          United States Court of Appeals
                     For the First Circuit


No. 14-2188

                        LIMOLINER, INC.,

                      Plaintiff, Appellant,

                               v.

                          DATTCO, INC.,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Jennifer C. Boal, U.S. Magistrate Judge]


                             Before

                   Kayatta, Stahl, and Barron,
                         Circuit Judges.


     Robert E. Curtis, Jr., with whom James S. Singer and Rudolph
Friedmann LLP were on brief, for appellant.
     Christopher S. Williams, with whom Williams & Associates was
on brief, for appellee.


                        December 23, 2015
            BARRON, Circuit Judge.           This appeal arises out of a suit

over repair work on a luxury motor coach.                The company that owns

the vehicle, LimoLiner, Inc., contracted with an automotive repair

company, Dattco, Inc., to do the work.            The parties do not contest

the finding below that Dattco breached the repair contract by

failing to do all of the work that LimoLiner had requested.                      But

LimoLiner does appeal the rulings below that Dattco may not be

held liable under a Massachusetts regulation for certain actions

and omissions that occurred on the job; that Dattco did not breach

the parties' oral contract to make the repairs in a timely manner;

and that Dattco owes damages only for the loss of use of the

vehicle for one limited period of time.

            We    certify     a   question    concerning    the    Massachusetts

regulation's intended scope to the Supreme Judicial Court of

Massachusetts, and we thus do not decide the merits of LimoLiner's

regulatory claims.       We otherwise affirm.

                                        I.

            LimoLiner is a Massachusetts corporation that owns and

operates    a    fleet   of   luxury   motor    coaches    that    are   known    as

"Liners."       Dattco is a Connecticut corporation that repairs and

services    motor    vehicles,      including    buses     and    coaches.       The

undisputed facts are as follows.

            On May 30, 2011, two LimoLiner employees met with two

Dattco representatives to discuss the possible need to repair one


                                         - 2 -
of the Liners, Liner 3001.          That vehicle had been out of service

for about a year and needed extensive repair work.

           At the May 30th meeting, Dattco orally agreed to repair

Liner 3001 by, among other things, replacing or repairing a part

of the vehicle called the inverter.          The parties agreed that Liner

3001 would be towed to Dattco's facility in Massachusetts for

inspection   and   that    Dattco    would   provide   a     list    of   repairs

following inspection.        During that meeting, LimoLiner's general

manager told Dattco's sales manager that LimoLiner wanted Liner

3001 to be repaired "as soon as possible."

           Following      that   meeting,    Dattco   generated      a    list    of

repairs, though that list did not include the inverter work that

the Magistrate Judge found that Dattco had actually agreed to

perform.     The   two     parties    used     this   list    to    divide       the

responsibility for each repair between each party.                 Dattco was to

undertake the bulk of the repair work with the rest left for

LimoLiner's own mechanics.

           After Dattco took hold of Liner 3001, LimoLiner became

concerned about the time Dattco was taking to repair the vehicle.

On August 4, 2011, at an in-person meeting, the representatives

from LimoLiner demanded compensation from Dattco for the monetary

losses LimoLiner claimed it had sustained up to that point as a

result of its inability to use Liner 3001.              On August 8, 2011,

LimoLiner followed up by letter and "complained about the level of


                                       - 3 -
attention, time and resources assigned to the job" by Dattco and

specifically demanded $42,000 in compensation.        LimoLiner, Inc. v.

Dattco, Inc., No. 11–11877–JCB, 2014 WL 4823877, at *4 (D. Mass.

Sept. 24, 2014). That letter also contained an offer to pay Dattco

a certain amount for its services if Dattco delivered Liner 3001

by 5:00 p.m. on Friday, August 12, 2011.

            Dattco responded to that letter by email on August 25,

2011.    In doing so, Dattco informed LimoLiner that Liner 3001 was

ready for pickup.         Attached to the email was an invoice for

$10,404.

            LimoLiner refused to pay, but offered to put the money

in escrow in exchange for the return of Liner 3001.           Dattco did

not accept that offer.

