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Bar News - December 13, 2013


US District Court Decision Listing: November 2013

* Published

BANKRUPTCY LAW
11/26/13
Randall D. and Dawn M. Pelletier v. U.S. Bank National Association et al.
Case No. 13-cv-69-JL, Opinion No. 2013 DNH 162

The plaintiffs appealed a decision by the Bankruptcy Court to grant summary judgment against them in their adversary proceeding there, which alleged that the defendant was not the holder of the promissory note secured by a mortgage on their property. The Bankruptcy Court ruled that the Pelletiers were judicially estopped from making that claim because they had executed - and the Bankruptcy Court had endorsed - a stipulation in their main bankruptcy case that, among other things, the defendant was the holder of the mortgage securing the note. In affirming, this court ruled that the Bankruptcy Court did not abuse its discretion in applying judicial estoppel, particularly where - at the time they executed the stipulation - the plaintiffs had already filed a motion challenging the defendant’s interest in the note and mortgage, and been provided with the documents on which the defendant relied to claim that interest. 16 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS (Americans with Disabilities Act)
11/13/13
Christyna Faulkner, MD v. Mary Hitchcock Memorial Hospital, et al.
Case No. 12-cv-482-SM, Opinion No. 2013 DNH 152

Physician brought suit against hospital and several other physicians alleging that they unlawfully disclosed her medical disability to third parties without her consent and wrongfully terminated her from the hospital’s residency program. Defendants filed a partial motion for summary judgment, arguing that plaintiff’s common law wrongful discharge claim was preempted by New Hampshire’s anti-discrimination statute, RSA 354:A-7. The court denied the motion, finding that defendants failed to demonstrate that the state legislature intended the statute to preempt the common law claim. 5 pages. Judge Steven J. McAuliffe.


CIVIL RIGHTS § 1983: PRISONER
11/7/13
Duane L. Fox v. Superintendent, Strafford County Dept. of Corrections, et al.
Case No. 11-cv-295-SM, Opinion No. 2013 DNH 149

Former pretrial detainee who had been housed at the Strafford County House of Corrections brought suit alleging that various corrections officers violated his constitutionally protected rights by showing deliberate indifference to his security needs. As a consequence, said plaintiff, he was assaulted by another inmate. Defendants moved for summary judgment, asserting that plaintiff failed to exhaust available prison administrative remedies and, therefore, his claims were barred by the Prison Litigation Reform Act. The court agreed and granted defendants’ motion. 8 pages. Judge Steven J. McAuliffe.


CONSTITUTIONAL LAW
11/8/13
Monica Banerjee v. Town of Wilmot, NH
Case No. 13-cv-203-PB, Opinion No. 2013 DNH 153

Monica Banerjee originally 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 her use of a building on her property. After the court dismissed these claims, Banerjee filed a motion seeking permission to amend her complaint. She sought to add certain factual claims to support her dismissed due process claims, to include a First Amendment retaliation claim, and to add a “class of one” equal protection claim. The court rejected all arguments, noting that none of her new allegations would affect the court’s prior rulings, that she failed to plead any facts to support a claim that defendants retaliated against her for exercising her First Amendment rights, and that she failed to sufficiently allege that she was treated differently from other similarly situated landowners. The court thus denied the motion to amend and dismissed Banerjee’s claims without prejudice to her right to pursue her claims in state court. 3 pages. Judge Paul J. Barbadoro.


EVIDENCE
11/14/12 United States of America v. Jonathan Tanguay
Case No. 11-cv-173-JL, Opinion No. 2013 DNH 147*

Defendant Jonathan Tanguay, facing trial on a single charge of possessing child pornography, sought to exclude from his trial other materials that, like the alleged pornography, had also been found on a laptop computer or other digital storage devices seized from his home. These materials did not constitute illegal child pornography, but were similar in character; they included graphic stories of sex acts between adult men and boys and sexually suggestive or explicit photographs of young-looking, though adult, subjects. The court ruled that Tanguay’s possession of these materials, on the very same laptop and other devices where the illegal child pornography was discovered, was admissible, under Rule 404(b) of the Federal Rules of Evidence, to show that he knowingly possessed the illegal child pornography. The court further ruled that the probative value of the evidence on that point was not substantially outweighed by the risk of unfair prejudice. 19 pages. Judge Joseph N. Laplante.


FORECLOSURE
11/20/13
John J. Mudge, Jr. and Lisa Mudge v. Bank of America, N.A. and TD Bank, N.A.
Case No. 13-cv-421-JD, Opinion No. 2013 DNH 159

The Mudges brought claims against Bank of America and TD Bank arising from the defendants’ conduct in handling the Mudges’ mortgages and in attempting to foreclose on their home. TD Bank moved to dismiss the claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation alleged against it. In granting the motion to dismiss, the court held that the Mudges did not allege a claim for breach of contract, that they did not identify a grant of discretion in the mortgage that was exercised unreasonably, and that they did not allege that TD Bank made a representation knowing it was false or that their reliance on an alleged misrepresentation caused any injury. Judge Joseph A. DiClerico, Jr. 12 pages.


FORECLOSURE - REMAND, EVICTION, AND CONVERSION
11/26/13
Deborah A. Neenan v. CitiMortgage, Inc.
Case No. 13-cv-435-JD, Opinion No. 2013 DNH 163

After her home was sold in a foreclosure sale, Neenan filed suit in state court against CitiMortgage seeking a temporary restraining order and alleging claims of criminal trespass, theft of utility services, violation of the New Hampshire Consumer Protection Act, conversion, and negligent and intentional infliction of emotional distress. CitiMortgage removed the case to this court and moved to dismiss Neenan’s claims. The court held that no private cause of action existed for criminal trespass and theft of utility services, that CitiMortgage was not subject to the Consumer Protection Act, that no grounds existed for the wrongful eviction claim because CitiMortgage was not Neenan’s landlord, that no conversion occurred of the real property, and that Neenan had not alleged grounds for infliction of emotional distress. The court did not dismiss the claim for conversion of Neenan’s personal property, however, because based on the allegations in the complaint it was not clear that Neenan had intended to abandon the personal property she left in her former home. Judge Joseph A. DiClerico, Jr. 17 pages.


JURISDICTION (Federal Question)
11/26/13
Dirck Hecking v. New Hampshire Conjunctive Parties, et al.
Case No. 13-cv-338-SM, Opinion No. 2013 DNH 164

Plaintiff sued New Hampshire state officials and private attorneys and their law firms alleging violations of state and federal laws. Defendants moved to dismiss on grounds that the claims were untimely. The court granted the motions as to the federal claims, finding that they were filed beyond the time allowed for bringing claims under the Civil Rights Act, 42 U.S.C. Sec. 1983, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. Sec. 1964. The court declined to exercise supplemental jurisdiction over plaintiff’s state law claims. 6 pages. Judge Steven J. McAuliffe.


JURISDICTION (Subject Matter)
11/8/13
Dirck Hecking v. New Hampshire Coalition for Occupational Safety and Health and Brian Mitchell
Case No. 13-cv-366-SM, Opinion No. 2013 DNH 151

Plaintiff brought suit against a New Hampshire non-profit organization and its officer. Plaintiff invoked the court’s diversity jurisdiction, 28 U.S.C. Sec. 1332, and alleged generally that the amount in controversy exceeded $75,000. The court, sua sponte, dismissed the case for failure to plausibly allege that the value of plaintiff’s claim met the jurisdictional threshold. The court held that the complaint did not indicate, directly or by plausible inference, any connection between defendants’ alleged conduct and some injury to plaintiff. 3 pages. Judge Steven J. McAuliffe.


REMOVAL (Remand)
11/15/13
R & N Check Corp. v. Bottomline Technologies, Inc.
Case No. 13-cv-118-SM, Opinion No. 2013 DNH 154

Plaintiff (a Nevada corporation) filed suit in state court, alleging that defendant (a Delaware corporation, with a principal place of business in New Hampshire) breached the parties’ settlement agreement in an underlying patent dispute. Defendant removed the action to federal court, invoking the court’s federal question (patent) jurisdiction, as well as its diversity jurisdiction. The court remanded the proceeding to state court, concluding that it was improvidently removed. Specifically, it held that the “forum defendant rule” precluded defendant from removing the action on diversity grounds and, because the parties’ breach of contract dispute did not turn on any issue of patent law, the court lacked federal question jurisdiction. 9 pages. Judge Steven J. McAuliffe.


SANCTIONS
11/7/13
Margaret Trefethen v. Liberty Mutual Group, Inc.
Case No. 11-cv-225-SM, Opinion No. 2013 DNH 148

After prevailing at the summary judgment stage, defendant moved the court to impose sanctions on plaintiff under Rule 11. The court denied that motion, noting that Rule 11 sanctions are reserved for cases in which a party or attorney has made arguments for an improper purpose, advanced frivolous claims, or asserted factual allegations without adequate evidentiary support. Here, however, the court concluded that plaintiff’s claims - although weak - were adequately supported in both law and fact. Motion for sanctions denied. 4 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY
11/1/13
Kenneth M. Comeau v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 12-cv-478-JL, Opinion No. 2013 DNH 145

The plaintiff, Kenneth M. Comeau, appealed a decision by an Administrative Law Judge at the Social Security Administration, finding that he was not disabled despite his post-traumatic stress disorder. The court ruled, however, that the ALJ had properly rejected an opinion by Comeau’s treating psychiatrist that he had a “moderately severe” degree of impairment in his ability to relate to other people, particularly where the psychiatrist also found that Comeau had no “marked limitations” in several related areas (including communicating clearly and effectively, cooperating with others, and responding without fear to strangers). 26 pages. Judge Joseph N. Laplante.


11/1/13
Brenda L. Corson v. U.S. Social Security Administration, Commissioner
Case No. 12-cv-371-PB, Opinion No. 2013 DNH 144

Brenda Corson sought judicial review of a ruling by the Commissioner of Social Security denying her application for disability insurance benefits (“DIB”) because she failed to prove that she was disabled at any point prior to the last date she was eligible for DIB. Corson claims that the Administrative Law Judge (“ALJ”) failed to properly credit evidence from a treating medical source and failed to properly consider lay evidence. She additionally argues that the ALJ’s residual functional capacity (“RFC”) assessment is not supported by substantial evidence because it failed to account for all of Corson’s functional limitations. The court denied Corson’s request and affirmed the decision of the Commissioner. First, the court found that the ALJ properly afforded the opinions both careful consideration and adequate weight. The court similarly found that the ALJ adequately considered lay testimony presented by Corson’s friends and relatives. Because the ALJ properly weighed the opinions and explained in detail the extent to which he discredited Corson’s testimony, he was justified in omitting any delusional impairments from the RFC. The court found that the ALJ properly relied upon substantial evidence in the record to arrive at his decision, and granted the Commissioner’s motion to affirm judgment and deny Corson’s motion to reverse. 32 pages. Judge Paul J. Barbadoro.


11/8/13
Tracey Quimby v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 12-cv-428-PB, Opinion No. 2013 DNH 150

Tracey Quimby appealed the denial of her application for social security disability insurance benefits, arguing that the ALJ failed to properly evaluate the medical evidence, relied on his own lay assessment of the medical record in formulating Quimby’s non-exertional limitations, and improperly rejected the opinions of Quimby’s treating physicians. The court concluded that the agency relied on inconsistent testimony from a vocational expert and consequently failed to meet its burden to demonstrate that work existed in the national economy that Quimby could perform. The court remanded the case to the Social Security Administration for further proceedings consistent with the decision. 36 pages. Judge Paul J. Barbadoro.


11/8/13
Hope A. Charron v. Michael J. Astrue, Commmissioner, Social Security Administration
Case No. 13-cv-36-PB, Opinion No. 2013 DNH 156

Hope A. Charron appealed the denial of her application for supplemental security income benefits, arguing that the ALJ made a residual functional capacity determination that failed to account for all of her non-exertional limitations and misapplied the Medical-Vocational Guidelines as a framework for her decision. The court concluded that the agency ignored significant medical evidence regarding the functional limitations of Charron’s vision impairments and consequently failed to meet its burden to demonstrate that work existed in the national economy that Charron could perform. The court remanded the case to the Social Security Administration for further proceedings consistent with the decision. 18 pages. Judge Paul J. Barbadoro.


11/18/13
Daniel Martel v. U.S. Social Security Administration, Commissioner
Case No. 13-cv-48-PB, Opinion No. 2013 DNH 157

Daniel Martel sought judicial review of a ruling by the Social Security Commissioner denying his application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Martel claimed that the findings of the Administrative Law Judge (“ALJ”) regarding his residual functional capacity and his ability to perform past relevant work were not supported by substantial evidence. The court denied Martel’s request and affirmed the decision of the Commissioner. In doing so, the court found that the ALJ adequately weighed medical opinions and properly accounted for Martel’s alleged depressive disorder. The ALJ also adequately explained his severity finding regarding Martel’s hepatitis and the limiting effects of Martel’s mental impairments. The court then upheld the ALJ’s findings at step four, finding that the ALJ permissibly found that Martel remained able to work at his previous position as a general laborer. The court thus granted the Commissioner’s motion to affirm judgment and deny Corson’s motion to reverse. 42 pages. Judge Paul J. Barbadoro.


11/25/13
Dylan Watkinson v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 12-cv-501-JL, Opinion No. 2013 DNH 161

The plaintiff, Dylan Watkinson, appealed a decision by an Administrative Law Judge at the Social Security Administration, finding that he was not disabled despite a number of impairments, including obesity, joint pain, and edema. The court ruled, however, that the ALJ had properly rejected opinions from Watkinson’s treating physicians, as well as from non-medical sources, to the limited extent they were inconsistent with the ALJ’s finding that Watkinson was capable of full-time sedentary work with the option to sit or stand as needed. 11 pages. Judge Joseph N. Laplante.


11/4/13
Lori L. Ormond v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 12-cv-361-SM, Opinion No. 2013 DNH 146

Claimant appealed the decision of the Commissioner denying her application for Social Security benefits. The court affirmed the Commissioner’s decision, holding that the administrative law judge (“ALJ”) did not err in finding that plaintiff could perform her past work as a payroll clerk despite her hearing impairment. The court held that the ALJ fulfilled his duty to fully develop the record as to the reason for plaintiff’s termination from her job and found that the ALJ’s failure to make specific findings as to the demands of plaintiff’s prior job was harmless error. 15 pages. Judge Steven J. McAuliffe.


WRONGFUL FORECLOSURE
11/20/13
J. Kirk Worrall, III and Cecile Worrall v. Federal National Mortgage Association, et al.
Case No. 13-cv-330-JD, Opinion No. 2013 DNH 158

The Worralls brought claims against FNMA and Nationstar Mortgage, LLC, along with claims against two law firms, arising from the circumstances surrounding a scheduled foreclosure on their mortgaged property. FNMA and Nationstar moved to dismiss the four wrongful foreclosure claims and claims for breach of contract and promissory estoppel alleged against them. In granting the motion to dismiss, the court held that the Worralls had not alleged that a foreclosure had occurred, that the Worralls did not allege facts to show that FNMA lacked authority to foreclose, that the Worralls’ reliance on state superior court decisions was misplaced, that their “dual tracking” theory was not supported by application of judicial estoppel, that they did not allege a claim for breach of contract, and that no promise was made or broken to support their promissory estoppel claim. Judge Joseph A. DiClerico, Jr. 18 pages.

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