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Bar News - March 16, 2012


US District Court Decision Listing - February 2012

* Published

CIVIL RIGHTS
01/17/12
Estate of Liko Kenney v. Gregory Willis Floyd, et al.
Case No. 10 cv 181 PB, Opinion No. 2012 DNH 046

In the course of a traffic stop, Liko Kenney shot and killed a police officer, and was then shot and killed by a bystander. Prior to the shootings, Kenney had fled the traffic stop, the officer had used his car to push Kenney’s car off the road, and the officer had used pepper spray on Kenney and Kenney’s passenger. Kenney’s Estate asserted Section 1983 claims for violations of Kenney’s Fourth Amendment rights, as well as various state law claims, against the police officer, his supervisors, the Town that employed the officer, and the bystander. In opposing defendants’ motion for summary judgment, Kenney’s Estate relied primarily on the affidavit of an investigator who interviewed the passenger in Kenney’s car. The passenger’s statements were hearsay, however, and could not be used to oppose a summary judgment motion. On the basis of the facts that were not disputed by competent evidence, the court determined that no reasonable jury could find that the officer had used excessive force or that Kenney’s Fourth Amendment rights had otherwise been violated. The court granted summary judgment for defendants on the federal claims, and declined to exercise supplemental jurisdiction over the state law claims. 16 pages. Judge Paul J. Barbadoro.


CIVIL RIGHTS; MANY SUBSTANTIVE TOPICS
2/2/12
Veale v. Furness
Civil No. 10-cv-147-JL, Opinion No. 2012 DNH 029

The defendants moved to dismiss the pro se plaintiffs’ claims arising out of alleged veterinary malpractice that resulted in the death of their dog. The court granted the motions. The complaint did not state a claim under 42 U.S.C. § 1985(3), because a claim under that section requires that the defendants’ actions were motivated by some racial or otherwise class-based animus, and the plaintiffs failed to allege any such animus. The complaint also did not state a claim under the RICO (Racketeer Influenced and Corrupt Organizations Act), 18 U.S.C. § 1961 et seq., because there were no allegations of racketeering activity by the defendants. The court declined to exercise supplemental jurisdiction over the plaintiffs’ remaining state-law claims. 14 pages. Judge Joseph N. Laplante.


FOIA
02/07/12
Sensor Systems Support, Inc. v. FAA
Civil No. 10 cv 262 PB, Opinion No. 2012 DNH 037

Sensor Systems sought to compel the FAA to produce redacted portions of records pursuant to FOIA. The FAA argued that the redacted portions fell under FOIA’s enumerated exemptions, and relied on a Vaughn index to explain the reasons. The court found certain entries in the Vaughn index sufficient to show that exemptions were warranted, but also found that many entries were insufficient to demonstrate that a given redaction properly fit in a category exempted from FOIA. The court therefore denied Sensor Systems’ motion for summary judgment and granted in part and denied in part the FAA’s motion for summary judgment. The FAA was instructed to produce a supplemental Vaughn index to demonstrate that the remaining exemptions were warranted, or to allow in camera review of the documents. 32 pages. Judge Paul J. Barbadoro.


FORECLOSURE
01/17/12
Jeanne L. Ingress v. Merrimack Mortgage Co., Inc. et al.
Case No. 11-cv-373-PB, Opinion No. 2012 DNH 040

Jeanne Ingress brought suit for money damages against five mortgage companies and a law firm, alleging the existence of defects in the chain of title to her mortgage as well as fraudulent conduct and disclosure violations that tainted the mortgage of her property and the subsequent foreclosure. Ingress had brought two prior suits in state court, one seeking to enjoin the foreclosure and the other for monetary damages. The court granted defendants’ motion to dismiss, holding that the claims were all barred by the res judicata effect of either the first or second state action. All three prongs of res judicata were met: all parties in this case were defendants in one or both of the prior state court proceedings; the cause of action in all the cases was based on the same factual transaction -- the chain of events from mortgage through foreclosure pertaining to the ownership and encumbrance of the property; and the prior cases were decided on the merits. 15 pages. Judge Paul J. Barbadoro.


NATURAL BORN CITIZEN CLAUSE
2/8/12
Abdul Karim Hassan v. State of New Hampshire, et. al
Case No. 11-cv-552-JD, Opinion No. 2012 DNH 038

The defendants moved to dismiss the plaintiff’s action for a declaratory judgment that the natural born citizen requirement of Article II of the U.S. Constitution has been implicitly repealed by subsequent amendments to the Constitution. The court granted the defendants’ motion to dismiss the action, holding that the plaintiff could not demonstrate that the Fourteenth Amendment had implicitly repealed the natural born citizen requirement. The court held that the plaintiff could not show that the Fourteenth Amendment was originally intended to abrogate the requirement. The court further held that Supreme Court cases discussing the "generalized spectrum" of equal rights for all citizens did not act to expand the Fourteenth Amendment to implicitly repeal the natural born citizen requirement, which addresses the "narrow, precise, and specific subject" of eligibility for the office of President. 11 pages. Judge Joseph A. DiClerico, Jr.


TELECOMMUNICATIONS ACT
2/16/12
New Cingular Wireless v. Town of Stoddard
Civil No. 11-cv-388-JL, Opinion No. 2012 DNH 046

In this action, the plaintiff alleged that the Stoddard Zoning Board of Adjustment had violated the federal Telecommunications Act (TCA) by initially approving the plaintiff’s application to construct a wireless facility, but later granting rehearing of that approval. This, the plaintiff contended, violated the TCA’s requirement that local governments act on wireless facility siting applications within "a reasonable time," and also constituted both an effective prohibition on wireless services and a denial of its application unsupported by substantial evidence, both of which are prohibited by the TCA. The defendants moved to dismiss the plaintiff’s claims. The court granted the motion in part and denied it in part. Pursuant to an FCC ruling interpreting the TCA, siting applications for wireless facilities must be resolved within a certain deadline, and due to the grant of rehearing, the plaintiff’s application had not been resolved by that deadline. Because the rehearing process under New Hampshire law was subject to the deadline, the town’s failure to take final action on the application within the deadline was presumptively "unreasonable" under the TCA. The court therefore denied the motion to dismiss the plaintiff’s claim that the defendants failed to act on its application within a reasonable time. Because, however, claims for effective prohibition and lack of substantial evidence cannot lie unless a local government has denied the plaintiff’s application, and the defendants had not done so, the court granted the motion to dismiss those claims. 23 pages. Judge Joseph N. Laplante.


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