants’ motion for summary judgment is therefore GRANTED as to the claims against
Deng in his individual capacity.
B. Successor Liability
“As a general rule of corporate law, the liabilities of a corporation are not imposed upon
its successor.” Smith v. Kelley, 484 Mass. 111, 120, 139 N.E.3d 314, 322 (2020). If, however, a
corporation undergoes a “reorganization transforming a single company from one corporate
entity into another . . . successor liability may be imposed if the entity remains essential the

same, despite a formalistic change of name or of corporate form.” Ribadeneira v. New Balance
Athletics, Inc., 65 F.4th 1, 23 (1st Cir. 2023) (construing Massachusetts law) (quotations
omitted).
Under Massachusetts law, a successor in interest may be held responsible for its
predecessor’s liabilities if:
(1) the successor expressly or impliedly assumes liability of the predecessor, (2) the
transaction is a de facto merger or consolidation, (3) the successor is a mere
continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid
liabilities of the predecessor.

Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 556, 887 N.E.2d 244, 254–55 (2008); see
Smith, 484 Mass. at 120 n.10, 139 N.E.3d at 323 n.10 (same); Guzman v. MRM/Elgin, 409
Mass. 563, 566, 567 N.E.2d 929, 931 (1991). “The public policy underlying the imposition of
successor liability is the fair remuneration of innocent corporate creditors.” Milliken, 451 Mass.
at 556, 887 N.E.2d at 255 (citing Cargill, Inc. v. Beaver Coal & Oil Co., Inc., 424 Mass. 356,
362, 676 N.E.2d 815, 820 (1997)).
In its breach of contract claim (Count I), Lotus asserts that Go Fresh is liable for breach
of contract as a successor to New Ming under the “de facto merger” and “mere continuation”
exceptions, as well as under an independent “continuity of enterprise” theory.
1. Prerequisite Asset Transfer
“In order for a corporation to be deemed a successor corporation in the first place, it must
be a successor to all, or substantially all, of another corporation’s assets.” Premier Cap., LLC v.
KMZ, Inc., 464 Mass. 467, 475, 984 N.E.2d 286, 292 (2013) (quotation omitted). An asset
transfer between the predecessor and successor entities is thus “an essential prerequisite to

successor liability[.]” Id. (quoting Carreiro v. Rhodes Gill & Co., 68 F.3d 1443, 1448 (1st Cir.
1995)).
Here, the factual record before the court would permit a reasonable jury to find that New
Ming transferred the inventory in the supermarket and on-site cash to Ming’s on April 15, 2023.
Compare, e.g., Go Fresh Interrogs. ECF 6 Doc. No. 38-1 and Long Deng Dep. 11:23–12:16 Doc. No. 38-8,
with Chap. 7 Filing ECF 11, 51–52 Doc. No. 38-3;

Pengda Zheng Examination 12:3–15 Doc. No. 38-5; and Lotus Sec. Agreement ¶ 2 Doc.
No. 35-12. Excluding
“office furniture, fixtures, [] equipment[,] and collectibles” valued at $10,000 and $200 in a
checking account, see Chap. 7 Filing ECF 9, 12, 16 [Doc. No. 38-3], this constituted “all, or
substantially all, of” New Ming’s accessible assets. See Premier Cap., LLC, 464 Mass. at 475, 984 N.E.2d at 292.5
The asset transfer requirement thus met, the court proceeds to Defendants’ assertion that
there is no genuine dispute of as to the existence of a predecessor-successor relationship between

New Ming and the Go Fresh entities.
2. De Facto Merger
Although “[n]o single factor is necessary or sufficient to establish a de facto merger[,]”
courts generally consider the following factors:
[W]hether (1) there is a continuation of the enterprise of the seller corporation so
that there is continuity of management, personnel, physical location, assets, and
general business operations; whether (2) there is a continuity of shareholders which
results from the purchasing corporation paying for the acquired assets with shares
of its own stock, this stock ultimately coming to be held by the shareholders of the
seller corporation so that they become a constituent part of the purchasing
corporation; whether (3) the seller corporation ceases its ordinary business
operations, liquidates, and dissolves as soon as legally and practically possible; and
whether (4) the purchasing corporation assumes those obligations of the seller
ordinarily necessary for the uninterrupted continuation of normal business
operations of the seller corporation.

Cargill, 424 Mass. at 359–60, 676 N.E.2d at 818 (citing In re Acushnet River & New Bedford
Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1010, 1015 (D. Mass. 1989)). The
court addresses each of these factors as they pertain to New Ming and Defendants.
a. Continuity of the Enterprise
First, as to “continuity of management, personnel, physical location, assets, and general
business operations[,]” Cargill, 424 Mass. at 359–60, 676 N.E.2d at 818, a reasonable jury could

5 New Ming also identified $1,073,575 in “deposits and prepayments” in its May 2023
Bankruptcy Schedules, consisting of a $1,375 prepayment for trash removal, $70,200 in
supermarket rent prepayments, and a $912,000 parking lot rent prepayment. Chap. 7 Filing ECF
9–11 [Doc. No. 38-3].
find from the factual record that New Ming’s operations, assets, and some of its personnel were
effectively absorbed by Ming’s. But Lotus has pointed to no evidence of a continuity of
“management, officers, directors, and shareholders.” See Am. Paper Recycling Corp. v. IHC
Corp., 707 F. Supp. 2d 114, 120 (D. Mass. 2010) (“[I]n determining whether a de facto merger

has occurred, courts pay particular attention to the continuation of management, officers,
directors, and shareholders.” (quoting Cargill, 424 Mass. at 360, 676 N.E. 2d at 818)).
In Cargill, a case in which the successor entity was held liable for its predecessor’s debt,
the successor entity “simply became” the predecessor for the purposes of the continuity factor: it
used the predecessor’s name, “conducted the business in substantially the same fashion . . . from
the same locations [and] with the same employees and operational management[,]” used the
same telephone numbers and equipment, and retained the predecessor’s “customer lists and
contracts[.]” 424 Mass. at 360–61, 676 N.E.2d at 818–19. By contrast, in American Paper
Recycling Corp., the court, applying Cargill, found that the facts of the case weighed against
successor liability where the purported successor, inter alia, “did not retain key members of Ivy’s

management team” and had none of the same corporate officers or directors, was formed via an
arms-length exchange of good and fair consideration[,]” and chose to discontinue many of the
prior entity’s vendor relationships and ownership of real property. Am. Paper Recycling Corp.,
707 F. Supp. 2d at 120–21.
Here, there was at most a de minimis interruption in the business of the supermarket
when Ming’s removed New Ming on April 15, 2023. New Ming’s inventory and on-site cash
were transferred to Ming’s, as discussed supra, and some New Ming employees were hired to
continue to work at the supermarket now under Ming’s control. The supermarket continued on in
the same location on Washington Street and under the same name, with no more than “a day or
half a day” stoppage of store operations to permit employees from New Ming and Ming’s to
survey the supermarket’s inventory.
As to whether there is continuity of “management, officers, [and] directors” Am. Paper
Recycling Corp., 707 F. Supp. 2d at 120, the factual showing from Lotus is weaker. At the time

