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Bar News - November 19, 2014

US District Court Decision Listing
October 2014
* Published

Presby Environmental, Inc. v. Advanced Drainage Systems, Inc.
Case No. 13-cv-355-LM, Opinion No. 2014 DNH 212

The plaintiff brought suit against the defendant for alleged breaches of a settlement agreement that the parties had previously entered into in connection with prior litigation. The defendant moved for judgment on the pleadings, and the plaintiff subsequently moved to amend the complaint. Assessing Rule 16(b) of the Federal Rules of Civil Procedure, the court found that the plaintiff had failed to demonstrate good cause sufficient to merit amending the complaint. The court granted in part and denied in part the motion for judgment on the pleadings, dismissing the plaintiff’s Lanham Act claim, and permitting just one of two alleged breaches of the settlement agreement to proceed. 22 Pages. Judge Landya B. McCafferty.

United States of America v. Donald McMullin
Case No. 05-cr-142-1-SM, Opinion No. 2014 DNH 213

Defendant is a convicted felon, no longer authorized to possess firearms. And, he has repeatedly failed to fulfill his obligation under the terms of his plea agreement to identify an acceptable third party agent to take custody of, and sell, his collection of firearms. In response, the government moved the court for authorization to destroy those (presumably valuable) firearms. The court denied that motion, but authorized the government to conduct a commercially reasonable sale of the weapons and directed it to remit the sale proceeds (less reasonable costs of sale) to defendant. 3 pages. Judge Steven J. McAuliffe.

United States of America v. Miguel Garcia, Robert Barter, and Janelle Evans
Case No. 14-cr-19-1/3-SM, Opinion No. 2014 DNH 218

Defendants’ motor vehicle was stopped by a state trooper on I-95 in Hampton in the early morning hours for a minor lane violation. After determining that the driver was not impaired, the car was not stolen, and there were no outstanding warrants for any of the occupants, the state trooper issued a warning citation to the driver. But, suspecting illegal drug activity, the trooper detained the occupants for additional questioning. When the owner declined to give consent to search, the trooper ran his drug dog around the car. The dog alerted, giving rise to probable cause. Defendants moved to suppress all seized evidence (drugs) and the court granted the motion, essentially on grounds that the trooper extended the traffic stop beyond what was reasonably necessary to resolve the traffic offense, and did so without reasonable articulable suspicion that illegal activity was ongoing, so detained the occupants in violation of their Fourth Amendment right to be free from unlawful seizure. 28 pages. Judge Steven J. McAuliffe.

Dipigney v. AutoZoners, LLC
Case No. 13-cv-304-LM, Opinion No. 2014 DNH 214

In this national-origin-discrimination case, defendants were granted summary judgment because the plaintiff could not demonstrate that his discharge by the defendant was pretextual, where it was undisputed that he was terminated after carrying a handgun on company property, in violation of company policy. 17 Pages. Judge Landya B. McCafferty.

Weiss v. Dartmouth College
Case No. 13-cv-376-LM, Opinion No. 2014 DNH 221

In this employment discrimination suit, the plaintiff alleged that her supervisor at Dartmouth College had discriminated against her based on her age and gender. The defendant’s motion for summary judgment was granted where the plaintiff had not demonstrated that she had suffered an adverse employment action, or that the alleged discrimination was sufficiently onerous to constitute actionable harassment or discrimination. 21 Pages. Judge Landya B. McCafferty.

Cardigan Mountain School v. New Hampshire Insurance Company
Case No. 14-cv-116-LM, Opinion No. 2014 DNH 216

The plaintiff in this action had received notice of a potential legal claim against it arising from events alleged to have taken place in the late 1960s. The plaintiff undertook an ultimately unsuccessful attempt to locate an insurance policy issued by the defendant that it believed to have been in place during the relevant period. Though unable to find the policy itself, the plaintiff gathered certain circumstantial evidence, then brought this action against the defendant seeking a declaratory judgment that the defendant was liable for the cost of defending against the potential legal claim. The court granted defendant’s motion to dismiss on grounds that the circumstantial evidence was inadequate to demonstrate that the defendant had in fact issued a policy covering the relevant period. 15 Pages. Judge Landya B. McCafferty.

I-D Foods Corp., et al. v. David Deaver Brown, et al.
Case No. 14-cv-269-PB, Opinion No. 2014 DNH 219

I-D Foods Corp. and Fools Gold Investments Corp. sued David Brown, Simply Magazine, Inc., and ID Foods USA Corp. for trademark infringement, violations of the Anticybersquatting Consumer Protection Act and the New Hampshire Consumer Protection Act, and intentional interference with prospective contractual relations. Brown, acting pro se, moved to dismiss the action against all defendants, arguing both lack of personal jurisdiction and forum non conveniens. The court first held that Brown could not represent the corporate defendants pro se and denied Brown’s motion as to those defendants without prejudice. Next, the court held that the complaint against Brown made allegations that, if true, sufficed to establish the court’s personal jurisdiction over Brown. Finally, the court held that Brown had not met his burden for dismissal on the basis of forum non conveniens. Thus, the court denied Brown’s motion to dismiss the complaint against him. 3 Pages. Judge Paul J. Barbadoro.

East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc.
Case No. 12-cv-517-LM, Opinion No. 2014 DNH 217

The defendant in this patent case moved for partial summary judgment, seeking judgment as a matter of law that the plaintiff had not provided sufficient pre-complaint notice of its patent rights to be entitled to collect infringement damages it may have suffered before it filed its complaint. The court denied the plaintiff’s motion because the summary judgment record included evidence from which a reasonable jury could conclude that the plaintiff had provided constructive notice of its patent rights before it filed suit. 9 Pages. Judge Landya B. McCafferty.

Kary R. Estabrook v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-478-PB, Opinion No. 2014 DNH 222

Kary Estabrook sought judicial review of a ruling by the Social Security Administration denying her application for disability insurance benefits and supplemental security income. Estabrook claimed that the Administrative Law Judge (“ALJ”) erred by failing to (1) classify her mental impairments as severe at step two and (2) assign appropriate weight to her treating physician’s impairment evaluation. This court rejected Estabrook’s arguments and affirmed the Administration’s decision. First, this court held that because the ALJ found Estabrook’s lupus was severe, any error at step two was harmless. Second, this court held that the ALJ did not need to give controlling weight to a treating physician’s opinions where the physician provided multiple opinions over the course of the relevant period and did not explain material differences among them. 37 pages. Judge Paul J. Barbadoro.

Keene v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 14-142-LM, Opinion No. 2014 DNH 226

In affirming the decision of the Commissioner in this social security case, the court rejected arguments that the ALJ: (1) failed to properly assess the claimant’s credibility; (2) did not adequately develop the record; and (3) improperly determined his residual functional capacity. 21 Pages. Landya B. McCafferty.

Gloria Gean Fischer v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-463-PB, Opinion No. 2014 DNH 227

Gloria Gean Fischer appealed a decision of the Social Security Administration denying her claim for disability insurance benefits. In 2013, the ALJ concluded that Fischer suffered from sciatica but also found that Fischer’s sciatica had not become severe prior to her date last insured in 1998. Thus, the ALJ denied Fischer’s claim. He did not expressly find that Fischer was either not disabled as of the date of his decision or that she had not been disabled at any point prior to the date of his decision. Because the ALJ did not make either of these findings, this court held, Social Security Ruling (“SSR”) 83-20 required him to consult with a medical advisor before concluding that Fischer’s disability had not become severe by her date last insured. Although SSR 83-20 does not require an ALJ to consult a medical advisor where the record unambiguously establishes that a claimant was not disabled as of the date last insured, this court further held, that exception did not excuse the ALJ below because the record provided enough evidence to support a reasonable inference that Fischer’s sciatica had become severe by her date last insured. Thus, this court remanded Fischer’s claim for further administrative proceedings. 23 Pages. Judge Paul J. Barbadoro.

Charlene Sekula v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-393-SM, Opinion No. 2014 DNH 230

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying her applications for Disability Insurance Benefits and Supplemental Security Income. Specifically, claimant asserted that the ALJ’s determination of her residual functional capacity, as well as his assessment of her credibility, were inadequately supported by the record. The court disagreed, concluding that while there was certainly some evidence in the record to support claimant’s assertions of disability, the ALJ’s RFC determination and credibility assessment were well-reasoned and well-supported by substantial evidence. 17 pages. Judge Steven J. McAuliffe.

Joseph Bourget d/b/a Bourget Amusement Company v. Hillsborough County 4H Foundation, Inc.
Case No. 11-cv-88-SM, Opinion No. 2014 DNH 225

Defendant, a New Hampshire nonprofit organization, moved for partial summary judgment asserting that even if it is found liable to plaintiff on his negligence claims, damages will be statutorily capped at $250,000. The court agreed, concluding that New Hampshire’s statute limiting recovery against nonprofit organizations for the alleged negligence of their volunteers — N.H. Rev. Stat. Ann. 508:17 II — is clear and unambiguous. 11 pages. Judge Steven J. McAuliffe.

Doucette v. GE Capital Retail Bank
Case No. 14-cv-012-LM, Opinion No. 2014 DNH 215

Defendants were granted judgment on the pleadings on a claim under a federal Telephone Consumer Protection Act (“TCPA”) provision barring automated sales call because debt-collection calls, such as the ones at issue in this case, lie beyond the scope of the TCPA. 8 Pages. Judge Landya B. McCafferty.

McDermott v. Town of Salem
Case No. 13-cv-188-LM, Opinion No. 2014 DNH 224

Plaintiff sued under Title VII claiming, among other things, that a job assignment that resulted from sex discrimination and/or retaliation resulted in a back injury for which she now receives workers compensation. On the defendant’s motion for partial summary judgment, the court ruled that the workers’ compensation bar precluded her from recovering damages for her back injury in her Title VII action. 6 pages. Landya B. McCafferty.

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