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Bar News - October 20, 2006


NH District Court Decision Listing – Sept. 2006

* Published

 

ABSTENTION

 

9/25/06 Pop Warner v. NH Youth Football, et al.

Civil No. 06-cv-098-SM, Opinion No. 2006 DNH 108

 

Defendants sought to dismiss or, alternatively, to stay the federal case against them on the grounds that it involves state claims that would be more appropriately heard in state court and because a pending state case involves substantially similar issues.  Finding that the federal claims raised no unsettled questions of state law, and that the state action was not parallel to the federal action, the court denied the motion.  10 pages.  Chief Judge Steven J. McAuliffe.

 

CIVIL RIGHTS § 1983: PRISONER

 

9/27/06 Starr v. Warden, et al.

Civil No. 04-cv-002-SM, Opinion No. 2006 DNH 110

 

Plaintiff, an inmate at the Northern Correctional Facility in Berlin, New Hampshire, brought suit claiming defendants violated his constitutionally protected right to marry when they refused to transport him from the prison to the local town clerk’s office so he might obtain a marriage license.  The court granted defendants’ motion for summary judgment, concluding that even if jail administrators have an obligation to affirmatively assist inmates in exercising certain constitutional rights, in this case their refusal to do so was warranted by a reasonable policy, motivated by legitimate penological goals.  That is, transporting C-3 status inmates (and higher) out of the prison and to a public place so they might obtain a marriage license posed a legitimate security threat.  16 pages.  Chief Judge Steven J. McAuliffe.

 

CLASS ACTIONS

 

9/29/06 Bryson v. NH DHHS, et al.

Civil No. 99-cv-558-SM, Opinion No. 2006 DNH 113

 

Following a bench trial, the court ruled in favor of the New Hampshire Department of Health and Human Services, concluding that plaintiffs were not entitled to the declaratory and injunctive relief they sought.  Specifically, the court held that compelling the State to expand its Medicaid waiver program for individuals with acquired brain disorders so as to eliminate the current waiting list would constitute a fundamental alteration of that program and, therefore, is not required by either the Americans with Disabilities Act or the Rehabilitation Act.  24 pages.  Chief Judge Steven J. McAuliffe.

 

FEDERAL RULES OF CIVIL PROCEDURE 12(F) AND 9(B)

 

9/7/2006            Archdiocese of San Salvador and Archbishop Fernando Saenz LaCalle v.

FM International, LLC, et al.

Civil No. 05-cv-237-JD, Opinion No. 2006 DNH 102

 

The plaintiffs are seeking to recover more than $1 million dollars in disaster relief funds that were allegedly taken from them by the defendants through a scam that promised to increase their funds tenfold.  In response to a previous order dismissing some of their claims, the plaintiff’s amended their complaint to add detail to support their claims.  The defendants moved under Fed. R. Civ. P. 12(f) to strike an allegation pertaining to attendance at a critical meeting and moved to dismiss the fraud and consumer protection act claims for failure to allege fraud with sufficient particularity as required under Fed. R. Civ. P. 9(b).  The court denied the motion to strike, concluding that Rule 12(f) does not require parties to change allegations that are subsequently called into question and that the allegation did not otherwise meet the requirements of Rule 12(f).  With respect to the motion to dismiss, the court held that Rule 9(b) applied  and that the amended complaint satisfied the pleading requirements as to the veil piercing claim, the consumer protection act claim under Florida law, and the conspiracy claim but failed to state a claim of common law fraud.  The motion to strike was denied, and the motion to dismiss was denied in part and granted in part. 29 pages.  Judge Joseph A. DiClerico, Jr.

 

INSURANCE

 

9/29/06 Prostkoff v. The Paul Revere Life Insurance Co., et al.

Civil No. 05-cv-313-PB, Opinion No. 2006 DNH 112

 

Plaintiff Melvin Prostkoff sought a declaratory judgment pursuant to New Hampshire law that the disability income policy issued to him by the Paul Revere Life Insurance Co. and its parent company, UnumProvident Corp., provides for annual cost of living increases to his monthly disability payment for the duration of his life.  The court ruled for the defendant, finding that the terms of the insurance policy prohibited cost of living increases after the plaintiff’s 65th birthday. 

13 pages.  Judge Paul Barbadoro.

 

INTELLECTUALPROPERTY
(COPYRIGHT / TRADEMARK)

 

9/11/06 Pop Warner v. NH Youth Football, et al.

Civil No. 06-cv-098-SM, Opinion No. 2006 DNH 104

 

Plaintiffs, Pop Warner and two dissenting board members of the New Hampshire Youth Football & Spirit Conference (“NHYF”), brought suit against NHYF and its majority board members alleging trademark infringement, cybersquatting, and related state claims.  Plaintiffs sought a preliminary injunction to enjoin NHYF from using the Pop Warner trademarks and a Web site address previously associated with Pop Warner.  After a hearing on the matter, the court concluded that NHYF had already removed a majority of the protected marks from its Web site and that NHYF would promptly terminate any inadvertent continued use.  Because plaintiffs failed to show a likelihood of success on the merits of its trademark claims, the motion was denied.  10 pages.  Chief Judge Steven J. McAuliffe.

 

9/15/06 Beckwith Builders v. Depietri, et al.

Civil No. 04-cv-282-SM, Opinion No. 2006 DNH 106

 

Plaintiff, a home builder, brought copyright and trademark infringement claims, as well as various state law causes of action against a homeowner, a home builder, and three architects, among others.  In this order, all claims against the homeowner’s wife were dismissed, as were the trademark claims and state law claims for unjust enrichment, violation of the New Hampshire Consumer Protection Act, intentional interference with contractual relations, and breach of contract.  The court also dismissed plaintiff’s copyright infringement claim, to the extent it asserted that the construction of a building by one defendant infringed plaintiff’s copyright in an architectural plan.  36 pages.  Chief Judge Steven J. McAuliffe.

 

JURISDICTION (Personal)

 

9/15/06 Beckwith Builders v. Depietri, et al.

Civil No. 04-cv-282-SM, Opinion No. 2006 DNH 107

 

Defendant’s motion to dismiss for lack of personal jurisdiction was granted where defendant architectural firm did all of its work for plaintiff in Massachusetts.  17 pages.  Chief Judge Steven J. McAuliffe.

 

9/28/06 Eiriksson v. Cleco Manufacturing, et al.

Civil No. 06-cv-00235-PB, Opinion No. 2006 DNH 111

 

Third-Party Defendant Connecticut Precast Corp.’s motion to dismiss for lack of personal jurisdiction was granted where Connecticut Precast, a Connecticut corporation, had only one customer in New Hampshire during its years of operation.  In granting the motion, the court held that Connecticut Precast’s single New Hampshire contact was insufficient to confer general personal jurisdiction over Connecticut Precast.  The court also held that an exercise of jurisdiction pursuant to Fed. R. Civ. P. 4(k)(1)(B) was improper because Connecticut Precast was not served within the 100 mile “bulge area” surrounding the federal courthouse in Concord.  14 pages.  Judge Paul Barbadoro.

 

POST TRIAL MOTIONS

 

9/8/06   King v. Rivas, et al.

Civil No. 04-cv-356-SM, Opinion No. 2006 DNH 103

 

Following trial, a civil jury concluded that defendant violated plaintiff’s constitutionally protected rights by falsely accusing him of being one of several inmates who allegedly tried to take the defendant - a correctional officer - hostage.  As a result of that false accusation, plaintiff (a pretrial detainee) was transferred to the jail’s restricted housing unit and subjected to extremely harsh conditions of confinement for approximately six months.  But, when the jury awarded him only $1 in nominal damages and $500 in punitive damages, plaintiff moved for a new trial on damages.  The court granted his motion, concluding that, as a matter of law, plaintiff suffered compensable damages (not merely nominal damages) as a result of his wrongful detention in the restricted housing unit.  Accordingly, he was entitled to a new trial on the issue of damages.  7 pages.  Chief Judge Steven J. McAuliffe.

 

SECURITIES

 

9/27/06 In re: StockerYale Securities Litigation

Civil No. 05-cv-177-SM, Opinion No. 2006 DNH 109

 

Plaintiffs in this class action securities litigation brought various claims against StockerYale, Inc., as well as several of its officers and directors.  Plaintiffs allege that defendants issued two false and misleading press releases that resulted in a dramatic increase in the price of StockerYale shares, and several defendants unlawfully benefitted from their knowledge of the press releases’ falsity by selling StockerYale shares the day after the first press release.  Defendants moved to dismiss several claims, claiming they failed to meet the heightened pleading requirements of the Private Securities Litigation Reform Act.  The court denied those motions, holding that plaintiffs’ claims were pled with adequate specificity.  39 pages.  Chief Judge Steven J. McAuliffe.

 

WRONGFUL TERMINATION

 

9/6/2006            Kathleen Scannell v. Sears Roebuck and Company

Civil No. 06-cv-227-JD, Opinion No. 2006 DNH 101

 

Scannell alleges that her employment at Sears was wrongfully terminated by constructive discharge due to the hours she was required to work without compensation.  Sears moved to dismiss the claim on the grounds that she failed to allege either wrongful termination or constructive discharge.  The court denied the motion, concluding that Scannell adequately alleged a violation of public policy arising from the Fair Labor Standards Act and against the treatment she received and refused to accept from Sears.  The court held that Sears failed to provide the statutory preemption analysis necessary to avoid a public policy under the FLSA.  The court also determined that Scannell alleged sufficient facts, although minimally, to support constructive discharge.  14 pages.  Judge Joseph A. DiClerico, Jr.

 

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