United States District Court, D. New Hampshire
Thomas M. Moulton
David Bane and Prime Choice Enterprises, LLC
Thomas M. Moulton, et al. Opinion No. 2015 DNH 204
JOSEPH DiCLERICO, Jr., District Judge.
Thomas M. Moulton brought suit against David Bane and his company, Prime Choice Enterprises, LLC ("PCE"), after their business relationship failed. In response, Bane and PCE brought counterclaims against Moulton and third-party claims against Eric Emery, King's Highway Realty Trust, Ltd. Partnership, and North Madison Hill LLC. Eric Emery moves for summary judgment on the third-party claims brought against him. Bane and PCE concede that they cannot prove the conversion claim against Emery, Count IV, but object to summary judgment on the tortious interference and unjust enrichment claims.
Standard of Review
Summary judgment is appropriate when the moving party "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). "A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case." Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). Reasonable inferences are taken in the light most favorable to the nonmoving party, but unsupported speculation and evidence that "is less than significantly probative" are not sufficient to avoid summary judgment. Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015) (internal quotation marks omitted).
Emery worked as the executive director of real estate and development for a New Hampshire company, The Meat House ("TMH"). TMH experienced financial distress in 2014 and began to close stores. When Emery's paychecks bounced, he began to look for other work.
David Bane was a franchisee of TMH and opened a TMH store in Summit, New Jersey, in 2012. During the winter of 2014, Bane was trying to purchase TMH's assets and to start a new company to operate TMH stores. Through discussions with Bane, Emery understood that he would have a position with Bane's new company. Bane established Prime Choice Enterprises, LLC ("PCE") in March of 2014. On April 15, 2014, PCE acquired TMH's assets in a private, secured party Article 9 sale that was conducted by Centrix Bank. Emery worked for PCE without an employment agreement.
Thomas Moulton was a secured creditor of TMH who had the right to "step in" to manage TMH after TMH's default. Moulton exercised the step in rights on March 6, 2014, and operated TMH through another entity owned by Moulton, North Madison Hill, LLC ("NMH"), along with his associate, Michael Rubin. In that position, Moulton and Rubin facilitated PCE's purchase of TMH's assets and worked with PCE.
Emery knew that Moulton and Bane were working together but did not know the details of their arrangement. Emery developed a good working relationship with Moulton and Rubin. On behalf of PCE, Moulton paid Emery's salary and expenses during March, April, and May of 2014.
Emery was working to get leases for PCE to operate the TMH stores in Scarborough, Maine, and Stratham, New Hampshire. He was aware that the principal owners of the landlords for both stores, Steve Lopilato at Jenty, LLC, in Scarborough and Mark Stebbins at King's Highway Realty in Stratham, were friends of Moulton's. Emery also knew that Moulton was involved in the lease negotiations on behalf of PCE. PCE had signed a lease for the Scarborough store but not for the Stratham store when the relationship between Moulton and Bane broke down.
After PCE purchased TMH assets, PCE learned that Team Funding Solutions asserted ownership of the equipment at the TMH Stratham, New Hampshire, store. PCE negotiated with Ted Reynolds, president of Team Funding Solutions, to settle the claims to the equipment. When Moulton and Bane were no longer working together, Moulton's company, NMH, bought the leased equipment at the Stratham store from Team Funding Solutions.
During May, Emery became concerned because PCE did not have an employer identification number, which was necessary to pay its employees and to obtain permits to reopen TMH stores. Bane told Emery he did not have the number because the website was not operating, but Emery accessed the website himself and found that it was working. Emery also became concerned about how Bane was dealing with Moulton.
After the relationship between Bane and Moulton concluded, Moulton asked Emery to work for Moulton's company, NMH. NMH was operating retail butcher shops at the TMH locations in Scarborough, Maine, and Stratham, New Hampshire. Emery decided to accept Moulton's offer. Emery sent Bane a formal letter of ...