Susan Gordon v. Starwood Hotels & Resorts Worldwide Inc.

Filing 22

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER. In accordance with the foregoing discussion, the motion for summary judgment (Docket Entry 16 ) is ALLOWED.(Garvin, Brendan)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SUSAN GORDON,
Plaintiff,
CIVIL ACTION NO.
15-13289-MBB

v.
STARWOOD HOTELS AND
RESORTS WORLDWIDE, INC.,
Defendant.

MEMORANDUM AND ORDER RE:
DEFENDANT STARWOOD’S MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 16)
March 3, 2017
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
filed by defendant Starwood Hotels and Resorts Worldwide, Inc.
(“defendant”).

(Docket Entry # 16).

(“plaintiff”) opposes the motion.

Plaintiff Susan Gordon

(Docket Entry # 18).

After

conducting a hearing, this court took the motion (Docket Entry #
16) under advisement.
PROCEDURAL BACKGROUND
On or about September 2, 2014, plaintiff filed an action in
Pennsylvania state court in Wayne County against defendant
seeking damages for injuries sustained while a guest of Cove
Haven Resort in Lakeville, Pennsylvania.

(Docket Entry # 17-1).

Plaintiff voluntarily dismissed this action prior to June 30,

2015.

(Docket Entry # 17-1).

On June 30, 2015, plaintiff filed

suit for the same injury in Massachusetts Superior Court
(Suffolk County).

(Docket Entry # 17-2).

The complaint contains two causes of action.
# 17-2).

(Docket Entry

Count I alleges that plaintiff sustained personal

injuries as a result of the negligence of one of defendant’s
employees and Count II alleges that defendant breached its duty
to adequately train and supervise its employees.

(Docket Entry

# 17-2).
On September 3, 2015, defendant removed this case to the
United States District Court for the District of Massachusetts.
(Docket Entry # 1).

Jurisdiction is based on diversity under 28

U.S.C. § 1332, as plaintiff is a resident of Massachusetts
(Docket Entry # 17-1) and defendant is a Maryland corporation
with a principal place of business in Connecticut (Docket Entry
# 17-4).

The amount in controversy exceeds $75,000.

(Docket

Entry ## 17-2 & 19-1).
STANDARD OF REVIEW
Summary judgment is designed “to ‘pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”

Tobin v. Federal Express

Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts
Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)).

It is

appropriate “if the movant shows that there is no genuine
2 

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed.R.Civ.P. 56(a).

It is

inappropriate “if the record is sufficiently open-ended to
permit a rational factfinder to resolve a material factual
dispute in favor of either side.”

Pierce v. Cotuit Fire Dist.,

741 F.3d 295, 301 (1st Cir. 2014).
“Genuine issues of fact are those that a factfinder could
resolve in favor of the nonmovant, while material facts are
those whose ‘existence or nonexistence has the potential to
change the outcome of the suit.’”

Green Mountain Realty Corp.

v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de
Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London,
637 F.3d 53, 56 (1st Cir. 2011)).

The evidence is viewed “in

the light most favorable to the non-moving party” and “all
reasonable inferences” are drawn in his favor.
Johnson, 752 F.3d 490, 495 (1st Cir. 2014).

Ahmed v.

“Unsupported

allegations and speculation,” however, “do not demonstrate
either entitlement to summary judgment or the existence of a
genuine issue of material fact sufficient to defeat summary
judgment.”

Rivera-Colón v. Mills, 635 F.3d 9, 12 (1st Cir.

2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39-40
(1st Cir. 2014) (“allegations of a merely speculative or
conclusory nature are rightly disregarded”).

3 

FACTUAL BACKGROUND
Plaintiff lives in Lunenburg, Massachusetts and works for
UMass Memorial Hospital in Worcester, Massachusetts as a
phlebotomist.

(Docket Entry # 17-3, No. 1).

In August 2012,

plaintiff made a reservation directly with Cove Haven Resort in
Lakeville, Pennsylvania (“the resort”) (Docket Entry # 17-3),1
which is owned and operated by defendant (Docket Entry # 17-4).
On the morning of September 1, 2012, plaintiff and her husband
drove from their residence in Massachusetts and arrived at the
resort in Pennsylvania for a weekend vacation.

(Docket Entry #

17-3).
The next morning on September 2, 2012, plaintiff and her
husband went on a boat ride tour operated by the resort.
(Docket Entry # 17-3).

Having had a good time in the morning,

plaintiff and her husband decided to go on another boat ride
tour operated by the resort in the afternoon.
17-3).

(Docket Entry #

During the afternoon tour, at around 2:00 p.m., the

operator of the boat hit the waves of other boats on the lake.
(Docket Entry # 17-3).

As a result, plaintiff was thrown off

the boat and twice flew into the air and landed on her buttocks,
causing fractures to her T-12 vertebrae and bruises on her back,
buttocks and thighs.

(Docket Entry # 17-3).

1

This court assumes, for purposes of argument only, that
plaintiff made the reservation while located in Massachusetts.
4 

Immediately after the injury, plaintiff was taken by
ambulance to Scranton Hospital in Pennsylvania where she
received a CAT scan and numerous follow-up exams.
## 19-1 & 17-3).

(Docket Entry

The next day on September 3, 2012, plaintiff

and her husband drove back to Massachusetts and went to
Massachusetts General Hospital (“Mass. General”) in Boston,
Massachusetts.

(Docket Entry ## 19-1 & 17-3).

She received

treatment at the hospital on September 3 and 4 and had blood
work done on September 5.

(Docket Entry # 17-3, No. 6).

was treated at Mass. General for the next seven months.
Entry # 19-1).

She
(Docket

In November, she underwent spine cementation, a

procedure also known as “vertebral augmentation,” at Mass.
General.

(Docket Entry # 17-3, No. 6).

She was “covered under

Harvard Pilgrim medical insurance” and “incurred approximately
$70,000 in medical expenses.”

(Docket Entry # 19-1).

DISCUSSION
Defendant seeks summary judgment because Pennsylvania’s
two-year statute of limitations for personal injury tort claims
bars plaintiff’s claims as untimely.

(Docket Entry # 16).

Plaintiff argues that the Massachusetts three-year statute of
limitations for tort claims, Mass. Gen. Laws ch. 260, § 2A,
applies thereby rendering this action timely filed.
Entry # 18).

5 

(Docket

A federal court sitting in diversity applies the choice of
law rules of the forum state.

See Klaxon Co. v. Stentor

Electric Mfg. Co., 313 U.S. 487, 496 (1941); see also Hartford
Fire Ins. Co. v. CAN Ins. Co. (Europe) Ltd., 633 F.3d 50, 54 n.7
(1st Cir. 2011) (“[a]s a federal court sitting in diversity,”
forum’s choice of law rules apply).
rules therefore apply.

Massachusetts choice of law

In Massachusetts, instead of recognizing

statute of limitations as a procedural matter and categorically
applying Massachusetts’ statute of limitations, courts adhere to
a functional approach.

See Nierman v. Hyatt Corp., 808 N.E.2d

290, 292 (Mass. 2004) (“functional approach . . . treats the
issue as a choice of law question, as stated in the Restatement
(Second) of Conflict of Laws § 142 (Supp. 1989)”)
(“Restatement”); see also New England Tel. & Tel. Co. v.
Gourdeau Const. Co. Inc., 647 N.E.2d 42, 45 (Mass. 1995)
(applying the rules of Restatement § 142).

Courts should focus

“on the statute of limitations issue, and not on the underlying
tort.”

Nierman, 808 N.E.2d at 293 (citing Kahn v. Royal Ins.

Co., 709 N.E.2d 822, 824 (Mass. 1999)).
Expressly subject to the principles in section six, section
142 instructs that:
(2) The forum will apply its own statute of
limitations permitting the claim unless: (a)
maintenance of the claim would serve no substantial
interest of the forum, and (b) the claim would be
barred under the statute of limitations of a state
6 

having a more significant relationship to the parties
and the occurrence.
Restatement § 142(2).

Specifically, this court “consider[s] (1)

whether Massachusetts has a substantial interest in permitting
the claims to go forward and (2) whether Texas2 [here,
Pennsylvania] has a more significant relationship to the parties
and the negligence claim.”

Nierman, 808 N.E.2d at 293 (citing

the Restatement § 142).
The striking similarity between the facts in Nierman, in
which the Massachusetts Supreme Judicial Court (“SJC”) applied a
Texas statute of limitations in a personal injury action
involving a Massachusetts resident, and the facts in the case at
bar warrants examining the decision.

