Eastern District of New York

New York City Shows No Injury in Fact in Sale of Unstamped Cigarettes by Day Wholesale

Matthew L.M. Fletcher

Here is the opinion in City of New York v. Milhelm Attea & Bros. (E.D. N.Y.):

DCT Order Granting Summary J to Day Wholesale

An excerpt:

The City of New York has brought an Amended Complaint against the above-captioned defendants,  [2] cigarette wholesalers who are state-licensed cigarette stamping agents. The principal contention of the City is that the wholesalers violated the Contraband Cigarette Trafficking Act (“CCTA”), 18 U.S.C. § 2341 et seq., by shipping in excess of 10,000 unstamped cigarettes to Native American reservation retailers who re-sold the cigarettes to the public. According to the City, the former version New York Tax Law § 471 applied a tax to cigarettes sold to reservation retailers for re-sale to the public, and the defendant agents violated that provision by distributing large quantities of cigarettes to reservation retailers without purchasing and affixing the requisite state tax stamps. The City currently seeks civil penalties or disgorgement of profits pursuant to the CCTA, and also brings state law claims for public nuisance and violations of the Cigarette Marketing Standards Act (“CMSA”), New York Tax Law § 484. The parties have engaged in multiple rounds of motion practice, as well as some discovery, and now cross-move for summary judgment.

The defendants’ principal contentions are that the City lacks standing to pursue this action against them, that they were not legally required to  [3] affix state tax stamps to the cigarettes at issue, and that they lack the requisite scienter for liability. The City counters that the defendants’ arguments can all be rejected as a matter of law, and that there are no outstanding issues of material fact regarding its entitlement to monetary relief under the CCTA.

For the reasons stated below, the Court grants summary judgment to Day Wholesale, Inc. on the grounds that the City has failed to put forth sufficient evidence that it suffered an injury-in-fact from Day’s sales of unstamped cigarettes. The Court concludes that the City is entitled to summary judgment on the issue of the liability of defendants Gutlove & Shirvint, Inc. and Mauro Pennisi, Inc. for CCTA violations, and that some amount of civil penalties is appropriate. The Court will hold a further hearing for the purpose of assessing the penalty amount. The Court denies the cross-motions as to the City’s CMSA claim, and deems the public nuisance claim withdrawn.

Briefing in City of New York v. King Mountain Tobacco (Poospatuck Reservation)

Matthew L.M. Fletcher

Here are the materials in this Indian taxation case:

King Mountain Motion to Dismiss

City Opposition

King Mountain Reply

Federal Court Dismisses Membership Claims against Unkechauge Nation

Matthew L.M. Fletcher

Here is the opinion in Maynes v. Unkechauge Tribal Council (E.D. N.Y.):

Maynes v. Unkechauge Tribal Council

An excerpt:

Therefore, given that the Unkechaug Nation is an Indian Nation under federal common law, it enjoys sovereign immunity. Accordingly, the Court lacks subject matter jurisdiction to adjudicate the plaintiffs’ claims and the Amended Complaint is DISMISSED WITH PREJUDICE as against the Unkechaug Nation.

Golden Feather Smokeshop Defendants Held in Civil Contempt

Matthew L.M. Fletcher2 Comments

Here is the order: Order on Civil Contempt

One Federal Criminal Count Dismissed Against Indian Smokeshop Supplier…

Matthew L.M. Fletcher1 Comment

As a result of the Second Circuit’s recent Golden Feather decision.

Here are the materials in United States v. Morrison (previous post here):

Motion for Reconsideration

DCT Order Dismissing Count Two

An excerpt:

Based on the Second Circuit’s March 4, 2010 decision in City of New York v. Golden Feather Smoke Shop, Inc., 597 F.3d 115 (2d Cir. 2010), I have reconsidered, and changed my earlier determinations that defendant’s motions to dismiss Count Two on substantive due process grounds lacked merit. As a result, the conviction under Count Two is vacated, and the Count is dismissed.

Federal Court Grants Stay in Shinnecock Smokeshop Case Pending BAP Decision

Matthew L.M. Fletcher

Here is the most recent opinion in Gristede’s Foods v. Poospatuck (Unkechauge) Nation — DCT Order Granting Stay until August 2010

Federal Court Dismisses Shinnecock Counterclaims in Smokeshop Suit

Matthew L.M. Fletcher

Here is the most recent opinion in Gristede’s Foods v. Poospatuck (Unkechauge) Nation (E.D. N.Y.) — DCT Order Dismissing Shinnecock Counterclaims

An excerpt:

the plaintiff’s motion to dismiss the Shinnecock defendants’ counterclaims is granted. The Shinnecock defendants are granted leave to amend their counterclaims for abuse of process and tortious interference with prospective economic advantage within ten days of entry of this order.

Federal Court Holds Unkechauge Nation Retains Sovereign Immunity

Matthew L.M. Fletcher

Here is the opinion in this long-running dispute involving the Unkechauge Poospatuck smoke shop–Gristede Foods v. Unkechauge Poospatuck Smokeshop (E.D. N.Y.). Here, the court holds that the tribe is immune from suit, having demonstrated that it meets the Montoya test for tribal sovereignty — Gristede’s Foods DCT Order

An excerpt:

In light of the foregoing analysis of the evidence, the court finds that defendants have established by a preponderance of the evidence that the three Montoya criteria are satisfied. Consequently, the Unkechauge meets the common law definition of a “tribe” and is entitled to immunity from suit in the present action. “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Turner v. United States, 248 U.S. 354, 358 (1919). Supreme Court cases “recognize that the Indian tribes have not given up their full sovereignty” which is “of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete deference. But until Congress acts, the tribes retained their existing sovereign powers.” United States v. Wheeler, 435 U.S. 313, 322-323 (1978). There is no evidence that the Unkechauge waived or abandoned their tribal immunity or that Congress has abrogated the immunity of the Unkechauge. Because the Unkechauge is a tribe pursuant to federal common law, they enjoy sovereign immunity. Thus, in the absence of a waiver or congressional abrogation of immunity, the court lacks subject matter jurisdiction to determine plaintiff’s claims against the Tribe.

However, the smokeshop itself is not immune, the court applying a common law test to determine whether the smokeshop is an arm of tribal government:

The Poospatuck Smoke Shop has not satisfied these criteria. The only evidence that the Smoke Shop submitted in support of its status as an entity of the Unkechauge is Chief Wallace’s testimony that businesses on the Unkechauge tribal grounds must be licensed by the tribal council. (Wallace Tr. at 85, 157; 12/22/08 Oral Arg. Tr. at 41.) This testimony does not satisfy the above factors by a preponderance of the evidence for establishing that the Smoke Shop is an arm of the tribe. Therefore, the Poospatuck Smoke Shop’s motion to dismiss is denied.

Materials in the New York City Smokeshop Case

Matthew L.M. Fletcher

Here are the materials in the New York City v. Golden Feather Smoke Shop case (E.D. N.Y.), reported here. Earlier materials are here.

NYC Motion for Preliminary Injunction

Golden Feather Opposition to Motion

Peace Pipe Smoke Shop Opposition

NYC Reply Brief in Support of Motion (Attachment: IMO Gutlove & Shirvant)

Golden Feather DCT Order on Motion for PI

Federal Court Remands State Prosecution of Shinnecock Man to State Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in People v. Smith (E.D. N.Y.), a criminal prosecution of a Shinnecock man for taking fish illegally (People v Smith DCT Order). The defendant sought to remove the prosecution to federal court, asserting treaty and other rights.

Smith Notice of Removal

Motion for Remand to State Court

Letter in Opposition to Motion