U.S. Second Circuit: January 2010 Archives
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January 2010 Archives

Bolarinwa v. Williams, No. 08-0832

In a murder prosecution, dismissal of petitioner's habeas petition as untimely is vacated where petitioner's mental illness could serve as a ground for equitable tolling of the one-year statute of limitations for filing habeas petitions prescribed by the Antiterrorism and Effective Death Penalty Act.

Read Bolarinwa v. Williams, No. 08-0832

Appellate Information

Argued: November 18, 2009

Decided: January 28, 2010

Judges

Opinion by Judge Katzmann

Counsel

For Appellant:

Theodore S. Green, Green & Willstatter, White Plains, NY

For Appellee:

Ashlyn Dannelly, Assistant Attorney General, New York, NY

US v. Rossi, No. 08-6108

In an insurance fraud prosecution, the district court's amended restitution order is affirmed where the provisions of the governing statute in this case, the Victim and Witness Protection Act of 1982, were complied with because, inter alia, the restitution order was imposed at the time that defendant was resentenced following the court of appeals' remand, and defendant did not show that she was prejudiced by the lapse of time preceding resentencing.

Read US v. Rossi, No. 08-6108

Appellate Information

Argued: November 18, 2009

Decided: January 28, 2010

Judges

Per Curiam

Counsel

For Appellant:

Richard Ware Levitt, Levitt & Kaizer, New York, NY

For Appellee:

Jesse M. Furman and Rebecca A. Rohr, Assistant United States Attorneys, New York, NY

Farid v. Ellen, No. 07-4057

In a prisoner's challenge to a prison's rules regarding contraband and smuggling as applied to a pamphlet he possessed, summary judgment for defendants is affirmed in part where plaintiff failed to administratively exhaust his claim regarding the confiscation of certain papers from his cell. However, the order is vacated in part where: 1) the rules at issue were unconstitutionally vague as applied to plaintiff, both because they failed to give him adequate notice and because they failed adequately to constrain the discretion of the prison officials who had the power to impose them; and 2) the right not to be punished under one set of rules for violations of another was clearly established.

Read Farid v. Ellen, No. 07-4057

Appellate Information

Argued: June 8, 2009

Decided: January 28, 2010

Judges

Opinion by Judge Calabresi

Counsel

For Appellant:

Meghann E. Donahue and Philip A. Irwin, Covington & Burling LLP, New York, NY

For Appellees:

Sasha Samberg-Champion and Michelle Aronowitz, Deputy Solicitor Generals, New York, NY

Hayden v. Pataki, No. 04-3886

In a Due Process and Equal Protection Clause challenge to New York's felon disenfranchisement laws, judgment on the pleadings for defendants is affirmed where: 1) plaintiffs' amended complaint failed to allege any facts as to discriminatory intent behind the legislature's adoption of the state constitutional provision at issue; and 2) there was a rational basis for the statutes' distinction between felons sentenced to incarceration or serving parole and those sentenced to probation.

Read Hayden v. Pataki, No. 04-3886

Appellate Information

Argued: October 26, 2007

Decided: January 28, 2010

Judges

Opinion by Judge Straub

Counsel

For Appellants:

Juan Cartagena, Risa Kaufman, Craig Acorn and Paul Keefe, Community Service Society of New York, New York, NY

For Appellees:

Benjamin N. Gutman and Michelle Aronowitz, Deputy Solicitor Generals, New York, NY

Keach v. Cty. of Schenectady, No. 09-1296

In an appeal from a district court's order denying plaintiff's motion to recuse the district judge, the appeal is dismissed where the district court merely engaged in routine judicial commentary and criticism of plaintiff's counsel, while declining to impose sanctions and making no findings of professional misconduct.

