U.S. District Court, Western District of the State of NY Case

Daily Record (Rochester, NY), Aug 27, 2008

ERISA

Injunction

Kickham Hanley PC v. Kodak Retirement Income Plan

08-CV-6087

Judge Larimer

Background: The plaintiff is a Michigan-based law firm that brought action against the defendants, an ERISA plan, alleging entitlement to attorneys fees from a common fund allegedly secured for certain plan beneficiaries by the plaintiff. The plaintiff moved for a preliminary injunction preventing KRIPCO from disbursing full benefits to the plan beneficiaries pending the court's determination of whether the plaintiff is entitled to the attorneys fees it seeks to deduct from those amounts. The defendants crossmoved to dismiss the complaint.

Ruling: The court finds that plaintiff demonstrated the likelihood of irreparable harm if an injunction is not granted. The balance of the hardships tips in the plaintiff's favor. The motion for a preliminary injunction is granted. The defendants' motion to dismiss is denied.

Beth Ann Bivona of Damon & Morey LLP for the plaintiff, and Fred J. Aten Jr. of Harter, Secrest & Emery LLP for the defendant

Housing Law

Personal Jurisdiction

City of Geneva v. Serenity Manor Apartments

07-CV-6358

Judge Larimer

Background: The plaintiff city, on behalf of Brenda Bostic, brought suit against the defendant, Serenity Manor, its co-owners and general manager alleging Serenity Manor engaged in discriminatory housing practices against Bostic, a disabled woman, in violation of federal and local law. She was told, after responding to an advertisement for the apartments, that "we only take [the] working" before the phone was soon hung up on her. The defendants admitted to the GHRC's director that they do not rent to those in wheelchairs. On May 3, 2006, Bostic filed a complaint with the U.S. Department of Housing and Urban Development, pursuant to 42 U.S.C. [section]3610(a), and with the Geneva Human Rights Commission, pursuant to [section]158-17(A) of the Geneva Fair Housing Law, alleging discrimination in housing on the basis of disability. Bostic moved to intervene as a party plaintiff, and Serenity Manor moved to dismiss the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6) for lack of personal jurisdiction. It is not disputed that Serenity Manor Apartments, where each of the defendants resides, is located outside of the City of Geneva, although it is within the Town of Geneva.

Ruling: GHRC lacks personal jurisdiction to pursue claims against the defendants, who are non-residents of the City of Geneva. As such, the defendants' motion to dismiss the city's complaint is granted. However, "[r]equiring Bostic, an indigent plaintiff, to file a separate action when she has already appeared and filed a proposed pleading in this case, and where the court has already devoted appreciable time to becoming familiar with the salient facts and applicable law, would illogically elevate form over substance." Bostic's motion, therefore, is granted and she can proceed with her individual claim.

H. Todd Bullard of Harris Beach PLLC for the plaintiff, Karen M. Phillips of Monroe County Legal Assistance Center for the intervenor plaintiff and Lauren Michelle Miller for the defendant