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.
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 well-
settled 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



                                                 2
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




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