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Bar News - November 18, 2015


US District Court Decision Listing

October 2015

* Published

COMPUTER FRAUD AND ABUSE ACT

10/20/15
General Linen Service, Inc. v. General Linen Service Co., Inc.
Case No. 12-cv-111-LM, Opinion No. 2015 DNH 195

The defendant moved for summary judgment on the plaintiff’s Computer Fraud and Abuse Act (“CFAA”) claim, arguing that the plaintiff had failed to show “loss” recognized by the CFAA and that, even if it did, any loss did not amount to at least $5,000, as required under the CFAA. In denying the motion, the court held that, contrary to the defendant’s argument, the plain language of the CFAA does not limit “loss” to only costs arising out of the interruption of service. The court also held that, viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find that the plaintiff’s employees’ time spent investigating the CFAA offense constituted a loss of at least $5,000. 17 pages. Judge Landya McCafferty.


CRIMINAL LAW; SEARCH AND SEIZURE

10/7/15
United States of America v. Jonathan Tanguay
Case No. 11-cr-173-JL, Opinion No. 2015 DNH 188*

In child pornography case, court originally denied motion to suppress evidence seized pursuant to search warrant, categorically finding, inter alia, that warrant affiant had no duty of further inquiry with respect to informant’s criminal history and prior involvement with law enforcement. 2012 DNH 187. Court of Appeals vacated and remanded for further consideration, holding that circumstances could give rise to such a duty. On remand, district court found that duty of further inquiry was triggered, that failure to so inquire was reckless, and that inquiry would have yielded information that should have been included in affidavit. Ultimately, however, the court found that even after inserting the recklessly omitted facts, the corrected warrant affidavit would establish probable cause. 13 pages. Judge Joseph N. Laplante.


DECLARATORY JUDGMENT ACT, JURISDICTION: CASE OR CONTROVERSY

10/13/15
Deutsche Bank National Trust Co., as Trustee v. Jennifer L. Pike
Case No. 15-cv-304-JD, Opinion No. 2015 DNH 196

After the New Hampshire Supreme Court affirmed the dissolution of the injunction against foreclosure on Jennifer Pike’s home, Deutsche Bank brought suit in federal court seeking a declaratory judgment that Pike did not have a right to a homestead exemption on the property. Pike moved to dismiss the action on the grounds that jurisdiction was lacking and that Deutsche Bank failed to state a cause of action. In response, Deutsche Bank clarified that it was not seeking a judgment as to foreclosure or to evict Pike from the home but argued that this court had jurisdiction to issue a declaratory judgment as to Pike’s right to a homestead exemption. The court denied the motion to dismiss, concluding that the issue of Pike’s right to a homestead exemption presented a ripe case or controversy and that Deutsche Bank had standing to bring the claims. Although not addressed by the parties, the court also determined that it would exercise its discretion under the Declaratory Judgment Act to decide the claims. 12 pages. Judge Joseph A. DiClerico, Jr.


EMPLOYMENT LAW

10/27/15
Todd v. Aggregate Industries - Northeast Region
Case No. 14-cv-393-JL, Opinion No. 2015 DNH 199

The defendant moved for summary judgment on the plaintiff’s claim for wrongful termination and for judgment on the pleadings on his claim for breach of the covenant of good faith and fair dealing. Denying the motion for summary judgment, the court ruled that a rational jury could find that (1) public policy encouraged the plaintiff to file a workers’ compensation claim after he was injured on the job, (2) the defendant fired the plaintiff for making that claim, and (3) it acted out of bad faith or malice in doing so. The court denied the defendant’s motion for judgment on the pleadings to the extent the plaintiff alleged that his termination itself violated the aforementioned covenant, absent clear guidance from the New Hampshire Supreme Court as to whether a wrongful termination claim subsumes such a cause of action, but granted it to the extent the plaintiff alleged that the manner of his termination breached the covenant as it serves to limit discretion in contractual performance. 28 pages. Judge Joseph N. Laplante.


EMPLOYMENT LAW; SUBJECT MATTER JURISDICTION

10/29/15
PC Connection v. Price
Case No. 15-cv-208-PB, Opinion No. 15 DNH 202

PC Connection, Inc. sued its former employee, Stephen P. Price, alleging breach of Price’s employment contract, breach of the implied covenant of good faith and fair dealing, conversion, and breach of fiduciary duties. Price moved to dismiss all claims for lack of subject matter jurisdiction and, in the alternative, for failure to state a claim. The court held that PC Connection had provided sufficient facts regarding the amount in controversy to satisfy the diversity of citizenship jurisdiction requirements, and therefore denied Price’s motion to dismiss for lack of subject matter jurisdiction. The court denied in part and granted in part Price’s motion to dismiss for failure to state a claim. The court dismissed PC Connection’s conversion claim, and a portion of its breach of fiduciary duties claim, as preempted by the New Hampshire Uniform Trade Secrets Act. The court also dismissed PC Connection’s breach of the implied covenant of good faith and fair dealing claim. The court denied Price’s motion to dismiss PC Connection’s breach of contract claim because, on the factual record properly before the court, it would be premature to determine whether the employment agreement at issue was consistent with New Hampshire law. Judge Paul J. Barbadoro.


ERISA

10/5/15
Gary Hopper v. Aetna Life Ins. Co.
Case No. 14-cv-450-LM, Opinion No. 2015 DNH 191

The plaintiff in this case sued the administrator of his former employer’s long-term disability plan, under the Employee Retirement Income Security Act (“ERISA”), for terminating his benefits. Because the defendant’s decision was well reasoned and supported by substantial evidence, it was not an abuse of discretion, which entitled the defendant to summary judgment. 15 pages. Judge Landya McCafferty.


FOURTH AMENDMENT

10/5/15
Bryan Dixon v. City of Somersworth, et al.
Case No. 14-cv-397-LM, Opinion No. 2015 DNH 190

In this action, the plaintiff sued a police officer for using excessive force, i.e., a taser, to effect his arrest. Given the circumstances of the arrest, which include the officer’s reasonable belief that the plaintiff was about to attempt to evade arrest by jumping fifty feet down into a fast-flowing river, the officer was entitled to qualified immunity from the plaintiff’s Fourth Amendment excessive force claim. 12 pages. Judge Landya McCafferty.


SEC CIVIL PENALTIES

10/1/15
Securities and Exchange Commission v. Smith
Case No. 14-cv-192-PB, Opinion No. 2015 DNH 189

The Securities and Exchange Commission (SEC) brought a securities fraud action against Allen R. Smith for Smith’s role in an advance-fee investment fraud scheme. The court previously granted the SEC’s motion for summary judgment on all of its substantive claims, and its requests for disgorgement and permanent injunctive relief. In this order, the court further granted the SEC’s request for civil monetary relief. Based on Smith’s role in the overall fraud and other considerations, the court ordered Smith to pay a $43,342.88 civil penalty, an amount equal to Smith’s gross pecuniary gain from the scheme. Judge Paul J. Barbadoro.


SOCIAL SECURITY

10/7/15
Kara Lea Maynard v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-512-LM, Opinion No. 2015 DNH 192

In this appeal of a denial of Social Security disability insurance benefits, the case was remanded because the ALJ gave explanations that were not supported by substantial evidence for giving limited weight to the opinions of a treating physician and an examining physician. 29 pages. Judge Landya McCafferty.

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