U.S. Second Circuit: August 2010 Archives
U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

August 2010 Archives

Kurzberg v. Ashcroft, No. 07-0542, involved an action by five Israeli nationals who were illegally present in the United States on September 11, 2001, concerning certain alleged particulars of their arrest on that day and their confinement thereafter at the Metropolitan Detention Center in Brooklyn.  The court affirmed the dismissal of the action for failure to serve process, holding that 1) plaintiffs failed to comply with Fed. R. Civ. P. 4(i) because they did not effect service on the U.S.; and 2) plaintiffs were afforded a reasonable time to cure their failure to serve, as is required by Rule 4(i).

US v. Pfaff, No. 09-1702

In US v. Pfaff, No. 09-1702, a tax evasion prosecution, the court vacated the fine imposed on one defendant, holding that the district court plainly erred in imposing a fine, pursuant to 18 U.S.C. section 3571(d), based on the court's finding that defendant caused a certain pecuniary loss, when that fine exceeded the maximum fine that would have been permitted absent the finding.

In Re: Zarnel, No. 07-0090

In Re: Zarnel, No. 07-0090, involved an appeal from a district court's order dismissing a bankruptcy trustee's appeal for lack of standing and in the alternative affirming the bankruptcy court's decision to strike the bankruptcy petitions filed by respondents rather than to dismiss their cases.  The court vacated the order on the grounds that 1) the U.S. Trustee's responsibility to represent and protect the public interest afforded it a substantial interest in, and therefore standing, to proceed with this appeal; 2) the court needed only assure itself that it was deciding a live case or controversy, and Article III jurisdiction existed; and 3) the restrictions of 11 U.S.C. sections 301 and 109(h) were not jurisdictional, but rather elements that must be established to sustain a voluntary bankruptcy proceeding.

Southern New England Tel. Co. v. Global Naps Inc., No. 08-4518

Southern New England Tel. Co. v. Global Naps Inc., No. 08-4518, involved an action by a telephone company seeking payment for services rendered pursuant to its federal tariff.  The court affirmed summary judgment for plaintiff, a civil contempt order entered against defendant, and a default judgment entered against defendants for failure to comply with discovery orders, holding that 1) the Telecommunications Act did not divest the federal courts of subject matter jurisdiction over claims seeking the enforcement of a federally filed tariff whenever adjudication of the claims required the interpretation of an interconnection agreement between telecommunications carriers; and 2) the district court did not abuse its discretion in imposing the discovery sanctions it did.

 

Telephone Consumer Protection Act Action, and Employment Matter

Bessemer Trust Co., N.A. v. Branin, No. 08-2462, involved an action alleging that defendant illegally solicited his former clients at plaintiff.  The Second Circuit certified the following question to the New York Court of Appeals: "What degree of participation in a new employer's solicitation of a former employer's client by a voluntary seller of that client's good will constitutes improper solicitation?"

GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., No. 09-2790

GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., No. 09-2790, involved petitioner's appeal from the district court's order granting a motion to disqualify petitioner's counsel.  The court affirmed on the ground that counsel represented respondent's parent company, respondent and the parent company were so closely related that they were essentially one client for disqualification purposes, and counsel had thus engaged in concurrent representation, which it could not do without the parent company's consent.

In Chavis v. Chappius, No. 07-2304, the court vacated denial of plaintiff-inmate's motion to proceed in forma pauperis, holding that 1) a complaint and a subsequent appeal therefrom qualified as separate "strikes" if both are dismissed for reasons listed in 28 U.S.C. section 1915(g); 2) the district court abused its discretion in denying plaintiff's motion for leave to amend his complaint; and 3) a plaintiff who satisfies section 1915(g)'s "imminent danger" exception may proceed in forma pauperis on all claims in her complaint.

Friedman v. Rehal, No. 08-0297

In Friedman v. Rehal, No. 08-0297, a sexual abuse prosecution, the court affirmed the denial of petitioner's habeas petition, holding that 1) the fact that hypnosis may have been used to stimulate alleged victims' memory recall and potentially induce false memories of abuse was a circumstance that would fit comfortably under the general understanding of impeachment evidence -- evidence that "is offered to discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony"; and 2) even if hypnosis evidence comes within Brady's broader definition of exculpatory evidence, the petition would still have to be denied.

In US v. Bonilla, No. 09-1799, the court granted the government's motion for summary affirmance of defendant's conviction and sentence for reentering the U.S. after having been deported, holding that 1) the court has never required a district court to make specific responses to points argued by counsel in connection with sentencing; and 2) a prior felony conviction need not be pleaded, proved, or admitted to.

Zhang v. Holder, No. 09-2628, concerned a petition for review of a decision by the Board of Immigration Appeals dismissing petitioner's appeal of an Immigration Judge's order, which terminated his reopened removal proceedings on the basis that he had already been removed from the U.S.  The court denied the petition, holding that the BIA was entitled to deference regarding its interpretation of the regulation governing motions to reopen.

Zheng v. Liberty Apparel Co., No. 09-4890

Zheng v. Liberty Apparel Co., No. 09-4890, involved an action claiming that defendants acted as a joint employer of the plaintiff garment workers, and were liable for unpaid and underpaid wages pursuant to the Fair Labor Standards Act, New York state analogs, and New York Labor Law section 345-a(1).  The court affirmed judgment for plaintiffs on the ground that the district court properly allowed the jury to make the joint-employment determination.

Oneida Indian Nation v. Cty. of Oneida, No. 07-2430, involved an action by the Oneida Indian Nation claiming that the State of New York wrongfully appropriated its lands.  The court affirmed in part partial summary judgment for defendants, holding that was controlling, and thus all claims dependent on the assertion of a current possessory interest in the subject lands were barred by equitable defenses.  However, the court reversed in part on the grounds that 1) plaintiffs' purportedly nonpossessory claim was also barred, both by New York's sovereign immunity and by the equitable principles applied in Cayuga; and 2) on the same basis, the alternative nonpossessory claim articulated on appeal by the plaintiffs, premised on a violation of the Nonintercourse Act, was also barred.

Argueta v. Holder, No. 09-4021, concerned a petition for review of a decision by the Board of Immigration Appeals affirming the judgment of the immigration judge denying petitioner's application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act.  The court denied the petition on the ground that the court found nothing in the applicable statutory and regulatory provisions that temporally limited the discretionary factors the agency may consider in deciding whether to grant cancellation of removal to an applicant who was statutorily eligible for that relief.

Trademark Infringement Summary Judgment Reversed, and Criminal Matter

Chloe v. Queen Bee of Beverly Hills, LLC, No. 09-3361, involved an action alleging violations of sections 32(1) and 43(a) of the Trademark Act of 1946, 15 U.S.C. section 1051, et seq., and New York General Business Law section 349, as well as common law trademark infringement and unfair competition.  The court vacated summary judgment for defendant on the ground that defendant's single act of shipping an item into New York, combined with the affiliated business's substantial activity involving New York, give rise to personal jurisdiction over defendant.

Henry v. Wyeth Pharms., Inc., No. 08-1477, involved an action for racial discrimination and retaliation in violation of Title VII.  The court of appeals affirmed judgment for defendants in part, on the ground that, although a reasonable juror could certainly have considered certain remarks by plaintiff's colleagues discriminatory, they had little probative value in the context of the case.  However, the court vacated in part on the ground that the district court's instruction on causation was erroneous because a causal connection was sufficiently demonstrated if the agent who decides to impose the adverse action but is ignorant of the plaintiff's protected activity acts pursuant to encouragement by a superior (who has knowledge) to disfavor the plaintiff.

 

Child Pornography Conviction Reversed, and Immigration Matter

Lecaj v. Holder, No. 09-0768, involved a petition for review of the order of the Board of Immigration Appeals (BIA) and the decision of the Immigration Judge (IJ) denying petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture.  The court of appeals denied the petition on the grounds that 1) the IJ reasonably designated -- and the BIA implicitly adopted -- Montenegro as the country of removal in accordance with 8 U.S.C. section 1231(b)(2)(D) and (E); 2) the State Department's report constituted substantial evidence of a fundamental change in Montenegrin country conditions sufficient to rebut any presumption of a well-founded fear of future persecution.

In US v. Broxmeyer, No. 09-1457, the court of appeals reversed defendant's convictions for production of child pornography and for transportation of a minor across state lines with the intent to engage in criminal sexual activity, holding that 1) the prosecution failed to prove beyond a reasonable doubt that defendant persuaded, induced, or enticed the victim to take Photos 1 and 2; and 2) an 18 U.S.C. section 2423(a) conviction cannot lie where the unlawful sexual act occurs before the crossing of state lines, and where there is no evidence of an intent to commit a sexual act when state lines were crossed.

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Rioting at a Correctional Institution a Violent Felony Under ACCA

Plus Ruling in Action Claiming Deprivation of Due Process

In US v. Johnson, No. 08-5245, the court of appeals affirmed defendant's sentence for being a felon in possession of a firearm, holding that a violation of Connecticut General Statute section 53a-179b (Rioting at a correctional institution) qualified as a "violent felony" under the Armed Career Criminal Act.

Scott v. Fischer, No. 09-1451, involved an action claiming that defendants deprived plaintiff of liberty without due process of law both by placing her on mandatory post-release supervision without a proper judicial sentence and by failing to take action to remove the supervision before or after she was rearrested for violating the terms thereof.  The Second Circuit affirmed the dismissal of the action on the grounds that defendants were entitled to qualified immunity for all actions they took prior to the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and further, plaintiff had not pleaded sufficient facts to state a claim upon which relief can be granted for any actions the defendants took thereafter.

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Baker v. Simpson, No. 09-3848, concerned plaintiff's appeal from the denial of his motion to remand his legal malpractice action from a bankruptcy court to state court.  The court of appeals affirmed on the ground that claims of professional malpractice, based on services rendered pursuant to a Title 11 petition, "arise in" a bankruptcy case because they implicate the integrity of the bankruptcy process and are inseparable from that proceeding.

Mui v. US, No. 07-4963, involved petitioner's appeal from a district court's order denying habeas corpus relief from a conviction and prison sentence, and denying a motion under Federal Rule of Civil Procedure 60(b) to reopen that decision.  The Second Circuit vacated the order on the ground that a defendant who raises on direct appeal ineffective assistance claims based on the strategies, actions, or inactions of counsel that can be, and are, adjudicated on the merits on the trial record is precluded from raising new or repetitive claims based on the same strategies, actions, or inactions in a Section 2255 proceeding.  However, such a defendant is not precluded from raising new ineffective assistance claims based on different strategies, actions, or inactions of counsel in a subsequent Section 2255 proceeding.

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