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Bar News - October 17, 2008


US District Court Decision Listing: September 2008

* Published

ADA; REHABILITATION ACT
9/9/08 Cindy Columbia v. John B. Gregory, D.P.M., and Active Ankle & Foot Center, P.L.L.C.
Case No. 08-cv-98-JD, Opinion No. 2008 DNH 167

The plaintiff, who is deaf, sued the defendants under the ADA and the Rehabilitation Act, alleging that the defendant doctor and the clinic discriminated against her by failing to provide an interpreter after her first visit and retaliated against her by cancelling her surgery and refusing to treat her. The defendants moved for summary judgment, asserting that the ADA claim was moot because they were providing an interpreter for the plaintiff and that they were exempt from the Rehabilitation Act. The court concluded that the defendants had not shown that the ADA claim was moot because the voluntary cessation of challenged conduct does not prevent a defendant from resuming the same conduct. The court declined to determine whether the defendants were liable under the Rehabilitation Act because the parties provided insufficient briefing on the scope and effect of a notice issued by the HHS Office of Human Rights. The motion for summary judgment was denied. 13 pages. Judge Joseph A. DiClerico, Jr.


CIVIL PROCEDURE: PERSONAL JURISDICTION
9/30/08 Clearview Software and Blue Ivy Solutions v. Christopher Ware
Case No. 07-CV-403-JL, Opinion No. 2008 DNH 182

Following removal of the plaintiff’s state court writ of summons, the out-of-state defendant moved to dismiss the complaint, asserting that he lacks sufficient minimum contacts with New Hampshire to be subject to the personal jurisdiction of the District Court. The plaintiffs objected, arguing that the defendant’s in-forum contacts render him subject to this court’s general and specific jurisdiction. Alternatively, the plaintiffs requested leave of court to conduct discovery on the issue of personal jurisdiction. Concluding that the plaintiffs made a colorable (yet not sufficient) case for the existence of in personam jurisdiction, the court denied the defendant’s motion and granted the plaintiffs leave to conduct limited jurisdictional discovery. 7 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS § 1983: PRISONER
9/19/08 Potocki v. Strafford County HOC
Case No. 07-cv-71-SM, Opinion No. 2008 DNH 174

Pro se plaintiff was repeatedly warned (by both the court and opposing counsel) that his failure to comply with court-ordered discovery could result in the dismissal of his complaint. Nevertheless, he continued to refuse to produce such discovery and offered neither an excuse nor an explanation for his conduct. Accordingly, the court granted defendants’ motion to dismiss his claims with prejudice, concluding, among other things, that it was not unreasonable to infer that plaintiff was no longer interested in pursuing his claims. 7 pages. Chief Judge Steven J. McAuliffe.


CONTEMPT
9/30/08 FTC v. Odysseus Marketing
Case No. 05-cv-330-SM, Opinion No. 2008 DNH 181

The Federal Trade Commissioner sought to have Walter Rines, Online Turbo Merchant, Inc. ("OTM"), and Sanford Wallace held in civil contempt for violating a permanent injunction entered in this case is 2006. The conduct in which defendants engaged involved misdirecting traffic from Web pages operated by MySpace to advertising sites operated by Rines and OTM. Once redirected to Rines’ sites, users were subjected to a "phishing" scheme, designed to obtain personal information and private passwords. Concluding that the FTC proved, by clear and convincing evidence, that defendants violated several provisions of the injunction, the court granted the FTC’s motion for contempt. 13 pages. Chief Judge Steven J. McAuliffe.


EMPLOYMENT: AGE DISCRIMINATION
9/2/08 John Burke v. Ceridian Corporation
Case No. 07-cv-207-JL, Opinion No. 2008 DNH 165

The court granted the defendant employer’s Rule 12(c) motion for judgment on the pleadings with respect to plaintiff employee’s claim for breach of employment contract. (Plaintiff conceded judgment on the pleadings with respect to its wrongful discharge and tortious interference claims.) Employee’s allegations that his superiors placed him on "performance improvement plans" did not establish contractual undertakings sufficient to convert at-will employment arrangement to employment contract, and thus complaint did not allege a breach of contract claim as a matter of law. Plaintiff’s statutory age discrimination claim remains pending. 13 pages. Judge Joseph N. Laplante.


EMPLOYMENT LAW, TITLE VII: EVIDENCE
9/10/08 Nicole L’Etoile v. New England Finish Systems, Inc.
Case No. 06-cv-390-JL, Opinion No. 2008 DNH 168*

The parties moved to exclude a variety of evidence from the then-upcoming trial of the plaintiff’s claims of sex discrimination, including a hostile work environment, and retaliation against her former employer. The court ruled that (1) the New Hampshire Human Rights Commission’s finding of no probable cause for the plaintiff’s charges was inadmissible at trial under Rule 403 because concerns of wasting time at trial rehashing the evidence presented to the Commission minimally probative value of its one-sentence finding; (2) evidence of the defendant’s treatment of other female employees, who worked there both before and after the plaintiff, was admissible to show its intent in dealing with the plaintiff under Rule 404(b), but evidence of discrimination allegedly experienced by women while working for other companies in the same business (construction) was inadmissable; (3) evidence of the plaintiff’s positive work performance at prior employers was inadmissible, under Rule 404(b), to show a similar work performance for the defendant; (4) statements by fellow employees that a particular foreman did not want women on his jobs were inadmissible to show his reputation, which was not at issue, under Rule 404(a); and (5) evidence of claims that plaintiff originally brought as part of her lawsuit, but dropped before trial, were inadmissible on the issue of her credibility, given the presence of other plausible explanations for dropping claims before trial and the court’s concern over discouraging the practice. 21 pages. Judge Joseph N. Laplante.


HABEAS CORPUS
9/23/08 Roland Chretien v. New Hampshire State Prison
Case No. 07-cv-44-JL, Opinion No. 2008 DNH 175

After the evidentiary hearing ordered by the court in consideration of the Warden’s motion for summary judgment, see 2008 DNH 084, the court granted the petition for the writ of habeas corpus and vacated the conviction without prejudice to retrial. The habeas court found that the petitioner’s Sixth Amendment confrontation right had been violated under the First Circuit’s holding in White v. Coplan, 399 F.3d 18 (1st Cir. 2005). 16 pages. Judge Joseph N. Laplante.


9/30/08 Dwayne Hearns v. New Hampshire State Prison, Warden
Case No. 05-cv-413-JL, Opinion No. 2008 DNH 170

The pro se petitioner sought habeas corpus relief from his state-law convictions on multiple counts of aggravated felonious sexual assault and simple assault, alleging that: (1) there were multiple instances of prosecutorial misconduct at trial, (2) he was compelled to choose between his speedy trial right and right to present certain exculpatory evidence, (3) trial counsel was ineffective, and (4) the trial court improperly imposed consecutive sentences for two of his sexual assault convictions. On cross-motions for summary judgment, the habeas court concluded that although some of the prosecutor’s statements during closing argument were improper, those errors did not so taint the trial process that the petitioner is entitled to a new trial. Likewise, the trial court did not err in requiring that the State be granted a continuance to investigate certain evidence proffered by the defense on the eve of trial as a condition to entertaining its admissibility. The court also concluded that defense counsel’s representation was not ineffective. Finally, the court concluded that New Hampshire’s statutory sentencing scheme did not deprive the petitioner of his right to fair notice, and that imposition of the consecutive sentences did not violate the separation of powers doctrine. The habeas court also rejected the petitioner’s claim that the trial court lacked the statutory authority to impose those sentences and that his sentences were unconstitutionally disproportionate. Therefore, the court granted the respondent Warden’s motion for summary judgment and denied the petitioner’s motion for summary judgment, resulting in a denial of the habeas petition. 64 pages. Judge Joseph N. Laplante. 64 pages. Judge Joseph N. Laplante.


PRISONER RIGHTS, CIVIL RIGHTS
9/2/08 Miguel Ortiz v. Blaisdell, Warden, Northern New Hampshire Correctional Facility
Case No. 05cv355-JL, Opinion No. 2008 DNH 166

The petitioner sought federal habeas relief from his state-court convictions and sentences for distributing heroin. The federal habeas court ruled that (1) though the petitioner had failed to raise several claims on direct appeal to the state supreme court, the only claim that was procedurally defaulted was the one the state habeas court had rejected on that basis, and not the other claims, which the state habeas court either denied on the merits or ignored, and (2) the petitioner’s claims had no merit, including his claim that the superior court improperly refused to allow him to call a witness who had not been disclosed to the state until the first day of trial. 27 pages. Judge Joseph N. Laplante.


PRODUCTS LIABILITY
9/16/08 Barrett v. Ambient Pressure Diving, Ltd.
Case No. 06-cv-240-SM, Opinion No. 2008 DNH 172

In this products liability action, which involves the death of a diver while using an underwater breathing apparatus manufactured in England, the court denied defendant’s motion to apply English law, denied plaintiff’s motion for default judgment based upon spoliation of evidence, and granted plaintiff’s motion for summary judgment on defendant’s counterclaims for fraud on the court and spoliation of evidence. 12 pages. Chief Judge Steven J. McAuliffe.


REMOVAL (REMAND)
9/26/08 Mulholland v. Morin, et al.
Case No. 08-cv-254-SM, Opinion No. 2008 DNH 176

Foreign defendant removed this proceeding from the state superior court, invoking the court’s diversity jurisdiction, and then sought severance of plaintiff’s claims against it from those claims plaintiff advanced against its co-defendant. But, because the plaintiff and the other defendant are both residents of New Hampshire, the parties were not diverse. Accordingly, the court remanded the action to state court and suggested that if defendant believed it was appropriate to sever plaintiff’s claims against it from those against its co-defendant, it should seek such relief in state court. Then, if severance were granted, there would be complete diversity in the case against the foreign defendant and (if it desired) it could properly remove that proceeding to federal court. 5 pages. Chief Judge Steven J. McAuliffe.


SOCIAL SECURITY
9/16/08 Buxton v. SSA
Case No. 08-cv-20-SM, Opinion No. 2008 DNH 171

Claimant filed an application for both Supplemental Security Income ("SSI") benefits and Disability Insurance Benefits ("DIB") and. Her application for the former was granted, but her application for DIB was denied. In concluding that claimant was not entitled to DIB, the ALJ determined that, while she was disabled (for purposes of SSI) as of January 1, 2005, she was not disabled just three months earlier, on September 30, 2004 - her date last insured for purposes of DIB. After reviewing the record and the arguments advanced by the parties, the court concluded that, given the severity of claimant’s impairments, the ALJ erred by using the Grid as a "framework" to guide his disability determination. Instead, the ALJ should have called upon the expertise of a vocational expert. Accordingly, the court remanded the case for further proceedings. 17 pages. Chief Judge Steven J. McAuliffe.


9/02/08 Kathleen L. Price v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 07-cv-166-PB, Opinion No. 2008 DNH 164

Kathleen L. Price moved to reverse the Commissioner’s denial of her application for disability insurance benefits under the Social Security Act. The administrative law judge’s ("ALJ") decision to deny benefits rested in part on the apparent lack of evidence of certain symptoms of depression. The court reversed the ALJ’s ruling in part and remanded the case to the Social Security Administration under sentence four of 42 U.S.C. § 405(g). The court found that the ALJ breached his duty to develop a full and fair record from which to make a reasonable determination regarding Price’s disability because Price was unrepresented during the administrative law hearing, a gap existed in the record, the ALJ was aware of that gap, it would not have required undue effort for the ALJ to obtain the missing records, and the ALJ’s decision to deny benefits might reasonably have been different had the missing records been obtained.

Price also argued that the case should be remanded because (1) her decision not to hire an attorney or other representative was not knowing and voluntary, and (2) the ALJ failed to accord the proper weight to certain medical assessments of Price’s non-exertional limitations. The court found the first argument meritless and did not consider the second argument because it was mooted by the need to consider the evidence on remand. 20 Pages. Judge Paul Barbadoro.


9/30/09 Richard Jenkerson v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 07-cv-217-PB, Opinion No. 2008 DNH 177

Richard Jenkerson sought review of the Commissioner’s decision not to reopen the determinations denying his previous applications for social security benefits. The Commissioner moved to dismiss for lack of subject matter jurisdiction. A discretionary decision not to reopen a prior determination cannot be reviewed as a final decision unless the claimant challenges the decision on colorable constitutional grounds. The court held that it lacked jurisdiction to consider Jenkerson’s Fifth Amendment due process claim regarding inadequate notice of the consequences of failing to seek reconsideration or appeal because there was no factual dispute to support the claim that Jenkerson received a constitutionally deficient notice. However, the court held that it had jurisdiction to consider whether substantial evidence supported the administrative law judge’s ("ALJ") determination under SSR 91-5p that Jenkerson had sufficient mental capacity to appeal the prior decisions because Jenkerson alleged a colorable constitutional claim that he suffered from a mental impairment during the time for appealing the decisions while he was not represented by counsel. The court also held that the ALJ did not constructively reopen Jenkerson’s application on the merits. 9 Pages. Judge Paul Barbadoro.


SUBJECT MATTER JURISDICTION
9/12/08 Marie Miller, Dorothy Lafortune, Barbara Batson, and Carl Weston v. Scott Roberge
Case No. 08-cv-293-JL, Opinion No. 2008 DNH 170

Pro se plaintiffs brought this action, pleading as a "Federal Civil Rights Complaint Freedom of Speech and "Conspiracy/Obstruction of Justice" against Scott Roberge, the Police Chief of Farmington, New Hampshire. The complaint alleged a variety of civil rights violations and various acts of malfeasance. The plaintiffs brought the complaint as the "Next Friend" of plaintiff Miller’s sons who are currently detained awaiting trial on state criminal charges in New Hampshire. Roberge filed a motion to dismiss all claims and requested that the court impose Rule 11 sanctions on the plaintiffs. The court granted the motion to dismiss concluding that the plaintiffs lacked standing because their claims were based on allegations of injury to others. The court denied the request for sanctions on procedural grounds. 8 pages. Judge Joseph N. Laplante.


SUBJECT MATTER JURISDICTION: ICCTA
9/30/08 New England Southern Inc. v. Boston and Maine Corporation, Springfield Terminal Railway Co., and Pan Am Railways, Inc.
Case No. 07-CV-403-JL, Opinion No. 2008 DNH 179

In this federal-question based breach of contract action brought against the defendants for its alleged nonpayment of monies owed under a railroad lease, the plaintiff sought to invoke the court’s jurisdiction under certain provisions of the Interstate Commerce Commission Termination Act of 1995. The defendants filed a motion to dismiss for lack of subject matter jurisdiction. Because the Act expressly confers exclusive jurisdiction over claims involving "transportation by rail carriers" on the Surface Transportation Board, and because the Act does not expressly provide for the types of claims brought by the plaintiff, the court ruled that it lacked jurisdiction, granted the defendant’s motion, and dismissed the complaint. 10 pages. Judge Joseph N. Laplante.



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