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Bar News - June 15, 2016


US District Court Decision Listing

May 2016

* Published

EMPLOYMENT LAW

5/26/16
Joseph Kertanis v. Georgia-Pacific Gypsum
Case No. 14-cv-343-JL, Opinion No. 2016 DNH 082

Plaintiff sued former employer, claiming wrongful termination and breach of the covenant of good faith and fair dealing. Court granted defendant’s motion for summary judgment, finding that plaintiff failed to articulate acts he performed that public policy would encourage. While public policy would encourage “counseling” a co-worker about workplace performance issues, doing so in an abusive way would not be countenanced. 18 pages. Judge Joseph N. Laplante.


EVIDENCE

5/6/16
Rockwood Select Asset Fund XI, (6)-1, LLC v. Devine, Millimet & Branch, PA, et al.
Case No. 14-cv-303-JL, Opinion No. 2016 DNH 191*

The parties in this action arising from certain alleged misrepresentations, made by an attorney during the course of negotiating a loan on her client’s behalf, moved in limine to admit or exclude evidence from the jury trial. Deciding the motions, the court, among other things: (1) granted the defendants’ motion to exclude a supplemental, rebuttal expert report that was disclosed well after the disclosure deadline and relied on information that should have been in the plaintiff’s possession prior to that deadline; (2) denied the plaintiff’s motion to exclude, under Daubert, the opinion and testimony of one of the defendants’ experts, concluding that, while open to a vigorous cross-examination, the opinion in question satisfied Federal Rule of Evidence 702; (3) ruled that the plaintiff would not be allowed to introduce evidence of late-disclosed damages or damages based in an unpled contract theory of liability, but may introduce evidence of its actual pecuniary loss, consequential damages, and prejudgment interest; (4) declined, at the pretrial stage, to exclude as irrelevant or as inadmissible absent contextualizing expert testimony, evidence and arguments concerning the defendants’ conduct following the closing of the loan at issue in the litigation; (5) declined, in the absence of any arguable prejudice, to exclude certified copies of documents produced during discovery, though the certified copies were obtained after the discovery period; (6) rejected the defendants’ argument that evidence concerning the defendants’ representation of the same client in an earlier litigation lacked relevance to this action because the defendants admitted knowledge of that litigation; (7) denied the defendants’ motion to preclude, in advance of trial, the plaintiffs from calling certain witnesses associated with the defendant law firm to testify; (8) denied, pursuant to Federal Rule of Evidence 608(B), the plaintiff’s motions to exclude inquiry into certain instances of false statements or misrepresentations by the plaintiff’s principal and its agent, made during investigations or legal actions, that were probative of their character for truthfulness, but granted plaintiff’s motions to exclude inquiry into the principal’s participation in a “pump and dump” stock sale and allegations of untruthfulness made against the agent in various lawsuits, but not proven therein. 43 pages. Judge Joseph N. Laplante.


INSURANCE

5/9/16
Randall Hoover, et al. v. Harvard Pilgrim Health
Case No. 14-cv-367-JL, Opinion No. 2016 DNH 192

In this action to recover benefits under a health care coverage plan, the defendants moved to dismiss the complaint as timebarred by the terms of that plan. The plaintiffs filed their complaint more than two years after the insurance company denied their appeal of their denial of benefits, but argued that the limitations period did not begin to run until after they exhausted their external appeals as well. The court granted the defendants’ motion. Drawing on law developed in the ERISA context, and noting that the plaintiffs had not pled their pursuit of an external appeal, the court concluded that the limitations period began to run after the conclusion of the internal appeal and that plaintiff’s suit was, therefore, timebarred. 12 pages. Judge Joseph N. Laplante.


RECONSIDERATION; PERSONAL JURISDICTION

5/23/16
R&R Auction v. Michael Johnson
Case No. 15-cv-199-PB, Opinion No. 2016 DNH 195

In 2015, R&R Auction, a New Hampshire company, sued Michael Johnson, a California resident, in this court. R&R Auction brought a raft of federal and state-law claims, alleging that Johnson acted improperly in prosecuting his own lawsuit against R&R Auction in California state court. Johnson responded with a motion to dismiss for lack of personal jurisdiction, which the court previously granted. R&R Auction then filed a motion for reconsideration, relying largely upon evidence that the company presented, for the first time, in its motion for reconsideration. The court rejected R&R Auction’s arguments, concluding that none of the newly submitted evidence affected the court’s conclusion that exercising jurisdiction over Johnson would be unreasonable. R&R Auction’s other contentions, which re-raised some arguments that the company presented previously, and others that it could and should have raised earlier, were similarly unpersuasive. The court therefore denied R&R Auction’s motion for reconsideration. 10 Pages. Judge Paul J. Barbadoro.


REMOVAL

5/12/16
Suriana Nordin v. PB&J Resorts, et al.
Case No. 15-cv-509-JL, Opinion No. 2016 DNH 193

Invoking the forum defendant rule, the plaintiff moved the court to remand this negligence action to Hillsborough County Superior Court on the basis that the defendants improperly removed it to federal court. The court granted the motion, concluding that the case was improperly removed under 28 U.S.C. § 1441(b)(2) because at least one member of defendant PB&J Resorts, LLC, was a citizen of New Hampshire and that PB&J Resorts, LLC, was not improperly joined as a defendant. The court also denied the defendants’ motion to amend their notice of removal as futile. 12 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY

5/2/16
Bruce Carleton v. Colvin
Case No. 15-cv-259-PB, Opinion No. 2016 DNH 087

Bruce Carleton challenged the Social Security Administration’s denial of his disability income benefits. He argued, among other things, that the Administrative Law Judge violated SSR 8320 when he failed to consult a medical advisor to determine the onset date of Carleton’s alleged disability, degenerative disc disease. The court agreed, citing a long line of cases from this court holding that an ALJ ordinarily must consult a medical advisor to determine a claimant’s alleged onset date when the ALJ makes no finding of present disability. As a result, the case was remanded to the ALJ for further proceedings. 10 pages. Judge Paul J. Barbadoro.

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