New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

A confidential, independent resource for NH lawyers, judges and law students.

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - June 18, 2010


US District Court Decision Listing: April (Addendum) & May 2010

* Published

ATTORNEY’S FEES
4/1/10
Moriarty v. SSA
Case No. 07-cv-342-SM, Opinion No. 2010 DNH 055

After successfully obtaining a favorable decision in claimant’s efforts to secure Social Security benefits, counsel sought approval of a contingent fee agreement, pursuant to which counsel would receive approximately $19,000 (representing 25% of claimant’s past-due benefits). The court approved that fee agreement, concluding that it was reasonable in light of the quality of counsel’s representation and the complexity of the issues presented in this case, some of which were previously unresolved in this circuit. 6 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS § 1983 (PRISONER)
4/12/10
Robinson v. Gordon, et al.
Case No. 09-cv-83-SM, Opinion No. 2010 DNH 066

Plaintiff, an inmate at the state prison, brought this action claiming defendants violated his constitutional rights by using excessive force against him. Defendants, in turn, brought a third-party complaint against their former employee, Dr. Ward, claiming that, to the extent plaintiff sought damages for alleged acts of medical mistreatment, Dr. Ward was obligated to indemnify them. The court granted Dr. Ward’s motion for summary judgment, concluding that plaintiff’s complaint did not actually assert claims of medical negligence or other torts for which Dr. Ward might be held liable. 6 pages. Chief Judge Steven J. McAuliffe.


CRIMINAL CASES (MOTIONS)
4/9/10
United States v. Brown (In Re: Claim of Bernhard Bastian, Jr.)
Case No. 09-cr-71-1-2-SM, Opinion No. 2010 DNH 065

The government sought to forfeit, as substitute property, a collection of firearms previously owned by defendant Edward Brown. A third party - Mr. Bastian - objected, asserting that Brown had transferred title to those firearms to him and that he was now their lawful owner. The government responded that because Brown was a convicted felon at the time of the transfer, he lacked authority not only to possess the firearms, but also was legally barred from transferring ownership, as that act would amount to an exercise of unlawful constructive possession. The court disagreed and concluded that title had effectively passed to Bastian, in accordance with an order of disposition issued by the Magistrate Judge, and that he was the lawful owner of the firearms in question. Accordingly, they were not subject to forfeiture as substitute property belonging to defendant Brown. 14 pages. Chief Judge Steven J. McAuliffe.


4/16/10
United States v. Gallant
Case No. 09-cr-177-1-SM, Opinion No. 2010 DNH 070

Defendant moved to dismiss an indictment charging him with false representation of a social security number and aggravated identity theft. Specifically, he claimed that while the indictment alleged that he used three non-unique identifiers (name, DOB, place of birth) that belonged to a real person, it also alleged use of a unique identifier that belonged to a different person (defendant had transposed two of the numbers in the first person’s social security number and that transposed number belonged to an actual person). Accordingly, defendant claimed that the identifiers, when viewed as a whole, do not identify a "specific individual," as required by statute. The court disagreed, holding that a jury could reasonably conclude that the transposition of the two numbers could have been either an unintended error by defendant or a purposeful effort to fool a credit-issuer, while simultaneously building a defense to the very charges defendant now faces. Motion to dismiss indictment denied. 20 pages. Chief Judge Steven J. McAuliffe.


PERSONAL INJURY
4/5/10
Moore v. Rockwood, et al.
Case No. 09-cv-329-SM, Opinion No. 2010 DNH 061

Plaintiff brought suit against a phlebotomist and his hospital employer, alleging that the phlebotomist assaulted her while she was a patient at the hospital. Defendants moved the court to refer plaintiff’s claims to the New Hampshire medical screening panel. Because New Hampshire’s statutory definition of "medical injury" is ambiguous and broad, and because it is unclear whether the injuries plaintiff suffered as a consequence of defendants’ alleged intentional conduct fall within that broad definition, the court denied defendants’ motion, without prejudice, and proposed to certify the issue to the New Hampshire Supreme Court. The parties subsequently waived panel review. 12 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS; PLEADING REQUIREMENTS
5/14/10
David Thibodeau v. Christopher Mudgett, et al.
Case No. 08-cv-309-JL, Opinion No. 2010 DNH 083

The defendants, a town and one of its police officers, moved for judgment on the pleadings on the plaintiff’s claims of malicious prosecution, negligent hiring and retention, and negligent training and supervision, arguing that they failed to state a plausible entitlement to relief. Denying the motion, the court ruled that, while the complaint was not rich with factual detail, it sufficiently alleged facts sufficient to state each of the claims in question. 9 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS § 1983 (PRISONER)
5/5/10
Robinson v. Hillsborough County, et al.
Case No. 09-cv-83-SM, Opinion No. 2010 DNH 076

Plaintiff, a former inmate in the Hillsborough County House of Corrections, brought suit claiming he was the victim of various common law torts and saying defendants violated his constitutionally protected rights. As to plaintiff’s federal claims, the court concluded that he failed to exhaust available prison administrative remedies as required by the PLRA. Plaintiff’s claim that his fear of possible restitution if he sought administrative remedies rendered those remedies "unavailable" was rejected. Defendants were, then, granted summary judgment as to those claims. As to plaintiff’s state common law claims, the court declined to exercise supplemental jurisdiction and remanded those claims to state court. 11 pages. Chief Judge Steven J. McAuliffe.


5/11/10
O’Neil, Sr. v. O’Mara, Jr., et al.
Case No. 08-cv-396-SM, Opinion No. 2010 DNH 082

Plaintiff, a pre-trial detainee in the Hillsborough County House of Corrections, claimed that the defendant was liable for deliberate indifference to his serious medical/mental-health needs. Summary judgment was granted to the defendant because the undisputed factual record completely disproved the factual premise of the plaintiff’s claim (i.e., that denied prescribed mental-health medication) and because the undisputed factual record also demonstrated that the plaintiff received constitutionally adequate mental-health care. 7 pages. Chief Judge Steven J. McAuliffe.


5/24/10
Boudreau v. Englander, et al.
Case No. 09-cv-247-SM, Opinion No. 2010 DNH 088

Plaintiff, an inmate in the state prison system, claimed defendants violated his constitutionally protected rights when they initiated a tapering program, reducing his medications (i.e., opiates) prescribed to treat chronic back pain. The court granted defendants’ motion for summary judgment, holding that the factual record conclusively established that the care plaintiff received was not so sub-standard as to shock the conscience, nor were defendants deliberately indifferent to plaintiff’s serious medical needs, and that no expert evidence was proffered, as required to support even a state medical negligence claim. 11 pages. Chief Judge Steven J. McAuliffe.


CLASS ACTIONS
5/5/2010
Guardian Angel Credit Union v. MetaBank, and Meta Financial Group, Inc.
Case No. 08-cv-261-PB, Opinion No. 2010 DNH 074

Guardian Angel Credit Union filed a renewed motion to certify a plaintiffs’ class action against MetaBank and Meta Financial Group, Inc. (collectively, "MetaBank") after the court denied an earlier motion. Guardian Angel alleged that (1) MetaBank breached a contract by failing to pay Guardian Angel the deposit amount of, and interest on, an unauthorized CD that Guardian Angel had acquired through a MetaBank employee; (2) MetaBank was negligent in the hiring, retention, and supervision of the employee; and (3) MetaBank was vicariously liable for the employee’s acts. MetaBank argued that Guardian Angel’s complaint did not satisfy the prerequisites of Federal Rule of Civil Procedure 23(a) or 23(b)(3). The court concluded that Iowa law applied to all class members’ claims, and thus that common legal issues predominated. The court also determined that, because all the class members had materially indistinguishable interactions with MetaBank and its employee, common factual issues predominated. Concluding that the other requirements of Rule 23(a) and Rule 23(b)(3) had been satisfied, the court granted the motion. 38 pages. Judge Paul J. Barbadoro.


CONSENT DECREE – CONTEMPT
5/19/10
Cassandra Hawkins, et al. v. Commissioner, New Hampshire Department of Health and Human Services
Case No. 99-cv-143-JD, Opinion No. 2010 DNH 085

On January 26, 2004, the court entered the parties’ Consent Decree, pertaining to the state’s obligations under the Medicaid laws to provide dental services to children under the Early and Periodic Screening, Diagnosis, and Treatment program, as a court order. After several disputes about the state’s compliance with the Decree, the plaintiffs moved to hold the Commissioner in contempt of the Consent Decree. The plaintiffs also sought modification of the Decree to extend its duration and the court’s jurisdiction to enforce the Decree. The court concluded that the plaintiffs had not met their burden of clear and convincing evidence to show that the Commissioner is in contempt of the Decree. The court also denied the plaintiffs’ request to extend the duration of the Decree and the court’s jurisdiction to enforce it. 18 pages. Judge Joseph A. DiClerico, Jr.


CRIMINAL LAW; MOTION FOR JUDGMENT OF ACQUITTAL
5/14/10
United States v. Peng Da Lin
Case No. 09-cr-182-01-JL and United States v. Guo Qiao Lin
Case No. 09-cr-183-01-JL. No opinion number.

After being convicted of trafficking in counterfeit goods, in Derry, New Hampshire, the defendants each moved for a judgment of acquittal under Fed. R. Crim. P. 29(c), emphasizing that a third defendant had been acquitted of similar charges on similar evidence. The court denied the motions, concluding that the evidence was sufficient to sustain both guilty verdicts. 3 pages. Judge Joseph N. Laplante.


EMPLOYMENT: ERISA
5/7/10
Kristin L. Boyson v. Dartmouth Hitchcock Clinic and Hartford Life and Accident Insurance Company
Case No. 09-cv-119-PB, Opinion No. 2010 DNH 077

Kristin Boyson brought an Employee Retirement Income Security Act ("ERISA") action to recover benefits allegedly owed to her under the terms of a long-term disability policy provided by her former employer, Dartmouth Hitchcock Clinic ("DHC") through Hartford Life and Accident Insurance Company ("Hartford"). Both Boyson and Hartford moved for judgment on the administrative record. The court granted Hartford’s motion and denied Boyson’s motion, having found that Hartford’s decision to deny Boyson’s long-term disability benefits was reasonable. 40 pages. Judge Paul J. Barbadoro.


HABEAS CORPUS
5/24/10
Haniffy v. NHSP Warden
Case No. 08-cv-268-SM, Opinion No. 2010 DNH 090

Summary judgment was granted to the respondent on grounds that the habeas petitioner had procedurally defaulted his federal constitutional claims in state court by failing to raise a contemporaneous objection, by failing to raise the issues in his notice of appeal, and by failing to brief the issues before the New Hampshire Supreme Court. 17 pages. Chief Judge Steven J. McAuliffe.


INSURANCE
5/5/2010
Beatrice M. Hunt v. Golden Rule Insurance Co.
Case No. 09-cv-51-PB, Opinion No. 2010 DNH 075

Beatrice M. Hunt petitioned for declaratory judgment that Golden Rule Insurance Company breached its contract with her and, alternatively, that Golden Rule violated New Hampshire RSA § 417. Golden Rule moved for summary judgment. Hunt argued that she was entitled to payment up to her policy’s lifetime limit of $1,000,000 because the policy was ambiguous about whether there was a $10,000 lifetime limit on coverage for mental or nervous disorders. Hunt alternatively alleged that Golden Rule’s $10,000 cap on benefits for mental or nervous disorders was either unenforceable and/or void under New Hampshire law because it unfairly discriminated between policyholders who had mental or nervous disorders and those who did not. The court granted summary judgment after determining that the policy unambiguously limited the relevant coverage to $10,000, and that such a limitation was not prohibited by New Hampshire law. 12 pages. Judge Paul J. Barbadoro.


5/24/10
Northeast Credit Union v. CUMIS Insurance Society, Inc.
Case No. 09-cv-88-SM, Opinion No. 2010 DNH 089

Plaintiff sought a declaratory judgment that it was entitled to coverage under the employee-dishonesty provision of a Credit Union Bond for losses it sustained when an escrow agent, an attorney, absconded with funds he should have disbursed in connection with a real estate closing. Summary judgment was granted to the defendant on grounds that the escrow agent’s qualifications as a licensed attorney did not render him a "retained attorney providing legal services," a necessary prerequisite to coverage under the Bond. 13 pages. Chief Judge Steven J. McAuliffe.


PERSONAL INJURY
5/21/10
Pardy v. Alabama Farmers Cooperative, Inc., et al.
Case No. 09-cv-192-SM, Opinion No. 2010 DNH 087

Robert Pardy died from carbon monoxide poisoning in housing provided to him by his employer, the defendant. This suit ensued. Defendant moved for summary judgment, asserting that the claims advanced by Pardy’s estate are barred by New Hampshire’s Workers’ Compensation law. The court denied that motion, concluding that the estate’s claims implicated the "dual capacity doctrine" and there remained unresolved questions of fact concerning whether defendant was acting as Pardy’s employer or as his landlord when Pardy died. 9 pages. Chief Judge Steven J. McAuliffe.


PERSONAL JURISDICTION
5/25/10
Aftokinito Properties, Inc. and Stephan Condodemetraky v. Millbrook Ventures, LLC, Pedro Torres, and Stephen Garofalo
Case No. 09-cv-415-JD, Opinion No. 2010 DNH 091

Aftokinito Properties, Inc. and Stephan Condodemetraky sued Millbrook Ventures, LLC, Pedro Torres, and Stephen Garofalo, alleging, inter alia, breach of contract. The defendants, a New York company and two Florida residents, moved to dismiss for lack of personal jurisdiction. The court found that it had specific personal jurisdiction over the defendants, and denied the motion. The contract at issue was allegedly breached during a phone call with Condodemetraky when he was in New Hampshire, and the defendants knowingly contracted with and employed a New Hampshire company and a New Hampshire resident. Moreover, the burden on the defendants, who work in New York, of appearing was small. 18 pages. Judge Joseph A. DiClerico, Jr.


SUMMARY JUDGMENT - INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS
5/12/10
Samuel J. Bourne v. Town of Madison, et al.
Case No. 05-cv-365-JD, Opinion No. 2010 DNH 092

After all but one of the plaintiff’s claims against the Town of Madison, its selectmen, and one of its residents were dismissed, the parties moved for summary judgment on the remaining claim, intentional interference with contractual relations. The court denied the plaintiff’s motion, concluding that he had not shown a triable issue on that claim. The court granted the defendants’ motion because the record evidence did not show that the defendants acted improperly in limiting the plaintiff’s access to and work done on the disputed right-of-way, known as Solomon Harmon Road. 32 pages. Judge Joseph A. DiClerico, Jr.


TELECOMMUNICATIONS ACT; INTERVENORS, JURISDICTION
5/7/10
Industrial Communication and Electronics, et al. v. Town of Alton, et al. (07cv82); Industrial Tower and Wireless, et al. v. Town of Epping, et al. (08cv122),
Opinion No. 2010 DNH 081*

The plaintiff wireless providers brought suits alleging that the defendant towns had denied permission to construct cellphone towers in violation of the Telecommunications Act of 1996, 47 U.S.C. § 332. In each case, one or more landowners whose property abutted the proposed tower site was permitted to intervene in the early stages, but did not assert any independent claims. Eventually, the providers and the towns settled their disputes, and asked the court to enter judgment resolving the cases. The abutters purported to object to the proposed settlements. The court entered judgment over their objections, ruling that (1) the abutters had not timely asserted any claims of their own, (2) the claims the abutters were now trying to assert did not fall within the court’s subject-matter jurisdiction, and therefore could not be heard following dismissal of the providers’ federal claims against the towns according to the settlement, (3) the TCA did not provide a cause of action for a locality’s decision to allow, rather than to disallow, wireless facilities, and (4) in entering judgment, the court did not need to, and therefore did not, consider whether the settlements complied with state law on the issuance of land use permits. 14 pages. Judge Joseph N. Laplante.


TRADEMARK INFRINGEMENT/UNFAIR COMPETITION
*05/05/10
Northeastern Lumber Manufacturers Assoc. v. Northern States Pallets Company, Inc., et al.
Case No. 09-cv-290-JM, Opinion No. 2009 DNH 080P

Plaintiff moved for summary judgment on claims that defendants misappropriated its trademark in violation of the Lanham Act and the N.H. Consumer Protection Act when they used plaintiff’s certification mark to stamp their lumber products without any license or other authority from plaintiff to do so. Summary judgment on plaintiff’s Lanham Act claims was denied because genuine disputes of material fact about the misappropriated stamp remained, including questions about the stamp’s appearance and what the stamp certified, for purposes of determining the likelihood of confusion in the relevant public. Summary judgment was granted on the RSA 358-A claims, because the record clearly showed defendants intentional, deceptive and unauthorized use of plaintiff’s stamp to unfairly profit the business. The claims were valid against the individual owner of the business, who was found directly liable based on his own conduct, not based on an application of the doctrine of piercing the corporate veil. 24 pages. Magistrate Judge James Muirhead.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer