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Bar News - October 18, 2013

US District Court Decision Listing: September 2013

* Published

Monica Banerjee v. Town of Wilmot, NH
Case No. 13-cv-203-PB, Opinion No. 2013 DNH 117

Plaintiff sued the Town of Wilmot for alleged procedural and substantive due process and Contract Clause violations arising from the Town’s issuance of a cease and desist order barring Plaintiff’s use of a building on her property. Defendant moved to dismiss for failure to state a claim. The court granted the motion with respect to the substantive due process and Contract Clause claims. It held that the Town’s actions did not shock the conscience; that the Plaintiff’s building permit was not a contract; that the Contract Clause does not apply to executive, rather than legislative, actions; and that the Contract Clause does not bar a Town’s exercise of its legitimate police powers. The Court granted Plaintiff fourteen days to show cause why her procedural due process claim should not also be dismissed. 6 pages. Judge Paul J. Barbadoro.

Amanda D., et al. v. New Hampshire Governor, et al.
Case No. 12-cv-53-SM, Opinion No. 2013 DNH 123P

Putative class representatives brought suit against the State of New Hampshire alleging deficiencies in the availability of community-based mental health services. They alleged a violation of Medicaid regulations and the integration mandate of the Americans With Disabilities Act. On plaintiffs’ motion for class certification, the court certified an ADA class, but denied certification as to the Medicaid claim. 46 pages. Judge Steven J. McAuliffe.

Calvin O. Davis, Jr. v. Town of New Durham, NH, et al.
Case No. 12-cv-171-SM, Opinion No. 2013 DNH 119

Plaintiff sued the Town of New Durham and its police chief for harassment and theft. He alleged numerous violations of his federal constitutional and state common law rights. Defendants moved for summary judgment on all claims. The court granted the motions with respect to the federal claims. It held that the plaintiff had not established that the Town condoned the alleged harassment and theft. The court further held that the Chief was entitled to qualified immunity. The court entered judgment in favor of all defendants on the federal claims and declined to exercise supplemental jurisdiction over the state law claims. 7 pages. Judge Steven J. McAuliffe.

Rolfs v. Home Depot U.S.A., Inc.
Case No. 11-cv-501-LM, Opinion No. 2013 DNH 121 P

Plaintiff sued his former employer for sex discrimination and retaliation, based upon conduct of plaintiff’s former supervisor, who made repeated crass suggestions that plaintiff, who was married, should attempt to have sex with one of his customers. Defendant was granted summary on plaintiff’s sex-discrimination claim (which was premised upon a hostile-work-environment theory), because plaintiff failed to show that supervisor treated women who were faithful to their spouses better than he treated men who were faithful. Defendant was also granted summary judgment on plaintiff’s retaliation claim because several instances of protected activity took place after the alleged acts of retaliation, plaintiff failed to establish causation element of prima facie case for retaliation, and plaintiff failed to establish that employer’s explanations for adverse employment actions were pretextual. 59 pages. Magistrate Judge Landya B. McCafferty.

Equal Employment Opportunity Commission v. Windmill International, Inc.
Case No. 11-cv-454-SM, Opinion No. 2013 DNH 116

The EEOC brought this civil action alleging that, in violation of the Americans with Disabilities Act ("ADA"), defendant fired one of its employees in response to learning that she suffered from a disabling medical condition. Defendant moved for summary judgment, asserting that the undisputed record evidence demonstrated that it had decided to fire the employee (for non-discriminatory, performance-related issues) long before she revealed that she suffered from a medical condition. The court agreed and granted defendant’s motion for judgment as a matter of law. 13 pages. Judge Steven J. McAuliffe.

Falk v. Life Insurance Co. of North America
Civil No. 12-cv-178-JL, Opinion No. 2013 DNH 124

The plaintiff appealed the denial of his application for long-term disability benefits under the Employee Retirement Income Security Act. The court, reviewing the administrative record de novo, granted judgment in favor of the defendant. Although the record indicated that the plaintiff suffered from back and neck ailments that limited his ability to work, the court concluded, consistent with the opinions of two independent physicians, that he was still capable of performing light duty work. Among other things, the court observed that the independent physicians, unlike the treating physicians upon whose opinions the plaintiff relied, were able to review all of the plaintiff’s medical records and surveillance video of the plaintiff. The plaintiff’s treating physicians, moreover, had not relied upon the results of any clinical testing of the plaintiff’s restrictions and limitations in rendering their opinions as to his capabilities, instead accepting the plaintiff’s own subjective complaints. 38 Pages. Judge Joseph N. Laplante.

