HC&D, LLC v. Cashman Equipment Corp. et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HC&D, LLC,
Plaintiff,
v.
CASHMAN EQUIPMENT CORP.,
Defendant.
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Civil Action No. 22-cv-10224-ADB
MEMORANDUM AND ORDER
BURROUGHS, D.J.
Before the Court is Defendant Cashman Equipment Corporation’s (“Cashman’s”) motion
for summary judgment, [ECF No. 72]. For the following reasons, the motion is DENIED.
I. 	BACKGROUND
A. 	Facts1
HC&D, LLC (“HC&D”) is a Hawaiʻi limited liability company. [ECF No. 4 (“Am.
Compl.”) ¶ 1]; accord [ECF No. 77-13 (“P&S”) at 1]. Cashman is a Massachusetts corporation.
[Am. Compl. ¶ 2]; accord [P&S at 1].
1 As required by Local Rule 56.1, Cashman filed a statement of undisputed material facts, [ECF
No. 74], and HC&D responded with a statement of disputed material facts and a supplemental
statement of purportedly undisputed material facts, [ECF No. 78]. Because these filings have
barely narrowed the factual dispute before the Court, the Court relies extensively on the record
evidence appended to the parties’ summary judgment memoranda.
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On September 10, 2020, Cashman accepted a conditional offer by HC&D to purchase a
barge called the JMC 254. [ECF No. 77-12 (“Offer to Purchase”)]. The Offer to Purchase
specified a price of $1.9 million and provided that the transaction would close by September 20,
2020, until which time a third party would hold a “10% refundable deposit.” [Id. at 1]. The
offer was made “as is where is [s]ubject to a certified marine survey to be p[er]formed on or
before September 14, 2020.” [Id.]. A purchase agreement was to be executed following
acceptance of the offer. [Id.]. Prior to making the offer, HC&D had received minimal
information about the barge—namely, a condition and valuation report from 2017 and a
statement by Cashman that the barge had recently undergone certain repairs. [ECF No. 73-3];
[ECF No. 73-4].
Over the following weeks, the parties engaged in ongoing communications, which
apparently occurred mostly by telephone, see, e.g., [ECF No. 77-1 at 12–13], and were not well-
documented, at least not in the deposition excerpts attached to the parties’ summary judgment
motions. Nonetheless, the following points are evident. On September 11, 2020, at Cashman’s
request, two marine surveyors conducted a certified condition and valuation survey of the JMC
254, [ECF No. 77-3 (“NVI Survey”)], which was then provided to HC&D by its third-party
broker, Rod Tomkins,2 who was functioning as the main point of contact between the two
parties. See [ECF No. 77-24 at 2–3 (Cashman providing the survey to Tomkins)]; [ECF No. 77-
16 at 1 (HC&D discussing the survey with Tomkins)]. Tomkins followed up with Cashman to
request a gauging report that would indicate the steel depth at various parts of the barge, see
[ECF No. 77-24 at 2], and Cashman provided Tomkins with a gauging report bearing Cashman’s
2 HC&D had previously hired Tomkins to help it sell a different barge and planned to pay
Tomkins a commission if he successfully found a replacement. [ECF No. 73-1 at 4–5].
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logo, which had been performed in 2019 by Precision NDT & Consulting (“Precision”). [ECF
No. 73-8 at 1–2]; [ECF No. 77-18 (“Precision Gauging Report”)]. After reading the 2020
condition and valuation survey, HC&D asked Tomkins about water that was present in many of
the barge’s compartments and about a note that the barge was currently under repair. [ECF No.
77-16 at 1]. Tomkins, allegedly relying on information provided by Cashman, see [id.], assured
HC&D that the water was just from rain and that the repairs were simply outfitting the boat to
pass through the Panama Canal. [Id.].
On September 28, 2020, the parties executed a final purchase and sale agreement (the
“P&S”), wherein HC&D agreed to pay $1.9 million for the JMC 254. [P&S ¶ 1]. The P&S
provided:
The [JMC 254] is being sold and purchased, in its absolute current condition, AS
IS-WHERE IS, without any warranties, or representations, express or implied, as
to its condition, merchantability, fitness for any particular purpose, seaworthiness,
or qualification for classifications or certification. 	Other than the warranty of
title . . . , any warranties and/or representation . . . either express o[r] implied are
explicitly disclaimed by the Buyer and disavowed by the Seller.
[P&S ¶ 4]. HC&D later found out that the barge was in very poor condition, requiring more than
$2 million in repairs. See [ECF No. 77-27 (showing water entering the barge from a hole in the
hull)]; [ECF No. 77-26 (describing repairs needed)]; [ECF No. 77-31 ¶¶ 7, 15 (assisting HC&D
in obtaining a price quote for repairs)]; [ECF No. 77-29 (presenting a price quote)]. HC&D now
alleges that it relied on fraudulent representations by Cashman in deciding to purchase the barge.
See [Am. Compl. ¶¶ 92–119].
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B. 	Procedural History
HC&D filed its original Complaint on February 10, 2022,3 [ECF No. 1], and then the
operative Amended Complaint on April 5, 2022, [Am. Compl.]. The Amended Complaint
named both Cashman and Precision as defendants. See [id. at 1]. On May 13, 2022, Cashman
moved to dismiss for failure to state a claim, [ECF No. 9], which HC&D opposed, [ECF No. 13],
and on August 11, 2022, Precision moved to dismiss for lack of personal jurisdiction, [ECF No.
20]. On September 21, 2022, Plaintiff moved to stay Precision’s motion to dismiss and to
transfer the entire case to the Western District of Louisiana. [ECF Nos. 25, 27]. Precision and
Cashman both opposed the motion to transfer. [ECF Nos. 29, 30]. After a motion hearing and
several supplemental filings, [ECF Nos. 38–43], the Court ultimately severed and transferred
HC&D’s claims against Precision while retaining jurisdiction over HC&D’s claims against
Cashman. [ECF Nos. 45, 46].
On November 14, 2023, Cashman renewed its motion to dismiss for failure to state a
claim. [ECF No. 52]. Plaintiff opposed the motion on November 29, 2023, [ECF No. 55], and
Cashman filed a reply on January 5, 2024, [ECF No. 58]. The case was subsequently reassigned
to this session on October 4, 2024. [ECF No. 61]. On October 30, 2024, the Court partially
granted Cashman’s motion to dismiss, permitting only HC&D’s fraud and fraudulent inducement
claims to continue, see [ECF No. 62 at 1, 16]. Following the close of discovery, see [ECF Nos.
67, 68, 71], Cashman filed the instant motion for summary judgment, [ECF No. 72]. HC&D
opposed on October 17, 2025, [ECF No. 77], and Cashman replied on November 7, 2025, [ECF
No. 81 (“Reply”)].
3 The case was initially assigned to another session of this Court.
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II. 	LEGAL STANDARD
Summary judgment is appropriate where “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 fact is material if “its existence or nonexistence has the potential to change
the outcome of the suit,” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)
(citing Martínez v. Colón, 54 F.3d 980, 984 (1st Cir. 1995)), and it is genuinely disputed if “the
evidence of record permits a rational factfinder to resolve it in favor of either party,” id. at 4–5
(citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). “[T]he
moving party must direct [the Court] to specific evidence in the record that would be admissible
at trial,” Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015), and show that the
evidence either “negates an essential element of the non-moving party’s claim,” id. (quoting
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)), or “demonstrate[s] that the non-moving
party will be unable to carry its burden of persuasion at trial,” id. at 5 (quoting Carmona, 215
F.3d at 132). Once the moving party has identified such evidence, the burden shifts to the party
opposing summary judgment to “demonstrate that a trier of fact could reasonably resolve [each
issue on which she would bear the burden of proof at trial] in her favor.” Borges, 605 F.3d at 5
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The Court reviews “the entire record in the light most hospitable to the party opposing
summary judgment,” Podiatrist Ass’n v. La Cruz Azul de P.R., Inc., 332 F.3d 6, 13 (1st Cir.
2003) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)), and draws all
inferences “in the light most favorable to the party opposing the motion,” Oleskey ex rel.
Boumediene v. U.S. Dep’t of Def., 658 F. Supp. 2d 288, 294 (D. Mass. 2009) (quoting Founding
Church of Scientology of Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir.
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1979)), but it will not credit “conclusory allegations, improbable inferences, [or] unsupported
speculation.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (quoting Medina-
Muñoz, 896 F.2d at 8).
