Federal Judiciary

Oy!

Posted on May 13, 2013
Don't neglect your deadlines in the Second Circuit; you may not get a second chance.  The Second Circuit denied an appellant's motion to reinstate its appeal after it had missed a filing deadline.  And the opposing party had not even opposed the motion; on the contrary, it had consented...

Smokers' Right to Medical Monitoring

Posted on May 07, 2013
The Second Circuit has certified certain questions to the New York State Court of Appeals in a case brought by certain smokers against a cigarette manufacturer.  The questions are:(1) Under New York law, may a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for such a suspected disease, pursue an independent equitable cause of action for medical monitoring for such a disease? (2) If New York recognizes such an independent cause of action for medical monitoring, (A) What are the elements of that cause of action? (B) What is the applicable statute of limitations, and when does that cause of action accrue?The decision in Caronia v...

First Sale Doctrine -

Posted on April 29, 2013
The Supreme Court, having reversed the Second Circuit's decision in Kirtsaeng v. John Wiley & Sons, Inc., and held that the first-sale doctrine is applicable as a defense against a copyright infringement claim based on unauthorized resale of authorized copies manufactured abroad and remanded the case to the Second Circuit, the Second Circuit, having nothing further to decide, reversed the District Court's judgment and remanded the case to the District Court for such further proceedings as are appropriate prior to entry of a final judgment...

Political Committee

Posted on April 29, 2013
The National Organization for Marriage, Inc. ("NOM") brought an action seeking a declaratory judgment that the definition of a "political committee" in New York Election Law 14-100.1 violates the First Amendment.  It also sought preliminary and permanent injunctions barring enforcement of the statute...

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Certified Question in Gun Case

Posted on January 30, 2013
The Second Circuit, in a decision by retired Justice Sandra Day O'Connor, has certified a question to the New York State Court of Appeals, in a case involving New York's gun licensing rules.  The case involved an individual who was denied a gun license because he was not domiciled in New York; he merely had a vacation home in the State...

Strict Compliance

Posted on January 25, 2013
The Second Circuit overturned a District Court decision that allowed a party to file a late notice of appeal.  The ECF staff had failed to update the party's attorney's e-mail address and, accordingly, the party did not receive notice of entry of a judgment against his client...

Malice.  The Second Circuit

Posted on December 24, 2012
Malice.  The Second Circuit has certified a question to the New York State Court of Appeals.  In Georgitsi Realty, LLC v. Penn-Star Insurance Co., the Court had to address the question of whether an act performed on adjacent property that caused damage to the plaintiff's property can constitute "vandalism" under the plaintiff's property insurance company...

Bad Mistake.  In Gusler v.

Posted on November 26, 2012
Bad Mistake.  In Gusler v. City of Long Beach, the plaintiff brought an action, claiming retaliation for making statements about his employer, the Long Beach Fire Department. The action was brought against the City of Long Beach, the police department, the volunteer fire department and eleven individuals...

Volley and Cheering.  The

Posted on August 08, 2012
Volley and Cheering.  The Second Circuit upheld a District Court's issuance of a permanent injuntion, preventing Quinnipiac University from eliminating its women's volley ball program.  The District Court had held that Quinnipiac's proposed elimination of the program would violate Title IX...

Investor Claims.  The Second

Posted on August 07, 2012
Investor Claims.  The Second Circuit has held that an investor may assert a claim against a portfolio manager even though the investor was not a party to the contract spelling out the manager's duties.  The Court held that the relationship between the investor and the manager was sufficiently close to impose a duty on the manager, allowing the investor to sue for gross negligence...

Picketing the RNC.  It's sort

Posted on August 03, 2012
Picketing the RNC.  It's sort of counterintuitive, but anti-abortion protesters cannot picket the Republican National Convention.  Two such protesters who picketed at  the 2004 Republican National Convention were arrested for not moving themselves to an area reserved for picketing when instructed to do so by the police...

New York Times.  Well, it's

Posted on June 01, 2012
New York Times.  Well, it's not technically about the Second Circuit, but it was published by the New York Times, which is in the Second Circuit, and it's about federal appellate judges, which include the judges of the Second Circuit, so close enough...

Standard of Review. The Second

Posted on March 27, 2012
Standard of Review. The Second Circuit rejected the Board of Immigration Appeals' ruling that an Immigration Judge's finding concerning a future event is not fact-finding subject to clear error review. The Court noted that "[a] determination of what will occur in the futre and the degree of likelihood of the occurrence has been regularly regarded as fact-finding subject to only clear error review...

On February 17, 2012, Judge Roger

Posted on February 23, 2012
On February 17, 2012, Judge Roger J. Miner of the Court of Appeals for the Second Circuit died.

Incarcertation Is Not Withdrawal.

Posted on October 03, 2011
Incarcertation Is Not Withdrawal. The Second Circuit has held that a party to a conspiracy can be held responsible for losses caused by the conspiracy after his incarcertation. In United States v. Leslie, the defendant arguedthat his sentence had been incorrectly calculated because certain losses caused by the conspiracy in which he had been engaged had been imputed to him and used to establish his sentence even though he had already been incarcerated at the time those loses were incurred...

Seventh Circuit. OK, it's not from

Posted on September 01, 2011
Seventh Circuit. OK, it's not from the Second Circuit, but you have to read this opinion just for the first line, especially if you are an appellate lawyer.

Certified question. The Second

Posted on August 05, 2011
Certified question. The Second Circuit has certified two questions to the Virginia Supreme Court. The questions are:1. Does Virginia law permit equitable tolling of a state statute of limitations due to the pendancy of a putative class action in another jurisdiction?2...

No baseball caps. The Second Circuit

Posted on June 21, 2011
No baseball caps. The Second Circuit has upheld a District Court decision, dismissing an action by an attorney who was ordered not to wear a baseball cap and casual attire when appearing in Court. The attorney had asserted claims under the First and Fourteenth Amendments of the Constitution...

Defaulted. Defendant was charged

Posted on June 07, 2011
Defaulted. Defendant was charged with murder. The jury was hung on his first trial. On his second trial, the testimony of a state's witness at the first trial was admitted without informing the jury at the second trial that the witness had since recanted his testimony...

Waiving Penalties. The Second Circuit

Posted on June 07, 2011
Waiving Penalties. The Second Circuit has held that only the Attorney General, not a district court, has the authority towaive all or part of any delinquency or default penalties properly assessed under 18 U.S.D. 3612(g) for failure to pay restitution...

School paper. The Second Circuit

Posted on May 18, 2011
School paper. The Second Circuit held that a school can prohibit a student newspaper from publishing a sexually explicit stick-figure cartoon.R.O. v. Ithica City School District can be found here.

Cigarette taxes on Indian reservations.

Posted on May 11, 2011
Cigarette taxes on Indian reservations. The Second Circuit has held that the District Court improperly enjoined the state from enforcing a cigarette tax on sales in Indian reservations. Because the tax was paid by the consumer, not by the Indian retailer, the law did not violate tribal immunity or the tribal immunity for state taxation...

Certified Question. In Connecticutt,

Posted on May 02, 2011
Certified Question. In Connecticutt, there is a common law "make whole" doctrine, under which an insurer's right of subrogation may only be enforced after the insured has been fully compensated for his loss. In Fireman's Fund Ins. Co. v. TD Banknorth Ins...

Sanctions for frivolous and vexatious

Posted on April 28, 2011
Sanctions for frivolous and vexatious litigation. When April Gallop commenced an action claiming that Dick Cheney and Donald Rumsfeld orchestrated the September 11, 2001 attacks for their own political purposes, you could predict that the case was not long for the world...

No private right of action. The

Posted on April 11, 2011
No private right of action. The Second Circuit, in M.F. v. State of New York Executive Department Division of Parole has held that the Interstate Compact for Adult Offender Supervision does not create a private right of action. M.F., an individual who had been convicted of endangering the welfare of children in New Jersey sought to move to New York, where he worked...

Standing. The Second Circuit has

Posted on March 21, 2011
Standing. The Second Circuit has reversed the District Court's grant of summary judgment to the Government in a case involving the constitutionality of a provision of the Foreign Intelligence Surveillane Act of 1978, which provides the Government unregulated authority to monitor international communications...

New Judge. The Senate has confirmed

Posted on December 20, 2010
New Judge. The Senate has confirmed the nomination of Raymond Joseph Lohier, Jr. by a vote of 92-0.

Extraterritorial reach. The Second

Posted on December 08, 2010
Extraterritorial reach. The Second Circuit has held that the RICO statute does not have extraterritorial reach. The decision in Norex Petroleum Limited v. Access Industries, Inc. can be found here.

She's arrived! Who has? Why the

Posted on December 07, 2010
She's arrived! Who has? Why the daughter of my latest law student blogger adoptee, Izzie, that's who. She's named Z, at least on the blog, and Izzie has been stingy with pictures, but I'm sure that will change.I haven't mentioned Izzie because I thought I'd wait until I updated my blogroll...

No private right of action. The

Posted on November 30, 2010
No private right of action. The Second Circuit had held that a federal statute that bars discrimination against health care workers who refuse to participate in abortion procedures does not create a private cause of action. In Cenzon-DeCarlo v. Mount Sinai Hospital, an operating room nurse claimed that she was forced to participate in a late-term abortion and sued the hospital...

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