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Bar News - September 17, 2010


US District Court Decision Listing - August 2010

* Published

CIVIL PROCEDURE; PRO SE PLAINTIFF
8/10/10
George Blaisdell v. City of Rochester
Case No. 07-cv-390-JNL, Opinion No. 2010 DNH 141

The defendants moved to dismiss the plaintiff’s action based on his failure to comply with a series of court orders, the most recent of which had required him--under explicit pain of dismissal--to attend his own deposition and to pay expenses the defendants incurred when the plaintiff failed to attend his deposition as previously scheduled (which was itself done by order of the court when the plaintiff failed to comply with a prior deposition notice or cooperate in rescheduling). Following a show cause hearing, the court granted the motion to dismiss, finding that the plaintiff had exhibited a history of failing to comply with court orders, largely without justification, and that he was unable to assure the court he would comply with its orders in the future. 15 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS § 1983: FIRST AMENDMENT
8/9/2010
William Foote v. Town of Bedford, et al.
Case No. 09-cv-171-PB, Opinion No. 2010 DNH 137

William Foote sued the Town of Bedford and four individual members of the Town Council, alleging that the defendants violated his First Amendment rights by deciding not to reappoint him to a volunteer position on the Bedford Recreation Commission after he criticized the School Board and Town Council. He also asserted three state-law claims. The defendants moved for summary judgment on all counts. The court conducted a Pickering balancing analysis and dismissed Foote’s First Amendment claim for a number of reasons, emphasizing that because members of the Recreation Commission have a role in formulating town policy, the Town Council has a strong interest in appointing members whose views are aligned with its own. The court remanded the state-law claims. 12 pages. Judge Paul Barbadoro.


CIVIL RIGHTS
8/24/10
Kuperman v. Wrenn, et al.
Case No. 08-cv-513-SM, Opinion No. 2010 DNH 153

The plaintiff claimed that his rights under the First and Fourteenth Amendments, as well as those under the Religious Land Use and Institutionalized Persons Act, were violated by a prison regulation that allowed a short beard but prohibited a full beard, as required by his religion. The defendants’ motion for summary judgment was granted on grounds that the regulation was reasonably related to a legitimate penological purpose and plaintiff failed to offer any evidence tending to show that other reasonable and effective alternatives (other than a limitation on length) were available to the state. 14 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS
8/27/10
Vendouri v. Gaylord, et al.
Case No. 10-cv-277-SM, Opinion No. 2010 DNH 155

The plaintiff claimed that the defendants, various school officials, violated her rights, under the state and federal constitutions, to direct the upbringing and education of her son when they failed to notify her that her son was dismissed from school (due to illness). The boy’s father, and custodial parent, was notified. The complaint was dismissed for failure to state a claim on which relief could be granted. 15 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS; FOURTH AMENDMENT
8/25/10
William Soukup v. Robert Garvin and the Town of Lisbon
Case No. 09-cv-146-JNL, Opinion No. 2010 DNH 154

The plaintiff sued a town and one of its police officers, alleging that his arrest for violating the conditions of his bail was unsupported by probable cause and otherwise unreasonable because he should have simply been issued a summons. The defendants moved for summary judgment, arguing that (1) the arrest was supported by probable cause as a matter of law but, even if it was not, the officer was entitled to qualified immunity, and (2) the custodial nature of the arrest did not render it unreasonable. The court granted the motion, ruling that (1) probable cause supported the arrest because the officer was entitled to believe the complaining witness but, even if he was not, the plaintiff admitted during the investigation that he had yelled at the plaintiff, which was itself a violation of the bail conditions, (2) the officer was entitled to qualified immunity in any event because probable cause was at least arguable, and (3) the custodial arrest was otherwise reasonable, even though the alleged misdemeanor did not occur in the officer’s presence, because he had secured a valid warrant beforehand. 32 pages. Judge Joseph N. Laplante.


CONTRACTS: TITLE INSURANCE
8/13/10
Edward D. Berthiaume v. Ticor Insurance Services, Inc. et al.
Case No. 09-cv-221-PB, Opinion No. 2010 DNH 150

Edward Berthiaume sued Ticor Insurance, Inc. for breach of contract, alleging that Ticor, a title insurance company, failed to conduct an updated title search prior to Berthiaume’s closing on property that was subject to a federal lien of which he was unaware. Ticor counterclaimed that Berthiaume owed payments on a promissory note and mortgage that had been assigned to Ticor. Ticor filed two motions for summary judgment, arguing that Berthiaume’s breach of contract claim was barred by the applicable statute of limitations and that the undisputed facts demonstrated that it was entitled to prevail on its counterclaim. The court granted Ticor’s motion regarding Berthiaume’s breach of contract claim and found that Berthiaume had filed his claim more than three years after he discovered Ticor’s breach. The court denied Ticor’s motion on its own counterclaim without prejudice, as Ticor had failed to respond to Berthiaume’s argument that Ticor was estopped from recovering overdue payments on account of its own misconduct. 10 pages. Judge Paul Barbadoro.


CONTRACTS
8/24/10
JLG Industries v. Boston Equipment & Supply, et al.
Case No. 09-cv-347-SM, Opinion No. 2010 DNH 152

Summary judgment was granted to the creditor plaintiffs in this case over an objection by the defendants, a debtor and a personal guarantor of the debt, who argued that the creditor owed the guarantor a fiduciary duty, or a duty of good faith and fair dealing, to protect the guarantor by, among other things, first exhausting its remedies against the debtors before turning to him to recover on the debt. 11 pages. Chief Judge Steven J. McAuliffe.


EMPLOYMENT: ERISA
8/6/10
Cynthia J. Salisbury v. Assurant Employee Benefits
Case No. 09-cv-224-PB, Opinion No. 2010 DNH 132

Cynthia Salisbury brought an ERISA action against Assurant Employee Benefits seeking (1) repayment of withheld long-term disability benefits and (2) reinstatement of her monthly benefit. Each party filed a motion for judgment on the administrative record. Assurant argued that it had accurately calculated its overpayment to Salisbury based upon a correct allocation of Social Security lump-sum payments that Salisbury had received, and thus was properly withholding benefits to recoup the overpayment. Salisbury contended that Assurant had miscalculated the amount of the overpayment because it had incorrectly allocated the lump-sum Social Security payments, which should have been allocated to the months following each payment rather than to the months preceding each payment. The court granted Assurant’s motion and denied Salisbury’s motion, concluding that the language of the policy was unambiguous and that Assurant had interpreted it correctly. 13 pages. Judge Paul Barbadoro.


EVIDENCE; PRODUCTS LIABILITY; GENERIC DRUGS
8/2/10
Bartlett v. Mut. Pharm. Co.
Case No. 08-cv-358-JL, Opinion No. 2010 DNH 148*

In advance of trial in this products liability case arising from severe injuries allegedly caused by the prescription drug sulindac, the court granted judgment as a matter of law to the plaintiff on the drug manufacturer’s affirmative defenses of comparative negligence and third-party apportionment. The court concluded that the manufacturer had not presented any expert testimony or other evidence to show how, if at all, the plaintiff’s conduct after she first experienced side effects contributed to her injuries. The court also concluded that the manufacturer had not presented any expert testimony to establish that the prescribing doctor violated the standard of care by failing to read the drug’s label or to warn the plaintiff of the drug’s safety risks. 15 pages. Judge Joseph N. Laplante.


EVIDENCE; PRODUCTS LIABILITY; GENERIC DRUGS
8/2/10
Bartlett v. Mut. Pharm. Co.
Case No. 08-cv-358-JL, Opinion No. 2010 DNH 131

In a products liability case arising from severe injuries allegedly caused by the prescription drug sulindac, the court ruled on more than thirty motions in limine filed by the manufacturer. 27 pages. Judge Joseph N. Laplante.


FEDERAL STATUTES (TELECOMMUNICATIONS ACT)
8/11/10
New Cingular Wireless PCS v. Town of Candia, et al.
Case No. 09-cv-387-SM, Opinion No. 2010 DNH 145

In this suit under the Telecommunications Act, the defendant Zoning Board of Adjustment gave insufficient reasons for denying the plaintiff’s application for a special exception and a variance to construct a cell tower, and the case was remanded. 14 pages. Chief Judge Steven J. McAuliffe.


HABEAS CORPUS
8/13/10
Quenta Parker v. United States of America
Case No. 10-cv-64-PB, Opinion No. 2010 DNH 137

Quenta Parker sought relief under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Parker claimed that counsel had failed to raise valid mitigating factors at his sentencing hearing, failed to challenge the constitutional validity of one of the statutes under which he was sentenced, and presented illogical arguments at his hearing. The court denied Parker’s motion and held that Parker could not meet his burden under Strickland’s two-prong standard for claims of ineffective assistance of counsel on habeas review. 15 pages. Judge Paul Barbadoro.


JURISDICTION: SUBJECT MATTER
8/19/10
Sullivan et al. v. Transp. Sec. Admin.
Case No. 10-cv-16-PB, Opinion No. 2010 DNH 151

The Transportation Security Administration moved to dismiss a claim brought under the Federal Tort Claims Act by plaintiffs Bonnie and Christopher Sullivan, who alleged that TSA employees had stolen their watch while screening luggage at an airport. The motion to dismiss was granted on the grounds that the court lacked subject matter jurisdiction over the claim. Applying Florida law, as that was where the tort allegedly took place, the alleged theft by TSA employees would have been outside the scope of employment because there was no indication that the theft could have been activated, even in part, by a desire to serve the interests of TSA. Tortious conduct that is not within the scope of employment falls outside the waiver of sovereign immunity granted by the Federal Tort Claims Act, depriving the court of jurisdiction. 8 pages. Judge Paul Barbadoro.


SOCIAL SECURITY
8/4/10
Dumensil v. SSA
Case No. 10-cv-60-SM, Opinion No. 2010 DNH 135

Claimant appealed the Commissioner’s denial of her applications for both disability and supplemental income benefits under the Social Security Act. The court remanded the matter to the Commissioner, concluding that the administrative law judge failed to adequately explain his decision to discount the opinion of claimant’s long-time treating physician’s assistant who, although not an "acceptable medical source," did qualify under applicable regulations as an "other medical source." 19 pages. Chief Judge Steven J. McAuliffe.


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