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Bar News - October 21, 2015


US District Court Decision Listing

September 2015

* Published

ADMINISTRATIVE LAW (SUMMARY JUDGMENT)

9/24/15
Sig Sauer, Inc. v. Jones, Bureau of Alcohol, Tobacco, Firearms and Explosives
Case No. 14 cv 147 PB, Opinion No. 2015 DNH 184

In an informal administrative proceeding, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) decided that a Sig Sauer firearm component called a “baffle core” was a part “intended only for use in a [firearm] silencer” and therefore subject to the National Firearms Act. Sig Sauer sued ATF, alleging that, (1) ATF used an improper standard in concluding that the baffle core was “intended only for use in a silencer,” and (2) even if ATF used the correct standard, its decision was arbitrary and capricious under the Administrative Procedure Act. Both parties moved for summary judgment. The court granted ATF’s motion for summary judgment. The court held that (1) ATF applied the appropriate subjective intent test to determine that the baffle core was intended only for use in a silencer, and (2) ATF’s determination was supported by a rational view of the administrative record, and therefore not arbitrary and capricious. 17 pages. Judge Paul J. Barbadoro.


CHOICE OF LAW

9/29/15
TIG Ins. Co. v. EIFlow Ins. Ltd.
Case No. 14-cv-459-JL, Opinion No. 2015 DNH 186

The defendant moved for judgment on the pleadings or, in the alternative, for summary judgment that the plaintiff’s claim for recovery for breach of a reinsurance contract was barred by New Hampshire’s three-year statute of limitations. After determining that TIG, a California corporation, was not a New Hampshire resident for purposes of the choice-of-law analysis, the court weighed the five traditional choice-of-law considerations outlined by the New Hampshire Supreme Court in Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 15 (1988) and concluded that England’s six-year statute of limitations governed TIG’s claim under the agreement. Because TIG’s cause of action accrued less than six years before the suit under any theory, the court denied EIFlow’s motion. 18 pages. Judge Joseph N. Laplante.


CONTRACT / ATTORNEYS’ FEES

9/29/15
James Walsh v. Zurich American Insurance Company, American Zurich Insurance Company, and Universal Underwriters Insurance Company
Case No. 12-cv-72-SM, Opinion No. 2015 DNH 182

Plaintiff brought breach of contract and wage claims against his former employer (“Zurich”), alleging that after he sold a historically-large insurance policy on behalf of Zurich, it refused to pay him the commission to which he was entitled. Following a jury verdict in plaintiff’s favor, Zurich moved for judgment notwithstanding the verdict. The court denied that motion, concluding that the jury’s verdict was amply supported by the record evidence. Specifically, that evidence supported the jury’s conclusion that Zurich breached plaintiff’s incentive plan by refusing to pay compensation to which he was entitled and that it did so “willfully and without good cause,” despite its financial ability to pay. 30 pages. Judge Steven J. McAuliffe.


DEFAMATION

9/14/15
June White v. Cynthia Ortiz, et al.
Case No. 13-cv-251-SM, Opinion No. 2015 DNH 176

Plaintiff is the author of an “unauthorized biography” of her son - a well-known public figure who is the president of the mixed marital arts organization known as the Ultimate Fighting Championship (“UFC”). Defendant is, it would seem, a fan of both plaintiff’s son and the UFC. Following publication of plaintiff’s book, defendant published a series of statements (using several pseudonyms) on various Internet websites that were highly critical of plaintiff. Plaintiff then brought suit for defamation, libel per se, and invasion of privacy. Defendant moved to dismiss all claims, asserting that they are, in short, constitutionally protected free speech. The court disagreed and denied defendant’s motion, concluding that at least some of the statements identified by plaintiff are actionable. However, because plaintiff’s pro se complaint lacks some clarity, the court directed plaintiff to file an amended complaint, in which she specifically identifies which of the many statements attributed to defendant form the basis of this action. 16 pages. Judge Steven J. McAuliffe.


