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).
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JOAN PATRICIA PLANTE,
Plaintiff‐Appellant,
‐ v ‐ No. 14‐2891
GARY DAKE, President, The Stewartʹs Shops
Corp.; et al.
Defendants‐Appellees.
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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
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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
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