The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
This contract dispute arises out of a consulting relationship between the plaintiff, New Life Management & Development, Inc., and its former client, defendant Hillcrest Manor, Inc., which operates a retirement community in Manchester, New Hampshire. New Life claims that, after Hillcrest exercised its right to terminate the parties' agreement, it pursued certain improvements to the retirement community that New Life had recommended (known, in consultant vernacular, as the "Phase II and Phase III services"), obligating Hillcrest to pay New Life an additional fee of $150,000 under the parties' contract.
Hillcrest denies that it has pursued those improvements. Hillcrest further argues that, in any event, New Life is not entitled to the fee because, first, the contract was terminated by the parties' mutual agreement, rather than at Hillcrest's election and, second, New Life breached the contract by failing to provide other services due thereunder (known, again in "consultant-speak," as the "Phase I deliverables"). This court has jurisdiction over this state-law breach of contract action between New Life, a New Jersey corporation with its principal place of business there, and Hillcrest, a New Hampshire corporation with its principal place of business here, under 28 U.S.C. § 1332(a)(1) (diversity).
New Life has moved for summary judgment, see Fed. R. Civ. P. 56, arguing that there is (a) no genuine dispute that, in fact, Hillcrest has pursued the "Phase II or Phase III services," (b) no competent evidence to support Hillcrest's theory that the parties mutually terminated the agreement, and (c) no basis for Hillcrest to claim that New Life breached the agreement simply because Hillcrest exercised its right to terminate before New Life had provided the "Phase I deliverables."
This court agrees with New Life. In relevant parts, the agreement obligates Hillcrest to pay New Life "a monthly fee of $10,000 until all Phase I deliverables have been achieved or until such time as Hillcrest terminates the contract" and provides that, if Hillcrest does so, it will pay an additional $150,000 if it goes on to pursue the "Phase II or Phase III services." These provisions cannot be read to allow Hillcrest to terminate the contract before the Phase I deliverables have been achieved, then to invoke the fact that the Phase I deliverables had not been achieved as the basis for refusing to pay New Life for Hillcrest's pursuit of the Phase II or Phase III services. Hillcrest has also failed to come forward with any competent evidence supporting its contentions that the agreement was mutually terminated or that it has not in fact pursued the Phase II or Phase Services. Accordingly, as fully explained below, New Life's motion for summary judgment is granted.*fn1
I. Applicable legal standard
Summary judgment is appropriate where "the movant shows that 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). A dispute is "genuine" if it could reasonably be resolved in either party's favor at trial, and a fact is "material" if it could sway the outcome of the trial under applicable law. See, e.g., Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010). Where, as here, "the party moving for summary judgment bears the burden of proof on an issue, he cannot prevail unless the evidence that he provides on that issue is conclusive." EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2002) (internal quotation marks omitted).
In analyzing a summary judgment motion, the court must "view all facts and draw all reasonable inferences in the light most favorable to the non-moving party." Estrada, 594 F.3d at 62. The following facts are set forth accordingly.*fn2
Hillcrest owns and operates the Hillcrest Terrace Retirement Community in Manchester. In early 2007, it engaged New Life, which provides consulting services to retirement communities, to conduct a comprehensive assessment of Hillcrest and to make recommendations for improving its position in the marketplace and its financial performance. Under a "Terms and Cost Agreement" between the parties, Hillcrest paid New Life $80,000 (plus expenses) for this assessment.
The results of the assessment were set forth in a document entitled "Strategic Organizational Assessment & Review" and dated June 2007. In this document, New Life recommended that Hillcrest "commence a three phase repositioning, expansion and revitalization program of its campus." The document identified a number of initiatives comprising each of these phases. As explained in the study's preliminary feasibility analysis:
Phase I would encompass offering a Type A Lifecare entrance fee contract to residents moving into the existing independent living apartments . . . .
Phase II would encompass the construction of 24 additional, higher end living apartments on the campus.
The new construction would also include 4,000 square feet of common space.
Phase III would encompass the construction of 48 independent living villas built as six 8-plex buildings with ...