United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper, United States District Judge
Plante & Moran, PLLC (“PM”) has filed this
lawsuit against Defendant Andover Healthcare, Inc.
(“Andover”), alleging breach of contract (Count
I), breach of implied contract (Count II), breach of oral
contract (Count III), unjust enrichment (Count IV), account
stated (Count V) and quantum meruit (Count VI). D. 1.
Following this Court's order partially allowing PM's
motion to dismiss, D. 29, Andover's surviving
counterclaims include breach of contract (Count I) and unfair
and deceptive acts in violation of Mass. Gen. L. c. 93A,
§§ 2, 11 (“Chapter 93A”) (Count IV). D.
5 at 6-9. PM now moves for summary judgment as to Counts
I-IV, Count VI and Andover's counterclaims. D. 30.
Andover moves to strike PM's supporting affidavits. D.
37-3; D. 37-4. For the reasons stated below, the Court ALLOWS
IN PART and DENIES IN PART PM's summary judgment motion,
D. 30, and DENIES Andover's motions to strike, D. 37-3;
Standard of Review
judgment is properly granted if the movant can demonstrate
that ‘there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter
of law.'” Miranda-Rivera v.
Toledo-Dávila, 813 F.3d 64, 69 (1st Cir. 2016)
(quoting Fed.R.Civ.P. 56(a)). “A genuine issue is one
that can ‘be resolved in favor of either party' and
a material fact is one which ‘has the potential of
affecting the outcome of the case.'” Gerald v.
Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013) (quoting
Pérez-Cordero v. Wal-Mart P.R., Inc., 656
F.3d 19, 25 (1st Cir. 2011)). If the movant meets its burden,
the non-moving party “must, with respect to each issue
on which she would bear the burden of proof at trial,
demonstrate that a trier of fact could reasonably resolve
that issue in her favor.” Borges ex rel. S.M.B.W.
v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010).
“Neither party may rely on conclusory allegations or
unsubstantiated denials, but must identify specific facts
derived from the pleadings, depositions, answers to
interrogatories, admissions and affidavits to demonstrate
either the existence or absence of an issue of fact.”
Magee v. United States, 121 F.3d 1, 3 (1st Cir.
1997). In conducting this inquiry, the Court “view[s]
the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor.” Noonan
v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
Motions to Strike Affidavits
Rule 56(c), “[a]n affidavit or declaration used to
support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed.R.Civ.P.
56(c)(4). The “requisite personal knowledge must
concern facts as opposed to conclusions, assumptions, or
surmise.” Perez v. Volvo Car Corp., 247 F.3d
303, 316 (1st Cir. 2001). At summary judgment, the Court
“may take into account any material that would be
admissible or usable at trial, ” and
“inadmissible evidence may not be considered.”
Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993).
“A motion to strike is the appropriate means of
objecting to the use of affidavit evidence on a motion for
summary judgment” and if the Court finds only certain
portions of an affidavit inadmissible, the Court will
disregard only those portions and consider the rest of it.
Facey v. Dickhaut, 91 F.Supp.3d 12, 19-20 (D. Mass.
following facts are drawn primarily from the parties'
statements of material facts, D. 32; D. 37-1, and are
undisputed unless otherwise noted.
manufactures medical products, such as cohesive elastic
bandages. D. 37-2 at 6-8. PM is a consulting firm based in
Michigan. D. 1 ¶ 1. Andover and PM entered into three
written contracts between late July 2015 and December 2015.
D. 32 ¶¶ 1-53; D. 33-2; D. 33-6; D. 33-9. The first
contract, signed August 5, 2015, was a flat fee agreement and
is not at issue here. D. 32 ¶ 7; see D. 1
¶¶ 54-89; D. 5 ¶¶ 10-12, 15-16. This
contract was entered into by Thomas Murphy, founder and
president of Andover, and Phillip C. Brown, a partner at PM,
D. 32 ¶ 3; D. 35 ¶¶ 2-4; D. 37-1 ¶ 2; D.
37-2 at 10, and provided that Andover would pay PM $35, 000
for a three-day period of consulting services, plus expenses.
D. 32 ¶¶ 4-5. See D. 33-3. PM billed
Andover the $35, 000 on August 17, 2015, D. 33-4, which
Andover paid. D. 32 ¶¶ 6, 8.
The Second Contract
September 11, 2015, the parties entered into a second
contract, under which PM agreed to perform initial support
services related to Andover's Master Validation Plan
(“MVP”), including “deploying, training,
coaching and performing validation of manufacturing and test
equipment and processes, ” D. 33-6 at 5. D. 32
¶¶ 10-11; D. 37-1 ¶ 1. The second contract,
like the first, was signed by Murphy on Andover's behalf
and Brown on PM's behalf. D. 32 ¶¶ 12-13; D. 35
¶¶ 5-6; D. 37-1 ¶ 2. The second contract
“was for six weeks of work, ” D. 32 ¶ 14; D.
37-1 ¶ 3; D. 33-6 at 10, and states that the “core
project team will consist of two team members participating
in six visits to Andover Healthcare.” D. 33-6 at 10.
The contract page titled “Project Fees” breaks
down “[e]stimated fees” as follows:
Estimated fees are $100, 000 for six weeks. Expenses will be
billed at cost. Estimated fees are based on the following
average hourly rates: