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Bar News - October 15, 2014


US District Court Decision Listing
September 2014
* Published

BANKRUPTCY APPEAL
9/30/14
Kevin Charbono v. Lawrence P. Sumski, Chapter 13 Trustee
Case No. 13-cv-471-SM, Opinion No. 2014 DNH 204

Chapter 13 debtor appealed bankruptcy court’s imposition of a $100 fine for having failed to comply with a provision of his confirmed plan — that is, his failure to timely provide the Trustee with a copy of his tax return, as required. The debtor asserted that the fine was in the nature of a criminal contempt sanction which, he argued, the bankruptcy court lacks authority to impose. The court disagreed, concluding the modest fine was a non-contempt sanction that fell comfortably within the bankruptcy court’s inherent authority to sanction litigants for conduct that impugns the court’s integrity or disrupts its efficient management of proceedings. 15 pages. Judge Steven J. McAuliffe.


CIVIL RIGHTS (PRISONER)
9/5/14
David J. Widi, Jr. v. Strafford County, et al.
Case No. 13-cv-536-SM, Opinion No. 2014 DNH 187

Plaintiff, a former detainee at the Strafford County House of Corrections, brought suit alleging that he had been subjected to excessive force, in violation of the Eighth Amendment, when he was repeatedly pepper-sprayed, locked in a dry cell, refused the opportunity to wash his face and eyes, and forced to remain in chemically-soaked clothing for five days. Defendants moved to dismiss, asserting that plaintiff failed to state a viable claim because “he admits he was refusing orders from corrections officer and because correctional authorities do not violate rights by deploying pepper spray when an inmate refuses orders.” The court denied that motion, observing that if the facts are as plaintiff alleges them to be, he states a viable Eighth Amendment claim. 7 pages. Judge Steven J. McAuliffe.


COMMERCIAL REASONABILITY
9/4/14
Harley-Davidson Credit Corp. v. Galvin, et al.
Case No. 12-cv-374-LM, Opinion No. 2014 DNH 185

The plaintiff moved for summary judgment on its breach of contract claim against the individual defendant, which arose out of the defendant’s failure to repay a loan he incurred to purchase an aircraft. When the defendant failed to pay the amount due, the plaintiff repossessed and sold the aircraft, and then sued to recover the remaining deficiency balance. The defendant contested summary judgment, arguing that the aircraft was not sold in a commercially reasonable manner as required under the Uniform Commercial Code and the loan documents. The court granted the plaintiff’s motion, noting that the aircraft had been sold by an independent dealer to a third party in an arm’s length transaction, and that the defendant had not pointed to anything in the record to suggest that the dealer had sold the aircraft in an unusual way. The court held that the defendant had raised no issues of material fact concerning the commercial reasonableness of the sale of the aircraft. 23 pages.


EMPLOYMENT & FMLA
9/22/14
Alex D. McMillen v. Concord Hospital
Case No. 12-cv-77-SM, Opinion No. 2014 DNH 197

Plaintiff, a former security officer at Concord Hospital, brought suit against his former employer, alleging unlawful retaliation under the FMLA and wrongful termination. The court granted defendant’s motion for summary judgment, holding that a rational and properly instructed jury could not conclude that plaintiff’s discharge was in any way related to his invocation of leave time under the FMLA several months earlier. It also held that plaintiff’s wrongful termination claim fails as a matter of law because there is no evidence the hospital acted in bad faith or with malice when it fired him, nor is there evidence that plaintiff was fired because he engaged in conduct that public policy encourages. 21 pages. Judge Steven J. McAuliffe.


FAIR DEBT COLLECTION ACT
9/15/14
Doucette v. GE Capital Retail
Case No. 14-cv-012-LM, Opinion No. 2014 DNH 171

In a case brought pursuant to the federal Fair Debt Collection Practices Act (FDCPA) and New Hampshire’s Unfair, Deceptive, or Unreasonable Collection Practices Act (UDUCPA), the court granted defendant’s motion to dismiss the FDCPA claim, on grounds that theory of vicarious liability is not available under the FDCPA but denied motion to dismiss UDUCPA claim, based upon differences between the statutory definitions of the term “debt collector” in the two statutes and the lack of a prohibition of vicarious liability under the state statute. 10 pages. Judge Landya B. McCafferty.


MEDICAL MALPRACTICE
9/4/14
Exeter Hospital, Inc. v. David Kwiatkowski, Maxim Healthcare Services, Inc., The American Registry of Radiologic Technolo gists, and Triage Staffing, Inc.
Case No. 14-cv-9-SM, Opinion No. 2014 DNH 186

After an employee at Exeter Hospital infected more than 30 patients with Hepatitis C, the hospital sued several defendants seeking statutory contribution. Two of those defendants moved to dismiss, asserting the hospital’s complaint against them fails to demonstrate that they owed the hospital’s patients any actionable duty(ies). As for the agency that placed the employee in a different hospital several years ago, the court concluded that, as a matter of law, it breached no common law duties to the patients of Exeter Hospital. Accordingly, it granted its motion to dismiss. As for the national reporting/accrediting agency that certified the employee’s credentials and abilities, however, the court concluded that the hospital’s complaint adequately set for the essential elements of a viable claim. Its motion to dismiss was denied. 21 pages. Judge Steven J. McAuliffe.


