THOMAS & BETTS CORPORATION, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,
NEW ALBERTSON'S, INC., Defendant/Third-Party Plaintiff, Appellee/Cross-Appellee, ALFA LAVAL INC.; BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL; BOSTON RENAISSANCE CHARTER SCHOOL, INC.; SIEMENS INDUSTRY, INC.; ALLIS-CHALMERS ENERGY, INC.; DAMPNEY COMPANY, INC., Third-Party Defendants, Appellees/Cross-Appellants/Cross-Appellees, JEANETTE YUKON, as General Partner of Yukon/Hyde Park Avenue Limited Partnership; JEWEL FOOD STORES, INC.; STAR MARKETS COMPANY; HYDE PARK MANAGER, INC., as Administrative Trustee for W/S Cardinal Hyde Park-MA Trust; DAMPNEY COMPANY, INC., Third-Party Defendants, Appellees/Cross-Appellees. THOMAS & BETTS CORPORATION, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,
NEW ALBERTSON'S, INC., Defendant/Third-Party Plaintiff, Appellee/Cross-Appellant, ALFA LAVAL INC.; BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL; BOSTON RENAISSANCE CHARTER SCHOOL, INC.; SIEMENS INDUSTRY INC.; ALLIS-CHALMERS ENERGY, INC.; DAMPNEY COMPANY, INC., Third-Party Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S.
Merten, with whom Paul M. Kessimian, Robert K. Taylor, and
Partridge, Snow, & Hahn LLP were on brief for appellant/
Dylan Sanders, with whom Lisa C. Goodheart and Sugarman,
Rogers, Barshak, and Cohen, P.C. were on brief for New
Albertson's, Inc.; Jewel Food Stores, Inc.; Star Markets
Company, Inc.; and Hyde Park Manager, Inc.
Jonathon C. Burwood, with whom Hinshaw and Culbertson LLP
were on brief for Alfa Laval, Inc.
T. Harding, with whom Lewis, Brisbois, Bisgaard, & Smith
LLP were on brief for appellee/cross-appellant Boston
Renaissance Charter School, Inc. and Boston Renaissance
Charter Public School.
L. Klein, with whom Marc J. Goldstein, Brook Detterman, and
Beveridge & Diamond, P.C. were on brief for Siemens
Industry, Inc. and Allis-Chalmers Energy, Inc.
Neil Hartzell, with whom LeClair Ryan, A Professional
Corporation were on brief for Jeanette Yukon.
Carolyn M. Miller, with whom Matthew C. Welnicki and Melick
& Porter, P.C. were on brief for Dampney Company, Inc.
Howard, Chief Judge, Selya and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
2007, at the direction of the Massachusetts Department of the
Environment ("MassDEP"), an extensive cleanup of
Mother Brook, a canal in Boston, Massachusetts, began
following its contamination by polychlorinated biphenyls
("PCBs"). The cleanup ultimately resulted in a 2010
lawsuit in which two parties -- Thomas & Betts and New
Albertson's -- brought Massachusetts law claims in the
United States District Court for the District of
Massachusetts against each other and various third parties.
The claims, which were primarily brought under § 4 of
Chapter 21E, see Mass. Gen. Laws ch. 21E, § 4,
sought reimbursement for the money that Thomas & Betts
and New Albertson's each had spent on the cleanup.
lengthy trial, a jury rendered a special verdict. The jury
found, among other things, that Thomas & Betts was
"liable to" New Albertson's under § 4 of
Chapter 21E for a portion of what are known as the response
costs that New Albertson's had incurred in connection
with the cleanup of the canal. The jury also found that other
parties (but not New Albertson's) were "liable
to" Thomas & Betts under § 4 of Chapter 21E for
various portions of the response costs that it had incurred
in the cleanup. The jury then allocated the percentage of the
response costs that each of the various parties were
responsible for reimbursing to, respectively, New
Albertson's and Thomas & Betts.
District Court entered judgment based on the jury's
special verdict and awarded prejudgment interest, under
§ 6B or § 6H of Chapter 231, without specifying
which applied, to New Albertson's and Thomas & Betts
on the funds that had been awarded to each of them on their
§ 4 claims. The District Court then entered a separate
judgment in which it awarded New Albertson's
attorney's fees under § 15 of Chapter 21E. The
consolidated appeals that are now before us concern both
judgments. We affirm each of them.
understand the many issues that we need to address, we first
provide some background on Chapter 21E and the cleanup of
Mother Brook. We then review the travel of the litigation.
21E is the Massachusetts version of the Comprehensive
Environmental Response, Compensation, and Liability Act
("CERCLA"), 42 U.S.C. §§ 9601-28. See
John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401, 404
n.3 (1st Cir. 1993). The Massachusetts Supreme Judicial Court
("SJC") has explained that Chapter 21E, like its
federal analogue, seeks "to compel the prompt and
efficient cleanup of hazardous material and to ensure that
costs and damages are borne by the appropriate responsible
parties." Bank v. Thermo Elemental Inc., 888
N.E.2d 897, 911 (Mass. 2008) (quoting Taygeta Corp. v.
Varian Assocs., 763 N.E.2d 1053, 1059 (Mass. 2002)). To
that end, whenever the MassDEP "has reason to
believe" that "hazardous material has been
released" or that there is a "threat" of such
a release, it "is authorized to take or arrange for such
response actions as it reasonably deems necessary."
Mass. Gen. Laws ch. 21E, § 4.
4 further provides that, when the MassDEP has reason to
believe that there has been such a release or the threat of
one, it must notify the "owner or operator of the site .
. . of its intent to take such action," except under
certain circumstances not relevant here. Id.
Section 4 then provides that "[a]ny person who
undertakes a necessary and appropriate response action
regarding the release or threat of release of . . . hazardous
materials shall be entitled to reimbursement from any other
person liable for such release or threat of release for the
reasonable costs of such response action." Id.
And, § 4 provides as well, "[i]f two or more
persons are liable pursuant to section five [of Chapter 21E]
for such release or threat of release, each shall be liable
to the others for their equitable share of the costs of such
response action." Id.
5(a) in turn spells out the "person[s]" who are
"liable" for such release or threat of release and
to whom they are "liable." The "person[s]"
who are "liable" pursuant to § 5 for a release
or threat of such release include, in relevant part:
"the owner or operator of . . . a site from or at which
there is or has been a release or threat of release of oil or
hazardous material," id. § 5(a)(1);
"any person who at the time of storage or disposal of
any hazardous material owned or operated any site at or upon
which such hazardous material was stored or disposed of and
from which there is or has been a release or threat of
release of hazardous material," id. §
5(a)(2); and "any person who otherwise caused or is
legally responsible for a release or threat of release of oil
or hazardous material from a . . . site," id.
§ 5(a)(5). A "person" described in § 5(a)
is, under § 5(a)(i), "liable . . . to the
[C]ommonwealth [of Massachusetts] for all costs of
assessment, containment and removal incurred . . . relative
to such release or threat of release;" and, under §
5(a)(iv), "liable . . . to any person for any liability
that another person is relieved of pursuant to [Mass. Gen.
Laws ch. 21E, § 4.]"
portions of the statute are relatively straightforward. There
is, however, one additional point about the statute that is
critical to bear in mind in considering the analysis that
follows, though it is quite technical. The point is this.
5(b) recognizes that a "person who is liable solely
pursuant to [§ 5(a)(1)]" -- a so-called
"current owner" -- is "liable to" other
current owners and is "liable to" the Commonwealth.
Id. § 5(b). But, § 5(b) provides that such
a current owner in some circumstances may not be "liable
to" any other "person[s]" who are
described in § 5(a). Specifically, § 5(b) provides
that a current owner is not "liable to" any
"person who is liable pursuant to" §§
5(a)(2)-(5), if the current owner can show that (1) it
"did not own or operate the site at the time of the
release or threat of release in question" and (2) it
"did not cause or contribute to such release or threat
of release." Id.
upshot of this limitation in § 5(b) -- by virtue of how
§§ 5(a)(1) and 5(b) interact both with each other
and with § 4 -- is the following. A "person"
may be "liable" within the meaning of § 5 --
for example, by virtue of being "liable to the
[C]ommonwealth" under § 5(a)(1), in consequence of
owning a site from which there "has been a release"
-- and yet not be "liable to" a "person"
who seeks reimbursement under § 4 for the costs that it
incurred in connection with a response action that it
undertook in consequence of that release. Id. And,
as we will see, this limitation on liability in § 4,
arising from § 5(b), bears directly on a number of the
issues that we must address in these appeals.
is one final statutory provision that warrants much briefer
mention. Section 4A of Chapter 21E creates a cause of action
premised on the liability that § 4 imposes. It provides
that parties may seek reimbursement from other parties, based
on their liability under § 4, for the costs that they
have incurred in undertaking response actions. Specifically,
§ 4A provides that "any person who has given notice
pursuant to this section may commence a civil action in the
superior court department of the trial court seeking from the
notice recipient contribution, reimbursement or an equitable
share of the costs of such response action or of such actual
or potential liability." Id. §
are also certain Massachusetts regulations that are useful to
understand. That is because the MassDEP implements Chapter
21E through the Massachusetts Contingency Plan (the
"Plan"), 310 Mass. Code Regs. 40. See
Mass. Gen. Laws ch. 21E, § 3(b).
Plan defines a "response action" as the
"assessment, containment, and/or removal" of
hazardous materials. 310 Mass. Code Regs. 40.0006(2)(a). The
Plan further provides that, in carrying out the authority to
arrange for response actions, the MassDEP may issue a
"Notice of Responsibility" to a "potentially
responsible party" or a "responsible party."
Id. at 40.0160(1); see also Mass. Gen. Laws
ch. 21E, § 9 (describing MassDEP's authority to
order a responsible party to undertake a response action).
The Plan defines a "potentially responsible party"
as "a person who is potentially liable pursuant to
[Chapter 21E]." 310 Mass. Code Regs. 40.0006(12). The
Plan defines a "responsible party," by contrast, as
"a person who is liable under [Chapter 21E]."
MassDEP has the "sole discretion" to determine
"whom to notify of their potential liability under
[Chapter 21E]." 310 Mass. Code Regs. 40.0160(1)(a). Once
notified by the MassDEP, "potentially responsible
parties" may undertake a response action, while
"responsible parties" must do so. Id. at
against this dense statutory and regulatory background that
the dispute between the parties to these appeals comes to us.
The dispute itself has its origins in events that took place
nearly two decades ago.
& Betts is one of the two principal parties to these
appeals. In 1999, it acquired a company that owned a property
upstream from Mother Brook. Thomas & Betts, along with
the other parties to these appeals, has stipulated that the
company that it had acquired had used and stored PCBs on its
property while it conducted industrial operations there.
Albertson's is the other principal party to these
appeals. It has stipulated, along with the other parties,
that it "stands in the shoes" of a number of
parties that had leased a property downstream from Thomas
& Betts's property, that this downstream property had
long been home to a supermarket, and that New Albertson's
had indemnified the owner of the supermarket property against
certain environmental costs and responsibilities.
2000, sediment samples from the upstream property that Thomas
& Betts owned tested positive for PCBs. The next year,
Thomas & Betts developed and began carrying out a
remediation plan for that property as well as for Mother
Brook in its entirety.
October 17, 2007, the MassDEP sent an email to Thomas &
Betts, as the owner of the upstream property, and to the
owner at that time of the downstream supermarket property.
The email reported that the MassDEP had found PCB
contamination along both banks of Mother Brook in the area
adjacent to the supermarket property and potentially
extending downstream to the canal's terminus at the
Neponset River. The email also indicated that, pursuant to
§ 4 of Chapter 21E, the MassDEP would be issuing a
Notice of Responsibility both to Thomas & Betts and to
the owner of the supermarket property in connection with the
contamination of Mother Brook.
next month, the MassDEP issued the Notice of Responsibility.
The Notice of Responsibility stated that the MassDEP had
reason to believe that Thomas & Betts and the owner of
the supermarket property were "Potentially Responsible
Parties." The Notice of Responsibility also stated that
"responsible parties" must take necessary response
actions or risk "liab[ility] for up to three (3) times
all response costs incurred by [the] MassDEP."
See Mass. Gen. Laws ch. 21E, §§ 5(e), 9;
310 Mass. Code Regs. 40.1220(5). Finally, the Notice of
Responsibility stated that "[t]he subject site shall not
be deemed to have all the necessary and required response
actions taken unless and until all substantial hazards
presented by the site have been eliminated and a level of No
Significant Risk exists."
response to the email from the MassDEP, but before the
MassDEP had sent the Notice of Responsibility, Thomas &
Betts and New Albertson's entered into a joint
remediation agreement. Specifically, the two parties agreed
"to cooperate with each other in good faith and with due
haste to implement the [MassDEP's] expectations set forth
in . . . the October 17 Email." Pursuant to that same
agreement, Thomas & Betts and New Albertson's also
agreed to an "interim" allocation of the costs that
they would jointly incur in cleaning up Mother Brook. Thomas
& Betts and New Albertson's did so on the
understanding that this interim allocation was "not
intended to reflect the parties' ultimate cost
time that Thomas & Betts entered into the joint
remediation agreement with New Albertson's, Thomas &
Betts already had the necessary permits and authorizations to
remediate Mother Brook. Thus, Thomas & Betts and New
Albertson's agreed to undertake their joint remediation
effort pursuant to those permits and authorizations.
clean up Mother Brook, the canal had to be drained and the
contaminated sediment completely removed. The portion of
Mother Brook adjacent to the supermarket property was bounded
by two parallel bridges that spanned the canal. To drain and
excavate this portion of the canal, access to either the
north bank, where the supermarket property was located, or
the south bank, was needed.
cleanup of Mother Brook was completed by December of 2009. In
the end, Thomas & Betts incurred $12, 703, 322.52 in
response costs. Pursuant to the joint remediation agreement,
New Albertson's paid Thomas & Betts $2, 924, 306.88.
New Albertson's itself incurred an additional $791,
398.31 in response costs in connection with the cleanup.
November of 2010, Thomas & Betts filed a complaint,
invoking federal diversity jurisdiction, against New
Albertson's in the United States District Court for the
District of Massachusetts. See 28 U.S.C. §
1332(a). Thomas & Betts alleged that New Albertson's
had ceased paying it pursuant to the agreement to allocate
the costs of the cleanup set forth in the joint remediation
agreement. On that basis, Thomas & Betts asserted claims
against New Albertson's under Massachusetts law for
breach of contract, breach of the covenant of good faith, and
unfair and deceptive business practices.
January of 2011, New Albertson's filed counterclaims
against Thomas & Betts under Massachusetts law for breach
of contract, breach of the covenant of good faith, and unfair
and deceptive business practices. New Albertson's also
asserted a counterclaim against Thomas & Betts for
reimbursement based on § 4 of Chapter 21E for all the
response costs that it had incurred in connection with the
cleanup of Mother Brook and for costs, including
attorney's fees, under § 15 of Chapter 21E.
that year, Thomas & Betts responded by filing its own
counterclaims based on § 4 of Chapter 21E against New
Albertson's for reimbursement for the response costs that
it had incurred in connection with the cleanup and for costs,
including attorney's fees, under § 15 of Chapter
21E. Thomas & Betts also added a new breach of contract
counterclaim under Massachusetts law against New
Albertson's. This counterclaim alleged that New
Albertson's had breached the joint remediation
agreement's duty "to cooperate in good faith"
by, among other things, "[r]efusing to allow timely
access to New Albertson's' property, which access was
necessary to complete the bank remediation work."
Thomas & Betts and New Albertson's each also filed
complaints pursuant to § 4A of Chapter 21E against other
parties. Those third-party complaints sought reimbursement
from the third parties for the response costs that Thomas
& Betts and New Albertson's, respectively, each had
incurred in remediating the contamination of Mother Brook.
these third-party defendants is Alfa Laval Inc., which is
also a party on appeal. Alfa Laval manufactured centrifuges
on the south bank of Mother Brook, across from where the
supermarket property is located, from the 1960s until the
late 1970s. Alfa Laval purchased the site and assets of the
centrifuge business from another manufacturer that, the
parties to these appeals have stipulated, used and stored
PCBs at this south bank property.
set of third-party defendants who are parties on appeal
includes the Boston Renaissance Foundation, Inc.
("Foundation"), which purchased the south bank
property in 2008, and the Boston Renaissance Charter Public
School, which leased that same property from the Foundation.
We will refer to these parties collectively as "the
Charter School Parties." The Charter School Parties were
joined as defendants in this litigation by Thomas & Betts
in late 2011. Thomas & Betts claimed that the Charter
School Parties were "liable to" it, under § 4
of Chapter 21E, for the reimbursement of a portion of the
response costs that it had incurred.
we need to mention one other pair of parties to these
appeals. These parties are Dampney Company, Inc.
("Dampney") and Jeanette Yukon, as general partner
of Yukon/Hyde Park Avenue Limited Partnership
("Yukon"). Dampney was a paint manufacturer that
owned a site just north of Thomas & Betts's property
between 1930 and 1970.
& Betts filed a third-party complaint against Dampney
under § 4A of Chapter 21E in December of 2011. The
Yukon/Hyde Park Avenue Limited Partnership at one point owned
the south bank property where the Boston Renaissance Charter
Public School is now located. Yukon became a party to the
suit due to the third-party complaint that Alfa Laval filed
pursuant to § 4A of Chapter 21E in 2012. Neither Dampney
nor Yukon claim that the District Court erred, and we need
only mention them briefly at points in considering the
challenges that Thomas & Betts brings on appeal.
trial on these various claims took place in late 2015 and
lasted twenty-one days. Only the claims based on § 4 of
Chapter 21E for reimbursement by Thomas & Betts and New
Albertson's -- against each other and the other parties
that we have mentioned -- went to the jury.
December 22, 2015, the jury returned a special verdict. The
first part of the special verdict addressed "Question
One" on the special verdict form, which concerned the
claims that Thomas & Betts had brought based on § 4
of Chapter 21E. Specifically, the jury found that Thomas
& Betts had incurred $12, 703, 322.52 in reasonable and
necessary response costs. The jury also found that Alfa Laval
and the Charter School Parties were "liable to"
Thomas & Betts for a portion of the response costs that
had been incurred by Thomas & Betts. The jury then
allocated responsibility for 14 percent of those response
costs to Alfa Laval and 1 percent of them to the Charter
School Parties. The jury found that no other party to the
litigation, including New Albertson's, was "liable
to" Thomas & Betts for any portion of Thomas &
Betts's response costs. The jury assigned Thomas &
Betts the other 85 percent of the response costs.
second part of the special verdict addressed "Question
Two," which concerned the claims that New
Albertson's had brought based on § 4 of Chapter 21E.
The jury found that New Albertson's had incurred $791,
398.31 in reasonable and necessary response costs. The jury
also found that Thomas & Betts was "liable to"
New Albertson's for 75 percent of those response costs
and that no other party to the litigation was "liable
to" New Albertson's for them. The jury assigned New
Albertson's the other 25 percent of the response costs.
In addition, the jury found that New Albertson's did not
"cause or contribute to the release of PCBs to the
banks or streambed of Middle or Lower Mother Brook[.]"
District Court entered judgment based on the jury's
special verdict on December 31, 2015. The various parties
then filed a number of post-trial motions, including motions
to alter the judgment. The District Court denied most of
these motions on March 29, 2016, although the District Court
did grant motions by Thomas & Betts and New
Albertson's to alter the judgment and to include
prejudgment interest on the funds that each had been awarded
pursuant to their respective claims under § 4 of Chapter
21E. The District Court did so pursuant to either § 6B
or § 6H of Chapter 231, without specifying which
provision applied. On May 2, 2016, the District Court issued
a written decision explaining both its prejudgment interest
rulings and its ruling rejecting Thomas & Betts's
post-trial motion for a new trial. A number of parties
appealed from the District Court's amended
District Court then issued two written decisions -- the first
on September 29, 2016 and the second on March 10, 2017 -- on
still-pending motions concerning costs, including
attorney's and expert's fees. The District Court
finally entered judgment on the motions for attorney's
fees on April 4, 2017. In the portion of the judgment on
those costs that is at issue on appeal, the District Court
ordered Thomas & Betts to pay $1, 747, 188.59 in costs,
including attorney's and expert's fees, to New
Albertson's under § 15 of Chapter 21E.
& Betts then appealed this judgment in No. 17-1360, as
did New Albertson's in No. 17-1361. These appeals, along
with the others mentioned above, were all then consolidated.
begin with the appeal that Thomas & Betts brings from the
District Court's denial of its motion for a new trial
pursuant to Federal Rule of Civil Procedure 59. Thomas &
Betts contends that the District Court erred in denying its
Rule 59 motion based on what it contends were a number of
alleged legal errors at trial. These alleged legal errors
are: that the District Court reversibly erred by refusing to
instruct the jury on one of its breach of contract claims;
that the District Court reversibly erred by giving four
erroneous instructions concerning the potential liability,
under § 4 of Chapter 21E, of other parties to Thomas
& Betts for at least some of its response costs; and that
the jury rendered inconsistent verdicts on certain of Thomas
& Betts's claims under § 4 of Chapter 21E. We
address each asserted error in turn.
start with the contention by Thomas & Betts that the
District Court committed reversible error by failing to
instruct the jury on its breach of contract claim against New
Albertson's for failing to provide access to its property
despite its duty under the joint remediation agreement to
"cooperate in good faith." We review the District
Court's denial of a motion for a new trial for abuse of
discretion. Kennedy v. Town of Billerica, 617 F.3d
520, 527 (1st Cir. 2010). Where, however, a motion for a new
trial relies on "preserved claims of instructional
error, we afford de novo review to 'questions as to
whether the jury instructions capture the essence of the
applicable law.'" Ira Green, Inc. v. Military
Sales & Service Co., 775 F.3d 12, 18 (1st Cir. 2014)
(quoting DeCaro v. Hasbro, Inc., 580 F.3d 55, 61
(1st Cir. 2009)).
of course, the claimed instructional error consists of a
failure by the District Court to give an instruction on a
claim at all rather than of an instruction that was given but
that was allegedly wrong. "The district court must give
a jury instruction on a material issue if the evidence
presented at trial could plausibly support a finding for
either side." Id. "The standard for
determining whether a factual issue is sufficiently contested
to require an instruction is identical to the standard for
determining whether a factual controversy prevents the entry
of judgment as a matter of law." Wilson v. Mar.
Overseas Corp., 150 F.3d 1, 10 (1st Cir. 1998). Thus, to
show error here, Thomas & Betts must demonstrate that
there is more than "a mere scintilla of evidence"
in the record to support the claim on which the jury was not
instructed. Fashion House, Inc. v. K Mart Corp., 892
F.2d 1076, 1088 (1st Cir. 1989). Our review of this matter of
law is de novo. See Wilson, 150 F.3d at 10.
& Betts contends -- as it did below in moving for a new
trial -- that the record shows that a jury supportably could
have found that, in 2007, and then, again, from 2008 into
2009, New Albertson's breached the duty at issue. Thomas
& Betts further contends that there was enough evidence
in the record to permit the jury to have found that the
alleged breach -- no matter when it occurred -- resulted in
damages. Accordingly, Thomas & Betts contends that the
District Court was obliged to instruct the jury on this claim
of contractual breach.
ruling otherwise in denying Thomas & Betts's motion
for new trial, the District Court concluded, among other
things, that the record did not contain sufficient evidence
for a jury reasonably to find damages resulting from the
alleged breach. But, as "[w]e are at liberty to
affirm a district court's judgment on any ground made
manifest by the record," United States v.
George, 886 F.3d 31, 39 (1st Cir. 2018), we may affirm
the District Court based on our resolution of the antecedent
question of whether the evidence sufficed to support a
finding that New Albertson's had committed the alleged
breach at all. And, because we conclude that the evidence did
not suffice in that regard, we reject the challenge that
Thomas & Betts brings concerning the District Court's
failure to give this instruction.
the case that the District Court erred by not instructing the
jury on the breach of contract claim, Thomas & Betts
first argues that a jury supportably could have found that
New Albertson's breached the contractual duty at issue by
rejecting a proposal to conduct simultaneous remediation in
2007. Thomas & Betts points to the testimony of John
Mitchell, the project manager for Shaw Environmental &
Infrastructure, Inc., which was the outside consultant
retained by Thomas & Betts for the remediation project.
testimony concerned a 2007 proposal -- never implemented --
that New Albertson's remediate both banks of Mother Brook
and its streambed simultaneously. Citing only to this
testimony, Thomas & Betts contends on appeal that
"the jury heard that [New Albertson's] insisted that
the North Bank (its side) be done first." Thomas &
Betts then contends, on that basis, that a jury supportably
could find that New Albertson's unreasonably stood in the
way of this proposal being put into operation. Accordingly,
Thomas & Betts contends, for this reason alone the record
adequately supports a finding that New Albertson's
breached its duty under the remediation agreement to
cooperate in good faith.
problem with this contention, however, is that Mitchell
testified that he did not know who had decided to reject the
simultaneous remediation proposal or how the decision not to
pursue it had been made. Moreover, Thomas & Betts points
to no other evidence to support its contention that New
Albertson's unreasonably stood in the way of the 2007
proposal. We thus see no basis for concluding that a jury
could find that New Albertson's unreasonably rejected the
2007 proposal. Accordingly, we do not see any basis for
concluding that a jury supportably could have found a breach
of the duty at issue -- the duty under the joint remediation
agreement "to cooperate in good faith" -- based on
the evidence concerning that proposal. After all, a jury
cannot be asked to rely on "mere speculation and
conjecture[, ]" see Mullins v. Pine Manor
Coll., 449 N.E.2d 331, 338 (Mass. 1983) (quoting
Int'l Fidelity Ins. Co. v. Wilson, 443 N.E.2d
1308, 1313 (Mass. 1983)), and, under Massachusetts law,
"[t]here is a presumption that all parties act in good
faith, and the plaintiff bears the burden of presenting
evidence of bad faith or an absence of good faith."
T.W. Nickerson, Inc. v. Fleet Nat. Bank, 924 N.E.2d
696, 706 (Mass. 2010).
& Betts alternatively contends that the District Court
erred in not instructing the jury on this breach of contract
claim because of evidence about actions that New
Albertson's took from 2008 to 2009. Thomas & Betts
contends that the evidence of these actions suffices to
support a jury finding that the duty at issue was breached.
Again, though, we do not agree.
& Betts points to the fact that the record supportably
shows that, during this time, New Albertson's failed to
offer Thomas & Betts access to Mother Brook through its
property via the north bank of the canal despite knowing that
Thomas & Betts had no other available means of accessing
the canal. But, as we have noted, under Massachusetts law, we
"presum[e] that all parties act in good faith" and
that "the plaintiff bears the burden of presenting
evidence of bad faith or an absence of good faith[.]"
Id. Thus, we do not see how evidence of New
Albertson's failure to offer access in and of itself
could suffice to support a finding that that New
Albertson's breached its contractual duty under the joint
remediation agreement "to cooperate in good faith."
Nor does Thomas & Betts identify any authority to support
a conclusion that such evidence could suffice.
& Betts does point to an email exchange from June of 2009
in which Thomas & Betts asked a representative of New
Albertson's for north bank access and the representative
from New Albertson's turned down the request. This
exchange does show that, after conferring on the matter with
other parties tied to the downstream supermarket property,
the New Albertson's representative responded. The record
shows that he stated that "we continue to see a number
of serious obstacles associated with the idea of using the
north bank for access" and that "our shared
position at this point is to press the [south bank property
owner] to comply with its existing access obligations."
evidence that New Albertson's rejected a request for
access and gave its reasons for doing so is not in and of
itself evidence that New Albertson's breached its duty
"to cooperate in good faith." And the effort by
Thomas & Betts to supply what is missing by pointing to
other evidence fails.
& Betts points in particular to Mitchell's testimony
that, once New Albertson's granted access to the north
bank three months later in 2009, workers did not encounter
any "obstacles." But, the fact that Mitchell did
not report any obstacles once New Albertson's did provide
access in September of 2009 reveals nothing about whether New
Albertson's had a reasonable basis for concluding that
there were serious obstacles to providing such access three
months earlier, in June. Moreover, Thomas & Betts points
to nothing in the record that indicates that it challenged
the representation that New Albertson's made regarding
the serious nature of those obstacles at the time that New
Albertson's made it. In fact, Thomas & Betts does not
even identify what it believes the record shows that those
"obstacles" were or on what basis a jury could find
-- despite the absence of any record evidence indicating what
those obstacles were -- that the representation made by New
Albertson's about the seriousness of them was not made in
good faith or was otherwise unreasonable.
the evidence of the exchange reflected in the email does not
suffice to support the finding of breach that Thomas &
Betts alleges. Accordingly, we reject this aspect, too, of
the challenge that Thomas & Betts brings to the District