Fuller Ford v. Ford Motor et al.

2001 DNH 144

• Court: District Court, D. New Hampshire
• Decided: August 6, 2001
• Docket: CV-00-530-B
• Status: Published

Opinion

Fuller Ford v. Ford Motor et al. CV-00-530-B 08/06/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Fuller Ford, Inc., et al.

v. Civil No. 00-530-B Opinion No. 2001 DNH 144 Ford Motor Company and Ford Motor Credit Corporation

MEMORANDUM AND ORDER

Fuller Ford, Inc., Frederick J. Fuller, and Sharen J. Fuller

bring this suit, alleging that Ford Motor Company ("Ford") and

Ford Motor Credit Corporation ("FMCC") breached their contractual

obligations when they failed to relocate, and provide financial

assistance to. Fuller Ford's retail automobile dealership.

Plaintiffs also assert tort claims based on the same conduct, as

well as claims under the Automobile Dealer Day in Court Act, 15

U.S.C. § 1221 et sea., the New Hampshire Motor Vehicle Franchise

Act, N.H. Rev. Stat. Ann. § 357-C:l et se q ., and the New

Hampshire Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A:l

et seq. I have before me Ford's motion to dismiss, (Doc. No.

11), and FMCC's motion to dismiss, (Doc. No. 12). For the reasons set forth below, I deny in part and grant in part Ford's

motion to dismiss, I deny FMCC's motion to dismiss, and I order

plaintiffs to file an amended complaint.

I. BACKGROUND1

Frederick Fuller is the sole shareholder of Fuller Ford,

Inc. In 1993, Fuller Ford acquired a Ford dealership in Bristol,

New Hampshire. Fuller Ford sold and leased Ford automobiles, and

sold Ford parts, pursuant to a Dealer Sales and Service Agreement

with Ford (the "Dealer Agreement").

Despite their successful business relationship, both Ford

and Fuller Ford recognized from the start that the Bristol site

was undesirable. First, the franchise was located in a small

town, far from any major highway, and was therefore difficult for

customers to access. Second, the facility itself was deficient

in many respects, for example: (1) it did not comply with the

Americans with Disabilities Act; and (2) the parking lot, parts

department, and service areas were too small. Because upgrading

1 The background facts set forth in this Memorandum and Order are taken from plaintiffs' First Amended Complaint ("Cplt."), (Doc. No. 8).

- 2 - the facilities would be expensive and would not cure the problems

inherent in the location of the dealership, the parties soon

began to explore the possibility of moving the dealership to a

new location prior to the scheduled expiration of Fuller Ford's

lease in April 1999.

A. The Proposed New Hampton Relocation

In April 1996, Fuller Ford, with the assistance of Ford,

located a parcel of land in New Hampton that it thought would

make a good location for its franchise. Ford's representatives

inspected the proposed site and agreed that it was ideal. Fuller

Ford purchased the property for $184,400.

Under the terms of the Dealer Agreement, Fuller Ford could

not relocate its dealership without the prior written consent of

Ford. Jeff Friedstedt, Ford's Regional Sales Manager, told

Frederick Fuller that Ford would approve a relocation to the New

Hampton site and that he should begin preparations for the move.

Although Mr. Fuller had kept the purchase of the New Hampton site

a secret, a representative of Ford told Fuller Ford's employees

that the relocation would occur.

Frederick Fuller formally advised Ford of the proposed

relocation by letter dated June 28, 1996. Ford's regional

- 3 - representative recommended that Ford approve the relocation.

Despite the assurances of Ford's regional representatives that

this was a mere formality, and that Ford would support the

relocation. Ford disapproved of the relocation by letter dated

September 13, 1996.

The letter stated, in relevant part, as follows:

We regret that we cannot support relocation to this site due primarily to its not being suitably situated to provide convenient sales and service for the majority of our customers in the Bristol, NH market area . . . We support your efforts to improve sales and service capacity and encourage you to consider other alternatives which will satisfy the requirements of Ford customers in your market area.

On September 30, 1996, Frederick Fuller met with Ford's

regional representatives to discuss Ford's decision to deny his

relocation request. Although Mr. Fuller raised the possibility

of suing Ford over its decision, he instead decided to appeal

that decision to the Ford Dealer Policy Board (the "Policy

Board"). The Policy Board heard his appeal on December 17, 1996.

B. The Proposed Plymouth Relocation

On February 26, 1997, Len Alaimo of the Policy Board called

Frederick Fuller to advise him informally that the Policy Board

- 4 - was disinclined to reverse Ford's decision. Alaimo indicated,

however, that Ford would support a relocation to Plymouth, New

Hampshire. The Policy Board never rendered a formal ruling on

Fuller Ford's appeal.

Ford's regional office advised Fuller Ford that a former

Chevrolet store in Plymouth was being auctioned off and that this

would be a good relocation site. Fuller Ford acquired the site

at auction for $750,000, plus $100,000 in back taxes, and $50,000

for equipment and furnishings. Fuller Ford advised Ford that it

wished to relocate to the new site soon and that it needed a

prompt answer because of the expense of simultaneously owning

both the Plymouth and New Hampton sites, while also maintaining

the Bristol dealership.

Ford's regional representatives recommended to Ford that it

approve the relocation to Plymouth. They recognized that a

successful relocation would solve their "dealer relations

problem" with Fuller Ford and might prevent litigation over the

failed New Hampton relocation. In a memorandum to Ford, a

regional representative emphasized that the Plymouth relocation

should be approved because Ford "had encouraged Mr. Fuller to

develop land he already owned in the Plymouth area as a possible

- 5 - location or seek out other possible sites in that town." In

order to accomplish the relocation. Ford needed to remove

Plymouth from the sales territory of another Ford dealer,

Meredith Motors. Ford assured Fuller Ford that this would not be

a problem and that no dealers would protest the realignment.

In November and December of 1997, Ford approved the

realignment, the relocation of Fuller Ford to Plymouth, and the

payment of $100,000 to Fuller Ford to assist it in opening the

new facility. Fuller Ford hoped to begin operating from the

Plymouth site on or after February 28, 1998.

In February 1998, Ford notified Meredith Motors, and other

dealers in the Plymouth area, of the realignment and relocation.

Meredith Motors filed a protest with the New Hampshire Motor

Vehicle Industry Board (the "Motor Vehicle Board"), claiming that

Ford had removed Plymouth from its sales territory solely to

facilitate the relocation of Fuller Ford, in the hopes of

avoiding a lawsuit over the failed New Hampton relocation.

Therefore, Meredith Motors claimed. Ford lacked "good cause" to

modify its sales territory and relocate Fuller Ford to Plymouth,

as is required by the Motor Vehicle Franchise Act, N.H. Rev.

Stat. Ann. § 357-C:9.

