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Tuesday, 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. 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.

Friday, 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. 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.

Wednesday, 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.

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

Monday, 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. 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.

Thursday, 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. 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.

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