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Bar News - January 15, 2014

US District Court Decision Listing: December 2013

* Published

Lintner et al. v. Bank of New York Mellon, Civil No. 12-cv-462-JL
Opinion No. 2013 DNH 169

The defendants moved to dismiss this action seeking specific performance of a contract for the sale of real estate, arguing that the parties voluntarily terminated the contract and that, in any event, the terms of the contract expressly limited the plaintiffs’ remedy for any breach to return of their earnest money deposit (which return the plaintiffs expressly alleged had already been made). The court denied the motion. It observed that although the plaintiffs had indeed sought to terminate the agreement, signing a document to that effect, the defendants had never countersigned it and instead assured the plaintiffs that they intended to follow through with the contract. Because the plaintiffs could not unilaterally cancel the contract, the court held, the plaintiffs’ request to terminate the contract had no effect on its continuing validity. And, although the defendants identified a contractual provision that could be read to limit the plaintiffs’ remedy for any and all breaches to return of their deposit, the court held that the plaintiffs had proffered a plausible alternative interpretation of that provision that would limit their remedies only in cases where the defendants breached the contract for reasons beyond their control (which, based upon the plaintiffs’ allegations, was not the case here). 18 Pages. Judge Joseph N. Laplante.

Hubbard v. Tyco Integrated Cable Systems, Inc.
Case No. 10-cv-365-LM, Opinion No. 2013 DNH 165

In this national-origin discrimination case, brought under federal and state law, the plaintiff sued his former employer, asserting that he was subjected to a hostile work environment, suspended, and ultimately discharged because he is British, and that he was retaliated against for complaining about discrimination in the workplace. Because Hubbard failed to establish that the reasons Tyco gave for suspending and discharging him were pretextual, the court granted Tyco summary judgment on Hubbard’s discrimination claim. Because Hubbard failed to satisfy the causation element of his retaliation claim, Tyco was granted summary judgment on that claim as well. All that remains for trial is Hubbard’s hostile-work-environment claim. 58 pages. Judge Landya B. McCafferty.

Michael A. Rowe v. Liberty Mutual Group, Inc.
Civil No. 11-cv-366-JL, Opinion No. 2013 DNH 168

The defendant moved for summary judgment on the plaintiff’s claims for wrongful termination and violation of the state Whistleblowers’ Protection Act, N.H. Rev. Stat. Ann. § 275-E:2, arguing that the plaintiff lacked evidence that the employees involved in the decision to fire him knew of his allegedly protected activity. Granting the motion, the court ruled that the plaintiff could not avoid summary judgment by speculating that news of his allegedly protected activity must have passed at a meeting between an employee who was aware of that activity and a person who was subsequently involved in the decision to fire the plaintiff, because (1) all of the evidence of record showed that his allegedly protected activity was not in fact discussed at the meeting and (2) the court had granted the plaintiff’s motion to compel the employees at the meeting to provide further deposition testimony as to the meeting, but the plaintiff voluntarily decided to forego the re-opened depositions. 45 pages. Judge Joseph N. Laplante.

Conservation Law Foundation v. Public Service of New Hampshire
Civil No. 11-cv-353-JL, Opinion No. 2013 DNH 167

The defendant moved to dismiss this citizen suit under the federal Clean Air Act (“CAA”), which alleged that the defendant operated its coal-fired power plant without the necessary permits, for failure to state a claim. The court denied the motion, rejecting the underlying premise of the defendant’s argument, i.e., that the defendant was subject to a federal permitting regime first established in late 2002. Noting that states bear the primary responsibility for implementing the CAA, the court held that New Hampshire’s environmental regulations incorporated the pre-2002 version of the federal permitting regime. The court also granted the plaintiff leave to amend its complaint, concluding–-contrary to the defendant’s arguments in opposition to the amendment–-that the plaintiff’s notice of intent to bring an action under the CAA satisfied the statutory requirements and that the plaintiff’s delay in seeking leave to amend was not unreasonable. 25 Pages. Judge Joseph N. Laplante.

Ameen v. Amphenol Printed Circuits, Inc.
Case No. 12-cv-365-LM, Opinion No. 2013 DNH 177

Summary judgment was granted to the employer in this FMLA case due to the plaintiff’s failure to establish retaliatory animus on the part of the decisionmaker who terminated his employment. 20 pages. Judge Landya B. McCafferty.

Rossop, et al. v. Bank of America, et al.
Case No. 13-cv-112-PB, Opinion No. 2013 DNH 172

Plaintiffs brought a variety of claims against several parties involved in the origination, assignment, and servicing of the plaintiffs’ home loan and mortgage and a subsequent home equity loan. Plaintiffs alleged various defects in the origination, assignment, and foreclosure of the first loan and mortgage. Summary judgment was granted to the servicer of the home equity loan because the servicer had no relation to the first loan and mortgage or the foreclosure sale of which the plaintiffs complained. 9 pages. Judge Paul J. Barbadoro.

Jeffrey Bradley v. Wells Fargo Bank, N.A. et al.
Case No. 12-cv-127-PB, Opinion No. 2013 DNH 173

Jeffrey Bradley lost his home to foreclosure and sued his mortgage lender, two assignees of his mortgage, and two entities involved in servicing his loan. After his mortgage holder and servicer at the time of foreclosure answered his complaint, the remaining defendants – Wells Fargo Bank, N.A., Wells Fargo Trustee, and Ameriquest Mortgage Company all moved to dismiss. Bradley then filed a motion to join HomEq Servicing, a prior servicer, and added several additional claims against all defendants to a proposed second amended complaint. The court granted each defendants’ motion to dismiss, finding that the claims focused on the foreclosure process and the eviction following foreclosure, both of which were addressed by answering parties. The court also rejected Bradley’s argument concerning an alleged failure to provide a payoff amount as insufficiently alleged to state a viable claim for relief. The court then denied Bradley’s motion for joinder of HomEq, and rejected each of Bradley’s new proposed claims – questioning the validity of assignment and asserting fraud, violations of the Real Estate Settlement Procedures Act, and breach of the duty of good faith and fair dealing - as futile. 16 Pages. Judge Paul J. Barbadoro.

Michaud v. HSBC Bank, USA, et al.
Case No. 13-cv-378-PB, Opinion No. 2013 DNH 175

Plaintiff sought to enforce the terms of an alleged loan modification agreement against HSBC, the holder of his home loan and mortgage, and to enjoin the foreclosure sale of his home. The court granted HSBC’s motion to dismiss. The plaintiff failed to state a plausible claim that the alleged loan modification offer originated from HSBC or its agent, and the plaintiff’s alternative claim that foreclosure was precluded due to ongoing loan modification negotiations did not present a viable cause of action. 9 pages. Judge Paul J. Barbadoro.

City of Brockton Retirement System et al. v. CVS Caremark Corporation et al., D.R.I.
Civil No. 09-cv-554-JL, Opinion No. 2013 DNH 178

The plaintiffs, disappointed investors in the stock of CVS-Caremark Corporation, sued the corporation and some of its officers under the Exchange Act and Rule 10b-5. The plaintiffs claimed that the defendants’ allegedly fraudulent statements and omissions about the integration of the CVS and Caremark systems following their merger had artificially inflated the company’s share price until the day of its third-quarter 2009 earnings call, when it was revealed that, post-merger, company had lost significant business due to an unsuccessful integration. The defendants moved to dismiss, arguing that the plaintiffs had failed to properly plead (1) any actionably false statement as to the success of the integration or (2) facts giving rise to a strong inference of scienter on the part of the defendants. Denying the motion, the court ruled that the plaintiffs had pled at least one such statement (the CEO’s public denial that problems with the integration had led it to re-price its contracts with several customers), as well as facts giving rise to a strong inference that the CEO knew that statement was false when it was made. 13 pages. Judge Joseph N. Laplante.

NOTE: The following were printed in the February 2014 Bar News.

CIVIL RIGHTS § 1983: Prisoner
Abu B. Kargbo v. Hillsborough County Department of Corrections, et al.
Case No. 11-cv-130-SM, Opinion No. 2013 DNH 170

Plaintiff alleges that while he was a pretrial detainee at the Hillsborough County House of Corrections, he was, on two separate occasions, the victim of constitutionally excessive force. Defendants moved for summary judgment. That motion was granted in part, and denied in part. As to the first alleged incident of excessive force, the court held that plaintiff failed to properly exhaust available prison administrative remedies. As to the second, however, he did exhaust. And, the existence of genuinely disputed material facts surrounding that second incident precludes the entry of summary judgment in favor of either party. 12 pages. Judge Steven J. McAuliffe.

Matthew R. Morse v. TBC Retail Group, Inc.
Case No. 13-cv-65-SM, Opinion No. 2013 DNH 174

Plaintiff brought suit under the FMLA, alleging that his former employer unlawfully terminated his employment in retaliation for his having taken protected leave. His former employer moved for summary judgment, asserting that plaintiff was not an “eligible employee” under the FMLA and, therefore, could not pursue a “retaliation” claim under that statute. Because his former employer did not employ the requisite number of people, plaintiff plainly did not qualify as an eligible employee under the FMLA, and so could not sue to enforce its protection. Defendant’s motion for summary judgment granted. 15 pages. Judge Steven J. McAuliffe.

In re: Dial Complete Marketing and Sales Practices Litigation
Case No. 11-md-2263-SM, Opinion No. 2013 DNH 176

In consolidated multi district litigation against manufacturer of anti bacterial soap, plaintiff consumers proffered the opinions of an epidemiologist in support of their motion for class certification. Defendant moved to exclude expert’s report and testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm. The court denied that motion, finding that epidemiologist was qualified to offer her opinion regarding what consumers believe the word “germ” means, as well as her opinion about the effectiveness of defendant’s product in killing “germs.” The court also found that expert’s opinions were both reliable and relevant. 7 pages. Judge Steven J. McAuliffe.

Milestone Engineering & Construction, Inc. v. Fire Equipment, Inc., and Everest Indemnity Ins. Co.
Case No. 13-cv-198-SM, Opinion No. 2013 DNH 171

Plaintiff contractor sued subcontractor and its liability insurer for breach of contract, breach of implied warranty, and negligence. Insurer moved to dismiss the single count against it for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The court denied the motion, finding that the complaint plausibly alleged that plaintiff was a third party beneficiary under subcontractor’s insurance policy. The court held that the complaint’s allegation that insurer conceded subcontractor’s liability was a specific factual allegation that must be accepted as true for purposes of motion to dismiss. 7 pages. Judge Steven J. McAuliffe.

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