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

October 2010 Archives

AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., No. 08-4196

Dispute Over Use of Natural Gas Storage Facility

In AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., No. 08-4196, an action against two banks in alleging a superior right to continue to use the gas in a natural gas storage facility, the court affirmed in part summary judgment for defendants the district court was correct that defendant retained a valid security interest in the gas under the operative agreements, and the plaintiffs' refusal to return the gas thereafter constituted conversion.  However, the order is reversed in part where defendants could identify no special circumstances sufficient to overcome the presumption in favor of adjudication of the Tort and Contract Claims in the Texas District Court, where the action was originally filed prior to transfer.

 

US v. Rosa, No. 09-0636

Child Pornography Conviction Affirmed

In US v. Rosa, No. 09-0636, the court affirmed defendant's convictions for producing child pornography and of witness tampering, holding that, while the court agreed with defendant that a search warrant failed for lack of particularity and, in light of Groh v. Ramirez, 540 U.S. 551 (2004), could not be cured by reference to unincorporated, unattached supporting documents, the district court correctly refused to exclude the resulting evidence.

Myers v. Hertz Corp., No. 08-1037

FLSA Overtime Action

In Myers v. Hertz Corp., No. 08-1037, an action asserting claims against Hertz Rental Car for overtime violations of the Fair Labor Standards Act, and various provisions of New York state law, the court affirmed the denial of class certification where the district court did not abuse its discretion in concluding that Hertz's common policy demonstrated little regarding whether the constituent issues that bore on Hertz's ultimate liability were provable in common.

 

Ahmed v. Holder, No. 09-4247

Waiver of Inadmissibility Request Denied

In Ahmed v. Holder, No. 09-4247, a petition for review of an order of the Board of Immigration Appeals (BIA) denying petitioner's request for a waiver of inadmissibility under section 237(a)(1)(H) of the Immigration and Nationality Act, the court denied the petition where the court lacked jurisdiction to review the BIA's discretionary denial of a waiver of inadmissibity under § 237(a)(1)(H).

 

US v. Drachenberg, No. 09-3114

Conspiracy to Defraud U.S. Conviction Affirmed

In US v. Drachenberg, No. 09-3114, the court affirmed Defendant's conviction for conspiracy to defraud the U.S., holding that the U.S. government had jurisdiction to prosecute defendant in New York for actions taken in furtherance of a conspiracy to evade income taxes, and defendant's tax protestor arguments were frivolous.

 

Quezada v. Smith, No. 10-2738

Leave to File Second Habeas Writ Granted

In Quezada v. Smith, No. 10-2738, an application pursuant to 28 U.S.C. section 2244(b)(3) for leave to file in the district court a second petition for a writ of habeas corpus, the court granted the petition where 1) reexamination of an untimeliness ruling that was made with respect to a first habeas corpus petition may occur only in limited circumstances, such circumstances were not present in petitioner's case, and his current petition was properly considered "second"; and 2) petitioner made a sufficient showing to satisfy the court's "gate-keeping" responsibility under 28 U.S.C. section 2244(b)(3).

Wellington v. Holder, No. 09-4111

Petition for Review of Denial of Cancellation of Removal Denied

In Wellington v. Holder, No. 09-4111, a petition for review of the BIA's decision dismissing petitioner's appeal from the denial of her application for cancellation of removal, the court denied the petition where a Certificate of Relief or similar state rehabilitative treatment did not preclude use of the underlying offense as a basis for removal under 8 U.S.C. section 1182(a)(2)(A)(i)(II) or as a basis for ineligibility for cancellation of removal under 8 U.S.C. section 1229b(b)(1), unless the relief was related to a procedural or substantive defect in the criminal proceedings.

 

US v. Brown, No. 08-1207

Drug Trafficking Sentence Partially Vacated

In US v. Brown, No. 08-1207, the court affirmed in part defendant's drug trafficking sentence, holding that the district court properly found that defendant's motions seeking to force the government to recommend a downward departure were meritless because no plea agreement requiring such a motion was ever entered and defendant alleged no unconstitutional motive for the government declining to recommend a downward departure.  However, the court vacated in part where the district court erred by refusing to hear defendant's ineffective assistance of counsel claim, raised after his conviction but before sentencing, until after he had been sentenced.

Portalatin v. Graham, No. 07-1599

In Portalatin v. Graham, No. 07-1599, consolidated habeas petitions challenging the constitutionality of sentences imposed pursuant to New York's persistent felony offender (PFO) statute, the court affirmed the denials of the petitions where it was not unreasonable for the state court to identify a crucial distinction between the unconstitutional factfinding required under the statutes at issue in both Ring and Apprendi, and the discretionary assessment called for by the PFO statute.

Freedom Holdings, Inc. v. Cuomo, No. 09-0547

In Freedom Holdings, Inc. v. Cuomo, No. 09-0547, Sherman Act and Commerce Clause challenges to New York's Escrow and Contraband Statutes, enacted in furtherance of a 1998 Master Settlement Agreement between cigarette manufacturers and all but four states, the court affirmed judgment for defendants where plaintiffs failed to point to record evidence that precluded the district court from finding, as it did, that the challenged statutes were unilateral state actions that did not mandate or authorize private parties to restrain trade or, in any event, that the statutes were not subject to Sherman Act preemption by virtue of the state action immunity doctrine.

Tracy v. Freshwater, No. 08-1769

Summary Judgment for Officers in Civil Rights Action Partially Affirmed

In Tracy v. Freshwater, No. 08-1769, a civil rights action alleging excessive force by police, the court affirmed summary judgment for defendants in part where a reasonable officer would have construed plaintiff's conduct as intentional and threatening.  However, the court vacated in part where an issue of material fact remained in dispute with respect to plaintiff's excessive force claim based on defendant's use of pepper spray.

 

In re: Adelphia Communications Corp. Sec. & Deriv. Litig., No. 08-4904

Denial of Attorney's Fees in Securities Class Action Affirmed

In In re: Adelphia Communications Corp. Sec. & Deriv. Litig., No. 08-4904, a securities and derivative litigation, the court affirmed the denial of non-lead class counsel's petition for increased attorneys' fees following a settlement, on the ground that a standard counseling consideration of lead counsels' allocation of fees did not in any way limit the district court's ability to engage in a meaningful review of the fairness of the allocation and the overall reasonableness of fees, and such a review occurred here.

 

DeFabio v. E. Hampton Union Free Sch. Dist., No. 09-4407

First Amendment Case Involving Student

In DeFabio v. E. Hampton Union Free Sch. Dist., No. 09-4407, a case involving a student's assertion of a First Amendment right to return to school and make a statement disavowing a racial slur attributed to him, wherein plaintiff alleged violations of a student's rights to freedom of speech, freedom of association, due process and equal protection under the First and Fourteenth Amendments, as well as related state law claims, the court affirmed summary judgment for defendants where the school officials alleged to have violated the student's rights were entitled to qualified immunity from such claims where the record demonstrated a significant probability that the student would be assaulted were he permitted to return to school and deliver his message.

DiFolco v. MSNBC Cable L.L.C., No. 09-2821

Breach of Contract Action by Ex-MSNBC Anchor

In DiFolco v. MSNBC Cable L.L.C., No. 09-2821, an action for breach of contract (and related New York Labor Law violations), defamation, and tortious interference with prospective business relations, based on the termination of plaintiff's employment by defendant as an entertainment reporter, correspondent, and anchor, the court affirmed in part the dismissal of the complaint where the complaint failed entirely to describe any third party with whom plaintiff had prospective business relations to be interfered with.  However, the court vacated in part where 1) the district court improperly considered an e-mail not incorporated into the complaint; and 2) plaintiff was entitled to show that the "negative characterization" presented on the website "is coupled with a clear but false implication that the author is privy to facts about the person that are unknown to the general reader."

Amore v. Novarro, No. 08-3150

Civil Rights Action Alleging False Arrest

In Amore v. Novarro, No. 08-3150, a civil rights action alleging a false arrest, the court reversed the denial of summary judgment based on qualified immunity where the district court erred in deciding that it would have been clear to a reasonable officer in defendant's position that making the arrest was unlawful.

In Federal Treasury Enterprise Sojuzplodoimport v. Spirits Int'l. N.V., No. 06-3532, an action for trademark infringement by an entity created by the Russian government and purportedly granted rights by the government to manage the trademarks to Stolichnaya Vodka, the court reversed the dismissal of the complaint where plaintiff was not barred from challenging the validity of the assignment of the trademarks at issue in federal court on the ground that those trademarks were "incontestable" pursuant to 15 U.S.C. section 1065.

Byrne v. Rutledge, No. 07-4375

In Byrne v. Rutledge, No. 07-4375, an action alleging that Vermont's denial of plaintiff's requested vanity license plate, on the grounds that it contained a religious message in violation of state law prohibiting such messages on vanity license plates, violated the Free Speech Clause, the Equal Protection Clause, and the Due Process Clause, the court reversed summary judgment for defendant where Vermont's ban on all vanity plate combinations that "refer, in any language, to a ... religion" or "deity" constituted unconstitutional viewpoint discrimination.

Johnson v. US, No. 10-3046

In Johnson v. US, No. 10-3046, the court denied petitioner's application for leave to file a successive 28 U.S.C. section 2255 motion on the ground that petitioner's proposed section 2255 motion would not be "second or successive" under 28 U.S.C. section 2255(h), because it was his first section 2255 motion challenging his amended judgment of conviction.

Simmons v. Roundup Funding, LLC, No. 09-4984

Fair Debt Collection Practices Act Involving Inflated Proof of Bankruptcy Claim

In Simmons v. Roundup Funding, LLC, No. 09-4984, a Fair Debt Collection Practices Act action claiming that a creditor filed an inflated proof of claim in plaintiffs' bankruptcy, the court affirmed the dismissal of the complaint where a proof of claim filed in bankruptcy court cannot form the basis for a claim under the Fair Debt Collection Practices Act.

Analytical Diagnostic Labs, Inc. v. Kusel, No. 08-6297

Summary Judgment for Defendants in Equal Protection Matter Affirmed

In Analytical Diagnostic Labs, Inc. v. Kusel, No. 08-6297, a class-of-one equal protection claim alleging that defendants, employees of the New York State Department of Health, intentionally and maliciously subjected plaintiff-clinical testing laboratory to an intense and unwarranted degree of regulatory scrutiny, the court affirmed summary judgment for defendants where there was no record evidence raising a question of fact as to whether: 1) other labs were similarly situated; or 2) even assuming other labs were similarly situated, that the same decisionmakers were aware of the similarity and treated plaintiff differently.

Matthews v. US, No. 09-0321

Drug-Related Murder Conviction Affirmed

In Matthews v. US, No. 09-0321, the court affirmed defendant's convictions for racketeering, drug-related murder, and the use of a firearm, holding that, while drug-related murder can be punishable by death if certain aggravating circumstances are specified in the charging instrument, no such aggravating factors were specified in the information.

Duran v. Beaumont, No. 06-5614

Denial of Hague Petition Convention

In Duran v. Beaumont, No. 06-5614, a petition for an order compelling respondent to return petitioner's and respondent's daughter to Chile under the Hague Convention, the court vacated the denial of the petition where the district court needed to consider, in the first instance, whether any of the Hague Convention exceptions applied.

Cohen v. Viray, No. 08-3860

In Cohen v. Viray, No. 08-3860, an objector's appeal from a settlement of a shareholder derivative suit, the court vacated the approval of the settlement where the district court erred by approving the settlement because the settlement agreement impermissibly released and indemnified the company's former executives against all liability arising under section 304 of the Sarbanes-Oxley Act.