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

A confidential, independent resource for NH lawyers, judges and law students.

Order with big business buying power.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - April 20, 2016


US District Court Decision Listing

March 2016

* Published

ADA; EMPLOYMENT

3/1/16
Gage v. Rymes Heating Oils, Inc.
Case No. 14-cv-480-PB, Opinion No. 2016 DNH 038

Mariah J. Gage sued her former employer, Rymes Heating Oils, Inc., alleging that Rymes violated both the Americans with Disabilities Act (“ADA”) and New Hampshire’s Law Against Discrimination by demoting and firing her on the basis of her disability, an episodic migraine condition. She also claimed that Rymes wrongfully discharged her in violation of New Hampshire law. Rymes responded with a motion for summary judgment. The court denied Rymes’ motion with respect to plaintiff’s ADA discrimination claim, concluding that she had proffered sufficient evidence that her chronic migraine condition qualified as a “disability” within the meaning of the ADA, and that Rymes’ proffered reason for firing her was a pretext for disability discrimination. The court granted Rymes’ motion, however, with respect to her ADA accommodation claim, because plaintiff never requested an accommodation, and presented insufficient evidence that defendant knew of her need for such an accommodation. Finally, the court dismissed Gage’s wrongful discharge claim because she failed to show that she was fired for doing, or refusing to do, something that implicates public policy. 32 Pages. Judge Paul J. Barbadoro.


CIVIL MOTIONS, MISCELLANEOUS

3/10/16
Crown Castle Towers v. Town of Bedford, et al.
Case No. 15-cv-507-PB, Opinion No. 2016 DNH 051

Crown Castle Towers 06-2 LLC applied for a special exception and variance from the Town of Bedford’s Zoning Board of Adjustment, so that the company could build a telecommunications facility in Bedford, New Hampshire. When the Board denied Crown Castle’s application, the company filed suit against the Town, the Board, and five Board members, alleging that the defendants’ actions violated federal and New Hampshire law. Thereafter, Denise Ricciardi, a Bedford homeowner whose property abuts the site of Crown Castle’s proposed facility, filed a motion to intervene. Crown Castle opposed that motion, arguing that Ricciardi did not have a right to intervene under Fed. R. Civ. P. 24, because the Town could adequately protect her interests. The court rejected this argument, reasoning that there was a genuine potential for a divergence in interests between the Town and Ricciardi, because Crown Castle and the Town might settle their dispute in a way that prejudiced Ricciardi. The court therefore granted the motion to intervene. 7 Pages. Judge Paul J. Barbadoro.


3/24/16
Signs for Jesus et al. v Town of Pembroke et al.
Case No. 15-cv-482-PB, Opinion No. 2016 DNH 059

Signs for Jesus and Hillside Baptist Church applied for a permit to put up an electronic sign that would display religious messages on Pembroke Street in Pembroke, New Hampshire. When their application was denied, they filed this suit against the Town of Pembroke, the Town’s Zoning Board of Adjustment (“ZBA”), and the Town’s Code Enforcement Officer, Everett Hodge, in both his official and individual capacities. Plaintiffs allege that the defendants’ actions violated the United States and New Hampshire constitutions, and federal and state statutes. Defendants filed a partial motion to dismiss, arguing that the court should dismiss all claims against the ZBA, Hodge in his official capacity, and Hodge in his individual capacity. The court denied defendants’ motion with respect to the ZBA, and Hodge in his individual capacity. The court granted defendants’ motion, however, with respect to plaintiffs’ claims against Hodge in his official capacity, because those claims were redundant of the claims against the Town itself. 10 Pages. Judge Paul J. Barbadoro.


CIVIL MOTIONS, RECONSIDERATION

3/2/16
Gallagher, et al. v. Funeral Source One Supply, et al.
Case No. 14-cv-115-PB, Opinion No. 2016 DNH 042

Robert Gallagher and his firm, Instrument Design and Manufacturing Co. (IDM), sued Funeral Source One Supply and Equipment Co., Inc. (“FS1”) and Affordable Funeral Supply, LLC (“AFS”) for (1) patent infringement, (2) trade dress infringement, (3) violations of the New Hampshire Consumer Protection Act; and (4) unjust enrichment. After the court granted defendants’ motion for summary judgment as to all of plaintiffs’ claims, plaintiffs moved for reconsideration on various grounds. The court rejected plaintiffs’ argument that the court misapplied the summary judgment standard by construing evidence in the moving party’s favor. The court denied plaintiffs’ attempt to introduce new evidence and new legal arguments, because they did not explain or justify their failure to present those materials earlier. And, the court rejected plaintiffs’ argument that the court was “confused” regarding the scienter requirement for a New Hampshire Consumer Protection Act claim. The court therefore denied plaintiffs’ motion for reconsideration. 9 Pages. Judge Paul J. Barbadoro.


CIVIL RIGHTS; FIRST AMENDMENT

3/31/16
Reddy, et al. v. Foster, et al.
Case No. 14-cv-299-JL, Opinion No. 2016 DNH 074*

In this civil rights action, the plaintiffs challenged the constitutionality of a state law allowing clinics that provide abortion services in New Hampshire to create “buffer zones” around their entrances. Plaintiffs alleged that the act in question, NH Rev. Stat. Ann. § 132:38, violated their rights to, inter alia, freedom of expression as guaranteed by the First Amendment. The Attorney General moved to dismiss the complaint, arguing that the plaintiffs failed to allege any injury, thus depriving them of standing to bring the suit. Many of the municipal defendants moved for judgment on the pleadings on the same grounds. The court granted the motions. The court first held that the plaintiffs lacked standing to bring a pre-enforcement challenge. In doing so, the court concluded that creation of a buffer zone is a necessary precondition to enforcement of the law. The absence of any such zone negated the imminence of any risk that the law would be enforced against the plaintiffs. Accordingly, any self-censorship by the plaintiffs was not an injury resulting from a threat of enforcement and could not provide a basis for the plaintiffs’ standing. The court also dismissed plaintiffs’ arguments that an allegation in the complaint that the challenged law delegated unbridled discretion to the clinics to create buffer zones sufficed to establish standing outside of the prior restraint context. Finally, the court that the plaintiffs lacked standing to challenge the law as-applied because no buffer zone has been created and the law has not been enforced against them. 36 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS, PRISONERS

3/10/16
Haverstick v. NH State Prison Warden, et al.
Case No. 15-cv-94-PB, Opinion No. 2016 NH 050

Plaintiff, an inmate in the New Hampshire State Prison, alleges that defendants violated his Eighth Amendment rights through their deliberate indifference to his serious medical and dental needs, and that they violated his equal protection rights by refusing to provide him with dentures. The court granted the defendants’ motion for summary judgment as to all of plaintiff’s Eighth Amendment claims, and as to plaintiff’s equal protection claims asserting discrimination based on his nutrition status and his preexisting condition of having no teeth. The court, however, denied defendants’ motion as to plaintiff’s claim that denying him dentures based on the length of his sentence violated his right to equal protection. 21 pages. Judge Paul J. Barbadoro.


CONTRACT

3/15/16
Autoridad de Energia Electrica de Puerto Rico v. Vitol Inc., and Vitol S.A.
Puerto Rico Case No. 09-cv-2242-SJM, Opinion No. 2016 DNH 057

Autoridad de Energia Electrica de Puerto Rico (“PREPA”) brought suit against Vitol Inc. and Vitol S.A. in the Commonwealth Court of First Instance, San Juan Part, seeking, inter alia, a declaratory judgment that certain oil supply contracts it had entered with Vitol Inc. were rescinded by operation of local law. Defendants subsequently removed the case to federal court. PREPA moved for remand based on the contracts’ forum selection clauses, arguing that the clauses vitiated Vitol Inc.’s ability to consent to removal of the action. The court found that the forum selection clauses were enforceable against Vitol, Inc., and waived Vitol Inc.’s ability to consent to a co-defendant’s removal. Accordingly, defendants were unable to satisfy 28 USC § 1441’s unanimity requirement. The case was remanded to the Commonwealth Court of First Instance, San Juan Part, for further proceedings. 31 pages. Judge Steven J. McAuliffe.


CONTRIBUTION/INDEMNIFICATION

3/23/16
Unity School District v. Vaughn Associates, Inc., and Scott Vaughn v. School Administrative Unit #6, Excel Mechanical, Inc., Superior Walls of Hudson Valley, Inc., and Town of Unity
Case No. 15-cv-155-SM, Opinion No. 2016 DNH 062

Unity School District sued Vaughn Associates for breaching two contracts, pursuant to which Vaughn agreed to design and oversee construction of a new elementary school. Vaughn, in turn, brought third-party claims against several entities, including the Town of Unity and School Administrative Unit #6, seeking contribution or, better still, complete indemnification for any damages Vaughn may, in the future, owe to Unity School District. The court granted the third-party defendants’ motions to dismiss, concluding that Vaughn’s complaint failed to state viable claims for either statutory contribution or common law implied indemnification. 19 pages. Judge Steven J. McAuliffe.


EMPLOYMENT

3/22/16
Yin Gui Chen v. C&R Rock, Inc., et al.
Case No. 14-cv-114-AJ, Opinion No. 2016 DNH 060

Plaintiff, formerly a chef at a New Hampshire Chinese restaurant, sued defendants alleging they failed to compensate him for all hours worked and overtime. A bench trial was held in February 2016. In a written order, the court concluded that plaintiff proved by a preponderance of the evidence that Defendants C&R Rock, Inc. and Jin Huang were jointly and severally liable for damages totaling $16,930.76. 23 pages. Magistrate Judge Andrea K. Johnstone.


ERISA

3/2/16
Sullivan v. New York Life Insurance, et al.
Case No. 15-cv-183-JL, Opinion No. 2016 DNH 045

Decedent’s estate filed suit against decedent’s ex-wife, claiming that decedent’s divorce from ex-wife extinguished her beneficiary rights even though she remained as named beneficiary on policy. Insurance company sought interpleader relief. The court granted the defendant’s motion to dismiss, finding that estate’s claim was pre-empted by ERISA. Court allowed plaintiff to seek leave to amend complaint if viable ERISA claim could be stated. 14 pages. Judge Joseph N. Laplante.


FORECLOSURE

3/23/16
Dan S. Murray v. The Bank of New York Mellon, F/K/A The Bank of New York, as Trustee for the Certificate-Holders of CWABS, Inc. Asset-Backed Certificate Series 2004-11
Case No. 15-cv-475-SM, Opinion No. 2016 DNH 064

After defendant foreclosed upon his home, took title (as high bidder at the sale), and obtained a writ of possession, pro se plaintiff filed this action challenging defendant’s title to the property. Specifically, plaintiff alleged that defendant failed to properly record a foreclosure deed in conformance with state law and, therefore, its title was defective. Accordingly, said plaintiff, defendant should be enjoined from evicting him. The court granted defendant’s motion to dismiss, holding that once the foreclosure sale was complete, plaintiff lacked standing to challenge the validity of defendant’s title. 6 pages. Judge Steven J. McAuliffe.


IMMUNITY

3/31/16
Reenstierna v. Currier
Case No. 14-cv-57-JL, Opinion No. 2016 DNH 073

Plaintiff, a real estate appraiser, sued another appraiser based on the latter’s role as an investigator and witness in disciplinary proceedings instituted against the plaintiff by the New Hampshire Real Estate Appraisal Board. The court granted defendant’s motion to dismiss, finding that New Hampshire’s absolute witness immunity doctrine, as set forth in Provencher v. Buzzell-Plourde Assocs., 142 N.H. 848 (1998), applied to defendant’s acceptance of assignment to investigate plaintiff and his participation in the disciplinary proceedings. 14 pages. Judge Joseph N. Laplante.


MEDICAID ACT

3/11/16
New Hampshire Hospital Association v. Burwell
Case No. 15-cv-460-LM, Opinion No. 2016 DNH 053

The plaintiffs brought suit against the Centers for Medicare and Medicaid Services and the Secretary of Health and Human Services, alleging that the defendants set forth certain “policy clarifications” that contract the plain language of the Medicaid Act and violate the Administrative Procedure Act (“APA”). The plaintiffs moved for a preliminary injunction barring the defendants from enforcing the policy clarifications during the pendency of the litigation. In granting the plaintiffs’ motion, the court held that the plaintiffs were likely to show that they have standing to pursue their claims and that the policy clarifications contradict the Medicaid Act and violate the APA. The court further held that the plaintiffs showed that absent a preliminary injunction, irreparable harm is likely, and that the balance of the equities and the public interest weighed in favor of granting the injunction. 52 pages. Judge Landya McCafferty.


NEGLIGENCE

3/8/16
Butler-Tessier v. Nat’l R.R. Passenger Corp.
Case No. 14-cv-306-JL, Opinion No. 2016 DNH 047

In this negligence action, the plaintiff alleged that she was injured after falling from a moving train operated by the National Railroad Passenger Corporation (“Amtrak”). The court denied Amtrak’s motion for summary judgment, concluding that significant questions of material fact -- including the circumstances around the plaintiff’s exit from the moving train -- created triable issues as to the cause of the plaintiff’s injuries. 9 pages. Judge Joseph N. Laplante.


RESPA; TITLE VII; ADA

3/8/16
Mottram v. Wells Fargo Bank
Case No. 15-cv-470-PB, Opinion No. 2016 DNH 046

Darrin M. Mottram, proceeding pro se, sued Wells Fargo Bank, N.A., for claims arising from the bank’s attempts to foreclose on his home. Plaintiff alleged that Wells Fargo (1) discriminated against him because he is disabled, (2) violated the Real Estate Settlement Procedures Act (“RESPA”) by failing to disclose certain information about his loan, (3) breached the covenant of good faith and fair dealing by declining to modify his loan, and (4) negligently and intentionally inflicted emotional distress. Wells Fargo responded with a motion to dismiss, arguing that Mottram’s complaint did not state a viable claim for relief. The court agreed. The court concluded that plaintiff’s complaint did not provide sufficient facts to make out a viable claim pursuant to Title VII, Americans with Disabilities, Fair Housing Act claim, or RESPA. The court determined that plaintiff’s breach of the implied covenant of good faith and fair dealing claim failed because he did not allege essential elements of that cause of action. And, the court found that plaintiff did not state a claim for negligent or intentional infliction emotional distress because he did not allege that (1) he suffered physical manifestations of his distress, or (2) defendant engaged in “extreme and outrageous” conduct. Accordingly, the court granted defendants’ motion to dismiss. 13 Pages. Judge Paul J. Barbadoro.


PERSONAL JURISDICTION

3/22/16
P.C. Hoag & Co., Inc. v. Man Lift Mfg., Co., et al.
Case No. 15-cv-498-AJ, Opinion No. 2016 DNH 061

Plaintiff, a New Hampshire corporation, brought suit against defendants asserting various claims stemming from plaintiff’s purchase on an alleged defunct aerial lift. One defendant, a Nebraska corporation, moved to dismiss the claims advanced against it for lack of personal jurisdiction. The court denied defendant’s motion. The court found that plaintiff met its burden to show that it claims related to defendant’s contacts with New Hampshire and that defendant “purposefully availed” itself to the state. The court further found that the First Circuit’s “gestalt factors” favored jurisdiction in New Hampshire. 18 pages. Magistrate Judge Andrea K. Johnstone.


3/2/16
R&R Auction v. Michael Johnson
Case No. 15-cv-199-PB, Opinion No. 2016 DNH 040

R&R Auction, a New Hampshire-based auction house, sued Michael Johnson, a California resident, alleging that Johnson acted improperly in prosecuting a lawsuit he had filed against R&R Auction in California state court. R&R Auction’s complaint included a raft of federal and state-law claims. Johnson responded with a motion to dismiss for lack of personal jurisdiction. The court determined that, with respect to at least some of its claims, R&R Auction had proffered sufficient evidence to satisfy the relatedness and purposeful availment requirements of the specific jurisdiction analysis. The court further concluded, however, that, based on the totality of the circumstances, it would be unreasonable to exercise personal jurisdiction over defendant. Accordingly, the court granted defendant’s motion to dismiss. 28 Pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY

3/9/16
McFall v. SSA
Case No. 15-cv-160-PB, Opinion No. 2016 DNH 049

Claimant appealed the Social Security Administrator’s denial of her application for disability insurance benefits. She argued that the Administrative Law Judge (“ALJ”) erred in finding that she proffered insufficient evidence that she suffered from a severe impairment before her date last insured, or through the date of the ALJ’s decision. The court decided that substantial evidence supported the ALJ’s decision, where the claimant produced no evidence predating her date last insured, virtually no medical evidence for the fifteen year period after her date last insured, and no opinion or other evidence regarding the severity of her impairments before her date last insured. The court therefore concluded that the claimant had not produced the medical signs and laboratory findings needed to support her claim, and affirmed the ALJ’s decision. 13 Pages. Judge Paul J. Barbadoro.


03/11/16
Differ v. SSA
Case No. 15-cv-029-JL, Opinion No. 2016 DNH 054

On appeal from the Social Security Administration’s denial of the claimant’s application for disability benefits, the court reversed the decision of the Administrative Law Judge (“ALJ”). The court held that the ALJ erred in weighing the expert evidence. Specifically, the ALJ erred by giving “significant weight” to the opinion of a non-examining state agency consultant, who did not review any of Differ’s mental health medical records, after discounting the opinion of Differ’s treating psychologist. 10 pages. Judge Joseph N. Laplante.


3/24/16
James Kalloch v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-520-SM, Opinion No. 2016 DNH 065

Claimant moved to reverse or vacate the Acting Commissioner=s decision denying his applications for Disability Insurance Benefits and Supplemental Security Income. Among other things, claimant asserted that the ALJ improperly concluded, at step two of the sequential analysis, that his migraine headaches were not a severe impairment. The court agreed, noting that the analysis at step two is intended to screen out only groundless claims and petitioner’s migraines were sufficiently severe to exceed that modest threshold. 19 pages. Judge Steven J. McAuliffe.


3/30/16
Daniel Buccellato v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-335-SM, Opinion No. 2016 DNH 066

Claimant moved to reverse the Acting Commissioner’s decision denying his application for Disability Insurance Benefits and Supplemental Security Income. Claimant argued, in part, that the ALJ had failed to properly assess his credibility. The court found that the ALJ had properly assessed claimant’s credibility with respect to his allegations concerning his knee impairment, but had not assessed the credibility of claimant’s statements regarding his depression and anxiety symptoms. The court remanded the case for proper consideration of these symptoms. 18 pages. Judge Steven J. McAuliffe.


3/30/16
Henry Nelson v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-37-SM, Opinion No. 2016 DNH 067

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his application for Disability Insurance Benefits and Supplemental Security Income. Claimant argued that the ALJ had failed to credit the views of his treating physician, and instead improperly relied on the DDS non-examining file reviewer. The court disagreed, finding that the record adequately supported the ALJ’s conclusion that the claimant’s treating physician’s opinion was entitled to little weight. 23 pages. Judge Steven J. McAuliffe.


TORTS

3/4/16
Rolling Green at Whip-Poor-Will Condominium Townhouse Unit Owners Association, et al v. Bank of America, N.A., et al
Case No. 15-cv-391-PB, Opinion No. 2016 DNH 044

A condominium association sued Bank of America and Safeguard Properties, a property management company, after the pipes burst in a vacant condo unit owned by Bank of America. The association brought claims of negligence, trespass, and conversion. The bank responded with a motion to dismiss for failure to state a claim, arguing that the complaint failed to establish that Safeguard acted as the bank’s agent when it turned on the water in the vacant unit without also turning on the heat. The court found that the complaint alleged sufficient facts to reasonably infer that an agency relationship existed between the entities, and denied the bank’s motion to dismiss. 8 pages. Judge Paul J. Barbadoro.


FEDERAL STATUTES (42 U.S.C. § 1981); STATUTE OF LIMITATIONS

3/30/16
Maria Dalomba v. Edwin Simonsen, et al
Case No. 15-cv-272-PB, Opinion No. 2016 DNH 071

Maria Dalomba brought suit against Edwin Simonsen, Catherine Kierstead, and Hidden Valley RV Park of Derry, NH, under 42 U.S.C. § 1981. Dalomba, an African-American, alleged that the defendants discriminated against her and her family on the basis of race during their time as seasonal campers at the park, from 2007-2011. Dalomba brought two counts, one for harassment based on a hostile environment and one for retaliation. The defendants countered with a motion to dismiss for failure to state a claim, arguing that a) the suit was barred by the four-year statute of limitations, and b) Dalomba had not alleged sufficient facts to prove that Simonsen or Kierstead as individual defendants had shown the racial animus required to state a claim under section 1981. The court denied the motion to dismiss in part and granted it in part, holding that certain events prior to July 11, 2011 could be considered under the hostile environment claim, but not under the retaliation claim. 28 pages. Judge Paul J. Barbadoro.


FORECLOSURE

3/23/16
Dan S. Murray v. The Bank of New York Mellon, F/K/A The Bank of New York, as Trustee for the Certificate-Holders of CWABS, Inc. Asset-Backed Certificate Series 2004-11
Case No. 15-cv-475-SM, Opinion No. 2016 DNH 064

After defendant foreclosed upon his home, took title (as high bidder at the sale), and obtained a writ of possession, pro se plaintiff filed this action challenging defendant’s title to the property. Specifically, plaintiff alleged that defendant failed to properly record a foreclosure deed in conformance with state law and, therefore, its title was defective. Accordingly, said plaintiff, defendant should be enjoined from evicting him. The court granted defendant’s motion to dismiss, holding that once the foreclosure sale was complete, plaintiff lacked standing to challenge the validity of defendant’s title. 6 pages. Judge Steven J. McAuliffe.


IMMUNITY

3/31/16
Reenstierna v. Currier
Case No. 14-cv-57-JL, Opinion No. 2016 DNH 073

Plaintiff, a real estate appraiser, sued another appraiser based on the latter’s role as an investigator and witness in disciplinary proceedings instituted against the plaintiff by the New Hampshire Real Estate Appraisal Board. The court granted defendant’s motion to dismiss, finding that New Hampshire’s absolute witness immunity doctrine, as set forth in Provencher v. Buzzell-Plourde Assocs., 142 N.H. 848 (1998), applied to defendant’s acceptance of assignment to investigate plaintiff and his participation in the disciplinary proceedings. 14 pages. Judge Joseph N. Laplante.


MEDICAID ACT

3/11/16
New Hampshire Hospital Association v. Burwell
Case No. 15-cv-460-LM, Opinion No. 2016 DNH 053

The plaintiffs brought suit against the Centers for Medicare and Medicaid Services and the Secretary of Health and Human Services, alleging that the defendants set forth certain “policy clarifications” that contract the plain language of the Medicaid Act and violate the Administrative Procedure Act (“APA”). The plaintiffs moved for a preliminary injunction barring the defendants from enforcing the policy clarifications during the pendency of the litigation. In granting the plaintiffs’ motion, the court held that the plaintiffs were likely to show that they have standing to pursue their claims and that the policy clarifications contradict the Medicaid Act and violate the APA. The court further held that the plaintiffs showed that absent a preliminary injunction, irreparable harm is likely, and that the balance of the equities and the public interest weighed in favor of granting the injunction. 52 pages. Judge Landya McCafferty.


NEGLIGENCE

3/8/16
Butler-Tessier v. Nat’l R.R. Passenger Corp.
Case No. 14-cv-306-JL, Opinion No. 2016 DNH 047

In this negligence action, the plaintiff alleged that she was injured after falling from a moving train operated by the National Railroad Passenger Corporation (“Amtrak”). The court denied Amtrak’s motion for summary judgment, concluding that significant questions of material fact -- including the circumstances around the plaintiff’s exit from the moving train -- created triable issues as to the cause of the plaintiff’s injuries. 9 pages. Judge Joseph N. Laplante.


RESPA; TITLE VII; ADA

3/8/16
Mottram v. Wells Fargo Bank
Case No. 15-cv-470-PB, Opinion No. 2016 DNH 046

Darrin M. Mottram, proceeding pro se, sued Wells Fargo Bank, N.A., for claims arising from the bank’s attempts to foreclose on his home. Plaintiff alleged that Wells Fargo (1) discriminated against him because he is disabled, (2) violated the Real Estate Settlement Procedures Act (“RESPA”) by failing to disclose certain information about his loan, (3) breached the covenant of good faith and fair dealing by declining to modify his loan, and (4) negligently and intentionally inflicted emotional distress. Wells Fargo responded with a motion to dismiss, arguing that Mottram’s complaint did not state a viable claim for relief. The court agreed. The court concluded that plaintiff’s complaint did not provide sufficient facts to make out a viable claim pursuant to Title VII, Americans with Disabilities, Fair Housing Act claim, or RESPA. The court determined that plaintiff’s breach of the implied covenant of good faith and fair dealing claim failed because he did not allege essential elements of that cause of action. And, the court found that plaintiff did not state a claim for negligent or intentional infliction emotional distress because he did not allege that (1) he suffered physical manifestations of his distress, or (2) defendant engaged in “extreme and outrageous” conduct. Accordingly, the court granted defendants’ motion to dismiss. 13 Pages. Judge Paul J. Barbadoro.


PERSONAL JURISDICTION

3/22/16
P.C. Hoag & Co., Inc. v. Man Lift Mfg., Co., et al.
Case No. 15-cv-498-AJ, Opinion No. 2016 DNH 061

Plaintiff, a New Hampshire corporation, brought suit against defendants asserting various claims stemming from plaintiff’s purchase on an alleged defunct aerial lift. One defendant, a Nebraska corporation, moved to dismiss the claims advanced against it for lack of personal jurisdiction. The court denied defendant’s motion. The court found that plaintiff met its burden to show that it claims related to defendant’s contacts with New Hampshire and that defendant “purposefully availed” itself to the state. The court further found that the First Circuit’s “gestalt factors” favored jurisdiction in New Hampshire. 18 pages. Magistrate Judge Andrea K. Johnstone.


3/2/16
R&R Auction v. Michael Johnson
Case No. 15-cv-199-PB, Opinion No. 2016 DNH 040

R&R Auction, a New Hampshire-based auction house, sued Michael Johnson, a California resident, alleging that Johnson acted improperly in prosecuting a lawsuit he had filed against R&R Auction in California state court. R&R Auction’s complaint included a raft of federal and state-law claims. Johnson responded with a motion to dismiss for lack of personal jurisdiction. The court determined that, with respect to at least some of its claims, R&R Auction had proffered sufficient evidence to satisfy the relatedness and purposeful availment requirements of the specific jurisdiction analysis. The court further concluded, however, that, based on the totality of the circumstances, it would be unreasonable to exercise personal jurisdiction over defendant. Accordingly, the court granted defendant’s motion to dismiss. 28 Pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY

3/9/16
McFall v. SSA
Case No. 15-cv-160-PB, Opinion No. 2016 DNH 049

Claimant appealed the Social Security Administrator’s denial of her application for disability insurance benefits. She argued that the Administrative Law Judge (“ALJ”) erred in finding that she proffered insufficient evidence that she suffered from a severe impairment before her date last insured, or through the date of the ALJ’s decision. The court decided that substantial evidence supported the ALJ’s decision, where the claimant produced no evidence predating her date last insured, virtually no medical evidence for the fifteen year period after her date last insured, and no opinion or other evidence regarding the severity of her impairments before her date last insured. The court therefore concluded that the claimant had not produced the medical signs and laboratory findings needed to support her claim, and affirmed the ALJ’s decision. 13 Pages. Judge Paul J. Barbadoro.


03/11/16
Differ v. SSA
Case No. 15-cv-029-JL, Opinion No. 2016 DNH 054

On appeal from the Social Security Administration’s denial of the claimant’s application for disability benefits, the court reversed the decision of the Administrative Law Judge (“ALJ”). The court held that the ALJ erred in weighing the expert evidence. Specifically, the ALJ erred by giving “significant weight” to the opinion of a non-examining state agency consultant, who did not review any of Differ’s mental health medical records, after discounting the opinion of Differ’s treating psychologist. 10 pages. Judge Joseph N. Laplante.


3/24/16
James Kalloch v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-520-SM, Opinion No. 2016 DNH 065

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his applications for Disability Insurance Benefits and Supplemental Security Income. Among other things, claimant asserted that the ALJ improperly concluded, at step two of the sequential analysis, that his migraine headaches were not a severe impairment. The court agreed, noting that the analysis at step two is intended to screen out only groundless claims and petitioner’s migraines were sufficiently severe to exceed that modest threshold. 19 pages. Judge Steven J. McAuliffe.


3/30/16
Daniel Buccellato v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-335-SM, Opinion No. 2016 DNH 066

Claimant moved to reverse the Acting Commissioner’s decision denying his application for Disability Insurance Benefits and Supplemental Security Income. Claimant argued, in part, that the ALJ had failed to properly assess his credibility. The court found that the ALJ had properly assessed claimant’s credibility with respect to his allegations concerning his knee impairment, but had not assessed the credibility of claimant’s statements regarding his depression and anxiety symptoms. The court remanded the case for proper consideration of these symptoms. 18 pages. Judge Steven J. McAuliffe.

3/30/16
Henry Nelson v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-37-SM, Opinion No. 2016 DNH 067

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his application for Disability Insurance Benefits and Supplemental Security Income. Claimant argued that the ALJ had failed to credit the views of his treating physician, and instead improperly relied on the DDS non-examining file reviewer. The court disagreed, finding that the record adequately supported the ALJ’s conclusion that the claimant’s treating physician’s opinion was entitled to little weight. 23 pages. Judge Steven J. McAuliffe.

TORTS

3/4/16
Rolling Green at Whip-Poor-Will Condominium Townhouse Unit Owners Association, et al v. Bank of America, N.A., et al
Case No. 15-cv-391-PB, Opinion No. 2016 DNH 044

A condominium association sued Bank of America and Safeguard Properties, a property management company, after the pipes burst in a vacant condo unit owned by Bank of America. The association brought claims of negligence, trespass, and conversion. The bank responded with a motion to dismiss for failure to state a claim, arguing that the complaint failed to establish that Safeguard acted as the bank’s agent when it turned on the water in the vacant unit without also turning on the heat. The court found that the complaint alleged sufficient facts to reasonably infer that an agency relationship existed between the entities, and denied the bank’s motion to dismiss. 8 pages. Judge Paul J. Barbadoro.

FEDERAL STATUTES (42 U.S.C. § 1981); STATUTE OF LIMITATIONS

3/30/16
Maria Dalomba v. Edwin Simonsen, et al
Case No. 15-cv-272-PB, Opinion No. 2016 DNH 071

Maria Dalomba brought suit against Edwin Simonsen, Catherine Kierstead, and Hidden Valley RV Park of Derry, NH, under 42 U.S.C. § 1981. Dalomba, an African-American, alleged that the defendants discriminated against her and her family on the basis of race during their time as seasonal campers at the park, from 2007-2011. Dalomba brought two counts, one for harassment based on a hostile environment and one for retaliation. The defendants countered with a motion to dismiss for failure to state a claim, arguing that a) the suit was barred by the four-year statute of limitations, and b) Dalomba had not alleged sufficient facts to prove that Simonsen or Kierstead as individual defendants had shown the racial animus required to state a claim under section 1981. The court denied the motion to dismiss in part and granted it in part, holding that certain events prior to July 11, 2011 could be considered under the hostile environment claim, but not under the retaliation claim. 28 pages. Judge Paul J. Barbadoro.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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