By Solomon N. Klein, Litigation Partner
The EDNY Blog rarely expresses sentiment – though every blog post is in fact an expression of respect for the Judges of the EDNY and our notion that the EDNY occupies a rightful place among the leading legal institutions in the country.
This upcoming 13th of January will be the tenth anniversary (yartzeit) of the passing of District Judge David Gershon Trager, . . .
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Posted by Solomon N. Klein, Litigation Partner
Judge Brian M. Cogan recently dismissed an insurer’s civil RICO action against dozens of named and unnamed defendants alleging a fraudulent no-fault insurance enterprise. The plaintiff moved for default judgment – only to have the Court analyze the complaint and dismiss the action for failing to properly plead the RICO elements. Am. Trans. Ins. Co. v. Bilyk, 19 civ 5171 (E.D.N.Y. Dec. 14, 2020) (BMC).
A practice note: Litigators are oft-tempted to employ civil RICO claims when representing plaintiffs – and the seeming benefits can be quite enticing. The victimized clients are grateful to mark the defendants as “racketeers” – not to mention the prospect of treble damages. The RICO statute also open the doors to the federal courts and can perhaps solve pesky jurisdictional problems for out-of-state defendants. Yet, civil RICO cases often fail to gain traction and plaintiffs face significant difficulties in properly pleading the necessary elements of RICO actions. As a result, the pleadings face judicial scrutiny and skepticism and the dismissal of the RICO claim, when it’s the only basis for jurisdiction, can result in the entire case being dismissed.
In the case before Judge Cogan, . . .
Posted by Solomon N. Klein, Litigation Partner
Judge Denis R. Hurley recently granted the government’s motion to preclude the defendant from presenting evidence of mental health and drug abuse at his trial – rejecting the defendant’s argument that evidence of mental health and drug abuse was relevant even in the absence of an insanity defense. U.S. v. Redzepagic, 17 CR 228 (E.D.N.Y. Nov. 14, 2020) (DRH).
Posted by Solomon N. Klein, Litigation Partner
In a fact pattern echoing a law school Evidence Exam, Judge Garaufis granted in part and denied in part competing motions in limine regarding admissibility of an emergency 911 call where the victim described being shot by the defendant. United States v. Shipp, 19 CR 29 (E.D.N.Y. Mar. 9, 2020) (NGG).
Posted by Solomon N. Klein, Litigation Partner
Judges DeArcy Hall, Kovner, and Kuntz have each updated their Individual Rules. As a service to practitioners that are already familiar with the Judges’ rules, below are the changes of note and links to the new rules.
Posted by Solomon N. Klein, Litigation Partner
Judge William F. Kuntz, II, recently overruled defendants’ objections to the Report and Recommendation issued by Magistrate Judge Roanne L. Mann, and remanded a personal injury action for lacking the amount in controversy threshold in diversity actions. Daversa v. Cowan Equipment Leasing, LLC, 20-CV-163 (E.D.N.Y. Feb. 28, 2020) (WFK)(RLM).
Posted by Solomon N. Klein, Litigation Partner
The EDNY has announced that it will be filling three vacancies for magistrate judge positions (two in Brooklyn and one in Central Islip). Applications, available here, must be submitted by April 27, 2020.
Posted by Solomon N. Klein, Litigation Partner
Judge Nicholas G. Garaufis has updated his Individual Rules. As a service to practitioners that are already familiar with the Judge’s rules, below are the changes of note.
Posted by Solomon N. Klein, Litigation Partner
In a short but emphatic ruling, Judge Sterling Johnson put an end to a criminal case against an incompetent defendant after rejecting the government’s request to forcibly medicate defendant to restore his competency. United States v. Kendall, 18 CR 532 (E.D.N.Y. Feb. 11, 2020) (SJ).
Posted by Solomon N. Klein, Litigation Partner
In a ruling involving a “very close question” of first impression in this District, Judge Vitaliano held that the recklessness standard applicable to fourth-degree arson in New York was not sufficiently “purposeful” to qualify as a prior “crime of violence” under the “career offender” provisions of the sentencing guidelines. United States v. Saunders, 18 CR 656 (E.D.N.Y. Feb. 6, 2020) (ENV).