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

September 2010 Archives

Discovery Order in SEC's Favor Vacated, and Criminal Matter

In SEC v. Rajaratnam, No. 10-462, defendants' appeal from a discovery order of the district court compelling them to disclose to the SEC wiretapped conversations provided to them by federal prosecutors in a related criminal case for use in this civil enforcement action against defendants, the court vacated the order where, while Title III of the Omnibus Crime Control and Safe Streets Act of 1968, does not absolutely prohibit the disclosure of wiretap conversations by defendants in a civil enforcement proceeding to a civil enforcement authority where the defendants have received the wiretaps lawfully pursuant to Title III, a district court addressing a discovery demand for such materials must balance the right of access to these materials against the privacy interests at stake.

In Norex Petro. Ltd. v. Access Indus., Inc., No. 07-4553, a RICO action alleging injury arising from the activities of an international criminal enterprise, or more specifically, "a massive racketeering scheme to take over a substantial portion of the Russian oil industry," the court affirmed the dismissal of the action where 1) the question of the justiciability of the RICO claims was properly one of whether the complaint adequately stated a claim for relief; and 2) because the RICO statute lacked a clear statement of extraterritorial reach, plaintiff's claims were barred.

Swarna v. Al-Awadi, No. 09-2525

In Swarna v. Al-Awadi, No. 09-2525, defendants' appeal from interlocutory orders and cross-appeal from a final judgment, granting plaintiff's motion for default judgment based on various claims based on the Alien Tort Claims Act (ATCA) and New York labor laws, dismissing plaintiff's claims against defendant-Kuwait on sovereign immunity grounds, and denying plaintiff's and defendants' motions for reconsideration, the court affirmed the orders in part where, while residual diplomatic immunity applied to the "acts performed by such a person in the exercise of his functions as a member of the mission," Vienna Convention art. 39(2), it did not apply to actions that pertained to his household or personal life and that may provide, at best, "an indirect" rather than a "direct . . . benefit to" diplomatic functions.  However, the court vacated in part where plaintiff's ATCA claims "arose from personal motives" and were outside the diplomats' scope of employment with Kuwait.

In Carver v. City of N.Y., No. 09-2053, an action by a recipient of public assistance against New York City for constitutional violations and violations of the minimum wage laws based on the city's interception of a lottery award to plaintiff, the court affirmed the dismissal of the action in part where, in asserting his takings and substantive due process claims, plaintiff alleges that he was injured by the taking of his lottery prize; and in asserting his equal protection claims, he alleged that he was injured by the discriminatory taking of his lottery prize on the basis of his status as a public-assistance recipient, but these injuries were caused solely by the state and not the city.

In Mitsui Sumitomo Ins. Co. v. Evergreen Marine Corp., No. 08-5184, an action involving damage to a shipment during travel by rail in the U.S. following carriage at sea from Japan, the court reversed partial summary judgment for defendant where, under the Supreme Court's decision in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S. Ct. 2433 (2010), the Carmack Amendment did not apply.

Richardson v. Superintendent of Mid-Orange Corr. Facility, No. 09-3655

In Richardson v. Superintendent of Mid-Orange Corr. Facility, No. 09-3655, the state's appeal from the grant of petitioner's habeas petition, the court reversed the order where the district court erred because petitioner failed to exhaust state remedies with respect to one of the identifications at issue, and the determination of the New York courts that the other identification was not unnecessarily suggestive was not contrary to, nor an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court.

In Brooks v. Holder, No. 09-3805, a petition for review of an order of the Board of Immigration Appeals dismissing petitioner's appeal from the immigration judge's order of removal, the court denied the petition where a New York State conviction of one count of criminal possession of a weapon in violation of N.Y. Penal Law section 265.03(1)(b) satisfied the definition of a "crime of violence" under 18 U.S.C. section 16 such that petitioner in deportation proceedings was removable and also ineligible for cancellation of removal.

In Chase Grp. Alliance LLC v. N.Y. Dep't of Fin., No. 09-2327, an action claiming that plaintiffs' right to due process was violated by liens placed upon their properties by the City of New York, the court affirmed the dismissal of the action where the complaint alleged that New York law afforded appellants a right to notice and access to a tribunal to assert their objections before the liens were imposed, and thus, appellants' right to due process was not violated.

UFCW Local 1776 v. Eli Lilly & Co., No. 09-0222

In UFCW Local 1776 v. Eli Lilly & Co., No. 09-0222, a putative class action against Eli Lilly, manufacturer of the drug Zyprexa, asserting a civil RICO violation predicated on mail fraud, conspiracy to violate RICO, violation of state consumer protection laws, common-law fraud, and unjust enrichment based on Lilly's alleged misrepresentations about Zyprexa's efficacy and safety, the court vacated the certification of a class and denial of summary judgment, holding that 1) because plaintiffs' excess price theory was not susceptible to generalized proof with respect to either but-for or proximate causation, class certification based on this theory was an abuse of discretion; and 2) the district court did not consider individual claims under plaintiffs' quantity effect theory when it ruled on Lilly's motion for summary judgment.

Vartelas v. Holder, No. 09-0649

In Vartelas v. Holder, No. 09-0649, a petition for review of the BIA's denial of petitioner's motion to reopen his removal proceedings, the court denied the petition where petitioner was not prejudiced by his attorneys' failure to argue that he was nonremovable based on his prior offenses.

Adrian v. Yorktown, No. 09-5062

In Adrian v. Yorktown, No. 09-5062, an action alleging that defendant-town, through its town supervisor and other policy-making officials, maintained an official policy under which the plaintiffs were denied the right to develop their property, and subsequently retaliated against for their exercise of their First Amendment rights, the district court's order denying post-verdict interest is vacated where, if a mandate reinstating a jury verdict does not order entry of a judgment in a specific dollar amount, and also makes no mention of interest, the district court retains the power to award post-verdict interest on remand.

In US v. Epstein, No. 09-4025, the court held that prior terms of imprisonment for violations of supervised release do not limit the maximum sentence a district court may impose for a subsequent violation of supervised release under 18 U.S.C. section 3583(e)(3), as amended by the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act).


In Wall v. US, No. 10-2354, the court denied petitioner's motion for leave to file a successive 28 U.S.C. section 2255 habeas petition challenging his child pornography conviction, holding that the claims in petitioner's first section 2255 petition were, in substance, incorporated into his subsequent direct appeal, and thus his proposed section 2255 petition was not "second or successive."

Civil Rights Actions Regarding "Ladies' Nights," and Criminal Matter

In US v. Ortiz, No. 08-2648, the court affirmed defendant's sentence for various firearms and narcotics offenses, holding that the sentence did not violate the Ex Post Facto Law clause because defendant's sentencing range under the unamended Sentencing Guidelines would have been 151 to 188 months, under the amended Guidelines the range would have been 168 to 210 months, and the district court imposed a non-Guidelines sentence of 120 months.

Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., No. 09-5368, involved an action seeking to attach defendant's property in New York as pre-judgment security for a pending arbitration in Hong Kong.  The court affirmed the dismissal of the action for lack of personal jurisdiction, holding that the district court did not err in declining to fashion an equitable remedy in circumstances where it was clear that the original attachment order could not be sustained in light of Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009).