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Bar News - September 21, 2016

US District Court Decision Listing

August 2016

* Published

28 U.S.C. § 2255

Derek Kucinski v. United States
Case No. 16-cv-201-PB, Opinion No. 2016 DNH 147

Derek Kucinski was convicted of several offenses in 2013, including a charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He received an enhanced sentence, pursuant to the Armed Career Criminal Act (“ACCA”), because his prior federal bank robbery convictions were treated as “violent felonies” under the ACCA. Kucinski recently filed a 28 U.S.C. § 2255 motion to vacate his § 922(g) sentence in light of Johnson v. United States, 135 S. Ct. 2551 (2015), where the United States Supreme Court held that the ACCA’s residual clause is unconstitutionally vague. The government opposed that motion, arguing that Johnson does not affect Kucinski’s sentence, because federal bank robbery qualifies as a violent felony under the ACCA’s so-called “elements clause.” The court agreed with the government, concluding that federal bank robbery (1) requires the use, attempted use, or threatened use of physical force, (2) demands violent force, rather than merely offensive touching, and (3) has a sufficient mens rea to qualify as a violent felony. 19 Pages. Judge Paul J. Barbadoro.


Frederick Nashawaty v. Winnipesaukee Flagship Corp.
Case No. 15-cv-118-JD, Opinion No. 2016 DNH 135

Nashawaty brought a claim under the ADEA, alleging that his former employer, Winnipesaukee Flagship Corporation (“WFC”) caused his constructive discharge by discriminating against him based on his age. WFC moved for summary judgment, contending that Nashawaty could not prove constructive discharge because he continued to receive his salary and his complaints were ego issues rather than actionable discrimination. The court denied the motion, concluding that factual disputes precluded summary judgment. 11 pages. Judge Joseph A. DiClerico, Jr.


Karen LaBranche v. Frisbie Memorial Hospital, et al.
Case No. 14-cv-566-PB, Opinion No. 2016 DNH 197

Former operating room nurse Karen LaBranche sued her former employer, Frisbie Memorial Hospital, and several individual defendants, for alleged violations of the Family Medical Leave Act, defamation, and negligent infliction of emotional distress. On a motion for summary judgment, the court denied summary judgment as to the FMLA counts and granted summary judgment as to the state law claims. 32 pages. Judge Paul J. Barbadoro.


Katherine Frederick v. State of New Hampshire, New Hampshire Department of Health and Human Services
Case No. 14–cv-403-SM, Opinion No. 2016 DNH 139

Plaintiff filed an amended complaint asserting federal claims under Title VII and the Americans with Disabilities Act, as well as a state law claim for wrongful discharge. Defendant moved to dismiss plaintiff’s claims, arguing, inter alia, that plaintiff had not exhausted her administrative remedies, that her claims were time-barred and, finally, that she had not adequately stated a claim. The court held that the plaintiff had adequately exhausted her administrative remedies, and that her claims related back under Fed. R. Civ. P. 15(c) and, therefore, were timely asserted. The court further concluded that plaintiff had adequately stated a claim under the Americans with Disabilities Act and for wrongful discharge under state law. However, the court held that plaintiff had not sufficiently stated a Title VII claim, and granted defendant’s motion to dismiss in part. 29 pages. Judge Steven J. McAuliffe.


Signs for Jesus, et al. v. Town of Pembroke, et al.
Case No. 15-cv-482-PB, Opinion No. 2016 DNH 126

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 suit against the Town of Pembroke, the Town’s Zoning Board of Adjustment (“ZBA”), and the Town’s Code Enforcement Officer. Defendants moved, pursuant to Federal Rule of Civil Procedure 14(a)(1), for leave to file a third-party complaint against the State of New Hampshire and School Administrative Unit 53 (“SAU 53”), both of which maintained electronic signs in Pembroke. In the alternative, defendants moved to add the State and SAU 53 as required parties under Federal Rule of Civil Procedure 19(a)(1). The court denied both requests, concluding (1) that defendants’ proposed third-party complaint did not set out a viable claim for relief, and (2) that litigating the Church’s claims without including the State and SAU 53 as a party would not “impair or impede” those entities’ interests. 10 Pages. Judge Paul J. Barbadoro.


Signal Variety, Inc., d/b/a Signal Variety v. Patriot Insurance Company
Case No. 15–cv-452-SM, Opinion No. 2016 DNH 136

Signal Variety filed this action seeking a declaratory judgment that it was entitled to insurance coverage under a policy issued to it by Patriot Insurance. Signal was named as a defendant in an underlying state-court action in which it was alleged to have caused or contributed to a drunk driving accident involving one of its employees (who allegedly stole alcohol from the store, became intoxicated, and caused the automobile accident in which the state-court plaintiffs were injured). After carefully reviewing the policy at issue, the court granted Patriot’s motion for summary judgment, holding that the policy’s “Liquor Liability Exclusion” precluded coverage in the underlying state court action against Signal Variety. 17 pages. Judge Steven J. McAuliffe.


Michael and Jessica McCarthy v. Waxy’s Keene, et al.
Case No. 16-cv-122-JD, Opinion No. 2016 DNH 133

The defendants moved to dismiss some of the claims brought against them on the grounds that personal jurisdiction was lacking as to some defendants, other defendants do not exist, veil piercing was not sufficiently pleaded to support the liability of two defendants on that ground, Waxy’s Keene was not liable under the FMLA, and pregnancy is not a disability under the ADA. The court granted the motion as to the veil piercing theory but otherwise denied the motion on the ground that the issues raised required further factual development and would be better addressed through a motion for summary judgment. 13 pages. Judge Joseph DiClerico, Jr.


Dennis M. Mounce v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 10-cv-560-PB, Opinion No. 2016 DNH 145

Attorney Elizabeth Jones filed a motion for an award of attorney’s fees of $37,953.63 for her work representing Social Security claimant Dennis Mounce before this court. Jones based her request on a fee agreement she signed with Mounce. In a previous order, the court requested further briefing to clarify whether Jones’s fee agreement was enforceable, and if not, what standard the court should apply to determine her fee award. Having received further briefing, the court ruled that Jones’s agreement did not address fees under 42 U.S.C. § 406(b), but nonetheless awarded her $21,900, or twice the lodestar, by applying the principles of Gisbrecht v. Barnhart, 535 U.S. 789 (2002). 9 pages. Judge Paul J. Barbadoro.

Jay Gagnon v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15–cv-237-SM, Opinion No. 2016 DNH 134

Claimant moved to reverse the Acting Commissioner’s decision denying his applications for Disability Insurance Benefits and Supplemental Security Income Benefits. He argued that the ALJ erred in concluding that he did not have severe mental health impairments at step two of the sequential analysis. The court agreed, concluding that the ALJ erred in disregarding the majority of the medical opinions in the record. Accordingly, the court granted claimant’s motion in part and remanded for further proceedings. 21 pages. Judge Steven J. McAuliffe.

Richard J. Gobis, Jr. v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15–cv-268-SM, Opinion No. 2016 DNH 137

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 the ALJ erred by failing to afford controlling weight to the opinions of his treating medical sources, improperly discounted claimant’s credibility, and erroneously determined claimant’s residual functional capacity. The court disagreed, concluding that there was substantial evidence in the record to support the ALJ’s assessment of claimant’s credibility, RFC determination, and decision to discount some of the opinions of claimant’s medical sources. Substantial evidence also supported the ALJ’s determination that claimant was not disabled. 19 pages. Judge Steven J. McAuliffe.


Sunday Williams v. United States of America
Case No. 15-cv-464-JD, Opinion. No. 2016 DNH 132

After pleading guilty in 2004 to a charge of making a false statement on a passport application, Williams sought a writ of coram nobis, arguing that his counsel had provided ineffective assistance by changing his plea without his consent and by misrepresenting and failing to advise Williams about the immigration consequences of his guilty plea. The court previously granted the government’s motion to dismiss the second claim. In this order, the court dismissed the first claim on the grounds that Williams waited too long to raise the issue without an adequate explanation for the delay and Williams did not show that his counsel’s representation was deficient or that he suffered any prejudice. 12 pages. Judge Joseph DiClerico, Jr.

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