New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

Set Your Business Apart - Advertise with NH Bar News!

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - April 15, 2011

US District Court Decision Listing - March 2011

* Published

de Feyter v. Federal Aviation Administration
Civil No. 10-cv-358-JL, Opinion No. 2011 DNH 049

The Federal Aviation Administration moved to dismiss a pro se action brought by a private citizen seeking to force the FAA to impose civil penalties on a North Conway heliport owner and pilots for violating FAA regulations. The court granted the motion, concluding that there is no private right of action to enforce the FAA Act and related regulations, and that the FAA’s decision not to impose civil penalties is committed to agency discretion and therefore not reviewable under the FAA Act, Administrative Procedure Act, or by petition for a writ of mandamus. 19 pages. Judge Joseph N. Laplante.

Merrimack Congregation of Jehovah’s Witnesses v. Town of Merrimack, et al.
Case No. 10-cv-581-JD, Opinion No. 2011 DNH 054

After the town zoning board of adjustment denied its application for a special exception to build a church in a residential district, the Congregation brought suit and moved for a preliminary injunction to require the town to allow it to build in its desired location. The Congregation argued that the town’s ordinance constituted a prior restraint on its free speech and free exercise of religion rights under the First Amendment. The magistrate judge recommended that the motion for a preliminary injunction be denied. On review, the court agreed that the Congregation failed to show a likelihood of success on the merits of its First Amendment claim because it failed to show that the town’s decision, restricting where a church can be constructed, imposed a burden on the Congregation’s free speech or free exercise rights under the First Amendment. The court approved and adopted the report and recommendation as discussed and supplemented by the court’s order. 13 pages. Judge Joseph A. DiClerico, Jr.

Roberts v. Wentworth-Douglass Hospital, et al.
Case No. 09-cv-34-SM, Opinion No. 2011 DNH 051

Plaintiff, a former pre-trial detainee at the Strafford County Department of Corrections, brought suit alleging that defendants denied him adequate medical care and subjected him to unnecessary surgery. After plaintiff repeatedly failed to disclose an expert medical witness, defendants moved for summary judgment. The court granted those motions, concluding that absent expert medical testimony, plaintiff could not demonstrate that he was the victim of medical malpractice, nor could he show that defendants’ treatment of him was so far below acceptable medical standards that it amounted to an unnecessary and wanton infliction of pain in violation of the Eighth Amendment. 12 pages. Chief Judge Steven J. McAuliffe.

Pure Barnyard, Inc. v. Organic Laboratories, Inc.
Civil No. 08-cv-501-JL, Opinion No. 2011 DNH 035

In a case arising out of a failed merger of two fertilizer companies, the plaintiff claimed that the defendant, acting through its agents, made misrepresentations as to the quantity of fertilizer material available under the defendant’s contract with a supplier. The plaintiff further alleged that, in reliance on those misrepresentations, it made arrangements to sell that material to its customers, instead of its own product, causing commercial damage when it turned out that the material was in fact unavailable. The court denied the defendant’s motion for summary judgment, ruling that (1) there was sufficient evidence of an agency relationship between the defendant and the private equity group that had made the alleged misrepresentations, and (2) there were factual disputes as to whether the plaintiff had learned the misrepresentations were false before acting in alleged reliance on them, and (3) the court would not consider the defendant’s argument that the alleged reliance was not been justified in light of the fact that the merger agreement had yet to be signed, which had been raised for the first time at oral argument on the motion. 23 pages. Judge Joseph N. Laplante.

Peterson v. United States, et al.
Civil No. 10-cv-170-JL, Opinion No. 2011 DNH 052*

The United States moved to dismiss this case challenging the constitutionality of the Patient Protection and Affordable Care Act, a federal health care bill enacted last year, arguing that the plaintiff lacked standing. The court granted the motion. The plaintiff lacked standing to challenge the Act’s health insurance mandate because his Medicare coverage automatically satisfied that mandate. He also lacked standing to challenge the manner in which the Act was passed, because his allegations of injury from the Act were too speculative and would not be redressed by a decision in his favor. 18 pages. Judge Joseph N. Laplante.

Antaeus Enterprises, Inc., et al. v. Davidson, Civil
No. 10-cv-126-JL, Opinion No. 2011 DNH 050*

The plaintiffs, having obtained a default judgment against a limited liability company in a previous case, moved for summary judgment on their claim seeking to hold the company’s owner personally liable for the judgment by "piercing the corporate veil." The court denied the motion, concluding that material facts remained in dispute regarding whether the owner had used the company to promote fraud or injustice. 20 pages. Judge Joseph N. Laplante.

P.K. v. Middleton School District
Civil No. 08-cv-150-JL, Opinion No. 2011 DNH 036

The plaintiff appealed a hearing officer’s decision that a school district had not deprived the plaintiff’s son of a free and appropriate education based on alleged deviations from his individualized educational program ("IEP"). The plaintiff alleged that, although the IEP called for the school to maintain a latex-free environment and for the student to wear a seatbelt on the school bus, items containing latex had been brought into the school on several occasions and the student was not required to wear his seatbelt on one occasion during one academic year The court ruled that only the material violation of an IEP could deprive a student of a free and appropriate education, and that the hearing officer had supportably found that no such violation occurred, largely because the items containing latex had been brought into the school only 4 times the whole year and had always been removed from the student’s vicinity as soon as their presence was recognized. The court also ruled that, in any event, the parent was not entitled to reimbursement for her expenses in unilaterally placing the student in a private school, because the placement was not appropriate in light of its failure to offer any of the special education and related services the student needed. 17 pages. Judge Joseph N. Laplante.

True v. DJQ Enterprises, Inc., et al.
Case No. 09-cv-439-SM, Opinion No. 2011 DNH 033

Plaintiff sued his former employer, advancing a common law claim for wrongful discharge and a federal claim for relief under the Fair Labor Standards Act. Defendant moved for summary judgment on the common law claim, asserting that, as a matter of law, it cannot coexist with his FLSA claim. In support of that position, defendant invoked Smith v. F.W. Morse & Co., 76 F.3d 413, 428-29 (1st Cir. 1996). The court denied defendant’s motion, holding that Smith’s broad interpretation of New Hampshire’s common law is now suspect, given subsequent New Hampshire Supreme Court decisions, and defendant had not adequately developed the federal preemption analysis now required in situations of this sort. 4 pages. Chief Judge Steven J. McAuliffe.

Hall v. GMAC Mortgage, LLC, et al.
Case No. 10-cv-158-SM, Opinion No. 2011 DNH 034

Plaintiff sought to voluntarily dismiss her complaint without prejudice. Defendants objected, asserting that the court should, instead, grant their pending motion to dismiss (and, thus, dismiss plaintiff’s claims with prejudice). The court dismissed plaintiff’s complaint, without prejudice, and denied defendant’s motion as moot. It reasoned that because defendants had filed neither an answer nor a motion for summary judgment, straightforward application of Fed. R. Civ. P. 41(a)’s terms allowed plaintiff to voluntarily withdraw her complaint without prejudice. 4 pages. Chief Judge Steven J. McAuliffe.

Jenner, et al. v. CVS Pharmacy, Inc., et al.
Civil No. 10-cv-497-JL (RI), Opinion No. 2011 DNH 043*

The plaintiffs moved to remand their prescription drug products liability case to Rhode Island state court, arguing that the federal district court lacked subject-matter jurisdiction. The defendants argued that their removal of the case was proper because the plaintiffs fraudulently joined two pharmacies as defendants for the purpose of destroying diversity jurisdiction. The court granted the motion to remand, concluding that the defendants had not shown that the plaintiffs had no possibility of prevailing on their claims against the pharmacies, as would be required to establish fraudulent joinder. 12 pages. Judge Joseph N. Laplante.

Robert Hull v. Borough of Point Pleasant Beach, et. al.
Case No. 10-cv-356-PB, Opinion No. 2011 DNH 042

Robert Hull sued the Borough of Pleasant Beach, New Jersey, the Mayor, and various other named and unnamed Borough employees. Hull claimed that Borough officials caused bogus code enforcement complaints to be brought against him in a New Jersey municipal court, which ultimately resulted in Hull losing his New Hampshire license. The defendants moved to dismiss, claiming that this court lacked personal jurisdiction. The court granted the defendants motion to dismiss, concluding that Hull had not shown that his claim was related to the defendants contacts with the forum state. 6 pages. Judge Paul Barbadoro.

Bentley v. City of Lebanon, et al.
Case No. 10-cv-470-PB, Opinion No. 2011 DNH 045

Cheryl Bentley filed various claims against the City of Lebanon and several employees. The defendants moved to dismiss the complaint, claiming that the statute of limitations had run on Bentley’s claims. While Bentley’s filing occurred a day after the statute of limitations had run, because the accrual date for the statute of limitations fell on a legal holiday, under N.H. Rev. Stat. Ann. § 21.35 II, Bentley’s filing was still timely. 4 Pages. Judge Paul Barbadoro.

Sierra v. Hodges, et al.
Case No. 10-cv-325-PB, Opinion No. 2011 DNH 045

Plaintiff’s claims of negligence, negligence per se, and wrongful death arising from a head-on collision between a car and a tractor trailer were dismissed for failure to state a claim. Plaintiff based her allegations of negligence on the fact that the truck driver was operating with a suspended license, but New Hampshire law recognizes that a defendant’s status as an unlicensed driver alone is not generally the proximate cause of a motor vehicle accident. Thus plaintiff’s claims against the operator were dismissed. Claims against the truck driver’s employer were also dismissed for failure to show that allowing the drive to operate with a suspended license was a proximate cause of the accident. 6 pages. Judge Paul Barbadoro.

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer