Campbell v. CGM

2017 DNH 004

• Court: District Court, D. New Hampshire
• Decided: January 9, 2017
• Docket: 15-cv-088-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Campbell

v. Civil No. 15-cv-088-JD Opinion No. 2017 DNH 004 CGM, LLC

O R D E R

Christopher Campbell, brings this action against his former

employer, CGM, LLC, asserting claims for breach of contract;

fraud, deceit and misrepresentation; violation of the New

Hampshire Consumer Protection Act, RSA Chapter 358-A; and unpaid

wages under RSA chapter 275. CGM brought counterclaims against

Campbell for breach of contract; conversion; violation of the

Computer Fraud and Abuse Act, 18 U.S.C. § 1030; tortious

interference with contract; punitive damages; and injunctive

relief. Both Campbell and CGM have filed motions for summary

judgment.

Standard of Review

Summary judgment is appropriate when the moving party

“shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party

and a material fact is one that could affect the outcome of the

case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.

2015). Reasonable inferences are taken in the light most

favorable to the nonmoving party, but unsupported speculation

and evidence that “is less than significantly probative” are not

sufficient to avoid summary judgment. Planadeball v. Wyndham

Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015)

(internal quotation marks omitted).

When considering cross motions for summary judgment, the

court must “determine whether either of the parties deserves

judgment as a matter of law on facts that are not disputed.”

Barnes v. Fleet Nat’l Bank, N.A., 370 F.3d 164, 170 (1st Cir.

2004) (internal quotation marks omitted). To do that, the court

views each motion separately, taking the facts in the light most

favorable to the nonmoving party and drawing inferences in the

nonmoving party’s favor. OneBeacon Am. Ins. Co. v. Commercial

Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir.

2012).

Evidentiary Issues

Campbell previously moved to strike the declaration of

Duane Szarek submitted by CGM in support of its objection to

Campbell’s motion for summary judgment. Campbell asserted that

the declaration impermissibly provided expert opinions when

2 Szarek had not been disclosed as an expert witness. The court

granted the motion to strike, and Szarek’s declaration is not

considered for purposes of the motions for summary judgment.

CGM challenges statements made by Campbell in his

affidavits as presenting “sham” affidavits. Specifically, CGM

states that Campbell’s statements in his affidavit dated June 1,

2015, that his company, Intellinet, had billings of

“approximately $250,000” and that the subject line on the check

to Campbell from CGM for $5,000 “indicated that this was the

bonus [he] had earned on annual earnings from 2001 – 2004” are

contradicted by deposition testimony given almost a year later

on April 25, 2016. CGM also asserts that most of Campbell’s

October 24, 2016, affidavit is a sham because Campbell “attempts

to contradict his clear deposition answers to unambiguous

questions without explanation.”

In the First Circuit, “‘[w]hen an interested witness has

given clear answers to unambiguous questions, he cannot create a

conflict and resist summary judgment with an affidavit that is

clearly contradictory’ without providing ‘a clear satisfactory

explanation of why the testimony is changed.’” Colburn v.

Parker Hanninfin/Nichols Portland Div., 429 F.3d 325, 332 (1st

Cir. 2005) (quoting Colantuoni v. Alfred Calcagni & Sons, Inc.,

44 F.3d 1, 4-5 (1st Cir. 1994)). That is, “a party opposing

summary judgment may not manufacture a dispute of fact by

3 contradicting his earlier sworn testimony without a satisfactory

explanation of why the testimony has changed.” Abreu-Guzman v.

Ford, 241 F.3d 69, 74 (1st Cir. 2001). “A subsequent affidavit

that merely explains, or amplifies upon, opaque testimony given

in a previous deposition is entitled to consideration in

opposition to a motion for summary judgment.” Gillen v. Fallon

Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir. 2002)

The sham affidavit rule does not apply to the challenged

statements from the June 1, 2015, affidavit. The affidavit was

prepared before Campbell was deposed, not after. The affidavit

was prepared in support of Campbell’s objection to CGM’s motion

to dismiss and was filed as additional support for Campbell’s

later motion for summary judgment. Therefore, the affidavit was

not prepared to manufacture a factual dispute for purposes of

opposing summary judgment.

In addition, the challenged statements do not clearly

contradict Campbell’s deposition testimony. The affidavit says

Intellinet had “billings of approximately $250,000” and

Campbell’s deposition testimony was that he did not know the

most Intellinet had ever grossed in a year. Further, Campbell

provided an adequate explanation of the differences in his Reply

Affidavit, dated October 24, 2016. The statement about the

bonus check is merely Campbell’s interpretation of the subject

line on the check.

4 The Reply Affidavit, dated October 24, 2016, provides an

explanation of Campbell’s statements about Intellinet’s revenue

and addresses statements made by CGM’s founders in their

declarations and deposition testimony. Because CGM asserts only

that “most” of Campbell’s affidavit is a sham, without

explaining what statements clearly contradict Campbell’s

deposition testimony, CGM has not provided a sufficient

explanation of the sham affidavit charge to permit review.

Therefore, none of the statements in Chris Campbell’s

affidavits are precluded as shams.

Background

The background information is summarized from the parties’

factual statements, with disputed facts noted as necessary.1

1 CGM’s memorandum in support of its motion for summary judgment is thirty-three pages long and its objection to Campbell’s motion is thirty-one pages long. Under the local rules in this district, “no memorandum in support of, or in opposition to, a dispositive motion shall exceed twenty-five (25) pages.” LR 7.1(a)(3). As CGM did not seek leave to file longer memoranda, its filings do not comply with the local rule. Chris’s memorandum in support of his motion for partial summary judgment does not have page numbers as is required by Local Rule 5.1(a). The court may impose a fine against counsel who have violated a local rule governing the form of filings, may strike the nonconforming filing, or may excuse a failure to comply “whenever justice so requires.” LR 1.3; LR 5.2. In this case, the court will excuse counsel’s failures to comply with the page limits and numbering with instruction to counsel that the local rules in this district shall be followed in the future or sanctions will be imposed.

5 This case involves claims between Christopher “Chris”

Campbell, the plaintiff, and CGM, LLC, which was founded and is

operated by Chris’s twin brother, Charles “Chuck” Campbell, and

Chuck’s business partner, Kevin Murphy. Hereafter, to avoid

confusion between the Campbells, the individuals will be

referred to by their first names as Chris, Chuck, and Kevin.

