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Bar News - October 19, 2016


US District Court Decision Listing

August and September 2016

* Published

BANKRUPTCY APPEAL

9/27/16
June White v. Olga Gordon, et al.
Case No. 15-cv-523-JL, Opinion No. 2016 DNH 174

The court affirmed the decision of the Bankruptcy Court that the appellant violated the automatic stay imposed by 11 U.S.C. § 362 by, among other actions, acquiring and recording a deed to a certain parcel of land upon which the appellant held a mortgage lien after the debtor filed for bankruptcy protection. The court concluded that the Bankruptcy Court did not err by treating the parcel of land as property of the debtor’s estate, despite the debtor’s conveyance of the land to a trust, in light of the debtor’s continued equitable interest in the land. The court also affirmed the Bankruptcy Court’s award of attorneys’ costs and fees to the trustee of the debtor’s bankruptcy estate under 11 U.S.C. § 105(a). 20 pages. Judge Joseph N. Laplante.


CIVIL PROCEDURE; VENUE; PERSONAL JURISDICTION

8/2/16
Jeffrey Taylor v. Nautical Ventures Marine, et al.
Case No. 16-cv-84-JL

In litigation over condition of boat manufactured in North Carolina, sold in Florida and delivered to New Hampshire, court declined to rule on close issue of personal jurisdiction over each of two defendants, and instead transferred case to Southern District of Florida, which has a more proper venue and which clearly had personal jurisdiction over both defendants. Order dated 8/2/16, document no. 23. 3 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS, PRISONERS

9/20/16
Gray v. Perkins et al.,
Case No. 14-cv-386-PB, Opinion No. 2016 NH 168

Plaintiff, a New Hampshire State Prison inmate, sued individuals working at the prison, alleging that defendants: violated his Eighth Amendment rights through their deliberate indifference to his serious medical and dental needs, and to risks to plaintiff’s safety posed by other inmates and unsafe conditions of his confinement; and his First Amendment rights to petition the government for a redress of grievances and to freely exercise his religion. The court granted summary judgment on the claims concerning medical and dental care, on the basis that plaintiff failed to exhaust his administrative remedies for those claims, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and on the Free Exercise claim, as plaintiff failed to demonstrate the existence of facts upon which a jury could find that defendants had violated the First Amendment by confiscating of his religious materials. The court denied summary judgment on the remainder of the claims in the suit, finding that plaintiff demonstrated a genuine issue of material fact as to whether the prison’s administrative grievance procedures were available to plaintiff, thereby defeating defendants’ argument, at the summary judgment stage, that plaintiff failed to exhaust available administrative remedies as to those claims. 31 pages. Judge Paul J. Barbadoro.


EMPLOYMENT

8/1/16
Sherry Dunham v. Concord Hospital
Case No. 14-cv-483-JL, Oral order – no written opinion

In employment case (state and federal sexual discrimination, retaliation, and wrongful termination) brought by former security guard against Concord Hospital, defendant’s motion for summary judgment denied where genuine factual and material disputes existed as to the severity and pervasiveness of hostile work environment, as well as reasons for and circumstances surrounding termination. Order issued from the bench. No written opinion. Judge Joseph N. Laplante.


EVIDENCE

8/23/16
United States v. Steven Petrillo
Case No. 15-cr-192-01-JL, Opinion No. 2016 DNH 152*

An order ruling on several evidentiary motions in limine before criminal trial under 18 U.S.C. § 1001 for false statements to the United States government, court excluded certain information found on Walmart employment “exit documents” as more prejudicial than probative under Federal Rules of Evidence 403 (despite their relevance as to knowledge, motive, and materiality), and rules that documents generated by Equifax were not admissible as Walmart “business records” under the hearsay exception at Federal Rule of Evidence 803(6). 13 pages. Judge Joseph N. Laplante.

HABEAS CORPUS

9/15/16
Derek Kucinski v. United States of America
Case No. 16-cv-201-PB, Opinion No. 2016 DNH 163 Anthony M. Shea v. United States of America
Case No. 16-cv-235-PB Anthony Sawyer v. United States of America
Case No. 16-cv-250-PB James C. Karahalios, Jr. v. United States of America
Case No. 16-cv-254-PB Gerard Boulanger v. United States of America
Case No. 16-cv-266-PB Arthur Durham v. United States of America
Case No. 16-cv-274-PB Matthew Karahalios v. United States of America
Case No. 16-cv-286-PB

Seven prisoners filed habeas corpus petitions under 28 U.S.C. § 2255, challenging their convictions under 18 U.S.C. § 924(c) for using a firearm in a “crime of violence.” They argued that § 924(c)’s residual clause is unconstitutionally vague in light of the Supreme Court’s recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which held that that a similar residual clause is unconstitutionally vague. Johnson announced a new rule that applies retroactively to cases on collateral review. The prisoners argue that their petitions are timely under the statute of limitations in § 2255(f) because they were filed within a year of Johnson.

