Opinion
11-P-443
03-21-2012
TROY INDUSTRIES, INC. v. SAMSON MANUFACTURING CORPORATION & another (No. 2).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Samson Manufacturing Corporation and Scott A. Samson (collectively, Samson), appeal from the denial of their motion, pursuant to Mass.R.Civ.P. 60(b)(5)&(6), 365 Mass. 828 (1974), for relief from a Superior Court judgment awarding damages to the plaintiff, Troy Industries, Inc., for Samson's violation of a confidentiality agreement and violation of G. L. c. 93A (hereafter the underlying case). We affirm.
Samson's appeal from the judgment and the denial of certain postjudgment motions was entered in this court on August 19, 2009, as 2009-P-1571. The present appeal is one of two following the underlying case. The third case, 2011-P-444, entered in this court on March 14, 2011, is an appeal from the decision of the trial judge in the underlying case dismissing Troy's contempt action against Samson.
Background. Because the parties are thoroughly familiar with the background of their litigation; the cases are presented for separate decision; and no issues of wider significance are presented, it is not necessary to provide a separate statement of the background of the underlying case.
The judgment in the underlying case was entered on August 13, 2007, after trial. On September 23, 2009, Samson filed a motion for relief from that judgment. After a nonevidentiary hearing held on February 11, 2010, the motion was denied on November 24, 2010, by a motion judge who was not the trial judge.
It is unnecessary here to detail actions taken by Samson in the Superior Court and this court in the interval between the judgment and the appeal of the denial of the motion for relief from that judgment, except to note that Samson's three postjudgment motions were denied in the underlying case.
Samson sought to vacate the judgment, claiming that a Federal jury verdict on June 26, 2009 -- finding that Troy's principal had misappropriated trade secrets for the Modular Rail Forend (MRF) handguard from his former employer Atlantic Research Marketing Systems, Inc. (ARMS) -- 'negates the basis' on which Troy obtained its judgment against Samson. Samson essentially asserts that Troy deceptively claimed that the MRF was its trade secret. Samson argues that the judge should have granted relief under Mass.R.Civ.P. 60(b)(5)&(6).
We acknowledge the receipt of a Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), letter after oral argument from Samson citing the ARMS case (Atlantic Research Marketing Systems, Inc. v. Troy, 711 F. Supp. 2d 218 [D. Mass. 2010]), and suggesting that a recent decision of this court, Specialized Technology Resources, Inc. v. JPS Elastomerics Corp., 80 Mass.
App. Ct. 841 (2011), pertains to the argument made by Samson whether Troy had trade secret protection for its MRF handguard. Because we decide here that the ARMS case has no application, to the extent that the decision in Specialized Technology Resources is relevant to the ARMS case, we need not consider it further.
Discussion. In denying Samson's rule 60(b) motion, the motion judge concluded that 'Samson is unable . . . to counter the weight of its knowledge and its strategy in this case sufficiently to persuade the Court that the equities lie in its favor.' The motion judge explained that although 'A.R.M.S.'s Swan informed . . . Samson, in November 2004, that while Troy was employed by A.R.M.S. he stole trade secrets, . . . Samson nevertheless elected to defend this case on the ground that Scott Samson was the designer of the M.R.F.'
Samson first asserts that prior to ARMS filing suit in Federal court in August, 2007, nothing in the trial record indicates that it had reason to know that Troy had misappropriated trade secrets from ARMS. Accordingly, relying on the conclusion in the ARMS case, Samson sweepingly asserts that in the underlying case Troy made 'wholesale, perjurious assertions . . . that he had conceived of the MRF . . . [which] infected the entire case as a fraud on Samson and on the Court.' There is no record support for these extravagant assertions. Samson fails to show that Troy 'has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.' Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. 340, 349 (2010) (Mt. Ivy Press), quoting from Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994).
Samson attempts to read into Troy's trial testimony an intent to deceive the court about the truth of 'theft of trade secrets' from ARMS. To the extent, however, that Troy's testimony could be read as the 'nondisclosure to an adverse party . . . or to the court . . . of facts pertinent to a controversy before the court, [such nondisclosure] without more, does not amount to 'fraud on the court' for purposes of vacating a judgment under rule 60(b).' Mt. Ivy Press, supra at 349, quoting from Paternity of Cheryl, 434 Mass. 23, 36 (2001).
Next, turning to the motion judge's finding that Samson's defense in the underlying case was fashioned 'on the ground that Scott Samson was the designer of the M.R.F.,' we observe that the record amply supports that finding, particularly because Samson had knowledge of ARMS's claim that it had patentable rights in the MRF, even before trial in the underlying case. Samson overlooks several instances in the record which show Samson's knowledge of ARMS's claims. Foremost among these are Samson's counterclaim of February 8, 2005, in the underlying case, and Samson's license agreements with ARMS of January 6 and February 1, 2005, all long before trial in the underlying case. ,
In the counterclaim Samson alleged: 'Upon information and belief, the interrupted lug design is in violation of a patent held by a third party known as A.R.M.S., and Troy has not entered into a licensing agreement with A.R.M.S. for its handguard.' Samson's motion to voluntarily dismiss counterclaim Counts III (tortious interference with advantageous relations), IV (conversion), and V (declaratory determination) was allowed on June 11, 2007.
Further record evidence of knowledge of ARMS's claims includes the joint pretrial memo, testimony at trial, and other documents as listed in Troy's brief at pages 13 through 18.
In an affidavit in support of Samson's opposition to Troy's motion for a preliminary injunction on January 25, 2005, Samson stated: 'Upon information and belief, Troy Industries has not entered into a licensing agreement with A.R.M.S. for its handguard. The Troy handguard (which it calls the M.R.F. handguard) and Samson Manufacturing's handguard use the same interrupted lug design, any sales of Troy's handguard without a license from A.R.M.S. are in violation of the A.R.M.S. patents.'
Also significant is Samson's postjudgment motion for a new trial, submitted on August 23, 2007, in the underlying case. Here, Samson noted patent interferences filed by Samson and ARMS, and a Federal lawsuit alleging misappropriation of ARMS's designs. Samson ended with a footnote stating that these filings 'arguably constitute newly discovered evidence that could serve as a further basis for a new trial in this case.' In the circumstances, it hardly can be said that this was 'newly discovered' evidence. Cf. Wojcicki v. Caragher, 447 Mass. 200, 213 (2006).
In his decision on the postjudgment motions, and considering whether to grant a new trial, the trial judge stated: '[T]his Court must consider the evidence presented at trial, not the evidence the losing party, with the wisdom of hindsight, wishes it had offered or elicited.' Samson did not raise or brief the allegation that Troy misappropriated trade secrets from ARMS when it appealed the denial of its postjudgment motions in the underlying case.
There is no merit in Samson's assertion that the motion judge should have held an evidentiary hearing. Samson fails to show that the motion judge's decision rests on inadequate evidence and, in any event, Samson did not renew its request for an evidentiary hearing or specifically raise the issue in its notice of appeal.
Samson appears to have deliberately passed up many opportunities to modify its defense. Samson thus fashioned the law of the case. Accordingly, such 'free, calculated, deliberate choices are not to be relieved from' under rule 60(b). Bromfield v. Commonwealth, 400 Mass. 254, 257 (1987), quoting from Ackermann v. United States, 340 U.S. 193, 198 (1950). The judge did not abuse his discretion in denying the rule 60(b) motion for relief. Parrell v. Keenan, 389 Mass. 809, 815 (1983).
We do not disturb the denial of Troy's motion requesting an award of attorney's fees and costs.
The order dated November 24, 2010, denying the motion for relief from judgment is affirmed.
By the Court (Cypher, Vuono & Rubin, JJ.),