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Bar News - September 20, 2017


US District Court Decision Listing

* Published

August 2017

ARBITRATION AGREEMENTS

8/9/17
Rex Landry v. Time Warner Cable, Inc., and Thompson Reuters Corporation
Case No. 16–cv-507-SM, Opinion No. 2017 DNH 152

Plaintiff brought this action against his former employer, Time Warner, advancing various employment-related causes of action. Time Warner moved to compel arbitration, invoking an arbitration clause in plaintiff’s employment contract. In opposition, plaintiff raised three arguments, asserting that: he failed to properly execute the arbitration agreement; the agreement is unconscionable and, therefore, unenforceable; and the obligation to mediate represents an unlawful restraint on protected activity under the National Labor Relations Act. The court rejected the first two arguments. But, as to the third, the court noted that the Supreme Court has granted certiorari in a case to resolve that very question. Accordingly, the court deferred ruling on plaintiff’s third argument until after the Supreme Court has spoken. 18 pages. Judge Steven J. McAuliffe.


CLEAN WATER ACT

8/22/17
Pitroff, et al. v. United States, et al.
Case No. 16-cv-522-PB, Opinion No. 2017 DNH 158

Plaintiffs filed a “citizens suit” against the City of Portsmouth, the State of New Hampshire, and the United States for violating the Clean Water Act. Defendants moved to dismiss. The court granted the motion because the United States is diligently prosecuting the same violations and plaintiffs failed to identify any failure by the Administrator of the Environmental Protection Agency to perform a duty made mandatory under the Clean Water Act. 24 pages. Judge Paul J. Barbadoro.


CRIMINAL LAW; SPOUSAL PRIVILEGE

8/8/17
United States v. Yovannys Guerrero Tejeda, et al.
Case No. 15-cr-215-01/02-JL, Opinion No. 2017 DNH 149*

In this possession and distribution case, the prosecution sought to introduce the testimony of one defendant against her co-defendant husband. She moved to quash the subpoena, asserting the adverse spousal testimonial privilege. The court granted her motion, concluding that the substantial weight of authority impressed against recognizing an exception to the privilege when both spouses participated in the charged criminal activity. 19 pages. Judge Joseph N. Laplante.


DIVERSITY CITIZENSHIP JURISDICTION

8/30/17
Martha Soderman v. Shaw’s Supermarkets, Inc., et al.
Case No. 17-cv-076-PB, Opinion No. 2017 DNH 165

Plaintiff moved to remand her state-law age discrimination claims against Shaw’s Supermarkets, Inc. and her supervisor to state court, arguing that there was no diversity jurisdiction because she is a citizen of the same state as the supervisor. Defendants objected. They argued that the supervisor’s citizenship should be disregarded for purposes of jurisdiction because he was fraudulently joined, reasoning that the claim against him must fail because plaintiff failed to exhaust her administrative remedies. The court held that the supervisor was not fraudulently joined because there was a reasonable possibility that the New Hampshire Supreme Court would find that a futility exception to the administrative exhaustion requirement would apply and the state court complaint pled a viable claim against the supervisor. 12 pages. Judge Paul J. Barbadoro.


EMPLOYMENT

8/29/17
Gould, et al. v First Student Mgt., LLC
Case No. 16-cv-359-PB, Opinion No. 2017 DNH 161

Plaintiff bus drivers and driver assistants filed a class action alleging that their employer failed to pay wages due under the Fair Labor Standards Act (“FLSA”) and state law. The employer moved to dismiss. The court held that plaintiffs’ “overtime gap time” theory was not cognizable under the FLSA, and the overtime claims were inadequately pled. The court also held that the state law claim for unpaid wages at a regular rate of pay was adequately pled. 22 pages. Judge Paul J. Barbadoro.


EMPLOYMENT - BREACH OF CONTRACT

8/9/17
Stephen Gately v. Mortara Instrument, Inc.
Case No. 17–cv-100-SM, Opinion No. 2017 DNH 154

Plaintiff filed suit, asserting multiple claims arising out of his employment by the defendant. Defendant moved to dismiss plaintiff’s claims for breach of contract, promissory estoppel, and violation of the New Hampshire Consumer Protection Act (“CPA”). The court granted defendant’s motion with respect to plaintiff’s breach of contract claim because plaintiff had not pled facts sufficient to undermine the presumption that plaintiff’s employment was “at-will.” The court then denied defendant’s motion with respect to plaintiff’s promissory estoppel and CPA claims. 25 pages. Judge Steven J. McAuliffe.


EMPLOYMENT DISCRIMINATION - SUCCESSOR LIABILITY

8/22/17
Patricia Kratz v. Richard J. Boudreau & Associates, LLC, and Schlee and Stillman, LLC
Case No. 15–cv-232-SM, Opinion No. 2017 DNH 153

Plaintiff asserted claims under Title VII and N.H. RSA 354-A for sexual harassment and retaliation against her former employer, Richard J. Boudreau & Associates, LLC, (“RJBA”). She also asserted identical claims against Schlee and Stillman, LLC, which had purchased all of RJBA’s assets, as a “successor” to RJBA. Schlee and Stillman moved for summary judgment, arguing that it could not be held liable as a successor employer because it did not know about plaintiff’s claims before the asset purchase. The court denied defendant’s motion, finding that a reasonable jury could conclude that Schlee and Stillman had constructive notice of plaintiff’s pending employment-related claims when it acquired the assets of RJBA. 28 pages. Judge Steven J. McAuliffe.


FAIR CREDIT REPORTING ACT

8/9/17
Rex Landry v. Time Warner Cable, Inc., and Thompson Reuters Corporation
Case No. 16–cv-507-SM, Opinion No. 2017 DNH 151

Plaintiff filed this putative class action against his former employer and Thompson Reuters, alleging violations of the Fair Credit Reporting Act, to include the reporting of false and outdated information on a credit report Reuters provided to the employer. Reuters moved to dismiss, alleging that the only “outdated” information provided in its report (i.e., information that was more than seven years old) related to a criminal conviction, which is expressly permitted by the statute. The court disagreed, holding that plaintiff’s complaint adequately alleged that other outdated (and false) information was impermissibly included in that report. The court also rejected Reuter’s claim that the complaint failed to adequately allege that Reuters acted “willfully.” Motion to dismiss denied. 10 pages. Judge Steven J. McAuliffe.


HABEAS CORPUS

8/30/17
Beatrice Munyenyezi v. United States of America
Case No. 16–cv-402-SM, Opinion No. 2017 DNH 171

Petitioner was convicted by a jury of unlawfully procuring citizenship or naturalization. In her petition for habeas corpus, she asserted that constitutionally deficient representation by her trial counsel (in several respects) and prosecutorial misconduct (in the form of the government’s failure to disclose exculpatory evidence prior to trial) entitled her to a new trial. The court considered, but rejected, each of petitioner’s claims and denied her motion for habeas corpus relief. 7 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY DISABILITY

8/21/17
Baron v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Case No. 16-cv-308-JL, Opinion No. 2017 DNH 156

In this appeal from a denial of Social Security disability insurance benefits and supplemental security income, the ALJ’s decision to deny benefits was affirmed because substantial evidence supported the ALJ’s determination that neither the claimant’s scoliosis nor her mental impairments qualified as severe at step 2 of the sequential evaluation process. 32 pages. Judge Joseph N. Laplante.


8/22/17
Tina Robinson v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Case No. 16–cv-347-SM, Opinion No. 2017 DNH 160

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying her applications for Disability Insurance Benefits and Supplemental Security Income Benefits. Claimant argued that the ALJ erred by failing to give appropriate weight to the opinions of her treating physician (or by failing to adequately explain why he did not give those opinions greater weight). The court agreed, concluding that the ALJ did not adequately explain his reasons for substantially discounting the opinions of claimant’s treating physician, particularly as they relate to the seemingly disabling symptoms of her fibromyalgia. Motion to vacate and remand granted. 16 pages. Judge Steven J. McAuliffe.


8/24/17
Arsenault v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Case No. 16-cv-386-JL, Opinion No. 2017 DNH 162

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 relying on SSR 82-59 in light of record evidence that the claimant delayed a requested treatment, not one prescribed by her treating physician. 7 pages. Judge Joseph N. Laplante.


8/25/17
Grenier v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Case No. 16-cv-210-JL, Opinion No. 2017 DNH 163

In this appeal from a denial of Social Security disability insurance benefits and supplemental security income, the case was remanded with instructions to award benefits because the ALJ gave insufficient reasons for discounting the opinion of an examining source and because there was no evidence in the record to support the ALJ’s decision not to include a limitation in the claimant’s residual functional capacity that, according to testimony from a vocational expert, would preclude all employment. 23 pages. Judge Joseph N. Laplante.


8/28/17
Briand v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Case No. 16-cv-313-PB, Opinion No. 2017 DNH 159

Plaintiff appealed the Social Security Administration’s decision to deny her claims for Supplemental Security Income and Disability Insurance Benefits. The court held that the ALJ committed reversible error in formulating plaintiff’s residual functional capacity when the ALJ omitted a limitation that was identified in an uncontroverted medical opinion. Accordingly, the court remanded to the ALJ for further administrative proceedings. 12 pages. Judge Paul J. Barbadoro.


8/30/17
Prudence Louise Schwarz v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Case No. 16–cv-163-SM, Opinion No. 2017 DNH 167

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying her applications for Disability Insurance Benefits and Supplemental Security Income Benefits. Claimant argued that the ALJ erred: (1) by failing to give substantial weight to her treating physician’s opinion that she could only “rarely” reach in any direction; and (2) by concluding, without the benefit of a supporting medical opinion, that she could grasp and handle objects for up to two-thirds of a workday. The court disagreed and concluded that the ALJ’s determination of claimant’s RFC was supported by substantial evidence in the medical record. Claimant’s motion to remand denied. 21 pages. Judge Steven J. McAuliffe.

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