Doc 109 NDNY 04-Cv-1193 Order to Dismiss in Re 3 Judge Court With Reconsideration 091008 With Research

8/14/2019 Doc 109 NDNY 04-Cv-1193 Order to Dismiss in Re 3 Judge Court With Reconsideration 091008 With Research

1/47

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

RONALD G. LOEBER, et al.,

Plaintiffs,

-against- 1:04-CV-1193

(LEK/RFT)

THOMAS SPARGO, individually and as Justice of

the NYS Supreme Court, et al.,

Defendants.

ORDER

Presently before the Court is a Motion to Dismiss the Amended Complaint, filed by

Defendants Thomas J. Spargo, Joseph L. Bruno, the State Senate, Sheldon Silver, the State

Assembly, George E. Pataki, Randy A. Daniels, Eliot Spitzer and all members of the NYS Senate

and Assembly previously named therein as John and/or Jane Does (State Defendants) on April 9,

2008, seeking dismissal of the Amended Complaint in its entirety and denial of Plaintiffs request

for a three-judge panel under 28 U.S.C. 2284. Dkt. No. 98. As per the Courts January 8, 2008

Case 1:04-cv-01193-LEK-RFT Document 109 Filed 07/31/08 Page 1 of 7


2/47

the issue of whether the case should be referred to a three-judge panel pursuant to 28 U.S.C. 2284.

Dkt. No. 19.

Plaintiffs then filed the Amended Complaint, bringing forth fourteen (14) causes of action

under HAVA and various other statutes, including 42 U.S.C. 1983 and 1985. Dkt. No. 25. In

addition to HAVA claims, Plaintiffs appear to challenge the reapportionment of the State of New

Yorks current legislative, judicial and congressional districts. Id. at 29. By Decision and Order

dated January 8, 2008, the Court dismissed all claims brought under HAVA and the False Claims

Act, denied Plaintiffs Motion for a preliminary injunction, and dismissed the apportionment claims

as against the City of New York and Federal Defendants, as well as the National Association of

Secretaries of State. Dkt. No. 81. The Court noted that the constitutionality of the redistricting plan

was not yet before the Court at that time and that the State Defendants had not yet been heard on the

issue and deferred decision on whether the redistricting claim required a three-judge court. Id. The

Court further directed the Plaintiffs to name and properly serve the John and Jane Doe defendants or

the action would be dismissed against them. Plaintiffs thereafter served all members of the State

Assembly and State Senate



3/47

Amended Complaint do not pass muster under even the liberal standards of F.R.C.P. 8(a).

A. Legal Standard

As the Supreme Court has recently explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, . . . a plaintiffs obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do. Factual allegations must be

enough to raise a right to relief above the speculative level on the assumption that all

the allegations in the complaint are true (even if doubtful in fact).

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (internal quotations, alterations

and citations omitted). Without some factual allegation in the complaint, it is hard to see how a

claimant could satisfy the requirement of providing not only fair notice of the nature of the claim,

but also grounds on which the claim rests. Id. at 1965 n.3. [A] district court must retain the

power to insist upon some specificity in pleading before allowing a potentially massive factual

controversy to proceed. Id. at 1967 (quoting Associated Gen. Contractors of Cal., Inc. v.

Carpenters, 459 U.S. 519, 528, n. 17 (1983)).

Thus, to survive a Rule 12 motion, Plaintiffs must pass the plausibility standard, which



4/47

challenging the constitutionality of the apportionment of congressional districts or the

apportionment of any statewide legislative body. 28 U.S.C. 2284(a). First, however, to

determine whether a three-judge panel is required, the single judge must inquire (1) whether the

constitutional question raised is substantial; (2) whether the complaint at least formally alleges a

basis for equitable relief; and (3) whether the case presented otherwise comes within the

requirements of the three-judge statute. Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715

(1962).

A single judge may dismiss a claim if the Constitutional claim is insubstantial, Bailey v.

Patterson, 369 U.S. 31, 33 (1962), or if the plaintiff lacks standing or the suit is otherwise not

justiciable in the district court. 17A C. Wright & A. Miller, Federal Practice and Procedure 4235,

at 213 (2007); see also Long v. District of Columbia, 469 F.2d 927, 930 (D.C. Cir. 1972); Puerto

Rican Intern. Airlines, Inc. v. Colon, 409 F.Supp. 960, 966 (D.P.R. 1975) ([S]tanding . . . is a

ground upon which a single judge can decline to convene a three judge court and order dismissal of

the complaint); Am. Commuters Assn v. Levitt, 279 F.Supp. 40, 45-46 (S.D.N.Y. 1967)).

B Analysis of Plaintiffs claims



5/47

districts. Not only does this claim rest on an incorrect assumption that New York City is a single

county, as opposed to consisting of five separate counties, but Article 3, Section 4 was among the

constitutional reapportionment provisions declared unconstitutional in WMCA Inc. v. Lomenzo,

377 US 63 (1963). Accordingly, this claim is hereby dismissed under F.R.C.P. 12(b)(6). A three-

judge panel is not required to address this claim or to dismiss it. See Bailey v. Patterson, 369 U.S.

at 33 (holding that a three-judge panel is not required when the claim that a statute is

unconstitutional is wholly insubstantial, legally speaking nonexistent.)

Plaintiffs remaining causes of action (third, fourth, sixth, seventh, eighth, and twelfth) do

not comprehensibly refer to any federal provisions that are allegedly violated, and do not even all

relate to redistricting or apportionment. The Amended Complaint does not appear to present a1

discernable reapportionment claim under the federal constitution, such that there is no cause to

convene a three-judge panel. Although Plaintiffs claim various injuries including, for example,

discrimination (Am. Compl. 30), rotten boroughs injury ( 32), and disproportionate2

diminished dilution injuries ( 32), the Court is unable to decipher from the Amended Complaint a



6/47

clear Constitutional claim challenging New York States 2002 redistricting plan or the connection of

any alleged Constitutional violations to any particular acts by the State Defendants. Accordingly,

the Amended Complaint may be dismissed without convening a three-judge panel. See e.g.,

Duckworth v. State Board of Elections, 213 F. Supp. 2d 543 (D.M.D. 2002) (dismissing challenge

to Marylands congressional districting plan without referral to three-judge panel).

In addition, the Court notes that a constitutional question is insubstantial if prior decisions

render the issue frivolous and leave no room for any inference of controversy. Goosby v. Osser, 409

U.S. 512, 518 (1973); Bailey v. Patterson, 369 U.S. at 33 (holding that a three-judge panel is not

required when prior decisions make frivolous any claim of unconstitutionality). The redistricting

plan presently challenged by Plaintiffs has already withstood scrutiny under constitutional

challenges including one person-one vote, population-based and gerrymandering. Rodriguez v.

Pataki, 308 F.Supp.2d 346 (S.D.N.Y.), affd, 125 S.Ct. 627 (2004) (granting summary judgment and

dismissing complaint because the redistricting plan did not violate the Fourteenth Amendment or

the Voting Rights Act, but instead reflected traditional districting principles by maintaining equality

of population) That decision upholding the redistricting plan was reached by a three judge panel



7/47

constitution, the Plaintiffs Constitutional claims are hereby dismissed in their entirety.

III. Conclusion

Therefore, based on the foregoing, it is hereby

ORDERED, that the Defendants Motion to Dismiss (Dkt. No. 98) is GRANTED; and it is

further

ORDERED, that Plaintiffs request for a three-judge panel under 28 U.S.C. 2284(a) (Dkt.

No. 104) is DENIED; and it is further

ORDERED, that the Amended Complaint (Dkt. No. 25) is DISMISSED in its entirety; and

it is further

ORDERED, that the Clerk serve a copy of this order on all parties.

IT IS SO ORDERED.

DATED: July 31, 2008

Albany, New York



8/47

====================================================================

* * * * * UNITED STATES DISTRICT COURT * * * * *


JUDGMENT IN A CIVIL CASE

DOCKET NO: 1:04-cv-1193 (LEK/RFT)

RONALD G. LOEBER, et al.,Plaintiff,

THOMAS J. SPARGO, et al.,

Defendant(s).

JURY VERDICT. This action came before the Court for a trial by jury. The

issues have been tried and the jury has rendered its verdict.

XX DECISION by COURT. This action came to trial or hearing before the

Court. The issues have been tried and a decision has been rendered.


9/47


10/47


11/47


12/47


13/47


14/47

STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

ANDREW M. CUOMO STATE COUNSEL DIVISION

Attorney General

Writer Direct: (518) 474-2913

Fax: (518) 473-1572

August 18, 2008

Hon. Lawrence E. Kahn via CM/ECF

United States District Judge

James T. Foley Courthouse

445 Broadway, Room 424Albany, NY 12207-2926

Re: Loeber, et al. v. Spargo, et al.

04-CV-1193 (LEK/RFT)

Dear Judge Kahn:

Please accept this letter brief on behalf of the State Defendants in response to and oppositionto the motion for reconsideration submitted by plaintiff Christopher Earl Strunk (docket #115). For

the reasons set forth below and also set forth in the State Defendants initial moving papers (docket

#98) d l (d k t #102) th ti f id ti h ld b d i d


15/47

While the granting or denial of a motion under such rule is within the broad discretion of the

Court, "[s]ince 60(b) allows extraordinary judicial relief, it is invoked only upon a showing of

exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). "Final judgmentsshould not be lightly reopened." Id.

The standard for granting a motion for reconsideration is strict and the plaintiffs burden in

seeking reconsideration is heavy. The Second Circuit has instructed that "reconsideration will

generally be denied unless the moving party can point to controlling decisions or data that the court

overlooked matters, in other words, that might reasonably be expected to alter the conclusion

reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

A motion for reconsideration "should not be granted where the moving party seeks solely to

relitigate an issue already decided." Id. Furthermore, a motion for reconsideration is not to be used

"for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits,

or otherwise taking a 'second bite at the apple'." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d

Cir. 1998) (citations omitted). This is essentially what the plaintiff is improperly seeking to do in this

instance.

The plaintiff has not pointed to any overlooked controlling decision or constitutional provision

which may reasonably be expected to alter the Court's dismissal of the matter. Instead, the plaintiff

merely claims that the courts Order dismissing the Amended Complaint was outrageous and

disparages our social contact right to a republican form of government in New York. (Docket

#115).

It is respectfully submitted that in the July 31, 2008 Order, the Court properly reviewed the

relevant law and properly applied it to the facts of this case. Specifically, the Court appropriatelyaddressed and rejected the plaintiffs arguments under New York State Constitution Article 3,

Section 4 (see, Order at docket #109 at pp. 4-5) and the plaintiffs potential federal constitutional

challenges to the redistricting plan at issue (Id at pp 5 6) Thus the Courts Order was legally


16/47

DECLARATION OF SERVICE

I, Aaron M. Baldwin, declare pursuant to 28 USC 1746, that on August 18, 2008, Iserved the annexed Letter Briefupon all defendants of record via CM/ECF and upon the

following individuals by depositing true copies thereof, properly enclosed in sealed, postpaid

wrappers, in a post office box in the City of Albany, a depository under the exclusive care and

custody of the United States Post Office Department, directed to the individuals at the addresses

designated for that purpose, as follows:

Dated: August 18, 2008Albany, New York

/s/ AARON M. BALDWINAARON M. BALDWIN

Christopher Strunk

593 Vanderbilt Avenue

Apt # 281

Brooklyn, NY 11238

Ronald G. Loeber

2130 Berne Altamont Road

Altamont, NY 12009

William E. Bombard

P.O. Box 882Glens Falls, NY 12801

William A. Gage

Ronald E. Sacoff

84 Boylan Street

Staten Island, NY 10312

Gabriel Rassano

135 Gordon Place

Freeport, NY 11520

Edward M. Person, Jr.

392 Saldane Avenue

North Babylon, NY 11703

The Ad Hoc NYS Citizens for Constitutional

Legislative Redistricting


17/47


18/47


19/47



ELECTRONIC NOTICE OF APPEAL

Dear Sir or Madam,

Please take notice that on September 2, 2008 the court received a notice of appealin the action set forth below. This notice serves to inform the Second Circuit of the pendingappeal and provide them with the basic information they need to begin processing theappeal. After receipt of this notice, the Second Circuit will prepare and issue a scheduling

order which will outline the obligations and responsibilities of the parties with regard to thisappeal. Should you have any questions prior to the issuance of a scheduling order, pleasefeel free to contact the District Court Clerks Office.

