Forrester v . Wheelabrator CV-10-154-JL 1/30/12
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Forrester Environmental Services, Inc. and Keith E . Forrester
v. Civil N o . 10-cv-154-JL Opinion N o . 2012 DNH 022 Wheelabrator Technologies, Inc.
SUMMARY ORDER
Defendant Wheelabrator Technologies, Inc. has moved for
reconsideration of this court’s order denying its motion for
summary judgment on Counts 1-3 of plaintiffs’ complaint.
Forrester Envtl. Servs., Inc. v . Wheelabrator Techs., Inc., 2011
DNH 212 (“Order”). Wheelabrator argues that the court made
multiple errors of law or fact in ruling that it was not entitled
to summary judgment on those claims.
The facts relevant to the motion for summary judgment are
set forth in the Order. Plaintiffs Keith Forrester and Forrester
Environmental Services, Inc. compete with Wheelabrator in the
arcane field of stabilizing toxic metals in incinerator ash.
They allege that Wheelabrator, after learning that a mutual
customer in Taiwan--Kobin--had abandoned Wheelabrator’s treatment
in favor of plaintiffs’, responded by repeatedly and falsely
telling Kobin that it owned the rights to plaintiffs’ treatment
and demanding that Kobin pay it royalties for using that treatment. Kobin reacted, plaintiffs say, by first stopping
regular purchases of chemicals from them, then terminating its
contract with them and resuming a relationship with Wheelabrator.
They assert claims for tortious interference with contract,
tortious interference with prospective advantage, unfair and
deceptive practices in violation of the Consumer Protection Act,
and misappropriation of trade secrets in violation of the Uniform
Trade Secrets Act.
In the Order, the court granted summary judgment to
Wheelabrator on the trade secret claim, concluding there was no
evidence Wheelabrator disclosed or used plaintiffs’ alleged
secret, or indeed, that it even knew the secret. Order at 29-35.
As to the other claims, however, the court denied the motion for
summary judgment, concluding that genuine issues of material fact
remained as to Wheelabrator’s statute-of-limitations defense,
including as to when plaintiffs first knew or should have known
of Wheelabrator’s alleged misconduct. Id. at 22-28. As fully
explained infra, defendants’ motion for reconsideration fails to
demonstrate any “manifest error of fact or law” in these rulings,
L.R. 7.2(e), and is therefore denied.
I. Statute of limitations
Wheelabrator first argues that the court “erred in its
application of New Hampshire’s statute of limitations, and in
2 particular, with respect to the New Hampshire ‘discovery rule’ as
set forth in [N.H. Rev. Stat. Ann. § ] 508:4, I.” Under the
statute of limitations, the plaintiffs’ claims accrued when they
“[d]iscovered, or in the exercise of reasonable diligence should
have discovered, the injury and its causal relationship to the
act or omission complained of.” N.H. Rev. Stat. Ann. § 508:4, I .
From that date, they had three years within which to file suit.
Id. In the Order, the court concluded that, although plaintiffs
knew or should have known of their injury--Kobin’s cessation of
purchases from them--more than three years before this action was
filed in February 2010, there was evidence creating a genuine
dispute of material fact as to whether they first learned of the
causal relationship between their injury and Wheelabrator’s
alleged misstatements within the three-year period preceding the
filing of this action. Order at 23-26.
Wheelabrator disagrees with that conclusion, relying upon
the New Hampshire Supreme Court’s holding that “a plaintiff need
not be certain of [the] causal connection” between the injury and
the defendant’s misconduct, and the “possibility that [such a
connection] existed will suffice to obviate the protections of
the discovery rule.” Beane v . Dana S . Beane & Co., P.C., 160
N.H. 7 0 8 , 713 (2010). Thus, Wheelabrator argues, because
Forrester knew of the possibility that Kobin had resumed business
3 with Wheelabrator by January 2007 at the latest--as evidenced by
a letter he wrote to Kobin that month expressing concern that
Kobin could be resuming the use of Wheelabrator’s treatment--he
cannot take advantage of the discovery rule as a matter of law.
This argument fails. For the statute of limitations to
begin running under Beane, the plaintiff must know of the
possibility “that its injury was proximately caused by conduct of
the defendant.” Id. But, viewing Forrester’s letter in the
light most favorable to plaintiffs, all it evinces is a suspicion
that Kobin had resumed business with Wheelabrator. It does not
necessarily evince, as Wheelabrator argues, that plaintiffs
suspected that Kobin’s cessation of business with them (or its
contemporaneous resumption of business with Wheelabrator) was
caused by Wheelabrator’s misconduct. See Order at 2 5 . As
discussed in the Order, that may be a permissible inference from
the letter. It may even be the most plausible inference. But it
is by no means inescapable. Id. at 24-25. When the record
permits competing inferences on a material factual issue,
choosing the “better” one is the role of the finder of fact at
trial, not the court on summary judgment.1 See, e.g., Montfort-
1 To promote the swift resolution of this issue, the court has scheduled an evidentiary hearing at which the parties will present evidence as to when plaintiffs discovered, or in the exercise of reasonable diligence should have discovered, Wheelabrator’s alleged misconduct. See Keshishian v . CMC
4 Rodriguez v . Rey-Hernandez, 504 F.3d 2 2 1 , 228-29 (1st Cir. 2007).
This court did not err, manifestly or otherwise, in concluding
that plaintiffs’ claims were not barred by the statute of
limitations as a matter of law.
II. Elements of plaintiffs’ claims
Wheelabrator next argues that the court “misapprehended the
elements of plaintiffs’ business tort claims.” It asserts that
the court “seems” to assume, in the Order, that plaintiffs’
claims turn on “whether Wheelabrator made ‘false’ statements of
its patent rights,” but the real question is “whether
Wheelabrator believed, in good faith, that its opinions were
valid.” Mot. for Recons. (document n o . 209) at 2-3 (citing Golan
v . Pingel Enter., Inc., 310 F.3d 1360 (Fed. Cir. 2002); and
Harris Wayside Furniture Co., Inc. v . Idearc Media Corp., N o . 06-
cv-392-JM, 2007 WL 1847313 (D.N.H. June 2 5 , 2007)).
This argument does not present a basis for the court to
revisit or revise its summary judgment ruling. As an initial
matter, Wheelabrator never raised this issue in any of the three
Radiologists, 142 N.H. 1 6 8 , 179-80 (1997) (application of the discovery rule is a question of fact to be decided by the court, and may be decided following an evidentiary hearing prior to trial). This procedure was settled on at an in-chambers conference on January 1 9 , 2012, at which Wheelabrator assented to the resolution of the statute of limitations issue in this manner. See document n o . 214.
5 memoranda it filed in support of its motion for summary judgment.
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Forrester v . Wheelabrator CV-10-154-JL 1/30/12
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Forrester Environmental Services, Inc. and Keith E . Forrester
v. Civil N o . 10-cv-154-JL Opinion N o . 2012 DNH 022 Wheelabrator Technologies, Inc.
SUMMARY ORDER
Defendant Wheelabrator Technologies, Inc. has moved for
reconsideration of this court’s order denying its motion for
summary judgment on Counts 1-3 of plaintiffs’ complaint.
Forrester Envtl. Servs., Inc. v . Wheelabrator Techs., Inc., 2011
DNH 212 (“Order”). Wheelabrator argues that the court made
multiple errors of law or fact in ruling that it was not entitled
to summary judgment on those claims.
The facts relevant to the motion for summary judgment are
set forth in the Order. Plaintiffs Keith Forrester and Forrester
Environmental Services, Inc. compete with Wheelabrator in the
arcane field of stabilizing toxic metals in incinerator ash.
They allege that Wheelabrator, after learning that a mutual
customer in Taiwan--Kobin--had abandoned Wheelabrator’s treatment
in favor of plaintiffs’, responded by repeatedly and falsely
telling Kobin that it owned the rights to plaintiffs’ treatment
and demanding that Kobin pay it royalties for using that treatment. Kobin reacted, plaintiffs say, by first stopping
regular purchases of chemicals from them, then terminating its
contract with them and resuming a relationship with Wheelabrator.
They assert claims for tortious interference with contract,
tortious interference with prospective advantage, unfair and
deceptive practices in violation of the Consumer Protection Act,
and misappropriation of trade secrets in violation of the Uniform
Trade Secrets Act.
In the Order, the court granted summary judgment to
Wheelabrator on the trade secret claim, concluding there was no
evidence Wheelabrator disclosed or used plaintiffs’ alleged
secret, or indeed, that it even knew the secret. Order at 29-35.
As to the other claims, however, the court denied the motion for
summary judgment, concluding that genuine issues of material fact
remained as to Wheelabrator’s statute-of-limitations defense,
including as to when plaintiffs first knew or should have known
of Wheelabrator’s alleged misconduct. Id. at 22-28. As fully
explained infra, defendants’ motion for reconsideration fails to
demonstrate any “manifest error of fact or law” in these rulings,
L.R. 7.2(e), and is therefore denied.
I. Statute of limitations
Wheelabrator first argues that the court “erred in its
application of New Hampshire’s statute of limitations, and in
2 particular, with respect to the New Hampshire ‘discovery rule’ as
set forth in [N.H. Rev. Stat. Ann. § ] 508:4, I.” Under the
statute of limitations, the plaintiffs’ claims accrued when they
“[d]iscovered, or in the exercise of reasonable diligence should
have discovered, the injury and its causal relationship to the
act or omission complained of.” N.H. Rev. Stat. Ann. § 508:4, I .
From that date, they had three years within which to file suit.
Id. In the Order, the court concluded that, although plaintiffs
knew or should have known of their injury--Kobin’s cessation of
purchases from them--more than three years before this action was
filed in February 2010, there was evidence creating a genuine
dispute of material fact as to whether they first learned of the
causal relationship between their injury and Wheelabrator’s
alleged misstatements within the three-year period preceding the
filing of this action. Order at 23-26.
Wheelabrator disagrees with that conclusion, relying upon
the New Hampshire Supreme Court’s holding that “a plaintiff need
not be certain of [the] causal connection” between the injury and
the defendant’s misconduct, and the “possibility that [such a
connection] existed will suffice to obviate the protections of
the discovery rule.” Beane v . Dana S . Beane & Co., P.C., 160
N.H. 7 0 8 , 713 (2010). Thus, Wheelabrator argues, because
Forrester knew of the possibility that Kobin had resumed business
3 with Wheelabrator by January 2007 at the latest--as evidenced by
a letter he wrote to Kobin that month expressing concern that
Kobin could be resuming the use of Wheelabrator’s treatment--he
cannot take advantage of the discovery rule as a matter of law.
This argument fails. For the statute of limitations to
begin running under Beane, the plaintiff must know of the
possibility “that its injury was proximately caused by conduct of
the defendant.” Id. But, viewing Forrester’s letter in the
light most favorable to plaintiffs, all it evinces is a suspicion
that Kobin had resumed business with Wheelabrator. It does not
necessarily evince, as Wheelabrator argues, that plaintiffs
suspected that Kobin’s cessation of business with them (or its
contemporaneous resumption of business with Wheelabrator) was
caused by Wheelabrator’s misconduct. See Order at 2 5 . As
discussed in the Order, that may be a permissible inference from
the letter. It may even be the most plausible inference. But it
is by no means inescapable. Id. at 24-25. When the record
permits competing inferences on a material factual issue,
choosing the “better” one is the role of the finder of fact at
trial, not the court on summary judgment.1 See, e.g., Montfort-
1 To promote the swift resolution of this issue, the court has scheduled an evidentiary hearing at which the parties will present evidence as to when plaintiffs discovered, or in the exercise of reasonable diligence should have discovered, Wheelabrator’s alleged misconduct. See Keshishian v . CMC
4 Rodriguez v . Rey-Hernandez, 504 F.3d 2 2 1 , 228-29 (1st Cir. 2007).
This court did not err, manifestly or otherwise, in concluding
that plaintiffs’ claims were not barred by the statute of
limitations as a matter of law.
II. Elements of plaintiffs’ claims
Wheelabrator next argues that the court “misapprehended the
elements of plaintiffs’ business tort claims.” It asserts that
the court “seems” to assume, in the Order, that plaintiffs’
claims turn on “whether Wheelabrator made ‘false’ statements of
its patent rights,” but the real question is “whether
Wheelabrator believed, in good faith, that its opinions were
valid.” Mot. for Recons. (document n o . 209) at 2-3 (citing Golan
v . Pingel Enter., Inc., 310 F.3d 1360 (Fed. Cir. 2002); and
Harris Wayside Furniture Co., Inc. v . Idearc Media Corp., N o . 06-
cv-392-JM, 2007 WL 1847313 (D.N.H. June 2 5 , 2007)).
This argument does not present a basis for the court to
revisit or revise its summary judgment ruling. As an initial
matter, Wheelabrator never raised this issue in any of the three
Radiologists, 142 N.H. 1 6 8 , 179-80 (1997) (application of the discovery rule is a question of fact to be decided by the court, and may be decided following an evidentiary hearing prior to trial). This procedure was settled on at an in-chambers conference on January 1 9 , 2012, at which Wheelabrator assented to the resolution of the statute of limitations issue in this manner. See document n o . 214.
5 memoranda it filed in support of its motion for summary judgment.
Those memoranda cited neither of the two cases Wheelabrator now
relies upon, Golan and Harris Wayside Furniture, nor did they
articulate the theory Wheelabrator now presents in support of its
motion for reconsideration. A motion for reconsideration should
not be used “to advance arguments that could and should have been
presented to the district court prior to judgment.” Skinner v .
