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Bar News - July 19, 2017


US District Court Decision Listing

* Published

June 2017

CONTRACTS

6/30/16
Joyal v. Daviduk
Case No. 16-cv-230-AJ, Opinion No. 2017 DNH 130

The plaintiff brought an action to collect on four promissory notes executed by the defendant in November 2010 and March 2011. The defendant counterclaimed for fraud and negligent misrepresentation. The plaintiff moved for summary judgment on his collection claim and the defendant’s counterclaims. The court granted the motion as to the counterclaims, finding that they were barred by the statute of limitations. The court also granted the motion as to the notes signed in November 2010, rejecting the defendant’s argument that a trier of fact could reasonably conclude that they had been satisfied by another transaction in which both parties were involved. The court denied the motion as to the March 2011 notes, however, finding there to be a genuine dispute of material fact as to whether the plaintiff fraudulently induced the defendant into signing those notes. The court further concluded that the notes contained ambiguous interest provisions, but declined to resolve which provision applied without further briefing. 25 pages. Magistrate Judge Andrea K. Johnstone.


CONTRACTS & EMPLOYMENT

6/19/17
Romano v. Site Acquisitions
Case No. 15-cv-384-AJ, Opinion No. 2017 DNH 124

The defendant contracted with a major telecommunication company to upgrade hardware on that company’s cellular network. The defendant employed “tower crews” to physically perform those upgrades on the cell towers. The telecommunications company initiated an incentive bonus program whereby it would pay up to a certain amount in bonuses per cell tower site if various conditions were met. The defendant held a meeting with the tower crews in May of 2013 and informed them of the bonus program. When the defendant paid out bonuses at the end of the year, the plaintiffs, who were tower crew members, believed that they did not receive the amount to which they were entitled under the incentive bonus program. They brought suit, alleging counts of breach of contract under a third-party beneficiary theory, promissory estoppel, unjust enrichment, and state and federal wage claims. The court granted the defendant’s motion for summary judgment on the third-party beneficiary and unjust enrichment claims, and on the promissory estoppel claim as to one plaintiff, but otherwise denied the motion. The court concluded that there was a genuine dispute of material fact as to what the defendant specifically said to the plaintiffs at the May 2013 meeting that precluded summary judgment on the remaining claims. 27 pages. Magistrate Judge Andrea K. Johnstone.


CONTRIBUTION

6/19/17
Knightly v. Gula
Case No. 16-cv-124-AJ, Opinion No. 2017 DNH 123

The defendants brought a third-party complaint for contribution in a personal injury case. The third-party defendant moved to dismiss, arguing that the third-party action was barred by RSA 507:7-g because the plaintiff did not consent to its filing. The defendants objected on the basis that Fed. R. Civ. P. 14(a), and not RSA 507:7-g, governs contribution actions in federal court. Noting a split of authority on this issue, the court concluded that Rule 14(a), when applied in this particular context, fell within the uncertain area between substantive and procedure that is rationally capable of classification as either. As the federal rule governs under such circumstances, the court denied the third-party defendant’s motion. 4 pages. Magistrate Judge Andrea K. Johnstone.


FRAUD & BREACH OF CONTRACT

6/12/17
Andrew Hall v. Lorettann Gascard and Nikolas Gascard
Case No. 16–cv-418-SM, Opinion No. 2017 DNH 110

Plaintiff is an art collector and brought this action against defendants, advancing claims of fraud, breach of contract, breach of warranty, unjust enrichment, and violation of New Hampshire’s Consumer Protection Act. Plaintiff asserts that he spent several hundred thousand dollars to purchase 24 works of fine art from defendants, either directly or indirectly through Sotheby’s and Christie’s auction houses. He claims that defendants represented that each was an original work produced by Leon Golub when, in fact, they knew that each was a forgery. Defendants moved to dismiss all of plaintiff’s claims, asserting that none stated a viable cause of action. With one exception, the court denied that motion, concluding that each claim adequately and plausibly alleges the essential elements of a viable cause of action. The court did dismiss plaintiff’s common law warranty claim (without objection), but allowed him to proceed on his warranty claims under the Uniform Commercial Code. 22 pages. Judge Steven J. McAuliffe.


INSURANCE

6/6/17
Fletch’s Sandblasting and Painting, Inc. v. Colony Insurance Company
Case No. 15-cv-490-PB, Opinion No. 2017 DNH 097

A subcontractor sought a declaratory judgment that it is entitled to coverage under a commercial general liability policy issued by its insurer. The court granted summary judgment for the insurer, holding that there was no “occurrence” under the policy for what amounted to a defective workmanship claim and that an exclusion applied. 13 pages. Judge Paul J. Barbadoro.


MUNICIPAL IMMUNITY

6/22/17
Martineau v. Antilus, et al.
Case No. 16-cv-541-LM, Opinion No. 2017 DNH 127

Plaintiff alleged that several corrections officers assaulted him in his cell while he was awaiting trial at the Hillsborough County Department of Corrections. Plaintiff sued Hillsborough County under 42 U.S.C. § 1983, alleging that the county maintained a policy or custom that caused a deprivation of his constitutional rights (Count III). Plaintiff also asserted two state law claims against the county, one based on respondeat superior for the corrections officers’ intentional torts (Count VI) and the other for negligent supervision, training, and retention (Count VII). Hillsborough County moved for judgment on the pleadings. The court denied defendant’s motion as to Count III because the complaint stated sufficient facts to allege a plausible claim for relief. The court granted defendant’s motion as to Count VII, holding that Hillsborough County was entitled to municipal immunity under RSA 507-B:5 because plaintiff’s injuries were unrelated to the physical premises of the jail (see RSA 507-B:2) and the county had not procured a liability insurance policy described in RSA 412 (see RSA 507-B:7-a). However, the court denied the defendant’s motion on Count VI, as RSA 507-B:5 provides municipalities with immunity from intentional tort claims only if the officers reasonably believed their conduct was lawful, which the record before the court did not suggest. 16 pages. Judge Landya McCafferty.


SOCIAL SECURITY

6/1/17
Gerald Ahola v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Case No. 16–cv-377-SM, Opinion No. 2017 DNH 100

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his applications for Disability Insurance Benefits and Supplemental Security Income Benefits. Claimant argued that the ALJ erred by failing to properly evaluate the medical evidence in assessing his residual functional capacity and by failing to properly account for his subjective complaints of pain. The court disagreed, concluding that the ALJ did not err in determining claimant’s RFC and holding that his assessment of claimant’s subjective complaints of pain was supported by substantial evidence in the medical record. 17 pages. Judge Steven J. McAuliffe.


6/20/17
Stephanie Andrews v. US Social Security Administration, Acting Commissioner, Nancy A. Berryhill
Case No. 16-cv-270-PB, Opinion No. 2017 DNH 115

Claimant appealed the Social Security Administration’s decision to deny her claim for Supplemental Security Income. The court affirmed. The court held that the Administrative Law Judge (ALJ) did not ignore a psychologist’s opinion. The court also held that the ALJ did not improperly use lay knowledge in evaluating the claimant’s residual functional capacity. 21 pages. Judge Paul J. Barbadoro.


6/21/17
Christine Floyd v. US Social Security Administration, Acting Commissioner, Nancy A. Berryhill
Case No. 15–cv-456-PB, Opinion No. 2017 DNH 114

Claimant appealed the Acting Commissioner’s decision to deny her claim for supplemental security income, arguing that the ALJ erred in formulating a residual functional capacity and in analyzing listed impairments. The court found no cause for remand. The ALJ supportably relied on opinion evidence, adequately considered claimant’s obsessive compulsive disorder, and committed no reversible error in assessing claimant’s credibility. With respect to the ALJ’s analysis of listed impairments, claimant did not direct the court to evidence suggesting she met a listed impairment. 23 pages. Judge Paul J. Barbadoro.


6/26/17
Gloria Gean Fischer v. US Social Security Administration, Acting Commissioner, Nancy A. Berryhill
Case No. 13–cv-463-PB, Opinion No. 2017 DNH 119

Claimant appealed the Acting Commissioner’s decision to deny her claim for disability insurance benefits. After the court remanded claimant’s case to the ALJ for failure to consult a medical expert as to the onset of disability, the Acting Commissioner appealed to the First Circuit Court of Appeals. The First Circuit determined that the ALJ would not be required to consult a medical expert, and remanded claimant’s case for consideration of her remaining claims. On remand, claimant argued, inter alia, that the ALJ failed to properly evaluate claimant’s chronic pain syndrome and credibility. The court concluded that the First Circuit’s opinion foreclosed claimant’s remaining claims and that, in any event, claimant’s primary arguments failed or had been waived. 11 pages. Judge Paul J. Barbadoro.


WRONGFUL TERMINATION

6/6/17
Alexandra Drake v. Town of New Boston, New Hampshire, et al.
Case No. 16–cv-470-SM, Opinion No. 2017 DNH 103 (Motion to Dismiss)

Plaintiff, a former police officer for the Town of New Boston Police Department, filed a multicount complaint against the Town of New Boston, its Chief of Police, and various municipal employees, advancing numerous state and federal claims arising out of her employment and termination. The Town of New Boston, its Chief of Police and the Selectmen moved to dismiss several of plaintiff’s claims against them. Plaintiff did not object to dismissal of her claims for defamation, negligent infliction of emotional distress, and violation of NH RSA 41:48. The court then determined that plaintiff had not stated a claim for civil conspiracy, intentional infliction of emotional distress, or for violation of Section 1983, and dismissed those claims. The court denied the defendants’ motion as to plaintiff’s claims for intentional interference with contractual relationship and prospective contractual relationship, and for violations of NH RSA 354-A, and NH RSA 98-E. 62 pages. Judge Steven J. McAuliffe.


6/6/17
Alexandra Drake v. Town of New Boston, New Hampshire, et al.
Case No. 16–cv-470-SM, Opinion No. 2017 DNH 106 (Motion for Judgment)

Plaintiff, a former police officer for the Town of New Boston Police Department, filed a multicount complaint against the Town of New Boston, and various municipal employees, including the Chief Deputy Sheriff of the Hillsborough County Sheriff’s Department, and New Boston Police Lieutenant Michael Masella, for claims arising out of her employment and termination. The Chief Deputy Sheriff moved for judgment on the pleadings as to all claims against him, including civil conspiracy, intentional interference with contractual relationship, violation of Section 1983, and violation of NH RSA 354-A. Lieutenant Masella also moved for judgment on the pleadings as to plaintiff’s Section 1983 claims against him. The court granted the Chief Deputy Sheriff’s motion as to plaintiff’s claims against him for civil conspiracy, intentional interference with contract, and violations of Section 1983, but denied the motion as to plaintiff’s NH RSA 354-A claim. The court granted Lieutenant Masella’s motion for judgment as to plaintiff’s Section 1983 claims against him. 15 pages. Judge Steven J. McAuliffe.

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