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Bar News - June 22, 2007

US District Court Listing – May 2007


* Published




5/29/07 Costa Precision v. Farris, et al.

Civil No. 06-cv-332-SM, Opinion No. 2007 DNH 070


Costa Precision sued its former general manager, Edward Farris, and his company, Matrix Aerospace, Inc., alleging violations of the Computer Fraud and Abuse Act, the Stored Communications Act, and asserting a number of discrete common law claims, all arising out of Farris’s prior employment with Costa.  Defendants asserted counterclaims against plaintiff alleging wrongful discharge, interference with advantageous business relationships, defamation, and abuse of process.  The court dismissed defendants’ counterclaims without prejudice because they failed to allege facts that, if true, would support such claims.  The court also denied defendants’ motion to amend the wrongful discharge counterclaim for the same reason, namely, because the proposed amended claim failed to allege conduct that, if true, would support such a claim for wrongful discharge.  But, given the early stage of litigation and the absence of prejudice to plaintiff, the court allowed defendants thirty days to reconsider the operative facts, and, if appropriate, to file an amended pleading. 

            14 pages.  Chief Judge Steven J. McAuliffe.




5/17/07 Peterson v. Eileen Fox, Clerk,     NH Supreme Court, et al.

Civil No. 06-cv-424-SM, Opinion No. 2007 DNH 067


When the Brentwood Family Court denied plaintiff visitation with his minor son, plaintiff appealed that order to the New Hampshire Supreme Court.  As a condition of pursuing that appeal, however, the court ordered him to provide transcripts of the lower court proceedings, at his own expense.  Plaintiff, who is currently incarcerated, says he is indigent and his motion for waiver of the transcript fees was denied.  He then filed this federal action seeking relief.  Plaintiff’s complaint raises important issues involving due process and parents’ fundamental liberty interests in the care, custody, and control of their children.  Nevertheless, because plaintiff is currently pursuing an appeal of the visitation order in the New Hampshire Supreme Court, and because that court is fully capable of addressing and resolving his federal constitutional claims, the district court concluded that it must abstain under Younger v. Harris 401 U.S. 37 (1971). 

            7 pages.  Chief Judge Steven J. McAuliffe.




5/22/07 Parker v. MVM, Inc.

Civil No. 05-cv-380-SM, Opinion No. 2007 DNH 068


Plaintiff brought suit against his former employer, claiming its decision to transfer him amounted to a constructive discharge - one he believed was in breach of his employment contract, contrary to public policy, and in violation of both state and federal anti-discrimination statutes. The court granted defendant’s motion for summary judgment, concluding that: (1) as an employee-at-will, plaintiff had no cause of action for breach of contract; (2) because he failed to allege that he was discharged for having engaged in conduct public policy would encourage (or for refusing to engage in conduct that public policy would condemn), plaintiff had no claim for wrongful termination; and, finally, (3) as to his age discrimination claims, plaintiff failed to point to sufficient evidence to rebut his former employer’s asserted, non-discriminatory basis for the alleged constructive discharge (i.e., transfer). 

            24 pages.  Chief Judge Steven J. McAuliffe.




5/29/07 John R. Crooker v. Anheuser-Busch, Inc.

Civil No. 05-cv-008-JD, Opinion No. 2007 DNH 069


John Crooker sought retiree medical benefits from his former employer, Anheuser-Busch, Inc., under the Employee Retirement Income Security Act, which were denied.  The parties agreed that the Plan conferred discretionary authority on the administrator, making the decision subject to deferential review, but Crooker asserted that a conflict of interest required a heightened standard.  The court concluded that Crooker had not shown a conflict of interest and applied the deferential standard.  On the merits of the decision, the court held that Anheuser Busch reasonably determined that Crooker was not eligible for retiree benefits because he was receiving workers’ compensation and not working when he retired and none of the leave of absence rules applied to him.  The court granted Anheuser Busch’s motion for judgment on the administrative record. 

            12 pages.  Judge Joseph A. DiClerico, Jr.




5/3/07   James and Sue Scott and Stephen and   Ellen St. Louis v. First American Title Company

Civil No. 06-cv-286-JD, Opinion No. 2007 DNH 062


The plaintiffs filed a putative class action, alleging claims that the defendant breached the duty of good faith and fair dealing and was unjustly enriched by selling them mortgage insurance at the standard rate rather than the less expensive reissue rate.  The defendant moved to dismiss the claims on the ground that the defendant’s agents were necessary and indispensable parties.  The court concluded that the agents were not necessary parties, although they were involved in the transactions at issue in the case, because through discovery and vicarious liability complete relief could be granted without them.  The motion to dismiss was denied.

9 pages.  Judge Joseph A. DiClerico, Jr.




5/14/07 Robert and Priscilla Plumb v. Robert Lavery and New Hampshire CardiologyConsultants, P.C.

Civil No. 06-cv-278-JD, Opinion No. 2007 DNH 066


The defendants moved to have the plaintiffs’ medical malpractice claim referred to a screening panel pursuant to New Hampshire Revised Statutes Annotated Chapter 519-B.  The parties agreed that New Hampshire law governed, that Chapter 519-B was mandatory for all medical malpractice claims brought under New Hampshire law, and neither party requested certification to the New Hampshire Supreme Court.  In opposing referral, the plaintiffs argued that Chapter 519-B does not apply in federal court under the Erie doctrine because it provides only a procedure not substantive law, that applying it in federal court would deprive the court of jurisdiction, and that it undermines the federal jury system.  The court noted that the plaintiffs’ arguments were considered and rejected by the First Circuit in Feinstein v. Mass. Gen. Hosp., 643 F.3d 880, 885-87 (1st Cir. 1981), which, absent a basis for distinguishing this case, remains binding precedent in this district.  Therefore, the court granted the defendants’ motion. 

5 pages.  Judge Joseph A. DiClerico, Jr.





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