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Bar News - July 18, 2008


US District Court Decision Listing: June 2008

* Published

ATTORNEY’S FEES

06/13/08 George Tsiatsios v.
Anheuser-Busch, Inc.
Case No. 07-cv-3-JL, Opinion No. 2008 DNH 117

After the plaintiff committed numerous discovery violations, the defendant moved to dismiss the case under Federal Rules of Civil Procedure 37 and 41. After hearing, the court reluctantly denied the motion to dismiss, but ordered the plaintiff to pay the defendant’s litigation costs incurred as a result of the plaintiff’s refusal to participate in discovery. In calculating a reasonable award of fees to out-of-state counsel, the court utilized the prevailing hourly rates in New Hampshire for comparably qualified attorneys.

6 pages. Judge Joseph N. Laplante.


CIVIL PROCEDURE: AMEND-REMAND

06/13/08 Diedre Estes v. Sunbridge
Healthcare Corp.
Case No. 08-cv-25-JL, Opinion No. 2008 DNH 116

The plaintiff, a New Hampshire resident, sued her former employer in state court alleging wrongful termination under New Hampshire common law. The defendants removed the action to federal court, invoking its diversity jurisdiction. Shortly after removal, the plaintiff’s former supervisor, who is also a resident of New Hampshire, was quoted in a local newspaper criticizing the plaintiff for bringing suit. The plaintiff responded with a motion: (1) to amend the complaint to join her former supervisor as a non-diverse defendant, adding a claim of intentional infliction of emotional distress, and (2) to remand the action to the state court for lack of complete diversity. See 28 U.S.C. _1447(e). The court allowed both motions, reasoning that the plaintiff’s primary motivation in joining her former supervisor appears to be to seek recovery for the post-removal statements, and not to divest the court of jurisdiction.

10 pages. Judge Joseph N. Laplante.


06/13/08 Stephen Drelick et al v.
Innovative Development Co., et al.
Case No. 08-cv-112-JL, Opinion No. 2008 DNH 118

The plaintiffs brought an action in New Hampshire state court against the defendants, a mortgage brokerage firm and its principals, alleging the unlawful refusal to disburse over $122,000 in loan proceeds. The defendants removed the action to federal court, invoking its diversity jurisdiction. Just days after removal, the plaintiffs responded with a motion to: (1) amend the complaint to join two non-diverse defendants, and (2) remand the action to the state court based on the resulting lack of diversity jurisdiction. See 28 U.S.C. _ 1447(e). After considering a variety of equitable factors, the court denied the motion, convinced that the primary purpose for the plaintiffs’ proposed joinder was to destroy the court’s jurisdiction. Included in its reasoning, the court noted that the plaintiffs knew of the identity and involvement of the non-diverse defendants at the time the state court writ was filed, but failed to name either party as a defendant until the case was removed to federal court.

12 pages. Judge Joseph N. Laplante.


CRIMINAL CASES

6/23/08 United States v. Philbrick
Case No. 06-cr-35-2-SM, Opinion No. 2008 DNH 119

Defendant moved to amend his 37-month incarceratative sentence based on the U.S. Sentencing Commission’s retroactive amendment of the "crack" cocaine guideline, effective March 3, 2008. The government objected, noting that defendant was originally given a Booker sentence, by which the court already took into account the then-proposed guideline amendment. As the court noted, however, there were several other factors that counseled in favor of a Booker sentence and, with the recent amendments to the Guidelines, defendant was entitled to the benefit of re-sentencing. And, because defendant’s newly-calculated Guideline sentence called for imprisonment for 37 months (at the low end of the range), the court concluded that defendant was entitled to a modest deviation from that Guideline sentence, based on the section 3553(a) factors discussed at the original sentencing hearing. Accordingly, the court re-sentenced defendant to a term of 30 months imprisonment.

6 pages. Chief Judge Steven J. McAuliffe.


ENVIRONMENTAL ISSUES

6/6/08 Sierra Club v. Wagner, et al.
Case No. 07-cv-257-SM, Opinion No. 2008 DNH 113

Plaintiffs challenged the Forest Service’s approval of two forest resource management projects in the White Mountain National Forest, asserting that the Service failed to comply with applicable federal statutes and regulations when it authorized those projects. After reviewing the voluminous administrative record, the court disagreed, concluding that the Forest Service applied the appropriate law, considered the relevant factors, and articulated a rational connection between the facts found and the choices made. Accordingly, plaintiffs failed to carry their burden of demonstrating that the Forest Service had acted either arbitrarily or capriciously. Defendants’ motion for summary judgment granted.

57 pages. Chief Judge Steven J. McAuliffe.


IMMIGRATION / JURISDICTION: SUBJECT MATTER

6/12/08 Kuan Zhou v. Federal Bureau of
Investigation, Director, et al.
Case No. 07-cv-238-PB, Opinion No. 2008 DNH 115

Kuan Zhou sought an order compelling the United States Citizenship and Immigration Service ("USCIS") to adjudicate his I-485 application for adjustment of status, which had remained unadjudicated for approximately three years. The government moved to dismiss, arguing that 8 U.S.C. § 1252(a)(2)(B)(ii) stripped the court of jurisdiction to hear any case challenging the pace at which USCIS decides adjustment of status applications. The government further argued that even if the jurisdictional bar did not apply, Zhou’s allegations did not raise his right to relief above the speculative level. As to the jurisdictional argument, the court held that because the Immigration and Nationality Act does not expressly grant discretionary authority to any agency to withhold or delay a decision on an adjustment of status application, § 1252(a)(2)(B)(ii) did not strip the court of jurisdiction to review Zhou’s complaint. As to the substantive argument, the court held that USCIS had a duty to adjudicate Zhou’s application "within a reasonable time" under the Administrative Procedure Act, 5 U.S.C. § 555(b). The court found that Zhou’s time-based allegations (that his application had been pending for approximately three years, and was approximately eighteen months behind other I-485 applications being processed at the same service center) were alone sufficient to raise his claim above the level of mere speculation. Accordingly, the court denied the government’s motion.

21 pages. Judge Paul Barbadoro.


INSURANCE LAW: COVERAGE*

06/24/08 Amherst Country Club v. Harleysville
Worcester Insurance Company,
Case No. 07-cv-136-JL, Opinion No. 2008 DNH 120

After the swimming pool on its premises was destroyed in the Mother’s Day Flood of 2006, Amherst Country Club petitioned the New Hampshire Superior Court for declaratory judgment that its insurer, Harleysville, was obligated to cover the loss. Harleysville removed the action to federal court. On cross motions for summary judgment on the coverage issue, the court ruled that (1) the language of the "earth movement" and "water" exclusions under the policy clearly and unambiguously excluded coverage, (2) under New Hampshire law, the "efficient proximate cause" doctrine applies to certain "multiple-causation" coverage questions, but did not apply in this case because neither the cause argued for by the Club (attendant’s draining of the pool) nor the cause argued for by the insurance company (hydrostatic ground water pressure) could have caused the damage to the pool on its own, and (3) that the "anti-concurrent causation" clause in the policy, through which the parties "contracted around" the efficient proximate cause doctrine, was enforceable under New Hampshire law under Bates v. Phenix Fire Ins. Co., N.H. ___, 943 A.2d 750 (N.H. 2008).

37 pages. Judge Joseph N. Laplante.


INTELLECTUAL PROPERTY; TRADEMARK*

6/26/08 Joseph A. Ligotti, Jr. v. David Garofalo
Case No. 08-cv-119-JL, Opinion No. 2008 DNH 123

The parties cross-moved for preliminary injunctive relief, each claiming to have the superior right in the unregistered service mark "The Guy from Boston," which had been used to designate short comedic routines and interactions broadcast over the Internet and on television. After the defendant conceived of the mark as a means of promoting his retail cigar business, the parties worked together for a period in providing the services, with the plaintiff playing the role of "The Guy from Boston" and the defendant providing some of the material, as well as the physical and financial support for the venture. But the parties eventually had a falling out, with each using the mark in competition with the other. Applying the test for ownership of a mark following the dissolution of a joint endeavor from Bell v. Streetwise Records, Ltd., 640 F. Supp. 575 (D. Mass. 1986), the court ruled that the plaintiff had shown the greater likelihood of success on his claim to ownership, because (1) the mark had become known for the plaintiff’s style and personality in performing the routines, rather than for their content, (2) the plaintiff, not the defendant, controlled those qualities, and (3) there was no credible evidence that the parties had ever reached agreement on ownership of the mark. Because "The Guy from Boston" is not an inherently distinctive mark, the court rejected the defendant’s claim that he had made the first commercial use of it before the start of any joint endeavor, given the absence of evidence that the mark had achieved secondary meaning during that time.

59 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY

6/6/08 Hanson v. SSA
Case No. 07-cv-106-SM, Opinion No. 2008 DNH 114

Claimant moved to reverse the Social Security Commissioner’s decision denying his application for disability insurance benefits, asserting that he was disabled due to shoulder pain, numbness in some of his fingers, and anxiety. After reviewing the administrative record, the court concluded that the Commissioner’s decision was supported by substantial evidence and, therefore, claimant had failed to demonstrate that he was entitled to the relief sought.

18 pages. Chief Judge Steven J. McAuliffe.

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