New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

Clio is the most widely-used, cloud-based practice management system in the world.

Order with big business buying power.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - March 21, 2008

US District Court Decision Listing: February 2008

* Published


2/1/08 Lori Carrier and Valerie Whitman v. American Bankers Life Assurance Co. of Florida
Case No. 05-cv-430-JD, Opinion No. 2008 DNH 031

The plaintiffs filed a putative class action seeking to recover the unearned part of single insurance premiums paid to the defendant as part of their vehicle financing. They moved to certify a class of those who bought vehicle credit insurance in New Hampshire and twelve other states, paid off their financing before the due date, and did not receive a refund of the unearned part of the premium paid. The count concluded that the plaintiffs had standing to represent class members who bought life credit insurance, in addition to disability credit insurance. The court denied the motion for class certification, however, because their class definition was incomplete and they failed to show numerosity and adequacy. 35 pages. Judge Joseph A. DiClerico, Jr.

2/19/08 Stephen Miner v. Grafton County Department of Corrections, Superintendent Glenn Libby, et al.
Case No. 06-cv-242-JD, Opinion No. 2008 DNH 038

Miner, proceeding pro se, brought claims under the Americans with Disabilities Act and 42 U.S.C. § 1983, challenging the conditions of his confinement at the Grafton County Department of Corrections. The defendants moved for summary judgment on the ground that Miner had not exhausted his available administrative remedies as required by 42 U.S.C. § 1997e(a). The defendants submitted the affidavit of the jail superintendent to show that Miner filed only three grievances during his incarceration in Grafton County and that none of the filed grievances addressed the issues raised in his federal claims. Miner failed to provide any evidence to contradict the defendants’ showing. Summary judgment was granted in the defendants’ favor. 8 pages. Judge Joseph A. DiClerico, Jr.


2/12/08 U.S. v. Steven Huard
Case No. 06-cr-117-1-SM, Opinion No. 2008 DNH 035

Following his conviction for, among other things, conspiracy to rob Bellwether Credit Union, Steven Huard moved for a new trial, claiming he was denied effective assistance of counsel when counsel failed to seek suppression of a handgun seized from Huard’s home. The court denied Huard’s motion, concluding that because it was untimely, the court lacked jurisdiction to consider it. The court also noted that the proper means by which to raise his claim of ineffective assistance was through either a direct appeal of his convictions or a collateral attack on those convictions (i.e., a petitioner for habeas corpus). 7 pages. Chief Judge Steven J. McAuliffe.

2/21/08 U.S. v. Tobin
Case No. 04-cr-216-1-SM, Opinion No. 2008 DNH 042

James Tobin was charged with various crimes stemming from his involvement in a politically-motivated scheme to disrupt the telephone communications of the N.H. Democratic Party. In December of 2005, a federal petit jury convicted Tobin of conspiring to cause the telephone of another repeatedly to ring with the intent to harass any person at the called number. He was, however, acquitted of the more serious charge of conspiring to violate the civil rights of voters. Tobin appealed his convictions, asserting that the jury had not been properly instructed on the meaning of "intent to harass." The court of appeals agreed and vacated his convictions. That court also observed that the level of "intent" the government must prove to obtain a conviction was unclear. On one hand, the government might be required to prove that Tobin specifically intended to cause emotional upset on the part of people at the number called, while on the other it might be sufficient to simply prove that Tobin knew such upset was likely to occur. If it were the former, the court of appeals held that Tobin was entitled to judgment of acquittal, whereas if it were the latter he was entitled to a new trial. The court of appeals left that legal issue unresolved for the trial court. On remand, after a thorough review of the statute’s legislative history and the pertinent precedent, the court concluded the government was required to prove that Tobin specifically intended to cause emotional upset on the part of people at the numbers called. Accordingly, given the court of appeals’ finding that the evidence at trial was insufficient to sustain a conviction under that standard, the court granted Tobin’s motion for judgment of acquittal. 12 pages. Chief Judge Steven J. McAuliffe.


2/25/08 Murphy v. Postmaster General, U.S. Postal Service
Case No. 07-cv-145-PB, Opinion No. 2008 DNH 045

Plaintiff sought specific performance of a settlement agreement that he entered into with defendant in 1994 to resolve plaintiff’s complaints of age and religious discrimination. Plaintiff also brought claims that defendant retaliated against him for bringing his discrimination complaints. Assuming without deciding that the plaintiff could file in this court to enforce a breached Title II/Age Discrimination in Employment Act settlement agreement, the court found that plaintiff’s specific performance claim was barred because plaintiff failed to meet several administrative deadlines required to preserve his claim. The court also held that plaintiff’s retaliation claims were barred because he failed to meet administrative deadlines and because the ADEA provides no cause of action for retaliation. 19 pages. Judge Paul Barbadoro.


2/5/08 Omnipoint Communications, Inc. v. City of Nashua, et al.
Case No. 07-cv-46-PB, Opinion No. 2008 DNH 032

Plaintiff moved for summary judgment on claims that city Zoning Board of Adjustment (ZBA) improperly denied plaintiff’s application for a special exception to construct a wireless telecommunications tower in a residential development under both state law and the Telecommunications Act of 1996. Defendant filed a cross motion for summary judgment. The court found that there was substantial evidence in the record to support the ZBA’s conclusion that plaintiff’s application did not meet the criteria for a special exception because the tower would be out of character with the surrounding neighborhood. With regard to the state law claim, the court found that the ZBA’s decision was neither illegal nor unreasonable. Therefore, the court denied plaintiff’s and granted defendants’ cross motion for summary judgment. 18 pages. Judge Paul Barbadoro.


