Federal Judiciary

Ooooh, technical. In Local Union

Posted on November 12, 2010
Ooooh, technical. In Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO v. NLRB, the Second Circuit dealt with a technical issue. The NLRB sought to have the case transferred to the DC Circuit because it had not been served with a copy of the petition for review stamped by the court with the date of filing, as required by statute...

Attorneys' Fees. The Second Circuit

Posted on November 10, 2010
Attorneys' Fees. The Second Circuit has held that an attorney appearing pro se in a bankruptcy proceeding is not entitled to seek attorneys' fees under Bankruptcy Code 7430 after prevailing in challenging a claim filed against him in the bankruptcy court...

Reissued Order. The Board of Immigration

Posted on November 08, 2010
Reissued Order. The Board of Immigration Appeals dismissed a petitioner's appeal on the ground that no brief was filed within the time scheduled by the Court. The reason for this was that her attorney withdrew, and her new attorney moved for reconsideration...

Burned. In Moltner v. Starbucks

Posted on November 04, 2010
Burned. In Moltner v. Starbucks Coffee Co. (discussed below), the plaintiff had been burned while opening the lid on a "Venti"-sized cup of coffee from Starbucks. The defendant moved for summary judgment, which motion was granted. The plaintiff put in expert affidavits to show that cups and/or lids were defectively designed...

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Removal. The Second Circuit held

Posted on November 04, 2010
Removal. The Second Circuit held that the time to remove a case begins to run from the time that the amount of damages are specified, not from the time the complaint is served (though, of course, that can be the same time). In Moltner v. Starbucks Coffee Co...

No tax. The Indian and Mongolian

Posted on August 17, 2010
No tax. The Indian and Mongolian missions are not subject to taxation, pursuant to a Notice issued by the State Department, pursuant to its authority under the Foreign Missions Act. The Notice establishes an exemption from real property taxes on property owned by foreign governments and used to house the staff of permanent missions to the United Nations or the Organization of American States or of consular posts...

Psychedelic Drug Blawg. My friend

Posted on July 15, 2010
Psychedelic Drug Blawg. My friend and colleague Noah Potter has entered the blawgosphere with a new blog, which deals in large part, with medical marijuana issues. You can find the New Amsterdam Psychedelic Law Blog here.

No arbitration. The Second Circuit

Posted on July 13, 2010
No arbitration. The Second Circuit has held that an arbitration clause in a promissory note was unconscionable under California law because of class-action and class-arbitration provisions. Accordingly, the plaintiff, in Fensterstock v. Education Finance Partners, was able to continue his class action, which involved allegations of fraudulent and deceptive practices in connection with the solicitation, consolidation and servicing of student loans, in court...

Top Guns. While the Second Circuit

Posted on July 13, 2010
Top Guns. While the Second Circuit is one of the most important commercial courts in the United States, we rarely get a number of top gun attorneys appearing in a single case. In Fox Television Statements, Inc. v. FCC. Three top well-known appellate lawyers appeared in the case -- Carter Phillips, Miguel Estrada and Seth Waxman...

Wrong. The Appellate Division,

Posted on June 24, 2010
Wrong. The Appellate Division, Third Department has disagreed with the Second Circuit on the constitutionality of New York's persistent felony offenders sentencing statute. In People v. Battease, the Third Department rejected the defendant's contention that his 20-years-to-life sentence was excessive and unconstitutional...

EFTs. The Second Circuit has held

Posted on June 22, 2010
EFTs. The Second Circuit has held that electronic fund transfers temporarily in the possession of an intermediate bank in New York may not be garnished. The decision in Export-Import Bank of the United States v. Asia Pulp & Paper Co. can be found here.

Costs. The Second Circuit has

Posted on June 02, 2010
Costs. The Second Circuit has held that a district court was not restricted in any way from awarding a successful appellant as a cost the expense of obtaining a letter of credit in order to bond an appeal. The mandate of the appellate court does not have to specify what costs may be sought from the district court...

More certified questions. This

Posted on May 24, 2010
More certified questions. This time the questions are being certified to the Connecticut Supreme Court. The case, Arrowood Indemnity Co. v. King, involves an insurance company's disclaimer of liability purportedly because the accident at issue did not occur in an "insured location...

Certified questions. This time

Posted on May 24, 2010
Certified questions. This time the questions are certified to the Vermont Supreme Court. The case, Hunt Construction Group, Inc. v. Brennan Beer Gorman/Architects, P.C., involves a dispute between a general contractor and design professionals. The District Court dismissed the action, holding that the action was barred by the Vermont economic loss doctrine...

Federal rate. The Second Circuit

Posted on May 24, 2010
Federal rate. The Second Circuit has held that the federal rate of post-judgment interest rather than the New York rate should be applied in a diversity case where the contract at issue contains a choice-of-law provision providing that New York law applies...

Nomination to the Second Circuit.

Posted on May 21, 2010
Nomination to the Second Circuit. President Obama has nominated Yale University deputy general counsel Susan Carney to a seat on the Court of Appeals for the Second Circuit.

No appellate jurisdiction. The

Posted on April 27, 2010
No appellate jurisdiction. The Second Circuit, in Greenwich Financial Services Distressed Mortgage Fund 3 LLC v. Countrywide Financial Corp., held that the Class Action Fairness Act of 2005 bars appellate review of orders remanding securities class actions to state court...

Pro se Estate. The Second Circuit

Posted on April 27, 2010
Pro se Estate. The Second Circuit has held that the administrator of an estate can represent the estate pro se where the estate has no other beneficiaries (other than the administrator) or creditors. The decision in Guest v. Hansen can be found here.

Late again. In Lora v. O'Heaney,

Posted on April 15, 2010
Late again. In Lora v. O'Heaney, the appellants, two defendants in a prisoner lawsuit had moved for summary judgment on qualified immunity grounds. The District Court denied the motion on January 21, 2009. The appellants moved for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure...

Late. Bad news for the defendant

Posted on March 29, 2010
Late. Bad news for the defendant in Napoli v. City of Windsor. A motion for summary judgment on qualified immunity was denied on January 12, 2009. On May 14, 2009, an order was issued clarifying the January 12, 2009. On June 9, 2009, the defendant filed a notice of appeal...

New nomination. President Obama

Posted on March 11, 2010
New nomination. President Obama as nominated Assistant U.S. Attorney Raymond Lohier, Jr. for a seat on the Second Circuit. Mr. Lohier is chief of the Securities and Commodities Fraud Task Force of the U.S. Attorney's Office of the Southern District of New York...

Certified questions. On an appeal

Posted on March 05, 2010
Certified questions. On an appeal from a preliminary injunction, enjoining the sale of untaxed cigarettes by a American Indian merchant to anyone other than members of the tribe, the Second Circuit certified two questions to the New York State Court of Appeals:1...

Lynne Stewart. The Second Circuit

Posted on February 24, 2010
Lynne Stewart. The Second Circuit refused to rehear en banc its decision relating to the sentence of attorney Lynne Stewart. The decision denying rehearing en banc in United States v. Stewart, along with the concurrence (by Chief Judge Jacobs and Judges Wesley and Hall) and dissent (by Judges Cabranes and Raggi) can be found here.

New Second Circuit Judge. President

Posted on February 24, 2010
New Second Circuit Judge. President Obama has nominated Judge Robert Chatigny for a seat on the Second Circuit. Judge Chatigny currently sits as a district court judge in the District of Connecticut.More information about the appointment can be found here.

Holocaust insurance claims. The

Posted on February 09, 2010
Holocaust insurance claims. The plaintiffs, relatives of victims of the Holocaust, sought to recover insurance proceeds from policies purchased by the victims. The Second Circuit, agreeing with the District Court, held that the state law claims were preempted by the United States foreign policy, which favors the resolution of such claims by the International Commission on Holocaust Era Insurance Claims...

Commerce Clause. The District

Posted on January 07, 2010
Commerce Clause. The District Court, in United States v. Guzman, had held that 42 U.SC. 16913, which provides that a convicted sex offender must register "and keep the registration current, in each jurisdiction where the offender resides, . . is . . ...

Significant romantic relationship.

Posted on January 07, 2010
Significant romantic relationship. The Second Circuit vacated a condition of supervise release that required the defendant to inform the Probation Department if he entered into a significant romantic relationship and to inform the other party in the relationship of his conviction for possession of child pornography...

Qualified Immunity. While caseworkers

Posted on January 04, 2010
Qualified Immunity. While caseworkers who allegedly wrongfully remove a child from his home are not entitled to absolute immunity for their actions, the Second Circuit has asserted that they are entitled to qualified immunity, and upheld the ruling of a District Court (while disagreeing with it on the absolute immunity issue), dismissing an action for wrongul removal of a child...

Electronic Filing Cometh. From

Posted on December 29, 2009
Electronic Filing Cometh. From the Second Circuit website relating to electronic filing in the Second Circuit can be found here.

Blurring. A coffee company got

Posted on December 07, 2009
Blurring. A coffee company got sued by Starbucks when it marketed a dark roasted blend that it called Charbucks Blend (and later Mr. Charbucks). The District Court dismissed Starbuck's action, holding that there was no dilution of Starbuck's trademark or likelihood of dilution and no likelihood that consumers would confuse the dark roasted blend with Starbucks...

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