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Bar News - July 16, 2014


US District Court Decision Listing
June 2014
* Published

CONSTITUTIONAL LAW
6/6/14
Johnson v. Prospect Mountain JMA School District
Case No. 13-cv-207-LM, Opinion No. 2014 DNH 128

In this case, the parents of a high-school student claimed that various school officials violated their son’s constitutional rights by treating him poorly because those officials disagreed with the student’s mother’s actions while she had served as a member of the school board. The court granted the school officials’ motion to dismiss: (1) a class-of-one equal-protection claim, due to the lack of similarly-situated comparators; (2) a substantive due-process claim, due to a lack of conduct by the defendant that would shock the conscience; and (3) a procedural due-process claim, due to the lack of a property interest of constitutional magnitude. The court also dismissed a claim under the Family Educational Rights and Privacy Act, because that statute does not provide for a private right of action. 20 pages. Judge Landya B. McCafferty.


CRIMINAL PROCEDURE
6/30/14
United States of America v. Frederick Drane
Case No. 13-cr-31-JL, Opinion No. 2014 DNH 150

The defendant moved to suppress (1) evidence seized from his person following a traffic stop, (2) evidence seized from his vehicle following another traffic stop approximately three months later, and (3) a statement he made during the second traffic stop. Denying the motions to suppress, the court ruled that (1) based on accounts of defendant’s participation in a fight at an intersection prior to the first stop, and his behavior during that stop, reasonable suspicion existed to ask him whether he was in possession of drugs and to frisk him for weapons, (2) during the second stop, the vehicle’s passenger, who had rented the car in her name, gave valid consent to search, in the absence of any evidence that the police had removed defendant from the vehicle to prevent him from objecting to the search, and (3) because the defendant volunteered the incriminating statement, the fact that he had not yet received Miranda warnings was irrelevant. 29 pages. Judge Joseph N. Laplante.


EMPLOYMENT
6/23/14
Michael W. Powers v. Northern Lights Landscape Contractor, LLC, and Erich Mueller
Case No. 13-cv-7-SM, Opinion No. 2014 DNH 144

In this commercial contract dispute, plaintiff moved to dismiss defendant’s breach of contract counterclaim. Specifically, plaintiff asserted that defendant could not, as a matter of law, enforce the covenant not to compete plaintiff had signed. The court denied plaintiff’s motion, noting that although New Hampshire law disfavors restraints on employment, such restraints are enforceable if reasonable under the circumstances. At this juncture, however, the factual record was insufficiently developed to permit the court to determine whether the agreement was reasonable or whether it leant itself to equitable reformation. 8 pages. Judge Steven J. McAuliffe.


EMPLOYMENT (TITLE VII)
6/18/14
Rebecca Hopkins v. ADP, Inc.
Case No. 12-cv-238-SM, Opinion No. 2014 DNH 137

Pro se plaintiff brought suit against her former employer, alleging gender and disability-based discrimination. The court granted defendant’s motion for summary judgment, holding that plaintiff failed to point to any evidence to suggest that defendant’s proffered explanation for terminating her employment was a pretext for unlawful discrimination. 16 pages. Judge Steven J. McAuliffe.


INTELLECTUAL PROPERTY (TRADEMARK, COPYRIGHT)
6/23/14
Coach, Inc., et al. v. Peter J. Sapatis, et al.*
Case No. 12 cv 506 PB, Opinion No. 2014 DNH 140

Coach, Inc. and Coach Services, Inc. sued Peter J. Sapatis, Londonderry Marketplace, LLC, Alaina E. Paul, and TABA Enterprises, LLC, alleging that each defendant was contributorially liable for sales of counterfeit Coach goods by third party vendors at a Londonderry flea market which directly infringed Coach’s trademarks and copyrights. Paul moved for summary judgment on the grounds that, in a personal capacity rather than in her capacity as the owner, sole member, and manager of TABA, she had insufficient notice of the vendors’ alleged trademark and copyright infringement and insufficient control over the vendors’ activities to be held personally liable. The court held that Paul’s status as a corporate officer was immaterial and that the same contributory liability standard applies to all defendants. The court denied Paul’s motion because a genuine issue of material fact existed regarding her personal notice of the vendors’ infringement and her degree of control over the flea market and its vendors during the relevant time period. 24 Pages. Judge Paul J. Barbadoro.


6/27/14
Coach, Inc., et al. v. Peter J. Sapatis, et al.
Case No. 12 cv 506 PB, Opinion No. 2014 DNH 149

Coach, Inc. and Coach Services, Inc. sued Peter J. Sapatis, Londonderry Marketplace, LLC, Alaina E. Paul, and TABA Enterprises, LLC, alleging that each defendant was contributorially liable for sales of counterfeit Coach goods by third party vendors at a Londonderry flea market which directly infringed Coach’s trademarks and copyrights. Coach moved for a prejudgment writ of attachment to secure real property owned by Sapatis pending trial. The court denied the motion because Coach had failed to make a strong preliminary showing that it would ultimately prevail on the merits. Specifically, Coach failed to present clear and convincing evidence that Sapatis had not taken reasonable remedial measures to combat the sale of counterfeit Coach goods at the flea market. 23 Pages. Judge Paul J. Barbadoro.


JURISDICTION
6/23/14
Denise Sanders v. Luminescent Systems, Inc., et. al
Case No. 14-cv-188-PB, Opinion No. 2014 DNH 141

Denise Louise Sanders sued Luminescent Systems, Inc. and its employee Tony LaFromboise in New Hampshire Superior Court for wrongful termination, retaliation, sex discrimination, and defamation, basing all of her claims exclusively on state law. Sanders moved to remand her suit after defendants removed it to this court, contending that this court lacks jurisdiction because there is not complete diversity of citizenship between the parties and the defendants did not allege an amount in controversy exceeding $75,000. This court rejected Sanders’s arguments, finding that defendants submitted sufficient evidence that (1) LaFromboise was domiciled in Vermont, and (2) that Sanders request for lost wages and benefits exceeds $75,000. This court thus found that defendants alleged sufficient facts to meet their burdens and denied Sanders’s motion to remand. 4 Pages. Judge Paul J. Barbadoro


JURISDICTION (PERSONAL)
6/23/14
De Leon v. Radisson Hotels, International, Inc., et al.
Case No. 13-cv-218-SM, Opinion No. 2014 DNH 143

Plaintiff sued various Radisson Hotel entities and a hotel management company seeking compensation for injuries she sustained in a parasailing accident while vacationing in Freeport, Grand Bahama Island. The hotel management company moved to dismiss all claims against it for lack of personal jurisdiction, asserting that it is a Hong Kong company headquartered in Kowloon; it has no property, employees, or assets in New Hampshire; and it is not registered to do business in New Hampshire, nor has it ever done business in New Hampshire. The court granted the motion to dismiss, concluding it lacked personal jurisdiction over that defendant. 4 pages. Judge Steven J. McAuliffe.


MORTGAGE
6/6/14
Sharel L. Giroux v. Federal National Mortgage Association, et. al
Case No. 14-cv-58-PB, Opinion No. 2014 DNH 135

Sharel L. Giroux filed suit against the Federal National Mortgage Association (“Fannie Mae”) and MERSCORP Holdings, Inc., seeking a declaratory judgment that Fannie Mae does not hold rights in her mortgage or promissory note, a permanent injunction barring Fannie Mae from enforcing the note, and further discovery from MERSCORP. Fannie Mae argued that Giroux’s current claims are barred by res judicata based on a prior state court decision. Giroux contended that res judicata should not apply because New Hampshire’s venue law barred her from litigating her challenge to the mortgage in the original proceeding. This court rejected Giroux’s argument, finding that even accepting her underlying premise as correct, she cannot escape the effect of res judicata by splitting her claims and attempting to litigate some of them in one county while reserving other claims for a later action in another county. The court thus granted the defendants’ motion to dismiss. 8 Pages. Judge Paul J. Barbadoro.


MORTGAGE; HOMESTEAD RIGHTS
6/17/14
Mason v. Wells Fargo Bank, N.A.
Case No. 14-cv-77-JL, Opinion No. 2014 DNH 136

The plaintiff filed this action to enjoin a foreclosure sale, asserting, among other things, that the defendant had “not produced” the promissory note which the mortgage on her property secured and that foreclosure would deprive her of her homestead right in the property. The court granted the defendant’s motion to dismiss. Assuming that possession of the promissory note was a necessary prerequisite to foreclosure, the court held that the allegation that the defendant had “not produced” the note failed to state a plausible claim that the defendant did not possess the note. Rather, the court held, to successfully state a claim challenging a defendant’s standing to foreclose on the theory that possession of the note is necessary to foreclose, a plaintiff must affirmatively allege that the defendant lacks possession of the note. The court also held that foreclosure would not deprive the plaintiff of any homestead right because the homestead exemption does not apply to mortgages. Although the plaintiff argued that the mortgage could not waive her homestead right because she was not a signatory to it, the court rejected this argument, holding that because the plaintiff had acquired her ownership interest in the property after the mortgage had been executed, she took that interest subject to the mortgage. 13 Pages. Judge Joseph N. Laplante.


MORTGAGE; FORECLOSURE
6/18/14
Galvin v. EMC Mortgage Corp. et al.
Case No. 12-cv-320-JL, Opinion No. 2014 DNH 139

The parties in this action to enjoin a foreclosure sale cross-moved for summary judgment, taking different positions as to the meaning of the term “mortgagee” in N.H. Rev. Stat. Ann. § 479:25, which allows “the mortgagee or his assignee” to conduct a foreclosure under the power of sale. The plaintiffs contended that “mortgagee” means the entity that “owns and holds both the borrower’s note and mortgage interests,” while the defendant argued that a “mortgagee” need hold the mortgage only. The court first examined the evidence proffered by the parties, concluding that there was no dispute as to the defendant’s ownership of the plaintiffs’ mortgage, but that there was a genuine dispute of material fact as to whether the defendant also held the note. Observing that it could nonetheless grant summary judgment for the defendant if it adopted the defendant’s preferred definition of the term “mortgagee,” the court instead elected to defer the issue until a trial had established whether or not the defendant in fact held the promissory note. 34 Pages. Judge Joseph N. Laplante.


SOCIAL SECURITY
6/23/14
Keith R. McDonough v. U.S. Social Security Administration
Case No. 13-cv-164-PB, Opinion No. 2014 DNH 142

Keith McDonough sought judicial review of a ruling by the Social Security Administration denying his application for disability insurance benefits and social security income. McDonough claimed that the Administrative Law Judge (“ALJ”) erred in: failing to classify several of his impairments as severe at step two; failing to consider all of his impairments in determining his residual functional capacity (“RFC”); and failing to properly evaluate medical opinion evidence supporting his claimed impairments. This court rejected McDonough’s arguments and affirmed the Administration’s decision, reasoning first that because the ALJ found McDonough’s hepatitis C to be severe, any error at step two was at most harmless. This court next found that the ALJ accounted for all McDonough’s alleged impairments in crafting the RFC and adequately explained why she did not adopt any mental-health related limitations. Finally, this court found that the ALJ did not ignore any of the mental health evidence and accorded sufficient weight and explanation to each of the medical opinions. 40 Pages. Judge Paul J. Barbadoro.

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