2/14/08 Barclay v. U.S. Army Corps of Engineers
Case No. 06-cv-368-SM, Opinion No. 2008 DNH 037

Plaintiffs, a group of landowners in Tamworth, New Hampshire, sought a judicial declaration that the U.S. Army Corps of Engineers violated provisions of the Clean Water Act when it granted a land developer a permit to place fill material within wetlands as part of its project to develop a European-style road course. Specifically, plaintiffs asserted that the Corps failed to require the developer to take sufficient noise-abatement measures to insure that sounds generated at the facility did not adversely affect the surrounding community. The court disagreed and granted defendants’ motions for summary judgment, concluding that the Corps conducted a through investigation into the noise-abatement issue and the restrictions imposed on the developer to control noise from the facility were neither arbitrary nor capricious, nor did they involve an abuse of discretion. 22 pages. Chief Judge Steven J. McAuliffe.


2/14/08 Geary v. Warden, NHSP
Case No. 07-cv-116-PB, Opinion No. 2008 DNH 036

Petitioner sought habeas corpus relief challenging his state court convictions for sexual assault and witness tampering. The court granted Warden’s motion for summary judgment because the AEDPA one-year statute of limitation expired long before the petition was filed. Petitioner’s conviction became final on March 6, 2004, when the time period for seeking direct review of his conviction expired. Petitioner did not file his petition in federal court until April 19, 2007, and he presented no reason why failure to file within the one-year limitation period should be excused. 6 pages. Judge Paul Barbadoro.

2/26/08 Goupil v. NH State Prison Warden
Case No. 07-cv-58-SM, Opinion No. 2008 DNH 046

After unsuccessfully appealing his convictions on five counts of aggravated felonious sexual assault, Stephen Goupil sought federal habeas corpus relief, claiming he was denied a fair and an impartial jury. Specifically, Goupil claimed his criminal trial was tainted because one of the jurors made derogatory comments about criminal defendants in his Web log (also known as a "blog"). Upon learning of the juror’s blog, the state trial court conducted an extensive inquiry into the matter and reasonably concluded that: (1) the comments did not relate to Goupil’s trial and, therefore, were not presumptively prejudicial; (2) none of the other jurors was even aware of the blog; and (3) Goupil failed to demonstrate that he had been prejudiced by those comments. Because the state court’s resolution of Goupil’s claims was not contrary to, nor did it involve an unreasonable application of, clearly established federal law, Goupil was not entitled to federal habeas relief. 25 pages. Chief Judge Steven J. McAuliffe.


2/8/2008 Presstek, Inc. v. Creo, Inc. & Creo Americas, Inc.
Case No. 06-cv-65-PB, Opinion No. 2008 DNH 034

Defendant moved to exclude the opinions of an expert witness under Fed. R. Evid. 104(a) and 702. The court found the expert’s methodology to be reliable based on supporting evidence in published, peer reviewed scientific literature. The court ruled that a majority of defendant’s arguments in support of exclusion were irrelevant because they focused on the weight, not the admissibility, of the expert testimony. 31 pages. Judge Paul Barbadoro.


2/20/08 In re Tyco International, Ltd. Multidistrict Litigation
Case No. 02-md-1335-PB, Opinion No. 2008 DNH 040

Plaintiffs filed a class action complaint asserting state law securities claims on behalf of a class of 50 holders of defendant’s stock. Defendant moved to dismiss, arguing that the complaint is a "covered class action" under the Securities Litigation and Uniform Standards Act ("SLUSA"). Plaintiffs argued that "covered class action" as defined in SLUSA only describes classes of more than 50 people. The court found that U.S. Supreme Court jurisprudence is silent on this issue and disagreed with plaintiffs’ argument that their interpretation of the statute was required to prevent part of the statute from being rendered superfluous. Applying the statute’s plain language, the court granted defendant’s motion to dismiss under SLUSA. 5 pages. Judge Paul Barbadoro.

2/19/08 SEC v. Patel, et al.
Case No. 07-cv-39-SM, Opinion No. 2008 DNH 039

One of ten defendants in an eight-count securities fraud action moved for a more definite statement. The court denied the motion, recognizing that a more definite statement is a disfavored remedy and that the SEC’s complaint did not leave the defendant unable to determine the issues he was obligated to meet. 8 pages. Chief Judge Steven J. McAuliffe.


2/25/08 Hurd v. Commissioner, Social Security Administration
Case No. 07-cv-216-PB, Opinion No. 2008 DNH 044

Plaintiff moved to reverse the Commissioner’s denial of her application for disability insurance benefits, arguing that the Administrative Law Judge’s failure to consult a medical expert and the Commissioner’s reliance on irrelevant vocational expert testimony in his final opinion constituted reversible error. Because the Commissioner had already concluded that plaintiff was disabled as of 2001 and because plaintiff’s impairment consisted of a progressive chronic inflammatory disease, the court found the ALJ should have consulted a medical expert on the issue of whether plaintiff’s disability onset date was prior to or after June 30, 2000. The court also found that the Commissioner erred when he relied on expert testimony from plaintiff’s first administrative hearing rather than expert testimony from plaintiff’s second hearing, because the first hearing did not reflect consideration of all of plaintiff’s impairments. 24 pages. Judge Paul Barbadoro.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer