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Bar News - March 16, 2016


US District Court Decision Listing

January 2016 - February 2016

* Published

BANKRUPTCY APPEAL

2/10/16
Timothy Bates and Cathy Bates v. CitiMortgage, Inc., s/b/m to ABN AMRO Mortgage Group, Inc. and Federal Home Loan Mortgage Corporation
Case No. 15-cv-167-SM, Opinion No. 2016 DNH 026

Plaintiffs filed an adversary proceeding in bankruptcy court, alleging that defendants violated the discharge injunction by coercing them to pay a discharged debt. The bankruptcy ruled in defendants’ favor on all but one of plaintiffs’ claims, and awarded plaintiffs a modest sum in punitive damages and attorney’s fees. Plaintiffs appealed. On appeal, the district court held that the bankruptcy court did not abuse its discretion and affirmed all challenged aspects of the bankruptcy court’s ruling. 15 pages. Judge Steven J. McAuliffe.


CIVIL RIGHTS

2/4/16
Christopher Kean v. City of Manchester; Manchester Police Department; Chief David J. Mara; and Officer Kelly L. McKenney
Case No. 14-cv-428-SM, Opinion No. 2016 DNH 022

Plaintiff, wearing an official (but discontinued) Manchester Police Department jacket with a current Manchester Police Department patch affixed to the left shoulder, was arrested, charged with, and subsequently acquitted of impersonating a police officer. He then sued the arresting officer, the Manchester Police Department, the Chief of Police, and the City of Manchester, alleging violations of his First and Fourth Amendment rights and advancing various state common law tort claims. The court held that: (1) the arresting officer had probable cause to arrest the plaintiff, and therefore did not violate his Fourth Amendment rights; and (2) the arresting officer did not violate the plaintiff’s First Amendment rights. Moreover, even if the arresting officer had violated plaintiff’s constitutional rights, she would be entitled to the protections afforded by qualified immunity. Finally, the court held that, because the arresting officer had not violated the plaintiff’s constitutional rights, the City of Manchester could not be liable for having maintained an allegedly unconstitutional policy regarding officer training. Having concluded that defendant were entitled to judgment as a matter of law on all plaintiff’s federal claims, the court declined supplemental jurisdiction over plaintiff’s remaining state law claims. 28 pages. Judge Steven J. McAuliffe.


EMPLOYMENT

1/5/16
Jennifer Posteraro v. Citizens Financial
Case No. 13-cv-416-JL, Opinion No. 2016 DNH 003*

Both sides in a Title VII retaliation claim filed motions in limine. The court ruled as followed: 1) granted defendant’s motion to partially exclude certain expert medical testimony; 2) granted defendant’s motions to exclude lost wages evidence and damages evidence due to after-acquired evidence of misconduct claims that would have yielded lost wages were previously dismissed; 3) denied defendant’s motion to exclude evidence derived from plaintiff’s manager’s personnel file because file could contain evidence of motive to retaliate; 4) granted motion to exclude evidence of claims brought by a different employee because those claims did not bear on plaintiff’s retaliation claim; 5) granted plaintiff’s motion to exclude evidence of other litigation. 8 pages. Chief Judge Joseph N. Laplante.


02/25/16
Mary E. Hirth v. Wal-Mart Stores East, L.P.
Case No. 15-cv—400-PB, Opinion No. 2016 DNH 037

Plaintiff sued her former employer, Wal-Mart Stores East, alleging that Wal-Mart discriminated against her on the basis of her gender. Wal-Mart moved to dismiss several of plaintiff’s counts – her 42 U.S.C. § 1983 claims, 42 U.S.C. § 1981 claim, and state-law wrongful discharge claim – arguing that these claims did not state viable claims for relief. The court dismissed plaintiff’s Section 1983 claim because she failed to allege that Wal-Mart had acted under color of state law. It dismissed plaintiff’s Section 1981 claim because plaintiff did not assert that Wal-Mart discriminated against her on the basis of race, an essential element of a Section 1981 claim. It finally dismissed the wrongful discharge claim because plaintiff did not allege that she was fired for doing something that public policy would support, or for refusing to do something that public policy would condemn. 10 Pages. Judge Paul J. Barbadoro.


NEGLIGENCE

2/11/16
Jennifer Lizzol, Michael Lizzol, and T.G. v. Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch
Case No. 15-cv-100-SM, Opinion No. 2016 DNH 027

Plaintiffs, who were injured in a snowmobiling accident, brought suit against, among others, the resort through which they arranged snowmobile lessons and a guided tour. In the count at issue, plaintiffs argued the resort could be held liable under respondeat superior for the negligence of its independent contractor because the independent contractor was engaged in an inherently dangerous activity. The court disagreed, concluding that providing snowmobiling lessons and guided tours did not fall within New Hampshire’s definition of an inherently dangerous activity. Motion to dismiss respondeat superior claim granted. 8 pages. Judge Steven J. McAuliffe.


PATENT LAW

2/23/16
SignalQuest v. Chou, et al.
Case No. 11-cv-392-JL, Opinion No. 2016 DNH 035

The defendants and counter-claimants in this patent infringement action moved for summary judgment that defendants did not infringe the plaintiff’s patents because they did not sell the accused product or offer the accused product for sale within the United States, and that those patents were invalid in light of amendments made during reexamination proceedings. The court denied the defendants’ motion. As to infringement, the court held that the plaintiff had raised a question of material fact as to whether certain quotations issued by the defendants constituted offers to sell the accused product within the United States. The court also concluded that the defendants were not entitled to summary judgment on their intervening rights defense because certain of the reissued claims were identical in scope to the original patent claims. Finally, the court rejected the defendants’ attempt to argue the invalidity of a reissued patent through prosecution history estoppel. 20 pages. Judge Joseph N. Laplante.


PERSONAL JURISDICTION; VENUE

2/26/16
RT Consulting, LLC v. Kentucky Bankers Association
Case No. 15-cv-132-PB, Opinion No. 2016 DNH 036

RT Consulting, a New Hampshire consulting firm, sued the Kentucky Bankers Association (“KBA”), a trade group based in Louisville, Kentucky, for damages stemming from an alleged breach of contract. RT Consulting brought five claims relating to the alleged breach, and KBA responded with a motion to dismiss for lack of personal jurisdiction, failure to state a claim, and, in the alternative, a motion to transfer venue to Kentucky. KBA argued primarily that RT Consulting had contracted not with KBA, but with a similarly-named third-party trust, and therefore the court should dismiss the claims against KBA. The court disagreed, finding that RT Consulting had plead sufficient facts to demonstrate that KBA had been a party to a mutual contract between the parties. As such, the contract’s forum selection clause requiring all lawsuits to be brought in New Hampshire controlled, and KBA’s motions were denied. 16 pages. Judge Paul J. Barbadoro.


PRISONER, CIVIL RIGHTS

1/20/16
Christopher Polansky v. Anne Marie McCoole
Case No. 13-cv-458-JL, Opinion No. 2016 DNH 012

The defendant in this civil rights action, a registered nurse employed by the New Hampshire Department of Corrections, moved for summary judgment that the plaintiff, an inmate, failed to exhaust his administrative remedies under the Department of Corrections’ formal grievance process before seeking to recover under 42 U.S.C. § 1983, as required by the Prison Litigation Reform Act. Finding that the record lacked any indication that the plaintiff had appealed the issues that formed the basis of his complaint to the third level of the grievance process, the court granted the defendant’s motion. 19 pages. Judge Joseph N. Laplante.


RULE 16, GOOD CAUSE

2/8/16
Rockwood Select v. Devine, Millimet & Branch, et al.
Case No. 14-cv-303-JL, Opinion No. 2016 DNH 024

The plaintiff moved to amend its complaint, well after the deadline set by the court’s scheduling order, to add a civil claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1965(d). The court denied the motion. The court held that plaintiff had not demonstrated good cause to amend the complaint in the face of (1) the potential prejudice to the defendants of such a change in the nature of the litigation at so late a point in the litigation, and (2) the fact that the plaintiff knew or should have known about most, if not all, of the predicate acts underpinning its proposed RICO claim at the outset of the litigation. 16 pages. Judge Joseph N. Laplante.


SECURITIES; CLASS ACTION

2/17/16
Richard Medoff, et al. v. CVS Caremark
Case No. 09-cv-554-JNL (Rhode Island), Opinion No. 2016 DNH 029

The parties to this proposed securities class action reached a mutually-agreeable resolution and sought the court’s approval. Concluding that the requirements of Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(g) were satisfied, the court certified the proposed class for purposes of the settlement and appointed class counsel. The court held a settlement approval hearing as provided for by Federal Rule of Civil Procedure 23(e)(2) and found that the proposed settlement was fair, reasonable, and adequate as required by that Rule. The court also approved the plan of allocation as fair, reasonable, and adequate, and concluded that the notice of the settlement provided to members of the class satisfied the requirements of due process. Finally, the court granted lead counsel’s motion for attorneys’ fees and expenses after finding them to be reasonable in light of the facts of the case and counsel’s work done on the class’s behalf. 29 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY

1/26/16
Jason Hudon v. Social Security Administration
Case No. 14-cv-569-JL, Opinion No. 2016 DNH 019

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”). The ALJ did not err in his assessment of the claimant’s physical RFC despite giving “little weight” to the opinion of the claimant’s treating physician because the ALJ permissibly found that opinion inconsistent with that physician’s own treatment notes. The court also held that the ALJ did not err in assessing the claimant’s subjective complaints of pain and his ability to work. 13 pages. Judge Joseph N. Laplante.


2/16/16
Kathleen Chambers v. Social Security Administration
Case No. 15-cv-150-JL, Opinion No. 2016 DNH 028

Claimant sought Social Security disability benefits based on diabetes, depression, anxiety, and left shoulder capsulitis. 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 several arguments in support of reversal: 1) that the ALJ failed to give proper weight to various medical opinions, including that of her long-time treating physician; 2) that the ALJ improperly disregarded a statement submitted by a former employer; 3) that the ALJ erred in concluding that the severity of her symptoms was not fully substantiated; 4) that the ALJ erred in constructing an RFC that was not supported by medical evidence; and 5) that the ALJ improperly relied on an incomplete hypothetical posed to the vocational expert. The court reversed the ALJ’s ruling, finding that the ALJ improperly weighed the opinion of the claimant’s treating physician, improperly relied on the opinion of a single decision-maker, failed to consider information provided by her last employer, and mischaracterized hearing testimony. 13 pages. Chief Judge Joseph N. Laplante.


STATE § 2254 HABEAS

2/16/16
Gregory Schillinger v. NH State Prison, Warden
Case No. 12-cv-423-JL, Oral order issued from the bench - no written opinion issued.

State § 2254 habeas petition dismissed based on Warden’s summary judgment motion where petitioner failed to demonstrate ineffective assistance of trial counsel in child sexual assault prosecution, and failed to demonstrate constitutional error in trial court’s admission of videotaped statement of child victim, or its denial of motion to dismiss based on sufficiency of the evidence. Oral order issued from the bench. No written opinion issued. Judge Joseph N. Laplante.

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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