Superior Court of Massachusetts, Suffolk, Business Litigation Session
American Translation Partners, Inc.
Lahey Clinic Hospital, Inc. et al.  Opinion No. 132127
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Edward P. Leibensperger,
This action arises out of an agreement between plaintiff, American Translation Partners, Inc. (" ATP"), and defendant, Lahey Clinic Hospital, Inc. (" Lahey"), whereby ATP provided interpreters to assist medical professionals in their interactions with non-English speaking patients. The agreement contained a non-solicitation provision that ATP claims was breached by Lahey. ATP also claims that Lahey's Administrator of Interpreter services, defendant Ursula Tice-Alarcon, tortiously interfered with ATP's relationship with Lahey. Lahey and Tice-Alarcon move for summary judgment on the principal ground that ATP cannot now, or in the future, prove damages.
ATP and Lahey began their relationship in 2002. ATP provided interpreters to Lahey continually over the approximately twelve years from 2002 to 2014. Effective on April 1, 2010, ATP and Lahey entered into a written Interpreters Contract Staffing Service Agreement (" Service Agreement") that by its terms would renew until April 1, 2013. The Service Agreement was not exclusive, meaning that Lahey was entitled to purchase interpreter services from other providers: " Nothing herein shall be construed as limiting [Lahey's] right to retain interpreter personnel on a permanent or temporary basis through other agencies (other than [ATP's] Interpreters) . . ." Service Agreement, ¶ 11.
Paragraph 3 of the Service Agreement, entitled " Request Procedures; No Hire" contains a provision that may be described as a non-solicitation provision: " [Lahey] shall not, directly or indirectly, solicit, hire nor engage the services of any Interpreter who has performed services for [Lahey] for a period of twenty-four (24) months following completion of such Interpreter's last assignment with [Lahey] from [ATP]."
When the Service Agreement expired by its own terms in April 2012, the parties continued their relationship through an Interim Agreement that extended the terms of the Service Agreement except for some changes to payment terms. When the Interim Agreement expired in the fall of 2013, the parties were negotiating to enter into a new contract. During the negotiations, Lahey continued to purchase services pursuant to the Interim Agreement. The negotiations failed. The last date on which ATP provided interpreter staffing services to Lahey was March 11, 2014.
ATP alleges that certain individual interpreters who had been provided to Lahey by ATP were engaged by Lahey through another services provider, Baystate Interpreters, Inc. (" Baystate"), within 24 months of when the individuals performed work at Lahey through ATP. For example, Gerardo Cruz was placed at Lahey by ATP at various times up to January 2014. Lahey engaged Gerardo Cruz, through Baystate, in the spring of 2013. See Complaint, ¶ s 31 and 32, and Lahey's Answer thereto. Also, Alejandro Horacio Cimardo was placed at Lahey by ATP from February 2013 to May 30, 2013. In June 2013, Cimardo was engaged by Lahey through Baystate. See Complaint, ¶ s 33 and 34, and Lahey's Answer thereto. In April 2014, ATP hired a private investigator who took pictures of interpreters arriving at Lahey. ATP personnel identified six of the interpreters arriving at Lahey as individuals who ATP claims were providing services in violation of the non-solicitation provision.
In answer to an interrogatory requesting that ATP " [i]temize and quantify any and all damages ATP is seeking to recover" ATP responded " [a]t least approximately Two Hundred Two thousand Dollars ($202, 000) for lost revenue." In addition, ATP responded that it is seeking " [a]s yet undetermined" amounts for costs incurred and lost profits. Following that response in November 2014, Lahey took the deposition of an ATP representative, Denise D'Amaddio, on June 23, 2015. In her deposition, D'Ammadio explained that the $202, 000 figure was calculated based solely on the total loss of revenue ATP received from Lahey prior to 2013, compared to the revenue ATP received from Lahey during the period from July 2013 to February 2014.
With respect to ATP's claims of " undetermined" damages, D'Ammadio confirmed that she is responsible at ATP " for most of the economic things that happen." Yet she made no effort to quantify the " undetermined" damages and was not aware of any calculation by anyone else. In response to Lahey's motion for summary judgment, ATP submitted no affidavits or other evidence to support a claim for damages other than D'Ammadio's deposition testimony.
With respect to ATP's claim of improper interference with advantageous relationships, the only evidence submitted by ATP in the Statement of Material Facts is the following. On June 13, 2013, Scott Crystal (from ATP) wrote to a supervisor at Lahey criticizing Dr. Michael Macht-Greenberg for his installation of protocols for new paperwork requirements and asserting that such requirements were compromising patient care. Macht-Greenberg was upset over the letter and did not like the fact that Crystal had sent the letter. Lahey allegedly reduced its demand for services from ATP after this letter although Lahey asserts that it had already begun reducing services from ATP before the letter. With respect to ATP's claim of intentional interference with advantageous relationships by defendant, Tice-Alarcon, the only evidence submitted by ATP in the Statement of Material Facts is that, in her deposition, Tice-Alarcon testified that she viewed ATP as " pimps."
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). The moving party may satisfy this burden either by submitting affirmative evidence negating an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond with evidence of specific facts establishing the existence of a genuine dispute. Pederson, 404 Mass. at 17. An adverse party cannot defeat a motion for summary judgment merely by resting on its pleadings and assertions of disputed facts, rather it must set forth specific facts with affidavits, deposition testimony, answers to interrogatories, or admissions on file showing that there is a genuine issue for trial. Mass.R.Civ.P. 56(c). When deciding a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party, but does not weigh evidence, assess credibility, or find facts. Attorney Gen. v. Bailey, 386 Mass. 367, 370-71, 436 N.E.2d 139 (1982).
ATP's complaint asserts four counts against the moving defendants: Count I--breach of contract against Lahey; Count II--tortious interference with advantageous relationships against Lahey; Count III--violation of G.L.c. 93A against Lahey; Count V--tortious interference with advantageous relationships against Tice-Alarcon.
As to Count I, breach of contract, Lahey makes a weak attempt to argue that ATP failed to offer sufficient evidence of breach of contract. At oral argument, confronted by its admission to the allegations regarding the engagement by Lahey of Cruz and Cinardo, Lahey conceded that there is " arguably" evidence of breach of contract. Lahey then ...