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

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

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I am in the midst of writing the Appellants brief due January 4, 2010 for the appeal (08-4323-cv at 2nd Cir)from the July and August 2008 order to dismiss in the NY reapportinment case challenging the 2000 Census reapportionment of ALL Federal and State districts drawn without use of the State of New York Constitution.

There is an active case ten years later now in DC 09-cv-1295 in which I am challenging the USURPER's use of the ACORN enterprise to enumerate the 2010 Census scheduled for April fools day. The question of what is the basis for having a 3-judge-court with 28 USC 2284 that gives SCOTUS appellate jurisdiction is crucial here especially since the USURPER acts are void ab initio since January 20, 2009. The SCOTUS cannot back away from the issue when it is the appellate court.
I am in the midst of writing the Appellants brief due January 4, 2010 for the appeal (08-4323-cv at 2nd Cir)from the July and August 2008 order to dismiss in the NY reapportinment case challenging the 2000 Census reapportionment of ALL Federal and State districts drawn without use of the State of New York Constitution.

There is an active case ten years later now in DC 09-cv-1295 in which I am challenging the USURPER's use of the ACORN enterprise to enumerate the 2010 Census scheduled for April fools day. The question of what is the basis for having a 3-judge-court with 28 USC 2284 that gives SCOTUS appellate jurisdiction is crucial here especially since the USURPER acts are void ab initio since January 20, 2009. The SCOTUS cannot back away from the issue when it is the appellate court.

More info:

Published by: Christopher Earl Strunk on Dec 21, 2009
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Case 1:04-cv-01193-LEK-RFT Document 109

Filed 07/31/08 Page 1 of 7

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK RONALD G. LOEBER, et al., Plaintiffs, -againstTHOMAS SPARGO, individually and as Justice of the NYS Supreme Court, et al., Defendants. 1:04-CV-1193 (LEK/RFT)

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 Doe’s (“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 Court’s January 8, 2008 Decision, the State Defendants are the only Defendants remaining in this action. Dkt. No. 81. I. Background On October 15, 2004, pro se Plaintiffs filed a Complaint asserting, among other things, various constitutional violations arising out of the Help America Vote Act (“HAVA”) ( Pub. L. No. 107-252, 116 Stat. 1666, 42 U.S.C. §15301-15545 (2002)). Dkt. No. 1. On October 29, 2004, the Court dismissed the Complaint. Dkt. No. 5. On appeal, the Second Circuit, inter alia, dismissed all claims pertaining to the November 2004 elections, but remanded “the redistricting claims” including

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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 York’s 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. The State Defendants now seek to dismiss the Amended Complaint pursuant to F.R.C.P. 12(b)(6) and 12(c), as well as F.R.C.P. 8(a). Initially, however, the Court must consider whether it is necessary to convene a three-judge panel under 28 U.S.C. § 2284(a). II. Discussion Defendants argue that Plaintiffs have not presented any cognizable constitutional question, that the Plaintiffs lack standing, that the State Defendants are entitled to dismissal on the grounds of legislative immunity and lack of personal involvement, and that the claims remaining in the 2

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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 plaintiff’s 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 obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). B. Three judge panel Defendants contend that because Plaintiffs lack standing and have not raised a substantial Constitutional issue, the case should be dismissed without convening a three-judge panel. Under 28 U.S.C. § 2284, “[a] district court of three judges shall be convened when . . . an action is filed

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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 Ass’n v. Levitt, 279 F.Supp. 40, 45-46 (S.D.N.Y. 1967)). B. Analysis of Plaintiff’s claims In turning to the Amended Complaint, the Court is aware that because Plaintiffs are proceeding pro se, the Amended Complaint is to be construed liberally. Phillips v. Girdich, 408 F.3d 124, 127-28 (2d Cir. 2005). Initially, the Court notes that the first, fifth, ninth, tenth, eleventh, thirteenth, and fourteenth causes of action allege violations related to HAVA. These claims, however, were dismissed by the Court’s Order dated January 8, 2008. Dkt. No. 81. Plaintiffs’ second cause of action (and possibly the sixth cause of action) alleges violation of New York State Constitution Article 3 Section 4 based on New York City’s allotment of 26 senate 4

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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 threejudge 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.1 The Amended Complaint does not appear to present a 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, discrimination2 (Am. Compl. ¶ 30), “rotten boroughs injury” (¶ 32), and “disproportionate diminished dilution injuries” (¶ 32), the Court is unable to decipher from the Amended Complaint a

The seventh cause of action may possibly make a possible gerrymandering claim, but as discussed below, a gerrymandering claim against the 2002 New York redistricting plan is insubstantial based on a prior decision. This comes from a very liberal construction of the following: “That Plaintiffs as US Citizens are denied equal protection and substantive due process suffer injury to individual Bottomup suffrage and Homerule autonomy of the PEOPLE within a municipal entity as a firewall against corruption entitled to a respective board of elections therein, suffer infringement of speech in the state legislature the US House, unequal due process in the judiciary and unreasonable unequally reimbursed unfunded financial burden upon New York citizen property differently than that for citizens of the several states, as a taking imposed by unconstitutional provisions of HAVA in the Congressional definition of “Voting Age Person” (“VAP”) rather than “Citizen Voting Age Persons” (“CVAP”), is prima facie discrimination evidence proven in related case . . .” Am. Compl. ¶ 30. 5
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clear Constitutional claim challenging New York State’s 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 Maryland’s 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.), aff’d, 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 and affirmed by the Supreme Court of the United States. Id. As previously noted, a Court may dismiss a claim if the Constitutional claim is insubstantial, Bailey v. Patterson, 369 U.S. 31. In this case, there is a prior decision finding that the 2002 New York redistricting plan was constitutional. Even with a liberal construction of Plaintiffs’ Amended Complaint, there are no possibly comprehensible redistricting claims brought by Plaintiffs that raise a controversy beyond the analysis in the prior decision. In addition, because Plaintiffs’ claims, even when liberally construed, do not present a discernable reapportionment claim under the federal 6

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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

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==================================================================== * * * * * UNITED STATES DISTRICT COURT * * * * * NORTHERN DISTRICT OF NEW YORK

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.

IT IS ORDERED AND ADJUDGED that judgment be entered in favor of defendants and against plaintiffs.. ORDERED that the defendant’s Motion to Dismiss is Granted; ORDERED that Plaintiff’s request for a three-judge panel is Denied; ORDERED that the Amended Complaint is DISMISSED in its entirety, all pursuant to the Order of the Honorable Lawrence E. Kahn, dated July 31, 2008.

DATE:

July 31, 2008

LAWRENCE K. BAERMAN CLERK OF THE COURT s/B. Norton By: DEPUTY CLERK

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
AN D R EW M. C U O MO Attorney G eneral ST AT E C O U N S EL D IVISIO N Litigation Bureau

Writer Direct: (518) 474-2913 Fax: (518) 473-1572 August 18, 2008

Hon. Lawrence E. Kahn United States District Judge James T. Foley Courthouse 445 Broadway, Room 424 Albany, NY 12207-2926 Re: Loeber, et al. v. Spargo, et al. 04-CV-1193 (LEK/RFT)

via CM/ECF

Dear Judge Kahn: Please accept this letter brief on behalf of the State Defendants in response to and opposition to 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) and reply papers (docket #102), the motion for reconsideration should be denied. Plaintiff Strunk seeks reconsideration of the Judgment in favor of the defendants (docket #110) and this Court’s corresponding Order (docket #109) dated July 31, 2008 which dismissed the Amended Complaint in its entirety and denied the plaintiffs’ request for a three-judge panel under 28 U.S.C.A. §2284(a). Rule 60 of the Federal Rules of Civil Procedure provides for very limited grounds for relief from a judgment or order. Rule 60(a) allows correction of clerical mistakes, oversights, and omissions, but has no application to the instant motion. Although the plaintiff does not specify the basis for the relief sought or what sub-section he moves under, it is presumed that the plaintiff moves under Rule 60(b). That Rule allows for relief from judgment based on mistake, excusable neglect, newly discovered evidence and fraud, among other reasons justifying relief. F.R.C.P. 60(b)(1)-(6). Since the plaintiff does not suggest either that there has been an intervening change in controlling law or that he has discovered new evidence, the defendants further assume that Strunk seeks to argue that reconsideration is necessary to remedy a clear error of law or to prevent manifest injustice. Under the applicable legal standards, however, reconsideration should be denied.

T h e C a p i t o l , Albany, N Y 12224-0341 Ž (518) 474-2913 * NOT FOR SERVICE OF PAPERS

Ž

Fax (518) 473-1572

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 judgments should not be lightly reopened." Id. The standard for granting a motion for reconsideration is strict and the plaintiff’s 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 court’s 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 appropriately addressed 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 Court’s Order was legally correct and did not work a manifest injustice on the plaintiffs. Accordingly, the Court should deny Strunk’s motion for reconsideration as this case does not present any exceptional circumstances warranting such extraordinary relief. The plaintiff has simply not met his heavy burden of demonstrating any grounds upon which the Court’s prior decision should be altered. Respectfully Submitted,

/s/ Aaron M. Baldwin
Aaron M. Baldwin Assistant Attorney General Bar Roll #510175 cc: All Plaintiffs All Counsel (via First Class Mail per attached Declaration of Service); (via CM/ECF)

DECLARATION OF SERVICE I, Aaron M. Baldwin, declare pursuant to 28 USC § 1746, that on August 18, 2008, I served the annexed Letter Brief upon 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, 2008 Albany, New York

/s/ AARON M. BALDWIN
AARON 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 882 Glens Falls, NY 12801 William A. Gage 10 Greenfield Lane Hampton, NY 12837 John Forjone P.O. Box 28 Clarendon, NY 14429 H. William Van Allen 351 North Road Hurley, NY 12443 Fairlene G. Rabenda 8 Claudia Lane Poughkeepsie, NY 12603 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 351 North Road Hurley, NY 12443 Burr V. Deitz 444 Whitehall Road Albany, NY 12208 Roy-Pierre Detiege-Cormier 25 Hattie Jones Circle Brooklyn, NY 11213

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ELECTRONIC NOTICE OF APPEAL Dear Sir or Madam, Please take notice that on September 2, 2008 the court received a notice of appeal in the action set forth below. This notice serves to inform the Second Circuit of the pending appeal and provide them with the basic information they need to begin processing the appeal. 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 this appeal. Should you have any questions prior to the issuance of a scheduling order, please feel free to contact the District Court Clerk’s Office. Sincerely, Lawrence K. Baerman U.S. District Court s/ By: Britney Norton Deputy 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 NOTICE OF APPEAL - Docket # 118 Document being Appealed: Final Judgement: Interlocutory Appeal: Other: FEE STATUS: IFP revoked COUNSEL: TIME STATUS: CJA Timely X Paid Docket # 109, 110 Docket # Docket # Due X Application Attached RETAINED Out of Time Denied Denied N/A Waived (IFP/CJA) IFP pending before USDJ PRO SE X

MOTION FOR EXTENSION OF TIME: Granted CERTIFICATE OF APPEALABILITY: Granted

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK RONALD G. LOEBER, et al., Plaintiffs, -againstTHOMAS SPARGO, individually and as Justice of the NYS Supreme Court, et al., Defendants. 1:04-CV-1193 (LEK/RFT)

ORDER Presently before the Court is a Letter Motion filed by Plaintiff Christopher Earl Strunk (“Strunk”) requesting reconsideration of this Court’s 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 Strunk’s Motion. Response (Dkt. No. 117). A. Legal Standard The standard for granting a motion for reconsideration is strict, and “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.” Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The burden on a party moving for reconsideration of an order is thus substantial. Toland v. Walsh, No. 9:04CV-0773, 2008 WL 657247, at *1 (N.D.N.Y. Mar. 7, 2008). There are only three possible grounds upon which motions for reconsideration may be granted: (1) an intervening change in law, (2) the

1

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, Strunk’s 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.”1 Letter Motion at 1 (Dkt. No. 115). However, Plaintiff has not actually 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 against him or in favor of any adverse party.” In addition, as the Supreme Court said in Liteky, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555-56 (1994).2 Plaintiff has also failed to meet the requirements of

Strunk then includes examples, asking whether the Court has taken any oath other than the oath of office, such as “a Masonic oath ... [or] a Kolnidre oath in which you must forgive all in your private capacity.” Id. It should also be noted also that the determination of whether such an affidavit is timely and legally sufficient is made by the judge whose recusal is sought. See, e.g., Berger v. United States, 255 U.S. 22, 32, 36 (1921); LoCascio v. United States, 473 F.3d 493, 498 (2d Cir.2007) 2
2

1

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 Court’s personal jurisdiction over Plaintiffs, this claim is waived since it cannot be brought after the Court’s disposition of the case, and since Plaintiffs already waived any challenge to the Court’s 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 the paradigm of such a waiver) (citing Adam v. Saenger, 303 U.S. 59, 67-68 (1938)). Plaintiff Strunk next reiterates various legal arguments already presented to the Court regarding New York State Constitution’s Article 3, Section 4 and the Plaintiffs’ potential federal constitutional challenges to the redistricting plan. However, a motion for reconsideration “should not be granted where the moving party seeks solely to relitigate an issue already decided.” Shrader,

(quoting Nat’l Auto Brokers Corp. v. Gen. Motors Corp., 572 F.2d 953, 958 (2d Cir.1978), cert. denied, 439 U.S. 1072 (1979)) (“‘a judge has an affirmative duty to inquire into the legal sufficiency of such an affidavit and not to disqualify himself unnecessarily . . .’”). 3

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 Court’s 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 Plaintiff’s Motion for reconsideration (Dkt. No. 115) is DENIED; and it is further ORDERED, that the Court’s July 31, 2008 Order, dismissing the Amended Complaint and denying Plaintiffs’ request for a three-judge panel (Dkt. No. 109) is AFFIRMED; and it is further ORDERED, that the Clerk serve a copy of this order on all parties. IT IS SO ORDERED.

DATED: September 10, 2008 Albany, New York

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Ronald G. Loeber, et al. vs. Thomas J. Spargo, et al.

AMENDED CLERK’S CERTIFICATION Civil/Criminal No: 1:04-cv-1193 CCA No:

I, LAWRENCE K BAERMAN, CLERK of the District Court of the UNITED STATES for the Northern District of New York, DO, HEREBY CERTIFY that the foregoing docket entries, with the exception of the documents listed below are maintained electronically on the court’s CM/ECF system and constitute the Record on Appeal in the above-entitled action. The following documents are not available electronically and are currently maintained in traditional fashion in the city of Albany Clerk’s Office. This case is 100% Electronic. FILING FEE PAID 9/8/08. Any additional records which are not currently available electronically, please feel free to contact us and we will arrange for the document(s) to be made available to you. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Seal of said Court to be hereto affixed at the City of Albany, New York, this 11th day of September, 2008. Lawrence K. Baerman, Clerk U.S. District Court s/ By: Britney Norton Deputy Clerk

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W 9 2283 S
Note 493

28 3,2284

Act (ECOA) and implementing regulations by requiring her to guaranty loan to

H~~TORICAL AND STATUTORY NOTES

I

,

3 2284;'

'

.*

-judge cedure

court; when r e q u i ~ composition;
\

p

ms only the composiof the.judge district
heard and deter-

(a) A.district court of three judges shall be convened when ot

required by Act of Congress, or when an action is filedchall

irig the constitutionality of the apportionment of congressional
, . tricts or,the apportionment of any statewide legislative body.

,

(b) In any action required to be heard and determined by a dl court of three judges under subsection (a) of this section, the co sition and procedure of the court shall be as follows: (1) Upon the filing whom the reqoest is three 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>

*

28 & 2284
po e l rjudgmea&, my ,

is5

ZN~UNCTI~S

.-,,
L ,

28 § 2284

ble, appellate review 223 h n i d of request for dkmissal of action, nations of single-judge court 126 hscretion of court 9 DirmLssal of action, duties and deteiminations of single-judge court 124133 rr Generally 124 Denial of request for b f u d p court 126 Hearing 127 - ' Insubstantial dim i29 Jurisdiction lacking ' 130 Miscellaneous actions 132

gle-judge court 132 ~njunctions, jurisdiction of t h r e ~ - j ~ d court, duties and determinationr 2 -fudge court 179 Insubstaatial 'Iaim, dismissal duties and determinations of 8 Interlocutory orders, appellate m fudgecourt 129 V

'

133 Moot questions 128 Partdolnder 131 Time of determinationb' 1.25 Dbmissal of action, duties and determinations of three-judge court 182 Dismissal of qction, issues reviewable, appellate review 219 Dismissal of appeal, a w a t e review -1.229 Dlsqualificatlonof judges 19 Dissolution of three-judge and determinations of h j u d g e .Icourt 186 Dissolution of h f u d g e courtp issues , revfewable, appellate review 220 Duties and determinations of single, judge court 121-170 Duties and determinations of s w l e
+

ure of court 7

Refusal to convene three-judp 221

58 Jurisdiction, duties and detennl of singlejudge a m 130, 1 0 4. Generally 140 Dismissal of action 130

dges sight! order or de-

Temporary restrainingorders, duties and determinations of single-judge court 135

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

is21
datarmlnatlonr s f

~ndrpenclentdetermination, jurirdictlon tiaranddatar

2rl'lB

.
'i

deter143
,

three-fudge court 183 Validity of proceedings by improadently convened court, duties and determinations of three-fudge court 187 Voting Rights Act, actions requiring &judge court 95 Waiver 23
,

M

I

I

Z

,

, ,

-

I,

I,,4 2284
r,,,
,%

PARTICULAR .PROCEEDINGS

part

I

28 :42284
'Note 9

\>,-I.# G E N E M Y Subdivision Index

,

hl~f circuit fudge

11

Civil Procedure

1

conerally 6 Wtutory nantk of court- 7

I,

r ' t

ctional nature of d o n
'

.

28 :9 2284
,
I

PARTICULAR .PROCEEDINGS

Part16

*:42284
Note I9 6. N a W o f m a d l y ' A threk-judge c h f i 'is L ~ Ma' but diffdientcourt from h e district'&,

.,,., , . ', li, QENERAi-Ly
,

I

Subdivision I d c ~ .

Adthorlty 6t chlef i t

j u d b 10 Burden of proof 17 Cowlusiveness of determlnn'clorl on other judgea IS Concurrent of didtrict judge U& chief ctrcuit judge 11

See, ,@, Ritts v. Knowles, D.C.Wtn,10 339 F.SUPP. 1183, affumed 478 1405; Pervis V. LaMarque Independ School Dist., D.C.Tex.1971, 328 t.',YU 638, reversed on other grounds 466 1' D'C'Va'lY '4 Rakes "' 3 18 F.Supp. 181. Federal Courts C

r

.
7, -astaMwyna-,&-

I

T

.,,

"

1

.

'

Construction w ~ t h 1 &ruler 3 Dlrcretlon of court 9 Dlqualiflcatlon of j u d w 19 Judicial nature of dete-tion' 8 Jurlsdlctlonal nature of section 5 Law of case 21 Natureof court 6.7 Generally 6 Statutory -tun of UXUL 7 Notlce of hearing of action 16
$t

Pdure 2

991
2. Co-don

with' Federal RU~U Civfl ProcedrtiP F'Supp. 382'

Courts

Three-judge district' c a m is stahtc)ry with limited $phere.bf operation,, Jeh6vah's Witnesses ib Stkte of'wash. v . King Hospi%l unit No. 1 b~rvikt~], W.D.Wash.1967, 278 F.Supp. 488, affirmed 88 Sect. 1260, 390 U.S, 598, 20 b ~ d , z d 158, rehearing denied 88 S.Ct.,l$k, 391 U.S. 961.20 L.$d.Zd 874. Federal Courts C 991 . 8. , Judgdal naturr d&,+itlsuon In determining whether a complaint a]legeg a case appropriate for,a performs district court he district judge a judicid, as distinguished from a minis-

P u v 4

for '&~+~dge court 12 ' Stare decists 22 $ t r t u t o ~ n a ~ e o f c o u r7 ' t T h e court convenes 14 time for determinaan 13 Walwr 23
(.
/ . I

"

ent of this section is jurisdiccannot be waived. Noe v.

versity of S.C., D.C.S.C.1970, 319 F,Supp. 193. Federal Courts e 1011

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

I , . , ,

I,,

,d

t,

(

4

,

,T'fl'l'..

s$r8 2284
Note 20

PARTICULAR PROCEEDINGS Part 6
M6- Courts . 1967.269 F~SUPP.

28: s2284
Note 66

, w.y,compafiy seebag underlstate law t~ wain enforcement of union-shop con-

by n B n d o n aployees of rail+ enee d Branches -r-WJlace* M.D.Ala'

96(1)

tract, where on removal to federal court, ,case ;was heard by three-judge district couh on :hotion to rkmand as well as qpbrl, niodon to dismiss, order remanding' case would be no less effic si@ed by three judges, than if dibuict judge alone. Alle* Y. Ry,',Co., W.D.N.C.1953,,1I4 F.S courts- 101 , 3 g .
>.,4<.!,

,

13, , * Z i a ; R d f ~
*judge diswicf coiitt4 judgment t Utah Legislature was constitutionally $,apportioned was final'j~ldgmentand wah law of the case I prokeeding bn n by legislator to intervene in the CaSe, Petuskey v. Rahpton, D . C . U ~ 1969, 307 ~ , ~ u p235, reversed on other' p. igrounds 43 1 F.2d, 378, certiorari denied 91 s.c~. 882, 401 b.$. 913, 27 t.Ed.2d , 819. a c ~ ~ r t 99(6) s , I ,. ;I. ' m ~ s ~ ~ k R ~ nG O V s ~ ~ N I ~ ohi E , the, United hfu. S U P ~ C ~ Subdivision Index court,vacated judgment ,of,threep~udge court and remanded that cause t the district court for further proceedings+, where the Supreme Court expressly stated i its opinion that it indicated no n sought 5s views on the merits and where neither jdsdlction 58 thk mandate nor opinion directed entry of ~~~m~ 53 a decree, the law,oEthe case doctrine had ~,,&jes or r e k f sought 54,SS , no applicat~onand case was treated. on Generally 54 remand, as upon original submission. ~eclaratory judgment 55 , Moody v, Gallion, M.D.Ala.1968, 286 Standing 56 ~.Supp. 653. Federal Courts 480, substantial clalms , 57

,

ere

*

I-

I

*

22. Stdre dedsis . ,
hree-judge district

decisions of the court circuit,, 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 was bound by any,judicial decisions other' than those of the U i & States Supreme nt n Jehovah's Wimesses i ,State of ' Wash, v, King Counry Hospital Unit NO. 1 (Harborview), W.D.Wash.1967, 278 F,Supp,' 488, &-d 88 S.Q. 1260, 390 U,S,598, 20, L.Ed.2d 158, rehearing deh\ed 88 8.Ci.' 1844, 391 U.S. 961,,,?0 L,Ed.Zd 874. Courts @= ,960); Federal ,, Co~rts*371*, , , It Is clear duty of w - j court P follow dscision of,is t
1

,+

.

r p p g l , Nab-,
9

I

1 ,

,

4

,,

NAACP Sts
, '- ,
, h3 ,
1,
A

*

28~9 2284
Rice,

PARTICULAR PROCEEDINGS

Part 6

28::§Note 83 2284

Nets 56 der dismissal of the complaint. Puerto
Intern. Airlines, Inc. v. Colon, D.C.Puerto Rico 1975, 409 F.Supp. 960. Federal Courts 1012
,;

ST., ! substantial claims, considerations

governing

can be based on absence of federal juris-

ral Courts *991

eppor- . tionment. actions requlrtng threeJude comi Question of congressional redistricting arose under the Constitution of the United States and was an issue of federal
83.

-Constitutional &ms,

F,Supp.Zd $43, affirmed 332 F.3d 769. Federal Courts 998 ~ l d i m ssf plaintiff seeking to enjoin

.

28""S 2284
Noh .a3

Z%(t2284
Noto 80

msntarives to be apportioned among several.states according to their respective nwbers, failure to do so could result in deprivation of right to select representaHves in violation of U.S.C.A. Const. Art. 1

ck,F.D.Pa.1980,503 F.Supp. 657. Courts 991

ment, actions requlrlng t

Anderson, D.C.Kan.1964, 229 F.Supp. 271. United States CZJ 10 A three-judge district court had jurisdiction of subject matter of an action seeking congressional redistricting. Maryland Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, D.C.Md.1964, 226 F.Supp. 80. Federal Courts e=226

n challenging constitutionality of

28 1% 2284
NOt.I8@

PARTICULAR PROCEEDIUGS

Part 6

h 155 INJUNCTIONS .*

.

',

Ls

2819 2284
Note.95

18&.Edr2d M3, on remand 271 FSupp. 477; Federal ,497, . Federal Courts

Where the North Dakota egisl la tub

had failed to reapportion itself, in order to correct inequality of representation, Count4 e 9 9 7 ., of h-juds three-judge district court was required In fashion legislative apportionment p1.w not necessary where one of appor- which would tend to equalize population tfbnment stahltes under attack was local hw and not one statewide application in each of the legislative districts in ordur One vat'" cornpb with the gene& M of 1 4 the' other v' Meier* D'C'NoP concept. , p p l l c m since it was in hnapplicable 1972, 372 F.Supp. 363. States 6= 27(10) to only one city. Yelverton v. Driggers, M.D.Ala.1974, 370 F.Supp. 612. Federal 91. Miscellaneous c a m not qriirlng three-judge court, appbw C6uts m 997 Case involving alleged hC-atory tlonment, actions requjrfng t h d

-.

'lone

-

*

,+.Glassaction by county residents to have federal district court declare that a p ~ o r tfonment of Council denied them equal protection was not one apt for adjudication by three-judge district court even though constitutionality of 9 De1.C. 9, b165 establishing boundaries of councilpanic .districts was involved. Keil V. S&orr,.D.C.Del.l968, 282 F.Supp. 608. Federal ,Courts 1000 '~ActiolI c d ~ t i o n malapportionfor bf of County Supervisors' districts w s a not one,directed against state statute, SO as to invoke jurisdiction of three-judge district court, where statute involved did w t delineate district boundaries and plaintiffs did not seek injunction against operation of statute but sought interference with local legislation. Dyer v. Rich, N.D.Miss.1966, 259 F.Supp. 736. Federal Courts @ 997

1979, 601 F.2d 859. Federal Courts

90.

-

-MiseeUme~us

requiring *judge court, apportionment, actlons reqdring three-judge court

'. . L &lAsll

.

')

Y'T_

-,." 0, --7 -

7-7

28.32284
Note 123

~ f ~ti&.&&t~b b ' ~ p&ll@ to' 132 p o r t i o m t of parish schoo1,board &$ :mnacl were insubskintialp rince no adequate sdbmission had been . tb Attorney -General of any of dhanges made and Attohey General reto defendants' purported submi* S~QW :within 60-day reply period, and thugla &=-judge court was not required be convened under Voting Rights Act m, d i ~ m i df d l d ' ~ 9 6 5 . Broussard v. Perez, E.D.La. ip?6,416 ~.Supp. affirmed 572 F.2d 584, l # l ~certiorari denied 99 S.Ct. 610, 439 J , ~ ; s1002, 58 L.Ed.2d 677. Federal , 'Corn C=D 998 ,,Whether practice9 had evolved November 1 1968 for ,appointment ofa1 5 Spsoforn of&ction snd of not reqnesting rOmovalof appointee under state election bw without consent of assembly &strict bpder was question to be heard and dewmfned by court of.three judges. BeatQ,V. Esposito, E.D.N.Y.1976, 1 F . S ~ P P ~ 41 107, supplemented 439 F.Supp. 830. Federal Gourts 995 ~eoessity -jud& of cmvl '131, lhb 96. Fcdcr$l defenses, ' actlo- Isqul'rhng ~enerally 137 three-jdge court A-tke-judge court is mandated when hction challenges the appo 'the state legislative body on federal constitutional grounds pldntiffs raise only a state co shdlenge, it is not clear th ,f 6 federal defense impli ~

tions of single-judge coutt For purpose of determining three-judge district court, allegations'of complaint must be deemed to be true.

*

I

I
# \ I % - I

#, ~ m e AND ' ~ ~ E ~ I N A ~ O N S s
1'1

C

I,

OP~SINOLEJUDQE COURT

'

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

,.

' '.

'

h. 155 -INJUNCTIONS .
mf23
a(tntrto consider Voting Righb Act challn& to districting plan; in determining

,
129.

