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Bar News - December 19, 2008


US District Court Decision Listing November 2008

* Published

CIVIL RIGHTS

11/6/08 Colby Brown v. Town of Seabrook, et al.
Case No. 06-cv-194-JL, Opinion No. 2008 DNH 196

The defendants, municipal police officers, moved for summary judgment on the plaintiff’s claims for excessive force and false arrest arising out of his alleged assault by a number of law enforcement personnel. The court ruled that the plaintiff’s interrogatory answers failed to show his competence to testify as to the identity of the officers who had taken part in the alleged assault, as required by Fed. R. Civ. P. 56(e), and that, given the plaintiff’s failure to respond to the defendants’ statement of facts, those were deemed admitted under L.R. 7.2(b)(2). Because the plaintiff had no competent evidence that the defendant officers, as opposed to state troopers who had not been named as defendants, had participated in the alleged assault, the court granted the motion as to the excessive force claim. The court also granted the motion as to the false arrest claim, ruling that the officers had reasonable suspicion to take the plaintiff, a juvenile, into protective custody, or to arrest him for resisting detention, under New Hampshire law.

17 pages. Judge Joseph N. Laplante.


CIVIL PROCEDURE, ELEVENTH AMENDMENT IMMUNITY

11/20/08 Kimberly Kyle v. Fidéle Tremblay, Inc. and Francis Hammond
Case No. 07-cv-348-JL, Opinion No. 2008 DNH 201

The defendants to an action for wrongful death and personal injury arising out of an accident on an interstate highway filed a third-party complaint against the New Hampshire Department of Transportation, alleging that its gross negligence in failing to remove snow and ice from the highway contributed to the accident. The Department moved to dismiss. The court ruled that (1) given diversity jurisdiction over the plaintiff’s claim against the defendants, there was supplemental jurisdiction over the defendants’ third-party claim under 28 U.S.C. § 1367, but (2) the third-party claim against the Department, as an arm of the State of New Hampshire, was barred by the Eleventh Amendment.

8 pages. Judge Joseph N. Laplante.


CONSTITUTIONAL LAW; FIRST AMENDMENT--MUNICIPAL WEBSITE

11/13/08 Thomas Sutliffe and Epping
Residents for Principled
Government, Inc. v. Town of
Epping, et al.
Case No. 06-cv-474-JL, Opinion No. 2008 DNH 198

The defendants, a town and the members of its board of selectmen, moved for summary judgment on the claim by the plaintiffs, a self-described "taxpayers group" and its chairman, that their First Amendment rights had been violated when the town asked the group to provide information as to its mission, membership, and finances in order to consider its request to place a link to its website on the town’s homepage. In granting the motion, the court ruled, first, that the homepage was not a public forum, because (a) the town had always followed a policy limiting the content of the page to official town business, (b) links to other sites could be placed on the page only with the approval of the board of selectmen, and (c) the page served as a conduit for information about the town, rather than a bulletin board enabling discussion. Second, the court ruled that this policy was reasonable in light of the homepage’s purposes, and that the defendants had acted reasonably in seeking information from the plaintiffs in response to their request to link to the page. Third, the court ruled that the plaintiffs had no evidence to support their claim of viewpoint discrimination.

31 pages. Judge Joseph N. Laplante.


EMPLOYMENT: WRONGFUL DISCHARGE

11/25/08 John Antonis v. Electronics for Imaging, Inc.
Case No. 07-cv-163-JL

Summary judgment entered for employer in wrongful termination action where employee could not establish a genuine issue of material fact with respect to bad faith/malice prong of burden of proof.

15 pages. Judge Joseph N. Laplante.


SIXTH AMENDMENT RIGHT TO COUNSEL

11/7/08 United States of America v.
Eduardo K. Fernandez-Avalos
and Maria C. Rosario
Criminal No. 07-cr-252-JD, Opinion No. 2008 DNH 197

Defendant Fernandez-Avalos moved to suppress statements he made to United States Postal Inspectors following his arrest. Following an indictment, the defendant was arrested at his home and taken to the local police station for questioning. The defendant and the defendant’s wife informed the inspectors that he had an attorney. In the absence of the defendant’s counsel, the inspectors gave the defendant a Miranda warning and presented him with a waiver of his rights. The defendant waived his rights after initially declined to sign the waiver. The court found that generally, government agents may seek a waiver of the Sixth Amendment right to counsel in the absence of counsel, and that in many circumstances a Miranda warning is sufficient to waive the accused’s Sixth Amendment right to counsel. However, the court found that the inspectors sought a waiver of the defendant’s right to counsel knowing that he had been indicted and was represented by an attorney. Under these circumstances, the court held that the Miranda warning was insufficient to waive the defendant’s Sixth Amendment right to counsel and granted the motion to suppress.

14 pages. Judge Joseph A. DiClerico, Jr.


42 U.S.C. § 1983

11/18/08 Property Portfolio Group, LLC v. Town of Derry, et. al
Civil No. 08-cv-270-JD, Opinion No. 2008 DNH 200

The plaintiff brought state law claims and federal constitutional claims under 42 U.S.C. § 1983 against the defendants for their alleged failure to enforce a buffer requirement on two properties abutting the plaintiff’s property. The court granted the defendants’ motion to dismiss as to the federal claims, finding that the plaintiff failed to establish a plausible violation of its substantive and procedural due process rights. The court declined to exercise supplemental jurisdiction over the state law claims, and remanded them to the state superior court.

17 pages. Judge Joseph A. DiClerico, Jr.

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