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Bar News - June 21, 2013

US District Court Decision Listing: May 2013

* Published

Bethany T., as Next Friend and on Behalf of T.T., a Minor v. Raymond School District with SAU 33, et al.
Case No. 11-cv-464-SM, Opinion No. 2013 DNH 074

Defendants — individual school administrators, a school district, and a school administrative unit — moved for summary judgment on plaintiff student’s Title VI, equal protection, and state law claims arising from school’s alleged failure to adequately respond to peer racial harassment. The court granted the motion as to the individual defendants on the Title VI claim, holding that individuals are not liable under that statute. The motion was denied as to the Title VI and equal protection claims against the municipal defendants because a jury could find that the defendants’ response to the alleged harassment constituted “deliberate indifference.” The court granted summary judgment in favor of all defendants on plaintiff’s state law claim for intentional infliction of emotional distress, holding that a reasonable jury could not find that defendants’ conduct was “extreme and outrageous.” Finally, summary judgment was granted in favor of the municipal defendants on the state law negligence claim on grounds of statutory immunity, but denied as to the individual defendants. 14 pages. Judge Steven J. McAuliffe.

Darren Gallant v. Jessica Gallant, William Pica, Sandown Police Department, and the Town of Sandown, NH
Case No. 11-cv-600-SM, Opinion No. 2013 DNH 082

Police department, individual officer, and former wife of plaintiff/arrestee, moved for summary judgment on plaintiff’s federal and state law claims of false arrest, false imprisonment, malicious prosecution, and violation of procedural due process rights. The court granted the motion as to all federal claims, holding that no reasonable jury could find that the officer lacked probable cause to arrest and detain plaintiff, and further concluding that plaintiff had not established a legal entitlement to additional or alternative procedures relating to a state-issued trespass notice against him with respect to the marital home. The court declined to exercise supplemental jurisdiction over the remaining state law claims, and remanded those claims to the state court. 16 pages. Judge Steven J. McAuliffe.

Terry Bryant v. Liberty Mutual Group, Inc. Case No. 11-cv-217-SM, Opinion No. 2013 DNH 077
Margaret Trefethen v. Liberty Mutual Group, Inc. Case No. 11-cv-225-SM, Opinion No. 2013 DNH 081

In these related cases, plaintiffs sued their former employer, Liberty Mutual, seeking damages for wrongful termination and various acts of discrimination. Liberty Mutual moved for summary judgment, noting that, in exchange for the receipt of severance benefits, plaintiffs had executed a release of all employment-related claims — including claims of the very sort they were now pursuing. In response, plaintiffs claimed they did not “knowingly and voluntarily” agree to be bound by the release, because they were under economic duress, subjected to coercion, and misled by fraudulent misrepresentations when they signed it. After addressing each of plaintiffs’ arguments, the court granted Liberty Mutual’s motions for summary judgment, holding that, as a matter of law, plaintiffs failed to demonstrate that the releases were unenforceable. 29 and 23 pages. Judge Steven J. McAuliffe.

United States v. Maria Ulloa
Case No. 12-cr-2-JL, Opinion No. 2013 DNH 070*

The prosecution moved in limine to preclude various evidence from being used to impeach its witnesses. The court held that the defendant could not impeach one witness with a letter from immigration authorities denying his application to travel outside the United States, holding that Federal Rule of Evidence 608(b) precluded the use of the letter to show the witness’s character for truthfulness. The court held, however, that the defendant could nonetheless cross-examine the witness about the conduct related in the letter under Rule 608(b), and could also use the letter to show the witness’s potential bias in favor of the prosecution. The court also held that the defendant could not impeach a second prosecution witness with evidence of that witness’s past wrongdoing because that wrongdoing was too remote in time to have any probative value, and that the defendant could impeach a third prosecution witness with evidence that the witness misrepresented his marital status on an immigration form. Finally, the court acknowledged that it had erred in instructing the jury as to the purposes for which it could use evidence of a fourth prosecution witness’s similar crimes under Federal Rule of Evidence 404(b), but concluded that this error had been harmless. 16 Pages. Judge Joseph N. Laplante.

Leif Anderson v. United States of America
Case No. 12-cv-115-SM, Opinion No. 2013 DNH 068

Based upon his guilty plea, petitioner was convicted of one count of failing to register as a sex offender. After his conviction and sentence were affirmed on direct appeal, he filed this habeas corpus petition. In it, petitioner asserts that his conviction and sentence as a tier III sex offender who failed to register must be vacated, because his guilty plea was neither knowing nor voluntary and because both trial and appellate counsel provided constitutionally deficient representation. In short, he says neither counsel pursued (or even informed him of) a potential argument that, for sentencing purposes, he should not be treated as a tier III offender under a “categorical approach” — that is, one that looks only to the elements of his underlying crime of conviction, rather than the particular facts of his case. The court denied the petition, holding that petitioner’s claim was procedurally defaulted, he failed to show cause for that default, and he failed to demonstrate that he received ineffective assistance of counsel at either the trial or appellate level. 23 pages. Judge Steven J. McAuliffe.

Joseph Taillon v. United States of America
Case No. 11-cv-470-SM, Opinion No. 2013 DNH 073

Petitioner was convicted, based upon his guilty pleas, of four offenses involving racketeering and fraud — all stemming out of a sizeable telemarketing scheme that defrauded its victims by falsely telling them that they had won a large Canadian lottery but, to collect their winnings, they had to send cashier’s checks to post office boxes in Montreal to cover expenses related to delivering those winnings. Petitioner sought habeas corpus relief, asserting claims of ineffective assistance of counsel and prosecutorial misconduct. The court addressed both claims and concluded that neither was supported by the record. Accordingly, it denied the petition. 21 pages. Judge Steven J. McAuliffe.

Clauson & Atwood v. Professionals Direct Insurance Co.
Case No. 12-cv-199-JL, Opinion No. 2013 DNH 075

The defendant insurer in this action regarding the scope of an attorneys’ professional liability insurance policy filed a motion for summary judgment in its favor, which the court granted. Noting that the policy in question was a “claims made and reported” policy that covered only claims made against the insured and reported to the insurer within the policy period, the court concluded that the claim for which the plaintiff law firm sought coverage had been made well in advance of the policy period, when the law firm received a demand letter from its former client’s new counsel alleging malpractice and threatening litigation. 18 Pages. Judge Joseph N. Laplante.

Josephine Phaneuf v. Michael Ortlieb, et al.
Case No. 12-cv-474-JL, Opinion No. 2013 DNH 076

Following an automobile accident that seriously injured her and killed the other driver, the plaintiff asked the Superior Court to appoint a guardian ad litem to accept service of process on behalf of the other driver’s estate, invoking a provision of the non-resident motorist statute. While the Superior Court granted this request, no estate was opened, or administrator appointed, on behalf of the other driver. The plaintiff then brought suit in this court, naming, among others, the guardian ad litem and the other driver’s long-time live-in companion, both of whom moved to dismiss. This court granted the motions. First, this court ruled that an administrator appointed by the Probate Division was the only proper party to defend an action on behalf of an estate, and that the non-resident motorist statute did not change this rule simply by authorizing the appointment of a guardian ad litem to accept service of process on behalf a non-resident motorist’s estate. Second, the court ruled that the complaint failed to state a plausible claim for respondeat superior liability against the decedent’s live-in companion merely by alleging that, at the time of the accident, the decedent was “acting for the benefit and/or performing errands on behalf of” the companion. 22 pages. Judge Joseph N. Laplante.

Nicolas and Jill Bosonetto v. Town of Richmond, et al.
Case No. 12-cv-277-JL, Opinion No. 2013 DNH 080

The plaintiffs, proceeding pro se, brought claims against their town, one of its selectmen, and one of the members of its zoning board, alleging that they had violated a number of the plaintiffs’ federal constitutional rights by denying a building permit for their property. The defendants moved to dismiss, arguing, among other things, that these claims were barred by the res judicata effect of decisions by the New Hampshire Superior and Supreme Courts rejecting the plaintiffs’ challenges to the denial of the building permit. Granting the motion, the court ruled that (1) even though the federal suit named individual town officials not named in the state suit, they were in privity with the town in being sued for actions they took on its behalf, (2) because both the state and the federal suit arose out of the denial of the building permit, they presented the same cause of action, even if the federal suit pressed theories, including violations of federal constitutional rights and a conspiracy to do so, not pressed in the state suit and (3) the state courts’ rulings that the plaintiffs could not challenge the zoning board’s decision in court since they had failed to meet the administrative deadline to seek rehearing amounted to a final judgment on the merits for res judicata purposes. 20 pages. Judge Joseph N. Laplante.

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