U.S. Second Circuit: September 2009 Archives
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September 2009 Archives

Connecticut v. Am. Elec. Power Co., No. 05-5104

In an action seeking abatement of defendants' ongoing contributions to the public nuisance of global warming, the dismissal of the complaint is vacated where: 1) plaintiffs' claims did not present non-justiciable political questions; 2) plaintiffs had Article III standing to bring their claims; 3) plaintiffs stated claims under the federal common law of nuisance; 4) plaintiffs' claims were not displaced by the Clean Air Act; and 5) the discretionary function exception did not provide defendant Tennessee Valley Authority with immunity from suit.

Read Connecticut v. Am. Elec. Power Co., No. 05-5104

Appellate Information

Argued: June 7, 2006

Decided: September 21, 2009

Judges

Opinion by Judge Hall

Counsel

For Appellants:

Richard Blumenthal, Attorney General's Office, Hartford, CT

Peter Lehner, Bureau Chief, Environmental Protection Bureau of the State of New York, New York, NY

For Appellees:

Joseph R. Guerra, Angus Macbeth, and Thomas G. Echikson, Sidley Austin LLP, Washington, DC

Ladouceur v. Credit Lyonnais, No. 07-4040

In an ERISA action alleging a breach of fiduciary duty based on changes to an employee benefit plan, summary judgment for defendants is affirmed where oral promises cannot vary the terms of a written ERISA plan.

Read Ladouceur v. Credit Lyonnais, No. 07-4040

Appellate Information

Argued: April 7, 2009

Decided: September 30, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Pearl Zuchlewski, Kraus & Zuchlewski LLP, New York, NY

For Appellees:

Tracey A. TiskaHogan & Hartson LLP, New York, NY

Roberts v. Babkiewicz, No. 08-3858

In a 42 U.S.C. section 1983 action alleging malicious prosecution, dismissal of the action is reversed where it was unclear that the criminal charge against plaintiff that the state dropped was necessarily related to or arose from the same circumstances as the criminal offense to which plaintiff pleaded guilty, and thus it was unclear under Connecticut law whether the dismissal of the underlying criminal offense resulted in a "favorable termination."

Read Roberts v. Babkiewicz, No. 08-3858

Appellate Information

Argued: July 7, 2009

Decided: September 30, 2009

Judges

Per Curiam

Counsel

For Appellant:

John R. Williams, John R. Williams and Associates LLC, New Haven, CT

For Appellee:

Scott M. Karsten, Karsten, Dorman & Tallberg, LLC, West Hartford, CT

Murray v. Metro. Life Ins. Co., No. 09-3716

In an action alleging fraud in connection with the demutualization of defendant life insurance company, disqualification of defense counsel on the ground that it represented defendant in the underlying demutualization is reversed where: 1) the firm did not have an attorney-client relationship with the policyholders by virtue of its representation of defendant in the transaction; and 2) plaintiffs failed to establish that the purported violation of the witness-advocate rule in this case would warrant disqualification.

Read Murray v. Metro. Life Ins. Co., No. 09-3716

Appellate Information

Argued: September 3, 2009

Decided: September 29, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellants:

Teresa Wynn Roseborough, Kevin S. Finnegan and Duncan J. Logan, Metropolitan Life Insurance Company, New York, NY

For Appellees:

Jared B. Starnell and John C. Crow, Stamell & Schager, LLP, New York, NY

Doyle v. Am. Home Prods. Corp., No. 08-2149

In a product liability action against a drug manufacturer, dismissal of the action as untimely is affirmed where a prior dismissal of an identical action in state court for failure to appear at a court conference constituted a dismissal "for neglect to prosecute" such that plaintiff could not avail himself of a six-month tolling provision under New York Civil Practice Law and Rules section 205(a).

Read Doyle v. Am. Home Prods. Corp., No. 08-2149

Appellate Information

Argued: July 15, 2009

Decided: September 29, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Todd C. Bank, Kew Gardens, New York, for Appellant.

For Appellees:

Lauren J. Elliot and Daniel J. Thomasch, Orrick, Herrington & Sutcliffe LLP, New York, New York

Dunlap v. Burge, No. 07-0592

In a robbery prosecution, grant of petitioner's habeas petition is reversed where the district court erred in failing to accord the deference required by 28 U.S.C. section 2254(d) to the state court's evaluation of the pretrial identification procedures used by the police.

Read Dunlap v. Burge, No. 07-0592

Appellate Information

Submitted: February 5, 2009

Decided: September 28, 2009

Judges

Opinion by Judge Stanceu

Counsel

For Appellant:

Sally Wasserman, New York, NY

For Appellee:

John Sergi, Janet DiFiore, Joseph M. Latino, and Anthony J. Servino, Westchester County District Attorney's Office, White Plains, NY

Bustamante v. Napolitano, No. 08-0990

In an Immigration and Nationality Act section 1447(b) action seeking to have the district court determine plaintiff's naturalization application, dismissal of the action as moot is reversed where only the district court has jurisdiction to determine a naturalization application when the applicant files a section 1447(b) petition, and thus the United States Citizenship and Immigration Services could not decide plaintiff's naturalization application after he filed a petition.

Read Bustamante v. Napolitano, No. 08-0990

Appellate Information

Argued: March 27, 2009

Decided: September 28, 2009

Judges

Opinion by Judge Pooler

Counsel

For Appellant:

Paul O'Dwyer, New York, NY

For Appellee:

David Bober and Sarah S. Normand, Assistant United States Attorneys, New York, NY

Jova v. Smith, No. 08-2816

In an action by prisoners claiming that defendant prison personnel infringed their right to practice their religion under the Religious Land Use and Institutionalized Persons Act, summary judgment for defendants is affirmed in part where the restrictions imposed on plaintiffs' practice were justified by powerful security and administrative interests, but reversed in part where defendants did not demonstrate that the religious/meatless alternative menu was the least restrictive means of furthering their compelling administrative interests.

Read Jova v. Smith, No. 08-2816

Appellate Information

Submitted: July 7, 2009

Decided: September 28, 2009

Judges

Per Curiam

Counsel

For Appellants:

Tyheem Y. Keesh and Jesus M. Jova, pro se, Wallkill, NY

For Appellees:

Julie S. Mereson, Assistant Solicitor General, and Barbara D. Underwood, Solicitor General, Albany, NY

In a petition to confirm a Swedish arbitral award against the government of Azerbaijan, dismissal of the petition for lack of jurisdiction is reversed where the district court erred by holding that foreign states and their agents are entitled to rights under the Due Process Clause.

Read Frontera Resources Azerbaijan Corp. v. State Oil Co. of Azerbaijan, No. 07-1815

Appellate Information

Argued: October 27, 2008

Decided: September 28, 2009

Judges

Opinion by Judge Walker

Counsel

For Appellant:

James E. Berger, Paul Hastings Janofsky & Walker, LLP, New York, NY

For Appellee:

John D. Winter, Patterson Belknap Webb & Tyler LLP, New York, NY

Caiozzo v. Koreman, No. 05-4002

In a 42 U.S.C. section 1983 action for deliberate indifference to a prisoner's medical needs, summary judgment for defendants is affirmed where the standard for analyzing a claim of deliberate indifference to the health or safety of a convicted prison inmate held in state custody as a violation of the right of the inmate to be free from cruel and unusual punishment under the Eighth Amendment is also applicable to claims brought by pretrial state detainees under the Due Process Clause of the Fourteenth Amendment, and there was no evidence in the record from which a reasonable juror could conclude in the affirmative.

Read Caiozzo v. Koreman, No. 05-4002

Appellate Information

Argued: October 24, 2008

Decided: September 22, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

Chad A. Jerome

For Appellee:

Timothy S. Brennan

Hernandez v. Coffey, No. 06-4246

In a 42 U.S.C. section 1983 action by a prisoner alleging that he was beaten by defendant corrections officers and denied medical treatment by defendant nurse, dismissal of the action is vacated where the district court erred in converting defendants' motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) to a motion for summary judgment and dismissing his case without first explaining the procedural requirements for responding to such a motion and the potential consequences of the motion, and without providing him an opportunity to take discovery and to submit evidence to respond to the motion.

Read Hernandez v. Coffey, No. 06-4246

Appellate Information

Argued: April 8, 2009

Decided: September 21, 2009

Judges

Opinion by Judge Leval

Counsel

For Appellant:

Linda Epstein, Hughes Hubbard & Reed LLP, New York, NY

Vilia B. Hayes, Hughes Hubbard & Reed LLP, New York, NY

For Appellees:

Richard O. Jackson, Assistant Solicitor General, New York, NY

Benjamin N. Gutman, Deputy Solicitor General, New York, NY

Lindsay v. Ass'n. of Prof'l. Flight Attendants, No. 08-4122

In a Railway Labor Act (RLA) action challenging the validity of a Restructuring Participation Agreement reached between plaintiff flight attendants' former employer and their union, summary judgment for defendants is affirmed where: 1) the relevant RLA provisions, 45 U.S.C. section 152, First and Seventh, do not provide a private cause of action; 2) the RLA preempted plaintiffs' state law claims; and 3) plaintiffs failed to adduce sufficient evidence of a material factual dispute on their fair representation claim to defeat summary judgment.

Read Lindsay v. Ass'n. of Prof'l. Flight Attendants, No. 08-4122

Appellate Information

Argued: July 6, 2009

Decided: September 21, 2009

Judges

Opinion by Judge Raggi

Counsel

For Appellants:

Emily M. Bass, Brooklyn, NY

Steven M. Nachman, New York, NY

For Appellees:

Stephen B. Moldof, Cohen, Weiss and Simon LLP, New York, NY

Michael L. Winston, Cohen, Weiss and Simon LLP, New York, NY

In re: Ames Dept. Stores, Inc., No. 07-1362

In an appeal from the district court's order affirming a bankruptcy court's order applying section 502(d) of the Bankruptcy Code to disallow a request for payment of administrative expenses until debtor's predecessor in interest returned a preferential transfer, the order is vacated where section 502(d) does not bar allowance of administrative expenses within the scope of section 503(b).

Read In re: Ames Dept. Stores, Inc., No. 07-1362

Appellate Information

Argued: August 29, 2008

Decided: September 18, 2009

Judges

Per Curiam

Counsel

For Appellant:

Robert J. Butler, Wiley Rein LLP, McLean, VA

Rebecca L. Saitta, Wiley Rein LLP, McLean, VA

For Appellee:

Martin J. Bienenstock, Weil, Gotshal & Manges LLP, New York, NY

Vasquez v. GMD Shipyard Corp., No. 08-4566

In a personal injury action based on a fall aboard a ship, judgment for defendant is affirmed primarily as the district court had admiralty jurisdiction because the alleged tort occurred on navigable waters and the activity giving rise to the incident had a substantial relationship to traditional maritime activity, such that the incident had a potentially disruptive influence on maritime commerce.

Read Vasquez v. GMD Shipyard Corp., No. 08-4566

Appellate Information

Argued: August 26, 2009

Decided: September 15, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Wendy Fleishman, Lieff, Cabraser, Heimann & Bernstein LLP, New York, NY

For Appellee:

Joseph E. Donat, Herzfeld & Rubin, P.C., New York, NY

John F. Gaffney, Herzfeld & Rubin, P.C., New York, NY

Santoso v. Holder, No. 07-4713

In a petition for review of the BIA's order denying petitioner's application for asylum, the petition is denied where the BIA adequately considered petitioner's claim that there was a pattern or practice of persecution of ethnic Chinese and Catholics in Indonesia, and its finding that no such pattern or practice existed was supported by substantial evidence.

Read Santoso v. Holder, No. 07-4713

Appellate Information

Argued: September 2, 2009

Decided: September 14, 2009

Judges

Per Curiam

Counsel

For Petitioner:

H. Raymond Fasano, Madeo & Fasano, New York, NY

For Respondent:

Collete J. Winston, Attorney, Office of Immigration Litigation, Washington, DC

Droz v. McCadden, No. 08-0241

In a 42 U.S.C. section 1983 action alleging a false arrest, denial of summary judgment based on qualified immunity to defendant-officer is reversed where he had arguable probable cause to arrest plaintiff for criminal contempt and probable cause to commence a criminal contempt proceeding against him.

Read Droz v. McCadden, No. 08-0241

Appellate Information

Argued: March 9, 2009

Decided: September 14, 2009

Judges

Per Curiam

Counsel

For Appellant:

Denise A. Hartman, Assistant Solicitor General, Albany, NY

For Appellee:

Edward Kopko, Wiggins & Kopko, LLP, Ithaca, NY

Constr. Indus. Employers Ass'n v. Local Union No. 210, No. 08-4647

In an appeal from the district court's order granting petitioners' motion to stay arbitration in a dispute arising under a collective bargaining agreement, the order is affirmed where the underlying dispute between petitioners and respondent union was jurisdictional, and the collective bargaining agreement at issue expressly provided that jurisdictional disputes were not subject to arbitration.

Read Constr. Indus. Employers Ass'n v. Local Union No. 210, No. 08-4647

Appellate Information

Argued: September 2, 2009

Decided: September 11, 2009

Judges

Per Curiam

Counsel

For Appellant:

Robert A. Doren, Bond, Schoeneck & King, PLLC, Buffalo, NY

For Appellee:

John A. Collins, New York, NY

Halpert v. Manhattan Apts., Inc., No. 07-4074

In an Age Discrimination in Employment Act action regarding a statement by a third party retained by defendant that plaintiff was too old for the position at issue, summary judgment for defendant is reversed where an employer may be held liable for discrimination by third parties, including independent contractors, that the employer authorizes to make hiring decisions on its behalf.

Read Halpert v. Manhattan Apts., Inc., No. 07-4074

Appellate Information

Argued: August 4, 2009

Decided: September 10, 2009

Judges

Per Curiam

Counsel

For Appellant:

Michael Halpert, New York, NY

For Appellee:

Louis R. Satriale, Jr., Gehring, Tatman & Satriale, LLC, New York, NY

Aulicino v. N.Y. City Dep't of Homeless Servs., No. 06-5605

In an action claiming that defendant denied plaintiff a promotion based on his race, summary judgment for defendant is reversed where: 1) the record reflected genuine issues of material fact with respect to the failure to promote claim; and 2) the district court, in applying the legal standard governing hostile work environment claims, failed to consider the record evidence in the light most favorable to the plaintiff.

Read Aulicino v. N.Y. City Dep't of Homeless Servs., No. 06-5605

Appellate Information

Argued: November 19, 2008

Decided: September 8, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

Arthur Z. Schwartz, Schwartz, Lichten & Bright, P.C., New York, NY

For Appellees:

Fay Ng, Corporation Counsel of the City of New York, New York, NY 

Pamela Seider Dolgow, Corporation Counsel of the City of New York, New York, NY

Hu v. Holder, No. 08-2998

In a petition for review of the BIA's order denying petitioner asylum, withholding of removal, and relief under the Convention Against Torture, and ordering petitioner's removal, the petition is granted where the IJ's adverse credibility determination was not supported by substantial evidence because it relied on a flawed fact-finding process, impermissible speculation, and flawed reasoning.

Read Hu v. Holder, No. 08-2998

Appellate Information

Argued: June 23, 2009

Decided: September 3, 2009

Judges

Per Curiam

Counsel

For Petitioner:

Gary J. Yerman, New York, NY

For Respondent:

Lynda A. Do, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC

ATSI Comms., Inc. v. Shaar Fund, No. 08-1815

In an appeal from an order imposing sanctions on three attorneys and their law firms pursuant to Fed. R. Civ. P. 11 and the mandatory sanctions provision of the Private Securities Litigation Reform Act of 1995, the order is affirmed to the extent that it imposed sanctions, where In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir. 2003) (Pennie) did not require the district court to find subjective bad faith before imposing sanctions.  However, because the concerns identified in Pennie remained relevant to assessing the "reasonableness" of an opposing party's fees under 15 U.S.C. section 78u-4(c)(3), the amount of the award is vacated and the case is remanded for further proceedings.

Read ATSI Comms., Inc. v. Shaar Fund, No. 08-1815

Appellate Information

Argued: July 6, 2009

Decided: September 2, 2009

Judges

Opinion by Chief Judge Jacobs

Counsel

For Appellants:

Thomas I. Sheridan, III, Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP, New York, NY

For Appellee:

Thorn Rosenthal, Cahill Gordon & Reindel LLP, New York, NY

Perriello v. Napolitano, No. 05-2868

In a petition for review of a BIA order finding petitioner ineligible for relief from removal, the petition is denied where: 1) petitioner did not establish prima facie eligibility for naturalization; and 2) he was barred from relief under Section 212(c) of the Immigration and Nationality Act by virtue of Section 511(a) of the Immigration Act of 1990, because he had been previously convicted of an aggravated felony.

Read Perriello v. Napolitano, No. 05-2868

Appellate Information

Filed September 1, 2009

Judges

Opinion by Chief Judge Jacobs

Counsel

For Petitioner:

Matthew L. Guadagno, Bretz & Coven LLP, New York, NY

Ruchi Thaker, Bretz & Coven LLP, New York, NY

For Respondents:

Natasha Oeltjen, Assistant United States Attorney, New York, NY

Sarah S. Normand, Assistant United States Attorney, New York, NY