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

Keep your contact information up-to-date.

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 - January 13, 2012

US District Court Decision Listing - December 2011

* Published

Augustinowicz v. Nevelson et al.
Case No. 10-cv-564-PB, Opinion No. 2011 DNH 211

Plaintiffs Joseph and Jan Augustinowicz sued the Town of Acworth, several of its officials, a law firm that counseled the town, and a private individual, alleging a conspiracy to illegally seize their property. The court granted defendants’ motions to dismiss. The court determined that plaintiffs had not pled with sufficient particularity either that they were denied due process in state court or that the boundaries to their property had been illegally altered. The court also concluded that allegedly "threatening" letters from town officials did no more than provide statutorily required notice, and that plaintiffs’ claim that property taxes could be imposed only with the taxpayer’s consent was based on an erroneous and irrational reading of N.H. Rev. Stat. Ann. § 73:10. 10 pages. Judge Paul J. Barbadoro.

Novosel v. NH Dept. of Corrections, Comm’r et al.
Case No. 10-cv-165-PB, Opinion No. 2011 DNH 210

Novosel, an inmate at the New Hampshire State Prison, sued a number of prison officials under 42 U.S.C. § 1983. His first claim was that the defendants violated his First Amendment right to receive mail by failing to deliver certain letters that his brother wrote to him in Croatian. His second claim was that they violated his right to due process by failing to inform him of the fact that the prison was refusing to deliver the letters. All parties moved for summary judgment. The court granted the defendants’ motion. With respect to his First Amendment claim, the court concluded that Novosel failed to demonstrate that defendants lacked a legitimate penological reason to refuse to deliver his brother’s letters. With respect to Novosel’s second claim, the court found that due process did not require defendants to provide prior notice of the prison’s refusal to deliver letters lacking a correct inmate number. 17 pages. Judge Paul J. Barbadoro.

Margaret Jones v. Tommie C. McKenzie et al.,
Civil No. 10-cv-152-JL, Opinion No. 2011 DNH 209

The defendants moved for summary judgment on the plaintiff’s claims of constitutional violations under 42 U.S.C. § 1983 and negligence under state law, arising out of the plaintiff’s brother’s suicide while in the defendants’ custody. The plaintiff alleged that the Conway Police ignored her brother’s risk of suicide and that the Town of Conway failed to train the police properly to identify and care for potentially suicidal detainees. The court granted the defendants’ motions for summary judgment as to the § 1983 claim and declined to exercise supplemental jurisdiction over the state-law claims. In granting the defendants’ motions on the § 1983 claim, the court held that no rational finder of fact could conclude that the police acted with deliberate indifference to the decedent’s risk of suicide, because he did not present an unusually strong risk of suicide and, in any event, the police were not willfully blind to the risk he presented. The court further held that the Town of Conway could not be liable for a constitutional violation under § 1983 because the police did not violate the decedent’s substantive due process rights. The court also held that the claim against the Town of Conway failed for the independent reason that there was no evidence of the requisite causal connection between the town’s alleged failure to train the police and the decedent’s suicide. 19 pages. Judge Joseph N. Laplante.

Bourne v. Stewart Title Guarantee Company
Case No. 09-cv-270-PB, Opinion No. 2011 DNH 204

Bourne sued Stewart Title, alleging a breach of duty to defend his title in a series of litigations regarding Bourne’s vacation property. The parties filed cross-motions for summary judgment. The court granted Stewart Title’s motion. The court concluded that two breach of contract claims were barred by the statute of limitations. Stewart Title was entitled to summary judgment on the three remaining claims because the litigations that gave rise to those claims were expressly excepted or excluded from coverage under the title policy. 23 pages. Judge Paul J. Barbadoro.

Milford-Bennington Railroad v. Pan Am Railways
Case No. 10-cv-264-PB, Opinion No. 2011 DNH 206

After an employee of Milford-Bennington was found to have violated a safety rule governing train operation, Pan Am imposed on that employee a lifetime exclusion from its tracks. Although the contract between the parties permitted Pan Am to exclude a rule-breaking employee, Milford-Bennington argued that exclusion was an excessive penalty and was a violation of the implied duty of good faith and fair dealing. The court granted Pan Am’s motion for summary judgment, concluding that the contract plainly spelled out the rights and duties of the parties and that Pan Am’s invocation of its express right to exclude a rule-violating employee was not the sort of discretionary action that would implicate the duty of good faith and fair dealing. 16 pages. Judge Paul J. Barbadoro.

