New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

Providing innovative litigation support services in business valuation, financial analyses and forensic accounting to attorneys and clients alike throughout the New England.

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Bar News - November 13, 2009


US District Court Decision Listing - October 2009

* Published

CIVIL RIGHTS: § 1983 NON-PRISONER
10/14/09
Artus, et al. v. Town of Atkinson, et al.
Case No. 09-cv-87-PB, Opinion No. 2009 DNH 154

Three Atkinson residents (Leon Artus, Gary Brownfield, and Steven Lewis) sued the Town of Atkinson, the Chief of the Atkinson Police Department (Philip Consentino), the moderator of Atkinson’s town meetings (Francis Polito), a former selectman (Jack Sapia, Jr.), and three others involved in Atkinson local government, alleging that defendants had violated their First Amendment rights. Plaintiffs also asserted a state law claim. Defendants filed motions to dismiss the First Amendment claims, which the court granted. Plaintiffs had based their allegations upon three incidents: (1) one in which Consentino allegedly called individuals who had signed a petition Artus and Brownfield were circulating and persuaded them to remove their names from it; (2) one at an Atkinson town meeting in which Polito ordered Brownfield to stop taking photographs, and Polito and Sapia allegedly ordered Brownfield to delete photographs he had already taken; and (3) one in which Lewis declined to sign Artus and Brownfield’s petition, despite supporting its goals, because he feared retaliation from Consentino based upon prior harassment. The court dismissed the claims against Consentino arising from the first and third incidents because none of Consentino’s alleged actions would have been sufficient to chill the speech of a reasonably hardy individual, except possibly one act that occurred outside the statute of limitations. The court dismissed Brownfield’s claims arising from the second incident because Polito’s actions as a town meeting moderator were protected by absolute legislative immunity, and Sapia was not acting under color of state law at the meeting. The court remanded the remaining state law claim and counterclaims to state court. 24 pages. Judge Paul Barbadoro.


CIVIL RIGHTS
10/5/09
O’Mara v. Dionne, et al.
Case No. 08-cv-51-SM, Opinion No. 2009 DNH 147

Because the defendants failed to produce evidence on issues related to conditions of confinement and an alleged due process violation, their motion for summary judgment was denied as to those two claims. In all other respects, it was granted. 22 pages. Chief Judge Steven J. McAuliffe.


CHOICE OF LAW; COMMERCIAL LITIGATION
10/7/09
Stonyfield Farm v. AgroFarma, et al.
Civil No. 08-cv-488-JL, Opinion No. 2009 DNH 150

Stonyfield Farm and Schreiber Foods moved for judgment on the pleadings with respect to four of Agro-Farma’s counterclaims arising out of a yogurt manufacturing relationship gone sour. Both parties agreed that if New Hampshire law applied, the counterclaims were preempted by the Uniform Trade Secret Act, N.H. Rev. Stat. § 350-B:7. The parties disputed the choice-of-law issue, however, with Stonyfield and Schreiber arguing for New Hampshire law and Agro-Farma arguing for New York law. The court granted the motion, ruling that New Hampshire law governed under both a contractual choice-of-law provision and general choice-of-law principles and therefore preempted the counterclaims. 26 pages. Judge Joseph N. Laplante


CONTRACTS
10/30/09
Hitchiner Manufacturing Co., Inc. v. Modern Industries, Inc.
Case No. 09-cv-242-PB, Opinion No. 2009 DNH 163

Hitchiner Manufacturing Co., Inc. ("Hitchiner") sought an injunction compelling Modern Industries, Inc. ("Modern") to participate in an arbitration proceeding before the American Arbitration Association. The court denied Hitchiner’s motion to compel arbitration under the Federal Arbitration Act on the grounds that an arbitration clause was never incorporated into the contracts between the parties. The court granted Hitchiner leave to amend its complaint to include the allegations contained in its arbitration demand. 12 Pages. Judge Paul Barbadoro.


CONTRACTS, RECOUPMENT, UNCLEAN HANDS
10/9/09
Transfer My Timeshares v. Laura Selway
Civil No. 08-cv-118-JL, Opinion No. 2009 DNH 153

The plaintiff moved for summary judgment on the only issue that the parties in this embezzlement case had been unable to settle: whether the defendant had a right to recoup the unpaid portion of a buyout agreement that the parties executed shortly before the plaintiff learned that the defendant, one of its managing members, had been embezzling client funds. The court granted the motion, concluding that the defendant (who filed no response to the summary judgment motion) had no right to recoupment because she fraudulently induced the buyout agreement and came to the court with unclean hands. 13 pages. Judge Joseph N. Laplante.


CRIMINAL CASES
10/30/09
United States v. Taliaferro
Case No. 08-cr-7-1-SM, Opinion No. 2009 DNH 164

The court solicited briefing from the parties on the following questions: 1. If the court rejects that part of the plea agreement providing for a specific sentence (i.e., 15 years), and the prosecution "withdraws" from the plea agreement, can the court vacate defendant’s previously-accepted guilty pleas, either sua sponte or on motion of the prosecution, lawfully and consistently with defendant’s rights under the Double Jeopardy Clause, in the absence of defendant’s own affirmative election to withdraw her accepted pleas? 2. Should the court reject the specific sentence provision in the plea agreement, and should the defendant decline to withdraw her guilty pleas, and should the court impose a sentence below that called for by the agreement but at or above the applicable statutory mandatory minimum (10 years), would that sentence be lawful? 3. Is it now too late for the prosecution to file an information under the provisions of 21 U.S.C. § 851(a)(1), raising the mandatory minimum to 20 years, absent defendant’s election to withdraw her pleas, since the prosecution failed to file an information before defendant’s guilty pleas were accepted by the court and jeopardy attached? 9 pages. Chief Judge Steven J. McAuliffe.


DISCOVERY, ATTORNEY-CLIENT PRIVILEGE, DAMAGES

10/27/09
Kenneth P. Saalfrank v. Town of Alton et al.
Civil No. 08-cv-46-JL, Opinion No. 2009 DNH 162

After the plaintiff sued them for violating his federal constitutional and state common-law rights through a series of allegedly illegal searches, detentions, and prosecutions, the defendants moved to compel the production of various documents from him, including his medical records, his case file with the attorney who had defended him against one of the criminal charges giving rise to some of the civil rights claims, his employment history, and his probation records. The plaintiff had objected to these requests on grounds of psychotherapist-patient and attorney-client privilege and relevance. Denying the motion, the court ruled that (1) the plaintiff had not waived the privileges by disclosing the fact that he communicated with his doctors or the attorney in question, since he had not disclosed a substantial part of any of those communications, (2) the plaintiff had not waived the psychotherapist-patient privilege by claiming that the defendants had caused him serious emotional distress, either intentionally or through malicious prosecution, in the absence of an argument by the defendants that the nature of those claims required expert medical testimony of emotional distress, (3) the plaintiff had not waived the attorney-client privilege by putting the quality of the representation at issue, (4) the plaintiff’s employment history was not relevant, since he had affirmatively disclaimed any loss of income or earning capacity, and (5) in the absence of any showing that the defendants could not themselves obtain the public records of the plaintiff’s probation, the court would not compel the plaintiff to provide a release to that effect. 29 pages. Judge Joseph N. Laplante.


DISCOVERY, JURISDICTION, BANKRUPTCY
10/30/09
New England Wood Pellet, LLC v. New England Pellet, LLC et al.
Civil No. 09-cv-123-JL, Opinion No. 2009 DNH 165

The plaintiff, a New Hampshire-based manufacturing company, sued the defendant, a Connecticut-based distributor, in New Hampshire Superior Court for breaching the parties’ reseller agreement and using a name confusingly similar to the plaintiffs’ in violation of § 43(a) the Lanham Act, 15 U.S.C. § 1125(a) and the consumer protection laws of Connecticut, Massachusetts, and Vermont. The plaintiff also brought a claim against the distributor’s principals, seeking to pierce its corporate veil and hold them liable for the plaintiff’s claims against the distributor. After the plaintiff commenced the action, the distributor filed for bankruptcy protection in the Connecticut Bankruptcy Court, and the defendants removed the plaintiff’s action against them to the federal district court under 28 U.S.C. § 1452, invoking its subject-matter jurisdiction over cases "related to" bankruptcy proceedings under 28 U.S.C. § 1334(b). The plaintiff moved to remand. Denying the motion, the court ruled that (1) the plaintiff’s claims were "related to" the distributor’s bankruptcy case in that, if successful, they would create liabilities against the debtor; this included the veil-piercing claim against the principals, which by its nature could succeed only if the debtor’s underlying liability were established and (2) equitable remand under § 1452(b) was not appropriate, given the relationship between the case and the bankruptcy proceeding, and the absence of any strong reasons to return the case to the Superior Court. For largely the same reasons, the court granted the defendants’ motion to transfer the case to the District Court for the District of Connecticut. 37 pages. Judge Joseph N. Laplante.


ERISA; QDRO EXCEPTION, WELFARE BENEFIT PLANS
10/1/09
Metropolitan Life Insurance Co. v. Judith A. Hanson, et al.
Civil No. 08-cv-248-JL, Opinion No. 2009 DNH 146

Relying on plain, unambiguous text of statute, and following authority from other circuits, court decided, in motion for summary judgment in interpleader action, that the qualified domestic relations order ("QDRO") exception to ERISA preemption applies not only to pension plans, but to welfare benefit plans such as life insurance policies. 11 pages. Judge Joseph N. Laplante.


PERSONAL JURISDICTION; COMMERCIAL LITIGATION
10/16/09
GT Solar v. Fabrizio Goi
Civil No. 08-cv-249-JL, Opinion No. 2009 DNH 156

GT Solar brought this action advancing various tort and contract claims against Fabrizio Goi, a former employee of GT Solar’s Italian supplier, VRV, S.p.A. GT Solar alleged that Goi, while working in Italy, obtained certain confidential information regarding GT Solar’s manufacturing processes and later shared the information with a California competitor. Goi moved to dismiss the action for lack of personal jurisdiction and under a theory of forum non-conveniens. Goi also filed a motion requesting the court to take judicial notice of non-party VRV’s alleged lack of cooperation in the discovery process. The court denied Goi’s motions. The court concluded that it could properly assert specific jurisdiction over GT Solar’s contract claims because Goi’s alleged email and telephone contacts with New Hampshire were purposeful and instrumental in the formation of the contracts in question. The court also concluded that exercise jurisdiction is reasonable in this case. The court decided to exercise pendent jurisdiction over the remainder of GT Solar’s claims because they arose from a common nucleus of facts as the contract claims. The court rejected Goi’s forum non conveniens motion, concluding that Goi did not demonstrate that Italy was a more convenient and fair forum. Finally, the court dismissed the judicial notice motion because Goi’s allegation of "non-cooperation" did not satisfy, under any measure, the requirements for a judicially noticed fact. 51 pages. Judge Joseph N. Laplante.


HABEAS CORPUS
10/21/09
Sawtell v. NHSP Warden
Case No. 06-cv-229-SM, Opinion No. 2009 DNH 157

Summary judgment was granted to the respondent on grounds that the petitioner had procedurally defaulted the claims advanced in his habeas corpus petition during state court proceedings. 11 pages. Chief Judge Steven J. McAuliffe.


JURISDICTION
10/15/09
Sun Life Assurance Co. of Canada v. Plaisted, et al.
Case No. 09-cv-108-SM, Opinion No. 2009 DNH 155

The court dismissed this interpleader action for lack of diversity subject matter jurisdiction, since the adverse claimants to the fund are both residents of New Hampshire. 12 pages. Chief Judge Steven J. McAuliffe.


JURISDICTION: SUBJECT MATTER; REMAND
10/13/09
SAU #59 v. Lexington Insurance Co., et al.
Case No. 09-cv-168-PB, Opinion No. 2009 DNH 152

Plaintiff Winnisquam Regional School District filed a motion to remand claiming that the court lacked diversity of citizenship jurisdiction over its action because Winnisquam shares New Hampshire citizenship with several corporate defendants that were originally incorporated in New Hampshire but then re-domesticated as Pennsylvania corporations. The court denied the motion. The court first concluded that under New Hampshire law, a re-domesticated corporation ceases to be incorporated in New Hampshire upon completion of the re-domestication process. Second, the court rejected the argument that 28 U.S.C. § 1332(c)(1), which states that a corporation is a citizen of any state in which it "has been" incorporated, dictates that a corporation that was originally incorporated in New Hampshire but has been re-domesticated as a Pennsylvania corporation be treated as a New Hampshire citizen. The court reasoned that this result would be inconsistent with the overarching purpose of the diversity statute. 7 pages. Judge Paul Barbadoro.


PERSONAL JURISDICTION; VENUE
10/23/09
New England College v. Drew University, et al.
Civil No. 08-cv-424-JL, Opinion No. 2009 DNH 158

Drew University moved to dismiss for lack of personal jurisdiction or else to transfer venue in a case involving an alleged effort by the defendants to move an established poetry program from New England College in New Hampshire to Drew University in New Jersey. The court denied the motion, concluding that jurisdictional discovery had enabled the plaintiff to make a prima facie showing of personal jurisdiction under both an agency theory and the "effects" theory first recognized in Calder v. Jones, 465 U.S. 783 (1984). As to venue, the court ruled that Drew University had not overcome the presumption favoring the plaintiff’s choice of its home forum. 19 pages. Judge Joseph N. Laplante.


SECURITIES LAW
10/7/09
Arkansas Public Employees Retirement Fund v. GT Solar
Civil No. 08-cv-312-JL, Opinion No. 2009 DNH 149

Plaintiff, an investor, sued a manufacturing company, together with a number of its directors and officers, the venture capital firms that own a controlling interest in the company, and the investment banks that underwrote the company’s initial public offering, under §§ 11 and 12(2) of the Securities Act of 1933, 15 U.S.C. §§ 77k, 77l(a)(2). Plaintiff alleged that, in violation of the Act, the prospectus accompanying the IPO contained statements that were materially misleading in light of the failure to disclose certain material facts, particularly the substantial likelihood that the company’s biggest customer would stop buying from the company--a fact that was announced by the customer the day after the IPO. Denying the defendants’ motion to dismiss for failure to state a claim, the court ruled that (1) the plaintiff did not need to allege that the defendants knew or should have known of the omitted fact at the time of the prospectus to state a claim under §§ 11 or 12(2), (2) in any event, the complaint alleged facts sufficient to create a plausible inference that the defendants had such knowledge, (3) the complained-of statements in the prospectus could have been materially misleading in the sense that they were not (a) simply accurate statements of historical fact, (b) accompanied by sufficient cautionary language, or (c) puffery, (4) the complaint adequately alleged loss causation, since the company’s stock fell sharply in heavy trading on the day after the IPO, when the allegedly nondisclosed fact was revealed, and (5) the complaint adequately alleged "control person" liability against the company’s controlling shareholders under § 15 of the Act, since certain of the shareholders’ employees were subject to direct liability under § 11 for having signed the prospectus. 33 pages. Judge Joseph N. Laplante.


VENUE (TRANSFER)
10/7/09
United States v. Kaluanya
Case No. 09-cr-107-SM, Opinion No. 2009 DNH 148

Pursuant to Fed. R. Crim. P. 21(b), the court granted defendant’s motion to transfer venue of this criminal prosecution to the United States District Court for the Southern District of Texas. 9 pages. Chief Judge Steven J. McAuliffe.

Click for directions to Bar events.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer