Superior Court of Massachusetts, Suffolk, Business Litigation Session
June 28, 2016
MEMORANDUM AND ORDER ALLOWING DEFENDANTS' MOTION
Kenneth W. Salinger, Justice
the Massachusetts Water Resources Authority entered into a
25-year contract with Harbor Electric Energy Company ("
Harbor Electric") and the Boston Edison Company ("
NSTAR") for the installation and operation of facilities
to transmit electricity through a power cable buried under
Boston Harbor to the MWRA's new wastewater treatment
facilities on Deer Island.
MWRA seeks a declaration (in Count I of its amended
complaint) that, if Boston Harbor were dredged to deepen
shipping channels and if as a result the Deer Island power
cable had to be protected (for example through the placement
of concrete mats over the cable), the MWRA would have no
financial liability for those cable protection costs under
the 1990 contract. Counts II and III of the amended complaint
claim that (1) Harbor Electric and NSTAR have breached the
1990 contract by failing to seek a tariff rate schedule from
the Federal Energy Regulatory Commission (" FERC")
to govern cable operating costs for the period after the
contract expired, and instead seeking a tariff from the
Massachusetts Department of Public Utilities ("
DPU"), and (2) defendants intend to breach the 1990
contract by trying to impose future cable protection costs on
the MWRA. Count IV asserts that Defendants have violated
G.L.c. 93A by deliberately breaching the 1990 contract,
including by failing to negotiate a successor agreement and
by filing its tariff petition with the DPU instead of with
Energy and NSTAR move to dismiss all claims against them. The
Court concludes that the amended complaint alleges no facts
plausibly suggesting that the MWRA is entitled to relief
under any of its causes of action. It will therefore allow
the motion and dismiss this action without prejudice.
claim for declaratory relief in Count I fails because there
is no actual controversy between the parties. See
Alliance, AFSME/SEUI AFL-CIO v. Commonwealth, 425
Mass. 534, 537-39, 682 N.E.2d 607 (1997). The MWRA does not
allege that Defendants have ever billed the MWRA for any
cable protection costs, or even that Defendants have incurred
any cable protection costs that they seek to recover from the
MWRA. In opposing the motion to dismiss, the MWRA points to
an August 2004 letter in which a lawyer for Harbor Electric
and Boston Edison took the position that the MWRA would be
obligated under the 1990 contract to pay any cable protection
costs made necessary by any future harbor dredging, and a
June 2005 letter in which a lawyer for the MWRA disagreed.
But the MWRA alleges no facts suggesting that Defendants have
done anything since June 2005 to try to force MWRA to pay any
costs for protecting the cable from future dredging. Thus, at
most, the MWRA's allegations plausibly suggest that the
parties read their 1990 contract differently. Disputes over
how to read a statute or contract, " by themselves, do
not rise to the level of actual controversy."
Entergy Nuclear Generation Co. v. Department of
Envt'l Prot., 459 Mass. 319, 325, 944 N.E.2d 1027
(2011), quoting Woods Hole, Martha's Vineyard &
Nantucket S.S. Auth. v. Martha's Vineyard
Comm'n, 380 Mass. 785, 792, 405 N.E.2d 961 (1980).
The Court may not construe a contract, legal instrument, or
statute in the abstract and render a declaratory judgment in
the absence of some actual controversy that would be resolved
by that judgment. See, e.g., Quincy City Hosp. v. Rate
Setting Comm'n, 406 Mass. 431, 439, 548 N.E.2d 869
(1990); Commissioner of Correction v. Ferguson, 383
Mass. 651, 653, 421 N.E.2d 444 (1981).
contract claims in Counts II and III should be dismissed for
several reasons. First, the Court takes judicial notice that
on May 5, 2016, the DPU issued an order in the ongoing
proceeding regarding Harbor Energy's tariff filing with
respect to future cable operating costs. In that order the
DPU ruled that it had and would exercise primary jurisdiction
to determine whether Harbor Energy was required under the
1990 contract to file its tariff with FERC rather than with
the DPU. The DPU declined to dismiss Harbor Energy's
tariff filing on this ground and stated that it would make a
final decision on whether the Harbor Energy facilities are
transmission facilities subject to FERC's jurisdiction,
rather than local distribution facilities subject to the
DPU's decision, in its final order. The Court exercises
its discretion to defer to the DPU's primary jurisdiction
over this issue, and will therefore dismiss this portion of
the complaint without prejudice. See, e.g., Lumbermens
Mut. Cas. Co. v. Workers' Comp. Trust Fund, 88
Mass.App.Ct. 183, 187-88, 36 N.E.3d 594 (2015).
the MWRA may not sue for breach of contract on the ground
that Defendants have threatened to violate the 1990 contract
at some unspecified time in the future by billing the MWRA
for cable protection costs that Defendants have not yet
incurred. See generally Cavanagh v. Cavanagh, 33
Mass.App.Ct. 240, 243, 598 N.E.2d 677 (1992), rev. denied,
413 Mass. 1107, 602 N.E.2d 1094 (1992) (" Massachusetts
has not generally recognized the doctrine of anticipatory
repudiation, which permits a party to a contract to bring an
action for damages prior to the time performance is due if
the other party repudiates").
to Count IV, the allegations of the amended complaint do not
plausibly suggest that Defendants have committed any unfair
or deceptive acts in violation of G.L.c. 93A. Defendants'
failure to negotiate a successor agreement, to cover future
cable operating costs after expiration of the 1990 contract,
cannot constitute a breach of c. 93A in the absence of
reasonable and detrimental reliance on the other side, which
is not alleged here. See Lambert v. Fleet Nat'l
Bank, 449 Mass. 119, 127, 865 N.E.2d 1091 (2007).
Defendants' decision to seek a tariff from the DPU rather
than FERC, as noted above the Court is exercising its
discretion to defer to the DPU's primary jurisdiction
over that issue. In any case, even if the MWRA could prove
that Defendants deliberately breached the 1990 contract by
seeking a tariff from the DPU rather than from FERC, that
would not plausibly suggest that Defendants violated c. 93A.
" [T]he mere breach of a contract, without more, does
not amount to a c. 93A violation." Madan v. Royal
Indem. Co., 26 Mass.App.Ct. 756, 762, 532 N.E.2d 1214
(1989); accord, e.g., Framingham Auto Sales, Inc. v.
Workers' Credit Union, 41 Mass.App.Ct. 416, 418, 671
N.E.2d 963 (1996). A breach of contract would only violate c.
93A if " the nature, purpose, and effect of the
challenged conduct is coercive or extortionate."
Diamond Crystal Brands, Inc. v. Backleaf, LLC, 60
Mass.App.Ct. 502, 507, 803 N.E.2d 744 (2004); accord, e.g.,
Zabin v. Picciotto, 73 Mass.App.Ct. 141, 169, 896
N.E.2d 937 (2008), rev. denied, 453 Mass. 1103, 901 N.E.2d
138, 453 Mass. 1105, 902 N.E.2d 947 (2009). " In the
absence of conduct having that quality, a failure to perform
obligations under a written lease, even though deliberate and
for reasons of self-interest, does not" violate c. 93A.
Atkinson v. Rosenthal, 33 Mass.App.Ct. 219, 226, 598
N.E.2d 666 (1992) (tenant deliberately abandoned and thereby
violated commercial lease); accord Kobayashi v. Orion
Ventures, Inc., 42 Mass.App.Ct. 492, 505, 678 N.E.2d
180, rev. denied, 425 Mass. 1102, 680 N.E.2d 101 (1997)
(landlord's breach of non-competition clause did not
violate c. 93A, as plaintiff presented no evidence that
landlord violated lease " to gain an economic
advantage" over tenant " or to extort a
concession"). The MWRA has not alleged any facts
plausibly suggesting that Defendants' purported breach of
contract rises to the level of a c. 93A violation.
motion to dismiss Plaintiff's first amended complaint is
ALLOWED. Final judgment shall enter ...