UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Andrea Pollack and Angela Garozzo Scopelianos, Plaintiffs v. Case No. 20-cv-825-SM Opinion No.

Goodwin & Associates Hospitality Services, LLC d/b/a Goodwin Recruiting, Eric Goodwin, and Scott Gaba, Defendants

O R D E R

Plaintiffs, Andrea Pollack and Angela Garozzo Scopelianos,

filed suit against defendant Goodwin & Associates, LLC, d/b/a

Goodwin Recruiting, and its officers, Eric Goodwin and Scott

Gaba, asserting wage claims under federal and state law, as well

as a panoply of additional state law claims. For their part,

defendants have asserted multiple counterclaims against the

plaintiffs, including claims for breach of contract,

misappropriation of trade secrets, intentional interference with

economic relationships, negligent interference with contract,

conversion, unjust enrichment, and violation of New Hampshire’s

Consumer Protection Act.

Plaintiffs have moved to dismiss all defendants’

counterclaims. Plaintiffs have also moved for sanctions and ask

the court to strike certain allegations set forth in defendants’

1 counterclaims. Plaintiffs’ motion for sanctions is denied;

their motion to dismiss is granted in part and denied in part.

BACKGROUND

The facts are drawn from defendants’ answer and

counterclaims, taking the well-pleaded allegations as true for

purposes of evaluating the motion to dismiss. See Ruivo v.

Wells Fargo Bank,

(1st Cir. 2014).

Defendant Goodwin Recruiting (“Goodwin”) is an employee

recruiting firm based in New Hampshire. Eric Goodwin and Scott

Gaba serve as officers of the company – Goodwin as President,

and Gaba as Chief Operating Officer. Goodwin recruits

candidates to fill job openings on behalf of its clients,

employers in the hospitality industry.

Defendants allege that, in its 21 years of operation,

Goodwin Recruiting has invested heavily in establishing,

developing, and maintaining confidential and propriety

information and materials, business strategies, client contacts,

business contacts, markets, and products. Counterclaim ¶ 7.

The company has developed customer goodwill through its

employees and independent contractors “who are entrusted with

confidential, proprietary, and/or trade-secret information and

access to customers as part of the essential functions they

provide” to Goodwin Recruiting. Counterclaim ¶ 9. To secure

2 that information, the company requires independent contractors

partnering with Goodwin to enter into agreements that contain

nondisclosure, noncompete, and non-solicitation provisions.

Andrea Pollack lives in Florida. She joined Goodwin

Recruiting as an independent contractor on May 12, 2015. Angela

Scopelianos lives in Arizona. She joined the company as an

independent contractor on November 6, 2017. Both plaintiffs

executed multiple agreements with the company, including an

independent contractor agreement, a nondisclosure agreement, and

a noncompete agreement. Under the independent contractor

agreement, both plaintiffs agreed to affiliate their recruiting

businesses with Goodwin Recruiting in return for payment of

commissions based on percentages of fees generated from the

placement of candidates with clients. Over the course of their

affiliation, Scopelianos and Pollack received and retained

commissions paid by Goodwin Recruiting.

Scopelianos and Pollack also agreed to “various

nondisclosure, non-solicitation, and other protective

provisions” included in the agreements they executed, and they

“acknowledged that Goodwin Recruiting has invested substantial

labor and financial capital in the establishment of its

reputation, intellectual property, confidential and proprietary

information and materials, business strategies, client contacts

and business contacts.” Counterclaim ¶¶ 38-39. Scopelianos and

3 Pollack agreed they would keep all “confidential and trade

secret information”1 relating to the company “strictly

confidential”; agreed that, after termination of their business

relationship with the company, “all client lists, fee

agreements, training materials, marketing materials, candidate

files, and any and all materials essential to the operations of

Goodwin Recruiting” could not be used except for the benefit of

Goodwin Recruiting; and agreed not to “use, compete or profit

from any contacts or relationships with clients that [they have]

developed based upon Confidential Information.” Counterclaim ¶¶

41, 45.