National Pasteurized Eggs, LLC v. L. John Davidson,
Civil No. 07-103-JL, Opinion No. 2011 DNH 208

The plaintiff sought a declaratory judgment that it owned a certain patent as the successor to a written agreement between the defendant and his former employer. The defendant argued that (1) the agreement was merely an unenforceable "agreement to agree," (2) his former employer had breached the agreement by failing to pay certain sums due thereunder, with the result that the defendant owned the patent, and (3) the agreement did not cover the patent because it contained inventiveness that was developed after the date specified in the agreement. Following a bench trial, the court ruled that (1) the parties intended to be bound by the agreement, even though it contemplated the execution of further documents, (2) the agreement did not condition the defendant’s assignment of the patent on the employer’s payment of the sums at issue, so the fact that they remained unpaid at the time the plaintiff succeeded to the agreement had no effect on the assignment, and (3) while the agreement was ambiguous in its use of the term "developed," the inventiveness in the patent had been developed prior to the date specified in the agreement, under any reasonable understanding of that term. 51 pages. Judge Joseph N. Laplante.

Forrester v. Wheelabrator
Civil No. 10-cv-154-JL, Opinion No. 2011 DNH 212

The parties submitted competing motions for summary judgment in a dispute arising from defendant’s statements, to a mutual customer, that it owned the rights to plaintiffs’ trade secret. The court granted the motions in part and denied them in part. Plaintiffs’ claims for tortious interference with contract, tortious interference with prospective advantage, and violation of the Consumer Protection Act were not barred by New Hampshire’s three-year statute of limitations, and plaintiffs were not entitled to summary judgment on them, because a genuine dispute of material fact existed as to when plaintiffs first knew or should have known of defendant’s misconduct. Defendants were entitled to judgment on plaintiffs’ Trade Secrets Act claim, however, as there was no evidence defendant ever knew the alleged secret and falsely claiming to own the secret did not constitute "disclosure" or "use" of it. Finally, plaintiffs were not entitled to judgment on defendant’s counterclaim because they had failed to plead the statute of limitations defense upon which that motion was based. 41 pages. Judge Joseph N. Laplante.

Contour Design, Inc. v. Chance Mold Steel Co., Ltd.,
Civil No. 09-cv-451-JNL, Opinion No. 2011 DNH 214

The plaintiff, a seller of ergonomic computer mouse products, sued the defendant, which had formerly served as the defendant’s exclusive manufacturer of those products, claiming the defendant had misappropriated the plaintiff’s trade secrets, and breached a non-disclosure agreement between them ("NDA"), by selling its own versions of the same products. After a jury returned a verdict for the plaintiff on all of its claims for damages, the court took additional evidence on the claims for non-jury relief, including enhanced damages for willful and malicious misappropriation of trade secrets and a permanent injunction enforcing the NDA. The court found and ruled that (1) the defendant had engaged in willful and malicious misappropriation, (2) in breach of the NDA, the defendant had used the plaintiff’s confidential information to make competing products, (3) in further breach of the NDA, the defendant’s products were "derived from or based on" those it had made for the plaintiff, (4) those provisions of the NDA were enforceable because they went no further than necessary to protect the plaintiff’s legitimate interests, and (5) a permanent injunction against the defendant’s further breaches was appropriate. 77 pages. Judge Joseph N. Laplante.

Fin Brand Positioning v. Take 2 Dough Productions
Civil No. 09-cv-405-JL, Opinion No. 2011 DNH 200

Defendants moved for summary judgment on each of plaintiffs’ claims arising from an alleged agreement to share the ownership of a retail pizza dough business. The court granted summary judgment for defendants on plaintiffs’ breach of contract claim, concluding that plaintiffs had not identified the alleged contracts during discovery, and that the contracts were in any event too indefinite to permit recovery in contract because they did not identify how the business’s expenditures and debts would be financed or how its profits would be disbursed. But the court denied summary judgment on the remaining claims for promissory estoppel, unjust enrichment, and violation of the Consumer Protection Act, concluding that the existence of a separate agreement between the parties dealing with different subject-matter did not bar plaintiffs’ claims and that a reasonable finder of fact could conclude that defendants’ conduct rose to the level of "rascality" prohibited by the Consumer Protection Act. 27 pages. Judge Joseph N. Laplante.

Fin Brand Positioning v. Take 2 Dough Productions
Civil No. 09-cv-405-JL, Opinion No. 2011 DNH 219

Defendants moved for reconsideration of the court’s denial of summary judgment to it on plaintiffs’ claims for promissory estoppel, unjust enrichment, and violation of the Consumer Protection Act. The court denied the motion. Though the alleged promises on which the promissory estoppel claim was based were too indefinite to support a breach of contract claim, that indefiniteness affected only the measure of damages plaintiffs could recover and did not bar their claim. Defendants’ remaining arguments did not demonstrate a "manifest error of fact or law" in the court’s prior ruling and were not a basis for reconsideration. 10 pages. Judge Joseph N. Laplante.

Ingalls v. Walgreen Eastern Co., Inc.
Case No. 10-cv-242-PB, Opinion No. 2011 DNH 205

In this diversity action, Ingalls sued against his former employer, Walgreens, alleging wrongful termination and intentional infliction of emotional distress. Walgreens moved for summary judgment. The court granted the motion. Ingalls’ wrongful termination claim failed as a matter of law because, in keeping quiet about his employer’s allegedly fraudulent conduct for years and then threatening exposure as a bargaining chip in an effort to keep his job, Ingalls did not perform an act that public policy would encourage. In addition, without evidence that the people who made the decision to fire him knew about his threat, Ingalls could not establish the causation required to support a wrongful termination claim. Because Walgreens’ alleged conduct in terminating Ingalls was not extreme and outrageous as a matter of law, Walgreens was entitled to summary judgment on the intentional infliction of emotional distress claim as well. 16 pages. Judge Paul J. Barbadoro.

Colassi v. Hartford Life & Accident Ins. Co., et al.
Case No. 10-cv-562-PB, Opinion No. 2011 DNH 206

Hartford sought dismissal from the action brought by Colassi on the grounds that it was not a proper party. Colassi was suing for benefits he allegedly were wrongfully denied to him under an ERISA plan established by his employer. The court granted the motion to dismiss because the employer, as the plan administrator who retained discretion to decide disputes, was the proper defendants. Hartford, who merely performed administrative services, was not a proper defendant. 6 pages. Judge Paul J. Barbadoro.

Martone v. Sokul,
Civil No. 11-cv-377-JL, Opinion No. 2011 DNH 215

Defendants moved to dismiss in this medical malpractice case, arguing that, based upon the dismissal of a prior action in Massachusetts, plaintiff’s claims were barred by res judicata. The court granted the motion. Under Massachusetts law, because the parties and cause of action in the prior action were identical, and the dismissal of the prior action with prejudice after plaintiff failed to post the bond required by law constituted a final judgment on the merits, plaintiff was barred from initiating a new action. Though one of the defendants had not been a party to the prior action, res judicata also barred the claims against him because those claims were premised solely on the theory that he was vicariously liable for the other defendant’s acts. 10 pages. Judge Joseph N. Laplante.

Shaw v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-141-SM, Opinion No. 2011 DNH 213

Claimant appealed the denial of her applications for Social Security Disability Insurance benefits and Supplemental Security Income benefits, asserting that the Commissioner erred by failing to recognize (at step two of the sequential analysis) that her bipolar disorder is a "severe" impairment and by failing to properly evaluate her subjective mental and physical symptoms. The court disagreed, noting that the Commissioner did consider her bipolar disorder in his questions to the vocational expert and concluded that there was substantial evidence in the record to support the Commissioner’s decision. 19 pages. Judge Steven J. McAuliffe.

United States v. Hulick, et al.
Case No. 08-cv-499-SM, Opinion No. 2011 DNH 201

The IRS sued David Hulick seeking to hold him personally responsible for the payment of taxes that his employer withheld from employees’ wages, but failed to remit to the IRS. The IRS claimed that, by virtue of his position and title at the company, Hulick was a "responsible person" under the tax code and, therefore, personally liable for such withholdings. The court denied the parties’ cross motions for summary judgment, concluding that the existence of genuinely disputed material facts - most of which relate to the precise nature and scope of Hulick’s authority within the company during the tax quarters at issue - precluded the entry of judgment as a matter of law in favor of either party. 27 pages. Judge Steven J. McAuliffe.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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