EMPLOYMENT (ADA/FMLA)

9/17/15
Elaine Gallagher v. Unitil Service Corp.
Case No. 14-cv-20-SM, Opinion No. 2015 DNH 179

After resigning from her job at Unitil, plaintiff brought suit alleging that she had been wrongfully (constructively) discharged, the victim of unlawful disability discrimination, and denied her rights under the FMLA. Unitil moved for summary judgment. The court granted that motion concluding that the undisputed facts of record reveal that: (1) plaintiff voluntarily resigned her position and was not actually or constructively discharged; (2) Unitil did not fail to accommodate plaintiff’s alleged disability, because she never asked for accommodation and Unitil did not realize (nor should it have realized) that she required some form of accommodation; and, (3) Unitil afforded plaintiff all leave she sought under the FMLA and did not interfere with her rights under that statute. 39 pages. Judge Steven J. McAuliffe.


EMPLOYMENT (FAIR LABOR STANDARDS ACT)

9/30/15
Katherine Frederick v. New Hampshire Department of Health and Human Services
Case No. 14-cv-403-SM, Opinion No. 2015 DNH 187

After plaintiff failed to return to work from FMLA leave following the birth of her child, her employer, the New Hampshire Department of Health & Human Services, terminated her employment. Plaintiff then filed suit, advancing both state and federal claims of workplace discrimination, retaliation, and wrongful discharge. Defendant moved to dismiss all of plaintiff’s claims, asserting that none states a viable cause of action. The court granted that motion, observing that many of plaintiff’s claims rest on the erroneous legal assumption that federal and state laws afford breastfeeding mothers the same rights and protections in the workplace as those afforded to lactating mothers who wish to pump breast milk for later use. They do not. And, as plaintiff’s complaint makes clear, her employer’s workplace policies on both breastfeeding and expressing milk, while perhaps stingy in spirit, were entirely consistent with both state and federal law. 30 pages. Judge Steven J. McAuliffe.


HABEAS CORPUS

9/8/15
Verenbec v. Warden, NHSP
Case No. 11-cv-161-LM, Opinion No. 2015 DNH 171

In this case a state prisoner filed a petition for writ of habeas corpus challenging his conviction on two counts of pattern aggravated felonious sexual assault. The prisoner claimed that the young witness crying on her way to the witness stand had tainted the sitting jury, in violation of his rights to due process and a fair trial. The state habeas court rejected a similar claim upon finding that the trial judge had sufficiently protected the petitioner’s rights by instructing the jury at the end of the case to base the verdict on the evidence and not on sympathy. The federal court granted the warden’s motion for summary judgment on the federal habeas petition, finding that the denial of the state habeas petition was reasonable and consistent with the presumption in federal law that juries follow instructions. 17 pages. Judge Landya McCafferty.


MORTGAGE FORECLOSURE

9/28/15
Fortin v. Ocwen Loan Servicing LLC et al.
Case No. 15-cv-122-JL, Opinion No. 2015 DNH 185

In this action to enjoin a mortgage foreclosure sale and for various other forms of relief, the court granted the motion of two defendants to dismiss the action and the motion of the third defendant for judgment on the pleadings. The court held that the plaintiff, who was not a party to the mortgage, lacked standing to bring claims for relief under the Federal Debt Collection Practices Act and the Real Estate Settlement Procedures Act or to challenge the validity of the mortgage assignment. The court further found that the plaintiff had failed to state a cognizable claim to quiet title or for fraud on the part of the lender and loan servicer. 20 pages. Judge Joseph N. Laplante.


SECTION 1983

9/15/15
Nye v. Newport Police Department, et al.
Case No. 13-cv-420-LM, Opinion No. 2015 DNH 177

In this action, brought pursuant to 42 U.S.C. § 1983, the plaintiff sued a police officer and the department that employed him, claiming that the officer sexually assaulted him during the course of an arrest. The police department was granted summary judgment on grounds that if the officer was acting within the scope of his employment, the department was entitled to statutory immunity and if he was not, the department could not be vicariously liable for the officer’s actions. 5 pages. Judge Landya B. McCafferty.


