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Bar News - November 14, 2008

US District Court Decision Listing: October 2008

September 2008 (One Late Entry)

* Published

10/23/08 Brown v. Reifler, et al.
Case No. 08-cv-272-SM, Opinion No. 2008 DNH 195

The parties appealed the bankruptcy court’s resolution of this adversary proceeding, raising issues related to spoliation of the evidence, credibility of witnesses, statutes of limitations, and the applicability of constructive and resulting trusts. After carefully reviewing the bankruptcy court’s decision, the court affirmed it in all respects, except one. It remanded the proceeding to the bankruptcy court so that it might conform its final judgment in favor of the trustee to the applicable statute providing for the addition of pre-judgment interest. 15 pages. Chief Judge Steven J. McAuliffe.

10/15/08 AMC Mortgage Services v. Joy A. Chase
Case No. 08-cv-313-JL, Opinion No. 2008 DNH 190

The creditor/appellant, AMC Mortgage Services, appealed the decision of the bankruptcy court concluding that AMC Mortgage’s appeal of a prior ruling was untimely and refusing to grant an extension of the appeal period because AMC Mortgage did not demonstrate excusable neglect. See Fed. R. Bankr. P. 8002. AMC Mortgage also appealed the bankruptcy court’s order denying its motion to reconsider or amend that court’s prior order. The district court affirmed both orders. First, the district court concluded that AMC Mortgage improperly calculated the appeal period and its appeal was untimely filed. See Fed. R. Bankr. P. 9006. The district court also determined that the bankruptcy court did not err in concluding that the untimely filing was not a product of excusable neglect because inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect. See Fed. R. Bankr. P. 8002(c)(2). Finally, the district court upheld the decision of the bankruptcy court denying AMC Mortgage’s motion to reconsider because AMC Mortgage failed to demonstrate either a manifest error of law or present newly discovered evidence justifying reconsideration. See Fed R. Civ. P. 59(e). 13 pages. Judge Joseph N. Laplante.

10/20/08 Douglas Warford et al. v. Industrial Power Systems, Inc.
Case No. 06-cv-463-JL, Opinion No. 2008 DNH 192

The plaintiff, a ship’s engineer on a fishing vessel who had been injured by an explosion in its electrical panel, brought a products liability action against the manufacturer of the panel and the installer of other components of the vessel’s electrical system. Following a four-day bench trial, the court ruled that (1) the defendants were not responsible for a defect in one of the vessel’s generators that caused the operational problem the plaintiff was investigating when the explosion occurred, (2) even if they were, the plaintiff’s own careless actions in working in the panel were a superseding cause of his injury, relieving the defendants of any liability, (3) the defendants, who merely installed the defective generator, were not liable as a matter of law under theories of strict liability or breach of warranty, and (4) the design of the panel was not defective. 34 pages. Judge Joseph N. Laplante.

10/14/08 Monday v. Potter, et al.
Case No. 07-cv-226-SM, Opinion No. 2008 DNH 189

In this Title VII action, the court granted defendant’s motion for summary judgment because the plaintiff produced no evidence that the reason given for his termination - failure to follow instructions - was a pretext intended to hide discrimination based on race or national origin. 13 pages. Chief Judge Steven J. McAuliffe.

10/22/08 J.P.E.H. v. Hooksett School
District, et al.
Case No. 07-cv-276-SM, Opinion No. 2008 DNH 194

The defendant school district’s motion to dismiss was granted as to requests for relief it can no longer provide (such as a student evaluation), due to the plaintiff’s son’s enrollment in private school. The motion was denied, however, to the extent the defendant argued that the plaintiff failed to exhaust her administrative remedies by failing to ask for reimbursement of private-school tuition expenses she had yet to incur. 8 pages. Chief Judge Steven J. McAuliffe.

9/17/08 Robert P. DesRoches v. John E. Potter, Postmaster Gen., United States Post Office
Case No. 05-cv-88-PB, Opinion No. 2008 DNH 173

Robert P. DesRoches brought an action against John E. Potter, Postmaster General, alleging that Potter violated the Rehabilitation Act by not promoting DesRoches to an open position with the United States Post Office. DesRoches was out of work on leave without pay at the time the position became available. Potter moved for summary judgment. The court found that DesRoches was unable to reconcile his claim of disability in a previous workers’ compensation application with his contradictory assertion that he was physically able to perform the functions of the open position. As a result of DesRoches’ failure to put forth any evidence suggesting that he was able to meet the physical demands of the position in question with or without accommodation, Potter’s motion for summary judgment was granted. 14 pages. Judge Paul Barbadoro.

10/2/08 United States of America v. Nancy R. Berry, Individually and as Fiduciary for the Estate of James A. Berry
Civil No. 06-cv-211-JD, Opinion No. 2008 DNH 186

The United States sought to recover a tax refund issued to the defendant on the ground that the original value she reported in her 2000 income tax return for stock she received that year was correct. The United States moved for summary judgment, asserting that the defendant was subject to the strong proof rule, which binds her to the tax treatment of the stock specified in numerous transaction documents involved in the stock transaction absent "strong proof" that the parties involved intended a different tax treatment. The defendant objected, contending that she was not subject to the strong proof rule because she was only a third party to the transaction, and, in the alternative, that the transaction documents were not enforceable against her because the stock transaction constituted a contract of adhesion. The defendant also contended that even if the strong proof rule were applicable to her, she had provided "strong proof" that the value of her stock was actually less than the value assigned to it in the transaction documents. The court granted the United States’ motion for summary judgment, concluding that the defendant was a party to the transaction documents, these documents were enforceable against her, application of the strong proof rule was appropriate, and she failed to produce "strong proof" that a different tax treatment was intended by the parties. 18 pages. Judge Joseph A. DiClerico, Jr.

10/6/08 Notinger v. Brown, et al.
Case No. 08-cv-5-SM, Opinion No. 2008 DNH 188

The trustee in bankruptcy brought this action seeking to recover assets he claimed defendants fraudulently diverted from the debtor, Simply Media, Inc., to their own personal use. The jury returned a verdict in favor of the trustee and awarded damages totaling more than $2.9 million. Defendants moved for a new trial or, in the alternative, remittitur. The court granted that motion, concluding that the jury’s award of damages was not supported by the evidence. Accordingly, the court offered plaintiff the option of accepting a reduced award of $1.6 million or a retrial limited to the issue of damages. 13 pages. Chief Judge Steven J. McAuliffe.

10/2/08 Benjamin C. Riggs, Jr. d/b/a Resource Management Company v. Janet Peschong, Personal Representative for the Estate of Frank Gregory
Civil No. 06-cv-366-JD, Opinion No. 2008 DNH 184

Riggs, who is proceeding pro se, brought suit against Frank Gregory, an Oklahoma attorney who has since died, alleging claims that arose out of a business relationship between Resource Management Company and Gregory. Riggs moved to compel Peschong, the representative of Gregory’s estate, to direct her attorney in the Oklahoma probate proceeding to transfer all of Gregory’s funds held in his client trust account to the escrow account opened in this court for this case. Peschong objected, contending that the funds held by her attorney were property of Gregory’s estate under the jurisdiction of the Oklahoma probate court. The federal court denied Riggs’s motion, concluding that under the probate exception, the court lacked jurisdiction to interfere with property in the jurisdiction of the Oklahoma probate court. 7 pages. Judge Joseph A. DiClerico, Jr.

10/16/08 Michael D. Huse v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 08-cv-71-PB, Opinion No. 2008 DNH 178

Michael D. Huse moved to reverse the Commissioner’s denial of his application for disability insurance benefits under the Social Security Act. Huse argued that the matter should be remanded because the administrative law judge ("ALJ") failed to properly account for Huse’s mental impairments when he determined Huse’s residual functional capacity ("RFC") and used the medical vocational guidelines to determine that Huse was not disabled. The court agreed with Huse’s arguments and vacated the Commissioner’s decision and remanded the case for further proceedings. The court found that the ALJ violated Social Security Ruling 96-8p by failing to explain how, if it all, Huse’s nonexertional limitations relating to concentration, persistence or pace affected his RFC. The court found that this error led to the improper use of the medical vocational guidelines rather than a vocational expert to determine that Huse could perform a significant number of jobs in the national economy in spite of his impairments because not all of Huse’s nonexertional limitations were considered. 26 Pages. Judge Paul Barbadoro.

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