Current Developments in the US District Court for the
Eastern District of New York
Posted: April 14, 2016

Social Security Administration Cannot Be Sued for Failure to Pay Fee Award

On March 21, 2016, the Second Circuit issued a decision in Binder & Binder v. Colvin, 14‐4141-CV and 14‐4457‐CV, affirming decisions by the EDNY that sovereign immunity barred a law firm’s lawsuits against the Social Security Administration for failing to pay fee awards. In Binder & Binder, the plaintiff law firm successfully represented litigants in two actions against the Social...


Posted: April 8, 2016

FDCPA Requires Debt Collector to Disclose That Balance Due May Increase Due to Interest and Fees

On March 22, 2016, the Second Circuit issued a decision in Avila v. Riexinger & Associates, LLC, 15‐1584(L), reversing the EDNY and holding that a debt collector violates the Fair Debt Collection Practices Act if, when it notifies consumers of their account balance, it fails to disclose that the balance may increase due to interest and fees, explaining: Section 1692e...


Posted in EDNY, FDCPA
Posted: March 21, 2016

Hispanic Describes a Race for Purposes of § 1981 and Title VII

On February 16, 2016, the Second Circuit issued a decision in Village of Freeport v. Barrella, 14‐2270‐CV(L), reviewing a decision by the EDNY determining “whether ‘Hispanic’ describes a race for purposes of § 1981 and Title VII.” In Village of Freeport, the plaintiff sued the defendant village and its former mayor “under 42 U.S.C. § 1981, Title VII of the...


Posted in EDNY, Civil Rights
Posted: March 14, 2016

Second Circuit Affirms Decision to Empanel an Anonymous Jury

On February 24, 2016, the Second Circuit issued a decision in United States v. Prado, 13-2894-CR(L), affirming a decision by the EDNY to empanel an anonymous jury, explaining: When genuinely called for and when properly used, anonymous juries do not infringe a defendant’s constitutional rights. A district court may order the empaneling of an anonymous jury upon (a) concluding that...


Posted in EDNY, Juries, Trial
Posted: March 8, 2016

Apple Not Required To Assist U.S. Search Of Drug Dealer’s Phone Under All Writs Act

A lot of media attention is being devoted to Apple’s fight with the U.S. Government over a California Magistrate Judge’s February 16, 2016, ex parte order requiring Apple to assist in the Government’s investigation of the San Bernardino mass shooting by disabling the password security features on the iPhone of one of shooters. But as EDNY Magistrate Judge James Orenstein...


Posted: January 29, 2016

Second Circuit Examines Appealability of Non-Final Orders

On December 9, 2015, the Second Circuit issued a decision in Rodriguez v. Anderson, 14-3828(L), dismissing an appeal because it was from a non-final order. In Rodriguez, both the plaintiff and certain defendants appealed the denial of their motions for summary judgment. The Second Circuit dismissed their appeals, explaining, with respect to the plaintiff’s appeal: The historic rule in the...


Posted in EDNY, Appeals
Posted: January 12, 2016

Court-Appointed Guardian Ad Litem Not a State Actor

On December 22, 2015, the Second Circuit issued a decision in Milan v. Wertheimer, 14‐3527‐CV, holding that court-appointed law guardians are not state actors for the purposes of Section 1983. In Milan v. Wertheimer, the plaintiff brought Section 1983 claims against several defendants, including two lawyers (Fred Wertheimer and Denise Costanza) who were “law guardians, also known as ‘attorney[s] for...


Posted in EDNY, Civil Rights
Posted: December 14, 2015

Court Awards $5 Million In Attorneys’ Fees And Costs In Civil Rights Saga

“The Court assumes familiarity with the facts and procedural history of the case” Judge Joanna Seybert writes in the opening sentence of Restivo v. Nassau County, 06-CV-6720 (E.D.N.Y. Nov. 30, 2015), but it is difficult to appreciate fully the outcome – the award of $5 million in attorneys’ fees and costs to the well-known plaintiffs’ civil rights firm, Neufeld Scheck...


Posted in EDNY, Attorney Fees
Posted: December 10, 2015

Lender Has Standing to Foreclose When it Possesses Note

On November 24, 2015, the Second Circuit issued a decision in Eastern Savings Bank, FSB v. Thompson, 14-4520-CV, reversing the EDNY’s grant of summary judgment to a defendant in a foreclosure action on the ground that the plaintiff lacked standing to bring a foreclosure action because of defects in the chain of assignments of title. In Eastern Savings Bank, the...


Posted in EDNY, Real Property
Posted: December 1, 2015

Suit Against State Court Judges Barred By Younger Abstention Doctrine

On November 12, 2015, the Second Circuit issued a decision in Falco v. Justices of the Matrimonial Parts of the Supreme Court of Suffolk County, 15-863-CV, affirming the dismissal of an action against New York State Supreme Court justices on Younger Abstention Doctrine grounds. In Falco, the plaintiff was ordered by a Suffolk County matrimonial judge to pay half the...


Posted in EDNY, Jurisdiction