Chris is an electrical engineer who founded Intellinet,

Inc., a telecommunications business, that operated in

Massachusetts and New Hampshire. CGM was founded by Chuck,

Kevin, and a third partner who is no longer with the company,

and operates in Georgia. CGM originally provided consulting

services to telecommunications companies and now provides data

processing and software development compliance services to

telephone companies. Kevin is responsible for CGM’s

administrative and financial functions, and Chuck is responsible

for business development.

Intellinet did contract work for CGM in 2000. In early

2001, Chuck proposed that Chris become an employee of CGM.

Chris was interested in Chuck’s proposal. At the same time,

another company, CCG Consulting, was considering acquiring CGM.

On March 27, 2001, Chuck sent Chris an email with the

subject of “New Christo Proposal.” In the email, Chuck said

that the previous deal they had discussed was an “$180K annual

6 package plus 10% of EBITDA.”2 The new proposal was “$160K annual

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

that he was concerned about Chris’s monthly cash flow and the

EBITDA payout in the first year. He explained the differences

between the proposal if CGM were acquired by CCG and if it were

not acquired.3 In closing Chuck wrote: “If the deal with CCG

doesn’t go through, we’ll move right back to the previous deal.

Please give me a buzz after you’ve looked it over and let’s get

something inked.”

Chuck attached a spreadsheet to the email that is titled

“Christo CGM deal” and is dated “3/26/2001.” The spreadsheet

provided projections for four years of annual salary and “EO”

for each year. The projections were for “Previously Discussed

Christo Deal” and “Proposed Christo Deal w/ CGM Acquisition.”

Chuck stated: “Previous proposal was to give you 10% of the

companies [sic] bottom line earnings, going forward, plus $180K

package (salary plus bennies). We figured cost of bennies were

[sic] approximately 1K/mo and your monthly pretax check would be

$14K.” Chuck also provided a projected stock value and

explanation of the calculations. Chuck wrote: “We think we are

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

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

7 a better company with you on board and want to craft a deal that

works for all of us.”

In the course of the negotiations, Chris was given an

employment agreement. CGM represents that the employment

agreement originated with CCG Consulting and was then modified

by CGM and its attorneys. CGM also states that the employment

agreement was required by CCG as part of the proposed

acquisition that was being considered at that time. Chuck

testified during his deposition that there were different

versions of the employment agreement. The acquisition by CCG

did not go through.

Chris signed the employment agreement, which is dated May

24, 2001, but has an effective date of April 23, 2001.4 He

testified that he gave the signed original of the agreement to

Chuck. No one signed the agreement on behalf of CGM. Chris

began to work at CGM on June 1, 2001.

The copy of the employment agreement that Chris produced is

seven pages long and jumps from Section 8 to Section 13, which

is the last section. The agreement states that it is effective

4 CGM disputes that Chris signed the employment agreement at the time it is dated and returned it to CGM. CGM also represents that no other CGM employee has an employment agreement. Chuck accuses Chris of signing the agreement only after he brought suit against CGM. Alan Schrank, who works for CGM as a contractor, testified in his deposition that he does have a written contract with CGM although he does not have a copy of it.

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

agreement provides that Chris will be paid an annual salary of

$170,000 in monthly installments as the base salary. In

addition, Chris will “receive 10% of the annual earnings of

Company (prorated in year one), to be calculated on a calendar

year basis, and to be paid upon formal closure of the Company’s

[CGM’s] annual books.”

The agreement further provided that if the acquisition by

CCG went through, Chris’s annual salary would be reduced to

$150,000 and the bonus would be transferred “to an identical

percentage of Company’s stock in the acquiring entity.” It also

provided for a closing bonus after the acquisition. CGM agreed

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

agreement included provisions for termination, nondisclosure of

trade secrets and confidential information, non-solicitation and

non-recruitment covenants, CGM’s right to materials and the

return of materials, and compliance with policies and laws. The

last section, titled “Miscellaneous”, includes clauses for

severability, waiver, governing law, and merger.

Chris’s initial annual salary at CGM was $180,000. At the

end of 2001, no bonus was paid. Chris represents that he asked

about the bonus, and Chuck told him that CGM had no earnings so

no bonus could be paid. Chris asked to review CGM’s books, but

Chuck refused. The same thing happened in 2002 and 2003 with

9 Chuck representing that the company was operating without

earnings.

In 2005, Chris again asked about his bonus. CGM gave Chris

a check for $5,000. The subject line on the check said: “2001-

2004 (Thanks!).” Chris understood that the check was for his

bonuses for those years.5 Chuck prepared a spreadsheet to show

that CGM was not as profitable as Chris thought it was.

As the economy generally began to decline in 2006, CGM

experienced financial difficulties. For that reason, CGM

reduced salaries. On October 1, 2006, Chris’s salary was

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

changed. He understood that the reduction was temporary until

business improved.

Chuck told Chris that he and Kevin were making personal

financial contributions to CGM and were hoping that the

company’s finances would improve in the future. Chris

understood that everyone was making sacrifices for the good of

the company. Chuck said that Chris was the highest paid person

at CGM and that Chuck and Kevin were only being paid

approximately $86,000 each. Chris represents that CGM’s

financial documents, which he has reviewed as part of this suit,

5 In Chris’s objection to CGM’s motion for summary judgment, he states: “There is no dispute, however, that during those early years, CGM struggled financially.” Doc. 48 at 3.

10 show that CGM’s annual earnings were much greater than Chuck and

Kevin represented them to be.

In late 2008 or early 2009, Chris thought that CGM’s

financial status had improved and asked about returning his

salary to its former amount. Chuck and Kevin denied Chris’s

request on the ground that Chris was not maximizing his

potential at CGM. In the spring of 2009, Chuck told Chris that

he could increase his income by earning commissions. CGM

offered commissions to be paid on amounts received from Verizon

and FairPoint. During his deposition, Chris agreed that the

commissions were a change in his compensation.6 CGM paid Chris

commissions from 2009 through 2015, with some changes in the

commission plan.

CGM’s bookkeeper from 2009 to 2011 testified during her

deposition that Kevin told her not to pay Chris his commissions

unless he asked for them. When Chris asked for his commissions,

he was paid but received them late because of that restriction.

In June 2012, Kevin informed Chris during a meeting in

Georgia that he was an at-will employee. Chris responded that

he was not an at-will employee because he had an employment

agreement with CGM that provided for $170,000 in salary, health

6 No discussion occurred about the bonuses in connection with the commissions. Based on the record, the commissions appear to have been aimed at increasing Chris’s production and annual income, after the reduction in his salary.

11 insurance, and 10% of “annual CGM profit.” Kevin asked Chris to

produce the agreement. When Chris returned home, he found the

agreement in his files and mailed a copy of the employment

agreement to Kevin.7 Kevin and Chuck deny that they ever had an

employment agreement with Chris.

In late 2012, Chris asked Kevin for a raise. Chris’s

salary was raised to $140,000, but in exchange, his commission

percentage was reduced. Chris did not raise the issue of his

bonus during the compensation discussions.

By July of 2014, Chris was dissatisfied with CGM’s payment

of his commissions. In October of 2014, Chris met with Chuck

and Kevin in Georgia. Chuck and Kevin gave Chris options for

his compensation and employment at CGM, which involved

significant changes in both. A second meeting was scheduled for

November 17, 2014.

Chris states that he was having financial difficulties

because of the reduction in his salary and his family’s

unanticipated medical expenses and that he had “difficulty

coming to the conclusion that Kevin and Chuck were lying to me

about CGM’s finances.” Chris suffered a breakdown in November

7 During his deposition, Chris did not specifically remember the process of mailing the agreement but believes he did mail it because Kevin asked him to send it. Contemporaneous e-mails between Chris and Kevin document that Chris raised the issue of the employment agreement, that Kevin asked for a copy, and that Chris sent a copy to Kevin by regular mail on June 26, 2012.

12 of 2014. CGM approved a medical leave of absence for him. CGM

terminated Chris’s employment effective January 31, 2015.

After his termination, Chris kept the laptop computer that

CGM had provided to him, which he had used for both business and

personal purposes, and other items related to his work for CGM.

Chris understood that the laptop was his, provided as a benefit.8

On May 1, 2015, CGM asked Chris to return the laptop and other

CGM property. Chris returned other items but did not return the

laptop because it held personal confidential information.

Chris agreed to return the laptop after he removed his

personal information, but CGM rejected that proposal. Chris

then removed CGM’s software and data from the laptop and

proposed to keep the laptop with his personal information.9 CGM

was disappointed that Chris had removed files from the laptop

and did not agree to let him keep the laptop.

Chris and CGM decided to have a company in Boston, Evidox,

generate an index of the programs on the laptop. Chris contends

that the index was not helpful because it showed hundreds of

8 CGM contends that its employee handbook states that company computers belong to CGM and that personal information on the computers is subject to inspection. Chris states that the employee handbook was not effective until after Chris stopped working at CGM.

9 Chris states in his affidavit that he copied the software, source code, and other intellectual property CGM wanted to a thumb drive and provided it to CGM, through counsel. He also proposed to “wipe the hard drive” of all of CGM’s information.

13 thousands of programs without sufficient analysis. Chris

believed that additional analysis would be expensive and not

necessarily productive.

CGM contends that the Evidox index was extremely revealing

because it showed that Chris had opened dozens of CGM files

after his termination. Kevin asserts in his declaration that

Chris did not have permission to use the laptop after his

termination. He reviewed the index and identified thirty-eight

files that he believed Chris opened, created, or modified after

November of 2014. The files Kevin cites include employment

applications and downloads from corporate websites for companies

outside of New Hampshire. Kevin does not identify specific CGM

files in his declaration. The computer is being stored at

Evidox for a monthly fee.

CGM states in an interrogatory answer that it needs to have

Chris’s laptop to check and maintain software that was developed

or compiled by Chris because that computer is “native to the

software.” CGM also states that it had to redirect and educate

staff and hire external resources to “rewrite and work around

the issues caused by Plaintiff’s retention of CGM physical and

intellectual property,” which has cost and continues to cost

about $10,000 to $15,000 per month. One example CGM provides is

that an issue exists for a customer that cannot be resolved

without access to Chris’s laptop.

14 Chris contacted employees at FairPoint Communications,

Inc., a CGM customer, to maintain his relationship with

FairPoint after he was terminated by CGM. Chris’s counsel

contacted one of the employees at FairPoint about this lawsuit,

specifically seeking information related to CGM’s motion to

dismiss for lack of personal jurisdiction or to transfer the

case to Georgia. FairPoint’s attorney contacted CGM, told

Chris’s counsel he did not want the employee to be deposed, and

then told the parties to agree on an affidavit for that

employee, which they did. CGM has lost revenue from FairPoint

since Chris left.

For purposes of this suit, Chris retained Paul E.

Hendrickson, C.P.A., to calculate the bonus Chris should have

received from CGM under the employment agreement. Hendrickson

reviewed CGM’s financial records, including tax returns, and

calculated bonuses for each year from 2001 through 2014.

Discussion

Chris seeks summary judgment on his breach of contract

claim and on the counterclaims brought against him by CGM. CGM

moves for summary judgment in its favor on Chris’s claims

against it.

15 A. Breach of Contract

“The elements of a breach of contract claim in Georgia are:

(1) a valid contract; (2) material breach of its terms; and (3)

resultant damages to the party having the right to complain that

the contract has been broken.” Fed. Nat’l Mortg. Ass’n v.

Prowant, --- F.Supp.3d ---, 2016 WL 5243409, at *9 (N.D. Ga.

Sept. 21, 2016).10 Chris alleges that CGM breached Section 2,

paragraph 2, of the employment agreement by failing to pay him

bonuses. CGM brought a counterclaim for breach of contract

against Chris based on an implied contractual duty to deliver to

CGM all intellectual property that he developed or modified

during his employment and, alternatively, on Section 7 of the

employment agreement pertaining to the return of CGM’s property.

1. Chris’s Motion for Summary Judgment on his Breach of Contract Claim

In his breach of contract claim, Chris contends that CGM

breached the employment agreement he signed on May 24, 2001, by

failing to pay him bonuses as provided in Section 2, paragraph 2

of the employment agreement. Chris seeks summary judgment in

his favor on his breach of contract claim. CGM asserts that

The parties agree that the breach of contract claim and 10

counterclaim is governed by Georgia law, based on the choice-of- law provision in the contract. See Hobin v. Coldwell Banker Residential Affiliates, Inc., 144 N.H. 626, 628 (2000).

16 Chris cannot prove his breach of contract claim because there

was no employment agreement, he suffered no damages, the claim

is untimely, he has waived the claim, he agreed to modify the

employment agreement, and the claim is barred by the statute of

frauds.

a. Employment agreement

By statute, “[t]o constitute a valid contract, there must

be parties able to contract, a consideration moving to the

contract, the assent of the parties to the terms of the

contract, and a subject matter upon which the contract can

operate.” Ga. Code. Ann. § 13-3-1. “Under Georgia law, a

contract is enforceable if there is (a) a definite offer and (b)

complete acceptance (c) for consideration.” Lambert v. Austin

Indus., 544 F.3d 1192, 1195 (11th Cir. 2008); Valente v. Int’l

Follies, Inc., 2016 WL 3128528, at *2 (N.D. Ga. Jan. 6, 2016).

Chris alleges in his complaint that CGM breached Section 2,

paragraph 2 of the employment agreement by failing to pay him

bonuses.11 In his motion for summary judgment, Chris relies on

the email from Chuck dated March 27, 2001, the attached

11 Section 2, paragraph 2, of the employment agreement provides: “Bonus. While employed hereunder, Employee will also receive 10% of the annual earnings of Company (prorated in year one), to be calculated on a calendar year basis, and to be paid upon normal closure of the Company’s annual books.” The paragraph goes on to explain the alternative terms in the event CGM were acquired by CCG.

17 spreadsheet, and the employment agreement he signed on May 24,

2001, taken together to show that CGM owed him bonuses. 12 For

purposes of objecting to CGM’s motion for summary judgment,

Chris broadens his view of the employment agreement: “The

essential terms of the employment agreement between Christopher

Campbell and CGM is evidenced by three kind [sic] of documents:

emails from CGM to Christopher Campbell . . . , spreadsheets

from CGM projecting the expected bonuses to be paid annually if

Christopher Campbell joined the business . . ., and the

Employment Agreement between the parties . . . .” Doc. No. 48

at 3.

Multiple documents may be considered together as a contract

“as long as all the necessary terms are contained in signed

contemporaneous writings.” Bd. of Regents of Univ. Sys. Of Ga.

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

marks omitted). Here, however, Chris has not addressed the

requirements for showing that the multiple documents he cites

may be considered as a single contract. In addition, in the

complaint he specifically alleges breach of the written

employment agreement, not breach of a contract composed of

12 Chris does not limit CGM’s bonus obligation in the complaint to any specific period. In his motion for partial summary judgment, however, he appears to limit the breach of contract claim to bonuses for 2001 through 2004, totaling $373,000. See Doc. no. 45 at 5 (Chris’s memorandum does not have page numbers).

18 multiple documents. Because Chris cannot amend his complaint

through his motion for summary judgment, his breach of contract

claim is limited to CGM’s breach of Section 2, paragraph 2 of

the employment agreement that he signed on May 24, 2001.13

No representative signed the agreement on behalf of CGM.

Chuck denies that Chris signed the agreement and returned it to

CGM and denies that Chris had an employment agreement with CGM.

As presented in the summary judgment record, the circumstances

surrounding the employment agreement are disputed. Therefore,

Chris has not shown, based on undisputed facts, that the

employment agreement he signed, with the date of May 24, 2001,

is valid and enforceable against CGM. As a result, he is not

entitled to summary judgment in his favor on his breach of

contract claim.

b. CGM’s Defenses

Because Chris’s motion for summary judgment on his breach

of contract claim is denied due to material factual issues, the

13 In addition, as CGM points out, the written employment agreement includes a merger clause titled “Entire Agreement” which provides that the agreement is the “final expression of their agreement;” “is the complete and exclusive statement of the terms of their agreement, notwithstanding any representa- tions, statements, or agreements to the contrary heretofore made;” and “[t]his agreement supersedes any former agreements governing the same subject matter.” Therefore, to the extent the written employment agreement is enforceable, the prior emails cannot be considered as part of the agreement.

19 court does not reach CGM’s defenses. Those defenses are

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

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

CGM seeks summary judgment based on its defenses of the

statute of limitations, waiver, the statute of frauds, and the

merger clause in the agreement. Chris objects to the motion.

a. Statute of Limitations

CGM contends that Chris’s breach of contract claim is

governed by Georgia’s four-year limitations period because the

employment agreement was not signed by CGM. CGM asserts that

the four-year limitation period began in 2001 and 2002 and

expired long before Chris brought suit in 2015. Chris argues

that the six-year period applies and that the employment

agreement is a divisible installment contract.

i. Governing limitation period

“Under Georgia law, written contracts are subject to the

six-year statute of limitation imposed by OGCA § 9-3-24, whereas

oral/parol contracts are subject to the four-year statute of

limitation imposed by OCGA § 9-3-25.” Harris v. Baker, 652 S.

E. 2d 867, 868 (Ga. Ct. App. 2007). When an agreement is partly

20 in writing and partly oral or when essential terms must be

implied from oral agreements, for purposes of the statute of

limitations, the agreement is considered oral. Id. at 869.

The six-year limitation period applies to a written contract,

however, even when the defendant’s acceptance of the contract is

by performance rather than signing. Phoenix Recovery Gr., Inc.

v. Mehta, 663 S.E.2d 290, 291-92 (Ga. Ct. App. 2008); Hill v.

Am. Express, 657 S.E.2d 547, 548 (Ga. Ct. App. 2008).

In this case, Chris asserts that CGM breached Section 2,

Paragraph 2, of the written employment agreement.14 Although no

one signed the agreement on behalf of CGM, CGM arguably accepted

the terms of the agreement by performance when Chris began

working for CGM and was paid. Therefore, the six-year

limitation period governs the breach of contract claim in this

case if the employment agreement is proven to be an enforceable

contract.

ii. Application of limitation period

A cause of action for breach of contract accrues when the

breach occurs, not when the harm or result of the breach is

14 In contrast, the construction “agreement” in Harris consisted of an untitled and unsigned list of construction related items and prices with a total price and a set of construction blue prints. The court concluded in Harris that the documents did not provide a complete contract because they lacked essential terms, which were agreed to separately. Harris, 652 S.E.2d 869-70.

21 discovered. Dillon v. Reid, 717 S.E.2d 542, 547 (Ga. Ct. App.

2011). Therefore, the cause of action for breach of contract in

this case ordinarily would have accrued when the employment

contract was breached, which was more than six years before

Chris brought suit. Chris argues, however, that the employment

contract is a divisible installment contract so that the statute

of limitations runs from each failure to pay an annual bonus.

CGM contends that the employment agreement is not a divisible

installment contract and that the claim is time barred.

“When the statute of limitations begins running on a breach

of contract claim depends on whether the agreement is entire or

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

(Ga. 2002). If the contract is divisible, the statute of

limitations “‘will run separately as to each payment or

performance when it becomes due, either as an independent

obligation or as a return for an installment of the counter-

performance.’” Carswell v. Oconee Reg’l Med. Ctr., Inc., 605

S.E.2d 879, 881 (Ga. Ct. App. 2004) (quoting Piedmont Life Ins.

Co. v. Bell, 119 S.E. 2d 63, 72 (Ga. Ct. App. 1961)). Under

Georgia law, “an entire contract involves a single sum certain”

while “a contract is divisible if the quantity, service, or

thing is to be accepted by successive performances.” Wood v.

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

22 (11th Cir. 2016); see also Cahoon v. Kubatzky, 226 S.E.2d 467,

469 (Ga. Ct. App. 1976).

Under the employment agreement, the term of employment was

for one year, unless terminated in the first year, and then

automatically renewed in one year terms unless either party

provided notice of his intent to let the agreement expire. The

agreement was not terminated in the first year and presumably

automatically renewed thereafter. The agreement also provided

that the employee would receive annual bonuses of 10% of the

company’s annual earnings, to be calculated and paid on a

calendar year basis.

The terms of the employment agreement better fit the

description of a divisible contact. The agreement does not

provide for a single sum certain but instead promises to pay

annual bonuses that depend on the company’s annual earnings.

Therefore, the statute of limitations ran separately from each

year that the bonus was not paid.

iii. Statute of Frauds

The statute of frauds in Georgia provides that to be

binding “[a]ny agreement that is not to be performed within one

year from the making thereof . . . must be in writing and signed

by the party to be charged therewith or some person lawfully

authorized by him.” Ga. Code Ann. § 13-5-30. An exception

23 exists, however, “‘where there has been performance on one side,

accepted by the other in accordance with the contract.’”

Hemispherx Biopharma, Inc. v. Mid-South Cap., Inc., 690 F.3d

1216, 1226 (11th Cir. 2012) (quoting Ga. Code Ann. § 13-5-

31(2)). “The party seeking to enforce an unsigned agreement

under this exception, [] must show mutuality of action; that is,

that it performed one or more acts pursuant to and in

furtherance of the contract sought to be enforced, and the other

party accepted that performance pursuant to the agreement.”

Hemispherx, 690 F.3d at 1226.

In this case, Chris contends that CGM accepted his

performance under the terms of the written employment agreement.

CGM contends that there was never a written employment

agreement, that it did not agree to the terms of the written

agreement, and that Chris only signed a draft agreement for

purposes of this case.15 It is undisputed that Chris did start

working for CGM on June 1, 2001, and continued to work at CGM

until the end of 2014. Therefore, if there was an enforceable

written agreement that Chris signed in 2001, the statute of

frauds does not bar Chris’s breach of contract claim.

15 Chuck states in his declaration under penalty of perjury that he believes Chris signed the agreement just before filing suit. Doc. no. 44-5, ¶ 17.

24 iv. Waiver

CGM contends that Chris waived any breach of contract claim

for the unpaid bonuses by failing to assert promptly his right

to the unpaid bonuses. In support, CGM relies on Clower v.

Orthalliance, Inc., 337 F. Supp. 2d 1322, 1331 (N.D. Ga. 2004).

In Clower, the plaintiff alleged that the defendant had never

fully performed under a service contract. The court barred the

claim for breach of contract based on an election of remedies,

that is, because the plaintiff had elected to continue under the

contract, despite a lack of full performance by the defendant,

instead of bringing suit. Id. The court held that when the

defendant breaches the contract and the plaintiff knows that the

breach has occurred, the plaintiff must choose either to refuse

to perform and bring suit or accept the breach and continue to

perform under the contract. Id. at 1331-32.

In this case, however, it is at least disputed whether

Chris knew that CGM was breaching the employment contact before

his employment was terminated. Under the employment agreement,

CGM was required to pay bonuses of 10% of the company’s annual

earnings. Chuck and Kevin told Chris that the company did not

have annual earnings so no bonuses were due. In fact, they

reduced Chris’s salary on the ground that the company was

experiencing difficult financial circumstances. If Chris did

not know that CGM had breached the employment agreement, Chris

25 could not choose between the options identified in Clower. As a

result, CGM has not shown that Chris waived his claim through an

election of remedies.

v. Modification

CGM argues that the employment agreement was modified when

CGM offered and Chris accepted commissions. CGM argues that the

commission modification changed the compensation structure so

that it was no longer required to pay bonuses. Chris contends

that he never agreed to give up bonuses in exchange for

commissions.

The employment agreement provides that it can only be

modified “by a written instrument signed by each of the parties

hereto.” CGM provides no evidence of a written change to the

employment agreement. In addition, under the circumstances that

existed when CGM offered commissions, it appeared that the

commissions were intended to fill the gap between Chris’s

original salary and the lower salary he was being paid in 2009.

In any case, CGM offers no evidence that the commissions were

offered and accepted as compensation in lieu of annual bonuses.

3. CGM’s Breach of Contract Counterclaim

CGM alleges that Chris breached an implied contractual duty

to deliver to CGM all intellectual property that he developed or

26 modified during his employment. CGM also alleges that Chris

breached section 7 of the employment agreement.

In his motion for partial summary judgment, Chris contends

that CGM cannot show that he breached the employment agreement

by failing to return the laptop computer. In support, Chris

contends that he offered to return the computer if he could

remove personal information and that CGM cannot show damages.

Chris does not address that part of the claim brought under a

theory of an implied contract.

In its objection, CGM attempts to expand its counterclaim

to include other provisions in the employment agreement that

were not alleged in the counterclaim.16 CGM also asserts that

nominal damages may be recovered for breach of contract.

The employment agreement provides that records, software,

documents, and laptop computers, among other things, are the

property of CGM and must be returned to CGM upon termination of

employment. Factual disputes about the enforceability of the

agreement and about Chris’s retention and use of the computer

prevent summary judgment in Chris’s favor on CGM’s counterclaim

for breach of contract.

16 CGM cannot amend its counterclaim in its objection to summary judgment. See Martinez v. Petrenko, 2014 WL 12550380, at *2 (D.N.H. Feb. 10, 2014). In addition, to the extent it relies on the employment agreement for the claim, it must show that the agreement is valid and enforceable, a status that CGM disputes.

27 B. Chris’s Claim for Fraud/Deceit/Misrepresentation

CGM moves for summary judgment on Chris’s fraud claim on

the grounds that the claim is untimely, that the claim is barred

by the economic loss doctrine, and that Chris cannot prove the

elements of fraud. Chris objects, asserting that he can prove

fraud and that CGM’s defenses lack merit.

1. Fraud

To prove fraud, Chris must show that CGM made a

representation to him “with knowledge of its falsity or with

conscious indifference to its truth and with the intention of

causing [him] to rely on the representation.” 17 Tessier v.

Rockefeller, 162 N.H. 324, 332 (2011) (internal quotation marks

The parties cite New Hampshire law in support of their 17

motions addressing the tort claims and counterclaims, although Chris cites both Georgia law and New Hampshire law in his motion for summary judgment on the conversion claim. When a court sits in diversity jurisdiction, it generally applies the substantive law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). When it is necessary to make a choice among different states’ laws, the court applies the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496-97 (1941). A choice-of-law provision in a contract at issue in the case will not govern tort claims unless the provision expressly includes such claims. Coldwell Banker Real Estate, LLC v. Brian Moses Realty, Inc., 752 F. Supp. 2d 148, 164 (D.N.H. 2010). Here, neither party argues that Georgia law should be applied to the tort claims and counterclaims under the contract clause or under New Hampshire’s choice of law standard. Therefore, New Hampshire law governs the tort claims.

28 omitted). The plaintiff’s reliance must also have been

justifiable and must have caused pecuniary loss. Id.

Chris asserts, supported by his affidavits, that CGM

promised to pay him an annual bonus of 10% of annual earnings

and that he relied on the promise to accept and continue

employment at CGM. He further asserts that Chuck’s

representations from 2002 through 2005 that CGM did not have

annual earnings to pay him a bonus were misrepresentations of

CGM’s financial condition and annual earnings and that CGM has

regularly misrepresented its financial condition and annual

earnings. In addition, he contends that the misrepresentations

were made intentionally to keep him working for CGM without

paying him the promised bonuses. CGM asserts that Chris cannot

prove that any representations were made with knowledge of their

falsity and with the intent to cause his reliance. Even if

Chris could prove his fraud claim, it is barred by the economic

loss doctrine.

2. Economic Loss Doctrine

Under New Hampshire law, the economic loss doctrine

“operates generally to preclude contracting parties from

pursuing tort recovery for purely economic or commercial losses

associated with the contract relationship.” Wyle v. Lees, 162

N.H. 406, 410 (2011) (internal quotation marks omitted). Even

29 when a plaintiff cannot recover economic loss in a contract

action, the economic loss doctrine bars a tort action for

economic loss unless the claim falls within the exceptions for

circumstances when a defendant owes an independent duty to the

plaintiff and when misrepresentations precede formation of the

contract. Id.; Plourde Sand & Gravel v. JGI Eastern, Inc., 154

N.H. 791, 796-99 (2007).

Chris contends that the economic loss doctrine does not

apply to his fraud claim because Chuck, as his twin brother,

owed him an independent duty because of their special

relationship. The special relationship exception to the

economic loss doctrine is narrow and must arise from a

relationship that imposes an additional legal duty on the

defendant outside the terms of the contract. See Wyle, 162 N.H.

at 410; Plourde, 154 N.H. at 796. Chris has not identified what

duty his family relationship with Chuck imposed on CGM.18

Therefore, Chris’s fraud claim is barred by the economic

loss doctrine. As a result, it is not necessary to consider

CGM’s statute of limitations defense. CGM is entitled to

summary judgment on the fraud claim.

18 The family relationship between Chris and Chuck, alone, does not support the special relationship exception that is necessary to avoid the economic loss doctrine. Although brothers might hope for and even expect honest and straightforward treatment from each other, Chris has not shown that Chuck owed him a legal duty outside of the CGM contract.

30 C. Chris’s Consumer Protection Act (“CPA”) Claim

Chris alleges that CGM’s promise to pay him annual bonuses

of 10% of annual earnings to induce him to bring his business

and join CGM was false and deceptive in violation of the CPA,

New Hampshire RSA chapter 358-A. He further alleges that CGM’s

failure to pay the promised bonuses and its refusal to allow him

to review the company finances was also false and deceptive in

violation of the CPA. CGM moves for summary judgment on the

grounds that Chris cannot prove a claim under the CPA and the

claim is untimely.

1. Merits

The Consumer Protection Act, RSA 358-A, prohibits persons

from using “any unfair method of competition or any unfair or

deceptive act or practice in the conduct of any trade or

commerce within this state.” RSA 358-A:2. RSA 358-A:2 lists

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

prohibition. ACAS Acquisitions (Precitech) Inc. v. Hobert, 155

N.H. 381, 402 (2007). For non-listed actions to implicate the

Act, “the objectionable conduct must attain a level of rascality

that would raise any eyebrow of someone inured to the rough and

tumble of the world of commerce.” Id. CGM argues that its

31 relationship with Chris did not arise in the context of trade or

commerce.

To the extent Chris’s claim is that CGM did not fulfill the

promises it made to him under his employment agreement, he has

not shown a violation of the Act. The New Hampshire Supreme

Court has not decided whether the Consumer Protection Act

applies to employment disputes. Romano v. Site Acquisitions,

Inc., 2016 WL 50471, at *3 (D.N.H. Jan. 4, 2016). Another judge

in this district has determined that the New Hampshire Supreme

Court would conclude that the Act does not cover a claim based

on the breach of duties owed under an employment contract. Jon-

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

10, 2003). In addition, “the mere allegation of a breach of an

employment contract, or any ordinary contract, fails to state a

CPA claim.” Romano, 2016 WL 50471, at *3.

Chris contends, however, that CGM offered him bonuses to

induce him to close Intellinet and to bring his business to CGM.

Chuck’s emails and spreadsheet in March of 2001 support that

claim. He further contends that after he joined CGM with those

expectations, CGM refused to make the promised bonus payments,

reduced his salary, and misrepresented the financial condition

of the company. While an employment relationship is not subject

to the CPA, the business relationship in which Chris was induced

to close Intellinet and bring his business to CGM based on

32 promises of a certain salary and bonuses may be a transaction

between entities engaged in business and transacting in a

business context. See Ellis v. Candia Trailers & Snow Equip.,

Inc., 164 N.H. 457, 465-66 (2012).

While an ordinary breach of contract claim does not show a

violation of the Act, “a defendant who induces the plaintiff to

enter a contract based on a knowing misrepresentation of the

promisor’s intent to perform under the contract violates the

Consumer Protection Act.” Moulton v. Bane, 2016 WL 1091093, at

*12 (D.N.H. Mar. 21, 2016). In addition, “misrepresentations

made by a defendant in an ongoing effort to avoid performing

under an agreement, when the defendant did not intend to

perform, also violate the CPA.” Id. As such, material factual

disputes prevent summary judgment on Chris’s claim on the

merits.

2. Statute of Limitations

CGM asserts, based on cases from 1995 and 1992, that “CPA

claims are subject to a two-year statute of limitations” and

that the discovery rule and equitable tolling do not apply. The

CPA was amended in 1996, which extended the limitations period

to three years and incorporated a discovery rule provision.

Murray v. McNamara, 167 N.H. 474, 477 (2015). “To determine

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

33 from the time the plaintiffs ‘knew or reasonably should have

known’ of the alleged violation. If the transaction at issue

occurred more than three years before that time, then it is

exempt.” Id. at 478.

CGM did not present a statute of limitations defense under

the governing law. Therefore, that defense cannot support CGM’s

motion for summary judgment.

D. Chris’s Claim for Lost Wages under RSA Chapter 275

Chris claims the unpaid bonuses from CGM are unpaid wages

under RSA 275:42, III, and seeks an additional award under RSA

275:44, IV. CGM contends that Chris’s claim for unpaid wages is

barred because it is untimely and by the statute of frauds.

Chris agrees that his wages claim is governed by a three-

year statute of limitations. See RSA 508:4,I. He argues,

however, that the three-year limitation period runs from each

date when the wages were due. See Rosenzweig v. Morton, 144

N.H. 9, 12 (1999). He contends that the three-year period runs

after his bonus was not paid each year, so that his claims for

bonuses for the three years before he filed suit are within the

limitations period. CGM did not respond to Chris’s application

of the statute of limitations.

CGM also contends that Chris’s wage claim is barred by the

statute of frauds because he cannot enforce an unwritten promise

34 for bonuses. For the reasons explained above, a material

factual dispute remains as to whether there is a written

employment agreement in this case.19 Therefore, the statute of

frauds does not bar the claim for purposes of summary judgment.

E. CGM’s Counterclaim for Conversion

In addition to claiming that Chris breached the employment

agreement by retaining the laptop, CGM also asserts a claim of

conversion based on retention of the laptop. Chris moves for

summary judgment, asserting that CGM cannot prove the

counterclaim because he offered to return the laptop with the

reasonable condition that he be allowed to remove his personal

information. CGM asserts that the laptop and the programs and

software on the laptop are CGM’s property and that good faith is

not a defense to the tort of conversion.

To succeed on a claim of conversion, the plaintiff must

show that the defendant intentionally exercised dominion or

control over the plaintiff’s property and that the defendant's

actions seriously interfered with the plaintiff’s right to the

property. Muzzy v. Rockingham Cty. Tr. Co., 113 N.H. 520, 523

(1973). In determining the viability of a conversion claim, the

To the extent Chris attempts to avoid the statute of frauds 19

by raising a theory of promissory estoppel, that claim is not pleaded in the amended complaint. Chris cannot amend his complaint by raising a new claim in his objection to summary judgment.

35 court considers “the extent and duration of the exercise of

control over the goods, the intent to assert a right

inconsistent with the other party’s right of control, and good

faith.” Kingston 1686 House, Inc. v. B.S.P. Transp., Inc., 121

N.H. 93, 95 (1981); accord Sykes v. RBS Citizens, N.A., 2016 WL

738210, at *2 (D.N.H. Feb. 23, 2016); Moulton v. Bane, 2015 WL

7274061, at *10 (D.N.H. Nov. 16, 2015). Although “[e]arlier New

Hampshire cases held that the defendant’s good faith does not

preclude a finding of conversion, . . . [t]he court follows the

most recent conversion cases which include good faith as a

relevant factor.” Askenaizer v. Moate, 406 B.R. 444, 452 n.6

(D.N.H. 2009); see also In re BeaconVision Inc., 2009 WL 151594,

at *5 (Bankr. D.N.H. Jan. 20, 2009).20

20 CGM cites a decision from the BeaconVision case, which preceded In re BeaconVision Inc., 2009 WL 151594 (Bankr. D.N.H. Jan. 20, 2009), to support its view that good faith is not a defense to conversion. In re BeaconVision Inc., 340 B.R. 674, 679 (Bankr. D.N.H. 2006). In that decision, the court stated, relying on an older New Hampshire case, that “good faith does not rescue a party from liability,” but also stated that “the tortfeasor must have known that his conduct was substantially certain to result in injury.” Id. Contrary to CGM’s representation, the rule recognized in the later decision, In re BeaconVision Inc., 2009 WL 151594, at *5 (Bankr. D.N.H. Jan. 20, 2009), is the governing law. CGM also relies on Lumber Ins. Cos., Inc. v. Allen, 820 F. Supp. 33, 37 (D.N.H. 1993), in which the court considered an issue of insurance coverage for a claim of negligent trespass and conversion in the context of cutting trees on someone else’s property. The court relied on a comment to the Restatement (Second) of Torts, § 164, pertaining to intrusions onto land held by another, to determine that the term “accident” in the policy could include intentional conduct, such as trespass and

36 Significant factual disputes remain about whether Chris had

a good faith belief that he could retain the laptop and whether

his proposed solution of taking his personal information off of

the laptop before returning it was reasonable. Therefore, Chris

has not shown that he is entitled to summary judgment on CGM’s

conversion counterclaim.

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

CGM alleges that Chris was required to return the laptop to

CGM at the end of his employment there, that he did not return

the laptop, and that he accessed the laptop without

authorization and with the intent to defraud CGM and to obtain

CGM’s intellectual property from the laptop. CGM further

alleges that Chris caused damage, including financial damage to

CGM. Chris moves for summary judgment on CGM’s CFAA

counterclaim on the grounds that the laptop was not being used

in interstate commerce during the allegedly unauthorized use,

that he believed the laptop was a benefit of his employment at

CGM, that CGM has no proof that it suffered $5,000 in damages,

and that CGM caused its own loss by refusing to reach a

conversion. Id. That case is not persuasive here to show that Chris’s good faith or reasonable belief about his retention of the laptop, under the circumstances, is not a defense to CGM’s conversion claim.

37 reasonable accommodation for Chris’s private information on the

laptop.

Under CFAA, a private cause of action exists for damages

and injunctive relief due to a loss caused by a violation of 18

U.S.C. § 1030(a). See 18 U.S.C. § 1030(g). Section 1030(a)

provides a long list of prohibited computer conduct.

CGM does not identify which provision of § 1030(a) it

alleges Chris has violated. Assuming that CGM intended to

proceed under §§ 1030(a)(4) and (5)(C), Chris moves for summary

judgment on the grounds that CGM lacks evidence that it has

suffered a loss of at least $5,000 and that the laptop was used

in interstate commerce.

