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Haven Real Estate Group, LLC v. Bell Atlantic Mobile of Massachusetts Corp.

United States District Court, D. Massachusetts

February 22, 2017

HAVEN REAL ESTATE GROUP, LLC, Plaintiff-Counterclaim Defendant,



         This 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 93A”).

         Haven's 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 part.

         I. Factual Background

         A. The Lease

         This 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 . . . .

         In May, 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 Unit II.

         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.

         There 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”).

         B. The Dispute Over the Electric Bill

         The 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.

         In 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.

         The 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.

         In 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.

         II. Procedural History

         In 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.

         In 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.

         III. Motion to Stay

         A. Legal Standard

         Pursuant 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 demonstrate

(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 ...

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