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Bar News - April 17, 2009

US District Court Decision Listing March 2009
* Published

3/31/09 Carter v. NHDHHS
Case No. 07-cv-23-SM, Opinion No. 2009 DNH 040

Noting that this case was neither particularly novel nor complex, and pointing out that the State defendant confessed liability almost immediately after suit was filed, the court concluded that plaintiffs’ request for $123,000 in attorney’s fees was excessive and unwarranted. After carefully reviewing the time charges submitted by counsel, determining an appropriate hourly rate of compensation for plaintiffs’ attorneys, and calculating a reasonable number of hours that counsel devoted to the case, the court awarded plaintiffs a total of approximately $51,000 in attorney’s fees. 18 pages. Chief Judge Steven J. McAuliffe.

3/31/09 Doris Balles v. Richard Culton Sturgill et al.
Case No. 08-cv-502-JD, Opinion No. 2009 DNH 039

The appellant appealed a decision of the bankruptcy court dismissing her complaint challenging the discharge of a debt which she alleged is owed to her by the debtors/appellees. The appellant claimed that the debtors owe her approximately $85,000 for real property which she conveyed to them and that this unsecured debt is excepted from discharge in bankruptcy pursuant to 11 U.S.C. § 523(a). The court affirmed the bankruptcy court’s decision, holding that the appellant’s complaint failed to state a claim for nondischargeability under § 523(a). 12 pages. Judge Joseph A. DiClerico, Jr.

03/06/09 Kevin D. Hall v. Richard Van Winkler
Case No. 07-cv-343-JL, Opinion No. 2009 DNH 023

The incarcerated pro se plaintiff claimed a violation of his constitutional right to privacy, alleging that the jail’s system for keeping inmate medical records allowed their access by unauthorized persons. Granting summary judgment for the jail’s superintendent, the court ruled that, even if the Constitution embraced a right to appropriate security over confidential information maintained by the state, the jail exercised appropriate security here by keeping the records in locked cabinets in an area accessible only by medical personnel. 3 pages. Judge Joseph N. Laplante.

3/30/09 Lakeview Management, Inc. v. Care Realty, LLC, et al.
Case No. 07-cv-303-SM, Opinion No. 2009 DNH 036

The parties to this complex commercial real estate dispute raised numerous claims against each other, which were tried to the court. Following several days of trial, the court concluded that the plaintiff/tenant had exercised its option to extend the lease for an additional five years, despite having failed to properly calculate (and pay) its full monthly rental obligations for several years. Defendants were equitably estopped by conduct from challenging the option’s exercise on grounds of a continuing default under the lease. The court also concluded that the tenant had neither terminated that lease extension, nor repudiated its obligations under it. Finally, the court held that the landlord was entitled to recover the unpaid back rent for a period of time co-extensive with the applicable limitations period. 62 pages. Chief Judge Steven J. McAuliffe.

3/20/09 Elyssa B. Slater v. Town of Exeter, et al.
Case No. 07-cv-407-JL, Opinion No. 2009 DNH 029

The plaintiff, the former police prosecutor for the Town of Exeter, claimed she had been discriminated against on account of her sex in being required to account for her time at work by using a time clock, then constructively discharged and retaliated against when she complained about the practice. Granting summary judgment for the defendants, the court ruled that (1) having to use the time clock did not amount to a change in the terms, conditions, or privileges of her employment sufficient to support her discrimination claims, (2) being yelled at once by her supervisor, who in that exchange allegedly expressed displeasure over her complaints, criticized her performance, and threatened to subject her to "nitpicking"--but also said that, in another two months, she would no longer have to use the clock--did not amount to constructive discharge as a matter of federal or state law, and (3) that exchange also did not amount to actionable retaliation as a matter of federal or state law, under the standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). 32 pages. Judge Joseph N. Laplante.

3/25/09 Doran v. Contoocook Valley Sch. Dist.
Case No. 07-cv-307-PB, Opinion No. 2009 DNH 032

Plaintiffs Donna Doran and Gary Fischer sued on behalf of their children, who were students at Contoocook Valley Regional High School ("ConVal High"), over a school-wide search for illegal drugs that took place on June 7, 2007. The search was executed by sequestering students on the football field while drug sniffing dogs were brought through the school building to sniff the students’ personal belongings. Plaintiffs alleged that the exercise amounted to an illegal search and seizure, and they named the Contoocook Valley School District, the Contoocook Valley School Board, ConVal High Principal Susan Dell, the Town of Peterborough, New Hampshire, and Peterborough Police Chief Scoot Guinard, as defendants. Plaintiffs brought claims under both the Fourth Amendment of the United States Constitution and Part I, Article 19 of the New Hampshire Constitution. With respect to plaintiffs’ federal claim, the court granted the defendants’ motions for summary judgment, holding that the use of drug sniffing dogs to search personal belongings did not amount to a search within the meaning of the Fourth Amendment. It also held that detaining the students on the football field while the dog sniff was conducted did not amount to a seizure under the Fourth Amendment because students lack the right to come and go at will during the school day. Plaintiff’s remaining claim, which alleged that the search and seizure violated the New Hampshire Constitution, was remanded to the state court for resolution. 26 pages. Judge Paul Barbadoro.

3/12/09 NeoDevices v. NeoMed, et al.
Case No. 08-cv-375-SM, Opinion No. 2009 DNH 020

Where plaintiff claimed that out-of-state defendants were liable under various tort, contract, and statutory theories because they allegedly stole plaintiff’s customers through trickery, and falsely disparaged plaintiff’s products, the court was without personal jurisdiction over defendants due to a lack of relatedness between the wrongful conduct alleged and the forum state. 30 pages. Chief Judge Steven J. McAuliffe.

3/19/09, Sharon Few v. Liberty Mutual insurance Company et al.,
Case No. 06-cv-427-JL, Opinion No. 2009 DNH 027

The pro se plaintiff brought this ERISA action seeking to reinstate benefits under a life insurance policy she claims were wrongfully terminated by the defendant insurance companies and their employees. The defendants filed a motion for summary judgment contending that their actions with respect to the policy were valid. The court, after a de novo review of the record, granted the defendants’ motion. The court concluded that the defendants were justified in terminating the plaintiff’s benefits because she refused to submit to their reasonable requests for independent physical exams and therefore failed to abide by the plain language of the terms of the policy. The court also concluded that the Defendants’ actions were appropriate because the plaintiff failed to submit sufficient proof of a continuing disability as required by the plan. 29 pages. Judge Joseph N. Laplante.

3/31/09 Amanda Cossaboon v. Maine Medical Center
Case No. 08-cv-260-JL, Opinion No. 2009 DNH 038

The plaintiff brought this medical malpractice action against the defendant hospital alleging negligence in the care of her infant daughter. The defendant filed a motion to dismiss asserting that the court could not assert personal jurisdiction over the defendant. The court granted the motion to dismiss, concluding that it lacked specific jurisdiction because the cause of action did not relate to the defendant’s in-state activities. The court also concluded that it lacked general jurisdiction because the defendant’s contacts with New Hampshire were not sufficiently "continuous and systematic" to justify the court’s exercise of jurisdiction. 26 pages. Judge Joseph N. Laplante.

3/27/09 Foss Manufacturing Group, LLC v. S Group Automotive LLC
Civil No. 08-cv-264-JL, Opinion No. 2009 DNH 037

The plaintiff, a manufacturing company with its operations in New Hampshire, sued a Michigan-based auto parts manufacturer, claiming breach of contract in the defendant’s refusal to pay for or accept further delivery of material it said was defective. The defendant, who had negotiated the contract with the plaintiff’s sales agent in Michigan, moved to dismiss for lack of personal jurisdiction. Granting the motion, the court ruled that (1) neither the defendant’s acts of sending a few purchase orders to the plaintiff’s New Hampshire facility, or mailing a letter there announcing that it would not honor the contract due to the alleged defects in the material, were sufficiently related to the plaintiff’s claims to support personal jurisdiction, (2) because the defendant was a "passive purchaser," who simply placed an order for goods with a New Hampshire manufacturer followed by a few ancillary contacts with the plaintiff there, the defendant had not purposefully availed itself of the privilege of conducting business in the state so as to support personal jurisdiction, and (3) the appearance of a clause in "Conditions of Sale" mailed to the defendant after the plaintiff had submitted a bid, specifying that the contract was deemed to have been entered into in New Hampshire and that New Hampshire law would govern, also did not confer jurisdiction. 24 pages. Judge Joseph N. Laplante.

3/31/09 Notinger v. Brown
Case No. 08-cv-5-SM, Opinion No. 2009 DNH 043

After prevailing at trial, obtaining attachments against defendant’s assets, and securing an injunction prohibiting defendant from transferring or encumbering any of those assets, plaintiff sought writs of execution. The court denied that request, noting that defendant had filed a timely appeal of the judgment against her, which was still pending before the court of appeals. Accordingly, the judgment against defendant was not yet "final." The court observed that New Hampshire law, which governs, does not permit issuance of a writ of execution on a judgment still pending appeal as the judgment is not "final." While some states permit execution on a judgment under appeal, under unusual circumstances, New Hampshire does not appear to be one of them. 5 pages. Chief Judge Steven J. McAuliffe.

3/16/09 Michele L. Page v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 08-cv-340-JD, Opinion No. 2009 DNH 025

Page sought social security disability benefits, claiming that she was disabled by anxiety and depression which caused panic attacks and agoraphobia. When Page sought judicial review of the ALJ’s first decision that she was not disabled, the Commissioner moved to reverse the decision and remand the case to the ALJ to develop the record. Following a second hearing, the ALJ again found against Page, and she sought judicial review. The decision was reversed and remanded due to a lack of substantial evidence to support the decision and the ALJ’s failure to consider Page’s mother’s testimony at the hearing. The court directed that the case be assigned to a different ALJ. 17 pages. Judge Joseph A. DiClerico, Jr.

3/31/09 Rex v. SSA
Case No. 07-cv-48-SM, Opinion No. 2009 DNH 042

After successfully obtaining an order remanding her application for Children’s Supplemental Security Benefits to the administrative law judge, claimant sought an award of attorney’s fees under the Equal Access to Justice Act. The court granted that request, concluding that the medical and evidentiary record before the ALJ was so sparse and incomplete that the ALJ had an unmistakable obligation to more fully develop the record before issuing a decision on claimant’s application. The ALJ’s obligation was particularly clear, given the opinion of one treating physician that several additional tests were necessary to fully determine the extent of claimant’s disabilities. Accordingly, the court held that the government’s position in opposing claimant’s application for benefits was not "substantially justified" and claimant was entitled to reasonable attorney’s fees under EAJA. 9 pages. Chief Judge Steven J. McAuliffe.

3/31/09 Moriarty v. SSA
Case No. 07-cv-342-SM, Opinion No. 2009 DNH 044

After successfully obtaining an order remanding his application for Social Security Disability Benefits to the administrative law judge, claimant sought an award of attorney’s fees under the Equal Access to Justice Act. In reviewing claimant’s request, the court noted that it had remanded the matter to the ALJ on the basis of its interpretation of a Social Security Ruling and the obligations it imposes on ALJs. The court recognized, however, that the proper interpretation of that Social Security Ruling has been the subject of ongoing judicial debate - a debate the court of appeals has yet to resolve. Accordingly, the court concluded that the government’s position, at the relevant time, in opposing claimant’s application for benefits was "substantially justified" and, therefore, claimant was not entitled to an award of attorney’s fees under EAJA. 9 pages. Chief Judge Steven J. McAuliffe.

3/25/08 Industrial Tower and Wireless, LLC v. Town of East Kingston, NH
Case No. 07-cv-399-PB, Opinion No. 2009 DNH 033

Industrial Tower and Wireless, LLC ("ITW") moved for summary judgment on the claim that East Kingston’s Zoning Board of Adjustment ("ZBA") violated the Telecommunications Act of 1996 ("TCA") when it denied ITW’s application for a variance to construct a wireless telecommunications tower. ITW sought an injunction directing East Kingston to grant the requested variance. East Kingston and an Intervenor filed cross motions for summary judgment. The court found that the ZBA failed to comply with the TCA’s written decision requirement because the ZBA’s written notice of decision did not contain any explanation of the basis for its decision and the ZBA meeting minutes in the record could not serve as a substitute for a separate written decision. However, the court determined that granting ITW an injunction was not the appropriate remedy where ITW had failed to raise the written decision claim in its motion to the ZBA for rehearing. The court remanded the matter to the ZBA to produce a written decision that meets the requirements of the TCA. The court denied the cross motions for summary judgment and did not reach the parties’ substantial evidence claims because a proper written decision is required before a court can evaluate the evidentiary support for that decision. 14 Pages. Judge Paul Barbadoro.

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