United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANT STARWOOD'S
MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 16)
MARIANNE B. BOWLER United States Magistrate Judge.
before this court is a motion for summary judgment filed by
defendant Starwood Hotels and Resorts Worldwide, Inc.
(“defendant”). (Docket Entry # 16). Plaintiff
Susan Gordon (“plaintiff”) opposes the motion.
(Docket Entry # 18). After conducting a hearing, this court
took the motion (Docket Entry # 16) under advisement.
about September 2, 2014, plaintiff filed an action in
Pennsylvania state court in Wayne County against defendant
seeking damages for injuries sustained while a guest of Cove
Haven Resort in Lakeville, Pennsylvania. (Docket Entry #
17-1). Plaintiff voluntarily dismissed this action prior to
June 30, 2015. (Docket Entry # 17-1). On June 30, 2015,
plaintiff filed suit for the same injury in Massachusetts
Superior Court (Suffolk County). (Docket Entry # 17-2).
complaint contains two causes of action. (Docket Entry #
17-2). Count I alleges that plaintiff sustained personal
injuries as a result of the negligence of one of
defendant's employees and Count II alleges that defendant
breached its duty to adequately train and supervise its
employees. (Docket Entry # 17-2).
September 3, 2015, defendant removed this case to the United
States District Court for the District of Massachusetts.
(Docket Entry # 1). Jurisdiction is based on diversity under
28 U.S.C. § 1332, as plaintiff is a resident of
Massachusetts (Docket Entry # 17-1) and defendant is a
Maryland corporation with a principal place of business in
Connecticut (Docket Entry # 17-4). The amount in controversy
exceeds $75, 000. (Docket Entry ## 17-2 & 19-1).
judgment is designed “to ‘pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually required.'”
Tobin v. Federal Express Corp., 775 F.3d 448, 450
(1st Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of
Med., 976 F.2d 791, 794 (1st Cir. 1992)). It is
appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). It is inappropriate “if the record is
sufficiently open-ended to permit a rational factfinder to
resolve a material factual dispute in favor of either
side.” Pierce v. Cotuit Fire Dist., 741 F.3d
295, 301 (1st Cir. 2014).
issues of fact are those that a factfinder could resolve in
favor of the nonmovant, while material facts are those whose
‘existence or nonexistence has the potential to change
the outcome of the suit.'” Green Mountain
Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014)
(quoting Tropigas de Puerto Rico, Inc. v. Certain
Underwriters at Lloyd's of London, 637 F.3d 53, 56
(1st Cir. 2011)). The evidence is viewed “in the light
most favorable to the non-moving party” and “all
reasonable inferences” are drawn in his favor.
Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014).
“Unsupported allegations and speculation, ”
however, “do not demonstrate either entitlement to
summary judgment or the existence of a genuine issue of
material fact sufficient to defeat summary judgment.”
Rivera-Colón v. Mills, 635 F.3d 9, 12 (1st
Cir. 2011); see Serra v. Quantum Servicing, Corp.,
747 F.3d 37, 39-40 (1st Cir. 2014) (“allegations of a
merely speculative or conclusory nature are rightly
lives in Lunenburg, Massachusetts and works for UMass
Memorial Hospital in Worcester, Massachusetts as a
phlebotomist. (Docket Entry # 17-3, No. 1). In August 2012,
plaintiff made a reservation directly with Cove Haven Resort
in Lakeville, Pennsylvania (“the resort”) (Docket
Entry # 17-3), which is owned and operated by defendant
(Docket Entry # 17-4). On the morning of September 1, 2012,
plaintiff and her husband drove from their residence in
Massachusetts and arrived at the resort in Pennsylvania for a
weekend vacation. (Docket Entry # 17-3).
next morning on September 2, 2012, plaintiff and her husband
went on a boat ride tour operated by the resort. (Docket
Entry # 17-3). Having had a good time in the morning,
plaintiff and her husband decided to go on another boat ride
tour operated by the resort in the afternoon. (Docket Entry #
17-3). During the afternoon tour, at around 2:00 p.m., the
operator of the boat hit the waves of other boats on the
lake. (Docket Entry # 17-3). As a result, plaintiff was
thrown off the boat and twice flew into the air and landed on
her buttocks, causing fractures to her T-12 vertebrae and
bruises on her back, buttocks and thighs. (Docket Entry #
after the injury, plaintiff was taken by ambulance to
Scranton Hospital in Pennsylvania where she received a CAT
scan and numerous follow-up exams. (Docket Entry ## 19-1
& 17-3). The next day on September 3, 2012, plaintiff and
her husband drove back to Massachusetts and went to
Massachusetts General Hospital (“Mass. General”)
in Boston, Massachusetts. (Docket Entry ## 19-1 & 17-3).
She received treatment at the hospital on September 3 and 4
and had blood work done on September 5. (Docket Entry # 17-3,
No. 6). She was treated at Mass. General for the next seven
months. (Docket Entry # 19-1). In November, she underwent
spine cementation, a procedure also known as “vertebral
augmentation, ” at Mass. General. (Docket Entry # 17-3,
No. 6). She was “covered under Harvard Pilgrim medical
insurance” and “incurred approximately $70, 000
in medical expenses.” (Docket Entry # 19-1).
seeks summary judgment because Pennsylvania's two-year
statute of limitations for personal injury tort claims bars
plaintiff's claims as untimely. (Docket Entry # 16).
Plaintiff argues that the Massachusetts three-year statute of
limitations for tort claims, Mass. Gen. Laws ch. 260, §
2A, applies thereby rendering this action timely filed.
(Docket Entry # 18).
federal court sitting in diversity applies the choice of law
rules of the forum state. See Klaxon Co. v. Stentor
Electric Mfg. Co., 313 U.S. 487, 496 (1941); see
also Hartford Fire Ins. Co. v. CAN Ins. Co. (Europe)
Ltd., 633 F.3d 50, 54 n.7 (1st Cir. 2011) (“[a]s a
federal court sitting in diversity, ” forum's
choice of law rules apply). Massachusetts choice of law rules
therefore apply. In Massachusetts, instead of recognizing
statute of limitations as a procedural matter and
categorically applying Massachusetts' statute of
limitations, courts adhere to a functional approach. See
Nierman v. Hyatt Corp., 808 N.E.2d 290, 292 (Mass. 2004)
(“functional approach . . . treats the issue as a
choice of law question, as stated in the Restatement
(Second) of Conflict of Laws § 142 (Supp.
1989)”) (“Restatement”); see
also New England Tel. & Tel. Co. v. Gourdeau Const. Co.
Inc., 647 N.E.2d 42, 45 (Mass. 1995) (applying the rules
of Restatement § 142). Courts should focus
“on the statute of limitations issue, and not on the
underlying tort.” Nierman, 808 N.E.2d at 293
(citing Kahn v. Royal Ins. Co., 709 N.E.2d 822, 824
subject to the principles in section six, section 142
(2) The forum will apply its own statute of limitations
permitting the claim unless: (a) maintenance of the claim
would serve no substantial interest of the forum, and (b) the
claim would be barred under the statute of limitations of a
state having a more significant relationship to the parties
and the occurrence.
Restatement § 142(2). Specifically, this court
“consider[s] (1) whether Massachusetts has a
substantial interest in permitting the claims to go forward
and (2) whether Texas [here, Pennsylvania] has a more
significant relationship to the parties and the negligence
claim.” Nierman, 808 N.E.2d at 293 (citing the
Restatement § 142).
striking similarity between the facts in Nierman, in
which the Massachusetts Supreme Judicial Court
(“SJC”) applied a Texas statute of limitations in
a personal injury action involving a Massachusetts resident,
and the facts in the case at bar warrants examining the
decision. Nierman was a Massachusetts resident who, like
plaintiff, was injured out of state and brought suit against
a national hotel chain, Hyatt Corporation
(“Hyatt”), arising out of injuries she sustained
in Texas when a hotel employee accelerated a transport cart
in which she was seated. Nierman, 808 N.E.2d at 291.
Like defendant, the principal place of business and place of
incorporation of Hyatt was neither the place of the injury
(Texas) nor the forum state and plaintiff's state of
residence (Massachusetts). Id. Hyatt, like defendant
which has a resort in Pennsylvania, had a “place of
business in ...