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Crown Castle USA Inc. v. Fred A Nudd Corp.

August 13, 2008

CROWN CASTLE USA INC., CROWN CASTLE GT COMPANY LLC, CROWN CASTLE ATLANTIC LLC, CROWN ATLANTIC COMPANY LLC AND CROWN COMMUNICATION INC., PLAINTIFFS,
v.
FRED A. NUDD CORPORATION, UNDERHILL CONSULTING ENGINEERS, P.C., GEORGE R. UNDERHILL, STEVEN F. CARINI AND DEREK R. HARTZELL, DEFENDANTS.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiffs, Crown Castle USA Inc., Crown Castle GT Company LLC, Crown Castle Atlantic LLC, Crown Atlantic Company LLC and Crown Communication Inc., (collectively "Crown") move pursuant to Rule 60(b) of the Federal Rules of Civil Procedure for reconsideration of this Court's Decision and Order dated January 16, 2008, (the "January 16 Order") granting in part, and denying in part, defendant Fred A. Nudd Corporation's ("Nudd") motion for partial summary judgment. In addition, Crown moves pursuant to Rule 59(e) of the Federal Rules of Civil Procedure for an order to alter or amend the judgment on Crown's equitable estoppel and fraud and misrepresentation claims which were dismissed by the January 16 Order.

Crown argues that based on the evidence revealed during discovery, Crown seeks reconsideration of the portions of the January 16 Order that hold: 1) that Crown cannot invoke the doctrine of equitable estoppel to toll the statute of limitations and 2) that Crown's fraud and misrepresentation claims are dismissed as it relates to the thirty-nine monopoles at issue in this litigation. Alternatively, Crown seeks leave to amend its Complaint to plead its fraud and misrepresentation claims with greater specificity and to plead facts to cure the deficiencies noted in the January 16 Order.*fn1

Nudd contends that Crown fails to raise new evidence as required for a reconsideration motion. Nudd further argues that Crown simply adds affidavits of those witnesses Crown had access to well before the January 16 Order was entered and that Crown even admits that its alleged new evidence was disclosed at depositions that occurred in December 2007. Moreover, Nudd argues that Crown cannot be granted leave to amend the complaint since the January 16 Order has not been set aside or vacated pursuant to Rule 59(e) or 60(b).

For the reasons set forth below, Crown's motion to alter or amend under Rule 59(e) is granted. Summary Judgment as it relates to the equitable estoppel and fraud and misrepresentation claims are denied since there are material issues of fact in dispute.

Accordingly, the Court's January 16 Order is partially vacated and superseded in part by the following decision.

BACKGROUND

The background of this case is set forth in the Court's January 16 Order. See Crown Castle USA Inc. et al. v. Fred A. Nudd Corp., et al., 2008 WL 163685 (W.D.N.Y.2008). Familiarity with that decision is assumed. Facts and prior proceedings relevant to the instant motion are set forth below.

I. Discovery

Nudd filed a motion for partial summary judgment on March 1, 2007. When Crown filed its opposition papers to Nudd's motion on April 9, 2007, no depositions had been taken and Nudd had not provided certain documents. On May 3, 2007, Judge Payson granted Crown's second motion to compel*fn2 and ordered Nudd to produce exhibits to deposition transcripts and pleadings from the SBA litigation. Crown received some of the documents related to the SBA litigation in June 2007 from Nudd. The documents indicated that Nudd admitted to other customers, not Crown, that Nudd's monopole design program was defective, that Nudd monopoles would not meet the TIA/EIA-222 Structural Standards for Steel Antenna Towers and Antenna Supporting Structures ("TIA/EIA Standard") specified in Nudd's design documents. In addition the Nudd monopoles may need to be modified to support their design loads. By order dated September 27, 2007, Judge Payson directed the parties to submit a joint deposition schedule by October 26, 2007, and set the close of discovery on February 15, 2008.

Crown contends that by November 2007 it was finally able to obtain from SBA's counsel a complete set of the documents introduced as deposition exhibits in the SBA litigation. The exhibits contain evidence that Nudd knew of the design defect and communicated with certain customers, not Crown, regarding the defect. On December 18 and 19, 2007, Tom Nudd, President and Lowell Nudd, Vice President of Nudd testified on behalf of the company pursuant to a deposition notice issued under Fed.R.Civ.P. 30(b)(6). Moreover, Andrew Bazinet of Crown was deposed in December 2007.

II. Affidavits

A. Affidavit of Clark Cogan

Clark Cogan ("Cogan") is a former Nudd Sales Manager who is now the President of Tower Solutions LLC. Cogan Aff., ¶ 1. According to Cogan, Nudd engineers, Patrick Botimer ("Botimer")and Derrick Hartzell reviewed the Nudd design program in 2001 and concluded that, as a result of a design flaw in the software developed by Nudd, the designs and monopoles were defective. Id., ¶ 3.*fn3 The engineers also informed Cogan in 2001 that the design flaw meant that the monopoles would hold 30-40% less capacity than the original design capacity for the monopoles. Id. In this regard, Tom Nudd authorized and directed Cogan to communicate only with Nudd customers that had discovered the design flaw on their own. Id., ¶ 4. Tom Nudd instructed Cogan not to communicate to customers that had not discovered the monopole deficiencies on their own. Id. Cogan states that while it was originally the intent of Nudd to repair some of the defective monopoles, the scope of the problem and the financial resources necessary to correct the problem became overwhelming. Id., ¶ 5. According to Cogan, when he was overly forthright and honest in communicating with customers regarding Nudd's design flaws, he was relieved of his responsibility. Id. Thus, Nudd decided not to inform its customers that its monopoles were defective and made the decision not to provide customers with information related to the defect. Id., ¶ 6.

Cogan states that Crown relied on Nudd's expertise in the area of analysis of communication monopoles. Id., ΒΆ 7. According to Cogan, Crown utilized Nudd for engineering services at least until he left in 2002. Id. During this time, Crown relied on Nudd's knowledge of the monopoles designed by Nudd and ...


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