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Bar News - January 15, 2010

US District Court Decision Listing - December 2009

* Published

Philbrook v. Lemere, et al.
Case No. 08-cv-166-SM, Opinion No. 2009 DNH 182

Plaintiff, an inmate in the Sullivan County House of Corrections, brought suit against five correctional officers to recover for injuries he received when he was punched in the head by an officer on the team that extracted him from his cell during a jailhouse riot. Defendants’ unopposed motion for summary judgment was granted, as each submitted an affidavit saying that he did not punch plaintiff, and plaintiff submitted no evidence from which a fact-finder could ascribe individual liability. 5 pages. Chief Judge Steven J. McAuliffe.

Boudreau v. Englander, et al.
Case No. 09-cv-247-SM, Opinion No. 2009 DNH 192

Plaintiff, an inmate in the state prison who suffered from chronic degenerative disc-related back pain, sought preliminary injunctive relief, claiming the medical treatment he received from the named defendants was so substandard as to violate his constitutionally protected right to be free from cruel and unusual punishment. Specifically, he challenged defendants’ efforts to taper him off his daily dose of morphine (which was already elevated to near-toxic levels) and sought an injunction compelling them to resume providing him with 210mg of morphine daily. The court denied plaintiff’s motion, concluding that the medical care provided was not so obviously and shockingly deficient that it could conclude, without the benefit of expert medical testimony, that plaintiff was likely to prevail on his Eighth Amendment or state common law claims. No expert medical evidence was presented supporting plaintiff’s claim that the medical treatment plan prescribed by treating physicians was substandard in any way. 19 pages. Chief Judge Steven J. McAuliffe.

Maureen P. Brown, Administrator of the Estate of Catherine Wade v. City of Nashua, et al.
Case No. 08-cv-209-JD, Opinion No. 2009 DNH 187

The plaintiff brought a civil rights action, with related state law claims, against the City of Nashua and several Nashua police officers after Catherine Wade died of a drug overdose while being detained by the Nashua police. Specifically, the plaintiff alleged that the failure of the Nashua police to provide Wade with medical care amounted to deliberate indifference to her serious medical needs in violation of her Fourteenth Amendment rights. The court granted the defendants’ motion for summary judgment on the plaintiff’s civil rights claim, concluding that the summary judgment record did not show a trialworthy issue as to whether the officers involved drew the inference that Wade needed medical care but failed to provide it. The court declined to exercise supplemental jurisdiction over the plaintiff’s state law claims. Judge Joseph A. DiClerico, Jr., 13 pages.

Robert Rockwood and Roxana Marchosky v. SKF USA, Inc.
Case No. 08-cv-168-PB, Opinion No. 2009 DNH 184

SKF USA, Inc. moved to strike a jury demand filed by plaintiffs Robert Rockwood and Roxana Marchosky. The court granted SKF’s motion because the plaintiffs had waived their right to a jury trial in an option agreement entered into between the parties. 4 pages. Judge Paul Barbadoro.

United States v. Emanuel
Case No. 09-cv-185-SM, Opinion No. 2009 DNH 189

The government brought an action against defendant for defaulting on several student loans. Defendant conceded the factual allegations in the complaint, but defended on grounds that she plans to seek an administrative discharge due to a total and permanent disability, and asked the court to hold this matter in abeyance. The government moved for judgment on the pleadings, and the court granted the motion, noting that even if the government wins a judgment against defendant, she may still pursue an administrative discharge, which constitutes a separate and independent avenue of relief. 6 pages. Chief Judge Steven J. McAuliffe.

25 CP, LLC v. Firstenberg Machinery Co. and Grifols USA, LLC
Case No. 09-cv-80-PB, Opinion No. 2009 DNH 185

25 CP sued for breach of contract after Firstenberg, allegedly an agent selling an item for Grifols, an alleged undisclosed principal, failed to complete a sale. The defendants each moved to dismiss, claiming lack of personal jurisdiction. The court concluded that it could exercise specific personal jurisdiction over Firstenberg because (1) 25 CP’s claims were related to Firstenberg’s forum-based contacts, (2) Firstenberg purposefully availed itself of the privilege of conducting activities in New Hampshire, and (3) the exercise of jurisdiction was reasonable. In addition, the court concluded that Firstenberg’s contacts could be imputed to Grifols, and thus that the court could exercise personal jurisdiction over Grifols, if 25 CP could proffer sufficient evidence that Grifols was in a principal-agent relationship with Firstenberg. The court granted 25 CP sixty days for jurisdictional discovery to adduce such evidence. 33 pages. Judge Paul Barbadoro.

Samantha B. v. Hampstead School District
Case No. 08-cv-383-JL, Opinion No. 2009 DNH 196

The parents of Samantha B., a child diagnosed with various learning disabilities, challenged the New Hampshire Department of Education’s decision rejecting their claim that Samantha’s placement at the Hampstead Middle School was inappropriate and in violation of the Individuals with Disabilities Education Act ("IDEA"). The parents did not challenge the appropriateness of Samantha’s individualized education program at Hampstead Middle School, but rather whether the public school was an appropriate placement for their daughter. Samantha’s parents requested that the court reverse the department’s decision and award them costs associated with Samantha’s unilateral placement in a private school. The court affirmed the department’s decision, concluding that the record established that Samantha made appropriate educational progress in the least restrictive educational environment at Hampstead Middle School. 34 pages. Judge Joseph N. Laplante.

Kimberly Eldredge v. Walgreens Co.
Case No. 08-cv-188-PB, Opinion No. 2009 DNH 191

Walgreens filed a motion for summary judgment in a disparate treatment claim filed by Kimberly Eldredge under the Americans with Disabilities Act ("ADA"). The court granted Walgreens’ motion because Eldredge failed to establish that she was disabled or regarded as disabled within the meaning of the ADA. 14 pages. Judge Paul Barbadoro.

Adams v. J. Myers Builders, Inc.
Case No. 08-cv-425-JL, Opinion No. 2009 DNH 181*

In a case by homeowners against a builder for alleged negligence in starting a fire that destroyed their home and its contents, each party moved in limine to prevent the other’s designated expert witnesses from testifying at trial. The court ruled that, by operation of Rule 37(c)(1), the defendant’s proffered valuation experts could not testify due to its failure to provide expert reports from them; that failure was not harmless despite the defendant’s prior disclosure of certain information about those experts and their opinions, because that disclosure omitted a number of the categories of information required by Rule 26(a)(2)(B). But the court ruled that the plaintiff’s designated valuation expert could testify despite the lack of a report, because he was not "retained or specially employed to provide expert testimony" so as to trigger the report requirement of Rule 26(a)(2)(B); all that was required was that the plaintiffs identify him under Rule 26(a)(2)(A), which they did. The court also ruled that (1) the plaintiffs’ liability expert’s opinion was sufficiently reliable for admission under Rule 702, even though he had not performed experimental testing of his hypothesis as to the cause of the fire, and (2) under Rule 401, the defendant could not make reference to the fact that the plaintiffs’ property insurer had compensated them for part of the complained-of loss. 31 pages. Judge Joseph N. Laplante.

Nagle v. Warden, New Hampshire State Prison
Case No. 08-cv-413-JL, Opinion No. 2009 DNH 196
The defendants moved for summary judgment on an inmate’s civil rights suit alleging that prison guards used excessive force in responding to his seizure-like episodes and then later retaliated against him when he complained about it. The court granted the motion, concluding based on undisputed evidence that the guards acted in good faith and used only as much force as necessary under the circumstances to prevent the inmate from harming himself or others. The court also concluded that nothing in the record supported the inmate’s claim of retaliation. 21 pages. Judge Joseph N. Laplante.

Horstkotte v. Commissioner, New Hampshire Department of Corrections
Case No. 08-cv-61-JL, Opinion No. 2009 DNH 190

The defendants moved for summary judgment on an inmate’s civil rights suit alleging that the New Hampshire State Prison provided inadequate medical care for his hepatitis C infection. The court granted the motion, concluding that while the inmate may have preferred a more aggressive treatment, the prison had provided adequate medical care based on legitimate medical considerations, given the early stage of the disease. 18 pages. Judge Joseph N. Laplante.

Ben’s Auto Body, Inc. v. Progressive Direct Insurance Company and Progressive Casualty Insurance Company
Case No. 07-cv-417-PB, Opinion No. 2009 DNH 193

Ben’s Auto Body sued, alleging that Progressive had tortiously interfered with its relationships with a number of current and prospective customers by suggesting that they take their automobiles to competing repair shops. The court granted summary judgment because Ben’s did not provide sufficient evidence that Progressive acted improperly. 13 pages. Judge Paul Barbadoro.

Johnson v. General Dynamics Information Technology,Inc.
Case No. 09-cv-282-JL, Opinion No. 2009 DNH 194

The defendant moved to dismiss an employment discrimination suit for improper venue or, in the alternative, to transfer venue to its home district in Virginia. The court agreed that New Hampshire was an improper venue for the plaintiff’s claim under the Uniformed Services Employment & Reemployment Rights Act of 1994 (USERRA), because the defendants did not maintain a place of business there as required by USERRA’s special venue provision, 38 U.S.C. § 4323(c)(2). But the court denied the defendant’s motion and instead transferred venue to the District of Massachusetts, which was more convenient for the parties and better positioned to serve the interest of justice. 16 pages. Judge Joseph N. Laplante.

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