COURTWAY TRUST, BENJAMIN HALL, Trustee, v. PLANNING BOARD OF THE TOWN OF EDGARTOWN, SAM SHERMAN, FRED MASCOLO, MICHAEL MCCOURT, LUCY C. MORRISON, SCOTT MORGAN, AND JAMES CISEK, as they are the members of the Planning Board of the Town of Edgartown, GEOGHAN COOGAN, ESQ., As he is Agent for WJG Realty Trust, WILLIAM J. CUMMINGS, (last known) Trustee of the WJG REALTY Trust, STOP & SHOP, a subsidiary of Ahold USA and WJG REALTY COMPANY.

Plaintiff, Courtway Trust, Benjamin Hall, Trustee ("Trust" and "Trustee") owns and resides in a house at 14 Cyprian Way in Edgartown, Massachusetts, which abuts the back of what has been described as the only large-scale supermarket on Martha's Vineyard, located at 245 Upper Main Street in Edgartown. The Trust objects to plans put forward by the owners of that supermarket—the private Defendants, WJG Realty Company LLC and The Stop & Shop Supermarket Company LLC (collectively, the "Stop & Shop Defendants")—to construct a sizable expansion to the store. The Stop & Shop Defendants claim that the expansion will enhance the customer experience. [Note 1] The Trustee contends that his home will be adversely impacted by the expansion, particularly as to increased noise and shadow. Compl., ¶¶ 20, 22. On June 19, 2018, the Planning Board issued a decision allowing the expansion ("Decision"), and the Trust challenged the Decision by filing this lawsuit pursuant to G. L. c. 40A, § 17 on July 16, 2018. [Note 2]

Following the close of discovery on March 29, 2019, the Stop & Shop Defendants moved for summary judgment on the basis that the Trust is not a person aggrieved by the Decision for the purposes of G. L. c. 40A, § 17. For the reasons stated below, I conclude that the Stop & Shop Defendants have successfully rebutted the Trust's presumption of standing, and the Trust has failed to come forward with evidence to substantiate its allegations of aggrievement. In so concluding, I decline to consider documents late filed by the Trust on the day of the summary judgment hearing and also strike two additional filings late advanced by the Trust pursuant to Mass. R. Civ. P 56 (f). These matters are discussed below seriatum. Accordingly, the Stop & Shop Defendants' Renewed Motion for Summary Judgment is ALLOWED.

I. FINDINGS OF FACT

In deciding the Stop & Shop Defendants' Renewed Motion for Summary Judgment, I take facts not in dispute from the Concise Statement of Material Facts As To Which The Stop & Shop Defendants Contend There Is No Genuine Issue To Be Tried ("S&S Statement") and the affidavits and documents submitted therewith, as set forth below. I note also the concurrence of the Planning Board. [Note 3] The reason for so limiting the record, and excluding submissions that were late filed by the Trust in hand on the day of the summary judgment hearing requires discussion of the Trust's persistent difficulties in meeting deadlines under the Massachusetts Rules of Civil Procedure, the Land Court Rules, and the orders of this court. The procedural history and reasons for declining to consider these late filings are discussed in Part III of this decision.

1. Plaintiff Benjamin L. Hall as trustee of the Courtway Trust owns the property in which the Trustee resides at 14 Cyprian Way, Edgartown. The Trust's property is adjacent to the site of the proposed project, behind and to the north of the existing supermarket. Joint Statement for Case Management Conference to Be Held 9/14/18 ("Joint Statement"), at 1–2; Davis Aff., ¶ 4, Ex. C.

2. WJG Realty Company, LLC ("WJG") is the successor by conversion of WJG Realty Trust. Aff. of Lisa Davis ("Davis Aff."), ¶ 3, Ex. B to S&S Statement. WJG holds title to property located at 245 Upper Main Street, Edgartown, Massachusetts ( "Property"). Compl., ¶¶ 2, 12; Answer, ¶¶ 2, 12. Stop & Shop is the sole member and manager of WJG. Davis Aff., Ex. B; Aff. of Sara Jane Shanahan, Esq. (Shanahan Aff.), Ex. L, Interrog. Resp. No. 10.

3. The Stop & Shop Supermarket Company LLC ("Stop & Shop") has operated a grocery store and supermarket at the Property since about 1997. Davis Aff., ¶ 6. The Great Atlantic and Pacific Tea Co., Inc. ("A&P"), operated a supermarket at the Property prior to Stop & Shop since at least 1989. Davis Aff., ¶ 5

4. The current Stop & Shop supermarket at the Property comprises a one-story, 25,259-square- foot building with a parking lot fronting Upper Main Street in Edgartown and extending along one side of the store. The current loading dock is located at the back of the store. Davis Aff., ¶ 6.

5. On or about October 11, 2016, the Stop & Shop Defendants filed an application for a special permit with the Planning Board seeking to construct an addition to the supermarket. The proposed expansion would include 15,145 additional square feet, as well as relocation of a bank drive-thru, a redesigned parking lot with additional parking spaces, and a new loading dock on the western corner of the store. Davis Aff., ¶¶ 2, 7, Ex. A.

6. The Planning Board referred the project for further review to the Martha's Vineyard Commission ("MVC") on January 26, 2017. Davis Aff., ¶ 10. Ex. D. The MVC is the regional planning agency established by legislation for the Martha's Vineyard Islands and Elizabeth Island. Id. ¶¶ 10–12. The Stop & Shop Defendants submitted numerous plans, studies, and materials to the MVC, including an acoustical study prepared by Quan Tat, a Project Engineer for Vanasse Hangan Brustlin, Inc., dated June 2017 ("VHB Acoustic Study"). Davis Aff., ¶¶ 13–14, Exs. D & E; Aff. of Quan Tat ("Tat Aff."), ¶ 4, Ex. A.

7. The VHB Acoustic Study assessed the noise associated with the rooftop equipment and loading activities anticipated in connection with the proposed project. According to Tat, Stop & Shop's final design for the proposed project utilizes noise mitigation measures such as an acoustical enclosure and screening, equipment placement, acoustic fencing between the Trust's property and the supermarket, and loading dock electrical service (allowing delivery trucks to be turned off during deliveries). With these measures in place, Tat stated that, in his professional opinion, operation of the proposed expanded supermarket would not exceed noise standards established by the Department of Environmental Protection ("DEP"). Tat Aff., ¶¶ 7–8, Ex. A.

8. On or about January 25, 2018, the MVC issued a decision approving the special permit with six pages of specified conditions and referring the proposed project back to the Planning Board. Davis Aff,. ¶ 17, Ex. D. As to acoustic conditions, the MVC required that "there shall be no formal or informal activities that exceed the Commonwealth of Massachusetts Department of Environmental Protection's Noise Control Regulation 310 CMR 7.10 at all boundaries of the property or that exceed any applicable Town of Edgartown noise regulations." Davis Aff., Ex. D.

9. The Stop & Shop Defendants filed a renewed special permit application on February 22, 2018, following a change in membership of the Planning Board members. Davis Aff., ¶ 20, Ex. F; Shanahan Aff., Ex. E (Finn Dep., at 21:1–22:20; 139:16–143).

10. The Planning Board gave notice of a hearing on the special permit application in several places, including advertising in the Vineyard Gazette on January 5 and 12, 2018, posting by the Town Clerk on the Town website, posting on the Planning Board bulletin board, and distributing notice to Town departments. Abutters certified by the Assessor's Office were notified by mail on January 5, 2018. Davis Aff., ¶¶ 21–22, Ex. G; Shanahan Aff., Ex. E (Dep. of Douglas Finn, at 23:10–27:23; 119–120:6; 146:2–10).

11. The Planning Board conducted public hearings on the proposed project on several dates, including January 26, March 6, April 3, May 1, and May 8, 2018. Davis Aff., ¶ 22, Ex. G; Shanahan Aff., Exs. N, O, and K.

12. The Trustee or counsel for the Trust appeared and provided comments at several of the Planning Board meetings in 2018 about the proposed project and submitted letters to the Planning Board. Davis Aff., ¶¶ 23, 25, Ex. H; Shanahan Aff., Ex. E (Finn Dep., at 105:13– 106:6; 146:11–147:180), and Exs. F, G, K, N, and O; Shanahan Aff., Ex. M (March 18, 2019 Dep. of Benjamin Hall, Sr., at 29:3–20; 31:2–43:4; 48:1–20; 76:24–77:12, 79:4–20: 81:17–84:5, 112:15–20). See also Pl.'s Answers to Interrogs., Nos. 5 & 8. Representatives of the project proponent met with the Trustee to discuss the proposed project. Hall Dep. at 36:19– 40:9.

13. The Planning Board had before it the MVC decision and adopted the MVC's conditions regarding acoustic protections, as well as imposing a number of its own acoustic conditions. Davis Aff., ¶ 24 & Ex. G. These conditions included requiring construction of a sound- absorbing perimeter fence, mandating future sound testing as to activities at the loading dock and as to the mechanical equipment on the roof of the proposed project, and providing loading dock electrical service for refrigerated delivery trucks. Davis Aff., Ex. D, § 3.10, at 3–6 and 13.

14. Additionally, the architect for the Stop & Shop Defendants, Thomas Scott, AIA Scott Griffin Architects ("Scott"), prepared a shadow-impact study, which was submitted to the Planning Board for review. This study was based upon three-dimensional modeling software to evaluate the proposed project's potential to cast new shadows on abutters to the rear of the Property. Davis Aff., ¶ 26; Aff. of Thomas P. Scott, AIA ("Scott Aff."), ¶¶ 1, 2, 5. According to Scott's affidavit, in his professional opinion and based upon the shadow study, the proposed project would cast only a de minimus amount of additional shadow on the Trust's property beyond existing shadow levels. Scott Aff., ¶¶ 3, 12–13 & attached modeling exs.

15. The Trustee has acknowledged that the existing supermarket building shadows his yard in the winter quite a bit. Hall Dep. at 80:10–81:2. The Trustee's testimony as to his reasoning about why the proposed project would result in more than de minimis shadow impacts was "because the sun comes up every day and goes down every day." Hall Aff., 81:11–21.

16. On June 5, 2018, the Planning Board voted to approve the special permit application and on June 19, 2018, it issued its Decision approving the special permit application. Davis Aff., ¶ 27, Ex. G. The Planning Board determined that the proposed project "provides significant improvements on the site to reduce intrusion to adjacent residential areas." Id. The Decision required that the project comply with the MVC's conditions for approval and supplemented those with a number of its own conditions. Id.

17. The Decision was filed with the Edgartown Clerk on June 20, 2018. Plaintiff's complaint in the Land Court was docketed on July 16, 2018.

II. DISCUSSION

A court is to grant summary judgment only "where there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643–644 (2002). The court does not engage in fact finding. Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245 , 248 (2010). Where the court is presented with cross motions, as here, the court must view the evidence "in the light most favorable to the party against whom judgment is to enter." Id. at 248 n.4.

To bring a challenge under G. L. c. 40A, § 17, the challenger must have standing. Property owners abutting a project enjoy a presumption that they are aggrieved and entitled to challenge the local board's decision. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Despite this presumption of aggrievement, a plaintiff with party-in-interest status "always bears the burden of proving aggrievement necessary to confer standing." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012), citing Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34–35 (2006). The defendant may rebut the presumption of standing and force the plaintiff to prove its aggrievement. To rebut the presumption, the defendant must come forward with credible affirmative evidence that refutes the presumption and offer evidence "warranting a finding contrary to the presumed fact." 81 Spooner Road, LLC, supra, at 700, quoting Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). The defendant "may present affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis." 81 Spooner Road, LLC, at 702. The defendants may also rely on the plaintiff's lack of evidence, obtained through discovery, to rebut the claimed basis for standing. See Standerwick, supra, at 35 (and cases cited).

Following rebuttal of the presumption, a plaintiff has "the burden of proving, by direct facts and not speculative evidence, that [it] would suffer a particularized injury" that is "special and different from the concerns of the rest of the community." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120; Standerwick, supra, at 33, quoting Barvenick v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To meet this burden and prove aggrievement, the plaintiff must demonstrate "more than minimal or slightly appreciable harm. . . . The adverse effect on a plaintiff must be substantial enough to constitute actual aggrivement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy."

Aggrievement requires a showing of more than minimal or slightly appreciable harm . . . . The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy . . . . Put slightly differently, the analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be 'impacted' by such changes.

Kenner, supra, at 121–122.

Nonetheless, "a plaintiff is not required to prove by a preponderance of the evidence that his or her claims of particularized or special injury are true. 'Rather, the plaintiff must put forth credible evidence to substantiate his allegations.'" Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005), quoting Marashlian, supra, at 721. This "credible evidence" standard has both qualitative and quantitative components: "[q]uantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Butler, supra, at 441 (internal citation omitted). The facts offered by the plaintiff must be more than merely speculative. See Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008).

Here, the Trust's property shares a boundary with the Property, and the Defendants do not dispute that the Trust is an abutter. The Trust, therefore, enjoys the presumption of aggrievement. The Stop & Shop Defendants submitted evidence in attempt to rebut that presumption. Despite the Trustee's failure to timely oppose summary judgment in this case, the types of harm alleged by the Trust can be garnered from answers to interrogatories, deposition testimony, and the Joint Statement for Case Management filed at the outset of this case. In sum, the Trust has described its injuries to include two specific categories of harm—shadow impacts and noise impacts—as well a generalized expression of concern about loss of property value based on those impacts. [Note 4]

A. Shadow Impacts

As to shadow impacts, the Stop & Shop Defendants provide an affidavit from Scott, the proposed project's architect. According to his affidavit, Scott undertook a comprehensive analysis to evaluate potential impacts of shadow on the Trust's property. Scott explained that he utilized three-dimensional modeling software to compare shadowing on the Trust property under existing conditions with shadowing of the proposed project design once constructed. Davis Aff., ¶ 26; Scott Aff., ¶¶ 1, 2, & 5–12. Based on this analysis, Scott provided his sworn professional opinion that the proposed project would cast only a de minimus amount of new shadow on the Trust's property beyond existing shadow levels. Scott Aff., ¶¶ 3, 13. Scott's affidavit also appends graphic comparisons of existing shadow conditions with new shadow conditions. As Scott opines, any differences between the two are difficult to discern and can properly be characterized as de minimus. See Kenner, supra, at 123.

With the presumption of standing rebutted as to shadow impacts, the burden then shifts to the Trust to substantiate its allegations of aggrievement. The Trust did not come forward with any such evidence. Instead, the Trust untimely advanced a request pursuant to Mass. R. Civ. P. 56 (f) well after the close of discovery, as discussed later in this decision. It also bears consideration of what little evidence there is in the record from the Trust regarding potential new shadow. Notably, the Trustee acknowledged during his deposition that the existing supermarket building already shadows his yard in the winter quite a bit. Hall Dep. at 80:10–81:2. When asked during his deposition as to why the proposed project would result in more than a de minimis shadow impact, the Trustee's response was "because the sun comes up every day and goes down every day." Hall Aff. 81:11–21. This speculation cannot serve as the basis for a finding of standing. See Sweenie, supra, at 543. Accordingly, I find that the Trust does not have standing on the basis of shadow impacts.

B. Noise Impacts

As for potential noise impacts, the Stop & Shop Defendants submitted an affidavit from Tat, with his VHB Acoustic Study report appended. In the affidavit, Tat describes his considerable experience with acoustic studies and explains his method for assessing the potential noise from several sources in connection with the proposed project, particularly potential noise generated by anticipated loading activities and rooftop mechanical equipment. His analysis measured ambient sound at the rear of the existing supermarket along the shared property line with the Trust. During the winter months, Tat measured ambient or background testing levels within a range of 38 dB(A) to 41 dB(A) during daytime hours and 34 dB(A) to 38 dB(A) at night. Tat Aff., ¶ 4, Ex. A. Establishing ambient levels at a winter baseline is a conservative approach and advantageous to the Trust, Tat explains, because in the summer, Edgartown would be much busier with elevated ambient background levels that might mask noise generated by supermarket operations. Id. at Ex. A.

In his affidavit and report, Tat also discussed at length the various noise mitigation measures that the Stop & Shop Defendants will implement under the proposed project. Id. ¶ 5. According to Tat, Stop & Shop's final project design utilizes noise mitigation measures that include an acoustical enclosure and screening for mechanical equipment, equipment placement, acoustic fencing between the Trust's property and the supermarket, and loading dock electrical service, which will allow delivery trucks to be turned off during deliveries instead of idling. With these measures in place, Tat opined that operation of the expanded supermarket would not exceed DEP's noise standards. Id. ¶¶ 7–8, Ex. A.

As noted above, the MVC mandated these acoustic mitigation measures in approving the special permit. When the matter then came before the Planning Board, the Planning Board, too, adopted these acoustic conditions, as well as a number of its own conditions to further address noise concerns. The conditions include requiring construction of a sound-absorbing perimeter fence, mandating future sound testing as to activities at the loading dock and as to the mechanical equipment on the roof of the proposed project to ensure compliance with DEP standards, and providing loading dock electrical service for refrigerated delivery trucks. With Tat's Affidavit and the Decision's conditions, the Stop & Shop Defendants have rebutted the presumption of aggrievement as to noise concerns. As with shadow impacts, the Trust failed to come forward with any evidence to substantiate its professed concern about acoustic impacts.

C. Loss of Property Value

The Trust also articulated a vague and generalized concern about a loss of property value related to the project's purported noise and shadow impacts. Because the preservation of property value is not an interest that G. L. c. 40A is intended to protect, diminution in property value is only a sufficient basis for standing where it is "derivative of or related to cognizable interests protected by the applicable zoning scheme." Kenner, supra, 123, quoting Standerwick, supra, at 31–32. "To untether a claimed diminution in real estate values from an interest the zoning scheme seeks to protect would permit any abutter who claims that any change in property use would diminish the value of property to obtain standing to challenge a zoning decision." Id. at 123–124.

In Kenner, the Supreme Judicial Court rejected a claim of standing based on diminished property value solely related to a claim that the neighbors' project would obstruct the plaintiff's view of the ocean. Because the local zoning bylaw did not protect interests in views, the claimed loss of value was not tethered to a protected interest and could not serve as the basis for standing. Id. Here, too, the Edgartown Zoning Bylaw does not include property value as a protected interest either under the general regulations or under the B-II Upper Main Street District regulations. As such, the Trust can establish standing based on loss of property value only if such loss is sufficiently tethered to a protected interest. Because the Trust provided no credible evidence as to either noise or shadow impacts, the Trust's claim fails.

In sum, the Stop & Shop Defendants provided evidence rebutting the presumption of standing. The burden rested squarely on the Trust to provide credible evidence of particularized injury to a protected interest, which it failed to do. As a result, the Trust is without standing to challenge the Planning Board's Decision under G. L. c. 40A, § 17.

III. THE TRUST'S LATE FILINGS CANNOT BE CONSIDERED BY THE COURT

As indicated above, the Trust failed to timely file an opposition to summary judgment or opposing affidavits—despite this court's multiple extensions. The Trust's complaint was filed on July 16, 2018 and assigned to the Fast Track per Land Court Standing Order 1:04. On September 7, 2018, and prior to an initial case management conference, the Stop & Shop Defendants filed their Motion to Modify the F Track and hasten the schedule. As good cause for this request, the Stop & Shop Defendants explained that they hoped to begin construction of the supermarket renovations in the fall of 2019 following the busy summer season on Martha's Vineyard. In this motion, and likewise in the Joint Statement for Case Management Conference to Be Held on 9/14/18, the Stop & Shop Defendants sought to close fact discovery on November 30, 2018, with disclosure for affirmative experts and rebuttal experts concluding on December 14, 2018 and January 18, 2019, respectively. Summary judgment briefs were proposed to be filed by February 1, 2019. [Note 5]

The Trust did not file an opposition to the Motion to Modify the F Track, nor did it disagree with the dates proposed for discovery completion; the Trust did propose a slightly longer schedule for dispositive motions to be served on or before February 10, 2019. The court (Lombardi, J.) held a case management conference on September 14, 2018, with all counsel participating. A case schedule was put in place at that conference and distributed via docket entry on the same day: discovery was to be completed by January 18, 2019, and motions for summary judgment were to be filed on or before February 19, 2019 (in the event of an earlier filing, responses would be due 30 days after that filing date). Essentially, the court adopted the discovery schedule agreed to by all parties and extended the summary judgment deadline by nine days beyond the date requested by the Trust.

On February 12, 2019, the Stop & Shop Defendants filed a Motion for Summary Judgment, consistent with the case schedule. In response, the Trust filed the first of its many requests to extend the discovery schedule on February 13, 2019, notably doing so after the January 18 discovery deadline had passed. In support of his request, the Trust cited "discovery delays caused by events beyond counsel's control," including several medical and family emergencies involving the Trustee and a ski accident that delayed the deposition of the designee for Defendant WJG Realty. Pl.'s Mot. to Extend the Tracking Order & Statement of Reasons in Supp. Thereof. The Stop & Shop Defendants filed an objection to this extension, and a hearing was held on February 20, 2019. The court allowed the Trust's motion, extending the discovery deadline for two months, with all discovery-related motions—including motions to compel—due by March 29, 2019. The deadline for summary judgment motions was extended to April 4, 2019, with opposition due by May 6, 2019, and a summary judgment hearing was set for May 30, 2019. This new deadline for motions reflected those requested by the Trust. The docket entry cautioned that "no further continuances would be allowed." [Note 6]

On March 29, 2019, at the new close of discovery, the Stop & Shop Defendants filed their Motion to Compel Responses to Document Requests and Production of Documents, seeking documents from the Trust. A hearing on this motion was scheduled for April 17, 2019. Before the hearing, and again consistent with the modified case schedule, the Stop & Shop Defendants filed a renewed summary judgment package on April 4, 2019. [Note 7] On the day of the scheduled discovery hearing, the Trust filed a so-called emergency motion seeking to make several late filings in opposition to the motion to compel. [Note 8] At the hearing, counsel for the Stop & Shop Defendants advised that she had received the Trust's response to the pending document request late in the day on April 16 along with copies of documents, such that the motion to compel was moot. This court took the opportunity to review the modified schedule with all counsel, confirmed the March 29 deadline for discovery and discovery-related motions, and encouraged the parties to work together to resolve any lingering discovery issues. At that time, the Trust raised no objection to the May 6 deadline for summary judgment oppositions.

Three days before the May 6 deadline, on May 3, 2019, the Planning Board filed its Response to the Stop & Shop Defendants' Renewed Motion for Summary Judgment. The Trust did not file its opposition on May 6, 2019, but rather another motion to extend the time for filing an opposition, this time until May 14, 2019. [Note 9] The May 6 filing also included the Affidavit of Robert MacLeod. Shortly after these filings were docketed, the court received emails from Defendants' counsel advising that they did not assent to the late filing. Noting the lack of assent in a docket entry, the court nevertheless allowed the motion, giving the Trust until its requested deadline of May 14, 2019 to file its opposition papers. On May 9, the Trust filed a second affidavit, the Affidavit of Benjamin L. Hall, Trustee of Courtway Trust pursuant to Rule 56(f). Both the McLeod Affidavit and the Trustee Affidavit referenced and relied upon Mass. R. Civ. P. 56 (f).

When the May 14 deadline arrived, Plaintiff again requested more time to file an opposition. Although this was in fact Plaintiff's third request to extend the modified scheduling order, the filing was entitled: Plaintiff's 2nd Motion for Leave to Extend the Time to Respond to the Stop & Shop Defendants' Renewed Motion for Summary Judgment & Statement of Reasons Thereof and Affidavit of Benjamin L. Hall, Jr., Supporting Pl.'s 2nd Motion for Leave to Extend the Time to Respond to the Stop & Shop Defendants' Renewed Motion for Summary Judgment. As justification for this further second extension, the Trust explained that Plaintiff himself had been ill and unable to provide assistance to counsel, but was now able to do so. The Trust requested a short two-day extension with receipt of Plaintiff's opposition no later than May 16, 2019. For these reasons and despite having previously stated that no further extensions would be provided, the court allowed the Trust's motion. The docket entry read: "In the unlikely event that Plaintiff is unable to maintain the commitment to ensure receipt by May 16, 2019, a hearing will be scheduled on Friday, May 17 at 2:00 pm"