Salem Sch. Dist., 718 F. Supp. 2d 186, 193 (D.N.H. 2010); see
also Global Naps, Inc. v . Verizon New Eng., Inc., 489 F.3d 1 3 ,
25-26 (1st Cir. 2007).
More to the point, the Order does not endorse the position
Wheelabrator ascribes to i t , i.e., that plaintiffs can succeed on
their claims merely by showing that Wheelabrator’s statements to
Kobin regarding its ownership of intellectual property were
false. Such a statement of the law appears nowhere in the Order,
and Wheelabrator itself does not argue that the Order requires
any alteration. Furthermore, Wheelabrator does not claim it
would be entitled to summary judgment even if the court adopted
its theory. To the contrary, it acknowledges that, even if the
court adopts its view of the law, it will be entitled to judgment
only “[i]f the jury believes” that it had a good-faith belief in
6 the truth of its statements.2 Wheelabrator’s motion for
reconsideration provides no basis for this court to reconsider
the ruling it actually made, i.e., that the evidence in the
summary judgment record does not entitle Wheelabrator to summary
judgment on Counts 1-3 of the operative complaint.
III. Causation
Wheelabrator finally argues that the court “erred in not
granting summary judgment on the facts, in that plaintiffs have
no competent evidence that any decision made by Kobin which
allegedly resulted in damage to plaintiffs resulted from Kobin’s
reasonable reliance on Wheelabrator’s statements.” This argument
is premised on the propositions that (a) to recover on their
claims, plaintiffs must come forth with evidence to show that
Kobin’s initial cessation of purchases in late 2006 was causally
related to Wheelabrator’s misconduct, and (b) plaintiffs have not
done s o . Neither proposition is correct.
First, if plaintiffs can show that, but for Wheelabrator’s
misconduct, Kobin would have resumed purchasing chemicals from
them, they can recover damages for the sales they would have made
2 To a neutral observer, Wheelabrator’s request for reconsideration of this point might therefore seem to be a sly attempt to bolster the other submissions to the court in which it has advanced this same argument (e.g., its pretrial statement and various motions in limine). Such an attempt would, of course, be improper in the context of a motion for reconsideration.
7 in the absence of the misstatements; it is not incumbent upon
them to show that Wheelabrator was the cause of Kobin’s original
decision to stop purchases. C f . Baker v . Dennis Brown Realty,
Inc., 121 N.H. 6 4 0 , 644 (1981) (under a tortious interference
theory, a defendant may be held liable where it “induced or
otherwise caused” a party “not to enter into a contract with the
plaintiff”). To this end, plaintiffs have proffered, among other
things, an August 2007 Kobin report, authenticated by a former
Kobin employee, that suggests that Kobin was contemplating the
purchase of chemicals from plaintiffs in the future, but due to
Wheelabrator’s alleged fraud, believed it could not do so and
therefore terminated its existing contract with plaintiffs.
While Kobin resumed purchasing chemicals from plaintiffs another
six months later (at what plaintiffs contend is a substantially
lower profit margin), plaintiffs may nonetheless be entitled to
recover damages for their lost sales in the interim.
Second, plaintiffs have in fact come forward with evidence
establishing that Kobin’s decision to stop purchasing chemicals
in 2006 was caused by Wheelabrator’s misconduct. Kobin’s August
2007 report, when taken in conjunction with other evidence
summarized in the Order, could lead a reasonable trier of fact to
find that Kobin’s decision to enter into a new contract with
Wheelabrator in November 2006--and concurrent cessation of
8 chemical purchases from plaintiffs--was the direct and proximate
result of Wheelabrator’s deliberate and fraudulent claim to
ownership of the methods developed by plaintiffs. It is true
that this evidence is hardly overwhelming, and is largely
circumstantial, but that fact alone does not entitle Wheelabrator
to summary judgment. See, e.g., Montfort-Rodriguez v . Rey-
Hernandez, 504 F.3d 2 2 1 , 228-29 (1st Cir. 2007) (overruling entry
of summary judgment for defendants; although plaintiff’s evidence
was “circumstantial” and “thin,” the evidence “point[ed] in
different directions” and “[s]ummary judgment cannot be
predicated on so vacillatory a record”). Wheelabrator’s motion
for reconsideration of the court’s summary judgment ruling,
insofar as it found a genuine issue as to causation, is denied.
IV. Conclusion
For the reasons set forth above, Wheelabrator’s motion for
reconsideration3 is DENIED.
3 Document n o . 209.
9 SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: January 3 0 , 2012
cc: Erik Graham Moskowitz, Esq. Michael J. Markoff, Esq. Sibley P. Reppert, Esq. Steven E . Grill, Esq. Jonathan M . Shirley, Esq.