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Bar News - January 21, 2015


US District Court Decision Listing
December 2014
* Published

AMERICANS WITH DISABILITIES ACT
12/29/14
Mark Bellerose v. School Administrative Unit #39
Case No. 13-cv-404-PB, Opinion No. 2014 DNH 265

Mark Bellerose, a former school custodian, sued School Administrative Unit #39 (“SAU #39”) for violations of the Americans with Disabilities Act (the “ADA”) and New Hampshire state law. Bellerose claimed that SAU #39 violated the ADA by refusing to renew his contract and later failing to rehire him because he suffers from Asperger’s Disorder. He bases his state law claims on the alternative theory that SAU #39 refused to employ him because he spoke out about health and safety issues at the school. The court granted SAU #39’s motion for summary judgment on two of seven claims. First, the court granted the motion on Bellerose’s failure to engage in an interactive process claim because he did not make a sufficient request for an accommodation. Second, the court granted summary judgment on Bellerose’s ADA retaliation claim because Bellerose failed to show that SAU #39’s legitimate, non-retaliatory reasons for hiring someone else were pretextual. Two ADA claims and all three state claims remain. 29 pages. Judge Paul J. Barbadoro.


ATTORNEY-CLIENT PRIVILEGE
12/9/14
Arthur Berndt, Individually, as Trustee of the Lloyd Charitable Lead Trust Np. 2 and as Trustee of the Maverick Lloyd Foundation v. Gordon Snyder
Case No. 13-cv-368-SM, Opinion No. 2014 DNH 256

The defendant sought to compel third parties, Joseph McDonald and the law firm for which McDonald worked, to produce certain documents that they had withheld on the basis of the work product doctrine. The defendant also sought documents from the plaintiff that the plaintiff had withheld under the attorney-client privilege. The defendant argued that neither the plaintiff, McDonald, nor McDonald’s firm could withhold the documents because the joint client exception precluded any protection based on either the work product doctrine or the attorney-client privilege. The defendant also contended that the plaintiff had waived any privilege or protection as to the documents by putting statements by McDonald in the record. In denying the motion to compel, the court held that the joint client exception did not apply. The court reasoned that although McDonald’s deposition testimony suggested that there was a joint representation, he had corrected his testimony with an errata sheet which was entitled to be credited. The court also held that the plaintiff had not waived any privilege or protection because he had not put any protected or privileged statements at issue in the case. 23 pages. Magistrate Judge Andrea Johnstone.


INSURANCE
12/30/14
The Prudential Insurance Company of America v. Penny Santy and Debra Menard
Case No. 14-cv-288-AJ, Opinion No. 2014 DNH 263

The plaintiff brought an interpleader action to resolve competing claims to the benefits of two life insurance policies it had issued. The competing claims were made by Debra Menard, the decedent’s ex-sister-in-law who was listed as the contingent beneficiary of the policies, and Penny Santy, the decedent’s wife. Menard moved to dismiss the complaint, arguing that she had an insurable interest at the time the decedent took out the policies and named her as the contingent beneficiary. Santy objected, arguing that Menard severed her insurable interest when she divorced the decedent’s brother in 2002. In granting the motion to dismiss, the court noted that although the parties agreed on the issue, it was not clear that Menard’s right to recover the death benefits was contingent on her having an insurable interest in the decedent’s life, since the policy was obtained by the decedent himself. The court went on to hold that the divorce decree did not prevent Menard’s recovery on the policy because it did not automatically destroy Menard’s beneficiary status. 10 pages. Magistrate Judge Andrea Johnstone.


CONSTITUTIONAL LAW
12/30/14
Libertarian Party of New Hampshire v. William M. Gardner, New Hampshire Secretary of State
Case No. 14-cv-322-PB, Opinion No. 2014 DNH 266

Third parties in New Hampshire can have their candidates placed on a statewide general election ballot by obtaining nomination papers from three percent of the registered voters in this State. In July 2014, the General Court added a new restriction requiring that all nomination papers be signed in the same year as the general election. The Libertarian Party of New Hampshire sued to invalidate this same-year restriction as an unconstitutional ballot access regulation under the First and Fourteenth Amendments. The same-year restriction, the Party alleged, would shorten the available time to collect the signatures required to place candidates on the ballot. The Party also alleged that the restriction would also force the Party to collect signatures during the prime electioneering season immediately preceding a general election. The State moved to dismiss the complaint, arguing that the same-year restriction is reasonable as a matter of law. This court disagreed, concluding that the intensively fact-dependent framework formulated by the Supreme Court for evaluating constitutional ballot-access claims precluded it from dismissing the case at the 12(b)(6) stage based solely on the pleadings. Thus, this court denied the State’s motion to dismiss the Libertarian Party’s claim. 13 Pages. Judge Paul J. Barbadoro.


HABEAS CORPUS
12/5/14 Marco Garcia v. United States
Case No. 13-cv-086-PB, Opinion No. 2014 DNH 250

In 2010, Marco Garcia was convicted in this court of conspiracy to distribute cocaine and to distribute it with intent to distribute. He was sentenced to 198 months in prison. Garcia moved to vacate his sentence pursuant to 28 U.S.C. § 2255. He claimed ineffective assistance of counsel caused by his trial counsel’s failure to investigate and call certain witnesses, impeach certain government witnesses, and investigate alleged prosecutorial misconduct and witness tampering. After holding an evidentiary hearing, this court rejected each of these ineffective assistance claims because Garcia failed to show that he was prejudiced by any of his trial counsel’s alleged errors, even assuming that those errors were objectively unreasonable. Garcia also argued that the trial court had violated his Confrontation Clause rights because a government witness had testified about events that she learned about from another coconspirator who did not testify. Garcia argued that the Confrontation Clause entitled him to cross-examine that coconspirator. This court rejected Garcia’s argument, concluding that the coconspirator’s statements to the witness were made in furtherance of a conspiracy and, therefore, were not testimonial. Finally, Garcia claimed ineffective assistance on the part of his counsel on direct appeal for failing to directly consult with Garcia and to raise certain issues on appeal. This court rejected those claims, finding that Garcia had not been prejudiced by any of his appellate counsel’s alleged errors. Thus, this court denied Garcia’s motion for relief under § 2255. 27 Pages. Judge Paul J. Barbadoro.


MORTGAGE FORECLOSURE
12/29/14
Derry & Webster, LLC v. Bayview Loan Servicing, LLC
Case No. 14-cv-211-PB, Opinion No. 2014 DNH 264

Derry & Webster sued Bayview for damages stemming from Bayview’s foreclosure of property formerly owned by Derry & Webster. The complaint alleged that Bayview offered to accept a short sale in exchange for Derry & Webster’s assent to Bayview’s motion in the related bankruptcy proceeding for relief from the automatic stay. The complaint further alleged that after the bankruptcy court lifted the automatic stay, Bayview proceeded to foreclose on the property rather than accept a short sale as settlement of Derry & Webster’s debt. Derry & Webster brought claims for breach of contract, breach of the implied covenant and good faith and fair dealing, violation of the New Hampshire Consumer Protection Act, intentional and negligent misrepresentation, and promissory and equitable estoppel. Bayview moved to dismiss Derry & Webster’s complaint, which this court granted in part and denied in part. Bayview argued that Derry & Webster had no cause of action against Bayview because Bayview would have received relief from the automatic stay with or without Derry & Webster’s assent to its motion. This court disagreed, holding that Derry & Webster’s forbearance supported its claims of breach of contract, good faith and fair dealing, fraud, promissory estoppel, and violation of the Consumer Protection Act. This court dismissed Derry & Webster’s claims of negligent misrepresentation and equitable estoppel, however, finding them duplicative of the other claims lodged by the complaint. 22 Pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY
12/5/14
Thomas J. Hainey v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-144-SM, Opinion No. 2014 DNH 254

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his applications for Disability Insurance Benefits and Supplemental Security Income. Specifically, claimant asserted that the ALJ failed to properly account for opinions from two examining physicians, both of whom opined that claimant’s cognitive functioning is substantially impaired (opinions which, if credited, suggest that claimant is disabled). The court agreed, concluding that the ALJ failed to adequately explain his decision to substantially discount those opinions. Claimant’s motion to remand granted. 17 pages. Judge Steven J. McAuliffe.


CIVIL ACTIONS; JUDICIAL ESTOPPEL
12/3/14
Trafton v. Koplove
Case No. 14-cv-155-JL, Opinion No. 2014 DNH 249

The plaintiff in this action sought to challenge the validity of a note and mortgage he gave to the defendants, his former in-laws. The court granted the defendants’ motion to dismiss, holding that the doctrine of judicial estoppel barred the plaintiff from challenging the note and mortgage. The court noted that during the divorce action involving the plaintiff and the defendants’ daughter, the plaintiff had both acknowledged the existence and validity of the debt and agreed that the defendants could foreclose, and the divorce court had accepted those representations when ordering an equitable division of the marital estate. Having won a favorable allocation of property in that action by dint of his earlier representations, the plaintiff could not take a contrary position in subsequent litigation, the court reasoned–-even if, as the plaintiff argued, those representations could be characterized as “legal conclusions or opinions,” and notwithstanding the fact that the defendants were not parties to the divorce proceeding. 17 pages. Judge Joseph N. Laplante.


HABEAS CORPUS
12/5/14
United States of America v. Escolastico Suero
Case No. 09-cr-253-JL, Opinion No. 2014 DNH 253

After pleading guilty to one count of misprision of felony, and completing the resultant sentence, the petitioner filed a petition for a writ of error coram nobis seeking to vacate the conviction on the grounds that his plea had resulted from a misrepresentation by either the prosecutor or defense counsel as to the “immigration consequences” of his conviction. Specifically, the petitioner claimed that he had been told that a conviction for misprision of felony would not carry “immigration consequences” when, in fact, it prevents him from re-entering the country should he choose to leave voluntarily. Denying the petition, the court found that the petitioner had failed to persuasively show that either the prosecutor or defense counsel had told him the plea would be free of “immigration consequences”--only that it would not result in his deportation from the county, which was accurate (and did not further imply that it would not also result in his exclusion should he choose to leave the country voluntarily). 14 pages. Judge Joseph N. Laplante.

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