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Thomas & Betts Corporation v. New Albertson's, Inc.

United States Court of Appeals, First Circuit

February 6, 2019

THOMAS & BETTS CORPORATION, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,
v.
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,
v.
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. District Judge]

          Howard Merten, with whom Paul M. Kessimian, Robert K. Taylor, and Partridge, Snow, & Hahn LLP were on brief for appellant/ cross-appellee.

          C. 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.

          John 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.

          Eric 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.

          A. 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.

          Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         In 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.

         After a 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.

         The 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.[1]

         I.

         To 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.

         A.

         Chapter 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.

         Section 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.[2] 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.

         Section 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."[3] 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.]"

         These 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.

         Section 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.

         The 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.

         There 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. § 4A.[4]

         There 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).

         The 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]." Id.

         The 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 40.0403(1).

         B.

         It is 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.

         Thomas & 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.

         New 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.

         In 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.

         On 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.

         The 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."[5]

         In 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 responsibility."

         At the 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.

         To 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.

         The 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.

         C.

         In 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.

         In 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.

         Later 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."

         Eventually, 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.

         One of 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.

         Another 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.

         Finally, 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.

         Thomas & 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.

         The 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.

         On 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.

         The 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[.]"

         The 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 judgment.[6]

         The 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.

         Thomas & 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.

         II.

         We 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.

         A.

         We 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)).

         Here, 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.

         Thomas & 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.

         In 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.[7] 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.

         1.

         To make 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.

         Mitchell's 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.

         The 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).

         2.

         Thomas & 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.

         Thomas & 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.

         Thomas & 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."

         But, 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.

         Thomas & 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.

         Thus, 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 ...


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