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Bar News - June 15, 2012

US District Court Decision Listing - May 2012

* Published

Levy v. Lique et al.
Case No. 10-cv-374-PB, Opinion No. 2012 DNH 80

Sheila Levy sued Lique, a former officer of the Lebanon Police Department, alleging that he used excessive force in the course of her arrest. She also asserted supervisory liability claims against the Police Chief and the City of Lebanon. Levy claimed that Lique beat and tasered her in the back of his cruiser without a provocation. Lique denied Levy’s version of the events and instead argued that he placed her into protective custody because he reasonably suspected that she was mentally ill and had probable cause to believe that she was a danger to herself or others. All parties moved for summary judgment. The Court reasoned that regardless of whether Lique had probable cause to place Levy into protective custody, she could succeed on her excessive force claim only if the amount of force that Lique used was more than would have been justified if the arrest had been lawful. Because a jury could find that Lique’s use of force to arrest Levy was no more than necessary to overcome her resistance, the Court denied Levy’s motion for summary judgment. Lique based his motion for summary judgment on the premise that Levy’s evidence should be disregarded as unreliable due to her mental illness and the motion decided based on his evidence. Because the credibility of Levy’s evidence was an issue of fact for the jury, the Court denied Lique’s motion as well. The Court, however, granted the Chief and the City’s motion because Levy presented no evidence that either was deliberately indifferent to proper police training on the use of force or should have known of a risk of Lique’s incompetence in the area. 23 pages. Judge Paul J. Barbadoro.

Robin Foley et al. v. Town of Lee et al.
Civil No. 10-cv-335-JL, Opinion No. 2012 DNH 081

The defendants, a municipality and several of its police officers, moved for summary judgment on the plaintiffs’ claims arising out of the officers’ threats to arrest the plaintiffs for trespassing if they did not vacate a camper they had agreed to purchase from a third party. The court ruled that, regardless of whether the plaintiffs had any right to occupy the camper under their agreement with the seller, the defendant officers who had threatened them with arrest were not entitled to summary judgment on the plaintiffs’ claim, brought under 42 U.S.C. § 1983, that they had deprived them of their interest in the camper without due process, i.e., notice and a hearing. The court ruled that the defendants were entitled to summary judgment, however, on the plaintiffs’ claims (1) against the defendant officers for violating the plaintiffs’ substantive due process rights, because the officers’ actions did not shock the conscience, (2) against the Town and the police department under § 1983, because there was no evidence that the officers acted pursuant to a municipal policy, custom, or practice, (3) against the Town and the police department under state law, because those defendants were entitled to municipal immunity, and (4) against the officers under the common-law theories of intentional infliction of emotional distress and trespass to chattels, because those defendants were entitled to official immunity from those claims, given the absence of evidence that they acted wantonly or maliciously in committing those torts (even if they did so). 39 pages. Judge Joseph N. Laplante.

Animal Hospital of Nashua, Inc. v. Antech Diagnostics and Sound-Eklin
Case No. 11-cv-448-SM, Opinion No. 2012 DNH 087

Animal hospital brought suit against its suppliers of veterinary diagnostic services and equipment support services, alleging breach of contract, breach of covenant of good faith and fair dealing, negligence, negligent misrepresentation, fraud, unjust enrichment, and violation of New Hampshire’s Consumer Protection Act. The court granted in part and denied in part defendants’ motion for judgment on the pleadings. The court concluded that all tort claims were barred by the economic loss doctrine and plaintiff had failed to state a claim under the Consumer Protection Act. Motion was denied as to the unjust enrichment claim. 18 pages. Judge Steven J. McAuliffe.

Beth St. Hilaire v. Morgan Stanley Smith Barney, LLC
Case No. 10-cv-475-SM, Opinion No. 2012 DNH 084

Plaintiff brought suit against her former employer, alleging that she was discharged in violation of the Americans with Disabilities Act because of her association with a disabled person (her husband). She also claimed that her employer preemptively (and unlawfully) terminated her employment before she became eligible to invoke the leave provisions of the Family Medical Leave Act. The court granted defendant’s motion for summary judgment, concluding that it articulated a plausible and non-discriminatory reason for firing plaintiff (her well-documented poor job performance) and plaintiff failed to point to evidence suggesting that the stated reason was merely a pretext for unlawful discrimination. 29 pages. Judge Steven J. McAuliffe.

