REPORT AND RECOMMENDATION ON THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT

[Dkt. Nos. 98, 102]

JENNIFER C. BOAL, Magistrate Judge.

Plaintiff Starbrands Capital LLC d/b/a Norcal Health Care Services ("Starbrands") brings this action against defendant Original MW Inc. ("MW") for breach of contract. Specifically, Starbrands alleges MW breached its contract with Starbrands when it failed to indemnify Starbrands for losses suffered as a result of MW's gross negligence. Both parties have moved for summary judgment. Dkt. Nos. 98, 102. For the reasons set forth below, the Court recommends that the District Judge assigned to this case deny Starbrands' motion and grant MW's motion.1

I. PROCEDURAL HISTORY

Starbrands filed the instant action on May 23, 2014. Dkt. No. 1. In its Amended Complaint, Starbrands alleged a violation of Article 4A of the Massachusetts Uniform Commercial Code ("UCC"), breach of contract, and negligence. Dkt. No. 20 ("Amended Complaint" or "Am. Compl."). On September 11, 2015, Judge Burroughs adopted this Court's recommendation and dismissed Starbrands' UCC and negligence claims. Dkt. No. 49. On October 9, 2015, MW filed a second motion to dismiss. Dkt. No. 54. On March 9, 2016, Judge Burroughs adopted this Court's recommendation that the motion be denied. Dkt. No. 90.

The parties filed cross motions for summary judgment on May 9, 2016. Dkt. Nos. 98, 102. Starbrands and MW filed their respective oppositions on June 9, 2016 and reply briefs on June 23, 2016. Dkt. Nos. 106, 109, 112, 113. The Court heard oral argument on October 26, 2016.

II. FACTS2

A. Relevant Parties

At all times relevant to this action, MW was an independent sales organization for First Data Merchant Services Corporation ("First Data").3 As an independent sales organization, MW acquired and entered into contracts whereby First Data would provide credit card payment processing services.4 MW's role, in relevant part, was to obtain merchants, have them fill out paperwork, and send the information to First Data for ultimate approval.5

Starbrands Capital LLC and Starbrands Norcal MSO, LLC are limited liability companies that are owned by Omar Salah, and share a business address with Salah's personal residence in Los Angeles, California.6 Starbrands registered "Norcal Healthcare Services"7 with the Alameda County recorder's office and was doing business under that name between December 22, 2009 and December 22, 2014.8

Norcal Health Care, Inc. ("NHCI") operates medical clinics throughout the state of California.9 Dr. Michael Caplan began working at the NHCI clinics in or around November-December 2009, and assumed ownership of NHCI from its former owner, Dr. Philip A. Denney, in or around April-June 2010.10

The Library, Inc. is an accounting firm that serviced the clinics, Starbrands, and Salah, individually.11 Library employee Ariadne Shaffer served as Salah's financial manager and Alexis Garcia served as Shaffer's assistant.12 Starbrands' counsel described Shaffer as a "c-level executive of Starbrands" who "managed its financial affairs and oversaw execution of its payment systems" and was "directly involved in every facet of its financial affairs."13

B. Starbrands And NHCI: The ARMSA

On December 1, 2010 (effective May 1, 2010), NHCI and Starbrands Norcal MSO entered into an Amended and Restated Management Services Agreement ("ARMSA").14 See Dkt. No. 100-12. Salah signed the ARMSA.15 The ARMSA contains the following provisions:

See Dkt. No. 100-12. The ARMSA also provided that NHCI could pay Starbrands a bonus in addition to the management fee.16

On December 1, 2010 (effective May 1, 2010), NHCI and Starbrands Norcal MSO entered into a modification to the ARMSA, which reduced the management fee to $20,000 per month.17 See Dkt. No. 100-14 ("ARMSA Modification"). Salah also signed the ARMSA Modification.18 Starbrands received $265,000 in management fees and approximately $95,710 in bonuses between December 2010 and October 2012.19

C. Starbrands And MW: The Merchant Account

On or about January 11, 2010, MW received a Merchant Processing Application and Agreement on behalf of "NorCal Health Care Services."20 See Dkt. No. 100-16 ("Merchant Application"). The Merchant Application lists Salah as the contact name and owner, and his name also appears on the signature block.21 In addition, the application contains the contact email address "Christina@Star-Brands.com," which belongs to Christina Preda, Salah's "number two" employee.22 Finally, the Merchant Application lists Starbrands' unique tax identification number ending in 2092 and designates a Chase Bank account ending in 0987 ("Chase Account") as the settlement bank account.23

Preda prepared and signed the Merchant Application on behalf of Salah, who testified that he did not review, prepare, or sign it.24 Salah also testified that it was within Preda's purview to set up the account and that he instructed Preda to "take care of all th[e] business" associated with the account.25

The Merchant Application incorporates a Merchant Services Program Guide.26 See Dkt. No. 100-17 ("Program Guide"). The Program Guide contains an indemnification clause wherein MW agreed to indemnify Starbrands for certain losses. Specifically, the indemnification clause states:

Dkt. No. 100-17 at 19.27 The Program Guide also provides, in relevant part:

Dkt. No. 100-17 at 16.

After receiving the Merchant Application, MW opened a merchant account and assigned it an ID number of 535353120140686 ("Merchant Account").28

D. Merchant Account Change Requests

1. The March 15, 2010 Change Request

On February 18, 2010, Shaffer, Preda, and Salah exchanged emails in which Shaffer stated that "[a]ll income is supposed to go into the Dr. Denney Account and then be transferred into the Norcal Healthcare account on a regular basis. . . . we need to start the process of moving all the credit card terminals over to the Dr. Denney account as well."29 In or around March 13, 2010, Dr. Denney set up the Bank of the West Account.30 Upon doing so, Dr. Denney emailed Salah on March 13, 2010 and informed him about the account, which had been opened under NHCI, and of his intention to "transfer the funds from Chase and close the account when appropriate."31 See Dkt. No. 100-20 at 4.

On or about March 15, 2010, Preda submitted a FACS FDMS ABA/DDA Change Request to MW.32 See Dkt. No. 100-19 ("March 15 Change Request"). The March 15 Change Request was signed by Preda, who is identified as "Chief of Staff" of Norcal Healthcare Services, and designates a Bank of the West account ending in 6826 ("Bank of the West Account") as the settlement bank account.33 The March 15 Change Request includes a voided check for the Bank of the West Account and identifies NHCI as the account holder at the bank.34 MW processed the March 15 Change Request and confirmed that the bank change was set on March 18, 2010.35

2. The June 3, 2010 Change Request

On or around June 3, 2010, MW received a second change request signed by Dr. Caplan and listing NHCI as the merchant name.36 See Dkt. No. 100-22 ("June 3 Change Request"). The June 3 Change Request designated the settlement bank account as a Morgan Stanley account ending in 0979 ("Morgan Stanley Account") that belonged to NHCI.37 An attached letter listed Shaffer, Salah's financial manager, as the client contact.38 MW asserts that the June 3 Change Request was never effectuated.39

3. The June 22, 2010 Change Request

On or around June 22, 2010, MW received a third change request in connection with the Merchant Account.40 See Dkt. No. 100-24 ("June 22 Change Request"). The June 22 Change Request lists the merchant as NHCI and Dr. Caplan as the "owner."41 The Bank of the West Account (previously identified in the March 15 Change Request) was listed as the settlement account.42 The June 22 Change Request also included a voided check for the Bank of the West account, which identified the account holder as NHCI.43 None of the following appear on the June 22 Change Request: Salah's name and/or signature, Starbrands' tax identification number, or Norcal Healthcare Services.44

On June 24, 2010, MW employee Lilit Zakaryan emailed Salah's accounting firm to confirm that she received the June 22, 2010 bank change form.45 On June 29, 2010, Shaffer's assistant inquired as to the status of the switch and Zakaryan confirmed that "the bank change ha[d] been completed."46 On July 1, 2010, Zakaryan informed Salah's accounting firm that the funds would be deposited into the Bank of the West Account by July 2.47 On July 1, 2010, Garcia responded that they had received the "Amex Deposits."48 Salah testified that he knew as of July 2010 that no credit card revenue from the clinics was being deposited into the Chase Account.49

From on or about March 18, 2010 through October 2012 (when the Merchant Account was closed), all patient revenue generated from credit card payments at the clinics serviced by MW was deposited into the Bank of the West Account.50 The Bank of the West Account served as the general account for the clinics and was used to pay clinic expenses, payroll, and management fees under the ARMSA.51

On November 23, 2010, Salah's accountants informed him that payroll was being paid out of the Chase Account and that funds were sent to the account from the Bank of the West Account when they were authorized by Dr. Caplan.52 On November 21, 2011, Salah's accountants informed him that the Chase account was an "old account" that was no longer in use and Saleh responded that he would close the bank account himself.53

Salah did not contact MW about any discrepancy in the Chase Account until on or about August 6, 2012.54 Throughout August and September 2012, Salah sought a full reversal of funds he claimed were not deposited into his Chase Account.55 MW explained to Salah that no reversals would be issued because the funds were deposited into the Bank of the West Account and that Salah would have to seek the missing funds directly from the holder of that account.56 MW also stated that there would be no reversals because of an earlier bank change submitted by Preda.57 Finally, MW alleges that it investigated Salah's concerns about the Merchant Account, and that as part of that investigation, it contacted Chase Bank and Dr. Caplan and reviewed NHCI accounts at MW as well as the timeline regarding when the change request forms were received.58

E. The California Action

In April 2012, Dr. Caplan and NHCI sued Starbrands Norcal MSO, Salah, and others, in an action captioned Norcal Health Care, Inc. et al. v. Starbrands Norcal, MSO, LLC, et al., No. RG-12623651 (Super. Ct. Cal., Alameda County).59 See Dkt. No. 100-30 ("California Action"). In that action, Dr. Caplan and NHCI alleged that Starbrands Norcal MSO and Salah breached the ARMSA by interfering in both the business activities and the provision of medical care by NHCI.60 The plaintiffs in the California Action sought a declaratory judgment that NHCI properly terminated the ARMSA, for cause, in February 2012.61 In response, Starbrands Norcal MSO filed a cross-complaint alleging, inter alia, that Dr. Caplan unlawfully excluded Starbrands from the clinics and breached the ARMSA and the ARMSA Modification by changing the account holder's name from Starbrands to NHCI and by diverting funds from Starbrands for two years.62

After the court in the California Action entered a default judgment against the defendants, it held a prove-up hearing in which Dr. Caplan and NHCI appeared, presented evidence, and rested.63 On March 26, 2015, the California court entered a judgment in favor of NHCI and against Starbrands Norcal MSO on the breach of contract claim and issued a declaration that the ARMSA was properly terminated by NHCI for cause.64 Effective August 7, 2012, the California court issued a temporary restraining order which prohibited Starbrands or Salah from, inter alia, (1) entering onto the premises of any of the clinics; (2) asserting any interest in, ownership of, or control over any clinic operated by NHCI; and (3) interfering, or seeking to interfere with the normal business operations of NHCI, including communicating with its patients, employees, contractors, or vendors.65

III. STANDARD OF REVIEW

Summary judgment is appropriate when 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 `genuine' issue is one that could be resolved in favor of either party, and a `material fact' is one that has the potential of affecting the outcome of the case." Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 855 (1st Cir. 2008) (quoting Calero-Cerezo v. United States Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).

The Court "must scrutinize the evidence in the light most agreeable to the nonmovants, who are entitled to the benefit of all reasonable inferences therefrom." Ahern v. Shinseki, 629 F.3d 49, 53-54 (1st Cir. 2010) (citing Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004)). "A properly supported summary judgment motion cannot be defeated by relying upon conclusory allegations, improbable inferences, acrimonious invective, or rank speculation." Id. (citations omitted).

"Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se." Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996). "Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Id. "Where, as here, a district court rules simultaneously on cross-motions for summary judgment, it must view each motion, separately, through this prism." Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010) (citing Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996) ("Barring special circumstances, the nisi prius court must consider each motion separately, drawing inferences against each movant in turn.")).

IV. DISCUSSION

MW moves for summary judgment with respect to the entire case. Dkt. No. 98. At oral argument, Starbrands confirmed that it moves for partial summary judgment on liability only.

A. Breach Of Contract

Starbrands claims that MW breached its contract—specifically, the Program Guide— when it declined to indemnify Starbrands for losses that allegedly arose out of MW's gross negligence. Dkt. No. 103 at 3. Starbrands further alleges that MW's actions rose to the level of gross negligence when it allowed certain unauthorized bank change requests, and when it refused to reverse the deposits and declined to indemnify Starbrands for losses that resulted from those requests. Id. at 6-12. Finally, Starbrands contends that MW was grossly negligent when it submitted a 1099K tax form falsely indicating that it had transmitted sums of money to Starbrands. Id. at 9-10.

In order to prove a breach of contract claim, the plaintiff must prove that "a valid, binding contract existed, the defendant breached the terms of the contract, and the plaintiff[] sustained damages as a result of the breach." Brooks v. AIG SunAmerica Life Assurance Co., 480 F.3d 579, 586 (1st Cir. 2007) (citation omitted). Under Massachusetts law,66 indemnity clauses "are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished." Farmers Ins. Exchange v. RNK, Inc., 632 F.3d 777, 786 (1st Cir. 2011). "It is well accepted . . . that indemnification provisions are construed in accordance with their ordinary and plain meaning and without any bias in favor of the indemnitor or against the indemnitee." Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210, 217 (1st Cir. 2006).

The indemnity clause in the Program Guide states that:

Dkt. No. 100-17 at 19 (emphasis added). Accordingly, in order to prove that MW breached Section 26.2 of the Program Guide, Starbrands must establish that its losses were caused by MW's gross negligence.

B. Gross Negligence

The long-standing definition of gross negligence in Massachusetts is set forth in Altman v. Aronson, 231 Mass. 588, 591-92 (1919); see Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 410 (2013). Altman states:

231 Mass. at 591. Gross negligence, however, falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Id.

Causation is an essential element to demonstrate gross negligence. Doe v. Cultural Care, Inc., C.A. No. 10-11426-DJC, 2011 WL 4738558, at *4 (D. Mass. Oct. 7, 2011) (citing Nna v. Am. Standard, Inc., 630 F.Supp.2d 115, 132 n. 21 (D. Mass. 2009)). Under Massachusetts law, a plaintiff must show not only that the defendant's negligent conduct was the cause-in-fact of the plaintiff's injury, but also that the conduct was the proximate or legal cause of the injury. Id. (citing Staelens v. Dobert, 318 F.3d 77, 79 (1st Cir. 2003)). To demonstrate proximate cause, a plaintiff must show that his or her injuries were within the reasonably foreseeable risks of harm created by the defendant's negligent conduct, although the precise harm need not be foreseeable. Id.

In evaluating whether a defendant's actions were grossly negligent, a court must consider the defendant's conduct as a whole, assessing every act or omission in connection with all the other circumstances. See id. at *3 (citing Driscoll v. Pagano, 313 Mass. 464, 468 (1943)). Thus, the question of whether a party's conduct was grossly negligent involves a fact-based inquiry into the circumstances of the case. Szulik v. State Street Bank & Trust Co., 935 F.Supp.2d 240, 269 (D. Mass. 2013). Although the question of whether a risk of harm was reasonably foreseeable is ordinarily a matter for the jury, summary judgment may be appropriate when the evidence and the reasonable inferences drawn therefrom lead to but one conclusion. Doe, 2011 WL 4738558, at *4 (citations omitted).

1. The Change Requests Processed By MW

The undisputed facts show that MW's decision to process the bank change requests does not meet the heightened burden necessary to prove gross negligence. In support of its claim that MW's conduct rose to the level of gross negligence, Starbrands argues "that the Bank Change Request had none of the usual indicia of authenticity and legitimacy" because the company name, the name of the authorized signor, the signatures, and the tax ID numbers did not match the information on the original Merchant Application.67 Dkt. No. 103 at 7-8 (emphasis in original). Starbrands ignores, however, the context within which MW accepted the change requests.

The circumstances of the March 15 Change Request do not indicate that MW was grossly negligent. Before receiving the June 22 Change Request, MW received the March 15 Change Request. The March 15 Change Request directed MW to move the settlement bank account to an account at the Bank of the West. MW SOF ¶ 46. Although NHCI, and not Norcal Healthcare Services, was listed as the account holder for the Bank of the West Account, Norcal Healthcare Services was still listed as the merchant name. Id. ¶¶ 45, 49. In addition, the March 15 Change Request was signed by Preda—the same person who filed the original Merchant Application. Id. ¶¶ 37, 44. Finally, MW processed the March 15 Change Request and confirmed that the change was "all set" on March 18, 2010. Id. ¶ 50.

By the time MW received the June 22 Change Request—which instructed MW to deposit funds into the same Bank of the West Account held by the same account holder (NHCI) as the March 15 Change Request—the change request had no practical effect on the movement of funds, which were already being deposited into that account. Id. ¶¶ 59-60. The June 22 Change Request did contain information that was different from the Merchant Application in that it listed the account owner as Caplan and the merchant name as NHCI. However, these discrepancies do not transform MW's conduct into gross negligence, particularly where MW was in contact with Salah's employees and accountants regarding the bank changes, and Salah's accounting firm confirmed that the funds were being deposited into the Bank of the West Account and offered no objection to the change requests. Id. ¶¶ 50, 78-81; see also Dkt. No. 100-21 at 4-5.

Finally, Starbrands further attempts to demonstrate MW's gross negligence by arguing that "MW disregarded its own protocols and industry standard[s] in authorizing an obviously bogus Bank Change Request." Dkt. No. 103 at 8. In support of this claim, Starbrands cites the testimony of Tia McConnell, Team Lead at MW, who testified that she "wouldn't have submitted the [bank change] paperwork." Id. Starbrands, however, fails to provide this Court with any further argument or evidence regarding MW's protocols or the industry standards associated with bank change requests and/or credit card payment processing services. As a result, there is no evidence in the record from which this Court could analyze MW's compliance with such protocols and standards.

After carefully analyzing the undisputed facts in the record, the Court finds that even when construing these facts in the light most favorable to Starbrands, there is no evidence of a heedless and palpable violation of legal duty by MW. Accordingly, the Court finds that MW's processing of the bank change requests does not rise to the level of conduct required to prove a claim of gross negligence.

2. MW's Failure To Indemnify Starbrands

Starbrands also argues that MW's refusal to indemnify amounts to gross negligence. MW, however, contends that Starbrands waived its right to enforce the Program Guide's indemnification provision when it failed to comply with Section 18.10 of the contract. Dkt. No. 99 at 23-24. Starbrands counters that Section 18.10 only pertains to the amount of fees owed by a merchant to MW. Dkt. No. 109 at 18-19. This Court disagrees.

Section 18.10 of the Program Guide, which is titled "Fees; Adjustments; Collections of Amounts Due" provides as follows:

Dkt. No. 100-17 at § 18.10.

A court interpreting a contract must assess whether the contract is ambiguous by examining the language of the contract by itself, independent of extrinsic evidence concerning the drafting history or the intention of the parties. Szulik, 935 F. Supp. 2d at 255 (citing Nicolaci v. Anapol, 387 F.3d 21, 26 (1st Cir. 2004)). A contract is only ambiguous where an agreement's terms are inconsistent on their face or where the phraseology can support reasonable differences of opinion as to the meaning of the words employed and obligations undertaken. Id. (citations omitted). Should the court find the contract language unambiguous, it must interpret it according to its plain terms. Id. (citations omitted). The meaning of an unambiguous contract term is a question of law, while the meaning of an ambiguous contract term is a question of fact. Id.

This Court finds that the relevant sections of the Program Guide are unambiguous. First, Section 18.10 states that Starbrands was obligated to address any adjustments it believed needed to be made to its settlement account within 45 days after any debit or credit should have been effected. See Dkt. No. 100-17 at 16. The Program Guide defines a settlement account as "an account at a financial institution designated by Client as the account to be debited and credited . . . for Card transactions, fees, Chargebacks and other amounts due under the Agreement. . . ." Id. at 23. Accordingly, the provisions of Section 18.10, including reference to the settlement account, do not, as Starbrands argues, only refer to "fees charged by MW," see Dkt. No. 109 at 18, but also include amounts debited and credited for card transactions, such as the amounts at issue here.

