JRF Coastal Enterprises, LLC v. Native Energy & Technology, Inc.

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
JRF COASTAL ENTERPRISES, LLC, 	)
d/b/a SERVPRO OF 	)
SALEM/PEABODY/MARBLEHEAD, 	)
)
Plaintiff, 	) 	Civil Action
) 	No. 24-cv-11171-PBS
v. 	)
)
NATIVE ENERGY & TECHNOLOGY, INC., 	)
)
Defendant. 	)
______________________________ 	)
MEMORANDUM AND ORDER
January 16, 2026
Saris, J.
INTRODUCTION
This 	case 	arises 	from 	a 	contract 	to 	address 	flooding 	at 	an
Internal 	Revenue 	Service 	(“IRS”) 	facility 	in 	2023. 	Defendant
Native 	Energy 	& 	Technology, 	Inc. 	(“NET”), 	the 	IRS’s 	prime
contractor, hired Plaintiff JRF Coastal Enterprises, LLC (“JRF”),
to provide mitigation and reconstruction services at the facility.
After 	the 	work 	was 	completed, 	NET 	refused 	to 	pay 	portions 	of 	the
invoices 	submitted 	by 	JRF. 	JRF, 	faced 	with 	bearing 	the 	costs 	of
the 	work 	without 	full 	compensation, 	initiated 	this 	suit 	against
NET.
Now 	before 	the 	Court 	are 	the 	parties’ 	cross-motions 	for
summary judgment and NET’s motion to strike an affidavit submitted
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by JRF. After a hearing, the Court concludes that JRF is entitled
to 	summary 	judgment 	on 	its 	breach 	of 	contract 	claim, 	except 	with
respect to one set of disputed charges over which a genuine dispute
of material fact remains. The Court further concludes that genuine
disputes 	of 	material 	fact 	remain 	with 	respect 	to 	JRF’s 	claims 	of
breach of the implied covenant of good faith and fair dealing and
violation 	of 	Massachusetts 	General 	Laws 	Chapter 	93A 	(“Chapter
93A”).
Accordingly, 	JRF’s 	motion 	for 	summary 	judgment 	(Dkt. 	38) 	is
ALLOWED 	IN 	PART 	and 	DENIED 	IN 	PART, 	and 	NET’s 	motion 	for 	summary
judgment 	(Dkt. 	46) 	is 	DENIED. 	Because 	the 	Court 	does 	not 	rely 	on
the disputed affidavit, NET’s motion to strike (Dkt. 61) is DENIED
as moot.
BACKGROUND
The 	following 	facts 	are 	undisputed 	except 	where 	stated
otherwise.
I. 	The Contract
In 	August 	2023, 	an 	IRS 	building 	in 	Andover, 	Massachusetts,
flooded 	several 	times. 	On 	August 	8, 	2023, 	the 	IRS 	contacted 	NET
(the prime contractor for maintenance at the building) and provided
NET’s project manager, Kevin Cheney, with a list of companies that
could 	provide 	emergency 	mitigation 	and 	reconstruction 	services.
Cheney selected JRF and, later the same day, Joseph Turnbull, JRF’s
general manager, arrived on scene. Turnbull inspected the building
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and asked Cheney to sign a Commercial Emergency Work Authorization
Contract 	(the 	“Emergency 	Contract”). 	Cheney 	signed 	the 	Emergency
Contract. The Emergency Contract incorporated by reference a Time
and Materials rate sheet, which was executed by both parties.
The Emergency Contract provided that NET was “responsible for
payment to [JRF] of the full costs included in the scope of work.”
Dkt. 	42-1 	at 	2 	(emphasis 	omitted). 	When 	it 	signed 	the 	Emergency
Contract, 	NET 	intended 	to 	compensate 	JRF 	on 	a 	“pay-when-paid”
basis, 	i.e., 	to 	pay 	amounts 	owed 	to 	JRF 	only 	after 	the 	IRS 	first
paid 	those 	amounts 	to 	NET. 	The 	parties 	dispute 	whether 	Cheney
informed 	Turnbull 	of 	this 	intention. 	The 	Emergency 	Contract 	did
not 	include 	any 	language 	discussing 	a 	pay-when-paid 	arrangement,
and the Time and Materials sheet required NET to pay all invoices
to which it did not clearly object in writing within 30 days:
All 	invoices 	are 	due 	and 	payable 	upon 	receipt 	and 	will
be 	deemed 	late 	30 	days 	after 	receipt. 	If 	there 	are 	any
disputed charges on any invoices, these must be clearly
identified 	in 	writing 	within 	30 	days 	of 	receipt 	of
invoice; 	provided, 	however, 	that 	any 	amounts 	not
disputed 	in 	good 	faith 	must 	be 	paid 	within 	30 	days 	of
receipt of invoice.
Dkt. 42-2 at 14.
II. 	JRF’s Mitigation and Reconstruction Work
JRF immediately began work on the property on August 8, 2023.