Sincerely,

Lawrence K. BaermanU.S. District Court

s/

By: Britney NortonDeputy Clerk

For Court Use Only:

CASE TITLE: Ronald G. Loeber, et al. v. Thomas J. Spargo, et al.

CASE NUMBER: 1:04-cv-1193 LEK/RFT


20/47



RONALD G. LOEBER, et al.,

Plaintiffs,

-against- 1:04-CV-1193

(LEK/RFT)

THOMAS SPARGO, individually and as Justice of

the NYS Supreme Court, et al.,

Defendants.

ORDER

Presently before the Court is a Letter Motion filed by Plaintiff Christopher Earl Strunk

(Strunk) requesting reconsideration of this Courts Order, dated July 31, 2008, dismissing the

Amended Complaint and denying Plaintiffs request for a three-judge panel under 28 U.S.C.A.

2284(a). Letter Motion (Dkt. No. 115); July 31 Order (Dkt. No. 109). Defendants have filed a

response in opposition to Strunks Motion. Response (Dkt. No. 117).

A. Legal Standard


21/47

availability of evidence not previously available, or (3) the need to correct a clear error of law or

prevent manifest injustice. Shannon v. Verizon New York, Inc., 519 F.Supp.2d 304, 307 (N.D.N.Y.

2007) (citing Doe v. New York City Dept. of Social Servs., 709 F.2d 782, 789 (2d Cir. 1983). It

appears that Strunk is basing his motion for reconsideration on a need to correct an error of law or to

prevent manifest injustice.

B. Recusal

Initially, Strunks Letter Motion appears to also suggest that the Court should recuse itself

for disparaging Plaintiffs rights unless the Court is able to make a judgment free and clear of

other commitments. Letter Motion at 1 (Dkt. No. 115). However, Plaintiff has not actually1

moved for recusal, and certainly not in any format that complies with the statutory requirements.

Plaintiff has also not alleged any basis that would warrant recusal under either of the two statutes

that govern the recusal of federal judges--Sections 144 and 455 of the Judicial Code. 28 U.S.C.

144, 455.

So far as Section 144 is concerned, Plaintiff failed to file the requisite affidavit sufficiently

alleging that the judge before whom the matter is pending has a personal bias or prejudice either


22/47

Section 455(a), which requires that a judge recuse when an objective, disinterested observer fully

informed of the underlying facts [would] entertain significant doubt that justice would be done

absent recusal. See In re Aguinda, 241 F.3d 194, 201 (2d Cir.2001) (quoting United States v.

Lovaglia, 954 F.2d 811, 815 (2d Cir.1992)) (Where a case, by contrast, involves remote,

contingent, indirect or speculative interests, disqualification is not required.).

C. Discussion

Strunk then claims that by affecting Plaintiffs rights, the July 31 Order flies in the face of

the NYS Civil Rights Law Chapter 6 Article 2 that guarantees quote: S 2. Supreme sovereignty in

the people. No authority can, or any pretence whatsoever, be exercised over the citizens of this

state, but such as is or shall be derived from and granted by the people of this state. Letter Motion

at 1-2. To the extent that this argument appears to challenge the Courts personal jurisdiction over

Plaintiffs, this claim is waived since it cannot be brought after the Courts disposition of the case,

and since Plaintiffs already waived any challenge to the Courts personal jurisdiction over them by

filing this suit. Fed. R. Civ. P. 12(h); see, e.g., Andros Compania Maritima, S.A. v. Intertanker Ltd.,

718 F Supp 1215 1217 (S D N Y 1989) (appearing and seeking affirmative relief from the Court is


23/47

70 F.3d at 257. A motion for reconsideration is not to be used for relitigating old issues, presenting

the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at

the apple . Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (citations omitted).

Since 60(b) allows extraordinary judicial relief, it is invoked only upon a showing of

exceptional circumstances. Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). Final judgments

should not be lightly reopened. Id. Plaintiff has not alerted the Court to any overlooked

controlling decision, constitutional provision, or data which may be reasonably expected to alter the

Courts dismissal. Accordingly, Plaintiff has not established any exceptional circumstances under

which reconsideration is warranted.

D. Conclusion

Therefore, based on the foregoing, it is hereby

ORDERED, that the Plaintiffs Motion for reconsideration (Dkt. No. 115) is DENIED; and

it is further

ORDERED, that the Courts July 31, 2008 Order, dismissing the Amended Complaint and

d i Pl i tiff t f th j d l (Dkt N 109) i AFFIRMED d it i f th



24/47



AMENDED

Ronald G. Loeber, et al. CLERKS CERTIFICATION

vs. Civil/Criminal No: 1:04-cv-1193CCA No:

Thomas J. Spargo, et al.

I, LAWRENCE K BAERMAN, CLERK of the District Court of the UNITED STATES for theNorthern District of New York, DO, HEREBY CERTIFY that the foregoing docket entries, with theexception of the documents listed below are maintained electronically on the courts CM/ECFsystem and constitute the Record on Appeal in the above-entitled action.

The following documents are not available electronically and are currently maintainedin traditional fashion in the city of Albany Clerks Office.

This case is 100% Electronic. FILING FEE PAID 9/8/08.

Any additional records which are not currently available electronically, please feel free tocontact us and we will arrange for the document(s) to be made available to you.

IN TESTIMONY WHEREOF, I have hereunto set my hand andcaused the Seal of said Court to be hereto affixed at the City of

Albany, New York, this 11 day of September, 2008.th

Lawrence K. Baerman, Clerk

g



25/47



26/47



27/47



28/47


29/47


30/47

WS92283 28 3,2284Note 493

Act (ECOA) and implementing regula- I ,tions by requiringher to guaranty loan o H ~ ~ T O R I C A LND STATUTORY NOTES' .*3 2284;' -judge court; when r e q u i ~ omposition; p ms nly the composi-cedure of the.judge district\

(a) A.district court of three judges shall be convened when ot heard and deter-required by Act of Congress, or when an action is filedchallirig the constitutionality of the apportionment of congressionaltricts or, he apportionment of any statewide .egislative body. ,

(b) In any action required to be heard and determined by a dlcourt of three judges under subsection (a) of this section, the cosition and procedure of the court shall be as follows:(1) Upon the filingwhom the reqoest isthree judges are not

of the circuit, who s, ' of whom shall be a

' so-called three-judge cases., proceeding.

