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Bar News - February 13, 2009

US District Court Decision Listing: January 2009

* Published


1/12/09 Taite v. Peake
Case No. 08-cv-258-SM, Opinion No. 2009 DNH 005

The plaintiff, a federal employee claiming discrimination based upon her race and disability, brought six claims against her former employer, three under federal statutes and three under the common law of New Hampshire. The defendant moved to dismiss the state claims, arguing that they were preempted by a provision in Title VII making that statute the exclusive remedy for federal employees making claims premised on the kinds of discrimination made unlawful by Title VII. The motion was granted to the extent that the plaintiff’s state claims alleged discrimination covered by Title VII, but otherwise denied, because the plaintiff’s state claims also alleged conduct beyond that proscribed by Title VII. 10 pages. Chief Judge Steven J. McAuliffe.


1/29/09 Starr v. Coulombe, et al.
Case No. 06-cv-487-SM, Opinion No. 2009 DNH 004

Plaintiff, a pro se prisoner, brought suit claiming his constitutional rights were violated when prison officials refused to deliver an item of mail addressed to him. The parties filed cross motions for summary judgment. After carefully reviewing the undisputed material facts of record, the court held that prison officials did not improperly invoke (or apply) the prison’s "publisher only rule" and their conduct in refusing to deliver the disputed mail did not violate plaintiff’s constitutional rights. Accordingly, the court granted defendants’ motion for summary judgment. 23 pages. Chief Judge Steven J. McAuliffe.


1/13/09 Embassy Software Corporation v. eCopy, Inc.
Case No. 06-cv-391-JL, Opinion No. 2009 DNH 006*

Defendant moved to dismiss plaintiff corporation’s copyright infringement suit, arguing that the copyright registration (a jurisdictional prerequisite) in question was invalid because the plaintiff corporation had been administratively dissolved by the State of New Hampshire at the time the copyright was registered. Applying the dissolution provision of the New Hampshire Business Corporation Act, which provides for the continued legal existence of administratively dissolved corporations, and the Act’s ultra vires provision, which narrowly limits the circumstances under which unauthorized corporate conduct is void or voidable, the court rejected the defendant’s and denied the motion to dismiss. 20 pages. Judge Joseph N. Laplante.

42 U.S.C. § 1983

1/27/09 Construction Materials Recycling Association Issues and Educations Fund, Inc., and New England Recycling, Inc. v. Thomas Burack, Commissioner, New Hampshire Department of Environmental Services, et al.
Civil No. 08-cv-376-JD, Opinion No. 2009 DNH 011

The plaintiffs brought a § 1983 action against Thomas Burack, Commissioner of the New Hampshire Department of Environmental Services and Kelly Ayotte, Attorney General of the State of New Hampshire, challenging the constitutionality of New Hampshire legislation which prohibits the combustion of construction and demolition debris. Upon the defendants’ motion to dismiss, the court dismissed the claims against the defendants in their individual capacities, the claims alleging federal law preemption and a violation of the Privileges and Immunities Clause, and claims challenging an expired law under the Commerce Clause. The court denied the motion to dismiss to the extent it sought dismissal of the plaintiffs’ claims alleging violations of the Commerce Clause and claims against the defendants in their official capacities. 21 pages. Judge Joseph A. DiClerico, Jr.


1/14/09 Charles Murphy v. United States of America
Civil No. 08-CV-224-JD, Opinion No. 2009 DNH 007

Petitioner Murphy filed a petition under 28 U.S.C. § 2255 on the ground that his counsel provided ineffective assistance during the pre-sentencing and sentencing process. The court denied the petition, finding that the record belied Murphy’s claims that his counsel failed to review his presentence investigation report with him or to assert mitigating factors which could have reduced his sentence. The court also found that Murphy had at least two prior felony convictions for crimes of violence and that his counsel was therefore not ineffective for failing to object to his classification as a career offender. 12 pages. Judge Joseph A. DiClerico, Jr.


1/15/09 Richard v. SSA
Case No. 08-cv-204-SM, Opinion No. 2009 DNH 008

The government moved to dismiss claimant’s suit on grounds that the court lacked jurisdiction to review Social Security claims in the absence of a final administrative decision. The court denied that motion, noting that claimant was proceeding under the "colorable constitutional claim exception" recognized by the Supreme Court in Califano v. Sanders, 430 U.S. 99 (1977). Chief Judge Steven J. McAuliffe.


1/16/09 George Tsiatsios v. Anheuser Busch, Inc.
Case No. 07-cv-003-JL, Opinion No. 2009 DNH 009

The plaintiff sued the defendant in state court claiming that one of the defendant’s managers tortiously interfered with his employment as a truck driver with a third-party trucking company. Following removal, the defendant moved for summary judgment. Because the plaintiff failed to present any evidence that conduct attributable to the defendant was either intentional or improper under the applicable law, the court granted the defendant’s motion. 16 pages. Judge Joseph N. Laplante.


1/22/09 Daniel J. Philbrick and Dover Sports v. eNom, Inc.
Case No. 07-cv-215-JL, Opinion No. 2009 DNH 010*

The plaintiffs, who sell sporting goods under the registered trade name "Philbrick’s Sports," brought claims of cybersquatting and cyberpiracy of a personal name under the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. §§ 1125(d), 1129, and trademark infringement under the Lanham Act and New Hampshire statutory and common law, arising out of the defendant’s use of domain names confusingly similar to the plaintiffs’ trade name. In granting the defendant’s motion for summary judgment, the court ruled, first, that the plaintiffs could not prove that their trade name was distinctive, either inherently or through its acquired secondary meaning, which was necessary to recover for cybersquatting under § 1125(d). The court rejected the plaintiff’s various arguments that the defendant’s actions, viz., the use of the domain names to host websites containing links labeled with the categories of items sold by the plaintiffs, amounted to "intentional copying" of the name sufficient to show it had secondary meaning, at least in the absence of evidence that those links led to websites where those items could be purchased without the consumer knowing he was no longer dealing with the plaintiffs. The court also ruled that the plaintiffs could not show a likelihood of confusion between their use of the name and the defendant’s, or that the names of the defendant’s websites, which were all some variant of "," were "substantially and confusingly similar to" the plaintiff’s personal name, Daniel Philbrick, to recover for cyberpiracy under § 1129. 66 pages. Judge Joseph N. Laplante.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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