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Bar News - July 16, 2010


US District Court Decision Listing - June 2010

* Published

AMERICANS WITH DISABILITIES ACT (ADA)TITLE II; PLEADINGS
6/18/10
Skinner v. Salem School Dist.,
Civil No. 09-cv-193-JL, Opinion No. 2010 DNH 106*

Plaintiff Carol Skinner sued the Salem School District under Title II of the ADA, 42 U.S.C. § 12132, alleging that it discriminated against her and fired her from a food service job because of a disabling arthritic condition. The School District moved for judgement on the pleadings, arguing that Title II cannot be used to bring an employment discrimination claim against a public entity because Title I expressly covers employment. Denying the motion, the court found that the statute was ambiguous and, therefore, deferred to the implementing agency, the Department of Justice, which construed Title II as encompassing employment discrimination claims against public entities. The court reviewed competing conclusions by the Eleventh Circuit (allowing employment discrimination claims against public entities under Title II) and the Ninth Circuit (disallowing them), skeptical Supreme Court dicta, and First Circuit dicta that the statute is ambiguous, noting that if favored the Eleventh Circuit’s conclusion on textual grounds. First Circuit dicta and divisions within the courts indicated that the statute was ambiguous, however, thereby mandating Chevron deference to the interpreting agency. 14 pages. Judge Joseph N. Laplante.


ARBITRATION
6/10/10
Dartmouth Hitchcock Medical Center v. Cross Country Travcorps, Inc., d/b/a Cross Country Staffing (and their affiliates), and CHG Medical Staffing, Inc., d/b/a RN Network,
Case No. 09-cv-160-JD, Opinion No. 2010 DNH 102

Following a medical negligence verdict against Dartmouth Hitchcock Medical Center, DHMC brought indemnification and contribution claims against Cross Country Travcorps, Inc. and CHG Medical Staffing, Inc., and a breach of contract claim against CHG. CHG moved for summary judgment on all three claims against it, arguing that DHMC was required by contract to arbitrate the indemnification and breach of contract claims, and that the contribution claim should be submitted for arbitration with the others in the interest of judicial economy. The court granted the motion with respect to the indemnification and breach of contract claims. Even though DHMC was not a signatory to the contract containing the arbitration clause, DHMC was required to arbitrate because it was a third-party beneficiary of the contract. The court denied the motion with respect to the claim for contribution because the arbitration provision did not apply to that claim. 19 pages. Judge Joseph A. DiClerico, Jr.


CIVIL RIGHTS (PRISONER)
6/28/10
Thompson v. Gordon, et al.
Case No. 09-cv-82-SM, Opinion No. 2010 DNH 104

In this excessive-force case, brought under 42 U.S.C. § 1983, the federal claim was dismissed, and the state claims remanded to the New Hampshire Superior Court, because the plaintiff failed to exhaust the administrative remedies available to him in the Hillsborough County House of Corrections, as required. 6 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS (PRISONER)
6/28/10
Marquez v. Antilus, et al.
Case No. 08-cv-522-SM, Opinion No. 2010 DNH 103

In this excessive-force case, the defendants moved for summary judgment on the plaintiff’s federal claim, brought under 42 U.S.C. § 1983, on grounds that he failed to exhaust the administrative remedies available to him in the Hillsborough County House of Corrections. Because the plaintiff produced sufficient evidence that some of the defendants threatened him with retaliation in the event he sought institutional redress for their alleged use of excessive force against him, the defendants’ motion for summary judgment was denied. 5 pages. Chief Judge Steven J. McAuliffe.


CRIMINAL CASES
6/4/10
United States v. Witham
Case No. 00-cr-17-2-SM, Opinion No. 2010 DNH 097

The government moved to reconsider the court’s entry of an order of continuing garnishment against the wages of a previously convicted felon, who was still under an obligation to pay restitution to the victims of his crime. The government sought reconsideration on grounds that the ordered garnishment amount was too little. The court reconsidered, but determined that First Circuit precedent bars the government from using the procedures established in the Federal Debt Collection Procedures Act to collect restitution owed to private crime victims, as it did in this case. Accordingly, the order of continuing garnishment was vacated. 9 pages. Chief Judge Steven J. McAuliffe.


HABEAS CORPUS - CONFRONTATION CLAUSE
6/9/10
Oliver Hooper v. Warden, Northern New Hampshire Correctional Facility
Case No. 08-cv-426-JD, Opinion No. 2010 DNH 101

Oliver Hooper sought habeas corpus relief from his state convictions and sentences for aggravated felonious sexual assault and related charges, arguing that limitations imposed on his right to cross examine the state’s expert witness violated his Confrontation Clause right. In a previous motion, the Warden had argued, mistakenly, that the Confrontation Clause claim had been procedurally defaulted, and the court directed the Warden to address the claim under the appropriate standard. The Warden then moved for summary judgment, applying the de novo standard of review. The court granted the motion, concluding that the Confrontation Clause was not violated because the state had a justifiable interest in protecting the assault victim from disclosure of prior sexual activity and that the excluded evidence was not sufficiently probative to overcome the state’s interest. 14 pages. Judge Joseph A. DiClerico, Jr.


HABEAS CORPUS, EX POST FACTO
6/2/10
Chad Evans v. Warden, New Hampshire State Prison
Case No. 08-cv-105-JD, Opinion No. 2010 DNH 094

Chad Evans sought habeas corpus relief from his state sentence on the ground that his minimum sentence was increased in violation of the prohibition against ex post facto laws. After Evans was convicted but before he was sentenced, New Hampshire amended RSA 651:58, I, to allow the state to seek sentencing review before the Superior Court Sentence Review Division. In response to the state’s petition in Evans’s case, the Division changed Evans’s sentence, which increased his minimum sentence. The federal court denied Evans’s petition under 28 U.S.C. § 2254, concluding that the state court’s decision was neither contrary to nor an unreasonable application of federal ex post fact case law because the change was a procedural rule that did not affect Evans’s substantive rights. 13 pages. Judge Joseph A. DiClerico, Jr.


JURISDICTION (PERSONAL)
6/29/10
Battle Foam, LLC v. Bryan Wade, d/b/a Outrider Hobbies
Case No. 10-cv-116-SM, Opinion No. 2010 DNH 108

Plaintiff, an Arizona company, sued defendant (also a resident of Arizona), alleging trademark infringement, unfair competition, and misappropriation of trade secrets. Defendant moved to dismiss, asserting the court lacked personal jurisdiction over him. The court agreed, concluding that the mere fact that defendant operates a commercial Web site that is accessible by New Hampshire residents is, without more, insufficient to show that he "purposefully availed" himself of the privilege of doing business in New Hampshire. 17 pages. Chief Judge Steven J. McAuliffe


MEDICAID
6/2/10
Mark Tyrrell, Mark Carter, and Keshia Wallis v. Nicholas Toumpas, Commissioner of the New Hampshire Department of Health and Human Services
Case No. 09-cv-243-JD, Opinion No. 2010 DNH 093

Plaintiffs, recipients of federal Supplemental Security Income, sued Nicholas Toumpas, the Commissioner of the New Hampshire Department of Health and Human Services, alleging that he failed to award them Aid to the Permanently and Totally Disabled to which they were entitled. The plaintiffs contended that federal law required Toumpas to award APTD to any recipient of SSI, and that New Hampshire RSA § 167:6, VI, which requires aid applicants to show that their disability will last 48 months, was preempted by the federal duration requirement, which is only 12 months. The court awarded judgment on the pleadings to Toumpas, finding that the New Hampshire statute complied with the relevant federal regulation. The regulation allows states to use more restrictive eligibility standards than the federal requirements, so long as the state standard is no more restrictive than the state standard in effect on January 1, 1972. 11 pages. Judge Joseph A. DiClerico, Jr.


SOCIAL SECURITY
6/16/10
Ainsworth v. SSA
Case No. 09-cv-286-SM, Opinion No. 2010 DNH 105

The court granted claimant’s motion to remand this matter to the administrative law judge, concluding that because the ALJ had taken critical expert medical testimony by telephone and because much of that testimony could not be accurately transcribed, the record on appeal was insufficient to conclude that the ALJ’s adverse disability determination was supported by substantial evidence. 13 pages. Chief Judge Steven J. McAuliffe.


SOCIAL SECURITY ACT; SCOPE OF REMAND
6/3/10
Warner v. Social Security Administration,
Case No. 09-cv-324-JL, Opinion No. 2010 DNH 095

After a partially favorable decision from the Social Security Administration on her benefits claim, plaintiff Devona Warner brought suit under the Social Security Act, 42 U.S.C. § 405(g), challenging the onset date of her disability. Warner claimed she became disabled in April 2006, but the administrative law judge found a June 2007 onset. The Commissioner conceded that the determination was inadequate, and moved to reverse and remand. The parties only disagreed on the scope of review. Warner argued for a scope limited to her claim for benefits before June 2007. The Commissioner argued for unrestricted scope. The court entered judgement to reverse and remand the case to the SSA and limited the scope to whether Warner is entitled to disability benefits for the period before June 2007, holding that the determination of a remedy under § 405(g) is dictated by the error made by the administrative law judge, here the onset of disability. 4 pages. Judge Joseph N. Laplante.

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