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Bar News - August 20, 2014


US District Court Decision Listing
July 2014
* Published

AMERICANS WITH DISABILITIES ACT, WORKERS’ COMPENSATION ACT BAR, AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
7/9/14
Dennis Palmerini v. Fidelity Brokerage Services LLC
Case No. 12-cv-505-JD, Opinion No. 2014 DNH 152

Palmerini brought suit against his former employer, Fidelity, alleging claims under the Americans with Disabilities Act and state law. After two state law claims were dismissed, Fidelity moved for summary judgment on the remaining claims, discrimination under the ADA and negligent and intentional infliction of emotional distress. The court held that Palmerini could not make a prima facie case in support of his ADA claim because the undisputed facts showed that Fidelity offered him reasonable accommodations for his disabilities due to depression and PTSD and that Palmerini’s requested accommodations were not reasonable. The court also held Palmerini could not show that he was discharged or adversely affected because of his disability. As to the state law claims, the court held that Palmerini’s negligent infliction of emotional distress claim was barred by RSA chapter 281-A and that, to the extent intentional actions were not barred, Palmerini’s version of events was insufficient to show intentional infliction of emotional distress. Summary judgment was granted on all remaining claims. 22 pages. Judge Joseph A. DiClerico, Jr.


CONSPIRACY
7/9/14
Charles Stanton v. Harold Lassonde, III, et al.
Case No. 13-cv-537-PB, Opinion No. 2014 DNH 153

Charles Stanton was held liable in a state court action for breach of contract and defamation. After losing in state court, he filed an action against the victorious plaintiff and his attorney, claiming that the defendants are liable under 28 U.S.C. §§ 1983 and 1985 because they conspired with a state court clerk and the state court judge who presided over his case. The defendants moved to dismiss. The court granted the motion, finding that Stanton’s conclusory assertions that the state actors had engaged in illegal conduct and that the defendants had joined in the conspiracy were not sufficient to support a viable conspiracy claim. 3 pages. Judge Paul J. Barbadoro.


CONTRACT
7/15/14
Chase Bailey, et al. v. Lynn Buskey, et al.
Case No. 12-cv-396-SM, Opinion No. 2014 DNH 156

Settlor of trust and guarantor of loan and successor trustee brought suit against attorneys who provided legal services relating to complex life insurance transaction. Plaintiffs alleged that defendants breached their professional and fiduciary duties as settlor’s estate planning attorneys. Defendants moved for summary judgment on grounds that there had been no attorney-client relationship. The court denied the motion as to the settlor’s claims, finding that defendants had acted as his legal counsel for limited purpose. The motion was granted as to trustee’s claims, which had not been seriously advanced by the plaintiffs. 8 pages. Judge Steven J. McAuliffe.


HABEAS CORPUS
7/21/14
Angel Roldan v. Edward Reilley, Warden, Northern New Hampshire Correctional Facility
Case No. 13-cv-447-PB, Opinion No. 2014 DNH 158

Angel Roldan, an inmate incarcerated pursuant to a final judgment of the New Hampshire state courts, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The state moved for summary judgment on the ground that the petition was untimely. Roldan objected, arguing that the one-year limitations period should be equitably tolled. The court granted the motion, finding that Roldan’s alleged limited English proficiency, illiteracy, lack of education, lack of effective appellate counsel, lack of access to the courts, and status as a first time offender were not extraordinary circumstances and that Roldan had not demonstrated reasonable diligence in attempting to file his petition within the limitations period. 13 pages. Judge Paul J. Barbadoro.


INSURANCE; REMAND
7/28/14
Cindy Bunker v. Midstate Mutual Insurance Company, et al.
Case No. 14-cv-274-PB, Opinion No. 2014 DNH 161

Cindy Bunker brought this insurance coverage action against Brian Nadeau, a New Hampshire resident, and his insurance provider, Midstate Insurance Company, a New York corporation. Midstate removed the action to this court, and Bunker filed a motion to remand, arguing that this court lacks diversity jurisdiction over the action because she and Nadeau are both residents of New Hampshire. Because both Bunker and Nadeau seek a declaration that Midstate is obligated to provide coverage, this court found that the parties should be realigned for jurisdictional purposes according to their actual interests in the dispute. Diversity of jurisdiction exists after the parties are realigned, and this court thus denied Bunker’s motion to remand. 3 Pages. Judge Paul J. Barbadoro.


MORTGAGE
7/24/14
Thomas and Frances Frangos v. Bank of America, N.A., et al.
Case No. 13-cv-472-PB, Opinion No. 2014 DNH 159

Thomas and Frances Frangos filed a petition to enjoin a foreclosure sale of their home in Portsmouth, New Hampshire. The petition challenged the legality of Bank of New York Mellon’s efforts to foreclose and Bank of America’s actions in servicing their loan. Both banks moved to dismiss all claims. This court agreed with the Frangoses that they sufficiently alleged that Bank of New York cannot foreclose because it does not hold the note, reasoning that a contested allonge that Bank of New York attached could not properly be considered at this stage of the proceedings. This court also agreed that the Frangoses successfully alleged that Bank of New York failed to comply with its obligation under the mortgage to give notice of their default and an opportunity to cure. It rejected the Frangoses’ argument, however, that the defendants failed to deal in good faith with their requests to modify their loan. This court thus denied the motion, except that it was granted to the extent that any count is based on a claim that defendants failed to consider in good faith the Frangoses’ request for a loan modification. 12 Pages. Judge Paul J. Barbadoro.


MOTION TO RECONSIDER
7/15/14
Autumn O’Rourke v. Boyne Resorts d/b/a Loon Mountain Recreation Corporation
Case No. 12-cv-445-SM, Opinion No. 2014 DNH 155

Plaintiff employee moved for reconsideration of court’s entry of summary judgment in favor of defendant employer. The court denied the motion to reconsider on grounds, in part, that plaintiff raised legal theories she did not present or develop in her opposition to the motion for summary judgment. 3 pages. Judge Steven J. McAuliffe.


SUBJECT MATTER JURISDICTION
7/21/14
Roger A. Sevigny, New Hampshire Insurance Commissioner v. United States, et al.
Case No. 13-cv-401-PB, Opinion No. 2014 DNH 157

The New Hampshire Insurance Commissioner, as liquidator of the Home Insurance Company, attempted to disburse assets from Home’s estate to its creditors. The United States notified the Commissioner that it may have claims against Home that are “not currently known” but nonetheless must be paid prior to any other distributions from Home’s estate pursuant to the Federal Priority Act. The Commissioner sought (1) a declaratory judgment that the United States’ claims are not subject to the Federal Priority Act, and (2) an order compelling the United States to respond to his earlier request that it waive any claims it may have against Home. The United States moved to dismiss. The court granted the motion with respect to the order to compel claim, finding that the United States was not obligated to respond to the Commissioner’s waiver request. The court denied the motion with respect to the declaratory judgment claim, finding that (1) the Commissioner had standing, (2) the claim arose under federal law, and (3) the United States had waived its sovereign immunity. 26 pages. Judge Paul J. Barbadoro.

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