Sherman v. Clear Channel Outdoor, Inc.

889 F. Supp. 2d 168, 2012 WL 3067607, 2012 U.S. Dist. LEXIS 104693
CourtDistrict Court, D. Massachusetts
DecidedJuly 26, 2012
DocketCivil Action No. 11-11669-GAO
StatusPublished
Cited by5 cases

This text of 889 F. Supp. 2d 168 (Sherman v. Clear Channel Outdoor, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherman v. Clear Channel Outdoor, Inc., 889 F. Supp. 2d 168, 2012 WL 3067607, 2012 U.S. Dist. LEXIS 104693 (D. Mass. 2012).

Opinion

ORDER

O’TOOLE, District Judge.

The magistrate judge to whom this matter was referred has filed a report and recommendation with respect to the respondent’s Motion (dkt. no. 6) to Dismiss for failure to state a claim. After carefully reviewing the pleadings, the parties’ motion papers, and the report and recommendation itself, I adopt the report and recommendation of the magistrate. Accordingly, the claims are dismissed, with the exception of the portion of Count I that alleges breach of contract relating to Clear Channel Outdoor’s failure to remove its hardware from the roof and make necessary repairs, pursuant to paragraph 18 of the lease.

Accordingly, I ADOPT the recommendation. Defendant’s Motion (dkt. no. 6) to Dismiss is GRANTED as to Counts II, III, IV, and V. The motion is DENIED as to Count I.

It is SO ORDERED

REPORT AND RECOMMENDATION ON DEFENDANTS MOTION TO DISMISS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The defendant Clear Channel Outdoor, Inc. (“CCO”) maintained three commercial billboards on the roof of a building in Allston, Massachusetts, pursuant to a lease agreement between CCO and the plaintiff Leonard Sherman (“Sherman”). Upon learning that Sherman had entered into an agreement with CCO’s competitor, the plaintiff RSA Media, Inc. (“RSA”), which would eventually require the removal of the billboards at a time favorable to RSA, CCO preemptively took down the billboards but continued to pay rent under the terms of the lease. The plaintiffs then commenced this action, alleging that by prematurely removing the billboards CCO breached its lease agreement with Sherman (Count I), was liable for wrongful interference with contractual and advantageous relations (Counts II and III); and committed unfair and deceptive acts and practices in violation of Mass. Gen. Laws ch. 93A (Counts IV and V).

This matter is presently before the court on CCO’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. (Docket No. 6). While admitting that it needs to remove hardware left on the roof after the billboards were removed and pay for any related repair, CCO contends that it was not obligated to maintain the billboards so long as it continued to make the payments due under the lease. This court agrees. Therefore, and for the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the motion to dismiss (Docket No. 6) be ALLOWED IN PART, with the only claim remaining being the scope of CCO’s obligations with respect to the removal of the hardware and any related repair of the roof.

II. STATEMENT OF FACTS

When ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the [171]*171court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir.1999). “Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001). “There is, however, a narrow exception ‘for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs’ claim; or for documents sufficiently referred to in the complaint.’ ” Id. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993)). Applying this standard to the instant case, the facts relevant to the motion to dismiss can be found in the Complaint, included in Docket No. 1 (“Compl.”), and the lease, attached to CCO’s memorandum in support of its motion to dismiss at Docket 7-1. Thus, the relevant facts are as follows:

The Parties

The plaintiff, Leonard Sherman, doing business as Cambridge Street Realty, owns commercial real estate located at 417-433 Cambridge Street, Allston, Massachusetts. Compl. ¶ 1. Co-plaintiff RSA, a Massachusetts corporation, is in the outdoor advertising business. Id. ¶ 2, p. 1. Similarly, the defendant CCO, a Delaware corporation, is also engaged in the business of maintaining outdoor advertising. Id. ¶ 3, p. 1. Since approximately 1956, CCO and its predecessors have operated three outdoor advertising billboard structures on the roof of Sherman’s building in Allston pursuant to a series of lease extensions. Id., p. 2. During the time period relevant to this action, CCO also maintained a billboard on a parking structure in Allston owned by Jack Young Realty Trust, which is not a party to this action. Id., p. 3.

CCO’s Leases

Effective September 1, 2005, Sherman and CCO signed a five-year extension to Billboard Lease Agreement # 44. Id. ¶ 4. As stated therein, CCO, as Tenant, was leasing the property “for the purpose of erecting, maintaining, operating, improving, supplementing, posting, painting, illuminating, repairing, repositioning and/or removing outdoor advertising structures, including, without limitation, fixture connections, electrical supply and connections, panels, signs, copy and any equipment and accessories as Tenant may place thereon (collectively, the ‘Structures’).” Lease ¶ 1. The lease contained the following two provisions relied on by the parties:

5. Tenant is the owner of the Structures and has the right to remove the Structure within one hundred twenty (120) days following the termination of this Lease. If for any reason, Tenant’s Structures are removed, materially damaged or destroyed, all rent payments shall cease until the Structures are rebuilt. If the Structures are removed for any reason, only the above-ground portions of the Structures need be removed. Tenant has the sole right to make any necessary applications with, and obtain permits from, governmental entities for the construction, use and maintenance of the Structures, and Landlord hereby grants Tenant a limited power of attorney for this purpose. All such permits shall remain the property of Tenant. Tenant shall make every reasonable effort to rebuild or repair the sign within a period of ninety (90) days from the date of damage or destruction subject to local approval.
[172]*17218. Lessee shall be responsible for the removal of the signs at the expiration of this lease if a new tenancy is not created. Lessee will also remove the supporting brackets and fastening systems that secures the signs to the building underneath the roof. Lessee will also restore any penetration areas in the roof as a result of said removal of the sign. Following the removal of any Structure, Lessee shall make good faith efforts to return the Property to its original condition, reasonable wear and tear and uninsured casualty excepted. Lessee agrees to clean the area of any debris caused by the removal of the Structure.

(Emphasis added).

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Cite This Page — Counsel Stack

Bluebook (online)
889 F. Supp. 2d 168, 2012 WL 3067607, 2012 U.S. Dist. LEXIS 104693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-clear-channel-outdoor-inc-mad-2012.