Datasets:

rmahari

/

LePaRD

like 2

2012-03-30

United States District Court for the Eastern District of New York

Sankar v. City of New York

Sankar v. City of New York, 867 F. Supp. 2d 297 (2012)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_8

absentee] [of] circumstances that raise doubts as to the victim’s veracity,

Although information furnished to police by a person who claims to be a victim of a crime generally “suffices to establish probable cause,” Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir.1994), this presumption of victim reliability only survives in the “

2012-03-30

United States District Court for the Eastern District of New York

Sankar v. City of New York

Sankar v. City of New York, 867 F. Supp. 2d 297 (2012)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

a plaintiff must [also] show a violation of his rights under the Fourth Amendment,

“[T]o prevail on a § 1983 claim against a state actor for malicious prosecution,” however, “

2012-03-30

United States District Court for the Eastern District of New York

Sankar v. City of New York

Sankar v. City of New York, 867 F. Supp. 2d 297 (2012)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_9

under New York law, an adjournment in contemplation of dismissal ... is not a favorable termination....

Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir.1997). b. First, “under New York law, an adjournment in contemplation of dismissal... is not a favorable termination.... ”

2009-09-30

United States Court of Appeals for the Second Circuit

Roberts v. Babkiewicz

Roberts v. Babkiewicz, 582 F.3d 418 (2009)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law.

Reasoning that it “would have to ‘conjure up unpleaded facts,’ in order to state a scenario in which the nolle of the assault charge was not in exchange for the plaintiffs plea of guilty to Interfering with an Officer,” the district court concluded that Roberts’s allegations did not suggest a favorable termination of the underlying criminal offense and that Roberts’s malicious prosecution claim failed as a matter of law. Id at 361 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Roberts appeals. DISCUSSION We review de novo a grant of a judgment on the pleadings under Federal Rule of Civil Procedure 12(c). “

2009-08-18

United States District Court for the Eastern District of New York

Wong v. Yoo

Wong v. Yoo, 649 F. Supp. 2d 34 (2009)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_8

An arresting officer advised of a crime by a person who claims to be the victim ... has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.

”); Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995) (“An arresting officer advised of a crime by a person who claims to be the victim... has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.

2009-08-18

United States District Court for the Eastern District of New York

Wong v. Yoo

Wong v. Yoo, 649 F. Supp. 2d 34 (2009)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_15

Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused, for purposes of a malicious prosecution claim, unless its final disposition is such as to indicate the accused’s innocence.

Llerando-Phipps, 390 F.Supp.2d at 382. Rather, according to plaintiff and other witnesses, defendant Mangone deliberately made false statements to the police regarding the events of May 16, 2003. Further, defendant Mangone did travel to court at least once in relation to plaintiffs case, and a fact-finder could infer from defendant Ciurcina’s testimony that defendant Mangone would have testified against plaintiff had earlier summonses reached him at his correct address. Under these circumstances, a reasonable fact-finder could determine that defendant Mangone initiated or continued the criminal proceedings against plaintiff. ii. “

2009-08-18

United States District Court for the Eastern District of New York

Wong v. Yoo

Wong v. Yoo, 649 F. Supp. 2d 34 (2009)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_18

the state’s effective abandonment of a prosecution, [resulting] in a dismissal for violation of the accused’s speedy trial rights, without an adjudication of his guilt or innocence, constitute^] a favorable termination.

Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir.2002). For example, “

2009-08-18

United States District Court for the Eastern District of New York

Wong v. Yoo

Wong v. Yoo, 649 F. Supp. 2d 34 (2009)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_6

something other than a desire to see the ends of justice served

Construing the facts in the light most favorable to plaintiff, a reasonable trier of fact could determine that both defendants Yoo and Mangone were motivated by “

2014-03-14

United States District Court for the Western District of New York

Boans v. Town of Cheektowaga

Boans v. Town of Cheektowaga, 5 F. Supp. 3d 364 (2014)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_4

There can be no federal civil rights claim for false arrest where the arresting officer had probable cause.

See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995) (“

2014-03-14

United States District Court for the Western District of New York

Boans v. Town of Cheektowaga

Boans v. Town of Cheektowaga, 5 F. Supp. 3d 364 (2014)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment and establish the elements of a malicious prosecution claim un der state law.

Indeed, Officer Gray’s deposition testimony that he did not believe Plaintiff had taken Davis’s property until the Davis’s wallet was found in Plaintiffs vehicle, after said vehicle had been towed to the tow lot, could reasonably be construed by a reasonable juror as establishing an absence of probable cause to arrest Plaintiff on the 4th degree Grand Larceny charge. Gray Dep. Tr. at 53-54. Alternatively, the Police Report prepared by Officer Gray states that Plaintiff was taken into custody in connection with Davis’s complaint that Plaintiff stole his wallet and key, and the hydrocodone tablets were not discovered in the prescription bottle until after Plaintiffs arrest, reasonably supporting only an absence of probable cause to arrest Plaintiff on the criminal possession of a controlled substance charge. These discrepancies cannot be reconciled without weighing facts and choosing either one version of the events over the other, which could still allow for a determination Plaintiffs arrest was supported by probable cause, or discounting both versions, such that Plaintiffs arrest would not be supported by probable cause. See Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 158, 162 (2d Cir.2006) (when deciding a summary judgment motion in a civil case, all factual ambiguities must be resolved in the non-moving party’s favor and the court may not weigh the evidence, but rather must only determine whether a genuine issue of fact exists for trial). With regard to Plaintiffs § 1983 malicious prosecution claim, the Second Circuit provides that “

2013-09-03

United States District Court for the Eastern District of New York

Powell v. Murphy

Powell v. Murphy, 972 F. Supp. 2d 335 (2013)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_8

An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.

People v. McNamara, 78 N.Y.2d 626, 636, 585 N.E.2d 788, 578 N.Y.S.2d 476 (1991). Here, the Plaintiff suggests that O’Connell could not have been a casual passerby since she snuck up behind her bushes and spied on him. Nevertheless, the fact that O’Connell was able to plainly observe the Plaintiff from five to six feet away through bushes suggests that the Plaintiffs conduct would have been readily observable by any person walking or driving down the street in the residential community. In addition, O’Connell first observed the Plaintiff from her porch, indicating that anyone living at or visiting one of the neighboring homes would most likely be able to see the Plaintiff, as well. Lastly, the Plaintiff contends that unlike O’Connell, a casual passerby would not have been in hiding and therefore the Plaintiff would have seen him or her approaching. As a result, the Plaintiff argues that he would have been able to take the steps to prevent him or her from observing him while partially undressed. However, in the Court’s view, this is speculative, since it’s still possible that the Plaintiff might not have noticed a casual passerby until it was too late for him to take any steps to prevent him or her from observing his exposed penis. See Singer, 63 F.3d at 119 (“

2013-09-18

United States District Court for the Eastern District of New York

Naples v. Stefanelli

Naples v. Stefanelli, 972 F. Supp. 2d 373 (2013)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_17

[a] § 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest,

Accordingly, to the extent that the ESI Defendants move to dismiss the Section 1983 claims for failure to plead state action, their motion is DENIED. b. Failure to State a Claim The ESI Defendants read the Amended Complaint as asserting three distinct claims under Section 1983: malicious prosecution, false arrest, and illegal search in violation of the Fourth Amendment. i.Malicious Prosecution The ESI Defendants argue that the malicious prosecution claims must be dismissed because the charges against Jimmy and the Naples Corporations are still pending. The Court agrees. To state a claim for malicious prosecution under Section 1983 in New York, a plaintiff must allege: (1) the commencement of a criminal proceeding, (2) favorable termination of that proceeding, (3) lack of probable cause, (4) the proceedings were instituted with actual malice, and (5) a post-arraignment seizure. Swartz v. Insogna, 704 F.3d 105, 111-12 (2d Cir.2013). Here, the Amended Complaint is void of any allegations plausibly suggesting that the criminal action(s) pending against Jimmy and the Naples Corporations were terminated in their favor. Accordingly, the ESI Defendants’ motion to dismiss these claims is GRANTED, and the malicious prosecution claims against the ESI Defendants are DISMISSED WITHOUT PREJUDICE. ii.False Arrest The ESI Defendants argue that Jimmy’s false arrest claims must be dismissed because the Amended Complaint fails to adequately allege that the arrests lacked probable cause. Although “

2013-02-26

United States Court of Appeals for the Second Circuit

McCaul v. Ardsley Union Free School District

McCaul v. Ardsley Union Free School District, 514 F. App'x 1 (2013)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment and establish the elements of a malicious prosecution claim under state law.

Kolari v. N.Y.Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.2006) (quoting City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). We review for abuse of discretion the district court’s exercise of supplemental jurisdiction over McCaul’s state law claims notwithstanding its decision to dismiss her federal law claims. See id. It is not clear whether there are any differences in the elements of a state malicious prosecution claim and a federal malicious prosecution claim in the context presented here. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“

2008-07-18

United States District Court for the Southern District of New York

Rheingold v. Harrison Town Police Department

Rheingold v. Harrison Town Police Department, 568 F. Supp. 2d 384 (2008)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_8

An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.

United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983) (internal quotation marks and citation omitted). For this motion, we must determine whether Officer Parrello had knowledge or reasonably trustworthy information of sufficient facts and circumstances to warrant arresting plaintiff for criminal contempt in the second degree, pursuant to New York Penal Law § 215.50(3). Under New York law, a person is guilty of criminal contempt in the second degree when he wilfully disobeys a clear and definite court order. See N.Y. Penal Law 215.50(3); Holtzman v. Beatty, 97 A.D.2d 79, 82, 468 N.Y.S.2d 905 (2d Dep’t 1983). The Complaint states that a Family Court order issued on October 19, 2006 gave plaintiff visitation rights weekdays after school until 8:30 p.m. The Complaint also states that on October 27, 2006 Giersz-ewski made a complaint to the police that plaintiff violated this order when he returned his children at 8:50 p.m. Plaintiff was then arrested and charged with criminal contempt in the second degree. Based on these allegations, Parrello had probable cause to charge plaintiff with criminal contempt in the second degree for violating the October 19, 2006 order. “

2006-09-07

United States District Court for the District of Connecticut

Brown v. Aybar

Brown v. Aybar, 451 F. Supp. 2d 374 (2006)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution claim under state law.

Malicious Prosecution “In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution claim under state law.

2006-07-21

United States District Court for the Eastern District of New York

Ostroski v. Town of Southold

Ostroski v. Town of Southold, 443 F. Supp. 2d 325 (2006)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_17

A § 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest

Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975), cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975) (internal citations omitted). Fulton v. Robinson, 289 F.3d 188, 195 (2d. Cir.2002) (“

2006-07-21

United States District Court for the Eastern District of New York

Ostroski v. Town of Southold

Ostroski v. Town of Southold, 443 F. Supp. 2d 325 (2006)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_16

To establish a malicious prosecution claim under New York law, a plaintiff must show that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor.

”) (citing Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)); see also DeVito v. Barrant, No. 03-CV-1927 (DLI), 2005 WL 2033722, at *4 (E.D.N.Y. Aug.23, 2005) (barring § 1983 false arrest claim where probable cause existed for arrest, as exhibited by plaintiffs conviction, and rejecting plaintiffs argument that false arrest claim could be brought regarding other charges for which he was not convicted). The Court finds that summary judgment should be granted in favor of defendants with respect to plaintiffs false arrest and false imprisonment claims. 2. Malicious Prosecution Defendants argue that plaintiffs claim for malicious prosecution must be dismissed because probable cause existed for plaintiffs prosecution on the resisting arrest and obstruction of governmental administration charges, both of which resulted in an acquittal. In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must demonstrate that his or her rights were violated under the Fourth Amendment, see, e.g., Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir.1997), cert. denied, 522 U.S. 1115, 118 S.Ct. 1051, 140 L.Ed.2d 114 (1998), and also establish the element of malicious prosecution under state law, see, e.g., Russell v. Smith, 68 F.3d 33, 36 (2d Cir.1995). “

2006-07-21

United States District Court for the Eastern District of New York

Ostroski v. Town of Southold

Ostroski v. Town of Southold, 443 F. Supp. 2d 325 (2006)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_13

the need to separately analyze the charges claimed to have been maliciously prosecuted

Id.; see also Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991). As with the false arrest claim, defendants contend that the malicious prosecution claim is defective as a matter of law because plaintiffs later conviction demonstrated the existence of probable cause for the arrest. See Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir.1989) (claim of malicious prosecution on charge of resisting arrest, of which plaintiff was acquitted, was not barred by his conviction for disorderly conduct); see also Posr, 944 F.2d at 100 (highlighting “

2007-07-27

United States District Court for the Southern District of New York

Martinez v. Golding

Martinez v. Golding, 499 F. Supp. 2d 561 (2007)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_8

‘[a]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.’

See Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir.2001) (“When information is received from a putative victim or an eyewitness, probable cause exists [ ] unless the circumstances raise doubt as to the person’s veracity[.]”) (citing Martinez, 202 F.3d at 634; Singer, 63 F.3d at 119 (finding probable cause to arrest based on an eyewitness’s supporting deposition)); see also Maron, 166 Fed.Appx. at 542 (“ ‘[a]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.

2007-07-27

United States District Court for the Southern District of New York

Martinez v. Golding

Martinez v. Golding, 499 F. Supp. 2d 561 (2007)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_16

To establish a malicious prosecution claim under [§ 1983 or] New York law, a plaintiff must show that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor.

See Johnson v. Constantellis, 221 Fed.Appx. 48, 50 (2d Cir.2007) (“To demonstrate a malicious prosecution claim under Section 1983 or New York law, [a plaintiff] must show ‘... that there was no probable cause for the proceeding....’”) (quoting Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.2003)); Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“

2008-07-22

United States Court of Appeals for the Second Circuit

Williams v. Town of Greenburgh

Williams v. Town of Greenburgh, 535 F.3d 71 (2008)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_16

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show ... that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor.

On that basis, the District Court ruled in defendants’ favor on these claims. We agree that Williams’s false arrest and malicious prosecution claims fail, but we arrive at this conclusion by a more direct route. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show... that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor.

2008-07-22

United States Court of Appeals for the Second Circuit

Williams v. Town of Greenburgh

Williams v. Town of Greenburgh, 535 F.3d 71 (2008)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_4

There can be no federal civil rights claim for false arrest where the arresting officer had probable cause.

”); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995) (“

2011-03-24

United States District Court for the Eastern District of New York

Mitchell v. County of Nassau

Mitchell v. County of Nassau, 786 F. Supp. 2d 545 (2011)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_6

a wrong or improper motive, something other than a desire to see the ends of justice served.

Tartaglione v. Pugliese, 89 Fed.Appx. 304, 305 (2d Cir.2004); Warren v. Byrne, 699 F.2d 95, 98 (2d Cir.1983); see also Husbands ex rel. Forde v. City of New York, 2007 WL 2454106, at *7 (S.D.N.Y. Aug. 16, 2007) (“it is important to keep in mind the distinction between probable cause and the evidentiary weaknesses in the case”), aff'd, 335 Fed.Appx. 124 (2d Cir.2009); Carlisle v. City of New York, 2007 WL 998729, at *3 (S.D.N.Y. Apr. 2, 2007) (noting that “acquittal is evidence of reasonable doubt, not lack of probable cause”); Coleman v. City of New York, 177 F.Supp.2d 151, 158 n. 5 (S.D.N.Y.2001) (fact that witness could no longer positively identify defendant did not serve to exonerate him and although the case was weakened, it at no point became “futile”), aff'd, 49 Fed.Appx. 342 (2d Cir. 2002). Malice in commencing a proceeding has been defined as “

2014-08-13

United States District Court for the Northern District of New York

Marcano v. City of Schenectady

Marcano v. City of Schenectady, 38 F. Supp. 3d 238 (2014)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_17

A § 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest.

Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996); see also Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“

2014-08-13

United States District Court for the Northern District of New York

Marcano v. City of Schenectady

Marcano v. City of Schenectady, 38 F. Supp. 3d 238 (2014)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_15

Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused, for purposes of a malicious prosecution claim, unless its final disposition is such as to indicate the accused’s innocence.

Proceedings are “terminated in favor of the accused” when their final disposition is such as to indicate the accused is not guilty. “

2010-09-23

United States District Court for the Eastern District of New York

Mangino v. Incorporated Village of Patchogue

Mangino v. Incorporated Village of Patchogue, 739 F. Supp. 2d 205 (2010)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_18

the state’s effective abandonment of a prosecution, [resulting] in a dismissal for violation of the accused’s speedy trial rights, without an adjudication of his guilt or innocence, constitute^] a favorable termination.

For example, “

2009-03-31

United States District Court for the Southern District of New York

Ambrose v. City of New York

Ambrose v. City of New York, 623 F. Supp. 2d 454 (2009)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law.

Thus, while a law enforcement officer has no constitutional duty to “prove the plaintiffs version of the events wrong before arresting him,” Rheingold, 568 F.Supp.2d at 392, or to “explore and eliminate every theoretically plausible claim of innocence before making an arrest,” Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 128 (2d Cir.1997), Plaintiff has alleged that the individually named defendants pursued their arrest of Plaintiff in the knowing absence of probable cause, and that these defendants subsequently assisted the prosecutor in misleading the Grand Jury and withholding exculpatory information from Plaintiff before and during trial. While the facts adduced during discovery may very well show that, as a matter of law, there was probable cause to support Plaintiffs arrest (and subsequent prosecution), Plaintiffs allegations foreclose this Court from so finding as a matter of law at this stage. See Hill v. City of New York, No. 05-CV-9473, 2006 WL 2347739, at *3 (S.D.N.Y. Aug. 14, 2006) (finding that plaintiff stated cause of action for false arrest in spite of witness information which inculpated plaintiff); Middleton v. City of New York, No. 04-CV-1304, 2006 WL 1720400, at *6 (E.D.N.Y. June 19, 2006) (denying motion to dismiss, after drawing all inferences in favor of plaintiff regarding whether the police were aware of information that raised doubt about a victim’s veracity, and holding that the court could not determine as matter of law that defendants had probable cause to arrest plaintiff). Malicious Prosecution “

2007-01-17

United States District Court for the Southern District of New York

D’Angelo-Fenton v. Town of Carmel

D’Angelo-Fenton v. Town of Carmel, 470 F. Supp. 2d 387 (2007)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_16

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution claim under state law .... To establish a malicious prosecution claim under New York law, a plaintiff must show that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor.