Read Keach v. Cty. of Schenectady, No. 09-1296

Appellate Information

Argued: January 14, 2010

Decided: January 28, 2010

Judges

Opinion by Judge Lynch

Counsel

For Appellant:

Joh R. Supple, Hinshaw & Culbertson LLP, New York, NY

For Appellees:

Jonathan M. Bernstein and William J. Greagan, Goldberg Segalla, LLP, Albany, NY

Bounds v. Pine Belt Mental Health Care Resources, No. 08-3487

In a product liability action based on injuries plaintiff allegedly sustained by taking defendant's drug, the district court's order dismissing plaintiff's claims against certain defendants and denying plaintiff's motion to remand is reversed where there was sufficient compliance with the Mississippi Tort Claims Act's pre-suit notice requirements to state a claim against the hospital that administered the drug and its physician-employees.

Read Bounds v. Pine Belt Mental Health Care Resources, No. 08-3487

Appellate Information

Submitted: August 26, 2009

Decided: January 27, 2010

Judges

Opinion by Judge Miner

Counsel

For Appellant:

Blewett W. Thomas, Gulfport, MS

For Appellees:

Vicki R. Leggett, Zachary & Leggett, PLLC, Hattiesburg, MS

Weintraub v. Bd. of Educ., No. 07-2376

In an action claiming that a school district violated plaintiff-teacher's First Amendment rights by retaliating against him based on his filing of a formal grievance with his union, dismissal of the complaint is affirmed where plaintiff filed his grievance pursuant to his official duties because the grievance was in furtherance of one of his core duties as a public school teacher, maintaining class discipline, and had no relevant analogue to citizen speech. Accordingly, the First Amendment did not protect his filing of a grievance.

Read Weintraub v. Bd. of Educ., No. 07-2376

Appellate Information

Argued: November 25, 2008

Decided: January 27, 2010

Judges

Opinion by Judge Walker

Counsel

For Appellant:

Richard A. Engelberg, Kreines & Engelberg, Mineola, NY

For Appellees:

Edward F.X. Hart and Leonard Koerner, New York, NY

Hanrahan v. Riverside Nursing Home, No. 09-0585

In an employment discrimination action, the dismissal of the complaint based on the res judicata effect of a prior state administrative proceeding is vacated where the state court's dismissal was not a decision on the merits that would preclude the filing of a renewed state court action.

Read Hanrahan v. Riverside Nursing Home, No. 09-0585

Appellate Information

Argued: November 2, 2009

Decided: January 25, 2010

Judges

Opinion by Judge Lynch

Counsel

For Appellant:

Anthony C. Donofrio, Massapequa, NY

For Appellee:

Roger H. Briton and Ian B. Bogaty, Jackson Lewis LLP, Melville, NY

In re Morgan Stanley Info. Fund Secs. Litig., No. 09-0837

In a securities fraud action alleging that defendant bank failed to make certain disclosures relating to the mutual funds it offered, the dismissal of the complaint is affirmed where: 1) neither the Securities Act nor Form N-1A required defendants to disclose the information that plaintiffs allege was omitted; and 2) a careful review of plaintiffs' allegations revealed that the true object of their claims was the alleged malfeasance of the mutual funds' affiliated broker-dealer entities and not the public offerings conducted by the funds themselves.

Read In re Morgan Stanley Info. Fund Secs. Litig., No. 09-0837

Appellate Information

Argued: November 13, 2009

Decided: January 25, 2010

Judges

Opinion by Judge Wesley

Counsel

For Appellants:

Dani W. Krasner, Jeffrey S. Nobel and Nancy A. Kulesa, Izard Nobel LLP, Hartford,
CT

For Appellees:

Richard A. Rosen and Walter Rieman, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY

VIP of Berlin v. Middlebrooks, No. 09-2950

In a First Amendment challenge to an ordinance that regulated the operation of sexually oriented businesses, a preliminary injunction in favor of plaintiffs is vacated where the ordinance was sufficiently clear to provide plaintiff-store with notice that the proposed inventory in its zoning application qualified it as a sexually oriented business.

Read VIP of Berlin v. Middlebrooks, No. 09-2950

Appellate Information

Argued: September 15, 2009

Decided: January 25, 2010

Judges

Opinion by Judge Straub

Counsel

For Appellants:

Thomas R. Gerarde and Katherine E. Rule, Howd & Ludorf, LLC, Hartford, CT

For Appellee:

Jennifer M. Kinsley, Sirkin Pinales & Schwartz LLP, Cincinnati, OH

In re: Jackson, No. 08-4927

In debtors' appeal from a bankruptcy court's order allowing them, pursuant to 11 U.S.C. section 522(d)(11)(E), to exempt from their bankruptcy estate only part of a settlement payment they received, the order is affirmed where: 1) debtors' contention that all of one debtor's earnings following the termination of his employment could be exempted because they would be termed future earnings under tort law was unpersuasive given the different purposes of tort law and bankruptcy law; and 2) debtors provided the bankruptcy court with no evidence based on which it could determine their actual income.

Read In re: Jackson, No. 08-4927

Appellate Information

Argued November 19, 2009

Filed January 22, 2010

Judges

Opinion by Judge Kearse

Counsel

For Appellants:

Edward P. Jurkiewicz, Torrington, CT

For Appellee:

Derek V. Oatis, Manchester, CT

In re: Assicurazioni Generali, S.p.A., No. 05-5612

In an action seeking payment of benefits on insurance policies purchased by plaintiffs' family members from defendant-insurer in the years leading up to the Holocaust, dismissal of the action is affirmed where plaintiffs' state-law claims were preempted by the foreign policy of the U.S., which favored resolution of Holocaust-era insurance claims in the International Commission on Holocaust Era Insurance Claims (ICHEIC), an international claims resolution organization founded by private insurance companies and supported by the U.S. and other foreign government entities.

Read In re: Assicurazioni Generali, S.p.A., No. 05-5612

Appellate Information

Argued: June 10, 2008

Decided: January 15, 2010

Judges

Opinion by Judge Leval

Counsel

For Appellants:

William M. Shernoff, Nancy Sher Cohen, Warrington S. Parker III and Reynold Siemens, Shernoff Bidart & Darras, Claremont, CA

Samuel J. Dubbin, Dubbin & Kravetz, LLP, Coral Gables, FL

For Appellee:

Marco E. Schnabl, Kenneth J. Bialkin, Barry H. Garfinkel and Peter Simshauser, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY

T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., No. 08-3894

In a motion to vacate an arbitral award, the district court's order affirming the arbitrator's original award and vacating subsequent amendments to the award by the arbitrator is affirmed in part where the award did not manifestly disregard the law because the arbitrator's process of calculating damages constituted a reasonable interpretation of the legal distinction between the diminution-in-value damages that were available to respondent under the N.Y. U.C.C. and the consequential damages that were excluded by the parties' contracts.  However, the order is reversed in part where the district court erred in applying the functus officio doctrine to the arbitrator, as the arbitrator was acting on the parties' petitions for reconsideration, and he revised the award pursuant to his interpretation of the arbitral rules under which the parties had agreed the arbitration would be conducted.

Read T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., No. 08-3894

Appellate Information

Argued: June 24, 2009

Decided: January 14, 2010

Judges

Opinion by Judge Livingston

Counsel

For Appellant:

Alfred J. Kuffler, Stephen W. Armstrong and Lathrop B. Nelson, III, Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia, PA

For Appellee:

Marc J. Goldstein, Marc J. Goldstein Litigation & Arbitration Chambers, New York, NY

Starr v. Sony BMG Music Entm't, No. 08-5637

In an antitrust action alleging a conspiracy by major record labels to fix the prices and terms under which their music would be sold over the Internet, dismissal of the complaint is reversed where: 1) plaintiffs' allegations were not required to exclude independent self-interested conduct as an explanation for defendants' parallel behavior; and 2) plaintiffs were not required to mention a specific time, place or person involved in each conspiracy allegation.

