Senior Judge Joseph McLaughlin

Second Circuit Senior Judge Joseph McLaughlin died on August 8, 2013 at age 80.  The Judge was appointed to the bench by Ronald Reagan in 1981 as a district judge of the Eastern District of New York and was elevated to the Second Circuit by George H.W. Bush.

More certified questions -- Turnover order

The Second Circuit has certified two questions to the New York Court of Appeals. The questions are:

(1) May a court issue a turnover order pursuant to N.Y. CPLR § 5225(b) to an entity that does  not have actual possession or custody of a debtor’s assets, but whose subsidiary might  have possession or custody of such assets?

(2) If the answer to the above question is in the affirmative, what factual considerations
should a court take into account in determining whether the issuance of such an order is
 permissible?

The decision in Commonwealth of the Northern Marina Islands v. Canadian Imperial Bank of Commerce can be found here.

Certified Question -- Coverage for Replacement Costs

The Second Circuit has certified a question to the New York State Court of Appeals.  The question is:

If a fire insurance policy contains (1) a provision allowing reimbursement of replacement costs only after the property was replaced and requiring the property to be replaced "as soon as reasonably possible after the loss"; and (2) a provision requiring an insured to bring suit within two years after the loss; is an insured covered for replacement costs if the insured property cannot reasonably be replaced within two years?

The decision is Executive Plaza, LLC v. Peerless Insurance Co. can be found here.

Oy!

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.  The Court noted that the motion for reinstatement did not "append to it  appellant’s proposed brief or an appropriately detailed statement
demonstrating that the appeal is meritorious. Indeed, it does  not even mention the merits of the appeal, an important factor in  determining whether reinstatement of an appeal is appropriate. "  This is another "don't let this happen to you" case.

The decision in RLI Insurance Co. v. JDJ Marine, Inc. can be found here.

Smokers' Right to Medical Monitoring

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. Philip Morris USA, Inc. can be found here.

Political Committee

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.  The effect of being a political committee was that it would, among other things, be required to disclose contributions received and expenditures made.  NOM stated that it would not engage in its speech-related activities (opposing same-sex marriage) unless the requested relief was granted  The District Court dismissed the complaint for lack of jurisdiction, holding that NOM had not sought to ascertain its status with Board of Election nor had the Board of Elections attempted to enforce the "political committee" provision against NOM.

The Second Circuit reversed, holding that the case was ripe because NOM had a reasonable basis to conclude that it might be deemed a political committee under the statute, chilling its free speech rights and there was no prudential reason to abstain.  The Court further held that the case was not moot; although the election cycle had passed, the case fell in the category of cases "capable of repetition, yet evading review."  The Court vacated the District Court's determination that it lacked jurisdiction and remanded the case for further proceedings.

Judge Jon O. Newman dissented, stating that a determination on the merits is not appropriate until the Board of Elections determines whether NOM is a political committee.

The decision in National Organization for Marriage, Inc. v. Walsh can be found here.

First Sale Doctrine -

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

Certified Question in Gun Case

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.  The relevant statute was understood to require a domicile in New York.  The individual brought an action, asserting that to the extent that the gun licensing statute prevented him from having a license, it was unconstitutional.  The District Court granted summary judgment to the State, dismissing the action.  On appeal, the Second Circuit declined to rule and certified the following question to the New York State Court of Appeals:


Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?

The decision in Osterweil v. Bartlett can be found here.

Strict Compliance

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.  The District Court held that this was excusable neglect, warranting an opportunity to file a late notice.  The Second Circuit reversed.

The Court noted that it was the responsibility of the attorney to update the system in the ECF system and not the responsibility of the ECF stafff.  Hence, the failure to receive notice was solely the fault of the attorney, and the District Court has abused its discretion in extending the party's time to file a notice of appeal.

Judge Lynch dissented from the decision, stating the the Court should have deferred to the judgment of the District Court.

The decision in In re Worldcom, Inc. (Communications Network International, Ltd. v. MCI WorldCom Communications can be found here.

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.  A subsidiary question of whether "malicious damage" may be found to result from an act not directed specifically at the insured property is critical to the resolution of the issue.  Because that question had not been decided by the New York State Court of Appeals and because the Second Circuit believed that that Court should have the opportunity to address taht issue, the Second Circuit has certified that question for decision to the New York State Court of Appeals.

The decision in the case can be found here.

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. The individuals moved to dismiss, in part, on the ground of qualified immunity. The Court denied the motion on that ground, but dismissed as to certain of the individuals on the ground that the plaintiff had failed to state a valid cause of action against them. After the motion (and the death of one of the defendants), only three of the individuals remained in the action. The remaining individuals filed a notice of appeal within the 30-day period, however, the notice of appeal stated that it was Nassau County, which was not a party to the action, that was appealing. After the 30-day period for filing a notice of appeal had passed, an amended notice of appeal, properly naming all of the individuals – both those who had been dismissed and those who had not -- as the appealing parties was filed. The Second Circuit dismissed the appeal for lack of jurisdiction. The notice of appeal did not meet the requirements of Rule 3(c)(1)(A), which requires a notice of appeal to specify who is taking the appeal. The Court found that the notice of appeal did not meet the requirement of the rule.

Interestingly, the Court's opinion does not list the name of the attorneys involved.

The decision in this case can be found here.








It is interesting that the opinion, unlike most Second Circuit opi

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.  The Circuit Court agreed and held that competitive cheer leading is not a sport and, accordingly, the existence of Quinnipiac's varsity competitive cheer leading squad should not be considered in determining whether Quinnipiac had been discriminating against women in providing athletice opportunities.

The decision in Biediger v. Quinnipiac University can be found here.

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.

The decision in Bayereische Landesban v. Aladin Capital Mangement can be found here.

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.  The protesters brought an action under 42 U.S.C. 1983, claiming that the police had violated their First and Fourth Amendment rights.  The District Court granted summary judgment to the Police, and the Second Circuit affirmed, claiming that what was involved was a valid time, place and manner restriction.

The decision in Marcavage v. City of New York can be found here.

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.  I'm not sure I totally agree with it, but this op-ed piece, which rails against judicial opinions being written by law clerks should be of interest to those interest in the appellate procedure.

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." The Second Circuit, however, agreed with the Board of Immigrations Appeals on its holding that de novo review applies to the ultimate question of whether the applicant for asylum has sustained her burden to establish that her subjective fear of persecution is objectively reasonable. The Court stated: "What the law's legal construct of a reasonable person would believe or do under the particular circumstances of a case is normally a question of law, the decision of which is reviewed de novo.

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

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

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. The defendant took the position that incarceration should be seen as withdrawal from the conspiracy. The Court held that withdrawal from a conspiracy required an affirmative act; cessation from participation in the conspiracy was not enough. Accordingly, the defendant, because he had not shown any affirmative act constituting withdrawal, had not withdrawn from the conspiracy, and the entire loss caused by the conspriacy was imputable to him for purposes of sentencing.

The decision in this case can be found here.

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 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. Does Va. Code Ann. 8.01-229(E)(1) permit tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction?

In Casey v. Merck & Co., the plaintiffs had filed a products liability claims that were governed byVirginia law after the limitations period had elapsed, but argued that the statute should have been tolled because of the existence of a class action asserting the same claims in Tennessee under the doctrine of American Pipe & Constr. Co. v. Utah. The plaintiffs claimed that Virginia recognized this doctrine. The Second Circuit felt unsure of this issue and certified the questions. The decision in Casey can be found here.