United States District Court, D. Massachusetts
JOSEPH SCOTT, individually and as Trustee of RYDAN PARK MASTER TRUST, Plaintiffs,
RESTAURANT TECHNOLOGIES, INC., Defedents.
MEMORANDUM & ORDER
INDIRA TALWANI, District Judge.
This case involves allegations by Plaintiffs that Defendant Restaurant Technologies, Inc. ("Restaurant Tech"), upon vacating its leased commercial premises, left behind cooking oil residue, staining, and spillage so extensive as to render the premises uninhabitable. Restaurant Tech denies any liability for the alleged damage and brings a third-party complaint for indemnification and contribution against its neighboring tenants, claiming that these tenants created or contributed to the damage to the premises' exterior.
Two neighboring tenants, IBA Molecular North America, Inc. ("IBA") and Atkinson Carpet Installation Company, Inc. ("Atkinson"), now move to dismiss Restaurant Tech's thirdparty complaint. See Mot. Dismiss Am. Third-Party Compl. [#22]; Mot. Dismiss Am. Third-Party Compl. [#29]. Restaurant Tech seeks to amend its third-party complaint to join another tenant, Frageo Enterprises, LLC ("Frageo"). See Mot. Leave File & Serve Second Am. Third-Party Compl. Add Frageo Enterprises, LLC Third-Party Def. [#38].
For the reasons set forth below, IBA and Atkinson's motions to dismiss are ALLOWED, Restaurant Tech's motion to amend is DENIED as futile, and the third-party complaint is DISMISSED without prejudice.
A. Motions to Dismiss the Third-Party Complaint
1. Factual Allegations
Plaintiffs allege waste, trespass, and breach of lease by Restaurant Tech for damages to the interior and exterior of Restaurant Tech's leased premises. See Am. Third-Party Compl., Ex. A [#18-1] [hereinafter Pls.' Compl.]. As related to the exterior of the premises, Plaintiffs allege that Restaurant Tech, which stores and transports used cooking oil as part of its business operations, caused oil staining to the premises' exterior southwestern wall, rear exit stairwell, northwestern entrance stairwell, loading dock area, and adjacent asphalt. Id. ¶¶ 9, 30(g-h). Plaintiffs further allege that Restaurant Tech was responsible for a spill of fifty to seventy-five gallons of cooking oil which caused dark soil staining along the southwestern and western edges of the leased premises. Id. ¶¶ 33-34. Soil samples from this area, which is generally downhill from the location of the spill, tested positive for a high concentration of fats, greases, and oils ("FOG"). Id. ¶¶ 38-44.
Restaurant Tech alleges that Atkinson and IBA "have either spilled or disposed of on or in the Common Areas [of the premises], material waste including but not necessarily limited to adhesive, lubricant, petroleum, chemical[, ] and other wastes." Am. Third-Party Compl. ¶ 11 [#18]. According to Restaurant Tech, this disposal and spillage has caused or contributed to the FOG concentrations found in the soil adjacent to the premises. Id. Restaurant Tech further alleges that Atkinson and IBA have used "various types of trucks and other vehicles" that have left oil and other wastes causing or contributing to the FOG concentration. Id. ¶ 12.
Absent an express or implied contractual agreement by one party to indemnify another, see Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Authority, 693 F.2d 1, 2 (1st Cir. 1982) (explaining contractual indemnification), indemnification is available only where a party "who is without fault... [is] compelled by operation of law to defend himself against the wrongful act of another." Elias v. Unisys Corp., 573 N.E.2d 946, 948 (Mass. 1991); see also Westfield v. Mayo, 122 Mass. 100, 1009 (1877) ("[Indemnification is available where] a party is obliged to defend against the act of another... and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own...."). "This right to indemnity is limited to those cases in which the would-be indemnitee is held derivatively or vicariously liable for the wrongful act of another." Decker v. Black & Decker Mfg. Co., 449 N.E.2d 641, 645 (Mass. 1983); see also Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 479 N.E.2d 1386, 1388 (Mass. 1985).
Restaurant Tech does not allege the existence of any express or implied contractual relationship giving rise to a right to indemnification. Moreover, Restaurant Tech's third-party complaint is silent as to any other relationship between it and the third-party defendants that would create derivative or vicarious liability. See Chapman v. Bernard's Inc., 198 F.R.D. 575, 579 (D. Mass. 2001) ("Bernard's is not an agent of [the co-defendant], nor does it have a relationship with that co-defendant from which it could be held vicariously or derivatively liable.... Accordingly, Bernard's is not entitled to indemnification...."); Slocum v. Bonahue, 693 N.E.2d 179, 182-83 (Mass.App.Ct. 1998) (rejecting a claim for indemnification brought against a motor vehicle manufacturer by a driver who caused the death of a minor because "[u]nder no set of circumstances could the jury properly have held the [driver] liable... for the conduct of Ford"). If Restaurant Tech proves at trial that the oil damage was caused by some other party, or a substance other than cooking oil, "this will constitute an absolute defense to [Plaintiffs'] main action." Decker, 449 N.E.2d at 41. In contrast, if Restaurant Tech is found liable, that liability will be based on its own tortious conduct or breach of lease. In neither case, however, will liability be of a derivative or vicarious nature based on the acts of IBA or Atkinson. Id.
Restaurant Tech argues that its lease allows it to be held contractually liable to Plaintiffs for damages to the exterior of the premises even if those damages were caused by tortious acts of IBA or Atkinson. This argument fails for two reasons. First, the argument ignores the lease's express language, which states that Restaurant Tech may be held responsible for harm to the "parking areas plus any stairs, walkways or other common areas... to the extent that they are utilized by Lessee, or Lessee's employees, visitors or business invites [sic]." See Compl., Ex. 1 ¶ 18 (emphasis added). As stated above, the third-party complaint contains no allegations that IBA or Atkinson had any special relationship, including that of employee, visitor, or business invitee, with Restaurant Tech. Accordingly, Restaurant Tech has failed to plead a plausible basis for finding that it might be held contractually liable for alleged harm by IBA or Atkinson to the premises' common areas. Second, even if Restaurant Tech did have a ...