Opinion
1384CV02393-BLS2
04-07-2016
Kiribati Seafood Company, LLC et al. v. Dechert, LLP Opinion No. 133283
Kenneth W. Salinger, Justice of the Superior Court.
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE
Kenneth W. Salinger, Justice of the Superior Court.
Kiribati Seafood Company, LLC, has sued Dechert, LLP for legal malpractice in handling litigation in Tahiti over damage to a fishing boat. Many of Kiribati's claims and all claims by Olympic Packer, LLC have been dismissed. Dechert moves for summary judgment on Kiribati's remaining claims. Kiribati, in turn, moves for partial summary judgment as to Dechert's liability with respect to the disallowance by a Tahitian appellate court of $1.76 million that had been awarded for claims asserted by Kiribati as the assignee of its insurer's subrogation rights. Dechert also moves to strike parts of Kiribati's summary judgment affidavits. The Court concludes that the contested portion of Kiribati's affidavits must be stricken.
Dechert is entitled to summary judgment in its favor as a matter of law. First, Dechert's alleged negligence in protecting Kiribati's rights as assignee of its insurer's subrogation interest was not the proximate cause of the Tahitian appellate court's decision. The appellate ruling disallowing this portion of Kiribati's damages was based on an error of law. It was therefore a superseding cause that relieves Dechert of any liability for negligence. Second, Kiribati had to keep its damaged fishing vessel in Tahiti, and incurred substantial costs as a result, because the boat was seized as security for Kiribati's contractual obligations to its local agent. The undisputed facts show that these costs were not caused by any malfeasance on the part of Dechert. Third, Kiribati became liable for the fees and expenses of a receiver appointed by a Washington State court because Kiribati violated that court's order to pay an amount of money into a court account, and not because of any negligence by Dechert. Finally, since Kiribati's substantive claims all fail as a matter of law, Kiribati is not entitled to recover attorneys fees previously paid to Dechert and is also not entitled to seek any punitive damages.
1. Procedural Background
The claims in this case arise from legal work by lawyers at Dechert's Paris office who represented Kiribati and Olympic Packer, LLC in a lawsuit against the Port of Papeete, Tahiti. That underlying case concerned damage to a commercial fishing vessel owned by Kiribati and chartered to a joint venture involving Olympic Packer.
In this lawsuit, Kiribati and Olympic Packer claimed that Dechert was liable for mishandling the underlying litigation. Dechert moved to dismiss the amended complaint. Judge Roach denied the motion with respect to legal malpractice claims asserted under theories of breach of fiduciary duty, negligence, breach of contract, and aiding and abetting the alleged breach of fiduciary duty by Dechert's Paris office (counts I to IV). She allowed the motion to dismiss with respect to Plaintiffs' claims for spoliation of evidence, violation of the federal Racketeer Influenced and Corrupt Organization Act, and violation of G.L.c. 93A (counts V to VII). Plaintiffs later filed a second amended complaint restating the basis for counts I to IV, and dropping the counts that had been dismissed by court order.
Last year the parties stipulated to the dismissal of certain claims, with prejudice. The stipulation of dismissal identifies eight different theories of liability or recovery that have been dismissed with prejudice. One of the dismissed theories of liability was identified as " Olympic Packer's only remaining claim in the case."
Kiribati has identified five categories of alleged damages that constitute its remaining claims in the case. They are:
(1) Kiribati's loss on appeal in Tahiti of $1.76 million that had been awarded to Kiribati by the Tahitian trial court based on a subrogation interest assigned to Kiribati by Lloyd's of London;
(2) Kiribati's liability for $900,000 in mooring fees and related costs for storing and maintaining the damaged fishing vessel in Tahiti;
(3) Kiribati's liability for $1.44 million in legal fees incurred in connection with Kiribati's receivership in Washington State;
(4) the legal fees that Kiribati paid to Dechert (totaling $540,000) and to Coudert Frères (totaling $340,000), which is the law firm where the Dechert lawyers who represented Kiribati used to practice; and
(5) unspecified punitive damages under Pennsylvania law.
Dechert moves for summary judgment in its favor on all remaining claims. Kiribati cross moves for partial summary judgment as to Dechert's liability on the Lloyd's Subrogation Claim.
2. Undisputed Material Facts
Many of Kiribati's responses to Dechert's statements of fact assert that " Kiribati is unable to admit or deny this assertion, " without reference to any evidence. The Court deems those facts to be undisputed for the purpose of evaluating the cross motions for summary judgment. Cf. Dziamba v. Warner & Stackpole, 56 Mass.App.Ct. 397, 401, 778 N.E.2d 927 (2002). A statement of material facts served under Superior Court Rule 9A(b)(5) is an offer of proof, not merely a request for admissions. The responding party must do more than assert that a statement is denied or disputed, and cannot create a disputed issue by refusing or stating that it is unable to admit the matter. Rather, the party must also point to admissible evidence that contradicts the statement. " [M]ere assertions of the existence of disputed facts without evidentiary support cannot defeat [a] summary judgment motion." Bergendahl v. Massachusetts Elec. Co., 45 Mass.App.Ct. 715, 718-19, 701 N.E.2d 656, rev. denied, 428 Mass. 1111, 707 N.E.2d 1078 (1998), cert. denied, 528 U.S. 929, 120 S.Ct. 326, 145 L.Ed.2d 254 (1999).
The following are undisputed facts, as demonstrated in the evidentiary materials submitted in connection with the pending motions, or reasonable inferences that a jury could draw from those facts. The Court " must . . . draw all reasonable inferences" from the evidence presented " in favor of the nonmoving party, " as a jury would be free to do at trial. Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119, 928 N.E.2d 327 (2010). It has done so.
2.1. Damage to the Madee and Tahiti Lawsuit
Kiribati bought and refurbished a fishing vessel that it named the Madee . Kiribati chartered the Madee to Olympic Packer and Dojin Co., Ltd. During its initial fishing voyage in December 2001, the Madee lost one of its rudders in the South Pacific Ocean. The Madee was brought to the Port of Papeete, in Tahiti, for repairs. Kiribati hired a maritime agent to represent its interests in Papeete. This agent arranged for the Madee to be placed in a dry dock owned by the Autonomous Port of Papeete (the " Port"). The dry dock collapsed, causing significant damage to the Madee .
Since the Tahitian courts are part of the French legal system, Kiribati and Olympic Packer hired two lawyers from the Paris office of the law firm Coudert Frères (Xavier Nyssen, a partner, and Karine Santoul, an associate) to represent them in litigation in Tahiti concerning the dry dock collapse. Coudert filed a lawsuit on behalf of Kiribati and Olympic Packer in February 2003 in the Commercial Court of Papeete. The suit was brought against the Port and others, and sought damages arising from the dry dock collapse. The Port asserted a counterclaim for unpaid moorage fees. Kiribati was also sued by the maritime agent for unpaid fees; that lawsuit was consolidated with the lawsuit between Kiribati and the Port.
The Commercial Court ordered the conservatory arrest of the Madee in order to secure the maritime agent's claim against Kiribati. This legal order barred Kiribati from removing the Madee from the Port of Papeete. It was in effect for ten years, from April 2003 until February 2013.
Kiribati was never able to get the Madee repaired. None of the shipyards in Tahiti agreed to submit a bid to repair the Madee . Shipyards in Mobile, Alabama, and Seattle, Washington, submitted repair bids. But Kiribati was unable to obtain a temporary International Load Line Certificate so that the Madee could proceed under its own power to another port for repairs. In any case, Kiribati could not afford to move the Madee to another port, and the Madee remained under conservatory arrest until February 2013.
Following the dry dock collapse, a Madee crew member named Steven Kleven served as the ship's custodian. Some years later Kiribati settled Kleven's claims for compensation by paying him $180,000 and giving him title to three skiffs.
At the time of the dry dock collapse, the Madee was insured under a port risk insurance policy by Certain Underwriters of Lloyd's of London. The policy had a coverage limit of $1.2 million. Eventually Lloyd's paid Kiribati $1,763,803.71, including interest and possibly other amounts not subject to the policy limit. As a result, Lloyd's was subrogated to Kiribati's rights against the Port in this amount. Lloyd's joined as a plaintiff in the pending lawsuit in Tahiti in order to pursue its subrogation claim against the Port. In December 2004, Lloyd's assigned to Kiribati all of Lloyd's subrogation rights against the Port. It did so as part of a settlement agreement between Lloyd's and Kiribati concerning the Tahiti lawsuit and continuing claims by Kiribati under its policy with Lloyd's.
Dechert took over the representation of Kiribati in the Tahiti lawsuit in October 2005, when Nyssen and Santoul left Coudert and joined Dechert's Paris office. Nyssen and Santoul continued to represent Kiribati thereafter. Coudert never merged with Dechert, and Dechert never assumed any of Coudert's liabilities.
Throughout the litigation between Kiribati and the Port, Larry Crovo served as the " Owners' Representative" in dealing with Coudert and then with Dechert regarding this litigation. Charles Crovo controlled 60.5 percent of the member interest in Kiribati and Olympic Packer from at least January 2008 through September 2011. During that time Nick Coscia controlled the remaining 39.5 percent member interest in both companies.
In October 2007, Coscia called Dechert's chairman in Philadelphia, and insulted Nyssen and Dechert's other lawyers in Paris. As a result, Larry Crovo instructed Nyssen to deal only with him, and not to communicate with Coscia. Larry Crovo later gave Nyssen permission to communicate directly with Charles Crovo as well. Coscia was aware that the Dechert lawyers had been instructed not to communicate with him.
2.2. Initial Decisions by Tahitian Courts
The Commercial Court in Tahiti issued its decision regarding the Madee in January 2008. The Commercial Court recognized the validity of the assignment of Lloyd's subrogation interest to Kiribati, and awarded Kiribati and Olympic Packer close to 488 million Pacific Francs on their claims against the Port. This sum included a recovery of the full $1.76 million in damages claimed under the Lloyd's subrogation interest that had been assigned to Kiribati, plus additional damages that had not been covered by the Lloyd's insurance policy. The Commercial Court also awarded 11 million Pacific Francs to the Port and 41.7 million Pacific Francs to the maritime agent on their claims against Kiribati.
At current exchange rates this would equal roughly $4.7 million. See, e.g., http://themoneyconverter.com/USD/XPF.aspx .
The Port and the other defendants appealed this decision to the Court of Appeal of Papeete. Dechert filed a brief with the Court of Appeal on behalf of Kiribati in November 2009. In that brief Dechert argued, among other things, that Kiribati was entitled (i) to recover the full amount of damages that Lloyd's had already paid to Kiribati, in Kiribati's capacity as assignee of Lloyd's subrogation interest; and (ii) in addition, to recover all damages in excess of and thus not covered by the Lloyd's insurance policy.
The Court of Appeal issued an initial decision regarding the damage to the Madee in April 2010. It awarded 160 million in Pacific Francs as provisional damages to Kiribati and Olympic Packer on their claims against the Port, and awarded 30.5 million Pacific Francs to the maritime agent on its claims against Kiribati. This award of 160 million in Pacific Francs to Kiribati was for damages not covered by the Lloyd's insurance policy. Although the court found that Lloyd's assignment of its subrogation interest to Kiribati was valid, it deferred decision on Kiribati's assertion of the rights assigned to it by Lloyd's and asked Kiribati to submit evidence of the consideration provided by Kiribati to Lloyd's for this assignment. The court explained that it wanted to avoid awarding double compensation for the same damage.
2.3. Transfer of Lawsuit Proceeds
In May 2010, one month after the initial appellate decision in Tahiti, the Port's insurer wired € 660, 109.26 to an account established by Dechert for the benefit of Kiribati. Before Dechert received these funds, it was informed that Dennis Moran (a lawyer who had previously represented Kiribati) and the Estate of Paul Schultz (a seaman on the Madee who has sued Kiribati for unpaid wages) both claimed liens on any proceeds from the Tahiti litigation. Two days after receiving this payment, Dechert requested authority from the Paris Court of First Instance to set aside part of these monies to secure the lien asserted by the Estate of Paul Schultz. The court denied Dechert's request.
Charles Crovo instructed Mr. Nyssen to wire the monies that had been paid by the Port's insurer to an IOLTA account maintained by Attorney M. DeLacy Crovo (also known as Marie Carlson) at Cambridge Savings Bank in Massachusetts. Attorney Crovo is Larry Crovo's daughter and Charles Crovo's sister. She is licensed to practice law in Massachusetts and had previously represented Kiribati. After further communications between the Crovos and Dechert, Charles Crovo instructed Mr. Nyssen to pay a local counsel's fee of € 4, 632 and Dechert's fee of $145,000 from the monies paid by the Port, and then to wire the balance to the escrow account of Kiribati's lawyer DeLacy Crovo. Mr. Nyssen double checked with Larry Crovo, who had always acted as the representative of Kiribati's owners in dealing with and instructing Dechert in connection with the Tahiti lawsuit. Larry Crovo confirmed that DeLacy Crovo was a lawyer who represented Kiribati and had previously performed legal services for the company, and that the account to which the funds were to be wired was not a personal account of Charles or Larry Crovo, but instead was an account maintained by DeLacy Crovo for her clients. Before Dechert transferred any of these funds to this IOLTA account, Larry Crovo spoke with Nick Coscia about the disposition of these funds. Larry Crovo told Coscia that he had agreed that Dechert should deduct what it was owed by Kiribati from these monies and then wire the balance to DeLacy Crovo, and that after the transfer these funds would be used to pay Kiribati's other creditors. Coscia did not object.
On May 19, 2010, in accord with the instructions of Charles and Larry Crovo, Dechert wired € 537, 470.26 (then equal to $671,876.57) from its Paris escrow account to the IOLTA account of DeLacy Crovo for the benefit of Kiribati.
2.4. The Washington State Action
Six days later, on May 25, 2010, Attorney Dennis Moran and his law firm sued Kiribati and Olympic Packing in Washington State Court for unpaid attorneys fees. Moran asked that court to appoint a receiver for Kiribati and Olympic Packing. On May 28, 2010, Moran filed a motion in the Washington action seeking an order directing Kiribati to deposit $581,434 into a court account to secure his claim for attorneys fees. The Washington court allowed this motion on June 22 and ordered Kiribati to pay this amount into a court account by June 25, 2010, at 4:00 p.m. Charles Crovo had the financial ability to comply with this order. Instead of complying with the order by the Washington state court, however, Charles Crovo caused almost all of the funds transferred to the IOLTA account by Dechert to be paid to himself or to companies that he owned.
Attorney Moran's law firm moved for the appointment of a receiver in the Washington action on June 29, 2010. That motion was granted on July 2, 2010, because Kiribati did not comply with the order to pay $581,434 into a court account. The Washington court also found Charles Crovo to be in contempt of court for failing to comply with that prior order. The Receiver ultimately recovered the monies distributed to Charles Crovo or his companies in violation of the Washington court's order. The Receivership terminated in June 2013.
2.5. Final Decision by Court of Appeal of Papeete
After the Court of Appeal in Papeete issued its initial decision regarding the Madee, Kiribati had the opportunity to submit further documentary evidence and legal briefing to that court. On behalf of Kiribati, Dechert provided the Court of Appeal with a copy of a July 2007 letter in which a representative of Lloyd's stated in part that " [t]he subrogation rights were assigned for valuable consideration, the amount of which is privileged." Although Kiribati had provided Dechert with a number of additional documents demonstrating the consideration provided by Kiribati in exchange for Lloyd's assigning its subrogation rights against the Port to Kiribati, Dechert did not provide all of those documents to the Court of Appeal.
In May 2011, the Court of Appeal of Papeete issued its final decision in the lawsuit between Kiribati and the Port. The court disallowed the portion of the Commercial Court's order that had awarded Kiribati $1,763,803.71 based on the subrogation interest that Lloyd's had assigned to Kiribati. The Court of Appeal said that it was doing so because Kiribati had not presented any evidence that Lloyd's had obtained any financial compensation for this assignment, and that this portion of the award therefore had to be vacated to avoid giving Kiribati a double recovery. The Court of Appeal reasoned that since Kiribati had already been compensated by Lloyd's for damages covered by its insurance policy in the amount of $1,763,803.71, Kiribati would obtain a double recovery if it were allowed to collect that amount a second time from the Port.
The decision by the Court of Appeal was appealable as of right to the Cour de Cassation in Paris, which is the highest court in the French judiciary. The Cour de Cassation only reviews prior decisions for errors of law.
In June 2011 Mr. Nyssen informed the Receiver for Kiribati that the final decision by the Court of Appeal could be challenged before the Cour de Cassation. He advised that " there may be grounds to call into question" the disallowance of the $1.76 million that had been awarded to Kiribati based on the Lloyd's subrogation interest, and that an opinion of a lawyer registered with the higher appellate court in Paris would be needed to evaluate the viability of appealing that decision. But Nyssen recommended against doing so, on the ground that any further appeal would be costly and would likely lead to further cross appeals by the Port and by Kiribati's maritime agent.
Based on that advice, the Receiver for Kiribati decided not to seek any further review of the final decision by the Court of Appeal of Papeete. The Washington court authorized the Receiver to waive all attempts to pursue such an appeal, and the Receiver did so.
2.6. Attorneys Fee Dispute
Dechert believed that it was owed additional attorneys fees by Kiribati. In September 2011 Dechert asserted a claim against Kiribati to the Chairman of the Paris Bar Association. Kiribati's Receiver retained counsel to represent Kiribati in this legal proceeding. In March 2012 the Paris Bar Chairman issued a decision ruling that Dechert was entitled to recover a total of $394,638.57. Kiribati knew that it could appeal this decision, but decided not to do so. Payment of this amount to Dechert was authorized by the Washington court overseeing Kiribati's receivership in June 2013.
3. Motions to Strike
3.1. Leubsdorf Affidavit
Kiribati has submitted and relies upon two affidavits by John Leubsdorf, a Professor at Rutgers University School of Law whom Kiribati describes as its " retained standard of care expert." Leubsdorf's first affidavit asserts that statements he made in his initial and rebuttal expert reports " are true and correct to the best of my knowledge and belief."
Leubsdorf opines in those reports that: (i) Dechert failure to submit certain documentation to the Court of Appeal in Papeete constituted a breach of its duty of diligence under French law and is the reason why the Court of Appeal reduced Kiribati's recovery in the Tahiti lawsuit by the amount of insurance payments that Kiribati had received from Lloyd's; (ii) Dechert breached its duty under French law to advise Kiribati about the legal consequences of leaving the Madee in Tahiti while that litigation was pending; (iii) Dechert was not obligated under French law to wire to Kiribati's Massachusetts lawyer any part of the proceeds paid by the Port of Papeete; and (iv) the fee proceeding between Dechert and Kiribati before the Chairman of the Paris Bar did not address whether Dechert had provided Kiribati with adequate representation. Leubsdorf's second affidavit describes Leubsdorf's qualifications to render these opinions, a topic that Leubsdorf describes as " tedious."
Dechert moves to strike Leubsdorf's first affidavit on the ground that Kiribati has not met its burden of proving " that Mr. Leubsdorf's education, training and experience qualifies him to provide expert testimony on any aspect of French law." The Court agrees. It will therefore strike this affidavit.
Kiribati has the burden of " show[ing] affirmatively" that its summary judgment affiants are " competent to testify to the matters stated" in their affidavits. Mass.R.Civ.P. 56(e); accord Stanton Industries, Inc. v. Columbus Mills, Inc., 4 Mass.App.Ct. 793, 794, 344 N.E.2d 199 (1976) (rescript) (court must disregard summary judgment affidavit from witness not shown to be competent to testify to assertions in affidavit).
Since Leubsdorf is offered as an expert witness, Kiribati must prove that he " is qualified as an expert in the relevant area of inquiry." Commonwealth v. Barbosa, 457 Mass. 773, 783, 933 N.E.2d 93 (2010). " The crucial issue, in determining whether a witness is qualified to give an expert opinion, is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony." Reckis v. Johnson & Johnson, 471 Mass. 272, 292, 28 N.E.3d 445 (2015), cert. denied, 136 S.Ct. 896, 193 L.Ed.2d 809 (2016) (internal quotation marks omitted), quoting Commonwealth v. Richardson, 423 Mass. 180, 183, 667 N.E.2d 257 (1996). An individual who lacks any real expertise in the subject matter of his or her proposed testimony is not qualified to provide any expert opinion. See, e.g., El Chaar v. Chehab, 78 Mass.App.Ct. 501, 508, 941 N.E.2d 75 (2010) (affirming ruling of trial judge that witness lacked expertise needed to testify as an expert in Lebanese law).
Kiribati has not met its burden of showing affirmatively that Prof. Leubsdorf is competent to render opinions about substantive French law, the professional obligations of French lawyers, or fee dispute proceedings before the Chairman of the Paris Bar. Leubsdorf never practiced as a lawyer in France or any other part of the French legal system, and has not identified any other education, training, experience, or familiarity in or with the topics he addresses in his expert reports. Leubsdorf wrote a book on French legal ethics in 2001. But Leubsdorf said in the introduction that the book " focus[ed] on the ideology of French legal ethics in its historical and social contexts, rather than the details of the rules governing avocats " who practice law in France. Even assuming that Leubsdorf has some expertise in " the ideology of French legal ethics, " that would not make him competent to render the opinions set forth in his reports. Leubsdorf also wrote two articles having some connection to French law. The most recent, published in 2001, is titled " On the History of French Legal Ethics." According to the article, it consists of excerpts from Leubsdorf's then-forthcoming book on the ideology of French legal ethics. The earlier article, published in 1999, is titled " The Independence of the Bar in France: Learning from Comparative Legal Ethics." The articles says that it " considers two French practices that seem to an American among the most unfamiliar: the rule requiring an avocat to keep secret from his own client communications with another avocat, . . . and the protections that the French extend to junior avocats working as trainees stagieres ), collaborators, and salaried employees in the law firms." Neither of these practices has anything to do with the opinions that Leubsdorf has proffered on behalf of Kiribati. Finally, Leubsdorf's assertions in his second affidavit that he has " read everything I could find about French lawyers and their practice, " once attended a meeting of the Commission de Dé ontologie of the Paris bar, has attended several French trials and appeals, and has " interviewed a number of French lawyers and two French academics" do not demonstrate that he has any expertise in substantive French civil law, in the substantive legal obligations of French lawyers to their clients under French law, or in the adjudication of fee disputes between lawyers and their clients under French law. The Court will therefore allow Dechert's motion to strike Leubsdorf's affidavit.
3.2. Coscia Affidavit
Dechert moves to strike specific statements in paragraph 10, 12, and 19 of the Affidavit of Nicholas Coscia, Esq. The Court must allow the motion with respect to the statements in paragraphs 10 and 12 because they contradict prior sworn deposition testimony by Mr. Coscia. See York v. Zurich Scudder Investments, Inc., 66 Mass.App.Ct. 610, 611, 849 N.E.2d 892 (2006) (" a party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition" (quoting O'Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 906, 606 N.E.2d 937 (1993)). The sentence in paragraph 19 of Coscia's affidavit regarding alleged instructions from Dechert must be stricken because it is not based on Coscia's personal knowledge. Coscia never says that the purported legal advice was ever communicated to him by Dechert. Instead, he appears to be summarizing hearsay statements by some unidentified person. Kiribati concedes this point in its opposition, by asserting that this statement in Coscia's affidavit is based on an email communication between Ms. Santoul at Dechert and Dennis Moran, another lawyer who was also representing Kiribati. Coscia is not competent to testify as to the substance of communications between two other people. See, e.g., Symmons v. O'Keeffe, 419 Mass. 288, 295, 644 N.E.2d 631 (1995) (" inadmissible hearsay" may not be considered in deciding summary judgment motion).
3.3. Neeleman Affidavit
Dechert also moves to strike specific statements in paragraphs 9 to 15 of the Declaration of John Neeleman, Esq., on the ground that those statements are not based on Mr. Neeleman's personal knowledge. Kiribati concedes the point, but asserts that these portions of Neeleman's affidavit are nonetheless admissible because they " respond to Dechert's contention that Kiribati is relying on a different theory in claiming moorage and custodial fees than is alleged in Kiribati's Amended Complaint." This response is unavailing. Kiribati may present whatever argument it would like in its memoranda of law. But a party may not respond to a motion for summary judgment by submitting a lawyer's affidavit that contains argument rather than admissible evidence. See, e.g., Bongaards v. Millen, 55 Mass.App.Ct. 51, 54 n.6, 768 N.E.2d 1107 (2002), aff'd on other grounds, 440 Mass. 10, 793 N.E.2d 335 (2003). The Court will therefore allow the motion to strike portions of the Neeleman affidavit.
4. Cross Motions for Summary Judgment
The parties stipulated at oral argument that the remaining claims, and thus the cross motions for summary judgment, are all governed by Massachusetts law.
To the extent that French law is relevant, the Court may determine the applicable principles of French law based on " any relevant material or source, including testimony." Mass.R.Civ.P. 44.1; accord Eastern Offices, Inc. v. P.F. O'Keefe Advertising Agency, Inc., 289 Mass. 23, 26, 193 N.E. 837 (1935). Thus, the Court may rely on the affidavit of a competent witness in determining relevant principles of French law. See Desjardins Ducharme v. Hunnewell, 411 Mass. 711, 715 n.5, 585 N.E.2d 321 (1992). Under modern practice the content of foreign law is a question of law to be resolved by the court, not a question of fact to be decided by a jury. See Rule 44.1; El Chaar, 78 Mass.App.Ct. at 505 n.9; Berman v. Alexander, 57 Mass.App.Ct. 181, 190, 782 N.E.2d 14 (2003).
4.1. Loss of the Lloyd's Subrogation Interest
The damage award to Kiribati by the Commercial Court in Tahiti included $1.76 million to compensate for the damages paid for by Lloyd's, which Kiribati had claimed as the assignee of Lloyd's subrogation interest against the Port. In addition, it also included several million dollars to compensate Kiribati for losses not covered by Lloyd's. The Court of Appeal of Papeete held that the assignment of Lloyd's subrogation interest to Kiribati was valid and legally effective. It nonetheless disallowed the $1.76 million that Kiribati claimed as Lloyd's assignee on the ground that it represented an impermissible double recovery in the absence of evidence that Kiribati paid Lloyd's sufficient compensation for this assignment.
Kiribati claims that this part of the Court of Appeal's decision was caused by Dechert's alleged negligence in failing to present all available evidence regarding the consideration that Kiribati gave Lloyd's for this assignment. Dechert counters that this part of the appellate decision constituted judicial error, and thus that Dechert's alleged negligence could not have been the proximate cause of this ruling.
Dechert is entitled to summary judgment in its favor on this claim. Kiribati's arguments that Dechert is barred from arguing that the Court of Appeal of Papeete committed error, because it constitutes an impermissible collateral attack on the prior ruling and because Dechert waived this defense, are without merit. The Court concludes that the disputed part of the underlying decision was erroneous as a matter of law, and that this judicial error was a superseding cause that relieves Dechert of any liability for its alleged negligence.
4.1.1. Judicial Error as Superseding Cause
As explained below, Dechert's argument that the alleged negligence by Dechert could not have been the proximate cause of the adverse ruling concerning Lloyd's subrogation interest, because the Court of Appeal's decision was an error of law that constitutes a superseding cause, is a permissible defense to Kiribati's claim. It is therefore not an impermissible collateral attack on the Tahitian decision. See Church v. Jamison, 143 Cal.App.4th 1568, 1583-85, 50 Cal.Rptr.3d 166 (Cal.Ct.App. 2006).
If Kiribati cannot establish that negligence by Dechert was the proximate cause of its loss, because the undisputed facts show that a judicial error by the Court of Appeal was a superseding cause of that loss, then Dechert would be entitled to summary judgment in its favor. See Coastal Orthopaedic Institute, P.C. v. Bongiorno, 61 Mass.App.Ct. 55, 63-64, 807 N.E.2d 187 (2004) (affirming summary judgment for legal malpractice defendant because undisputed facts showed plaintiff could not prove that alleged negligence proximately caused injury); Fiduciary Trust Co. v. Bingham, Dana & Gould, 58 Mass.App.Ct. 245, 251-54, 789 N.E.2d 171 (2003) (same). Proximate causation is an essential element of Kiribati's claims against Dechert for legal malpractice. See Meyer v. Wagner, 429 Mass. 410, 424, 709 N.E.2d 784 (1999). A superseding cause relieves the defendant of liability for its negligence " as a matter of law" by " extinguish[ing]" any prior proximate cause. Kent v. Commonwealth, 437 Mass. 312, 321, 771 N.E.2d 770 (2002).
Dechert correctly argues that if the Court of Appeal decision was the result of a legal error by that court, then that judicial error would be a superseding cause that breaks the chain of causation flowing from the alleged negligence of Dechert, and thus would relieve Dechert of any liability for its negligence. See Egervary v. Young, 366 F.3d 238, 250-51 (3d Cir. 2004) (reversing denial of summary judgment to legal malpractice defendant); Time Terminals, Inc. v. Egan, Flanagan and Cohen, P.C., Hampden S.Ct. no. 04cv0628, 2010 WL 3326928, *4 (2010) (Sweeney, J.) (granting summary judgment to legal malpractice defendant), aff'd, 81 Mass.App.Ct. 1110, 2011 WL 7069275, 959 N.E.2d 1010 (unpublished), rev. denied, 461 Mass. 1112, 964 N.E.2d 986 (2012); accord Huang v. Brenson, 2014 IL App (1st) 123231, 379 Ill.Dec. 891, 7 N.E.3d 729, 737 (Ill.App.), app. den., 386 Ill.Dec. 476, 20 N.E.3d 1254 (Ill. 2014) (affirming dismissal of legal malpractice claim); Crestwood Cove Apartments Business Trust v. Turner, 2007 UT 48, 164 P.3d 1247, 1255-56 (Utah 2007) (affirming summary judgment in favor of legal malpractice defendant); Cedeno v. Gumbiner, 347 Ill.App.3d 169, 806 N.E.2d 1188, 1194, 282 Ill.Dec. 600 (Ill.App. 2004) (same); Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345, 348 (Nev. 2002) (" In cases where no appeal from an adverse ruling was filed, the defendants in the legal malpractice action are able to assert, as an affirmative defense, that the proximate cause of damages was not the attorneys negligence but judicial error that could have been corrected on appeal").
This follows from the general principle that " [w]here . . . the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause." Kent, 437 Mass. at 321-22, quoting Restatement (Second) of Torts § 452(2) (1965). Under French law, including Article 12 of the French Civil Procedure Code, the Court of Appeal of Papeete had a duty to apply the governing law correctly. (The Court credits the testimony to this effect by Xavier Vuitton, Esq.--a French lawyer and member of the Paris Bar whose training, education, and experience make him competent to render such an opinion.) Indeed, " all courts . . . have a duty to find and apply the correct law." United States v. Irey, 612 F.3d 1160, 1215 n.33 (11th Cir. 2010); accord, e.g., Jancey v. School Comm. of Everett, 427 Mass. 603, 606, 695 N.E.2d 194 (1998) (" It is the duty of an appellate court to apply the correct legal standard"). Given this duty, a judicial error resulting from a court's incorrect application of the law is a superseding cause vis-à-vis any legal malpractice at an earlier stage of the case. Cf. Connecticut Junior Republic v. Doherty, 20 Mass.App.Ct. 107, 111-12, 478 N.E.2d 735 (1985) (applying § 452(2) duty-shifting rule of superseding causation to legal malpractice claim).
In most cases, a subsequent act or omission will constitute a superseding cause only if it was not foreseeable. See Pratt v. Martineau, 69 Mass.App.Ct. 670, 674, 870 N.E.2d 1122 (2007) (" The general rule is that intervening conduct of a third party will relieve a defendant of culpability for antecedent negligence only if such an intervening response was not reasonably foreseeable") (quoting Commonwealth v. Carlson, 447 Mass. 79, 84, 849 N.E.2d 790 (2006)). But there are exceptions to this general rule. See, e.g., Jesionek v. Massachusetts Port Auth., 376 Mass. 101, 105, 378 N.E.2d 995 (1978) (" The cases which have absolved an owner of a vehicle of liability when that vehicle has been stolen constitute a narrow exception to this general rule and represent an independent legal judgment that individuals are not bound to anticipate or guard against the actions of thieves"). As the Supreme Judicial Court has explained, " [t]he definition or scope of proximate cause (or foreseeable result)" --including the definition of what constitutes a superseding cause that will extinguish or break the chain of proximate causation--" is . . . 'based on considerations of policy and pragmatic judgment.'" Kent, 312 Mass. at 320, quoting Poskus v. Lombardo's of Randolph, Inc., 423 Mass. 637, 640, 670 N.E.2d 383 (1996).
The legal principle summarized in Restatement § 452(2) and applied in Kent is an exception, based on policy and pragmatic grounds, to the general rule that foreseeable wrongdoing cannot be a superseding cause. Cf. Kent, supra (holding that alleged Parole Board's alleged negligence in releasing prisoner to a deportation warrant was not proximate cause of injuries suffered by police officer shot by prisoner because subsequent release of prisoner by federal Immigration and Naturalization Service was a superseding cause, without considering whether action by INS was foreseeable). As the Restatement explains:
Subsection (2) [of § 452] covers the exceptional cases in which, because the duty, and hence the entire responsibility for the situation, has been shifted to a third person, the original actor is relieved of liability for the result which follows from the operation of his own negligence. The shifted responsibility means in effect that the duty, or obligation, of the original actor in the matter has terminated, and has been replaced by that of the third person.
Restatement § 452(2), comment d.
Since an appellate court has a duty to apply the law correctly, judicial error resulting in an adverse ruling is a superseding cause that relieves a negligent attorney from liability for legal malpractice without regard to whether the judicial error was foreseeable. " Although a client may believe that an attorney has not litigated a case in the most effective manner possible, such beliefs are irrelevant where the attorney has presented the necessary arguments and the judge, albeit in error, rejects them. Were it otherwise, an attorney would be subject to liability every time a judge erroneously ruled against the attorney's client. In effect, an attorney would become a guarantor of correct judicial decisionmaking--a result we cannot accept." Crestwood Cove, 164 P.3d at 1256.
In sum, Dechert is entitled to seek summary judgment on the ground that the Court of Appeal's decision was a judicial error and thus a superseding cause of Kiribati's claimed loss, without regard to whether the court's error was foreseeable.
4.1.2. Claim of Waiver
Kiribati's insistence that Dechert has waived any claim that the Court of Appeal of Papeete made a legal error is also unavailing. Kiribati argues that Dechert waived this claim because Dechert never presented the correct legal analysis to the Court of Appeal, and also because Dechert purportedly told Kiribati that any appeal from the Court of Appeal decision would be futile. The Court need not decide whether either of these circumstances would constitute waiver, because neither of these factual assertions finds any support in the undisputed evidentiary record.
Kiribati's assertion that Dechert never told the Court of Appeal that Kiribati was seeking damages covered by the insurance policy as Lloyd's assignee and discrete additional damages in its own name is false. The undisputed evidence shows that Dechert made this very argument in its November 2009 brief to the Court of Appeal.
The summary judgment record also demonstrates that Dechert never told Kiribati that it would be " futile" to appeal the adverse decision to the Cour de Cassation in Paris. In fact, Dechert advised that " there may be grounds to call into question" the disallowance of the $1.76 million that had been awarded to Kiribati based on the subrogation interest it had acquired from Lloyd's, but that appealing on that ground would invite costly cross appeals by the Port and by Kiribati's maritime agent. The Receiver then in control of Kiribati decided not to appeal on cost-benefit grounds, not because Dechert said that the final Court of Appeal ruling had been correctly decided.
4.1.3. Error by the Tahitian Court
The decision by the Court of Appeal of Papeete to disallow the $1.76 million portion of Kiribati's damage award attributable to Lloyd's subrogation interest was the result of a judicial error, and as a matter of law was not caused by any negligence on the part of Dechert.
Kiribati correctly concedes that the standard for determining whether Dechert's alleged negligence caused Kiribati to suffer any injury is an objective one that requires determination of what the result of the underlying litigation would have been if it were decided by a reasonable judge, and not a subjective standard that evaluates what any particular judge or appellate panel would have done. See R. Mallen & A. Rhodes, Legal Malpractice § 37.151, at 1851 (2015). Whether a lawyer has been negligent and therefore committed legal malpractice " is based on an objective standard." Meyer, 429 Mass. at 424. As a result, " [w]hether the plaintiff in a legal malpractice action would have prevailed on appeal in the underlying case is a matter of law to be decided by the court." Global NAPs, 457 Mass. at 494 n.8. The same is true with respect to whether the Court of Appeal of Papeete correctly applied French law when it disallowed the portion of Kiribati's damage award that was based on Lloyd's subrogation interest. See generally Mallen & Rhodes, supra, at 1852 (" Since what a judge should have done almost invariably presents an issue of law, the question should not be submitted to a jury").
The principles of French law that the Court of Appeal of Papeete should have applied are as follows. Under French law, tort law and damage indemnification are governed by the " full reparation" principle, which provides that a wrongdoer must compensate an injured plaintiff for the total amount of the plaintiff's loss. Any excess or double recovery would violate this principle. So would an award that fails to compensate the plaintiff for the full amount of its injury. French law recognizes assignments of legal rights to recovery and, in particular, permits an insurer to assign its subrogation rights to its insured. Under French law, where an insurer or other entity with legal rights against a third party assigns those rights to someone else, the assignee is entitled to stand in the shoes of the assignor, sue the third party, and obtain the same reparation or damages that the assignee would have received if it had brought suit in its own name. So long as the assignment is valid and enforceable, the amount of consideration provided in exchange for the assignment is irrelevant under French law to determining what amount of damages may be recovered from the defendant who caused the injury.
