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Bar News - September 16, 2015


US District Court Decision Listing

August 2015

* Published

CONSTITUTION LAW, ELECTION LAW

8/27/15
Libertarian Party of New Hampshire v. NH Secretary of State
Case No. 14-cv-322-PB, Opinion No. 2015 DNH 164*

In 2014, the New Hampshire state legislature amended the procedure for third-party ballot access to require nomination petitions to be signed in the same year as the general election. The Libertarian Party of New Hampshire (“LPNH”) sued the State, arguing that the same-year requirement is an impermissible ballot-access restriction that violates the First and Fourteenth Amendments to the U.S. Constitution. Specifically, it argued that the new requirement excessively shortens the petition collection period, conflicts with the general electioneering season, and forces third parties to remain idle during off years. This Court disagreed, concluding that none of the burdens articulated by LPNH met the legal threshold of severity necessary to subject the same-year requirement to strict scrutiny. Applying the more deferential balancing approach prescribed by the Supreme Court for non-severe ballot-access restrictions, this Court also concluded that the requirement was justified by the State’s interest in demanding parties seeking ballot access to show a sufficient amount of support within the State. Thus, this Court concluded that the same-year requirement does not violate the Constitution. 42 pages. Judge Paul J. Barbadoro.


CONSTITUTIONAL LAW, FIRST AMENDMENT

8/11/15
Leon H. Rideout, et al. v. William M. Gardner, New Hampshire Secretary of State
Case No. 14-cv-489-PB, Opinion No. 2015 DNH 154P*

New Hampshire recently adopted a law that made it unlawful for voters to take and disclose digital or photographic copies of their completed ballots in an effort to let others know how they have voted. Three voters, who were under investigation because they posted images of their ballots on social media sites, challenged the new law on First Amendment grounds. The parties filed cross motions for summary judgment. The court held that the new law was invalid because it was a content based restriction on speech that could not survive strict scrutiny. Although the state’s asserted interests in preventing vote buying and voter coercion were compelling in the abstract, the Secretary did not demonstrate that the law addressed an actual problem. Additionally, the law was not narrowly tailored to address the alleged state interests. 42 pages. Judge Paul J. Barbadoro.


CONTRACT

7/17/15
WE Cork, Inc. v. Citizens Bank, N.A.
Case No. 15-cv-85-SM, Opinion No. 2015 DNH 140

Plaintiff, a former customer of Citizens Bank, brought this action after one of its former employees stole several checks payable to plaintiff and deposited them into a personal checking account at Citizens Bank. According to plaintiff, those stolen checks lacked the requisite endorsement under its account agreement with the bank. In its complaint, plaintiff advances claims of negligence, conversion, breach of contract, and breach of fiduciary duty. The bank moved to dismiss the latter two claims, for failure to state a cause of action. The court dismissed plaintiff’s breach of fiduciary duty claim (without objection), but concluded that its complaint adequately alleged the essential elements of a viable breach of contract claim. Accordingly, as to that count, the bank’s motion to dismiss was denied. 6 pages. Judge Steven J. McAuliffe.


DISCOVERY

8/27/15
General Linen Service, Inc. v. General Linen Services, LLC
Case No. 12-cv-111-LM, Opinion No. 2015 DNH 165

In this business dispute, the defendant asked the court to exclude several portions of a report on damages prepared by the plaintiff’s expert witness. The defendant relied upon Rules 37 and 26 of the Federal Rules of Civil Procedure, arguing that the plaintiff failed to adequately supplement disclosures it had made concerning damages. The court denied the defendant’s motion to exclude on grounds that the plaintiff had provided adequate and timely disclosure of the expert opinion on which it intended to rely at trial. 8 pages. Judge Landya B. McCafferty.


EMPLOYMENT DISCRIMINATION

8/12/15
Christyna Faulkner, M.D. v. Dartmouth Hitchcock Medical Center, et al.
Case No. 12-cv-482-SM, Opinion No. 2015 DNH 157

Former medical resident sued the hospital at which she had been employed, alleging violations of the Americans with Disabilities Act and FMLA. She also advanced claims of wrongful discharge, intentional infliction of emotional distress, and defamation. Defendants moved for summary judgment on all claims. Plaintiff did not object. After carefully reviewing the record, the court concluded that defendants were entitled to judgment as a matter of law on all counts, noting that defendants granted plaintiff every accommodation she requested, worked diligently to ensure that she could succeed in their program, and discharged her only after they received a report (from plaintiff’s treating physician) that her condition (even if reasonably accommodated) could put patient safety at risk. 26 pages. Judge Steven J. McAuliffe.


FORECLOSURE

8/11/15
Bowser v. MTGLQ Investors, LP and Ocwen Loan Servicing, LLC
Case No. 15-cv-154-LM, Opinion No. 2015 DNH 149

In this case, the plaintiffs asserted various claims against the defendants arising out of their unsuccessful attempt to obtain a modification of their mortgage. At oral argument, the court dismissed seven of the plaintiff’s nine claims, and in a written order, the court dismissed the plaintiff’s claims for negligent misrepresentation and breach of the implied covenant of good faith and fair dealing. 16 pages. Judge Landya B. McCafferty.


