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Bar News - April 19, 2017


US District Court Decision Listing

* Published

March 2017

AMERICANS WITH DISABILITIES ACT

3/24/17
John Dabilis, as parent and Next Friend of Thomas Dabilis v. Hillsborough County, et al.
Case No. 14-cv-371-JD, Opinion No. 2017 DNH 059

The plaintiff alleged that Hillsborough County violated the ADA by following the jail’s usual procedure to remove the plaintiff’s son from a cell. The plaintiff argued that his son’s odd behavior put the officers on notice that he was mentally ill and that the officers should have provided accommodations for his mental illness to remove him from his cell. The court granted the defendants’ motion for summary judgment, concluding that the plaintiff had not shown a triable issue as to whether his son was a qualified individual with a disability, within the meaning of the ADA, or that Hillsborough County discriminated against him. 15 pages. Judge Joseph A. DiClerico, Jr.


CONSTITUTIONAL LAW

3/17/17
Frank Staples v. NH State Prison, Warden, et al.
Case No. 16-cv-33-PB, Opinion No. 2017 DNH 046

A former inmate sued various prison officials, alleging violations of the federal constitution and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The defendants moved to dismiss the complaint in its entirety. A prior order dismissed the RLUIPA claims, and this Memorandum and Order addressed the constitutional claims. The court held that the parole board members were entitled to absolute immunity, and the remaining defendants were entitled to qualified immunity, with two exceptions. The plaintiff stated a retaliation claim against a correctional officer who pepper-sprayed him after he filed internal grievances and a legal action. The plaintiff also stated an Eighth Amendment claim against two correctional officers for using excessive force. 20 pages. Judge Paul J. Barbadoro.


FEDERAL TAX LIENS

3/3/17
United States of America v. Donna Schipani and RBS Citizens, N.A.
Case No. 16–cv-67-SM, Opinion No. 2017 DNH 041

The parties dispute whether the government has an enforceable tax lien against a one-half interest in property formerly owned by the delinquent taxpayer - defendant’s ex-husband. The government contends that when its tax lien arose, the delinquent taxpayer retained an interest in the property, despite the fact that title to the property was held in a revocable trust. Defendant says the government failed to properly perfect its lien against the property. The court denied the parties’ cross-motions for summary judgment, concluding that there are genuinely disputed material facts. Additionally, it noted that the relief the government seeks - an immediate forced sale of defendant’s residence - invokes the court’s equitable powers. And, although such relief would seem prejudicial to both the defendant and her daughter (both of whom live in the home and neither of whom is at fault), neither party adequately addressed whether it would be appropriate to award the equitable relief sought by the government or whether, for example, it might be appropriate to delay such relief. 13 pages. Judge Steven J. McAuliffe.


FORECLOSURE-LIEN PRIORITY

3/20/17
Olga L. Gordon, Trustee for the Chapter 7 Estate of Licka Hosch v. Envoy Mortgage, Ltd.
Case No. 16–cv-307-SM, Opinion No. 2017 DNH 050

This is an appeal of an order issued by the bankruptcy court, dismissing the Trustee’s complaint in an adversary proceeding against Envoy Mortgage. The Trustee asserts that because Envoy recorded its foreclosure deed beyond the time permitted by New Hampshire law, her § 544 lien on the property (which was recorded after the foreclosure sale, but prior to Envoy’s untimely recording of the foreclosure deed) remains a valid lien on the property and, pursuant to RSA 479:26, Envoy cannot “re-foreclose” its mortgage to extinguish that lien. The court affirmed the bankruptcy court’s holding that Envoy’s untimely recording of the foreclosure deed rendered the foreclosure sale “void” as to the Trustee’s lien, but Envoy’s mortgage remains a valid, priority lien, subject to re-foreclosure. 26 pages. Judge Steven J. McAuliffe.


FRAUD; MULTI-DISTRICT LITIGATION

3/27/17
In re: Dial Complete Marketing and Sales Practices Litigation
Case No. 11–md-2263-SM, Opinion No. 2017 DNH 051

Consumers in Arkansas, California, Florida, Illinois, Louisiana, Missouri, Ohio and Wisconsin brought suit on behalf of themselves and similarly situated consumers, alleging that Dial continually misrepresented the antibacterial properties of its “Dial Complete” branded soaps. Following the court’s denial of their initial motion for class certification in December 2015, plaintiffs filed an amended motion, attempting to address deficiencies the court identified in its December 2015 order. Specifically, plaintiffs argued that class-wide damages could be reliably calculated in a manner that comports with their theory of liability. In support, plaintiffs relied upon the declaration and hearing testimony of a new expert. Utilizing a conjoint analysis methodology, plaintiffs’ expert opined that damages could be calculated on a class wide basis by focusing on measuring the marginal consumer’s “willingness-to-pay.” Plaintiffs argued that this method reliably calculated that portion of the product’s overall purchase price attributable to the challenged claim. The court agreed, finding that the model proposed by plaintiffs’ expert was reasonably capable of reliably isolating the price premium associated with the challenged claims in a manner consistent with plaintiffs’ theories of liability. 32 pages. Judge Steven J. McAuliffe.


MEDICAID ACT

3/2/17
New Hampshire Hospital Association v. Burwell
Case No. 15-cv-460-LM, Opinion No. 2017 DNH 040 P

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 contradict the plain language of the Medicaid Act and violate the Administrative Procedure Act (“APA”). The parties cross-moved for summary judgment. The court granted plaintiffs’ motion as to Counts I and II, holding that the defendants’ actions violated the APA because the policy clarifications were promulgated in excess of statutory jurisdiction, authority, or short of statutory right and without following the necessary notice-and-comment procedures. The court granted the defendants’ motion as to Count III, holding that plaintiffs failed to show that the public notice requirements that must be followed prior to an amendment of a state’s Medicaid plan were implicated by the defendants’ actions. 48 pages. Judge Landya McCafferty.


MEDICAL INSURANCE

3/3/17
Warren Wallis v. HCC Life Insurance Company
Case No. 15–cv-525-SM, Opinion No. 2017 DNH 039

Plaintiff applied for a short-term, non-renewable medical insurance policy from defendant - a policy that specifically excludes coverage for pre-existing conditions. In his application, however, he answered falsely when asked whether, within the past five years, he had been diagnosed with heart disease. After the policy issued, plaintiff required treatment for his heart disease. And, when defendant denied his claims under the policy, he brought suit seeking a declaratory judgment that he is entitled to coverage. The court granted defendant’s motion for summary judgment, concluding that: (1) defendant lawfully rescinded the policy because plaintiff failed to disclose a fact that materially affected defendant’s acceptance of the risk assumed, see RSA 415:9; and (2) even if it had improperly rescinded the policy, defendant acted within its contractual rights when it denied plaintiff’s claim under the policy’s exclusion for pre-existing conditions. 27 pages. Judge Steven J. McAuliffe.


MORTGAGES; FORECLOSURES; CONTRACTS

3/21/17
Richard Butterfield v. Deutsche Bank National Trust
Case No. 16-cv-348-PB, Opinion No. 2017 DNH 054

Former homeowner asserted claims of wrongful foreclosure, breach of contract, and lack of power and authority to foreclose. The defendant bank moved to dismiss. The court granted the motion because the plaintiff was not entitled to actual notice of the foreclosure sale, and claims that were not brought prior to the foreclosure sale were barred by RSA 479:25. 5 pages. Judge Paul J. Barbadoro.


PATENT

3/9/17
Sig Sauer, Inc., Check-Mate Industries, Inc., Check-Mate International Products, Inc., Nordon, Inc., and Thomas Pierce d/b/a Pierce Designs v. Freed Designs, Inc.
Case No. 14–cv-461-SM, Opinion No. 2017 DNH 045

Defendant/patentee filed a motion for partial summary judgment, seeking a declaration that plaintiffs’ accused products literally infringe the patent-in-suit. The court denied that motion, concluding that there remain genuinely disputed issues of material fact, particularly since neither party has yet provided expert opinion regarding the characteristic features in the patented and accused device. 3 pages. Judge Steven J. McAuliffe.


