MEDIA

December 8, 2006

Answer Amended: Difference in Damages Unacceptable

Published in: New York Law Journal | volume 236

In the U.S. District Court for the Eastern District of New York, Judge David A. Trager allowed a defendant to amend her answer to include an affirmative defense that the alleged thousand-fold discrepancy between damages prescribed under the Copyright Act and actual damages would be constitutionally unacceptable. Judge I. Leo Glasser denied a collateral challenge to a pre-Booker sentence of incarceration, even though the record suggested that, without the mandatory Sentencing Guidelines, petitioner would have received a lesser sentence. Judge Frederic Block assigned pecuniary and nonpecuniary damages under the Death on the High Seas Act. Judge Dennis R. Hurley, citing the Rooker-Feldman doctrine and res judicata, barred a challenge to the foreclosure of property.And Judge Arthur D. Spatt dismissed a complaint under the Federal Tort Claims Act for failure to meet the ‘presentment’ requirement.

Amending Answer: Constitutional Defense

In UMG Recordings, Inc. v. Lindor, CV051095 (EDNY, Nov. 9, 2006), a copyright action based on unauthorized music downloads, Judge Trager granted defendant leave to amend her answer to assert, as an affirmative defense, that the statutory damages available under the Copyright Act would be constitutionally excessive.

Defendant presented evidence that the statutory damages of $750 per sound recording were 1,071 times plaintiffs’ actual damages. Accepting this as true for purposes of the motion to amend, the court found not frivolous an affirmative defense that the disparity rendered the statutory damages unconstitutional.

Plaintiffs’ remaining arguments in opposing amendment were rejected because: (i) the asserted undue delay in seeking amendment occurred mostly while defendant was proceeding pro se, and caused no prejudice to plaintiffs, and (ii) contrary to plaintiffs’ argument, the court, rather than defendant, was obliged to provide notice to the attorney general that the constitutionality of a federal statute affecting the public interest had been challenged.

Sentencing: Waiver of Right to Appeal

In Adesina v. United States, 06 CV 872 (EDNY, Nov. 15, 2006), Judge Glasser denied a § 2255 petition challenging a pre-Booker sentence of 41 months’ incarceration, which fell within the then ‘mandatory’ Sentencing Guidelines range. The court had indicated at sentencing that, but for the mandatory guidelines range of 41 to 51 months, it would have imposed a sentence of only 30 months. But the plea agreement’s waiver of the right to appeal the sentence disposed of petitioner’s claim here, despite the changes in sentencing law that occurred after the agreement was signed.

In June 2004 petitioner, an alien with a prior criminal record, pleaded guilty to entering the United States without permission while he was subject to an Order of Deportation. A paragraph in the plea agreement stated that ‘defendant will not file an appeal or otherwise challenge the conviction or sentence’ if the term of imprisonment is 57 months or less.

The sentencing took place in September 2004, after the Supreme Court’s decision in Blakely v. Washington, 542 US 296 (2004), which cast doubt on the constitutional validity of the federal Sentencing Guidelines, but before its decision in United States v. Booker, 543 US 220 (2005), which actually invalidated portions of the guidelines to the extent that they mandated sentences within certain ranges. At the time of petitioner’s sentence, the U.S. Court of Appeals for the Second Circuit had held that, ‘until the Supreme Court rules otherwise, the courts of this Circuit will continue fully to apply the Guidelines.’ United States v. Mincey, 380 F3d 102 (2d Cir. 2004).

During the sentencing, defense counsel asked the court, for the record, what sentence it would impose if the mandatory guidelines did not apply. Judge Glasser answered ’30 months.’

In an unpublished decision, the Second Circuit dismissed petitioner’s appeal of his sentence. Petitioner later filed this § 2255 petition alleging constitutional error and requesting a resentencing in line with the ‘alternative’ sentence of 30 months.

While ‘sympathetic’ to petitioner’s position, Judge Glasser emphasized that, under clear Second Circuit law, a pre-Booker waiver of the right to appeal a sentence remains binding on a defendant. See United States v. Haynes, 412 F3d 37 (2d Cir. 2005). As Judge Glasser observed, petitioner made a knowing and voluntary decision to plead guilty in return for certain concessions from the government and other benefits. The waiver of the right to appeal or challenge the sentence ‘is enforceable even as to subsequent changes in the law that were not anticipated at the time the waiver was made.’

Death on the High Seas Act

In Makary v. EgyptAir (In re Air Crash Near Nantucket Island, Massachusetts, on Oct. 31, 1999), 00 CV 1388 (EDNY, Nov. 27, 2006), Judge Block determined pecuniary and nonpecuniary damages, under the Death on the High Seas Act (DOHSA), 46 USC § § 761-768, for the family of Sami Makary, a passenger on EgyptAir Flight 990, which crashed on its way from New York to Cairo on Oct. 31, 1999. EgyptAir did not contest liability.

At the time of the crash Sami Makary was 28 years old and was survived by his parents, his four sisters, his younger brother and a young cousin who had lived with the family since infancy. Sami, an Egyptian university graduate who started his own import/export business, had lived in the United States since December 1998. Up until his death, Sami was providing $2,000 per month to his parents and income supplements and school fees to his siblings and his cousin.

Under DOHSA, beneficiaries are entitled to recover pecuniary and nonpecuniary damages. The nonpecuniary damages include ‘loss of care, comfort, and companionship’ and ‘loss of society,’ but not ‘grief and mental anguish.’ DOHSA restricts beneficiaries to the decedent’s ‘wife, husband, parent, child, or dependent relative.’ Listed dependents, like the siblings and cousin here, must prove both dependency and loss.

Judge Block concluded that Sami’s siblings and cousins all qualified as dependent relatives, because Sami ‘regularly gave his siblings and cousin Emad money to pay for food, clothing, extraordinary medical treatment, private school tuition, or, in the case of Samia and Evon, to supplement their household incomes during periods of financial strain.’ Slip op. 9. Thus, they along with Sami’s parents were entitled to damages for loss of support or loss of society.

Judge Block analyzed the contributions that Sami had made to each of his surviving beneficiaries and considered Sami’s age and earning capacity, as well as the situation and ages of surviving beneficiaries. The court then determined nonpecuniary damages by reviewing federal and state court decisions. As Judge Block observed, Sami’s parents were very close to him during his life, ‘and their loss of care, comfort and companionship was heightened by the loss of their eldest son, a central figure in the Egyptian family and, certainly, a central figure in the Makary family.’ Slip op. 16.

The court awarded Sami’s father $630,000 and his mother $680,000, reflecting the difference in their life expectancies, and $125,000 to each of Sami’s siblings and his cousin.

‘Rooker-Feldman’ Doctrine

In Mac Pherson v. State Street Bank and Trust Co., 05 Civ. 2960 (EDNY, Sept. 20, 2006), Judge Hurley, granting defendant’s motion for judgment on the pleadings, dismissed plaintiff’s Fourteenth Amendment Due Process challenge to the foreclosure of his property. The court held that it lacked subject matter jurisdiction under the Rooker-Feldman doctrine, which prohibits federal courts from hearing cases that amount to appeals of state court proceedings. Alternatively, the court dismissed the action based on res judicata.

Plaintiff defaulted in payment of his mortgage held by defendant about a year after he purchased the property. Defendant commenced a foreclosure action in state court. Although defendant made efforts to serve plaintiff personally, it was unable to do so. As a result, defendant obtained permission from the court to serve notice on plaintiff via publication. Plaintiff never appeared and, in June 2003, the state court issued a judgment of foreclosure and sale.

In February 2004, plaintiff sought to vacate the judgment of foreclosure and sale for lack of proper notice. The state court denied the motion to vacate without prejudice to plaintiff’s right to redeem by paying amounts due on the judgment of foreclosure before May 2004. Plaintiff never made any payments to redeem the property, and the property was conveyed to defendant in the foreclosure action.

Plaintiff appealed to the Second Department, arguing that service by publication did not satisfy due process, because defendant had not established that all reasonable efforts had been made to personally serve him. The Second Department affirmed the state trial court in March 2005. Plaintiff then brought suit in federal court alleging (1) service by publication alone had deprived plaintiff of his property without due process; (2) defendant had committed deceptive acts and practices in violation of the New York General Business Law § 349; and (3) plaintiff was entitled to a declaratory order that he had title to the property and was entitled to possession of it.

Judge Hurley found application of the Rooker-Feldman doctrine appropriate to bar this action. First, plaintiff lost in state court. Second, plaintiff’s alleged injury was caused by the state court judgment, because the state court considered and rejected his constitutional arguments. Thus, plaintiff was basically appealing a prior state court ruling. Third, plaintiff invited the court to review and reject a state court judgment. As Judge Hurley stated: ‘The arguments and relief requested before this Court are precisely the arguments raised by Plaintiff in his Order to Show Cause before the state trial court. ‘ Slip op. 8. Fourth, the state court judgment was rendered before the commencement of district court proceedings.

Alternatively, plaintiff’s action was barred by res judicata, because ‘the claims asserted in the present action were, or could have been, raised in the prior action….’ Slip op. 14.

Federal Tort Claims Act

In Donahue v. United States, 05 CV 3428 (EDNY, Oct. 23, 2006), Judge Spatt dismissed a complaint under the Federal Tort Claims Act (FTCA), 28 USC § § 2671-2680, for lack of subject matter jurisdiction, where before filing suit plaintiffs did not adequately ‘notify’ the appropriate federal agency of the ‘incident’ leading to the claim, or include a request for a ‘sum certain.’

Plaintiff, an employee of American Airlines, filed this suit, along with his wife, against the United States and the Transportation Security Administration (TSA), seeking to recover for personal injuries suffered at LaGuardia Airport in July 2003. In June 2004, plaintiffs timely served on defendants a Notice of Claim, which explained that the accident had occurred in front of the sidewalk to the employee entrance of the American Airlines Terminal, and that it resulted from the parking of an official TSA vehicle in a spot that blocked the entrance.

The FTCA precludes actions against the United States for negligence or wrongful acts unless the claimant has first ‘presented’ the claim to the appropriate federal agency. In addition, no such action shall be instituted for ‘any sum in excess of the amount of the claim presented….’ The applicable regulations provide that a claim is ‘presented’ by ‘written notification’ of the incident, accompanied by a claim for damages in a ‘sum certain.’ The claim must be presented to the agency within two years from the date of accrual.

As Judge Spatt noted, the presentment requirement, which permits the agency to investigate the allegations and estimate the value of the claim, is a prerequisite for a suit under the FTCA. Because the FTCA waives sovereign immunity, compliance with the presentment requirement is jurisdictional.

Plaintiffs’ claims were too conclusory to meet the presentment requirement. As the court stated:

There is no information in the Notice of Claim as to how [plaintiff] was injured, the cause of the injury, how that injury is related in any way to the manner in which a TSA vehicle was parked at LaGuardia, or the nature of the injury.

The Notice of Claim was also defective for failing to demand a ‘sum certain.’

Rather, the Notice of Claim asserted only that plaintiffs incurred ‘hospital, medical and other-related expenses.’

The effect of dismissing the complaint was to bar any recovery under the two-year statute of limitations. While recognizing this ‘harsh result,’ Judge Spatt saw no basis to apply the doctrine of ‘equitable tolling.’ In the court’s view dismissal was ‘not unjust considering the plaintiffs’ minimal burden and the uncomplicated pleading requirements….’

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the December 8, 2006, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]