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Bar News - June 20, 2008


US District Court Decision Listing: May 2008

* Published

ABSTENTION
5/15/08 G.R. Technology, Inc. v. Brown, Olson & Gould, P.C.
Case Nos. 07-cv-421-PB, 08-cv-68-PB, Opinion No. 2008 DNH 103

Defendants moved to stay two consolidated cases until resolution of a related action in Vermont state court, based on the abstention doctrine in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). The court denied the motions and concluded that the case did not present the extraordinary circumstances necessary to warrant a stay pursuant to Colorado River. The court evaluated the relevant factors and held that a stay was not justified because resolution of the state court litigation would not necessarily dispose of the federal litigation, the case raised no difficult issues of state law or policy, and a stay could delay plaintiffs from obtaining complete relief. The court also noted that the defendants failed to produce clear justification for a stay, other than the ordinary concern for judicial efficiency. 6 pages. Judge Paul Barbadoro.


ATTORNEY FEES; HIGHER EDUCATION ACT
5/23/08 United Student Aid Funds v. Prodanis, Inc.
Case No. 07-cv-214-JL, Opinion No. 2008 DNH 108

The plaintiff, a loan guaranty agency, brought suit against the defendant for failing to comply with a wage withholding order issued pursuant to the Higher Education Act of 1965, 20 U.S.C. § 1095a. The defendant stipulated to its liability at the Preliminary Pretrial Conference presided over by the District Judge. Plaintiff sought an award of attorney’s fees and costs arguing that under § 1095a, the court lacked the discretion to assess the reasonableness of the litigation costs requested by the prevailing party. Rejecting this argument, the court awarded only those fees and costs that were reasonably expended by plaintiff’s attorneys in pursuing its claim, and excluded all work that was unnecessary or duplicative. In determining a reasonable hourly rate for out-of-state attorneys, the court applied the billing rate of plaintiff’s local counsel, as opposed to national counsel located in Philadelphia, PA. 12 pages. Judge Joseph N. Laplante.


CIVIL PROCEDURE: VENUE, FORUM NON CONVENIENS
05/28/08 Franklin Philipps, as the Natural Parent of Ayandi Philipps, Yvonne Lazare, as the Natural Parent of Ayandi Philipps, Joseph H. Ganguzza, as the Personal Representative of the Estate of Ayandi Philipps, Deceased, and Franklin Philipps, individually v. Hubert Talty
Case No. 07-cv-382-JL, Opinion No. 2008 DNH 110*

In this diversity-based wrongful death case against a New Hampshire defendant arising out of an automobile accident on the French half of the Carribean island of St. Martin, the defendant moved to dismiss under the common law doctrine of forum non conveniens. Applying the two part analysis developed by the Supreme Court, the court granted the dismissal based on its findings that (1) the French department of St. Martin was an "available forum," and (2) both private-interest and public-interest factors strongly favored St. Martin as a preferable forum. The court conditioned the dismissal, however, on (a) the defendant’s submission to the jurisdiction of the St. Martin court and physical appearance therein; (b) the waiver of any appropriate statute-of-limitations defense caused by the delay; and (c) a letter of guaranty from the defendant’s insurance carrier covering any St. Martin judgment up to the applicable policy limit.

17 pages. Judge Joseph N. Laplante.


CIVIL PROCEDURE: PERSONAL JURISDICTION, SUBJECT MATTER JURISDICTION, VENUE, LEGAL MALPRACTICE
5/16/08 Richard Adam v. Thomas Arthur Hensley
Case No. 07-cv-338-JL, Opinion No. 2008 DNH 104

The pro se plaintiff brought suit against his former attorney, a resident of Massachusetts licensed to practice law in that state, for alleged legal malpractice relating to the defendant’s representation of the plaintiff in Hawaii. Defendant moved to dismiss the complaint on various grounds. After hearing, the court granted defendant’s motion to dismiss for lack of personal jurisdiction, improper venue, and lack of subject matter jurisdiction.

16 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS BIVENS: PRISONERS / FEDERAL TORT CLAIMS ACT
5/13/08 Schomaker v. United States
Case No. 07-cv-164-PB, Opinion No. 2008 DNH 100

Plaintiff, a prisoner in federal custody, filed a suit asserting Bivens, Federal Tort Claims Act ("FTCA"), and state law claims to recover damages for the wrongful retention and destruction of his property by the U.S. Attorney’s Office for the District of New Hampshire. The parties filed cross motions for summary judgment. The court granted summary judgment to Defendants on Plaintiff’s Fourth Amendment Bivens claim on statute of limitations grounds. The court granted summary judgment to Defendants on Plaintiff’s Fifth Amendment Bivens claim on statute of limitations grounds and, insofar as Plaintiff’s claim was founded on the destruction rather than the mere retention of his property, because there was no evidence that Defendants had acted with a mental state greater than negligence. After folding Plaintiff’s state law claims into his FTCA claims, the court granted summary judgment to Defendants on Plaintiff’s FTCA claims for conversion, theft by misapplication of property, and fraud because, respectively, the statute of limitations had expired, Plaintiff lacked standing to enforce a criminal statute in a civil proceeding, and there was insufficient evidence to support Plaintiff’s claim.

25 pages. Judge Paul Barbadoro.


CIVIL RIGHTS; PRISONER; CIVIL PROCEDURE; MOOTNESS
05/14/08
Case No. 06-cv-464-JL, Opinion No. 2008 DNH 101*

After pro se petitioner Towle brought a § 1983 civil rights action against the New Hampshire State Prison alleging that Policy and Procedure Directive 7.09 impermissibly infringed upon his First Amendment right to freedom of association by impermissibly restricting visitation with his wife, the Department of Corrections amended PPD 7.09 to eliminate the interpretation that had prohibited the desired visitation, and permitted the requested visitation. The DOC then moved for summary judgment on the grounds that the petition was moot. Although the voluntary cessation of offending conduct will not normally render a case moot, an exception exists where the cessation is the result of a legislative or administrative change in the law, making it unlikely that the offending conduct will be resumed. Because the petition did not assert a claim for money damages, and it was limited to equitable and declaratory relief, the amendment to PPD 7.09 rendered the case moot, resulting in summary judgment in favor of the respondents.

17 pages. Judge Joseph N. Laplante.


COMMUNICATIONS DECENCY ACT; INTELLECTUAL PROPERTY
05/08/08 Jane Doe v. Friendfinder Network, Inc. and Various, Inc.
Case No. 07-cv-286-JL, Opinion No. 2008 DNH 098

The plaintiff moved for reconsideration of the court’s order dismissing her claims for defamation and related torts against the operators of on-line dating sites on the basis of the Communications Decency Act of 1996, which generally bars state-law claims against interactive computer services for publishing content obtained from another information content provider. Because the defamatory content appearing on the sites had been provided by a third party, the court ruled that the plaintiffs’ claims were barred by the Act, despite her allegations that the defendants had consciously "re-posted" the content. The motion for reconsideration was denied.

5 pages. Judge Joseph N. Laplante.


CONTRACTS
5/27/08 Lakeview Neurorehabilitation v. Care Realty, et al.
Case No. 07-cv-303-SM, Opinion No. 2008 DNH 109

Defendants moved for partial summary judgment on plaintiffs’ breach-of-contract claim, on grounds of repudiation. The court denied defendants’ motion because, on the undisputed factual record, the parties had never entered into the agreement defendants claimed plaintiffs had repudiated.

3 pages. Chief Judge Steven J. McAuliffe.5/28/08 Lakeview Neurorehabilitation v. Care Realty, et al.


Case No. 07-cv-303-SM, Opinion No. 2008 DNH 111

In an action for breach of contract involving interlocking leases for facilities in two states, defendants’ motion to dismiss for lack of personal jurisdiction was denied because defendants had waived their objection to personal jurisdiction by asking the New Hampshire Superior Court, prior to removal, for relief directed to both in-state and out-of-state leased facilities.

18 pages. Chief Judge Steven J. McAuliffe.


EVIDENCE; EXPERT TESTIMONY

05/16/08 Douglas Warford, Isabelle Taylor, LLC, and CNA Insurance Company, a/s/o Isabelle Taylor, LLC and a/a/o Douglas Warford v. Industrial Power Systems, Inc. and A. F. Theriault & Son, Ltd.

Case No. 06-cv-463-JL, Opinion No. 2008 DNH 105*

The defendants moved in limine to prevent the plaintiffs’ designated experts from testifying at the admiralty and maritime bench trial of the plaintiffs’ products liability action, arguing that the experts lacked the qualifications and their methodology lacked the theoretical basis required by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The court ruled that an electrician experienced in designing marine switchboards and installing marine generators could give expert testimony as to the quality of the defendants’ work in that regard, even though (1) he had no background in electrical engineering, (2) his experience was limited to devices less complicated than the ones at issue in the case, and (3) he had relied on that experience, rather than any particular methodology, in formulating his opinions. The court also ruled that an experienced investigator of marine accidents could offer expert testimony as to the liability for and the cause of the accident at issue in the case, even though (1) he had no particular training or experience in electrical matters and (2) he had relied on the work of the other designated expert in forming his own opinion on those matters in the case at hand. The motion was denied without prejudice to renewal of the defendants’ objections at trial.

18 pages. Judge Joseph N. Laplante.


INTELLECTUAL PROPERTY; PATENT CLAIM CONSTRUCTION
05/08/08 Best Management Products, Inc. v. New England Fiberglass, LLC, et al.
Case No. 07-CV-151-JL, Opinion No. 2008 DNH 099*

Plaintiff Best Management Products, Inc. sued defendants New England Fiberglass and Mark Richardson for patent infringement regarding an oil and debris separator to be installed in catch basins. The parties differed over the meaning of the phrase "a vent mounted on the wall of said hood and extending upwardly therefrom" as it appears in several claims of the patent. After briefing and a "Markman" hearing (see 517 U.S. 370 (1996)), the court construed the claim to mean "a separate hollow fitting affixed to the wall of said hood, said fitting having a lower end communicating with a hole in the wall of the outlet hood and an upper end extending upwardly from said hood to a position above said hood." In construing the claim, the court relied solely on intrinsic evidence (the claims themselves, the specifications, and patent prosecution history) and disregarded all extrinsic evidence offered by the litigants. In doing so, the court rejected New England Fiberglass’ claim that Best Management Products was estopped from seeking its proffered construction by the prosecution history of the patent, as well as Best Management Products’ argument claim that it should apply the doctrine of claim differentiation.

27 pages. Judge Joseph N. Laplante.


JURISDICTION
05/20/08
Case No. 08-cv-115-JL, Opinion No. 2008 DNH 106

The defendant, the Hillsborough County Superior Court, moved to dismiss the plaintiff’s claims for violations of his federal constitutional right to due process and other wrongs arising principally out of the Superior Court’s preliminary refusal to modify its existing order governing custody of the plaintiff’s minor child. While the defendant argued lack of subject-matter jurisdiction on the basis of the domestic relations exception and the Rooker-Feldman doctrine, the court decided to abstain from hearing the plaintiff’s claims for equitable relief under Younger v. Harris, 401 U.S. 37 (1971), because they would interfere with ongoing state child custody proceedings. The court also dismissed the plaintiff’s claim for damages as barred by absolute judicial immunity, dismissed the plaintiff’s claim seeking to nullify his divorce decree as barred by Rooker-Feldman, and declined to exercise supplemental jurisdiction over the plaintiff’s state-law claims.

9 pages. Judge Joseph N. Laplante.

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