DocketNumber: 14-2891
Filed Date: 4/1/2015
Status: Non-Precedential
Modified Date: 4/18/2021
14‐2891 Plante v. Dake UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of April, two thousand fifteen. PRESENT: ROBERT D. SACK, CHRISTOPHER F. DRONEY, Circuit Judges1 1 Judge Chester J. Straub, originally assigned to the panel, recused himself from this case shortly before oral argument. The two remaining members of the panel, who are in agreement, have determined the matter in accordance with Second Circuit Internal Operating Procedure E(b). See 28 U.S.C. § 46(d); cf. United States v. Desimone, 140 F.3d 457, 458 (2d Cir. 1998). 1 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ JOAN PATRICIA PLANTE, Plaintiff‐Appellant, ‐ v ‐ No. 14‐2891 GARY DAKE, President, The Stewartʹs Shops Corp.; et al. Defendants‐Appellees. ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ For Appellant: Joan Patricia Plante, Pro Se For Appellees: John Frances Moore Towne, Ryan & Partners, P.C. 450 New Karner Road P.O. Box 15072 Albany, NY 12212 Appeal from the Northern District of New York (Thomas J. McAvoy, Judge). Plante has made a motion in this Court for an order which, in effect, grants her summary reversal of the district courtʹs order dismissing her complaints. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the motion is DENIED. Under the Federal Rules of Appellate Procedure, ʺ[o]n its own or a partyʹs motion, a court of appeals may — in order to expedite its decision or for other good cause — suspend any provision of these rules in a particular case and order 2 proceedings as it directs.ʺ Fed. R. App. P. 2. ʺUnder the aegis of Rule 2, circuit courts have summarily disposed of appeals using similar but not always identical language.ʺ Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) (citing cases from the Federal, 1st, 5th, 7th, 8th, and 10th Circuits outlining the varied language with which our sister courts have summarily affirmed and reversed decisions on appeal). In this Circuit, ʺ[s]ummary affirmance of a district courtʹs decision in place of full merits briefing and, at the discretion of the court, argument is, and should be treated as, a rare exception to the completion of the appeal process. It is a short‐cut and, in light of the liberty and property rights involved, one that is available only if an appeal is truly ʹfrivolous.ʹʺ United States v. Davis, 598 F.3d 10, 13‐14 (2d Cir. 2010) (citing United States v. James, 280 F.3d 206, 209 (2d Cir. 2002) (ʺ[I]f the Government believes an appeal, as ultimately briefed, is frivolous, it is entitled to seek summary affirmance, see 2d Cir. R. 27(b), or even sanctions, see Fed. R. App. P. 38ʺ)). While we have thus recognized the occasional propriety of summary affirmance, so far as we have been able to determine, we have not employed a procedure equivalent to a summary reversal, as requested in the motion before us. Even if there we did, however, this case would be a poor candidate for its use. There appears to be disagreement between the Circuits as to a central issue in this case — whether individuals may bring private suits against tortfeasors under the Medicare Secondary Payer Act. Therefore, this issue is clearly worthy of consideration by a merits panel in the course of a full appeal. For the foregoing reasons, we hereby DENY the motion by the Appellant for what we construe as summary reversal. FOR THE COURT: CATHERINE OʹHAGAN WOLFE, CLERK 3