Johnson v. Puritan Press, Inc.

2014 DNH 247

• Court: District Court, D. New Hampshire
• Decided: December 1, 2014
• Docket: 11-cv-459-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alford Johnson, as Trustee of the Martha Wood Trust

v. Civil No. 11-cv-459-JD Opinion No. 2014 DNH 247 Puritan Press, Inc. d/b/a Puritan Capital

O R D E R

Alford Johnson, as the trustee of the Martha Wood Trust,

brought suit against The Capital Offset Company, Inc., which is

now Puritan Capital; its president, Jay Stewart; a consultant who

later worked for Puritan Capital, Stephen Stinehour; and Acme

Bookbinding Company, alleging claims arising from the printing

and binding of a photography book, Spiritual Passports. Puritan

Capital, Stewart, and Stinehour move, in limine, to exclude

certain evidence of damages. Johnson objects.

Background

This case was scheduled for trial in March of 2014 and the

final pretrial conference was scheduled for February 6, 2014, but

was continued. Before the trial date was continued, the parties

filed pretrial materials, including motions in limine. Puritan

Capital, Stewart, and Stinehour moved to exclude certain evidence

of damages claimed by Johnson. In response, Johnson agreed that

certain costs associated with producing Spiritual Passports were

not recoverable because he intended to reproduce the book and those costs would not be wasted for purposes of reproducing the

book.

In the order denying the defendants’ motion, the court noted

that Johnson agreed to exclude the listed amounts, which left

only seventeen items in dispute, listed in Appendix A to the

order. After analyzing the seventeen disputed items, the court

concluded that those amounts were incurred in preparation to

produce Spiritual Passports and were recoverable as damages. The court also noted that Johnson had acknowledged he could not

recover damages both for wasted efforts in producing the original

book and for costs of reproducing the book. The court required

Johnson to elect which damages he would seek at trial.

On June 19, 2014, Johnson elected to seek damages for the

costs of wasted efforts in producing the original book. In the

notice of his election, Johnson stated that when he responded to

the defendants’ motion in limine seeking to exclude those

damages, he intended to reproduce the book and for that reason he

did not object to excluding evidence of costs that would not have

been wasted if he had reproduced the book. Having decided not to

reproduce the book, Johnson stated that he intended to claim as

damages the costs that he previously agreed not to pursue. The

defendants did not respond to Johnson’s notice of election of

damages.

2 Discussion

The defendants move to exclude evidence of the costs that

Johnson previously agreed not to pursue on the ground that those

costs are claimed as damages only because Johnson decided not to

reproduce the book and the defendants did not cause him to make

that decision.1 They also argue that those costs cannot be

recovered as damages because Johnson is required to mitigate his

damages by reproducing the book.

A. Causation

The disputed costs are for services Johnson obtained in

preparation for producing Spiritual Passports, which include

payments to Susan Cox for art direction for the book, payments to

a “writer,” a translation of the book into Spanish, and print

images for the book. A reproduced book would have used the

results of those services, just as the original book did. The

defendants argue that those costs, which Johnson now claims as

damages, are not attributable to them because they did not cause

Johnson to decide not to reproduce the book.

1 The defendants wisely do not argue that Johnson is estopped from claiming the costs that he previously abandoned, because a theory of judicial estoppel would be difficult to establish in the circumstances of this case. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 170 (2010); Healey v. Spencer, 765 F.3d 65, 76 (1st Cir. 2014).

3 Without a reproduced book, Johnson contends that those

services were wasted in the same way other costs of producing the

book were wasted. Johnson contends that the defendants caused

the book to be so badly printed and bound that it was a total

loss and that all of the costs of producing the book were wasted.

For that reason, Johnson contends that the defendants caused him

to lose all of the costs of producing the book, including the

costs that might not have been lost if he had pursued a reproduction.

The defendants’ argument that they did not cause Johnson not

to reproduce the book misses the point. Johnson’s damages theory

is that all of the costs of producing the original book were

wasted because of the defendants’ actions, omissions, and

misrepresentations, unless some of those services were useful for

reproducing the book. Without a reproduced book, however, no

savings based on those services exist. Therefore, Johnson need

not show that the defendants caused him not to reproduce the book

to recover the disputed costs.

B. Mitigation

The defendants also argue that Johnson cannot introduce

evidence of the disputed costs because he is required to mitigate

his losses by reproducing the book. The defendants reason that

if the disputed costs would not be lost if the book were

reproduced, then Johnson is required to reproduce the book to

4 avoid that loss. Having chosen not to reproduce the book, the

defendants assert, Johnson cannot claim the disputed costs as

Under New Hampshire law, “[a]s a general rule, plaintiffs

may not recover damages for harm that could have been avoided

through reasonable efforts or expenditures.” Flanagan v.

Prudhomme, 138 N.H. 561, 575 (1994); accord Grenier v. Barclay

Square Commercial Condo. Owners’ Ass’n, 150 N.H. 111, 119 (2003). In the context of breach of contract, the claimant “must take

such measures to lessen his or her losses as can be effectuated

with reasonable effort and without undue risk.” Audette v.

Cummings, 165 N.H. 763, 768 (2013). “The defendants bear the

burden of proving that the plaintiff failed to mitigate damages.”

Grenier, 150 N.H. at 119; accord Audette, 165 N.H. at 768; see

also Parem Contracting Corp. v. Welch Const. Co., Inc., 128 N.H.

254, 259-60 (1986).

To succeed on the mitigation defense, the defendants would

have to show that Johnson could have avoided the loss of the

disputed costs by reproducing the book and that reproducing the

book would have entailed only reasonable effort and expenditures.

The motion in limine does not provide that proof. Therefore, the

defense of mitigation of damages does not preclude Johnson from

introducing damages evidence.

5 Conclusion

For the foregoing reasons, the defendants’ motion in limine

to exclude certain evidence of damages (document no. 175) is

denied.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge December 1, 2014

cc: Lawrence F. Boyle, Esq. Gary M. Burt, Esq. Anthony M. Campo, Esq. Thomas J. Pappas, Esq. Arnold Rosenblatt, Esq. Mark W. Shaughnessy, Esq. William N. Smart, Esq.