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Bar News - January 19, 2007

US District Court Decision Listing – November & December 2006

* Published




12/5/06  Samuel J. Bourne v. Town of Madison et al.

Civil No. 05-cv-365-JD, Opinion No. 2006 DNH 136


Plaintiff moved to amend his first amended complaint in a land use action concerning the use of a public access road located on the plaintiff’s property.  The court granted the motion in part.  Contrary to previous representations of the plaintiff, the second amended complaint attempted to add several new claims.  The court found no satisfactory justification for presenting these new claims seven months after the deadline for amendments to the pleadings.  Nevertheless, the court granted the motion to amend to the extent that the second amended complaint clarified and better explained the pre-existing claims. 

                11 pages.  Judge Joseph A. DiClerico, Jr.




12/14/06                Picard v. Hillsborough County DOC, et al.

Civil No. 05-cv-234-SM, Opinion No. 2006 DNH 141


Plaintiff, a former inmate at the Hillsborough County House of Corrections, brought suit seeking damages for alleged violations of his constitutional rights.  Specifically, he claimed defendants employed excessive force against him and retaliated against him in response to litigation he pursued against them years earlier.  Defendants moved for summary judgment.  The court granted that motion, holding that plaintiff failed to exhaust available administrative remedies, as is required by the Prison Litigation Reform Act.  Moreover, the court noted that even if plaintiff had exhausted, his claims would fail on the merits. 

                5 pages.  Chief Judge Steven J. McAuliffe.


12/18/06                Terry T. Thomas v. Hillsborough County Department ofCorrections, et al.

Civil No. 04-cv-437-PB, Opinion No. 2006 DNH 145


Defendant Hillsborough County Department of Corrections’ motion for summary judgment was granted.  In granting the motion, the court held that Plaintiff Terry Thomas failed to identify facts sufficient to support an inference of defendants’ deliberate indifference. 

                11 pages.  Judge Paul Barbadoro.




12/19/06                Murdy v. Nashua School District

Civil No. 05-cv-174-PB, Opinion No. 2006 DNH 148


Patricia Murdy sued her former employer, Nashua School District, alleging age discrimination, wrongful/constructive discharge, breach of contract, and breach of good faith and fair dealing.  Murdy bases her claims on defendant’s decision to assign her to a non-preferential course schedule despite her 31 years of teaching in the Nashua School District.  Defendants moved for summary judgment.  The parties agreed to dismiss the contract claims.  The court denied defendant’s motion for summary judgment with respect to Murdy’s age discrimination claim because facts that are material to this issue remain in genuine dispute.  The court granted defendant’s motion for summary judgment with respect to Murdy’s wrongful termination claim because this common law action is supplanted by a statutory cause of action. 

                10 pages.  Judge Paul Barbadoro.




11/7/06  Gatsas v. Manchester School District

Civil No. 05-cv-315-SM, Opinion No. 2006 DNH 127


Plaintiff, a former teacher, brought suit against the Manchester School District alleging gender discrimination, retaliation, and wrongful discharge.  Specifically, plaintiff alleged that she had been passed over for an interim administrator position because she was a woman.  Plaintiff further claimed that after filing a complaint for gender discrimination with the state, the defendant retaliated against her by, among other things, reassigning her to an undesirable teaching location.  The court denied the defendant’s motion for summary judgment on the age discrimination claim concluding that a remark made by an assistant principal could be reasonably construed to reflect impermissible discriminatory animus.  The court granted summary judgment on the retaliation and wrongful discharge claims, finding that plaintiff suffered no materially adverse employment actions as a result of her discrimination complaint, and because there exists a statutory remedy for the wrongful discharge claim. 

                24 pages.  Chief Judge Steven J. McAuliffe.


11/8/06  Marquez-Marin v. Gonzales, et al.

Civil No. 05-ds-247-SM, Opinion No. 2006 DNH 128


Plaintiff, a former Assistant United States Attorney, sued the Department of Justice, alleging that she was the victim of both national origin and gender-based discrimination, in violation of Title VII.  The government moved for summary judgment.  The court denied the government’s motion, concluding that plaintiff had pointed to sufficient evidence to raise a genuine issue of material fact as to the reasons for her termination. 

