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

Everything you need to purchase a court bond is just a click away.

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - August 11, 2006

US District Court Decision Listing – June 2006






Croft v. Coplan

Civil No. 04-cv-328-SM, Opinion No. 2006 DNH 067


Sean Croft, a state inmate currently being housed in Colorado, brought this action against the former warden of the state prison, claiming she orchestrated his transfer to an out-of-state correctional facility in a deliberate effort to hinder his ability to pursue a then-pending state court petition to reduce his sentence - all in violation of his constitutionally protected right to have meaningful access to the courts.  The court granted defendant’s motion for summary judgment, holding that because the state court ruled on the merits of Croft’s petition for sentence reduction, he was not denied adequate, effective, and meaningful access to the courts; neither state law nor the Constitution guarantee Croft a right to an evidentiary hearing on that petition.  14 pages.  Chief Judge Steven J. McAuliffe.





*In re Tyco Int’l, Ltd. Multidistrict Litig.

MDL No. 02-1335-B, Opinion No. 2006 DNH 065


Plaintiffs in the securities action moved for certification of a class “consisting of all persons and entities who purchased or otherwise acquired Tyco securities between December 13, 1999 and June 7, 2002, excluding defendants, all of the officers, directors and partners thereof, members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which any of the foregoing have or had a controlling interest.”  Defendant’s primary argument against class certification was that some class members (primarily those who sold their Tyco stock) have an interest in recovering damages from Tyco while other class members (primarily those who retain their Tyco stock) have an interest in preventing Tyco from paying damages.  The court held that this potential conflict did not bar certification chiefly because individuals who retain Tyco stock have an interest in recovering on their claims against Tyco and because individuals who sold their stock have no practical way to proceed in the absence of class certification.  The court also held that class certification was not barred by the necessity of proving loss causation (an element of securities fraud) based on a variety different “corrective disclosures” by Tyco.  Finally, the court held that an investment company that purchased Tyco stock for its clients’ accounts did not have standing because it had not suffered an injury in fact.  25 pages.  Judge Paul J. Barbadoro.





Campbell v. IntelliSoft Group, Inc.

Case No. 05-cv-333-PB, Opinion No. 2006 DNH 071


Plaintiff alleged that her former employer discriminated against her based on disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.  An employer is subject to the ADA if it has 15 or more employees during 20 calendar weeks in the current or preceding year.  Plaintiff conceded that her employer did not have the requisite number of employees during the relevant time frame.  Accordingly, her ADA claim was dismissed.  2 pages.  Judge Paul J. Barbadoro.





Davey v. Life Insurance Co. of North America

Case No. 05-cv-126-PB, Opinion No. 2006 DNH 068


Donna Davey brought a claim under the Employee Retirement Income Security Act of 1974 (“ERISA”) to recover benefits allegedly owed to her under the terms of her former employer’s long-term disability plan.  Davey alleged that the decision to terminate her long-term disability benefits was unreasonable and not supported by medical evidence.  The court found that there was substantial evidence to support the defendant’s decision to terminate Davey’s long-term disability benefits and accordingly granted the defendant’s motion for judgment on the administrative record.  39 pages.  Judge Paul J. Barbadoro.





DesRoches v. Postmaster General,


U.S. Postal Service

Civil No. 05-cv-88-PB, Opinion No. 2006 DNH 066


Plaintiff successfully litigated an employment discrimination claim with the Equal Employment Opportunity Commission (“EEOC”).  He sought to challenge the EEOC’s determination that his employer, the U.S. Postal Service, had complied with the EEOC’s order awarding him relief.  The court held that an employment discrimination claimant could seek federal court relief in two circumstances: (1) in a judicial enforcement proceeding pursuant to 29 C.F.R. § 1614.503(g), which was only available if the EEOC determined that an employer was not complying with an EEOC decision; and (2) in a de novo civil action pursuant to 42 U.S.C. § 2000e-16(c).  In plaintiff’s case, the EEOC had determined that the U.S. Postal Service complied with the EEOC’s order, so plaintiff was not entitled to a judicial enforcement proceeding.  As plaintiff was not seeking de novo review, his case not cognizable under § 2000e-16(c) either.  Accordingly, defendant’s motion for judgment on the pleadings was granted.  14 pages.  Judge Paul J. Barbadoro.





Parker v. MVM, Inc.

Civil No. 05-cv-380-SM, Opinion No. 2006 DNH 070


Plaintiff sued his former employer alleging that it wrongfully terminated his employment, in violation of state common law as well as state and federal statutes prohibiting age discrimination.  The court granted defendant’s motion to dismiss plaintiff’s common law wrongful termination claim, concluding that: (1) because plaintiff claimed his employment at will was terminated solely because of his age, he failed to alleged that he had been discharged because he had engaged in conduct (or refused to engage in conduct) with public policy implications; and (2) under binding circuit precedent interpreting New Hampshire common law, a plaintiff cannot pursue a common law wrongful termination claim if a statutory remedy arising from the same conduct is available.  7 pages.  Chief Judge Steven J. McAuliffe.





Gaylor v. Bush

Case No. 05-cv-339, Opinion No. 2006 DNH 073


Plaintiff was convicted and sentenced on three counts of theft and one count of tax evasion.  He was extradited from Switzerland on the theft charges but not on the tax evasion charge.  However, the N.H. Department of Corrections erroneously treated him as if he were serving his sentence for the tax evasion charge.  In a petition for habeas corpus, plaintiff argued that this error violated the extradition treaty between the U.S. and Switzerland and that the remedy for the treaty violation was his immediate release.  The court held that any harm plaintiff suffered as a result of the error was remedied by a state court order staying imposition of the tax evasion sentence.  Nevertheless, when plaintiff completes his sentences on the theft charges, he must be given an opportunity to leave the U.S. before he may be required to serve the tax evasion sentence.  5 pages.  Judge Paul J. Barbadoro.





Ablitt & Caruolo, P.C. v. Michaud

Case No. 05-cv-391-PB, Opinion No. 2006 DNH 075


Ablitt & Caruolo, P.C. (“Ablitt”) brought an interlocutory appeal of the bankruptcy court’s order denying its motion to dismiss an adversary proceeding brought against it by debtor Michaud.  The court dismissed Ablitt’s appeal because it did not present an unsettled question of law.  5 pages.  Judge Paul J. Barbadoro.





Hill of Portsmouth Condo v.


Parade Office, et al.

Civil No. 04-cv-403-SM, Opinion No. 2006 DNH 064


Condominium Association sought a judicial declaration that its members hold an enforceable easement for parking on adjacent property owned by defendants.  Defendants claimed the easement was extinguished when the prior owner of the dominant estate (i.e., the estate benefitted by the easement) subjected that property to the provisions of the New Hampshire Condominium Act without making any reference to the easement.  Alternatively, defendants asserted that the language of the easement itself allowed them to put the servient estate (i.e., the burdened property) to a use that was inconsistent with the parking rights of the condominium owners.  The court disagreed, concluding that although the declaration of condominium was silent, the easement passed by operation of law and was not extinguished.  See RSA 477:26.  The court also held that defendants could not use the servient estate in such a way that prevented members of the Association from exercising their right to park there.  21 pages.  Chief Judge Steven J. McAuliffe.

NHLAP: A confidential Independent Resource

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
© NH Bar Association Disclaimer