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Bar News - October 16, 2009


US District Court Decision Listing - September 2009

* Published

CIVIL RIGHTS
9/30/09
Freedom From Religion Fdtn. v. Hanover School, et al.
Case No. 07-cv-356-SM, Opinion No. 2009 DNH 142

Plaintiffs challenged the recitation of the Pledge of Allegiance in schools operated by the defendants on multiple constitutional grounds. Defendants moved to dismiss, and their motion was granted, largely on grounds that, notwithstanding inclusion of the words "under God" in the Pledge, recitation of the Pledge is not a religious activity and, therefore, does not violate the federal Establishment Clause. 36 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS: § 1983 PRISONER
9/4/09
Robert Boudreau v. Celia Englander, et al.
Case No. 09-cv-247-SM, Opinion No. 2009 DNH XXX

Plaintiff prisoner moved for temporary restraining order and preliminary injunction in civil rights action alleging an Eighth Amendment violation based on the NH Dept. of Corrections Medical Department’s failure to adequately treat his severe and chronic back pain. Plaintiff demonstrated he was likely to succeed on his Eighth Amendment claim because prison physician stopped plaintiff’s medication, which was effectively treating pain, without ensuring that his pain was adequately being treated either alternative medication or other medical resources. Prison doctor’s stated intention to develop a plan to manage plaintiff’s pain at some time "in the near future," without providing adequate treatment in the meantime, demonstrated doctor’s deliberate indifference to plaintiff’s serious medical needs. Requirement of irreparable harm is satisfied by undisputed evidence plaintiff is in constant and severe pain. The Court also found that the balance of hardships and public policy considerations weighed in favor of the issuance of a preliminary injunction. The Court recommended the temporary restraining order be denied as noncompliant with Fed. R. Civ. P. 65, but that a preliminary injunction issue directing the Department of Corrections to obtain an evaluation and plan for prisoner’s pain treatment from an independent medical professional, and to implement that plan. 53 pages. Magistrate Judge James R. Muirhead.


CIVIL RIGHTS: § 1983, EXCESSIVE FORCE
9/15/09
Carl Statchen v. Jason M. Palmer and Dick A. Scott
Case No. 08-cv-128-JD, Opinion No. 2009 DNH 137

The plaintiff brought a civil rights action against two police officers who took him into protective custody, alleging that they used excessive force which violated the Fourth Amendment and that their actions constituted an assault. The defendants moved for summary judgment, asserting, among other things, that no violation occurred and alternatively that they were entitled to qualified immunity. Four of the plaintiff’s exhibits filed in opposition to summary judgment were stricken for failure to comply with Federal Rule of Civil Procedure 56(e). Based on the record presented for summary judgment, the court concluded that no Fourth Amendment violation occurred, or in the alternative, that the defendants were entitled to qualified immunity. For similar reasons, no assault occurred. 26 pages. Judge Joseph A. DiClerico, Jr.


CIVIL RIGHTS: 4TH AMENDMENT; EXCESSIVE FORCE
9/18/09
Nelson Welshman v. Eric M. Brown, et al.
Case No. 08-cv-302-JL, No written opinion.

Summary judgment denied on motion by Town of Derry and three police officers involved in "Tasering" plaintiff while taking him into protective custody. Disputed material factual issues including but not limited to the level of plaintiff’s resistence, the impetus for the second "Tasering," and the source and causation of injuries made summary judgment inappropriate. No written opinion; order issued from bench after oral argument. Judge Joseph N. Laplante.


CRIMINAL LAW AND PROCEDURE
9/23/09
United States v. Anthony Harris
Case No. 09-cr-33/03-JL, Opinion No. 2009 DNH 140

After the jury convicted the defendant on five out of seven counts on a Hobbs Act robbery and weapons case, the defendant moved under Rule 29 that there was insufficient evidence to support any of the convictions on the grounds that the two acquitted verdicts necessarily meant that the jury rejected, as lacking credibility, testimony of a cooperating, immunized, co-defendant prosecution witness. The court denied the motion, ruling that the jury could have accepted or rejected all, part, or none of the witness’ testimony (as it had been instructed), and that, based on other evidence in the case, none of these possibilities rendered the conviction and acquitted verdicts inconsistent. 7 pages. Judge Joseph N. Laplante.


DISABILITIES LAW, TITLE IX, FIDUCIARY DUTY, EDUCATION LAW
9/18/09
Debra Franchi v. New Hampton School
Case No. 08-cv-395-JL, Opinion No. 2009 DNH 139*

The defendant, a private secondary school, moved to dismiss certain of the plaintiff’s claims against it arising out of its expulsion of her minor daughter, allegedly because she had an eating disorder. The court ruled that the plaintiff stated claims for (1) violations of Title III of the Americans with Disabilities and Rehabilitation Acts, despite the defendant’s argument that the plaintiff had not alleged a "disability," and (2) a violation of the Fair Housing Act, despite the defendant’s argument that the school dormitories were not "dwellings." The court also ruled, however, that the plaintiff failed to state claims for (1) violation of Title IX, because she had not alleged discrimination on the basis of sex, (2) breach of fiduciary duty, because the relationship between a secondary school and its students is generally not fiduciary as a matter of law, (3) violation of the Consumer Protection Act, because she had alleged nothing more than vague assurances disregarded by the defendant, rather than any unfair or deceptive act or practice, and (4) intentional infliction of emotional distress, because the defendant’s alleged conduct was not "utterly intolerable in a civilized society." 35 pages. Judge Joseph N. Laplante.


EDUCATION; IDEA
9/10/09
Alexandra R., et al. v. Brookline School District
Case No. 06-cv-215-JL, Opinion No. 2009 DNH 136

N.H. Department of Education’s dismissal, without a hearing, of request for an IDEA due process hearing was impermissible where due process request was timely filed, sufficiently stated claims, and was not objected to by school district on sufficiency or procedural grounds within 15-day deadline imposed by IDEA. Case remanded to NHDOE for required due process hearing. 12 pages. Judge Joseph N. Laplante.


EMPLOYMENT: ARBITRATION PROCEEDINGS
9/24/09
Stiles v. Chemical & Production Workers’ Union, Local No. 30
Case No. 08-cv-208-JM, Opinion No. 2009 DNH 09NH141P

Defendant moved for summary judgment on plaintiff Rosanne Stile’s claims that defendant union breached its duty to fairly represent her in her grievance proceedings against her former employer. Plaintiff failed to identify any portion of the collective bargaining agreement that gave rise to an individual cause of action against the union based on its representation of her. Plaintiff also failed to demonstrate defendant union breached its statutory duty of fair representation, because defendant’s decision to settle over plaintiff’s objection was neither arbitrary nor in bad faith, but was clearly reasonable, rational and in plaintiff’s interest. Defendant’s motion was granted. 34 Pages. Magistrate Judge James Muirhead.


HABEAS CORPUS
9/15/09
Gary Roberts v. Commissioner, NH Department of Corrections
Case No. 09-cv-159-PB, Opinion No. 2009 DNH 138

Plaintiff filed a habeas corpus petition challenging his state court conviction on the grounds that the Warden failed to provide him with a copy of the trial transcript and sought summary judgment without producing a transcript of the evidentiary hearing that the state court relied upon in rejecting his ineffective assistance of counsel claims. The court determined that it was evident from Plaintiff’s own summary judgment motion that he had access to the trial transcript, and that Plaintiff had failed to demonstrate by "clear and convincing evidence" that the factual findings of the state court were incorrect. Thus, the claimed error with regard to the trial transcript was inconsequential, and production of the hearing transcript was unnecessary. Petition denied. 4 pages. Judge Paul Barbadoro.


PERSONAL INJURY
09/30/09
Porter v. Dartmouth et. al.
Case No. 07-cv-28-PB, Opinion No. 2009 DNH 145

Christina Porter died from injuries that she suffered while participating in an introductory ski class to fulfill her physical education requirement at Dartmouth College, and Porter’s estate sued Dartmouth College for negligence and wrongful death. Dartmouth moved for summary judgment based upon an Equipment Rental and Liability Release Agreement that Porter signed prior to her accident, contending that the Release Agreement relieved Dartmouth College from any and all liability. Applying New Hampshire law, the court found that the Release Agreement did not state with sufficient clarity that Dartmouth was a party to the contract, and that it did not insulate Dartmouth from liability for negligence claims arising from ski instruction. Dartmouth’s motion for summary judgment was denied. 17 pages. Judge Paul Barbadoro.


PERSONAL JURISDICTION: COMMERCIAL LITIGATION
9/11/09
Pure Barnyard v. Organic Laboratories, Inc., et al.
Case No. 08-cv-501-JL, No written opinion.

Defendant’s motion to dismiss business tort claims sounding in fraud was denied. The plaintiff, a New Hampshire organic fertilizer manufacturer, demonstrated relatedness, purposeful availment and reasonableness by demonstrating prima facie factual basis for allegations that Florida defendants’ telephone conference call to plaintiff company’s board of directors contained false statements relied on by plaintiff company in agreeing to corporate merger-like transaction. Although court did not order limited jurisdictional discovery, it did delay oral argument to enable plaintiff to continue its independent investigation to discover facts substantiating its complaint, and, in turn, its jurisdictional burden. No written opinion; order issued from bench at oral argument. Judge Joseph N. Laplante.


PRODUCT LIABILITY; FAILURE TO WARN; FEDERAL PRE-EMPTION
9/30/09
Bartlett v. Mutual Pharmaceutical Co., Inc. et al.
Case No. 08-cv-358-JL, Opinion No. 2009 DNH 144*

Motion to dismiss pharmaceutical product liability case on pre-emption grounds denied. The defendants, manufacturers of a generic drug that allegedly caused life-threatening injuries to the plaintiff, moved for judgment on the pleadings on her state-law products liability claims, arguing that they were pre-empted by the Hatch-Waxman Amendments to the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 355(j), which required them to retain the same label on their generic version of the drug as the Food and Drug Administration (FDA) had approved for the branded version. The court interpreted the Hatch-Waxman Amendments and their implementing regulations to require a generic drug’s label to be the same as that of the branded version at the time of the FDA’s approval of the generic drug, but to expressly allow changes to the label to add or strengthen warnings post-approval. Accordingly, the court ruled that complying with both that federal regulatory scheme and state common-law requiring additional or stronger warnings on the defendants’ drug, as the plaintiff alleged, (1) was not impossible and (2) would not frustrate the purpose of the Hatch-Waxman Amendments to make cheaper generic drugs more widely available, given the absence of evidence that Congress intended to do so by supplanting state products liability law. 69 pages. Judge Joseph N. Laplante.


SECURITIES
9/30/09
US SEC v. Patel, et al.
Case No. 07-cv-39-SM, Opinion No. 2009 DNH 143

In this securities fraud case, which involves six defendants and more than a dozen different theories of liability, defendants’ motions to dismiss were granted in part and denied in part. Most dismissals resulted from a failure to plead fraud with the specificity required by Rule 9(b) of the Federal Rules of Civil Procedure. 161 pages. Chief Judge Steven J. McAuliffe.

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