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Bar News - April 19, 2013


US District Court Decision Listing: March 2013

* Published

ADMINISTRATIVE LAW
3/18/13
In re Colgate-Palmolive Softsoap Antibacterial Hand Soap Marketing and Sales Practices Litigation
Case No. 12-md-2320-PB, Opinion No. 2013 DNH 038

Consumers of Softsoap Antibacterial branded soap filed a consolidated class action complaint against Colgate–Palmolive Company, the manufacturer of Softsoap Antibacterial. Plaintiffs claimed that Colgate is liable for damages because it induced class members to purchase Softsoap Antibacterial by making false and misleading marketing claims. Colgate responded by arguing, among other things, that the action should be dismissed or stayed because the Food and Drug Administration has primary jurisdiction over certain factual questions that must be answered to resolve plaintiffs’ claims. Considering the reasons for the doctrine, the First Circuit’s test for applying it, and the prospect of significant delay if the case were referred, the court denied Colgate’s motion to dismiss or stay to the extent that it was based on the primary jurisdiction doctrine. The court concluded that the issues in the case neither turn on factual disputes that lie at the heart of the FDA’s regulatory authority nor require the agency’s expertise, and that any potential benefit of waiting for FDA action does not justify the significant delay in resolving plaintiffs’ claims. 26 pages. Judge Paul J. Barbadoro.


ATTORNEY’S FEES
3/12/13
Charles P. Forsberg v. Kearsarge Regional School District
Case No. 12-cv-27-SM, Opinion No. 2013 DNH 028

Defendant moved for an award of attorney’s fees, arguing that pro se plaintiff brought his federal claims in bad faith and/or that those claims were frivolous, unreasonable, or without foundation. Although the court noted that defendant’s argument presented a close case, it denied the motion, concluding that while plaintiff’s arguments were ill-informed and superficial, they were not plainly frivolous. 3 pages. Judge Steven J. McAuliffe.


BANKRUPTCY LAW
3/26/13
Munce Superior Oils, et al. v. New Hampshire Department of Environmental Services, et al.
Case No. 12-cv-262-JL, Opinion No. 2013 DNH 042

The Chapter 11 debtors-in-possession appealed an order of the Bankruptcy Court ruling that nearly $200,000 in fines assessed against them for contempt in a state-court environmental action qualified as "the actual, necessary costs and expenses of preserving the estate," such that those fines were entitled to administrative priority under 11 U.S.C. § 503(b)(1)(A). The district court affirmed, concluding that the fines, which had been assessed for postpetition violations of state environmental law and a prepetition injunction, were entitled to administrative priority under the rationale of the First Circuit Court of Appeals’ opinions in In re Charlesbank Laundry, 755 F.2d 200 (1st Cir. 1985) and Cumberland Farms, Inc. v. Florida Department of Environmental Protection, 116 F.3d 16 (1st Cir. 1997). 19 Pages. Judge Joseph N. Laplante.


CIVIL RIGHTS; CONSTITUTIONAL LAW
3/15/13
Elena Katz, et al. v. Brian McVeigh, et al.
Case No. 10-410-JL, Opinion No. 2013 DNH 037

The plaintiffs brought various claims under the Constitution and state law arising out of their loss of custody of their daughter to the New Hampshire Department of Children, Youth, and Families and her subsequent placement in a private rehabilitation facility--as well as the plaintiffs’ own arrest and detention for interfering with the award of custody to DCYF. Granting the defendants’ motions to dismiss these claims, the court ruled, among other things, that (1) while the plaintiffs had been appointed as guardians of the estate of their daughter, who was deemed incompetent to manage her affairs, they could not bring claims on her behalf while acting pro se, (2) the plaintiffs did not plausibly allege that the defendants had acted in retaliation for complaints the plaintiffs made about their daughter’s education by a local public school district, because the majority of the defendants had no reason to know or care about those complaints, (3) the plaintiffs did not plausibly allege a conspiracy among the defendants, or any group of them, (4) any constitutional claim against the rehabilitation facility or its employees failed, because they are not state actors, (5) the Rooker-Feldman doctrine barred the plaintiffs’ claims that the results of the custody proceedings violated their constitutional rights, (6) qualified immunity barred any claim against the defendants for their role in those proceedings, or subsequent guardianship proceedings, (7) qualified immunity also barred any claims against law enforcement officers who participated in the plaintiffs’ arrests or detention, which were amply supported by probable cause, and (8) state-law claims of negligence and defamation were based on privileged statements and conduct, barred by the statute of limitations, or otherwise inadequately pled. 102 pages. Judge Joseph N. Laplante.


CLASS ACTIONS
3/26/13
In re: Dial Complete Marketing and Sales Practices Litigation
Case No. 11-md-2263-SM, Opinion No. 2013 DNH 043

Defendant moved to dismiss plaintiffs’ consolidated multi-district class action complaint on three grounds: first, that it failed to plead plaintiffs’ fraud claims with sufficient specificity; second, that the "primary jurisdiction" doctrine counseled in favor of referring the matter to the Food and Drug Administration, so it might bring its expertise to bear in resolving issues raised by plaintiffs; and, finally, that a variety of plaintiffs’ state law claims failed to state viable causes of action. After considering and rejecting each of defendant’s arguments, the court denied the motion to dismiss. 24 pages. Judge Steven J. McAuliffe.


EDUCATION LAW; DISABILITY LAW; IDEA
3/5/13
Pass v. Rollinsford School District
Case No. 11-284-JL, Opinion No. 2013 DNH 029

In this action under the Individuals with Disabilities Education Act, the plaintiff challenged the New Hampshire Department of Education’s decision rejecting her claim that the Rollinsford School District failed to provide her ward with a free and appropriate public education ("FAPE"). The District, in response, argued that (1) parts of the plaintiff’s claim were barred by the statute of limitations and the doctrine of waiver, and (2) it did provide the student with a FAPE. The court affirmed the denial of reimbursement. It concluded that the statute of limitations barred some, but not all, of the plaintiff’s challenges, as she did not bring suit within two years of her discovery of the alleged violations. The court further held that the plaintiff did not waive any of her remaining claims, as she raised her concerns with the student’s educational programming repeatedly before filing suit. It concluded, however, that the individualized education programs the District developed for the student were reasonably calculated to provide her with an educational benefit and, therefore, provided a FAPE. 63 Pages. Judge Joseph N. Laplante.


EMPLOYMENT
3/8/13
David B. Scott v. NH Police Standards and Training Council, et al
Case No. 12-cv-435-PB, Opinion No. 2013 DNH 031

David Scott sued the New Hampshire Police Standards and Training Council and the State of New Hampshire claiming the defendants violated Title VII’s prohibition on employment discrimination because the Academy’s final fitness test improperly favors female cadets. Scott was unable to pass the final fitness test and was therefore deemed ineligible to work as a full-time police officer in New Hampshire. The Court dismissed Scott’s complaint because defendants, who were never Scott’s "employers" under the Act, are not subject to Title VII. 3 pages. Judge Paul J. Barbadoro.


3/7/13
Katie M. Bates v. Private Jet Commercial Group, Inc., et al.
Case No. 11-cv-547-SM, Opinion No. 2013 DNH 030

Former employee sued supervisor and corporate employer under Title VII and state laws, alleging that supervisor sexually assaulted her at work. Defendants moved to dismiss certain counts. The court granted the motion, holding that supervisor could not be held liable in his individual capacity either under Title VII, or under New Hampshire’s employment discrimination statute pursuant to an alter ego theory. The court further held that plaintiff failed to state a claim against corporate defendant for vicarious liability because the complaint did not allege that the supervisor was acting within the scope of his employment during the alleged sexual assault. 4 pages. Judge Steven J. McAuliffe.


FEDERAL TAX LIEN; MORTGAGE LAW
3/28/13
United States of America v. Alex Washington et al.
Case No. 10-cv-39-JL, Opinion No. 2013 DNH 045

In an action to enforce federal tax liens against a parcel of residential property, the government moved for summary judgment on its claim that its liens were superior to the mortgage interest claimed on behalf of a bank to which, at some point, the property owners had made mortgage payments. Nevertheless, there was no dispute that the bank was outside the chain of title of both the mortgage of record and the accompanying promissory note (which the bank did not possess, claiming to have lost it). While the bank claimed to have been assigned the note by a third-party before losing it, the prior assignment of the note to the third-party had post-dated an assignment of the note to someone else outside the bank’s chain of title. The court ruled that, under New Hampshire law, this assignment took priority and, because the bank had offered nothing but speculation to question the validity of this assignment, granted the government’s motion for summary judgment. 25 pages. Judge Joseph N. Laplante.


REMAND
3/12/13
The Skydive Factory, Inc. v. Skydive Orange, Inc.
Case No. 12-cv-307-SM, Opinion No. 2013 DNH 033

Plaintiff brought a breach of contract claim against defendant in state court. Defendant removed to federal court, invoking the court’s diversity jurisdiction. Plaintiff moved for remand. Court granted the motion, finding that the parties’ contractual forum selection clause mandated that all contractual disputes between the parties be filed and litigated in New Hampshire state court. 8 pages. Judge Steven J. McAuliffe.


3/14/13
David Nemetz v. Town of Sanbornton
Case No. 13-cv-10-SM, Opinion No. 2013 DNH 034

Plaintiff property owner brought federal and state law claims against Town of Sanbornton in state court, alleging that Town improperly levied tax assessments and executed and recorded a tax deed against his property. Town removed the case to federal court. Court granted plaintiff’s motion to remand, holding that the Tax Injunction Act, 28 U.S.C. § 1341, barred federal court from hearing plaintiff’s claims. 4 pages. Judge Steven J. McAuliffe.


RES JUDICATA
3/5/13
John and Joanne Merrick v. CitiMortgage, Inc.
Case No. 12-cv-263-SM, Opinion No. 2013 DNH 027

Plaintiffs brought suit seeking to enjoin the foreclosure of their home. Defendant moved to dismiss, asserting that the plaintiffs claims were all resolved against them in an earlier adversary proceeding in the bankruptcy court. Accordingly, defendant asserted that those claims were barred by res judicata. The court agreed, concluding that all the essential elements of res judicata were present. Motion to dismiss granted. 9 pages. Judge Steven J. McAuliffe.


SECURITIES
3/28/13
City of Omaha Police and Fire Retirement System, Individually and on Behalf of Itself and all Others Similarly Situated v. The Timberland Company, et al.
Case No. 11-cv-277-SM, Opinion No. 2013 DNH 044

Plaintiff investors brought securities fraud suit against corporation, its chairman, and two high-ranking officers, alleging fraudulent "channel stuffing." Court granted defendants’ motion to dismiss, albeit without prejudice to amending, finding that complaint failed to allege with particularity why defendants’ statements were false or misleading when made with the requisite specificity. 45 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY
3/28/13
Christopher Harold Swan v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-482-JD, Opinion No. 2013 DNH 046

Christopher Swan challenged the Commissioner’s decision denying Swan’s application for disability insurance benefits under Title II and supplemental security income under Title XVI. Swan contended that the Administrative Law Judge ("ALJ") erred in failing to find that Swan met or equaled Listing 12.05C under 20 C.F.R. Part 404, Subpart P, Appendix 1. The Commissioner moved to affirm the decision. The court granted Swan’s motion and denied the Commissioner’s motion, holding that the ALJ erred when he found that Swan’s reported IQ score, which would have met the second prong of Listing 12.05C, was invalid. The court noted that both the psychologist who administered the IQ test and the independent medical examiner opined that the IQ score was valid, and that the ALJ erred in disregarding those opinions and substituting his own views of the evidence. 13 pages. Judge Joseph A. DiClerico, Jr.


3/29/13
Edwin Santiago v. Michael J. Astrue, Commissioner
Case No. 11-cv-537-JL, Opinion No. 2013 DNH 048

A claimant appealed the denial of his application for benefits by an Administrative Law Judge at the Social Security Administration. Affirming the ALJ’s decision, the court ruled that (1) the ALJ did not err in deeming certain of the claimant’s alleged impairments non-severe but, even if he did, it made no difference because the ALJ found at least one severe impairment, and accounted for the non-severe ones in determining the claimant’s residual functional capacity, (2) substantial evidence supported the ALJ’s decision to give little weight to the opinions of the claimant’s treating physician as to his functional limitations, insofar as they differed from the opinions of a non-treating physician, (3) the ALJ permissibly rejected the opinions of a psychologist as to limitations on the claimant’s mental functioning, and (4) the ALJ properly relied on the Medical-Vocational Rules, rather than testimony by a vocational expert, in ruling that the claimant’s capacity for less than the full range of light work left him able to do jobs existing in significant numbers in the national economy. 17 pages. Judge Joseph N. Laplante.


SEXUAL OFFENDER - DUE PROCESS
3/20/13
Harvey Lemay v. New Hampshire Department of Safety
Case No. 11-cv-185-JD, Opinion No. 2013 DNH 039

The plaintiff brought civil rights claims against New Hampshire State Troopers, alleging that they violated his due process rights by characterizing his prior convictions in a way that extended the requirement that he register as a sexual offender. The defendants moved for summary judgment, and the plaintiff failed to respond. The court concluded that because the plaintiff was provided a hearing on the extension of his registration requirement and the plaintiff did not allege or show any procedural deficiencies in the hearing or the process he was given, the defendants were entitled to summary judgment. Motion for summary judgment granted. 7 pages. Judge Joseph A. DiClerico, Jr.

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