FindLaw Opinion Summaries - 2nd Circuit COA

Moore v. Delaware, No. 08-2426

2009-11-04T23:19:47Z

In a motion for costs by the prevailing party in an appeal, the motion is denied where, while an award of costs to a prevailing party pursuant to Rule 39 is customary, the court retained discretion to deny costs when, in the exercise of its discretion, it determines taxation is not appropriate, and equitable considerations militated against taxing costs.

Read Moore v. Delaware, No. 08-2426

Appellate Information

Argued June 17, 2009

Decided July 27, 2009

Judges

Per Curiam

Counsel

For Appellee:

Frank W. Miller, The Law Firm of Frank W. Miller, East Syracuse, NY

For Appellants:

Catherine E. Stuckart, Binghamton, NY

Arar v. Ashcroft, No. 06-4216

2009-11-04T23:16:04Z

In an action under the Torture Victim Protection Act and the Fifth Amendment based on plaintiff's detention at a U.S. airport and subsequent removal to and alleged torture in Syria, the dismissal of the complaint is affirmed where 1) plaintiff insufficiently pleaded that the alleged conduct of defendant U.S. officials was done under color of Syrian law; and 2) in the context of extraordinary rendition, allowing a Bivens action against policymaking federal officials would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.

Read Arar v. Ashcroft, No. 06-4216

Appellate Information

In Banc Rehearing: December 9, 2008

Decided: November 2, 2009

Judges

Opinion by Judge Jacobs

Dissents by Judge Calabresi, Judge Pooler, Judge Sack and Judge Parker

Counsel

For Appellant:

David Cole, Maria Couri LaHood, Jules Lobel, Katherine Gallagher, Center for Constitutional Rights, New York, NY

For Appellees:

Jonathan F. Cohn, Larry Lee Gregg, R. Joseph Sher, Dennis C. Barghaan, Assistant United States Attorneys, U.S. Department of Justice, Washington, DC

US v. Byors, No. 08-4811

2009-10-29T23:15:57Z

Defendant's mail fraud sentence is affirmed where: 1) a defendant is not entitled to an offset against a loss based on business expenses that confer no benefit upon the victims; and 2) Application Note 2(C) to section 2S1.1 of the Sentencing Guidelines does not preclude an enhancement for obstruction of justice pursuant to section 3C1.1 of the Guidelines where a defendant's obstruction relates to an offense underlying a money laundering offense, but not to the money laundering offense itself.

Read US v. Byors, No. 08-4811

Appellate Information

Argued: October 9, 2009

Decided: October 29, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Bradley S. Stetler, Stetler, Allen & Kampmann, Burlington, VT

For Appellee:

Gregory L. Waples, Assistant United States Attorney, District of Vermont, Burlington, VT

Gross v. Rell, No. 08-2626

2009-10-28T18:09:11Z

In a 42 U.S.C. section 1983 action alleging that the state unlawfully established an involuntary conservatorship over plaintiff, dismissal of the complaint is affirmed in part where the judge responsible for the conservatorship did not act in the clear absence of subject matter jurisdiction, and he was not aware of the defects in personal jurisdiction, making judicial immunity appropriate. However, as to the issue of quasi-judicial immunity under Connecticut law, the court certified the following question to the Connecticut Supreme Court: What is the role of conservators, court-appointed attorneys for conservatees, and nursing homes in the Connecticut probate court system, in light of the six factors for determining quasi-judicial immunity outlined in Cleavinger v. Saxner, 474 U.S. 193, 201-02 (1985)?

Read Gross v. Rell, No. 08-2626

Appellate Information

Argued: May 20, 2009

Question Certified: October 27, 2009

Judges

Opinion by Judge Straub

Counsel

For Appellant:

Sall R. Zanger, Connecticut Legal Rights Project, Inc., Middletown, CT

For Appellees:

Gregory T. D'Auria, Jane R. Rosenberg, Clare Kindall, Associate Attorneys General, Hartford, CT

US v. Williams, No. 08-5151

2009-10-28T18:03:36Z

Defendant's firearm possession conviction is vacated where the district court erred by admitting evidence that defendant had been in an apartment from which weapons and drugs were later recovered.

