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Johnson v. The Capital Offset Company, Inc.

United States District Court, First Circuit

September 25, 2013

Alford Johnson as Trustee of the Martha Wood Trust,
v.
The Capital Offset Company, Inc., Jay Stewart, Stephen Stinehour, and Acme Bookbinding Company, Inc. No. 2013 DNH 128.

ORDER

JOSEPH A. DiCLERICO, Jr., District Judge.

Alford Johnson, as the trustee of the Martha Wood Trust, brought suit against The Capital Offset Company, Inc.; its president, Jay Stewart; a consultant who later worked for Capital Offset, Stephen Stinehour; and Acme Bookbinding Company, alleging claims arising from the publication of a photography book, Spiritual Passports.[1] Stinehour moves for summary judgment on Johnson's claims against him. Johnson objects.

In his reply, Stinehour states that he "incorporates by reference the arguments of Capital Offset and Jay Stewart as to the opinions of plaintiff's experts' Donald Mazzella, Susan Cox and Frank Biancalana...." As is discussed in the orders on the motions for summary judgment filed by Capital Offset and Stewart and Acme, Mazzella was not shown to have scientific, technical, or specialized knowledge that would allow him to give opinions about the methods and technical processes of bookbinding. For that reason, his opinion about the effect of the absence of glue traps was not considered. The opinions of Cox and Biancalana were not properly challenged and, therefore, were not restricted.

Johnson did not respond to Stinehour's reference to the expert testimony issue. For the reasons stated in the prior orders on summary judgment, Mazzella's opinion on the effect of the absence of glue traps will not be considered for purposes of Stinehour's motion for summary judgment.

Standard of Review

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing that there is an absence of evidence to support the nonmoving party's case.'" OneBeacon Am. Inc. Co. v. Commercial Union Assurance Co. of Canada , 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)).

In deciding a motion for summary judgment, the court draws "all reasonable inferences in favor of the non-moving party while ignoring conclusory allegations, improbable inferences, and unsupported speculation." Pruco Life Ins. Co. v. Wilmington Tr. Co., 721 F.3d 1, 6-7 (1st Cir. 2013) (internal quotation marks omitted). "A genuine issue is one that can be resolved in favor of either party, and a material fact is one which has the potential of affecting the outcome of the case." Jakobiec v. Merrill Lynch Life Ins. Co. , 711 F.3d 217, 223 (1st Cir. 2013).

Background

Johnson, as trustee of the Martha Wood Trust, began working on a project to produce a book of photographs that had been taken by Johnson's wife, Martha Wood, shortly before her death. Johnson hired Susan Cox to work with him on the design and production of the book. Frank Biancalana also worked on the project with Cox. The photography book is titled Spiritual Passports.

Cox and Biancalana had previously had another book printed by Stephen Stinehour at Stinehour Press. Stinehour worked with Johnson, Cox, and Biancalana during the Spiritual Passports project.[2] In 2007, Stinehour recommended that Johnson hire Capital Offset to print Spiritual Passports, which he did.

Stinehour became an employee of Capital Offset in January of 2008. Although Stinehour remembers telling Cox in the fall of 2008 that he was working for Capital Offset, Cox represents that she first learned of Stinehour's employment at Capital Offset in a letter from Stinehour dated January 17, 2009. Johnson first learned of Stinehour's employment at Capital Offset in August of 2009 during the printing of Spiritual Passports. Stinehour was also involved in Capital Offset's decision to hire Acme to bind Spiritual Passports.

Johnson contends that most of the books produced have defects in the printing or binding. Stinehour contends that the majority of the books are properly printed and bound.

Discussion

Johnson brings claims of negligence, negligent misrepresentation, intentional misrepresentation, and breach of fiduciary duty against Stinehour. Stinehour moves for summary ...


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