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Bar News - October 15, 2010


US District Court Decision Listing - September 2010

* Published

ATTORNEY’S FEES
9/30/10
T-Peg, Inc. v. Vermont Timber Works, Inc., et al.
Case No. 03-cv-462-SM, Opinion No. 2010 DNH 172

After obtaining a jury verdict in their favor, defendants sought an award of attorney’s fees under the Copyright Act, which vests the court with discretion to award fees to the prevailing party in an infringement action, including to prevailing defendants. The court considered the several relevant factors identified by the Supreme Court and concluded that, on balance, the interests promoted by the Copyright Act would be best served by awarding defendants a partial award of attorney’s fees, in an amount sufficient to encourage defendants to advance legitimate defenses, while not so great as to deter copyright holders from pursuing legitimate infringement claims. 15 pages. Chief Judge Steven J. McAuliffe.


BREACH OF CONTRACT: FRANCHISE AGREEMENTS, SUMMARY JUDGMENT
09/08/10
Coldwell Banker v. Brian Moses, et al.
Case No. 08-cv-50-LM, Opinion No. 2010 DNH 176

In this litigation arising out of two separate franchise agreements between plaintiff and defendants, both parties filed cross motions for summary judgment. Plaintiff won summary judgment on its multiple breach of contract claims but was denied summary judgment on the issue of damages because genuine issues of material fact remained. Plaintiff did not need an expert witness to prove damages, and its damages witness was timely disclosed in accordance with Fed. R. Civ. P. 26. Defendants’ cross claims for fraud-in-the-inducement, negligent misrepresentation, breach of contract and violations of RSA § 358-A were dismissed on summary judgment, because the contracts clearly stated the allegedly misrepresented terms and, to the extent there was some good faith misunderstanding about those terms, any claim based thereon was barred by the statute of limitations. Defendants moved for summary judgment on plaintiff’s trademark infringement claims, which was denied because genuine issues of fact remained about whether that use caused the requisite confusion in the relevant public and whether it might be protected by the nominative fair use test. Finally, defendant won summary judgment on plaintiff’s breach of the guaranty claim, which was barred by the statute of limitations. 55 Pages. Magistrate Judge Landya McCafferty.


CIVIL RIGHTS
9/28/10
Nawrocki v. Wilson, et al. (Motions to Dismiss)
Case No. 10-cv-304-SM, Opinion No. 2010 DNH 169

In what amounts to a dispute over the right to enforce easements in a residential subdivision, the court dismissed the plaintiff’s federal civil rights claims (brought under multiple sections of the Civil Rights Act) against ten non-governmental defendants because the plaintiff did not claim racial discrimination or other actionable conduct, and none of the defendants was alleged to have been acting under color of state law. The plaintiff’s claims against one governmental defendant were dismissed on grounds of Eleventh Amendment immunity. 14 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS - PRETRIAL DETAINEE
9/29/10
Michael G. Cheney v. Carroll County House of Corrections, et al.
Case No. 10-cv-202-JD, Opinion No. 2010 DNH 170

While a pretrial detainee at the Carroll County House of Corrections, Cheney brought suit against the jail and a correctional officer, alleging that his civil rights had been violated by the jail’s failure to provide a residential treatment program for his alcoholism. On preliminary review, the magistrate judge recommended that Cheney’s claims be dismissed. Cheney objected to the recommendation and moved to amend his complaint to add claims against two state court judges and the Carroll County District Court. The court approved and adopted the magistrate judge’s report and recommendation and denied Cheney’s motion to amend. 9 pages. Judge Joseph A. DiClerico, Jr.


FEDERAL STATUTES (TELECOMMUNICATIONS ACT)
9/9/10
New Cingular Wireless PCS v. Town of Greenfield, et al.
Case No. 09-cv-399-SM, Opinion No. 2010 DNH 162

Because the defendant ZBA’s denial of a variance for a 100-foot cell tower failed to satisfy the written-decision requirement of the Telecommunications Act and was not supported by substantial evidence, the court granted the plaintiff’s motion for summary judgment and ordered the defendants to authorize construction of the tower, as proposed by the plaintiff. 26 pages. Chief Judge Steven J. McAuliffe.


HABEAS CORPUS
9/10/10
Brown v. Warden, NHSP
Case No. 09-cv-139-SM, Opinion No. 2010 DNH 163

Approximately ten months after pleading guilty to numerous counts of aggravated felonious sexual assault in state court, petitioner sought to withdraw his guilty plea on grounds that his counsel was operating under a conflict of interest. When that motion was denied (both at the trial court and on appeal), he sought federal habeas corpus relief. The court denied the requested relief, concluding that the state supreme court’s determination that petitioner had conflict-free counsel and that his constitutional rights were not violated was not contrary to, nor did it involve an unreasonable application of, clearly established federal law. 20 pages. Chief Judge Steven J. McAuliffe.