III. 	ANALYSIS
The elements of fraud and fraudulent inducement under Massachusetts law4 are the same.
See Katz v. Belveron Real Estate Partners, LLC, 28 F.4th 300, 310 (1st Cir. 2022) (citing United
States v. President & Fellows of Harvard Coll., 323 F. Supp. 2d 151, 199 (D. Mass. 2004)). To
prevail at trial, HC&D must show (1) a knowingly false representation by Cashman, (2) made
with the intent to deceive HC&D, (3) concerning a material fact, (4) on which HC&D reasonably
relied, and (5) which resulted in injury to HC&D. See id. (quoting Harvard, 323 F. Supp. 2d at
199). HC&D must allege the false representation with “particularity,” Fed. R. Civ. P. 9(b),
meaning that the “who, what, where, and when” must be precisely stated. Alt. Sys. Concepts,
Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004).
A. 	Alleged Misrepresentations by Cashman
The Court first clarifies which representations are at issue. The Court noted three alleged
misrepresentations pleaded with specificity at the motion to dismiss stage, see [ECF No. 62 at 8],
and HC&D has now introduced some evidence of each of them. First, on September 11, 2020,
Cashman represented that it had recently renewed the barge’s five-year certification and
4 The Court notes that the parties have litigated this case under Massachusetts law from the
outset, and where “all parties indicate, at least implicitly, that [certain] law controls, and they
have briefed and argued the [instant issue] on that basis,” courts in the First Circuit “abide by the
parties’ choice” provided that it is plausible, though it may not be correct. Lluberes v.
Uncommon Prods., LLC, 663 F.3d 6, 23 (1st Cir. 2011). Accordingly, the Court will apply
Massachusetts law to this action.
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addressed any related maintenance issues. See [ECF No. 77-24 at 2]. Second, on September 14,
2020, Cashman provided the Precision Gauging Report to HC&D, which contained
representations about the barge’s steel wastage and other measurements. See [Precision Gauging
Report]; [ECF No. 73-8 at 1–2]. And third, on September 17, 2020, Cashman may have
represented that water observed in the hull, which had been noted in the Condition and Valuation
Survey conducted on September 11, 2020, see [ECF No. 77-16 at 1]; [NVI Survey], was “rain
water from [a] tank inspection,” see [ECF No. 77-16 at 1].5 The Court analyzes these three
representations as the specific bases for Cashman’s fraud claim and considers whether they
satisfy the elements of fraud under Massachusetts law.
B. 	Knowingly False Representations
Drawing all reasonable inferences in HC&D’s favor, the record shows a genuine dispute
as to whether each of these alleged representations was knowingly false. There is a genuine
dispute concerning whether the statements were truthful. With regards to the water in the hull,
one witness testified that while the JMC 254 was under Cashman’s ownership, it was regularly
ballasted, including with brackish water, [ECF No. 77-11 at 13], suggesting one possible
alternative source of the water discussed by the parties, and HC&D has filed a video showing a
leak in the hull, [ECF No. 77-27], indicating another possible source. As to the five-year
certification and related maintenance issues, another witness testified that Cashman’s statements
about the barge’s condition and five-year certification did not appear compatible with the actual
5 Cashman disputes making this statement, see [Reply at 3–4], and the evidence in the record
only shows an email in which Tomkins writes to HC&D: “As discussed . . . reply to your 3
questions[:] . . . Water is rain water from tank inspection.” [ECF No. 77-16 at 1]. Nonetheless,
the Tomkins email provides circumstantial evidence that Cashman told Tomkins the water was
from a tank inspection.
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condition that the barge was in when it arrived in Long Beach. [ECF No. 77-2 at 21]; see also
[id. at 16 (“I can’t reconcile it. I have no way of reconciling . . . those reports to what I saw.”)].
Finally, regarding the Precision Gauging Report, a witness stated that based on his experience
working with similar barges and surveys, “it is not physically possible for the Precision Gauging
Report to be accurate given the physical condition of the [barge].” [ECF No. 77-31 ¶ 12].
Though Cashman has provided its own evidence against these conclusions, HC&D has provided
enough evidence to survive summary judgment on the falsity of Cashman’s representations.
There is also a triable issue as to whether Cashman’s alleged misrepresentations were
knowing. In the motion before the Court, Cashman does not dispute that the source of water in
the barge and information about the barge’s certification and repair history were knowable, but it
does argue that it did not in fact know the Precision Gauging Report was inaccurate.
Specifically, it argues that it could not have known about the report’s accuracy because it was
created by a third party, Precision, under supervision of the American Bureau of Shipping, and
because it concerned a technical subject that was outside of the experience of Cashman’s
employees. See [Reply at 4–6]; [ECF No. 73-10 at 2–3 (describing how a gauging report is
conducted)]; [ECF No. 77-4 at 3–4 (same)]. HC&D has introduced evidence that at least two
members of the maritime industry knew, from only a visual inspection of the physical condition
of the JMC 254, that the Precision Gauging Report could not have been accurate, and this
evidence is sufficient to prevent summary judgment from issuing to Cashman on this point. See
[ECF No. 77-31 ¶¶ 11–14]; [ECF No. 77-2 at 8–11]. By analogy to the automotive context,
certain conclusions that a car mechanic might draw can be disproven by a layperson on a simple
visual inspection, while others might require considerable expertise or even tools to disprove.
Here, the extent of Cashman’s experience in the industry, the technical knowledge that it should
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have had, and whether it would have known from that experience that the gauging report was
inaccurate are all questions of fact properly resolved at trial.
C. 	Intent to Deceive
Subjective intent is a fact-intensive inquiry, and if a factfinder concluded—as it might,
per the Court’s analysis elsewhere in this Order—that Cashman knowingly shared inaccurate
information with HC&D, it could also infer from the circumstances that Cashman did so with an
intent to deceive HC&D. Cf. Sullivan v. John Hancock Mut. Life Ins. Co., 174 N.E.2d 771, 774
(Mass. 1961) (“The issue of intent to deceive was properly left to the jury.”). Accordingly,
Cashman has not shown that it is entitled to summary judgment on this point.
D. 	Materiality
HC&D has shown at least a triable issue as to whether each one of Cashman’s alleged
misrepresentations concerned facts material to HC&D’s decision to purchase the barge. E.g.,
[ECF No. 77-1 at 18–20 (discussing factors HC&D considered in purchasing the barge)].
E. 	Reasonable Reliance
The reasonableness of HC&D’s reliance turns on (1) whether HC&D was bound to
purchase the barge by its initial Offer to Purchase or only by the final P&S, and (2) whether
HC&D’s alleged reliance on Cashman’s representations would have been reasonable under the
terms of whichever agreement bound it to purchase the barge.
1. 	The Offer to Purchase
Cashman contends that HC&D’s Offer to Purchase created a binding contract. [ECF No.
73 (“Cashman Mem.”) at 10 (first citing McCarthy v. Tobin, 706 N.E.2d 629, 631 (Mass. 1999);
and then citing Battle v. Howard, 185 N.E.3d 1, 11 (Mass. 2022))]. HC&D responds that the
Offer to Purchase was merely a statement of the parties’ shared intent to seek an agreement and
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did not bind them. [ECF No. 77 (“HC&D Mem.”) at 7–8]. The Court agrees with Cashman that
under Massachusetts law, the Offer to Purchase created a binding agreement.
An accepted offer to purchase is binding if the parties intend it to be. See McCarthy, 706
N.E.2d at 631 (first citing Schwanbeck v. Federal-Mogul Corp., 592 N.E.2d 1289, 1292 (Mass.
1992); and then citing Levenson v. L.M.I. Realty Corp., 575 N.E.2d 370, 372 (Mass. App. Ct.
1991)).6 The parties’ intent is determined in reference to their objective manifestations. See
Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 864 N.E.2d 518, 532 n.35
(Mass. App. Ct. 2007); accord Armstrong v. White Winston Select Asset Funds, LLC, 648 F.
Supp. 3d 230, 247 (D. Mass. 2022). If an accepted offer to purchase includes all material terms
or leaves open only terms that are customarily resolved according to established norms,
Massachusetts courts will infer that the parties intended to be bound and enforce the agreement
accordingly. See McCarthy, 706 N.E.2d at 631–32.
Here, the Offer to Purchase contained all material terms. The parties agreed on a
purchase price, a closing date, an “as is where is” clause that would resolve any outstanding
disputes related to the fitness for use and location of the barge, and two conditions: (1) the
performance of a satisfactory certified marine survey, and (2) the barge being free and clear of
all encumbrances. [Offer to Purchase at 1]. HC&D maintains that the Offer to Purchase did not
6 HC&D asserts that McCarthy has only ever been applied to contracts for real property.
[HC&D Mem. at 8]. Although Massachusetts courts occasionally distinguish between types of
property in the context of contracts, they only do so where a distinction between different kinds
of property, such as in contracting practice or intrinsic characteristics, would affect the legal
analysis. E.g., Lyman v. Lanser, 231 N.E.3d 358, 365–66 (Mass. App. Ct. 2024) (noting that the
adequacy and availability of certain remedies may depend on “the character of the property,” id.
at 365 (quoting Jones v. Newhall, 115 Mass. 244, 248 (1874))). HC&D has not identified, nor
has the Court found, any distinction between real and personal property that would limit the
application of McCarthy’s holding to the facts of this case.
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expressly state that it created binding obligations, [Offer to Purchase at 1], but the standard under
Massachusetts law is the opposite: an offer that contains all material terms must expressly state
that it does not create a binding agreement to avoid doing so. See McCarthy, 706 N.E.2d at 632
n.3. HC&D also argues that the Court should distinguish McCarthy because “the parties here
never represented that time was of the essence and did in fact execute a [purchase agreement],”
unlike the parties in that case. [HC&D Mem. at 8]. The Court disagrees. The inference that two
parties intended to be bound by an agreement is not affected by their decision to leave out a
particular term, such as a time-is-of-the-essence clause, nor by their subsequent compliance with
the terms of the agreement. What matters is whether the agreement contains all material terms,
and HC&D does not assert that any material terms were missing from the Offer to Purchase. See
[HC&D Mem. at 7–9]. As a written offer containing all material terms, the accepted Offer to
Purchase evinced the parties’ objective intent to be bound and thus created a binding contract.
Nevertheless, HC&D did retain a limited right to walk away from the agreement under
the following provision: “This offer is ‘as is where is’ [s]ubject to a certified marine survey to be
p[er]formed on or before September 14, 2020,” [Offer to Purchase at 1]. “The interpretation of a
contract is a question of law for the court,” Eigerman v. Putnam Invs., Inc., 877 N.E.2d 1258,
1263 (Mass. 2007), which “must first examine the language of the contract by itself, independent
of extrinsic evidence concerning the drafting history or the intention of the parties,” Bank v.
Thermo Elemental Inc., 888 N.E.2d 897, 907 (Mass. 2008) (citing Gen. Convention of New
Jerusalem in the U.S., Inc. v. MacKenzie, 874 N.E.2d 1084, 1087 (Mass. 2007)). The Court
concludes (and the parties agree, see [HC&D Mem. at 9]; [Cashman Mem. at 4–7]) that this
provision created a condition precedent, meaning that the parties would not be bound until its
requirements were met. See Mass. Mun. Wholesale Elec. Co. v. Town of Danvers, 577 N.E.2d
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283, 288 (Mass. 1991). The Court thus turns to parsing the terms “subject to” and “certified
marine survey.”
The natural reading of the “subject to” clause is that it imposed a limit on the offer,
making clear that HC&D would only purchase the barge if a “certified marine survey” showed
that the barge was in adequate condition. The clause did not require HC&D to conduct a survey;
rather, the clause empowered HC&D to review a survey “certified” by a third party and to only
consummate the purchase upon a determination that the survey showed that the boat was in
satisfactory condition. The term “certified marine survey,” by contrast, is ambiguous. Whether
a term is ambiguous is a question of law to be decided by the Court, see Eigerman, 877 N.E.2d at
1263 (citing Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989)). Here,
the plain language of “certified marine survey” does not identify a specific test or set of tests, or
a specific reviewing body to conduct or certify the examination. Nor does the term, to the
knowledge of the Court, have a commonly accepted industry-specific meaning. HC&D
understood it to mean “[a] survey that . . . represented the seaworthiness and condition of the
vessel,” [ECF No. 77-1 at 10], while Cashman asserts that it could have referred to any one of
several surveys, see [Cashman Mem. at 4–5 (giving examples of different marine surveys)].
