Campbell v. CGM, LLC

Filing 65

///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

Christopher Campbell
v.

Civil No. 15-cv-088-JD
Opinion No. 2017 DNH 004

CGM, LLC

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
relief.

Both Campbell and CGM have filed motions for summary

judgment.
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).
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.
2012).
Evidentiary Issues
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
2

Szarek had not been disclosed as an expert witness.

The court

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.

Specifically, CGM

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.’”

Colburn v.

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
3

contradicting his earlier sworn testimony without a satisfactory
explanation of why the testimony has changed.”
Ford, 241 F.3d 69, 74 (1st Cir. 2001).

Abreu-Guzman v.

“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.

The affidavit

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.

Further, Campbell

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.
4

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.
Background
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.
1

5

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
telephone companies.

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.

In early

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

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package plus 10% of EBITDA.”2

The new proposal was “$160K annual

package plus 6% of EBITDA plus 10% of CCG stock.”

Chuck noted

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
not acquired.3

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
something inked.”
Chuck attached a spreadsheet to the email that is titled
“Christo CGM deal” and is dated “3/26/2001.”

The spreadsheet

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.”
Chuck stated:

“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
$14K.”

Chuck also provided a projected stock value and

explanation of the calculations.

Chuck wrote:

“We think we are

EBITA appears to mean earnings before interest, taxes,
depreciation, and amortization.
2

CGM mistakenly asserts that Chuck’s spreadsheet “set forth
estimates of CGM’s projected performance after the possible CCG
acquisition.”
3

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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
employment agreement.

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.

Chuck

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

He

testified that he gave the signed original of the agreement to
Chuck.

No one signed the agreement on behalf of CGM.

Chris

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.
4

8

as of April 23, 2001, and is between Chris and CGM, LLC.

The

agreement provides that Chris will be paid an annual salary of
$170,000 in monthly installments as the base salary.

In

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.

It also

CGM agreed

to pay the cost of Chris’s existing medical benefits plan.

The

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.

The

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.

At the

Chris represents that he asked

about the bonus, and Chuck told him that CGM had no earnings so
no bonus could be paid.
Chuck refused.

Chris asked to review CGM’s books, but

The same thing happened in 2002 and 2003 with
9

Chuck representing that the company was operating without
earnings.
In 2005, Chris again asked about his bonus.
a check for $5,000.
2004 (Thanks!).”

CGM gave Chris

The subject line on the check said:

“2001-

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.
reduced salaries.

For that reason, CGM

On October 1, 2006, Chris’s salary was

reduced to $125,000 and his medical benefit plan was also
changed.

He understood that the reduction was temporary until

business improved.
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.

Chris

understood that everyone was making sacrifices for the good of
the company.

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.
5

10

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.

CGM

offered commissions to be paid on amounts received from Verizon
and FairPoint.

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
commission plan.
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.
6

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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.

Chris’s

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.
7

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of 2014.

CGM approved a medical leave of absence for him.

CGM

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
CGM property.

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.

Chris

then removed CGM’s software and data from the laptop and
proposed to keep the laptop with his personal information.9

CGM

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.

Chris contends

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.
8

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.
9

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thousands of programs without sufficient analysis.

Chris

believed that additional analysis would be expensive and not
necessarily productive.
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
termination.

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
software.”

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.
14

Chris contacted employees at FairPoint Communications,
Inc., a CGM customer, to maintain his relationship with
FairPoint after he was terminated by CGM.

Chris’s counsel

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.

Hendrickson

reviewed CGM’s financial records, including tax returns, and
calculated bonuses for each year from 2001 through 2014.
Discussion
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
against it.

15

CGM

A.

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
bonuses.

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
Contract Claim
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).
10

16

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
frauds.
a.

Employment agreement

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
operate.”

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
bonuses.11

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.
11

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spreadsheet, and the employment agreement he signed on May 24,
2001, taken together to show that CGM owed him bonuses.

12

For

purposes of objecting to CGM’s motion for summary judgment,
Chris broadens his view of the employment agreement:

“The

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

at 3.
Multiple documents may be considered together as a contract
“as long as all the necessary terms are contained in signed
contemporaneous writings.”

Bd. of Regents of Univ. Sys. Of Ga.

v. Tyson, 404 S.E. 2d 557, 559 (Ga. 1991) (internal quotation
marks omitted).

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
numbers).
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multiple documents.

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.

Therefore,

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
contract claim.
b.

CGM’s Defenses

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.
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court does not reach CGM’s defenses.

Those defenses are

considered, however, in the context of CGM’s motion for summary
judgment.
2.

CGM’s Motion for Summary Judgment on Chris’s Breach of
Contract Claim

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.
a.

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.

Chris argues

that the six-year period applies and that the employment
agreement is a divisible installment contract.
i.

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).

20

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

Although no

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
contract.
ii.

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.
14

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discovered.
2011).

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
divisible.”

Baker v. Brannen/Goddard Co., 559 S.E.2d 450, 453

(Ga. 2002).

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)).

Under

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.”

Wood v.

Unified Gov’t of Athens-Clarke County, Ga., 818 F.3d 1244, 1247-

22

(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.

The

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.

23

An exception

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.
15

24

iv.

Waiver

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.

Id.

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
earnings.

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
25

could not choose between the options identified in Clower.

As a

result, CGM has not shown that Chris waived his claim through an
election of remedies.
v.

Modification

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.

Chris contends

that he never agreed to give up bonuses in exchange for
commissions.
The employment agreement provides that it can only be
modified “by a written instrument signed by each of the parties
hereto.”

CGM provides no evidence of a written change to the

employment agreement.

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.
3.

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

26

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
employment.

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
disputes.
16

27

B.

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.
1.

Fraud

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.”

17

Tessier v.

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.
17

28

omitted).

The plaintiff’s reliance must also have been

justifiable and must have caused pecuniary loss.

Id.

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
earnings.

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.

Even if

Chris could prove his fraud claim, it is barred by the economic
loss doctrine.
2.

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).

29

Even

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
contract.

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
relationship.

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
loss doctrine.

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.
18

30

C.

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.
1.

Merits

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.

RSA 358-A:2 lists

some, but not all, of the actions that fall within the Act’s
prohibition.

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.”

31

Id.

CGM argues that its

relationship with Chris did not arise in the context of trade or
commerce.
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).

Another judge

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.

Jon-

Don Prods., Inc. v. Malone, 2003 WL 1856420, at *3 (D.N.H. Apr.
10, 2003).

In addition, “the mere allegation of a breach of an

employment contract, or any ordinary contract, fails to state a
CPA claim.”

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
claim.

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
32

promises of a certain salary and bonuses may be a transaction
between entities engaged in business and transacting in a
business context.

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.”

Id.

As such, material factual

disputes prevent summary judgment on Chris’s claim on the
merits.
2.

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.

The

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).

“To determine

whether a claim is exempt from the CPA, [the court] look[s] back

33

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
exempt.”

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.
D.

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.

He argues,

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
limitations period.

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

34

for bonuses.

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.
E.

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
information.

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
property.
(1973).

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
judgment.
19

35

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
faith.”

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
relevant factor.”

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
20

36

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.

Therefore, Chris

has not shown that he is entitled to summary judgment on CGM’s
conversion counterclaim.
F.

CGM’s Counterclaim under the Computer Fraud and Abuse Act
(“CFAA”)
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.

CGM further

alleges that Chris caused damage, including financial damage to
CGM.

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
conversion claim.
37

reasonable accommodation for Chris’s private information on the
laptop.
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).

Section 1030(a)

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.”

Section

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.
§ 1030(e)(2)(B).
38

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 §
1030(e).
Summary judgment is not an appropriate vehicle for seeking
credibility determinations.

In the absence of any developed

argument on the merits, CGM has shown a factual dispute that
precludes summary judgment.
G.

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
with FairPoint.

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.

39

“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.
Id.

“Thus, where contractual obligations were performed, there

can be no claim for tortious interference with contractual
relations.”

Id.

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
from CGM.

Chris stated in his deposition that he contacted the

employees to maintain his relationships with them.

Kevin states

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.
40

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
case.

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.

41

CGM failed to provide evidence to support its tortious
interference claim.

As a result, Chris is entitled to summary

judgment on that claim.
H.

CGM’s Counterclaim for Punitive Damages
In New Hampshire, “[n]o punitive damages shall be awarded

in any action, unless otherwise provided by statute.”
507:16.

RSA

“Under New Hampshire law, a claim for enhanced damages

is not a separate cause of action; it is a request for a
particular remedy.”
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.
Conclusion
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.

The

motion is granted as to the plaintiff’s fraud claim, Count Two,
and is otherwise denied.
42

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.

In examining

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
43

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,
2017.

The final pretrial conference will also be rescheduled

accordingly.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
January 9, 2017
cc:

Matthew T. Gomes, Esq.
Timothy John McLaughlin, Esq.
P. Shane O’Neill, Esq.
David P. Slawsky, Esq.

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