The Court credits the undisputed testimony of Xavier Vuitton with respect to these issues. Kiribati tried to challenge Vuitton's testimony through the expert reports of John Leubsdorf. As discussed above, however, the Court is striking Leubsdorf's opinions regarding French law because Kiribati did not meet its burden of proving that Leubsdorf is competent to provide such testimony.
The " indemnity principle" of French law has no bearing on the claims that Kiribati asserted against the port. The indemnity principle is part of the French insurance code. It provides that " the indemnity the insurer owes the insured may not exceed the total value of the insured thing at the time of the damage." This principle governs the relationship between an insured that has suffered damage and its insurer. It has no application to claims by a damaged insured or its insurer against a third party that caused the injury. Once again, the Court credits the undisputed testimony of Xavier Vuitton with respect to these issues.
If Lloyd's had not assigned its subrogation interest to Kiribati, then under the full reparation principle Lloyd's would have been entitled to recover from the Port the entire $1.76 million that Lloyd's had to pay Kiribati as a result of the Port's negligence. In addition, Kiribati would have been entitled to recover the entire amount of any additional losses it incurred that were not compensated by Lloyd's.
Under French law, it makes no difference whether Lloyd's brought suit in its own name or whether it instead assigned its subrogation rights to Kiribati and allowed Kiribati to seek the damages that were owed by the Port to Lloyd's.
The decision by the Court of Appeal to disallow the $1.76 million portion of Kiribati's damage award that was attributable the Lloyd's subrogation interest was an error of law. Since the Court of Appeal ruled that Lloyd's assignment of its subrogation interest against the Port to Kiribati was valid, under French law Kiribati was permitted to stand in the shoes of Lloyd's for the purpose of seeking recovery from the Port. Thus, Kiribati was entitled as Lloyd's assignee to recover from the Port the $1.76 million in damages suffered by Lloyd's, and was also entitled to recover in its own right the full amount of additional damages suffered by Kiribati that were not covered by the Lloyd's insurance policy, as found by the Commercial Court in Tahiti. Under French law, it was not double recovery for Kiribati to have obtained $1.76 million in compensation from Lloyd's and then, in its capacity as Lloyd's subrogee, to seek reimbursement of that amount from the Port. The contrary decision by the Court of Appeal was an error of law. By barring Kiribati from obtaining full compensation for the damages that the Commercial Court concluded had been caused to Lloyd's and Kiribati by the Port's negligence, the Court of Appeal's ruling violated the full reparation principle.
The Court of Appeal committed a further error of law in concluding that evidence of the amount of consideration given by Kiribati to Lloyd's had any bearing on whether the damages awarded to Kiribati constituted double recovery in violation of the full reparation principle. Once the Court of Appeal found that Lloyd's assignment of its subrogation interest was valid, evidence of the amount of consideration received by Lloyd's was legally irrelevant because Kiribati stood in the shoes of Lloyd's in asserting that interest against the Port.
Dechert's alleged failure to provide the Court of Appeal with all available evidence of the consideration from Kiribati to Lloyd's would therefore not have made any difference to the outcome if the Court of Appeal had correctly applied French law. The adverse result of which Kiribati complains was caused by judicial error, not by the alleged negligence of Dechert.
In sum, the undisputed material facts demonstrate that the judicial error by the Court of Appeal was a superseding cause that relieves Dechert of any negligence in its representation of Kiribati before that court. Since " [n]o statement or omission by" Dechert regarding consideration given by Kiribati to Lloyd's " could possibly have made the issuance of such an order appropriate, " the decision by the Court of Appeal of Papeete " amounted to an error of law for which the judge alone was responsible." Egervary, 366 F.3d at 250.
4.2. Costs of Keeping the Madee in Tahiti
Kiribati makes the further claim that Dechert negligently " instructed Kiribati not to move or repair the MADEE so as not to undermine the damages claim" against the Port, and that as a result Kiribati incurred $900,000 in unnecessary expenses (consisting of $720,000 in moorage fees owed to the Port and an additional $180,000 charged by and ultimately paid to Steven Kleven to maintain the Madee ). Dechert is entitled to summary judgment on this claim because the record makes clear that Kiribati cannot prove either of these elements. See generally Roman v. Trustees of Tufts College, 461 Mass. 707, 711, 964 N.E.2d 331 (2012) (" A nonmoving party's failure to establish an essential element of her claim 'renders all other facts immaterial' and mandates summary judgment in favor of the moving party" (quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711, 575 N.E.2d 734 (1991)); Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500, 930 N.E.2d 1262 (2010) (" The issue whether an attorney's negligence was a proximate cause of a client's loss may be resolved at the summary judgment stage").
The undisputed facts demonstrate that Dechert never instructed Kiribati not to remove the Madee from Papeete. To the contrary, the email relied upon by Kiribati (which was sent by Karine Santoul in July 2005, before she joined Dechert) advises that Kiribati would undermine its damages claim if it were to enter into any agreement with the Port in which Kiribati acknowledge that the Madee could " sail on its own." This email never instructs or advises Kiribati to refrain from having the Madee towed to another port for repairs, sale, or to be scrapped.
In any case the undisputed facts also demonstrate that Kiribati could not have removed the Madee from Papeete until after the conservatory arrest of the Madee was terminated in February 2013. The Commercial Court in Tahiti had ordered the conservatory arrest of the Madee in order to secure the maritime agent's claim against Kiribati. Thus, even if there were evidence that Dechert had negligently instructed Kiribati not to move the Madee, which there is not, Kiribati would still not be able to succeed on its claim for $900,000 in moorage fees and maintenance costs. The undisputed facts show that nothing Dechert (or lawyers who later joined Dechert) did or failed to do caused Kiribati to incur those expenses. To the contrary, the record demonstrates that Kiribati incurred those costs because it failed to resolve the claims for payment by its own maritime agent in Papeete.
4.3. Kiribati's Receivership Costs
Kiribati also claims that Dechert was negligent when it transferred $671,876.57 in funds belonging to Kiribati to an IOLTA account of Kiribati's Massachusetts lawyer, that this negligence allowed Charles Crovo to abscond with these funds rather than pay them into court as ordered by the Washington State court, that but for Dechert's negligence the Washington court never would have appointed a receiver for Kiribati, and that Dechert is therefore liable for the $1.44 million in attorneys fees and other costs incurred by that receiver. Dechert is entitled to summary judgment on this claim because the undisputed material facts demonstrate that Kiribati cannot prove that Dechert violated the standard of care when it made this transfer, or that Dechert's actions in transferring these funds was a proximate cause of the appointment of the receiver. See Roman, 461 Mass. at 711.
Kiribati cannot prove Dechert was negligent in transferring these funds. It is undisputed that these monies belonged to Kiribati, that Kiribati was a limited liability company, that at the time Charles Crovo controlled 60.5 percent of the member interest in Kiribati and was authorized to act on Kiribati's behalf, and that Dechert was instructed by Charles Crovo to transfer these funds of Kiribati to an account controlled by the company's lawyer in Massachusetts. It is also undisputed that DeLacy Crovo was authorized to practice law in Massachusetts, that she represented Kiribati, and that the account to which Dechert transferred Kiribati's funds was indeed DeLacy Crovo's IOLTA account for holding client money. There is no evidence that Dechert knew or should have known that Charles Crovo would attempt to abscond with these funds. To the contrary, it is undisputed that Nicholas Coscia, who controlled the minority ownership interest in Kiribati, was told about this transfer in advance by Larry Crovo and accepted his statement that these monies would be used to pay creditors of Kiribati. Dechert transferred these funds to Kiribati's Massachusetts lawyer more than a month before the Washington State court ordered Kiribati and Charles Crovo to pay most of them into a court account. Thus, Kiribati cannot prove that Dechert had any obligation to send the money directly to the Washington State court rather than comply with its client's order to transfer the money to DeLacy Crovo's IOLTA account.
In any case, the summary judgment record also demonstrates that no act or omission by Dechert caused the Washington State court to put Kiribati into receivership. The receiver was appointed because Charles Crovo deliberately violated the court's order to pay most of proceeds from the Tahiti litigation into a court account and instead transferred those monies to himself and to companies he owned. Since there is no evidence that Dechert knew or should have known that Charles Crovo would try to steal these funds, Crovo's wrongdoing is a superseding cause that would relieve Dechert from any liability even if it had been negligent in making the transfer in May 2010. See Bellows v. Worcester Storage Co., 297 Mass. 188, 196-97, 7 N.E.2d 588 (1937). The " faithless-agent" doctrine invoked by Kiribati is inapposite. Under that doctrine, a principle is deemed not to have notice " regarding a fraudulent act in which the agent is engaged against the principal." Lawrence Sav. Bank v. Levenson, 59 Mass.App.Ct. 699, 705-06, 797 N.E.2d 485 (2003). But whether Kiribati had notice of Charles Crovo's malfeasance is irrelevant. Crovo's attempted theft of Kiribati's funds, and his resulting failure to comply with the Washington court's order, was the proximate cause of the receiver being appointed whether Kiribati had notice of that wrongdoing or not. Either way, the undisputed facts demonstrate that Kiribati cannot prove that any negligence by Dechert was the proximate cause of the receivership order.
4.4. Recovery of Attorneys Fees
Kiribati asserts that it is entitled to recover the fees it previously paid to Dechert as damages for Dechert's alleged negligence and breach of fiduciary duty. Cf. Shimer v. Foley, Hoat & Eliot LLP, 59 Mass.App.Ct. 302, 314-15, 795 N.E.2d 599 (2003) (prior fees may be sought as damages in legal malpractice case at least if there is evidence that fees could have been avoided if lawyer had not committed malpractice). Kiribati also argues in the alternative that Dechert's alleged negligence and breach of fiduciary duty defeat any right of Dechert to recover the attorneys fees that Kiribati previously paid to it.
For the reasons discussed above, however, Kiribati's remaining claims for negligence and breach of fiduciary duty all fail as a matter of law. Dechert is therefore entitled to summary judgment in its favor on the claim to recover past attorneys fees as well. As a result, there is no need for the Court to decide whether the prior decision by the Chairman of the Paris Bar that Dechert was entitled to payment of the disputed attorneys fees has res judicata or collateral estoppel effect that would independently bar Kiribati's claim in this action to recoup the fees it has already paid to Dechert.
The Court notes that if Kiribati had a viable claim to recover attorneys fees paid to Dechert, which it does not, that claim would be limited to the $540,000 in fees that Kiribati paid to Dechert, and could not include the prior $340,000 in payments made to Coudert Frères. The undisputed facts show that Dechert never merged with and never assumed any liabilities of Coudert. And Kiribati has presented no evidence that Dechert and Coudert are jointly and severally liable for the same negligence or for causing the same damage.
4.5. Punitive Damages
Kiribati's claim for punitive damages fails for the same reason. Since Dechert it entitled to judgment in its favor as a matter of law on all remaining claims, Kiribati is not entitled to recover damages of any kind.
In addition, Kiribati's oral stipulation that its claims are all governed by Massachusetts law necessarily means that it is not entitled to collect punitive damages. " Under Massachusetts law, punitive damages may be awarded only where authorized by statute." Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 412, 995 N.E.2d 740 (2013). Kiribati makes no claim or argument that it is entitled to recover punitive damages under Massachusetts law, now that it has dismissed its claim under G.L.c. 93A with prejudice. Instead it asserts that it may recover punitive damages under Pennsylvania law because Dechert is headquartered in Philadelphia. Since Kiribati's punitive damages claim is based solely on Pennsylvania law, Kiribati's stipulation that Massachusetts and not Pennsylvania law governs this case dooms its punitive damages claim. See Jackson v. Anthony, 282 Mass. 540, 546, 185 N.E. 389 (1933) (under Massachusetts choice of law rules, any claim for punitive damages is governed by law of jurisdiction whose substantive law applies); accord Restatement (Second) of Conflict of Laws § 171 & comment d (1971) (law that governs claim under choice of law principles also " determines the measure of damages, " including exemplary or punitive damages).
ORDER
The motion by Dechert LLP for summary judgment in its favor on all claims is ALLOWED. Dechert's motions to strike the affidavit of John Leubsdorf and to strike portions of the affidavits of Nicholas Coscia and John Neeleman are both ALLOWED. The cross motion by Kiribati Seafood Company LLC for partial summary judgment with respect to Dechert's alleged liability for loss of the Lloyd's subrogation interest is DENIED. Final judgment shall enter in Dechert's favor dismissing all claims with prejudice.