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.

Order with big business buying power.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - October 19, 2012

US District Court Decision Listing: September 2012

* Published

United States v. 100 Counterfeit CISCO GLC-SX-MM Computer Parts, et al.
Case No. 11-cv-543-JD, Opinion No. 2012 DNH 170

Packages containing computer parts sent from Hong Kong to Direct Wholesale International, Inc. were detained and searched at the Dover (New Hampshire) Post Office by an agent of Immigration and Customs Enforcement as part of an ongoing investigation of the importation of counterfeit computer parts. After the parts were determined to be counterfeit, they were seized by the United States, and a forfeiture action was initiated against them. Direct Wholesale filed a claim for the parts and moved to suppress the use of the parts as evidence in the forfeiture action on the ground that they were detained and searched in violation of the Fourth Amendment. The court denied the motion to suppress, concluding that the detention and search of the packages was lawful under 19 U.S.C. § 482. 14 pages. Judge Joseph A. DiClerico, Jr.

Bourne v. State of NH, et al.
Case No. 12-cv-251-PB, Opinion No. 2012 DNH 160

Plaintiff alleged fraud, negligence, and constitutional violations in an action filed against the justices and clerk of the New Hampshire Supreme Court. The court dismissed the complaint, finding that the Rooker-Feldman doctrine precluded the district court from reviewing the claims seeking the reversal of state court orders, that the Eleventh Amendment barred the claims against the State, that the justices and the court clerk were shielded from civil liability by the doctrine of absolute judicial immunity, and that the complaint failed to state a claim upon which relief could be granted. 12 pages. Judge Paul Barbadoro.

Dennis v. Town of Loudon, et al.
Case No. 11-cv-302-JL, Opinion No. 2012 DNH 165

In this civil rights action against state law enforcement officials, the plaintiff alleged that her federal constitutional rights had been violated when she was bitten by a state police dog and subsequently arrested. The defendants moved for summary judgment, arguing that they were entitled to (a) qualified immunity from plaintiff’s constitutional claims and (b) judgment as a matter of law on plaintiff’s state-law claims. The court granted the motions in part and denied them in part. The court held that because the dog attack was uncommanded and unintentional, it did not qualify as a "seizure" within the meaning of the Fourth Amendment, so defendants were entitled to summary judgment on plaintiff’s excessive force claim. Because the dog bite was unintentional, the court also granted summary judgment to defendants on plaintiff’s battery claim, noting that battery is an intentional tort. And, because there was no evidence of malice, the court granted summary judgment to defendants on plaintiff’s malicious prosecution claim. The court denied summary judgment as to plaintiff’s remaining claims, however, holding that there were genuine disputes of material fact as to what the officers observed, creating a triable issue as to whether the officers had probable cause to arrest plaintiff. The court also held that the defendants were not entitled to statutory immunity under N.H. Rev. Stat. Ann. § 508:18-a from plaintiff’s negligence and strict liability claims arising from the dog attack. In so doing, the court noted that the statutory immunity applied only to uses of force, and held that the use of a police dog strictly to track did not qualify as a use of force within the meaning of the statute. 28 pages. Chief Judge Joseph N. Laplante.

Pure Barnyard, Inc. v. Organic Laboratories, Inc. and Results Capital, Inc.
Case No. 08-cv-501-JL, Opinion No. 2012 DNH 171

The plaintiff, a seller of organic fertilizer products, sought a default judgment for more than $3 million against one of the defendants, claiming that its misrepresentations while negotiating an ultimately unsuccessful merger of the plaintiff and another company caused the plaintiffs’ business to fail. The defendant moved to strike the entry of default. The court denied the defendant’s motion, ruling that no good cause existed to lift the default because, among other things, the defendant had not made any serious effort to find an attorney to represent it until, literally, the eve of the damages hearing. After conducting that hearing, the court granted the plaintiff’s motion for a default judgment, but only in part. The court found that, while the plaintiff had shown that it lost sales (of one of its products to one of its customers in one season) in reliance on the defendant’s misrepresentations, the plaintiff had failed to show that those misrepresentations, or the sales lost a result, caused the whole business to fail. 30 pages. Chief Judge Joseph N. Laplante.

Dartmouth-Hitchcock Clinic, et al. v. Commissioner of the NH DHHS
Case No. 11-cv-358-SM, Opinion No. 2012 DNH 169

The State moved to dismiss plaintiffs’ claims challenging the State’s recently enacted reductions to Medicaid reimbursement rates. Plaintiffs assert that those rate reductions were enacted pursuant to state statutes that they say are preempted, under the Supremacy Clause, by provisions of the Medicaid Act. The State, on the other hand, claims such a cause of action was foreclosed by the Supreme Court’s recent decision in Douglas v. Independent Living Ctr. The court denied the State’s motion, without prejudice. And, acknowledging the doctrine of primary jurisdiction, the court solicited the input of the Secretary of Health and Human Services on several (potentially dispositive) issues raised by plaintiffs’ complaint that appear to be the subject of the Secretary’s ongoing investigation into the State’s reimbursement rate reductions. 14 pages. Judge Steven J. McAuliffe.

United States v. Anthony Silva
Case No. 11-cr-176-1-SM, Opinion No. 2012 DNH 164

Defendant moved to suppress evidence he claimed was obtained from an unconstitutional search and seizure of his person and automobile. Following an evidentiary hearing, the court concluded that police had an adequate basis to question defendant in the context of a Terry stop, request his identification, and then arrest him on an outstanding warrant. As to the search of defendant’s vehicle (which was done pursuant to a warrant), that, too, was conducted in a manner consistent with constitutional requirements. 14 pages. Judge Steven J. McAuliffe.

Conservation Law Foundation v. Public Service of New Hampshire
Case No. 11-cv-353-JL, Opinion No. 2012 DNH 174

The defendant moved to dismiss this citizen suit brought pursuant to the federal Clean Air Act, arguing that the organizational plaintiff did not have standing to assert its claims because it had not sufficiently pleaded that any of its members suffered an injury due to the defendant’s alleged violations. The defendant also argued that because the alleged wrongful conduct that served as the basis for some of the counts of the complaint had ceased before the action was filed, any injury from that conduct was not redressable by the court. The court granted the motion in part and denied it in part. The court held that the plaintiff’s allegations of injury due to air pollution, as supported by affidavits and other documents, were sufficient to withstand a motion to dismiss. (The court noted, however, that because the disputed facts bearing on standing were central to the merits of the case, it could not resolve this dispute prior to trial, and stated that it would revisit the plaintiff’s standing again in the future.) The court also held, however, that the plaintiff had not demonstrated that the injuries from some of the defendant’s alleged conduct were redressable, where the defendant had ceased that conduct before the action was filed, disassembled the equipment at issue, and stated an intention not to resume that conduct in the future. 31 pages. Chief Judge Joseph N. Laplante.

Susan Fifield v. HM Life Insurance Company et al.
Case No. 11-cv-201-JL, Opinion No. 2012 DNH 176

The plaintiff and the defendants moved for judgment on the administrative record on the plaintiff’s claim under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq., arising out of the defendants’ decision to terminate the plaintiff’s long-term disability benefits. The plaintiff claimed that the administrative record established that she was disabled from performing her job as a customer service representative. The defendants argued that their decision to terminate the plaintiff’s benefits should be given deferential review, and that the decision was reasoned and supported by substantial evidence, and should be upheld. The court granted the plaintiff’s motion and denied the defendants’ motion. The court held that the disability plan contained language clearly granting the defendants with discretionary authority to determine eligibility for benefits and, therefore, the decision must be upheld unless it was arbitrary and capricious. The court further held, however, that the decision was arbitrary and capricious. Specifically, the decision to terminate the plaintiff’s benefits as of a certain date, based on the same medical records upon which the defendants authorized benefits for the period prior to that date, was not supported by the record evidence, and the defendants did not offer any explanation for how the same records could produce opposite decisions. 23 pages. Chief 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 157

Animal hospital brought suit against its suppliers of veterinary diagnostic services and equipment support services, alleging, among other things, breach of contract. Defendant brought counterclaims for breach of contract. Plaintiff filed motions for summary judgment on counterclaims several months before the scheduled close of discovery, and before either party had taken depositions. Defendant filed a motion under Fed. R. Civ. P. 56(d) asking the court to defer ruling on the summary judgment motions until after the close of discovery. The court granted defendant’s motion, finding that defendant had been diligent in the discovery process, and that the evidence defendant expected to develop through the depositions of plaintiff’s principals would be material to its defense against the summary judgment motions. 4 pages. Judge Steven J. McAuliffe.

Bourne v. State of NH, et al.
Case No. 12-cv-251-PB, Opinion No. 2012 DNH 158

In an action filed against defendants including the justices of the New Hampshire Supreme Court, plaintiff filed a motion to disqualify all federal district judges and the magistrate judge, and to transfer the action to another federal district court. The court denied the motion, specifically finding that: the motion to disqualify was not ripe as to judges not assigned to the case; rulings issued by the presiding judge in a prior case filed by the same plaintiff did not provide a ground for disqualification in a subsequent case; and the judge’s past State employment was unrelated to the case at bar and too remote in time to generate any reasonable question as to the court’s impartiality. The motion to change venue, which had been premised on the court’s disqualification, was denied as recusal of the presiding judge was not required. 7 pages. Judge Paul Barbadoro.

Monica Towne v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-434-SM, Opinion No. 2012 DNH 161

Claimant appealed the denial of her application for Social Security Disability Insurance Benefits. The court denied claimant’s motion to reverse the decision of the Commissioner, and granted the Commissioner’s motion to affirm. The court held that substantial evidence supported the ALJ’s (1) assessment of the medical evidence; (2) assessment of claimant’s credibility; and (3) determination that claimant could perform her past relevant work. 17 pages. Judge Steven J. McAuliffe.

Morris v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-248-JL, Opinion No. 2012 DNH 175

The claimant appealed the denial of disability benefits, arguing that the administrative law judge failed to assign the appropriate weight to certain evidence. The Commissioner moved for an order affirming the ALJ’s decision. The court granted the claimant’s motion and denied the Commissioner’s motion. The court ruled that the ALJ relied upon inadequate reasons for discounting the opinion of the claimant’s treating physician, and remanded to the ALJ for further development of the administrative record. The court also ruled, however, that the ALJ had not (a) failed to account for the minimizing effect that the claimant’s incarceration had on his condition, or (b) erred in affording "little weight" to a disability determination by a state agency. 30 pages. Chief Judge Joseph N. Laplante.

Debra Ann Chapin v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-286-JL, Opinion No. 2012 DNH 177

The plaintiff appealed the denial of her application for Social Security Disability Insurance benefits by an Administrative Law Judge, arguing that he had erroneously given little weight to the opinions of her providers, including one of her treating psychiatrists, and great weight to the opinion of a state examiner who never saw her, but rendered an opinion based on her medical records. Affirming the ALJ’s decision, the court ruled that the ALJ supportably found that (1) the providers’ opinions that the plaintiff was unable to work and had several moderate limitations were inconsistent with other substantial record evidence, including the normal results of several mental status exams and the fact that the plaintiff had been regularly working as her neighbor’s unpaid babysitter for more than a year, and (2) because the state examiner’s opinions were more consistent with these facts than the opinions of another provider who had never treated the plaintiff, but examined her at her lawyer’s suggestion, the ALJ supportably credited the state examiner’s opinions instead. 15 pages. Chief Judge Joseph N. Laplante.

Industrial Communications & Electronics, Inc. et al. v. Town of Alton
Case No. 07-cv-82-JL, Opinion No. 2012 DNH 168

The plaintiffs, providers of wireless services, brought a claim against the Town of Alton under § 704(a) of the Telecommunications Act of 1996, claiming that its refusal to allow them to construct a proposed wireless tower was an effective prohibition on the provision of wireless services in violation of the Act. At trial, the claim was defended by a married couple who own property abutting the site, and who had intervened in the case, rather than by the Town. Following the trial, the court found and ruled that the Town’s refusal to allow the tower amounted to a violation of the Act. In reaching this conclusion, the court rejected the abutters’ arguments that

(1) the acquisition of one of the plaintiff providers by another provider during the pendency of the litigation, but after the denial, meant that the plaintiff could not show a coverage gap without accounting for the coverage by the acquiring provider, (2) a three-tower solution, which had never been proposed during the lengthy process before the Town boards, was a feasible alternative to the plaintiffs’ single proposed tower, and (3) the plaintiffs could not prevail on their claim because they had not proposed lower heights during the process. 85 pages. Chief Judge Joseph N. Laplante.

Brian Bluestein v. Marc Levenson
Case No. 12-cv-021-JL, Opinion No. 2012 DNH 172

The plaintiff, a disabled veteran, brought a pro se action against a local director of the Department of Veterans Affairs, seeking an injunction preventing the plaintiff’s discharge from a joint program of the VA and the Department of Housing and Urban Development, through which the plaintiff received a housing voucher. The defendant moved to dismiss, arguing that this court lacked jurisdiction under a federal statute immunizing most of the VA’s decisions on veterans’ benefits from judicial review, except on appeals to specially designated courts. See 38 U.S.C. § 511(a). The court agreed, ruling that this bar to judicial review applied despite the plaintiff’s allegations that the VA’s actions in threatening to terminate his benefits violated the Constitution or other federal statutes. 8 pages. Chief Judge Joseph N. Laplante.

Your New Hampshire resource for professional investigative services since 2005.

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