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Bar News - August 19, 2011


US District Court Decision Listing - July 2011

* Published

CIVIL RIGHTS
7/8/11
Blackden v. NH State Police, et al.
Case No. 10-cv-450-SM, Opinion No. 2011 DNH 109

Newspaper company and freelance photographer sued state trooper and director of state police for alleged violations of First and Fourth Amendment rights arising from seizure of photographer’s camera and digital photo card. The court granted the director’s motion to dismiss. It found that injunctive relief against the director for the return of the photo card was not available because the card was under the legal control of the state court as evidence in the photographer’s criminal trial. The court denied the trooper’s motion to dismiss and stayed the claims against him pending resolution of the state criminal proceedings. 11 pages. Chief Judge Steven J. McAuliffe.


CONTRACT; LIABILITY
7/14/11
Guardian Angel v. MetaBank
Case No. 08 cv 261 PB, Opinion No. 2011 DNH 111

Plaintiff Guardian Angel Credit Union sued defendant MetaBank on behalf of a class of plaintiffs seeking to recover losses caused by the fraudulent scheme of Charlene Pickhinke, a rogue MetaBank employee. Pickhinke used her position to induce dozens of institutions to transfer funds to the bank under the pretext that they would be used to purchase certificates of deposit. Pickhinke then diverted the funds to accounts under her personal control and issued fraudulent CDs in the bank’s name. On cross motions for summary judgment, the court dismissed the plaintiffs’ vicarious liability claim because there was no evidence that Pickhinke acted to further a purpose of her employment. The court denied summary judgment on claims for breach of contract and negligent supervision, however, because a reasonable juror could find that Pickhinke had acted with apparent authority when she issued the fraudulent CDs and that MetaBank was negligent in the hiring and supervision of Pickhinke. Finally, the plaintiffs’ claims for attorney’s fees were dismissed, as there was no evidence that MetaBank had litigated in bad faith or been stubbornly litigious. 24 pages. Judge Paul Barbadoro.


HABEAS CORPUS
7/6/11
William v. New Hampshire
Case No. 11-cv-024-PB, Opinion No. 2011 DNH 106

William filed a petition for a writ of habeas corpus, claiming that the trial court violated William’s right to present evidence when it excluded a witness from testifying at trial because defense counsel had not properly disclosed the witness. William also asserted that he had been denied his right to effective assistance of counsel by both his trial and appellate counsel. The court denied his petition, finding that his claim was time-barred and that no evidence in the record justified the application of equitable tolling to the one-year statute of limitations. 16 pages. Judge Paul Barbadoro.


MILITARY
7/22/11
Lambert v. Secretary of the Navy
Case No. 09-cv-354-PB, Opinion No. 2011 DNH 117

Colonel Gary Lambert brought suit against the Secretary of the Navy, arguing that his removal from the Marine Corps’ reserve active status list ("RASL") was improper. Specifically, Lambert alleged that the Secretary did not follow the applicable statutory and regulatory procedures governing selection retention boards ("SRBs") when the Secretary excluded from the Fiscal Year ’09 SRB’s consideration those colonels who were set to retire within the next two years and those colonels who had served less than two years in the position of colonel. The Secretary argued that the pertinent provisions were ambiguous, and asked the court to defer to his interpretation. The court held that the relevant statutory and regulatory language was clear and did not permit the restrictions imposed by the Secretary in this instance. The court then ordered the matter be remanded to another board to consider the effect the error had on Lambert’s record. 22 pages. Judge Paul Barbadoro.


MOTION TO AMEND COMPLAINT
7/14/11
Guardian Angel v. MetaBank
Case No. 08-cv-261-PB, Opinion No. 2011 DNH 112

Plaintiff Guardian Angel Credit Union sued defendant MetaBank on behalf of a class of plaintiffs seeking to recover losses caused by the fraudulent scheme of Charlene Pickhinke, a rogue MetaBank employee. Pickhinke used her position at the bank to induce dozens of institutions to transfer funds to the bank under the pretext that they would be used to purchase certificates of deposit. Pickhinke then diverted the funds to accounts under her personal control and issued fraudulent CDs in the bank’s name. Plaintiffs sought to amend the complaint to add a claim for punitive damages based on newly-acquired evidence alleging that a co-worker had informed the bank’s audit department that Pickhinke was not taking vacation time, a possibly sign of a fraudulent scheme, years before the fraud was discovered. The court denied the proposed amendment as futile because the facts pleaded by the plaintiffs illustrated, at most, negligence in MetaBank’s failure to discover the fraud, which was insufficient to justify punitive damages. 7 pages. Judge Paul Barbadoro.


NEGLIGENCE; NEGLIGENCE PER SE
6/1/11
Kevin McCarthy v. Weathervane Seafoods
Case No. 10-cv-395-JD, Opinion No. 2011 DNH 088

McCarthy, a contractor, brought negligence and negligence per se claims after he was injured in a fall from a ladder at a Weathervane Seafoods restaurant. Weathervane moved for summary judgment on the grounds that it owed no duty to an independent contractor and because McCarthy lacked a statutory basis for his negligence per se claim. In response, McCarthy pursued only part of his negligence claim and defended his negligence per se claim. The court granted summary judgment on the negligence claim to the extent it was based on the abandoned theory and on the negligence per se claim to the extent it was based on RSA 277:2 and OSHA regulations. 16 pages. Judge Joseph A. DiClerico, Jr.


SOCIAL SECURITY
7/7/11
Phelps v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-240-SM, Opinion No. 2011 DNH 107

Claimant appealed the denial of her application for disability insurance benefits, asserting that the denial was not supported by substantial evidence and that the case should be remanded for consideration of new evidence. The court denied claimant’s motions and affirmed the decision of the Commissioner. The court held that the alleged new evidence was not "material" and that claimant had not shown good cause for failing to include the evidence in the administrative record. The court further held that the ALJ’s failure to give reasons for disregarding the testimony of claimant’s husband was harmless error because the record as a whole contained substantial evidence supporting the ALJ’s decision. On the issue of disability onset date, the court held that the ALJ did not err in failing to obtain a medical opinion on that issue. 28 pages. Chief Judge Steven J. McAuliffe.


7/13/11
Robar v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-288-PB, Opinion No. 2011 DNH 110

The claimant appealed the denial of her application for disability insurance benefits on the grounds that the residual functional capacity determination by the administrative law judge was not supported by substantial evidence and that several treating source opinions were not given appropriate weight. The Commissioner moved for an order affirming the decision. The court granted judgment to the Commissioner, finding that substantial evidence supported the ALJ’s residual functional capacity determination and that the ALJ appropriately discounted several treating source opinions that were not supported by the objective medical evidence. 23 pages. Judge Paul Barbadoro.


7/15/11
Cindy A. Rossiter v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-349-JL, Opinion No. 2011 DNH 115

The claimant appealed a decision by an Administrative Law Judge of the Social Security Administration denying her claim for disability insurance benefits, based on the ALJ’s finding that the claimant had not been disabled as of her date last insured. The claimant argued that the ALJ had erred by failing to call on a medical advisor as to the onset date of her disability, even though her medical records were ambiguous on that point. The Commissioner argued that the records were not ambiguous but that, even if they were, the ALJ did not err by failing to call a medical advisor because the ALJ had never decided whether the claimant was disabled at present, only that she had not been disabled as of her date last insured. The court rejected these arguments, ruling that the ALJ had effectively determined the onset date of the claimant’s disability by ruling that it had not preceded her date last insured, and that the ALJ had erred by doing so based on ambiguous medical records without consulting a medical advisor. The case was remanded. 22 pages. Judge Joseph N. Laplante.


7/15/11
Angel Luis Serrano, Jr. v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-394-JL, Opinion No. 2011 DNH 114

The claimant appealed the denial of disability benefits claiming that the administrative law judge incorrectly concluded that although he was severely impaired due to a crush injury to his ankle, he retained the residual functional capacity to perform light work and there were a significant number of jobs available to him in the national economy. 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 portions of a treating source opinion that was in direct conflict with the administrative law judge’s determination that the claimant was not disabled. 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. 19 pages. Judge Joseph N. Laplante.


7/27/11
St. Louis v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-347-PB, Opinion No. 2011 DNH 118

Sherilyn St. Louis appealed the decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits. Specifically, St. Louis contended that the administrative law judge ("ALJ"): (1) failed to consider the effects of her obesity on her musculoskeletal ailments, (2) did not appropriately credit her treating source’s opinion, (3) arbitrarily confined her additional limitations to three days per month, and (4) failed to prove that a significant number of jobs existed in the national economy that St. Louis could perform. The court found that the ALJ’s decision was supported by substantial evidence because it: (1) did in fact consider the effects of St. Louis’ obesity on her musculoskeletal problems, (2) appropriately considered her treating source’s opinion, (3) accurately reported her residual functional capacity and (4) articulated a significant number of jobs that St. Louis could perform. 34 Pages. Judge Paul Barbadoro.


7/27/11
Duquette v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-204-PB, Opinion No. 2011 DNH 121

The claimant appealed the denial of her application for disability benefits, claiming that the administrative law judge erred in failing to give controlling weight to the opinion of her treating physician and that the ALJ’s residual functional capacity assessment was not supported by substantial evidence. The Commissioner moved for an order affirming the decision. The court granted judgment to the Commissioner, ruling that the ALJ appropriately found that the treating physician’s opinion was due little weight because it was inconsistent with the medical evidence in the record, and that the residual functional capacity determination was supported by substantial evidence. 20 pages. Judge Paul Barbadoro.


TAX
7/15/11
United States v. Isaacson, et al.
Case No. 09-cv-332-JL, Opinion No. 2011 DNH 113

In a federal tax enforcement action against two married taxpayers and a trust holding title to their home in Rye, New Hampshire, the trust moved to dismiss the claims against it, arguing that the government did not allege sufficient facts to support its theory that the trust was holding title to the home as a mere "nominee" for the taxpayers. The court denied the motion. While noting that the complaint was not especially detailed, the court concluded that the government alleged sufficient facts to survive a motion to dismiss and proceed with discovery on the "nominee" theory. 9 pages. Judge Joseph N. Laplante.

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