Under the noncompete agreements, Pollack and Scopelianos

also agreed “to refrain from soliciting other independent

contractors and employees of Goodwin Recruiting,” and to

“refrain from soliciting or contracting with any client that

[they] serviced and that engaged Goodwin Recruiting for any

1 “Confidential information” is defined in the contracts as “all information or material that has or could have commercial value or other utility in the business in which Goodwin Recruiting is engaged,” and includes “client contact or client business information obtained by the Contractor” as a result of the contractor’s affiliation with Goodwin Recruiting. Counterclaim ¶ 44. The noncompete agreements signed by Scopelianos and Pollack included as “confidential and proprietary” the company’s “client lists, sales force data, employee candidates and resumes, and fee agreements.” Counterclaim ¶ 47.

4 purpose during the” duration of their affiliation with the

company. Counterclaim ¶ 47.

On April 27, 2020, Pollack and Scopelianos ended their

affiliation with Goodwin Recruiting. On May 4, 2020, Pollack

filed Articles of Organization with the Florida Secretary of

State, establishing “A1A Recruiting LLC,” which lists Pollack

and Scopelianos as A1A’s managers. A1A provides “meaningful

options and recruiting strategies” for candidates and employers

in many industries, including the hospitality industry.

Counterclaim ¶ 54. According to defendants, A1A is in direct

competition with Goodwin Recruiting.

Defendants allege that, by establishing and operating A1A,

Pollack and Scopelianos have violated their contractual

agreements with defendants by “using and misappropriating

Goodwin Recruiting’s confidential information and trade

secrets,” and by “utilizing confidential client information

obtained in the course of working with Goodwin Recruiting to

solicit business from Goodwin Recruiting clients.” Counterclaim

¶¶ 62-63. More specifically, defendants allege that Arooga’s

Grille House & Sports Bar (“Arooga’s”) was an “active and

lucrative” client of the Goodwin company since 2012. From April

2017, though April 2020, Pollack served as Arooga’s principal

contact at Goodwin Consulting. From June 2016, through April

2020, Goodwin Recruiting placed at least 21 candidates with

5 Arooga’s. However, since Pollack’s and Scopelianos’s departure

in April 2020, the company says it has not placed any candidates

with Arooga’s. Moreover, Arooga’s has informed representatives

of Goodwin Recruiting that Arooga’s is working with other

recruiters. Defendants contend that Pollack and Scopelianos

solicited Arooga’s and are now performing recruiting services on

Arooga’s behalf.

Defendants further allege that Pollack and Scopelianos have

violated their contractual agreements by contacting Patrick

McKee, an independent contractor affiliated with Goodwin

Recruiting, and discussing with him his contractual obligations

to Goodwin Recruiting. Defendants surmise that plaintiffs were

attempting to gauge McKee’s loyalty to Goodwin Recruiting, and,

potentially, to solicit him to work for A1A. Defendants further

allege that plaintiffs have contacted other independent

contractors affiliated with Goodwin Consulting, and attempted to

solicit them to work at A1A as well.

Based on the foregoing, defendants assert claims for

injunctive relief, specific performance, breach of contract,

misappropriation of trade secrets, intentional interference with

economic relationships, negligent interference with contract,

conversion, unjust enrichment, and violation of New Hampshire’s

Consumer Protection Act. Plaintiffs promptly moved to dismiss

all of defendants’ claims against them.

6 MOTION FOR RULE 11 SANCTIONS

Plaintiffs also filed a separate motion for sanctions,

asking the court to strike from defendants’ counterclaims those

allegations relating to Arooga’s. Plaintiffs say that the

Arooga’s allegations are “objectively and demonstrably false,”

and that defendants either knew the allegations were false when

they asserted them or asserted the allegations without

sufficiently investigating their veracity. Pls.’ Mem. in

Support of R11 Motion at 1. In support of their argument,

plaintiffs submit a sworn statement from Gary Heuther, Jr., the

president of Arooga’s, who oversees recruiting by outside

agencies. In his affidavit, Heuther states that Arooga’s has

not done any business with A1A, and that Arooga’s has not been

solicitated by Pollack or Scopelianos. Heuther states that

Arooga’s has not worked with any outside recruiting companies

since May 2020, due to the economic impact of the COVID-19

pandemic on its business. And, Heuther says, he has informed

various representatives of Goodwin Recruiting of that fact on

several occasions (i.e., that Arooga’s did not require

recruiting assistance because of COVID-19’s impact). Both

plaintiffs submit affidavits, as well. They attest that they

have neither solicited nor worked with Arooga’s since leaving

Goodwin Recruiting, and they have not entered into any type of

business relationship with Arooga’s.

