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Bar News - May 21, 2014

US District Court Decision Listing
April 2014
* Published

Sher Leff, LLP v. Pawa Law Group, PC
Case No. 14-cv-26-SM, Opinion No. 2014 DNH 073

The parties, two law firms, entered into a straight-forward fee sharing contract. Millions of dollars of attorney’s fees were at stake. When Sher Leff decided it was pulling the laboring oar in the underlying environmental litigation, it decided it would be “unethical” to pay Pawa Law Group the fees it was due, since the Rule of Professional Conduct preclude fee-sharing arrangements that do not reflect proportional time, effort, or responsibility. The parties arbitrated the dispute and Pawa prevailed in all respects. Sher Leff appealed. The district court affirmed the arbitration award, concluding that Sher Leff’s assertions of error were entirely without merit. 5 pages. Judge Steven J. McAuliffe.

United States of America v. Frederick Drane
Case No. 13-cr-31-01-JL, Opinion No. 2014 DNH 071*

The defendant, facing trial on charges of possessing, and conspiring to possess, crack cocaine with the intent to distribute it, moved in limine to exclude evidence of the facts underlying a charge pending against an anticipated trial witness, his alleged co-conspirator, for hindering apprehension. The defendant sought a ruling that he could cross-examine the witness about the basis of the charge--a lie she had told to police officers--without opening the door to the fact that she had lied about the defendants’ whereabouts to waylay the officers in their attempt to arrest him on an unrelated charge. Denying the motion, the court ruled that evidence of the hindering apprehension charge was not admissible under Rule 609, but Rule 608(b), of the Federal Rules of Evidence, imposed no restriction on inquiry into the facts underlying the alleged act of untruthfulness. The court further ruled that--so long as the prosecution did not elicit the fact that the incident arose out of an effort to arrest the defendant on an unrelated charge--the probative value of the underlying facts outweighed any potential for undue prejudice. 5 pages. Judge Joseph N. Laplante.

Pro Mod Realty, LLC et al. v. US Bank National Association et al.
Case No. 13-cv-498-JL, Opinion No. 2014 DNH 069

The plaintiffs, mortgagees, sued the defendants, the servicer of the mortgage loan and the purported mortgagor, claiming that their efforts to foreclose were wrongful in light of their alleged promises to consider the plaintiffs’ application to modify the loan, or to offer “alternatives,” before foreclosing. Granting the defendants’ motion to dismiss, the court ruled that (1) as a matter of law, the plaintiffs could not have reasonably relied on the alleged promises, which were illusory, (2) in any event, the plaintiffs had failed to allege that they detrimentally relied on the promises, and (3) the plaintiffs’ assertion that they challenged the defendants standing to foreclose if they lacked possession of the note secured by the mortgage failed to state a claim for relief; the plaintiffs needed to affirmatively allege that the defendants actually lacked possession of the note. 11 pages. Judge Joseph N. Laplante.

Hope Nardone v. Deutsche Bank National Trust Company, as Trustee for the Certificate Holders of Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
Case No. 13-cv-390-SM, Opinion No. 2014 DNH 065

Pro se plaintiff challenged the foreclosure sale of her home, asserting that defendant had no right or standing to foreclose, the foreclosure deed was a “fraud,” and, therefore, defendant had no right to seek her eviction from the property. After carefully reviewing each of plaintiff’s claims, the court concluded that none stated a viable cause of action. Under state law, because plaintiff failed to file a timely petition to enjoin the foreclosure sale, she cannot now challenge the validity of that foreclosure. Accordingly, the court granted defendant’s motion to dismiss. 10 pages. Judge Steven J. McAuliffe.

Thomas P. Lovy and Loan A. Q. Lovy v. Federal National Mortgage Ass’n, et al.
Case No. 13-cv-399-SM, Opinion No. 2014 DNH 081

Pro se plaintiffs filed a 76-page complaint in state court, advancing 14 separate claims against defendants - all arising out of the foreclosure sale of their home. Defendants removed the proceeding to federal court. Plaintiffs then moved the court to remand the action to state court, while defendants moved to dismiss all of plaintiffs’ claims. The court first concluded that removal was proper. It then addressed each of plaintiffs’ 14 claims and concluded that none stated a viable cause of action. Defendants’ motion to dismiss granted. 20 pages. Judge Steven J. McAuliffe.

Hanus v. Loon Mountain Recreation Corp., et al.
Case No. 13-cv-44-JL, Opinion No. 2014 DNH 075

Plaintiffs sued a ski area operator seeking to recover for injuries their minor son suffered during a collision with a ski area employee while skiing. The defendant moved to dismiss, invoking the immunity from liability for injuries resulting from the inherent risks of skiing that N.H. Rev. Stat. Ann. § 225-A:24, I grants to ski area operators. The court granted the motion, reasoning that because the statute specifically identifies collisions with other skiers as one of the inherent risks of skiing, the defendant was entitled to immunity from the plaintiffs’ suit. Although the plaintiffs argued that the ski area employee involved in the collision had breached the safety responsibilities imposed on skiers by the statute, the court concluded that this breach had no effect on the defendant’s immunity under the statute. 15 Pages. Judge Joseph N. Laplante.

Marie Gaudette ex rel. DP v. Carolyn Colvin
Case No. 13-cv-08-JL, Opinion No. 2014 DNH 022

The plaintiff, acting on behalf of her minor daughter, appealed the decision of an administrative law judge at the Social Security Administration that the daughter was not disabled and therefore not entitled to Supplemental Security Income. Affirming the ALJ’s decision, the court ruled that (1) assuming that the ALJ needed a medical opinion to support his finding that the daughter did not suffer from a listed impairment, the record contained such an opinion, in the form of the conclusions of state agency physicians that the daughter was not disabled, (2) the ALJ acted within his discretion in giving little weight to the opinion of a nurse practitioner who had treated the daughter that her lactose intolerance imposed an extreme limitation on her health or well-being, in favor of the opinion of a treating physician who deemed the daughter’s condition well-controlled. 13 pages. Chief Judge Joseph N. Laplante.

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