Articles Posted in Civil Procedure

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A jury found William Scully guilty of mail and wire fraud and conspiracy to commit mail and wire fraud, conspiracy to defraud the United States through the introduction of misbranded drugs into interstate commerce, introduction of misbranded drugs into interstate commerce, receipt of misbranded drugs into interstate commerce and delivery thereof for pay, introduction of unapproved drugs into interstate commerce, and unlicensed wholesale distribution of prescription drugs. He was sentenced principally to 60 months in prison. The main issue on appeal was whether the district court properly excluded evidence relating to Scully’s advice-of-counsel defense. Because the Second Circuit found that the evidence was admissible and its exclusion was not harmless error, it vacated the district court’s judgment and remanded for further proceedings. View "United States v. Scully" on Justia Law

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Judgment creditors of the Islamic Republic of Iran and Iran's Ministry of Intelligence and Security sought to enforce underlying judgments obtaining the turnover of $1.68 billion in bond proceeds allegedly owned by Bank Markazi. The Second Circuit held that the settlement agreements released plaintiffs' non-turnover claims with respect to some but not all of the banks; the assets at issue were in fact located abroad, but that those assets may nonetheless be subject to turnover under state law pursuant to an exercise of the court's in personam jurisdiction, inasmuch as the district court has the authority under New York State law to direct a non‐sovereign in possession of a foreign sovereignʹs extraterritorial assets to bring those assets to New York State; and those assets will not ultimately be subject to turnover, however, unless the district court concludes on remand that such in personam jurisdiction exists and the assets, were they to be recalled, would not be protected from turnover by execution immunity. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings. View "Peterson v. Islamic Republic of Iran" on Justia Law

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Plaintiff filed suit against defendant, alleging that defendant, who had power of attorney over plaintiff's finances, stole millions of dollars from him through fraudulent financial schemes. The district court granted defendant's motion to dismiss the complaint on the ground that plaintiff failed to allege a domestic injury as required by RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016). The Second Circuit held that, to the extent plaintiff alleged injuries to property located within the United States, he satisfied the Racketeer Influenced and Corrupt Organizations Act's, 18 U.S.C. 1964(c), domestic injury requirement. But to the extent plaintiff alleged injuries to property located outside of the United States, the fact that defendant or his co‐defendants transferred those stolen funds to (or through) the United States fails to transform an otherwise foreign injury into a domestic one. Accordingly, the court reversed in part, vacated in part, and remanded. View "Yarur Bascunan v. Yarur Elsaca" on Justia Law

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The Second Circuit granted leave to file a petition for 28 U.S.C. 1292(b) review. At issue was whether petitioners' notice of appeal, which was filed within ten days of the district court's order sought to be reviewed, was the functional equivalent of a section 1292(b) petition to invoke the court's jurisdiction over a later filed petition. The court held that, under all the circumstances of this case, the timely filed notice of appeal was sufficient to invoke the court's appellate jurisdiction over the section 1292(b) petition. View "Yu v. Hasaki Restaurant, Inc." on Justia Law

Posted in: Civil Procedure

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Plaintiff filed suit against defendants, alleging willful violations of the Fair and Accurate Credit Transactions Act of 2003 (FACTA), 15 U.S.C. 1681c(g). Section 1681c(g) seeks to reduce the risk of identity theft by, among other things, prohibiting merchants from including more than the final five digits of a customer’s credit card number on a printed receipt. The Second Circuit affirmed the district court's dismissal of plaintiff's second amended complaint for lack of subject matter jurisdiction. The court held that the parties' factual disagreement as to whether printing the first six digits constituted a material risk of harm was a question of fact even at the Rule 12(b)(1) motion‐to‐dismiss stage, and so the court reviewed the district court's finding for clear error. On the basis of the record and plaintiffs' affirmative burden to establish subject matter jurisdiction by a preponderance of the evidence, and informed by the findings of other district courts as to this specific issue, the court concluded that the district court's findings were not clearly erroneous. The court held, however, that a complaint must be dismissed without prejudice where the dismissal was due to the court's lack of subject matter jurisdiction. Therefore, the court remanded so that the district court may amend the judgment and enter the dismissal without prejudice. View "Katz v. The Donna Karan Company, LLC" on Justia Law

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Discovery sought pursuant to 28 U.S.C. 1782 is for use in a proceeding in a foreign or international tribunal where the applicant is a crime victim authorized to submit the discovery to the foreign tribunal, but is not making a claim for damages therein. The Second Circuit also held that an applicant that lawfully has obtained discovery under Section 1782 as to one foreign proceeding may use that discovery in other foreign proceedings. Accordingly, the court affirmed the district court's order granting petitioners' application for discovery in aid of foreign litigation under Section 1782. View "Bouvier v. Adelson" on Justia Law

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Vera sued the Republic of Cuba for the extrajudicial killing of his father in 1976. In 2008, Vera obtained a default judgment against Cuba in Florida state court, relying on the “terrorism exception” to sovereign immunity, 28 U.S.C. 1605A(a)(1). Vera then secured a default judgment against Cuba in a U.S. District Court in New York, which granted full faith and credit to the Florida judgment. Vera served information subpoenas on the New York branches of various foreign banks, including BBVA, which refused to comply with the subpoena’s request for information regarding Cuban assets located outside the U.S. BBVA moved to quash the subpoena, contending that Vera’s judgment was void for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. 1602. The Second Circuit reversed in favor of BBVA. The district court lacked subject matter jurisdiction over Vera’s action against Cuba because Cuba was not designated a state sponsor of terrorism at the time Vera’s father was killed. Vera failed to establish that Cuba was designated a state sponsor of terrorism as a result of his father’s death. The FSIA’s terrorism exception to sovereign immunity—the only potential basis for subject matter jurisdiction— did not apply. Cuba was immune from Vera’s action. View "Vera v. Republic of Cuba" on Justia Law

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In 2015, Swain was fired from his job with Hermès managing the company’s New Jersey boutique at the Mall at Short Hills. Swain, a New Jersey resident, sued Hermès in New Jersey state court, asserting claims under New Jersey state law for discrimination and hostile work environment on the basis of sexual orientation, retaliation, and breach of contract. Swain named Hermès, and Bautista, who worked with Swain at the Short Hills Hermès store, as defendants. Asserting federal jurisdiction based on diversity of citizenship, Hermès filed a petition in federal district court to compel arbitration under Federal Arbitration Act section 4, naming Swain as the only respondent and citing a dispute resolution protocol that he had allegedly signed. The Second Circuit affirmed, in favor of Hermès. Swain did not contest the arbitrability of his dispute or that Swain and Hermès were citizens of different states. The court rejected Swain’s argument that it should “look through” the petition to the underlying dispute, as defined in Swain’s New Jersey lawsuit, and conclude that complete diversity is lacking because Swain and Bautista, who is adverse to Swain in his state court litigation in New Jersey, are both citizens of that state. View "Hermès of Paris, Inc. v. Swain" on Justia Law

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The Second Circuit vacated the district court's determination that plaintiff asserted claims only under federal law, its dismissal of claims against the individual defendants, and its dismissal of plaintiff's hostile work environment claim. At issue in this appeal was whether a pro se litigant forfeits her claims under New York state and local discrimination law where she has alleged facts supporting such claims, but fails to check a blank on a form complaint indicating that she wishes to bring them. The court held that such a bright-line rule runs counter to the court's policy of liberally construing pro se submissions, and that plaintiff's complaint in this case should have been read by the district court to assert claims under New York state and local discrimination law as well as under federal law. The court addressed the balance of plaintiff's claims on appeal in a summary order issued simultaneously with this opinion, and remanded for further proceedings. View "McLeod v. The Jewish Guild for the Blind" on Justia Law

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Plaintiff filed suit after the county refused to return her longarms that had been seized in connection with a New York Family Court temporary order of protection issued against her, even though the order was no longer in effect. The Second Circuit held that, because the litigation had not terminated on the merits, the district court's order was not final, and thus not appealable under 28 U.S.C. 1291. However, under 28 U.S.C. 1292, the the court had jurisdiction to review the district court's grant of injunctive relief. The court held, consistent with the district court's decision in the instant case, and the decision in Razzano v. Cty. of Nassau, 765 F. Supp. 2d 176, 180 (E.D.N.Y. 2011), that persons in plaintiff's situation were entitled to a prompt post-deprivation hearing under the four conditions set forth by the district court in this case and in Razzano. Accordingly, the court affirmed the order insofar as it granted plaintiff an injunction and directed the County to hold a post-deprivation hearing. The court dismissed in all other respects. View "Panzella v. Sposato" on Justia Law