Hayes v. Crge Foxborough, LLC

• Decision Date: 08 March 2016
• Docket Number: Civil Action No. 13-cv-12014-DJC
• Citation: 167 F.Supp.3d 229
• Court: U.S. District Court — District of Massachusetts
• Parties: Judith M. Hayes and Thomas F. Hayes, Plaintiffs, v. CRGE Foxborough, LLC d/b/a Toby Keith's I Love This Bar & Grill, Defendant/Third-Party Plaintiff, v. Lindsay Lampasona, LLC, Sterling Construction Services, LLC, and Baldinger Architectural Studio, Inc., Third-Party Defendants.

167 F.Supp.3d 229

Judith M. Hayes and Thomas F. Hayes, Plaintiffs,

v.CRGE Foxborough, LLC d/b/a Toby Keith's I Love This Bar & Grill, Defendant/Third-Party Plaintiff,

v.Lindsay Lampasona, LLC, Sterling Construction Services, LLC, and Baldinger Architectural Studio, Inc., Third-Party Defendants.

Civil Action No. 13-cv-12014-DJC

United States District Court, D. Massachusetts.

Signed March 8, 2016

Christopher M. Perry, Brendan J. Perry & Associates, P.C., Holliston, MA, for Plaintiffs.

Mark S. Bodner, Melick & Porter, LLP, Boston, MA, for Defendant/Third-Party Plaintiff.

Scarlett M. Rajbanshi, Michael J. Stone, Peabody & Arnold LLP, Boston, MA, Sean C. Joanis, Law Office of Richard G. Whalen, Warwick, RI, for Third-Party Defendants.

MEMORANDUM AND ORDER

CASPER

, United States District Judge

I. Introduction

Plaintiff Judith M. Hayes (“Hayes”) has filed this lawsuit against CRGE Foxborough, LLC (“CRGE”) alleging negligence, strict liability under Mass. Gen. L. c. 143 § 51

and violation of Mass. Gen. L. c. 93A related to Hayes' alleged fall at Toby Keith's I Love This Bar and Grill (“Toby Keith's”).¹ D. 1. CRGE has in turn sued Baldinger Architectural Studio, Inc. (“Baldinger”) for breach of contract and contribution; Sterling Construction Services, LLC (“Sterling”) for breach of contract and contribution; and Lindsay Lampasona, LLC (“Lampasona”) for contribution. D. 11. Baldinger filed a cross claim against Sterling for contractual indemnification. D. 74. Now before the Court are several motions. Hayes has moved for entry of default judgment against CRGE, D. 111, and for authority to attach CRGE's property in the amount of one million dollars. D. 150. CRGE moves to amend its third party complaint. D. 133. Sterling moves for summary judgment on CRGE's claim against Sterling. D. 119. In its summary judgment motions, Baldinger asks the Court to dismiss CRGE's claims against Baldinger, D. 120, and award relief on Baldinger's claim against Sterling. D. 125. For the reasons stated below, the Court DENIES Hayes' motion for entry of default judgment, DENIES Hayes' motion to attach, ALLOWS in part and DENIES in part CRGE's motion to amend its complaint, DENIES Sterling's motion for summary judgment and ALLOWS in part and DENIES in part Baldinger's motions for summary judgment.

II. Standard of Review

Summary judgment is appropriate where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)

. A material fact “carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal quotation mark omitted) (quoting S a nchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) ). “[The] party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact.” Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.2000) ; see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party has met its burden, the non-moving party may not rest upon the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

, but “must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir.2010) (internal citations omitted). “As a general rule, that requires the production of evidence that is ‘significant[ly] probative.’ ” Id.(alteration in original) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ). In this analysis, the Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009).

III. Factual Background

Unless otherwise noted, the following facts are undisputed and drawn from Baldinger and CRGE's Joint Statement of Material Facts, D. 151, and Sterling's responses to Baldinger's Statement of Facts. D. 139. On Saturday, March 31, 2012, Hayes met four friends—John Williams (“Williams”), Jean D'Amato, Richard D'Amato and Donna Williams—for dinner at Toby Keith's in Foxborough. D. 139 ¶ 1; D. 151 ¶ 1. As the group was eating, the lights were turned down for the live entertainment of a band. D. 139 ¶ 2; D. 151 ¶ 2. At approximately 9:30 p.m., the group sought to exit the restaurant and proceeded to the staircase near their table. D. 139 ¶ 3; D. 151 ¶ 3. Hayes testified that the stairs were crowded with patrons. D. 139 ¶ 4; D. 151 ¶ 4. Although the parties contest the manner in which Hayes fell, it is undisputed that she fell on the stairs. D. 139 ¶ 5; D. 151 ¶ 5. Hayes alleges that when she fell on the stairs, she fractured her hip. D. 151 ¶ 5. Hayes alleges that the stairs were “unsafe” and the lights near the stairs did not meet the minimum level of illumination, both in violation of the Massachusetts State Building Code. Id.¶¶ 6-7. Hayes further alleges that the defect in the stairs and the low lighting caused her fall. Id.

CRGE is the owner and operator of Toby Keith's. D. 1 ¶ 18; D. 7 ¶ 18. The process of building Toby Keith's occurred during or around 2010. D. 139 ¶ 9; D. 151 ¶ 8. Each of the three third-party defendants served a distinct role in that construction process. According to CRGE, there was a management agreement between CRGE and Capri Concepts, LLC (“Capri”)² pursuant to which Capri acted on behalf of CRGE as the construction manager for the building of Toby Keith's.³ D. 151 ¶ 29. It is undisputed that Capri entered into contracts with Sterling and Baldinger related to the construction of Toby Keith's. Pursuant to a contract between Capri and Baldinger, Baldinger provided architectural design services for the construction of Toby Keith's. D. 151 ¶¶ 8, 28. Pursuant to a contract between Sterling and Capri, Sterling served, at least for a period, as the general contractor for the construction of Toby Keith's. D. 139 ¶ 13; D. 151 ¶¶ 9, 28. Sterling, in turn, contracted with Lampasona pursuant to which Lampasona served as the subcontractor responsible for constructing the stairs where Hayes' accident took place. D. 139 ¶ 15; D. 151 ¶ 10.

IV. Procedural History

Hayes instituted this action on August 21, 2013. D. 1. She asserted negligence, strict liability and Mass. Gen. L. c. 93A claims against CRGE. Id. On October 17, 2013, CRGE filed a third party complaint asserting claims against Lampasona, Baldinger and Sterling. D. 11. On November 26, 2014, Sterling filed a cross claim against Lampasona. D. 73. That same day, Baldinger filed a cross claim against Sterling. D. 74.

Hayes moves for an entry of default judgment against CRGE, D. 111, and to attach CRGE's property in the amount of one million dollars. D. 150. CRGE seeks to amend its third party complaint. D. 133. Sterling moves for summary judgment on CRGE's breach of contract claim against Sterling (Count III of CRGE's third party complaint). D. 119. In its summary judgment motions, Baldinger asks the Court to dismiss CRGE's contribution claim (Count IV of CRGE's third party complaint) and breach of contract claim against it (Count V of CRGE's third party complaint). D. 120. Baldinger also asks the Court to award relief on Baldinger's claim against Sterling for contractual indemnification (Count I of Baldinger's cross claim). D. 125. The Court heard the parties on the pending motions and took these matters under advisement.

V. Discussion

A. Hayes' Request for Default Judgment Is Denied

Hayes seeks default judgment against CRGE based upon CRGE's failure to comply with the Court's June 18, 2015 order. D. 111. In seeking a default judgment against CRGE, Hayes attempts to rely upon Fed. R. Civ. P. 55(b)(2)(B)

. This rule, however, governs when the Court has already determined that the entry of default is warranted. See AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429, 436 (1st Cir.)cert. denied,––– U.S. ––––, 136 S.Ct. 535, 193 L.Ed.2d 427 (2015) (invoking Rule 55(b) to determine whether the court had properly awarded damages only after separately determining that default was appropriate). Hayes' request for default judgment is more appropriately assessed under Fed. R. Civ. P. 16(f)(1)(C).⁴ Rule 16(f) grants courts the authority to issue an array of sanctions against parties who fail to obey a pretrial court order. The sanctions permitted for a violation of a pretrial court order are set out in Fed. R. Civ. P. 37 (b)(2)(A)(ii)-(vii). The more severe of those sanctions are dismissal or default judgment.

Pursuant to Rule 16(f)

, “[t]rial courts have broad authority to manage their dockets, including the ability to sanction attorneys or to dismiss cases for counsel's failure to comply with pre-trial orders.” Crossman v. Raytheon Long Term Disability Plan, 316 F.3d 36, 38 (1st Cir.2002). Nonetheless, “the district court's power to discipline is not without limit.” Id. at 38. Courts recognize that dismissal, a penalty comparable in its severity to default judgment, is a “harsh penalty.” Id. at 39. It is typically only the repeated and willful violation of court orders that justifies such sanction. See Sec. & Exchange Comm'n v. Interinvest Corp., Inc., No. 15–cv–12350–MLW, 2015 WL 7428540, at *2 (D.Mass. Nov. 18, 2015) (citing Mulero – Abreu v. Puerto Rico, 675 F.3d 88, 89 (1st Cir.2012) and Damiani v. Rhode Island Hospital, 704 F.2d 12, 16 (1st Cir.1983) ). “A single instance of prohibited conduct cannot be a basis for dismissal if the conduct was not ‘particularly egregious or extreme.’ ” Crossman, 316 F.3d at 39

(quoting Top Entertainment, Inc. v. Ortega, 285 F.3d 115, 118 (1st Cir.2002) ). Moreover, mitigating explanations for the party's noncompliance is a factor that counsels against such penalty. See AngioDynamics, Inc., 780 F.3d at 435.

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