Moulton v. Bane et al

Filing 95

///ORDER granting 58 Motion for Summary Judgment. All claims against Eric Emery are resolved in his favor. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas M. Moulton
v.
David Bane and
Prime Choice Enterprises, LLC

Civil No. 14-cv-265-JD
Opinion No. 2015 DNH 204

v.
Thomas M. Moulton, et al.
O R D E R
Thomas M. Moulton brought suit against David Bane and his
company, Prime Choice Enterprises, LLC (“PCE”), after their
business relationship failed.

In response, Bane and PCE brought

counterclaims against Moulton and third-party claims against
Eric Emery, King’s Highway Realty Trust, Ltd. Partnership, and
North Madison Hill LLC.

Eric Emery moves for summary judgment

on the third-party claims brought against him.

Bane and PCE

concede that they cannot prove the conversion claim against
Emery, Count IV, but object to summary judgment on the tortious
interference and unjust enrichment claims.
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
case.”

Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.

2015).

Reasonable inferences are taken in the light most

favorable to the nonmoving party, but unsupported speculation
and evidence that “is less than significantly probative” are not
sufficient to avoid summary judgment.

Planadeball v. Wyndham

Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015)
(internal quotation marks omitted).
Background
Emery worked as the executive director of real estate and
development for a New Hampshire company, The Meat House (“TMH”).
TMH experienced financial distress in 2014 and began to close
stores.

When Emery’s paychecks bounced, he began to look for

other work.
David Bane was a franchisee of TMH and opened a TMH store
in Summit, New Jersey, in 2012.

During the winter of 2014, Bane

was trying to purchase TMH’s assets and to start a new company
to operate TMH stores.

Through discussions with Bane, Emery

understood that he would have a position with Bane’s new

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company.

Bane established Prime Choice Enterprises, LLC (“PCE”)

in March of 2014.

On April 15, 2014, PCE acquired TMH’s assets

in a private, secured party Article 9 sale that was conducted by
Centrix Bank.

Emery worked for PCE without an employment

agreement.
Thomas Moulton was a secured creditor of TMH who had the
right to “step in” to manage TMH after TMH’s default.

Moulton

exercised the step in rights on March 6, 2014, and operated TMH
through another entity owned by Moulton, North Madison Hill, LLC
(“NMH”), along with his associate, Michael Rubin.

In that

position, Moulton and Rubin facilitated PCE’s purchase of TMH’s
assets and worked with PCE.
Emery knew that Moulton and Bane were working together but
did not know the details of their arrangement.

Emery developed

a good working relationship with Moulton and Rubin.

On behalf

of PCE, Moulton paid Emery’s salary and expenses during March,
April, and May of 2014.
Emery was working to get leases for PCE to operate the TMH
stores in Scarborough, Maine, and Stratham, New Hampshire.

He

was aware that the principal owners of the landlords for both
stores, Steve Lopilato at Jenty, LLC, in Scarborough and Mark
Stebbins at King’s Highway Realty in Stratham, were friends of
Moulton’s.

Emery also knew that Moulton was involved in the

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lease negotiations on behalf of PCE.

PCE had signed a lease for

the Scarborough store but not for the Stratham store when the
relationship between Moulton and Bane broke down.
After PCE purchased TMH assets, PCE learned that Team
Funding Solutions asserted ownership of the equipment at the TMH
Stratham, New Hampshire, store.

PCE negotiated with Ted

Reynolds, president of Team Funding Solutions, to settle the
claims to the equipment.

When Moulton and Bane were no longer

working together, Moulton’s company, NMH, bought the leased
equipment at the Stratham store from Team Funding Solutions.
During May, Emery became concerned because PCE did not have
an employer identification number, which was necessary to pay
its employees and to obtain permits to reopen TMH stores.

Bane

told Emery he did not have the number because the website was
not operating, but Emery accessed the website himself and found
that it was working.

Emery also became concerned about how Bane

was dealing with Moulton.
After the relationship between Bane and Moulton concluded,
Moulton asked Emery to work for Moulton’s company, NMH.

NMH was

operating retail butcher shops at the TMH locations in
Scarborough, Maine, and Stratham, New Hampshire.
to accept Moulton’s offer.

Emery decided

Emery sent Bane a formal letter of

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resignation on May 22, 2014.

Thereafter, Emery worked for

Moulton’s company, NMH.
Discussion
PCE brought third-party claims against Emery for tortious
interference, conversion, and unjust enrichment.

In response to

Emery’s motion for summary judgment, PCE consents to summary
judgment on the conversion claim but objects as to the tortious
interference and unjust enrichment claims.1
A.

Tortious Interference
PCE alleges that Emery tortiously interfered with PCE’s

lease with Jenty, LLC., the landlord of the Scarborough TMH
store; with PCE’s efforts to finalize a lease with King’s
Highway Realty, the landlord of the Stratham TMH store; and with
PCE’s efforts to settle its rights to TMH equipment with Team

The court notes that Emery filed the motion for summary
judgment on August 31, 2015, in which he set forth the grounds
and record evidence supporting summary judgment in his favor on
the conversion claim. Despite having the benefit of the record
evidence provided for summary judgment, Bane and PCE filed their
answer, counterclaims, and third-party claims on September 21,
2015, three weeks later, in which they again alleged the
conversion claim against Emery. Then, on October 12, 2015, Bane
and PCE conceded that they could not prove the conversion claim.
In his reply, Emery asks that he be awarded attorneys’ fees
incurred in moving for summary judgment on the conversion claim.
That request, however, is not properly raised in a reply. See
LR 7.1(e)(1); LR 7.1(a)(1).
1

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Funding Solutions.

Emery moves for summary judgment on the

grounds that PCE lacks evidence that he interfered with any of
the cited relationships or that any interference was improper.
1.

Scarborough Store

Emery, on behalf of PCE, negotiated a lease of the
Scarborough store with Lopilato at Jenty, LLC.

Moulton was also

involved in the negotiations because Lopilato was a friend.
After the relationship between Bane and Moulton ended, Moulton
contacted his friend, Lopilato; Lopilato caused the lease with
PCE to be voided; and Moulton’s company, NMH, leased the store.
PCE contends that Emery tortiously interfered with its lease of
the Scarborough store.
“To establish liability for tortious interference with
contractual relations, a plaintiff must show that:

(1) the

plaintiff had an economic relationship with a third party; (2)
the defendant knew of this relationship; (3) the defendant
intentionally and improperly interfered with this relationship;
and (4) the plaintiff was damaged by such interference.”

City

of Keene v. Cleaveland, --- N.H. ---, 118 A.3d 253, 259 (N.H.
2015) (internal quotation marks omitted).

To be actionable, the

interference must be improper, meaning motivated by an improper
purpose.

Nat’l Emp’t Serv. Corp. v. Olsten Staffing Serv.,

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Inc., 145 N.H. 158, 162 (2000); accord City of Keene, 118 A.3d
at 259 (“Whether the alleged conduct is improper requires an
inquiry into the mental and moral character of the defendant’s
conduct.”) (internal quotation marks omitted).

To be wrongful,

interference must “surpass[] the permissible bounds of roughand-tumble business competition.”

Cook & Company Ins. Servs.,

Inc. v. Volunteer Firemen’s Ins. Servs., Inc., 2015 WL 5458279,
at *2 (D. Mass. Sept. 17, 2015).
In support of summary judgment, Emery states in his
declaration that he did not interfere with the lease that PCE
signed with Jenty for the Scarborough store.

He also testified

at his deposition that he was not involved in Moulton’s
discussions with Lopilato about the lease.

He also asserts that

PCE lacks any evidence that he did interfere with the lease.
In response, PCE submits no evidence that Emery interfered
with the lease but argues instead that inferences from the
chronology of events could support a conclusion that Emery
interfered with the lease.

Specifically, PCE points to Emery’s

involvement in the lease negotiations and the timing of Emery’s
move to work for Moulton that was close to the time when NMH
leased the Scarborough store.

PCE contends that the chronology

supports a reasonable inference that Emery was the key to the

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lease of the Scarborough store and then caused Lopilato to void
the lease with PCE and to sign a lease with NMH.
Without evidentiary support, PCE’s theory is mere
speculation.

In light of Emery’s declaration, denying that he

interfered with PCE’s lease, and the other record evidence, no
reasonable inference can be drawn that Emery did interfere.
Therefore, Emery is entitled to summary judgment on that part of
Count I that is based on the Scarborough lease.
2.

Stratham Store and Team Funding Sale

PCE did not have a signed lease for the Stratham store but
was negotiating with Stebbins of King’s Highway Realty for that
purpose.

When Moulton informed his friend, Stebbins, that he

was no longer involved with PCE, Stebbins signed a lease with
NMH, Moulton’s company.

Bane was in contact with Reynolds at

Team Funding about acquiring the TMH assets that Team Funding
claimed when NMH bought the assets.

In both cases, PCE asserts

a prospective contractual relationship that was lost because of
Emery’s alleged interference.
A claim for tortious interference with a prospective
contractual relationship requires proof that the defendant
“induced or otherwise purposely caused a third person not to
enter into or continue a business relation with another and

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thereby caused harm to the other.”

Sarah’s Hat Boxes, L.L.C. v.

Patch Me Up, L.L.C., 2013 WL 1563557, at *13 (D.N.H. Apr. 12,
2013) (internal quotation marks omitted).
also must be improper.

That interference

Alternative Sys. Concepts, Inc. v.

Synopsys, Inc., 229 F. Supp. 2d 70, 74 (D.N.H. 2002).
“[C]ertain types of conduct such as fraud or threats of physical
violence ordinarily will be sufficient to support a claim for
interference with prospective contractual relationship, but the
use of ordinary means of persuasion or the exertion of limited
economic pressure will not, by itself, be sufficient.”

Wilcox

Indus. Corp. v. Hansen, 870 F. Supp. 2d 296, 307 (D.N.H. 2012).
PCE provides no evidence that Emery interfered with PCE’s
efforts to lease the Stratham store or to acquire the Team
Funding assets.

Emery states in his declaration that he did not

interfere with either transaction.

Other record evidence also

supports Emery’s lack of involvement.

In the absence of

evidence of interference, PCE has not shown even a factual
dispute to save those claims.

Therefore, Emery is entitled to

summary judgment on the remainder of Count I and on Count II.
B.

Unjust Enrichment
PCE alleged that Emery “received benefits which would be

unconscionable and contrary to law” for him to retain.

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Emery

moves for summary judgment on the ground that there is no
evidence that he received any benefit from PCE that would be
unconscionable to retain.

In response, PCE asserts that Emery

benefitted from interference with the leases and with the
acquisition of assets from Team Funding so that NMH instead of
PCE acquired the leases and assets.2
“A plaintiff is entitled to restitution for unjust
enrichment if the defendant received a benefit and it would be
unconscionable for the defendant to retain that benefit.”

Gen.

Insulation Co. v. Eckman Constr., 159 N.H. 601, 611 (2010)
(internal quotation marks omitted).

To recover on the claim,

however, the plaintiff must show both that the defendant
received a benefit and that it would be unconscionable for the
defendant to retain the benefit received.

GE Mobile Water, Inc.

v. Red Desert Reclamation, LLC, 6 F. Supp. 3d 195, 201 (D.N.H.
2014).
Here, PCE has not shown any benefit that Emery received or
any benefit unconscionably retained.

To the extent PCE relies

on its tortious interference claim, it lacks evidence to support

In a footnote in the objection, PCE states: “When employed
by PCE, Mr. Emery was paid by Mr. Moulton on PCE’s behalf.
Therefore, to the extent Mr. Moulton’s damages include payments
made to Mr. Emery on PCE’s behalf, they represent benefits
wrongfully retained by Mr. Emery.”
2

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that theory.

Further, the benefit that is described by PCE

appears to have gone to NMH, not Emery.3
from Moulton for his work at PCE.

Emery received payments

PCE does not explain why it

would be unconscionable for Emery to retain those payments.
Therefore, Emery is entitled to summary judgment on the
unjust enrichment claim.
C.

Injunctive Relief
The motion for summary judgment does not address PCE’s

request for injunctive relief, Count IX.

Emery does contest the

request for injunctive relief in his reply.

But see LR

7.1(e)(1).
Count IX seeks an injunction requiring Emery, along with
Moulton and NMH, to return to PCE the TMH assets located at the
Stratham store.

The claim is based on the tortious interference

claim against Emery.

Because Emery is entitled to summary

judgment on the tortious interference claim, no basis exists to
support the claim for injunctive relief against him.

Therefore,

Emery is entitled to summary judgment on Count IX.

The argument presented in a footnote about payments made by
Moulton to Emery and then claimed by Moulton in this suit is not
sufficiently developed to permit review. See Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999)
(explaining that “district court is free to disregard arguments
that are not adequately developed”); accord Coons v. Indus.
Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010).
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Conclusion
For the foregoing reasons, Eric Emery’s motion for summary
judgment (document no. 58) is granted.
Therefore, all claims against Eric Emery are resolved in
his favor.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
November 3, 2015
cc:

Jesse C. Ehnert, Esq.
Anna B. Hantz, Esq.
Michele E. Kenney, Esq.
Deborah Ann Notinger, Esq.
William B. Pribis, Esq.
Ross H. Schmierer, Esq.
Nathan P. Warecki, Esq.

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