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,

-against- 1:04-CV-1193
(LEK/RFT)
THOMAS SPARGO, individually and as Justice of
the NYS Supreme Court, et al.,

Defendants.

ORDER

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

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

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

and Assembly previously named therein as John and/or Jane 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

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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

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 Case 1:04-cv-01193-LEK-RFT Document 109 Filed 07/31/08 Page 5 of 7

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

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

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

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

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

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

unconstitutional is wholly insubstantial, legally speaking nonexistent.”)

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

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

relate to redistricting or apportionment.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

1
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.
2
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 Bottom-
up 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.

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 Case 1:04-cv-01193-LEK-RFT Document 109 Filed 07/31/08 Page 6 of 7

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

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

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 ST AT E C O U N S EL D IVISIO N
Attorney G eneral Litigation Bureau

Writer Direct: (518) 474-2913

Fax: (518) 473-1572

August 18, 2008

Hon. Lawrence E. Kahn via CM/ECF

United States District Judge
James T. Foley Courthouse
445 Broadway, Room 424
Albany, NY 12207-2926

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

04-CV-1193 (LEK/RFT)

Dear Judge Kahn:

Please accept this letter brief on behalf of the State Defendants in response to and 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 Ž Fax (518) 473-1572

* NOT FOR SERVICE OF PAPERS
 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 (via First Class Mail per attached Declaration of Service);
All Counsel (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 Ronald E. Sacoff

593 Vanderbilt Avenue 84 Boylan Street
Apt # 281 Staten Island, NY 10312
Brooklyn, NY 11238
Gabriel Rassano
Ronald G. Loeber 135 Gordon Place
2130 Berne Altamont Road Freeport, NY 11520
Altamont, NY 12009
Edward M. Person, Jr.
William E. Bombard 392 Saldane Avenue
P.O. Box 882 North Babylon, NY 11703
Glens Falls, NY 12801
The Ad Hoc NYS Citizens for Constitutional
William A. Gage Legislative Redistricting
10 Greenfield Lane 351 North Road
Hampton, NY 12837 Hurley, NY 12443

John Forjone Burr V. Deitz

P.O. Box 28 444 Whitehall Road
Clarendon, NY 14429 Albany, NY 12208

H. William Van Allen Roy-Pierre Detiege-Cormier

351 North Road 25 Hattie Jones Circle
Hurley, NY 12443 Brooklyn, NY 11213

Fairlene G. Rabenda
8 Claudia Lane
Poughkeepsie, NY 12603
 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: Docket # 109, 110

Interlocutory Appeal: Docket #
Other: Docket #

FEE STATUS: Paid Due X Waived (IFP/CJA)

IFP revoked Application Attached IFP pending before USDJ

COUNSEL: CJA RETAINED PRO SE X

TIME STATUS: Timely X Out of Time

MOTION FOR EXTENSION OF TIME: Granted Denied

CERTIFICATE OF APPEALABILITY: Granted Denied N/A

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

RONALD G. LOEBER, et al.,

Plaintiffs,

-against- 1:04-CV-1193
(LEK/RFT)
THOMAS SPARGO, individually and as Justice of
the NYS Supreme Court, et al.,

Defendants.

ORDER

Presently before the Court is a 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. 9:04-

CV-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

1
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.
2
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
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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 Case 1:04-cv-01193-LEK-RFT Document 122 Filed 09/11/2008 Page 1 of 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

AMENDED
Ronald G. Loeber, et al. CLERK’S CERTIFICATION

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

CCA No:
Thomas J. Spargo, et al.

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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 WS9 2283 28 3,2284
Note 493

Act (ECOA) and implementing regula- I ,

tions by requiring her to guaranty loan to AND STATUTORY NOTES
H~~TORICAL

' .*
3 2284;' -judge court; when r e q u i ~composition; p ms only the composi-
cedure of the.judge district
\
(a) A.district court of three judges shall be convened when ot heard and deter-

required by Act of Congress, or when an action is 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 is5 ZN~UNCTI~S L, 28 § 2284
peol
m r
y,judgmea&,
ble, appellate review 223
h n i d of request for gle-judge court 132
dkmissal of action,
nations of single-judge court 126 ~njunctions, jurisdiction of t h r e ~ - j ~ d
hscretion of court 9 court, duties and determinationr
DirmLssal of action, duties and deteimi-
nations of single-judge court 124133
2 -fudge court 179
Insubstaatial 'Iaim, dismissal '
rr Generally 124 duties and determinations of 8
Denial of request for b f u d p Interlocutory
fudgecourt orders,
129 appellate mV
court 126
Hearing 127 - '
Insubstantial dim i29
Jurisdiction lacking ' 130
Miscellaneous actions
132
133
Moot questions 128 ure of court 7
Partdolnder 131
Time of determinationb' 1.25
+

Dbmissal of action, duties and determi-

nations of three-judge court 182 Refusal to convene three-judp
Dismissal of qction, issues reviewable, 221
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 58
.Icourt 186 Jurisdiction, duties and detennl
Dissolution of h f u d g e courtp issues of singlejudge a m 130, 140. dges sight! order or de- Temporary restrainingorders, duties and
, revfewable, appellate review 220 Generally 140 determinations of single-judge court
Duties and determinations of single- Dismissal of action 130 135
, judge court 121-170
Duties and determinations of s w l e

Thnecourtconvenes 14

Contempt prooeedlng 171

Inappropriately canvend .
Independent determinatton I 7
Injunctions 179
1

three-fudge court 183

Validity of proceedings by improadently
is- convened court, duties and determina-
21 tions of three-fudge court 187
Voting Rights Act, actions requiring
datarmlnatlonr sf . deter-
143
&judge
Waiver 23
court 95
2rl'lB 'i ,
~ndrpenclentdetermination, jurirdictlon I I Z ,
tiaranddatar M , , , - I,
I,,4 2284 PARTICULAR .PROCEEDINGS part I 28 :42284
'Note 9
r,,, \>,-I.# G E N E M Y
,%

Subdivision Index ,

hl~fcircuit fudge 11

Civil Procedure

conerally 6 -
1 Wtutory nantk of court- 7

I, r ' t -

ctional nature of d o n ' .

 28 :9 2284 PARTICULAR .PROCEEDINGS Part16 *:42284
Note I9
, .,,., , . ', li, QENERAi-Ly See, ,@, Ritts v. Knowles, D.C.Wtn,10 6. N a W o f m a d l y '
I 339 F.SUPP. 1183, affumed 478 r A threk-judge c h f i 'is L ~ Ma'
I , Subdivision I d c ~ . 1405; Pervis V. LaMarque Independ diffdientcourt from h e district'&, but
Adthorlty 6t chlef -it j u d b 10 School Dist., D.C.Tex.1971, 328 t.',YU
Burden of proof 17 638, reversed on other grounds 466 1'
Cowlusiveness of determlnn'clorl on other '4 Rakes "' D'C'Va'lY
3 18 F.Supp. 181. Federal Courts C
judgea IS
Concurrent of didtrict judge U&
chief ctrcuit judge 11 . I T .,, " 1

7, -astaMwyna-,&- .
Three-judge district' c a m is stahtc)ry
' Pdure 2 with limited $phere.bf operation,,
Jeh6vah's Witnesses ib Stkte of'wash. v.
Construction w ~ t h1 &ruler 3 991 King Hospi%l unit No. 1
Dlrcretlon of court 9 b~rvikt~],W.D.Wash.1967, 278 F.Supp.
Dlqualiflcatlon of j u d w 19 2. Co-don with' Federal RU~U 488, affirmed 88 Sect. 1260, 390 U.S,
Judicial nature of dete-tion' 8 Civfl ProcedrtiP
Jurlsdlctlonal nature of section 5 598, 20 b ~ d , z d158, rehearing denied 88
F'Supp. 382' Courts
Law of case 21 S.Ct.,l$k, 391 U.S. 961.20 L.$d.Zd 874.
Natureof court 6.7 Federal Courts C- 991 .
Generally 6 8. , Judgdal naturr d&,+itlsuon
Statutory -tun of UXUL 7
$t
In determining whether a complaint a]-
Notlce of hearing of action 16 legeg a case
district he districtfor,a
courtappropriate judge performs
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 r7t '
T h e court convenes 14
time for determinaan 13
Walwr 23
(. / . I

ent of this section is jurisdic- versity of S.C., D.C.S.C.1970, 319

cannot be waived. Noe v. F,Supp. 193. Federal Courts e 1011

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

!,
t , I , . , , t,
(
 4 , ,T'fl'l'..

s$r82284 PARTICULAR PROCEEDINGS Part 6 28: s2284

Note 20 Note 66
by n B n d o n aployees of rail+ enee d Branches -r-WJlace* M.D.Ala'
, w.y,compafiy seebag underlstate law t~ 1967.269 F~SUPP.M6-. Courts 96(1)
wain enforcement of union-shop con-
tract, where on removal to federal court,
,case ;was heard by three-judge 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
$,apportioned was final'j~ldgmentand
wah law of the case In prokeeding bn
by legislator to intervene in the
CaSe, Petuskey v. Rahpton, D . C . U ~
1969, 307 ~ , ~ u p235,
p . reversed on other'
igrounds 43 1 F.2d, 378, certiorari denied
91 s.c~. 882, 401 b.$. 913, 27 t.Ed.2d , I-

819. a c ~ ~ r t 99(6) * ,.
,
, ere s , I

the, United hfu. S U P ~ C ~

court,vacated judgment ,of,threep~udge
;I. ' m ~ s ~ ~ k R ~ nGoOhVi s
I

Subdivision Index
E~~NI~

court and remanded that cause t

the district court for further proceedings+,
where the Supreme Court expressly stat-
ed in its opinion that it indicated no 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
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
1 bound by any,judicial decisions other'
than those of the Unit& States Supreme
Jehovah's Wimesses in ,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 de-
h\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,its
r p p g l , Nab-, NAACP Sts
. 9 I 1 , , 4 ,, , '- , , h3 , 1, A *
28~9
2284 PARTICULAR PROCEEDINGS Part 6 28::§Note
228483
Nets 56
der dismissal of the complaint. Puerto
Rice, 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

83. -Constitutional &ms, eppor- .

tionment. actions requlrtng three-
Jude comi
Question of congressional redistricting
arose under the Constitution of the Unit-
ed States and was an issue of federal

F,Supp.Zd $43, affirmed 332 F.3d 769.

Federal Courts 998
~ l d i m ssf plaintiff seeking to enjoin
 .

28""S2284 Z%(t2284
Noh .a3 Noto 80

msntarives to be apportioned among sev-

eral.states according to their respective ck,F.D.Pa.1980,503 F.Supp. 657. Anderson, D.C.Kan.1964, 229 F.Supp.
nwbers, failure to do so could result in Courts 991 271. United States CZJ 10
deprivation of right to select representa- A three-judge district court had juris-
Hves in violation of U.S.C.A. Const. Art. 1 diction of subject matter of an action
seeking congressional redistricting. Ma-
ment, actions requlrlng t ryland Citizens Committee for Fair Con-
gressional Redistricting, Inc. v. Tawes,
D.C.Md.1964, 226 F.Supp. 80. Federal
Courts e=226

n challenging constitutionality of
28 1% 2284 PARTICULAR PROCEEDIUGS Part 6 h 155 INJUNCTIONS .* . ', Ls 2819 2284
NOt.I8@ Note.95
18&.Edr2d M3, on remand 271 FSupp. Where the North Dakota egisl la tub
,497, . Federal Courts 477; Federal had failed to reapportion itself, in order
Count4 e 9 9 7 to correct inequality of representation,
., 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'"
-.
the' other gene& M of 1 4
cornpb with the
concept.
'lone

v' Meier* D'C'NoP

, 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.
C6uts m 997
- Miscellaneous c a m not
qriirlng three-judge court, appbw
*
Case involving alleged hC-atory tlonment, actions requjrfng t h d

,+.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 adjudica-
tion by three-judge district court even
though constitutionality of 9 De1.C.
9, b165 establishing boundaries of coun-
cilpanic .districts was involved. Keil V.
S&orr,.D.C.Del.l968, 282 F.Supp. 608.
Federal ,Courts 1000
'~ActiolIfor c d ~ t i o nbf malapportion-
of County Supervisors' districts was
not one,directed against state statute, SO
as to invoke jurisdiction of three-judge 1979, 601 F.2d 859. Federal Courts
district court, where statute involved did
w t delineate district boundaries and
plaintiffs did not seek injunction against
operation of statute but sought interfer-
ence with local legislation. Dyer v. Rich,
N.D.Miss.1966, 259 F.Supp. 736. Feder-
al Courts @ 997
90.
-
-MiseeUme~us
*judge
requiring
court, apportionment,
actlons reqdring three-judge court

'. .
L &lAsll . ') Y'T_
 --,-.-"70-, 7-7

28.32284
Note 123

~ ~ f ~ti&.&&t~~ b bp&ll@ ' to' 132 tions of single-judge coutt

p o r t i o m t of parish schoo1,board For purpose of determining
&$ :mnacl were insubskintialp three-judge district court, allegations'of
rince no adequate sdbmission had been complaint must be deemed to be true.
tb Attorney -General of any of .
dhanges made and Attohey General re-
to defendants' purported submi*
S~QW :within 60-day reply period, and
thugla &=-judge court was not required
be convened under Voting Rights Act
d ' ~ 9 6 5 . Broussard v. Perez, E.D.La. m, d i ~ m i df dl
ip?6,416 ~.Supp.584, affirmed 572 F.2d
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 No-
vember 15 1968 for ,appointment ofa1 -
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 de-
wmfned by court of.three judges. Beat-
Q,V. Esposito, E.D.N.Y.1976, 41 1 F . S ~ P P ~
107, supplemented 439 F.Supp. 830.
Federal Gourts 995 ~eoessityof -jud& 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

I I
# \ I % - I C I,

#, ~ m e AND
s '~~E~INA~ONS
1'1 OP~SINOLEJUDQECOURT '

\ttg,nr3yW9144 I ! . ' ,. ' '. '

:ompl~lnt 113
 h. 155 -INJUNCTIONS . , 28 .,§ 2284
W e 130
mf23
a(tntrto consider Voting Righb Act chal-
129. -
of
dbstantld & & , ? d l s W
end
d o n , duties de-na-
ln& to districting plan; in determining tiom of single-judge court
hether .to convene threejudge court, District judge to whom application for
nele judge . has authority to decide
0

l h e h .the complaint states a substam three-judk district court is addressed

J claim.- Gonzalez v. Monterey County, may dismiss complaint which fails to
da N2D.Ca1.1992, 808 F.Supp. 127. raise substantial federal question. Lin-
dauer v. Oklahoma City Urban Renewd
District court must take allegations, it1 Authority, C.A.10 (Okla.) 1971, 452 F.2d
amplaint a s true for purposes;-of deter- 117. certiorari denied 92 S-Ct. 1293, 405
ilning whether to convene a three-judge U.S. 1017, 31 L.Ed.2d 479, rehearing de.
6uurt; single judge can neither evaluate died 92 S.Ct 1607, 406 U.S. 911, 31
rrrits of claim, nor extend its inquiry L.Ed.2d 823. Federal Courts b 1012
Single judge may dismiss action alleg-
ing violation of preclearance provisions

motion for convening
$ct court on grounds
were insubstantial had
motion to dismiss as to
e only by a three-judge
* 1011
Moot questions, dismissal of
t court would be dis-
Avlnr v. Mangum,
F,Supp. 754. Federal
I " I , 1 304; W,E.B, Duboir Clubs of America v,
,b
~+,&$&~~~;;:
-
cd section 1973c of Title 42.wher-e claims
are wholly insubstantial and completely
without merit. Miller v. Daniels;
S.D.N.Y. 1981, 509 F.Supp. 400. Federal
courts 1012
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, af-
firmed 631 F.2d 287. Federal Courts
1011 , ,
130. - W g , dfsmlsr-
' ~ ~ I l a f c t i o' k
et of action, &tic% and deknnina-
tlom of single-judge court
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 Ser-
vice Commission of Kentucky, D.C.Ky.
19764 420 F.Supp. 376: Jachon v. Asso-
ciated 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; Leon-
hart 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
*i"gg,,,&&J,&&&.:a&&*&*dlt
SS?$ 2284 PARTICULAR PHOCEEIYINGS Part 6 2 8 2284
Hotel$SO Note 138
cluk. D.-J~D;c;~~@,
.285 ~.Supp. 629. LJ-S:75oP 87 L.Ed. 17041
S.et\~lt58.*319
,Fede~dCat& 1012 .' .' courts- 101 2 'G'

. J,,dA do -ii,&ked three- 132. - '~18cellanemm dl*

fidiiti . district kourt determine
wheth& ' jurisdiqtion, &xists in district
bod,' arid if lie properly cotrcludes that
theye is Lo jurisdicti&, ~s power to dis-
bs Co&ppBint,as as 'to deny motion
to convene three-judge tribunal, is not
ci+..umscriw by this =tion. Lion Mfg.
. *duties
T e m m m ~ mMnlng +,
h sin.
and d e t e n n i n a ~ ~of
N.D.Mhs.1991, 776 F.Supp. 1142. Fed-
ad Courts *1011
'carp,V, Kennedy, C.AD.C.1964, 330 I . gle-judge a ~ ~ r t
d 117 u . s . A ~ ~ . D .367.
~ , 2 833, c . ~ederal
Cbutts 1012
,.-
0 . .I J

,*
.,, % ~ n suit ' b ~ + r e q d g An-
-,I,

vetping .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 act to adopt a constitu
~o@der,applicability of hee-judge pan- podo-ent. Mary1
gl or *ether ,action is precluded for
~ q c4~ , b j e c t f p a ~jurisdiction. Safe- f ~ ~ ~ ~ ~ C - ~
N& Zutuual ins. Co. r. Corn. of Pa., @ loo'
2'$&&974, 312 FSupp. 939. .Feded 606'
q i m 1012 , , , 0

,,,
' I

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 re,
which he powers, and if to
he ,+? nnines hatthe lac@ j--
diction, he,must.dismiss suit. . O'Hair
y, ",S,, D,C.D.C.,1968, 281 F.Supp. 815.
Fpderd>Civil Prdcedure 1742(1)-'
I"';, ,\
pI
w' d-
duties and d e t e d n a t b m of
bl""'d*gl+judge court
"
,
!if;, ;ingle judge,
Dgndkning a t h e j u d g 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, &'ejdge to wss
of absence of
Idunction dton
*ndllpensable party is not n d Y , i n -
cbna,stsnt sirnil&. pawer in three-
luy di9t&t & &r it hm
ur unneccsaary particjpatjon f,' two *d-
ditional judges ckould not indidate the
court'r action ih any event, or cut off any
rlpht or privilegeof Osage Tribd
bdlanl v, I&#, D,C.DC.1942, 45
~ , s ~ p 179,
p , aff[rmed 133 F,2d 47$ 77
ua , . 114, cartlo& 63
j . I 492..Y*YL,iii
;B
rszg 2289 PRWEEDINGS
~ART~CULAR Part 6 28'.§ 2284
Note 145
be heard $re- of New York Hntm. Q.D.N.Y.1953, 116
F.Supp. 401. C o w ,101

is 144- Attorney fees, d ~ t i b

a d &th-
nations of alngle-judge CO&

, .In passlhg upon a request for a three-

Judge district- court, SiWle district court
ludge must not make a decision even as
dequacy of claim for equitable relief if
q~eqtionis arguable. Brennan v. Green-
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 ~fformation of a three-judge di.5- Although action was tried before three-
t ~ i c tc b m is required. Police officer^' Judge court, issue of attorney fees could
~ ~ i l dvat.'bnion
,, of Police Officers. AFL- be p r o p d y determined by a single judge.
C I v.~ Washington, D.C.D.C.1973, 369 Mader v. Crowell, M.D.Tem.1981, 506
~ + ~ $ ~ : S ' 4 3Federal
. Courts 991 F.Supp. 484. Federal Courts e 1011
,,district judge to whom petition for em- r45. Qtanding, duties d
e
-
*rneling of three-judge district court is tions of singlejudge
presented has severely limited jurisdic- v. A single judge can consider an issue of
tlon to cofihider merit of factual allega- F. standing convening a three-judge
tione. ' Bistrick v. University of S.C., D. district court when there has been a re-
D,C,S,C.1970, 319 F.Supp. 193- Federal ton v. quest for such a court. American Civil
Court8 * 1011 . Libe*es Union of Md. v. Board of public
~tia nbt ordinarily fLncti Works of State of Md., D.C.Md.1972, 357
F.Supp. 877. Federal Courts 1011

v. DUTIES AND DETERMINATIONS;

OF THREEJUDGE COURT
Subdivision I&
,,,&&criO1l of -Judge
c court 174
Ad*optnianslBl , .
.r ally
11,
Claw actton stat- 184 ,
m k con- hae dew ing ti three.jud8e ~ ~ S Mcourt
C C ex- Contempt p-mg, of
ju~iaon
,.I

m w n C ~ U M ~ of c ' Linehan vl Wrttorhnt Cammi~cioa th-judp court 178

SUBSTANTIAL CHANGE OF 40A W&?- Q A W&P- 531

Wis.App. 1992. The term "substantial change of tial change of position is sufficient to create
circumstances," for purposes of modification of cus- person seeking permit.-People ex rel. S k E
tody order afte3 two years has passed since initial Co. v. Town of Cicero, 298 N.E.2d 9, 11
order, requires tEat facts on which prior order was 900.-Zoning 376.
based differ from present facts, and that the differ-
ence is enough to justify court's considering wheth-
er to modify the order.-Licary v. Licary, 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 origi-
nal separation and first modification of agreement
it appeared that one child would not become quali-
fied for college education and other child was 11 3#).-Pub Ut 194.:
years of age but subsequently each had excelled 1
academically and were candidates for post high Kan. 1974. "Sd
school education and where both parents were col- d e n c e which p~
lege educated, there were "compelling circum- ad relevant c o d
stances 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 alter- SUBSTANTIAL CLAIM
ation," which will preclude manufacturer's strict
liability under Indiana law, is any change that in-
creases likelihood of malfunction, which is proxi- ably resolved.-
mate cause of harm complained of, and which is 9% P.2d 369, 26 B
independent of expected and intended(use to which Work Comp 1939.4
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. 815, affirmed 317 F.2d 679.-Fed Cts 18
1nd.App. 4Dist. 1994. For purposes of strict SUBSTANTIAL COCAINE DEALER
product liability claim, "substantial change or alter-
ation" 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% SUBSTANTIAL, COMPETENT EVI-
increase in seating capacity, and acoustic effects of court's review of 1
moving stage to face single-family dwellings north judgment is limite
of fairgrounds were "substantial changes" requiring there is substantid
filing of subsequent environmental impact report to which possesses both relevance and trial court's holdh
assess environmental effects. West's Ann.Cal.Pub. which furnishes a substantial basis d W dence" is evideaq
Res.Code 5 21166(a).-Concerned Citizens of Cos- stance and r e l m
ta Mesa, Inc. v. 32nd Dist. Agricultural Assn., 727 substantial basis 4
P.2d 1029, 231 Cal.Rptr. 748,42 Cal.3d 929, rehear- oonably be resdsa
ing denied.-Environ Law 597. accept as being sufficient to support a Matter of Man-&
Kan.App.2d 964.4
Ill.App. 1 Dist. 1973. Expenditure of $1,300 to Law 1158(4). KanApp. 1 9 8 ~
terminate lease on a sign and preparation of plot
plans and profitability studies for gas station on Kan. 1982. "Substantial co- dence" is defined a
property in zoning district, in which subsequent of substance and r
amendment to zoning ordinance made a gas station orders of the Corporation Commission &k
a "special use" rather than a "permitted use," were to requested natural gas price increavs can reasonably
not "substantial changes" within rule that substan- dence which possesses something of Estate, 604 P.2.d 74
I' W-qpmF" .! ; , ' ,;I '

hnr v. ~,,N.wB -181j.h yd*. . ~ v t r h ~ ~ : ~ ~ u ~ a ~ ~ r ~ w w ~ ~ d

U2.-4ubrog 1, 33(2)1 i . . $ 5 iiable parqr who has k e n compelled to pay d&H
5. .
~ts,.bemade whole by . ~ o M i n gthat , debt a m
N~Y.A,D.,~ h~~~~ DL~~. I '!i
3 ~ u b r b o g e i ' ti s
j d e r $to
t~ marw
liable amo,, gmd maow,
iq!;luitable doctrine whichrxdlallows should be required to pay.-Union Mut. Fire Ins.
stand 10 the shoes vf & inswed Co'seek iqddmo$ a.V. Joerg, 82~.~2d586,,2003 VT 27,Subrog
cation from third patties ,Whose wrongdoing as 2, - .
caused a loss for which €he insurer is bound to . ,
r
, . , - ,, i

w ~ t , ~ r s e . + , ,nef-mel
,~ a.
.or Hemp VG .2&f f,+6Suhogations':is, h .&.si~'~plnt
bed% m t i t u t i o n of OnePam in.th*~laceof
stead v. Resour&! R&@n$, Inc., '763 'W.Y.S.a
657,30i AD.^ 939.11nau&
I )
$513@). ,,
y , , 5 9 J,- ,
.
" ~ o f i e uithreferenscm
r a l a m clah dcmn4
o r , right. so,, @at ,thecpprty ,that 4s .substituted
4 .JN.C.App;2004. The tem~r''&bK4@0d,': in succeeds to the7;rigbts. of the ~rthep-Yellow
the Insuraae Guaranily Associayfon (IGA) statute ' Freight Systems, Tnc. v. Courtadds PM~rplance
ddrfing 'fcovered c+m" to ~ d u d e ( q b r o g a t i o,'Films, Inc., 580'S.E.2d 812, 266 Vd. g?.4ubrog
c,lai$ls #& hot encompq equitablg~ubrogation. -1.' - ' -1 i
'
. " 3

'- *
A

.w&*'Nc,G,~A P.s+r2p'r2p'~7;;JO~ A)dennL& * ( ; - ,Gle,.!'.k.' ' s i i ?- ,

& 't. ~~a ~afow G ~; ~ ~589. ~ ~. s g~ B~ R ~ iy.'!::? ~ @ ~ ':A! ~I.!< ~
, J$.k-Y , .
S&Zd:9084 review denied a595 S.E.24 151,'358 # >s ,. ~ N . Y , , &Irh8tilpur-
' *- ~~~i!@t.-~nsn~anat:1497. , , I
+. *.,
-
, , , , , ,.>$ > . qz,, ::.I\ . ! I ~ , I " ~ $, 2
.,,I, ''
, m .
t to~its;&&neat, Mth ctuise %ip:oper.at&r,
.N.b.
L

m3.
ody anilablc,m s-e
4~~ubtOgat;on . g ~ red
the u l t i m dish-
~
g had a$smeii.ult~ate~spon61'bilitybonlay reim-
ot ',h-m@ ,twC I I S ~who ~ ~did,&it.le
, or
sltn ~ ~in ~ ~~ ~6 ~ ~- i e ~ ~hi.vmes a s ~for . they dbad pepaid,
; which. ~ and
lhat was legallp obligated to honor %haagebricks
. &rice, &@t4tci,f3ay thatdebt.-en Mu6 from did not
: Reinsurahce Co.\.v. Centet' Mu~J~u~.' a:, ' r
'
658
' angy positio, of ,,ksjnre', dt'jhfOmed
N.W.2d 369;iZM)#W50.4tii~g'1. , ' '" '
.- . , . 7::rk'$l - i.: , ' claims, 'but W{S ,me&?;"dubfog@: :WtI1'
'*
ivhile
.'- , ?I'-,!,J-
4 ~ %

~ , ~ ~ . a' f. S
w&h{ masa.
t u , b ~ ~ v an,*l&m~
, i s
for .a .a@m*,;&ms.
subtogated t 6 ~ m e r sfights ' ,a&&t'i%dse ship
operator; w odt submgated to thiir 'barb-level
.parties h pwe-the ultimate dischargic..of adgbt ' pdori9 PP+OP b ,cruise ship ;,W@@r'sbad-
,*
by the pewn +do, in equity arid g d w e n c e , Nptcy , , , ~ e . , lBankr.C%dq 11, U,S.C.A.
7 bughY~twpay

. , ; .
for ittiAmerican Nat,~pjre&ts.,@.
v. Hugh& 6% N.Vf.U 330,20@3
.:--
%
:., 4 3 . e b r 3 B-R.
,,;* t . < . . , d ? . I\.,'1-
5 507(a)@),. (&.+h.re,fiemi
w.?& 28% ?%,
.
?&cration~, 294

hhssho.Ct. UW)3.' 4"sthbrbgatiani' %? &6@ii

a
1, , .I ;&- - .(

,.. . < .
t ' <T<J

. ~ e ~~ ( .i ~ ~~ ~ sg+~g raekap)uii,.jh
~ v~ , i
n
'dr an$thdr p~~ in the place 'of pf.tedlto$ so
that &.&ion' in wkose favor it ~s.ex&rnsed
,succe&itb the rights of the creditor hrelation to ., 9 : . , I . t:'.

" &e dcbt;+-Nmters W&.v. Federal.CodtpfesS :!-,I l r 3 , t .: ,#,I,:,. .,rtrt,l,~.'. . , I . ~ , S

. !, .,>.*>,. *. + r. k *-~,&,< ::,..

*
1

"$'ed~t~pp., m., q4,,<

~ ~ u b q a t i o +fined
ba;sjhe subqtituh,af apother,,petsoa iq the p b
nt~~
' ,&a creditqr*'sot h k $he person -jn ,we
favor if
is,dercised succee+ t~ the ,rights of .the.credit01
in relation to the debt.-Bankers 'Qkt,:Co., V.
ChUins, 12p S.W.3d 576, a m a l denied, and r e
jw&ng & d e a l of appead 13enitd.--Su@$ k'32.
8 .,.;! , f r ,,'i 4

. ~ ' r e ~ , ~ ~ s t o2002,,, r r [ "ls-

x,439 Mass. 1+08.,?;;subrog
tion" &,.the a c of ,one whQ. h&~paidv$n,+.obli-, SJE.2d k.
4'32. ?5;
 *Ma.@. WD. 2003. Biidbnca 8ujipon&gj i n
ageny decisioti !is"mbstantid" if it supports the,
matter at issue-Win$ 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 791,. 1 . 7
P L 0855) 1736;1311.1~.&if.131l.?3l$&fdin& a'! j
penalty fot having in passession the w* JOr an$, I
substantial part. or parts d game animefs m~m-1'
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, ~