United States District Court, D. Maine
ORDER ON THIRD-PARTY DEFENDANT'S MOTION FOR
TORRESEN UNITED STATES CHIEF DISTRICT JUDGE
me is the Town of Orono Police Department's
(“OPD”) motion for summary
judgment. (ECF No. 82.) Campus Crest at Orono, LLC
(“Campus Crest”) sued the OPD
for breach of contract and implied contractual
indemnification. Third-Party Complaint (ECF No. 30.) The OPD
argues that it cannot be liable for either count because it
had no contract with Campus Crest. For the following reasons,
the motion for summary judgment is GRANTED.
following account is taken from the parties' statements
of material facts, credited only to the extent that the facts
are either admitted or supported by the record in accordance
with Local Rule 56. I take the facts in the light most
favorable to the non-movant.
Crest owns and operates an apartment complex called The Grove
in Orono, Maine. SMF ¶¶ 2-3 (ECF No. 87). After The
Grove opened in 2012, there were a number of large gatherings
that required a police response. SMF ¶ 4. The OPD warned
Campus Crest of an Orono ordinance under which the OPD could
seek reimbursement as a penalty for large gatherings that
required multiple police agencies to respond. SMF ¶ 5;
see generally Ordinances, Town of Orono, Ch. 20 art.
II §§ 20:26-20:32 (2017). OPD Chief Joshua Ewing
stated that the warning to Campus Crest was:
Because you are creating an environment where these large
gatherings seem to take place, we're telling you now if
one takes place and we have to come up here and we have to
get other agencies to help us respond to deal with that
issue, we're gonna bill you for all of those officers who
come up here. . . . It wasn't like we were saying, hey,
let's make an agreement. We are saying, we're going
to enforce our ordinance against you if we're required to
come up here and deal with a large event.
Ewing Dep. Tr. 23:8-19 (ECF No. 80-1). The OPD billed Campus
Crest for multiple instances when the OPD and police agencies
from surrounding towns had to respond to large gatherings.
SMF ¶¶ 5-6. The OPD would ask each area agency that
sent officers to provide it with an invoice, and the OPD
billed Campus Crest the total amounts. Ewing Dep. Tr.
2013, before the start of the 2013-2014 school year, the OPD
suggested to Campus Crest as an alternative approach that the
OPD could provide special details to The Grove. The assigned
officers would be on site for shifts on specified weekends at
the start of the 2013-2014 academic year. SMF ¶ 7. They
would enforce alcohol- related laws and deter future large
gatherings. SMF ¶ 7. In return, Campus Crest would pay
for those officers' time according to their hourly rate.
Ewing Dep. Tr. 22:1-22. Campus Crest agreed, and the special
details were implemented. SMF ¶ 8. In the fall of 2013,
there were no significant problems at The Grove requiring a
large police response. SMF ¶ 9.
August 7, 2014, Chief Ewing emailed Campus Crest about
arranging special details again for the first few weekends of
the 2014-2015 academic year. SMF ¶ 10. Chief Ewing's
email provided an estimate for the cost of special detail
shifts on August 31, September 4-6 (Thursday-Saturday), and
September 11-13 (Thursday-Saturday), 2014. Ewing Dep. Ex. 7
(ECF No. 80-4). Each special detail would include a
four-officer patrol from 6:00 p.m.-2:00 a.m., with the
officers compensated at an average hourly rate of $45, for a
total of approximately $1, 440. Ewing Dep. Ex. 7. Chief Ewing
asked Campus Crest to “[p]lease let me know as soon as
possible, so that we can request assistance from other
agencies in a timely fashion.” Ewing Dep. Ex. 7.
Ewing did not receive a response to this email. SMF ¶
10. Chief Ewing believed, based on conversations with Campus
Crest, that Campus Crest did not think it was necessary to
have additional alcohol details during the fall of 2014
because the fall of 2013 had gone smoothly. SMF ¶ 11.
Ewing nevertheless assigned two officers to foot patrol at
The Grove on the evening of Saturday, September 6, 2014. SMF
¶ 12. These officers observed a crowd form at The Grove
between two apartment buildings. SMF ¶ 13. Sometime
after midnight on September 7, 2014, the onsite manager at
The Grove approached the officers and asked them to disperse
the crowd. SMF ¶ 15. The officers called for assistance
from additional officers, including from the police agencies
of neighboring towns. SMF ¶ 16. Officers from at least
six police agencies responded. SMF ¶ 17.
Monday, September 8, 2014, Chief Ewing forwarded his August
7, 2014 email to Kevin Sealey, the Campus Crest Vice
President of Operations, and Mr. Sealey responded the same
afternoon, approving the special details as Ewing had
proposed. SMF ¶ 21. Chief Ewing then additionally
recommended, via email, a patrol for the evenings of
September 18-20, 2014, and Mr. Sealey responded on September
9, 2014, “I do approve the additional patrols for next
weekend as well as this coming weekend.” Ewing Dep. Ex.
Town of Orono billed Campus Crest for the overtime hours of
six OPD officers who responded to the request to disperse the
crowd in the early hours of September 7, 2014. SMF ¶
Chief Ewing stated the intent of the OPD in making this
invoice was to penalize Campus Crest, pursuant to the Orono
ordinance. Ewing Dep. Tr. 34:19-25. Mr. Sealey characterized
the bill as the “invoice for the special service detail
through the Town of Orono for September 6th.” Sealey
Dep. Tr. 121:25-122:1. It is not disputed that Campus Crest
paid this bill. SMF ¶ 38.
Crest raises the same denial to several of the Town of
Orono's facts, asserting that from 2012-2014, it met with
the OPD and identified specific dates where additional
security would be provided for a fee. See SMF
¶¶ 5-6, 8, 11-13, 16, 21, 23; see also SMF
¶ 30 (repeating the same assertion as its first
additional fact). Campus Crest supports its assertion with
citation to Mr. Sealey's deposition transcript, in which
he merely says that Campus Crest and the OPD had agreed on
specific dates to have police on the property. This testimony
never identifies those specific dates nor the fee or payment
structure by which Campus Crest agreed to compensate the OPD.