Campbell v. CGM, LLC
///ORDER granting in part and denying in part 44 Motion for Summary Judgment. The motion is granted as to the plaintiffs fraud claim, Count Two, and is otherwise denied. Granting in part and denying in part 45 Motion for Sum mary Judgment. Motion is granted as to the defendants counterclaims for tortious interference, Count Four, and punitive damages, Count Five, and is otherwise denied. Parties shall file a joint mediation statement on or before 2/3/17. Trial is rescheduled to the period beginning on 3/7/17. So Ordered by Judge Joseph A. DiClerico, Jr.(gla) So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 15-cv-088-JD
Opinion No. 2017 DNH 004
O R D E R
Christopher Campbell, brings this action against his former
employer, CGM, LLC, asserting claims for breach of contract;
fraud, deceit and misrepresentation; violation of the New
Hampshire Consumer Protection Act, RSA Chapter 358-A; and unpaid
wages under RSA chapter 275.
CGM brought counterclaims against
Campbell for breach of contract; conversion; violation of the
Computer Fraud and Abuse Act, 18 U.S.C. § 1030; tortious
interference with contract; punitive damages; and injunctive
Both Campbell and CGM have filed motions for summary
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
Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.
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).
When considering cross motions for summary judgment, the
court must “determine whether either of the parties deserves
judgment as a matter of law on facts that are not disputed.”
Barnes v. Fleet Nat’l Bank, N.A., 370 F.3d 164, 170 (1st Cir.
2004) (internal quotation marks omitted).
To do that, the court
views each motion separately, taking the facts in the light most
favorable to the nonmoving party and drawing inferences in the
nonmoving party’s favor.
OneBeacon Am. Ins. Co. v. Commercial
Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir.
Campbell previously moved to strike the declaration of
Duane Szarek submitted by CGM in support of its objection to
Campbell’s motion for summary judgment.
Campbell asserted that
the declaration impermissibly provided expert opinions when
Szarek had not been disclosed as an expert witness.
granted the motion to strike, and Szarek’s declaration is not
considered for purposes of the motions for summary judgment.
CGM challenges statements made by Campbell in his
affidavits as presenting “sham” affidavits.
states that Campbell’s statements in his affidavit dated June 1,
2015, that his company, Intellinet, had billings of
“approximately $250,000” and that the subject line on the check
to Campbell from CGM for $5,000 “indicated that this was the
bonus [he] had earned on annual earnings from 2001 – 2004” are
contradicted by deposition testimony given almost a year later
on April 25, 2016.
CGM also asserts that most of Campbell’s
October 24, 2016, affidavit is a sham because Campbell “attempts
to contradict his clear deposition answers to unambiguous
questions without explanation.”
In the First Circuit, “‘[w]hen an interested witness has
given clear answers to unambiguous questions, he cannot create a
conflict and resist summary judgment with an affidavit that is
clearly contradictory’ without providing ‘a clear satisfactory
explanation of why the testimony is changed.’”
Parker Hanninfin/Nichols Portland Div., 429 F.3d 325, 332 (1st
Cir. 2005) (quoting Colantuoni v. Alfred Calcagni & Sons, Inc.,
44 F.3d 1, 4-5 (1st Cir. 1994)).
That is, “a party opposing
summary judgment may not manufacture a dispute of fact by
contradicting his earlier sworn testimony without a satisfactory
explanation of why the testimony has changed.”
Ford, 241 F.3d 69, 74 (1st Cir. 2001).
“A subsequent affidavit
that merely explains, or amplifies upon, opaque testimony given
in a previous deposition is entitled to consideration in
opposition to a motion for summary judgment.”
Gillen v. Fallon
Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir. 2002)
The sham affidavit rule does not apply to the challenged
statements from the June 1, 2015, affidavit.
The affidavit was
prepared before Campbell was deposed, not after.
was prepared in support of Campbell’s objection to CGM’s motion
to dismiss and was filed as additional support for Campbell’s
later motion for summary judgment.
Therefore, the affidavit was
not prepared to manufacture a factual dispute for purposes of
opposing summary judgment.
In addition, the challenged statements do not clearly
contradict Campbell’s deposition testimony.
The affidavit says
Intellinet had “billings of approximately $250,000” and
Campbell’s deposition testimony was that he did not know the
most Intellinet had ever grossed in a year.
provided an adequate explanation of the differences in his Reply
Affidavit, dated October 24, 2016.
The statement about the
bonus check is merely Campbell’s interpretation of the subject
line on the check.
The Reply Affidavit, dated October 24, 2016, provides an
explanation of Campbell’s statements about Intellinet’s revenue
and addresses statements made by CGM’s founders in their
declarations and deposition testimony.
Because CGM asserts only
that “most” of Campbell’s affidavit is a sham, without
explaining what statements clearly contradict Campbell’s
deposition testimony, CGM has not provided a sufficient
explanation of the sham affidavit charge to permit review.
Therefore, none of the statements in Chris Campbell’s
affidavits are precluded as shams.
The background information is summarized from the parties’
factual statements, with disputed facts noted as necessary.1
CGM’s memorandum in support of its motion for summary
judgment is thirty-three pages long and its objection to
Campbell’s motion is thirty-one pages long. Under the local
rules in this district, “no memorandum in support of, or in
opposition to, a dispositive motion shall exceed twenty-five
(25) pages.” LR 7.1(a)(3). As CGM did not seek leave to file
longer memoranda, its filings do not comply with the local rule.
Chris’s memorandum in support of his motion for partial
summary judgment does not have page numbers as is required by
Local Rule 5.1(a).
The court may impose a fine against counsel who have violated
a local rule governing the form of filings, may strike the
nonconforming filing, or may excuse a failure to comply
“whenever justice so requires.” LR 1.3; LR 5.2. In this case,
the court will excuse counsel’s failures to comply with the page
limits and numbering with instruction to counsel that the local
rules in this district shall be followed in the future or
sanctions will be imposed.
This case involves claims between Christopher “Chris”
Campbell, the plaintiff, and CGM, LLC, which was founded and is
operated by Chris’s twin brother, Charles “Chuck” Campbell, and
Chuck’s business partner, Kevin Murphy.
Hereafter, to avoid
confusion between the Campbells, the individuals will be
referred to by their first names as Chris, Chuck, and Kevin.
Chris is an electrical engineer who founded Intellinet,
Inc., a telecommunications business, that operated in
Massachusetts and New Hampshire.
CGM was founded by Chuck,
Kevin, and a third partner who is no longer with the company,
and operates in Georgia.
CGM originally provided consulting
services to telecommunications companies and now provides data
processing and software development compliance services to
Kevin is responsible for CGM’s
administrative and financial functions, and Chuck is responsible
for business development.
Intellinet did contract work for CGM in 2000.
2001, Chuck proposed that Chris become an employee of CGM.
Chris was interested in Chuck’s proposal.
At the same time,
another company, CCG Consulting, was considering acquiring CGM.
On March 27, 2001, Chuck sent Chris an email with the
subject of “New Christo Proposal.”
In the email, Chuck said
that the previous deal they had discussed was an “$180K annual
package plus 10% of EBITDA.”2
The new proposal was “$160K annual
package plus 6% of EBITDA plus 10% of CCG stock.”
that he was concerned about Chris’s monthly cash flow and the
EBITDA payout in the first year.
He explained the differences
between the proposal if CGM were acquired by CCG and if it were
In closing Chuck wrote: “If the deal with CCG
doesn’t go through, we’ll move right back to the previous deal.
Please give me a buzz after you’ve looked it over and let’s get
Chuck attached a spreadsheet to the email that is titled
“Christo CGM deal” and is dated “3/26/2001.”
provided projections for four years of annual salary and “EO”
for each year.
The projections were for “Previously Discussed
Christo Deal” and “Proposed Christo Deal w/ CGM Acquisition.”
“Previous proposal was to give you 10% of the
companies [sic] bottom line earnings, going forward, plus $180K
package (salary plus bennies).
We figured cost of bennies were
[sic] approximately 1K/mo and your monthly pretax check would be
Chuck also provided a projected stock value and
explanation of the calculations.
“We think we are
EBITA appears to mean earnings before interest, taxes,
depreciation, and amortization.
CGM mistakenly asserts that Chuck’s spreadsheet “set forth
estimates of CGM’s projected performance after the possible CCG
a better company with you on board and want to craft a deal that
works for all of us.”
In the course of the negotiations, Chris was given an
CGM represents that the employment
agreement originated with CCG Consulting and was then modified
by CGM and its attorneys.
CGM also states that the employment
agreement was required by CCG as part of the proposed
acquisition that was being considered at that time.
testified during his deposition that there were different
versions of the employment agreement.
The acquisition by CCG
did not go through.
Chris signed the employment agreement, which is dated May
24, 2001, but has an effective date of April 23, 2001.4
testified that he gave the signed original of the agreement to
No one signed the agreement on behalf of CGM.
began to work at CGM on June 1, 2001.
The copy of the employment agreement that Chris produced is
seven pages long and jumps from Section 8 to Section 13, which
is the last section.
The agreement states that it is effective
CGM disputes that Chris signed the employment agreement at
the time it is dated and returned it to CGM. CGM also
represents that no other CGM employee has an employment
agreement. Chuck accuses Chris of signing the agreement only
after he brought suit against CGM.
Alan Schrank, who works for CGM as a contractor, testified in
his deposition that he does have a written contract with CGM
although he does not have a copy of it.
as of April 23, 2001, and is between Chris and CGM, LLC.
agreement provides that Chris will be paid an annual salary of
$170,000 in monthly installments as the base salary.
addition, Chris will “receive 10% of the annual earnings of
Company (prorated in year one), to be calculated on a calendar
year basis, and to be paid upon formal closure of the Company’s
[CGM’s] annual books.”
The agreement further provided that if the acquisition by
CCG went through, Chris’s annual salary would be reduced to
$150,000 and the bonus would be transferred “to an identical
percentage of Company’s stock in the acquiring entity.”
provided for a closing bonus after the acquisition.
to pay the cost of Chris’s existing medical benefits plan.
agreement included provisions for termination, nondisclosure of
trade secrets and confidential information, non-solicitation and
non-recruitment covenants, CGM’s right to materials and the
return of materials, and compliance with policies and laws.
last section, titled “Miscellaneous”, includes clauses for
severability, waiver, governing law, and merger.
Chris’s initial annual salary at CGM was $180,000.
end of 2001, no bonus was paid.
Chris represents that he asked
about the bonus, and Chuck told him that CGM had no earnings so
no bonus could be paid.
Chris asked to review CGM’s books, but
The same thing happened in 2002 and 2003 with
Chuck representing that the company was operating without
In 2005, Chris again asked about his bonus.
a check for $5,000.
CGM gave Chris
The subject line on the check said:
Chris understood that the check was for his
bonuses for those years.5
Chuck prepared a spreadsheet to show
that CGM was not as profitable as Chris thought it was.
As the economy generally began to decline in 2006, CGM
experienced financial difficulties.
For that reason, CGM
On October 1, 2006, Chris’s salary was
reduced to $125,000 and his medical benefit plan was also
He understood that the reduction was temporary until
Chuck told Chris that he and Kevin were making personal
financial contributions to CGM and were hoping that the
company’s finances would improve in the future.
understood that everyone was making sacrifices for the good of
Chuck said that Chris was the highest paid person
at CGM and that Chuck and Kevin were only being paid
approximately $86,000 each.
Chris represents that CGM’s
financial documents, which he has reviewed as part of this suit,
In Chris’s objection to CGM’s motion for summary judgment,
he states: “There is no dispute, however, that during those
early years, CGM struggled financially.” Doc. 48 at 3.
show that CGM’s annual earnings were much greater than Chuck and
Kevin represented them to be.
In late 2008 or early 2009, Chris thought that CGM’s
financial status had improved and asked about returning his
salary to its former amount.
Chuck and Kevin denied Chris’s
request on the ground that Chris was not maximizing his
potential at CGM.
In the spring of 2009, Chuck told Chris that
he could increase his income by earning commissions.
offered commissions to be paid on amounts received from Verizon
During his deposition, Chris agreed that the
commissions were a change in his compensation.6
CGM paid Chris
commissions from 2009 through 2015, with some changes in the
CGM’s bookkeeper from 2009 to 2011 testified during her
deposition that Kevin told her not to pay Chris his commissions
unless he asked for them.
When Chris asked for his commissions,
he was paid but received them late because of that restriction.
In June 2012, Kevin informed Chris during a meeting in
Georgia that he was an at-will employee.
Chris responded that
he was not an at-will employee because he had an employment
agreement with CGM that provided for $170,000 in salary, health
No discussion occurred about the bonuses in connection with
the commissions. Based on the record, the commissions appear to
have been aimed at increasing Chris’s production and annual
income, after the reduction in his salary.
insurance, and 10% of “annual CGM profit.”
produce the agreement.
Kevin asked Chris to
When Chris returned home, he found the
agreement in his files and mailed a copy of the employment
agreement to Kevin.7
Kevin and Chuck deny that they ever had an
employment agreement with Chris.
In late 2012, Chris asked Kevin for a raise.
salary was raised to $140,000, but in exchange, his commission
percentage was reduced.
Chris did not raise the issue of his
bonus during the compensation discussions.
By July of 2014, Chris was dissatisfied with CGM’s payment
of his commissions.
In October of 2014, Chris met with Chuck
and Kevin in Georgia.
Chuck and Kevin gave Chris options for
his compensation and employment at CGM, which involved
significant changes in both.
A second meeting was scheduled for
November 17, 2014.
Chris states that he was having financial difficulties
because of the reduction in his salary and his family’s
unanticipated medical expenses and that he had “difficulty
coming to the conclusion that Kevin and Chuck were lying to me
about CGM’s finances.”
Chris suffered a breakdown in November
During his deposition, Chris did not specifically remember
the process of mailing the agreement but believes he did mail it
because Kevin asked him to send it. Contemporaneous e-mails
between Chris and Kevin document that Chris raised the issue of
the employment agreement, that Kevin asked for a copy, and that
Chris sent a copy to Kevin by regular mail on June 26, 2012.
CGM approved a medical leave of absence for him.
terminated Chris’s employment effective January 31, 2015.
After his termination, Chris kept the laptop computer that
CGM had provided to him, which he had used for both business and
personal purposes, and other items related to his work for CGM.
Chris understood that the laptop was his, provided as a benefit.8
On May 1, 2015, CGM asked Chris to return the laptop and other
Chris returned other items but did not return the
laptop because it held personal confidential information.
Chris agreed to return the laptop after he removed his
personal information, but CGM rejected that proposal.
then removed CGM’s software and data from the laptop and
proposed to keep the laptop with his personal information.9
was disappointed that Chris had removed files from the laptop
and did not agree to let him keep the laptop.
Chris and CGM decided to have a company in Boston, Evidox,
generate an index of the programs on the laptop.
that the index was not helpful because it showed hundreds of
CGM contends that its employee handbook states that company
computers belong to CGM and that personal information on the
computers is subject to inspection. Chris states that the
employee handbook was not effective until after Chris stopped
working at CGM.
Chris states in his affidavit that he copied the software,
source code, and other intellectual property CGM wanted to a
thumb drive and provided it to CGM, through counsel. He also
proposed to “wipe the hard drive” of all of CGM’s information.
thousands of programs without sufficient analysis.
believed that additional analysis would be expensive and not
CGM contends that the Evidox index was extremely revealing
because it showed that Chris had opened dozens of CGM files
after his termination.
Kevin asserts in his declaration that
Chris did not have permission to use the laptop after his
He reviewed the index and identified thirty-eight
files that he believed Chris opened, created, or modified after
November of 2014.
The files Kevin cites include employment
applications and downloads from corporate websites for companies
outside of New Hampshire.
Kevin does not identify specific CGM
files in his declaration.
The computer is being stored at
Evidox for a monthly fee.
CGM states in an interrogatory answer that it needs to have
Chris’s laptop to check and maintain software that was developed
or compiled by Chris because that computer is “native to the
CGM also states that it had to redirect and educate
staff and hire external resources to “rewrite and work around
the issues caused by Plaintiff’s retention of CGM physical and
intellectual property,” which has cost and continues to cost
about $10,000 to $15,000 per month.
One example CGM provides is
that an issue exists for a customer that cannot be resolved
without access to Chris’s laptop.
Chris contacted employees at FairPoint Communications,
Inc., a CGM customer, to maintain his relationship with
FairPoint after he was terminated by CGM.
contacted one of the employees at FairPoint about this lawsuit,
specifically seeking information related to CGM’s motion to
dismiss for lack of personal jurisdiction or to transfer the
case to Georgia.
FairPoint’s attorney contacted CGM, told
Chris’s counsel he did not want the employee to be deposed, and
then told the parties to agree on an affidavit for that
employee, which they did.
CGM has lost revenue from FairPoint
since Chris left.
For purposes of this suit, Chris retained Paul E.
Hendrickson, C.P.A., to calculate the bonus Chris should have
received from CGM under the employment agreement.
reviewed CGM’s financial records, including tax returns, and
calculated bonuses for each year from 2001 through 2014.
Chris seeks summary judgment on his breach of contract
claim and on the counterclaims brought against him by CGM.
moves for summary judgment in its favor on Chris’s claims
Breach of Contract
“The elements of a breach of contract claim in Georgia are:
(1) a valid contract; (2) material breach of its terms; and (3)
resultant damages to the party having the right to complain that
the contract has been broken.”
Fed. Nat’l Mortg. Ass’n v.
Prowant, --- F.Supp.3d ---, 2016 WL 5243409, at *9 (N.D. Ga.
Sept. 21, 2016).10
Chris alleges that CGM breached Section 2,
paragraph 2, of the employment agreement by failing to pay him
CGM brought a counterclaim for breach of contract
against Chris based on an implied contractual duty to deliver to
CGM all intellectual property that he developed or modified
during his employment and, alternatively, on Section 7 of the
employment agreement pertaining to the return of CGM’s property.
1. Chris’s Motion for Summary Judgment on his Breach of
In his breach of contract claim, Chris contends that CGM
breached the employment agreement he signed on May 24, 2001, by
failing to pay him bonuses as provided in Section 2, paragraph 2
of the employment agreement.
Chris seeks summary judgment in
his favor on his breach of contract claim.
CGM asserts that
The parties agree that the breach of contract claim and
counterclaim is governed by Georgia law, based on the choice-oflaw provision in the contract. See Hobin v. Coldwell Banker
Residential Affiliates, Inc., 144 N.H. 626, 628 (2000).
Chris cannot prove his breach of contract claim because there
was no employment agreement, he suffered no damages, the claim
is untimely, he has waived the claim, he agreed to modify the
employment agreement, and the claim is barred by the statute of
By statute, “[t]o constitute a valid contract, there must
be parties able to contract, a consideration moving to the
contract, the assent of the parties to the terms of the
contract, and a subject matter upon which the contract can
Ga. Code. Ann. § 13-3-1.
