Published

3/17/05 H.E. Contracting v. Franklin Pierce College,

04-CV-484-PB, Opinion No. 2005 DNH 047

Plaintiff H.E. Contracting sued the defendant Franklin Pierce College asserting claims based on, inter alia, breach of contract and quantum meruit. The plaintiff filed a petition for an ex parte attachment to secure its lien for labor and materials provided to the defendant in connection with the construction of athletic fields and associated facilities. The court granted the plaintiff permission to attach the defendant's real estate in the amount of $600,000.00. After receiving notice of the attachment, the defendant filed an objection. Following a post-attachment hearing, the court found that the provisions of RSA 511-A:3, which require a plaintiff to demonstrate a likelihood of success on the merits, and permit a defendant to avoid an attachment by establishing that its assets are sufficient to satisfy a judgment, do not apply in a proceeding on a labor and materials lien under RSA 447. The court found, however, that the defendant successfully challenged the plaintiff's basic right to recover certain of its alleged damages requiring a reduction in the amount of the lien from $600,000.00 to $146,360.42. 17 pp. Magistrate Judge James R. Muirhead.

3/18/05 Heghmann v. Rye, NH, et al.

04-CV-100-SM, Opinion No. 2005 DNH 045

After the court dismissed all of pro se plaintiff's federal claims and declined to exercise supplemental jurisdiction over his state law claims, defendants moved for an award of costs and attorney's fees. Although the court noted that awards of attorney's fees in favor of prevailing defendants are rare, particularly when the plaintiff is pro se, it concluded that this was one of those exceptional cases in which an award was appropriate. The court noted that, while plaintiff is proceeding pro se, he is also a licensed attorney. The court observed that plaintiff had previously filed virtually identical claims in federal court, which were dismissed for lack of subject matter jurisdiction. Given plaintiff's legal training, and in light of the unambiguous prior rulings of the court concerning its lack of jurisdiction over his claims, the claims advanced in this case were objectively frivolous, unreasonable, and without legal foundation. Fees were awarded to defendants. 13 pages. Chief Judge Steven J. McAuliffe.

3/14/05 Therrien v. Sullivan

04-CV-31-SM, Opinion No. 2005 DNH 040

After plaintiff prevailed in state court on his claim that he was entitled to a new criminal trial on grounds that he received constitutionally deficient assistance of counsel, the State elected not to re-prosecute him. Subsequently, he sued his former attorney for legal malpractice. Defendant moved for summary judgment, asserting that plaintiff's claim was barred by the statute of limitations. Defendant claimed that plaintiff's cause of action accrued when he realized that he had received deficient representation (at the latest, when plaintiff filed his motion for new trial). Plaintiff, on the other hand, asserted that his cause of action accrued only when the court granted his motion for new trial, thereby removing the last obstacle to asserting a viable negligence claim against his former counsel: the ability to allege and prove that he was "harmed" by counsel's deficient representation (i.e., that his conviction was improper). Noting that the New Hampshire Supreme Court has yet to address this issue, and observing that there is a decided lack of uniformity among those courts that have addressed it, the court ordered the parties to show cause why the question should not be certified to the New Hampshire Supreme Court. 21 pages. Chief Judge Steven J. McAuliffe.

3/16/05 Hopkins v. Coplan, et al.

04-CV-30-SM, Opinion No. 2005 DNH 038

Plaintiff, an inmate at the New Hampshire State Prison, sued various correctional officials, claiming they violated a number of his constitutional rights prior to, and in the wake of, a brutal assault upon him by fellow inmates. The court granted defendants' motion for summary judgment, without prejudice, concluding that plaintiff failed to exhaust available prison administrative remedies, as is required by the Prison Litigation Reform Act. The court noted, however, that its order was without prejudice to plaintiff's right to re-file his claims, after he exhausts those administrative remedies. 11 pages. Chief Judge Steven J. McAuliffe.

3/17/05 Blake S. Douglass v. Londonderry School Board, et al.

04-CV-424-SM, Opinion No. 2005 DNH 044

After losing his bid to obtain preliminary injunctive relief, plaintiff waived his right to a jury trial on all claims so triable, and elected to proceed with a bench trial on his amended complaint. Plaintiff asserted that various school and town officials violated his First Amendment rights when the photograph he submitted for use as his senior portrait in the high school yearbook (showing him posing in trapshooting attire, with a shotgun broken-open over his shoulder) was rejected. Following trial, the court found in favor of defendants, concluding that because the student editors of the yearbook, rather than school faculty or administrators, decided not to publish plaintiff's chosen photograph, plaintiff had failed to prove an essential element of his section 1983 claim: state action. Moreover, the court held that even if plaintiff's photograph had been rejected based upon a recently-enacted policy precluding students from posing with any sort of "props," plaintiff failed to prove that the policy amounted to a form of unconstitutional viewpoint discrimination. 21 pages. Chief Judge Steven J. McAuliffe.

3/3/05 DePoutot v. Raffaelly

04-CV-38-SM, Opinion No. 2005 DNH 039

Plaintiff brought this suit against a police officer for the Town of Northfield, asserting that the officer violated his Fourteenth Amendment right to substantive due process by unreasonably conducting a post-arrest investigation. Specifically, plaintiff asserted that, following his arrest for D.W.I., the officer unreasonably determined that plaintiff refused to cooperate in giving a sample of his breath and, therefore, concluded that plaintiff had "refused" to submit to the blood-alcohol test, in violation of the State's implied consent law. Plaintiff asserted that he was unable to give the required breath sample because of a previously undiagnosed asthma condition, rather than any unwillingness to submit to the test. The court granted defendant's motion for summary judgment, holding that, under the circumstances, a reasonable and well-trained police officer would have concluded that plaintiff had refused to submit to the test and, therefore, defendant's conduct was not so egregious or so outrageous that it shocks the contemporary conscience. 29 pages. Chief Judge Steven J. McAuliffe.

3/3/05 Slater v. Verizon

04-CV-303-SM, Opinion No. 2005 DNH 023

Plaintiff, who was discharged by his employer for continuing to draw his full salary while on full-time active military duty, sued for wrongful termination, various statutory violations (state and federal), and defamation. In granting defendant partial summary judgment, the court ruled that two of plaintiff's wrongful termination claims lacked an adequate basis in public policy; the Fair Labor Standards Act does not afford exempt salaried employees a substantive right to be paid their full salaries for every pay period in which they perform any work for their employers; and New Hampshire's common law does not recognize a cause of action for self-defamation/forced republication. 27 pages. Chief Judge Steven J. McAuliffe.

3/2/05 Urological Surgery Professional Association, et al. v.

04-CV-422-JD, Opinion 2005 DNH 037

The plaintiffs claimed that the defendants were liable to them under ERISA and state law for contribution and indemnity for the plaintiffs' liability, if any, to a former employee in a separate pending action against the plaintiffs. The defendants moved to dismiss on the grounds that the plaintiffs' claims were not ripe and that the state law claims were preempted by ERISA. The plaintiffs objected and moved to consolidate this case with the underlying case brought by the former employee. The court concluded that the ERISA contribution and indemnification claims were not ripe and dismissed those claims without prejudice. Because the dismissed ERISA claims were the basis of subject matter jurisdiction, the court declined to exercise supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367(c)(3). The case was dismissed without prejudice, and the plaintiff's motion to consolidated was denied as moot. 5 pages. Judge Joseph A. DiClerico, Jr.

INSURANCE * Published

3/30/05 Enterasys Networks v. Gulf Insurance, et al.

04-CV-27-SM, Opinion No. 2005 DNH 050

Plaintiff, Enterasys, settled a securities class action by agreeing to pay a combination of cash and shares of its own stock. Enterasys then sued its directors and officers liability insurance carriers, seeking a declaratory judgment and asserting claims for breach of contract, based upon its theory that distributing or issuing stock to settle the underlying class action constituted an insurable loss. The court disagreed, ruling that neither the distribution of treasury stock nor the issuance of new stock, up to the limit allowed in the certificate of incorporation, qualifies as a "loss," because neither treasury stock nor authorized but unissued stock is properly understood to be a corporate asset. The issuance of either new or treasury shares may dilute the equity ownership interest represented by outstanding shares, but does not harm the corporate entity - so is not a "loss." 22 pages. Chief Judge Steven J. McAuliffe.

3/2/05 Eastern Mountain Sports, Inc. v. Osprey Packs, Inc.

04-CV-86-SM, Opinion No. 2005 DNH 036

Defendant in this patent action moved for summary judgment, asserting that its accused "combination" backpacks - units that can be configured as either small "hydration" packs or as larger packs capable of carrying both gear and a hydration pack - do not infringe plaintiff's patent, either literally or under the doctrine of equivalents. The court agreed and granted defendant's motion for summary judgment. 26 pages. Chief Judge Steven J. McAuliffe.

3/14/05 SPGGC, Inc. v. NH Attorney General

04-CV-420-SM, Opinion No. 2005 DNH 042

After receiving notice from the Attorney General that the conditions under which it was issuing stored value gift cards violated the New Hampshire Consumer Protection Act ("CPA"), plaintiff sued the State, seeking a judicial declaration that (1) National Bank Act; and (2) to the extent the State is attempting to apply provisions of the CPA to its gift cards, the CPA interferes with interstate commerce, in violation of the United States Constitution. The State moved to dismiss, asserting that the court lacked subject matter jurisdiction and/or that plaintiff's claims were barred by the Eleventh Amendment. The court disagreed, and denied defendant's motion to dismiss. 7 pages. Chief Judge Steven J. McAuliffe.

3/21/05 Adam v. Hawaii Property, et al.

04-CV-342-SM, Opinion No. 2005 DNH 048

Pro se plaintiff brought suit against his former insurance company and a related entity, seeking damages for alleged violations of his civil rights. Defendants moved to dismiss, asserting that the court lacked personal jurisdiction over them. The court agreed, concluding that it could not, consistent with due process and traditional notions of fair play and substantial justice, exercise personal jurisdiction over defendants, which were residents of Hawaii and had virtually no contacts with the State of New Hampshire (other than the fact that their former insured recently moved here). Nevertheless, rather than dismiss the action for lack of jurisdiction, the court transferred it to the District Court for the District of Hawaii. See 28 U.S.C. § 1631. 14 pages. Chief Judge Steven J. McAuliffe.

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