Bar News - November 23, 2007
US District Court Listing – October 2007
10/11/07 Amatucci v. Hamilton, et al.
Case No. 05-cv-259-SM, Opinion No. 2007 DNH 126
After the court granted defendants’ motion for summary judgment as to pro se plaintiff’s § 1983 claims, defendants moved for an award of approximately $33,000 in attorney’s fees. See 42 U.S.C. § 1988(b). Defendants asserted that plaintiff’s claims were frivolous and said her litigation conduct was vexatious. Noting that plaintiff appeared incapable of distinguishing between meritorious and frivolous claims, and pointing out that defendants’ submissions in support of their motion were not entirely complete, the court concluded that principles of fairness and equity counseled in favor of granting defendants’ motion in part and awarding them $5,000 in fees. 15 pages. Chief Judge Steven J. McAuliffe.
ATTORNEY’S FEES / POST-TRIAL MOTIONS
10/10/07 Marin v. US Attorney General
Case No. 05-ds-247-SM, Opinion No. 2007 DNH 124
After prevailing at trial on her claim that she was wrongfully terminated from her job as an Assistant United States Attorney in the District of Puerto Rico, plaintiff moved the court for post-trial equitable relief (in the form of reinstatement or front pay), as well as an award of reasonable attorney’s fees. Noting that reinstatement is the preferred remedy in unlawful termination cases, the court ordered that plaintiff be reinstated to her former position as an Assistant United States Attorney and granted her request for attorney’s fees in the amount of $427,491.80. 16 pages. Chief Judge Steven J. McAuliffe.
EMPLOYMENT - FMLA, ADA, WRONGFUL DISCHARGE
10/15/07 William Schomburg v. Dell, Inc.
Case No. 06-cv-177-JD, Opinion No. 2007 DNH 128
The plaintiff was terminated from his job as a systems engineer at Dell after his FMLA leave expired and he failed to return to work or seek an extended leave. He brought suit alleging that Dell terminated him during his FMLA leave and in retaliation for taking FMLA leave and in violation of the ADA, and asserted state law claims of wrongful discharge, breach of contract, misrepresentation, and negligent infliction of emotional distress. Dell moved for summary judgment. Because the record established that the plaintiff failed to return to work or provide the necessary information to extend his leave and also did not provide any material factual dispute as to his other claims, the court granted summary judgment in favor of Dell. 14 pages. Judge Joseph A. DiClerico, Jr.
10/15/07 Violette v. Warden, New Hampshire State Prison
Case No. 07-cv-47-PB, Opinion No. 2007 DNH 129
Petitioner sought habeas corpus relief, arguing that the imposition of consecutive sentences in New Hampshire violated his right to due process and that the New Hampshire Supreme Court incorrectly construed ambiguities in State law against him in violation of the rule of lenity. Petitioner failed to file his petition for writ of habeas corpus within the one-year statute of limitation in AEDPA, 28 U.S.C. § 2244(d). Because petitioner’s claim was barred by the AEDPA statute of limitation, the court granted warden’s motion for summary judgment. 7 pages. Judge Paul Barbadoro.
10/23/07 Guay v. United States of America
Case No. 07-cv-282-SM, Opinion No. 2007 DNH 130
Petitioner sought habeas corpus relief pursuant to 28 U.S.C. § 2255, alleging that she had received constitutionally deficient representation, she was entrapped by police into committing her crimes of conviction, and her sentence was improperly based on the “100 to 1” sentencing disparity between powder cocaine and crack. After addressing each of petitioner’s claims in detail, the court concluded that they were without merit and denied her request for habeas relief. 8 pages. Chief Judge Steven J. McAuliffe.
10/3/07 PC Connection, Inc. v. Bartrug, et al.
Case No. 07-cv-306-SM, Opinion No. 2007 DNH 123
Plaintiff’s request for a temporary restraining order was denied because plaintiff failed to make any effort to serve the opposing party, or explain why notice would be impractical or impossible. 4 pages. Chief Judge Steven J. McAuliffe.
INTELLECTUAL PROPERTY (COPYRIGHT)
10/11/07 T-Peg, Inc. v. Vermont Timber Works, Inc., et al.
Case No. 03-cv-462-SM, Opinion No. 2007 DNH 125
In this copyright infringement case, the court ruled that the plaintiff’s decision not to seek its own lost profits as damages did not constitute an election of statutory damages that precluded plaintiff from pursuing disgorgement of the defendant’s profits as an element of damages, subject to a timely election between actual and statutory damages. 7 pages. Chief Judge Steven J. McAuliffe.
PERSONAL INJURY / SKI STATUTE
10/24/07 Porter v. Dartmouth College
Case No. 07-cv-28-PB, Opinion No. 2007 DNH 131
Plaintiff died from injuries sustained during a ski class for undergraduate credit at a ski area operated by her college. The court ruled that plaintiff’s claims against the college for negligent instruction and wrongful death were not barred by the New Hampshire Ski Statute, N.H. Rev. Stat. Ann. § 225-A, and were not subject to the Ski Statute’s two-year statute of limitation period.
8 pages. Judge Paul Barbadoro.
REMAND / SUBJECT MATTER JURISDICTION
10/31/07 Cavadi v. Bank of America, N.A.
Case No. 07-cv-224-PB, Opinion No. 2007 DNH 133
Plaintiff brought this action in state court against a national bank, which removed the case to federal court. The court denied Plaintiff’s motion to remand, because the parties were diverse under 28 U.S.C. § 1348 and Defendant’s involvement in a prior factually related, but separate, action in state court did not waive its right to remove the new action. 6 pages. Judge Paul Barbadoro.