                15 pages.  Chief Judge Steven J. McAuliffe.




12/7/06  Nicholas Nikolopoulos and Peter Nikolopoulos v. Sophie Nikolopoulos, Madelyne E. Theodore, and Pamela Theodore Salera

Civil No. 06-cv-398-JD, Opinion No. 2006 DNH 137


Following their father’s death, the plaintiffs brought an equity action in state court against their step-mother and her daughters seeking the imposition of constructive trusts and injunctive relief.  The defendants removed to federal court asserting federal question subject matter jurisdiction.  The court granted the plaintiffs’ motion to remand to state court rejecting the defendants’ argument that, because the money at issue is the proceeds of the decedent’s long-term savings plan, which is governed by ERISA, the plaintiffs’ claim is preempted by federal law.  The court found that the plaintiffs’ lawsuit seeks recovery of the already distributed proceeds of the long-term savings plan.  As such, the plaintiffs’ claim does not seek benefits due under the terms of the plan, to enforce rights under the plan, or to clarify rights under the plan.  Thus, the court concluded that the defendants failed to establish the existence of a federal question. 

                6 pages.  Judge Joseph A. DiClerico, Jr.




12/19/06                Monadnock View Holdings, LLC v. Town of Peterborough, et al.

Civil No. 05-cv-449-PB, Opinion No. 2006 DNH 147


Plaintiff Monadnock View Holdings’ action was dismissed for failure to state a claim upon which relief could be granted.  In granting the motion, the court held that plaintiff’s equal protection claim failed to state a viable cause of action, its due process and takings claims failed because plaintiff declined to pursue available state remedies, and its antitrust claim was barred by state action immunity and Noerr-Pennington immunity. 

                32 pages.  Judge Paul Barbadoro.




12/20/06                Amy-Lin Larocque v. Jo Anne B. Barnhart, Commissioner, Social Security Administration

Civil No. 06-cv-022-JD, Opinion No. 2006 DNH 149


Claimant brought an action under 42 U.S.C. § 405(g) seeking judicial review of a Social Security Administration decision denying her supplemental security income benefits.  An ALJ had concluded that the claimant was not disabled and the Appeals Council denied administrative review.  The court granted the claimant’s motion to reverse and remanded for further administrative proceedings.  The court noted that the ALJ placed “significant weight” on the opinion of one particular doctor, but that the critical part of the doctor’s report was missing from the administrative record.  In the absence of that doctor’s functional assessment of the claimant, the record lacked significant evidence to support the ALJ’s residual functional capacity assessment, which in turn undermined the ultimate conclusion that the claimant was not disabled.  The court additionally found, given the undisputed evidence of the claimant’s significant mental impairments, that the ALJ inappropriately relied on the Medical-Vocational Guidelines to carry the burden of showing that jobs exist which the claimant can perform. 

                17 pages.  Judge Joseph A. DiClerico, Jr.




12/1/06  Travel Sentry, Inc. v. David Tropp and Safe Skies, LLC

Civil. No. 06-cv-118-JD, Opinion No. 2006 DNH 135


Travel Sentry filed a declaratory judgment action seeking declarations of invalidity and non-infringement of patents belonging to inventor David Tropp.  Tropp moved to dismiss the action for lack of personal jurisdiction, and his company, Safe Skies, moved to dismiss for lack of subject matter jurisdiction.  The court found that Travel Sentry had failed to establish that Safe Skies had any ownership interest in the patents.  Because Safe Skies accordingly lacked standing to sue Travel Sentry, there could be no subject matter jurisdiction for a declaratory judgment action against Safe Skies.  The court additionally found that Travel Sentry failed to carry its burden of establishing that Tropp had sufficient contacts in New Hampshire to support exercising personal jurisdiction.  Accordingly, the case was dismissed. 

                14 pages.  Judge Joseph A. DiClerico, Jr.

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