Hoffman v. Applicators Sales and Serv., Inc

• Court: Superior Court of Maine
• Decided: October 16, 2006
• Docket: CUMcv-04-430
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss .. .. Civil Action Docket No. CV-04-430, 1 '. - .. 1' ; .. > . ,-, ,. .o .: c . .;. . . 6 . . . , . . , , ~i i -,J .% .

, i ' , '

ARNOLD HOFFMAN, Plaintiff

DECISION AND ORDER

APPLICATORS SALES AND SERVICE, INC., PARADIGM WINDOW SOLLITIONS, ANDREW SEVIER, and RICHARD ROBINOV, DONALD L. GARBRECHT LAW LIBRARY Defendants

I. BEFORE THE COURT

Defendants' Motion for Summary Judgment on Count I1 (Defamation) and Count

I11 (Breach of Agreement), plaintiff's Motion to Bifurcate and for Attorney's Fees, and

plaintiff's Motion to Supplement the Summary Judgment Record.

11. BACKGROUND AND PROCEDURAL HISTORY T h s case arose after the plaintiff, Arnold Hoffman's, employment was

terminated by h s employer Paradigm Window Solutions.' On July 2,2004, Hoffman,

filed a three-count complaint in h s court alleging age discrimination, defamation and

breach of agreement. The defendants, Applicators Sales and Service, Inc. (Applicators),

Andrew Sevier and Richard Robinov, filed an answer and a motion July 22,2004

removing the case to the United States District Court for the District of Maine. After an

amended answer was filed the District Court issued a scheduling order, discovery took

place with a closing date of December 27,2004.

1 Paradigm Window Solutions is a wholly owned subsidiary of Applicators Sales and Services. On December 12, 2004, the defendants moved to strike the plaintiff's designation

of an expert witness on grounds that the plaintiff exceeded the time limit for expert

designation set in the scheduling order. The defendants then moved for summary

judgment on all three counts. The court struck the plaintiffs designation of an expert

witness on February 22,2005. On March 9,2005, the court granted summary judgment

on Count I (Age Discrimination) and ordered the case remanded back to this court for

determination of the remaining motions on Counts I1 and 111.

The plaintiff appealed the judgment on Count I to the United States Court of

Appeals for the First Circuit w h c h affirmed the District Court's judgment on March 27,

2006.

The defendants filed a motion to bifurcate issues on the petition for attorney's

fees. The court did not entertain the plaintiff's response to the defendant's motion

because it failed to comply with M.R. Civ. P. 89(b). The plaintiff's filed a response on

September 6,2006. On September 11,2006, the plaintiff filed a motion to supplement

the summary judgment record. The defendants objected to the plaintiff's motion to

supplement the summary judgment record.

111. DISCUSSION

A. Motion for Summa y Judgment

T h s court will grant a motion for summary judgment when no genuine issue of

material fact exists and any party is entitled to judgment as a matter of law. Gagnon's

Hardware l3 Furniture v. Michaud, 1998 ME 265, P[ 5, 721 A.2d 193, 194; M.R. Civ. P. 56(c).

"A material fact is one having the potential to affect the outcome of the suit." Burdzel v.

Sobus, 2000 ME 84 ¶ 6, 750 A.2d 573,575. "A genuine issue exists when sufficient

evidence requires a fact finder to choose between competing versions of the truth at trial." MP Assocs. v. Liberty, 2001 ME 22, ¶ 12, 771 A.2d 1040, 1044. Rule 56 requires

parties "to come forward with affidavits or other materials setting forth by competent

proof specific facts that would be admissible in evidence to show . . . that a genuine

issue of fact exists." Bangor 6 Aroostook R.R. Co. v. Daigle, 607 A.2d 533,535-36 (Me.

1992).

"Facts contained in a supporting or opposing statement of material facts, if

supported by record citations as required by tlus rule, shall be deemed admitted unless

properly controverted." M.R. Civ P. 56(h)(4). "All facts not properly controverted in

accordance with this rule are deemed admitted." Rogers v. Jackson, 2002 ME 140

A.2d 379,380-81 (citing M.R. Civ. P. 56(h)(4)). Summary judgment is properly granted

to a party when the non-moving party has the burden of proof on an issue at trial and

the moving party "would be entitled to a judgment as a matter of law at trial if the [non-

moving party] presented notlung more than was before the court at the hearing on the

motion for a summary judgment." Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, qI 9,

711 A.2d 842, 845. Finally, the court gives the party opposing a summary judgment the

benefit of any inferences that might reasonably be drawn from the facts presented.

Curtis v. Porter, 2001 ME 158, <1I 9, 784 A.2d 18, 22.

1. Incomplete Discovery

Where the non-moving party requires more time to develop evidence it must file

some opposition with a request for more time supported by an appropriate affidavit.

Selby v. Cumberland Co., 2002 ME 80 9 12 n.11, 796 A.2d 678. Here, no affidavit supports

the plaintiff's contention that more time is needed for discovery, as pointed out in the

District Court's order of March 10,2005. There, the court determined this case was ripe

for summary judgment and specifically noted that the discovery deadline was

December 27,2004. The defendant conceded that as of February 8,2005, "the bulk of discovery . . . has been completed." Pl.'s Objection to Mot. for Summ. J. at 3. The

plaintiff has failed to provide any evidence that summary judgment is premature at this

time.

2. Count II, Defamation

The elements of defamation are:

(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Rice v. Alley, 2002 ME 43, ¶ 19, 791 A.2d 932, 936 (citation omitted).

An individual is not liable for defamation if publication occurs under

circumstances that make it conditionally privileged and the privilege is not abused. Id.

at ¶ 21. "A conditional privilege against liability for defamation arises in settings where

society has an interest in promoting free, but not absolutely unfettered speech." Lester v.

Powers, 596 A.2d 65,69 (Me. 1991). "Any situation in wluch an important interest of the

recipient will be furthered by frank communication may give rise to a conditional

privilege." Id, at 70.

"Although we have not had occasion to speak directly on h s employment-related

privilege, we have recognized its existence indirectly in reviewing trial courts' jury

instructions." Gautschi v. Maisel, 565 A.2d 1009 (Me. 1989)(theLaw Court recognized as

conditionally privileged statements made by a defendant during an employment

review of the plaintiff that the plaintiff claimed resulted in his termination). Whether

Hoffman "is entitled to the common law privilege is a question of law." Cole v. Chandler,

2000 ME 104, q[ 6,752 A.2d 1189,1193. A corporation "was entitled to a conditional

privilege in this case against a claim of slander brought by one of its employees arising out of the termination of his employment relationship w i t h the corporation. Id. at 6,

1193-94 (employee sued employer for defamation, and other claims, after he was

terminated for sexual harassment because he would be forced to give the reason for his

termination when searclung for other employment and claimed the charge of sexual

harassment was slanderous). The privilege is abused when the statement is made

"outside normal channels or with malicious intent. . . . malice means when the

originator of the statement knows her statement to be false, recklessly disregards its

truth or falsity, or acts with spite or ill will." Id. at q[ 23.

Here, the plaintiff claims defamation arising from statements made on a

termination form with the reason for termination described as "unsatisfactory job

performance." DSMF 9 89. Although the plaintiff denies the facts set forth in h s

paragraph, he has failed to properly controvert the defendant's facts with admissible

evidence in h s response, therefore, the facts are deemed admitted. Assuming arguendo

that the speech could be characterized as defamatory, the only statement allegedly

made by the defendants for which the plaintiff has provided evidence is the use of the

word "unsatisfactory" in reference to the plaintiff's job performance in the plaintiff's

termination p a p e r w ~ r k .Id. ~ The Law Court has recognized as privileged statements

made in the context of an employee's termination, including the basis for that

termination.

Unless the privilege was abused, the defendants' statements do not provide the

basis for plaintiff's claim. Writing the reason for termination on termination paperwork

is w i h n normal channels. The plaintiff relies on Hoffman's affidavit to prove that h s

performance was satisfactory. Hoffman states the belief that lus performance was

Privilege aside, the plaintiff has not presented sufficient evidence to prevail on any element of his defamation claim. satisfactory and invites the court to determine that h s performance was such. Loolung

at the facts in the light most favorable to the plaintiff, and viewing his performance as

satisfactory, there is no evidence that the defendants believed that Hoffman's

performance was satisfactory or that the use of the term "unsatisfactory" was spiteful or

made with ill will. In fact, the record indicates Hoffman's annual review contained

criticisms of his performance and h s pay review was postponed for ninety days,

indications that Hoffman's employer was not satisfied with his performance. DSMF ¶¶

52, 68. In this case, the defendants are shielded from any potential liability for their

statement because those statements were privileged and the privilege was not abused.

3. Count 111, Breach of Agreement

"It has long been the rule that a contract of employment for an indefinite length of

time is terminable at the will of either party." Larrabee v. Penobscot Frozen Foods, 468 A.2d

97, 99 (Me. 1984). When there is no agreement that an employee "would be employed

for a determinate, measurable period of time . . . her position was terminable at will."

Burnell v. Town of Kingfreld, 686 A.2d 1072,1074 (Me. 1996). The Law Court has held

"that parties may enter into an employment contract terminable only pursuant to its

express terms . . . by clearly stating their intention to do so." Larrabee, 468 A.2d at 99-

100. "A contract that provides for a definite term of employment generally continues

until the expiration of the term." Burnell, 686 A.2d at 1073.