(2) If the action is against a State, or officer or agency' at least five days' notice of hearing of the action shall be

registered or certified mail to the Governor and attornoy $@'of the State. see 1960 U.S.Code Cong. and Adm.

References inText

, I ** ? r , b ~ ..L,~U~.~+L~,LI~LI~~BU~;&~~~.\~ALY~CWH>


31/47

28-,


32/47

28&2284 is5 ZN~UNCT I ~ S L 2284peolmryudgmea&,

ble, appellate review 223h n i d of request for gle-judge court 132dkmissal of action,nations of single-judge court 126 ~njunctions, urisdiction of t h r e ~ - j ~ dhscretion of court 9 court, duties and determinationrDirmLssal of action, duties and deteimi- 2 -fudge court 179nations of single-judge court 124133 Insubstaatial 'Iaim, dismissal 'duties and determinations of 8rr Generally 124Denial of request for b f u d p Interlocutoryudgecourt orders,29 appellate mVcourt 126Hearing 127 - 'Insubstantialdim i29Jurisdiction lacking ' 130Miscellaneous actions132133Moot questions 128 ureof court 7Partdolnder 131Time of determinationb' 1.25 +Dbmissal of action, duties and determi-nations of three-judge court 182 Refusal to convene three-judpDismissal of qction, issues reviewable, 22

appellate review 219Dismissal of appeal, a w a t e review-1.229Dlsqualificatlon of judges 19Dissolution of three-judgeand determinations of h j u d g e 58.I ourt 186 Jurisdiction, duties and detennlDissolution of h f u d g e courtp issues of singlejudgea m 130, 140. Temporary restrainingorders, duties and, revfewable, appellate review 220 Generally 140 dges sight! order or de- determinations of single-judge courtDuties and determinations of single- Dismissal of action 130 135, judge court 121-170Duties and determinations of s w l e

Thnecourtconvenes 14Contempt prooeedlng 171Inappropriately canvend .Independent determinatton I 7Injunctions 1 179

three-fudgecourt 183Validity of proceedings by improadentlyis- convened court, duties and determina-21 tions of three-fudge court 187Voting Rights Act, actions requiring

datarmlnatlonr sf . deter- &judge court 952rl'lB ' i ,

143 Waiver 23~ndrpenclentdetermination, jurirdictlon I I Z ,t iaranddatar M , , , - I,

I,,4 2284 PARTICULAR .PROCEEDINGS part I 28 :42284


33/47

'Note 9r,, , ,%> , - I . # GENEMY

Subdivision Index ,

hl~fircuitfudge 11

Civil Procedure

conerally 6 -1 Wtutory nantk ofcourt- 7

I, r ' t -ctional nature of d o n ' .

28 :9 2284 PARTICULAR .PROCEEDINGS Part1 *:42284


34/47

Note I9, .,,., , . , li,QENERAi-Ly See, ,@, Ritts v. Knowles, D.C.Wtn,10 6. N a W o f m a d l y

I 339 F.SUPP. 1183, affumed 478 r A threk-judge c h f i is L ~ M 'I , Subdivision I d c ~ 1405; Pervis V. LaMarque Independ diffdient ourt from h e district'&, butAdthorlty6tchlef j u d b 10 School Dist., D.C.Tex.1971, 328 t.',YU638, reversed on other grounds 466 1Burden of proof 17Cowlusiveness of determlnn'clorl on other '4 Rakes "' D'C'Va'lY3 18 F.Supp. 181. Federal CourtsCjudgea ISConcurrent of didtrict judge U&chief ctrcuit udge 11 . I T . , , " 1

7, -astaMwyna-,&- .Three-judge district' c a m is stahtc)ry

' P d u r e 2 with limited $phere.bfoperation,,Jeh6vah's Witnesses ib Stkte of 'wash. v.Construction w ~t h & uler 3 991 King Hospi%l un it No. 1Dlrcretlon of court 9Dlqualiflcatlon of j u d w 19 2. Co-don with' Federal RU~U b~rv ikt~] ,W.D.Wash.1967, 278 F.Supp.Civfl ProcedrtiP 488, affirmed 88 Sect . 1260, 390 U.S,Judicialnature of dete-tion' 8 598, 20 b ~ d , z d 58, rehearing denied 88Jurlsdlctlonal nature of section 5Law of case 21 F'Supp. 382' Courts S.Ct.,l$k, 391 U.S. 961.20 L.$d.Zd 874.Natureof court 6. 7 Federal Courts C- 991 .Generally 6 8. , Judgdal naturr d&,+itlsuon$ t Statutory-tun ofUXUL 7 In determining whether a complainta]-Notlceof hearingof action 16 legega case appropriate for,adistrict court he district judge performsa judicid, as distinguished from a minis-

P u v 4for &~+~dge court 12 ' "Stare decists 22$ t r t u t o ~ n a ~ e o f c o u r t 'T h e courtconvenes 14t ime for determinaa n 13Walwr 23(. / . I

ent of this sec tion is jurisdic- versity of S.C., D.C.S.C.1970, 319cannot be waived. Noe v. F,Supp. 193. Federal Courts e 011

\ , J > t 1 . t , I , . , , I,, , , , d t, i!/t,:/ii[;;-&,hh*hwk-A&i&,d!;, (


35/47

4 , ,T'fl'l'..

