United States District Court, D. New Hampshire
McCafferty, United States District Judge
case now consists of nine claims against two defendants,
including four claims against BMS Cat (“BMS”), a
company with which Sanjeev Lath contracted in the aftermath
of a fire at his unit in the Oak Brook Condominium. Before
the court is Lath's motion for summary judgment on Causes
20 and 21 of his First Amended Complaint
(“FAC”). BMS objects on both procedural and
substantive grounds. For the reasons that follow, Lath's
motion for summary judgment is denied.
arguments the parties make for and against summary judgment
in favor of Lath on Causes 20 and 21 are virtually identical
to those they made with respect to Cause 22. For the same
reasons the court gave in its order denying Lath's motion
for summary judgment on Cause 22, see doc. no. 301,
Lath's motion for summary judgment on Causes 20 and 21 is
also denied, and his motion to strike BMS's surreply is
denied as moot. That said, there are several aspects of this
case that merit attention at this juncture.
20 bears the following heading: “Breach of Implied
Covenant of Good Faith and Fair Dealing - Inventory List not
prepared and maintained and Items disposed.” Doc. no.
24 at 77.
[T]here was an implied covenant of good faith and fair
dealing, that Lath's belongings [would] only be
“packed” and transported to an offsite location
to be cleaned and washed. The implied covenant was to refrain
[sic] BMS Catastrophe Inc., from disposing of any of
. . . .
Lath alleges that there was a second implied covenant in the
Contents Advanced Work Authorization that an accurate list of
inventory would be maintained by BMS Catastrophe Inc. . . .
and such a list would be provided to Lath towards [the] end
of the day [on which BMS packed up his belongings].
Doc. no. 24 at ¶¶ 284 & 286. It is not at all
clear that Lath has stated a claim upon which relief can be
granted for breach of the implied covenant of good faith and
Hampshire, “[i]n every agreement, there is an implied
covenant that the parties will act in good faith and fairly
with one another.” Birch Broad., Inc. v. Capitol
Broad. Corp., 161 N.H. 192, 198 (2010) (citing
Livingston v. 18 Mile Point Drive, Ltd., 158 N.H.
619, 624 (2009)). As the Birch Broadcasting court further
In New Hampshire, there is not merely one rule of implied
good-faith duty, but a series of doctrines, each of which
serves a different function. [Livingston, 158 N.H. at 624].
The various implied good-faith obligations fall into three
general categories: (1) contract formation; (2) termination
of at-will employment agreements; and (3) limitation of
discretion in contractual performance. Id.
N.H. at 198. As for the third category, which is applicable
here, the rule is that
under an agreement that appears by word or silence to invest
one party with a degree of discretion in performance
sufficient to deprive another party of a substantial
proportion of the agreement's value, the parties'
intent to be bound by an enforceable contract raises an
implied obligation of good faith to observe reasonable limits