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Bar News - May 17, 2013

US District Court Decision Listing: April 2013

* Published

Davis, et al. v. Ciborowski Family Trust et al.
Case No. 11 cv 436 PB, Opinion No. 2013 DNH 055

The parties filed cross motions for partial summary judgment on the issue of whether alterations defendants made to Phenix Hall, a building located in the Downtown Concord Historic District, are subject to the ADA’s accessibility and usability requirements. Defendants did not contest the plaintiffs’ assertion that there are many ways that the alterations to the building’s stairs could have been made that would have affected the way in which the building was used by the general public. Because the court determined that this is all that is required to subject a proposed alteration of a commercial facility to Title III, the court granted the plaintiffs’ partial summary judgment on the alteration issue and denied the defendants’ motion. 13 pages. Judge Paul J. Barbadoro.

BAE Systems Information and Electronics Systems Integration, Inc. v. SpaceKey Components, Inc.
Case No. 10 cv 370 LM, Opinion No. 2013 DNH 064 P

This business dispute, involving various sections of the Uniform Commercial Code, pitted a manufacturer of satellite parts against a customer that, pursuant to a consultant agreement with the manufacturer, purchased the manufacturer’s parts for resale to end users. The most significant aspect of the court’s order is its ruling on the buyer’s claim for breach of contract, arising from the buyer’s failure to pay for 200 of the parts, and the seller’s claim for breach of warranty. Based upon a limitation of remedies in the parties’ purchase and sale agreement, which the court found not to fail of its essential purpose, the court ruled that while the parts may not have conformed to the seller’s warranties, the buyer’s failure to pay for them was a breach of contract. The court further ruled that the breach of warranty was not actionable due to the buyer’s failure to avail itself of the available contractual remedy. 63 pages. Magistrate Judge Landya B. McCafferty.

Drouin, et al. v. American Home Mortgage Servicing, Inc., et al.
Case No. 11-cv-596-JL, Opinion No. 2013 DNH 056

The defendants moved to dismiss the case under Federal Rule of Civil Procedure 41(b), citing the plaintiffs’ failure to respond to discovery requests, in direct violation of a court order, and to attend their scheduled depositions. The court granted the motion. While the court noted that the sanction of dismissal should be used sparingly, it concluded that sanction was appropriate in light of the plaintiffs’ history of noncompliance with court orders, their clear contempt for their discovery obligations, the resultant harm to the defendants, and the absence of both an explanation for the plaintiffs’ conduct and an appropriate alternative sanction. 16 Pages. Judge Joseph N. Laplante.

Alleman v. Montplaisir, et al.
Case No. 12-cv-282-JL, Opinion No. 2013 DNH 062

The plaintiff moved for judgment on the pleadings on his claims against a police officer for arresting and charging the plaintiff without probable cause, and in violation of his First Amendment rights. The charge was dismissed in a ruling by the District Division of the New Hampshire Circuit Court, based on a joint stipulation of facts by the prosecution and the defense. The plaintiff argued that the officer was collaterally estopped from contesting the stipulated facts, and that those facts entitled the plaintiff to judgment on his claims against the officer. Denying the motion, the court ruled that, because stipulated facts are not actually litigated, they have no collateral estoppel effect, and, in the absence of such an effect, the court could not consider the stipulation in deciding a motion for judgment on the pleadings. 7 pages. Judge Joseph N. Laplante.

Moore v. Mortgage Electronic Registration Systems
Case No. 10-cv-241-JL, Opinion No. 2013 DNH 065

The plaintiffs alleged impropriety in the servicing of their mortgage loan, pressing several counts against the former servicers of their loan, foreclosure counsel, and a handful of entities claiming to hold their mortgage and associated note. On the defendants’ motion, the court granted summary judgment in full. The court concluded, among other things, that (1) the plaintiffs did not proffer evidence that they suffered actual damages attributable to the defendants’ alleged violation of the Real Estate Settlement Procedures Act; (2) the record evidence did not demonstrate a violation of the Fair Debt Collection Practices Act; (3) the plaintiffs’ informal log of telephone calls, proffered in support of their claim under the New Hampshire Unfair, Deceptive or Unreasonable Collection Practices Act, was inadmissible hearsay; and (4) one of the defendants had presented undisputed evidence that it possessed the plaintiffs’ promissory note and was therefore entitled to enforce the note. 26 Pages. Judge Joseph N. Laplante.

