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Bar News - December 16, 2011


US District Court Decision Listing - November 2011

* Published

CIVIL PROCEDURE; REMAND; PREEMPTION
11/2/11
Woodsville Guaranty Savings Bank v. W.H. Silverstein, Inc.
Civil No. 11-cv-423-JL, Opinion No. 2011 DNH 182

After the defendant removed the action to federal court, the plaintiff moved to remand to state superior court. The court granted the motion. As grounds for federal jurisdiction, the defendant argued that plaintiff’s state-law claims for declaratory judgment, injunctive relief, replevin, and debt were preempted under the Copyright Act, and that the invocation of this defense gave rise to federal jurisdiction under the "complete preemption" doctrine. Without reaching the question of whether the complete preemption doctrine applied to the Copyright Act, the court concluded that the Copyright Act did not preempt the plaintiff’s claims, as those claims were essentially contractual in nature and required proof of elements beyond those required for a successful copyright claim. 11 pages. Judge Joseph N. Laplante.


EVIDENCE
11/2/11 Boucher v. CVS Pharmacy et al.
Civil No. 10-cv-328-JL, Opinion No. 2011 DNH 186*

The parties moved in limine to admit or exclude certain evidence from the jury trial in this negligence case arising from injuries suffered when the plaintiff slipped and fell on accumulated ice and snow in the parking lot of a pharmacy. The court ruled that photographs of the parking lot taken several weeks after the plaintiff’s fall would be excluded under Federal Rule of Evidence 403 because they presented a substantial risk of jury confusion. The court further ruled that evidence of the plaintiff’s previous falls, her prior use of a cane, and her medical history of walking problems would not be excluded because such evidence was relevant to the care a reasonably prudent person would have taken in the plaintiff’s circumstances; and that evidence that there had been no other falls similar to the plaintiff’s on the premises would not be excluded as irrelevant because such evidence was potentially relevant to show that the plaintiff’s fall was not caused by defendants’ negligence and that the defendants had no reason to know of the dangerous condition. 22 pages. Judge Joseph N. Laplante.


11/22/11
Joseph N. Massello v. The Stanley Works, Inc.
Civil No. 08-cv-136-JNL, Opinion No. 2011 DNH 195*

The parties to a wrongful death action arising out of the collapse of a plastic stepstool, manufactured by the defendant, in the decedent’s workplace, filed a number of motions in limine seeking to preclude evidence from the upcoming trial. Resolving the motions, the court ruled that (1) because the anticipated evidence allowed for competing inferences on whether the stool was already broken at the time of the accident, the defendant would not be precluded from arguing that theory, (2) a report of the accident by OSHA was admissible under Rule 803(8)(c), and was not unfairly prejudicial under Rule 403, because it addressed the employer’s responsibility for the accident, rather than the defendant’s, (3) the defendant’s post-accident testing of an example of the stool in its possession could be relied upon by the defendant’s experts in opining that the stool used by the decedent was safely designed, because the plaintiff’s theory that the stools were different in design was too far-fetched to make the testing unreliable, and the destruction of the stool in the testing did not amount to spoliation, because the defendant had provided the plaintiff with another example of the stool in response to his discovery request, (4) records of pre-accident testing of the stool were admissible as business records under Rule 803(6), even though they were no longer in possession of the entity that created them, (5) evidence of the decedent’s pre-existing medical conditions, work history, and drinking were admissible as relevant to his estate’s claimed damages for loss of life and lost wages, and (6) the defendant’s internal marketing materials about the stool were admissible as to its foreseeable uses. 41 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY; CAPABILITIES AND EMPLOYMENT OPPORTUNITIES
11/16/11
Cathy Anne Lonardo v. Michael J. Astrue, Commissioner, Social Security Administration
Civil No. 10-cv-482-JL, Opinion No. 2011 DNH 192

The claimant appealed the denial of disability benefits, claiming that the administrative law judge: (1) improperly concluded that she was capable of unskilled work despite evidence of depression and anxiety, (2) did not properly assess her credibility, (3) failed to give controlling weight to her treating physician’s functional capacity assessment, and (4) improperly relied on "the Grid" to determine the availability of work opportunities despite Lonardo’s non-exertional limitations. The Commissioner moved for an order affirming this decision. The court granted the claimant’s motion and denied the Commissioner’s motion. The court concluded that the Administrative Law Judge improperly relied on "the Grid." The Secretary bears the burden, at Step 5 of the evaluation process, of showing the existence of jobs in the national economy despite a claimant’s impairments. Reliance on "the Grid" is appropriate where a claimant’s limitations are exclusively exertional, or where non-exertional impairments impose no significant restrictions on the range of work a claimant can perform. The Administrative Law Judge ignored important non-exertional limitations and did not adequately explain why, given these limitations, an individual assessment by a vocational expert was not needed. The court also expressed concern that the Administrative Law Judge did not adequately address Lonardo’s claim that she suffered from fibromyalgia. 22 pages. Judge Joseph N. Laplante.


CONSUMER CREDIT
11/9/11
D’Angola v. Upstate Management Services & Benson
Case No. 11-cv-87-PB, Opinion No. 2011 DNH 185

D’Angola sued a debt collection agency and its attorney under 15 U.S.C. 1692, alleging that they engaged in debt collection activities in violation of the Fair Debt Collection Practices Act ("FDCPA") and various state laws. Defendant Benson filed a 12(b)(6) motion to dismiss, arguing that D’Angola had not sufficiently alleged that Benson qualified as a debt collector under the FDCPA and that the absolute litigation privilege immunized him from liability under state law. The court denied the motion. The court reasoned that D’Angola’s factual allegations regarding Benson’s status as a debt collector were sufficient to state a claim to relief that is plausible on its face. The court did not dismiss the state law claims based on the litigation privilege because D’Angola had met his burden of demonstrating that Benson’s statements were not relevant to the judicial proceeding against Benson’s client, Upstate. 10 pages. Judge Paul J. Barbadoro.


HABEAS CORPUS
11/7/11
Parkhurst v. Warden, NH State Prison Case No. 09-cv-240-PB, Opinion No. 2011 DNH 183

Parkhurst petitioned the court for a writ of habeas corpus, alleging that: (1) his trial counsel rendered ineffective assistance in four specific instances; and (2) the trial court violated his due process rights by improperly admitting Parkhurst’s sexually graphic statements to the police. The court granted the Warden’s motion for summary judgment. The court found that the state court reasonably applied federal law in determining that Parkhurst’s ineffective assistance claims failed because he could not show that the alleged deficiencies actually prejudiced his case. On a de novo review of his due process claim, the court found no indication of an evidentiary error, let alone one that rose to the level of a constitutional deprivation. 27 pages. Judge Paul J. Barbadoro.


MORTGAGES
11/14/11
French v. The Bank of New York Mellon
Case No. 11-cv-155-PB, Opinion No. 2011 DNH 187

French sought to enjoin the Bank of New York Mellon ("BONY") from foreclosing upon his property, and BONY filed a motion to dismiss for failure to state a claim. Although BONY may have improperly altered the document after its execution by adding a property description, the court found that the unaltered document contained a sufficient description of the property such that the mortgage was still enforceable. The court also determined that even if the recorded mortgage was unenforceable because of the alterations, BONY could still enforce the unrecorded, unaltered mortgage against French, who was an original party to the mortgage. Because the mortgage was enforceable, the court dismissed French’s claims under the federal and state Fair Debt Collection Practices Acts, which were premised on BONY’s advertisement of a foreclosure sale of the property despite an allegedly unenforceable mortgage. Lastly, the court denied BONY’s motion to dismiss on French’s claim that BONY could not enforce the mortgage because it did not hold the corresponding note. 13 pages. Judge Paul J. Barbadoro.


PATENT
11/21/11
Markem-Imaje Corp. v. Zipher Ltd et al.
Case No. 10-cv-112-PB, Opinion No. 2011 DNH 194

Markem, a manufacturer of thermal transfer printers, sought a declaratory judgment that a series of patents assigned to Zipher are invalid, unenforceable, and have not been infringed by Markem or its customers. The court issued an order construing the relevant patent terms. The court declined to treat the patents’ claims using the terms "controller" and "monitor" as means-plus-function claims. Additionally, the court construed: (1) the term "correction amount of tape . . ." to mean an "amount of tape, including a linear length of tape, or the tape associated with one or more steps of the one or more steps of the stepper motor;" (2) the "the operation of said two motors" to include "rotating or holding steady its respective spool of tape against rotation;" and (3) the phrase "parameter indicative of" to cover both direct and indirect methods of monitoring tape tension and spool diameter. 31 pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY
11/1/11
Pettigrew v. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-167-PB, Opinion No. 2011 DNH 180

Pettigrew appealed the Commissioner’s denial of his application for disability insurance benefits. Specifically, he claimed that the ALJ did not adequately assess the medical opinion of Pettigrew’s treating provider, and improperly assessed Pettigrew’s credibility. After reviewing the record, the court denied Pettigrew’s motion to reverse or remand the Commissioner’s decision. The court concluded that substantial evidence in the record supported the ALJ’s credibility determination and his decision to give no weight to the opinion of the treating physician. 23 pages. Judge Paul J. Barbadoro.


11/02/11
Mounce v. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-560-PB, Opinion No. 2011 DNH 181

Mounce sought review of the decision denying his application for disability insurance and supplemental security income benefits. The court reversed and remanded because the ALJ who considered Mounce’s application failed to properly address his pain complaints. Specifically, the ALJ used notes of Mounce’s treating providers out of context, noted long gaps between Mounce’s complaints of pain that were unsupported by the record, and failed to address Mounce’s claim that his lack of insurance was the reason behind periods in which he did not seek treatment. 31 pages. Judge Paul J. Barbadoro.


11/08/11
Juraska v. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-596-PB, Opinion No. 2011 DNH 184

Juraska sought review of the decision denying her application for disability insurance and supplemental security income benefits. The court affirmed, finding that the ALJ appropriately considered the extent and severity of her symptoms, properly weighed her credibility, and properly weighed opinion evidence from medical sources. 34 pages. Judge Paul J. Barbadoro.

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