Section 1030(a)(4) pertains to a person who “knowingly and

with intent to defraud, accesses a protected computer without

authorization, or exceeds authorized access, and by means of

such conduct furthers the intended fraud and obtains anything of

value, unless the object of the fraud and the thing obtained

consists only of the use of the computer and the value of such

use is not more than $5,000 in any 1-year period.” Section

1030(a)(5)(c) pertains to a person who “intentionally accesses a

protected computer without authorization, and as a result of

such conduct, causes damage and loss.” A protected computer, in

the context of CGM, is one that is used in interstate commerce.

§ 1030(e)(2)(B).

38 CGM responds with evidence that that the laptop was used to

contact sites outside of New Hampshire to show that the laptop

was used in interstate commerce. CGM also provides evidence

that it has lost more than $5,000 because of Chris’s retention

of the computer.

Although Chris’s actions do not appear to have violated the

cited provisions of the Act, Chris did not contest the

counterclaim on the merits or challenge the materiality of CGM’s

evidence of damages. Instead, Chris challenges the credibility

of the evidence itself. Chris also argues that his children

used the laptop to access sites outside of New Hampshire but

does not show that their use of the laptop would not satisfy §

1030(e).

Summary judgment is not an appropriate vehicle for seeking

credibility determinations. In the absence of any developed

argument on the merits, CGM has shown a factual dispute that

precludes summary judgment.

G. GCM’s Counterclaim for Tortious Interference

CGM alleges that Chris contacted FairPoint with the intent

to injure CGM and interfered with CGM’s contractual relations

with FairPoint. Chris moves for summary judgment on the ground

that CGM cannot prove the claim based on an assumption that

Chris did something to interfere with its FairPoint business.

39 “To establish liability for intentional interference with

contractual relations, a plaintiff must show: (1) the plaintiff

had an economic relationship with a third party; (2) the

defendant knew of this relationship; (3) the defendant

intentionally and improperly interfered with this relationship;

and (4) the plaintiff was damaged by such interference.”

Tessier, 162 N.H. 324, 337 (2011). The intentional interference

must cause the third party not to perform under the contract.

Id. “Thus, where contractual obligations were performed, there

can be no claim for tortious interference with contractual

relations.” Id.

In its objection, CGM states that it is undisputed that it

has had a contractual relationship with FairPoint since 2009 and

that Chris contacted FairPoint employees after he was terminated

from CGM. Chris stated in his deposition that he contacted the

employees to maintain his relationships with them. Kevin states

that since Chris filed the lawsuit, Kevin has had much less

communication with Tim Burns at FairPoint.

That evidence is not enough to prove intentional

interference with contractual relations. CGM lacks any evidence

that FairPoint failed to perform under a contract with CGM

because of interference by Chris. Therefore, Chris is entitled

to summary judgment on that part of the counterclaim brought for

intentional interference with contractual relations.

40 To the extent CGM intended to bring a claim for tortious

interference with prospective business relations, neither the

allegations nor the evidence support that claim. “To state a

claim for tortious interference with a prospective contractual

relationship under New Hampshire law the plaintiff must show

that the defendant ‘induce[d] or otherwise purposely cause[d] a

third person not to . . . enter into or continue a business

relation with another’ and thereby caused harm to the other.”

Sarah’s Hat Boxes, L.L.C. v. Patch Me Up, L.L.C., 2013 WL

1563557, at *13 (D.N.H. Apr. 12, 2013) (quoting Bricker v.

Crane, 118 N.H. 249, 252 (1978)).

CGM has evidence that Chris maintained his relationships

with FairPoint employees but no evidence that he interfered with

CGM’s relationship with FairPoint. CGM has not presented an

affidavit or any other evidence from a FairPoint executive or

employee to show that because of Chris’s communications,

FairPoint no longer is doing business with CGM.

Instead, the evidence shows that FairPoint and its

president, Patrick McHugh, did not want to be involved in this

case. Therefore, any downturn in CGM’s relationship with CGM

appears to be the result of the lawsuit between Chris and CGM,

not because Chris purposefully caused FairPoint not to continue

to do business with CGM.

41 CGM failed to provide evidence to support its tortious

interference claim. As a result, Chris is entitled to summary

judgment on that claim.

H. CGM’s Counterclaim for Punitive Damages

In New Hampshire, “[n]o punitive damages shall be awarded

in any action, unless otherwise provided by statute.” RSA

507:16. “Under New Hampshire law, a claim for enhanced damages

is not a separate cause of action; it is a request for a

particular remedy.” Minion Inc. v. Burdin, 929 F. Supp. 521,

523 (D.N.H. 1996). Therefore, Chris is entitled to summary

judgment on CGM’s counterclaim for punitive damages.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

partial summary judgment (document no. 45) is granted as to the

defendant’s counterclaims for tortious interference, Count Four,

and punitive damages, Count Five, and is otherwise denied.

The defendant’s motion for summary judgment (document no.

44) is granted in part and denied in part. The six-year statute

of limitations applies to the plaintiff’s breach of contract

claim, Count I, and the employment agreement, if found to be an

enforceable contract, is a divisible installment contract. The

motion is granted as to the plaintiff’s fraud claim, Count Two,

and is otherwise denied.

42 Now that the motions for summary judgment have been

resolved, the claims and counterclaims remaining in the case

have been determined. Before the parties and the court spend

the considerable time and resources necessary to prepare for

trial, the parties are expected to use their best efforts to

resolve all or part of the remaining claims and counterclaims.

To that end, counsel shall carefully examine their claims,

counterclaims, and defenses to evaluate their viability, the

proof necessary to support them, and how they will present those

matters to a jury. In particular, counsel should review and

evaluate the factual and legal issues pertaining to (1) the

existence of an enforceable employment agreement between Chris

and CGM; (2) CGM’s counterclaims that also depend on a viable

employment agreement; (3) Chris’s retention and use of the

laptop; and (4) the timeliness of the claims. In examining

their cases, counsel should use every effort not to let personal

animosity, which appears to be evident in this case, stand in

the way of resolving issues that have stagnated, such as the

issue of the laptop.

In January of 2016, the parties anticipated participating

in mediation during the spring. No further mediation statement

has been filed. If they have not already done so, the court

expects the parties to participate in mediation before trial.

The parties shall file a joint mediation statement on or before

43 February 3, 2017, in which the parties state whether mediation

has been held or has been scheduled.

Due to the number of criminal cases currently scheduled for

the trial period beginning on February 22, 2017, the trial of

this case is rescheduled to the period beginning on March 7,

2017. The final pretrial conference will also be rescheduled

accordingly.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

January 9, 2017

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