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Bar News - April 16, 2014


US District Court Decision Listing

* Published

CONTRACTS
3/17/14
GE Mobile Water, Inc. v. Red Desert Reclamation, LLC, et al.
Case No. 13-cv-357-PB, Opinion No. 2014 DNH 054

GE Mobile Water, Inc. entered into a contract with Red Desert Reclamation, LLC to lease water treatment equipment for use at Red Desert’s Wyoming facility. After Red Desert failed to make payments required under the contract, GE Mobile sued it and two affiliated entities, Clean Runner LLC and Cate Street Capital, Inc. In this order, this court considered Clean Runner and Cate Street’s motion to dismiss for failure to state a claim. The court first granted Clean Runner’s motion to dismiss GE Mobile’s breach of contract claims, noting that GE Mobile alleged no facts to establish anything beyond an agency relationship between Clean Runner and Red Desert. The court next granted Clean Runner and Cate Street’s motion to dismiss GE Mobile’s unjust enrichment claim because GE Mobile failed to sufficiently allege that either party received a benefit which would be unconscionable to retain. It then granted Cate Street’s motion to dismiss GE Mobile’s claim of negligent misrepresentation because GE Mobile’s allegations amounted to no more than honestly held statements of intention. The court denied the motion to dismiss for GE Mobile’s promissory estoppel and veil-piercing claims against Cate Street, noting that the statute of limitations did not bar the promissory estoppel claim and that GE Mobile alleged sufficient facts to support an inference that Cate Street and Red Desert bent the rules regarding corporate formalities and failed to adequately capitalize Red Desert. 22 pages. Judge Paul J. Barbadoro


3/20/14
Bailey, et al. v. Buskey, et al.
Case No. 12-cv-396-SM, Opinion No. 2014 DNH 057

Trust grantor and trustee of insurance trust brought legal malpractice claims against attorneys alleging that they failed to advise grantor of risks to him as guarantor in premium financing arrangement for purchase of life insurance. Attorney defendants filed third-party claim against subsequently-hired attorney whose independent advice, they say, caused the plaintiff injury. Third-party defendant moved to dismiss the third-party complaint. The court denied the motion, holding that the attorney defendants stated a viable claim for contribution against the subsequently-retained attorney. 3 pages. Judge Steven J. McAuliffe.


EMPLOYMENT LAW
3/19/14
Robert Gennell, Jr., et al. v. FedEx Corp., et al.
Case No. 05-cv-145-PB, Opinion No. 2014 DNH 056

A class of delivery drivers formerly employed by FedEx Ground Packaging System, Inc. in New Hampshire sought partial summary judgment on their claim that FedEx had failed to reimburse them for their work-related expenses in violation of New Hampshire Revised Statutes section 275:57(I). FedEx filed a cross motion for summary judgment on the drivers’ reimbursement claim. In a matter of first impression, the court held that the drivers were not entitled to reimbursement under section 275:57(I) because they had agreed to assume the claimed expenses in their employment contracts in exchange for the compensation structure offered to the drivers by FedEx. Thus, the claimed expenses fell under an exception to section 275:57(I) exempting expenses that have been “paid for by wages, cash advance, or other means.” The court denied the drivers’ motion for partial summary judgment and granted FedEx’s motion for summary judgment on the drivers’ reimbursement claim.


INTELLECTUAL PROPERTY: TRADEMARK
3/20/14
Topek, LLC v. W. H. Silverstein, Inc.
Case No. 12-cv-494-SM, Opinion No. 2014 DNH 060

Defendant in this trademark infringement case moved to dismiss several of plaintiff’s claims on grounds that they are barred by the doctrine of res judicata. Defendant asserted that the resolution of related state court litigation (by way of a settlement agreement) precluded plaintiff from litigating the claims advanced in this action. The court disagreed, noting, among other things, that the parties’ settlement agreement specifically stated that it shall not have any preclusive effect on the claims asserted in this litigation. The court also denied defendant’s motion for preliminary injunction on its counter-claims. Defendant failed to show a likelihood of success on the merits on its claim that when plaintiff purchased all the assets of Yankee Barn Homes, including its “good will,” it did not acquire the legal right to hold itself out to the public as Yankee Barn homes. 23 pages. Judge Steven J. McAuliffe.


EVIDENCE, MOTION TO SUPPRESS, OMISSIONS FROM WARRANT AFFIDAVIT
3/4/14
United States v. Robert Joubert
Case No. 12-cr-142/01-JL, Opinion No. 2014 DNH 046*

The defendant moved to suppress evidence seized during the execution of a search warrant at his residence, arguing that the warrant had been procured through the intentional or reckless omission of material facts from the warrant affidavit and that, even with those omissions, the affidavit failed to establish probable cause to believe evidence would be found at his residence. The court denied the motion, concluding that the affidavit, as submitted, established probable cause to believe that the items sought in the warrant–-photographs and other materials linking the defendant to his alleged victims–-would be found at the residence. In reaching this conclusion, the court noted that although the allegations against the defendant dated back many years, persons commonly maintain photographs in their possession for years, if not decades, and that they keep such materials at their residences. The court further concluded that the majority of the “omissions” the defendant identified were not omissions at all, and that the affidavit accurately conveyed the information the defendant asserted was omitted. While the court agreed with the defendant that information regarding the previous conviction of an informant for a crime of crime of dishonesty had been omitted from the affidavit, perhaps recklessly, it concluded that suppression of the fruits of the search was not warranted because the affidavit would have established probable cause even if it had included this information. 25 Pages. Judge Joseph N. Laplante.


HABEAS CORPUS
3/31/14
Ali v. Edward Reilly, Warden
Case No. 12-cv-185-JL, Opinion No. 2014 DNH 063

Serving a sentence for an enhanced Class A felony second degree assault conviction, Dominic Ali petitioned for a writ of habeas corpus under 28 U.S.C. § 1983, asserting that he had received ineffective assistance of counsel at trial, in sentencing, on appeal, and in post-conviction proceedings, and that there had been due process violations in the state prosecution, involving prosecutorial misconduct, misapplication of RSA 173-B:9 to enhance a second degree assault to a Class A felony, the participation of a biased judge in his direct appeal, and the use of a prior conviction based on a nolo plea that he claimed was not knowing or voluntary, to enhance a second degree assault to a Class A felony. The respondent and petitioner filed cross-motions for summary judgment. The court granted the warden’s motion in part, finding that Ali’s could not use a federal habeas proceeding to collaterally challenge his prior conviction, and rejecting on the merits the claim that a New Hampshire Supreme Court justice was biased. The court found certain claims to be procedurally defaulted in the state proceedings, and rejected claims of ineffective assistance of trial, appellate, and post-conviction counsel, because Ali failed to show that there were errors, and that any errors were prejudicial. The court denied without prejudice the warden’s motion for summary judgment on Ali’s claims asserting ineffective assistance of sentencing counsel, and ineffective assistance of trial counsel for failing to investigate the validity of the plea underlying the prior conviction, because respondent had not filed transcripts of the relevant state proceedings. 46 pages. Judge Joseph Laplante


PERSONAL JURISDICTION
3/7/14
GE Mobile Water, Inc. v. Red Desert Reclamation, LLC, et al.
Case No. 13-cv-357-PB, Opinion No. 2014 DNH 049

GE Mobile Water, Inc. entered into a contract with Red Desert Reclamation, LLC to lease water treatment equipment for use at Red Desert’s Wyoming facility. After Red Desert failed to make payments required under the contract, GE Mobile sued it and two affiliated entities, Clean Runner LLC and Cate Street Capital, Inc. Red Desert moved to dismiss the complaint for lack of personal jurisdiction, arguing that as a Wyoming corporation it lacked sufficient minimum contacts with New Hampshire. The court analyzed the contract between the parties, including prior negotiations, contemplated future consequences, and actual course of dealing, and found that GE Mobile’s underlying claim arose out of and related to activities within the forum state. Next the court found Red Desert’s contacts with the forum state were unquestionably voluntary and that it was reasonable for the court to assert jurisdiction. The court thus denied Red Desert’s motion to dismiss for lack of personal jurisdiction. 14 pages. Judge Paul J. Barbadoro


SOCIAL SECURITY
3/7/14
Jennifer L. Waters v. Social Security Administration
Case No. 13-cv-45-JL, Opinion No. 2014 DNH 050

On appeal from the Social Security Administration’s denial of the claimant’s applications for a period of disability, disability insurance benefits, and Supplemental Security Income, the court reversed the decision of the Administrative Law Judge (“ALJ”). The court held that the ALJ’s written decision was not sufficiently specific to make clear his reasons for concluding that the claimant’s statements regarding the limiting effects of her symptoms. The court further held that the ALJ, in concluding that the claimant was capable of performing the physical and mental demands of her past relevant work, had erred in failing to make a specific finding as to what those demands were. 10 Pages. Judge Joseph N. Laplante.


3/11/14
Letellier v. Commissioner of Social Security Administration
Case No. 13-cv-271-PB, Opinion No. 2014 DNH 052

Michelle Letellier sought judicial review of a ruling by the Commissioner of the Social Security Administration (SSA) denying her application for Supplemental Security Income and Disability Insurance Benefits. Lettelier claimed that the Administrative Law Judge (ALJ) lacked substantial evidence for his decision because he crafted a mental Residual Functional Capacity (RFC) that was less limiting than the unanimous assessment of the sources of record, and subsequently used the erroneous RFC to determine that Letellier could perform her past relevant work. The Commissioner claimed that, even if true, the error was harmless because the ALJ would have found that Lettelier could perform other work in the national economy even if he had utilized an accurate RFC. The court held that the ALJ erred in crafting an inaccurate RFC. Furthermore, the error was not harmless because the ALJ did not make an on-the-record finding regarding Letellier’s ability to perform work in the national economy, and a court is constrained to review only the ALJ’s express findings. The court thus granted Letellier’s motion to remand her case to the SSA for further administrative proceedings.


3/20/14
Michael David Huse, Jr. v. Carolyn W. Colvin, Commissioner, Social Security Administration
Case No. 13-cv-117-JL, Opinion No. 2014 DNH 059

A claimant appealed the denial of his application for benefits by an Administrative Law Judge at the Social Security Administration, who had awarded a closed period of disability ending in July 2009. Reversing and remanding, the court ruled that the ALJ lacked substantial evidence for his decision that the claimant had regained the capacity for sedentary work as of July 2009, when the only medical evidence on that point was an opinion that the claimant could work at least 6 hours a day, five days a week, rather than at least 8 hours a day, five days a week, as required, and the Commissioner conceded that she had the burden of showing that the claimant had regained his capacity for sedentary work. 6 pages. Judge Joseph N. Laplante.


3/20/14
Scanlon v. SSA
Case No. 13-cv-96-JL, Opinion No. 2014 DNH 058

On appeal from the Social Security Administration’s denial of the claimant’s applications for a period of disability and disability insurance benefits, the court reversed the decision of the Administrative Law Judge (“ALJ”). The court held that the ALJ’s conclusion that the claimant retained the residual functional capacity (“RFC”) to perform light work as of his date last insured was not supported by substantial evidence, as the only medical opinion as to the claimant’s exertional ability as of that date that was discussed in the ALJ’s opinion opined that the claimant could perform sedentary work at most. Although the record contained an opinion that was consistent with the ALJ’s RFC finding, the court refused to assume that the ALJ had relied upon that opinion where his written opinion did not discuss, quote, or cite it. The court therefore remanded the case so the ALJ could clearly state the evidentiary basis for his finding as to the claimant’s RFC. 7 Pages. Judge Joseph N. Laplante.

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