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Bar News - September 7, 2007

US District Court Listing – July 2007


* Published




6/28/07 EnergyNorth Natural Gas, Inc. v. Century Indemnity Company

Civil No. 99-cv-49-JD, Opinion No. 2007 DNH 083


After an award of attorneys’ fees and costs to the plaintiff and plaintiff’s settlement with one of the defendants, the remaining defendant, Century, moved for an order to require the settling defendant to contribute to the award of fees and costs.  The contribution claim was based on N.H. Rev. Stat. Ann. § 507:7-g(I) and New Hampshire common law.  The court ruled that in the absence of an allocation under N.H. Rev. Stat. Ann. § 507:7-e(III), Century had not established a basis for statutory contribution.  Alternatively, Century argued that it was entitled to an equal contribution from the settling defendant in equity.  The court held that Liberty Mutual v. Home Ins. Co., 117 N.H. 269 (1977), did not establish a rule of equal allocation of attorneys’ fees among co-defendants.  The court held, however, that based on the co-defendant’s equal participation in all aspects of the case, through litigation of the fees and costs issue, the co-defendant should contribute equally to pay the fees and costs award.  7 pages.  Judge Joseph A. DiClerico, Jr.




7/19/07 Greenwood v. NH Public Utilities Commission

Civil No. 06-cv-270-SM, Opinion No. 2007 DNH 088


Plaintiff operates three small hydroelectric plants in New Hampshire.  Three years into his PUC-approved 30-year rate schedule, the PUC unilaterally rescinded the final ten years.  Subsequently, plaintiff sought declaratory and injunctive relief, asking the court to declare that the PUC lacked authority to act as it did.  Specifically, plaintiff asserted that federal law preempts state regulatory authorities (like the PUC) from altering or rescinding long-term rate schedules for small power producers once such schedules have been approved.  The court agreed, concluded that the PUC had acted without authority in purporting to rescind the final ten years of plaintiff’s rate schedules, and granted the requested declaratory relief.  29 pages.  Chief Judge Steven J. McAuliffe.




* 6/29/07 Samuel J. Bourne v. Town of Madison, et al.

Civil No. 05-cv-365-JD, Opinion No. 2007 DNH 084


Plaintiff sued the town of Madison and its board of selectmen alleging violations of state law and of his constitutional rights.  The plaintiff had purchased property in the town that had an easement running through it over which ran an unpaved public trail that was used in the winter by snowmobilers.  The plaintiff alleges that, prior to his purchase of the property, he had reached an agreement with the selectmen allowing him to close the trail to public traffic.  According to the plaintiff, after he attempted to enforce the agreement, the selectmen, and other town officials, conspired against him in an effort to drive him out of town.  Ruling on the defendants’ motion for summary judgment, the court held that there could be no procedural due process claim because the plaintiff had access to adequate post-deprivation remedies.  The court also granted summary judgment as to the plaintiff’s substantive due process and equal protection claims because he had failed to establish a violation of constitutional magnitude.  The court held that most of the plaintiff’s state law claims were barred by a mutual release, but denied summary judgment as to the plaintiff’s claim of tortious interference with contractual relations.  49 pages.  Judge Joseph A. DiClerico, Jr.




7/09/07 Lavasseur v. US Postal Service

Civil No. 06-cv-284-PB, Opinion No. 2007 DNH 087


Kelly Levasseur brought this action against the United States Postal Service (“USPS”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, asserting that the USPS, acting through its employee David McCloskey, stole or intentionally hid his political campaign flyers in order to prevent the flyers from being delivered to voters before the November 2005 election in which Levasseur was running for public office.  The USPS moved to dismiss the complaint on the grounds that this court lacks subject matter jurisdiction to hear the claims asserted against it under the so-called “Postal Matter Exception” to the FTCA, which deprives federal courts of jurisdiction to hear cases involving the loss, miscarriage or negligent transmission of postal matter.  In light of the language of the exception and the many other decisions that apply the exception to intentional torts, the court determined that the exception applied here and accordingly granted defendant’s motion to dismiss. 9 pages.  Judge Paul Barbadoro.



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