Kenneth Colassi v. The Hartford Life & Accident Insurance Company, et al.
Civil No. 10-cv-562-PB, Opinion No. 2012 DNH 086

Kenneth Colassi, a former participant in the BAE Systems Funded Welfare Benefit Plan ("Plan"), brought a pro se ERISA action against the Plan Administrator, seeking to recover short-term disability benefits allegedly owed him. The court granted summary judgment for defendants, holding that Colassi could not overturn the Administrator’s decision by impugning the completeness or veracity of the record because he had alleged no procedural defect in the Administrator’s decision-making process. The court also determined that the Administrator’s decision denying Colassi benefits was supported by substantial record evidence. On Colassi’s assertion that the court should address his claim for long-term disability benefits in addition to his claim for short-term benefits, the court held that the record did not establish that Colassi had exhausted his administrative remedies for long-term benefits. 21 pages. Judge Paul J. Barbadoro.

Robin Foley et al. v. Town of Lee et al.
Civil No. 10-cv-335-JL, Opinion No. 2012 DNH 082*

The parties to an action arising out of the defendant police officers’ threats to arrest the plaintiffs for trespassing if they did not vacate a camper they had agreed to purchase from a third party moved in limine to exclude particular evidence from the upcoming trial. The court ruled that: (1) the plaintiffs could not present "expert" testimony from an attorney that the police had acted beyond their legal authority, because that would amount to a witness instructing the jury on applicable legal principles, (2) the defendants could not present evidence of a small claims action the plaintiffs had filed against the owner of the campground where the camper had been located because, while the action had ended in a judgment for the owner, the judgment was unaccompanied by any explanation or rulings, so it had no collateral estoppel effect against the plaintiffs, and was otherwise irrelevant, (3) the defendants could not present records of the bank account on which the plaintiffs had written a check they gave the camper’s owner as payment in order to impeach the plaintiffs’ prior statements that the account contained sufficient funds to cover the check, because that would amount to the use of extrinsic evidence to impeach on a matter that was collateral to the plaintiffs’ claim against the defendant police officers, but (4) the defendants could present evidence of one of the plaintiff’s prior convictions for issuing a bad check under N.H. Rev. Stat. Ann. § 638:4, because that crime requires proof of a dishonest act, making evidence of the conviction admissible to impeach the plaintiff as a witness under F.R.E. 609(a)(2). 16 pages. Judge Joseph N. Laplante.

Sensor Systems Support, Inc. v. FAA
Case No. 10-cv-262-PB, Opinion No. 2012 DNH 83

The FAA sought summary judgment with respect to Sensor Systems’ claim that the agency wrongfully withheld from disclosure twenty-six pages of redacted correspondence responsive to Sensor Systems’ request under the Freedom of Information Act ("FOIA"). The FAA defended its decision to withhold the redacted information by invoking the deliberative process privilege and the attorney-client privilege, both protected under FOIA Exemption 5. The Court reviewed the FAA’s supplemental Vaughn index and supporting affidavit explaining the reasons for each withholding and determined that the agency had met its burden of proving that the information in all but one document was privileged. The FAA was instructed to produce that document for in camera review. 15 pages. Judge Paul J. Barbadoro.

SignalQuest v. Chou, et al.
Civil No. 11-cv-392-JL, Opinion No. 2012 DNH 090

The defendants, citizens of Taiwan upon whom the clerk of the federal court served the summons and complaint under Federal Rule of Civil Procedure 4(f)(2)(C)(ii), moved to dismiss for insufficient service of process. The defendants noted that Rule 4(f)(2)© does not allow for service on foreign defendants in a manner "prohibited by the foreign country’s law," and argued that service by the clerk of the federal court was improper because the Taiwanese laws governing service of process did not prescribe that method of service. The court held that Rule 4(f)(2)© only precludes service using a method expressly proscribed by foreign law, and does not require service using a method expressly prescribed by that law. Because it was undisputed that Taiwanese law did not expressly proscribe service as set forth in Rule 4(f)(2)(C)(ii), the court denied the motion. 14 pages. Judge Joseph N. Laplante.

Andrew T. Fawcett v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-253-SM, Opinion No. 2012 DNH 085

Claimant appealed the denial of his application for children’s disability benefits, asserting that the administrative law judge erred in concluding that his impairment did not meet, medically equal, or functionally equal a listed impairment. Because the ALJ’s decision was supported by substantial evidence in the record, it was affirmed. 20 pages. Judge Steven J. McAuliffe.

Christopher A. Chasse v. Michael J. Astrue, Commissioner, Social SecurityAdministration
Case No. 11-cv-260-SM, Opinion No. 2012 DNH 088

Claimant appealed the denial of his application for Social Security Disability Insurance Benefits. The Commissioner filed an assented-to motion to remand the case for a de novo administrative hearing because he could not locate the administrative case file. The court granted the motion and closed the case. The Commissioner thereafter filed a motion to vacate the remand order because the file had been located. The court denied the motion, concluding that the Commissioner had not shown neither excusable mistake nor sufficient equitable grounds under Fed. R. Civ. P. 60(b) for vacating the remand order. 6 pages. Judge Steven J. McAuliffe.

Rakip v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-323-SM, Opinion No. 2012 DNH 093

Claimant appealed the denial of her applications for Social Security Disability Insurance Benefits and Supplemental Security Income Benefits, asserting that the administrative law judge: (1) failed to give proper weight to the opinions of her mental health counselor; (2) failed to properly assess her subjective complaints of disabling symptoms; and (3) inadequately supported his residual functional capacity assessment. Because each of the challenged decisions by the ALJ was adequately explained and supported by substantial evidence in the record, the administrative determination was affirmed. 18 pages. Judge Steven J. McAuliffe.

Jonathan & Carol Shafmaster v. United States of America
Civil No. 09-cv-238-PB, Opinion No. 2012 DNH 091

The government sought summary judgment with respect to the Shafmasters’ claims for a refund of a failure-to-pay penalty under 26 U.S.C. § 6651(a)(3). The dispositive issue was whether a Notice of Tax Lien that was sent to the Shafmasters satisfied the notice-and-demand requirement that is a prerequisite for the imposition of the penalty. The court held that the document sufficiently demanded payment of the outstanding debt, was not invalidated by lateness, and contained no material inaccuracies that would render it unable to suffice as notice and demand. Finding the Shafmasters’ contrary arguments without merit, the court granted summary judgment for the government. 16 pages. Judge Paul J. Barbadoro.

Wilcox Industries Corp. v. Mark Hansen & Advanced Life Support Technologies, Inc.
Case No. 11-cv-551-PB, Opinion No. 2012 DNH 92

Wilcox, a manufacturer of military equipment, sued ALST and its president, Mark Hansen, for capitalizing on the know-how they acquired while working with Wilcox. Defendants moved to dismiss all claims for failure to state a claim upon which relief may be granted. The Court granted the motion with respect to the New Hampshire Consumer Protection Act claim, breach of fiduciary duty claim, and unjust enrichment claim because they were preempted by the New Hampshire Uniform Trade Secrets Act ("NHUTSA"), as each claim relied exclusively on allegations of misappropriation. The Court also dismissed the claim for breach of implied covenant of good faith and fair dealing because Wilcox failed to allege that the agreements at issue had vested Hansen with discretion in performance or that he had exercised such discretion in a manner that denied Wilcox an essential benefit of the bargain. The Court determined that Wilcox’s NHUTSA claim, breach of contract claim, intentional interference with prospective contractual relations claim, and common law unfair competition claim were sufficiently pled. 35 pages. Judge Paul J. Barbadoro.

Martha Schoendorf v. RTH Mechanical Contractors, Inc.
Civil No. 11-cv-566-JL, Opinion No. 2012 DNH 094

The plaintiff to an action claiming sex discrimination and retaliation against her former employer, a New Hampshire-based company, moved to transfer the case to the District Court in Maine--her home state--under 28 U.S.C. § 1404(a). Granting the motion, the court ruled that (1) it would not require the plaintiff to show "changed circumstances" since she originally filed the case in order to transfer it, particularly since she had commenced the case just three months before she sought the transfer and (2) the convenience of the parties and witnesses and the interests of justice weighed in favor of transferring the case to Maine because (a) all of the identified third-party witnesses lived within the subpoena power of the federal courthouse there, but not the federal courthouse in New Hampshire, (b) Maine was where all of the events underlying the case had occurred, and © the transfer would occasion no real prejudice to the defendant, while leaving the case in New Hampshire would occasion additional expense to the plaintiff. 17 pages. Judge Joseph N. Laplante.

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