UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Rockwood

and Roxana Marchosky

v. Civil No. 08-cv-168-JL

SKF USA Inc.

SUMMARY ORDER

Plaintiffs Robert Rockwood and Roxana Marchosky have moved

to amend their complaint in this action, which arises out of a

failed deal between them and defendant SKF USA, Inc. for the

acquisition of the plaintiffs’ company, Environamics, Inc. The

motion follows the appearance of new counsel for the plaintiffs,

whose former counsel withdrew with leave of court as the trial

date approached. SKF objects to the proposed amendment as not

only untimely, but futile, arguing that it is barred by judicial

estoppel and fails to state a claim for relief in any event.

The prior version of the plaintiffs’ complaint included,

among other claims, a count for promissory estoppel. In support 1

of this claim, the plaintiffs alleged that SKF made two promises: 

(1) that “it would definitely exercise its option to purchase

The second amended complaint also made claims for breach of 1

contract (count 1), equitable estoppel (count 3), violation of

the New Hampshire Consumer Protection Act (count 4), and

violation of the covenant of good faith (count 5).

Case 1:08-cv-00168-JL Document 181 Filed 08/24/10 Page 1 of 8
Environamics pursuant to the terms of the Option Agreement,” a

written contract between the parties, and (2) that “its sales

efforts would conform with [a] letter [from its vice president of

business development] including that SKF would spend $10 million

and put numerous salespeople in the field as part of its sales

effort on Environamics products.” The plaintiffs alleged that

they had relied on these promises to their detriment, most

significantly by personally guaranteeing a bank loan to

Environamics, on which it eventually defaulted.

SKF moved for summary judgment on all of the plaintiffs’

claims, arguing, as to the promissory estoppel count, that the

alleged promises were too vague to enforce. SKF characterized

the alleged promises as (1) a promise to buy Environamics, as

distinguished from a promise to buy Environamics pursuant to the

terms of the option agreement and (2) to expend the sales efforts

outlined in the letter. At oral argument on the summary judgment

motion, the court (Barbadoro, J.) ordered each of the plaintiffs

to file an affidavit stating “the time, place and specific

content of each of the two oral contracts” alleged.

During an ensuing discussion, counsel for the plaintiffs

made reference to another Environamics employee who claimed to

have heard the alleged oral promises. The court responded that

what this employee claimed to have heard was that SKF “was going

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to buy the company. That isn’t an agreement that’s sufficiently

definite to be enforceable.” Counsel for the plaintiffs

responded, “yes.” Judge Barbadoro court went on to state that,

based on Rockwood’s interrogatory answers, he should be able to

“swear to a statement that [SKF] told [him that it] would buy the

company in accordance with the terms of the option. If [SKF] did

that, then that is an offer, it’s sufficiently definite.” Each

of the plaintiffs went on to submit an affidavit attesting to a

number of oral statements by SKF’s vice president that SKF would

buy Environamics pursuant to the Option Agreement. The court

then denied SKF’s motion for summary judgment in a margin order.

Through their pending motion to amend, the plaintiffs seek

to add a number of allegations in support of the promissory

estoppel claim so, as they explain, “it is tied to the larger and

more general promise, ‘Don’t worry, we are buying your company.’ 

It is this inducement that gives rise to the amended claim.”2

SKF argues that this theory is essentially the same one

preemptively rejected by the court at the summary judgment

hearing and, as a result, abandoned by the plaintiffs, who

In the proposed amended complaint, the promissory estoppel 2

claim no longer relies on SKF’s alleged commitment to expend $10

million in a sales campaign for Environamics products, though

that allegation still appears in support of other claims, i.e.,

breach of contract, breach of the covenant of good faith, and

violation of the Consumer Protection Act.

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asserted instead that SKF had made oral promises to buy

Environamics pursuant to the terms of the Option Agreement. 

Thus, SKF maintains, the plaintiffs are judicially estopped from

resurrecting, through the proposed amendment, a theory based on

SKF’s allegedly “more general” promises to buy the company.

“The doctrine of judicial estoppel generally prevents a

party from prevailing in one phase of a case on an argument and

then relying on a contradictory argument to prevail in another

phase.” Redeford v. U.S. Airways, Inc., 589 F.3d 30, 38 (1st

Cir. 2009) (quotation marks omitted). In the court’s view, the

plaintiffs have not done that here, because their current theory

that SKF made “general” promises to buy Environamics does not

necessarily contradict their prior theory that SKF made promises

to buy Environamics pursuant to the terms of the Option

Agreement. Indeed, the allegations set forth in support of the

proposed promissory estoppel claim describe a variety of conduct

by SKF that was not discussed in the plaintiffs’ affidavits

submitted in support of the original promissory estoppel claim. 

