Technology v . Moore, et a l . CV-02-146-M 01/24/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Technology Planning Int’l., LLC RBP Holdings, Ltd., and Dover Technologies, Ltd., Plaintiffs

v. Civil N o . 02-146-M Opinion N o .

Moore North America, Inc. and Raymond Hartman, Defendants

O R D E R

This litigation arises out of the parties’ inability to

successfully come to terms on TPI’s proposed purchase of Moore’s

Document Automation Systems business in Dover, New Hampshire. In

the wake of that impasse, TPI sued Moore seeking, among other

things, specific performance of the parties’ non-binding letter

of understanding, choosing incorrectly to view it as a binding

purchase and sale agreement. By order dated July 1 9 , 2002, the

court granted in part and denied in part Moore’s motion to

dismiss. Some of TPI’s claims (e.g., specific performance) were

plainly without legal merit and were, therefore, dismissed.

Those claims that survived did so by the thinnest of margins.

Subsequently, Moore filed counterclaims against TPI and a third party complaint against TPI’s President, Richard Piller, seeking

damages for abuse of process and violations of New Hampshire’s

Uniform Trade Secrets Act (stemming from TPI’s decision to attach

to its complaint various allegedly confidential documents that

were prepared by Moore and provided to TPI as part of its due

diligence investigation). The viability of those claims remains

to be tested. Not to be outdone, Piller responded with cross-

claims of his own against defendant Raymond Hartman.

The parties are now embroiled in discovery disputes which,

at least according to T P I , cannot be resolved without judicial

intervention. And, says T P I , until those discovery disputes are

unraveled, it is not in a position to submit a meaningful

opposition to Moore’s pending motion for summary judgment.

I. TPI’s Motion to Stay Moore’s Motion for Summary Judgment and to Compel Discovery.

Initially, it probably bears mentioning that a fair reading

of the court’s Local Rules precludes parties from submitting a

single motion that seeks disparate forms of relief and/or invokes

unrelated Federal Rules (e.g., a Rule 56(f) motion combined with

a motion to compel discovery). See generally Local Rule 7.1.

2 Turning first to that part of TPI’s motion seeking relief

under Rule 56(f), it is denied. Among other things, neither

TPI’s motion nor the supporting affidavit of counsel satisfies

Rule 56(f)’s “utility and materiality” requirements. See

Resolution Trust Corp. v . North Bridge Assoc., Inc.,

(1st Cir. 1994) (“the criterion for Rule 56(f) relief

can be thought of as embodying five requirements:

authoritativeness, timeliness, good cause, utility and

materiality.”). While TPI complains that it has not been

provided with all discovery that it has requested, it has failed

to articulate what it expects that discovery to reveal, or how

the requested discovery would support one or more of its claims,

or how it would assist TPI in defeating Moore’s pending motion

for summary judgment. See, e.g., Mass. Sch. of Law at Andover,

Inc. v . American Bar Ass’n.,

6 , 44 (1st Cir. 1998)

(“the moving papers must contain a proffer which, at a bare

minimum, articulates a plausible basis for the movant’s belief

that previously undisclosed or undocumented facts exist, that

those facts can be secured by further discovery, and that, if

obtained, there is some credible prospect that the new evidence

will create a trialworthy issue.”) (emphasis supplied).

3 As for that part of TPI’s motion seeking to compel

defendants to produce discovery, it is referred to the Magistrate

Judge.

II. Hartman’s Motion to Dismiss Piller’s Cross-Claim.

Defendant and cross-claim defendant Raymond Hartman moves to

dismiss the cross-claim filed against him by third-party

defendant and cross-claim plaintiff Richard Piller. In short,

Hartman says because he and Piller do not share a “like status”

in the case, such as co-defendants, they cannot be considered

“co-parties” under Fed. R. Civ. P. 13(g). And, because that rule

only authorizes cross-claims by one party against a “co-party,”

Piller is precluded from bringing claims against him (at least

under Rule 13(g)).

As Hartman himself candidly concedes, there is a decided

lack of agreement among courts and legal commentators on this

issue. Many have strictly interpreted the language of Rule 13

and concluded that “co-parties” are those that have a similar

status in the case, such as co-defendants. See, e.g.,

International Paving Systems, Inc. v . Van-Tulco, Inc.,

4 Supp. 6 8 2 , 695 (E.D.N.Y. 1994) (collecting cases). Others have,

however, employed a broader reading of that term, concluding that

it applies to any parties who are not adverse or opposing.1 See,

e.g., Earle M . Jorgenson C o . v . T.I. United States, Ltd.,

(E.D. P a . 1991); Mauney v . Imperial Delivery Services,

Inc.,

(S.D.N.Y. 1994). Finally, the Court of

Appeals for the Fifth Circuit has adopted an even more lenient

interpretation of the Federal Rules, concluding that “a third

party defendant may file a cross-claim against an original

defendant even if it would be inappropriate to characterize the

third party defendant as a co-defendant of the original

defendant.” Thomas v . Barton Lodge I I , Ltd.,

(5th Cir. 1999).

1 Of course, even under this more liberal interpretation of the term “co-party,” it is questionable whether it can properly be said that Piller and Hartman are not adverse or opposing, since Piller is the President of TPI (the company that sued Hartman), and Piller’s affidavit provides the factual basis for TPI’s complaint against Hartman, and the facts giving rise to TPI’s claim against Hartman are the same as those giving rise to Piller’s claims against Hartman, and Piller and TPI are represented by the same counsel. In short, it taxes the imagination far less to view Piller and Hartman as “adverse parties,” than as “co-parties.”

5 While Hartman’s argument in support of his motion to dismiss

Piller’s cross-claims certainly has some logical appeal, viewing

the situation from a slightly broader perspective, it makes

little sense to grant the relief he seeks. Even if the court

were to conclude that Piller’s efforts to pursue a cross-claim

against Hartman are not strictly authorized by the Federal Rules,

Piller could (and, in light of this case’s procedural history,

likely would) simply file a separate action against Hartman.

Then, he would likely move to consolidate the two proceedings - a

motion that would, almost certainly, be granted. Requiring

Piller to pursue that avenue is neither warranted nor prudent.

Doing so would represent an inefficient use of resources and

would add unnecessary confusion to a case that could certainly

benefit from a bit more order and clarity. See generally Fed. R.

Civ. P. 1 (providing that the Federal Rules of Civil Procedure

“shall be construed and administered to secure the just, speedy,

and inexpensive determination of every action.”). See also

Georgia Ports Authority v . Construzioni Meccaniche Industriali

Genovesi, S.P.A.,

(S.D. G a . 1988) (observing

that the Federal Rules of Civil Procedure “envision three types

of claims that may be asserted by defendants: counterclaims,

6 third-party claims, and cross-claims. Rule 13(a) provides that a

counterclaim may be brought against any ‘opposing party.’ Rule

14(a) provides that a third-party complaint may be brought

against ‘a person not a party.’ Finally, Rule 13(g) provides for

cross-claims against ‘co-parties.’ Certainly, the relationship

between an original defendant and a third-party defendant fits

somewhere into this framework. Characterizing the relationship

as that of ‘co-parties’ appears to be the logical choice.”)

(emphasis in original).

In light of the foregoing, Raymond Hartman’s motion to

dismiss the cross-claims of Richard Piller (document n o . 59) is

denied. For the convenience of the parties, the court, and,

should this matter proceed to trial, the jury, the parties will

be re-aligned to more accurately represent their interests and

positions in this case. See generally Indianapolis v . Chase

Nat’l. Bank,

(1941); U.S.I. Properties Corp. v . M.D.

Const. Co., Inc.,

(1st Cir. 1988). As noted above,

the interests of Piller and T P I , the company of which he is

president, are substantially similar. Accordingly, rather than

designating Piller as a cross-claim plaintiff and Hartman as a

7 cross-claim defendant, Piller shall be designated as simply a co-

plaintiff (along with TPI) and Hartman shall be designated as

simply a defendant.

Conclusion

Raymond Hartman’s motion to dismiss Richard Piller’s cross-

claim (document n o . 59) is denied.

TPI’s Motion to Stay Moore’s Motion for Summary Judgment and

to Compel Discovery (document n o . 5 3 ) is granted in part and

denied in part. To the extent TPI seeks relief under Fed. R.

Civ. P. 56(f), the motion (document n o . 53-1) is denied. To the

extent it seeks to compel defendants to produce discovery

materials, the motion (document n o . 53-2) is referred to the

Magistrate Judge.

TPI’s Motion for Clarification (document n o . 6 8 ) is granted.

Because the court has now ruled on (and denied) TPI’s motion to

stay, TPI shall file an objection to Moore’s pending motion for

summary judgment on or before February 2 1 , 2003.

8 Other, miscellaneous pending motions are resolved as

follows:

Moore’s Motion for Default Judgment (document n o . 47) is denied.

Hartman’s Motion for Entry of Default Judgment (document n o . 4 6 ) is likewise denied.

The Petition to Attach with Notice (document n o . 60) filed by TPI and Piller is denied, without prejudice. Among other things, TPI and Piller have failed to point to any legal authority supportive of their assertion that this court may properly issue a writ of attachment against real and personal property located in Connecticut (i.e., beyond the jurisdictional reach of this court).

Hartman’s Motion to Dismiss Plaintiff Technology Planning International, LLC’s and “Cross-Claim Plaintiff” Richard W . Piller’s Petition to Attach (document n o . 67) is denied as moot, in light of the court’s denial of the petition to attach.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 2 4 , 2003

cc: William M . Richmond, Esq. Theresa D. O’Toole, Esq. Daniel P. Luker, Esq. Sigmund D. Schutz, Esq. Arpiar G. Saunders, Jr., Esq.

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