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Bar News - August 14, 2009


US District Court Decision Listing - June 2009

* Published

BANKRUPTCY
6/4/09
Michael Askenaizer, Esq. as Trustee for the Chapter 7 Debtor BeaconVision, Inc. v. Victoria Moate, d/b/a New Century Title Abstract, et al.
Case No. 09-cv-63-JD, Opinion No. 2009 DNH 073*

The Trustee of the debtor appealed the decision of the United States Bankruptcy Court denying its claims of negligence and conversion in an adversary proceeding against the defendants. The court affirmed the decision of the bankruptcy court, holding that the Trustee failed to show that the defendants breached any duty that they may have owed to the debtor. The court also held that the Trustee failed to prove its conversion claim because the defendants acted in good faith and did not exercise the requisite dominion and control over the funds at issue. 15 pages. Judge Joseph A. DiClerico, Jr.


CIVIL RIGHTS; QUALIFIED IMMUNITY; CORPORATIONS
06/25/09
Glen Gidley v. Anthony Oliveri and Juan Valerio
Case No. 07-cv-31-JL, Opinion No. 2009 DNH 094*

When the Salem Police Department initiated a misdemeanor prosecution against Salem Manufactured Homes, a limited liability company, the company’s only member and manager was "booked" at the police station and issued a summons, resulting in a Fourth Amendment-based § 1983 civil rights action against the officers involved. The court found the officers entitled to qualified immunity and granted summary judgment in their favor, because the booking-and-summons procedure did not implicate a "clearly established" constitutional right such that a reasonable officer would have understood his or her conduct would have violated that right. Summary judgment granted for defendants on state law tort claims as well. Judge Joseph N. Laplante. 38 pages.


CIVIL RIGHTS § 1983: PRISONER
6/10/09
Lamarche v. Jordan, et al.
Case No. 04-cv-69-SM, Opinion No. 2009 DNH 078

State inmate brought this action against corrections officers, claiming they violated his constitutionally protected rights by failing to protect him from an assault committed by another inmate. After carefully reviewing the factual record, the court held that a rational trier-of-fact could not reasonably conclude that defendants were aware of, yet callously disregarded, an excessive risk to plaintiff’s safety posed by the inmate who assaulted him. Defendants’ motion for summary judgment granted. 16 pages. Chief Judge Steven J. McAuliffe.


6/23/09
Joel Smith v. Wrenn, et al.
Case No. 07-cv-408-SM, Opinion No. 2009 DNH 091

Plaintiff, a Maine state prisoner currently incarcerated at the New Hampshire State Prison, brought suit against various corrections officials claiming they violated his constitutionally protected rights by failing to provide him with timely and competent medical treatment for a kidney stone. Defendants moved for summary judgment, asserting that plaintiff failed to exhaust available administrative remedies and, even if he had exhausted, his claims fail as a matter of law. The court agreed, holding that the factual record established that defendants did not display deliberate indifference to plaintiff’s serious medical needs. Defendants’ motion for summary judgment granted. 17 pages. Chief Judge Steven J. McAuliffe.


 6/29/09
Dennis Smith v. Wrenn, et al.
Case No. 07-cv-119-SM, Opinion No. 2009 DNH 097

New Hampshire prisoner, currently incarcerated in Texas, brought suit claiming defendants violated his constitutionally protected rights by denying him adequate medical care. The court granted defendants’ motion for summary judgment, concluding that plaintiff failed to timely exhaust available administrative remedies prior to filing his federal suit, as is required by the Prison Litigation Reform Act. 16 pages. Chief Judge Steven J. McAuliffe.


EDUCATION
6/30/09
Campbell v. Hooksett School District
Case No. 07-cv-276-SM, Opinion No. 2009 DNH 098

Summary judgment was granted to the defendant school district in this IDEA case because the plaintiff failed to carry her burden of showing that her son’s IEP was inadequate (due to the alleged lack of a measurable goal and objectives), that the IEP was inadequately implemented (due to the school’s alleged failure to provide the parent with a syllabus), or that the plaintiff’s son was incorrectly deemed no longer in need of special-education services on the occasion of his triennial reevaluation. 12 pages. Chief Judge Steven J. McAuliffe.


EMPLOYMENT
6/25/09
DesRoches v. EEOC
Case No. 08-cv-363-SM, Opinion No. 2009 DNH 095

Summary judgment was granted to the EEOC on grounds that the plaintiff’s claims under the Accardi doctrine and the Administrative Procedure Act, if they were even cognizable in the first place, were mooted by the plaintiff’s previous election to pursue de novo review of an EEOC decision in favor of his former employer. 8 pages. Chief Judge Steven J. McAuliffe.


