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Bar News - December 17, 2010


US District Court Decision Listing - November 2010

* Published

AGENCY & INSURANCE
11/23/10
Northeast Credit Union v. Chicago Title Insurance Co.
Case No. 09-cv-71-PB, Opinion No. 2010 DNH 200

Northeast Credit Union sought to hold defendant Chicago Title Insurance Company liable for losses Northeast suffered when Warranty Title, a now-defunct closing services company, misappropriated funds it agreed to hold in escrow for Northeast in connection with a refinancing. Northeast contended that Warranty was Chicago Title’s agent with respect to closing and escrow services and therefore should be vicariously liable for Warranty’s misdeeds. Alternatively, Northeast argued that the title insurance policy Chicago issued to it in connection with the refinancing covered the loss. The court granted Chicago’s motion for summary judgment, holding that Warranty was not Chicago’s agent for closing or escrow services, and that the title insurance policy did not cover Northeast’s loss. 8 Pages. Judge Paul Barbadoro.


CHOICE-OF-LAW
11/29/10
Meyer v. Callahan, et. al
Case No. 09-cv-106-PB, Opinion No. 2010 DNH 202

Plaintiff, a resident of Michigan, brought a legal malpractice claim against a New Hampshire attorney based on a failed business transaction. The parties disagreed as to whether the law of Michigan or New Hampshire governed the plaintiff’s claim. The plaintiff argued that Michigan law should apply because she was a Michigan resident when the representation was initiated. The defendant contended that New Hampshire law should apply because the representation concerned the creation of a New Hampshire business. The court ruled that a choice-of-law provision in the attorney’s engagement letter, which indicated that New Hampshire law would govern the engagement, was enforceable and required the application of New Hampshire law. 7 pages. Judge Paul Barbadoro.


COMMERCIAL LAW; STATUTE OF FRAUDS; PLEADINGS REQUIREMENTS
11/10/10
Demers v. Pilkington North America
Civil No. 10-cv-296-JL, Opinion No. 2010 DNH 193

The defendant tenant moved to dismiss the plaintiff landlord’s complaint for breach of an extension to their lease, arguing that it failed to state a claim for relief because the extension agreement was not signed by a party authorized to bind the defendant. While the agreement had been signed by a person identifying himself therein as the defendant’s "agent," the defendant argued that this meant simply "real estate agent" and that, under Ohio law, a real estate agent cannot bind his principal to a contract for an interest in land unless so authorized in writing. Denying the motion, the court ruled that (1) no such written authorization was required by Massachusetts law, which governed the issue as the law of the place where the agent dealt with the plaintiff, as well as where the property was located, (2) even if Ohio law applied instead, the defendant had itself signed an earlier lease extension with the plaintiff, also identifying the agent as such, and arguably amounting to the requisite written authorization, and (3) the defendant had availed itself of the lower rental payments the extension put in place for the balance of the original term, arguably amounting to partial performance sufficient to negate the defendant’s statute of frauds defense. The court also denied the defendant’s motion to transfer the case to Ohio or Massachusetts, reasoning that neither the location of potential witnesses in either of those states, nor the possibility that their law might apply, overcame the plaintiff’s choice of a New Hampshire forum. 21 pages. Judge Joseph N. Laplante.


DEBT COLLECTION; FEDERAL STATUTES
11/12/10
Goldsmith, et al. v. HSW Financial
Civil No. 10-cv-324-JL, Opinion No. 2010 DNH 196*

The defendant moved to dismiss this Fair Debt Collection Practices Act ("FDCPA") case for lack of subject-matter jurisdiction, arguing that the FDCPA did not apply to the plaintiffs’ commercial debt and that the plaintiffs had not plausibly alleged a sufficient amount in controversy to give the court diversity jurisdiction over their other state-law claims. The court granted the motion in part and denied it in part. While agreeing that the FDCPA did not apply (and therefore dismissing that claim), the court concluded that the plaintiffs had alleged sufficient damages to establish diversity jurisdiction. 12 pages. Judge Joseph N. Laplante.


HABEAS CORPUS
11/22/10
Huard v. United States
Case No. 10-cv-258-SM, Opinion No. 2010 DNH 197

Petitioner was convicted by a jury of bank robbery and the use of a firearm in furtherance of a crime of violence. Subsequently, he sought habeas corpus relief, asserting that his trial counsel provided constitutionally deficient representation by failing to move to suppress a seized firearm and by offering no objection to its introduction into evidence at trial. The court denied the habeas petition, concluding that: (1) the firearm was not seized in violation of the Fourth Amendment; and (2) even if it had been, the evidence of petitioner’s guilt was so overwhelming that he suffered no prejudice from the firearm’s introduction at trial. 12 pages. Chief Judge Steven J. McAuliffe.


11/23/10
Butler v. United States
Case No. 10-cv-216-PB, Opinion No. 2010 DNH 198

Warren Butler brought a petition seeking to vacate his guilty plea and arguing that his sentence was incorrectly calculated. Butler pleaded guilty in 2007 to conspiracy to commit fraud and aggravated identity theft for his role in a scheme to defraud several of Bank of America’s customers. Butler acquired personal account information for Bank of America customers and used the information to create counterfeit identities with which he could withdraw money from the existing accounts. Butler argued that his guilty plea must be set aside in light of the recent Supreme Court case of Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), which held that the federal aggravated identity theft statute requires the government to prove that the defendant knew that the means of identification used did in fact belong to another person. The court found that because Butler was unable to demonstrate how the result of the proceeding would have been different if he had been informed of the Flores-Figueroa requirement, he was not prejudiced by any of the claimed errors. Butler’s arguments regarding his sentence calculation also failed because they were covered by the appellate and collateral review waiver in his plea agreement. 12 pages. Judge Paul Barbadoro.


MISCELLANEOUS CIVIL MOTIONS
11/23/10
Meyer v. Callahan, et al.
Case No. 09-cv-106-PB, Opinion No. 2010 DNH 199

Plaintiff Theresa Meyer brought various fraud-based claims against the organizers of a transaction involving the sale of Meyer’s company, RescueTees.com. As part of her compensation for the sale, Meyer received an equity interest in the resultant company, but almost immediately after the closing the new company became financially insolvent and Meyer never received her full compensation. The court found that Meyer failed to allege facts in her complaint sufficient to meet the pleading standards of the scienter element of fraud, requiring the dismissal of all of Meyer’s fraud-based claims. 18 pages. Judge Paul Barbadoro.


SOCIAL SECURITY
11/3/10
Costa v. Social Security Administration
Civil No. 09-cv-441-JL, Opinion No. 2010 DNH 190

The claimant appealed the denial of disability benefits claiming that the administrative law judge incorrectly concluded that although she had several severe impairments, including fibromyalgia, she retained the residual functional capacity to return to her past employment at a light exertional level. The Commissioner moved for an order affirming his decision. The court granted the claimant’s motion and denied the Commissioner’s motion. The court concluded that the administrative law judge improperly ignored a treating source opinion that was in direct conflict with his residual functional capacity determination. Because the administrative law judge’s decision failed to explain how this material inconsistency was considered and resolved, the court concluded that his decision was derived by ignoring the evidence and must be reversed. The court also addressed issues raised by the claimant regarding the administrative law judge’s credibility determinations, as these issues may arise again on remand. 33 pages. Judge Joseph N. Laplante.

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