MEMORANDUM OF DECISION AND ORDER ON THE PARTIESâ
CROSS MOTIONS FOR SUMMARY JUDGMENT
William Barrett, Justice
this case, the plaintiffs, Matthew Ortins and Olivia Savarino
(collectively, the "Plaintiffs"), assert claims
against the defendants, Lincoln Property Co. ("Lincoln
Property"), Salem Station, LLC ("Salem
Station"), and Lincoln Apartment Management, LP
("Lincoln Management") (collectively, the
"Defendants"), on their own behalf and on behalf of
a class of similarly situated persons. In particular, the
Plaintiffs contend Lincoln Property and its affiliate,
Lincoln Management, intentionally charged prospective tenants
of properties they manage in Massachusetts application fees
and lock and key fees in violation of the Massachusetts
Security Deposit Law, G.L.c. 186, Â§ 15B (Count I and III),
and that these charges constitute per se violations
of G.L.c. 93A ("Chapter 93A") (Count II and IV).
This matter is currently before the court on the Defendantsâ
Motion For Summary Judgment (Paper No. 47) and the
Plaintiffsâ Motion For Summary Judgment (Paper No. 48). For
the reasons explained below, the Defendantsâ Motion is
DENIED and the Plaintiffsâ Motion is
ALLOWED in part and DENIED in part.
Plaintiffs filed the Complaint (Paper No. 1), on July 14,
2014, alleging Lincoln Property and Salem Station charged
tenants and prospective tenants application fees and lock and
key fees, i.e., re-key fees, above the actual cost of a new
lock and key, in violation of the Security Deposit Law and
Chapter 93A. There followed a number of disputes
between the parties regarding various discovery matters.
February 2, 2017, the Defendants filed the Motion For
Protective Order (Paper No. 11), which the court (Lauriat,
J.) allowed, without prejudice, on March 1, 2017, stating
"[c]lass certification not yet being heard or
determined, the requested discovery is presently limited to
the property in which the named plaintiffs are
involved." Thereafter, on March 22, 2017, the Plaintiffs
served the Defendants with the Motion To Compel Production Of
Documents And MRCP 30(b)(6) Deponents (Paper No. 13), which
limited the documents the Plaintiffs were requesting "to
the property in which the named plaintiffs are
two hearings and a number of submissions by the parties, on
June 30, 2017, corrected by order dated July 7, 2017, the
court (Tabit, J.) issued the Order Of The Court Relevant To
Lincoln Property Company, Salem Station, LLC, And Lincoln
Apartment Management, LP (the "Discovery Order")
(Paper No. 26), ordering the Defendants to produce within
sixty days various categories of documents relative to the
"Subject Properties," including: the management
agreements for these properties; documents showing which
tenants paid application fees and re-key fees, the amounts
paid, and the actual cost of all lock changes or new keys;
bank records evidencing the depositing and transferring of
application fees and re-key fees; and any documents
describing policies or guidelines for charging application
fees and re-key fees. J.A., Ex. T.
September 21, 2017, shortly before the expiration of the
sixty-day deadline set forth in the Discovery Order, the
Defendants filed the Motion For Reconsideration Of Court
Order Dated 6/30/2017 (Paper No. 30). In response, the
Plaintiffs filed the Opposition To Defendantsâ Motion For
Reconsideration And Request for Sanctions (Paper No. 30.1),
requesting that the court issue sanctions against the
Defendants based on their failure to comply with the
Discovery Order. On September 26, 2017, the court (Tabit, J.)
issued the Memorandum And Decision On Defendantsâ Motion For
Reconsideration Of The Courtâs Discovery Order (Paper No.
32), denying the motion and directing the Defendants to
"produce all documents responsive to th[e] courtâs
06/30/17 order and the courtâs 07/07/17 corrected order by
10/05/17." Therein, for the second time, the court
ordered the Defendants to conduct a diligent search of their
records, including electronically stored information, and
produce documents responsive to the categories outlined in
the Discovery Order. The court took no action relative to the
Plaintiffsâ request for sanctions.
October 31, 2017, the court (Tabit, J.) issued the Memorandum
And Order On Plaintiffsâ Motion For Class Certification
(Paper No. 34), granting certification to a class of
plaintiffs defined to include "[a]ll individuals who
paid rent application fees and lock and key fees to [Lincoln
Property] or [Lincoln Management] in the Commonwealth of
Massachusetts[,]" including "all tenants or
perspective [sic] tenants of Jefferson, at Salem Station, who
paid such fees." J.A., Ex. S. In addition,
therein, the court formally appointed Ortins and Savarino to
represent the class.