Nierman was a

Massachusetts resident who, like plaintiff, was injured out of
state and brought suit against a national hotel chain, Hyatt
Corporation (“Hyatt”), arising out of injuries she sustained in
Texas when a hotel employee accelerated a transport cart in
which she was seated.

Nierman, 808 N.E.2d at 291.

Like

defendant, the principal place of business and place of
incorporation of Hyatt was neither the place of the injury
(Texas) nor the forum state and plaintiff’s state of residence
(Massachusetts).

Id.

Hyatt, like defendant which has a resort

2

In Nierman, Texas was the place where the injury occurred and
where the defendant’s property was located. Nierman, 808 N.E.2d
at 291.
7 

in Pennsylvania, had a “place of business in Texas, and all of
the acts and events that gave rise to [the] litigation occurred
there.”

Id.

Like plaintiff, Nierman and her husband made the

hotel reservations while in Massachusetts and travelled to the
out-of-state place of injury.

Id.

Recognizing that “Massachusetts has a general interest in
having its residents compensated for personal injuries suffered
in another State,” the SJC explained that, “[i]t cannot be said,
however, that its interest in the timeliness of such an action
is more compelling than that of Texas.”

Id. at 293.

The SJC in

Nierman also cited and quoted section 142 and section six of the
Restatement to conclude that Texas had “the dominant interest”
in having its own “statute of limitations apply.”

Id. at 292-94

& nn. 5, 6.
Here too, Pennsylvania has the “dominant interest” in
having its statute of limitations apply.

See id. at 293-94.

The events constituting the alleged negligence all took place in
Pennsylvania, which is where plaintiff suffered her injury.

See

id. at 293 (“All of the events constituting the alleged
negligence took place in Texas, and Texas is where the alleged
injuries were suffered.”).

Although not a Pennsylvania

corporation, defendant operates a business there because that is
the location of the resort.

See id. (“Hyatt, although not a

Texas corporation, operated a business there and employed
8 

Texans.”).

Although a Massachusetts resident, plaintiff, along

with her husband, travelled to Pennsylvania where the injury
occurred.

See id. (Niermans “had travelled to Texas when the

accident occurred”).

Whereas plaintiff and/or her husband made

the reservation for the trip while located in Massachusetts,
this fact “carrie[s] no weight . . . because that contact has no
apparent bearing on any issue in the case, let alone the
limitations issue.”

Id. (dismissing import of factor that

Nierman made reservation through a Massachusetts travel agent
and citing the Restatement, § 142 cmt. e).

In short, plaintiff

fails to distinguish Nierman which, given its factual
similarity, eviscerates the argument that Massachusetts has a
substantial interest in having the claim go forward.
293.

See id. at

Nierman further establishes that, like Texas, Pennsylvania

has a more significant relationship to the parties and to the
occurrence.
Examining the particular factors in section 142 and section
six of the Restatement confirms the application of
Pennsylvania’s statute of limitations.

Section 142 prefaces the

analysis of the various factors by stating:

“[w]hether a claim

will be maintained against the defense of the statute of

9 

limitations is determined under the principles stated in § 6.”
Restatement § 142.3
“The balance of § 142,” however, “seems to set forth the
way in which the principles of § 6 will be implemented in almost
all instance.”

Gourdeau, 647 N.E.2d at 45 n.6.

Thus, “as a

practical matter,” the principles in section six may not come
into play until a court considers the state with the more
significant relationship to the occurrence and the parties under
section 145(2)(b).

Id.

Section 142(2)(a) entails examining the interests of
Massachusetts as the forum state.

See Restatement § 142(2)(a)

(forum applies “its own statute of limitations” unless
“maintenance of the claim would serve no substantial purpose of
the forum”).

The first and undeniable interest is ensuring that

Massachusetts citizens obtain compensation for personal
injuries.

See Nierman, 808 N.E.2d at 293.

As Nierman indicates

3

These principles are:
(1)

the needs of the interstate and international
systems; (2) the relevant policies of the forum;
(3) the relevant policies of other interested
states in the determination of the particular
issue; (4) the protection of justified
expectations; (5) the basic policies underlying
the particular field of law; (6) certainty,
predictability and uniformity of result and (7)
ease in the determination and application of the
law to be applied.

Restatement § 6.
10 

and as discussed above, however, “the mere fact that a plaintiff
. . . is a resident of Massachusetts does not create a
substantial interest.”

In re Fresenius Granuflo/NaturaLyte

Dialysate Products Liability Litigation, 76 F.Supp.3d 294, 307
(D.Mass. 2015) (citing Nierman, 808 N.E.2d at 294).

It is also

true that the Massachusetts legislature chose only to borrow
another state’s statute of limitations “in certain limited
situations.”

Gourdeau, 647 N.E.2d at 45 (citing Mass. Gen.

Laws. ch. 260, § 9); see also Andersen v. Lopez, 957 N.E.2d 726,
729 (Mass.App.Ct. 2011)).

These two concerns, however, were

present in Nierman even though the SJC did not expressly
acknowledge the latter interest.

Nierman, 808 N.E.2d at 293-94

(concluding that “Texas statute of limitations is the
appropriate one” despite the presence of these two concerns).
Plaintiff also asserts that she made the trip to the
Pennsylvania hotel in her Massachusetts purchased and insured
vehicle.

(Docket Entry # 19).

Like the fact that plaintiff

booked the trip from Massachusetts, the fact that she travelled
in a Massachusetts insured vehicle carries little or no weight
because it “has no apparent bearing on . . . the limitations
issue.”

Nierman, 808 N.E.2d at 293.

Simply put, plaintiff was

not involved in a car accident and her vehicle has no bearing on
the limitations issue.

11 

Plaintiff next points to the fact that she had medical
insurance through Harvard Pilgrim Insurance Company (“HPIC”).
(Docket Entry # 19).

She further analogizes the medical

insurance provided by HPIC with workers’ compensation and
asserts that Massachusetts has an interest in affording HPIC the
“right of reimbursement for injuries sustained in an accident
caused by a third party.”

(Docket Entry # 19).

In support,

plaintiff cites O’Sullivan v. Virco, 2006 WL 1581772, at *2
(D.Mass. June 7, 2006), and Elliston v. Wing Enter., 146
F.Supp.3d 351, 354 (D.Mass. 2015).
The facts in both O’Sullivan and Elliston, however, are
distinguishable from the case at bar.

In O’Sullivan, the

decision to apply Massachusetts’ statute of limitations was
based on the fact that none of the parties had a significant
connection to the state where the injury occurred.
2006 WL 1581772, at *2.

O’Sullivan,

The court also noted that:

where all of the parties hail from different States
and the accident has occurred in a State to which no
party has a significant connection, it is difficult to
say that any particular State has the “most
significant relationship” to the parties and the
occurrence. Under these circumstances, it is proper
to apply the forum State’s statute of limitations.
Id.

In contrast, Pennsylvania has a significant relationship to

the parties and Pennsylvania is where the alleged negligence and
injury occurred that gives rise to the claims.

Moreover, the

court in O’Sullivan went on to distinguish Nierman, pointing out
12 

that the SJC’s application of Texas’ statute of limitations in
Nierman did not conflict with the application of the forum’s
statute of limitations in O’Sullivan because Hyatt operated a
hotel in Texas and the injury took place in that hotel.

Id.

In Elliston, a product liability case, the court applied
Massachusetts’ statute of limitations after finding that
Massachusetts had a more substantial interest than Oklahoma
where the product’s defect caused the injury.
F.Supp. at 353-54.

Elliston, 146

The Elliston court, however, distinguished

that case from Nierman, holding that:
Unlike a simple accident where the events and parties
all occur within the same locale, product-liability
claims stem from design, manufacture, sale, and use of
product, and the location of the accident is only one
aspect of the claim. Oklahoma has a relatively
minimal interest in the application of its statute of
limitations to Elliston’s claim.
Elliston, 146 F.Supp. at 354.

The court further concluded that,

“Oklahoma has only a minimal, if any interest in the present
case, and Massachusetts has significant interests.”

Id. at 354-

55 (quoting Restatement § 142 cmt. g, and that Massachusetts may
entertain claim even if Oklahoma bars it).
Even more to the point, a court in this district rejected
the same argument plaintiff presents here.

See Mukarker v. City

of Philadelphia, Philadelphia Int’l Airport and Otis Elevator
Co., Civil Action No. 16-10355-PBS (D.Mass. March 2, 2017)
(“Mukarker”).

Although unpublished and therefore not employed
13 

as precedent, the decision is insightful and contradicts
plaintiff’s position that the law has changed or evolved in
plaintiff’s favor since the 2004 Nierman decision.

As explained

in Mukarker:
In some cases, courts have considered the economic interest
of Massachusetts in recouping benefits under prong two of
Section 142. See Elliston v. Wing Enterprises, Inc., 146 F.
Supp. 3d 351, 354 (D. Mass. 2015) (Saylor, J.) (applying
Massachusetts’ statute of limitations in a product
liability action, in part, because the Commonwealth likely
would recoup some of plaintiff’s state workers’
compensation benefits via subrogation). See also Anderson
v. Lopez, 957 N.E.2d 726, 729 (Mass. App. Ct. 2011)
(applying Massachusetts’ statute of limitations where motor
vehicle accident occurred in Canada but defendants lived in
Massachusetts and were insured by a Massachusetts insurer).
Mukarker, at pp. 7-8.
Nonetheless, the Mukarker court noted that two recent
unpublished decisions by:
the Massachusetts Appeals Court held that the financial
implications of workers’ compensation and other
Massachusetts laws did not give the forum state a
substantial interest to overcome a more significant
relationship to the claim. See Lynch v. Stop & Shop
Supermarket Co., LLC, 996 N.E.2d 500 (Mass. App. Ct. 2013)
(applying Pennsylvania’s statute of limitations although
plaintiff received a Massachusetts workers’ compensation
settlement and medical treatment in Massachusetts);
Gonzalez v. Johnson, 918 N.E.2d 481 (Mass. App. Ct. 2009)
(applying Connecticut’s statute of limitations although the
social and financial implications of the plaintiff’s injury
might be felt most strongly in Massachusetts).
Mukarker, at p. 8.
The Mukarker court’s analysis found additional support to
apply Pennsylvania’s statute of limitations to bar the
14 

plaintiff’s negligence claim by virtue of Pennsylvania’s
“‘strong policy judgments’ underlying the” statute.
at 8.

Mukarker,

As reasoned in Mukarker:
Although Massachusetts may have a financial interest in
recouping health benefits paid by MassHealth, its interest
falls short when compared to Pennsylvania’s. There are
“strong policy judgments” underlying Pennsylvania’s statute
of limitations. Gustine Uniontown Assocs., Ltd. v. Anthony
Crane Rental, Inc. L.P., 842 A.2d 334, 346 (Pa. 2004).
Pennsylvania’s statute of limitations is designed to
“expedite litigation” and “discourage delay,” purposes
Pennsylvania courts deem sufficiently important to strictly
construe statutes of limitations. Id. (citing Ins. Co. of
N. America v. Carnahan, 284 A.2d 728, 729 (Pa. 1971); see
also Cunningham v. Ins. Co. of N. America, 530 A.2d 407,
409 (Pa. 1987) (“at some point, claims should be laid to
rest so that security and stability can be restored to
human affairs”).

Mukarker, at pp. 8-9.
Plaintiff next identifies the fact that she received the
bulk of her medical treatment in Massachusetts during the seven
months after the accident.

(Docket Entry # 19-1).

Like the

fact that plaintiff travelled to the resort in a Massachusetts
registered vehicle, the fact that she received the bulk of her
medical treatment in Massachusetts carries little to no weight
because it “has no apparent bearing on . . . the limitations
issue.”

Nierman, 808 N.E.2d at 293.

In Nierman, the SJC did

not even mention facts related to the place where plaintiff
received medical treatment.

See id.

Plaintiff’s Massachusetts

medical insurance policy and treatment are not significant and,
in fact, carry little to no weight in the limitations calculus.
15 

Having identified the interests of the forum state, none of
which alone or together are substantial, this court examines the
more significant relationship to the parties and to the
occurrence under section 142(2)(b).

It is worth noting that,

“‘the forum should not entertain a claim when doing so would not
advance any local interest and would frustrate the policy of a
state with a closer connection with the case and whose statute
of limitations would bar the case.’”
Gourdeau, 647 N.E.2d at 44).

Id. at 292 (quoting

In other words, a “claim generally

should not be maintained when some forum interest would be
served, but at the expense of the State with closer connection
with the case.”

Id. at 293 (citing Restatement § 142 cmt. g).

The SJC therefore found that Massachusetts did not have “any
substantial interest that would be advanced by entertaining the
Niermans’ claims.”

Id.

With respect to the parties, this case is, again,
strikingly similar to Nierman.
Massachusetts resident.

In Nierman, the plaintiff was a

Id. at 291.

Hyatt’s principal place of

business was neither Texas nor Massachusetts, nor was Hyatt
incorporated in either Texas or Massachusetts.

Id.

Hyatt did,

however, operate a hotel in Texas where the injury occurred.
Id.

In comparison, defendant is not a Pennsylvania or

Massachusetts corporation, nor does defendant have a principal
place of business in either Pennsylvania or Massachusetts.
16 

(Docket Entry # 17-4).

Defendant, however, operates a resort in

Pennsylvania where the injury occurred and the claim arose.
(Docket Entry # 17-4).

Pennsylvania therefore has a more

significant relationship to the parties than Massachusetts.
Examining whether Pennsylvania has a more significant
relationship to the occurrence of the injury also supports the
application of Pennsylvania’s statute of limitations.

In

Nierman, a tort case, the SJC found that Texas had a more
significant relationship to the occurrence because the injury
took place in Texas.

Nierman, 808 N.E.2d at 293.

In Khan, a

breach of contract case cited in Nierman, the SJC found that
Florida had a more significant relationship to the occurrence
because the insurance policy was issued “in Florida by a Florida
producer to a Florida motor vehicle owner, covering a vehicle
bearing Florida plates and operated by a vice-president of the
Florida insured.”

Khan, 709 N.E.2d at 824-25.

In the case at bar, plaintiff booked the boat trip which
led to the injury in Pennsylvania.

(Docket Entry # 17-3).

The

injury took place in Pennsylvania.

(Docket Entry # 17-3).

As

previously noted, the fact that plaintiff, a Massachusetts
resident, made the reservation for the resort while located in
Massachusetts has no bearing on the analysis.
N.E.2d at 293.

See Nierman, 808

On balance, Pennsylvania has a more significant

relationship to the occurrence of the injury than Massachusetts.
17 

Returning to the Restatement section six, the principles
contained therein dictate that this court apply Pennsylvania’s
statute of limitations.

Through the discussion of section 142

of the Restatement above, this court has addressed the
principles regarding the relevant policies of the forum
(Massachusetts) and of other relevant states (Pennsylvania).
This court therefore turns to the remaining relevant and
applicable principles in section six.
First, applying Pennsylvania’s statute of limitations fits
both parties’ justified expectations and therefore creates more
certainty and predictability.

“Generally speaking, it would be

unfair and improper to hold a person liable under the local law
of one state when he had justifiably molded his conduct to
conform to the requirements of another state.”

Restatement, § 6

cmt. g.
Defendant molded its behavior under Pennsylvania law,
evincing a justified expectation that Pennsylvania law would
apply.

Defendant’s resort is located in Pennsylvania where it

is reasonable to expect that injuries may occur on property.
Plaintiff nevertheless asserts that she expected “being able to
bring suit in Massachusetts” because she and her husband,
purportedly the only witness to the incident, reside in
Massachusetts and she received medical treatment in
Massachusetts.

(Docket Entry # 17-3).
18 

Defendant, however, is

entitled to justifiably mold its conduct with respect to the
operation of the resort to conform to the requirements of
Pennsylvania law and to expect protection under it.
Restatement, § 6 cmt. g.

See

Overall, this factor weighs in favor

of applying Pennsylvania law.
Second, with respect to the needs of the interstate and
international systems, courts “should seek to further harmonious
relations between states and to facilitate commercial
intercourse between them” and “have regard for the needs and
policies of other states.”

Restatement § 6 cmt. d.

That said,

plaintiff acknowledges (Docket Entry # 19, p. 3) and this court
agrees that this factor does not impact the analysis.

As such,

it does not affect this court’s decision to apply Pennsylvania’s
statute of limitations.
Third, the principle of ease of application does not change
this court’s conclusion.

This principle “should not be

overemphasized, since it is obviously of greater importance that
choice-of-law rules lead to desirable results.”
6 cmt. j.

Restatement, §

The policy goals of the particular field of law, see

generally Restatement, § cmt. h., favors the application of
Pennsylvania’s statute of limitations for reasons discussed and
quoted above in Mukarker, at pp. 8-9.

In short, the factors in

section six thus confirm the application of Pennsylvania’s
statute of limitations.
19 

As a final matter, in the opposition to the summary
judgment motion, plaintiff requests an opportunity to conduct
discovery regarding HPIC pursuant to Fed.R.Civ.P. 56(d) (“Rule
56(d)”).

The one-paragraph request is not supported by an

affidavit or declaration.

(Docket Entry # 19, p. 10).

Although

plaintiff’s counsel elaborated the basis for the request at oral
argument, she still fails to submit an affidavit or declaration.
A court may deny Rule 56(d) discovery “‘if it concludes
that the party opposing summary judgment is unlikely to garner
useful evidence from supplemental discovery.’”

Troiano v. Aetna

Life Ins. Co., 844 F.3d 35, 45 (1st Cir. 2016) (quoting Hicks v.
Johnson, 755 F.3d 738, 743 (1st Cir. 2014)).

Indeed, in this

circuit there is a “‘strong presumption’” against allowing
additional discovery.

Id. (quoting Liston v. Unum Corp. Officer

Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003)).

Entitlement

to additional discovery requires the requesting party to
exercise “‘due diligence.’”

See Alicea v. Machete Music, 744

F.3d 773, 788 (1st Cir. 2014) (quoting Rivera-Torres v. ReyHernandez, 502 F.3d 7, 10 (1st Cir. 2007)).

As explained in

Alicia, a nonmovant must establish the following three prongs to
warrant Rule 56(d) relief:
“(i) good cause for his [or her] inability to have
discovered or marshalled the necessary facts earlier in the
proceedings; (ii) a plausible basis for believing that
additional facts probably exist and can be retrieved within
a reasonable time; and (iii) an explanation of how those
20 

facts, if collected, will suffice to defeat the pending
summary judgment motion.”
Id. (quoting Rivera-Torres v. Rey-Hernandez, 502 F.3d at 10).
Rule 56(d) also requires the nonmovant to show the need for
discovery “by affidavit or declaration,” the same language used
in Rule 56(c).

Under Rule 56(c), “[a] formal affidavit is no

longer required” and “28 U.S.C. § 1746 allows a written unsworn
declaration, certificate, verification, or statement subscribed
in proper form as true under penalty of perjury to substitute
for an affidavit.”

Fed.R.Civ.P.56(c), Advisory Committee Notes,

2010 Amendment; see Powerex Corp. v. Reliant Energy Services,
Inc., 551 U.S. 224, 232 (2007) (“identical words and phrases
within the same statute should normally be given the same
meaning”).

A memorandum in opposition that does not set out the

showing by affidavit or a less formal declaration under the
penalty of perjury is therefore neither an affidavit nor a
declaration within the meaning of Rule 56(d).

See Selfridge v.

Jama, 172 F.Supp.3d 397, 409 (D.Mass. 2016) (dicta noting that
“memorandum in opposition to the defendants’ motion fails to
serve as an affidavit required under Rule 56(d) to carry this
burden”).
The Rule 56(d) request lacks merit for three reasons.
First, plaintiff’s unsworn memorandum in opposition does not
include a penalty of perjury statement and therefore is not an

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“affidavit” or “declaration” within the meaning of Rule 56(d).
Second, plaintiff fails to make a proper showing under the first
prong.

More specifically, she does not adequately explain why

she could not have elicited the requested information before the
close of fact discovery on December 1, 2016.

Instead, she

states that she only had two weeks to respond to the motion.
Like the plaintiff in Brown v. Massachusetts, 950 F.Supp.2d 274
(D.Mass. 2013), plaintiff “not only . . . fail[s] to support
[her] argument with an affidavit or declaration as required by
Rule 56(d), but [she] also had the opportunity to explore” the
HPIC issue[s] “through other means of discovery.”

Id. at 285.

Third, her reliance on Elliston and O’Sullivan is
misplaced, as explained above, and she does not provide any
other convincing explanation as to how the facts relative to
HPIC will defeat the application of Pennsylvania’s two-year
statute of limitations.

A sufficient showing under the third

prong is therefore absent.

Exercising this court’s discretion,

the requested delay to conduct discovery is not warranted.
In sum, Pennsylvania’s two-year statute of limitations
applies.

See 42 Pa. Cons. Stat. § 5524.

September 2, 2012.

The injury occurred on

(Docket Entry ## 17-1 & 17-3).

Plaintiff

filed suit in Massachusetts Superior Court on June 30, 2015 more
than two years after the injury.

(Docket Entry ## 17-1 & 17-2).

The action is therefore time barred.
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CONCLUSION
In accordance with the foregoing discussion, the motion for
summary judgment (Docket Entry # 16) is ALLOWED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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