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Bar News - February 17, 2012


US District Court Decision Listing - January 2012

* Published

CIVIL RIGHTS
1/31/12
Byrnes v. Manchester, NH, et al.
Case No. 10-cv-551-SM, Opinion No. 2012 DNH 028

In this lawsuit, plaintiff sued the city, police department, and individual police officers, alleging unlawful arrest and detention. Defendants moved for summary judgment. The court granted the motion as to all federal claims. It held that officers had probable cause to believe that a passenger in the vehicle had committed the offense of disorderly conduct, they were entitled to qualified immunity, for pulling the car over. The court also held that officers were entitled to qualified immunity, and judgment on the merits, with respect to plaintiff’s federal constitutional challenges to an extended detention to investigate a possible DUI, and the driver’s subsequent arrest. The court declined to exercise supplemental jurisdiction over the remaining state law counts, and dismissed them without prejudice. 41 pages. Judge Steven J. McAuliffe.


DOG BITE STATUTE
1/30/12
Lorrain v. Branscombe
Case No. 10-cv-145-JL, Opinion No. 2012 DNH 024

Defendant moved for summary judgment on plaintiff’s claim under N.H. Rev. Stat. § 466:19, the "dog bite statute." The court granted the motion. The plaintiff could not recover under the dog bite statute for injuries caused when a dog ran out into the street in front of her motorcycle because, under the New Hampshire Supreme Court’s construction of the statute, running out into the street was not a "vicious or mischievous act," which is also a requirement under the New Hampshire Supreme Court’s construction. In addition, the defendant could not be held liable as the dog’s "keeper" under the statute because, although he may have permitted the dog to live on his property and visit his business, he never attempted to manage, control, or care for the dog. 13 pages. Judge Joseph N. Laplante.


ERISA
1/5/12
Kaufmann v. Prudential Insurance Co. of America
Case No. 11-cv-119-PB, Opinion No. 2012 DNH 003

Kaufmann brought an ERISA action, seeking to recover long-term disability benefits. Prudential filed a motion for summary judgment, alleging that Kaufmann failed to exhaust her ERISA plan’s administrative remedies before filing suit. The disputed legal issue was whether an ERISA claimant must comply with an administrative appeal procedure that is included in an ERISA plan’s Summary Plan Description ("SPD") but not in the written instrument that established the plan. The court concluded that a mandatory appeal procedure contained in the SPD but not in the written instrument that established the plan is unenforceable. As a result, the court denied the motion for summary judgment. 12 pages. Judge Paul J. Barbadoro.


INTELLECTUAL PROPERTY (COPYRIGHT)
1/23/12
Paper Thermometer Company, Inc. v. Murray, et al.
Case No. 10-cv-419-SM, Opinion No. 2012 DNH 017

Plaintiffs claimed defendants’ use of copyrighted materials on their website violated both the Copyright Act and the Lanham Act. The court granted defendants’ motion for summary judgment, concluding that plaintiffs had not suffered any actual damages as a result of defendants’ alleged conduct. And, because it was highly unlikely that plaintiffs would ever repeat that conduct in the future, the court held that plaintiffs were not entitled to prospective injunctive relief. Finally, as to plaintiffs’ state law causes of action, the court declined to exercise supplemental jurisdiction. 26 pages. Judge Steven J. McAuliffe.


LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT
1/27/12
U.S. Department of Labor v. Home Insurance, et al.
Case No. 10-cv-572-SM, Opinion No. 2012 DNH 020

The U.S. Department of Labor sought a declaration that the assessment provision of the Longshore and Harbor Workers’ Compensation Act required a state insurance liquidator to give first priority to the Department’s claim in a state insurer liquidation proceeding, contrary to state priority law. The court denied the Department’s motion for summary judgment. It held that the state’s claim priority law, which allowed for payment of federal claims only after payment of administrative costs and claims of Guaranty Funds, was not preempted by the Longshore statute. The court also held that, in any event, the McCarran-Ferguson Act shielded the state priority law from federal preemption. 35 pages. Judge Steven J. McAuliffe.


MOTION FOR RECONSIDERATION; BUSINESS TORTS
1/30/12
Forrester v. Wheelabrator
Case No. 10-cv-154-JL, Opinion No. 2012 DNH 022

Defendant moved for reconsideration of the court’s denial of summary judgment to it on plaintiffs’ claims for tortious interference with contract, tortious interference with prospective advantage, and violation of the Consumer Protection Act. The court denied the motion. Genuine issues of material fact existed as to (a) whether there was a causal connection between plaintiffs’ damages and defendant’s alleged conduct and (b) when plaintiffs first learned of a possible causal connection between their damages and defendant’s alleged misconduct for purposes of the statute of limitations, precluding summary judgment for defendant. 10 pages. Judge Joseph N. Laplante.


NEGLIGENCE
01/17/12
Peterboro Tool Co., Inc. Profit-Sharing Plan & Trust v. People’s United Bank
Case No. 11-cv-437-PB, Opinion No. 2012 DNH 026

The fiduciary of the plaintiff made a series of unauthorized withdrawals from the plaintiff’s bank account at defendant bank, misappropriating approximately $250,000 for his own use. Plaintiff asserted that the fiduciary’s suspicious conduct should have alerted the bank to the theft, and that the bank was therefore liable for (1) negligence; (2) breach of fiduciary duty; and (3) bailment. The court granted defendant’s motion to dismiss on all claims. The plaintiff failed to state a claim in negligence because under the extremely similar facts of Ahrendt v. Granite Bank, 144 N.H. 308 (1999), the New Hampshire Supreme Court held that a bank has no duty to protect a depositor from the criminal conduct of a third party. Specifically, a bank has no duty to protect a depositor from the unauthorized acts of its agent. The court denied the remaining claims because the ordinary relationship between a depositor and a bank is contractual in nature; it is neither a fiduciary relationship nor a bailor-bailee relationship. 15 pages. Judge Paul J. Barbadoro.


PRIOR EXCLUSIVE JURISDICTION; COLORADO RIVER ABSTENTION
4/1/11
Glenn Beane v. Mii Technologies, L.L.C.
Case No. 10-cv-307-JL, Opinion No. 2012 DNH 023

After obtaining an assignment of a judgment issued against the defendant by another federal district court, the plaintiff sought to execute on the judgment against funds held at a bank in the name of a third-party law firm. Whether the funds in the account belonged to the judgment debtor or to another person was disputed, however, and the law firm had previously commenced an interpleader action in Superior Court to resolve their ownership. Because the property at issue had been placed under the control of another court, this court ruled that (1) it lacked the power to issue an execution against the property under the doctrine of prior exclusive jurisdiction or (2) even if jurisdiction existed, the court should abstain from exercising it under the doctrine set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), particularly because the state interpleader action was on the eve of trial and the federal proceeding appeared vexatious or contrived. 18 pages. Judge Joseph N. Laplante.


PRODUCT LIABILITY
*1/11/12
Melissa Jenks, Individually and as G/N/F of Roderick Jenks v. New Hampshire Motor Speedway and Breann Thompson v. A.B.L., Inc.
Case No. 09-cv-205-JD, Opinion No. 2012 DNH 009

Third-party defendant, A.B.L., Inc., moved for summary judgment on the product liability claim against it, arguing that because it was a lessor of the allegedly defective golf cart, not the manufacturer or seller, it was not liable for any defect in the cart. A.B.L. also argued that the Speedway and Thompson could not prove the failure-to-warn claim because they lacked expert opinion evidence. The court held that New Hampshire would adopt the expansion of strict liability as provided in the Restatement (Third) of Torts: Products Liability § 20(b) to include commercial lessors, such as A.B.L., and that the expert opinion evidence was sufficient to support the claim against A.B.L. The motion for summary judgment was denied. 11 pages. Judge Joseph A. DiClerico, Jr.


REAL ESTATE CONTRACTS; MORTGAGES; CONTRACTS; RELATED THEORIES
1/27/12
Moore v. Mortgage Electronic Registration Systems
Case No. 10-cv-241-JL, Opinion No. 2012 DNH 021

Defendants moved to dismiss the pro se plaintiffs’ claims arising from the origination, servicing, and foreclosure of their mortgage loan. The court granted the motions in part and denied them in part. Plaintiffs’ claim under the Real Estate Settlement Procedures Act would not be dismissed because their allegations of emotional distress, if proven, could entitle them to recover actual damages. Plaintiffs’ claim under the Fair Debt Collection Practices Act against a law firm representing the foreclosing mortgagee would not be dismissed because the firm could be held liable as a debt collector. Plaintiffs’ claims for fraud, intentional misrepresentation, and negligent misrepresentation in the loan modification and servicing process against two of the entities servicing their loan were pleaded with particularity and would not be dismissed. Plaintiffs claim for a declaratory judgment that defendants could not enforce the mortgage note would not be dismissed because possession of a note is a prerequisite to its enforcement, and plaintiffs had sufficiently alleged that defendants did not possess the note. Plaintiffs’ remaining claims were not sufficiently supported by factual allegations and would be dismissed. 60 pages. Judge Joseph N. Laplante.


SECTION 1983: SUBSTANTIVE DUE PROCESS
1/25/12
Kraft v. Mayer & University of New Hampshire
Case No. 10-cv-164-PB, Opinion No. 2012 DNH 018

Kraft, a former Assistant Research Professor at the University of New Hampshire ("UNH"), sued UNH and the director of her department in state court, asserting a number of claims in connection with her employment termination. Defendants removed the action to federal court based on federal question jurisdiction over Kraft’s Section 1983 claim. The court granted defendants’ motion for summary judgment with respect to that claim. The court concluded that Kraft’s allegation of substantive due process violation failed as a matter of law because she produced insufficient evidence to permit a reasonable factfinder to conclude that defendants’ conduct was so offensive and egregious as to "shock the conscience." The court declined to exercise supplemental jurisdiction over her state law claims. 24 pages. Judge Paul J. Barbadoro.


SETTLEMENT
1/25/12
Gosselin v. Commissioner, NH Department of Corrections
Case No. 09-cv-75-SM, Opinion No. 2012 DNH 019

Defendants moved to enforce a settlement agreement. Plaintiff objected, saying he was coerced by the mediator into accepting the settlement offer, that his attorney was not authorized to accept the settlement on his behalf, and that under the literal terms of the agreement he signed he was entitled to the benefits but not obligated to drop his claims. After conducting an evidentiary hearing, the court dismissed plaintiff’s claims with prejudice, concluding that he personally agreed to the settlement, knowingly and voluntarily, fully understanding that he was agreeing to drop his claims, and, that his legal counsel was authorized by him to agree to the settlement. 6 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY
01/10/12
Stephanie V. Ault v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-553-JL, Opinion No. 2012 DNH 005

The claimant appealed the denial of disability benefits, claiming that the administrative law judge: (1) erroneously concluded that certain impairments were not severe, (2) failed to give controlling weight to her treating physician’s functional capacity assessment, and (3) did not properly formulate Ault’s residual functional capacity. The Commissioner moved for an order affirming this decision. The court granted the claimant’s motion and denied the Commissioner’s motion. The court ruled that the Commissioner properly concluded that certain impairments were not "severe" under the applicable regulations. An ALJ has a duty, however, to factor into his residual functional capacity analysis the effects, if any, of non-severe impairments on a claimant’s functional abilities. The AlJ committed error because he failed to account for these impairments when fashioning Ault’s residual functional capacity. The ALJ also failed to adequately explain his reasons for disregarding the opinion of Ault’s primary care physician that Ault was incapable of full-time employment. 22 pages. Judge Joseph N. Laplante.


01/11/12
Jason Shulkin v. Michael J. Astrue, Commissioner, Social Security Administration
Civil No. 10-cv-451-PB, Opinion No. 2012 DNH 007

The claimant appealed the denial of disability benefits, contending that the administrative law judge erred in failing to consider testimony, in making vocational determinations, and in assessing credibility. The court granted the claimant’s motion to reverse, holding that the failure to consider the testimony of the claimant’s father was error because the testimony supported his son’s position and was not cumulative of other evidence. The error was not harmless because the contrary evidence cited by the administrative law judge was, at best, equivocal. The court determined that the ALJ failed to address the central conflict in the evidence, cherry-picking the portions of the record that supported his position while ignoring the portions supporting the claimant’s position. 28 pages. Judge Paul J. Barbadoro.


1/17/12
Bell v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-45-PB, Opinion No. 2012 DNH 010

Bell appealed the Commissioner’s denial of her application for supplemental security income benefits. After reviewing the record, the court concluded that the ALJ committed reversible errors in his assessment of Bell’s physical residual functional capacity. Specifically, the ALJ improperly relied on an outdated opinion of a state agency consultative physician, interpreted subsequent raw medical data without assistance of an expert, and proceeded to cherry-pick evidence from the record to support his conclusion that the record as a whole did not match Bell’s alleged limitations without acknowledging conflicting evidence. As a result, the court granted Bell’s motion to reverse and remand the Commissioner’s decision. 26 pages. Judge Paul J. Barbadoro.


01/31/12
Melissa Ann Egan v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-147-JL, Opinion No. 2012 DNH 025

A claimant appealed the denial of disability benefits, contending that the administrative law judge: (1)failed to give controlling weight to the opinion of her treating physician, (2) improperly determined that Egan was capable of performing her past work as a secretary, and (3) improperly relied on the "Grid" to conclude, in the alternative, that Egan also was capable of performing other jobs in the national economy. The Commissioner moved for an order affirming his decision. The court denied the claimant’s motion and granted the Commissioner’s motion. The court concluded that the ALJ properly gave minimal weight to a treating source who opined that Egan’s social difficulties and depression rendered her unable to work more than 10-19 hours per week because that opinion was inconsistent with the record. The court also concluded that because the treating source opinion was rendered in a cursory fashion and obtained specifically for the purpose of bolstering Egan’s case, the ALJ could properly give it less weight. The court also concluded that the ALJ exercised due care in concluding that Egan was capable of performing secretarial work. Although it would have been preferable for the ALJ to consult a vocational expert instead of using the "Grid" to determine that Egan was capable of performing other jobs available in the national economy, the ALJ did not err as record evidence supported his conclusion that Egan’s non-exertional impairments did not unduly restrict the range of work she was able to perform. 25 pages. Judge Joseph N. Laplante.


TAXES
01/17/12
Jonathan Shafmaster & Carol Shafmaster v. United States of America
Case No. 09-cv-238-PB, Opinion No. 2012 DNH 011

The government sought summary judgment on the Shafmasters’ claim for a tax refund of a failure-to-pay penalty. The only issue in dispute was whether the government had properly made notice and demand as required by 26 U.S.C. § 6651(a)(3). The court denied the government’s motion because the document asserted to constitute notice and demand did not on its face appear to make a demand for payment, and because the evidence presented did not establish that the notice was sent as claimed. Another document submitted by the government, however, did appear to constitute notice and demand, and its receipt was not contested by the Shafmasters. The court instructed the government to submit a new summary judgment motion articulating why that document was sufficient to prove proper notice and demand. 4 pages. Judge Paul J. Barbadoro.

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