Preview
@
COMMONWEALTH OF MASSACHUSETTS
DUKES, ss. Superior Court Department
of the Trial Court
Civil Action No. 1774 CV 00057
)
TEN PERSONS OF THE COMMONWEALTH, | )
Plaintiffs, )
)
v. )
: )
SQUIBNOCKET FARMS, INC. )
and C. WHITE MARINE, INC., )
Defendants. )
)
DEFENDANT C. WHITE MARINE, INC.'S OPPOSITION
TOPLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
NOW COMES the Defendant, C. White Marine, Inc. ("C. White"), through counsel, and
hereby opposes the Plaintiffs Motion for Temporary Restraining Order and Preliminary
Injunction ("Motion").
In opposition thereto, C. White states, as the newest participant in this matter, it is not
privy to the apparently lengthy history of litigation and administrative actions between the
Plaintiffs and Squibnocket Farms, Inc. ("Association"), all apparently unsuccessful for the
Plaintiffs, but can comment on the significant harm to C. White and its employees if the subject
construction project is halted, which harms include C. White laying off multiple employees due
to lack of work, hundreds of thousands of dollars in increased costs for the completion of the
project (or simply losses if the project never resumes), impacts to C. White's ability to secure
contracts while this project remains in judicial limbo, and significant delays in the completion of
the subject project. : FILED
. - SUPERIOR COURT NTY
In further opposition to the Plaintiffs' Motion, C. White states as follegusty OF DUKES COU!
oct 18 2017
REC'D
CLERKIL FACTS
On or about July 21, 2017, the Association, as owner, entered into a written contract or
agreement ("Contract") with C. White, as contractor, for the-contract or project known as the
Squibnocket Causeway and Approach Roadway ("Project") in Chilmark, Massachusetts.
Pursuant to the Contract, C. White is to construct an at-grade roadway and an elevated causeway
in accordance with plans and specifications developed for the Association by Haley & Aldrich,
Inc. ("HAI"). Exhibit A, Affidavit of Lawrence G. White in Opposition to Plaintiffs' Motion for
Preliminary Injunction ("White Affid.") at 6. Attached to the Contract are multiple documents
including, but not limited to, a May 17, 2016 report from the Massachusetts Department of
Fisheries and Wildlife, Martha's Vineyard Commission Decision No. DRI 338-M2, an Order of
Conditions issued by the Town of Chilmark Conservation Commission, and a December 15,
2016 Superseding Order of Conditions issued by the Massachusetts Department of
Environmental Protection ("MassDEP"), all of which approve of the Project. Id. at { 7.
At this time, C. White has fully mobilized to the site of the Project in Chilmark and
commenced construction. White Affid. at 9. Specifically, C. White has dispatched a crane, six
(6) truckloads of materials and equipment, and a work crew who are presently stationed in a
rental home (for which C. White has paid $6,400.00) on the island of Martha's Vineyard. Id. at {
10. If the relief requested by Plaintiffs is granted, C. White will either have to stand idle in place
at a cost to the Association of $4,365.00 per day or will have to demobilize, lay off the workers
assigned to the Project, and bring all of its equipment and materials back to storage in East
Boston, Massachusetts. Id. at f§ 11-14. Remaining idle has a defined, but high, cost.
Demobilization is costly, time consuming, and complex. C. White would be required to
dismantle the crane that is on-site; truck all of its materials and equipment to Vineyard’ Havenwhere the equipment and materials would be loaded on to barges; ship the materials and
equipment to New Bedford, Massachusetts; where the equipment would be trucked to East
Boston, Massachusetts. Id. at | 13. C. White estimates this process would take its crews
approximately ten (10) days. Id. If the Project thereafter resumes,’ the same process would
occur in reverse. Id. at 15. C. White estimates an additional cost of $150,000.00 for the
additional demobilization and remobilization costs. Id. at § 16. In addition, C. White would lose
the anticipated revenue from the Project, estimated to be approximately $1,500,000.00. Id. at {
17.
Il LEGAL STANDARD AND ARGUMENT
Preliminary injunctions and temporary restraining orders are subject to similar legal
standards. Neither should issue unless there is no adequate remedy at law and the moving party
demonstrates: (1) a reasonable likelihood of success on the merits; (2) irreparable harm to the
moving party in light of the moving party's chance of success on the merits; (3) the harm to be
suffered by the moving party outweighs the harm to the non-moving party; and, if applicable, (4)
the grant of relief will not adversely affect the public. John T. Callahan & Sons, Inc. v. City of
Malden, 430 Mass. 124, 131-32 (1999), Packaging Industries, Inc. v. Cheney, 380 Mass. 609,
616-18 (1980). Under the similar federal rule, the likelihood of success is "the main bearing wall
of the four-factor framework." Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16
(1st Cir 1996).
