Opinion Summaries: Second Circuit U.S. Court of Appeals
From: Findlaw Summaries: July 23-25, 2008.
BANKRUPTCY LAW, CIVIL PROCEDURE, CLASS ACTIONS, INTERNATIONAL LAW, SECURITIES LAW
Bondi v. Capital & Fin. Asset Mgmt. S.A., No. 07-2949
"Denial of motion by debtor in foreign bankruptcy proceedings to enjoin actions brought against it in the United States is affirmed where the district court acted within its sound discretion in interpreting 11 U.S.C. section 304(c)'s instruction to assure an economical and expeditious administration of a foreign estate. "
CIVIL PROCEDURE, IMMIGRATION LAW
Llanos-Fernandez v. Mukasey , No. 07-0756
"Petition for review of a denial of minor petitioner's motion to reopen his removal proceedings and rescind his in abstentia order is granted where petitioner's uncle, into whose custody he had been released, was not served with the notice of the hearing."
CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW, INJURY AND TORT LAW, PROPERTY LAW & REAL ESTATE
Williams v. Town of Greenburgh, No. 06-4897
"In an action under 42 U.S.C. section 1983, judgment dismissing plaintiff's claims against defendant-town and two municipal officers is affirmed where: 1) plaintiff's desire to use town's community center was not protected by his right to freedom of movement; 2) plaintiff's speech was not silenced or chilled by defendant's allegedly punitive conduct; and 3) probable cause supported the arrest and prosecution of plaintiff's criminal trespass."
CRIMINAL LAW & PROCEDURE, EVIDENCE
"A conviction pursuant to a plea to possession by a felon of ammunition shipped in interstate commerce is affirmed over a challenge to a denial of a suppression motion where: 1) typographical errors did not render the warrant invalid; and 2) a reference in the warrant to a supporting affidavit was permissible."
CONTRACTS, PROPERTY LAW & REAL ESTATE
Rivkin v. Century 21 Teran Realty LLC, No. 05-6566-cv
"In a real estate matter, summary judgment for defendants is affirmed where defendants, acting as buyer's agents, did not breach a fiduciary duty to plaintiff by failing to disclose the representation of a competing bidder for the property plaintiff sought to purchase."
IMMIGRATION LAW
Passi v. Mukasey, No. 07-2102-ag
"In an immigration matter, petition for review of a denial of petitioner's application for asylum is granted and the case is remanded where the BIA could not have conducted an individualized analysis of how changed country conditions would affect someone in petitioner's situation."
CIVIL PROCEDURE, CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, PER CURIAM, SENTENCING
Contino v. United States, No. 08-1575
"In proceedings arising from a denial of petitioner's 28 U.S.C. section 2255 motion to vacate his guilty plea and sentence, government's motion to dismiss defendant's appeal for lack of jurisdiction is denied where defendant's notice of appeal was considered to have been timely filed. Defendant's motion for certificate of appealability is also denied where he failed to make a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. section 2253(c)."
CRIMINAL LAW & PROCEDURE
"A conviction pursuant to a guilty plea to being a felon in possession of a firearm is affirmed where: 1) the district court did not abuse its discretion in denying defendant's motion to withdraw his plea without a hearing because, on the basis of undisputed facts, the court permissibly found that defendant's plea was entered voluntarily; and 2) prosecutor's statement, which reminded defendant of the consequences of a decision to proceed to trial, did not render defendant's plea involuntary."
CRIMINAL LAW & PROCEDURE, PER CURIAM, SENTENCING
"A sentence for conspiracy to possess cocaine with intent to distribute and possession with intent to distribute cocaine base is affirmed where: 1) the district court did not abuse its discretion in considering both convictions in sentencing defendant; and 2) the decision in United States v. Regalado, 518 F.3d 143 (2d Cir. 2008), had no application in this case because the Sentencing Guidelines range applied to defendant's case was not the result of the Guidelines, but rather resulted from his undisputed status as a career offender"
ENTERTAINMENT LAW, PER CURIAM, TAX-EXEMPT ORGANIZATIONS
American National Theatre & Academy v. American National Theatre Inc., No. 07-0477
"Denial of plaintiff-non-profit organization's motion to enjoin defendant organization from using a similar name is affirmed where 36 U.S.C. Section 21904 granted plaintiff exclusive use only of the precise name "The American National Theater and Academy" appearing in the statute, 'nothing more, and nothing less.' "
ERISA, LABOR & EMPLOYMENT LAW
Frommert v. Conkright, No. 07-0418
"In a class action ERISA case brought by former and current employees of Xerox Corporation, an order issued by the district court following a prior remand is affirmed in part and vacated in part where: 1) the district court crafted a remedy consistent with the circuit court's decision, applicable law, and the terms of the pension plan at issue; but 2) the district court erred in refusing to enforce certain release forms signed by several plaintiffs."
CIVIL PROCEDURE, IMMIGRATION LAW
"Petition for review of a denial of petitioner's motion to remand his case to an IJ in order to apply for an extreme hardship waiver of the ordinary requirement that a conditional permanent resident file a joint petition with his spouse to remove the conditional designation of his residency status is denied where: 1) there was jurisdiction to hear the matter; but 2) the BIA did not abuse its discretion by refusing to remand petitioner's case"
CIVIL PROCEDURE, PER CURIAM
"An order dismissing plaintiff's claims is affirmed where defendant's claims are time-barred and hence subject to dismissal under Federal Rule of Civil Procedure 12(b)(6)"
CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Delossantos, No. 06-4813
"In a prosecution for drug-related offenses, grant of a motion to suppress post-arrest statements and evidence obtained from defendant's apartment and car is reversed where agents had probable cause to arrest defendant based on known or reasonably trustworthy information possessed by agents"
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Gray, No. 07-3636
"Reckless endangerment, in violation of N.Y. Penal Law section 120.25, is not a "crime of violence" under U.S.S.G. section 4B1.2(a)(2)".
.
