New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

Set Your Business Apart - Advertise with NH Bar News!

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - May 17, 2017

US District Court Decision Listing

* Published

April 2017


Duryea v. MetroCast Cablevision of New Hampshire, LLC, et al.
Case No. 15-cv-164-LM, Opinion No. 2017 DNH 078

Plaintiff sued her former employer, MetroCast Cablevision of New Hampshire, LLC, asserting claims for unlawful disability discrimination and harassment under RSA 354-A and the Americans with Disabilities Act (ADA), as well as claims for retaliation under RSA 354-A:19, the ADA, and the Family and Medical Leave Act (FMLA). MetroCast moved for summary judgment on all counts. The court denied MetroCast’s motion for summary judgment on plaintiff’s hostile work environment claims under RSA 354-A and the ADA, concluding that plaintiff had presented sufficient evidence to create a triable issue as to whether she was subjected to a hostile work environment based on her disabilities, but granted the motion on plaintiff’s remaining discrimination and retaliation claims. The court held that: (1) plaintiff had not shown a triable issue as to whether MetroCast failed to reasonably accommodate her disabilities or otherwise subjected her to disparate treatment; (2) plaintiff offered no evidence to show that MetroCast’s stated non-retaliatory reason for terminating her employment was pretextual; and (3) plaintiff’s FMLA retaliation claim was barred by the statute of limitations. 39 pages. Judge Landya McCafferty.


United States v. David Morel Jr.
Case No. 14-cr-148-JL, Opinion No. 2017 DNH 072

The defendant moved to suppress child pornography allegedly seized from his computer, and statements made during a custodial interview, on grounds that (1) evidence on his computer was obtained as the result of a warrantless search by Imgur of images uploaded to their image-hosting service, and (2) the warrant pursuant to which his computer was searched lacked probable cause and was obtained after undue delay. Following two evidentiary hearings, the court denied both motions. As to the first motion, it found that the defendant lacked a reasonable expectation of privacy in images uploaded to Imgur’s servers and in the IP address from which those images were uploaded, and thus that any search of those images did not violate the Fourth Amendment. As to the second motion, the court concluded that, although the detective failed to attach images of purported child pornography to the affidavit supporting his warrant application, he described the apparent ages of the children with sufficient specificity to enable the reviewing magistrate to conclude that the images depicted minors. The court also concluded that the delay between the time the police obtained the defendant’s computer and the search warrant application submitted two months later was not unreasonable because the computer remained in police custody as evidence of an earlier-reported burglary. 31 pages. Judge Joseph N. Laplante.


Rodger v. United States
Case No. 16-cv-468-AJ, Opinion No. 2017 DNH 055

This case involves a medical malpractice claim brought under the Federal Tort Claims Act (“FTCA”). The Government moved to dismiss, arguing that the claim was barred by the FTCA’s two-year limitations period, and the plaintiffs objected. The primary dispute was whether the plaintiffs’ claims accrued at the time of an initial cancer diagnosis, which would make the action untimely, or at the time of a subsequent diagnosis of metastatic cancer, which fell within the two-year limitations period. The court concluded that this was not an issue that could be resolved solely on the pleadings, and denied the motion to dismiss without prejudice to the Government re-raising the limitations period as a defense at a later time. 20 pages. Magistrate Judge Andrea K. Johnstone.


McNutt v. Wells Fargo Bank, N.A.
Case No. 16-cv-405-AJ, Opinion No. 2017 DNH 067

In an amended complaint, the plaintiffs brought counts for “equitable considerations,” fraud in the inducement, breach of the covenant of good faith and fair dealing, negligence, negligent misrepresentation, violations of the New Hampshire Consumer Protection Act (“CPA”), and violations of the Real Estate Settlement Procedure Act (“RESPA”), all relating to a balloon payment due on the maturity date of their modified mortgage. The defendant moved to dismiss the action in its entirety. The plaintiffs voluntarily dismissed the CPA claim, but otherwise objected. The court granted the motion in part, concluding that the plaintiffs had not adequately pleaded claims for fraud in the inducement, violations of RESPA, or “equitable considerations,” and that the negligence claim was barred by the economic loss doctrine. The court concluded that the plaintiffs had adequately pleaded claims for breach of the covenant of good faith and fair dealing both in contract formation and in discretion in contract performance. The court also allowed the negligent misrepresentation claim to proceed on the basis that the parties had not had opportunity to brief whether the defendant was a “supplier of information” such that the negligent misrepresentation exception to the economic loss doctrine applied. 19 pages. Magistrate Judge Andrea K. Johnstone.

