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Bar News - March 23, 2007


US District Court Decision Listing – February 2007

 

* Published

 

BANKRUPTCY

 

2/28/07 Georges v. Exceptional Properties

Civil No. 05-cv-322-SM, Opinion No. 2007 DNH 026

 

Debtor appealed the bankruptcy court’s determination that, among other things, he owes more than $360,000 to an unsecured creditor and that debt is excepted from discharge.  After carefully reviewing the submissions by the parties, as well as the transcript of the four-day trial held before the bankruptcy court, the court concluded that the bankruptcy court’s factual findings, many of which turned on assessing the credibility of various witnesses, were not clearly erroneous (with one exception).  The court also held that, in light of those factual findings, the bankruptcy court’s legal conclusions were not incorrect, inconsistent, or unsupported by the factual record.  Accordingly, the court affirmed the majority of the bankruptcy court’s decision and remanded a small portion (the debtor’s counterclaim against the creditor for $25,000) for further consideration. 

23 pages.  Chief Judge Steven McAuliffe.

 

CLASS ACTIONS

 

2/28/07 Terry v. Chicago Title, et al.

Civil No. 06-cv-288-SM, Opinion No. 2007 DNH 025

 

After plaintiffs filed this class action suit in state court, defendant removed it to federal court, invoking the provisions of the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d(2)(A).  Plaintiffs then moved to remand, asserting that defendant had failed to demonstrate that the amount in controversy likely exceeded $5,000,000.  Defendant objected, asserting that plaintiffs bore the burden of demonstrating that the amount in controversy did not exceed $5,000,000.  The court concluded that, despite some commentary in the legislative history suggesting the contrary, CAFA’s terms did not alter the traditional legal principle that the party invoking the court’s subject matter jurisdiction bears the burden of demonstrating that jurisdiction exists.  And, because defendant acknowledged that it could not carry that burden, the court remanded the proceedings to state court.  9 pages.  Chief Judge Steven J. McAuliffe. 

 

EMPLOYMENT (ERISA)

 

2/7/07   Hopper v. Standard Insurance Company, et al.

Civil No. 06-cv-10-SM, Opinion No. 2007 DNH 017

 

Plaintiff brought suit against his former employer, its insurance broker, and the insurer that underwrote the employer’s employee welfare benefit plan alleging that he relied, to his detriment, upon incorrect representations made by the defendants regarding the scope of coverage available under the employer’s group disability insurance plan.  Specifically, plaintiff alleged negligent and fraudulent misrepresentation, breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, respondeat superior, negligent supervision, and violations of the New Hampshire Consumer Protection Act.  Both the insurer and the broker moved to dismiss.  The court granted the insurance company’s motion because the claims against it were preempted by ERISA.  The court also dismissed contract-related claims against the broker, explaining that there was no contractual relationship between it and the plaintiff.  The court also dismissed plaintiff’s Consumer Protection Act claim against the broker because the insurance industry is specifically exempted from liability under that statute.  22 pages.  Chief Judge Steven J. McAuliffe. 

 

2/7/07   Hopper v. Standard Insurance Company, et al.

Civil No. 06-cv-10-SM, Opinion No. 2007 DNH 016

 

Plaintiff brought suit against his former employer, its insurance broker, and the insurer that underwrote the employer’s employee welfare benefit plan alleging that he relied, to his detriment, upon incorrect representations made by the defendants regarding the scope of coverage available under the employer’s group disability insurance plan.  The employer filed cross-claims against the insurance company and broker for negligence, negligent misrepresentation, and promissory estoppel, and also sought indemnification and contribution from the other defendants.  Both the insurer and the broker moved for summary judgment.  The court granted the insurance company’s motion, because the claims against it were preempted by ERISA.  The court denied the broker’s motion because the conduct about which plaintiff complained related only to the sales and marketing of benefit plans and insurance policies and the broker did not determine coverage eligibility, making it insufficiently “related” to an ERISA plan to justify preemption of claims arising from such conduct.  7 pages.  Chief Judge Steven J. McAuliffe.

 

2/20/07 Laborer’s District Council Pension v. Regan.

Civil No. 05-cv-144-SM, Opinion No. 2007 DNH 022

 

Plaintiff, a pension fund, brought suit against one of its beneficiaries to recover erroneous benefit payments.  Plaintiff moved for summary judgment, asserting that the overpayment of benefits was undisputed.  Defendant objected, challenging the plaintiff’s right to equitable relief and arguing that defendant reasonably believed that he was due the money that plaintiff sent.  The court denied summary judgment, concluding that there were unresolved factual questions regarding the reasonableness of defendant’s belief that he was entitled to the erroneous payments he received.  11 pages.  Chief Judge Steven J. McAuliffe.