7 Plaintiffs argue that the affidavits from Heuther,

Scopelianos, and Pollack – the three parties who possess first-

hand knowledge about whether plaintiffs solicited or conducted

business with Arooga’s – demonstrate the “fallaciousness” of

defendants’ Arooga’s-related allegations, and call into question

the reasonableness of any pre-filing inquiry defendants may have

conducted. Pls.’s Mem. in Support of R11 Motion at 7. And,

plaintiffs say, by persisting with their counterclaims after it

became apparent that those claims lacked evidentiary support,

defendants are needlessly increasing litigation costs, and

causing unnecessary delay. Accordingly, plaintiffs ask the

court to strike all references relating to Arooga’s from

defendants’ counterclaims. They also ask for an award of

plaintiffs’ fees and costs associated with filing their motion

for sanctions.

In response, defendants argue that the affidavits of

plaintiffs and Heuther are not conclusive proof that defendants’

allegations are false; and that they ought to have the

opportunity to explore the relationship between Arooga’s and

plaintiffs in the course of discovery. Defendants also insist

that their pre-filing investigation was reasonable, as, prior to

filing their counterclaims, several Goodwin Recruiting

affiliates were told by Arooga’s employees that Arooga’s was

working with other recruiters, specifically a recruiter named

8 “Angela” (who, defendants assumed, was the plaintiff, Angela

Scopelianos).

“Rule 11 permits a court to impose sanctions on a party or

lawyer for advocating a frivolous position, pursuing an

unfounded claim, or filing a lawsuit for some improper purpose.”

CQ Int'l Co. v. Rochem Int'l, Inc., USA,

(1st

Cir. 2011) (citing Fed. R. Civ. P. 11(b)). As the Court of

Appeals for this circuit has stated, the Rule “is not a strict

liability provision, and a showing of at least culpable

carelessness is required before a violation of the Rule can be

found.”

(quoting Citibank Global Mkts., Inc. v. Santana,

(1st Cir. 2009)). “The mere fact that a claim

ultimately proves unavailing, without more, cannot support the

imposition or Rule 11 sanctions.”

(quoting Protective Life

Ins. Co. v. Dignity Viatical Settlement Partners, L.P.,

(1st Cir. 1999) (alterations omitted)). Finally, whether

a litigant breaches his or her duty under Rule 11 to “conduct a

reasonable inquiry into the facts and the law” “depends on the

objective reasonableness of the litigant's conduct under the

totality of the circumstances.” Navarro-Ayala v. Nunez,

(1st Cir. 1992) (internal quotation marks

omitted).

Plaintiffs’ motion presents a legitimate issue, but it is

premature. “[A]lthough framed as a motion for sanctions,

9 [plaintiffs] really ask[] the court to adjudicate [defendants’

counterclaims] on the merits and dismiss them as lacking in

factual support.” Allscripts Healthcare, LLC v. DR/Decision

Res., LLC,

, 51–52 (D. Mass. 2020). A Rule 11

motion “should not be employed ... to test the sufficiency or

efficacy of allegations in the pleading; other motions are

available for those purposes.”

(quoting E.E.O.C. v. Pines

of Clarkston, Inc.,

, at *2 (E.D. Mich. Nov. 20,

2014) (further quotations omitted)). “Accordingly, the better

course is to adjudicate the merits of a party's claims through

summary judgment and address the issue of Rule 11 sanctions at

the end of the litigation.”

(citing Lichtenstein v.

Consolidated Serv. Group, Inc.,

(1st Cir. 1999)

(“Courts should, and often do, defer consideration of certain

kinds of sanctions motions until the end of [the litigation] to

gain a full sense of the case.”) (further citations omitted)

(modifications in Allscripts, 495 F. Supp. 3d at 52).

For those reasons, plaintiffs’ motion for Rule 11 sanctions

is denied at this time, without prejudice to refiling should the

counterclaims prove to be frivolous and unsupported by any good

faith belief with respect to the underlying facts.

10 MOTION TO DISMISS COUNTERCLAIMS

STANDARD OF REVIEW

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences

in favor of the pleader.” SEC v. Tambone,

(1st Cir. 2010). Although the complaint need only contain “a

short and plain statement of the claim showing that the pleader

is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege

each of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face,” Ashcroft v.

Iqbal,

(2009) (citation and internal

punctuation omitted). In other words, “a plaintiff's obligation

to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Bell Atl. Corp.

v. Twombly,

(2007). Instead, the facts

alleged in the complaint must, if credited as true, be

sufficient to “nudge[ ] [plaintiff's] claims across the line

from conceivable to plausible.”

.

Generally, a court must decide a motion to dismiss

exclusively upon the allegations in the complaint and the

documents attached or convert the motion into one for summary

11 judgment. See Fed. R. Civ. P. 12(2). There is, however, an

exception to that general rule, as “[a] district court may also

consider ‘documents incorporated by reference in [the

complaint], matters of public record, and other matters

susceptible to judicial notice.’” Giragosian v. Ryan,

(1st Cir. 2008) (quoting In re Colonial Mortgage Bankers

Corp.,

(1st Cir. 2003)) (alterations in

original).

DISCUSSION

As mentioned, plaintiffs have moved to dismiss all

defendants’ counterclaims. In so moving, plaintiffs point out

that defendants’ counterclaims are “stunningly light on facts,”

and that defendants’ repeated allegations relating to plaintiffs

“directly competing” with Goodwin Recruiting are mostly

irrelevant, since none of the agreements entered into by the

parties prohibit plaintiffs from working in direct competition

with defendants. Plaintiffs also contend that defendants’

counterclaims are repetitive, and largely conclusory.

Rather than addressing each of defendants’ counterclaims

for injunctive relief, specific performance, breach of contract,

conversion, and intentional interference with contract, and

explaining why defendants have failed to state a claim,

plaintiffs’ challenge is both sweeping and general. Plaintiffs

12 broadly argue that all of defendants’ counterclaims should be

dismissed because defendants fail to sufficiently allege that

plaintiffs did anything wrong. Plaintiffs also argue that

defendants’ counterclaim allegations are simply implausible.

But, notably lacking from plaintiffs’ motion is any discussion

of relevant legal standards, or citations to persuasive legal

authority relevant to each claim.

“It is not enough merely to mention a possible argument in

the most skeletal way, leaving the court to do counsel's work,

create the ossature for the argument, and put flesh on its

bones.” United States v. Zannino,

(1st Cir.

1990). “[A] litigant has an obligation to spell out its

arguments squarely and distinctly, or else forever hold its

peace.”

See also Higgins v. New Balance Athletic Shoe,

Inc.,

(1st Cir. 1999) (“The district court is

free to disregard arguments that are not adequately developed”).

While it is conceivable that viable arguments might support the

plaintiffs’ position — the court offers no opinion on that point

— at this juncture, plaintiffs have failed to develop arguments

concerning most of defendants’ counterclaims. See generally

Int'l Tape Co. v. Technicote, Inc.,

at *3

(D.N.H. April 21, 2000) (discussing why courts should be

reluctant to embrace legal arguments that have not been

presented by the parties). See also Coons v. Industrial Knife

13 Co.,

(1st Cir. 2010) (“We have frequently

emphasized that judges are not obligated to do a party's work

for him, searching sua sponte for issues that may be lurking in

the penumbra of the motion papers. This is particularly true

where, as here, the undeveloped argument raises complexities

that defy an easy answer.”) (citations omitted).

Because plaintiffs have not sufficiently developed an

argument that explains why defendants fail to state

counterclaims for injunctive relief, specific performance,

intentional interference with contract, conversion, and breach

of contract, plaintiffs’ motion to dismiss is denied without

prejudice as to those claims.

1. Misappropriation of Trade Secrets

Defendants assert a claim for misappropriation of trade

secrets pursuant to New Hampshire’s Uniform Trade Secrets Act.

Plaintiffs urge dismissal of the claim, arguing that defendants

fail to sufficiently allege trade secret misappropriation, and

that defendants’ allegations amount to little more than a

formulaic recitation of claim elements.

To state a misappropriation claim under New Hampshire’s

UTSA, a party “must plead facts sufficient to establish that (1)

it had a trade secret; (2) defendants used it; and (3)

defendants knew or had reason to know that they obtained

14 knowledge of the trade secret through a breach of confidence

reposed in them.” Wilcox Indus. Corp. v. Hansen,

(D.N.H. 2012) (citing N.H. Rev. Stat. Ann. § 350–

B:1). The statute defines a “trade secret” as “information that

‘[d]erives independent economic value ... from not being

generally known’ and that ‘[i]s the subject of efforts that are

reasonable under the circumstances to maintain its secrecy.’”

Id. (quoting N.H. Rev. Stat. Ann. § 350–B:1, IV).

Defendants’ misappropriation claim is mostly comprised of

conclusory allegations, that lack factual support. However, at

this juncture, the allegations are barely sufficient to meet the

threshold for stating a plausible claim for misappropriation.

First, defendants have plausibly alleged the existence of a

trade secret. See Counterclaim ¶ 7. Plaintiffs correctly note

that defendants’ allegations concerning their trade secrets are

vague, and the “trade secrets” at issue are somewhat ill-

defined. However, defendants’ allegations are bolstered by the

precautions they took to safeguard the confidentiality of the

information identified. Defendants allege that they required

the company’s independent contractors to enter into multiple

agreements that contained non-disclosure provisions, including a

nondisclosure agreement, pursuant to which these plaintiffs

agreed to “maintain the Confidential Information in strictest

confidence for the sole and exclusive benefit of [Goodwin

15 Recruiting].” Id. at ¶ 45. See, generally, Counterclaim ¶¶ 38-

48. “Those actions suggest that the information was not

generally known to the public.” Adhesive Techs., Inc. v.

Isaberg Rapid AB, No. 10-CV-75-SM,

, at *14

(D.N.H. May 26, 2011) (citing MedioStream, Inc. v. Microsoft

Corp.,

(E.D. Tex., 2010) (holding that

factual allegation regarding the protective steps taken by the

plaintiff rendered plausible plaintiff's allegation that the

information was not generally known to the public)).

Defendants’ allegations regarding plaintiffs’ use of their

trade secrets are also meagre, but sufficient. The majority of

defendants’ allegations concerning plaintiffs’ use of trade

secret information are either too vague or implausible to pass

muster. That plaintiffs started a competing recruiting business

does not, by itself, support the conclusion that plaintiffs are

using defendants’ confidential information in the conduct of

that business. Indeed, the sole factual allegation supporting

defendants’ contention appears to be that plaintiffs allegedly

used defendants’ confidential information in soliciting and

performing recruiting services for Arooga’s (a client served by

Pollack while affiliated with Goodwin Recruiting). But, at this

early stage, defendants’ allegations are sufficient to withstand

plaintiffs’ motion to dismiss.

16 Finally, defendants have sufficiently alleged that

plaintiffs used defendants’ trade secrets “despite knowing or

having reason to know that they obtained knowledge of those

trade secrets through improper means.” Wilcox Indus. Corp. v.

Hansen,

(D.N.H. 2012). As discussed,

defendants have alleged that plaintiffs signed multiple

agreements, all of which contractually obligated them to

maintain the confidentiality of defendants’ trade secret

information. Plaintiffs, therefore, knew of their obligation to

keep the information confidential. Defendants further allege

that plaintiffs used that “confidential client information

obtained in the course of working with Goodwin Recruiting” in

their solicitation of Goodwin Recruiting’s clients, specifically

Arooga’s. Counterclaim ¶ 63. At this stage, defendants’

allegations are sufficient to state a claim.

Because defendants have sufficiently stated a counterclaim

for misappropriation of trade secrets, plaintiffs’ motion to

dismiss the claim is necessarily denied.

2. Unjust Enrichment

To state a viable claim for unjust enrichment under New

Hampshire law, “a plaintiff must plausibly allege that the

defendant was enriched at the plaintiff's expense through

either: (1) wrongful acts; or (2) ‘passive acceptance of a

17 benefit that would be unconscionable to retain.’” Camp v. Bimbo

Bakeries USA, Inc., No. 18-CV-378-SM,

, at *6

(D.N.H. Dec. 17, 2018) (quoting Kowalski v. Cedars of Portsmouth

Condo. Ass'n,

(2001)). In support of their

claim, defendants allege that, if the court determines that

plaintiffs were incorrectly classified as independent

contractors, and awards plaintiffs the damages they demand,

plaintiffs will be unjustly enriched if they are permitted to

retain the commissions they received as independent contractors.

Thus, defendants’ unjust enrichment theory is essentially

that, should the court determine that plaintiffs were, indeed,

employees of Goodwin Recruiting, plaintiffs were unjustly

enriched when they received commissions-based fees generated

from the plaintiffs’ placement of candidates with Goodwin

Recruiting’s clients. However, defendants also benefited from

this arrangement: as a result of plaintiffs’ efforts, Goodwin

Recruiting received the candidate placement fees.

This court addressed a similar scenario in Camp v. Bimbo

Bakeries USA, Inc., No. 18-CV-378-SM,

, at *1

(D.N.H. Apr. 3, 2019), a FLSA action involving bakery delivery

drivers who, like plaintiffs, contested their classification as

independent contracts. Defendants in that case also asserted a

counterclaim for unjust enrichment. Plaintiffs moved to dismiss

the counterclaim. The court wrote:

18 Plaintiffs were “enriched” as a result of their efforts to sell Bimbo Bakeries’ products. Plaintiffs were also “enriched” as a result of their agreements to perform various advertising services on behalf of Bimbo Bakeries. And, plaintiffs likely were able to avail themselves of various tax deductions available to independent contractors. But, none of that inured to Bimbo Bakeries’ detriment. Indeed, Bimbo Bakeries were also “enriched” as a result of their relationships with plaintiffs and benefited financially from plaintiffs’ efforts to both advertise and sell Bimbo Bakeries’ products. And, by classifying plaintiffs as independent contractors Bimbo Bakeries no doubt avoided substantial employer tax (and perhaps insurance) obligations. That's typically how business relationships work - each side receives some benefit.

Id. at *1. The court concluded that “[u]njust enrichment’ is

simply a poor fit to the facts alleged.” Id. at *2.

As in Bimbo Bakeries, defendants’ counterclaim here is,

essentially, a claim for offsets. And, as in Bimbo Bakeries,

“[i[f it is determined that plaintiffs were employees of

[Goodwin Recruiting], and not independent contractors, their

final recovery (if any) will take into account compensation they

actually received from [Goodwin Recruiting] for their labor, as

well as sums they should have received had they been properly

treated as employees.” Bimbo Bakeries, id. at *2. Plaintiffs’

“recovery (if any) will likely amount to the difference between

the two, and obviously not the total of the two.” Id. Indeed,

defendants have asserted “set off” as an affirmative defense.

But, that there will likely be various offsets when calculating

the total damages to which plaintiffs are entitled (should they

19 ultimately prevail) does not compel the conclusion that

[defendants] have stated a viable common law claim for “unjust

enrichment.” Id. at *3. Defendants argument to the contrary

are not persuasive.

Accordingly, plaintiffs’ motion to dismiss defendants’

unjust enrichment counterclaim is granted.

3. Negligent Interference with Contract

Defendants have asserted a claim for negligent interference

with contract, a tort which New Hampshire does not recognize.

See Ferrero v. Coutts,

(1991) (citing Blue

Cross/Blue Shield of N.H.-Vt. v. St. Cyr,

,

(1983)). Defendants concede that New Hampshire

does not recognize the cause of action but urges the court to

create the claim. The court declines that invitation. As the

Court of Appeals for the First Circuit has stated:

Federal courts are not free to extend the reach of state law. See Erie R. Co. v. Tompkins,

(1938) (federal courts must apply state law as “declared by its Legislature in a statute or by its highest court in a decision”); Braga v. Genlyte Grp., Inc.,

(1st Cir. 2005). When applying state law, “we will take care not to extend state law beyond its well-marked boundaries in an area ... that is quintessentially the province of state courts,” Markham v. Fay,

(1st Cir. 1996), and must exercise considerable caution when even considering the adoption of a new application, Doyle v. Hasbro, Inc.,

(1st Cir. 1996). A litigant who chooses federal court over state court “cannot expect this court ‘to ... blaze new and

20 unprecedented jurisprudential trails’” as to state law. A. Johnson & Co. v. Aetna Cas. & Sur. Co.,

, 73 n.10 (1st Cir. 1991) (quoting Kotler v. Am. Tobacco Co.,

(1st Cir. 1990)). Rather, this court “must take state law as it finds it: ‘not as it might conceivably be, some day; nor even as it should be.’” Kassel v. Gannett Co.,

(1st Cir. 1989) (quoting Plummer v. Abbott Labs.,

(D.R.I. 1983)).

Doe v. Trustees of Bos. Coll.,

(1st Cir.

2019).

Plaintiffs’ motion to dismiss defendants’ counterclaim for

negligent inference with contract is granted.

4. Violation of New Hampshire’s Consumer Protection Act

New Hampshire's Consumer Protection Act,

-A:2, prohibits the use of “any unfair method of

competition or any unfair or deceptive act or practice in the

conduct of any trade or commerce within this state.” The Act

lists several “actions that fall within its prohibition, but

that is not an exhaustive list of prohibited methods, acts, or

practices.” Moulton v. Bane, No. 14-CV-265-JD,

,

at *11 (D.N.H. Mar. 21, 2016) (citing ACAS Acquisitions

(Precitech) Inc. v. Hobert,

(2007)). “If the

challenged conduct is not listed in RSA 358-A:2, to be

actionable it ‘must attain a level of rascality that would raise

an eyebrow of someone inured to the rough and tumble of the

21 world of commerce.’” Moulton,

, at *11 (quoting

Axenics, Inc. v. Turner Constr. Co.,

(2013)).

Defendants allege that plaintiffs have violated New

Hampshire’s Consumer Protection Act by “converting, disclosing

and utilizing Goodwin Recruiting’s confidential information,

improperly targeting Goodwin Recruiting’s clients and potential

clients, and improperly interfering with Goodwin Recruiting’s

business relationships.” Counterclaim ¶ 136. Defendants

further allege that these “unfair methods of competition have

occurred in New Hampshire and were done willfully and

knowingly.” Id. at ¶ 137.

Plaintiffs contend that defendants’ CPA claim should be

dismissed for several reasons. First, plaintiffs say,

defendants’ CPA claim rests on the same allegations as their

claim for misappropriation of trade secrets, and it is therefore

preempted. Plaintiffs are largely correct. See PC Connection,

Inc. v. Price, No. 15-CV-208-PB,

, at *6 (D.N.H.

Oct. 29, 2015) (New Hampshire’s Uniform Trade Secrets Act

“displaces conflicting tort, restitutionary, and other law of

this state providing civil remedies for misappropriation of a

trade secret.” The NHUTSA actually sweeps more broadly than

trade secrets,” and also “preempts claims that are based upon

the unauthorized use of information, regardless of whether that

information meets the statutory definition of a trade secret.”)

22 (quoting N.H. Rev. Stat. Ann. § 350–B:7) (further quotations

omitted).

To the extent defendants’ allegations are not preempted,

the claims that remain – disparagement of Goodwin Recruiting to

other independent contractors, and improperly soliciting

Arooga’s – fall far short of meeting the requisite “rascality

standard.” See Hair Excitement, Inc. v. L'Oreal U.S.A., Inc.,

(2009) (“selfish bargaining and business

dealings will not be enough to justify a claim for damages”

under the Consumer Protection Act) (quoting Barrows v. Boles,

(1996)). See also Romano v. Site

Acquisitions, Inc., No. 15-CV-384-AJ,

, at *3

(D.N.H. Jan. 4, 2016) (“Although the plaintiffs' allegations are

serious, ‘misrepresentations ... [and] broken promises alone do

not rise to the level of rascality where successful [CPA] claims

dwell.’”) (quoting Franchi v. New Hampton Sch.,

(D.N.H. 2009)).

Accordingly, plaintiffs’ motion to dismiss defendants’ CPA

counterclaim is granted.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for sanctions

(document no. 24) is DENIED without prejudice. Plaintiffs’

23 motion to dismiss defendants’ counterclaims (document no. 12) is

GRANTED in part, and DENIED in part, as set forth herein.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

August 25, 2021

cc: Counsel of Record

24