Case 1:13-cv-12963-WGY Document 1 Filed 11/18/13 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS C.A. NO.: 1:13-cv-12963 PRESIDENT AND FELLOWS OF ) HARVARD COLLEGE ) Plaintiff ) ) v. ) ) COMMERCIAL MUSIC SERVICE CO. ) f/k/a CHIME MASTER SYSTEMS, INC. ) Defendant ) COMPLAINT THE PARTIES 1. President and Fellows of Harvard College ( Harvard ) is a Massachusetts non-profit educational corporation established under the laws and Constitution of the Commonwealth of Massachusetts with its principal place of business in Cambridge, Massachusetts. 2. Commercial Music Service Co. f/k/a Chime Master Systems, Inc. ( Chime Master ) is an corporation duly organized under the laws of the State of Ohio with a principal place of business located in Lancaster, Ohio. JURISDICTION AND VENUE 3. Jurisdiction of this Court is invoked under 28 U.S.C. 1332(a). Diversity of citizenship exists between the parties and the amount in controversy exceeds $75,000. 4. Venue herein is proper under 28 U.S.C. 1391. 1
Case 1:13-cv-12963-WGY Document 1 Filed 11/18/13 Page 2 of 8 ALLEGATIONS AND CAUSE OF ACTION 5. In 1932, A. Lawrence Lowell, Harvard s then-president donated a bell to be installed in the bell tower of Memorial Church in Harvard Yard on Harvard s campus in Cambridge, Massachusetts (the Memorial Church Bell ). 6. The Memorial Church Bell, weighing nearly five thousand pounds with a mouth over five feet in diameter, was installed as a part of the dedication of Memorial Church in 1932, on what was then known as Armistice Day, in honor of Harvard students who died in World War I. The Memorial Church Bell contains an inscription reading, In memory of voices that are hushed. 7. Beginning in 2006, Chime Master performed regular routine and preventative maintenance services on the Memorial Church Bell and its associated components and equipment. 8. In May 2011, Chime Master recommended that the Memorial Church Bell s clapper (the swinging metal component inside the bell that strikes the bell causing it to ring) be replaced. 9. Chime Master submitted a proposal (the Proposal ) dated May 12, 2011 for the sale to Harvard and installation of a custom-designed replacement clapper for the Memorial Church Bell. 10. Harvard accepted the Proposal on June 14, 2011. 11. The Proposal contained the following provision: GOLDEN WARRANTY: One year warranty against defects in material or workmanship. (the Warranty ). 2
Case 1:13-cv-12963-WGY Document 1 Filed 11/18/13 Page 3 of 8 12. At all relevant times, Chime Master was aware that Harvard had in its possession a spare clapper, but Chime Master nonetheless recommended the purchase and installation of a new custom-designed clapper (the Replacement Clapper ). 13. Chime Master completed the installation of the Replacement Clapper on June 28, 2011. 14. On June 28, 2011, upon completion of installation of the Replacement Clapper, the Memorial Church Bell was tested and rang without any apparent defect. 15. The Memorial Church Bell was next rung on August 31, 2011 and regular ringing of the bell resumed as students returned for the fall semester. 16. Within one week of August 31, 2011, it was noted that the tone of the Memorial Church Bell had changed such that the sound it produced when rung was abnormally loud and noticeably harsh. 17. Harvard asked Chime Master to inspect the Memorial Church Bell to determine the cause of the negative change in the tone and quality of the sound produced when it was rung. 18. Chime Master s inspection revealed a new, 24 to 30-inch crack in the Memorial Church Bell. 19. The crack in the Memorial Church Bell was caused by Chime Master s improper work in its selection and installation of the Replacement Clapper. 20. As a result of Chime Master s improper work, Harvard has incurred costs in determining the cause of the crack in the Memorial Church Bell and will incur great expense for its replacement. 21. In addition to the cost incurred in replacing the Memorial Church Bell, as a result of Chime Master s improper work, Harvard has sustained intangible damages because of the specialized and unusual character of the Memorial Church Bell. 3
Case 1:13-cv-12963-WGY Document 1 Filed 11/18/13 Page 4 of 8 COUNT I Negligence 22. Harvard repeats and reaffirms the allegations contained in Paragraphs 1 through 21 as if 23. Chime Master had a duty to Harvard to exercise reasonable care in its selection and replacement of the clapper in the Memorial Church Bell. 24. Chime Master breached its duty to Harvard in its selection and replacement of the clapper. 25. As a result of Chime Master s breach, Harvard has sustained and will sustain great expense and damage. actual damages, including consequential damages, to be determined at trial, plus costs and interest as provided by law. COUNT II Breach of Express Warranty 26. Harvard repeats and reaffirms the allegations contained in Paragraphs 1 through 25 as if 27. In connection with the sale of the Replacement Clapper and the work it agreed to do for Harvard pursuant to the contract described in Paragraphs 9 and 10, above (the Contract ), Chime Master expressly warranted the Replacement Clapper and the associated installation work performed by Chime Master against defects in material or workmanship for a period of one year from the date the Replacement Clapper was installed. 4
