Asia Optical Co. v. Eastman Kodak Co.
No. 12-3238-cv
United States Court of Appeals, Second Circuit
May 1, 2013
519 F. App‘x 24
PRESENT: ROSEMARY S. POOLER, RICHARD C. WESLEY and CHRISTOPHER F. DRONEY, Circuit Judges.
SUMMARY ORDER
Asia Optical Co. appeals from the July 18, 2012 judgment of the United States District Court for the Southern District of New York (Cote, J.) awarding Eastman Kodak Co. $33,726,531. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Asia Optical‘s principal argument on appeal is that the patent licensing agreement (“PLA“) and accompanying side letter are ambiguous because they can be read to have more than one meaning by a person aware of industry customs, practices and terms. Under New York law, which governs here, a contract is ambiguous if the terms “could suggest more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Int‘l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir.2002) (internal quotation omitted). We agree with the district court that the agreement is not ambiguous, and that paragraph 5 of the side letter explained that Asia Optical did not have to pay royalties if (1) it sold to a Kodak licensee who chooses to pay royalty itself; or (2) if Asia Optical performs only contract assembly for a Kodak licensee. To accept Asia Optical‘s reading would require finding that Kodak entered into a licensing agreement with Asia Optical that would allow Asia Optical to manufacture cameras for third parties who did not have licensing agreements with Kodak without either party paying Kodak for the use of its patents—a finding at odds with the record.
We have examined the remainder of Asia Optical‘s arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear its own costs.
Matteo ANELLO, Plaintiff-Appellee, v. Robert ANDERSON, Jr., Samuel Fruscione, Chris Robins, individually and as members of the Niagara Falls City Council, Defendants-Appellants.
No. 12-3238-cv
United States Court of Appeals, Second Circuit
May 1, 2013
519 F. App‘x 25
Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, and CHRISTOPHER F. DRONEY, Circuit Judges.
* The Clerk of the Court is directed to amend the caption as set out above.
Joseph S. Brown, Hodgson Russ LLP, (Daniel C. Olivero, on the brief) Buffalo, NY, for Appellants.
Appellants Robert Anderson, Jr., Samuel Fruscione, and Chris Robins, members of the Niagara Falls City Council, appeal from the district court‘s July 11, 2012 judgment denying summary judgment on their claim of qualified immunity with respect to Appellee Matteo Anello‘s First Amendment claim. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
“Ordinarily, orders denying summary judgment do not qualify as ‘final decisions’ subject to appeal.” Ortiz v. Jordan, — U.S. —, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011). There exists a “limited exception to the categorization of summary judgment denials as nonappealable orders,” id., for a “denial of a claim of qualified immunity, to the extent that it turns on an issue of law,” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This Court may “exercise interlocutory jurisdiction if the defendant contests the existence of a dispute or the materiality thereof” or “contends that he is entitled to qualified immunity even under plaintiff‘s version of the facts.” Tierney v. Davidson, 133 F.3d 189, 194 (2d Cir.1998).
Clearly established law holds that in a limited public forum the “government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991). For “expressive uses not falling within the limited category for which the forum has been opened, restrictions need only be viewpoint neutral and reasonable.” Hotel Emps. & Rest. Emps. Union Local 100 v. City of N.Y. Dep‘t of Parks & Recreation, 311 F.3d 534, 546 (2d Cir.2002). Even in a limited public forum, however, the “government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995).
In the instant case, it is a question of fact whether Anello was silenced in the limited public forum of the City Council meeting based upon his “opinion or perspective” or for other, permissible reasons. Id. Viewing the facts in the light most favorable to Anello, he was prevented from speaking at the City Council meeting be
Accordingly, the appeal is DISMISSED for lack of jurisdiction.
Jacob SHECHET, Plaintiff-Appellant, v. Robert DOAR, Patricia M. Smith, First Deputy Commissioner Human Resources Administration, Frances Parous-Abbadessa, Deputy Commissioner Office of Child Support Enforcement, Linda La Greca, Deputy Commissioner Office of Child Support Enforcement, Polina Kamara, Supervisor Office of Child Support Enforcement, Marvin Bettis, Specialist Assistant Office of Child Support Enforcement, Anna Kuchukova, Supervisor Office of Child Support Enforcement, Sean Banner, Office of Child Support Enforcement Representative, Arlene Weberg, General Counsel Human Resources Administration OSS, Roy A. Esnard, General Counsel Human Resources Administration, Department of Social Services, Defendants-Appellees.
No. 12-3240
United States Court of Appeals, Second Circuit
May 1, 2013
519 F. App‘x 26
PRESENT: ROSEMARY S. POOLER, CHRISTOPHER F. DRONEY, Circuit Judges, CATHY SEIBEL,** District Judge.
* The Clerk of the Court is directed to amend the caption as shown above.
** The Honorable Cathy Seibel, United States District Court for the Southern District of New York, sitting by designation.
No appearances.
SUMMARY ORDER
Jacob Shechet appeals from the July 25, 2012 order of the United States District Court for the Southern District of New York (Preska, C.J.) declining to reconsider its sua sponte dismissal of his