UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

J. Krist Schell

v. Civil No. 06-cv-425-JM

Thomas W. Kent

O R D E R

Plaintiff brought suit against defendant asserting claims of

breach of contract, unjust enrichment and fraud, stemming from a

failed business association between them. Summary judgment was

entered on the breach of contract claims, and a trial on the

remaining claims was held, in which plaintiff presented his claim

for unjust enrichment to the court and his claim for fraud to the

jury. The jury found for plaintiff on the fraud claim, and

awarded plaintiff $76,524.93 in damages, plus attorney’s fees.

Currently before the court are four separate matters. First

is plaintiff’s motion for partial award of attorney’s fees

(document no. 81), to which he is entitled as damages for having

prevailed at summary judgment on the breach of contract claims

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asserted in counts I and II. Second is the court’s resolution of

plaintiff’s unjust enrichment claim. Third, defendant filed a

post trial motion seeking judgment as a matter of law or, in the

alternative, a new trial (document no. 98). And fourth is

plaintiff’s motion for a determination of the amount of

attorney’s fees to be awarded under the jury’s verdict (document

no. 101). Set forth below is my disposition of each of these

four matters.

1. Plaintiff’s Motion for Partial Award of Damages 

Plaintiff won partial summary judgment on his breach of

contract claim asserted in counts I and II of the complaint,

based on an Indemnification Agreement between plaintiff and

defendant. See Schell v. Kent, No. 06-425-JM, slip op. at 12

(D.N.H. May 9, 2008) (“Sum. J. Order”) (document no. 55). 

Plaintiff prevailed, because defendant had failed to timely

answer requests for admissions filed by plaintiff which, as a

result, were deemed admitted. See id. (citing Fed. R. Civ. P.

36(a)(3)). Among the matters deemed admitted was the existence

of an Indemnification Agreement, which provided for plaintiff to

be reimbursed for 2/3 of any damages or losses sustained by

plaintiff in connection with a Guarantee which plaintiff had

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executed. See id. at 9. Plaintiff had been sued on the

Guarantee in state court and incurred attorney’s fees in defense

of that action against him. The state court claim on the

Guarantee was dismissed because it was barred by the statute of

limitations. I concluded, however, that the Indemnification

Agreement entitled plaintiff to recover 2/3 of the costs incurred

in defending the claim on the Guarantee in state court, through

its dismissal on June 7, 2005.

Plaintiff has submitted a statement of the costs incurred in

the state action, as damages for the indemnification claim which

he asserted and won here (document no. 81). 

The Indemnification Agreement provided that plaintiff was

entitled to two-thirds of his reasonable attorney’s fees and

costs incurred in connection with claims on the Guarantee. 

Plaintiff has submitted statements totaling $31,932.42. 

Defendant “does not object to the hourly fee claimed.” (Document

no. 86). He does claim that the fees have not been allocated

between the fees covered by the Guarantee and those related to

non-guarantee claims. Defendant, however, has not pointed to a

single billing entry that relates to non-guaranteed claims. I

have reviewed the time records and cannot identify any “nonCase 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 3 of 38
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guarantee” time entries.

The billable hours and rates are reasonable and relate to

the claims covered by the Guarantee. Plaintiff is entitled to

judgment on Counts I and II in the amount of $21,288.32.

2. Count III - Unjust Enrichment

Plaintiff brought this action to recover financial losses he

sustained from a failed business venture with defendant, in which

the pair formed a company, known as Bradley Reed Lumber, LLC

(“BRL”), to import and sell high quality lumber from Russia. 

Plaintiff’s tenure with BRL was short-lived, and he was not paid

for his contributions to the company when he left it. In count

III of the complaint, plaintiff asserted an unjust enrichment

claim, based on defendant’s alleged retention of plaintiff’s

contributions to BRL, which defendant continued to own and

operate for several years after plaintiff’s departure.

 The unjust enrichment claim initially asserted two separate

bases for the relief sought. First, plaintiff claimed that

defendant was unjustly enriched because plaintiff was never

reimbursed either for $18,587.00 in expenses he incurred on

behalf of the company, or for $28,937.93 in capital contributions

plaintiff made to the company. At summary judgment, I found that

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1Although an oral agreement was found to support plaintiff’s

breach of contract claim asserted in count I, on summary judgment

this contract claim was found to be barred by the statute of

limitations. See Sum. J. Order at 12-14.

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an oral contract existed between the parties for the return of

this same capital and expenses.1 Because a contract was found to

have existed which covered these same reimbursement claims,

plaintiff’s counsel conceded that he could not recover them on a

quasi-contract basis and abandoned this basis for the unjust

enrichment claim. See Schell v. Kent, No. 06-425-JM, slip op. at

1 (D.N.H. Dec. 10, 2008) (“Unjust Enrichment Order”) (document

no. 79). Plaintiff proceeded with his second theory of unjust

enrichment, namely that defendant had retained the value of

plaintiff’s ownership interest in BRL and that plaintiff was

entitled to damages related to his losses stemming from his

interest in the company. See id. at 2.

To establish his unjust enrichment claim, plaintiff must

have demonstrated that defendant received a benefit which would

be unconscionable to retain and which, therefore, equity requires

he make restitution to plaintiff for the same. See Int’l Paper

Box Machine Co. v. Paperboard U.S. Indus., No. Civ. 99-184-JD,

2000 WL 1480462, 4 (D.N.H. Feb. 8, 2000) (citing Pella Windows &

Doors v. Faraci, 133 N.H. 585, 586, 580 A.2d 732, 732-33 (1990));

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see also Petrie-Clemons v. Butterfield, 122 N.H. 120, 127, 441

A.2d 1167, 1171-72 (1982). “Unjust enrichment may exist when an

individual receives a benefit as a result of his wrongful acts,

or when he innocently receives a benefit and passively accepts

it.” Petrie-Clemons, 122 N.H. at 127, 441 A.2d at 1172. While

this equitable doctrine grants the trial court broad discretion

to award damages according to the exigencies of the particular

case, see Singer Asset Fin. Co. v. Wyner, 156 N.H. 468, 476, 937

A.2d 303, 311 (2007), the doctrine is not animated by some moral

obligation, but rather “there must be some specific legal

principle or situation which equity has established or

recognized” to justify restitution. Cohen v. Frank Developers,

Inc., 118 N.H. 512, 518, 389 A.2d 933, 937 (1978) (finding no

unjust enrichment where defendant benefitted from plaintiff’s

relationship with a third party). Finally, the basis for any

recovery plaintiff may be entitled to focuses on “the value of

what was actually received by the defendant,” not what the cost

to plaintiff was. Martin v. Phillips, 122 N.H. 34, 38, 440 A.2d

1124, 1126 (1982) (dismissing unjust enrichment claim because

plaintiff’s poor services offset the value of the material he had

contributed); see also Pella Windows & Doors, 133 N.H. at 586,

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2The evidence showed that the parties agreed to divvy up the

responsibilities of the company and that, at least in the

beginning, they followed their plan. Plaintiff, who held a

masters degree in business administration, handled marketing and

sales for the company, and managed its books, including billing. 

Defendant, who had run other businesses and held a masters degree

in engineering, ran the operations of the company and was

responsible for purchasing inventory, including traveling to

Russia where he had contacts in the lumber industry. The

evidence also demonstrated, however, that as early as the middle

of 2000, this initial arrangement was not working for a myriad of

reasons and that plaintiff began to express a desire to extricate

himself from BRL. 

7

580 A.2d at 732 (1990) (finding no unjust enrichment where

defendants’ costs far exceeded the value of the benefit

received).

The facts here show that plaintiff and defendant had a

business relationship that would be recognized in equity as

potentially giving rise to restitution if defendant were unjustly

enriched by a benefit received from plaintiff. The evidence

demonstrated that the parties had agreed to form a limited

liability company, in which their respective member shares were

1/3 for the plaintiff and 2/3 for the defendant.2 The evidence

also supported plaintiff’s position that his 1/3 membership share

of the LLC was retained by defendant after plaintiff stopped

working for BRL, because he was paid nothing for either the

services he had provided or the financial contributions he had

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made. The evidence also showed that defendant continued to

operate BRL, eventually to his benefit; however, the parties

disputed whether defendant in fact benefitted from retaining

plaintiff’s interest in the company, or whether any benefit

received was offset by what plaintiff had not accomplished for

the company. In the end, however, it did not matter whether

plaintiff cleared this final evidentiary hurdle, because the

evidence established that plaintiff’s unjust enrichment claim is

barred by the statute of limitations.

A claim for unjust enrichment is governed by New Hampshire’s

three year statute of limitations. See N.H. Rev. Stat. Ann.

508:4, I (1997); see also Singer Asset Fin. Co., 156 N.H. at 477,

937 A.2d at 312 (applying three year statue of limitations to

unjust enrichment claim); Coyle v. Battles, 147 N.H. 98, 102, 782

A.2d 902, 906 (2001) (same). A cause of action arises once all

the necessary elements are present, unless the discovery rule

tolls the statute of limitations. See id., 147 N.H. at 101-02,

782 A.2d at 905. The discovery rule applies a two-part test to

determine whether the statute should be tolled: “[f]irst, a

plaintiff must know or reasonably should have known that it has

been injured; and second, a plaintiff must know or reasonably

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should have known that its injury was proximately caused by the

conduct of the defendant.” Wood v. Greaves, 152 N.H. 228, 232,

876 A.2d 241, 244-45 (2005) (internal quotation omitted). The

discovery rule only postpones the running of the statute of

limitations until it is reasonable to charge plaintiff with

knowing the causal relationship between defendant’s conduct and

plaintiff’s injury. “[T]he discovery rule is not intended to

toll the statute of limitations until the full extent of the

plaintiff’s injury has manifested itself. Rather, that the

plaintiff could reasonably discern that he suffered some harm

caused by the defendant’s conduct is sufficient to render the

discovery rule inapplicable.” Id., 152 N.H. at 233, 876 A.2d at

245 (internal quotation omitted).

Plaintiff commenced this action on November 16, 2006;

therefore, the actions giving rise to his claim for unjust

enrichment either had to have occurred, or had to have not been

reasonably discoverable until, after November 16, 2003 to fall

within the three year statute of limitations. The evidence

adduced at trial, however, readily demonstrated that plaintiff

either knew, or reasonably should have known, about defendant’s

retention of plaintiff’s contribution to BRL well before November

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17, 2003, the date on which the statute of limitations began to

run. There are several facts which support this conclusion.

First, the undisputed evidence established that on February

22, 2001, defendant called plaintiff to inform plaintiff that he

should no longer be affiliated with BRL, and that plaintiff

accepted that decision. Both plaintiff and defendant gave

consistent testimony about the content of the February 22, 2001

telephone call. At that point, plaintiff knew he was walking

away from the company and leaving it in defendant’s hands.

Second, plaintiff’s understanding of the significance of his

agreement to leave BRL is illustrated by the documents which

purported to evidence the terms of his departure. See Pl.’s Exs.

10 & 11. Plaintiff sent defendant a letter, dated February 22,

2001, in which plaintiff “resign[ed] all offices and

responsibilities” of his position at BRL and “relinquish[ed] all

equity claims upon all assets of BRL, also to include any future

revenue due BRL,” in exchange for defendant’s issuance of a

$50,000 note, to compensate plaintiff for “equity contributed and

expenses incurred” on behalf of BRL. See Pl.’s Ex. 10. An

attorney, Marc Lane, then sent defendant a letter, dated March 6,

2001, which transmitted a Settlement Agreement and a Release. 

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3Evidence at trial explained that the attorney, Marc Lane,

had been plaintiff’s former employer and had been retained by

plaintiff and defendant for advice about the corporate structure

of BRL before it was formed. See Pl.’s Ex. 3. The Settlement

Agreement and the Release, combined with plaintiff’s ongoing

relationship with Attorney Lane, all lead to the reasonable

conclusion that plaintiff fully understood the legal

ramifications of his departure from BRL in February and March

2001, when he agreed to stop actively working for the company. 

11

See Pl.’s Ex. 11. Those two documents were intended to enable

plaintiff to resign in exchange for repayment of his capital and

expenses and to release plaintiff from his obligations on the

$250,000, note and Guarantee, given by plaintiff and defendant to

Edward Myslik. See id. Plaintiff agreed to relinquish all

claims against the company, “including, but not limited to,

equity claims upon the assets of the Company and claims upon

future revenues of the Company,” if the Settlement Agreement and

Release were executed. See id., Settlement Agreement ¶ 3. While

none of these documents was ever executed, they explicitly

communicate plaintiff’s willingness to give up his ownership

rights and interests in BRL, and they reveal plaintiff’s

awareness of the effect of withdrawing from the company.3 

Third, even if plaintiff was left confused about his role at

BRL after defendant refused to execute these departure documents,

plaintiff’s tax returns for the years 2000 and 2001 provide

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further evidence that he did not perceive himself as continuing

to be involved with BRL, for purposes of determining when he

first understood defendant was unjustly benefitting from his

contributions to the company without compensating him. See

Def.’s Ex. U. The tax returns do not reflect any income from BRL

or report any losses caused by BRL. The 2000 tax return reports

that plaintiff worked as a consultant. Plaintiff testified that

he did not report the work he did for BRL in 2000 and 2001

because he did not earn any income from it. That testimony did

not explain, however, why he declined to recognize any losses he

sustained, or declined to file a Schedule C or any other tax

document to reflect his involvement with BRL. 

Plaintiff argues that he would not have given up his

ownership interest while simultaneously remaining liable for the

corporate debt to Myslik; yet the failure to recognize any tax

consequences from his work with BRL supports the conclusion that

as early as 2001, when his tax return for 2000 was filed, he was

disassociating himself from BRL. This tax treatment also

undermines plaintiff’s claim that he believed he continued to

have an ownership interest in BRL after 2001. Even though the

evidence showed that he had not severed his financial ties to the

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company when he left in February 2001, at that time plaintiff

knew, or should have known, that he was leaving behind his

member’s interest in the company with defendant.

Fourth, plaintiff clearly perceived himself as not being

part of BRL in September 2001, when he contacted its principal

creditor, Edward Myslik, about releasing him from corporate debt

which plaintiff had personally guaranteed. As plaintiff put it:

I hope that you will reconsider releasing me

from the guarantee. After reading the guarantee

again, since I am no longer a member of Bradley

Reed (and haven’t been paid for any work or 

reimbursed but for a tiny bit of my expenses

and none of the equity investment), it doesn’t

make sense that I should still be responsible

for the note. And since I’m no longer part

of Bradley Reed, it’s not my intent to be

responsible for any further obligations of the

company under the guarantee.

Def.’s Ex. D. This dispels any lingering doubt about when all

the necessary elements of plaintiff’s unjust enrichment claim 

were present.

Plaintiff knew in 2001 that he had the basis for an unjust

enrichment claim. He had left BRL without any compensation,

despite have contributed both financially and professionally. He

also knew that defendant was continuing to operate the business

and would use the contributions plaintiff had given to it, both

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in the form of the professional services he had rendered to get

the company off the ground and in the form of the capital

contributions to and expenses incurred on behalf of the company. 

Defendant openly retained the benefits plaintiff gave to the

business, which plaintiff also clearly understood, or should have

understood, that defendant would use in his efforts to turn the

business around. Defendant needed only to have “innocently

receive[d] a benefit and passively accept[ed] it,” PetrieClemons, 122 N.H. at 127, 441 A.2d at 1172, without compensating

plaintiff, for the unjust enrichment to have occurred. 

While plaintiff may have been defrauded into believing that

eventually he would receive some remuneration, and that belief

may have caused him to delay pursuing any action against

defendant, plaintiff certainly knew that defendant kept his

member’s interest in BRL in 2001 and, therefore, could have

“reasonably discern[ed] that he suffered some harm caused by []

defendant’s conduct” in 2001, more than five years before he

commenced this action. Wood, 152 N.H. at 233, 876 A.2d at 245

(internal quotation omitted). His claim for unjust enrichment,

therefore, is barred by the statute of limitations.

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 3. Defendant’s Motion for Judgment as a Matter of Law,

 or in the alternative for a New Trial (document no. 98)

Defendant has moved for judgment as a matter of law, or in

the alternative for a new trial, claiming that the jury’s finding

of fraud was against the weight of the evidence, requiring either

that the verdict be reversed or a new trial ordered to prevent

injustice. See Fed. R. Civ. P. 50 & 59. In support of this

position, defendant makes three arguments. First, defendant

claims he made no misrepresentation of material fact, on which

plaintiff relied, when he promised he would repay plaintiff when

the company had the money to do so; second, he states that

because he first made this promise in February 2001, plaintiff’s

fraud claim is barred by the statute of limitations; and third,

he argues that the damage award must be reduced because it

erroneously included $29,000, the exact sum plaintiff paid Myslik

in settlement of the state court action.

Plaintiff naturally opposes the motion, first contending

that it should be denied because defendant bases his renewed

motion, filed pursuant to Rule 50(b), on a different ground than

he based the oral motion, made pursuant to Rule 50(a), at trial

before the jury verdict. See Casillas-Diaz v. Palau, 463 F.3d

77, 81 (1st Cir. 2006) (requiring a Rule 50(b) motion to be

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limited to the same grounds as the Rule 50(a) motion was); see

also 9 James W. Moore, Moore's Fed. Prac. § 50.43[3] (3d ed.

2008) (explaining that “Rule 50(b) ordinarily bars a renewed

motion on any ground not specifically raised in the pre-verdict

Rule 50(a) motion”). In support of this argument, plaintiff

asserts defendant based his Rule 50(a) motion, made at the close

of the evidence, on the following two statements that plaintiff

alleges constituted the fraud:

(1) There was no money in Bradley Reed to pay

Schell’s expenses and capital contributions.

(2) Kent told Schell that when he sells assets,

he will pay Schell.

See Pl.’s Resp. to Def.’s Mot. for J. as a Matter of Law

(document no. 107) (“Pl.’s Resp.”) at 5 (citing Jury Trial Day 5,

Jan. 27, 2009, Tr. at 2:10-13) (document no. 104). Plaintiff

contends that defendant bases the pending Rule 50(b) motion not

on these two statements, but instead on “Kent’s February 21, 2001

promise to personally compensate Schell for his expenses and

capital contribution.” See Pl.’s Resp. at 6 (citing Def.’s Mot

for J. as a Matter of Law (document no. 98)). (“Def.’s M.”). 

Plaintiff argues that because the February 21, 2001 promise to

pay is not the same alleged fraudulent statements identified at

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the close of evidence in defendant’s Rule 50(a) motion,

defendant’s Rule 50(b) motion should be denied.

I disagree with plaintiff’s reading of the transcript and

pending motion. In the Rule 50(b) motion, defendant states that

the allegedly fraudulent statements were: “that Mr. Kent, in

2001, agreed to repay $47,524 and falsely represented (or

impliedly represented) that Bradley Reed did not have the money

at the time to pay Mr. Schell.” Def.’s M. at 5. That sentence

fairly summarizes the two statements identified by defense

counsel when he made the Rule 50(a) motion at the close of

evidence. Additionally, at the close of plaintiff’s case,

defendant first asserted a Rule 50(a) motion, claiming there had

been no evidence of fraud in emails or in financial statements,

or any misrepresentation of an important fact to plaintiff. See

Jury Trial Day 3, Jan. 23, 2009, Tr. at 2:19-25, 3:2-7 & 13-23

(document no. 103). While this argument did not focus on any

particular statement or statements, but addressed the evidence

generally, plaintiff countered that from 2000 through 2006, “Mr.

Kent told Mr. Schell that the company had no money and that he

was entitled to no money,” id., Tr. at 5:1-4, and “that he would

pay Mr. Schell, which we’re going to present to the jury as an

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act of misrepresentation intending to have Schell rely on it, as

he sells off the inventory that Mr. Schell has an interest in.” 

Id., Tr. at 5:12-16. Those two statements are essentially the

same as the statements defendant identified as the bases for both

his Rule 50(a) and 50(b) motions. 

The essence of the alleged fraud was that plaintiff was led

to believe there was no money to pay him when he left BRL in

February 2001 and that defendant would pay him as money came

available from the sale of assets, but defendant never did. As

the court found in denying defendant’s Rule 50(a) motion:

This is a lawsuit for fraud. What was the 

fraud? . . . that the plaintiff said that 

there was money in the business, and in 

fact, [defendant] said that there was none, 

and that [defendant] was paying his expenses

but not [plaintiff’s].

Id., Tr. at 6:16-20. The substance of the alleged fraud has not

changed, and defendant’s motions for judgment as a matter of law

have challenged the same allegedly fraudulent statements. See 9

Moore’s, § 50.43[2] (technical precision not required when the

trial court is aware of the movant’s position). Defendant has

not based the pending Rule 50(b) motion on a “neoteric legal

theory,” Diaz, 463 F.3d at 81, and plaintiff’s claim that

defendant has is unavailing. 

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(a) The Jury Verdict

Turning to the substance of defendant’s motion for judgment

as a matter of law, defendant has not carried his heavy burden of

proving the evidence of fraud was insufficient. To meet this

burden, defendant must show that “reasonable persons could not

have reached the conclusion that the jury embraced.” Sanchez v.

P.R. Oil Co., 37 F.3d 712, 716 (1st Cir. 1994). 

We must examine the evidence in the light

most favorable to plaintiff and determine

whether there are facts and inferences reasonably

drawn from those facts which lead to but one

conclusion – that there is a total failure of

evidence to prove plaintiff’s case.

Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23, 29 (1st Cir.

2004). In reviewing the evidence, the court “‘may not consider

the credibility of witnesses, resolve conflicts in testimony, or

evaluate the weight of the evidence.’” Sanchez, 37 F.3d at 716

(quoting Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987)). 

Defendant argues that the evidence does not show he

defrauded plaintiff because (1) he did not misrepresent the

financial condition of BRL when plaintiff left in 2001 because

there was, in fact, no money or assets from which to pay

plaintiff, as evidenced by the year end balance sheets and tax

returns for 2000 and 2001, see Def.’s Exs. C, K & T; (2) that, at

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that time, plaintiff knew there was no money, so plaintiff could

not have justifiably relied on the alleged misrepresentation

about available money to pay him; and (3) that defendant only

promised to pay plaintiff when BRL had the money to do so, which

is not a misstatement of material fact. In short, defendant

submits the evidence showed that “by the end of 2000 and

thereafter, there were never sufficient funds to pay [BRL’s]

current liabilities or to pay Mr. Myslik’s loan,” Def.’s M. at 8,

and his representation to plaintiff of that fact was true, not

fraudulent. Defendant also submits that plaintiff knew this when

he left the company in 2001, so his claim is barred by the

statute of limitations.

Defendant misconstrues plaintiff’s claim of fraud. The

evidence showed, and plaintiff admits, that he understood the

Myslik debt was outstanding in February 2001 when he agreed to

stop working for BRL and that it held priority over his own

claims for repayment. Plaintiff also admits that defendant’s

promise in February 2001 to repay his expenses and capital

contributions as money became available gave rise to an oral

contract, which is barred by the statute of limitations. Instead

plaintiff’s fraud claim is that (1) defendant represented to him

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that BRL did not have the funds to reimburse him, yet defendant

was reimbursing himself; and (2) defendant repeatedly told

plaintiff after his February 2001 departure that he would be paid

as BRL lumber inventory was sold and money became available, yet

inventory was sold and plaintiff was not repaid while defendant

continued to pay himself. See Pl’s Resp. at 7. Plaintiff

contends he justifiably relied on defendant’s misrepresentations

about BRL’s ability to pay throughout the disputed time period,

and was strung along until discovery of BRL’s financial records

in the Myslik state court litigation exposed defendant’s fraud.

To uphold the jury’s finding of fraud, I need only find some

evidence that shows the jury’s conclusion was reasonable. See

Vazquez-Valentin, 385 F.3d at 29 (upholding verdict unless there

is a “total failure of evidence”); see also Coastal Fuels, Inc.

v. Caribbean Petroleum, 79 F.3d 182, 188 (1st Cir. 1996)

(reversing verdict only if the evidence “points so strongly and

overwhelmingly in favor of [defendant], that a reasonable jury

could not have arrived at a verdict for [plaintiff]”). The jury

verdict reached here easily clears this very low evidentiary

hurdle. To begin with, plaintiff’s reliance on defendant’s word

was justifiable, because the evidence showed that the parties had

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a long, positive history together, which began with defendant as

plaintiff’s baseball coach, then mentor, employer and eventual

business partner, and which created a solid basis for plaintiff’s

trust in defendant. Next, it was clearly established by

consistent testimony from both parties that defendant told

plaintiff that as assets were sold and cash became available,

plaintiff would be paid; yet the evidence showed that assets were

sold and the Myslik debt was extinguished, freeing up cash, and

plaintiff was never repaid while defendant continued to take

money out of the company for himself. Additional evidence which,

in isolation perhaps may be innocently explained but when viewed

in combination hints at more deceptive objectives, included the

changing corporate forms, back-dating of agreements, co-mingling

of funds, inability to explain entries in the general ledgers,

and confusing testimony about the ownership and location of the

critical lumber inventory. This evidence readily supports the

jury’s finding that defendant defrauded plaintiff by deliberately

manipulating BRL’s corporate form and finances to advance his own

self-interest and avoid repaying plaintiff. 

The evidence of fraud included, but is not limited to, the

following: 

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1. In 2000, BRL had income from sales which

enabled defendant to pay himself expenses although he 

told plaintiff there was no money, testified there 

was no money, and in fact paid very little of plaintiff’s 

expenses. See Pl’s Exs. 6 & 22. The 2000 General Ledger

shows sales to El Paso Anderson, Professional Forest,

Britton Lumber, Wickes Lumber, George Machino, Vermont

Wholesale, Gordon Brown and Gillies & Prittie, as well

as the fabled Maibec sale. These sales substantiated 

plaintiff’s claim that he was busy working on sales other 

than Maibec, which he explained was defendant’s deal, and 

undermined defendant’s testimony that the company had no 

money because plaintiff had botched the Maibec deal.

2. In 2000, plaintiff contributed $28,837.93 to 

BRL, see Pl.’s Ex. 6 at JKS1281, Ex. 23 at JKS2005, 

& Ex. 52 at ¶ 3, and defendant contributed $32,200.00.

See Pl.’s Ex. 6 at JKS1282. These documents undermined

defendant’s testimony that he did not know what he had

contributed, but that he knew plaintiff had contributed

nothing, or next to nothing. These documents also show 

that the parties’ capital contributions were not 1/3 

plaintiff and 2/3 defendant, but were closer to 50/50 by 

year end. See id.

3. In 2000 and 2001, defendant manipulated BRL’s 

corporate form from an LLC to a sole proprietorship 

depending on which organizational structure most

expeditiously served his needs. For example, defendant

relied on LLC debt prioritization rules to avoid paying

plaintiff while the Myslik debt was outstanding, yet 

ignored those rules when he repaid himself over $67,000

in contributions he had made or loans he had given to 

the company. See Pl.’s Exs. 5 & 6. Defendant also

testified that he relied on the LLC form to limit his 

personal liability to plaintiff and other corporate 

creditors, yet also admitted that he orchestrated the 

voiding of the LLC structure in early 2001 to limit the 

parties’ potential tax liability and enable plaintiff 

to be severed from the company. See Pl.’s Exs. 2 & 9, 

Def.’s Ex. H at LAND250-262, Trial Day 2, Jan. 22, 2009.

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 23 of 38
24

4. In 2001 defendant treated BRL as a sole 

proprietorship and sold almost $98,000 in lumber,

yet reported both business and personal income losses.

See Pl.’s Ex. 20 & LAND238-39. Defendant paid many

expenses, including a “Cost of Goods Sold - Other” 

expense of more than $57,000 and sales commissions, 

see id., yet paid nothing on plaintiff’s claims.

 

5. In July 2001, Myslik sent defendant a demand

letter to recover his loan to BRL. At that time, Myslik

told defendant he would set up a bank account in Maine

to deposit proceeds from the sale of inventory through

the summer. See Pl.’s Ex. 12. The next day defendant

informed his attorney, Marc Lane, about this arrangement

and his expectation that the “sale of about half our

inventory will satisfy this obligation.” See Pl.’s Ex. 

13. Since the inventory was paid for and the company 

had only “about $25,000 in other obligations,” defendant

was optimistic about the business. Defendant and Myslik 

agreed that Myslik would retain full control over BRL’s 

receivables until $275,000 was paid, or, if by year end

the loan was not paid down, the terms of the February 4, 

2000 note would control again. See id. & Pl.’s Ex. 14. 

6. The testimony was that the parties did not

communicate in 2001, so plaintiff had no knowledge of

this lockbox arrangement with Myslik. The documents

show that plaintiff contacted Myslik directly to get 

released from the February 4, 2000 note. See Def.’s 

Exs. D & E.

 7. Although defendant testified that in March 2003

he and Myslik agreed to retroactively form a partnership 

effective January 1, 2002, and back-dated an agreement to

December 15, 2001, both the documents and the progression 

of events undermine that testimony. The Partnership 

Agreement between Myslik and defendant was dated December 

15, 2001, and signed by both parties also on that date.

See Def.’s Ex. G, Pl.’s Ex. 15. That agreement provided 

that effective January 1, 2002, Myslik would convert his 

debt, totaling $234,000 into a 50% ownership position in 

BRL. The terms and timing of this agreement, in December

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 24 of 38
25

2001, are consistent with Myslik having sold some 

inventory from July through December 2001, pursuant

to the lockbox arrangement discussed infra ¶ 5, and 

reducing the debt from $275,000 to $234,000. Most

significantly, the agreement explicitly provided for

how Myslik would control the inventory going forward:

“From January 1, 2002 until December 31, 2002,

Edward Myslik may sell BRL inventory stored in

Lewiston Maine, and may keep all proceeds of 

sales. On December 31, 2002 EM will provide an

accounting of the sales made by him and his 

capital contribution to BRL will be reduced by 

the sales amount. Thereafter all BRL business 

will be transacted by BRL exclusively.”

Id. 

8. There is no evidence that plaintiff was informed 

of the Myslik debt being extinguished or, accordingly,

his obligation on the Guarantee being released. To the

contrary, the evidence showed that plaintiff thought the

Myslik debt was still outstanding and asked to see BRL’s

financials in September 2002. See Pl.’s Ex. 24. As 

plaintiff admitted to Myslik, “I can’t quite wrap my 

mind around the specifics of a new relationship between

you and me, and knowing where Kent stands would be very 

useful.” Id.

9. Plaintiff testified that in September 2002 he

called defendant and demanded payment. A September 27,

2002 email exchange substantiates that testimony. In 

it, defendant provided plaintiff with a partial explanation 

of the situation with Myslik. See Pl.’s Ex. 25. Although 

defendant told plaintiff Myslik had conducted himself 

towards BRL in a manner that should have invalidated the 

Guarantee and had spoken of capitalizing the debt into BRL 

equity, he declined to mention the December 15, 2001 

Partnership Agreement that cancelled the debt. He also 

misrepresented that he “believe[d] lumber owned by Bradley 

Reed has been sold by Ed as Sebago Lake property,” id., 

when in fact he knew he had agreed to Myslik selling BRL’s 

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 25 of 38
26

lumber stored in Maine to reduce Myslik’s loan to BRL.

See Pl.’s Exs. 12, 13 & 15. 

10. During 2002, defendant sold over $35,000 of

BRL inventory, without making any payments to plaintiff

or Myslik. See Pl.’s Ex. 32, Def.’s Ex. T-2002 at LAND198. 

The Profit & Loss statement for 2002 states that defendant

was paid $15,300, and that sales commissions of over $3,500

were paid, presumably to defendant since he testified that

he was running BRL in 2002, while Myslik was running his

own lumber company in Maine. When put in context, that 

testimony is consistent with the December 15, 2001, 

Partnership Agreement that provided for Myslik, in 2002,

to keep the proceeds from sales of only that BRL lumber

that was stored in Maine for himself and to use the 

proceeds from those sales to reduce his equity position

in BRL. 

11. Consistent with the December 15, 2001 Partnership

Agreement, Myslik sold BRL lumber stored in Maine through 

his company, Sebago Lake Lumber. See Ex. 35 at TWK648. 

Also consistent with that agreement, Myslik gave defendant

the required accounting on January 1, 2003. See Def.’s 

Ex. G at JKS0147. Myslik wrote “the total income which

will reduce my capital contribution to Bradley Reed Lumber 

LLC was $35,750.” Id.

12. At the end of 2002, Myslik’s $234,00 equity in

BRL was reduced by the $35,750 he had earned from the sale

of the lumber stored in Maine. Pursuant to the Partnership

Agreement, his equity position in BRL at that time would

have been approximately $200,000. See Pl.’s Ex. 15. That

valuation is substantiated by the several demands Myslik 

made on defendant in December 2002 and early 2003, asking 

for a settlement of $200,000. See Def.’s Ex. F. That 

demand for payment, however, conflicts with the 2002 and 

2003 BRL tax returns, which indicate the business was 

operated as a partnership during that time, as provided 

by the December 15, 2001 Partnership Agreement. 

See Def.’s Ex. I. 

While these documents are confusing because there 

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 26 of 38
27

should not have been any BRL note for Myslik to enforce 

as a creditor when he was working with defendant as a 

partner, in combination they support the inference that 

defendant and Myslik were shifting their relative positions 

to advance their individual financial interests. In 

particular, on January 13, 2003 when Myslik informed 

defendant he needed to stop working in the business for 

physical reasons, he offered to say the loan was never 

late if it would help defendant and opined: 

“The balance sheet issues can be easily resolved

by forensic accounting. I know God damn well 

that things will need to be unraveled and carefully

studied no matter what the outcome is.”

Id. at JKS1347. 

13. In early 2003 when these negotiations were

transpiring between defendant and Myslik, plaintiff

still had not been paid and had no reason not to believe

that the original note and guaranty were still valid and

enforceable. There was no evidence that he knew about the 

arrangement between defendant and Myslik. His ignorance

is validated by the documents which reflect Myslik and 

defendant’s evolving and amorphous business relationship, 

discussed infra, ¶ 12.

14. The evidence showed that on January 1, 2003,

the inventory was wholly owned by BRL, unencumbered by 

Myslik’s security interest. Even if defendant’s testimony 

was accepted that the December 15, 2001 Partnership 

Agreement was actually formed in March 2003 and back-dated, 

pursuant to the terms of that agreement, Myslik had 

converted “all BRL obligations to him to capital” and by 

January 1, 2003, “Thomas Kent and Edward Myslik will share 

equally in all profits, losses and other benefits that 

normally accrue to members of the LLC.” Pl.’s Ex. 15. 

Defendant testified that the inventory in Lewiston was 

loaded on a tractor trailer and transferred to their joint 

control in Littleton, NH, with 50/50 ownership between him 

and Myslik. That lumber was inventoried and valued at 

$107,453. See Pl.’s Ex. 38. The evidence also showed 

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 27 of 38
28

that checks were written on BRL’s bank account during

2003, further supporting the conclusion that defendant 

was continuing the same lumber business, just in a

different corporate form. See Pl.’s Ex. 29. 

15. In July 2003, Ammonoosuc Lumber Company was

formed. See Pl.’s Ex. 27. Although defendant testified

that he and Myslik were actively conducting the business

of BRL Partnership together as Ammonoosuc Lumber, the 

Articles of Incorporation list of incorporators has 

Myslik’s name scratched out and names only defendant. 

See id. The 2003 tax return reported the business as a 

partnership, and reported defendant received a guaranteed 

payment to partner of $10,245, plus other income. See

Def.’s Ex. I, Schedule K. 

16. Defendant testified that he told plaintiff he 

had formed a partnership with Myslik that was doing business

as Ammonoosuc Lumber, and that the deal had eliminated the

note and released them from the guaranty. Defendant could

not remember exactly when he told plaintiff this, but he

remembered that plaintiff was very happy. Plaintiff 

testified that defendant first called him with this news

in 2003. This is the first evidence that plaintiff 

understood his reimbursement claims could be paid, because 

the Myslik debt had been extinguished. There was no 

evidence that plaintiff knew what the financial position 

of BRL was when he was told about the debt-equity swap 

partnership agreement with Myslik.

17. Plaintiff testified that after this news, he

periodically called defendant asking about when he could

expect payment. Defendant corroborated that testimony,

but clarified that he told plaintiff he would only be 

repaid when the business made money and was in a position

to do so, because it was a corporate, not his personal, 

liability.

18. The 2003 General Ledger shows lots of assets

being sold, yet plaintiff received no payments. See

Def.’s Ex. V. During 2003, defendant received more than

$19,000 in “loan payments,” and Myslik was paid $14,400.

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 28 of 38
29

See Def.’s Ex. T-2003 at LAND149 & 151. 

19. Myslik abruptly left BRL in late 2003. Defendant

testified he did not know why Myslik left. The evidence

showed that Myslik left because he was “frustrated by

Thomas Kent’s repeated, unfulfilled promises to pay” 

and he “felt he could no longer trust” defendant. See

Def.’s Ex. P, ¶ 10.

20. In April 2004, Myslik contacted BRL’s long-time 

accountant, Peter Land, to inform Land the BRL partnership 

tax return was incorrect. Land advised Myslik that the 

return was correct based on the documents he had received 

from defendant, including the December 15, 2001 Partnership 

Agreement, but that if Myslik had other information he 

should provide it and should file a corrected tax return. 

See Pl.’s Ex. 37 at LAND131.

21. Immediately following Land’s handwritten notes 

from his conversation with Myslik was another note written

by Land, presumably from a follow up conversation he had

with defendant. See id. at LAND133. It is part of the 

accountant’s file for the 2003 tax returns, and states:

“Per TK - Ed [Myslik] shipped the balance of the

unsold lumber to him in Littleton and abandoned

the company - 2003 should be the final return as

Ed has apparently resigned the partnership.”

22. As reported on the BRL partnership tax return

for 2003, the inventory’s value at year end was $130,812.

See Def.’s Ex. I at JKS1426.

23. The evidence showed that by 2004, defendant was 

operating the lumber business as a sole proprietorship 

again, with the balance of the original inventory. See 

Pl.’s Ex. 43, Schedule C. In 2004, defendant opened a 

new bank account at Mascoma Savings Bank, for Ammonoosuc

Lumber, but he testified that he used the account for

both business and personal matters. See Pl.’s Ex. 40.

This co-mingling of funds was consistent other evidence

that depicted a cavalier attitude about tracking the 

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 29 of 38
30

finances of his business and the accounting of its 

transactions. Defendant testified his bookkeeper had

left at the end of 2002, so beginning in 2003 he “just 

wrote checks” and “let the accountant figure it out.”

24. Defendant testified that he did not buy any

new lumber in 2004, that it was the same inventory that

had carried through all these corporate forms, but that

it was not BRL, LLC’s lumber because the LLC had been 

extinguished effective January 1, 2000. This testimony

contradicted other evidence introduced at trial, of

testimony defendant had given at a January 2005 deposition, 

when he stated that the lumber sold through Ammonoosuc

was BRL’s inventory. The documentary evidence cited

infra, ¶¶ 14 &21, also contradicts defendant’s trial 

testimony, by showing the inventory that originally 

belonged to BRL was the same inventory defendant was

selling in 2004. 

25. In September 2004, Myslik sued plaintiff and

defendant on the original debt, and reached a settlement

with both parties independently. Regardless of the merits

of Myslik’s claims, the lawsuit and settlement raised the

significant question of why defendant had not cancelled

the note and voided the security instruments when the 

Partnership Agreement was executed, particularly in

light of the testimony that the Myslik debt had saddled

the business for years. While the evidence provided no

answer to this question, the conundrum of what defendant’s

deal with Myslik really was further bolstered plaintiff’s

theory of fraud and deception.

This chronology highlighting defendant’s failure to be

forthright with plaintiff about the sale of inventory and BRL’s

ability to repay his financial contributions to the company

readily supports the conclusion that defendant defrauded

plaintiff. It also demonstrates the reasonableness of the jury’s

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 30 of 38
31

determination that plaintiff could not have discovered the fraud

until sometime after November 17, 2003. There simply is not “a

complete failure of evidence” to support the verdict, but rather

a substantial amount of evidence on which a reasonable jury could

base a finding of fraud. The jury’s verdict for plaintiff on his

fraud claim shall be upheld, and defendant’s motion for judgment

as a matter of law is denied. 

(b) The Damage Award

In the alternative, defendant argues for a new trial under

Rule 59. A motion to alter or amend a judgment, see Fed. R. Civ.

P. 59, may only be granted if “the verdict is against the

demonstrable weight of the credible evidence or results in a

blatant miscarriage of justice.” Sanchez, 37 F.3d at 717. 

Defendant argues that the jury award erroneously includes the

$29,000 plaintiff paid Myslik to settle Myslik’s state court

claims against plaintiff, which defendant cannot be held liable

for because that “payment was not claimed to be a result of Mr.

Kent’s alleged fraud.” Def.’s M. at 15. 

If the court finds that the jury’s verdict is excessive, it

may order a new trial, or it may reduce the verdict and avoid a

new trial by obtaining the plaintiff’s acceptance of the reduced

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 31 of 38
32

damage award. See 12 Moore’s § 59.13[2][g][iii] at 59-83; see

also Franceschi v. Hosp. Gen. San Carlos, Inc., 420 F.3d 1, 5

(1st Cir. 2005) (reducing awards not rationally based on the

evidence that are “grossly excessive, inordinate, shocking to the

conscience of the court”). A remittur, as this process is

called, enables the court to reduce a damage award which “after

weighing all the evidence and other relevant factors. . . is

against the clear weight of the evidence or otherwise results in

a miscarriage of justice.” 12 Moore’s § 59.13[2][g][iii] at 59-

84. If certain identifiable sums should not be included in the

jury’s verdict as a matter of law, the rules allow the court to

reduce the award in some circumstances even without obtaining the

plaintiff’s agreement. See id.

Defendant persuasively argues the damage award includes the

$29,000 payment plaintiff made to Myslik. The damages awarded

were $76,524.93, which is the exact sum total of plaintiff’s

capital contributions ($28,937.93), plus his expenses

($18,587.00), plus his Myslik settlement payment ($29,000). 

These figures were in evidence, and plaintiff’s counsel

specifically recommended the jury look at defendant’s admissions

for guidance in determining damages. See Pl.’s Exs. 48 & 51; 

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 32 of 38
4Defendant erroneously submits “This Court confirmed the

mathematically correct amount [of damages (presumably)] in its

prior orders.” Def.’s M. at 15. While the Summ. J. Order

identifies what portions of plaintiff’s claims asserted in Counts

I and II were covered by the Indemnification Agreement and

recoverable as damages, the order neither considered nor ruled on

plaintiff’s fraud claims asserted in Count IV that were tried to

the jury and are at issue here. 

33

Jury Trial Day 4, Jan. 26, 2009, Tr. at 193-94. While we do not

know how the jury calculated the damage award, the sum is a

remarkable coincidence.

At summary judgment, I found that an Indemnification

Agreement made defendant liable for 2/3 of the damages plaintiff

sustained in connection with Myslik’s claims on the Guarantee

that secured Myslik’s original loan to BRL. See infra, § 1. I

explicitly found, however, that plaintiff’s settlement payment to

Myslik was not covered by the Indemnification Agreement because

claims on the Guarantee had been dismissed, and plaintiff’s

settlement payment stemmed from his separate obligations under

the U.C.C. on the promissory note. See Sum. J. Order at 11 n.3. 

Defendant now seems to argue that because defendant was not

liable under the Indemnification Agreement for that $29,000

payment, the jury’s verdict is based on a manifest error of law.4

Defendant is correct that the $29,000 paid to Myslik could

not be awarded as damages for the indemnification claims asserted

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 33 of 38
34

in counts I and II and discussed infra, § 1. The amount may be

awarded, however, as compensation for the fraud defendant

committed. As discussed at length above, the evidence supports

the jury’s conclusion that over the course of several years,

defendant misrepresented BRL’s ability to satisfy its debt

obligations with its current assets. Plaintiff relied on

defendant’s representations about the company’s financial

position, and did not know definitively whether defendant had

managed to extinguish the Myslik debt or release him from the

Guarantee. The evidence conflicted about the effectiveness of

the Myslik-Kent Partnership Agreement, and the fact that Myslik

had stated a claim under the U.C.C. on the promissory note

against plaintiff gives rise to the inference that, in 2006 when

plaintiff settled the claim, he believed the note had not been

cancelled. It was reasonable for the jury to conclude that

plaintiff settled the Myslik suit because he had been defrauded

by defendant about what Myslik’s rights against him were and

thought he was still liable on the original promissory note. 

“Except in those cases in which it is apparent as a matter

of law that certain identifiable sums included in the verdict

should not have been there, the court may not arbitrarily reduce

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 34 of 38
5This statement is even more significant because it is from

Myslik’s second affidavit, made on November 6, 2008 at

defendant’s request and given specifically to refute Myslik’s

August 31, 2007 affidavit given to plaintiff, allegedly under

some duress. Cf. Def.’s Ex. Q & Pl.’s Ex. 52. 

35

the amount of damages, for to do so would deprive the parties of

their constitutional right to a jury.” 11 Charles A. Wright,

Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. Civ. 2d §

2815 at 159 (2d ed. 1995). I cannot conclude that the $29,000

should not have been included as a matter of law. The evidence

showed that defendant settled Myslik’s claims against him for

“essentially nothing. We agreed to divide the Wildwood lumber.” 

See Def.’s Ex. Q at 2.5 The evidence also showed that Myslik’s

role at BRL was recast many times throughout the contested period

and gave rise to the reasonable inference that his elusive and

uncertain status with the company was not unintentional. The

jury reasonably could have determined that defendant deliberately

created a conflicting and confusing documentary trail of BRL’s

business activity and identity to hide assets and avoid paying

creditors, including both plaintiff and Myslik. Based on the

evidence of fraud adduced at trial and discussed above, the

jury’s finding that part of the damages plaintiff sustained from

defendant’s fraud included the money he paid Myslik cannot be

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 35 of 38
36

considered legally incorrect. The verdict is not against the

weight of the evidence, and defendant’s motion, in the

alternative for a new trial under Rule 59, is denied.

4. Plaintiff’s Motion for Determination of the 

Amount of Attorney’s Fees to be Awarded 

under the Jury Verdict (document no. 101)

Plaintiff has submitted a claim for $139,703.50 in attorneys

fees. Defendant does not object to the hourly rate, nor to

specific time entries. However, whether one looks to New

Hampshire or federal law, defendant correctly notes that

plaintiff must, but has not, made any effort to allocate fees

among his various claims. His jury success at trial for

attorney’s fees was only on his fraud claim. “Where a party

prevails upon some claims and not others, and the successful and

unsuccessful claims are analytically severable, any fee award

should be reduced to exclude time spent on unsuccessful claims.” 

LaMontague Builders, Inc. v. Brooks, 154 N.H. 252, 261, 910 A.2d

1162, 1169 (2006).

Since counsel has not provided any allocation, he must do so

within ten (10) days of the date of this order. Counsel is

ordered to review the time records and allocate just those fees 

attributable just to the fraud claim. In addition, where the

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37

entry relates to more than one entry, he is to allocate it. No

allowance is to be given for entries on claims attributable to

non-fraud claims. Where the entry is insufficient to identify

which, if any, claim is involved, no fees are to be sought and no

more will be awarded. No fees are to be awarded for entries

after the jury verdict. Duplicative fees are to be deleted. 

Plaintiff is to eliminate all fees attributable to summary

judgment matters.

Defendant will have ten (10) days to respond to the filing.

Conclusion

For the reasons set forth above, the pending motions are

disposed of as follows:

1) Plaintiff’s motion for partial award of attorney’s fees

(document no. 81), GRANTED. Plaintiff is awarded $21,288.32;

2) Plaintiff’s claim for unjust enrichment (Count III of

the Complaint), DENIED;

3) Defendant’s motion for judgment as a matter of law or,

in the alternative, for a new trial (document no 98), DENIED;

4) Plaintiff’s motion for determination of the amount of

attorney’s fees to be awarded under the jury’s verdict (document

no. 101), DENIED as submitted. Plaintiff shall refile his

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 37 of 38
38

request for attorney’s fees within ten (10) days of the date of

this order. Defendant shall have ten (10) days to respond to

plaintiff’s request. Failure to abide by these time deadlines

will result in non-consideration of the untimely filing.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 6, 2009

cc: David A. Strock, Esq.

 Melinda J. Caterine, Esq.

 K. William Clauson, Esq.

Case 1:06-cv-00425-JM Document 108 Filed 04/06/09 Page 38 of 38