MOOTNESS
9/8/14
Boucher v. Rioux, et al.
Case No. 14-cv-141-LM, Opinion No. 2014 DNH 170

The defendant in this tort case moved to dismiss two claims, for lack of subject-matter jurisdiction, on grounds that the plaintiff rejected an offer of judgment that would have entirely satisfied those claims. Following Justice Kagan’s dissent in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), and the Ninth Circuit’s application of Genesis in Diaz v. First American Home Buyers Protection Corp., 732 F.3d 948 (9th Cir. 2013), the court ruled that a plaintiff’s claim does not become moot upon her rejection of a Rule 68 offer of judgment. 20 pages. Judge Landya B. McCafferty.


MORTGAGE
9/18/14
Azmat Khawaja, et al. v. The Bank of New York Mellon
Case No. 14-cv-117-PB, Opinion No. 2014 DNH 195 Azmat and Dawn Khawaja brought a plea of title action against Bank of New York Mellon (“BNY Mellon”) in state court. BNY Mellon removed the action to this court and moved to dismiss for failure to state a claim. BNY Mellon held a mortgage on the Khawajas’ property. It had once tried to foreclose on the property, but after the Khawajas filed a plea of title action to enjoin that foreclosure and BNY Mellon failed to appear, the state court entered a default judgment for the Khawajas invalidating the foreclosure. BNY Mellon then foreclosed on the property a second time. After the second foreclosure sale was completed, the Khawajas brought this plea of title action to invalidate the sale, arguing that the previous default judgment precluded BNY Mellon from foreclosing on the property. This court held that § 479:25, II of the New Hampshire Revised Statutes barred the Khawajas’ argument, regardless of its substantive merits, because the Khawajas failed to raise it before the second foreclosure sale took place. Thus, this court granted BNY Mellon’s motion and dismissed the Khawajas’ action. 9 Pages. Judge Paul J. Barbadoro.

9/18/14
Michelle Willette v. Federal Home Loan Mortgage Corporation
Case No. 14-cv-238-PB, Opinion No. 2014 DNH 196

Michelle Willette filed a petition to declare the foreclosure deed to her home in Pembroke, New Hampshire invalid and to enjoin the Federal Home Loan Mortgage Corporation (“Freddie Mac”) from evicting her. Freddie Mac filed a motion to dismiss for failure to state a claim. The court held that § 479:25, II of the New Hampshire Revised Statutes bars Willette’s claim. Section 479:25, II bars mortgagors from challenging the validity of a foreclosure sale after it has occurred based on facts that the mortgagor knew or should have known prior to the foreclosure sale. The court found that Willette’s complaint was based primarily on facts that were a matter of public record and therefore she either knew or should have known them prior to the foreclosure sale. Accordingly, the court granted Freddie Mac’s motion to dismiss. 8 Pages. Judge Paul J. Barbadoro.


PERSONAL JURISDICTION
8/3/14
Bulwer v. MA College of Pharmacy and Health Sciences
Case No. 13-cv-521-LM, Opinion No. 2014 DNH 163

In a case in which a former professor at the Massachusetts College of Pharmacy sued the College in New Hampshire, the court granted the College’s motion to dismiss, ruling that the operation of a branch campus in Manchester, New Hampshire, was not sufficient to establish the court’s personal jurisdiction over the College. 16 pages. Judge Landya B. McCafferty.


PRISONER LITIGATION REFORM ACT (EXHAUSTION)
9/3/14
Crosby v. Strafford County Department of Corrections
Case No. 12-cv-383-LM, Opinion No. 2014 DNH 182

In this excessive-force case, the defendant was granted summary judgment on his federal claims against county jail on grounds that he had failed to exhaust his administrative remedies. 21 Pages. Judge Landya B. McCafferty.


PRODUCTS LIABILITY; EVIDENCE
9/30/14
Kurt West v. Bell Helicopter Textron, Inc.
Case No. 10-cv-214-JL, Opinion No. 2014 DNH 208

