17-3175 Roberts v. Los Alamos National Security, LLC

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 12 th day of April, two thousand nineteen.

Present: RALPH K. WINTER, ROSEMARY S. POOLER, Circuit Judges

. RONNIE ABRAMS, 1 District Judge

.

_____________________________________________________
SAMUEL M. ROBERTS,

Plaintiff-Appellant

,

v. 17-3175

LOS ALAMOS NATIONAL SECURITY, LLC,

Defendant - Cross-Claimant - Third- Party Plaintiff - Cross-Defendant – Counter-Defendant - Appellee,

UNIVERSITY OF ROCHESTER,

Third-Party Defendant - Counter-Claimant – Appellee

. 2

_____________________________________________________

1 Judge Ronnie Abrams, United States District C ourt for the Southern District of New York, sitting by designation.

2 The Clerk of the Court is directed to amend the caption as above.2 Appearing for Appellant: Louis J. Micca, Pittsford, N.Y.

Appearing for Appellee Los Alamo National Security, LLC: Greta K. Kolcon, Woods Oviatt Gilman LLP (Beryl Nusbaum, on the brief ), Rochester, N.Y.

Appearing for Appellee University of Rochester: Eric J. Ward, Ward Greenberg Heller & Reidy LLP (William R. Leinen, on the brief ), Rochester, N.Y.

Appeal from the United States Di strict Court for the Western Di strict of New York (Larimer, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

. Samuel M. Roberts appeals from the Oct ober 2, 2017 decision and order of the United States District Court for the West ern District of New York (Larimer , J .) granting summary judgment to defendant Los Alamos National Se curity, LLC (“Los Alamos”) and third-party defendant University of Rochester (“University”) . We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Roberts first argues that the di strict court erred in not follo wing the mandate of this Court in Roberts v. University of Rocheter , 573 Fed. App’x 29 (2d Cir. 2014) . He argues that there, “the Second Circuit already revi ewed the law relative to Los Al amos’ duty and has held that Plaintiff has established his prima facia case.” “We determine de novo the meaning of a previous mandate of this Court.” Brown v. City of New York , 862 F.3d 182, 184 (2d Cir. 2017). It is wellsettled that a district court cannot stray from the mandate issued by an appellate court, such that “[w]here a mandate limits the issues open for cons ideration on remand, a dist rict court ordinarily cannot consider additional issues.” Puricelli v. Argentina , 797 F.3d 213, 218 (2d Cir. 2015). Here, this Court’s earlier decision explicitly declined to find that Los Alamos owed Roberts a duty as a matter of law. Roberts , 573 Fed. App’x at 34 (“We wish to make clear that we do not hold that Los Alamos owed Roberts a duty of care ; rather, we conclude that there are genuine factual disputes that a ffect the determination of whether Los Alamos owed Roberts a duty and, therefore, Los Alamos is not entitled to summary judgment.”). The first round of summary judgment motions came early in the discovery pro cess, leaving an incomple te record that left open questions of material facts. On remand, the parties engage d in discovery before engaging in a second round of summary judgment motions. With the benefit of that di scovery, the district court considered anew the que stion of whether Los Alamos owed Roberts a duty. This is consistent with the mandate, as well as the rule that determining whether a duty exists is a job for the court in the first instance. See Palka v. Servicemaster Mgmt. Servs. Corp. , 83 N.Y.2d 579, 585 (1994) (question of whether a duty exis ts is a legal question for the court).

Roberts next argues that the district court erred in finding that Los Alamos did not owe Roberts a duty. Roberts argues th at the undisputed facts definiti vely establish that (1) Los3 Alamos was the user of the LLE and the HYNTD on the day of the acciden t; (2) Los Alamos had a duty to follow the University’s rules regardin g the LLE and equipment, (3) Lost Alamos had a duty to list the HYNTD as a non- qualified piece of equipment on LFORM, and (4) Los Alamos was barred from using the HYNTD until it was qua lified, and violated it s duty to Roberts in failing to do so. However, the fully developed reco rd establishes that the University represented to Los Alamos that the HYNTD was available as a qualified diagnostic. There was no basis for Los Alamos to believe otherwise. The record ma kes clear that neither Los Alamos nor Herrmann had any sort of access to the HYTND, or to its installation, that would allow it to question the inclusion of the HYTND on the list of qualified di agnostics available to outside researchers.

We have considered the remainder of Robe rt’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFI RMED. Each side to bear its
own costs.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk