Forrester v . Wheelabrator CV-10-154-JL 1/30/12

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Forrester Environmental Services, Inc. and Keith E . Forrester

v. Civil N o . 10-cv-154-JL Opinion N o .

Wheelabrator Technologies, Inc.

SUMMARY ORDER

Defendant Wheelabrator Technologies, Inc. has moved for

reconsideration of this court’s order denying its motion for

summary judgment on Counts 1-3 of plaintiffs’ complaint.

Forrester Envtl. Servs., Inc. v . Wheelabrator Techs., Inc.,

(“Order”). Wheelabrator argues that the court made

multiple errors of law or fact in ruling that it was not entitled

to summary judgment on those claims.

The facts relevant to the motion for summary judgment are

set forth in the Order. Plaintiffs Keith Forrester and Forrester

Environmental Services, Inc. compete with Wheelabrator in the

arcane field of stabilizing toxic metals in incinerator ash.

They allege that Wheelabrator, after learning that a mutual

customer in Taiwan--Kobin--had abandoned Wheelabrator’s treatment

in favor of plaintiffs’, responded by repeatedly and falsely

telling Kobin that it owned the rights to plaintiffs’ treatment

and demanding that Kobin pay it royalties for using that treatment. Kobin reacted, plaintiffs say, by first stopping

regular purchases of chemicals from them, then terminating its

contract with them and resuming a relationship with Wheelabrator.

They assert claims for tortious interference with contract,

tortious interference with prospective advantage, unfair and

deceptive practices in violation of the Consumer Protection Act,

and misappropriation of trade secrets in violation of the Uniform

Trade Secrets Act.

In the Order, the court granted summary judgment to

Wheelabrator on the trade secret claim, concluding there was no

evidence Wheelabrator disclosed or used plaintiffs’ alleged

secret, or indeed, that it even knew the secret. Order at 29-35.

As to the other claims, however, the court denied the motion for

summary judgment, concluding that genuine issues of material fact

remained as to Wheelabrator’s statute-of-limitations defense,

including as to when plaintiffs first knew or should have known

of Wheelabrator’s alleged misconduct. Id. at 22-28. As fully

explained infra, defendants’ motion for reconsideration fails to

demonstrate any “manifest error of fact or law” in these rulings,

L.R. 7.2(e), and is therefore denied.

I. Statute of limitations

Wheelabrator first argues that the court “erred in its

application of New Hampshire’s statute of limitations, and in

2 particular, with respect to the New Hampshire ‘discovery rule’ as

set forth in [N.H. Rev. Stat. Ann. § ] 508:4, I.” Under the

statute of limitations, the plaintiffs’ claims accrued when they

“[d]iscovered, or in the exercise of reasonable diligence should

have discovered, the injury and its causal relationship to the

act or omission complained of.”

, I .

From that date, they had three years within which to file suit.

In the Order, the court concluded that, although plaintiffs

knew or should have known of their injury--Kobin’s cessation of

purchases from them--more than three years before this action was

filed in February 2010, there was evidence creating a genuine

dispute of material fact as to whether they first learned of the

causal relationship between their injury and Wheelabrator’s

alleged misstatements within the three-year period preceding the

filing of this action. Order at 23-26.

Wheelabrator disagrees with that conclusion, relying upon

the New Hampshire Supreme Court’s holding that “a plaintiff need

not be certain of [the] causal connection” between the injury and

the defendant’s misconduct, and the “possibility that [such a

connection] existed will suffice to obviate the protections of

the discovery rule.” Beane v . Dana S . Beane & Co., P.C.,

0 8 , 713 (2010). Thus, Wheelabrator argues, because

Forrester knew of the possibility that Kobin had resumed business

3 with Wheelabrator by January 2007 at the latest--as evidenced by

a letter he wrote to Kobin that month expressing concern that

Kobin could be resuming the use of Wheelabrator’s treatment--he

cannot take advantage of the discovery rule as a matter of law.

This argument fails. For the statute of limitations to

begin running under Beane, the plaintiff must know of the

possibility “that its injury was proximately caused by conduct of

the defendant.”

But, viewing Forrester’s letter in the

light most favorable to plaintiffs, all it evinces is a suspicion

that Kobin had resumed business with Wheelabrator. It does not

necessarily evince, as Wheelabrator argues, that plaintiffs

suspected that Kobin’s cessation of business with them (or its

contemporaneous resumption of business with Wheelabrator) was

caused by Wheelabrator’s misconduct. See Order at 2 5 . As

discussed in the Order, that may be a permissible inference from

the letter. It may even be the most plausible inference. But it

is by no means inescapable.

. When the record

permits competing inferences on a material factual issue,

choosing the “better” one is the role of the finder of fact at

trial, not the court on summary judgment.1 See, e.g., Montfort-

1 To promote the swift resolution of this issue, the court has scheduled an evidentiary hearing at which the parties will present evidence as to when plaintiffs discovered, or in the exercise of reasonable diligence should have discovered, Wheelabrator’s alleged misconduct. See Keshishian v . CMC

4 Rodriguez v . Rey-Hernandez,

2 1 , 228-29 (1st Cir. 2007).

This court did not err, manifestly or otherwise, in concluding

that plaintiffs’ claims were not barred by the statute of

limitations as a matter of law.

II. Elements of plaintiffs’ claims

Wheelabrator next argues that the court “misapprehended the

elements of plaintiffs’ business tort claims.” It asserts that

the court “seems” to assume, in the Order, that plaintiffs’

claims turn on “whether Wheelabrator made ‘false’ statements of

its patent rights,” but the real question is “whether

Wheelabrator believed, in good faith, that its opinions were

valid.” Mot. for Recons. (document n o . 209) at 2-3 (citing Golan

v . Pingel Enter., Inc.,

(Fed. Cir. 2002); and

Harris Wayside Furniture Co., Inc. v . Idearc Media Corp., N o . 06-

cv-392-JM,

(D.N.H. June 2 5 , 2007)).

This argument does not present a basis for the court to

revisit or revise its summary judgment ruling. As an initial

matter, Wheelabrator never raised this issue in any of the three

Radiologists,

6 8 , 179-80 (1997) (application of the discovery rule is a question of fact to be decided by the court, and may be decided following an evidentiary hearing prior to trial). This procedure was settled on at an in-chambers conference on January 1 9 , 2012, at which Wheelabrator assented to the resolution of the statute of limitations issue in this manner. See document n o . 214.

5 memoranda it filed in support of its motion for summary judgment.

Those memoranda cited neither of the two cases Wheelabrator now

relies upon, Golan and Harris Wayside Furniture, nor did they

articulate the theory Wheelabrator now presents in support of its

motion for reconsideration. A motion for reconsideration should

not be used “to advance arguments that could and should have been

presented to the district court prior to judgment.” Skinner v .

Salem Sch. Dist.,

(D.N.H. 2010); see

also Global Naps, Inc. v . Verizon New Eng., Inc.,

3 ,

25-26 (1st Cir. 2007).

More to the point, the Order does not endorse the position

Wheelabrator ascribes to i t , i.e., that plaintiffs can succeed on

their claims merely by showing that Wheelabrator’s statements to

Kobin regarding its ownership of intellectual property were

false. Such a statement of the law appears nowhere in the Order,

and Wheelabrator itself does not argue that the Order requires

any alteration. Furthermore, Wheelabrator does not claim it

would be entitled to summary judgment even if the court adopted

its theory. To the contrary, it acknowledges that, even if the

court adopts its view of the law, it will be entitled to judgment

only “[i]f the jury believes” that it had a good-faith belief in

6 the truth of its statements.2 Wheelabrator’s motion for

reconsideration provides no basis for this court to reconsider

the ruling it actually made, i.e., that the evidence in the

summary judgment record does not entitle Wheelabrator to summary

judgment on Counts 1-3 of the operative complaint.

III. Causation

Wheelabrator finally argues that the court “erred in not

granting summary judgment on the facts, in that plaintiffs have

no competent evidence that any decision made by Kobin which

allegedly resulted in damage to plaintiffs resulted from Kobin’s

reasonable reliance on Wheelabrator’s statements.” This argument

is premised on the propositions that (a) to recover on their

claims, plaintiffs must come forth with evidence to show that

Kobin’s initial cessation of purchases in late 2006 was causally

related to Wheelabrator’s misconduct, and (b) plaintiffs have not

done s o . Neither proposition is correct.

First, if plaintiffs can show that, but for Wheelabrator’s

misconduct, Kobin would have resumed purchasing chemicals from

them, they can recover damages for the sales they would have made

2 To a neutral observer, Wheelabrator’s request for reconsideration of this point might therefore seem to be a sly attempt to bolster the other submissions to the court in which it has advanced this same argument (e.g., its pretrial statement and various motions in limine). Such an attempt would, of course, be improper in the context of a motion for reconsideration.

7 in the absence of the misstatements; it is not incumbent upon

them to show that Wheelabrator was the cause of Kobin’s original

decision to stop purchases. C f . Baker v . Dennis Brown Realty,

Inc.,

4 0 , 644 (1981) (under a tortious interference

theory, a defendant may be held liable where it “induced or

otherwise caused” a party “not to enter into a contract with the

plaintiff”). To this end, plaintiffs have proffered, among other

things, an August 2007 Kobin report, authenticated by a former

Kobin employee, that suggests that Kobin was contemplating the

purchase of chemicals from plaintiffs in the future, but due to

Wheelabrator’s alleged fraud, believed it could not do so and

therefore terminated its existing contract with plaintiffs.

While Kobin resumed purchasing chemicals from plaintiffs another

six months later (at what plaintiffs contend is a substantially

lower profit margin), plaintiffs may nonetheless be entitled to

recover damages for their lost sales in the interim.

Second, plaintiffs have in fact come forward with evidence

establishing that Kobin’s decision to stop purchasing chemicals

in 2006 was caused by Wheelabrator’s misconduct. Kobin’s August

2007 report, when taken in conjunction with other evidence

summarized in the Order, could lead a reasonable trier of fact to

find that Kobin’s decision to enter into a new contract with

Wheelabrator in November 2006--and concurrent cessation of

8 chemical purchases from plaintiffs--was the direct and proximate

result of Wheelabrator’s deliberate and fraudulent claim to

ownership of the methods developed by plaintiffs. It is true

that this evidence is hardly overwhelming, and is largely

circumstantial, but that fact alone does not entitle Wheelabrator

to summary judgment. See, e.g., Montfort-Rodriguez v . Rey-

Hernandez,

2 1 , 228-29 (1st Cir. 2007) (overruling entry

of summary judgment for defendants; although plaintiff’s evidence

was “circumstantial” and “thin,” the evidence “point[ed] in

different directions” and “[s]ummary judgment cannot be

predicated on so vacillatory a record”). Wheelabrator’s motion

for reconsideration of the court’s summary judgment ruling,

insofar as it found a genuine issue as to causation, is denied.

IV. Conclusion

For the reasons set forth above, Wheelabrator’s motion for

reconsideration3 is DENIED.

3 Document n o . 209.

9 SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: January 3 0 , 2012

cc: Erik Graham Moskowitz, Esq. Michael J. Markoff, Esq. Sibley P. Reppert, Esq. Steven E . Grill, Esq. Jonathan M . Shirley, Esq.

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