After a jury found in the defendants’ favor on his claims of negligence and strict products liability against them, arising out of an accident in a helicopter he was piloting, the plaintiff moved for a new trial and for relief from the resulting adverse judgment. Denying the motions, the court ruled that (1) evidence that a component in the helicopter’s engine did not meet the manufacturer’s standard was properly excluded in the absence of any connection between that fact and the plaintiff’s accident, (2) it was not plain error to allow defense counsel to question the plaintiff’s boss about whether the attempt to clean ice and snow from the helicopter before the accident was consistent with his company’s operations manual, (3) claimed lay opinion testimony was not adequately proffered and, in any event, would have been properly excluded as undisclosed expert opinion testimony, (4) curative instruction adequately remedied few statements in defense counsel’s summation that were not supported by the evidence, (5) plaintiff failed to show that defendants were even aware of, let alone culpably withheld from disclosure, relevant information about the crash of another helicopter that occurred just before trial, or that such information even existed at any point, (6) defendants’ post-trial announcements of their awareness of the phenomenon that had allegedly caused plaintiff’s accident were not newly discovered or culpably withheld evidence warranting relief from judgment, since plaintiff had received discovery demonstrating the defendants’ pre-trial awareness of that very thing, (7) failure to warn claim was properly dismissed due to plaintiff’s admitted pre-accident awareness of the danger he encountered in his accident, even if he had been unaware of the precise mechanism that allegedly brought that danger about, and (8) res ipsa loquitor instruction was not appropriate because the helicopter was not in the defendants’ exclusive control at the time of the accident; in fact, it was in plaintiff’s control. 69 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY
9/23/14
Wade A. Lincourt v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-343-SM, Opinion No. 2014 DNH 199

Claimant moved to reverse or vacate the Commissioner’s decision denying his applications for Disability Insurance Benefits, Supplemental Security Income, and Child’s Disability Benefits. Specifically, he asserted that the ALJ’s hypothetical question to the vocational expert failed to account for all of his non-exertional limitations. The court disagreed, concluding that the ALJ’s hypothetical question and his adverse disability determination were both supported by substantial evidence in the record. 15 pages. Judge Steven J. McAuliffe.


9/11/12
James Samuel Levesque v. Carolyn Colvin
Case No. 13-cv-298-JL, Opinion No. 2014 DNH 191

The plaintiff appealed the denial of his application for Social Security benefits by an Administrative Law Judge. Granting the plaintiff’s motion to reverse the decision, and denying the Acting Commissioner’s motion to affirm it, the court ruled that, because the record evidence suggested that the plaintiff suffered from more than a relatively mild physical impairment with no significant exertional restrictions, the ALJ erred by finding the plaintiff retained the residual functional capacity for sedentary work in the absence of a medical opinion to that effect. 6 pages. Judge Joseph N. Laplante.


9/23/12
Jacob Perry v. Carolyn Colvin
Case No. 13-cv-229-JL, Opinion No. 2014 DNH 198

The plaintiff appealed the denial of his application for Social Security benefits by an Administrative Law Judge. Denying the plaintiff’s motion to reverse the decision, and affirming the Acting Commissioner’s motion to affirm it, the court ruled that, while, before reaching his decision, the ALJ should have acted to obtain the additional pages of a neuropsychological report on the plaintiff that were missing from the record, that error did not warrant reversal, because the report was entirely consistent with the ALJ’s findings. 9 pages. Judge Joseph N. Laplante.


9/27/14
James Russell v. Carolyn Colvin
Case No. 13-cv-398-JL, Opinion No. 2014 DNH 205

The plaintiff appealed the denial of his application for Social Security benefits by an Administrative Law Judge. Denying the plaintiff’s motion to reverse the decision, and affirming the Acting Commissioner’s motion to affirm it, the court ruled that, (1) the ALJ did not err by failing to apply the “borderline situation” rule, see 20 C.F.R. §§ 404.1563(b), 416.963(b), in determining the onset date of the plaintiff’s disability, since the ALJ had found that the plaintiff became disabled only by virtue of his entry into an older age category on the onset date, (2) medical opinions that the plaintiff could stand or walk “less than” 2 hours in an 8-hour workday were consistent with the ALJ’s finding that the plaintiff could perform sedentary work, (3) the ALJ did not err by failing to inquire into the fact that, after the hearing, a state agency had awarded disability benefits to the plaintiff, since the inquiry would not have turned up anything helpful to his Social Security Claim, and (4) the ALJ did not need to consult a medical advisor as to the onset date of the plaintiff’s disability, since the record was not ambiguous on that point. 14 pages. Judge Joseph N. Laplante.


9/30/14
Anna Duguay v. Carolyn Colvin
Case No. 13-cv-273-JL, Opinion No. 2014 DNH 207

The plaintiff appealed the denial of her application for Social Security benefits by an Administrative Law Judge. Denying the plaintiff’s motion to reverse the decision, and granting the Acting Commissioner’s motion to affirm it, the court ruled that (1) because the ALJ had identified the plaintiff’s post-traumatic stress (“PTSD”) and anxiety disorder as a severe impairment, the decision could not be reversed for erroneously identifying the fainting episodes she blamed on her PTSD as seizures, because the ALJ considered the limiting effect of the fainting episodes in the balance of his decision, (2) the ALJ’s ruling that the plaintiff’s PTSD and anxiety was not a listed impairment was both adequately supported and adequately explained, and (3) the ALJ supportably decided to give substantial weight to the opinions of a state agency psychiatrist who reviewed the plaintiff’s medical records, rather than her treating psychologist. 12 pages. Judge Joseph N. Laplante.

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