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Date: 12-24-2015

Case Style: Limoliner, Inc. v. Dattco, Inc

Case Number: 14-2188

Judge: William J. Kayatta, Jr. David J. Barron; Bruce M. Selya

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Bob Curtis, Jim Singer, Rudolph Friedmann

Defendant's Attorney: Chris Williams

Description: LimoLiner is a Massachusetts corporation that owns and
operates a fleet of luxury motor coaches that are known as
"Liners." Dattco is a Connecticut corporation that repairs and
services motor vehicles, including buses and coaches. The
undisputed facts are as follows.
On May 30, 2011, two LimoLiner employees met with two
Dattco representatives to discuss the possible need to repair one
of the Liners, Liner 3001. That vehicle had been out of service
for about a year and needed extensive repair work.
At the May 30th meeting, Dattco orally agreed to repair
Liner 3001 by, among other things, replacing or repairing a part
of the vehicle called the inverter. The parties agreed that Liner
3001 would be towed to Dattco's facility in Massachusetts for
inspection and that Dattco would provide a list of repairs
following inspection. During that meeting, LimoLiner's general
manager told Dattco's sales manager that LimoLiner wanted Liner
3001 to be repaired "as soon as possible."
Following that meeting, Dattco generated a list of
repairs, though that list did not include the inverter work that
the Magistrate Judge found that Dattco had actually agreed to
perform. The two parties used this list to divide the
responsibility for each repair between each party. Dattco was to
undertake the bulk of the repair work with the rest left for
LimoLiner's own mechanics.
After Dattco took hold of Liner 3001, LimoLiner became
concerned about the time Dattco was taking to repair the vehicle.
On August 4, 2011, at an in-person meeting, the representatives
from LimoLiner demanded compensation from Dattco for the monetary
losses LimoLiner claimed it had sustained up to that point as a
result of its inability to use Liner 3001. On August 8, 2011,
LimoLiner followed up by letter and "complained about the level of

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attention, time and resources assigned to the job" by Dattco and
specifically demanded $42,000 in compensation. LimoLiner, Inc. v.
Dattco, Inc., No. 1111877JCB, 2014 WL 4823877, at *4 (D. Mass.
Sept. 24, 2014). That letter also contained an offer to pay Dattco
a certain amount for its services if Dattco delivered Liner 3001
by 5:00 p.m. on Friday, August 12, 2011.
Dattco responded to that letter by email on August 25,
2011. In doing so, Dattco informed LimoLiner that Liner 3001 was
ready for pickup. Attached to the email was an invoice for
LimoLiner refused to pay, but offered to put the money
in escrow in exchange for the return of Liner 3001. Dattco did
not accept that offer.
On October 5, 2011, LimoLiner filed this action in
Massachusetts Superior Court. The suit alleged breach of contract,
misrepresentation, negligence, replevin, and violation of 940
C.M.R. 5.05, a regulation promulgated by the Massachusetts
Attorney General pursuant to Mass. Gen. Laws ch. 93A, 2 ("Chapter
93A"). LimoLiner also moved for an order directing Dattco to
return Liner 3001.
The court issued the requested order after first
requiring LimoLiner to submit a $10,404 deposit to the Clerk's
Office. Dattco complied with the court's order and returned Liner
3001 to LimoLiner on October 12, 2011.

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Dattco removed the case to federal district court on the
basis of diversity jurisdiction, answered, and counterclaimed for
breach of contract and quantum meruit. A Magistrate Judge,
presiding by consent over a bench trial, found that Dattco had
expressly agreed to repair Liner 3001's inverter and breached the
agreement by failing to make that repair.1 The Magistrate Judge
awarded LimoLiner $35,527.89 in damages for that breach. The
Magistrate Judge ruled for Dattco on all of LimoLiner's other
claims, including the remaining contract claims and the regulatory
claims. The Magistrate Judge also awarded Dattco $10,404 in
damages on its quantum meruit claim, thereby reducing LimoLiner's
total recoverable damages to $25,123.89.
LimoLiner appeals on three grounds. First, LimoLiner
contends that the Magistrate Judge erred when she held, as a matter
of law, that 940 C.M.R. 5.05 does not apply to this dispute
because the regulation does not apply to disputes between two
businesses. Second, LimoLiner contends that the Magistrate Judge
committed clear error when she found both that the parties did not
agree to an expedited term for performance and that Dattco did not
breach the parties' implicit agreement to complete the work within
1 Pursuant to 28 U.S.C. 636(c) and Fed. R. Civ. P. 73, the instant case was referred and reassigned in the district court, with the parties' consent, to a Magistrate Judge for all purposes, including trial, the entry of judgment, and all post-trial proceedings.

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a reasonable period of time. Third, LimoLiner contends that the
Magistrate Judge clearly erred in awarding damages that provide
compensation only for one portion of the time that LimoLiner was
without the use of Liner 3001.
We start with LimoLiner's regulatory claims. Chapter
93A generally prohibits "unfair or deceptive acts or practices in
the conduct of any trade or commerce." Mass. Gen. Laws ch. 93A,
2(a). The statute also empowers the Attorney General of
Massachusetts to issue regulations the violation of which
constitutes a per se violation of Chapter 93A. See id. 2(c);
940 C.M.R. 3.16(3).
LimoLiner's regulatory claims rely on one of those
regulations, 940 C.M.R. 5.05. It provides, among other things,
that "[i]t is an unfair or deceptive act or practice for a repair
shop, prior to commencing repairs on a customer's vehicle, to fail
to record in writing . . . [t]he specific repairs requested by the
customer . . . ." Id. 5.05(2)(e).
The Magistrate Judge found that Dattco failed to include
the inverter in the written list of repairs it prepared prior to
working on Liner 3001, even though LimoLiner had previously
requested that specific repair. LimoLiner thus contends that
Dattco plainly violated the regulation in this and other respects.
But the Magistrate Judge ruled that 5.05 does not apply to

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business-to-business transactions and instead regulates
transactions only between businesses and individual consumers.
For that reason, the Magistrate Judge rejected LimoLiner's claim
that Dattco violated the regulation.
Neither the Massachusetts Supreme Judicial Court ("SJC")
nor this Circuit has construed this regulation before. But the
SJC has held that a subsection of an arguably analogous Chapter
93A regulation is inapplicable to corporate consumers. See Knapp
Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 640 N.E.2d 1101, 1102
(1994) (holding that 940 C.M.R. 3.08(2) does not apply to
business-to-business transactions). And we have followed Knapp in
concluding that a different Chapter 93A regulation also does not
apply to business-to-business disputes. See Baker v. Goldman,
Sachs & Co., 771 F.3d 37, 56-57 (1st Cir. 2014) (holding, on the
basis of Knapp, that 940 C.M.R. 3.16 does not apply to business
to-business transactions).
In Knapp, the SJC addressed 940 C.M.R. 3.08(2), a
provision that makes it an unfair and deceptive act or practice
"to fail to perform or fulfill any promises or obligations arising
under a warranty." 940 C.M.R. 3.08(2). Knapp held that it was
"reasonably clear that, in drafting the regulation, the Attorney
General had in mind protection for consumers," meaning
individuals. Knapp, 640 N.E.2d at 1105.

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The SJC reached that conclusion by first noting that
3.08(2) was promulgated in 1971, the year before Chapter 93A was
amended to give corporate entities a right of action under the
statute. Id. at 1103, 1105. The SJC then examined 3.08 "as a
whole" and noted that the other two subsections of the regulation
explicitly referred to "consumers" and "concern[ed] matters
generally involved in consumer transactions," such as "the
obligation[] to provide the customer with a written and accurate
estimate of the anticipated cost of repairs[] and a prohibition on
charging for repairs which the customer has not authorized." Id.
at 1105. The SJC thus concluded that subsection (2) of the
regulation was "not intended to encompass a contract dispute
between businessmen" because "the bulk of the regulation applie[d]
only to consumers and their interests, and subsection (2)
contain[ed] no language suggesting that it was meant to apply to
a broader class of persons or interests." Id.
Dattco contends -- and the Magistrate Judge agreed --
that 5.05 is just like the subsection of the regulation construed
in Knapp. Although 5.05 does not use the term "consumer," it
does set out obligations very similar to those that the Knapp court
described as being "generally involved in consumer transactions."
See 940 C.M.R. 5.05 (referring to repairs and service made for
the benefit of the "customer" and with respect to the "customer's"
vehicle); 940 C.M.R. 5.05(2)(e) (obligating a repair shop to

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make a written record of all specific repairs requested by the
customer before commencing repair work); id. 5.05(3)
(prohibiting a repair shop from charging for repairs that have not
been authorized by the customer); see also Knapp, 640 N.E.2d at
1105 n.6 (noting in the context of 3.08 that "consumer" and
"customer" are used interchangeably). And the sample waiver form
included in the text of the regulation -- provided to give repair
shops the option to ask customers to authorize repairs in
advance -- is written in the first person, as if on behalf of an
individual rather than a business. See 940 C.M.R. 5.05(3)(d)
("I understand that I have the right to know before authorizing
any repairs what the repairs to my car will be and what their cost
will be. You need not obtain approval from me for repairs or
inform me prior to performing repairs what the repairs are or their
cost, if the total amount for repairs does not exceed [a specified
Nonetheless, unlike the regulation considered in Knapp,
5.05 is part of the Massachusetts Attorney General's "motor
vehicle" regulations. Thus, unlike the regulation considered in
Knapp, 5.05 is not part of the general "consumer protection"
regulations. And, as LimoLiner contends, the terms of 5.05 could
be read to more directly encompass acts taken in the business-to
business context than could the terms of the subsection of the
regulation considered in Knapp. See generally id. 5.05

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(proscribing unfair or deceptive acts or practices in relation to
the "customer"); id. 5.01 (defining "customer" as "any person
who has [or seeks to have] repairs, service or maintenance
performed . . . by a repair shop on a motor vehicle"); id. (defining
"person" as a "corporation," among other things).
Moreover, the timing of the promulgation of 5.05
differs from the timing of the promulgation of 3.08(2). Section
5 of the regulations -- and thus this regulation -- became
effective in 1976. That was four years after corporations were
granted a right of action under Chapter 93A. Thus, the timing
based reason the SJC gave in Knapp for construing the reach of
that regulation not to encompass business-to-business disputes is
not present here.
The SJC has not had occasion to provide additional
guidance since Knapp about whether regulations promulgated under
Chapter 93A apply to business-to-business disputes. We thus
conclude that this case presents "close and difficult legal issues"
for which there is no controlling Massachusetts precedent.
Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 51 (1st
Cir. 2013). Moreover, this case has the potential to impact
numerous business-to-business transactions concerning motor
vehicle repair and service, implicates competing policy interests,
and involves an area of traditional state authority. See id. at
52-53. And, finally, resolution of the regulation's scope "may be

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determinative of" LimoLiner's regulatory claims. See Mass. S.J.C.
R. 1:03. Accordingly, we certify the following question to the
SJC, as the SJC permits us to do in these circumstances, see id.:
Does 940 C.M.R. 5.05 apply to transactions in which the customer is a business entity?
The Clerk of this court is directed to forward to the
Massachusetts Supreme Judicial Court, under the official seal of
this court, a copy of the certified question and our opinion in
this case, along with copies of the briefs and appendices filed by
the parties. We retain jurisdiction over this appeal, and the
question of whether Dattco violated 5.05, pending resolution of
the certified question.
With respect to LimoLiner's contract claims, the company
contends that the Magistrate Judge clearly erred in finding that
the parties did not agree to an expedited term of performance.
LimoLiner also contends that, in any event, Dattco breached the
agreement by failing to perform within a reasonable time. We
consider each argument in turn.
The contract between the parties was an oral one. The
parties do not dispute that Massachusetts law governs this
contract. The parties also do not dispute that a representative
of LimoLiner told Dattco on May 30, 2011 -- prior to Liner 3001's

- 12 -
transfer to Dattco's facilities -- that LimoLiner wanted the
vehicle to be repaired "as soon as possible." The question,
therefore, is whether that statement made expedited performance a
term of the oral contract between the parties.
The parties agree that under Massachusetts law this
question is one of fact, see Rizzo v. Cunningham, 20 N.E.2d 471,
474 (Mass. 1939); RCI Northeast Servs. Div. v. Boston Edison Co.,
822 F.2d 199, 202 (1st Cir. 1987) ("[W]here the plain meaning of
a contract phrase does not spring unambiguously from the page or
from the context, its proper direction becomes one for the
factfinder, who must ferret out the intent of the parties.")
(applying Massachusetts law), and that we must review the
Magistrate Judge's finding only for clear error. See Fed. R. Civ.
P. 52(a)(6). We find none.
The Magistrate Judge did note that "[i]n other contexts,
phrases such as 'as soon as possible' and 'as soon as practicable'
have been construed to mean 'as soon as reasonably possible under
the circumstances of the case.'" LimoLiner, 2014 WL 4823877, at
*5. But the Magistrate Judge expressly found, in this instance,
that "there was no agreement that the repairs would be performed
on an expedited basis." Id. The Magistrate Judge reasoned as
The Magistrate Judge found that there was "no evidence
that LimoLiner ever told Dattco that it needed [Liner 3001] by a

- 13 -
specific date or the reason why it needed it back as soon as
possible." Id. at *5. Consistent with that finding, the record
shows that LimoLiner had not used Liner 3001 for its luxury
transportation business for over a year by the time it contracted
with Dattco for repairs. The record also provides a basis for the
Magistrate Judge's finding that Dattco understood "that Liner 3001
had been out of service for quite some time." Id. at *3. In fact,
the Dattco sales manager present at the May 30th meeting testified
that "[b]ecause [Liner 3001] had been down for so long . . . [he]
didn't believe there was any urgency, no one had told [him] about
any urgency."
As a result, the Magistrate Judge did not clearly err in
treating LimoLiner's single oral request for performance "as soon
as possible" to be a perfunctory suggestion rather than a
manifestation of a mutually agreed upon term of expedited
performance.2 See Murphy v. Nelson, 27 N.E.2d 678, 679 (Mass.
1940) (holding that an oral conversation regarding the terms of an
agreement "could be found not to have been intended by the parties
to be a part of their [ultimate] agreement," as it "was no more
than an expression of an opinion or suggestion concerning the
2 Although LimoLiner repeatedly renewed its request for expedited performance after work on Liner 3001 was well underway, LimoLiner does not contend -- nor could it reasonably contend -- that these subsequent requests were part of the parties' original contract or that they modified the parties' contract.

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transaction into which the parties contemplated entering"); cf.
Rezendes v. Barrows, No. CIV. A. B96-01625, 1998 WL 470505, at *12
(Mass. Super. Aug. 11, 1998) (holding that a written brokerage
agreement did not include an expedited term of performance because
the agreement contemplated a definite result and lacked an explicit
expiration date, even though the broker knew that the borrowers
were "seeking funds as soon as possible"). We therefore reject
LimoLiner's first challenge.
LimoLiner next argues that even if there was no agreement
to expedite the repair work, Dattco still failed to perform the
repairs within a reasonable period of time. LimoLiner first
contends that the Magistrate Judge erred by failing to make a
finding on this score at all. LimoLiner then contends that, to
the extent the Magistrate Judge did find that Dattco's performance
was timely, the Magistrate Judge committed clear error in so
Under Massachusetts law, if a contract is silent as to
the term for performance, then "the term shall be a reasonable
time based on all the relevant evidence." See Bushkin Assocs. v.
Raytheon Co., 815 F.2d 142, 146 (1st Cir. 1987); Thermo Electron
Corp. v. Schiavone Const. Co., 958 F.2d 1158, 1164 (1st Cir. 1992)
(in the absence of any specified time limit or provision stating
that time was "of the essence," the term was "a reasonable time").

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Contrary to LimoLiner's contention, the Magistrate Judge, applying
that default term for performance, did find that Dattco performed
within a reasonable time. See LimoLiner, 2014 WL 4823877, at *5
(finding that Dattco "did not breach the contract with regard to
the timing of the repairs," as Dattco performed as soon as
reasonably possible under the circumstances).
That being the case, LimoLiner agrees that a finding
about "reasonable" timely performance is one of fact and is thus
"subject to the clearly erroneous standard of Fed. R. Civ. P.
52(a)." See Hammond v. T.J. Litle & Co., Inc., 82 F.3d 1166, 1177
(1st Cir. 1996) (applying Massachusetts law). And, once again, we
find no clear error.
The reasonableness of Dattco's twelve-week period of
performance -- extending from May 31, 2011 to August 25, 2011 --
"depends on the nature of the contract, the probable intention of
the parties as indicated by it, and the attendant circumstances."
Charles River Park, Inc. v. Bos. Redevelopment Auth., 557 N.E.2d
20, 32 (Mass. App. Ct. 1990). The Magistrate Judge supportably
found that those considerations weighed in favor of finding that
Dattco had performed within a reasonable time.
In addition to finding that Liner 3001 had been out of
service for some time, the Magistrate Judge found that Liner 3001
was missing a number of critical parts and thus needed significant
repair work, the extent of which was originally unforeseen by the

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parties.3 The Magistrate Judge also found that LimoLiner did not
express an urgent need to have Liner 3001 repaired until after
another Liner -- Liner 3000 -- had been badly damaged in late June
2011. The record provides sufficient support for each of these
LimoLiner does contend that the Magistrate Judge failed
to take into consideration certain of Dattco's actions (or non
actions) when determining whether Dattco acted within a reasonable
time. For example, LimoLiner points to record evidence that Dattco
did not begin work on Liner 3001 until June 9, 2011, or nine days
after it acquired possession of the vehicle. LimoLiner also
contends that the record shows that, as of July 28, 2011, Dattco
had performed only 62.2 hours of work on Liner 3001, as Dattco
averaged a little over one hour per day in the first eight weeks
(even though Dattco had mechanics working twenty-four hours per
day). LimoLiner further contends, based on certain testimony
adduced at trial, that Dattco was generally not busy during the
twelve-week period.
3 A sales manager for Dattco testified that "[t]here were body parts missing off the engine [of Liner 3001]. In the electrical compartment we could see evidence of a fire and smell evidence of a fire." A work supervisor at Dattco further testified that "there w[ere] several obvious defects with the vehicle. Lights, body panels missing, it appeared it hadn't run in quite some time. Batteries were dead. There was one of two alternators I believe were seized up on the vehicle."

- 17 -
But the Magistrate Judge referenced the fact that Dattco
did not begin work on Liner 3001 until June 9, 2011 and that Dattco
spent only 62.2 hours working on Liner 3001 as of July 28, 2011.4
The Magistrate Judge just gave that evidence little weight in view
of "the nature of the contract, the probable intention of the
parties as indicated by it, and the attendant circumstances."
Charles River Park, Inc., 557 N.E.2d at 32. For example, in
considering the circumstances bearing on the timeliness of the
repairs, the Magistrate Judge reasonably gave weight to the
"evidence that once some repairs were performed, new problems were
found that had to be addressed." LimoLiner, 2014 WL 4823877, at
Perhaps this record could be read to permit a different
finding. But that possibility does not suffice to show that the
Magistrate Judge clearly erred in finding as she did. "Where there
are two permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous." Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 574 (1985); cf. Thermo Electron
Corp., 958 F.2d at 1165-66 (where there was strong evidentiary
support in the record to support the conflicting notions that a
4 The Magistrate Judge, as factfinder, was entitled to credit testimony that Dattco worked on Liner 3001 "as available man hours allowed" over testimony that Dattco was not particularly busy during the relevant time period and therefore could have devoted many more hours to repairing Liner 3001.

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party had and had not repudiated contract, the appellate court
deferred to the district court's finding that there was no
repudiation). We thus affirm the Magistrate Judge's finding that
Dattco did not breach its oral contract with LimoLiner with respect
to the timeliness of repair.
LimoLiner's final contention is that we must reverse the
Magistrate Judge's award of damages because it accounted for only
a portion of the time in which LimoLiner was without the use of
Liner 3001 and thus was too limited. Here, too, the issue is one
of fact, and our review is for clear error. See Fed. R. Civ. P.
52(a)(6); Twin Fires Inv., LLC v. Morgan Stanley Dean Witter &
Co., 837 N.E.2d 1121, 1135 (Mass. 2005) (noting that "the amount
of damages awarded is a factual issue"); Thermo Electron Corp.,
958 F.2d at 1166. And here, too, we affirm.
There were three periods of time during which LimoLiner
was without the use of Liner 3001. The first period ran from May
31, 2011 to August 25, 2011, when Dattco was performing repairs on
the vehicle. The second period ran from August 25, 2011 to October
12, 2011, when Dattco was holding Liner 3001 pending payment for
the services performed. The third period ran from October 12,
2011 to November 11, 2011, when LimoLiner had possession of Liner
3001 and during which period LimoLiner made arrangements to obtain
and replace the inverter.

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LimoLiner argued below that it was entitled to damages
for a four-month loss of use of Liner 3001 -- spanning from July
2011 (middle of the first period) to October 2011 (middle of the
third period) -- due to Dattco's alleged delay in performance and
Dattco's failure to perform all the requested repairs. The
Magistrate Judge disagreed. The Magistrate Judge declined to award
damages to LimoLiner for any portion of the first and second
periods of time. Indeed, the Magistrate Judge awarded damages to
LimoLiner for only a portion of the third period of time. See
LimoLiner, 2014 WL 4823877, at *10 n. 10 (noting that LimoLiner
bore responsibility for a one-week delay during the third period
of time and thus "attribut[ing] a three-week delay and
corresponding damages to Dattco's conduct" during that four-week
period (emphasis added)).
On appeal, LimoLiner accepts the Magistrate Judge's
award of damages to LimoLiner for only a portion of the third
period of time. But LimoLiner challenges the Magistrate Judge's
refusal to award damages for the first and second periods of time.
Specifically, LimoLiner contends that it was entitled to damages
for the loss of use of Liner 3001 during a portion of the first
period and all of the second period.
The Magistrate Judge declined to award damages to
LimoLiner for the first period in light of her finding that Dattco
performed within a reasonable time. Because we affirm the

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Magistrate Judge's finding of timeliness and because, as LimoLiner
implicitly concedes, only a contrary finding would have supported
an award of damages to LimoLiner during the first period, the
Magistrate Judge did not clearly err in withholding damages for
the entire first period of time.
As to the second period of time, Massachusetts law has
long made clear that a prevailing party may be awarded damages
only to the extent those damages are attributable to breaches or
misconduct by the opposing party. See Stratton v. Posse Normal
Sch. of Gymnastics, 163 N.E. 905, 905 (Mass. 1928) ("Damages not
directly traceable to the violation of the contract or which result
from other causes are not allowed."). And LimoLiner has the burden
of establishing that the damages it suffered from the loss of use
of Liner 3001 during the second period were proximately caused by
Dattco's misconduct. See Augat, Inc. v. Aegis, Inc., 631 N.E.2d
995, 997 (Mass. 1994) ("The plaintiffs had to show the portion of
[the company's] losses . . . that was attributable to the
defendants' misconduct.").
In other words, LimoLiner must show that the damages it
sustained during the second period were proximately caused by the
misconduct that the Magistrate Judge did attribute to Dattco --
that is, Dattco's failure to repair the inverter. But this
LimoLiner has not done. For while LimoLiner makes two arguments

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on appeal as to why it ought to have been awarded damages for the
second period, both arguments amount to nonsequiturs.
LimoLiner first contends the Magistrate Judge's finding
that LimoLiner did not fail to mitigate damages during the second
period indicates that LimoLiner should in fact have been awarded
damages for that period. But LimoLiner's conduct is immaterial to
the inquiry, as the relevant question is whether Dattco's
misconduct proximately caused the damages sustained during the
second period. LimoLiner next contends that the Magistrate Judge
erroneously based her decision to withhold damages for the second
period on her finding that Dattco did not breach the parties'
contract in regard to timeliness. But the Magistrate Judge gave
no indication that she considered Dattco's timeliness in declining
to award damages to LimoLiner for the second period.
In consequence, LimoLiner has not demonstrated that the
Magistrate Judge clearly erred in awarding damages in the limited
manner that she did for the breach that she found. And, we note,
the record provides support for finding that Dattco had a basis
for holding onto Liner 3001 during the second period that was
unrelated to the breach that had been found. In concluding that
LimoLiner was not entitled to damages for replevin, the Magistrate
Judge found that Dattco lawfully retained possession of Liner 3001
during the second period pursuant to the Massachusetts Garage
Keepers statute. See Mass. Gen. Laws ch. 255, 25. And that

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finding supports Dattco's contention that the loss of use of Liner
3001 was driven by a reasonable payment dispute between the parties
and thus that the Magistrate Judge did not clearly err in awarding
damages as she did.

Outcome: For the reasons above, we affirm the Magistrate Judge's
disposition of the parties' state law contract claims. But we
certify the question regarding 940 C.M.R. 5.05 to the Supreme
Judicial Court of Massachusetts in accordance with the directions
set forth above.

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