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Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
26
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2381CV01682
JON BAK, RECEIVED
Plaintiff, 6/17/2024
v
HEARING REQUESTED
CAPITAL CARPET AND FLOORING
SPECIALISTS, INC.,
Defendants.
OPPOSITION TO PLAINTIFF’S EMERGENCY MOTION FOR
PROTECTIVE ORDER AND DEFENDANTS’ REQUEST FOR FEES
No Emergency. Perhaps the most remarkable aspect of Plaintiff Jon Bak’s emergency
motion is its use of “spurious,” “bad faith,” and other baseless allegations against the
undersigned’s commonplace evidence-preservation request.! Nor are there any “emergency”
circumstances present. Bak — through a telephone conference among counsel — was informed on
or about June 7, 2024 that Capital Carpet was unaware of additional non-parties that would
require an evidence-preservation request.
Bak’s Misrepresentations. Bak’s motion also (i) misrepresents his involvement while
employed by Capital Carpet with a project at Massachusetts General Hospital (the “MGH
Project”) managed by a joint venture of Walsh Brothers, Inc. and Turner Construction Co.
(the “MGH Joint Venture”); (ii) misrepresents earlier comments Mr. Marrama made to Turner
Construction about the scope of Bak’s post-employment restrictions; and (iii) mispresents
Capital Carpet’s litigation activities and motivations.
' A copy of this letter is attached as Exhibit A.
mr
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Fee Request. It is troubling that any litigant would file an emergency motion and
affidavit with the Court containing the misrepresentations found in Bak’s motion. In particular,
Bak submitted an affidavit which states: “I am not aware of any discussions, budgeting or
bidding on the Turner/MGH project during my employment with Capital.” Exhibits A and
B to this Opposition establish that Bak’s statement is false. While at Capital Carpet, Bak worked
on the MGH Project and submitted a bid on behalf of Capital Carpet. Accordingly, Capital
Carpet respectfully requests an award of attorneys’ fees associated with opposing Bak’s motion.
If additional factual development would assist the Court in considering this fee request, then
Capital Carpet respectfully requests an evidentiary hearing at the Court’s earliest convenience.
FACTUAL BACKGROUND
Founded in 1991 by Mark Marrama, Capital Carpet has served the New England
community by providing quality floor covering services to various commercial and institutional
customers. Paper No. 13, Am. Countercl. § 8. Capital Carpet operates in a highly competitive
market. There are other companies providing and selling similar services and competing for the
same customers, projects, vendor relationships, and market share as Capital Carpet—including
Select Tile, Marble & Flooring, LLC (“Select Tile”). /d. 4 9.
Capital Carpet’s success in the market is dependent on its ability to protect its
confidential, proprietary, and trade secret information, and to use such information when
preparing competitive estimates and project bids. Am. Countercl. §§ 10, 12, 13. Capital Carpet’s
data on specific types of projects for various customers—including labor requirements, labor
production rates, materials, and pricing—allow Capital Carpet to develop accurate, competitive,
and profitable estimates and bids. Jd. § 14.
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Bak’s Employment with Capital Carpet
Capital Carpet first hired Bak as an Account Manager in December 2016. Am. Countercl.
{ 18. Bak was provided with access to, and he made use of, Capital Carpet’s confidential
business information and trade secret information (collectively, “Confidential Information”) in
connection with estimating, bidding, and securing flooring contracts for existing and new
customers. /d. § 23.
Bak signed a Confidentiality and Non-Solicitation Agreement (the “Agreement”) with
Capital Carpet. /d. § 20. The Agreement defines and protects Confidential Information and
prohibits Bak from soliciting certain Capital Carpet customers or prospective customers for one
year after the end of his employment. /d. §{] 21, 22. In March 2022, Capital Carpet offered Bak a
promotion to Project Executive/Corporate Sales Team Manager; he accepted and re-affirmed the
Agreement. /d. § 25. In connection with his new position, Bak had access to Confidential
Information and he was provided with an iPhone mobile device (the “Device”). /d. {{ 26, 27.
Bak’s Involvement with the MGH Project
In May 2022, Bak prepared a bid for Capital Carpet on the MGH Joint Venture’s project,
called the MGH Cambridge Street Project, i.e., the MGH Project. As entered in Capital Carpet’s
system, Bak prepared the MGH Project bid for “Walsh Brothers.”? See Exhibit A, Bid
documents and correspondence (redacted). Bak’s bid on this project was based on Confidential
Information, including pricing information from one of Capital Carpet’s flooring product
suppliers. /d. All while employed by Capital Carpet, Bak obtained pricing, prepared budget
information, and prepared a project estimate for the MGH Project. /d. He also submitted a bid to
Turner on behalf of Capital Carpet for the MGH Project. Exhibit B, MGH Cambridge Street
? There is a factual dispute about whether the MGH Joint Venture is subject to the exclusion in the non-
solicitation provision in the Agreement concerning Turner Construction.
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Project Bid to Turner Const dated Jul. 14, 2022. Incredibly, Bak’s affidavit submitted with his
motion omits this material information. Instead, Bak states under penalty of perjury that: “Lam
not aware of any discussions, budgeting or bidding on the Turner/MGH project during my
ployment with Capital.” Aff. of J. Bak J 4 (Jun. 14, 2024). Exhibits A and B to this
Opposition expose Bak’s statement as false.
Bak Abruptly Resigns from Capital Carpet
In early February 2023, Bak printed a report (the “Report”) which detailed the various
projects he had worked on for two Capital Carpet customer relationships: Lee Kennedy Co., Inc.
and Turner Construction. Am. Countercl. § 28. The Report included contract amounts, labor and
material costs, and profit margins for each project. /d. § 29. This information is not publicly
available, and it would be valuable to Capital Carpet’s competitors when bidding against Capital
Carpet. /d. In connection with his Capital Carpet employment, there was no business reason for
Bak to create and print the Report. /d. { 30. When Bak left Capital Carpet, he did not return any
copies of the Report.
On Friday, February 17, 2023, Bak forwarded a bid invite for a project entitled “Boston
Properties 300 Binney — Base Building” as well as the Agreement and his March 4, 2022 offer
letter to an executive at Select Tile. Am. Countercl. § 31. There was no business reason for Bak
to provide this information to Select Tile, a direct competitor of Capital Carpet. /d. On the same
day, Bak also printed a pricing cover sheet for a Capital Carpet bid that he had worked on, titled
“Fidelity Pier II Rebid.” /d. ¥ 32. As with the Report, Bak did not return his copies of the Fidelity
Pier II Rebid in connection with his departure from Capital Carpet.
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Bak’s Post-Employment Activities
On Tuesday, February 21, 2023, while Capital Carpet’s President was travelling outside
of the Commonwealth, Bak abruptly resigned his employment and began working for Select
Tile. Am. Countercl. § 33. Without authorization from Capital Carpet, Bak erased and wiped the
Device. /d. § 34. Bak also asked his assistant at Capital Carpet to alter her login to a Capital
Carpet software account to monitor, without authorization, Capital Carpet’s financial
information. Id. § 36.
In or around April 2023, Bak told a Capital Carpet employee that he was working on
estimates for Select Tile’s resilient flooring bids. Am. Countercl. § 39. Bak also disclosed that
Select Tile had asked him to prepare a “labor production spreadsheet” concerning labor rates for
carpet and resilient flooring products. /d. Bak’s knowledge and information about “labor
production” on these types of flooring products for various types of customers originated from
Capital Carpet’s Confidential Information, including the Report, the Database, and other
repositories of Capital Carpet’s proprietary information. /d.
By letter dated May 30, 2023, Capital Carpet advised Bak that he was in violation of the
Agreement. Am Countercl. § 40. This letter demanded that Bak immediately cease and desist
from engaging in such conduct. /d. Nonetheless, Bak continued to use Confidential Information
to benefit Select Tile and interfere with Capital Carpet’s business. /d. § 41. For example, Select
Tile bid on projects entitled “Fidelity Pier II Rebid,” and “Boston Properties 300 Binney — Base
Building Project,” along with a project for Boston Children’s Hospital located in Needham, MA
Id. § 42. Bak was directly or indirectly involved with these bids (including preparing estimates)
on behalf of Select Tile. /d. Previously, while employed with Capital Carpet, Bak prepared
estimates and bids using Capital Carpet’s Confidential Information for those projects. /d. § 43.
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Procedural History and Preservation Letters
In response to Capital Carpet’s May 30 letter, supra, Bak preemptively filed this lawsuit.
Capital Carpet denies Bak’s allegations under the Wage Act and it filed a counterclaim. As
subsequently amended, this Counterclaim asserts two claims against Bak: Breach of Contract
(Count I) and Misappropriation in Violation of the Massachusetts Uniform Trade Secrets Act
(Count II).
Thereafter, Bak moved to dismiss the Counterclaim; a hearing is scheduled for August
23, 2024. In connection with his motion to dismiss, Bak also moved for a stay of discovery
concerning the Counterclaim.?
In early May 2024, Capital Carpet learned that Bak and Select Tile won the MGH
Project. As explained above, this was a project Bak worked on substantively while at Capital
Carpet. Thus, on May 21, 2024, the undersigned sent an evidence-preservation notice to the
MGH Joint Venture concerning the MGH Project. See Exhibit C, Letter to J. Brosnan and CT
Corp. dated May 21, 2024.
A few days later, on May 23, 2024, Capital Carpet received the Court’s order staying all
discovery concerning the Counterclaim until after the hearing on Bak’s motion to dismiss. Bak’s
motion argues that the letter to the MGH Joint Venture somehow violated the Court’s discovery
stay. This argument is refuted by the actual chronology: the preservation letter was sent before
the Court entered the stay. Moreover, this letter to the MGH Joint Venture is substantively
similar to the evidence preservation letter that Capital Carpet previously sent to Select Tile’s
3 Bak’s motion attempts to paint Capital Carpet as “dilatory” in discovery and with filing responsive
pleadings. What Bak’s fails to disclose is that during that same time the parties were engaged in
settlement discussions in an effort to resolve this dispute. The parties had multiple substantive
conversations and exchanged information and relevant documents informally. During this time, the
parties acknowledged that litigation resources should be conserved.
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
counsel. See Exhibit D, Letter to J. Lewin dated Oct. 10, 2023. Strangely, Bak’s motion alleges
that Capital Carpet never sent such a letter to Select Tile. Pl.’s Mot. at 6 (“... Capital never sent a
preservation letter to Select ...”) (emphasis added).
ARGUMENT.
1. There Are No Exigent Circumstances Warranting Emergency Relief.
There are no “emergency” circumstances here, where Bak — through a telephone
conference among counsel — was informed on or about June 7, 2024 that Capital Carpet was
unaware of additional non-parties that would require an evidence-preservation request. Bak’s
motion should be denied on this basis alone.
2. Bak’s Motion is Premised on Several Misrepresentations.
As described above, Bak’s motion has misrepresented his involvement with the MGH
Project and the MGH Joint Venture while employed by Capital Carpet.
In addition, Bak’s motion misrepresents earlier comments that Mr. Marrama made to
Turner Construction about the scope of Bak’s post-employment restrictions. Mr. Marrama never
attempted to interfere with Bak’s or Select Tile’s legitimate business activities. As detailed in a
contemporaneous letter to Select Tile’s counsel, Capital Carpet explained that Mr. Marrama
accurately explained the scope of Bak’s post-employment restrictions, acknowledged that Bak
was permitted to work for Select Tile and bid on projects, and expressed disappointment that
Turner awarded a project to Select Tile that Bak had bid on while at Capital Carpet:
[Mr. Maramma] did have a conversation with Turner Construction Company
(“Turner”) and the parties agreed that projects Mr. Bak had already estimated and
bid on behalf of Capital Carpet — using Capital Carpet’s confidential and
proprietary business information — would remain in place. In its discussions with
Turner, Capital Carpet was clear that Mr. Bak was allowed to work for a
competitor and allowed to bid on new projects. Capital Carpet did have a
subsequent conversation with Turner, during which it expressed disappointment
that a project Mr. Bak had bid while at Capital Carpet was later awarded to Select
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Tile. As you are aware, there is nothing unlawful or improper about these types of
conversations.
Exhibit D, Letter to J. Lewin dated Oct. 10, 2023 (emphasis added).
Finally, Capital Carpet’s litigation activities and motivations are detailed above. Bak’s
motion deploys terms like “spurious,” “bad faith,” and other baseless allegations against the
undersigned’s commonplace evidence-preservation request. None of these allegations are true or
supported by the facts. Capital Carpet’s earlier experiences with Select Tile and Bak using
Confidential Information, along with Bak’s unauthorized deletion of the Device and other
conduct, amplified Capital Carpet’s concerns about obtaining relevant evidence related to its
Counterclaim. As one commentator has observed, an evidence-preservation letter “... is a wise
precursor to the obligations imposed by the federal, state, and local rules of procedure imposing
discovery ‘meet and confer’ obligations. ... The preservation letter plays a key role in a court’s
consideration of whether a party acted in bad faith in connection with the irreparable loss of data
that should have been preserved.” Craig Ball, The Perfect Preservation Letter at 2 (2020).4
Bak’s motion argues, incorrectly, that the evidence-preservation letter to the MGH Joint
Venture was sent after the Court’s order of May 23, 2024, staying discovery. As detailed above,
the discovery stay was ordered after the undersigned sent that letter. Bak also argues that the
letter served no legitimate purpose. That position is contradicted by the fact that Bak prepared
bids and estimates for the MGH Project while a Capital Carpet employee; and then did the same
for his new employer. For that reason, the MGH Joint Venture likely possesses relevant
documents and communications that must be preserved.
* Available at http://www. craigball.com/Perfect_Preservation_Letter_Guide_2020.pdf (last viewed Jun. 17, 2024).
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
3. Capital Carpet’s Fee Request.
Capital Carpet respectfully requests an award of attorneys’ fees associated with opposing
Bak’s motion, due to the factual misrepresentations detailed above.
CONCLUSION AND HEARING RE UEST.
By reason of the above, this Court should deny Bak’s motion for a protective order and
award Capital Carpet its fees incurred in connection with this opposition. To the extent an
evidentiary hearing would assist the Court in considering Capital Carpet’s fee request, Capital
Carpet respectfully requests such hearing at the Court’s earliest convenience.
Respectfully submitted,
CAPITAL CARPET AND FLOORING
SPECIALISTS, INC. and MARK
MARRAMA
By their attorneys,
/s/ Matthew P. Horvitz
Matthew P. Horvitz (BBO # 664136)
Julius A. Halstead (BBO # 705428)
GOULSTON & STORRS PC
One Post Office Square, 25" Floor
Boston, Massachusetts 02109
(617) 482-1776
mhorvitz@goulstonstorrs.com
Dated: June 17, 2024 jhalstead@goulstonstorrs.com
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
CERTIFICATE OF SERVICE
Thereby certify that on June 17, 2024, a true copy of the above document and attached
exhibits was served by electronic mail upon the following counsel of record:
Todd Jarrett Bennett, Esq.
Michaela May, Esq.
Bennett and Belfort P.C.
24 Thorndike Street, Suite 300
Cambridge, MA 02141
tbennett@bennettandbelfort.com
mmay@bennettandbelfort.com
/s/ Matthew P. Horvitz
10
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
EXHIBITS
Table of Contents
Exhibit A, Bid correspondence and documents
Exhibit B, MGH Cambridge Street Project Bid to Turner Const 23
Exhibit C, Letter to J. Brosnan and CT Corp 30
Exhibit D, Letter to J. Lewin 33
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
EXHIBIT A
000001
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
t er 2381CV01682 Bid Print PAGE 1
DATE 65/20/24 12:23 RANGE
CAPITAL CARPET & FLOORING 60000496 ~ 60200496
BID # 60000496 02 222 MGH CAMBRIDGE STREET PROJECT Job
>
BID TYPE BASE B10 STATUS OPEN LABOR
BID DATE 05/23/2022 DUE DATE 06/10/2022 LAB RATE
SALENAN 28 JON BAK ESTIMATOR ss ZONE
CUST # 92438 TAKE OFF TIME 2080 WEEKEND
NAME WAL STi ee MARKET HOSPITAL Mu 20.00
ADR 1 ATTN: ACCOUNTS PAYABLE MAJOR PROD TAX STATE MA
ADR 2 210 COMMERCIAL STREET PROJECT NGH CAMBRIDGE STREET PROJECT COUNTY
ay BOSTON DESCRIPTION MAT TAX U 6.2500
STATE MA B TAX N
ZIP 02109 S TAX N
CONTACT 1 LOCATION MASS GENERAL HOSPITAL
PHONE ( ) 200-2000 CAMBRIDGE STREET Start Quality
EXT 00000 Start Date
FAX ( ) 080-2000 PROJECT MANAGER Comp Date
EMATL PHONE ( ) e82-2000 Handle Furniture OMITTED
CONTACT 2 EXT 02000 Demolition OMITTED
PHONE ( ) 686-8200 FAX ( ) 08e-2000 Disposal OMITTED
EXT 00000 EMAIL Sweep OMITTED
FAX ( ) e8e-2e00 SITE CONTACT Scarify OMITTED
EMAIL PHONE ( ) 900-0000 Floor Prep OMITTED
OcIP NO EXT 20808 Overtime OMITTED
P&P Bonds NO ENAIL Sales Tax OMITTED
Certified Payroll NO ARCHITECT NBB)
Ceramic ork NO CONTACT
Pattern Match NO PHONE (617) 378-4800
USER FIELD NO EXT 90000
EMAIL
PLAN DATE 05/23/2022
PLAN LOC
PLAN SCALE
Book Date Bond $$
Contract Amt Tax $$
Est Cost Misc $$
E.G.P Overhead $$
E.G.P % Total Sell
Est Man Days Billing Status
Labor $$ Sub Con $$
Material $$ Freight $$
Job Numer Customer PO
LAST EDIT bak DATE 07/14/22
000002
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Maureen C FO000 476
From:
Sent:
Jon B
Friday, May 20, 2022 12:14 PM ty bos 6/7
To: Maureen C
Cc: Alan M
Subject: FW: Request for budgeting: MGH-Cambridge Street Project - Fit...
Hello Maureen
Can you please help me set this up. Bid is due June 10"
Thank you!
Jon
From: Keith Zybert (Walsh Brothers Inc)
Sent: Monday, May 16, 2022 7:48 PM
To: Jon B
Subject: Request for budgeting: MGH-Cambridge Street Project - Fit...
{This email originated from outside your Organization}
& BUILDINGCONNECTED
Turner
Construction Company
Keith Zybert from Turner Construction Company has requested budget pricing on
NIGH-Cambridge Street Project - Fitout -
Budgeting
te fp: and
000003
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Already know if Capital Carpet & Flooring Specialist, Inc. will submit a
budget? Let Keith Zybert at Turner Construction Company know:
~
Bidding Not Bidding Not Sure
Project Details
Location: Boston, MA, United States of America
The Project Site includes 2 parcels within MGH’s main campus. The 4B parcel is
bounded by Cambridge Street, Blossom Street, Parkman Street and North Anderson
Street and includes ap...
Client Details
a
‘\ Lead: Keith Zybert
(— “ Estimator
+ kzybert@walshbrothers.com
Weta aT Walsh Brothers Inc
2 Seaport Ln, 2, Boston, MA 02210, USA
ao — - ~
www. buildingconnected.com support@buildingconnected.com
© Copyright 2022 BuildingConnected.com. All Rights Reserved
925 Mission St, San Francisco, CA 94103
000004
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
J on B
Senet SPST LE SAT ST TES
From: Peter Ruecker
Sent: Thursday, July 07, 2022 1:21 PM
To: jon B
Ce: Wendy Mannion
Subject: RE: MGH Cambridge St - 4B and Parkman Buildings - Architect: NBJJ
Attachments: installation_guide_0121.pdf; nora_dryfix_ed_installation_instructions_0721 cpdf
{This email originated from outside your Organization}
Hi Jon,
Cambridge St
Really nice catching up with you today. Please carry the following pricing (good until 12/31/2022) for MGH
~4B and Parkman Buildings
or any
AC MR 95 {acrylic) can be used for most applications except over non porous / non absorptive substrates,
procedural rooms like ~ OR’s, Cath Labs, iR, EP Lab, Hybrid OR
Dryfix 750 Tape and Dryfix ED (conductive) should be used in procedural rooms. My understanding is that the Hybrid
tape.
OR’s, Cath Labs, IR, EP Labs are getting Grano ED — should be installed using Dryfix ED conductive
rooms,
We only recommend weld for procedural areas, Isolation rooms, wet areas. For example corridors, patient
nurses stations don’t require welded flooring.
Don't hesitate to reach out if you have any questions.
norament grano
39.53" x 39.53” x 3.5mm tile
Sold by the tile
hitos://www.nora.com/us/products/norament-grano
i re 3mm
Tiles: 24" x 24” tile; (10) tiles/box (40sf/box) **sold per box™*
Roll: 39.37’ x 48” (full rolls only)
hitps:-/Avww.nora.com/us/products/noraplan-environcare
*Sold per box**
hitps:/iwww,.nora.com/us/products/noraplan-valua
19 ed (static dissipative
39.53" x 39.53" x 3.5mm te
000005
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Sold by the tile
hitp:/Awww.nora.com/us/preducts/flooring/special-application-floor ings/product/grano-ed/
ii i: ae
id weld ta:
See attached product data sheet
aNo foot traffic for 12 hours; no rolling loads for 72 hours
95% RH limit in an enclosed system (confirmed vapor retarder present when installing on or below grade)
Requires porous, clean substrate per ASTM F 710
Open time of 15-25 minutes with working time of 35 minutes maximum
Flooring must be placed into adhesive semi-wet
si i ae
Follow nora Installation Instructions
Can be installed over non porous substrates
Follow nora installation instructions
ae as sensitive - “best —_ for immediate traffic
jlows for immediate traffic
when tested per ASTM F 2170
Can be installed over non-porous substrates
Prepare substrate per ASTM F 710
Includes Copper Grounding Strip
iii —_ -
4' tread is actually 50.59"
5' tread is actually 63.4"
6 tread is actually 78.7"
http://www. nora.com/us/products/stairireads/norament-stairtreads/product/grano-stairtreads/
coo
Nor
Sold by the roll
Allows for immediate foot traffic
000006
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
hitov/Mwww.nora.com/us/products/stairtreads/stair-accessories/product/stepfix/
i
* 3mm or 3.5mm
x rol "sold per fo}
http://www. nora. com/us/products/rubber-flooring-accessories/product/sanitary-base/
i- a
Tape for 2” toe of sanitary base
http:/Awww.nora.com/us/products/rubber-flooring-accessories/nora-adhesives/nora-basefix/
Tape for vertical portion of sanitary base
http:/Awww.nora.com/us/products/rubber-flooring-accessories/nora-adhesives/nora-basefix/
Pricing good until 12/31/2022
Best regards,
Peter Ruecker
Account Executive
Boston, MA
nora by interface”
9 Northeastern Blvd. // Satem, NH 03079
Mobile: (857) 234-1449
Phone: (600) 332-NORA
Fax: (603) 894-6615
\Ore Com
Email: peter. ruecker@nora.com
hittp:fAwaw.nora.com | Linkedin | YouTube | Twitter
From: Jon B
Sent: Monday, June 27, 2022 4:45 PM
To: Peter Ruecker
Subject: MGH Cambridge St - 48 and Parkman Buildings - Architect: NBJJ
Hello Peter
Buildings -
Hope all is well my friend, | am getting budgets together for the MGH Cambridge St - 4B and Parkman
Architect: NBJJ
000007
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
RT1 - RTRE1 - Nora - Norament Grano - 3 Colors TBD - 40"x40" Cold Weld
RT2- RIRF2 - Nora - ‘Noraplan Environcare fe ~ TED 24"x24" Cold
Weld__
RT4 - RIREA- Nee Nerapiah Valua 2 Colors 780 -48x16" Cold Weld
RT1- SDRTRF1 - a Norament Grano Static.ie Disipate 2 Colors TBD -
40"x40" Cold Weld
$T1- RST1 - 5’ Rubber: Stair Tread - Nora - Match Adjacent Color
RB4-1CB1-6" Sanitary Cove Base - Nora - Match. Adjacent Floor - 2 Colors
Can you please help me with material pricing when you get the change.
Thank you!
Jon
Jon Bak
Project Executive/Contract Sales
64 industrial Way, Wilmington, MA 01887
Cell: 617-256-7177 Office: 781-935-9430
jonb@capitalcarpetonline.com
www.capitalcarpetoniine.com
C4
CARE,
af eel
CLE ENE.
<>
000008
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Capital Carpet Quantity Survey Summary Page 1 of 3
Job: G-0496 MGH Cambridge St. Taxable
Summary Date: 6/22/22 Architect: NBJJ
Due Date: ASAP Alternates: NA
Date of Plans: 3/11/22 Allowances: NA
Addenda: 0 Bonds: % Bid % P+P
Start Date: Complete Date: Sp. Insurance
Floor Level(s): P, 1-16 Subfloor: New Concrete
Moisture Tests: Yes DCAM:
Materials: BUDGET PRICING NET: QTY. ATTIC: U/M
4B BUILDING
(096810 TILE CARPETING
‘| CPT1- CPTT1- interface - Dobby Tile WW890 - Custom Color TBD - 25cm x 1m
WOM1 - CPTT3 - interface - Step Reapeat SR899 - Color TBD - 20"x20"
Carpet to Concrete Transition
1096519 RESILIENT TILE FLOORING
RT1 - RTRF1- Nora- Norament Grano - 3 Colors TBD - 40"x40” Cold Weld
Rubber to Concrete Transition
Resilient to Carpet Transition
ae RT2 - RTRE2 - Nora - Noraplan Environcare- 2 Colors TBD - 24"x24" Cold Weld
Rubber to Terrazzo Transition - Metal Edge Strip
RT4- RTRFA jora - Noraplan Valua - 2 ColorsTBD - 8"x16" Cold Weld
RTA - SORTRFL Norament Grano Static Dissipative - 2 Colors
TBD - 40"x40"
LVT1 - Interface - Level Set Natural Woodgrains - 2 Colors
TBD - 25cm x a,
STi- RST 5! Rubber Stair Tread - Nora - Match Adjacent Color -
RB1-RBRBI ” Millwork Base - Tarkett - Mandalay - Color 780
RB2- RBRB2 * Rubber Cove Ba: ke - Color TBD
RB3 - RBRB3 e Rubber StraightBace. Tarkett - Color TBD
RB4 - iCB1- 6" Sanitary Cove Base - Nora - Match Adjacent Foor 2 ane
1096710 RESINOUS FLOORING
EPOXY - RESC1 - Stonhard - Stontec ERF w/ 1/16" Decorative Flake Finish - Color T!
ICB1 6" Integral Cove Base - Stonhard - Stontec ERF w/ 1/16" Decorative Fla
SEALED CONCRETE
MTG1 - SEALER - Sealed Concrete
1096110 VAPOR MITIGATION AT SLABS
M1G1 - Ardex MC Rapid / Koester VAP 1 2000 / Laticrete Drytek MVB
1093000 TILING
“| _CTF1- PTF1 - Daltile - Keystones - Color TBD, Group 2, Matte - 2"x2"
t PTB1 - Tile Base Cove C-833
Date Printed: 6/29/2022 000009
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Capital Carpet Quantity Survey Summary Page 2 of 3
PTB1 Outside Corner (Wrap Piece) SC-813
PTB Inside Corner CB-813
MES1 - Tile Transition - Schluter - SCHIENE - Satin Anodized Aluminum
Waterproofing Membrane
CTW1 - MWT1- Daltile - Color Wave - Color TBD, Matte - 1"x6" Mosaic
CTW1 - PWT1 - Dalti Color Wheel Linear - Color TBD, Glazed - 4"x12"
Wall Tile Cap Trim - Not Specified - Carried Schluter
Wall Tile Vertical Edge Trim - Not Specified - Carried Schluter
CTW2.- Filo - Color TBD - im x3m_
PWT2 - Crossville - Laminam
‘CTW3 - PWTS - Casalgrande Padana - ArchitectureCo Color TBD, Natural Honed - Tis
Waterproofing Membrane at Shower Walls
4 - Casalgrande Padana - Architecture Coll. Color TBD, Natural Honed - 12"x12'
Grout: Laticrete - SpectraLock Pro
PARKMAN BUILDING
1096810 TILE CARPET! iNG
COIL: terface by Tile WW890 - Custom Color TBD - 25¢1
af WOM ~ Interface “Step Reapeat SREOO - Color TBD - 20°x20'
Carpet to Concrete Transition
1096519 RESILIENT TILE FLOORING
{RTL RTRE Nora Ss TBD - 'x40" Cold Wel
Rubber to Concrete Transition
Resilient to Carpet Transition
RI2- RT plan Environca: 2 Colors TBD - 24"x24" Cold Weld
Rubber to Terrazzo Transition - Metal Edge Strip
4- ‘RE ora - Norapian Vai 2 Col TBD - 48"xi6" Cold Weld
SDRIRI t Gra ive ‘olors TBD - 0°40"
Vid - Interface et Natural Woodgra Col TBD - 25cm x im
RSTA RubberSti Te Nora - Match Adja lor
itlwork Base - Tark - Mandala
RBZ RE? rkett - Col
RB3 - RBRBS Rubber StraightBase rkett - Color TBD
84 -1CBi itary Cove Base ra - atch Adjace! oor
1096416 WOOD BLOCK FLOORING —
— WO2~ WDFLR2 - Parklex Prodema - Taco: Sand ak Size Tap
Wood Nosing
424816 ENTRANCE FLOOR GRILLES
EGi -EFG1- C/S ~Gridline G6 - 304 Saree: Steel Anh
Frames
Sizes: 9'5"x37'3" / 10'x34'7"
Date Printed: 6/29/2022 000010
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Capital Carpet Quantity Survey Summa Page 3 of 3
1096710 RESINOUS FLOORING
EPOXY - RESC1 - Stonhard - Stontec ERF w/ 1/16" Decorative Flake Finish - Color TB
ICB1 6" Integral Cove Base - Stonhard - Stontec ERF w/ 1/16" Decorative Fla!
BEALED CONCRETE
~ MTG1 - SEALER- Sealed Concrete”
1096110 VAPOR MITIGATION AT SLABS
MTG1 - Ardex MC Rapid / Koester VAP 1 2000 / Laticrete Drytek MVB
1093000 TILING
& _ CTFL- PTF - Daltile - Ree ‘Color TBO, Groups: Matte = 2"x2"
PTB1- Tile Base Cove C-833
PTB1 Outside Corner (Wrap Piece} SC-813,
PTB1 Outside Corner (End Piece) SCRL-833
PTB Inside Corner CB-813
MES1 - Tile Transition - Schluter - SCHIENE - Satin Anodized Aluminum
Waterproofing Membrane
CTW1- MWT1 - Daltile - Color Wave - Color TBD, Matte - 1"x6" Mosaic
x2
CPW1 - PWT: Daltile Wheel Linear - olor TBD, Glaze:
Wall Tile Cap Trim - “Not Specified - Carried Schluter
Wall Tile Vertical Edge Trim - Not Specified - Carried Schluter
CTW2 - PWT? - Crossville - Laminam Filo - ColorTBD- Im x 3m__
CTW3- PWT3 ~ salgrande Padana - Architecture ‘olor TBD, Natural | Honea 2x24
Waterproofing Membrane at Shower Walls
CTW4 - PWT4 - Casalprande Padana - Architecture
Coll. - Color TBD, Natural Honed - 12"x12]
Grout: Laticrete - SpectraLock Pro
ss snes srt es
Bid To: urner Estimate #: GO000496
Budget
Attic Stock: 3% Attic Estimator: Sean Steadman ed
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Notes, Inclusions/Exclusions:
Date Printed: 6/29/2022 000011
Date Filed 6/17/2024 5:50 PM
Superior Court - Middlesex
Docket Number 2381CV01682
Jon B ze SES IS EEE TEI IT IIE ELS ITE TEES
_ esc
From: Megan Stred
Sent: Wednesday, June 29, 2022 8:09 AM
To: Jon B
Subject: Re: MGH Cambridge
Preview
Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 26 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 2381CV01682 JON BAK, RECEIVED Plaintiff, 6/17/2024 v HEARING REQUESTED CAPITAL CARPET AND FLOORING SPECIALISTS, INC., Defendants. OPPOSITION TO PLAINTIFF’S EMERGENCY MOTION FOR PROTECTIVE ORDER AND DEFENDANTS’ REQUEST FOR FEES No Emergency. Perhaps the most remarkable aspect of Plaintiff Jon Bak’s emergency motion is its use of “spurious,” “bad faith,” and other baseless allegations against the undersigned’s commonplace evidence-preservation request.! Nor are there any “emergency” circumstances present. Bak — through a telephone conference among counsel — was informed on or about June 7, 2024 that Capital Carpet was unaware of additional non-parties that would require an evidence-preservation request. Bak’s Misrepresentations. Bak’s motion also (i) misrepresents his involvement while employed by Capital Carpet with a project at Massachusetts General Hospital (the “MGH Project”) managed by a joint venture of Walsh Brothers, Inc. and Turner Construction Co. (the “MGH Joint Venture”); (ii) misrepresents earlier comments Mr. Marrama made to Turner Construction about the scope of Bak’s post-employment restrictions; and (iii) mispresents Capital Carpet’s litigation activities and motivations. ' A copy of this letter is attached as Exhibit A. mr Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Fee Request. It is troubling that any litigant would file an emergency motion and affidavit with the Court containing the misrepresentations found in Bak’s motion. In particular, Bak submitted an affidavit which states: “I am not aware of any discussions, budgeting or bidding on the Turner/MGH project during my employment with Capital.” Exhibits A and B to this Opposition establish that Bak’s statement is false. While at Capital Carpet, Bak worked on the MGH Project and submitted a bid on behalf of Capital Carpet. Accordingly, Capital Carpet respectfully requests an award of attorneys’ fees associated with opposing Bak’s motion. If additional factual development would assist the Court in considering this fee request, then Capital Carpet respectfully requests an evidentiary hearing at the Court’s earliest convenience. FACTUAL BACKGROUND Founded in 1991 by Mark Marrama, Capital Carpet has served the New England community by providing quality floor covering services to various commercial and institutional customers. Paper No. 13, Am. Countercl. § 8. Capital Carpet operates in a highly competitive market. There are other companies providing and selling similar services and competing for the same customers, projects, vendor relationships, and market share as Capital Carpet—including Select Tile, Marble & Flooring, LLC (“Select Tile”). /d. 4 9. Capital Carpet’s success in the market is dependent on its ability to protect its confidential, proprietary, and trade secret information, and to use such information when preparing competitive estimates and project bids. Am. Countercl. §§ 10, 12, 13. Capital Carpet’s data on specific types of projects for various customers—including labor requirements, labor production rates, materials, and pricing—allow Capital Carpet to develop accurate, competitive, and profitable estimates and bids. Jd. § 14. Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Bak’s Employment with Capital Carpet Capital Carpet first hired Bak as an Account Manager in December 2016. Am. Countercl. { 18. Bak was provided with access to, and he made use of, Capital Carpet’s confidential business information and trade secret information (collectively, “Confidential Information”) in connection with estimating, bidding, and securing flooring contracts for existing and new customers. /d. § 23. Bak signed a Confidentiality and Non-Solicitation Agreement (the “Agreement”) with Capital Carpet. /d. § 20. The Agreement defines and protects Confidential Information and prohibits Bak from soliciting certain Capital Carpet customers or prospective customers for one year after the end of his employment. /d. §{] 21, 22. In March 2022, Capital Carpet offered Bak a promotion to Project Executive/Corporate Sales Team Manager; he accepted and re-affirmed the Agreement. /d. § 25. In connection with his new position, Bak had access to Confidential Information and he was provided with an iPhone mobile device (the “Device”). /d. {{ 26, 27. Bak’s Involvement with the MGH Project In May 2022, Bak prepared a bid for Capital Carpet on the MGH Joint Venture’s project, called the MGH Cambridge Street Project, i.e., the MGH Project. As entered in Capital Carpet’s system, Bak prepared the MGH Project bid for “Walsh Brothers.”? See Exhibit A, Bid documents and correspondence (redacted). Bak’s bid on this project was based on Confidential Information, including pricing information from one of Capital Carpet’s flooring product suppliers. /d. All while employed by Capital Carpet, Bak obtained pricing, prepared budget information, and prepared a project estimate for the MGH Project. /d. He also submitted a bid to Turner on behalf of Capital Carpet for the MGH Project. Exhibit B, MGH Cambridge Street ? There is a factual dispute about whether the MGH Joint Venture is subject to the exclusion in the non- solicitation provision in the Agreement concerning Turner Construction. Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Project Bid to Turner Const dated Jul. 14, 2022. Incredibly, Bak’s affidavit submitted with his motion omits this material information. Instead, Bak states under penalty of perjury that: “Lam not aware of any discussions, budgeting or bidding on the Turner/MGH project during my ployment with Capital.” Aff. of J. Bak J 4 (Jun. 14, 2024). Exhibits A and B to this Opposition expose Bak’s statement as false. Bak Abruptly Resigns from Capital Carpet In early February 2023, Bak printed a report (the “Report”) which detailed the various projects he had worked on for two Capital Carpet customer relationships: Lee Kennedy Co., Inc. and Turner Construction. Am. Countercl. § 28. The Report included contract amounts, labor and material costs, and profit margins for each project. /d. § 29. This information is not publicly available, and it would be valuable to Capital Carpet’s competitors when bidding against Capital Carpet. /d. In connection with his Capital Carpet employment, there was no business reason for Bak to create and print the Report. /d. { 30. When Bak left Capital Carpet, he did not return any copies of the Report. On Friday, February 17, 2023, Bak forwarded a bid invite for a project entitled “Boston Properties 300 Binney — Base Building” as well as the Agreement and his March 4, 2022 offer letter to an executive at Select Tile. Am. Countercl. § 31. There was no business reason for Bak to provide this information to Select Tile, a direct competitor of Capital Carpet. /d. On the same day, Bak also printed a pricing cover sheet for a Capital Carpet bid that he had worked on, titled “Fidelity Pier II Rebid.” /d. ¥ 32. As with the Report, Bak did not return his copies of the Fidelity Pier II Rebid in connection with his departure from Capital Carpet. Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Bak’s Post-Employment Activities On Tuesday, February 21, 2023, while Capital Carpet’s President was travelling outside of the Commonwealth, Bak abruptly resigned his employment and began working for Select Tile. Am. Countercl. § 33. Without authorization from Capital Carpet, Bak erased and wiped the Device. /d. § 34. Bak also asked his assistant at Capital Carpet to alter her login to a Capital Carpet software account to monitor, without authorization, Capital Carpet’s financial information. Id. § 36. In or around April 2023, Bak told a Capital Carpet employee that he was working on estimates for Select Tile’s resilient flooring bids. Am. Countercl. § 39. Bak also disclosed that Select Tile had asked him to prepare a “labor production spreadsheet” concerning labor rates for carpet and resilient flooring products. /d. Bak’s knowledge and information about “labor production” on these types of flooring products for various types of customers originated from Capital Carpet’s Confidential Information, including the Report, the Database, and other repositories of Capital Carpet’s proprietary information. /d. By letter dated May 30, 2023, Capital Carpet advised Bak that he was in violation of the Agreement. Am Countercl. § 40. This letter demanded that Bak immediately cease and desist from engaging in such conduct. /d. Nonetheless, Bak continued to use Confidential Information to benefit Select Tile and interfere with Capital Carpet’s business. /d. § 41. For example, Select Tile bid on projects entitled “Fidelity Pier II Rebid,” and “Boston Properties 300 Binney — Base Building Project,” along with a project for Boston Children’s Hospital located in Needham, MA Id. § 42. Bak was directly or indirectly involved with these bids (including preparing estimates) on behalf of Select Tile. /d. Previously, while employed with Capital Carpet, Bak prepared estimates and bids using Capital Carpet’s Confidential Information for those projects. /d. § 43. Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Procedural History and Preservation Letters In response to Capital Carpet’s May 30 letter, supra, Bak preemptively filed this lawsuit. Capital Carpet denies Bak’s allegations under the Wage Act and it filed a counterclaim. As subsequently amended, this Counterclaim asserts two claims against Bak: Breach of Contract (Count I) and Misappropriation in Violation of the Massachusetts Uniform Trade Secrets Act (Count II). Thereafter, Bak moved to dismiss the Counterclaim; a hearing is scheduled for August 23, 2024. In connection with his motion to dismiss, Bak also moved for a stay of discovery concerning the Counterclaim.? In early May 2024, Capital Carpet learned that Bak and Select Tile won the MGH Project. As explained above, this was a project Bak worked on substantively while at Capital Carpet. Thus, on May 21, 2024, the undersigned sent an evidence-preservation notice to the MGH Joint Venture concerning the MGH Project. See Exhibit C, Letter to J. Brosnan and CT Corp. dated May 21, 2024. A few days later, on May 23, 2024, Capital Carpet received the Court’s order staying all discovery concerning the Counterclaim until after the hearing on Bak’s motion to dismiss. Bak’s motion argues that the letter to the MGH Joint Venture somehow violated the Court’s discovery stay. This argument is refuted by the actual chronology: the preservation letter was sent before the Court entered the stay. Moreover, this letter to the MGH Joint Venture is substantively similar to the evidence preservation letter that Capital Carpet previously sent to Select Tile’s 3 Bak’s motion attempts to paint Capital Carpet as “dilatory” in discovery and with filing responsive pleadings. What Bak’s fails to disclose is that during that same time the parties were engaged in settlement discussions in an effort to resolve this dispute. The parties had multiple substantive conversations and exchanged information and relevant documents informally. During this time, the parties acknowledged that litigation resources should be conserved. Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 counsel. See Exhibit D, Letter to J. Lewin dated Oct. 10, 2023. Strangely, Bak’s motion alleges that Capital Carpet never sent such a letter to Select Tile. Pl.’s Mot. at 6 (“... Capital never sent a preservation letter to Select ...”) (emphasis added). ARGUMENT. 1. There Are No Exigent Circumstances Warranting Emergency Relief. There are no “emergency” circumstances here, where Bak — through a telephone conference among counsel — was informed on or about June 7, 2024 that Capital Carpet was unaware of additional non-parties that would require an evidence-preservation request. Bak’s motion should be denied on this basis alone. 2. Bak’s Motion is Premised on Several Misrepresentations. As described above, Bak’s motion has misrepresented his involvement with the MGH Project and the MGH Joint Venture while employed by Capital Carpet. In addition, Bak’s motion misrepresents earlier comments that Mr. Marrama made to Turner Construction about the scope of Bak’s post-employment restrictions. Mr. Marrama never attempted to interfere with Bak’s or Select Tile’s legitimate business activities. As detailed in a contemporaneous letter to Select Tile’s counsel, Capital Carpet explained that Mr. Marrama accurately explained the scope of Bak’s post-employment restrictions, acknowledged that Bak was permitted to work for Select Tile and bid on projects, and expressed disappointment that Turner awarded a project to Select Tile that Bak had bid on while at Capital Carpet: [Mr. Maramma] did have a conversation with Turner Construction Company (“Turner”) and the parties agreed that projects Mr. Bak had already estimated and bid on behalf of Capital Carpet — using Capital Carpet’s confidential and proprietary business information — would remain in place. In its discussions with Turner, Capital Carpet was clear that Mr. Bak was allowed to work for a competitor and allowed to bid on new projects. Capital Carpet did have a subsequent conversation with Turner, during which it expressed disappointment that a project Mr. Bak had bid while at Capital Carpet was later awarded to Select Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Tile. As you are aware, there is nothing unlawful or improper about these types of conversations. Exhibit D, Letter to J. Lewin dated Oct. 10, 2023 (emphasis added). Finally, Capital Carpet’s litigation activities and motivations are detailed above. Bak’s motion deploys terms like “spurious,” “bad faith,” and other baseless allegations against the undersigned’s commonplace evidence-preservation request. None of these allegations are true or supported by the facts. Capital Carpet’s earlier experiences with Select Tile and Bak using Confidential Information, along with Bak’s unauthorized deletion of the Device and other conduct, amplified Capital Carpet’s concerns about obtaining relevant evidence related to its Counterclaim. As one commentator has observed, an evidence-preservation letter “... is a wise precursor to the obligations imposed by the federal, state, and local rules of procedure imposing discovery ‘meet and confer’ obligations. ... The preservation letter plays a key role in a court’s consideration of whether a party acted in bad faith in connection with the irreparable loss of data that should have been preserved.” Craig Ball, The Perfect Preservation Letter at 2 (2020).4 Bak’s motion argues, incorrectly, that the evidence-preservation letter to the MGH Joint Venture was sent after the Court’s order of May 23, 2024, staying discovery. As detailed above, the discovery stay was ordered after the undersigned sent that letter. Bak also argues that the letter served no legitimate purpose. That position is contradicted by the fact that Bak prepared bids and estimates for the MGH Project while a Capital Carpet employee; and then did the same for his new employer. For that reason, the MGH Joint Venture likely possesses relevant documents and communications that must be preserved. * Available at http://www. craigball.com/Perfect_Preservation_Letter_Guide_2020.pdf (last viewed Jun. 17, 2024). Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 3. Capital Carpet’s Fee Request. Capital Carpet respectfully requests an award of attorneys’ fees associated with opposing Bak’s motion, due to the factual misrepresentations detailed above. CONCLUSION AND HEARING RE UEST. By reason of the above, this Court should deny Bak’s motion for a protective order and award Capital Carpet its fees incurred in connection with this opposition. To the extent an evidentiary hearing would assist the Court in considering Capital Carpet’s fee request, Capital Carpet respectfully requests such hearing at the Court’s earliest convenience. Respectfully submitted, CAPITAL CARPET AND FLOORING SPECIALISTS, INC. and MARK MARRAMA By their attorneys, /s/ Matthew P. Horvitz Matthew P. Horvitz (BBO # 664136) Julius A. Halstead (BBO # 705428) GOULSTON & STORRS PC One Post Office Square, 25" Floor Boston, Massachusetts 02109 (617) 482-1776 mhorvitz@goulstonstorrs.com Dated: June 17, 2024 jhalstead@goulstonstorrs.com Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 CERTIFICATE OF SERVICE Thereby certify that on June 17, 2024, a true copy of the above document and attached exhibits was served by electronic mail upon the following counsel of record: Todd Jarrett Bennett, Esq. Michaela May, Esq. Bennett and Belfort P.C. 24 Thorndike Street, Suite 300 Cambridge, MA 02141 tbennett@bennettandbelfort.com mmay@bennettandbelfort.com /s/ Matthew P. Horvitz 10 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 EXHIBITS Table of Contents Exhibit A, Bid correspondence and documents Exhibit B, MGH Cambridge Street Project Bid to Turner Const 23 Exhibit C, Letter to J. Brosnan and CT Corp 30 Exhibit D, Letter to J. Lewin 33 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 EXHIBIT A 000001 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex t er 2381CV01682 Bid Print PAGE 1 DATE 65/20/24 12:23 RANGE CAPITAL CARPET & FLOORING 60000496 ~ 60200496 BID # 60000496 02 222 MGH CAMBRIDGE STREET PROJECT Job > BID TYPE BASE B10 STATUS OPEN LABOR BID DATE 05/23/2022 DUE DATE 06/10/2022 LAB RATE SALENAN 28 JON BAK ESTIMATOR ss ZONE CUST # 92438 TAKE OFF TIME 2080 WEEKEND NAME WAL STi ee MARKET HOSPITAL Mu 20.00 ADR 1 ATTN: ACCOUNTS PAYABLE MAJOR PROD TAX STATE MA ADR 2 210 COMMERCIAL STREET PROJECT NGH CAMBRIDGE STREET PROJECT COUNTY ay BOSTON DESCRIPTION MAT TAX U 6.2500 STATE MA B TAX N ZIP 02109 S TAX N CONTACT 1 LOCATION MASS GENERAL HOSPITAL PHONE ( ) 200-2000 CAMBRIDGE STREET Start Quality EXT 00000 Start Date FAX ( ) 080-2000 PROJECT MANAGER Comp Date EMATL PHONE ( ) e82-2000 Handle Furniture OMITTED CONTACT 2 EXT 02000 Demolition OMITTED PHONE ( ) 686-8200 FAX ( ) 08e-2000 Disposal OMITTED EXT 00000 EMAIL Sweep OMITTED FAX ( ) e8e-2e00 SITE CONTACT Scarify OMITTED EMAIL PHONE ( ) 900-0000 Floor Prep OMITTED OcIP NO EXT 20808 Overtime OMITTED P&P Bonds NO ENAIL Sales Tax OMITTED Certified Payroll NO ARCHITECT NBB) Ceramic ork NO CONTACT Pattern Match NO PHONE (617) 378-4800 USER FIELD NO EXT 90000 EMAIL PLAN DATE 05/23/2022 PLAN LOC PLAN SCALE Book Date Bond $$ Contract Amt Tax $$ Est Cost Misc $$ E.G.P Overhead $$ E.G.P % Total Sell Est Man Days Billing Status Labor $$ Sub Con $$ Material $$ Freight $$ Job Numer Customer PO LAST EDIT bak DATE 07/14/22 000002 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Maureen C FO000 476 From: Sent: Jon B Friday, May 20, 2022 12:14 PM ty bos 6/7 To: Maureen C Cc: Alan M Subject: FW: Request for budgeting: MGH-Cambridge Street Project - Fit... Hello Maureen Can you please help me set this up. Bid is due June 10" Thank you! Jon From: Keith Zybert (Walsh Brothers Inc) Sent: Monday, May 16, 2022 7:48 PM To: Jon B Subject: Request for budgeting: MGH-Cambridge Street Project - Fit... {This email originated from outside your Organization} & BUILDINGCONNECTED Turner Construction Company Keith Zybert from Turner Construction Company has requested budget pricing on NIGH-Cambridge Street Project - Fitout - Budgeting te fp: and 000003 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Already know if Capital Carpet & Flooring Specialist, Inc. will submit a budget? Let Keith Zybert at Turner Construction Company know: ~ Bidding Not Bidding Not Sure Project Details Location: Boston, MA, United States of America The Project Site includes 2 parcels within MGH’s main campus. The 4B parcel is bounded by Cambridge Street, Blossom Street, Parkman Street and North Anderson Street and includes ap... Client Details a ‘\ Lead: Keith Zybert (— “ Estimator + kzybert@walshbrothers.com Weta aT Walsh Brothers Inc 2 Seaport Ln, 2, Boston, MA 02210, USA ao — - ~ www. buildingconnected.com support@buildingconnected.com © Copyright 2022 BuildingConnected.com. All Rights Reserved 925 Mission St, San Francisco, CA 94103 000004 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 J on B Senet SPST LE SAT ST TES From: Peter Ruecker Sent: Thursday, July 07, 2022 1:21 PM To: jon B Ce: Wendy Mannion Subject: RE: MGH Cambridge St - 4B and Parkman Buildings - Architect: NBJJ Attachments: installation_guide_0121.pdf; nora_dryfix_ed_installation_instructions_0721 cpdf {This email originated from outside your Organization} Hi Jon, Cambridge St Really nice catching up with you today. Please carry the following pricing (good until 12/31/2022) for MGH ~4B and Parkman Buildings or any AC MR 95 {acrylic) can be used for most applications except over non porous / non absorptive substrates, procedural rooms like ~ OR’s, Cath Labs, iR, EP Lab, Hybrid OR Dryfix 750 Tape and Dryfix ED (conductive) should be used in procedural rooms. My understanding is that the Hybrid tape. OR’s, Cath Labs, IR, EP Labs are getting Grano ED — should be installed using Dryfix ED conductive rooms, We only recommend weld for procedural areas, Isolation rooms, wet areas. For example corridors, patient nurses stations don’t require welded flooring. Don't hesitate to reach out if you have any questions. norament grano 39.53" x 39.53” x 3.5mm tile Sold by the tile hitos://www.nora.com/us/products/norament-grano i re 3mm Tiles: 24" x 24” tile; (10) tiles/box (40sf/box) **sold per box™* Roll: 39.37’ x 48” (full rolls only) hitps:-/Avww.nora.com/us/products/noraplan-environcare *Sold per box** hitps:/iwww,.nora.com/us/products/noraplan-valua 19 ed (static dissipative 39.53" x 39.53" x 3.5mm te 000005 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Sold by the tile hitp:/Awww.nora.com/us/preducts/flooring/special-application-floor ings/product/grano-ed/ ii i: ae id weld ta: See attached product data sheet aNo foot traffic for 12 hours; no rolling loads for 72 hours 95% RH limit in an enclosed system (confirmed vapor retarder present when installing on or below grade) Requires porous, clean substrate per ASTM F 710 Open time of 15-25 minutes with working time of 35 minutes maximum Flooring must be placed into adhesive semi-wet si i ae Follow nora Installation Instructions Can be installed over non porous substrates Follow nora installation instructions ae as sensitive - “best —_ for immediate traffic jlows for immediate traffic when tested per ASTM F 2170 Can be installed over non-porous substrates Prepare substrate per ASTM F 710 Includes Copper Grounding Strip iii —_ - 4' tread is actually 50.59" 5' tread is actually 63.4" 6 tread is actually 78.7" http://www. nora.com/us/products/stairireads/norament-stairtreads/product/grano-stairtreads/ coo Nor Sold by the roll Allows for immediate foot traffic 000006 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 hitov/Mwww.nora.com/us/products/stairtreads/stair-accessories/product/stepfix/ i * 3mm or 3.5mm x rol "sold per fo} http://www. nora. com/us/products/rubber-flooring-accessories/product/sanitary-base/ i- a Tape for 2” toe of sanitary base http:/Awww.nora.com/us/products/rubber-flooring-accessories/nora-adhesives/nora-basefix/ Tape for vertical portion of sanitary base http:/Awww.nora.com/us/products/rubber-flooring-accessories/nora-adhesives/nora-basefix/ Pricing good until 12/31/2022 Best regards, Peter Ruecker Account Executive Boston, MA nora by interface” 9 Northeastern Blvd. // Satem, NH 03079 Mobile: (857) 234-1449 Phone: (600) 332-NORA Fax: (603) 894-6615 \Ore Com Email: peter. ruecker@nora.com hittp:fAwaw.nora.com | Linkedin | YouTube | Twitter From: Jon B Sent: Monday, June 27, 2022 4:45 PM To: Peter Ruecker Subject: MGH Cambridge St - 48 and Parkman Buildings - Architect: NBJJ Hello Peter Buildings - Hope all is well my friend, | am getting budgets together for the MGH Cambridge St - 4B and Parkman Architect: NBJJ 000007 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 RT1 - RTRE1 - Nora - Norament Grano - 3 Colors TBD - 40"x40" Cold Weld RT2- RIRF2 - Nora - ‘Noraplan Environcare fe ~ TED 24"x24" Cold Weld__ RT4 - RIREA- Nee Nerapiah Valua 2 Colors 780 -48x16" Cold Weld RT1- SDRTRF1 - a Norament Grano Static.ie Disipate 2 Colors TBD - 40"x40" Cold Weld $T1- RST1 - 5’ Rubber: Stair Tread - Nora - Match Adjacent Color RB4-1CB1-6" Sanitary Cove Base - Nora - Match. Adjacent Floor - 2 Colors Can you please help me with material pricing when you get the change. Thank you! Jon Jon Bak Project Executive/Contract Sales 64 industrial Way, Wilmington, MA 01887 Cell: 617-256-7177 Office: 781-935-9430 jonb@capitalcarpetonline.com www.capitalcarpetoniine.com C4 CARE, af eel CLE ENE. <> 000008 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Capital Carpet Quantity Survey Summary Page 1 of 3 Job: G-0496 MGH Cambridge St. Taxable Summary Date: 6/22/22 Architect: NBJJ Due Date: ASAP Alternates: NA Date of Plans: 3/11/22 Allowances: NA Addenda: 0 Bonds: % Bid % P+P Start Date: Complete Date: Sp. Insurance Floor Level(s): P, 1-16 Subfloor: New Concrete Moisture Tests: Yes DCAM: Materials: BUDGET PRICING NET: QTY. ATTIC: U/M 4B BUILDING (096810 TILE CARPETING ‘| CPT1- CPTT1- interface - Dobby Tile WW890 - Custom Color TBD - 25cm x 1m WOM1 - CPTT3 - interface - Step Reapeat SR899 - Color TBD - 20"x20" Carpet to Concrete Transition 1096519 RESILIENT TILE FLOORING RT1 - RTRF1- Nora- Norament Grano - 3 Colors TBD - 40"x40” Cold Weld Rubber to Concrete Transition Resilient to Carpet Transition ae RT2 - RTRE2 - Nora - Noraplan Environcare- 2 Colors TBD - 24"x24" Cold Weld Rubber to Terrazzo Transition - Metal Edge Strip RT4- RTRFA jora - Noraplan Valua - 2 ColorsTBD - 8"x16" Cold Weld RTA - SORTRFL Norament Grano Static Dissipative - 2 Colors TBD - 40"x40" LVT1 - Interface - Level Set Natural Woodgrains - 2 Colors TBD - 25cm x a, STi- RST 5! Rubber Stair Tread - Nora - Match Adjacent Color - RB1-RBRBI ” Millwork Base - Tarkett - Mandalay - Color 780 RB2- RBRB2 * Rubber Cove Ba: ke - Color TBD RB3 - RBRB3 e Rubber StraightBace. Tarkett - Color TBD RB4 - iCB1- 6" Sanitary Cove Base - Nora - Match Adjacent Foor 2 ane 1096710 RESINOUS FLOORING EPOXY - RESC1 - Stonhard - Stontec ERF w/ 1/16" Decorative Flake Finish - Color T! ICB1 6" Integral Cove Base - Stonhard - Stontec ERF w/ 1/16" Decorative Fla SEALED CONCRETE MTG1 - SEALER - Sealed Concrete 1096110 VAPOR MITIGATION AT SLABS M1G1 - Ardex MC Rapid / Koester VAP 1 2000 / Laticrete Drytek MVB 1093000 TILING “| _CTF1- PTF1 - Daltile - Keystones - Color TBD, Group 2, Matte - 2"x2" t PTB1 - Tile Base Cove C-833 Date Printed: 6/29/2022 000009 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Capital Carpet Quantity Survey Summary Page 2 of 3 PTB1 Outside Corner (Wrap Piece) SC-813 PTB Inside Corner CB-813 MES1 - Tile Transition - Schluter - SCHIENE - Satin Anodized Aluminum Waterproofing Membrane CTW1 - MWT1- Daltile - Color Wave - Color TBD, Matte - 1"x6" Mosaic CTW1 - PWT1 - Dalti Color Wheel Linear - Color TBD, Glazed - 4"x12" Wall Tile Cap Trim - Not Specified - Carried Schluter Wall Tile Vertical Edge Trim - Not Specified - Carried Schluter CTW2.- Filo - Color TBD - im x3m_ PWT2 - Crossville - Laminam ‘CTW3 - PWTS - Casalgrande Padana - ArchitectureCo Color TBD, Natural Honed - Tis Waterproofing Membrane at Shower Walls 4 - Casalgrande Padana - Architecture Coll. Color TBD, Natural Honed - 12"x12' Grout: Laticrete - SpectraLock Pro PARKMAN BUILDING 1096810 TILE CARPET! iNG COIL: terface by Tile WW890 - Custom Color TBD - 25¢1 af WOM ~ Interface “Step Reapeat SREOO - Color TBD - 20°x20' Carpet to Concrete Transition 1096519 RESILIENT TILE FLOORING {RTL RTRE Nora Ss TBD - 'x40" Cold Wel Rubber to Concrete Transition Resilient to Carpet Transition RI2- RT plan Environca: 2 Colors TBD - 24"x24" Cold Weld Rubber to Terrazzo Transition - Metal Edge Strip 4- ‘RE ora - Norapian Vai 2 Col TBD - 48"xi6" Cold Weld SDRIRI t Gra ive ‘olors TBD - 0°40" Vid - Interface et Natural Woodgra Col TBD - 25cm x im RSTA RubberSti Te Nora - Match Adja lor itlwork Base - Tark - Mandala RBZ RE? rkett - Col RB3 - RBRBS Rubber StraightBase rkett - Color TBD 84 -1CBi itary Cove Base ra - atch Adjace! oor 1096416 WOOD BLOCK FLOORING — — WO2~ WDFLR2 - Parklex Prodema - Taco: Sand ak Size Tap Wood Nosing 424816 ENTRANCE FLOOR GRILLES EGi -EFG1- C/S ~Gridline G6 - 304 Saree: Steel Anh Frames Sizes: 9'5"x37'3" / 10'x34'7" Date Printed: 6/29/2022 000010 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Capital Carpet Quantity Survey Summa Page 3 of 3 1096710 RESINOUS FLOORING EPOXY - RESC1 - Stonhard - Stontec ERF w/ 1/16" Decorative Flake Finish - Color TB ICB1 6" Integral Cove Base - Stonhard - Stontec ERF w/ 1/16" Decorative Fla! BEALED CONCRETE ~ MTG1 - SEALER- Sealed Concrete” 1096110 VAPOR MITIGATION AT SLABS MTG1 - Ardex MC Rapid / Koester VAP 1 2000 / Laticrete Drytek MVB 1093000 TILING & _ CTFL- PTF - Daltile - Ree ‘Color TBO, Groups: Matte = 2"x2" PTB1- Tile Base Cove C-833 PTB1 Outside Corner (Wrap Piece} SC-813, PTB1 Outside Corner (End Piece) SCRL-833 PTB Inside Corner CB-813 MES1 - Tile Transition - Schluter - SCHIENE - Satin Anodized Aluminum Waterproofing Membrane CTW1- MWT1 - Daltile - Color Wave - Color TBD, Matte - 1"x6" Mosaic x2 CPW1 - PWT: Daltile Wheel Linear - olor TBD, Glaze: Wall Tile Cap Trim - “Not Specified - Carried Schluter Wall Tile Vertical Edge Trim - Not Specified - Carried Schluter CTW2 - PWT? - Crossville - Laminam Filo - ColorTBD- Im x 3m__ CTW3- PWT3 ~ salgrande Padana - Architecture ‘olor TBD, Natural | Honea 2x24 Waterproofing Membrane at Shower Walls CTW4 - PWT4 - Casalprande Padana - Architecture Coll. - Color TBD, Natural Honed - 12"x12] Grout: Laticrete - SpectraLock Pro ss snes srt es Bid To: urner Estimate #: GO000496 Budget Attic Stock: 3% Attic Estimator: Sean Steadman ed cose Notes, Inclusions/Exclusions: Date Printed: 6/29/2022 000011 Date Filed 6/17/2024 5:50 PM Superior Court - Middlesex Docket Number 2381CV01682 Jon B ze SES IS EEE TEI IT IIE ELS ITE TEES _ esc From: Megan Stred Sent: Wednesday, June 29, 2022 8:09 AM To: Jon B Subject: Re: MGH Cambridge