¶1Evans v . Taco Bell CV-04-103-JD 09/23/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
¶2Wendy Evans et a l .
¶3 v. Civil N o . 04-cv-103-JD Opinion N o . 2005 DNH 132 Taco Bell Corp.
¶4 O R D E R
¶5 Taco Bell Corp. has moved for summary judgment on the
¶6plaintiff’s claims for injuries she allegedly suffered upon
¶7learning that an employee of a Taco Bell restaurant she and her
¶8family patronized had been diagnosed with Hepatitis A . The
¶9plaintiff, Wendy Evans (“Evans”), who brought the suit as a
¶10putative class action, objects to summary judgment in its
¶11entirety. Taco Bell has filed a reply to Evans’s objection.
¶12 Taco Bell has also moved to strike one of the declarations
¶13submitted in support of Evans’s objection to summary judgment.
¶14Finally, Taco Bell has moved for sanctions against Evans and her
¶15counsel on the ground that her previous objection to the summary
¶16judgment motion, which sought relief on the basis of Fed. R. Civ.
¶17P. 56(f) and which the court denied in an order of June 3 0 , 2005,
¶18violated Fed. R. Civ. P. 11(b). Evans has filed an objection to
¶19both the motion to strike and the motion for sanctions. Taco
¶20Bell has made reply to the objection to the motion to strike. Background
¶21 Taco Bell argues in its reply that Evans’s memorandum
¶22supporting her objection to the summary judgment motion fails to
¶23comply with Local Rule 7.2(b)(2), which provides: A memorandum in opposition to a motion for summary judgment shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial. All properly supported material facts set forth in the moving party’s factual statement shall be deemed admitted unless properly opposed by the adverse party.
¶24Rather than incorporating the “short and concise statement”
¶25required by this rule, Evans’s memorandum consists entirely of
¶26argument as to the existence of what she views as genuine issues
¶27of material fact precluding summary judgment on each of her
¶28theories of recovery.
¶29 Although Evans supports each section of her argument with
¶30record citations, this court has previously ruled that summary
¶31judgment briefs that “go directly to arguing their positions,
¶32referring to certain facts as they pertain to each section of
¶33argument, rather than following the more customary (and helpful)
¶34format of prefacing argument with a statement of all the
¶35underlying facts of the case” fail to comply with Local Rule
¶36 2 7.2(b)(2)’s mandate for a “short and concise statement of
¶37material facts.” Ulmann v . Anderson, 2004 DNH 7 3 , 2004 WL
¶38883221, at *1 n.2 (D.N.H. Apr. 2 6 , 2004); see also Young v .
¶39Plymouth State Coll., 1999 WL 813887, at *1 n.2 (D.N.H. Sept. 2 1 ,
¶401999) (noting that factual statement which includes “argument and
¶41legal characterizations” does not comply with rule). Because Evans’s memorandum objecting to the summary judgment motion does
¶42not comply with L.R. 7(b)(2), all of the properly supported
¶43material facts set forth in Taco Bell’s memorandum in support of
¶44the motion are deemed admitted for purposes of this order.1
¶45 Evans, her husband, and their three minor daughters consumed
¶46food that she had purchased from the Taco Bell restaurant in
¶47Derry, New Hampshire, for dinner on February 7 , 2004. Within
¶48hours, the entire Evans family fell ill, suffering variously from
¶49nausea, stomach pains, diarrhea, fever, dehydration, and headaches. These symptoms began to subside after four or five
¶50days but persisted in less severe form for about two weeks.
¶51 Aside from a call to a doctor, who opined that the family
¶52had probably been stricken by “one of those flu bugs that goes
¶53 1 On multiple occasions over the course of this litigation, the court has rebuked Evans’s counsel for their disregard of the Local Rules. See 2005 DNH 1 0 4 , 2005 WL 1592984, at *4 n.7 (D.N.H. June 3 0 , 2004) (order on Evans’s motion for Rule 56(f) relief); 2004 WL 103995 (D.N.H. Apr. 2 1 , 2004), at *2 n.1 (order on Evans’s first motion for remand).
¶54 3 around,” Evans Dep. at 1 7 , the Evanses did not seek any medical
¶55care for these symptoms. Just over a week after consuming the
¶56Taco Bell food, however, two of Evans’s daughters began
¶57experiencing a “scaly and bumpy rash” on their upper bodies. Id.
¶58at 2 6 . Evans took her daughters to a doctor, who prescribed a
¶59cream and oral antibiotics during an initial visit and a different cream in a later visit. The rash lasted for about a
¶60week. Recovered from their maladies, the Evans family consumed
¶61food purchased from the Derry Taco Bell again on February 2 1 ,
¶622004. After this meal, the Evanses felt “a bit sick” and
¶63underwent “the regular diarrhea type of stuff” but did not
¶64experience any other symptoms. Id. at 4 2 . No physician has ever
¶65told Evans that the rash or any of the other symptoms she or any
¶66of her family members experienced during this time were related
¶67to eating food from Taco Bell. On February 2 5 , 2004, an employee of the Taco Bell
¶68restaurant in Derry, New Hampshire, was diagnosed with Hepatitis
¶69A. That same day, Taco Bell notified the New Hampshire
¶70Department of Health and Human Services, which immediately began
¶71an investigation. Following the investigation, D r . Jesse F.
¶72Greenblatt, the chief of the Department’s Bureau of Disease
¶73Control, recommended to the State Commissioner of Health and
¶74Human Services that he “issue a Health Advisory through the
¶75 4 Health Alert Network and issue a public alert through the media.”
¶76Greenblatt Aff. ¶ 7 . Greenblatt explains that these actions were
¶77intended to “inform clinicians of a case of Hepatitis A in a food
¶78handler; advise of a public Hepatitis A . . . immunoglobulin
¶79clinic and to recommend additional vigilance regarding Hepatitis
¶80A screening.” Id. ¶ 8 . The Department issued a notice to this effect on February 2 7 , 2004, urging those who had patronized the
¶81Derry Taco Bell during a certain time period in February 2004, to
¶82receive immunoglobulin injections.2 At Taco Bell’s expense, the
¶83Department set up a public clinic for this purpose at each of
¶84three different locations in southern New Hampshire.
¶85 Evans, her husband, and their three daughters all received
¶86immunoglobulin injections at one of the public clinics on or
¶87about February 2 9 , 2004. None of the Evanses was feeling ill at
¶88that time. The inoculation Evans received “hurt because [it] had to go into a deep tissue muscle” in her arm, which continued to
¶89hurt for a few days. Evans Dep. at 4 6 . She also recalls
¶90observing two of her daughters cry as a result of their
¶91inoculations and that each of her children continued to feel pain
¶92 2 Neither party points to any evidence in the summary judgment record which fixes the starting and ending dates of this period. For purposes of this motion, the court will assume that the period ran from February 7 , 2004, through February 2 1 , 2004, as alleged in the complaint.
¶93 5 in her arm for more than a week afterward. She does not recall,
¶94however, any other symptoms that she or her family experienced as
¶95a result of the injections.
¶96 The Evans family also underwent testing for Hepatitis A ,
¶97although it is unclear whether this occurred before or after
¶98their inoculations.3 Evans explains that her family “got tested because we were all scared and wanted to know” and because her
¶99youngest daughter needed the testing to enroll in a new
¶100kindergarten program. Id. at 4 2 . The testing, which involved
¶101having blood drawn at the office of the Evans’s family physician,
¶102cost almost $400 per person and was not covered by insurance.
¶103About a week after having the tests, the family received the
¶104results, indicating that none of them had Hepatitis A .
