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Bar News - September 18, 2009

US District Court Decision Listing - July 2009

* Published

Scott’s of Keene v. Piaggio USA
Case No. 09-cv-122-SM, Opinion No. 2009 DNH 100

Plaintiff filed suit in state court accusing defendant of violating a state statute governing vehicle manufacturers and dealers. Defendant removed the action and, among other things, challenged the constitutionality of that state statute (at least as plaintiff seeks to apply it). Invoking the Pullman abstention doctrine, plaintiff moved the court to remand the case so the state courts might have the first opportunity to address the proper scope and, if necessary, the constitutionality of the challenged state statute. The court denied that motion, concluding that, given its ability to certify any such questions directly to the New Hampshire Supreme Court, abstention was not warranted. Chief Judge Steven J. McAuliffe.

O’Mara v. Dionne, et al.
Case No. 08-cv-51-SM, Opinion No. 2009 DNH 107

In this suit challenging conditions of confinement at the Hillsborough County House of Corrections, defendant’s motion for summary judgment was granted as to the plaintiff’s right-to-counsel claim because the defendant’s alleged interference with that right consisted of nothing more than enforcing its legitimate postal and commissary rules. Summary judgment was otherwise denied, owing to deficiencies in the supporting material, including reliance on hearsay in affidavits and failure to produce documents referred to in affidavits. 14 pages. Chief Judge Steven J. McAuliffe.

Albert Rueben Kuperman v. State of New Hampshire, et al.
Case No. 09-cv-066-JD, Opinion No. 2009 DNH 099

Proceeding pro se and in forma pauperis, the plaintiff, who is incarcerated, brought civil rights claims challenging his sentences imposed by the state court. On preliminary review, the magistrate judge recommended that the claims be dismissed. The plaintiff objected to the report and recommendation, arguing that issue preclusion based on denial of his habeas corpus action did not apply, that the judges and prosecutors were not entitled to immunity, and that his civil rights claims should proceed regardless of his lack of success in the habeas action. The court adopted the report and recommendation and dismissed the plaintiff’s claims with prejudice. 7 pages. Judge Joseph A. DiClerico, Jr.

Ralph Holder v. Town of Newton et al.
Civil No. 08-cv-197-JL, Opinion No. 2009 DNH 110*

Defendant, the Rockingham County Department of Corrections, moved to dismiss the plaintiff’s claim under 42 U.S.C. § 1983 alleging that, as the result of a Department policy, he was detained there for eight hours after a bail commissioner determined the plaintiff was eligible for release on his own recognizance. The court denied the motion, ruling that the Constitution prohibits "overdetention," i.e., incarceration beyond the time authorized by a judicial order, even for a short time. The court noted, however, that the ultimate success of the plaintiff’s claim depended on factual questions about the nature of the bail commissioner’s actions and the Department’s policy that could not be answered based on the pleadings alone. As to the plaintiff’s claim that the Department had shown deliberate indifference to his serious medical needs during his detention, the court ruled that the plaintiff had not adequately alleged the requisite connection between that deprivation and any Department custom or policy, so that claim was dismissed. 16 pages. Judge Joseph N. Laplante.

Scrocca v. Alton Police Department, et al.
Civil No. 08-cv-42-JL, Opinion No. 2009 DNH 113

In a case involving the constitutional due process requirements of short-term school suspensions, Prospect Mountain High School’s (and its former vice principal’s) motion for summary judgment was granted. The plaintiff high school student received due process as a matter of law through informal oral notice of the accusations and evidence against him and an opportunity to explain himself prior to the imposition of a three-day suspension for vandalizing another student’s car and lying about it when confronted by the vice principal. As to the Fourth Amendment § 1983 claim and accompanying common law malicious prosecution claim arising from the arrest of the student’s father when he came to the school to challenge the suspension, the Alton Police Department and a detective were awarded summary judgment where the arrest for causing a school disturbance was unquestionably supported by probable cause. 18 pages. Judge Joseph N. Laplante.

Troy Cornock v. Trans Union LLC
Civil No. 07-cv-391-JL, Opinion No. 2009 DNH 115*

The defendant credit reporting agency moved for summary judgment on the plaintiff’s claim under § 611(a) of the Fair Credit Reporting Act, 15 U.S.C. § 1681li(a)(1)(A). The defendant argued that the plaintiff could not show that his credit report contained the inaccuracy necessary to trigger the defendant’s duty to conduct a reasonable reinvestigation under § 611(a), as interpreted by the court of appeals in DeAndrade v. Trans Union LLC, 523 F.3d 61 (1st Cir. 2008). The court agreed: though the plaintiff had disputed the account in question by pointing out that his ex-wife had opened it by forging his name, without his knowledge or authorization, an arbitrator had ruled, in a proceeding commenced by the creditor, that the plaintiff was liable anyway. Because any reasonable reinvestigation would have turned up this arbitration award, the court ruled that the plaintiff could not show that the defendant had inaccurately reported it, and therefore could not recover on his § 611(a) claim per DeAndrade. 23 pages. Judge Joseph N. Laplante.

Sun Life Assurance Co. of Canada v. Plaisted, et al.
Case No. 09-cv-108-SM, Opinion No. 2009 DNH 114

Plaintiff filed this interpleader action when it became clear that at least two parties had competing claims to the proceeds of an annuity purchased by the decedent. Defendants joined in moving to dismiss the action, invoking the "probate exception" to federal jurisdiction. The court denied that motion, noting that, under state law, annuities of the sort involved in this case are not part of an annuitant’s probate estate. Consequently, the case involves none of the three limited circumstances in which the probate exception applies: the interpleader action does not involve the probate or annulment of the decedent’s will, nor does it involve the administration of his estate, nor does it involve the disposition of property in the custody of the state probate court. 8 pages. Chief Judge Steven J. McAuliffe.

Harbour Capital Corporation v. Allied Capital Corporation
Case No. 08-cv-506-PB, Opinion No. 2008 DNH 106

Harbour Capital Corporation ("Harbour") filed a complaint against Allied Capital Corporation ("Allied"), alleging tortious interference with contractual relations and unfair trade practices under New Hampshire Revised Statutes Annotated ("RSA") § 358-A:2. Harbour alleged that Allied instructed its subsidiary to terminate its broker relationship with Harbour because of Harbour’s ongoing litigation with another Allied subsidiary in New Hampshire. Allied filed a motion to dismiss for lack of personal jurisdiction and failure to state a claim under RSA § 358-A:2. The court denied Allied’s motion to dismiss, holding that specific jurisdiction existed over Allied because it instructed its subsidiary to reach into New Hampshire and interfere with a New Hampshire contract in order to cause economic injury to Harbour in New Hampshire. Further, Harbour adequately stated a claim under RSA § 358-A:2 because the statute does not require unfair trade practices to occur within the territorial limits of New Hampshire if the defendant’s extra-territorial acts affect travel or commerce within New Hampshire. 23 pages. Judge Paul Barbadoro.

Rosemary A. Gilroy v. Ameriquest Mortgage Company and Ameriquest Mortgage Company Mortgage Services, Inc.
Case No. 07-cv-074-JD, Opinion No. 2009 DNH 108

The defendants’ post-judgment motions for relief were denied where defendants raised new arguments not raised at trial, failed to establish that the judgment was against the weight of the evidence, and offered no justification for their belated submission of allegedly relevant evidence. 14 pages. Judge Joseph A. DiClerico, Jr.

Darcy Archer v. Sue Methot, Gary Methot, and Snowflake Inn
Civil No. 09-cv-85-JD, Opinion No. 2009 DNH 104

The plaintiff brought copyright and trademark infringement and unfair trade practices claims against the defendants. Although counsel for the parties agreed to a proposed scheduling order, which was filed with the court, the plaintiff wanted a pretrial scheduling conference. The defendants objected to the conference as unnecessary. To accommodate the plaintiff, a date for the pretrial scheduling conference was set. Plaintiff’s counsel received the notice of the conference but entered the wrong day on his calendar and did not attend the conference or notify the court or opposing counsel that he would not attend. Defendants’ motion under Federal Rule of Civil Procedure 16(f), for an award of fees incurred by counsel in attending the conference, was granted. 5 pages. Judge Joseph A. DiClerico, Jr.

Danny Laplume v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 08-cv-476-PB, Opinion No. 2009 DNH 112

Danny Laplume, who suffers from deteriorating disc tissue, sought Supplemental Security Income benefits under the Social Security Act. The administrative law judge ("ALJ") denied his claim after finding that he was not disabled. Laplume filed a motion to reverse the ALJ’s decision. The court granted Laplume’s motion because the ALJ erred when he rejected the opinion of Laplume’s treating physician and gave controlling weight to a non-treating physician’s assessment without sufficient justification. The court also found that the ALJ committed legal error when he misinterpreted the requirements of the Listing of Impairments in determining whether Laplume was disabled. 17 pages. Judge Paul Barbadoro.

Dawn Eaton v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 08-cv-186-PB, Opinion No. 2009 DNH 102

Dawn Eaton applied for Social Security Income benefits on behalf of her daughter, Justine, who suffers from oppositional defiant disorder and attention deficit hyperactivity disorder. Eaton claimed that Justine’s mental impairments were so severe as to constitute an "extreme limitation" in her ability to care for herself. The administrative law judge ("ALJ") denied Eaton’s claim after finding that Justine was not severely limited in her ability to care for her own physical health and safety. Eaton filed a motion to reverse the ALJ’s ruling. The court denied her motion to reverse, finding that substantial evidence supported the ALJ’s ruling. 29 pages. Judge Paul Barbadoro.

Kevin & Paula Grant v. Wakeda Campground, LLC
Case No. 07-cv-249-JM, Opinion No. 2009 DNH 096

Plaintiffs Kevin and Paula Grant were injured when a tree branch crashed through their camper during a violent summer thunderstorm while camping at defendant Wakeda Campground. Plaintiffs sued defendant claiming negligence in the maintenance and operation of its property, specifically alleging breach of the duties to maintain the property in a safe condition, to monitor the weather, to warn about weather conditions and to close the campground when severe weather would expose campers to unnecessary and unreasonable danger. Defendant moved for summary judgment contending it had not been negligent. Applying New Hampshire law, the court found no breach of defendant’s duty to maintain the premises in a safe condition, and declined to find any of the other alleged weather-related duties. Since there was no duty that defendant breached, its failure to monitor the weather, warn plaintiffs about the storm and close the campground when severe weather is predicted was not negligent. Defendant’s motion for summary judgment was granted. 22 Pages. Magistrate Judge James Muirhead.

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