Kaiser v. Kirchick

• Docket Number: Civil Action No. 21-10590-FDS
• Decision Date: 15 March 2023
• Citation: 662 F.Supp.3d 76
• Parties: Grant KAISER and John Furnish, Plaintiffs, v. William Dean KIRCHICK, and Carol Rudnick Kirchick, individually and as trustees of the 41 Seaview Terrace Real Estate Trust, and Ronald Steven Rudnick, Defendants.
• Court: U.S. District Court — District of Massachusetts

662 F.Supp.3d 76

Grant KAISER and John Furnish, Plaintiffs, v. William Dean KIRCHICK, and Carol Rudnick Kirchick, individuallyand as trustees of the 41 Seaview Terrace Real Estate Trust,and Ronald Steven Rudnick, Defendants.

Civil Action No. 21-10590-FDS

United States District Court, D. Massachusetts

Signed March 15, 2023

Howard M. Cooper, Maria T. Davis, Alycia M. Kennedy, Max D. Stern, Todd & Weld LLP, Boston, MA, for Plaintiffs.

Jeffrey B. Loeb, Professional Corporation, Boston, MA, John A. Donovan, III, Matthew D. Rush, Sloane & Walsh LLP, Boston, MA, Patrick Driscoll, Boyle | Shaughnessy Law PC, Boston, MA, for DefendantsWilliam D. Kirchick, Carol R. Kirchick.

Patrick Driscoll, Megan E. Fitzgerald, Boyle | Shaughnessy Law PC, Boston, MA, for DefendantRonald S. Rudnick.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

SAYLOR, C.J.

This case involves a protracted dispute between neighbors who own vacation properties on Cape Cod.The dispute began with a disagreement about two pear trees on the border between the properties.It has since escalated grossly out of proportion to the actual underlying issues, spawning multiple legal proceedings in multiple courts.

PlaintiffsGrant Kaiser and John Furnish own a property in Chatham, Massachusetts.DefendantsWilliam Dean Kirchick and Carol Rudnick Kirchick own the property next door; the two properties share a private way.Carol's brother, Ronald Rudnick, is a Chatham resident employed in the real-estate business.

In the summer of 2017, the Kirchicks told plaintiffs that two pear trees they had planted in 2008 were obstructing their view.In August 2017, Rudnick began instructing his employees to park a commercial truck in the private way leading to plaintiffs' home in order to pressure them to do something about the trees.Plaintiffs did not take any action in response.

After commissioning a survey of their property, in March 2018 the Kirchicks concluded that plaintiffs' mailbox and a fence were on their property.They proposed that plaintiffs remove the pear trees and grant them a view easement, in exchange for leaving the mailbox and fence in place.That proposal was not accepted.

The dispute quickly escalated.In March 2018, Rudnick submitted an offer to purchase a nearby home that (plaintiffs contend) was accepted by the sellers.Plaintiffs then submitted an offer for $500 more, which was also accepted, and eventually led to the sale of the property to them.

Meanwhile, the pear trees remained in place.At different points, defendants allegedly informed plaintiffs that they would pave over the private way, dig up their bushes, and remove their mailbox and fencing if plaintiffs did not agree to their demands.

In June 2018, plaintiffs obtained Harassment Prevention Orders ("HPOs") against all three defendants.The following month, Rudnick obtained No Trespassing Orders ("NTOs") barring Kaiser from nine commercial properties in Chatham that Rudnick either owned or controlled.Rudnick told one of the business owners that plaintiffs had an active HPO against him, and informed another that the plaintiffs were "going after" him and planned to sue over a staged slip-and-fall accident.

In the summer of 2018, defendants filed two separate lawsuits against plaintiffs in Barnstable Superior Court.In July 2018, the Kirchicks filed a complaint alleging trespass and abuse of process arising out of the HPOs, and sought a declaratory judgment related to the property boundary.That lawsuit was eventually settled.In August 2018, Rudnick filed a complaint alleging tortious interference in the sale of the neighboring property.That lawsuit was voluntarily dismissed.

In July 2018, The Kirchicks applied for a permit to convert two bedrooms into an in-law apartment in their house.Plaintiffs opposed the permit, and the Zoning Board of Appeals denied the request.

Eventually, plaintiffs filed this lawsuit in federal court on April 9, 2021.They allege that defendants had "carefully crafted a multipronged plan of 'attack' " and had "subjected [them] to an unconscionable pattern of harassment, intimidation, defamation, threats, and coercion designed to interfere with Plaintiffs' use and enjoyment of their home and the broader Chatham community."(Amend. Compl. ¶ 1).The complaint alleges violations of the Massachusetts Civil Rights Act, defamation, intentional infliction of emotional distress, civil conspiracy, and abuse of process.Plaintiffs seek damages, fees, and costs, and a permanent injunction against future threats, intimidation, harassment, and coercion.Jurisdiction is based on diversity of citizenship.

Defendants have collectively moved for summary judgment on all counts.They have also moved to strike the statement of additional facts submitted with plaintiffs' opposition to summary judgment.For the reasons set forth below, the motion to strike will be denied, and the motions for summary judgment will be granted in part and denied in part.

I.Background

A.Rule 56.1 Motion to Strike

Before reciting the facts, the court will first address defendants' joint motion to strike.In addition to their opposition memoranda, plaintiffs filed responses to the Kirchicks' and Rudnick's statements of fact, specifying whether each fact was disputed and citing to plaintiffs' exhibits.Plaintiffs also separately filed a "statement of additional material facts in support of their oppositions to defendants' motions for summary judgment," which included 155 additional factual claims with citations to the record.

Defendants allege that plaintiffs' statement of additional facts ("SOAF")"is not concise, contains unsupported accusations, opinions, arguments[,] and legal conclusions, and creates undue burdens on the Defendants and this court" and should be struck in its entirety.(Defs. Mem.at 1).

Local Rule 56.1 requires a party opposing summary judgment to "include a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation."L.R. 56.1."Unless the court orders otherwise, the moving party may file a reply within 14 days after the response is served."Id.

Defendants appear to contend that plaintiffs should not have been permitted to file their own statement of facts without filing a cross-motion for summary judgment.However, Local Rule 56.1 does not clearly prescribe what form a nonmoving party's opposition must take.It does require that the nonmoving party identify which of the moving party's facts are in dispute, with citations to the record to explain the basis for that dispute.See, e.g., Wired Informatics, LLC v. OmniMD, Inc., 2022 WL 623870, at *1(D. Mass.Mar. 3, 2022)("[Non-movant] failed to comply with Local Rule 56.1 when it filed an opposition to [movant's]motion for partial summary judgment, but did not file a counterstatement of material facts . . . or otherwise assist the Court in determining which facts are genuinely in dispute.").Plaintiffs have individually responded to each of defendants' stated facts to identify which are in dispute with citations to the record, and defendants have not objected to the sufficiency of those responses.

Defendants also allege that plaintiffs' 155 paragraphs of additional facts are immaterial, conclusory, inadmissible, and/or not concise.While the SOAF could certainly be more succinct, the length is not unreasonable given that defendants have moved for summary judgment on all five counts in a case dealing with conduct extending back to at least 2017."[D]etermining whether the disputed issues are material" is the court's basic task at summary judgment, and therefore the purported immateriality of the additional facts is not a ground for excluding them from consideration entirely.Brown v. Armstrong, 957 F. Supp. 1293, 1297(D. Mass.1997).To the extent that the additional facts are conclusory or go beyond the task of identifying "material facts of record as to which it is contended that there exists a genuine issue to be tried,"the court will disregard plaintiffs' submissions.L.R. 56.1.And finally, to the extent defendants wish to object that "the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence" under Fed. R. Civ. P. 56(c)(2), defendants have failed to specify the inadmissible statements and the grounds for objection.

Accordingly, the motion to strike will be denied.

B.Factual Background

Except where otherwise noted, the following facts are undisputed.

1.The Parties

Grant Kaiser and John Furnish are a same-sex married couple with a principal residence in Houston, Texas.(Amend. Compl. ¶ 1, 6-7).In 2008, Kaiser and Furnish purchased a property at 39 Seaview Terrace in Chatham, Massachusetts, which they use as a seasonal home.(Pls. Ex. 67;Kaiser Dep.at 65).At the relevant times, Kaiser was a lawyer practicing in Texas.

William Dean Kirchick and his wife, Carol Rudnick Kirchick, have a seasonal home at 41 Seaview Terrace in Chatham, which is adjacent to plaintiffs' property.(C. Kirchick Dep.at 22-24;W. Kirchick Dep.at 13).At the relevant times, William Kirchick was a lawyer practicing in Massachusetts, and Caroline Kirchick was an inactive member of the bar.(Answer¶ 3).

Ronald Steven Rudnick is Carol Kirchick's brother.He is a real estate broker and contractor who owns and/or controls Lighthouse Realty Property Management.(Amend. Compl. ¶ 13-14, 30).

2.The Pear Trees

In 2008, Kaiser and Furnish planted pear trees along the fence line with the Kirchicks' property.(Kaiser Dep.at 285; Kirchick Ex. E).In 2011, Kaiser and Furnish discussed moving one of the pear trees and removing some greenery; William Kirchick responded, "your plans are fine with us."(Pls. Ex. 70;Furnish Dep.at 226).

In the summer of 2017, the Kirchicks became concerned that two remaining mature pear trees were obstructing their view.(C....