Accordingly, because the term is “ambiguous, uncertain, or equivocal in meaning, the intent of
the parties is a question of fact to be determined at trial,” Seaco Ins. Co. v. Barbosa, 761 N.E.2d
946, 951 (Mass. 2002).
In sum, HC&D’s Offer to Purchase created a binding agreement subject to a condition
precedent, which reserved to HC&D the right to review a “certified marine survey” and
withdraw its offer if the survey’s findings were not satisfactory. The meaning of “certified
marine survey” is a question of fact for trial. Drawing all inferences in HC&D’s favor, a
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factfinder could conclude that the clause in its entirety permitted HC&D to rely on the NVI
Survey, the Precision Gauging Report, and Cashman’s answers to the questions that HC&D
asked with regards to those materials before deciding to proceed with the purchase.
2. 	The P&S
After HC&D reviewed the materials provided by Cashman, the parties executed the P&S,
which Cashman argues expressly disclaimed any representations on which HC&D may have
relied. Section Four of the P&S provides:
The said Vessel is being sold and purchased, in its absolute current condition, AS
IS-WHERE IS, without any warranties, or representations, express or implied, as
to its condition, merchantability, fitness for any particular purpose, seaworthiness,
or qualification for classifications or certification. Other than the warranty of title
contained in Paragraph 5 below, any warranties and/or representation (as the case
may be) either express o[r] implied are explicitly disclaimed by [HC&D] and
disavowed by [Cashman].
[P&S ¶ 4]. Cashman contends that this provision renders any reliance by HC&D on Cashman’s
alleged prior misrepresentations “contradict[ory] [to] the terms of the parties’ agreement,” in
which case it would be “unreasonable as a matter of law.” HSBC Realty Credit Corp. (USA) v.
O’Neill, 745 F. 3d 564, 571 (1st Cir. 2014); see [Cashman Mem. at 16–18]. The Court rejected
this argument at the motion to dismiss stage, see [ECF No. 62 at 10 & n.5], and reaches the same
conclusion here.
As the Court previously explained, in order for a party’s reliance on prior representations
to be unreasonable in light of a subsequent contractual provision, the provision must be
“specifically addressed [to] the particular point at issue,” HSBC, 745 F.3d at 573 (quoting Starr
v. Fordham, 648 N.E.2d 1261, 1268 (Mass. 1995)), and “directly contradictory to the
complained-of misrepresentations.” Id. Cashman argues that the language of Section Four
satisfies this standard, because it refers to specific characteristics, such as the vessel’s
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“seaworthiness” and “qualification for classifications or certification,” distinguishing it from a
“generic” disclaimer. [Cashman Mem. at 17]. The Court disagrees. HC&D alleges that
Cashman falsely represented (1) the origin of water on the barge’s interior, (2) the recency of the
barge’s certification and the completion of associated repairs, and (3) the amount of steel
wastage and other wear exhibited by the barge. The terms of Section Four do not “flatly
contradict[],” Turner v. Johnson & Johnson, 809 F.2d 90, 96 (1st Cir. 1986), any of those alleged
representations by Cashman, nor do they particularly disclaim HC&D’s reliance on those
representations, so Section Four does not bar HC&D from asserting that its reliance on
Cashman’s representations was reasonable.
3. 	Injury
The record is clear that HC&D was injured by the barge’s subsequent failure. E.g., [ECF
No. 77-29 (providing price quotes for repairs to the barge)].
IV. 	Cashman’s Affirmative Defenses
In its memorandum opposing Cashman’s motion for summary judgment, HC&D briefly
argues that the Court should grant summary judgment to HC&D on Cashman’s affirmative
defenses. [HC&D Mem. at 19–20]. HC&D has not filed its own motion for summary judgment.
While courts may grant summary judgment sua sponte once discovery has reached a
“sufficiently advanced” stage, they may only do so if the party against whom summary judgment
would be granted has had “appropriate notice and a chance to present its evidence on the
essential elements of the . . . defense.” Berkovitz v. Home Box Office, 89 F.3d 24, 29 (1st Cir.
1996). In the present procedural posture, the Court concludes that Cashman has not received
such a chance, and declines to grant summary judgment to HC&D on Cashman’s affirmative
defenses.
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V. 	CONCLUSION
For the above reasons, Cashman’s motion for summary judgment is DENIED.
SO ORDERED.
January 29, 2026 	/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE
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