Here, Hoffman contends that an agreement arose as part of h s annual

performance review on May 22-23, 2003. SSMF ¶ 48. At that review, Hoffman received

a written "performance review follow up" and oral statements by Sevier stating that on

August 29,2003, there would be another review and a pay increase would be assessed

at that time. DSMF ¶T 52 - 53/58. Plaintiff points to the following language as the

defendant's commitment to continue employing Hoffman: "You have been given Goals for your next review, which is, scheduled for 29 AUG 03. If these goals have been

accomplished and your performance exhbits improvement, your compensation will be

reconsidered." P. Obj. to Mot. for S. J. at 18. Hoffman has presented no evidence and

never alleged that h s employment was for a fixed term, therefore, he was an employee

at-will. In the absence of the parties manifesting clear intent that Hoffman would be

employed for a specific term, he remained an at-will employee regardless of the fact

that he was periodically reviewed. The language of the "performance review follow

up" contains no manifestation of an intent by the defendants to enter an agreement that

Hoffman would continue to be employed through August 29,2003. The plaintiffs

position would turn every employee with a definite employment review date into a

term employee without the required clear intent by both parties to enter such an

agreement. Hoffman has not alleged or demonstrated that he ever was employed for a

specified term and therefore he was an at-will employee who could be discharged at the

will of his employer.

B. Motion to Bifurcate Issues on Petition for Attorney's Fees

The defendants' claim they are entitled to attorney fees under the Maine Human

fights Act ("MHRA") and the Age Discrimination in Employment Act ("ADEA"). The

defendants' motioned this court to bifurcate the issues of liability and the actual award

and then submitted a memorandum of law on the merits of the petition for attorney

fees, omitting reference to the amount of the award the defendants seek. The

defendants contend that preparing an accounting of fees incurred will be expensive and

require greater effort so that the "mental impressions of the defendant's counsel are not

inadvertently revealed in the context of ongoing litigation." Ds.' Mot. to Bif. Issues q[ 4.

The plaintiffs oppose the defendants' motion, but offer no reason other than their belief

the defendants lack valid grounds to bifurcate. M.R. Civ. P. 54(b)(3)states: When final judgment has been entered on all claims except a claim for attorney fees, an application for the award of attorney fees shall be filed within 60 days after entry of judgment if no appeal has been filed. If an appeal has been filed, the application may be filed and acted upon in the trial court at any time after entry of the judgment appealed from and in any case shall be filed not later than 30 days after final disposition of the action. A n application for a t t o r n q fees shall ordinarily be acted upon by the justice or judge who rendered the judgment on the merits. (emphasis added) It is within the court's discretion to grant the motion to bifurcate; however, in

light of this court's decision to grant defendants' Motion for Summary judgment, the

Motion to Bifurcate is moot and a ruling is not required.

C. Motion for Attorney's Fees

The motion for attorney fees prior to judgment is premature under usual Maine

practice because judgment has not been entered on all claims; however, it does put the

plaintiff on clear notice that the fees are sought. See, M.R. Civ. P. 54 (b)(2).

Furthermore, M.R. Civ. P. 54(b)(3)states: "An application for attorney fees shall

ordinarily be acted upon by the justice or judge who rendered the judgment on the

merits." The claim for attorney fees is based on the statute that provided the grounds

for Count I. That claim was heard and ruled on in the federal court. According to the

rule, the federal court should be he forum to act on the application for attorney fees

because that court granted summary judgment on Count I and is in a superior position

to rule on the merits of such a claim.3

'The defendants' claim for attorney's fees is based in the Maine Human Rights Act, 5 M.R.S.A. 5 4614, and the Age Discrimination in Employment Act, 29 U.S.C. 5 626(b). From a cursory review it appears that the defendants must demonstrate that the plaintiff has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Alyeska Pipeline Serv. Cp. V . Wilderness Soc., 421 U.S. 240, 259-260 (the language of the Maine Human lbghts Act tracks federal law, see Me. Human Rights Comm'n v. Allen, 474 A.2d 853,857 (Me. 1984)). This court finally decided only the defamation and breach of agreement claims, which under he traditional American Rule does not provide for an award of attorney's fees. The defendant's claim for attorney's fees may be meritorious, but the District Court that ruled on the merits the discrimination claims is in a superior position to characterize the parties' actions, particularly with the bad faith requirement, if an award of fees is found to be appropriate. D. Motion to Supplement the Summary Judgment Record

The plaintiff claims to have recently obtained two affidavits that support his

contention that he was defamed and his reputation sullied. Modification of a

scheduling order requires a showing of good cause. M.R. Civ. P. 16(a). The plaintiff

fails to provide a reason why these affidavits could not have been obtained in time for

the discovery deadline of December 27,2004 since they concern events and

conversations that are alleged to have taken place in the summer of 2003.

IV. DECISION AND ORDER

The clerk will make the following entries as the Decision and Order of the court:

A. Plaintiff's Motion to Supplement the Summary Judgment Record is denied.

B. Defendants' Motion for Summary Judgment on Counts I1 and 111 is granted.

C. Defendants' Motion to Bifurcate is moot and no Order is required.

D. Judgment is entered for all defendants on Counts I1 and 111.

E. Defendants are entitled to costs as allowed by rule and statute.

F. This case is returned to the United States District Court for the District of Maine for a determination of whether an award of attorney's fees under Count I is appropriate and, if so, for a determination of the amount of fees..

SO ORDERED.

Dated: October 16, 2006 ARNJLD HOFFMAN - PLAINTIFF SUPERIOR COURT CUMBERLAND, ss. Attorney for: ARNOLD HOFFMAN Docket No PORSC-CV-2004-00430 SUMNER LIPMAN - WITHDRAWN 08/15/2006 LIPMAN & KATZ & MCKEE, PA 227 WATER STREET DOCKET RECORD PO BOX 1051 AUGUSTA ME 04332-1051

Attorney for: ARNOLD HOFFMAN TRACIE L ADAMSON - WITHDRAWN 08/15/2006 LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051

Attorney for: ARNOLD HOFFMAN BRENDAN RIELLY - RETAINED 05/12/2006 JENSEN BAIRD ET AL 10 FREE STREET PO BOX 4510 PORTLAND ME 04112

vs APPLICATORS SALES AND SERVICE, INC. - DEFENDANT

Attorney for: APPLICATORS SALES AND SERVICE, INC. KATE DEBEVOISE - RETAINED 04/05/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029

Attorney for: APPLICATORS SALES AND SERVICE, INC. LOUIS BUTTERFIELD - RETAINED 04/05/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029

PARADIGM WINDOW SOLUTIONS - DEFENDANT

Attorney for: PARADIGM WINDOW SOLUTIONS KATE DEBEVOISE - RETAINED 04/05/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029

Page 1 of 8 Printed on: 10/18/2006 PORSC-CV-2004-00430 DOCKET RECORD Attorney for: PARADIGM WINDOW SOLUTIONS LOUIS BUTTERFIELD - RETAINED 04/05/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAM) ME 04104-5029

ANDREW SEVIER - DEFENDANT

Attorney for: ANDREW SEVIER KATE DEBEVOISE - RETAINED 04/05/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029

Attorney for: W R E W SEVIER LOUIS BUTTERFIELD - RETAINED 04/05/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAM) ME 04104-5029

RICHARD ROBINOV - DEFENDANT , Attorney for: RICHARD ROBINOV KATE DEBEVOISE - RETAINED 04/05/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029

Attorney for: RICHARD ROBINOV LOUIS BUTTERFIELD - RETAINED 04/05/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029

Filing Document: COMPLAINT Minor Case Type: OTHER CIVIL Filing Date: 07/02/2004

D o c k e t Events: 07/02/2004 FILING DOCUMENT - COMPLAINT FILED ON 07/02/2004 WITH DEMAND FOR JURY TRIAL. NO FEE YET PAID. DB

07/02/2004 Party(s) : ARNOLD HOFFMAN ATTORNEY - RETAINED ENTERED ON 07/02/2004 Plaintiff's Attorney: SUMNER LIPMAN

07/02/2004 Party (s): ARNOLD HOFFMAN ATTORNEY - RETAINED ENTERED ON 07/02/2004 Plaintiff's Attorney: TRACIE L ADAMSON Page 2 of 8 Printed on: 10/18/2006 PORSC-CV-2004-00430 DOCKET RECORD

07/14/2004 Party ( s ) : ARNOLD HOFFMAN SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 07/14/2004

07/14/2004 Party (s): ARNOLD HOFFMAN SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 07/02/2004 UPON APPLICATORS SALES & SERVICE INC. TO LEONARD NELSON ESQ., (LLS)

07/14/2004 Party (s): ARNOLD HOFFMAN SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 07/14/2004

07/14/2004 Party (s): ARNOLD HOFFMAN SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 07/07/2004 UPON ADNREW SEVIER TO MARIA SEVIER HIS WIFE. (LLS)

07/14/2004 Party (s): ARNOLD HOFFMAN SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 07/14/2004

07/14/2004 Party (s): ARNOLD HOFFMAN SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 07/07/2004 UPON RICHARD ROBINOV TO RACHAEL ROBINOV HIS WIFE. (LLS)

07/22/2004 FINDING - REMOVAL TO FEDERAL COURT ENTERED ON 07/22/2004 BY DEFENDANT (GA)

04/06/2006 NOTE - OTHER CASE NOTE ENTERED ON 04/05/2006 COMPLETE FILED RETURNED FROM THE US DISTRICT COURT ON THIS DATE (GM)

04/06/2006 Party(s): APPLICATORS SALES AND SERVICE, INC. ATTORNEY - RETAINED ENTERED ON 04/05/2006 Defendant's Attorney: KATE DEBEVOISE

Party (s): PARADIGM WINDOW SOLUTIONS ATTORNEY - RETAINED ENTERED ON 04/05/2006 Defendant's Attorney: KATE DEBEVOISE

04/06/2006 Party (s): ANDREW SNIER ATTORNEY - RETAINED ENTERED ON 04/05/2006 Defendant's Attorney: KATE DEBEVOISE

Party(s): RICHARD ROBINOV ATTORNEY - RETAINED ENTERED ON 04/05/2006 Defendant's Attorney: KATE DEBEVOISE

04/06/2006 Party(s): APPLICATORS SALES AND SERVICE, INC. ATTORNEY - RETAINED ENTERED ON 04/05/2006 Defendant's Attorney: LOUIS BUTTERFIELD

Party(s): PARADIGM WINDOW SOLUTIONS ATTORNEY - RETAINED ENTERED ON 04/05/2006 Defendant's Attorney: LOUIS BUTTERFIELD

04/06/2006 Party (s): ANDREW SEVIER Page 3 of 8 Printed on: 10/18/2006 PORSC-CV-2004-00430 DOCKET RECORD

ATTORNEY - RETAINED ENTERED ON 04/05/2006 Defendant's Attorney: LOUIS BUTTERFIELD

Party(s): RICHARD ROBINOV ATTORNEY - RETAINED ENTERED ON 04/05/2006 Defendant's Attorney: LOUIS BUTTERFIELD

04/06/2006 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 04/06/2006 THOMAS E DELAHANTY 11, JUSTICE

04/19/2006 Party(s) : ARNOLD HOFFMAN OTHER FILING - OPPOSING MEMORANDUM FILED ON 04/11/2006 OF PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO BIFURCATE AND FOR ATTORNEY'S FEES WITH ATTACHMENTS. AD

04/19/2006 Party(s) : APPLICATORS SALES AND SERVICE, INC.,PARADIGM WINDOW SOLUTIONS,ANDREW SEVIER,RICHARD ROBINOV OTHER FILING - REPLY MEMORANDUM FILED ON 04/19/2006 OF DEFENDANTS' REPLY MEMORANDUM IN SUPPORT OF MOTION TO BIFURCATE AND FOR ATTORNEY'S FEES. AD

04/26/2006 Party(s) : ARNOLD HOFFMAN LETTER - FROM PARTY FILED ON 04/25/2006 FROM DAVID HOFFMAN, ESQ. STATING THIS OFFICE REPRESENTS PLAINTIFF IN THIS MATTER IN WHICH THE COMPLAINT BEFORE THIS COURT WAS FILED BY LIPMAN, KATZ & MCKEE, PA. 227 WATER STREET, AUGUSTA, ME 04332 AS MAINE COUNSEL ON OR ABOUT JUNE 28, 2004. WITHIN THE REQUISITE TIME TO DO SO , AND BEFORE THE UNDERSIGNED COULD MOVE FOR ADMISSION PRO HAC VICE; THE MATTER WAS REMOVED BY DEFES' COUNSEL TO THE MAINE FEDERAL DISTRICT COURT ON FEDERAL QUESTION GROUNDS, WHERE THE MATTER WAS LITIGATED THRU AN APPEAL.AD

05/09/2006 ORDER - COURT ORDER ENTERED ON 05/05/2006 THOMAS E DELAHANTY 11, JUSTICE THIS CASE HAS BEEN REMANDED TO THIS COURT BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE FOR DECISION ON THREE ISSUES: DEFENDANT'S MOTION TO BIFURCATE; DEFENDANT'S MOTION FOR ATTORNEY'S FEES; MOTION TO WITHDRAW BY COUNSEL FOR PLAINTIFF. PLAINTIFF, THROUGH OUT-OF-STATE COUNSEL, HAS RESPONDED TO TH PENDING MOTIONS AND THE REMAND ORDER BY LETTER DATED APRIL 23, 2006; HOWEVER, THE COURT DOES NOT REGARD COUNSEL'S REPLY TO THE MOTIONS TO BE A VALID PLEADING PURSUANT TO THE MAINE RULES OF CIVIL PROCEDURE. COUNSEL FOR PLAINTIFF IS NOT ADMITTED TO PRACTICE IN MAINE. ANY FILINGS OR PLEADINGS MUST STRICTLY COMPLY WITH M.R.CIV.P.89(B). THE COURT WILL CONSIDER DEFENDANT'S MOTIONS TO BIFURCATE AND FOR ATT0RNEY;S FEES PENDING AS OF THE DATE OF THIS ORDER AND AN APPROPRIATE REPLY SHALL BE FILED BY PLAINTIFF WITHIN 21 DAYS OF THE DATE OF THIS ORDER. M.R.CIV.P.y(C)(2). THE MOTION TO WITHDRAW BY LOCAL COUNSEL WAS FILED IN THE USDC PRIOR RECEIPT OF TH E CASE ON REMAND. THE MOTION IS BASED ON THE PREMISE THAT IN THE DISTRICT COURT PLAINTIFF "DOES NOT NEED LOCAL COUNSEL."THE CASE IS NOW PENDING IN THIS COURT WHERE IT WAS ORIGINALLY FILED. THE PRESENCE OF LOCAL COUNSEL IS REQUIRED. 4 M.R.S.A. @807, M.R.CIV.P.ll(A). COUNSEL MAY WITHDRAW SUBJECT TO THE PREREQUISITES OF M.R.CIV.P. 89(A). PLAINTIFF'S PRESENT COUNSEL OF RECORD IS SOLE COUNSEL FOR PLAINTIFF AND MOTIONS ARE PRESENTLY PENDING. THE MOTION TO WITHDRAW IS DENIED WIHTOUT PREJUDICE. THE CLERK SHALL INCORPORATE THIS ORDER INTO THE DOCKET BY REFERENCE. M.R.CIV.P.79(A). SO ORDERED. ON 05- 09-06 COPIES MAILED TO SUMNER LIP- MAN, ESQ., LOUIS BUTTERFIELD AND KATE DEBEVOISE, ESQS. AD

Page 4 of 8 Printed on: 10/18/2006 PORSC-CV-2004-00430 DOCKET RECORD

05/11/2006 Party (s): ARNOLD HOFFMAN MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED ON 05/11/2006 OF TRACIE ADAMSON AND SUMNER LIPMAN, ESQ. AS COUNSEL FOR ARNOLD HOFFMAN. AD

05/12/2006 Party (sl : ARNOLD HOFFMAN OTHER FILING - ENTRY OF APPEARANCE FILED ON 05/12/2006 OF BRENDAN P. REILLY, ESQ. ON BEHALF OF PLAINTIFF ARNOLD HOFFMAN. (DY)

05/12/2006 Party (s): ARNOLD HOFFMAN ATTORNEY - RETAINED ENTERED ON 05/12/2006 Plaintiff's Attorney: BRENDAN RIELLY

05/16/2006 Party (s): ARNOLD HOFFMAN MOTION - MOTION FOR WITHDRAWAL OF CNSL DENIED ON 05/12/2006 THOMAS E DELAHANTY 11, JUSTICE COPIES TO PARTIES/COUNSEL; PLEASE SEE ORDER OF MAY 5TH, 2006. AD

05/19/2006 Party (s): ARNOLD HOFFMAN MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 05/17/2006 THOMAS E DELAHANTY 11, JUSTICE COPIES TO PARTIES/COUNSEL- MOTION GRANTED; NEW (MAINE) COUNSEL HAS ENTEREED AN APPEARANCE AS OF MAY 12, 2006. AD

08/14/2006 Party(s): APPLICATORS SALES AND SERVICE, INC.,PARADIGM WINDOW SOLUTIONS,ANDREW SEVIER,RICHARD ROBINOV OTHER FILING - REQUEST FOR HEARING FILED ON 08/14/2006 OF DEFENDANTS FOR HEARING ON MOTION FOR SUMMARY JUDGMENT (DC)

08/15/2006 Party (s): ARNOLD HOFFMAN ATTORNEY - WITHDRAWN ORDERED ON 08/15/2006 Plaintiff's Attorney: SUMNER LIPMAN

08/15/2006 Party (s): ARNOLD HOFFMAN ATTORNEY - WITHDRAWN ORDERED ON 08/15/2006 Plaintiff's Attorney: TRACIE L ADAMSON

08/29/2006 Party (s): ARNOLD HOFFMAN MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 08/28/2006 OF PLAINTIFF, ARNOLD HOFFMAN MOTION FOR EXTENSION OF TIME WITH INCORPORATED MEMORANDUM OF LAW. AD

08/29/2006 Party (s): ARNOLD HOFFMAN LETTER - FROM PARTY FILED ON 08/28/2006 FROM LOUIS BUTTERFIELD, ESQ. STATING THE PLAINTIFF HAS WAIVED ALL OBJECTIONS TO THE MOTIONS BY OPERATION OF M .R.CIV.P.7 (C) (3). AD

08/30/2006 Party (s): ARNOLD HOFFMAN MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 08/30/2006 THOMAS E DELAHANTY 11, JUSTICE IT IS HEREBY ORDERED THAT PLAINTIFF SHALL FILE HIS RESPONSES TO DEFENDANTS' MOTION TO BIFURCATE AND MOTION FOR ATTORNEYS FEES WITHIN SEVEN DAYS OF TH E DATE OF THIS ORDER. (SEPTEMBER 7 , 2006)NOTWITHSTANDING M.R.CIV.P.6(A). ON 08-30-06 COPIES MAILED TO BRENDAN RIELLY, ESQ. LOUIS BUTTERFIELD, ESQ. AD Page 5 of 8 Printed on: 10/18/2006 PORSC-CV-2004-00430 DOCKET RECORD

09/01/2006 Party ( s ) : ARNOLD HOFFMAN MOTION - MOTION TO ADMIT VISIT. ATTY FILED ON 08/31/2006 OF PLAINTIFF'S MOTION AND INCORPORATEED MEMORANDUM OF LAW FOR ORDER AUTHORIZING DAVID M. HOFFMAN, ESQ. TO APPEAR PRO HAC VICE. AD.

09/05/2006 Party ( 6 ) : ARNOLD HOFFMAN MOTION - MOTION TO ADMIT VISIT. ATTY GRANTED ON 09/05/2006 THOMAS E DELAHANTY 11, JUSTICE IT IS HEREBY ORDERED THAT DAVID M. HOFFMAN BE ADMITTED PRO HAC VICE IN THIS CAPTIONED CASE. SUBJECT TO M.R.CIV.P.89(B). ON 09-05-06 COPIES MAILED TO BRENDAN RIELLY, ESQ. AND LOUIS BUTTERFIELD, ESQ. AD

09/07/2006 Party(s): ARNOLD HOFFMAN OTHER FILING - REPLY MEMORANDUM FILED ON 09/06/2006 OF PLAINTIFFS' MEMORANDUM OF LAW IN RESPONSE TO DEFENDANTS' MOTION TO BIFURCATE AND FOR ATTORNEY'S FEES. WITH EXHIBITS A AND B. AD

09/07/2006 Party(s) : ARNOLD HOFFMAN MOTION - MOTION TO CONTINUE FILED ON 09/05/2006 OF PLAINTIFF, ARNOLD HOFFMAN MOTION FOR CONTINUANCE WITH INCORPORATED MEMORANDUM OF LAW. AD

09/07/2006 Party (6): ARNOLD HOFFMAN LETTER - FROM PARTY FILED ON 09/05/2006 FROM BRENDAN RIELLY, ESQ. NOTIFYING THE COURT THAT DEFENDANTS DO NOT OBJECT TO PLAINTIFF'S MOTION TO ADMIT DAVID HOFFMAN, ESQ. AD

09/11/2006 Party(s) : ARNOLD HOFFMAN DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 09/11/2006 PLAINTIFF'S SUPLLEMENTAL RESPONSE TO DEFENDANTS FIRST REQUEST FOR PRODUCTION OF DOCUMENTS SERVED ON LOUIS BUTTERFIELD ESQ ON 9-8-06 (DC)

09/12/2006 Party(s) : ARNOLD HOFFMAN MOTION - OTHER MOTION FILED ON 09/11/2006 THOMAS E DELAHANTY 11, JUSTICE Defendant's Attorney: LOUIS BUTTERFIELD Plaintiff's Attorney: BRENDAN RIELLY OF PLAINTIFF, ARNOLD HOFFMAN'S MOTION TO SUPPLEMENT SUMMARY JUDGMENT RECORD WITH INCORPORATED MEMORANDUM OF LAW; AFFIDAVIT OF MARTIN BAILEY AND ARTHUR LIBBY. AD DEFENDANTS, MOTION TO BIFURCATE AND FOR ATTORNEY'S FEES. DEFENDANTS, APPLICATOR SALES AND SERVICE, INC. D/B/A PARADIGM WINDOW SOLUTIONS RICHARD ROBINOV AND ANDREW SEVIER MOTION FOR SUMMARY JUDGMENT ON COUNTS I1 AND 111. COURT TAKES MATTER U/A NO RECORD MADE

09/15/2006 Party(s) : ARNOLD HOFFMAN MOTION - MOTION TO CONTINUE GRANTED ON 09/13/2006 THOMAS E DELAHANTY 11, JUSTICE AT THE DIRECTION OF THE COURT, THIS ORDER SHALL BE INCORPORATED INTO THE DOCKET BY REFERENCE. RULE 79(A). ON 09-15-06 COPIES MAILED TO BRENDAN, RIELLY, ESQ. AND LOUIS BUTTERFIELD, ESQ. AD

09/20/2006 Party(s): APPLICATORS SALES AND SERVICE, INC.,PARADIGM WINDOW SOLUTIONS,ANDREW SEVIER,RICHARD Page 6 of 8 Printed on: 10/18/2006 PORSC-CV-2004-00430 DOCKET RECORD

APPLICATORS SALES AND SERVICE, INC.,PARADIGM WINDOW SOLUTIONS,ANDREW SEVIER,RICHARD ROBINOV OTHER FILING - REPLY MEMORANDUM FILED ON 09/19/2006 OF DEFENDANTS REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO BIFURCATE AND FOR ATTORNEY'S FEES. (DY)

