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Bar News - October 18, 2017


US District Court Decision Listing

* Published

September 2017

AMERICANS WITH DISABILITIES ACT; VICARIOUS LIABILITY

9/18/17
Fortin v. Hollis-Brookline School District
Case No. 15-cv-179-JL, Opinion No. 2017 DNH 193*

In this disability-discrimination action brought by parents of an autistic student after his paraprofessional engaged in assaultive conduct against him, the court granted the school district’s motion for summary judgment in part and denied it in part. The court concluded that the school district may not be held directly liable under Title II of the ADA for its employee’s actions under a deliberate indifference standard absent knowledge that those actions occurred. It may, however, be held vicariously liable for its employee’s actions under Title II of the ADA if the employee acted with deliberate indifference -- an issue subject to disputes of material fact. 21 pages. Judge Joseph N. Laplante.


BREACH OF CONTRACT; NEGLIGENCE

9/6/17
Sears, Roebuck & Co., et al. v. W/S Lebanon, et al.
Case No. 14-cv-422-JL, Opinion No. 2017 DNH 185

Plaintiffs Sears and Kmart brought claims for negligence and breach of contract against their respective landlords and property managers arising out of flood damage following a hurricane. The court granted Kmart’s property managers’ motions for summary judgment on Kmart’s breach of contract claims against them, finding no privity of contract between those parties and that Kmart was not a third-party beneficiary of the property managers’ agreements with the landlord. Finding that the property managers owed no common-law duty of care to Kmart, the court also granted their motion for summary judgment on Kmart’s negligence claims. From the bench, the court granted-in-part and denied-in-part a summary judgment motion filed jointly by both landlords and Sears’s property managers, and denied the plaintiffs’ motion for summary judgment. Finding that Sears’s promissory estoppel claim arose from the contractual relationship between Sears and its landlord, the court granted summary judgment on that claim. Disputes of material fact, including as to the severity of the storm, how to measure its severity, and whether it was the sole proximate cause of the damage precluded summary judgment that the damage resulted from an “Act of God” rather than the defendants’ breach of contract or negligence. Finally, factual disputes concerning the terms of the leases and what the parties intended by those terms precluded summary judgment on the plaintiffs’ breach of contract claims. 17 pages. Judge Joseph N. Laplante.


CIVIL PROCEDURE; JOINDER

9/28/17
Kevin Spencer, et al. v. Eversource Energy Service Co.
Case No. 16-cv-353-JL, Opinion No. 2017 DNH 212

Claiming that the proponents of the Northern Pass project were violating the terms of an easement across their property, plaintiffs sued a corporate entity that provides certain services to the project proponents, but did not sue the owner or lessor of the easement. Finding that both the owner and lessor were required and indispensable parties, and that joinder was not feasible because the absent parties would have destroyed the court’s diversity jurisdiction, the court granted defendant’s motion to dismiss for failure to join, pursuant to Fed. R. Civ. P. 12(b)(7) and 19. 21 pages. Judge Joseph N. Laplante.


CIVIL RIGHTS; EQUAL PROTECTION; QUALIFIED IMMUNITY

9/27/17
Sargent v. Town of Hudson
Case No. 14-cv-509-AJ, Opinion No. 2017 DNH 210

In an action removed from the superior court, plaintiff alleged that her former employer, the Hudson Police Department (“HPD”), treated her reports of domestic violence differently than those made by other women solely because her abuser was a police officer in a neighboring town. She brought a gross negligence claim against the Town of Hudson and three HPD officers under a state statute and a “class-of-one” equal-protection claim against the three officers (“individual defendants”) under 42 U.S.C. § 1983. Defendants moved for summary judgment. Plaintiff objected, but also asked the court to certify two questions to the NHSC with respect to her state-law claim. The court granted the motion for summary judgment on the federal claim, concluding that the individual defendants were entitled to qualified immunity. Specifically, the court concluded that plaintiff had failed to demonstrate that the individual defendants’ conduct violated a clearly established constitutional or statutory right. The court remanded the state claim to the superior court, concluding that plaintiff had raised issues in her motion to certify that were more appropriately addressed by the state court in the first instance. 32 pages. Magistrate Judge Andrea K. Johnstone.


CLEAN WATER ACT

9/26/17
Conservation Law Foundation, Inc. v Pease Development Authority, et al.
Case No. 16–cv-493-SM, Opinion No. 2017 DNH 202

Plaintiff brought this action under the citizen suit provision of the Clean Water Act, alleging that defendants are discharging pollutants into the waters of the United States without the proper permit. Defendants moved to dismiss under Federal Rules 12(b)(1) and 12(b)(6), arguing: (1) they are immune from suit under the Eleventh Amendment; (2) plaintiff lacks standing; and (3) plaintiff’s claims fail as a matter of law. The court agreed that the Pease Development Authority was immune from suit under the Eleventh Amendment, but found that the majority of plaintiff’s claims against the individual defendants fell within the Ex parte Young exception to state sovereign immunity. The court further found that plaintiff’s allegations were sufficient to confer standing - at least at the motion to dismiss stage. Finally, the court found defendants’ 12(b)(6) arguments unpersuasive, and their assertion of the “permit shield defense” premature, given the early stage of the litigation. 52 pages. Judge Steven J. McAuliffe.


DEFAMATION; PERSONAL JURISDICTION

9/8/17
Scottsdale Capital Advisors Corp., et al. v. The Deal, LLC, et al.
Case No. 16-cv-545-JL, Opinion No. 2017 DNH 186

The court granted the defendants’ motion to dismiss for lack of personal jurisdiction in this defamation action. The plaintiffs failed to establish the defendants’ minimum contacts with New Hampshire required under the Fourteenth Amendment’s due process clause. Among other things, the plaintiffs’ claims were not sufficiently related to the defendants’ New Hampshire-based activities when discovery demonstrated that no person in New Hampshire read the articles containing the allegedly-defamatory statements. 25 pages. Judge Joseph N. Laplante.


EMPLOYMENT

9/6/17
Censabella v. Town of Weare
Case No. 16-cv-490-AJ, Opinion No. 2017 DNH 181

A former employee of the Weare Police Department (“WPD”) brought a ten-count action generally alleging that various WPD employees and members of the Weare Board of Selectmen were complicit in a conspiracy that ultimately resulted in her termination. One defendant, named in seven of the ten counts, moved to dismiss for failure to state a claim. The court granted the motion on six of the seven counts, concluding that plaintiff had not plausibly alleged causes of action against the movant on any of those counts. The court denied the motion on plaintiff’s count under RSA 354-A, concluding that plaintiff’s failure to name the movant in her New Hampshire Commission for Human Rights charge of discrimination did not categorically bar her from bringing a subsequent cause of action against the movant under RSA 353-A. 18 pages. Magistrate Judge Andrea K. Johnstone.


9/7/16
Censabella v. Town of Weare
Case No. 16-cv-490-AJ, Opinion No. 2017 DNH 182

This is the same case addressed in Opinion No. 2017 DNH 181. Another defendant, named in the same seven counts as the defendant in that opinion, moved to dismiss for failure to state a claim. The court granted the motion on five counts and denied it on the RSA 354-A count for largely the same reasons stated in Opinion No. 2017 DNH 181. Unlike in that opinion, however, the court also denied the movant’s motion with respect to plaintiff’s intentional infliction of emotional distress claim, concluding that plaintiff had minimally pleaded that claim such that it could survive dismissal. 15 pages. Magistrate Judge Andrea K. Johnstone.


EMPLOYMENT; TITLE VI

8/18/17
Reyes-Caparrós v. Sessions
Case No. 15-cv-2229 (District of Puerto Rico). No written opinion. Order issued from bench.

The defendant in this employment action, the United States Attorney’s Office for the District of Puerto Rico, moved for summary judgment, arguing that (1) the plaintiff, a former employee, did not engage in perceived protected activity prior to filing a complaint with the Equal Employment Opportunity Office of the Department of Justice and (2) his superiors took no adverse employment actions against him after he filed his complaint. The court denied the defendant’s motion from the bench, concluding, among other things, that the plaintiff raised issues of material fact as to whether, viewed in its totality, his superiors’ conduct following his EEO complaint amounted to adverse employment action against him.


FEDERAL TORT CLAIMS ACT

9/21/17
Joseph S. Hajdusek v. United States of America
Case No. 16–cv-340-SM, Opinion No. 2017 DNH 198

Plaintiff, a member of the United States Marine Corps Delayed Entry Program (essentially an orientation and physical training program to prepare recruits for the demands of basic training), suffered severe injuries following a high-intensity workout that he says he was forced to perform under “dangerous conditions” and without adequate breaks for hydration. He brought this action against the United States under the Federal Tort Claims Act, asserting that his injuries were proximately caused by the negligence of his trainer. The government moved to dismiss, asserting that plaintiff’s claim is barred by the “discretionary function” exception to the FTCA. The court granted the government’s motion, concluding the trainer’s conduct in creating and overseeing plaintiff’s workout was “discretionary” and involved the type of policy-based decision-making that the exception is designed to protect. 21 pages. Judge Steven J. McAuliffe.


FIRST AMENDMENT

9/7/17
Theresa M. Petrello v. City of Manchester et al.
Case No. 16-cv-008-LM, Opinion No. 2017 DNH 173

The plaintiff brought suit against the City of Manchester and a Manchester Police Officer, challenging her charge of disorderly conduct based on her panhandling activity, and challenging a Manchester ordinance making it unlawful to distribute items to or receive items from the occupant of a car located on a public road. The plaintiff alleged violations of her First, Fourth, and Fourteenth Amendment rights, and the parties cross-moved for summary judgment. The court granted in part the defendants’ motion, holding that their conduct did not violate the plaintiff’s Fourth or Fourteenth Amendment rights. The court, however, denied the defendants’ motion as to the plaintiff’s First Amendment claims, and granted the plaintiff’s motion as those claims. The court held that the officer’s act of charging the plaintiff with disorderly conduct based on her panhandling activity and the Manchester ordinance violated the plaintiff’s First Amendment rights. 65 pages. Judge Landya McCafferty.


MOTION TO AMEND JUDGMENT

9/6/17
Jennifer Lizzol; Michael Lizzol; and T.G. v. Brothers Property Management Corporation; Out Back Kayak, Inc. OBK; and Martin Welch
Case No. 15–cv-100-SM, Opinion No. 2017 DNH 183

Plaintiffs moved to amend or alter the judgment that was entered dismissing their negligence claims based upon contractual waivers they signed. Prior to participating in a snowmobile tour, plaintiffs executed contractual waivers of negligence claims. During that tour, their snowmobile left the trail and they were injured. In support of their motion, plaintiffs asserted that those contractual waivers were unenforceable on public policy grounds. Additionally, plaintiffs claimed that defendants breached the implied covenant of good faith and fair dealing by acting “recklessly.” The court disagreed and denied the motion. 20 pages. Judge Steven J. McAuliffe.


QUALIFIED IMMUNITY; STATE OFFICIAL IMMUNITY

9/5/17
Rand v. Lavoie
Case No. 14-cv-570-PB, Opinion No. 2017 DNH 177

After a state police officer shot and killed a woman in her own vehicle, the decedent’s estate brought a § 1983 claim for excessive force in violation of the Fourth Amendment and sought damages under a state wrongful death statute. After discovery closed, the officer moved for summary judgment on the basis of qualified immunity under federal law and official immunity under state law. The estate argued that summary judgment was inappropriate because there was a genuine dispute as to whether the woman’s vehicle was stationary at the time of the shooting. According to the estate, even if the vehicle were moving, a genuine dispute still precluded summary judgment. The court agreed. The estate had marshalled sufficient evidence for a jury to conclude that the woman’s vehicle was stationary. Neither qualified nor official immunity would attach under those circumstances. Alternatively, if the vehicle were moving towards the officer, a jury could still could conclude that the officer violated a clearly established Fourth Amendment right and that the officer acted recklessly or wantonly with respect to the lawfulness of his actions. 31 pages. Judge Paul J. Barbadoro.


REMOVAL

9/3/17
League of Women Voters of New Hampshire, et al. v. New Hampshire Secretary of State, et al.
Case No. 17-cv-395-JL, Opinion No. 2017 DNH 174

9/3/17
New Hampshire Democratic Party v. New Hampshire Secretary of State, et al.
Case No. 17-cv-396-JL, Opinion No. 2017 DNH 174

The court remanded this action challenging the constitutionality of recently-enacted Senate Bill 3, which had been removed from state court, after the plaintiffs amended their complaints to withdraw any claims under the United States Constitution, leaving only claims under the New Hampshire Constitution. The court declined to exercise supplemental jurisdiction over the state-law claims given the withdrawal of claims over which it federal-question jurisdiction and the early stage of the litigation. It further rejected the defendants’ argument that federal law “preempts” the standard under which a New Hampshire court interprets the New Hampshire Constitution. 12 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY

9/6/17
Herbert v. Nancy Berryhill, Acting Commissioner, Social Security Administration
Case No. 16-cv-392-PB, Opinion No. 2017 DNH 176

Claimant appealed the Social Security Commissioner’s denial of his application for disability insurance benefits and supplemental security income. He argued that the Administrative Law Judge (“ALJ”) erred in determining that his residual functional capacity (“RFC”) allowed him to do light work because (1) the ALJ failed to properly evaluate evidence of his anxiety disorder, (2) the ALJ failed to properly consider evidence of his physical pain, and (3) the ALJ failed to consider the effect that the combination of both his physical pain and anxiety disorder had on his ability to work. The court found that substantial evidence supported the ALJ’s RFC finding that the claimant could do light work and accordingly affirmed the Commissioner’s ruling. 20 pages. Judge Paul J. Barbadoro.


9/15/17
Crandlemere v. Nancy Berryhill, Acting Commissioner, Social Security Administration
Case No. 15-cv-516-JL, Opinion No. 2017 DNH 192

In this appeal from a denial of Social Security disability insurance benefits, the case was remanded because the ALJ did not give good reasons for his decision not to give controlling weight to the opinion of a treating source, did not give good reasons for giving that opinion only “lesser weight,” and gave reasons for giving substantial weight to the opinion of a non-treating, non-examining source that were not supported by substantial evidence. 28 pages. Judge Joseph N. Laplante.

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