On May 16, the Trust did not file its opposition, but instead filed "3rd & Final Motion for Leave to Extend the Time to Respond to the Stop & Shop Defendants' Renewed Motion for Summary Judgment & Statement of Reasons in Support Thereof," together with another affidavit from Attorney Hall. [Note 10] Accordingly, a telephonic hearing was convened on May 17, 2019 relative to the Trust's newest motion in which the Trust sought to extend the date for its opposition to May 21, 2019. Relying on Attorney Hall's representations to the court and all counsel that Plaintiff had been ill and unable to participate in this matter, that Plaintiff was now well and able to participate, and that this truly would be the final extension, the court allowed the Trust's 3rd & Final Motion. The court once again allowed the Trust to submit its opposition on the date it sought, May 21, 2019—nine days in advance of the summary judgment hearing set for May 30, 2019. Defendants were also provided with an opportunity to submit a reply in response to the Trust's opposition at any time prior to the hearing.

May 21, 2019 came and went without a filing. On May 22, the court received a two-volume set of bound documents entitled "Plaintiff's Appendix of Exhibits Responsive to the Stop & Shop Defendants' renewed Motion for Summary Judgment, Volumes I and II," without a motion or brief. On the day of the May 30 summary judgment hearing, counsel for the Trust arrived in court with a number of new filings, including: (1) Plaintiff's Motion for Leave to Late File Responses to Respond to the Stop & Shop Defendants' Renewed Motion for Summary Judgment & Statement of Reasons Thereof; (2) Affidavit of Benjamin L. Hall, Jr., in Response to the Stop & Shop Defendants' Renewed Motion for Summary Judgment; (3) Plaintiff's Counter Statement to Stop & Shop Defendants' Statement of Material Facts; (4) Affidavit of Benjamin L. Hall, Trustee of Courtway Trust in Response to the Stop & Shop Defendants' Renewed Motion for Summary Judgment; and (5) Motion for a View. Defendants objected to the late filing of these documents.

In light of the Trust's persistent disregard of court orders and repeated failures to meet agreed-upon deadlines, I exercise my discretion under Land Court Standing Order 1-04 (F) and Mass. R. Civ. P. Rule 6 (b) to disregard the May 30 filings. [Note 11] The court allowed no fewer than five requests for extensions by the Trust—each time over Defendants' objections—and the Trust still failed to submit a timely opposition. This failure is particularly marked since the Trust agreed to the original schedule, and because each extension adopted the Trust's chosen dates. For these reasons, I decline to consider the Trust's May 30 filings in deciding the Stop & Shop Defendants' Motion for Summary Judgment.

IV. RELIEF UNDER MASS. R. CIV. P. 56 (f) IS NOT APPROPRIATE

I also deny the Trust's request for more time to conduct discovery pursuant to Mass. R. Civ. P. 56 (f). According to Mass. R. Civ. P. 56 (f):

should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or make such other order as is just.

The Supreme Judicial Court and Appeals Court have infrequently addressed Mass. R. Civ. P. 56 (f). "Experience under the cognate federal rule, [Note 12] however, is instructive." J.M. Greany & W.E. Hartwell, Massachusetts Summary Judgment Benchbook 65 (2005). Thus, Massachusetts trial courts have relied on interpretations of Mass. R. Civ. P. 56 (f) by the United States Court of Appeals for the First Circuit.

"Rule 56(f) 'looms large' when a party claims an inability to respond to an opponent's summary judgment motion because of incomplete discovery, given that it is 'intended to safeguard against judges swinging the summary judgment axe too hastily.'" Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996), quoting Resolution Trust Corp. v. North Bridge Associates, Inc., 22 F.3d 1198, 1203 (1994). However:

This does not mean . . . that [Mass. R. Civ. P. 56 (f)] has no bite or that its prophylaxis extends to litigants who act lackadaisically; use of the rule not only requires meeting several benchmarks . . ,. but also requires due diligence both in pursuing discovery before the summary judgment initiative surfaces and in pursuing an extension in time thereafter.

Ayala-Gerena, supra, at 92, quoting Resolution Trust Corp., supra, at 1203 (omissions and emphasis in original). Trial courts have considerable discretion with administering the requirements of a Mass. R. Civ. P. 56 (f) motion. Resolution Trust Corp., supra, at 1203; see also Sheinkopf v. Stone, 927 F. 2d 1259, 1263 (1st Cir. 1991).

In Resolution Trust Corp. v. North Bridge Associates, Inc., supra, at 1203, the First Circuit established five requirements for relief under Mass. R. Civ. P. Rule 56 (f): "authoritativeness, timeliness, good cause, utility, and materiality." Some Massachusetts courts have consolidated these five requirements into two rules: the movant must (1) "articulate by affidavit a plausible basis for the belief that discoverable materials probably exist which would influence the outcome of the pending summary judgment motion," and (2) "demonstrate that it was diligent in pursuing discovery before the summary judgment initiative surfaced . . . [o]r, put another way, the movant must show that there is ‘good cause for its failure to have conducted the discovery earlier."' Barthelmes v. Martineau, Sup. Ct., No. 98-2378A (May 22, 2000) (Fecteau, J.), quoting C.B. Trucking, Inc. v. Waste Management, Inc., 137 F.3d 41 (1st Cir. 1998); see also West Boylston Cinema Corp. v. Paramount Pictures Corp., Sup. Ct., No. 98-00252 (Sept. 18, 2000) (Toomey, J.). While there is no fixed time for filing a Mass. R. Civ. P. 56 (f) motion, "a party must invoke Rule 56(f) within a reasonable time following the receipt of a motion for summary judgment." Resolution Trust Corp., supra, at 1204.

Here, the Trust's request for Mass. R. Civ. P. 56 (f) relief ultimately fails because the Trust has not demonstrated the requisite due diligence or timeliness. While there is no fixed time for filing a Rule 56(f) motion, "a party must invoke Rule 56(f) within a reasonable time following the receipt of a motion for summary judgment." Resolution Trust Corp., 22 F.3d at 1204. The Trust did not demonstrate diligence in pursuing the sought after discovery in a timely fashion. The stated for the Trust's Mass. R. Civ. P. 56 (f) submission—the Trust's desire to see Scott's computer data from his shadow study—was articulated informally as early as the February 20, 2019 hearing on the Trust's Motion to Extend the Tracking Order. Nevertheless, the Trust did not raise concern with Defendants' discovery responses by the March 29, 2019 discovery deadline, despite the fact that the Trust had agreed to this deadline and the court had memorialized it in an order. The Trust had ample opportunity to file a motion to compel any necessary discovery by the March 29 discovery deadline, as the Stop & Shop Defendants did, but chose not to do so. It is too late now to bring these concerns forward under the guise of Mass. R. Civ. P. 56 (f).

The Trust instead chose to make two untimely Mass. R. Civ. P. 56 (f) filings. The first one, Affidavit of Robert MacLeod, was filed on the May 6 summary judgment opposition deadline, while the second one, Affidavit of Benjamin L. Hall, Trustee of Courtway Trust was filed three days later on May 9, 2019. Notably, the Stop & Shop Defendants first filed their motion for summary judgment on February 19, 2019, and then renewed their motion on April 4, 2019. The Trust's request for relief pursuant to Mass. R. Civ. P. 56 (f) was filed more than two and a half months after the Stop & Shop Defendants' original motion for summary judgment, and more than one month after their renewed motion. Under the circumstances in this case, such a delay is unreasonable. "Rule 56(f) is designed to minister to the vigilant, not to those who slumber upon perceptible rights." Resolution Trust Corp., supra, at 1203. [Note 13]

V. CONCLUSION

For these reasons, the Stop & Shop Defendants' Opposition to and Motion to Strike Plaintiff's Rule 56(f) Application and Renewed Motion for Summary Judgment are ALLOWED.

Judgment will enter accordingly.