On 	August 	10, 	Turnbull 	sent 	NET 	price 	estimates 	for 	flood
mitigation and reconstruction work. Mitigation work was to consist
of 	removal 	of 	damaged 	material 	and 	draining 	and 	drying 	of 	water
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from 	the 	building. 	Reconstruction 	work 	was 	to 	follow, 	involving
installation 	of 	new 	drywall, 	painting, 	reflooring, 	and 	other
replacements.
Turnbull’s 	price 	estimates 	used 	the 	prevailing 	wage 	to
calculate labor expenses, and he told NET that JRF was paying its
employees 	Davis-Bacon 	wages.1 	NET 	accepted 	these 	estimates 	and
increased 	the 	price 	ceiling 	in 	its 	contract 	with 	the 	IRS.
Throughout August, Turnbull sent NET and the IRS updated costs for
the project, which were above the original estimates.
JRF completed the mitigation work by September 19, 2023, and
substantially 	completed 	the 	reconstruction 	work 	by 	September 	29,
2023. In the fall of 2023, JRF submitted initial invoices for the
mitigation 	and 	reconstruction 	work. 	On 	October 	2, 	2023, 	Erick
Rodas, the contract manager at NET assigned to the project, emailed
Turnbull 	that 	he 	was 	working 	on 	JRF’s 	payment 	and 	that 	NET’s
accounting 	department 	required 	JRF 	to 	sign 	a 	Master 	Services
Agreement (the “MSA”) to begin processing payment.
JRF and NET signed the MSA on October 4, 2023. The MSA stated
that 	JRF 	“will 	maintain 	compliance 	with 	all 	applicable 	E-Verify,
Service 	Contract 	Act, 	Davis 	Bacon, 	EEOC 	requirements, 	and 	EO
1 The Davis-Bacon Act, 40 U.S.C. § 3141 et seq., requires certain
federal 	contracts 	to 	include 	minimum 	hourly 	wage 	clauses. 	See
Univs. Rsch. Ass’n v. Coutu, 450 U.S. 754, 756 (1981). The minimum
wage, also known as the “prevailing wage,” is set by the Secretary
of Labor. See id.
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13496.” 	Dkt. 	42-3 	at 	4. 	The 	MSA 	required 	submission 	of 	service
orders before work could proceed, but no service orders were ever
generated 	for 	work 	done 	by 	JRF, 	including 	work 	completed 	before
execution of the MSA.
JRF 	claims 	that 	NET 	insisted 	on 	the 	MSA 	in 	an 	attempt 	to
create a pay-when-paid system that the Emergency Contract did not
include. 	According 	to 	JRF, 	Rodas 	was 	instructed 	by 	NET 	Chief
Operating 	Officer 	Faye 	Morris 	to 	look 	through 	the 	Emergency
Contract 	and 	communications 	between 	the 	parties 	to 	find 	language
that 	would 	support 	a 	pay-when-paid 	obligation. 	NET 	denies 	any
intent 	to 	circumvent 	the 	Emergency 	Contract’s 	provisions,
asserting 	instead 	that 	Rodas 	was 	simply 	told 	to 	figure 	out 	the
parties’ contractual framework.
On October 5, 2023, NET’s IRS contact notified Rodas that the
IRS was rejecting the JRF invoice because of the increase from the
initial cost estimates. The IRS requested detailed receipts of all
expenses 	and 	Certified 	Payroll 	Reports 	(“CPRs”) 	for 	all 	workers.
The 	same 	day, 	Rodas 	forwarded 	Turnbull 	a 	request 	for 	additional
documentation. 	Turnbull 	and 	Rodas 	spoke 	over 	the 	phone, 	and
Turnbull 	subsequently 	agreed 	to 	provide 	CPRs 	for 	hourly 	rate
employees. 	Later 	on 	October 	5, 	Rodas 	emailed 	Turnbull 	that 	the
government had directed NET and JRF to stop all work on the project
“until the money issues [were] resolved.” Dkt. 42-7 at 2.
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On 	November 	27, 	2023, 	Turnbull 	emailed 	Morris 	about 	both
invoices, writing: “Can you please advise on when payment will be
received for these invoices? It was our expectations [sic] to have
received them by the end of the month.” Dkt. 50-8 at 9. On November
29, 	Turnbull 	told 	Morris 	that 	JRF 	would 	resubmit 	the 	CPRs 	and
ensure 	they 	aligned 	with 	the 	invoices. 	He 	also 	requested 	payment
of any undisputed amounts by December 22.
III. The Final Invoices
On 	December 	4, 	2023, 	JRF 	submitted 	a 	revised 	mitigation
invoice (the “Final Mitigation Invoice”) for $1,802,407.01 and the
associated CPRs. On December 13, 2023, Turnbull emailed Morris and
Alfred Edwards (another NET employee) a set of revised prevailing
wage CPRs. The following day, Turnbull emailed Edwards to request
payment on the undisputed amounts later that month.
On 	December 	18, 	2023, 	Turnbull 	emailed 	Morris 	and 	Edwards
requesting 	an 	update 	on 	payment 	of 	the 	undisputed 	amounts 	and
asking when the IRS would complete its review of the labor charges.
Morris emailed Turnbull with a list of workers for Restoration Pro
Labor 	–- 	a 	labor 	subcontractor 	hired 	by 	JRF 	-- 	whom 	Morris 	could
not find on the CPRs. Morris claims she did not receive a response
about these workers.
On 	December 	19, 	Edwards 	emailed 	Turnbull 	and 	other 	JRF
employees 	to 	ask 	why 	fringe 	pay 	was 	not 	distinguished 	on 	the
Restoration Pro Labor CPRs. Approximately one week later, JRF sent
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an 	updated 	CPR 	“to 	reflect 	the 	breakdown 	between 	rate 	of 	pay 	and
fringe payout.” Dkt. 50-10 at 2.
On December 26, 2023, JRF submitted an updated reconstruction
invoice 	(the 	“Final 	Reconstruction 	Invoice”) 	for 	$1,544,345.26.
NET 	made 	partial 	payments 	to 	JRF, 	but 	has 	not 	paid 	JRF 	the 	full
invoiced amount.2
IV. 	The Lawsuit
JRF 	filed 	this 	lawsuit 	in 	Massachusetts 	Superior 	Court 	on
April 	3, 	2024. 	On 	May 	1, 	2024, 	NET 	removed 	the 	action 	to 	this
Court.3 	In 	July 	2024, 	the 	Court 	allowed 	NET’s 	motion 	to 	dismiss
JRF’s claims for quantum meruit and promissory estoppel but denied
the 	motion 	as 	to 	JRF’s 	claims 	for 	breach 	of 	contract 	(Count 	I),
breach 	of 	the 	implied 	warranty 	of 	good 	faith 	and 	fair 	dealing
(Count 	II), 	and 	violation 	of 	Chapter 	93A 	(Count 	V). 	See 	Dkt. 	27.
As to the Chapter 93A claim, the Court held that JRF had “plausibly
stated that at the time [NET] executed the Emergency Contract with
JRF,” 	NET 	“had 	no 	intention 	of 	making 	payment 	. 	. 	. 	for 	services
provided 	until 	after 	it 	had 	received 	payment 	from 	the 	IRS, 	which
2 	The 	total 	invoiced 	amount 	identified 	by 	JRF 	is 	$3,346,752.27,
which 	is 	the 	sum 	of 	the 	amounts 	of 	the 	Final 	Mitigation 	Invoice
and the Final Reconstruction Invoice.
3 	The 	Court 	has 	diversity 	jurisdiction 	over 	this 	action 	because
JRF’s sole members are citizens of New Hampshire, see Dkt. 65 ¶ 5,
and NET is a Texas corporation with its principal place of business
in 	Texas, 	see 	Dkt. 	66 	¶ 	2. 	See 	BRT 	Mgmt. 	LLC 	v. 	Malden 	Storage
LLC, 68 F.4th 691, 695-96 (1st Cir. 2023).
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was 	not 	a 	term 	in 	the 	[Emergency] 	[C]ontract.” 	Id. 	These 	cross-
motions for summary judgment followed.
LEGAL STANDARD
Summary 	judgment 	is 	appropriate 	when 	“there 	is 	no 	genuine
dispute 	as 	to 	any 	material 	fact 	and 	the 	movant 	is 	entitled 	to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is
genuine 	where 	the 	evidence 	“is 	such 	that 	a 	reasonable 	jury 	could
resolve 	the 	point 	in 	the 	favor 	of 	the 	non-moving 	party.”
Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir.
2018) 	(quoting 	Cherkaoui 	v. 	City 	of 	Quincy, 	877 	F.3d 	14, 	23-24
(1st Cir. 2017)). “A fact is material” if “it has the potential of
changing 	a 	case’s 	outcome.” 	Doe 	v. 	Trs. 	of 	Bos. 	Coll., 	892 	F.3d
67, 79 (1st Cir. 2018).
“The court must view the facts in the light most favorable to
the 	non-moving 	party 	and 	draw 	all 	reasonable 	inferences 	in 	[its]
favor.” 	Carlson 	v. 	Univ. 	of 	New 	Eng., 	899 	F.3d 	36, 	43 	(1st 	Cir.
2018). 	Where 	parties 	cross-move 	for 	summary 	judgment, 	“the 	court
must [examine] each motion separately, drawing inferences against
each movant in turn.” Vazquez-Velazquez v. P.R. Highways & Transp.
Auth., 	73 	F.4th 	44, 	51 	(1st 	Cir. 	2023) 	(alteration 	in 	original)
(quoting 	Viscito 	v. 	Nat’l 	Plan. 	Corp., 	34 	F.4th 	78, 	83 	(1st 	Cir.
2022)).
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DISCUSSION
I. 	Breach of Contract
To prevail on a breach of contract claim under Massachusetts
law, 	“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.” Minturn v.
Monrad, 	64 	F.4th 	9, 	14 	(1st 	Cir. 	2023) 	(quoting 	Young 	v. 	Wells
Fargo 	Bank, 	N.A., 	828 	F.3d 	26, 	32 	(1st 	Cir. 	2016)). 	There 	is 	no
dispute 	that 	the 	Emergency 	Contract 	was 	a 	valid 	and 	binding
contract 	and 	that 	JRF 	has 	not 	been 	paid 	in 	full 	for 	the 	work 	it
performed, which leaves breach as the only issue currently before
the 	Court. 	JRF 	contends 	that 	NET 	breached 	the 	Emergency 	Contract
by 	failing 	to 	pay 	the 	full 	invoice 	amounts 	without 	properly
objecting to any charges. NET contends that it disputed the labor
charges in the invoices.
Before 	resolving 	this 	dispute, 	the 	Court 	must 	address 	two
threshold arguments raised by NET.
A. 	NET’s Threshold Arguments
1. 	Accurate Invoices as a Condition Precedent
First, 	NET 	argues 	that 	the 	submission 	of 	“accurate 	and
substantiated labor charge billings” was “a condition precedent to
payment” and that JRF’s alleged failure to satisfy that requirement
relieved NET of its obligation to pay. Dkt. 46 at 9.
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The 	determination 	of 	whether 	contractual 	provisions 	are
unambiguous, 	and 	the 	interpretation 	of 	unambiguous 	contractual
provisions, are questions of law. See Minturn, 64 F.4th at 14. “A
contract is ambiguous either where its ‘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. (quoting Farmers Ins. Exch. v. RNK,
Inc., 632 F.3d 777, 783 (1st Cir. 2011)). Unambiguous terms “must
be understood in their ‘usual and ordinary sense,’ and a contract
should 	be 	interpreted 	‘in 	a 	reasonable 	and 	practical 	way,
consistent 	with 	its 	language, 	background, 	and 	purpose.’” 	Gen.
Hosp. 	Corp. 	v. 	Esoterix 	Genetic 	Lab’ys, 	LLC, 	16 	F.4th 	304, 	308
(1st 	Cir. 	2021) 	(quoting 	Bukuras 	v. 	Mueller 	Grp., 	592 	F.3d 	255,
262 (1st Cir. 2010)). A court will not consider extrinsic evidence
of 	contractual 	meaning 	where 	the 	provision 	in 	question 	is
unambiguous. See id.
A condition precedent is an event or condition that must occur
before a contract imposes an obligation to perform. See Twin Fires
Inv., 	LLC 	v. 	Morgan 	Stanley 	Dean 	Witter 	& 	Co., 	837 	N.E.2d 	1121,
1132 (Mass. 2005). “‘[E]mphatic words’ are generally” required “to
create 	a 	condition 	precedent.” 	Halstrom 	v. 	Dube, 	116 	N.E.3d 	626,
630 	n.8 	(Mass. 	2019) 	(quoting 	Mass. 	Mun. 	Wholesale 	Elec. 	Co. 	v.
Town of Danvers, 577 N.E.2d 283, 288 (Mass. 1991)).
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NET does not identify any language in the Emergency Contract
that 	could 	be 	read 	to 	establish 	the 	accurate 	substantiation 	of
invoices 	as 	a 	condition 	precedent 	to 	payment. 	Nor 	does 	any 	such
language 	exist. 	On 	the 	contrary, 	the 	Time 	and 	Materials 	sheet
unambiguously 	requires 	NET 	to 	dispute 	any 	charges 	“in 	writing
within 30 days of receipt of [an] invoice.” Dkt. 42-2 at 14. Absent
a 	clear 	written 	objection, 	NET 	is 	required 	to 	pay 	each 	invoice
within 30 days of receipt. The Court therefore disagrees with NET
that 	the 	submission 	of 	an 	inadequate 	invoice, 	if 	not 	properly
disputed, relieves NET of its obligation to pay.
2. 	Certified Payroll Reports and Material Breach
NET’s 	second 	threshold 	argument 	is 	that 	JRF 	materially
breached the Emergency Contract by failing to submit accurate CPRs,
thereby 	relieving 	NET 	of 	its 	obligation 	to 	perform. 	“A 	material
breach 	of 	an 	agreement 	occurs 	when 	there 	is 	a 	breach 	of 	‘an
essential 	and 	inducing 	feature 	of 	the 	contract[].’” 	Teragram
Corp. v. Marketwatch.com, 	Inc., 	444 	F.3d 	1, 	11 	(1st 	Cir. 	2006)
(alteration 	in 	original) 	(quoting 	Lease-It, 	Inc. 	v. 	Mass. 	Port
Auth., 600 N.E.2d 599, 602 (Mass. App. Ct. 1992)). When one party
materially 	breaches 	a 	contract, 	the 	other 	party 	is
“excuse[d] . . . from further performance.” Id. (quoting Lease-It,
Inc., 	600 	N.E.2d 	at 	602). 	While 	the 	materiality 	of 	a 	breach 	is
generally 	a 	factual 	question, 	it 	becomes 	a 	question 	of 	law 	when
the evidence is “either undisputed or sufficiently lopsided.” Id.
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(quoting 	Gibson 	v. 	City 	of 	Cranston, 	37 	F.3d 	731, 	736 	(1st 	Cir.
1994)).
The 	parties 	dispute 	whether 	JRF 	was 	required 	to 	pay 	its
workers prevailing wage under the Davis-Bacon Act. They point out
that 	the 	Emergency 	Contract 	and 	the 	Time 	and 	Materials 	sheet
contain 	varying 	language 	regarding 	this 	obligation. 	Compare 	Dkt.
42-1 	at 	2 	(“General 	labor 	. 	. 	. 	may 	be 	subject 	to 	prevailing
wage . . . .” 	(emphasis 	added)), 	with 	Dkt. 	42-2 	at 	10 	(“Labor 	is
subject 	to 	prevailing 	wage 	. 	. 	. 	. 	In 	such 	events, 	General 	Labor
will 	be 	charged 	at 	presented 	invoice 	plus 	35% 	or 	standard 	labor
rate, whichever is greater.” (emphasis added)).
The Court need not resolve whether JRF’s labor was subject to
prevailing wage, however, because even if it was, JRF’s purported
failure 	to 	submit 	adequate 	CPRs 	still 	would 	not 	constitute 	a
material breach of the Emergency Contract. Several factors inform
this 	conclusion. 	First, 	there 	is 	no 	clause 	in 	the 	Emergency
Contract that requires the reporting of CPRs in any form. Second,
the 	relevant 	federal 	regulations 	make 	clear 	that 	prevailing 	wage
clauses 	and 	payroll 	reporting 	clauses 	are 	different. 	Compare 	29
C.F.R. 	§ 	5.5(a)(1) 	(requiring 	insertion 	of 	prevailing 	wage
clauses), 	with 	id. 	§ 	5.5(a)(3)(ii) 	(same 	as 	to 	certified 	payroll
clauses). Therefore, even if the Emergency Contract did include a
prevailing 	wage 	clause 	that 	conformed 	with 	regulatory
requirements, 	it 	certainly 	did 	not 	include 	such 	a 	clause 	with
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respect 	to 	certified 	payroll 	reporting, 	which 	is 	viewed 	as 	a
distinct contractual component under the relevant regulations.
Third, 	even 	assuming 	JRF 	did 	fail 	to 	meet 	its 	Davis-Bacon
payroll reporting obligations, NET provides no legal basis for the
notion 	that 	the 	proper 	recourse 	is 	for 	NET 	to 	refuse 	to 	pay 	JRF.
Regulations 	promulgated 	under 	the 	Davis-Bacon 	Act 	provide 	that
“[i]n the event of any violations” of payroll reporting and other
clauses, 	“the 	prime 	contractor 	and 	any 	subcontractor(s)
responsible 	will 	be 	liable 	[to 	workers] 	for 	any 	unpaid 	wages 	and
monetary 	relief 	. 	. 	. 	and 	may 	be 	subject 	to 	debarment.” 	Id.
§ 5.5(a)(6). 	They 	do 	not, 	however, 	provide 	that 	the 	prime
contractor may, before any such violations are established, refuse
to 	pay 	the 	subcontractor 	where 	the 	prime 	contractor 	has 	itself
failed 	to 	include 	a 	required 	clause 	in 	the 	relevant 	subcontract.
See 	United 	States 	ex 	rel. 	D.L.I. 	Inc. 	v. 	Allegheny 	Jefferson
Millwork, LLC, 540 F. Supp. 2d 165, 176-77 (D.D.C. 2008) (holding
that contractor could not “back charge” subcontractor for alleged
Davis-Bacon 	Act 	violations 	where 	subcontract 	did 	not 	shift
liability for such violations to subcontractor). On the contrary,
the regulations provide that the “prime contractor is responsible
for 	the 	submission 	of 	all 	certified 	payrolls 	by 	all
subcontractors.” 29 C.F.R. § 5.5(a)(3)(ii)(A).
Accordingly, 	the 	Court 	concludes 	that 	NET 	was 	obligated 	to
pay invoices submitted by JRF unless it clearly objected in writing
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within 	30 	days, 	regardless 	of 	whether 	JRF 	had 	complied 	with 	the
CPR requirements under the Davis-Bacon Act. The Court now turns to
the question of whether NET adequately and timely objected to JRF’s
invoices.
B. 	Invoice Disputes
As 	previously 	noted, 	the 	Time 	and 	Materials 	sheet
incorporated 	into 	the 	Emergency 	Contract 	dictated 	that 	JRF’s
invoices 	were 	required 	to 	“be 	paid 	within 	30 	days 	of 	receipt”
unless NET “clearly identified in writing within 30 days of receipt
of 	[an] 	invoice” 	any 	“disputed 	charges.” 	Dkt. 	42-2 	at 	14. 	This
language 	lays 	out 	three 	requirements 	for 	proper 	objections 	to 	an
invoice: 	(1) 	disputed 	charges 	must 	be 	clearly 	identified,
(2) disputes 	must 	be 	in 	writing, 	and 	(3) 	disputes 	must 	be 	made
within 30 days of receipt of the invoice.
To support its contention that it properly objected to JRF’s
invoices, 	NET 	primarily 	points 	to 	an 	affidavit 	from 	Morris.4 	The
cited portions of the affidavit read, in relevant part:
[G]rave 	concerns 	by 	NET 	had 	emerged 	about 	the 	labor
charges, 	especially 	upon 	learning 	that 	JRF[] 	had 	not
submitted 	weekly 	certified 	payroll 	reports 	to 	NET 	as
required by Department of Labor standards for prevailing
wages. We then had a lengthy series of emails, telephone
4 	NET 	also 	cites 	deposition 	testimony 	from 	Edwards, 	but 	that
testimony 	nowhere 	suggests 	that 	NET 	clearly 	identified 	disputed
charges 	in 	writing. 	Although 	Edwards 	did 	testify 	that 	he 	once
“prepared 	a 	reconciliation 	between 	the 	certified 	payroll 	and 	the
invoice” related to Restoration Pro Labor’s work, Dkt. 49-3 at 20,
this statement does not create a genuine dispute as to whether an
adequate written objection was made to one of the final invoices.
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conversations, and virtual meetings with Joseph Turnbull
of JRF[]. I also met with Joseph Turnbull at his office
in 	Massachusetts. 	We 	also 	engaged 	with 	the 	owner 	of
Restoration Pro Labor about the labor charges. . . .
We 	told 	Joseph 	Turnbull 	that 	NET 	would 	not 	formally
submit 	the 	labor 	costs 	to 	the 	Government 	for 	payment
without adequate substantiation in the form of certified
payroll reports. . . .
NET pointed out to JRF[] discrepancies and inaccuracies
[with the CPRs]. . . .
Combined 	with 	the 	revisions 	to 	the 	calculations 	and
unsubstantiated 	wage 	rates, 	these 	defects 	raised 	red
flags for NET. NET consistently challenged the amount of
labor 	costs 	actually 	incurred 	by 	and 	owed 	to
JRF[] . . . .
Dkt. 50 ¶¶ 21-22, 25, 27.
Verbal 	objections 	made 	during 	virtual 	meetings 	or 	telephone
calls are insufficient to satisfy the Emergency Contract’s invoice
dispute 	clause. 	That 	leaves 	the 	“lengthy 	series 	of 	emails”
identified by Morris as the only cited evidence that could support
NET’s position. Id. ¶ 21.
Limiting its review to emails postdating the Final Mitigation
Invoice 	and 	Final 	Reconstruction 	Invoice, 	which 	are 	the 	invoices
at 	issue, 	see 	supra 	note 	2, 	the 	Court 	has 	identified 	two 	emails
worth 	noting. 	First, 	on 	December 	19, 	2023, 	Edwards 	emailed 	JRF
asking 	why 	there 	was 	“no 	[f]ringe” 	listed 	on 	a 	Restoration 	Pro
Labor CPR, in response to which JRF’s office manager send Edwards
an 	updated 	copy 	of 	that 	CPR 	with 	the 	requested 	information. 	Dkt.
50-10 	at 	2. 	Because 	no 	further 	objection 	by 	NET 	appears 	in 	the
record, 	a 	reasonable 	jury 	could 	not 	conclude 	that 	this 	email
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exchange resulted in any “clearly identified” written objection to
any specific “disputed charge[].” Dkt. 42-2 at 14.
Second, on December 18, 2023, Morris emailed Turnbull listing
thirteen Restoration Pro Labor employees that she could not “find
on the certified payroll” from August 15 through August 20, 2023.
Dkt. 50-13 at 2. No response from Turnbull appears in the record.
Drawing 	all 	reasonable 	inferences 	in 	NET’s 	favor, 	a 	reasonable
jury 	could 	conclude 	that 	Morris’s 	email 	clearly 	identified
disputed 	charges 	-- 	i.e., 	whatever 	charges 	were 	associated 	with
the work of these thirteen individuals for the six days from August
15 	to 	August 	20. 	But, 	drawing 	all 	reasonable 	inferences 	in 	JRF’s
favor 	for 	purposes 	of 	NET’s 	cross-motion, 	see 	Vazquez-Velazquez,
73 	F.4th 	at 	51, 	a 	reasonable 	jury 	could 	alternatively 	conclude
that 	Morris’s 	email 	did 	not 	constitute 	an 	adequate 	objection 	--
for example, because it objected to a CPR (rather than an invoice).
Summary judgment therefore cannot be granted for either party with
respect 	to 	charges 	associated 	with 	these 	thirteen 	employees 	on
these six days.
The Court has not identified any other documents in the record
that 	could 	reasonably 	be 	viewed 	as 	clear 	written 	objections 	to
disputed charges. Accordingly, JRF is entitled to summary judgment
on 	its 	breach 	of 	contract 	claim 	with 	respect 	to 	all 	charges 	at
issue, 	other 	than 	those 	associated 	with 	the 	thirteen 	employees
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identified 	by 	Morris 	for 	the 	six 	days 	referenced 	in 	her 	email 	on
December 18, 2023.
II. 	Breach of the Implied Covenant of Good Faith and Fair Dealing
JRF 	alleges 	that 	NET 	breached 	the 	implied 	covenant 	of 	good
faith 	and 	fair 	dealing 	by 	conditioning 	payment 	on 	terms 	not
contracted 	for 	to 	avoid 	paying 	JRF 	before 	being 	paid 	by 	the
government.
“Under Massachusetts law, ‘every contract implies good faith
and fair dealing between the parties to it.’” Young v. Wells Fargo
Bank, N.A., 717 F.3d 224, 237 (1st Cir. 2013) (cleaned up) (quoting
T.W. 	Nickerson, 	Inc. 	v. 	Fleet 	Nat’l 	Bank, 	924 	N.E.2d 	696, 	703
(Mass. 	2010)). 	To 	prevail 	on 	a 	claim 	for 	breach 	of 	the 	implied
covenant, the plaintiff must show bad faith or at least a lack of
good faith on the part of the defendant. See id. at 238. The “core
question” 	in 	determining 	a 	lack 	of 	good 	faith 	is 	“whether 	the
alleged 	conduct 	was 	motivated 	by 	a 	desire 	to 	gain 	an 	unfair
advantage, 	or 	otherwise 	had 	the 	effect 	of 	injuring 	the 	other
party’s 	rights 	to 	the 	fruits 	of 	the 	contract.” 	Id. 	The 	“covenant
cannot ‘create rights and duties not otherwise provided for in the
existing 	contractual 	relationship,’ 	and 	instead 	focuses 	on 	‘the
manner of performance.’” Id. (quoting Ayash v. Dana-Farber Cancer
Inst., 822 N.E.2d 667, 684 (Mass. 2005)). A lack of good faith can
be 	inferred 	from 	the 	totality 	of 	the 	circumstances. 	See 	Nile 	v.
Nile, 734 N.E.2d 1153, 1160 (Mass. 2000).
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In 	support 	of 	its 	contention 	that 	NET 	breached 	the 	implied
covenant 	of 	good 	faith 	and 	fair 	dealing, 	JRF 	chiefly 	argues 	that
NET wrongfully planned all along to withhold payment to JRF until
NET 	was 	paid 	by 	the 	government, 	without 	informing 	JRF 	of 	this
intention 	or 	structuring 	the 	Emergency 	Contract 	accordingly. 	JRF
further 	asserts 	that 	NET 	asked 	JRF 	to 	sign 	the 	MSA 	in 	an 	attempt
to 	create 	a 	pay-when-paid 	arrangement 	that 	did 	not 	previously
exist.
The 	parties 	agree 	that 	the 	Emergency 	Contract 	contains 	no
language expressly creating a pay-when-paid obligation. JRF points
out 	that 	NET 	provided 	the 	following 	response 	to 	a 	request 	for
admission: 	“Admitted 	that 	[NET] 	has 	not 	provided 	full 	payment
because 	the 	Government 	has 	not 	approved 	all 	of 	JRF 	. 	. 	. 	for
services 	[sic] 	invoices 	for 	payment.” 	Dkt. 	42-18 	at 	6. 	NET 	also
admitted that at the time of executing the Emergency Contract, “it
had no intention of paying JRF . . . until it had received payment
[from] 	the 	IRS 	and/or 	Government.” 	Id. 	at 	2. 	Where 	the 	evidence
NET cites to dispute this fact conflicts with its admissions, the
admissions control. See Fed. R. Civ. P. 36(b) (“A matter admitted
under 	th[e] 	rule 	[governing 	requests 	for 	admission] 	is
conclusively established . . . .”); Cement & Concrete Workers Dist.
Council Welfare Fund v. Manny P. Concrete Co., 145 F.4th 204, 211
(2d 	Cir. 	2025) 	(holding 	that 	factual 	issues 	conceded 	in 	Rule 	36
admissions 	are 	undisputed 	for 	summary 	judgment 	purposes). 	It 	is
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therefore 	undisputed 	that 	at 	the 	time 	the 	Emergency 	Contract 	was
executed, NET intended to impose a pay-when-paid requirement.
A 	genuine 	dispute 	of 	material 	fact 	remains, 	however,
regarding 	whether 	NET 	informed 	JRF 	of 	this 	intention. 	JRF 	cites
Cheney’s testimony that before signing the Emergency Contract, he
did not inform Turnbull of a pay-when-paid requirement. NET cites
other 	testimony 	from 	Cheney 	that 	he 	told 	JRF 	that 	before 	paying
JRF, 	NET 	“had 	to 	get 	approval 	from 	the 	government 	first.” 	Dkt.
49-1 at 12.
Further, a genuine dispute exists as to whether NET acted in
good 	faith. 	Edwards 	testified 	he 	believed 	pay-when-paid
requirements 	applied 	to 	JRF. 	Likewise, 	Morris 	testified 	that 	she
believed 	federal 	acquisition 	regulations 	applied 	to 	JRF 	because
the 	project 	was 	paid 	for 	with 	federal 	funds. 	JRF 	highlights
deposition 	testimony 	that 	Morris 	directed 	Rodas 	“to 	see 	if 	there
is something in place that will support pay-when-paid,” Dkt. 42-21
at 	15-16, 	but 	NET 	disputes 	that 	this 	direction 	was 	geared 	toward
depriving JRF of the benefit of its bargain, instead claiming that
Rodas 	simply 	was 	instructed 	to 	review 	the 	parties’ 	contractual
obligations. 	On 	this 	record, 	a 	reasonable 	jury 	could 	find 	either
that 	NET 	attempted 	in 	bad 	faith 	to 	impose 	an 	extracontractual
requirement in order to avoid paying JRF or that NET’s refusal to
pay was based on a good-faith belief that a pay-when-paid structure
existed and JRF knew of it. Summary judgment thus cannot be granted
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to either party on JRF’s claim for breach of the implied covenant
of good faith and fair dealing.
III. Chapter 93A Claim
Chapter 93A provides a remedy for unfair and deceptive trade
practices. 	See 	Mass. 	Gen. 	Laws 	ch. 	93A, 	§§ 	2(a), 	11. 	To 	prove 	a
violation of Chapter 93A, a party must show “conduct that (1) falls
within 	the 	penumbra 	of 	some 	common-law, 	statutory, 	or 	other
established 	concept 	of 	unfairness; 	(2) 	is 	immoral, 	unethical,
oppressive, or unscrupulous; and (3) causes substantial injury to
consumers 	or 	other 	businesspersons.” 	Jasty 	v. 	Wright 	Med. 	Tech.,
Inc., 528 F.3d 28, 37 (1st Cir. 2008) (cleaned up) (quoting Serpa
Corp. 	v. 	McWane, 	Inc., 	199 	F.3d 	6, 	15 	(1st 	Cir. 	1999)). 	Chapter
93A can be violated by “conduct in disregard of known contractual
arrangements 	and 	intended 	to 	secure 	benefits 	for 	the 	breaching
party,” 	Arthur 	D. 	Little, 	Inc. 	v. 	Dooyang 	Corp., 	147 	F.3d 	47, 	55
(1st Cir. 1998) (quoting Anthony’s Pier Four, Inc. v. HBC Assocs.,
583 	N.E.2d 	806, 	821 	(Mass. 	1991)), 	but 	“liability 	under 	Chapter
93A” 	is 	not 	“precluded 	by 	the 	absence 	of 	a 	contractual 	breach,”
Young, 717 F.3d at 240.
A party may violate Chapter 93A if contractually due payment
is 	withheld 	as 	a 	“wedge” 	to 	extract 	concessions 	from 	the 	other
party. Pepsi-Cola Metro. Bottling Co. v. Checkers, Inc., 754 F.2d
10, 18 (1st Cir. 1985). “[W]ithholding payment based on a genuine
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dispute about what a contract requires,” however, “does not violate
Chapter 93A.” Jasty, 528 F.3d at 38.
The 	same 	disputed 	facts 	that 	prohibit 	summary 	judgment 	for
either 	party 	with 	respect 	to 	the 	implied 	covenant 	of 	good 	faith
and 	fair 	dealing 	also 	prohibit 	summary 	judgment 	on 	JRF’s 	Chapter
93A 	claim. 	Without 	resolution 	of 	the 	conflicting 	evidence 	about
the 	state 	of 	mind 	of 	NET’s 	employees, 	whether 	NET 	knowingly
disregarded the Emergency Contract’s requirements and intended to
deceptively 	secure 	benefits 	for 	itself 	by 	withholding 	payment
cannot 	be 	established. 	Further, 	a 	genuine 	dispute 	remains 	as 	to
whether NET withheld payment to JRF as a “wedge” to try to persuade
JRF 	to 	sign 	the 	MSA 	in 	an 	attempt 	to 	create 	a 	pay-when-paid
obligation. Pepsi-Cola, 754 F.2d at 18.
CONCLUSION
For the foregoing reasons, JRF’s motion for summary judgment
(Dkt. 38) is ALLOWED with respect to JRF’s breach of contract claim
(Count 	I), 	except 	with 	respect 	to 	charges 	associated 	with 	the
workers and dates identified by Morris’s email dated December 18,
2023, 	see 	Dkt. 	50-13 	at 	2, 	for 	which 	summary 	judgment 	cannot 	be
granted 	to 	either 	party. 	JRF’s 	motion 	for 	summary 	judgment 	(Dkt.
38) is DENIED with respect to JRF’s claims of breach of the implied
covenant 	of 	good 	faith 	and 	fair 	dealing 	(Count 	II) 	and 	violation
of Chapter 93A (Count V). NET’s motion for summary judgment (Dkt.
46) is DENIED in full. Because the contents of Turnbull’s affidavit
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are 	not 	relevant 	to 	the 	Court’s 	resolution 	of 	the 	cross-motions
for 	summary 	judgment, 	NET’s 	motion 	to 	strike 	(Dkt. 	61) 	is 	DENIED
as moot.
SO ORDERED.
/s/ PATTI B. SARIS__________
Hon. Patti B. Saris
United States District Judge
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