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Bar News - February 19, 2014


US District Court Decision Listing: January 2014

* Published

BANKRUPTCY APPEAL
1/10/14
Baboucar B. Taal v. St. Mary’s Bank, et al.
Case No. 13-cv-194-PB, Opinion No. 2014 DNH 003

Baboucar Taal sought appellate review of the bankruptcy court’s dismissal of his Chapter 13 bankruptcy petition. St. Mary’s Bank, Discover Bank, and the law firm of Niederman, Stanzel & Linzey opposed the petition. This court affirmed the bankruptcy court’s dismissal order, finding that the bankruptcy court appropriately set and enforced a deadline for timely filing an amended confirmation plan. Taal did not timely file an amended plan despite having notice that his case might be dismissed should he fail to do so by a set date. Taal’s other arguments also fail because this case centered upon the propriety of the bankruptcy court’s dismissal of Taal’s claim for failing to timely file and amended Chapter 13 plan. 11 Pages. Judge Paul J. Barbadoro


CRIMINAL CASE - MOTIONS TO SUPPRESS
1/28/14
United States of America v. Jon Hagstrom
Case No. 12-cr-45-1-SM, Opinion No. 2014 DNH 018

Defendant moved to suppress evidence that was discovered during the course of a Terry stop, claiming the stop was neither based upon reasonable suspicion, nor supported by articulable facts. He also moved to suppress evidence obtained from a subsequent search of his home pursuant to a warrant, saying it was fruit of the unlawful initial Terry stop. The court disagreed and denied both motions to suppress. The brief detention of defendant’s chartered jet at Hanscom Field was based upon reasonable suspicion, supported by articulable facts, that defendant was engaged in an unlawful drug distribution conspiracy. All evidence seized during the consensual search of defendant’s jet, and the subsequent search of his home, was obtained in a manner entirely consistent with constitutional requirements. 17 pages. Judge Steven J. McAuliffe.


EMPLOYMENT: TITLE VII
1/31/14
Equal Employment Opportunity Commission v. Fred Fuller Oil Company, Inc., et al.
Case No. 13-cv-295-PB, Opinion No. 2014 DNH 020

The Equal Employment Opportunity Commission sued Fred Fuller Oil Company, Inc. on behalf of two former employees, Nichole Wilkins and Beverly Mulcahey, alleging that owner Fred Fuller sexually harassed both women. It also charges that the company fired Mulcahey in retaliation for her close friend Wilkins’s complaint about the harassment she had suffered prior to her constructive discharge. Fuller Oil filed a motion for a partial judgment on the pleadings, challenging only Mulcahey’s claims. The court first found that Mulcahey’s sexual harassment claim cannot as a matter of law be found to be neither severe nor pervasive. It then found that Mulcahey alleged a close enough relationship with Wilkins to support a retaliation claim based on Wilkins’s sexual harassment complaint. On the basis of these findings the court rejected both arguments and denied Fuller Oil’s motion. 17 Pages. Judge Paul J. Barbadoro.


EMPLOYMENT LAW; CIVIL PROCEDURE
1/28/14
Jeanne Grivois v. Wentworth-Douglas Hospital and Gregory Walker
Civil No. 12-cv-131-JL, 2013 DNH 017

The defendants, a local hospital and its chief executive officer, moved for summary judgment on the plaintiff’s claims for wrongful termination and defamation. Denying the motion as to the wrongful termination claim, the court ruled that a rational jury could find that (1) public policy encouraged the plaintiff to complain to her managers that their changes to training and staffing procedures in the operating room had endangered patient safety, (2) the hospital fired Grivois for making those complaints, and (3) it acted out of bad faith, malice, or retaliation in doing so. Denying the motion as to the defamation claim, the court ruled that a rational jury could find that the CEO’s statement, to other employees, that the plaintiff had been fired because “she performed a heinous crime” (1) made or implied an actionable statement of fact, (2) was not protected by a qualified privilege, and (3) would tend to injure the plaintiff in her trade or business, allowing her to recover even without proof of actual damages. The court also denied the plaintiff’s motion to amend her complaint to bring additional claims related to the allegedly defamatory statement, ruling that the plaintiff had failed to show good cause for not filing the motion until nearly 10 months after the deadline, and more than 2 months after she claimed to have learned the factual basis for the new claims. Finally, the court denied the defendants’ motion to exclude the plaintiff’s designated expert witnesses as untimely disclosed, since they had in fact been properly disclosed by the applicable deadline, and also denied, in large part, the defendants’ motion to exclude, as inadmissible, the anticipated opinion testimony of her psychotherapist that the plaintiff’s firing had contributed to her depressive disorder. 52 pages. Judge Joseph N. Laplante.


FAIR DEBT COLLECTION, CONSUMER PROTECTION
1/2/14
Susan E. Himes v. Client Services, Inc., et al. *
Case No. 12-cv-321-PB, Opinion No. 2014 DNH 002

Susan Himes sued Law Offices Howard Lee Schiff, P.C. and two of its attorneys for allegedly violating the federal Fair Debt Collection Practices Act (FDCPA), the New Hampshire Unfair, Deceptive or Unreasonable Collection Practices Act (UDUCPA), and the New Hampshire Consumer Protection Act (CPA). She sued Schiff individually for allegedly violating the federal Telephone Consumer Protection Act (TCPA). The defendants moved for summary judgment on each claim. Himes alleges that the defendants sent her a misleading letter seeking to collect a debt, failed to properly honor her request for validation of the debt, and used an autodialer to call her cell phone without her permission. The court granted the defendants’ motions with respect to the FDCPA, UDUCPA, and CPA claims because Himes failed to identify a false representation made in the letter, failed to explain how or why the letter’s contents misled her, and failed to demonstrate how the defendants’ validation of the debt was insufficient. The court denied Schiff’s motion with respect to the TCPA claim because a genuine issue of material fact existed as to whether Schiff had used an autodialer to call Himes’s cell phone without her permission. 22 pages. Judge Paul J. Barbadoro.


FAIR LABOR STANDARDS ACT, 29 U.S.C. § 207(a)
1/13/14
Gabriel F. Martinez v. Victor F. Petrenko and IceCode, LLC
Case No. 12-cv-331-JD, Opinion No. 2014 DNH 004

In a suit seeking wages and benefits from the plaintiff’s former employer under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a), and state law, the defendant moved for summary judgment on the FLSA claim and asked the court to decline supplemental jurisdiction as to the state claims. In response, the plaintiff asserted that coverage under § 207(a) was not a threshold requirement of a FLSA claim, that he could show coverage, and that the court should retain jurisdiction. The court granted summary judgment on the FLSA claim, concluding that the plaintiff failed to plead individual coverage and did not show at least a material factual dispute as to enterprise coverage. The court retained jurisdiction under 28 U.S.C. § 1332 because the nondiverse defendant had been dismissed from the case when the plaintiff failed to file a return of service. 13 pages. Judge Joseph A. DiClerico, Jr.


FORECLOSURE
1/21/14
Joseph Castagnaro v. The Bank of New York Mellon
Case No. 13-cv-455-JD, Opinion No. 2014 DNH 008

Joseph Castagnaro sought an injunction preventing Bank of New York Mellon (the “Bank”) from foreclosing on his home. Castagnaro alleged that the Bank did not have the right to foreclose because the individual who signed the assignment of the mortgage to the Bank had a conflict of interest and, therefore, the assignment was invalid. Castagnaro also alleged that the Bank did not hold the original note. The Bank moved to dismiss the complaint. In granting the motion to dismiss, the court held that Castagnaro did not have standing to challenge the assignment of the mortgage to the Bank because the alleged conflict of interest at most made the assignment voidable by the assignor. The court also held that the language in the mortgage showed that the parties intended that the mortgage would not follow the note and, because the Bank held the mortgage by assignment, it did not need to show that it held the note in order to foreclose. 8 pages. Judge Joseph A. DiClerico, Jr.


INTELLECTUAL PROPERTY (TRADEMARK, COPYRIGHT)
1/31/14
Coach, Inc., et al. v. Peter J. Sapatis, et al.
Case No. 12-cv-506-PB, Opinion No. 2014 DNH 021

Coach, Inc. and Coach Services, Inc. sued Peter J. Sapatis, Londonderry Marketplace, LLC, Alaina E. Paul, and TABA Enterprises, LLC, alleging violations of federal and state law relating to trademarks, copyrights, and unfair business practices. Coach claimed that each defendant was contributorially liable for the sale of counterfeit Coach goods by third party vendors at a Londonderry flea market. Sapatis and Londonderry Marketplace moved for summary judgment on the sole ground that they had sold the flea market to Paul and TABA prior to the vendors’ alleged conduct and had insufficient involvement with the flea market thereafter to be held liable. The court granted the motion in full with respect to Londonderry Marketplace, and granted the motion as it pertained to Sapatis’s liability for unfair competition because Coach failed to present any evidence that Sapatis had made a material misrepresentation regarding the sale of Coach goods at the flea market. It denied the motion as it pertained to Sapatis’s contributory trademark and copyright liability because a genuine issue of material fact existed regarding his degree of control over the flea market and its vendors during the relevant time period. 32 Pages. Judge Paul J. Barbadoro.


PROPERTY
1/2/14
G. Brandt Atkins v. U.S. Bank National Association, et al.
Case No. 13-cv-257-PB, Opinion No. 2014 DNH 001

G. Brandt Atkins claimed that he was forced to sell his home for an artificially low price because his lender and several associated entities unreasonably refused his request to modify his loan and improperly instituted foreclosure proceedings against him. Defendants Bank of America, N.A., Wells Fargo Bank, N.A., and U.S. Bank as Trustee jointly moved to dismiss the complaint. The court granted the motion to dismiss. It first found each party exempt from the Consumer Protection Act as national banks subject to the comprehensive regulation of the Office of the Comptroller of the Currency. It then rejected Atkins’s claim of a violation of the covenant of good faith and fair dealing because the covenant cannot be used to require a lender to modify or restructure a loan. The court also dismissed Atkins’s claim for negligent hiring, training and supervision because the economic loss doctrine disallowed Atkins from recovering in tort in these circumstances. 13 Pages. Judge Paul J. Barbadoro


1/23/14
Timothy J. Campbell v. Specialized Loan Servicing, LLC, et al.
Case No. 13-cv-278-PB, Opinion No. 2014 DNH 014

Timothy Campbell sued Bank of America, N.A., the current holder of his mortgage note, and Specialized Loan Servicing, LLC, his loan servicer. Bank of America moved to dismiss, and this court granted the motion in part and denied it in part. The court first rejected Campbell’s request for a declaration of a right to a loan modification, and similarly granted dismissal of Campbell’s Consumer Protection Act claim, finding that Bank of America as a national bank subject to the Office of the Comptroller of the Currency was exempt from the Consumer Protection Act. The court next dismissed Campbell’s misrepresentation claim for failing to meet Rule 9(b)’s heightened pleading standard, and his interference with a valid business relationship claim for failing to sufficiently allege a viable claim for relief. It denied the motion to dismiss on Campbell’s UDUCPA claim, however, reasoning that Bank of America’s argument in favor of dismissal was based on a misreading of Campbell’s complaint and failed to read the pleadings in a sufficiently generous manner. It also denied Bank of America’s motion to dismiss Campbell’s request for an accounting and request for declaratory relief for an accounting, finding Bank of America’s stated reasons for dismissal to be inadequate. 13 Pages. Judge Paul J. Barbadoro


SOCIAL SECURITY
1/16/14
Keith W. Arsenault v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 12-cv-434-SM, Opinion No. 2013 DNH 007

Claimant moved to reverse or vacate the decision denying his application for Disability Insurance Benefits and Supplemental Security Income claiming, among other things, that the ALJ failed to adequately explain her decision to substantially discount the expert medical opinions offered by claimant’s treating physicians. The court agreed that the ALJ erred in that regard and remanded the matter for further proceedings. 14 pages. Judge Steven J. McAuliffe.

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