¶105 In fact, during the 180-day period following the diagnosis
¶106of Hepatitis A in the Derry Taco Bell employee, no cases of the disease arising from exposure to food from the restaurant were
¶107reported to the state Department of Health and Human Services.
¶108New Hampshire law at the time required any diagnosis of Hepatitis
¶109A to be reported to the department within twenty-four hours.
¶110N.H. Code Admin. R. Ann. He-P 301.02(a)(1)(I) (2004). Given the
¶111 3 The only evidence submitted on this point consists of excerpts from Evans’s deposition in which she said she could not remember when the testing occurred.
¶112 6 passage of time since the employee’s diagnosis, there will be no
¶113future occurrences of the disease arising from exposure to food
¶114from the Derry Taco Bell. There is also no evidence that the
¶115infected employee contracted the disease at the restaurant.
¶116 Evans filed a declaration and petition for class action4 in
¶117Rockingham County Superior Court against Taco Bell on March 1 1 , 2004. 5 At that point, Evans claimed to be “in fear and
¶118experiencing emotional trauma associated with the potential of
¶119contracting the disease” and from observing her children worry
¶120about contracting the disease. Compl. ¶¶ 23-24. In addition to
¶121the symptoms she experienced after eating food from the Derry
¶122Taco Bell on February 7 , 2004, the complaint alleges that Evans
¶123had been suffering from persistent nausea, headaches, and a
¶124darkening of her urine “[s]ince learning of her family’s possible
¶125exposure to Hepatitis A and receiving the inoculation . . . .” Id. ¶ 1 7 . Evans therefore claims “damages for physical pain,
¶126physical symptoms, fear and emotional distress.” Id. ¶ 2 4 . Her
¶127complaint asserts seven separate counts against Taco Bell:
¶128(I) negligence, (II) strict liability, (III), breach of fiduciary
¶129 4 To avoid confusion, the court will use the term “complaint” to refer to this document. 5 The complaint also named a number of other defendants whom Evans has since voluntarily dismissed from the case without prejudice.
¶130 7 duty, (IV) breach of warranty, (V) violation of the New Hampshire
¶131Consumer Protection Act, Revised Statutes Annotated (“RSA”)
¶132358-A:2, (VI) vicarious liability, and (VII) enhanced
¶133compensatory damages.
¶134I. Taco Bell’s Motion to Strike
¶135 Taco Bell has moved to strike the declaration of Sue A .
¶136Taylor, M.D., submitted by Evans in connection with her objection
¶137to the motion for summary judgment. Taylor is a physician in
¶138Dover, New Hampshire, specializing in endocrinological disorders,
¶139who has counted among her patients one Joan Karakostas.
¶140Karakostas and her friend, Sherrie Daneau, ate at the Derry Taco
¶141Bell once between February 7 , 2004, and February 9, 2004, and
¶142again on February 1 4 , 2004. Both claim to have begun suffering
¶143“a variety of symptoms” in the weeks that followed, including
¶144severe stomach pain, diarrhea, vomiting, aches and pains, and a
¶145darkening of their urine. Each submits a report of blood testing
¶146conducted in mid-September, 2004, showing a positive result for
¶147the presence of the Hepatitis A antibody.
¶148 Based on this testing, together with two other blood tests
¶149Karakostas had previously undergone and the symptoms she claims
¶150to have experienced starting in late February and early March,
¶1512004, Taylor opines that, during that period, “Karakostas could
¶152 8 have been suffering from an acute case of Hepatitis A.” Taylor Aff. ¶ 1 3 . Pursuant to Fed. R. Civ. P. 37(c)(1), Taco Bell moves to strike this opinion, and Taylor’s affidavit in its entirety as undisclosed expert testimony. Evans protests that such a sanction is inappropriate because, inter alia, the court has yet to set any deadline for the disclosure of experts.
¶153 The court need not resolve this issue, however, because Taylor’s opinion, and indeed the entire issue of whether Karakostas had Hepatitis A , is irrelevant. Karakostas is not a party to this action–-only Evans i s . To be sure, Evans has filed the case as a putative class action, seeking to represent everyone exposed to Hepatitis A as a result of patronizing the Derry Taco Bell in February, 2004. But unless and until the court certifies such a class, the potential claims of putative class members other than the named plaintiff are simply not before the court.6 See generally 1 Alba Conte & Herbert B .
¶154 6 It is well-settled that, absent prejudice to the plaintiff, a court may decide a defendant’s motion for summary judgment in a putative class action before taking up the issue of class certification. See, e.g., Curtin v . United Airlines, Inc., 275 F.3d 8 8 , 92-93 (D.C. Cir. 2001); Cowen v . Bank United of Tex., FSB, 70 F.3d 9 3 7 , 941-42 (7th Cir. 1995); Wright v . Shock, 742 F.2d 5 4 1 , 543-44 (9th Cir. 1984); Santana v . Deluxe Corp., 12 F. Supp. 2d 1 6 2 , 179 (D. Mass. 1998); Ramirez v . DeCoster, 194 F.R.D. 3 4 8 , 355 (D. M e . 2000). Here, no prejudice to either Evans or the putative class members is apparent, and Evans has not objected to having the summary judgment motion decided before
¶155 9 Newberg, Newberg on Class Actions § 1.3, at 19-20 (4th ed. 2002).
¶156 Whether someone other than Evans or the members of her
¶157family contracted Hepatitis A from eating at the Derry Taco Bell,
¶158then, has no bearing on Taco Bell’s motion for summary judgment,
¶159which addresses the only claims that comprise the action at this
¶160point–-hers. See Massey v . Zema Sys. Corp., 1998 WL 708913, at *6 n.6 (N.D. Ill. Sept. 3 0 , 1998) (deciding pre-certification
¶161summary judgment motion by examining claims as they related only
¶162to named plaintiffs rather than to other putative class members);
¶163accord Rutan v . Republican Party of Ill., 868 F.2d 943, 947 (7th
¶164Cir. 1989) (“Because no class of plaintiffs . . . [was]
¶165certified, only the named plaintiffs . . . are before this court.
¶166Therefore, we treat plaintiffs’ claims as being brought solely by
¶167the named plaintiffs” in reviewing motion to dismiss for failure
¶168to state claim) (citation omitted), rev’d in part on other grounds, 497 U.S. 62 (1990). The proferred evidence tending to
¶169show that Karakostas (or Daneau) had Hepatitis A simply cannot
¶170create a genuine issue of material fact. Accordingly, Taco
¶171Bell’s motion to strike Taylor’s affidavit is denied as moot,
¶172since the court has found it to be irrelevant.
¶173the motion for class certification.
¶174 10 II. Taco Bell’s Motion for Summary Judgment A. Standard of Review
¶175 On a motion for summary judgment, the moving party has the
¶176burden of showing the absence of any genuine issue of material
¶177fact. See Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986).
¶178If the movant does s o , the court must then determine whether the
¶179non-moving party has demonstrated a triable issue. Anderson v .
¶180Liberty Lobby, Inc., 477 U.S. 2 4 2 , 256 (1986). In ruling on a
¶181motion for summary judgment, the court must view the facts in the
¶182light most favorable to the non-moving party, drawing all
¶183reasonable inferences in that party’s favor. E.g., J.G.M.C.J.
¶184Corp. v . Sears, Roebuck & Co., 391 F.3d 3 6 4 , 368 (1st Cir. 2004);
¶185Poulis-Minott v . Smith, 388 F.3d 3 5 4 , 361 (1st Cir. 2004).
¶186 B. Discussion
¶187 Taco Bell seeks summary judgment on Evans’s claims on a
¶188number of theories. First, Taco Bell argues that Evans cannot
¶189show that it breached any duty to her in the ways alleged in the
¶190complaint and therefore cannot recover in negligence. Taco Bell
¶191also argues that, even if Evans did have some evidence of such a
¶192breach, she has no proof that she suffered any compensable injury
¶193as a result. Taco Bell contends that Evans’s strict liability,
¶194breach of warranty, and Consumer Protection Act claims cannot
¶195 11 succeed for lack of evidence that the food she purchased from the
¶196Derry Taco Bell was defective. Finally, Taco Bell argues that it
¶197does not owe any fiduciary duty to Evans as a matter of law.
¶198 1. The Negligence Claim
¶199 Evans’s objection to Taco Bell’s summary judgment motion
¶200sets forth a detailed recitation of evidence that she believes
¶201demonstrates breaches of duty by Taco Bell. Specifically, Evans
¶202argues that, at the Derry restaurant, Taco Bell permitted
¶203employees to handle food with bare hands, rather than requiring
¶204them to wear gloves for that purpose; failed to implement or
¶205enforce appropriate hand-washing procedures; and inadequately
¶206trained the employee who contracted Hepatitis A about the perils
¶207of the disease. Mem. Opp’n Mot. Summ. J. §§ II.B, D.7
¶208 The court will assume for purposes of this order that
¶209genuine issues of material fact exist as to whether Taco Bell
¶210breached its duties in the ways Evans asserts. To survive
¶211summary judgment on her negligence claim, however, Evans must
¶212also show a genuine issue of material fact as to whether any of
¶213those alleged breaches proximately caused the injuries she
¶214 7 Evans’s brief in opposition to the summary judgment motion does not contain any Section II.C.
¶215 12 complains o f . See, e.g., Brookline Sch. Dist. v . Bird, Inc., 142
¶216N.H. 3 5 2 , 356 (1997); Doucette v . Town of Bristol, 138 N.H. 205,
¶217210 (1993). A defendant’s negligent conduct is the proximate
¶218cause of the plaintiff’s injury when the injury would not have
¶219occurred but for the conduct, i.e., was its cause-in-fact, and
¶220the conduct was a substantial factor in bringing about the injury, i.e., was its legal cause. Carnigan v . N.H. Int’l
¶221Speedway, Inc., 151 N.H. 409, 414 (2004); Estate of Joshua T . v .
¶222New Hampshire, 150 N.H. 405, 407-408 (2003).
¶223 Despite its considerable length, Evans’s objection to the
¶224summary judgment motion largely ignores Taco Bell’s arguments
¶225that she has no proof linking its alleged negligence to her
¶226claimed injuries. Indeed, the objection does not advance any
¶227argument whatsoever as to how Taco Bell’s allegedly derelict
¶228handwashing practices or training of the Hepatitis A-stricken employee contributed to Evans’s claimed injuries. Mem. Opp’n
¶229Mot. Summ. J. §§ II.B.3. Evans does contend that Taco Bell’s
¶230failure to require employees at its Derry location to wear gloves
¶231when handling food “increased the risk of transmission of the
¶232Hepatitis A virus . . . to patrons [there] during February 2004
¶233thereby necessitating the inoculation and intervention on behalf
¶234of those patrons . . . .” Mem. Opp’n Mot. Summ. J. at 18-19.
¶235Because she and her family received inoculations at one of the
¶236 13 clinics provided for that purpose, she suggests that Taco Bell’s
¶237breach caused injury to her in the form of the accompanying pain.
¶238 As support for this theory, Evans relies solely on a
¶239February 2 7 , 2004, e-mail message which appears to have been
¶240distributed to members of the Department’s “outbreak team.” This
¶241e-mail reported that employees of the Derry Taco Bell were not wearing gloves while preparing food or serving it to patrons and
¶242that the infected worker had been performing these tasks while
¶243suffering from symptoms of Hepatitis A.8 The e-mail also noted
¶244that “hygiene techniques included the use of a hand sanitizer,”
¶245but that the federal Center for Disease Control (the “CDC”) had
¶246indicated that a sanitizer should not be used in place of gloves.
¶247Hutchins Aff. ¶ 2 , Ex. 8 at 8 . The e-mail goes on to state that
¶248one “Dr. Talbot consulted with the CDC for this situation and
¶249determined that it was recommended that the intervention consist of immune globulin (IG) clinics to be implement [ s i c ] for
¶250potentially exposed patrons.” Id. at 6.
¶251 Evans suggests that this e-mail creates a genuine issue of
¶252material fact as to whether the Department decided to recommend
¶253inoculations for those who had patronized the Derry Taco Bell
¶254 8 A report submitted by a Department official following his visit to the Derry Taco Bell that morning expressed his conclusion that “barehand contact was permitted” there. Hutchins Aff. ¶ 2 , Ex. 8 , at 10-11.
¶255 14 during the relevant period based on the conclusion that the
¶256restaurant did not make its employees wear gloves while handling
¶257food. The court disagrees. Evans presents no developed argument
¶258as to how the e-mail, either directly or inferentially, shows
¶259that Taco Bell’s alleged failure to require gloves at its Derry
¶260store affected the Department’s decision.9 She also has not come forth with any other proof explaining the Department’s actions.10
¶261 Standing alone, the e-mail simply reflects the fact that the
¶262Department was aware, at the time it decided to recommend
¶263inoculations, that the Derry employees apparently had not been
¶264 9 The e-mail itself also does not appear to constitute admissible evidence within the meaning of Fed. R. Civ. P. 56(e). Both the e-mail and the third-party statements within it appear to be hearsay. Furthermore, the e-mail has been submitted as an exhibit to the affidavit of Evans’s counsel, who does not purport to have any personal knowledge which could serve to authenticate the document or attest to circumstances of its creation which might satisfy the requirements of any hearsay exception. Because Taco Bell has not moved to strike or otherwise objected to the inclusion of the e-mail in the summary judgment record, the court has nevertheless considered the document in ruling on the motion. See Perez v . Volvo Car Corp., 347 F.3d 303, 314 (1st Cir. 2002). 10 In fact, the only other record evidence touching on the Department’s decision consists of Greenblatt’s affidavit, in which he states that he made a recommendation to the Department commissioner following an investigation that involved meetings with the infected worker and her family, other Taco Bell employees, community representatives, and others. Greenblatt makes no mention of what role, if any, the advice of the CDC or even the discovery that the employees were not required to wear gloves played in recommendation, let alone the commissioner’s decision to act on i t .
¶265 15 wearing gloves. There is nothing to suggest that, had Taco Bell
¶266mandated glove use at its Derry location, the Department would
¶267have recommended an intervention short of inoculation for those
¶268who had eaten there and thus spared Evans the associated pain.
¶269She has therefore failed to adduce any proof tending to show that
¶270Taco Bell’s allegedly negligent conduct in this regard was the cause-in-fact of her claimed injuries. C f . Bronson v . Hitchcock
¶271Clinic, 140 N.H. 7 9 8 , 801 (1996).
¶272 Evans has also failed to adduce any proof tending to show
¶273that Taco Bell’s asserted breach was the legal cause of her
¶274complained-of injuries. This showing, also essential to recovery
¶275in negligence, requires that the breach constitute “a substantial
¶276factor, rather than a slight one” in producing the injury.
¶277N . Bay Council, Inc., Boy Scouts of Am. v . Bruckner, 131 N.H.
¶278538, 548 (1989) (citing Restatement (Second) of Torts § 431 cmt. a (1977)); see also Pillsbury-Flood v . Portsmouth Hosp., 128 N.H.
¶279299, 304 (1986). Even if it could be inferred, from the e-mail’s
¶280reference to the apparent non-use of gloves among employees at
¶281the Derry Taco Bell, that this practice played a role in the
¶282Department’s decision–-an inference which, for the reasons just
¶283discussed, is not reasonable--there is no evidence to suggest
¶284that its role in the decision was substantial. The e-mail
¶285therefore fails to create a genuine issue of material fact as to
¶286 16 whether Taco Bell’s alleged negligence in permitting its Derry
¶287employees to handle food with bare hands was the legal cause of
¶288Evans’s claimed injuries. See Island Shores Estates Condo. Ass’n
¶289v . City of Concord, 136 N.H. 3 0 0 , 305 (1992) (affirming dismissal
¶290of negligence claim where threat of injury to plaintiff would
¶291have existed regardless of defendant’s alleged breach). Evans’s only other theory attempting to link Taco Bell’s
¶292alleged negligence with any harm to her proceeds from the fact
¶293that she and her family began suffering from gastrointestinal and
¶294related symptoms soon after eating dinner purchased from the
¶295Derry Taco Bell on February 7 , 2004. She argues that the short
¶296period of time between the consumption of the food and the onset
¶297of the symptoms, together with the nature of the symptoms,
¶298creates a genuine issue of material fact as to whether the food
¶299caused the symptoms.11 Generally, however, “mere correlation between ingestion and illness is insufficient as a matter of law
¶300to establish causation.” Wilson v . Circus Circus Hotels, Inc.,
¶301710 P.2d 7 7 , 79 (Nev. 1985); see also, e.g., Minder v . Cielito
¶302Lindo Rest., 136 Cal. Rptr. 915, 918 (Cal. C t . App. 1977); Mann
¶303v . D.L. Lee & Sons, Inc., 537 S.E.2d 683, 684 (Ga. C t . App.
¶304 11 Evans does not argue that the rash that appeared on two of her daughters one week after their Taco Bell meal could have been caused by the food as a matter of common experience, and the summary judgment record contains no evidence to that effect.
¶305 17 2000); Griffin v . Schwegmann Bros. Giant Supermkts., 542 S o . 2d
¶306710, 712-13 (La. C t . App. 1989); 4 Louis R. Frumer & Melvin I .
¶307Friedman, Products Liability § 48.21[2][a], at 48-123 (1960 &
¶3082002 supp.). As one court has remarked in reversing the denial
¶309of summary judgment for the defendant on a similar theory: The mere fact that the plaintiff became nauseous about one-half hour after consuming some of the [food obtained from the defendant] is insufficient to withstand the defendant’s motion for summary judgment. There are many different causes of nausea, vomiting and stomach distress. The plaintiff’s evidence of impurity leaves her proof in the realm of speculation and conjecture.
¶310Valenti v . Great Atl. & Pac. Tea Co., 615 N.Y.S.2d 8 4 , 85 (N.Y. App. Div. 1994) (internal quotation marks and citations omitted).
¶311 Evans has not come forward with any authority or argument suggesting that New Hampshire would depart from this wellaccepted rule.12 C f . Elliot v . Lachance, 109 N.H. 4 8 1 , 485-86
¶312 12 One of the New Hampshire cases Evans cites in support of her theory merely stands for the proposition that expert testimony is not required to demonstrate the proximate cause of an injury when “the cause and effect are so immediate, direct and natural to common experience as to obviate any need for an expert medical opinion.” Reed v . County of Hillsborough, 148 N.H. 5 9 0 , 592 (2002) (ruling that expert testimony might not be necessary to show that elderly woman’s fall on sidewalk caused abrasions). As Valenti and like authorities have persuasively reasoned, digestive problems often result from causes other than what was just eaten, so an association between the two cannot be said to be “immediate, direct, and natural to common experience.” In Lamontagne v . Lamontagne, 100 N.H. 237 (1956), the other case Evans cites on this point, “[t]he defendant raised no question
¶313 18 (1969) (overturning verdict awarding damages allegedly caused by
¶314defective product in absence of evidence that defect caused
¶315claimed injuries because “[t]he mere fact that the plaintiff
¶316suffered injuries is not sufficient to justify such a
¶317conclusion”) (internal quotation marks omitted). She also has
¶318not come forward with any evidence linking Taco Bell’s products to her symptoms apart from the temporal proximity between when
¶319she consumed the food and when she began suffering from
¶320gastrointestinal distress. In fact, the only record evidence
¶321suggesting the etiology of her symptoms at all consists of her
¶322account of her doctor’s statement that the family probably had
¶323the flu. Evans has failed to show a genuine issue of material
¶324fact as to whether Taco Bell’s asserted negligence proximately
¶325caused her claimed symptoms.
¶326 Evans’s objection to the summary judgment motion does not advance any other theory connecting her other categories of
¶327alleged damages to any misfeasance by Taco Bell. This
¶328shortcoming extends to her claim for fear and emotional distress
¶329. . . as to the sufficiency of the evidence to establish causal connection between the accident and the plaintiff’s subsequent complaints.” Id. at 238. Instead, the defendant challenged the jury’s award of damages given the severity of the plaintiff’s injuries, and the court rejected this challenge based in part on the absence of evidence of any other cause for them, because the plaintiff had previously been in good health. Id. at 238-39. Lamontagne is therefore inapposite here.
¶330 19 over her family’s possible exposure to Hepatitis A . Putting that
¶331issue aside for the moment, however, the court notes that the
¶332nature of this claim itself presents a serious problem.
¶333 The New Hampshire Supreme Court has held, in a case
¶334rejecting a remarkably similar claim, that “regardless of
¶335physical impact, in order to recover for emotional distress under a traditional negligence theory, the plaintiff must demonstrate
¶336physical symptoms of her distress.” Palmer v . Nan King Rest.,
¶337147 N.H. 6 8 1 , 684 (2002). Despite the physical symptoms
¶338enumerated in her complaint, Evans has not responded to the
¶339summary judgment motion with evidence that her claimed emotional
¶340distress had any physical effects.13 Instead, she contends that
¶341she “is entitled to recover emotion [ s i c ] distress damages with
¶342[ s i c ] establishing proof of physical manifestation,”
¶343notwithstanding Palmer. Mem. Opp’n Mot. Summ. J. at 3 4 . The plaintiff in Palmer bit into a used band-aid while
¶344eating food prepared by the defendant, causing her “physical and
¶345 13 Nor does Evans assert a claim for negligent infliction of emotional distress. To recover under such a theory, a plaintiff must “demonstrate physical symptoms of [her] distress regardless of physical impact.” O’Donnell v . HCA Health Servs. of N.H., Inc., ___ N.H. ___, 2005 WL 2152506, at *2 (N.H. Sept. 8 , 2005) (emphasis added). The ensuing discussion, then, is confined to a claim of negligence which seeks damages for resulting emotional distress, rather than a claim of negligent infliction of emotional distress.
¶346 20 mental revulsion, as well as extreme anxiety that she might have contracted an infectious disease.” 147 N.H. at 682 (internal quotation marks omitted). After testing negative for both HIV and hepatitis, the plaintiff brought claims of negligence, strict products liability, and breach of warranty against the defendant. Id. She did not, however, claim to have suffered any physical injury. Id. The trial court granted summary judgment for the defendants on the ground that “there was no evidence that the plaintiff had experienced any physical injury from her anxiety.” Id. The supreme court expressly rejected the plaintiff’s contention on appeal that “because the ‘band-aid’ in her mouth constituted physical impact, an emotional distress claim need not be predicated upon physical symptoms of her anxiety.” Id. at 698. In so holding, the court noted that it had refused the same argument in Thorpe v . New Hampshire, 133 N.H. 299 (1990), where the plaintiff, like Palmer, had also suffered a physical impact but had not alleged any physical injury. 147 N.H. at 684.
¶347 Evans seeks to distinguish Palmer and Thorpe in the first instance on the ground that, in addition to her alleged emotional distress, she does claim damages for the physical injury she suffered in receiving the immunoglobulin injection.14 As Taco
¶348 14 Evans also seeks to distinguish these cases on the ground that they did not consider the availability of damages for
¶349 21 Bell points out in its reply brief, however, Evans does not assert that her claimed emotional distress resulted from her inoculation, but rather from her ingestion of food which she later learned could have potentially been contaminated with Hepatitis A . Because her alleged emotional distress did not follow from any physical injury, Evans’s negligence claim suffers from the same fatal defect as those of the plaintiffs in Palmer and Thorpe: it seeks damages for emotional distress unaccompanied by either physical injury or physical symptoms. The fact that she also seeks damages for physical injury which did not itself produce her claimed emotional distress does not entitle her to recover in spite of the rule laid down in those cases.15
¶350 An examination of the genesis of the rule in New Hampshire
¶351makes this point clear. In Chiuchiolo v . New England Wholesale
¶352Tailors, 84 N.H. 329 (1930), the court scrutinized the rule in
¶353some jurisdictions “disallowing recovery for the consequences of
¶354emotional distress under products liability and breach of warranty theories. For reasons that will appear, the court need not address this argument. See Parts II.B.2-II.B.3, infra. 15 Furthermore, as previously discussed, Evans has failed to show a genuine issue of material fact connecting her claimed physical injuries to Taco Bell’s allegedly wrongful acts. Even if her theory were correct as a legal matter, then, Taco Bell would still be entitled to summary judgment.
¶355 22 fright caused by negligence when there is no physical impact.”
¶356Id. at 332. Recognizing the rule as a departure from general
¶357principles of tort damages, the court proceeded to consider
¶358whether any sound policy rationale existed to justify such an
¶359exception. Id. at 333-34. The court identified “[t]he only
¶360possibly adequate reason” in this regard as “that in the long run justice will be better promoted with . . . the exception, because
¶361otherwise this would open a wide door for unjust claims, which
¶362could not successfully be met.” Id. at 334 (internal quotation
¶363marks omitted).
¶364 After finding this rationale wanting, the court declined to
¶365uphold the rule. Id. at 335. Nevertheless, the court held that If the rule is founded on policy, the argument for expediency, regarded as unsustained in cases of fright resulting in serious consequences, is maintained where there are no such consequences. A rule of liability would impose undue burdens and go beyond the practical needs of recovery for another’s negligence. When there are no consequences of fright, the fright can be regarded only as a momentary and transient disturbance, and as either too lacking in seriousness or as giving too great an extension of legally wrongful conduct to warrant the imposition of liability.
¶366Id. at 338. Many years later, the court explained the outcome in
¶367Chiuchiolo as reflecting the fact that it “was not persuaded that
¶368abolishing the ‘impact rule’ would cause a proliferation of
¶369fraudulent claims and create liability disproportionate to
¶370culpability.” Corso v . Merrill, 119 N.H. 6 4 7 , 655 (1979).
¶371 23 Instead, the Chiuchiolo court recognized that simply limiting
¶372recovery to cases of emotional distress with “serious
¶373consequences” would serve to mitigate such undesirable effects
¶374while remaining “responsive to a fair sense of justice.” 84 N.H.
¶375at 335; see also Young v . Abalene Pest Control Servs., Inc., 122
¶376N.H. 2 8 7 , 290 (1982) (Douglas, J., dissenting). The rule allowing recovery for emotional distress marked by
¶377physical symptoms, then, rests on the assumption that the
¶378symptoms “guarantee that the claim is not spurious” just as well
¶379as physical impact does. William Lloyd Prosser & W . Page Keeton,
¶380Prosser & Keeton on the Law of Torts § 5 4 , at 362 (5th ed. 1984);
¶381see also Palmer, 147 N.H. at 683 (declining to revisit this
¶382assumption). But physical injury can provide no such guarantee
¶383when it has not itself caused the emotional distress for which
¶384the plaintiff seeks recovery, but simply resulted from the same tortious conduct. As Prosser and Keeton have explained, “[w]ith
¶385a cause of action established by the physical harm . . . it is
¶386considered sufficient assurance that the mental injury is not
¶387feigned.” Prosser & Keeton, supra, § 5 4 , at 363; see also id. at
¶388361 (noting that recovery is generally disallowed for “mental
¶389disturbance, without accompanying physical injury, illness or
¶390other physical consequences . . .”) (emphasis added). In the
¶391absence of such an assurance, whether in the form of physical
¶392 24 injury or physical manifestation, New Hampshire law simply does
¶393not permit recovery for emotional distress.16
¶394 Furthermore, even if New Hampshire did allow damages for
¶395emotional distress unaccompanied by physical injury or symptoms,
¶396Evans has still failed to link her alleged emotional distress to
¶397any negligent act on the part of Taco Bell. To recover for emotional distress, like any other kind of damages, a plaintiff
¶398must show that they were proximately caused by the defendant’s
¶399negligence. E.g., Corso, 119 N.H. at 656; Chiuchiolo, 84 N.H. at
¶400333. Again, Evans charges that Taco Bell deviated from
¶401applicable standards of care by failing to require its employees
¶402at the Derry store to wear gloves, by failing to implement and
¶403enforce appropriate hand-washing policies, and by failing to
¶404train the infected employee about the perils of Hepatitis A .
¶405There is no evidence, however, that any of these failures contributed to Evans’s anxiety over whether she or her family had
¶406contracted the disease by eating food from the Derry Taco Bell.
¶407 Indeed, there is no evidence that Evans even became aware of
¶408the allegedly derelict sanitation practices at the restaurant
¶409 16 As Prosser and Keeton note, some jurisdictions permit recovery for emotional distress based on other kinds of “special circumstances” which also serve to guarantee genuineness. Prosser & Keeton, supra, § 5 4 , at 362; see also Young, 122 N.H. at 290. Evans does not cite any such circumstances here.
¶410 25 during the time she was living in fear of having been exposed to
¶411Hepatitis A . Those practices therefore could not have caused or
¶412contributed to cause her claimed emotional distress as a logical
¶413matter. Instead, as Evans herself suggests in her objection, her
¶414fear of having the disease arose “[s]ometime after learning that
¶415an employee at the Taco Bell had contracted hepatitis . . . .” Mem. Opp’n Mot. Summ. J. at 3 8 . But Evans does not argue that
¶416Taco Bell breached any duty to her merely by having somebody
¶417infected with Hepatitis A work at one of its restaurants. She
¶418has therefore failed to demonstrate a genuine issue of fact as to
¶419whether Taco Bell’s asserted negligence caused her alleged
¶420emotional distress.17 See Pichowicz v . Hoyt, 2000 DNH 4 0 , 2000
¶421WL 1480445, at *3-*4 (D.N.H. Feb. 1 1 , 2000) (denying claim for
¶422fear of contracting disease allegedly arising from consumption of
¶423water contaminated by defendant without proof that fear “substantially caused or contributed to by the contamination”).
¶424 For the foregoing reasons, Evans has failed to demonstrate a
¶425genuine issue of fact as to whether Taco Bell’s alleged breaches
¶426of duty, assuming that such breaches occurred, proximately caused
¶427her claimed damages. Taco Bell is therefore entitled to summary
¶428 17 For the same reason, Evans has also failed to demonstrate a genuine issue of material fact linking her family’s expenses in getting tested for Hepatitis A to Taco Bell’s asserted negligence.
¶429 26 judgment on Evans’s negligence claim.
¶430 2. The Strict Liability Claim
¶431 Evans acknowledges that, to recover on her strict liability
¶432theory, she must prove that “the product was in a defective
¶433condition (when it left the defendant’s hands), the defect made
¶434the product unreasonably dangerous, and that the defect was the
¶435proximate cause of [her] injuries.” Mem. Opp’n Mot. Summ. J. at
¶43638 (citing Buckingham v . R.J. Reynolds Tobacco Co., 142 N.H. 8 2 2 ,
¶437825-26 (1998), McLaughlin v . Sears, Roebuck & Co., 111 N.H. 265,
¶438267 (1971), and Buttrick v . Lessard, 110 N.H. 3 6 , 39 (1969)).
¶439She proceeds to argue that she has avoided summary judgment on
¶440this claim by coming forward with evidence that the food she
¶441purchased from the Derry Taco Bell had been touched by the bare
¶442hands of an employee infected with Hepatitis A . According to
¶443Evans, this alleged fact rendered the food both defective and
¶444unreasonably dangerous as required to hold Taco Bell strictly
¶445liable under New Hampshire law. See id. §§ III.a–-III.b.
¶446 Evans’s objection, however, does not address how this
¶447claimed defect caused her any harm. As discussed at length in
¶448the analysis of Evans’s negligence claim, Part II.B.1, supra, the
¶449record discloses no genuine issue of material fact linking Taco
¶450Bell’s alleged failure to require the employees at its Derry
¶451 27 location to wear gloves with any of her claimed injuries.
¶452Thus, assuming, without deciding, that Evans has shown a genuine
¶453issue of material fact as to whether the food she purchased from
¶454Taco Bell was both defective and unreasonably dangerous, her
¶455strict liability claim still cannot proceed given the absence of
¶456evidence that the alleged defect caused her any injury. As Evans has acknowledged, causation is an essential element of this
¶457claim. Taco Bell is therefore entitled to summary judgment on
¶458Evans’s strict liability claim. See Willard v . Park Indus.,
¶459Inc., 69 F. Supp. 2d 2 6 8 , 272-73 (D.N.H. 1999).
¶460 3. The Breach of Warranty Claim
¶461 Evans also acknowledges that, insofar as she seeks recovery
¶462for personal injury under her breach of warranty theory, she must
¶463show that such damages “proximately result[ed] from the breach.”
¶464Mem. Opp’n Mot. Summ. J. at 47 (citing N.H. Rev. Stat. Ann.
¶465§§ 382-A:2-714–-715 and Xerox Corp. v . Hawkes, 124 N.H. 6 1 0 , 616
¶466(1984)); see also Elliot, 109 N.H. at 485-86. Again, Evans
¶467argues that she has demonstrated a genuine issue of material fact
¶468as to whether Taco Bell breached implied warranties of
¶469merchantability and fitness for purpose by serving food handled
¶470by an employee infected by Hepatitis A while she was not wearing
¶471gloves, but offers nothing to connect this alleged breach to any
¶472 28 of her claimed physical injuries. Like Evans’s negligence and
¶473strict liability claims, her breach of warranty claim cannot
¶474proceed in the absence of any such evidence. See Willard, 69 F.
¶475Supp. 2d at 274; Elliot, 109 N.H. at 485-86.
¶476 Evans also argues that she can recover what she paid for
¶477the allegedly unmerchantable and unfit goods under her breach of warranty theory. N.H. Rev. Stat. Ann. § 382-A:2-714(2). Her
¶478complaint, however, does not claim the cost of the goods
¶479purchased from Taco Bell as a category of loss sustained or
¶480damages sought by Evans. In fact, the complaint expressly states
¶481that Evans “claims damages for physical pain, physical symptoms,
¶482fear and emotional distress.” Compl. ¶ 2 4 . Evans does not
¶483allege to have suffered economic losses of any kind in the
¶484complaint, whether in setting forth her breach of warranty claim
¶485or otherwise. C f . id. ¶ 25 (alleging that other class members “may have claims for medical bills, lost wages, lost time from
¶486school, and actual contraction of the Hepatitis A virus”).
¶487Moreover, at her deposition in this matter, Evans was asked,
¶488“Other than what you paid for [the] blood tests, are there any
¶489other out-of-pocket costs that you have occurred associated with
¶490the allegations in this lawsuit?” Evans Dep. at 6 3 . Her
¶491 29 response was, “I don’t remember.”18 Id.
¶492 The First Circuit has held that a plaintiff’s failure to
¶493“implicate the relevant legal issues in his complaint” with
¶494regard to a theory of recovery may prevent him from raising that
¶495theory in response to summary judgment. McLane, Graf, Raulerson
¶496& Middleton, P.A. v . Rechberger, 280 F.3d 2 6 , 38 (1st Cir. 2002);
¶497accord, e.g., Opals on Ice Lingerie v . Bodylines, Inc., 2002 WL
¶498718850, at *4 (E.D.N.Y. Mar. 5 , 2002) (“courts have consistently
¶499ruled that it is inappropriate to raise new claims for the first
¶500time in opposition to summary judgment”) (quotation marks
¶501omitted). As another district court in this circuit has
¶502recognized, this rule is necessary because “[f]airness dictates
¶503that the defendant[] be given a minimum degree of forewarning as
¶504to the underlying basis of the relief sought.” Ocaso, S.A.,
¶505Compania de Seguros y Reaseguros v . P.R. Mar. Shipping Auth., 915
¶506F. Supp. 1244, 1253 (D.P.R. 1996). Accordingly, Evans’s failure
¶507to mention, either in her complaint or in providing discovery as
¶508to her damages, that she was seeking to recover the cost of
¶509purchasing the allegedly unmerchantable and unfit goods prevents
¶510 18 Evans’s initial disclosures in this matter, which Taco Bell has submitted to the court together with its motion for summary judgment, also make no reference to the cost of the food or any other category of economic damages. C f . Fed. R. Civ. P. 26(a)(1)(C) (requiring “a computation of any category of damages claimed by the disclosing party . . . .”)
¶511 30 her from avoiding summary judgment by claiming those damages now.
¶512Taco Bell is therefore entitled to summary judgment on Evans’s
¶513breach of warranty claim.
¶514 4. The Consumer Protection Act Claim
¶515 New Hampshire’s Consumer Protection Act prohibits, in
¶516relevant part, “any unfair or deceptive act or practice in the
¶517conduct of any trade or commerce within this state.” N.H. Rev.
¶518Stat. Ann. § 358-A:2. Evans suggests that Taco Bell engaged in
¶519such behavior through its “[l]ocal advertising,” which gave her
¶520the “expect[ation] that the Derry restaurant operated in
¶521compliance with state food handling and safety requirements.”
¶522Mem. Opp’n Mot. Summ. J. at 5 1 . Although the discussion of the
¶523Consumer Protection Act claim in Evans’s objection does not say
¶524how this expectation was defeated, the court assumes that, once
¶525again, she believes Taco Bell acted unfairly and deceptively by
¶526allowing the employees at its Derry location to handle food with
¶527their bare hands in spite of the statements in Taco Bell’s
¶528advertising. Taco Bell argues that these circumstances do not
¶529amount to a violation of RSA 358-A:2. The court agrees.
¶530 As Evans recognizes, “‘[t]o be actionable [under RSA 358-
¶531A : 2 ] , the objectionable conduct must attain a level of rascality
¶532that would raise an eyebrow of someone inured to the rough and
¶533 31 tumble of the world of commerce.’” Mem. Opp’n Mot. Summ. J. at
¶53451 (quoting Anheuser-Busch, Inc. v . Caught-on-Bleu, Inc., 2003
¶535DNH 1 2 7 , 2003 WL 21715330, at *6 (D.N.H. Jul. 2 2 , 2003), aff’d,
¶536105 Fed. Appx. 285 (1st Cir. 2004), cert. denied, 125 S . C t . 1639
¶537(2005)) (further internal quotation marks omitted). The New
¶538Hampshire Supreme Court has held that the statute’s prohibition
¶539extends to misrepresentations made in the course of a business
¶540transaction. Snierson v . Scruton, 145 N.H. 7 3 , 81 (2000)
¶541(applying RSA 358-A:2 to real estate agent’s false statements
¶542about property on which plaintiffs reasonably relied in deciding
¶543to buy i t ) . Evans also points out that RSA 358-A:2 itself
¶544defines deceptive acts or practices to include “[r]epresenting
¶545that goods or services have . . . characteristics, ingredients,
¶546uses, [or] benefits . . . that they do not have” and
¶547“[r]epresenting that goods . . . are of a particular standard, quality, or grade . . . if they are of another.” N.H. Rev. Stat.
¶548Ann. §§ 358-A:2, V and VII.
¶549 Although Evans hints at a misrepresentation theory in her
¶550affidavit submitted in response to the summary judgment motion,
¶551she does not relate any statement by Taco Bell that its food
¶552meets the rigors of “state food safety and handling requirements”
¶553o r , for that matter, any particular standards. Instead, she
¶554claims to have developed an expectation to this effect “based, in
¶555 32 large part, on representations made by Taco Bell in its national,
¶556regional and local advertising promoting the quality of Taco Bell
¶557restaurants generally and their food in particular.”19 Evans
¶558Aff. ¶ 6. Such a vague account of the content of Taco Bell’s
¶559advertising simply cannot support a Consumer Protection Act claim
¶560based on Taco Bell’s allegedly false statements. See Kalik v . Abacus Exch., Inc., 2001 DNH 1 9 2 , 2001 WL 1326581, at *8-*9
¶561(D.N.H. Oct. 1 9 , 2001) (granting summary judgment against RSA
¶562358-A:2 claim premised on misrepresentations in absence of
¶563evidence of any material misstatements). Because Evans does not
¶564offer any other theory supporting this claim, Taco Bell is
¶565entitled to summary judgment on i t .
¶566 5. The Breach of Fiduciary Duty Claim
¶567 19 Evans’s counsel has submitted a printout from Taco Bell’s website as a purported example of the company’s advertising, though Evans herself does not claim that she has ever seen the site or even that it resembles the advertising to which she was exposed. In any event, the website itself contains no representations that Taco Bell adheres to any particular standards in preparing its food. Instead, the site makes general statements like, “we take great pride and care to provide you with the best food and dining experience in the quick service restaurant business.” Mem. Opp’n Mot. Summ. J., Ex. 1 0 , at 1 . Such general claims to superiority, known as “puffery,” do not amount to actionable representations. See Clorox C o . P.R. v . Proctor & Gamble Commercial Co., 228 F.3d 2 4 , 38 (1st Cir. 2000) (noting that puffery cannot support false advertising claim).
¶568 33 Evans contends that a genuine issue of material fact exists
¶569as to whether Taco Bell owed her a fiduciary duty, based on her
¶570assertions that she placed “confidence in Taco Bell’s assurances
¶571of quality and safety” and that “[t]he preparation of the subject
¶572food was exclusively in the control of [Taco Bell] at the time it
¶573was served in February 2004.” Mem. Opp’n Mot. Summ. J. at 4 6 . The court agrees with Taco Bell that this argument is frivolous.
¶574 “‘A fiduciary relationship . . . exists wherever influence
¶575has been acquired and abused or confidence has been reposed and
¶576betrayed.’” Lash v . Cheshire County Sav. Bank, Inc., 124 N.H.
¶577435, 437 (1984) (quoting Cornwell v . Cornwell, 116 N.H. 205, 209
¶578(1976)). Contrary to Evans’s sweeping construction, however, the
¶579term “confidence” in this context does not equate with simple
¶580reliance on another to perform a bargained-for service, but
¶581denotes “a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due
¶582regard to the interests of the one reposing the confidence.” Id.
¶583at 439 (emphasis added; internal quotation marks omitted).
¶584 Thus, fiduciary duties have been recognized as running from
¶585trustee to beneficiary, from guardian to ward, from agent to
¶586principal, from attorney to client, and among partners.
¶587Restatement (Second) of Trusts § 2 cmt. b (1959). It is obvious
¶588that the relationship between a fast food restaurant and its
¶589 34 patrons is not of this character, even if the patrons have come
¶590to depend on the restaurant for quality meals. C f . Schneider v .
¶591Plymouth State Coll., 144 N.H. 4 5 8 , 462 (N.H. 1999) (recognizing
¶592college’s fiduciary duty to student to prevent sexual harassment
¶593by faculty because “[t]he relationship between students and those
¶594that teach them is built on a professional relationship of trust and deference, rarely seen outside the academic community”).
¶595Evans does not provide any authority to the contrary. Taco Bell
¶596is therefore entitled to summary judgment on her breach of
¶597fiduciary duty claim.
¶598 6. The Remaining Claims
¶599 Evans asserts claims entitled “vicarious liability” and
¶600“enhanced compensatory damages” as separate counts of her
¶601complaint. Given the absence of a genuine issue of material fact
¶602tending to show any conduct on the part of Taco Bell’s employees
¶603for which Evans can recover her claimed damages, see Part II.B.1,
¶604supra, the vicarious liability claim necessarily fails.
¶605Similarly, as Evans acknowledges, enhanced compensatory damages
¶606are just that, i.e., “‘simply the actual damages incurred,
¶607estimated by the more liberal rule that prevails in the case of
¶608malicious wrongs.’” Mem. Opp’n Mot. Summ. J. at 52 n.11 (quoting
¶609Nollet v . Palmer, 2002 DNH 136, 2002 WL 1674379, at *2 (D.N.H.
¶610 35 July 1 8 , 2002)) (further internal quotation marks omitted).
¶611Because Evans has not shown a genuine issue of material fact as
¶612to whether Taco Bell’s allegedly wrongful actions caused her
¶613claimed damages, she cannot recover enhanced compensatory
¶614damages. Accordingly, summary judgment must enter on these
¶615claims as well. Taco Bell’s motion for summary judgment is therefore granted in its entirety.
¶616III. Taco Bell’s Motion for Sanctions
¶617 Finally, Taco Bell seeks sanctions against Evans and her
¶618counsel under Fed. R. Civ. P. 11(c)(1)(A) on the ground that her
¶619“Rule 56(f) Objection to Defendant’s Motion for Summary Judgment”
¶620was presented in violation of Fed. R. Civ. P. 11(b)(1). Evans
¶621objects to sanctions because, first, she was not provided the
¶622opportunity to withdraw or correct her motion afforded by Fed. R.
¶623Civ. P. 11(c)(1)(A) and, second, the Rule 56(f) objection was not
¶624in fact presented “for an improper purpose, such as to harass or
¶625cause unnecessary delay or needless increase in the cost of
¶626litigation” as prohibited by Fed. R. Civ. P. 11(b)(1).
¶627 Evans filed her 56(f) objection on April 2 2 , 2005.
¶628Treating the objection as a motion, Taco Bell filed its own
¶629objection to i t , accompanied by a memorandum of law, on April 2 8 ,
¶630 36 2005. The memorandum asked that Evans’s “request for relief
¶631under Rule 56(f) be denied, that plaintiff be ordered to file its
¶632[ s i c ] opposition to defendant’s motion [for summary judgment] by
¶633a date certain and all Court costs and attorney’s [ s i c ] fees be
¶634taxed against the plaintiff.” Mem. O b j . Mot. for Relief at 6.
¶635 More than two months later, the court issued an order denying Evans’s motion for 56(f) relief. 2005 DNH 1 0 4 , 2005 WL
¶6361592984 (D.N.H. June 3 0 , 2004). Noting that Taco Bell had
¶637requested fees and costs in its objection, the court stated: Insofar as Taco Bell seeks an order requiring Evans to pay its attorneys’ fees incurred in connection with responding to the Rule 56(f) application, the request must be made through a separate motion. Fed. R. Civ. P. 11(c)(1)(A); L.R. 7.1(a)(1). Based on the foregoing analysis, however, it appears that Evans’s Rule 56(f) request might have been presented “to cause unnecessary delay or needless increase in the cost of litigation” in violation of Rule 11(a)(b)(1). This gives the court particular concern in light of the history of this litigation and the prior admonitions to Evans’s counsel by both the magistrate and the court itself. Accordingly, if Taco Bell wishes to pursue the issue of sanctions against Evans’s counsel in connection with the Rule 56(f) objection, it shall do so by motion pursuant to Fed. R. Civ. P. 11(c)(1)(A). It is unfortunate that the resources of the court and the parties have had to expended on an issue that never should have been a problem in this case.
¶638Id. at * 7 . Taco Bell filed its motion for sanctions on July 1 3 ,
¶6392005, asking that the court order Evans to pay the $3,131 in
¶640attorneys’ fees it claims to have expended in responding to the
¶641request for Rule 56(f) relief.
¶642 37 Rule 11(c)(1)(A) states, in relevant part, that a motion for
¶643sanctions “shall not be filed with or presented with the court
¶644unless, within 21 days after service of the motion . . . the
¶645challenged paper . . . is not withdrawn or appropriately
¶646corrected.” This provision establishes “a type of ‘safe harbor’
¶647in that a party will not be subject to sanctions on the basis of another party’s motion unless, after receiving the motion, it
¶648refuses to withdraw that position.” Fed. R. Civ. P. 11 advisory
¶649committee’s note (1993). Evans argues that, because Taco Bell
¶650did not serve her with its motion for sanctions before filing i t ,
¶651let alone twenty-one days in advance of that date, she has been
¶652deprived of Rule 11(c)(1)(A)’s safe harbor and that, as a result,
¶653the motion must be denied outright. See, e.g., Brickwood
¶654Contractors, Inc. v . Datanet Eng’g, Inc., 369 F.3d 385, 389-90
¶655(4th Cir. 2004) (en banc); Elliot v . Tilton, 64 F.3d 213, 216 (5th Cir. 1995); 2 James Wm. Moore et a l . , Moore’s Federal
¶656Practice § 11.22[1][b], at 11-40 (3d ed. 1997 & 2002 supp.).
¶657 In response, Taco Bell acknowledges that Evans did not get
¶658the benefit of the safe harbor provision, but rejoins that the
¶659First Circuit has not interpreted Rule 11(c)(1)(A) as stringently
¶660as other circuits have. See Nyer v . Winterthur Int’l, 290 F.3d
¶661456, 460 n.6 (1st Cir. 2002) (noting that, while motion for
¶662sanctions in response to baseless motion to amend not served on
¶663 38 plaintiff’s counsel before filing, he “had approximately three
¶664months to reconsider and withdraw the motion to amend” before it
¶665was denied as moot “but chose not to do so,” and therefore “the
¶666purposes of the safe harbor provision could no longer be
¶667effectuated because [the attorney] had lost his opportunity to
¶668reverse course”); Silva v . Witschen, 19 F.3d 725, 729 n.4 (1st Cir. 1994) (treating defense attorney’s comments to plaintiff’s
¶669counsel, in response to receiving copy of complaint before
¶670filing, that suit was unjustified and defendants intended to seek
¶671attorneys’ fees, as “substantially equivalent warning” to safe
¶672harbor). Nyer, however, rejected the appellant’s safe harbor
¶673argument because he had failed to raise it in response to the
¶674motion for sanctions in the district court, 290 F.3d at 4 6 0 ,
¶675while in Silva the sanction was imposed pursuant to the former
¶676version of Rule 1 1 , which lacked any safe harbor provision.20 19 F.3d at 727-29. Thus, neither case squarely addressed whether
¶677sanctions may be imposed on a motion that was not served at least
¶678twenty-one days before filing, as occurred here. In this court’s
¶679view, the dicta from Nyer and Silva cannot overcome the weight of
¶680contrary authority and the clear language of Rule 11(c)(1)(A)
¶681 20 The Silva court nevertheless discussed the current version of Rule 11 because the appellant argued that it should be retroactively applied in his case. 19 F.3d at 727-29.
¶682 39 itself. Because Evans did not get the benefit of the safe harbor
¶683provision, Taco Bell’s motion for sanctions must be denied.
¶684 In the absence of this procedural problem, however, the
¶685court would not hesitate to impose the sanctions requested by
¶686Taco Bell. Despite submitting an eleven-page affidavit in
¶687support of Evans’s request for Rule 56(f) relief, her counsel, Peter Hutchins, offered virtually no explanation of how the
¶688discovery outstanding at the time would have affected the outcome
¶689of Taco Bell’s motion for summary judgment. 2005 WL 1592984, at
¶690*6-*7. Furthermore, the objection itself contained the
¶691assertions that transcripts of depositions which had already been
¶692taken at that point would not be available until twenty days
¶693later, and that Evans’s counsel should thereafter be entitled to
¶694an additional two or three weeks to review and index the
¶695transcripts before having to respond to Taco Bell’s summary judgment motion. The court has previously noted that these
¶696assertions strike the court as disingenuous. Id. at *6 & n.14.
¶697Because three of the four depositions forming the basis of the
¶698request for Rule 56(f) relief had already occurred before the
¶699request was filed, and because Hutchins could come up with no
¶700explanation as to the relevance of any of the other discovery
¶701outstanding at that point, the apparent purpose of the request
¶702was to cause unnecessary delay in the resolution of the motion
¶703 40 for summary judgment, or to cause Taco Bell to expend additional
¶704attorneys’ fees in responding, in violation of Rule 11(b)(1).
¶705 Furthermore, Evans’s lawyers on a number of occasions during
¶706this litigation have engaged in conduct that included a chronic
¶707disregard for the Local Rules and motion practice that the
¶708magistrate has deemed frivolous. See note 1 , supra, and accompanying text; 326 F. Supp. 2d 2 1 4 , 219 (D.N.H. 2004)
¶709(recounting magistrate’s rulings on Evans’s first motion to
¶710remand and her objection to the pro hac vice admission of one of
¶711Taco Bell’s attorneys). In light of this history, and the nature
¶712of the Rule 11 violation itself, payment of Taco Bell’s
¶713attorneys’ fees in responding to the request for Rule 56(f)
¶714relief would have been the appropriate sanction. As this court
¶715has stated time and time again, all counsel who appear before it
¶716are expected to be familiar with the Local Rules and to conduct their practice in conformity therewith. When counsel fail to do
¶717s o , the result is often the unnecessary expenditure of time and
¶718resources by the court, opposing counsel, and the parties.
¶719 Conclusion
¶720 For the foregoing reasons, Taco Bell’s motion for summary
¶721judgment (document n o . 43) is GRANTED. Taco Bell’s motion for
¶722sanctions (document n o . 58) is DENIED. Taco Bell’s motion to
¶723 41 strike (document n o . 63) is DENIED as moot. Evans’s motion for
¶724class certification (document n o . 47) is also DENIED as moot.
¶725The clerk shall enter judgment accordingly and close the case.
¶726 SO ORDERED.
¶727 Joseph A . DiClerico, J r . United States District Judge
¶728September 2 3 , 2005 c c : Bruce G. Tucker, Esquire Andrew W . Serell, Esquire Peter E . Hutchins, Esquire
¶729 42