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Bar News - August 16, 2017


US District Court Decision Listing

* Published

June and July 2017

CONTRACT; TORT

7/5/17
New Hampshire Electrical Cooperative, Inc. v. Elster Solutions, LLC, et al.
Case No. 16-cv-440-PB, Opinion No. 2017 DNH 131

Plaintiff brought a number of claims sounding primarily in breach of contract and misrepresentation. Plaintiff had purchased a number of “smart” electrical meters and associated services from the principal defendant, but the meters allegedly failed at an unacceptably high rate. The defendants moved to dismiss plaintiff’s complaint for failure to state a claim. In large part, the court denied the defendants’ motion. The plaintiff had adequately pleaded a breach of contract claim, because it had alleged that each meter contained a defect and those defects resulted in the loss of functionality. Plaintiff’s misrepresentation claims satisfied the requirements of Federal Rule of Civil Procedure 9(b) and were not precluded by the economic loss doctrine. Further, a misrepresentation claim grounded in the New Hampshire Consumer Protection Act did not fall within an exception to the Act. Finally, the court narrowed, but did not dismiss, claims based on unjust enrichment and the implied covenant of good faith and fair dealing. 21 pages. Judge Paul J. Barbadoro.


CRIMINAL LAW; CONSTITUTIONAL LAW

7/7/17
United States v. David Ackell
Case No. 15-cr-123-01-JL, Opinion No. 2017 DNH 133P*

Convicted of stalking after a four-day jury trial, the defendant moved for judgment of acquittal and for a new trial. The court denied both motions, concluding that: (1) the statute under which the defendant was convicted, 18 U.S.C. § 2261A(2)(B), was not unconstitutionally broad on its face or as applied to the defendant; (2) the evidence presented at trial would allow a reasonable factfinder to conclude that the defendant used facilities of interstate commerce to engage in a course of conduct, with the requisite intent, which either caused or reasonably would have been expected to cause substantial emotional distress to the victim; and (3) the defendant’s Sixth Amendment right to a public trial was not violated. 50 pages. Judge Joseph N. Laplante.


CRIMINAL LAW; SUPPRESSION

6/26/17
United States v. Morel
Case No. 14-cr-148-JL, Opinion No. 2017 DNH 128

The defendant moved the court to reconsider its decision denying his motion to suppress evidence. The court denied defendant’s motion, reiterating but refining its conclusion that a third-party’s provision of his IP address to NCMEC did not constitute a search in violation of the Fourth Amendment because the defendant lacked a reasonable expectation of privacy in his IP address. 9 pages. Judge Joseph N. Laplante.


DISCOVERY; PRIVILEGE

6/15/17
Reyes Caparrós v. Lynch
Case No. 3:15-cv-2229-JL (D.P.R.), Opinion No. 2017 DNH 122

The plaintiff in this employment action challenged the defendant’s withholding of documents under the attorney-client privilege, work product doctrine, and deliberative process privilege. After in camera review of the documents in question and the parties’ arguments, the court concluded that the attorney-client privilege protected a subset of the documents and ordered the remainder produced. On partial reconsideration, the court further found that the defendant had not waived the attorney-client privilege as to any of the challenged documents. 28 pages. Judge Joseph N. Laplante.


MORTGAGE LAW; FORECLOSURE

7/26/17
Brown v. Wells Fargo Home Mortgage
Case No. 15-cv-467-JL, Opinion No. 2017 DNH 145

Defendants in this mortgage-related action moved for summary judgment on plaintiffs’ claims that they failed to comply with Regulation X promulgated under RESPA and Regulation B promulgated under the ECOA after plaintiffs made an application for a loan modification. The court granted the defendants’ motion, concluding that no genuine issue of material fact existed as to: (1) whether Wells Fargo complied with Regulation X in connection with an earlier loan modification application, thus relieving it of the obligation to comply with respect to the plaintiffs’ second application, or (2) whether Wells Fargo notified the plaintiffs of its action on their second modification application. 19 pages. Judge Joseph N. Laplante.


REAL PROPERTY

7/14/17
Ronald and Gail Brown v. John Baldi
Case No. 04-cv-466-PB, Opinion No. 2017 DNH 135

Plaintiffs sought a writ of scire facias against the defendant to collect on a previous judgment. After a hearing, the court directed the parties to address whether the defendant held an interest in a particular parcel of real property, which could be the subject of an execution. Following two rounds of briefing, the court determined that the defendant did not hold an interest in the parcel. In 2004, the defendant — then having no transferable interest in the parcel — purported to convey a fee simple interest, with warranty covenants, to his wife. When the defendant later acquired a joint-tenancy interest in the parcel, that interest immediately passed to his wife pursuant to the doctrine of estoppel by deed. Accordingly, the court declined to issue a writ of scire facias or a writ of execution. 10 pages. Judge Paul J. Barbadoro.

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