“Under Georgia law, a
contract is enforceable if there is (a) a definite offer and (b)
complete acceptance (c) for consideration.”
Lambert v. Austin
Indus., 544 F.3d 1192, 1195 (11th Cir. 2008); Valente v. Int’l
Follies, Inc., 2016 WL 3128528, at *2 (N.D. Ga. Jan. 6, 2016).
Chris alleges in his complaint that CGM breached Section 2,
paragraph 2 of the employment agreement by failing to pay him
In his motion for summary judgment, Chris relies on
the email from Chuck dated March 27, 2001, the attached
Section 2, paragraph 2, of the employment agreement
provides: “Bonus. While employed hereunder, Employee will also
receive 10% of the annual earnings of Company (prorated in year
one), to be calculated on a calendar year basis, and to be paid
upon normal closure of the Company’s annual books.” The
paragraph goes on to explain the alternative terms in the event
CGM were acquired by CCG.
spreadsheet, and the employment agreement he signed on May 24,
2001, taken together to show that CGM owed him bonuses.
purposes of objecting to CGM’s motion for summary judgment,
Chris broadens his view of the employment agreement:
essential terms of the employment agreement between Christopher
Campbell and CGM is evidenced by three kind [sic] of documents:
emails from CGM to Christopher Campbell . . . , spreadsheets
from CGM projecting the expected bonuses to be paid annually if
Christopher Campbell joined the business . . ., and the
Employment Agreement between the parties . . . .”
Doc. No. 48
Multiple documents may be considered together as a contract
“as long as all the necessary terms are contained in signed
Bd. of Regents of Univ. Sys. Of Ga.
v. Tyson, 404 S.E. 2d 557, 559 (Ga. 1991) (internal quotation
Here, however, Chris has not addressed the
requirements for showing that the multiple documents he cites
may be considered as a single contract.
In addition, in the
complaint he specifically alleges breach of the written
employment agreement, not breach of a contract composed of
Chris does not limit CGM’s bonus obligation in the complaint
to any specific period. In his motion for partial summary
judgment, however, he appears to limit the breach of contract
claim to bonuses for 2001 through 2004, totaling $373,000. See
Doc. no. 45 at 5 (Chris’s memorandum does not have page
Because Chris cannot amend his complaint
through his motion for summary judgment, his breach of contract
claim is limited to CGM’s breach of Section 2, paragraph 2 of
the employment agreement that he signed on May 24, 2001.13
No representative signed the agreement on behalf of CGM.
Chuck denies that Chris signed the agreement and returned it to
CGM and denies that Chris had an employment agreement with CGM.
As presented in the summary judgment record, the circumstances
surrounding the employment agreement are disputed.
Chris has not shown, based on undisputed facts, that the
employment agreement he signed, with the date of May 24, 2001,
is valid and enforceable against CGM.
As a result, he is not
entitled to summary judgment in his favor on his breach of
Because Chris’s motion for summary judgment on his breach
of contract claim is denied due to material factual issues, the
In addition, as CGM points out, the written employment
agreement includes a merger clause titled “Entire Agreement”
which provides that the agreement is the “final expression of
their agreement;” “is the complete and exclusive statement of
the terms of their agreement, notwithstanding any representations, statements, or agreements to the contrary heretofore
made;” and “[t]his agreement supersedes any former agreements
governing the same subject matter.” Therefore, to the extent
the written employment agreement is enforceable, the prior
emails cannot be considered as part of the agreement.
court does not reach CGM’s defenses.
Those defenses are
considered, however, in the context of CGM’s motion for summary
CGM’s Motion for Summary Judgment on Chris’s Breach of
CGM seeks summary judgment based on its defenses of the
statute of limitations, waiver, the statute of frauds, and the
merger clause in the agreement.
Chris objects to the motion.
Statute of Limitations
CGM contends that Chris’s breach of contract claim is
governed by Georgia’s four-year limitations period because the
employment agreement was not signed by CGM.
CGM asserts that
the four-year limitation period began in 2001 and 2002 and
expired long before Chris brought suit in 2015.
that the six-year period applies and that the employment
agreement is a divisible installment contract.
Governing limitation period
“Under Georgia law, written contracts are subject to the
six-year statute of limitation imposed by OGCA § 9-3-24, whereas
oral/parol contracts are subject to the four-year statute of
limitation imposed by OCGA § 9-3-25.”
E. 2d 867, 868 (Ga. Ct. App. 2007).
Harris v. Baker, 652 S.
When an agreement is partly
in writing and partly oral or when essential terms must be
implied from oral agreements, for purposes of the statute of
limitations, the agreement is considered oral.
Id. at 869.
The six-year limitation period applies to a written contract,
however, even when the defendant’s acceptance of the contract is
by performance rather than signing.
Phoenix Recovery Gr., Inc.
v. Mehta, 663 S.E.2d 290, 291-92 (Ga. Ct. App. 2008); Hill v.
Am. Express, 657 S.E.2d 547, 548 (Ga. Ct. App. 2008).
In this case, Chris asserts that CGM breached Section 2,
Paragraph 2, of the written employment agreement.14
one signed the agreement on behalf of CGM, CGM arguably accepted
the terms of the agreement by performance when Chris began
working for CGM and was paid.
Therefore, the six-year
limitation period governs the breach of contract claim in this
case if the employment agreement is proven to be an enforceable
Application of limitation period
A cause of action for breach of contract accrues when the
breach occurs, not when the harm or result of the breach is
In contrast, the construction “agreement” in Harris
consisted of an untitled and unsigned list of construction
related items and prices with a total price and a set of
construction blue prints. The court concluded in Harris that
the documents did not provide a complete contract because they
lacked essential terms, which were agreed to separately.
Harris, 652 S.E.2d 869-70.
Dillon v. Reid, 717 S.E.2d 542, 547 (Ga. Ct. App.
Therefore, the cause of action for breach of contract in
this case ordinarily would have accrued when the employment
contract was breached, which was more than six years before
Chris brought suit.
Chris argues, however, that the employment
contract is a divisible installment contract so that the statute
of limitations runs from each failure to pay an annual bonus.
CGM contends that the employment agreement is not a divisible
installment contract and that the claim is time barred.
“When the statute of limitations begins running on a breach
of contract claim depends on whether the agreement is entire or
Baker v. Brannen/Goddard Co., 559 S.E.2d 450, 453
If the contract is divisible, the statute of
limitations “‘will run separately as to each payment or
performance when it becomes due, either as an independent
obligation or as a return for an installment of the counterperformance.’”
