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 ELECTRONIC 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 

12th 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 Court 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 District Court for the Western District 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 October 2, 2017 decision and order of the United 

States District Court for the Western District of New York (Larimer, J.) granting summary 

judgment to defendant Los Alamos National Security, 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 district court erred in not following 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 reviewed the law relative to Los Alamos’ 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 consideration on remand, a district 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 affect 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 process, leaving an incomplete record that left 

open questions of material facts. On remand, the parties engaged in discovery before engaging in 

a second round of summary judgment motions. With the benefit of that discovery, the district 

court considered anew the question 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 exists 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 that the undisputed facts definitively establish that (1) Los 
3 

Alamos was the user of the LLE and the HYNTD on the day of the accident; (2) Los Alamos had 

a duty to follow the University’s rules regarding 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 qualified, and violated its duty to Roberts in 

failing to do so. However, the fully developed record 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 makes 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 diagnostics available to outside researchers. 

 We have considered the remainder of Robert’s arguments and find them to be without 

merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its 

own costs. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk