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Bar News - July 20, 2007

US District Court Listing – June 2007


* Published




6/25/07 Amatucci v. Hamilton, et al.

Civil No. 05-cv-259-SM, Opinion No. 2007 DNH 080


Pro se plaintiff brought suit against two police officers alleging, among other things, that they violated her Fourth Amendment rights when they obtained arrest warrants against her by failing to provide exculpatory evidence to the issuing judge.  Although the court noted that such conduct, if true, might amount to a Fourth Amendment violation, the record plainly demonstrated that the officers provided all relevant facts to the judge when they sought arrest warrants against plaintiff in 2002 and 2003.  Accordingly, the court granted defendants’ motion for summary judgment.  17 pages.  Chief Judge Steven J. McAuliffe.




6/25/07 Naser Jewelers, Inc. v. Concord, NH

Civil No. 06-cv-400-SM, Opinion No. 2007 DNH 081


Plaintiff, a jewelry store, challenged a Concord ordinance that prohibits electronic message center signs and other signs that move or create the illusion of movement, on grounds that it unconstitutionally burdens the right to free speech.  The court denied plaintiff’s request for a preliminary injunction because plaintiff failed to demonstrate it was likely to succeed on the merits.  Specifically, the court explained that because the ordinance is facially content neutral, it is subject to an “intermediate scrutiny” test to survive a constitutional challenge.  Applying that test, the court found that Concord’s governmental interests in promoting traffic safety and aesthetic values are substantial, and that the ordinance is narrowly tailored to achieve those objectives.  Moreover, the court noted that the ordinance leaves open ample reasonable, alternative channels for communication.  12 pages.  Chief Judge Steven J. McAuliffe.




6/14/07 Presstek, Inc. v. Creo, Inc. & Creo Americas, Inc.

Civil No. 05-cv-65-PB, Opinion No. 2007 DNH 78


Creo, Inc. and Creo Americas, Inc. (collectively “Creo”) moved for Leave to File a Motion to Strike Expert Opinions and Evidence pursuant to Federal Rules of Evidence 104(a) and 702.  Defendant Presstek argued that Creo had waived its right to file such a motion because it failed to do so by the deadline established in the Discovery Plan.  Because Creo had presented its challenge to Presstek’s anticipated expert testimony in its summary judgment reply brief, well before the deadline for such challenges established by the Discovery Plan, the court concluded that Creo had substantially complied with its discovery obligations and granted the motion.  6 pages.  Judge Paul Barbadoro. 




6/26/07 Joseph Byrne v. Brunswick Corporation, et al.

Civil No. 07-cv-43-JD, Opinion No. 2007 DNH 082


After his high performance power boat was destroyed by fire on Lake Winnipesaukee, Joseph Byrne sought to recover from those who manufactured the boat’s engines and accessories and those who were involved in selling and servicing the boat.  Frank Brancaccio, d/b/a Frank’s Marine, who operated his business in Berlin Center, Ohio, and had installed superchargers for the boat’s engines there, moved to dismiss the claims against him on the ground that personal jurisdiction was lacking.  Byrne conceded general personal jurisdiction but argued that specific personal jurisdiction existed based on Brancaccio’s knowledge of where Byrne lived, his knowledge that the boat was registered in New Hampshire, telephone calls with Byrne in New Hampshire, and mailing the invoice for the superchargers for signature to Byrne in New Hampshire.  The court concluded that those contacts did not show that Brancaccio purposefully availed himself of doing business in New Hampshire so that personal jurisdiction was lacking.  Motion to dismiss granted.  9 pages.  Judge Joseph A. DiClerico, Jr.


6/11/07 NH Youth Football & Spirit Conference et al. v. Zurich American Insurance Co. and Gagliardi Insurance Services, Inc. v. J.R. Olsen Bonds & Insurance Brokers, Inc.

Civil No. 06-cv-342-PB, Opinion No. 2007 DNH 074


In this insurance contract case, Third-Party Defendant J.R. Olsen Bonds & Insurance Brokers, Inc.’s (“J.R. Olsen”) motion to dismiss for lack of personal jurisdiction was granted.  In granting the motion, the court held that third-party plaintiff Gagliardi Insurance Services, Inc. (“GIS”) failed to demonstrate that a sufficient nexus existed between its causes of action and J.R. Olsen’s forum state activities.  Accordingly, the court held, GIS failed to satisfy the relatedness requirement of the specific personal jurisdiction test.  15 pages.  Judge Paul Barbadoro.




6/11/07 In re Tyco International, Ltd., Multidistrict

                        Litigation (New Jersey Action)

MDL Docket No. 02-1335-B, Opinion No. 2007 DNH 072


In a private securities action brought on behalf of numerous plaintiffs against Tyco International, Ltd. and some of its former officers, directors, and accountants, involving alleged federal securities violations, common law misrepresentation and state statutory claims, all defendants except one moved to dismiss.  Defendants’ principal argument was that the fraud underlying the complaint had not been sufficiently pled, requiring most of the claims to be dismissed.  Parsing the more then 1300 paragraph complaint, the court analyzed each challenged count and dismissed the following: 

1)                   All Exchange Act and Securities Act claims (Counts 1-7) against all defendants to the extent that they are based on the Raychem Claims transaction.

2)                   All Exchange Act and Securities Act claims (Counts 1 and 5) against PwC and PwC-Bermuda to the extent that they are based on audit reports incorporated into Tyco’s 10-Ks filed on December 24, 1997 and December 10, 1998 or its 10-Q filed on December 21, 1997.

3)                   All claims against defendant Lane to the extent that they accrued before April 19, 2000.

4)                   Plaintiffs’ § 10(b) claim (Count 1) against PwC-Bermuda.

5)                   Plaintiffs’ § 20A claim (Count 3) against Fort.

6)                   Plaintiffs’ claims for violations of § 14(a) and Rule 14a-9 (Count 4) against all defendants.

7)                   Plaintiffs’ common law claims (Counts 8-13) against all defendants.

8)                   Plaintiffs’ NJRICO claims alleged in Counts 15, 16, 17, 22, 27, and 29. 


In all other respects, the defendants’ motions to dismiss were denied.  70 pages.  Judge Paul Barbadoro.


6/12/07 Ballard et al. v. Tyco International, Ltd. et al.

MDL Docket No. 02-1335-B, Civil No. 04-cv-1336-PB

Opinion No. 2007 DNH 073


In a private securities action against Tyco International, Ltd. and some of its former officers, directors, and accountants, brought by 33 family trusts and four individuals who acquired shares of Tyco in exchange for their stock in AMP, Inc. when the two companies merged on April 4, 1999, former director Michael A. Ashcroft moved to dismiss the federal securities and common law claims against him on the grounds that they were not pleaded with the particularity required by the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995.  After analyzing the complaint and the parties’ arguments, the court granted Ashcroft’s motion to dismiss plaintiffs’ claims under §§ 10(b) and 20(a) of the Exchange Act, § 15 of the Securities Act, and their common law fraud and negligent misrepresentation claims.  In all other respects, the motion was denied.  26 pages.  Judge Paul Barbadoro. 


6/12/07      In re Tyco International, Ltd., Multidistrict Litigation

MDL Docket No. 02-1335-B, Civil No. 03-cv-1352-PB

Opinion No. 2007 DNH 075


Lead plaintiff Mark Newby filed a motion seeking class certification in a class action lawsuit arising from a decision by Tyco International Ltd. (“Tyco”) to sell off a minority interest in one of its wholly owned subsidiaries, TyCom Ltd. (“TyCom”).  The court granted the motion over defendants arguments that Newby is not a typical or adequate class representative, or alternatively that the class should be shortened to exclude a subset of putative class members. 

The proposed class consists of all persons or entities who purchased TyCom stock, either pursuant to a July 26, 2000 Registration Statement and Prospectus for TyCom’s initial public offering or on the open market between July 26, 2000 and December 17, 2001.  11 pages.  Judge Paul Barbadoro.




6/13/07 * Davis v. USA

Civil No. 04-cv-273-SM, Opinion No. 2007 DNH 077P


Estate of deceased lottery winner brought action challenging the means by which the Internal Revenue Service valued the nine remaining lottery payments yet to be received by the estate.  The IRS asserted that the payments were properly valued by referencing the annuity tax tables in the Internal Revenue Code.  The estate, on the other hand, asserted that the value yielded by the tables was unrealistic and unreasonable, thereby justifying use of an alternate valuation method.  The court concluded that the estate failed to carry its burden of demonstrating that the tax tables yielded an unreasonable or unrealistic value and, therefore, held that, for tax purposes, the lottery winnings were properly valued by reference to the tables.  18 pages.  Chief Judge Steven J. McAuliffe.





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