Case 1:13-cv-12963-WGY Document 1 Filed 11/18/13 Page 5 of 8 28. The Replacement Clapper sold by Chime Master to Harvard for use in the Memorial Church Bell was an incorrect and improper clapper for use in the Memorial Church Bell. 29. The erroneous choice of clapper and the installation of that incorrect and improper Replacement Clapper in the Memorial Church Bell constituted defective work and the use of defective materials by Chime Master in the performance of its work under the Contract thereby breaching the Warranty. 30. The damage resulting to the Memorial Church Bell from Chime Master s defective work and use of defective and improper materials occurred within one year of Chime Master s installation of the Replacement Clapper in the Memorial Church Bell. 31. Chime Master s breaches of warranty caused the Memorial Church Bell to crack and has caused and will cause Harvard to incur great expense and damage. actual damages, including consequential damages, to be determined at trial, plus costs and interest as provided by law. COUNT III Breach of Implied Warranty of Fitness for Particular Purpose 32. Harvard repeats and reaffirms the allegations contained in Paragraphs 1 through 31 as if 33. Chime Master knew, or had reason to know, of the specific purpose for which the Replacement Clapper was being sold to Harvard and installed in the Memorial Church Bell. 34. Chime Master held itself out to Harvard as having particular knowledge of what kind of replacement clapper was necessary and proper for use in the Memorial Church Bell. 5
Case 1:13-cv-12963-WGY Document 1 Filed 11/18/13 Page 6 of 8 35. Harvard relied upon Chime Master s skill or judgment in selecting and installing a proper and appropriate clapper for the Memorial Church Bell. 36. As a result of Chime Master s breach of the implied warranty of fitness for a particular purpose, the Memorial Church Bell cracked, causing Harvard to incur great expense and damage. actual damages, including consequential damages, to be determined at trial, plus costs and interest as provided by law. COUNT IV Breach of Implied Warranty of Merchantability 37. Harvard repeats and reaffirms the allegations contained in Paragraphs 1 through 36 as if 38. When Chime Master sold the Replacement Clapper to Harvard, the sale was subject to an implied warranty of merchantability including that the Replacement Clapper was fit for the ordinary purposes for which the Replacement Clapper would be used when installed in the Memorial Church Bell. 39. The Replacement Clapper sold to Harvard by Chime Master was an incorrect and improper clapper for use in the Memorial Church Bell and therefore the Replacement Clapper was not fit for the ordinary purposes for which it was intended by both Harvard and Chime Master to be used in the Memorial Church Bell. 40. Chime Master therefore breached the implied warranty of merchantability that attended the sale of the Replacement Clapper to Harvard for use in the Memorial Church Bell. 6
Case 1:13-cv-12963-WGY Document 1 Filed 11/18/13 Page 7 of 8 41. As a result of Chime Master s breach of the implied warranty of merchantability, the Memorial Church Bell cracked, causing Harvard to incur great expense and damage. actual damages, including consequential damages, to be determined at trial, plus costs and interest as provided by law. COUNT V Chapter 93A 42. Harvard repeats and reaffirms the allegations contained in Paragraphs 1 through 41 as if 43. Chime Master is engaged in the conduct of trade or commerce within the meaning of Mass. Gen. Laws ch. 93A, 9 and 11. 44. Chime Master s breach of the express warranty contained in the Contract constitutes a violation of Mass. Gen. Laws Ch. 93A, 2. 45. Chime Master s breach of the implied warranty or fitness for a particular purpose as set forth above constitutes a violation of Mass. Gen. Laws Ch. 93A, 2. 46. Chime Master s breach of the implied warranty of merchantability as set forth above constitutes a violation of Mass. Gen. Laws Ch. 93A, 2 47. Harvard suffered loss of money and property as a result of Chime Master s unfair or deceptive act or practices in violation of Mass. Gen. Laws Ch. 93A, 2. 48. As a result of Chime Master s violation(s) of Mass. Gen. Laws Ch. 93A, 2, Harvard is entitled to compensation for all actual and consequential damages resulting therefrom, plus and award of attorney s fees and costs. 7
Case 1:13-cv-12963-WGY Document 1 Filed 11/18/13 Page 8 of 8 49. Harvard sent a demand letter dated April 25, 2012 to Chime Master setting forth the unfair or deceptive acts or practices that it contends Chime Master committed relative to its sale and installation of the Replacement Clapper in the Memorial Church Bell together with a description of the damage that it claimed to have sustained as a result. 50. Chime Master did not respond to the demand letter with a reasonable offer of settlement and the failure to make a reasonable offer of settlement was made in bad faith with knowledge or reason to know that the acts and/or practices complained of by Harvard violated the provisions of Mass. Gen. Laws ch. 93A, 2. damages, including consequential damages; multiple damages in the amount of twice or treble the amount of its actual damages in the discretion of the Court based upon the Defendant s bad faith failure to grant relief in response to demand by the plaintiff; plus costs, interest and an award of reasonable attorneys fees incurred in this action. PRESIDENT AND FELLOWS OF HARVARD COLLEGE DEMANDS A TRIAL BY JURY ON ALL ISSUES SO TRIABLE. President and Fellows of Harvard College, By its Attorneys, /s/ Richard J. Riley, Esq. Richard J. Riley, BBO# 420610 Melissa S. Arnold, BBO# 655292 MURPHY & RILEY, P.C. 101 Summer Street, 2 nd Floor Boston, MA 02110 (617) 423-3700 rriley@murphyriley.com marnold@murphyriley.com Date: November 18, 2013 8