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Bar News - September 17, 2014


US District Court Decision Listing
August 2014
* Published

CONTRACTS; EMPLOYMENT LAW
8/13/14
Mason v. TELEFUNKEN Semiconductors America LLC et al.
Case No. 12-cv-507-JL, Opinion No. 2014 DNH 169

The plaintiff sought to recover severance pay, alleging that he was entitled to severance under the terms of his employment agreement, which provided for one year’s pay if he was terminated without cause, or two years’ pay if he was terminated due to his employer’s “acquisition, merger, or buyout by another entity.” The court granted the defendant’s motion for summary judgment. The obligation to pay two years’ severance, the court held, was not triggered when, as a result of the employer’s acquisition by another entity, the plaintiff’s employment was transferred to the new entity. Nor was the plaintiff entitled to one year’s severance when the new employer, which had assumed the employment agreement as a part of that transfer, chose to let the agreement expire according to its terms; choosing not to renew the agreement, the court held, was not a termination without cause within the meaning of the agreement. 21 Pages. Judge Joseph N. Laplante.


EMPLOYMENT DISCRIMINATION
8/5/14
Taylor v. eCoast Sales Solutions
Case No. 12-cv-326-JL, Opinion No. 2014 DNH 164

The defendant moved for summary judgment on claims by its former employee that it had fired her in retaliation for taking leave due to medical complications from her pregnancy, in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(1), the New Hampshire Law Against Discrimination, N.H. Rev. Stat. Ann. § 354-A:7, VI(b), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e(k), e-2(a)(1). Denying the motion, the court ruled that the plaintiff’s testimony as to repeated comments by the supervisor who fired her, criticizing her for taking leave, combined with her firing just 10 days after she returned from leave, made out a prima facie case of retaliatory firing--and that the defendant could not obtain summary judgment by simply ignoring the plaintiff’s testimony. While the defendant argued that the plaintiff had been fired for falsifying information, the court ruled that the evidence supporting her prima facie case, together with evidence suggesting that she was the only employee who had been immediately fired for such an offense in recent years, sufficed to create a genuine issue as to whether the stated reason for her firing was a pretext for illegal retaliation. 23 pages. Judge Joseph N. Laplante.


HABEAS CORPUS
8/22/14
Angel Roldan v. Edward Reilly, Warden, Northern New Hampshire Correctional Facility
Case No. 13-cv-447-PB, Opinion No. 2014 DNH 175

Angel Roldan, an inmate incarcerated pursuant to a final judgment of the New Hampshire state courts, filed a motion for a certificate of appealability pursuant to 28 U.S.C. § 2253(c) after his petition for a writ of habeas corpus was denied on summary judgment. The state objected. Roldan argued that his sworn affidavit, which stated that he could not read English and his prison only possessed legal materials in English, created a genuine issue of material fact regarding whether the applicable one-year limitations period should be equitably tolled. The court denied the motion, concluding that even assuming Roldan had no proficiency in the English language, he still failed to present sufficient evidence that this constituted “extraordinary circumstances” or that he had exercised the “reasonable diligence” necessary to warrant equitable tolling. 5 pages. Judge Paul J. Barbadoro.


JURISDICTION
8/7/14
Cindy Bunker v. Midstate Mutual Insurance Company, et al.
Case No. 114-cv-274-PB, Opinion No. 2014 DNH 167

Cindy Bunker was injured at a Nashua, New Hampshire rental property owned by Brian Nadeau. She brought a negligence action against Nadeau in superior court and later filed a separate insurance coverage action in state court against Nadeau and his insurer, Midstate Mutual Insurance Company, a New York corporation. Midstate removed the latter action to this court, and after Nadeau filed a cross-claim, filed motions to dismiss for lack of personal jurisdiction against both Bunker and Nadeau. Examining the contract between Midstate and Nadeau and its nationwide coverage clause, this court found that the clause rendered claims under the policy sufficiently related to the forum and constituted an affirmative choice by the insurer to avail itself of the privilege of conducting business within the state. It also found that exercising jurisdiction would be reasonable and thus determined that it possessed personal jurisdiction over Midstate and denied Midstate’s motions to the extent that they were based on a claimed lack of personal jurisdiction. 12 Pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY
8/8/14
Jennifer Scott v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-216-JL, Opinion No. 2014 DNH 168

The plaintiff appealed the decision of an Administrative Law Judge (“ALJ”) at the Social Security Administration denying her applications for benefits. Affirming the decision, the court ruled that (1) the ALJ supportably gave limited weight to the opinions of the plaintiff’s treating physician as to the plaintiff’s manipulative limitations, when the only support for most of those opinions was the results of functional capacity, performed by a physical therapist and, furthermore, those opinions were at odds with the plaintiff’s medical history and (2) the ALJ supportably gave controlling weight to the contrary opinions of a state agency physician that the plaintiff, despite the alleged staleness of those opinions, when nothing that had happened since the opinions were rendered served to undermine them. 13 pages. Judge Joseph N. Laplante.


8/20/14
Esmerelda Carrion v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-49-JL, Opinion No. 2014 DNH 174

The plaintiff appealed the decision of an Administrative Law Judge (“ALJ”) at the Social Security Administration denying her applications for benefits. Affirming the decision, the court ruled that (1) the ALJ properly found that the plaintiff did not meet the listing for mental retardation, given the absence of a qualifying IQ score in the record, (2) the ALJ supportably gave limited weight to the opinions of the plaintiff’s treating psychiatrist as inconsistent with both his treatment notes and those of a social worker at his practice, as well as the plaintiff’s activities of daily living, and (3) the ALJ supportably relied on those activities, which included the plaintiff’s working 25 hours per week, in finding that her reports of disabling limitations were not fully credible. 13 pages. Judge Joseph N. Laplante.


8/27/14
Scott Marshall v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-363-PB, Opinion No. 2014 DNH 180

The plaintiff appealed the decision of an Administrative Law Judge (“ALJ”) at the Social Security Administration denying his application for benefits. Affirming the decision, the court ruled that (1) any error made by the ALJ at step two of the five-step sequential analysis process was harmless because he continued to step three, (2) the ALJ considered the plaintiff’s history of cerebral trauma under the appropriate listings, (3) the ALJ provided sufficient record support for his step three findings, (4) the ALJ demonstrated sufficient consideration of the medical record with respect to each of the plaintiff’s medically determinable impairments, (5) the ALJ appropriately applied the Administration’s special psychiatric technique with respect to the plaintiff’s mental impairments, (6) the ALJ did not ignore substantial, non-cumulative evidence in function reports and treatment notes that supported the plaintiff’s claim, and (7) the ALJ appropriately weighed the various medical opinions in the record. 47 pages. Judge Paul J. Barbadoro.


8/6/14
Melissa J. Hebert v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-102-SM, Opinion No. 2014 DNH 166

Claimant moved to reverse or vacate the ALJ’s determination that she was not disabled under the Social Security Act. Specifically, she claimed the ALJ failed to: (1) properly determine her residual functional capacity; (2) correctly weigh the opinions of her treating physicians; and (3) properly assess her credibility. After carefully considering the record evidence, the court concluded that the ALJ’s decision was supported by substantial evidence and, therefore, denied claimant’s motion. 22 pages. Judge Steven J. McAuliffe.


8/19/14
Jose V. Mendoza v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-279-SM, Opinion No. 2014 DNH 172

Social Security claimant moved to reverse or vacate the ALJ’s adverse disability determination, claiming he did not weigh the medical evidence properly and failed to properly consider claimant’s language limitations. The court disagreed, concluding that substantial record evidence supported the ALJ’s determination that claimant was not disabled within the meaning of the Act. Motion to reverse or vacate denied. 26 pages. Judge Steven J. McAuliffe.


8/19/14
David R. Costa v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-241-SM, Opinion No. 2014 DNH 173

Social Security claimant moved to reverse or vacate the ALJ’s decision denying his application for disability benefits. Claimant asserted that the ALJ erred in finding that his impairments did not meet or medically equal a listing impairment; misconstruing claimant’s activities of daily living; failing to give proper weight to the testimony of claimant’s fiancee; and failing to consider all of claimant’s impairments. After reviewing the record evidence, the court concluded that the ALJ’s adverse disability determination was supported by substantial evidence and, therefore, denied claimant’s motion. 18 pages. Judge Steven J. McAuliffe.


STATUTE OF LIMITATIONS
8/25/14
Cindy Bunker v. Midstate Mutual Insurance Company, et al.
Case No. 114-cv-274-PB, Opinion No. 2014 DNH 177

Cindy Bunker was injured at a Nashua, New Hampshire rental property owned by Brian Nadeau. She brought a negligence action against Nadeau, and later filed a separate insurance coverage action against Nadeau and his insurer, Midstate Mutual Insurance Company. After Nadeau filed a cross-claim, Midstate moved to dismiss both Bunker’s and Nadeau’s claims as barred by the relevant statute of limitations. In the alternative, it sought dismissal for forum non conveniens. This court examined New Hampshire’s statute of limitations for declaratory judgment actions, which provides that in most cases, an action to determine insurance coverage must be filed within six months of the underlying complaint. It then noted that a late discovery exception applies when the facts giving rise to a coverage dispute were not known or reasonably discoverable until after the six month period had run. The court found Nadeau’s action to be barred because he could reasonably have discovered all of the relevant facts at the time the negligence suit was filed, but Bunker’s action was permitted to go forward because at a minimum her allegations left doubt as to whether she could reasonably have discovered such facts. Turning to forum non conveniens, this court noted the Supreme Court’s restrictive application of the doctrine and found that Midstate did not provide sufficient arguments to meet such restrictive standards. The court thus granted Midstate’s motion to dismiss Nadeau’s claims and denied the motion as to Bunker. 10 Pages. Judge Paul J. Barbadoro.


TAXES
8/22/14
United States of America v. Scott G. Baker and Robyn Baker
Case No. 13-cv-213-PB, Opinion No. 2014 DNH 176

The United States sued Scott and Robyn Baker to force the sale of two parcels of land in West Campton, New Hampshire pursuant to federal tax liens that had been imposed upon Mr. Baker for nonpayment of federal income tax. The Bakers claimed that the liens did not encumber the West Campton properties because Mr. Baker transferred his ownership interest in them to Ms. Baker pursuant to a divorce judgment and separation agreement prior to the date that the liens arose. The United States and Ms. Baker each moved for summary judgment. The court granted Ms. Baker’s motion and denied the United States’ motion without prejudice. It concluded that Mr. Baker’s interest in the properties had been effectively conveyed to Ms. Baker on the date of the divorce judgment, regardless of the Bakers’ failure to record the conveyance. Because the liens arose after the divorce judgment became final, they did not attach to the West Campton properties, which were no longer in Mr. Baker’s possession. 13 pages. Judge Paul J. Barbadoro.

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