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Bar News - January 14, 2011

US District Court Decision Listing - December 2010


* Published

United States of America v. General Electric Co.
Case No. 06-cv-354-PB, Opinion No. 2010 NHD 203

Following a bench trial where it was determined that GE was a responsible party under CERCLA for environmental cleanup at a Superfund site in Milford, New Hampshire, the United States sought to recover cleanup costs incurred in connection with removal actions at that site in 1993 and 1995. GE argued that the government was barred from recovering those costs by the applicable statute of limitations, 42 U.S.C. § 9613 (g)(2), because the initial complaint against GE was resolved by a consent decree which excluded those removal actions and did not include a binding declaration on liability. According to GE, a declaration on liability is a definitional requirement of an "initial action," which § 9613 (g)(2) requires in order for "subsequent actions" seeking recovery for later removals to gain an extended limitations period. The court ruled in favor of the United States, finding that a declaration of liability is not a necessary characteristic of an "initial action." 14 Pages. Judge Paul Barbadoro.

Picard v. Descar, et al.
Case No. 09-cv-271-SM, Opinion No. 2010 DNH 208

On the plaintiff’s claim that the defendants denied him constitutionally adequate medical care while he was incarcerated in the Hillsborough County House of Corrections, the court granted summary judgment to the defendants because the plaintiff failed to produce any evidence to counter that produced by the defendants, which demonstrated that the jail was not deliberately indifferent to any serious medical need. 8 pages. Chief Judge Steven J. McAuliffe.

Edward Charles Furlong, III v. Doug Garland, et al.,
Case No. 10-cv-453-JD, Opinion No. 2010 DNH 204.

After losing in state court on his claim challenging an agreement he had made with the defendants, the plaintiff brought a pro se civil rights action in federal court, contending that he had received ineffective assistance of counsel in the state court action and asserting a right of way across property owned and managed by the defendants. The magistrate judge recommended denial of Furlong’s emergency motion for a preliminary injunction seeking access across the asserted right of way. Based on the Rooker-Feldman doctrine and issue preclusion, the court approved and adopted the decision of the magistrate judge. 6 pages. Judge Joseph A. DiClerico, Jr.

Nucor Steel Marion, Inc. v. Mauer
Case No. 10-cv-327-SM, Opinion No. 2010 DNH 207

In this case, brought under the Computer Fraud and Abuse Act ("CFAA"), the plaintiff sued a former employee, claiming that he had unlawfully misappropriated company information from two company-issued laptop computers. Because the plaintiff failed to adequately allege that its former employee gained unauthorized access to its computers or exceeded his authorized access to those computers, the court dismissed plaintiff’s CFAA claims. 13 pages. Chief Judge Steven J. McAuliffe.

Robert Rockwood and Roxana Marchosky v. SKF USA, Inc.,
Civil No. 08-cv-168-JL, Opinion No. 2010 DNH 213

The defendant moved for summary judgment on the plaintiffs’ claim for promissory estoppel, which alleged that the defendant, "through its cumulative words, conduct, and acts of assurance, manifested an intention" to purchase the plaintiffs’ company, but ultimately did not do so, leading to its collapse. The court ruled that, under New Hampshire law, the plaintiffs could not resort to promissory estoppel in the face of their enforceable agreement with the defendant expressly giving it the option to buy the company, rather than obligating it to do so (the plaintiffs had voluntarily withdrawn any claim arising out of the agreement itself) because, among other problems, the plaintiffs could not have reasonably relied on an implied promise at odds with the terms of the express agreement. The court also rejected the plaintiffs’ argument that a joint venture had arisen between their company and the defendant as both incorrect and irrelevant because (1) a joint venture can arise only by agreement, not by operation of law, and the parties had expressly agreed they were not creating a joint venture and (2) the existence of a joint venture between the defendant and the plaintiffs’ company would not relieve them of the burden to prove they reasonably relied on the defendant’s alleged promise to recover on their promissory estoppel claim. 53 pages. Judge Joseph N. Laplante.

United States v. Robert Mayer
Case No. 04-cr-100-1-SM, Opinion No. 2010 DNH 205

In this case, a criminal defendant moved for a hearing to contest the government’s right to use the Treasury Offset Program ("TOP") to collect restitution he was ordered to pay as a part of the judgment in his criminal case. Because the government complied with all the statutory requirements for using the TOP to collect a debt owed the government, and because the defendant identified no legal or factual basis sufficient to block the government from using the TOP, the court denied his motion for a hearing. 4 pages. Chief Judge Steven J. McAuliffe.

PC Connection, Inc. v. Dayton Crabtree
Case No. 10-cv-348-LM, Opinion No. 2010 DNH 206 P

Online computer product retailer PC Connection, Inc., located in New Hampshire but doing business worldwide, sued sole proprietor of a computer information technology company called Computer Connections and doing business in Hedgesville, West Virginia. Plaintiff alleged that defendant’s registration of the domain name: and use of the email extension infringed on its trademark "PC Connection," and further alleged cybersquatting and other violations of state and federal law. Employing four-part test set forth in Negron-Torres v. Verizon Commc’ns, Inc., 478 F.3d 19 (1st Cir. 2007), Court declined to exercise personal jurisdiction over defendant, finding that email correspondence initiated by plaintiff’s "cease and desist" letter and responding to plaintiff’s invitation to negotiate a resolution to the alleged infringement did not constitute "minimum contacts" in New Hampshire for purposes of establishing jurisdiction. The Court held that: (1) defendant’s contacts with the forum state consisted of use of the domain name and email extension at issue and the responsive emails were related to trademark infringement action but did not constitute cybersquatting or extortion under the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d); (2) defendant’s conduct, evaluated under the test set forth in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), did not constitute "purposeful availment" of the privilege of doing business in New Hampshire by virtue of New Hampshire residents’ ability to access defendant’s website in New Hampshire and that"purposeful availment" was established only by minimal post-TRO use of domain name and email extension; (3) that exercise of jurisdiction over defendant would be unreasonable under the circumstances where there was no evidence of any benefit to defendant in use of allegedly infringing domain name and email extension, intent to do business in New Hampshire, or intent to trade on the good will in plaintiff’s mark; and (4) the exercise of personal jurisdiction over defendant would offend public policy by allowing any corporation to hail any alleged infringer into its home court by mailing a "cease and desist" letter and successfully inviting a response thereto. Case transferred to U.S. District Court for the Northern District of West Virginia. 40 pages. Judge Landya B. McCafferty.

Dupont v. Social Security Administration,
Case No. 10-cv-7-PB, Opinion No. 2010 DNH 214

After the denial of her application for Disability Insurance Benefits, Plaintiff Kristene Anne Dupont brought suit under the Social Security Act, 42 U.S.C. § 405(g), challenging the administrative law judge’s ("ALJ") decision not to extend the time period for reopening a prior application for disability insurance benefits ("DIB"). Dupont alleged that mental incapacity prevented her from understanding the process for review, and requested an extension to reopen her claim based on Social Security Ruling ("SSR") 91-5p. The Commissioner moved to dismiss the action for lack of subject matter jurisdiction, or in the alternative, to affirm the ALJ’s decision. The court determined that while it had subject matter jurisdiction to review the ALJ’s decision, substantial evidence supported the ALJ’s determination that Dupont had not qualified for an extension under SSR 91-5p. 13 Pages. Judge Paul Barbadoro.

David Tencza

A graduate of Suffolk University Law School, David Tencza joined the NH Bar in 2007 and has been a prosecutor in the Hillsborough County Attorney’s Office in Nashua since July of that year.

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