Beane v. Beane

2012 DNH 049

• Court: District Court, D. New Hampshire
• Decided: March 1, 2012
• Docket: CV-08-236-JL
• Status: Published

Opinion

Beane v . Beane CV-08-236-JL 3/1/12 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Glenn L . Beane

v. Civil N o . 08-cv-236-JL Opinion N o . 2012 DNH 049 Alan F. Beane and Mii Technologies, L.L.C.

OPINION AND ORDER

If this battle between brothers over their failed business

does not quite reach Biblical proportions, c f . Genesis 4:1-16

(Cain and Abel), mythical proportions, c f . Plutarch, Plutarch

Lives, I , Theseus and Romulus, Lycurgus and Nurma, Solon and

Pulicola (1914) (Romulus and Remus), or even modern pulp literary

proportions, c f . Mario Puzo, The Godfather (1969) (Michael and

Fredo Corleone, also popularized on film), it easily equals the

great “brother versus brother” storylines of professional

wrestling,1 at least in its bombast. Following the collapse of

the business, Mii Technologies, L.L.C., the brothers, Glenn L .

and Alan F. Beane (with Alan acting on behalf of either himself

or Mii) have squared off in at least eight separate proceedings

in at least three different courts. See Beane v . Mii Techs.,

LLC, N o . 10-307 (D.N.H. June 4 , 2010); Beane v . Beane, N o . 06-446

1 These would include, at a minimum, Rick Steiner v s . Scott Steiner, Bret Hart v s . Owen Hart, The Undertaker v s . Kane, and Matt Hardy v s . Jeff Hardy. (D.N.H. Nov. 3 0 , 2006); Beane v . Beane (In re Beane), N o . 09-269

(Bankr. M.D. Fla. May 4 , 2009); Lawson & Persson, P.C. v . Beane,

N o . 09-E-113 (N.H. Super. June 1 5 , 2009); Beane v . Mii Techs.,

LLC, N o . 08-157 (N.H. Super. Nov. 1 0 , 2008); Beane v . Beane, N o .

08-E-270 (N.H. Super. Oct. 2 0 , 2008); Beane v . Mii Techs., LLC,

N o . 08-C-79 (N.H. Super. June 1 0 , 2008).

This particular action was commenced by Glenn, but, as

explained infra, Alan has since consented to the entry of

judgment on one of Glenn’s claims--seeking a declaration that

Glenn’s membership in Mii ceased as of February 4 , 2004--and the

rest (with one minor exception) have been dismissed, either by

Glenn or the court. See Order of March 2 2 , 2010 (document n o .

70). Alan, however, responded to Glenn’s complaint in this

action with a counterclaim in 14 counts, which has since grown to

21 counts as the result of several separate amendments. Alan has

also joined Mii as a party to the counterclaim, as ordered by the

court. See id.2

2 Though the court initially ordered Alan to join Mii in March 2010, he did not immediately do s o , leading Glenn to file a motion for Mii’s involuntary joinder. The court eventually denied that motion as moot when it ordered Alan--on pain of dismissal of the counterclaim--either to join Mii, as had been previously ordered, or to file a memorandum explaining which counts of the counterclaim belonged to him, rather than to Mii. Beane v Beane, 2011 DNH 0 1 2 , at 2 7 . In response, Alan promptly joined Mii as a plaintiff-in-counterclaim. Nevertheless, Glenn then moved to dismiss, arguing that Alan had failed to file the

2 The gist of the counterclaim is that Glenn caused Mii to

fail through a variety of wrongful conduct, viz., mismanaging,

its relationship with a key customer, Lovejoy, Inc., and then,

after withdrawing from Mii, misappropriating that relationship as

well as Mii’s intellectual property. This court has supplemental

jurisdiction over the counterclaim, see 28 U.S.C. § 1367(a), by

virtue of its federal-question jurisdiction over Glenn’s ERISA

claim, see id. § 1331, and has elected to exercise that

jurisdiction even after the federal claim was dismissed, based on

the parties’ expressed preference for this forum, see Order of

March 2 2 , 2010 (document n o . 7 0 ) . Glenn has now moved for

summary judgment, see Fed. R. Civ. P. 5 6 , on all counts of Alan’s

counterclaim.

Glenn argues, among other things, that (1) he did not agree

to assign his intellectual property rights to either Alan or Mii,

(2) there is no evidence Mii owned any protectible trade secrets,

(3) Glenn had no duties to Mii (or Alan), at least after

withdrawing from Mii in February 2004, (4) though Glenn did

business with Lovejoy after his withdrawal from Mii, that did not

required memorandum. This argument ignores the disjunctive nature of the court’s order to Alan: he was to file the memorandum or join Mii as a counterclaimant. In any event, Glenn’s motion to dismiss the counterclaim is moot in light of this court’s entry of summary judgment in his favor.

3 amount to tortious interference with its relationship with

Lovejoy, and (5) even if his withdrawal from Mii breached the

limited liability company agreement, it did not cause any harm.

As fully explained infra, the court agrees with Glenn that

he is entitled to summary judgment. Although this case had been

pending for nearly three years before Alan filed his opposition

to Glenn’s motion for summary judgment (not counting the time the

case was stayed), Alan has not developed any evidence to support

several propositions that are essential to his counterclaim.

First, there is no evidence of any agreement by Glenn to assign

his interest in any intellectual property to Mii or Alan, only to

another entity that is not a party to this case. Second, Alan

has not properly identified, let alone come forward with evidence

tending to show, any trade secret allegedly misappropriated by

Glenn. Third, Glenn’s duties to Mii (or Alan) by virtue of his

management of or membership in Mii were limited to refraining

from gross negligence or willful misconduct, and Alan has not

come forward with evidence from which a rational factfinder could

conclude that Glenn’s actions amounted to either. Fourth, Alan

has not provided anything to dispute Glenn’s submissions

establishing that, after he withdrew from Mii, he had no contact

with Lovejoy until after Mii had abandoned their relationship,

with the result that Glenn’s contacts with Lovejoy are not

4 actionable. Fifth, Alan has no evidence that Glenn’s withdrawal

from Mii, as such, caused any damages to the company or Alan.

As explained more fully below, the court grants Glenn’s

motion for summary judgment on the counterclaim, abstains from

exercising jurisdiction over Glenn’s remaining claim against

Alan, and ends this episode of the parties’ family feud.

I. Standard of review

Summary judgment is appropriate where “the movant 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 dispute is “genuine” if it could reasonably be

resolved in either party’s favor at trial. See Estrada v . Rhode

Island, 594 F.3d 5 6 , 62 (1st Cir. 2010). A fact is “material” if

it could sway the outcome under applicable law. Id.

Where, as here, “the moving party avers an absence of

evidence to support the non-moving party’s case, the non-moving

party must offer definite, competent evidence to rebut the

motion.” Meuser v . Fed. Express Corp., 564 F.3d 5 0 7 , 515 (1st

Cir. 2009). In other words, the non-moving party “must proffer

admissible evidence that could be accepted by a rational trier of

fact as sufficient to establish the necessary proposition.”

Gomez-Gonzalez v . Rural Opportunities, Inc., 626 F.3d 6 5 4 , 662

5 n.3 (1st Cir. 2010). This means that “conclusory allegations,

improbable inferences, or unsupported speculation” will not

suffice to defeat a properly supported summary judgment motion.

Meuser, 564 F.3d at 515 (quotation omitted). In analyzing a

summary judgment motion, the court must “view[] all facts and

draw[] all reasonable inferences in the light most favorable to

the non-moving party.” Id. The following facts are set forth in

accordance with this standard.

II. Background

A. Factual background

1. Mii’s formation

Alan and Glenn formed Mii, a limited liability company, in

1995. They had “equal membership interests,” at least until

February 2004. The most recent version of the limited liability

company agreement, dated September 1997, reposited the right to

manage the business of the company in the members, but allowed

them to turn that right over to managers elected by the members.

The parties agree that, at some point, Alan and Glenn became

Mii’s managers, that Alan has continued to serve in that capacity

ever since, and that Glenn continued to serve in that capacity

until his resignation in February 2004.

6 The membership agreement does not restrict a manager’s

ability to resign from that role (and specifically provides a

procedure for replacing a manager who “ceases to be a Manager

before his term expires for any reason”). The agreement does

provide, however, that “[n]o member has power to withdraw by

voluntary act from the Limited Liability Company.”

As stated in the agreement, Mii’s purpose was “to engage in

the business of marketing and/or manufacturing of sensor

materials, metallic powders and related parts.” Alan recalls

that he and Glenn wanted, specifically, to finish the work on

“composite materials and net shape pressing technologies” they

had begun at another company they had started, Materials

Innovation, Inc., formed in 1989. By 2002, however, Materials

“owed significant amounts of money to a number of creditors,” s o ,

Alan says, “it was decided that Materials would cease to operate

as a going concern and that all of the resources of [Alan and

Glenn] would be focused on” Mii.

Alan recalls that Glenn contributed “his creative talents

and interests” to the Materials and Mii ventures, while Alan

contributed some $23 million in capital. Thus, Alan explains,

Glenn received “co-equal” interests with Alan in those businesses

“without the necessity of having to come up with any cash

equity.” Neither Glenn nor Alan, though, ever served as an

7 employee of Mii; Glenn recalls that this arrangement was “by

design.” Glenn never entered into any employment contract with

Mii, including the “Invention, Non-Disclosure, and

Confidentiality Agreement” that Mii made its employees sign.

2. Glenn’s and Alan’s agreements with Materials

In August 1996, Glenn and Alan entered into an agreement

assigning certain intellectual property to Materials. In

relevant part, this agreement provided that “the Inventors”--a

term defined as Alan and Glenn “collectively”--“hereby assign,

grant and convey to [Materials] their entire right, title and

interest in and to U.S. Patent N o . 5,453,293, together with . . .

any patent applications or patents claiming improvement in or

modification of the subject matter set forth in the Patent

developed by either or both of the Inventors.” Alan and Glenn

were listed as the inventors of the ‘293 patent, which issued in

September 1995.

The assignment agreement further provided that “[e]ach

modification and improvement related to Composite and Engineered

Materials”--a defined term--“covered by the patent now or

hereafter conceived, made or developed by Inventors, or which

shall become the property of Inventors in any manner whatsoever,

shall be deemed to be included in the terms of this Agreement.”

8 But Mii was not a party to the assignment agreement. Instead,

Mii had agreements to license various patents and patent

applications and other intellectual property (though not the ‘293

patent) from Materials.

In April 2001, Alan loaned Mii $1.5 million, receiving in

return a promissory note with a one-year term. He loaned

$600,000 to Materials at the same time. To provide collateral

for these loans, Mii (and Materials) subsequently provided Alan

(and his wife, Sara Beane) with a commercial security agreement,

dated January 1 8 , 2002, granting them a security interest i n ,

among other things, “letters of patent, patent applications, and

other rights to intellectual property in which [Mii and

Materials] have ownership interests.” The agreement entitled the

lender to take possession of the collateral upon Mii’s default.

Within two weeks of the execution of the security agreement, Mii

had defaulted on the note it had given Alan.

3. Beginning of Mii’s relationship with Lovejoy

In July 2002, Mii entered into a contract to sell a 1,000-

ton metal press to Lovejoy, an Illinois-based manufacturer of

metal parts. In negotiating the contract, Lovejoy dealt with

both Glenn and Alan, who acknowledges that he participated “in

the portion of the negotiations related to the overall design of

9 the press.” Lovejoy was the last customer to commit to buying a

press from Mii before it eventually ceased operations.

Alan recounts that in fall 2003, one of Lovejoy’s customers

demanded more precise tolerances on its parts, so that “Mii felt

the original approach of the system configuration,” which already

featured a “modified volumetric feed shoe,” was not “adequate to

the task.” According to Alan, “Mii realized” that it had another

“higher technology” which “might be” modified “to meet the

specification[s],” but that approach was not without its

challenges. Alan alleges that “Mii’s email files show many

conversations between Glenn” and Lovejoy about “the perceived

necessity to upgrade the capabilities of the system,” though

Glenn did not make Alan or anyone else at Mii aware of these

“negotiations” until 2004. While Alan says that “Lovejoy claims

they walked away from these discussions believing that Glenn had

committed Mii to accomplish an upgrade capable of meeting the

[new] specifications,” Alan also insists that “[t]here is no

paperwork or documentation available to Mii that would

substantiate such a contractual commitment.”

Alan also accuses Glenn of mismanaging the Lovejoy project

in other ways during his time at Mii. First, Alan recalls that,

given the technological demands of building the press even to

Lovejoy’s original specifications, Glenn agreed “to institute a

10 detail design engineering relationship with a major Massachusetts

mechanical engineering firm.” Nevertheless, Alan says, Glenn

ultimately “circumvented” this arrangement “by essentially

engaging [the firm’s] assistance in mechanical drafting as

opposed to engineering oversight.”

Second, Alan accuses Glenn of a design error in “the

clearances between the outer walls of the inner cylinder

components and the inner walls of the outer cylinder components,”

so that “thermal expansion” caused them to touch, resulting in

“catastrophic press failure.” Alan says that “cylinder design

errors” necessitated a lengthy re-design and re-machining process

that contributed to a “10-12 week” delay in delivering the press

to Lovejoy. Alan acknowledges, however, that another cause of

the delay was an error by a third party who “improperly

specified/designed the hydraulic fluid cooling system,” and does

not attempt to lay that error at Glenn’s feet. In any event,

Alan recalls that the “total cost of the delay and rebuild was

$600,000.” That figure, Alan explains, does not include a delay

in Lovejoy’s making both progress payments--which “destroy[ed]

Mii’s operational cash flows and ability to pay vendors”--and

“follow on orders”--which Lovejoy had “ostensibly” committed to

make “concurrently” with the delivery of the press.

11 By November 2003, Mii had delivered the press to Lovejoy,

but the press was missing a “required fluidization component”

that was still being manufactured. It appears, though the record

is unclear, that this component was the one Glenn allegedly

caused Lovejoy to believe that Mii would deliver (even though,

Alan says, this component was not included in the original

specifications). Lovejoy’s principals, Michael Hennessy and

Woody Haddix, attest that, through January 2004, Alan, Glenn, and

others from Mii were working on the component, but without

success, so that during that time the press did not “perform at

the contractually-agreed upon levels and tolerances.”3

4. Mii’s efforts at further financing

Beginning around January 2004, Alan and Glenn (together with

their brother, David, who had worked for Mii as a consultant, and

Sara, Alan’s wife) engaged in a series of negotiations, Alan

3 In the statement of facts in his objection to the summary judgment motion, Alan does not dispute this testimony. He says in one of his declarations, however, that “the system fully met the contract specifications consistent with [ ] Hennessy’s report to David Beane” (another brother of Alan and Glenn who was working for Mii as a consultant). But Alan has not provided this report to the court (though he seems to have intended to do s o ) . In any event, for the reasons that will appear infra at Part III.C.2, whether or not the version of the press that Mii delivered to Lovejoy in November 2003 met the specifications in the contract is ultimately immaterial to the success of any of Alan’s claims against Glenn here.

12 says, “to restructure Alan[’s] and Sara’s respective rights in

the Mii companies and to get [Alan’s] personal guaranty and

[Mii’s] approval” of a $500,000 loan to Mii from an outside

lender, Fleet Bank. Around the same time, Alan and Sara were

working to resolve “property division issues relating to [her]

suit for divorce.”

At one point, Alan offered (among other things) to guarantee

the loan personally in exchange for (among other things) Glenn’s

“assurance that all intellectual assets that have been or will be

created by Glenn . . . and relate to [Mii’s] business have been

or will be assigned to Mii [ ] without additional consideration as

has been consistent with prior practice.” Alan suggests that

this assurance was necessary for him to provide certain

representations (presumably as to Mii’s right to the intellectual

property it was using) that Fleet required to make the loan.

Alan recalls that “[b]ottom line, Glenn absolutely refused”

to provide the assurance, so that Alan “decided he could not sign

the Fleet [loan] documents” making the representations. Alan,

“[w]ith the benefit of hindsight,” has come to see this as an

effort by Glenn to induce Alan to “violat[e] Federal Banking Law

and be subject to both criminal and civil sanctions.” In any

event, Mii did not get the loan from Fleet--nor did Alan and

Glenn reach agreement as to restructuring or refinancing Mii.

13 5. Glenn’s departure from Mii

On February 3 , 2004, Alan notified Glenn via letter that

Alan and Sara were “exercising [their] rights under [the]

Commercial Security Agreement to sell, lease, transfer or

otherwise deal with Collateral in accordance with the terms of

[the] Agreement.” In the days before delivering this letter,

Alan initiated discussions, and then a formal meeting, with Mii’s

employees about “trying to make it on the fly on our own without

Glenn” because, Alan later explained, “at that point [he] had

reason to believe Glenn may have ‘walked away.’” The consensus,

apparently, was “to see what we could do to make the business

viable by working together” without Glenn.

On February 4 , 2004--the day after Alan’s letter announcing

his exercise of dominion over Mii’s assets--Glenn gave Alan

letters announcing that, effective immediately, Glenn was

“resign[ing] from his position(s) and duties as an Officer[] and

as a member of the Board of Directors of Materials . . . and

Mii.” After dropping a company vehicle and customer files at

Mii’s facility within the next few days, Glenn had no further

contact with the company until the onset of the various legal

proceedings enumerated supra.

14 6. End of Mii’s relationship with Lovejoy

One of Lovejoy’s principals, Haddix, says that, after

repeated attempts to call Glenn at Mii’s facility in early

February 2004, he was told by a Mii employee that Glenn was no

longer with the company. Another of Lovejoy’s principals,

Hennessy, says that he eventually reached Alan, “who advised

[Hennessy] that Glenn had left the company in all capacities and

that Alan was going to continue operating Mii with its existing

workforce and without Glenn.”4 Glenn, for his part, says that

upon his resignation from Mii he “ceased all contact with Lovejoy

and did not even inform [it] that I had left.”

Haddix and Hennessy recall that, over the next several

weeks, they repeatedly expressed “concern that Glenn’s departure

would make it very difficult, if not impossible, for Mii to

complete installation of the fluidization function” of the press,

but Alan responded that “Mii had the experience and wherewithal

to continue its business.” Haddix recalls a similar conversation

4 Alan says that Haddix’s account of his attempts to reach Glenn “cannot be true” but does not explain why o r , for that matter, how he would have personal knowledge of that subject. Alan also claims that Hennessy’s recollection that Alan said Glenn had left the company in all capacities “is not correct either.” Instead, Alan suggests that he said “it appeared Glenn had left the company with no present intent to return” but that Alan hoped “cool heads would prevail.” This dispute (if in fact it is one) is ultimately immaterial to the outcome of the motion

15 at a subsequent meeting at Mii’s facility, where “Alan insisted

that Mii would be fine without Glenn and that the employees on

board at the time were well versed in the capability and

installation of the fluidization portion” of the press.

Alan does not dispute Lovejoy’s account of this meeting, but

he does suggest, as already mentioned, that Mii never agreed to

provide a functioning fluidization system in the first place.

Alan recalls that it was not until he spoke with Hennessy on or

around February 1 0 , 2004, that Alan “found out, to [his] complete

surprise, that Mii had a very angry primary customer.” In fact,

Alan says, aside from a “concept sketch” of the fluidization

system, “no work was undertaken on Mii’s part presumably because

Mii believed the project was a time and materials addition to the

contract and such had not been authorized by Lovejoy.”

Nevertheless, Alan says, Mii “intended for Lovejoy to be a

satisfied customer,” and agreed to work on the fluidization

component of the press.

By March or April 2004, Mii employees had installed the

fluidization component of the press at Lovejoy’s facility, but,

after working on i t , “admitted that they were at wit’s end and

that they were not going to able to make the fluidization system

function properly according to the specifications of the press.”

Alan later gave Haddix and Hennessy the same message. Shortly

16 thereafter, personnel at Mii--including Alan--stopped returning

phone calls and emails from Haddix and Hennessy. So they

“assumed that Mii had closed its doors” and “considered the

contract terminated by Alan’s actions, and particularly, by his

admission that Mii could not make the press work, was not going

to continue trying, and lacked funding to do so.” Alan has not

come forward with any evidence disputing Lovejoy’s account of

Mii’s admissions of defeat or its failure to return Lovejoy’s

calls or emails beginning in the spring of 2004. 5 Nor does Alan

dispute the testimony of Haddix and Hennessy that “[i]t was not

until after Mii and Alan had failed to meet their obligations

that [Lovejoy] contacted Glenn and asked him to help.”

5 In the statement of disputed facts in his summary judgment objection, Alan purports to dispute the account insofar as it “implies that Mii could not resolve [the] Lovejoy problems,” but does not point to any evidence supporting the contrary inference. Alan does state in one of his declarations that “Mii and its staff solved the problem in 6-8 weeks” after Glenn had left, and that, at the time Lovejoy terminated the contract, “Mii had delivered both a major software upgrade as well as equipment upgrade that likely established a baseline solution when implemented and tested.” But that is not the same as saying that the fluidization system actually worked and, moreover, Alan does not deny, in either of his declarations, that he told Lovejoy that “Mii was not going to be able to make the fluidization system function properly.” S o , again, even if there were some genuine factual dispute over whether Mii performed its contract with Lovejoy, that dispute would be immaterial to the outcome here. See also note 3 , supra.

17 7. Glenn’s alleged competition with Mii

Alan alleges that, by November 2004, Glenn “was pursuing

active negotiations with Lovejoy for the immediate fabrication of

two additional 1000-ton systems identical to that delivered to

Lovejoy by Mii, and for a new 300-ton system.” Alan also alleges

that, in March 2004, Glenn--acting on behalf of a new limited

liability company he had formed, Glenn Beane LLC--contacted

several other of Mii’s customers, or potential customers.

Glenn, for his part, says that he did not form Glenn Beane,

LLC, or “even explore or consider the process of forming it,”

until after he had resigned from Mii (documents on file with the

New Hampshire Secretary of State give the company’s “entity

creation date” as February 1 0 , 2004, i.e., a week or so after

Glenn’s resignation). Alan has not come forward with any

evidence tending to show that--at any time before Glenn resigned

from Mii--Glenn formed, or made plans to form, Glenn Beane LLC,

or that he had any contact with any of Mii’s customers or

potential customers on behalf of himself or Glenn Beane LLC.

On December 1 5 , 2004, acting as attorney-in-fact for

Materials, Glenn executed a document assigning a number of

patents, including the ‘293 patent, from Materials to Alan and

Glenn, then recorded that document with the United States Patent

and Trademark Office. This “re-assignment” invoked a provision

18 of the assignment agreement that, “[u]pon [its] termination for

any cause, [Materials] agrees to immediately reassign to the

Inventors all patent rights assigned” thereunder, together with

“any and all right to any improvements or modifications which

[Materials] shall have made during the life of this Agreement

which relate to Composite and Engineering Materials” (a defined

term). The provision further gave “the Inventors power of

attorney to execute and file assignments with the [USPTO] . . .

to change record title.” Glenn points out that the assignment

agreement gave “either Inventor . . . the right to terminate [it]

effective immediately upon written notice to [Materials] in the

event that” Materials was dissolved, including by an

administrative or judicial order remaining in effect for 45 days.

In November 2003, Materials had been administratively

dissolved by order of the New Hampshire Secretary of State, and

nothing was (or has been) done to lift that order. See N.H. Rev.

Stat. Ann. §§ 293-A:14.20--14.22. Mii has likewise been

administratively dissolved, see id. § 304-C:52, by an order of

the Secretary of State issued in August 2007, but, Alan says, “is

engaged in the process of winding up its affairs,” see id.

§§ 304-C:52, I I , 304-C:56.

19 B. Litigation history

1. Prior action in this court

In October 2006, Alan filed for bankruptcy in the United

States Bankruptcy Court for the Middle District of Florida. In

re Beane, N o . 06-5723 (M.D. Fla. Oct. 1 9 , 2006). Alan soon

sought, and received, permission from the Bankruptcy Court to

employ counsel to conduct litigation against Glenn. In November

2006, Alan and Mii commenced an action against Glenn and Glenn

Beane LLC in this court, bringing many of the same claims that

Alan later brought as a counterclaimant in this action. Beane v .

Beane, N o . 06-446 (D.N.H. Nov. 3 0 , 2006). Glenn counterclaimed,

bringing essentially the same claims he later brought as a

plaintiff in this action.6

After furious motion practice--which included Glenn’s filing

five separate motions to dismiss, and the Magistrate Judge’s

imposing monetary sanctions against both Alan and Glenn at

different points--the court (McAuliffe, C.J.) ordered Alan and

Mii to show cause why it should not dismiss their sole claim

under federal law and decline to exercise supplemental

jurisdiction over the rest of the case. In response, Alan

argued, among other things, that diversity jurisdiction existed,

6 Glenn later filed a proof of claim in Alan’s bankruptcy action, also making essentially the same claims.

20 because Mii was a nominal party whose citizenship should not be

counted. But Judge McAuliffe disagreed, ruling that “[t]he

rights upon which plaintiffs base their claims are Mii’s rights,

and the remedies sought would directly benefit Mii” and,

furthermore, that Mii was an indispensible party under Rule

19(b). Beane v . Beane, 2008 DNH 0 8 2 , 15-20. The court also

ruled that the amended complaint failed to state any claim under

federal law. Id. at 8-12. So the court dismissed the action for

lack of subject-matter jurisdiction, id. at 2 1 , entering judgment

to that effect on April 3 0 , 2008.

2. This action

a. Claims and counterclaims

On June 1 1 , 2008, Glenn brought this action against Alan.

Around the same time, Glenn also commenced an action, consisting

of many of the same claims, against Mii and other parties in

Grafton County Superior Court. Beane v . Mii Techs., LLC, N o .

2008-C-079 (N.H. Super. C t . June 1 0 , 2008). Glenn’s amended

complaint in this action is in five counts:

• equitable relief under the Employee Retirement Income Security Act (“ERISA”), specifically, 29 U.S.C. § 1132(a)(3)(B)(ii), to enforce certain administrative obligations under an employee benefit plan created by Mii and Materials (count 1 ) ;

21 • a declaratory judgment that Glenn’s membership in Mii ceased as of February 4 , 2004, and other declarations as to Mii’s status after that date (count 2 ) ;

• as an alternative to count 2 , the judicial dissolution of Mii (count 3 ) ;

• also as an alternative to count 2 , an accounting from Mii (count 4 ) ; and

• voiding an allegedly fraudulent transfer from Mii to Alan (count 5 ) .

Alan originally moved to dismiss this action, based on the

pendency of similar litigation in other courts, but withdrew the

motion around the same time that he filed an answer and a

counterclaim against Glenn.

Alan subsequently amended his counterclaim three times, the

first as of right and the next two times with leave of court.

The counterclaim, as amended, is in 21 separate counts:

• breach of contract in that Glenn refused to transfer to Mii “all of his intellectual property pertaining to the presses” (count 1 ) ;

• breach of implied covenants of good faith and fair dealing by Glenn’s “using [that] intellectual property for his own benefit” (count 2 ) ;

• breach of “fiduciary duties” that Glenn owed Alan through “actions that resulted in disputes between Mii and Lovejoy” (count 3 ) ;

• breach of a “fiduciary duty of loyalty,” i.e., “a series of fiduciary or quasi-fiduciary duties” that Glenn owed Alan, by “expropriat[ing] the business opportunities of Mii,” including the Lovejoy relationship (count 4 ) ;

22 • breach of a “fiduciary duty of care, diligence, full disclosure and advice” that Glenn owed Alan, by mismanaging Mii’s relationship with Lovejoy (count 5 ) ;

• breach of a “confidential relationship” by using the “confidential information of Mii to misappropriate the business of Mii” (count 6 ) ;

• through that same conduct, misappropriation of trade secrets (count 7 ) ;

• tortious interference with contractual relations, i.e., Mii’s relationship with Lovejoy (count 8 ) ;

• tortious interference with prospective contractual relations, i.e., Mii’s relationships with other prospective customers (count 9 ) ;

• a claim for “ownership of intellectual property rights,” asserting that “[a]ll inventions conceived of by Glenn [ ] are subject to an obligation to assign such rights to Mii,” and requesting equitable and declaratory relief as well as damages (count 1 0 ) ;

• unjust enrichment, in that Glenn “wrongfully misappropriated the press technology” (count 1 1 ) ;

• violations of the New Hampshire Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A, through, among other things, Glenn’s “representation that he is the source of the press technology and that he owns the [underlying] intellectual property,” which amounts to “a false designation of origin” (count 1 2 ) ;

• a second claim for interference with prospective contractual relations, this one based on Alan’s relationship with unidentified “buyers,” by “forcing Mii out of business” and then claiming to own the intellectual property (count 1 3 ) ;

• “conspiracy, [and] aiding and abetting,” in that Glenn conspired with Glenn Beane LLC “to take the intellectual property developed, commercialized and patented by Mii” (count 1 4 ) ;

23 • “wrongful dissociation,” in that Glenn withdrew from Mii in violation of the prohibition on voluntary withdrawal in the limited liability company agreement (count 1 5 ) ;

• “constructive trust and specific performance,” seeking to impose a constructive trust on intellectual property “developed, improved or enhanced” since Glenn’s dissociation from Mii, and to direct Glenn to transfer intellectual property to Mii (count 1 6 ) ;

• a claim for specific performance of Glenn’s alleged agreement with third parties to sign and file “ERISA Reports”--which Alan now agrees is moot now that, he says, Glenn has done those things (count 1 7 ) ;

• another claim for Glenn’s violation of § 358-A, this time by bringing the ERISA claim against Alan in this lawsuit (count 1 8 ) ;

• a “statutory claim for attorneys’ fees, costs, and expenses” incurred by Alan in responding to the ERISA claim (count 1 9 ) ;

• a common-law claim for the same (count 2 0 ) ; and

• a claim for a declaratory judgment--which Alan agrees is now moot as a result of this court’s ruling on Glenn’s motion to substitute, see Beane v . Beane, 2011 DNH 12 (count 2 1 ) .

While Glenn objected to Alan’s second proposed amendment

(and was overruled), he did not object to the third proposed

amendment, which added counts 17-21. So this court ruled that,

“although some of [those] claims . . . appear to be legally

improper or baseless,” the amendment would be allowed because

“Glenn has not bothered to object.” Order of Aug. 3 , 2009

(document n o . 5 9 ) .

24 b. The stay and its lifting

In that same order, the court also denied the parties’

pending cross-motions for partial summary judgment, and stayed

the case, in light of the litigation Glenn had filed against Mii

in the Superior Court, which had already conducted a bench trial

on his claims (essentially the same claims as here). See id.

Eventually, the Superior Court found in favor of Mii on all of

Glenn’s claims in that action. See Beane v . Mii Techs., LLC, N o .

2008-079 (N.H. Super. C t . July 9, 2009). 7 Alan then moved to

lift the stay of this action to allow him to move for partial

summary judgment, including on Glenn’s ERISA claim, while Glenn

moved for voluntary dismissal of that claim, arguing that he had

obtained the “principal relief” he sought through other means.

Alan objected that the dismissal of the ERISA claim would deprive

this court of subject-matter jurisdiction.

In response, this court ordered a status conference at which

the parties were to address, among other issues, whether this

court had diversity jurisdiction over Glenn’s remaining claims.

Order of Mar. 5 , 2010 (document n o . 6 9 ) . The court observed

7 Glenn appealed this order--but only insofar as it dismissed his fraudulent transfer claim with prejudice, arguing that it should have been dismissed without prejudice when he moved for a voluntary non-suit on i t . The New Hampshire Supreme Court agreed in an unpublished order vacating the dismissal with prejudice. Beane v . Mii Techs., LLC, N o . 2009-562 (N.H. 2011).

25 that, if Mii were an indispensible party-defendant to Glenn’s

claim for a declaration that his membership in it had ceased as

of February 2004, that might destroy diversity, given Alan’s

position that Glenn--a New Hampshire citizen--still remained a

member (because, under the rule that a limited liability company

has the citizenship of each of its members, this would put a New

Hampshire citizen on both sides of the case). Id. at 2-4.

At the ensuing conference, however, Alan, through counsel,

offered to admit that Glenn’s membership in Mii did indeed cease

as of February 4 , 2004, as Glenn alleged in support of count 2 of

his amended complaint. This court proceeded to issue an order

entering judgment, by agreement, for Glenn on count 2 insofar as

it sought a declaration that his membership in Mii had ceased as

of that date.8 Order of Mar. 2 2 , 2010 (document n o . 70) at 4 .

The court ruled that, as a result, the balance of the relief

Glenn sought in count 2 , as well as in counts 3 and 4 , was moot,

and dismissed those claims accordingly. Id. at 4-5. The court

also dismissed Glenn’s ERISA claim, count 1 , “as moot in part and

otherwise unripe,” based on Glenn’s statements in his motion for

voluntary dismissal and at the conference. Id. at 3 .

8 Despite this clear ruling, Alan incorrectly states in several places in his filings in opposition to the summary judgment motion that “all of Glenn’s claims have been dismissed.”

26 Finally, the court ruled that while Mii was not an

indispensible party to count 2 of Glenn’s complaint, “most if not

all of the counterclaims asserted by Alan actually belong to Mii,

as this court has previously ruled.” Id. at 2-3 (citing Beane,

2008 DNH 0 8 2 , 14-16). So the court ordered that Mii be joined as

a plaintiff-in-counterclaim (which would not affect this court’s

subject-matter jurisdiction, since it could exercise supplemental

jurisdiction over the counterclaims without regard to Mii’s

citizenship). Id. Finally, the court lifted the stay, noting

that the Superior Court’s decision ended up having “limited, if

any” preclusive effect on the claims in this action. Id. at 1 .

Eventually, Glenn filed his instant motion for summary judgment.

III. Analysis

As summarized at the outset, Glenn makes a number of

arguments in support of his motion for summary judgment,

including that: (A) the ‘293 patent was never assigned to Mii,

only to Materials, which is not a party here, and there is no

evidence of any agreement between Glenn and either Mii or Alan

for the ownership of any intellectual property; (B) there is no

evidence of any protectible trade secrets belonging to Alan or

Mii; (C) there is no evidence that Glenn breached any of his

duties to Mii (or to Alan) before he resigned, and, insofar as

27 any such duty continued after he resigned, he did not violate it

in his dealings with Lovejoy, which did not start up again until

after Mii had abandoned the relationship; (D) even if Glenn’s

withdrawal from Mii breached the limited liability company

agreement, it did not cause any harm, and (E) Alan has no claim

arising out of Glenn’s seeking ERISA relief.9 As explained

below, these arguments are correct, and entitle Glenn to summary

judgment on all counts of Alan’s amended counterclaim.

A. Ownership of patents or other intellectual property

One of Alan’s principal complaints against Glenn is that he

has refused to transfer certain “Intellectual Property”--defined

in the amended counterclaim as “intellectual property pertaining

to the manufacture of presses employing high pressure, net shape

forming technology”--which rightfully belonged to Mii and, after

leaving Mii, used that intellectual property for his own benefit.

9 Glenn also argues that a number of Alan’s claims are barred by New Hampshire’s three-year statute of limitations, see N.H. Rev. Stat. Ann. § 508:4, I , because they arise out of events that occurred in 2004 (or earlier) and this action was not commenced until 2008. But Alan argues that, because he and Mii brought essentially the same claims in his prior action against Glenn in this court--which was itself timely--and that action was dismissed for lack of subject-matter jurisdiction less than one year before this one was commenced, his claims here are timely under New Hampshire’s “savings statute,” N.H. Rev. Stat. Ann. § 508:10. Because Glenn is entitled to summary judgment on other grounds, the court need not reach this argument.

28 This charge is essential to Alan’s claims for breach of contract

(count 1 ) and breach of the implied covenant of good faith and

fair dealing (count 2 ) , and, as explained infra, also important

to his claims for “ownership of intellectual property rights”

(count 1 0 ) , unjust enrichment (count 1 1 ) , conspiracy (count 1 4 ) ,

“constructive trust and specific performance” (count 1 6 ) , one of

his claims for violation of § 358-A (count 1 2 ) , and one of his

claims for tortious interference with prospective contractual

relations (count 1 3 ) . A problem with all of these claims, as

Glenn points out, is that there is no evidence that he agreed to

assign intellectual property to Mii or to Alan--only to

Materials, which is not a party here.

A further problem with these claims is that Alan was a co-

inventor of the ‘293 patent, which, according to him, was the

source of “[a]ll subsequent intellectual property” at issue here.

See Part II.A.2, supra. By virtue of his co-inventorship, Alan

became a co-owner of the patent, see, e.g., Ethicon, Inc. v . U.S.

Surgical Corp., 135 F.3d 1456, 1465 (Fed. Cir. 1998), and was

entitled to use that patent without Glenn’s consent o r , indeed,

without even accounting to him for any resulting profits. See 35

U.S.C. § 262. In light of this, it is difficult to understand

Alan’s repeated complaint that Glenn’s refusal to transfer the

‘293 patent and resulting technology to Mii was somehow

29 unreasonable or unfair in light of the substantial capital

investment that Alan says he made in developing that intellectual

property (some $23 million, by his count). Despite his

assertions to the contrary, Alan was never deprived of the

benefit of that investment: he was always free to do what he

wished with the ‘293 patent, such as selling it or licensing it

to Mii so that it could use it in its dealings with Lovejoy, as

collateral for the loan from Fleet, or for any other reason.10

The very premise of Alan’s numerous claims against Glenn

arising out of the ownership of the ‘293 patent and related

intellectual property, then, is mistaken. Indeed, Alan admits in

a footnote to his memorandum opposing summary judgment that “he

was obviously unaware that he was an [i]nventor of the

intellectual property,” presumably until Glenn brought it to his

attention in his summary judgment submissions here. It would

ordinarily border on shocking for a person to engage in knock-

down, drag-out litigation claiming deprivation of a right that he

possessed all along--and would have realized he possessed all

10 It is true that Alan had assigned his interest in the ‘293 patent to Materials in the assignment agreement, but--just like Glenn purported to do--Alan could have terminated that agreement after Materials was dissolved in 2003 (which was before Mii’s attempt to get the loan from Fleet, and before Glenn left) o r , even more simply, caused Materials (which Alan says he has always controlled) to release him from the agreement.