In the present case, we have no indication that plaintiff expressly refused to consent to the test. B. Malicious Prosecution See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution claim under state law....

2007-11-07

United States District Court for the Southern District of New York

Espada v. Schneider

Espada v. Schneider, 522 F. Supp. 2d 544 (2007)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_6

wrong or improper motive, something other than a desire to see the ends of justice served.

” Espada must also show that the proceeding against him was instituted with malice — a “

2008-11-19

United States District Court for the District of Connecticut

White v. Martel-Moylan

White v. Martel-Moylan, 586 F. Supp. 2d 63 (2008)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution under state law.

(Id. at 3.) However, the plaintiff provides no evi-dentiary support for his contention that the court refused to sustain the original finding of probable case, and that contention is flatly contradicted by his defense attorney’s negotiation of a plea with the prosecutor and the court’s sentencing him on the charge in the substituted information. In any event, the plaintiff can not overcome the fact that he pled guilty to charges arising out of the incident for which he was arrested and, for that reason, can not challenge the existence of probable cause. Therefore, Martel-Moylan is entitled to summary judgment on these claims. Malicious Prosecution “In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution under state law.

2017-03-31

United States District Court for the Eastern District of New York

Ying Li v. City of New York

Ying Li v. City of New York, 246 F. Supp. 3d 578 (2017)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_7

involves the merits and indicates the accused’s innocence.

At this stage, the Court need not decide whether the termination of Plaintiffs criminal case was, in fact, a favorable one; rather, the only issue before the Court is whether Plaintiff has sufficiently alleged a favorable termination. See Bacquie v. City of New York, No. 99 CIV10951, 2000 WL 1051904, at *3 (S.D.N.Y. Jul. 31, 2000). 23 . The Medical Center Defendants cite Singer, 63 F.3d 110, in support of their argument. (Dkt. 56 at 5.) However, as discussed below, because the New York Court of Appeals decision in Cantalino largely negates this aspect of Singer, thé Court does not address Singer. In any event, the Medical Center Defendants need not rely on Singer, given the numerous federal court decisions, including one by the Second Circuit, reaching the same conclusion as Singer. 24 . Significantly, reiterating part of its holding in Smith-Hunter, the Court of Appeals in Cantolino stated, ‘‘[t]o be sure, there are circumstances where a dismissal in the interest of justice is inconsistent with innocence because it represents'mercy requested or accepted by the accused’ ”. 96 N.Y.2d at 396, 729 N.Y.S.2d 405, 754 N.E.2d 164 (quoting Smith-Hunter, 95 N.Y.2d at 197, 712 N.Y.S.2d 438, 734 N.E.2d 750). 25 . The Medical Center Defendants rely on decisions that define a favorable termination as one that “involves the merits and indicates the accused’s innocence. MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486, 666 N.E.2d 1359, 1360 (1996); (see Dkt. 55 at 6-7) (citing Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980), Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002); Hershey v. Goldstein, 938 F.Supp.2d 491, 518 (S.D.N.Y. 2013)).

2002-08-08

United States District Court for the Eastern District of New York

Dorman v. Castro

Dorman v. Castro, 214 F. Supp. 2d 299 (2002)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_17

A § 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest

See e.g. Kirk v. Metropolitan Trans. Auth., No. 99 CV 3787, 2001 WL 258605, *15 (S.D.N.Y. Mar.14, 2001); Kirton v. Hassel, No. 96 CV 1371, 1998 WL 146701, *6 (E.D.N.Y. Mar. 25, 1998); Sassower v. City of White Plains, 992 F.Supp. 652, 656 (S.D.N.Y. 1998); but see Britton v. Maloney, 196 F.3d 24, 30 (1st Cir.1999) (“the fact that [the plaintiff] was given a date to appear in court is insufficient to establish a seizure”), cert. denied, 530 U.S. 1204, 120 S.Ct. 2198, 147 L.Ed.2d 234 (2000). We agree with these district court decisions, and hold that Plaintiffs satisfy the “seizure” requirement for their Fourth Amendment claim. B. Probable Cause The next question before the Court is whether the challenged “seizure” is “unreasonable” under the Fourth Amendment. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“

2002-11-13

United States District Court for the District of Connecticut

Shattuck v. Town of Stratford

Shattuck v. Town of Stratford, 233 F. Supp. 2d 301 (2002)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

[T]o prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment.

”); Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“

2002-11-13

United States District Court for the District of Connecticut

Shattuck v. Town of Stratford

Shattuck v. Town of Stratford, 233 F. Supp. 2d 301 (2002)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

[i]n order to prevail bn a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution under state law.

” Further, “[i]n order to prevail bn a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution under state law.

2002-09-04

United States District Court for the Northern District of New York

Noga v. Potenza

Noga v. Potenza, 221 F. Supp. 2d 345 (2002)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution claim under state law.

Thus, Lewis’ central contention is that he could not be held liable for either false arrest or malicious prosecution because others, not himself, directly arrested and prosecuted Noga. A plaintiff must demonstrate that the acts of a defendant proximately caused the deprivation of rights to sustain claims of false arrest and malicious prosecution under section 1983. See Horn by Parks v. Madison County Fiscal Court, 22 F.3d 653, 659 (6th Cir.1994). More than one act and more than one person may contribute to causing the deprivation of a civil right. See Dugas v. Jefferson County, 931 F.Supp. 1315, 1320 (E.D.Tex.1996), aff'd, 127 F.3d 33 (5th Cir.1997). Here, there was evidence from which a reasonable juror could conclude that Lewis counseled, induced, procured and failed to prevent the false arrest and malicious prosecution of Noga. Lewis attempted to intimidate Noga from taking action before the seizure, contacted detectives on Cirincione’s behalf after the seizure, sent a police officer to Cirincione’s place of business to facilitate taking a complaint, provided Potenza with information about the case, contacted the Assistant District Attorney assigned to prosecute Noga to protest reduction of the charge against Noga, and failed to act to prevent the arrest or prosecution of Noga despite knowing of the self-help provision in the lease. These acts and omissions could reasonably be found to have contributed to causing the violations of Noga’s rights. Lewis’ motion on this ground is denied. Insufficient Evidence of Malicious Prosecution To establish a malicious prosecution claim under § 1983, a plaintiff must demonstrate “a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution claim under state law.

2002-09-04

United States District Court for the Northern District of New York

Noga v. Potenza

Noga v. Potenza, 221 F. Supp. 2d 345 (2002)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_16

To establish a malicious prosecution claim under New York law, a plaintiff must show that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor.

Fulton v. Robinson, 289 F. “

2002-07-22

United States District Court for the Southern District of New York

Washington v. County of Rockland

Washington v. County of Rockland, 211 F. Supp. 2d 507 (2002)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_16

To establish a malicious prosecution claim under New York law, a plaintiff must show that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor.

Fed.R.Civ.P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F.Supp.2d 249, 254 (E.D.N.Y.1999). A genuine factual issue exists if there is sufficient.evidence favoring the nonmovant for a reasonable jury to return a verdict in -his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ticali, 41 F.Supp.2d at 254. In deciding whether summary judgment is appropriate, the court should resolve all.ambiguities and draw all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Summary judgment is warranted when the nonmov-ant has no evidentiary support for an essential-element on which it-bears the burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir.1991). III. Malicious Prosecution In order to state a claim for malicious prosecution under § 1983, a federal plaintiff must prove the elements of malicious prosecution under state law. “

2003-03-26

United States District Court for the District of Connecticut

Chipperini v. Crandall

Chipperini v. Crandall, 253 F. Supp. 2d 301 (2003)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

[T]o prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment.

Thus, Chipperini clearly asserts that her right to be free from malicious prosecution, which is derived-from the Fourth Amendment, was violated, see Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“

2003-03-26

United States District Court for the District of Connecticut

Chipperini v. Crandall

Chipperini v. Crandall, 253 F. Supp. 2d 301 (2003)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution under state law.

“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution under state law.

2005-10-27

United States Court of Appeals for the First Circuit

Coyle v. Coyle

Coyle v. Coyle, 153 F. App'x 10 (2005)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_17

A § 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest.

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Timothy Coyle appeals from a Decision and Order of the United States District Court for the Eastern District of New York (Spatt, J.) dismissing, pursuant to Rule 12(b)(6), his 42 U.S.C. § 1983 claims against Appellees Pamela Olsen, Steven DeGraziano, the Nassau County Police Department, and the County of Nassau. Coyle’s complaint alleged claims of false arrest, false imprisonment, and malicious prosecution, in violation of the Fourth and Fourteenth Amendments, stemming from his October 2002 arrest for allegedly violating his wife’s order of protection. We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented on appeal. Our review of a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) is de novo. “

2004-08-13

United States District Court for the District of Connecticut

Romagnano v. Town of Colchester

Romagnano v. Town of Colchester, 354 F. Supp. 2d 129 (2004)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

in order to prevail on a Section 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law.

Hill, 401 U.S. at 802, 91 S.Ct. 1106. As to the Fourth Amendment malicious prosecution claim, “

2005-12-19

United States Court of Appeals for the Second Circuit

Dion v. City of Utica

Dion v. City of Utica, 160 F. App'x 45 (2005)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_17

A § 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest.

SUMMARY ORDER At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 19th day of December, two thousand five. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED. Defendant-appellant Gerald R. Dion, Sr.’s complaint under 42 U.S.C. § 1983 alleges violations of his Fourteenth Amendment rights to due process, stemming from his May 2001 arrest for second-degree menacing. We assume that the parties and counsel are familiar with the facts, the procedural history, and the scope of the issues presented on appeal. We review a grant of summary judgment de novo. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Id. “

2015-08-18

United States District Court for the District of Massachusetts

Morse v. Massachusetts Executive Office of Public Safety Department of State Police

Morse v. Massachusetts Executive Office of Public Safety Department of State Police, 123 F. Supp. 3d 179 (2015)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_1

to stand on his constitutional right[]

Defendants’ argument that an exigency arose because Morse did not exit his house once told he was under arrest — in other words, because he chose "

2011-12-23

United States District Court for the Eastern District of New York

Estiverne v. Esernio-Jenssen

Estiverne v. Esernio-Jenssen, 833 F. Supp. 2d 356 (2011)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment.

Here, plaintiffs have presented a genuine issue of material fact as to whether the petition for removal was either intentionally or recklessly false, as the result of defendants’ conduct, when it stated that A.E.’s injuries were consistent with being grabbed and shaken. Because the removal order expressly mentioned this diagnosis as one of only two bases for removal, I cannot say, as a matter of law, that it was not material to the Family Court’s decision to seize Infant Plaintiffs. b. Qualified immunity Plaintiffs’ Fourth Amendment claims based on the Family Court’s removal order are dependent on their theory that defendants were joint conspirators with ACS caseworkers. Defendants are therefore not entitled to qualified immunity on this claim. See supra, at 374-75. Defendants’ motion to dismiss plaintiffs’ Fourth Amendment claims is denied. F. Malicious Prosecution In addition to their state law claim for malicious prosecution, discussed further below, Adult Plaintiffs also bring a malicious prosecution claim under § 1983, premised on a violation of the Fourth Amendment. Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“

2010-08-27

United States District Court for the Eastern District of New York

Sclafani v. Spitzer

Sclafani v. Spitzer, 734 F. Supp. 2d 288 (2010)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_0

fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.

Such “[c]onclusory allegations will not suffice to create a genuine issue” of material fact. Delaware & Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990). 2. This presumption may only be rebutted by evidence that the indictment was procured by “

2017-03-21

United States Court of Appeals for the Second Circuit

Edelman v. Schultz

Edelman v. Schultz, 683 F. App'x 60 (2017)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_17

§ 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest,

SPA 26. Specifically, the District Court pointed to the fact that—as alleged in the Complaint (and as attested to by Schultz in his affidavit, see A. 178-79)—Edelman was performing roof work without a permit, in violation of the State Building Code. We agree with the District Court that, because a “

2017-03-21

United States Court of Appeals for the Second Circuit

Edelman v. Schultz

Edelman v. Schultz, 683 F. App'x 60 (2017)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_16

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law. To prevail on a malicious prosecution claim under Connecticut law, a plaintiff must prove the following elements: (1) the defendant initiated or continued criminal proceedings against the plaintiff; (2) the criminal proceeding terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice.

And this time, Schultz was also told that plaintiff had ripped up the stop work order—a gesture that, in conjunction with plaintiffs prior conduct, suggested that plaintiff did not intend to comply with the law—and that plaintiff had attacked Page’s car in anger over the demand that he cease his permit-less work. Id. at *8. We agree with the District Court that these undisputed facts (and Edelman does not dispute them on appeal), combined with the lack of any evidence of material comparators, establish that Edel-man’s prosecution did not amount to a violation of the Equal Protection Clause (even if it was perhaps an ill-advised exercise of prosecutorial discretion). As a result, like the District Court, we need not consider whether the undisputed facts demonstrated that Schultz was disentitled to immunity. CONCLUSION We have reviewed all of the arguments raised by Edelman on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court. 1 . Before this case was transferred to Judge Meyer in 2014, it was assigned to Judge Dominic J. Squatrito, who issued the order partially granting judgment on the pleadings. 2 . See Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009) (per curiam) ("In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law.

2013-09-09

United States District Court for the District of Connecticut

Clack v. Torre

Clack v. Torre, 970 F. Supp. 2d 69 (2013)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_3

In order to prevail on a § 1983 claim against a state actor of malicious prosecution, a plaintiff must ... establish the elements of a malicious prosecution claim under state law.

”); see also Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) ("In order to prevail on a § 1983 claim against a state actor of malicious prosecution, a plaintiff must... establish the elements of a malicious prosecution claim under state law.

2011-03-09

United States Court of Appeals for the Second Circuit

Kilburn v. Village of Saranac Lake

Kilburn v. Village of Saranac Lake, 413 F. App'x 362 (2011)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_8

An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.

” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.2007). We look to the “totality of the circumstances” in deciding whether probable cause exists for an arrest. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “

2009-07-24

United States District Court for the District of Connecticut

Estrada v. Torres

Estrada v. Torres, 646 F. Supp. 2d 253 (2009)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_11

by the time of the arrest,

Plaintiff concedes that Defendant initially had probable cause to arrest him when he saw him leave the store without paying for the glasses, but argues that after Defendant “learned that the plaintiff had suffered a severe hypoglycemic attack that had forced him to retreat to his automobile for potentially life-saving procedures,” the “initial probable cause” was “neutralized,” such that “

2011-03-31

United States District Court for the Eastern District of New York

Anilao v. Spota

Anilao v. Spota, 774 F. Supp. 2d 457 (2011)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_0

fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith

” (internal citations and quotation marks omitted)). 3. Failure to State a Claim a. Probable Cause The County defendants argue that they had probable cause to prosecute and arrest plaintiffs, as demonstrated by the existence of the indictment, and that any alleged investigatory misconduct did not result in any deprivation of plaintiffs’ liberty rights. Thus, the Court must examine whether, in this case, the existence of the indictment creates a presumption of probable cause that defeats the causation element of plaintiffs’ § 1983 due process claim against the County defendants. For the reasons set forth below, the Court concludes that the allegations in the Amended Complaint are sufficient to over- come the presumption of probable cause that normally attaches to an indictment. As a threshold matter, defendants are correct that a grand jury indictment does give rise to a presumption of probable cause for purposes of a malicious prosecution claim. However, a showing of “

2011-03-31

United States District Court for the Eastern District of New York

Anilao v. Spota

Anilao v. Spota, 774 F. Supp. 2d 457 (2011)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_18

the state’s effective abandonment of a prosecution, [resulting] in a dismissal for violation of the accused’s speedy trial rights, without an adjudication of his guilt or innocence, constitute^] a favorable termination.

For example, “

2011-03-31

United States District Court for the Eastern District of New York

Anilao v. Spota

Anilao v. Spota, 774 F. Supp. 2d 457 (2011)

2002-05-09

United States Court of Appeals for the Second Circuit

Fulton v. Robinson

Fulton v. Robinson, 289 F.3d 188 (2002)

9433091_18

[T]he accused should not be required to relinquish [a constitutional or other] privilege in order to vindicate his right to be free from malicious prosecution.

Under these circumstances, the Court finds that requiring plaintiffs to demonstrate their innocence of crimes for which they could not constitutionally be tried would have the “anomalous effect” of barring plaintiffs’ recovery even though their prosecution was prohibited on constitutional grounds. See also Murphy, 118 F.3d at 949 (“

2003-09-25

United States District Court for the District of Kansas

Cambridge Credit Counseling Corp. v. Foulston

Cambridge Credit Counseling Corp. v. Foulston, 303 F. Supp. 2d 1188 (2003)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_5

regulate Commerce ... among the several States,

’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). The opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the opposing party must present significant admissible probative evidence supporting that party’s allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). IV. Analysis The plaintiff argues that the defendant’s actions are depriving it of its rights secured by the Commerce Clause. The plaintiff claims that the debt adjusting law is per se invalid because its application is discriminatory and extraterritorial. The plaintiff also argues that the debt adjusting law is indirectly invalid because the burdens it imposes on interstate business exceed any local benefit. The Tenth Circuit discussed the Commerce Clause in American Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1254 (10th Cir.2000), stating: The Commerce Clause not only empowers Congress to “regulate Commerce... among the several States,” U.S. Const. art I, § 8, cl. 3, but also ‘denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce,’ Oregon Waste Sys. v. Dep’t of Envtl., Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994).

2003-09-25

United States District Court for the District of Kansas

Cambridge Credit Counseling Corp. v. Foulston

Cambridge Credit Counseling Corp. v. Foulston, 303 F. Supp. 2d 1188 (2003)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_4

the Supreme Court has rarely invoked Pike balancing to invalidate state regulation under the Commerce Clause.

The court further notes “

2003-05-29

United States Court of Appeals for the Seventh Circuit

Alliant Energy Corp. v. Bie

Alliant Energy Corp. v. Bie, 330 F.3d 904 (2003)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_1

has only indirect or incidental effects on interstate commerce and regulates evenhandedly

” The second tier is for cases where a statute “

2003-05-29

United States Court of Appeals for the Seventh Circuit

Alliant Energy Corp. v. Bie

Alliant Energy Corp. v. Bie, 330 F.3d 904 (2003)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_1

the statute will be upheld ‘unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’

The second tier is for cases where a statute “has only indirect or incidental effects on interstate commerce and regulates evenhandedly”; in such eases “the statute will be upheld ‘unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

2003-05-29

United States Court of Appeals for the Seventh Circuit

Alliant Energy Corp. v. Bie

Alliant Energy Corp. v. Bie, 330 F.3d 904 (2003)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_2

[T]he regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States.

”). The benefit on the other side is the regulation of local public utilities. Arkansas Elec. Co-op. Corp. v. Arkansas Pub. Serv. Comm’n, 461 U.S. 375, 377, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983) (“

2003-05-29

United States Court of Appeals for the Seventh Circuit

Alliant Energy Corp. v. Bie

Alliant Energy Corp. v. Bie, 330 F.3d 904 (2003)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_0

Rate regulation is a complex process. A public utility’s investments in other companies can affect its regulated rate of return, if investment losses are allocated to the regulated business.

”); accord Southern Union, 289 F.3d at 509; Baltimore Gas & Elec. Co. v. Heintz, 760 F.2d 1408, 1424 (4th Cir.1985). This interest is served well by the structural provisions because they help to prevent such abuses as cross-subsidization and deceptive reporting of cost allocation. Cross-subsidization occurs when a firm uses the revenues from the sale of one product to subsidize the sale of a another product. In a free-market system cross-subsidizing is not profit-maximizing and there are few incentives to do it. But regulation can distort free market incentives. The cost allocation and cross-subsidy problem can be illustrated by the following example. A firm sells products X and Y, where the market for X is regulated and the market for Y is unregulated. The regulation on X provides that a firm can charge a price that results in a fixed rate-of-return on its capital investment in X. Profits are dictated as a percentage of capital investment. The larger the investment in X, the greater profit the firm is authorized to collect. The price of Y is determined by free-market forces and not directly affected by the cost of capital investments. The firm has an incentive to allocate as much of its costs as possible as capital investments in the production of X. A less-than-honest firm may report certain costs attributable to product Y as investments in product X. Thus the consumers of product X cross-subsidize product Y by paying — -through the regulated rate-of-return pricing — part of the costs in producing Y. The more products a firm is responsible for, the easier it is for the firm to misreport the allocation of its costs. See, e.g., Southern Union, 289 F.3d at 507-08 (“Rate regulation is a complex process.

2014-04-18

United States District Court for the District of Minnesota

North Dakota v. Heydinger

North Dakota v. Heydinger, 15 F. Supp. 3d 891 (2014)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_0

[a] public utility’s investments in other companies can affect its regulated rate of return,

Healy, 491 U.S. at 333 n. 9, 109 S.Ct. 2491. Likewise, the Eighth Circuit has applied the extraterritoriality doctrine to statutes other than price control laws. For example, in Cotto Waxo Co., the court considered the extraterritorial effect of a Minnesota statute prohibiting the sale of petroleum-based sweeping compounds. 46 F.3d at 793-94. Although the Eighth Circuit did not ultimately invalidate the statute on extraterritoriality grounds, it did not limit application of that doctrine to price control statutes. See id. Rather, the court concluded as follows: The Act does not, either by its terms or in practical effect, necessarily affect out-of-state commerce. The Act does not require Cotto Waxo to conduct its commerce according to Minnesota’s terms. Clearly, the Act has affected Cotto Waxo’s participation in interstate commerce. Nevertheless, the Act itself is indifferent to sales occurring out-of-state. Cotto Waxo is able to sell to out-of-state purchasers regardless of Cotto Waxo’s relationship to Minnesota. Id. at 794 (emphases added). In another Eighth Circuit case, Southern Union Co. v. Missouri Public Service Commission, the court analyzed a Missouri statute that required public utilities conducting business in Missouri to obtain approval from the Missouri Public Service Commission prior to purchasing securities issued by another utility, whether or not the other utility operated in Missouri. The court found that “

2014-04-18

United States District Court for the District of Minnesota

North Dakota v. Heydinger

North Dakota v. Heydinger, 15 F. Supp. 3d 891 (2014)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_6

a local public utility for the protection of local Missouri ratepayers,

The court found that “[a] public utility’s investments in other companies can affect its regulated rate of return,” id. at 507, and that the statute regulated “

2014-04-18

United States District Court for the District of Minnesota

North Dakota v. Heydinger

North Dakota v. Heydinger, 15 F. Supp. 3d 891 (2014)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_3

part of [the Commission’s] rate regulation responsibilities,

Because there was no dispute that the statute was “

2010-08-04

United States Court of Appeals for the First Circuit

IMS Health Inc. v. Mills

IMS Health Inc. v. Mills, 616 F.3d 7 (2010)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_5

regulate Commerce ... among the several States,

See Trans Union Corp. v. FTC, 245 F.3d 809, 818 (D.C.Cir.2001). The reports and databases plaintiffs prepare to facilitate detailing are indistinguishable from these cases for First Amendment purposes. Still, we use the Central Hudson framework. 15 . Though many of these unwanted solicitations invade individuals' right to be left alone in their homes, a location accorded special protection, Hill formulated this right as one that applies more broadly, with special but not exclusive force in the home. Hill, 530 U.S. at 717, 120 S.Ct. 2480. 16 . This reasoning also disposes of plaintiffs’ assertion that section 1711-E(2-A) is a prior restraint on their speech because it allows prescribers to prevent plaintiffs from transferring or using their data. That argument rests on the mistaken assumption that plaintiffs have an absolute right to obtain prescriberidentifying data and to use it to facilitate unwelcome detailing practices. 17 . Plaintiffs also introduced evidence on an AMA initiative that allows medical doctors to signal that they do not want their prescribing data used in detailing. But the AMA has no real power to limit plaintiffs' and other intermediaries' use of this data; compliance is monitored only through complaints to the AMA, and enforcement depends on plaintiffs’ and other intermediaries' goodwill prevailing over the strong financial incentives to use this data. Moreover, the AMA scheme does not cover a host of prescribers like nurse practitioners or osteopathic physicians, who might want to protect their prescribing data but are ineligible for the AMA scheme. The Commerce Clause, which gives Congress the authority to "regulate Commerce... among the several States," U.S. Const. art. I, § 8, cl. 3, also carries negative or implicit consequences for states’ authority to regulate interstate commerce, referred to as the "dormant Commerce Clause.

2010-08-04

United States Court of Appeals for the First Circuit

IMS Health Inc. v. Mills

IMS Health Inc. v. Mills, 616 F.3d 7 (2010)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_5

regulate Commerce ... among the several States.

N. Alaska Salmon Co. v. Pillsbury, 174 Cal. 1, 162 P. 93 (1916); see also Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 320 N.W.2d 843, 854 (1982); 73 Am.Jur.2d Statutes § 250 (2010). Numerous types of state statutes have extraterritorial effect. See, e.g., State v. Flores, 218 Ariz. 407, 188 P.3d 706, 710 (Ct.App.2008) (criminal laws); Boca Petroco, Inc. v. Petroleum Realty II, LLC, 285 Ga. 487, 678 S.E.2d 330, 333-34 (2009) (lis pendens statutes); Heath Consultants, Inc. v. Precision Instruments, Inc., 247 Neb. 267, 527 N.W.2d 596, 607 (1995) (antitrust law). 23 . The Maine Attorney General has argued that the law regulates persons or entities over whom Maine can exercise personal jurisdiction. That interpretation states a limitation on any extraterritorial application of a statute: it must comport with the requirements of the Due Process and Full Faith and Credit Clauses. Allstate Ins. Co. v. Hague, 449 U.S. 302, 308, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). Plaintiffs have not argued that section 1711-E(2-A)’s application to their out-of-state transactions would violate those provisions. But that does not by definition alleviate constitutional concerns under the dormant Commerce Clause, which serves different purposes. Quill Corp. v. North Dakota, 504 U.S. 298, 312-13, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992). This limitation on states’ powers is grounded in the historical origins of the Commerce Clause, which gives Congress the power to “regulate Commerce... among the several States.

2016-06-15

United States Court of Appeals for the Eighth Circuit

North Dakota v. Heydinger

North Dakota v. Heydinger, 825 F.3d 912 (2016)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_5

regulate Commerce ... among the several States.

City of Houston v. Hill, 482 U.S. 451, 468, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (quotation and alteration omitted); see Middle S. Energy, Inc. v. Ark. Pub. Serv. Comm’n, 772 F.2d 404, 418 (8th Cir. 1985), cert. denied, 474 U.S. 1102, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986). IV. The Commerce Clause grants to Congress the power to “regulate Commerce... among the several States.

2006-01-05

United States Court of Appeals for the Eighth Circuit

IESI AR Corp. v. Northwest Arkansas Regional Solid Waste Management District

IESI AR Corp. v. Northwest Arkansas Regional Solid Waste Management District, 433 F.3d 600 (2006)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_1

the burden it imposes upon interstate commerce is ‘clearly excessive in relation to the putative local benefits.’

” Second, a law that does not overtly discriminate against interstate commerce, but instead regulates even-handedly, will still be invalidated if “the burden it imposes upon interstate commerce is ‘clearly excessive in relation to the putative local benefits.

2006-01-05

United States Court of Appeals for the Eighth Circuit

IESI AR Corp. v. Northwest Arkansas Regional Solid Waste Management District

IESI AR Corp. v. Northwest Arkansas Regional Solid Waste Management District, 433 F.3d 600 (2006)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_1

the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.

Like any other local market regulation, Ordinance 12 may or may not encourage companies from doing business in the state. But while this may be a relevant concern in forming economic policies, it is simply not the proper inquiry for considering discrimination under the Commerce Clause. Plaintiffs’ analysis would render virtually all local economic regulations “discriminatory” and subject them to “per se” invalidation. This would vastly expand the implications of the dormant Commerce Clause, and we decline to follow such a course. Id. at 1386-87 (citations omitted). In this case, although a subsidiary of a larger interstate company, IESI AR is itself an Arkansas corporation, complicating its claim of discrimination against interstate commerce. Moreover, the District’s regulation parallels the ordinance “as enforced” in Oehrleins. IESI AR cannot complain about this regulation because it applies equally to all businesses operating in the state. IESI AR provides no evidence that out-of-state businesses suffered greater than in-state, but out-of-District, businesses. Under the regulation, IESI AR may transfer solid waste to any IESI landfill outside Arkansas. However, IESI AR’s real complaint is that it cannot transfer additional waste to its in-state landfill without the District’s approval — which applies equally to all businesses regardless of location. Because the regulation does not favor in-state economic interests over out-of-state interests, it does not discriminate in effect, and survives the first tier of dormant Commerce Clause analysis. A regulation that is not overtly discriminatory against interstate commerce may still be invalidated under the second tier: the Pike balancing test. See U & I Sanitation, 205 F.3d at 1067. This test requires balancing a legitimate local public interest against its incidental burden on interstate commerce. A regulation will be invalidated only when “

2005-06-08

United States District Court for the District of North Dakota

Minnesota ex rel. Hatch v. Hoeven

Minnesota ex rel. Hatch v. Hoeven, 370 F. Supp. 2d 960 (2005)

2002-05-06

United States Court of Appeals for the Eighth Circuit

Southern Union Co. v. Missouri Public Service Commission

Southern Union Co. v. Missouri Public Service Commission, 289 F.3d 503 (2002)

9434476_5

[t]o regulate Commerce ... among the several States.

We do not decide the full range of activities that are sufficiently basic to the livelihood of the- Nation that the States may not interfere with a non-resident’s participation therein without similarly interfering with a resident’s participation.' Whatever rights or activities may be “fundamental”' under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by’ non-residents in Montana is not one of -them.'•. Id. at 388, 98 S.Ct. 1852. A significant number of states, in addition to North Dakota, differentiate between residents and non-residents in their respective hunting and fishing regulations: 'Further, vir tually all states have license fee differentials that prefer residents. There is no question that the Supreme Court’s pronouncement in Baldwin is controlling. Minnesota appears to recognize the vitality of Baldwin, in that it fails to engage in a serious discussion of the Privileges and Immunities Clause in its briefs. The Court finds that the reasoning of the United States Supreme Court as set forth in Baldioin is equally applicable to the current dispute. Access to recreational hunting by non-residents is simply not protected by the Privileges and Immunities Clause. As a result, the Court finds that Minnesota’s claims based on the Privileges and Immunities Clause fail as a matter of law. B. COMMERCE CLAUSE Minnesota’s remaining claims allege that North Dakota has violated the Commerce Clause through its non-resident hunting regulations. Minnesota asserts that the hunting of waterfowl is commerce and subject to the dictates of the Commerce Clause. The Commerce Clause grants to Congress the power “[t]o regulate Commerce... among the several States.

2004-08-04

United States District Court for the Western District of Kentucky

Heinz v. Grand Circle Travel

Heinz v. Grand Circle Travel, 329 F. Supp. 2d 896 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_6

forum selection clauses in contracts do not deprive courts of jurisdiction

Compare Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 948 (6th Cir.2002) (stating in dicta that “

2004-10-12

United States Court of Appeals for the Third Circuit

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co.

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co., 386 F.3d 263 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_9

prescribe regulations establishing the general method or methods by which proved and approved claims for losses may be adjusted and paid for any damage to or loss of property which is covered by flood insurance.

” Id. Congress authorized FEMA to “

2004-10-12

United States Court of Appeals for the Third Circuit

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co.

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co., 386 F.3d 263 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_4

a suit against a WYO company is the functional equivalent of a suit against FEMA,

44 C.F.R. § 62.23(i)(6). Our Court recently evaluated the NFIA in Van Holt. In light of the strong federal interests intertwined with the administration of the Program, we concluded that federal courts are the appropriate and exclusive arbiters of Policy-related disputes. As noted, Van Holt is markedly similar to today’s case. The plaintiff in Van Holt filed successive claims with its WYO insurance provider, Liberty Mutual, for flood damage. Liberty Mutual concluded that the claims were fraudulent and refused to approve the damages claimed from the second flood. The Van Holts sued Liberty Mutual in the United States District Court for the District of New Jersey, alleging that it had committed state law torts. Our Court initially held that the District Court lacked subject matter jurisdiction over the state law claims. On rehearing, however, we reversed path, concluding that the District Court had jurisdiction. 163 F.3d at 167. Our decision turned on the collapse of two distinctions. Though the language of the statute speaks explicitly only of suits against FEMA, we held that “

2004-10-12

United States Court of Appeals for the Third Circuit

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co.

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co., 386 F.3d 263 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_0

FEMA regulations require a WYO company to defend claims but assure that FEMA will reimburse the WYO company for defense costs.

Though the language of the statute speaks explicitly only of suits against FEMA, we held that “a suit against a WYO company is the functional equivalent of a suit against FEMA,” id. at 166, because a WYO company is a fiscal agent of the United States. Moreover, “

2004-10-12

United States Court of Appeals for the Third Circuit

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co.

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co., 386 F.3d 263 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_14

when [1] it is impossible to comply with both the state and the federal law, or [2] when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Id. at 881-82. While the case predates Part B of the statute, its reasoning is only more persuasive given the expansion of federal involvement in the Program. Conflict preemption, the final form, occurs “

2004-10-12

United States Court of Appeals for the Third Circuit

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co.

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co., 386 F.3d 263 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_7

If you [sue us], you must start the suit within one year of the date of the written denial of all or part of the claim, and you must file the suit in the United States District Court of the district in which the insured property was located at the time of loss.

Moreover, pursuant to 44 C.F.R. § 62.23(i)(6), "the responsibility for defending claims will be upon the Write Your Own Company and defense costs will be part of the unallocated or allocated claim expense allowance....” 10 . Relying on these and similar provisions, C.E.R. argues that FEMA anticipated that WYO insurers would be sued under state law for actions arising from their administration of Policies. We reject C.E.R.'s approach because we see no reason why litigation based on improper claims-handling must mean state law litigation. In fact, the updated Policy set out at 44 C.F.R. pt. 61, app. A(l), indicates the contrary interpretation. In its current form, the Policy appears explicitly to preempt state law tort suits, 44 C.F.R. pt. 61, app. A(l), art. IX (2002), but nonetheless contemplates that lawsuits against FEMA and WYO insurers may proceed. “

2004-10-12

United States Court of Appeals for the Third Circuit

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co.

C.E.R. 1988, Inc. v. Aetna Casualty & Surety Co., 386 F.3d 263 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_3

[M]ost courts have consistently found that NFIA preempts state law claims that are based on the handling and disposition of [Policy] claims.

Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 949 (6th Cir. 2002) ("

2004-05-21

United States Court of Appeals for the Fourth Circuit

Studio Frames Ltd. v. Standard Fire Insurance

Studio Frames Ltd. v. Standard Fire Insurance, 369 F.3d 376 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_11

an action institute[d] against the Director

And, indeed, there is substantial disagreement among the circuits as to whether section 4072 establishes “original exclusive jurisdiction” over claims, such as this one, brought by an insured against the WYO carrier through whom it acquired flood insurance, as opposed to “

2004-05-21

United States Court of Appeals for the Fourth Circuit

Studio Frames Ltd. v. Standard Fire Insurance

Studio Frames Ltd. v. Standard Fire Insurance, 369 F.3d 376 (2004)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_4

a suit against a WYO company is the functional equivalent of a suit against FEMA,

Compare Downey v. State Farm Fire & Cas. Co., 266 F.3d 675, 680 (7th Cir.2001) (refusing to "disregard not only the identity of the litigants but also the fact that § 4072 is limited to suits against the Director" and holding that section 4072 does not create jurisdiction for suits against WYO companies) with Van Holt v. Liberty Mutual Fire Ins. Co., 163 F.3d 161 (3d Cir.1998) (explaining that because "

2005-06-30

United States District Court for the District of New Mexico

Roybal v. Los Alamos National Bank

Roybal v. Los Alamos National Bank, 375 F. Supp. 2d 1324 (2005)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_10

We adopt the Third Circuit’s reasoning and hold that § 4072 provides exclusive subject matter jurisdiction over suits against a WYO insurance company arising out of a disputed flood insurance claim.

Accord Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 947 (6th Cir.2002)(“

2007-08-15

United States District Court for the Eastern District of Michigan

Fednav, Ltd. v. Chester

Fednav, Ltd. v. Chester, 505 F. Supp. 2d 381 (2007)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_2

Preemption of a whole field also will be inferred where the- field is one in which ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’

United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000); see also Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (“Preemption of a whole field also will be inferred where the- field is one in which ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.

2007-08-15

United States District Court for the Eastern District of Michigan

Fednav, Ltd. v. Chester

Fednav, Ltd. v. Chester, 505 F. Supp. 2d 381 (2007)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_14

compliance with both federal and state, regulations is a physical impossibility,

Plaintiffs further argue that regulation of ballast water discharge should be the province of federal and not state law, and therefore the Ballast Water Statute must be. preempted. (See, e.g., Tr. 6:13-22.) They rely on storied documents in our nation’s history for the importance of federal uniformity in issues such as interstate and foreign trade. (See, e.g., Pis. Resp. Br. to C & C Mot. to Dismiss 19 citing The Federalist) The problem with this argument is not in any internal illogic, but instead that it is made to the wrong branch of government. It may be true that the detriment to the shipping industry of inconsistent regulations for ports in different states far outweighs any benefit to the environment that Michigan’s statute provides. This is a policy decision that Congress must make, and ensuring that Congress has the power to make such a decision is precisely the victory for which the authors of the Federalist Papers advocated and won. In light of Congress’s clear intent to permit states to pass laws such as this, and the federal executive branch’s interpretation of this law, it is clear that no preemption exists. If Plaintiffs and like-situated bodies want to make the policy argument that federal law should preempt all state regulation of ballast water management, they are free to do so before Congress. In the meantime, this Court refuses to invalidate a state statute by finding it preempted by a federal statute and regulations that encouraged this very sort of state regulation with no basis but Plaintiffs’ arguments in political theory. In light of this evidence, I find that Plaintiffs cannot state a claim that the Ballast Water statute is invalid pursuant to field preemption. B. To find conflict preemption, I would have to find either that “

2007-08-15

United States District Court for the Eastern District of Michigan

Fednav, Ltd. v. Chester

Fednav, Ltd. v. Chester, 505 F. Supp. 2d 381 (2007)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_14

stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

To find conflict preemption, I would have to find either that “compliance with both federal and state, regulations is a physical impossibility,” or that the state law “

2007-05-14

United States District Court for the Western District of Michigan

Inverness Holdings, Ltd. v. Schaafsma

Inverness Holdings, Ltd. v. Schaafsma, 501 F. Supp. 2d 1027 (2007)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_8

Dismissal of a complaint because it is barred by the statute of limitations is proper when ‘the statement of the claim affirmatively shows that the plaintiff can prove no set of facts that would entitle him to relief.’

’ ” “Dismissal of a complaint because it is barred by the statute of limitations is proper when ‘the statement of the claim affirmatively shows that the plaintiff can prove no set of facts that would entitle him to relief.

2013-06-27

United States District Court for the Southern District of Ohio

Bracken v. DASCO Home Medical Equipment, Inc.

Bracken v. DASCO Home Medical Equipment, Inc., 954 F. Supp. 2d 686 (2013)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_6

[F]orum selection clauses in contracts do not deprive courts of jurisdiction

Celotex, 477 U.S. at 322, 106 S.Ct. 2548. However, under Rule 56(d), if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify the opposition, the court may (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Fed.R.Civ.P. 56(d). III. ANALYSIS DES and Cornerstone move to dismiss Bracken’s claims on three separate grounds. The Court will address each ground below. A. Forum Selection Clause DES and Cornerstone contend that the claims against them should be dismissed because the Forum Selection Clause in the Agreement between DASCO and Bracken requires that the action be maintained in the state courts of Franklin County, Ohio. (See Doc. 7-1). The Court disagrees. See Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 948 (6th Cir.2002) (“

2015-01-09

United States District Court for the Eastern District of Michigan

Barry v. Corrigan

Barry v. Corrigan, 79 F. Supp. 3d 712 (2015)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_15

Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, “state laws that interfere with, or are contrary to the laws of congress, made in pursuance of the constitution are invalid.

”); Cambero v. Commissioner, No. 06-00551 (W.D.Mich. Sept. 10, 2007); Blakely v. Commissioner, 330 F.Supp.2d 910 (W.D.Mich.2004); Hull v. Barnhart, 336 F.Supp.2d 1113 (D.Or.2004); Garnes v. Barnhart, 352 F.Supp.2d 1059 (N.D.Cal.2004); Thomas v. Barnhart, 2004 WL 1529280 (D.Me. June 24, 2004). Based on the plain language of section 2015(k) of the SNAP Act and the parallel language in § 1382(e)(4)(A)© of the Social Security Act, the Court finds that Michigan’s Social Welfare Act, Mich. Comp. Laws § 400.10b and DHS’ fugitive felon policy, as currently embodied in BEM 204, impose requirements upon applicants for and recipients of food assistance benefits that exceed the requirements imposed by the SNAP Act. Because 7 U.S.C. §§ 2014(b) and 2020(e)(5) expressly prohibit states from imposing additional eligibility requirements, Michigan cannot disqualify a person based solely on the existence of an outstanding felony warrant. That amounts to requiring a person not to have any outstanding felony warrants to be eligible for SNAP benefits, a requirement that goes beyond the requirements of the SNAP Act. The Court accordingly finds that Mich. Comp. Laws § 400.10b and BEM 204 deprive plaintiffs of their right to food assistance benefits in violation of the SNAP Act. 4. “

2015-10-01

United States Bankruptcy Court for the Southern District of Ohio

In re Davis

In re Davis, 539 B.R. 334 (2015)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_2

Implied preemption occurs if a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, if the Act of Congress ... toueh[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or if the goals sought to be obtained and the obligations imposed reveal a purpose to preclude state authority.

Id. (citing In re Depascale, 496 B.R. 860, 874 (Bankr. N.D.Ohio 2013)). in. The Bankruptcy Code preempts any prohibition of the application of the 2013 Amendment to the instant case by the Ohio Constitution.' There are three different types of preemption under the Supremacy Clause of the United States Constitution: (1) express preemption; (2) implied preemption; and (3) conflict preemption. Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 948-49 (6th Cir.2002). Express preemption occurs when state action is foreclosed by the express language in a congressional enactment. “Implied preemption occurs if a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, if the Act of Congress... toueh[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or if the goals sought to be obtained and the obligations imposed reveal a purpose to preclude state authority.

2015-10-01

United States Bankruptcy Court for the Southern District of Ohio

In re Davis

In re Davis, 539 B.R. 334 (2015)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_14

compliance with both federal and state regulations is a physical impossibility, or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Conflict preemption occurs when “

2014-01-06

United States District Court for the Eastern District of Kentucky

Dillon v. Medtronic, Inc.

Dillon v. Medtronic, Inc., 992 F. Supp. 2d 751 (2014)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_11

shall be by and in the name of the United States

Strong, 78 F.3d at 260. As a result, absent a federal remedy the Dillons could have invoked, the defendants’ claims of preemption remain only a defense that does not satisfy the well-pleaded complaint rule. The essential federal cause of action is missing from the MDA. To the Court’s knowledge, only one appellate court has addressed whether the MDA so completely preempts state law as to support federal jurisdiction. Unfortunately for Medtronic, that court is the Sixth Circuit in Strong, which rejected complete preemption. 78 F.3d at 259-61. See 21 U.S.C. § 337(a) (providing that all actions to enforce the Act “

2016-08-08

United States Court of Appeals for the Sixth Circuit

Harris v. Nationwide Mutual Fire Insurance

Harris v. Nationwide Mutual Fire Insurance, 832 F.3d 593 (2016)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_9

prescribe regulations establishing the general method or methods by which proved and approved claims for losses may be adjusted and paid for any damage to or loss of property which is covered by flood insurance.

” Ind. State Dist. Council of Laborers v. Omnicare, Inc., 583 F.3d 935, 942 (6th Cir. 2009). III. The NFIA aims to foster availability of affordable flood insurance. To that end, Congress authorized FEMA to “

2016-08-08

United States Court of Appeals for the Sixth Circuit

Harris v. Nationwide Mutual Fire Insurance

Harris v. Nationwide Mutual Fire Insurance, 832 F.3d 593 (2016)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_3

the handling and disposition of SFIP claims.

The NFIA indisputably preempts state-law causes of action based on “

2016-08-08

United States Court of Appeals for the Sixth Circuit

Harris v. Nationwide Mutual Fire Insurance

Harris v. Nationwide Mutual Fire Insurance, 832 F.3d 593 (2016)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_14

stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress

C.E.R. 1988, Inc., 386 F.3d at 270. It is possible to comply with both state tort laws and FEMA regulations, and state laws regarding misrepresentation and breach of fiduciary duty in the policy-procurement process do not “

2006-09-29

United States District Court for the District of Maryland

Moffett v. Computer Sciences Corp.

Moffett v. Computer Sciences Corp., 457 F. Supp. 2d 571 (2006)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_9

the general method or methods by which proved and approved claims for losses under such policies may be adjusted and paid.

FEMA is authorized to promulgate regulations as to “the general terms and conditions of insurability which shall be applicable to properties eligible for flood insurance coverage,” and as to “

2006-09-29

United States District Court for the District of Maryland

Moffett v. Computer Sciences Corp.

Moffett v. Computer Sciences Corp., 457 F. Supp. 2d 571 (2006)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_11

In the event the program is carried out as provided in section 1340 [42 U.S.C. § 4071], the Director shall be authorized to adjust and make payment of any claims for proved and approved losses covered by flood insurance, and upon the disallowance by the Director of any such claim, or upon the refusal of the claimant to accept the amount allowed upon any such claim, the claimant, within one year after the date of mailing of notice of disal-lowance or partial disallowance by the Director, may institute an action against the Director on such claim in the United States district court for the district in which the insured property or the major part thereof shall have been situated, and original exclusive jurisdiction is hereby conferred upon such court to hear and determine such action without regard to the amount in controversy

We have not authorized the adjuster to approve or disapprove claims or to tell you whether we will approve your claim”). Id. Art. VII(P); 42 U.S.C. § 4072 (“

2006-09-29

United States District Court for the District of Maryland

Moffett v. Computer Sciences Corp.

Moffett v. Computer Sciences Corp., 457 F. Supp. 2d 571 (2006)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_4

a suit against a WYO company is the functional equivalent of a suit against FEMA

Although the provision conferring jurisdiction on the courts speaks only in terms of “an action against the Director,” “

2006-09-29

United States District Court for the District of Maryland

Moffett v. Computer Sciences Corp.

Moffett v. Computer Sciences Corp., 457 F. Supp. 2d 571 (2006)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_14

a state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’

Conflict preemption comes in two forms: (1) “a direct conflict between state and federal law, such that compliance with both is impossible,” and (2) where “a state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

2006-09-29

United States District Court for the District of Maryland

Moffett v. Computer Sciences Corp.

Moffett v. Computer Sciences Corp., 457 F. Supp. 2d 571 (2006)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_1

It is unnecessary for us to decide whether policy procurement type state law claims are preempted by NFIA

See Wright, 415 F.3d at 390 (“We join these circuits in holding that state law tort claims arising from claims handling by a WYO are preempted by federal law” (emphasis added)); C.E.R., 386 F.3d at 271 n. 12 (“We need not decide today whether a case alleging misrepresentation in claims procurement would also be preempted”); Gibson, 289 F.3d at 949-50 (“

2015-08-18

United States District Court for the Eastern District of Michigan

Ingenium Technologies Corp. v. Beaver Aerospace & Defense, Inc.

Ingenium Technologies Corp. v. Beaver Aerospace & Defense, Inc., 122 F. Supp. 3d 683 (2015)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_6

[F]orum selection clauses in contracts do not deprive courts of jurisdiction

■ It is true here that the defendant called the plaintiffs and the Court’s attention to the forum selection clause within a month of the lawsuit’s commencement. But it did so in a proeedurally inept way by challenging subject matter jurisdiction. See Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 948 (6th Cir.2002) (“

2007-01-23

United States District Court for the Eastern District of Michigan

Bennett v. America Online, Inc.

Bennett v. America Online, Inc., 471 F. Supp. 2d 814 (2007)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_6

[w]hile forum selection clauses in contracts do not deprive courts of jurisdiction, they are presumptively valid

Similarly, this Court finds that it has no authority under the plain language of section 1404(a) to transfer the action against defendant Tucows because the case could not have been brought against that defendant in the Eastern District of Virginia. The Court also finds that the prospect of severing the action to give effect to the forum selection clause would require the case to be litigated in two forums and work a hardship against the plaintiff so as to counter-balance the other factors that must be considered when evaluating transfer motions. With respect to the convenience of the parties and witnesses, it appears that the proofs in the case largely will be documentary. When considering accessibility to sources of proof, the Court is mindful that much of the information is stored in digital form, which is highly portable and accessible virtually anywhere a party has access to a computer and an internet connection. Presumably, AOL has the capacity to gain such access. Neither party has suggested that Michigan is a more expensive forum to try the case, but the plaintiff has provided persuasive information of the hardship that would be visited on him in having to travel to Virginia to pursue his claim. The difference in the' docket burdens of the two courts is negligible, and the other factors do not militate in favor of transfer, except, of course, for the forum selection clause, which would be a weighty matter in favor of transfer if the Court did not find that it is outweighed by the interests of justice in avoiding a severance. See Gibson v. American Bankers Ins. Co., 289 F.3d 943, 948 (6th Cir.2002) (observing that “

2006-04-13

United States Court of Appeals for the Second Circuit

Palmieri v. Allstate Insurance

Palmieri v. Allstate Insurance, 445 F.3d 179 (2006)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_9

prescribe regulations establishing the general method or methods by which proved and approved claims for losses may be adjusted and paid for any damage to or loss of property which is covered by flood insurance.

See 42 U.S.C. § 4001(b) (“[M]any factors have made it uneconomic for the private insurance industry alone to make flood insurance available to those in need of such protection on reasonable terms and conditions”). Under the Act, the federal government provides flood insurance subsidies and local officials are required to adopt and enforce various management measures. See id. §§ 4002(b)(3), 4012(c), 4022; 44 C.F.R. §§ 60.2-60.7. The National Flood Insurance Program (“NFIP”) created by the Act is administered by the Federal Emergency Management Agency (“FEMA”) and supported by the federal treasury, which pays for claims that exceed the revenues collected by private insurers from flood insurance premiums. Congress has authorized FEMA to “

2006-04-13

United States Court of Appeals for the Second Circuit

Palmieri v. Allstate Insurance

Palmieri v. Allstate Insurance, 445 F.3d 179 (2006)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_4

functional equivalent of a suit against FEMA

The statute includes the following jurisdictional language: [U]pon the disallowance by the Director of any such claim, or upon the refusal of the claimant to accept the amount allowed upon any such claim, the claimant, within one year after the date of mailing of notice of disallowance or partial disallowance by the Director, may institute an action against the Director on such claim in the United States district court Id. This case requires us to determine whether an action against the Director’s fiscal agent is “an action against the Director” under § 4072. In Van Holt, the Third Circuit held that § 4072 creates subject-matter jurisdiction for claims against WYO insurance companies. Accepting the arguments of the United States as amicus curiae, see id. at 166, the court noted “several reasons” for finding a suit against a WYO company to be the “

2006-04-13

United States Court of Appeals for the Second Circuit

Palmieri v. Allstate Insurance

Palmieri v. Allstate Insurance, 445 F.3d 179 (2006)

2002-05-16

United States Court of Appeals for the Sixth Circuit

Gibson v. American Bankers Insurance

Gibson v. American Bankers Insurance, 289 F.3d 943 (2002)

9436063_11

The insurance companies and other insurers which form, associate, or otherwise join together in the pool under this part may adjust and pay all claims for proved and approved losses covered by flood insurance in accordance with the provisions of this chapter and, upon the disallowance by any such company or other insurer of any such claim, or upon the refusal of the claimant to accept the amount allowed upon any such claim, the claimant, within one year after the date of mailing of notice of disallowance or partial disallowance of the claim, may institute an action on such claim against such company or other insurer in the United States district court for the district in which the insured property or the major part thereof shall have been situated, and original exclusive jurisdiction is hereby conferred upon such court to hear and determine such action without regard to the amount in controversy.

3 . "