Ming’s took over the supermarket, New Ming was an entity separate from Go Fresh and its
wholly owned subsidiaries, and was incorporated and operated by individuals who, based on the
record before the court, were not placed in any management roles with Ming’s after its April
2023 takeover. The lack of overlap between New Ming’s leadership and that of Ming’s is further
evidenced by New Ming’s bankruptcy filings, in which New Ming’s shareholders and officers––
none of whom are Deng, Ming’s, NYMH, Go Fresh, or Deng’s prior entity, iFresh––are attested
to. See Chap. 7 Filing ECF 52, 54–55 [Doc. No. 38-3].
b. Continuity of Shareholders
Continuity of shareholders “is found where the purchaser corporation exchanges its own
stock as consideration exchanges its own stock as consideration for the seller corporation’s assets
so that the shareholders of the seller corporation become a constituent part of the purchaser

corporation.” Dayton v. Peck, Stow, and Wilcox Co., 739 F.2d 690, 693 (1st Cir. 1984)
(applying Massachusetts law). Although the First Circuit “do[es] not understand the
[Massachusetts] state law to be that continuity of shareholders is absolutely required, it remains a
very weighty factor in identifying a de facto merger.” DeJesus v. Park Corp., 530 Fed. App’x 3,
8 (1st Cir. 2013).
Insofar as Lotus asserts that Defendants, through Ming’s, “took over the [supermarket]
and began operating it without any payment to [Lotus] or other creditors[,]” Compl. ¶ 22 [Doc.
No. 1], there is no basis on which to conclude that an exchange of stock took place.
Massachusetts law, however, does contemplate a broader application of this factor, such that the
question for the court is more akin to whether there is “shareholder continuity or any alternative
means of continuity of control.” DeJesus, 550 Fed. App’x at 8 (emphasis added).
But, although “there is no requirement that there be complete shareholder identity
between the seller and a buyer before corporate successor liability will attach[,]” Cargill, [424

Mass. at 361](https://www.courtlistener.com/opinion/6577282/cargill-inc-v-beaver-coal-oil-co/#361), 676 N.E.2d at 819, Lotus has offered no evidence that any controlling stake in New
Ming, however defined, passed to Ming’s, NYMH, or Go Fresh. See Goguen v. Textron, Inc., 476 F. Supp. 2d 5, 13 (D. Mass. 2007) (applying Massachusetts law sand finding continuity of
shareholders factor not satisfied where defendant “paid cash for the assets of [the purported
predecessor entity], and thus no shares exchanged hands”); see also Cargill, 424 Mass. at 358,
361, 676 N.E.2d at 817–19 (although not “shareholder continuity in its fullest sense[,]” that seller
company’s sole shareholder became director of successor company and bought 12.5%
shareholder interest in successor “with the sale proceeds” sufficient for this factor).
Thus, where there is no common identity between New Ming’s ownership and the
ownership of Ming’s, NYMH, or Go Fresh, “[t]his factor . . . cuts sharply against a finding of de

facto merger.” DeJesus, 530 Fed. App’x at 7.
c. Cessation of Predecessor’s Business Operations.
The third factor for de facto merger––whether the purported predecessor “ceases its
ordinary business operations, liquidates, and dissolves as soon as legally and practically
possible[,]” Cargill, 424 Mass. at 360, 676 N.E.2d at 818––is satisfied here. Although
Defendants contend that New Ming’s “liquidation is not a proof of a de facto merger, but rather
the exact opposite[,]” Mem. ISO Defs.’ Mot. for Summ. J. 22 [Doc. No. 36], there is no dispute
that New Ming ceased its business operations and filed a petition for Chapter 7 bankruptcy no
later than May 24, 2023. Milliken, 451 Mass. at 558, 887 N.E.2d at 256 (successor liability can
attach “where a corporation eases all of its ordinary business operations, which are assumed by
another corporation, and liquidates its assets”).
d. Assumption of Obligations Necessary to Continue Normal Business
Operations
When Ming’s assumed control over the supermarket and removed New Ming in April
2023, New Ming’s obligations, in relevant part, consisted of the Lotus Loan, a $400,000
promissory note owed to another party, and debts owed to service providers and food and
product distributors.
Setting aside the Lotus Loan, which was not explicitly assumed by Ming’s or otherwise
taken on by Go Fresh, the record before the court does not speak to whether Ming’s, or any other

entity in the corporate structure, assumed the $400,000 promissory note or the liabilities
associated with the supermarket’s other suppliers and service providers. Whether this factor
counsels for or against finding a de facto merger is thus unclear. See Cargill, 424 Mass. at 362,
676 N.E.2d at 819–20 (factor satisfied where successor company agreed to pay certain creditors
of the predecessor and assumed the predecessor’s installation contracts, service contracts, and
delivery obligations); DeJesus v. Bertsch, Inc., 898 F. Supp. 2d 353, 361 (D. Mass. 2012) (factor
satisfied where successor, inter alia, assumed predecessor’s “backlogged purchase orders[,]”
“renewed distributor contracts,” and “reset and assumed . . . terms with vendors like UPS and
FedEx”), aff’d sub nom. DeJesus v. Park Corp., 530 Fed. App’x 3 (1st Cir. 2013); Goguen, 476
F. Supp. 2d at 13 (factor satisfied where successor “assumed various obligations [of the

predecessor,]” including “trade payables”).
e. Conclusion
Where the court finds no continuity of shareholders and an inconsistent showing of the
continuity of enterprise, and where one of the other two factors in the de facto merger analysis is
equivocal, the court concludes that Go Fresh cannot be held liable as a successor to New Ming
for the Lotus Loan under the de facto merger exception. See DeJesus, 530 Fed. App’x at 8
(“Where, as here, there is no shareholder continuity or any alternative means of continuity of
control, and one of the remaining three factors is equivocal, we conclude that no such merger

occurred[.]”); Am. Paper Recycling Corp., 707 F. Supp. 2d at 121 (noting that a weak showing
for the continuity factor “weighs heavily against a de facto merger”).
3. Mere Continuation
To determine whether a successor entity is a “mere continuation” of its predecessor and
therefore subject to successor liability, courts “examine the continuity or discontinuity of the
ownership, officers, directors, stockholders, management, personnel, assets, and operations of
the two entities.” Smith, 484 Mass. at 120–21, 139 N.E.3d at 323. No single factor is dispositive
in this fact-based inquiry, and the ultimate focus of the analysis is “whether one company has
become another for the purpose of eliminating its corporate debt.” Id. (quoting Milliken, 451
Mass. at 558, 887 N.E.2d at 255–56); Milliken, 451 Mass. at 558, 887 N.E.2d at 255 (“In
essence, the purchasing corporation is merely a ‘new hat’ for the seller.” (quotation omitted)).

In McCarthy v. Litton Industries, Inc., 410 Mass. 15, 23, 570 N.E.2d 1008, 1013 (1991),
the Massachusetts Supreme Judicial Court “reaffirm[ed] that the indices of ‘continuation’ are, at
a minimum: continuity of directors, officers, and stockholders; and the continued existence of
only one corporation after the sale of assets” (emphasis added). As noted supra, Lotus offers no
evidence on which a reasonable jury could conclude that there was a continuity of owners,
directors, or officers as between New Ming and Ming’s, NYMH, or Go Fresh. Accordingly, the
court finds that Go Fresh cannot be held liable for the Lotus Loan under the mere continuation
exception. See id.; Dayton, 739 F.2d at 693 (purported successor entity’s “purchase of
[predecessor’s] assets for cash d[id] not bring this case within the ‘mere continuation’ exception”
where “[t]he key element of a continuation is a common identity of the officers, directors, and
stockholders in the selling and purchasing corporations” (quotation omitted)); Goguen, 476 F.
Supp. 2d at 15 (“There was no continuity of shareholders, directors, or officers [between the
predecessor and purported successor company], and therefore [the mere continuation] theory is

