Split Second Circuit Panel Upholds Federal Judicial Power to Appoint Special Prosecutor Under Fed. R. Crim. P. 42(a) to Press Criminal Contempt

In United States v. Donziger, No. 21-2486 (2d Cir. June 23, 2022), a 2-1 panel majority turns back constitutional challenges to the district court’s power under the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, and Fed. R. Crim. P. 42(a) to appoint special prosecutors in a criminal contempt case. The appeal arisesContinue reading “Split Second Circuit Panel Upholds Federal Judicial Power to Appoint Special Prosecutor Under Fed. R. Crim. P. 42(a) to Press Criminal Contempt”

Plaintiffs’ “Mad-Libs-Style Complaints” Alleging Americans with Disabilities Act Violations Lacked Plausible Grounds for Article III Standing, Holds Split Second Circuit Panel

In Calcano v. Swarovski N.A. Ltd., No. 20-1552 (2d Cir. June 2, 2022), a 2-1 panel of the Second Circuit holds—in a case involving four blind plaintiffs—that a template complaint used by a law firm in scores of ADA public-accommodation cases that it filed lacked enough in the way of facts to plausibly allege anContinue reading “Plaintiffs’ “Mad-Libs-Style Complaints” Alleging Americans with Disabilities Act Violations Lacked Plausible Grounds for Article III Standing, Holds Split Second Circuit Panel”

Second Circuit Holds That Younger Abstention Does Not Apply to State Probate Court Order Concerning the Validity of a Lien

In Cavanaugh v. Geballe, No.21-571 (2d Cir. Mar. 17, 2022), the Second Circuit holds that the district court erred by abstaining under the doctrine established in Younger v. Harris, 401 U.S. 37 (1971), from hearing a due process challenge to a statutory lien on plaintiff’s inheritance and grandmother’s estate. The panel holds that a stateContinue reading “Second Circuit Holds That Younger Abstention Does Not Apply to State Probate Court Order Concerning the Validity of a Lien”

Second Circuit Holds That Under Hanna v. Plumer, Federal Rather Than State Expert Witness Rules Apply in Diversity Tort Case

In Sarkees v. E. I. DuPont de Nemours and Co., No. 20-3170 (2d Cir. Oct. 6, 2021), the Second Circuit reverses summary judgment in negligence, strict products liability, and loss of consortium action on the ground that the district court erroneously excluded the plaintiff’s expert witness by applying state-law admissibility rules rather than the FederalContinue reading “Second Circuit Holds That Under Hanna v. Plumer, Federal Rather Than State Expert Witness Rules Apply in Diversity Tort Case”

Second Circuit Holds That States Have Standing to Challenge Cap on SALT Tax Deduction Because of Lost Local Tax Revenue

In New York v. Yellen, No. 19-3962 (2d Cir. Oct. 5, 2021), the Second Circuit holds that four states had standing to challenge the $10,000 cap on the federal income tax deduction for money paid in state and local taxes (SALT) because of the impact on local real estate sales and consequent lost tax revenue.Continue reading “Second Circuit Holds That States Have Standing to Challenge Cap on SALT Tax Deduction Because of Lost Local Tax Revenue”

Properly Served Defendant Cannot Cure Its Failure to Timely Consent to a Removal Petition Under 28 U.S.C. § 1446(b) by Joining the Opposition to a Motion to Remand, Holds Second Circuit

In Taylor v. Medtronic, Inc., No. 20-742 (2d Cir. Sept. 30, 2021), the Second Circuit holds the defendants to the strict requirements 28 U.S.C. § 1446(b), holding that a defendant that erroneously believed it was not properly served could not retroactively consent to a removal petition after the statutory 30 days by joining the otherContinue reading “Properly Served Defendant Cannot Cure Its Failure to Timely Consent to a Removal Petition Under 28 U.S.C. § 1446(b) by Joining the Opposition to a Motion to Remand, Holds Second Circuit”

Second Circuit Rejects Attempt to Blow Up 16-Year-Old “Gag Order” Under Fed. R. Civ. P. 60(b)(4)

In SEC v. Romeril, No. 19-4197 (2d Cir. Sept. 27, 2021), the Second Circuit affirms a decision not to vacate a 2003 consent judgment between a corporate CFO and the Securities and Exchange Commission because the defendant “does not allege a defect that would permit relief under Rule 60(b)(4).” Rule 60(b)(4) authorizes courts to “relieveContinue reading “Second Circuit Rejects Attempt to Blow Up 16-Year-Old “Gag Order” Under Fed. R. Civ. P. 60(b)(4)”

Split Second Circuit Panel Holds That District Court Erred by Admitting “Opinion” Testimony that Defendant “Employed Countersurveillance Driving Techniques,” Ordering New Trial

In United States v. Cabrera, No. 19-3363 (2d Cir. Sept. 8, 2021), the panel majority holds that the jury in a criminal prosecution should not have heard officer testimony that the defendant, “unlike the ‘average drug dealer,’ appeared to be ‘experienced’ because he had employed countersurveillance driving techniques (which consisted of really bad driving).” TheContinue reading “Split Second Circuit Panel Holds That District Court Erred by Admitting “Opinion” Testimony that Defendant “Employed Countersurveillance Driving Techniques,” Ordering New Trial”

Split Second Circuit Panel Holds That Collateral Order Doctrine Allows Interlocutory Review of Order of Fugitive Disentitlement, Creating a Circuit Split

In United States v. Sindzingre, No.19-1698 (2d Cir. Aug. 5, 2021), a 2-1 panel decides both its appellate jurisdiction to review an interlocutory order under the fugitive disentitlement doctrine, disagreeing with the Sixth and Eleventh Circuits. The panel majority also holds that the district court erred in holding that the doctrine applied to “a foreignContinue reading “Split Second Circuit Panel Holds That Collateral Order Doctrine Allows Interlocutory Review of Order of Fugitive Disentitlement, Creating a Circuit Split”

Second Circuit Holds That Plaintiff’s Mental Disability Was Not “Excusable Neglect” For Extension Under Fed. R. App. P 4(a)(5)

In Alexander v. Saul, No. 19-3370 (2d Cir. July 8, 2021), the Second Circuit affirms a district court decision holding that plaintiff’s post-traumatic stress disorder, bipolar disorder, and opioid use disorder was not “excusable neglect” to justify an extension of time to file a notice of appeal, in a case where plaintiff failed to keepContinue reading “Second Circuit Holds That Plaintiff’s Mental Disability Was Not “Excusable Neglect” For Extension Under Fed. R. App. P 4(a)(5)”