30 along, if only he had bothered to check. It is less shocking

here, however, because this is not so much a lawsuit to resolve

an honest dispute over rights as it is a grudge match. See note

1 and accompanying text, supra. In any event, as explained fully

infra, Glenn is entitled to summary judgment on all of Alan’s

claims arising out of ownership of intellectual property.

1. Contract claims based on ownership

a. No ownership agreement between Glenn and Mii

As an initial matter, there is no evidence of any contract

through which Glenn agreed to assign any intellectual property to

Mii. In arguing to the contrary, Alan relies heavily on his and

Glenn’s agreement assigning the ‘293 patent and defined

“modifications and improvements” to Materials. See Part II.A.2,

supra. But that was an agreement to assign intellectual property

rights to Materials, not to Mii. Materials has never been a

party here, and Alan does not explain how the agreement conveyed

any rights in the ‘293 patent, or any other intellectual

property, to Mii (which did not even have a license from

Materials for the ‘293 patent, see id.). 1 1

11 While Alan suggests in his sur-reply that, because Materials has been dissolved, he can enforce its rights “as the equitable owner of its property,” he does not explain what he means by “equitable owner.” New Hampshire law is clear that the dissolution of a corporation does not transfer title of its

31 Instead, Alan argues that he personally acceded to

Materials’s rights under the assignment agreement by virtue of

his security agreement with Materials, which defaulted on the

underlying loan. See id. A security interest in the

intellectual property conveyed by the assignment, though, is not

tantamount to ownership of the intellectual property conveyed by

the assignment. To the contrary, to obtain ownership of the

rights of Materials under the assignment, Alan would have needed

to purchase those rights through a “commercially reasonable

disposition.” N.H. Rev. Stat. Ann. §§ 382-A:9-610(a)-(c) (New

Hampshire’s version of Article 9 of the Uniform Commercial Code,

governing secured transactions); c f . Sky Techs. LLC v . SAP AG,

576 F.3d 1374, 1380-81 (Fed. Cir. 2009) (ruling that ownership of

patents serving as collateral under a security agreement passed

to the creditor, but only after it disposed of the patents at a

public auction at which it purchased them). Alan does not claim

to have done s o , and there is no record evidence to that effect.

property to its shareholders or anyone else. See N.H. Rev. Stat. Ann. § 293-A:14.05(c)(1). At most, then, Alan might have caused Materials to bring suit against Glenn for breach of the assignment agreement. But (1) Alan has never sought to add Materials as a party here, and it is too late to do so now, see, e.g., Cabrera v . Municip. of Bayamon, 622 F.2d 4 , 6 (1st Cir. 1980), and (2) any claim by Materials would be barred by the statute of limitations, because Materials was not a party to the prior lawsuit in this court either and therefore cannot avail itself of the savings statute, see note 9, supra.

32 His security agreement with Materials, then, does not allow him

to enforce its assignment agreement with Glenn.

Alan also suggests that Glenn breached the assignment

agreement by “reassigning” the ‘293 patent to himself and Alan in

December 2004. See Part II.A.7, supra. But the agreement

expressly provides for Materials to “immediately reassign to the

Inventors all patent rights assigned to [it] by the Inventors

under this Agreement” upon “termination of this Agreement for any

cause”--and one of the causes for termination expressly set forth

in the agreement is the dissolution of Materials, which occurred

in 2003. See id.

Nevertheless, Alan argues, the agreement was never

terminated, because termination can occur only upon written

notice to Materials, which Glenn never provided. Even if this is

correct, though, the court cannot see how it supports any claim

by Alan (or Mii) that Glenn breached an agreement with him (or

Mii) to assign the ‘293 patent and related intellectual property.

At most, it would support a claim by Materials that it still held

the assignment under the agreement because Glenn had not properly

terminated i t . Again, however, Materials is not a party here,

33 and Alan has not articulated any theory empowering him (or Mii)

to enforce whatever rights Materials has.12

Alan also points to statements in his amended counterclaim

and declarations filed in opposition to the summary judgment

motion, as well as a letter from Mii’s former attorney, that

“create a genuine issue of fact regarding the intentions of Alan

and Glenn with respect to the ownership of the intellectual

property and technology” in question. If Alan means that the

statements and the letter create a genuine issue as to the

existence of an agreement for the ownership of the intellectual

property (which, as distinguished from the parties’ “intentions,”

is the material issue here), the court disagrees.

Most of Alan’s statements simply outline his chief

complaint, noted supra, that he contributed the money that

Materials and Mii used to fund their operations, while Glenn

12 The same reasoning applies to Alan’s complaint that Glenn wrongfully filed the assignment with the USPTO because the assignment agreement vested power of attorney to do so in “the Inventors”--plural, rather than singular, which Alan takes to mean that the power had to be exercised jointly. (This interpretation is questionable: the agreement specifically provides that “[a]ny noun or pronoun shall be deemed to include both the singular and the plural.”) Since Glenn used the power of attorney merely to record the reassignment, rather than to effect it--as he points out, that occurred automatically upon termination of the agreement for cause--it is hard to see how the recording has anything to do with Glenn’s ownership of the intellectual property vis-a-vis Materials, let alone Alan or Mii.

34 “made no personal financial contribution to either” and, in fact,

“was paid for his services primarily from funds loaned and

invested” by Alan. But Alan does not say, or point to any other

evidence suggesting, that Glenn agreed that the result of this

arrangement would be Mii’s (or Alan’s) ownership of any

intellectual property conceived or developed by Glenn.13 That

may have been what Alan expected as a result of his financial

contribution, but “subjective expectations are insufficient to

create an implied contract” under New Hampshire law. Durgin v .

Pillsbury Lake Water Dist., 153 N.H. 8 1 8 , 821 (2006) (quotation

marks omitted). Moreover, as already discussed, Alan always had

an ownership interest in the ‘293 patent--which he characterizes

as the source of all of the intellectual property developed at

Mii--so his expectation was not disappointed, in any event.

As for the letter from the attorney, it states merely that

he had been retained by Alan “for the purpose of inventorying,

evaluating, and continuing the prosecution and maintenance of the

intellectual property developed by” Mii and asks for Glenn, on

behalf of Mii, to consent to this representation since the

attorney “had prepared a patent application for Mii in 2001.”

13 Alan states that Glenn “agreed to contribute his . . . interests in the basic joint patents” to Mii, but a party cannot defeat summary judgment with these sorts of “conclusory allegations,” as already noted. Meuser, 564 F.3d at 515.

35 The court is at a loss to see how this even tends to show what

Alan says it “proves,” i.e., “that [the attorney] believed that

the intellectual property and technology . . . belonged to Mii.”

Regardless, an attorney’s “belief” as to his client’s rights is

not evidence that the client actually has those rights (though

attorneys no doubt wish that were s o ) . Neither the letter, nor

any other record evidence identified by Alan, creates a genuine

issue of fact as to the existence of an agreement between Glenn

and Mii as to the ownership of the ‘293 patent or any other

intellectual property rights.

b. No ownership agreement between Glenn and Alan

Seizing on his recently discovered co-inventorship of the

‘293 patent, Alan argues in his summary judgment filings that he

and Glenn agreed that they would be “tenants in common” as to the

patent, and all of the resulting intellectual property,

obligating them to share in any profits realized from using that

intellectual property. Alan asserts that this--a “tenancy in

common,” rather than a “joint tenancy”--is the “agreement to the

contrary” contemplated by 35 U.S.C. § 2 6 2 , which provides that,

in the absence of such an agreement, “each of the joint owners of

a patent may make, use, offer to sell, or sell the patented

invention . . . without the consent of and without accounting to

36 the other owners.” Needless to say, this theory marks a dramatic

shift from the position Alan took in his amended counterclaim

(and, so far as the court can tell, throughout the entirety of

both this litigation and the parties’ prior lawsuit here). And

that is not the only problem with i t .

But it is a problem, and a fatal one at that. The “tenancy

in common” theory is not even hinted at in Alan’s counterclaim

(which has been amended three times) and, indeed, is inconsistent

with the claims to ownership of intellectual property set forth

there--all of which rest on the premise that Glenn agreed to

assign his intellectual property to Mii, without mentioning any

agreement on that subject with Alan, or even acknowledging that

Glenn had any rights in the intellectual property at all. Even

Alan’s opening memorandum in opposition to summary judgment does

not claim an agreement for a “tenancy in common” but suggests

that such a tenancy arose by operation of law due to the joint

inventorship of the ‘293 patent by Glenn and Alan. It was not

until Glenn pointed out in his reply that this arrangement would

not have prevented Glenn from using the patent or required him to

share in the profits of doing s o , per 35 U.S.C. § 2 6 2 , that Alan

argued, in his sur-reply, that he and Glenn had agreed otherwise.

A plaintiff ordinarily may not raise a theory of relief for

the first time in his opposition to the defendant’s motion for

37 summary judgment, see, e.g., Kunelius v . Town of Stow, 588 F.3d

1 , 19 (1st Cir. 2009), let alone his sur-reply. While the court

could nevertheless treat the objection as a motion to amend, see

id., Alan is plainly not deserving of that relief here. He has

already amended his counterclaim three times since it was first

filed, more than three years ago. More to the point, Alan has

completely changed his characterization of the claimed agreements

for ownership of the intellectual property in the time between

his last amended counterclaim (where he said Glenn had agreed to

assign it to Mii) and his summary judgment sur-reply (where he

now says Glenn agreed that he would hold it as a tenant-in-common

with Alan). For this reason alone, Alan cannot avoid summary

judgment based on his theory that he and Glenn agreed to hold the

‘293 patent or other intellectual property as tenants-in-common.

Indeed, given its substantial deviation from the account of the

parties’ agreement set forth in his prior declarations, Alan’s

declaration supporting the claimed tenancy in common agreement

(submitted with his sur-reply) appears to be a “sham affidavit”

interposed solely to avoid summary judgment. See, e.g., Abreu-

Guzman v . Ford, 241 F.3d 6 9 , 74 (1st Cir. 2001).

Those problems aside, the statements in the declaration do

not create a genuine issue of fact as to the existence of such an

agreement, or its breach. These statements either attest solely

38 to the parties’ expectations or intentions of a joint tenancy for

the intellectual property (i.e., without explicating how they

reached agreement on that point) or assert in a conclusory

fashion that such an agreement existed.14 Like the statements

that Alan offers as “evidence” of Glenn’s agreement to assign his

intellectual property rights to Mii, then, these statements do

not create a genuine issue of material fact as to the existence

of the claimed joint tenancy agreement.

Furthermore, even if they did, there is no evidence tending

to show that Glenn breached any such agreement. Alan has not

pointed to any evidence suggesting that, in Glenn’s dealings with

Lovejoy or otherwise, he made use of the intellectual property

covered by the alleged “tenancy-in-common” arrangement. Instead,

Alan argues that “[s]ince Glenn did not testify in his affidavit

[accompanying his summary judgment motion] that he derived no

14 These statements are worth quoting directly: “[a]t no time was our relative interest in the technology we created . . . be [sic] several interests. Glenn, in particular, never wanted severalability [sic] of interests because he did not want to ever be the victim of what he did to me”; “Glenn and I owned a co- tenancy in common interest in all of the patents, intellectual property and technology and other technology”; “I acquired, owned, and intended to acquire and own a 50% interest in all of the patents and intellectual property and technology developed with my money and all of the profits derived from those patents and intellectual property and technology, not an interest that could be taken by my brother for his own benefit”; and “Glenn and I agreed that we would each have a 50% tenancy in common interest for the patents and share the profits derived from the property.”

39 profit or benefit from the patent and related intellectual

property, this court must infer that he did.”

While that sort of logic has some historical pedigree (the

Star Chamber’s practice of finding defendants guilty because they

refused to deny the charges against them comes to mind, see,

e.g., VII John Henry Wigmore, Evidence § 2250, at 281-83 (John T .

McNaughton, ed., rev. ed. 1961)), it has not taken hold in

federal court. Rather, “[a]s to issues on which the summary

judgment target bears the ultimate burden of proof, she cannot

rely on an absence of competent evidence, but must affirmatively

point to specific facts that demonstrate the existence of an

authentic dispute.” McCarthy v . Nw. Airlines, Inc., 56 F.3d 313,

315 (1st Cir. 1995); accord II Wigmore, supra, § 2 9 0 , at 219-20.

So Alan, who bears the burden of proof on his claim for breach of

contract--including his new theory that Glenn, without accounting

to Alan, used the technology covered by the alleged joint tenancy

agreement to do work for Lovejoy--cannot avoid summary judgment

on that theory by arguing that Glenn has failed to disprove i t .

In short, Alan has failed to raise (i) a genuine issue of

fact as to the existence of an agreement for Glenn to assign the

‘293 patent or any other intellectual property to Mii, (ii) any

legitimate theory that would enable Alan (or Mii) to enforce

Glenn’s assignment agreement with Materials, or (iii) a genuine

40 issue of fact as to the existence or breach of an agreement for

joint tenancy of the ‘293 patent, even if that claim were

properly presented. Accordingly, Glenn is entitled to summary

judgment on Alan’s claim for breach of contract (count 1 ) , as

well as his claim for breach of the covenant of good faith and

fair dealing (count 2 ) , because--contrary to what Alan seems to

suggest in his counterclaim--the covenant does not exist

independently of a contract, see J&M Lumber & Constr. Co., Inc.

v . Smyjunas, 161 N.H. 7 1 4 , 724 (2011).

2. Other claims based on ownership

As noted at the outset, Alan also makes a number of other

claims based on his (or Mii’s) claimed ownership of intellectual

property, including claims for relief based on “ownership of

intellectual property rights” (count 1 0 ) , unjust enrichment

(count 1 1 ) , conspiracy (count 1 4 ) , violation of § 358-A (count

1 2 ) , tortious interference with prospective contractual relations

(count 1 3 ) , and “constructive trust and specific performance”

(count 1 6 ) . For the most part, these claims depend on an

agreement by Glenn to assign intellectual property to Mii or to

Alan and, as just discussed at length, Alan has failed to show a

genuine issue as to the existence of such an agreement. Insofar

as Alan could prevail on any of these claims without proving such

41 an agreement, they nonetheless have other deficiencies that

entitle Glenn to summary judgment.

a. Ownership of intellectual property

As set forth in the amended counterclaim, Alan’s claim for

“ownership of intellectual property” (count 10) asserts Glenn’s

“contractual and equitable obligations to assign rights to

inventions invented during the course of his performance of work

for Mii to Mii.” Again, Alan has not pointed to any evidence of

a contract to that effect between Glenn and Mii, and neither Alan

nor Mii can enforce Glenn’s contract to that effect with

Materials. See Part III.A.1.a, supra. While Alan, in his

memorandum opposing summary judgment, also refers to license

agreements between Mii and Materials, Glenn was not a party to

those agreements, so they likewise did not obligate him to

transfer any intellectual property to Mii or to Alan.15

Alan’s claim that Glenn had “equitable obligations” to that

effect seems to refer again to Alan’s complaint that he made all

of the capital investment in Mii, while Glenn made none. As

already discussed, though, Alan has not pointed to anything

15 Alan also refers to Mii’s limited liability company agreement. While Glenn was a party to that agreement, it makes no provision for ownership of any intellectual property, and Alan does not argue to the contrary.

42 beyond his subjective expectation to suggest an agreement or

understanding that, as a result, he would personally own any

intellectual property developed by Glenn during Mii’s existence

(and, in line with that expectation, Alan has always been a co-

owner of the ‘293 patent--which he identifies as the source of

“[a]ll subsequent intellectual property”). See Part III.A.1,

supra. Nor has Alan identified any agreement between Glenn and

Mii that the company would own the intellectual property he

developed during his work on its behalf.

As Glenn also points out, Alan has likewise not identified

the particular intellectual property that he (or Mii) claims to

own, let alone come forward with any evidence that Glenn in fact

even created any particular intellectual property in that

capacity. Thus, even if Mii (or Alan) had some equitable claim

to intellectual property Glenn created while working for Mii--a

point this court need not and does not decide--Alan has not

provided the necessary evidentiary support for that claim, i.e.,

that Glenn actually created particular intellectual property

while working for Mii.16 This evidentiary gap, moreover, makes

16 This is more than a technicality, in light of the fact that, as reflected by the Materials-Mii license agreement, much of the intellectual property used by Mii was created by Glenn and others while they were working for Materials. Insofar as this arrangement reposited ownership of that intellectual property in any person besides its inventors, then, that person would have

43 Alan’s insistence that Glenn was Mii’s employee, as opposed to an

independent contractor, immaterial.

This is fatal to Alan’s claim to “ownership of intellectual

property” insofar as it is based on Glenn’s alleged “equitable

obligations to assign rights to inventions invented during the

course of his performance of work for Mii to Mii.” Because,

again, Alan has also failed to come forward with evidence that

Glenn had any contractual obligation to that effect, Glenn is

entitled to summary judgment on this claim (count 1 0 ) .

b. Unjust enrichment and constructive trust

For essentially the same reasons, Glenn is also entitled to

summary judgment on Alan’s claims for unjust enrichment (count

11) and constructive trust and specific performance (count 1 6 ) ,

insofar as that relief is directed at intellectual property.

“Unjust enrichment is an equitable remedy, found where an

individual receives a benefit that it would be unconscionable for

him to retain.” Clapp v . Goffstown Sch. Dist., 159 N.H. 206, 210

been Materials, not Mii or Alan--and, again, Alan has not advanced any legitimate theory that would enable him (or Mii) to enforce rights that belonged to Materials. See Part III.A.1.a, supra. Furthermore, Mii’s license agreement with Materials provided that any improvements on the technology covered by the license belonged to Materials, not to Mii, so (by Alan’s own account of the development of the technology at issue here) any right to inventions by Glenn during his work for Mii would seem to belong to Materials.

44 (2009). Alan’s unjust enrichment claim sounds the familiar

refrain that he “invested substantial time, labor and money in

the creation and production of the press technology,” but was

deprived of the benefit of that investment when Glenn

“misappropriated the press technology.”

As just discussed, though, Alan has not identified--let

alone provided any evidence of--any intellectual property that

Glenn developed during his time at Mii so that his retention of

it would be “unconscionable” in light of Alan’s investment in the

company. Furthermore, as also already discussed, Alan has not

come forward with evidence that Glenn has used any of the

intellectual property developed through his ventures with Alan,

whether in Glenn’s dealings with Lovejoy or otherwise. See Part

III.A.1.b, supra. These shortcomings are fatal to Alan’s unjust

enrichment theory, which requires a genuine issue as to whether

Glenn received some benefit at Alan’s expense. See, e.g., Cohen

v . Frank Developers, Inc., 118 N.H. 5 1 2 , 518 (1978); Restatement

(Third) of Restitution and Unjust Enrichment § 2 cmt. b (2011).

It is also worth repeating that, at least as to the ‘293

patent, Alan received the same benefit for his financial

contributions that Glenn did for his inventive ones, i.e., a

45 co-ownership interest in the patent that allowed him to sell,

license, or use it without his brother’s participation. See Part

III.A.1, supra. Though the court need not decide this issue,

co-ownership of a patent between the person who accomplished the

invention and the person who funded the work seems sufficiently

“just” (especially to the funding partner) such that no rational

factfinder could deem it “unconscionable.” In any event, Glenn

is entitled to summary judgment on Alan’s unjust enrichment claim

(count 10) due solely to the lack of evidence that Glenn received

any benefit at Alan’s expense. Glenn is likewise entitled to

summary judgment on Alan’s claim for constructive trust (count

1 6 ) , insofar as it seeks a remedy for Glenn’s unjust enrichment

through his “misappropriation” of the intellectual property.17

c. Violation of § 358-A, interference with prospective contractual relations, and conspiracy

For much the same reasons, Glenn is also entitled to summary

judgment on one of Alan’s claims for violations of the Consumer

Protection Act, N.H. Rev. Stat. Ann. § 358-A (count 1 2 ) , one of

Alan’s claims for interference with prospective contractual

relations (count 1 3 ) , and his claim for conspiracy.

17 As pled in the amended counterclaim, count 16 also seeks relief for Glenn’s alleged misappropriation of Mii’s relationship with Lovejoy. That aspect of count 16 is discussed infra at Part III.C.2.

46 The § 358-A claim set forth as count 12 of the counterclaim

alleges that Glenn’s “representation that he is the source of the

press technology and that he owns the intellectual property

relating thereto constitutes a false designation of origin.”

Assuming, without deciding, that misrepresentations as to

ownership of intellectual property are actionable under

§ 358-A,18 there is no evidence that Glenn ever represented to

Lovejoy or any of Mii’s other actual or prospective customers

that he “was the source of” or “owned” any intellectual property

developed during his ventures with Alan o r , for that matter, that

such a claim would have been false. See Part III.A.1, supra.

This gap is also fatal to Alan’s claim for tortious interference

with prospective contractual relations as set forth in count 1 3 ,

alleging that Glenn accomplished this tort by “representing that

[Glenn Beane LLC] and Glenn [ ] own the intellectual property.”19

18 As Glenn points out, the Consumer Protection Act specifically prohibits false designations of source as to “goods or services” only, N.H. Rev. Stat. Ann. § 358-A:2, I I , and intellectual property is not included in that phrase--at least as it appears in the analogous provision of the Lanham Act, 15 U.S.C. § 1125, as this court noted in dismissing the Beanes’ prior lawsuit in this court. Beane v . Beane, 2008 DNH 0 8 2 , 4 . The court need not and does not decide whether a similar limitation applies to § 358-A. 19 This claim also fails because there is no evidence that anything Glenn said to Lovejoy or any other customer--whatever it was--caused Mii to lose any actual or prospective contractual relationships. See infra Part III.C.2.

47 Alan’s memorandum in opposition to summary judgment asserts

that Glenn violated the Consumer Protection Act through other

conduct, including “block[ing] the Fleet loan, caus[ing] Mii to

breach or be unable to perform the Lovejoy contract and then

tak[ing] Mii’s customers and property paid for by [Alan].” This

assertion is safely ignored, since it is not further developed.

See, e.g., Higgins v . New Balance Athletic Shoe, 194 F.3d 2 5 2 ,

261 (1st Cir. 1999). As best the court can understand i t ,

though, it does not state any supportable § 358-A claim anyway.

First, the only evidence of any “property” that Glenn “took”

is his re-assignment of the ‘293 patent, and that did not violate

the rights of either Alan or Mii, as already discussed. See Part

III.A.1, supra. (Even as to Materials, the re-assignment was at

worst a breach of the assignment agreement on the theory that

Glenn failed to provide the required notice of termination, see

id., a transgression that cannot support a § 358-A claim

regardless, see, e.g., Barrows v . Boles, 141 N.H. 3 8 2 , 390

(1996)). Second, no rational factfinder could conclude that

Glenn’s handling of the Lovejoy contract for Mii was even grossly

negligent, let alone unfair or deceptive, or that Glenn’s

dealings with Lovejoy or other customers after he left Mii were

tortious. See infra Parts III.C.1-2. Third, assuming that the

charge of Glenn’s “blocking the Fleet loan” refers to his refusal

48 to provide Alan with the requested assurance that “all

intellectual assets that have been or will be created by Glenn

. . . and relate to [Mii’s] business have been or will be

assigned to Mii,” see Part II.A.4, supra, no rational factfinder

could conclude that Glenn had assigned any intellectual property

to Mii, or had any obligation to do s o , see Part III.A.2.a, supra

(and, as just noted, Glenn’s simple breach of any such obligation

could not amount to a § 358-A violation as a matter of law

anyway, see Barrows, 141 N.H. at 3 9 0 ) .

Lastly, Glenn is entitled to summary judgment on Alan’s

claim for a conspiracy between Glenn and Glenn Beane LLC “to take

the Intellectual Property developed, commercialized, and patented

by Mii with Alan Beane’s money” (count 1 4 ) . There is neither any

evidence of intellectual property developed or patented during

Glenn’s time at Mii so that Mii could potentially have some right

to i t , see Part III.A.2.a, supra, nor that Glenn or Glenn Beane

LLC “took” or even used any such intellectual property, see Part

III.A.2.a, supra. (The sole exception is the ‘293 patent, but,

again, nothing Glenn did ever deprived Alan of his co-ownership

of that.) Glenn is entitled to summary judgment on counts 12

(violation of § 358-A), 13 (tortious interference with

prospective contractual relations), and 14 (conspiracy).

49 B. Misappropriation of confidential information and trade secrets

Alan’s claims for misappropriation of confidential

information (count 6 ) and trade secrets (count 7 ) are, to put it

charitably, poorly conceived. The “confidential information”

claim alleges that Glenn “acquired information relating to the

business of Mii during the course of his employment by Mii,”

including “knowledge of powder metals and powder metal compaction

presses,” then “used the confidential information of Mii to

misappropriate the business of Mii.”

As Glenn points out, however, the New Hampshire version of

the Uniform Trade Secrets Act “displaces conflicting tort,

restitutionary, and other law of this state providing civil

remedies for misappropriation of a trade secret.” N.H. Rev.

Stat. Ann. § 350-B:7, I . As Glenn further points out, this

“essentially creates a system in which information is classified

only as either a protected trade secret or unprotected general

knowledge,” and that, as a result, New Hampshire law “no longer

protects confidential information from mere misuse unless it is a

statutory trade secret.” Mortg. Specialists, Inc. v . Davey, 153

N.H. 7 6 4 , 789 (2006). Alan has no claim for misappropriation of

confidential information, then, unless that information qualifies

50 as a “trade secret” under New Hampshire’s version of the Uniform

Trade Secrets Act.20

As Glenn also points out, Alan has not demonstrated a

genuine issue of material fact that any of the “information” that

Glenn allegedly misappropriated meets the statutory definition of

trade secret. Under the Trade Secrets Act, a trade secret i s :

information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

(a) Derives independent economic value, actual or potential, from not being generally known t o , and not being readily ascertainable by proper means by, other

20 Alan points out that, under the Limited Liability Company Act, “[e]very member and manager must account to limited liability company and hold as trustee for it any unfair or unreasonable profit or benefit derived by that person from” his “use . . . of confidential or proprietary information of the limited liability company or other matters entrusted to the member as a result of such status.” N.H. Rev. Stat. Ann. § 304- C:31, V(b)(2). Under this provision, Alan argues, Mii has a claim against Glenn for using the confidential information entrusted to him, and that claim is not pre-empted by the Trade Secrets Act. In Mortgage Specialists, however, the New Hampshire Supreme Court ruled that the Trade Secrets Act preempted the plaintiff’s claim that it “entrusted [its employees] with confidential . . . information, that trust gave rise to a fiduciary duty in them, and . . . they breached that duty” when they “took and used” the confidential information for their own benefit. 153 N.H. at 781-82. That theory is indistinguishable from Alan’s. In any event, even if the Trade Secrets Act did not pre-empt Alan’s claim against Glenn for misappropriation of confidential information--under the Limited Liability Company Act or otherwise--that claim would still fail because (i) there is no evidence that Glenn used Mii’s confidential information in his post-resignation dealings with Lovejoy, see infra this Part, and (ii) Glenn was no longer a “member” at that point, so § 304-C:31, V(b)(2) did not apply to him, see infra Part III.C.2.

51 persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

N.H. Rev. Stat. Ann. § 350-B:1, IV. Alan has failed to create a

genuine issue as to whether any of the claimed trade secrets

satisfy either part of this definition.

Alan’s amended counterclaim asserts simply that “Mii

maintains certain trade secrets in connection with its business,”

without describing them any further. Alan’s summary judgment

memorandum does not go much beyond that, asserting that Mii had

trade secrets in its “commercializable technology” as listed in

one of Alan’s interrogatory responses.21 That response

identifies the alleged trade secrets at issue a s :

A. Manufacturing system control software source and execution codes and operating documentation kept in hard copy, electronic record form and on Mii computers.

21 In discussing his trade secrets claim, Alan also refers to “patents and patent rights.” But, as he correctly acknowledges, “the patent process route to intellectual property protection [is] the antithesis of the trade secret approach”--with the result that information contained in publicly filed patents and patent applications cannot be a trade secret. See, e.g., Tewari De-Ox Sys., Inc. v . Mountain States/Rosen, L.L.C., 637 F.3d 6 0 4 , 611-12 (5th Cir. 2011). Of course, any claim for Glenn’s use of Mii’s patents (and it is not clear what those are, since the only patents referenced in anything in the record were issued to Glenn and other individuals and assigned to Materials, not to Mii) would have to sound in patent infringement, and no such claim appears among the 21 counts of the amended counterclaim.

52 B. The electronic and hard copy database of all commercializable work product created by all of the Mii companies’ employees.

C. The electronic and hard copy data base of all Mii’s vendors including everything required to engage with them to replicate or improve upon the work product of Mii vendor contracts.

D. The electronic and hard copy data base of all of Mii’s customers, including potential customer contacts, including everything required to engage with them or replicate or improve upon those business and technical relationships.

E. The entire engineering and tooling design data base including the information necessary to replicate or improve upon every material, part or manufacturing system product ever conceived and constructed by the Mii companies.

Essentially, this amounts to an assertion that every piece of

information ever created by Mii amounts to a trade secret.

Needless to say, the protections of the Uniform Trade

Secrets Act are considerably narrower than that. Indeed, a

company cannot sustain a claim under the Act by “effectively

asserting that all information in or about its [product] is a

trade secret. That’s not plausible--and, more to the point, such

a broad assertion does not match up to the statutory definition.”

IDX Sys. Corp. v . Epic Sys. Corp., 285 F.3d 5 8 1 , 583 (7th Cir.

2002); see also Sutra, Inc. v . Iceland Express, EHF, N o . 04-

11360, 2008 WL 2705580, at *4 (D. Mass. July 1 0 , 2008).

53 Alan makes no effort to explain how any of the

extraordinarily broad categories of information set forth in his

interrogatory answer have any of the attributes of trade secrets

under the Act, i.e., they have independent economic value derived

from their secrecy, they are not readily ascertainable by others

by proper means, and they are subject to reasonable efforts to

maintain their secrecy.22 For this reason, Glenn is entitled to

summary judgment on Alan’s claim for misappropriation of trade

secrets. See IDX Sys., 285 F.3d at 583-84; Sutra, 2008 WL

2705580, at *4-*5; c f . Contour Design, Inc. v . Chance Mold Steel

Co., N o . 08-451, 2010 WL 4774283, at *5 n.2 (D.N.H. Oct. 2 2 ,

2010) (refusing to recommend a preliminary injunction based on a

trade secrets claim where “plaintiff has not . . . identified

22 On this last point, Alan’s statement that “Mii entrusted the safeguarding and protection of Mii’s trade secrets to Glenn,” who “insisted on being the sole integrative repository of Mii’s aggregate commercializable technologies,” is yet another conclusory assertion that does not suffice to create a genuine issue of material fact. Indeed, this assertion is contrary to the balance of the interrogatory answer, which states that much the information was kept in an “electronic and hard copy data base”--without even mentioning, of course, what “reasonable efforts” Mii took to maintain the secrecy of those files. Alan’s summary judgment memorandum misses this point entirely, arguing at length that, because of Glenn’s status as Mii’s member and manager, it was entitled to assume that he would safeguard any confidential information that he learned in that capacity. Even if that is true, it does not answer the question of whether the information was a trade secret in the first place because, among other things, it was reasonably protected from disclosure by anyone at the company who learned of i t , not just Glenn.

54 with reasonable specificity the trade secrets that [defendant]

allegedly misappropriated”) (McCafferty, J . ) , rep’t & rec.

adopted, 2010 WL 4736428 (D.N.H. Nov. 1 2 , 2010), aff’d, 649 F.3d

31 (1st Cir. 2011). The court grants Glenn’s motion for summary

judgment on counts 6 (misappropriation of confidential

information) and 7 (misappropriation of trade secrets). 23

C. Breach of fiduciary duty and tortious interference

In addition to his charge that Glenn misappropriated Mii’s

intellectual property, Alan’s other principal complaint is that

Glenn mismanaged the company’s relationship with Lovejoy during

his time there and then, after leaving Mii, took the relationship

(as well as Mii’s relationships with other potential customers)

for himself. This is the premise of Alan’s claims for breach of

fiduciary duty (counts 3 - 5 ) , tortious interference with

contractual relations (count 8 ) , his remaining claim for tortious

interference with prospective contractual relations (count 9 ) ,

23 In his memorandum supporting his summary judgment motion, Glenn also requests attorneys’ fees under the Trade Secrets Act, which allows the court to award them to the prevailing party when “[a] claim of misappropriation is made in bad faith.” N.H. Rev. Stat. Ann. § 350-B:3, I . Under this court’s rules, however, requests for separate and distinct relief (e.g., for summary judgment and for attorneys’ fees) cannot be combined in a single motion. L.R. 7.1(a). So Glenn’s request for fees is denied.

55 and part of his claim for “constructive trust and specific

performance” (count 1 6 ) .

As Alan appears to acknowledge, however, Glenn has no

liability to either Mii or Alan for actions taken while he was

still a member or manager of the limited liability company unless

they amounted to “gross negligence or willful misconduct.” N.H.

Rev. Stat. Ann. §§ 304-C:31, IV-V. As fully explained infra at

Part III.C.1, Alan has not demonstrated a genuine issue as to

whether Glenn’s handling of the Lovejoy relationship on behalf of

Mii amounted to gross negligence or willful misconduct.

Furthermore, as fully set forth infra at Part III.C.2, Alan has

not explained how Glenn retained any duties to Mii (or Alan)

following Glenn’s resignation from Mii in March 2004. That

shortcoming aside, moreover, Glenn’s subsequent dealings with

Lovejoy neither breached any such duties, nor are otherwise

actionable, because there is no dispute that Lovejoy initiated

its dealings with Glenn only after Mii had admitted it would be

unable to make Lovejoy’s press function properly and abandoned

the relationship.

1. Glenn’s handling of Lovejoy while at Mii

Two of Alan’s claims for breach of fiduciary duty arise out

of Glenn’s alleged mismanagement of Mii’s relationship with

56 Lovejoy (counts 3 and 5 ) . Both allege, in essence, that Glenn

“took actions that resulted in disputes between Mii and Lovejoy

that caused the loss of payments by Lovejoy under the contract to

Mii and the loss of Mii’s future business opportunities with

Lovejoy.” Alan acknowledges that Glenn’s duties as a manager and

member of Mii are established by the relevant provisions of New

Hampshire’s Limited Liability Company Act. Those provisions

state, in relevant part:

IV. A member or manager shall be liable, responsible, and accountable in damages or as otherwise provided by law to the limited liability company or to the members of the limited liability company for any action taken or failure to act on behalf of the limited liability company, if such act constitutes gross negligence or willful misconduct.

V. Subject to the liability of a member or manager for acts of gross negligence or willful misconduct provided for in paragraph IV, and unless otherwise provided in the limited liability company agreement:

(a) A member or manager shall not be liable, responsible or accountable in damages or as otherwise provided by law to the limited liability company or to the members of the limited liability company for any action taken or failure to act on behalf of the limited liability company.

N.H. Rev. Stat. Ann. § 304-C:31. In so many words, then, the

manager or member of a limited liability company is not liable to

it or to its members for his actions or inaction on its behalf,

57 unless they amount to gross negligence or willful misconduct.24

See Todd v . Sullivan Constr. LLC, 191 P.3d 196, 202 (Idaho 2008)

(applying similar provisions of Idaho’s LLC a c t ) .

Neither party attempts to define the phrase “gross

negligence or willful misconduct” as it appears in the Limited

Liability Company Act, nor is there any New Hampshire case law

expounding upon i t . But this court recently had occasion to

interpret the phrase as it appeared in a similar context--the

indemnification provision of a private agreement that limited

liability to the indemnitor’s “willful misconduct or gross

negligence.” Lifespan Corp. v . New Eng. Med. Ctr., Inc., 2011

DNH 083, 18 (applying Massachusetts l a w ) . There, this court

observed that “‘gross negligence’ means ‘very great negligence,

or the absence of slight diligence, or the want of even scant

care.’” Id. at 18 (quoting Altman v . Aronson, 121 N.E. 505, 506

(Mass. 1919)). This court further observed that “willful

misconduct” was an even higher standard, limited to “misconduct

that is either intentional or involves ‘such recklessness as is

the equivalent of intent,’ and carries a ‘great chance’ of

causing harm to another.” Id. (quoting Dillon’s Case, 85 N.E.2d

6 9 , 74 (Mass. 1949)). In the absence of any guidance from the

24 The Mii limited liability company agreement does not “otherwise provide.”

58 parties, this court will apply these standards--which are

formidable--to Alan’s claim under the identical language of the

relevant provisions of the Limited Liability Company Act.

Alan asserts that, during Glenn’s time at Mii, his handling

of the company’s relationship with Lovejoy amounted to gross

negligence or willful misconduct in that he (a) “negotiat[ed] or

enter[ed] into the contract knowing that it could not be

fulfilled,” (b) “fail[ed] to design and manufacture the Lovejoy

presses as required by the contract,” and (c) “exhaust[ed] the

resources of Mii by causing more than $500,000 in easily

avoidable engineering errors.”25 Alan has failed to come forward

with evidence creating a genuine dispute as to whether any of

these actions constituted “gross negligence or willful

misconduct” on Glenn’s part.

First, there is simply no evidence that Glenn caused Mii to

enter into the contract with Lovejoy “knowing that it could not

be fulfilled” or failed to see that Mii honored the contract. As

25 Alan cites further examples of Glenn’s alleged gross negligence or willful misconduct, including (d) “abandoning the company in the middle of its problems with Lovejoy,” (e) “blocking the Fleet loan by refusing to acknowledge the exclusive license rights to the technology,” and (f) “helping Lovejoy so that it did not need to honor its commitments to Mii, and taking the Lovejoy relationship for himself.” These theories also fail, for the reasons discussed: (d) infra at Part III.D, (e) at Part III.A.2.c, supra, and (f) infra at Part III.C.2.

59 an initial matter, there is no evidence as to what Glenn even

committed Mii to do in the contract, because Alan has failed to

provide a copy of i t . Without the contract, of course, no

rational factfinder could conclude that Mii failed to honor i t ,

let alone that such a failure resulted from Glenn’s gross

negligence or willful misconduct. (It is also worth noting

Alan’s claim that, even before Glenn left Mii, Lovejoy’s system

“fully met the contract specifications,” see note 3 , supra,

which--to put it mildly--seems inconsistent with Alan’s argument

that Glenn caused Mii to breach the contract.) Nor is there any

evidence that, whatever that commitment was, Glenn “knew” that

Mii would not be able to deliver on it (and it is worth noting

that Alan himself participated in negotiating the contract with

Lovejoy, see Part II.A.3, supra, and therefore would seem to be

at least as responsible as Glenn for any problems in the

resulting agreement).

Instead, taken in the light most favorable to Alan, the

record shows only that, after the contract was signed, Glenn had

discussions with Mii that eventually led to a misunderstanding

with Lovejoy about whether Mii had agreed to new contractual

specifications, viz., the “fluidization component,” see Part

II.A.3, supra, and, if s o , whether those specifications served to

modify the existing contract at no extra cost to Lovejoy or

60 amounted to “a time and materials addition,” see Part III.A.5,

supra.26 There is no evidence that Glenn in fact agreed to the

new specifications: to the contrary, Alan himself insists that

“[t]here is no paperwork or documentation available to Mii that

would substantiate such a contractual commitment.” Alan does not

explain how talking to a customer about modifications to a

forthcoming product--but without agreeing to make them--could

amount to near “gross negligence or willful misconduct,” even if

the customer walks away from those discussions with the

understanding that such a commitment has been made.

Furthermore, even if Glenn had committed Mii to delivering

on new specifications, there is no evidence that he knew (or even

should have known) Mii would be unable to do s o . To the

contrary, Alan himself states that “Mii realized” that it had

technology that, with modifications, “might” suffice to meet

26 This is itself an exceedingly generous reading of the record. Not only is there no evidence of the provisions of the Mii-Lovejoy contract, as just noted, but there is also no evidence of anything in particular that Glenn actually told Lovejoy. There is only Alan’s reference to “many conversations between Glenn” and Lovejoy about “the perceived necessity to upgrade the capabilities of the system” as those conversations are reflected in “Mii’s email files”--which have not been provided. In light of these gaps in the record, no rational factfinder could even accept the premise of Alan’s theory that Glenn was grossly negligent in his dealings with Lovejoy, i.e., that he said something that he knew or should have known Lovejoy would take as a commitment to provide the upgrade.

61 those specifications. Alan does not explain how committing the

company to execute on a difficult--but not impossible--project

amounts to “gross negligence or willful misconduct.” (It should

be noted here that, in a further inconsistency between Alan’s

gross negligence claim and his own account of Mii’s dealings with

Lovejoy, Alan claims that Mii was ultimately able to deliver on

the new specifications anyway, see note 5 , supra.) Based on the

evidence provided by Alan, as augmented by all reasonable

inferences in his favor, no rational factfinder could conclude

that Glenn acted with “the want of even scant care,” let alone

recklessly, in negotiating the Lovejoy contract or causing Mii to

breach i t .

Second, there is also no evidence from which a rational

factfinder could conclude that Glenn was grossly negligent or

worse “by causing more than $500,000 in easily avoidable

engineering errors” in designing the press for Lovejoy. The only

support for this claim comes from the statements in Alan’s

declarations that Glenn “circumvented” Mii’s “detail design

engineering relationship” with an outside engineering firm “by

essentially engaging [its] assistance in mechanical drafting as

opposed to engineering oversight” and that Glenn misdesigned “the

components and the inner walls of the outer cylinder components,”

62 so that “thermal expansion” caused them to touch, resulting in

“catastrophic press failure.” See Part II.A.3, supra.

But Alan points to no evidence even remotely suggesting a

standard of care that would demand “engineering oversight” by an

outside firm, nor that would exclude the kind of design error

made by Glenn. Indeed, the standard of care for designing what

Alan himself calls “a very sophisticated 8 level, 1000 ton

pressing system” is “so distinctly related to some science,

profession, business or occupation as to be beyond the ken of

average layman” and, therefore, requires expert testimony to

prove i t . Lemay v . Burnett, 139 N.H. 633, 635-36 (1995)

(affirming dismissal of claim that defendant had negligently

designed a swimming pool for want of expert testimony). Alan

would also need expert testimony to show that the additional

costs of designing the press resulted from these errors, as

opposed to other factors (such as the improper design of the

cooling system by a third party, see Part II.A.3, supra). See,

e.g., Bartlett v . Mut. Pharm. Co., 731 F. Supp. 2d 1 8 4 , 188-89

(D.N.H. 2010). Alan has not come forward with any such testimony

o r , for that matter, anything more than a few statements in his

own declaration blaming Glenn for mistakes in designing the

press. These statements are insufficient to sustain a claim for

negligence, let alone for gross negligence or willful misconduct.

63 Alan also suggests another theory of “willful misconduct” by

Glenn. In one of his declarations, Alan states that, “[i]n my

opinion, based on my knowledge of Lovejoy, [its principal]

Hennessy, Glenn Beane and the events, I believe that Glenn and

Lovejoy contrived a pattern of conduct that ended up with their

joint co-opting of Mii’s business opportunity.” So far as the

court can tell, Alan’s theory is essentially that Glenn, while

still at Mii, agreed that it would provide the fluidization

system “as a no charge deliverable to the original purchase

order” from Lovejoy, without telling Alan or anyone else at Mii,

then “deliberately engineered” Mii’s failure to provide that

component even though it could have. This enabled Glenn, after

resigning from Mii, to hold off on “step[ping] into the Lovejoy

situation until he was certain that Mii had essentially solved

the problems [so] that his effort, if any, would be minor, but

his ability to claim credit major.”

Most importantly, Alan says, this scheme allowed Glenn to

“appropriate all or some of [Mii’s] value to himself without ever

having to provide a return on account of [Alan’s] investment.”

Alan ventures that Glenn hatched the scheme after he and their

brother David, as part of their efforts to find a potential new

investor or buyer for Mii, arrived at a valuation in excess of

$60 million (this was all done, Alan says, without his knowing).

64 Alan “believe[s] that 5 seconds after Glenn saw” this valuation,

“he undertook to engineer the failure of the company.”

This theory gets high marks for creativity and, if proven,

would almost certainly amount to the sort of “willful misconduct”

actionable under § 304-C:31, IV. But, as reflected in Alan’s own

characterization of the theory as his “opinion” and “belief,”

there is absolutely no proof of any such nefarious agreement

between Glenn and Lovejoy. The theory is also inherently

implausible because, among other reasons, it fails to explain why

Lovejoy would willingly suffer a lengthy delay in the delivery of

a sophisticated piece of machinery it needed for its business at

no apparent benefit to itself, but merely to help Glenn and harm

Alan. (This would include the several weeks after Lovejoy

learned of Glenn’s departure that it continued working on the

press with Alan and Mii--a period of cooperation that ended only

when Alan announced that Mii was quitting and then stopped

returning Lovejoy’s calls and e-mails, see Part II.A.6, supra).

Alan’s willingness to sign a declaration “swearing” to this

theory, then, does not create a genuine issue of material fact.

Glenn is entitled to summary judgment on Alan’s claims for breach

of fiduciary duty (counts 3 and 5 ) insofar as they arise out of

Glenn’s mishandling of Mii’s relationship with Lovejoy.

65 2. Glenn’s relationship with Lovejoy following his resignation from Mii

As already noted, one of Glenn’s claims in this case was

that his membership in Mii terminated as of February 4 , 2004, the

day he provided a letter announcing his resignation from that

position, among others. See Part II.A.5, supra. Alan eventually

agreed to this fact, during a conference with the court, and

this court entered judgment for Glenn on that claim accordingly.

See Part II.B.2, supra. Glenn argues that, when his membership

in Mii ceased, so did any of his duties to either Mii or Alan, so

they have no claim against him for his dealings with Lovejoy

after his resignation, whether styled as a claim for breach of

fiduciary duty, tortious interference, or otherwise.

Alan’s summary judgment memorandum does not directly address

this point, arguing instead that Glenn’s resignation from his

role as Mii’s manager did not terminate his duties to the

company, because, as just discussed, the provisions of the

Limited Liability Act impose duties on members as well. By their

terms, however, those provisions apply only to a “member,” not to

a former member. See N.H. Rev. Stat. Ann. §§ 304-C:31, IV-V.

This includes the provision on which Alan most heavily relies,

§ 304-C:31, V(b)(2). That provision states that “[e]very member

66 . . . must account to the limited liability company and hold as

trustee for it any unfair or unreasonable profit derived by that

person” from “use by the member . . . of the company’s property,

including, but not limited t o , confidential or proprietary

information of the limited liability company or other matters

entrusted to the . . . member as the result of such status.” Id.

§ 304-C:31, V(b)(2) (emphases added).

Thus, by its terms at least, § 304-C:31, V(b)(2) does not

apply to Glenn’s dealings with Lovejoy after he left Mii, because

he was no longer a “member” at that point. (Of course, further

problems with this claim, as already discussed, are the absence

of evidence that Glenn used Mii’s “confidential or proprietary

information” in his post-resignation dealings with Lovejoy, see

Part III.B, supra, and that such a claim appears to be pre-empted

by the Trade Secrets Act, see note 2 0 , supra.) Nor, for that

matter, does § 304-C:31, IV, which, as just discussed, imposes

liability on a “member or manager”--not a former member or former

manager--for gross negligence or willful misconduct.

Alan does not provide any other authority for the

proposition that, after Glenn resigned from Mii, he continued to

owe Mii, or Alan, any duty preventing Glenn from doing business

with Lovejoy or any of Mii’s other customers. The amended

counterclaim asserts several other bases of a “confidential

67 relationship” between Alan and Glenn, i.e., (i) their kinship,

(ii) the Mii limited liability company agreement, (iii)

unspecified “New Hampshire law,” and (iv) Alan’s “justifiable

belie[f] that [Glenn] would act in their best interests.” But

the Mii limited liability company agreement, like the Act itself,

does not impose any duties on former members.

Alan’s remaining assertions seem to suggest “[t]he basic

confidential relationship [that] arises out of the family

relationship, where one party is justified in believing that the

other party will act in [his] interest.” Clooney v . Clooney, 118

N.H. 7 5 4 , 757 (1978). But that “relationship generally is marked

by a disparity in position,” id. (citing 4 George G. Bogert,

Trusts and Trustees § 482 (rev. 2d ed. 1978)), which was not the

case here, where Alan and Glenn had equal ownership interests and

roles in the management of Mii. Indeed, as the current version

of the treatise cited in Clooney explains, “kinship alone . . .

does not itself establish a confidential relationship. In fact,

often relatives are hostile to each other or deal at arm’s length

and act independently and thus are held not to have been in a

confidential relationship.” 24 George G. Bogert et a l . , Trusts

and Trustees § 482 (rev. 3d ed. 2009) (footnotes omitted). That

was manifestly the case here. There was no familial confidential

relationship as a matter of law.

68 Furthermore, in his surreply, Alan appears to retreat from

his theory that Glenn continued to owe him a duty after leaving

Mii, emphasizing that “[t]he vast majority of the misconduct

complained of by Mii and Alan occurred while Glenn was a . . .

member of . . . Mii . . . , not after his resignation.”27

Because Alan has failed to identify any basis for Glenn’s

continuing duties to Mii (or Alan) following Glenn’s resignation

from the company, Glenn is entitled to summary judgment on the

claims that he breached his fiduciary duty to Mii (or Alan) in

his post-resignation dealings with Lovejoy, as well as Alan’s

claim for a constructive trust based on Glenn’s misappropriation

of the Lovejoy relationship.