' There may be additional costs depending on when the Project resumes which C. White is unable to calculate. For
example, if the Project resumes during the busy tourist season on Martha's Vineyard, C. White expects significant
delays due to increased activity in the.area of the Project, limitations may be imposed on the use of.certain vehicles
or construction equipment, the hours C. White is permitted to work, and C. White's ability to find suitable housing
for its employees would not only be hampered by greater competition in the rental market, but the costs of the rental
could be expected to substantially increase. Exhibit A, White Affid. at { 18.A. Plaintiffs are Unlikely to Succeed on the Merits
C. White is not privy to the multiple prior efforts by the Plaintiffs to stall or delay the
Project but concurs with the Association that all relevant agencies have reviewed the Project and
its potential environmental impacts, concluded the Project would result in a net benefit to the
environment, and approved the Project. Based on these numerous and repeated approvals, C.
White is ready, willing, and able to perform and has, in fact, begun performance.
B. Plaintiffs Cannot Demonstrate Irreparable Harm
Again, C. White concurs with the Association that the Plaintiffs have failed to
demonstrate any irreparable harm. It appears to C. White that multiple agencies responsible for
protecting and preserving the environment have reviewed the Project and determined there will
be a net benefit to the environment.
C. White is an experienced marine contractor and is more than capable of completing the
Project in accordance with the various requirements of such agencies, as it has done repeatedly in
the past — including on projects for the Town of Chilmark. Exhibit A, White Affid. at {J 4-5.
Cc. The Balance of Harms Favors the Defendants
C. White submits the balance of harms strongly favors the Defendants. The economic
costs of delay are substantial. Id. at {{] 10-18. Construction delays, increased costs, and the
potential for loss of financing have been found to constitute irreparable harm in other cases
brought under Mass. Gen. L. c. 214, § 7A. See Newman v. City of Malden, No. 98-2754, 1998
Mass. Super. LEXIS 92, *11 (Super. Ct., Middlesex Cty., Jun. 16, 1998) (potential impacts to the
City of enjoining construction included increased costs, delay of the overall program to construct
new schools, and the potential loss of state funding).In this case, C. White has fully mobilized to the site of the Project, including the delivery
and assembly of heavy equipment and several truckloads of materials and equipment. Exhibit A,
White Affid., at {§ 9-10. The cost to idle C. White's equipment and crew at ‘the Project site
exceeds $20,000.00 per week. Id. at { 11. The cost to remove, store, and ultimately remobilize
the materials and equipment is estimated at $150,000.00 and would take C. White a total of
approximately ten (10) days each way resulting in a minimum delay of twenty (20) days. Id. at
{I 12-16. C. White would, at least temporarily and possibly permanently, lose approximately
$1,500,000.00 in revenue for its performance of the Project. Id. at { 17. Depending on the time
the Project resumes, there may be additional costs, such as increased housing expenses for C.
White's work crew, or delays caused by increased activity in the area of the Project or new
restrictions imposed by relevant authorities concerning the use of equipment or machinery during
the busy tourist season which C. White cannot quantify. Id. at { 18. Finally, C. White would
have to lay off the work crew assigned to the Project as there is no other work for them to
perform at this time. Id. at § 14. Granting the preliminary injunction will have the immediate
effect of putting six (6) people out of work for up to three (3) months. Id.
Where the Plaintiffs are unable to articulate any actual harm that would result from the
Project, the balance of harms favors the Defendants.
Il. CONCLUSION
WHEREFORE, the Defendant C. White Marine, Inc. requests the Court deny the
Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction, and such other
relief as the Court deems just and proper.C. WHITE MARINE, INC.
By its attorneys,
Francis A. Shannon, III, Esq.
BBO # 560651
fashannon@shannonlawassociates.com
James N. Worden, Esq.
BBO # 647040
jnworden@shannonlawassociates.com
Shannon Law Associates, Inc.
21 McGrath Highway, Unit 406
Quincy, MA 02169
(617) 479-1313
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I served a true copy of the above document and the
Affidavit Of Lawrence G. White In Opposition To Plaintiff's Motion For Preliminary Injunction
upon the following parties by electronic mail, this 18th day of October, 2017:
Glenn A. Wood, Esq.
Rubin and Rudman, LLP
53 State Street
Boston, MA 02109
Ronald H. Rappaport, Esq.
Michael A. Goldsmith, Esq.
Reynolds, Rappaport, Kaplan
& Hackney, LLC
106 Cooke Street
P.O. Box 2540
Edgartown, MA 02539
1612:025:OppMmPI-CWM
Daniel Larkosh, Esq.
Larkosh & Jackson, LLP
P.O. Box 9000; PMB #193
20 Meshacket Rd.
Edgartown, MA 02539
Richard D. Batchelder, Esq.
Peter A. Alpert, Esq.
Daniel A. Yanofsky, Esq.
Ropes & Gray, LLP
Prudential Tower
800 Boylston Street
Boston, 199
on, III, Esq.
Preview
@ COMMONWEALTH OF MASSACHUSETTS DUKES, ss. Superior Court Department of the Trial Court Civil Action No. 1774 CV 00057 ) TEN PERSONS OF THE COMMONWEALTH, | ) Plaintiffs, ) ) v. ) : ) SQUIBNOCKET FARMS, INC. ) and C. WHITE MARINE, INC., ) Defendants. ) ) DEFENDANT C. WHITE MARINE, INC.'S OPPOSITION TOPLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION NOW COMES the Defendant, C. White Marine, Inc. ("C. White"), through counsel, and hereby opposes the Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction ("Motion"). In opposition thereto, C. White states, as the newest participant in this matter, it is not privy to the apparently lengthy history of litigation and administrative actions between the Plaintiffs and Squibnocket Farms, Inc. ("Association"), all apparently unsuccessful for the Plaintiffs, but can comment on the significant harm to C. White and its employees if the subject construction project is halted, which harms include C. White laying off multiple employees due to lack of work, hundreds of thousands of dollars in increased costs for the completion of the project (or simply losses if the project never resumes), impacts to C. White's ability to secure contracts while this project remains in judicial limbo, and significant delays in the completion of the subject project. : FILED . - SUPERIOR COURT NTY In further opposition to the Plaintiffs' Motion, C. White states as follegusty OF DUKES COU! oct 18 2017 REC'D CLERKIL FACTS On or about July 21, 2017, the Association, as owner, entered into a written contract or agreement ("Contract") with C. White, as contractor, for the-contract or project known as the Squibnocket Causeway and Approach Roadway ("Project") in Chilmark, Massachusetts. Pursuant to the Contract, C. White is to construct an at-grade roadway and an elevated causeway in accordance with plans and specifications developed for the Association by Haley & Aldrich, Inc. ("HAI"). Exhibit A, Affidavit of Lawrence G. White in Opposition to Plaintiffs' Motion for Preliminary Injunction ("White Affid.") at 6. Attached to the Contract are multiple documents including, but not limited to, a May 17, 2016 report from the Massachusetts Department of Fisheries and Wildlife, Martha's Vineyard Commission Decision No. DRI 338-M2, an Order of Conditions issued by the Town of Chilmark Conservation Commission, and a December 15, 2016 Superseding Order of Conditions issued by the Massachusetts Department of Environmental Protection ("MassDEP"), all of which approve of the Project. Id. at { 7. At this time, C. White has fully mobilized to the site of the Project in Chilmark and commenced construction. White Affid. at 9. Specifically, C. White has dispatched a crane, six (6) truckloads of materials and equipment, and a work crew who are presently stationed in a rental home (for which C. White has paid $6,400.00) on the island of Martha's Vineyard. Id. at { 10. If the relief requested by Plaintiffs is granted, C. White will either have to stand idle in place at a cost to the Association of $4,365.00 per day or will have to demobilize, lay off the workers assigned to the Project, and bring all of its equipment and materials back to storage in East Boston, Massachusetts. Id. at f§ 11-14. Remaining idle has a defined, but high, cost. Demobilization is costly, time consuming, and complex. C. White would be required to dismantle the crane that is on-site; truck all of its materials and equipment to Vineyard’ Havenwhere the equipment and materials would be loaded on to barges; ship the materials and equipment to New Bedford, Massachusetts; where the equipment would be trucked to East Boston, Massachusetts. Id. at | 13. C. White estimates this process would take its crews approximately ten (10) days. Id. If the Project thereafter resumes,’ the same process would occur in reverse. Id. at 15. C. White estimates an additional cost of $150,000.00 for the additional demobilization and remobilization costs. Id. at § 16. In addition, C. White would lose the anticipated revenue from the Project, estimated to be approximately $1,500,000.00. Id. at { 17. Il LEGAL STANDARD AND ARGUMENT Preliminary injunctions and temporary restraining orders are subject to similar legal standards. Neither should issue unless there is no adequate remedy at law and the moving party demonstrates: (1) a reasonable likelihood of success on the merits; (2) irreparable harm to the moving party in light of the moving party's chance of success on the merits; (3) the harm to be suffered by the moving party outweighs the harm to the non-moving party; and, if applicable, (4) the grant of relief will not adversely affect the public. John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124, 131-32 (1999), Packaging Industries, Inc. v. Cheney, 380 Mass. 609, 616-18 (1980). Under the similar federal rule, the likelihood of success is "the main bearing wall of the four-factor framework." Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir 1996). ' There may be additional costs depending on when the Project resumes which C. White is unable to calculate. For example, if the Project resumes during the busy tourist season on Martha's Vineyard, C. White expects significant delays due to increased activity in the.area of the Project, limitations may be imposed on the use of.certain vehicles or construction equipment, the hours C. White is permitted to work, and C. White's ability to find suitable housing for its employees would not only be hampered by greater competition in the rental market, but the costs of the rental could be expected to substantially increase. Exhibit A, White Affid. at { 18.A. Plaintiffs are Unlikely to Succeed on the Merits C. White is not privy to the multiple prior efforts by the Plaintiffs to stall or delay the Project but concurs with the Association that all relevant agencies have reviewed the Project and its potential environmental impacts, concluded the Project would result in a net benefit to the environment, and approved the Project. Based on these numerous and repeated approvals, C. White is ready, willing, and able to perform and has, in fact, begun performance. B. Plaintiffs Cannot Demonstrate Irreparable Harm Again, C. White concurs with the Association that the Plaintiffs have failed to demonstrate any irreparable harm. It appears to C. White that multiple agencies responsible for protecting and preserving the environment have reviewed the Project and determined there will be a net benefit to the environment. C. White is an experienced marine contractor and is more than capable of completing the Project in accordance with the various requirements of such agencies, as it has done repeatedly in the past — including on projects for the Town of Chilmark. Exhibit A, White Affid. at {J 4-5. Cc. The Balance of Harms Favors the Defendants C. White submits the balance of harms strongly favors the Defendants. The economic costs of delay are substantial. Id. at {{] 10-18. Construction delays, increased costs, and the potential for loss of financing have been found to constitute irreparable harm in other cases brought under Mass. Gen. L. c. 214, § 7A. See Newman v. City of Malden, No. 98-2754, 1998 Mass. Super. LEXIS 92, *11 (Super. Ct., Middlesex Cty., Jun. 16, 1998) (potential impacts to the City of enjoining construction included increased costs, delay of the overall program to construct new schools, and the potential loss of state funding).In this case, C. White has fully mobilized to the site of the Project, including the delivery and assembly of heavy equipment and several truckloads of materials and equipment. Exhibit A, White Affid., at {§ 9-10. The cost to idle C. White's equipment and crew at ‘the Project site exceeds $20,000.00 per week. Id. at { 11. The cost to remove, store, and ultimately remobilize the materials and equipment is estimated at $150,000.00 and would take C. White a total of approximately ten (10) days each way resulting in a minimum delay of twenty (20) days. Id. at {I 12-16. C. White would, at least temporarily and possibly permanently, lose approximately $1,500,000.00 in revenue for its performance of the Project. Id. at { 17. Depending on the time the Project resumes, there may be additional costs, such as increased housing expenses for C. White's work crew, or delays caused by increased activity in the area of the Project or new restrictions imposed by relevant authorities concerning the use of equipment or machinery during the busy tourist season which C. White cannot quantify. Id. at { 18. Finally, C. White would have to lay off the work crew assigned to the Project as there is no other work for them to perform at this time. Id. at § 14. Granting the preliminary injunction will have the immediate effect of putting six (6) people out of work for up to three (3) months. Id. Where the Plaintiffs are unable to articulate any actual harm that would result from the Project, the balance of harms favors the Defendants. Il. CONCLUSION WHEREFORE, the Defendant C. White Marine, Inc. requests the Court deny the Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction, and such other relief as the Court deems just and proper.C. WHITE MARINE, INC. By its attorneys, Francis A. Shannon, III, Esq. BBO # 560651 fashannon@shannonlawassociates.com James N. Worden, Esq. BBO # 647040 jnworden@shannonlawassociates.com Shannon Law Associates, Inc. 21 McGrath Highway, Unit 406 Quincy, MA 02169 (617) 479-1313 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I served a true copy of the above document and the Affidavit Of Lawrence G. White In Opposition To Plaintiff's Motion For Preliminary Injunction upon the following parties by electronic mail, this 18th day of October, 2017: Glenn A. Wood, Esq. Rubin and Rudman, LLP 53 State Street Boston, MA 02109 Ronald H. Rappaport, Esq. Michael A. Goldsmith, Esq. Reynolds, Rappaport, Kaplan & Hackney, LLC 106 Cooke Street P.O. Box 2540 Edgartown, MA 02539 1612:025:OppMmPI-CWM Daniel Larkosh, Esq. Larkosh & Jackson, LLP P.O. Box 9000; PMB #193 20 Meshacket Rd. Edgartown, MA 02539 Richard D. Batchelder, Esq. Peter A. Alpert, Esq. Daniel A. Yanofsky, Esq. Ropes & Gray, LLP Prudential Tower 800 Boylston Street Boston, 199 on, III, Esq.