New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

Set Your Business Apart - Advertise with NH Bar News!

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - May 20, 2015


US District Court Decision Listing

March-April 2015

* Published

CIVIL RIGHTS § 1983

3/30/15
Christopher Kean v. City of Manchester; Manchester Police Department; Chief David J. Mara; and Officer Kelly McKenney
Case No. 14-cv-428-SM, Opinion No. 2015 DNH 069

Plaintiff was indicted for impersonating a police officer, but subsequently acquitted by the Superior Court. He then filed this action, in which he advances numerous federal and state claims against the arresting officer and City of Manchester. Defendants moved to dismiss four claims, all of which allege some type of malicious or retaliatory prosecution. The court granted that motion, concluding that the indictment established that there was probable cause to prosecute plaintiff and, therefore, precluded him from pursuing any malicious/retaliatory prosecution claims. 12 pages. Judge Steven J. McAuliffe.


ERISA

4/10/15
Smith-Emerson v. Liberty Life Assurance Co. Of Boston
Case No. 14-cv-120-PB, Opinion No. 2015 DNH 080

Nicole Smith-Emerson brought this appeal under the Employee Retirement Income Security Act of 1974 (“ERISA”) of the decision of Liberty Life Assurance Co. of Boston to terminate her disability benefits provided through the long-term disability plan of Citizens Financial Group, her former employer. She moved for this Court to review her claim de novo rather than under the more deferential arbitrary and capricious standard. This Court concluded that the Citizens plan contained an express delegation of discretionary authority to the plan administrator, which, under the Supreme Court’s decision in Firestone Tire & Rubber Co. B. Bruch, was sufficient to trigger deferential review. Smith-Emerson argued that a separate provision of the plan rendered the plan’s delegation of discretion ambiguous, but this Court rejected that argument. Smith-Emerson also attempted to distinguish between an initial denial and a termination of benefits, arguing that the delegation of discretion provision applied only to initial denials. This Court concluded, however, that the plan administrator had discretion to render both initial denials and subsequent terminations of benefits. Thus, this Court concluded that the deferential arbitrary and capricious standard would apply to Smith-Emerson’s claim. 9 pages. Judge Paul J. Barbadoro.


FAIR AND ACCURATE CREDIT TRANSACTIONS ACT

4/9/15
Foley v. Buckley’s Great Steaks, Inc.
Case No. 14-cv-063-LM, Opinion No. 2015 DNH 078

Plaintiff, who alleges that she received a credit card receipt that did not comply with the Fair and Accurate Credit Transactions Act (“FACTA”), brought a putative class action against the restaurant that provided her with the non-compliant receipt. The court denied plaintiff’s motion for class certification on grounds that the named plaintiff was not an adequate class representative and that a class action was not the superior method for resolving this dispute. 24 pages. Judge Landya B. McCafferty.


FORECLOSURE

4/7/15
LaCourse v. Ocwen Loan Servicing, LLC, et al.
Case No. 14-cv-013-LM, Opinion No. 2015 DNH 077

Plaintiffs, mortgagors who sought unsuccessfully to modify their mortgage loan, sued their mortgage servicer and their mortgagee under a variety of legal theories related to the servicer’s conduct during the process of seeking a modification. Their principal claim is that during the process, the servicer provided inaccurate information about their debt-to-income ratio and that, if a modification decision had been made based upon accurate information, a commercially feasible modification could have been arranged. Plaintiffs also made claims under the Fair Debt Collection Practices Act. The court granted defendants’ motion to dismiss under Rule 12(b)A(6). 35 pages. Judge Landya B. McCafferty.


4/9/15
Monchgesang v. Deutsche Bank National Trust Co.
Case No. 14-cv-262-LM, Opinion No. 2015 DNH 079

In a foreclosure case in which the plaintiffs attempted to invoke res judicata to block the foreclosure of their mortgage, based upon various prior state-court decisions, the court granted defendants judgment on the pleadings. 25 pages. Judge Landya B. McCafferty.


FUTILITY OF AMENDMENT, RULE 15(a), SUPPLEMENTAL JURISDICTION

4/15/15
Matthew Levine v. Town of Pelham
Case No. 14-cv-474-JD, Opinion No. 2015 DNH 082

After the defendants removed the case from state court and filed motions for judgment on the pleadings, the plaintiff moved to amend his complaint. The town and police department opposed the motion to amend on grounds of futility. The court concluded that the motion to amend, as to the single federal claim under 42 U.S.C. § 1983, was futile because that claim was untimely. In the absence of a federal claim, the court declined supplemental jurisdiction under 28 U.S.C. § 1367(c) and remanded the case to state court. 11 pages. Judge Joseph A. DiClerico, Jr.


HABEAS CORPUS

4/22/15
Daniel E. Ayer, Sr. v. Warden, New Hampshire State Prison
Case No. 07-cv-304-SM, Opinion No. 2015 DNH 081

Petitioner, Daniel Ayer, was tried and convicted of first degree murder. His conviction was affirmed on appeal and, after his efforts to obtain post-trial relief in the state courts were unsuccessful, Ayer sought federal habeas corpus relief. He advanced nine claims, including assertions that he was denied his constitutionally protected right to represent himself at trial and that his due process rights were violated when the trial court refused to instruct the jury on certain lesser offenses. The court denied Ayer’s petition, concluding that he failed to demonstrate that the challenged state court rulings were based on an unreasonable determination of facts or that they were contrary to, or involved an unreasonable application of, clearly established federal law. 27 pages. Judge Steven J. McAuliffe.


INTELLECTUAL PROPERTY - PATENTS

3/27/15
Emseal Joint Systems, Ltd. v. Schul International Co., LLC; Steven R. Robinson; Brian J. Iske; Willseal, LLC; and Ion Management, LLC
Case No. 14-cv-358-SM, Opinion No. 2015 DNH 066

Defendants in this patent infringement case moved the court to stay all proceedings, pending the outcome of the USPTO’s reexamination of the patent at issue. The court granted that motion, concluding that while a patent reexamination proceeding does not automatically serve to stay pending federal litigation, in this case such a stay was warranted. Plaintiff failed to show it would be prejudiced by a modest delay and the court would benefit from the USPTO’s special expertise and evaluation of both the patent and relevant prior art. 11 pages. Judge Steven J. McAuliffe.


MEDICAL MALPRACTICE

4/3/15
Farley v. United States of America
Case No. 13-cv-261-LM, Opinion No. 2015 DNH 064

The plaintiff in this Federal Tort Claims Act case brought suit against the United States on behalf of her husband, who suffered two strokes in 2010, the second of which was a catastrophic stroke that left him with “locked-in” syndrome. The plaintiff alleged that her husband’s treating physicians at the Veterans Administration Medical Center in Manchester, New Hampshire failed to properly diagnose the cause of the first stroke, and therefore failed to prescribe medication that would have averted the second, catastrophic stroke. Following a bench trial, the court found that the United States was liable for medical malpractice and awarded damages to the plaintiffs totaling $21,568,710.62. 123 pages. Judge Landya B. McCafferty


MORTGAGE FORECLOSURE; LOAN MODIFICATION

4/17/15
Rouleau v. U.S. Bank, NA et al.
Case No. 14-cv-568-JL, Opinion No. 2015 DNH 084

The plaintiff mortgagors in this action sought to enjoin a foreclosure sale, alleging that the defendant mortgagee had both breached the covenant of good faith and fair dealing and violated regulations implementing the Real Estate Settlement Procedures Act (“RESPA”) by proceeding with foreclosure without first considering the plaintiffs’ application for a loan modification. On the defendant’s motion, the court dismissed the first count, concluding that the covenant of good faith and fair dealing did not apply where the mortgage expressly permitted the defendant to respond to the plaintiffs’ default by foreclosing. The court declined, however, to dismiss the RESPA count. It ruled that although the statutory provisions under which the plaintiffs sought recovery governed the conduct of “servicers”–-which the defendant undisputedly was not–-the defendant potentially could be held vicariously liable for actions in violation of RESPA that a servicer took on its behalf. 19 pages. Judge Joseph N. Laplante.


PATENT; CLAIM CONSTRUCTION

4/23/15
Media Digital, Inc. v. Toshiba America Information Systems, Inc. et al.
Case No. 12-cv-313-JL, Opinion No. 2015 DNH 088

The parties to this patent infringement case presented competing constructions of numerous claim terms from U.S. Patent No. 6,101,324, dealing with a computer touch screen radio station control system. The parties also sought the court’s guidance on the corresponding structure for several of the patent’s means-plus-function limitations. Construing the patent, the court ruled, among other things, that (1) “source” means “an electrical or electronic device which provides a signal which may form a portion of the program,” (2) “operators” means “personnel in an audio or video production or broadcast studio responsible for controlling the technical equipment necessary for an audio, visual, or audiovisual production or broadcast,” (3) “announcers” means “personnel in an audio or video broadcast studio responsible for speaking or otherwise presenting information to listeners or viewers,” and (4) a “scheduled log of program events” is “a previously-assembled ordered list of events to be activated for broadcast or airing.” The court further ruled that it was unable to determine the corresponding structure for many of the patent’s means-plus-function limitations, as the specification failed to disclose appropriate algorithms for performing some computer-implemented functions. The court held, however, that functions of “displaying” and “receiving input information” could be performed by general-purpose computers without specialized programming, and therefore the specification need not disclose algorithms for performing those functions. 51 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY

4/1/15
Mohr v. Colvin, Acting Commissioner SSA
Case No. 14-cv-245-JD, Opinion No. 2015 DNH 073

The claimant argued that the ALJ erred in giving little weight to her primary care doctor’s opinion, in failing to consider his opinion about absenteeism, and in relying on a clerical error by the Social Security Administration to find that the claimant could do her past work. The court concluded that the ALJ properly assessed the opinions provided by the claimant’s primary care doctor under 20 C.F.R. § 404.1527(b). The court also concluded that the ALJ supportably found that the claimant could do her past relevant work, as the claimant described that work in her Disability Report, and that the claimant had not shown that the Disability Report assessment was based on an error by the Social Security Administration. 16 pages. Judge Joseph A. DiClerico, Jr.


4/21/15
William Earl Eley v. SSA
Case No. 14-cv-165-JL, Opinion No. 2015 DNH 085

On appeal from the Social Security Administration’s denial of the claimant’s application for disability insurance benefits, the court affirmed the decision of the Administrative Law Judge (“ALJ”). In giving less weight to the opinions of the claimant’s treating physician, 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 physician’s other opinions. The court further held that the ALJ permissibly had relied upon the contrary opinions of a non-treating, non-examining physician. 13 pages. Judge Joseph N. Laplante.


SUPPLEMENTAL JURISDICTION

3/30/15
Tracy Coyne v. The Trustees of Dartmouth College
Case No. 14-cv-517-SM, Opinion No. 2015 DNH 070

Plaintiff brought this action against her former employer, alleging various state and federal claims arising out of that employment relationship. Defendant timely removed the action to federal court. Plaintiff then moved the court to sever her state law claims and remand them to state court, asserting that the court lacked supplemental (subject matter) jurisdiction over those claims. The court disagreed, holding that plaintiff’s state and federal claims were sufficiently related to conclude that they arose out of a common core of operative facts. Accordingly, the court could properly exercise supplemental jurisdiction over plaintiff’s state law claims. 13 pages. Judge Steven J. McAuliffe.


SUPPRESSION

4/17/15
United States of America v. Robert L. Pierre
Case No. 14-cr-130-1-SM, Opinion No. 2015 DNH 083

Defendant, Robert L. Pierre, moved to suppress all evidence seized (drugs, drug paraphernalia, and a firearm) as the result of a traffic stop and subsequent search of his vehicle based on the officer’s claim that he smelled fresh marijuana when the defendant opened his car door. The government opposed the defendant’s motion. First, the court concluded that the officer had reasonable suspicion that criminal activity was afoot justifying the initial traffic stop. Next, the court found that the officer credibly testified that he smelled fresh marijuana emanating from the vehicle, and, that the circumstances confirmed the plausibility of that claim, providing him with probable cause to seize and search the defendant’s vehicle. Consequently, the court denied the defendant’s motion to suppress. 17 pages. Judge Steven J. McAuliffe.


WORKERS’ COMPENSATION

4/2/15
Maureen McPadden v. Wal-Mart Stores East, L.P., and Jennifer Fonseca
Case No. 14-cv-475-SM, Opinion No. 2015 DNH 074

Plaintiff brought suit against her former employer, Wal-Mart, asserting two categories of claims. First, she alleged that Wal-Mart discriminated against her and wrongfully terminated her employment. Additionally, she alleged that she was a customer of Wal-Mart’s in-store pharmacy and claimed that Wal-Mart wrongfully accessed and disseminated her private and protected medical information. Wal-Mart moved to dismiss three claims in the latter category on grounds that they are barred by the exclusivity provisions of New Hampshire’s Workers’ Compensation Law. The court denied the motion, concluding that the state workers’ compensation statute does not bar claims advanced in plaintiff’s capacity as a customer of Wal-Mart’s pharmacy. 5 pages. Judge Steven J. McAuliffe.

Your New Hampshire resource for professional investigative services since 2005.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer