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Bar News - January 16, 2009

US District Court Decision Listing: November & December 2008

* Published


11/17/08 Barrett v. Ambient Pressure Diving, Ltd., et al. *
Case No. 06-cv-240-SM, Opinion No. 2008 DNH 199

In a case in which a citizen of Maryland sued a defendant from England, alleging that a defectively designed product caused the death of the plaintiff’s decedent in Pennsylvania, the parties agreed that New Hampshire law should govern the liability aspect of the case, but disagreed about the law that should govern damages. While plaintiff argued for New Hampshire law and defendant argued for English law, the court ruled that the issue should be governed by the law of Maryland, home to the decedent and his survivor, and that Maryland law, in turn, required the court to apply the law of Pennsylvania, as that state was the place where the principal injuries were sustained. 19 pages. Chief Judge Steven J. McAuliffe.


11/25/08 D’Jamoos v. Atlas Aircraft Center, Inc.
Case No. 08-cv-108-SM, Opinion No. 2008 DNH 203

Defendant moved to dismiss plaintiffs’ claims against it, asserting that the court lacked personal jurisdiction over it. In response, plaintiff moved the court to permit it to engage in limited jurisdictional discovery. The court granted that motion, concluding that it was timely, properly supported, and demonstrated a colorable claim of jurisdiction. 7 pages. Chief Judge Steven J. McAuliffe.


11/20/08 Notinger v. Brown, et al.
Case No. 08-cv-5-SM, Opinion No. 2008 DNH 202

Following a four-day trial, the jury returned a verdict in favor of defendants and awarded them a total of nearly $3 million in damages, concluding that defendants had fraudulently converted to personal use substantial assets of the corporate debtor in bankruptcy. Notwithstanding that victory, the trustee in bankruptcy pressed the court to also resolve equitable claims that had been simultaneously tried to the court. Consistent with the jury’s verdict, the court ruled in the trustee’s favor as to his claims that defendants had been unjustly enriched at the expense of the debtor in bankruptcy and imposed a constructive trust on defendants’ assets. 8 pages. Chief Judge Steven J. McAuliffe.


12/18/08 Burke v. Amherst School District
Case No. 08-cv-14-SM, Opinion No. 2008 DNH 210

In this case, brought under the Individuals with Disabilities Education Act ("IDEA"), the court affirmed the hearing officer’s determination that the plaintiff’s daughter had not been denied a free appropriate public education, even though the defendant school district did not implement one of the goals of the student’s individualized educational program ("IEP"), and despite the fact that approximately seven months passed between the expiration of one IEP and the final approval of a successor IEP. 30 pages. Chief Judge Steven J. McAuliffe.


12/5/08 Kasenia R. v. Brookline School District
Case No. 05-cv-292-JL, Opinion No. 2008 DNH 207*

The parents of a learning and emotionally disabled child appealed the New Hampshire Department of Education’s decision rejecting their claim that the Brookline School District had violated the IDEA by failing to make a free appropriate public school education available to their daughter. The parents asked the court to reverse that decision and order the school district to reimburse them the costs of their daughter’s unilateral placement in private school. The court, citing the demonstrative progress the student was able to achieve in public schools under prior individualized education programs, affirmed the New Hampshire Department of Education’s prior decision. Judge Joseph N. Laplante.


12/15/08 Ben’s Auto Body, Inc. v. Teitelbaum, et al.
Case No. 08-cv-207-SM, Opinion No. 2008 DNH 208

Plaintiff, an automobile repair shop, brought this action against two employees of an insurance company. Plaintiff claimed that defendants told one of its customers (defendants’ insured) that plaintiff was overcharging for repairs and suggested that the customer take her vehicle to one of plaintiff’s competitors - a repair shop with which the insurance company had a pre-existing arrangement concerning the price of various repairs. Although the customer ignored defendants’ suggestion, plaintiff brought suit, advancing five claims: unfair insurance trade practices (RSA ch. 417); intentional interference with contractual relations; defamation; violations of the Consumer Protection Act (RSA ch. 358-A); and violations of the Anti-trust Act (RSA ch. 356). On defendants’ motion, the court dismissed four of plaintiff’s counts, concluding that only its claim for defamation states a viable cause of action. 15 pages. Chief Judge Steven J. McAuliffe.


12/31/08 NE Southern Railroad Co. v. Boston & Maine Co., et al.
Case No. 07-cv-403-JL, Opinion No. 2008 DNH 218*

The plaintiff moved for reconsideration of the court’s order dismissing its claims for lack of subject matter jurisdiction, arguing that the court wrongly concluded that 49 U.S.C. § 10501(b) of the ICCTA vested the Surface Transportation Board with exclusive jurisdiction over claims involving transportation by rail carriers. Because the plaintiff was again unable to cite any authority, statutory or otherwise, establishing federal district court jurisdiction over its common law claims, and because the applicable statutory scheme vested jurisdiction in state court, the motion for reconsideration was denied. Judge Joseph N. Laplante.


12/3/08 Maryland Casualty v. Flynn, et al.
Case No. 08-cv-82-SM, Opinion No. 2008 DNH 206

Maryland Casualty brought this interpleader action, acknowledging that more than the aggregate coverage limits of its insurance policies would be required to pay all legitimate claims against its insured - claims being pursued in state court. Importantly, however, federal subject matter jurisdiction over interpleader actions is premised on diversity of citizenship: at least two claimants to the fund must be residents of different states. Because such diversity was not apparent on the face of plaintiff’s complaint, the court ordered the parties to show cause why the interpleader action should not be dismissed for lack of interpleader jurisdiction. 4 pages. Chief Judge Steven J. McAuliffe.


12/18/08 United States of America v. Eduardo K. Fernandez-Avalos and Maria C. Rosario
Case No. 07-cr-252-JD, Opinion No. 2008 DNH 211

Defendant Rosario moved to exclude a witness’s identification of her from a photographic array. The court found that the array, which presented eight photographs depicting women with similar characteristics in front of similar backgrounds, was not impermissibly suggestive. The court further found that even if the array were impermissibly suggestive, Rosario could not show a very substantial likelihood of misidentification. 9 pages. Judge Joseph A. DiClerico, Jr.


12/19/08 Lawrence and Marilyn Learner v. Marvin Lumber and Cedar Company, et al.
Case No. 08-cv-177-JL, Opinion No. 2008 NH 212

The defendants, sellers of allegedly defective windows, moved to dismiss the plaintiffs’ products liability action as barred by res judicata and release as the result of a class action judgment and settlement entered in a Minnesota court. The plaintiffs argued that they were not bound by the judgment and settlement because (1) it applied only to purchasers of windows treated with a certain preservative, (2) the claims asserted in that action did not include the claims they were asserting in this action, i.e., that the windows were defective in ways unrelated to the preservative, and (3) the judgment and settlement entered with insufficient notice and were otherwise unfair and unreasonable. The court noted that, under Reppert v. Marvin Lumber & Cedar Co., 359 F.3d 53 (1st Cir. 2004), considering the preclusive effect of the same judgment and settlement, the plaintiffs’ claims would be barred, and the notice of the settlement was sufficient. The court also noted that collateral attacks on a class action judgment are limited to sufficiency of notice and adequacy of representation, excluding challenges to its "fairness" or "reasonableness." Because the defendants had not conclusively established that the plaintiffs’ windows had been treated with the preservative, however, the defendants had not shown the plaintiffs’ membership in the class as necessary to prevail on the res judicata and release defenses on a motion to dismiss. The court therefore denied the motion without prejudice to reasserting those defenses on summary judgment, limiting discovery to the issue of whether the plaintiffs’ windows had been treated with the preservative. 23 pages. Judge Joseph N. Laplante.


12/31/08 Lyubov Y. Gorelik v. Kevin R. Costin
Case No. 08-cv-036-JL, Opinion No. 2008 DNH 217

The plaintiff, a physician, filed a five count complaint against the defendant, in his official capacity as President of the New Hampshire State Board of Medicine, alleging various violations of 42 U.S.C. § 1983 and the First and Fourteenth Amendments. The defendant filed a motion to dismiss, contending, inter alia, that the applicable statute of limitations period had expired. The court granted the defendant’s motion, concluding that the plaintiff’s claim was time-barred. The court also concluded that the "continuing violation" doctrine did not apply in this case because the plaintiff did not sufficiently allege a continuing tort. 14 pages. Judge Joseph N. Laplante.

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