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Bar News - May 18, 2007


US District Court Listing – April 2007

* Published

 

CRIMINAL CASE

 

4/18/07 United States v. Brown

Criminal No. 06-cr-71-1-2-SM, Opinion No. 2007 DNH 053

 

Defendants filed nearly identical motions seeking transcripts, prepared at government expense, of their criminal trials and all related proceedings.  The financial affidavits defendants submitted in support of their motions were, however, facially incomplete, omitting such things as vehicles, equipment, and defendants’ beneficial interests in trusts (which defendants previously acknowledged hold title to real estate they have publically valued at more than one million dollars).  Accordingly, the court denied defendants’ motions, without prejudice to refiling them with proper support.  6 pages.  Chief Judge Steven J. McAuliffe.

 

DISCOVERY

 

4/13/07 Walden v. Nashua, NH, et al.

Civil No. 05-cv-455-SM, Opinion No. 2007 DNH 050

 

Peter Walden, an inmate at the Northern New Hampshire Correctional Facility in Berlin, sued the City of Nashua, the Nashua police chief, and several Nashua police officers, alleging violations of his federal civil rights, as well as related state claims.  Despite numerous opportunities to do so, Walden failed to comply with defendants’ reasonable discovery requests and a subsequent order of this court compelling him to do so.  Defendants moved to dismiss all of the claims against them, to which Walden did not respond.  The court granted defendants’ motion, finding that Walden’s disregard for the discovery process and the orders of the court, along with his general failure to prosecute the case, justified dismissal.  6 pages.  Chief Judge Steven J. McAuliffe

 

EDUCATION

 

4/23/07 Lessard v. Wilton-Lyndeborough Coop. School, et al.

Civil No. 05-cv-192-SM, Opinion No. 2007 DNH 057

 

Plaintiffs appealed an administrative decision issued by the New Hampshire Department of Education upholding the appropriateness of the 2004-05 individualized education program (“IEP”) prepared for their daughter, S.L.  After reviewing the voluminous record, which included more than 3,100 pages in nine volumes, the court concluded that the IEP at issue was reasonably calculated to provide S.L. with educational benefit.  The court also held that, despite plaintiffs’ claims to the contrary, they were not denied a meaningful opportunity to participate in the formulation of S.L.’s IEP.  The State’s administrative decision was, therefore, affirmed.  28 pages.  Chief Judge Steven J. McAuliffe.

 

FIRST AMENDMENT

 

* 4/30/06           IMS Health Incorporated, et. al. v. Kelly Ayotte, as

Attorney General of the State of New Hampshire

Civil No. 06-cv-280-PB, Opinion No. 2007 DNH 061

 

Two pharmaceutical data mining companies, IMS Health Incorporated and Verispan, LLC, brought this First Amendment challenge to a recently enacted state law that bars pharmacies, insurance companies, and similar entities from transferring or using prescriber-identifiable data for certain commercial purposes.  N.H. Rev. Stat. Ann. §§ 318:47-f, 318;47-g, 318-B:12(IV)(2006) (the “Prescription Information Law”).  In this Memorandum and Order, the court determined that the Prescription Information Law violates the First Amendment because it restricts constitutionally protected commercial speech without directly serving the State’s substantial interests in improving health care and reducing health care costs, and because alternatives exist that would achieve the State’s interests as well or better without restricting speech.  54 pages.  Judge Paul Barbadoro.

 

JURISDICTION (SUBJECT MATTER)

 

4/17/07 Pop Warner v. NH Youth Football, et al.

Civil No. 06-cv-98-SM, Opinion No. 2007 DNH 051

 

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.  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.  Defendants brought counterclaims against Barbara Doughty and Jason Patch, and third-party claims against New Hampshire Pop Warner (“NHPW”), the newly formed and unincorporated association created to promote Pop Warner football, alleging conspiracy, fraud, unfair and deceptive practices, and trade name infringement.  Defendants also brought third-party claims against T.D. BankNorth, alleging conversion, wrongful dishonor, negligence, and breach of contract.  The court previously declined to exercise supplemental jurisdiction over all but one of the state claims because they were insufficiently related to the federal trademark claims to warrant the exercise of supplemental jurisdiction.  Similarly, the court previously 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.  In this order, the court declined to exercise supplemental jurisdiction over all of defendants’ counterclaims and third-party claims except the state trade name infringement claim, explaining that the charitable trust, financial misappropriation, and banking issues raised in defendants’ claims are wholly distinct from the federal trademark issues that underlie the plaintiffs’ remaining claims.  7 pages.  Chief Judge Steven J. McAuliffe.

 

REMOVAL (REMAND)

 

4/27/07 Baldi v. Brown, et al.

Civil No. 07-cv-24-SM, Opinion No. 2007 DNH 060

 

In response to the an earlier order in this case, plaintiff filed a pleading which, among other things, argued that removal of his state case was improper because not all of the defendants had consented, thereby violating the rule of unanimity.  The State of New Hampshire, one of the defendants, affirmatively opposed removal, but because the state enjoys Eleventh Amendment immunity in federal court, its consent is not required to properly effect removal.  The court noted that while it was not clear from the complaint, defendant William McGraw, Clerk of the New Hampshire Superior Court for Merrimack County, may have been sued in his individual, as well as official, capacity.  Because the New Hampshire Attorney General, as counsel to McGraw, affirmatively opposed removal, and, under applicable First Circuit precedent, the ambiguous complaint was properly construed as claiming against McGraw as an individual, and because McGraw’s consent to removal was required but not given, the court remanded the case to the New Hampshire Superior Court for failure to meet the unanimity rule.  5 pages.  Chief Judge Steven J. McAuliffe.

 

 

 

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