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Bar News - November 18, 2011


US District Court Decision Listing - October 2011

* Published

CHOICE OF LAW
10/7/11
Michele Lacaillade, et al. v. Loignon Champ-Carr, Inc.
Case No. 10-cv-68-JD, Opinion No. 2011 DNH 165
The defendant moved for a determination of the law governing the issue of damages, arguing that New Hampshire choice of law considerations favored application of New Hampshire law. In response, the plaintiffs argued that, under the same choice of law principles, the court should apply Maine’s damages law. The court held that, based on New Hampshire’s choice of law considerations, Maine law should apply to the issue of damages. The court found that of the five considerations, only the question of which state had the sounder rule of law weighed strongly in favor of one state’s law over the other. The court concluded that Maine’s wrongful death statute, which set a higher cap on loss of consortium damages than New Hampshire’s wrongful death statute, was more consistent with the state of the law throughout the country, and, therefore, was the sounder rule of law. 12 pages. Judge Joseph A. DiClerico, Jr.


CIVIL MOTIONS (Miscellaneous)
10/24/11
Roy, et al. v. Commissioner, New Hampshire Department of Corrections, et al.
Case No. 09-cv-75-SM, Opinion No. 2011 DNH 177
Plaintiff moved the court to reconsider its order enforcing the parties’ (apparent) settlement agreement, saying he never authorized his attorney to settle on the terms described. The court granted that motion and set the matter for an evidentiary hearing, to determine whether plaintiff authorized counsel to settle his claims and/or whether plaintiff himself agreed to settle those claims during mediation. 4 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS
10/17/11
Paul Dionne v. Sergeant Matthew Amatucci, et al.
Case No. 10-cv-230-PB, Opinion No. 2011 DNH 170
Dionne’s Section 1983 claims alleged that the officers who arrested him used excessive force. The court found that Dionne’s sudden fall into a vehicle and inability to free himself from a steering wheel would have appeared to a reasonable officer on the scene to be an escalating pattern of resistance, and that the officers’ responding conduct was objectively reasonable. Without a cognizable constitutional harm, the officers’ supervisors could not be held liable. Dionne also raised state law claims, which failed for similar reasons as the federal claims. He pled a new cause of action under the New Hampshire Constitution, which the court declined to recognize in the absence of recognition by the New Hampshire Supreme Court. 19 pages. Judge Paul J. Barbadoro.


CONTRACTS; WAIVER AND LACHES
10/11/11
Groleau v. American Express Financial Advisors, et al.
Case No. 10-cv-190-JL, Opinion No. 2011 DNH 166
After holding a bench trial in a case in which the plaintiff sought specific performance of an agreement to arbitrate a commercial dispute, the court issued findings of fact and rulings of law. The court ruled that the plaintiff had waived his right to enforce the arbitration agreement by making no effort to schedule an arbitration for over four years, in the face of a court order that the plaintiff submit his claims to arbitration and despite the plaintiff’s repeated assurances that he would promptly arbitrate. The court further ruled that while the plaintiff’s assertion of his right to arbitrate was unreasonably delayed, the doctrine of laches did not bar plaintiff’s claim because defendants presented no evidence that the delay resulted in unfair prejudice. 18 pages. Judge Joseph N. Laplante.


DISCLOSURE OF EXPERT, FEDERAL RULES OF CRIMINAL PROCEDURE 16(A)(1)(G) AND 16(D)(2)
10/21/11
United States of America v. Paul Kavalchuk, et al.
Case No. 09-cr-178-JD, Opinion No. 2011 DNH 175
The defendants moved to preclude the testimony of a government witness pursuant to Fed. R. Crim. P. 16(d)(2) on the ground that the government failed to disclose the witness as an expert, as required under Fed. R. Crim. P. 16(a)(2)(G). In response, the government argued that the witness was not an expert and, alternatively, that if disclosure were required, the sanction of precluding his testimony was not appropriate because the lack of disclosure did not prejudice the defense. The count found that the witness’s expected testimony about his forensic examination of a computer was expert opinion within Fed. R. Evid. 702. With respect to the requested sanction of precluding his testimony, however, the court concluded that the defendants had not shown that the delayed disclosure prejudiced their defense and had not asked for a continuance, a necessary first step in seeking the sanction of preclusion. 6 pages. Judge Joseph A. DiClerico, Jr.


EMPLOYMENT (Wrongful Discharge)
10/12/11
Trefethen v. Liberty Mutual Group, Inc.
Case No. 11-cv-225-SM, Opinion No. 2011 DNH 167
Plaintiff filed suit against her former employer, saying it wrongfully terminated her employment and then fraudulently induced her to sign a release of claims. Defendant moved for judgment on the pleadings, asserting that plaintiff knowingly and voluntarily signed the release of claims and, despite her assertions to the contrary, there was no fraud or duress. Accordingly, said the defendant, plaintiff’s claims are barred by the release. The court denied that motion, holding that the complaint, taken as true, describes viable causes of action and defendant’s arguments rested on factual assertions better resolved on summary judgment. 3 pages. Chief Judge Steven J. McAuliffe.


HABEAS CORPUS
10/12/11
Ellis v. Warden, Northern NH Correctional Facility
Case No. 09-cv-276-SM, Opinion No. 2011 DNH 168
After petitioner caused a fatal automobile accident in Londonderry, New Hampshire, he was tried and convicted of negligent homicide and possession of a controlled substance. He then sought federal habeas corpus relief, asserting that the indictments against him were constitutionally deficient and that his rights under the Confrontation Clause were violated when, at trial, the state introduced a lab report showing his blood levels of various controlled substances. The court denied his petition, concluding the state court’s resolution of his constitutional claims was not contrary to, nor did it involve an unreasonable application of, federal law. 19 pages. Chief Judge Steven J. McAuliffe.


10/18/11
Jay Neeper v. Richard M. Gerry, Warden, New Hampshire State Prison
Case No. 11-cv-135-PB, Opinion No. 2011 DNH 172
The parties cross-moved for summary judgment on the petitioner’s petition for a writ of habeas corpus, which claimed that the New Hampshire Supreme Court’s decision affirming the petitioner’s conviction for aggravated felonious sexual assault was contrary to and an unreasonable application of federal law, and was based on an unreasonable determination of facts. The petitioner argued that in affirming his conviction, the Supreme Court allowed the state prosecutor to use the petitioner’s post-Miranda silence against him at trial, violating the rule set forth in Doyle v. Ohio, 426 U.S. 610 (1976). The court granted the respondent’s motion for summary judgment, holding that the Supreme Court properly identified and applied the law as set forth in Doyle. The court further held that the Supreme Court’s factual determination, that the state prosecutor did not reference the petitioner’s post-Miranda silence during closing argument, was not unreasonable. 16 pages. Judge Paul J. Barbadoro.


IRS SUMMONS, CIVIL CONTEMPT
10/6/11
United States of America v. C. Gregory Melick
Case No. 10-cv-308-JD, Opinion No. 2011 DNH 163
When the defendant failed to appear in response to an IRS summons, the government filed a petition to enforce the summons. The court ordered the defendant to show cause why the petition should not be granted. The defendant moved to dismiss the action and failed to appear at the show cause hearing. The court denied the motions to dismiss and granted the government’s petition to enforce the summons. The defendant again failed to comply with the order. The government moved to hold the defendant in contempt, and a show cause hearing was scheduled. The defendant failed to appear at the hearing, and the court issued a bench warrant for the defendant’s arrest. After the defendant was arrested and appeared at a hearing, the court held the defendant in civil contempt for failure to comply with the court’s order. 16 pages. Judge Joseph A. DiClerico, Jr.


JURISDICTION
10/20/11
Bruns v. Town of Fryeburg, Maine
Case No. 11-cv-183-SM, Opinion No. 2011 DNH 173
Plaintiff, a resident of New Hampshire, filed a state court negligence action against the Town of Fryeburg, Maine, alleging he was injured at the Town’s transfer station due to unsafe conditions at the station. Plaintiff was at the transfer station to collect the Town’s waste for transport to a disposal site located in New Hampshire. The Town removed the case to federal court and moved to dismiss for lack of personal jurisdiction. Finding that the plaintiff’s negligence cause of action was not related to the Town’s contacts with New Hampshire, the court granted the motion and dismissed the case without prejudice. 12 pages. Chief Judge Steven J. McAuliffe.


NEGLIGENCE PER SE
10/7/11
Michele Lacaillade, et al. v. Loignon Champ-Carr, Inc.
Case No. 10-cv-68-JD, Opinion No. 2011 DNH 164
The defendant moved to dismiss the plaintiffs’ negligence per se claim on the ground that Maine law, which governed the issue of liability, does not recognize a cause of action for negligence per se. The plaintiffs did not object to the motion. The court granted the defendant’s motion to dismiss the claim, holding that, under Maine law, the violation of a safety statute is merely evidence of negligence, and does not create a separate cause of action for negligence per se. 4 pages. Judge Joseph A. DiClerico, Jr.


SOCIAL SECURITY
10/12/11
Snow v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-609-SM, Opinion No. 2011 DNH 161
Claimant appealed the denial of her application for Social Security Disability Insurance Benefits. Specifically, she claimed the ALJ failed to give sufficient weight to the opinion of the examining psychologist who opined regarding claimant’s ability to cope with job stressors. After carefully reviewing the record, the court concluded that the ALJ erred by failing to provide an explanation for the lesser weight he accorded the psychologist’s opinion, or, by failing to explain how he considered and resolved the material inconsistency or ambiguity in the record. The court granted claimant’s motion to remand. 14 pages. Chief Judge Steven J. McAuliffe.


10/18/11
Spielberg v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-463-PB, Opinion No. 2011 DNH 171
Spielberg moved to reverse and remand the Commissioner’s decision to deny her application for social security benefits, arguing that the ALJ erred at Step Two of the sequential analysis and improperly relied on a state agency consultative opinion in forming her residual functional capacity. The Commissioner moved to affirm the decision. The court concluded that the ALJ failed to properly evaluate the consultative opinion and the opinions of the treating physicians and, as a result, that substantial evidence was lacking to support the Commissioner’s decision. The court granted Spielberg’s motion to reverse and remand. 20 pages. Judge Paul J. Barbadoro.


10/20/11
Davis v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-404-PB, Opinion No. 2011 DNH 174
Davis moved to reverse and remand the Commissioner’s denial of her application for social security benefits. While her appeal was pending, the SSA approved Davis’s second application for benefits. Thereafter, the Commissioner sought remand of the case for a new hearing and Davis objected. The court granted the Commissioner’s motion. The court reasoned that the first form of relief Davis sought, a remand with an order for payment of benefits, was not appropriate because she failed to demonstrate entitlement to such extraordinary relief. In rejecting Davis’s alternative argument for an order preventing the case from being returned to the same ALJ, the court concluded that the ALJ’s alleged mishandling of the case was insufficient to warrant the relief. Lastly, the court concluded that it had no authority to limit the scope of remand so as to prevent the Commissioner from consolidating Davis’s two applications. 6 pages. Judge Paul J. Barbadoro.


10/21/11
Remick v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-578-PB, Opinion No. 2011 DNH 176
Remick appealed the Commissioner’s denial of his application for social security benefits. Specifically, he claimed that the ALJ failed to consider the combined effect of his physical and psychological impairments in determining his residual functional capacity, and gave insufficient weight to the opinion of his treating physician that Remick was limited to part-time work. After reviewing the record, the court denied Remick’s motion to reverse or remand the Commissioner’s decision. The court concluded that the ALJ properly considered the combined effect of Remick’s multiple impairments, and that the ALJ’s decision to give little weight to the opinion of the treating physician was supported by substantial evidence. 29 pages. Judge Paul J. Barbadoro.


10/24/11
Dashnaw v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-456-SM, Opinion No. 2011 DNH 178
Claimant appealed the denial of her applications for Supplemental Security Income and Social Security Disability Insurance Benefits. Specifically, she claimed the ALJ failed to give sufficient weight to the opinions of an examining mental health professional who opined that claimant’s mental impairments are disabling. She also claimed the ALJ erred in concluding that there were jobs in the national economy she could perform. After carefully reviewing the record, the court concluded that the ALJ’s decision was supported by substantial evidence and, therefore, denied claimant’s motion to reverse or remand. 19 pages. Chief Judge Steven J. McAuliffe.


10/31/11
Ferland v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-123-SM, Opinion No. 2011 DNH 169
Claimant appealed the denial of his application for Supplemental Security Income Benefits. He claimed the ALJ failed to give sufficient weight to the opinion of claimant’s treating physician assistant and opinion of an occupational therapist who had performed a functional capacity evaluation. After carefully reviewing the record, the court concluded that the ALJ’s decision was supported by substantial evidence and, therefore, denied claimant’s motion to reverse or remand. 21 pages. Chief Judge Steven J. McAuliffe.


TORTS
10/4/11
Werst v. Wal-Mart Stores, Inc.
Case No. 09-cv-392-SM, Opinion No. 2011 DNH 162
While shopping at Wal-Mart, plaintiff climbed up on a shelving unit to retrieve an item and, as she stepped down, severely injured her hand on the top of a shelving support post. She sued Wal-Mart, saying it breached its duty to warn her of and/or to guard against the (allegedly) dangerous condition that caused her injury. Wal-Mart moved for summary judgment, saying there was no evidence that it knew or should have known of the allegedly dangerous condition. The court denied that motion, holding that the nature of the allegedly dangerous condition, and whether Wal-Mart had constructive knowledge of its existence, were genuinely disputed material facts, precluding entry of summary judgment. 10 pages. Chief Judge Steven J. McAuliffe.

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