- 6 - Ford sought a declaratory judgement in this court that its

attempt to alter Meredith Motors' sales territory and relocate

Fuller Ford was permissible. On August 24, 2000, I granted

Meredith Motors' motion for summary judgement. See Ford Motor

Co. v. Meredith Motor Co., 200 0 DNH 18 6 (Aug. 24, 2 000); see also

Ford Motor Co. v. Meredith Motor Co., 200 0 DNH 187 (Aug. 24,

2000) (denying Ford's motion to dismiss Meredith Motors'

counterclaims).

On August 16, 2000, the Motor Vehicle Board found that Ford

lacked good cause to relocate Fuller Ford to Plymouth. The Motor

Vehicle Board stated that:

Ford's primary reason for relocating Fuller to Plymouth was to avoid possible bad will, requests for financial assistance, or a lawsuit resulting from any injuries Fuller experienced after being denied permission to relocate to New [Hampton]. Ford seeks this result without regard to any harm resulting to [Meredith Motors], and without attempting meaningfully to negotiate a mutually acceptable solution with [Meredith Motors].

Due to the length of the Motor Vehicle Board's deliberations

and the uncertain outcome. Fuller Ford renewed its lease in

Bristol for one year. However, it struggled to maintain its

Bristol operations while carrying the costs of the Plymouth and

- 7 - New Hampton properties.

In December 1999, FMCC, without notice, terminated Fuller

Ford's line of credit, which Fuller Ford needed to purchase new

vehicle inventory. FMCC based its decision on Fuller Ford's

alleged failure to make timely payments. Fuller Ford wrote to

Ford protesting FMCC's actions, but FMCC declined to change its

decision. By letter dated December 30, 1999, Fuller Ford advised

FMCC that it had "temporarily suspended" the sale and service of

Ford vehicles because of FMCC's suspension of its line of credit.

Fuller Ford continued to operate until March 31, 2000, selling

only used cars.

Fuller Ford, Frederick Fuller, and Sharen Fuller initiated

this litigation against Ford and FMCC on November 13, 2000.2

II. STANDARD OF REVIEW

A motion to dismiss based on Fed. R. Civ. P. 12( b ) (6)

requires the court to accept the well-pleaded facts of the

complaint as true and draw all reasonable inferences in favor of

the plaintiff. See Avbar v. Crispin-Reves, 118 F.3d 10, 13 (1st

2 Sharen Fuller, the wife of Frederick Fuller, owns an interest in the New Hampton and Plymouth sites. Cir. 1997); Washington Legal Found, v. Massachusetts Bar Found.,

993 F.2d 962, 971 (1st Cir. 1993). I may dismiss the complaint

only if, when viewed in this manner, it appears beyond doubt that

the plaintiff can prove no set of facts that would entitle her to

relief. See Goolev v. Mobil Oil Corp., 851 F.2d 513, 514 (1st

Cir. 1988) (internal citation omitted).

The threshold for stating a claim under the federal rules

"may be low, but it is real." Id. While I must construe all

well-pleaded facts in the plaintiff's favor, I need not accept a

plaintiff's "unsupported conclusions or interpretations of law."

Washington Legal Found., 993 F.2d at 971.

I apply this standard in reviewing defendants' motions to

dismiss.

Ill. DISCUSSION

Plaintiffs contend that Ford made a number of

misrepresentations with regard to the proposed relocation of

Fuller Ford's franchise to New Hampton and, ultimately, to

Plymouth. Based on these alleged misrepresentations, plaintiffs

assert claims against Ford for: (1) breach of contract; (2)

breach of the implied covenant of good faith and fair dealing;

- 9 - (3) violation of the Automobile Dealer Day in Court Act

("ADDCA"); (4) violation of the Motor Vehicle Franchise Act; (5)

violation of the Consumer Protection Act; and (6) fraud. In

addition, plaintiffs assert claims against FMCC for breach of

contract and breach of the implied covenant of good faith and

fair dealing.

_____ Ford argues that all claims against it relating to Fuller

Ford's proposed relocation to New Hampton are barred by the

relevant statutes of limitation. Ford also moves to dismiss most

of the remaining claims against it for failure to state a claim

upon which relief can be granted.3 FMCC moves to dismiss both

claims against it.

Because plaintiffs' allegations of fraud lie at the heart of

this litigation, I begin by addressing the sufficiency of those

allegations.

3 In Count IV of their amended complaint, plaintiffs allege that Ford violated Section 357-C:3, I of the Motor Vehicle Franchise Act and Section 358-A:2 of the Consumer Protection Act. See Cplt. 104-108. Ford does not move to dismiss plaintiffs' Consumer Protection Act claims. But see Colonial Imports Corp. v. Volvo Cars of North Am., Inc., 2001 DNH 008, 24-28 (Jan. 9, 2001) (holding that claims between motor vehicle dealers and manufacturers are not actionable under the Consumer Protection Act) .

- 10 - A. Fraud

Plaintiffs assert three fraud claims against Ford. Cplt.

130-34. As noted above, the allegations of fraud that underlie

these three claims also form the basis of plaintiffs' other

common law and statutory claims against Ford. Ford argues that

plaintiffs have failed to plead fraud with the requisite

particularity.

1. Rule 9 (b)

Federal Rule of Civil Procedure 9 (b) requires that "the

circumstances constituting fraud . . . shall be stated with

particularity." "Mere allegations of fraud" will not satisfy the

particularity requirement of Rule 9 (b). Doyle v. Hasbro, Inc.,

103 F.3d 186, 194 (1st Cir. 1996) (internal quotation marks and

citation omitted). The rule requires a plaintiff to specify the

identity of the person who made the allegedly fraudulent

representation, and to specify the time, place, and content of

the representation. See Ahmed v. Rosenblatt, 118 F.3d 886, 889

(1st Cir. 1997); Doyle, 103 F.3d at 194; see generally James Wm.

Moore, et a l ., 2 Moore's Federal Practice § 9.03[1][b] (3d ed.

2001) ("[T]he reference to 'circumstances constituting fraud'

- 11 - usually requires the claimant to allege at a minimum the identity

of the person who made the fraudulent statement, the time, place,

and content of the misrepresentation, the resulting injury, and

the method by which the representation was communicated.").

In their first fraud claim, plaintiffs contend that Ford

misrepresented that it would approve the relocation of Fuller

Ford's franchise to New Hampton. Specifically, plaintiffs allege

that: (1) on May 29, 1996, an unnamed representative of Ford,

while at the dealership, told Fuller Ford's employees that the

relocation to New Hampton would occur, Cplt. 5 30; (2) at an

unspecified time and place, Jeff Friedstedt, Ford's Regional

Sales Manager, told Fred Fuller that the relocation would be

approved, i d . SI 32; and (3) at an unspecified time and place, one

or more unnamed Ford employees assured plaintiffs that the

relocation request would be approved, i d . SISI 37, 39; see also i d .

SISI 34, 35, 132 (alleging that plaintiffs relied on Ford's

misrepresentations to their detriment). These allegations fail

to satisfy the requirements of Rule 9 (b) because they do not

each: (1) identify the person who made the allegedly fraudulent

representation; and (2) specify the time, place, and content of

the representation. See Ahmed, 118 F.3d at 889.

- 12 - In their remaining fraud claims, plaintiffs contend that

Ford, in the hope of preventing and/or delaying plaintiffs from

suing Ford over the failed New Hampton relocation, made a number

of misrepresentations with regard to the proposed relocation of

Fuller Ford's franchise to Plymouth. See, e.g., Cplt. 41, 43,

53, 56. While some of plaintiffs allegations satisfy the

requirements of Rule 9(b), see i d . 55 45, 58, others do not.

Specifically, plaintiffs allege that: (1) at an unspecified

time and place, an unnamed Ford employee advised Frederick Fuller

about the availability of the Plymouth site and encouraged him to

purchase and develop this site, i d . 5 47; and (2) on or about

November 12, 1997, at an unspecified place, an unnamed Ford

employee assured Fuller Ford that other dealers in the Plymouth

area would not protest the relocation, even though Ford knew that

a protest was likely, i d . 5 56; see also i d . 55 58, 65-70

(alleging that Ford knew that Meredith Motors would protest the

relocation). These allegations fail to satisfy the requirements

of Rule 9(b) because they do not each: (1) identify the person

who made the allegedly fraudulent representation; and (2) specify

the time, place, and content of the representation. See Ahmed,

118 F .3d at 889.

- 13 - Because plaintiffs have failed to plead fraud with the

particularity required by Rule 9 (b), I order them to amend their

complaint so as to identify the person who made each allegedly

fraudulent representation and to specify the time, place, and

content of each representation. Plaintiffs shall file their

amended complaint within thirty days of the issuance of this

Memorandum and Order.4

B. Statutes of Limitation - The New Hampton Claims

Ford argues that plaintiffs' New Hampton-related claims

accrued on September 13, 1996, the day Ford denied Fuller Ford's

request to relocate to New Hampton. See Cplt. 5 39. Because

Plaintiffs did not initiate this litigation until November 13,

4 Because I order plaintiffs to file an amended complaint, I need not address Ford's argument that plaintiffs' fraud claims must be dismissed because they are based on statements of opinion and/or on predictions. I note, however, that the New Hampshire Supreme Court has held that a plaintiff may state a fraud claim based on a "false statement as to what a person thinks . . . [or] knows in respect to a particular matter." Lampesis v. Comolli, 101 N.H. 279, 283 (1958) (internal quotation marks and citations omitted); see also Restatement (Second) of Torts § 525 cmts. d, f ("a statement that is in form a prediction or promise as to the future course of events may justifiably be interpreted as a statement that the maker knows of nothing which will make the fulfillment of his prediction or promise impossible or improbable.").

- 14 - 2000, Ford contends that those claims are barred by the relevant

statutes of limitation.5 See 15 U.S.C. § 1223 (three year

statute of limitations governing ADDCA claims); N.H. Rev. Stat.

Ann. §§ 357-C:13 (four year statute of limitations governing

Motor Vehicle Franchise Act claims), 358-A:3, IV-a (three year

statute of limitations governing Consumer Protection Act claims),

508:4, I (three year statute of limitations governing common law

claims).

Because Ford moves to dismiss based on an affirmative

defense, I may grant dismissal only if the "facts establishing

the defense [are] clear on the face of the plaintiff[s]'

pleadings." Blackstone Realty LLC v. Federal Deposit Ins. Corp.,

244 F.3d 193, 197 (1st Cir. 2001) (internal quotation marks and

citation omitted). The pleadings, and other documents properly

considered under Federal Rule of Civil Procedure 12( b ) (6), must

5 The parties agree that New Hampshire's general statute of limitations, N.H. Rev. Stat. Ann. 508:4, I, governs plaintiffs' common law claims. I accept their agreement for purposes of discussion. See Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991) (holding that a federal court sitting in diversity is free to accept the parties' agreement about what law governs their claims and may, therefore, forego an independent choice of law analysis).

- 15 - "leave no doubt" that plaintiffs' claims are barred by the

statutes of limitation. I d . (quoting LaChapelle v. Berkshire

Life Ins. C o ., 142 F.3d 507, 509 (1st Cir. 1998)) . With this

guidance in mind, I address Ford's limitations argument.

Under New Hampshire law, a cause of action accrues, and the

statutes of limitation begin to run, when: (1) all of the

necessary elements of the cause of action are present; and (2)

the plaintiff knows, or reasonably should know, of his damage and

the causal connection between that damage and the acts or

omissions of the defendant.6 See, e.g.. Draper v. Brennan, 142

N.H. 780, 785-87 (1998); Conrad v. Hazen, 140 N.H. 249, 250-53

(1995) (discussing the distinction between when a cause of action

"arises" and when it "accrues" for limitations purposes); Black

Bear Lodge v. Trillium Corp., 136 N.H. 635, 637-38 (1993) .

6 I limit my analysis to New Hampshire law because, as discussed later in this Memorandum and Order, I grant Ford's motion to dismiss plaintiffs' ADDCA claims for other reasons. I note, however, that courts employ a similar standard when determining whether a cause of action under the ADDCA has accrued. See, e.g., Salem Mall Lincoln Mercury, Inc. v. Hyundai Motor America, 103 F. Supp. 2d 1032, 1037 (S.D. Ohio 2000) (holding that ADDCA claims accrue when "the plaintiff knows or has reason to know that the act providing the basis for its injury has occurred").

- 16 - Ford contends, and I agree, that on September 13, 1996: (1)

Fuller Ford suffered quantifiable damages, i.e., it was saddled

with an expensive piece of land in New Hampton that it could not

utilize for its intended purpose; and (2) it was clear that

Ford's refusal to approve the relocation caused those damages.

See Draper, 142 N.H. at 785-87; Conrad, 140 N.H. at 250-53; Rowe

v. John Deere, 130 N.H. 18, 21-24 (1987) (holding that the

existence of nominal damages is sufficient to give rise to a

cause of action even though the plaintiff may not yet know the

full extent of his damages). Accordingly, plaintiffs' New

Hampton claims accrued on September 13, 1996. See i d . Because

more than four years passed between the accrual of plaintiffs'

claims and the filing of their complaint on November 13, 2000,

their claims will be barred by the statutes of limitation unless

they are saved by some equitable exception which would toll the

running of the applicable statutes. See N.H. Rev. Stat. Ann. §§

357-C:13, 358-A:3, IV-a, 508:4, I.

Plaintiffs invoke two equitable doctrines which, they argue,

toll the running of the statutes of limitation in this case: (1)

the "continuing violation" doctrine; and (2) the "fraudulent

- 17 - concealment" doctrine.7 Plaintiffs bear the burden of proving

that these doctrines are applicable to the facts of this case.

See Glines v. Bruk, 140 N.H. 180, 181 (1995) . I address

plaintiffs' arguments in turn.

1. Continuing Violation

Plaintiffs argue that their claims regarding the New Hampton

relocation are not barred by the statute of limitations because

they are part of a continuing violation that extended into the

limitations period. The short answer to this contention is that

while federal law recognizes the continuing violation doctrine in

the context of employment discrimination claims,8 see O'Rourke v.

7 In its motion to dismiss. Ford anticipated that plaintiffs would argue that Fuller Ford's appeal to the Policy Board tolled the running of the statutes of limitation. In their response to Ford's motion, however, plaintiffs made no more than a passing reference to this argument. Accordingly, I deem plaintiffs to have waived this argument. See Transcript of Hearing held on June 1, 2001 ("T r ."), (Doc. No. 26.1), at 22-26.

8 The First Circuit recognizes two varieties of continuing violations: serial violations and systematic violations. See Thomas v. Eastman Kodak Co . , 183 F.3d 38, 53 (1st Cir. 1999), cert, denied, 120 S.Ct. 1174 (2000). The New Hampton relocation claims cannot be considered part of a serial violation because a serial violation cannot be claimed if, as is the case here, the plaintiffs knew or reasonably should have known of their cause of action at a point where they could have filed a timely claim. See Provencher v. CVS Pharmacy. Div. of Melville Corp.. 145 F.3d 5, 15 (1st Cir. 1998). The New Hampton relocation claims also

- 18 - City of Providence, 235 F.3d 713, 730 (1st Cir. 2001), the New

Hampshire Supreme Court has shown no inclination to incorporate

the doctrine as an exception to the State's general statutes of

limitation. Accordingly, I reject plaintiffs' continuing

violation argument.

2. Fraudulent Concealment/Equitable Estoppel

Plaintiffs allege that when Fuller Ford expressed its intent

to sue Ford over its denial of the proposed New Hampton

relocation. Ford persuaded plaintiffs not to initiate litigation

by promising to relocate Fuller Ford's dealership to Plymouth.

See Cplt. 41-55. Plaintiffs further allege that Ford made

this promise fraudulently because it knew that Meredith Motors

would protest the relocation and that Ford would therefore be

unable to relocate Fuller Ford to Plymouth. I d . 55 56, 65, 70,

131. Based on these allegations, plaintiffs invoke the

fraudulent concealment rule.

cannot be considered part of a systematic violation because plaintiffs do not allege that the claims arose from a "policy or practice" that Ford applied to dealers other than the plaintiffs. See i d . at 14. Thus, even if the New Hampshire Supreme Court were to recognize a continuing violation exception to the state's general statutes of limitation, that exception would not save the plaintiffs' claims in this case.

- 19 - The "fraudulent concealment rule states that when facts

essential to the cause of action are fraudulently concealed, the

statute of limitations is tolled until the plaintiff has

discovered such facts or could have done so in the exercise of

reasonable diligence." Bricker v. Putnam, 128 N.H. 162, 165

(1986) (citing Lakeman v. LaFrance, 102 N.H. 300, 303-04 (1959)) .

Ford correctly points out, however, that the fraudulent

concealment doctrine is not applicable here because plaintiffs do

not allege that Ford concealed the existence of "facts essential

to the cause of action." Id. Instead, plaintiffs allege that

Ford fraudulently concealed its inability to fulfill its promise

to relocate Fuller Ford to Plymouth in order to persuade

plaintiffs to not file suit. Accordingly, plaintiffs may not

avail themselves of the fraudulent concealment rule.

Plaintiffs' argument is more properly construed as a claim

for equitable estoppel. See T r . at 29. The New Hampshire

Supreme Court has held that "[cjonduct of a nature giving rise to

an equitable estoppel may be sufficient to toll the running of"

statutes of limitation. Guerin v. New Hampshire Catholic

Charities, Inc., 120 N.H. 501, 504 (1980); see Appeal of Kulacz,

- 20 - 756 A . 2d 594, 597 (N.H. 2000) (concluding that plaintiff had

failed to establish a case of equitable estoppel that would toll

the statute of limitations); Appeal of Cloutier Lumber Co., 121

N.H. 420, 421-22 (1981) (holding that insurance company was

equitably estopped from asserting the statute of limitations as a

defense to a claim for workers compensation where it had assured

the employee that he would receive full compensation if he was

unable to work because of his injuries). Application of the

doctrine of equitable estoppel "rests largely on the facts and

circumstances of the particular case." Lago & Sons Dairy, Inc.

v . H .P . Hood, Inc., 892 F. Supp. 325, 331 (D.N.H. 1995) (quoting

Great Lakes Aircraft Co. v. City of Claremont, 135 N.H. 270, 289

(1992) and discussing the elements of equitable estoppel).

Because plaintiffs have alleged facts which, if proved,

could give rise to a claim of equitable estoppel that might

preclude Ford from asserting its limitations defense, I deny

Ford's motion to dismiss without prejudice to its right to renew

its argument at summary judgment. Accordingly, I proceed to

address the remaining arguments raised in defendants' motions to

- 21 - C. Breach of Contract

Plaintiffs allege that Ford entered into, and breached, the

following contracts: (1) an oral agreement to approve the

relocation of Fuller Ford's franchise to New Hampton (the "New

Hampton Contract"); and (2) a written agreement to relocate

Fuller Ford's franchise to Plymouth (the "Plymouth Contract").9

I address each claim in turn.

1. The New Hampton Contract

Plaintiffs allege that Ford orally agreed, through its

representatives, that it would approve the relocation of Fuller

Ford to New Hampton and that Ford subsequently breached that

agreement. Specifically, plaintiffs allege that: (1) Ford's

representative "announced to all of the assembled Fuller Ford

employees that the move to New Hampton was to occur," Cplt. 5 30;

9 Plaintiffs also contend that Ford breached its obligations under the Dealer Agreement to act in "good faith" towards Fuller Ford. I construe the references to "good faith" in the Dealer Agreement as an explicit acknowledgment of Ford's duty, under both the Motor Vehicle Franchise Act and the implied covenant of good faith and fair dealing, to act in good faith towards Fuller Ford, rather than as giving rise to enforceable contractual rights. Accordingly, I analyze these allegations in the sections of this Memorandum and Order which address the Motor Vehicle Franchise Act and the implied covenant of good faith and fair dealing.

- 22 - (2) Ford's Regional Sales Manager "made an express

representation" to Frederick Fuller "that approval to relocate

his dealership to New Hampton would be granted and that he should

begin preparing for the move," i d . SI 32; and (3) Ford's regional

representatives assured plaintiffs that the relocation would be

approved, i d . SI 37 .

In moving to dismiss this claim. Ford argues: (1) that the

agents who allegedly agreed, on behalf of Ford, to approve the

relocation lacked the authority to do so; and (2) that the New

Hampton Contract was not binding because it was not in writing,

as is required by the Dealer Agreement. As discussed below, I

agree.

Plaintiffs do not contend that Ford's regional

representatives had actual authority to approve the relocation,

rather plaintiffs argue that they had the apparent authority to

do so. "Apparent authority may arise when acts and appearances

lead a third person reasonably to believe that an agency

relationship exists."10 Meretta v. Peach, 491 N.W.2d 278, 280

10 The parties rely primarily on Michigan law when addressing the question of apparent authority. Because there is no material difference between the law of apparent authority in Michigan and New Hampshire, I need not decide which state's law

-23- (Mich. C t . A p p . 19 92); see Demetracopoulos v. Strafford Guidance

C t r ., 130 N.H. 209, 215-16 (1987). Such authority "must flow

from the representations of the principal and not the

representations of the alleged agent." Potomac Leasing Co. v.

French Connection Shops, Inc., 431 N.W.2d 214, 217 (Mich. C t .

App. 1988); see Meretta, 491 N.W.2d at 280; Demetracopoulos, 130

N.H. at 215-16; Daniel Webster Council, Inc. v. St. James Ass'n,

Inc., 129 N.H. 681, 683 (1987). In evaluating a claim of

apparent authority, a court must ascertain whether "an ordinarily

prudent person, conversant with [the relevant industry], would be

justified in assuming" that the alleged agent possessed the

authority to perform the act in question. Meretta, 491 N.W.2d at

280; see Demetracopoulos, 130 N.H. at 215-16; Daniel Webster

Council, Inc., 129 N.H. at 683; see also Restatement (Second) of

Agency § 27 ("apparent authority to do an act is created as to a

third person by written or spoken words or any other conduct of

the principal which, reasonably interpreted, causes the third

person to believe that the principal consents to have the act

to apply. See Fratus v. Republic Western Ins. Co., 147 F.3d 25, 28 (1st Cir. 1998); Fashion House, Inc. v. Kmart Corp., 892 F.2d 1076, 1092 (1st Cir. 1989) .

-24- done on his behalf" by the purported agent).

Even assuming that all of plaintiffs' allegations are true,

an ordinarily prudent person would not be justified in concluding

that Ford's regional representatives possessed the authority to

approve the relocation of Fuller Ford's franchise to New Hampton.

The Dealer Agreement specifically provides that: (1) Fuller Ford

may not move its franchise without the prior written consent of

Ford; and (2) only certain specified employees and officers of

Ford may execute any agreement on Ford's behalf, and that any

such agreement must be in writing.11 See Ford Sales and Service

Agreement (the "Dealer Agreement") , Exh. A to Ford's Mot. to

Dismiss, (Doc. No. 11), 5 E, Standard Provisions at 5 5(c); see

also id., Standard Provisions at 5 26 ("This agreement . . .

constitutes the entire agreement between the parties with respect

11 The First Circuit has held that when a "complaint's factual allegations are expressly linked to - and admittedly dependent upon - a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 1 2 (b)(6)." Beddall v. State Street Bank & Trust Co.. 137 F.3d 12, 17 (1st Cir. 1998); see Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993). Accordingly, I may consider the Dealer Agreement, which Ford appended to its motion to dismiss, without converting Ford's motion into a motion for summary judgement. Beddall, 137 F.3d at 17.

-25- to the subject matter hereof."). Plaintiffs make no allegations

which suggest that Ford, as principal, manifested an intent to

allow its regional representatives to waive the requirements of

the Dealer Agreement and approve relocations orally. See Potomac

Leasing C o ., 431 N.W.2d at 217 (holding that a purported agent

lacked authority to modify a lease where the lease provided that

it could only be modified "by an instrument in writing signed by

the lessee and a corporate officer of the lessor"); Daniel

Webster Council, Inc., 129 N.H. at 683. Accordingly, I reject

plaintiffs' apparent authority argument. Because Ford's regional

representatives had no authority to approve the relocation, no

contract was ever formed. Therefore, I grant Ford's motion to

dismiss this claim.

3. The Plymouth Contract

Ford does not dispute that it agreed to relocate Fuller Ford

to Plymouth.12 Ford contends, however, that the decision of the

12 Although plaintiffs contend that the Plymouth Contract is a written agreement, see T r . at 2-3, they do not specify when or where it was made, or what state's law should govern it. Accordingly, I rely on general principles of contract law. I note, however, that both New Hampshire and Michigan appear to have adopted the impossibility doctrine. See, e.g.. Auger v. Chapdelaine, 106 N.H. 246, 248 (1965) (discussing impossibility); Vergote v. K Mart Corp., 404 N.W.2d 711, 717-18 (Mich. C t . A p p .

-26- Motor Vehicle Board rendered performance of the Plymouth Contract

impossible.

As Ford notes, it is black letter law that:

Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.

Restatement (Second) of Contracts § 261. Thus, as a general

matter, an administrative or judicial order barring completion of

a contract excuses performance. I d . at § 264.

Plaintiffs contend, however, that Ford may not avail itself

of the impossibility doctrine at this juncture for two reasons.

First, they argue that Ford knew, or reasonably should have

known, that, under New Hampshire law, it had to provide good

cause for its relocation decision and that other dealers, such as

Meredith Motors, might challenge Ford's actions. Second, they

contend that Ford failed to satisfy its obligation to make a

reasonable, good faith effort to prevent the supervening

1987) (same).

-27- impossibility, i.e., they contend that Ford should have reached a

settlement with Meredith Motors. Because I agree with the first

argument, I need not address the latter.

Many courts have held that "[i]f the event that is the basis

of a claim of impossibility is reasonably foreseeable . . . the

defense will be lost because the promisor should have provided

for the contingency in the contract." John D. Calamari and

Joseph M. Perillo, The Law of Contracts § 13.18 (4th ed. 1998)

(collecting cases); see, e.g., Vergote, 404 N.W.2d at 717-718

(stating that the availability of the impossibility defense "may

depend upon whether the supervening event . . . was or was not

reasonably foreseeable when [the defendant] entered into the

contract."); see also Restatement (Second) of Contracts § 261,

cmts. b, c (discussing foreseeability). Accordingly, plaintiffs

could potentially negate Ford's impossibility defense if they

could offer facts showing that Ford knew, or reasonably should

have known: (1) that New Hampshire's Motor Vehicle Franchise Act

required Ford to show "good cause" for realigning Meredith

Motors' sales territory, and that it could not make such a

showing under the circumstances; and (2) that Meredith Motors

-28- would protest the relocation. See N.H. Rev. Stat. Ann. § 357-

C:9. Accordingly, I deny Ford's motion to dismiss this claim.

D. The Implied Covenant of Good Faith and Fair Dealing

Plaintiffs contend that Ford breached the implied covenant

of good faith and fair dealing inherent in the Dealer Agreement

by: (1) inducing plaintiffs to purchase the New Hampton site and

then refusing to relocate Fuller Ford's franchise to that site;

(2) inducing plaintiffs to purchase the Plymouth site,

misrepresenting that it was unlikely that other dealers would

protest the relocation of Fuller Ford's franchise to that site,

and ultimately failing to relocate the franchise; and (3) not

acting to prevent FMCC from terminating Fuller Ford's line of

credit.13 See Cplt. 84(a), 93. Ford moves to dismiss these

claims. I begin my analysis by determining which state's law to

apply to plaintiffs' claims.

