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Bar News - September 9, 2005 US District Court Decisions - July 2005
Barnews DISCOVERY 7/21/05 Gill v. Gulfstream Park Racing Assoc., et al. Civil No. 03-cv-155-JD, Opinion No. 2005 DNH 110 After non-parties inadvertently disclosed confidential information, including the identities of confidential informants, to the plaintiff’s counsel, the plaintiff moved to unseal the documents and the non-parties moved for a protective order to keep the documents confidential. The court ruled that the “informant’s privilege” did not apply to information gathered by non-governmental investigators and granted to the motion to unseal the documents. On appeal, the First Circuit agreed that the “informant’s privilege” did not apply but remanded the case for the court to consider whether Federal Rule of Civil Procedure 26(c) would nevertheless protect the confidentiality of the information. After weighing the interests implicated by the confidential information, the court concluded that the non-parties had carried their burden under Rule 26(c) of showing good cause for a protective order to issue. 12 pages. Judge Joseph A. DiClerico, Jr. CIVIL RIGHTS § 1983: PRISONERS 7/22/05 Anthony R. Lim v. Phil Stanley, et. al. Civil No. 04-cv-079-PB, Opinion No. 2005 DNH 111 Inmate brought a § 1983 claim arguing that various prison officials had infringed on his First Amendment right to petition the government by interfering with his access to the prison grievance procedures. In granting the defendants’ motion to dismiss for failure to state a claim, the court ruled that no such interference had occurred because, in fact, it had been the inmate’s misinterpretation of the prison policy directives which led to his alleged harm. The court noted, in addition, that even if the inmate had been restricted in his access to the prison grievance system this, on its own, was insufficient to give rise to a § 1983 claim as there is no Constitutionally protected right to a grievance procedure. 16 pages. Judge Paul Barbadoro. SECURITIES 7/11/05 Ballard et al. v. Tyco International, Ltd. et al. Civil No. 04-CV-1336-PB, Opinion No. 2005 DNH 109 MDL Docket No. 02-MDL-1335-PB Plaintiffs, who acquired shares of Tyco stock in exchange for their stock in AMP, Inc. when the two companies merged in April 1999, sued Tyco, various former officers and directors, and PricewaterhouseCoopers, LLP, Tyco’s independent accountant and auditor. Plaintiffs asserted three claims for relief under the Exchange Act of 1934, three additional claims for relief under the Securities Act of 1933, and claims for state law fraud and negligent misrepresentation. Tyco moved to dismiss the complaint arguing that the Exchange Act and Securities Act claims are time- barred and the common law claims have not been pleaded with the particularity required by Fed. R. Civ. P. 9(b). The court disagreed, determining that the Exchange Act claims were tolled under the class action tolling doctrine articulated by the Supreme Court in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) while a related action, to which plaintiffs were putative class members was pending. The court also concluded that at this stage of the litigation, it must accept plaintiffs assertion that the earliest time at which a reasonable investigation could have uncovered enough information for them to file a legally sufficient complaint was in July 2003. Hence, plaintiffs complaint, filed in January 2004, did not run afoul of the one-year statute of limitations. Finally, the court concluded that plaintiffs have specifically identified the time, place, and content of the allegedly fraudulent statements on which their common law claims are based and have cited to specific evidence to support their assertions that the statements were fraudulent. The court thus denied Tyco’s motion to dismiss. Judge Paul Barbadoro. SOCIAL SECURITY 7/07/05 Alichia M. Ford v. Jo Anne B. Barnhart, Commissioner Social Security Administration Civil No. 04-CV-194-PB, Opinion No. 2005 DNH 105 Plaintiff Alichia Ford appealed a decision by the Commissioner of Social Security denying her disability benefits. Ford was admitted to Dartmouth Hitchcock Memorial Hospital in August 1999 in an altered mental state with diffuse body pain and was ultimately diagnosed with meningoencephalitis. The Administrative Law Judge (“ALJ”) determined that Ford was not entitled to benefits because he found her capacity for sedentary work was substantially intact and had not been compromised by any non-exertional limits. Hence, he determined that Ford retained the residual functional capacity to perform sedentary work. Ford argued that the ALJ failed to properly credit her subjective complaints of pain, ignored the testimony of the vocational expert, failed to consider the opinions of her treating physicians, and improperly relied on a functional capacity evaluation. The court found that the ALJ had in fact considered Ford’s subjective complaints of pain, but found her to be not fully credible because she her testimony contained contradictory statements about her physical abilities. The court also concluded that the ALJ was not required to credit, or even address, testimony for which there was no supporting medical evidence and that he properly evaluated the vocational expert’s testimony with the other evidence in the record. Finally, the court determined that the ALJ was not required to give additional weight to a note in her treating physician’s file that Ford had complained of lower extremity pain and that he properly considered the results of Ford’s functional capacity evaluation in determining that she did not have a psychological disability that would prevent her return to work. Having refuted each of Ford’s arguments, the court affirmed the Commissioner’s decision. 27 pages. Judge Paul Barbadoro. STATUTE OF LIMITATIONS 7/08/05 Daniel E. Ayer v. Bruce Cattell, Warden, NHSP Civil No. 04-CV-434-PB, Opinion No. 2005 DNH 106 Daniel Ayer argued in a habeas corpus petition that the State of New Hampshire violated his constitutional right not to be prosecuted twice for the same offense when it retried him following his successful appeal. The court disagreed, concluding that the state’s court’s decision to permit a retrial was not contrary to Supreme Court precedent because that precedent makes clear that a state ordinarily is free to retry a defendant whose conviction has been vacated on appeal. The court also concluded that the state’s decision to retry Ayer did not involve an unreasonable application of Supreme Court precedent because there was no evidence of the prosecutorial or judicial misconduct required to support a double jeopardy claim. The court thus granted respondent’s motion to dismiss. 3 pages. Judge Paul Barbadoro. EMPLOYMENT (Wrongful Discharge) 7/5/05 Jordan v. Verizon 05-cv-146-SM, Opinion No. 2005 DNH 102 Plaintiff sued his former employer for breach of contract, violation of his state and federal constitutional rights, and intentional infliction of emotional distress. The former employer moved to dismiss. The court granted that motion, concluding that because plaintiff’s employment was governed by a collective bargaining agreement (that provided a grievance procedure), his breach of contract and tort claims were preempted by Section 301 of the Labor Management Relations Act. And, as to plaintiff’s constitutional claims, his complaint failed to allege that his former employer was a state actor or acting under color of state law. 13 pages. Chief Judge Steven J. McAuliffe. REMOVAL (Remand) 7/14/05 Struffolino v. McCoy, et al. 04-cv-137-SM, Opinion No. 2005 DNH 108 Case removed from state court, based upon federal question jurisdiction purportedly arising from an amendment to the complaint, was remanded as improperly removed. The reference to the Americans With Disabilities Act in the amended complaint was made to establish a statutory predicate (the breached duty) for a state negligence per se claim, and not to assert a federal claim under the Act. 10 pages. Chief Judge Steven J. McAuliffe.
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