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Bar News - March 18, 2005 US District Court Decisions: February 2005 Published ABSTENTION 2/9/05 After plaintiff failed to pay local real estate taxes for several years, the Town of Winchester took title to his property by tax deed. Dissatisfied with the outcome of several administrative appeals and at least three suits in state court, plaintiff then filed this action, claiming to have been the victim of an unconstitutional taking without due process. Specifically, plaintiff claimed that the Town had unlawfully taken his property by tax deed after he failed to pay a tax which the New Hampshire Supreme Court subsequently declared unconstitutional (the "excavation activity" tax). Although the court noted that plaintiff’s claims almost certainly lacked merit (since the Town did not assess the excavation activity tax against his property after it was declared unconstitutional and because he failed to seek an abatement for the years during which it was assessed against his property), it concluded that those claims were barred by both the Rooker-Feldman doctrine and principles of res judicata. Motion to dismiss granted. 13 pages. Chief Judge Steven J. McAuliffe. BREACH OF CONTRACT, CONSUMER PROTECTION ACT 2/11/05 The plaintiff, Steven Aubertin, filed suit against defendants, contending that his prepayment of a note was concurrent with the sale of the property securing the note, as required to avoid a penalty. Defendants moved to dismiss Count II, breach of contract, and Count III, Consumer Protection Act ("Act"), N.H. Rev. Stat. Ann. § 358-A:3, of Aubertin’s complaint for failure to state a claim. The court declined to dismiss the breach of contract claim, finding that Aubertin paid the prepayment penalty under protest because defendants would not otherwise supply the discharge needed to complete the sale of the property. These allegations, the court found, are sufficient to support a claim that Auberton was acting under duress. With respect to the consumer protection claim, the court dismissed the claim as to defendant Fairbanks Capital because the transactions on which Aubertin’s claim against it are based are exempt from coverage under the Act. Finally, the court dismissed the consumer protection claim against defendant U.S. Bank, finding it subject to the jurisdiction of a federal banking regulator and therefore exempt from the Act. 6 pages. Judge Paul J. Barbadoro. BREACH OF SALES AGREEMENT, DEFAMATION, AGENCY 2/18/05 Plaintiffs moved for summary judgment with respect to their claim for the return of their security deposit, arguing that defendants failed to abide by a condition in the sales agreement. The court denied plaintiffs’ motion, finding that factual disputes remained in genuine dispute as to: (1) whether defendants fulfilled their obligations under the condition by notifying plaintiffs that the property’s corner pins were visible and making reasonable efforts to facilitate a viewing; (2) whether plaintiffs waived the condition; and (3) whether defendants detrimentally relied on plaintiffs’ waiver. As to defendants’ defamation counterclaim, the court ruled that plaintiffs were not entitled to summary judgment. The court found that Section 563 of the Restatement (Second) of Torts does not support plaintiffs’ contention that a statement cannot be defamatory unless the recipient of the statement believes it to be true. Finally, the court granted plaintiffs’ motion for summary judgment as to defendants’ third-party beneficiary counterclaim, finding that defendant pointed to no evidence to support this claim other than evidence that he was due a commission from the sellers if plaintiffs purchased the property. This evidence, the court explained, is insufficient to support the claim. 5 pages. Judge Paul J. Barbadoro. CIVIL RIGHTS § 1983 2/14/05 High school student moved for a preliminary injunction compelling school officials to publish, in the senior section of the school’s yearbook, a photograph of him posing with a shotgun. At the subsequent hearing on plaintiff’s motion, the evidence revealed that it was the yearbook’s student editors who decided not to publish plaintiff’s chosen photograph in the senior section (instead, the editors planned to publish it in the "community sports" section); while school administrators endorsed that decision, they did not make it in the first instance, nor did they coerce the students who did make it. Accordingly, relying upon the First Circuit en banc opinion in Yeo v. Town of Lexington, 131 F.3d 241 (1st Cir. 1997), the court held that plaintiff failed to demonstrate that the decision-makers in this case - the student editors of the yearbook - were state actors. And, absent a showing of state action, plaintiff failed to demonstrate that he was likely to prevail on the merits of his constitutional claims under 42 U.S.C. § 1983. Motion for preliminary injunction denied. 