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Bar News - April 20, 2007

US District Court Listing – March 2007


* Published




3/15/07 EnergyNorth Natural Gas, Inc. v. Century Indemnity Company

Civil No. 99-cv-049-JD, Opinion No. 2007 DNH 032


After the court entered an amended judgment to include the award of attorneys’ fees and costs to EnergyNorth, Century filed a motion for relief from judgment, arguing that it was liable for only half of the amount of attorneys’ fees and costs.  Century asserted that another insurer, which previously reached a settlement with EnergyNorth, was liable for the other half of the award.  The court concluded that the general rule of joint and several liability applied in the context of an award of attorneys’ fees and costs and that no other legal or equitable principles required a different result.  The motion for relief from judgment was denied.  10 pages.  Judge Joseph A. DiClerico, Jr. 




3/29/07 In Re: Michael S. Askenaizer

Civil No. 06-cv-123-SM, Opinion No. 2007 DNH 041


Trustee appealed the bankruptcy court’s determination that two preferential payments made to a creditor were not avoidable because, the bankruptcy judge reasoned, the creditor would have received the same amount in a chapter 7 liquidation proceeding.  Creditor cross-appealed the bankruptcy court’s refusal to impose sanctions on the trustee and his legal counsel.  After carefully reviewing the submissions by the parties, and the bankruptcy court record, the court concluded that the bankruptcy court erred in applying the relevant law to the alleged preference payments in that the applicable standard concerns have obtained full payment whether the preferential payee would have obtained full payment from the bankruptcy estate had it not obtained payment from the debtor, and not simply whether the creditor would have been paid in full from someone.  Accordingly, the court vacated and remanded that portion of the case to the bankruptcy court.  The court affirmed the bankruptcy court’s decision not to impose sanctions on the trustee and his counsel.  12 pages.  Chief Judge Steven J. McAuliffe.


3/30/07 Desmond v. Notinger, Ch. 7 Trustee, & ASR Acquisition Corp.

Civil No. 06-cv-264-PB, Opinion No. 2007 DNH 043


Bob Desmond appealed numerous Orders of the United States Bankruptcy Court for the District of New Hampshire arising from an adversary proceeding related to his Chapter 7 bankruptcy.  Steven Notinger, the Chapter 7 Trustee, and ASR Acquisition Corp. (collectively “the Appellees”) moved to dismiss the appeal as untimely and for lack of standing.  The court first dismissed the majority of Desmond’s claims as untimely.  It then determined that Desmond had standing as an aggrieved person to appeal the Bankruptcy Court order approving a settlement between the Trustee and a creditor.  Accordingly, Appellees’ motion was granted in part and denied in part.  10 pages.  Judge Paul Barbadoro.




3/12/07 Abbott v. Salem, NH

Civil No. 05-cv-127-SM, Opinion No. 2007 DNH 030


The plaintiff, who is hearing impaired, sued several parties asserting claims under the Americans with Disabilities Act based upon her removal from a shopping mall by security guards and local police officers.  The ADA claim against the mall owner, asserted under Title III, was dismissed because Title III does not provide for the relief sought, i.e., money damages.  The plaintiff’s assault, unlawful arrest, and false imprisonment claims were also dismissed because the security personnel involved in the incident were independent contractors of the mall owner and, therefore, the municipality was not vicariously liable on a theory of respondeat superior.  10 pages.  Chief Judge Steven J. McAuliffe.




3/21/07 MACTEC Engineering & Consulting, Inc. v. OneBeacon InsuranceCompany

Civil No. 06-cv-466-JD, Op. No. 2007 DNH 034


MACTEC filed an emergency motion for a partial stay of discovery and moved to dismiss OneBeacon’s counterclaim.  Although both parties noted that the law of New Hampshire and Massachusetts were potentially applicable, neither party demonstrated that an actual conflict existed between the laws of those states.  As a result, the court applied New Hampshire law.  The court concluded that OneBeacon was not limited to asserting only affirmative defenses against MACTEC’s declaratory judgment action and also that the duty to indemnify could be determined based on the terms of the insurance policy before the underlying arbitration proceeding terminated.  The motion to dismiss was denied.  Because MACTEC’s emergency motion to stay discovery was premised on dismissal of OneBeacon’s counterclaim, that motion was also denied. 

            6 pages.  Judge Joseph A. DiClerico, Jr.




3/7/07   In Re Tyco International Ltd. MDL

Case No. 02-md-1335-PB, Opinion No. 2007 DNH 028


Plaintiffs moved to compel Defendant Tyco International Ltd. to produce drafts of two Form 8-K related filings and certain underlying documents, arguing that Tyco waived its attorney-client privilege by filing the forms with the Securities and Exchange Commission (SEC).  Tyco responded with a motion for a protective order covering the same documents.  The court denied the motion to compel and granted the motion for protective order, reasoning that Tyco did not waive any privilege claim it might otherwise have had simply by filing the forms with the SEC. 

            5 pages.  Judge Paul Barbadoro.




3/27/07 Thomas M. Olsen v. Town of Loudon

Civil No. 06-cv-477-JD, Op. No. 2007 DNH 036


Thomas Olsen brought suit under the Fair Labor Standards Act against his former employer, Loudon, alleging that he had not been paid compensation to which he was entitled while working as a Loudon police officer and that Loudon had not maintained accurate records of his employment.  Loudon moved to dismiss that part of Olsen’s claim for compensation which arose from the time he spent at the police academy, asserting that a Fair Labor Standards Act regulation, 29 C.F.R. § 553.226(b)(2), precluded payment for time beyond forty hours each week spent in required training.  The court agreed with Olsen that a different regulation, § 553.226(c), governed his claim for compensation for time spent at the police academy, and denied the motion.  5 pages.  Judge Joseph A. DiClerico, Jr.




3/30/07 Presstek, Inc. v. Creo, Inc. & Creo Americas, Inc.

Civil No. 05-cv-65-PB, Opinion No. 2007 DNH 044


Creo, Inc. and Creo Americas, Inc. (collectively “Creo”) moved to strike supplemental expert disclosures filed by Presstek, Inc. on the ground that they were filed after the parties’ agreed-upon deadline for expert disclosures.  Presstek denied that the disclosures were late and alternatively claimed that they should not be stricken because it was justified in making the disclosures when it did, Creo was not unfairly prejudiced by the late disclosures and, in any event, a less drastic sanction is all that is necessary under the circumstances.  Construing the parties agreed-to discovery plan and relevant Federal Rules of Civil Procedure, the court determined that (a) the supplemental report was not timely under the discovery plan or Rule 26(a)(2), (b) only one small portion of the late report qualified as a supplement under Rule 26(e)(1), and (c) exclusion of the improper portions of the report was the proper remedy pursuant to Rule 37(c).  21 pages.  Judge Paul Barbadoro.




3/12/07 Goss v. MAN Roland, et al

Civil No. 03-cv-513-SM, Opinion No. 2007 DNH 029


Patent infringement defendant counterclaimed, alleging violations of the Sherman Antitrust Act resulting from anticompetitive conduct by engaging in Walker Process fraud and sham litigation. The court granted summary judgment in favor of the counterclaim defendant because the allegedly fraudulent patents were unrelated to the patents in suit and thus could not form the basis of a Walker Process or sham litigation claim.  7 pages.  Chief Judge Steven J. McAuliffe.


3/28/07 Mangosoft v. Oracle Corp.

Civil No. 02-cv-545-SM, Opinion No. 2007 DNH 040


After conducting a Markman hearing and construing several disputed terms in the subject patent, the court granted defendant’s motion for summary judgment, concluding that it did not, as a matter of law, infringe plaintiff’s patent.  Subsequently, plaintiff moved the court to dismiss defendant’s invalidity counterclaims, without prejudice.  The court granted that motion, concluding that judicial resources, as well as those of the parties, would be used most efficiently if, in the exercise of its discretion, it declined to exercise jurisdiction over defendant’s counterclaims for declaratory judgment.  By so doing, the court allowed the parties to immediately appeal its construction of the disputed terms in the patent and eliminated any possibility that it might rule on defendant’s counterclaim based upon a disputed interpretation of that patent.  8 pages.  Chief Judge Steven J. McAuliffe.


3/30/07 Presstek, Inc. v. Creo, Inc. & Creo Americas, Inc.

Civil No. 05-cv-65-PB, Opinion No. 2007 DNH 045


Presstek, Inc., owner of U.S. Patent No. 5,353,705 (filed Sept. 22, 1993) (“the ‘705 Patent”), sued Creo, Inc. and Creo Americas, Inc. (collectively “Creo”), claiming that Creo’s lithographic printing plate, the Clarus WL, infringes its patent.  Creo moveD for summary judgment on the infringement claim based largely on its interpretation of several disputed claim terms.  In this Memorandum and Order, the court construed the relevant disputed terms (“layer” and “being ablated only partially”) and denied Creo’s motion for summary judgment because presented evidence sufficient to satisfy the elements of its claim.  26 pages.  Judge Paul Barbadoro.  


3/30/07 PowerOasis, Inc. and PowerOasis Networks, LLC v. T-Mobile USA, Inc.

Case No. 05-cv-45-PB, Opinion No. 2007 DNH 042


PowerOasis sued T-Mobile for patent infringement, claiming that T-Mobile’s “HotSpot Network” infringed several claims in two of its patents.  T-Mobile responded with a summary judgment motion arguing that the claims in suit were invalid.  The court granted T-Mobile’s motion, reasoning that the claims PowerOasis relied on were anticipated by a wireless network operated by T-Mobile’s predecessor. 28 pages.  Judge Paul Barbadoro.




3/1/07   Pop Warner Little Scholars, Inc. v. NH Youth Football

Civil No. 06-cv-98-SM, Opinion No. 2007 DNH 027


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 a host of state claims, including common law trademark infringement and fraudulent registration of a trade name, breach of fiduciary duty, ultra vires conduct, breach of contract, and unfair and deceptive practices.  Plaintiffs also sought a declaratory judgment that NHYF lacked the authority to change its articles of incorporation and that its use of NHYF funds for anything other than the promotion of Pop Warner-affiliated football was likewise unlawful.  The court declined to exercise supplemental jurisdiction over the breach of fiduciary duty, ultra vires, breach of contract, and unfair and deceptive practices claims because they were insufficiently related to the federal trademark claims to warrant the exercise of federal jurisdiction.  Similarly, the court declined to exercise jurisdiction over plaintiffs’ request for a declaratory judgment because adjudication of that claim would require factual and legal inquiries wholly distinct from those related to the operative facts underlying the federal trademark issues.  11 pages.  Chief Judge Steven J. McAuliffe.




3/27/07 Kevin D. Hall v. Cheshire County Department of    Corrections, et al.

Civil No. 05-cv-381-JD, Op. No. 2007 DNH 037


Kevin Hall, proceeding pro se and in forma pauperis, brought civil rights claims against the Superintendent of the Cheshire County Department of Corrections, and several other employees, alleging denial of medical care and discrimination against him while he was incarcerated there.  Hall’s claims arose from injuries he sustained when he destroyed and ate parts of his cell.  The defendants moved for summary judgment on the grounds that Hall failed to exhaust administrative remedies as required under 42 U.S.C. § 1997e(a) and that he could not prove his claims.  The court granted summary judgment in the defendants’ favor, concluding that Hall failed to pursue the available grievance procedure before bringing suit so that the exhaustion requirement was not satisfied.  5 pages.  Judge Joseph A. DiClerico, Jr.

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