EMPLOYMENT LAW; ADA and FMLA
6/10/09
Duhy v. Concord General Mutual Insurance Co.
Case No. 08-cv-192-JL, Opinion No. 2009 DNH 074

The court granted the defendant employer’s motion for summary judgment on the plaintiff employee’s claims for retaliation in violation of the Family and Medical Leave Act, employment discrimination under the Americans with Disabilities Act and its state law analog, and wrongful discharge under New Hampshire law. The plaintiff failed to establish her prima facie case on either of the first two claims; there was no evidence that she either suffered from a "serious health condition" under the FMLA, or was "disabled" (or regarded as such) within the meaning of the ADA. The court also granted summary judgment on the wrongful discharge claim, finding that portions of this claim were superseded by the FMLA, while the remainder did not implicate public policy considerations recognized under New Hampshire law. 31 pages. Judge Joseph N. Laplante.


EMPLOYMENT LAW; FMLA, RETALIATION
6/22/09
Khan v. United Airlines
Case No. 08-cv-064-JL, Opinion No. - No written order

The plaintiff, a former airport operations supervisor at Manchester-Boston Regional Airport, claimed that the defendant terminated his employment in retaliation for his taking leave protected under the Family Medical Leave Act, 29 U.S.C. § 2615(a). Denying the defendant’s motion for summary judgment, the court determined that there was a genuine issue of material fact as to whether the defendant’s stated reason for the termination was pretextual and designed to cloak unlawful discrimination. Order issued orally from the bench. Judge Joseph N. Laplante.


HABEAS CORPUS
6/10/09
Carey v. Warden
Case No. 07-cv-380-SM, Opinion No. 2009 DNH 079

Following his state court conviction of one count of stalking, petitioner sought federal habeas corpus relief on 15 grounds. In denying the petition, the court held that: (1) the majority of petitioner’s claims were procedurally defaulted; (2) he failed to demonstrate that the sole issue addressed on the merits by the state supreme court was resolved in a way that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent; and, finally, (3) as to those issues not addressed by the state courts, petitioner failed to point to any evidence sufficient to support habeas relief. Petition denied. 21 pages. Chief Judge Steven J. McAuliffe.


 6/24/09
Campney, Sr. v. Bare Hill Superintendent
Case No. 06-cv-353-SM, Opinion No. 2009 DNH 093

Summary judgment was granted to the respondent because the Interstate Agreement on Detainers (IAD) does not include the substantive right on which the petitioner’s IAD claim was based, and his only claim of ineffective assistance of appellate counsel - that his appellate counsel failed to brief and argue each of the eleven issues raised in his notice of appeal - was without merit. 9 pages. Chief Judge Steve J. McAuliffe.


SEXUAL DISCRIMINATION; HARASSMENT; SCHOOL DISTRICT
6/12/09
Brodeur v. Claremont School District, et al.
Case No. 07-cv-206-JL, Opinion No. 2009 DNH 082*

In this sexual discrimination case involving alleged harassment of a Stevens High School junior by a faculty member with a history of inappropriate conduct, the defendants’ summary judgment motion was denied on the Title IX claims where triable issues of fact existed as to school district officials’ actual knowledge of, deliberate indifference to, and severity of, the harassment. Also, while discretionary function immunity barred some of the plaintiffs’ state law claims for negligent hiring and retention, negligent training and supervision, failure to protect and warn, it did not bar the plaintiffs’ negligence claim for the district’s failure to follow its harassment policy. Summary judgment was also granted in favor of the defendants on the plaintiffs’ emotional distress and breach of fiduciary duty claims. 77 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY
6/9/09
Blanchette v. SSA
Case No. 08-cv-349-SM, Opinion No. 2009 DNH 077

The Commissioner’s denial of social security disability benefits was affirmed over the claimant’s arguments that the Administrative Law Judge erred by: failing to give sufficient weight to her treating source’s opinion; failing to obtain a treating source residual functional capacity ("RFC") assessment; relying on an incomplete RFC assessment; making unsupported factual findings; failing to make appropriate inquires of her during her hearing; failing to take her good work record as evidence of her credibility; relying on vocational expert testimony that misidentified her past relevant work; determining that she had the capacity to perform a job that she never held; and failing to give her past relevant work adequate consideration. 41 pages. Chief Judge Steven J. McAuliffe.

6/9/09
Redden v. SSA
Case No. 08-cv-314-SM, Opinion No. 2009 DNH 076

This case was remanded to the Administrative Law Judge for a proper assessment of the claimant’s subjective claims of disabling pain. 23 pages. Chief Judge Steven J. McAuliffe.


STATE LAW - DEBT COLLECTION
6/17/09
Rosemary A. Gilroy v. Ameriquest Mortgage Company and Ameriquest Mortgage Company Mortgage Services, Inc.
Case No. 07-cv-074-JD, Opinion No. 2009 DNH 088

Rosemary Gilroy brought a complaint against the defendants for violations of New Hampshire Revised Statutes Annotated ("RSA") 358-C:3, I(a), alleging that the defendants harassed her by repeatedly calling her at home regarding delinquent mortgage payments. After a bench trial, the court found that the defendants had violated RSA 358-C:3, I(a) and awarded Gilroy statutory damages under RSA 358-C:4, I(a). 13 pages. Judge Joseph A. DiClerico, Jr.


 6/12/09
Walter Norton v. Cross Border Initiative, et al.
Case No. 06-cv-490-PB, Opinion No. 2009 DNH 081

The plaintiff brought this action against numerous local and federal law enforcement officials, alleging that he was punched, kicked, stomped on, and handcuffed too tightly during the course of his arrest. He sought to hold the defendants liable for the use of excessive force and failure to protect against the use of excessive force, as well as on a supervisory liability theory. The defendants moved for summary judgement and the court granted the defendants’ motions. The court determined that there was an absence of evidence that any of the defendants participated in the alleged assault on the plaintiff or, to the extent that any excessive force was used by others, that any of the defendants witnessed the assault or were in a position to prevent it. Further, the court determined that there was no supervisory liability because there was no evidence to suggest that the actions or inactions of the supervisor were affirmatively linked to or led inexorably to the constitutional violation alleged. Finally, the court determined that there was insufficient evidence from which a factfinder could conclude that any of the defendants applied zip-tie handcuffs to the plaintiff or that, despite the plaintiff’s unsubstantiated complaints, the defendants violated his constitutional right by not removing the handcuffs within five minutes of his arrest. 35 Pages. Judge Paul Barbadoro.


 6/15/09
Douglas and Naruko Bews v.Town of Carroll, et al.
Case No. 06-cv-431-PB, Opinion No. 2009 DNH 083

Plaintiffs Douglas and Naruko Bews brought claims against the Town of Carroll, New Hampshire and other defendants pursuant to 42 U.S.C. § 1983, alleging that the defendants violated their rights under the First and Fourteenth Amendments of the U.S. Constitution. Plaintiffs also asserted state law claims. Previously, the parties agreed by stipulation in state court that the plaintiffs would cease snowmobile rental operations at their place of business until receiving approval to conduct such operations from the Town of Carroll. Defendants moved for summary judgment. The court determined that because the plaintiffs could have raised their federal constitutional claims as defenses in the previous state court enforcement action, they were barred by res judicata from asserting them in federal court. Summary judgment was granted for the defendants with respect to the plaintiffs’ federal claims, and the state law claims were dismissed without prejudice. 18 Pages. Judge Paul Barbadoro.


 6/19/09
Monique J. Harrington v. City of Nashua, et al.
Case No. 06-cv-299-PB, Opinion No. 2009 DNH 089

Monique J. Harrington brought an action pursuant to 42 U.S.C. § 1983 against the City of Nashua, the Nashua Police Department, and Nashua Police Detective Mark Schaaf, alleging that defendants violated her Fourth Amendment right to be free from unreasonable seizures by restricting her liberty without reasonable suspicion and instituting legal process against her. She also asserted other state law claims. The court granted summary judgment for the defendants with respect to the federal claims. The court held that Harrington’s claim that she was detained without process was barred by the applicable statute of limitations, and that she failed to identify a seizure cognizable under the Fourth Amendment to support her claim for malicious prosecution. The state law claims were dismissed without prejudice. 17 Pages. Judge Paul Barbadoro.


TORT
6/9/09
Welcome v. Yezzi
Case No. 08-cv-429-SM, Opinion No. 2009 DNH 075

In this personal injury action, the defendant was granted judgment on the pleadings on the plaintiff’s claim for enhanced compensatory damages because New Hampshire law does not permit recovery of such damages in cases where a plaintiff has been injured by an intoxicated driver. And, because New Hampshire law is clear on the point, plaintiff’s request to certify a question of law to the New Hampshire Supreme Court was denied. 9 pages. Chief Judge Steven J. McAuliffe.


 6/10/09
Polley v. Harvard Pilgrim Health Care, Inc.
Case No. 08-cv-392-SM, Opinion No. 2009 DNH 080

The defendant employer was granted judgment on the pleadings on its former employee’s negligent infliction of emotional distress claim. The plaintiff failed to state a claim on which relief could be granted because her first ground, a claim that her former employer took too long to pay her the amount it owed her under an agreement to settle a workers’ compensation claim, was not a cognizable claim, (i.e., negligent performance of a contract), and her second ground for relief, a claim that the defendant mishandled her claims for various medical benefits, was one completely preempted by ERISA. 12 pages. Chief Judge Steven J. McAuliffe.

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