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

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 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. But who knows when that will happen? You can follow her law school adventures (and non-law school adventures) at Only 3 Years.

And while I'm at it, my first law student blogger adoptee, Heidi Bond, after clerking for Judge Alex Kozinski of the Ninth Circuit and Justices Sandra Day O'Connor (retired) and Anthony Kennedy of the United States Supreme Court is now an Assistant Professor at Seattle University School of Law. (She has been since 2009. I've been holding out on you.)

And my second law student blogger adoptee, Butterflyfish is still blogging and is pregnant (second time). I'm sworn to secret about anything else.

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. The Court held that there was no evidence of congressional intent to create a private right of action.

The decision in the case can be found here.

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. Because of this defect, the NLRB asserted that the appeal should be heard where the case had been instituted, i.e., in the DC Circuit. The petitioner had, however, served it with the petition for review, accompanied by the e-mail bearing the date and time of filing. The Second Circuit held that this was sufficient compliance with the statute and denied the NLRB's motion.

The decision in this case can be found here.

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.

The decision in United States v. Hudson can be found here.

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. Within 30 days of the denial of that motion and after the BIA had issued a "Reissued Order," she appealed to the Second Circuit even though more than 30 days after had passed since the issunace of the original order. The Second Circuit held that the appeal was timely in that the petitioner was seeking relief was from the Reissued Order.

The decision in Lewis v. Holder can be found here.

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. The district court held that all of affidavits did not meet the standard required by Rule 702 of the Federal Rules of Evidence. The Second Circuit agreed in a summary order.

The summary order can be found here.

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., the plaintiff did not specify the damages in her complaint. The defendant served a Request for Supplemental Demand for Relief. The plaintiff responded that she sought damages not to exceed $3 million. The defendant then sought to remove the case to federal court. The plaintiff sought to remand the case to state court, claiming that the removal was untimely. The Court declined to remand and granted defendants' motion for summary judgment (discussed in another post). The plaintiff appealed from the order denying her motion for remand and granting the defendant's motion for summary judgment.

The Second Circuit in upholding the decision not to remand the case, stated: "We join the Eighth Circuit, as well as all of the district courts in this Circuit to have addressed the issue, inholding that the removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages." The Court felt that it was unreasonable for a defendant to be forced to guess the defendant's damage and seek removal on the basis of such a guess.

The decision in this case can be found here.

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. The Second Circuit held that the State Department had acted within its power in issuing the Notice.

The decision in City of New York v. Permanent Mission of India to the United Nations can be found here.

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.

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. In a prior decision in the case, the Second Circuit had held that the indecency policy of the FCC was arbitrary and capricious under the Administrative Procedure Act. The Supreme Court disagreed and remanded the case to the Second Circuit to consider the petitioners' constitutional argument. On remand, the Second Circuit held that the policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes beyond the "fleeting explitives" at issue in the case. The decision can be found here. Congratulations to Carter, Miguel and Seth for being among the prevailing attorneys. The case was argued on January 13, 2010. If I had known of the star power being assembled in this case, I certainly would have made time to come down for the argument.

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. The Second Circuit's decision can be found here.

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. The decision in that case can be found here. The Second Circuit, in Besser v. Walsh and other cases, has invalidated heavy sentences imposed under the statute because they were imposed by judges on persistent felony offenders and not by jurors, in violation of the Sixth Amendment. The Second Circuit's decision can be found here. The Third Department held that it was not bound by local federal circuit court rulings.

This raises an interesting issue. Assume that the New York State Court of Appeals hears this case and agrees with the Third Department. All state courts will be bound by this precedent. But then, if the case goes to federal habeas review, the federal courts will be bound by the Second Circuit decision. In questions of constitutional law, the Second Circuit would not be bound by the decision of the New York State Court of Appeals. So the two court systems would seem to be directly competing on this matter, with the federal system winning in the end. So was the Third Department correct in finding that it was not bound by the Second Circuit's interpretation of federal constitutional law?

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 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.

The decision in L-3 Communications Corp. v. OSI Systems, Inc. can be found here.

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." The questions are:

1. With respect to a claim for negligent entrustment under a liability policy that excludes coverage for "[a]rising out of . . . [t]he entrustment by an insured" "to any person""of a motor vehicle" other than "[a] motorized land conveyance designed for recreational use off public roads, not subject to motor vehicle registration and . . . [o]wned by an insured and on an insured location," is the insured location
(a) the place where the entrustment of the vehicle took place; or
(b) the place where the vehicle is garaged; or
(c) the place where the accident occurred?

2. In the absence of a policy definition of "premises," should a private road located within a residential development owned by insured's homeowners association be considered "premises used . . . in connection with a [residence] premises" under the terms of a homeowner's insurance policy if the portion of the road where the liability arose is not regularly used by the insured, although other portions of the road are so used?

3. Under Connecticut law, where a liability insurance policy requires an insured to give notice of a covered claim "as soon as practical," do social interactions between the insured and the claimant making no reference to an accident claim justify a delay in giving notice of a potential claim to the insured?

The decision in which the Court certified these questions can be found here.

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. The question certified by the Second Circuit are:

1. Does the economic loss doctrine bar a contractor from seeking purely economic damages against design professionals who allegedly provided negligent professional services in violation of the designed professionals' contractual obligations with a mutual counterparty?

2. Does the economic loss doctrine apply to claims of negligent misrepresentation?

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. The Court held that the choice-of-law provision was insufficient to establish that the parties intended that the federal rate would not apply. The decision in FCS Advisors, Inc. v. Fair Finance Co. can be found here.

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 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.

The Second Circuit's decision can be found here.

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, 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. (That motion was not made within the ten days period within which such motions must be made.) The Court denied that motion on July 29, 2009. The appellants filed notices of appeal from both the underlying decision and the decision denying reconsideration on August 27, 2009.

The plaintiff moved to dismiss the appeals. On November 19, 2009, a motions panel of the Second Circuit held that the District Court's orders denying qualified immunity are appealable collateral orders because the defendants had conceded the plaintiff's version of the facts for the purposes of the appeal. The motions panel also stated that only the appeal from the order denying reconsideration was timely.

On full appeal, the Second Circuit noted that an untimely Rule 59(e) motion is treated as a motion for relief from a final judgment, order or proceeding, under Rule 60(b). Such a motion does not toll the time within which an appeal from the underlying order must be taken. An appeal from an order denying Rule 60(b) relief does not bring up the merits of the underlying judgment or order. Such an order is not an appealable collateral order. Accordingly, the Court dismissed the appeal.

The decision in this case can be found here.

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. Too late! Because the May 14, 2009 order did not relate to qualified immunity issue, it did not restart the time to appeal. The Second Circuit dismissed the appeal for lack of appellate jurisdiction.

The decision in the case can be found here.

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.

For more information on this nomination, click here.

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. Does New York Tax Law 471-e, either by itself or in combination with the provisions of section 471, impose a tax on cigarettes sold on Native American reservations when some or all of these cigarettes may be sold to persons other than members of the reservation's nation or tribe?

2. If the answer to Question 1 is "no," does New York Tax Law 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to person other than members of the reservation's nation or tribe?

The decision in City of New York v. Golden Feather Smoke Shop, Inc. can be found here.

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.

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 concurrences (by one by Chief Judge Jacobs and joined by Judges Wesley and Hall and one by Judge Pooler) and dissent (by Judges Cabranes and Raggi) can be found here. Even Judge Cabranes's dissent did not favor en banc review in order to shorten Lynne Stewart's sentence or even to maintain the lenient sentence imposed by the District Court. He felt that certain issues should have been addressed, but were not, by the panel. These issues included the reasonableness of Lynne Stewart's sentence, the "nature" and "seriousness" of Stewart's offense and the purported lack of harm caused by the offense. It is likely that she will be spending a longer period behind bars than was originally thought.

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. The Court's decision was based on the Supreme Court case, American Insurance Association v. Garamendi.

The decision in In re Assicurizioni Generali, S.P.A. can be found here.

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 . . . employ[ed], [or] is a student," exceeds congressional power under the Commerce Clause. The Second Circuit disagreed, holding that "[t]o the extent that [section] 16913 regulates solely intrastate activity, its means 'are "reasonably adapted" to teh attainmnet of a legitimate end under the commerce power.'"

The decision can be found here.

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. The Court held that the condition was too vague and not reasonably related to sentencing objectives in that there was nothing in the record suggesting that he had been a threat to a romantic partner. The Court also found that the condition effected an unnecessary deprivation of liberty.

The decision in United States v. Reeves can be found here.

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.

The decision in Cornejo v. Bell can be found here.