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Bar News - September 16, 2011


US District Court Decision Listing - August 2011

* Published

ATTORNEY FEES
8/24/11
LaBrecque v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-180-SM, Opinion No. 2011 DNH 131

Social security claimant filed petition for an award of attorney’s fees under the Equal Access to Justice Act. Fees sought were for work performed in securing judicial remand of claimant’s case to Commissioner for reconsideration in light of factual error committed by administrative law judge. Court denied the fee petition, finding that Commissioner’s position was "substantially justified." 5 pages. Chief Judge Steven J. McAuliffe.


CIVIL MOTIONS
8/1/11
InvestmentSignals, LLC v. Irrisoft, Inc.
Case No. 10-cv-600-SM, Opinion No. 2011 DNH 124

Plaintiff in this patent infringement suit moved the court to dismiss defendant’s counterclaims and strike its affirmative defenses, on grounds that they were not pled with sufficient specificity. The court denied the motion, concluding that defendant’s counterclaims met the pleading requirements of Rule 12(b)(6) and Form 18, which in turn met the requirements of Iqbal, while its affirmative defenses met the pleading requirements of Rule 12(f). 7 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS
8/10/11
Frank v. City of Manchester, et al.
Case No. 09-cv-389-PB, Opinion No. 2011 DNH 122

Plaintiff sued the City of Manchester and two City officials after he was denied a peddler’s license, alleging that defendants violated his Fourteenth Amendment right to procedural due process by failing to give him a constitutionally adequate post-deprivation hearing. Plaintiff also asserted other federal claims implausible on the facts of the case and various state law claims. Defendants moved for summary judgment. The court granted the motion with respect to plaintiff’s federal claims, concluding that plaintiff lacked a protected property interest in the license he was denied, because the relevant state and local laws give broad discretion to municipal officials in denying applications for licenses. The court dismissed plaintiff’s state law claims without prejudice. 12 pages. Judge Paul J. Barbadoro.


INSURANCE; EXAMINATION UNDER OATH (EUO)
8/19/11
Lessard v. EMC Insurance Companies,
Civil No. 10-cv-302-JL, Opinion No. 2011 DNH 128

Defendant moved for summary judgment in this insurance coverage dispute, arguing that the plaintiff’s failure to submit to an examination under oath precluded her from bringing suit for coverage of injuries sustained in a motorcycle accident. The court denied the motion. Under New Hampshire law, submission to an examination under oath is a condition precedent to filing suit only where the insurance company’s request for examination is reasonable. Because, inter alia, the defendant had waited years before requesting an examination of the plaintiff, the court concluded that the reasonableness of its request was a trialworthy issue. 11 pages. Judge Joseph N. Laplante.


JUDGMENTS: ATTORNEY’S FEES, COSTS, PRE-JUDGMENT INTEREST
8/26/11
Lifespan Corporation v. New England Medical Center, Inc., et al.,
Civil No. 06-cv-421-JL (RI), Opinion No. 2011 DNH 133

Following a bench trial, both sides moved to alter or amend the judgment in this case arising from a dispute between a Rhode Island healthcare system and a Massachusetts hospital over their brief and unsuccessful affiliation. The court awarded pre-judgment interest to both sides on their respective damages, but otherwise denied their motions, including the hospital’s motions for attorneys’ fees, expert fees, and other non-taxable costs, and the healthcare system’s motion to reduce its damages, which was contrary to the evidence. 20 pages. Judge Joseph N. Laplante.


JURISDICTION
8/22/11
Circuit Connect, Inc. v. Preferred Transport, et al.
Case No. 10-cv-514-SM, Opinion No. 2011 DNH 130

Plaintiff, a New Hampshire corporation, sued an Illinois re-seller of electronic equipment, alleging that the x-ray system it purchased from the re-seller arrived in New Hampshire in damaged condition. Defendant filed third-party complaint for negligent loading against Georgia company who loaded the system onto the truck for delivery to New Hampshire after having sold it to the defendant. Georgia company moved to dismiss the third-party complaint for lack of personal jurisdiction. The court granted the motion, finding that Georgia company’s sole contact with New Hampshire was not related to the negligent loading cause of action. 9 pages. Chief Judge Steven J. McAuliffe.


8/30/11
U.S. Department of Labor v. The Home Insurance Co.
Case No. 10-cv-572-SM, Opinion No. 2011 DNH 134

Secretary of the United States Department of Labor brought suit against state insurance liquidator and insolvent insurance company, seeking declaration that state claim priority statute is preempted by federal workers’ compensation law, or alternatively, that liquidator’s claim priority determination was contrary to state law. Defendants moved to dismiss on the ground that prior exclusive jurisdiction rested with the state court, or alternatively, that the federal court should abstain in favor of allowing the state court to resolve the claims. Court denied the motion with respect to federal claim, and granted it as to state law claims. Court granted guarantee funds’ motion to intervene. 15 pages. Chief Judge Steven J. McAuliffe.


REMAND
8/24/11
Sobel v. Derry, NH
Case No. 10-cv-592-SM, Opinion No. 2011 DNH 132

Plaintiff brought suit in state court to challenge a zoning decision by the defendant town. Town removed the case to federal court, invoking the court’s federal question jurisdiction. 28 U.S.C. § 1331. Thereafter, plaintiff conceded that his federal claims were not ripe, and requested remand of all claims to the state court. Town requested that all claims be dismissed as not ripe. Court dismissed the federal claims and remanded the state claims. 3 pages. Chief Judge Steven J. McAuliffe.


SECURITIES
8/19/11
Securities and Exchange Commission v. Jaeger, et al.
Case No. 07-cv-39-SM, Opinion No. 2011 DNH 129

Defendant moved for summary judgment on the two remaining claims against him - an aiding-and-abetting claim under Rule 10b-5 and a falsification-of-books-and-records claim. The court denied the motion, concluding that genuine issues of material fact precluded the entry of judgment as a matter of law in defendant’s favor. The SEC produced sufficient evidence, if credited as true by the trier-of-fact, to warrant the conclusion that defendant is liable on both remaining counts in the SEC’s complaint. 12 pages. Chief Judge Steven J. McAuliffe.


SOCIAL SECURITY
8/1/11
Putnam v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-371-SM, Opinion No. 2011 DNH 123

Claimant applied for Social Security Disability Insurance Benefits, alleging that he had been unable to work since January of 1998, due to knee pain. That application was denied and he appealed, asserting that the denial of his application was not supported by substantial evidence. He then moved the court to remand the matter to the Administrative Law Judge ("ALJ") for further proceedings. The court denied that motion, concluding that the ALJ’s RFC determination, his reliance on the testimony of a vocational expert, and his explanation for discounting some of the opinions of claimant’s treating physician were all well-reasoned and well-supported by substantial evidence in the record. 19 pages. Chief Judge Steven J. McAuliffe.

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