Furthermore, even i f , after withdrawing from Mii, Glenn

retained some duty to keep away from its ongoing customer

relationships, he did not breach that duty. It is undisputed

that, after Glenn had withdrawn--but before he had any further

dealings with Lovejoy--Mii abandoned its relationship with

Lovejoy when Alan announced that Mii “could not make the press

work, was not going to continue trying, and lacked funding to do

so” and, for that matter, stopped returning Lovejoy’s e-mails and

27 The ellipses reflect omissions of Alan’s reference to Glenn’s role as an officer and shareholder of Materials which are immaterial because, again, Materials is not a party here.

69 calls. See Part II.A.6, supra. Of course, “[w]hen a corporation

is unable to avail itself of an opportunity, its employee,

officer or director is free to exploit it.” Energy Resources

Corp. v . Porter, 438 N.E.2d 3 9 1 , 394 (Mass. App. C t . 1982); see

also, e.g., 3 William Meade Fletcher, Fletcher Cyclopedia of the

Law of Corporations § 862.10, at 225 (rev. ed. 2010).

There is no reason to believe that this limitation on the

duties of former corporate officers or directors would not also

apply to the duties (if any) of the former manager or member of a

limited liability company. C f . Sherman v . FSC Realty LLC (In re

Brentwood Lexford Partners, L L C ) , 292 B.R. 255, 273 (Bkrtcy. N.D.

Tex. 2003) (finding that managers of LLC did not breach their

fiduciary duty to it by resigning and transferring some of its

business to a new entity after LLC’s lender had accelerated its

loan and filed suit to collect i t , essentially leaving the LLC

unable to do business). Mii’s renunciation of its contract with

Lovejoy, then, relieved Glenn of any duty he had to refrain from

dealing with Lovejoy for his own benefit as a consequence of his

former role as Mii’s manager or member--and, again, it is

undisputed that, following his resignation, Glenn had no further

dealings with Lovejoy until after Mii “had failed to meet [its]

obligations,” at least in Lovejoy’s eyes, see Part II.A.6, supra.

70 S o , even if Glenn had post-resignation duties to Mii, he did

not breach them. This entitles him to summary judgment not only

on counts 4 (the remaining claim for breach of fiduciary duty)

and 16 (the claim seeking a constructive trust over the Lovejoy

relationship) but also counts 8 and 9 (the claims for intentional

interference with the Lovejoy contract and intentional

interference with Mii’s prospective relationships with other

customers). To prevail on the intentional interference claims,

Alan must show, among other things, that Glenn’s improper actions

induced Lovejoy to breach its contract with Mii, or induced the

other customers not to do business with Mii. See, e.g., Montrone

v . Maxfield, 122 N.H. 7 2 4 , 726 (1982). As just discussed,

though, after Glenn resigned from Mii, he had no dealings with

Lovejoy until after Alan had told it that Mii “could not make the

press work, was not going to continue trying, and lacked funding

to do so,” and Lovejoy “considered the contract terminated.” See

Part II.A.6, supra.

Alan has not come forward with any evidence disputing this

chronology, which is fatal to his claim for intentional

interference with the Lovejoy contract. Nor has Alan come

forward with any evidence that Glenn had any contact whatsoever

with the other potential customers of Mii identified in the

amended counterclaim (here, again, Alan’s summary judgment

71 memorandum asks the court to “infer from the fact that Glenn does

not state under oath that he did not engage in discussions with

them that [he] caused them to decide not to do business with

Mii,” which is not a recognized method of proof in modern

judicial practice, see Part III.A.1.b, supra). Glenn is entitled

to summary judgment on Alan’s claims for intentional interference

with actual and prospective contractual relations (counts 8 - 9 ) .

D. “Wrongful dissociation”

Alan claims that Glenn’s withdrawal from Mii in February

2004 amounted to “wrongful dissociation” under the Limited

Liability Company Act because it was prohibited by the Mii

limited liability company agreement (count 1 5 ) . As Alan points

out, the Limited Liability Company Act provides that if a

member’s “withdrawal is a breach of the limited liability company

agreement . . . the company may recover from the withdrawing

member damages for breach of the limited liability company

agreement . . . , including the costs of any services the

withdrawn member was obligated to perform.” N.H. Rev. Stat. Ann.

§ 304-C:27, III. The Mii limited liability company agreement

expressly provides that “[n]o member has power to withdraw by

72 Despite this provision, Glenn moves for summary judgment on

the wrongful dissociation claim, arguing that (1) his withdrawal

was not “voluntary,” but compelled by Alan’s actions,

particularly his exercise of dominion over Mii’s assets pursuant

to the security agreement, see Part III.A.5, supra, and (2) in

any event, Alan did not suffer any damages as a result of Glenn’s

withdrawal from membership in Mii. The court need not reach the

first argument because the second one is correct.

Squarely presented with Glenn’s argument that his “wrongful

dissociation” did not cause Mii any damages, Alan has not

identified any. Importantly, while § 304-C:27, I I I , allows a

limited liability company to recover, as damages for a member’s

withdrawal in breach of the limited liability company agreement,

“the costs of any services the withdrawn member was obligated to

perform,” Alan does not point to any provision of the Mii

agreement that required Glenn to render any services to the

company by virtue of his membership in i t .

Thus, Alan’s otherwise unexplained statement in his sur-

reply that Glenn resigned “without fulfilling his contribution

obligations” does not make out a claim, for wrongful withdrawal

or otherwise, because the Mii limited liability company agreement

did not impose any such obligations. See Federalpha Steel LLC

Creditors’ Trust v . Fed. Pipe & Steel Co., 368 B.R. 679, 688

73 (N.D. Ill. 2006) (dismissing LLC’s claim against member for

failing “to contribute property or services” where the LLC

agreement imposed no such duty). Indeed, in characterizing the

parties’ arrangement, Alan himself states that Glenn received a

“co-equal” interest in Mii “without the necessity of having to

come up with any cash equity.” See Part II.A.1, supra.

Alan’s real complaint over Glenn’s withdrawal seems to be

that he “abandon[ed] the company in the middle of its problems

with Lovejoy.” See note 2 5 , supra. But there was nothing in the

limited liability company agreement--or, for that matter, any

other agreement--that obligated Glenn to continue serving as

Mii’s employee, as opposed to its member (a role that, as just

discussed, did not come with any obligations to render services

to the company). Nor did the limited liability company agreement

obligate Glenn to continue serving as Mii’s manager. See Part

II.A.1, supra. Thus, the only provision of the limited liability

agreement that Glenn violated by withdrawing was the prohibition

on voluntary withdrawal itself, and Alan has not identified any

damages that followed from that withdrawal. C f . Federalpha

Steel, 368 B.R. at 690 (recognizing claim for wrongful

dissociation based on member’s “ceasing participation in [the

LLC’s] management [and] ceasing honoring its duties and

obligations under the LLC agreement”). Glenn is therefore

74 entitled to summary judgment on Alan’s wrongful dissociation

claim (count 1 5 ) .

E. Relief for Glenn’s ERISA claim

Finally, Alan’s amended counterclaim includes three separate

counts seeking relief for having to respond to the claim for

equitable relief under ERISA that Glenn brought at the

commencement of this lawsuit, but has since voluntarily

dismissed. See Part II.B.2, supra. Alan asserts that this

claim, which alleged that Glenn faced potential liability because

Alan had refused to make certain filings necessary to terminate

the ERISA plans benefitting the employees of Materials and Mii,

“had no basis in law [or] fact,” because the plans’ third-party

administrator had agreed to make the necessary filings. Thus,

Alan argues, he is entitled to recover his resulting “attorneys’

fees, costs, and expenses” under New Hampshire law, including the

Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A:10, I

(count 1 8 ) , another statute providing for attorneys’ fees in

“contract or tort” actions, id. § 507:15 (count 1 9 ) , and the

common-law, specifically, the decision in Harkeem v . Adams, 117

N.H. 687 (1977) (count 2 0 ) .

These state laws have no application here. ERISA preempts

“any and all State laws insofar as they may now or hereafter

75 relate to any employee benefit plan,” 29 U.S.C. § 1144(a), and

“[t]he term ‘State law’ includes all laws, decisions, rules,

regulations or other State action having the effect of law, of

any State,” id. § 1144(c)(1). “A state law can be considered

‘related to’ a benefit plan--and thus preempted--‘even if the law

is not specifically designed to affect such plans, or the effect

is only indirect.’” Zipperer v . Raytheon Co., 493 F.3d 5 0 , 53

(1st Cir. 2007) (quoting Ingersoll-Rand C o . v . McClendon, 498

U.S. 133, 139 (1990) (further quotation marks omitted)). ERISA’s

preemptive force extends t o , among other state laws, those

establishing “causes of action that provide alternative

mechanisms to ERISA’s own enforcement scheme.” Id. (citing N.Y.

State Conference of Blue Cross & Blue Shield Plans v . Travelers

Ins. Co., 514 U.S. 645, 658-59 (1995)).

The state statutes and decisional law that Alan invokes to

recover against Glenn for bringing the ERISA claim fit

comfortably within this category. ERISA contains its own

provision for attorneys’ fees and costs, which states that “[i]n

any action under this subchapter by a participant, beneficiary,

or fiduciary, the court may in its discretion allow a reasonable

attorney’s fee and costs of action to either party.” 29 U.S.C.

§ 1132(g)(1) (parenthetical omitted). As an action by a

fiduciary under § 1132(a)(3)(B)(ii), Glenn’s ERISA claim here is

76 subject to this fees and costs provision--which, by its terms,

authorizes Alan to recover his expenses of successfully defending

against that claim (if such an award would be appropriate, an

issue the court need not and does not reach because Alan has not

invoked § 1132(g)(1) among the 21 counts of his counterclaim).

Because ERISA provides its own way for a party to collect

the fees and costs incurred in actions to enforce § 1132 of the

statute, Alan cannot invoke the “alternative mechanisms” of New

Hampshire law to that effect. Indeed, as this court has

previously observed, courts have “consistently held that ERISA

pre-empts requests under state law for attorney’s fees incurred

in litigating an ERISA action.” Geaghan v . Prudential Ins. C o .

of Am., 2009 DNH 1 7 8 , 8 (citing Moffett v . Halliburton Energy

Svcs., Inc., 291 F.3d 1227, 1237 n.6 (10th Cir. 2002) and S.F.

Culinary, Bartenders & Svc. Employees Welfare Fund v . Lucin, 76

F.3d 295, 297-99 (9th Cir. 1996)). Accordingly, Alan’s claims

under New Hampshire law to recover the “attorneys’ fees, costs,

and expenses” of defending Glenn’s ERISA claim--including § 358-A

(count 1 8 ) , § 507:15 (count 19) and the common-law doctrine

recognized in Harkeem v . Adams, supra (count 20)--are preempted.

Glenn is therefore entitled to summary judgment on those claims.

77 IV. Conclusion

For the reasons explained supra, Glenn’s motion for summary

judgment28 is GRANTED as to counts 1-16 and 18-20 of Alan’s

amended counterclaim. The remaining counts of the amended

counterclaim, counts 17 and 2 1 , are DISMISSED as moot per Alan’s

agreement, see Part II.B.1, supra. Glenn’s motion to dismiss29

the amended counterclaim is DENIED as moot.

This court has already disposed of counts 1-4 of Glenn’s

amended complaint. See Order of March 2 2 , 2010 (document n o .

70). This court abstains from exercising any jurisdiction it has

over Glenn’s sole remaining claim, count 5 , which alleges that

Mii fraudulently transferred $150,000 to Alan by directing that

Lovejoy make payment to Alan, rather than to Mii, for the

purchase of certain equipment in March 2005. The ownership of

those funds--currently held by a third-party law firm--is the

subject of an interpleader action pending, and about to go to

trial (if it has not already) in the Grafton County Superior

Court, Lawson & Persson, P.C. v . Beane, supra. Accordingly, as

this court recently ruled in rejecting jurisdiction over Glenn’s

attempt to execute a foreign judgment against those very same

28 Document n o . 8 4 . 29 Document n o . 8 1 .

78 funds, this court either lacks jurisdiction over them under the

doctrine of prior exclusive jurisdiction o r , if jurisdiction

exists, should abstain from exercising i t . Beane v . Mii Techs.,

L.L.C., 2012 DNH 023.

That resolves all of the 26 total counts in the amended

complaint and amended counterclaim. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph — N . Laplante la-- United States District Judge Dated: March 2 , 2012

cc: W.E. Whittington, Esq. William S . Gannon, Esq.