09/26/2006 Party (s): APPLICATORS SALES AND SERVICE, INC., PARADIGM WINDOW SOLUTIONS,ANDREW SEVIER,RICHARD ROBINOV OTHER FILING - OPPOSING MEMORANDUM FILED ON 09/26/2006 OF DEFENDANTS TO PLAINTIFF'S MOTION TO SUPPLEMENT SUMMARY JUDGMENT RECORD. (DY)

10/03/2006 Party (S): ARNOLD HOFFMAN OTHER FILING - REPLY MEMORANDUM FILED ON 10/03/2006 OF PLAINTIFF REGARDING HIS MOTION TO SUPPLEMENT THE SUMMARY JUDGMENT RECORD WITH EXHIBIT A. (DY)

10/12/2006 HEARING - OTHER MOTION HELD ON 10/10/2006 THOMAS E DELAHANTY II, JUSTICE Defendant's Attorney: LOUIS BUTTERFIELD Plaintiff's Attorney: BRENDAN RIELLY DEFENDANTS, MOTION TO BIFURCATE AND FOR ATTORNEY'S FEES. DEFENDANTS, APPLICATORS SALES AND SERVICE, INC. D/B/A PARADIGM WINDOW SOLUTIONS RICHARD ROBINOV AND ANDREW SEVIER MOTION FOR SUMMARY JUDGMENT ON COUNTS I1 & 111. AD

10/18/2006 Party (s): ARNOLD HOFFMAN MOTION - OTHER MOTION OTHER DECISION ON 10/16/2006 OF PLAINTIFF, ARNOLD HOFFMAN'S MOTION TO SUPPLEMENT SUMMARY JUDGMENT RECORD WITH INCORPORATED MEMORANDUM OF LAW; AFFIDAVIT OF MARTIN BAILEY AND ARTHUR LIBBY. "PLEASE SEE ORDER OF OCTOBER 16, 2006'' DEFENDANTS, MOTION TO BIFURCATE AND FOR ATTORNEY'S FEES. DEFENDANTS, APPLICATOR SALES AND SERVICE, INC. D/B/A PARADIGM WINDOW SOLUTIONS RICHARD ROBINOV AND ANDREW SEVIER MOTION FOR SUMMARY I JUDGMENT ON COUNTS I1 AND 111. COURT TAKES MATTER U/A NO RECORD MADE

10/18/2006 FINDING - JUDGMENT DETERMINATION ENTERED ON 10/16/2006 THOMAS E DELAHANTY 11, JUSTICE THE CLERK WILL MAKE THE FOLLOWING ENTRIES AS THE DECISION AND ORDER OF THE COURT: A. PLAINTIFF'S MOTION TO SUPPLEMENT THE SUMMARY JUDGMENT RECORD IS DENIED. B. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON COUNTS I1 AND 111 IS GRANTED. C. DEFENDANTS' MOTION TO BIFURCATE IS MOOT AND NO ORDER IS REQUIRED. D. JUDGMENT IS ENTERED FOR U L DEFENDANTS ON COUNTS I1 AND 111. E. DEFENDANTS ARE ENTITLED TO COSTS AS ALLOWED BY RULLE AND STATUTE. F. I THIS CASE IS RETURNED TO THE UNITED STATES DISTRICT COURT FOR

ORDER - SUMMARY JUDGMENT ENTERED ON 10/16/2006 THOMAS E DELAHANTY 11, JUSTICE THE CLERK WILL MAKE THE FOLLOWING ENTRIES AS THE DECISION AND ORDER OF THE COURT: A. PLAINTIFF'S MOTION TO SUPPLEMENT THE SUMMARY JUDGMENT RECORD IS DENIED. B. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON COUNTS I1 AND I11 IS GRANTED. C. DEFENDANTS' MOTION TO BIFURCATE IS MOOT AND NO ORDER IS REQUIRED. D. JUDGMENT IS ENTERED FOR ALL DEFENDANTS ON COUNTS 11 AND III. E. DEFENDANTS ARE ENTITLED TO COSTS AS ALLOWED BY RULE AND STATUTE. F. THIS CASE IS RETURNED TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE FOR A DETERMINATION OF WHETHER AN AWARD OF ATTORNEY'S FEES UNDER COUNT I IS APPROPRIATE AND, IF SO, FOR A DETERMINATION OF THE AMOUNT OF FEES. SO ORDERED. ON 10-18-06 COPIES MAILED TO BRENDAN RIELLY, ESQ. AND LOUIS BUTTERFIELD, ESQ.; MS. DEBORAH FIRESTONE, GOSS MIMEOGRAPH, THE DONALD GARBRECHT LAW LIBRARY; LOISLAW.COM, INC. AD Page 7 of 8 Printed on: 10/18/2006 PORSC-CV-2004-00430 DOCKET RECORD

A TRUE COPY ATTEST :

Page 8 of 8 Printed on: 10/18/2006