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Bar News - March 22, 2013


US District Court Decision Listing: February 2013

* Published

ATTORNEY’S FEES
2/5/13
Care Realty, LLC, et al. v. Lakeview Neurorehabilitation Center, Inc., et al.
Case No. 10-cv-95-SM, Opinion No. 2013 DNH 016

After the court resolved the parties’ protracted commercial litigation in favor of defendants, defendants moved for an award of attorneys fees. Invoking New Hampshire’s common law exception to the American Rule on fee shifting, defendants asserted that they were entitled to an award of fees because plaintiffs’ claims were "meritless." The court denied the motion, noting that defendants had conflated two distinct concepts: "meritlessness" and "bad faith," and pointing out that the mere fact that a claim lacks merit does not compel the conclusion that it was advanced in bad faith. 8 pages. Judge Steven J. McAuliffe.


ENVIRONMENTAL ISSUES
2/15/13
United States v. City of Portsmouth
Case No. 09-cv-283-PB, Opinion No. 2013 DNH 021

The United States filed a motion to modify a consent decree that addresses the City of Portsmouth’s failure to abide by the Clean Water Act and the New Hampshire Water Pollution and Waste Disposal Act. The parties to the consent decree agreed to the proposed modification but the Conservation Law Foundation ("CLF"), a non-party, intervened and filed an objection. CLF did not object to either of the two main provisions of the consent decree, but instead argued that Portsmouth’s past failure to comply requires the court to more closely monitor the EPA’s management of the consent decree. Finding this reason insufficient to require such oversight at this time, the court denied CLF’s motion and approved the parties’ proposed consent decree modification. 16 pages. Judge Paul J. Barbadoro.


INSURANCE
2/27/13
Ann & Richard Lessard v. Vermont Mutual Insurance Co.
Case No. 12-cv-236-SM, Opinion No. 2013 DNH 026

Plaintiffs brought suit against their insurance carrier, asserting that it wrongfully denied their claim under a personal liability umbrella policy. They advanced two claims: breach of contract and breach of the implied covenant of good faith and fair dealing. The insurer moved to dismiss the latter, for failure to state a viable cause of action. The court granted that motion, concluding that plaintiffs’ complaint did not describe any one of the three situations in which New Hampshire’s common law recognizes that the implied covenant of good faith is implicated. 8 pages. Judge Steven J. McAuliffe.


PERSONAL INJURY
2/22/13
Wayne J. Jewell v. United States of America
Case No. 11-cv-324-SM, Opinion No. 2013 DNH 024

Pro se plaintiff brought this Federal Tort Claims Act claim against medical care providers at the Veterans Administration, asserting that he had been the victim of medical malpractice. After plaintiff failed (repeatedly) to disclose (or even obtain) an expert medical witness to support his claims, defendants moved for summary judgment. The court granted that motion, concluding that because plaintiff had no expert medical witness, and because such a witness is required by state law in medical malpractice cases, there was no genuine dispute on a central issue to plaintiff’s case: whether defendants’ failed to meet the relevant standard of reasonable care. And, absent such a genuine factual dispute, defendants were entitled to judgment as a matter of law. 9 pages. Judge Steven J. McAuliffe.


PERSONAL JURISDICTION
2/5/13
Coupe v. Caine & Weiner Co., Inc.
Case No. 11-cv-282-PB, Opinion No. 2013 DNH 015

Caine & Weinger Co., Inc. ("Caine") filed a motion to dismiss alleging that the court lacks personal jurisdiction over the defendant. Coupe claimed the court has personal jurisdiction based on the defendant’s contacts with the state, which were: defendant’s residency in New Hampshire, plaintiff’s mailing of a collection letter to the defendant in New Hampshire, and defendant’s partnership with a former defendant who defrauded Coupe in New Hampshire. The court concluded that these contacts were insufficient to satisfy the requirements of specific personal jurisdiction under New Hampshire’s long-arm statute or the due process requirements of the Fourteenth Amendment. Because Coupe failed to make a prima facie showing of personal jurisdiction over Caine, the court granted the motion to dismiss to the extent it asserted that the court lacks personal jurisdiction over the defendant. 5 pages. Judge Paul J. Barbadoro.


PROPERTY LAW; FORECLOSURE
2/21/13
Calef v. Citibank, N.A. et al.,
Case No. 11-cv-526-JL, Opinion No. 2013 DNH 023

The plaintiff sought to enjoin his eviction from property he previously owned, alleging that he had been wrongfully foreclosed upon because (a) an assignment of his mortgage to the foreclosing entity was invalid, and (b) the foreclosure deed and affidavit were invalid. On motion, the court granted summary judgment to the defendants. The court concluded that N.H. Rev. Stat. Ann. § 479:25, II barred plaintiff from bringing his assignment-related claims because he knew or should have known the facts underlying those claims well in advance of the foreclosure sale. The court also concluded that alleged deficiencies in the foreclosure deed and affidavit did not affect the foreclosure’s validity. 15 Pages. Judge Joseph N. Laplante.


SOCIAL SECURITY
2/15/13
Sibley v. Astrue
Case No. 12-cv-20-PB, Opinion No. 2013 DNH 022

James Sibley, widower of claimant Susan Sibley, appealed the Commissioner’s denial of her application for Social Security Disability Insurance. She claimed the ALJ lacked substantial evidence to support his finding that she was not disabled as of her date last insured. She also claimed that the ALJ failed to properly evaluate the medical evidence, failed to call a medical advisor to testify as to her date of onset, relied on improper factors to conclude that Sibley’s testimony was not credible, and ignored her request to reopen a prior termination of benefits. After reviewing the evidence, the court agreed that the ALJ lacked substantial evidence for his factual conclusions, granted Sibley’s motion, and remanded the case for further proceedings before the Commissioner. 30 pages. Judge Paul J. Barbadoro.


2/7/13
Jennifer Wyman v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-574-PB, Opinion No. 2013 DNH 019

Wyman appealed the Commissioner’s denial of her application for Supplemental Security Income benefits. She claimed that the ALJ lacked substantial evidence to find that alcohol dependence was a contributing factor material to her disability. After reviewing the record, the court found that the evidence cited by the ALJ does not amount to substantial evidence to support his ultimate conclusion that Wyman’s alcohol abuse is material to her inability to work. Accordingly, the court granted Wyman’s motion and remanded the case to the Social Security Administration for further proceedings. 15 pages. Judge Paul J. Barbadoro.

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