Boston Executive Helicopters v. Francis T. Maguire et al

Filing 253

Judge Richard G. Stearns: ORDER entered denying 232 Motion to Enforce Settlement Agreement, Impose Sanctions, and Award Attorneys' Fees (RGS, law1).

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-13647-RGS
BOSTON EXECUTIVE HELICOPTERS, LLC
v.
FRANCIS T. MAGUIRE, et al.
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO ENFORCE
SETTLEMENT AGREEMENT, IMPOSE SANCTIONS,
AND AWARD ATTORNEYS’ FEES
November 20, 2020
STEARNS, D.J.
After prolonged litigation, plaintiff Boston Executive Helicopters, LLC
(BEH), and defendants Town of Norwood (Town), Norwood Airport
Commission (NAC), and the individually named Town and NAC officials
(collectively, Norwood) reached an agreement to settle their dispute on the
eve of a December 10, 2018 trial. Months of contentious motion practice
followed over what the parties had exactly agreed upon. After some prodding
by the court, on July 30, 2019, the parties reported that they had achieved a
“valid, enforceable settlement agreement (Agreement).” Dkt # 220. At the
parties’ request, the court agreed to retain jurisdiction to enforce the terms
of the Agreement should it become necessary. See Dkt # 228. The parties

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stipulated to a dismissal of the litigation with prejudice on September 12,
2019. See Dkt # 229.
BEH now alleges that defendants have breached six provisions of the
Agreement, see Dkt # 234-1 (Agm’t), and seeks specific performance and the
imposition of sanctions. BEH asserts that defendants (1) failed to provide
BEH an encumbrance-free lease for the promised amount of ramp space at
Norwood Airport; (2) undermined BEH’s petition to the FAA seeking
approval for the removal of all taxi lane object free area (TOFA) markings on
Taxiway 3; 1 (3) failed to contemporaneously distribute copies of all email
and correspondence by, between, and among the Town, NAC, FlightLevel,
and/or BEH; (4) refused to allow BEH to participate in meetings with the
FAA or to have a “seat at the Table” in negotiating a Joint Corrective Action
Plan (JCAP); (5) failed to provide proper oversight by the Board of Selectmen

BEH also lists as a breach of the Agreement that Norwood failed to
provide the “appropriate turn around” at the Taxiway 3 access area. Mot.
at 1. It is unclear whether BEH’s complaints about Taxiway 3’s supposedly
inadequate turn around and its attempt to remove the TOFA markings are
related. In any event, the court recognizes that the Agreement requires NAC
“to construct a pedestrian access gate at Taxiway 3 . . . within ninety (90)
days of the execution of this agreement” that has “[a]ppropriate turnaround
and lighting.” Agm’t § 4. However, neither party has addressed this
purported violation of the Agreement with sufficient detail for the court to
rule on the claim of a breach.
2
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over dealings between NAC and BEH; and (6) retaliated against BEH in
response to its demands. Mot. at 1-2.
DISCUSSION
“[A] suit to enforce a settlement is a contract dispute which requires a
new jurisdictional basis to be heard in federal court.” Quincy V, LLC v.
Herman, 652 F.3d 116, 121 (1st Cir. 2011). However, “[a]ncillary jurisdiction
exists where the district court has ensured its continuing jurisdiction to
enforce a settlement agreement . . . by ‘including a provision explicitly
retaining [enforcement] jurisdiction.’” Baella-Silva v. Hulsey, 454 F.3d 5,
10 (1st Cir. 2006), quoting Lipman v. Dye, 294 F.3d 17, 20 (1st Cir. 2002).
The court agreed to “retain jurisdiction over th[is] case to resolve any
disputes that may arise from the implementation of the settlement
agreement’s terms.” Dkt # 228 (emphasis added). Any grievances that arise
outside of the four corners of the Agreement, however, lie outside the ambit
of the court’s jurisdiction. Cf. Lipman, 294 F.3d at 21.
Violations of the Agreement
A settlement agreement is interpreted in the same manner as any other
contract. See, e.g., Perry v. F.D.I.C., 2010 WL 5349883, at *6 (D. Mass.
Dec. 21, 2010). Contract interpretation is generally a question of law for the
court.

