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COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, ss SUPERIOR COURT
CIVIL ACTION NO. 17-899
HAMPDEN County
SUPERIOR COURT
HI LINCOLN, INC, d/b/a MAJESTIC FILED
HONDA, AUG 1 3 2018
Plaintiff,
v. Cc He OF ee
SOUTH WASHINGTON STREET, LLC,
AND 849 SOUTH WASHINGTON
STREET, LLC,
Defendants.
DEFENDANTS’ MOTION TO SEVER AND STAY CLAIMS UNDER M.G.L, C. 93A
Defendants South Washington Street, LLC and 849 South Washington Street, LLC
(collectively, the “Landlord”) hereby move, pursuant to Mass. R. Civ. P. 42(b), for an order
severing the claim that Plaintiff H1 Lincoln Inc. d/b/a Majestic Honda’s (“Tenant”) has asserted
under M.G.L. c. 93A (“Chapter 93A”) (Count 5) and staying trial of that claim pending the jury
trial of the parties’ other claims. In support of this Motion, Landlord states as follows:
1. This is an action asserted by Tenant against the Landlord for breach of a lease (the
“Lease”) of property located at 849 and 865 South Washington Street, North Attleboro,
Massachusetts (the “Property”). Specifically, the Landlord exercised its right to withhold
consent to the Tenant’s proposed construction plan, the Lease was terminated (by its terms) and
the Tenant then filed this action claiming that the Landlord’s withholding of consent was
“commercially” unreasonable and seeking to invalidate the termination. Based upon this alleged
conduct, the Tenant has asserted claims for breach of contract, breach of the covenant of good
AP B [phe Shade fe berry
c ;
{k0746172.2} i. 8 =lL@ 8 Sfaz\s, Dicey ve
, 2
’ Rataomatipidvdouedhe~faith and fair dealing, declaratory judgment and violation of Chapter 93A and seeks monetary
relief and specific performance in the form of an order requiring the Landlord to “rescind the
99 «6,
termination of the Lease,” “approve the Plaintiffs improvement plans,” and “honor and comply
with the Lease forthwith.”! See Complaint.
2. Landlord has asserted a counterclaim against Tenant seeking a declaratory
judgment that the Landlord’s exercise of its right to withhold consent was reasonable and that its
termination of the Lease was valid. See Answer and Counterclaim, J 30-32.
3. Mass. R. Civ. P. 42(b) authorizes a court in its discretion to order separate trials of
one or more issues, claims or counterclaims “in furtherance of convenience or to avoid prejudice,
or when separate trials will be conducive to expedition and economy.” Mass. R. Civ. P. 42(b).
By its terms, Rule 42 confers upon the Court discretion to “deal with the exigencies of litigation
by separating parties, claims and issues in order ‘to secure the just speedy and inexpensive
determination of every action.” Roddy & McNulty Insurance Agency, Inc. v. AA Proctor & Co.,
16 Mass. App. Ct. 525, 529 (1983) (quoting Mass. R. Civ. P. 1). Under Rule 42 the Court is
permitted to consider the “convenience of adjudication, the avoidance of prejudice and the
interest of expedition and economy as dictated by the characteristics and elements of proof of the
claims themselves” to determine a request to bifurcate. Id. at 528.
4. It is well settled that there is no right to a jury trial for actions under Chapter 93A.
Nei v. Burley, 388 Mass. 307, 315. Accordingly, in cases like the present action, involving both
common-law claims and a Chapter 93A claim, courts regularly sever and defer trial of the
statutory claims. See Roddy, 16 Mass. App. Ct. at 529 (citing Nei, 388 Mass. at 311-15).
' Specific performance is an equitable remedy which compels the performance of a
contract in the precise terms agreed upon. Black’s Law Dictionary, 10" ed (2014). Here by
requesting as its remedy an order compelling the Landlord to comply with the terms of the
Lease, the Tenant has requested specific performance.
{K0746172.2)“[S]eparation in the typical case (i.e. one involving a c. 93A and a common law claim from
which the c. 93A claim arises) is premised on the nature of the c. 93A claim, specifically the lack
of a right to jury trial on the underlying assertion of unfair, deceptive or anticompetitive
conduct.” Id.
5. Moreover, the jury’s determination of the non-93A claims may eliminate the need
to determine the Chapter 93A claim or substantially narrow the issues to be tried. Specifically,
should Landlord so succeed on his counterclaim and prove that the exercise of its right to
withhold consent was reasonable and that its termination of the Lease was valid, every count of
Tenant’s Complaint will fail, and all of the remedies that Tenant demand in its lawsuit, will
become moot.
6. Courts broadly have recognized that bifurcation of trial under Rule 42(b) is
appropriate on the grounds of efficiency and judicial economy when the resolution of one claim
may obviate the need to adjudicate another. See, e.g., American Family Mut. Ins. Co. v. Haslam,
No. 09-cv-00724, 2011 WL 1042284, *2 (D. Colo. Mar. 22, 2011) (“depending on the jury’s
verdict, the cross-claims may evanesce”); Banclnsure, Inc. v. First Bank, Inc., No. 3:10-cv-580,
2011 WL 781191 (W.D. Ky. Mar. 1, 2011) (resolution of underlying breach of contract claim
would indicate whether bad faith claim had merit); Chapman v Bernard’s, Inc., 167 F. Supp. 2d
406, 417 (D. Mass. 2011).
CONCLUSION
WHEREFORE, for the reasons set forth above, in the interest of judicial economy and
efficiency, and for convenience, the Landlord respectfully request that the Court enter an order
severing and staying Tenant’s claim under M.G.L. c. 93A pending the jury trial as to the parties’
other claims.
{K0746172.2}-%
Dated: August 9, 2018
4K0746172.2}
Respectfully submitted,
SOUTH WASHINGTON STREET, LLC and
849 SOUTH WASHINGTON STREET, LLC
By their attorneys,
[kw
Richard E. Briansky (BBO # 632709)
Amy B. Hackett (BBO # 676345)
ECKERT SEAMANS CHERIN & MELLOTT, LLC
Two International Place, 16" Floor
Boston, Massachusetts 02110
Telephone: 617.342.6800
Fax: 617.342.6899
rbrianksy@eckertseamans.com
ahackett@eckertseamans.com
CERTIFICATE OF SERVICE
Thereby certify that a true copy af the above document
was served upga—the atlorpey of record for each other
party by (hand)(qfal)-an_| Ss ee
Preview
|= ‘owe xp WK) Bi\Le “~N vw c Joanna at Gan Cas ~b ee “e gifieprucwg SYN ebnl! omy 4 wo howe yee ~y yo COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss SUPERIOR COURT CIVIL ACTION NO. 17-899 HAMPDEN County SUPERIOR COURT HI LINCOLN, INC, d/b/a MAJESTIC FILED HONDA, AUG 1 3 2018 Plaintiff, v. Cc He OF ee SOUTH WASHINGTON STREET, LLC, AND 849 SOUTH WASHINGTON STREET, LLC, Defendants. DEFENDANTS’ MOTION TO SEVER AND STAY CLAIMS UNDER M.G.L, C. 93A Defendants South Washington Street, LLC and 849 South Washington Street, LLC (collectively, the “Landlord”) hereby move, pursuant to Mass. R. Civ. P. 42(b), for an order severing the claim that Plaintiff H1 Lincoln Inc. d/b/a Majestic Honda’s (“Tenant”) has asserted under M.G.L. c. 93A (“Chapter 93A”) (Count 5) and staying trial of that claim pending the jury trial of the parties’ other claims. In support of this Motion, Landlord states as follows: 1. This is an action asserted by Tenant against the Landlord for breach of a lease (the “Lease”) of property located at 849 and 865 South Washington Street, North Attleboro, Massachusetts (the “Property”). Specifically, the Landlord exercised its right to withhold consent to the Tenant’s proposed construction plan, the Lease was terminated (by its terms) and the Tenant then filed this action claiming that the Landlord’s withholding of consent was “commercially” unreasonable and seeking to invalidate the termination. Based upon this alleged conduct, the Tenant has asserted claims for breach of contract, breach of the covenant of good AP B [phe Shade fe berry c ; {k0746172.2} i. 8 =lL@ 8 Sfaz\s, Dicey ve , 2 ’ Rataomatipidvdouedhe~faith and fair dealing, declaratory judgment and violation of Chapter 93A and seeks monetary relief and specific performance in the form of an order requiring the Landlord to “rescind the 99 «6, termination of the Lease,” “approve the Plaintiffs improvement plans,” and “honor and comply with the Lease forthwith.”! See Complaint. 2. Landlord has asserted a counterclaim against Tenant seeking a declaratory judgment that the Landlord’s exercise of its right to withhold consent was reasonable and that its termination of the Lease was valid. See Answer and Counterclaim, J 30-32. 3. Mass. R. Civ. P. 42(b) authorizes a court in its discretion to order separate trials of one or more issues, claims or counterclaims “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” Mass. R. Civ. P. 42(b). By its terms, Rule 42 confers upon the Court discretion to “deal with the exigencies of litigation by separating parties, claims and issues in order ‘to secure the just speedy and inexpensive determination of every action.” Roddy & McNulty Insurance Agency, Inc. v. AA Proctor & Co., 16 Mass. App. Ct. 525, 529 (1983) (quoting Mass. R. Civ. P. 1). Under Rule 42 the Court is permitted to consider the “convenience of adjudication, the avoidance of prejudice and the interest of expedition and economy as dictated by the characteristics and elements of proof of the claims themselves” to determine a request to bifurcate. Id. at 528. 4. It is well settled that there is no right to a jury trial for actions under Chapter 93A. Nei v. Burley, 388 Mass. 307, 315. Accordingly, in cases like the present action, involving both common-law claims and a Chapter 93A claim, courts regularly sever and defer trial of the statutory claims. See Roddy, 16 Mass. App. Ct. at 529 (citing Nei, 388 Mass. at 311-15). ' Specific performance is an equitable remedy which compels the performance of a contract in the precise terms agreed upon. Black’s Law Dictionary, 10" ed (2014). Here by requesting as its remedy an order compelling the Landlord to comply with the terms of the Lease, the Tenant has requested specific performance. {K0746172.2)“[S]eparation in the typical case (i.e. one involving a c. 93A and a common law claim from which the c. 93A claim arises) is premised on the nature of the c. 93A claim, specifically the lack of a right to jury trial on the underlying assertion of unfair, deceptive or anticompetitive conduct.” Id. 5. Moreover, the jury’s determination of the non-93A claims may eliminate the need to determine the Chapter 93A claim or substantially narrow the issues to be tried. Specifically, should Landlord so succeed on his counterclaim and prove that the exercise of its right to withhold consent was reasonable and that its termination of the Lease was valid, every count of Tenant’s Complaint will fail, and all of the remedies that Tenant demand in its lawsuit, will become moot. 6. Courts broadly have recognized that bifurcation of trial under Rule 42(b) is appropriate on the grounds of efficiency and judicial economy when the resolution of one claim may obviate the need to adjudicate another. See, e.g., American Family Mut. Ins. Co. v. Haslam, No. 09-cv-00724, 2011 WL 1042284, *2 (D. Colo. Mar. 22, 2011) (“depending on the jury’s verdict, the cross-claims may evanesce”); Banclnsure, Inc. v. First Bank, Inc., No. 3:10-cv-580, 2011 WL 781191 (W.D. Ky. Mar. 1, 2011) (resolution of underlying breach of contract claim would indicate whether bad faith claim had merit); Chapman v Bernard’s, Inc., 167 F. Supp. 2d 406, 417 (D. Mass. 2011). CONCLUSION WHEREFORE, for the reasons set forth above, in the interest of judicial economy and efficiency, and for convenience, the Landlord respectfully request that the Court enter an order severing and staying Tenant’s claim under M.G.L. c. 93A pending the jury trial as to the parties’ other claims. {K0746172.2}-% Dated: August 9, 2018 4K0746172.2} Respectfully submitted, SOUTH WASHINGTON STREET, LLC and 849 SOUTH WASHINGTON STREET, LLC By their attorneys, [kw Richard E. Briansky (BBO # 632709) Amy B. Hackett (BBO # 676345) ECKERT SEAMANS CHERIN & MELLOTT, LLC Two International Place, 16" Floor Boston, Massachusetts 02110 Telephone: 617.342.6800 Fax: 617.342.6899 rbrianksy@eckertseamans.com ahackett@eckertseamans.com CERTIFICATE OF SERVICE Thereby certify that a true copy af the above document was served upga—the atlorpey of record for each other party by (hand)(qfal)-an_| Ss ee