United States Court of Appeals

For the First Circuit

Nos. 05-1737, 05-1831

LOCKHEED MARTIN CORPORATION, individually, doing business as,

and acting by and through "Lockheed Martin Missiles & Space"

and "Sanders, A Lockheed Martin Company",

Plaintiff, Appellant,

v.

RFI SUPPLY, INC., formerly known as RFI Communications &

Security Systems; GRINNELL CORPORATION, doing business as

Grinnell Fire Protection Systems Company; KIDDE-FENWAL, INC.,

Defendants,

RANTEC POWER SYSTEMS, INC.,

Defendant/Third-Party Plaintiff, Appellee/Cross-Appellant,

v.

FACTORY MUTUAL RESEARCH CORPORATION;

FACTORY MUTUAL INSURANCE COMPANY,

Third-Party Defendants, Cross-Appellees,

STAR SPRINKLER, INC.; ALLENDALE MUTUAL INSURANCE COMPANY,

Third-Party Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.
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Randy W. Gimple, with whom Carlson, Calladine & Peterson, LLP

were on brief, for appellant.

Patrick J. Hagan, with whom J. Cross Creason, Dillingham &

Murphy, LLP, Richard B. Kirby and Keegan, Werlin & Pabian, LLP were

on brief, for appellee/cross-appellant Rantec Power Systems, Inc.

Jonathan D. Mutch, with whom James S. Harrington and Robins,

Kaplan, Miller & Ciresi, LLP were on brief, for cross-appellees

Factory Mutual Research Corp. and Factory Mutual Insurance Company.

March 17, 2006
 At oral argument, counsel for Rantec stated that Rantec would 1

withdraw its appeal regarding the grant of summary judgment in

favor of the FM Entities if we affirmed the grant of summary

judgment as to Lockheed's claims. Because we affirm that portion

of the district court's opinion, we do not reach Rantec's appeal.

 An anechoic chamber is a steel shielded room padded with foam 2

material to absorb light and sound. These chambers are used by

Lockheed to test antenna signals for aerospace and military

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TORRUELLA, Circuit Judge. This case involves three

parties: Plaintiff Lockheed Martin Corporation ("Lockheed"),

Defendant Rantec Power Systems, Inc. ("Rantec"), and Third-Party

Defendants Factory Mutual Research Corporation ("FMRC") and Factory

Mutual Insurance Corporation (collectively, the "FM Entities").

Lockheed appeals the district court's grant of Rantec's motion for

summary judgment against Lockheed. Rantec, in turn, appeals the

district court's grant of the FM Entities' motion for summary

judgment against Rantec. We affirm the district court's grant of

Rantec's motion for summary judgment against Lockheed and do not

reach the district court's grant of the FM Entities' motion for

summary judgment against Rantec.1

I. Factual Background and Procedural History

A. Lockheed and Rantec

Lockheed is an advanced technology company incorporated

in Maryland that also has its principal place of business in

Maryland. Rantec is a Delaware corporation with its principal

place of business in Missouri. Rantec designs and constructs

anechoic chambers. On April 15, 1992, Lockheed and Rantec entered 2
applications.

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into a written contract in which Rantec agreed to design and

construct an anechoic chamber at a Lockheed facility in Merrimack,

New Hampshire. As part of the contract, Rantec was required to

"design, fabricate, and install a fire detection and sprinkler

system" in the chamber. The contract contained a warranty clause

providing that "[a]ll equipment and workmanship shall be guaranteed

to be free from defects by [Rantec] for a period of one (1) year

after final acceptance, unless a different warranty is specified."

Rantec completed construction of the chamber in late 1992, and

final acceptance occurred in 1993.

The fire detection system consisted of, inter alia, smoke

detectors, fire alarms, valves, telescoping sprinkler assemblies

("TSAs"), and sprinkler heads. The TSAs were retracted above and

outside the chamber and were designed to extend into the chamber

when the detection system identified smoke or fire but not

immediately release water. Once the temperature exceeded a certain

level, a fusible link incorporated in the sprinkler head would melt

and water would be released into the chamber.

