Preview
Date Filed 7/18/2022 3:36 PM
Superior Court - Suffolk LW
Docket Number 2084CV01086 21
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
C.A. No. 2084CV01086 F
EVOQUA WATER TECHNOLOGIES LLC,
Plaintiff,
v.
VEOLIA NORTH AMERICA, LLC,
Defendant and
Third-Party Plaintiff,
v.
KENDALL GREEN ENERGY, LLC,
Third-Party Defendant.
MOTION BY THIRD-PARTY DEFENDANT
KENDALL GREEN ENERGY, LLC, TO BIFUCRATE TRIAL
(Memorandum Incorporated)
Third-Party Defendant Kendall Green Energy, LLC (“Kendall Green”) moves pursuant to
Mass. R. Civ. P. 14(a) and 42(b) to bifurcate trial in this matter. Kendall Green requests that the
Court defer adjudication of Defendant Veolia North America, LLC’s (“Veolia’s”) single,
equitable third-party unjust enrichment claim against Kendall Green to a non-jury proceeding
that occurs only if Veolia is found primarily liable to Plaintiff Evoqua Water Technologies LLC
(“Evoqua”) at the initial jury trial. The applicable rules, the avoidance of jury confusion and
undue prejudice, the lack of a jury trial right on this one equitable claim, and overall efficiency
support bifurcation.
Background
Plaintiff Evoqua’s Complaint states three counts against Defendant Veolia. See
Complaint (Dkt. 1). Each of those counts concerns Veolia’s alleged breach of contract related to
Date Filed 7/18/2022 3:36 PM
Superior Court - Suffolk
Docket Number 2084CV01086
a water purification system that Evoqua installed at the Kendall Cogeneration Station in
Cambridge. See id. According to Evoqua, Veolia failed to pay Evoqua’s invoices for work
performed at the Station related to that system during January through June 2017, the last of
which was purportedly due July 30, 2017. See id. ¶¶ 18, 22, 25.
According to Evoqua, Kendall Green “participate[d] in the operation” of the Station with
Veolia. See id. ¶ 11. Kendall Green had bought from Evoqua the equipment at the Station on
which Evoqua had worked and claimed payment was due. See Evoqua’s & Veolia’s Joint
Appendix Re: Cross-Motions for Summary Judgment (Sep. 23, 2021) (“Joint Appx.”), Ex. 4
(Purchase and Sale Agreement for Equipment Between Kendall Green and Evoqua) at 1.
Evoqua, however, brought no claims in this case against Kendall Green, presumably because
Evoqua and Kendall Green entered into a Settlement Agreement and General Release effective
July 31, 2017 (“Release”), the day after the last of the allegedly unpaid invoices was due. See
Joint Appx., supra, Ex. 19 (Release). That Release includes the following:
Evoqua and its Affiliates do hereby release, remise, acquit and discharge (i)
Kendall and its Affiliates and their successors and assigns and (ii) their respective
officers, directors, employees, agents, and representatives, from and all claims,
demands, damages, debts, liabilities, actions, promises, causes of actions or suits
of whatever kind or nature, asserted or not asserted, whether known or unknown,
in law or equity, which Evoqua, its Affiliates, successors, assigns, agents or
representatives ever had, now have, hereafter can, shall or may have for, upon or
by reason of any matter, cause or thing whatsoever prior to the Effective Date.
Id. ¶ 2.1.
After filing its Answer to Evoqua’s Complaint, Veolia filed a Third-Party Complaint
against Kendall Green. See Dkt. 7. In it, Veolia states a single count for unjust enrichment
against Kendall Green, stating “[i]f Evoqua should recover all or part of any damages alleged
against Veolia, Kendall is liable to Veolia for unjust enrichment because Kendall received the
benefits conferred by Evoqua.” See id. ¶ 28.
2
Date Filed 7/18/2022 3:36 PM
Superior Court - Suffolk
Docket Number 2084CV01086
Argument
Rule 14 concerning “Third Party Practice” provides that “[a]ny party may move to strike
the third-party claim, or for its severance or separate trial.” Rule 14(a). Rule 42
(“Consolidation: Separate Trials”) further provides that “[t]he court, in furtherance of
convenience or to avoid prejudice, or when separate trials will be conducive to expedition and
economy, may order a separate trial … of any claim, cross-claim, counterclaim, or third-party
claim ….” Rule 42(b).
The only claim in this case against Kendall Green is Veolia’s single third-party count for
unjust enrichment. Because it is a third-party claim, Kendall Green can only be found liable to
Veolia if Veolia is first found liable to Evoqua. See Rule 14(a) (defendant may bring into case
third-party defendant “who is or may be liable to him for all or part of the plaintiff’s claim
against [defendant]”); see also Veolia 3d Party Complaint (Dkt. 7) ¶ 28 (alleging Kendall Green
liable to Veolia only “[i]f Evoqua should recover … damages alleged against Veolia” (emphasis
added)).
Courts regularly bifurcate trials of Rule 14 third-party claims. See, e.g., Makrigiannis v.
Nintendo of Am., Inc., 442 Mass. 675, 677 (2004) (noting trial court bifurcated jury trial on
plaintiff’s tort action from later bench trial on third-party claim); Shawmut Bank, N.A. v.
Merriam, No. 918047, 1994 WL 87977, at *1 (Mass. Super. May 13, 1994) (third-party action
for contribution and indemnification bifurcated from plaintiff’s action). Doing so supports
judicial economy and limits prejudice and juror confusion by deferring the issue of third-party
liability “for all or part of the plaintiff’s claim” (see Rule 14(a)) against the defendant until
defendant’s liability on plaintiff’s claim has been adjudicated. See Federal Procedure § 59:270
(“Separate trials in third-party action”).
3
Date Filed 7/18/2022 3:36 PM
Superior Court - Suffolk
Docket Number 2084CV01086
Adjudication of the third-party claim against Kendall Green at trial of Evoqua’s contract-
based claims against Veolia will impose undue prejudice on Kendall Green, as well as Veolia.
Evoqua did not—and could not—sue Kendall Green for the work performed at the Station
because of the Release. Including Kendall Green as a “defendant” in the same trial that
determines Veolia’s liability to Evoqua’s would improperly and unnecessarily allow the jury to
consider Kendall Green’s potential liability without the necessary prerequisite of finding Veolia
liable to Evoqua. A combined jury trial prejudices Kendall Green’s ability to defend against a
single third-party claim that hinges on a finding of Veolia’s liability to Evoqua.
Bifurcation is also appropriate because Veolia’s third-party unjust enrichment claim bears
no jury trial right. See Federal Procedure § 59:270 (reviewing comparable federal rules). Unjust
enrichment is an equitable claim. See Mass. Eye & Ear Infirmary v. QLT, Inc., 495 F. Supp. 2d
188, 192-93 (D. Mass. 2007) (“Massachusetts’ requirement that there be no available legal
remedy expressly marks unjust enrichment as an equitable remedy.”). Accordingly, unlike
Evoqua’s breach of contract claim against Veolia, there is no jury right on Veolia’s unjust
enrichment claim. See Bertolino v. Fracassa, No. SUCV20174210-BLS2, 2020 WL 8183088, at
*1 (Mass. Super. Oct. 27, 2020) (holding “no jury right attaches” on claim that “sounds in
equity”); 14C Mass. Practice § 10:12 (“no right to a jury trial” on equitable claims including “a
claim for unjust enrichment”).
Here, it is entirely appropriate that the Court be the finder of fact and rule in equity on
Veolia’s third-party claim only after Veolia’s liability to Evoqua has been decided. Bifurcation
will maximize efficiency with no prejudice to any party. Evoqua has no standing to challenge
bifurcation, which will not impact a fair determination of liability on its claims against Veolia.
Veolia will have every opportunity to defend itself against Veolia’s claims and, if found liable on
4
Date Filed 7/18/2022 3:36 PM
Superior Court - Suffolk
Docket Number 2084CV01086
those claims, to proceed against Kendall Green for unjust enrichment. A deferred, non-jury
proceeding on the third-party claim would be short and streamlined and, if required because
Veolia is found liable to Evoqua at trial, may even be avoided by a resolution between Veolia
and Kendall Green.
Conclusion
WHEREFORE, Third-Party Defendant Kendall Green requests that the Court allow this
Motion, bifurcate trial in this matter, and defer trial of the single, equitable, third-party count for
unjust enrichment against Kendall Green to a jury-waived proceeding that will follow any jury
verdict finding Veolia liable to Evoqua on any of the claims in Veolia’s Complaint.
Respectfully submitted,
KENDALL GREEN ENERGY, LLC,
Third-Party Defendant,
By Its Attorney,
Dated: July 8, 2022 Justin P. O’Brien
Justin P. O’Brien (BBO #658765)
Lovett O’Brien LLP
125 High Street, Suite 2611
Boston, MA 02110
jobrien@lovettobrien.com
617-371-1035 phone
617-314-0447 fax
Certificate of Service
I certify that on this date I served a copy of this document on counsel of record by email.
