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Bar News - September 18, 2009

US District Court Decision Listing - August 2009

* Published

Rosemary Gilroy v. James Kasper, et al.
Civil No. 07-cv-300-JL, Opinion No. 2009 DNH 129

Defendant private lender’s and affiliates’ motion for summary judgment granted, resulting in dismissal of pro se plaintiff’s fraud, intentional infliction of emotional distress, and NH Consumer Protection Act claims where plaintiff’s conclusory allegations in summary judgment opposition filings did not satisfy Rule 56(e)’s requirements pertaining to personal knowledge, competent evidence, and testimony, and did not establish genuine issues of material fact. 17 pages. Judge Joseph N. Laplante.

Monique J. Harrington v. City of Nashua, et al.
Case No. 07-cv-299-PB, Opinion No. 2009 DNH 123

Plaintiff filed a motion for reconsideration of a prior order, wherein the court dismissed her claims for false arrest and malicious prosecution. Plaintiff specifically challenged the court’s ruling with respect to her malicious prosecution claim, and she argued that her continued detention after a criminal complaint was filed against her was the result of her prosecution rather than her arrest. The court determined that plaintiff’s detention prior to her release on bail was the result of her arrest rather than her prosecution, and that any constitutional claim for damages resulting from this detention must be brought as an unlawful detention claim rather than as a malicious prosecution claim. Motion denied. 4 Pages. Judge Paul Barbadoro.

Deborah Dowlin v. Community Alliance of Human Services
Civil No. 09-cv-43-JL, Opinion No. 2009 DNH 125

The defendant, a nonprofit transportation company for the disabled, moved to dismiss, under Rule 12(b)(1), the plaintiff’s negligence action and request for injunctive relief under the Americans with Disabilities Act, arguing that since the plaintiff was not entitled to ADA-based injunctive relief, the court lacked jurisdiction to hear the case. The court denied the motion to dismiss, rejecting the defendant’s arguments (based on subsequent remedial measures, adequacy of legal remedy, and irreparable harm) as procedurally improper, but ordered limited discovery on the plaintiff’s request for injunctive relief in order to facilitate consideration of the injunction issue, which has potentially dispositive jurisdictional ramifications. 10 pages. Judge Joseph N. Laplante

William Soukup v. Robert Garvin, et al.
Civil No. 09-cv-146-JL, Opinion No. 2009 DNH 120

In a § 1983 action involving Fourth Amendment claims, plaintiff established genuine issues of material fact, prohibiting summary judgment in favor of former Lisbon police officer based on a qualified immunity defense. The corresponding claims against the town of Lisbon were dismissed on a Rule 12(c) motion for judgment on the pleadings where the plaintiff’s conclusory allegations were insufficiently specific to state a claim under Rules 8 and 12(b), and Supreme Court and First Circuit authority interpreting those rules. 10 pages. Judge Joseph N. Laplante.

Keith MacConnell, et al. v. City of Nashua, et al.
Case No. 07-cv-369-JM, Opinion No. 2009 DNH 130*

Defendant moved for summary judgment on plaintiff Keith MacConnell’s claims of false arrest, malicious prosecution and violations of his Fourth Amendment rights based on an allegedly improper arrest, search and seizure of MacConnell and his property without probable cause. There were no issues of material fact that defendants had probable cause to arrest MacConnell, to search and seize his property, and to prosecute the criminal charges against him. Plaintiff’s malicious prosecution claim also failed because the facts demonstrated the nolle prosse of his underlying criminal charges was not a termination in his favor. Finally, the undisputed facts showed plaintiff also had no Fourth Amendment claim for unconstitutional seizure of his liberty based on his bail conditions. Defendants’ motion was granted. 38 Pages. Magistrate Judge James Muirhead.

Guardian Angel Credit Union v. MetaBank et al.
Case No. 08-cv-261-PB, Opinion No. 2009 DNH 119

Pursuant to Federal Rule of Civil Procedure 23, plaintiff filed a motion for class certification of its claims against defendants for breach of contract, negligent hiring, retention, and supervision of an employee, and on a vicarious liability theory for the acts and omissions of its employee, including conversion, fraud, theft, and negligence. Plaintiff asserted that its Complaint satisfies all of the Rule 23(a) prerequisites and is eligible for certification under either Rule 23(b)(1) or Rule 23(b)(3). The court determined that plaintiff had not met its burden of demonstrating that certification was warranted under either prong of Rule 23(b). Motion denied. 16 Pages. Judge Paul Barbadoro.

Nordica S.p.A., Nordica USA Corp. v. ICON Health & Fitness, Inc.
Case. No. 06-CV-451-PB, Opinion No. 2009 DNH 118

Nordica S.p.A. and its wholly owned subsidiary, Nordica USA, ("Nordica") filed an action against ICON HEALTH & FITNESS ("ICON"), alleging that ICON violated the terms of a settlement agreement previously reached between the parties that addressed ICON’s use of a trademark. The parties filed cross motions for summary judgment. In particular, Nordica complained that ICON filed trademark applications in the United States and offered for sale via the internet certain goods that contravened the terms of the settlement agreement. The court found that, with respect to the trademark applications, Nordica had failed to name the proper party, and that, with respect to the internet advertising, Nordica had not demonstrated that the evidence was admissible. Both parties’ motions for summary judgment were denied, and the ruling was without prejudice to Nordica’s rights to file an amended complaint naming another defendant and to establish the evidentiary foundation for the website advertising pages. 22 Pages. Judge Paul Barbadoro.

C.A.L.L. Group, Inc. v. Exxon Mobil Corp., et al.
Case No. 08-cv-391-PB, Opinion No. 2009 DNH 124

Plaintiff brought a six count complaint against defendants. The dispute centered around plaintiff-franchisee’s operation of two Mobil-branded retail stations in Manchester, New Hampshire. Defendants filed a motion to remove the case to federal court, and plaintiff objected. The court held that because the Petroleum Marketing Practices Act preempts conflicting state laws concerning the termination or nonrenewal of a motor oil franchise agreement, any claims asserted by plaintiff related to termination or nonrenewal were removable by defendants. Plaintiff was given thirty days to clarify whether it intended to bring a claim regarding termination or nonrenewal, or whether it would disavow those claims, thereby ensuring that the matter be remanded to state court to address the remaining state law claims. 14 Pages. Judge Paul Barbadoro.

United States v. Anthony Harris
Criminal No. 09-cr-33/03-JL, Opinion No. 2009 DNH 128

In a Hobbs Act robbery and conspiracy prosecution, the defendant’s motion to dismiss under the Speedy Trial Act was denied where two periods of "excludable time" had reduced the number of elapsed days since indictment to well under the 70-day limit: the delay attributable to a court-ordered competency evaluation, see 18 U.S.C. § 3161(h)(1)(A), and two 60-day continuances granted on motions by codefendants where no severance had been ordered or requested. See 18 U.S.C. § 3161(h)(6). 8 pages. Judge Joseph N. Laplante.

William Carey Carlberg, Jr. v. New Hampshire Department of Safety, et al.
Case No. 08-cv-230-PB, Opinion No. 2009 DNH 126

The parties filed cross motions for summary judgment on plaintiff’s claim under 42 U.S.C. § 1983 that he was wrongfully decommissioned without due process of law by his employer, the New Hampshire Department of Safety, and its Commissioner during a department reorganization. The plaintiff asserted a protected property interest in his continued employment as a commissioned Lieutenant. He also asserted a protected liberty interest in his reputation, which he alleged was besmirched by the defendants’ actions. The court determined that the plaintiff was not deprived of a constitutionally protected property interest because employees have no vested right to protection from a departmental reorganization conducted in accordance with the requirements of state law. The court also determined that the plaintiff was not deprived of a protected liberty interest because there was no evidence that the defendants disseminated any negative of defamatory information about the plaintiff. The court granted summary judgment for the defendants on the wrongful decommissioning claim and declined to exercise supplemental jurisdiction over the remaining state law claims. 19 Pages. Judge Paul Barbadoro

Industrial Tower and Wireless, LLC v. Town of East Kingston, NH
Case No. 07-cv-399-PB, Opinion No. 2009 DNH 127

Industrial Tower and Wireless, LLC ("ITW") moved for partial summary judgment on the claim that East Kingston’s Zoning Board of Adjustment ("ZBA") violated the Telecommunications Act of 1996 when it denied ITW’s application for a variance to construct a wireless telecommunications tower because its grounds for denial were not supported by substantial evidence. East Kingston and an Intervenor filed corresponding cross motions for summary judgment. The court determined that the ZBA’s written decision was valid and that the grounds for its denial were supported by substantial evidence. The court denied ITW’s motion for summary judgment and granted the Town and the Intervenor’s motions for summary judgment on ITW’s substantial evidence claim. 34 Pages. Judge Paul Barbadoro.

Industrial Tower and Wireless, LLC v. Town of Epping and Jane Burley
Civil No. 08-cv-122-JL, Opinion No. 2009 DNH 121

The plaintiff, a provider of wireless communications services, moved for summary judgment on its claim against the defendant Town under § 704(a) of the Telecommunications Act of 1996, 47 U.S.C. § 332(a)(7)(B)(iii), that the Town’s decision denying a permit for a 150-foot wireless tower was not supported by substantial evidence. The court ruled that substantial evidence supported the decision that, as contemplated by the Town’s zoning by-law requiring the placement of wireless facilities on existing structures if feasible, the existing state police tower was a feasible alternative to the plaintiff’s proposed site, either alone or in conjunction with a second tower, shorter than that proposed by the plaintiff, at its proposed site. The court rejected the plaintiff’s arguments that

(1) because coverage from the state police tower would not close the same gap as coverage from the plaintiff’s proposed site, the state police tower was not feasible as a matter of law, and

(2) evidence the Town received from an abutter and her consultant as to the availability and structural integrity of the state police tower was not "competent." The motion was denied, and the plaintiff was ordered to show cause why summary judgment should not enter against it on its substantial evidence claim. 30 pages. Judge Joseph N. Laplante.

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