United States District Court, D. Massachusetts
ORDER ON PENDING MOTIONS
Sorokin, United States District Judge.
case, plaintiffs Barbara Craw and Joan Shurtleff allege, on
behalf of themselves and other similarly situated current and
former residents of two manufactured housing communities,
that the defendants unlawfully refused to make necessary
repairs to the infrastructure on their homesites, resulting
in damage to their homes and dangerous conditions on their
homesites. See generally Doc. No. 10. After the
Court denied the defendants' motion to dismiss in its
entirety, Doc. No. 59, it then denied without prejudice the
plaintiffs' then-pending motion for partial summary
judgment because the Court's Order on the motion to
dismiss addressed many of the issues it raised, Doc. No. 63.
However, the Court allowed the plaintiffs to renew their
motion before the end of discovery if they wished and
established a schedule on which defendants could oppose the
motion or file a Rule 56(d) affidavit demonstrating their
need for discovery. Id. at 3. Now pending before the
Court are plaintiffs' renewed motion for partial summary
judgment, Doc. No. 74; plaintiffs' motion to amend the
case management order, Doc. No. 64; and defendants'
motion for a protective order, Doc. No. 84.
Plaintiffs' Motion for Partial Summary Judgment
their timely renewed motion for partial summary judgment,
Doc. No. 74, the plaintiffs seek summary judgment on Count I
of the Amended Complaint, which alleges that the
defendants' policy (“the Policy”) of shifting
onto residents the burden of maintaining homesite
infrastructure is “an unreasonable, unfair or
unconscionable rule as contemplated by Mass. Gen. Laws ch.
140, § 32L [the Manufactured Housing Act], as well as
corresponding regulations, and Defendants' implementation
of the Policy is an unfair or deceptive act or practice
pursuant to Mass. Gen. Laws ch. 93A, § 2 [the Consumer
Protection Act].” Doc. No. 10 ¶ 124. The Court has
already held that the Manufactured Housing Act and the
Attorney General's implementing regulations impose a duty
upon defendants to make necessary homesite improvements and
prohibits the imposition of that duty on residents.
See Doc. No. 59 at 16. The plaintiffs argue that,
because defendants withheld necessary homesite improvements
under the Policy, they “deprived [plaintiffs] of the
benefit of their respective bargains, such that all residents
were paying rent each month for lawfully required services
that they never received.” Doc. No. 75 at 9.
then timely filed a Rule 56(d) affidavit and an accompanying
memorandum, seeking additional discovery they argue is
necessary to their opposition to the summary judgment motion.
Doc. Nos. 76, 77. They seek expert discovery on the scope of
their maintenance duties, party discovery on the nature of
the plaintiffs' alleged injury, and third-party discovery
on the Attorney General's regulations. Doc. No. 76 at
3-15. This discovery is necessary, they argue, to dispute
plaintiffs' claims that defendants' failure to make
necessary homesite improvements caused the plaintiffs to
suffer a cognizable injury. Doc. No. 77 at 7-9.
judgment is appropriate when “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). A genuine dispute “is one on which
the evidence would enable a reasonable jury to find the fact
in favor of either party.” Perez v. Lorraine
Enters., Inc., 769 F.3d 23, 29 (1st Cir. 2014). “A
‘material' fact is one that is relevant in the
sense that it has the capacity to change the outcome of the
jury's determination.” Id. (citation
omitted). The Court is “obliged to view the record in
the light most favorable to the nonmoving party, and to draw
all reasonable inferences in the nonmoving party's
favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d
836, 841 (1st Cir. 1993). However, the Court must ignore
“conclusory allegations, improbable inferences, and
unsupported speculation.” Sullivan v. City of
Springfield, 561 F.3d 7, 14 (1st Cir. 2009).
Civ. P. 56(d) provides that “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the
defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.” Id.
56(d). To obtain relief under Rule 56(d), a litigant must
a timely statement-if not by affidavit, then in some other
authoritative manner- that (i) explains his or her current
inability to adduce the facts essential to filing an
opposition, (ii) provides a plausible basis for believing
that the sought-after facts can be assembled within a
reasonable time, and (iii) indicates how those facts would
influence the outcome of the pending summary judgment motion.
Velez v. Awning Windows, Inc., 375 F.3d 35, 40 (1st
Cir. 2004). “Even upon submission of the required
materials, the district court is entitled to refuse a Rule
56(d) motion if it concludes that the party opposing summary
judgment is unlikely to garner useful evidence from
supplemental discovery.” Hicks v. Johnson, 755
F.3d 738, 743 (1st Cir. 2014). “Speculative assertions
that the [moving party] has unspecified facts in its
possession necessary for the [nonmoving party] to develop its
legal theories coupled with conclusory statements that
discovery should be commenced are entirely inadequate to
extract the balm of Rule 56([d]).” C.B. Trucking,
Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 45 (1st Cir.
1998) (internal quotation omitted).
complaint under the Consumer Protection Act “must
allege that the plaintiff has been ‘injured' by the
act or practice claimed to be unfair or deceptive and
therefore unlawful.” Tyler v. Michaels Stores,
Inc., 984 N.E.2d 737, 744 (Mass. 2013). The plaintiff
“must allege and ultimately prove that she has, as a
result, suffered a distinct injury or harm that arises from
the claimed unfair or deceptive act itself.”
Id. at 746. Because of this requirement, “a
claim that alleges only a ‘per se' injury-that is,
a claim resting only on a deceptive practice, regulatory
noncompliance, or the impairment of an abstract right without
economic loss-is insufficient to state a Chapter 93A
claim.” Shaulis v. Nordstrom, Inc., 865 F.3d
1, 10 (1st Cir. 2017) (citations and internal quotations
omitted). Because the injury must result from ...