United States District Court, D. Massachusetts
JUDITH M. HAYES AND THOMAS F. HAYES, Plaintiffs,
CRGE FOXBOROUGH, LLC d/b/a TOBY KEITH’S I LOVE THIS BAR & GRILL, Defendant/Third-Party Plaintiff,
LINDSAY LAMPASONA, LLC, STERLING CONSTRUCTION SERVICES, LLC, and BALDINGER ARCHITECTURAL STUDIO, INC., Third-Party Defendants.
MEMORANDUM AND ORDER
Denise J. Casper United States District Judge
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”). 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 Sánchez 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 (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 (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). 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”)pursuant to which Capri acted on behalf of CRGE as the construction manager for the building of Toby Keith’s. 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.
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, 136 S.Ct. 535 (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). 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.
On April 14, 2015, Mark Bodner, original counsel for CRGE, filed a motion to withdraw appearance as counsel. D. 94. The Court granted the motion to withdraw and instructed CRGE to obtain successor counsel and/or file a status report with the Court regarding its efforts by July 20, 2015. D. 105. The Court instructed that if CRGE failed to comply with its order “the other parties may file motions seeking default or other appropriate relief.” Id. at 4. The deadline passed without CRGE filing a status report with the Court. On July 29, 2015, Hayes filed a motion for default judgment. D. 111.
Although the Court does not condone CRGE’s failure to update the Court on the status of its counsel as ordered, CRGE’s misconduct, under circumstances here, does not meet the high standard for a default judgment. CRGE asserts that the deadline from the Court’s order was not entered on its office calendar due to the inadvertence. D. 116 at 2. CRGE further explains that at the time it was adjusting to the unexpected insolvency of its insurer and adapting to managing its own litigation defense. Id. Simultaneously, CRGE was managing the closing of several Toby Keith’s restaurants in other states. Id. at 2-3. Finally, CRGE explains that its vice president, Gregory McClure, was preoccupied at the time with the serious family illnesses. Id.
These circumstances, collectively, counsel against entry of default, see, e.g., Companion Health Servs., Inc., 675 F.3d at 85 (holding that default sanction was improper where the defendants’ single instance of misconduct occurred while they were unrepresented and unaware of the deadline) as does the fact that Hayes’ motion for default judgment rests exclusively upon CRGE’s single instance of failing to comply with the Court’s order. See, e.g., Crossman, 316 F.3d at 39 (reversing dismissal that was based exclusively upon a single instance in which counsel inadvertently failed to appear at an initial scheduling conference); cf. AngioDynamics, Inc., 780 F.3d at 435 (affirming entry of default judgment where the “[d]efendants’ conduct . . . was severe, repeated, and deliberate, with no legitimate or mitigating explanation for noncompliance”). Furthermore, Hayes has not alleged any specific way in which she has been prejudiced by CRGE’s delay. CRGE has now re-engaged counsel and is prepared to proceed with the litigation, as evidenced by the various motions and oppositions it has now filed. D. 116 at 1. For all of these reasons, the Court denies Hayes’ motion for entry of default judgment.
B. Hayes’ Motion to Attach CRGE’s Property Is Denied
1. Burden of Proof
Hayes seeks to attach CRGE’s property in the amount of one million dollars. D. 150. The parties agree that the attachment of real property is governed by state law, specifically Mass. R. Civ. P. 4.1. D. 150 at 2; D. 152 at 2. A prejudgment attachment “authoriz[es] the seizure of the real and personal property of the defendant to be held as security for any judgment the plaintiff may recover in the action.” Mullane v. Chambers, 333 F.3d 322, 329 (1st Cir. 2003). A plaintiff seeking prejudgment attachment must demonstrate (1) a reasonable likelihood of success on the merits and (2) a reasonable likelihood of recovering judgment equal to or greater than the amount of the attachment sought over and above any liability insurance shown by defendant to be available to satisfy judgment. Mass. R. Civ. P. 4.1; see Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, Shopmen’s Local Union 501 v. Burtman Iron Works, Inc., 164 F.R.D. 305, 306 (D. Mass. 1995). Thus, courts consider whether the moving party is “likely to prevail on the merits and obtain damages in the necessary amount.” Nat’l Ass’n of Gov’t Emp., Inc. v. Nat’l Emergency Med. Servs. Ass’n, Inc., 13-cv-10854-JLT, 2013 WL 3563528, at *3 (D. Mass. July 10, 2013) (internal quotation marks omitted) (citing Aetna Cas. & Sur. Co. v. Rodco Autobody, 138 F.R.D. 328, 332 (D. Mass. 1991)). The burden belongs to the moving party, who “must set forth with specificity the underlying facts in support of the attachment.” Aetna, 138 F.R.D. at 340.
To prevail on her negligence claim, Hayes must prove that CRGE owed Hayes a duty of care, that CRGE breached its duty and that the breach caused Hayes to suffer injury. See Jupin v. Kask, 447 Mass. 141, 146 (2006). To prevail on her Mass. Gen. L. c. 143 § 51 strict liability claim, Hayes must establish that her alleged injury was caused by building conditions that violated the provisions of Mass. Gen. L. c. 143, § 51 and the Massachusetts State Building Code. See Sheehan v. Weaver, 467 Mass. 734, 735 (2014). As Hayes’ Mass. Gen. L. c. 93A claim is based upon a violation of Mass. Gen. L. c. 143 § 51, it requires the same showing. In light of these standards, the record does not demonstrate that Hayes has a reasonable likelihood of success sufficient to warrant attachment, particularly where significant factual disputes remain as to whether a defect in the stairs contributed to Hayes’ fall and which conditions contributed to her fall.
2. The Factual Dispute as to How Hayes Fell Precludes Attachment
Hayes alleges that a defect in the stairs at Toby Keith’s caused her fall. D. 1 ¶¶ 34-35, 46-48. Hayes points to her expert reports to support her assertion that her fall was the result of CRGE’s negligence and failure to comply with Mass. Gen. L c. 143 § 151.Id. ¶¶ 16-17. Specifically, Hayes’ expert architect, David Cowen (“Cowen”), opines that “[t]he edges of the stair treads were not reasonably conspicuous” and “[t]he stair had an excessive variation in riser height between the top riser and the next riser down.” D. 112-5 at 7. Hayes’ expert reports, however, fail to overcome the central factual dispute in this litigation: how Hayes fell and the cause of the fall. Deposition testimony reveals contradictory accounts of Hayes’ fall.
According to Hayes, on the night of March 31, 2012, as she was leaving the second floor of Toby Keith’s, she secured her right hand to the handrail on the right side of the stairs while she was still on the stairway platform above the first step of the stairs. D. 112 at 5. She was carrying a box of dinner leftovers in her left hand. Id. She testified at deposition that she placed her right foot on the first stair. Id. at 5-6. She further testified that when she attempted to place her left foot on a second step, with her right hand still secured to the right side handrail, she fell forward, front first and landed at the base of the stairway directly on her left hip area. Id. at 6. According to Hayes, she did not trip on anything and her knee did not buckle. Id. at 7.
CRGE denies that any alleged defect in the stairs caused Hayes to fall. D. 116 at 5. In addition to contending that Hayes’ account of her fall has been inconsistent, D. 152 at 7, CRGE stresses that the sole eyewitness to the fall, Hayes’ dinner companion, John Williams (“Williams”), offered deposition testimony that contradicts Hayes’ account. Williams testified that he was standing about two or three feet behind Hayes at the time she fell. D. 112-12 at 24, 27. According to Williams, Hayes was on the left hand side of the middle railing as Hayes was “c[oming] down” the stairs. Id. at 24-25. Williams denied that Hayes had taken any steps from the top landing before she fell. Id. at 26. Instead, according to Williams, it looked like Hayes “didn’t realize the steps were there” and “just went down.” Id. He testified “I think she realized a split second too late that there were stairs.” Id. at 27. Williams also testified that “[w]hen [Hayes’] foot went, she tried to grab the railing, and that’s when she tumbled.” Id. at 26. According to Williams, Hayes “went right from the top landing down to the bottom.” Id. Williams testified that Hayes reached out for the middle railing but was never able to grab it. Id. at 25. Williams further testified that Hayes landed on her right side. Id. at 29. Finally, Williams ...