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Bar News - April 15, 2015


US District Court Decision Listing

February-March 2015

* Published

BANK FRAUD; ELEMENTS OF OFFENSE

3/2/15
United States v. Oluwaseun Adekoya
Case No. 13-cr-98-JL/01, Opinion No. 2015 DNH 039*

The defendant was charged with bank fraud and conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371 & 1344, for his role in a scheme to use fraudulently manufactured ATM cards to make unauthorized withdrawals from actual bank accounts. The defendant and his co-conspirators were captured after retrieving and attempting to use the cards, which, unbeknownst to them, were blank and incapable of actually withdrawing any funds, since the scheme had been a sting operation devised by the United States Secret Service. At trial, after the prosecution rested its case, the defendant moved for a judgment of acquittal. A conviction for bank fraud, he argued, requires proof that a bank was actually victimized or exposed to a risk of loss, and since the cards in question were incapable of actually withdrawing funds, the government had not shown that such a risk existed. After receiving supplemental briefing, the court denied the motion, rejecting the defendant’s premise that he could not be convicted of bank fraud if his scheme to defraud had no hope of succeeding. To the contrary, the court explained, a defendant may be convicted of bank fraud where his scheme to defraud — whether or it is actually capable of success — would, if realized, victimize a bank or put it at risk of loss. The prosecution’s evidence, the court concluded, proved as much. 12 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS § 1983

2/10/15
John Kiernan v. The Town of Hudson, New Hampshire, and Hudson Police Officer Dan Dolan
Case No. 13-cv-480-SM, Opinion No. 2015 DNH 018

Pro se plaintiff sued the Town of Hudson and one of its police officers alleging that defendants had engaged in conduct so extreme and outrageous that it violated his Fourteenth Amendment right to substantive due process. Specifically, he claimed defendants filed false police reports against him and then ignored his calls for an internal departmental investigation. The court granted defendants’ motion to dismiss, concluding that the conduct in which defendants allegedly engaged fell far short of that necessary to make out a substantive due process violation. 13 pages. Judge Steven J. McAuliffe.


CONTRACTS; NEGLIGENCE

2/20/15
Stephen Harriman v. Patti Kemen, Individually and on behalf of REMAX Legacy; Patti Kemen Enterprises, LLC; Vendor Resource Management, Inc.; and Federal Home Loan Mortgage Corp. (a/k/a Freddie Mac)
Case No. 14-cv-237-SM, Opinion No. 2015 DNH 028

Plaintiff was severely injured while attempting to remove an above-ground pool for one or more of the named defendants. He then brought this action, advancing claims of negligence, negligent training, premises liability, and negligent and intentional infliction of emotional distress. One of the defendants — VRM, a California property management company employed by the property owner, Freddie Mac — moved to dismiss all claims advanced against it, saying it had no relationship with plaintiff and, therefore, owed him no common law duties. The court agreed, concluding that plaintiff was neither an employee nor independent contractor of VRM; rather, he had been hired by a local real estate agency to prepare the property for sale. Accordingly, VRM owed him no duties that would give rise to the common law claims advanced in his complaint. Motion to dismiss granted. 14 pages. Judge Steven J. McAuliffe.


EMPLOYMENT DISCRIMINATION

3/11/15
Gascard v. Franklin Pierce University
Case No. 14-cv-220-JL, Opinion No. 2015 DNH 049

The defendant university moved to dismiss this action by a former faculty member who alleged various forms of employment discrimination in violation of federal law. The court granted the motion in part and denied it in part. The court held that the complaint stated plausible claims that (a) the defendant’s response to the plaintiff’s complaints of situational stress — offering her the ability to participate in faculty meetings by phone or to leave when she needed to — was not a reasonable accommodation for her disability; (b) the defendant had chosen a less experienced employee for a promotion due to the plaintiff’s disability; and (c) the defendant had disclosed the plaintiff’s confidential medical information to a colleague, thus making out claims under the Americans with Disabilities Act, 42 U.S.C. § 12112 (“ADA”). The court further held that the complaint stated plausible claims that the defendant had (d) denied the plaintiff appointments on the basis of both her age and sex, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 (“ADEA”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-2, and (e) retaliated against her for filing a complaint with the EEOC. The court concluded, however, that the plaintiff could not hold the university administrators individually liable under the ADA, ADEA, and Title VII, and thus dismissed the claims against them. The court also dismissed the plaintiff’s negligence claims against all defendants, holding that those claims were barred by N.H. Rev. Stat. Ann. § 281-A:8, which makes resort to the state workers’ compensation scheme the exclusive remedy for personal injuries arising out of or in the course of employment. 26 Pages. Judge Joseph N. Laplante.


FAIR CREDIT REPORTING ACT; DEBT COLLECTION

3/11/15
Bersaw v. Northland Group
Case No. 14-cv-128-JL, Opinion No. 2015 DNH 050

In this action under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”), the plaintiff asserted that the defendant, a debt collector, had twice obtained his consumer credit report from a credit reporting agency without having had a permissible purpose for doing so. The defendant moved for summary judgment, arguing that collecting a debt is among the purposes for which a consumer credit report may be obtained under FCRA. The court denied the motion, holding that FCRA does not permit the retrieval of a consumer report in connection with the collection of any debt, but only in connection with the collection of an “account,” a term with a specific definition. The court concluded that the defendant had not presented evidence conclusively showing that the debts it sought to collect from the plaintiff met that definition. 11 Pages. Judge Joseph N. Laplante.


HABEAS CORPUS

3/6/15
Ryan Patrick Lane v. United States
Case No. 14-cv-536-PB, Opinion No. 2015 DNH 042

Ryan Lane pleaded guilty to three bank robberies – one in New Hampshire and two in Massachusetts – and was sentenced to 168 months in prison. He moved to withdraw his guilty plea and vacate his sentence pursuant to 28 U.S.C. § 2255. First, and in light of his history of mental illness, he argued that his attorney was ineffective for failing to move for a competency hearing after he was charged and for advising him to accept the government’s plea offer rather than pressing an insanity defense at trial. This Court rejected that argument, finding that his attorney’s performance was not objectively unreasonable in either instance. Second, he argued that his attorney was ineffective for advising him to waive venue and indictment for the two Massachusetts bank robberies, claiming that he could have received a more lenient sentence for the Massachusetts robberies had criminal proceedings taken place in that jurisdiction. This Court dismissed that argument as baseless speculation and concluded that his attorney’s advice was not objectively unreasonable. Third, Lane argued that his attorney was ineffective for failing to seek the suppression of his confession to the robberies because, he claimed, he was intoxicated when he confessed. This Court concluded that the attorney’s performance in this respect was not deficient because that argument would have been devoid of legal merit. Fourth, Lane claimed that he should be permitted to withdraw his guilty plea because he had not taken his prescribed mental health medications before entering the plea, rendering the plea involuntary. This Court rejected that argument, however, finding that Lane had not established that he was unable to knowingly make a guilty plea under his own free will. Lane also claimed that his attorney had told him that he could avoid prosecution for his participation in a jailhouse riot if he accepted the guilty plea. But Lane did not disclose that promise during the plea colloquy, and this Court therefore rejected Lane’s claim as unfounded and insufficient to render his guilty plea involuntary. On the basis of this analysis, this Court determined that it could dispose of Lane’s motion without having to convene an evidentiary hearing. It therefore denied Lane’s motion in all respects. 18 Pages. Judge Paul J. Barbadoro.


3/10/15
Christopher Legere v. Edward Reilly, Warden, Northern New Hampshire Correctional Facility
Case No. 10-cv-13-PB, Opinion No. 2015 DNH 046

Christopher Legere, 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 and Legere objected. The court granted the motion. With respect to two of his ineffective assistance of counsel claims, the court held that Legere failed to demonstrate that the New Hampshire Supreme Court’s (“NHSC”) decision was contrary to, or involved an unreasonable application of, established federal law, or that the NHSC unreasonably determined the facts in the record. For the other two ineffective assistance of counsel claims, the court held that the claims were procedurally defaulted and Legere failed to show prejudice. With respect to his claims that the prosecutor used facts not in evidence and that the prosecutor expressed his personal opinions, the court held that the claims were procedurally defaulted and that Legere did not show cause and prejudice arising out of his trial counsel’s failure to object. 22 pages. Judge Paul J. Barbadoro.


INSURANCE

3/19/15
Partridge v. USAA Life Insurance
Case No. 14-cv-170-JL, Opinion No. 2015 DNH 057

The parties to this dispute concerning the scope of a life insurance policy’s suicide exclusion cross-moved for summary judgment. The court granted the defendant insurance company’s motion, and denied the plaintiff’s, reasoning that the exclusion applied where the plaintiff’s decedent had taken his own life just days before the exclusion would have expired. The court held that although the language of the exclusion differed in some respects from the language mandated by applicable state insurance regulations, these differences did not serve to void the entire exclusion (as the plaintiff had argued). The court further held that the defendant was entitled to summary judgment on the plaintiff’s claim that it had breached its duty to the decedent to process his application for life insurance within a reasonable time. Assuming that New Hampshire law recognized such a duty, the court held, no reasonable trier of fact could conclude that the defendant breached that duty where the evidence showed that only two months elapsed between the date the defendant received the application and the date it granted it, and over two-thirds of that time was spent waiting to receive medical records from the decedent’s medical providers. 33 Pages. Judge Joseph N. Laplante.


MORTGAGE FORECLOSURE

3/18/15
McLaughlin v. Bank America, N.A., et al.
Case No. 14-cv-370-LM, Opinion No. 2015 DNH 056

In this five-count mortgage-foreclosure case, the court dismissed three counts on grounds of res judicata. In addition, the court dismissed with prejudice plaintiff’s claim that his mortgagee failed to mitigate its losses by engaging in dual tracking, and dismissed without prejudice plaintiffs claim that his mortgagee violated the Real Estate Settlement Procedures Act by failing to properly respond to a Qualified Written Request. 25 Pages. Judge Landya B. McCafferty.


SOCIAL SECURITY

3/11/15
Shaw v. SSA
Case No. 13-cv-503-JL, Opinion No. 2015 DNH 047

On appeal from the Social Security Administration’s denial of the claimant’s application for disability insurance benefits, the court reversed the decision of the Administrative Law Judge (“ALJ”). The court held that the ALJ had erred in failing to address the opinion of a state agency medical consultant as to the limitations posed by the claimant’s impairments. The ALJ had further erred, the court held, in rejecting the opinions of two other medical sources based primarily upon her own observations of the claimant at the administrative hearing. Conceding that there could be circumstances in which the claimant’s presentation at the hearing runs so counter to a medical opinion regarding the claimant’s limitations as to effectively undermine that opinion, the court found that the particular observations noted by the ALJ did not rise to that level. As a result, the court concluded, the ALJ’s reasons for discounting the opinions in question were not supported by substantial evidence. 9 Pages. Judge Joseph N. Laplante.


3/11/15
Sullivan v. SSA
Case No. 14-cv-6-JL, Opinion No. 2015 DNH 048

On appeal from the Social Security Administration’s denial of the claimant’s application for disability insurance benefits, the court reversed the decision of the Administrative Law Judge (“ALJ”). The ALJ had erred, the court held, in concluding that the claimant had not been disabled as of her “date last insured” without first consulting a medical advisor, as required by Social Security Ruling (“SSR”) 83-20. The court rejected the Administration’s argument that SSR 83-20 only applies when an ALJ finds that a claimant was disabled as of some point (generally, the date of the hearing), but also finds that the claimant was not yet disabled at the date last insured. That interpretation, the court noted, was contrary to the plain language of the Ruling itself. 8 Pages. Judge Joseph N. Laplante.


3/12/15
Stoumen Johnson v. SSA
Case No. 13-cv-525-JL, Opinion No. 2015 DNH 051

On appeal from the Social Security Administration’s denial of the claimant’s applications for a period of disability and disability insurance benefits, the court affirmed the decision of the Administrative Law Judge (“ALJ”). In rejecting the opinions of three of the claimant’s treating physicians, the court held, the ALJ permissibly had concluded that those opinions were not supported by, and inconsistent with, other substantial evidence in the record, including the physicians’ own treatment notes. Among other things, the court noted that the claimant had testified to a robust regimen of daily activities that were inconsistent with her claimed limitations. The court further held that the ALJ permissibly had relied upon the contrary opinions of two non-treating, non-examining physicians. 17 Pages. Judge Joseph N. Laplante.


3/17/15
Morse v. SSA
Case No. 14-cv-018-LM, Opinion No. 2015 DNH 055

This Social Security appeal was remanded to the Acting Commissioner of the Social Security Administration because the Administrative Law Judge failed to consider the effects of the claimant’s non-severe impairments past step two of the sequential evaluation process and also failed to consider the effects of the claimant’s non-severe impairments in combination with his severe impairments. 24 Pages. Judge Landya B. McCafferty.


3/31/15
Trudy E. Warneka v. SSA
Case No. 14-cv-22-PB, Opinion No. 2015 DNH 071

On appeal from the Social Security Administration’s denial of the claimant’s application for disability insurance benefits, the court reversed the decision of the Administrative Law Judge (“ALJ”). The ALJ had erred, the court held, in concluding that the claimant had not been disabled as of her “date last insured” without first consulting a medical advisor, as required by Social Security Ruling (“SSR”) 83-20. The court held that Warneka produced sufficient evidence to trigger SSR 83-20’s requirement for that the ALJ call on a medical advisor. Accordingly, the court vacated the decision of the Commissioner and remanded for further proceedings. 13 pages. Judge Paul J. Barbadoro.


TAXES

3/31/15
U.S. Bank National Association v. Harry John Bickford, et al.
Case No. 13-cv-294-PB, Opinion No. 2015 DNH 061

U.S. Bank was assigned a mortgage that correctly identified the attached property by street address and tax map number but, in an apparent mistake, incorrectly referenced a deed to a different property. After the mortgage was recorded, the IRS assessed multiple tax liens against the homeowner for unpaid taxes. U.S. Bank then foreclosed the mortgage and purchased the property at the foreclosure sale. U.S. Bank and the government disputed whether, at the time of the foreclosure sale, the tax liens were junior or senior to the mortgage. U.S. Bank offered two arguments to support its claim of priority. First, it argued that the recording of the mortgage provided sufficient notice under New Hampshire law to prime the government’s later-arising interest. This Court disagreed. It observed that the priority of federal tax liens against competing state liens is a question of federal law, which provides that a sufficiently perfected, or “choate,” state lien takes priority over subsequent federal tax liens. Whether a state lien is choate is a federal question informed by applicable state law, and, as the Supreme Court has held, a state lien that remains unperfected under state law will virtually never qualify as choate under the federal standard. Thus, this Court examined whether the mortgage was sufficiently perfected under New Hampshire law. Although New Hampshire law subjects purchasers and mortgagees to inquiry notice, it subjects other attaching creditors only to constructive notice. As recorded, this Court held, U.S. Bank’s mortgage failed to provide constructive notice because the conflicting information in the property description – the correct street address and tax map number on the one hand, and the incorrect deed reference on the other – made it impossible to determine from the record alone which property the mortgage encumbered. Thus, the mortgage was unenforceable against attaching creditors in New Hampshire, leaving it insufficiently perfected under state law to qualify as choate under federal law. Second, U.S. Bank argued that even if the error in the mortgage left it unperfected as of the recording, it was entitled to equitably reform the mortgage as of the original recording date and thereby retroactively prime the mortgage over the tax liens. This Court rejected that argument, holding that federal law does not permit a state-law relation-back doctrine to retroactively render a state lien choate at a time when it was actually inchoate. Thus, this Court concluded that U.S. Bank’s title to the property remains encumbered by the tax liens. 27 Pages. Judge Paul J. Barbadoro.


WITNESS IMMUNITY

3/5/15
Reenstierna v. Currier
Case No. 14-cv-57-JL, (Decided from the bench)

The plaintiffs in this action sought to recover damages they suffered when the defendant, while serving as an investigator for the New Hampshire Real Estate Appraisal Board, submitted a report claiming (allegedly falsely) that the plaintiffs had committed numerous violations of the standards governing real estate appraisers. The defendant moved for judgment on the pleadings, arguing that he was entitled to the absolute immunity from civil suit afforded litigation witnesses under New Hampshire law. The court denied the motion, ruling that for witness immunity to attach, a judicial proceeding must have been “contemplated in good faith and under serious consideration” at the time the defendant submitted the report. The court concluded that it was unable to determine, based on the record before it, whether the defendant or the Real Estate Appraisal Board in fact contemplated or seriously considered a disciplinary proceeding at that time. Judge Joseph N. Laplante.

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