s$r8284 PARTICULAR PROCEEDINGS Part 6 28: s2284


36/47

Note 20 Note 66by nBn don aployees of rail+ enee d Branches -r-WJlace* M.D.Ala', w.y,compafiy seebag underlstat e law t~ 1967.269 F~SUPP.M6- Courts 96(1)wain enforcement of union-shop con-tract, where on removal to federal court,,case ;was heard by three-judge districtcouh on :hotion to rkmand as well asqpbrl, niodon to dismiss, order remanding'case would be no less efficsi@ed by three judges, than ifdibuict judge alone. Alle* Y.Ry,',Co., W.D.N.C.1953,,1 4 F.Scourts- 101 , 3 g > . , 4 < . ! , . ,13 , , * Z i a ; R d f ~*judge diswicf coii tt4 judgmentt Utah Legislaturewas constitutionally$,apportioned was final 'j~ldgmen t ndwah law of the case In prokeeding bnby legislator to intervene in theCaSe, Petuskey v. Rahpton, D . C . U ~1969,307 ~ , ~ u p p .35, reversed on other'igrounds 43 1 F.2d, 378, certiorari denied91 s.c~ . 882, 401 b.$.913, 27 t .Ed .2d , -

, 819. a c ~ ~ r t s9(6) , I I ,. ;I. ' m ~ s ~ ~ k R ~ n o h i sO V E ~ ~ N I ~, ere the, United h fu . S U P ~ C ~Subdivision Indexcourt, acated judgment ,o f, hreep~udgecourt and remanded that cause tthe district court for further proceedings+,where the Supreme Court expressly stat-ed in its opinion that it indicated no sought 5sviews on the merits and where neither jdsdlction 58

thk mandate nor opinion directed entry of ~~~m~ 53a decree, the law,oE he case doctrine had ~,,&jes or r e k f sought 54,SS ,no applicat~onand case was treated. on Generally 54remand, as upon original submission. ~e cl ar at or yudgment 55 ,Moody v, Gallion, M.D.Ala.1968, 286 Standing 56~.Supp.53. Federal Courts* 80, substantial clalms, 5722. Stdre dedsis . ,hree-judge districtdecisions of the courtcircuit,, Wilczynski v.1971, 323 F.Supp. 509. S,son, v. Schilling, D.C.Ind.F.$upp!:1223. C o r n @= 96(4)

Threhjudge district court was1 bound by any, udicial decisions other 'than those of the Unit& States SupremeJehovah's Wimesses in ,State of' Wash,v, King Counry Hospital Unit NO. 1(Harborview), W.D.Wash.1967, 278F,Supp,' 88, &-d 88 S.Q. 1260, 390U,S,598, 20, L.Ed.2d 158, rehearing de-h\ed 88 8.Ci.' 844, 391 U.S. 961,,,?0L,Ed.Zd 874. Courts @= ,960); FederalCo~r t s*371* , , , ,+ ,

It Is clear duty ofw - jcourt P follow dscision o f , tsr p p g l , Nab-, NAACP Sts. I 1 , , 4 , , , ' - , , h3 , 1 A *

2 8 ~ 9284 PARTICULAR PROCEEDINGS Part 6Nets 56 28::Note2843


37/47

der dismissal of the complaint. PuertoRice, Intern. Airlines, Inc. v. Colon,D.C.Puerto Rico 1975, 409 F.Supp. 960.Federal Courts 1012ST., !substantial claims, considerations,; governing

can be based on absence of federal juris- ral Courts* 91

83. - onstitutional &ms, eppor- .tionment. actions requlrtng three-Jude comiQuestion of congressional redistrictingarose under the Constitution of the Unit-ed States and was an issue of federalF,Supp.Zd $43, affirmed 332 F.3d 769.Federal Courts 998

~ld ims f plaintiff seeking to enjoin

.28""S2284Noh.a3

Z%(t 284Noto 80


38/47

msntarives to be apportioned among sev-eral. tates according to their respective ck,F.D.Pa.1980,503 F.Supp. 657. Anderson, D.C.Kan.1964, 229 F.Supp.nwbers, failure to do so could result in Courts 991 271. United States CZJ10deprivation of right to select representa- A three-judge district court had juris-Hves in violation of U.S.C.A. Const. Art. 1 diction of subject matter of an actionseeking congressional redistricting. Ma-ment, actions requlrlng t ryland Citizens Committee for Fair Con-gressional Redistricting, Inc. v. Tawes,D.C.Md.1964, 226 F.Supp. 80. FederalCourtse= 26

n challenging constitutionality of

28% 2284 PARTICULAR PROCEEDIUGS Part 6 h 155 INJUNCTIONS * . ' Ls 2819 2284NOt.I8@ Note.95


39/47

18&.Edr2dM3,on remand 271 FSupp. Where the North Dakota egisl la tub,497, . Federal Courts 477; Federal had failed to reapportion itself, in orderCount4 e 9 9 7 to correct inequality of representation,., of h-juds three-judge district court was required Innot necessary where one of appor- fashion legislative apportionment p1.wtfbnmentstahltes under attack was local which would tend to equalize populationhw and not one statewide application in each of the legislative districts in ordurthe' other -. gene& M of 1 4 cornpb with the 'lone One vat'",p pl lc m since i twas in hnapplicable concept. v' Meier* D'C'NoP

to only one city. Yelverton v. Driggers, 1972, 372 F.Supp. 363. States 6= 27(10)M.D.Ala.1974, 370 F.Supp. 612. Federal 91. - iscellaneous c a m not *C6utsm 997 qriirlng three-judge court, appbwCase involving alleged hC-atory tlonment, actions requjrfng t h d,+.Glass ction by county residents to havefederal district court declare that ap ~ o r -tfonment of Council denied them equalprotection was not one apt for adjudica-tion by three-judge district court eventhough constitutionality of 9 De1.C.9, b165 establishing boundaries of coun-cilpanic .districts was involved. Keil V.S&orr,.D.C.Del.l968, 282 F.Supp. 608.Federal Courts 1000'~Actio lI or c d ~ t i o nf malapportion-of County Supervisors' districts wasnot one,directed against state statute, SOas to invoke jurisdiction of three-judgedistrict court, where statute involved did 1979, 601 F.2d 859. Federal Courtsw t delineate district boundaries andplaintiffs did not seek injunction againstoperation of statute but sought interfer-ence with local legislation. Dyer v. Rich,N.D.Miss.1966, 259 F.Supp. 736. Feder-

al Courts@ 99790. - iseeUme~us requiring- *judge court, apportionment,actlons reqdring three-judge court

'. .lAsll . ) Y'T_

- 7-7

28.32284Note 123


40/47

~ ~ f ~ ~ b b 'i&.&&t~ p&ll@ to' 132p o r t i o m t of parish schoo1,board tions of single-judgecoutt&$ :mnacl were insubskintialp For purpose of determiningrince no adequate sdbmission had been three-judge district court, allegations'ofcomplaint must be deemed to be true.tb Attorney -General of any of .

dhanges made and Attohey General re-to defendants' purported submi*S~QWwithin 60-day reply period, andthugla &=-judge court wasnot requiredbe convened under Voting Rights Act m, d i ~ m i d dld ~ 9 6 5 . Broussard v. Perez, E.D.La.ip?6,416 ~.Supp.84, affirmed572 F.2dl # l ~ ,ertiorari denied 99 S.Ct. 610, 439 J~ ; s ,002, 58 L.Ed.2d 677. Federal'Corn C=D 998,,Whetherpractice9 had evolved No-vember 15 1968 for ,appointment of a -Spsofornof&ction snd of not reqnesting *rOmovalof appointee under state electionbw without consent of assembly &strictbpder was question to be heard and de-wmfned by court of.threejudges. Beat-

Q,V. Esposito,E.D.N.Y.1976,11 F . S ~ P P ~107, supplemented 439 F.Supp. 830.FederalGourts 995 ~eoessity f -jud& cmvl '131, lh b96. Fcdcr$l defenses, actlo- Isqul'rhng ~enerally 137three-jdgecourtA-tke-judgecourt is mandated whenhction challenges the appo'the state legislative body onfederalconstitutional groundspldntiffs raise only a state coshdlenge, it is not clear th,f 6 federal defense mpli

I I# \ I % - I C I,#, ~ m e sND' ~ ~ E ~ I N A ~ ON S

11 OP~SINOLEJUDQE OURT '

\ttg,nr3yW9144 I ! . ' , . ' ' . ':ompl~lnt 113

h. 155 -INJUNCTIONS . ,mf23

28.., 2284W e 130

129. - bstantld&&,?dlsW


41/47

a(tntrto consider VotingRighb Act chal-ln& to districting plan; in determininghether .to convene threejudge court,nele judge .has authority to decidel h e h the complaint states a substamJ laim.- Gonzalez v. Monterey County,da N2D.Ca1.1992, 808 F.Supp. 127.District court must take allegations, it1amplaint a s true for purposes;-of deter-ilning whether to convene a three-judge6uurt; single judge can neither evaluaterrrits of claim, nor extend its inquiry

motion for convening$ct court on groundswere insubstantial hadmotion to dismiss as toe only by a three-judge

* 011

Moot questions, dismissal of

t court would be dis-Avlnr v. Mangum,F,Supp. 754. FederalI " , 1

of d o n , duties end de-na-tiom of single-judgecourtDistrict judge to whom application forthree-judk district court is addressedmay dismiss complaint which fails toraise substantial federal question. Lin-daue r v. Oklahoma City Urban RenewdAuthority, C.A.10 (Okla.) 1971, 452 F.2d117. certiorari denied 92 S-Ct. 1293, 405U.S. 1017, 31 L.Ed.2d 479, rehearing de.died 92 S.Ct 1607, 406 U.S. 911, 31L.Ed.2d 823. Federal Courts b 012Single judge may dismiss action alleg-ing violat ion of preclearance provisions

cd section 1973c of Title 42.wher-e claimsare wholly insubstantial and completelywithout merit . Miller v. Daniels;S.D.N.Y.981, 509 F.Supp. 400. Federalcourts- 012

The duty of &single judge to whdh arequest for a three-judge court is made isf h t to determine whether a Sdbstaritidclaim for relief is raised by the suit;


42/47

cluk. D.-J~D;c;~~@,285 ~.Supp.629. S.et\~lt58.*319J-S:75oP 87 L.Ed. 17041, ede~d at& 1012 .' .' courts- 101 2 'G '. J,,dA doii, ked three- 132. -~18cellanemm dl*fidiiti .district kourt determinewheth& ' urisdiqtion, &xists in districtbod, ' arid if lie properly cotrcludes thattheye isLo jurisdicti&, ~s power to dis-bso&ppBint,as as to deny motionto convene three-judge tribunal, is not . * T e m m m ~mMnlng +, N.D.Mhs.1991, 776 F.Supp. 1142. Fed-ci+..umscriwy this =tion. Lion Mfg. duties and de t enn ina~~hf in. ad Courts* 011'carp, , Kennedy, C.AD.C.1964, 330 I . gle-judgea ~ ~ r t~ , 2 d33, 117u . s . A ~ ~ . D . c .67. ~ederalCbutts 10120 . . I J , .- - , I ,. %~n suit ,* b ~ + r e q d g An-vetping .of three-judge, district court toco~~tifutioualuestion, single dis-#~f.,j;rdge, n d i n g on motion to dis-*a, .rnayvtin first instance determinewhether court has jurisdiction even to act to adopt a constitu~ o @ d e rapplicability of hee-judge pan- podo-ent. Mary1gl or *ether ,action is precluded for~ q c ~ , b j e c t f p a ~urisdiction. Safe- f ~ ~ ~ ~ ~ C - ~N& Zutuual ins. Co. r. Corn. of Pa.,2'$&&974, 312 FSupp. 9 3 9 . .Feded 606' @ loo'q i 1012 , , , 0' I,,Pir*. daty .of mle .federal district courtjudge Y to pa s on sid6cieirq of a m -plaintc:~pe&caIly as to whether WJusticiablecon-w is presenwd ,which he powers, and if tohe ,+? nnines hathe lac@ j--diction, he,must.dismiss suit. .O'Hairy, ",S,, D,C.D.C.,1968, 281 F.Supp. 815.Fpderd>CivilPrdcedure 1742(1)-'I" ,\I'w d-dutiesand d e t e d n a t b m of" bl""'d*gl+judge court!if;,ingle judge,Dgndkning a t h e j u d g ea motionallure ,to join necessary parties.can 'CivilLibertiesUnion of Md. v.df Public-WorksofState of Md., D.1972, 357 F.Supp. 877. ,Federal Cc 012 ., ,Pow* of tin*Ie,&'ejdge towssIdunction dt n of absence of*ndllpensable party is not n d Y , i n -cbna,stsnt sirnil&. pawer in three-luyi9t&t& r it hmur unneccsaary particjpatjon ' two *d-ditional judges ckould not indidat e thecourt'r action ih any event, or cut off anyrlpht or privilegeof OsageTribd

bdlanl v, I, D,C.DC.1942, 45~ , s ~ p p ,79, aff[rmed 133 F,2d 47$ 77ua , . 114, cartlo& 63

j . I 492..Y*YL,iiiB

rszg 2289 ~ART~CULARRWEEDINGS Part 6 28'. 2284Note 145


43/47

be heard $re- of New York Hn t m . Q.D.N.Y.1953, 116F.Supp. 401. C o w ,101

is 144- Attorney fees, d ~ t i a d & t h -nations of alngle-judge CO&, .In passlhg upon a request for a three-Judge district- court, SiWle district courtludge must not make a decision even asdequacy of claim for equitable relief ifq~eqtions arguable. Brennan v. Green-beum, (E.D.Pa.1974, 377 F -S ~P P. S9. .Fedel$ Courts 1011A dngle federal district judge has noJuqsdiction to proceed to, merits of a&iim ~ f ormation of a three-judge di.5- Although action was tried before three-t ~ i c t b m is required. Police officer^' Judge court, issue of attorney fees could~ ~ i l d , ,at.'bnion of Police Officers. AFL- be pr op dy determined by a single judge.C I ~. Washington, D.C.D.C.1973, 369 Mader v. Crowell, M.D.Tem.1981, 506~+~$~:S '43 .ederal Courts 991 F.Supp. 484. Federal Courts e 011

r45. Qtanding, duties d,district judge to whom petition for em-*rneling of three-judge district court is tionsof singlejudgepresented has severely limited jurisdic- v. A single judge can consider an issue oftlon to cofihider merit of factual allega- F. standing convening a three-judgetione. ' Bistrick v. University of S.C., D. district court when there has been a re-D,C,S,C.1970, 319 F.Supp. 193- Federal ton v. quest for such a court. American CivilCourt8* 011 . Libe*es Union of Md. v. Board of public~t a nbt ordinarily fLncti Works of State of Md., D.C.Md.1972,357F.Supp. 877. Federal Courts 1011

v. DUTIESAND DETERMINATIONS;OF THREEJUDGE COURT

Subdivision I&,,,&&criO1l of -Judge

c court 174Ad*optnians lB l , ..r 11,ally Claw actton stat- 184 ,, m k on- hae dew ing t three.jud8e ~ ~ S M C Court ex- Contempt p-mg, j u ~ i a o nfm w n C ~ U M ~of c ' Linehan vl Wrttorhnt Cammi~cioa th-judp court 178


44/47

SUBSTANTIAL CHANGE OFWis.App. 1992. The term "substantial change ofcircumstances," for purposes of modification of cus-tody order afte3 two years has passed since initialorder, requires tEat facts on which prior order wasbased differ from present facts, and that the differ-ence is enough to justify court's considering wheth-er to modify the order.-Licary v. Licary, 484N.W.2d 371, 168 Wis.2d 686, review denied 490N.W.2d 21.--Child C 555.

SUBSTANTIAL CHANGE OF CONDITIONSWashApp. Div. 1 1984. Where at time of origi-nal separation and first modification of agreementit appeared that one child would not become quali-fied for college education and other child was 11years of age but subsequently each had excelledacademically and were candidates for post highschool education and where both parents were col-lege educated, there were "compelling circum-stances arising before emancipation" and a showingof "substantial change of conditions" warrantingmodification of marital dissolution decree. West'sRCWA 26.09.010 et seq., 26.09.170.-Matter ofMamage of Studebaker, 677 P.2d 789, 36 Wash.App. 815.--Child S 240, 304.

SUBSTANTIAL CHANGE OR ALTERATIONC.A.7 (Ind.) 1995. "Substantial change or alter-ation," which will preclude manufacturer's strictliability under Indiana law, is any change that in-creases likelihood of malfunction, which is proxi-mate cause of harm complained of, and which is

independent of expected and intended(use to whichproduct is put. IC 33-1-1.5-3 (1993 Ed.)--Leon v.Caterpillar Indus., Inc., 69 F.3d 1326, amended, andamended.-Prod Liab 15,16.

40A W&?- Q A W&P- 531

tial change of position is sufficient to createperson seeking permit.-People ex rel. S k ECo.v. Town of Cicero, 298 N.E.2d 9, 11900.-Zoning 376.

3#).-Pub Ut 194.:1Kan. 1974. "Sdd e n c e which p

ad elevant c o d

SUBSTANTIAL CLAIM

ably resolved.-9% P.2d 369, 26BWork Comp 1939.4

815, affirmed 317 F.2d 679.-Fed Cts18

I W-qpmF" . ! ; , ' ,;I 'hnr v. ~ , , N . w B181j.h yd*. . ~ v t r h ~ ~ : ~ ~ u ~ a ~ ~ r ~ w w ~ ~ dU2.-4ubrog 1, 33(2)1 i . . $ 5 iiable parqr who has k e n compelled to pay d&HI '!i 5. . ~ts,.bemade whole by . ~ o M i n g ,hat debt a mN ~ Y . A , D . , ~L ~ ~ .h~~~~~ u b r b o g e i ' t s ~ marwiable amo,, gmd maow,


45/47

iq!;luitable doctrine whichrxdlallows j d e r $ t o should be required to pay.-Union Mut. Fire Ins.stand 10 he shoes vf & nswed Co'seek iqddmo$ a.. Joerg , 82~ .~2d586 , ,2003T 2 7 ,S u b r o gcation from third patties ,Whose wrongdoing as 2, - , .. rcaused a loss for which he insurer isbound to , . , i - ,w ~ t , ~ r s e . + , , , ~ef -mel a.or Hemp VG 2&f f,+6Suhogations': s, h &. i~ '~plntstead v. Resour& ! R&@n$, Inc., '763 W.Y.S.a b e d % mt i tu t io n o f OnePam in .th*~laceof657, 0i AD.^ 939.11nau& $513@). ,, . " ~ o f i e r i th r ef e re n sc m a l a m l a h d c m n 4I ) y , , 5 9 ,- , or , right. so,,@at ,thecpprty that 4s .substituted

4 .JN.C.App;2004. The tem~r''&bK4@0d,': in succeeds to the7;rigbts. of the ~r the p-Y ello wthe Insuraae GuaranilyAssociayfon (IGA) statute ' Freight Systems, Tnc. v. Courtadds PM~rplanceddrfing 'fcovered c+m" to ~ d u d e ( q b r o g a t i o 'Films, Inc., 580 S.E.2d 812, 266Vd. g?.4ubrogi .,lai$ls #& hot en co mp q equitablg~ubrogat ion. -1.' - ' A -1 ' 3 ".w&*'Nc,G,~AP.s+r2p'r2p'~7;;JO~)dennL& * ( ; ,Gle,.!'.k.' ' i i ?- , ' - *& t.~~aafow G ~ ~ ~ .~ ~ g ~89. s ~ B R ~ ~ @ ~ ' ~ ~y.'!::?J$.k-Y :A I.!< , .

S&Zd:9084 review denied a595 S.E.24 151,'358 #> ,. ~ N . Y , , &Irh8tilpur-' - [email protected]~nsn~anat: 497., ,I - ,,I, '' .mt to~its;&&neat, Mth ctuise %ip:oper.at&r,. *., L ,, , , ,.>$ > .. qz,, :.I\ .. ! I ~ , I " ~ , 2.N.b.m3.4~~ubtOgat;on . g ~ ged had a$s me i i .u l t~a te spon61'b il it yonlay reim-ody anilablc,m se the u l t i m ~ish- ot ',h-m@ ,tw I I S ~ ~ ~ ,ho did,&it.le or

sltn ~ ~ ~ ~ h ;n ~ ~ ~ ~ . ~ . d ~i e ~ ~ i v es a s for which. they bad pepaid, andl ha t was legallp obligated to honor %haagebricks. &rice, &@t4tci,f3ay thatdebt.-en Mu6 from di d not: Reinsurahce Co.\.v. Centet ' Mu~J~u~.'a:,'58 angy positio, of ,,ksjnre',t'jhfOmedN.W.2d 3 6 9 ; i Z M ) # W 5 0 .4 t i i ~ g ' 1 . , ' " ' r ' '4 ~ % ?I'-,!,J- .- . , . 7::rk'$l - i.: , claims, 'but W{S ,me&?;dubfog@: :WtI1'vhile.'- ~ , ~ ~ . a . t ,f S u b ~ ~ v , i sn,*l&m~ subtogated t 6 ~ m e r s 'ights a&&ti%dse ship'* &h{ masa.or a .a@m*,;&ms. operator; w odt submgated to thiir 'barb-level.partiesh pwe- he ultimate dischargic..of a d g b t ' dori9 PP+OP b cruise ship ;,W@@r's ad -by th e pewn+do, in equity arid g d w e n c e , Nptcy , , , ~ e . lBankr.C%dq,* 11, U,S.C.A.7 bughY~twpay or ittiAmericanNat,~pjre&ts.,@. 5 507(a)@),. (&.+h.re,fiem i ?& cra tion~ ,294v. Hugh& 6%N.Vf.U 330,20@3% 4 3 . e b r 3 B-R.w.?& 28% ?% ;&- , , - ( . I. , ; . .:-- , t . < . . , d ? . I\.,'1 a hhssho.Ct. UW)3.' 4"sthbrbgatiani' %? &6@ii

t ,.. ' . T< J < .. ~ e ~ . ~ ~ v( i ~ ~ ~ g ~ ~ , i ng+ rae kap )u i i , . j h'dr an$thdr p~~ in the place 'of pf.tedlto$ sothat &.&ion' in wkose favor it ~s.ex&rnsed,succe&i b he rights of the creditor h elation to . , 9 : . , I . t:'.

" &e dcbt;+-Nmters W&. . F edera l. CodtpfesS :!-,I l r 3 , t . ,#,I,:,. . , r trt , l ,~. ' . , I . ~ , S. !, .,>*>,. *. + r q4,,< k *-~,&,< ::,..

* " $ ' e d ~ t ~ p p . ,m.,~ u b q a t i o n t ~ ~finedba;sjhe subq titu h,a f apother,,petsoa iqthe p b' ,&a creditqr*'so hk $he person jn,weavor ifis,dercised succee+ t~ th e ,rights of the credit01in rela tion to the debt.-Ba nkers 'Qkt,:Co., V.ChUins, 12p S.W.3d 576, a m a l denied, a nd r ejw&ng & d e a l of appead 13enitd.--Su@$ k'32.

8 .,;! , f r ,,'i.~ ' r e ~ , ~ ~ s t o r r [ l002,,, "s-tion" &,.the a c f ,one whQ. h&~paidv$n,+.obli- SJE.2dx, 39 Mass. 1+08.,?;;subrog 4'32. ?5;.


46/47

*Ma.@. WD . 2003. Biidbnca 8ujipon&gjin P L 855) 1736;1311.1~.&if131l.?3l$&fdin& a'!ageny decisioti!is"mbstantid" if it supports the, penalty fot having in passession the w* JOran$,matter at issue-Win$ Point Partners,WC . v. substantial part.or parts d ame animefs m~m-1'Boone Countv ex rel. Bocme CounN Com'n, 10a-I tioned therein, is so vague as to.be unconsti@''


47/47

. S .W M 821, khearin&-'traasferdehied (60669);l tional in that it fa i ls to &@re @a word^"^^^^ 'ahd t r ads fe r .dtnie d . - ! !Law 791,. . 7 td". esueciaklv so where the rdcord fa& to $ h ~,

Documents

Doc 109 NDNY 04-Cv-1193 Order to Dismiss in Re 3 Judge Court With Reconsideration 091008 With Research