Haven Real Estate Grp., LLC v. Bell Atl. Mobile of Mass. Corp.

• Decision Date: 22 February 2017
• Docket Number: Civil Action No. 15–11845–NMG
• Parties: HAVEN REAL ESTATE GROUP, LLC, Plaintiff–Counterclaim Defendant, v. BELL ATLANTIC MOBILE OF MASSACHUSETTS CORPORATION, LTD. d/b/a Verizon Wireless, Defendant–Counterclaim Plaintiff.
• Court: U.S. District Court — District of Massachusetts

236 F.Supp.3d 454

HAVEN REAL ESTATE GROUP, LLC, Plaintiff–Counterclaim Defendant,

v.BELL ATLANTIC MOBILE OF MASSACHUSETTS CORPORATION, LTD. d/b/a Verizon Wireless, Defendant–Counterclaim Plaintiff.

Civil Action No. 15–11845–NMG

United States District Court, D. Massachusetts.

Filed February 22, 2017

Jason W. Carter, Law Office of Thomas Williams & Associates, Somerville, MA, for Plaintiff–CounterClaim Defendant.

Danielle Andrews Long, Robinson & Cole, Boston, MA, for Defendant–Counterclaim Plaintiff.

MEMORANDUM & ORDER

GORTON, J.

This case arises out of a dispute over an electric bill. Plaintiff/counterclaim-defendant, Haven Real Estate Group, LLC ("Haven"), an Illinois limited liability company whose sole member resides in Illinois, leases space to defendant/counterclaim-plaintiff, Bell Atlantic Mobile of Massachusetts Corporation, Ltd. The defendant corporation does business as Verizon Wireless ("Verizon") and is a Bermuda corporation with a principal place of business in Basking Ridge, New Jersey. Both parties allege that the other 1) breached its contractual obligations, 2) was unjustly enriched and 3) engaged in deceptive and unfair trade practices in violation of M.G.L. c. 93A ("Chapter 93A").

Haven's motion to stay and Verizon's motions to strike and for summary judgment are currently pending before the Court. For the reasons that follow, the motion to stay will be denied, the motion to strike will be allowed and the motion for summary judgment will be allowed, in part, and denied, in part.

I. Factual Background

A. The Lease

This case involves property located at 11–21 Lawrence Street in Lawrence, Massachusetts ("the property"). In November, 1995, Verizon's predecessor-in-interest, Cellco Partnership d/b/a Bell Atlantic NYNEX Mobile, entered into a lease with Frank and Rita Palmisano to rent 500 square feet on the eighth floor of the building located on the property and a portion of its rooftop for a cellular communications facility. The lease requires Verizon to

pay for its own power consumption used thirty (30) days after receipt of an invoice from LESSOR ....

In May, 2006, the property was converted into a condominium known as Baystate Building Condominium ("the condominium"). The condominium has two trustees, Baystate on the Common, LLC ("Baystate I") and Baystate on the Common II, LLC ("Baystate II"), and two units. Verizon's cell site base station is in Unit II.

In July, 2007, Baystate II granted a mortgage to Mt. Washington Cooperative Bank ("Mt. Washington"). The security interest included the "Collateral Assignment of Leases and Rents" on the property. In June, 2010, Mt. Washington's successor, East Boston Savings Bank, assigned the mortgage, including the "[l]eases, and the notes and claims secured thereby," to Secured Debts Cartersville, LLC. That LLC, in turn, assigned the mortgage and the interest in leases to Haven in September, 2010. In November, 2010 a certificate of entry for foreclosure was executed on the property and in January, 2011 Haven foreclosed on the property and bought it at auction.

There was also a separate, parallel assignment of Verizon's lease. In September, 2007, Baystate II assigned its lease with Verizon to Capital Group II, LLC. Currently, the lease is assigned to GTP Structures II, LLC ("GTP II").

B. The Dispute Over the Electric Bill

The parties provide different accounts of how the dispute over the outstanding electric bill unfolded. When the predecessor of Verizon's lease began, the property had only one electric meter and the electric company, National Grid, sent its bills directly to the landlord. In Haven's version of events, it began receiving invoices from National Grid in September, 2010 and there was an outstanding electric bill of $20,000 when it foreclosed on the property. Haven noticed that the bills were atypically large and discovered that there were two power lines into the property in 2012. After investigating, it determined that the second line was connected to a Verizon cellular tower on the building's roof. Haven alleges that it presented Verizon with an invoice in June, 2014 and that Verizon failed to pay it within 30 days in violation of the lease.

In Verizon's recounting of the facts, Haven received an electric bill for approximately $150,000 in April, 2014. The invoice stated that there was a "termination notice in effect". Haven refused to pay the invoice and forwarded it to Verizon, even though it purported to be for all of the electricity used at the property, not just Verizon's portion. Verizon then negotiated with National Grid to pay $75,000 (one-half of the balance) in May, 2014 in order to gain time to resolve its dispute with Haven. The following month, Haven sent a second National Grid termination notice to Verizon, again purportedly refusing to pay, and informed Verizon that it was responsible for the entire balance. Verizon paid off the remaining balance of approximately $86,000 in August, 2014.

The parties agree that as of August, 2014, Verizon had paid the outstanding bill for electrical service on the entire property. Furthermore, Haven admits that 1) Verizon actually overpaid the bill by approximately $24,000, 2) National Grid sent the reimbursement to Haven and 3) it kept the reimbursement rather than returning it to Verizon.

In August, 2014, after the electric service invoice had been paid, Verizon installed a separate meter so that it could be directly billed for its use of electricity. Shortly thereafter, Haven sent Verizon a letter asserting that it was entitled to reimbursement of payments it made on behalf of Verizon for electric service dating back to 1995. Haven demanded payment of approximately $1,666,000 but Verizon contends that there is no evidence that Haven paid any such amount for electrical service.

II. Procedural History

In June, 2015, Haven filed an amended complaint. Verizon timely answered and counterclaimed. Each party alleges that the other 1) breached its contractual obligations in the lease, 2) was unjustly enriched and 3) acted unfairly and deceptively in violation of Chapter 93A and requests compensatory and multiple damages and attorneys' fees and costs under Chapter 93A.

In June, 2016, Verizon moved for summary judgment on all claims and counterclaims. Thereafter, Haven filed its opposition to the summary judgment motion and moved for a stay. Verizon later moved to strike portions of the affidavit of Albert Adriani upon which Haven relies in its opposition to summary judgment. This memorandum and order addresses those motions.

III. Motion to Stay

A. Legal Standard

Pursuant to Fed. R. Civ. P. 56(d), if the opponent of summary judgment demonstrates that it is unable to submit facts crucial to its opposition, a court may delay summary judgment or allow supplemental discovery. Extra time under Rule 56(d) is not, however, "to be granted as a matter of course." Troiano v. Aetna Life Ins. Co. , 844 F.3d 35, 45 (1st Cir. 2016) (quoting Hicks v. Johnson , 755 F.3d 738, 743 (1st Cir. 2014) ). A court need not grant Rule 56(d) relief if the party opposing summary judgment is "unlikely to garner useful evidence from supplemental discovery." Id. (quoting Hicks , 755 F.3d at 743 ). Moreover, to be entitled to extra time, the party opposing summary judgment must demonstrate

(i) good cause for his inability to have discovered or marshalled the necessary facts earlier in the proceedings; (ii) a plausible basis for believing that additional facts probably exist and can be retrieved within a reasonable time; and (iii) an explanation of how those facts, if collected, will suffice to defeat the pending summary judgment motion.

Alicea v. Machete Music , 744 F.3d 773, 788 (1st Cir. 2014) (quoting Rivera–Torres v. Rey–Hernandez , 502 F.3d 7, 10 (1st Cir.2007) ).

B. Analysis

Haven moves to stay summary judgment pending completion of discovery on Fed. R. Civ. P. 56(d) grounds. It contends that it timely noticed the Fed. R. Civ. P. 30(b)(6) deposition of Verizon but the deposition was postponed due to mediation and has yet to be completed. Verizon responds that the motion to stay is part of long-running dilatory tactics from Haven. It submits that Haven's counsel never contacted Verizon to reschedule the deposition and has delayed discovery by failing to produce documents and missing deadlines.

Haven has not demonstrated that the prerequisites for relief under Fed. R. Civ. P. 56(d) have been met. Although there was, perhaps, good cause for the initial delay given the imminent mediation, Haven has provided no excuse for its failure to make arrangements to take the deposition after the mediation. See Alicea , 744 F.3d at 788.

Moreover, while the inability to meet one prong of the Rivera–Torres test suffices to defeat Haven's application, it has also failed to show that the information from a Rule 30(b)(6) deposition would defeat summary judgment. Id. Haven asserts that it would collect information about how much Verizon paid for electricity, its method for estimating its average usage and the process of converting to an independent meter. As Verizon aptly points out, however, in order to defeat summary judgment, Haven must demonstrate that it paid Verizon's electric bill and has been damaged because it was not reimbursed. That information would necessarily come from Haven, not Verizon. Accordingly, Haven's motion to stay summary judgment on Rule 56(d) grounds will be denied.

IV. Motion to Strike

A. Legal Standard

"It is settled" that an interested witness cannot generate a factual dispute to prevent summary judgment. Torres v. E.I. Dupont De Nemours & Co. , 219 F.3d 13, 20 (1st Cir. 2000). If a witness attempts to prevent summary judgment by contradicting previous "clear answers to unambiguous questions" without explanation, the latter testimony will be disregarded. Id. (quoting Colantuoni v. Alfred Calcagni & Sons, Inc. , 44 F.3d 1, 4–5 (1st Cir. 1994) ). When evaluating contradictory testimony, courts are

not obliged to accept as true or to deem as a

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