8/11/15
Douglas Sharp v. Deutsche Bank National Trust Company, As Trustee For Morgan Stanley ABS Capital Inc. Trust 2006-HE3
Case No. 12-cv-369-LM, Opinion No. 2015 DNH 155

In this case, Douglas Sharp alleged that Deutsche Bank lacked authority to foreclose on his mortgage and breached the implied covenant of good faith and fair dealing. He also sought to amend his complaint to allege a violation of the Real Estate Settlement Procedures Act, or RESPA. Deutsche Bank moved to dismiss and objected to Sharp’s motion to amend the complaint as futile. In dismissing Sharp’s complaint, the court ruled that: (1) Deutsche Bank had authority to foreclose because there was no requirement that a mortgage assignment be recorded before the assignee exercised the power of sale; and (2) Deutsche Bank did not breach the implied covenant of good faith and fair dealing because its exercise of the power of sale was consistent with the parties’ agreed-upon purposes and justified expectations. The court denied Sharp’s motion to amend the complaint as futile because he lacked standing to raise the claim. 20 pages. Judge Landya B. McCafferty.


8/11/15
Daniel Simmons v. Wells Fargo Bank, N.A.
Case No. 14-cv-333-LM, Opinion No. 2015 DNH 156

In this case, Daniel Simmons claimed that Wells Fargo violated the implied covenant of good faith and fair dealing and the Real Estate Settlement Procedures Act, or RESPA, when it sent Simmons a foreclosure notice. Wells Fargo moved to dismiss for failure to state a claim. The court dismissed Simmons’s claim for breach of the covenant of good faith and fair dealing because Wells Fargo’s exercise of the power of sale was consistent with the parties’ agreed-upon purposes and justified expectations. The court dismissed Simmons’s RESPA claim because it was not yet ripe. 12 pages. Judge Landya B. McCafferty.


FORECLOSURE, TORTS

8/26/15
Jeffrey Bradley v. Wells Fargo Bank, N.A.
Case No. 12-cv-127-PB, Opinion No. 2015 DNH 163

Jeffrey Bradley sued Wells Fargo Bank and Ocwen Loan Servicing for damages he alleges to have suffered when Wells Fargo foreclosed on his home. He claims that the defendants hired an outside firm that wrongly placed a padlock on his house and removed some of his personal property into a dumpster without providing an eviction notice as required by New Hampshire law. He seeks damages for state law claims of wrongful self help eviction, conversion, and intentional infliction of emotional distress. The defendants moved for summary judgment, arguing that they could not be held liable for the outside firm’s conduct because the firm was an independent contractor, not their agent. This Court rejected that argument. Because the summary judgment record supported a finding that the defendants themselves had instructed the firm to perform the disputed actions, this Court concluded that Bradley’s claims asserted direct, not vicarious, liability against the defendants, rendering their independent contractor argument irrelevant. This Court also concluded that the summary judgment record did not warrant summary judgment for the defendants on any of Bradley’s particular claims. Thus, this Court denied the defendants’ motion. 18 pages. Judge Paul J. Barbadoro.


FREEDOM OF INFORMATION ACT

8/31/15
Citizens for a Strong New Hampshire, Inc. v. IRS
Case No. 14-cv-487-LM, Opinion No. 2015 DNH 158

The plaintiff in this case filed a request with the Internal Revenue Service pursuant to the Freedom of Information Act. This case arises from the plaintiff’s dissatisfaction with the IRS’s response. Both parties moved for summary judgment. In granting the IRS’s motion in part and denying the plaintiff’s motion, the court ruled that: (1) genuine issues of material fact precluded summary judgment for either side on the plaintiff’s claim that the IRS conducted an inadequate search for responsive documents; (2) the plaintiff was not entitled to summary judgment on its claim that the IRS failed to respond to its FOIA request within the time allotted for doing so; and (3) the IRS was entitled to summary judgment on the plaintiff’s claim that the IRS improperly withheld certain documents. 21 pages. Judge Landya B. McCafferty.


PATENT INFRINGEMENT

7/30/15
East Coast Sheet Metal Fabricating Corp. d/b/a EastCoast CAD/CAM v. Autodesk, Inc.
Case No. 12-cv-517-LM, Opinion No. 2015 DNH 150

In this case, the prevailing defendant on a patent-infringement claim moved for attorney’s fees. In so doing, the defendant invoked the “exceptional cases” fee-shifting provision in the Patent Act, the court’s inherent power, and Rule 11 of the Federal Rules of Civil Procedure. Because the defendant did not establish either inequitable conduct in the plaintiff’s procurement of the patents in suit or litigation misconduct by the plaintiff, its motion for attorney’s fees was denied. 25 pages. Judge Landya B. McCafferty


PRISONER LITIGATION

8/11/15
Ouwerkerk v. Rockingham County, et al.
Case No. 15-cv-99-JL, No Opinion Number

Plaintiff, a pretrial detainee, sued the County, the jail superintendent and two corrections officers under federal civil rights and state tort laws after he was beaten by a fellow inmate. Plaintiff, who suffered from psychological issues, claimed that officers’ delay in responding while they awaited backup amounted to deliberate indifference and was the result of the jail’s unconstitutional polices and practices. After hearing, court denied motion to dismiss as to officers. Motion granted without prejudice as to Monell claim based on jail policies, but denied as to classification of inmate and placing him in general jail population. Motion to dismiss granted without prejudice to amend as to ADA and Rehabilitation Act claims. State law claims dismissed based on immunity as set forth in RSA 507-B and NH Supreme Court’s opinion in Lamb v. Shaker Regional School District. (No written opinion.)


REMOVAL OF ADMINISTRATIVE PROCEEDING, 28 U.S.C. ¶ 1441(A)

8/4/15
New Hampshire Bureau of Securities Regulation v. LPL Financial, LLC
Case No. 15-cv-156-JD, Opinion No. 2015 DNH 152

After the Bureau initiated an administrative adjudicative proceeding under RSA chapter 421-B, LPL Financial removed the proceeding to federal court pursuant to 28 U.S.C. § 1441(a), asserting diversity jurisdiction under 28 U.S.C. § 1332. The Bureau moved to remand on the grounds that the proceeding was not a civil action brought in state court, as required by § 1441(a), and the Bureau was an arm of the state, not a separate entity as required for diversity jurisdiction. LPL objected and sought discovery on the jurisdictional issue. The court granted the motion to remand, concluding that the proceeding under RSA chapter 421-B was administrative and was not the functional equivalent of a civil action brought in state court. The court did not reach the issue of jurisdiction under § 1332. 11 pages. Judge Joseph A. DiClerico, Jr.


SOCIAL SECURITY

8/27/15
Daniel Richard Otero, Sr. v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-206-PB, Opinion No. 2015 DNH 161

Claimant appealed the Social Security Commissioner’s denial of his applications for a period of disability and disability insurance benefits. He argued that the Administrative Law Judge (“ALJ”) omitted a material nonexertional limitation from his residual functional capacity (“RFC”) finding and impermissibly made alternative findings at both step four and step five of the Social Security Administration’s sequential evaluation process. The court denied claimant’s request for remand and affirmed the decision of the Commissioner. The court found that substantial evidence supported the ALJ’s RFC finding including his omission of any nonexertional limitation. Additionally, the court concluded that the ALJ made no legal error in this case by finding claimant not disabled at both step four and step five. 18 pages. Judge Paul J. Barbadoro.


8/27/15
Poirier v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-242-LM, Opinion No. 2015 DNH 166

In this appeal from a denial of Social Security benefits, the decision of the Administrative Law Judge was affirmed over arguments that the ALJ erred by failing to develop the record and by failing to hear testimony from two witnesses the claimant wanted to call at his hearing. 24 pages. Judge Landya B. McCafferty.


8/27/15
Jenness v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-005-LM, Opinion No. 2015 DNH 167

In this appeal from a denial of Social Security benefits, the case was remanded because the ALJ failed to properly weigh the medical opinion of the claimant’s treating physician. 22 pages. Judge Landya B. McCafferty.


8/31/15
DiMambro v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-482-LM, Opinion No. 2015 DNH 168

In this appeal from a denial of Social Security benefits, the case was remanded because the ALJ formulated a residual functional capacity for the claimant that was not supported by a medical opinion. 12 pages. Judge Landya B. McCafferty.


TRADEMARK

8/3/15
Granite State Trade School, LLC v. The New Hampshire School of Mechanical Trades, Inc.
Case No. 15-cv-223-LM, Opinion No. 2015 DNH 151

The plaintiff and the defendant both offer courses for plumbers, gas fitters, and other tradesmen. The plaintiff, Granite State Trade School, has a website located at www.granitestatetradeschool.com. The defendant, The New Hampshire School of Mechanical Trades, uses and advertises its own website, which is located at www.nhtradeschool.com (and .net). The plaintiff alleged that the defendant’s use of these websites infringes on its trademark and is likely to confuse prospective students. The plaintiff moved for a preliminary injunction barring the defendant’s use of the challenged websites during the pendency of the litigation. Finding, among other things, that the plaintiff could not demonstrate a likelihood of success on the merits, nor the likelihood of irreparable harm in the absence of relief, the court denied the plaintiff’s motion for preliminary injunction. 27 pages. Judge Landya B. McCafferty.


VENUE (TRANSFER)

7/28/15
Sturm, Ruger & Co., Inc. v. Armscor Precision International, Inc., Rock Island Armory Exports, Inc., and Arms Corporation of the Philippines
Case No. 14-cv-194-SM, Opinion No. 2015 DNH 148

Plaintiff brought this action for trade dress infringement and dilution, asserting that defendant is manufacturing and selling a copycat of one of its most popular firearms, in violation of the Lanham Act. Defendant moved to dismiss the entire action for lack of personal jurisdiction or, in the alternative, to transfer venue to the District of Nevada. The court denied that motion, reasoning that defendant had adequate contacts with this forum to warrant the exercise of personal jurisdiction over it. Additionally, the court held that venue is proper in this forum and declined to exercise its discretionary authority to transfer to the case to another forum. 36 pages. Judge Steven J. McAuliffe.

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