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Bar News - August 17, 2016


US District Court Decision Listing

July 2016

* Published

ADMINISTRATIVE LAW

7/29/16/16
Goethel v. Pritzker
Case No. 15-cv-497-JL, Opinion No. 2016 DNH 127

Plaintiffs, a commercial fisherman and a commercial fishing sector, sued the Department of Commerce, seeking to overturn an administrative rule under which the fishing industry, as opposed to the government, would have to pay the cost of at-sea monitors who collect certain fishing-related data to ensure compliance with the Magnuson-Stevens Act, 16 U.S.C. §§ 1801 et seq. The plaintiffs argued that the requirement was illegal for several reasons, including that it was not authorized by the Act and that it was unconstitutional. On cross-motions for summary judgment, the court held in favor of the government and against the plaintiffs. In the first instance, the court found that much of plaintiffs’ lawsuit was barred by the applicable statute of limitations. Even if timely, however, the court found that the funding requirement was authorized by the Act, did not violate the Fourth or Tenth Amendments to the United States Constitution, the Commerce Clause, the Appointments Clause, the Anti-Deficiency Act, the Miscellaneous Receipts Act, the Regulatory Flexibility Act or the National Environmental Policy Act. 31 pages. Judge Joseph N. Laplante.


CIVIL PROCEDURE - REMAND, TIMELINESS, SERVICE OF PROCESS

7/1/16
Spinney v. Lakeview Neurorehabilitation Center
Case No. 16-cv-2-JL. No written opinion. Oral order issued.

After defendant, a neurological rehabilitation center, removed employment discrimination case to federal court, plaintiff moved for remand based on untimely removal. After briefing and a telephone hearing, case remanded to Carroll County Superior Court where removing defendant failed to establish that removal period and deadline had been delayed by deficient service of process, in that record established that, despite what appeared to be a scrivener’s error or inaccuracy on the return of service document, plaintiff had effectuated proper service on the defendant’s registered agent more than 30 days prior to the Notice of Removal. Oral order – no written opinion. Judge Joseph N. Laplante.


CIVIL RIGHTS

7/12/16
Shannon F. v. Portsmouth School District SAU 52 et al.
Case No. 14-cv-368-JL, Opinion No. 2016 DNH 108

The minor plaintiff in this civil rights action sued the Portsmouth school district under a theory of municipal liability for an off-campus sexual assault perpetrated by one of its employees. The plaintiff alleged that the school district, through conspicuously failing to enforce certain existing policies concerning sexual harassment, sexual assault, and appropriate use of the school district computer system, invited its co-defendant employee to violate those policies. The court granted the school district’s motion for summary judgment, concluding, among other things, that the plaintiff, who bore that burden, produced no evidence that would allow a fact-finder to conclude that school district officials deliberately or conspicuously chose not to enforce the policies in question. 19 pages. Judge Joseph N. Laplante.


CONTRACTS - NONCOMPETE CLAUSE, TRADE SECRETS

7/11/16
Bankers Life v. Johnson
Case No. 15-cv-216-JL. No written opinion. Oral order issued.

Defendant employee was represented by counsel when plaintiff/former employer’s motion for preliminary injunction to enforce non-compete clause was granted. Now defending himself pro se, his motion for summary judgment was denied where genuine disputes of material fact existed as to his conduct in brokering insurance policies to plaintiff employer’s former clients, as well as meanings of ambiguous contract terms. Oral order – no written opinion. Judge Joseph N. Laplante.


ERISA

6/29/16
Elizabeth Senechal v. Aetna Life Insurance Company
Case No. 14–cv-186-SM, Opinion No. 2016 DNH 109

Plaintiff brought suit against defendant under the Employee Retirement Income Security Act (“ERISA”), challenging defendant’s decision to terminate long-term disability benefits provided under an employee welfare plan. Both parties moved for judgment on the administrative record. The court determined that the medical opinions relied upon by defendant were either internally inconsistent or did not support defendant’s determination, and, as a result, defendant’s treatment of the medical opinions in the record failed arbitrary and capricious review. Accordingly, the court denied both parties’ motions and remanded for administrative reconsideration of plaintiff’s entitlement to long-term disability benefits. 64 pages. Judge Steven J. McAuliffe.


HABEAS CORPUS, 28 U.S.C. § 2254

7/19/16
McGrath v. Warden, New Hampshire State Prison
Case No. 14-cv-353-JD, Opinion No. 2016 DNH 118

McGrath, proceeding pro se, sought a writ of habeas corpus, challenging his conviction in state court on charges of second degree assault and criminal mischief, which arose from an incident during which he tried to strangle his wife and then broke and damaged their household furnishings. In support he alleged that his conviction was obtained in violation of his right to due process and that his trial counsel provided ineffective assistance. The court granted the Warden’s motion for summary judgment on six of McGrath’s claims, finding some had not been exhausted and none had merit. 33 pages. Judge Joseph A. DiClerico, Jr.


MORTGAGE

6/20/16
Brown v. Wells Fargo Home Mortgage,
Case No. 15-cv-467-JL, Opinion No. 2016 DNH 102

In this action by defaulted mortgagors to recover damages and their home under a variety of statutory and common-law theories, the court granted the defendants’ motion to dismiss the complaint in part and denied it in part. The court concluded, among other things, that (1) the plaintiffs’ failure to challenge the foreclosure’s validity or to petition to enjoin the foreclosure sale before it occurred barred them from challenging the foreclosure’s validity after the fact under N.H. Rev. Stat. Ann. § 479:25, II; (2) though RESPA does not provide for equitable relief, thus preventing the plaintiffs from having the foreclosure sale set aside for defendants’ alleged violation thereof, the plaintiffs sufficiently alleged damages caused by that violation to proceed with a RESPA claim; (3) the plaintiffs alleged a violation of Regulation B promulgated under the ECOA through their contention that the defendants failed to notify them of any decision taken on their application for a loan modification; and (4) the plaintiffs alleged no facts supporting a claim that defendants violated New Hampshire’s UDUCPA. 17 pages. Judge Joseph N. Laplante.


PATENT LAW

6/13/16
SignalQuest v. Chou, et al.
Case No. 11-cv-392-JL, Opinion No. 2016 DNH 099

The parties to this patent infringement action presented competing constructions of numerous claim terms from U.S. Patent Nos. 7,067,748C1, 7,326,866C1, and 7,326,867C1, which describe an omnidirectional tilt and vibration switch. Construing those terms, the court ruled, among other things, that (1) “diameter” means “the distance through the center of something from one side to the other”; (2) the “first diameter” in the context of the patents’ claims is “distinct from the second diameter”; (3) “electrically conductive element” means “an element able to conduct electricity”; (4) “electrically insulative element” means “an element that prevents or reduces the transmission of electricity” and is not limited, under the doctrine of prosecution history estoppel, to a circular embodiment; (5) a “distal” surface, portion, or end refers to a surface, portion, or end that is “opposite in location to a proximate” surface, portion, or end; (6) the “top surface” is the “surface of the outer circumference,” the “bottom surface” is the “surface of the inner circumference,” and the “outer surface” is the “surface that joins the top surface and the bottom surface”; (7) “single internal surface” means “one surface on a side of the proximate portion of the electrically conductive element that is opposite to the flat end surface”; (8) “flat end surface” means “a boundary surface that is smooth, level, or even”; (9) “equal in dimension” means “equal in any geometric dimension”; and (10) “plastic” refers to the material of which the electrically insulative element is fabricated, not the material’s relative moldability. The court further concluded that none of the “portion,” “end,” or “surface” terms are indefinite. 42 pages. Judge Joseph N. Laplante.


PERSONAL JURISDICTION

7/13/16
Shannon N. De Leon v. Ocean Motion Watersports, Ltd.
Case No. 13–cv-218-SM, Opinion No. 2016 DNH 115

Plaintiff filed suit against several defendants, including a foreign corporation, seeking damages for injuries she sustained while vacationing on Grand Bahama Island. The foreign corporation failed to file an answer or dispositive pleading, and plaintiff’s motion for default was granted. Subsequently, plaintiff moved for default judgment. But, prior to ruling on that motion, the court issued an order noting its independent obligation to ensure that it may properly exercise personal jurisdiction over the defendant and directing plaintiff to show cause why her complaint should not be dismissed for want of personal jurisdiction. Plaintiff responded, but failed to carry her burden of proof. Accordingly, the court denied her motion for default judgment and, because plaintiff’s claims against all remaining defendants had been resolved by settlement, it dismissed the case. 7 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY

7/21/16
Nathan D. Seguin v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-121-SM, Opinion No. 2016 DNH 124

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his applications for Disability Insurance Benefits and Supplemental Security Income. Claimant argued that, in concluding that he was capable of performing a range of “medium” work, the ALJ erred by improperly assessing his credibility, failing to properly recognize his limited ability to read and write, and erroneously calculating his residual functional capacity. The court disagreed, concluding that the record contained substantial evidence to support the ALJ’s determinations. 24 pages. Judge Steven J. McAuliffe.


7/20/16
Robitaille v. SSA,
Case No. 15-cv-268-JL, Opinion No. 2016 DNH 121

On appeal from the Social Security Administration’s denial of the claimant’s application for disability benefits, the court affirmed the decision of the Administrative Law Judge (“ALJ”). The court concluded that the ALJ did not err in her assessment of Robitaille’s claimed mental impairments and migraine headaches and their impact on Robitaille’s residual functional capacity (“RFC”). Nor, the court concluded, did the ALJ err in discounting the credibility of Robitaille’s subjective complaints in light of their inconsistency with other evidence in the record. 14 pages. Judge Joseph N. Laplante.


7/20/16
Williams v. Social Security Administration
Case. No. 15-cv-186-JL, Opinion No. 2016 DNH 120

Claimant sought Social Security disability benefits based on bipolar disorder, anxiety disorder, borderline personality disorder, and alcohol abuse. 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 argued that the RFC constructed by the ALJ was flawed because it did not correctly weigh the evidence of Williams’s non-exertional limitations, leading to a conclusion that those limitations had little or no effect on the occupational base of unskilled work. Thus, claimant argued, the ALJ improperly relied upon the Medical Vocational Guidelines (“Grid”) rather than consulting a vocational expert to identify jobs that Williams could perform. The court reversed the ALJ’s ruling, finding that the ALJ improperly weighed her mental health-based limitations and erroneously relied on the Grid. 9 pages. Judge Joseph N. Laplante.


CIVIL MOTIONS

7/19/16
PCPA, LLC v. The Flying Butcher, LLC
Case No. 16-cv-112-PB, Opinion No. 2016 DNH 119

PCPA, LLC and Prime Choice Brands, LLC sued The Flying Butcher, LLC and Allan Bald in this court. The plaintiffs and the defendants here are also parties to arbitration proceedings in which, plaintiffs claim, the arbitrator improperly decided that the parties’ dispute was not “arbitrable.” Plaintiffs brought this action, seeking declaratory relief, and to stay the arbitration proceedings until the court, rather than the arbitrator, can decide whether their claims are arbitrable. Thereafter, plaintiffs moved to dismiss their complaint without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(2). Defendants opposed that motion. The court granted plaintiffs’ motion to dismiss, noting that (1) plaintiffs’ motion came early in the litigation, (2) the fact that defendants had already filed a motion for summary judgment did not itself preclude dismissal, and was not dispositive given the facts of the case, (3) there was no evidence that plaintiffs delayed excessively or lacked diligence in prosecuting their suit, and (4) plaintiffs provided a plausible explanation for moving to dismiss. 13 pages. Judge Paul J. Barbadoro.


ENVIRONMENTAL LAW

7/12/16
USA, et al. v. City of Portsmouth, et al.
Case No. 09-cv-283-PB, Opinion No. 2016 DNH 113

A group of Portsmouth residents sought to intervene n a long-running case involving the City of Portsmouth’s compliance with the Clean Water Act. The Court, over the City’s objection, allowed the residents to intervene, but limited their involvement to the legal issues presently before the court – namely, the approval of a modification of the consent decree originally signed by the City in 2009. 6 pages. Judge Paul J. Barbadoro.


FRAUDULENT JOINDER; REMOVAL

7/14/16
Martin Quigley v. Precision Castparts, Corp., et al.
Case No. 16-cv-90-PB, Opinion No. 2016 DNH 116

New Hampshire resident Martin Quigley filed a lawsuit in a New Hampshire state court against his former employer, an Oregon-based company named Precision Castparts Corp., and a host of other individual and corporate defendants. All of these defendants resided outside New Hampshire except one, an individual named Joshua Durand. Precision removed the case to federal court, claiming that Durand had been fraudulently joined solely to defeat diversity. Quigley moved to remand, arguing that he had stated valid claims against Durand, and therefore the case was not diverse. The Court, applying the standard for fraudulent joinder, agreed with Precision that Durand had been improperly joined, dismissed Durand from the suit, and retained jurisdiction. 13 pages. Judge Paul J. Barbadoro.


RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT

7/1/2016
Perfetto v. Plumpton
Case No. 14-cv-556-PB, Opinion No. 2016 DNH 110

Petitioner brought a Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim for damages against several current and former Hillsborough County House of Corrections employees. Plaintiff, a Jehovah’s Witness and former HCHC inmate, alleged that the defendants violated RLUIPA by enforcing a prison policy that barred plaintiff from distributing religious materials to other inmates. Defendants moved to dismiss plaintiff’s RLUIPA claim, arguing that RLUIPA does not permit individuals to pursue damages claims against county employees sued in their official capacity. The court denied defendants motion, concluding that (1) RLUIPA’s text allows for a damages remedy, (2) plaintiffs can bring RLUIPA damages claims against county employees in their official capacity, and (3) sovereign immunity did not bar RLUIPA damages claims, like plaintiff’s, against county employees. 13 Pages. Judge Paul J. Barbadoro.

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