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Bar News - December 15, 2006


NH District Court Decision Listing – Nov. 2006

* Published

ATTORNEY FEES AND COSTS UNDER 28 U.S.C. § 1447(c)

 

11/21/06            Access Group, Inc. v. Daniel C. Federico

Civil No. 06-cv-275-JD, Opinion No. 2006 DNH 131

 

In a previous order, the court had found that the defendant lacked an objectively reasonable basis for removing the case to federal court.  The plaintiff moved for all attorney fees and costs associated with litigating the removal.  The court granted that request and applied the lodestar method for calculating a reasonable award of attorney fees under 28 U.S.C. § 1447(c).  The court noted that the plaintiff’s bill of costs failed to establish the local market rate for attorney fees.  Nevertheless, the court relied on its own understanding of the prevailing local rates and awarded the plaintiff $3,165 for attorney fees and $67.50 for costs. 

            7 pages.  Judge Joseph A. DiClerico, Jr.

 

ERISA

 

11/21/06            Laurendeau v. Sheet Metal Workers

                        Local 17C-NH

Civil No. 05-cv-441-JD, Opinion No. 2006 DNH 132

 

The plaintiff sought reinstatement of his pension benefits under ERISA.  Hi motions to modify the record to include materials that had not been part of the administrative proceeding and to suspend the local rule applicable to ERISA cases in order to conduct discovery were denied.  In support of his motion for judgment, the plaintiff again argued that the court should consider new evidence but failed to show any circumstances that would overcome the strong presumption that review is limited to the administrative record.  The court concluded that some of the issues the plaintiff raised had not been raised during the administrative proceedings, barring their consideration, and that under the governing discretionary standard, the administrative decision was not an abuse of discretion nor arbitrary or capricious. 

            16 pages.  Judge Joseph A. DiClerico, Jr.

 

FEDERAL RULE OF CIVIL PROCEDURE 24,
INTERVENTION

 

11/13/06            Brook Village North Associates v. Jackson, et al.

Civil No. 06-cv-046-JD, Opinion No. 2006 DNH 129

 

Brook Village North Associates, owners of Brook Village North Apartments, moved for a declaratory judgment that it is entitled to repay is HUD mortgage held by the Federal National Mortgage Association and claimed breach of contract.  Tenants of the Apartments moved to intervene as defendants to bring a counterclaim seeking a declaratory judgment that the Associates are violating their obligations under the National Housing Act and its implementing regulations.  The court concluded that the Tenants had not shown that HUD would not adequately represent their viable interests in the litigation, precluding intervention as a matter of right.  The court declined to allow permissive intervention because of the unsettled question intervention would raise as to standing. 

            11 pages.  Judge Joseph A. DiClerico, Jr.

 

HABEAS CORPUS

 

11/28/06            Small v. Cattell, Warden, NHSP

Civil No. 04-cv-405-PB, Opinion No. 2006 DNH 134

 

Daniel Small filed a petition for a writ of habeas corpus challenging his stalking conviction on over 100 different grounds.  His claims fall into four categories: (1) challenges to the underlying restraining order; (2) ineffective assistance of counsel; (3) prosecutorial misconduct; and (4) judicial misconduct and/or bias.  Small and Bruce Cattell, Warden of the New Hampshire State Prison, filed cross-motions for summary judgment.  The court determined that all of Small’s claims are all either procedurally barred or without merit, and thus denied his motion for summary judgment and granted the Warden’s cross-motion. 

            24 pages.  Judge Paul Barbadoro.

 

STATE ACTION - SECTION 1983

 

11/15/06            Mandeville v. Merrimack County DOC, et al.

Civil No. 05-cv-92-JD, Opinion No. 2006 DNH 130

 

The plaintiff brought an action pursuant to 42 U.S.C. § 1983, alleging violation of his constitutional rights while he was a pretrial detainee at the county jail.  In relevant part, the plaintiff alleged that a doctor who treated him outside of the jail failed to monitor the side effects of a prescribed medication, which constituted deliberate indifference to his serious medical need.  The doctor moved for summary judgment on the ground that he was not a state actor as required for actions under § 1983.  The court granted summary judgment in the doctor’s favor due to the absence of a contractual relationship, the plaintiff’s opportunity to be treated by a physician of his choice, and treatment outside of the jail. 

            5 pages.  Judge Joseph A. DiClerico, Jr.

 

 

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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