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Bar News - October 19, 2007

US District Court Listing – September 2007


 * Published




9/24/07 Donovan v. Tracy, et al.

Case No. 05-cv-211-SM, Opinion No. 2007 DNH 120


After several months of motion practice, on the eve of trial, pro se plaintiff withdrew all claims against defendant, with prejudice.  Defendant then sought an award of reasonable costs and attorney’s fees, asserting that plaintiff’s claims were frivolous and had been pursued in bad faith, solely for the purpose of causing defendant to incur attorney’s fees.  The court acknowledged that the evidence defendant submitted in support of her motion, if true, suggested plaintiff had engaged in conduct worthy of sanction.  But, because defendant failed to supply any affidavits or other documents attesting to the accuracy of the materials upon which she relied, the court denied her motion, without prejudice to refiling with appropriate support.  7 pages.  Chief Judge Steven J. McAuliffe.




9/27/07 In re:  William McNeir Richmond

Case No. 06-cv-426-SM, Opinion No. 2007 DNH 121


The court affirmed a decision of the bankruptcy court holding that when the New Hampshire Supreme Court Committee on Professional Conduct assesses an attorney subject to discipline some or all of the expenses of conducting the investigation and proceeding, that assessment is in the nature of a fine or penalty, and is not in the nature of “reimbursement for actual pecuniary loss.”  Accordingly, the assessment is nondischargeable under 11 U.S.C. § 523(a)(7).   9 pages.  Chief Judge Steven J. McAuliffe.




9/10/07 Toney v. Perrine, et al.

Case No. 06-cv-327-SM, Opinion No. 2007 DNH 110


Following his arrest, prosecution, and eventual acquittal for loitering, plaintiff brought suit against three police officers, alleging that they subjected him to an unconstitutional arrest and, subsequently, malicious prosecution.  The court granted defendants’ motion for summary judgment, concluding that their decision to arrest plaintiff was supported by probable cause and nothing in the record supported even the inference that plaintiff’s prosecution was motivated by malice. 

            16 pages.  Chief Judge Steven J. McAuliffe.




9/7/07   Carey v. Ward, et al.

Case No. 06-cv-293-SM, Opinion No. 2007 DNH 109


Pro se plaintiff, currently an inmate at New Hampshire’s Northern Correctional Facility, brought suit claiming that, while he was housed at Hillsborough County House of Corrections, he received constitutionally deficient medical care.  Specifically, he claimed that two of the correctional facility’s health care providers were deliberately indifferent to his serious medical needs.  Concluding that the undisputed material facts of record revealed that the medical care defendants provided to plaintiff was more than adequate, the court granted their motion for summary judgment.  14 pages.  Chief Judge Steven J. McAuliffe.




9/28/07 Champagne v. Rivas, et al.

Case No. 05-cv-79-SM, Opinion No. 2007 DNH 122


Plaintiffs, two former pre-trial detainees at the Hillsborough County House of Corrections (also known as “Valley Street”), prevailed at trial on their claims that they were denied due process at a disciplinary hearing and, thereafter, subjected to punishment that violated the Fourteenth Amendment.  In total, the jury awarded plaintiffs $150,000 in compensatory and punitive damages.  As to plaintiffs’ third claim - that a corrections officer falsely accused them of rushing him and threatening to take him hostage - the jury returned a defendant’s verdict.  Subsequently, defendants moved for judgment as a matter of law, remittitur, or, alternatively, a new trial.  After carefully reviewing the evidence produced at trial, and viewing that evidence in the light most favorable to the jury’s verdict, the court denied defendants’ motions, concluding that: (1) plaintiffs’ claims were not barred by the “favorable termination” rule articulated in Heck v. Humphrey and its progeny; (2)the jury’s verdicts were not inconsistent; (3) remittitur of the compensatory damages award was not appropriate; and (4) the punitive damages award was adequate, but not excessive.  32 pages.  Chief Judge Steven J. McAuliffe.




9/18/07 James Sloman, on behalf of himself and all others similarly situated, v. Presstek, Inc., Edward J. Marino, and Moosa E. Moosa

Case No. 06-cv-377-JD, Opinion No. 2007 DNH 115


Sloman alleges violations of the fraud provisions of the Securities Exchange Act of 1934 by Presstek, Marino, and Moosa and asserts a putative class of himself and all others who purchased Presstek stock between July 27, 2006, when the defendants issued a positive press release about Presstek’s financial performance and September 28, 2006, when the defendants issued a press release just after midnight acknowledging that the previous day’s positive revenue projection was incorrect and disclosing unfavorable performance.  The stock price fell 40% in two days.  The defendants moved to dismiss the complaint, arguing that the safe harbor provision of the Private Securities Litigation Reform Act of 1995 shielded them, that Sloman failed to plead fraud with sufficient particularity, that he failed to allege facts which provided a strong inference of scienter, that he failed to plead facts to show that his loss was caused by their late disclosures, and that he failed to allege facts that would show they were “control persons” under § 20(a).  The court concluded that the complaint sufficiently alleged the claims against the defendants to avoid dismissal.  34 pages.  Judge Joseph A. DiClerico, Jr.




9/24/07 Dennis v. Osram Sylvania, Inc.

Case No. 06-cv-29-SM, Opinion No. 2007 DNH 117


In this retaliation claim brought under RSA 354-A, the court granted the defendant’s summary judgment motion because the plaintiff failed to establish a prima facie case of retaliation in that he failed to show a causal connection between his protected activity and the decision to terminate him; the undisputed factual record demonstrated that the decisionmakers who terminated the plaintiff’s employment did not know about his protected activity when they chose to retain another employee rather than plaintiff in connection with a downsizing operation.  25 pages.  Chief Judge Steven J. McAuliffe.




9/24/07 Thompson v. Liberty Life Assurance Company

Case No. 06-cv-117-SM, Opinion No. 2007 DNH 119


Plaintiff brought suit seeking benefits under her former employer’s ERISA-governed long-term disability plan.  Because that plan vested the plan administrator (which was also the insurer underwriting the plan’s benefits) with discretion to make benefits eligibility determinations, the plaintiff was obligated to demonstrate that its decision to deny her application for benefits was “arbitrary and capricious.”  Although there was substantial evidence in the record supportive of plaintiff’s claim that she was disabled, there was also “reasonably sufficient evidence” to support the plan administrator’s contrary decision.  Noting that it was bound by the applicable standard of review, the court concluded that it was constrained to uphold the plan administrator’s decision.  15 pages.  Chief Judge Steven J. McAuliffe.




9/14/07 Nicole Corin Christian v. Travis W. Anderson, et al.,

Case No. 05-cv-356-JD, Opinion No. 2007 DNH 114


Christian, proceeding pro se, brought federal civil rights claims pursuant to 42 U.S.C. § 1983 and state law claims against New Hampshire State Trooper Anderson and Grafton County officials and employees, arising from the circumstances of a traffic stop that lead to Christian’s arrest and brief incarceration at the Grafton County House of Corrections.  The defendants moved for summary judgment.  The court held, based on undisputed facts, that the minimal force used by Trooper Anderson to remove Christian from her car and to place her in the cruiser was reasonable and that no sexual assault occurred, entitling Anderson to summary judgment on Christian’s federal claims against him.  Christian’s claims against the Grafton County defendants were based on booking procedures she experienced at the jail, which Christian asserted included a strip search.  The court concluded that Christian could not prove that she was strip searched based on a county practice or policy, entitling the county to summary judgment.  As to the individual defendants, the court held that a material factual dispute existed as to whether the “clothing exchange” constituted an unconstitutional strip search.  The court also held, however, that the defendants were entitled to summary judgment based on qualified immunity because it was not clearly established in 2002 that a clothing exchange was an unconstitutional strip search.  The court declined supplemental jurisdiction over the state law claims. 16 pages.  Judge Joseph DiClerico, Jr.




9/25/07 Michaud v. McAnaney

Case No. 06-cv-408-SM, Opinion No. 2007 DNH 118


The court denied defendant’s summary judgment motion in this personal injury action, holding that RSA 508:4-g, which includes a three-year statute of limitations, must be construed as operating prospectively only.  Accordingly, the court concluded that the statute does not reduce the limitation period from six years to three years for plaintiffs asserting civil claims arising out of child sexual abuse that occurred prior to 1986.  10 pages.  Chief Judge Steven J. McAuliffe.




8/14/07 Jack Vaughan v. Bernice A. Ray Elementary School, et al.

Case No. 05-cv-223-JD, Opinion No. 2007 DNH 112


Vaughan brought a claim of gender discrimination under Title VII of the Civil Rights Act and a state law defamation claim against the school where he had been employed as a teacher’s aide, the superintendent, the principal, and the assistant principal.  The school terminated Vaughan’s employment based on his interactions with second grade female students and his refusal to modify his behavior.  Vaughan contended that his employment was terminated because he is male while female teachers were allowed to have such contact with students.  The defendants moved for summary judgment.  The court concluded that the undisputed facts established that Vaughan’s contact with female students caused legitimate concerns and that his “defense” of his actions along with a tape of love songs he gave to one of the students confirmed his inappropriate motivation.  The court granted summary judgment on the federal claim and declined supplemental jurisdiction as to the state law claim.  11 pages.  Judge Joseph A. DiClerico, Jr.




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