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

Everything you need to purchase a court bond is just a click away.

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - May 23, 2008


US District Court Decision Listing: April 2008

* Published

CIVIL RIGHTS § 1983: NON-PRISONER, NON-USE OF PROPERTY

4/24/08 Dianne Dunfey v. Seabrook Sch. Dist. and Stanley Shupe
Case No. 07-cv-140-PB, Opinion No. 2008 DNH 087

Dianne Dunfey, a teacher at the Seabrook Middle School, brought suit alleging that Seabrook School District and Seabrook Middle School Principal, Stanley Shupe, violated her First Amendment right to freedom of speech by retaliating against her for her refusal to stand and recite the pledge of allegiance during her homeroom class. Defendants moved for summary judgment, arguing that because Dunfey exhausted neither the grievance procedures of her collective bargaining agreement ("CBA") nor those of the relevant state agency before seeking relief in federal court, her claims were barred. The court denied defendants’ motion because the CBA did not waive her right under § 1983 to seek judicial redress for the alleged violation of her constitutional rights, and because non-prisoner litigants need not exhaust their state administrative remedies before filing a § 1983 suit in federal court.

8 pages. Judge Paul Barbadoro.


CIVIL RIGHTS § 1983: PRISONERS

4/24/08 Johnson v. Poulin, et al.
Civil No. 07-cv-161-PB, Opinion No. 2008 DNH 086

Defendants moved for summary judgment in civil rights action in which a prisoner asserted violations of the Eighth and Fourteenth Amendments and the Americans with Disabilities Act. The court granted defendants’ motion with respect to most of plaintiff’s claims. The court granted summary judgment on prisoner’s claims that temporary bans on physical presence in the prison library and prohibition against "inappropriate" search terms on law library research databases violated his right of access to the courts, because prisoner failed to show actual injury. The court also granted defendants’ motion with respect to prisoner’s claims that a prison official endangered his safety and defamed him by spreading a rumor to other prisoners, because prisoner presented insufficient facts to support a finding in his favor. The court granted defendants’ motion with respect to prisoner’s claim that prison officials denied him his right to adequate mental health care when they refused to provide him with cell feeds, because failed to present facts demonstrating that he has a mental health need for cell feeds. The court also granted summary judgment on prisoner’s claims that he has been denied access to hygiene items, because prisoner could not show that the deprivation was sufficiently serious to trigger Eighth Amendment protection. Finally, the court denied summary judgment with respect to prisoner’s claim that a prison official failed to protect him from violence at the hands of another prisoner because there exist genuine issues of material fact precluding summary judgment.

26 pages. Judge Paul Barbadoro.


4/2/08 Wolff v. N.H. Dept. of Corr.
Civil No. 06-cv-321-PB, Opinion No. 2008 DNH 071

Defendants moved for summary judgment with respect to prisoner’s claim that the prison failed to provide him with a religiously and nutritiously appropriate kosher diet in violation of his First Amendment rights and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Because prisoner’s claims that the kosher meals caused him to be ill were unsubstantiated, the court granted defendants motion.

12 pages. Judge Paul Barbadoro.


IMMIGRATION

4/30/08 Pinet v. United States Citizenship and Immigration Servs.
Civil No. 07-cv-314-PB, Opinion No. 2008 DNH 93

Plaintiff petitioned for review of denial of his application for naturalization; defendants sought summary judgment. The court granted defendants’ motion because, as a matter of law, plaintiff is unable to satisfy the "good moral character" requirement for naturalization because he has been convicted of an aggravated felony.

10 pages. Judge Paul Barbadoro.


INCOME TAX REFUND

4/2/08 Irwin and Margery Muskat v. United States of America
Civil No. 06-cv-30-JD, Opinion No. 2008 DNH 073

The plaintiffs brought suit seeking a refund of income taxes paid on an amount they received under a noncompetition agreement as part of the sale of their business. They asserted that the payment was mistakenly characterized as ordinary income, having been made pursuant to a noncompetition agreement, when it should have been taxed as a long term capital gain because it was payment for Irwin Muskat’s personal goodwill. At the beginning of the bench trial, the plaintiffs raised a new theory that they were entitled to a refund because they paid self employment tax on the noncompetition payment, which was not subject to self employment tax. The court held that it lacked jurisdiction to consider the plaintiffs’ new self employment tax theory, that no basis existed to amend the complaint to add the new theory, and that the plaintiffs failed to provide "strong proof" that despite the express terms of the noncompetition agreement, the parties intended the payment to be compensation for personal goodwill. Judgment entered in favor of the government.

22 pages. Judge Joseph A. DiClerico, Jr.


ERISA PREEMPTION

4/28/08 Kim Walker, et al. v. Thibco, Inc. and Gerard L. Thobodeau
Civil No. 08-cv-39-JD, Opinion No. 2008 DNH 091

The plaintiffs brought suit in state court against their former employer and its principal owner and president, alleging that the defendants failed to provide agreed compensation in violation of RSA § 275:43 and in breach of their employment contracts. The defendants removed the case to federal court based on federal question jurisdiction, asserting complete preemption by ERISA. The plaintiffs moved to remand the case due to a lack of federal jurisdiction. The court concluded that ERISA does not preempt the plaintiffs’ claims because they are not ERISA plan beneficiaries or participants and are not seeking benefits from an ERISA plan. The court ordered the case to be remanded to state court but did not award attorneys’ fees and costs due to the plaintiffs’ failure to meet the applicable standard.

6 pages. Judge Joseph A. DiClerico, Jr.


RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT

4/28/08 Darren Starr v. Dennis Cox et al.
Civil No. 05-cv-368-JD, Opinion No. 2008 DNH 089

Starr, an inmate proceeding pro se, challenged the Northern Correctional Facility’s policies that restricted his practice of Tai Chi. Specifically, Starr argued that the defendants violated his rights under the First and Fourteenth Amendments, and under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Concerning Starr’s RLUIPA claim, the court held that Starr failed to create a triable issue as to whether the defendants’ current Tai Chi restrictions substantially burdened his religious exercise. The court also held that even if Starr could raise a triable issue on this point, the defendants satisfied their burden in demonstrating with conclusive evidence that their current Tai Chi restrictions serve a compelling state interest, prison security, using the least restrictive means. Accordingly, the court held that summary judgment was appropriate for the defendants on Starr’s RLUIPA claim. Because summary judgment was granted as to Starr’s RLUIPA claim, which imposes a stricter burden on the defendants than the Free Exercise Clause, summary judgment was also granted for the defendants as to Starr’s Free Exercise Clause claim. The court also held that Starr’s claims based on the Establishment Clause and the Equal Protection clause were based on what might happen in the future, and for this reason, the court did not decide Starr’s prospective claims because of the ripeness doctrine. Summary judgment was granted in the defendants’ favor as to all of Starr’s claims.

48 pages. Joseph A. DiClerico, Jr.


SOCIAL SECURITY

4/1/08 Boutsianis v. Soc. Sec. Admin.
Case No. 07-cv-250-PB, Opinion No. 2008 DNH 065

Plaintiff moved to reverse the Commissioner’s denial of her claim for Supplemental Security Income and Disability Insurance benefits under the Social Security Act. The court concluded that the ALJ did not err when he failed to accord controlling weight to the opinion of a treating physician because the physician’s opinion was unsupported by medical or clinical findings. The court also held that the ALJ did not err when he failed to consider Plaintiff’s alleged impairment of fibromyalgia because the medical records did not show that plaintiff had been diagnosed with fibromyalgia. The court granted plaintiff’s motion to reverse, however, because the ALJ did err by failing to consider whether plaintiff’s nonexertional limitations significantly impacted her ability to perform a full range of light work.

28 pages. Judge Paul Barbadoro.


 4/1/08 Ann Diomede-Reynolds v. Michael J. Astrue, Soc. Sec. Admin.
Case No. 07-cv-222-PB, Opinion No. 2008 DNH 068

Plaintiff moved to reverse the Commissioner’s denial of her application for disability insurance benefits. She first argued that the Administrative Law Judge ("ALJ") gave insufficient weight to an independent medical expert’s opinion that plaintiff had an adrenal tumor which caused plaintiff to suffer hypertension. The court ordered a remand for further adjudication on the question of whether the tumor existed, because the ALJ’s rejection of the expert’s conclusion inappropriately substituted his own lay judgment for that of the medical expert.

Plaintiff also argued that the ALJ either gave insufficient weight to or mischaracterized her treating physician’s opinion regarding her residual functional capacity ("RFC"). The court held, however, that substantial evidence existed to support the ALJ’s conclusion that her RFC was sufficient to allow her to return to her past relevant work.

Finally, plaintiff argued that the ALJ failed to make a specific finding regarding the effect that her panic and anxiety disorders had on her RFC. The court held, however, that the ALJ explicitly made such a finding, and this finding was supported by substantial evidence.

18 pages. Judge Paul Barbadoro.


 4/2/08 Bryan B. Nadeau v. Michael J. Astrue, Soc. Sec. Admin.
Case No. 07-cv-203-PB, Opinion No. 2008 DNH 069

Plaintiff moved to reverse the Commissioner’s denial of his application for disability insurance benefits. Plaintiff first argued that the Administrative Law Judge ("ALJ") lacked substantial evidence to support his conclusion that plaintiff’s depression was not severe. The court held that the ALJ acted within his discretion to make credibility judgments and resolve conflicts in the evidence, and that the ALJ implicitly found based on sufficient evidence in the record that any limitations imposed by plaintiff’s depression were mild. Accordingly, no remand was justified on this issue.

Plaintiff next argued that the ALJ lacked sufficient evidence to conclude that plaintiff’s employment specialist position was performed at a level consistent with substantial gainful activity ("SGA"). The court held that a remand was not justified because there was no reason to let plaintiff benefit from the combination of a self-created inconsistency in plaintiff’s reported earnings and plaintiff’s self-induced failure to address the issue at the appropriate time despite being represented by counsel at his hearing.

Finally, plaintiff argued that the ALJ should have determined whether the employment specialist position was an unsuccessful work attempt ("UWA") that should be counted as SGA. The court held that this argument had no merit because plaintiff offered no reason to justify expanding the UWA concept to include brief periods of work that precede rather than follow the onset of the impairment.

14 pages. Judge Paul Barbadoro.


TAX - PETITION TO QUASH IRS SUMMONS

4/8/08 Perry W. Browning and Nancy L. Browning v. United States
Civil No. 08-cv-43-JD, Opinion No. 2008 DNH078

Perry and Nancy Browning filed a motion to quash a third party summons served by the Internal Revenue Service upon the Brownings’ accountant in order to obtain records related to the Brownings. In support of their motion, the Brownings argued that the summons was not enforceable because the documents and testimony it sought were not relevant and were already in the possession of the government and because the summons was not issued for a legitimate purpose. In its response, the government offered an affidavit submitted by an IRS investigating agent. The government argued that the affidavit attested to each of the criteria necessary to demonstrate that the summons was issued in good faith. The court agreed and held that the government satisfied its prima facie case resulting in a good faith presumption. In reaching the second stage of the inquiry, the court also held that the Brownings failed to rebut this good faith presumption because they did not offer particularized evidence demonstrating that the summons was not issued for a legitimate purpose, that the information sought in the summons was not relevant, or that the information was already in the possession of the government. The motion to quash was denied.

16 Pages. Judge Joseph A. DiClerico, Jr.


TORTS / CONTRACTS

4/1/08 Jules R. Cavadi v. Bank of America, N.A.
Case No. 07-cv-224-PB, Opinion No. 2008 DNH 066

Cavadi sought damages from the Bank of America because the bank allowed a third party to access a safe deposit box that the third party maintained at a Bank of America branch, allegedly in violation of a state court order directing the bank to deny such access. Cavadi moved for judgment on the pleadings as to Count I, which alleged that Bank of America’s failure to comply with the state court order violated unspecified duties owed to him by the bank, and Bank of America moved to dismiss as to the same count. Because Cavadi failed to set forth facts sufficient to establish any duty running from Bank of America to Cavadi, the court denied Cavadi’s motion for judgment on the pleadings and granted Bank of America’s motion to dismiss as to Count I.

10 pages. Judge Paul Barbadoro.


April 2008 Additions

* Published

ATTORNEY’S FEES

4/15/08 Skidds v. SSA
Case No. 05-cv-383-SM, Opinion No. 2008 DNH 079

The court denied Social Security claimant’s requests for attorney’s fees, concluding that although the Commissioner did not prevail, his litigation position and agency action were both "substantially justified" within the meaning of the Equal Access to Justice Act.

6 pages. Chief Judge Steven J. McAuliffe.


 4/24/08 Donovan v. Whalen
Case No. 05-cv-211-SM, Opinion No. 2008 DNH 088

After plaintiff withdrew the few remaining counts in her complaint that survived defendant’s motion to dismiss, defendant moved for an award of attorney’s fees, invoking the "bad faith" exception to the American Rule on attorney’s fees. The court granted the motion in part, concluding that defendant was entitled to recover fees she incurred in attending a final pretrial conference that plaintiff failed to attend. As to the remainder of the fee award sought, the court concluded that defendant failed to carry her substantial burden of demonstrating that plaintiff acted vexatiously, in bad faith, or for wanton or oppressive reasons.

14 pages. Chief Judge Steven J. McAuliffe.


CIVIL PROCEDURE; TRANSFER OF VENUE

4/30/08 Jackson National Life Insurance Co. v. Robert G. Economou, et al.
Case No. 07-CV-259-JL, Opinion No. 2008 DNH 094

In this statutory interpleader action under 28 U.S.C. § 1335, interpleader plaintiff Jackson National Life was dismissed from the case under the customary procedure after depositing into the court the disputed death benefits of an annuity. The decedent’s stepchildren were designated as death beneficiaries, and one of the decedent’s natural children alleged that this designation was the result of abuse, neglect, and undue influence exerted on the decedent by the decedent’s wife (the stepchildren’s mother). The stepchildren’s motion to dismiss on forum non conveniens grounds was dismissed, as that doctrine is applicable only to cases in which the putative transferee venue is abroad. The stepchildren’s motion to transfer venue to the United States District Court for the Middle District of Florida, analyzing nine "private interest" factors and three "public interest" factors under the venue transfer statute, 28 U.S.C. § 1404(a).

18 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS § 1983: PRISONERS

4/8/08 Perfetto v. N.H. State Prison, Warden et al.
Case No. 06-cv-307-JL, Opinion No. 2008 DNH 077

Plaintiff, a New Hampshire State Prison inmate, brought suit alleging a variety of civil rights violations relating to his continued incarceration, including deprivation of sanitary conditions and water, failure to protect, excessive force, denial of adequate medical care, retaliation, denial of access to the courts, and denial of right to petition the government for redress. Defendants moved for summary judgment. After hearing, the court granted defendants’ motion and dismissed all claims without prejudice for the plaintiff’s failure to fully and properly exhaust administrative remedies before putting the claims into suit in federal court.

19 pages. Judge Joseph N. Laplante.


EMPLOYMENT (ADEA)

4/16/08 Budro v. BAE Systems, et al.
Case No. 07-cv-351-SM, Opinion No. 2008 DNH 081

Summary judgment was granted to the former employer in this ADEA case where plaintiff had accepted a supplemental severance package and validly waived any claims arising out of the termination of her employment pursuant to the Older Workers Benefit Protection Act.

17 pages. Chief Judge Steven J. McAuliffe.


FEDERAL RULES OF CIVIL PROCEDURE

4/2/08 Reid v. Strafford County DOC, et al.
Case No. 06-cv-182-SM, Opinion No. 2008 DNH 074

After defendants’ various unopposed motions for summary judgment were granted, plaintiff moved the court for relief from judgment, pursuant to Rule 60(b)(6). Among other things, the court noted that to prevail on a Rule 60(b)(6) motion, a movant must make a suitable showing that he or she has a meritorious claim. Because plaintiff made no such showing, his motion was denied.

7 pages. Chief Judge Steven J. McAuliffe.


HABEAS CORPUS

4/21/08 Chretien v. NH State Prison, Warden
Case No. 07-CV-44-JL, Opinion No. 2008 DNH 084

The petitioner sought habeas corpus relief from his state-law conviction for sexual assault, alleging constitutional errors in evidentiary rulings at trial. Specifically, petitioner challenged, under the Sixth and Fourteenth amendments, the state trial court’s exclusion of: (1) a witness prepared to testify to an alleged consensual sexual encounter with the complainant, followed by a purported false accusation of sexual assault, and (2) cross-examination of the complainant regarding these events. The habeas court granted summary judgment in part and denied it in part. Applying the AEDPA standard of review, the habeas court ruled that the trial court’s exclusion of the proffered witness was not an unreasonable application of clearly established federal law, and granted summary judgment. As for the confrontation clause claim, the habeas court reviewed the issue de novo and denied summary judgment. Noting that the state court never held a "Howard hearing," the habeas court concluded that the record before it was insufficient to determine whether, and to what extent, cross-examination of the complainant regarding the alleged false accusation should have been permitted. An evidentiary hearing will be scheduled to address the issues raised in the court’s order.

27 pages. Judge Joseph N. Laplante.


INJUNCTIONS

4/18/08 Simpson, II v. NH DOC, et al.
Case No. 07-cv-265-SM, Opinion No. 2008 DNH 083

Plaintiff, an inmate at the Northern New Hampshire Correctional Facility, brought suit challenging the conditions of his confinement and seeking declaratory and injunctive relief. Defendants moved to dismiss. The court granted that motion, concluding that plaintiff failed to exhaust available prison administrative remedies, as is required by the Prison Litigation Reform Act.

6 pages. Chief Judge Steven J. McAuliffe.


JURISDICTION

4/18/08 Beane v. Beane, et al.
Case No. 06-cv-446-SM, Opinion No. 2008 DNH 082

Plaintiffs in this case were a Limited Liability Company and one of its members. Because the complaint did not advance any federal claims and complete diversity was absent, the case was dismissed for lack of subject matter jurisdiction, over objections that LLC was a dispensable party entitled to dismiss its claims without prejudice, to preserve diversity jurisdiction.

21 pages. Chief Judge Steven J. McAuliffe.


SOCIAL SECURITY

4/2/08 Barriault v. SSA
Case No. 07-cv-176-SM, Opinion No. 2008 DNH 075

After his application for Social Security disability benefits was denied at the administrative level (for a second time), claimant moved the court to reverse the adverse decision issued by the Administrative Law Judge ("ALJ") or, at a minimum, remand the matter for further proceedings. The court granted that motion, concluding that the ALJ’s most recent determination that claimant was not disabled was at odds with earlier factual findings made by the same ALJ (while reviewing the same application, prior to its first remand). Given the unexplained inconsistencies in the record, the court concluded that remand was in order.

20 pages. Chief Judge Steven J. McAuliffe.



NHLAP: A confidential Independent Resource

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
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer