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Bar News - June 21, 2017


US District Court Decision Listing

* Published

May 2017

CONTRACTS

5/17/17
Hooper, et al. v. Willey, et al.
Case No. 16-cv-44-JL, Ruling from the bench, no written opinion.

One defendant and counterclaim plaintiff in this misrepresentation action moved to amend his answer to assert counterclaims for breach of contract and civil conspiracy. Plaintiffs moved to dismiss the same counterclaims asserted by two other defendants. The court allowed the counterclaim for breach of contract but dismissed the civil conspiracy counterclaim absent any allegation of an underlying tort. Judge Joseph N. Laplante.


CREDIT REPORTING, CIVIL PROCEDURE, MOTIONS TO AMEND

5/26/17
Stacey Blake v. Equifax Information Services, LLC, et al.
Case No. 16-cv-398, Ruling from bench, no written opinion.

Claiming that corporate debts were being wrongly attributed to her personally, plaintiff sued several credit reporting agencies and American Express alleging that they violated the Fair Credit Reporting Act when they failed to properly investigate and remove negative – and allegedly erroneous – information from her credit history. Plaintiff moved to amend her Complaint to add claims of malicious prosecution and violation of New Hampshire’s Consumer Protection Act against American Express, which objected to the proposed amendment. In addition to the credit reporting allegations, plaintiff’s putative amendment also relied on the fact that summary judgment was granted in her favor in a state court collection action brought against her by American Express. Ruling from the bench after hearing argument, the court granted the motion to amend, finding that the proposed counts were sufficiently supported by factual allegations in the amended complaint. Judge Joseph N. Laplante.


EMPLOYMENT (FAIR LABOR STANDARDS ACT)

5/5/17
Katherine Frederick v. State of New Hampshire Department of Health and Human Services
Case No. 14–cv-403-SM, Opinion No. 2017 DNH 089

Plaintiff brought suit, advancing federal claims under Title VII and the Americans with Disabilities Act, as well as a claim for wrongful discharge under state law. Following the court’s dismissal of plaintiff’s Title VII claim, defendant moved for judgment on the pleadings, asserting immunity from suit under the Eleventh Amendment. Plaintiff objected, arguing that defendant had waived its Eleventh Amendment immunity by litigating the case on the merits. The court found that plaintiff failed to identify any particular act taken by the defendant that evinced an intent to waive its Constitutional immunity. The court granted defendant’s motion. 10 pages. Judge Steven J. McAuliffe.


INDEMNITY

5/5/17
Exeter Hospital, Inc. v. The American Registry of Radiologic Technologists; and Triage Staffing, Inc.
Case No. 14–cv-9-SM, Opinion No. 2017 DNH 090

Exeter Hospital moved the court to reconsider an order dismissing the hospital’s claim against Triage Staffing for contractual indemnity. The hospital argued that because it had plausibly alleged that it had “potential liability” to third parties (arising out of an outbreak of Hepatitis C), Triage Staffing was contractually obligated to indemnify it against those claims (which, said the hospital, it had already settled for a “reasonable” amount, prior to any lawsuits having been filed). The court denied that motion, noting that the third party claims against the hospital were facially meritless and, therefore, the hospital had not plausibly alleged that it had any “potential liability” to those claimants. Consequently, Triage Staffing’s indemnification obligation was not triggered. 12 pages. Judge Steven J. McAuliffe.


MALICIOUS PROSECUTION, CIVIL PROCEDURE, MOTIONS TO DISMISS

5/17/17
Matthew Zinicola v. Mott MacDonald, LLC et al.
Case No. 16-cv-542, Ruling from the bench, no written opinion.

Plaintiff was arrested for allegedly threatening a surveyor working on a locally controversial pipeline project. The charges were eventually dropped. Plaintiff sued the arresting authorities, the surveyor’s employer and the general contractor, alleging malicious prosecution, defamation, intentional infliction of emotional distress, violation of the New Hampshire Constitution and federal civil rights violations. The general contractor moved to dismiss under Fed. R. Civ. P. 12(b)(6), asserting that the Complaint failed to allege facts supporting the malicious prosecution, defamation and emotional distress counts lodged against it. Ruling from the bench after oral argument, the court denied the motion as to malicious prosecution and infliction of emotional distress, finding the allegations in the Complaint adequate to support those counts and that the issue of the general contractor’s responsibility could be better addressed at summary judgment. After a discussion of state law immunity doctrine, plaintiff agreed to withdraw the defamation count. Judge Joseph N. Laplante.


MORTGAGE

5/17/17
Fairon Brown, et al. v. Wells Fargo Home Mortgage, et al.
Case No. 16-cv-530-JL, Opinion No. 2017 DNH 094

In this mortgage-related action seeking post-foreclosure injunctive relief, the court dismissed the complaint, concluding, inter alia, the plaintiffs’ claims were substantially identical to those raised by the same plaintiffs against the same defendants in an earlier-filed action. 12 pages. Judge Joseph N. Laplante.


NEGLIGENCE

5/5/17
Jon W. Larochelle, Jr. v. N.H. Department of Corrections; Jennifer L. Goduti; Scott Harrington; and Michael McAlister
Case No. 14–cv-479-SM, Opinion No. 2017 DNH 091

While he was on parole and under the supervision of the New Hampshire Department of Corrections, Jon Larochelle claims his assigned alcohol and drug counselor coerced him into a sexual relationship, by threatening to send him back to prison and by plying him with drugs and alcohol. He claimed that various state defendants knew or should have known of that inappropriate sexual relationship and that they were negligent in failing to intervene. The court granted the state defendants’ motion for summary judgment, holding that plaintiff failed to point to any evidence suggesting the state defendants knew (or should have known) of plaintiff’s alleged clandestine relationship with his counselor prior to the date on which plaintiff made his claims public - at which time the defendants promptly began an investigation into those claims. 22 pages. Judge Steven J. McAuliffe.


REAL PROPERTY; FEDERAL RULES OF CIVIL PROCEDURE

5/19/17
Brown v. Baldi
Case No. 04-cv-466-PB, Opinion No. 2017 DNH 095

Plaintiffs sought a writ of scire facias to collect on a prior judgment against defendant. Defendant argued, in pertinent part, that no writ should issue because he did not own property potentially subject to a writ. The case centered on a piece of New Hampshire real property. Plaintiffs contended that a 2015 deed gave defendant an interest in the property; defendant contended that he received the interest in 1995 and deeded the interest to his wife in 2004, meaning the 2015 deed was essentially without effect. As a procedural matter, the court ruled that the Federal Rules of Civil Procedure do not allow writs of scire facias, but do provide for writs of execution pursuant to state procedure. Under the circumstances before the court, New Hampshire law allows for a writ of execution upon scire facias. Substantively, the court ruled that the 2015 deed granted defendant an interest in the property. The court determined, however, that estoppel by deed may apply: defendant may not currently have an interest in the property because of the 2004 deed to his wife. The court ordered briefing on that issue. 7 pages. Judge Paul J. Barbadoro.


SECURITIES

5/4/17
Levy, et al. v. Gutierrez, et al.
Case No. 14-cv-443, Opinion No. 2017 DNH 086

Proposed securities class action filed against officers, directors and underwriters of now-bankrupt corporation, alleging that they made various false and misleading statements in connection with securities offerings made shortly after the announcement of a potentially lucrative contract with Apple, which was also named a defendant. Complaint alleges that statements were made even though defendants knew that the company was unable to comply with its obligations under the contract, in violation of the Securities Act and the Exchange Act. All defendants filed motions to dismiss. The court granted the motion in part with respect to certain counts and certain officers, and with respect to one count against the directors. The motion was denied without prejudice as to the underwriter defendants. Apple’s motion to dismiss was granted in part. 77 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY

5/8/17
Charles P. Robinson v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Case No. 16–cv-420-SM, Opinion No. 2017 DNH 092

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying her application for Supplemental Security Income. Claimant argued that the ALJ erred by failing to determine the onset date of his disability pursuant to Social Security Ruling 83-20. The court agreed, finding that the determined onset date of claimant’s shoulder impairment was not supported by the medical evidence. The court remanded on that basis. 24 pages. Judge Steven J. McAuliffe.


5/23/17
Richard Paul Meldrem v. US Social Security Administration, Acting Commissioner
Case No. 16-cv-156-JL, Opinion No. 2017 DNH 096

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 granted the claimant’s motion to reverse the decision of the Administrative Law Judge (“ALJ”). The court concluded that the ALJ erred in according substantial weight to the opinion of a state-agency physician who did not review a portion of the record, where the ALJ did not determine whether the medical evidence postdating the reviewer’s assessment was consistent with the reviewer’s assessment. 8 pages. Judge Joseph N. Laplante.


5/25/17
Mary Moore v. US Social Security Administration, Acting Commissioner, Nancy A. Berryhill
Case No. 16-cv-365-PB, Opinion No. 2017 DNH 099

Claimant appealed the Social Security Administration’s decision to deny her claim for Supplemental Security Income. The court explained that the claimant did not waive her challenge to the ALJ’s lifting-capacity determination by not raising it at a limited remand hearing because her ability to lift was placed squarely at issue during the full hearing. On the merits, the court held that the ALJ did not adequately explain his lifting capacity determination, support it with substantial evidence, or engage with conflicts in the evidence. On that basis, the court remanded to the ALJ. 18 pages. Judge Paul J. Barbadoro.

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