It is undisputed that neither Starbrands nor Salah contacted MW within 45 days to report that adjustments to the settlement account were required. MW SOF ¶ 76. In fact, despite admitting that he was aware in July 2010 that there was no credit card revenue being deposited into his Chase Account, Salah did not contact MW until more than two years later.68 Id. ¶¶ 71-72, 74-77. Moreover, MW confirmed the settlement account change with Salah's accountants in 2010 and, for the next two years, had no way of knowing Starbrands believed that the credit being deposited into that account was improper. Accordingly, given that Starbrands did not comply with its obligations under the Program Guide and that MW had no reasonable means of knowing that Starbrands believed its account was owed outstanding funds, MW's refusal to indemnify Starbrands does not amount to gross negligence.

For the reasons stated above, this Court finds that MW was neither grossly negligent in processing the bank change requests nor grossly negligent in failing to indemnify Starbrands after-the-fact.69

C. No Injury To Starbrands

MW also moves for summary judgment on the basis that there has been no breach of the ARMSA. Dkt. No. 99 at 14-19. Specifically, MW contends that pursuant to the ARMSA, revenue from the clinics did not belong in Starbrands' Chase Account, and therefore, MW did not breach the contract and Starbrands was not injured when MW failed to deposit revenue into that account. See id. Starbrands does not argue that the clinic revenue should have been distributed into the Chase Account pursuant to the ARMSA; rather, Starbrands claims that there is a genuine issue of material fact as to whether the ARMSA is enforceable as a result of unlawful coercion. Dkt. No. 109 at 19-20.

Section 3.4(e) of the ARMSA states, in relevant part:

Dkt. No. 100-12 at 10.

Starbrands argues that it "has alleged sufficient facts to support a finding of unlawful coercion." Dkt. No. 109 at 19. Starbrands, however, has failed to put before this Court any statement of material fact in support of its argument that Salah was under duress when he signed the ARMSA. The only factual statements before this Court evidencing Salah's duress claim pertain to (1) his signing of the ARMSA Modification (which is distinct from the ARMSA) and (2) affirmative defenses made to a California court. MW SOF ¶¶ 32-33, 89. Accordingly, Starbrands has not established, or even put into question in the instant action, the issue of whether Salah was under duress when he signed the ARMSA.

Indeed, the record shows that Salah is a sophisticated business man who was represented by counsel while negotiating the terms of the ARMSA. Id. ¶¶ 9-10, 20, 22-23. Moreover, Starbrands has, at times, argued for the enforceability of the ARMSA. For example, Starbrands asks this Court to recognize that it was "entitled" to certain provisions provided to it under the ARMSA (see Dkt. No. 109 at 6-7) and admits that Starbrands Norcal MSO received approximately $95,710 in bonuses between December 2010 and October 2012, which appear to have been made pursuant to Section 5.1(b) of the ARMSA (see Dkt. No. 100-15; see also ARMSA § 5.1(b)). Accordingly, there is no basis for this Court to find that there exists a genuine dispute of material fact as to the enforceability of the ARMSA and the provisions contained therein.

In addition, because Section 3.4(e) of the ARMSA unambiguously states that all funds were to be deposited into a bank account in NHCI's name and controlled exclusively by NHCI, the change requests at issue in this dispute caused MW to deposit funds into an account prescribed by the ARMSA. Thus, the undisputed facts show that MW's action—depositing funds into the Bank of the West Account rather than the Chase Account—could not have been a proximate cause of any injury to Starbrands because under the ARMSA, Starbrands was not legally entitled to have the funds deposited into the Chase Account in the first place. Accordingly, this Court finds that MW has not caused any injury to Starbrands and recommends that the District Judge grant MW's motion on this basis.

V. CONCLUSION

For the foregoing reasons, this Court recommends that the District Judge deny Starbrands' partial motion for summary judgment and grant MW's motion for summary judgment.

The parties are hereby advised that under the provisions of Rule 72(b) of the Federal Rules of Civil Procedure, any party who objects to these proposed findings and recommendations must file specific written objections thereto with the Clerk of this Court within fourteen days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made, and the basis for such objections. See Fed. R. Civ. P. 72. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Phinney v. Wentworth Douglas Hosp., 199 F.3d 1 (1st Cir. 1999); Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962 (1st Cir. 1997); Pagano v. Frank, 983 F.2d 343 (1st Cir. 1993).