SCOTT PHILLIPS, individually and on behalf of all others similarly situated, Plaintiff, Appellant,
EQUITY RESIDENTIAL MANAGEMENT, L.L.C., Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge]
Pastor, with whom Pastor Law Office LLP, Joshua N. Garick,
Law Office of Joshua N. Garick, Preston W. Leonard, and
Leonard Law Office PC were on brief, for appellant.
M. White, with whom Baker & Hostetler LLP, Thomas H.
Wintner, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. were on brief, for appellee.
Lynch, Stahl, and Barron, Circuit Judges.
dispute arises out of a class action brought by Scott
Phillips against his former landlord, Equity Residential
Management, L.L.C. ("ERM"). Phillips alleged that
ERM violated several provisions of the Massachusetts Security
Deposit Law ("Security Deposit Law"), Mass. Gen.
Laws ch. 186, § 15B, relating to unlawful charges or
deductions taken against his security deposit and ERM's
failure to return the security deposit within thirty days
after he moved out of his leased apartment. The purported
class consisted of other former tenants of ERM-owned or
managed apartments who also, since August 6, 2009, had these
same grievances. As recompense, Phillips sought recovery
under the Security Deposit Law's penalty provision, Mass.
Gen. Laws ch. 186, § 15B(7), which includes, inter alia,
the availability of treble damages.
summary judgment, the district court awarded Phillips a
Pyrrhic victory: though he was entitled to recover his
security deposit (less a small amount of holdover rent), the
district court refused to apply Section 15B(7), and soon
after denied his class certification motion on mootness
grounds. Phillips challenges these rulings on
appeal, arguing that the district court should have ruled on
his class certification motion before the parties'
summary judgment motions, that his class certification motion
should not have been dismissed as moot, and that he was
entitled to recovery under Section 15B(7).
last contention is of particular importance, since the
outcome turns on provisions of the Massachusetts Security
Deposit Law that have not been interpreted by the
Massachusetts Supreme Judicial Court ("SJC") in
over three decades. See Mellor v. Berman, 454 N.E.2d
907, 910-13 (Mass. 1983). Generally, we must make an
"informed prophecy" as to how the highest state
court would rule on questions of that state's law.
Ambrose v. New Eng. Ass'n of Schs. & Colls.,
Inc., 252 F.3d 488, 497-98 (1st Cir. 2001) ("Our
task . . . is to discern the rule the state's highest
court would be most likely to follow under these
circumstances, even if our independent judgment might
differ."). The SJC's guidance in this area, however,
is "sufficiently undeveloped . . . so as to make such
prophetic action unwise, " see Showtime Entm't,
LLC v. Town of Mendon, 769 F.3d 61, 79 (1st Cir. 2014).
For this reason and the others that follow, we certify a
question regarding the relevant provisions of the
Massachusetts Security Deposit Law to the SJC, and refrain
from deciding the merits of Phillips's other claims until
that question is resolved. See Mass. S.J.C. R. 1:03;
see also, e.g., Easthampton Sav. Bank v. City of
Springfield, 736 F.3d 46, 48, 50-53 (1st Cir. 2013).
recite the facts relevant to the certified question. Phillips
and a friend, Sean Ostriker,  entered into a written lease with
ERM for an apartment located at Longview Place in Waltham,
Massachusetts. The lease term lasted from July 20, 2012 to
May 19, 2013. In accordance with the lease, Phillips paid ERM
a $750.00 security deposit prior to move-in, and he requested
its return shortly after vacating the apartment on May 20,
2013. After receiving his request, ERM sent Phillips a signed
Statement of Deposit Account ("SODA") listing
charges against his security deposit totaling
$968.08. The SODA credited $750.06 against this
amount, reflecting Phillips's $750.00 security deposit
and $0.06 in accumulated interest, and claimed a balance due
August 6, 2013, Phillips filed a class action complaint
against ERM in Massachusetts Superior Court. He alleged that
ERM had violated the Security Deposit Law by: (1) not
providing him, within thirty days of his vacating the
apartment, sufficiently detailed written evidence of damages
for which funds were deducted from his security deposit, (2)
not providing him with an itemized list of damages sworn to
under the pains and penalties of perjury, and (3)
impermissibly deducting certain cleaning charges from his
security deposit. ERM removed the case to the United States
District Court for the District of Massachusetts based on
diversity of citizenship, see 28 U.S.C. §
1332(d), and counterclaimed for the $218.02 balance outlined
in the SODA.
after, both Phillips and ERM moved for summary judgment. The
district court found that ERM did not comply with Mass. Gen.
Laws ch. 186, § 15B(4)(iii), which required ERM to
provide Phillips with "an itemized list of damages"
sworn to "under pains and penalties of perjury."
Phillips v. Equity Residential Mgmt., No. 13-12092,
2015 WL 12733438, at *3 (D. Mass. Dec. 14, 2015). This
failure, the court concluded, also resulted in a second
violation under a separate provision of the Security Deposit
Law since Phillips did not receive the required
"itemized list of damages . . . in compliance with the
provisions of [Section 15B]" within thirty days after
the termination of his tenancy. Id. (quoting Mass. Gen.
Laws ch. 186, § 15B(6)(b)). Based on this second
violation, the district court held that ERM forfeited its
right to retain any part of Phillips's security deposit.
Id.; see also Mass. Gen. Laws ch. 186,
§ 15B(6) (stating that a lessor "shall forfeit
[the] right to retain any portion of [a tenant's]
security deposit for any reason" if the lessor violates
any provision of Section 15B(6)).
nonetheless insisted that ERM's Section 15B(6)(b)
violation resulted in a third Security Deposit Law violation
under Mass. Gen. Laws ch. 186, § 15B(6)(e). That
provision provides that a lessor must "return to the
tenant the security deposit or balance thereof to which the
tenant is entitled after deducting therefrom any sums in
accordance with the provisions of this section, together with
any interest thereon, within thirty days after termination of
the tenancy." Id.
alleged Section 15B(6)(e) violation, Phillips continued,
activated yet another Security Deposit Law provision, Mass.
Gen. Laws ch. 186, § 15B(7). Section 15B(7) awards
tenants "three times the amount of [their] security
deposit or balance thereof to which the tenant is entitled
plus interest at the rate of five per cent from the date when
such payment became due, together with court costs and
reasonable attorney's fees" if the lessor or his
agent fails to comply with clauses (a), (d), or (e) of
Section 15B(6). Id.
district court, however, refused to entertain Phillips's
argument, finding that ERM only violated Section 15B(6)(e)
because of its violation of Section 15B(6)(b).
Phillips, 2015 WL 12733438, at *4. Under
Phillips's reading of the statute, the court reasoned,
any violation of Section 15B(6)(b) would result in a
violation of Section 15B(6)(e), making Section 15B(6)(b)
redundant. Id. Since Section 15B(6)(b) is not listed
in Section 15B(7), the district court also inferred that
Section 15B(6)(b) was excluded from ...