28 ., 2284 §
d o n , duties de-natiom of single-judge court District judge to whom application for three-judk district court is addressed may dismiss complaint which fails to raise substantial federal question. Lindauer v. Oklahoma City Urban Renewd Authority, C.A.10 (Okla.) 1971, 452 F.2d 117. certiorari denied 92 S-Ct. 1293, 405 U.S. 1017, 31 L.Ed.2d 479, rehearing de. died 92 S.Ct 1607, 406 U.S. 911, 31 L.Ed.2d 823. Federal Courts b 1012 Single judge may dismiss action alleging violation of preclearance provisions cd section 1973c of Title 42.wher-e claims are wholly insubstantial and completely without merit. Miller v. Daniels; S.D.N.Y. 1, 509 F.Supp. 400. Federal 198 1012 courts The duty of &single judge to whdh a request for a three-judge court is made is f h t to determine whether a Sdbstaritid claim for relief is raised by the suit; <ifthe suit raises no substantial claim, the sing16 judge should properly dismiss the action on his own. Simkins v. , Gressette, D.C.S.C.1980, 495 F.Supp. 1075, affirmed 631 F.2d 287. Federal Courts 1011 , ,

-dbstantldend , ? d l s W && of

W e 130

hether .to convene threejudge court, nele judge . has authority to decide l h e h .the complaint states a substam J claim.- Gonzalez v. Monterey County, da N2D.Ca1.1992, 808 F.Supp. 127. District court must take allegations, it1 amplaint a s true for purposes;-of deterilning whether to convene a three-judge 6uurt; single judge can neither evaluate rrrits of claim, nor extend its inquiry
0

motion for convening $ct court on grounds were insubstantial had motion to dismiss as to e only by a three-judge

-

130.

-'action,a&tic%i o kandgdeknnina~ ~ I l f c t ' W , dfsmlsret of

* 1011

Moot questions, dismissal of

t court would be disAvlnr v. Mangum, F,Supp. 754. Federal
I "

I ,

1

tlom o single-judge court f Single judge to whom application is made to convene three-judge district court may dismiss action if jurisdiction is lacking. Walker v. Gilligan, C.A.6 (Ohio) 1973.487 F.2d 508. See, also, Crossen v. Breckenridge, C.A.6 (Ky.) 1971, 446 F.2d 833, on remand 344'F.Supp. 587: Board of Ed. of Independent School Dist. 20, Muskogee, OW. v. State of OH., C.A.10 (Okl.) 1969, 409 F.2d 665; Carrigan v. Califoinia State Legislature, C.A.Cal: 1959, 263 F.2d 560, certiorari denied 79 S.Ct. 901, 359 U.S. 980, 3 L.Ed.2d 929; South Central Bell Tel. Co. v. Public Service Commission of Kentucky, D.C.Ky. 19764 420 F.Supp. 376: Jachon v. Associated Hospital Service of Philadelphia, D.C.Pa.1976, 414 F.Supp. 315, affirmed 549 F.2d 795, certiorari denied 98 S.Ct. 117, 434 U.S. 832, 54 L.Ed.2d 93; Leonhart v. McCormick, D.C.Pa.1975. 395 F.Supp. 1073; Gravel v. Laird, D.C.D.C. 1972, 347 F.Supp. 7: Atlee v. Laird, D.C.Pa,1972, 339 F.Supp. 1347, &med 93 S.Q. 1545, 411 U.S.911, 36 LEd.2d 304; W,E.B, Duboir Clubs of America v,

,b

~+,&$&~~~;;: ,,&&J,&&&.:a&&*&*dlt *i"gg,

SS?$ 2284
Hotel$SO

PARTICULAR PHOCEEIYINGS

Part 6

2 8 2284
Note 138

cluk. D.-J~D;c;~~@, ~.Supp. 629. .285 , Fede~d Cat& 1012 .' .'
three. J,,dA do &ked -ii, fidiiti . district kourt determine wheth& ' jurisdiqtion, &xists in district bod,' arid if lie properly cotrcludes that theye is Lo jurisdicti&, ~s power to disbs Co&ppBint,as as 'to deny motion to convene three-judge tribunal, is not ci+..umscriw by this =tion. Lion Mfg. 'carp,V, Kennedy, C.AD.C.1964, 330 ~ , 2 833, 117 u . s . A ~ ~ . D .367. ~ederal d c. Cbutts 1012 .I J ,..,, % ~ n suit ' b ~ + r e q d g Anvetping .of three-judge, district court to co~~tifutioual question, single dis#~f.,j;rdge,in d i n g on motion to dis*a, .rnayvtin first instance determine whether court has jurisdiction even to ~o@der,applicability of hee-judge pangl or *ether ,action is precluded for ~ q c ~ ,bjectfpa~ 4 jurisdiction. SafeN& Zutuual ins. Co. r. Corn. of Pa., 2'$&&974, 312 FSupp. 939. .Feded
0 .

S.et\~lt58.*319 LJ-S:75oP 87 L.Ed. 17041 courts- 101 2 132. '~18cellanemm dl*

-

'G'

I

.

. *duties andmd~e t e n n i n a ~ ~+ sin. Temm mMnlng , of h
gle-judge a ~ ~ r t

ad Courts

N.D.Mhs.1991, 776 F.Supp. 1142. Fed1011

*

,*

-,I,

act to adopt a constitu

podo-ent.

Mary1

f
606'

~

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~

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~

Pir*. daty .of mle .federal district court judge Y to p a s on sid6cieirq of a m plaintc:~pe&caIly as to whether W Justiciable con-w is presenwd r e , which he powers, and if lac@ j-he ,+? nnines hat the diction, he,must.dismiss suit. . O'Hair y, ",S,, D,C.D.C.,1968, 281 F.Supp. 815. Fpderd>Civil Prdcedure 1742(1)-'
I"';,

,,,
'

q i m 1012 , ,
,
I

0

to

duties and d e t e d n a t b m of bl""'d*gl+judge court !if; ;ingle judge, ,
"

,p ' \w I

d-

,

Dgndkning a t h e j u d g e a motion allure ,to join necessary parties. can 'Civil Liberties Union of Md. v. df Public-Works of State of Md., D. 1972, 357 F.Supp. 877. ,Federal C c 1012 . , ,Pow* of tin*Ie, to wss of absence of Idunction dton *ndllpensable party is not n d Y , i n cbna,stsnt sirnil&. pawer in threeluy & &r it hm di9t&t ur unneccsaary particjpatjon f,' two *dditional judges ckould not indidate the court'r action i any event, or cut off any h rlpht or privilegeof Osage Tribd bdlanl v, I&#, D,C.DC.1942, 45 ~ , s ~ p 179, aff[rmed 133 F,2d 47$ 77 p, , . 114, cartlo& 63

&'ejdge

ua

j

. I

492..Y*YL,iii ;B

rszg 2289

~ART~CULAR PRWEEDINGS

Part 6
be heard

28'.§ 2284

$re-

of New York Hntm. Q.D.N.Y.1953, 116 F.Supp. 401. C o w ,101

Note 145

is

144- Attorney fees, d ~ t i b d & t h a

nations of alngle-judge CO&

, .In passlhg upon a request for a threeJudge district- court, SiWle district court ludge must not make a decision even as dequacy of claim for equitable relief if q~eqtion arguable. Brennan v. Greenis beum, (E.D.Pa.1974, 377 F-S~PP.4S9. Fedel$ Courts 1011 A dngle federal district judge has no Juqsdiction to proceed to, merits of a &iim ~f formation of a three-judge di.5t ~ i c t b m is required. Police officer^' c ~~ild,, vat.'bnion of Police Officers. AFLC I v. Washington, D.C.D.C.1973, 369 ~ ~ + ~ $ ~ : S ' 4 3Federal Courts . 991 ,,district judge to whom petition for em*rneling of three-judge district court is presented has severely limited jurisdictlon to cofihider merit of factual allegatione. ' Bistrick v. University of S.C., D,C,S,C.1970, 319 F.Supp. 193- Federal Court8 1011 . ~tia nbt ordinarily fLncti

.
Although action was tried before threeJudge court, issue of attorney fees could be p r o p d y determined by a single judge. . Mader v Crowell, M.D.Tem.1981, 506 F.Supp. 484. Federal Courts e 1011 r45. Qtanding, duties d e tions of singlejudge A single judge can consider an issue of standing convening a three-judge district court when there has been a request for such a court. American Civil Libe*es Union of Md. v Board of public . Works of State of Md., D.C.Md.1972, 357 F.Supp. 877. Federal Courts 1011

v.

*

F. D. ton

v.

v. DUTIES AND DETERMINATIONS;
OF THREEJUDGE COURT Subdivision I&
,,&rOl ,&ci1

of -Judge
,

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ally

m w n C ~ U M ~ of c

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con-

hae dew

' Linehan vl Wrttorhnt Cammi~cioa

ing

t i

three.jud8e ~ ~ S Mcourt exCC

court 174 Ad*optnianslBl Claw actton statContempt p-mg,
c

184 178

,

.

th-judp

court

ju~iaon of

SUBSTANTIAL CHANGE OF
Wis.App. 1992. The term "substantial change of circumstances," for purposes of modification of custody order afte3 two years has passed since initial order, requires tEat facts on which prior order was based differ from present facts, and that the difference is enough to justify court's considering whether to modify the order.-Licary v. Licary, 484 N.W.2d 371, 168 Wis.2d 686, review denied 490 N.W.2d 21.--Child C 555.
SUBSTANTIAL CHANGE OF CONDITIONS WashApp. Div. 1 1984. Where at time of original separation and first modification of agreement it appeared that one child would not become qualified for college education and other child was 11 years of age but subsequently each had excelled academically and were candidates for post high school education and where both parents were college educated, there were "compelling circumstances arising before emancipation" and a showing of "substantial change of conditions" warranting modification of marital dissolution decree. West's RCWA 26.09.010 et seq., 26.09.170.-Matter of Mamage of Studebaker, 677 P.2d 789, 36 Wash. App. 815.--Child S 240, 304. SUBSTANTIAL CHANGE OR ALTERATION C.A.7 (Ind.) 1995. "Substantial change or alteration," which will preclude manufacturer's strict liability under Indiana law, is any change that increases likelihood of malfunction, which is proximate cause of harm complained of, and which is independent of expected and intended(use to which product is put. IC 33-1-1.5-3 (1993 Ed.)--Leon v. Caterpillar Indus., Inc., 69 F.3d 1326, amended, and amended.-Prod Liab 15,16. SUBSTANTIAL CLAIM

40A W ? &-

Q A W&P-

531

tial change of position is sufficient to create person seeking permit.-People ex rel. S k E Co. v. Town of Cicero, 298 N.E.2d 9, 11 900.-Zoning 376.

3#).-Pub

Ut 194.:

1

Kan. 1974. "Sd

d e n c e which p~ ad relevant c o d

9% P.2d 369, 26 B

ably resolved.-

Work Comp 1939.4 815, affirmed 317 F.2d 679.-Fed
Cts 1 8

1nd.App. 4Dist. 1994. For purposes of strict product liability claim, "substantial change or alteration" is defined as any change which increases likelihood of malfunction, which is proximate cause of h a m complained of, and which is independent of expected and intended use to which product is put. West's A.I.C. 33-1-1.5-3, 33- 1-1.54@)(3).Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932.Prod Liab 16.
SUBSTANTIAL CHANGES Cal. 1986. An increase from six to ten acres in size of proposed theater in fairgrounds area, 200% increase in seating capacity, and acoustic effects of moving stage to face single-family dwellings north of fairgrounds were "substantial changes" requiring filing of subsequent environmental impact report to assess environmental effects. West's Ann.Cal.Pub. Res.Code 5 21166(a).-Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., 727 P.2d 1029, 231 Cal.Rptr. 748,42 Cal.3d 929, rehearing denied.-Environ Law 597.

SUBSTANTIAL COCAINE DEALER

SUBSTANTIAL, COMPETENT E I V -

which possesses both relevance and which furnishes a substantial basis d W

accept as being sufficient to support a Law 1158(4).

Ill.App. 1 Dist. 1973. Expenditure of $1,300 to terminate lease on a sign and preparation of plot plans and profitability studies for gas station on property in zoning district, in which subsequent amendment to zoning ordinance made a gas station a "special use" rather than a "permitted use," were not "substantial changes" within rule that substan-

court's review of 1 judgment is limite there is substantid trial court's holdh dence" is evideaq stance and r e l m substantial basis 4 oonably be resdsa Matter of Man-& Kan.App.2d 964.4 KanApp. 1 9 8 ~

Kan. 1982. "Substantial co
orders of the Corporation Commission & k to requested natural gas price increavs dence which possesses something of

dence" is defined a

of substance and r
can reasonably Estate, 604 P.2.d 74

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~ts,.bemade whole by . ~ o M i n g , debt a m that liable amo,, gmd maow, should be required to pay.-Union Mut. Fire Ins. a. Joerg, 82~.~2d586,,2003 27,Subrog V. VT 2, , . . ,, , . , -si~'~plnt VG .2&f f,+6Suhogations':is, h .&. bed% m t i t u t i o n of OnePam in.th*~laceof " ~ o f i e uithreferenscm a l a m c l a h d c m n 4 r y , , 5 9 J,- , o r , right. so,, @at ,thecpprty ,that 4s .substituted 4 .JN.C.App; 2004. The tem~r''&bK4@0d,': in succeeds to the7;rigbts. of the ~rthep-Yellow the Insuraae Guaranily Associayfon (IGA) statute ' Freight Systems, Tnc. v. Courtadds PM~rplance ddrfing 'fcovered c+m" to ~ d u d e ( q b r o g a t i o,'Films, Inc., 580'S.E.2d 812, 266 Vd. g?.4ubrog ' " c,lai$ls #& hot encompq equitablg~ubrogation. - . - ' -1 1' i . '- * .w&*'Nc,G,~A P.s+r2p'r2p'~7;;JO~ A)dennL& * ( ; - ,Gle,.!'.k.' ' s i i ?- , & 't. ~~a f w G ~; ~ ~589.~. s g~ B R ~ iy.'!::?~ ':A! ~I.!< ~ ~ o a ~ ~ ~ @ , J$.k-Y , S&Zd:9084 review denied a595 S E 2 151,'358 # > , ~ N . Y , , ..4 s. &Irh8tilpur~~~i!@t.-~nsn~anat:1497. , , I .,,I, , m to~its;&&neat, Mth ctuise %ip:oper.at&r, t + *., . , , , , , ,.>$ > . q , ::.I\ . ! I ~ , I " ~ $ 2 z, , ~spon61'bility ay reimbonl .N.b. 4~~ubtOgat;on . g ~ red had a$smeii.ult~ate g ',h-m@ ody anilablc,m se the u l t i m dish~ ot , w I I S ~who ~did,&it.le tC ~ , or ~ ~ ~ in ~ ~ ~6 ~ i e ~ ~ i.v es a s ~for which. they d pepaid, and ~ hm ; . bad ~ sltn lhat w s legallp obligated to honor %haagebricks a &rice, &@t4tci,f3ay thatdebt.-en Mu6 from did not Reinsurahce Co.\.v. Centet' Mu~J~u~.' : 658 angy positio, of ,,ksjnre', a, ' ' dt'jhfOmed 'r ' N.W.2d 369;iZM)#W50.4tii~g'1. , ' '" 4 ~ % ?I'-,!,J, .- . , . 7::rk'$l - i.: , ' claims, 'but W{S ,me&?; "dubfog@: :WtI1' ivhile ' ship ~ , ~ ~ . a' f S u b ~ ~ v an,*l&m~ subtogated t 6 ~ m e r s fights ,a&&t'i%dse . t , , i s operator; w odt submgated to thiir 'barb-level w&h{ masa.a .a@m*,;&ms. for . .parties h pwe-the ultimate dischargic..of adgbt ' pdori9 PP+OP b ,cruise ship ;,W@@r's badby the pewn +do, in equity arid g d w e n c e , Nptcy , , , ~ e . , lBankr.C%dq 1 , U,S.C.A. 1 7 bughY~twpay for ittiAmerican Nat,~pjre&ts.,@. 5 507(a)@),. (&.+h.re,fiemi ?&cration~, 294 v. Hugh& 6% N.Vf.U 330,20@3 , 4 3 . e b r 3 B-R. 28% ?%, 1, , .I . , ; . .:-,* t . < . . , d ? . I\.,' ,; 1hhssho.Ct. UW)3.' 4"sthbrbgatiani' %? &6@ii

v. ~,,N.wB -181j.h U2.-4ubrog 1, 33(2)1 i . .

N~Y.A,D.,~ h~~~~ i ' ti s 3~ubrboge j d e r $to iq!;luitable doctrine whichrxdlallows stand 10 the shoes vf & inswed Co'seek iqddmo$ cation from third patties ,Whose wrongdoing as caused a loss for which €he insurer i bound to s w ~ t , ~ r s e . + , ,nef-mel ,~ .or Hemp stead v. Resour&! R&@n$, Inc., '763 'W.Y.S.a 657,30i AD.^ 939.11nau& $513@). ,,
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* a @ WD. 2003. Biidbnca 8ujipon&gj i n M.. ageny decisioti !is"mbstantid" if it supports the, matter at issue-Win$ Point Partners, W C . v. Boone Countv ex rel. Bocme CounN Com'n, 10a-I . S.WM 821, khearin&-'traasfer dehied (60669);l ahd t r a d s f e r . d t n i e d . - ! ! Law 7 1 . 1 . 9, 7

a'! j penalty fot having in passession the w* JOr an$, I substantial part. o parts d game animefs m~m-1' r tioned therein, is so vague as to.be unconsti@'' tional in that it fails to &@re @a word^"^^^^ ' td". esueciaklv so where the rdcord fa& to $ h i, ~

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