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Bar News - May 14, 2010

US District Court Decision Listing - April 2010

* Published

Todd M. Horstkotte v. NH Department of Corrections, et al.
Civil No. 08-cv-205-JL, Opinion No. 2010 DNH 058

The defendants moved for summary judgment on an inmate’s civil rights suit alleging that prison guards retaliated against him for threatening to file grievances. The court granted the motion, concluding based on undisputed evidence that the defendants’ challenged actions were de minimis and therefore could not satisfy the "adverse action" element of the retaliation test. The court also concluded that there was insufficient evidence to create a genuine issue of material fact as to whether the guards acted with retaliatory intent. 15 pages. Judge Joseph N. Laplante.

Sleeper Village, LLC v. NGM Insurance Co.
Case No. 09-cv-44-PB, Opinion No. 2010 DNH 064

Sleeper Village, the owner of a residential housing development project, filed a petition for declaratory judgment and damages seeking to recover on a performance bond issued by NGM. NGM moved for summary judgment, claiming that (1) Sleeper Village had failed to comply with Section 3.3 of the bond because it had not, after declaring a contractor default, agreed to pay the contract’s unpaid balance either to NGM or a contractor selected to complete the project, and (2) Sleeper Village had violated Section 5 of the bond, which in most cases obligates the owner to provide notice to the surety that the surety is in default. The court determined that Sleeper Village had complied with Section 3.3 of the bond but that NGM was entitled to partial summary judgment with respect to its contentions regarding Section 5 of the bond. 7 pages. Judge Paul J. Barbadoro.

Griffiths v. Certain Underwriters, et al.
Civil No. 08-cv-507-JL, Opinion No. 2010 DNH 069

The defendant insurer moved for summary judgment on its insured’s claim that it had breached the policy by refusing payment for a loss based on alleged misrepresentations in his insurance application, viz., that he had not been indicted for "the crime of fraud" within the past five years even though there were multiple indictments for felony forgery pending against him at the time of the application. First, the court agreed with the plaintiff that it could not consider his deposition transcript in ruling on the summary judgment motion because, in violation of Fed. R. Civ. P. 30(e)(1), he had not been given an opportunity to review the transcript until it had been filed with the motion itself, despite the parties’ stipulation that he would waive that opportunity if he failed to sign the transcript within thirty days. Second, the court nevertheless granted the defendants’ motion for summary judgment, ruling that the other evidence of record conclusively established as a matter of law that (1) the phrase "the crime of fraud," as used in the application, included the crime of felony forgery, which requires an intent to deceive, (2) Griffiths knew that he had been indicted for such a crime, in light of his statements to the Superior Court that he had discussed the indictments with his attorney and understood the nature of the charges against him, (3) given this knowledge, and the recency of the indictments, a rational factfinder would have to conclude that Griffiths acted with fraudulent intent in denying he had been indicted for the crime of fraud, and (4) the misstatement was material in light of the insurer’s uncontroverted statement that it does not issue policies to applicants who have been indicted for fraud within the past five years. 30 pages. Judge Joseph N. Laplante.

United States v. Peng Da Lin
Criminal No. 09-cv-182-JL, Opinion No. 2010 DNH 071P*

In a criminal case charging the defendant with trafficking in counterfeit goods, the prosecution moved in limine to admit an affidavit that the defendant had submitted to federal immigration authorities in which he discussed a prior arrest for allegedly selling brand-name goods without authorization a few years earlier. The court denied the motion, concluding that the affidavit was inadmissible in the case-in-chief because it was not "specially probative" (the First Circuit standard) of the defendant’s knowledge that the goods at issue in the current case were counterfeit, and whatever slight probative value it might have was substantially outweighed by the danger of unfair prejudice. 11 pages. Judge Joseph N. Laplante.

Frost, et al. v. Town of Hampton, et al.
Civil No. 09-cv-339-JL, Opinion No. 2010 DNH 072

After settling a civil rights case relating to their arrest for preaching too loudly near the Hampton Beach boardwalk, the plaintiffs moved for an award of attorneys’ fees and costs under the Fees Act, 42 U.S.C. § 1988(b). The court granted the motion in part, awarding about half of the amount requested. Most of the hours spent by plaintiffs’ counsel were reasonable and productive, but the court reduced some hours because the plaintiffs used a team of attorneys on a fairly simple case that settled at an early stage. 17 pages. Judge Joseph N. Laplante.

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