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Bar News - December 14, 2012


US District Court Decision Listing: November 2012

* Published

ATTORNEYS’ FEES
11/9/12
Foley, et al. v. Town of Lee, et al.
Case No. 10-cv-335-JL, Opinion No. 2012 DNH 187

Following the settlement of their claims under 42 U.S.C. § 1983 against a town and certain of its police officers, the plaintiffs sought attorneys’ fees and costs under 42 U.S.C. § 1988, as contemplated by the settlement. As contemplated by the settlement, the defendants objected to some of the fees and costs claimed. Resolving these objections, the court ruled that

(1) the plaintiffs could recover for fees their attorneys incurred in assessing and researching the case, and drafting a demand letter to the town, prior to drafting the complaint,

(2) the plaintiffs could not recover for fees they spent exclusively on pursuing their claim against a private citizen they had also named as a defendant, and (3) the plaintiffs could not recover for fees their attorneys spent in working with a designated expert witness whose testimony was ruled inadmissible. The court also ruled that $175 was a reasonable hourly rate for plaintiffs’ counsel, given that they each had fewer than 10 years experience and that the case was a garden-variety civil rights action. Finally, the court declined to make a downward adjustment in the fee award based on the fact that it had granted summary judgment for the defendants on many of the plaintiffs’ claims prior to the settlement, where that ruling did not affect the damages they could have recovered at trial, and the presence of the unsuccessful claims had not significantly increased the plaintiffs’ fees. 30 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS; § 1983
11/16/12
Cynthia Hudson v. Town of Weare, et al.
Case No. 11-cv-90-JL (decided from bench)

In this civil rights action against local law enforcement officials, the plaintiff alleged she had been stopped without reasonable suspicion, arrested and charged without probable cause, and subjected to excessive force in the form of two blood draws. 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. Ruling from the bench, the court granted the motion in part and denied it in part. The court held that there was a genuine dispute of material fact as to what the officer who stopped plaintiff had observed, creating a triable issue as to whether the officer had reasonable suspicion to conduct a traffic stop. The court therefore denied the motion as to the plaintiff’s 42 U.S.C. § 1983 claim for wrongful seizure and her corresponding state-law claim for false arrest. The court ruled, however, that the officer’s observations after the stop created probable cause for her arrest and prosecution, and therefore granted summary judgment to defendants on plaintiff’s § 1983 claim for wrongful arrest and prosecution and her corresponding state-law claim for malicious prosecution. In addition, because the plaintiff had not only consented to, but affirmatively requested, the blood draws, the court granted summary judgment to defendants on plaintiff’s § 1983 claim for excessive force and her state-law battery claim, noting that battery is an intentional tort. Finally, ruling that no reasonable factfinder could conclude that the defendants’ conduct was "atrocious and utterly intolerable in a civilized society," the court granted summary judgment to defendants on plaintiff’s state-law claim for intentional infliction of emotional distress. Judge Joseph N. Laplante.


CIVIL RIGHTS; DUE PROCESS
11/13/12
Tringali v. Mass. Dept of Transitional Assistance
Case No. 12-CV-124-PB, Opinion No. 2012 WL 5683236

Leisha Tringali sued several state agencies and a state employee for declaratory relief, injunctive relief, and damages. She claimed that the defendants violated her procedural due process rights by enforcing a child support order against her without providing notice or a hearing.. . The court found that the state agencies and the state employee acting in his official capacity were immune from claims for damages and other retrospective relief under the Eleventh Amendment, rejecting Tringali’s argument that the state waived Eleventh Amendment immunity by accepting federal funds under the Social Security Act. The court also found that all claims against the state employee in his official and individual capacities were barred because Tringali failed to show that he was a proximate cause of the constitutional violations she alleged or has the power to implement the relief she seeks. The court granted the defendants’ motion to dismiss. 13 pages. Judge Paul J. Barbadoro.


CIVIL RIGHTS; FOURTH AMENDMENT
11/20/12
Eric Taylor v. The City of Manchester, et al.
Case No. 11-cv-341-PB, Opinion No. 2012 DNH 193

Taylor alleged that the police officers involved in his arrest violated his civil rights and seriously injured him when they unlawfully seized, arrested, detained, and confined him. He asserted federal claims for false arrest, excessive force, malicious prosecution, and violation of his due process rights. He also presented state law claims for false imprisonment, malicious criminal prosecution, assault and battery, and negligence. The defendants moved for summary judgment on all counts. The Court denied defendants’ motion with respect to the federal false arrest and excessive force claims and the state claims for false imprisonment, malicious prosecution, and excessive force. Summary judgment was granted on all other counts. 33 pages. Judge Paul J. Barbadoro.


CONSTITUTIONAL LAW
11/14/12
B.K. v. New Hampshire Department of Health & Human Services
Case No. 09-cv-94-JL, Opinion No. 2012 DNH 194

The defendants, the director and several employees of the New Hampshire Department of Health and Human Services, moved for summary judgment on the plaintiff’s claims that, after he temporarily lost custody of his minor children, the defendants had violated his First Amendment right to free exercise by placing them with foster families who subjected the children to practices at odds with their religious upbringing. Granting the motion, the court ruled that the defendants were entitled to qualified immunity from these claims, which sought only monetary damages, because a parent’s right to accommodation of his religious beliefs while his children are in foster care is not clearly established. 16 pages. Judge Joseph N. Laplante.


CONSUMER FINANCIAL SERVICES; FORECLOSURE; NEGOTIABLE INSTRUMENTS
11/20/12
LeDoux v. JP Morgan Chase, N.A. et al.
Case No. 12-cv-260-JL, Opinion No. 2012 DNH 194

Defendants moved to dismiss the pro se plaintiff’s claims arising from the servicing and foreclosure of his mortgage loan. The court granted the motion in part and denied it in part. The court ruled that because Plaintiffs’ claim under the Fair Debt Collection Practices Act would not be dismissed, even though the communications on which the claim was premised did not explicitly demand payment of a debt, because those communications were made "in connection with" the collection of a debt. The court further ruled that where the defendant loan servicer allegedly responded to plaintiff’s Qualified Written Request by (a) stating, without providing any explanation, that requested information was unavailable; and (b) providing plaintiff with the telephone number of two departments that refused to assist him, plaintiff had stated a claim for relief under the Real Estate Settlement Procedures Act. The court also concluded that the plaintiff had alleged a plausible claim for relief under the New Hampshire Consumer Protection Act. Because, however, plaintiff lacked standing to challenge an apparent typographical error in the allonge to his mortgage note, the court dismissed his claim for injunctive relief against foreclosure. The court also dismissed plaintiff’s common-law fraud claim against his loan servicer, ruling that plaintiff had failed to comply with Fed. R. Civ. P. 9(b) by alleging specific facts that made it reasonable to believe the servicer knew its allegedly fraudulent statements were false. 30 Pages. Judge Joseph N. Laplante.


CONTRACTS
11/26/12
Jeffrey Osgood d/b/a JP’s Concrete v. George and Evelyn Kent,
Case No. 11-cv-477-SM, Opinion No. 2012 DNH 195

Concrete subcontractor sued owners of project, alleging that they unlawfully terminated the parties’ contract. Owners counter-claimed, alleging that subcontractor’s work failed to meet engineering specifications. The court denied the owners’ motion for summary judgment, concluding that genuinely disputed issues concerning the standards by which subcontractor’s work was to be measured precluded the entry of judgment as a matter of law. 8 pages. Judge Steven J. McAuliffe.


EMPLOYMENT (ADA)
11/26/12
Patricia Hughes v. Southern NH Services, Inc.
Case No. 11-cv-516-SM, Opinion No. 2012 DNH 196

Plaintiff sued her former employer under the Americans with Disabilities Act, alleging that she was unlawfully denied reasonable accommodations for her disability: type 1 diabetes. She also advanced numerous state statutory and common law claims for unlawful termination, discrimination, and intentional infliction of emotional distress. The court granted defendant’s motion for summary judgment on the federal claims, concluding that, as a matter of law, the employer reasonably accommodated plaintiff’s disability. It declined to exercise supplemental jurisdiction over plaintiff’s state law claims and remanded the case to state court. 21 pages. Judge Steven J. McAuliffe.


MORTGAGES, CONTRACTS
11/5/12
Cabacoff v. Wells Fargo Bank, N.A. et al.
Case. No. 12-CV-56-PB, Opinion No. 2012 WL 5392545

Robert Cabacoff sued several entities that own, service, or have some other connection to his residential mortgage. He brought claims against his loan servicer for breach of the Home Affordable Modification Program ("HAMP") contract between the servicer and Fannie Mae. The court concluded that Cabacoff had no right to sue as a third-party beneficiary of the contract and that there was no private right of action under the statute pursuant to which HAMP was created. Accordingly, the court dismissed Cabacoff’s contract claims. Cabacoff also attempted to challenge the securitization of his loan and the assignment of his mortgage. Those claims were dismissed because he failed to allege sufficient facts to support them. 20 pages. Judge Paul J. Barbadoro.


11/14/12
Linda M. Ruivo v. Wells Fargo Bank, N.A.
Case No. 11-cv-466-PB, Opinion No. 2012 DNH 191

Ruivo brought suit against Wells Fargo for making false and misleading statements concerning the terms of her loan and refusing to consider her request for a loan modification. She argued that Wells Fargo breached a loan servicer agreement between Wells Fargo and the Federal National Mortgage Association ("Fannie Mae") that requires Wells Fargo to follow loan modification guidelines established pursuant to the Home Affordable Mortgage Program ("HAMP"). Wells Fargo moved to dismiss all claims. The Court granted Wells Fargo’s motion to dismiss finding that Wells Fargo was under no common law obligation to modify the loan and that a borrower, such as Ruivo, cannot sue as a third-party beneficiary to enforce a loan servicer agreement. 15 pages. Judge Paul J. Barbadoro.

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