It is not logically impossible that SKF could have engaged in

certain conduct toward the plaintiffs that caused them to believe

it was buying their company under the Option Agreement, and other

conduct toward the plaintiffs that caused them to believe SKF was

buying their company on some other terms (though, it must be

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said, the possibility that different promises could have been

inferred from the same overall course of conduct may suggest that

relying on either promise was not particularly reasonable).

Furthermore, while judicial estoppel (or some similar

doctrine) would likely prevent the plaintiffs from reviving a

theory they affirmatively disclaimed at an earlier stage of the

case, that did not happen here either. It is true that, at the

summary judgment hearing, the plaintiffs agreed with the court

that their promissory estoppel claim was that SKF “orally agreed

to modify the option to make it an irrevocable commitment to

purchase as per the terms of the option” and that plaintiffs

“relied on that oral representation in committing . . . to do

things such as guarantee [the] loans.” But the plaintiffs

stopped short of saying what their promissory estoppel claim was

not, and Judge Barbadoro did not ask them to do so.

At most, the plaintiffs acquiesced in the court’s view that

testimony from another Environamics employee about SKF’s

statements that it “was going to buy the company” would not save

their promissory estoppel claim from summary judgment because

“[t]hat isn’t an agreement that’s sufficiently definite to be

enforceable.” That exchange would likely bar the plaintiffs from

now asserting a promissory estoppel claim based solely on such

statements. The proposed promissory estoppel claim, however,

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relies on additional conduct by SKF, not simply unelaborated

statements that it would buy Environamics.

This is not to suggest that the plaintiff’s proposed

promissory estoppel claim is problem-free, by any means. First,

SKF argued in its summary judgment motion that any alleged oral

promises to buy Environamics were too vague to support a

promissory estoppel claim because they lacked “any essential

terms, including the timing, the price, and the structure of the

proposed deal.” It is reasonable to assume that the court did

not reach this argument in denying the motion, since, at the

hearing, the plaintiffs characterized their promissory estoppel

claim as based on allegedly more specific promises to buy the

company pursuant to the terms of the option agreement. Thus, as

SKF understandably complains, it may have lost the opportunity to

have the court consider a summary judgment argument directed at

the very claim the plaintiffs now seek to add.

Second, and relatedly, the court is less confident than the

plaintiffs that the promises to buy Environamics set forth in the

proposed amended complaint do not suffer from the same vagueness

problem that SKF identified in moving for summary judgment. 

While the proposed amendment alleges a variety of conduct by SKF,

and the plaintiffs’ recent reply memorandum persuasively shows

that a party’s conduct may imply or inform the promise supporting

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a promissory estoppel claim, it is unclear how the alleged

conduct supplies the terms necessary to make the alleged promise

to buy the company sufficiently specific.

Under some circumstances, these concerns could justify

rejecting the proposed amendment on the grounds that it is futile

or unfairly prejudicial to SKF. Here, though, those concerns can

be effectively addressed as the result of two proposals the

plaintiffs make in their reply memorandum. First, the plaintiffs

say that, if their proposed amendment is allowed, they will “not

pursue claims for breach of contract or that specifically arise

in connection with the Option Agreement.” Dropping those claims

should narrow the case considerably, making it less complicated

and costly for SKF to defend--and lessening any prejudice it

would suffer as a result of the late amendment.

Second, and to like effect, the plaintiffs also note that

the court could “revisit the summary judgment motion based on

[the] Amendment,” though they assert that such an exercise would

be “futile, as the record of the case thoroughly supports [their]

claims.” Again, the court is less confident than the plaintiffs

on this point, because it is unclear how the conduct newly

alleged in the proposed amended complaint lends the requisite

specificity to SKF’s alleged promise to “buy the company.” In

fairness to SKF, then, the court will entertain a motion for

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summary judgment directed at the plaintiffs’ new promissory

estoppel theory. Counsel shall confer as soon as possible to

work out a briefing schedule for that motion and shall propose it

to the court by way of joint motion. If counsel cannot agree on

a schedule, they should advise the clerk by telephone, and the

court will order one.

For the foregoing reasons, the plaintiffs’ motion to amend

(document no. 175) is GRANTED.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: August 24, 2010

cc: Donald C. Crandlemire, Esq.

Steven M. Gordon, Esq.

William E. Aivalikles, Esq.

David Richman, Esq.

Gregory A. Moffett, Esq.

Matthew R. Williams, Esq.

Peter G. Callaghan, Esq.

Alexander J. Walker, Esq.

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