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Before
Kayatta, Stahl, and Barron,
Circuit Judges.
But
LimoLiner does appeal the rulings below that Dattco may not be
held liable under a Massachusetts regulation for certain actions
and omissions that occurred on the job; that Dattco did not breach
the parties' oral contract to make the repairs in a timely manner;
and that Dattco owes damages only for the loss of use of the
vehicle for one limited period of time.
We
certify
question
concerning
the
Massachusetts
We otherwise affirm.
I.
fleet
of
luxury
motor
coaches
that
are
known
as
vehicles,
including
buses
and
coaches.
The
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and
that
Dattco
following inspection.
would
provide
list
of
repairs
that
meeting,
Dattco
generated
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
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,
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LimoLiner, Inc. v.
$10,404.
LimoLiner refused to pay, but offered to put the money
in escrow in exchange for the return of Liner 3001.
Dattco did
court
issued
the
requested
order
after
first
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A Magistrate Judge,
The
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.
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
Chapter
2(a).
The
Massachusetts
statute
to
issue
also
empowers
regulations
Attorney
the
violation
General
of
of
which
regulatory
claims
rely
on
one
of
those
Id. 5.05(2)(e).
on
Liner
3001,
even
though
LimoLiner
had
previously
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business-to-business
transactions
and
instead
regulates
But the
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).
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 businessto-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."
had
individuals.
in
mind
protection
for
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consumers,"
meaning
whole" and noted that the other two subsections of the regulation
explicitly
generally
referred
involved
to
in
"consumers"
consumer
and
"concern[ed]
transactions,"
such
matters
as
"the
Id.
to
consumers
and
their
interests,
and
subsection
(2)
Id.
Dattco contends -- and the Magistrate Judge agreed -that 5.05 is just like the subsection of the regulation construed
in Knapp.
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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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).
the
option
to
ask
customers
to
authorize
repairs
in
considered
in
Knapp.
See
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generally
id.
5.05
has
[or
seeks
to
have]
repairs,
service
or
maintenance
of
the
regulations
effective in 1976.
--
and
thus
this
regulation
Section
--
became
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.
business-to-business
transactions
concerning
motor
See id. at
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We
do
contract.
not
dispute
that
Massachusetts
law
governs
The
this
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The question,
the
context,
its
proper
direction
becomes
one
for
the
Massachusetts
law),
and
that
we
must
review
the
We find none.
Id.
follows.
The Magistrate Judge found that there was "no evidence
that LimoLiner ever told Dattco that it needed [Liner 3001] by a
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Id. at *5.
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.
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
perfunctory
manifestation
of
performance.2
mutually
agreed
suggestion
upon
term
rather
of
than
expedited
We therefore reject
LimoLiner first
the extent the Magistrate Judge did find that Dattco's performance
was timely, the Magistrate Judge committed clear error in so
finding.
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."
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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(finding that Dattco "did not breach the contract with regard to
the
timing
of
the
repairs,"
as
Dattco
performed
as
soon
as
See Hammond v. T.J. Litle & Co., Inc., 82 F.3d 1166, 1177
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parties.3
findings.
LimoLiner does contend that the Magistrate Judge failed
to take into consideration certain of Dattco's actions (or nonactions) 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).
adduced at trial, that Dattco was generally not busy during the
twelve-week period.
For example, in
the
Magistrate
Judge
reasonably
gave
weight
to
the
"evidence that once some repairs were performed, new problems were
found that had to be addressed."
*5.
Perhaps this record could be read to permit a different
finding.
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
party had and had not repudiated contract, the appellate court
deferred
to
repudiation).
the
district
court's
finding
that
there
was
no
Dattco did not breach its oral contract with LimoLiner with respect
to the timeliness of repair.
IV.
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.
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.
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.
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The
See
time
and
thus
"attribut[ing]
three-week
delay
and
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
reasonable
time.
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Because
we
affirm
the
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.
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.
LimoLiner has not done.
But this
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inquiry,
as
the
question
is
whether
Dattco's
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
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And that
But we
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