Phoung Luc v. Wyndham Management Corp.

United States Court of Appeals
For the First Circuit

No. 06-1737

PHOUNG LUC & THAI MINH CHINH,

Plaintiffs, Appellants,

v.

WYNDHAM MANAGEMENT CORP., et al.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.

David S.V. Shirley, with whom Joseph F. McDowell, III and
McDowell & Osburn, P.A., were on brief, for appellants.
Timothy J. Smyth, with whom Thomas B. Farrey, III and Burns &
Farey, were on brief, for appellees Tremont Boston Hotel, et al.
Clyde K. Hanyen, with whom Peter E. Heppner and Lynch & Lynch,
were on brief, for appellee Boston Ballroom Corporation.

August 7, 2007
 LIPEZ, Circuit Judge. This diversity case involves a

tragic accident which is not susceptible to the legal remedy that

the plaintiffs-appellants seek in this action. They suffered

injuries and losses as a result of Roberto Madruga's decision to

drive while intoxicated. However, they are pursuing claims not

against Madruga but against the bar that served him, and the hotel

that housed that bar. As a federal court with diversity

jurisdiction, we are bound to follow the law as articulated by the

state courts, and we find that Massachusetts does not presently

recognize the theories of liability asserted by plaintiffs. We,

therefore, must affirm the district court's entry of summary

judgment for defendants.

I.

A. Factual Background

Plaintiffs, husband Thai Minh Chinh and wife Phoung Luc,

were driving to their home in Concord, New Hampshire, late at night

on July 21, 2002. Luc was four months pregnant with their first

child and needed to exit the car; Chinh, who was driving, pulled

the car into the break-down lane and came to a stop. Luc

unfastened her seatbelt and opened the passenger-side door. At

that moment, their car was hit from behind by a truck driven by

Madruga. The plaintiffs' car turned upside down and both Luc and

Chinh were hurt. Among other injuries, Luc suffered a miscarriage.

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 At the time of the accident, Madruga was driving the

truck, which belonged to his cousin, Helio Demelo, because Demelo

was too intoxicated to drive. The pair, along with Demelo's

girlfriend, had spent the evening at a Boston nightclub, the Roxy,

which occupied the second floor of the Tremont Hotel. While at the

Roxy, Madruga drank three mixed drinks, each of which had at least

two shots of liquor, and one bottle of water. The group left the

club shortly before 2:00 a.m., and Madruga began driving them home.

After getting onto Interstate 93, northbound, Madruga set the

cruise control and apparently fell asleep or otherwise stopped

paying attention to the road. The vehicle drifted into the break-

down lane and rear-ended the plaintiffs at a speed of about sixty

miles per hour.

The Massachusetts State Police quickly arrived at the

accident scene, where Madruga failed a number of field sobriety

tests, including a breathalyzer test. He was arrested for driving

a vehicle under the influence of alcohol.

The plaintiffs were taken to the hospital. Chinh's

injuries were relatively minor, but Luc suffered serious injuries

and was hospitalized for more than seventy days.

B. Procedural History

Plaintiffs filed this case in the district court, based

on complete diversity of the parties and an amount in controversy

in excess of $75,000. Plaintiffs originally sued both Madruga and

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Demelo, as well as the numerous corporate and business entities

that owned or operated the Roxy and the Hotel.1 Madruga and Demelo

were subsequently dismissed from the case. The Roxy moved to

dismiss one of the claims against it2 and the Hotel moved to

dismiss all thirteen claims against it. The Roxy argued that

Massachusetts does not recognize the claim asserted by plaintiffs

based on the Roxy's "method of operations." The Hotel argued that

Massachusetts recognized no claims under which it could be held

liable for the Roxy's serving of alcohol to Madruga. After a

hearing, the district court granted the Roxy's motion and part of

the Hotel's motion, leaving two claims against the Hotel intact,

but dismissing eleven others. After discovery, both defendants

moved for summary judgment, which the district court granted.

1
The Hotel and the Roxy are separate businesses, owned by
different companies. The Hotel defendants include Wyndham
International, Inc., Wyndham Management Corp., CHC Lease Partners,
Wyndham International Operating Partnership, Patriot American
Hospitality Partnership, Patriot American Hospitality, Inc.,
Patriot American Hospitality Operating Co., and Patriot American
Hospitality General Partnership. The Roxy is owned and operated by
the Boston Ballroom Corporation.
2
The second claim against the Roxy was based on a traditional
theory of negligence, often referred to as "dram shop liability."
Under this theory, a bar or tavern may be liable for the wrongful
or injurious actions of a patron if it served alcohol to that
patron after it knew, or should have known, that the patron was
already intoxicated. Adamian v. Three Sons, Inc., 233 N.E.2d 18,
20 (Mass. 1968). This claim was dismissed due to insufficient
evidence of any Roxy employee serving Madruga alcohol after they
knew, or should have known, that he was intoxicated.

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 Plaintiffs appealed the dismissal of the "method of

operations" claim against the Roxy and four claims against the

Hotel.3

II.

A. Standard of Review

We review the district court's grant of a motion to

dismiss for failure to state a claim de novo, while "taking as true

the well-pleaded facts contained in the complaint and drawing all

reasonable inferences therefrom in the plaintiff's favor." Garrett

v. Tandy Corp., 295 F.3d 94, 97 (1st Cir. 2002). With this

"plaintiff-friendly" approach in mind, we may affirm the dismissal

only if the facts lend themselves to no viable theories of

recovery. Id. However, we are not limited to the reasoning

offered by the district court, but "may affirm an order of

dismissal on any basis made apparent by the record." Ramos-Pinero

v. Puerto Rico, 453 F.3d 48, 51 (1st Cir. 2006).

Also, as a federal court considering state law claims, we

must apply the state's law on substantive issues and "we are bound

by the teachings of the state's highest court." N. Am. Specialty

3
After considering the Hotel's motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the district court
allowed two claims against the Hotel to proceed. These were both
agency claims alleging that the Roxy functioned as an agent of the
Hotel, and that the Hotel could be held vicariously liable for its
agent's actions. Those claims were later dismissed in response to
the Hotel's motion for summary judgment. The agency claims are not
at issue in this appeal; thus, all four claims at issue here were
dismissed pursuant to a 12(b)(6) motion.

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Ins. Co. v. Lapalme, 258 F.3d 35, 37-38 (1st Cir. 2001). If the

state's highest court, here the Supreme Judicial Court ("SJC"), has

not definitively addressed a question, we may consult other sources

as we "make an informed prophecy" about what rule the state courts

would likely follow. Id. at 38. That said, however, we generally

make such prophecies only on interstitial questions. As a federal

court, we will not create new rules or significantly expand

existing rules. We leave those tasks to the state courts. See

Jordan v. Hawker Dayton Corp., 62 F.3d 29, 32 (1st Cir. 1995)

("[P]laintiff chose a federal, rather than a state forum,

presumably cognizant of this court's statement that 'litigants who

reject a state forum in order to bring suit in federal court under

diversity jurisdiction cannot expect that new trails will be

blazed.'" (quoting Ryan v. Royal Ins. Co. of Am., 916 F.2d 731, 744

(1st Cir. 1990))); see also Douglas v. York County, 433 F.3d 143,

149 (1st Cir. 2005) ("It is not our role to expand [state] law;

that is left to the courts of [the state]."); Carreiro v. Rhodes

Gill & Co., 68 F.3d 1443, 1448 (1st Cir. 1995). With these

principles guiding us, we address first the claim against the Roxy,

and then turn to the claims against the Hotel.

B. Claim Against the Roxy

Plaintiffs have appealed the dismissal of their so-called

"method of operation" claim, wherein they urge us to recognize a

new theory of liability for bar or tavern owners. We first survey

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the applicable Massachusetts tort liability law and then analyze

how this novel claim might fit within existing law.

In 1968, the SJC held that a person injured in a car

accident, caused by an intoxicated driver, could have a cause of

action against the owner of the bar where that driver was served.

Adamian v. Three Sons, Inc., 233 N.E.2d 18, 20 (Mass. 1968).

However, the court explicitly stated that liability would only

attach where the bar could have reasonably foreseen the risk of

serving an "already intoxicated" patron. Id. Thus, the SJC

adopted the rule that "a tavern keeper does not owe a duty to

refuse liquor to an intoxicated patron unless the tavern keeper

knows or reasonably should have known that the patron is

intoxicated." Cimino v. Milford Keg, Inc., 431 N.E.2d 920, 924

(Mass. 1982).4 There can be no negligence on the part of the

tavern owner unless he serves alcohol to a person "who already is

showing discernible signs of intoxication." Vickowski v. Polish

Am. Citizens Club, 664 N.E.2d 429, 432 (Mass. 1996). That visible

intoxication provides a basis for inferring the requisite knowledge

4
Massachusetts courts have applied the same rule to "social
hosts." When a private person invites others into his or her home,
the host may be liable for the negligence of a guest only if the
host "has served or provided liquor to an intoxicated guest."
Ulwick v. DeChristopher, 582 N.E.2d 954, 957 (Mass. 1991). Thus,
regardless whether alcohol is served in a commercial or private
setting, negligence is tied to knowing service of an already
intoxicated person.

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of intoxication, with its attendant foreseeable risks, on the part

of the tavern owner.

Thus, a plaintiff who shows that the patron in question

was actually intoxicated has not done enough to establish

liability. The evidence must also show that the intoxication was

apparent, or should have been apparent, to the server prior to

service of the last alcoholic drink. Id. Where a patron “was

exhibiting signs of intoxication before he or she was served a last

alcoholic drink (or drinks),” id., there is circumstantial evidence

of the tavern owner's knowledge that he was serving an already-

intoxicated person. This type of circumstantial evidence enables

plaintiffs to carry their burden without the difficulty of

providing direct evidence of the tavern keeper's knowledge. See,

e.g., Makynen v. Mustakangas, 655 N.E.2d 1284, 1287 (Mass. App. Ct.

1995) (no liability without evidence of patron’s obvious

intoxication prior to service of his last drink); Kirby v. Le

Disco, Inc., 614 N.E.2d 1016, 1018 (Mass. App. Ct. 1993) (same).

The plaintiffs seek to offer a different type of

circumstantial evidence to show that the bar knew, or should have

known, that it was serving intoxicated patrons, thereby creating

foreseeable risks to those patrons and third parties. They contend

that the Roxy's "method of operation" provides a basis for

inferring such knowledge. They emphasize that the Roxy was managed

in a way that ensured maximum alcohol sales with minimal knowledge

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on the part of the bartenders and waiters about the level of

intoxication of any particular patron. They point to the low ratio

of servers to customers (one server for every sixty customers), the

atmosphere (dark, loud, and crowded), and the availability of

alcoholic beverages from multiple sales points. A given customer

could purchase a drink from any of the sixteen bartenders or six

wait staff, and could purchase different drinks from each of these

servers throughout the evening. Thus, plaintiffs allege, it is

possible for a patron to become heavily intoxicated without a

single server having sold that person more than one drink, and,

consequently, without realizing the risk of over-serving that

patron.

Furthermore, the plaintiffs claim that this situation is

exacerbated by the inability of Roxy servers to implement the good

serving practices taught at their training sessions. The Roxy

required each server to take a course called "Training for

Intervention Procedures," ("TIPS") which is designed to decrease

the likelihood of over-serving customers by teaching servers about

visual cues of intoxication, controlling customers' rate of

consumption, keeping track of the strength of drinks served, and

advising customers to order food while drinking. The plaintiffs

allege that Roxy's wait staff could not possibly apply the

procedures taught during TIPS training because there were too many

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customers for each server and the atmosphere made it difficult for

a server to observe a given customer's behavior.

The plaintiffs also contend that the Roxy had notice of

its allegedly dangerous practices because of numerous past

incidents involving negligent or criminal activity by Roxy patrons.

For example, the plaintiffs note that Massachusetts notified the

Roxy whenever someone was convicted of driving while intoxicated

and informed the police that they received their alcohol from the

Roxy. There were five such reports during the five months prior to

the plaintiffs' car accident.

Based on the police reports and other evidence that its

patrons sometimes became excessively intoxicated, the plaintiffs

claim that the Roxy's method of operation created sufficient notice

of the likely risks that intoxicated persons purchasing alcoholic

drinks at their premises would harm themselves or others.

Therefore, to prevent the bar's size, commercial structure, and

atmosphere from sheltering it from liability for the negligent

driving of one of its patrons, they ask us to reverse the district

court's dismissal and reinstate the method of operation claim

against the Roxy.

Massachusetts courts have not yet recognized the theory

of liability proposed by the plaintiffs.5 The case of Tobin v.

5
Plaintiffs have submitted a letter pursuant to Federal Rule
of Appellate Procedure 28(j) citing a recent decision by the
Massachusetts Supreme Judicial Court in support of their theory of

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Norwood Country Club, Inc., 661 N.E.2d 627 (Mass. 1996), relied on

by the plaintiffs, is not to the contrary. There, a country club

was held liable after a minor became intoxicated at a private

function and injured herself. The club had supplied a bartender

and alcohol. Id. at 629-30, 633-34. In holding the club liable,

the SJC pointed to factors such as the bartender's location, his

inability to monitor who was receiving the drinks he sold, and the

absence of a club manager to monitor the alcohol intake of the

guests. Id. at 633-36. There was no direct evidence that the

bartender (or other club employees) had served alcohol to the

minor. While these factors do describe a "method of operation,"

they were cited for the limited purpose of showing that the club

had caused the minor's alcohol consumption, "in the absence of an

actual 'hand to hand' transaction or its equivalent." Id. at 632.

In cases involving minors, the critical fact is the

service of alcohol to an under-aged person. Such service itself

liability. In Sheehan v. Roche Bros. Supermarkets, Inc., 863
N.E.2d 1276, 1284 (Mass. 2007), the SJC held that evidence of a
business's "method of operation" could be used to satisfy the
notice requirement in a "slip and fall" case. The court explained
that a "plaintiff satisfies the notice requirement if he
establishes that an injury was attributable to a reasonably
foreseeable dangerous condition on the owner's premises that is
related to the owner's self-service mode of operation." Id. at
1283. However, Sheehan was limited to premises liability claims,
involving unsafe conditions on an owner's property, and did not
establish a generalized "method of operation" theory for all
negligence claims. See id. at 1280, 1286-87. This is not a
premises liability case. Given our inability to expand or alter
state law, we cannot rely on Sheehan to adopt the new theory
proffered by plaintiffs.

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can be the basis for liability. In cases involving adults, a

plaintiff must show both service and knowledge of the patron's

intoxication. Tobin says nothing about use of a "method of

operation" as circumstantial evidence of the tavern keeper's

knowledge of an adult customer's intoxication.

Whatever the force of plaintiffs' "method of operation"

theory of liability (and we make no judgment about it), our role as

a federal court hearing a state law claim is circumscribed. The

plaintiffs may be correct that Massachusetts would want to prevent

the sort of commercial behavior engaged in by the Roxy. Thus far,

however, the state courts have repeatedly reaffirmed the rule

originally articulated in Adamian: a defendant tavern owner may not

be liable unless his tavern served a patron who was already visibly

intoxicated, and hence the tavern owner knew or had reason to know

of the risk involved in such service. Any alterations to this rule

must come from either the Massachusetts legislature or the state

courts. We are, therefore, compelled to affirm the district

court's dismissal of the method of operations claim against the

Roxy.

C. Claims Against the Hotel

The district court dismissed four claims against the

Hotel, pursuant to Federal Rule of Civil Procedure 12(b)(6), for

failure to state a cognizable claim. These claims sought to impose

primary liability on the Tremont Hotel based on general principles

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of tort law, including three provisions in the Restatement (Second)

of Torts and principles of negligent entrustment and negligent

supervision. Plaintiffs reassert these generalized principles on

appeal and request that we reinstate the four claims, despite the

absence of any Massachusetts cases recognizing these theories of

liability in similar circumstances. We briefly summarize each of

the four claims, as well as the most closely related Massachusetts

case law. We then address the viability of the four claims

collectively, which suffer from a common flaw.

