ADH Collision of Boston, Inc. v. Wynn Resorts, Limited et al

Filing 32

Judge Richard G. Stearns: ORDER entered granting 18 Motion for Summary Judgment. The motion for summary judgment is ALLOWED. The Clerk will enter judgment for the Wynn defendants and close the case. (RGS, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION No. 19-CV-10246-RGS
ADH COLLISION OF BOSTON, INC.,
v.
WYNN RESORTS, LIMITED; WYNN MA, LLC; WYNN DESIGN &
DEVELOPMENT, LLC
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
July 6, 2020
STEARNS, D.J.
ADH Collision of Boston, Inc. (ADH) is a Massachusetts corporation
that owns and operates an automobile repair shop on leased property at 36
Mystic Street in Everett, Massachusetts. The Wynn defendants – Wynn
Resorts, Limited; Wynn MA, LLC; and Wynn Design & Development, LLC
(collectively “Wynn”) – are Nevada gaming and entertainment companies
that own and operate the Encore resort and casino in Everett. The dispute
arose over Wynn’s attempt to buy 36 Mystic Street from ADH’s landlord,
A&R Trust, in connection with the casino development. ADH’s Complaint
accuses Wynn of tortious interference with its advantageous business and
contractual relations and violations of the Massachusetts unfair or deceptive

business practices statute, Mass. Gen. Laws ch. 93A, § 11.1 Wynn now moves
for summary judgment on both counts of the Complaint. For the reasons
that follow, the motion will be allowed.
BACKGROUND
The facts, viewed in the light most favorable to ADH as the nonmoving
party, are as follows. On November 1, 2014, ADH took possession of 36
Mystic Street under a lease granted by A&R Trust. The initial lease expired
on October 31, 2019, however ADH was given the option of extending the
lease for two consecutive five-year terms. As will be explained, ADH still
occupies the leasehold and continues to operate its auto repair business
undisturbed.
In fleshing out the Encore development, Wynn sought to acquire three
pieces of property in Everett controlled by Rocco Vigorito, the trustee of A&R
Trust, among them 36 Mystic Street. Over the fall of 2015 and until the
summer of 2016, Wynn made Vigorito increasingly lucrative offers starting
at $4.9 million and culminating in a final offer of $9.75 million in June of
2016. As would be expected, the offers were conditioned on the delivery of
the premises “free and clear of all tenants and unencumbered by any existing

1

Jurisdiction in this court is based on the diversity of the parties.
2

or future lease commitments.” Compl. (Dkt # 1) at 2. At all relevant times,
Wynn was aware of ADH’s lease.
When Vigorito approached ADH about a buyout, after some
preliminary negotiations, ADH demanded $2.2 million to vacate its
premises. Vigorito declined to pay and instead, according to the Complaint,
began a campaign of harassment seeking to force ADH’s eviction from the
property.
The campaign eventually landed in the Superior Court where ADH
prevailed. Today, everyone is where they began: ADH still operates its
business at 36 Mystic Street; A&R Trust still owns the property as landlord;
and Wynn has no interest in the property.
The gravamen of the Complaint is distilled in ADH’s allegation that
“Wynn advised the Landlord to ‘find [ADH Collision] in default’ of the Lease
rather than engage in good faith negotiations to pay for the relocation of the
Plaintiff’s business” and “induce[d], direct[ed], and condone[d] the
Landlord’s maneuvers with respect to the Lease.” Compl. at 3, 4.
STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue is only ‘genuine’ if there is sufficient
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evidence to permit a reasonable jury to resolve the point in the nonmoving
party’s favor.” Petsch-Schmid v. Bos. Edison Co., 914 F. Supp. 697, 702 (D.
Mass. 1996), citing NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 32 (1st
Cir. 1994). A court evaluating a motion for summary judgment “must look
at the record in the light most favorable to the party opposing the motion and
must indulge all inferences favorable to that party.”

Stepanischen v.

Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir. 1983).
Summary judgment is appropriate when a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
DISCUSSION
I.

Count I: Intentional Interference with Advantageous Business and
Contractual Relations
Massachusetts courts have rarely distinguished between the tort of

interference with an advantageous business relationship and its cousin,
interference with contractual relations. See United Truck Leasing Corp. v.
Geltman, 406 Mass. 811, 815 n.6 (1990); see also Blackstone v. Cashman,
448 Mass. 255, 259 (2007). To succeed on either claim, a plaintiff must
prove that: (1) it had a contract or advantageous relationship with a third
party; (2) the defendant knowingly induced the third party to break that
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contract or relationship; (3) the defendant’s interference, in addition to being
intentional, was improper in motive or means; and (4) the plaintiff was
harmed by the defendant’s actions. Blackstone, 448 Mass. at 260; G.S.
Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991); Kurker v.
Hill, 44 Mass. App. Ct. 184, 191 (1998).
Knowingly Inducing Breach of Contract
There is no dispute that a contract (the lease) existed between ADH
and A&R Trust (Vigorito) and that Wynn knew it. Nor is there much of an
argument that Wynn, at least indirectly, caused A&R to attempt to terminate
the lease by offering ever larger sums to Vigorito to purchase the property.
As a rule, “hard bargaining and lawful competition generally do not amount
to impermissible interference under Massachusetts law.”

Hamann v.

Carpenter, 937 F.3d 86, 90-91 (1st Cir. 2019). As the Restatement (Second)
of Torts notes, “[e]ven though A knows of B’s contract with C, he may
nevertheless . . . solicit business in normal course. This conduct does not
constitute inducement of breach of the contract.” Restatement (Second) of
Torts § 766 cmt. m (Am. Law Inst. 1979). Similarly, “[o]ne does not induce
another to commit a breach of contract with a third person . . . when he
merely enters into an agreement with the other with knowledge that the

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other cannot perform both it and his contract with the third person.” Id. at
cmt. n.
It follows that Wynn’s offers to buy the property from A&R, even offers
that were conditioned on taking the property tenant-free, do not amount, in
a legal sense, to an unlawful inducement to breach an agreement – in this
case, the lease with ADH. While existing contracts, as in the case here, “seem
to receive greater solicitude” under Massachusetts law than prospective
contracts, Hamann, 937 F.3d at 91, an economic inducement becomes
actionable only when it is coupled, as in Hamann, with threats to cause
another actual harm. (In Hamann, the defendant threatened to destroy the
plaintiff’s business relationship with yet another third party). Unlike in
Hamann, however, ADH offers no evidence that the pressure from Wynn
“went beyond offering . . . more money.” See Hamann, 937 F.3d at 91. While
A&R may have, as ADH speculates, “attempt[ed] to evict Plaintiff through
whatever means necessary,” Opp’n to Defs.’ Mot. for Summ. J. (Dkt # 27) at
8, to keep the extra money for itself, rather than take Wynn’s advice and use
some of it to pay ADH’s relocation costs, A&R’s motives, however suspect,
are not attributable to Wynn.2

The court rejects ADH’s spoliation claim regarding allegedly missing
notes kept by Wynn executive Christopher Gordon of conversations he had
2

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Improper Interference in Motive or Means
To be actionable, the interference must be wrongful beyond the fact of
interference itself; liability only results from improper motives or the use of
improper means. United Truck Leasing, 406 Mass. at 816. 3 Improper
conduct “may include ulterior motive (e.g., wishing to do injury) or wrongful
means (e.g., deceit or economic coercion).” Horne v. City of Bos., 509 F.
Supp. 2d 97, 116 (D. Mass. 2007), quoting Schwanbeck v. Federal-Mogul
Corp., 31 Mass. App. Ct. 390, 412 (1991), rev’d on other grounds, 412 Mass.
703 (1992). “Massachusetts courts will find the improper motive element
met when a defendant exhibits ‘actual malice or a spiteful, malignant
purpose, unrelated to [a] legitimate corporate interest.’” Hamann, 937 F.3d
at 90, quoting Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 43 (1st Cir.
2011).

with Vigorito (Gordon led Wynn’s land-assembly efforts). The claim is both
speculative and untimely (it was made after the close of discovery).
Section 767 of the Restatement (Second) of Torts sets out seven
factors to consider when determining whether interference is improper.
United Truck Leasing, 406 Mass. at 817 n.10. These factors are: (1) the
nature of the actor’s conduct; (2) the actor’s motives; (3) the interests of the
other with which the actor’s conduct interferes; (4) the interests sought to be
advanced by the actor; (5) The social interests in protecting the freedom of
action of the actor and the contractual interests of the other; (6) The
proximity or remoteness of the actor’s conduct to the interference and (7) the
relations between the parties. Restatement (Second) of Torts § 767.
3

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The improper motive or means requirement enables a court to
“distinguish[] truly inappropriate behavior for which there should be a
remedy from normal competitive behavior permissible in the marketplace.”
Pembroke Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass. App.
Ct. 34, 38 (2004). “For competition and for the rough and tumble of the
world of commerce, there is tolerance, even though the fallout of that rough
and tumble is damage to one of the competitors.” Melo-Tone Vending, Inc.
v. Sherry, Inc., 39 Mass. App. Ct. 315, 319 (1995) (citations omitted). If a
defendant “is not acting criminally nor with fraud or violence . . . but is
endeavoring to advance some interest of his own, the fact that he is aware
that he will cause interference with the plaintiff’s contract may be . . . so far
removed from the defendant’s objective that . . . the interference may be
found to be not improper.” Restatement (Second) of Torts § 766 cmt. j.
When a defendant’s purpose is the legitimate advancement of its own
economic interest, that motive is not “improper.” See Pembroke Country
Club, 62 Mass. App. Ct. at 39. “That the plaintiff may have suffered a loss as
a consequence of the defendant’s pursuit of its own interest is a by-product
of a competitive marketplace; it does not render the defendant’s effort
tortious.” Id.; see Restatement (Second) of Torts § 768(1)(d) cmt. g (“If [the
interfering party’s] conduct is directed, at least in part, to [advancing its
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competitive interest], the fact that [it] is also motivated by other impulses,
as, for example, hatred or a desire for revenge is not alone sufficient to make
[its] interference improper”).
No evidence indicates that Wynn acted with improper motive or
through improper means – only that Wynn was ardently pursuing its own
economic interests. Unlike in Melo-Tone, where the defendant paid to have
his competitor’s machines unlawfully moved and subsidized the third party’s
legal defense against that competitor, ADH concedes that Wynn never
threatened it in any way. See Melo-Tone Vending, 39 Mass. App. Ct. at 320.
There is similarly no evidence that Wynn misrepresented any facts, defamed
anyone, indicated an intent to harm ADH or exhibited any motive other than
to benefit itself financially. See United Truck Leasing, 406 Mass. at 817; see
also Skyhook Wireless, Inc. v. Google Inc., 86 Mass. App. Ct. 611, 622 (2014)
(affirming summary judgment where there was no evidence that Google used
threats, misrepresented facts, or used any other improper means). Nor did
Wynn, contrary to ADH’s assertion, have any obligation to negotiate with it
directly.
Plaintiff Harmed by Defendant’s Actions
A plaintiff cannot recover on a claim for tortious interference “where
[it] ha[s] failed to show that [it] ha[s] suffered any pecuniary loss as a result
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of the defendant’s actions.” Hamann, 937 F.3d at 93, quoting Tech Plus, Inc.
v. Ansel, 59 Mass. App. Ct. 12, 18 (2003). ADH has failed to establish a
genuine issue of fact as to whether it suffered actual damages because of
Wynn’s alleged conduct. See Horne, 509 F. Supp. 2d at 116 (granting
summary judgment where plaintiff failed to demonstrate any economic
damages caused by defendant’s conduct). ADH alleges that it suffered
irreparable harm because of the loss of its business relationship with A&R
and had to incur the costs of litigation that ensued as a result of A&R’s
attempts to terminate the lease. These are matters, however, that arose from
the failure of ADH and A&R to come to an agreement over the existing lease,
not matters attributable in any legal sense to Wynn. As to specific damages
beyond litigation costs, ADH failed to adduce any evidence before discovery
closed. In fact, when asked what damages ADH was seeking to recover from
Wynn, ADH’s sole Rule 30(b)(6) designee Adam Haddad said, “I’ll have to
get back to you on that.” Def.’s Statement of Undisputed Facts (Dkt # 20) ¶
44. When asked how much money ADH was seeking because of the lost
relationship with Vigorito, Haddad answered “I don’t know.” Id. ¶ 45. In the

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absence of specific evidence, the claim of damages fails to rise above
“speculative [or] conjectural.” G.S. Enters., 410 Mass at 276. 4
II.

Count II: Violations of Massachusetts General Laws Chapter 93A
“Although whether a particular set of acts, in their factual setting, is

unfair or deceptive is a question of fact . . . the boundaries of what may qualify
for consideration as a G.L. c. 93A violation is a question of law.” Moore v.
La-Z-Boy, Inc., 639 F. Supp. 2d 136, 144 (D. Mass. 2009), quoting R.W.
Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73 (2001)
(finding no Chapter 93A violation where situation was merely “a
mundane . . . loss

of

a

business

relationship

to

a

more

attractive . . . competitor”). To sustain a Chapter 93A claim, the conduct
must lie “‘within at least the penumbra of some common-law, statutory or
other established concept of unfairness,’ or rise to the level of immoral,
unethical, oppressive or unscrupulous, and result in substantial injury to
competitors or other business people.” James L. Miniter Ins. Agency, Inc.
v. Ohio Indem. Co., 112 F.3d 1240, 1251 (1st Cir. 1997), quoting Industrial
Gen. Corp. v. Sequoia Pac. Sys. Corp., 44 F.3d 40, 43 (1st Cir. 1995). The

ADH sought to produce evidence of damages only in its opposition to
Wynn’s motion for summary judgment. Discovery closed December 23,
2019. Wynn had already filed its dispositive motion and therefore Wynn
would be prejudiced by consideration of the late blooming proffer.
4

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conduct must reach “‘a level of rascality that would raise [the] eyebrow of
someone inured to the rough and tumble of the world of commerce.’” Id.
ADH’s Chapter 93A claim is wholly derivative of its tortious
interference claim. See Compl. ¶ 55 (“Wynn’s unfair or deceptive trade acts
or practices . . . include intentionally interfering with ADH Collision’s
advantageous business and contractual relation with the Landlord through
improper means and for its sole advantage.”). When a Chapter 93A claim is
wholly derivative of the tortious interference claim, and where “the evidence
[is] insufficient to establish improper motive or improper means on the part
of the defendant, it is likewise insufficient to establish an unfair method of
competition or an unfair or deceptive act or practice.” Pembroke Country
Club, 62 Mass. App. Ct. at 41. Because ADH failed to identify genuine issues
of material fact regarding improper means or motive or any damages it may
have suffered, the tortious interference claim fails, and the Chapter 93A
claim with it. See FAMM Steel, Inc. v. Sovereign Bank, 571 F.3d 93, 107-108
(1st Cir. 2009).

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ORDER
For the foregoing reasons, the motion for summary judgment is
ALLOWED. The Clerk will enter judgment for the Wynn defendants and
close the case.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

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