Carswell v. Oconee Reg’l Med. Ctr., Inc., 605
S.E.2d 879, 881 (Ga. Ct. App. 2004) (quoting Piedmont Life Ins.
Co. v. Bell, 119 S.E. 2d 63, 72 (Ga. Ct. App. 1961)).
Georgia law, “an entire contract involves a single sum certain”
while “a contract is divisible if the quantity, service, or
thing is to be accepted by successive performances.”
Unified Gov’t of Athens-Clarke County, Ga., 818 F.3d 1244, 1247-
(11th Cir. 2016); see also Cahoon v. Kubatzky, 226 S.E.2d 467,
469 (Ga. Ct. App. 1976).
Under the employment agreement, the term of employment was
for one year, unless terminated in the first year, and then
automatically renewed in one year terms unless either party
provided notice of his intent to let the agreement expire.
agreement was not terminated in the first year and presumably
automatically renewed thereafter.
The agreement also provided
that the employee would receive annual bonuses of 10% of the
company’s annual earnings, to be calculated and paid on a
calendar year basis.
The terms of the employment agreement better fit the
description of a divisible contact.
The agreement does not
provide for a single sum certain but instead promises to pay
annual bonuses that depend on the company’s annual earnings.
Therefore, the statute of limitations ran separately from each
year that the bonus was not paid.
iii. Statute of Frauds
The statute of frauds in Georgia provides that to be
binding “[a]ny agreement that is not to be performed within one
year from the making thereof . . . must be in writing and signed
by the party to be charged therewith or some person lawfully
authorized by him.”
Ga. Code Ann. § 13-5-30.
exists, however, “‘where there has been performance on one side,
accepted by the other in accordance with the contract.’”
Hemispherx Biopharma, Inc. v. Mid-South Cap., Inc., 690 F.3d
1216, 1226 (11th Cir. 2012) (quoting Ga. Code Ann. § 13-531(2)).
“The party seeking to enforce an unsigned agreement
under this exception,  must show mutuality of action; that is,
that it performed one or more acts pursuant to and in
furtherance of the contract sought to be enforced, and the other
party accepted that performance pursuant to the agreement.”
Hemispherx, 690 F.3d at 1226.
In this case, Chris contends that CGM accepted his
performance under the terms of the written employment agreement.
CGM contends that there was never a written employment
agreement, that it did not agree to the terms of the written
agreement, and that Chris only signed a draft agreement for
purposes of this case.15
It is undisputed that Chris did start
working for CGM on June 1, 2001, and continued to work at CGM
until the end of 2014.
Therefore, if there was an enforceable
written agreement that Chris signed in 2001, the statute of
frauds does not bar Chris’s breach of contract claim.
Chuck states in his declaration under penalty of perjury
that he believes Chris signed the agreement just before filing
suit. Doc. no. 44-5, ¶ 17.
CGM contends that Chris waived any breach of contract claim
for the unpaid bonuses by failing to assert promptly his right
to the unpaid bonuses.
In support, CGM relies on Clower v.
Orthalliance, Inc., 337 F. Supp. 2d 1322, 1331 (N.D. Ga. 2004).
In Clower, the plaintiff alleged that the defendant had never
fully performed under a service contract.
The court barred the
claim for breach of contract based on an election of remedies,
that is, because the plaintiff had elected to continue under the
contract, despite a lack of full performance by the defendant,
instead of bringing suit.
The court held that when the
defendant breaches the contract and the plaintiff knows that the
breach has occurred, the plaintiff must choose either to refuse
to perform and bring suit or accept the breach and continue to
perform under the contract.
Id. at 1331-32.
In this case, however, it is at least disputed whether
Chris knew that CGM was breaching the employment contact before
his employment was terminated.
Under the employment agreement,
CGM was required to pay bonuses of 10% of the company’s annual
Chuck and Kevin told Chris that the company did not
have annual earnings so no bonuses were due.
In fact, they
reduced Chris’s salary on the ground that the company was
experiencing difficult financial circumstances.
If Chris did
not know that CGM had breached the employment agreement, Chris
could not choose between the options identified in Clower.
result, CGM has not shown that Chris waived his claim through an
election of remedies.
CGM argues that the employment agreement was modified when
CGM offered and Chris accepted commissions.
CGM argues that the
commission modification changed the compensation structure so
that it was no longer required to pay bonuses.
that he never agreed to give up bonuses in exchange for
The employment agreement provides that it can only be
modified “by a written instrument signed by each of the parties
CGM provides no evidence of a written change to the
In addition, under the circumstances that
existed when CGM offered commissions, it appeared that the
commissions were intended to fill the gap between Chris’s
original salary and the lower salary he was being paid in 2009.
In any case, CGM offers no evidence that the commissions were
offered and accepted as compensation in lieu of annual bonuses.
CGM’s Breach of Contract Counterclaim
CGM alleges that Chris breached an implied contractual duty
to deliver to CGM all intellectual property that he developed or
modified during his employment.
CGM also alleges that Chris
breached section 7 of the employment agreement.
In his motion for partial summary judgment, Chris contends
that CGM cannot show that he breached the employment agreement
by failing to return the laptop computer.
In support, Chris
contends that he offered to return the computer if he could
remove personal information and that CGM cannot show damages.
Chris does not address that part of the claim brought under a
theory of an implied contract.
In its objection, CGM attempts to expand its counterclaim
to include other provisions in the employment agreement that
were not alleged in the counterclaim.16
CGM also asserts that
nominal damages may be recovered for breach of contract.
The employment agreement provides that records, software,
documents, and laptop computers, among other things, are the
property of CGM and must be returned to CGM upon termination of
Factual disputes about the enforceability of the
agreement and about Chris’s retention and use of the computer
prevent summary judgment in Chris’s favor on CGM’s counterclaim
for breach of contract.
CGM cannot amend its counterclaim in its objection to
summary judgment. See Martinez v. Petrenko, 2014 WL 12550380,
at *2 (D.N.H. Feb. 10, 2014). In addition, to the extent it
relies on the employment agreement for the claim, it must show
that the agreement is valid and enforceable, a status that CGM
Chris’s Claim for Fraud/Deceit/Misrepresentation
CGM moves for summary judgment on Chris’s fraud claim on
the grounds that the claim is untimely, that the claim is barred
by the economic loss doctrine, and that Chris cannot prove the
elements of fraud.
Chris objects, asserting that he can prove
fraud and that CGM’s defenses lack merit.
To prove fraud, Chris must show that CGM made a
representation to him “with knowledge of its falsity or with
conscious indifference to its truth and with the intention of
causing [him] to rely on the representation.”
Rockefeller, 162 N.H. 324, 332 (2011) (internal quotation marks
The parties cite New Hampshire law in support of their
motions addressing the tort claims and counterclaims, although
Chris cites both Georgia law and New Hampshire law in his motion
for summary judgment on the conversion claim. When a court sits
in diversity jurisdiction, it generally applies the substantive
law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78 (1938). When it is necessary to make a choice among
different states’ laws, the court applies the choice-of-law
rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co.,
Inc., 313 U.S. 487, 496-97 (1941). A choice-of-law provision in
a contract at issue in the case will not govern tort claims
unless the provision expressly includes such claims. Coldwell
Banker Real Estate, LLC v. Brian Moses Realty, Inc., 752 F.
Supp. 2d 148, 164 (D.N.H. 2010). Here, neither party argues
that Georgia law should be applied to the tort claims and
counterclaims under the contract clause or under New Hampshire’s
choice of law standard. Therefore, New Hampshire law governs
the tort claims.
The plaintiff’s reliance must also have been
justifiable and must have caused pecuniary loss.
Chris asserts, supported by his affidavits, that CGM
promised to pay him an annual bonus of 10% of annual earnings
and that he relied on the promise to accept and continue
employment at CGM.
He further asserts that Chuck’s
representations from 2002 through 2005 that CGM did not have
annual earnings to pay him a bonus were misrepresentations of
CGM’s financial condition and annual earnings and that CGM has
regularly misrepresented its financial condition and annual
In addition, he contends that the misrepresentations
were made intentionally to keep him working for CGM without
paying him the promised bonuses.
CGM asserts that Chris cannot
prove that any representations were made with knowledge of their
falsity and with the intent to cause his reliance.
Chris could prove his fraud claim, it is barred by the economic
Economic Loss Doctrine
Under New Hampshire law, the economic loss doctrine
“operates generally to preclude contracting parties from
pursuing tort recovery for purely economic or commercial losses
associated with the contract relationship.”
Wyle v. Lees, 162
N.H. 406, 410 (2011) (internal quotation marks omitted).
when a plaintiff cannot recover economic loss in a contract
action, the economic loss doctrine bars a tort action for
economic loss unless the claim falls within the exceptions for
circumstances when a defendant owes an independent duty to the
plaintiff and when misrepresentations precede formation of the
Id.; Plourde Sand & Gravel v. JGI Eastern, Inc., 154
N.H. 791, 796-99 (2007).
Chris contends that the economic loss doctrine does not
apply to his fraud claim because Chuck, as his twin brother,
owed him an independent duty because of their special
The special relationship exception to the
economic loss doctrine is narrow and must arise from a
relationship that imposes an additional legal duty on the
defendant outside the terms of the contract.
at 410; Plourde, 154 N.H. at 796.
See Wyle, 162 N.H.
Chris has not identified what
duty his family relationship with Chuck imposed on CGM.18
Therefore, Chris’s fraud claim is barred by the economic
As a result, it is not necessary to consider
CGM’s statute of limitations defense.
CGM is entitled to
summary judgment on the fraud claim.
The family relationship between Chris and Chuck, alone, does
not support the special relationship exception that is necessary
to avoid the economic loss doctrine. Although brothers might
hope for and even expect honest and straightforward treatment
from each other, Chris has not shown that Chuck owed him a legal
duty outside of the CGM contract.
Chris’s Consumer Protection Act (“CPA”) Claim
Chris alleges that CGM’s promise to pay him annual bonuses
of 10% of annual earnings to induce him to bring his business
and join CGM was false and deceptive in violation of the CPA,
New Hampshire RSA chapter 358-A.
He further alleges that CGM’s
failure to pay the promised bonuses and its refusal to allow him
to review the company finances was also false and deceptive in
violation of the CPA.
CGM moves for summary judgment on the
grounds that Chris cannot prove a claim under the CPA and the
claim is untimely.
The Consumer Protection Act, RSA 358-A, prohibits persons
from using “any unfair method of competition or any unfair or
deceptive act or practice in the conduct of any trade or
commerce within this state.”
RSA 358-A:2 lists
some, but not all, of the actions that fall within the Act’s
ACAS Acquisitions (Precitech) Inc. v. Hobert, 155
N.H. 381, 402 (2007).
For non-listed actions to implicate the
Act, “the objectionable conduct must attain a level of rascality
that would raise any eyebrow of someone inured to the rough and
tumble of the world of commerce.”
CGM argues that its
relationship with Chris did not arise in the context of trade or
To the extent Chris’s claim is that CGM did not fulfill the
promises it made to him under his employment agreement, he has
not shown a violation of the Act.
The New Hampshire Supreme
Court has not decided whether the Consumer Protection Act
applies to employment disputes.
Romano v. Site Acquisitions,
Inc., 2016 WL 50471, at *3 (D.N.H. Jan. 4, 2016).
in this district has determined that the New Hampshire Supreme
Court would conclude that the Act does not cover a claim based
on the breach of duties owed under an employment contract.
Don Prods., Inc. v. Malone, 2003 WL 1856420, at *3 (D.N.H. Apr.
In addition, “the mere allegation of a breach of an
employment contract, or any ordinary contract, fails to state a
Romano, 2016 WL 50471, at *3.
Chris contends, however, that CGM offered him bonuses to
induce him to close Intellinet and to bring his business to CGM.
Chuck’s emails and spreadsheet in March of 2001 support that
He further contends that after he joined CGM with those
expectations, CGM refused to make the promised bonus payments,
reduced his salary, and misrepresented the financial condition
of the company.
While an employment relationship is not subject
to the CPA, the business relationship in which Chris was induced
to close Intellinet and bring his business to CGM based on
promises of a certain salary and bonuses may be a transaction
between entities engaged in business and transacting in a
See Ellis v. Candia Trailers & Snow Equip.,
Inc., 164 N.H. 457, 465-66 (2012).
While an ordinary breach of contract claim does not show a
violation of the Act, “a defendant who induces the plaintiff to
enter a contract based on a knowing misrepresentation of the
promisor’s intent to perform under the contract violates the
Consumer Protection Act.”
*12 (D.N.H. Mar. 21, 2016).
Moulton v. Bane, 2016 WL 1091093, at
In addition, “misrepresentations
made by a defendant in an ongoing effort to avoid performing
under an agreement, when the defendant did not intend to
perform, also violate the CPA.”
As such, material factual
disputes prevent summary judgment on Chris’s claim on the
Statute of Limitations
CGM asserts, based on cases from 1995 and 1992, that “CPA
claims are subject to a two-year statute of limitations” and
that the discovery rule and equitable tolling do not apply.
CPA was amended in 1996, which extended the limitations period
to three years and incorporated a discovery rule provision.
Murray v. McNamara, 167 N.H. 474, 477 (2015).
whether a claim is exempt from the CPA, [the court] look[s] back
from the time the plaintiffs ‘knew or reasonably should have
known’ of the alleged violation.
If the transaction at issue
occurred more than three years before that time, then it is
Id. at 478.
CGM did not present a statute of limitations defense under
the governing law.
Therefore, that defense cannot support CGM’s
motion for summary judgment.
Chris’s Claim for Lost Wages under RSA Chapter 275
Chris claims the unpaid bonuses from CGM are unpaid wages
under RSA 275:42, III, and seeks an additional award under RSA
275:44, IV. CGM contends that Chris’s claim for unpaid wages is
barred because it is untimely and by the statute of frauds.
Chris agrees that his wages claim is governed by a threeyear statute of limitations.
See RSA 508:4,I.
however, that the three-year limitation period runs from each
date when the wages were due.
N.H. 9, 12 (1999).
See Rosenzweig v. Morton, 144
He contends that the three-year period runs
after his bonus was not paid each year, so that his claims for
bonuses for the three years before he filed suit are within the
CGM did not respond to Chris’s application
of the statute of limitations.
CGM also contends that Chris’s wage claim is barred by the
statute of frauds because he cannot enforce an unwritten promise
For the reasons explained above, a material
factual dispute remains as to whether there is a written
employment agreement in this case.19
Therefore, the statute of
frauds does not bar the claim for purposes of summary judgment.
CGM’s Counterclaim for Conversion
In addition to claiming that Chris breached the employment
agreement by retaining the laptop, CGM also asserts a claim of
conversion based on retention of the laptop.
Chris moves for
summary judgment, asserting that CGM cannot prove the
counterclaim because he offered to return the laptop with the
reasonable condition that he be allowed to remove his personal
CGM asserts that the laptop and the programs and
software on the laptop are CGM’s property and that good faith is
not a defense to the tort of conversion.
To succeed on a claim of conversion, the plaintiff must
show that the defendant intentionally exercised dominion or
control over the plaintiff’s property and that the defendant's
actions seriously interfered with the plaintiff’s right to the
Muzzy v. Rockingham Cty. Tr. Co., 113 N.H. 520, 523
In determining the viability of a conversion claim, the
To the extent Chris attempts to avoid the statute of frauds
by raising a theory of promissory estoppel, that claim is not
pleaded in the amended complaint. Chris cannot amend his
complaint by raising a new claim in his objection to summary
court considers “the extent and duration of the exercise of
control over the goods, the intent to assert a right
inconsistent with the other party’s right of control, and good
Kingston 1686 House, Inc. v. B.S.P. Transp., Inc., 121
N.H. 93, 95 (1981); accord Sykes v. RBS Citizens, N.A., 2016 WL
738210, at *2 (D.N.H. Feb. 23, 2016); Moulton v. Bane, 2015 WL
7274061, at *10 (D.N.H. Nov. 16, 2015).
Although “[e]arlier New
Hampshire cases held that the defendant’s good faith does not
preclude a finding of conversion, . . . [t]he court follows the
most recent conversion cases which include good faith as a
Askenaizer v. Moate, 406 B.R. 444, 452 n.6
(D.N.H. 2009); see also In re BeaconVision Inc., 2009 WL 151594,
at *5 (Bankr. D.N.H. Jan. 20, 2009).20
CGM cites a decision from the BeaconVision case, which
preceded In re BeaconVision Inc., 2009 WL 151594 (Bankr. D.N.H.
Jan. 20, 2009), to support its view that good faith is not a
defense to conversion. In re BeaconVision Inc., 340 B.R. 674,
679 (Bankr. D.N.H. 2006). In that decision, the court stated,
relying on an older New Hampshire case, that “good faith does
not rescue a party from liability,” but also stated that “the
tortfeasor must have known that his conduct was substantially
certain to result in injury.” Id. Contrary to CGM’s
representation, the rule recognized in the later decision, In re
BeaconVision Inc., 2009 WL 151594, at *5 (Bankr. D.N.H. Jan. 20,
2009), is the governing law.
CGM also relies on Lumber Ins. Cos., Inc. v. Allen, 820 F.
Supp. 33, 37 (D.N.H. 1993), in which the court considered an
issue of insurance coverage for a claim of negligent trespass
and conversion in the context of cutting trees on someone else’s
property. The court relied on a comment to the Restatement
(Second) of Torts, § 164, pertaining to intrusions onto land
held by another, to determine that the term “accident” in the
policy could include intentional conduct, such as trespass and
Significant factual disputes remain about whether Chris had
a good faith belief that he could retain the laptop and whether
his proposed solution of taking his personal information off of
the laptop before returning it was reasonable.
has not shown that he is entitled to summary judgment on CGM’s
CGM’s Counterclaim under the Computer Fraud and Abuse Act
CGM alleges that Chris was required to return the laptop to
CGM at the end of his employment there, that he did not return
the laptop, and that he accessed the laptop without
authorization and with the intent to defraud CGM and to obtain
CGM’s intellectual property from the laptop.
alleges that Chris caused damage, including financial damage to
Chris moves for summary judgment on CGM’s CFAA
counterclaim on the grounds that the laptop was not being used
in interstate commerce during the allegedly unauthorized use,
that he believed the laptop was a benefit of his employment at
CGM, that CGM has no proof that it suffered $5,000 in damages,
and that CGM caused its own loss by refusing to reach a
conversion. Id. That case is not persuasive here to show that
Chris’s good faith or reasonable belief about his retention of
the laptop, under the circumstances, is not a defense to CGM’s
reasonable accommodation for Chris’s private information on the
Under CFAA, a private cause of action exists for damages
and injunctive relief due to a loss caused by a violation of 18
U.S.C. § 1030(a).
See 18 U.S.C. § 1030(g).
provides a long list of prohibited computer conduct.
CGM does not identify which provision of § 1030(a) it
alleges Chris has violated.
Assuming that CGM intended to
proceed under §§ 1030(a)(4) and (5)(C), Chris moves for summary
judgment on the grounds that CGM lacks evidence that it has
suffered a loss of at least $5,000 and that the laptop was used
in interstate commerce.
Section 1030(a)(4) pertains to a person who “knowingly and
with intent to defraud, accesses a protected computer without
authorization, or exceeds authorized access, and by means of
such conduct furthers the intended fraud and obtains anything of
value, unless the object of the fraud and the thing obtained
consists only of the use of the computer and the value of such
use is not more than $5,000 in any 1-year period.”
1030(a)(5)(c) pertains to a person who “intentionally accesses a
protected computer without authorization, and as a result of
such conduct, causes damage and loss.”
A protected computer, in
the context of CGM, is one that is used in interstate commerce.
CGM responds with evidence that that the laptop was used to
contact sites outside of New Hampshire to show that the laptop
was used in interstate commerce.
CGM also provides evidence
that it has lost more than $5,000 because of Chris’s retention
of the computer.
Although Chris’s actions do not appear to have violated the
cited provisions of the Act, Chris did not contest the
counterclaim on the merits or challenge the materiality of CGM’s
evidence of damages.
Instead, Chris challenges the credibility
of the evidence itself.
Chris also argues that his children
used the laptop to access sites outside of New Hampshire but
does not show that their use of the laptop would not satisfy §
Summary judgment is not an appropriate vehicle for seeking
In the absence of any developed
argument on the merits, CGM has shown a factual dispute that
precludes summary judgment.
GCM’s Counterclaim for Tortious Interference
CGM alleges that Chris contacted FairPoint with the intent
to injure CGM and interfered with CGM’s contractual relations
Chris moves for summary judgment on the ground
that CGM cannot prove the claim based on an assumption that
Chris did something to interfere with its FairPoint business.
“To establish liability for intentional interference with
contractual relations, a plaintiff must show:
(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.”
Tessier, 162 N.H. 324, 337 (2011).
The intentional interference
must cause the third party not to perform under the contract.
“Thus, where contractual obligations were performed, there
can be no claim for tortious interference with contractual
In its objection, CGM states that it is undisputed that it
has had a contractual relationship with FairPoint since 2009 and
that Chris contacted FairPoint employees after he was terminated
Chris stated in his deposition that he contacted the
employees to maintain his relationships with them.
that since Chris filed the lawsuit, Kevin has had much less
communication with Tim Burns at FairPoint.
That evidence is not enough to prove intentional
interference with contractual relations.
CGM lacks any evidence
that FairPoint failed to perform under a contract with CGM
because of interference by Chris.
Therefore, Chris is entitled
to summary judgment on that part of the counterclaim brought for
intentional interference with contractual relations.
To the extent CGM intended to bring a claim for tortious
interference with prospective business relations, neither the
allegations nor the evidence support that claim.
“To state a
claim for tortious interference with a prospective contractual
relationship under New Hampshire law the plaintiff must show
that the defendant ‘induce[d] or otherwise purposely cause[d] a
third person not to . . . enter into or continue a business
relation with another’ and 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) (quoting Bricker v.
Crane, 118 N.H. 249, 252 (1978)).
CGM has evidence that Chris maintained his relationships
with FairPoint employees but no evidence that he interfered with
CGM’s relationship with FairPoint.
CGM has not presented an
affidavit or any other evidence from a FairPoint executive or
employee to show that because of Chris’s communications,
FairPoint no longer is doing business with CGM.
Instead, the evidence shows that FairPoint and its
president, Patrick McHugh, did not want to be involved in this
Therefore, any downturn in CGM’s relationship with CGM
appears to be the result of the lawsuit between Chris and CGM,
not because Chris purposefully caused FairPoint not to continue
to do business with CGM.
CGM failed to provide evidence to support its tortious
As a result, Chris is entitled to summary
judgment on that claim.
CGM’s Counterclaim for Punitive Damages
In New Hampshire, “[n]o punitive damages shall be awarded
in any action, unless otherwise provided by statute.”
“Under New Hampshire law, a claim for enhanced damages
is not a separate cause of action; it is a request for a
523 (D.N.H. 1996).
Minion Inc. v. Burdin, 929 F. Supp. 521,
Therefore, Chris is entitled to summary
judgment on CGM’s counterclaim for punitive damages.
For the foregoing reasons, the plaintiff’s motion for
partial summary judgment (document no. 45) is granted as to the
defendant’s counterclaims for tortious interference, Count Four,
and punitive damages, Count Five, and is otherwise denied.
The defendant’s motion for summary judgment (document no.
44) is granted in part and denied in part.
The six-year statute
of limitations applies to the plaintiff’s breach of contract
claim, Count I, and the employment agreement, if found to be an
enforceable contract, is a divisible installment contract.
motion is granted as to the plaintiff’s fraud claim, Count Two,
and is otherwise denied.
Now that the motions for summary judgment have been
resolved, the claims and counterclaims remaining in the case
have been determined.
Before the parties and the court spend
the considerable time and resources necessary to prepare for
trial, the parties are expected to use their best efforts to
resolve all or part of the remaining claims and counterclaims.
To that end, counsel shall carefully examine their claims,
counterclaims, and defenses to evaluate their viability, the
proof necessary to support them, and how they will present those
matters to a jury.
In particular, counsel should review and
evaluate the factual and legal issues pertaining to (1) the
existence of an enforceable employment agreement between Chris
and CGM; (2) CGM’s counterclaims that also depend on a viable
employment agreement; (3) Chris’s retention and use of the
laptop; and (4) the timeliness of the claims.
their cases, counsel should use every effort not to let personal
animosity, which appears to be evident in this case, stand in
the way of resolving issues that have stagnated, such as the
issue of the laptop.
In January of 2016, the parties anticipated participating
in mediation during the spring.
has been filed.
No further mediation statement
If they have not already done so, the court
expects the parties to participate in mediation before trial.
The parties shall file a joint mediation statement on or before
February 3, 2017, in which the parties state whether mediation
has been held or has been scheduled.
Due to the number of criminal cases currently scheduled for
the trial period beginning on February 22, 2017, the trial of
this case is rescheduled to the period beginning on March 7,
The final pretrial conference will also be rescheduled
Joseph DiClerico, Jr.
United States District Judge
January 9, 2017
Matthew T. Gomes, Esq.
Timothy John McLaughlin, Esq.
P. Shane O’Neill, Esq.
David P. Slawsky, Esq.
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