Plaintiffs' first and fourth claims against the Hotel are

premised on the theory that a lessor may be responsible for the

negligent actions of his tenant, if the lessor was aware of the

tenant's use of the property and the risks associated with that

use. In support of this theory, plaintiffs point to § 379A of the

Restatement6, which describes claims against lessors based on the

actions of their lessees, and to the doctrine of negligent

6
Section 379A of the Restatement of Torts states:
A lessor of land is subject to liability for physical
harm to persons outside of the land caused by activities
of the lessee or others on the land after the lessor
transfers possession if, but only if,
(a) the lessor at the time of the lease consented
to such activity or knew that it would be carried
on, and
(b) the lessor knew or had reason to know that it
would unavoidably involve such an unreasonable
risk, or that special precautions necessary to
safety would not be taken.
Restatement (Second) of Torts § 379A (1965).

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entrustment7, which applies generally to owners of personal

property, although they have not identified any Massachusetts cases

that support this theory of liability.

Plaintiffs argue that the Hotel can be held liable under

this theory because the Hotel knew, at the time the lease was

signed, that the Roxy would serve alcohol and had grounds to know

that there would be an unreasonable risk of over-serving patrons.

More specifically, plaintiffs point to a diagram of the Roxy's

layout and the nature of the business. They also note that after

the Roxy opened, and during the course of its nearly twenty-year

existence, the Hotel received reports from the owners of the Roxy

about various incidents that were investigated or responded to by

the police. Additionally, plaintiffs cite the lease agreement as

evidence of the Hotel's knowledge that the Roxy's operations would

create a risk of over-service. The lease required the Roxy to

comply with its liquor license, to obtain liquor liability

insurance, to indemnify the Hotel for any liability resulting from

the sale of alcohol at the Roxy, and to notify the Hotel of any

liquor license (or other legal) violations by the Roxy. The Hotel

7
In Massachusetts, the common law doctrine of negligent
entrustment (and its related theory of negligent supervision) has
been used primarily in cases involving dangerous instrumentalities,
such as cars and weapons. In such cases, the elements of negligent
entrustment are: control over the instrumentality, entrustment of
(or permission to use) the instrumentality to another, and
knowledge that the other is incompetent or incapable of using the
instrumentality with due care. Miranda v. Anderson, No. BACV
2005140, 2006 WL 2006134, at *3 (Mass. Super. Apr. 6, 2006).

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also reserved the right to inspect the premises, to approve the

floor plan for the Roxy, to impose rules and regulations on the

Roxy, and to evict the Roxy if problems arose which were not

rectified. According to the plaintiffs, all of these lease

provisions, taken together, show that the Hotel was aware of the

risks created by the Roxy's alcohol sales.

Plaintiffs' second and third claims against the Hotel are

based on their related theory that the Hotel exercised control over

the Roxy's business practices, and thus can be held independently

liable for the risks created by those practices. Here, they point

to § 3158 and § 3189 of the Restatement, which deal with "special

8
Section 315 of the Restatement of Torts states:
There is no duty to control the conduct of a third person
[e.g., the Roxy] as to prevent him from causing physical
harm to another [e.g., plaintiffs] unless
(a) a special relation exists between the actor [e.g.,
the Hotel] and the third person [e.g., the Roxy]
which imposes a duty upon the actor to control the
third person's conduct, or
(b) a special relation exists between the actor and the
other which gives to the other a right to
protection.
Restatement (Second) of Torts § 315 (1965).
9
Section 318 of the Restatement of Torts states:
If the actor [e.g., the Hotel] permits a third person
[e.g., the Roxy] to use land or chattels in his
possession otherwise than as a servant, he [the Hotel]
is, if present, under a duty to exercise reasonable care
so to control the conduct of the third person [the Roxy]
as to prevent him from intentionally harming others [the
plaintiffs] or from so conducting himself as to create an
unreasonable risk of bodily harm to them, if the actor
[the Hotel]
(a) knows or has reason to know that he has the ability
to control the third person [the Roxy], and

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relationships" between a defendant and a third party. Plaintiffs

note that these Restatement provisions have been recognized as

describing viable claims in Massachusetts. See, e.g., Medina v.

Pillemer, No. 04-0290-H, 2005 WL 3627226, at *5 (Mass. Super. Dec.

23, 2005) (noting four general types of "special relationships"

that have given rise to third-party liability in Massachusetts);

Davis v. United States, 340 F. Supp. 2d 79, 91 (D. Mass. 2004)

("Massachusetts law would likely impose a duty on a private person

to protect another from the wrongful acts of third parties based

'on the existence of a special relationship between the negligent

person and the person or entity on whom it is sought to impose

liability'." (quoting Mosko v. Raytheon Co., 622 N.E. 2d 1066, 1070

(Mass. 1993))). Plaintiffs argue that the Hotel and the Roxy had

a special relationship, based on the terms of the lease, and that

this relationship permitted, and indeed required, the Hotel to

control the Roxy's actions.

Whatever the merits abstractly of these theories of

liability against the Hotel, they fail in this case because each of

them requires a showing that the Roxy behaved in an unreasonably

risky or negligent manner. Restatement § 379A states that a

landlord may only be liable if he knew, or had reason to know, that

the tenant's activities would "unavoidably involve such an

(b) knows or should know of the necessity and
opportunity for exercising such control.
Restatement (Second) of Torts § 318 (1965).

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unreasonable risk." Similarly, § 315 of the Restatement provides

for liability when an actor has a "special relationship" with

another, which "imposes a duty upon the actor" to prevent the third

person from "causing physical harm" to others. (Although § 315

does not expressly require a showing that the third party was

negligent, such a requirement is implicit, and has been recognized

by Massachusetts courts. See infra.) Section 318 of the

Restatement provides for liability for landowners who allow others

to use their land for activities that "create an unreasonable risk

of bodily harm" to third persons. Finally, as to its negligent

entrustment and supervision claims, the plaintiffs themselves

allege that a landlord's duty is to "reasonably mitigate or reduce

the foreseeable risk of harm" caused or created by "a pattern of

inappropriate, negligent conduct." Each of these theories, then,

requires not only that the defendant either controls or has a

“special relationship” with the third-party actor (e.g., the Roxy),

but also that the third-party actor behaved in an unreasonably

risky manner. As we explained above, Massachusetts courts have

unequivocally stated that a tavern-keeper does not create an

unreasonable risk to patrons or others unless he serves alcohol to

a patron who is visibly intoxicated. Therefore, without any such

evidence (and there is none in this case), the plaintiffs have not,

and cannot, show that the Roxy engaged in the requisite

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unreasonably risky behavior that would create the possibility of

the Hotel’s liability.10

A closer look at a valid § 315 claim demonstrates the

necessity of identifying negligent or wrongful behavior by the

third party.11 In presenting their § 315 claim (involving a special

relationship between an actor (the Hotel) and a third party (the

Roxy)), the plaintiffs cite to Davis, 340 F. Supp. 2d at 91, which

acknowledged that Massachusetts courts had recognized this theory

of liability. Davis specifically states, however, that the

relevant duty is "to protect another from the wrongful acts of

third parties based on the existence of a special relationship

between the negligent person and the person or entity on whom" the

10
As noted above, see supra note 2, the plaintiffs are not
pursuing on appeal a claim of vicarious liability, which would
require evidence of an agency (or master-servant) relationship
between the Hotel and the Roxy. In a vicarious liability claim,
the third party acts on behalf of, or under the direction of, the
defendant. See Kansallis Fin. Ltd. v. Fern, 659 N.E.2d 731, 733-34
(Mass. 1996) (explaining that vicarious liability applies in the
context of agency relationships, specifically partnerships (where
each partner is an agent of the entity) and employer-employee
relationships (where the employee is an agent of the employer), and
the particular elements of liability are determined by the nature
of the agency relationship). Plaintiffs do not claim here that the
Roxy was an agent of the Hotel, but rather that the Hotel had
sufficient knowledge of the Roxy’s business practices as to be
culpable for declining to intervene therein.
11
We use the § 315 claim as our example because it is the only
theory of liability which does not explicitly require a
demonstration that the third party behaved negligently or in an
unreasonably risky manner. As our discussion illustrates, even
without that express requirement, Massachusetts courts have
construed this theory of liability to require such a showing.

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duty is imposed. Id. (emphasis added) (citation and internal

quotation marks omitted). The court's use of "wrongful" and

"negligent" to describe the third party action indicates that even

if a § 315 cause of action exists, the duty thereby recognized is

one of preventing or stopping negligence. See also Atwood v. Cape

Cod Hosp., 770 N.E.2d 1002, 1002 (Mass. App. Ct. 2002)(holding that

a negligent entrustment claim fails, as a matter of law, where the

third party had not behaved negligently). Therefore, in the

absence of a plausible theory of negligent conduct on the part of

the Roxy, the Hotel cannot be liable pursuant to the theories

advanced by plaintiffs.

In an effort to avoid this conclusion, plaintiffs rely on

two cases — Krueger v. Fraternity of Phi Gamma Delta, Inc., No.

004292G, 2001 WL 1334996 (Mass. Super. May 18, 2001), and Jean W.

v. Commonwealth, 610 N.E.2d 305, 315 (Mass. 1993) — to demonstrate

that Massachusetts courts have been willing "to apply basic tort

principles . . . to fact patterns that have no direct precedent."12

In Krueger, a trial court permitted a claim against a landlord

dormitory owner to go forward, where the tenant (a college

fraternity) had served alcohol to a minor, who later died. The

court agreed that a landlord typically would not have a duty to

protect students from underage drinking. However, the defendant

12
Plaintiffs also rely on Tobin, 661 N.E.2d 627. We find that
decision unhelpful, for the reasons described above and therefore
do not discuss it further.

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also held a dormitory license and city regulations required that

licensees be responsible for "ensuring that minors are not served

alcoholic beverages." Krueger, 2001 WL 1334996, at *5. Therefore,

in Krueger, the cause of action was based on the landlord's duty,

pursuant to the license, to prevent its tenants from serving

alcohol to minors. Here, nothing in either the lease or any

publicly granted license imposes a duty on the Hotel to control or

monitor the tenant's behavior vis-a-vis third-party patrons.

Krueger therefore does not support the existence of a relevant

cause of action.

In Jean W., the "special relationship" that had not

previously been recognized was one of physical custody or control

over a person. 610 N.E.2d at 315. The third party who injured the

plaintiffs was a convicted murderer who had been erroneously

released, due to a clerical mistake, from prison and placed on

parole. While on parole, he was required to regularly report to a

state parole officer. Id. at 306-07. Given that the state had a

custodial and supervisory relationship with the convict, the court

recognized that the plaintiffs could state a claim for negligence

against the state. Id. at 315.

Here, although the Hotel had some ability to influence

the Roxy's actions, it did not remotely have the kind of control

over the Roxy that the Commonwealth in Jean W. had over a prisoner

in its custody. The SJC's willingness to acknowledge the

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possibility of a cause of action in that case does not permit us to

go beyond the boundaries of existing state law here.

III.

Plaintiffs have also asked that we certify the questions

raised in this appeal to the Massachusetts SJC, giving that court

the opportunity to evaluate whether the alleged causes of action

are viable. We preliminarily denied their request prior to oral

argument, but reserved the possibility of reconsideration.

We now decline to certify any of the legal questions

raised in this case to the SJC. The claims raised here should be

raised in the state courts in the first instance. Id. ("Plaintiff

here brought suit in the federal forum, and as we said in Cantwell,

'one who chooses the federal courts in diversity actions is in a

peculiarly poor position to seek certification." (quoting Cantwell,

551 F.2d at 880)); see also Porter v. Nutter, 913 F.2d 37, 41 (1st

Cir. 1990) ("If we are unwilling to stretch state precedents to

reach new frontiers, a litigant [], who deliberately 'chose to

reject a state-court forum in favor of a federal forum . . . is in

a perilously poor position to grumble' about our stodginess. We

may, perhaps, be unadventurous in our interpretation of [state]

law, but a plaintiff who seeks out a federal venue in a diversity

action should anticipate no more." (internal citations omitted)

(quoting Kassell v. Gannett Co., 875 F.2d 935, 950 (1st Cir.

1989))).

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 Furthermore, as to the Hotel, we have held that even if

a viable theory of liability existed, those claims must fail

without a plausible allegation of negligence against the Roxy.

Certification would be especially inappropriate where the legal

question was effectively mooted by a factual defect in the

plaintiffs' case.

IV.

For the reasons explained above, we affirm the district

court's dismissal of claims against both the Roxy and the Hotel.

The plaintiffs' motion to certify questions to the SJC is denied.

So ordered.

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