The present case stems from two incidents involving

flooding of Lockheed anechoic chambers. In December 1996, an

anechoic chamber at a Lockheed facility in California suffered

water damage when three of the TSAs broke and water flooded the

chamber. On March 27, 1997, the sprinkler system at the anechoic
A reading of Lockheed's complaint shows that it claimed damages 3

only to the anechoic foam and sub-flooring in the chamber, as well

as to the sprinkler assemblies.

 The court had diversity jurisdiction under 28 U.S.C. § 1332. 4

All of Lockheed's claims involved state law.

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chamber in New Hampshire malfunctioned. The fire suppression

system activated due to a defect in an electronic panel sold and

installed by another contractor not party to this suit. The TSAs

extended and some of the sprinkler heads broke and released a large

amount of water into the chamber. The foam and sub-flooring of the

chamber suffered $400,000 of damage. According to Lockheed, also

damaged by the flood were a pedestal and positioning system costing

over $160,000. These items were not provided under the contract

with Rantec. Lockheed did not include these items in its complaint

and did not amend its complaint to add these items.3

On December 20, 1999, Lockheed brought suit against

Rantec in the United States District Court for the Northern

District of California, alleging claims stemming from the 4

incidents in California and New Hampshire. On August 29, 2000, the

district court in California severed Lockheed's New Hampshire

claims, and the parties then stipulated to transfer the New

Hampshire claims to the United States District Court for the

District of Massachusetts. Lockheed raised the following claims

regarding the New Hampshire events: (1) negligence, (2) strict

liability, and (3) implied warranties.
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B. Rantec and the FM Entities

FMRC performs testing, issues product standards, and

publishes a directory of "FM Approved" products for use in fire

suppression systems. Rantec's claims against the FM Entities

stemmed from FMRC's approval of Rantec's TSAs on the condition that

they be equipped with certain sprinkler heads -- the sprinkler

heads that broke when the TSAs extended into Lockheed's anechoic

chamber. After Lockheed sued Rantec, Rantec moved to add the FM

Entities as Third-Party Defendants pursuant to Rule 14(a) of the

Federal Rules of Civil Procedure. In their briefs, Rantec and the

FM Entities dispute when Rantec filed its Third-Party complaint

against the FM Entities. Because we are not reaching Rantec's

appeal regarding the grant of summary judgment in favor of the FM

Entities, we do not address this issue.

C. Proceedings Below

On April 12, 2001, Rantec moved for summary judgment

against Lockheed. The district court denied this motion on June 6,

2001. On September 30, 2003, the court stayed all further

proceedings pending resolution of the California litigation. The

district court reopened litigation on December 9, 2004. Rantec refiled its motion for summary judgment against Lockheed, and the FM

Entities moved for summary judgment against Rantec. On April 20,

2005, the district court granted Rantec's motion for summary

judgment against Lockheed and granted the FM Entities' motion for
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summary judgment against Rantec. Regarding Lockheed's claims

against Rantec, the district court found that the economic loss

doctrine barred Lockheed's tort claims and that the implied

warranties' claims were barred by the statute of limitations.

Lockheed appealed on May 17, 2005. Rantec appealed on May 31,

2005.

II. Discussion

A. Standard of Review

"We review a district court's grant of summary judgment

de novo, viewing the facts in the light most favorable to the

nonmovant." Uncle Henry's, Inc. v. Plaut Consulting Co., 399 F.3d

33, 41 (1st Cir. 2005). Summary judgment is appropriate "if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). We may affirm a district court's grant of summary judgment

on any basis apparent in the record. Uncle Henry's, 399 F.3d at

41.

B. Lockheed's Tort Claims

The parties agree that New Hampshire law governs this

case. The district court found that, under New Hampshire law,

Lockheed's tort claims were barred by what is known as the economic

loss rule. Under the economic loss rule, a party generally may not
 As we will discuss below, the New Hampshire Supreme Court has 5

recently clarified this statement in Kelleher v. Marvin Lumber and

Cedar Co., -- A.2d --, 2005 WL 3429739 (N.H. Dec. 15, 2005).

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recover in tort for "economic loss." We begin by discussing how

the New Hampshire courts have defined "economic loss" and applied

the economic loss rule.

The New Hampshire Supreme Court has defined "economic

loss" as "the diminution in the value of a product because it is

inferior in quality," Ellis v. Robert C. Morris, Inc., 513 A.2d

951, 954 (N.H. 1986)(internal quotation marks omitted), overruled

on other grounds by Lempke v. Dagenais, 547 A.2d 290, 297-98 (N.H.

1988), and "that loss resulting from the failure of the product to

perform to the level expected by the buyer[, which] is commonly

measured by the cost of repairing or replacing the product,"

Lempke, 547 A.2d at 296. The New Hampshire Supreme Court has also

stated that "[w]hen a defective product accidentally causes harm to

persons or property, the resulting harm is treated as personal

injury or property damage. But when damage occurs to the inferior

product itself . . . the harm is characterized as economic loss."

Ellis, 513 A.2d at 954. The New Hampshire Supreme Court has also 5

noted that "[i]t is clear that the majority of courts do not allow

economic loss recovery in tort, but that economic loss is

recoverable in contract," Lempke, 547 A.2d at 296, and that a

party usually may not recover damages for economic loss via a tort

claim. See Border Brook Terrace Condo. Ass'n v. Gladstone, 622
 In making this argument, Lockheed states that its view is 6

consistent with "that of the overwhelming majority of courts around

the country." We disagree. As the United States Supreme Court

noted in East River Steamship Corp. v. Transamerica Delaval, Inc.,

476 U.S. 858, 868 (1986), the majority of courts have held that a

party may not recover in tort when a product's malfunction damages

only the product itself, regardless of the manner in which the

damage occurred or the risk posed by the defect.

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A.2d 1248, 1253 (N.H. 1993). The district court found that the

flooding was caused by a malfunction of the anechoic chamber and

that the only thing damaged was the chamber itself. The district

court therefore concluded that Lockheed suffered only economic loss

and could not recover on its negligence or strict liability claims.

Lockheed argues that, under New Hampshire law, the

economic loss rule does not bar tort actions where a defect

"actually poses an affirmative risk of harm to persons or

property." Lockheed would have us look to how the damage occurred

and, if we find that the defect or accident posed an affirmative

risk to persons or property, find that its tort claims are not

barred by the economic loss rule. However, we see nothing in the 6

New Hampshire cases dealing with economic loss indicating that,

when determining whether or not loss is economic, the New Hampshire

courts would inquire into the risk posed by an accident or defect

in a product. Instead, the New Hampshire cases are clear that when

a product harms only itself, the loss is economic and may not be

recovered in tort. For example, in a recent New Hampshire Supreme

Court case, the court stated that "'[w]hen a defective product
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accidentally causes harm to persons or property [other than the

defective product itself], the resulting harm is treated as

personal injury or property damage.'" Kelleher v. Lumber --- A.2d

---, 2005 WL 3429739 at *12 (N.H. Dec. 15, 2005) (quoting Ellis,

513 A.2d at 954)(alteration in original)(emphasis added). The

court went out of its way to add the phrase "other than the

defective product itself," which was not present in Ellis. The

implication of this statement is that, when a defective product

accidentally causes harm to itself, that harm is not treated as

personal injury or property damage but is instead treated as

economic loss, which is not recoverable in tort. The New Hampshire

Supreme Court has therefore clearly rejected the logic behind

Lockheed's argument.

We also think that this approach comports with the

policies behind several fundamental tenets of contract and tort

law. Lockheed argues that the purpose of the economic loss

doctrine is to distinguish between a product that fails to perform

as promised and a product whose defect poses an actual risk of

injury or damage, and that the dividing line between tort and

contract should not hinge on the fortuity of what happened to be

damaged. To our knowledge, the New Hampshire courts have not

explicitly addressed these arguments. However, the United States

Supreme Court has done so in East River S.S. Corp. v. Transamerica

Delaval, Inc., 476 U.S. 858 (1986). In East River, an admiralty
 While the Court was not speaking about New Hampshire law, and 7

its decision is therefore not controlling in this case, we think

that its policy rationale applies in full force, especially

considering our finding that New Hampshire has adopted the majority

view of the economic loss doctrine.

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case, the Court discussed the merits of the majority view of the

economic loss doctrine -- that damage to a product caused by that

product is economic loss and not recoverable in tort -- as well as

the view argued by Lockheed -- that the economic loss doctrine

should turn on the affirmative risk posed by the defective product.

In rejecting the position advocated by Lockheed, the Court stated

that such a position, "which essentially turn[s] on the degree of

risk, [is] too indeterminate to enable manufacturers easily to

structure their business behavior." Id. at 870. The Court also

stated that

[t]he distinction that the law has drawn

between tort recovery for physical injuries

and warranty recovery for economic loss is not

arbitrary and does not rest on the "luck" of

one plaintiff in having an accident causing

physical injury. The distinction rests,

rather, on an understanding of the nature of

the responsibility a manufacturer must

undertake in distributing his products. When

a product injures only itself the reasons for

imposing tort duty are weak and those for

leaving the party to its contractual remedies

are strong.

Id. at 871 (citation and internal quotation marks omitted). As 7

the Court noted, "[e]ven when the harm to the product itself occurs

through an abrupt, accident-like event, the resulting loss due to

repair costs, decreased value, and lost profits is essentially the
 Lockheed admits that if there had been a fire in the chamber but 8

the sprinkler system failed to extinguish it, or if the sprinkler

system had interfered with the chamber's ability to send or receive

signals, then it would likely be barred by the economic loss

doctrine because these situations would have involved a failure of

the chamber to perform. Lockheed attempts to distinguish these

situations from the flooding of the chamber, arguing that the

flooding had nothing to do with the chamber's ability to perform.

However, we see no difference between the situations. Part of the

chamber's ability to perform was the fire suppression system's

ability to extend the TSAs into the chamber if there was a fire but

not release water until a certain temperature was reached. Here,

there were two failures to perform: (1) the sprinklers descended

into the chamber when there was not a fire, and (2) the sprinklers

released water into the chamber even though there was no fire.

This latter occurrence was, in many ways, a failure of the

sprinkler system to perform one of its most basic functions -- to

not release water into the chamber simply because the TSAs had been

deployed. We therefore reject Lockheed's attempts to distinguish

the present situation from other situations where it admits that

there would be a failure of performance.

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failure of the purchaser to receive the benefit of its bargain --

traditionally the core concern of contract law." Id. at 870. 8

Further, Lockheed's position would eviscerate the line

between tort and contract and would allow tort, in many ways, to

swallow up contract law. As the Supreme Court noted in East River,

"[p]roducts liability grew out of a public policy judgment that

people need more protection from dangerous products than is

afforded by the law of warranty. It is clear, however, that if

this development were allowed to progress too far, contract law

would drown in a sea of tort." Id. at 866 (citation omitted).

Lockheed's view would lead to just that result. It would allow any

party who suffered damage as a result of a product's malfunction to

bring a tort claim by asserting that the malfunction occurred in a
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way that might have harmed another person or property, regardless

of whether any other person or property was actually harmed. We

think the better approach is to look at what in fact happened, not

what could have happened.

In sum, it is clear from the New Hampshire cases,

especially Kelleher, the New Hampshire Supreme Court's most recent

case regarding the economic loss rule, that New Hampshire has

adopted the majority view of the economic loss rule which the

Supreme Court discussed in East River. Therefore, if the flooding

caused by the allegedly defective sprinkler systems damaged only

the product itself, then the economic loss rule prohibits Lockheed

from recovery on its tort claims.

We turn now to address whether the flooding damaged only

the product itself. Lockheed makes two arguments regarding this

issue. First, it argues that the fire suppression system and the

anechoic chamber were different products, and that the defect in

the fire suppression therefore damaged another product -- the

anechoic chamber. However, as Rantec points out, the parties'

contract for the anechoic chamber included the fire suppression

system as a component part of the chamber, not a separate product.

As part of the contract, the parties included a document entitled

"Tapered Anechoic Chamber, Compact Range Chamber Technical

Specification." Paragraph 1.0 of this document, entitled

"Introduction," stated that "[t]his document provides specification
 The district court rejected Lockheed's argument on the basis 9

that Lockheed had failed to point to any evidence that the damage

to this property exceeded $75,000. Because we think the fact that

Lockheed never mentioned this other property in its complaint is

sufficient to dispose of its argument, we do not address this point

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information for a tapered anechoic chamber . . . ." Paragraph 2.0,

entitled "Tapered Anechoic Chamber and Control Room," stated that

"[t]he specification is for a tapered anechoic chamber to be used

as a general purpose facility for RCS test and antenna pattern

measurements . . . . The contractor will design, fabricate, and

test the chamber, including all HVAC, fire detection and

suppression" utilities. From these provisions, it is clear that

the fire suppression system was a component part of the anechoic

chamber according to the technical specifications for the chamber

agreed upon by the parties. The anechoic chamber and fire

suppression system are therefore properly regarded as a single

unit. As the Supreme Court noted in East River, "[s]ince all but

the very simplest of machines have component parts, [a contrary]

holding would require a finding of property damage in virtually

every case where a product damages itself." 476 F.3d at 867

(internal quotation marks and citation omitted).

Lockheed's second argument is that there were in fact

other items in the chamber when it was flooded: a pedestal and

positioning system. However, as Rantec points out, Lockheed never

mentioned these items in its complaint and never amended its

complaint to include these items. Lockheed attempts to get around 9
made by the district court.

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this issue by arguing that, under the Federal Rules of Civil

Procedure's notice pleading standard, it was not required to

itemize its damages in the complaint. Lockheed also argues that

the complaint, fairly read, gave notice to Rantec that these other

items were in the chamber. We disagree for several reasons.

First, while the Federal Rules of Civil Procedure require only

notice pleading, there is nothing in the complaint that would put

Rantec on notice that Lockheed was claiming anything other than

damage to the chamber itself. A review of the complaint reveals no

mention of other items in the chamber. Instead, the complaint

repeats several times that "plaintiff's anechoic chambers were

doused with water and severely damaged." Lockheed also specified

that the "anechoic foam and sub-flooring in the chamber" was

damaged. Nothing in the complaint provides the slightest

indication that there were other items in the chamber or that

Lockheed suffered damage to anything other than the chamber itself.

We see no reason to allow Lockheed to claim damage to other items

when it never bothered to mention or even hint toward damage to

anything beyond the anechoic chamber itself in the complaint.

Second, in reviewing the New Hampshire cases dealing with

the economic loss doctrine, it is clear that the New Hampshire

courts have looked to the complaint to determine whether the

damages claimed by a plaintiff were economic loss. See Border
 It is clear from the New Hampshire cases that a "writ" used in 10

this context is synonymous with "complaint." See, e.g., Buckingham

v. R.J. Reynolds Tobacco Co., 713 A.2d 381, 383 (N.H. 1998)("With

regard to count I of the plaintiff's writ, we hold that the

plaintiff has failed to state a claim upon which relief may be

granted because the complaint does not allege that the product was

'defective' and 'unreasonably dangerous' as separate elements.")

(emphasis added).

 Lockheed could not bring any express warranty claims because the 11

warranty in the contract was for one year and had long expired.

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Brook Terrace Condo. Ass'n, 622 A.2d at 1253 (looking to the

"plaintiffs' writ" in determining whether plaintiffs suffered only

economic loss); Ellis, 513 A.2d at 954 ("The plaintiffs' claim does

not involve property damage per se. Rather, the writ alleges

economic loss resulting from the defendant's failure to properly

perform a contractual obligation.")(emphasis added). Although it 10

is not controlling under the Federal Rules of Civil Procedure, we

find the approach of the New Hampshire courts instructive. Because

Lockheed failed to give any indication in its complaint that it was

alleging damage to anything other than the anechoic chamber, we

will not consider alleged damage to the pedestal and positioning

system in this appeal.

C. Lockheed's Implied Warranties Claims

Lockheed also brought claims for breach of implied

warranties under New Hampshire's Uniform Commercial Code ("UCC").11

The district court assumed, arguendo, that the contract was
 Below, Rantec argued that the UCC did not apply to the contract 12

and that Lockheed could therefore not bring any claims under the

UCC. The district court did not address this argument. Rantec has

also made this argument before us, but we need not address it given

our disposition of Lockheed's implied warranties claims. Like the

district court, we will assume, arguendo, that the UCC applies.

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governed by the UCC. The court then found that the UCC's statute 12

of limitations -- codified as N.H. Rev. Stat. § 382-A:2-725

("Section 2-725") -- applied to Lockheed's claims. Section 2-725

provides for a four-year statute of limitations commencing at the

time the cause of action accrues. N.H. Rev. Stat. Ann. § 382-A:2-

725(1). The statute also provides

A cause of action accrues when the breach

occurs, regardless of the aggrieved party's

lack of knowledge of the breach. A breach of

warranty occurs when tender of delivery is

made, except that where a warranty explicitly

extends to future performance of the goods and

discovery of the breach must await the time of

such performance the cause of action accrues

when the breach is or should have been

discovered.

Id. § 382-A:2-725(2).

The district court found that Lockheed accepted the

chamber in 1993 and did not file its complaint until 1999. The

court therefore found that Lockheed's claims were barred by the

statute of limitations. The court, moreover, found no reason for

equitable tolling.

On appeal, Lockheed makes two arguments. First, it

argues that the statute of limitations in Section 2-725 does not

apply to its case. Alternatively, it argues that equitable tolling
 Section 508:4 states, in relevant part, that 13

Except as otherwise provided by law, all personal

actions, except actions for slander or libel, may be

brought only within 3 years of the act or omission

complained of, except that when the injury and its causal

relationship to the act or omission were not discovered

and could not reasonably have been discovered at the time

of the act or omission, the action shall be commenced

within 3 years of the time the plaintiff discovers, or in

the exercise of reasonable diligence should have

discovered, the injury and its causal relationship to the

act or omission complained of.

N.H. Rev. Stat. Ann. § 508:4.

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applies. We address each argument in turn. According to Lockheed,

the substance of its action "is not a malfunctioning of the

anechoic chamber, but rather, sudden flooding and resulting

property damage." As a result, Lockheed argues, the substance of

this action is a tort claim for property damage and therefore the

applicable statute of limitations is found in N.H. Rev. Stat. Ann.

§ 508:4 ("Section 508:4"), which provides a three-year statute of

limitations for "personal actions." Section 508:4 also explicitly

contains a discovery rule exception to the statute of limitations,

which is why Lockheed is attempting to persuade us that Section

508:4 applies.13

We reject Lockheed's argument for two reasons. First, in

its complaint, Lockheed brought tort claims and contract claims.

We have already disposed of Lockheed's tort claims, leaving only

the contract claim for implied warranties, and both the form and

substance of this claim appear to us to be a contract claim.
 We do not find Lockheed's attempts to distinguish these cases 14

persuasive. For example, Lockheed argues that in Gagnon, we held

that "both the then-six year statute of limitations under N.H. Rev.

Stat. Ann. § 508:4 and the four year statute of limitations under

N.H. Rev. Stat. Ann. 382-A:2-725 had expired" before the suit was

brought, and we therefore did not consider which limitations period

applied. However, this argument ignores the fact that in Gagnon,

we explicitly divided the plaintiff's claims into tort claims and

warranty claims. For the tort claims, we stated that Section 508:4

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Further, given our discussion of the economic loss rule, it is

clear that the damage Lockheed suffered was "the failure of the

product to function properly[, which] is the essence of a warranty

action . . . ." East River, 476 U.S. at 868. In other words, the

substance of this action is a malfunctioning anechoic chamber, not

"sudden flooding and resulting property damage" as Lockheed claims.

Given this, we see no reason to allow Lockheed to convert its

contract claim for implied warranty into a tort claim. Second, all

of the cases involving a warranty claim brought under New

Hampshire's UCC have used Section 2-725's statute of limitations.

See Gagnon v. G.D. Searle & Co., 889 F.2d 340, 343 (1st Cir. 1989)

("The statute of limitations applicable to [appellant's] breach of

warranty claim requires that an action be commenced 'within four

years after the cause of action has accrued.'")(quoting N.H. Rev.

Stat. Ann. § 382-A:2-725(1)); Pub. Serv. Co. of New Hampshire v.

Westinghouse Elec. Corp., 685 F. Supp. 1281, 1284 (D.N.H. 1988)

("Actions for breach of implied warranties are also subject to the

UCC four-year statute of limitations . . . ."); Morrissette v.

Sears, Roebuck & Co., 322 A.2d 7, 11-12 (N.H. 1974). We therefore 14
applied, Gagnon, 889 F.2d at 342, and for the warranty claims, we

specifically stated that Section 2-725 applied, id. at 343.

 Lockheed's argument is somewhat confusing in that it sometimes 15

appears to conflate equitable tolling and the discovery rule. For

example, in arguing for equitable tolling, Lockheed states that

"the New Hampshire legislature has specifically endorsed and

codified the discovery rule, a form of equitable tolling, for

appropriate actions." While related, equitable tolling and the

discovery rule are distinct doctrines. Further, while New

Hampshire has adopted the discovery rule for tort actions covered

by Section 508:4, it has recently rejected a discovery rule

exception for implied warranty claims governed by Section 2-725.

See Kelleher, 2005 WL 3429739, at *27.

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find that Lockheed's implied warranties claims brought under the

UCC are subject to the UCC's statute of limitations.

Lockheed's second argument is that, even if we apply

Section 2-725's limitations period, equitable tolling should apply.

The district court rejected this argument, finding no evidence

sufficient to create a genuine issue as to whether equitable

tolling should apply. We agree. Lockheed notes that Section 382-

A:725(4) states that the UCC statute of limitations "does not alter

the law on tolling of the statute of limitations . . . ." It also

notes that the New Hampshire Supreme Court has recently recognized

equitable tolling in other contexts and that equitable tolling

should apply here. See Portsmouth Country Club v. Town of 15

Greenland, 883 A.2d 298, 304 (N.H. 2005). However, Portsmouth

Country Club involved a tax abatement proceeding with a different

statute of limitations, not an implied warranty claim governed by

Section 2-725's statute of limitations. Given the fact that the
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New Hampshire Supreme Court has recently stated that the discovery

rule is not applicable in implied warranties claims governed by

Section 2-725, it is likely that court would also find that

equitable tolling is inapplicable, especially considering Section

2-725's statement that "[a] cause of action accrues when the breach

occurs, regardless of the aggrieved party's lack of knowledge of

the breach." N.H. Rev. Stat. Ann. § 382-A:2-725(2). Morever, even

if the New Hampshire Supreme Court were to allow equitable tolling

for certain claims governed by Section 2-725, such relief is

unavailable here. Portsmouth Country Club noted that equitable

tolling "is typically available only if the claimant was prevented

in some extraordinary way from exercising his or her rights . . . .

It applies principally if the plaintiff is actively misled by the

defendant about the cause of action." 883 A.2d at 304 (emphasis

added)(citation and internal quotation marks omitted). Here,

Lockheed has not even attempted to argue that it was actively

misled by Rantec about its cause of action. Further, we see

nothing extraordinary about what happened. This is a case of a

party who received a product that malfunctioned several years after

purchase. Such cases occur all the time, and we see no reason to

apply the rarely used doctrine of equitable tolling to Lockheed's

case. We therefore find that Lockheed's implied warranties' claims

are barred by the four-year statute of limitations period in

Section 2-725.
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III. Conclusion

For the foregoing reasons, we affirm the district court's

grant of summary judgment in favor of Rantec as to Lockheed's

claims. Rantec's appeal regarding the district court's grant of

summary judgment in favor of the FM Entities is withdrawn.

Affirmed.