Read US v. Williams, No. 08-5151

Appellate Information

Argued: September 25, 2009

Decided: October 27, 2009

Judges

Opinion by Judge McLaughlin

Counsel

For Appellant:

Donald Yanella, New York, NY

For Appellee:

Justin D. Lerer, Jo Ann M. Navickas, Assistant United States Attorneys, Brooklyn, NY

Contreras-Salinas v. Holder, No. 08-4611

2009-10-28T17:58:42Z

In a petition for review of a BIA order removing petitioner from the U.S., the petition is denied where, because petitioner challenged a determination committed to the sole discretion of the Attorney General -- namely, the credibility and weight accorded to certain evidence -- the court of appeals lacked jurisdiction to review her claims.

Read Contreras-Salinas v. Holder, No. 08-4611

Appellate Information

Argued: October 8, 2009

Decided: October 27, 2009

Judges

Per Curiam

Counsel

For Appellant:

Glenn T. Terk, Wethersfield, CT

For Appellee:

Russell J.E. Verby, Michael F. Hertz, Barry J. Pettinato, Office of Immigration Litigation, United States Department of Justice, Washington, DC

Aguas Lenders Recovery Grp. LLC v. Suez, S.A., No. 08-1589

2009-10-23T22:17:42Z

In an action to recover on a defaulted loan, dismissal of the action on forum non conveniens grounds is reversed where a non-signatory to an agreement may be bound by a forum selection clause and forum non conveniens waiver contained in contracts entered into by an entity alleged to be a predecessor in interest.

Read Aguas Lenders Recovery Grp. LLC v. Suez, S.A., No. 08-1589

Appellate Information

Argued: April 15, 2009

Decided: October 23, 2009

Judges

Opinion by Judge Winter

Counsel

For Appellant:

Jennifer R. Scullion, Louis M. Solomon, Daniella M. Rudy, Proskauer Rose LLP, New York, NY

For Appellee:

John J. Kerr, Jr., Simpson Thatcher & Bartlett LLP, New York, NY

Leibowitz v. Cornell Univ., No. 07-4567

2009-10-23T22:02:32Z

In a gender and age discrimination action by an employee of a university, summary judgment for defendants is affirmed in part where plaintiff failed to produce evidence of an express or implied contract to continue her employment. However, the order is reversed in part where: 1) in the circumstances here, a non-renewal of an employment contract itself was an adverse employment action and the district court erred in requiring plaintiff to show the existence of an unofficial tenured position to satisfy the adverse action requirement; and 2) the circumstances surrounding the non-renewal of her contract gave rise to an inference of age or gender discrimination.

Read Leibowitz v. Cornell Univ., No. 07-4567

Appellate Information

Argued: February 27, 2009

Decided: October 23, 2009

Judges

Opinion by Judge Bianco

Counsel

For Appellant:

David M. Marek, Jeffrey L. Liddle, Liddle and Robinson, LLP, New York, NY

For Appellees:

Wendy E. Tarlow, Nelson E. Roth, Valerie Cross Dorn and Norma W. Schwab, Cornell University, Ithaca, NY

ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. 08-0838

2009-10-22T23:05:32Z

In an appeal from the district court's order vacating a maritime attachment, the order is affirmed where both the party that attached the funds and the party that owned the funds were present in another jurisdiction.

Read ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. 08-0838

Appellate Information

Argued: March 12, 2009

Decided: October 22, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

John Sullivan, Andrew R. Brown, Hill Rivkins & Hayden LLP, New York, NY

For Appellees:

John Orzel, Vincent M. DeOrchis, DeOrchis & Partners, LLP, New York, NY

Green v. Mattingly, No. 08-4636

2009-10-21T23:29:22Z

In an action claiming that defendants violated the U.S. Constitution and New York law when they successfully petitioned the family court of New York for an order temporarily removing plaintiff's child from her custody, dismissal of the action is vacated in part where: 1) the family court issued a superseding order returning plaintiff's child to her custody, and the family court proceedings were eventually dismissed, so plaintiff was not a "state-court loser" under the Rooker-Feldman doctrine; and 2) in addition, her claims did not "invite district court review and rejection" of a state court judgment. However, the dismissal is affirmed in part where plaintiff failed to allege that the family court proceeding was terminated in her favor and thus did not state a malicious prosecution claim.

Read Green v. Mattingly, No. 08-4636

Appellate Information

Argued: October 7, 2009

Decided: October 21, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY

For Appellees:

Tahirih M. Sadrieh, Edward F.X. Hart and Elizabeth A. Wells, New York, NY

US v. Bell, No. 08-5506

2009-10-21T17:33:57Z

In the government's appeal from the district court's order granting a new trial in an attempted murder prosecution, the order is reversed where the district court erred in ordering a new trial because: 1) the district court's jury instructions on intentional conduct were legally correct and did not constitute plain error warranting a new trial; 2) the district court's use of a general verdict form was not plain error and thus not a basis for ordering a new trial; 3) the district court rested its decision to grant a new trial on clearly erroneous factual findings; and 4) the district court failed to evaluate the entire trial record in ruling on defendant's motion for a new trial.

Read US v. Bell, No. 08-5506

Appellate Information

Argued: October 7, 2009

Decided: October 20, 2009

Judges

Per Curiam

Counsel

For Appellant:

Tracy Lee Dayton, Michael J. Gustafson, Nora R. Dannehy, William J. Nardini, Assistant United States Attorneys, Office of the United States Attorney for the District of Connecticut, Hartford, CT

For Appellee:

John R. Gulash, Gulash & Riccio, Bridgeport, CT, for Appellee.

Schaghticoke Tribal Nation v. Kempthorne, No. 08-4735

2009-10-19T23:07:57Z

In a petition under the Administrative Procedure Act challenging the Department of the Interior's determination not to acknowledge the "tribal existence" of a purported Indian tribal nation, summary judgment for defendants is affirmed where: 1) the evidence presented by the tribe was insufficient to raise a claim of "improper political influence" under the standard set forth in Town of Orangetown v. Ruckelshaus, 740 F.2d 185 (2d Cir. 1984); and 2) the Department's determination did not violate the Vacancies Reform Act.

Read Schaghticoke Tribal Nation v. Kempthorne, No. 08-4735

Appellate Information

Argued: October 8, 2009

Decided: October 19, 2009

Judges

Per Curiam

Counsel

For Appellant:

Richard Emanuel, David K. Jaffe, Brown Paindris & Scott, P.C., Branford, CT

For Appellees:

John B. Hughes, Assistant United States Attorney, District of Connecticut, Hartford, CT

Lonecke v. Citigroup Pension Plan, No. 08-0459

2009-10-19T23:00:35Z

In an ERISA action claiming that defendant's benefit plan violated ERISA's minimum benefit accrual rules, partial summary judgment for plaintiffs is reversed where the plan complied with ERISA's minimum benefit accrual rules, and defendant did not violate ERISA's section 204(h) notice requirements.

Read Lonecke v. Citigroup Pension Plan, No. 08-0459

Appellate Information

Argued: March 20, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Wesley

Counsel

For Appellants:

Myron D. Rumeld, Proskauer Rose LLP, New York, NY

Lewis R. Clayton, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY

For Appellees:

Edgar Pauk, Law Office of Edgar Pauk, Esq., Brooklyn, NY

Brad Nelson Friedman, Milberg LLP, New York, NY

US v. McCallum, No. 08-0322

2009-10-19T22:38:31Z

Defendant's drug distribution convictions are affirmed where the district court abused its discretion in admitting as similar acts evidence two of his prior narcotics convictions, but the error was harmless.

Read US v. McCallum, No. 08-0322

Appellate Information

Argued: August 7, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Parker

Counsel

For Appellant:

Joseph A. Vita, Law Office of Joseph A. Vita, Esq., Port Chester, NY

For Appellee:

Nola B. Heller, Assistant United States Attorney, New York, NY

AMW Materials Testing, Inc. v. Babylon, No. 08-1731

2009-10-19T22:26:03Z

In an action under the Comprehensive Environmental Response, Compensation and Liability Act to recover hazardous material cleanup costs, judgment for defendants is affirmed where: 1) defendants were not "operators" of the facility at issue at the time the hazardous materials at issue were released; and 2) emergency response actions pursuant to 42 U.S.C. section 9607(d)(2) cannot constitute an affirmative defense to section 9607(a) liability.

Read AMW Materials Testing, Inc. v. Babylon, No. 08-1731

Appellate Information

Argued: August 7, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Raggi

Counsel

For Appellants:

Joan M. Ferretti, Robert M. Lustberg, Lustberg & Ferretti, Glens Falls, NY

For Appellees:

Richard F. Ricci, Priya Rebecca Masilmani, Lowenstein Sandler PC, Roseland, NJ