Gary CRUZ and Claude Pain, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. TD BANK, N.A., Defendant-Appellee. Geraldo F. Martinez and Joseph Cummings, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Capital One Bank, N.A., Defendant-Appellee.
Nos. 12-1200-cv, 12-1342-cv
United States Court of Appeals, Second Circuit
Decided: Dec. 18, 2013
742 F.3d 520
Argued: Dec. 12, 2012.
[T]he concern with finality [in the context of collateral relief] has special force with respect to convictions based on guilty pleas. Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas.
Id. at 784, 99 S.Ct. 2085 (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir.1971) (Stevens, J., dissenting)) (internal quotation mark omitted).
The prosecution tries to avoid our conclusion by saying both parties and the court contemplated there would be follow-on proceedings and its hands are now being unfairly tied. We disagree. There was no doubt there would be sentencing proceedings after Pena‘s guilty plea. But if the prosecution contemplated that it would be free to present the “death resulting” theory to a sentencing-only jury if the Supreme Court ultimately held that “death resulting” was an element of the crime, it was remarkably silent on the issue. Had it articulated such a position, there may well not have been a guilty plea.
V.
The district court‘s sentencing order is vacated and the case remanded for resentencing by the district judge in accordance with this opinion.
G. Oliver Koppell (Daniel F. Schreck, on the brief), Law Offices of G. Oliver Koppell & Associates, New York, NY, for Gary Cruz, Claude Pain, Geraldo F. Martinez, Joseph Cummings.
Alexander D. Bono, Ryan E. Borneman, Duane Morris, LLP, Philadelphia, PA, for TD Bank, N.A.
Robert Plotkin, Kurt E. Wolfe, Matthew A. Fitzgerald, McGuireWoods LLP, New York, NY, Washington, D.C., and Richmond, VA, for Capital One Bank, N.A.
Gina M. Calabrese, St. Vincent de Paul Legal Program, Inc., Elder Law Clinic, St. John‘s University School of Law, Jamaica, New York, and Claudia E. Wilner, Neighborhood Economic Development Advocacy Project Inc., New York, NY, for Amici Curiae AARP, District Council 37 Municipal Employees Legal Services, The Legal Aid Society, Lincoln Square Legal Services, Inc., MFY Legal Services, Neighborhood Economic Development Advocacy Project, Inc., St. Vincent de Paul Legal Program, Inc., The Urban Justice Center.
Before: POOLER, HALL, and CHIN, Circuit Judges.
PER CURIAM:
These appeals, heard in tandem, challenge two separate judgments entered in the United States District Court for the
The facts are set forth in detail in our opinion filed in this case on March 27, 2013. See Cruz v. TD Bank, N.A., 711 F.3d 261, 264-67 (2d Cir.2013). We assume familiarity with our prior opinion.
In both cases, the plaintiff judgment debtors maintained accounts with the defendant banks. The banks notified plaintiffs that their accounts were frozen pursuant to restraints served by third-party creditors. Plaintiffs allege, however, that the banks failed to provide them with certain required notices and forms, restrained their accounts, and assessed them fees, all in violation of the EIPA.
The district courts dismissed the complaints pursuant to
In our prior opinion, we certified the following questions to the New York Court of Appeals:
first, whether judgment debtors have a private right of action for money damages and injunctive relief against banks that violate EIPA‘s procedural requirements; and
second, whether judgment debtors can seek money damages and injunctive relief against banks that violate EIPA in special proceedings prescribed by Article 52 of the CPLR and, if so, whether those special proceedings are the exclusive mechanism for such relief or whether judgment debtors may also seek relief in a plenary action.
In an opinion filed November 21, 2013, the Court of Appeals answered the certified questions. Cruz v. TD Bank, N.A., 22 N.Y.3d 61, 979 N.Y.S.2d 257, 2 N.E.3d 221 (Nov. 21, 2013), available at, 2013 WL 6096124. It answered the first question in the negative, holding that “a private right to bring a plenary action for injunctive relief and money damages cannot be implied from the EIPA.” Id., slip op. at 23. As for the second question, the Court held that “a judgment debtor can secure relief from a bank arising from a violation of the EIPA in a CPLR Article 52 special proceeding” and that the special proceedings set forth in Article 52 are the “exclusive” mechanisms for relief. Id.
The rulings of the Court of Appeals resolve the principal claims before us. The district courts correctly dismissed plaintiffs’ claims to the extent they sought to assert a private right of action under the EIPA. Plaintiffs’ exclusive mechanism for seeking relief for alleged violations of the EIPA‘s procedural requirements is a special proceeding under Article 52 of the CPLR.
Plaintiffs also asserted—and the district courts dismissed—common law claims for conversion, breach of fiduciary duty, fraud, negligence, and unjust enrichment based on defendants’ alleged violations of the EIPA. See Cruz, 855 F.Supp.2d at 174-79; Martinez, 863 F.Supp.2d at 266-68. We affirm the dismissal of the common law claims substan-
We therefore find the district courts properly granted the motions to dismiss. Plaintiffs have, however, requested an opportunity to replead their claims in a manner consistent with the decision by the Court of Appeals. A party may amend its pleading once as a matter of right before a responsive pleading has been served and otherwise by leave of the court.
AFFIRMED and REMANDED.