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Bar News - April 13, 2012


US District Court Decision Listing: March 2012; February 2012 Supplements

* Published

CONTRACTS
3/29/12
Care Realty, LLC v. Lakeview Management Inc., et al.
Case No. 10-cv-95-SM, Opinion No. 2012 DNH 061

In prior litigation between these parties, the court held that the lessee of commercial real estate validly exercised an option to extend its lease. When the parties could not agree to the appropriate rental payments under the lease extension, they returned to court and tried their claims to the bench. The landlord asserted that it was entitled to invoke a rent escalation provision in the lease, while the tenant claimed that contractual right had been waived long ago. The court ruled in favor of the tenant, concluding that although the landlord did not strictly "waive" its right to invoke the rent escalation procedure, it "elected" to pursue an entirely different (and mutually exclusive) course of action - that is, it claimed the tenant was in default and, therefore, could not extend the lease. Because the court previously rejected the landlord’s position and held that the tenant validly extended the lease, and because the time for invoking the escalation procedure passed without any effort by the landlord to invoke it, the landlord could no longer avail itself of that process. 16 pages. Judge Steven J. McAuliffe.


COMPUTER FRAUD; DEFAMATION
3/30/12
Wentworth-Douglass v. Young & Novis, P.A., et al.
Case No. 10-cv-120-SM, Opinion No. 2012 DNH 057

Hospital sued doctors and their professional association under the Computer Fraud and Abuse Act, the New Hampshire Consumer Protection Act, and common law. Defendants counterclaimed for misappropriation of trade secrets, conversion, false light, and defamation. The parties moved for summary judgment. The court entered judgment in favor of defendants on the hospital’s Consumer Protection Act Claim. As to all other claims, it found that the existence of material factual disputes precluded summary disposition. 28 Pages. Judge Steven J. McAuliffe.


CIVIL MOTIONS (MISCELLANEOUS)
3/16/12
United States v. Hulick
Case No. 08-cv-499-SM, Opinion No. 2012 DNH 035

The government in this civil tax collection case sought leave to amend its complaint, so it might clarify a "mistake" it made in pleading the case, that defendant had repeatedly pointed out in the past and that the court identified in a prior order. That motion was denied, for several reasons, including the following: it was untimely, having been filed more than a year after the deadline to amend pleadings; discovery closed long ago and trial is scheduled for June, so granting the motion would cause undue delay and unfairly prejudice defendants; and the government failed to show good cause warranting late amendment, as is required by Rule 16(b). 3 pages. Judge Steven J. McAuliffe.


EMPLOYMENT
03/01/12
John Balsamo v. University of New Hampshire, et al.
Civil No. 10-cv-500-PB, Opinion No. 2012 DNH 048

John Balsamo’s employment as a maintenance technician for the University of New Hampshire was terminated. He brought suit against the University and several employees, alleging that they terminated him without adhering to the University’s policies governing the termination process, as set out in an online policy manual and reproduced in other documents. The court held that the disclaimers in the policy manual were sufficient to prevent it from becoming a contract and from imposing binding contractual obligations, and that Balsamo had failed to show the existence of any other document or policy that would create binding obligations. Because Balsamo was an at-will employee, he was due no particular process prior to his termination, and could be fired for any reason. The court also denied Balsamo’s procedural due process claim because he lacked any protected property interest. 30 pages. Judge Paul J. Barbadoro.


3/28/12
Masso v. City of Manchester, et al.
Case No. 11-cv-370-JL, Opinion No. 2012 DNH 062

In this employment discrimination action under Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Fair Labor Standards Act, and their state-law analogs, two of the defendants (the City of Manchester and the Manchester School District) moved for judgment on the pleadings, arguing that they could not be held liable under those statutes because neither was the plaintiff’s employer. The court granted the motion as to the School District, concluding that its failure to prevent the plaintiff’s employer from taking unlawful employment actions was not actionable under any of the statutes in question. The court denied the motion as to the City, however, concluding that because the City controlled the finances and management of the plaintiff’s employer, and made key employment decisions on behalf of the employer, it could potentially be held liable under the "single employer" doctrine. 9 pages. Judge Joseph N. Laplante.


COMMERCIAL LITIGATION
3/1/12
Beane v. Beane
Case No. 08-cv-236-JL, Opinion No. 2012 DNH 049

A limited liability company and its sole remaining manager and member, brought 21 separately numbered counterclaims against the plaintiff, formerly a manager and member of the company, alleging that he had caused the business to fail by mismanaging a key customer relationship and then, after leaving the company, misappropriating that relationship and the company’s intellectual property. The court granted the plaintiff’s motion for summary judgment on the counterclaims, ruling that (1) there was no evidence of any agreement between the plaintiff and either of the counterclaimants as to the ownership of intellectual property, (2) there was no evidence of any protectable trade secrets belonging to the counterclaimants; (3) there was no evidence that the plaintiff breached any of his duties to the counterclaimants before he resigned from the company, and, insofar as any such duty continued after his resignation, he did not violate it in his dealings with the company’s former customer, which did not start up again until after the company had abandoned the relationship; (4) even if the plaintiff’s withdrawal from the company breached the limited liability company agreement, it did not cause any harm; and (5) the counterclaimants’ state-law claims against the plaintiff for their fees in defending against his ERISA claim were preempted. 79 pages. Judge Joseph N. Laplante.


EVIDENCE
3/28/12
Starr v. Moore
Case No. 09-cv-440-JL, Opinion No. 2012 DNH 064*

In a case where the plaintiff, an inmate, claimed that the defendant, a prison employee, had retaliated against the plaintiff and shown deliberate indifference to his physical well-being by repeatedly telling other inmates that the plaintiff’s legal complaints were the cause of an unpopular change to the prison’s meal policy, each party moved to exclude evidence from the upcoming trial. The plaintiff moved to exclude evidence that, even after the alleged retaliation, he had continued to file complaints against the prison about unrelated matters. But the court ruled that this evidence was relevant, if not dispositive, on the issue of whether the defendant’s alleged conduct would have deterred a similarly situated individual of ordinary firmness from exercising his First Amendment right to file such complaints. The defendant moved to exclude evidence that he had blamed the plaintiff for the change to the meal policy, or that the plaintiff had been hassled by other inmates as a result, on any occasion but a particular one, arguing that, as to any other such occasions, the suit was untimely or barred by the plaintiff’s failure to exhaust administrative remedies. But the court ruled that, even if this was correct so that the plaintiff could recover for only the single incident, evidence of the defendant’s alleged statements on other occasions was admissible to show his intent as to that single incident and that, because legal and factual issues remained in question as to the defendant’s limitations and exhaustion defenses, the court would not decide them in the context of a pretrial motion in limine anyway. 14 pages. Judge Joseph N. Laplante.


HABEAS CORPUS
3/30/12
Montour v. Warden, Northern N.H. Correctional Facility
Case No. 11-cv-369-SM, Opinion No. 2012 DNH 030

Following his state court convictions for aggravated felonious sexual assault, petitioner sought federal habeas corpus relief. Petitioner claimed his rights under the Sixth and Fourteenth Amendments were violated when, after an in camera review, the trial court denied him access to certain police investigative reports relating to allegedly harassing phone calls petitioner’s victim made to him after his first trial ended in a hung jury. The court denied the habeas corpus petition, concluding that the excluded evidence was not material - that is, there is not a reasonable probability that, had the report been disclosed to the defense, the result of petitioner’s trial would have been different. 17 pages. Judge Steven J. McAuliffe.


HABEAS CORPUS, § 2254
3/21/12
Thomas v. Warden, N.H. State Prison
Case No. 07-cv-385-JL, Opinion No. 2012 DNH 056

The parties cross-moved for summary judgment on the petitioner’s petition for a writ of habeas corpus, which claimed a violation of the petitioner’s Sixth Amendment right to counsel and other constitutional violations. The petitioner argued that the New Hampshire Supreme Court’s decision affirming his convictions for receiving stolen property involved an unreasonable application of clearly established federal law and was based on an unreasonable determination of facts. The petitioner challenged the supreme court’s holding that his waiver of counsel at the trial level was knowing, voluntary, and intelligent under Faretta v. California, 422 U.S. 806 (1975), and that the trial court did not violate his constitutional right to due process and a fair trial under Britt v. North Carolina, 404 U.S. 226 (1971), by denying his request for a transcript of the suppression hearing. The petitioner further argued that he was entitled to habeas relief because the trial court improperly limited his opening statement and because he was denied the effective assistance of both standby counsel and appellate counsel. The court granted the respondent’s motion for summary judgment, holding that the supreme court properly applied clearly established federal law to the petitioner’s claims and did not base its decision on an unreasonable factual determination. The court further held that the trial court did not improperly limit the petitioner’s opening statement because, assuming that a defendant has a constitutional right to make an opening statement, the petitioner failed to articulate any evidence supporting his theory of defense to the trial court, despite repeated opportunities to do so. The court also held that the petitioner could not make out the necessary elements for his ineffective assistance of counsel claims. 44 pages. Judge Joseph N. Laplante.


INSURANCE COVERAGE: CONTRACTS
3/16/12
Young, et al. v. The Hartford Insurance Company
Case No. 11-cv-47-JL

The parties cross-moved for summary judgment on the plaintiffs’ claim for a declaratory judgment that their homeowners’ policy provided liability coverage against a claim that arose from an accident at a premises they owned. The defendant insurer had denied liability coverage under the policy because, in relevant part, it applied only to claims arising out of the insureds’ "residence," and the plaintiffs admittedly did not reside at the premises at any time while the policy was in effect, including when the claim arose. Based on this undisputed fact, the court granted the insurer’s motion for summary judgment, and denied the plaintiff’s cross-motion for summary judgment. The court rejected the plaintiff’s argument that the policy was ambiguous because it did not exclude claims arising out of renting the premises on an "occasional basis," ruling that this phrase clearly excluded renting the premises for the entirety of the policy period. 12 pages. Judge Joseph N. Laplante.


PERSONAL JURISDICTION
3/15/12
Michael Slocum, Executor of the Estate of Timothy Donovan and Cathy Carter v. Alexander Schleicher, GmbH & Co. Segelflugzeugbau, et al.
Case No. 11-cv-317-PB, Opinion No. 2012 DNH 055

The plaintiffs brought suit against the German manufacturer of a glider and the manufacturer’s distributor in this country after Timothy Donovan was killed when the glider crashed. The distributor, located in Ohio, moved to dismiss the claims due to a lack of personal jurisdiction. The plaintiffs asserted specific personal jurisdiction based on Donovan’s residence in New Hampshire and Donovan’s dealings, from New Hampshire, with the distributor and the manufacturer. The court granted the motion, concluding that the distributor’s contacts with New Hampshire were insufficient to support specific jurisdiction for purposes of the plaintiffs’ breach of warranty and negligence claims. 10 pp. Judge Paul Barbadoro.


PRELIMINARY INJUNCTION
3/2/12
Dartmouth-Hitchcock Clinic, et al. v. NH DHHS
Case No. 11-cv-358-SM, Opinion No. 2012 DNH 032

A number of New Hampshire hospitals moved the court to enjoin the State’s Commissioner of Health and Human Services from enforcing significantly reduced reimbursement rates for medical care provided through the State’s Medicaid Program. That motion was granted in part, and denied in part. Specifically, the court held that, prior to implementing the rate reductions, the State failed to meet its statutory obligations under 42 U.S.C. § 1396a(a)(13)(A) to provide public notice of the proposed reductions, with opportunity for public comment. Accordingly, the court ordered the Commissioner to provide notice of his intent to continue to apply the reduced rates, and a fair opportunity for providers, beneficiaries, and interested residents to comment, all in a manner consistent with Section (13)(A). 31 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY
3/16/12
McAulay v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-95-SM, Opinion No. 2012 DNH 031

Claimant moved the court to reverse the Commissioner’s denial of her application for Social Security benefits. The court granted that motion, to the extent it sought remand to the administrative law judge for further proceedings. The court concluded that the ALJ failed to adequately support his decision to give the opinions of claimant’s treating physicians less than controlling weight, since those opinions were well-supported and did not appear to be inconsistent with other substantial evidence in the record. 16 pages. Judge Steven J. McAuliffe.


03/17/12
Deborah A. Mitchell v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-539-PB, Opinion No. 2012 DNH 054

Deborah Mitchell sought review of the Commissioner’s decision denying her application for disability insurance benefits. The court determined that the ALJ failed to properly account for the opinion evidence of record, discounting the opinion of a treating source without providing sufficient reasoning. The case was remanded to the Social Security Administration for further proceedings. 18 pages. Judge Paul J. Barbadoro.


3/20/12
Walsh v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-108-SM, Opinion No. 2012 DNH 034

Claimant moved the court to reverse the Commissioner’s denial of his application for Social Security benefits. The court granted that motion, to the extent it sought remand to the Commissioner for further proceedings. The court concluded that the Commissioner failed to address an underlying evidentiary conflict regarding the limiting effects of claimant’s bipolar disorder. 16 pages. Judge Steven J. McAuliffe.


03/22/12
Shawn McGrath v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-455-JL, Opinion No. 2012 DNH 060

The claimant appealed the denial of disability benefits, claiming that the administrative law judge: (1) failed to give controlling weight to the opinions of a treating licensed clinical social worker and registered nurse, (2) formulated a residual functional capacity that was inconsistent with medical providers given great weight, and (3) did not give proper weight to a ruling by the Veteran’s Administration that McGrath was disabled. McGrath also argued that the reasoning ability required to perform jobs identified by the ALJ exceeded his mental functional capacity. The Commissioner moved for an order affirming this decision. The court denied the claimant’s motion and granted the Commissioner’s motion. The court ruled that the ALJ was not required to give special weight to the opinions of McGrath’s social worker and the registered nurse, and properly explained her reasons for giving those opinions less weight. The court also concluded that the ALJ’s treatment of the physician opinion evidence was proper. Further, the ALJ was not required to give special weight to the Veteran’s Administration’s ruling, and her decision was supported by the record. Finally, the court concluded that although it was unable to discern whether the reasoning levels required by most of the jobs were encompassed in McGrath’s mental RFC, the ALJ identified at least one job that McGrath was capable of performing, and therefore there was no error. 28 pages. Judge Joseph N. Laplante.


2/9/12
Szczepanski v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-571-SM, Opinion No. 2012 DNH 042

Claimant moved the court to reverse the Commissioner’s denial of her application for Social Security benefits. The court granted that motion, to the extent it sought remand to the administrative law judge for further proceedings. Specifically, the court concluded that the ALJ failed to adequately consider the entire record when assessing claimant’s credibility and did not adequately support his decision to discount the opinions of claimant’s treating physicians. 21 pages. Judge Steven J. McAuliffe.


VACATE SENTENCE
2/7/12
Bayard v. United States
Case No. 11-cv-301-SM, Opinion No. 2012 DNH 036

Petitioner was convicted of aggravated identity theft and using an unauthorized access device with intent to defraud. Following his unsuccessful appeal, he sought relief pursuant to 28 U.S.C. § 2255, asserting that his appellate counsel provided constitutionally deficient representation. Specifically, he says counsel failed to appeal his claim that he did not "use" a third party’s credit card because he never "swiped" it at a point of sale register. He also says that, on appeal, counsel failed to raise meritorious evidentiary challenges. The court denied the petition, holding that petitioner failed to meet his substantial burden of showing a reasonable probability that, but for counsel’s unreasonable failure to raise those issues, he would have prevailed on his appeal. 11 pages. Judge Steven J. McAuliffe.

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