Answers to Certified Questions. The Second Circuit had sent two certified questions to the New York State Court of Appeals in Regatos v. North Fork Bank. The questions were:

1. Can the one-year statute of repose established by New York UCC 4-A-505 be varied by agreement? If so are there any minimum limits of the variation thereof (such as "reasonable time") that estop the bank from denying Regatos recovery?

2. In the absence of agreement, deos New York UCC Article 4-A require actual notice, rather than merely constructive notice? If so, can this requirement be altered by agreement of the parties and was such achieved in this case?

The New York State Court of Appeals held that the statute of repose could not be varied by agreement. It further held that actual notice was required by the statute and that this requirement could not be altered by agreement.

In light of these answers, the Second Circuit affirmed the District Court's award of $731,005.48, plus interest, to Regatos.

The decision in this case can be found here.

Another cross-posting. The Second Circuit is on the verge of deciding whether, in considering a challenge to the substantive validity of an individualized education program (IEP) in special education cases, a court may consider retrospective evidence. That issue had not been considered in the administrative proceedings or by the district court, so the Second Circuit remanded the case to the district court to decide that issue. The decision in D.F. v. Ramapo Central School District can be found here. This post will also be posted on my other blog, The FAPE Page, which deals with special education issues.

Class Attorney's Fiduciary Duties. Where a party, who is technically part of a class, but enters an appearance in the class action by his own attorney, he cannot sue the class attorney for breach of fiduciary duty. Because he had his own attorney, he was not represented by the class attorney. The decision in Schick v. Berg can be found here.

Reduced fees. Well, there's one attorney who probably will take a hit in his business now that the decision in In re Goldstein has been released. David Goldstein, for reasons that are not clear, took an inordinate amount time to consummate the settlement of a wrongful death action in which he represented the plaintiff. Different explanations for the delay were given to different parties at different times in the case. At any rate, despite the delay, Goldstein asked for his full contingeny fee. The magistrate judge balked, noting that a number of Goldstein's cases had languished because of his lack of attention and disregard of court orders and that she had previously recommended sanctions against him in another case. The magistrate judge issued a recommendation that Goldstein's fees and expenses be radically reduced. The District Court adopted the recommendation. The Court referred the case to the Grievance Committee for the First Department and for the Eastern District of New York. Goldstein appealed.

The Second Circuit held that the District Court had the authority to reduce his fees and its decision to do so in this case was not an abuse of discretion. The Court stated: "Goldstein's arguments regarding the reduction of his fees demonstrate no error, much less and abuse of discretion. When asked to provide evidence of his disbursements, he did not do so. That failure and the treatment of his client, who had to personally seek the court's aid in forcing Goldstein to complete the settlement, slone justify the reduced award."

The Second Circuit held that it did have jurisdiction to consider an appeal from that part of the District Court's order, referring the matter to the disciplinary committees because the order had reputational consequences and potential costs in responding to the referral. This jurisdiction is limited. The Court may only review in such a case "for prejudicial procedural error, clear error in findings of fact, and abuse of discretion in the sanction imposed." Under the circumstances of the case, the Court affirmed this section of the order as well.

The decision in this case can be found here.

A3G Revealed! Not that it's news anymore, but blogger Article III Groupie of Underneath Their Robes is no longer anonymous and he's a federal prosecutor. And now that it's known that David Lat is the infamous A3G, he has closed down the blog. For more info, click here. This post is not really about the Second Circuit, but I don't want to be the only legal blogger who didn't mention it.

No chill. The Second Circuit has held that a public employee alleging retaliation for having exercised his or her First Amendment rights is not normally required to show that the State's conduct had an actual chilling effect. Morrison v. Johnson can be found here.

Argumentative summations. Samuel Yakobowicz was convicted on four counts of filing false federal excise tax returns on behalf of his company and one count of attempting to impede the administration of internal revenue laws. The district court allwed the parties to make short statements to the jury at the conclusion of every witness. Yakobowicz objected to this procedure on the ground that it was not authorized by the Federal Rule of Criminal Procedure. The government used its "interim summations" to argue and reargue its theory of the case to the jury.

The Second Circuit held that, in the context of criminal proceedings, such interim argumentative summations favored the prosecution, constituting structural error that warranted reversal.

Judge Sotomayer dissented, stating that while the District Court erred by allowing such interim summations, such error was not structural, but was were trial error, subject to harmless error analysis. She felt that the error was harmless.

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

No recusal. Five years ago, Judge Winter, right before he took senior status, had a conversation with the member of a law firm about whether he would continue to serve on the bench or take senior status. The lawyer told Judge Winter that if he chose to leave the bench, his firm would be interested in discussing the possibility of employing him at his firm. Judge Winter chose to continue on the bench as a senior judge. There were no further conversations on the matter. Now, one of the firms (I suspect that it is Mayer, Brown, Rowe & Maw L.L.P., but I could be wrong.) is appearing in a case before Judge Winter. He has stated that he does not think this conversation five years ago warrants recusal. No kidding.

The decision in In re CBI Holding Co. (Bankruptcy Services, Inc. v. Ernst & Young) can be found at the Second Circuit website. If I find a better site, I will post it.

Congratulations. I know that it's off-topic, but I want to congratulate fellow-blogger Heidi Bond of Letters of Marque, who has just disclosed on her blog that she will be clerking for the Honorable Alex Kozinski of the Ninth Circuit. True, it's not as good as the Second Circuit, but it's still pretty good.

Hague Protocol of 1955. The dispute was simple. A shipper was seeking to recover from an air carrier for loss of goods transported by international air freight. The legal issue, however, turned on something more esoteric -- whether the United States was a party to the Hague Protocol of 1955, which amended tthe Warsaw Convention of 1929. The Warsaw Convention is a multilaateral treaty that regulates, among other things, the liability for international air carriers. The District Court had held that United States has acceded to the Hague Protocol when it ratified Montreal Protocol No. 4 in 1998, but the Second Circuit held that the United States did not become a party to the Hague Protocol until after the Senate consented to the Protocol's ratification on July 31, 2003. The case was remanded to the District Court for further proceedings. The decision in Avero Belgium Insurance v. American Airlines, Inc. can be found on the Second Circuit website. When I get a more direct URL, I will post it.

Motion for costs after remand. A plaintiff sought sanctions and attorneys' fees because a case he had commenced had been improperly removed to federal court. The defendants had agreed to stipulate to remand, but the plaintiff refused to so stipulate. The plaintiff's initial motion to remand had been granted, but its motion for fees and sanctions was denied. The Second Circuit on appeal from the district court's order on fees and sanctions, affirmed the decision of the district court, but made clear that the district court had had jurisdiction to hear the motion. The decision in Bryant v. Britt can be found here.

Late appeal. The Board of Immigration Appeals dismissed an appeal as untimely. The petitioner had sent his notice of appeal by overnight delivery (as recommended by the BIA), but it was not delivered for five days. Had it been delivered on time, it would have been timely. The Second Circuit held that these facts might constitute the "unique and extraordinary circumstances" that would allow the BIA to consider the appeal although it was technically late. The Court vacated the BIA opinion and remanded the case for further proceedings. The decision in Sun v. United States Department of Justice can be found here.

What's the amount. The Second Circuit reversed the denial of a defendant's presentencing motion to withdraw his guilty plea on a criminal drug charge brought under 21 U.S.C. 841(b)(1)(A), which charge requires a finding of a specific quantity of crack. The defendant had not admitted to the quantity of crack involved in the offense. The decision by the Second Circuit in United States v. Gonzalez can be found here.

Non-argument calendar. Commencing October 3, 2005, the Second Circuit will institute a Non-Arguement calendar for all INS cases, involving the denial of an asylum claim. For more information on this procedure, check out the Second Circuit website.

No pretrial restraint. The Second Circuit has decided that 28 U.S.C. 2461(c), part of the Civil Asset Forfeiture Reform Act of 2000, does not authorized pretrial restraint of assets that the government claims are subject to criminal forfeiture. The decision in United States v. Razmilovic can be found here.

No 9/11 Insurance Money for Citigroup. The Second Circuit has affirmed the judgment of the District Court of the Southern District of New York that Citigroup was not entitled to insurance money paid to 7 World Trade Company, L.P. for Citigroup's permanent but removable property at 7 World Trade Center, where Citigroup had rented space. The Court held that because Citigroup's property was explicitly excluded from coverage, it was entitled to no money from the insurance proceeds. The decision (very short) in Citigroup, Inc. v. Industrial Risk Insurers can be found here.

Local call. All it takes is a local telephone call to meet the requirement of a connection to interstate commerce to support a federal conviction. The statute at issue, 18 U.S.C. 1958, requires the use of a facility in interstate commerce. The Second Circuit held that that phrase only means that the facility (which includes means of transportation and communication) is used -- at times -- in interstate commerce, not that the alleged criminal used it in interstate commerce. The circuits appear to be split on this issue. The decision in United States v. Perez can be found at here.

New blog. Well, OK, it's been around since December 2004, but it's new to me. I've just run across the Second Circuit blog, authored by a group of Federal Public Defenders in New York, New York. I haven't done an exhaustive look at the blog, but it seems to be oriented toward criminal law (understandably, given the identities of their authors). Welcome to the blogosphere, gang.

Parents. Under immigration law, someone subject to coercive family planning policies in his or her native land (or that person's spouse) may seek asylum in the United States. The Second Circuit has held that parents or parents-in-law of such persons are not entitled to seek asylum. The decision in Yuan v. United States Department of Justice can be found here.

Dickens. I usually don't report on criminal cases involving sentencing disputes, but being a big Charles Dickens fan, I could not go without providing you with a link to United States v. Brady, a case where Judge Cardamone starts off with a quote from A Tale of Two Cities. Unfortunately for Brady, the sentence she was given by the District Court, along with the giant downward departure, was remanded because the District Court's factual findings were insufficient to justify the departure. The decision can be found here. The worst of times, indeed! (Of course, further factfinding will be performed by the District Court, which may then warrant the departure, so you never know.)

Jury decides. A party who demands that a jury consider a claim for lost wages under Title VII will get a jury where the defendant fails to object. That's what the Second Circuit held in Broadnax v. City of New Haven, a case of first impression. A lost wages award is considered to be an equitable remedy, and equitable claims are generally not decided by juries. However, the Court found, agreeing with other circuits, that a failure to object is equivalent to consent under Rule 39(c) of the Federla Rules of Civil Procedure, which allows jury trials even in cases not triable of right by juries if both parties consent. The decision can be found here.

Amend that notice. If you file a notice of appeal from a judgment and the judgment is later amended after a post-trial motion, you had better file a new notice of appeal if you want to appeal from any of the amendments. The plaintiff in Sorensen v. City of New York learned that rule to her regret -- her appeal was dismissed. The decision in that case can be found here.

BTW, you've probably heard of this case. It's about the Danish woman who left her baby in a carriage in front of a restaurant while she was having lunch inside. Evidently, that's common in Denmark.

Circuit split. The Second Circuit has noted that "[t]here is a circuit split on the question of whether the actual use [of the telephone] by the defendant must be an interstate one" for such acts to be covered by 18 U.S.C. 1958. The District Court had answered that question in the negative, in accord with decisions of the Fifth and Seventh Circuits. The Sixth Circuit has taken the opposite view, as had two district courts in the Second Circuit. The Second Circuit agreed with the Fifth and Seventh Circuits.

In that the Sixth Circuit decision was limited to its facts by a later Sixth Circuit opinion, it is unlikely that this issue is likely to go up to the Supreme Court at this time.

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

Quattrone report. Frank Quattrone's appeal of his obstruction of justice conviction was argued in the Second Circuit. The New York Sun published this report of the argument.

Non-attorney Parent representing Minor Child. The Second Circuit, in Tindall v. Poultney High School District, has seemed to take a looser view on non-attorney parents representing their minor children. While, in this case, the Court did not allow the parent to represent the child, it gave more time for counsel to be retained. It also stated that "the rule that a parent may not represent her child should be applied gingerly." The decision does not set out the exact perameters of the rule, so I guess that is an issue for another day. Judge Kearse concurred in part and dissented in part. Her dissent went straight to the issue of non-attorney parents representing their children. She disagrees with the Court's less stringent view. The decision can be found here.

How odd! The Second Circuit has held that the destruction of trial exhibits, absent a showing of specific prejudice to an appellant's ability to perfect an appeal, does not warrant a new trial. That is not odd. The Second Circuit is in agreement with most other circuits on this point. What is odd that the two circuits that hold differently are the Fifth and the Eleventh Circuits, two fairly conservative circuits. Well, if the Fourth Circuit had joined them, I would have believed that the Messiah has come. To read the Second Circuit's opinion in United States v. Weisser, click here.

Supreme Court nominees. Everyone's talking about who's going to replace Chief Justice Rehnquist (or other aging justices). (It's not as bad as last year when the media decided that there Rehnquist and O'Connor were both quitting and neither did. Serves the media right!) In the past I had thought that a number of Second Circuit judges would be excellent choices. My top had been Senior Judge Jon Newman, although he's now in his 70s. I know Amalya Kearse was Judge Newman's choice -- he did an op ed piece suggesting her appointment during the Bush I presidency -- and she certainly would have been a credible pick and a fine justice. I also like Judge Jose A. Cabranes, although not being from the Federalist school, I doubt he'd even be considered, let alone considered seriously. If a Democrat were in office Guido Calabresi might have been chosen, although because of intemperate remarks about President Bush, his appointment would be fought by the Republicans. But actually, the best pick I could provide to President Bush, if he were inclined to pick a New Yorker, would not be on the Second Circuit, but on the New York State Court of Appeals. Judge Robert Smith would not only be a credit to the High Court, but has the Conservative credentials (Republican, Federalist Society) that he could actually be considered. Here's hoping President Bush looks beyond the short list that has been reported in the media.

Voting Rights of Felons. The Second Circuit, sitting en banc, has heard a case involving the voting rights of prisoners and felons on parole. New York law provides that such individuals are not eligible to vote, but the statute has been challenged under the Voting Rights Act on the ground that that qualification results in the denial to vote because of race. An article on the argument in Muntaqim v. Coombe can be found here. (You may need a password to access it. Sorry.) I will report on further developments.

Unfair settlement. The Government, in the course of criminal proceeding, entered into a settlement agreement with members of the Rigas family. Under the agreement, the Rigases would forfeit certain assets and all victims of their crimes would be discharged. Certain victims protested, claiming that the settlement would foreclose them from getting full restitution in ongoing civil actions, which they claim to be entitled to under the Crime Victims' Rights Act of 2004 ("CVRA"). The Second Circuit noted that, under the Manditory Victim Restitution Act ("MVRA"), victims are not entitled to restitution if there are too many victims or if the factual issues are so complex that determining the cause or the amount of a victim's loss would unduly prolong the sentencing process. In this case, both exceptions to required restitution under the MVRA, were applicable. Also, in light of the complex issues of culpability of the individuals and because of the security ineterest affecting the Rigases assets, the victims could not meet their burden in showing that the Government or the district court had acted unreasonabley in entering into the Settlement Agreeement or approving it. The decision in In re W. R. Huff Asset Management Co. can be found here.

"Excessive" Appeal -- Off Topic. This has nothing to do with the Second Circuit, but the Pennsylvania Superior Court's decision in Jones v. Jones may be of interest to appellate practitioners. The appellant (the wife in a divorce case) has raised 29 issues on appeal and listed them in narrative form in a statement required by Pennsylvania rules. The Court found that such a statement waived the issues on appeal and that the appeal was frivolous. The case was remanded for a hearing on counsel fees. The decision can be found here.

