Bar News - September 23, 2005
US District Court Decisions - August 2005
CIVIL RIGHTS § 1983: Prisoner
8/29/05 Duquette v. NH DOC
Civil No. 04-cv-281-SM, Opinion No. 2005 DNH 121
In this civil rights action, brought to protest the conditioning of a prison inmate’s parole on participation in an allegedly religion-based sexual offender program, summary judgment was granted to the defendants, on grounds that the dispute is not ripe, due to the fact that the plaintiff will not be eligible for release from the New Hampshire State Prison for approximately twenty years. 15 pages. Chief Judge Steven J. McAuliffe.
COLLATERAL ESTOPPEL
8/4/05 Estate of Margaret P. Lunt v. Gregory A. Gaylor
Civil No. 04-CV-398-PB, Opinion No. 2005 DNH 114
Plaintiff moved for partial summary judgment on several counts in its complaint, arguing that defendant is collaterally estopped from challenging these counts because of prior criminal convictions that arise from the same facts. Defendants and decedent Lunt formed a partnership to acquire, develop, and sell real estate. After defendant, the general partner, was discovered to have made a number of transfers from the partnership’s accounts for his personal benefit, he was indicted of felony and misdemeanor counts of theft. A jury convicted defendant of 52 counts of Class A theft my misapplication, nine counts of Class B theft by misapplication, and one count of Class A theft for misuse of the partnership’s credit card. He was sentenced to 14-and-a-half to 29 years in prison. After the New Hampshire Supreme Court refused to consider the appeal of his conviction, defendant filed a write of habeas corpus in state court. This petition was denied and defendant filed a similar habeas petition in federal court. On plaintiff’s motion for summary judgment, the court noted that a party against whom collateral estoppel is sought must have had a “full and fair opportunity to litigate the issue in the prior case and a final judgment must have been rendered. The court then determined that defendant had been given a full and fair opportunity to challenge his criminal convictions and to litigate the issues to a final judgment. The court then found that defendant’s criminal convictions do not encompass legal and factual determinations that collaterally estop him from challenging plaintiff’s claims for breach of fiduciary duty and civil conversion. However, the court concluded that defendant is not estopped from challenging plaintiff’s negligence claim. Plaintiff’s motion was therefore granted in part, denied in part. 16 pages. Judge Paul Barbador
COPYRIGHT
8/9/05 Maddog Software, Inc. v. Michael A. Sklader
Civil No. 04-cv-483-JD, Opinion No. 2005 DNH 117
The plaintiff software company moved for a preliminary injunction preventing the defendant, a former employee, from distributing another computer program on the grounds that it constituted infringement of the plaintiff’s copyright in a program the defendant had developed during his time with the company and that it violated the terms of a non-competition agreement between the parties. The court found that the defendant had created the copyrighted software largely by borrowing from forms from a sample database and from code publicly available within the programming community. The court also found that the defendant had designed the forms themselves to accommodate standard industry practices and to embody mathematical formulae that could not be expressed any other way. In light of these findings, the court concluded that the plaintiff had failed to show that the defendant’s competing program contained any elements of the copyrighted program which were original to it and could therefore be the subject of copyright protection. The court also concluded that the plaintiff could not get injunctive relief enforcing the non-competition agreement, because its term had already expired, but that in any event the agreement was impermissibly broad and that the plaintiff had failed to show the good faith necessary to reform it under New Hampshire law. Because the plaintiff had failed to show a likelihood of success on the merits of its claims, the motion for a preliminary injunction was denied. 34 pages. Judge Joseph A. DiClerico, Jr.
EMPLOYMENT (TITLE VII)
7/8/05 Jai Taal v. Hannaford Brothers, Inc.
Civil No. 05-CV-82-PB, Opinion No. 2005 DNH 107
The sole issue on defendant’s motion for summary judgment was whether a Title VII plaintiff who has failed to notify the Equal Employment Opportunity Commission (“EEOC”) of a change in her address is excused from having to comply with the 90-day limitation period that governs such claim because the EEOC mailed her right-to-sue letter to the address listed in her complaint, rather than her current address. The court noted that all appellate courts that have confronted this issue have held that a plaintiff is not entitled to relief from the 90-day limitations period based on the EEOC’s failure to send the right-to-sue letter to the correct address if, as here, the plaintiff caused the errant mailing by failing to comply with the EEOC’s change of address procedure. The court then concluded that this widely accepted rule is sound and should be applied in this case. Thus, because plaintiff failed to properly notify the EEOC of her address change, she is not entitled to relief from compliance with Title VII’s 90-day statute of limitations period. 4 pages. Judge Paul Barbadoro.
JURISDICTION (Subject Matter)
8/30/05
DelleChiaie v. United States
Civil No. 03-cv-222-SM, Opinion No. 2005 DNH 123
After the parties negotiated a settlement of all of plaintiffs’ claims, they filed a stipulation for dismissal, with prejudice, of all plaintiffs’ claims. See Fed. R. Civ. P. 41(a)(1)(ii). Subsequently, plaintiffs filed a motion to enforce what they believed were the terms of the parties’ settlement agreement. The court declined to rule on that motion, concluding that because it did not expressly retain jurisdiction to enforce the terms of the settlement agreement, it lacked federal subject matter jurisdiction over the parties’ current dispute. 9 pages. Chief Judge Steven J. McAuliff
PATENT LAW
8/5/05 Howard J. Dananberg, D.P.M. v. Payless ShoeSource, Inc.
Civil No. 00-CV-34-PB, Opinion No. 2005 DNH 116
Following a hearing conducted pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), the court construed two disputed terms in the claims of the patent that was the subject of Dananberg’s patent infringement action. The court construed the first term, “extending from” or “extending downward,” to be a structure of reduced support at the upper surface of the shoe sole. The court agreed with Payless that the claims are limited to designs that either leave a void in the shoe sole at the upper surface or that have material at the upper surface that is of reduced support relative to the remainder of the sole. With respect to the second disputed term “facilitate” or “promote,” the court refused to treat this limitation as a means-plus-function element in accordance with 35 U.S.C. § 112, ¶ 6. The court first declined to presume that § 112, ¶ 6 applies to the limitations in question. In addition, the court concluded that claims at issue completely disclose the structures by which the functions, plantar flexion and eversion, are promoted. 18 pages. Judge Paul Barbadoro.
SECURITIES
8/4/05 Ballard et al. v. Tyco International, Ltd. et al.
Civil No. 04-CV-1336-PB
MDL Docket No. 02-1335-PB
Plaintiffs sued Tyco as well as various former officers and directors of the company, including Michael A. Ashcroft. Plaintiffs assert claims for relief under the Securities and Exchange Act of 1934, the Securities Act of 1933, and also bring claims for common law fraud and negligent misrepresentation. Ashcroft, a citizen of the United Kingdom, moved to dismiss the claims against him, arguing that he was not properly served with the summons and complaint. In response, plaintiffs urged that service by regular mail delivered to Ashcroft’s office in London was valid. In determining whether service by regular mail was valid under these circumstances, the court analyzed the requirements of Fed. R. Civ. P. 4(f) and Article 10(a) of the Hague Convention. After noting a split of authority among the Courts of Appeal, the court adopted the reasoning of the Second and Ninth Circuits in concluding that Article 10(a) does not prohibit service of process by mail. The court added, however, that affirmative authorization must be derived from the law of forum state, and in this case Fed. R. Civ. P. 4(f). After carefully examining Rule 4(f), the court held that service of process by regular mail is invalid. Rather than dismiss the claims, the court ordered plaintiffs to re-serve Ashcroft within 90 days. 15 pages. Judge Paul Barbadoro.
|