            On October 5, 2011, LimoLiner filed this action in

Massachusetts Superior Court. The suit alleged breach of contract,

misrepresentation, negligence, replevin, and violation of 940

C.M.R. § 5.05, a regulation promulgated by the Massachusetts

Attorney General pursuant to Mass. Gen. Laws ch. 93A, § 2 ("Chapter

93A").     LimoLiner also moved for an order directing Dattco to

return Liner 3001.

            The   court   issued   the   requested   order   after   first

requiring LimoLiner to submit a $10,404 deposit to the Clerk's

Office.    Dattco complied with the court's order and returned Liner

3001 to LimoLiner on October 12, 2011.


                                     - 4 -
          Dattco removed the case to federal district court on the

basis of diversity jurisdiction, answered, and counterclaimed for

breach of contract and quantum meruit.        A Magistrate Judge,

presiding by consent over a bench trial, found that Dattco had

expressly agreed to repair Liner 3001's inverter and breached the

agreement by failing to make that repair.1    The Magistrate Judge

awarded LimoLiner $35,527.89 in damages for that breach.       The

Magistrate Judge ruled for Dattco on all of LimoLiner's other

claims, including the remaining contract claims and the regulatory

claims.   The Magistrate Judge also awarded Dattco $10,404 in

damages on its quantum meruit claim, thereby reducing LimoLiner's

total recoverable damages to $25,123.89.

          LimoLiner appeals on three grounds.     First, LimoLiner

contends that the Magistrate Judge erred when she held, as a matter

of law, that 940 C.M.R. § 5.05 does not apply to this dispute

because the regulation does not apply to disputes between two

businesses.   Second, LimoLiner contends that the Magistrate Judge

committed clear error when she found both that the parties did not

agree to an expedited term for performance and that Dattco did not

breach the parties' implicit agreement to complete the work within




     1 Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the
instant case was referred and reassigned in the district court,
with the parties' consent, to a Magistrate Judge for all purposes,
including trial, the entry of judgment, and all post-trial
proceedings.


                                 - 5 -
a reasonable period of time.                Third, LimoLiner contends that the

Magistrate Judge clearly erred in awarding damages that provide

compensation only for one portion of the time that LimoLiner was

without the use of Liner 3001.

                                            II.

             We start with LimoLiner's regulatory claims.                           Chapter

93A generally prohibits "unfair or deceptive acts or practices in

the conduct of any trade or commerce."                     Mass. Gen. Laws ch. 93A,

§   2(a).        The   statute      also    empowers   the    Attorney        General   of

Massachusetts          to   issue    regulations       the    violation        of    which

constitutes a per se violation of Chapter 93A.                      See id. § 2(c);

940 C.M.R. § 3.16(3).

             LimoLiner's       regulatory         claims    rely   on    one    of    those

regulations, 940 C.M.R. § 5.05.               It provides, among other things,

that "[i]t is an unfair or deceptive act or practice for a repair

shop, prior to commencing repairs on a customer's vehicle, to fail

to record in writing . . . [t]he specific repairs requested by the

customer . . . ."           Id. § 5.05(2)(e).

             The Magistrate Judge found that Dattco failed to include

the inverter in the written list of repairs it prepared prior to

working     on    Liner     3001,    even    though    LimoLiner        had    previously

requested that specific repair.                    LimoLiner thus contends that

Dattco plainly violated the regulation in this and other respects.

But the Magistrate Judge ruled that § 5.05 does not apply to


                                              - 6 -
business-to-business     transactions       and     instead      regulates

transactions only between businesses and individual consumers.

For that reason, the Magistrate Judge rejected LimoLiner's claim

that Dattco violated the regulation.

          Neither the Massachusetts Supreme Judicial Court ("SJC")

nor this Circuit has construed this regulation before.            But the

SJC has held that a subsection of an arguably analogous Chapter

93A regulation is inapplicable to corporate consumers.           See Knapp

Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 640 N.E.2d 1101, 1102

(1994) (holding that 940 C.M.R. § 3.08(2) does not apply to

business-to-business transactions).       And we have followed Knapp in

concluding that a different Chapter 93A regulation also does not

apply to business-to-business disputes.           See Baker v. Goldman,

Sachs & Co., 771 F.3d 37, 56-57 (1st Cir. 2014) (holding, on the

basis of Knapp, that 940 C.M.R. § 3.16 does not apply to business-

to-business transactions).

          In Knapp, the SJC addressed 940 C.M.R. § 3.08(2), a

provision that makes it an unfair and deceptive act or practice

"to fail to perform or fulfill any promises or obligations arising

under a warranty."    940 C.M.R. § 3.08(2).       Knapp held that it was

"reasonably clear that, in drafting the regulation, the Attorney

General   had    in   mind   protection     for    consumers,"     meaning

individuals.    Knapp, 640 N.E.2d at 1105.




                                   - 7 -
             The SJC reached that conclusion by first noting that

§ 3.08(2) was promulgated in 1971, the year before Chapter 93A was

amended to give corporate entities a right of action under the

statute.     Id. at 1103, 1105.     The SJC then examined § 3.08 "as a

whole" and noted that the other two subsections of the regulation

explicitly    referred   to    "consumers"      and    "concern[ed]   matters

generally    involved    in    consumer    transactions,"     such    as   "the

obligation[] to provide the customer with a written and accurate

estimate of the anticipated cost of repairs[] and a prohibition on

charging for repairs which the customer has not authorized."               Id.

at 1105.      The SJC thus concluded that subsection (2) of the

regulation was "not intended to encompass a contract dispute

between businessmen" because "the bulk of the regulation applie[d]

only   to    consumers   and    their     interests,    and   subsection    (2)

contain[ed] no language suggesting that it was meant to apply to

a broader class of persons or interests."              Id.

             Dattco contends -- and the Magistrate Judge agreed --

that § 5.05 is just like the subsection of the regulation construed

in Knapp.     Although § 5.05 does not use the term "consumer," it

does set out obligations very similar to those that the Knapp court

described as being "generally involved in consumer transactions."

See 940 C.M.R. § 5.05 (referring to repairs and service made for

the benefit of the "customer" and with respect to the "customer's"

vehicle); 940 C.M.R. § 5.05(2)(e) (obligating a repair shop to


                                        - 8 -
make a written record of all specific repairs requested by the

customer      before    commencing     repair    work);    id.    §    5.05(3)

(prohibiting a repair shop from charging for repairs that have not

been authorized by the customer); see also Knapp, 640 N.E.2d at

1105 n.6 (noting in the context of § 3.08 that "consumer" and

"customer" are used interchangeably).           And the sample waiver form

included in the text of the regulation -- provided to give repair

shops   the    option   to   ask   customers    to   authorize   repairs    in

advance -- is written in the first person, as if on behalf of an

individual rather than a business.          See 940 C.M.R. § 5.05(3)(d)

("I understand that I have the right to know before authorizing

any repairs what the repairs to my car will be and what their cost

will be.      You need not obtain approval from me for repairs or

inform me prior to performing repairs what the repairs are or their

cost, if the total amount for repairs does not exceed [a specified

amount].").

              Nonetheless, unlike the regulation considered in Knapp,

§ 5.05 is part of the Massachusetts Attorney General's "motor

vehicle" regulations.        Thus, unlike the regulation considered in

Knapp, § 5.05 is not part of the general "consumer protection"

regulations. And, as LimoLiner contends, the terms of § 5.05 could

be read to more directly encompass acts taken in the business-to-

business context than could the terms of the subsection of the

regulation     considered    in    Knapp.      See   generally   id.   §   5.05


                                       - 9 -
(proscribing unfair or deceptive acts or practices in relation to

the "customer"); id. § 5.01 (defining "customer" as "any person

who      has    [or   seeks     to    have]     repairs,    service   or   maintenance

performed . . . by a repair shop on a motor vehicle"); id. (defining

"person" as a "corporation," among other things).

                 Moreover, the timing of the promulgation of § 5.05

differs from the timing of the promulgation of § 3.08(2).                        Section

5   of    the     regulations        --   and   thus   this   regulation    --    became

effective in 1976.            That was four years after corporations were

granted a right of action under Chapter 93A.                      Thus, the timing-

based reason the SJC gave in Knapp for construing the reach of

that regulation not to encompass business-to-business disputes is

not present here.

                 The SJC has not had occasion to provide additional

guidance since Knapp about whether regulations promulgated under

Chapter 93A apply to business-to-business disputes.                              We thus

conclude that this case presents "close and difficult legal issues"

for      which     there   is    no       controlling      Massachusetts    precedent.

Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 51 (1st

Cir. 2013).           Moreover, this case has the potential to impact

numerous         business-to-business            transactions     concerning       motor

vehicle repair and service, implicates competing policy interests,

and involves an area of traditional state authority.                       See id. at

52-53.         And, finally, resolution of the regulation's scope "may be


                                                - 10 -
determinative of" LimoLiner's regulatory claims.          See Mass. S.J.C.

R. 1:03.    Accordingly, we certify the following question to the

SJC, as the SJC permits us to do in these circumstances, see id.:

     Does 940 C.M.R. § 5.05 apply to transactions in which
     the customer is a business entity?

            The Clerk of this court is directed to forward to the

Massachusetts Supreme Judicial Court, under the official seal of

this court, a copy of the certified question and our opinion in

this case, along with copies of the briefs and appendices filed by

the parties.       We retain jurisdiction over this appeal, and the

question of whether Dattco violated § 5.05, pending resolution of

the certified question.

                                        III.

            With respect to LimoLiner's contract claims, the company

contends that the Magistrate Judge clearly erred in finding that

the parties did not agree to an expedited term of performance.

LimoLiner also contends that, in any event, Dattco breached the

agreement by failing to perform within a reasonable time.                 We

consider each argument in turn.

                                         A.

            The contract between the parties was an oral one.             The

parties    do    not   dispute   that    Massachusetts   law   governs   this

contract.       The parties also do not dispute that a representative

of LimoLiner told Dattco on May 30, 2011 -- prior to Liner 3001's



                                         - 11 -
transfer to Dattco's facilities -- that LimoLiner wanted the

vehicle to be repaired "as soon as possible."                  The question,

therefore, is whether that statement made expedited performance a

term of the oral contract between the parties.

             The parties agree that under Massachusetts law this

question is one of fact, see Rizzo v. Cunningham, 20 N.E.2d 471,

474 (Mass. 1939); RCI Northeast Servs. Div. v. Boston Edison Co.,

822 F.2d 199, 202 (1st Cir. 1987) ("[W]here the plain meaning of

a contract phrase does not spring unambiguously from the page or

from   the   context,   its   proper   direction     becomes     one   for   the

factfinder, who must ferret out the intent of the parties.")

(applying     Massachusetts   law),     and   that   we   must    review     the

Magistrate Judge's finding only for clear error.           See Fed. R. Civ.

P. 52(a)(6).     We find none.

             The Magistrate Judge did note that "[i]n other contexts,

phrases such as 'as soon as possible' and 'as soon as practicable'

have been construed to mean 'as soon as reasonably possible under

the circumstances of the case.'"         LimoLiner, 2014 WL 4823877, at

*5.    But the Magistrate Judge expressly found, in this instance,

that "there was no agreement that the repairs would be performed

on an expedited basis."        Id.     The Magistrate Judge reasoned as

follows.

             The Magistrate Judge found that there was "no evidence

that LimoLiner ever told Dattco that it needed [Liner 3001] by a


                                       - 12 -
specific date or the reason why it needed it back as soon as

possible."     Id. at *5.       Consistent with that finding, the record

shows that LimoLiner had not used Liner 3001 for its luxury

transportation business for over a year by the time it contracted

with Dattco for repairs.         The record also provides a basis for the

Magistrate Judge's finding that Dattco understood "that Liner 3001

had been out of service for quite some time."           Id. at *3.      In fact,

the Dattco sales manager present at the May 30th meeting testified

that "[b]ecause [Liner 3001] had been down for so long . . . [he]

didn't believe there was any urgency, no one had told [him] about

any urgency."

             As a result, the Magistrate Judge did not clearly err in

treating LimoLiner's single oral request for performance "as soon

as   possible"   to    be   a   perfunctory     suggestion     rather   than   a

manifestation     of   a    mutually   agreed    upon   term    of   expedited

performance.2     See Murphy v. Nelson, 27 N.E.2d 678, 679 (Mass.

1940) (holding that an oral conversation regarding the terms of an

agreement "could be found not to have been intended by the parties

to be a part of their [ultimate] agreement," as it "was no more

than an expression of an opinion or suggestion concerning the




      2Although LimoLiner repeatedly renewed its request for
expedited performance after work on Liner 3001 was well underway,
LimoLiner does not contend -- nor could it reasonably contend --
that these subsequent requests were part of the parties' original
contract or that they modified the parties' contract.


                                       - 13 -
transaction into which the parties contemplated entering"); cf.

Rezendes v. Barrows, No. CIV. A. B96-01625, 1998 WL 470505, at *12

(Mass. Super. Aug. 11, 1998) (holding that a written brokerage

agreement did not include an expedited term of performance because

the agreement contemplated a definite result and lacked an explicit

expiration date, even though the broker knew that the borrowers

were "seeking funds as soon as possible").     We therefore reject

LimoLiner's first challenge.

                                 B.

           LimoLiner next argues that even if there was no agreement

to expedite the repair work, Dattco still failed to perform the

repairs within a reasonable period of time.        LimoLiner first

contends that the Magistrate Judge erred by failing to make a

finding on this score at all.     LimoLiner then contends that, to

the extent the Magistrate Judge did find that Dattco's performance

was timely, the Magistrate Judge committed clear error in so

finding.

            Under Massachusetts law, if a contract is silent as to

the term for performance, then "the term shall be a reasonable

time based on all the relevant evidence."    See Bushkin Assocs. v.

Raytheon Co., 815 F.2d 142, 146 (1st Cir. 1987); Thermo Electron

Corp. v. Schiavone Const. Co., 958 F.2d 1158, 1164 (1st Cir. 1992)

(in the absence of any specified time limit or provision stating

that time was "of the essence," the term was "a reasonable time").


                                 - 14 -
Contrary to LimoLiner's contention, the Magistrate Judge, applying

that default term for performance, did find that Dattco performed

within a reasonable time.       See LimoLiner, 2014 WL 4823877, at *5

(finding that Dattco "did not breach the contract with regard to

the   timing   of   the   repairs,"   as   Dattco   performed   as   soon   as

reasonably possible under the circumstances).

           That being the case, LimoLiner agrees that a finding

about "reasonable" timely performance is one of fact and is thus

"subject to the clearly erroneous standard of Fed. R. Civ. P.

52(a)."   See Hammond v. T.J. Litle & Co., Inc., 82 F.3d 1166, 1177

(1st Cir. 1996) (applying Massachusetts law).          And, once again, we

find no clear error.

           The reasonableness of Dattco's twelve-week period of

performance -- extending from May 31, 2011 to August 25, 2011 --

"depends on the nature of the contract, the probable intention of

the parties as indicated by it, and the attendant circumstances."

Charles River Park, Inc. v. Bos. Redevelopment Auth., 557 N.E.2d

20, 32 (Mass. App. Ct. 1990).         The Magistrate Judge supportably

found that those considerations weighed in favor of finding that

Dattco had performed within a reasonable time.

           In addition to finding that Liner 3001 had been out of

service for some time, the Magistrate Judge found that Liner 3001

was missing a number of critical parts and thus needed significant

repair work, the extent of which was originally unforeseen by the


                                      - 15 -
parties.3      The Magistrate Judge also found that LimoLiner did not

express an urgent need to have Liner 3001 repaired until after

another Liner -- Liner 3000 -- had been badly damaged in late June

2011.       The record provides sufficient support for each of these

findings.

              LimoLiner does contend that the Magistrate Judge failed

to take into consideration certain of Dattco's actions (or non-

actions) when determining whether Dattco acted within a reasonable

time. For example, LimoLiner points to record evidence that Dattco

did not begin work on Liner 3001 until June 9, 2011, or nine days

after it acquired possession of the vehicle.          LimoLiner also

contends that the record shows that, as of July 28, 2011, Dattco

had performed only 62.2 hours of work on Liner 3001, as Dattco

averaged a little over one hour per day in the first eight weeks

(even though Dattco had mechanics working twenty-four hours per

day).       LimoLiner further contends, based on certain testimony

adduced at trial, that Dattco was generally not busy during the

twelve-week period.




        3
       A sales manager for Dattco testified that "[t]here were body
parts missing off the engine [of Liner 3001]. In the electrical
compartment we could see evidence of a fire and smell evidence of
a fire." A work supervisor at Dattco further testified that "there
w[ere] several obvious defects with the vehicle.      Lights, body
panels missing, it appeared it hadn't run in quite some time.
Batteries were dead. There was one of two alternators I believe
were seized up on the vehicle."


                                    - 16 -
           But the Magistrate Judge referenced the fact that Dattco

did not begin work on Liner 3001 until June 9, 2011 and that Dattco

spent only 62.2 hours working on Liner 3001 as of July 28, 2011.4

The Magistrate Judge just gave that evidence little weight in view

of "the nature of the contract, the probable intention of the

parties as indicated by it, and the attendant circumstances."

Charles River Park, Inc., 557 N.E.2d at 32.               For example, in

considering the circumstances bearing on the timeliness of the

repairs,   the   Magistrate   Judge   reasonably   gave    weight   to   the

"evidence that once some repairs were performed, new problems were

found that had to be addressed."        LimoLiner, 2014 WL 4823877, at

*5.

           Perhaps this record could be read to permit a different

finding.   But that possibility does not suffice to show that the

Magistrate Judge clearly erred in finding as she did. "Where there

are two permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous."         Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 574 (1985); cf. Thermo Electron

Corp., 958 F.2d at 1165-66 (where there was strong evidentiary

support in the record to support the conflicting notions that a




      4The Magistrate Judge, as factfinder, was entitled to credit
testimony that Dattco worked on Liner 3001 "as available man hours
allowed" over testimony that Dattco was not particularly busy
during the relevant time period and therefore could have devoted
many more hours to repairing Liner 3001.


                                      - 17 -
party had and had not repudiated contract, the appellate court

deferred   to   the   district   court's   finding   that   there   was   no

repudiation).    We thus affirm the Magistrate Judge's finding that

Dattco did not breach its oral contract with LimoLiner with respect

to the timeliness of repair.

                                   IV.

           LimoLiner's final contention is that we must reverse the

Magistrate Judge's award of damages because it accounted for only

a portion of the time in which LimoLiner was without the use of

Liner 3001 and thus was too limited.        Here, too, the issue is one

of fact, and our review is for clear error.          See Fed. R. Civ. P.

52(a)(6); Twin Fires Inv., LLC v. Morgan Stanley Dean Witter &

Co., 837 N.E.2d 1121, 1135 (Mass. 2005) (noting that "the amount

of damages awarded is a factual issue"); Thermo Electron Corp.,

958 F.2d at 1166.     And here, too, we affirm.

           There were three periods of time during which LimoLiner

was without the use of Liner 3001.         The first period ran from May

31, 2011 to August 25, 2011, when Dattco was performing repairs on

the vehicle. The second period ran from August 25, 2011 to October

12, 2011, when Dattco was holding Liner 3001 pending payment for

the services performed.      The third period ran from October 12,

2011 to November 11, 2011, when LimoLiner had possession of Liner

3001 and during which period LimoLiner made arrangements to obtain

and replace the inverter.


                                    - 18 -
            LimoLiner argued below that it was entitled to damages

for a four-month loss of use of Liner 3001 -- spanning from July

2011 (middle of the first period) to October 2011 (middle of the

third period) -- due to Dattco's alleged delay in performance and

Dattco's failure to perform all the requested repairs.                       The

Magistrate Judge disagreed. The Magistrate Judge declined to award

damages to LimoLiner for any portion of the first and second

periods of time.     Indeed, the Magistrate Judge awarded damages to

LimoLiner for only a portion of the third period of time.                    See

LimoLiner, 2014 WL 4823877, at *10 n. 10 (noting that LimoLiner

bore responsibility for a one-week delay during the third period

of   time   and    thus    "attribut[ing]       a   three-week     delay     and

corresponding damages to Dattco's conduct" during that four-week

period (emphasis added)).

            On appeal, LimoLiner accepts the Magistrate Judge's

award of damages to LimoLiner for only a portion of the third

period of time.      But LimoLiner challenges the Magistrate Judge's

refusal to award damages for the first and second periods of time.

Specifically, LimoLiner contends that it was entitled to damages

for the loss of use of Liner 3001 during a portion of the first

period and all of the second period.

            The   Magistrate   Judge    declined     to   award    damages    to

LimoLiner for the first period in light of her finding that Dattco

performed   within    a   reasonable    time.       Because   we   affirm    the


                                       - 19 -
Magistrate Judge's finding of timeliness and because, as LimoLiner

implicitly concedes, only a contrary finding would have supported

an award of damages to LimoLiner during the first period, the

Magistrate Judge did not clearly err in withholding damages for

the entire first period of time.

           As to the second period of time, Massachusetts law has

long made clear that a prevailing party may be awarded damages

only to the extent those damages are attributable to breaches or

misconduct by the opposing party.            See Stratton v. Posse Normal

Sch. of Gymnastics, 163 N.E. 905, 905 (Mass. 1928) ("Damages not

directly traceable to the violation of the contract or which result

from other causes are not allowed."). And LimoLiner has the burden

of establishing that the damages it suffered from the loss of use

of Liner 3001 during the second period were proximately caused by

Dattco's misconduct.    See Augat, Inc. v. Aegis, Inc., 631 N.E.2d

995, 997 (Mass. 1994) ("The plaintiffs had to show the portion of

[the   company's]   losses   .   .   .    that    was   attributable   to   the

defendants' misconduct.").

           In other words, LimoLiner must show that the damages it

sustained during the second period were proximately caused by the

misconduct that the Magistrate Judge did attribute to Dattco --

that is, Dattco's failure to repair the inverter.                  But this

LimoLiner has not done.      For while LimoLiner makes two arguments




                                         - 20 -
on appeal as to why it ought to have been awarded damages for the

second period, both arguments amount to nonsequiturs.

           LimoLiner first contends the Magistrate Judge's finding

that LimoLiner did not fail to mitigate damages during the second

period indicates that LimoLiner should in fact have been awarded

damages for that period.     But LimoLiner's conduct is immaterial to

the   inquiry,   as   the   relevant    question   is    whether   Dattco's

misconduct proximately caused the damages sustained during the

second period.   LimoLiner next contends that the Magistrate Judge

erroneously based her decision to withhold damages for the second

period on her finding that Dattco did not breach the parties'

contract in regard to timeliness.         But the Magistrate Judge gave

no indication that she considered Dattco's timeliness in declining

to award damages to LimoLiner for the second period.

           In consequence, LimoLiner has not demonstrated that the

Magistrate Judge clearly erred in awarding damages in the limited

manner that she did for the breach that she found.           And, we note,

the record provides support for finding that Dattco had a basis

for holding onto Liner 3001 during the second period that was

unrelated to the breach that had been found.            In concluding that

LimoLiner was not entitled to damages for replevin, the Magistrate

Judge found that Dattco lawfully retained possession of Liner 3001

during the second period pursuant to the Massachusetts Garage

Keepers statute.      See Mass. Gen. Laws ch. 255, § 25.           And that


                                       - 21 -
finding supports Dattco's contention that the loss of use of Liner

3001 was driven by a reasonable payment dispute between the parties

and thus that the Magistrate Judge did not clearly err in awarding

damages as she did.

                                V.

          For the reasons above, we affirm the Magistrate Judge's

disposition of the parties' state law contract claims.      But we

certify the question regarding 940 C.M.R. § 5.05 to the Supreme

Judicial Court of Massachusetts in accordance with the directions

set forth above.




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