Teragram Corp. v. Marketwatch.com, Inc., 444 F.3d 1, 9 (1st
3

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Cir. 2006). The court construes the Agreement as an integrated whole
according to its plain meaning, McAdams v. Mass. Mut. Life Ins. Co., 391
F.3d 287, 298-299 (1st Cir. 2004), and will enforce any unambiguous terms,
Schwanbeck v. Fed.-Mogul Corp., 412 Mass. 703, 706 (1992).
1) Lease for West Apron and DC-3 Ramps
BEH first argues that Norwood failed to provide it with a lease for the
Agreement’s promised amount of ramp space “free of encumbrances”
because FlightLevel, another airport operator, has claimed preexisting
access rights over the same ramp space. Mot. at 1, 15-16. Norwood responds
that BEH received a proposed lease consistent with the terms of the
Agreement.
Norwood has the better of the arguments. The Agreement entitles BEH
only to “standard form, non-exclusive lease agreements . . . for . . . the West
Apron . . . and . . . the DC-3 Ramp.” Agm’t § 3 (emphasis added). The term
“non-exclusive” means “not limited to only one person or organization, or to
one group of people or organizations.” 2 This language does not support
BEH’s demand for a lease “free of encumbrances.” BEH received what it was

Cambridge Dictionary,
https://dictionary.cambridge.org/us/dictionary/english/non-exclusive
(last visited Nov. 19, 2020).
4
2

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due under the Agreement, that is, a lease granting unrestricted access to the
ramp space.
BEH makes no forceful argument to the contrary but contends that
Norwood “concealed” FlightLevel’s access rights during the settlement
discussions and now “attempt[s] to re-write history.” Mot. at 4-9; Reply at 7.
The court will not consider this allegation for two reasons (putting aside the
improbability that BEH would never have taken note of FlightLevel’s airport
operations).

First, courts do not consider extrinsic evidence when a

contract’s language is unambiguous, as is the case here. Sound Techs., Inc. v.
Hoffman, 50 Mass. App. Ct. 425, 429 (2000). Although BEH ostensibly
“would never [have] accept[ed] a lease that had encumbrances,” Mot. at 9,
BEH’s submissions concerning the parties’ negotiations and performance of
the Agreement are an attempt to vary the plain meaning of terms under
which it in fact accepted the lease. See Pls.’ Reply at 1-7. The Agreement’s
integration clause, see Agm’t § 21, cements this conclusion. Simon v. Simon,
35 Mass. App. Ct. 705, 713 n.9 (1994) (a finding that an agreement is not
integrated is a “predicate” to considering extrinsic evidence). Second, BEH’s
theory sounds in fraud in the inducement, not enforcement of a contract, and

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thus exceeds the court’s ancillary jurisdiction over the enforcement of the
Agreement.3
Because BEH does not contest that Norwood offered non-exclusive
leases to the West and DC-3 ramps, the court finds that Norwood complied
with its obligations as to this provision of the Agreement.
2) Removal of TOFA Markings
BEH next argues that Norwood undermined its petition to the FAA to
remove TOFA markings on Taxiway 3 – and in fact submitted even more
stringent TOFA measurements to the FAA in its 2020 Technical Master Plan
Update (TMPU). But Norwood states that it met its full obligation under the
Agreement when it submitted a letter in support of BEH’s petition to the
FAA.
The Agreement provides:
“BEH shall prepare a petition to the FAA, with appropriate plans
or drawings, seeking approval for the removal of all TOFA . . .
markings on Taxiway 3. The NAC shall submit a letter to the FAA
in support of BEH’s petition . . . within thirty (30) days after the
receipt of BEH’s submission to the FAA. If approved by the FAA,
While “a trial court may not summarily enforce a purported
settlement agreement if there is a genuinely disputed question of material
fact regarding the existence or terms of that agreement,” Malave v. Carney
Hosp., 170 F.3d 217, 220 (1st Cir. 1999), here the parties do not dispute the
existence or wording of the Agreement. See Dkt # 220, Reply at 7. BEH
cannot simultaneously allege fraud in the inducement to overcome the
integration clause, see Reply at 7-8, while representing that the Agreement
is valid.
6
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the TOFA/OFA markings on Taxiway 3 shall be removed by the
NAC within sixty (60) days.”
Agm’t § 9 (emphasis added).
The parties agree that NAC sent a letter supporting BEH’s petition to
the FAA on November 20, 2019, but quibble over whether NAC acted within
the 30-day window stipulated in the Agreement. See Mot. at 10; Opp’n at 1112. 4 Even if NAC bumbled this deadline, it is not clear what relief the court
could order.

BEH seeks specific performance, yet NAC did send the

supportive letter required by the Agreement over a year ago, and there is no
argument that it was received too late by the FAA to be considered in its
ruling on BEH’s petition. See, e.g., Med. Prac. Mgmt., Inc. v. Bos. IVF, Inc.,
67

Mass.

App.

Ct.

1102,

1102

n.3

(2006)

(“[Plaintiff’s]

claim

for specific performance of an accounting is moot as the accounting had
been completed.”). It is not alleged that the FAA granted BEH’s petition,
which was a prerequisite to NAC’s removal of the TOFA markings, and the
Agreement, of course, had no binding effect on the FAA’s decision making
(nor could it have). 5
Norwood maintains that BEH did not provide “appropriate plans or
drawings” with its initial August 26, 2019 petition, and that Norwood did not
receive notice of BEH’s October 16, 2019 correction until October 31, 2019.
Opp’n at 11; Makarious Aff. ¶ 21; Dkt # 243-19.
4

BEH’s secondary argument that NAC’s implementation of stricter
TOFA markings at BEH’s hangar in June of 2020 “violates the letter and
7
5

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3) Distributing Correspondence
BEH next alleges that Norwood breached the Agreement by failing to
circulate contemporaneously all correspondence between itself, NAC,
FlightLevel, and/or BEH. Norwood counters that BEH does not identify any
correspondence which has allegedly been withheld. Opp’n at 13.
According to a handwritten clause in the Agreement:
For a period of eighteen (18) months following execution of this
Agreement . . . the Town and the NAC agree to copy, or distribute
copies, to both BEH and FlightLevel . . . any and all email and
correspondence, by and between the NAC and BEH or
F[lightLevel],
contemporaneously
with
any
such
communications.
Agm’t at 6.
Norwood represents that it “has provided [to] BEH and FlightLevel a
weekly package” of correspondence since entering into the Agreement
spirit of the . . . Agreement” also fails. Mot. at 11. The structure of § 9 limits
Norwood’s obligation to “support” the removal of TOFA markings only in its
submission to the FAA. The court agrees with Norwood that “nothing in the
Agreement guarantees BEH a lease area free of TOFAs” – especially since the
Agreement provides for a non-exclusive lease – and the process for
petitioning the FAA outlined in § 9 reflects that these markings are “not
within Norwood’s sole power to remove.” Opp’n at 5.
Nor do the increased TOFA markings violate the terms of BEH’s ramp
leases. Reply at 5-7. The Agreement entitles BEH to approximately 72,000
sq. ft. at the West Apron and 15,295 sq. ft. at the DC-3 Ramp but is otherwise
silent as to the nature of the leased space. See Agm’t § 3. The court will not
enjoin NAC from a “plan to increase the TOFA/OFA area to the detriment of
BEH,” Mot. at 16, because the Agreement makes no provision for granting
this type of relief.
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although acknowledges belatedly turning over a few hundred pages of
correspondence in July of 2020. Opp’n at 12-13. To the extent that these
communications form the basis of BEH’s claim, see, e.g., Donovan Aff. ¶ 129
(listing documents already produced as examples of Norwood’s breach), it is
unclear what relief BEH seeks, as this provision of the Agreement was
eventually, if unevenly, performed. While BEH also claims that “other letters
and communications have apparently not been provided to BEH despite
many requests,” Mot. at 13, it does not identify any documents specifically or
generically that it has in mind. The court cannot order the production of
documents that a party cannot identify or describe.
4) Joint Corrective Action Plan
BEH also challenges Norwood’s alleged failure to allow BEH to
participate in FAA meetings or to have a “seat at the Table” in negotiating a
JCAP to remedy Norwood’s alleged violations of FAA leasing requirements.
BEH states that, other than attending two meetings in October of 2019, it has
not attended any subsequent meetings regarding the JCAP – and further that
the October meetings did not include the FAA.
The Agreement provides “that BEH shall be allowed to participate in
any meetings . . . regarding the negotiation with the FAA regarding . . . the
goal of crafting a ‘[JCAP].’” Agm’t § 8. BEH’s argument that this language
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of the Agreement entitles it to a “seat at the Table” with the FAA and the right
“to attend any FAA meetings regarding the [J]CAP” is something of a stretch.
Donovan Aff. ¶¶ 140-141, 144.

BEH attempts to equate meetings

“regarding” the subject of FAA negotiations (which is what the Agreement
stipulated) with meetings at which the FAA is in attendance. 6

BEH’s

involvement in the October 9 and 15, 2019 meetings, which are the only
meetings regarding the JCAP that have taken place thus far, see Pls.’ Reply
at 12, fully satisfies the terms of the Agreement.
5) Board of Selectmen Oversight
The next alleged violation of the Agreement concerns whether the
Board of Selectmen provided proper oversight of dealings between NAC and
BEH given that the Board’s liaison also “represents . . . NAC and the Town.”
Mot. at 15; Donovan Aff. ¶¶ 137-139. More specifically, the designated liaison
is a member of the law firm that represents the collective defendants in this
litigation. As the designated liaison, he participated in the operational

At most, the Agreement requires the NAC to “allow BEH to explain to
the FAA its view of the value of the so called Verizon land to the NAC, and
offer suggestions as to why it should be recovered by the NAC for
aeronautical use.” Agm’t § 8. This language, which is silent on how BEH was
to go about providing this explanation, does not require a face-to-face
meeting between BEH and the FAA.
10
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meetings held between the Board, NAC, and BEH in August and September
of 2020. Makarious Aff. ¶¶ 26.
Under the relevant terms of the Agreement, the Town’s “Board of
Selectmen[] shall appoint a member of the Board . . . or a designated liaison
to attend NAC meetings at which an item concerning or related to BEH . . .
appears on the NAC agenda for eighteen (18) months.” Agm’t § 5. The
Agreement also requires “the Airport Manager, a representative of the NAC,
the Selectmen liaison . . . and a representative of BEH [to] meet monthly in
a good faith effort to discuss operational issues and to resolve specific
disagreements or disputes that may arise between them.” Id. § 6.
“[A] contract is to be construed to give reasonable effect to each of its
provisions.” McMahon v. Monarch Life Ins. Co., 345 Mass. 261, 264 (1962).
While the language of § 5 requires the Board to “designate[] [a] liaison,” it
does not specify that the chosen liaison be independent of any ties with
Norwood or be a disinterested party. Nor does § 5 preclude the liaison from
filling dual roles at required meetings. BEH does not maintain, nor would it
have standing to assert, a conflict of interest between the Board and NAC,
the parties represented by the Board’s chosen liaison. Contrary to BEH’s
contention that this arrangement “effectively provid[es] no oversight
whatsoever” because the Board’s liaison owes a duty of loyalty to NAC,
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Donovan Aff. ¶ 139, BEH does not allege that the interests of Norwood’s
counsel are inconsistent with the liaison’s responsibilities under the
Agreement, such as “periodically report[ing] to the Board of Selectmen.”
Agm’t § 5.
6) Retaliation Against BEH
Finally, BEH argues that Norwood has breached the Agreement by
retaliating against BEH for exercising its constitutional right of petition.
Although Norwood provides no response to this argument, the court will not
consider the allegation. Retaliation is not a contractual breach, but rather an
independent legal claim, which exceeds the court’s ancillary jurisdiction to
enforce the Agreement.
Sanctions and Attorneys’ Fees
BEH seeks sanctions, namely attorneys’ fees and 0ther costs, for the
alleged breaches of the Agreement. BEH proffers two theories to support the
request for fees: bad faith and the third-party exception.
A court may award sanctions, including attorneys’ fees, upon finding
that a party has “acted in bad faith, vexatiously, wantonly, or for oppressive
reasons.” Chambers v. Nesco, Inc., 501 U.S. 32, 45-46 (1991), quoting
Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 258-259 (1975);
see also Mullane v. Chambers, 333 F.3d 332, 337-338 (1st Cir. 2003). But
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“a court’s inherent power to shift attorneys’ fees ‘should be used sparingly
and reserved for egregious circumstances.’” Whitney Bros. Co. v. Sprafkin,
60 F.3d 8, 13 (1st Cir. 1995), quoting Jones v. Winnepesaukee Realty, 990
F.2d 1, 3 (1st Cir. 1993).
Underlying BEH’s theory of bad faith is the allegation that Norwood’s
“bait and switch” tactics during settlement discussions concealed the
encumbrances on BEH’s lease. But this argument fails for the same lack of
jurisdiction that defeats many of BEH’s alleged violations of the Agreement.
Even if the court had the authority to consider the settlement negotiations,
“it is impossible for the court, given the vehemence of the accusations and
counter-accusations, to sort out who bears responsibility for the[se] painful
disputes.” LD Assocs., Inc. v. Krant, 2010 WL 4485900, at *1 (D. Mass.
Nov. 9, 2010) (Ponsor, J.) (denying motions for sanctions because the parties
failed to demonstrate bad faith). And the court cannot accept that BEH was
forced “to expend a significant amount of money litigating the enforceability
of the settlement just to obtain that for which it originally bargained,” Mot.
at 19, given that the court has found no material breaches of the Agreement
itself.
BEH’s argument for applying Massachusetts’s third-party attorney fee
exception, pursuant to which “attorneys’ fees can be collected as part of
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damages when ‘tortious conduct . . . requir[es] the victim of the tort to sue or
defend against a third party in order to protect his rights,’” RFF Family
P’ship, LP v. Ross, 814 F.3d 520, 535 (1st Cir. 2016), quoting M.F. Roach Co.
v. Town of Provincetown, 355 Mass. 731, 732 (1969), is also unavailing. BEH
alleges that Norwood’s nondisclosure of encumbrances on the leased ramps
caused BEH to be sued by FlightLevel over the disposition of this third
party’s property rights. As explained above, the court lacks jurisdiction to
pass on the settlement negotiations; it follows that it cannot award sanctions
for a dispute that it cannot evaluate.
Because the court does not find that BEH was “denied the resolution
for which it bargained,” Mot. at 19, there is no proper basis for an imposition
of sanctions.
ORDER
For the foregoing reasons, BEH’s motion to enforce the settlement
agreement, impose sanctions, and award attorneys’ fees is DENIED.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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