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Bar News - March 13, 2009


US District Court Decision Listing: January 2009

* Published

PERSONAL JURISDICTION
02/17/09 New England College v. Drew University, et al.
Case No. 08-cv-424-JL, Opinion No. 2009 DNH 016

Drew University, an out-of-state defendant, moved to dismiss the complaint against it for lack of personal jurisdiction. The plaintiff objected, arguing that conduct that can be attributed to Drew University resulted in the plaintiff’s in-forum injury. Alternatively, the plaintiff requested leave of court to conduct discovery on the issue of personal jurisdiction. Concluding that the plaintiff made a colorable (yet not sufficient) case for the existence of in personam jurisdiction, the court denied Drew University’s motion without prejudice and granted the plaintiff leave to conduct limited jurisdictional discovery. 11 pages. Judge Joseph N. Laplante.


PLRA, Section 1983
02/19/09 Tony Ellison v. NH Department of Corrections, et al.
Case No. 07-cv-131-JL, Opinion No. 2009 DNH 017

The plaintiff, a state prison inmate, brought this action under 42 U.S.C. § 1983, alleging that various New Hampshire State Prison employees and administrators endangered his safety and then failed to protect him. Finding that the plaintiff failed to properly exhaust the administrative remedies available to him prior to bringing suit as required by the PLRA, the court granted summary judgment for the defendants. 15 pages. Judge Joseph N. Laplante.


RECUSAL
2/4/09 United States v. Mitrano
Case No. 08-cr-94-1-PB, Opinion No. 2009 DNH 014

Defendant in this criminal action filed a motion seeking recusal of the presiding judge, asserting that the judge had previously ruled against him in a reciprocal disbarment proceeding (defendant had already been disbarred in other jurisdictions for conduct entirely unrelated to the current criminal case) and asserting that the presiding judge was, therefore, biased against him. After reviewing the relevant facts and governing law, the court noted that defendant’s motion was defective, insofar as it lacked the required affidavit. More importantly, however, the court noted that defendant had not identified any facts which would prompt a reasonable person to harbor serious doubts about the presiding judge’s impartiality. Motion to recuse denied. 9 pages. Chief Judge Steven J. McAuliffe.


RES JUDICATA
02/02/09 Michael C. Dillon v. Select Portfolio Servicing, et al.
Case No. 07-cv-00070-JL, Opinion No. 2009 DNH 012*

The defendants moved for summary judgment on the plaintiff’s claims arising out of their handling of his mortgage loan, relying on the res judicata effect of a judgment he obtained against them or their privies in a prior proceeding he commenced to enjoin the foreclosure. The court granted the motion, ruling that (1) the defendants (or their privies) in both actions were the same, despite the plaintiff’s claim that certain defendants were only "nominal participants" in the prior proceeding and (2) that proceeding presented the same "cause of action" as the present one for res judicata purposes because it arose out of the same conduct on the part of the defendants, even if the plaintiff had sought more limited remedies there. 21 pages. Judge Joseph N. Laplante.


RICO
02/11/09 Daniel E. Hall v. Kent E. Brooks, et al.
Case No. 08-cv-101-JL, Opinion No. 2009 DNH 015

The defendants moved to dismiss the pro se plaintiff’s claims of violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO") arising out of their participation in a real estate transaction in which he had sold his interest in a parcel of commercial property to one of the defendants. Granting the motions, the court ruled that the plaintiff had failed to state a RICO claim because he had not alleged any injury proximately caused by the purported pattern of racketeering activity; the plaintiff had agreed to sell the property to the defendant for a sum certain before any of the alleged racketeering activity, which consisted almost entirely of the defendants’ actions in bringing that transaction to a close on those terms. 25 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY
2/24/09 Pacheco v. SSA
Case No. 08-cv-146-SM, Opinion No. 2009 DNH 018

Claimant appealed the Social Security Commissioner’s denial of her applications for Social Security Disability Insurance Benefits and Supplemental Security Income Benefits. Specifically, claimant said the Commissioner failed to give appropriate weight to the opinions of her treating physician and improperly discounted her subjective complaints of pain. After carefully reviewing the administrative record, however, the court concluded that the Commissioner’s decision was supported by substantial evidence and denied claimant’s motion to reverse that decision. 20 pages. Chief Judge Steven J. McAUliffe.


2/24/09 Gabriel v. SSA
Case No. 08-cv-171-SM, Opinion No. 2009 DNH 019

The Social Security Administration ruled that the claimant, an above-the-knee amputee, did not suffer from a listed impairment. The case was remanded for further consideration of whether the claimant was able to "ambulate effectively on a sustained basis" using a prosthesis that, according to claimant, gave him blisters that would open and bleed if he wore it too long. Given plaintiff’s testimony that he avoided wearing his prosthesis, to avoid blistering, medical evidence of a lack of blisters was insufficient to demonstrate that the claimant did not get blisters from his prosthesis and was, therefore, able to use his prosthesis to ambulate effectively on a sustained basis. 23 pages. Chief Judge Steven J. McAuliffe.

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