29 pages. Chief Judge Steven J. McAuliffe. CIVIL RIGHTS § 1983: PRISONERS 2/23/05 Anthony LaFauci, pro se, sought relief under 42 U.S.C. § 1983 claiming that various employees of the New Hampshire Department of Corrections ("DOC") violated his First, Eighth, and Fourteenth Amendment rights. LaFauci claimed that DOC officials engaged in a concerted effort to harass, abuse, and assault him and also retaliated against him for exercising his constitutionally protected rights. Defendants moved for summary judgment on all claims. The court granted defendants’ motion as to the procedural retaliation claims, finding that they had offered legitimate, non-retaliatory explanations for their decisions not to allow LaFauci to call witnesses to disciplinary hearings or to have minor disciplinary hearings videotaped or recorded and that LaFauci failed to rebut these explanations. The court also granted defendants’ motion for summary judgment as to LaFauci’s substantive retaliation claims, finding that he failed to allege facts sufficient to establish defendants’ retaliatory motive. Next, the court ruled that defendants were entitled to summary judgment on LaFauci’s Eighth Amendment claim that defendants failed to protect him from other prisoners. Again, the court found that LaFauci failed to produce sufficient evidence that defendants acted with a culpable state of mind. The court then ruled that defendants were entitled to summary judgment on LaFauci’s first claim that defendants violated the Eighth Amendment’s prohibition on cruel and unusual punishment, finding that LaFauci failed to present evidence sufficient to warrant the conclusion that DOC officials applied force maliciously or sadistically. As to LaFauci’s second claim that defendants violated the Eighth Amendment’s prohibition on cruel and unusual punishment, the court ruled that LaFauci properly exhausted the available administrative remedies as is required by the Prison Litigation Reform Act. The court also found that there exists a genuine dispute as to whether LaFauci caused a disturbance in the prison library, the threat reasonably perceived by the corrections officers, the need for six corrections officers to apply force, and any efforts to temper the severity of the forceful response. The court thus denied defendants’ motion for summary judgment as to this claim. 43 pages. Judge Paul J. Barbadoro. CONSTITUTIONAL LAW 2/16/05 Because the Town of Gilford’s policy regarding the licensing of exotic dancing placed too much discretion in the hands of the Board of Selectmen, it was held to be an impermissible prior restraint on constitutionally protected speech. 13 pages. Chief Judge Steven J. McAuliffe. CRIMINAL CASES - SENTENCING 2/11/05 The court concluded that the rule announced in United States v. Booker, 125 S. Ct. 738 (2005), is a new rule that is procedural rather than substantive and does not qualify as a "watershed rule," implicating "the fundamental fairness and accuracy of the criminal proceedings." Accordingly, it does not apply to final convictions. Moreover, the court found that defense counsel’s failure to anticipate Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker does not qualify as ineffective assistance of counsel. Frost’s motion to vacate was therefore denied. 2 pages. Judge Paul J. Barbadoro. EMPLOYMENT DISCRIMINATION - TITLE VII, ADA 2/23/05 George Gamas filed a three-count complaint against Anheuser-Busch, Inc. alleging violations of his rights under 42 U.S.C. § 1981, Title VII of the Civil Rights Act, and the Americans with Disabilities Act. Anheuser-Busch moved for summary judgment. First, on the § 1981 claim, it argued that plaintiff claimed discrimination based on national origin. It correctly noted, that one’s national origin is not a protected class under § 1981. One’s ancestry is a protected basis, however. Denying defendant’s motion for summary judgment, the court thus automatically amended plaintiff’s complaint to include a claim for discrimination based on his Greek ancestry. Defendant next argued that plaintiff failed to file his Title VII and ADA claims with the EEOC within 300 days of the alleged unlawful employment practice as required. Defendant would have the court include the Labor day holiday. Doing so would mean that the filing would have occurred 302 days later. Adopting the standards set forth in Federal Rule of Civil Procedure 6(a), the court rejected defendant’s argument, and excluded Labor day weekend from the statute of limitations calculus. Concluding that the statute had thus not, the court denied defendant’s motion for summary judgment. 7 pages. Judge Paul J. Barbadoro. ERISA 2/24/05 The plaintiff brought suit under ERISA, 29 U.S.C. § 1132(a)(1)(B), seeking to recover disability benefits allegedly due her under the terms of the Liberty Mutual Life Insurance Company’s Long-Term Disability Plan. Keough argued that defendant Liberty Life’s decision to terminate her disability benefits was arbitrary and capricious because there was no material change in her health status either before or after the termination. Keough further argued that Liberty Life did not have sufficient evidence to make a reasonable eligibility determination. Liberty Life moved for summary judgment. The court granted the motion for summary judgment, finding that the medical evidence in the record was capable of supporting competing inferences as to both the improvements in Keough’s health and her ability to return to work. The court next found that Liberty Life had sufficient information to make a benefits determination and that it was reasonable for Liberty Life to accept the conclusions of an independent medical consultant rather than the inconsistent opinions of Keough’s treating physicians where, as here, the Plan granted Liberty Life discretionary authority. 45 pages. Judge Paul J. Barbadoro. FEDERAL STATUTES (ADA) 2/16/05 Plaintiff, who suffers from visual impairments, sued Belknap County, asserting that his rights under the Americans with Disabilities Act were violated because the Belknap County Courthouse, while meeting ADA requirements, was not "readily accessible" to him. The County prevailed on its motion for summary judgment on grounds that by making the Courthouse ADA accessible, it fulfilled the full scope of any duty it owed plaintiff. 13 pages. Chief Judge Steven J. McAuliffe. FEDERAL STATUTES (FDCPA) 2/9/05 Plaintiff’s Fair Debt Collection Practices Act claim was dismissed because the defendant law firm’s act of foreclosing on plaintiff’s mortgage did not constitute debt collection for purposes of the FDCPA. 13 pages. Chief Judge Steven J. McAuliffe. INTELLECTUAL PROPERTY: COPYRIGHT 2/9/05 Defendant, a designer and builder of timber frames for houses and other structures, was granted summary judgment on plaintiff’s copyright infringement claim because the timber frame defendant built was not, as a matter of law, a copy of plaintiff’s architectural plans (even though it was capable of supporting a house identical to that depicted in plaintiff’s copyrighted architectural plans) and because defendant’s frame drawings were not substantially similar to plaintiff’s architectural drawings, which included floor plans and elevations, but no frame drawings. 33 pages. Chief Judge Steven J. McAuliffe. PATENT LAW 2/11/05 Plaintiff and defendant entered cross-motions for summary judgment on the issue of whether defendant infringed plaintiff’s patent. Plaintiff’s patent described a portable bed handle attached to a flat plate made slidable between a bed’s mattress and frame. Defendant also produced a bed handle. However, its handle contained a tubular, rather than planar, frame. Plaintiff claimed that this invention infringed its patent under the doctrine of equivalents. A patent is infringed under this doctrine if the infringing device performs the same function in a similar manner producing a similar result. A patentee may not invoke this doctrine, however, to claim prior art. In this case, the prior art included a bed handle with a tubular frame. Plaintiff’s claim therefore failed as a matter of law. As a result, its motion for summary judgment was denied while defendant’s motion was granted. 9 pages. Judge Paul J. Barbadoro. ROOKER-FELDMAN 2/15/05 The pro se plaintiff brought a civil rights action against a police officer arising from their interaction on election day when the plaintiff protested against candidate John F. Kerry by dressing as a terrorist and carrying a Kerry sign. The plaintiff filed the same action in state court, which was dismissed for failure to state a cause of action. The police officer moved to dismiss the federal suit on the grounds that it was barred by the Rooker-Feldman doctrine. The court agreed that the doctrine barred the plaintiff’s second suit for the same cause of action, noting that the First Circuit had recently appeared to conflate the Rooker-Feldman and preclusion doctrines into a single analysis. 6 pages, Judge Joseph A. DiClerico, Jr. SOCIAL SECURITY APPEALS 2/23/05 Plaintiff, George Nickerson, appealed a decision by the Commissioner of Social Security denying him disability benefits. Plaintiff first claimed that Administrative Law Judge Kliegebield erred in refusing to consider the findings and opinions of his treating physicians in determining whether plaintiff was disabled. The ALJ countered that res judicata prevented him from doing so. The court disagreed. This evidence, the court noted, was part of the record in one of plaintiff’s earlier applications for benefits. This application involved an entirely different claim based on a determination of disability for a different period of time. Res judicata applies only to bar the re-litigation, and reconsideration of evidence with respect to identical claims. It thus cannot be invoked to prevent the ALJ from considering evidence from prior claims that bear on the resolution of new claims. Such was the case here. Plaintiff’s application was therefore remanded to the ALJ with instructions to consider the excluded findings and opinions of the treating physicians. Plaintiff next claimed that the ALJ erred in failing to credit one treating physician’s assessment of his mental status. This claim was squarely contradicted by the record. Plaintiff’s challenge on this score was therefore denied. Finally, plaintiff claimed that the ALJ erred in failing to instruct the vocational expert to limit his inquiry to "low stress jobs." The court concluded that because the term "low stress" is entirely subjective, it could not aid the vocational expert in narrowing the scope of his search. The court therefore, again, rejected plaintiff’s claim. 16 pages. Judge Barbadoro. SUBJECT-MATTER JURISDICTION 2/17/05 The defendants moved to dismiss the plaintiffs’ suit seeking declaratory and injunctive relief on Fourth Amendment grounds against Revised Statutes Annotated § 74:17, which authorizes municipal officials to obtain an administrative warrant to enter property to appraise it for property tax purposes and forfeits the abatement rights of any taxpayer who refuses to consent to a warrantless entry. The defendants sought dismissal under the Tax Injunction Act, which divests federal district courts of jurisdiction over actions which would restrain the assessment of state or local taxes where state courts make an appropriate remedy available. The plaintiffs objected, arguing that the Supreme Court’s recent decision interpreting the Act, Hibbs v. Winn, 124 S. Ct. 2276 (2004), limited its jurisdictional bar to actions where the plaintiff seeks to avoid paying taxes, and that the plaintiffs sought relief only against the alleged Fourth Amendment violations, not local taxation itself, so their action could proceed. The court disagreed, reading Hibbs to apply the Act to suits that would reduce the flow of state or local tax revenue. Because striking down RSA 74:17 would deprive local officials of the ability to assess homes at their actual value, including improvements which could not be detected without entering the premises, the court ruled that the relief sought in the action would reduce local tax revenues and that the TIA therefore prevented the plaintiffs from bringing their suit in federal court. 25 pages. Judge Joseph A. DiClerico, Jr. |
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