COVER NL 09_06.qxd - Nassau County Bar Association

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12 n July/August 2012 n Nassau Lawyer Mat Law Applauds Exceptional Pro Bono Service Dozens of Attorneys Respond to Abuse Victims’ Legal Needs By Gail Broder Katz When the chips are down, it’s great to know that you can call on the attorneys at the Nassau County Bar Association to step up. Which is what more than 5 dozen did when funding cuts to the Nassau County Coalition Against Domestic Abuse drastically reduced legal services to this underserved community. In the past year, 77 NCBA volunteer attorneys have provided pro bono representation to over 80 Coalition clients. They have lent their expertise in a variety of areas: matrimonial, Orders of Protection, child custody, child support, immigration, landlord/tenant and consumer issues, to name to just a few. Without their help the victims would not have had any legal representation. Instead, thanks to our volunteers, these individuals and families were represented by some of the top attorneys in their field. When these talented attorneys learned of our plight, they responded to our call with donations, volunteering to become mentors, and of course, volunteering to represent our clients. The clients are extremely grateful for the fine representation they have received. Many were forced to stay in unbearable situations simply because they could not afford a lawyer. Thanks to our volunteer attorneys these clients have had their legal issues resolved; their needs LAW OFFICES OF HOWARD R. BRILL, P.C. COUNSEL TO THE PROFESSION • IMMIGRATION LAW • • DEPORTATION • EXCLUSION • REMOVAL • APPEALS • EMPLOYER SANCTIONS �� addressed in an appropriate manner, and can now go on to lead productive lives. But most importantly they and their children are now SAFE. As a judge sitting in the Matri monial Part of the Nassau County Supreme Court, the Honorable Stacy D. Bennett recognizes just how valuable these volunteer attorneys are to Coalition clients, and to the system as a whole. So at her suggestion, the NCBA Matrimonial Law Committee formally recognized their outstanding service to the Nassau County Coalition Against Domestic Violence clients and the legal community at their June meeting. The volunteer attorneys have gained valuable skills, free CLE credits and a true sense of accomplishment by helping people who are often at their lowest point. It reminds all of us just why we became attorneys in the first place – to help others. The Pro Bono Project volunteer attorneys are truly deserving of the honor bestowed upon them by the Matrimonial Committee of the Nassau County Bar Association. It is but a small token of appreciation for all they have done and will continue to do. The Pro Bono Project is a win-win for all involved. So, if you or any attorneys you know would like to get involved and lend a helping hand, please have them contact Gail Broder Katz at 516-465- 4700 x4028. • POLITICAL ASYLUM • WORK PERMITS • VISAS • “GREEN CARDS” • CITIZENSHIP 250 Fulton Avenue, Suite 200 • Hempstead • NY 11550 (516) 489-8786 • FAX (516) 486-4933 �� Spanish Spoken �� Member: �� American �� Immigration Lawyers Association Lecturer �� & Panelist: Nassau �� County Bar Association, Suffolk County Bar Association Matrimonial Law Chair Lee Rosenberg (left) and Family Court Judge Stacey Bennett (right) present a plaque to Lois Schwaeber, Nassau County Coalition Against Domestic Violence, at the June meeting in recognition of committee members who provided outstanding pro bono service to the Coalition in its time of need. NCBA Attorneys Recognized for Pro Bono Service Mary Ann Aiello Janet Alpert Sol Barrocas Jonathan Bartov Illene Behar Meredith Bettenhauser Allan Botter Karen Brand Jose Canosa Anthony Capetola Deborah Chadow Neil Cohen Alexandra Cohen Terri Cohen-Lieberman Jay Davis Councilwoman Dina De Giorgio Deirdre Delay Joseph Demarco Matthew Didora John DiMascio, Jr. John DiMascio, Sr. Hon. Anthony Falanga Marcia Field Laurice Firenze Christina L. Fittner Ward Fitzpatrick Patricia Galteri C. William Gaylor III Steven Goldman Mark Goldstein Joseph Harbeson Jacqueline Harounian Cheryl Helfer Kristina Heuser Amy Hsu James Joseph Harris Kantor Elena Karabatos Margaret Leszkiewicz Victor Levin Nancy Lieberman Steven Maffei Kimberly McCreight Charles McEvily Hon. Leo McGinity Timothy McGrath Maureen McLoughlin David Mejias Randi Milgrim Siobhan Moran Steven Moser Patricia Pastor Brian Picarello Jon Probstein Jody Pugach Genevieve Purcell Hillary Reinharz Kieth Rieger Joseph Rocco Frances Rosato Jennifer Rosenkranz Douglas Rothkopf Debra Rubin Gail Saul Lawrence Schaffer Ross Schiller Stephen Schlissel Lisa Schoenfeld Charles Sherman Kimberly Snow Sandra Stines David Teeter David Vallone Wendi Waldman Edward Waldman Rachel Weisman John Zenir
REVEL IN YOUR ACCOMPLISHMENTS SEPTEMBER 2010 I VOL. 60 I NO. 1 I W W W . N A S SS A U B A R .. OO RR G The authority of Magistrate Judges to impose Rule 11 Sanctions after Kiobel v. Royal Dutch Petroleum Co. 3 This decision is an impor- Factual & Procedural Background �� Being featured on the pages of Nassau Lawyer is an accomplishment. Reprints allow you to take your editorial coverage and optimize it for marketing purposes. Communicating with reprints adds credibility to your message and helps brand your accomplishments for effective promotions. Reprints help extend the life and value of your press and leverage it for extended and targeted use. For more information or to place an order contact: 4 Chief In our federal court system, magistrate judges play a critical role in the administration of justice. The Federal Magistrate Judge Act (“Act”), 28 U.S.C. § 636, authorizes magistrate judges to: [H]ear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. 1 On occasion, lapses during the pre-trial phase have led to the imposition of sanctions by magistrate judges under Federal Rule of Civil Procedure 11. 2 and development in Nigeria. Judge Kimba Wood referred plaintiffs’ Rule 23(c) motion for class certification to Magistrate Judge Henry B. Pitman for a report and recommendation. On March 31, 2004, Magistrate Judge Pitman recommended that the District Court deny plaintiffs’ motion. Recently, the United States Court of Appeals for the Second Circuit published a decision that addressed, among other things, whether magistrate judges have the authority to issue Rule 11 sanctions themselves, or, instead, are authorized only to make a recommendation to the District Court Judge for the imposition of Rule 11 sanctions. tant one for federal court practitioners, as it addresses an issue that divides both the federal courts within the Second Circuit as well as the Circuit Courts themselves. A putative class action was brought in the Southern District of New York pursuant to the Alien Tort Statute, 28 U.S.C. § 1350, arising out of defendants involvement in oil exploration 5 Plaintiffs objected to Magistrate Pitman’s Report and Recommendation, and defendants filed an Opposition to those objections. In the Opposition, defendants’ attorneys stated: (1) “Now we have learned that seven of [plaintiffs’] identified witnesses are being paid for their testimony;” (2) “[T]here can be no doubt that the witnesses are giving testimony that [plaintiffs’] counsel knows to be false;” and (3) “[W]e know that between February 29, 2004 and April 2, 2004, [plaintiffs’ counsel] wired $15,195 to the Benin Republic for the benefit of the witnesses.” basis of these statements, plaintiffs moved for an order imposing Rule 11 sanctions on the ground that these statements had no evidentiary support. Defendants’ attorneys opposed the motion, arguing that that the statements were supported by record evidence. 7 third statement because “[a]lthough defendants’ counsel overstated the amount of money sent to benefit the [w]itnesses, the amount of the overstatement was small…and did not materially change the nature of the statement.” did, however, award plaintiffs onethird of their attorneys’ fees arising from their partially successful Rule 11 motion. In an “Opinion and Order” dated September 29, 2006, Magistrate Judge Pitman denied plaintiffs’ motion with respect to the first statement, but granted the motion with respect to defendant’s second and third statements. statement, Magistrate Judge Pitman imposed a $5,000 sanction on each attorney who signed the filing. Magistrate Pitman declined to impose sanctions for making the 10 Defendants’ attorneys appealed Magistrate Judge Pitman’s “Opinion and Order” to the District Court. Applying a deferential “clearly erroneous or contrary to law” standard of review under 28 U.S.C. § 636(b)(1)(A), Chief Judge Wood affirmed Magistrate Judge Pitman’s Order. Defendants’ attorneys thereafter appealed Chief Judge Woods’ Order on two grounds: (1) Magistrate Judge Pitman was not authorized to issue a dispositive decision, such as an Order imposing Rule 11 sanctions, absent the consent of the parties; and (2) the imposition of Rule 11 sanctions on the basis of the statements identified by plaintiffs could not be sustained because of the record evidence supporting those statements. Second Circuit reversed Chief Judge Wood’s Order solely upon the second ground. The Panel, however, chose not to ignore the now-mooted first ground for appeal but instead published their conflicting views. The Second Circuit’s analysis of the mooted issue – whether magistrate judges, when acting pursuant to a district court’s reference, are authorized to issue orders, or only make recommendations to district judges on whether Rule 11 sanctions should be imposed – provides persuasive guidance for practitioners on each side of this issue until such time as Congress or the United States Supreme Court addresses the matter. Kathryn C. Cole 6 On the 8 For the second �� (631) 913-4223 jennifer.travis@libn.com Analysis 1. The Honorable Jose A. Cabranes In his Opinion, Judge Cabranes was persuaded by the decisions and reasoning of the Sixth and Seventh Circuits, which have held that decisions on Rule 11 motions are dispositive of a claim and are therefore not properly resolved by an order of a magistrate judge. 12 In reaching his conclusion, Judge Cabranes reasoned first that a Rule 11 motion for sanctions, which gives rise to proceedings separate and distinct from the underlying actions and involves parties distinct from those in the underlying action, is the functional equivalent of an independent claim. 13 As such, when a court determines whether a monetary award is appropriate, the “claim” has been disposed of and nothing but the entry of a judgment, or its functional equivalent, remains. 14 Second, Judge Cabranes reasoned that a narrow statutory exception – allowing magistrate judges to summarily punish acts of criminal conduct that occur in the magistrate’s presence – to the general principle that magistrate judges may not dispose of claims when acting by referral already exists and there was no basis to expand this exception by judicial action. 15 Judge Cabranes concluded accordingly that a magistrate judge is authorized by law only to recommend, not impose, sanctions absent the consent of the parties. 16 the power to impose monetary sanctions and concluded that all indications “very strongly support” the conclusion that the Act empowers magistrate judges to impose sanctions, except in the form of sanctions that dispose of a claim or defense. 2. The Honorable Pierre Leval Judge Leval found that the Act empowers magistrate judges to hear and determine a wide range of matters, save for those matters expressly excepted within the Act. 17 Moreover, Judge Leval relied upon the amendments to the Act made by Congress in 2000, which further vested magistrate judges with a range of contempt powers. 18 Judge Leval viewed this as indicative of the fact that Congress intended to allow magistrate judges 19 While Judge Leval agreed with Judge Cabranes that sanctions that are case dispositive require de novo review, he stated that a Rule 11 sanction does not dismiss a suit or prevent a claim or defense from being advanced. 20 As such, Judge Leval concluded that a magistrate judge is authorized by law to impose by way of Order, Rule 11 sanctions without the consent of the parties. 21 3. The Honorable Chief Judge Dennis Jacobs Chief Judge Jacobs declined to join the opinion of either Judge Cabranes or Judge Leval and instead stated that the issue – whether magistrate judges have the authority to order Rule 11 sanctions themselves, or only to make a recommendation of Rule 11 sanctions to the district court – is an issue that divides the district courts within the Second Circuit and the Circuit Courts themselves. 22 Chief Judge Jacobs went on to state that he would defer the issue to Congress. 23 1. 28 U.S.C. § 636(b)(1)(A) (2002). 2. See, e.g., Alpern v. Lieb, 1993 U.S. Dist. LEXIS 3229 (N.D. Ill. 1993); Maisonville v. F2 Am., Inc., 902 F.2d 746 (9th Cir. 1990); DiPonio Construction Co., Inc., v. Int’l Union of Bricklayers, 2010 U.S. Dist. LEXIS 62047, * (E.D. Mich. June 23, 2010); McGuffin v. Baumhaft, 2010 U.S. Dist. LEXIS 59497 (E.D. Mich. June 16, 2010). 3. Kiobel v. Millson et al., 592 F.3d 78 (2d Cir. 2010). 4. See Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457 (S.D.N.Y. 2006). 5. See Kiobel v. Royal Dutch Petroleum Co., 2004 U.S. Dist. LEXIS 28812 *29, 43 (S.D.N.Y. 2004). 6. Kiobel, 592 F.3d at 80. 7. Id. 8. Kiobel, 2004 U.S. Dist. LEXIS 28812, at 32- 34. 9. Id. at *34. 10. See Id. at *37. 11. Kiobel, 592 F.3d 78. 12. Id. at 85; see also Bennett v. General Caster Service of N. Gordon Co., 976 F.2d 995, 998 (6th Cir. 1992) (“nothing in the Act expressly vests magistrate judges with jurisdiction to enter orders imposing Rule 11 sanctions”); Alpern v. Lieb, 38 F.3d 933, 936 (7th Cir. 1994) (“the power to award sanctions, like the power to award damages, belongs in the hands of the district judge.”) 13. Kiobel, 592 F.3d at 86-87. 14. Id. at 87. 15. See 28 U.S.C. § 636(e)(2); Kiobel, 592 F.3d at 87-88. 16. Kiobel, 592 F.3d at 89. 17. Id. at 91 (the Act “broadly empowers magistrate judges to ‘hear and determine’ any pretrial matter designated to them by the district court, with the exception of a specified list of matters. As for the matters falling within this excepted list, the extent Significance of the magistrate judge’s powers is to take It follows from the Second Circuit’s evidence and submit recommendations to the district court…[and] such additional decision in Kiobel that there is no duties as are not inconsistent with the binding precedent in the Second Constitution and laws of the United States”) Circuit as to whether a Magistrate (citing 28 U.S.C. § 636[b][1][B]). Judge has the power under the Act to 18. See Federal Courts Improvement Act of 2000, Pub. L. 106-518 § 202 (2000) (address- impose sanctions. Consequently, until ing “Magistrate Judge Contempt such time as Congress or the United Authority”). States Supreme Court addresses this 19. Kiobel, 592 F.3d at 98. issue or resolves the Act’s inherent 20. Id. at 97-98; see also Lawrence v. Wilder Richman Sec. Corp., 467 F.Supp. 2d 228, ambiguity, the analysis of Judges 232-33 (D. Conn. 2006); Laser Med. Research Cabranes and Leval – albeit dicta – Found. v. Aerofloat Soviet Airlines, 1994 U.S. provides a roadmap for practitioners, Dist. LEXIS 15210 *2 (S.D.N.Y. 1994); and judges alike, on each side of this Magee v. Paul Revere Life Ins. Co., 178 issue. F.R.D. 33, 37 (E.D.N.Y. 1998). 21. See also Maisonville v. F2 Am. Inc., 902 F.2d 747-48 (9th Cir. 1990). 22. Kiobel, 592 F.3d at 106-07. 23. Id. (“I respectfully suggest that this knot needs to be untied by Congress or by the Supreme Court.”). 9 Magistrate Judge Pitman 11 The Kathryn C. Cole, a former clerk to the Honorable Richard C. Wesley of the Second Circuit Court of Appeals, is a commercial litigation associate at Farrell Fritz, P.C. Farrell Fritz, P.C. 1320 RXR Plaza Uniondale, NY 11556 Debt should never be the sole reason behind treatment of an employee or applicant ©2010 Long Island Business News, all rights reserved JULY/AUGUST 2010 I VOL. 59 I NO. 11 I WW WW WW .. NN AA SS SS AA UU BB AA RR .. OO RR GG Banking/Bankruptcy Law Focus Bankruptcy law vs. employment discrimination Employers must be cognizant that they do not violate Section 525 as to employees and, perhaps, job applicants who have filed for bankruptcy protection or who indicate that they intend to file. Employees Who Have Declared Bankruptcy Section 525 is implicated in a variety of circum- The ongoing economic crisis has caused a stances. Suppose, for instance, that the significant increase in the number of indi- President of a company learns that an viduals who are filing for bankruptcy on accountant employed by the company has Long Island, throughout New York, and filed for bankruptcy protection. The across the nation. More and more people, in President may experience some trepidation a final effort to escape crushing debt, have in allowing that individual to have contin- sought to obtain a financial “fresh start” by ued access to corporate records and funds. availing themselves of the protections of the However, under Section 525 the company Bankruptcy Code to stop creditors from would be precluded from demoting or termi- attaching their assets or foreclosing on their nating the debtor solely on account of his or property. her bankruptcy. Since individuals who seek bankruptcy For example, in In re Hicks 65 B.R. 980 protection are already financially burdened, (Bankr. W.D.Ark. 1986), the court relied on the Bankruptcy Code bars employers from Section 525 in holding that a bank discrimi- taking certain actions against bankrupt employees nated against a bank teller by transferring her to a and job applicants which may be detrimental to their position having no customer contact after the teller “fresh start.” filed for bankruptcy under Chapter 7. The In particular, Section 525 of the bank attempted to justify the transfer of the Bankruptcy Code, 11 U.S.C. § 525, protects bankrupt teller into a bookkeeper position persons who have sought bankruptcy protec- by arguing that the reassignment did not tion from being terminated by their employ- involve any decrease in compensation and er or otherwise discriminated against in that it was made: (1) to prevent the “embar- respect to their employment. An employer rassment” of the teller; (2) to prevent any may not terminate the employment of, or harm to customer relations and public confi- discriminate with respect to employment dence; and (3) because the bank could not against, an individual solely because that bond a teller with financial difficulties. The individual: (1) is or has been a debtor; (2) has court ruled in favor of the teller, and found been insolvent; or (3) has not paid a debt that the discrimination prohibition of that is dischargeable in bankruptcy. Section 525 is violated “when the Matthew V. Spero Stuart I. Gordon Nassau Lawyer n July/August 2012 n 13 Join us for a fun day of golf, tennis, good food raffles and great company! All proceeds benefit the WE CARE Fund.* The Nassau County Bar Association’s WE CARE Fund Stephen W. Schlissel Golf & Tennis Classic Monday, August 6, 2012 Middle Bay Country Club, Oceanside, New York and Rockville Links Club, Rockville Center, New York Honoring M. Allan Hyman, Esq. and Lois Carter Schlissel, Esq. Registration & Brunch Rockville Links — 8:45 a.m. Middle Bay — 9:30 a.m. Golf Shotgun Rockville Links — 11:30 a.m. Middle Bay — 12:15 p.m. Day of Golf - $495 Special Golf Packages (includes brunch, golf, cocktails & dinner) �Golf Foursome + Tee Sponsor – $2,600 Foursome (SAVE $100)........$1,880 � Golf Foursome + Pin Flag Sponsor – $2,600 Day of Tennis - $295 �Day of Golf for one & dinner for (includes brunch, cocktails & dinner) additional guest — $625 Cocktails & Dinner - $250 �Young Lawyers Package – $250 (members of the Young Lawyers Cmte. can golf at 8 a.m. (Middle Bay only), spend the day, & stay for cocktails & dinner) Special Package Golf 101 � Commemorative Journal �Inside Front Cover — 3,500 �Inside Back Cover — $3,500 �Gold Page— $1,750 �Silver Page — $1,500 �Full Page — $1,250 �Half Page — $750 �Business Card — $400 New online registration: www.nassaubar.org/calendar/WE CARE Name Address Cell Phone Course Preference Check payable to WE CARE Visa / MC / AMEX (circle one) Total Enclosed: $ Classic Schedule Tennis Middle Bay — 11:30 a.m. Cocktail Party Middle Bay — 5:00 p.m. Dinner Middle Bay — 6:30 p.m. Not a golfer? Want to Learn the basics or improve your game – we offer a parallel event. This event will feature a golf pro providing instruction at beginner & intermediate levels, use of the practice driving range & putting green. You also have the option of staying for dinner after your lessons. Includes a golfer’s gift bag, 90 minutes of instruction on practice driving range, chipping area & putting green. This program will be held at Middle Bay only & begins at 1:00 p.m. ___Golf lesson for one – $150 ___Golf lesson for one + Dinner – $400 Name on Card Billing Address Acct.# Exp. Date Security Code
Page 1 and 2: THE JOURNAL OF THE NASSAU COUNTY BA
Page 3 and 4: By Christopher J. DelliCarpini and
Page 5 and 6: Personal Injury Focus The Emergency
Page 7 and 8: Personal Injury Focus Muhammad v. F
Page 9 and 10: Let the Buyer Beware Historically,
Page 11: School was just the beginning N BOT
Page 15 and 16: DOCTORS ... Continued From Page 3 J
Page 17 and 18: EMERGENCY DOCTRINE ... Continued Fr
Page 19 and 20: LAWYER TO LAWYER DIVORCE MEDIATION

COVER NL 09_06.qxd - Nassau County Bar Association

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