SOCIAL SECURITY

9/3/15
Alonso v. SSA
Case No. 14-cv-429-JL, Opinion No. 2015 DNH 170

Claimant sought Social Security disability benefits based on a back disorder, arthritis, depression, and anxiety. An ALJ found that claimant was not disabled within the meaning of the Social Security Act because she has sufficient residual functional capacity (“RFC”) to work at jobs that exist in significant numbers in the national economy. Claimant asserted four arguments in support of reversal: 1)that the ALJ erroneously assessed her credibility; 2) that the ALJ erred in determining her RFC; 3) that the ALJ impermissibly used the Medical-Vocational Guidelines (“Grids”) in assessing her disability and ability to work; and 4) that the ALJ failed to adequately develop the administrative record. The court affirmed the ALJ’s ruling, finding the record evidence sufficient to support the findings. 15 pages. Judge Joseph N. Laplante.


9/14/15
Maria Diaz v. U.S. Social Security Administration
Case No. 14-cv-137-PB, Opinion No. 2015 DNH 174

Maria Diaz appealed a decision of the Social Security Administration denying her claim for disability insurance benefits. Her claim had a complex procedural history: denied by an ALJ in 2011 and again in 2012, appealed to the Appeals Council in 2013, who vacated and remanded to a different ALJ, who again denied her claim. The ALJ found that Diaz suffered from numerous severe medically determinable impairments, including anxiety disorder, depressive disorder, ADD, hypertension, and fibromyalgia, among other conditions. Despite this, the ALJ concluded that Diaz has the residual functional capacity to perform work in the national economy. The court affirmed the ALJ’s ruling, rejecting Diaz’s claim that the ALJ did not follow the guidelines of SSR 12-2p, the SSA’s memorandum providing guidance on the evaluation of fibromyalgia. The court found that the ALJ’s assignment of substantial weight to two medical professionals testifying against Diaz, and limited weight to two medical professionals testifying for Diaz, fell within the discretion accorded ALJs under the substantial evidence standard. 17 pages. Judge Paul J. Barbadoro.


STANDING/FORECLOSURE

9/14/15
Roger and Lisa O’Sullivan v. Deutsche Bank National Trust Company, as Trustee for GSSA Home Equity Trust 2006-18
Case No. 15-cv-114-SM, Opinion No. 2015 DNH 175

Plaintiffs defaulted on their home mortgage loan. Deutsche Bank, the holder of the mortgage deed to plaintiffs’ property, then sought to foreclose. In response, plaintiffs obtained an ex parte temporary restraining order from the state court, on grounds that Deutsche Bank lacks authority to foreclose. Deutsche Bank removed the proceeding to federal court and moved to dismiss plaintiffs’ action, asserting that plaintiffs lack standing to challenge the validity of the assignment by which Deutsche Bank assumed their mortgage. The court agreed, noting that even assuming the truth of the alleged infirmities in the assignment to Deutsche Bank, those defects merely render the assignment of plaintiffs’ mortgage voidable (as opposed to void). And, as this court (and numerous others) has previously held, a mortgagor lacks standing to challenge a voidable transfer of his or her mortgage. 5 pages. Judge Steven J. McAuliffe.


STATUTE OF LIMITATIONS

9/22/15
Banks, et al v. Carroll, et al
Case No. 15-cv-07-PB, Opinion No. 2015 DNH 183

Keelin and Daniel Banks sued the Sunapee School District on January 8, 2015 for alleged constitutional violations that occurred during the 2008-09 school year. The applicable statute of limitations for the alleged constitutional infringements is three years. The Banks’ argued that the statute of limitations had not accrued until January 9, 2012, when they completed efforts to administratively challenge the behavior. The court rejected this argument and dismissed the claim, noting that constitutional claims are generally not subject to an administrative exhaustion requirement. 2 pages. Judge Paul J. Barbadoro.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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