Massachusetts Bay Transportation Authority v. Clear Channel Outdoor, Inc. (Lawyers Weekly No. 09-017-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00268-BLS2 ____________________ MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. CLEAR CHANNEL OUTDOOR, INC. ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR PRELIMINARY INJUNCTION This lawsuit arises from the imminent expiration of a 15-year license agreement under which Clear Channel Outdoor, Inc., has been operating billboards on property owned by the Massachusetts Bay Transportation Authority. The MBTA recently issued a request for responses by parties willing to enter into a six month license to operate the same billboards after the current license expires. The MBTA received bids from Outfront Media LLC, which agreed to enter into a six-month license, and Clear Channel, which refused to accept a term that short. The MBTA disqualified Clear Channel. It then awarded a six-month license to Outfront Media. The MBTA brought this suit seeking declarations that its request for responses was lawful, Clear Channel is not entitled to enforce its right of first refusal, and Clear Channel is contractually obligated to transfer the disputed billboards as well as whatever permits are needed to operate the billboards to the MBTA. Clear Channel has asserted counterclaims alleging that the MBTA breached the existing contract by offering a new license on terms that are not commercially reasonable and by not allowing Clear Channel to exercise its contractual right of first refusal, and that Clear Channel therefore has no contractual obligation to transfer the billboard structures to the MBTA at the end of the current license term. The MBTA now seeks a preliminary injunction that would bar Clear Channel from interfering with any use of the billboards on MBTA property, or terminating or otherwise disposing of its existing permits for billboards on MBTA property. Clear Channel seeks a preliminary injunction that would bar the MBTA from proceeding with the new license it has issued to Outfront Media or otherwise interfering with Clear Channel’s ownership of billboard structures and associated permits. The Court will ALLOW the MBTA’s motion and DENY Clear Channel’s motion. – 2 – 1. Legal Background. 1.1. The Public Interest in MBTA Advertising Revenues. The MBTA is a governmental entity, established by the Legislature as a “political subdivision of the commonwealth” that consists of 65 cities and towns within the MBTA’s service area. G.L. c. 161A, § 2 (political subdivision) & § 1 (defining the cities and towns within the “area constituting the authority”). The MBTA is now governed by the board of directors of the Massachusetts Department of Transportation. Id. § 3. “The MBTA’s essential function is to provide mass transportation services” in the greater Boston metropolitan area. See Massachusetts Bay Transp. Auth. v. City of Somerville, 451 Mass. 80, 86 (2008). The MBTA obtains most of its operating funds from taxes […]
Massachusetts Bay Transportation Authority v. Clear Channel Outdoor, Inc. (Lawyers Weekly No. 09-006-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00268-BLS2 ____________________ MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. CLEAR CHANNEL OUTDOOR, INC. ____________________ MEMORANDUM AND ORDER DENYING CLEAR CHANNEL’S MOTION FOR A TEMPORARY RESTRAINING ORDER In 2003 the Massachusetts Bay Transportation Authority granted Clear Channel Outdoor, Inc., a 15-year license to operate billboards on MBTA property. That license will expire in early March 2018.1 The MBTA recently issued a request for responses by parties willing to enter into a six month license to operate the same billboards beginning after the Clear Channel license expires. The MBTA received bids from Outfront Media LLC, which agreed to enter into a six-month license, and Clear Channel, which refused to accept a term that short. The MBTA disqualified Clear Channel. It intends to award a six-month license to Outfront Media. The MBTA brought this action. It seeks declarations that its recent request for responses is lawful, Clear Channel is not entitled to enforce a right of first refusal contained in its 2003 license, and neither of these disputes is subject to the arbitration clause in the 2003 license. It also seeks certain preliminary injunctive relief to enforce terms of the parties’ existing license. The parties agreed upon a schedule for the filing of cross-motions for a preliminary injunction, with a hearing on those motions now scheduled for February 22. Clear Channel has filed an emergency motion seeking a temporary restraining order that would bar the MBTA from taking any steps to license its billboards to or contract with Outfront Media, or from “interfering in any way with Clear Channel’s rights in the billboards themselves or the permits necessary to operate those billboards.” The Court will DENY this motion for a TRO because Clear Channel has not met its burden of showing that it is entitled to the requested relief. “A preliminary 1 The parties have submitted two different versions of their license. One states that it terminates on March 3, the other says March 5. – 2 – injunction [or a TRO] is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs [have] made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). Clear Channel has not yet made such a showing. 1. Clear Channel Has Asserted No Claims. Clear Channel’s request for injunctive relief is premature because Clear Channel has not asserted any counterclaims or any other kind of affirmative claim against the MBTA. To obtain preliminary injunctive relief, “the applicant must show a likelihood of success on the merits […]
Mui v. Massachusetts Port Authority (Lawyers Weekly No. 10-016-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12296 TZE-KIT MUI vs. MASSACHUSETTS PORT AUTHORITY. Suffolk. November 6, 2017. – January 29, 2018. Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ. Massachusetts Wage Act. Massachusetts Port Authority. Public Employment, Sick leave benefits. Civil action commenced in the Superior Court Department on October 17, 2014. The case was heard by Robert B. Gordon, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Laurie F. Rubin for the defendant. Kevin C. Merritt for the plaintiff. David J. Fried, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. BUDD, J. The plaintiff, Tze-Kit Mui, sued his former employer, Massachusetts Port Authority (Massport or agency), alleging that Massport failed to timely compensate him for his accrued, unused sick time under the Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act or act). A Superior Court judge allowed Mui’s motion for judgment on the pleadings. Massport appealed, and we transferred the case here on our own initiative. Because we conclude that payment for accrued, unused sick time (sick pay) does not count as “wages” under the act, we vacate the judgment and remand the matter to the Superior Court.[1] Background. In 2013, Massport initiated disciplinary proceedings against Mui, a longtime employee.[2] One week later, he applied for retirement. Massport’s employees’ retirement system set Mui’s retirement date retroactively, despite the fact that the disciplinary proceedings had not been resolved. Several weeks later, Massport discharged Mui for cause.[3] The termination was subsequently overturned pursuant to a grievance procedure.[4] Under Massport’s sick pay policy, eligible employees receive payment for a percentage of the value of their accrued, unused sick time upon separation from the agency.[5] Employees who are discharged for cause are not eligible for sick pay. Prior to the completion of the grievance process, Massport’s position was that because the agency initiated disciplinary proceedings against Mui by suspending him prior to his application for retirement, and then terminated him (an action that was later reversed), he was not entitled to any sick pay. Once the arbitrator ruled that Massport could not terminate Mui because he had already retired, the agency paid the value of Mui’s accrued sick time pursuant to its policy. Because of the grievance […]
Brockton Housing Authority v. Mello (Lawyers Weekly No. 11-010-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1708 Appeals Court BROCKTON HOUSING AUTHORITY vs. KEITH G. MELLO. No. 16-P-1708. Plymouth. November 6, 2017. – January 26, 2018. Present: Sullivan, Blake, & Singh, JJ. Housing Authority. Landlord and Tenant, Termination of tenancy. Controlled Substances. Words, “Keeping.” Civil action commenced in the Southeast Division of the Housing Court Department on January 25, 2016. The case was heard by Anne Kenney Chaplin, J. Laura F. Camara for the defendant. Caitlin P. Milone for the plaintiff. SULLIVAN, J. Three months into Keith G. Mello’s occupancy of a one-bedroom apartment at the Caffrey Towers development (premises or apartment), the Brockton Housing Authority (BHA) filed an action pursuant to G. L. c. 139, § 19, to void his tenancy. Following a trial, a judge of the Southeastern Housing Court ruled that Mello “engaged in conduct, and allowed his guests to engage in conduct, which constitutes the keeping of controlled substances in the premises.” She entered a judgment voiding the lease and permanently enjoining Mello from entering any portion of Caffrey Towers, a Federally subsidized housing development for the elderly and the disabled. See New Bedford Hous. Authy. v. Olan, 435 Mass. 364, 369 (2001) (Olan). Mello appeals from the final judgment.[1] We affirm. Background. We summarize the facts as found by the judge. Dennis Sheedy, a BHA asset manager, observed Mello’s guests arriving at Caffrey Towers in an impaired state, and unwilling (or unable) to cooperate with security. On December 1, 2015, Anthony Giardini, a Brockton police officer who served as the community liaison to the BHA conducted an investigation into complaints in or about the premises. As he approached Mello’s apartment, he heard loud voices coming from inside and smelled the odor of “some sort of substance.”[2] After entering the apartment, Officer Giardini saw three people, including Mello, sitting in a room. There was smoke that smelled like marijuana and crack cocaine. He observed drug paraphernalia in plain view, including a flat mirror “lined horizontally,” lying on a room partition, a debit card, and the remains of what could be a filter for a crack pipe. He also saw two daggers, one of which was next to the mirror within reach of Mello, who was in “an intoxicated state.” Officer Giardini concluded that those present in the apartment had been smoking […]
Massachusetts Bay Transportation Authority v. Boston and Maine Corporation, et al. (Lawyers Weekly No. 12-124-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-00153-BLS1 MASSACHUSETTS BAY TRANSPORTATION AUTHORITY vs. BOSTON AND MAINE CORPORATION & others1 MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF MASSACHUSETTS BAY TRANSPORTATION AUTHORITY’S PARTIAL MOTION TO DISMISS DEFENDANTS’ COUNTERCLAIMS Plaintiff, Massachusetts Bay Transportation Authority (MBTA), filed this action for declaratory and injunctive relief against defendants, Boston and Maine Corporation, Springfield Terminal Railway Company, and Pan Am Southern LLC (referred to collectively as “Pan Am”). The dispute involves the implementation of positive train control (PTC), a safety system aimed at preventing train accidents. Pan Am alleged eleven counterclaims against the MBTA. MBTA now moves to dismiss three of the counterclaims pursuant to Mass. R. Civ. P. 12(b)(6). The three counterclaims allege misrepresentation (Count VIII), promissory/equitable estoppel (Count IX), and violation of G.L. c. 93A, § 11 (Count X). For the reasons stated below, the MBTA’s motion to dismiss is allowed. BACKGROUND The facts as revealed by Pan Am’s counterclaims are as follows. The MBTA is a body politic and corporate and a political subdivision of the 1 Springfield Terminal Railway Company and Pan Am Southern LLC. Commonwealth of Massachusetts. It operates bus, subway, commuter rail, and ferry systems in and around Boston, Massachusetts. The Pan Am defendants operate freight lines over tracks that, in some instances, are owned and/or used by the MBTA. Since 2010, Pan Am worked closely and cooperatively with the MBTA to plan and prepare for the implementation of PTC on tracks over which both parties operate. The parties worked to comply with a 2008 federal mandate requiring that PTC be implemented on certain rail lines, including lines that carry certain minimum levels of passenger traffic. PTC is designed to prevent train-to-train collisions, derailments resulting from excessive speed, and other types of accidents. Generally, PTC uses a combination of on-board and rail-side technology to track and control train movements on the rail lines outfitted with this technology. In this dispute, the rail lines affected include both MBTA-owned trackage, over which Pan Am operates freight trains pursuant to a reserved freight easement, and Pan Am-owned trackage, over which the MBTA initiated and expanded commuter rail operations at the end of 2016. According to Pan Am, under federal law, PTC must be implemented on the rail lines at issue because the MBTA operates passenger trains on them. Absent the MBTA’s use of these rail lines, no PTC system is required. In addition, freight trains may not operate on tracks handling passenger traffic that are required to have PTC unless those freight trains are equipped with a PTC system that is compatible with the commuter rail’s PTC system. After the federal government imposed the 2008 PTC requirements, Pan Am alleges that […]
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Rodriguez v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-099-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-942 Appeals Court RAQUEL RODRIGUEZ[1] vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY. No. 16-P-942. Suffolk. April 7, 2017. – July 31, 2017. Present: Grainger, Sullivan, & Kinder, JJ.[2] Massachusetts Bay Transportation Authority, Contract. Railroad. Contract, What constitutes, Offer and acceptance. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on November 10, 2015. A motion to dismiss was heard by Mitchell H. Kaplan, J. Thomas G. Shapiro (Robert Richardson & Edward C. Cumbo also present) for the plaintiff. David S. Mackey (Christina S. Marshall also present) for the defendant. KINDER, J. In this case we address whether a public transportation authority breaches a contract with its commuter rail customers when extraordinary winter storms interrupt the service schedule. For the reasons that follow, we conclude that in the circumstances presented here, it does not. Accordingly we affirm the judgment of dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a breach of contract claim. On April 22, 2015, the plaintiff, Raquel Rodriguez, brought this action against the Massachusetts Bay Transportation Authority (MBTA) and its commuter rail operator, Keolis Commuter Services, LLC (Keolis), on behalf of a putative class of purchasers of monthly rail passes in January, February, and March, 2015. The complaint alleged that the MBTA commuter rail service suffered severe delays and cancellations during the record-setting snowstorms of 2015. Rodriguez claimed that these service disruptions were in breach of the MBTA’s implied contract “to provide timely, reliable commuter rail service . . . for January, February and March of 2015.” In a comprehensive written decision, a Superior Court judge allowed the MBTA’s motion to dismiss. Among other things, the judge concluded that even if the MBTA had some form of contractual obligation to its monthly pass holders, “the complaint fails to allege an essential element of a breach of contract claim: an agreement between the parties on a material term of the contract at issue.” This appeal followed.[3] Background. We summarize the allegations in the operative complaint and the items appearing in the record of the case. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The MBTA is charged by statute with providing commuter rail and subway service in eastern Massachusetts. G. L. c. 161A, §§ 1 and 2. The MBTA provides service […]
Categories: News Tags: 1109917, Authority, Lawyers, massachusetts, Rodriguez, Transportation, Weekly
A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-052-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION 1684CV05562 A.L. PRIME ENERGY CONSULTANT, INC. vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY RESERVIATION AND REPORT OF AN INTERLOCUTORY ORDER TO THE APPEALS COURT This action arises out of a contract between the plaintiff, A.L. Prime Energy Consultant, Inc. (Prime), and the defendant, Massachusetts Bay Transportation Authority (MBTA) for the supply of Ultra Low Sulfur Diesel Fuel (ULSDF) (the Supply Contract), and the unilateral termination of the Supply Contract by the MBTA. Prime asserts, among other claims, that the MBTA breached the Supply Contract by terminating it before its end date. Factual Background Prime was awarded the Supply Contract on July 1, 2015, after a public bidding process. It was to continue for a period of two years. The Supply Contract contained a so-called “termination for convenience” provision that states: Termination for Convenience. The Authority [MBTA] may, in its sole discretion, terminate all or any portion of this Agreement or the work required hereunder, at any time for its convenience and/or for any reason by giving written notice to the Contractor [Prime] thirty (30) calendar days prior to the effective date of termination or such other period as is mutually agreed upon in advance by the parties. If the Contractor is not in default or in breach of any material term or condition of this Agreement, the Contractor shall be paid its reasonable, proper and verifiable costs in accordance with generally accepted government contracting principals as set forth in the Federal Acquisition Regulations, including demobilization and contract closeout costs, and profit on work performed and Accepted up to the time of termination to the extent previous payments made by the Authority to the Contractor have not already done so. Such payment shall be the Contractor’s sole and exclusive remedy for any Termination for Convenience, and upon such payment by the Authority to the Contractor, the Authority shall have no further obligation to the Contractor. The Authority shall not be responsible for the Contractor’s anticipatory profits or overhead costs attributable to unperformed work. On July 12, 2016, the MBTA terminated the Supply Contract pursuant to the termination for convenience clause quoted above. In its complaint, Prime alleges that the sole reason for the MBTA’s exercise of the termination for convenience clause was that it had learned that it could obtain ULSDF at a cheaper price from another vendor. It contends that an agency’s right to invoke termination for convenience clauses is limited by principles of bad faith and abuse of discretion and, under these principles, a government agency is not permitted to cancel a contract solely to enable it to purchase the same […]
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A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-052-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION 1684CV05562 A.L. PRIME ENERGY CONSULTANT, INC. vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY RESERVIATION AND REPORT OF AN INTERLOCUTORY ORDER TO THE APPEALS COURT This action arises out of a contract between the plaintiff, A.L. Prime Energy Consultant, Inc. (Prime), and the defendant, Massachusetts Bay Transportation Authority (MBTA) for the supply of Ultra Low Sulfur Diesel Fuel (ULSDF) (the Supply Contract), and the unilateral termination of the Supply Contract by the MBTA. Prime asserts, among other claims, that the MBTA breached the Supply Contract by terminating it before its end date. Factual Background Prime was awarded the Supply Contract on July 1, 2015, after a public bidding process. It was to continue for a period of two years. The Supply Contract contained a so-called “termination for convenience” provision that states: Termination for Convenience. The Authority [MBTA] may, in its sole discretion, terminate all or any portion of this Agreement or the work required hereunder, at any time for its convenience and/or for any reason by giving written notice to the Contractor [Prime] thirty (30) calendar days prior to the effective date of termination or such other period as is mutually agreed upon in advance by the parties. If the Contractor is not in default or in breach of any material term or condition of this Agreement, the Contractor shall be paid its reasonable, proper and verifiable costs in accordance with generally accepted government contracting principals as set forth in the Federal Acquisition Regulations, including demobilization and contract closeout costs, and profit on work performed and Accepted up to the time of termination to the extent previous payments made by the Authority to the Contractor have not already done so. Such payment shall be the Contractor’s sole and exclusive remedy for any Termination for Convenience, and upon such payment by the Authority to the Contractor, the Authority shall have no further obligation to the Contractor. The Authority shall not be responsible for the Contractor’s anticipatory profits or overhead costs attributable to unperformed work. On July 12, 2016, the MBTA terminated the Supply Contract pursuant to the termination for convenience clause quoted above. In its complaint, Prime alleges that the sole reason for the MBTA’s exercise of the termination for convenience clause was that it had learned that it could obtain ULSDF at a cheaper price from another vendor. It contends that an agency’s right to invoke termination for convenience clauses is limited by principles of bad faith and abuse of discretion and, under these principles, a government agency is not permitted to cancel a contract solely to enable it to purchase the same […]
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Aiguier v. Financial Industry Regulatory Authority, Inc., et al. (Lawyers Weekly No. 12-029-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-02491 BLS I DUSTIN AIGUIER v. FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., CUSTOMER 1-W, CUSTOMER 1-H, CUSTOMER 2, CUSTOMER 3, CUSTOMER 4-W, and CUSTOMER 4-H and THE SECURITIES DIVISION OF THE OFFICE OF THE SECRETARY OF STATE, intervener MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTS’ MOTIONS TO DISMISS INTRODUCTION This case, once again, raises the issue of whether, or pursuant to what standard, the Superior Court may adjudicate a claim made by a registered representative of a securities broker-dealer that he is entitled to have records of customer complaints expunged from the data bases maintained by defendant Financial Industry Regulatory Authority, Inc. (FINRA). Plaintiff Dustin Aiguier was formerly a registered representative of New York Life Securities LLC (NYLife). While with NYLife, four complaints were lodged against him by six of his customers (including two sets of spouses) (collectively, the Customers). The plaintiff has filed a complaint which he styles: “Amended Petition for an Order of Expungement of Customer Dispute Information from the Central Registration (CRD System)” (the Complaint). In addition to FINRA, the Complaint also names the Customers as defendants (although the plaintiff seeks no relief with respect to them). The Securities Division of the Office of the Secretary of the 2 Commonwealth has intervened in this action as a defendant on the ground that it is a primary regulator of the securities industry in Massachusetts and is responsible for protecting the public’s interest in access to information concerning customer complaints. The case is now before the court on all of the defendants’ motions to dismiss the Complaint. They move for dismissal asserting that: (a) the Superior Court lacks subject matter jurisdiction (Mass.R.Civ.P. 12(b)(1)) and (b) the Complaint fails to state a claim on which relief may be granted (Mass.R.Civ.P. 12(b)(6)). For the reasons that follow, their motions are allowed. FACTUAL BACKGROUND The court will begin by summarizing the relevant factual allegations in the Complaint, assumed to be true for purposes of this motion, as well as relevant information contained in attachments to the Complaint, to the extent necessary to address the issues raised by the defendants’ motions. It will then describe the regulatory framework relevant to this dispute. The Plaintiff’s relationship to NYLife and the Customer Complaints The plaintiff was a registered representative of NYLife until June 3, 2015, when he was discharged. Four written complaints against him were submitted to NYLife by his customers, each involved the sale of annuities. NYLife settled each of the claims without an arbitration proceeding being commenced. As required by FINRA rules, it reported the claims and settlements to FINRA, and a description of each claim and the settlement, as well as […]
A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-027-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.SUPERIOR COURT CIVIL ACTION 1677CV01366 A.L. PRIME ENERGY CONSULTANT, INC. vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS In July 2016, defendant Massachusetts Bay Transportation Authority (MBTA) terminated its two-year fuel supply agreement with plaintiff A.L. Prime Energy Consultant, Inc. (Prime). The MBTA explained that thetermination was made pursuant to its exercise of a contractual right that permitted termination for convenience.The MBTA terminated the contract in order to take advantage of cost savings it believed it could achieve by purchasing fuel through the Commonwealth’s existing statewide fuel contract. Prime alleges that the MBTA abused its discretion when it invoked the termination for convenience provision and that therefore the MBTA is liable for breach of contract and breach of the covenant of good faith and fair dealing. The matter is now before the Court on the MBTA’s motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6). For the reasons that follow, the motion is DENIED. BACKGROUND The following facts are drawnfrom the allegationsin Prime’s complaint, which are accepted as true for the purposes of this motion, the exhibits attached to the complaint, and matters of public record appropriate for judicial notice. SeeSchaer v. Brandeis Univ., 432 Mass. 2 474, 477 (2000); Waterson v. Page, 987 F.2d 1, 3-4 (1stCir. 1993).1 1 At the hearing on the motion, the Court asked the parties to agree on a stipulated statement of facts regarding whether and to what extent the Commonwealth’s statewide fuel contract was in effect during the relevant periodand available to the MBTA. The parties were not able to do so. Nevertheless, in lieu of the joint statement, the MBTA submitted a Supplemental Statement of Facts in Support of its Motion to Dismiss. The Court accepts some of the facts set outin the statement in this background sectionbecause they are found either in the complaint, its exhibits, public records, or Massachusetts acts and regulations. 2 The ULSD delivery locations for the MBTA arewithin zone 1. 3 The MBTA initially awarded the contract to Sprague Oil but Prime successfully appealed the award. Because of the delay resulting from the appeal, Prime’s first delivery was made on September 1, 2015. The MBTA agreed that the two-year contract period originally scheduled to begin on July 1, 2015 would begin on September 1, 2015. On January 15, 2015, the MBTA’s Materials Management Department issued an Invitation for Bids (IFB) for the supply of Ultra Low SulfurDiesel Fuel (ULSD). The IFB provided that the contract would have a two-year term. A few months later, the Operation Services Division of the Commonwealth’s Executive Office of Administration and Finance (OSD), which is responsible for establishing […]
Categories: News Tags: 1202717, A.L., Authority, Consultant, Energy, Inc., Lawyers, massachusetts, Prime, Transportation, Weekly