To determine whether Johnson recognized a new right for purposes of § 2255(f)(3), the court adopted the Supreme Court’s analytical framework for determining whether a judicial decision announces a new rule that is retroactively applicable on collateral review. Applying that framework, and noting that some circuits have held that Johnson does not invalidate § 924(c)’s residual clause, the court concluded that reasonable jurists could disagree. The court held that the prisoners’ petitions were untimely under § 2255(f)(3). 12 pages. Judge Paul J. Barbadoro.


9/14/16
Patrick Chasse v. United States of America
Case No. 15-cv-473-PB, Opinion No. 2016 DNH 164

Patrick Chasse pleaded guilty in 2011 to a number of offenses, including federal bank robbery, pharmacy robbery, and two counts of committing a “crime of violence” under 18 U.S.C. § 924(c). The two robbery counts served as predicates for the § 924(c) counts. Chasse brought a habeas motion under 28 U.S.C. § 2255 to vacate his § 924(c) convictions. A § 924(c) offense is predicated on the commission of a “crime of violence” involving a firearm. Section 924(c) defines “crime of violence” as either a felony involving physical force as an element (the “force clause”) or a felony involving the substantial risk of physical force (the “residual clause”). Chasse argued that Johnson v. United States, a recent Supreme Court decision striking down as unconstitutionally vague a clause similar to the residual clause in § 924(c), rendered his § 924(c) convictions unconstitutional. The government replied that Chasse had procedurally defaulted on his claim. Though a habeas petitioner may excuse a default by showing cause and prejudice, the government argued that Chasse could not show prejudice. Even if the residual clause were unconstitutional, each robbery count qualifies as a “crime of violence” under the force clause. The court agreed. Analyzing just the elements of the predicate robberies, the court ruled that each would qualify as a “crime of violence.” The least physically forceful version of each crime would still involve intimidation, and intimidation satisfies the force clause of § 924(c). 16 pages. Judge Paul J. Barbadoro.


MORTGAGE

8/31/16
Boyd v. Wells Fargo
Case No. 16-cv-131-JL, Opinion No. 2016 DNH 156

The court granted the defendant’s motion to dismiss this action, in which a third party to a mortgage challenged the mortgage-holder’s foreclosure of the mortgage on her home, seeking injunctive relief and quiet title to the property. The court concluded that the plaintiff failed to state a claim for injunctive relief, insofar as she conceded that the mortgage was in default, did not challenge the validity of the foreclosure, and cited no statutory or regulatory requirement violated during the foreclosure process. The court further concluded that the plaintiff, to whom the property was conveyed subject to the mortgage, alleged no facts supporting a claim to good title. 7 pages. Judge Joseph N. Laplante.


MOTION FOR JUDGMENT OR NEW TRIAL AND/OR REMITTITUR

9/16/16
Maureen McPadden v. Wal-Mart Stores East, L.P.
Case No. 14–cv-475-SM, Opinion No. 2016 DNH 160

After a jury ruled in plaintiff’s favor on 4 of her workplace discrimination claims and awarded her substantial damages, defendant moved for judgment as a matter of law or, in the alternative, a new trial. Failing that, defendant sought remittitur. The court denied the former motions, concluding defendant failed to meet its substantial burden to demonstrate that the evidence pointed so strongly and overwhelmingly in its favor that no reasonable jury could have returned a verdict adverse to it. The court also denied defendant’s motion to remit the jury’s award of compensatory damages. It did, however, substantially reduce the jury’s advisory verdict on front pay. Finally, the court proposed to certify to the N.H. Supreme Court several questions of law concerning the availability of enhanced compensatory damages under New Hampshire’s Law Against Discrimination. 24 pages. Judge Steven J. McAuliffe.


NEGLIGENCE

9/29/16
Ashley M., et al. v. Spaulding Youth Center, et al.
Case No. 16-cv-37-JL, Opinion No. 2016 DNH 175

Plaintiffs in this action alleged a variety of statutory and common-law claims against Spaulding Youth Center, the Auburn School District, and several related defendants, arising from instances in which another student allegedly sexually harassed minor T.F. while at Spaulding. The court granted defendants’ motions to dismiss two negligence claims brought by T.F.’s parents, on their own behalf, alleging that various defendants violated a duty owed to them by failing to notify them of the incidents. The court concluded that New Hampshire law does not recognize such a duty owed to the student’s parents. 15 pages. Judge Joseph N. Laplante.


PRELIMINARY INJUNCTION

8/3/16 Galvin v. Metrocities Mortgage, LLC, et al.
Case No. 16-cv-268-JL. No opinion number.

Plaintiffs sought emergency injunctive relief to prevent foreclosure of home. Request for relief was premised upon claim that original mortgage was void and/or that plaintiffs had rescinded mortgage. Finding that plaintiffs had failed to demonstrate a likelihood of success on the merits the court denied the motion after oral argument. 10 pages. Judge Joseph N. Laplante.


PRISONER CIVIL RIGHTS - EXCESSIVE FORCE

9/28/16
Christopher R. Beaulieu v. John P. Aulis, Aaron M. Belanger, Edward P. Kirrane, Dominic M. Salce, Michael Shepley, Paul Laflamme, Kevin Washburn, Jason Whitney, Scott Collier, and Rueben J. Ruiter
Case No. 14–cv-280-SM, Opinion No. 2016 DNH 171

Pro se plaintiff, an inmate at the NHSP, brought suit against eight corrections officers, alleging they violated his Eighth Amendment rights: (a) by failing to protect him from alleged harassment by a fellow inmate; and (b) by using excessive force against him after he attempted to strike an officer with a belt. After carefully reviewing the record evidence, the court concluded that there are no genuinely disputed material facts and defendants are entitled to judgment as a matter of law. Specifically, the court found that it is undisputed that defendants did not show “deliberate indifference” to plaintiff’s safety, nor did the de minimus use of force against him (in order to retrieve a weapon he refused to relinquish) constitute an “unnecessary and wanton infliction of pain.” Defendants’ motion for summary judgment granted. 24 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY

8/5/16
Hatch v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-251-JL, Opinion No. 2016 DNH 130

In this appeal from a denial of Supplemental Security Income benefits, the matter was remanded to the Social Security Administration because the ALJ failed to articulate good reasons for giving limited weight to the opinion of a treating medical source. 20 pages. Judge Joseph N. Laplante


8/9/16
Bodette v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-282-JL, Opinion No. 2016 DNH 131

In this appeal from a denial Disability Insurance Benefits and Supplemental Security Income benefits, the matter was remanded to the Social Security Administration because the ALJ failed to properly consider a medical opinion underlying a decision under which the claimant was awarded benefits from the State of New Hampshire’s Aid to the Permanently and Totally Disabled program. 18 pages. Judge Joseph N. Laplante.


8/17/16
Lacourse v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-375-JL, Opinion No. 2016 DNH 140

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 assigning weight to the opinion of one medical source when determining Lacourse’s residual functional capacity or in assessing the credibility of Lacourse’s subjective complaints. 17 pages. Judge Joseph N. Laplante.


9/30/16
Kathrine Douglas v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-378-PB, Opinion No. 2016 DNH 176

Claimant appealed the Acting Commissioner’s denial of her claims for disability insurance benefits and supplemental security income. Claimant principally contended that the Administrative Law Judge (“ALJ”) erred in formulating Claimant’s residual functional capacity (“RFC”) and in relying on expert testimony from a prior hearing. The court found no error. There was substantial evidence to support the RFC formulated by the ALJ. Further, Claimant had notice that the ALJ may use expert testimony from a prior hearing and had sufficient opportunity to cross-examine. 36 pages. Judge Paul J. Barbadoro.


9/12/16
Doris T. Gottier v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15–cv-355-SM, Opinion No. 2016 DNH 161

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying her applications for Disability Insurance Benefits. She argued, in part, that the ALJ failed to properly assess her credibility. The court agreed, finding the ALJ’s credibility assessment problematic for several reasons. First, it was not clear from the ALJ’s decision whether he had determined that the claimant suffered from an impairment reasonably likely to cause her symptoms. Second, the ALJ focused on the claimant’s credibility and the objective medical evidence generally, and, as a result, the court could not determine which of the claimant’s statements the ALJ found were not substantiated by objective medical evidence. Third, it was not sufficiently clear from the ALJ’s decision that he considered the requisite factors set forth in Social Security Ruling 96-7p. Accordingly, the case was remanded for further administrative proceedings. 21 pages. Judge Steven J. McAuliffe.


9/13/16
Regalado v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15-cv-299-PB, Opinion No. 2016 DNH 165

In this appeal from a denial of Social Security benefits, the court remanded because the ALJ failed to properly consider the opinion from an “other source” who was not an acceptable medical source, and also failed to properly assess the credibility of the claimant’s statements about his symptoms. 24 pages. Judge Paul Barbadoro

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