Lennar Ne. Props., Inc. v. Barton Partners Architects Planners Inc.

LENNAR NORTHEAST PROPERTIES, INC.d/b/a LENNAR NORTHEAST URBAN,and LENNAR HINGHAM HOLDINGS, LLC, Plaintiffs, v. BARTON PARTNERS ARCHITECTS PLANNERS INC., et al., Defendants.

Civil Action No. 16-cv-12330-ADB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 30, 2021

MEMORANDUM AND ORDER ON LENNAR'S MOTION TO AMEND AND ARCHER'S MOTION FOR PARTIAL SUMMARY JUDGMENT

BURROUGHS, D.J.

This case arises from the allegedly defective construction of a condominium project in Hingham, Massachusetts (the "Condominium"). Plaintiffs Lennar Northeast Properties, Inc., d/b/a Lennar Northeast Urban, and Lennar Hingham Holdings, LLC (collectively, "Lennar") developed and own the Condominium. [ECF No. 82 ¶ 1]. Defendant Barton Partners Architects Planners Inc. designed the Condominium, and Defendant Building Engineering Resources Inc. engineered it. [Id.]. Defendants Highland Carpentry Inc., U.S. Framing Inc., USFNE, LLC, F.M. Home Improvement, Inc. ("F.M. Home"), and Archer Exteriors, Inc. ("Archer") were subcontracted to work on certain aspects of the Condominium. [Id.].

Currently before the Court are Lennar's motion to amend its complaint, [ECF No. 226], and Archer's motion for partial summary judgment, [ECF No. 223]. For the reasons set forth below, Lennar's motion is GRANTED, and Archer's motion is GRANTED in part and DENIED in part.

I. BACKGROUND

A. Factual Background

The Court assumes the parties' familiarity with the facts of this case and will therefore provide only a brief factual summary as germane to the instant motions.

The Condominium consists of multiple buildings, sixteen of which—Buildings 2, 3, 5, 13, 14, 15, 16, 17, 19, 20, 23, 24, 25, 26, 27, and 28—are implicated by Archer's motion. [ECF No. 224 at 2]. Each building, except Building 13, was completed and open for use at least six years before Lennar filed its amended complaint on April 29, 2019. [ECF No. 245 ¶ 9; ECF No. 82 (amended complaint)]. Building 13 consists of eight units; the certificate of occupancy for the eighth unit was issued after April 29, 2013. [ECF No. 245 ¶¶ 8, 10].

Archer's construction contract with Lennar includes an indemnity provision, which provides as follows:

Subcontractor shall defend Contractor and its officers, directors, agents and employees against any claim of any kind or nature made against Contractor and its officers, directors, agents and employees by anyone (other than Subcontractor) as a direct or indirect result of the Work. The monetary limitation on the extent of the limitation that bears a reasonable commercial relationship to the Contract, as defined by Section 725.06, Florida Statutes, is the Contract Price unless the Contract Price is less than one million dollars, then the monetary limitation is one million dollars. This provision is incorporated by reference into the project specifications or bid documents, if any. In addition, to the fullest extent permitted by law, Subcontractor shall indemnify Contractor and its officers, directors, agents and employees for and hold Contractor and its officers, directors, agents and employees harmless from any damage, injury, loss, liability or expense (including, but not limited to, attorney and expert fees) incurred by Contractor as a direct or indirect result of the Work. However, Subcontractor shall not be obligated to defend Contractor against any claim or indemnify Contractor for or hold Contractor harmless from any damage, injury, loss, liability or expense incurred by Contractor resulting solely from the negligence or willful misconduct of Contractor or others and not in any way resulting from any act or omission of Subcontractor. Paymentto Subcontractor by Contractor of any sums purportedly due under the Contract shall not be a condition precedent to Contractor's right to enforce Subcontractor's obligations hereunder to defend, indemnify and/or hold harmless Contractor. Subcontractor's obligations to defend, indemnify and hold harmless Contractor shall survive the expiration and termination of the Contract and shall continue until such time as all actions against Contractor arising directly or indirectly out of the Work are barred by applicable statutes of limitations. Subcontractor's obligation hereunder to defend Contractor is entirely separate from and independent of Subcontractor's obligation hereunder to indemnify and hold harmless Contractor and applies whether Subcontractor's liability has been determined and whether Contractor has incurred any damage, injury, loss, liability or expense as a direct or indirect result of the Work. Subcontractor agrees that during any stage of any claim, mediation, arbitration or lawsuit relating directly or indirectly to the Work, Contractor shall be entitled to summary adjudication of Subcontractor's obligation hereunder to defend Contractor. Subcontractor further agrees that Subcontractor shall reimburse Contractor for Contractor's reasonable attorney fees and other litigation expenses incurred in enforcing Subcontractor's obligations hereunder to defend, indemnify and/or hold harmless Contractor. In any and all claims against Contractor hereunder by any employee of Subcontractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under this Paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Subcontractor or any subcontractor under workers' or workmen's compensation acts, disability acts or other employee benefit acts. In addition, in no event shall Subcontractor's obligations hereunder be limited to the extent of any insurance available to or provided by Subcontractor.

[ECF No. 244-7 at 6-7].

B. Procedural Background

Lennar filed its amended complaint, which added Archer and the other subcontractors as defendants, on April 29, 2019. [ECF No. 82]. On September 30, 2019, F.M. Home, who has since settled and will soon be dismissed from the case, see [ECF No. 213 at 1], filed a motion for summary judgment, arguing that the Massachusetts Statute of Repose barred Lennar's claims against it, with respect to Buildings 3 and 20, because Lennar's amended complaint was filed more than six years after those buildings were opened. [ECF No. 108]. Lennar opposed the motion, maintaining that (1) the Statute of Repose does not apply to contractual indemnification claims, and (2) Lennar was asserting a contractual indemnification claim against F.M. Home.[ECF No. 121]. On January 22, 2021, the Court granted F.M. Home's motion. [ECF No. 221]. In so doing, the Court observed that Lennar's amended complaint did not explicitly reference indemnification or an indemnification provision, and that Lennar seemed to premise its breach of contract claim on its subcontractors' general failure to provide adequate work. [Id. at 8-11]. Because the Court concluded that all of Lennar's claims sounded in tort, it found those claims barred by the Statute of Repose, insofar as they concerned buildings that were completed more than six years before the amended complaint was filed. [Id. at 2].

On February 1, 2021, Archer moved for partial summary judgment, arguing that the Massachusetts Statute of Repose bars Lennar's claims against it insofar as those claims relate to the sixteen buildings that had been open for more than six years when Lennar filed its amended complaint. [ECF Nos. 223 (motion), 224 (brief)]. The following day, Lennar filed a motion for leave to amend its complaint. [ECF No. 226]. In addition to minor administrative matters (i.e., removing defendants who have settled and claims that it no longer intends to pursue), Lennar seeks to "clearly delineate a cause of action for breach of the contractual indemnity agreement." [Id. at 1]. On March 12, 2021, the parties opposed one another's motions, [ECF Nos. 243, 244], and on March 27, 2021, Archer filed a reply, [ECF No. 248].

After these motions had been filed, but before they were ripe for adjudication, on February 12, 2021, the Court ruled on a number of motions in limine. [ECF No. 231]. As is relevant here, the Court found that the indemnification provision in Archer's contract with Lennar was inconsistent with Massachusetts General Laws Chapter 149, § 29C, which imposes limits on subcontractor indemnification. [Id. at 10-12]. Nevertheless, because of a savings clause contained in the provision, the Court stated that it would permit the parties to refer to the indemnification provision at trial subject to a limiting instruction and/or redactions. [Id.].

II. MOTION TO AMEND

A. Legal Standard

Where, as here, leave to amend is sought more than twenty-one days after service of the complaint and the opposing party has not consented, a complaint may be amended only by leave of court. In general, leave should be freely given if, in the court's view, justice so requires. The standard may change, though, when—as in this case—the [C]ourt has entered a scheduling order under Federal Rule of Civil Procedure 16(b), which contains, inter alia, a deadline for amendment of the pleadings. In that event, a motion to amend filed outside the parameters set by the scheduling order will be granted only upon a showing of good cause. Such an elevated standard makes perfect sense: without it, scheduling orders would be little more than aspirational statements, to be disregarded by the parties whenever compliance proves inconvenient.

The good cause standard focuses on both the conduct of the moving party and the prejudice, if any, to the nonmovant. In the decisional calculus, the moving party's diligence or lack of diligence serves as the dominant criterion. [T]he longer a plaintiff delays, the more likely the motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend. Nor should a court be expected to look

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