United States District Court, D. Rhode Island
M. Lisi Senior United States District Judge
matter is before the Court on review of a Report and
Recommendation (“R&R”) issued by Magistrate
Judge Sullivan on October 25, 2016 (ECF No. 34). Because the
Defendant filed a timely objection to the R&R, the Court
reviews de novo those portions of the R&R to
which an objection has been made. See Fed.R.Civ.P.
72(b). The Court has thoroughly reviewed and considered the
R&R, the Defendant's objection thereto (ECF No.
35-1), and the Plaintiff's response (ECF No. 36). Having
done so, the Court now adopts the R&R in its entirety.
Accordingly, the Defendant's motion for partial summary
judgment on Counts I and II as to liability is GRANTED.
Factual Background and Procedural Summary
Plaintiff, The Union Labor Life Insurance Company
(“ULLICO”), seeks payment under a Guaranty (the
“Guaranty”) executed by Defendant J. Brian
O'Neill (“O'Neill”) in his personal
capacity in connection with a loan agreement (the “Loan
Agreement”) between ULLICO and two companies (the
“O'Neill Companies”) of which O'Neill is
the principal. The Loan Agreement served to refinance the
development and marketing of a condominium high-rise (the
“Property”) in Portsmouth, Rhode Island in 2012.
April 10, 2014, after the O'Neill Companies defaulted on
the Loan Agreement, ULLICO and O'Neill, together with the
O'Neill Companies and another O'Neill entity
(together with the O'Neill Companies, the
“O'Neill Entities”), executed a forbearance
agreement (the “Forbearance Agreement”) to extend
the term of the Loan Agreement and to afford the O'Neill
Companies the opportunity to sell the Property and repay the
loan. Shortly thereafter, the O'Neill Entities failed to
make an April 30, 2014 real estate tax payment as required
under the Forbearance Agreement. The failure to make the tax
payment constituted a default. ULLICO took title to the
Property and demanded payment from O'Neill under the
Guaranty and the Forbearance Agreement, which O'Neill
April 16, 2015, ULLICO brought claims against O'Neill for
breach of guaranty (Count I), breach of the Forbearance
Agreement (Count II), and breach of the covenant of good
faith and fair dealing (Count III). The parties engaged in,
at times, contentious discovery proceedings. On April 15,
2016, the Court granted the parties' joint motion for an
extension of time to complete discovery, extending factual
discovery to August 28, 2016, expert discovery to December
19, 2016, and re-setting the deadlines for the filing of
dispositive motions to January 18, 2017. April 15, 2016 Order
(ECF No. 21).
31, 2016, ULLICO filed a motion for partial summary judgment
on liability (ECF No. 22). O'Neill responded with an
objection on July 18, 2016 (ECF No. 24), to which ULLICO
filed a reply on August 9, 2016 (ECF No. 26). On August 22,
2016, the parties filed a joint motion (ECF No. 30) to stay
discovery and further extend the case management deadlines.
The joint motion states that resolution of Plaintiff's
summary judgment motion would “determine whether there
is any further need for discovery on liability issues or only
potentially Plaintiff's alleged damages.” Joint
Motion at 2. The Court granted the motion on August 23, 2016.
August 23, 2016 Order (ECF No. 31).
a hearing on September 21, 2016, Magistrate Judge Sullivan
issued a detailed and well-reasoned R&R, in which she
recommended that ULLICO's motion for partial summary
judgment be granted. On November 8, 2016, O'Neill filed a
timely objection to the R&R, to which ULLICO filed a
response in opposition on November 22, 2016.
Standard of Review
Court, in considering a motion for summary judgment, reviews
the record “in the light most favorable to the
non-moving party, drawing all reasonable inferences in its
favor.” Merchants Ins. Co. of New Hampshire, Inc.
v. U.S. Fidelity and Guar. Co., 143 F.3d 5, 7 (1st Cir.
1998)(citing Reich v. John Alden Life Ins. Co., 126
F.3d 1, 6 (1st Cir. 1997)).
as the party seeking summary judgment, bears the burden of
establishing the lack of a genuine issue of material fact.
Merchants Ins. Co. of New Hampshire, Inc. v. U.S.
Fidelity and Guar. Co., 143 F.3d at 7. “Once such
a showing is made, ‘the burden shifts to the nonmoving
party, who must, with respect to each issue on which [it]
would bear the burden of proof at trial, demonstrate that a
trier of fact could reasonably resolve that issue in [its]
favor.'” Flovac, Inc. v. Airvac, Inc., 817
F.3d 849, 853 (1st Cir. 2016) (quoting Borges ex rel.
S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A dispute is genuine if the
evidence about the fact is such that a reasonable jury could
resolve the point in the favor of the non-moving
party.” Prescott v. Higgins, 538 F.3d 32, 40
(1st Cir. 2008) (citations omitted). “A fact
is material if it has the potential of determining the
outcome of the litigation.” Id. (quoting
Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 25
(1st Cir. 2008)).
objections to the R&R echo his arguments opposing
ULLICO's motion for partial summary judgment.
Specifically, O'Neill contends that (1) ULLICO waived the
O'Neill Entities's obligation to pay real estate
taxes on April 30, 2014; (2) O'Neill's request for
additional discovery pursuant to Fed.R.Civ.P. 56(d) should
have been granted; and (3) the Forbearance Agreement did not
become effective until ...