Read Starr v. Sony BMG Music Entm't, No. 08-5637

Appellate Information

Argued: September 21, 2009

Decided: January 13, 2010

Judges

Opinion by Judge Katzmann

Counsel

For Appellants:

Gary S. Jacobson, Christopher Lovell and Imtiaz A. Siddiqui, Lovell Stewart Halebian LLP, New York, NY

For Appellees:

Kenneth R. Logan and Helena Almeida, Simpson Thacher & Bartlett LLP, New York, NY

Ellis v. Solomon & Solomon, P.C., No. 09-1247

In a Fair Debt Collection Practices Act (FDCPA) action claiming that defendant law firm violated the FDCPA by personally serving plaintiff with a summons and complaint during the FDCPA thirty-day validation period, without explaining that commencement of the lawsuit did not affect the rights set forth in the validation notice, summary judgment for plaintiff is affirmed where service of process during the validation period must, at a minimum, be preceded or accompanied by notice to the consumer clarifying that the lawsuit does not in any way alter the information contained in the validation notice.

Read Ellis v. Solomon & Solomon, P.C., No. 09-1247

Appellate Information

Argued: November 20, 2009

Decided: January 13, 2010

Judges

Opinion by Judge Crotty

Counsel

For Appellants:

Jonathan Elliot, Zeldes, Needle & Cooper, P.C., Bridgeport, CT

For Appellee:

JoAnne S. Faulkner, New Haven, CT

Huang v. Holder, No. 08-5785

In a petition for review of the BIA's order denying petitioner's asylum application, the petition is denied where: 1) the BIA's conclusion that an involuntary IUD insertion was not an "involuntary sterilization" was permissible under Chevron; and 2) thus, the BIA's interpretation that a forced IUD insertion is not a per se ground for granting asylum is entitled to deference.

Read Huang v. Holder, No. 08-5785

Appellate Information

Argued November 23, 2009

Filed January 12, 2010

Judges

Per Curiam

Counsel

For Petitioner:

Davi X. Feng, New York, NY

For Respondent:

Kiley L. Kane, Michael F. Hertz and Jennifer L. Lightbody, Office of Immigration Litigation, United States Department of Justice, Washington, DC

In an action for breach of a mortgage loan purchase agreement, judgment for defendant based on the district court's finding that the action was champertous is reversed where the challenged assignment allowed plaintiff directly to enforce its pre-existing interest in the loan.

Read Trust for the Cert. Holders of the Merrill Lynch Mortgage Investors, Inc. v. Love Funding Corp., No. 07-1050

Appellate Information

Argued: September 26, 2008

Decided: January 11, 2010

Judges

Opinion by Judge Raggi

Counsel

For Appellant:

Ira M. Feinberg and Andowah NewtonHogan & Hartson LLP, New York, NY

For Appellee:

Alec W. Farr and Michael G. Biggers, Bryan Cave LLP, Washington, DC

Morrison v. New York, No. 08-1226

In a 42 U.S.C. section 1983 action based on plaintiff's detention at a hospital based on a finding by hospital staff that there was reasonable cause to believe she suffered from a mental illness rendering her dangerous to herself or others, dismissal of the action based on the Rooker-Feldman doctrine is vacated and remanded where Rooker-Feldman is inapplicable as the suit challenges decisions made by hospital personnel which were not compelled by a family court order.

Read Morrison v. New York, No. 08-1226

Appellate Information

Argued: April 7, 2009

Decided: January 11, 2010

Judges

Opinion by Judge Leval

Counsel

For Appellant:

Leo Glickman, Stoll, Glickman & Bellina, LLP, Brooklyn, NY

For Appellees:

Alan G. Krams and Kristin M. HelmersCorporation Counsel of the City of New York, New York, NY

Reiseck v. Universal Comms. of Miami, Inc., No. 09-1632

In an action alleging sex discrimination and failure to pay overtime wages, summary judgment for defendants is vacated in part and the matter is remanded where, because plaintiff's primary duty was the sale of advertising space, she was properly considered a "salesperson" for the purposes of the Fair Labor Standards Act (FLSA) and therefore did not fall under the administrative exemption to the overtime pay provisions of the FLSA.

Read Reiseck v. Universal Comms. of Miami, Inc., No. 09-1632

Appellate Information

Argued: December 14, 2009

Decided: January 11, 2010

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

John K. Diviney and Gina Ianne Grath, Alan B. Pearl & Associates, P.C., Syosset, NY

For Appellees:

Dana Susman and S. Reid Kahn, Kane Kessler, P.C., New York, NY

Kiobel v. Millson, No. 07-3903

In an appeal from an order pursuant to Fed. R. Civ. P. 11 sanctioning defense counsel for making factual representations that lacked evidentiary support, the order is reversed where, in light of the record evidence: 1) it was legally erroneous for the magistrate judge to conclude that the statement "there can be no doubt that the witnesses are giving testimony that counsel knows to be false" was utterly lacking in support and therefore sanctionable; and 2) counsel's possible overstatement of the money allegedly sent by plaintiffs' counsel to certain witnesses did not violate Rule 11.

Read Kiobel v. Millson, No. 07-3903

Appellate Information

Argued: January 12, 2009

Decided: January 8, 2010

Judges

Opinion by Judge Cabranes

Counsel

For Appellants:

Rowan D. Wilson, Douglas J. Dixon and Noah J. Phillips, Cravath, Swaine & Moore LLP, New York, NY

For Appellees:

Peter Nordberg, Stephen A. Whinston, Carey R. D'Avino, Berger & Montague, P.C., Philadelphia, PA

APL Co. Pte. Ltd. v. Blue Water Shipping U.S. Inc., No. 08-1516

In an action for breach of contract based on expenses related to cargo shipped as agreed but left uncollected by its owner at the dock, judgment for plaintiff with a reduced damages award against defendant is vacated in part where the trial court's obligation was to determine whether the mitigation efforts actually chosen in those unaccustomed shoes were reasonable, not whether hindsight suggested that an objectively better choice was available.

Read APL Co. Pte. Ltd. v. Blue Water Shipping U.S. Inc., No. 08-1516

Appellate Information

Argued: April 17, 2009

Decided: January 8, 2010

Judges

Opinion by Judge Vitaliano

Counsel

For Appellants:

James H. Hochenstein and Lissa D. Schaupp, Holland & Knight, LLP, New York, NY

For Appellee:

David K. Monroe, Galland, Kharasch, Greenberg, Fellman & Swirsky, P.C., Washington, DC

Garraway v. Phillips, No. 07-2302

In a murder prosecution, a denial of petitioner's habeas petition is affirmed where, as a matter of law, petitioner forfeited his objection to the prosecutor's allegedly racially discriminatory peremptory strike.

Read Garraway v. Phillips, No. 07-2302

Appellate Information

Argued: April 7, 2009

Decided: January 7, 2010

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Robert J. BoyleLaw Office of Robert J. Boyle, New York, NY

For Appellee:

Christopher J. Blira-Koessler and Joseph N. Ferdenzi, Assistant District Attorneys, Bronx County, Bronx, NY

Burg v. Gosselin, No. 09-0708

In a 42 U.S.C. section 1983 action against a canine control officer regarding defendant's issuance of a summons due to complaints about plaintiff's dog, summary judgment for defendant is affirmed where the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restraint, did not constitute a Fourth Amendment seizure.

Read Burg v. Gosselin, No. 09-0708

Appellate Information

Argued: November 10, 2009

Decided: January 7, 2010

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

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

For Appellee:

David C. Yale, Noble, Spector & O'Connor, Hartford, CT

US v. Reeves, No. 08-2966

Defendant's child pornography conviction is vacated where a condition of defendant's supervised release that obligated him, upon entry into a "significant romantic relationship," to notify the United States Probation Department and to inform the other party to the relationship of his conviction, was unconstitutionally vague and not reasonably related to the goals of sentencing.

Read US v. Reeves, No. 08-2966

Appellate Information

Argued: May 27, 2009

Decided: January 7, 2010

Judges

Opinion by Judge Parker

Counsel

For Appellant:

Darrell B. Fields, Federal Defenders of New York, Inc., New York, NY

For Appellee:

Daniel A. Spector, Assistant United States Attorney, Brooklyn, NY

US v. Guzman, No. 08-5561

In the government's appeal from a dismissal of defendants' indictments for failing to register as sex offenders under the Sex Offender Registration and Notification Act (SORNA), dismissal of the indictments is reversed where: 1) SORNA's registration requirement did not violate the Commerce Clause because requiring sex offenders to update their registrations due to intrastate changes of address or employment status was a perfectly logical way to help ensure that states would more effectively be able to track sex offenders when they crossed state lines; and 2) SORNA did not violate the non-delegation doctrine by delegating legislative authority to the Attorney General.

Read US v. Guzman, No. 08-5561

Appellate Information

Argued: September 14, 2009

Decided: January 7, 2010

Judges

Opinion by Judge Wesley

Counsel

For Appellant:

Brenda K. Sannes, Assistant United States Attorney, Syracuse, NY

For Appellees:

James P. Egan, Lisa A. Peebles, Assistant Federal Public Defenders, Syracuse, NY

US v. Payne, No. 08-0837

Defendant's RICO and drug conspiracy convictions are affirmed where: 1) because 18 U.S.C. section 1959(a)(1) provided that a person who "murders" in aid of racketeering may be "punished . . . by death," the indictment for that offense "may be found at any time without limitation"; and 2) the evidence was sufficient to show that the RICO conspiracy alleged in the indictment existed.

Read US v. Payne, No. 08-0837

Appellate Information

Argued April 22, 2009

Filed January 5, 2010

Judges

Opinion by Judge Kearse

Counsel

For Appellant:

Donna R. Newman, New York, NY

For Appellee:

Ali Kazemi, Assistant United States Attorney, Brooklyn, NY

Runner v. N.Y. Stock Exch., No. 08-0653

In an action based on an injury plaintiff sustained while using a pulley to move a reel of wire down a small flight of stairs, judgment as a matter of law for plaintiff is affirmed where defendants were liable under New York's "scaffold law" because the application of the force of gravity to an 800 pound reel of wires caused plaintiff's hands to be severely injured.

Read Runner v. N.Y. Stock Exch., No. 08-0653

Appellate Information

Argued: April 2, 2009

Decided: January 5, 2010

Judges

Opinion by Judge Cabranes

Counsel

For Appellants:

Steven J. Ahmuty, Jr., Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY

For Appellee:

Scott N. Singer, Sacks and Sacks, LLP, New York, NY

Cornejo v. Bell, No. 08-3069

In a 42 U.S.C. section 1983 action based on actions taken by the employees of the New York City Administration for Children's Services in connection with an investigation into the death of plaintiff's infant son, summary judgment for defendants is affirmed where: 1) the lawyer defendants were fulfilling functions similar to a prosecutor and were thus entitled to absolute immunity; and 2) caseworker defendants essentially functioned much more like investigators than prosecutors, so they were not entitled to absolute immunity, but they were nonetheless entitled to qualified immunity.

Read Cornejo v. Bell, No. 08-3069

Appellate Information

Argued: October 7, 2009

Decided: January 4, 2010

Judges

Opinion by Judge Rakoff

Counsel

For Appellant:

Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY

For Appellee:

Janet L. Zaleon, Michael A. Cardozo, Kristin M. Helmers, City of New York Law Department, New York, NY