13 In addition, in Count II of their amended complaint, plaintiffs assert, albeit unclearly, that Ford also violated the covenants of good faith and fair dealing inherent in the New Hampton Contract and the Plymouth Contract. See Cplt. 55 91-97. Because I have already concluded that Ford's agents lacked the authority to enter into the alleged New Hampton contract, I dismiss plaintiffs' good faith and fair dealing claim based on that agreement. Because Ford has not addressed the sufficiency of plaintiffs' good faith and fair dealing claim based on the Plymouth Contract, that claim remains.

-29- 1. Michigan Law

The Dealer Agreement provides that the parties intend it to

be construed in accordance with Michigan Law.14 Dealer

Agreement, Standard Provisions at I 32. Although plaintiffs

agree that, in general, the Dealer Agreement should be construed

in accordance with Michigan law, they argue that I should

interpret their good faith and fair dealing claims in accordance

with New Hampshire law. I reject this argument. Because

plaintiffs' claims depend, in the first instance, on whether the

Dealer Agreement, as construed under Michigan law, confers

sufficient discretion upon Ford such that the implied covenant

attaches, I apply Michigan law to plaintiffs' good faith and fair

dealing claims. See Caton v. Leach Corp., 896 F.2d 939, 943 (5th

Cir. 1990); Carlock v. Pillsburv Co . , 719 F. Supp. 791, 807 (D.

Minn. 1989) (collecting cases supporting the proposition that

" [c]ontractual choice of law provisions apply to claims for

breach of the implied covenants of good faith and fair dealing").

14 New Hampshire recognizes such choice of law provisions when the contract bears a significant relationship to the jurisdiction whose law is designated as the rule of decision. See Allied Adjustment Serv. v. Henev, 125 N.H. 698, 700 (1984) . The requisite relationship is present here because Ford has its principal place of business in Michigan. See i d .

-30- "When a contracting party makes the manner of its

performance subject to its own discretion, [Michigan] law will

imply that the discretion be exercised honestly and in good

faith." Jacobson v. BH Assocs. L.P., No. 222945, 2001 WL 738408,

*2 (Mich. C t . App. June 29, 2001) (per curiam); see Sims v. Buena

Vista Sch. Dist., 360 N.W.2d 211, 213-14 (Mich. C t . App. 1984)

(per curiam); Burkhardt v. City Nat'1 Bank of Detroit, 226 N.W.2d

678, 680 (Mich. C t . App. 1975). The implied covenant "seeks to

protect the contracting parties' reasonable expectations" by

supplying limits to the parties' exercise of discretion. Hubbard

Chevrolet Co. v. General Motors Corp., 873 F.2d 873, 876 (5th

Cir. 1989) (interpreting Michigan law). It does not, however,

"override the express terms of the parties' contract, and cannot

form the basis for a claim independent of that contract." Clark

Bros. Sales Co. v. Dana Corp., 77 F. Supp. 2d 837, 852 (E.D.

Mich. 1999) (applying Michigan law); see Hubbard Chevrolet Co.,

873 F.2d at 877. Thus, whether the implied covenant of good

faith and fair dealing even comes "into play" in this case

depends upon the language of the Dealer Agreement. See Hubbard

Chevrolet C o ., 873 F.2d at 877; Paradata Computer Networks, Inc.

v. Telebit Corp., 830 F. Supp. 1001, 1005 (E.D. Mich. 1993)

-31- ("Whether a performance is a matter of a party's discretion

depends on the nature of the agreement between them"). I now

address plaintiffs' claims.

2. The Relocation Claims

With regard to their claims regarding the proposed

relocations to New Hampton and Plymouth, plaintiffs have

identified language in the Dealer Agreement to which, they

contend, the implied covenant attaches. Specifically, Paragraph

5 (c) provides that Fuller Ford cannot change the location of its

dealership "without the prior written consent of" Ford. Dealer

Agreement, Standard Provision at I 5 (c). Plaintiffs argue that

Ford must act in good faith when exercising its discretion under

Paragraph 5(c) in deciding whether to consent to a dealership's

relocation request. In contrast. Ford interprets Paragraph 5(c)

as granting Ford absolute discretion to approve or deny a

relocation request. Therefore, Ford argues, the implied covenant

does not attach. See, e.g., Hubbard Chevrolet Co., 873 F.2d at

877-7 8; Bertera Chrysler Plymouth, Inc. v. Chrysler Corp., 9 92 F.

Supp. 64, 73 (D. Mass. 1998); Paradata Computer Networks, Inc.,

830 F. Supp. at 1005-06.

-32- Michigan interprets contracts under the plain meaning rule.

See Kukowski v. Piskin, 297 N.W.2d 612, 613 (Mich. C t . App.

1980). Under that rule, if contract language is unambiguous,

then its construction is a matter of law for the court and the

language must be given its plain meaning. See Ford Motor Co. v.

Northbrook Ins. Co., 838 F.2d 829, 832 (6th Cir. 1988) (applying

Michigan law); Port Huron Educ. Ass'n, MEA/NEA v. Port Huron Area

S c h . Dist., 550 N.W.2d 228, 237 (Mich. 1996) . "Where the

contract language is unclear or susceptible to multiple meanings,

interpretation becomes a question of fact." Port Huron Educ.

A s s 'n , 550 N.W.2d at 237.

In the present case, I determine that plaintiffs'

interpretation of Ford's obligations under Paragraph 5(c) is

reasonable. I therefore need not decide at this point whether

Ford's alternative interpretation is also reasonable.

In addition to alleging sufficient facts to "bring the

covenant into play," plaintiffs have alleged sufficient facts to

support an allegation that Ford acted in bad faith. Bad faith is

defined as "'arbitrary, reckless, indifferent, or intentional

disregard of the interests of the person owed a duty.'" Maida v.

-33- Retirement and Health Servs. Corp., 36 F.3d 1097, Nos. 93-1625,

93-1635, 1994 WL 514521, *5 (6th Cir. Sept. 19, 1994) (table;

text available on Westlaw) (per curiam) (citation omitted).

Plaintiffs have alleged that Ford acted in bad faith by

encouraging them to purchase the New Hampton and Plymouth

properties knowing that it would not allow Fuller Ford to

relocate to either location.

Because plaintiffs have identified language in the Dealer

Agreement to which an implied covenant of good faith and fair

dealing could attach and have alleged facts that would support an

inference of bad faith, I deny Ford's motion to dismiss these

claims.

3. The FMCC Claim

Plaintiffs fail to identify any language in the Dealer

Agreement to which an implied covenant of good faith could attach

with regard to their claim that Ford failed to act in the face of

FMCC's termination of Fuller Ford's line of credit. See Hubbard

Chevrolet C o ., 873 F.2d at 877. Accordingly, I grant Ford's

motion to dismiss this claim.

-34- E. ADDCA Claims

Plaintiffs assert that Ford violated the Automobile Dealer

Day in Court Act ("ADDCA") by: (1) encouraging Fuller Ford to

purchase the New Hampton site and then denying its request to

relocate there; and (2) coercing Fuller Ford into purchasing the

Plymouth site even though it knew that it could not guarantee

that the relocation to Plymouth would be successful. In order to

prevail on their ADDCA claims, plaintiffs must show that they

were wrongfully injured by Ford's "failure to act in good faith."

See 15 U.S.C. § 1222; Northview Motors, Inc. v. Chrysler Motors

Corp., 227 F.3d 78, 93 (3d Cir. 2000) (discussing the elements of

an ADDCA claim). Ford argues that these claims should be

dismissed because plaintiffs have failed to plead facts which, if

true, would show that Ford failed to act in good faith. As

discussed below, I agree.

The First Circuit has adopted a very narrow interpretation

of the phrase "failure to act in good faith," as used in the

ADDCA. See General CMC. Inc. v. Volvo White Truck Corp.. 918

F.2d 306, 308 (1st Cir. 1990); H.D. Corp. of Puerto Rico v. Ford

Motor C o ., 791 F.2d 987, 990 (1st Cir. 1986); Wallace Motor

-35- Sales, Inc. v. American Motors Sales Corp., 780 F.2d 1049, 1056

(1st Cir. 1985); see also 15 U.S.C. § 1221(e) (defining "good

faith"). To satisfy this element of their ADDCA claims,

plaintiffs must show that Ford engaged in "actual or threatened

coercion or intimidation" and that, as a result. Fuller Ford was

"forced to act or refrain from acting and that it suffered

damage." Wallace Motor Sales, Inc., 780 F.2d at 1056. This

coercion or intimidation "must include a wrongful demand that

would result in penalties or sanctions if not complied with."

Id. Mere "recommendation, endorsement, exposition, persuasion,

urging or argument shall not be deemed to constitute a lack of

good faith." 15 U.S.C. § 1221(e).

Plaintiffs do not allege that Ford threatened to penalize or

sanction Fuller Ford for not relocating to a new site. At best,

the complaint suggests that Ford strongly encouraged or persuaded

Fuller Ford to purchase the New Hampton and Plymouth sites. See

15 U.S.C. § 1221(e). Because this falls far short of the

coercion or intimidation required to state an ADDCA claim, I

grant Ford's motion to dismiss these claims. See id.; General

GMC, Inc.. 918 F.2d at 308; H.D. Corp. of Puerto Ric o , 791 F.2d

-36- at 990-92 (affirming dismissal of an ADDCA claim where the

complaint failed to state specific acts of coercion); Wallace

Motor Sales, Inc., 780 F.2d at 1056.

F. Motor Vehicle Franchise Act

Plaintiffs assert three claims against Ford under the Motor

Vehicle Franchise Act. Ford moves to dismiss two of those

claims .15

1. Unreasonable Restriction

Plaintiffs contend that Ford's disapproval of the New

Hampton relocation violated Section 357-C:3, III (n) of the Motor

Vehicle Franchise Act, which provides that a manufacturer may

not:

impose unreasonable restrictions on the motor vehicle dealer or franchisee relative to transfer, sale, right to renew, termination, discipline, noncompetition covenants, site-contract, right of first refusal to purchase, option to purchase, compliance with subjective standards, or assertion of legal or equitable rights.

N.H. Rev. Stat. Ann. § 357-C:3, III (n). Ford argues that

Section 357-C:3, III (n) does not give rise to a cause of action

15 Ford does not move to dismiss plaintiffs' claim that Ford violated Section 357-C:3, I of the Motor Vehicle Franchise Act. See Cplt. 55 104-108.

-37- based on a manufacturer's refusal to relocate a dealership.

When interpreting a New Hampshire statute, I must "first

examine the language found in the statute." Appeal of Astro

Spectacular, Inc., 138 N.H. 298, 300 (1994) . I must consider the

statute as a whole, and not rely solely on "isolated words or

phrases." St. Joseph Hosp. of Nashua v. Rizzo, 141 N.H. 9, 11

(19 9 6); see Opinion of the Justices, 135 N.H. 543, 545 (1992).

To the extent that a term is not defined in the statute, I give

that term "its plain and ordinary meaning." New Hampshire Div.

of Human Servs. v. Hahn, 133 N.H. 776, 778 (1990). I may not,

however, "ignore the plain language of the legislation [or] add

words which the lawmakers did not see fit to include." Appeal of

Astro Spectacular, Inc., 138 N.H. at 300 (quoting Brown v. Brown,

133 N.H. 442, 445 (1990)); see also St. Joseph Hosp. of Nashua,

141 N.H. at 11-12 ("Normally the expression of one thing in a

statute implies the exclusion of another." (internal quotation

marks and citation omitted)).

Although Section 357-C:3, III (n) does not expressly refer

to relocations, plaintiffs contend that the term "site-contract"

could reasonably be interpreted to refer to how a dealer may

utilize the site of his franchise, including whether or not she

-38- may relocate all or part of that franchise to a new site. This

issue has not been developed well enough in the briefs for me to

reliably respond to plaintiffs' contention. Accordingly, I deny

Ford's motion to dismiss this claim, without prejudice to its

right to renew its argument at summary judgment.

2. Constructive Termination

Plaintiffs allege that Ford constructively terminated Fuller

Ford's franchise without good cause, in violation of Section 357-

C:7, I of the Motor Vehicle Franchise Act, when it: (1)

encouraged Fuller Ford to obtain the Plymouth site; and (2)

refused to intercede when FMCC terminated Fuller Ford's line of

credit. Section 357-C:7, I provides that "no manufacturer shall

cancel, terminate, fail to renew, or refuse to continue any

franchise relationship" with a dealer unless the manufacturer

has: (1) notified the dealer in writing of the prospective

termination not less than ninety days prior to the effective date

of such termination; (2) acted in good faith; and (3) good cause

for his actions. N.H. Rev. Stat. Ann. § 357-C:7, I.

Ford argues that: (1) Section 357-C:7, I does not provide a

cause of action for constructive termination; and, in any event,

(2) this claim is barred by the terms of the Dealer Agreement.

-39- Because I agree with the first argument, I need not address the

latter.

First, I note that Section 357-C:7, I does not expressly

refer to constructive termination. See St. Joseph Hosp. of

Nashua, 141 N.H. at 11-12; Appeal of Astro Spectacular, Inc., 138

N.H. at 300. Moreover, Section 357-C:7, I requires that a

terminated dealer receive notice from the manufacturer. See

Appeal of Astro Spectacular, Inc., 138 N.H. at 300; Opinion of

the Justices, 135 N.H. at 545; Hahn, 133 N.H. at 778. This

notice requirement protects a dealer against a manufacturer's

sudden and unwarranted decision to terminate a franchise. Where,

as is alleged here, a dealer, e.g.. Fuller Ford, feels compelled

to terminate its relationship with a manufacturer. Section 357-

C:7, I's notice requirement is irrelevant. Moreover, construing

Section 357-0:7, I to provide a cause of action for constructive

termination would lead to an absurd result: a dealer could sever

his relationship with a manufacturer, claim constructive

termination, and argue that the manufacturer had failed to

provide him with the notice required by statute. See Doqqett v.

Town of North Hampton Zoning Bd. of Adjustment, 138 N.H. 744, 746

(1994) (holding that a court should construe a statute so as to

-40- effectuate its evident purpose and to "avoid an interpretation

that would lead to an absurd or unjust result"). To the extent

that the Motor Vehicle Franchise Act provides for a cause of

action in the event of a constructive termination, a plaintiff's

proper recourse is to Section 357-C:3, I, which makes it unlawful

for a manufacturer "to engage in any action which is arbitrary,

in bad faith, or unconscionable." See Nault v. N&L Dev. Co., 767

A.2d 406, 408 (N.H. 2001) ("All statutes upon the samesubject-

matter are to be considered in interpreting any one of them . ..

[a court must] construe [those statutes] so that they do not

contradict each other, and so that they will lead to reasonable

results and effectuate the legislative purpose of the statute."

(citation omitted)). Accordingly, I conclude that Section 357-

C:7, I does not apply to constructive terminations and,

therefore, I grant Ford's motion to dismiss this claim.

G. Tortious Interference

Plaintiffs allege that Ford wrongfully interfered with their

relationship with current and potential customers in the Bristol

area. To prevail on this claim, plaintiffs must prove that: (1)

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

knew of the relationship; (3) Ford intentionally and improperly

-41- interfered with the relationship; and (4) plaintiffs were damaged

by this interference. See Montrone v. Maxfield, 122 N.H. 724,

726 (1982); Baker v. Dennis Brown Realty, Inc., 121 N.H. 640, 644

(1981); see also Restatement (Second) of Torts § 766B. Ford

argues that this claim must be dismissed because plaintiffs fail

to allege that they had an economic relationship with a third

party.

A plaintiff may not base a tortious interference claim

solely on his potential relationship with consumers in a given

market. See Heritage Home Health, Inc. v. Capital Region Health

Care Corp.. Civ. No. 95-558-JD, 1996 WL 655793, *4 (D.N.H. Oct.

1, 1996) ("The court has found no authority for the proposition

that a plaintiff may bring an action for tortious interference

with prospective contractual relations based solely on a

plaintiff's potential for capturing a share of a given market.").

Thus, I dismiss that portion of plaintiffs' tortious interference

claim which relies on their potential relationship with consumers

in the Bristol area. See i d .

Plaintiffs may, however, attempt to show that Ford

tortiously interfered with their relationships with specific

customers in the Bristol area. See i d . Accordingly, I deny

-42- Ford's motion to the extent that plaintiffs claim that Ford

interfered with such relationships.

H. The Claims Against FMCC

Plaintiffs allege that FMCC violated the terms of the

Application for Wholesale Financing and Security Agreement (the

"Financing Agreement"), and the covenant of good faith and fair

dealing implied therein, when it terminated Fuller Ford's line of

credit.16 FMCC moves to dismiss both claims, arguing that it had

no obligation under the Financing Agreement to extend credit to

Fuller Ford.17 See Ford Motor Credit Co. v. Devalk Lincoln-

16 I may consider the Financing Agreement without converting FMCC's motion into a motion for summary judgement because: (1) plaintiffs' factual allegations are linked to that agreement; (2) FMCC attached a copy of the Financing Agreement to its motion to dismiss; and (3) plaintiffs do not dispute the authenticity of that attachment. See Beddall, 137 F.3d at 17.

17 FMCC bases its argument on Paragraph One of the Financing Agreement, which provides, in relevant part, as follows: [FMCC] at all times shall have the right in its sole discretion to determine the extent to which, the terms and conditions on which, and the period for which it will make such advances, purchase such contracts, or otherwise extend credit to [Fuller Ford] . . . [FMCC] may, at any time and from time to time, in its sole discretion, establish, rescind or change limits or the extent to which financing accommodations under the [Ford Credit

-43- Mercury, Inc., 600 F. Supp. 1547, 1550-51 (N.D. 111. 1985).

I interpret the Financing Agreement in accordance with New

Hampshire law.18 When construing a contract. New Hampshire

courts "analyze the entire document to determine the meaning

intended by the parties." Echo Consulting Servs., Inc. v. North

Conway Bank, 140 N.H. 566, 569 (1995); see Chadwick v. CSI, Ltd.,

137 N.H. 515, 524-25 (1993). "Language used by the parties

should be given its standard meaning as understood by reasonable

people." Echo Consulting Servs., Inc., 140 N.H. at 569. "In the

absence of ambiguity, the intent of the parties . . . is to be

determined from the plain meaning of the language used." Id.;

see Robbins v. Salem Radiology, 764 A. 2d 885, 887 (N.H. 2000).

Although FMCC makes an interesting argument, I cannot

address it at this stage of the proceedings. The Financing

Agreement states that Fuller Ford "requests [FMCC] to establish

Wholesale] Plan will be made available to [Fuller Ford.] Financing Agreement, Exh. A to FMCC's Mot. to Dismiss, (Doc. No. 12) .

18 The Financing Agreement provides that it shall be interpreted in accordance with the laws of Fuller Ford's place of business, i.e.. New Hampshire. See Allied Adjustment Serv., 125 N.H. at 700.

-44- and maintain . . . a wholesale line of credit . . . under the

terms of the Ford Credit Wholesale Plan." Because the parties

have not provided me with a copy of the Ford Credit Wholesale

Plan, and because the terms of that document may significantly

modify the terms of the Financing Agreement, I cannot evaluate

FMCC's arguments at this time. See Echo Consulting Servs., Inc.,

140 N.H. at 569; Chadwick, 137 N.H. at 524-25. Accordingly, I

deny FMCC's motion to dismiss without prejudice to its right to

renew its arguments at summary judgment.

IV. CONCLUSION

In summary, I order plaintiffs to file an amended complaint

and I deny FMCC's motion to dismiss, (Doc. No. 12). I grant

Ford's motion to dismiss, (Doc. No. 11), plaintiffs' claims for:

(1) breach of the New Hampton Contract; (2) breach of the

covenant of good faith and fair dealing implied in the New

Hampton Contract; (3) breach of the covenant of good faith and

fair dealing implied in the Dealer Agreement, to the extent this

claim is based on Ford's failure to act with regard to FMCC's

termination of Fuller Ford's line of credit; (4) violations of

-45- the ADDCA; (5) constructive termination under N.H. Rev. Stat.

Ann. § 357-C:7, I; and (6) tortious interference, to the extent

that this claim is based on plaintiffs' relationship with

potential customers in Bristol. I deny Ford's motion in all

other respects.

SO ORDERED.

Paul Barbadoro Chief Judge

August 6, 2001

cc: Eric L. Chase, Esq. Phillip A. Brouillard, Esq. Gabriel Nizetic, Esq. Robert R. Lucie, Esq. Nicholas T. Christakos, Esq.

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