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Bar News - August 23, 2013


US District Court Decision Listing: July 2013

* Published

BANKRUPTCY
7/16/13
ROK Builders, LLC v. 2010-1 SFG Venture, LLC et al.
Case No. 13-cv-16-PB, Opinion No. 2013 DNH 095

ROK Builders, LLC, a creditor of Moultonborough Hotel Group, LLC, appealed from the Bankruptcy Court’s confirmation of a Chapter 11 plan of reorganization. ROK sought reversal of the confirmation order, which led to the dissolution of Moultonborough Hotel Group and the distribution of its assets. The court rejected the appeal as equitably moot, and therefore did not reach the merits of the ROK’s objections to the confirmation order, for several reasons: ROK had failed to take advantage of numerous opportunities to seek a stay pending appeal; granting appellate relief would adversely affect third parties not before the court; and reversal would create an unmanageable situation for the Bankruptcy Court. 20 pages. Judge Paul. J. Barbadoro.


CIVIL RIGHTS; FIRST AND FOURTH AMENDMENTS
7/15/13
Scott Traudt v. Phillip Roberts, et al.
Case No. 10-cv-12-JL - Opinion No. 2013 DNH 094

The plaintiff, proceeding pro se, brought several claims against a municipality and certain of its police officers seeking damages for his arrest and conviction on charges of simple assault and disorderly conduct stemming from a traffic stop. Granting the defendants’ motion for summary judgment on all claims, the court ruled that (1) because the plaintiff’s convictions remained in effect, despite his numerous attempts at collaterally attacking them, his claim that the officers secured his convictions by conspiring to present false testimony against him was barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), (2) in any event, the plaintiff had failed to come forward with any admissible evidence of such a conspiracy, (3) the plaintiff’s convictions collaterally estopped him from prevailing on his claim that he was arrested without probable cause, (4) because the plaintiff had failed to come forward with any evidence, including his own testimony, to dispute the officers’ version of his arrest, they were entitled to immunity against his excessive force and common-law assault claims, (5) for the same reason, the officers were entitled to summary judgment on the plaintiff’s claim that they had used excessive force against him in retaliation for exercising his First Amendment rights prior to his arrest. 44 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS; HOUSING DISCRIMINATION
7/1/13
Chao-Cheng Teng v. Shore Club Hotel Condominiums, et al.
Case No. 11-cv-281-JL, Opinion No. 2013 DNH 092

The plaintiff alleged that the defendants–-a representative of an LLC selling condominium units, a real estate agent who showed the plaintiff the units, and that agent’s former employer –-refused to sell her one of the units on the basis of her race, thereby breaching a contract for the sale of the property and violating both the Fair Housing Act and 42 U.S.C. § 1982. On the defendants’ motion, the court granted summary judgment in their favor on all claims. With respect to the plaintiff’s federal statutory claims, the court concluded that the defendants had produced evidence that the actions about which the plaintiff complained had been taken for nondiscriminatory reasons, and that the plaintiff had failed to present evidence that those reasons were pretextual as required under the McDonnell Douglas burden-shifting framework. With respect to the plaintiff’s breach of contract claim against the LLC’s representative, who was also a member of the LLC, the court ruled that the representative could not be held individually liable on the LLC’s contracts under New Hampshire law. 15 Pages. Judge Joseph N. Laplante.


CONTRACTS
7/29/13
Stevens v. Liberty Mutual Group Inc.
Case. No. 11-cv-218-PB, Opinion No. 2013 DNH 104

Isabel Stevens signed a Severance Agreement and General Release upon her separation from Liberty Mutual releasing all legal claims against her employer in exchange for severance pay. She subsequently filed suit alleging violations of various federal and state anti-discrimination laws relating to her discharge. Liberty Mutual answered the complaint, denying liability and asserting counterclaims against Stevens for breach of contract, unjust enrichment, and fraud. Liberty Mutual then moved for summary judgment on Stevens’ claims, arguing that Stevens waived her claims when she knowingly and voluntarily executed the Agreement, and, even if Stevens did not waive her claims, Liberty Mutual was entitled to judgment as a matter of law. Liberty Mutual also moved for summary judgment with respect to its counterclaims. Stevens objected to Liberty Mutual’s motion, arguing that the Agreement was unenforceable because she was fraudulently induced to sign it and was under duress at the time. She also argued that the defendant’s motion for summary judgment should be denied because the parties dispute material facts. The court held that the severance agreement and general release were enforceable, and that Stevens’ claims were within the scope of the release. Thus, the court granted the defendant’s motion for summary judgment with respect to Stevens’ claims against Liberty Mutual without reaching the merits of those claims. The court denied the motion with respect to Liberty Mutual’s counterclaims against Stevens. 36 pages. Judge Paul J. Barbadoro.


DEFAMATION
7/18/13
Joachim S. Musekiwa v. American Airlines, Inc.
Case No. 12-cv-120-SM, Opinion No. 2013 DNH 099

Pro se plaintiff brought defamation action against American Airlines, seeking $3 million in damages. Plaintiff claimed American wrongfully and maliciously suggested he was a criminal when it sent him a letter denying his claim for compensation arising out of an allegedly lost piece of luggage. The court granted American’s motion for summary judgment, concluding that because its statements to plaintiff were substantially true, none was actionable under New Hampshire common law. 12 pages. Judge Steven J. McAuliffe.


DEFAULT JUDGMENT
7/22/13
United States Securities and Exchange Commission v. Hor Chong (David) Boey
Case No. 07-cv-39-SM, Opinion No. 2013 DNH 101

In this securities fraud enforcement action, SEC sought default judgment and order for relief against defaulted defendant. Court granted in part, and denied in part, the SEC’s motion. Court ordered disgorgement of profits and prejudgment interest, $10,000 civil penalty, and five-year officer and director bar. Court denied SEC’s request for a permanent injunction, finding that the relief ordered would serve as a sufficient deterrent, especially in light of fact that defendant had not committed further violations in the twelve years since his illegal conduct. 10 pages. Judge Steven J. McAuliffe.


FORECLOSURE
7/24/13
Mary Hersey v. WPB Partners, LLC
Case No. 11-cv-207-SM, Opinion No. 2013 DNH 102

Plaintiff property owner brought claims against Massachusetts mortgage lender alleging violation of Massachusetts usury statue, New Hampshire and Massachusetts statutes regulating mortgage brokers and lenders, federal Real Estate Settlement Procedures Act (“RESPA”), and breach of contract. Defendant lender moved to dismiss all claims. The Court granted the motion as to all but the usury claim.

The Court held that the complaint failed to state a claim under the Massachusetts statute regulating brokers and lenders because, contrary to the requirements of that statute, the property was not located in Massachusetts. The complaint also failed to state a claim under the New Hampshire statute regulating mortgage bankers and brokers, RSA 397-A:2, because that statute does not provide for a private right of action. The Court dismissed the RESPA claim because plaintiff pled no facts to support a claim under that statute. The Court further held that plaintiff’s breach of contract claim was barred under New Hampshire’s three-year statute of limitations, RSA 508:4(I). Under New Hampshire’s choice of law principles, the parties’ contractual choice of law provision — which specified that Massachusetts law would govern the parties’ disputes — did not control procedural issues. Because limitations issues are procedural under New Hampshire law, that forum state’s three-year limitations statute was applied.

The Court held that the complaint stated a claim under the Massachusetts’ usury statute because it alleged facts which gave rise to a supportable inference that defendant charged plaintiff in excess of the statutory maximum, and because plaintiff was not required to plead defendant’s failure to file a notice with the state attorney general of its intention to charge an excessive rate. 7 pages. Judge Steven J. McAuliffe.


JURISDICTION (Subject Matter)
7/3/13
Michael Gans v. Amy Gant
Case No. 12-cv-279-SM, Opinion No. 2013 DNH 093

Plaintiff brought suit to recover on three loans that his father had extended to his uncle in the 1980’s and 1990’s. The court dismissed the complaint, concluding that plaintiff failed to properly allege the existence of diversity jurisdiction. Moreover, the court noted that even if it could properly exercise subject matter jurisdiction over plaintiff’s claims, each was plainly barred by New Hampshire’s statute of limitations. 17 pages. Judge Steven J. McAuliffe.


TORTS
7/25/13
Larry R. Mailhot v. American Red Cross
Case No. 12-cv-103-SM, Opinion No. 2013 DNH 103

Pro se plaintiff brought suit against The American Red Cross, claiming he suffered permanent and painful nerve damage after a phlebotomist negligently inserted a needle into his arm. Importantly, however, he failed to disclose an expert medical witness to support his claims. Defendant moved for summary judgment, asserting that, as a matter of law, plaintiff could not prevail without a medical expert. The court agreed, noting that under New Hampshire law, any “action for medical injury” against a “medical care provider” must be supported by expert testimony of a competent witness. See N.H. Rev. Stat. Ann. 507-E:2. Defendant’s motion for summary judgment granted. 7 pages. Judge Steven J. McAuliffe.

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