December 28, 2017, the Plaintiffs filed the Motion For
Sanctions Against All Defendants (Paper No. 36). J.A.,
Ex. U. The court (Tucker, J.) conducted hearings
relative to this motion on March 1, 21, and 27, 2018.
Following the hearing on March 1st, the court deferred ruling
on the Motion For Sanctions in order to grant the Defendants
"additional time to make further diligent searches for
documents and records, both in paper and electronic form, in
response to plaintiffsâ request." J.A., Ex. V.
The court also "admonished" Defendants for failing
to comply with the Discovery Order, stating they were
"required to fully comply with [the Discovery Order] or
set forth by sworn affidavit the reasons for
non-production." J.A., Ex. V.
March 30, 2018, the court issued the Order On Plaintiffsâ
Motion For Sanctions (the "Sanction Order") (Paper
No. 41), concluding the Plaintiffs were entitled to
reasonable attorneys fees, and sanctioning the Defendants for
their willful non-compliance with the Discovery Order and/or
spoliation of evidence. J.A., Ex. V. More
specifically, as a sanction for their discovery violations,
the court ordered that the Defendants were "precluded
from attempting to rebut" certain factual assertions,
a) That [Lincoln Property] and [Lincoln Management] were the
property managers at no less than 27 apartment complexes,
totaling no less than 6,500 residential units during the time
period of July 8, 2010 to date (hereinafter "the Time
b) That during the Time Period, [Salem Station] owned and
managed 266 apartments[sic] units;
c) That the defendants [Lincoln Property], [Lincoln
Management], and [Salem Station] charged tenants a $250
application fee and a $150 rekey fee on new leases executed
during the Time Period; and
d) The defendants [Lincoln Property], [Lincoln Management],
and [Salem Station] possess no documents that establish the
actual cost of new lock and key changes.
unrebuttable assertions establish the undisputed material
facts for purposes of the pending summary judgment motions.
To the extent additional relevant facts apply, the court will
address those facts during its discussion of the partiesâ
Plaintiffs contend they are entitled to judgment as a matter
of law for two reasons. First, on their claims for violation
of the Security Deposit Law (Counts I and III), the
plaintiffs assert that charging an application fee and any
amount other than the actual cost of the purchase and
installation of a lock constitutes a violation of the Law.
Second, the Defendantsâ violations of the Security Deposit
Law constitute per se unfair and deceptive acts or
practices in violation of Chapter 93A (Counts II and IV).
Additionally, the Plaintiffs argue that the Defendantsâ
conduct was "knowing and willful," entitling them
as a matter of law to an award of double or treble damages
under Chapter 93A.
Defendants argue judgment should enter in their favor on the
claims for violation of the Security Deposit Law. Lincoln
Property and/or Lincoln Management claim they cannot be
liable for violation of the Security Deposit Law because it
only applies to property owners, not managers. In addition,
they join with Salem Station in arguing that the Security
Deposit Law does not bar the fees at issue in this case.
Finally, the Defendants argue that, if the court decides they
are not liable for violation of the Security Deposit Law, the
claims for violation of Chapter 93A (which are, based
entirely on violation of that Law) also fail. Alternatively,
if the court decides they are liable for violation of the
Security Deposit Law, the Defendants contend entry of
judgment on the claims for violation of Chapter 93A is
inappropriate because issues of fact remain concerning
whether their conduct was willful and knowing.
Standard of Review
motion for summary judgment may be granted if "there is
no genuine issue as to any material fact and the moving party
is entitled to a judgment as a matter of law."
Mass.R.Civ.P. 56(c); see also Barrows v. Wareham Fire
Dist., 82 Mass.App.Ct. 623, 625 (2012), citing
Cassesso v. Commissioner of Corr., 390 Mass. 419,
422 (1983). The party opposing a request for summary judgment
must respond and allege specific facts establishing the
existence of a genuine issue of material fact for trial.
Polaroid Corp. v. Rollins Envtl. Servs. (N.J.), Inc., 416
Mass. 684, 696 (1993). The court views the evidence in the
light most favorable to the nonmoving party, but does not
weigh evidence, assess credibility, or find facts.
Drakopoulos v. United States Bank Natâl Assân, 465
Mass. 775, 788 (2013), quoting OâConnor v. Redstone,
452 Mass. 537, 550 (2008).