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Bar News - April 16, 2010

US District Court Decision Listing - March 2010

* Published

Michael Corosa v. Nashua Housing Authority and George F. Robinson
Case No. 09-cv-455-JD, Opinion No. 2010 DNH 053

Michael Corosa sued his employer and one of his supervisors, claiming that they violated his rights under the Americans with Disabilities Act. The defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The court granted the motion with respect to the supervisor, concluding that an individual who is the employer’s agent may not be held liable under the ADA. The motion was otherwise denied because Corosa’s allegations were sufficient to show that his ADA claim against his employer was plausible on its face. Judge Joseph A. DiClerico, Jr.

Taite v. Shineski, Secretary, Dep’t of Veterans Affairs
Case No. 08-cv-258-SM, Opinion No. 2010 DNH 036

The plaintiff sued her former employer under the Fair Labor Standards Act ("FSLA"), the Rehabilitation Act, Title VII of the Civil Rights Act, and New Hampshire common law, complaining principally of discrimination in her workplace based on race and disability that resulted in her constructive discharge. Only the FSLA claim survived summary judgment. The court granted summary judgment to the defendant on the Rehabilitation Act claim because the undisputed factual record demonstrated that the plaintiff was given a reasonable accommodation for her disability, because the plaintiff failed to establish a prima facie case of disability discrimination, and because she failed to produce evidence that the defendant’s non-discriminatory reasons for taking adverse employment actions against her were pretextual. The defendant was granted summary judgment on the Title VII discrimination claim because the plaintiff produced no evidence that the defendant’s explanations for the allegedly discriminatory employment actions were pretextual. The defendant was also granted summary judgment on the Title VII retaliation claim because none of the alleged acts of retaliation were materially adverse. The court granted the defendant summary judgment on the plaintiff’s common law claims because it lacked subject matter jurisdiction under the Federal Tort Claims Act ("FTCA"), due to the plaintiff’s failure to meet the FTCA’s exhaustion requirement. 57 pages. Chief Judge Steven J. McAuliffe.

Lara v. NH DH&HS
Case No. 08-cv-362-SM, Opinion No. 2010 DNH 042

The plaintiff sued her former employer for racial discrimination, under Title VII of the Civil Rights Act. The court denied summary judgment to the plaintiff and granted summary judgment to the defendant because the plaintiff failed to produce evidence to establish a prima facie case under any of the three theories of discrimination she advanced: failure to hire, disparate treatment, and creation of a hostile work environment. 20 pages. Chief Judge Steven J. McAuliffe.

Donna Boutin Real Estate, LLC, et al. v. Town of Epping, et al.
Case No. 08-cv-291-PB, Opinion No. 2010 DNH 045

The plaintiffs sued the Town of Epping and its former Code Enforcement Officer, Kevin Kelley, alleging that their constitutional rights had been violated. Plaintiffs did not identify the alleged constitutional violation with any precision. The defendants moved for summary judgment. The court understood the plaintiffs to assert a regulatory taking claim based upon (1) Kelley’s requirement that they retain consultants to identify and propose remedies for any code violations at their motel and (2) his threat to shut down the motel. The defendants, on the other hand, assumed that plaintiffs were attempting to assert either a procedural or a substantive due process claim. The court concluded that the defendants were entitled to summary judgment to the extent that plaintiffs were asserting due process claims that were distinct from their regulatory taking claim. The court also determined that plaintiffs were not entitled to maintain a regulatory taking claim in federal court without first exhausting available state inverse condemnation procedures, and thus remanded the case to state court. 6 pages. Judge Paul J. Barbadoro.

United States v. Goodman
Case No. 09-cv-216-SM, Opinion No. 2010 DNH 037

The government filed suit seeking to recover outstanding principal and interest on a student loan obtained by defendant in 1987. Defendant defaulted on that loan in 1989 and currently owes more than $12,000. After reviewing the record evidence, the court concluded that the government had demonstrated that it is entitled to judgment as a matter of law. Accordingly, it granted the government’s motion for summary judgment. 6 pages. Chief Judge Steven J. McAuliffe.

108 Degrees, LLC v. Merrimack Golf Club, Inc.
Civil No. 09-cv-298-JL, Opinion No. 2010 DNH 054

The defendants moved to dismiss the plaintiff’s claim for copyright infringement under the "work for hire" doctrine, see 17 U.S.C. § 201(b), and also moved to dismiss a promissory note claim because the plaintiff had not attached the note to its complaint. The court denied the motion. Because the defendants had not identified a written "work for hire" agreement between the parties, they could not satisfy the doctrine’s statutory requirements. And nothing in the Federal Rules of Civil Procedure required the plaintiff to attach the promissory note to its complaint. 10 pages. Judge Joseph N. Laplante.

Medline Industries, Inc v. 9121-3140 Quebec, Inc., et al.
Civil No. 09-cv-301-JL, Opinion No. 2010 DNH 040

Plaintiff medical products manufacturer sued Canadian resident and his now-dissolved corporation, alleging violations of the Telemarketing and Consumer Fraud Abuse Prevention Act and the Lanham Act. After default was entered against defendants, plaintiff moved for an assessment of damages, seeking injunctive relief, attorneys’ fees and costs, disgorgement of defendants’ profits, and trebling of the profits award. The court granted plaintiff’s request for injunctive relief and, holding this to be an "exceptional case" under § 1117(a) of the Lanham Act, awarded plaintiff attorneys’ fees and costs. The court also granted plaintiff’s request for defendants’ profits but declined to treble that award, instead enhancing the award by fifty percent. 19 pages. Judge Joseph N. Laplante.

Prince v. Metropolitan Life Insurance Co. et al.
Civil No. 08-cv-471-JL, Opinion No. 2010 DNH 046

In an Employee Retirement Income Security Act ("ERISA") case challenging the denial of an employee’s claim for disability benefits, the court granted judgment to the defendants, concluding that the record failed to show that the employee’s ear pain and other symptoms prevented her from working in a desk job. Thus, the defendants did not abuse their discretion by denying the employee’s claim for benefits. Nor were they required to reopen their decision based on the untimely submission of a medical report generated after the final decision date affirmatively requested by the employee. 35 pages. Judge Joseph N. Laplante.

Melissa Jenks, g/n/f of Roderick Jenks, and Melissa Jenks, Individually v. New Hampshire Motor Speedway, Inc., f/k/a New Hampshire Speedway, Breann M. Thompson, Textron, Inc., and "John Doe, "Inc.," Unknown Golf Cart Manufacturer
Case No. 09-cv-205-JD, Opinion No. 2010 DNH 038

Melissa Jenks, acting both as the guardian and next friend of her husband and on her own behalf, brought negligence, product liability, and loss of consortium claims against the defendants after her husband fell out of a golf cart driven by a New Hampshire Motor Speedway employee and suffered significant head trauma. NHMS and Thompson moved for summary judgment on the negligence claims on the ground that Jenks’s husband had signed a release of liability that covered the accident. The court denied summary judgment because Jenks raised a disputed issue of material fact, namely, whether a reasonable person in Mr. Jenks’s position would have understood the import of the exculpatory agreement. Judge Joseph A. DiClerico, Jr.

Dante Silva v. Warden, New Hampshire State Prison
Case No. 09-cv-388-JD, Opinion No. 2010 DNH 049

The petitioner sought relief under 28 U.S.C. § 2254 from his state court conviction and sentence on the ground that the state court’s decision to allow a lab report and testimony by an expert witness to show the results of blood tests violated his Confrontation Clause rights. Because the Supreme Court decided Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), after the pertinent state court decisions, the petitioner’s claim was based on Crawford v. Washington, 541 U.S. 36 (2004). In considering the Warden’s motion for summary judgment, the federal court concluded that the petitioner’s claim was exhausted and that the state court decisions were neither contrary to nor an unreasonable application of Crawford. Summary judgment was granted in favor of the Warden. 17 pages. Judge Joseph A. DiClerico, Jr.

James L. Noble, et. al. v. Direct Capital Corporation
Case No. 10-cv-22-PB, Opinion No. 2010 DNH 052

Plaintiffs originally filed a class action complaint against their former employer in state court seeking damages for its failure to pay required overtime under N.H. Rev. Stat. Ann. § 275:43, which obligates an employer to pay "all wages due." The defendant removed the case to federal court, claiming that Section 275:43 obligates an employer to pay overtime under the Fair Labor Standards Act of 1938 ("FLSA"), and therefore presented the type of federal question that warranted the exercise of federal question jurisdiction under 28 U.S.C. § 1331. Plaintiffs responded with a motion to remand, arguing that their claim was based on state law. The court granted the plaintiffs’ motion to remand, having found that the case turned on whether state law provides a right to recover for violations of federal overtime rules. 4 pages. Judge Paul Barbadoro.

Colonel Gary E. Lambert v. Raymond E. Mabus, Jr.
Case No. 09-cv-354-PB, Opinion No. 2010 DNH 048

Colonel Gary Lambert challenged the determination of the Board of Correction of Naval Records ("BCNR") that upheld a selective retention board ("SRB")’s decision to remove him from the Reserve Active Status List under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. The Secretary of the Navy responded with a Motion to Dismiss, contending that Lambert’s complaint was nonjusticiable. The court denied the Secretary’s motion, finding that all circuit courts have held that claims of this sort are justiciable when they are brought pursuant to the APA. 3 pages. Judge Paul Barbadoro.

Raitport v. Harbour Capital Corp.
Case No. 09-cv-156-SM, Opinion No. 2010 DNH 039
Holster v. BNA Subsidiaries, LLC
Case No. 09-cv-365-SM, Opinion No. 2010 DNH 044

Adopting the reasoning of the Seventh Circuit in Brill v. Countrywide Home Loans, Inc., 427 F.3d 466 (7th Cir. 2005), the court concluded that a private cause of action brought under the Telephone Consumer Protection Act is a claim arising under federal law and, therefore, one over which federal courts have subject matter jurisdiction. Accordingly, it denied the defendant’s motion to dismiss for lack of subject matter jurisdiction. 3 pages. Chief Judge Steven J. McAuliffe.

Guardian Angel Credit Union v. MetaBank et al.
Case No. 08-cv-261-PB, Opinion No. 2010 DNH 043

In July of 2008, Guardian Angel sued MetaBank after it discovered that a MetaBank employee had absconded with funds it had wired to MetaBank to purchase what turned out to be an unauthorized CD. In September of 2009, Guardian Angel moved to amend its complaint to add a claim under RSA § 382-A:4A, New Hampshire’s codification of Article 4A of the UCC, which governs funds transfers. Guardian Angel claimed that (1) MetaBank had violated § 382-A:4A-302(a)(1) by failing, as a "receiving bank," to properly execute a payment order and (2) MetaBank had violated § 382-A:4A-404(a) by failing, as a "beneficiary’s bank," to pay the amount of a payment order to the beneficiary of that order. The court denied the motion to amend, ruling that (1) MetaBank was a beneficiary’s bank and such banks cannot execute payment orders, and thus they cannot be held liable for failing to execute payment orders and (2) the relevant wire transfer instruction was not a "payment order" under Article 4A because it was conditional, and thus MetaBank cannot be held liable under § 382-A:4A-404(a). 7 pages. Judge Paul J. Barbadoro.

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