In re Colgate Palmolive Softsoap Antibacterial Hand Soap Marketing and Sales Practices Litigation
Case No. 12 md 2320 PB, Opinion No. 2013 DNH 049

Consumers of Softsoap Antibacterial branded soap filed a consolidated class action complaint against Colgate–Palmolive Company, the manufacturer of Softsoap Antibacterial. Plaintiffs allege that Colgate is liable for damages because it induced class members to purchase Softsoap Antibacterial by making false and misleading marketing claims. They bring consumer protection, breach of express and implied warranty, and unjust enrichment claims in six different states. Colgate filed a motion to dismiss challenging, in part, the sufficiency of the plaintiffs’ pleadings on various grounds. The law that applies to resolve plaintiffs’ claims will vary depending upon the choice of law rules of each transferor court. Here, neither party has adequately briefed the law that governs plaintiffs’ claims. Accordingly, the court denied defendant’s motion to dismiss without prejudice to the extent that it was based on claims that plaintiffs have failed to plead viable causes of action. 4 pages. Judge Paul J. Barbadoro.

Doreen W. (W.B.) v. Healthcare Assoc., Inc.
Case No. 11-cv-326-JL, Opinion No. 2013 DNH 054*

The defendant filed a motion in limine seeking to exclude evidence of the “face amount” of the bills for the medical treatment the plaintiff required as a result of the defendant’s alleged medical malpractice. The defendant argued that the face amounts of the bills were unfairly prejudicial because the plaintiff’s medical providers had “written off” portions of those bills (i.e., accepted less than the face amount in satisfaction). Rejecting this argument, the court ruled that (1) New Hampshire’s version of the collateral source allowed the plaintiff to recover the reasonable value of his medical expenses, notwithstanding any benefit he had received from a third party, and that included the benefit he received when his providers agreed to accept less than the face amounts of the bills and (2) the face amounts of the bills were probative of, if not necessarily conclusive on, the reasonable value of the plaintiff’s medical expenses. 8 pages. Judge Joseph N. Laplante.

United States Securities and Exchange Commission v. Hor Chong (David) Boey, and Jerry A. Shanahan
Case No. 07-cv-39-SM, Opinion No. 2013 DNH 066

Plaintiff Securities and Exchange Commission moved for entry of default judgment against sole remaining defendant two years after clerk’s entry of default. The court denied the motion on the ground that clerk’s default was a nullity. Clerk’s default was based on defendant’s failure to answer or otherwise respond to the original complaint, which had been superceded by a later filed amended complaint, and the SEC had not given notice with respect to default on the amended complaint. 4 pages. Judge Steven J. McAuliffe.

Montemerlo v. Goffstown School Dist. #19
Case No. 12 cv 13 PB, Opinion No. 2013 DNH 050

Nancy Montemerlo, a former teacher in the Goffstown School District, brought employment discrimination claims under state and federal law. She alleged that her school’s principal, its human resources director, and other unknown school district employees violated her constitutional right to equal protection under the Fourteenth Amendment when they discriminated against her on the basis of a physical disability by failing to accommodate her diabetes. Two of the defendants, Principal James Hunt and Human Resources Director Carol Kilmister, moved to dismiss the equal protection claim (Count VII) pursuant to Fed. R. Civ. P. 12(b)(6). After construing the plaintiff’s factual allegations in the light most favorable to her, the court dismissed Count VII because the pleadings are insufficient to support any element of an equal protection claim. 9 pages. Judge Paul J. Barbadoro.

MMG Insurance Company v. Samsung Electronics America, Inc., et al.
Case No. 11-cv-430-JL, Opinion No. 2013 DNH 061

The defendants to a products liability action, alleging that the DVD player they manufactured and sold had caused a fire at the home of the plaintiff’s insured, moved for summary judgment, arguing that (1) the plaintiff could not prevail on its claims without expert testimony as to causation, but the expert testimony it had proffered on that subject was inadmissible under Rule 702 of the Federal Rules of Evidence, and (2) the plaintiff’s failure to secure, and subsequent manipulation of, the fire scene necessitated dismissal of the case as a sanction for spoliation. Rejecting these arguments, the court ruled that (1) the plaintiff’s proffered expert testimony met the standards for admissibility under Rule 702, and the defendants’ challenges to the experts’ qualifications and methodology went to weight, not admissibility, and (2) the defendants had failed to show either the degree of fault or the resulting prejudice to warrant dismissing the case for spoliation. 25 pages. Judge Joseph N. Laplante.

Susan E. Himes v. Client Services, Inc.
Case No. 12 cv 321 PB, Opinion No. 2013 DNH 060

Susan Himes sued Client Services, Inc. for allegedly violating the federal Fair Debt Collection Practices Act, the New Hampshire Unfair, Deceptive or Unreasonable Collection Practices Act, and the New Hampshire Consumer Protection Act. Client Services moved to dismiss Himes’s complaint for failure to state a claim. Himes alleges that Client Services sent her a misleading letter seeking to collect a debt and then transferred the debt to another debt collector without honoring her request for validation of the debt. Himes does not identify a false representation made in the letter or explain how or why the letter’s contents misled her. Himes also fails to adequately demonstrate that Client Services violated the FDCPA or UDUCPA by failing to respond to her request to validate the debt or by transferring her debt to another debt collector. Accordingly, the court granted defendant’s motion to dismiss. 10 pages. Judge Paul J. Barbadoro.

Union Leader v. U.S. Department of Homeland Security, Immigration and Customs Enforcement
Case No. 12 cv 134 PB, Opinion No. 2013 DNH 063

The Union Leader filed a complaint based on the Freedom of Information Act (“FOIA”) seeking to compel Immigration and Customs Enforcement (“ICE”) to produce records of the names and addresses of six individuals ICE arrested in 2011. The parties filed cross motions for summary judgment. The court granted ICE’s motion for summary judgment finding that the redaction of personally identifying information from I 213 forms falls under Exception 7(c) of the FOIA. Exception 7(c) exempts from disclosure private information compiled for law enforcement purposes to the extent that the production of such records “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). 17 pages. Judge Paul J. Barbadoro.

JURISDICTION (Subject Matter)
Old Republic National Title Insurance Company v. Donald J. Kelts, et al.
Case No. 12-cv-352-SM, Opinion No. 2013 DNH 051

Defendants in this declaratory judgment action moved to dismiss the complaint, asserting that the court lacks diversity subject matter jurisdiction. While none of the arguments advanced had merit, they did touch upon a potentially dispositive issue: because one of the defendants is a limited partnership, plaintiff must affirmatively allege the citizenship of each partner in order to establish the requisite diversity for subject matter jurisdictional purposes. It failed to do so. Accordingly, the court directed plaintiff to either show cause why its complaint should not be dismissed for lack of subject matter jurisdiction or, in the alternative, file an amended complaint properly alleging that the parties are completely diverse. 7 pages. Judge Steven J. McAuliffe.

Gikas v. JPMorgan Chase Bank, N.A., et al.
Case No. 11-cv-573-JL, Opinion No. 2013 DNH 057

The plaintiff sought relief from the servicer of his mortgage loan and the original mortgagee for their (1) failure to provide him with a permanent loan modification, and (2) allegedly wrongful conduct during the foreclosure of his mortgage. On the defendants’ motion, the court granted summary judgment in full. The court concluded that the undisputed evidence demonstrated that the plaintiff had not provided the defendants with the information that he had agreed was a prerequisite to receiving a permanent modification, and that it was a third party–-not the defendants–-that had conducted the foreclosure and owed the statutory and common-law duties the plaintiff alleged were breached. 13 Pages. Judge Joseph N. Laplante.

Lehane v. Wachovia Mortgage, et al.
Case No. 12 cv 179 PB, Opinion No. 2013 DNH 059

Marilyn Lehane and her husband sued Wachovia, formerly Wells Fargo Bank, claiming that the bank was complicit in the overstatement of Marilyn’s income on a mortgage loan application, approved her for the loan even though it knew she could not afford to repay it, and improperly required her to provide excessive security for the loan. The Lehanes brought state law claims for damages and sought to enjoin the foreclosure of their Westmoreland property. They also asked this court to declare void a loan modification agreement signed by Edward Lehane in 2011. Wells Fargo moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and argued that the plaintiffs’ damages claims are preempted by the federal Home Owners’ Loan Act. 12 U.S.C. § 1461 1468. The court dismissed plaintiffs’ claims alleging fraud, conspiracy to commit fraud, and violations of the Consumer Protection Act because they were barred by the statutes of limitations. The court dismissed plaintiffs’ claim alleging violation of the Unfair, Deceptive or Unreasonable Collection Practices Act because they failed to establish that defendants’ conduct constituted a prohibited deceptive practice under the statute. Because the court granted the motion to dismiss plaintiffs’ damages claims on 12(b)(6) grounds, it did not address the preemption question. The court denied the motion to the extent that it sought dismissal of plaintiffs’ claims for injunctive and declaratory relief. 13 pages. Judge Paul J. Barbadoro.

Galvin, et al. v. EMC Mortgage Corporation, et al.
Case No. 12-cv-320-JL, Opinion No. 2013 DNH 053

In this action by defaulted mortgagors to enjoin foreclosure proceedings, the court, on the defendants’ motion, dismissed 14 of 15 counts in the plaintiffs’ complaint for failure to state a claim. The court concluded, among other things, that (1) the “bifurcation” of the note and mortgage did not render the mortgage unenforceable; (2) the economic loss doctrine precluded the plaintiffs from asserting negligence claims because the only duties the defendants owed to them were contractual in nature; (3) the plaintiffs were not third-party beneficiaries of their loan servicer’s Servicer Participation Agreement with the federal government; (4) the fact that one of the plaintiff mortgagors did not sign the promissory note did not render the mortgage void; and (5) the plaintiffs’ claims under the Truth In Lending Act were barred by the statute of statute of limitations. The court concluded, however, that the plaintiffs had stated a claim that the defendants had breached the implied covenant of good faith and fair dealing by failing to credit their account for payments they had made. 40 Pages. Judge Joseph N. Laplante.

Mary Linda Reed and Richard Reed v. City of Portsmouth
Case No. 12 cv 164 JD, Opinion No. 2013 DNH 052

The defendant moved for summary judgment on the plaintiffs’ claims for negligence and loss of consortium arising out of Mary Linda’s fall in the defendant’s park. The defendant argued that it was immune from liability under New Hampshire’s recreational use statutes. The plaintiffs objected to the motion, arguing that the statutes do not apply to municipal owners of public property or to public parks generally, that Mary Linda was not covered by the statutes because she was not engaged in recreational activity at the time of her fall, and that the defendant could be liable in any event because it assumed a duty of care by maintaining the park. The court granted the defendant’s motion, holding that the plain language of the recreational use statutes gave the defendant immunity from liability arising out of the Mary Linda’s activity at the time of her fall. 10 pages. Judge Joseph A. DiClerico, Jr.

Sarah’s Hat Boxes, L.L.C. v. Patch Me Up, L.L.C.
Case No. 12 cv 399 PB, Opinion No. 2013 DNH 058

Sarah’s Hat Boxes, L.L.C., (“SHB”), a hat box manufacturer located in New Hampshire, sued Patch Me Up, L.L.C., (“PMU”), L’Artisane Box, Peter Semenoff, and Debra Mangum alleging that the defendants stole business from SHB by making false claims on their website about the source, quality, and patent status of the hat boxes listed for sale. SHB brings claims under the Lanham Act and the New Hampshire Consumer Protection Act. SHB also alleges common law tortious interference with a contractual relationship. Defendants moved to dismiss SHB’s claims, arguing that this court lacks personal jurisdiction, venue is improper, and plaintiffs failed to state a viable claim for relief. The court found that it has specific personal jurisdiction over the California defendants because SHB’s claims arise from the defendants’ contacts with New Hampshire. The court also found venue is proper in New Hampshire for all defendants because a substantial part of the events or omissions giving rise to SHB’s claim occurred in New Hampshire. Finally, the court denied defendants’ motion to dismiss the Lanham Act claim and the New Hampshire CPA claim for failure to state a cause of action. The court granted defendants’ motion to dismiss plaintiffs tortious interference with business claim for failure to state a cause of action. 35 pages. Judge Paul J. Barbadoro.

Mangiardi Brothers Trucking, Inc. v. Dewey Environmental, LLC, et al.
Case No. 12 cv 481 JD, Opinion No. 2013 DNH 069

The defendant owner of a construction site and the defendant general contractor for a project on the construction site moved to dismiss the plaintiff third tier subcontractor’s claims for unjust enrichment and quantum meruit arising out of unpaid invoices for the plaintiff’s services on the project. The court granted the defendants’ motions, holding that there was no reason to depart from the general rule that a third tier subcontractor could not recover from an owner or general contractor under a quasi contract theory, particularly when it performed its services under an agreement with a different subcontractor. The court noted that the plaintiff failed to allege facts to support its contention that it expected the owner or general contractor, as opposed to one of the other subcontractors with which it had contracted, to pay for its services. 20 pages. Judge Joseph A. DiClerico, Jr.

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