not applicable.”).
4. Continuity of Enterprise
Lotus also asserts that, distinct from a de facto merger or mere continuation, there is a
“continuity of enterprise between [New Ming] and Defendants’ operation of the New Ming
Store[,]” under which liability inures to the Defendants. Opp’n 5–6, 8 [Doc. No. 39]. As support,
Lotus cites to the Massachusetts Supreme Judicial Court’s opinion in Cargill, including its
“positive[] cit[ation]” to Turner v. Bituminous Casualty Co., 397 Mich. 406, 406, 411, 244
N.W.2d 873, 874–75 (1976). See Opp’n 8 [Doc. No. 39].
But Lotus overreads this reference to the “continuity of enterprise” theory of successor
liability. Rather than adopt or otherwise validate this theory, the Supreme Judicial Court in
Cargill merely acknowledged in a footnote that “[w]here no stock is exchanged, corporate

successor liability has more frequently been imposed on a theory of ‘continuity of enterprise’”
and cited to Turner, an out-of-state case, as one such example. 424 Mass. at 361 n.8, 676 N.E.2d
at 819 n.8; see id. (“There is no claim here by [the plaintiff] that we should apply that theory of
liability and we do not do so.”). Later, in McCarthy, a product liability case, the Supreme
Judicial Court acknowledged that “[a] few courts” had adopted the “continuity of enterprise”
theory but did not itself adopt it. 410 Mass. at 22, 570 N.E.2d at 1013; see DeJesus, 530 Fed.
App’x 3 at 7 (“Massachusetts courts have suggested that they would not adopt a related,
independent exception embraced by other jurisdictions, that of ‘continuation of enterprise.’”);
Nat’l Gypsum Co. v. Continental Brands Corp., 895 F. Supp. 328, 340 (D. Mass. 1995)
(“[W]hile [the Massachusetts Supreme Judicial Court] has not directly addressed the less radical
‘enterprise’ theory of Turner . . . there is no indication that it would adopt any theory justifying
successor liability without fault.”). Therefore, where Lotus has not demonstrated that “continuity
of enterprise” is relevant to this dispute under Massachusetts law, the court does not further

address the argument.
In light of the preceding analysis, Defendants’ motion for summary judgment on Lotus’s
breach of contract claim is GRANTED.
C. Lotus’s Unjust Enrichment Claim
With respect to Lotus’s unjust enrichment claim (Count II), Defendants argue that such a
claim is barred where there is an available remedy at law and where Lotus “has not alleged that
[it] conferred any benefit upon the Defendants.” Mem. ISO Mot. for Summ. J. 23–25 [Doc.
No. 36].
“A party with an adequate remedy at law cannot claim unjust enrichment.” Shaulis v.
Nordstrom, Inc., 865 F.3d 1, 16 (1st Cir. 2017) (applying Massachusetts law). Where an express
contract exists, “Massachusetts law does not permit litigants ‘to override [the contract] by

arguing unjust enrichment.’” Id. (quoting Platten, 437 F.3d at 130).
Here, however, where Defendants have taken the position that they are not parties to the
Lotus Security Agreement and that the MCA was a valid, enforceable contract under which
Ming’s––not New Ming––always owned the supermarket’s inventory while the MCA was in
effect, they cannot simultaneously assert that Lotus has an adequate remedy via enforcement of,
or proceedings related to, the Lotus Security Agreement. Stated otherwise, Defendants may not
claim continuous ownership of the supermarket’s inventory while implying that Lotus’s proper
avenue for relief is to move against that same inventory under its contract with a party who, in
Defendants’ view, could never lay claim to the inventory in the first instance. Thus, the court
sees no bar to Lotus’s assertion of an unjust enrichment claim against Defendants.
Unjust enrichment is “the retention of money or property of another against the
fundamental principles of justice or equity and good conscience.’” Columbia Plaza Assocs. v.

Northeastern Univ., 493 Mass. 570, 588–89, 227 N.E.3d 999, 1018 (2024) (quoting Sacks v.
Dissinger, 488 Mass. 780, 789, 178 N.E.3d 388, 397 (2021)). An unjust enrichment claim has
three elements: “(1) a benefit conferred upon the defendant by the plaintiffs; (2) an appreciation
or knowledge by the defendant of the benefit; and (3) acceptance or retention by the defendant of
the benefit under the circumstances would be inequitable without payment for its value.”
Tomasella v. Nestlé USA, Inc., 962 F.3d 60, 82 (1st Cir. 2020) (applying Massachusetts law)
(quoting Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir.
2009)).
As to the first element, the court finds that Defendants have not sufficiently established
the absence of a genuine dispute as to whether Lotus “conferred any benefit upon the

Defendants.” Mem. ISO Mot. for Summ. J. 24 [Doc. No. 36]. A reasonable jury, relying on the
factual record before the court, could conclude that Go Fresh “received a measurable,
nonspeculative benefit” from Lotus in the form of the supermarket inventory purchased by New
Ming with funds provided pursuant to the Lotus CLA and Security Agreement, over which
Ming’s assumed control in April 2023. See Tody’s Serv., Inc. v. Liberty Mut. Ins. Co., 496
Mass. 197, 201, 260 N.E.3d 309, 313 (2025) (defendant entitled to judgment as a matter of law
on unjust enrichment claim where “the summary judgment record reveal[ed] no triable issue
whether [defendant] received a measurable, nonspeculative benefit from [plaintiff]”).
As indicated supra, a reasonable jury could find that, when Ming’s took over the
operations of the supermarket, it also took control of the supermarket’s assets, including its
inventory. The jury similarly could find that New Ming purchased that inventory as part of the
store operations for which it was responsible under the MCA, and that the inventory was funded,

at least in part, by the proceeds of the Lotus Loan, and intended as collateral for that Loan.
The value of the supermarket inventory over which Ming’s took control is ostensibly
“measurable[,]” see Tody’s Serv., Inc., 496 Mass. at 201, 260 N.E.3d at 313, as a jury could
credit New Ming’s assertion in its Bankruptcy Schedules that Ming’s “supervised the taking of”
$700,000 of inventory. Sched. A/B ECF 51–52 [Doc. No. 38-3]. Drawing all reasonable
inferences in Lotus’s favor, the summary judgment record regarding Go Fresh’s corporate
structure is also sufficient for a jury to find that, insofar as Ming’s retained the inventory without
cost, any associated profit from the sale of the inventory ultimately benefited Go Fresh as Ming’s
parent company. See Receivership Sale Ord. 5 [Doc. No. 35-28]; Go Fresh Interrogs. ECF 4
[Doc. No. 38-1].

As to the second requirement for unjust enrichment, a reasonable jury could find that Go
Fresh was aware of or had knowledge of, or should have been aware of or had knowledge of, the
benefit insofar as (1) Lotus publicly filed a Form UCC-1 in October 2021, in which it listed the
inventory as collateral for the Lotus Loan given to New Ming; and (2) Ming’s, acting as a wholly
owned subsidiary of Go Fresh, asserted control over that inventory in April 2023 when it retook
the supermarket. See Tomasella, 962 F.3d at 82. Finally, the summary judgment record would
permit a reasonable jury to infer that, where the jury could reasonably find that Lotus was
divested of its collateral through Ming’s actions and that Ming’s likely profited from that
divestiture, the retention of the inventory would be inequitable absent some form of
compensation. See id. Accordingly, the court concludes that there exists a genuine dispute of material fact as to
whether Go Fresh, via the supermarket inventory over which Ming’s exerted control in April

2023, was unjustly enriched. Defendants’ motion for summary judgment on Lotus’s unjust
enrichment claim is therefore DENIED.
V. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment [Doc. No. 32] is
GRANTED as to Lotus’s breach of contract claim (Count I) and as to Lotus’s claims against
Defendant Deng in his individual capacity. The Motion [Doc. No. 32] is DENIED as to Lotus’s
unjust enrichment claim (Count II) against Go Fresh 365, Inc.
IT IS SO ORDERED.
April 1, 2026 /s/ Indira Talwani
United States District Judge