Kurt West v. Bell Helicopter Textron et al.
Civil No. 10-cv-214-JNL, Opinion No. 2013 DNH 118*

The parties to a products liability action arising out of a helicopter crash, where plaintiff was the pilot, filed several motions seeking to exclude each others’ anticipated trial evidence. Deciding the motions, the court ruled, among other things, that (1) because damages for shortened life expectancy were not recoverable under New Hampshire law, and plaintiff had no claim for lost earnings, his proffered expert testimony as to his shortened life expectancy were inadmissible, (2) given lack of evidence that plaintiff’s cellphone use during fight had any effect on the crash, defendants could not present expert testimony that plaintiff’s cellphone use distracted him from flying, but they could present evidence that plaintiff used his cellphone insofar as it bore on his ability to perceive events during the flight and, hence, his reliability as a witness to those events, (3) defendant’s expert could not testify that plaintiff should not have received medical clearance to fly prior to the crash, given the lack of any causal connection between his medical condition and the crash, (4) plaintiff could present evidence of certain other accidents involving the same products, since those accidents fit plaintiffs’ experts’ theory of why defendants’ products were defective in a way that caused his crash, (5) plaintiff could not present evidence that those other crashes involved American military personnel, since that fact was unfairly prejudicial, (6) plaintiff could not present, or otherwise use at trial, the probable cause report of his accident by the National Transportation Safety Board, because a statute specifically prevents the use of those reports in civil actions for damages, 49 U.S.C. § 1154(b), and (7) anticipated testimony from plaintiff’s witnesses as to how to clean ice and snow from a helicopter and the like was expert testimony under Rule 702, not lay opinion testimony under Rule 701, and therefore could not be presented because it had not been properly disclosed. 61 pages. Judge Joseph N. Laplante.

New Hampshire Right to Life v. Dep’t of Health & Human Servs.
Civil No. 11-cv-595-JNL, Opinion No. 2013 DNH 132

The parties cross-moved for summary judgment on the plaintiff’s claim that the defendant, the United States Department of Health and Human Services, had improperly failed to disclose all of the documents the plaintiff had requested from the defendant under the Freedom of Information Act, 5 U.S.C.§ 522 (“FOIA”). The documents at issue concerned HHS’s decision to award a grant to Planned Parenthood of Northern New England on an non-competitive basis. Granting and denying each party’s motion in part, the court ruled that (1) it did not follow, from Planned Parenthood’s non-profit status alone, that the information it submitted to HHS could not be “commercial” under FOIA Exemption 4, 5 U.S.C. § 552(b)(4), (2) with one exception, HHS had shown that the information submitted by Planned Parenthood was also “confidential” under Exemption 4, (3) also with one exception, HHS had shown that other information it withheld was protected by the deliberate process privilege or the attorney-client privilege and therefore exempt from disclosure under FOIA exemption 5, and (4) again with one exception, HHS had shown that disclosing the rest of the information withheld would constitute a clearly unwarranted invasion of personal privacy (of Planned Parenthood’s lower level employees) so that it was exempt from disclosure under FOIA exemption 6. 49 pages. Judge Joseph N. Laplante.

Daniel Reppucci v. Winchester Police Department, et al.
Case No. 12-cv-316-SM, Opinion No. 2013 DNH 125

Plaintiff is a former full-time police officer for the Town of Winchester. In August of 2009, the Winchester Board of Selectmen concluded that he had engaged in misconduct and terminated his employment. He appealed that decision to the state superior court, which rejected each of his claims and affirmed the Board’s decision. Plaintiff then filed suit in this court, claiming he was the victim of wrongful termination and retaliatory discharge. He also said defendants deprived him of various constitutionally protected rights. The court concluded that plaintiff’s state law employment claims were barred by the Rooker-Feldman doctrine, as well as the doctrines of res judicata and collateral estoppel. The court also held that his federal "class-of-one" equal protection claim failed to state a viable cause of action, and his Monel-type claim against the municipal defendants was barred because no municipal employees violated his constitutional rights. Defendants’ motions to dismiss granted. 18 pages. Judge Steven J. McAuliffe.

Joseph Bourget d/b/a Bourget Amusement Company v. Hillsborough County 4H Foundation, Inc., et al.
Case No. 11-cv-88-SM, Opinion No. 2013 DNH 129

Plaintiff, carnival operator, sued 4H Foundation and seller and manufacturer of prefabricated steel building, for damage to his equipment resulting from building’s collapse under heavy snow-load conditions. He brought breach of contract and negligence claims against the Foundation, and negligence and breach of warranty claims against the seller and the manufacturer. All defendants moved for summary judgment. The court denied the Foundation’s motion, finding that there was a material factual dispute as to whether the Foundation’s agreement with plaintiff contained exculpatory language and an insurance requirement. The court granted the seller’s and manufacturer’s motions on grounds that plaintiff’s claims against them were untimely under New Hampshire’s construction statute of repose. The court found that, for purposes of that statute, the building was "substantially complete," and the limitations period began to run, when plaintiff first stored his equipment in it. 13 pages. Judge Steven J. McAuliffe.

Menachem Raitport and Crown Kosher Meat Market, Inc. v. Harbour Capital Corporation
Case No. 09-cv-156-SM, Opinion No. 2013 DNH 120

Plaintiff brought claims under the Telephone Consumer Protection Act alleging that defendant’s unsolicited and solicited fax advertisements did not contain the opt-out notice required by Federal Communication Commission regulations. The court, sua sponte, stayed the case pending the outcome of separate FCC proceedings addressing the question of whether the regulation is invalid as applied to solicited faxes. 3 pages. Judge Steven J. McAuliffe.

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