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Bar News - November 15, 2013

US District Court Decision Listing: October 2013

* Published

Frederick Fortin v. Town of Hampton, et al.
Case No. 12-cv-315-PB, Opinion No. 2013 DNH 141

Plaintiff sued three Hampton police officers and the Town of Hampton. He asserted claims against the officers for false arrest and excessive force in violation of the Fourth Amendment, retaliation in violation of the First Amendment, and state law claims of false arrest, false imprisonment, assault, and battery. He also claimed that the Town is vicariously liable for the officers’ state torts. The court found that the false arrest and false imprisonment claims were barred because the plaintiff pleaded guilty to, and was convicted of, disorderly conduct based on the actions that led to his arrest. The court further found that the plaintiff had presented insufficient evidence to support his claim that an otherwise lawful arrest would not have occurred but for the officers’ alleged retaliatory motivation. Finally, the court found that the plaintiff had presented sufficient evidence to survive summary judgment with respect to his assault, battery, and excessive force claims against the two arresting officers and vicariously against the Town, but not against a third police officer. The court thus granted the defendants’ motion for summary judgement in part and denied it in part. 4 pages. Judge Paul J. Barbadoro.

United States v. Robert Joubert
Criminal No. 12-cr-142-JL, Opinion No. 2013 DNH 143*

In advance of his trial on three counts of sexual exploitation of a child and one count of possession of child pornography, the defendant moved in limine to exclude evidence of his sexual misconduct with minors other than the alleged victim and evidence that he took non-pornographic photos and videos of children. The court denied both requests. It held, first, that Federal Rule of Evidence 414(a) permitted the prosecution to use evidence of the defendant’s sexual misconduct with minors other than the alleged victim to show that he had a propensity to engage in such conduct, and that the probative value of such evidence was not substantially outweighed by the danger of unfair prejudice. It further held that evidence that the defendant produced non-pornographic photos and videos of children was relevant to show that the defendant had a prurient interest in young boys and a fixation on the alleged victim in particular. The court concluded that the admission of such evidence would neither distract the jury nor result in unfair prejudice, given that the prosecution would introduce the much more inflammatory pornographic images that formed the basis for the charges. 12 Pages. Judge Joseph N. Laplante.

Automated Facilities Management Corporation v. Smartware Group, Inc., et al.
Case No. 12-cv-327-PB, Opinion No. 2013 DNH 138

Automated Facilities Management Corporation (“AFMC”), the exclusive licensee of several patents, has sued Smartware Group, Inc., for patent infringement. Smartware responded with a counterclaim against AFMC and a third-party complaint against Tangopoint, Inc., seeking a declaratory judgment of non-infringement and patent invalidity against both defendants. Tangopoint moved to dismiss the third-party complaint, claiming that the court lacks personal jurisdiction. Tangopoint argues that Smartware failed to identify facts sufficient to support the conclusory assertion that Tangopoint purposefully directed activities at residents of New Hampshire. Smartware argues that Tangopoint is subject to jurisdiction by virtue of their licensing agreement, which allowed AFMC to bring an infringement action in this district. The court found that a close examination of the licensing agreement reveals that Tangopoint lacks sufficient control over AFMC to permit AFMC’s forum-based activities to be attributed to Tangopoint. The court similarly rejected Smartware’s agency argument due to Tangopoint’s lack of control over AFMC. The court thus found it lacked personal jurisdiction over Tangopoint, and granted Tangopoint’s motion to dismiss. 13 pages. Judge Paul J. Barbadoro.

Terry Bryant v. Liberty Mutual Group, Inc.
Case No. 11-cv-217-SM, Opinion No. 2013 DNH 142

After prevailing at summary judgment by demonstrating that plaintiff’s workplace discrimination claims were barred by a general release she executed upon her separation from employment, defendant filed a motion for sanctions and attorney’s fees under Rule 11 of the Federal Rules of Civil Procedure. The court denied that motion, concluding that plaintiff’s efforts to invalidate the release were not so weak, or frivolous, or lacking in factual or legal support as to warrant the imposition of sanctions. Nor was there evidence that they were advanced for an improper purpose or that counsel conducted a culpably inadequate investigation prior to filing suit. 4 pages. Judge Steven J. McAuliffe.

Duncan v. SSA
Civil No. 12-cv-431-JL, Opinion No. 2013 DNH 139

On appeal from the Social Security Administration’s denial of the claimant’s application for disability insurance benefits, the court affirmed the decision of the Administrative Law Judge (“ALJ”). The court rejected the claimant’s argument that the ALJ had erred by relying upon the testimony of a vocational expert as to the prevalence and demands of particular occupations, rather than the Dictionary of Occupational Titles (“DOT”). The court held that although Social Security regulations provide that the ALJ will take notice of the DOT, they do not require the ALJ to rely upon or cite to the DOT, and allow the ALJ to instead rely upon expert testimony if there is a reasonable explanation for any discrepancy between the DOT and the expert’s testimony. Because the ALJ had justifiably found that there was a reasonable explanation for the deviations between the expert’s testimony and the DOT, there was no error. 9 Pages. Judge Joseph N. Laplante.

Nancy Montemerlo v. Goffstown School District, SAU #19
Case No. 12-cv-13-PB, Opinion No. 2013 DNH 134

Nancy Montemerlo, a former teacher in the Goffstown School District, has sued the District for, among other things, allegedly failing to accommodate her disabilities as required by the Americans with Disabilities Act and the New Hampshire Law Against Discrimination. The District moved for summary judgment on all counts, and Montemerlo contested the District’s failure to accommodate her disabilities by denying her May 2009 transfer request to a position as a fourth grade teacher and denying her request in the spring of 2011 to use her diabetes pump and test her blood glucose level as needed during school hours. The court found that Montemerlo adequately argued that she was qualified for the fourth grade teaching position and sufficiently put the District on notice of her request for accommodation so as to defeat summary judgment on the transfer claims. The court granted summary judgment on the diabetes testing claim, finding that the record failed to include any evidence suggesting that the District ever denied a requested accommodation by Montemerlo for classroom coverage to test her blood. 28 pages. Judge Paul J. Barbadoro.

Brenda L. Rand v. Town of Exeter, et al.
Case No. 11-cv-55-PB, Opinion No. 2013 DNH 133

Plaintiff sued her former employer, the Town of Exeter, as well as a coworker and supervisors. She alleged that the coworker sexually assaulted her and that the Town and her supervisors failed to properly respond to her sexual harassment complaint and retaliated against her when she complained of the harassment. In addition to Title VII and state law hostile work environment sexual harassment and retaliation claims, Plaintiff brought several state common law claims. Defendants moved for summary judgment. The court granted the motion with respect to all claims except Plaintiff’s retaliation and wrongful termination claims against the Town and her assault and intentional infliction of emotional distress claims against the coworker, finding a genuine factual dispute as to those issues. 30 pages. Judge Paul J. Barbadoro.

David Johnson v. Weare Police Department; Town of Weare, NH; and Officer Frank Jones
Case No. 12-cv-32-SM, Opinion No. 2013 DNH 140

Pro se plaintiff brought suit against the Town of Weare, its police department, and one of its officers, claiming his constitutional rights were violated when he was subjected to false arrest, excessive force, and an unreasonable search and seizure. Defendants moved for summary judgment and, because plaintiff failed to object, the court took defendants’ statement of facts as admitted. Based upon those uncontested facts, it was plain that defendants did not violate any of plaintiff’s constitutional rights when police officers arrested him, searched him, and conducted an inventory search of his vehicle. Motion for summary judgment granted. 15 pages. Judge Steven J. McAuliffe.

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