Elias v. Specialized Loan Servicing, LLC
Case No. 15-cv-330-AJ, Opinion No. 2017 DNH 068

The plaintiffs alleged that the defendant mishandled their mortgage, thereby forcing their property into foreclosure. The defendant moved for summary judgment on each of the plaintiffs’ remaining claims: 1) violations of 12 C.F.R. § 1024.38(b)(4); 2) negligent misrepresentation; and 3) breach of the covenant of good faith and fair dealing. The court granted the defendant’s motion in its entirety. At the hearing, plaintiffs’ counsel conceded that there was no private right of action under 12 C.F.R. § 1024.38(b)(4), and the court entered summary judgment on that claim on that basis. The court further concluded that the negligent misrepresentation claim was barred by the economic loss doctrine, and that, even if it were not, there was no evidence in the record from which a trier of fact could reasonably conclude that the defendant ever made a misrepresentation of material fact to the plaintiffs. The court further concluded that there was no dispute of material fact in the record sufficient to sustain the plaintiffs’ good faith and fair dealing claim. 18 pages. Magistrate Judge Andrea K. Johnstone.

Julius v. Wells Fargo Bank, N.A.
Case No. 16-cv-516-JL, Opinion No. 2017 DNH 084

In this action to enjoin foreclosure proceedings, the court, on the defendant’s motion, dismissed the plaintiff’s five-count complaint for failure to state a claim for relief. The court concluded, among other things, that (1) the provisions of the mortgage agreement and note did not grant the defendant such discretion as to support a claim for breach of the implied duty of good faith and fair dealing; (2) failure to plead a misrepresentation by the defendant and the economic loss doctrine barred plaintiff’s claim for negligent misrepresentation; (3) plaintiff’s hypothetical challenge to defendant’s standing to foreclose was barred; (4) the plaintiff failed to allege extreme and outrageous conduct on the defendant’s part so as to support a claim for intentional infliction of emotional distress; and (5) plaintiff’s allegations failed to support a claim under the Real Estate Settlement Procedure Act. 20 pages. Judge Joseph N. Laplante.

RULE 60(b)(3); NEW TRIAL

West v. Bell Helicopter Textron, Inc. et al.
Case No. 10-cv-214-JL, Opinion No. 2017 DNH 071

After a jury found in the defendants’ favor on his claims of negligence and strict products liability against them, arising out of an accident in a helicopter he was piloting, the plaintiff moved for a new trial and for relief from the resulting adverse judgment in light of discovery withheld by the defendants. The court granted that motion, finding that the defendants had not carried their burden of demonstrating that certain of these previously-withheld materials did not substantially interfere with preparation or presentation of the plaintiff’s case at trial. 30 pages. Judge Joseph N. Laplante.


Camp v. SSA
Case No. 16-cv-110-JL, Opinion No. 2017 DNH 047

On appeal from the Social Security Administration’s denial of the claimant’s application for a period of disability, and disability insurance benefits, the court denied the claimant’s motion to reverse the decision of the Administrative Law Judge (“ALJ”). The court concluded that the ALJ did not err in assessing the severity of the claimant’s alleged mental impairments. 15 pages. Judge Joseph N. Laplante.

Daly v. SSA
Case No. 16-cv-179-JL, Opinion No. 2017 DNH 085

Claimant sought Social Security disability benefits based on asymptomatic human immunodeficiency virus, chronic obstructive pulmonary disease, coronary artery disease, and right coronary artery status post stent insertion. An ALJ found that claimant was not disabled within the meaning of the Social Security Act because he has sufficient residual functional capacity to work at some of his former jobs with certain limitations. In support of reversal, the claimant argued that the ALJ failed to give proper weight to various medical opinions. The court affirmed the ALJ’s ruling, finding that the ALJ’s weighing of conflicting medical information was supported by substantial evidence. 12 pages. Judge Joseph N. Laplante.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer