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Bar News - November 19, 2010

US District Court Decision Listing - October 2010

* Published

Collins v. University of New Hampshire, et al.
Case No. 09-cv-78-LM, Opinion No. 2010 DNH 177 P

Defendant University moved for summary judgment on plaintiff professor’s due process and defamation claims. The court granted the motion and entered judgment on both claims. After plaintiff’s arrest for disorderly conduct and stalking, defendant suspended plaintiff with pay, stripped him of his department chair position, and temporarily banned him from campus. On plaintiff’s civil rights claim, the court found that plaintiff received sufficient post-deprivation process in the form of notice and opportunity to be heard, and further held that plaintiff was not entitled to any process prior to the suspension and the campus ban. On plaintiff’s defamation claim, the court held that defendant’s communication to faculty and staff that they should avoid contact with plaintiff and call the police if they saw plaintiff on campus, implied a truthful statement that plaintiff was dangerous. The court also held that the communication was otherwise privileged. 36 pp. Magistrate Judge Landya B. McCafferty.

Sleeper Village LLC v. NGM Insurance Company
Case No. 09-cv-44-PB, Opinion No. 2010 DNH 173

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 Sleeper Village’s violation of Section 5 of the bond, which in most cases obligates the owner to provide notice to the surety that the surety is in default, relieved it of its obligation to indemnify Sleeper under the bond. The court granted NGM’s motion for summary judgment determining that NGM was prejudiced by Sleeper Village’s failure to provide the notice of surety default required by paragraph 5. 11 pages. Judge Paul J. Barbadoro

Garcia v. Alicare Medical Management
Civil No. 10-cv-26-JL, Opinion No. 2010 DNH 184

The defendant moved to dismiss this Americans with Disabilities Act ("ADA") case because the plaintiff, who was appearing pro se, failed to make an initial disclosure of his damages computation as required by Fed. R. Civ. P. 26(a)(1)(A)(iii). The court denied the motion. While agreeing that the plaintiff made a discovery error, the court found that the error was harmless and had been cured before the motion was filed, making dismissal an inappropriate sanction. 5 pages. Judge Joseph N. Laplante.

Hughes v. Standard Hardware Distributors, Inc., et al.
Case No. 10-cv-207-SM, Opinion No. 2010 DNH 174

Pro se plaintiff Frederick Hughes filed this action alleging unlawful discrimination and wrongful termination. In lieu of filing an answer, defendants filed a motion to dismiss. Having been made aware of the shortcomings of his claims, plaintiff sought voluntary dismissal of his complaint, without prejudice, pursuant to Fed. R. Civ. P. 41(a). Defendants objected, fearing plaintiff would simply re-file his claims in state court, as part of what they believed to be a pattern of harassment from plaintiff. The court overruled that objection and dismissed the complaint without prejudice, noting that plaintiff was entitled to voluntarily dismiss his own complaint without prejudice under the rules of civil procedure before an answer or motion for summary judgment is filed, and if defendants wished to preclude plaintiff from exercising those rights under Rule 41, they could have simply filed an answer and then moved for judgment on the pleadings. See Fed. R. Civ. P. 12(c). 7 pages. Chief Judge Steven J. McAuliffe.

Bayard v. Warden FCI Schuylkill
Case No. 10-cv-442-SM, Opinion No. 2010 DNH 186

Serge Bayard was convicted of the unauthorized use of an access device and aggravated identity theft. He was sentenced to serve 36 months in federal prison. He sought habeas corpus relief, invoking the provisions of 28 U.S.C. § 2241. The court denied that relief, concluding that, despite Bayard’s efforts to characterize it as a challenge to his federal sentence, the petition was actually an attempted collateral attack upon a prior state court conviction - a conviction that served to enhance his federal sentence. And, because Bayard was no longer "in custody" with regard to that state court sentence, the court lacked jurisdiction to entertain his federal habeas corpus petition. 10 pages. Chief Judge Steven J. McAuliffe.

Fin Brand Positioning, LLC v. Take 2 Dough Productions, Inc.
Civil No. 09-cv-405-JL, Opinion No. 2010 DNH 189*

The defendants moved to dismiss the plaintiffs’ claim for a declaration of sole inventorship and ownership of a special box for pizza dough, arguing that the claim could not be litigated until the United States Patent and Trademark Office ("USPTO") decided whether to approve the plaintiffs’ pending application to patent the box. The court agreed and granted the motion to dismiss that claim. But the court denied the defendants’ motion to dismiss the plaintiffs’ other claim for misappropriation of intellectual property and services, unjust enrichment, and unfair business practices, concluding that it could be litigated on a non-patent theory. 15 pages. Judge Joseph N. Laplante.

Industrial Tower & Wireless v. Town of Epping
Civil No. 08-cv-122, Opinion No. 2010 DNH 180

After reaching a court-approved settlement of a claim by a wireless services provider that the town’s refusal to issue a special permit for a cell phone tower violated the Telecommunications Act of 1996, which called for the permit to issue, those parties sought to enforce the order approving the settlement by enjoining abutters to the proposed tower site from challenging the permit in state court. The court ruled that the requested relief was barred by the Anti-Injunction Act. 14 pages. Judge Joseph N. Laplante.

Industrial Communications & Electronics, Inc. v. Town of Alton
Civil No. 07-cv-82-JNL, Opinion No. 2010 DNH 175

The abutters to the site of a proposed cell phone tower moved to stay the court’s order approving a settlement agreement, reached between the wireless services provider and the town to resolve the provider’s claim under the Telecommunications Act of 1996, which provided that a variance would issue for the tower. The court had approved the settlement over objections by the abutters, who had intervened in the case but had never presented any of their own claims for relief; the abutters then brought an action in state court challenging the variance under state law. In denying the motion to stay, the court ruled that neither the fact that the provider and the town were invoking its order approving the settlement as a defense to the state-court action, nor the fact that the abutters had appealed that order to the court of appeals, justified the requested relief. 18 pages. Judge Joseph N. Laplante.

United States v. Acosta
Case No. 99-cr-134-JD, Opinion No. 2010 DNH 178

Pablo Acosta brought a petition for a writ of error coram nobis, contending that his counsel during the criminal proceeding was constitutionally ineffective for failing to advise him of the deportation consequences of his guilty plea. He argued that a writ of error coram nobis under the All Writs Act was appropriate because relief under 28 U.S.C. § 2255 was barred by the statute of limitations and the prohibition against successive petitions. The government contended that because Acosta was still in supervised release, he was "in custody" for purposes of § 2255, making the All Writs Act unavailable. The court denied Acosta’s petition, concluding that he was in custody for purposes of § 2255 and his claim under § 2255 was both untimely and barred by the prohibition against successive petitions. 5 pages. Judge Joseph A. DiClerico, Jr.

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