Denial of en banc review. The Court's decision to deny en banc review in Landell v. Sorrell seems to have triggered a debate. That case involved Vermont's radical limits on campaign spending. An article on the case from today's New York Law Journal can be found here. (You may need a password. Sorry.) The various decisions can be found at the Second Circuit website. (I will try to get a better cite.)

New certified questions. The Second Circuit has certified five questions to the New York State Court of Appeals regarding the application to summary judgment of section 388(1) of the New York Vehicle and Traffic Law. The questions are:

1. Under New York law, are uncontradicted statements of the both the owner and the driver of a car that the dirver was operating the vehicle without the owner's permissions sufficient to warrant a court in awarding summary judgment to the owner?

2. If no, can additional circumstantial evidence such as the contemporaneous accident reports submitted by the owner tip the balance and warrant a court in awarding summary judgment despite the interested nature of the sources?

3. If no, is the uncontradicted testimony of the driver and the woner that the driver was operating the vehicle without permission, even if not sufficient for summary judgment, sufficient at a trial to overcome the statutory presumption of permissive use, thereby placing the burden on the plaintiff to prove permissive use at trial?

4. Even if the concontradicted testimony of the dirver and owner that the use of the vehicle was without permission is not by itself enough to rebut the presumption of permissive use, is the addition of such further evidence as contemporaneous accident reports by the ownersufficient to do so, with the result at trial that the burden of proving permissive use will rest on the plaintiff?

5. Is the answer of any of the previous questions affected by the absence of evidence that the defendant (Amtrak) reported the unauthorized use of its vehicle to any law enforcement agency?

The decision in Country Wide Insurance Co. v. National Railroad Passenger Corp. a.k.a. Amtrak can be found here.

Bad character. An non-citizen sought suspension of deportation. However, prior to that she had attempted to obtain asylum and had made false statements in her testimony. The Second Circuit held that such statements could constitute evidence that she was not of good character, which would preclude the relief she sought. The decision in Medina v. Gonzales can be found here.

Prisoner for a Day. Susan Godding was convicted of the embezzlemant of almost $366,000 from her employer, but was sentenced to one day's imprisonment, five years' supervised reliease, with six months in hom confinement, and full restitution. The Government appealed this sentence. The Second Circuit remanded the case to the District Court, noting that the Court would be required to consider, among other things, the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." The decision in United States v. Godding can be found here.

Habeas Proceeding is Civil. Well, it should come as no surprise that a habeas proceeding is a civil action, but the question in Vacchio v. Ashcroft is whether its a civil action within the meaning of the Equal Access to Justice Act, which would allow the plaintiff to recover attorneys' fees. The proceeding at issue was "a petition for a writ of habeas corpus challenging an immigration detention." the Court found that it was a civil action under the Act and that the plaintiff was a prevailing party, but because the Government's position was substantially justified, and that the plaintiff was not entitled to fees. Judge Oakes issued a short dissent. The decision can be found here.

You gotta sign. Sarhank had a contract with one of Oracle Corp.'s subsidiaries. It sought arbitration not only with the subsidiary, but with Oracle itself. Although Sarhank had an arbitration agreement with the subsidiary, Oracle had never signed such an agreement. The arbitrators (under Egyptian law) found that Oracle was bound to arbitrate and rendered an award against both Oracle and the subsidiary. Sarhank sought to enforce the award in America under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Second Circuit held that it was not bound by the finding of the arbitrators as to whether Oracle was bound by the arbitration clause and found that the award could not be enforced as Oracle had not agreed to arbitrate. The decision can be found here.

I thought this was over. Well, Judge Guido Calabresi's remarks comparing Bush v. Gore to the use of legitimate institutions by fascist leaders is back in the news. The Second Circuit's Judicial Council has determined that the admonition he received for the remark by the chief judge was sufficient punishment. An article on this determination can be found here. This is old news. You'd think the Judicial Council would have something better (or at least more timely) to do.

Certified Question. The New York State Court of Appeals has answered a certified question regarding common law copyright under New York law of sound recordings produced prior to 1972 (at which date sound recordings became subject to statutory copyright). The decision in Capitol Records, Inc. v. Naxos of America, Inc. can be found here. C.E. Petit of Scrivener's Error has some comments on the case here.

New case for the Supremes? Occasionally, I will point out a Second Circuit case that I think might be picked up by the Supremes. The case of Abdul-Malik v. Hawk-Sawyer might be such a case, although procedurally it might not make the cut (if certiorari is even sought). The appeal was dismissed by the Second Circuit on the ground that it was meritless. But that's only Second Circuit precedent. The Court noted that there is a sharp dispute among the circuits and suggested congressional attention.

The question is how to treat prisoners sentenced first in federal and then in state court, and the phenomenon (in some circuits) that neither the state nor the federal court can run those sentences concurrently.

The decision can be found here.

Clarett appeal. The Supreme Court has denied certiorari in the Clarrett case, challenging the eligibility rules of the NFL. For more info, click here.

Cross-post. It's been a while since I've done a cross-post with this blog's sister blog, The FAPE Page, but another Second Circuit case in the area of special education law just came down. The Court, in Murphy v. Arlington Central School District Board of Education, has held that expert fees are compensable as costs under the Individuals with Disabilities Act, but that such fees will not generally be approved unless the application is accompanied by time records contemporaneously maintaned by the person performing the services. The decision can be found here.

Offer of judgment and mootness. Trans Union, L.L.C. issued a credit report about Peter McCauley that was incorrect and prevented him from getting a certain student loan. He had to borrow that money and accrued damages of $240. He sued Trans Union. Trans Union made an offer of judgment for the entire $240 plus court costs, but it was rejected. It moved for summary judgment, claiming that there was no longer any case or controversy between the parties. The District Court noted McCauley, at the time the offer was made, had potentially been entitled to punitive damages, but determined that he was no longer entitled to such damages (presumably because Trans Union was willing to pay) and that if Trans Union repeated its offer, and McCauley declined to accept it, another summary judgment could be made. Trans Union made another offer in the same amount. The offer stated that there was no admission of guilt and that the judgment should be confidential. McCauley rejected it and, upon a second summary judgment, the Court dismissed the case. McCauley appealed the case pro se and won. The Court held that the dismissal made no sense. Trans Union admitted that it owed McCauley $240. It made a conditional offer. McCauley was not obligated to agree to the conditions, but in not doing so, he wound up with nothing even the amount that Trans Union admitted it owed. The Court concluded that the rejected settlement offer did not moot the case so as to warrant judgment in favor of Trans Union. The Court remanded the case to the District Judge for the purpose of entering a default judgment. Both parties had agreed at oral argument that such a solution would satisfactorily resolve the case. The decision in McCauley v. Trans Union, L.L.P. can be found here.

Changing a copyrighted program. That's what Titleserv did to a program created by a former employee who left without signing over his copyrights. He told Titleserv that it could only use the program as is, but that did not stop Titleserv, since modifications were required to make the programs work. The employee sued for breach of copyright, and Titleserv moved for summary judgment, which was granted. On appeal, the Second Circuit affirmed, holding that, under 17 U.S.C. 117, it was entitled to adapt the programs because it was an owner of the programs, the copy was created as an essential step in the utilization of the computer program in conjunction with a machine and the program was ued in no other way. The decision in Krause v. Titleserv, Inc. can be found here.

Judge Frederic Block of the Eastern District of New York has asked the Second Circuit for guidance on a case where blacks were disproportionately excluded from a jury that convicted a man of three robberies. An article on this case (Anderson v. Superintendent) can be found in today's New York Law Journal. You may need a password to get the article. The decision can be found here.

Finality of Criminal Judgment. In Moshier v. United States, the Second Circuit held that a criminal judgment was final for purposes of the Anti-Terrorism and Effective Death Penalty Act of 1996 when the time for filing a direct appeal expires. The decision can be found here.

Supreme Court bound? I couple of posts ago, I blogged on the case of United States v. Doe. See that post for the details (or check the decision for the full details). I should note that, according to footnote 4 thereof, the decision is in conflict with a Seventh Circuit decsion and in sharp tension with decisions of the Eighth and D.C. Circuits. The Court stated: "We are mindful that uniformity among the circuits fosters predictability in the invocation of the privilege and supresses forum shopping. We are in no position, however, to resolve this tension in the law." Could this case be heading to the Supreme Court?

The Relitigation Exception. Woolsely had given up his parental rights to his child, and then changed his mind. The Texas Court had ruled in favor of the adoptive parents and against Woolsey. Woolsely had brought an action in the District Court of the Western District of Pennsylvania, seeking a declaratory judgment that his parental rights had been invalidly terminated and an order setting aside the adoption decree entered by the Texas court. The District Court dismissed the action as time barred. Woolsley later brought an action in a Connecticut court, seeking visitation rights and contending that the Texas decree was void. The Smiths, the adoptive parents, brought an action in federal courts, seeking damages for this vexatious litigation and for intentional infliction of emotional distress and sought an injunction to prevent Woolsley from further attempts to challenge the Texas decree. The District Court granted the injunction.

The Anti-Injunction Act generally prohibits federal courts from enjoining state court proceedings. There is a relitigation exception, which provides authority to federal courts to issue an injunction to protect its judgments from further litigation in state courts. In Smith v. Woosley, the Second Circuit stated that "the purposes of the relitigation exception -- precluding relitigation in state courts of issues determined by a federal court -- appears to be better served by allowing a district court that has subject matter and personal jurisdiction to issue an injunction that protects the judgment of another federal court than by forcing the litigants to a likely inconvenient forum for an identical result." The Court further noted that if one were to limit the relitigatiojn exception to courts that had entered the judgment rather than other federal courts, such a limitation on the exception would be one of venue, not subject matter jurisdiction. That objection had been waived by Woolsley's failure to object. The Court also asserted that the equities favored granting the injunction to the Smiths.

The last question was whether the Pennsylvania judgment was entitled to protection. The Pennsylvania court never reached the merits of the case, but dismissed the case on statute of limitatons grounds. In that the judgment left Woolsley with no forum to bring his claim (as the statute of limitations had appeared to have passed in all relevant jurisdictions), the relitigation exception applied. The Court, however, modified the injunction to allow Woolsley to bring an action in a forum whose statute of limitations had not paseed in which personal jurisdiction could be obtained over the Smiths and where he would otherwise be entitled to challenge the Texas decree. In other words, Woolsely lost.

The decision can be found here.

Is something going on? I've noticed that Findlaw has not been updating its Second Circuit opinions since mid-February. And ever since the Second Circuit News blog disappeared (for no reason that I can find), the only place to find Second Circuit opinions is on the Second Circuit website. That would be OK, except that when you link to an opinion, you don't seem to get the URL for the opinion. The address, at least on my computer, remains the general Second Circuit website URL. If anyone knows another way to get cites to Second Circuit opinions, please let me know.

Governmental attorney-client privilege. A federal grand jury subpoenaed the testimony of Anne C. George, the former chief legal counsel to the Office of the Governor of Connecticut. The investigation regarded possible criminal violations by Connecticut public officials and employees and by private parties with whom the state had done business. The grand jury was seeking to obtain testimony about the contents of confidential communications between Ms. George and the governor and members of his staff. The district court entered an order compelling Ms. George to testify, holding that in that the testimony was necessary to the grand jury, the governmental attorney-client privilege must yield because the interests served by the grand jury's fact-finding process outweigh the interest served by the privilege. The Second Circuit reverse, holding that the attorney-client privilege applied and refused to fashion a balancing test or otherwise establish a rule whereby a generalized asserton of privilege must yield to the demonstrated, specific need for evidence. The decision in United States v. Doe can be found at the Second Circuit website. I will try to get you a better site at a later date.

Here's an interesting article on the Second Circuit's reaction to the Supreme Court's sentencing guideline cases.

Off-topic, but interesting. Justice Doris Ling-Cohan has issued an order, holding that a provision of New York law, forbidding same-sex marriage is unconstitutional under the New York constitution, although the effect of the order is stayed for 30 days so that New York City can appeal, which it will. A copy of the decision can be found here. It's not about the Second Circuit, but it's darn interesting. (And it's 62 pages!)

No appeal from a magistrate judge's order. Mathew J. Harrison pleaded guilty of conspiring to distribut marajuana. After the plea, the district judge assigned him counsel and released him on $5,000 bond with certain conditions of release. Harrison broke these conditions on several occasions. Because of these violations, the magistrate judge revoked his bail. Harrison made three separate motions for reconsideration to the magistrate judge, which were denied. Harrison filed a notice of appeal from the magistrate judge's detention order. The Court noted that a magistrate judge's ruling on bail is not final and cannot be appealed to the Court of Appeals because it is subject to review by the district court. Hence, the Second Circuit lacked jurisdiction to hear the case and dismissed the appeal. The case in United States v. Harrison can be found here. What surprises me is that Harrison's attorney did not seem to know that he should have seen review from the district court first.

New rule. The Second Circuit is putting out a new rule requiring the filing of briefs in PDF form. For more information on the proposed rule, which will not be effective until after a public comment period, click here.

Rescission Statute. An insured brought an action against its insurer, challenging the latter's rescission of her disability insurance policy within the six-year limitations period. The District Court dismissed the case based on a provision that provided that an insured could only bring an acton within three years on legal challenged to denied proofs of claim. The Second Circuit held that this provision had no applicability in this case. Terry v. Unum Life Insurance Co. can be found here.

Habitual residence. When one parent kidnaps a child from one country to another, the non-kidnapping party can get the child back to the child's "habitual residence" to decide all child custody issues by invoking the Hague Convention on the Civil Aspects of International Child Abduction, providing the relevant countries are parties to the treaty. In order to invoke the treaty, it must be shown the location of the habitual residence of the child. This term is not decided in the treaty, and in Gitter v. Gitter, the Second Circuit provided the factors that must be considered in making such a decision. First, the intent of the parents must be considered. However, that is not dispositive. The Court must also look to evidence that unequivocally points to the child having acclimatized to another country. The District Court had decided that the United States, not Israel was the habitual residence of the child based on the first factor, but did not consider the second factor. Based on that, the Second Circuit remanded the case for reconsideration by the District Court. The decision can be found here.

Correction. A few days ago, I noted that the On Appeal blog was the same as the Appellate Law and Practice blog. I got two e-mails informing me that I was wrong. The Appellate Law and Practice blog can be found here. It's nice to know that someone is reading.

Crawford Not retroactive. The New York Law Journal has written an article on the retoractivity of the Crawford case. The article can be found here (and I don't think you have to be a subscriber).

New blog. Check out John Derrick's new blog on appellate practice, On Appeal. You can find it here. Enjoy it!

UPDATE: I see that it is actually an update of the Appellate Law and Practice blog that has been listed for a few months on my bloglist and has moved off of blogspot. I'll make the change on my bloglist. You can still enjoy it.

Breach of Duty of Good Faith and Fair Dealing -- Not enough. Sterling National Bank breached its duty of good faith and fair dealing to National Market Share, Inc. by failing to honor approximately $800,000 in payroll checks. However, it was National Market's Share's faithless principal who had caused the company to go out of business. Hence, the bank was only ordered to pay nominal damages of $1. The Second Circuit affirmed. The decision in National Market Share, Inc. v. Sterling National Bank can be found here.