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Bar News - September 21, 2007

US District Court Listing – August 2007


* Published




08/14/07            McDaniel v. SkillSoft Corp.

Civil No. 04-cv-311-PB, Opinion No. 2007 DNH 094


Scott McDaniel filed this suit claiming that he was sexually harassed by his supervisor, Rob Brown, while both men worked at SkillSoft Corporation’s (“SkillSoft”) office in Nashua, New Hampshire.  McDaniel sought damages for alleged violations of Title VII of the Civil Rights Act of 1964 and the New Hampshire Civil Rights Act, as well as for the common law torts of intentional infliction of emotional distress and constructive discharge.  Because the undisputed evidence established that McDaniel suffered no tangible employment action, that SkillSoft exercised reasonable care to prevent and promptly correct any harassing behavior, and that McDaniel unreasonably failed to take advantage of preventive or corrective opportunities afforded him by SkillSoft, the court granted defendant’s motion for summary judgment with respect to McDaniel’s Title VII claim.  Having resolved all federal claims, the court declined to exercise supplemental jurisdiction over the related state law claims.  12 pages.  Judge Paul Barbadoro.




08/14/07            Carey v. Hillsborough County Dep’t of Corr.

Civil No. 05-cv-274-PB, Opinion No. 2007 DNH 105


William Carey brings this action pursuant to 42 U.S.C. § 1983 against the Hillsborough County Department of Corrections (“HCDOC”), HCDOC Superintendent James M. O’Mara, Jr., and Roland St. Onge, D.D.S. (“Dr. St. Onge”) to recover for injuries sustained during his pretrial detention.  Carey alleges that defendants violated his Eighth Amendment rights by failing to protect him from an assault by a fellow inmate and failing to provide him with adequate dental care.  He also asserts a state law negligence claim against Dr. St. Onge related to the dental claim.  All defendants moved for summary judgment.  After analyzing the issues, the court concluded that the defendants had not acted with the deliberate indifference required to maintain plaintiff’s claim.  The court granted defendants’ motions with respect to Carey’s federal claims and dismissed without prejudice his state claims.  10 pages.  Judge Paul Barbadoro. 




08/30/07            Conservation Law Found. v. Fed. Highway Admin. & N.H. Dep’t of Transp.

Civil No. 06-cv-45-PB, Opinion No. 2007 DNH 106


In April 2004, the Federal Highway Administration (“FHWA”) and New Hampshire Department of Transportation (“NHDOT”) issued a Final Environmental Impact Statement proposing, among other things, to add four lanes—two in each direction—to Interstate 93 between Salem and Manchester in order to address traffic congestion and safety issues.  On June 28, 2005, FHWA issued a Record of Decision approving the proposed alternative.  In the instant lawsuit, the Conservation Law Foundation challenges the widening proposal under the National Environmental Policy Act (“NEPA”) and Federal-Aid Highway Act (“FAHA”), alleging, inter alia, that the defendants relied on inaccurately low population growth projections in conducting their analyses of the traffic impacts and air quality impacts of the proposed widening.  On cross-motions for summary judgment, the court concluded that the defendants erred when they chose to base the traffic projections they disclosed in the Final Environmental Impact Statement (“FEIS”) on an outdated population growth forecast by the Office of Energy and Planning rather than their own experts’ more recent forecasts.  As a result, they failed to consider in the FEIS how the substantial additional traffic that results from the use of the more recent forecasts affects both their assessment of the widening proposal as a traffic congestion reduction measure and the impact that the additional traffic will have on secondary roads and air quality issues.  The court further determined that this error was not harmless in light of NEPA’s notice and comment requirements and underlying purpose.   Accordingly, the court granted CLF’s motion for summary judgment.  87 pages.  Judge Paul Barbadoro.




8/20/07 Leo Marquis v. Fairview Nursing Home, Inc., et al.,

Civil No. 06-cv-233-JD, Op. No. 2007 DNH 098


Marquis brought a declaratory judgment action, seeking insurance coverage under his own policy that was continued through COBRA and his wife’s plan provided by her employer.  The two insurers denied coverage on the ground that their coverage was secondary to the other based on their policy provisions.  The court ruled that under a Medicare exception in the Anthem Blue Cross and Blue Shield policy, the Fairview Nursing Home, Inc. plan provided primary coverage.  5 pages.  Judge Joseph A. DiClerico, Jr.




09/29/07            Fritz v. Brown and Daly

Civil No. 06-cv-469-PB, Opinion No. 2007 DNH 104


Randal Fritz, a former investigator for the New Hampshire Commission for Human Rights, brings this 42 U.S.C. § 1983 action, alleging that the Commission’s Chairman and Executive Director violated his First Amendment rights by retaliating against him after he engaged in speech and acts protected by the First Amendment, including filing a previous lawsuit against numerous Commissioners, filing a whistle-blower complaint, posting a court order on his office wall, and seeking access to a private commission meeting.  Defendants moved to dismiss the suit, arguing both that his claims fail to state viable causes of action because they are based on unprotected acts, and that they are entitled to qualified immunity.  The court denied the motion in part and granted it in part based on its conclusion that the filing of the Fritz’s prior lawsuit was conduct protected by the First Amendment, but that his other acts were unprotected.  19 pages.  Judge Paul Barbadoro.




8/8/07   MACTEC Engineering & Consulting, Inc. v. OneBeacon Insurance Co.

Civil No. 06-cv-466-JD, Op. No. 2007 DNH 093


MACTEC brought a declaratory judgment action, seeking a determination that the liability insurer for a subcontractor, OneBeacon, was obligated to provide a defense and indemnification to MACTEC against claims brought in an arbitration proceeding for damages caused by a defective water remediation system.  The court agreed with OneBeacon that the property damage at issue occurred when the defective remediation system was put into operation, failed, and was shut down, not when the allegedly defective part of the system was constructed.  As a result, the property damage did not occur while OneBeacon’s policies were in effect.  The court granted summary judgment in favor of OneBeacon.  10 pages.  Judge Joseph A. DiClerico, Jr.




8/14/07 Goss v. MAN Roland, Inc., et al.

Case No. 03-cv-513-SM, Opinion No. 2007 DNH 096


Patent infringement plaintiff sought summary judgment on defendant’s claim that the patents-in-suit were unenforceable for inequitable conduct.  The court granted plaintiff’s motion because the alleged inequitable conduct was, in any event, entirely unrelated to the patents-in-suit.  7 pages.  Chief Judge Steven J. McAuliffe.




8/23/07 Cate v. Public Service Enterprise Group, et al.

Case No. 06-cv-200-SM, Opinion No. 2007 DNH 100


Plaintiff, an at-will employee, sued his former employer claiming the defendant violated his constitutionally protected (federal and state) due process rights when it terminated plaintiff’s employment without providing him with an opportunity to present his case.  The court granted the defendant’s motion to dismiss for lack of personal jurisdiction because the defendant lacked sufficient minimum contacts to support the exercise of personal jurisdiction in this district.  The court also explained that because constitutional violations only occur when a government actor (or someone acting in concert with a government actor) takes some prohibited action, plaintiff’s complaint failed to state viable claim.  16 pages.  Chief Judge Steven J. McAuliffe.


8/23/07 Barrett v. Ambient Pressure Diving, et al.

Case No. 06-cv-240-SM, Opinion No. 2007 DNH 101


Following the death of her husband in a diving accident, plaintiff sued a number of defendants.  One of those defendants, a manufacturer of diving equipment, brought third-party claims against the husband’s diving partners seeking contribution and indemnification.  It also alleged that plaintiff and one of the third-party defendants conspired to make fraudulent statements to investigators so plaintiff could recover certain life insurance proceeds.  One of the third-party defendants moved to dismiss, alleging the court lacked personal jurisdiction over him.  The court granted that motion, explaining that because the accident occurred in Pennsylvania and the alleged false statements were made in Pennsylvania and Maryland, the third-party defendant lacked minimum contacts with New Hampshire sufficient to justify the exercise of personal jurisdiction.  12 pages.  Chief Judge Steven J. McAuliffe.


8/28/07 Stacy v. Johnson

Case No. 07-cv-51-SM, Opinion No. 2007 DNH 103


Plaintiff, on behalf of a conservatorship benefitting him, brought suit against a Texas attorney seeking redress for alleged legal malpractice.  Plaintiff claimed that defendant, acting in concert with a New Hampshire attorney, pursued an unwarranted and unnecessary guardianship over him in Texas, despite a number of obvious and ongoing conflicts of interest.  The court dismissed the complaint, concluding that it lacked personal jurisdiction over defendant.  The court explained that because there was no partnership arrangement between the New Hampshire attorney and defendant, and because the alleged misconduct occurred in Texas, defendant lacked minimum contacts with New Hampshire sufficient to justify the exercise of personal jurisdiction over him.  16 pages.  Chief Judge Steven J. McAuliffe.




09/29/07            Aumand v. Dartmouth Hitchcock Medical Center

Civil No. 06-cv-434-PB, Opinion No. 2007 DNH 095


Deborah Aumand and Francis Coffey bring claims for medical malpractice, loss of consortium, and negligent infliction of emotional distress against Dartmouth Hitchcock Medical Center (“DHMC”), seeking recovery for injuries caused by the alleged medical negligence of DHMC and/or its employees.  DHMC moved to have the case referred to a screening panel pursuant to the requirements of N.H. Rev. Stat. Ann. (“RSA”) § 519-B.  Plaintiffs objected on the grounds that the New Hampshire screening panel requirement does not apply in federal court under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), because it is procedural rather than substantive.  Because the court determined that the law is likely to have a significant impact on the outcome of cases referred to the panel and encourage forum shopping, it is substantive for Erie purposes.  Accordingly, the court granted the motion and stayed the federal action pending the screening process.  5 pages.  Judge Paul Barbadoro.




08/14/07            United States v. Shanahan

Civil No. 04-cr-126-04-PB, Opinion No. 2007 DNH 097


Jerry Shanahan moved to dismiss the criminal charges against him with prejudice on the grounds that the delay in bringing him to trial following a mistrial violates the Speedy Trial Act, 18 U.S.C. § 3161 et. seq.  The United States objected to the motion, arguing that the judge had effectively granted an ends-of-justice continuance when he set the trial date outside the permissible period because he had in mind several factors which would permit him to do so on a motion for continuance.  In rejecting the prosecutor’s argument, the judge noted that although he had considered relevant factors which might support a continuance, he had not engaged in the formal balancing test required by the Act.  The court then analyzed several relevant factors and concluded that the indictment should be dismissed without prejudice, rather than with prejudice as the defendant had requested.  18 pages.  Judge Paul Barbadoro.




8/24/07 ACE American Ins. Co. v. Fountain Powerboats, et al.

Case No. 06-cv-66-SM, Opinion No. 2007 DNH 102


This case arises out of a boating accident on Lake Winnipesaukee.  Defendant, the manufacturer of the high-performance boat at issue, moved for summary judgment as to plaintiff’s claim that it breached the implied warranty of fitness for a particular purpose.  Specifically, defendant asserted that it had not received adequate, timely notice of plaintiff’s warranty claim, as is required by state law.  The court denied that motion, concluding that: (1) the boat’s owner was required to notify only his immediate seller (i.e., the marina from which he purchased the boat and not the boat’s manufacturer, parts manufacturers, or any other “remote sellers”) of his warranty claim; and (2) the sufficiency of the notice plaintiff gave to the marina was largely a question of fact.  13 pages.  Chief Judge Steven J. McAuliffe.



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