Dated: July 8, 2022 Justin P. O’Brien
5
Preview
Date Filed 7/18/2022 3:36 PM Superior Court - Suffolk LW Docket Number 2084CV01086 21 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT C.A. No. 2084CV01086 F EVOQUA WATER TECHNOLOGIES LLC, Plaintiff, v. VEOLIA NORTH AMERICA, LLC, Defendant and Third-Party Plaintiff, v. KENDALL GREEN ENERGY, LLC, Third-Party Defendant. MOTION BY THIRD-PARTY DEFENDANT KENDALL GREEN ENERGY, LLC, TO BIFUCRATE TRIAL (Memorandum Incorporated) Third-Party Defendant Kendall Green Energy, LLC (“Kendall Green”) moves pursuant to Mass. R. Civ. P. 14(a) and 42(b) to bifurcate trial in this matter. Kendall Green requests that the Court defer adjudication of Defendant Veolia North America, LLC’s (“Veolia’s”) single, equitable third-party unjust enrichment claim against Kendall Green to a non-jury proceeding that occurs only if Veolia is found primarily liable to Plaintiff Evoqua Water Technologies LLC (“Evoqua”) at the initial jury trial. The applicable rules, the avoidance of jury confusion and undue prejudice, the lack of a jury trial right on this one equitable claim, and overall efficiency support bifurcation. Background Plaintiff Evoqua’s Complaint states three counts against Defendant Veolia. See Complaint (Dkt. 1). Each of those counts concerns Veolia’s alleged breach of contract related to Date Filed 7/18/2022 3:36 PM Superior Court - Suffolk Docket Number 2084CV01086 a water purification system that Evoqua installed at the Kendall Cogeneration Station in Cambridge. See id. According to Evoqua, Veolia failed to pay Evoqua’s invoices for work performed at the Station related to that system during January through June 2017, the last of which was purportedly due July 30, 2017. See id. ¶¶ 18, 22, 25. According to Evoqua, Kendall Green “participate[d] in the operation” of the Station with Veolia. See id. ¶ 11. Kendall Green had bought from Evoqua the equipment at the Station on which Evoqua had worked and claimed payment was due. See Evoqua’s & Veolia’s Joint Appendix Re: Cross-Motions for Summary Judgment (Sep. 23, 2021) (“Joint Appx.”), Ex. 4 (Purchase and Sale Agreement for Equipment Between Kendall Green and Evoqua) at 1. Evoqua, however, brought no claims in this case against Kendall Green, presumably because Evoqua and Kendall Green entered into a Settlement Agreement and General Release effective July 31, 2017 (“Release”), the day after the last of the allegedly unpaid invoices was due. See Joint Appx., supra, Ex. 19 (Release). That Release includes the following: Evoqua and its Affiliates do hereby release, remise, acquit and discharge (i) Kendall and its Affiliates and their successors and assigns and (ii) their respective officers, directors, employees, agents, and representatives, from and all claims, demands, damages, debts, liabilities, actions, promises, causes of actions or suits of whatever kind or nature, asserted or not asserted, whether known or unknown, in law or equity, which Evoqua, its Affiliates, successors, assigns, agents or representatives ever had, now have, hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever prior to the Effective Date. Id. ¶ 2.1. After filing its Answer to Evoqua’s Complaint, Veolia filed a Third-Party Complaint against Kendall Green. See Dkt. 7. In it, Veolia states a single count for unjust enrichment against Kendall Green, stating “[i]f Evoqua should recover all or part of any damages alleged against Veolia, Kendall is liable to Veolia for unjust enrichment because Kendall received the benefits conferred by Evoqua.” See id. ¶ 28. 2 Date Filed 7/18/2022 3:36 PM Superior Court - Suffolk Docket Number 2084CV01086 Argument Rule 14 concerning “Third Party Practice” provides that “[a]ny party may move to strike the third-party claim, or for its severance or separate trial.” Rule 14(a). Rule 42 (“Consolidation: Separate Trials”) further provides that “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial … of any claim, cross-claim, counterclaim, or third-party claim ….” Rule 42(b). The only claim in this case against Kendall Green is Veolia’s single third-party count for unjust enrichment. Because it is a third-party claim, Kendall Green can only be found liable to Veolia if Veolia is first found liable to Evoqua. See Rule 14(a) (defendant may bring into case third-party defendant “who is or may be liable to him for all or part of the plaintiff’s claim against [defendant]”); see also Veolia 3d Party Complaint (Dkt. 7) ¶ 28 (alleging Kendall Green liable to Veolia only “[i]f Evoqua should recover … damages alleged against Veolia” (emphasis added)). Courts regularly bifurcate trials of Rule 14 third-party claims. See, e.g., Makrigiannis v. Nintendo of Am., Inc., 442 Mass. 675, 677 (2004) (noting trial court bifurcated jury trial on plaintiff’s tort action from later bench trial on third-party claim); Shawmut Bank, N.A. v. Merriam, No. 918047, 1994 WL 87977, at *1 (Mass. Super. May 13, 1994) (third-party action for contribution and indemnification bifurcated from plaintiff’s action). Doing so supports judicial economy and limits prejudice and juror confusion by deferring the issue of third-party liability “for all or part of the plaintiff’s claim” (see Rule 14(a)) against the defendant until defendant’s liability on plaintiff’s claim has been adjudicated. See Federal Procedure § 59:270 (“Separate trials in third-party action”). 3 Date Filed 7/18/2022 3:36 PM Superior Court - Suffolk Docket Number 2084CV01086 Adjudication of the third-party claim against Kendall Green at trial of Evoqua’s contract- based claims against Veolia will impose undue prejudice on Kendall Green, as well as Veolia. Evoqua did not—and could not—sue Kendall Green for the work performed at the Station because of the Release. Including Kendall Green as a “defendant” in the same trial that determines Veolia’s liability to Evoqua’s would improperly and unnecessarily allow the jury to consider Kendall Green’s potential liability without the necessary prerequisite of finding Veolia liable to Evoqua. A combined jury trial prejudices Kendall Green’s ability to defend against a single third-party claim that hinges on a finding of Veolia’s liability to Evoqua. Bifurcation is also appropriate because Veolia’s third-party unjust enrichment claim bears no jury trial right. See Federal Procedure § 59:270 (reviewing comparable federal rules). Unjust enrichment is an equitable claim. See Mass. Eye & Ear Infirmary v. QLT, Inc., 495 F. Supp. 2d 188, 192-93 (D. Mass. 2007) (“Massachusetts’ requirement that there be no available legal remedy expressly marks unjust enrichment as an equitable remedy.”). Accordingly, unlike Evoqua’s breach of contract claim against Veolia, there is no jury right on Veolia’s unjust enrichment claim. See Bertolino v. Fracassa, No. SUCV20174210-BLS2, 2020 WL 8183088, at *1 (Mass. Super. Oct. 27, 2020) (holding “no jury right attaches” on claim that “sounds in equity”); 14C Mass. Practice § 10:12 (“no right to a jury trial” on equitable claims including “a claim for unjust enrichment”). Here, it is entirely appropriate that the Court be the finder of fact and rule in equity on Veolia’s third-party claim only after Veolia’s liability to Evoqua has been decided. Bifurcation will maximize efficiency with no prejudice to any party. Evoqua has no standing to challenge bifurcation, which will not impact a fair determination of liability on its claims against Veolia. Veolia will have every opportunity to defend itself against Veolia’s claims and, if found liable on 4 Date Filed 7/18/2022 3:36 PM Superior Court - Suffolk Docket Number 2084CV01086 those claims, to proceed against Kendall Green for unjust enrichment. A deferred, non-jury proceeding on the third-party claim would be short and streamlined and, if required because Veolia is found liable to Evoqua at trial, may even be avoided by a resolution between Veolia and Kendall Green. Conclusion WHEREFORE, Third-Party Defendant Kendall Green requests that the Court allow this Motion, bifurcate trial in this matter, and defer trial of the single, equitable, third-party count for unjust enrichment against Kendall Green to a jury-waived proceeding that will follow any jury verdict finding Veolia liable to Evoqua on any of the claims in Veolia’s Complaint. Respectfully submitted, KENDALL GREEN ENERGY, LLC, Third-Party Defendant, By Its Attorney, Dated: July 8, 2022 Justin P. O’Brien Justin P. O’Brien (BBO #658765) Lovett O’Brien LLP 125 High Street, Suite 2611 Boston, MA 02110 jobrien@lovettobrien.com 617-371-1035 phone 617-314-0447 fax Certificate of Service I certify that on this date I served a copy of this document on counsel of record by email. Dated: July 8, 2022 Justin P. O’Brien 5