United States District Court, D. Massachusetts
HAVEN REAL ESTATE GROUP, LLC, Plaintiff-Counterclaim Defendant,
BELL ATLANTIC MOBILE OF MASSACHUSETTS CORPORATION, LTD. d/b/a VERIZON WIRELESS, Defendant-Counterclaim Plaintiff.
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
case arises out of a dispute over an electric bill.
Plaintiff/counterclaim-defendant, Haven Real Estate Group,
LLC (“Haven”), an Illinois limited liability
company whose sole member resides in Illinois, leases space
to defendant/counterclaim-plaintiff, Bell Atlantic Mobile of
Massachusetts Corporation, Ltd. The defendant corporation
does business as Verizon Wireless (“Verizon”) and
is a Bermuda corporation with a principal place of business
in Basking Ridge, New Jersey. Both parties allege that the
other 1) breached its contractual obligations, 2) was
unjustly enriched and 3) engaged in deceptive and unfair
trade practices in violation of M.G.L. c. 93A (“Chapter
motion to stay and Verizon's motions to strike and for
summary judgment are currently pending before the Court. For
the reasons that follow, the motion to stay will be denied,
the motion to strike will be allowed and the motion for
summary judgment will be allowed, in part, and denied, in
case involves property located at 11-21 Lawrence Street in
Lawrence, Massachusetts (“the property”). In
November, 1995, Verizon's predecessor-in-interest, Cellco
Partnership d/b/a Bell Atlantic NYNEX Mobile, entered into a
lease with Frank and Rita Palmisano to rent 500 square feet
on the eighth floor of the building located on the property
and a portion of its rooftop for a cellular communications
facility. The lease requires Verizon to
pay for its own power consumption used thirty (30) days after
receipt of an invoice from LESSOR . . . .
2006, the property was converted into a condominium known as
Baystate Building Condominium (“the
condominium”). The condominium has two trustees,
Baystate on the Common, LLC (“Baystate I”) and
Baystate on the Common II, LLC (“Baystate II”),
and two units. Verizon's cell site base station is in
July, 2007, Baystate II granted a mortgage to Mt. Washington
Cooperative Bank (“Mt. Washington”). The security
interest included the “Collateral Assignment of Leases
and Rents” on the property. In June, 2010, Mt.
Washington's successor, East Boston Savings Bank,
assigned the mortgage, including the “[l]eases, and the
notes and claims secured thereby, ” to Secured Debts
Cartersville, LLC. That LLC, in turn, assigned the mortgage
and the interest in leases to Haven in September, 2010. In
November, 2010 a certificate of entry for foreclosure was
executed on the property and in January, 2011 Haven
foreclosed on the property and bought it at auction.
was also a separate, parallel assignment of Verizon's
lease. In September, 2007, Baystate II assigned its lease
with Verizon to Capital Group II, LLC. Currently, the lease
is assigned to GTP Structures II, LLC (“GTP II”).
The Dispute Over the Electric Bill
parties provide different accounts of how the dispute over
the outstanding electric bill unfolded. When the predecessor
of Verizon's lease began, the property had only one
electric meter and the electric company, National Grid, sent
its bills directly to the landlord. In Haven's version of
events, it began receiving invoices from National Grid in
September, 2010 and there was an outstanding electric bill of
$20, 000 when it foreclosed on the property. Haven noticed
that the bills were atypically large and discovered that
there were two power lines into the property in 2012. After
investigating, it determined that the second line was
connected to a Verizon cellular tower on the building's
roof. Haven alleges that it presented Verizon with an invoice
in June, 2014 and that Verizon failed to pay it within 30
days in violation of the lease.
Verizon's recounting of the facts, Haven received an
electric bill for approximately $150, 000 in April, 2014. The
invoice stated that there was a “termination notice in
effect”. Haven refused to pay the invoice and forwarded
it to Verizon, even though it purported to be for all of the
electricity used at the property, not just Verizon's
portion. Verizon then negotiated with National Grid to pay
$75, 000 (one-half of the balance) in May, 2014 in order to
gain time to resolve its dispute with Haven. The following
month, Haven sent a second National Grid termination notice
to Verizon, again purportedly refusing to pay, and informed
Verizon that it was responsible for the entire balance.
Verizon paid off the remaining balance of approximately $86,
000 in August, 2014.
parties agree that as of August, 2014, Verizon had paid the
outstanding bill for electrical service on the entire
property. Furthermore, Haven admits that 1) Verizon actually
overpaid the bill by approximately $24, 000, 2) National Grid
sent the reimbursement to Haven and 3) it kept the
reimbursement rather than returning it to Verizon.
August, 2014, after the electric service invoice had been
paid, Verizon installed a separate meter so that it could be
directly billed for its use of electricity. Shortly
thereafter, Haven sent Verizon a letter asserting that it was
entitled to reimbursement of payments it made on behalf of
Verizon for electric service dating back to 1995. Haven
demanded payment of approximately $1, 666, 000 but Verizon
contends that there is no evidence that Haven paid any such
amount for electrical service.
June, 2015, Haven filed an amended complaint. Verizon timely
answered and counterclaimed. Each party alleges that the
other 1) breached its contractual obligations in the lease,
2) was unjustly enriched and 3) acted unfairly and
deceptively in violation of Chapter 93A and requests
compensatory and multiple damages and attorneys' fees and
costs under Chapter 93A.
June, 2016, Verizon moved for summary judgment on all claims
and counterclaims. Thereafter, Haven filed its opposition to
the summary judgment motion and moved for a stay. Verizon
later moved to strike portions of the affidavit of Albert
Adriani upon which Haven relies in its opposition to summary
judgment. This memorandum and order addresses those motions.
Motion to Stay
to Fed.R.Civ.P. 56(d), if the opponent of summary judgment
demonstrates that it is unable to submit facts crucial to its
opposition, a court may delay summary judgment or allow
supplemental discovery. Extra time under Rule 56(d) is not,
however, “to be granted as a matter of course.”
Troiano v. Aetna Life Ins. Co., 844 F.3d 35, 45 (1st
Cir. 2016) (quoting Hicks v.
Johnson, 755 F.3d 738, 743 (1st Cir. 2014)). A court
need not grant Rule 56(d) relief if the party opposing
summary judgment is “unlikely to garner useful evidence
from supplemental discovery.” Id. (quoting
Hicks, 755 F.3d at 743). Moreover, to be entitled to
extra time, the party opposing summary judgment must
(i) good cause for his inability to have discovered or
marshalled the necessary facts earlier in the proceedings;
(ii) a plausible basis for believing that additional facts
probably exist and can be retrieved within a reasonable time;
and (iii) an explanation of how those facts, if collected,
will suffice to defeat the pending summary judgment motion.
Alicea v. Machete Music,
744 F.3d 773, 788 (1st Cir.
2014) (quoting Rivera-Torresv.Rey-Hernandez, 502 F.3d 7, 10 (1st ...