PRODUCTS LIABILITY, NEGLIGENCE, ENHANCED COMPENSATORY DAMAGES
9/14/10
Bartlett v. Mut. Pharm. Co.,
Civil No. 08-cv-358-JL, Opinions No. 2010 DNH 164

In advance of trial in this products liability case arising from severe injuries caused by the prescription drug sulindac, the court granted judgment as a matter of law to the defendant drug manufacturer on the plaintiff’s claims for negligence and enhanced compensatory damages. The court concluded that the negligence claim was largely an improper attempt by the plaintiff to revive her failure-to-warn claim, on which summary judgment had already been granted, and otherwise failed because the plaintiff had not presented sufficient evidence that the manufacturer’s alleged negligence caused her injuries. Among other things, her causation theory was based on unsupported speculation about what the Food & Drug Administration ("FDA") would have done in hypothetical circumstances. Since the plaintiff’s claim for enhanced compensatory damages was based on the same conduct, it also failed for lack of causation. (At trial, the jury returned a large verdict for the plaintiff.) 34 pages. Judge Joseph N. Laplante.


SANCTIONS
9/28/10
Nawrocki v. Wilson, et al.
Case No. 10-cv-304-SM, Opinion No. 2010 DNH 168

The court denied two motions for sanctions filed by the plaintiff on grounds that they were ill-founded, and denied a defendant’s motion for sanctions for failure to comply with the Rule 11 "safe harbor" provision. But, sua sponte, the court ordered certain irrelevant and scandalous material submitted by the plaintiff to be stricken. 7 pages. Chief Judge Steven J. McAuliffe.


SOCIAL SECURITY
9/2/10
Simmons v. Social Security Administration
Case No. 09-cv-378-PB, Opinion No. 2010 DNH 161

After the denial of her application for disability insurance benefits, plaintiff Melissa Simmons brought suit under the Social Security Act, 42 U.S.C. § 405(g), challenging the administrative law judge’s decision. Specifically, Simmons contended that the administrative law judge erred in determining that her multiple sclerosis did not meet the applicable listing. Simmons also contested the administrative law judge’s decision to rely solely on the Grid instead of using a vocational expert. The court entered judgment affirming the Commissioner’s decision, finding that substantial evidence supported the administrative law judge’s determination that Simmons’ claims were not entirely credible. 31 Pages. Judge Paul Barbadoro.


SOCIAL SECURITY
9/8/10
O’Dell v. Social Security Administration
Case No. 05-cv-40-PB, Opinion No. 2010 DNH 159

George O’Dell sought to reverse the Commissioner’s decision that he was not eligible for disability insurance benefits, arguing that the Commissioner improperly disregarded the medical opinions of several doctors regarding the severity of his injuries and failed to adequately consider all of his impairments. O’Dell suffered from a long-term back injury, obesity, and mental health issues, but the Commissioner determined that he was still capable of sedentary work when he was insured. The court affirmed the decision because the Commissioner properly considered the medical opinions, making credibility findings that were supported by substantial evidence in light of the nature of the medical relationships, the objective medical evidence in the case, and the overall record. The Commissioner also appropriately considered all of O’Dell’s impairments. 30 Pages. Judge Paul Barbadoro.


SPOLIATION OF EVIDENCE
9/30/10
Robert Rockwood and Roxana Marchosky v. SKF USA Inc.
Civil No. 08-cv-168-JNL, Opinion No. 2010 DNH 171

The defendant moved to dismiss this action, which arose out of a failed deal between the parties for the acquisition of the plaintiffs’ company, as a sanction for their careless and intentional destruction of evidence. The defendant argued that (1) the plaintiffs had failed to take reasonable measures to ensure that their company’s business records were not destroyed following its lender’s repossession of those records, and their sale to a third party, following the company’s default and

(2) one of the plaintiffs had deleted numerous documents from his laptop computer just before producing it to the defendant for examination as ordered by the court. The court imposed a sanction less severe than the requested dismissal, ruling that (1) the destruction of certain of the business records did not warrant any sanction, because it was not the plaintiffs’ fault, nor did it occasion any prejudice to the defendant, which had since obtained nearly all of the relevant records; and

(2) while the plaintiff was at fault--and in violation of the court’s discovery order--in deleting documents from the laptop, the defendant’s forensic examiner was still able to compile a list of those documents, and the plaintiff had since located almost all of them in paper form, so the deletions did not prejudice the defendant. While the court therefore declined to dismiss the case as a sanction for the deletions, it ruled that it would nevertheless draw an adverse inference against the plaintiff’s credibility as a witness at the jury-waived trial. 25 pages. Judge Joseph N. Laplante.

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