N.D. Ala. Notes Split Re Test For Determining Whether Matter was Prepared in Anticipation of Litigaiton

Per Regions Financial Corp. v. U.S., Slip Copy, 2008 WL 2139008 (N.D. Ala. May 08, 2008):

Courts have wrestled with the articulation of a clear test for interpreting what constitutes “prepared in anticipation of litigation” in the context of an IRS summons. The Supreme Court has not provided a controlling standard, and a split has developed between the various courts of appeal. The Fifth Circuit has articulated the “primary motivating purpose” test. United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982) (“ ‘Litigation need not be imminent ... as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation’ ”) (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir.1981)). This test contrasts with the “because of litigation” test articulated by the Second Circuit in U.S. v. Aldman, 134 F.3d 1194 (2nd Cir.1998). The Second Circuit test affords broader protection than the “primary motivating purpose” test. Quoting from Wright & Miller, the Aldman opinion stated the test this way: “ ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” Aldman, 134 F.3d at 1202 (quoting Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024 (1994)).

Fifth Circuit Notes Split Re Whether S. 253 of FTA Creates Privately Enforceable Right

Per Southwestern Bell Telephone, LP v. City Of Houston, --- F.3d ----, 2008 WL 2102283 (5th Cir. May 20, 2008):

Section 253(a) of the Federal Telecommunications Act of 1996 (FTA) provides: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service”. 47 U.S.C. § 253(a). . . .

Five circuits are split three to two on whether FTA § 253 creates a privately enforceable right. The Sixth and Eleventh Circuits hold it does. BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1191 (11th Cir.2001); TCG Detroit v. City of Dearborn, 206 F.3d 618, 624 (6th Cir.2000). (Although obviously not determinative for deciding whether a privately enforceable right is created, neither decision incorporated § 1983.) Those two decisions, however, were rendered prior to the Supreme Court's above-described clarification in Gonzaga [Univ. v. Doe, 536 U.S. 273, 283 (2002)].

As discussed infra, the more persuasive reasoning is found in the Second, Ninth, and Tenth Circuits' holding, post-Gonzaga, that FTA § 253(a) does not create a private right enforceable under § 1983. NextG Networks of NY, Inc. v. City of New York, 513 F.3d 49, 52-54 (2d Cir.2008) (agreeing with Ninth and Tenth Circuits that “ § 253 does not create a private right of action for damages” that may be enforced through § 1983); Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700, 717-18 (9th Cir.2007) (stating “ § 253(a) does not designate companies like [AT & T] as the ‘identifiable class' required for an enforceable § 1983 right”); Qwest Corp. v. City of Santa Fe, N.M., 380 F.3d 1258, 1265 (10th Cir.2004) (ruling “nothing in the text or structure of § 253 indicates an intention to create a private right” that may be enforced through § 1983). These three decisions are consistent with our court's requiring, as discussed supra, the federal statute to “ unambiguously give rise to privately enforceable, substantive rights”. Johnson, 442 F.3d at 359 (emphasis in original) (footnote omitted).

S.D.N.Y. Notes Split Re Standard for Evaluating the Validity of Facially Discriminatory State Statutes under FHA

Per Sierra v. City of New York, --- F.Supp.2d ----, 2008 WL 2036834 (S.D.N.Y. May 13, 2008):

The Second Circuit has not yet ruled on the appropriate standard for evaluating the validity of state statutes that are facially discriminatory under the FHA, and the Courts of Appeals that have considered the question are divided. The Eighth Circuit has subjected such statutes to “rational basis” scrutiny. See Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir.1996); Familystyle of St. Paul, Inc. v. City of St. Paul, Minn., 923 F.2d 91, 94 (8th Cir.1991). The Sixth, Ninth, and Tenth Circuits, by contrast, have applied more searching scrutiny. For example, the Ninth Circuit has held that facially discriminatory restrictions pass muster under the FHA only if the defendant shows either “(1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1050 (9th Cir.2007); see also Larkin v. State of Mich. Dept. of Soc. Servs., 89 F.3d 285, 290 (6th Cir.1996); Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir.1995).

E.D. Wis. Notes Split Re Application of Drug Trafficking Offense Statute

Per U.S. v. Colla, Slip Copy, 2008 WL 1969600 (E.D. Wis. May 3, 2008):

The evidence is surely sufficient to create a reasonable belief that defendant violated 21 U.S.C. § 843(b), use of a telephone to facilitate a drug trafficking offense. The Seventh Circuit has held that simply calling a drug dealer to obtain drugs for one's own personal use is sufficient to sustain a conviction under this statute. See United States v. Kozinski, 16 F.3d 795, 807 (7th Cir.1994); United States v. Binkley, 903 F.2d 1130, 1135-36 (7th Cir.1990).^FN2

FN2. There is a circuit split on this issue, see United States v. Abuelhawa, No. 07-4639, 2008 WL 1837358, at *4 (4th Cir. Apr. 25, 2008), but I must follow the Seventh Circuit's view.

M.D. Fla. Notes Split Re Burden of Proving Waiver of Jury Trial Right Was Knowing and Voluntary

Per Winiarski v. Brown & Brown, Inc., Slip Copy, 2008 WL 1930484 (M.D. Fla. May 01, 2008):

A party may validly waive its Seventh Amendment right to a jury trial so long as the waiver is knowing and voluntary. . .

Plaintiff suggests that the burden is upon the Defendant to prove that the waiver was knowing and voluntary. Although the circuits are split as to which party has the burden of proving whether a contractual jury trial waiver was knowing and voluntary--and the Eleventh Circuit has not spoken on the issue of which party has the burden--the Court need not decide who is put to the task of carrying the burden because there is more than sufficient information to demonstrate that Plaintiff waived her right to jury trial knowingly, voluntarily, and intelligently.

E.D.N.Y. Notes Split Re Whether Motions to Amend Are Dispositive or Nondispositive

Per Wilson v. City of New York, Slip Copy, 2008 WL 1909212 (E.D.N.Y. Apr. 30, 2008):

Courts in this Circuit are divided on the issue of whether, and under what circumstances, motions to amend a pleading are dispositive or nondispositive. The Second Circuit has not yet ruled on the issue, see Children First Found., Inc. v. Martinez, No. 1:04-CV-0927 (NPM), 2007 WL 4618524, at *4 (N.D.N.Y Dec. 27, 2007) (citing Rubin v. Valicenti Advisory Servs., 471 F.Supp.2d 329, 333 (W.D.N.Y.2007)), but has stated in dictum and in an unpublished opinion that motions to amend are nondispositive and has suggested that the procedures of Rule 72(a) invariably apply. See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.2007) (indicating that a motion to amend the complaint is “nondispositive” and governed by Fed.R.Civ.P. 72(a)); Kilcullen v. New York State Dep't of Transp., 55 Fed. Appx. 583, 584 (2d. Cir.2003) (analyzing a magistrate judge's decision to deny a Rule 15(a) motion to add a claim to the complaint under the Rule 72(a) standard). In addition, several district courts, opining that “the weight of authority” within this Circuit classifies a motion to amend a pleading as nondispositive, have automatically applied Rule 72(a) standards to motions to amend, even in cases where the magistrate judge's decision on the motions foreclosed a party from asserting potential claims. See, e.g., Lyondell-Citgo Refining, L.P. v. Petroleos de Venezuela, S.A., No. 02 Civ. 0795(CBM), 2005 WL 883485, at *3 (S.D.N.Y. Apr. 14, 2005); Credit Suisse First Boston LLC v. Couer D'Alene Mines Corp., No. 03 Civ. 9547(PKL)(MHD), 2005 WL 323714, at *3 (S.D.N.Y. Feb. 10, 2005).

Other district courts have held that a Rule 15(a) motion is dispositive where the magistrate judge's denial of the motion foreclosed potential claims. See, e.g., Covington v. Kid, No. 94 Civ. 4234(WHP), 1999 WL 9835, at *2 (S.D.N.Y. Jan. 7, 1999); Champion Titanium Horseshoe, Inc. v. Wyman-Gordon Inv. Castings, Inc., 925 F.Supp. 188, 189-90 (S.D.N.Y.1996); Moss v. Stinnes Corp., No. 92 Civ. 3788(JFK), 1995 WL 625685, at *1 (S.D.N.Y. Oct. 25, 1995). Some of these courts have specifically held “that a denial of a motion to amend is dispositive where the denial is based on futility because such a motion is analyzed under the same standard as a motion to dismiss for failure to state a claim or a motion for summary judgment, both of which are dispositive motions.” Children First Found., 2007 WL 4618524, at *4 (citing HHC, Inc. v. RH & M Mach. Co., 39 F.Supp.2d 317, 321 (S.D.N.Y.1999)).

Although this Court is persuaded that the latter group of cases is better reasoned, this Court need not decide which of group of district court is correct.

Sixth Circuit Notes Split Re Existence of Mens Rea Requirement for Sentencing under 18 U.S.C. § 942(c)(1)(A)

Per U.S. v. Nelson, Slip Copy, 2008 WL 1836732 (6th Cir. Apr. 24, 2008):

The statute in question provides that “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm ... shall, in addition to the punishment provided for such crime ... (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” 18 U.S.C. § 942(c)(1)(A). The defendant now contends that because the gun he was admittedly “brandishing” during the attempted robbery was discharged inadvertently-a fact that the government was willing to concede at Nelson's guilty plea hearing-the record fails to establish the requisite mens rea for a mandatory-minimum sentence of 10 years under subsection (iii). Instead, he insists, he should have been sentenced under subsection (ii) of the statute.

In support of this argument, Nelson relies on two recent cases in which sister circuits have found that general intent, at least, is necessary to support sentencing under subsection (iii). Both the D.C. Circuit and the Ninth Circuit consider “an intent requirement [to be] implicit in the discharge provision.” United States v. Brown, 449 F.3d 154, 155 (D.C.Cir.2006) (the subsections “penalize increasingly culpable or harmful conduct” and because subsections (i) and (ii) both require intent, reading a mens rea requirement into the third subsection's “discharge provision would be consistent with this progression”); see also United States v. Dare, 425 F.3d 634, 641 n. 3 (9th Cir.2005) (noting, without analysis, that “discharge” requires a general intent). On the other hand, two other circuit courts have reached the opposite conclusion, creating a circuit split. See United States v. Dean, ---F.3d ----, No. 06-14918, 2008 WL 441602, at *5 (11th Cir. Feb. 20, 2008) (rejecting Brown's progression analysis); United States v. Nava-Sotelo, 354 F.3d 1202, 1204-05 (10th Cir.2003) (under the plain language of subsection (iii), a 10-year minimum sentence is mandatory even if the discharge was accidental or involuntary). In finding that proof of mens rea is not required under subsection (iii), the Tenth and Eleventh Circuits focused on a Supreme Court decision, Harris v. United States, 536 U.S. 545 (2002), in which the Court held that section 924(c)'s brandishing and discharge provisions are “sentencing factors to found by the judge, not offense elements to be found by the jury.” Id. at 556. Those two courts have concluded that “[a]s a result, no mens rea is required.” Nava-Sotelo, 354 F.3d at 1206; see also Dean, 2008 WL 441602, at *4 (subsection (iii) “is a sentence enhancement and merely reflects factors that will enhance sentencing, not elements of an offense”).

The mens rea issue is one on which the Sixth Circuit has not taken a position. It is not one on which we are in a position to rule in this case . . . .