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 - May 18, 2012

US District Court Decision Listing - April 2012

* Published

Kenn Goldblatt et al. v. Nancy J. Geiger et al.
Case No. 10 cv 537 PB, Opinion No. 2012 DNH 065

Defendants moved to dismiss plaintiffs’ claims of violation of their rights under the Americans with Disabilities Act, as well as claims of constitutional violations under 42 U.S.C. § 1983, arising out of defendants’ exclusion of plaintiff Goldblatt as plaintiff Mazzu’s non attorney representative in New Hampshire Family Court. The court granted defendants’ motion to dismiss the action, noting that the Family Court had excluded Goldblatt as Mazzu’s non attorney representative because Goldblatt had failed to comply with a Family Court rule governing non attorney representatives. The court held that where a state court allows an individual to be represented by either an attorney or a non attorney, it does not violate the ADA to require that representative to follow certain state procedures or rules in order to appear in court. The court further held that plaintiffs did not allege facts to support a retaliation claim under the ADA because they did not allege a causal connection between defendants’ order excluding Goldblatt as a non attorney representative and his assistance in Mazzu’s ADA claim. The court also held that Goldblatt did not allege facts to support a constitutionally protected property interest or an equal protection claim. 33 pages. Judge Paul J. Barbadoro.

Leif Anderson v. United States
Case No. 12-cv-115-SM, Opinion No. 2012 DNH 067

Petitioner sought appointment of counsel to represent him in pursuing habeas relief under 28 U.S.C. § 2255. Counsel for the government agreed. Although the court noted that there is no constitutional right to counsel in federal habeas corpus proceedings, it concluded that petitioner’s claims were not frivolous and potentially involved intricate legal issues. And, the government’s agreement that counsel should be provided for petitioner provided the necessary weight to tip the scales in his favor. Accordingly, the court found that the interests of justice require that counsel be provided for petitioner. 18 U.S.C. § 3006A(a)(2)(B). 4 pages. Judge Steven J. McAuliffe.

Forrester v. Wheelabrator
Civil No. 10-cv-154-JL, Opinion No. 2012 DNH 068

The defendant in this commercial dispute moved in limine to preclude the plaintiffs from offering the videotaped deposition testimony of one of their witnesses, a resident of Taiwan, at trial. The court denied the motion, ruling that because the witness was "unavailable" within the meaning of Fed. R. Civ. P. 32(a)(4) and the plaintiffs had done nothing to procure his absence, they could present his videotaped testimony although he was their agent. The court also rejected the defendant’s arguments that the videotaped testimony should be excluded because (a) the witness’s credibility was at issue, making his testimony at trial necessary, and (b) the defendant did not have the benefit of prior deposition testimony with which to cross-examine him at the deposition. Finally, the court ruled that exclusion of the testimony was not an appropriate sanction for the plaintiffs’ failure to seek leave of court under Fed. R. Civ. P. 30(a)(2) before taking the videotaped deposition, the witness’s second deposition of the case. 11 pages. Judge Joseph N. Laplante.

Crystal Moses v. Mark Mele
Civil No. 10-cv-253-PB, Opinion No. 2012 DNH 074

Crystal Moses, whose son was then under investigation, accompanied her son’s girlfriend, Catherine Sims, to the police station. When Officer Mele tried to speak with Sims alone about events involving Moses’s son, Moses intervened, ostensibly only to counsel and protect Sims from being interviewed before her own mother could arrive. After Moses ushered Sims out of the police station and into her car in the parking lot, Officer Mele arrested Sims for witness tampering. Moses brought suit, alleging unlawful arrest under the Fourth Amendment and malicious prosecution under state law. The court determined that Officer Mele was entitled to qualified immunity on the constitutional claim because a reasonable officer in his position could have believed that Moses’s actions were designed to cause Sims to withhold testimony. For similar reasons, the court held that Officer Mele was also entitled to official immunity on the state-law malicious prosecution claim. The court reasoned that even if official immunity contains a subjective component (unlike qualified immunity), there was no evidence that Officer Mele did not possess a belief in the lawfulness of his conduct. 21 pages. Judge Paul J. Barbadoro.

Seth Bader v. Commissioner, NH DOC
Case No. 11-cv-43-SM, Opinion No. 2012 DNH 076

Seth Bader, an inmate in the New Hampshire state prison system, claimed the State violated his rights under the Religious Land Use and Institutionalized Persons Act when it transferred him from Concord to Berlin, New Hampshire. Specifically, he asserted that because he did not have access to the same religious services in Berlin, the State had "imposed a substantial burden" upon his ability to practice his Jewish faith. The court disagreed, holding that any "burdens" upon Bader’s religious practices were not imposed by the State. Accordingly, it granted the State’s motion for summary judgment. 5 pages. Judge Steven J. McAuliffe.

Louis R. Chatel, Jr. v. Lieutenant James Carney et al.
Case No. 10-cv-576-PB, Opinion No. 2012 DNH 078

Defendants moved for summary judgment on plaintiff’s claim of a violation of his First Amendment rights and various state-law claims arising from plaintiff’s termination from the Weare Police Department. Plaintiff alleged that defendants retaliated against him for refusing to alter case reports he prepared as police prosecutor, and for attempting to alert the county attorney’s office of inaccuracies in those reports. The court granted defendants’ motion for summary judgment as to the First Amendment claim and declined to exercise supplemental jurisdiction over the state-law claims. In granting defendants’ motion on the First Amendment claim, the court held that no rational finder of fact could conclude that plaintiff was speaking as a citizen, rather than as a police prosecutor, during either instance of speech. 19 pages. Judge Paul J. Barbadoro.

James Laurent v. United States
Case No. 12-cv-19-SM, Opinion No. 2012 DNH 069

Petitioner was convicted of six counts of distributing crack cocaine and sentenced to 84 months in prison. Subsequently, that sentence was reduced to 68 months, pursuant to retroactively applicable amendments to the Sentencing Guidelines. He then sought habeas corpus relief, alleging that the government’s loss (or destruction) of videotape evidence entitled him to relief beyond that already afforded (i.e., dismissal of the charge to which the videotape related). He also asserted that the government introduced insufficient evidence at trial to support the jury’s verdict. After carefully reviewing the record and petitioner’s claims, the court denied his petition. 6 pages. Judge Steven J. McAuliffe.

Wilcox Industries Corp. v. Mark Hansen & Advanced Life Support Technologies, Inc.
Case No. 11-cv-551-PB, Opinion No. 2012 DNH 72

Wilcox, a New Hampshire corporation, sued the Virginia-based ALST and its president, Mark Hansen, for misappropriation of trade secrets, among other claims. ALST moved to dismiss the complaint for lack of personal jurisdiction, arguing that Hansen’s conduct in New Hampshire that gave rise to the suit was not attributable to ALST. Specifically, ALST argued that Wilcox entered into a consulting agreement with Hansen in his personal capacity and not as an agent of ALST. The court denied the motion. The fact that ALST submitted invoices to Wilcox for Hansen’s consulting services and that Wilcox made payments directly to ALST was sufficient to show that Hansen acted as ALST’s agent in providing those services. The court then reasoned that it had personal jurisdiction over ALST with respect to Wilcox’s misappropriation claim because (1) the claim was related to ALST’s contacts in New Hampshire; (2) ALST purposefully availed itself of the benefits of conducting business in the forum; and (3) the exercise of jurisdiction was reasonable. The court exercised pendent personal jurisdiction over the remaining claims against ALST. 19 pages. Judge Paul J. Barbadoro.

Securities and Exchange Commission v. New Futures Trading International Corp.
Civil No. 11-cv-532-JL, Opinion No. 2012 DNH 073

After the Securities and Exchange Commission brought an action against the defendants for their violations of the federal securities law, and the defendants were defaulted for failing to answer or otherwise defend, the SEC moved for the entry of a default judgment, including the imposition of money damages. The court entered the requested judgment, except insofar as it would have allowed the SEC to resort to contempt proceedings to enforce the damages award. 7 pages. Judge Joseph N. Laplante.

Debra Jean Couitt v. Michael J. Astrue, Commissioner of Social Security Administration
Case No. 11-cv-124-PB, Opinion No. 2012 DNH 066

Couitt sought judicial review of the ALJ’s decision that she was capable of doing light work despite her impairments due to back pain caused by degenerative disc disease. On review, the court concluded that the ALJ erred in giving little weight to the opinion of an occupational therapist as to the severity and functional effects of Couitt’s impairments. The ALJ also erred in evaluating Couitt’s residual functional capacity based on the raw medical data in the record and a misinterpretation of some of the record. Because the ALJ’s residual functional capacity assessment was not done properly, the vocational expert’s opinions, based on the residual functional capacity assessment, did not constitute substantial evidence to support the ALJ’s decision. The decision was reversed, and the case was remanded for additional administrative proceedings. 20 pages. Judge Paul J. Barbadoro.

Swanburg v. Michael J. Astrue, Commissioner, SSA
Case No. 11-cv-143-PB, Opinion No. 2012 DNH 71

Swanburg appealed the Commissioner’s denial of her application for disability insurance and supplemental security income benefits. After reviewing the record, the court concluded that the ALJ committed reversible errors in his assessment of Swanburg’s mental residual functional capacity. Specifically, the ALJ failed to adequately explain the limited weight he gave to the medical opinion of Swanburg’s treating provider, and failed to support his decision to give greater weight to the agency consultants’ opinions. As a result, the court granted Swanburg’s motion to reverse the Commissioner’s decision and remanded the case for further proceedings. 19 pages. Judge Paul J. Barbadoro.

Jason Defina v. Town of Hooksett, et al.
Case No. 10 cv 372 PB, Opinion No. 2012 DNH 070

The defendant police chief moved to dismiss plaintiff’s claims of wrongful termination and violation of his due process rights under 42 U.S.C. § 1983 arising from plaintiff’s termination from the Hooksett Police Department. Defendant argued that he did not have the statutory authority to terminate plaintiff or the responsibility or ability to provide him with a hearing prior to his termination. The court granted defendant’s motion, holding that R.S.A. § 105:C 4 provides that police commissioners, not the police chief, have the authority to terminate an officer and the responsibility to provide police personnel with a hearing prior to termination. The court further held that plaintiff could not maintain a wrongful termination claim against defendant because the defendant was not the plaintiff’s employer. 12 pages. Judge Paul J. Barbadoro.

Melissa Jenks, individually and as g/n/f of Roderick Jenks v. New Hampshire Motor Speedway, et al.
Case No. 09-cv-205-JD, Opinion. No. 2012 DNH 075

Roderick Jenks was injured when he fell from the back of a golf car at the Speedway. The golf car had been manufactured by Textron, Inc. and was leased to the Speedway by A.B.L., Inc. The plaintiff sought rulings from the court that a continuing duty to warn of a product defect was a cognizable theory under New Hampshire law and that evidence and a jury instruction on that claim would be allowed in this case. The New Hampshire Supreme Court has not addressed the viability of a product liability claim for a continuing duty to warn. The court reviewed New Hampshire law on product liability along with cases from other jurisdictions on the issue of a continuing duty to warn and predicted that the New Hampshire Supreme Court would recognize that claim as presented in the Restatement (Third) of Torts: Products Liability § 10. The court also concluded that evidence on the continuing duty to warn would be allowed at trial and that a jury instruction on that claim would be given if the claim goes to the jury. 17 pages. Judge Joseph A. DiClerico, Jr.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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