Full opinion text
ORDER AFFIRMING RECOMMENDED AND MEMORANDUM DECISIONS AND ORDERS OF THE MAGISTRATE JUDGE HORNBY, District Judge. I. Motions to Strike and Motion for Summary Judgment The United States Magistrate Judge filed with the court on October 21, 2002, with copies to counsel, his Memorandum Decision on Parties’ Motion to Strike and Recommended Decision on Defendant’s Motion for Summary Judgment. The plaintiff filed an objection to the Recommended Decision on November 8, 2002, its motion for reconsideration of the recommendations on November 14, 2002, and its amended motion for leave to file supplemental appendix and supplemental statement of facts on November 14, 2002. The Magistrate Judge issued his Memorandum Decision on Plaintiffs Motions for Reconsideration and for Supplementation of the Record on December 17, 2002. I agree with the Magistrate Judge’s decision denying the plaintiff leave to file supplemental appendix and supplemental statement of facts so far as the motion to reconsider directed to him is considered; and, after de novo review, I adopt the Magistrate Judge’s decision as my own in determining the record for purposes of my review of the objections to his Recommended Decision. Under the clearly erroneous review standard, I Affirm his rulings on the motions to strike. Upon de novo review, I Affirm the Magistrate Judge’s Recommended Decision on the Motion for Summary Judgment as amended by the Magistrate Judge’s Memorandum Decision on motions for reconsideration as follows: 1. The plaintiffs motions to strike are Granted In Part and Denied In Part. 2. The defendant’s motion to strike is Granted. 3. The defendant’s motion for summary judgment is: (i) Granted with respect to Counts I and VI of the Amended Complaint and Plaut’s Eighth Affirmative Defense; (ii) Granted with respect to Counts III and IY as to all claims, except for that pertaining to Statement No. 1; (Hi) Granted with respect to Count V, except as it pertains to the period from July 18, 2001 through August 23,2001; and (iv) otherwise Denied. As to all Counts of the Amended Complaint that survive summary judgment, the Court Declares and Adjudges that: 1. Plaut shall in no event be hable to Uncle Henry’s except for actual damages; 2. Plaut shall in no event be liable for damages in an amount in excess of the full amounts paid or payable under the statement of work (“SOW”) (ie., $645,100), plus reasonable attorney fees up to twenty percent of the amount reflected in the SOW (ie., $129,020); and 3. Plaut shall in no event be liable to Uncle Henry’s for consequential, incidental, special or indirect damages (including loss of profits or business opportunities), damages for loss of or damage to recorded data, or damages suffered by third parties. The following remain for trial (in addition to Plaut’s counterclaims, as to which no dispositive motion was filed): (i) Count II of the Amended Complaint; (ii) To the extent they bear on Statement No. 1 only, Counts III and IV of the Amended Complaint; and (iii) To the extent it pertains to the period from July 18, 2001 through August 23, 2001, Count V of the Amended Complaint. II. Dependant’s Motion to Amend The Magistrate Judge issued his Recommended Decision on Defendant’s Motion to Amend on October 21, 2002. The time within which to file objections expired on November 7, 2002, and no objections have been 'filed. The Magistrate Judge notified the parties that failure to object would waive their right to de novo review and appeal. It is therefore Ordered that the Recommended Decision of the Magistrate Judge is hereby Adopted. The defendant’s motion to amend paragraph 43 of its Answer is Granted. The defendant is directed to file and serve forthwith an Amended Answer and Counterclaim limited to an amendment of paragraph 43 of the Answer, as proposed in its motion. III. Dependant’s Motion to Exclude Testimony No response has been filed to defendant’s Motion to File Additional Memorandum and Incorporated Memorandum in Support of Motion to Exclude Testimony of Plaintiffs Expert Raymond Neveau. The motion is Granted. Ruling on the defendant’s motion to exclude testimony is Reserved. It is Ordered that at the final pretrial conference, counsel shall inform the Court which experts remain in controversy following these summary judgment rulings and any further discussion between counsel. So Ordered. UNCLE HENRY’S INC, Plaintiff v. PLAUT CONSULTING INC., Defendant MEMORANDUM DECISION ON PARTIES’ MOTIONS TO STRIKE AND RECOMMENDED DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DAVID M. COHEN, United States Magistrate Judge. Defendant Plaut moves for summary judgment as to Counts I and III-VI of plaintiff Uncle Henry’s Inc.’s (“Uncle Henry’s”) amended complaint and as to its own eighth affirmative defense, and partial summary judgment as to any remaining counts of Uncle Henry’s complaint, in this diversity action arising from a failed attempt to redesign Uncle Henry’s web site. Defendant’s SJ Motion at 1; Plaintiffs First Amended Complaint (“Complaint”) (Docket No. 10); Answer and Counterclaims (“Answer/Counterclaims”) (Docket No. 12) at 16. Incident thereto, each party moves to strike portions of the other’s evidence and/or statements of material fact. Plaintiffs Objections to Defendants’ Summary Judgment Evidence (“Plaintiffs First Motion To Strike”) (Docket No. 40); Defendant’s Motion To Strike Statement Nos. 60-65 of Plaintiffs Genuine Issues of Material Fact (“Defendant’s Motion To Strike”) (Docket No. 61); Plaintiffs Objections to Defendant’s New Evidence: Tabs 43-67 (“Plaintiffs Second Motion To Strike”) (Docket No. 66). For the reasons that follow, I grant in part and deny in part the plaintiffs motions to strike, grant the defendant’s motion to strike and recommend that the defendant’s motion for summary judgment be granted in part and denied in part. I. Summary Judgment Standards Summary judgment is appropriate only if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In this regard, ‘material’ means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, ‘genuine’ means that ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.’ ” Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmov-ing party and give that party the benefit of all reasonable inferences in its favor. Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir.2000). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the non-movant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted). II. Factual Context A. Motions To Strike As a preliminary matter, before sketching the contours of the facts cognizable on summary judgment, I address the parties’ motions to strike. 1. Plaintiff’s First Motion To Strike (Docket No. 40) I rule as follows on the Plaintiffs First Motion To Strike: 1. Objection to a pleading found at Tab 3 of the defendant’s appendix of documents on the ground that pleadings are not proper summary judgment evidence, see Plaintiffs First Motion To Strike ¶ 1; see also Answer/Counterclaims, Tab 3 to Appendix of Documents in Support of Statement of Undisputed Material Facts (“Defendant’s First Appendix”), filed with Defendant’s SMF: Overruled. While an unverified pleading, standing alone, is not proper summary judgment evidence, Plaut pairs its citations to Tab 3 with citations to Tab 4, in which Uncle Henry’s admits the relevant allegations in its responsive pleading. See Defendant’s SMF ¶¶ 7, 106-08. This is in the nature of an admission, which is proper summary judgment evidence per Fed.R.Civ.P. 56(c). 2. Objection to the entirety of a declaration of William O’Brien found at Tab 5, and to specific paragraphs contained therein, on grounds, inter alia, that the declaration does not state that O’Brien is competent to testify and is not shown to be made on personal knowledge, see Plaintiffs First Motion To Strike ¶¶ 2-10; Declaration of William E. O’Brien (“O’Brien Decl.”), Tab 5 to Defendant’s First Appendix: Sustained in part and overruled in part. Although the O’Brien declaration fails to state that O’Brien is competent to testify or that his statements are made on personal knowledge, that is not per se fatal. The applicable rule, Fed.R.Civ.P. 56(e), requires not that an affiant state these things, but rather that the affidavit “be made on personal knowledge” and “show affirmatively that the affiant is competent to testify to the matters stated therein.” Thus, to the extent a sworn affidavit (such as the O’Brien declaration) clearly can be discerned to flow from personal knowledge of a competent affiant, it may be considered on summary judgment. See, e.g., Keating v. Bucks County Water & Sewer Auth., 2000 WL 1888770 at *4 (E.D.Pa.2000) (noting that, to extent aver-ments in affidavit sworn to be “true and correct to the best of [affiant’s] knowledge, information and belief’ clearly were based on personal knowledge, they were appropriately considered on summary judgment); Murray v. Bath Iron Works Corp., 867 F.Supp. 33, 38 n. 5 (D.Me.1994) (“[I]f it is clear that the affidavit statements are made on the basis of the affiant’s personal knowledge, they satisfy the requirements of Rule 56(e), regardless of a blanket recitation stating otherwise.”); see also, e.g., Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir.2001) (noting that application of Rule 56(e) “requires a scalpel, not a butcher knife. The nisi prius court ordinarily must apply it to each segment of an affidavit, not to the affidavit as a whole.”). Guided by these precepts, I find the following portions of the O’Brien declaration admissible: paragraphs 1-3, 8-9, 11 and 13 and the first two sentences of paragraph 10, and the following inadmissible: paragraphs 4-7, 12 and the last sentence of paragraph 10. 3. Objection to paragraph 13 of the O’Brien declaration on the ground that it does not establish that it was Plaut’s regular practice to make the documents described therein, and objection to the documents in question (Exhibits B-E to the O’Brien declaration) on the grounds that they lack proper authentication, contain hearsay and do not appear to be the type of documents that would be created as part of Plaut’s regular practice, see Plaintiffs First Motion To Strike ¶¶ 11, 15; O’Brien Decl. ¶ 13 & Exhs. B-E thereto: Overruled. To meet the business-records exception to the hearsay rule, a custodian or other qualified witness must show, inter alia, that the document in question was “kept in the course of a regularly conducted business activity, and ... it was the regular practice of that business activity to make” the document in question. Fed. R.Evid. 803(6). By stating that the documents in question “were prepared in the ordinary course of business by Plaut’s project managers” and “have been maintained in the ordinary course of Plaut’s business,” O’Brien Deck 1113, O’Brien adequately establishes that documents of that nature customarily were prepared for projects such as the Uncle Henry’s project. 4. Objection to Exhibit A to the O’Brien declaration (a report of Peter A. Tolusis) on grounds that (i) the entire report is hearsay of a non-party, (ii) to the extent any statements contained therein are attributed to persons other than Tolu-sis, such statements constitute hearsay within hearsay as described by Fed. R.Evid. 805, and (iii) substantial portions of the report are not based on personal knowledge, see Plaintiffs First Motion To Strike ¶¶ 12-14; Report of Peter A. Tolu-sis Regarding the Packing and Shipping of the Computer Equipment Belong[ing] to Uncle Henry’s by Plaut Consulting, Inc. (“Tolusis Report”), attached as Exh. A to O’Brien Deck: Sustained. Although O’Brien authenticates the document in question, see O’Brien Deck ¶¶ 8-11; Fed. R.Evid. 901(b)(1), to the extent it is offered for the truth of the matter asserted (other than a relatively few non-substantive statements of Tolusis that are obviously based on personal knowledge), it does indeed constitute hearsay and, in part, hearsay within hearsay, none of which appears to fit within an exception to the hearsay rule. 5. Objection to the entirety of a declaration of Michael Picard found at Tab 6 on the ground that it is not made under oath or notarized, and to paragraph 9 of the Picard declaration on the ground that it is conclusory and, with respect to members of the Edge Wing team other than himself, not based on personal knowledge, see Plaintiffs First Motion To Strike ¶¶ 16-17; Declaration of Michael N. Picard (“Picard Deck”), Tab 6 to Defendant’s First Appendix: Overruled. Affidavits need not be notarized to be cognizable on summary judgment so long as they are made under penalties of perjury in accordance with 28 U.S.C. § 1746. See, e.g., Peters v. Lincoln Elec. Co., 285 F.3d 456, 475 (6th Cir.2002) (noting, in context of summary judgment, “Peters contends that, because the document was not notarized or dated, it is not a valid ‘affidavit.’ While an ‘affidavit’ is required to be sworn to by the affiant in front of an ‘officer authorized to administer oaths,’ ... 28 U.S.C. § 1746 allows for ‘unsworn declarations under penalty of perjury’ to support any matter that legally requires an affidavit to support it.”). The Picard declaration, in which Pi-card declares the truth of the statements made “under penalty of perjury” and signs “under the pains and penalties of perjury,” Picard Deck, comports with the requirements of 28 U.S.C. § 1746. As to paragraph 9, Picard avers, and there is no reason to doubt, that he has personal knowledge of that (as well as his other) statements. See Picard Deck ¶ 1. Given Picard’s status as the Plaut vice-president who assembled the Uncle Henry’s team, see id. ¶ 7, it is not at all improbable that he would have been in a position to know the team’s intentions. To the extent the statement is conclusory, that alone is insufficient to bar its admission. 6. Objection to document contained at Tab 18 on the ground that it is an unsigned copy of a draft contract, see Plaintiffs First Motion To Strike ¶ 18; Master Agreement for Information Technology Services, Tab 18 to Defendant’s First Appendix: Overruled. The fact that this draft document is unsigned is not in itself surprising or significant; the issue is whether it is properly authenticated. Inasmuch as in its statement of material facts, Plaut cites this document (which is also marked as Deposition Exhibit D 169) in conjunction with testimony of Eric Stauffer authenticating it, the objection is overruled. See Defendant’s SMF ¶ 33; Deposition of Eric P. Stauffer (“Stauffer Dep.”), Tab 16 to Defendant’s First Appendix, at 191. 7. Objection to paragraphs 9 and 10 of a declaration of Michael Pelletier found at Tab 40 to the extent concerning any statements by “Lou” at Atra Van Lines on the ground that such statements are hearsay, see Plaintiffs First Motion To Strike ¶ 19; Declaration of Michael Pelletier (“Pelletier Deck”), Tab 40 to Defendant’s First Appendix: Sustained. These reported statements of third-party “Lou” (or “Lew”) clearly are offered to prove the truth of the matter asserted and fit no discernible exception to the hearsay rule. 8. Objection to paragraphs 3 and 4 of a declaration of Dale Kerester found at Tab 41 to the extent describing contents of an attached letter on the ground that the letter itself is the best evidence of what it says, see Plaintiffs First Motion To Strike ¶ 20; Declaration of Dale C. Kerester Dated August 7, 2002 (“Kerester Deck”), Tab 41 to Defendant’s First Appendix; Letter dated August 30, 2001 from Dale Kerester, Esq. to Edward P. Watt, Esq. (“Kerester Letter”), attached thereto: Sustained. See, e.g., R & R Assocs., Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir.1984) (noting that, although nothing prevents a declarant from testifying as to facts that also happen to be found in a writing, per Fed.R.Evid. 1002 the writing itself is required to “prove the content of a writing”). 9.Miscellaneous objections to Kerester Letter, see Plaintiffs First Motion To Strike ¶¶ 21-24: Overruled. The majority of the passages about which Uncle Henry’s expresses concern are not relied on by Plaut, which cites only two excerpts from the Kerester Letter in two statements of material facts. See Defendant’s SMF ¶¶ 107, 111. Of the two excerpts cited, there is a live controversy only as to one: a paragraph that begins at the bottom of page 3 of the Kerester Letter and runs to the top of page 4, to which Uncle Henry’s objects on the ground that it appears to be based on hearsay rather than Kerester’s personal knowledge. Plaintiffs First Motion To Strike ¶ 24. This excerpt is relied on by Plaut for the proposition that “Ed-geWing, by its counsel, notified Uncle Henry’s that the equipment had been placed in storage at Atra Van Lines, provided Uncle Henry’s with the contact information for Atra, and requested that Uncle Henry’s make arrangements to retrieve the equipment.” Defendant’s SMF ¶ 107. These were all direct notifications/requests by Kerester and thus were within his personal knowledge. 2. Defendant’s Motion To Strike (Docket No. 61) I next turn to, and grant, Plaut’s motion to strike statements Nos. 60-65 of the plaintiffs statement of additional material facts. See Defendant’s Motion To Strike; Plaintiffs Genuine Issues of Material Fact (“Plaintiffs Additional SMF”) (Docket No. 50) at 16-50, ¶¶ 60-65. The statements in question, which occupy thirty-four dense (single-spaced) pages, grossly violate the spirit and the letter of Local Rule 56. They are neither short, concise nor reflective of any effort to separate the wheat of materiality from the chaff of irrelevancy. Nor are they supported by proper record citations, consisting instead of excerpts from allegations made in answers to interrogatories with respect to which it would be a monumental (if not impossible) task to discern the extent to which any are made on personal knowledge. See Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir.1990) (“In summary judgment proceedings, answers to interrogatories are subject to exactly the same infirmities as affidavits. Although such answers may be given effect so far as they are admissible under the rules of evidence, they should be accorded no probative force where they are not based upon personal knowledge or are otherwise deficient”) (citations omitted). Statements of fact Nos. 60-65 accordingly are stricken. 3. Plaintiffs Second Motion To Strike (Docket No. 66) In its second motion to strike, Uncle Henry’s objects that Plaut impermissibly introduced new “rebuttal” evidence in support of its reply statements of material fact. Plaintiffs Second Motion To Strike ¶¶ 1-4; see also Supplemental Appendix of Documents in Support of Defendant’s Response to Plaintiffs Genuine Issues of Material Fact and Defendants’ [sic] Reply to Plaintiffs Response to Defendants’ Statement of Undisputed Material Facts (“Defendant’s Second Appendix”), filed with Defendants’ Reply to Plaintiffs Response to Defendants’ Statement of Undisputed Material Facts (“Defendant’s Reply SMF/Opposing”) (Docket No. 57); Defendant’s Response to Plaintiffs Genuine Issues of Material Fact (“Defendant’s Reply SMF/Additional”) (Docket No. 60). Local Rule 56(d) directs a movant replying to an opposition to a motion for summary judgment to file a reply statement of material facts “limited to any additional facts submitted by the opposing party,” with denials and qualifications (if any) supported by appropriate record citations. So long as the reply statement is limited to those “additional facts,” the introduction of new evidence in support thereof is entirely appropriate. Uncle Henry’s errs in suggesting otherwise. Uncle Henry’s alternatively asks that the court strike materials found in Tabs 43-58 and 63-67 of the Defendant’s Second Appendix on grounds that they are neither proper summary judgment materials nor properly authenticated. Plaintiffs Second Motion To Strike ¶ 5. The documents in question consist primarily of copies of e-mails. See Tabs 43-58, 63-67 to Defendant’s Second Appendix. Uncle Henry’s cites no authority for the proposition that copies of e-mails are not proper summary judgment materials, and I find none. However, e-mails (like letters and other documents) must be properly authenticated or shown to be self-authenticating. See, e.g., United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir.2000) (noting, in context of challenge to authenticity of e-mails, “Under Fed.R.Evid. 901(a), documents must be properly authenticated as a condition precedent to their admissibility ‘by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ ”) (citations omitted). Plaut does authenticate some of the documents to which Uncle Henry’s objects by citing them together with deposition testimony that adequately explains them, to wit: Tab 44 (cited in Defendant’s Reply SMF/Additional ¶ 8); Tab 45 (cited in Defendant’s Reply SMF/Additional ¶¶ 8(a), 9 & 13(a)); and Tab 46 (cited in Defendant’s Reply SMF/Additional ¶¶ 12-13). The remaining documents are either unaccompanied by any explanatory citation or accompanied by a citation that references the document in question but fails to lay an adequate foundation (for example, because the deponent did not recall the document). On this basis, Tabs 43, 47-58 and 63-67 of the Defendant’s Second Appendix are stricken. B. Cognizable Facts With the foregoing preliminary issues resolved, the parties’ statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56, reveal the following relevant to this recommended decision: Uncle Henry’s, a Maine corporation with its principal place of business at 525 Eastern Avenue, Augusta, Maine, publishes and distributes a “Swap or Sell It Guide,” a weekly publication containing classified advertisements. Defendant’s SMF ¶¶ 1-2; Plaintiffs Opposing SMF ¶¶ 1-2. Uncle Henry’s operates its business at its facility in Augusta, Maine, including overall production and administrative work, receipt of orders, editing, artwork, book layout, accounts receivable and accounts payable. Id. ¶3. Its web-site business also is handled in Maine. Id. Approximately 75 to 80 percent of Uncle Henry’s customers are from Maine, and less than 5 percent are from Massachusetts. Id. ¶ 4. Uncle Henry’s is solely owned by Joseph H. Sutton, who is also its president and treasurer. Id. ¶ 5. He has a residence in Maine, where he lives approximately four to six months of the year, and a ranch in Texas where he lives the remainder of the year. Id. Both Justin and Jason Sutton, who are the sons of Joseph Sutton and have been running the business of Uncle Henry’s for the past fifteen years, were born in Maine and are full-time residents of Maine. Id. ¶ 6. Plaut, a Delaware corporation with its principal, place of business in Atlanta, Georgia, also maintains offices in Waltham, Massachusetts, Phoenix, Arizona and Birmingham, Alabama. Defendant’s SMF ¶ 7; Answer/Counterclaims at 19, ¶ 1; Plaintiffs Answer and Affirmative Defenses to Defendants’ Counterclaims (“Plaintiffs Answer”) (Docket No. 16) ¶ 1; O’Brien Decl. ¶ 3. EdgeWing was an unincorporated division of Plaut. Defendant’s SMF ¶ 7; Answer/Counterclaims at 19, ¶ 1; Plaintiffs Answer ¶ 1. At all relevant times, Plaut provided management consulting, information-technology integration, e-business solutions, SAP consulting and outsourcing and hosting services. Defendant’s SMF ¶ 8; Plaintiffs Opposing SMF ¶ 8. Uncle Henry’s first web site went online in 1999. Id. ¶ 15. Its sole shareholder, Joseph Sutton, characterized its web-site development efforts prior to EdgeWing’s engagement as “unsuccessful.” Id. ¶ 16. Uncle Henry’s began negotiating with a number of different information-technology companies beginning in June 2000 with respect to a redesign of its web site. Id. ¶ 17. It provided three web-site development companies, including EdgeWing, with the same list of features and functionality so that it could perform an “apples-to-apples” comparison of the proposals. Id. ¶ 18. After meeting with Uncle Henry’s in its offices in Augusta, Maine and receiving the list provided by Uncle Henry’s, EdgeWing submitted a proposed statement of work to Uncle Henry’s dated July 30, 2000. Id. ¶ 19. Two other companies, Stroudwater and Newton Online, submitted proposals. Id. ¶ 20. Uncle Henry’s rejected EdgeW-ing’s bid of $717,600, which was the highest submitted. Id. ¶¶ 21-22. Uncle Henry’s asked EdgeWing to lower its bid, and the two continued to negotiate. Id. ¶¶ 23-24. Uncle Henry’s relied on counsel to conclude discussions with EdgeWing. Defendant’s SMF ¶25; Deposition of Justin Sutton (“Justin Sutton Dep.”), Tab 12 to Defendant’s First Appendix, at 171. Starting in mid-September 2000 Eric Stauffer, Esq., of Preti, Flaherty, Beli-veau, Pachios & Haley (“Preti, Flaherty”) represented Uncle Henry’s in negotiations with EdgeWing. Defendant’s SMF ¶ 26; Plaintiffs Opposing SMF ¶ 26. Stauffer is experienced in the representation of clients in the acquisition, sale and/or licensing of computer software and handles or supervises much of Preti, Flaherty’s work with clients engaged in buying and selling computer hardware and software and other high-technology products. Id. ¶27. Stauffer, on behalf of Uncle Henry’s, performed a due-diligence investigation of EdgeWing, including reviewing Plaut’s web site, checking the web sites of companies that provided testimonials for Plaut, reviewing Dunn and Bradstreet reports, reviewing information about the formation of Plaut’s EdgeWing division and reviewing information about Plaut’s affiliates. Id. ¶28. In addition to due diligence performed by its counsel, Uncle Henry’s management also performed due diligence regarding Plaut and EdgeWing prior to entering into any agreement with Plaut/EdgeWing. Defendant’s SMF ¶ 55; Deposition of Jason Sutton (“Jason Sutton Dep.”), Tab 13 to Defendant’s First Appendix, at 196. Among other due diligence, Uncle Henry’s management inspected EdgeWing’s facilities, inquired about other projects performed by Ed-geWing, reviewed information given by EdgeWing pertaining to other projects, contacted references, inquired about other projects performed by Michael Picard of EdgeWing and reviewed other information provided by Picard about other projects performed by him. Defendant’s SMF ¶¶ 29, 56; Plaintiffs Opposing SMF ¶¶ 29, 56. Jason Sutton contacted references provided by EdgeWing, who, according to Sutton, “had mutual positive things to say in overall perception of their participation.” Id. ¶ 57. Prior to entering into any agreement, EdgeWing gave Uncle Henry’s copies of Plaut/EdgeWing press releases dated June 2000 announcing the formation of the Ed-geWing group, as well as other materials about EdgeWing’s creation, roots, management and customers. Id. ¶ 58. Jason Sutton also searched the Internet regarding EdgeWing on or prior to October 13, 2000. Id. ¶ 59. He located, reviewed and forwarded to Justin Sutton press releases relating the circumstances of Plaut’s formation of its EdgeWing division on July 1, 2000. Id. On October 17, 2000 Picard sent Justin Sutton a version of the Master Agreement and Website Development Statement of Work (the latter, “SOW”), stating that it was “for your signature.” Plaintiffs Additional SMF ¶ 8(a); Defendant’s Reply SMF/Additional ¶ 8(a). On October 20, 2000 Justin Sutton signed this version of the Master Agreement and SOW, as well as a web-hosting agreement dated October 10, 2000, and sent them to Picard. Id. ¶ 9. At the same time that he signed and returned the agreements, Justin Sutton signed a check to EdgeWing in the amount of $202,000, representing $196,000 for the first installment on the SOW and $6,000 for hosting fees. Id. ¶ 10. On October 30, 2000 Picard e-mailed Justin Sutton, saying, “Paul Shaughnessy [president of Plaut] was out sick last week and we didn’t get a change [sic] to do the final review of the M.S.A. § until today. We got our legal council [sic] involved to do the final pass on what your legal proposed. I made the final recommendations to sections 11.15 and 7.2C. Please review the highlighted comments and corrections and let me know if you’re okay with the changes.” Defendant’s Reply SMF/Additional ¶ 11; E-mail dated October 30, 2000 from picard@edgew-ing.com to justin@unclehenrys.com, Tab 19 to Plaintiffs Revised Appendix of Documents in Support of Statement of Genuine Issues of Material Fact (“Plaintiffs Appendix”), filed with Plaintiffs Opposing SMF and Plaintiffs Additional SMF. Justin Sutton knew that Shaughnessy was unwilling to sign the document in the form that he (Justin Sutton) had signed. Defendant’s Reply SMF/Additional ¶ 11; Justin Sutton Dep. at 159-62. On or after November 3, 2000 EdgeW-ing sent to Justin Sutton revised versions of the Master Agreement and SOW that had been signed by Shaughnessy (on the Master Agreement) and Picard (on the SOW) on or about that date. Plaintiffs Additional SMF ¶ 12; Defendant’s Reply SMF/Additional ¶ 12. Uncle Henry’s did not sign the document. Id. Also on or about November 3, 2000 EdgeWing cashed Uncle Henry’s check in the amount of $202,000. Id. ¶ 13. Uncle Henry’s counsel, Stauffer, received a copy of the Master Agreement and SOW executed by EdgeWing. Defendant’s Reply SMF/Additional ¶ 13; Stauf-fer Dep. at 176-77. During November 2000 Stauffer, on behalf of Uncle Henry’s, negotiated with Picard of EdgeWing regarding the terms of the Master Agreement and SOW. Defendant’s SMF ¶ 29; Picard Deck ¶ 8. In accordance with the authorization he had received from Shaughnessy, Picard communicated Ed-geWing’s agreement to the Master Agreement and SOW to Stauffer by e-mail and by telephone on November 30, 2000. Defendant’s SMF ¶ 30; Plaintiffs Opposing SMF ¶ 30. Picard sent an e-mail to Stauffer on November 30, 2000 stating that he had made the necessary changes to the Master Agreement and attaching a final Master Agreement and SOW. Id. Picard further stated in his e-mail, “[I]f we are in agreement we can put it to print tomorrow.” Id. Stauffer made sure that “everything was in the agreement” because the Master Agreement and SOW had an integration clause. Id. ¶ 31. He determined that no further changes to the November 30, 2000 final Master Agreement and SOW needed to be made and it was ready for Uncle Henry’s signature. Id. ¶ 32. On November 30, 2000 Stauffer sent an e-mail to Picard, with an e-mail copy to Jason Sutton, replying to Picard’s November 30 e-mail and stating, “Mike: it looks good to sign. Thank you. Rick.” Id. ¶ 34. Stauffer told Picard that he approved of the November 30, 2000 final Master Agreement and SOW, that he would deliver that document to Uncle Henry’s for signature and that Uncle Henry’s would then forward to EdgeWing an executed original. Id. ¶35. Stauffer then hand-delivered the final Master Agreement and SOW to Uncle Henry’s for execution by Uncle Henry’s. Id. ¶ 36. He had reviewed every point in the Master Agreement and SOW, including the scope matrix appearing at section 2.2 of the SOW, before delivering the document to Uncle Henry’s for execution. Id. ¶ 37. Stauffer was not aware of any prior agreement, understanding, negotiation or discussion that he believed should have been set forth in the Master Agreement or SOW. Id. ¶ 38. Justin Sutton signed the final version of the Master Agreement and SOW on behalf of Uncle Henry’s on December 7, 2000. Id. ¶39. Justin Sutton understood that the Master Agreement and SOW he signed on December 7, 2000 set forth the agreement between the parties as identified within the document. Id. ¶ 41. The Master Agreement and SOW signed by Justin Sutton on December 7, 2000 contains an “integration clause” at section 11.11 providing: This Master Agreement and each of the SOWs hereto, including any Exhibits, constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties pertaining to the subject matter hereof. Id. ¶ 42. Section 7.1 of the Master Agreement provides: EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OF THE APPLICABLE STATEMENT OF WORK, EDGEWING MAKES NO WARRANTIES IN CONNECTION WITH THE PROVISION OF SERVICES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED •INCLUDING; BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR FREEDOM FROM INFRINGEMENT OF THIRD PARTY PRODUCTS. Defendant’s SMF ¶ 43; 12/7/00 Master Agreement/SOW at 8. Section 7.2(a) of the Master Agreement provides: In no event shall EDGEWING be liable to the Company for any matter arising pursuant to or in connection with this Agreement except for the actual damages caused by EDGEWING’s breach of this agreement, negligence or willful misconduct. If EDGEWING is liable to the Client, it shall in no event be liable for an amount in excess of the full amounts paid or payable by the Company under the applicable Statement of Work. In no event shall EDGEWING be liable, for any reason, for consequential, incidental, special or indirect damages (including loss of profits or business opportunities); damages for loss of or damage to recorded data; or damages suffered by third parties, regardless of whether EDGEWING has been advised of or is aware that such damages have be [sic] anticipated or may be incurred. The sole remedy of the Company for failure by the [sic] EDGEWING to adhere to the Service Levels shall be an adjustment to the compensation received by EDGE WING, as provided in the Statement of Work or in the case that that [sic] repeated failures to achieve the Service Levels shall constitute a material default the Company may terminate this Agreement under the terms of Section 5.3(a). Defendant’s SMF ¶ 44; 12/7/00 Master Agreement/SOW at 8. In addition, section 2.2 of the SOW provides, in part: “In the event this Statement of Work is terminated for material default as provided in Section 5.3(a) of the Master Agreement, Buyer shall be entitled, at UncleHenry’s [sic] option to, among other remedies, (i) a complete refund of amounts paid hereunder plus relocation costs under Section 5.3, or (ii) reasonable costs of cover in obtaining development services from another qualified provider of the Services described herein as necessary to attain go live status for such a Web site.” Defendant’s SMF ¶ 45; 12/7/00 Master Agreement/SOW at 17-18. Section 11.16 of the Master Agreement provides: In the event of such a default and failure to cure on the part of either party hereto, the other shall be entitled to recover its cost of collecting any amounts due on account of such default, including reasonable attorney fees up to 20% of the related Statement of Work. Defendant’s SMF ¶ 46; 12/7/00 Master Agreement/SOW at 16. The SOW provides that “[a]ll of the provisions of the Master Agreement are incorporated into this Statement of Work.” Defendant’s SMF ¶ 47; Plaintiffs Opposing SMF ¶ 47. Section 2.2 of the SOW also provides: Generally, the Services will result in the design and development of a WEB site for the Company that provides the features and functionality described below. ... More specifically, Plaut will provide UncleHenry’s [sic] with the following project services: Develop a new site with the that [sic] includes the following scope items: [five-page scope matrix follows] Additions or deletions in scope will impact the overall project costs. Any changes in the above scope will result in a change order with applicable costs or savings. Id. ¶ 48. Section 2.6 provides that the “Services contemplated by this Scope of Work will be performed in accordance with the Project Schedule set forth in Section 5 below.” Id. ¶ 49. Pursuant to section 2.6B, Uncle Henry’s and EdgeWing agreed that, in the event of changes to the Schedule resulting from the preparation of such work plans, no additional notification would need be given to either party except as provided in the Master Agreement and SOW. Id. Section 2.6C provides: “When approved by Uncle Henry’s and EdgeW-ing, such work plans become effective and supersede any and all agreements, understanding[s] and expectations with respect to the previous work plans and shall become a part hereof without amendment of this Statement of Work.” Id. The payment schedule for the SOW is set forth in section 6 of that document. The total contract price is $593,000, payable in six payments of $196,000 at signing; $65,000 at satisfactory completion of Phase I; $65,000 at satisfactory completion of Phase II; $71,000 at satisfactory completion of Phase III; $98,000 at satisfactory completion of Phase IV; and $98,000 thirty days after satisfactory completion of Phase V. Id. ¶ 50. Uncle Henry’s paid $196,000 at the commencement of the engagement, but was not invoiced and did not pay Ed-geWing any additional amount for the web-site development project. Id. ¶ 51. Section 11.9 of the Master Agreement provides: “The provision[s] of this Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to its conflict of law principles.” Id. ¶ 52. In its answers to interrogatories, Uncle Henry’s identifies thirty-one alleged misrepresentations by EdgeWing. Defendant’s SMF ¶ 53; Plaintiffs Third Supplemental Responses to Defendants’ First Set of Interrogatories (“Plaintiffs Third Inter-rog. Answers”), Tab 15 to Defendant’s First Appendix, at 10-12, 27-32. In its third supplemental response (served at the conclusion of discovery) to interrogatory No. 5 in the defendant’s first set of interrogatories, which requested that Uncle Henry’s state the basis for its contention in paragraph 35 of its amended complaint that the alleged misrepresentations were “made by EdgeWing with knowledge of their falsity or recklessly without regard to whether they were true,” Uncle Henry’s entire response was as follows: “Uncle Henry’s believes that the misrepresentations are such that they could not be the result of mere negligence but could only have been the result of recklessness or an intent to deceive.” Defendant’s SMF ¶ 54; Plaintiffs Opposing SMF ¶ 54. The team hired by Edge Wing went to work on the Uncle Henry’s project in mid-October 2000. Plaintiffs Additional SMF ¶ 14/Defendant’s Reply SMF/Additional ¶ 14. On November 9, 2000 'Edge Wing project manager Helen Jones wrote to Deborah Walters and other Edge Wing personnel, noting that delays in setting up an appropriate infrastructure, among other things, had already resulted in a minimum seven-week delay in completing the project based on a “best case of infrastructure in place by 12/10/00,” moving the go-live date from January 19, 2000 to March 2, 2000. Plaintiffs Additional SMF ¶27; E-mail dated November 9, 2000 from Helen Jones to Deborah Walters (“Jones E-Mail”), Tab 26 to Plaintiffs Appendix; Defendant’s SMF ¶ 63; Plaintiffs Opposing SMF ¶ 63. Despite knowing that the infrastructure and other problems would delay the project by at least seven weeks, Ed-geWing only discussed with Justin Sutton a two-week concession on the “go-live” date. Plaintiffs Additional SMF ¶ 27; Jones E-Mail. As of late December 2000 or early January 2001, Justin Sutton knew that Uncle Henry’s new web site would not be going live as of January 19 and that the dates for release of the new web site would have to be extended. Defendant’s SMF ¶ 92; Plaintiffs Opposing SMF ¶ 92. Although the SOW set forth a “go-live” date of January 19, 2001, Uncle Henry’s received documents from EdgeWing that stipulated an extended go-live date for the new web site. Id. ¶ 93. Uncle Henry’s, by e-mail dated March 20, 2001 to EdgeWing, authorized change orders totaling $52,100 for work to be performed well after the original January 19 go-live date had passed. Id. ¶ 98. Uncle Henry’s terminated the web-site development project on July 18, 2001. Id. ¶ 100. By letter dated August 22, 2001 Uncle Henry’s requested that EdgeWing deliver certain “non-production” computer equipment that it had provided to EdgeW-ing for use at EdgeWing’s office on the web-site development project to Uncle Henry’s premises in Maine no later than 4 p.m. on August 23, 2002. Id. ¶ 101. Prior to delivery of the equipment to Uncle Henry’s, EdgeWing’s outside counsel stated to Uncle Henry’s counsel, both orally and in writing, that Uncle Henry’s acceptance of delivery of the equipment would not constitute a waiver, release or discharge of any of Uncle Henry’s claims. Id. ¶ 102. EdgeWing caused Atra Van Lines to attempt delivery of the non-production equipment to Uncle Henry’s in Augusta, Maine on August 23. Id. ¶ 103. Uncle Henry’s counsel was advised on August 23, 2001 that the non-production equipment was in transit to Uncle Henry’s. Id. ¶ 104. Uncle Henry’s rejected EdgeWing’s attempt to effect delivery of the equipment on August 24, 2001. Id. ¶ 106. EdgeW-ing, by its counsel, notified Uncle Henry’s that the equipment had been placed in storage at Atra Van Lines, provided Uncle Henry’s with the contact information for Atra and requested that Uncle Henry’s make arrangements to retrieve the equipment. Id. ¶ 107. Uncle Henry’s has not retrieved the equipment from Atra Van Lines. Id. ¶ 108. The equipment remains in storage at Atra Van Lines, available for retrieval by Uncle Henry’s. Id. ¶ 109. Uncle Henry’s delivered to EdgeWing on or about December 11, 2000 certain “production” equipment — the computer equipment that Uncle Henry’s had used to host its current web site. Id. ¶ 110. Ed-geWing, by letter from its counsel faxed and mailed to Uncle Henry’s counsel on August 30, 2001, requested that Uncle Henry’s make arrangements for the pickup of Uncle Henry’s production equipment. Id. ¶ 111. Uncle Henry’s has not made any arrangements to retrieve its production equipment. Id. ¶ 112. The contracts at issue in the instant lawsuit were negotiated in large part in Maine. Defendant’s SMF ¶ 114; Affidavit of Jason H. Sutton, etc. (“Jason Sutton Aff.”), Tab 2 to Defendant’s First Appendix, at 2. After two days of intensive meetings in Uncle Henry’s office in Augusta, Uncle Henry’s received communications by telephone and e-mail in Maine and communicated with EdgeWing by telephone and e-mail from Maine. Id. Uncle Henry’s signed the primary contract documents in Maine. Id. During negotiations, Justin and Jason Sutton took only one trip to EdgeWing’s facilities in Massachusetts. Defendant’s SMF ¶ 115; Plaintiffs Opposing SMF ¶ 115. All of the alleged acts or practices that Uncle Henry’s contends constitute violations of the Massachusetts Consumer Protection Act are alleged misrepresentations received and relied upon by Uncle Henry’s in Augusta, Maine. Defendant’s SMF ¶ 116; Plaintiffs Third Interrog. Answers at 32, 45-47. However, some of the alleged twenty-three acts or practices (Nos. 1-3, 5-6, 8-11, 13-14, 17 and 19) were received in Waltham, Massachusetts, as well. Plaintiffs Opposing SMF ¶ 116; Plaintiffs Third Interrog. Answers at 32, 45-47. Uncle Henry’s admits that the damages it allegedly incurred were incurred primarily in Maine. Defendant’s SMF ¶ 117; Plaintiffs Opposing SMF ¶ 117. With respect to web-site development, the bulk of the programming work initially was done by Plaut at its facilities in Georgia, later moving to Massachusetts. Plaintiffs Opposing SMF ¶ 118; Jason Sutton Aff. at 3. Uncle Henry’s moved its existing web site to Plaut’s facility in Wal-tham, Massachusetts for hosting on or about December 13, 2000, where it remained and was hosted and administered by Plaut until on or about August 24, 2001. Plaintiffs Additional SMF ¶ 53; Defendant’s Reply SMF/Additional ¶ 53. III. Analysis A. Count I: Massachusetts Unfair Trade Practices Act In Count I of its amended complaint, Uncle Henry’s alleges that Plaut’s conduct violated sections 2 and 11 of the Massachusetts Unfair Trade Practices Act, Mass. Gen. Laws ch. 93A (“Chapter 93A”). Complaint ¶¶ 29-31. Plaut argues, inter alia, that it cannot be held liable for a Chapter 93A violation inasmuch as the acts or omissions in issue “did not occur primarily and substantially within Massachusetts.” Defendant’s SJ Motion at 16-17. I agree. Section 11 of Chapter 93A provides, in relevant part: No action shall be brought or maintained under this section unless the actions and transactions constituting the alleged unfair method of competition or the unfair or deceptive act or practice occurred primarily and substantially within the commonwealth. For the purposes of this paragraph, the burden of proof shall be upon the person claiming that such transactions and actions did not occur primarily and substantially within the commonwealth. As a threshold matter, Uncle Henry’s posits that Plaut cannot meet this burden because it is in effect judicially estopped from claiming that the underlying events are substantially connected to any state other than Massachusetts. Plaintiffs Response to Defendants’ Motion for Summary Judgment (“Plaintiffs SJ Opposition”) (Docket No. 39) at 17-18; see also id. at 11-12. As Uncle Henry’s notes, id. at 11, on November 29, 2001 Plaut filed a motion pursuant to 28 U.S.C. § 1404(a) for transfer of venue of the instant action to the District of Massachusetts, see Venue Motion at 1. Under the sub-heading “Massachusetts Has the Most Significant Relationship and Level of Contact with the Transactions and Parties,” Plaut argued that in view of assertions made by Uncle Henry’s, including its allegation in the complaint that Massachusetts bore the most significant relationship to the parties and transaction, “any opposition by Uncle Henry’s [to] the requested transfer ... should be rejected.” Venue Motion at 6-7; see also Plaut Consulting Inc.’s and EdgeWing’s Reply to Plaintiffs Response to Motion To Transfer Venue (‘Venue Reply”) (Docket No. 21) at 5. Plaut further argued, under the heading “Massachusetts Law Applies to this Action,” that Uncle Henry’s had, inter alia, attempted to invoke the remedies of Chapter 93A. Venue Motion at 10-11; see also Venue Reply at 5. To successfully invoke the doctrine of judicial estoppel, “the proponent must show that the party to be estopped had succeeded previously with a position directly inconsistent with the one [he] currently espouses.” Faigin v. Kelly, 184 F.3d 67, 82 (1st Cir.1999) (citation and internal quotation marks omitted). Uncle Henry’s makes neither showing. Plaut did not directly espouse the positions in question; rather, it took care to make clear that it relied on Uncle Henry’s assentations. In any event, Plaut did not succeed; the motion to transfer venue was denied. See Endorsement to Venue Motion. Plaut is thus free to, argue — and succeeds in demonstrating — that its asserted violations of Chapter 93A did not occur “primarily and substantially” in Massachusetts. Specifically, Plaut shows that (i) Uncle Henry’s is a Maine corporation, and its principals (Jason and Justin Sutton) live and work in Maine, (ii) the contracts in issue were negotiated in large part in Maine, (iii) although thirteen of the twenty-three alleged misrepresentations underpinning Count I were made in Massachusetts as well as Maine, all twenty-three were made in Maine, and (iv) Uncle Henry’s admits that the damages it allegedly occurred as a result were primarily incurred in Maine. The First Circuit has distilled from the “sparse” body of relevant Massachusetts precedent “three basic factors” bearing on the question whether conduct occurred “primarily and substantially” in Massachusetts for purposes of section 11 of Chapter 93A: “(1) where defendant committed the deception; (2) where plaintiff was deceived and acted upon the deception; and (3) the situs of plaintiffs losses due to the deception.” Roche v. Royal Bank of Canada, 109 F.3d 820, 829 (1st Cir.1997). Of these, the first factor “is the least weighty of the three factors.” Id. To the extent that a message originates in Massachusetts but its “receipt and impact occur[ ] centrally in another state,” an alleged misrepresentation does not occur “primarily and substantially” in Massachusetts for purposes of section 11 of Chapter 93A. M & I Heat Transfer Prods., Ltd. v. Gorchev, 141 F.3d 21, 23 (1st Cir.1998); see also, e.g., Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 473 N.E.2d 662, 672 (1985) (“Raytheon has met its burden of showing that the transactions and actions on which Bushkin relies did not occur primarily in Massachusetts. The telephone conversations were between [Bushkin in] New York and [Raytheon in] Massachusetts. The alleged unfair or deceptive acts or practices were statements made in Massachusetts but received and acted on in New York. Any loss was incurred in New York.”) (citation omitted). Here, as in M & I Heat and Bushkin, the alleged misrepresentations were received primarily in Maine, where, their impact primarily was felt. Inasmuch as Plaut meets the burden of demonstrating that the conduct underpinning Count I did not take place “primarily and substantially” in Massachusetts, it is entitled to summary judgment as to Count I. B. Counts III-IV: Fraud and Negligent Misrepresentation In Counts III and IV of its amended complaint Uncle Henry’s brings common-law causes of action for fraud and negligent misrepresentation predicated on thirty-one alleged misrepresentations. Complaint ¶¶ 34-37; see also Defendant’s SMF ¶ 53; Plaintiffs Third Interrog. Answers at 10-12, 27-32. As a threshold matter, the parties disagree as to which state’s law applies to these counts. Compare Defendant’s SJ Motion at 8 & n. 6 with Plaintiffs SJ Opposition at 10-12. Both concur that (i) in the context of Counts III-IV, their contractual choice-of-law provision is inapposite and (ii) the court must follow the choice-of-law rules of Maine, the forum state. Defendant’s SJ Motion at 8 n. 6; Plaintiffs SJ Opposition at 10-11. However, Uncle Henry’s argues that the relevant factors tilt in favor of application of Massachusetts law, while Plaut reasons that Maine law ought to apply. Defendant’s SJ Motion at 8 n. 6; Plaintiffs SJ Opposition at 10-12. Again, Plaut has the better of the argument. In analyzing questions such as this, Maine has followed the approach of the Restatement (Second) of Conflict of Laws. See, e.g., Adams v. Buffalo Forge Co., 443 A.2d 932, 934-35 (Me.1982). As Plaut notes, Defendant’s Summary Judgment Reply Memorandum of Law (“Defendant’s SJ Reply”) (Docket No. 58) at 3-4, the Restatement section most on point is section 148, which pertains to fraud and misrepresentation, see Restatement (Second) of Conflict of Laws § 148 (1971). This section provides, in relevant part: (2) When the plaintiffs action in reliance took place in whole or in part in a state other than that where the false representations were made, the forum will consider such of the following contacts, among others, as may be present in the particular case in determining the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties: (a) the place, or places, where the plaintiff acted in reliance upon the defendant’s representations, (b) the place where the plaintiff received the representations, (c) the place where the defendant made the representations, (d) the domicil, residence, nationality, place of incorporation and place of business of the parties, (e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and (f) the place where the plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant. Restatement (Second) of Conflict of Laws § 148(2) (1971). The evidence in this case reflects that (i) Uncle Henry’s acted in rebanee upon the alleged representations primarily in Maine, although also in Massachusetts, (ii) as to the nineteen statements with respect to which there is cognizable evidence of locus of receipt, Uncle Henry’s received all in Maine, although it also received thirteen in Massachusetts, (ni) Plaut fairly can be inferred to have made most of the representations from outside of Maine, including from Massachusetts, and (iv) Uncle Henry’s is a Maine corporation with its principal place of business in Maine, while Plaut is a Delaware corporation that maintained its principal place of business in Massachusetts during the time of the alleged misrepresentations but now bsts its principal place of business as Georgia. To the extent there was a “tangible” thing that was the “subject” of this transaction, work on the Uncle Henry’s contract was performed in Georgia and Massachusetts, and Plaut hosted Uncle Henry’s web site from Massachusetts from December 2000 through August 2001. Per relevant Restatement commentary: fi ... Plaintiffs action in reliance provides a more important contact when it is confined to a single state than when it is divided among two or more. When a major part of the action in reliance takes place in one state and a lesser part in another, the first state has a more important contact with the occurrence than does the latter. When plaintiffs action in reliance is taken pursuant to the terms of an agreement made by the plaintiff with the defendant, or is otherwise of a sort contemplated by the defendant, the place of reliance is a more important contact than it is in other situations.... j. The general approach.... If any two of the above-mentioned contacts, apart from the defendant’s domicil, state of incorporation or place of business, are located wholly in a single state, this usually will be the state of the applicable law with respect to most issues. So when the plaintiff acted in reliance upon the defendant’s representations in a single state, this state will usually be the state of the applicable law, with respect to most issues, if (a) the defendant’s representations were received by the plaintiff in this state, or (b) this state is the state of the plaintiffs domicil or principal place of business.... Restatement (Second) of Conflict of Laws § 148 emts. f & j (1971). In this case, although no two contacts were located “wholly” within Maine, I find that the aggregation of contacts counsels in favor of application of Maine law given Maine’s status as (i) the state of Uncle Henry’s incorporation and primary place of business, (ii) the state in which Uncle Henry’s received all alleged misrepresentations as to which there is cognizable evidence of locus of receipt (although many of the same misrepresentations also were received in Massachusetts) and (in) the state in which Uncle Henry’s primarily relied on the representations in question (which, significantly, arose out of a contractual relationship) and where it primarily suffered damages as a result. With this preliminary skirmish resolved, I turn to Plaut’s multi-pronged attack on the sustainability of the thirty-one alleged misrepresentations. One of Plaut’s overarching points — that the statements are species of non-actionable opinion — is dis-positive of most of Uncle Henry’s allegations. See Defendant’s SJ Motion at 10-12. Accordingly, I focus first on it. As the First Circuit has observed, “Claims for fraudulent and negligent misrepresentation, although obviously distinct, both require that the defendant have made a false representation of present fact and that the plaintiff justifiably relied on the representation as true.” Kearney v. J.P. King Auction Co., 265 F.3d 27, 33-34 n. 8 (1st Cir.2001) (construing Maine law). Plaut argues, inter alia, that none of the alleged misrepresentations constitutes a statement of “present fact” upon which a hearer could justifiably rely, and thus none is actionable as fraud or negligent misrepresentation. Defendant’s SJ Motion at 10-12. Specifically, Plaut categorizes Nos. 1-19 as mere promises of future performance, not actionable even if a defendant held a preconceived notion not to perform, and Nos. 7, 9, 14-15 and 20-30 as “sales puffery” or “trade talk” upon which no reasonable person would rely. Id. at 10-12,15. For the most part, I agree. With respect to the first category— promises of future performance — “[traditionally, an action for deceit could be brought under Maine law only if the challenged misrepresentation was of past or existing fact, not just of opinion or of promises for future performance.” Kearney, 265 F.3d at 34 (citation and internal quotation marks omitted). “Even a preconceived intention not to perform was said to be incapable of turning a breach of a promise ... to do something in the future into an action for deceit.” Id. (citation and internal quotation marks omitted). However, as Maine law has evolved, “in appropriate circumstances, promises concerning future performance may be sufficiently akin to averments of fact as to be actionable under Maine misrepresentation law.” Id. at 35 (citation and internal quotation marks omitted). Specifically, “the relationship of the parties or the opportunity afforded for investigation and the reliance, which one is thereby justified in placing on the statement of the other, may transform into an averment of fact that which under ordinary circumstances would be merely an expression of opinion.” Wildes v. Pens Unlimited Co., 389 A.2d 837, 840 (Me.1978) (citation, internal quotation marks and emphasis omitted). As the First Circuit has observed, such circumstances have arisen in cases in which: 1. “[T]he plaintiff is at the mercy of the defendant, such as in employment situations where an employer, with full knowledge of imminent corporate downsizing, nevertheless promises a position to a new salesperson.” Kearney, 265 F.3d at 35 (citation and internal quotation marks omitted). 2. A defendant has exclusive control over and deliberately conceals critical information relevant to the promised future performance. Id. at 35-36. Of the allegations in issue (Nos. 1-19), Uncle Henry’s concedes that the following did indeed pertain to “future events”: No. 4 (that EdgeWing would provide services in a professional manner meeting IT industry standards), No. 5 (that EdgeWing would maintain staffing of professionals qualified to provide services at levels sufficient to meet the performance schedules), No. 6 (that EdgeWing staff serving Uncle Henry’s would possess the expertise and experience necessary to provide such services), No. 8 (that EdgeWing would migrate the existing web site into a new architecture), No. 12 (that EdgeWing would take a snapshot of the existing web site and review the code for specific