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Bar News - February 22, 2013


US District Court Decision Listing: January 2013

* Published

CONTRACTS; UNIFORM COMMERCIAL CODE
1/15/13
Expedition Leather v. FC Organizational Products
Civil No. 11-cv-588-JL, Opinion No. 2013 DNH 005

The defendant in this contract dispute moved to dismiss, alleging that a forum selection clause bound the plaintiff to litigate its claims in a Utah state or federal court. Perceiving factual disputes as to whether the parties had agreed to the forum selection clause, the court denied the motion, but, with the parties’ consent, undertook to resolve those disputes before the parties litigated the merits of the case. The court concluded that the plaintiff had not agreed to be bound by the clause where the defendant’s predecessor-in-interest had sent the plaintiff a single, unilateral communication attaching the clause, which then went unanswered, unacknowledged, and unmentioned for over two years. The court therefore declined to dismiss the case. 14 Pages. Judge Joseph N. Laplante.


CRIMINAL LAW; SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA)
1/9/13
United States of America v. Brian Mahoney
Criminal No. 11-cr-06-JL, Opinion No. 2013 DNH 004

The defendant moved to dismiss the indictment against him, arguing that it failed to allege a violation of the Sex Offender Registration and Notification Act ("SORNA") by traveling in interstate commerce without notifying the appropriate authorities of his change in address. The defendant argued that, at the time he traveled, the Attorney General had yet to properly exercise his rulemaking authority, granted by SORNA, to extend its registration requirements to those convicted of sex offenses before SORNA’s effective date. The court disagreed, ruling that the Attorney General had done so via so-called "SMART Guidelines," which took effect prior to the defendant’s alleged interstate travel and complied with the requirements of the Administrative Procedure Act. 16 pages. Judge Joseph N. Laplante.


ENVIRONMENTAL LAW
4/13/11
Dunellen, LLC et al. v. Power Test Realty Co. Ltd. Partnership et al.
Rhode Island Civil No. 09-cv-211-JL, Opinion No. 2013 DNH 001

After the plaintiffs sued the owners of adjacent properties, arguing that petroleum from those properties had contaminated the plaintiffs’ groundwater, the adjacent property owners brought third-party claims against their tenant at the properties, seeking indemnification under both common-law and the parties’ written lease. The plaintiffs then brought their common-law claims against the tenant, seeking to recover for the contamination. It was undisputed, however, that the tenant did not cause the contamination, which predated the tenancy, and, indeed, a state administrative agency had ruled, after a full evidentiary hearing, that remediating the contamination was the landlord’s responsibility, rather than the tenant’s. Accordingly, the tenant moved for summary judgment against both the defendants’ third-party claims and the plaintiffs’ claims. Granting the motions, the court ruled that (1) the agency’s ruling collaterally estopped the defendants from seeking to shift the responsibility for remediating the contamination to the tenant, (2) in any event, the parties’ lease did not require the tenant to indemnify the defendants against the plaintiffs’ claims, because they arose out if environmental violations on the premises that pre-existed the tenancy, and (3) Rhode Island law would not recognize the plaintiffs’ theory that, simply because the contamination was discovered during the tenancy, the tenant is liable to the plaintiffs for failing to remediate it, even though the contamination pre-dated the tenancy and the tenant never controlled any instrumentality that caused it. 54 pages. Judge Joseph N. Laplante.


HABEAS CORPUS
1/28/13
Viggens Guerrier v. United States of America
Case No. 12-cv-153-SM, Opinion No. 2013 DNH 011

Petitioner sought habeas corpus relief pursuant to 28 U.S.C. § 2255, asserting that trial counsel provided ineffective assistance by failing to move for dismissal of petitioner’s federal indictment on grounds that his rights under the anti-shuttling provision of the Interstate Agreement on Detainers Act ("IADA") were violated. Specifically, petitioner said he was impermissibly "shuttled" between state and federal custody on several occasions. The court denied the petition, holding that although petitioner was in state custody (pending resolution of a parole violation charge), he was not serving an "incarcerative sentence" at any time relevant to his claim. Consequently, the anti-shuttling provisions of the IADA did not apply. 4 pages. Judge Steven J. McAuliffe.


HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
1/28/13
Yaman v. Yaman
Case. No. 12-CV-221-PB, Opinion No. 2013 DNH 009

Ismail Ozgur Yaman filed a petition under the Hague Convention seeking the return of his two children who were wrongfully abducted from Turkey to the United States by their mother and Mr. Yaman’s ex-wife, Linda Yaman, in violation of a Turkish custody decision granting Dr. Yaman sole custody. Ms. Yaman responded by arguing, among other things, that the children should not be returned to Turkey because they are "now settled" in New Hampshire. A now-settled defense is viable only if the person seeking the return order failed to file a return petition within a year of the date on which the children were wrongfully removed. Dr. Yaman conceded that he did not file his petition within the one-year filing period, but he argued that the filing period should be equitably tolled because Ms. Yaman made it impossible for him to file his petition earlier by concealing the children’s whereabouts. After construing the treaty in light of its text and drafting history and considering Executive Branch pronouncements on the issue as well as other judicial interpretations of the Article 12 now-settled defense, the court held that concealment does not equitably toll the Hague Convention’s one-year filing period. 23 pages. Judge Paul J. Barbadoro.


MEDIATION
1/18/13
Hong Kong Juno International Co., Ltd. v. Advanced RenewableEnergy Co., LLC
Case No. 12-cv-232-SM, Opinion No. 2013 DNH 008

Plaintiff filed suit seeking an order compelling defendant to arbitrate various disputes between the parties, as required by their contract. The court held that the parties’ disputes were subject to the arbitration provision. It also held that plaintiff did not waive its right to invoke the arbitration provision simply because it sought alternative relief in this case (i.e., in the event the court denied its request for order to compel). 8 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY
1/15/13
Tracy A. Agrusso v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-519-PB, Opinion No. 2013 DNH 006

Agrusso moved to reverse or remand the Commissioner’s decision to deny her application for social security benefits, arguing that the ALJ failed to properly evaluate expert medical evidence. Specifically, Agrusso argues that the ALJ should have given more weight to the opinions of her treating source providers. After reviewing the record, the court denied Agrusso’s motion. The ALJ provided good reasons for discounting the opinions of Agrusso’s treating source providers. 27 pages. Judge Paul J. Barbadoro.


1/15/13
Steven R. Crandlemere v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-529-SM, Opinion No. 2013 DNH 007

Claimant appealed the decision of the Commissioner denying his application for Social Security benefits. The court remanded the matter for further proceedings, concluding that the ALJ erred at step three of the sequential analysis. Specifically, the ALJ did not adequately support his conclusion that claimant’s impairment did not meet or equal a listed impairment. Consequently, the court was unable to conclude that the ALJ’s decision was supported by substantial evidence. 16 pages. Judge Steven J. McAuliffe.


1/28/13
Jose Hernandez Corchado v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 12-cv-52-SM, Opinion No. 2013 DNH 010

Claimant appealed the denial of his application for disability benefits, asserting that the administrative law judge erred in several respects. The court remanded the matter, concluding that the ALJ erred at step three of the sequential analysis when he failed to provide an adequate explanation for his finding that claimant’s soft tissue injuries did not meet the relevant listing. 19 pages. Judge Steven J. McAuliffe.


1/30/13
Rhonda Mason v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 12-cv-17-SM, Opinion No. 2013 DNH 013

Claimant moved the court to reverse the Commissioner’s denial of her application for disability and supplemental security income benefits. The court denied that motion, concluding that the ALJ’s credibility determination, his decision to discount the opinions of some of claimant’s treating physicians, and his assessment of claimant’s residual functional capacity were all supported by substantial evidence. 18 pages. Judge Steven J. McAuliffe.


TITLE INSURANCE COVERAGE
1/31/13
Deutsche Bank National Trust Company v. Stewart Title Guaranty Company
Case No. 12-cv-106-JD, Opinion No. 2013 DNH 014

Deutsche Bank filed a declaratory judgment action to require Stewart Title Guaranty to provide coverage under its title insurance policy for a quiet title action against Deutsche Bank. Stewart Title sought judgment on the pleadings, asserting that Exclusion 3(a), which bars coverage for an insured’s liability due to defects that were created, suffered, assumed, or agreed to by the insured, barred coverage. Deutsche Bank contended that it did not create, suffer, assume or agree to the title defect at issue, in which the conveyance and mortgage documents described the wrong property, although it now agreed that the documents were wrong due to the mistake of the title company. The court denied the motion, concluding that Exclusion 3(a) requires intentional misconduct by the insured and that the mistake in the pertinent documents did not fall within Exclusion 3(a). 12 pages. Judge Joseph A. DiClerico, Jr.

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