QUALIFIED IMMUNITY

3/2/17
Petrello v. City of Manchester, et al.
Case No. 16-cv-008-LM, Opinion No. 2017 DNH 053

Plaintiff brought suit against the City of Manchester and Manchester Police Officer Ryan J. Brandreth in his individual capacity, alleging that defendants violated her constitutional rights while she was panhandling in a public place. Plaintiff claimed that Officer Brandreth violated her Fourth and First Amendment rights in June 2015 when he issued her a summons on one count of disorderly conduct for obstructing vehicular traffic, in violation of RSA 644:2, II(c). Officer Brandreth moved for judgment on the pleadings on qualified-immunity grounds. The court granted the motion as to plaintiff’s Fourth Amendment claim, holding that Officer Brandreth had at least arguable probable cause to charge plaintiff with violation-level disorderly conduct, and granted the motion as to her First Amendment claim, holding that on the date of the incident in question, there was no clearly established law prohibiting an officer from issuing a summons to a panhandler whom he reasonably believed was obstructing traffic. The City of Manchester remains a defendant in the case. 18 pages. Judge Landya McCafferty.


SOCIAL SECURITY

3/27/17
Nicole Hafford v. US Social Security Administration, Acting Commissioner, Nancy A. Berryhill
Case No. 15-cv-426-PB, Opinion No. 2017 DNH 060

Claimant appealed the Social Security Administration’s decision to deny her claim for disability insurance benefits. Claimant argued, inter alia, that the Administrative Law Judge (“ALJ”) had failed to address a functional limitation expressed in a psychologist’s opinion. The court agreed, reversing the ALJ’s decision. The ALJ was required to address the conflict in the evidence presented by the opinion and failed to do so. 13 pages. Judge Paul J. Barbadoro.


3/27/17
Valerie Marie Breton v. US Social Security Administration, Acting Commissioner, Nancy Berryhill
Case No. 16-cv-23-PB, Opinion No. 2017 DNH 061

Claimant appealed the Social Security Administration’s decision to deny her claim for disability insurance benefits. The court affirmed the Administrative Law Judge’s (ALJ’s) decision because it was supported by substantial evidence. Specifically, there was substantial that the claimant’s impairments did not medically equal a listing because she did not have marked impairments in activities of daily living, social functioning, and concentration. The ALJ properly assessed the claimant’s residual functional capacity, and a vocational expert’s testimony based on that assessment provided substantial evidence for the ALJ’s conclusion that the claimant could work. 26 pages. Judge Paul J. Barbadoro.


3/31/17
Angela Susan Barup v. US Social Security Administration, Acting Commissioner, Nancy A. Berryhill
Case No. 16-cv-62-PB, Opinion No. 2017 DNH 063

Claimant appealed the Social Security Administration’s decision to deny her claim for disability insurance benefits. Claimant principally argued that the Administrative Law Judge (“ALJ”) impermissibly interpreted raw medical evidence, erred in weighing opinion evidence, and did not properly evaluate her non-severe impairments. The court found no reversible error and affirmed the ALJ’s decision. 31 pages. Judge Paul J. Barbadoro.


3/31/17
Dale Duguay v. US Social Security Administration, Acting Commissioner, Nancy A. Berryhill
Case No. 15-cv-520-PB, Opinion No. 2017 DNH 064

Claimant appealed the Social Security Administration’s decision to deny his claim for disability insurance benefits. His eligibility for those benefits hinged on the question of when his disability onset occurred. On appeal, the court held that the Administrative Law Judge (ALJ) violated SSR 83-20 in failing to consult a medical advisor in determining the onset date. Because the medical record was ambiguous and the ALJ lacked precise medical evidence establishing the onset date, the ALJ erred in inferring the date on his own. The court further held that the ALJ lacked substantial evidence. The court reversed the ALJ’s decision and remanded for further administrative proceedings. 24 pages. Judge Paul J. Barbadoro.

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