 

HABEAS CORPUS

 

2/8/07   Lopez v. United States

Civil No. 06-cv-4-SM, Opinion No. 2007 DNH 018

 

After the court denied petitioner’s motion for habeas corpus relief, and the court of appeals denied his request for a certificate of appealability, petitioner sought relief pursuant to Fed. R. Civ. P. 60(b).  But, because the two issues petitioner raised in his motion addressed the constitutionality of his underlying conviction, rather than any deficiencies in the court’s denial of his initial habeas petition, the court held that it was required to treat the motion as a second or successive petition, over which it lacked jurisdiction.  Accordingly, the court transferred the matter to the Court of Appeals for the First Circuit for consideration of petitioner’s implicit request for an order authorizing a second or successive habeas petition.  4 pages.  Chief Judge Steven J. McAuliffe.

 

2/23/07 Allen v. United States

Civil No. 06-cv-277-SM, Opinion No. 2007 DNH 023

 

Petitioner sought habeas corpus relief, alleging that the government had breached his plea agreement.  Specifically, he claimed he was improperly being denied credit against his federal sentence for pre-trial confinement he served on an unrelated state sentence.  Because his plea agreement provided that petitioner was to serve his federal sentence concurrently with his state sentence, petitioner claimed he was also entitled to credit for pre-trial confinement served on the state sentence.  The court concluded that the petition failed to set forth any basis for relief and, therefore, dismissed it.  But, recognizing that plaintiff is pro se, the court allowed him 30 days within which to file an amended petition which specifically (and in detail) sets forth the grounds on which to claim the only relief that might be available to him — withdrawal of his guilty plea.  18 pages.  Chief Judge Steven J. McAuliffe. 

 

JURISDICTION (PERSONAL)

 

2/7/07   Multi Technology Industrial v.

                        Huhtamaki Forchheim

Civil No. 05-cv-403-SM, Opinion No. 2007 DNH 015

 

Plaintiff brought a declaratory judgment action seeking declarations of non-infringement of a patent held by defendant.  Defendant moved to dismiss on grounds that the court lacked personal jurisdiction over it and asserting that venue in this district is improper.  The court noted that while defendant’s corporate relatives had conducted business in New Hampshire, defendant itself lacked sufficient contacts with the state to justify exercise of personal jurisdiction.  Accordingly, the court granted defendant’s motion and closed the case.  12 pages.  Chief Judge Steven J. McAuliffe.

 

SOCIAL SECURITY

 

2/13/07 Ramsey v. SSA

Civil No. 06-cv-195-SM, Opinion No. 2007 DNH 021

 

Claimant moved the court to reverse the decision of an Administrative Law Judge (“ALJ”) denying his claim for both social security disability benefits and supplemental security income.  The court denied that motion, concluding that although claimant suffers from a seizure disorder (which is exacerbated by his use of both alcohol and illicit drugs), there was substantial evidence in the record to support the ALJ’s conclusion that claimant was not precluded from performing any work in the national economy.  Accordingly, the court affirmed the ALJ’s determination that claimant was not “disabled,” as that term is used in the Social Security Act.  21 pages.  Chief Judge Steven J. McAuliffe.

 

STAY PENDING LEGISLATIVE ACTION

 

2/1/07   Planned Parenthood of Northern New England, et al. v. New Hampshire Attorney General

Civil No. 03-cv-491-JD; Opinion No. 2007 DNH 014

 

At a hearing with both parties, the court took judicial notice that House Bill 184, an Act repealing the Parental Notification Law that is the subject of the present lawsuit, is pending in the New Hampshire House of Representatives.  The court noted that House Bill 184 could have the effect of mooting the lawsuit if passed as proposed, or could, if amended, significantly alter any analysis of the law.  In the interest of deference to the New Hampshire legislature, and with the assent of both parties, the court ordered a temporary stay of the litigation during the legislature’s active consideration of House Bill 184.  The permanent injunction remains in effect.  2 pages.  Judge Joseph A. DiClerico, Jr.

 

TAX

 

2/9/07   Richard M. Nault v. United States of America

Civil No. 04-cv-479-PB, Opinion No. 2007 DNH 020

 

Richard Nault sued the United States to recover income tax refunds for several tax years.  In the suit, Nault claimed that a Tax Court’s 2001 disallowance of certain partnership deductions resulted in a restoration of his basis in those partnerships by corresponding amounts.  Both parties moved for summary judgment, and the United States’ motion was granted.  In granting the motion, the court held that the 2001 Tax Court decisions determined that the disallowed deductions were attributable to transactions that lacked economic substance, and that those decisions were binding on Nault in the current proceeding pursuant to the Tax Equity and Fiscal Responsibility Act of 1992.  Thus, the court held, Nault had no claim to loss deductions resulting from a restored basis because transactions lacking economic substance cannot give rise to losses under 26 U.S.C. § 165(c).  14 pages.  Judge Paul Barbadoro.

 

 

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